At the conclusion of the evidence of a witness known as Witness G [1] , Senior Counsel for Mumtaz Qaumi sought a direction pursuant to s 165 of the Evidence Act 1995 (NSW) that certain evidence may be unreliable. Initially, the direction was sought in relation to the witness who was next to be called, a witness known as Witness M. However, in the course of argument it was conceded that giving the direction before Witness M gave evidence was inappropriate because it was not known with any certainty what evidence the witness would actually give or what evidence would emerge that supported a direction that her evidence fell into a category that may be unreliable. Senior Counsel then sought a s 165 warning in relation to Witness G.
The learned Crown Prosecutor did not oppose the giving of a direction provided that it was balanced by a direction that the evaluation of the evidence must ultimately be made after the jury had heard all of the evidence in the case. Senior Counsel for Farhad Qaumi and counsel for both Jamil Qaumi and Mohammed Zarshoy supported the application. Counsel for Mohammad Kalal opposed the giving of a direction at this stage of the trial. He submitted that all directions, including warnings as to the potential unreliability of certain categories of evidence, should all be given at the end of the trial in the course of the summing up.
Section 165 provides as follows:
"165 Unreliable evidence
(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,
(b) identification evidence,
(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,
(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,
(e) evidence given in a criminal proceeding by a witness who is a prison informer,
(f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant,
(g) in a proceeding against the estate of a deceased person-evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.
(2) If there is a jury and a party so requests, the judge is to:
(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information.
(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A (2) and (3)."
The evidence of Witness G fell into at least three categories of evidence specifically referred to in s 165(1). First, he gave evidence of admissions allegedly made to him by Jamil Qaumi and Mumtaz Qaumi: s 165(1)(a). Secondly, he is a person who might reasonably be supposed to have been a criminal concerned in some of the events giving rise to the proceedings. Third, he is a prison informer: s 165(1)(e).
In the context of the present argument, a number of things may be observed about s 165. First, categories in sub-s (1) are not exhaustive. Secondly, the requirement for a warning is mandatory unless "there are good reasons for not" giving the warning. Third, the warning does not require that any particular form of words be employed. Fourth, the section does not specify when the warning should be given.
Mohammad Kalal relies on the evidence for Witness G in some respects: see R v Qaumi and Ors (No 32) [2016] NSWSC 675. However, Mr Clarke (who appears for Mr Kalal), did not submit that there are good reasons for not giving the warning. Rather, he opposed giving the warning at this stage of the trial. He submitted that all such warnings and legal directions should be given during the summing up. I understand that he is concerned that the warning would attract undue prominence if given at this stage of the trial. I was unable to accept this submission.
While it is the case that most legal directions are given during the summing up, it is common for trial judges to provide legal directions during the course of the evidence or in their opening remarks to the jury. The following are some examples of a general nature and others that have arisen in the present trial.
It is customary, although not universally the case, that the jury is told about the onus and standard of proof at the beginning of the trial before any evidence has been elicited. This occurred in this trial. [2]
Directions to the jury regarding an accused person's right to silence and warnings against misuse of evidence that establishes that an accused person elected not to be interviewed by police or to respond to allegations put to them by investigators are almost always given at the time that the evidence is elicited. That occurred in this trial at the invitation of the learned Crown Prosecutor.
Again, where evidence is adduced of criminal acts that are not charged on the indictment, the best practice in most cases is to provide the jury with some direction as to the basis upon which such evidence is admitted and any limitation upon its use. The jury should be told if such evidence is elicited to put the events charged in their true context and, if that is the basis, be warned against tendency or coincidence reasoning. It may be that the evidence is admitted as tendency evidence or in rebuttal of an assertion of good character and, in each case, it is usual and appropriate that the jury will be given certain directions at the time that the evidence is adduced as well as in the summing up.
In the present case, it has been necessary from time to time to direct the jury as to the basis upon which certain evidence is admitted and against which accused it is admitted. For example, evidence that Mr Kalal and another man rented a motor vehicle on the day of the alleged murder of Mahmoud was admitted against all accused. However, its use in each case was different. In the case of Mr Kalal, the evidence was admissible only in relation to a charge of participating in a criminal group (count 24). This was because there is evidence that he used the car in a drug run that afternoon but there is no evidence, and no suggestion, that he knew it was used later that night in the commission of the murder. The evidence was admitted against the other accused as part of the circumstantial case in relation to the murder. The jury was given direction as to the use to which the evidence could be put in each case and warned in relation to its limited use in Mr Kalal's case: see R v Qaumi & Ors (No 29) [2016] NSWSC 569 at [14].
