R v Qaumi & Ors

Judgment

1. The accused Farhad Qaumi objects to the prosecution leading evidence of a portion of a conversation that he allegedly had with a police officer, Ben Sharkey, whilst in custody at the Wyong Police Station on 8 January 2014. The objection was raised shortly before Mr Sharkey was to give evidence on the sixty eighth day of a jury trial. The part of the conversation to which objection is taken is recorded in paragraph 26 of Mr Sharkey's statement: "26. He said, 'What if I gave you a package? Could you do something for me?' I said, 'What do you mean?' He said, 'Guns bro. Fuckin' big ones. Maybe get rid of some charges?' I said, 'What guns?' He said, 'Fuckin' massacre guns bro. I do something for you. You can tell your boss, you got an arsenal off the street and I get off some charges. Huh?' I said, 'Mate I'll talk it over with my sergeant and we'll have a chat.'"
2. The conversation was not electronically recorded. There is no video or audio recording of the conversation. The evidence on the voir dire established that there were a variety of recording devices available at the police station. Notes were made of the conversation some time later but Mr Qaumi was not given the opportunity to read those notes and to adopt (or dispute) their contents. Senior Counsel for Mr Qaumi initially objected on the basis that the evidence was inadmissible under s 281 of the Criminal Procedure Act 1986 (NSW). As the argument developed, submissions were made as to the whether the evidence was relevant, whether the prosecution was seeking to use the evidence as tendency evidence (in the absence of proper notice), and whether the evidence should be excluded under ss 135, 137 and, finally, s 90 of the Evidence Act 1995 (NSW).