219 CLR 1
Johns v The Queen (1980) 143 CLR 108
McAuliffe v The Queen [1995] HCA 37
Source
Original judgment source is linked above.
Catchwords
168 A Crim R 174
Doney v The Queen [1990] HCA 51171 CLR 207
Gillard v The Queen [2003] HCA 64219 CLR 1
Johns v The Queen (1980) 143 CLR 108
McAuliffe v The Queen [1995] HCA 37
Judgment (2 paragraphs)
[1]
Judgment
On the 85th day of a jury trial, in which five accused men are charged with 24 offences, the prosecution closed its case. Four of the accused made applications that the jury be directed to return verdicts of not guilty in relation to some of the charges on the indictment. One of those applications was by the accused Farhad Qaumi who seeks a directed verdict of not guilty in relation to counts 10, 11, 12, 13, 14, 15 and 16. All of those charges arise as part of a single incident, which took place on 7 November 2013 outside of the Chokolatta Cafe in Bankstown.
The charges are in the following terms:
"FARHAD QAUMI and MUMTAZ QAUMI and JAMIL QAUMI
10. On or about 7 November 2013, at Bankstown and elsewhere, in the State of New South Wales, did solicit Mohammad Kalal and other known persons to murder Abdul Abu-Mahmoud.
FARHAD QAUMI and MUMTAZ QAUMI and JAMIL QAUMI and MOHAMMED KALAL
11. On or about 7 November 2013, at Bankstown, in the State of New South Wales, did shoot at Abdul ABU-MAHMOUD with intent to murder Abdul ABU-MAHMOUD.
(IN THE ALTERNATIVE to Count 11) that
12. On or about 7 November 2013, at Bankstown, in the State of New South Wales, did discharge a firearm with intent to cause grievous bodily harm to Abdul ABU-MAHMOUD.
FARHAD QAUMI and MUMTAZ QAUMI and JAMIL QAUMI and MOHAMMED KALAL
13. One or about 7 November 2013, at Bankstown, in the State of New South Wales, did shoot at Khalil KHALIL with intent to murder Khalil KHALIL.
(in the Alternative to count 13)
14. On or about 7 November 2013, at Bankstown, in the State of New South Wales, did discharge a firearm with intent to cause grievous bodily harm to Khalil KHALIL.
FARHAD QAUMI and MUMTAZ QAUMI and JAMIL QAUMI and MOHAMMAD KALAL
15. On or about 7 November 2013, at Bankstown, in the State of New South Wales, did shoot at Hassan Soueid with intent to murder Hassan Soueid.
(In the alternative to Count 15)
FARHAD QAUMI and MUMTAZ QAUMI and JAMIL QAUMI and MOHAMMAD KALAL
16. On or about 7 November 2013, at Bankstown, in the State of New South Wales, did discharge a firearm with intent to cause grievous bodily harm to Hassan Soueid."
It is the Crown case that the target of the shooting outside of the Chokolatta Cafe was the man named in counts 10, 11, and 12, that is, Abdul Abu-Mahmoud. He has been referred to throughout the trial by his nickname "Abs". He was shot when he was sitting in the passenger seat of a BMW motor vehicle. He was in the company of the other victims named in the indictment. Mr Khalil occupied the driver's seat while Mr Soueid was seated in the back seat of the vehicle. Mr Abu-Mahmoud and Mr Soueid suffered shotgun wounds while Mr Khalil escaped uninjured. There was damage caused to the BMW vehicle when it was struck by the projectiles of a shotgun and .38 calibre revolver.
