At the close of the prosecution case Farhad Qaumi and Mumtaz Qaumi submitted that the jury should be directed to return a verdict of not guilty in respect of count 18 which is in the following terms:
"On or about 29 November 2013, at Greenacre in the State of New South Wales, did, in the course of an organised criminal activity, fire a firearm at a dwelling house or other building with reckless disregard for the safety of others."
The trial involves five accused charged, in various combinations, with a total of 24 offences and has been proceeding for well in excess of four months. There have been several other applications for directed verdicts and judgments in respect of each have been published at the same time as this judgment: R v Qaumi & Ors (No 57) [2016] NSWSC 1157; R v Qaumi & Ors (No 59) [2016] NSWSC 1159 and R v Qaumi & Ors (No 60) [2016] NSWSC 1160.
In respect of count 18, the case against both accused is that they directed two other people (Witness L and Witness M) to carry out a "drive-by" shooting at the residential premises of the mother of a rival gang leader. Those premises were located at 142-150 Greenacre Road, Greenacre. This is a complex consisting of a number of townhouses situated on either side of an elongated U-shaped driveway on the southern side of Greenacre Road. The case against each accused consists largely of the evidence of Witnesses L and M. Evidence was also given by a number of people who were in the vicinity of the shooting and a body of physical evidence consisting of plans, photographs and ballistics material.
The background to the Greenacre shooting is that Farhad Qaumi was the leader of a criminal gang known as the Blacktown Chapter of the Brothers for Life (BFL Blacktown). Mumtaz Qaumi was the second in charge of that organisation. A man called Mohammad Hamzy (also known as Little Crazy) was the leader of the Bankstown Chapter of the Brothers for Life (BFL Bankstown). In late October 2013, information came to Farhad and Mumtaz Qaumi that Mohammad Hamzy had taken out a contract on the life of Farhad Qaumi. This information came from a person known as Witness M. Further, it is the prosecution case that Farhad Qaumi wanted to take over the "turf" controlled by BFL Bankstown for the purpose of expanding his criminal empire.
There is a dispute in the trial as to the motive for what followed but it is common ground that on 29 October 2013, at the direction of Farhad Qaumi, Witness M and three members of the BFL Blacktown went to the home of Mohammad Hamzy and attempted to murder him. In the course of that bungled enterprise, Mahmoud Hamzy was killed and Omar Ajaj was injured while Mohammad Hamzy escaped without injury. There are a number of charges on the indictment arising out of that event (counts 1-3).
There followed a series of other shootings directed at the membership of the BFL Bankstown. This included the attempted murder of Michael Odisho on 3 November 2013 (counts 4-6), the attempted murder of Masood Zakaria on 4 November 2013 (counts 7-9) and a shooting in the vicinity of the Chokolatta Café in Bankstown on 7 November 2013 (counts 10-16).
After that series of shootings, a former member or associate of the BFL Blacktown, a man called Sina Mirzaei, was a target in a shooting allegedly perpetrated by the BFL Bankstown. The prosecution case is that the shooting at Greenacre on 29 November 2013 was in retaliation to the shooting of Sina Mirzaei.
The critical evidence in the present application comes from Witness L and Witness M. Witness L was a member of the Brothers for Life Blacktown and was involved in the original attempted murder of Mohammad Hamzy at Revesby Heights in October 2013. Witness M is a woman who had connections to both sides of what appears to have been an intense, if brief, gangland war. She had connections to the Hamzy family going back many years when she was involved in a relationship with the original founder of the Brothers for Life organisation, a notorious criminal called Bassam Hamzy. Mohammed Hamzy is Bassam Hamzy's nephew.
