In the course of his cross-examination of Jamil Qaumi, counsel for Mohammed Kalal sought to introduce evidence to rebut evidence by which it was contended that Jamil Qaumi raised his good character. Mr Kalal relied on s 110 of the Evidence Act 1995 (NSW). Counsel for Jamil Qaumi opposed the cross-examination. She was supported in her opposition by Senior Counsel for Farhad Qaumi. Senior Counsel for Mumtaz Qaumi said that he felt uncomfortable about it. The Crown Prosecutor indicated that he did not seek leave to cross-examine under s 110 of theEvidence Act. In spite of the submissions of counsel for Jamil Qaumi and the serious misgivings I had as to the purpose for which the relevant evidence was elicited, I refused the application to introduce the evidence. These are my reasons.
Section 110 provides as follows:
"110 Evidence about character of accused persons
(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.
(2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.
(3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect."
The evidence that created the controversy was elicited in the last question asked of Jamil Qaumi in his evidence in chief:
"Q. Sir, when you entered custody on 7 November 2013, was that the first time you had been in custody before?
A. Yes."
Counsel for Mr Kalal submitted that this question and answer constituted, at least by implication, evidence that Jamil Qaumi was a person of good character. He sought to cross-examine Jamil Qaumi to rebut that suggestion. He sought to introduce two pieces of evidence. First, he sought to prove that Jamil Qaumi has a prior conviction for common assault. Second, he sought to establish part of the circumstances surrounding an incident that occurred in the courtroom on 1 August 2016. The circumstances of that incident are set out in an earlier judgment: R v Qaumi & Ors (No 55) [2016] NSWSC 1068 at [2]:
"The incident involved two of the accused men (Mumtaz and Jamil Qaumi) violently setting upon one of the other accused men (Mohammed Kalal). The incident was captured on the CCTV and a disk containing the footage captured by a camera located above the dock area was tendered on the voir dire as exhibit VD PPP. Having reviewed the CCTV footage, it appears that that the accused Mumtaz Qaumi attempted to use a pen as a weapon and struck a blow towards the upper body, neck or head of the accused Mohammed Kalal. He was almost immediately restrained by officers of the Department of Corrective Services. Jamil Qaumi followed Mumtaz Qaumi across the dock and, after Mumtaz Qaumi was removed, threw two or three punches at or towards the head of Mohammed Kalal."
A somewhat complicating factor is that Mr Kalal is attempting to mount a defence of duress. However, it was not suggested by counsel for Mr Kalal that the evidence of Jamil Qaumi committing two assaults (one conviction and one in court) could be introduced if it were not for the evidence elicited in chief. In other words, it was not submitted that Mr Kalal would otherwise be entitled to introduce the evidence as relevant to his case of duress. It is the introduction of evidence of good character in Jamil Qaumi's own case that is said to give rise to the opportunity to adduce evidence that he has been convicted of assault and that he assaulted Mr Kalal in the courtroom.
The terms of s 110, and in particular the expression "if evidence adduced to prove", confirm that the raising of good character involves a "subjective intention on the part of the accused": Odgers, Uniform Evidence Law, 12thed(2016), Lawbook Co [EA.110.90]. In PGM v The Queen [2006] NSWCCA 310; 164 A Crim R 426, Barr J (with whom McClellan CJ at CL and Buddin J agreed) said at [35]:
"35.The raising of good character requires a conscious decision on the part of the accused. It has been held that such evidence must be intentionally and deliberately adduced for the purpose of raising character before the Crown may be granted leave to cross-examine: Gabriel v R (1997) 76 FCR 279. See also R v Bartle & Others [2003] NSWCCA 329. So good character is not raised, for example, where a witness volunteers the evidence: R v Redd [1923] 1 KB 104 at 106."
Accordingly, the opportunity for another party to rebut evidence of good character only arises where evidence is elicited in a calculated attempt to establish good character (either generally or in a particular respect).
Confronted with Mr Kalal's application, counsel for Jamil Qaumi argued that the evidence was adduced for a purpose other than to establish good character. Counsel's arguments were unpersuasive and had the hallmarks of retrospective self-justification.
Counsel commenced by suggesting that the evidence was introduced to rebut the prejudice that arose from the fact that the jury is aware that the accused was in custody. However, that matter was subject to discussion on many occasions in the early stages of the trial and on 27 May 2016 the jury was given directions with which all counsel agreed [1] . In any event, the only process of reasoning by which the evidence could ameliorate the supposed prejudice is by inviting the jury to speculate that the fact that Jamil Qaumi was in custody for the first time was because he was previously a person of good character (or at least a person with no serious criminal record).
Counsel then referred to four parts of evidence concerning Jamil Qaumi's conduct while in gaol. It was submitted that the evidence was introduced to put that in context. If that were the case, one would have expected there to have been cross-examination of the relevant witnesses or for the evidence to have been led during that part of Jamil Qaumi's evidence in chief where those matters were raised.
The first example was that shortly after he went into remand he was shouted at by Mohammed Hamzy (the target of the first shooting in which Mahmoud Hamzy was killed by being shot in the head). Jamil Qaumi's evidence was that he shouted and swore back at Mohammad Hamzy. I was unconvinced that the fact that this was his first time in gaol had any capacity rationally to affect any relevant issue that arises from that incident. Counsel could not explain how the fact that this was his first time in custody impacted on the jury's consideration of his conduct in shouting back at Mohammad Hamzy. When this evidence was elicited in chief, no questions were asked to suggest that Jamil Qaumi's behaviour was motivated or explained by the fact that he had been taken into custody for the first time. [2]
The next incident concerned evidence that Jamil Qaumi got a tattoo when he was in custody. The tattoo in question was "187". Section 187 of the Penal Code of California proscribes the offence of murder. Street gangs in the United States are known to have that tattoo as a badge of honour: see, for example, People v Ochoa(2001) 26 Cal. 4th 415; see also the Urban Dictionary(online). [3] Witness I gave evidence of Jamil Qaumi's tattoo. [4] Jamil Qaumi's evidence was that everybody was getting tattoos and that he just got the same tattoo as the guy before him. Again, no evidence was adduced at that time to suggest that he did this because it was his first time in custody. [5] The link between those two things is tenuous at best.
The third issue concerns evidence that Jamil Qaumi shared a cell with Mohammed Kalal. The Crown case, and Mr Kalal's case, is that Jamil Qaumi did this to prevent Kalal from "rolling over" and providing information to the police. Jamil Qaumi's case is that he wanted to stay with Mr Kalal for his personal safety. I accept that there is a possible connection, albeit slight, between that controversy and the fact that this was Jamil Qaumi's first time in custody. However, if that were truly the purpose for which the evidence was introduced it would be expected that it would have been introduced either in cross-examination or at the time that the evidence of sharing a cell was elicited from Jamil Qaumi. [6]
The final matter upon which counsel relied was correspondence from Witness M in which she expressed concern for Jamil Qaumi being in gaol. In addition to the letters, there were recorded conversations between Witness M and Farhad Qaumi. Witness M said she visited the Qaumis in gaol, sent them letters and said the things that she said because she felt pressured and threatened by Farhad Qaumi. The Qaumis' case is that her conduct was motivated out of genuine affection and concern. Again, I can see that the evidence that this was Jamil Qaumi's first time in gaol may have some slight relevance to that issue. However, once again, if that was the true purpose for its introduction it would have been elicited in cross-examination of Witness M.
If the evidence was elicited to explain Jamil Qaumi's conduct in gaol or in relation to any other issue, it would have been led during relevant parts of his evidence in chief. It was not. The transcript records the circumstances in which the evidence was elicited:
"CARROLL: Your Honour, I wonder whether we could take a short break. There is just one further matter and I just wanted to take a moment, just to check my notes.
HIS HONOUR: We will be taking a short mid-afternoon adjournment presently anyway so if it is convenient now, Ms Carroll, we will do it now.