The prosecution case is that the shooting was carried out by three members of a criminal gang known as the Brothers for Life Blacktown. Those men were the accused, Mohammed Kalal, and two prosecution witnesses known as Witness D and Witness I. The Crown case, which appears to be uncontested, is that Witness I drove the shooters to the vicinity of the shooting and parked his car in such a position that a BMW vehicle occupied by the three victims was unable to move from where it was parked. Witness D discharged a shotgun at or into the driver's side of the BMW while the accused Kalal fired a 0.38 calibre revolver from the passenger side of the vehicle. It appears that no injury was caused by the discharge of the revolver and the evidence suggests that the bullets from that gun struck the side of the BMW. The Crown case is that Mr Kalal, Witness D and Witness I acted with intent to kill the man Abs and, incidentally, the two men with him.
The case against Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi in respect of counts 10, 11 and 12 is that they either directed or organised the shooting or were part of a joint criminal enterprise which contemplated or encompassed the shooting. There is evidence that Mumtaz and Jamil Qaumi, along with another prosecution witness (Witness M), gave the three men who carried out the shootings directions and instructions as to who the target should be and how the murder should be carried out. This occurred a relatively short time before the shooting and there is evidence of an earlier reconnaissance where the target was identified.
In respect of the victim of counts 13 and 14 (Khalil Khalil) and counts 15 and 16 (Hassan Soueid) the Crown case is that the accused Mohammad Kalal (as principal in the first degree or principal in the second degree) and the accused Jamil Qaumi and Mumtaz Qaumi (as accessories before the fact) are guilty on the basis of the application of the principles often referred to as extended joint criminal enterprise or extended common purpose: see for example McAuliffe v The Queen [1995] HCA 37; 183 CLR 108, Gillard v The Queen [2003] HCA 64; 219 CLR 1 and Clayton v The Queen [2006] HCA 58; 168 A Crim R 174. In other words, in respect of Mohammed Kalal, Mumtaz Qaumi and Jamil Qaumi, the prosecution attempts to establish that in the course of carrying out an agreed criminal enterprise (that is, the murder of Abdul Abu-Mahmoud) the participants contemplated the possibility that other persons in the vicinity would also be killed or receive injuries constituting grievous bodily harm and that those injuries or deaths would arise as the result of the shooter (in this case, witness D) forming a murderous intention.
Mumtaz Qaumi, Jamil Qaumi and Mohammed Kalal made an application for directed verdicts in relation to counts 13 and 15 on the basis that there is no evidence that the participants had an intention to kill Khalil or Soueid. Those charges require proof of an intention to kill and proof that the participants in the joint criminal enterprise contemplated the possibility that the shooters would act with a murderous intention. Those applications were refused: see R v Qaumi & Ors (No 60) [2016] NSWSC 1160.
Senior Counsel for Farhad Qaumi contends that there is no case to answer in relation to any of the counts arising out of the Chokolatta Café shooting. It is common ground that the accused Farhad Qaumi was not in Australia at the time of the shooting at the Chokolatta Cafe. He was in Thailand. However, the prosecution case is that, before his departure, he gave directions to other members of the criminal gang to carry out a number of "public shootings" to advance the interest of the criminal group known as the Brothers for Life, Blacktown Chapter (BFL Blacktown). Farhad Qaumi contends that there is no evidence that he gave any such direction in respect of the target Abdul Abu-Mahmoud.
The prosecution accepts that there is no evidence that Farhad Qaumi gave any direction that the man Abdul Abu-Mahmoud should be targeted in the course of the spate of shootings in relation to which the present trial is concerned. However, it is submitted that he is criminally liable, or at least that there is a case to answer, based on the principals of (extended) joint criminal enterprise.