As at 2013, Witness M remained in contact with the Hamzy family and knew a number of members of the BFL Bankstown. Through those connections she came to know the Qaumi brothers and a number of members of the BFL Blacktown. There is some suggestion, of no present relevance, that she had a romantic involvement with Farhad Qaumi. Witness M knew the residential addresses of many relevant people and was, on both the prosecution and defence cases, instrumental in a number of the shootings that took place between October and late November 2013. She drove the shooters to Revesby Heights on the night of the Hamzy murder. She was involved in a reconnaissance of the Chokolatta Café on the night of that shooting. She also drove Witness L to the townhouse complex on Greenacre Road because she knew where Mohammed Hamzy's mother lived.
There is no dispute that Witness L discharged a firearm several times while in the vicinity of the Unit complex at 142-150 Greenacre Road. Several witnesses gave evidence of this and there was bullet damage to a garage at Unit 28 and to a car outside of Unit 29. Anthony Elkadi was struck by a bullet while standing outside of Unit 29 and blood was located outside Unit 28. Several fired cartridges were found in the area and ballistics examination determined that these were from a .45 calibre weapon that was also used in the Hamzy shooting.
Mrs Hamzy lived in Unit 18. There is no evidence that her premises were fired upon or struck by any bullets.
To put the current application in its simplest form, the accused submit that the crime or criminal enterprise that the Crown alleges was procured or directed by the two accused charged in count 18 was never completed. Rather, having arrived at the scene, Witness L decided that he would not shoot at Mrs Hamzy's house as directed by the accused. Then, at Witness M's instigation and urging he carried out a different shooting, that is, the shooting of Mr Elkadi. Accordingly, it is submitted, that the crime that is charged in count 18 and in relation to which Farhad and Mumtaz Qaumi were alleged to be principals in the third degree (or accessories before the fact), was never completed. The crime that was completed was a different crime and not one in relation to which the Qaumi brothers have any criminal liability either as accessories or by application of the principles of common purpose or joint criminal enterprise.
To understand those submissions it is necessary to consider in a little more detail the evidence that Witnesses M and L gave in the trial.
Witness M gave evidence of a meeting at a park in Villawood with "Mumtaz, Witness L and Farhad" on 29 November 2013:
"Farhad was very angry, he was screaming because Sina Mirzaei's house got shot and --
Q. Is this something he's saying?
A. Yes, this is what he's telling me.
Q. Doing your best --
A. Yes.
Q. -- what was said by Farhad?
A. Farhad told me that Sina Mirzaei's house got shot and that he thought it was from - like LC's crew because they - he thought that they, he said that he thought that they would have thought that because Witness I and Witness G, that Sina was also linked to Farhad, so they were retaliating. And that even though he hated Sina, he had to - he's not gonna let anyone laugh at him and he needed to retaliate.
Q. Was anything else said?
A. He said he's gonna shoot at - he wants [Witness L] to shoot at LC's mum's house.
Q. So who said that?
A. Farhad.
Q. Was there further conversation?
A. He said that he only had to shoot at the house, like to send a message, and he asked me where the mum lives.
Q. Who asked you that?
A. Farhad. I can't remember what I said to him but he told me, 'Don't fucking lie, you've been there heaps of times.' And he told me that I'm gonna drive [Witness L] to do it.
Q. Did you know at the time? Did you know where Mohammed Hamzy's mother lived?
A. Yes.
Q. And had you been to that location?
A. Yes, plenty of times.
Q. Whereabouts was that?
A. Greenacre.
Q. What happened?
A. He went and got a - Farhad went and got a gun. He came back five minutes later and handed it to [Witness L]. It was wrapped in something. When [Witness L] looked at it, he said that it's the same gun that was used in the murder and that he didn't want to get pulled over with it. Farhad said that he didn't give a fuck and stop making excuses, he has to do it. I can't remember. Then we left I think." [1]
Witness L and Witness M then travelled by car to Greenacre. Her evidence continued:
"Q. What happened when you got to that area?
A. When we got there we stopped at the - like, the top of the driveway because it was - his mum lives in like a complex so there's all houses going down the driveway.
