Objection is taken by the accused Farhad Qaumi (and in so far as it touches upon him, Mumtaz Qaumi) to evidence which the prosecution intends to adduce from eight of the informant witnesses. I will refer to those witnesses by the letters that were allocated to them earlier in the voir dire. [1] The particular witnesses are those known as A, B, C, D, G, I, K and L. It is anticipated that each of those witnesses will give evidence concerning their fear of Farhad Qaumi and his use of intimidation and threats to exercise control over the other members of the Brothers for Life at Blacktown (Blacktown BFL). The accused does not object to such evidence per se but does raise objection in relation to specific items of evidence that suggest that he (Farhad Qaumi) was involved in three previous killings.
To understand the context in which this objection is taken, the summary of facts, charges and evidence undertaken in earlier judgments should be incorporated into these reasons. [2]
The evidence as it is presented in the statements and interviews of the witnesses [3] take various forms. In some instances the evidence is to the effect that Farhad Qaumi was in fact involved in, or responsible for, three previous murders. For example, witness A states (as a fact) (at Q1188) that "he's got away with murder". Similarly, witness D said (at Q254) "he or his brother already killed three people." There are other examples of statements by witnesses which assert as a fact that the accused Farhad Qaumi was involved in three previous homicides and had successfully avoided conviction in relation to those earlier killings. In other cases the witnesses assert a belief that Farhad Qaumi was responsible for three earlier killings. For example witness C said (at Q1073) "cause I believe he's killed three people before and I think he wouldn't hesitate to do it again."
The learned Crown prosecutor indicated in the course of argument that he does not propose to lead evidence in that form and does not seek, by this evidence, to establish that Farhad Qaumi had in fact previously killed three people.
Rather, it is proposed to lead evidence of things that Farhad Qaumi said to the other members of the Brothers for Life at Blacktown about the earlier killings in order to instil fear and intimidation. For example, when asked if they had seen Farhad Qaumi use violence against any other person, witness A said (at Q332):
"Yeah, and I know because of, in the media and his reputation and he'd told us himself, at meetings he'd show us, on the Internet, on Google like that he'd beaten three murder charges and show us pictures of dead people that he'd killed."
Witness B said (at paragraph 9 of a statement of 30 September 2015) that
"Farhad Qaumi used to boast about all the knee cappings he had done and the three murders that he had gotten off. Two of the murders he told us he had gotten off on self-defence and the other one he told us he had chopped some Turkish guy up and buried him under the house."
The Crown submits that the evidence is relevant in that it provides the context in which a number of the informant witnesses simply obeyed orders and directions given to them by Farhad Qaumi and by his brothers. Without evidence of the intimidation and fear instilled by Farhad Qaumi, a jury would find it difficult to accept the evidence of the witnesses and to understand the willingness of the other members to follow orders to shoot and kill people. I accept that the evidence is relevant to the proceedings in this way. I do not understand the accused to contend that the evidence is not relevant. Rather, the accused argues that the probative value of the evidence is outweighed by the danger of unfair prejudice.
It appears to be common ground between the parties (although there is no specific evidence of this) that Farhad Qaumi was previously been tried for and acquitted in relation to two counts of murder. From what I have been told, he was acquitted in a jury trial having raised a defence of self-defence. The details of the other alleged killing are sketchier but it appears that he was at some stage charged with a third murder offence in relation to which the prosecution ultimately did not proceed.
Other material received in the course of the pre-trial hearings (on different issues) shows that there have been a number of media reports concerning the earlier allegations of murder against Farhad Qaumi. [4]
As I said, the Crown does not intend that such evidence be admitted to establish that Farhad Qaumi was involved in earlier killings. Nor is it said that any previous killings are admissible to establish a tendency to be violent, to use weapons or to commit murder. Rather, the prosecution seeks to rely on the evidence to establish that by boasting about his previous violent conduct and establishing a fearsome reputation, Farhad Qaumi was able to intimidate and instil fear in the other members of the BFL Blacktown. In this way, he was able to have them carry out his orders and directions.
Mr Stratton SC on behalf of Farhad Qaumi and Mr Young SC on behalf of his co-accused brother (Mumtaz) submitted that any probative value that the evidence has is relatively slight when account is taken of all of the other evidence in the case and that the unfair prejudice of leading evidence suggesting that Farhad Qaumi was responsible for three previous homicides could not be overcome by direction. Rather, the evidence would simply overwhelm a jury and distract it from its task of considering the particular charges in a dispassionate way. In other words, the defence makes a submission under s 137 of the Evidence Act 1995 (NSW) that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. Insofar as the Crown would seek to rely on the evidence as tendency evidence, consideration must also be given to the provisions of s 97 and 101.
I accept the submissions made on behalf of the accused. I have been provided with a working document (Exhibit EE) in which there is recorded a "list of incidents relied upon as background, context, relationship and tendency". Included in that document is a paragraph entitled:
"4. Assaults/threats on members or observed by members on other people."
Under this heading, there are some 18 dot points detailing evidence of incidents (or kinds of incident) in which intimidation of members of the BFL Blacktown by threats and violence was employed by the leaders of the group. These points include a number of areas that are not subject to objection (at least on the part of Farhad Qaumi). These areas not subject to objection include, adopting the shorthand in the document:
1. The assault of a member who refused to involve himself in a drug run.
2. The assault of a member who indicated that he no longer wished to stay with the group including a threat that he might be shot and the suggestion that he must choose whether he was to be shot in the right or left leg.
