The accused Farhad Qaumi seeks a discharge of the jury on the basis of certain evidence given by a witness known as Witness I. The evidence discloses that at some time shortly before the middle of 2013 Farhad Qaumi was released from gaol. That fact has not been disclosed to the jury and the parties have agreed that it ought not to be disclosed in the evidence. I am told that he was in custody, with bail refused, pending resolution of unrelated charges of murder. He was acquitted in relation to two of those charges and a third charge was discontinued by the prosecution. I have ruled that evidence of Farhad Qaumi boasting about "beating" the earlier murder charges is inadmissible: see R v Qaumi & Ors (No 6) [2016] NSWSC 115 and R v Qaumi & Ors (No 24) [2016] NSWSC 24.
The evidence emerged in the following exchange:
"Q. Do you recall what was discussed at this first meeting?
A. Yeah.
Q. Can you tell us what was said?
A. Basically Farhad came out of gaol and he said he's taking over the BFL, he's making it to two parts and he's gonna be the leader. And if you're gonna be in the group, he's gonna be leading us.
Q. At that time was there discussed a structure of the group or hierarchy of the group?
A. He's gonna be the leader and Jamshid's gonna be second in charge and his brother Mumtaz gonna be third in charge.
Q. Was Mumtaz there at the time?
A. No.
Q. Was there any other positions in the group?
A. Not that at time, no.
Q. Was it discussed what the group would do?
A. Yeah.
Q. Did that include involvement in drugs, drug dealing?
A. Yes.
Q. Was there a particular area that the group would operate in?
A. Yes, we're gonna take from Granville area all the way to Penrith. Auburn, Granville area.
Q. Did you agree to be part of this group at that time, at this first meeting?
A. Nah, not at the first meeting.
Q. Was there a meeting after that?
A. Yes."
I have italicised and emboldened the passage that leads to the present application.
No objection was taken to the evidence and the matter was not raised until the next adjournment. This was entirely appropriate and the correct forensic approach to an unexpected situation. The evidence is clearly not admissible and the Crown did not seek to adduce it. The impugned part of the answer was not responsive to the question. Nothing would have been gained by raising the issue at the time. Objecting, or raising a "matter of law to be determined in the absence of the jury", had the potential to draw attention to evidence which otherwise may not have been noticed. I was conscious of the issue as soon as the evidence was given and surveyed counsel and the jury to see if there was any reaction. I was unable to observe any reaction. Senior Counsel for Farhad Qaumi presented a particularly impressive and unaffected poker face - he did not react at all.
None of the other accused seek to have the jury discharged as a result of the incident. The effect of an order discharging the jury in respect of Farhad Qaumi would be that he would stand trial separately at a later time before a different jury. The present trial would continue with the other four accused.
The Crown opposes the application and provided helpful written submissions and a bundle of relevant authorities. Mr Stratton SC responded orally to those submissions on Friday 17 June 2016. I considered the submissions of both parties and determined not to discharge the jury. I indicated that I would provide reasons later. These are those reasons.
The decision whether to discharge the jury is a discretionary one. The exercise of the discretion is guided by a number of relevant considerations. In Khazaal v The Queen [2011] NSWCCA 129 Hall J at [265] ff set out a number of principles that apply when "an inadvertent and potentially prejudicial event occurs during a trial". In Miller v R [2015] NSWCCA 206 the Court of Criminal Appeal at [126] summarised the principles emerging from his Honour's review and from the cases of Crofts v The Queen [1996] HCA 22; 186 CLR 427 and Maric v The Queen (1978) 52 ALJR 631:
1) In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440.
2) In deciding an application to discharge the jury, key considerations include:
a) the fairness of the trial: Crofts at 440;
b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to "have been left vividly etched on the mind of the jury": Crofts at 441;
c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440;
d) the stage at which the mishap occurs: Crofts at 440; Maric at 635;
e) the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635;
f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; Maric at 635.
3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635.