Q. So you're saying 'his mum', whose mum?
A. LC's mum. [Witness L] jumped out of the car and went down and had a look. I could see all lights on. He came back and he said that there's too many people down there so we went and we parked somewhere for like half an hour. Me and [Witness L] discussed not doing it but [Witness L] had told him that Farhad had threatened him and his family and Farhad had also threatened me and my family, so. And then [Witness L] said, 'Look, we can't wait any longer, we're taking too long, Farhad's gonna get angry'. So we drove back again. I stopped on the main road at the top of the driveway. [Witness L] ran down. And I heard gunshots and then he ran back and jumped in the car and we drove back to Farhad and Mumtaz in Villawood.
Q. When you say to Villawood, was it to the same location --
A. Yes.
Q. -- you came back from? What happened when you got back to Villawood?
A. Farhad took the gun and went somewhere and put it wherever it came from and they said to meet them at Blacktown at this dead end where they always used to meet." [2]
Witness L's evidence was somewhat different. He said that there was a meeting at his house in Penrith with Farhad and Mumtaz Qaumi and gave the following version of events:
"Q. Just go through that again?
A. He's calling me saying, 'Hey, how are you?', stuff like that. Then he goes to me, 'What's your address? I want to come see you.' I gave him my address. I don't know whether I text him or verbally told him, I don't know, I got my missus to do it, then they came.
Q. Who came?
A. Mumtaz and Farhad.
Q. When you say they came, is that to the address you gave?
A. Yes, came to the address I gave them.
Q. So they came to your house, is that right?
A. Yes.
Q. And this is this new address?
A. Yes.
Q. What happened when they arrived at your house?
A. So basically they ask me, 'Have you watched the news?'. I told them, 'No, what happened?' Goes, '….got shot last night'. So I goes to him, 'No, I didn't know'. He goes to me, 'You have to retaliate about that.'
Q. Is that Witness G?
A. Yeah, Witness G, Witness I's …., Sina Mirzaei got shot.
Q. Did you know about it?
A. I didn't know until they told me.
Q. Who was it that said that to you, 'Have you watched the news?'
A. Farhad.
Q. Was it him that told you that Witness G's… got shot last night?
A. Yep.
Q. Who was it that said, 'You've got to retaliate'?
A. Farhad.
Q. Was anything else said?
A. Then after that I told him, 'What do you care Farhad? Witness G and Witness I's locked up. What do you care?'. He goes, 'Nah, nah, nah, I want to do it for Witness G'. I go to him, 'They're locked up, what do you care?' He goes, 'You know what, fuck this, the hairy cunt, I was using him anyway'. He goes, '…had an argument with LC inside the prison so you have to retaliate because of that'.
Q. When he said, 'I want to do it for…'‑‑
A. Yes.
Q. ‑‑who did you understand that to be?
A. Witness G.
Q. Witness G?
A. Yes.
Q. At that time you said Farhad is speaking to you, is that right?
A. Yes.
Q. Where is Mumtaz?
A. Next to him.
Q. What happened after Farhad said those things to you?
A. He goes, 'We have to retaliate', this, that. 'I was using him. You have to do it for…now'. He goes, 'You have to do it'. So I went inside and got changed. I came out, so after that I was wearing dark clothing. So I came outside, I jumped in their car, then we went next to my house. Like not racing but about 10 minutes' drive from my view, a little spot that they took us there. He took us there. Then he called Witness M to get there.
Q. Who called Witness M?
A. I don't know, Farhad or Mumtaz, one of them, they called Witness M to come there.
Q. You said he said that 'you have to do it' ‑‑
A. Yep.
Q. - 'for… now'. Was anything said about what he wanted you to do?
A. Basically want me to go shoot someone.
Q. Did you know who at that stage?
A. At that stage, no.
Q. You said there was a call to [Witness M], is that right?
A. Yes.
Q. This is where you're in a spot about 10 minutes' drive from your house?
A. Yes.
Q. Did you speak further with either Farhad or Mumtaz whilst at that location?
A. So as we waiting there, he goes to me ‑ as we're waiting for [Witness M] to get there, he goes, 'Go shoot LC's mum's house'.
