R v Qaumi & Ors (No 33)

At the conclusion of the evidence of a witness known as Witness G [1] , Senior Counsel for Mumtaz Qaumi sought a direction pursuant to s 165 of the Evidence Act 1995 (NSW) that certain evidence may be unreliable. Initially, the direction was sought in relation to the witness who was next to be called, a witness known as Witness M. However, in the course of argument it was conceded that giving the direction before Witness M gave evidence was inappropriate because it was not known with any certainty what evidence the witness would actually give or what evidence would emerge that supported a direction that her evidence fell into a category that may be unreliable. Senior Counsel then sought a s 165 warning in relation to Witness G.

The learned Crown Prosecutor did not oppose the giving of a direction provided that it was balanced by a direction that the evaluation of the evidence must ultimately be made after the jury had heard all of the evidence in the case. Senior Counsel for Farhad Qaumi and counsel for both Jamil Qaumi and Mohammed Zarshoy supported the application. Counsel for Mohammad Kalal opposed the giving of a direction at this stage of the trial. He submitted that all directions, including warnings as to the potential unreliability of certain categories of evidence, should all be given at the end of the trial in the course of the summing up.

The evidence of Witness G fell into at least three categories of evidence specifically referred to in s 165(1). First, he gave evidence of admissions allegedly made to him by Jamil Qaumi and Mumtaz Qaumi: s 165(1)(a). Secondly, he is a person who might reasonably be supposed to have been a criminal concerned in some of the events giving rise to the proceedings. Third, he is a prison informer: s 165(1)(e).

In the context of the present argument, a number of things may be observed about s 165. First, categories in sub-s (1) are not exhaustive. Secondly, the requirement for a warning is mandatory unless “there are good reasons for not” giving the warning. Third, the warning does not require that any particular form of words be employed. Fourth, the section does not specify when the warning should be given.

Mohammad Kalal relies on the evidence for Witness G in some respects: see R v Qaumi and Ors (No 32) [2016] NSWSC 675. However, Mr Clarke (who appears for Mr Kalal), did not submit that there are good reasons for not giving the warning. Rather, he opposed giving the warning at this stage of the trial. He submitted that all such warnings and legal directions should be given during the summing up. I understand that he is concerned that the warning would attract undue prominence if given at this stage of the trial. I was unable to accept this submission.

While it is the case that most legal directions are given during the summing up, it is common for trial judges to provide legal directions during the course of the evidence or in their opening remarks to the jury. The following are some examples of a general nature and others that have arisen in the present trial.

It is customary, although not universally the case, that the jury is told about the onus and standard of proof at the beginning of the trial before any evidence has been elicited. This occurred in this trial. [2]

Directions to the jury regarding an accused person’s right to silence and warnings against misuse of evidence that establishes that an accused person elected not to be interviewed by police or to respond to allegations put to them by investigators are almost always given at the time that the evidence is elicited. That occurred in this trial at the invitation of the learned Crown Prosecutor.

Again, where evidence is adduced of criminal acts that are not charged on the indictment, the best practice in most cases is to provide the jury with some direction as to the basis upon which such evidence is admitted and any limitation upon its use. The jury should be told if such evidence is elicited to put the events charged in their true context and, if that is the basis, be warned against tendency or coincidence reasoning. It may be that the evidence is admitted as tendency evidence or in rebuttal of an assertion of good character and, in each case, it is usual and appropriate that the jury will be given certain directions at the time that the evidence is adduced as well as in the summing up.

In the present case, it has been necessary from time to time to direct the jury as to the basis upon which certain evidence is admitted and against which accused it is admitted. For example, evidence that Mr Kalal and another man rented a motor vehicle on the day of the alleged murder of Mahmoud was admitted against all accused. However, its use in each case was different. In the case of Mr Kalal, the evidence was admissible only in relation to a charge of participating in a criminal group (count 24). This was because there is evidence that he used the car in a drug run that afternoon but there is no evidence, and no suggestion, that he knew it was used later that night in the commission of the murder. The evidence was admitted against the other accused as part of the circumstantial case in relation to the murder. The jury was given direction as to the use to which the evidence could be put in each case and warned in relation to its limited use in Mr Kalal’s case: see R v Qaumi & Ors (No 29) [2016] NSWSC 569 at [14].

The jury has also received direction about the fact that the evidence establishes (and it is obvious) that the accused men are in custody. The jury was warned that this was not uncommon in cases of this kind, the difficulties in obtaining bail for serious offences and told that it ought not to create prejudice against the accused. [3] The nature of a “Basha” Inquiry was also explained to the jury. [4]

The foregoing analysis shows that there are many occasions when it is appropriate to direct the jury in the course of the trial about matters that will also form part of the summing up. I formed the view that it was appropriate to provide a s 165 warning in relation to Witness G in the course of the evidence for three main reasons.

First, counsel has indicated that it is expected that the Crown case will not conclude for around another two months. Allowing for some defence case and addresses by six counsel, the jury is unlikely to receive the summing up for around 3 months. The jury is no doubt making tentative assessments of the quality of the evidence and the credibility of the witnesses as the case progresses. Given the effluxion of time between hearing the evidence of the witness and the summing up, it is sensible and appropriate that the jury be warned in advance that his evidence falls into a category (or categories) that the law recognises may be unreliable.

Second, Witness G is the first of around ten or twelve witnesses who might generally be described as informant witnesses. Many of these witnesses will no doubt attract applications for directions under s 165 or other warnings. From the material tendered on the pre-trial hearing, the nature of the attack to be made on their credibility varies from witness to witness while there are some common features. If all of the warnings are given in the course of the summing up, it is likely that the impact of the warnings will be diluted. There is a danger that the impact of the directions will be reduced.

Third, while the Crown relies on a body of evidence that the jury may accept supports the evidence of the informants and implicates the accused in the various offences, the prosecution case appears to be significantly reliant upon this large body of evidence from witnesses who have “rolled over”, in most cases in exchange for benefits such as reduced charges, discounts from their sentences and transfer to more comfortable or safer prisons. In those circumstances, it is critical that the jury receive forceful warnings at an early stage as well as during the course of the summing up.

I accepted the Crown’s submission that, if a warning was given at this stage, I should also remind the jury that the evidence of the impugned witness had to be evaluated in the light of all of the evidence and that this could not be done until the Crown called all of the evidence upon which it relies. Similarly, in deference to the concerns raised by Mr Kalal it was appropriate to ensure the jury understood that the warning did not mean that the evidence of the witness should be disregarded or that the jury might accept parts of his evidence while rejecting other parts. A direction to that effect was also given in my opening remarks to the jury. [5]

For those reasons I provided the jury with the following warning shortly after Witness G left the witness box and before the next witness was called: