The Crown seeks to lead evidence of a number of recorded telephone calls that took place between 15 and 17 July 2013 between a number of men including:
1. The accused (Farhad Qaumi).
2. A witness and member of the Brothers for Life at Blacktown (Witness L). [1]
3. The alleged leader of the Brothers for Life Bankstown (Mohammed Hamzy) who has already given evidence and identified his voice and that of Farhad Qaumi on one of the calls.
4. Another member of the Brothers for Life Bankstown (Mahmoud Sanoussi).
The Crown also seeks to lead evidence from Witness L as to the meaning and content of the calls.
The accused Farhad Qaumi objects to the tender of the evidence on the grounds that it is not relevant and, if it is relevant, that it should be excluded pursuant to ss 135 or 137 of the Evidence Act 1995 (NSW). In relation to the calls that do not involve his client, Senior Counsel for Farhad Qaumi also submits that the calls contain inadmissible hearsay.
On Monday 23 May 2016, during the evidence of Mohammed Hamzy, one of the telephone intercepts, along with a transcript, was tendered without objection and became Exhibit WWWW. That call occurred on 16 July 2013 at 10.05pm. Mr Hamzy identified the voices on the call as those of himself and Farhad Qaumi. However, when the Crown Prosecutor sought to play a further four calls between the same two men, Mr Stratton SC indicated an objection to three of the calls. At that stage, the further calls were not accompanied by any transcript, an omission of some significance because a small part of the conversations was conducted in a language other than English (that is, Arabic). I listened to the calls in the absence of the jury. It was a little difficult to follow because of the lack of the transcript although the general subject matter of the calls and the tone of the participants came through.
Putting aside the more general objection, Mr Stratton indicated that there were at least two references in the calls, one in Arabic and one in English, where reference was made to the accused having recently been released from gaol (السجن pronounced habass or hubis or similar). One reference, in English, was to "Supermax". It is common ground that the reason that the accused was in gaol at the relevant time was because he was refused bail for a double murder charge of which he was ultimately acquitted. I have ruled in two different contexts that evidence of these previous allegations is not admissible: R v Qaumi & Ors (No 6) [2016] NSWSC 115 and R v Qaumi & Ors (No 24) [2016] NSWSC 505. Once the Crown Prosecutor realised that there was reference to these and other matters that could potentially derail the trial, it was acknowledged that it was necessary to obtain transcripts - including translations - before any decision could be made as to the admissibility of the material. The argument was adjourned and resumed after lunch on Friday 27 May 2016 once the jury was released for the weekend.
Senior Counsel for Farhad Qaumi indicates that there is no issue in relation to the identification of the voices in the calls between his client and Mohammed Hamzy.
The accused is charged with a number of offences and is on trial with a number of co-accused. The details of the allegations, and an overview of the evidence, have been set out in earlier judgments. For present purposes it is sufficient to recall that the case involves a number of shooting incidents in which members of a criminal gang (the Brothers for Life Blacktown) attempted to kill a number of members of a rival gang (the Brothers for Life at Bankstown). The first three charges arise out of a shooting at the home of Mohammad Hamzy. Mohammad Hamzy was the target of the shooting. In the course of that enterprise, Mr Hamzy's cousin (Mahmoud Hamzy was killed, having been shot in the head at close range) and another cousin (Omar Ajaj) received gunshot wounds. Mr Hamzy escaped uninjured.
The defence case is (in part) that Mohammad Hamzy had taken out a contract on Farhad Qaumi's life and that the events giving rise to the current charges arose out of a belief that it was necessary to act in self-defence. I say "in part" because it is also clear that large parts of the evidence adduced by the prosecution are hotly in dispute. However, in the context of the present evidentiary skirmish it is suffice to say that the accused opened the case by raising the issue of self-defence. In support of that issue, evidence has been adduced to establish that Mohammad Hamzy was a dangerous man who presently stands charged with the murder of another member of his criminal gang.
On 23 May 2015, having listened to the tapes without a transcript, I indicated a provisional view that the tone and content of the conversations between the two antagonists appeared to be relevant to the nature of the relationship between the parties and was capable of supporting the Crown's attempt to rebut self-defence. When the argument resumed on 27 May 2016, Senior Counsel did not attempt to dissuade me from that provisional view, stating:
"Your Honour, in relation to the telephone calls involving the accused Farhad Qaumi, your Honour expressed, if I could put it this way, a preliminary view that those were relevant to the relationship between the parties. Your Honour will recall the matters which were of most concern to me were the references to gaol and the Supermax. The Crown has agreed to delete those.
In view of that concession, the only matters that concern me are the references in two of the calls to a present." [2]
On the voir dire, the Crown tendered the recordings that were played on 23 May along with the transcripts of those calls (Exhibit VD UU). The transcripts included translations and were redacted to remove the reference to the accused being in gaol or Supermax. The Crown also tendered a bundle of documents (itemised in an index from 1-12) including a statement of Detective Inspector Browne, a statement of Witness L, transcripts of telephone intercepts between Witness L and Mahmoud Sanoussi, transcripts of telephone intercepts between Mr Hamzy and Mr Sanoussi, transcripts of telephone intercepts between Mr Sanoussi and an unknown male and a transcript of a telephone intercept between Mr Hamzy and a person called "Mick" (Exhibit VD TT).
