R v Qaumi & Ors (No 46) [2016] NSWSC 938 (19 July 2016)

Last Updated: 30 November 2016

Supreme Court New South Wales

Case Name:	R v Qaumi & Ors (No 46)
Medium Neutral Citation:	[2016] NSWSC 938
Hearing Date(s):	19 July 2016
Date of Orders:	19 July 2016
Decision Date:	19 July 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Subject to the deletion of one word from one of the medical certificates, the evidence is admissible.
Catchwords:	CRIMINAL LAW – objection to evidence – evidence of increased lead levels in victim’s blood – expert evidence that lead levels caused by shotgun pellets lodged in body of the victims – whether evidence speculative or reasoning circular – whether improper assumptions made - risk of infertility from lead toxicity – whether unfairly prejudicial – extent of probative value to issue of whether injuries constituted grievous bodily harm – gender balance of jury – high probative value – evidence allowed
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammed Zarshoy Mohammed Kalal
Representation:	Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) N Carroll(J Quami) R Driels (Zarshoy) G Clarke (Kalal) Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (Kalal)
File Number(s):	Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication Restriction:	No publication until the conclusion of the trial.

JUDGMENT

1. On the sixty ninth day of the trial, counsel for the accused, Mohammed Kalal objected to part of the evidence to be led from two doctors (Dr Collins and Dr Gunja) concerning the injuries and disabilities sustained by the victim (H)^[1] of a shooting incident that gives rise to count 9 on the indictment. I ruled that the evidence of Dr Collins was not admissible but that the evidence of Dr Gunja was admissible. These are my reasons for those rulings.
2. There is no dispute that on 4 November 2013 H received wounds from at least one gunshot and that, as a result, a large number of shotgun pellets were lodged in her body. While some of the pellets were removed surgically many remained (and remain) in her body. The evidence to which objection was taken concerned opinions given by the doctors that the pellets contained lead and evidence by Dr Gunja as to the medical consequences of that fact.
3. In the case of Dr Collins, the issue was straightforward. His certificate merely stated that H “was known to have lead pellets behind L5”. There was no evidence as to the basis of his opinion that the pellets were lead and no evidence that he had expertise sufficient for him to proffer that opinion. Accordingly, I ruled that the reference to “lead” should be removed. There was no further objection to his certificate and the certificate was admitted in its edited form.
4. The evidence of Dr Gunja was more complex. He had expertise in forensic toxicology and his evidence was based on that expertise. There was objection to two parts of his statement. The first concerned his opinion that H had elevated lead levels caused by the shotgun pellets that remained in her body. The relevant part of his certificate was as follows:

“6. H was referred to me for review as the many embedded pellets from the incident contained lead and were slowly leaching out lead particulars. Although many of the pellets had been removed during surgery, there still appeared a few hundred pellets on imaging studies. H also stated that small metallic pieces exfoliate from her skin on regular basis.
7. H has an elevated blood lead level (BLL) from the residential pellets. This has caused a chronic low-level lead toxicity, which is likely to continue for many years, if not for the rest of her life. The lead in her blood redistributes and deposits in other tissues such as bone and joints. Though H does not have any overt signs of severe lead toxicity, the lead deposition is likely to have an increasing contribution to her chronic pain in bones and joints.
8. H’s lead and haemoglobin (Hb) levels over time are shown in the table below:

Date	Nov 2013	Jan 2014	Aug 2014	Jan 2015	Apr 2014	Apr 2015	Feb 2016
BLL (µg/dL)	19.5	27.1	16	24	17.6	22.2	26.3
Hb (g/L)	97	-	-	143	129	-	137

9. Though these lead levels have fluctuated between 15-30 ug/dl, they are below the threshold for active treatment with chelation. As H has ongoing lead exposure, chelation is likely to only lower BBL transiently and unlikely to have any measurable benefit on her long-term prognosis. H’s toxicological treatment involves vitamin and iron supplementation and monitoring of her BLL and haemoglobin.”

5. Initially I was inclined to accept the submission that the evidence asserting that the pellets were lead involved circular reasoning. That is, the doctor made an assumption (or had been told) that the pellets were lead and had therefore concluded that the elevated lead levels were the result of the pellets. That finding, in turn, led to a conclusion that the pellets were made of lead in spite of the fact that the evidence of that fact was not clear. The pellets had not been tested and a police officer with some relevant expertise had conceded that not all shotgun pellets were made of lead and that manufacturers were trying to phase out the use of lead in the construction of shotgun pellets.^[2] At that stage there was no evidence of the significance of the elevated lead levels, no evidence of other possible explanations for those levels and no evidence that other causes or explanations had been, or could be, excluded.
6. Having heard my preliminary view, the Crown sought to examine Dr Gunja on the voir dire. He was also cross-examined. Having heard his evidence on the voir dire I was satisfied that the evidence was admissible.
7. Dr Gunja gave evidence that a “normal” lead level in the body is zero although people sometimes have readings of up to 5 (micrograms per decilitre) without causing concern. H’s readings since the shooting were 19.5, 27.1, 16, 24, 17.6 and 137. Levels between 10 and 40 are considered to be elevated to a moderate degree. Levels above 40 are considered high and above 100 are considered to be very high and create risk of serious toxicity and death. Other explanations for elevated lead levels included eating food cooked in very old saucepans made of lead, breathing lead in the atmosphere (eg from leaded petrol or nearby mines), certain alternative medicines and swallowing a foreign object made of lead (eg a fishing sinker). Apart from the pellets embedded in H’s body, there was no other explanation for the elevated lead levels in this particular patient.
8. He denied the proposition that that he had made an assumption that the elevated lead levels were caused by the pellets. He said that when he sees a patient with lead toxicity he makes “a thorough assessment about potential sources of lead” and did so in H’s case. He questioned her and her family and was unable to find any other sources of lead. He accepted that he had not tested the pellets himself. He had studies scans and x-rays and identified no other sources such as a lead foreign body in her stomach.
9. He said “in the absence of other sources and a gunshot pattern that is very similar to other cases of lead toxicity from these type of injuries, it would be the most obvious source of the lead”.
10. I was satisfied that the witness was qualified to provide the opinion that the elevated lead levels were connected with the pellets remaining in H’s body and that his opinion was based on his experience and qualifications and not on an assumption as to the source of the lead or the constituents of the pellets. I was satisfied that the reasoning was not circular or self-fulfilling.
11. In reaching that conclusion I took into account the police officer’s evidence, referred to in passing above at [5] included the following:

“Q. Okay. And again just using your expertise and knowledge if you wouldn't mind, for many years now the shot inside a shotgun cartridge, for environmental reasons if no other, is often no longer lead, is that right?
A. The majority is still lead but they have other alternatives such as steel.
Q. Tungsten?
A. Tungsten, other
Q. Bismuth, is it called that, a naturally occurring metal, b i s m u t h?
A. I am not familiar with that one.
Q. But certainly lead is on the way out?
A. They are trying to move away from lead projectiles”.

12. I accept that this evidence is imprecise and that it is not clear what “the majority still is” really means. I accept that the best method of determining whether the pellets were made of lead would have been to have some of them tested. However, these facts do not diminish the cogency of Dr Gunja’s evidence or undermine his expertise and capacity to offer the opinions contained in paragraphs 6-9 of his certificate.
13. Accordingly, I ruled that paragraphs 6-9 of the report were admissible.
14. A further and different objection was taken to paragraph 10 of the certificate which was in the following terms:

“10. There is no current evidence of renal, cardiac or liver toxicity from her persistently elevated lead levels. In future, her chronic lead toxicity may lead to hypertension, iron deficiency anaemia, neurocognitive impairment, renal disease and infertility. There is significant concern for the ability of H to bear children and the risk of neuroplumbism in any potential offspring. If she were to fall pregnant, there is an increased risk of impaired neurodevelopment to the growing foetus, particularly when material BLL is above 5 µg/dL. This could lead to cognitive or other neurological impairment after birth.”

15. It was submitted that this evidence was emotive and highly prejudicial. In view of the fact that none of the accused dispute that the injuries suffered by H constitute grievous bodily harm, the probative value of the evidence was outweighed by the danger of unfair prejudice: s 137 of the Evidence Act 1995 (NSW). It was further submitted that the concerns and risks expressed in paragraph 10 were speculative and may never manifest themselves. Accordingly, the evidence may be misleading: s 135 of the Evidence Act.
16. Dr Gunja accepted that it was possible that H might fall pregnant and that she may give birth to a normal healthy child. However, he said that if she became pregnant, it was “almost certain” that the foetus would be exposed to lead. When it was put to him that “this may happen or it may not happen, we simply do not know” he replied:

“No. What I mean by that paragraph is that there is an increased risk if her lead levels stay above 5, which they are likely to for the rest of her life. There is an increased risk. It is not that there isn’t an increased risk or there is one. There definitely is an increased risk. Whether something happens or not is another question. Here I am talking about risk.”

17. He accepted it was possible that H could fall pregnant and have a healthy baby but said “I don’t know if it’s a reasonable scenario”.
18. I formed the view that the risk of infertility and complications for the issue of any pregnancy was a matter that was highly probative of the question whether the injuries sustained by H constituted grievous bodily harm. While I accept that defence counsel do not intend to dispute this element of count 9, the Crown is entitled to establish that element of the offence. I did not accept that the evidence was misleading or likely to be misused in any way.
19. Reliance was placed on the gender balance of the jury which includes a number of young women. Around half of the members of the jury (currently of 14) are women. I did not accept that the nature of risk around fertility and childbirth would create a risk of unfair prejudice or that the make-up of the jury increased the risk of unfair prejudice.
20. For those reasons, I also allowed the Crown to lead the evidence in paragraph 10 of the doctor’s certificate.

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^[1] H is a child.
^[2] T 1287.