CARROLL: Thank you, your Honour.
HIS HONOUR: Members of the jury, we will be perhaps 10, 15 minutes and we'll see you just after 3 o'clock.
IN THE ABSENCE OF THE JURY
HIS HONOUR: Mr Qaumi, if you can go with the officers back to the dock, thank you. Is there anything you need from me, Ms Carroll?
CARROLL: No, your Honour, but I do need to speak to the Crown.
HIS HONOUR: Thank you.
SHORT ADJOURNMENT
CARROLL: Your Honour, can I just indicate before the jury come back thank you for that opportunity, I spoke to the Crown - the Crown doesn't oppose my raising the limited conviction history that Jamil Qaumi has. There are two convictions arising out of the same matter. It is a common assault and unlawfully leave restricted area of station. That was back on 31 March 2011.
HIS HONOUR: To what end? Are you asserting that your client is otherwise a person of good character?
CARROLL: Your Honour, that in conjunction with that this was his first time in custody. It is a limited raising of character in that sense.
HIS HONOUR: It may be the Crown doesn't oppose you adducing it but what do you say to the proposition that he would be entitled to cross examine on it?
CARROLL: On that matter raised?
HIS HONOUR: No, on the assertion that he is a person of good character apart from those things? If you have got an undertaking from the Crown not to do so then I can happily let it proceed. I just don't want you to be sucker punched as it were, not that I am suggesting the Crown would do that.
CROWN PROSECUTOR MCKAY: I think my friend needs to - where she wants to take that and what is the limited way in which your Honour would be directing.
HIS HONOUR: Exactly. That is precisely the point of my question.
CROWN PROSECUTOR MCKAY: It is a common assault so an offence of some violence on charges involving violence. I am not sure what - normally it would be led that it is a conviction which is away from the charges they are facing, for example. I don't oppose the way my friend wants to lead it but it may be an issue as to what direction, if any, or limited direction my friend asks for, whether the Crown would oppose that.
HIS HONOUR: There is a common assault and what was the other charge?
CARROLL: Unlawfully leave restricted area of station.
HIS HONOUR: What does that mean?
CARROLL: I think it is attempting to leave or leaving the station without paying for your ticket.
HIS HONOUR: I see. A railway station.
CARROLL: A train ticket. Yes, a rail matter. Would your Honour allow me just one moment?
HIS HONOUR: Yes. There is CCTV footage of your client advancing across the dock and throwing three punches at the head of Mr Kalal.
CARROLL: Yes, your Honour.
HIS HONOUR: If you are happy to proceed on the basis that you are asserting that apart from this he is a person of good character, then you take your chances. I am not going to make any advance rulings on what can and can't be done in rebuttal of that.
CARROLL: Yes, your Honour.
HIS HONOUR: Are we ready for the jury, Ms Carroll.
CARROLL: Yes, your Honour.
HIS HONOUR: Thank you, can Mr Qaumi be brought back to the witness box, please.
Sorry, I said I wouldn't make an advance ruling. I take it you are not seeking one.
CARROLL: No, your Honour.
HIS HONOUR: Thank you.
IN THE PRESENCE OF THE JURY
HIS HONOUR: Thanks, members of the jury. Mr Qaumi, you remain on the oath you took earlier today.
WITNESS: Thank you, your Honour.
CARROLL
Q. Sir, when you entered custody on 7 November 2013, was that the first time you had been in custody before?
A. Yes."
That was the last question and answer in Jamil Qaumi's evidence-in-chief. I have italicised the most significant portion of the exchange for present purposes but the whole passage must be considered in context. From that passage, and from the context in which the evidence was elicited (removed from any of the areas that counsel, in retrospect, suggested that the evidence was relevant to), it is difficult to escape the conclusion that counsel was attempting to slip into the evidence something that hinted that her client was a person without any significant criminal past. That is "evidence adduced to prove (directly or by implication) that a defendant is a person of good character" either generally or in particular respect. Ordinarily that would mean that evidence could be adduced by the prosecutor or by a co-accused to rebut that suggestion. The evidence of the previous conviction for assault and the evidence of the accused throwing punches at a co-accused in the dock is evidence capable of rebutting the implication that Jamil Qaumi is a person of good character.