Q. Who said that to you?
A. Farhad's telling me that. I go to him, 'But I don't want to shoot a girl, you know'. He goes, 'No, no, you have to do it'. I said, 'But I'm not gonna do it, I'm not gonna shoot the woman'. He goes, 'Okay then, do a drive‑by.'
Q. Who is telling you that?
A. Farhad.
Q. Anything else said?
A. By then [Witness M] came, so they ask her, 'Do you know where she lives and everything?'. She goes, 'Yes'.
Q. There is a conversation when [Witness M] arrived, is that right?
A. Yes.
Q. Who spoke to [Witness M]?
A. Farhad.
Q. What did Farhad say to [Witness M]?
A. 'Do you know where LC's mum lives?'. [Witness M] said, 'Yes'. He goes, 'We're gonna shoot LC's mum's house'. That's when we jumped in the car, we went to near Granville area, we were waiting in the park. So he's telling me what to do. Farhad's telling me now what to do." [3]
Witness L said that there was a further discussion at a park in Granville:
"Q. At that location, so what happened there?
A. Basically Farhad's telling me what to do now.
Q. What did he tell you?
A. He's telling me, as I said before, he goes, 'Go get his mum' again. I said, 'I don't want do the woman, I don't want to shoot the woman,' you know. Then [Witness M] said, 'LC's mum and sister, they live next to each other,' you know what I mean. Farhad goes to me, 'Okay, do the drive‑by on both their house then.' Then [Witness M] described the house, how's the house gonna go and everything. Goes, 'It's down the hill, all the way at the end, that's where they live.' Then that's when I went jumped in [Witness M]'s car." [4]
Witness L said that Farhad Qaumi gave him a gun that was wrapped in a tea towel [5] and gave the following evidence of what occurred when they arrived at Greenacre:
"Q. What happened?
A. So basically [Witness M] goes to me the last ‑ like, from the shoot, she goes, 'Last house on the right, second last is his sister, the last one is his mother.'
So I jumped out of the car, I started walking towards ‑ like there was a downhill sort of thing. I started walking towards there, I seen one of the neighbour's door open, they were eating dinner. So I turned around, I went back in the car. I told [Witness M], 'The door is open, there is people there. When I shot it, they can hear it. So let's go around come back.' So we went jumped in the car, she drove around.
I don't know how long after, we came back again. Then I seen about four boys standing at the front of, like on top of the houses, you know, they were standing at the front of the street.
Q. Standing at the front of the street?
A. Yes.
Q. Where were they in relation to the house?
A. They were at the top of the street. LC's mum's house is all the way down. So they were just standing out the front, there was about five of them standing out the front.
Q. Okay. What happened?
A. Then I told [Witness M], 'There's people there.' So we just waited around a bit more. Then [Witness M] goes to me, 'Why don't you get these people.' I go, 'Who's these people?' She goes, 'Some of them are from Bankstown and they are his cousins,' talking about LC. So that's when I jumped out of the car, I went towards them. I started shooting at them.
Q. What did those persons do?
A. Just obviously they start running.
Q. How many shots did you fire?
A. I emptied the gun.
Q. Sorry, you emptied the gun?
A. Yes.
Q. How many shots was that?
A. I wouldn't have a clue.
Q. How did you know the gun was emptied?
A. I think it might have been a 45. I'm not sure exactly what, 38 or 45. Cause if it was a 45, because the barrel sticks out. And‑‑
Q. When it's empty?
A. Yes. And when it's 38, when you click is nothing else will come out, you know. That's why I knew it was empty but I'm not sure which gun was it.
Q. But whatever gun it was, you‑‑
A. Emptied the clip.
Q. ‑‑knew the gun was empty?
A. Yes.
Q. What did you do then?
A. I ran back to Witness M's car, we drove off.
Q. Did you know if you hit any person?
A. At that time, no." [6]
Witness L was cross-examined by Senior Counsel for Farhad Qaumi as follows:
"Q. Did you and [Witness M] go together by car to Greenacre?