For present purposes the critical meetings as alleged by the prosecution occurred on 2-3 November 2013. The evidence of these meetings came from Witness L and Witness M. It is common ground that a large group of the BFL Blacktown met at the Sydney Casino on the evening of 2 November 2013. That was a day or so after the killing of Mahmoud Hamzy at Revesby Heights (count 1) and the wounding of Omar Ajaj (count 2). Those men were shot in the course of a failed attempt to murder the leader of a rival gang (the BFL Bankstown), Mohammed Hamzy. While at the casino, Farahd Qaumi spoke with two members of the BFL Bankstown. It is the prosecution case that the Revesby Heights shooting occurred in the context of some kind of "turf war" between the rival chapters and that the BFL Blacktown were attempting to take over some of the territory in which the BFL Bankstown was dealing in drugs and conducting other criminal activity. It is the defence case (or at least the case of Farhad, Mumtaz and Jamil Qaumi) that the cause of the conflict and the motivation for the shooting was the fact that Mohammed Hamzy had taken out a contract on the life of Farhad Qaumi. There seems to be little dispute, and at least it is the Crown case, that Farhad Qaumi was the self-appointed leader of the BFL Blacktown Chapter. In any event, the meeting at the casino followed that shooting.
There is a significant body of evidence that Farhad Qaumi and his brothers were concerned that the BFL Bankstown may seek to retaliate after the failed attempt to kill Mohammed Hamzy. This is alleged to be the motive for the shooting of Michael Odisho on 3 November 2013 (count 4-5) and a shooting at the home of Masood Zakaria on 4 November 2013 (counts 7-9). The targets of those shootings were members of the BFL Bankstown. However, Abdul Abu-Mahmoud was not a member of the BFL Bankstown although he had some association with that group.
After the meeting at the casino, the prosecution case is that a smaller group attended a park, possibly in the area of the Botanic Gardens or that part of the Domain adjacent to Mrs Macquarie's Chair. The evidence of Witness L is that in the course of this meeting Farhad Qaumi formulated a plan to embark on a series of shootings of persons associated with the Brothers for Life Bankstown. A number of people were specifically nominated. However, there is no evidence that Mr Abu-Mahmoud was not nominated as a target. Witness L's evidence on this subject was as follows:
"Q. What was said? If you could tell us who is talking?
A. Farhad's talking. Basically what he's saying, he goes to me, 'We have to retaliate before the Lebos gonna get us, we got to get them first'. That's why when he made the list about who we're going to get, he start mentioning names of persons we have to get before they gonna get us.
Q. Do you recall names that were said?
A. Yes.
Q. Who said them?
A. Farhad.
Q. What names did he say?
A. He wanted to get LC again but he was under the police custody after the time, I don't know, they put him in hotel or somewhere, but he wanted to still get him. Then he wanted to get LC's brother. He wanted to get Omar Ajaj again. He wanted to get Mikey.
Q. Who's Mikey?
A. Michael Odisho. Then Masood, I don't know, Zakaria, whatever his name is. Then he wanted to get Khaled Hamzy, this other bloke, I forget his name at the moment, he had the money. He goes, 'We have to get him too cause he's gonna put up the money for people to come get us'. That's roughly what I remember at the moment." [1]
It will be seen that there is no suggestion that Abdul Abu-Mahmoud was to be the target of the shooting.
The other relevant evidence comes from Witness M. She gave an account of a meeting that occurred in the days following the Hamzy shooting and before Farhad Qaumi's departure for Thailand:
"Q. You said Farhad had a conversation. What was said, if you could tell us who is talking?
A. Farhad told me that he was going overseas to Thailand, that he wanted to get off the radar because of what had just happened with the Hamzy murder and what was about to happen. He told me that he had formed three squads which had, I don't know how many people in each squad. He said he would put ‑ his first was the stronger squad, he was going to put them into play first and if something happened to them then he would use the second, then the third.
Q. Did he say anything about what these squads were going to do?
A. He had a list, like not a list, like a written down list, but he said that he wanted to get Michael Odisho, Mohammed Sanoussi, Abs, Masood Zakaria and LC's brothers.
Q. How many brothers does LC have?
A. Three.
Q. Sorry?
A. Three, three.
Q. Was there anything else said at this point?
A. He said ‑ he was talking to me about Abs. He said that he's ‑ at first he said Abs was on the list and then he changed his mind because he said that if he got Abs, then people would definitely know that it was him that was behind the Hamzy murder, because Abs wasn't, like, a proper part of them, he was like a proper part of LC and that. So‑‑
Q. You have got to do your best to tell us the words that were said by Farhad. What did he say?
A. Abs wasn't with them so that then they would suspect it was him and that Bas wouldn't be happy. He didn't want to upset Bas.