4) The test to be applied by appellate courts reviewing the discretion to discharge has been stated in a variety of ways. However, in Maric, at 635, it was noted that "[a]t basis, the question is whether [the court] can be satisfied that the irregularity has not affected the verdict", and in Crofts, at 441, the question was put similarly as whether, in the circumstances, the appellate court can "say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable".
5)Significant leeway must be allowed to the trial judge to evaluate these and other considerations, bearing in mind:
"… that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript": Crofts at 440-441.
6) Nevertheless, the duty of an appellate court considering a challenge to the exercise of discretion to refuse a discharge "is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind": Crofts at 441, but rather must apply the broader test stated at (4) above.
As was observed in argument, the deference with which the appeal courts treat discretionary judgments of trial judges in determining whether or not to discharge a jury makes it particular important that trial judges strike the appropriate balance in deciding whether to discharge a jury in circumstances such as those that arise in the present case. In particular it is critical that the trial Judge guards against unfairness to the accused. In a case as serious as the present, matters of expedience and expense must not take precedence over the requirement that the accused has a fair trial. I have given that matter priority in considering the various factors that inform the proper exercise of the discretion in the present case. What follows does not purport to be an exhaustive exposition of the factors guiding the decision to which I came.
The first factor is that the evidence is not relevant and has a capacity to cause prejudice to Farhad Qaumi. The prejudice lies not only in the prejudice inherent in the jury knowing that the accused had been in custody but also in the possibility that the jury may speculate as to why he was in custody and the fact that there is little that Farhad Qaumi can do to neutralise the evidence. Given the reason that he was in custody, it would be forensically challenging to elicit evidence that might not make the matter worse. However, it may be possible to establish that he was in custody in relation to a matter of which he was acquitted without adducing evidence of the nature of the charge. Further, it would be possible to direct the jury along those lines. This is one of the solutions to which the Crown referred in contending that discharge of the jury was neither necessary nor desirable in the circumstances. One of the forensic problems with this solution is that the evidence may well have had no effect on the jury at all and any cross-examination or direction may only serve to highlight the evidence. It is difficult to envisage a direction that would not merely highlight evidence that may otherwise go unnoticed or be considered to be irrelevant by any juror who noticed it. However, a general direction later in the trial to disregard matters of prejudice such as the fact that some of the accused were in custody at various times does have the capacity to cure any prejudice.
Another important consideration is the length of the trial. I do not consider that matters of case management or expense play any significant role, but the amount of evidentiary material and the length of the trial mean that this moment is not likely to loom large in the jury's consideration of the case. The evidence was given towards the end of the eleventh week of the trial. Counsel estimate that there is a further six to eight weeks of evidence in the Crown case. The evidence encompasses a number of shooting incidents and allegations of drug dealing. Witness I is the fourth of around ten to twelve informant witnesses to give evidence in the trial. It is difficult to sustain the proposition that any member of the jury, let alone the collective, would focus on this one part of one answer given around half way through the presentation of the prosecution case.
Another matter to be taken into account is that this is not a case where the accused are running a positive case of good character or even challenging the proposition that they were part of an organisation that was involved in criminal activity. None of the accused have challenged that they were associates of the informant witnesses and each of the informant witnesses has been portrayed (by the accused) as a violent, manipulative and disreputable criminal. As the Crown pointed out, a particularly memorable part of the cross-examination of Witness M was that her ambition ("career goal") was to be a "gangsters moll" and that this explained her attachment to Farhad Qaumi. [1] The inevitable inference was that Witness M at least saw Farhad Qaumi as some kind of gangster figure. It was conceded in argument that there will be no challenge to the Crown case that the Blacktown Brothers for Life was involved in drug dealing. [2]
Senior Counsel submitted that while these things were not disputed, what was seriously in dispute was the fact that Farhad Qaumi ordered shootings. The existence of other evidence suggesting or establishing involvement in criminal activity on the part of the accused served to heighten, rather than to diminish, the significance of the evidence that the accused "came out of gaol". [3] It was submitted that the jury would, or might, speculate as to why the accused was in gaol. It was suggested that the testimony was "that the accused had served a prior gaol term" and that the jury was "entitled to assume that he had been convicted". [4]
Reliance was placed on observations of the High Court in Glennon v The Queen [1992] HCA 16; 173 CLR 592. Reference was made to paragraph [24] of the joint judgment of Mason CJ and Toohey J where their Honours referred to the admission of evidence coming before a jury "of prior convictions for a similar offence" and the reception of such evidence being "calculated to set the prospect of a fair trial at risk". [5] The evidence in the present case establishes neither the fact of a prior conviction nor that the accused was in custody for similar offences.
