219 CLR 1
Likiardopoulos v The Queen [2012] HCA 37
247 CLR 265
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
Likiardopoulos v The Queen [2012] HCA 37247 CLR 265
McAuliffe v The Queen [1995] HCA 37183 CLR 108
R v JMR (1991) 57 A Crim R 39
R v Phan [2001] NSWCCA 29
Judgment (2 paragraphs)
[1]
Judgment
At the conclusion of the prosecution case on Day 85 of the trial, three of the accused (Mumtaz Qaumi, Jamil Qaumi and Mohammed Kalal) made an application that the jury be directed to return verdicts of not guilty in relation to two of the twenty four counts on the indictment. Those are counts 13 and 15 and are in the following terms:
"FARHAD QAUMI and MUMTAZ QAUMI and JAMIL QAUMI and MOHAMMED KALAL
13. On 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.
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."
The incident giving rise to counts 13 and 15 was the fourth of five shooting incidents with which the current trial is concerned. The target of this shooting was a man called Abdul Abu-Mahmoud. The shooting took place near the Chokolatta Café in Bankstown when two men (Mohammed Kalal and Witness D) opened fire at, or into, a car occupied by Abdul Abu-Mahmoud, Khalil Khalil and Hassan Soueid. There are seven counts on the indictment arising out of the "Chokolatta Café shooting". These include charges of soliciting and attempting to murder Abdul Abu-Mahmoud (counts 10 and 11) and alternative charges of shooting at the three victims with intent to cause grievous bodily harm (counts 12, 14 and 16). I summarised the evidence of the events leading up to the Chokolatta Café shooting in a judgment concerning the (successful) application for directed verdicts made by Farhad Qaumi: R v Qaumi & Ors (No 57) [2016] NSWSC 1157. That summary should be incorporated into this judgment.
R v Qaumi & Ors [2016] NSWSC 1160 | Case summary | Zoe
It is the Crown case that Jamil Qaumi and Mumtaz Qaumi directed those who carried out the shooting and that Mohammed Kalal was one of the shooters.
Counsel for Jamil Qaumi, Mumtaz Qaumi and Mohammed Kalal concede that there is a case to answer in respect of counts 10, 11, 12, 14 and 16 and there is no application for directed verdicts in relation to those counts. It is thereby (and otherwise) conceded that the evidence is capable of establishing the specific intention to kill Abdul Abu-Mahmoud and to inflict grievous bodily harm upon Khalil Khalil and Hassan Soueid. At the heart of the present application is the proposition that the evidence is not capable of establishing the specific intent to murder Khalil Khalil and Hassan Soueid. This is reflected in the following written submission made on behalf of Jamil Qaumi and adopted by the other applicants for directed verdicts:
"7. In relation to Counts 11 and 12, those involving Abdul Abu-Mahmoud as the victim, these counts are arguably part of the original criminal enterprise agreed to prior to the Mazda leaving for the shooting, as supported by the above evidence.
8. It is submitted however, that the original agreement involving [Witness M], Mumtaz and Jamil Qaumi, who might be considered secondary principals not at the scene, did not include an intention to shoot and murder Khalil and Souied. Therefore the Crown can only rely upon the principals of extended joint criminal enterprise to establish culpability for those offences, said to involve the additional two victims Khalil and Souied.
9. In applying the principals of extended joint criminal enterprise to these facts, it is conceded that if the original joint criminal enterprise was to "to shoot Abs" then it may have been a foreseeable possibility for the secondary parties, that in discharging the firearms other persons may be injured in the process. On this basis the secondary principals would remain liable to Counts 14 and 16, even though this was outside of any original agreement. It is submitted that the overall evidence of the informers involved in this offence supports that they fired at the car with the intention to cause grievous bodily harm to those inside the vehicle. These are also the offences that the jury have heard evidence that [Witness D] and [Witness I] have pleaded to and been sentenced for, which supports acknowledgment by them in their evidence that this was their intention.
10. Counts 13 and 15, to which the accused seeks directed verdicts, are charges of specific intent. It is submitted that the evidence of the principals in the first degree in this trial ([Witness D and Witness I] does not establish the specific intention to murder Souied and Khalil."
All five shootings took place in the context of what the prosecution alleges was a turf war between two rival chapters of a criminal gang known as the Brothers for Life (BFL). The accused in the present trial were members of the Blacktown chapter. The targets of the shootings were members of (or associated with) the Bankstown chapter. To understand my decision in respect of the present application, it is necessary to set out in very brief and general terms the circumstances of the first and third shooting incidents.
The first shooting involved a conspiracy to murder Mohammed Hamzy (count 3) and resulted in the alleged murder of Mahmoud Hamzy (count 1) and the infliction of grievous bodily harm upon Omar Ajaj (count 2). This occurred on 29 October 2013 at Revesby Heights. In the context of the present application, it is important to observe that the target of the shooting escaped unharmed and that the persons killed and injured just happened to be at the premises when the shooting occurred.
The third shooting occurred on 4 November 2013 at Blacktown. The target of that shooting was Masood Zakaria. He was not injured when two men opened fire at or into the house in which he and his family were present. However, his fourteen year old sister received grievous (but not fatal) gunshot wounds.
In each of those shootings, people who were not the target of the shootings received fatal or really serious gunshot wounds.
The accused rely on evidence given by two of the people who carried out the Chokolatta Café shooting. There is evidence that, as they travelled in a car to carry out the shooting, Witness D, Witness I and the accused Kalal discussed the possibility of just "[shooting] at the car". However, Witness D said that he got out of the car and "shot at him" (i.e. Abdul Abu-Mahmoud). There is no dispute that the three victims were inside the car when the shots were discharged. There is forensic and ballistics evidence that the windows of the car were struck by projectiles from the firearms. Further, the headrest of the driver's seat received substantial damage from the pellets discharged from the shotgun. It is common ground that the man Khalil Khalil was sitting in that seat and leaning forward when that damaged was occasioned. That he escaped uninjured was fortuitous. The evidence is capable of supporting an inference that the person who discharged the shotgun (Witness D) did so with an intention to kill.
In addition to the ballistics and physical evidence, there is also evidence that two of the occupants of the car (Abdul Abu-Mahmoud and Hassan Soueid) received gunshot injuries.
In determining whether there is a case to answer, the Crown case is to be taken at its highest. In Doney v The Queen [1990] HCA 51; 171 CLR 207 the High Court said 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 R v JMR (1991) 57 A Crim R 39 it was held that in a circumstantial case, the question of whether there is an innocent explanation (or an inference inconsistent with guilt) is a question for the jury.
In putting its case to the jury, the Crown will be entitled to rely on the doctrine of common purpose (or joint criminal enterprise). It will no doubt rely on the concept sometimes referred to as "extended joint criminal enterprise" as that concept was explained in cases such as 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. [1] In McAuliffe the Court said 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."
Given the events that preceded the Chokolatta Café shooting, the jury would be entitled to reason that it must have been in the contemplation of those who organised and planned the shooting that innocent associates of the proposed target might also be shot. That is precisely what had happened in the Hamzy shooting and the Zakaria shooting a few days or a week earlier.
Whether the person who discharged the firearm had an intention to kill is a question of fact for the jury. In spite of any evidence given by the shooters to the contrary, the physical evidence is capable of supporting the inference that there was an intention to kill. It is difficult to rationalise the submission that the evidence is capable of supporting an inference of an intention to inflict grievous bodily harm but not capable of establishing an intention to kill. Some of the submissions seemed to proceed on the erroneous premise that the latter was a crime of specific intent whereas the former was not.
The accused relied on the fact that Witnesses D and I pleaded guilty to, and were sentenced for, offences involving an intention to inflict grievous bodily harm (rather than attempted murder). However, that fact does not resolve the question: see Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265. In Likiardopoulos, the accessory was charged with murder while the prosecution had accepted pleas of guilty to manslaughter by those that had carried out the killing. Gummow, Hayne, Crennan, Kiefel and Bell JJ said at 273:
"On the principal case, the appellant was liable for the murder of the deceased under the principle of criminal responsibility variously described as joint criminal enterprise, common purpose or concert. On this analysis, it was necessary to prove that the appellant was a party to an understanding or arrangement, whether formed expressly or tacitly, with John Likiardopoulos, Aydin and Singh, to inflict really serious injury on the deceased and that, while that arrangement was on foot, one or more of the parties to it did the acts which caused death intending thereby to do really serious injury to him. The appellant's participation in the enterprise while possessed of the requisite intention (here, to inflict really serious injury) operates to fix him with liability for the acts of the other parties carried out in pursuance of it. On the principal case, the appellant's liability is direct and, as his argument acknowledged, his amenability to prosecution for murder is unaffected by the Director of Public Prosecutions' ("the Director") acceptance of pleas to lesser offences from all of the other parties to the joint criminal enterprise."