Q. Did you take that to be a reference to Bassam Hamzy?
A. Yes." [2]
Again, Mr Abu-Mahmoud was not nominated to be the target of any of the proposed shootings.
In terms of the events immediately preceding the shooting outside the Chokolatta café, Witness M gave evidence of meeting Jamil Qaumi at the Thornleigh McDonalds and then meeting with Mumtaz Qaumi, "maybe Jamil", Witness D and Witness I in a street parallel to the BP station at Rosehill. She gave the following evidence:
"Q. No, from when you met him, go through what the conversation was?
A. Mumtaz told me that he had heard that Abs has got his or Farhad's address on the Central Coast. I said to Mumtaz that wouldn't be hard considering Abs has got friends in real estate. And he said ‑ Mumtaz said that they're gonna shoot him, their gonna shoot Abs. He said that he was angry because he was left there to deal with all of this while Farhad was partying in Thailand.
…
Q. Okay. What happened after the conversation?
A. Then he told Witness I and Witness D and Jamil that ‑ sorry, he was telling them that they had to go to shoot Abs.
Q. Yes.
A. He was asking me what time the shop shut or what time he finishes work. I said I didn't know, it was late.
Q. Who asked you that?
A. Mumtaz. When he said that he ‑ they were gonna shoot Abs, I told him that Farhad didn't want him shot and he said, well, its different now because they've got the address. And then he was just trying to get ‑ they were trying to organise a screwdriver to change the number plates." [3]
Witness I also gave evidence about the meeting at "Rosehill Maccas":
"Q. So in this street a couple of streets away from the Maccas, who was present?
A. Mumtaz, Jamil, Witness M, me, Witness D, Kalal and Masood was sitting in the car.
Q. What happened when you were in this location with these people?
A. Well, Witness M was talking to Jamil and Mumtaz first. Me, Witness D were on the side.
Q. Right. So did you hear any of that conversation?
A. Not at the beginning but later on Witness M was saying ‑ I heard Witness M saying that Abs is getting everyone's address and we got to get Abs.
…
Q. What happened after that?
A. Mumtaz and Jamil ‑ Mumtaz told us, told me and Witness D that we have to get Abs. We didn't know how to get there or what to do so Witness M says she's gonna show us the shop or the way to get there. Jamil told me to call my friend, Rokhzayi, to get the guns ready. And I called him. We went to Bankstown, Witness M showed us the shop." [4]
Witness L gave evidence of a meeting that appears to have been on the night of the Chokolatta Café shooting:
"Q. What happened after you handed the gloves over?
A. I asked them, "What's going on?". They go, "We're getting ‑ we're getting Abs today. We're getting Abs".
Q. Who answered you, when you said‑‑
A. Mumtaz.
Q. What did Mumtaz say?
A. He goes, 'We're getting Abs today'.
Q. Did you know a person named Abs?
A. Yes.
Q. Who did you know that to be?
A. I met him once near the Bankstown area with Farhad.
Q. Was anything else said?
A. Basically they said, 'We're gonna get Abs tonight'. Then apparently he's given our ‑ he's talking, Mumtaz is saying, 'He's given our addresses from up there, from the coast to the Lebos'. He goes, 'We got to get them first'.
