R v Qaumi & Ors (No 47)

On the sixty ninth day of the trial, senior counsel appearing for Farhad Qaumi raised an objection to two portions of a sequence of telephone intercept material that the parties otherwise agree is admissible. I ruled that the particular portions were not admissible and that the recordings and associated transcripts should be edited before the material is presented to the jury. These are my brief reasons for that decision.

The whole sequence of recordings was not tendered on the voir dire but the parties explained the context in which the two particular telephone calls (in which the impugned portions are found) were made. That context concerns a bag containing drugs and two firearms that, on the prosecution case, was left for safe-keeping with a person known as Witness A. As I understand it, it is the Crown case that the owners of the items in the bag were Farhad, Mumtaz and Jamil Qaumi. Each is charged with offences (counts 20, 21 and 22) arising from their alleged possession of the drugs and two guns. Witness A gave evidence that he received the bag from Jamil Qaumi and was given directions as to what to do with it. During the course of his evidence a number of telephone intercepts were tendered. These involved conversations with a person called Masieh Amiri who was a member of the Blacktown Brothers for Life. Witness A told Mr Amiri that the bag was with a third party who was refusing to return the bag unless he received money. This was a ruse because, by that time, the bag was in the possession of the police. The aim appeared to be to entrap Mr Amiri and to obtain evidence of the Qaumi brothers ownership or association with the bag and the items contained therein.

The sequence of calls that are now to be played are calls between other people, including Mr Amiri, in relation to the same subject matter. A number of the calls do not involve any of the accused men. Some do. Mr Amiri will not be called to give evidence. For the most part, the parties are in agreement as to which calls should be played. As I understand, the joint position of the parties, is that the evidence is relevant to establish a connection between the three accused and the bag. In particular, the evidence constitutes an exception to the hearsay rule because (on the prosecution case), the representations contained within the calls were made in furtherance of a common purpose that the person had with the accused or one or more person including the accused: see ss 81 and 87 of the Evidence Act 1995 (NSW). The evidence may also be admissible on other bases but, one way or another, the parties are in agreement that the evidence is admissible.

The first call subject of the objection is a call between Masieh Amiri and Mumtaz Qaumi at around 1pm on 8 January 2014. [1] Objection was taken to the italicised parts of the following passage:

While that passage may be admissible against Mumtaz Qaumi, it contains inadmissible hearsay against Farhad Qaumi. The italicised passage is not a representation in furtherance of the common purpose. Rather, it is a “narrative statement of account of some past event”: see Landini v New South Wales [2007] NSWSC 259 (Hall J) at [25]. It may be that other parts of the passage are similarly objectionable but, in the course of argument, the objection was refined to the italicised portion. I ruled that it was not admissible.

The second call was between Mr Amiri and another member of the Blacktown Brothers for Life, Harris Sadat. It occurred on 8 January 2014. Objection was taken to the following passage:

Neither participant in the call is to give evidence. Again, this is a narrative of past events rather than an act done in furtherance of a common purpose.

In both instances, the evidence had the capacity to establish controversial propositions of fact against Farhad Qaumi through hearsay evidence that is not properly the subject of any recognised or statutory exception to the hearsay evidence. Accordingly, the evidence was excluded.