Objection is taken to the tender of an audio recording and associated transcript of a telephone intercept between the accused Farhad Qaumi and another man (Pasquale Barbaro). The prosecution alleges that the recording contains an admission by the accused. The accused says that there is no such admission. These opposing submissions arise because of a difference of opinion as to what the parties say that they can hear in the recording. I accept that counsel on each side genuinely believe they hear what they are submitting that they hear. This is not a case where the quality of the recording is poor. The recording is of good quality and the words used by the parties to the conversation are, for the most part, completely clear. However, on two or three critical occasions the exact words used by the accused are open to legitimate debate.
I was invited to listen to the recording without the aid of a transcript. I did this twice in the courtroom, once with the aid of headphones which increase or enhance the volume (but not, I think, the quality) of the recording. I then listened to the recording three more times in court, this time with the aid of a transcript which contained the version contended for by both parties. I have since listened to the recording on multiple occasions in chambers using headphones. This was done with the consent of the parties after I had heard their submissions and reserved on the question of admissibility.
The counts to which the alleged admissions relate are counts 4, 5 and 6. The offences charged by those counts arise out of the shooting of a man called Michael Odisho. There has been a good deal of evidence about Mr Odisho although he has refused to participate in the proceedings. Indeed, he threatened to do what he could to cause the proceedings to abort if he was forced to give evidence. The Crown declined to call him. The parties are in the process of reaching agreement as to how any relevant statements made by him can be placed before the jury. In any event, there is clear and seemingly uncontested evidence that he was the target of a shooting that occurred at his home in Winston Hills on 3 November 2013. His mother gave evidence of that event as did the people who admit to carrying out the shooting. It seems not to be in dispute that he was a member (or perhaps an enforcer) in a group known as the Bankstown Brothers for Life. That group was the target of five shooting incidents with which the current proceedings are concerned. The people who committed the shootings were members of a rival group, the Blacktown Brothers for Life. Farhad Qaumi is alleged to be the leader of that group.
It is the Crown case that the accused solicited the murder of Mr Odisho (count 4) and was party to a joint criminal enterprise to shoot at him with intent to murder him (count 5). Count 6, alleging a lesser specific intention, is an alternative to count 5. The only direct evidence against Farhad Qaumi comes from two informant witnesses (known as Witness L and Witness M) who allege that Farhad Qaumi nominated Mr Odisho in a list of people that he asked or directed to be targeted after the initial shooting murder of Mahmoud Hamzy on 29 October 2013. The evidence of Witnesses L and M was subject to a substantial credibility attack and the jury was given a strong warning that their evidence may be unreliable for a variety of reasons. Similar directions will be given in the summing up.
The conversation between the accused and Mr Barbaro took place on 30 December 2013. I gather there is no dispute as to the identity of the participants. The conversation commences with Mr Barbaro attempting to ascertain the identity of a person who had asked to meet him in Auburn. On the prosecution version, Mr Qaumi said words to the effect of "Is that the one [I] got popped?" [1] and "That the one I sho…" On the defence version, Mr Qaumi said "that's the one that got sho.. I think that's the one that got popped". There are three occasions (although the transcript records only two) where the Crown contends that the word "I" or "I got" can be heard in the recording. There is little doubt that the person being referred to is Mr Odisho. He is referred to as "Mikey" and as "Fred's coey." Throughout the trial, many witnesses have referred to him as "Mikey". Later in the conversation Mr Qaumi says that he heard about the shooting of Mikey "on the news".
Before returning to the arguments and my consideration of the evidence, I will set out the entirety of the conversation. The relevant passage is italicised and emboldened. I have placed in square brackets the competing version provided by the defence.
"LEGEND:
VI: Farhad QAUMI
V2: Pasquale BARBARO
VI: Smash it on the head!
V2: Fucking settle down
VI: Yeah brother?
V2: Mate they're gonna think you're not talking about fish
VI: Na, Wallah, I'm talking about fish. I'm telling Tallo" Kill it, put it in the...
V2: You all right?
VI: Hey?
V2: You all right?
VI: Yeah brother, I've just been fishing brother, I've been out all day brother, on the boat
V2: This fucking dog rings me today'
VI: Who?'
V2: I never heard of him in my life, I don't know who the bloke is, some cunt, he ring's me up and goes,
VI: Who?'
V2: Huh?'
VI: Who?'
