R v Qaumi & Ors (No 29)

On Thursday 5 May 2016, Mr Clarke of counsel made an application for a discharge of the jury in respect of his client Mohammed Kalal. The application arose because of the potential prejudice occasioned by the cross-examination of a prosecution witness (Craig McCarthy) by Senior Counsel for Farhad Qaumi late on Wednesday 4 May 2016. I refused the application. These are my reasons for doing so.

The witness’s evidence concerns the hiring of a rental car on 28 October 2013. The witness says that he hired the car with the accused Mohammed Kalal. That evidence appears to be undisputed and is supported by documentary evidence (Exhibit UUU). Mr McCarthy went on to give evidence that the car was used that afternoon to deliver cannabis. On the Crown case, the car was used later that night or in the early hours of the following morning, to drive the assassins to and from Bardo Circuit Revesby Heights where Mahmoud Hamzy was shot dead. It was later found burned out. It is no part of the Crown case that Mr Kalal (or the witness McCarthy) hired the car in the knowledge that it would be used in the murder. As I understand it, the evidence will suggest that the plan to commit the murder at Revesby Heights was not hatched until afterwards.

Mr Kalal is charged in relation to two shootings that occurred later in time (counts 8 to 17) as well as with an offence of participating in a criminal group (count 24). The evidence of Mr McCarthy concerning the hiring of the car and its use in doing drug deals is admitted against Mr Kalal only in relation to count 24. The Crown does not seek to use that evidence against him in any other way.

The cross-examination that provoked the application for a discharge of the jury was as follows:

That is the whole of the cross-examination and I have italicised part of the passage for reasons that will become clear. The objection taken by the Crown Prosecutor occurred a couple of minutes before 4 o’clock. The jury was released for the day while the objection was ventilated. The Crown’s objection was that there was confusion as to who the witness was talking about and who it was that was said to have supplied the witness with drugs. It emerged in argument that the Crown’s submission was correct. The parties seem to agree that the part of the interview referred to in cross-examination was in fact referring to the accused Mohammed Kalal. However, it referred to “Zack or Mohammed Khalil”. It was the result of the misspelling, or mispronunciation, of the last syllable (which I have italicised) that led Senior Counsel into error.

The argument on the objection included the following:

The reference to the one sided cut throat defence is a reference to the fact the Mr Kalal is mounting a defence to the effect that he was only involved because he was under duress by Farhad Qaumi.

Counsel for Mr Kalal did not object to the evidence as it was being given. However, the following morning he indicated that he was instructed to make an application to discharge the jury. The failure to object should be put to one side although it might be thought that, if the prejudice is as significant as is now suggested, it would have been clear as the evidence was elicited. Having said that, I was concerned as the evidence came out that there was confusion over the identity of the person who was said to have just “got out of gaol” and to be “stand over bloke sort of”. That concern arose partially because of the witness’s denial that he knew Witness L. Even though I had not read the interview to which Senior Counsel was referring, I was concerned that it may be a reference to Mr Kalal.

Accordingly, I accept that the incident had at least some capacity to cause prejudice to Mr Kalal. However, the extent to which that is so is somewhat speculative. Whether the jury might have associated the cross-examination with Mr Kalal is doubtful although I accept that it is possible given the balance of the witness’s evidence. However, the cross-examination commenced with specific reference to “Witness L” and concluded when I asked Mr Stratton to confirm that he said “Witness L” and he agreed that he did. The name Mohammed Kalal was not mentioned at any stage. The closest it came was the reference to “Zack or Mohammed Kalil”.

Counsel agreed that the accused Kalal has not previously been referred to as “Zack” in the presence of the jury (although I had heard or read that nickname in the course of the lengthy pre-trial hearings). By agreement, the Crown instructed the witness not to refer to the nickname in the balance of his evidence and he did not do so. Even if it later emerges that this was a nickname associated with Mr Kalal, I have no doubt that this incident will have been forgotten in light of the amount of important evidence that the jury is receiving and digesting each day. In the context of a trial of this length, the incident is of very little significance.

The incident happened in the middle of the fifth week of the trial. It is anticipated that the Crown case will continue for at least another two months. It is unlikely that those few questions will remain prominent – if they ever were prominent - in the jury’s collective mind.

For those reasons, I formed the view that the incident could be cured by direction. Mr Stratton SC agreed to withdraw all of the cross-examination that is italicized in the passage set out above at [4]. The parties agree that if the jury asks for this part of the transcript, that portion should be redacted. When the jury returned to the courtroom, I directed them as follows:

In providing those directions I deliberately avoided reference to Mr Kalal, the reference to the person getting out of gaol or the suggestion the person was a “stand-over bloke”.

After Mr McCarthy finished giving his evidence, I provided the jury with direction as to the use that his evidence could be put in Mr Kalal’s case:

I very much doubt that any prejudice arose to Mr Kalal as a result of the cross-examination and Senior Counsel’s misapprehension as to the meaning of the interview. Even if there was any such prejudice, I am confident that the directions provided to the jury will have cured the prejudice.