The evidence amounts to this. There was a monetary debt between two third parties neither of whom have anything to do with the present proceedings. Witness L was engaged to enforce that debt. In doing so, he attempted to make contact with the person who owed the money through Mr Sanoussi. Mr Sanoussi was reticent to assist, avoided Witness L's calls and explained to Witness L that the true debtor was the person's uncle. Sanoussi was an associate of Mohammed Hamzy. In attempting to exert pressure on Sanoussi, Witness L asked Farhad Qaumi to make contact with Mohammed Hamzy. It is in that context that the calls between Farhad Qaumi and Mr Hamzy occurred. After Farhad Qaumi's intervention, Mr Hamzy then spoke with Sanoussi. Sanoussi spoke with others and Mr Hamzy spoke to the person Mick. All of this occurred in mid-July 2013, around 3-4 months before the shooting at Mr Hamzy's home.
Mohammed Hamzy has given evidence. Witness L is available and expected to give evidence. Mahmoud Sanoussi is not to be called to give evidence.
It is unnecessary to recount the details of all of the calls. I have not changed my provisional view that the tone and content of the calls between Mr Hamzy and Farhad Qaumi are relevant to an assessment of the relationship between those men and to the question of whether Farhad Qaumi believed that it was necessary to take the drastic action alleged in order to defend himself. One issue remained and that concerned the reference to Mr Hamzy having a "present" for Farhad Qaumi. Because other evidence in the case suggests that Mr Hamzy was to provide Farhad Qaumi with a gun, Mr Stratton submits that this evidence could be misused by the jury. He argued that the jury might jump to the conclusion that the reference to the present was a reference to the gun. This would not be a rational use of the evidence in view of the number of other possibility that exist. The jury could also speculate that the word present was code for drugs or some other contraband. Asked about the possible misuse of the evidence the learned Crown Prosecutor said:
"If that is the only objection then we don't have an issue that we could take some words out. Certainly it doesn't go as high as saying the Crown could go to the jury and say that is a gun which Witness M spoke about. As long as the reference to money stays in, 'he present' could come out."
I confirm that the calls between those two men are admissible provided that that the prejudicial and misleading material has been removed in accordance with the agreed position of the parties in the course of the argument.
I move to consider the other telephone intercepts. With one exception - I do not accept that the remaining calls are relevant to the issues in the trial. Even if they have some relevance, the extent to which the calls might rationally affect a consideration of the facts in issue (that is, the probative value) is so slight that it is substantially outweighed by the danger that it would result in an undue waste of time: s 135(c). I do not accept that the involvement of some members of the two chapters of the BFL in the debt collection activities in July 2013 demonstrates tension between the groups that might rationally affect an assessment of what happened in late October and early November of that year. Insofar as such tension is demonstrated by the calls, the tension is established in the calls between Farhad Qaumi and Mr Hamzy. It is true that Mr Hamzy complains about Farhad Qaumi in his conversations with Mr Sanoussi, but this does not provide evidence that could rationally affect an assessment of Farhad Qaumi's state of mind in late October 2013.
The various colourful representations made in the remaining calls are, as was submitted by Senior Counsel, largely of a hearsay nature. There is one relevant exception to this proposition and it is the same exception to which I have already referred.
Accordingly, I find that the evidence of the calls between Mohammed Hamzy and Mahmoud Sanoussi and the calls between those two men and others is not admissible.
The exception to which I referred in paragraphs [15] and [16] concerns the first call between Witness L and Mr Sanoussi. This was a call at 22:02:50 on 15 July 2013 (Product Number 23816). In that call, Witness L made a number of relevant representations. One is that he is from the BFL Southwest which is described as "Fahad's crew". He also says that he is going to "speak to F" and that "if he goes to me 'Go on with this bloke', I've got to go on with this bloke." This last sentiment is repeated twice later in the conversation.
This evidence is capable of affecting an assessment of an important aspect of the prosecution case, namely that the Blacktown (Southwest) Chapter of the Brothers for Life was controlled by Farhad Qaumi and that the members of the group followed his directions. Insofar as these representations are properly categorised as hearsay, they are first hand hearsay relating to a representations about Witness M's intentions or state of mind. It is subject to the exception in s 66A of the Evidence Act. This call is admissible.
For those reasons, I make the following evidentiary rulings:
1. Evidence of the calls between Farhad Qaumi and Mohammad Hamzy is admissible.
2. Evidence of the call between Witness L and Mahmoud Sanoussi at 22:02:50 on 15 July 2013 (Product Number 23816) is admissible.
3. Subject to any further argument, oral evidence of Witness L to put those calls in context is admissible.
4. All of the remaining calls (Product Number 23829, 18767, 19095, 19132, 24468, 19330, 24474, 24481 and 19413) are inadmissible.
Needless to say, the Crown may be entitled to renew its attempt to adduce this evidence (for example in re-examination of Witness L) depending on the cross-examination of Witness L.
[2]
Endnotes
The names and identities of a number of witnesses have been suppressed: see R v Qaumi & Ors (No 10) [2015] NSWSC 211 and R v Qaumi & Ors (No 13) [2016] NSWSC 337.
T 2341.
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Decision last updated: 12 December 2016