Q. He's giving out addresses up there, up the coast?
A. Yeah. Like, Farhad and Mumtaz's addresses.
Q. At that time, or as far as you know, did Farhad and Mumtaz live up‑‑
A. Yes.
Q. Out of Sydney, up the coast?
A. Yes.
Q. Had you been to their‑‑
A. Not inside the house but I been up the coast, yes.
Q. Anything else said to you?
A. I think that's about it. Then I said, 'Okay'. I think that's when I seen Witness I, I said hello to him and I left. I jumped back in my mate's car and took off. Q. Did you have any more involvement with any of the members‑‑
A. No.
Q. ‑‑that night?
A. No." [5]
Witness D's evidence of the meeting before the shooting was vague but included the following:
"Q. Whilst near this petrol pump place, do you recall any conversation? Anything said?
A. At that time?
Q. Yes?
A. No.
Q. You can't recall?
A. Yeah, I can't recall.
Q. How long did you stay there?
A. It was fair while until it got dark.
Q. Was there people talking whilst you were there?
A. Yeah, people were talking.
Q. Any recollection at all of anything said?
A. No, I don't remember.
Q. What happened then?
A. Then we ‑ I went in a car and me and Witness I went in a car and that guy, a guy got pointed at, then we had to shoot him." [6]
There is nothing in the evidence of events leading up to shooting outside the Chokolatta Café on 7 November 2013 to suggest that Farhad Qaumi ordered the shooting of Mr Abu-Mahmoud or was part of a criminal enterprise to commit that shooting. Witness M's evidence suggests that he had specifically ruled out Mr Abu-Mahmoud as a target.
The Chokolatta Cafe shooting was so poorly planned and executed that it was the beginning of the end of the Blacktown Chapter of the Brothers for Life. In its immediate aftermath, a number of the gang members were arrested and two guns used in the shooting (later connected with other criminal activities involving the gang) were seized by police. Witness L gave evidence of a conversation he had with Farhad Qaumi after the latter returned from Thailand:
"Q. Who was present for the conversation?
A. Mumtaz, Farhad and myself.
Q. Did Farhad say something about the Chokolatta matter?
A. Yes.
Q. Who was he talking to?
A. Mumtaz.
Q. What did he say?
A. He was going off at him.
Q. He was going off at him; what do you recall him saying?
A. Basically he was telling him, 'You dumb cunt, why'd you believe Witness M for. Because of her my brother's locked up now'.
Q. Did you understand him to be referring to Jamil‑‑
A. Yes.
Q. ‑‑being locked up?
A. Yes.
Q. Was there any mention of Abs in the conversation?
A. Yes.
Q. What do you recall and who said something about Abs?
A. So Mumtaz wasn't saying nothing, everything was Farhad telling him, he's saying, 'Witness M's got a vendetta against Absy'.
Q. Who said that?
A. Farhad's telling that. 'Because of that you won't believe that ‑ Absy and LC, they don't like each other, why would he give my address to them for?'
Q. Who was he talking to?
A. Mumtaz.
Q. And did Mumtaz respond, say anything?
A. No." [7]
In light of that evidence it is difficult to understand how Farhad Qaumi might be criminally responsible for the shooting outside the Chokolatta Cafe, either by reference to traditional principles of accessorial liability or by application of the doctrine of extended joint criminal enterprise as explained in cases such as McAuliffe, Clayton and Gillard.
However, the prosecution submits that his criminal liability arises in the following way:
(1) Farhad Qaumi was the undisputed leader of the Brothers for Life at Bankstown.
(2) Farhad Qaumi ordered a number of shootings directed at members of the Bankstown BFL and persons associated with that group.
(3) In the course of the Revesby Heights shooting and the Zakaria shooting, people other than the targets were shot, wounded and in one case killed. Those victims (Mahmoud Hamzy, Omar Ajaj and H) were innocent bystanders who just happened to be in the vicinity of the shooting that Farhad Qaumi had ordered. Accordingly, Farhad Qaumi in ordering the shootings was aware that other persons may be killed or injured in the execution of those criminal acts.
(4) When Farhad Qaumi left Australia in the midst of this spate of shootings he left his brother Mumtaz Qaumi in charge of the group. He told one or more of his subordinates in the group to follow the orders and directions of Mumtaz Qaumi.
