R v Qaumi & Ors (No 26)

On Thursday 28 April 2016 I granted a certificate under s 128 of the Evidence Act 1995 (NSW) to the witness Omar Ajaj. These are my reasons for granting the certificate.

Omar Ajaj is the nominated victim of the offence charged in count 2 of the indictment. On the Crown case he was not the target of the shooting but happened to be present at the home of his cousin, Mohammed Hamzy, who was the proposed target. As it turned out, Mohammed Hamzy escaped uninjured while his cousin Mahmoud Hamzy was killed and Mr Ajaj was injured.

Prior to Mr Ajaj being called to give evidence, Ms Carroll who appears for Jamil Qaumi brought to my attention the fact that she proposed to ask questions in cross-examination that might lead the witness to give evidence capable of incriminating him in relation to offences involving his participation in a criminal group (the Brothers for Life Bankstown) and his possession of ammunition. Ms Carroll indicated that the witness may need to obtain legal advice and that he should be advised of his right to object to giving such evidence: cf ss 128(1) and 132 Evidence Act 1995.

The Crown submitted that it was for the witness to obtain legal advice if he chose to and indicated that the evidence in chief would not venture into areas that might cause the witness to incriminate himself. The parties agreed that it was appropriate that the evidence in chief should be elicited and that I should then examine Mr Ajaj in the absence of the jury. Section 132 of the Evidence Act 1995 requires that if a witness “may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness … is aware of the effect of that provision”.

After the evidence in chief was given, the jury was invited to take an early morning tea and Mr Ajaj gave the following evidence on the voir dire:

I formed the conclusion that the witness had reasonable grounds for the objection: s 128(2). Given what is known of the activities of the Brothers for Life in Bankstown, an admission of an association with that organisation s could expose the witness to prosecution under s 93T of the Crimes Act 1900 (NSW). Similarly, admissions made in relation to a conversation about ammunition could give rise to offences under s 65 of the Firearms Act 1996 (NSW). Those are but two examples of offences in relation to which the proposed cross-examination may have led the witness to give evidence that “may tend” to incriminate him.

Ms Carroll then made submissions that it was “in the interests of justice” that the witness be required to give the evidence. I accepted her submission that the evidence that might be given in answer to such questions was relevant both to the prosecution case but also to the defence case. The Crown Prosecutor did not demur to the submissions made and agreed with Ms Carroll that the appropriate course was to grant a certificate and require the witness to give the evidence.

I was satisfied that these submissions were correct; that it was in the interests of justice that Mr Ajaj be required to answer the questions but that he should be protected by a certificate that the evidence could not be used against him, subject to the proviso that he was not protected from criminal proceedings in respect of the falsity of the evidence: s 128(7).

Accordingly a certificate was granted and helpfully provided by the solicitor instructing the learned Crown Prosecutor. I explained the effect of the certificate to Mr Ajaj. Mr Ajaj was cross-examined and the trial continued.

I should note that all of the process that I described took place in the absence of the jury. This was not necessary under the provisions of the Evidence Act 1995. Section 132 requires that the court must satisfy itself that the witness is aware of their rights in the absence of the jury but does not require that the objection be taken in the absence of the jury. However, the parties agreed in the circumstances that it was appropriate to deal with the objection and question of whether to require the witness to give evidence in the jury’s absence in order to ensure that there was a minimal interruption to the flow of the evidence.