The accused also relied on the fact that "[Witness D] never stated that he intended to shoot and kill Hassan Souied nor Khalil Khalil". [2] The same submission was put in respect of the driver (Witness I). [3] However, the jury is entitled to draw inferences from the physical evidence. Even if the shooters and driver had specifically denied an intention to kill, the jury would be entitled to reject those assertions and act on inferences arising from the physical evidence.
The accused also submitted:
"The evidence of Witness I in fact changes the original agreement 'to shoot Abs.' The plan appears to have varied when the shooters and driver were waiting in the car. Witness I says that the plan becomes to 'just shoot at the car and drive off' (XXN Clarke 27/6/16 p.3717). Witness D could not recall." [4]
It is difficult to reconcile reliance on that evidence with the concession in relation to counts 11, 12, 14 and 16. In any event, the physical evidence and evidence of injury to two of the occupants of the car is inconsistent with an intention to "just shoot at the car".
The written submissions refer to Jamil Qaumi and Mumtaz Qaumi as "secondary principals not at the scene" and as "secondary parties". It is not completely clear what these labels are meant to convey or what legal impact they have on the current application. Under traditional notions of accessorial liability, the person who carries out the crime is the principal in the first degree. A person present at the scene aiding and abetting the principal is the principal in the second degree. A person who counsels and procures the commission of a crime but who is not present at the scene is referred to as a principal in the third degree or as an accessory before the fact. Each is liable for the acts of the principal in the first degree but their liability is derivative and dependent on proof of the guilt of the principal in the first degree: see, for example, R v Phan [2001] NSWCCA 29; 53 NSWLR 480 at [68] (Wood CJ at CL).
Putting aside the somewhat confusing labels adopted in the submissions, the derivative nature of the liability is at the core of the application for directed verdicts. Thus the written submission conclude as follows:
"12. It is submitted that for the extended joint criminal enterprise to apply to secondary parties, the principals in the first degree must actually commit the other crime. The Crown must have to establish prima facie evidence that the principal offenders have in fact committed another crime outside of the original joint criminal enterprise.
13. In this case, the attack upon the other two males in the car, Souied and Khalil are a clear extension of the original agreement, however there is no prima facie evidence which supports that the principals [Witness D] and [Witness I] formed an intention to murder Souied and Khalil. Therefore there is no evidence to support that the principals have committed these offences (Count 13 and 15).
14. It is submitted that the secondary parties cannot be liable, pursuant to extended joint criminal enterprise, to offences that the principal participants did not commit."
Whether the Crown elects to put its case on the basis of traditional accessorial liability or on the basis of extended joint criminal enterprise (or both), it will be required to establish that the shooter(s) acted with an intention to kill. It will also be required to establish that the attempted murder of Khalil Khalil and Hassan Soueid was "crime falling within the scope of the common purpose" and that the accused "foresaw that the incidental crime might be committed". [5] It will have to establish that the accused contemplated the possibility that the principal(s) would act with a murderous intention. [6]
The question at this stage is whether the evidence is capable of establishing those things. Even if it was considered that the case was "tenuous or inherently weak or vague", the case cannot be taken away from the jury unless there is no evidence capable of supporting the inference that the shooters acted with an intention to kill and that the other accused were aware of the possibility that they would do so. The combination of the physical and ballistics evidence, damage to the car and injury to two of the men sitting in the car, is capable of supporting that the principal acted with an intention to kill. The events that preceded the Chokolatta Café shooting are capable of supporting the inference that the organisers of the shooting knew that people other than intended target may be shot and, given the extreme nature of the enterprise, that the principal would carry out the shooting with an intention to murder.
There is evidence capable of supporting each of the charges and the case must be left to the jury.
The applications by Mumtaz Qaumi, Jamil Qaumi and Mohammed Kalal for directed verdicts of not guilty in respect of counts 13 and 15 are refused.
[2]
Endnotes
In R v Qaumi & Ors (No 57) I referred at [28] to the fact that there is currently a challenge to the correctness of this line of authorities. However, there is no suggestion that I am not bound to follow the law as it currently stands.
Written submission (MFI 197) at paragraph 11(b).
Supra at 11(c).
Supra 11(d).
McAuliffe v The Queen at 115-117.
Gillard v The Queen at [25].
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Decision last updated: 24 November 2016