(5) Mumtaz Qaumi ordered the execution of Abdul Abu-Mahmoud.
(6) Those carrying out the orders of Mumtaz Qaumi believed, or were entitled to believe, that they were carrying out the orders that ultimately derived from the leader, that is, Farhad Qaumi.
According to the Crown Prosecutor this gives rise to criminal liability pursuant to the principles of extended joint criminal enterprise as articulated by the High Court in cases such as McAuliffe, Gillard and Clayton. The Crown provided a proposed direction that articulated the case that it proposed to put to the jury:
"The Crown alleges the accused Farhad Qaumi was a participant in a joint criminal enterprise with other members of the Blacktown Brothers for Life to commit a series of offences to take place over a number of day. The offences involved the shooting with intent to kill or at least inflict grievous bodily harm on persons who were members of the Bankstown Brothers for Life or persons who could assist Bankstown Brothers for Life to retaliate against Blacktown Brothers for Life members including himself for their involvement in the Revesby Heights shootings . The objective of the shootings was to advance the interests of the Blacktown Brothers for Life in their conflict with the Bankstown Brothers for Life.
It is the Crown case that Farhad Qaumi was the leader of the Blacktown Brothers for Life and as leader formulated the plan to commit a series of shootings targeting Bankstown Brothers for Life members and others who may assist that group in retaliating. It is the crown case that Farhad Qaumi put in place an arrangement that after the first two shootings he would be overseas and that his brother Mumtaz Qaumi would give the orders for the shootings that followed. Further it can be inferred that he authorised Mumtaz Qaumi to use the Blacktown Brothers for Life personnel and arsenal of weapons to commit the offences. Prior to departure overseas Farhad Qaumi knew that in shootings already committed by his group persons that the shootings were committed in circumstances where persons other than the intended target were present and such persons were shot in the attacks.
The targeting and shooting of Abdul Abu-Mahmoud outside Chokolatta café was because it was believed that he could provide addresses to Bankstown Brothers for Life of the Qaumis so that Bankstown could retaliate by attacking them in their homes. It is the Crown case that the shootings in the early hours of 7/11/2013 was in pursuance of the joint enterprise in which one of the objectives was to shoot and kill or cause grievous bodily harm to persons they believed could assist Bankstown Brothers for Life in retaliating. The Crown case is that the accused foresaw the possibility that in carrying out the joint criminal enterprise persons his members would shoot with intent to kill or cause grievous bodily harm persons other than those specifically targeted.
The crown case is that if it is found that the shooting was pursuant to the ongoing joint criminal enterprise it does not matter if they accept evidence that Farhad Qaumi at a time before the shooting and a time subsequent to the shooting expressed that he did not wish or intend the person Abdul Abu-Mahmoud to be shot." [8]
In McAuliffe v The Queen, the doctrine was encapsulated in the following passage from the judgment of the High Court 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."
After referring to Johns v The Queen (1980) 143 CLR 108 and the Privy Council's decision in Chan Wing-Siu v The Queen [1985] AC 168, their Honours continued at 117:
"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 Crown placed reliance on the following passage of the majority in Clayton [17]:
"A person who does not intend the death of the victim, but does intend to do really serious injury to the victim, will be guilty of murder if the victim dies. If a party to a joint criminal enterprise foresees the possibility that another might be assaulted with intention to kill or cause really serious injury to that person, and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight. That the participant does not wish or intend that the victim be killed is of no greater significance than the observation that the person committing the assault need not wish or intend that result, yet be guilty of the crime of murder."