However, I concluded that the circumstances were such that I should not permit such evidence. There were five main reasons for this conclusion.
First, the exchange set out in [15] of this judgment demonstrates that counsel retreated from the attempt to adduce her client's limited conviction history. That may suggest a retreat from her attempt to adduce evidence that involved, as she put it, "a limited raising of character in that sense".
Second, on a further review of the CCTV footage of the incident in court, one interpretation is that Jamil Qaumi joined the fracas to support his brother. It may be that a more likely interpretation is that Mumtaz and Jamil Qaumi had jointly planned the assault. Things happened so fast that it is difficult to know with certainty. Counsel for Mr Kalal indicated that he did not seek to lead evidence of Mumtaz Qaumi's involvement. This means that the jury may get a distorted understanding of what happened. The only way for the jury to receive an accurate understanding of what occurred is by playing the CCTV footage. This would operate unfairly to Mumtaz Qaumi notwithstanding that it was his outlandish and violent behaviour that started the incident.
Third, I accepted the submission that the background to the incident that occurred in court on 1 August 2016 is complicated. This was not the first time that violence has erupted in the dock. In the course of the pre-trial hearing there was a violent incident in the dock that occurred in my absence. From what I have been told by others, that incident involved violence directed towards the Qaumi brothers. After the incident, a razor blade was located in the dock. The circumstances are discussed generally in the judgment known as R v Qaumi & Ors (No 8) [2016] NSWSC 184 at [15]-[21]. An exploration of the background which may be occasioned by introduction of the evidence is likely to be time-consuming and create prejudice to a number of the accused.
Fourth, counsel for Mr Kalal did not submit that the evidence was admissible, per se, on the issue of duress. The evidence counsel sought to lead in cross-examination does not have a capacity to gainsay the evidence adduced in chief (that is, that this was Jamil Qaumi's first time in custody).
Finally, I concluded that counsel should be given the benefit of the doubt. In other words, rather than concluding that this was a deliberate and underhanded attempt by counsel to imply that her client was a person of good character, I proceeded on the basis that she made a genuine forensic mistake in the heat of the moment. What should have been done was to indicate that she had decided not to lead the evidence of the limited prior criminal record but to lead the evidence that it was Jamil Qaumi's first time in custody. She could then have sought an advance ruling under s 192A Evidence Act as to whether that would expose her client to cross-examination on his character.
The seriousness of the decision to raise good character was emphasised in the case of R v Hamilton (aka McBride), unreported, Court of Criminal Appeal (NSW), 6 July 1993. In that case, a conviction was quashed as a result of the negligence of counsel in raising good character without first confirming that there was no evidence to rebut the suggestion. While R vHamilton was a case decided under the common law, practitioners should recall the following passage in the judgment of Hunt CJ at CL:
"The decision whether to raise character is one of the most important which an accused will have to make in the course of a criminal trial. Evidence of good character can, in the appropriate case, be of substantial benefit to the accused. In accordance with s 412 of the Crimes Act 1900, the evidence may demonstrate that it is unlikely that, as a person of good character (or of good disposition), the accused would have done the act charged - or (in relation to a crime of a specific intent) that he or she would have sought to have achieved the result charged in that crime: Regina v Lawrence[1984] 3 NSWLR 674 at 680. As a corollary, the evidence may also support the credibility of the denial by the accused that he or she did the act or did it with the relevant specific intent, and hence the unlikelihood of his or her guilty: Regina v Murphy (1985) 4 NSWLR 42 at 54.
