R v Qaumi & Ors (No 43)

1. [1]

   At or towards the end of cross-examination of Witness I [1] by Mr Clarke on behalf of the accused Mohammed Kalal, Ms Carroll (counsel for Jamil Qaumi) and Mr Stratton SC (counsel for Farhad Qaumi) sought leave or permission to undertake further cross-examination of the witness. I allowed limited further cross-examination over the objection of Mr Clarke. These are my reasons for doing so.

2. [2]

   I have previously been called upon to consider a similar application by Jamil Qaumi in the course of the evidence of Witness G: R v Qaumi & Ors (No 32) [2016] NSWSC 675. I have also considered applications by Farhad Qaumi for orders under s 42 of the Evidence Act 1995 (NSW) preventing Mr Clarke from asking leading questions: R v Qaumi & Ors (No 39) [2016] NSWSC 797. In those decisions I made observations about the order of cross-examination and the forensic advantages and disadvantages which arise in this case where the accused last mentioned on the indictment (Mr Kalal) is conducting a defence of duress wherein the threats that underpin the defence came from the co-accused. This judgment must be read in conjunction with those earlier decisions and observations.

3. [3]

   Decisions as to whether further cross-examination should be permitted turn on considerations of fairness to the respective accused. There can be no hard and fast rule and the decision will turn on the particular subject matter of the proposed additional questions. What will not (generally) be permitted is a further attempt to impeach the witness’s credibility. As I have observed in the earlier judgments, by the time Mr Clarke cross-examines there has been a sustained and lengthy attack on the credibility upon whose evidence he seeks to place some reliance. However, where new evidence emerges in the cross-examination of Mr Clarke, considerations of fairness may require that the accused affected be permitted to at least challenge that evidence.

Application by Jamil Qaumi

1. [4]

   Ms Carroll submitted that the following evidence elicited in Mr Clarke’s cross-examination of Witness I was new and surprising and entitled her to embark on further cross-examination:

2. [5]

   Ms Carroll asserted that there was no material to similar effect in any of Witness I’s statements and that no such material was led in chief by the learned Crown Prosecutor. Accordingly, she sought to engage in further cross-examination on the subject.

3. [6]

   Mr Clarke submitted that Jamil Qaumi was on notice that such material might be elicited because he provided particulars of the matters going to his proposed defence of duress earlier in the trial. This occurred as a result of case management orders made following the (belated) re-agitation of an issue of admissibility concerning evidence sought to be tendered against the accused Farhad Qaumi: see R v Qaumi & Ors (No 23) [2016] NSWSC 429, R v Qaumi & Ors (No 24) [2016] NSWSC 505 and MFI 25.

4. [7]

   The particulars provided in MFI 25 identified Witness I as one of the witness through whom evidence supporting the defence of duress would be tendered. It identified certain parts of some of his statements. These did not include the evidence of which Ms Carroll complains. As I have said, Ms Carroll said that the material is not included in any of Witness I’s statements and Mr Clarke did not contradict that assertion. However, the particulars in MFI 25 also identified “the material supportive of his position, so far as the threats are concerned” and this included:

5. [8]

   Mr Clarke submitted that this document did (or ought to have) put counsel for Jamil Qaumi on notice that an attempt would be made to elicit similar evidence from other witnesses who may have been present. He argues that it was open to counsel to put a general proposition along the lines of “nothing was discussed in the park before you left to go to the Chokolatta with any witness?” [3]

6. [9]

   Whether counsel for Jamil Qaumi ought to have notice from these particulars that Witness I would be cross-examined on that conversation and that he would adopt it is questionable. Mr Clarke did not submit that it was contained in the statements of the witness. In any event, it is an important conversation from Jamil Qaumi’s point of view and one that (I am told) he denies. I formed the opinion that he was entitled to put to the witness that the conversation alleged did not occur. Further, he was entitled to put to the witness that there was nothing in the witness’s statement(s) suggesting that such a conversation occurred.

7. [10]

   The unfairness to Jamil Qaumi in not permitting such limited cross-examination would have been substantial. Mr Clarke was unable to identify any relevant or significant unfairness to Mr Kalal in permitting the cross-examination. He submitted that “I want to maintain the forensic advantage of my place in the indictment”. He reminded me that he was conducting (amongst other things) a defence of duress. Neither of those matters, nor the combination of them, creates unfairness of any significance.

8. [11]

   For those reasons I permitted Ms Carroll to undertake some very limited cross-examination at the conclusion of the cross-examination on behalf of Mr Kalal. That cross-examination was as follows:

9. [12]

   Mr Clarke did not seek to ask further questions after this cross-examination. [4]

Application by Farhad Qaumi

1. [13]

   The application on behalf of Farhad Qaumi raised different considerations. It concerned evidence of things allegedly said by Mr Kalal at the scenes of the Zakaria shooting and the Chokolatta Café shooting. In each instance, Senior Counsel for Farhad Qaumi submitted that the cross-examination may have left the evidence in a state where it was misleading or confusing.

2. [14]

   This arose from the following cross-examination on behalf of Mr Kalal in relation to the Zakaria shooting:

3. [15]

   Evidence that Mr Kalal said “I got him, I got him” and “don’t worry, I got him” emerged in the cross-examination by Mr Stratton SC and was based on things said to the police and in the witness’s statements. [6] Mr Stratton did not elicit evidence that the witness told police that Mr Kalal also said “Let’s go let’s go”.

4. [16]

   My attention was drawn to the contents of the witness’s statement dated 12 January 2015 and signed 16 January 2015. [7] The statement relates to the Zakaria shooting. In paragraph [49] of that statement Witness I said that after the shooting “Moey” [that is, the accused Kalal] “started screaming ‘Let’s go, let’s go.” The group then drove away and in the car “Moey was saying, ‘I got him, I got him’.

5. [17]

   While it was not suggested – and, in any event, I do not accept – that there was any attempt to mislead either the witness or the jury, I formed the view that the state of the evidence was confusing. The way in which the questions were put – “Do you think that might have been more accurate” – suggested that either one thing was said or the other. The witness had told Mr Stratton that Mr Kalal said one thing (“I got him, I got him”) but appeared to accept that what he really said was another (“Let’s go, let’s go”). However, his statement suggested that the witness’s evidence was that both things were said.

6. [18]

   Because the prosecution did not elicit the evidence, and was disinclined to apply to cross-examine his own witness, the Crown Prosecutor indicated that he did not intend to re-examine on the subject.

7. [19]

   I formed the opinion that the state of the evidence was confusing and possibly misleading and that this had potential to operate unfairly on Farhad Qaumi.

8. [20]

   A very similar circumstance arose in relation to the Chokolatta Café shooting. The witness was asked the following questions by counsel for Mr Kalal in relation to the events that occurred after the shooting:

9. [21]

   The statement of the witness (MFI 111) referred in paragraph [70] to “Moey” saying “let’s go, let’s go” but it went on to allege that, as the perpetrators drove away, Mr Kalal said “I got him, I got him.”

10. [22]

    I offered Mr Clarke the opportunity to clarify the matter but he declined that opportunity on the basis (as I understand it) that his cross-examination was based on his instructions and not on what appeared in the statements. [8]

11. [23]

    Accordingly, I allowed Mr Stratton to clarify the matter but the extent of the examination was extremely limited. I could see no unfairness to Mr Kalal in allowing Senior Counsel for the co-accused to untangle what may have been confusing and misleading evidence.

12. [24]

    Mr Stratton SC asked the following further questions:

13. [25]

    Counsel for Mr Kalal did not seek to ask further questions. [10]