The United Kingdom Supreme Court recently declared that the law took a "wrong turn" in Chan Wing-Siu and McAuliffe: R v Jogee [2016] UKSC 8. There are currently two cases pending before the High Court in which the appellants contend that R v Jogee should be followed and that the Australian cases in which the concept of extended joint criminal enterprise was formulated should be overruled. Cases of Miller and Ors v The Queen was argued before the Full Court on 10-11 May 2016 and judgment is pending: [2016] HCATrans 107. Special leave was granted in a case called Bucca & Castle v The Queen and the matter is listed for argument on 31 August 2016: [2016] HCATrans 121. A perusal of the submissions (which are available on the High Court's website) [9] shows that the appellants will similarly argue that the law of extended joint criminal enterprise as it has been applied in Australia, at least since the decision of McAuliffe, is wrong and should be changed. In spite of these developments, the law as it currently stands is that stated in McAuliffe. Senior Counsel submitted that McAuliffe and the cases following it were wrongly decided. However, he made this submission to protect his client's position but it is accepted that I must apply the law as it currently stands in determining each of the applications for directed verdict that were argued on 18-19 August 2016.
In determining the current application I must take the Crown case at its highest. As it was put in 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."
In a circumstantial case, the question of whether the Crown has negatived all other reasonable inferences consistent with innocence is a question for the jury, not the trial Judge on an application for a directed verdict: R v JMR (1991) 57 A Crim R 39.
Even taking the prosecution case at its highest and giving effect to the extension of criminal responsibility as represented by the Australian law of extended joint criminal enterprise, I am unable to accept the Crown's submission that there is a case capable of establishing Farhad Qaumi's guilt in relation to counts 10 - 16. There is no evidence upon which the jury could conclude (and I emphasise the word "could") that Farhad Qaumi contemplated the possibility that Mumtaz Qaumi would make the decision to set upon a plan to kill Mr Abu-Mahmoud. Whilst there appears to be evidence that Mr Abu-Mahmoud had some association with members of the Bankstown BFL, he was not a member of that organisation and there is no evidence that Farhad Qaumi was aware of any threat that he apparently posed (at least in the rather erratic thinking of Mumtaz Qaumi and Witness M). The only evidence of Farhad Qaumi's intentions in respect of Mr Abu-Mahmoud is that he did not want him to be a target of the shootings.
I am unable to accept the Crown's submission that the fact that Farhad Qaumi directed a series of shootings, as a pre-emptive strike against a feared reprisal or to take over the turf of the Bankstown BFL, gives rise to a case that he contemplated the possibility that Abdul Abu-Mahmoud would be targeted by Mumtaz Qaumi and his cohorts, let alone that others would be shot with murderous intent in the process. There is no evidence that Farhad Qaumi authorised or directed an unspecified series of "public shootings". Rather, on the Crown case, he nominated or specified a number of potential targets for these shootings and left his brother in charge of organising and executing those shootings.
There is no evidence that he gave directions to members of the Brothers for Life Blacktown that they should follow Mumtaz Qaumi's orders in respect of any crime or shooting that Mumtaz Qaumi decided to commit. The "scope of the common purpose" was determined by reference to a group of named targets. Mr Abu-Mahmoud was specifically excluded from that group. This is a different situation to that considered by the High Court in paragraph [17] of Clayton where an accused might be convicted of murder even though he did not want the victim to be killed but foresaw the possibility that a participant in the enterprise may act with murderous intent. Rather, this is a case where the solicitation and attempt to murder Mr Abu-Mahmoud was outside the scope of the criminal enterprise of which the accused was a participant. The evidence is not capable of establishing that Farhad Qaumi contemplated or foresaw the possibility that Mumtaz Qaumi and others would target people outside the scope of the criminal enterprise or one who was specifically excluded from it.
Accordingly, I have concluded in respect of counts 10, 11, 12, 13, 14, 15 and 16 that there is no case for Farhad Qaumi to answer. I intend to direct the jury to enter verdicts of not guilty in respect of those seven counts.
[2]
Endnotes
Transcript (T) 2828-2829
T 2265.
T 2269-2271.
T 3290-3291.
T 2844.
T 4213-4214.
T 2896-2897.
MFI 191.
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Decision last updated: 24 November 2016