Raising character does, however, involve an enormous risk for an accused. Character is raised in the relevant sense only where the evidence is elicited or led by the accused with the intention of putting his or her character in issue: Rex v Redd [1923] 1 KR 104 at 106-107; Rex v Winfield (1939) 27 CAR 139 at 141; Amoe v DPP (Nauru) (1991) 103 ALR 595 at 602. But, once character has been so raised by the accused, the Crown becomes entitled to elicit or to lead evidence of character (or bad disposition) to rebut the evidence upon which the accused relies: Rex v Woolcott Forbes (1944) 44 SR 333 at 340. The evidence of bad disposition which becomes admissible for that purpose is not necessarily limited to the particular type of disposition raised by the accused; the whole of the character of the accused may be exposed, provided that it tends to disprove his or her assertion of good character: Stirland v DPP [1944] AC 315 at 326-327. Nor is the evidence which becomes admissible to rebut the claim by the accused limited to his or her previous convictions; the Crown may seek to elicit or to lead evidence of specific events which demonstrate a bad disposition, notwithstanding that they have not been the subject of any charge or conviction: Regina v Stalder[1981] 2 NSWLR 9 at 19-20.
…
The admissibility of such evidence of bad character - particularly of material other than convictions - is subject to the discretion of the trial judge to exclude it if, having regard to the issues before the jury and to the risk that the jury may be misled as to what those issues really are, its reception would be unfair: Stirland v DPP (at 324); or where its undoubted prejudice to the accused is undue or disproportionate, having regard to its probative significance upon this issue of good character: Regina v Stalder (at 20). In other words, prejudice is inevitable from the admission of such evidence and the mere existence of that prejudice will not alone justify the discretionary exclusion of the evidence of bad disposition, even where (as was the case in Stalder) it is of convictions for crimes of the same general type as that with which the accused had been charged.
...
All of this makes it obvious that counsel for an accused (and I include here a solicitor for the accused where acting as the advocate) bears a very heavy burden when advising the client in relation to the decision which the client must make as to whether good character should be raised. That advice can only be given properly when it is based upon a full knowledge of what may be elicited or led by the Crown should character be raised by the accused. It is not sufficient for counsel merely to rely upon a belief based only on information provided by the accused. To put it bluntly, a person facing a criminal trial which may have a severe consequence to his or her liberty and/or reputation is not always a reliable source of such information. Such unreliability may result from the client's educational standards, culture, health, embarrassment or lack of comprehension. It may also result from the client's mendacity. Not only is it wise, it is imperative, that the information which the client gives be checked from a source which is reliable before any forensic step is taken to raise character."
Following the High Court's decision in TKWJ v The Queen [2002] HCA 46; 212 CLR 124, the Evidence Act was amended to introduce s 192A which allows for advanced rulings on issues such as those that arise in the present circumstances. Practitioners should be aware of that provision and, when in doubt, seek a ruling in advance.
Even though I formed the view that either ss 110(2) or (3) of the Evidence Act was engaged, I concluded that it would be unfair for counsel's mistake to be sheeted home to the accused. The probative value of the evidence was not great in rebutting the limited evidence that was led. Neither the prior assault conviction nor the incident that occurred in court is capable of rebutting the evidence that this was Jamil Qaumi's first time in custody.However, it did have some probative value in rebutting an implication of good character. Against that, the evidence had some capacity to mislead in that only part of the incident in court would be led: s 135(b) of theEvidence Act. If evidence of the whole of that incident was led, it may have operated unfairly to the other accused: s 135(a). Exploration of the background to the incident may have resulted in an undue waste of time: s 135(c). Those matters substantially outweighed the probative value of the evidence given the limited way in which the issue was raised.I also formed the view that the probative value of the evidence was outweighed by the danger of unfair prejudice: s 137. The unfair prejudice arose from the accused being punished forensically as a result of a mistake made by his barrister in the heat of the moment.
[2]
Endnotes
T 2334-2335. See also the discussion on 25 May 2016 at T 2193.
T 6014.
Urban Dictionary (online)
T 2260-2261.
T 6018.
T 6018.
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Decision last updated: 30 November 2016