A. Yes.
Q. You looked into what you understood was a house occupied by relatives of LC, is that right, at Greenacre?
A. Yes.
Q. Did [Witness M] say to you, 'Why don't you get these guys, that's LC's cousin and his mates'?
A. Yes.
Q. Did [Witness M] say, 'Get them, just get them'?
A. Yes.
Q. Did you then start firing your gun at the house?
A. Not at the house.
Q. What did you fire your gun at?
A. People." [7]
He was also cross-examined by Senior Counsel for Mumtaz Qaumi:
"Q. And there was mention of there being a drive‑by then on both their places, is that right?
A. Yes.
Q. So is it the case that when you left that meeting where Farhad and Mumtaz had been, that the only arrangement that was in place at that stage was that the houses of both Little Crazy's mother and sister were going to be the potential targets, is that right?
A. Yes.
Q. When you got there in the car, you say that you got out of the car and walked down the driveway some distance where you saw an open door and you saw people eating, is that right?
A. Yes.
Q. You decided you weren't prepared to do any shooting in the circumstances and went back to the car, correct?
A. Yes.
Q. Whilst you're waiting you saw some people, I think you describe them about four or five boys standing out the front?
A. Yes.
Q. And that is up closer to the roadway from where you understood Little Crazy's mother to be, which was right down the back, is that right?
A. Yes.
Q. So at that stage you were simply planning on sitting in the car, is that right?
A. Yes.
Q. Is it [Witness M] that said to you at that stage, 'Why don't you get these people?'
A. That's correct.
Q. And you said, 'Who are these people' and [Witness M] said, 'Some are from Bankstown and they are his cousins.' They're [Witness M]'s words, is that right?
A. Yes.
Q. At that stage it was your intention to simply shoot at a house, is that right? Hold on. Up until she said that‑‑
A. Yes.
Q. ‑‑it had been your intention to simply shoot at a house?
A. Yes.
Q. And after she said those words, that's when you got out of the car‑‑
A. Yep.
Q. ‑‑and decided to take some shots at the group?
A. Yes."
Farhad and Mumtaz Qaumi submitted that this evidence demonstrates the following:
1. The agreed criminal venture settled upon by Farhad Qaumi, Mumtaz Qaumi and Witnesses L and M was to shoot at a particular house, that is, Mrs Hamzy's house. By the time that Witnesses L and M left for Greenacre, there was no understanding, agreement or joint venture that involved shooting at people.
2. That criminal venture was not completed. Witness L decided at the scene that he would not commit that crime.
3. At the scene, Witnesses L and M decided to commit a different crime, namely shooting at people identified by Witness L as being associated with Mohammed Hamzy.
Accordingly, it is submitted that there is no evidence capable of establishing the crime charged in count 18. Reliance was placed on the length of time (estimated by the witness to be around half an hour) between the decision not to complete the "drive by" shooting of Mrs Hamzy's townhouse and the distance between, or different location of, the townhouse that was actually struck (No 28) and the townhouse that was supposed to be the target of the shooting (No 18). There is no clear evidence of the distance between the two townhouses, but the evidence of police officers who attended the scene was that units 18-25 were on the eastern side of the driveway while units 26 to 30 were on the western side. [8] The evidence of Witness L was that unit 18 was the last townhouse from the end (that is, looking at a number of photographs tendered in evidence, furthest from Greenacre Road at the top of the "inverted U" that is the driveway to all of the townhouses). The same photographs suggest that unit 28 and 29 were much closer to Greenacre Road. [9]
Against those submissions are a number of factors:
1. The shooting took place in the same townhouse complex as that which was subject to the agreed criminal venture.
2. A dwelling house was in fact struck, albeit that Witness L said he was firing at people, rather than "at a dwelling house or other building".
3. Witness L would not have been in the vicinity with a gun had it not been for the directions he received from Farhad Qaumi. According to Witness M's account, his last words before committing the shooting were "we can't wait any longer, we're taking too long. Farhad's gonna get angry."