The Crown submits that two options are available to cure any prejudice. His preferred course is to confront the matter directly by instructing the jury that the evidence was irrelevant, that the charges in relation to which Mr Qaumi was in custody were withdrawn, that there was no criminal conduct on the part of the accused and that the jury should disregard the evidence. He referred to the case of R v Potier [2015] NSWCCA 130 where far more prejudicial evidence emerged and the refusal to discharge the jury was held not to have led to a miscarriage. Alternatively, the Crown submitted that the matter could be left without comment at this stage but covered by more general directions later in the trial. Those directions could encompass both identification of the evidence that is in fact tendered in proof of each charge and directions that the jury should disregard, and not be prejudiced by, evidence that the accused men have been in custody from time to time. The Crown took me to GAR v R (No 2) [2010] NSWCCA 164 where a similar approach was upheld on appeal.
Mr Stratton's principal submission is that the prejudice cannot be cured by direction. However, in the event that the application for discharge of the jury is refused, he submitted that direction at this stage is more likely to aggravate the situation by highlighting the evidence. In making that submission Senior Counsel did not concede that the jury did not notice the evidence.
I concluded that the inadvertent adducing of the evidence is most unlikely to cause the trial to miscarry or to create unfairness to Farhad Qaumi. There was no observable reaction by the jury when the evidence came out. However, I accept that I must proceed on the assumption that at least some members of the jury heard the evidence. Even so, in the context of the issues in the trial, the amount of evidence that the jury has and will receive both before and after the incident along with the uncontested evidence of the group's involvement in criminal activity (drug dealing), the answer will not loom large (if it looms at all) in the jury's mind when it comes to consider its verdicts. It will certainly not be "left vividly etched on the mind of the jury": cf Crofts at 441.
Firm directions will be provided later in the trial ensuring that the jury puts aside emotional and prejudiced reactions to evidence of the accused's involvement in criminal activity and explaining the way in which such evidence can properly be used. I have no doubt that those directions, along with the addresses of counsel in which the evidence relevant to each count will be identified, will serve to alleviate any prejudice that may have been occasioned. I am not sure that there was any such prejudice but have proceeded on the assumption that there is at least a risk of prejudice.
In a case of shorter duration where an accused was being presented either as a person of good character with no previous convictions, or where there was no evidence of the accused involvement in other criminal activity, the safest course would probably be to assume that the jury might be prejudiced and to start over. However, this case is very different. In the context of the evidence and the issues being litigated the occurrence is not a matter of great importance.
In deference to the approach taken by Senior Counsel for Farhad Qaumi, I do not propose to address the issue at this stage of the trial. If his position changes, I will certainly provide directions along the lines of those foreshadowed by the Crown and discussed in paragraph [14] above or sensible directions suggested by Senior Counsel for Farhad Qaumi.
If the jury asks for a copy of the transcript, I propose to redact the offending words and direct the jury that irrelevant material has been taken out of the transcript. The power to provide the jury with a transcript in s 55C is a power to provide "all or any part of the transcript". This encompasses the possibility that it is open to a trial judge not to provide part of the transcript if it "appropriate and practicable". If the jury was to raise the omission of that part of the evidence, I am confident that further direction will cure the danger that the inadmissible evidence will create unfairness.
Those are my reasons for refusing the application to discharge the jury.
[2]
Endnotes
T 2307.
T 3312.
T 3309.
T 3308-3309.
T 3308.
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Decision last updated: 12 December 2016