At the conclusion of the cross examination of a witness to whom I will refer as Witness G, I granted leave to Counsel for Jamil Qaumi to ask a limited number of further questions in cross-examination after the conclusion of cross-examination by counsel for the accused Mohammed Kalal. These are my reasons for granting that leave.
Witness G gave evidence relevant to the formation of the Brothers for Life organisation which is said by the Crown to be a criminal group for the purpose of s 93T of the Crimes Act 1900 (NSW). It was in the context of a "turf war" between two chapters of that group that a number of shooting offences, including an offence of murder and a number of offences of attempting to murder, were allegedly committed. There are five accused currently on trial.
Jamil Qaumi is alleged to have been one of the shooters in the murder offence and an active participant in a number of the other offences. Along with his two brothers, he is alleged to have directed the activities of the criminal group. The manner in which the case has preceded to this point supports the conclusion that his interests are almost entirely aligned with the interests of his two older brothers who are charged with similar offences. Each of the older brothers is represented by Senior Counsel of significant skill and experience. The trial of the five accused is proceeding together: R v Qaumi and Ors (No 3) (Severance and separate trial) [2016] NSWSC 15.
Mohammed Kalal is not alleged to have been involved in the first incident, which gives rise to the murder charge, a separate count of inflicting grievous bodily harm with intent and conspiracy to murder. However, he is alleged to have played an active role - namely, being one of the shooters - in two of the subsequent shooting offences which give rise to counts 7, 8 and 9 ("the Zakaria shooting") and counts 10-16 ("the Chokolatta Café shooting").
There is a significant factual dispute between Jamil Qaumi and Mohammed Kalal. This dispute has been apparent from an early stage of the trial. Counsel for Mohammed Kalal has indicated that he intends to rely, at least to some extent, on a defence of duress. His opening was appropriately circumspect but he has made it clear in argument that at least part of his case is that he only involved himself in the shootings because he was under duress from the Qaumi brothers. The factual circumstances said to give rise to his defence includes a threat or threats allegedly made by Jamil Qaumi.
In her opening statement to the jury, counsel for Jamil Qaumi made it clear that her client denied issuing such a threat or threats.
The order of the indictment is such that, unless other agreement is reached, the order of cross-examination commences with the three Qaumi brothers, followed by counsel for the fifth co-accused (Mohammed Zarshoy) and then, finally, by counsel for Mohammed Kalal.
Given the nature of Mr Kalal's defence, this order of cross-examination creates certain difficulties for counsel representing the three Qaumi brothers. Mohammad Zarshoy's position is somewhat different in that, in so far as I am able to tell at this stage of the trial, his case is that he was not involved in the incident giving rise to the murder and associated offences. Apart from that incident and an offence of participating in the criminal group (count 24), he is not alleged to have been involved in the subsequent four shootings.
In the case of the witness known as Witness G, a substantial, sustained and lengthy attack on his credibility took place in the course of the cross-examination by Mr Stratton SC (on behalf of Farhad Qaumi), Mr Young SC (on behalf of Mumtaz Qaumi) and, finally, Ms Carroll on behalf of Jamil Qaumi. The cross examination on behalf of the three Qaumi brothers took place over a number of days. Without pre-empting the conclusions that the jury may reach in relation to the credibility of the witness, or expressing any particular view of the effectiveness of the cross-examination, it was objectively clear that there was significant force and substance in the attack made upon Witness G's credibility. After that cross-examination, Mr Driels (on behalf of Mohammad Zarshoy) undertook a brief but effective cross-examination calculated to resurrect the credibility of Witness G in respect of a particular aspect of his evidence.
It then fell to Mr Clarke to cross-examine the witness on behalf of Mr Kalal. No doubt in pursuit of evidence supporting the proposition that his client acted under duress, Mr Clarke elicited a deal of information concerning the leadership role of the Qaumi brothers and the subservient role of his client.
Part of the cross-examination on behalf of Jamil Qaumi included adducing evidence that at some stage after the men had been charged and refused bail, Jamil Qaumi and Mohammad Kalal shared a cell. The purpose of this cross-examination appeared to be an attempt to undermine the suggestion that Mohammed Kalal was fearful of Jamil Qaumi. In response to that cross-examination, and also to further the evidentiary basis of the defence of duress and the argument that Mohammed Kalal was threatened by Jamil Qaumi and fearful of the Qaumi brothers, Mr Clarke elicited evidence from the witness that Mohammed Kalal had discussed with him the possibility of moving cells. That is, he sought to establish that Mohammed Kalal attempted to be moved out of the cell that he was sharing with Jamil Qaumi. The relevant part of the cross examination was as follows:
"Q. You were asked some questions by Ms Carroll about a time when they were all in the same prison at Long Bay and you were asked whether you knew that Jamil and Mr Kalal were sharing a cell together at that stage?
A. (Witness nods.)
Q. Can I just ask you to just think for a moment. It's right to say that during that period when you were there as well obviously, Jamil was in fact sharing a cell with Mohammed Kalal, wasn't he?
A. They could have because everyone change, you know.
Q. Think about it for me. Just help me out if you can, and the jury. There was a time when you knew that Jamil and Mr Kalal were sharing a cell. Is that right or not?