V2: 'Some cunt, Mike or Mick or Mikey or something'
VI: Yeah'
V2: 'He ring's up, "Yeah mate", I go, "Yeah', he goes, "Where are ya?", I go, "In the city who's this?" He goes, "Don't worry who it is". He goes, then he goes like this, he goes, "You think your Afghan mates a sick cunt?", I said, "Who, brother tell me who?", I said "Who, who, who are you talking about?" Anyway, then he went on and on about it, it's on my phone, anyway, I said, "Oh yeah, anyway, where are ya?" He goes, "Auburn". So I went to Auburn, just to see who it is, I just want to go see who it is, may be he's got a hot sister or something, you know'
VI: Yeah'
V2: And I go there, texting, texting, nah, we're at Yagoona KFC now, so all right, I went to Yagoona KFC, where are ya, eh, we had to go catch up another, I go "Who is it?" They go "Don't worry", he goes this and that, der der der, anyway, you ever heard of this cunt? He goes, his here, his there with um, with Weiss and some other cunt'.
VI: Is that the one that [I] [2] got opped, popped or something?'
V2: I don't know, I don't know him at all, I don't know no cunt that name'
VI: 'Mikey?'
V2: Yeah'
VI: That's the one I sho...., I think thats the one that got popped, I think'. [That the one that got sho… I think that's the one that got popped, I think.]
V2: 'Aye?'
VI: That's the one I got sh.., is he Assyrian?' [That's the one that got sh … is he Assyrian.]
V2: I don't know what he is, he reckons, he goes'.
VI: 'Is it that Fred, Fred, Fred's coey'
V2: I don't know, don't know the cunt'.
VI: Yeah, it's probably him'.
V2: 'Say, come down, "Who you with, where are ya?, again, nah, he goes Listen, I'm with that, this, that, all these names, you know, Weiss?, fucking Wally, you know, I said, oh yeah, I said anyway, I'm there, and they said your Afghan mate thinks he's a sick cunt, I said I don't know any Afghan's, I said I don't know none, like none, I don't know any, who are you talking about?'
VI: 'Err'
V2: 'and then they started to bridge up, I said anyway, we're talking on the phone, I don't know what you're talking about but 111 come and see youse, you know, where are ya?'
VI: 'Err,
V2: Brother, I wasted three and a half hours, I went here, here, here, here, nowhere, nowhere, you know'.
VI: 'Mmm'
V2: Yeah'
VI: Why did they call you for but?'
V2: 'Just called me, being sick cunts, they wouldn't say who is it, I'm saying who is it, who is it, all they said is that, I don't know why they called me, they didn't want to see me'
VI: Yeah, but why would they call ya, why would they call, they got, they, that little cocksucker, aye'.
V2: They were calling me, they wanted to see me, I went to see them and they didn't want to see me'.
VI: Yeah, that little cocksucker'
V2: Yeah'
VI: Yeah'
V2: 'Nah, but you know what they are doing, they're just trying to talk, talk rubbish on the phone, you know like, we don't do nothing, you don't do nothing, they're trying to get us to talk, you know'
VI: Yeah'
V2: But then, anyway, what they tried to do, they tried to go out of their way to mention all this about some Afghani, this and that, (unclear) I said, I don't know man'
VI: Yeah'
V2: Yeah'
VI: "Err'
V2: You don't speak to no-one that would fucking, huh?'
VI: 'On the phone?'
V2: Yeah, on the phone'
VI: Yeah'
V2: 'So anyway'
VI: Yeah (laughs)'
V2: Yeah, funny cunts, brother I went there, you know how far it is, it's fucking an hour's drive'
VI: 'From you'
V2: Yeah, I went there, Auburn, then I went to Yagoona'
VI: 'You know what it is brother, it's a facade brother, it's a facade, you know what a facade is?
V2: Yeah'
VI: There trying to put on a facade brother, you know what I mean brother'
V2: Yeah, but then, then they called, I said yeah yeah, anyway, anyway, like, I said I'll come down'
VI: Yeah'
V2: I said, anyway, you know who this, I said, "Who's that, who's with ya, who are ya?", like, who, whoever the fuck it is. He goes "Don't worry brother, you'll see us when you see us, bring your sick cunt Afghan mate". I said, "Nah, nah, I don't have any Afghan mates, I don't know anyone Afghan", I said anyway, I'll come down, this and that and they go, "Oh yeah, I'm with Weiss, we're all with Weiss", I said, "Yeah, you're with Weiss, tell him I want to see him, I've been dying to see him".
VI: 'Oh, is that what they called you, him, Weiss?'
PB : 'Nah, then they bring that, that's in the third call, I said, "Oh yeah, that sick cunt", I said "I'll come and see him, have him with ya", I said, "But listen, anyone who's friends with him, or anyone who says hello to him, I'm putting on the dog" I said, "I'll be there soon, so don't talk on the phone"
V2: Yeah
V2: So I went there, no one to be seen, they said this Park, this Street in Auburn, no one there, I sat there for half an hour, (unclear) Mate, I sat there, anyway, it doesn't matter'.
VI: I'll talk to ya when I see ya brother, I'll talk to ya when I see man, don't worry about it'.