The jury has also received direction about the fact that the evidence establishes (and it is obvious) that the accused men are in custody. The jury was warned that this was not uncommon in cases of this kind, the difficulties in obtaining bail for serious offences and told that it ought not to create prejudice against the accused. [3] The nature of a "Basha" Inquiry was also explained to the jury. [4]
The foregoing analysis shows that there are many occasions when it is appropriate to direct the jury in the course of the trial about matters that will also form part of the summing up. I formed the view that it was appropriate to provide a s 165 warning in relation to Witness G in the course of the evidence for three main reasons.
First, counsel has indicated that it is expected that the Crown case will not conclude for around another two months. Allowing for some defence case and addresses by six counsel, the jury is unlikely to receive the summing up for around 3 months. The jury is no doubt making tentative assessments of the quality of the evidence and the credibility of the witnesses as the case progresses. Given the effluxion of time between hearing the evidence of the witness and the summing up, it is sensible and appropriate that the jury be warned in advance that his evidence falls into a category (or categories) that the law recognises may be unreliable.
Second, Witness G is the first of around ten or twelve witnesses who might generally be described as informant witnesses. Many of these witnesses will no doubt attract applications for directions under s 165 or other warnings. From the material tendered on the pre-trial hearing, the nature of the attack to be made on their credibility varies from witness to witness while there are some common features. If all of the warnings are given in the course of the summing up, it is likely that the impact of the warnings will be diluted. There is a danger that the impact of the directions will be reduced.
Third, while the Crown relies on a body of evidence that the jury may accept supports the evidence of the informants and implicates the accused in the various offences, the prosecution case appears to be significantly reliant upon this large body of evidence from witnesses who have "rolled over", in most cases in exchange for benefits such as reduced charges, discounts from their sentences and transfer to more comfortable or safer prisons. In those circumstances, it is critical that the jury receive forceful warnings at an early stage as well as during the course of the summing up.
I accepted the Crown's submission that, if a warning was given at this stage, I should also remind the jury that the evidence of the impugned witness had to be evaluated in the light of all of the evidence and that this could not be done until the Crown called all of the evidence upon which it relies. Similarly, in deference to the concerns raised by Mr Kalal it was appropriate to ensure the jury understood that the warning did not mean that the evidence of the witness should be disregarded or that the jury might accept parts of his evidence while rejecting other parts. A direction to that effect was also given in my opening remarks to the jury. [5]
For those reasons I provided the jury with the following warning shortly after Witness G left the witness box and before the next witness was called:
"HIS HONOUR: Thanks, members of the jury. We are presently to hear from [Witness M]. Just a couple of things I wanted to say to you about some of the evidence you heard today, one of which is a very important direction of law that you need to receive and follow carefully. You will hear it again later in the trial but I have decided it is a direction of such significance that you should hear it at this time.
Before I get to that direction, though, you may have noticed that Ms Carroll, when she cross examined, and Mr Driels when he cross examined [Witness G], that each referred to some evidence that that witness had given in November of last year. Ms Carroll referred to it as a pre trial hearing I think and Mr Driels used the expression, I don't know if you picked if up, "Basha inquiry", that is B a s h a. It is named after a case.
It is a procedure when the prosecution and the accused are given the opportunity to hear in advance of the trial, the details of the evidence that witnesses are going to give when that is not clear on the Crown brief, the prosecution brief. So we conducted a procedure like that with a number of the witnesses late last year and a transcript was kept and it allows counsel, if there is inconsistency between what is said, to take the witness back to that to point that out. So that is all the references were.
Coming to the more critical direction, it concerns both [Witness G] evidence generally and also some specific aspects of his evidence. I want to warn you I must warn you that [Witness G] falls into a category of witness whose evidence may be unreliable. There are a number of reasons for this, some of which would be obvious to you. They have been referred to by defence counsel and acknowledged I think by the prosecution who led some of the evidence relevant to this.
The first thing is that Mr [G] is what is known as a prison informant. The experience of the courts over many, many years is that prison informants are witnesses who may very well give unreliable evidence. It is also the case that Mr [G] was criminally concerned in some of the activities that he was giving evidence of. That may give him a motive to minimise his own role and, if you like, maximise the role of others.
