NS v R [2012] NSWCCA 9
Dupas v The Queen [2012] VSCA 328
218 A Crim R 507
IMM v The Queen [2016] HCATrans 8
R v Qaumi (No 3) [2016] NSWSC 15
R v Shamouil [2006] NSWCCA 112
Source
Original judgment source is linked above.
Catchwords
NS v R [2012] NSWCCA 9
Dupas v The Queen [2012] VSCA 328218 A Crim R 507
IMM v The Queen [2016] HCATrans 8
R v Qaumi (No 3) [2016] NSWSC 15
R v Shamouil [2006] NSWCCA 112
Judgment (2 paragraphs)
[1]
Judgment
Two of the accused (Farhad Qaumi and Mumtaz Qaumi) object to the tender of evidence relating to telephone conversations between them and a third man (Mahmoud Atwa) on 11 April 2015. The learned Crown prosecutor presses the tender of the evidence. It is not suggested that the evidence is admissible against the remaining four accused persons. Details of the Crown case and some of the evidence proposed to be adduced by the Prosecutor have been set out in earlier judgments, in particular the judgment in relation to whether the counts on indictment should be severed or separated: see R v Qaumi (No 3) [2016] NSWSC 15.
Summaries of the telephone intercepts were tendered on the voir dire as part of exhibit CC. Four of the recordings (identified by reference numbers PN809, PN814, PN816 and PN826) were tendered as Exhibit DD and played in Court. I was also provided with the full transcripts of the calls as an aide memoir. The prosecution submits that some of the things said by Mumtaz and Farhad Qaumi constitute an admission or, at least, would be capable of being used as an admission by a jury acting reasonably. This submission is based on the accused saying at various times that one of the co-accused (Mr Zarshoy) may "roll on us" or "snitch on us brother, he'll give us up, I swear to god he'll give us up". Those words were spoken by Mumtaz Qaumi in a telephone conversation with Atwar at around 10:27 pm on 11 April 2015. Later that day Mumtaz Qaumi sought the advice and counsel of his older brother (Farhad) and, in the course of a lengthy conversation, Farhad said "look what he's charged with brother, what if he rolls on us bro."
There is also discussion in the calls of the possibility that Mr Zarshoy may be murdered. However, contrary to submissions made by Senior Counsel for each of the accused, I do not understand that the prosecution will seek to establish that the Qaumi brothers hatched a plot to kill Mr Zarshoy because they were concerned that he would "roll" on them. That does not seem to be the Crown's position and such a position could not be sustained given the full context of the conversations and considering the evidence contained in the telephone intercepts read as a whole. The true circumstance in which the observations were made by first Mumtaz and then Farhad Qaumi are as follows.
It appears that Mr Zarshoy or his brother owed money ($5,000 or $7,000) to the man Atwa and his family and/or associates. At the time of the telephone calls Atwa, Mumtaz Qaumi and Farhad Qaumi were in custody but each seemed to have access to telephones late at night. Atwa called Mumtaz Qaumi in an attempt to obtain Mumtaz's support in the financial dispute with Mr Zarshoy and his brother. In the first relevant conversation at 10:07 pm on 11 April 2015, Atwa made threats against the lives of the Zarshoy brothers (Faisal and "Nasser"). There seems to be no dispute that the reference to Nasser is a reference to the co-accused Mohammed Zarshoy. Atwa said, amongst other things:
"I'm going to fuckin', I'm gonna, I'm going to kill him, I'm gonna kill Nasser and whoever wants to back him, I'll fuckin kill them too, huh, so get ready, I'm gonna fuckin' go to war with all of youse, huh, tell that fucking cock sucker Faisal, yeah."
He complained to Mumtaz in the most strident and colourful terms of the fact that these "fucking little dogs are trying to rip me and trying to rip Hakim." He said that "I gonna fucking cut his brother Nasser and if he wants to get involved I'm gonna chop them…"
In a subsequent telephone conversation at 10:27 pm, after similar complaints and threats were made by Atwa, Mumtaz Qaumi made the first comment said to constitute an admission. The context (as recorded in the transcript) is as follows:
"Atwa: he's a fucking little dog. Uh …
Mumtaz: Yeah, yeah.
Atwa: If you want, if you want, brother, that, that Nasser, yeah?
Mumtaz: Yeah, yeah, yeah, but, listen, bro, what you do …
Atwa: I'm gonna chop him, brother, I'm gonna chop his (unintelligible), I'm telling you now.
Mumtaz: … oi listen. If, if you, if you're gonna get him, don't call out to him through the fence, because then he's gonna know something's up, yeah? Don't give him no heads up then. Don't give him heads up. Let him just come here, and just do, do what you've got to do in the showers, brother. But, listen …
Atwa: Yeah.
Mumtaz: … make sure, Atwa, make sure he doesn't survive, yeah?."
Atwa: Yeah, I'm gonna get him. I'm gonna fucking (unintelligible) …
Mumtaz: Because, because, listen, I'll talk, I'll talk to you tomorrow, but if he survives he's gunna snitch on all of us, hey. And he's on some big changes with me, yeah, that's the only reason I need him underneath my eye so he doesn't roll on us, brother."
Later in the same conversation and in a similar vein, Mumtaz said "he's gonna snitch on us, brother. He'll give us up, I swear to god he'll give us up … Brother I am innocent, I'm innocent brother, we've done nothing wrong."
