I am going to make some brief remarks about the case management concerning next Thursday and Friday's argument concerning the admissibility of evidence sought to be introduced by the accused Mohammed Kalal. These remarks and the written judgment that will follow should be read in the knowledge that counsel currently appearing for the accused Mohammed Kalal did not formally come into the case until 30 March 2016.
On 27 July 2015, nine accused were arraigned on a total of 36 counts. Each accused pleaded not guilty. Mohammed Kalal was represented at the arraignment by Senior Counsel who no longer appears in the trial. I made a number of case management orders, including an order for a defence response pursuant to s 143 of the Criminal Procedure Act 1986 (NSW). Senior Counsel was present when that order was made and copies of the orders were provided in multiple hard copies to the parties.
Order 4 in the case management orders made that day was in the following terms:
"Each accused is to give notice of its response in accordance with s 143 on or before Friday 25 September 2015. Pursuant to s 143(2), it is ordered that the response is to include, if and where relevant, the following matters:
(a) A copy of any report, relevant to the trial, that has been prepared by a person whom the accused person intends to call as an expert witness at the trial,
(b) If the prosecutor disclosed an intention to adduce evidence at the trial that has been obtained by means of surveillance, notice as to whether the accused person proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required,
(c) Notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor,
(d) If the prosecutor disclosed an intention to tender at the trial any transcript, notice as to whether the accused person accepts the transcript as accurate and, if not, in what respect the transcript is disputed,
(e) Notice as to whether the accused person proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor,
(f) Notice of any significant issue the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials for the charges,
(g) Notice of any consent the accused person proposes to give under section 184 of the Evidence Act 1995."
Section 143 of the Criminal Procedure Act is in the following terms:
"143 Defence response
(1) For the purposes of section 141 (1) (b), the notice of the defence response is to contain the following:
(a) the name of any Australian legal practitioner proposed to appear on behalf of the accused person at the trial,
(b) the nature of the accused person's defence, including particular defences to be relied on,
(c) the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution's notice under section 142) and with which the accused person intends to take issue,
(d) points of law which the accused person intends to raise,
(e) notice of any consent that the accused person proposes to give at the trial under section 190 of the Evidence Act 1995 in relation to each of the following:
(i) a statement of a witness that the prosecutor proposes to adduce at the trial,
(ii) a summary of evidence that the prosecutor proposes to adduce at the trial,
(f) a statement as to whether or not the accused person intends to give any notice under section 150 (Notice of alibi) or, if the accused person has already given such a notice, a statement that the notice has been given,
(g) a statement as to whether or not the accused person intends to give any notice under section 151 (Notice of intention to adduce evidence of substantial mental impairment).
(2) The notice of the defence response is also to contain such of the following matters (if any) as the court orders:
(a) a copy of any report, relevant to the trial, that has been prepared by a person whom the accused person intends to call as an expert witness at the trial,
(b) if the prosecutor disclosed an intention to adduce evidence at the trial that has been obtained by means of surveillance, notice as to whether the accused person proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required,
(c) notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor,
(d) if the prosecutor disclosed an intention to tender at the trial any transcript, notice as to whether the accused person accepts the transcript as accurate and, if not, in what respect the transcript is disputed,
(e) notice as to whether the accused person proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor,
(f) notice of any significant issue the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials for the charges,
(g) notice of any consent the accused person proposes to give under section 184 of the Evidence Act 1995."
In purported compliance with that order, the solicitors for Mr Kalal filed a one-page document under the law firm's letterhead in the following relevant terms:
"2. The accused is pleading not guilty on the basis that he denies all the facts, matters and circumstances relied on by the Crown;
3. The defence at this stage takes issue with all of the facts, matters and circumstances said to be relied on by the Crown."
In November and December 2015, a number of pre-trial issues were ventilated. The accused were permitted a Basha inquiry in relation to a number of informant or rollover witnesses, see R v Qaumi & Ors (No 2) (Basha Inquiry) [2015] NSWSC 1715. In addition to matters permitted under the Basha inquiry, Senior Counsel for Mr Kalal sought and was granted the opportunity to ask questions relevant to the question of whether there should be a separate trial of his client.
The Basha inquiry and associated voir dire into the question of separate trials took place from 19 November 2015 to 3 December 2015.
From 8 to 10 December, submissions were made on the question of severance of counts and separate trials of accused.
The accused Farhad Qaumi sought severance of a number of counts but Senior Counsel on his behalf specifically eschewed any application for a separate trial from any one or other of his co-accused. I reserved on the issue over the Christmas break.
On 3 February 2016, judgment was delivered on the issue, see R v Qaumi & Ors (No 3) (Severance and Separate trial) [2016] NSWSC 15. Relevantly, Mr Kalal's application for a separate trial and consequent remitter to the District Court in accordance with an undertaking made by the Director of Public Prosecutions to the Chief Justice was refused.
