R v Qaumi & Ors (No 37)

At the conclusion of the cross-examination by Mr Driels (counsel for Mr Zarshoy), the Crown Prosecutor sought leave to cross-examine Witness M pursuant to s 38(1)(a) of the Evidence Act 1995 (NSW). It was submitted that part of her evidence was unfavourable to the Crown. Mohammad Zarshoy opposed the granting of leave. I refused the Crown’s application, while leaving it open to the Crown to make a further application depending on the evidence given in re-examination. These are my reasons for refusing leave to cross-examine and also for refusing to make a direction under s 38(4) of the Evidence Act that such cross-examination take place after the cross-examination of the accused.

Witness M [1] was the driver of the vehicle that drove the shooters to Revesby Heights on the night of 28 October 2013. It is the Crown case that there were four people in the car and that three of them were armed. When the car arrived outside the Hamzy residence, the three armed men entered the premises and discharged their weapons with murderous intent. As a result, Mahmoud Hamzy was killed and Omar Ajaj was wounded. The three men were driven away from the scene by Witness M. It is the Crown case that the three armed men were Witness L, Jamil Qaumi and Mr Zarshoy. Witness M nominated Witness L and Jamil Qaumi but did not identify or nominate Mr Zarshoy.

The Crown sought leave to cross-examine Witness M to put to the witness that the third man in the car was Mr Zarshoy. In making the application the Crown made the following submissions:

When asked whether Mr Driels took the view that the Crown was required to put to Witness M that Mr Zarshoy was the third man in the car, Mr Driels responded:

Based on that absence of concession, the Crown made the application under s 38 of the Evidence Act. Section 38 provides:

Because of the provision in subsection (4), the Crown also (implicitly at least) sought a direction that the cross-examination take place after the cross-examination by Mr Driels.

In the course of Witness M’s evidence in chief, Witness M described the fourth person in the car that went to Revesby to commit the Hamzy killing:

Witness M’s subsequent evidence in chief was that the fat man with dark eyes was the third armed man.

In cross-examination, Witness M agreed that Mr Zarshoy was not present on 28 October 2013 at the incident that occurred at the Hamzy shooting.

The portion of the evidence in chief that I have italicised and emboldened in [7] should have put the Crown Prosecutor on notice, if he was not already on notice, that Witness M’s evidence was unfavourable to that part of the Crown case that asserts that Mr Zarshoy was the third man who entered the Hamzy premises on the night of the murder. I was not provided with the statements of the witness on this application (although I have seen them in other contexts). There is nothing to suggest that Witness M had said anything relevant to this issue that was inconsistent. In any event, because Witness M’s italicised answer is directly contrary to the proposition that Mr Zarshoy was the third armed man, it may have been appropriate to grant leave to cross-examine on that issue if an application was made before the witness was cross-examined.

However, the application came after Mr Driels had engaged in a very brief and targeted interrogation. Mr Driels told the Court (and I accept) that he deliberately did not go into evidence (consistent with Witness M’s current account) that the Witness M gave at the NSW Crime Commission on the same subject. No doubt, the refreshing sparseness of the cross-examination (which came after the witness had been cross-examined over several days by three other counsel) was tailored to the circumstances and guided by the manner in which the evidence in chief was elicited.

Section 38(4) of the Evidence Act makes it clear that, ordinarily, a party that seeks to cross-examine its own witness ought to do so prior to the other party’s cross-examination. I could see no basis in the circumstances to make a direction that this order of examination not be followed. Neither the matters referred to in s 38(6) nor the catalogue of matters to be taken into account under s 192 of the Evidence Act dissuades me from that conclusion. Some of the matters in s 192 support the conclusion. For example:

As to the importance of the evidence, it seemed that the Crown’s application was really an attempt to avoid criticism for failing to comply with its obligation of fairness; that is, to put to the Witness M that the evidence was not correct in order to be able to make submissions to the jury in that regard: see, for example, R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34 at 41 and Livermore v R [2006] NSWCCA 334; 67 NSWLR 659.

In view of the fact that the application has now been made and refused, it seems unlikely that such criticism (either from the bench or counsel) could be justified. While the Crown has not suggested (and, as I understand it, did not intend to suggest) that Witness M was deliberately writing Mr Zarshoy out of the script, it has led as calculated to undermine the reliability of Witness M’s evidence. This included the fact that Witness M had only met the third armed man once, had not met Mr Zarshoy before and did not see him in the dock for 2 years after the Hamzy shooting. It will be no breach of the rules of fairness discussed in Livermore and Kennedy for the Crown to go to the jury on the basis that the evidence of other witnesses should be preferred of that of Witness M on this issue.

In re-examination, the Crown elicited to the following evidence:

No further application was made for leave to cross-examine Witness M or for a direction that such cross-examination take place after counsel for Mr Zarshoy had completed his cross-examination.