There is a call recorded at 10:32 pm in which Mumtaz Qaumi spoke to Faisal Zarshoy and then a call recorded at 10:39 pm when Mumtaz again spoke to Atwa. In those conversations, Mumtaz appears to be playing both sides against the other and on a benevolent view attempting to broker some kind of peace. Thereafter he seeks the advice of Farhad Qaumi in a call recorded at 11:01 pm. Early in that conversation Farhad said:
"What's fucking Atwa saying bro? Tell him that blokes charged with fucking, tell him whatever, he's a gronk, or whatever, the blokes, look what he's charged with brother, what if he rolls on us bro?"
While I accept the defence submissions that the evidence is capable of a variety of meanings, and while I specifically accept that Mumtaz Qaumi appears to be playing the role of mediator, I do not accept the submission that the evidence is not relevant. I accept that the evidence is relevant in the sense that it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." At the very least, it supports an inference that Mr Zarshoy knew things about the Qaumi brothers that could be passed on to police and used against them. It suggests he was aware of criminal activity and that he had taken part in such activity with the Qaumis. Accordingly, the evidence is relevant.
The prosecutor seeks to assert that the conversations have specific relevance to the shooting at Revesby Heights and the murder of Mahmoud Hamzy. This is based on the words used by both Farhad and Mumtaz ("look what he's charged with" and "he's on some big charges with me") and the fact that the only substantive offences with which Zarshoy is charged arises out of the Hamzy shooting. I accept that it is possible that the evidence could be used in that way. However I am of the view that to use it so would be to engage in a degree of speculation. Controversy still attends to the extent to which a trial Judge assessing the "probative value" of evidence may or should consider the reliability of the evidence [1] but it seems that, even in New South Wales, a trial judge might properly have regard to the existence of competing or alternative inferences that arise from the evidence. [2]
As I have said, I accept the defence submissions that, taken globally, Mumtaz (and Farhad indirectly) are attempting to resolve the dispute between Atwa and Zarshoy. It is critical to observe that the entire dialogue arises as a result of that dispute. Mumtaz Qaumi's primary hope appears to be that the debt will be repaid and that there will be no further violence. His motive appears to be selfish. First, violence may interfere with his classification "in the main" gaol. Second, violence that leaves Mr Zarshoy alive, may result in Zarshoy "rolling" or "snitching". It is in that context that he tells Atwa that, if it does come to violence, Atwa should make sure that Zarshoy is killed.
While I am unable to accept the defence submission that the evidence is not relevant, I do accept the alternative submission that its probative value is "outweighed by the danger of unfair prejudice to the accused".
The probative value of the evidence is reduced by virtue of a number of factors. First, it is unclear whether the brothers are concerned that Mr Zarshoy might "roll" or "snitch" specifically in relation to the Hamzy murder although the context may suggest that this is the most likely explanation for their concern. However, there are other inferences that could be drawn given the chronology of events and the details of Zarshoy's involvement in the Brothers for Life, Blacktown Chapter. [3]
Secondly, as Senior Counsel for Farhad Quami submitted, a concern that a witness might "roll" does not necessarily carry with it the meaning that they will roll and tell the truth. It is also possible that a witness might "roll" and provide false information to the authorities.
Thirdly, the context in which the comments are made give rise to the possibility that the concern that he might "roll" would arise if the violent plot by Atwa (which had nothing to do with the Quami brothers) failed and Zarshoy was left having been attacked but still alive. In those circumstances, Mumtaz expresses concern that Zarshoy might be motivated to go to the police and provide information (whether it be true or false, it is not canvassed in the conversation).
Accordingly, while I accept that the evidence has some capacity to be used by a jury as an admission, the probative value of the evidence is not particularly high.
Against that the potential prejudicial effect is substantial. Mumtaz Qaumi demonstrates a high degree of callousness towards his former colleague. There is a danger that a jury confronted with evidence that Mumtaz merely acquiesced in the threat to "cut" or kill Zarshoy, it would use the evidence improperly against him. While warnings could be given as to the limited use of the evidence, these would serve to highlight what is otherwise a very small part of the prosecution case. The evidence also discloses or suggests an ongoing involvement in gangland activities even after being incarcerated. I gather from earlier submissions that the telephones were illegally obtained or contraband within the gaol.
Taking all of those matters into account I am satisfied that the probative value of this evidence is outweighed by the danger of unfair prejudice to the accused. In those circumstances the terms of s 137 Evidence Act 1995 (NSW) are mandatory and I "must refuse to admit the evidence".
Accordingly, I rule that the evidence of telephone conversations between Mumtaz Qaumi, Mahmoud Atwa, Faisal Zarshoy and Farhad Qaumi on 11 April 2015 (reproduced in the summary behind Tab 3 of voir dire Ex CC) is not admissible.
[2]
Endnotes
For example, compare R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [60]-[68] with Dupas v The Queen [2012] VSCA 328; 218 A Crim R 507 at [63] and see R v XY [2013] NSWCCA 121 and IMM v The Queen [2016] HCATrans 8.
See R v XY at [88]-[89] per Hoeben CJ at CL citing DSJ v R; NS v R [2012] NSWCCA 9 at [10] (Bathurst CJ); [11] (Allsop P) and [78] (Whealy JA).
See for example Ex T (chronology) and Ex AA (summarising the participation of Zarshoy with the group).
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Decision last updated: 05 April 2022