Putting aside those labels, labels like prison informant, the fact is that Mr [G] had a significant motive to provide an account which incriminates the accused or some of them.
As a result of the assistance that he offered to give police and prosecution, you've heard that he obtained a substantial reduction in the sentence that would otherwise have been appropriate for a criminal offences that he committed. You have heard that referred to as a discount and you heard that he received a total discount of 50 per cent off the otherwise appropriate sentence. That was for pleading guilty and for giving assistance to the police and prosecution.
The law is that where a person receives a discount like that, the prosecution may appeal against the sentence if the witness does not come up with the goods. In other words, if he turned up here and not given that evidence, it would have been open to the prosecution to appeal against the sentence and have it increased by that amount that he got the discount for.
That means that he has a significant motive to give evidence favourable to the prosecution against some or more of the accused.
You also heard, members of the jury, that he received other advantages. You know that the police have provided him with a letter to assist with his immigration problems. He has been told, and you have that letter, exhibit 24, that he his visa was to be cancelled because of what the Immigration Department says was his bad character. It also seems to be the case that the outcome of his immigration situation will turn, to some degree, on the evidence that he has given here.
You recall Mr Stratton, on behalf of Farhad Qaumi, cross examined him and described it essentially as a death sentence to be sent back to Iran. However you look at it, in those dramatic terms or otherwise, it provides yet another significant motivation for Mr [G] to give evidence favourable to the prosecution.
There was also evidence of him getting transferred to other gaols and you have heard those over a long period of time, conversations between him and his brother and [Witness L], and you might think, listening to what they were saying in those conversations, that the transfer to that gaol was a favourable outcome for him.
There have been other attacks on his credibility. He has a criminal history which is in evidence before you. He has been attacked about his drug use, about his involvement in motorcycle gangs, lies that he allegedly told to Detective Browne about not being involved in the offences, and it has been suggested to him that he encouraged his brother and then [Witness L] to tell lies to the police as well.
It is for you, as the tribunal of fact, to assess his evidence and to consider the attacks that have been made on his credibility. The directions that I am now giving you and that I will repeat in the summing up do not mean that you must disregard his evidence. They do not mean that his evidence is necessarily unreliable in all respects, or in any particular respect. It is a matter for you to consider and scrutinise his evidence closely. But in doing that, I am directing you as a matter of law that you must take into account this very strong warning I am giving you about the possibility of his evidence being unreliable.
There is also a specific aspect of his evidence that falls into a category of evidence that may be unreliable. You heard that he gave evidence of alleged admissions made to him by Mumtaz Qaumi and Jamil Qaumi. Again, the history of the law is that evidence of admissions is evidence of a kind that may be unreliable. It is not recorded. You're taking his say so of what was said. And evidence like that is very easy to make up and very difficult to refute. So the law requires that any time evidence of that nature is given to a jury, the jury receives a direction that it is evidence that may be unreliable.
As I have said, none of that means that his evidence is unreliable. You must assess it and you must assess it both on its own terms and also having considered all of the other evidence in the case. At the moment you have heard one of these so called informant or rollover witnesses. You have heard a number of other pieces of evidence and at the end of the trial you will have to assess the evidence of all of the witnesses, taking into account other evidence in the case that you may accept and other evidence that reject. But in making that assessment, you must always bear in mind the warnings that I have just given you.
I think for the time being that is all I will say about the subject. I will be repeating it and adding to it later in the trial."
[2]
Endnotes
At an early stage of the trial, the Police Commissioner made an application that the names and identities of 13 witnesses be suppressed R v Qaumi & Ors (No 10) [2015] NSWSC 211 and R v Qaumi & Ors (No 13) [2016] NSWSC 337. While the names of the witnesses are being used in the Court, they are to be referred to by letters A-M in any publication following the trial. This judgment, along with a number of other judgments, will not be published until the conclusion of these proceedings: R v Qaumi & Ors (No 15) [2016] NSWSC 318 confirmed in Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97. However, even at the conclusions of the proceedings the witnesses should be protected by the use of these pseudonym letters.
Transcript (T) 53.
T 2334-5.
T 2200 (and see below at [18]).
T p 49.
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Decision last updated: 23 November 2016