V2: 'Nah, I'm not worried, but I'm just saying, have you heard of this cunt, no way, what do you mean, innocent brother'
VI: Bro, the only Mikey that I heard of cuz is the one that got, that got, Sh" that, that I, that's what I heard on the news and that, that he got shot'
V2: Yeah, I never even heard of any Mikey'
VI: 'that's, that's, that's the only one that I've heard, it's that that Fred's coey's brother,
V2: Ahhhh
VI: I, I just seen it on the news I don't even know that bloke, either, you know what I mean'
V2: 'Ahh, yeah'
VI: It's the only one I know brother'
V2: Why are they saying Afghan, what's in their hearts to say Afghan, are they trying to talk something on the phone, you know what I mean?'
VI: Yeah, I don't know man, but how do they even know that you know me?'
V2: 'Nah, but that's what I'm saying, I said, "Idon't know an Afghan", but I see ya, where are ya, you know'
VI: Yeah, yeah'
V2: Yeah, then they said, "Don't worry, we're not stupid, all good brother"
VI: Yeah'
V2: Yeah, he rang with his number on it and everything'
VI: 'He rang with his number on?'
V2: Yeah, his numbers on'
VI: 'Oh yeah'
V2: Yeah'
VI: 'Forget em brother, don't worry about em'
V2: I'm not worried about them brother, I'm just asking if you know the bloke, I don't give a fuck, I went there and wasted my day, I was just gonna say hello, see, put a face to the voice you know'.
VI: Yeah, yeah, I'll tell ya, I'll talk to ya when I see ya face to face brother, aye'
V2: Yeah, anyway, it's nothing, I'm just letting ya know if you heard anything, you know'
VI: 'Nah, nah, nah, nah, nah'.
V2: Yeah but how did your fishing go, all right?
VI: Very good brother, just fucking, yeah. Here, there's a few of us here fishing
V2: All right, sick cunt, have a good day anyway
VI: Yeah, thanks brother
V2: All right brother
VI: I'll speak to you soon cuz
V2: Take care
VI: Bye"
Senior Counsel accepted that generally such matters are questions for the jury. However, it was contended that if my factual finding was that the defence version of what is recorded is the correct one, the evidence is not relevant because it contains no admission. It was accepted that if I formed the view that it was "open" to the jury to accept the Crown's interpretation, the evidence would be admissible. [3]
There is little doubt that questions such as the present are generally matters to be determined by the tribunal of fact. There is a clear delineation between the role of the trial judge and that of the jury. However, there will be occasions where a recorded conversation is so unclear that a trial Judge will reject the evidence because it cannot "rationally" effect an assessment of a fact in issue: s 55 Evidence Act 1995 (NSW). There may be other cases where the quality of the recording is so poor that a judge might consider that tendering the evidence may be a waste of time: s 135 Evidence Act, cf R v IMM [2016] HCA 14 at [58]. However, generally such evidence will be admitted and "it will be for the jury to ultimately to ascribe a meaning and import, if [it] can": cf R v Cornwell [2003] NSWSC 97 at [29]. Where the "admission" is equivocal, there may be other bases for excluding the evidence: R v Doolan [1962] QD R 449.
In view of the role of the jury in determining factual disputes, I was somewhat diffident as to the importance of any opinion that I may form as to what was said by the accused. However, in deference to counsel, I have undertaken a somewhat painstaking process of attempting to discern what was said. Having listened to the relevant portion many times, I am of the opinion that it would be open to the jury to accept parts of the Crown's version of the conversation. On my perception, or opinion, on listening to the recording many times, the accused used the word "I" on at least two relevant occasions. My perception was that he said "the one I got opped, popped" and "the one I got sho.."
I accept that another listener may form a different opinion but I have concluded that the version contended for the Crown is one that is "open" to the jury to accept.
Given appropriate directions, I can see no danger of the jury misusing the evidence or of any unfair prejudice. The jury will be directed that unless it clearly hears the words in the way for which the Crown contends, the evidence cannot be used against the accused in any way.
For those reasons, I find that the evidence is admissible.
Further submissions were made as to the danger of providing a transcript which has the capacity to subliminally impact upon the listener's perception of what is said. I accept that submission. The jury will not be provided with a transcript of the telephone intercept unless the parties (and, in particular, the accused) takes the forensic decision that it should be provided with a transcript with the controversial portion edited out or a transcript that contains both versions.
For those reasons, my rulings are as follows:
1. The recording of the telephone intercept is admissible.
2. The transcript is not admissible.
[2]
Endnotes
The word in square brackets - [I] - is not contained in the transcript produced by police but the learned Crown Prosecutor contended that he could hear the word "I" in that part of the conversation.
This [I] is not included in the police transcript. See note [1] above.
T 4891.
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Decision last updated: 30 November 2016