R v Qaumi & Ors

Supreme Court of NSW|2016-03-14|Before: Hamill J

Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (Kalal) File Number(s): Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami - 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy - 2014/316236Mohammad Kalal - 2013/344739; 2014/66939 Publication restriction: No publication until the conclusion of the trial.

Judgment

By separate notices of motion each of the accused applies for a "trial by judge order" under s 132 of the Criminal Procedure Act 1986 (NSW) ("the Act"). The general ground upon which each accused relies is that a trial by judge alone "is in the interests of justice": s 132(4).
The major factual circumstance upon which that ground is founded concerns the prejudice that will arise if the trial is conducted before a jury. That prejudice arises in a number of ways. First, the case has been subject to considerable pre-trial publicity and much of this has been sensational, emotive and lacking in balance and objectivity. That pre-trial publicity also disclosed previous offences committed by some or all of the accused. The prejudice also arises from the fact that the prosecution proposes to elicit a body of evidence of uncharged criminal acts to establish that each of the accused participated in a criminal group. That body of evidence, or parts of it, may also be relied upon in other ways including as evidence of a tendency in one or other of the accused men to act in particular ways or to have a particular state of mind: see s 97 of the Evidence Act 1995 (NSW).
The Director of Public Prosecutions does not agree to a "trial by judge order": s 132(2). Accordingly, it falls to me to determine whether or not it is in the interests of justice to make the order sought. The Crown Prosecutor relies on the fact that a number of factual issues that are likely to arise in the trial will require "the application of objective community standards": s 132(5).
The principles to be applied, and the matters that might go to a proper consideration of where the interests of justice lie, have been considered in a number of cases in New South Wales: see, for example (in the Court of Criminal Appeal) R v Belghar [2012] NSWCCA 86; 217 A Crim R 1, R v Stanley [2013] NSWCCA 124 and Redman v R [2015] NSWCCA 110; (in the Supreme Court) R v King [2013] NSWSC 448, R v Dean [2013] NSWSC 661, R v Abrahams [2013] NSWSC 729, R v Gittany [2013] NSWSC 1503, R v Villalon [2013] NSWSC 1516, R v McKnight [2014] NSWSC 398, R v Trawin-Hadfield [2014] NSWSC 591, R v Farrow [2014] NSWSC 1781, R v Simmons; R v Moore (No 4) [2015] NSWSC 259 and R v McNeil [2015] NSWSC 357; (in the District Court) R v Markou [2011] NSWDC 25, R v GSR (No 3) [2011] NSWDC 17, R v FH [2012] NSWDC 283 and R v Tasich [2012] NSWDC 261. Similar provisions have also been considered by the courts of other States: see, for example, Arthurs v Western Australia [2007] WASC 182, Coates v Western Australia [2009] WASCA 142 and R v Fardon [2010] QCA 317.
I reviewed the authorities in R v Simmons (No 4). I do not propose, in the course of the present judgment, to restate the various principles which are at play in an application under s 132. Reference should be made to the discussion in R v Simmons (No 4) to understand the legal landscape in which the present decision is made. Where appropriate, I will identify the areas where there is some controversy in the law and explain the approach that I take to those controversies.
Having carefully considered the arguments of counsel and the particular facts and circumstances of the present case in the context of the law as I understand it to be, I have concluded that it is not in the interests of justice to make an order for a trial by judge alone. These are my reasons for that conclusion.
As a result of the timing of the application, and consequent urgency with which this judgment has been prepared, my reasons may not be as comprehensive (or indeed as coherent) as they might have been if I had more time to prepare and review the judgment. To understand the factual and evidentiary matrix with which this decision is made, it is necessary to refer to my earlier judgment on severance and separate trials (R v Qaumi & Ors (No 3) [2016] NSWSC 15) as well as some of the rulings on the admissibility of some parts of the evidence (R v Qaumi & Ors (No 4) [2016] NSWSC 114, R v Qaumi & Ors (No 5) [2016] NSWSC 113 and R v Qaumi & Ors (No 6) [2016] NSWSC 115). Further, this judgment is to be delivered at the same time as two judgments relating to applications by some of the accused for non-publication and suppression orders and for "take down orders" compelling certain items to be removed from the internet: R v Qaumi & Ors (No 15) [2016] NSWSC 318 and R v Qaumi & Ors (No 16) [2016] NSWSC 319. Those judgments required consideration of a number of related issues, and some of the same authorities, in the context of the exercise of different statutory and inherent powers and discretions. The three judgments should be considered in conjunction with one another in order to appreciate the overall legal and factual landscape in which the decisions are made.

The Timing of the Applications and the Requirement for Leave

The first occasion when the possibility of an application for trial by judge alone was indicated was when the matter was before the list Judge during a series of call overs. On 3 July 2015 when the list Judge indicated that I was to conduct the pre-trial hearing. At that point, Mr Young SC who appears for Mumtaz Qaumi indicated that there may be an application for trial by judge alone. Whilst that sequence of events may be seen to indicate what is often described as "judge shopping", I accept that, in fact, Mr Young SC was merely complying with certain remarks that I made in R v Simmons (No 4) when I was critical of the tardiness of the application that was made in that case (at [24]-[25]: "24. On 3 March 2015, Senior Counsel for the accused indicated that he had instructions to make an application for a judge alone trial. He indicated that he would formally make the application by notice of motion the following day although he doubted that 'it actually needs a couple of pieces of paper to galvanise the Crown into action in the circumstances'. On 4 March 2015, Senior Counsel had in his possession the formal documents but did not seek to file them until he had taken further instructions: 'I'm going to give my client one further opportunity to consider his position, having heard your Honour's judgment.' 25. This was a reference to my judgment in R v Simmons (No 2), handed down earlier in the day and in which I made certain remarks about Mr Simmons' conduct, character and willingness to engage in criminal activity of a large variety of kinds (see for example at [142]-[149]). The appearance, if not actuality, was that Mr Simmons was basing his decision around things I had said earlier in the day. This was a perfectly sound and proper forensic exercise and an appropriate discharge of counsel professional responsibility to his client. However, as I said in the course of the argument, it was an 'unedifying spectacle' from the point of view of appearances. It would not have occurred had the application for a judge alone trial been made in advance of the trial and in a timely fashion."
Further, the list Judge did not indicate that I was to be the trial Judge but rather that I was to case manage the matter in circumstances where it had been indicated that there were a large number of pre-trial issues to be dealt with.
The matter first came before me on 27 July 2015. On that date, nine accused, including the remaining five accused, were arraigned. Since that time, four of the accused have ceased to take part in the proceedings for various reasons. First, one of the accused (Nazir Akbari) indicated that he wished to plead guilty and his matter was remitted to the District Court. Then, on 3 February 2016, I made an order granting two of the accused (John Bishop and Mohammed Nasiri) separate trials. Those matters were also remanded to the District Court. Finally on 3 March 2016, an accused (Witness M) entered a plea of guilty and her matter was stood over for sentence.
I set out that chronology because it is relevant to the circumstances in which the applications for trial by judge alone have been made, seemingly, at a very late stage.
On 27 July 2015, I made a number of case management orders. They included an order that the pre-trial hearing would commence on 2 November 2015 with the trial (or trials) to commence on 15 February 2016. The pre-trial hearings were much more complicated and lengthy than was originally anticipated. As a result, on 12 February 2016 I re-fixed the trial date so that it was scheduled to commence on 14 March 2016.
After Court on 18 December 2015 my Associate was told by counsel that all eight accused intended to make an application for a trial by judge alone. Up until that point, I had been told that one of the accused (Witness M) did not consent to a trial by judge alone but that the remaining accused did. Over the January vacation only one accused (Farhad Qaumi) filed any notice of motion indicating that an application was to be made. Then on 3 February 2016 I was told by Mr Stratton SC (appearing for Farhad Qaumi) that two of the accused did not consent to a trial by judge alone. Section 132A(2)(a) of the Act provides that an application for a trial by judge alone "must not be made in a joint trial unless all other accused person apply to be tried by a judge alone". This meant that the accused were prohibited from making an application for a trial by judge order until all of the co-accused applied for such an order.
Farhad Qaumi filed a notice of motion for a trial by judge alone on or around 15 January 2016. Mumtaz Qaumi filed a notice of motion seeking an order for a judge alone trial on 28 January 2016. Each of those applications were within the 28 day time limit provided by s 132A of the Act, which is in the following terms: "132A Applications for trial by judge alone in criminal proceedings (1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court."
Jamil Qaumi filed a notice of motion seeking a trial by judge alone on 2 March 2016. Mohammed Kalal filed a notice of motion seeking a judge alone trial on or about 3 March 2016. Mohammad Zarshoy filed his notice of motion on 7 March 2016. At the time that those notices of motion were filed, the trial was listed to commence on 14 March 2016. Accordingly each was outside of the 28 day time limit provided by s 132A of the Act. It was conceded by counsel for Mohammed Zarshoy and Jamil Qaumi that leave was required.
Counsel for Mohammad Kalal made the somewhat surprising and inventive submission that leave was not required because, since the notice of motion was filed, the trial date had been adjourned so that we are now scheduled to commence the trial (either with or without a jury) on 4 April 2016. Accordingly, it was submitted that the application was filed within time because it was filed more than 28 days prior to the revised trial date. That is a surprising submission given that one of the reasons that the trial date was vacated and rescheduled was the fact that the applications for trial by judge alone came at such a late stage. The postponement of the trial also arose because of the changed plea of Witness M. Nevertheless at the time the notice of motion was filed, it was out of time. I agree with the position taken by counsel for Jamil Qaumi and Mohammed Zarshoy that they require leave to pursue the application.
However, little time needs to be spent on the question of leave because the learned Crown Prosecutor concedes that leave should be granted in the circumstances. I agree with that concession. First, the provisions of the Act to which I have referred disentitled the accused from making an application unless or until all of them made it. Until such time as Witness M (and the other unedified dissentient) finally indicated their consent to a judge alone trial, any application under s 132 was destined to fail. Accordingly, there is a clear and valid explanation for the lateness of the applications. Further, it could not be suggested that the applications are made lightly and the basis upon which the applications are made concern matters of substance.
Accordingly, I grant leave to Mohammed Zarshoy, Mohammad Kalal and Jamil Qaumi to make an application under s 132 of the Act.

