R v Qaumi & Ors (No 49)

Objection is taken to the tender of an audio recording and associated transcript of a telephone intercept between the accused Farhad Qaumi and another man (Pasquale Barbaro). The prosecution alleges that the recording contains an admission by the accused. The accused says that there is no such admission. These opposing submissions arise because of a difference of opinion as to what the parties say that they can hear in the recording. I accept that counsel on each side genuinely believe they hear what they are submitting that they hear. This is not a case where the quality of the recording is poor. The recording is of good quality and the words used by the parties to the conversation are, for the most part, completely clear. However, on two or three critical occasions the exact words used by the accused are open to legitimate debate.

I was invited to listen to the recording without the aid of a transcript. I did this twice in the courtroom, once with the aid of headphones which increase or enhance the volume (but not, I think, the quality) of the recording. I then listened to the recording three more times in court, this time with the aid of a transcript which contained the version contended for by both parties. I have since listened to the recording on multiple occasions in chambers using headphones. This was done with the consent of the parties after I had heard their submissions and reserved on the question of admissibility.

The counts to which the alleged admissions relate are counts 4, 5 and 6. The offences charged by those counts arise out of the shooting of a man called Michael Odisho. There has been a good deal of evidence about Mr Odisho although he has refused to participate in the proceedings. Indeed, he threatened to do what he could to cause the proceedings to abort if he was forced to give evidence. The Crown declined to call him. The parties are in the process of reaching agreement as to how any relevant statements made by him can be placed before the jury. In any event, there is clear and seemingly uncontested evidence that he was the target of a shooting that occurred at his home in Winston Hills on 3 November 2013. His mother gave evidence of that event as did the people who admit to carrying out the shooting. It seems not to be in dispute that he was a member (or perhaps an enforcer) in a group known as the Bankstown Brothers for Life. That group was the target of five shooting incidents with which the current proceedings are concerned. The people who committed the shootings were members of a rival group, the Blacktown Brothers for Life. Farhad Qaumi is alleged to be the leader of that group.

It is the Crown case that the accused solicited the murder of Mr Odisho (count 4) and was party to a joint criminal enterprise to shoot at him with intent to murder him (count 5). Count 6, alleging a lesser specific intention, is an alternative to count 5. The only direct evidence against Farhad Qaumi comes from two informant witnesses (known as Witness L and Witness M) who allege that Farhad Qaumi nominated Mr Odisho in a list of people that he asked or directed to be targeted after the initial shooting murder of Mahmoud Hamzy on 29 October 2013. The evidence of Witnesses L and M was subject to a substantial credibility attack and the jury was given a strong warning that their evidence may be unreliable for a variety of reasons. Similar directions will be given in the summing up.

The conversation between the accused and Mr Barbaro took place on 30 December 2013. I gather there is no dispute as to the identity of the participants. The conversation commences with Mr Barbaro attempting to ascertain the identity of a person who had asked to meet him in Auburn. On the prosecution version, Mr Qaumi said words to the effect of “Is that the one [I] got popped?” [1] and “That the one I sho…” On the defence version, Mr Qaumi said “that’s the one that got sho.. I think that’s the one that got popped”. There are three occasions (although the transcript records only two) where the Crown contends that the word “I” or “I got” can be heard in the recording. There is little doubt that the person being referred to is Mr Odisho. He is referred to as “Mikey” and as “Fred’s coey.” Throughout the trial, many witnesses have referred to him as “Mikey”. Later in the conversation Mr Qaumi says that he heard about the shooting of Mikey “on the news”.

Before returning to the arguments and my consideration of the evidence, I will set out the entirety of the conversation. The relevant passage is italicised and emboldened. I have placed in square brackets the competing version provided by the defence.

Senior Counsel accepted that generally such matters are questions for the jury. However, it was contended that if my factual finding was that the defence version of what is recorded is the correct one, the evidence is not relevant because it contains no admission. It was accepted that if I formed the view that it was “open” to the jury to accept the Crown’s interpretation, the evidence would be admissible. [3]

There is little doubt that questions such as the present are generally matters to be determined by the tribunal of fact. There is a clear delineation between the role of the trial judge and that of the jury. However, there will be occasions where a recorded conversation is so unclear that a trial Judge will reject the evidence because it cannot “rationally” effect an assessment of a fact in issue: s 55 Evidence Act 1995 (NSW). There may be other cases where the quality of the recording is so poor that a judge might consider that tendering the evidence may be a waste of time: s 135 Evidence Act, cf R v IMM [2016] HCA 14 at [58]. However, generally such evidence will be admitted and “it will be for the jury to ultimately to ascribe a meaning and import, if [it] can”: cf R v Cornwell [2003] NSWSC 97 at [29]. Where the “admission” is equivocal, there may be other bases for excluding the evidence: R v Doolan [1962] QD R 449.

In view of the role of the jury in determining factual disputes, I was somewhat diffident as to the importance of any opinion that I may form as to what was said by the accused. However, in deference to counsel, I have undertaken a somewhat painstaking process of attempting to discern what was said. Having listened to the relevant portion many times, I am of the opinion that it would be open to the jury to accept parts of the Crown’s version of the conversation. On my perception, or opinion, on listening to the recording many times, the accused used the word “I” on at least two relevant occasions. My perception was that he said “the one I got opped, popped” and “the one I got sho..”

I accept that another listener may form a different opinion but I have concluded that the version contended for the Crown is one that is “open” to the jury to accept.

Given appropriate directions, I can see no danger of the jury misusing the evidence or of any unfair prejudice. The jury will be directed that unless it clearly hears the words in the way for which the Crown contends, the evidence cannot be used against the accused in any way.

For those reasons, I find that the evidence is admissible.

Further submissions were made as to the danger of providing a transcript which has the capacity to subliminally impact upon the listener’s perception of what is said. I accept that submission. The jury will not be provided with a transcript of the telephone intercept unless the parties (and, in particular, the accused) takes the forensic decision that it should be provided with a transcript with the controversial portion edited out or a transcript that contains both versions.

For those reasons, my rulings are as follows: