R v Qaumi & Ors (No 28)

1. [1]

   The accused Mohamed Kalal objects to certain parts of a recorded interview with a witness to whom I will refer as “HZ”. None of the co-accused joined in the objection. The objection relates to a number of specific questions and answers, or parts of answers, contained in an interview dated 24 December 2013 that comprises around 230 questions. The witness received a number of shotgun wounds in the course of what has been referred to as the “Zakaria shooting” (counts 8 and 9 on the indictment). At the time she was 13 years old.

2. [2]

   Section 306M(1) of the Criminal Procedure Act 1986 (NSW) defines a “vulnerable person” as a child or cognitively impaired person. Sections 306S and 306U provide that a vulnerable person may give evidence by way of a recording made by an investigating official. The Crown seeks to adduce some, or all, of the witness’s evidence in chief by means of the pre-recorded interview.

3. [3]

   A copy of a transcript of the interview was tendered on the voir dire as Exhibit VD PP.

4. [4]

   There is no issue that the witness is a vulnerable person, that she is entitled to give evidence by this means and that large parts of the interview are relevant and admissible. Exhibit VD PP indicates a number of areas where the Crown has apparently agreed to make deletions from the recording and the transcript.

5. [5]

   The material that remains in dispute (as between Mr Kalal and the Crown) concern answers that the witness gave about the injuries (both physical and emotional) that she sustained. In some cases, the basis of the objection is that the answer is hearsay – that is, the witness was telling the interviewer what a doctor or doctors had told her or what she understood the hospital notes disclosed. In other instances, the objection appears to be that the probative value of the evidence is outweighed by the danger of unfair prejudice. As counsel put it in respect of one answer (Q 200) “it is like a victim impact statement” [1] . I take this part of the objection to be based on the provision in s 137 of the Evidence Act 1995.

Hearsay

1. [6]

   It seems that the Crown is in a position to call medical evidence from a doctor or doctors that will explain the extent of the injuries, the medical treatment required and HZ’s prognosis. The Crown does not seek to rely on any exception to the hearsay rule (eg ss 66 and 66A of the Evidence Act). Accordingly, if the evidence is caught by the hearsay rule in s 59 it is not admissible.

2. [7]

   I accept the objection based on the hearsay rule. It some instances it is clear that the answer is hearsay. In others, it is a reasonable inference to be drawn from the way the answer was given or elicited.

3. [8]

   The italicised parts of the following questions and answers are not admissible:

Section 137 objection

1. [9]

   The objection that I take to be based on s 137 concerns question and answer 200:

2. [10]

   As I have said, it was submitted that this answer “read like a victim’s impact statement”. It was certainly a very open ended way to ask the question and parts of the answer are not relevant and are apt to create sympathy. However, most of the answer might rationally affect an assessment of whether the witness sustained grievous bodily harm.

3. [11]

   It was submitted that the fact that the injury constitutes “grievous bodily harm” is not a matter in dispute. Accordingly, so the submission went, much of this answer is of little probative value to any live issue in the trial.

4. [12]

   Prior to the luncheon adjournment, I asked counsel for each of the accused charged in relation to the Zakaria shooting (that is, all of the accused men except Mr Zarshoy) whether grievous bodily harm was admitted. Each indicated that it was not a matter that was subject to dispute. However, when asked whether there was going to be any formal admission in relation to the matter, counsel was more circumspect. I indicated that I would need to have a “clear indication” of whether the accused would make “formal admissions under the Act”. [2] This was a reference to admissions pursuant to s 184 of the Evidence Act 1995 or agreement as to facts under s 191 of the Evidence Act 1995.

5. [13]

   Following the adjournment the following exchange occurred with counsel for Mr Kalal:

6. [14]

   None of the other accused indicated that there was to be any formal admission or agreement as to the facts.

7. [15]

   In the absence of any clear understanding of what is to be admitted in relation to the issue of grievous bodily harm, and how that admission is to be communicated to the jury, the Crown is entitled to prove the nature of the injury as well as the physical, emotional and psychological impact of the injury. Such evidence can come from doctors, other health care professionals, photographs, family members and from the witness herself. For that reason most of the answer to question 120 is admissible. Any potential prejudice (arising from sympathy) can be cured by direction.

8. [16]

   However, where evidence is unduly emotive, the probative value of the evidence may be outweighed by the danger of unfair prejudice even allowing for directions to the accused. If I formed that view, the evidence “must” be excluded: s 137. It should be remembered that the shooting of an innocent 13 year old is likely to evoke strong emotions in the jury. Further, at least some parts of the answer are not relevant to any issue in the trial.

9. [17]

   Applying those principles, the following parts of the answer to question 200 are not admissible:

10. [18]

    If the parties form the view that editing those parts of the answer is impracticable or may create greater prejudice because the editing will be obvious, there are three possible solutions. First, the Crown could elect not to press the evidence. Secondly, I could direct the jury that the interview has been edited to take out irrelevant material. Thirdly, the whole answer could be played and I could direct the jury that it should disregard those parts of the answer identified in the preceding paragraph.

11. [19]

    Subject to those matters, the answer to question 200 is admissible.