Some uncontroversial Principles and their relevance to the application in the present case

The cases to which I have made reference establish a number of clear principles of general application when an application is made for a trial by judge alone under s 132 of the Act.
First, there is no presumption in favour of a trial by jury: see R v Belghar. While there may be an evidentiary onus upon the accused, there is no legal onus on an accused person who seeks an order under s 132 of the Act; R v Simmons (No 4) at [57]. The accused have satisfied that evidentiary onus and the decision must turn upon a consideration of the interests of justice. There is no onus on either party.
Next it has been held and accepted that "an accused cannot have a trial by judge alone for the asking": R v Stanley at [42] (Barr AJ). As I said in R v Simmons (No 4) at [58]-[59]: "58. In R v Stanley [2013] NSWCCA 124 Barr AJ held that "an accused cannot have a trial by judge alone for the asking". However, the Queensland authority relied upon in support of that proposition appeared to take the view that the Criminal Code 1899 (Qld) was not "neutral" and that trials by judge alone were "exceptional": R v Fardon [2010] QCA 317 at [81]. It is difficult to reconcile that position with the judgment of McClellan CJ at CL in R v Belghar. His Honour at [96] referred to the comments in R v Fardon as obiter and rejected the proposition that the New South Wales statute required "weight to be given to the fact that, absent an application for a judge-alone trial, the trial will be with a jury". 59. However, it must be correct that the accused has no right to demand a trial by judge alone."
On the other hand, the fact that an accused person has decided on legal advice to seek an order for a trial by judge alone is a relevant matter to be considered in determining where the interests of justice lie. Similarly, the concerns expressed by an accused through his legal representatives that he will be prejudiced in a jury trial and that he will not receive a fair trial before a jury is a factor to be taken into account. While it was held in R v Stanley at [42] that there must be more than "a mere stated apprehension without supporting evidence", the material tendered in the present case establishes that the concerns expressed by the accused in the present case are supported by the nature and extent of the pre-trial publicity.
This is a particularly significant factor in the present case where five separate accused, represented by five experienced and capable legal teams, seek to relinquish their right to a jury trial and, in various ways, implicitly or explicitly, expressed concerns as to the capacity of a jury to provide them with the fair trial, free of prejudice, to which each of them is entitled. I have taken their wishes and expressed concerns into account.
The efficiencies of a judge alone trial, over a jury trial, is a matter that may form "part of the mix of issues" to be considered in a particular case: see R v Belghar, McClellan CJ at CL at [110]. However, his Honour went on to say at [111]: "111. However, I would not accept that the interests of justice in s 132 can be informed by considerations of the overall efficiencies in the operation of a court which may be available from a judge-alone trial. No doubt they are important issues for the administration of justice and may ultimately lead to further legislative intervention but, as the majority determined in Pambula Hospital v Herriman (1988) 14 NSWLR 387, they are not relevant to the interests of justice in the particular case."
As I noted in R v Simmons (No 4) at [69], an example of a case where the length of the trial was a relevant consideration was the case of R v Gittany, in which the accused was unable to fund his legal team for a trial of significant length. There was evidence in that case that the trial would have been substantially longer had it been conducted before a jury. This was one of the factors which persuaded McCallum J to order a trial by judge alone. There has been no evidence in the present case, and no submissions have been made, pressing questions of efficiency as a significant factor.
However, some counsel have expressed the concern that the nature of the evidence to be called by the Crown including the evidence of some twelve or so informant witnesses, may result in the jury being discharged due to prejudicial evidence being produced. Further, the publicity surrounding the trial may lead to similar applications for discharge of the jury. Senior Counsel for Farhad Qaumi pointed to a recent example: see, for example, R v McNeil [2015] NSWSC 357, R v McNeil (No 2) [2015] NSWSC 757.
I have taken into account the difficulties that will attend the conduct of a jury trial and in particular the concerns expressed by counsel that prejudicial evidence and publicity may lead to applications for discharge. However, ultimately I am confident that the learned Crown Prosecutor and his team will do everything possible to ensure that no evidence beyond that which has been held or agreed to be admissible will be led. This may require particular witnesses to be kept on a tight rein and will no doubt require careful explanations to the witnesses as to areas that have been ruled or agreed to be inadmissible. While the possibility of applications for discharge can never be ruled out in a trial of such length and involving such subject matter, and while I have taken this concern into account in my overall assessment of where the interests of justice lie, I do not consider this to be a major factor in the resolution of the current dispute.
It is generally accepted that one of the advantages of a judge alone trial is the requirement for a judge to give reasons for their decision. By its nature, nothing is known of a jury's deliberations or reasons for its verdict. This has been held in some cases to be an important factor militating in favour of a trial by judge alone. Counsel for Mohammad Zarshoy submitted that this is a relevant factor in the present case when a jury's verdict is likely to be delivered many weeks or months after some of the critical informant witnesses have given their evidence. Counsel for Mr Zarshoy suggests that it is next to impossible to accept that a jury will be able to remember the witnesses over such a lengthy period of time, whereas a judge would be required to give reasons why they accepted or rejected a witnesses evidence based on matters concerning their credibility. I accept that this is a factor militating in favour of an order for a judge alone trial and have taken it into account. However, it is a relatively small factor given the magnitude of the concerns expressed in relation to questions of prejudice which form the cornerstone of the application in respect of each of the accused.
It has been held that some cases involve significant complexity such that it is more appropriate for a trained judge, rather than a lay jury, to be the tribunal of fact: see Kingswell v R [1985] HCA 72; 159 CLR 264 at 302-303 (Dean J), R v Simmons (No 4) [71]-[72]. This is particularly the case in relation to complex scientific or expert evidence. None of the accused in the present case has contended that any of the expert evidence which is expected to be adduced in the trial is of such complexity that it is a relevant consideration in an assessment of the interests of justice in the present case.
However, a number of the accused submitted that the trial itself will be both complex and long and that this complexity is a matter to be taken into account because a jury may not be able to follow the evidence given its length and the fact that parts of the evidence will be admitted against one or other of the accused and not against the balance of the accused. While I accept that the matter has a certain complexity, there have been many cases in New South Wales where jurors have been called upon to sit in trials over many, many months involving multiple accused and where the separate bodies of evidence and separate consideration had to be given in respect of not only the individual accused but also the individual charges. There is nothing before me to suggest that the present case is of such complexity that a jury will not be able to understand the evidence as it is adduced or follow the directions as to which parts of the evidence may be used in respect of individual charges and individual accused. In coming to that conclusion, I indicate that I am greatly comforted by the fact that I have two experienced Crown Prosecutors and five experienced defence counsel each of whom is charged with responsibility to ensure that it is clear both as the evidence is elicited, and at the conclusion of the case, what parts of the evidence are to be used in respect of the individual accused.
While I have taken into account the submissions made in respect of the length and complexity of the trial, it is not a matter of significant weight in the circumstances of the present case.
Finally, the provision of s 132(5) provides guidance as to one factor that might inform a consideration of where the interests of justice lie. However, two things can be observed about s 132(5). First, the list of examples of matters that "require the application of objective community standards" (reasonableness, negligence, indecency, obscenity and dangerousness) is not exhaustive but examples. This is entirely clear by the use of the expression in parenthesis ("but not limited to"). Secondly, and importantly in this case, the fact that a case may give rise to such factual issues does not disentitle an accused person from obtaining an order for a judge alone trial. Rather, it enlivens a discretion in the court - it "may refuse to make an order" on that basis. However, the ultimate question remains always that posited by s 132(4): is it "in the interests of justice" to make an order for a judge alone trial?

three Areas of Controversy

On my review of the authorities and academic materials there are three areas of controversy surrounding the application of the section and the question of whether a judge or a jury is the more appropriate tribunal of fact. The first concerns the question of intention and whether that question is one that involves a question of fact that requires the application of objective community standards. The second is the question of whether a judge or jury is the better arbiter when questions of credibility are in issue. In relation to those first two questions, there is a divergence of opinion amongst the judiciary. The third question concerns the extent to which jurors are able to - and do - follow directions and put aside matters of emotion and prejudice. On that issue, judges generally speak with one voice while academics have raised questions over the approach taken by the courts.

Intention

The first is the area of controversy concerns the question of intention. A number of judges have expressed the opinion that questions of intention may (or necessarily do) give rise to the application of objective community standards: see AK v Western Australia [2008] HCA 8 at [95] (Heydon J), R v Stanley [2013] NSWCCA 124 at [55]-[58] (Barr AJ, Macfarlan JA and Campbell J agreeing), R v Dean [2013] NSWSC 661 at [58] (Latham J), R v King [2013] NSWSC 448 at [52] (Bellew J) and R v McNeil [2015] NSWSC 357 at [88]-[98] (Johnson J).
Other judges have expressed the opinion that whether a person formed a particular intention is a matter of fact that does not involve the application of community standards: see the analysis by Harrison J in R v Abrahams [2013] NSWSC 729 at [73]-[77]. In R v Simmons (No 4) (at [64]) I set out the passage from the judgment of Harrison J in R v Abrahams and expressed my agreement with his Honour's observations. My opinion, like that of Harrison J, was that "it is difficult immediately to accept that cases concerned with the assessment of whether or not a particular individual had formed or retained a particular intent … necessarily or even arguably 'involve[s] a factual issue that requires the application of objective community standards'": Abrahams at [75].
In deference to the subsequent judgment of Johnson J in R v McNeil, I have again considered the issue and the conclusions I expressed in R v Simmons (No 4). Having done so, I remain of the view that the question of intention is a question of fact and is not one that involves the application of community standards such as to attract the provision in s 132(5) of the Act.
For that reason, insofar as questions of intention, including questions of specific intent, will be raised in the present case, I approach the matter on the basis that it is a neutral consideration. Both a judge and a jury are able to form assessments of that factual question based on inferences to be drawn from the actions of the individuals involved. Neither tribunal would be required to assess the matter by reference to some objective community standard.

Credibility issues

The second area of controversy concerns the question of whether a jury is the better tribunal to determine issues of credibility. I explored this issue in R v Simmons (No 4) at [73]-[82]. This is an extremely important issue in the present case. While the Crown has a body of circumstantial and expert evidence that it will contend supports its informant witnesses, none of that evidence by itself would be capable of establishing any of the charges against the accused. It can safely be anticipated that the informant witnesses will be subjected to a significant attack upon their credibility. The result of the trial will depend on the tribunal of fact's determination as to the substance of that attack and the credibility of each of the informants. Accordingly, this is a critical matter to be considered in the context of the present application.
As I indicated in R v Simmons (No 4), I am of the view that an assessment of credibility is not a matter in relation to which either a judge sitting alone or a jury of twelve enjoys a clear advantage. It is, in my opinion, a neutral consideration in an application such as the present. As has been pointed out in the cases summarised in R v Simmons (No 4), each mode of trial has its own advantages. On the one hand, the unanimity required of a jury and the capacity of a group of people to consult with one another and to discuss and debate questions of credibility gives them an advantage over the lonely judge, sitting in chambers, attempting to make a decision. On the other hand, and this is particularly apposite in the present case, a judge is trained and expected to be able to put aside questions of emotions and prejudice. Further, as explained above, a judge is required to expose their reasoning for accepting or rejecting a witness and their credibility. This is an advantage of a judge alone trial when questions of credibility arise.
I remain of the view that I expressed in R v Simmons (No 4). That view found favour with Adams J in Redman v R [2015] NSWCCA 110 at [14]-[15]: "14. The supposition that a jury is a better arbiter of relative credibility than a judge is reflective of assumptions rather than experience and lacks sufficient substance to be placed in the scales. As Hamill J noted, there are a number of judicial statements commending the ability of juries to assess credibility and reliability of witnesses but '…it is difficult to discern a clear consensus in the Australian authorities in support of a proposition that where credibility issues are essential to a trial, that is a factor that militates strongly in favour of a jury trial' (Ibid at 75). His Honour concluded - [82] …[For] the most part, the fact that a trial involves issues of credibility is a neutral matter when it comes to determining whether it is in the interests of justice to make an order for trial by judge alone … [Each] mode of trial has its advantages and disadvantages, strengths and weaknesses. While a jury has the advantage of being able to discuss the issues and the requirement for unanimity provides strength to its decision, a judge has the training and experience of making difficult decisions on question[s] of credibility, putting aside matters of emotion, on an almost daily basis. 15. (I would add the additional consideration that, here, the effect of delay on the ability of the applicant to defend himself is a complicating feature.)"
However, the other judges who sat on that appeal (Hoeben CJ at CL and R.A. Hulme J) did not need to consider the issue and the matter remains controversial. For example, Johnson J expressed the contrary view in R v McNeil at [102]-[105].
I approach the present application on the basis that the fact that the trial will be determined largely on an assessment of the credibility of the Crown witnesses is not a matter that militates either in favour or against the making of the order sought by the accused. I do not proceed on the basis that there is some special advantage enjoyed by a jury in making assessments of credibility.

Do jurors obey direction and can they put aside matters of prejudice?

There is a third matter of controversy, although, for the most part, judges have spoken with one voice on the issue. The issue here is the capacity of a jury to put aside prejudicial material and, more generally, to follow and obey judicial direction. The law proceeds on the basis that juries can put aside prejudicial material and do obey direction. However, some judges (including myself) have expressed some misgivings in relation to what is an extremely powerful (and, from my perspective, binding) line of the authorities. In addition to the occasional comment by judges, there is a body of academic study which places some doubt over the line of authorities to which I have just referred.
In R v Simmons (No 4), I discussed this controversy at [83]-[92]. At [87], I referred to the questioning by academic writers of the "near heroic belief that jury directions can cure negative impressions formed about an accused": see Mirko Bagaric, "The Community Interest in Bringing Suspects to Trial Trumps the Right to an Impartial Decision Maker - at least in Victoria" (2010) 34(1) Criminal Law Journal 5 at 8. On the hearing of the present application, Senior Counsel for Farhad Qaumi brought to my attention an article by Roxanne Burd and Jacqueline Horan entitled "Protecting the Right to a Fair Trial in the 21st Century - has a trial by jury being caught in the world wide web?" (2012) 36 Criminal Law Journal 103. I have taken into account the discussion by Ms Burd, particularly at pp 111-113. The authors raise significant questions over whether juries, as is assumed by judges at all levels, follow judicial direction. They raise an example of a case in Victoria called R v Benbrika [2009] VSC 142. In that case a trial judge "repeatedly and unambiguously told the jury that the case was to be decided on the evidence given in the court room". In spite of those directions there was evidence that the jury had accessed "Wikipedia" via the internet as well as a dictionary. The authors concluded (at 113) that "it should not be assumed that jurors will follow judicial directions". The authors also considered whether jurors can remain impartial in the face of extremely prejudicial publicity and discussed "the rise of the googling juror". The authors concluded (at 117) that "juror misbehaviour in recent trials makes judicial faith in the jury following their 'don't search' directions seems like mere rhetoric". This is reminiscent of the academic comment in the articles I referred to in R v Simmons (No 4) that there was a deal of "judicial wishful thinking" in the approach taken by the Courts.
Mr Young SC also referred to an academic article in support of the proposition that the circumstances of the present case are such that I should be wary in acting on an assumption that jurors will follow direction not to make any searches in relation to the accused. The article in question was called "Jurors' Notions of Justice; An Empirical Study of Motivations to Investigate and Obedience to Judicial Directions" by Professor Jill Hunter of the Faculty of Law of the New South Wales University, published February 2014. The article reported on a study involving seventy-eight jurors who had participated in twenty trials. The study showed that a reasonably high proportion of the jurors felt some sympathy with a juror who had disobeyed judge's directions and undertaken research to find out more about the accused. However, the overwhelming majority found private jury inquiry unacceptable but that the comments to the contrary were a matter of concern.
I have some sympathy with the arguments being advanced by counsel. As I explained in R v Simmons (No 4), the assumption that jurors obey directions and are unaffected by prejudice is an assumption that can only be taken so far. There are a number of judicial remedies (such as discharging a jury, separating trials and counts, excluding prejudicial evidence etc) to which reference was made in R v Simmons (No 4) which demonstrates that the law accepts that such limits exist. Other judges have expressed similar views: see, for example, BC v R [2015] NSWCCA 327 at [28]-[30] (Adams J, dissenting), R v Debs [2011] NSWSC 1248 at [31]-[35] (RS Hulme J), Murphy v The Queen [1989] HCA 28; 167 CLR 94 at 101 and R v Glennon [1992] HCA 16; 173 CLR 592 at 614-615 (Brennan J).
There have been a number of reported cases where jurors have disobeyed directions and undertaken their own research: see, for example, R v K [2003] NSWCCA 406; 59 NSWLR 431, R v Skaf [2004] NSWCCA 37; 60 NSWLR 86, Folbigg v The Queen [2007] NSWCCA 371; R v Wood [2008] NSWSC 817; 186 A Crim R 454, R v Benbrika.
However, the line of authorities to which I have previously referred is a strong and binding one. I must proceed on the general - but not, I think, absolute - assumption that jurors will be true to their oath or affirmation and that they will follow directions: see, for example, Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 293 ALR 384 at [62]-[63], R v Jamal [2008] NSWCCA 177; 72 NSWLR 258 at [19]. I must also assume that jurors will not be unduly influenced by matters of prejudice and are not (to quote the former Chief Justice) "exceptionally fragile and prone to prejudice": see John Fairfax Publications v The District Court of NSW [2004] NSWCA 324; 61 NSWLR 344 at 103 (Spigelman CJ). In Gilbert v The Queen [2000] HCA 15; 201 CLR 414 McHugh JA said at [21]: "Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials."
The question for my determination, in the context of the arguments that have been made in the present case, is whether sufficient safeguards can be put in place to ensure that there is no jury misbehaviour and that the accused are able to receive a fair trial. I do not proceed on the unquestioning assumption that jurors are immune to prejudice or misconduct but I must, I think, proceed on an assumption that generally they will obey judicial directions. That is particularly the case when, as here, the jury will be directed that to undertake internet research as to the background of the accused is to commit a crime under s 68C of the Jury Act 1977 (NSW) and that I understand that there is a deal of material on the internet that is unfair, misleading and untrue both to some of the witnesses and to the accused. Accordingly, the jury will be directed that not only will they be committing a criminal offence if they go searching for the material but they will also be responsible for a grave miscarriage of justice. My view is that the sense of decency and integrity which the overwhelming majority of people bring into the jury room is likely to overcome the inevitable temptation to become a "googling juror".

The Pre-trial Publicity in the present case

In addition to all of the evidence that has been adduced in the course of the pre-trial hearings (which is extensive and has been summarised in other judgments), the accused relied on the contents of three affidavits: 1. An affidavit of Farhad Qaumi's solicitor, Ms Gittani, dated 15 January 2016. 2. An affidavit of Mumtaz Qaumi's solicitor, Ms Sten, dated 28 January 2016. 3. An affidavit of Jamil Qaumi's solicitor, Ms Christinson, dated 2 March 2016.
Each of those affidavits annex a number of newspaper articles and internet pages which demonstrate that the various accused have been the topic of significant media and internet attention. I have considered all of the material but will make reference only to parts of it.

Material annexed to Ms Gittani's affidavit

Annexure A to Ms Gittani's affidavit shows the results of a Google search for the name Farhad Qaumi. It attracted 12,100 results on 5 January 2016. A related search for "Farhad Qaumi acquitted" is annexure B and showed 2,100 results. Looking at the items on the first page of these results demonstrates the flavour of the material on the internet. For example, there is a reference to "Farhad Qaumi: the rise and bloody fall of a brutal gangster". Farhad is described as the "Brothers 4 Life gang 'kingpin'". Annexure B is more troubling because it shows that there is available on the internet a number of items which detail the fact that Farhad Qaumi has previously been acquitted of "two Sydney murders". Evidence of him boasting about this to other members of the Brothers for Life at Blacktown has been subject to a pre-trial ruling and has been excluded from the trial: R v Qaumi & Ors (No 6) [2016] NSWSC 115.
Annexure C is the most recent article of significance. It followed the sentencing proceedings of a witness known as "L" in September 2015. An article online in the Sydney Morning Herald refers to a "mega-trial" of up to a dozen members of the Brothers 4 Life gang for a "series of murders, shootings, drug dealing extortions and bashings that terrorised western Sydney in 2012 and 2013". Whether two murders could ever be accurately described as a series is one thing, but the fact is that the jury in the present case will only hear evidence in relation to one of the murders with which Farhad and Mumtaz have been charged.
Annexure D is an article from 28 October 2014 which refers to the "$200,000 hit" and execution of Joseph Antoun. This unrelated charge of murder was separated from the current proceedings in one of my pre-trial rulings: R v Qaumi & Ors (No 3) (severance and separate trial) [2016] NSWSC 15.
Annexure E refers to an incident in Court before the List Judge when the various accused were said to have been joking with one another via video link.
Annexure F is an article from the Sunday Telegraph which provides significant detail concerning witness L and the evidence that he proposes to give. This article, published on 24 May 2015, but still readily available on the internet, refers to the execution style killing of Joseph Antoun and alleges that "Farhad and Mumtaz ordered the hit". Similarly, there is reference to evidence proposed to be given by other former members including threats made by Farhad Qaumi to shoot various members and the extensive involvement of the group in drug dealing and gangland activity.
Annexure G refers to the "rise and bloody fall of a brutal gangster" and specifically relates to Farhad Qaumi and refers to an attempt on his life that occurred some months after the events giving rise to the current proceedings.
Annexure H is an article that relates to the earlier trial, back in 2009, when Farhad Qaumi was found not guilty of two murders as a result of successfully arguing that he acted in self-defence.
Annexure I is a lengthy article from an on-line publication of the Daily Mail Australia. It was published on 22 July 2015 but was still available to be accessed on 5 January 2016. It is an article about the "supermax" prison in Goldman and refers to Australia's worst and most notorious criminals being held there. This includes a number of convicted felons who have been responsible for some of New South Wales most atrocious and notorious crimes. Included in the article is a reference to the accused Farhad Qaumi and an incident that took place when he was held in supermax. The obvious inference to be drawn from this article is that Farhad Qaumi, like the notorious criminals mentioned in the article, forms part of the "worst of the worst" of criminals in this State.

Affidavit of Ms Sten

Annexed to Ms Sten's affidavit is similar material uncovered as a consequence of a "Google search" of the accused Mumtaz Qaumi. When the search was conducted it attracted some 45,100 results. A more recent search attracted around 51,000 results leading Senior Counsel for Mumtaz Qaumi to suggest that the amount of media is increasing and that more articles have been published. However, there is simply no evidence of any significant articles since the article of September 2015 which related to the sentencing of L. Some quite recent articles were tendered in evidence (Exhibit 21 and 22) but, by comparison they are largely benign. No counsel has brought to my attention any significant coverage since early September 2015.
It is somewhat difficult to reconcile the 51,000 results thrown up by a search of Mumtaz Qaumi with the 12,100 results for Farhad Qaumi given that the latter is said to be the leader and has had a previously murder trial. It is important not to be unduly influenced by the sheer number of results as it is simply not known how many of those results have any actual relevance to the current proceedings.
The material attached to Ms Sten's affidavit demonstrates the extent of pre-trial publicity to which both the accused Mumtaz Qaumi and the Brothers for Life gang has been subjected. There is reference to the Antoun killing (see for example annexure F) as well as a number of tendentious factual assertions concerning the Brothers for Life. A great deal of the material concerns matters which, on my understanding of the case, will not be led in the trial. Further, far from representing objective factual reporting, the articles are largely sensational in their nature.
There is some duplication between the material produced in the affidavit of Ms Sten and that of Ms Gittani but there are a number of additional articles and references. The significance of the separate affidavits is that the articles in question are thrown up by searches of different accused names.

Affidavit of Helen Christinson

The affidavit of Ms Christinson provides an even more comprehensive annexure setting out the publicity that has surrounded the case between January 2014 and June 2015. There is some duplication of the material in the other affidavits to which I have referred but there are a number of additional articles which have been located by Ms Christinson. Again, the material includes reference to evidence that will not be included in the trial and includes material that on my understanding of the brief is not factually accurate and is properly described as sensational and tendentious.
For example, in an ABC News article dated 12 December 2014, the accused Zarshoy (spelled incorrectly) is described as having "demonstrated a propensity for extreme violence" and as "having a vast criminal history". In an article published by the Sydney Morning Herald on 9 January 2014, it is reported that "police say they know what occurred at almost every shooting in Sydney over the past 12 months" and that police had the "upper hand on Sydney's gang violence following the arrest of three Brothers for Life leaders on Wednesday".
In referring to the so-called "mega-trial" reference is made to evidence that will not be adduced in the current trial either by agreement or as a result of evidentiary and other rulings made to ensure that the trial is a fair one. There are also blanket assertions of ballistic and other forensic links between the crimes, all of which are to be subject of evidence in the trial and may be subject to significant dispute.
The foregoing is little more than an overview of the material. Time does not permit me to refer to all of the material. However, all that really needs to be said is that if a juror read all of this material, it is hard to imagine that they would not be influenced by it.
As I have said, more recent articles (as recent as last Sunday's Daily Telegraph) were tendered. This included an article about the retiring policeman Nick Kaldas and another relating to new procedures introduced into the Bail Court designed to create efficiency but portrayed as being introduced to reduce judge shopping. Each of these articles has some reference to the Brothers for Life gang. However, as I have said, relative to the historical material (and by historical, I mean material that is six months old and older) this recent material is unlikely to impact upon a jury even if it were brought to their attention directly.
Apart from a decision of Woods QC DCJ in R v Reeves (No 3), counsel did not refer to any New South Wales case where it has been held that there should be a trial by judge alone as a result of pre-trial publicity. Indeed, as I wrote in R v Simmons (No 4), "overwhelmingly, it has been held that the prejudice identified in the application is capable of being overcome by direction to the jury". I referred to the cases of R v Abrahams at [54]-[60], R v Dean at [65], R v King at [60]-[65] and R v McKnight at [31]. In R v King, Bellew J set out the general principles that apply at [62]-[64].
The case of R v McNeil can now be added to the list of cases referred to in the last paragraph. McNeil was a one punch murder case which attracted significant publicity in the aftermath of the death of the victim. McNeil was charged with murder. Justice Johnson was asked to make an order for a trial by judge alone. His Honour set out both the nature and detail of the material from [52]-[62]. That description culminated in a fictional Facebook page wherein the accused was described as a coward and scum in the following examples of posts to the Facebook page: "Feed the coward to the pigs. This scum is doing min 10 years if not I'm starting a riot on the streets." (11 January 2014) "Give him life in jail make the coward suffer. Death is the easy way out." (12 January 2014) "Fucking parasite loser piece of shit. Too scared to put his case to the people so hoping for some soft judge to let him off. Cunt." (12 February 2015)
Justice Johnson went on to set out the fact that there was also available to any juror caring to access it, comments by the New South Wales Attorney General relating to the case. His Honour then set out the relevant law from [64]-[69].
By reference back to the description given by Harrison J in R v Abrahams to similar material, his Honour described the material on the internet as the "irrational and suspect musings of faceless people intent on mischief". His Honour accepted at [72] that the material was "prejudicial to the applicant in a number of respects, including reference to his criminal history". His Honour noted that the publication of the criminal history of an accused person has been held to attract the law of contempt but also observed that the publication on the internet of an accused's criminal history "is not regarded necessarily as being sufficient to establish bias". His Honour referred to R v K [2003] NSWSC 406; A Crim R 446 at [67] and R v King [2013] NSWSC 448; 228 A Crim R 406 at [60].
Johnson J referred at [66] to the lapse of time between the media publicity and the trial itself and noted that it was a significant factor: "66. In Montgomery v HM Advocate [2003] 1 AC 641, Lord Hope of Craighead said at 673: 'Recent research conducted for the New Zealand Law Commission suggests that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal: Young, Cameron & Tinsley, Juries in Criminal Trials: part Two, vol 1, ch 9, para 287 (New Zealand Law Commission preliminary paper no 37, November 1999). The lapse of time since the last exposure may increasingly be regarded, with each month that passes, in itself as some kind of a safeguard. Nevertheless the risk that the widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible. The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdicts'."
I should conclude my discussion of R v McNeil by observing that a jury found the accused not guilty of murder. He was convicted of manslaughter, an offence in relation to which he had entered a plea of guilty. See R v McNeil (No 4) [2015] NSWSC 1198.
The decision of Judge Woods QC in R v GSR (No 3) concerned a most extraordinary case. The facts are more clearly and fully exposed in the decision of the Court of Criminal Appeal: Reeves v R; R v Reeves [2013] NSWCCA 34. The circumstances in which the trial Judge ordered a judge alone trial included that there were back-to-back trials and that the first trial had attracted enormous and extensive publicity. The judge described it as "poisonous and inflammatory", "extensive and disturbing" and including some "very nasty epithets" such as "rogue doctor" and "Butcher of Bega". The appeal judgment shows that the first trial (involving infliction of grievous bodily harm of a patient's vulva) ended on 10 March 2011 and that the Judge alone trial followed almost immediately thereafter (judgment was delivered on 14 April 2011).
I should also make reference to the decision of Arthurs v State of Western Australia [2007] WASC 182 in which Martin CJ granted a trial by judge alone based on prejudicial pre-trial publicity. The applicant was charged with murder as well as sexual assaults and the unlawful detention of an 8 year old. The case had attracted a great deal of publicity, the nature and extent of which is set out in the judgment at [6]-[32]. His Honour found that there were five features of the publicity that made it exceptional. First, an "exceptionally prominent" front-page article in the West Australian referred to communications between the newspaper and the accused and his mother and had a "number of unusual features". Second, there was a "sensational and untrue" rumour that the accused had been "one of the two boys responsible for the death of James Bulger in Liverpool". Third, that rumour persisted on the internet even after it was quashed in the "printed media". Fourth, there was common reference to "the other matter". Fifth, there was a television broadcast about the accused which gave rise "to an arguable case of contempt". His Honour described the media publicity at [86] as "extensive, continuous and in some respects extraordinary" and also took into account at [88] the subject matter of the offences which was "likely to test the emotional strength and fortitude of any person required to consider it in detail". His Honour concluded by observing at [93] that "it does not seem to me that in the particular circumstances of this case there are any particular factors which would support a trial by jury".
As sensational and unbalanced as the media coverage of the present case is, it is not as "extraordinary" as that involved in the cases of Arthurs and Reeves. Further, while the allegations of gangland violence and lawlessness are apt to arouse prejudice, the subject matter is not as emotive as that involved in the kidnapping, rape and killing of an 8 year old (Arthurs) or allegations of indecent assault and genital mutilation committed by a trusted gynaecologist (Reeves).
Most of the media publicity surrounding the present case occurred at the time of the shootings and on the arrest of the accused, that is in late 2013 and early 2014. After the sentencing of witness L, there were a number of articles including, most recently, the article in September 2015. However, even that article will be around six months old by the time that the trial proper commences. It is unlikely that any juror who had been exposed to such material at the time would have anything other than a vague and general recollection of the details. Further, any juror who might have a more detailed recollection such that they felt that they could not bring an impartial mind to bear could be identified in the course of the pre-empanelment procedures in which the Crown Prosecutor will identify the nature of the charges and evidence and I will instruct the panel that if any individual has concerns as to their ability to bring an unprejudiced and impartial mind to bear upon the issues they should seek to be excused.
I have made orders today that some of the more prejudicial material be removed from the internet: R v Qaumi & Ors (No 16) (Internet "Take Down" Orders). However, there will remain on the Internet a body of material that may be prejudicial to the accused. However, the concerns that the jury might access the material at this stage can be alleviated by two measures.
First, at the conclusion of hearing arguments on the trial by judge alone application, I made orders (with the consent of the parties) that the names of the accused not appear in court lists between now and the commencement of the trial. That means that any potential juror who receives a jury summons will be unable to make any enquiry or Google search or similar internet searches between now and when they attend the Downing Centre. In particular, on the day that they arrive here they will not see a court list with the names of the accused. That will reduce or dispose of any real risk of a member of the jury doing research on the accused whilst awaiting empanelment.
As to the 15 individuals who are sworn or affirmed as the jury, the risk that they might access such material during the currency of the trial can be dealt with by the clear and firm directions. Such directions will include reference to the provisions of s 68C of the Jury Act. The jury will be reminded that making any enquiries including internet enquiries for the purpose of obtaining information about the accused on matters relevant to the trial is a criminal offence carrying the possibility of imprisonment.
Further, the directions will make it plain to the jury that the material that is known to be on the internet is both unfair and misleading. The jury will also be reminded that if they become aware of any other member of the jury involving themselves in internet research or similar they must bring such matters to my attention.
I do not take lightly the material published on the internet or the earnest and convincing submissions made by counsel for the accused. However, I have concluded that a combination of safeguards as set out above is such that there is not a great likelihood that any member of the jury will be infected with the kind of prejudices about which the accused have expressed concern
There have been many high profile criminal trials conducted in New South Wales in recent years. Whilst Senior Counsel for Mumtaz Qaumi suggested that a review of those cases shows that they almost universally result in convictions, the reality is to the contrary. Bell J (as her Honour then was) conducted a very similar case to the present trial in 2006. In spite of widespread publicity and highly prejudicial evidence about similar gangland conduct, the (alleged) leader of that criminal group was in fact acquitted of one of the principal charges: see Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 at [5]. This demonstrated the capacity of the jury both to distinguish between accused and charges and also to overcome matters of prejudice.
Similarly, a recent trial conducted in this Court concerning a notorious murder resulting from an affray between rival bikie gangs played out at the Sydney Airport, resulted in almost all of the accused being acquitted: R v Hawi [2014] NSWSC 837.
Finally, and most recently, Justice Fullerton presided over the trial of Robert Xie over many months last year. That trial involved the bloody killing of four of the accused's relatives and was subject to intense pre-trial publicity. The reporting of the trial was both dramatic and prone to evoke strong emotional reactions. Nevertheless, the jury was discharged when it indicated that it could not agree upon its verdict.
These cases demonstrate that, for the most part, judicial faith in the integrity and robustness of the jury system is well placed. The scepticism expressed by counsel, members of the academia and from time to time by judges like myself is a healthy part of the dialogue but the fact remains that the law provides a number of safeguards against a jury being influenced by prejudice and operates on the assumption that a jury will follow and comply with directions.

PREJUDICIAL MATERIAL TO BE ADDUCED IN THE CROWN CASE

In addition to the prejudicial pre-trial publicity to which I have just referred, each of the accused points to evidence to be adduced by the prosecution that will prove (if it is accepted) that the accused was involved in criminal activities beyond those alleged in the individual counts in the indictment. The accused submits that, taken together, the prejudice created by this evidence and the pre-trial publicity is incapable of being overcome by direction. Accordingly, it is submitted that the interests of justice point in the direction of a judge alone trial.
In R v Qaumi & Ors (No 3), I referred at [98]-[102] to the fact that the Crown intended to lead a body of evidence establishing a number of criminal acts on the part of each of the accused which are not subject to specific charges in the indictment. When the case management directions were originally made, one of the pre-trial issues that was identified was the question of the admissibility of such uncharged acts and, in particular, whether such evidence should be adduced as tendency evidence under s 97 of the Evidence Act. In the course of the arguments on separate trials and severance, all of the accused with the exception of Mohammad Zarshoy accepted that it was not necessary to determine the tendency issue in advance of the trial. Mr Zarshoy indicated that the matter should be resolved in order to determine the question of severance and separate trials. In my judgment on severance at [104], I indicated a preliminary or provisional position that the evidence sought to be led against Mr Zarshoy would not be admitted as tendency evidence. In relation to the remaining accused, the matter remained unresolved. However, I made it clear that the amount of evidence of this nature would be confined to that necessary to prove the particular counts: "157. What I do not propose to allow is a trial in which wide-ranging evidence is adduced to establish the participation offences beyond that which is admissible to establish counts 11-29 and 32-34. If the Crown elects to limit the evidence to establish participation to those matters, I would not sever those counts. If the Crown elects to conduct the participation offences by reference to the full extent of the criminality that is disclosed in the various timelines and chronologies, I would be inclined to the view that the accused would be embarrassed or prejudiced in the conduct of their defence of the substantive charges."
After that judgment was delivered, counsel for each of the accused consulted over a number of days with the learned Crown Prosecutors. Those consultations enabled the parties to reach agreement as to the body of evidence that might generally be called evidence of "uncharged acts". After many days of consultations, I understand that the parties reached agreement as to what parts of the evidence will, and will not, be adduced by the Crown. I have not been provided with all of the details but assume that the decisions that have been taken by those representing the accused have been taken advisedly and on a principled basis. At one stage I was provided with exhibit EE, containing a list of incidents or areas of evidence relevant to this question. In the course of argument on the present application, the Crown Prosecutor explained that he had abandoned a significant amount of the material enumerated in exhibit EE. In fact, he has abandoned reliance on all of the material in item 3 of that document "Extortions/stand over".
I am not privy to the precise agreements that have been reached between counsel. While the Crown has obviously made significant concessions, I understand that it remains the case that a body of evidence will be adduced that proves criminality outside of the substantive charges levelled against each of the accused. This includes evidence going to the membership, hierarchy and aims of the group, evidence relating to drug dealing and attempts to take over other dealer's "runs", evidence relating to the history and ownership of particular firearms and evidence of a number of assaults or threats directed by the leaders of the group (in particular, Farhad Qaumi) to other members of the group. Presumably, the agreements reached by counsel accord with the observations I made in R v Qaumi & Ors (No 3) and there has been no application to revisit the question of severance of the participation offences.
This evidence may have relevance to the issues in a trial in a number of ways. First, it may be directly relevant to the Crown's case in relation to the charges of participation in a criminal group. Next, parts of the evidence may have relevance in different, less direct, ways. For example, the evidence of assaults, threats and intimidation led against Farhad Qaumi has relevance to explain the context in which the events on the indictment occurred. In particular, it is conceded that the evidence is relevant to provide the jury with a proper understanding as to why the members of the group acted as they did, following directions, no matter how extreme. Finally, the evidence in some instances may be admissible as tendency evidence. As I have said, with the exception of Mohammad Zarshoy, the parties agreed that the evidence could be admitted in the trial with a decision taken later as to which parts, if any, of the evidence would be left to the jury as tendency evidence.
On whatever basis the evidence is left to the jury, the accused contend that the nature and extent of the evidence of criminality outside of the specific counts in the indictment is such that it will be impossible to direct the jury in such a way that it will proceed in a dispassionate and unprejudiced way.
I am unable to accept that submission. It is not uncommon for evidence of uncharged acts to be placed before a jury and there are many bases upon which that occurs. Provided the jury is given clear and careful direction as to the limitations of the use of the evidence, there is no real danger of the trial miscarrying.
Senior Counsel for Mumtaz Qaumi seeks to call into aid the decision in R v Simmons (No 4). He submits that the circumstances that led me to order a judge alone trial in that case are relevantly similar to the circumstances of the present case. An analysis of the circumstances prevailing in R v Simmons (No 4) and a comparison of those circumstances with those prevailing in the present case shows that this submission cannot be sustained. The cases are completely different.
In R v Simmons (No 4), the accused made admissions to a number of undercover police officers that he had killed the alleged victim by pushing him from a cliff. He did so in circumstances where the undercover police had tricked him into believing that they were part of a criminal organisation into which he was to be recruited. All, or the overwhelming majority, of his admissions were recorded by surveillance (listening) devices in the course of his conversations with the undercover police officers. His defence was to embrace the things that he had said but to explain them away by indicating that he was a drug addict and a drug dealer who needed the kind of money that was being provided by the undercover operatives in order to feed his habit and maintain his business of drug dealing. He pointed to other admissions relating to an earlier assault on the same victim in which he (the accused) had plainly exaggerated his actions to sustain an argument that his admission to pushing the victim off a cliff was no more than a boast calculated to "big-note" himself in the eyes of the criminal gang into which he was seeking to gain entry: see generally R v Simmons (No 4) at [116]-[117] and R v Simmons (No 7) [2015] NSWSC 574.
One critical feature was that the circumstances were such that the accused counsel was placed in a position where he was required to produce evidence of bad character in order to conduct the defence. In Redman v R Adams J at [16] noted: "16. Important distinctions between prejudicial material proposed to be relied on by the Crown on the one hand and prejudicial material proposed to be introduced by an accused. It is an important principle of justice that an accused person be able to defend himself or herself by all forensically available means and should not, without good reason, be forced to make a choice between the risk that a jury will be unfairly prejudiced against him or her on the one hand and censoring his defence on the other."
The present case is very different. For one thing, I am not aware at this stage precisely what defence the accused intend to conduct. The Crown has postulated that the accused may be mounting "defence/s" including self-defence, provocation and duress. This is relevant in another way to this application but for present purposes it is simply worth noting that the situation in R v Simmons (No 4) was entirely different because it was clear, at the time of addressing the question of whether the trial should be by jury or judge alone, that the accused was placed in a position of accepting a large body of evidence not adduced as tendency but capable of being used in that way and forced to elicit evidence of his own bad character in order to mount his defence. While the general principles that I enunciated in the judgment in R v Simmons (No 4) are equally applicable to the present case, the factual circumstances and relevant considerations to the interests of justice under s 132 of the Act are completely different.

Application of Objective Community Standards

Subsection 132(5) provides: "Without limiting subsection (4): The court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, in decency, obscenity or dangerousness."
The central argument underpinning the Crown Prosecutor's objection to a trial by judge alone is that s 132(5) is engaged in the circumstances of the present case. The Crown Prosecutor submits that the conduct of the case to date suggests that some or all of the accused may be raising defences which give rise to the application of objective community standards. The Crown says that it may be inferred that some of the accused intended to raise a question of self-defence. In particular, based on the material before the Court and the enquiries made on behalf of some or one or more of the accused, it appears that the accused (or some of them) will contend that the shooting directed at Mohammed Hamzy resulted from information received from witness M that Mr Hamzy intended to execute Farhad Qaumi.
The Crown said that if it was not the case that the accused intended to raise the issue of self-defence, counsel should make that clear at this stage. He noted in written submissions that "on a number of occasions the Crown has mentioned in Court that such issues may arise in the trial and no counsel for any of the accused has risen to state otherwise". In the face of that challenge, the accused did not eschew raising defences that gave rise to the factual issues requiring the application of objective community standards.
In the course of argument, Senior Counsel for Farhad Qaumi acknowledged that he had "deliberately not" risen to eschew the issue of self-defence and agreed that I could "safely proceed on the basis that it is at least possible that those issues will be live ones in the trial" (T 1225). Mr Stratton SC was prepared to say that duress would not be an issue in Farhad Qaumi's case (a concession that came as no surprise given the evidence in the case). However, that concession merely highlighted the Crown's point that both self-defence and provocation may be raised by or on behalf of Farhad Qaumi.
When I raised with Senior Counsel for Mumtaz Qaumi, the fact that "I don't know much about the defence case", Mr Young SC said that "Mumtaz Qaumi is in exactly the same position as Farhad so far as what Mr Stratton SC told you is concerned." (T 1245).
Jamil Qaumi's written submissions included at paragraph 5 that "[i]t is not disputed that the anticipated defences to be raised will contain matters that require the application of community standards" (emphasis in the original).
Counsel for Mr Kalal said "I would concede at this point it would appear that an element of duress will be raised in the case in respect of Mr Kalal" (T 1234). However, Ms McSpedden submitted that this did not give rise to "a question of community standards".
Counsel for Mr Zarshoy, in addition to raising the philosophical issue of whether "where we are and what we're doing may all be an illusion" (T 1245), relied on the pre-trial publicity but made no submission as to what the issues might be in his client's case. He neither confirmed nor denied that matters involving the application of community standards might arise.
There was no discussion as to whether provocation may arise but no counsel refuted the suggestion, made in the Crown's written submission, that provocation may be raised as an issue in the trial.
Section 418 of the Crimes Act 1900 (NSW) sets out the circumstances in which self-defence is available. It is in the following terms: "418 Self-defence when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them."
Section 421 of the Crimes Act provides: "421 Self-defence-excessive force that inflicts death (1) This section applies if: (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter."
These provisions make it clear that, if self-defence is an issue in the trial, the tribunal of fact will be called upon to determine whether the actions of the accused were a "reasonable response" to the threat that the accused perceived existed. The question of "reasonableness" is one of the specific matters referred to in s 132(5) that "requires the application of objective community standards".
Similarly, if the defence of provocation is raised, issues requiring the application of objective community standards will arise. Section 23(2)(d) of the Crimes Act 1900 (NSW) requires a tribunal of fact considering a defence of provocation to determine whether the "conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm". It seems to me that a determination what an "ordinary person" might do in response to provocative conduct may be a matter involving an application of community standards. But even if I am wrong about that, it is nevertheless safe to proceed on the basis that a jury is the preferable tribunal to make judgments about the hypothetical reactions of the ordinary person.
In the context of a decision under s 132 as to whether it is in the interests of justice to order that a trial be conducted by judge alone, the question of duress raises more complicated issues. The question of duress involves factual inquiries as to whether a threat was made, the nature of that threat and whether the accused acted as he did because of the threat. These are questions of fact and require a consideration of the subjective state of mind of the accused. However, the tribunal of fact must also consider whether "a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to the threat in the way that the accused did": see R v Pimentel [1999] NSWCCA 401; 110 A Crim R 30 at 37. The precise content of this test was considered in R v Abusafiah (1991) 24 NSWLR 531 at 539-541 (Hunt J). His Honour noted that, like provocation, the defence "introduce[s] an objective test of reasonableness" (s 541A). However, he went on to note that "discussion of the objective test appears sometimes to have overlooked that what is involved is an evaluation of the behaviour of the accused by reference to a standard of reasonableness not a prediction as to the way in which particular individuals may behave" (s 542).
Trying to fit the nuances and complications of the objective aspects of the defence of duress into questions raised by s 132(5) of the Act is a little like fitting the proverbial square peg into a round hole. I am not certain that s 132(5) is directly engaged in that the questions raised do not directly raise questions of objective community standards but, rather, give rise to issues around the possible reactions of a hypothetical person of reasonable firmness. However, even considered in that light, there is something to be said for the proposition that this is the kind of issue where the "interests of justice" militate in favour of judgment by a lay jury.
However, the raising of duress by one of the accused is not a matter of great moment in an assessment of whether the overall interests of justice point towards a trial by jury. Apart from the question of whether duress raises questions of objective community standards, there is also a countervailing consideration. It could be argued (although it was not) that Farhad and Mumtaz Qaumi's case for a judge alone trial is stronger because of the prejudice that may arise if Mr Kalal calls evidence that he acted under duress as a result of their conduct.
Taking all of those matters into account, I have given very little weight to the fact that Mr Kalal may raise duress as an issue in the overall assessment of whether it is in the interests of justice to make an order for a trial by judge alone.
I proceed on the basis that s 132(5) of the Act is engaged. I do not understand counsel to have submitted to the contrary. The fact that factual issues will arise requiring the application of objective community standards is a matter militating in favour of trial by a jury. However it is not determinative of the application and, as the opening words of ss (5) demonstrate, the prevailing question remains whether the Court considers that it is in the interests of justice to make an order for the accused to be tried by judge alone. Sub-section 132(5) provides some content to that question by providing a discretion ("may") to refuse to make an order if it considers that factual issues in the trial will require the application of objective community standards. The provision makes it clear that if there is to be such an issue that is a matter that may influence the decision as to what is in the interests of justice. However, in a case such as the present, it is one matter to be taken into account along with a number of others.
I have taken the matter into account in that way. The presence of such questions in the trial is an important factor militating against making the order sought by the accused.
Further, as submitted by the Crown, the nature of the self-defence issue that is expected to arise is an unusual one. This is not a case that could be described as a typical self-defence case. Rather, the issue will arise in factual circumstances where one criminal group under perceived attack from another criminal group decided to make a pre-emptive strike against the attacking criminal group in order to protect itself and its leader. Was that a reasonable response to the threat? Was it a proportionate response? Those are questions that, in the absence of extremely compelling countervailing circumstances, ought to be determined by a jury randomly selected from the community.

Conclusion

I have considered all of the matters to which reference has been made in the course of the above analysis. There are a number of compelling features of the case pointing in the direction of a trial by judge alone. These include the nature and extent of the pre-trial publicity, the complexity of the trial and evidence of criminal activity outside the substantive charges on the indictment and the fact that five individual accused, on the advice of experienced lawyers, believe that they cannot receive a fair trial before the jury.
Against that, there are a number of safeguards that can ensure that the jurors will act in accordance with their oaths and affirmations and will not be influenced by matters of emotion and prejudice. The law generally operates on the assumption that the juries obey and act upon the directions provided by the trial Judge. Further, the body of evidence of uncharged criminal acts has been subject to lengthy discussion and agreement between experienced counsel and (no doubt) accords with the judgment delivered on the severance of counts on the indictment. Further, the most significantly prejudicial parts of this body of evidence will not be adduced by the Crown or have been excluded by ruling: see R v Qaumi & Ors (No 4) and R v Qaumi & Ors (No 6). Finally, I consider that factual issues will arise that require the application of objective community standards.
Taking all of those matters into account I have reached the conclusion that it is not in the interests of justice to order that the present trial to be conducted by judge alone.
The application by each of the accused for a trial by judge order under s 132 Criminal Procedure Act 1986 (NSW) is refused.

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: 17 April 2018

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