3. The bashing of a member (including threats with a gun) in response to the member doing an "unauthorised drug run".
4. Threats of shootings if a member failed to pay the $50 weekly membership fee.
5. The pulling of a gun on witness B and being required to indicate which leg he wanted to have shot.
6. An assault on witness I for refusing to be involved in the murder of Mohammed Hamzy.
7. The bashing of the brother of witnesses G and I for "disrespecting [Farhad and Jamil Qaumi] in front of their wives."
8. An order that witness C be bashed for failing to answer his phone.
9. An assault of witness C by Farhad Qaumi during which the witness was struck in the head with a dumbbell. This occurred because witness C failed to arrange finance for a car.
10. Threats of violence if a person should leave the Brothers for Life.
11. The bashing of Masieh Amiri by Farhad Qaumi because of a failure to obtain a gun.
12. Farhad Qaumi telling members that former member Mustafa Shanasa had "gone out with a bang" and would not be returning to the group. [I a note that this is a peripheral detail of offences originally charged in counts 12 and 13 of the indictment and which have been severed.]
There are multiple witnesses to each of these incidents. The nature and extent of this body of evidence is such that a jury will readily understand the prosecution case on this issue. In conjunction with the evidence pertaining to the counts on the indictment - which includes evidence that witnesses were threatened if they failed to obey directions - the jury will appreciate that the Crown case is that the witnesses acted as a result of fear and intimidation instilled by the use of violence and threats of violence. I accept that the evidence that Farhad Qaumi boasted of being involved in three earlier killings would increase the impact of this evidence, but the extent to which it would do so, given the volume of the other evidence is not as great as if it were the only evidence of Farhad instilling fear in the other members.
The learned Crown Prosecutor fairly and correctly accepted that a proper assessment of the probative value of the impugned evidence involved necessarily a consideration of the other evidence going to the fact in issue to which that evidence is specifically directed. Having undertaken that evaluation, I accept the submission made by Mr Stratton SC that the probative value of the evidence is such that it is outweighed by the danger of unfair prejudice to Farhad Qaumi (and also his brothers Mumtaz and Jamil).
The risk of unfair prejudice is obvious and may be stated with brevity. A jury confronted with the body of evidence upon which the Crown seeks to rely would inevitably speculate as to whether Farhad Qaumi was in fact guilty of three previous killings. It might be tempted to disobey directions in relation to conducting internet research. If it did disobey such directions, it would inevitably find reference in the electronic media to the earlier killings. But even assuming that the jury obeyed such directions, the evidence to be led would lead the jury to wonder whether or not Farhad Qaumi had committed the killings of which he boasted and whether such evidence was being hidden from it for some reason. There is a distinct likelihood that a direction as to the limited use that could be made of the evidence, and an exhortation that the jury not speculate on whether Farhad Qaumi had been involved in the earlier incidents, would fall on deaf ears.
Farhad Qaumi would be confronted with an impossible forensic election involving two bad choices. He could elect not to respond to the evidence and to trust that the jury would use the evidence in the limited way that the Crown proposes and obey directions that it should ignore the possibility that the accused had previously been responsible for the deaths of three people. Putting aside the obvious prejudice in this, there would also be unfairness in the fact that the jury would not be told that he was, in fact, acquitted in respect of two of the killings and that the prosecution had insufficient evidence to justify putting him to trial on the third. The other bad choice would be to re-litigate those offences for which he had already been acquitted or to rely on the outcomes of the earlier prosecutions. This would involve bringing to the jury's attention the fact that he was in fact involved in three earlier killings.
In my view, these matters give rise to the "danger of unfair prejudice" for the purpose of s137. The question is whether that danger outweighs the probative value of the evidence. In many cases, prejudice such as this can be cured by direction. However, the evidence in this case is of such a nature that I am unable to contemplate a direction that would overcome the unfair prejudice to the accused.
Having conducted the balancing exercise required by s 137, and noting the assessment of the probative value that I have made, I am left in no doubt that the section requires the evidence to be excluded.
[2]
Rulings
As I said in the course of argument, and following observations by counsel for some of the co-accused as to whether the other evidence of threats and violence to club members would be objected to in their cases, if it transpires that my understanding of the admissible evidence of other acts of violence and intimidation is incorrect in a significant way, it will be open to the Crown to re-ventilate the question of the admissibility of this evidence.
Also, Senior Counsel then appearing for the co-accused Kalal indicated that there may be an attempt to adduce some of this evidence in Kalal's case through the cross-examination of witnesses A, D and I. This would not be "in respect of proving the content of the conversation but rather the fact that it was said as a mechanism for dominance and fear and duress". [5] Mr Kalal is now represented by different counsel and whether she takes the same approach is not yet known. In any event, the present ruling does not preclude an attempt by Mr Kalal to adduce this evidence in his case. I would expect before doing so, the lawyers for Mr Qaumi would be advised so that any argument might take place in the absence of the jury.
Subject to the provisos in the last two paragraphs, and for the reasons set out above, I rule that the evidence is not admissible.
[3]
Endnotes
R v Qaumi (suppression and non-publication) [2015] NSWSC 1711.
R v Qaumi (No 3) (Severance and separate trials) [2016] NSWSC 15.
Tab 4 of Exhibit CC.
See for example MFI 9 (Application for non-publication and "take down" orders by Jamil Qaumi) and MFI 42 (notice of motion and affidavit in support of application for Judge alone trial by Farhad Qaumi).
Transcript p 907
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Decision last updated: 23 April 2018