A. I think you're right, yeah. I'm not sure hundred per cent, but I think.
Q. It is right to say, isn't it, that there was talk of you applying to in fact share a cell with Mohammed Kalal, wasn't there? There was discussion with Mohammed about actually sharing with him?
A. Maybe, cause it's been long time. Maybe. Cause we used to switch around you know.
Q. I am sorry, I didn't catch that last word. What was it?
A. I said we used to switch around cells, sir, like changes.
Q. Switch around?
A. Maybe you're right, sir, but I don't think I ever been celly with him.
Q. I am suggesting to you that at the time you were there and during the time he was sharing with Jamil, there was some talk about you in fact making an application to share with Mohammed Kalal?
A. That could be right.
Q. Didn't you tell Mohammed Kalal about a conversation you had with Jamil and it went something like this: Jamil found out you were going to make an application to share with him that's Kalal and you were told by Jamil not to do that, not to do that, because he that's Jamil wanted to stay in the same cell as Kalal because he wanted to keep an eye on him; that's right, isn't it?
A. That's right and he was scared to go celly with anyone else. Every time they try and put him
Q. But he told you, that is Jamil, that he wanted to keep an eye on Kalal?
A. Yes, he did.
Q. And he told you the reason why he wanted to keep an eye on Kalal is because he was worried he was going to roll, wasn't he? That's what Jamil Qaumi said to you?
A. He was worried about all of them, yes, all the other ones.
Q. He was clearly saying to you he was worried about Kalal, wasn't he, at that stage?
A. Yes.
Q. As it turns out, you didn't share and it turns out you were moved on to a different gaol in due course?
A. That's true." [1]
At the conclusion of Mr Clarke's cross-examination, counsel for Jamil Qaumi sought leave to engage in further cross-examination. Counsel for Mohammed Kalal objected to this course. He essentially put that the "forensic advantage" that he enjoys by being named last on the indictment should not be undermined by allowing other counsel - whose interests are anathema to his - to have a second attempt at cross-examination of the witnesses.
Counsel for Jamil Qaumi argued that it was unfair that a conversation of which there had previously been no evidence (or notice), should be allowed to be elicited after her cross-examination in circumstances in which she had no opportunity to put to the witness that the conversation did not occur.
Initially, it seemed that Ms Carroll sought to engage in a further sustained attack on the witness's credibility with specific reference to the evidence elicited by Mr Clarke. However, in the course of argument, it was made plain that all that was proposed was to put to the witness that the conversations to which he had deposed in cross-examination by Mr Clarke did not occur and that there was no reference to such conversations in any of his interviews or statements to the police.
Ultimately, I was persuaded that it was appropriate to grant leave to Jamil Qaumi to cross-examine the witness further but only to that limited extent. While it is true that the order of the indictment provides Mohammad Kalal with some forensic advantage that circumstance is purely by chance and arises because of the manner in which the indictment was drafted which, not surprisingly, follows the chronology of events.
The fact that Mr Kalal is conducting a defence of duress, and has the opportunity for the last cross-examination of witnesses, does give rise to some potential unfairness to the other accused, in particular the three Qaumi brothers. Of course, they are now aware of the defence that Mr Kalal is conducting and must fashion their cross-examination in such a way as to anticipate the kind of examination that may follow on Mr Kalal's behalf. Further, by the time Mr Kalal gets the opportunity to cross-examine, the witnesses upon whom he places some reliance in establishing the violence, threats and rigid structure of the Brothers for Life, have been subject to sustained attack by three (and in some cases four, depending on whether the evidence touches Mr Zarshoy) skilful and committed interrogators. For the most part, allowing them a further "crack" at the witness after Mr Clarke sits down would be undesirable.
However, the examination in relation to the conversation was something that took Counsel for Jamil Qaumi by surprise. Provided she was not given another opportunity to cross examine at large or at length, I could see no unfairness to Mr Kalal in allowing her to do what was essentially that which is required by the rule in Browne v Dunn (1893) 6 R 67. That is, I could see no prejudice to Mr Kalal in allowing Jamil Qaumi to put to the witness that the conversations to which he had just deposed (or agreed may have happened) did not occur. Similarly, I could see no unfairness to Mr Kalal to allow Ms Carroll to establish that the conversation had not been mentioned in any of the previous statements or interviews made to the police.
No doubt circumstances such as this will arise again (and indeed there was one particular matter in which Senior Counsel for Farhad Qaumi was permitted, without objection, to examine after counsel for Mr Kalal). There may be occasions where it will be appropriate in the interests of providing all of the accused with a fair trial to grant leave for further cross-examination to occur. As with the present case, the grant of leave will generally be limited to allow counsel to comply with their obligations to put to the witness their case on specific topics. However, it cannot be anticipated in advance precisely what applications will be made, let alone what the appropriate resolution of those applications may be.
For those reasons, I granted leave to counsel from Jamil Qaumi to ask a limited number of questions in cross examination. The extent of the further examination was as follows:
"Q. Sir, when Mr Clarke asked you a question, you agreed with the proposition that Jamil Qaumi had said to you that he wanted to keep an eye on Kalal, is that right?
A. Yes, Miss.
Q. But in your interview with police in your eight statements that you have made to police, you have never raised that matter, have you, ever?
A. No.
Q. Because it is not true?
A. No, because they didn't ask me." [2]
[2]
Endnotes
Transcript ("T") 2167.
T 2179
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Decision last updated: 30 November 2016