4. In three of the four earlier shootings, people other than the true targets were shot and received injuries. This was true of the Hamzy shooting, the Zakaria shooting and the Chokolatta Café shooting.
5. The particular townhouse is not nominated in count 18. At best, it is a particular of the charge.
In other judgments published today, I have referred to the fact that there are currently challenges before the High Court to the accepted Australian doctrine usually referred to as "extended joint criminal enterprise": see R v Qaumi &Ors (No 57) [2016] NSWSC 1157 at [28]. On the present application, as on the other no case submissions determined on this day, counsel has preserved their clients' position by challenging the correctness of the authorities currently binding upon me. However, it is agreed that I must apply the law as it stands. The doctrine is set out in other judgments but it is worth setting out again the following passages from McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 at 113-114:
"The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.
Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose."
Later at 117, the Court said:
"In Johns this Court was concerned with the common purpose of a joint criminal enterprise. In particular, it was concerned with whether the scope of the common purpose extended to possible as well as probable incidents of the venture. The scope of the common purpose is no different from the scope of the understanding or arrangement which constitutes the joint enterprise; they are merely different ways of referring to the same thing. Whatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement. That is why the majority in Johns in the passage which we have cited above spoke in terms of an act which was in the contemplation of both the secondary offender and the principal offender. There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no other relevant distinction. As Sir Robin Cooke observed, the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it."
The issue of whether there is a case to answer on count 18 is not an easy one to resolve. However, the question of whether the criminal venture agreed upon, or instigated by, Farhad and Mumtaz Qaumi had come to an end by the time the shooting actually took place is a question of fact. Likewise, it is a question of fact whether the shooting that Witness L actually carried out fell within the scope of the original enterprise, or was incidental to it, and whether the Qaumi brothers contemplated the possibility that Witness L might shoot at another townhouse within the same complex while targeting people in the vicinity Mrs Hamzy's home.
I have concluded that there is evidence capable of establishing those matters although I consider the case on this charge to be relatively unconvincing. However, I must take the Crown case at its highest and it has been held by the High Court in Doney v The Queen [1990] HCA 51; 171 CLR 207 at 214:
" … if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
Further, the Court of Criminal Appeal long ago rejected the proposition that a trial Judge could take a case away from a jury on the ground that a view was formed that a conviction based on the evidence would be unsafe or unsatisfactory - that is a question for a Court of Criminal Appeal if the jury convicts: R v R (1989) 18 NSWLR 74. Where a case is based on circumstantial evidence, it is for the jury (not the trial judge) to determine whether there is an inference inconsistent with the guilt of the accused: R v JMR (1991) 57 A Crim R 39.
On one view, the criminal enterprise in relation to Farhad Qaumi and Mumtaz Qaumi came to an end outside the premises at Greenacre when Witness L decided that he would not carry out a particular shooting. However, on another view, the shooting that was in fact carried out was carried out as a result of the directions given by Farhad Qaumi. In my view, it is for the jury to determine whether the criminal enterprise came to an end and whether a new enterprise undertaken by Witnesses L and M commenced. It would be open to the jury to be satisfied that the shooting carried out was within the scope of the joint criminal enterprise or at least an undertaking that was incidental to the original scope of the enterprise. As the Crown put it, in view of the history of innocent bystanders being shot in the course of the shootings that had preceded the Elkadi shooting, it is open to the jury to find that it was within the contemplation of Farhad Qaumi and Mumtaz Qaumi that somebody or some house other than the agreed upon target would be shot at by Witness L once he got to the scene.
For those reasons, the applications by Farhad Qaumi and Mumtaz Qaumi for a directed verdict of not guilty on count 18 are refused.
[2]
Endnotes
T 2274-2275.
T 2275-2276.
T 2848-2850.
T 2850.
T 2854.
T 2954-2856.
T 2979-2980.
T 911.
See Exhibits UU, 6As and 6Bs.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 November 2016