R v Qaumi & Ors (No 61)

In the course of his cross-examination of Jamil Qaumi, counsel for Mohammed Kalal sought to introduce evidence to rebut evidence by which it was contended that Jamil Qaumi raised his good character. Mr Kalal relied on s 110 of the Evidence Act 1995 (NSW). Counsel for Jamil Qaumi opposed the cross-examination. She was supported in her opposition by Senior Counsel for Farhad Qaumi. Senior Counsel for Mumtaz Qaumi said that he felt uncomfortable about it. The Crown Prosecutor indicated that he did not seek leave to cross-examine under s 110 of theEvidence Act. In spite of the submissions of counsel for Jamil Qaumi and the serious misgivings I had as to the purpose for which the relevant evidence was elicited, I refused the application to introduce the evidence. These are my reasons.

Section 110 provides as follows:

The evidence that created the controversy was elicited in the last question asked of Jamil Qaumi in his evidence in chief:

Counsel for Mr Kalal submitted that this question and answer constituted, at least by implication, evidence that Jamil Qaumi was a person of good character. He sought to cross-examine Jamil Qaumi to rebut that suggestion. He sought to introduce two pieces of evidence. First, he sought to prove that Jamil Qaumi has a prior conviction for common assault. Second, he sought to establish part of the circumstances surrounding an incident that occurred in the courtroom on 1 August 2016. The circumstances of that incident are set out in an earlier judgment: R v Qaumi & Ors (No 55) [2016] NSWSC 1068 at [2]:

A somewhat complicating factor is that Mr Kalal is attempting to mount a defence of duress. However, it was not suggested by counsel for Mr Kalal that the evidence of Jamil Qaumi committing two assaults (one conviction and one in court) could be introduced if it were not for the evidence elicited in chief. In other words, it was not submitted that Mr Kalal would otherwise be entitled to introduce the evidence as relevant to his case of duress. It is the introduction of evidence of good character in Jamil Qaumi’s own case that is said to give rise to the opportunity to adduce evidence that he has been convicted of assault and that he assaulted Mr Kalal in the courtroom.

The terms of s 110, and in particular the expression “if evidence adduced to prove”, confirm that the raising of good character involves a “subjective intention on the part of the accused”: Odgers, Uniform Evidence Law, 12thed(2016), Lawbook Co [EA.110.90]. In PGM v The Queen [2006] NSWCCA 310; 164 A Crim R 426, Barr J (with whom McClellan CJ at CL and Buddin J agreed) said at [35]:

Accordingly, the opportunity for another party to rebut evidence of good character only arises where evidence is elicited in a calculated attempt to establish good character (either generally or in a particular respect).

Confronted with Mr Kalal’s application, counsel for Jamil Qaumi argued that the evidence was adduced for a purpose other than to establish good character. Counsel’s arguments were unpersuasive and had the hallmarks of retrospective self-justification.

Counsel commenced by suggesting that the evidence was introduced to rebut the prejudice that arose from the fact that the jury is aware that the accused was in custody. However, that matter was subject to discussion on many occasions in the early stages of the trial and on 27 May 2016 the jury was given directions with which all counsel agreed [1] . In any event, the only process of reasoning by which the evidence could ameliorate the supposed prejudice is by inviting the jury to speculate that the fact that Jamil Qaumi was in custody for the first time was because he was previously a person of good character (or at least a person with no serious criminal record).

Counsel then referred to four parts of evidence concerning Jamil Qaumi’s conduct while in gaol. It was submitted that the evidence was introduced to put that in context. If that were the case, one would have expected there to have been cross-examination of the relevant witnesses or for the evidence to have been led during that part of Jamil Qaumi’s evidence in chief where those matters were raised.

The first example was that shortly after he went into remand he was shouted at by Mohammed Hamzy (the target of the first shooting in which Mahmoud Hamzy was killed by being shot in the head). Jamil Qaumi’s evidence was that he shouted and swore back at Mohammad Hamzy. I was unconvinced that the fact that this was his first time in gaol had any capacity rationally to affect any relevant issue that arises from that incident. Counsel could not explain how the fact that this was his first time in custody impacted on the jury’s consideration of his conduct in shouting back at Mohammad Hamzy. When this evidence was elicited in chief, no questions were asked to suggest that Jamil Qaumi’s behaviour was motivated or explained by the fact that he had been taken into custody for the first time. [2]

The next incident concerned evidence that Jamil Qaumi got a tattoo when he was in custody. The tattoo in question was “187”. Section 187 of the Penal Code of California proscribes the offence of murder. Street gangs in the United States are known to have that tattoo as a badge of honour: see, for example, People v Ochoa(2001) 26 Cal. 4th 415; see also the Urban Dictionary(online). [3] Witness I gave evidence of Jamil Qaumi’s tattoo. [4] Jamil Qaumi’s evidence was that everybody was getting tattoos and that he just got the same tattoo as the guy before him. Again, no evidence was adduced at that time to suggest that he did this because it was his first time in custody. [5] The link between those two things is tenuous at best.

The third issue concerns evidence that Jamil Qaumi shared a cell with Mohammed Kalal. The Crown case, and Mr Kalal’s case, is that Jamil Qaumi did this to prevent Kalal from “rolling over” and providing information to the police. Jamil Qaumi’s case is that he wanted to stay with Mr Kalal for his personal safety. I accept that there is a possible connection, albeit slight, between that controversy and the fact that this was Jamil Qaumi’s first time in custody. However, if that were truly the purpose for which the evidence was introduced it would be expected that it would have been introduced either in cross-examination or at the time that the evidence of sharing a cell was elicited from Jamil Qaumi. [6]

The final matter upon which counsel relied was correspondence from Witness M in which she expressed concern for Jamil Qaumi being in gaol. In addition to the letters, there were recorded conversations between Witness M and Farhad Qaumi. Witness M said she visited the Qaumis in gaol, sent them letters and said the things that she said because she felt pressured and threatened by Farhad Qaumi. The Qaumis’ case is that her conduct was motivated out of genuine affection and concern. Again, I can see that the evidence that this was Jamil Qaumi’s first time in gaol may have some slight relevance to that issue. However, once again, if that was the true purpose for its introduction it would have been elicited in cross-examination of Witness M.

If the evidence was elicited to explain Jamil Qaumi’s conduct in gaol or in relation to any other issue, it would have been led during relevant parts of his evidence in chief. It was not. The transcript records the circumstances in which the evidence was elicited:

That was the last question and answer in Jamil Qaumi’s evidence-in-chief. I have italicised the most significant portion of the exchange for present purposes but the whole passage must be considered in context. From that passage, and from the context in which the evidence was elicited (removed from any of the areas that counsel, in retrospect, suggested that the evidence was relevant to), it is difficult to escape the conclusion that counsel was attempting to slip into the evidence something that hinted that her client was a person without any significant criminal past. That is “evidence adduced to prove (directly or by implication) that a defendant is a person of good character” either generally or in particular respect. Ordinarily that would mean that evidence could be adduced by the prosecutor or by a co-accused to rebut that suggestion. The evidence of the previous conviction for assault and the evidence of the accused throwing punches at a co-accused in the dock is evidence capable of rebutting the implication that Jamil Qaumi is a person of good character.

However, I concluded that the circumstances were such that I should not permit such evidence. There were five main reasons for this conclusion.

First, the exchange set out in [15] of this judgment demonstrates that counsel retreated from the attempt to adduce her client’s limited conviction history. That may suggest a retreat from her attempt to adduce evidence that involved, as she put it, “a limited raising of character in that sense”.

Second, on a further review of the CCTV footage of the incident in court, one interpretation is that Jamil Qaumi joined the fracas to support his brother. It may be that a more likely interpretation is that Mumtaz and Jamil Qaumi had jointly planned the assault. Things happened so fast that it is difficult to know with certainty. Counsel for Mr Kalal indicated that he did not seek to lead evidence of Mumtaz Qaumi’s involvement. This means that the jury may get a distorted understanding of what happened. The only way for the jury to receive an accurate understanding of what occurred is by playing the CCTV footage. This would operate unfairly to Mumtaz Qaumi notwithstanding that it was his outlandish and violent behaviour that started the incident.

Third, I accepted the submission that the background to the incident that occurred in court on 1 August 2016 is complicated. This was not the first time that violence has erupted in the dock. In the course of the pre-trial hearing there was a violent incident in the dock that occurred in my absence. From what I have been told by others, that incident involved violence directed towards the Qaumi brothers. After the incident, a razor blade was located in the dock. The circumstances are discussed generally in the judgment known as R v Qaumi & Ors (No 8) [2016] NSWSC 184 at [15]-[21]. An exploration of the background which may be occasioned by introduction of the evidence is likely to be time-consuming and create prejudice to a number of the accused.

Fourth, counsel for Mr Kalal did not submit that the evidence was admissible, per se, on the issue of duress. The evidence counsel sought to lead in cross-examination does not have a capacity to gainsay the evidence adduced in chief (that is, that this was Jamil Qaumi’s first time in custody).

Finally, I concluded that counsel should be given the benefit of the doubt. In other words, rather than concluding that this was a deliberate and underhanded attempt by counsel to imply that her client was a person of good character, I proceeded on the basis that she made a genuine forensic mistake in the heat of the moment. What should have been done was to indicate that she had decided not to lead the evidence of the limited prior criminal record but to lead the evidence that it was Jamil Qaumi’s first time in custody. She could then have sought an advance ruling under s 192A Evidence Act as to whether that would expose her client to cross-examination on his character.

The seriousness of the decision to raise good character was emphasised in the case of R v Hamilton (aka McBride), unreported, Court of Criminal Appeal (NSW), 6 July 1993. In that case, a conviction was quashed as a result of the negligence of counsel in raising good character without first confirming that there was no evidence to rebut the suggestion. While R vHamilton was a case decided under the common law, practitioners should recall the following passage in the judgment of Hunt CJ at CL:

Following the High Court’s decision in TKWJ v The Queen [2002] HCA 46; 212 CLR 124, the Evidence Act was amended to introduce s 192A which allows for advanced rulings on issues such as those that arise in the present circumstances. Practitioners should be aware of that provision and, when in doubt, seek a ruling in advance.

Even though I formed the view that either ss 110(2) or (3) of the Evidence Act was engaged, I concluded that it would be unfair for counsel’s mistake to be sheeted home to the accused. The probative value of the evidence was not great in rebutting the limited evidence that was led. Neither the prior assault conviction nor the incident that occurred in court is capable of rebutting the evidence that this was Jamil Qaumi’s first time in custody.However, it did have some probative value in rebutting an implication of good character. Against that, the evidence had some capacity to mislead in that only part of the incident in court would be led: s 135(b) of theEvidence Act. If evidence of the whole of that incident was led, it may have operated unfairly to the other accused: s 135(a). Exploration of the background to the incident may have resulted in an undue waste of time: s 135(c). Those matters substantially outweighed the probative value of the evidence given the limited way in which the issue was raised.I also formed the view that the probative value of the evidence was outweighed by the danger of unfair prejudice: s 137. The unfair prejudice arose from the accused being punished forensically as a result of a mistake made by his barrister in the heat of the moment.