On 18 and 19 February 2016, I heard arguments relating to a number of evidentiary objections, including an objection by Farhad Qaumi to certain evidence proposed to be led by the Crown. That evidence suggested that Farhad Qaumi had boasted to members of the Brothers for Life Blacktown that he had previously committed two (or three) murders and had been acquitted.
In the course of that argument, Senior Counsel raised, as far as I can tell for the first time, that he had an interest in the admissibility of the evidence because a defence of duress may be raised. I am going to set out a passage from the transcript at 907:
"[REDACTED] [1] SC: Can I indicate your Honour that I have an interest in this argument on behalf of Mr Kalal. I have indicated this to Mr Stratton and to the Crown, it does not come as a surprise. As you know I am withdrawing but I can put it this way. We would want left open, at the least position, an opportunity to cross-examine witness A, witness D and witness I in respect of these conversations said to have occurred, or this conversation said to have occurred not in respect of proving the content of the conversation but rather the fact that it was said as a mechanism for dominance and fear and duress. Having told your Honour that really I don't want to be heard much more on the topic other than to indicate that in our submission it should be kept open, if it does not come in the Crown case for it to be allowed in Mr Kalal's case."
The reference in that passage to Senior Counsel withdrawing was a reference to the fact that he intended to withdraw from the trial, as I understand it for professional reasons unrelated to the case. He had advised me of that some days earlier and indicated that a barrister, who is a senior junior, was to take his place with the consent of Mr Kalal and his solicitor.
It is worth repeating that until 18 February 2016, there had been no suggestion that Mr Kalal was to mount a defence of duress. The defence disclosure suggested that the defence was that Mr Kalal was not involved. There is no other way that I can see of reading it. There was no cross- examination on the issue in the course of the voir dire or "Basha" inquiry, even though the matter is obviously relevant to the question of whether there should be separate trials. There was no submission on the issue either orally or in writing in the course of the applications for separate trials or severance of counts on the indictment.
On 24 February 2016, I ruled the evidence relating to Farhad Qaumi boasting about two (or three) previous murders to be inadmissible and published reasons for that decision, see R v Qaumi & Ors (No 6) [2016] NSWSC 115.
The position of Mr Kalal, as stated by Senior Counsel on 18 February, was noted and reserved in paragraph 21 of that judgment. A number of pre-trial issues continued to be ventilated and the commencement of the trial proper was delayed. The matter with which I am presently concerned was not raised in any context.
One of the issues ventilated was whether the accused should be tried by jury or judge alone. The issue of duress and the kind of evidence that might be led in support of that defence was at least potentially relevant to that question and yet at no stage was the matter raised with any degree of certainty. [2]
On 24 March 2016, in the course of submissions on an unrelated issue, Mr Kalal withdrew his instructions from the barrister that had taken over on 22 February 2016; see R v Qaumi & Ors (No 18) (Stay of Counts 8 and 9) [2016] NSWSC 351 and transcript pages 1343 to 1344. At that stage, a jury pool of more than 200 people had been summoned to attend the Court on Monday 4 April 2016. A principal of the law firm appeared on the 24 March 2016 after counsel advised me that her instructions had been withdrawn. He indicated that he hoped to find alternative counsel by the time that the trial commenced. He told me that he and his law firm had been in the case "since the beginning".
On 30 March 2016, Mr Clarke of counsel appeared for the first time. He was in an unenviable position. At that stage, there remained a problem with Legal Aid funding and he was confronted with a very large brief. On the other hand, his solicitors had been in the matter for many months or years and presumably were well on top of the material and issues. Mr Clarke referred to his client's defence and what I had said in paragraph 21 of R v Qaumi & Ors (No 6).
On Friday 1 April 2016, the matter was listed for final submissions on the proper approach to the empanelment procedures. Mr Clarke indicated then that part of his client's defence would involve canvassing matters of duress.
Since the jury was empanelled, Mr Clarke has continued to gain greater familiarity with the brief. He opened to the jury an appropriately circumspect way. He did not say the word "duress" but he did make reference to the distinction between "leaders" and "followers" and raised what he called the issue of whether his client was acting voluntarily. I can only assume that this was a cautious way of flagging the issue of duress.
It is now clear that Mr Kalal seeks to adduce evidence that he was aware of boasts made by Farhad Qaumi that he had "beaten" two (or three) previous murder charges. It seems that this will go beyond the evidence of the three witnesses to whom R v Qaumi & Ors (No 6) related.
Senior Counsel for Farhad Qaumi has indicated that he will "ferociously" object to such evidence. The precise content of Mr Kalal's defence and the detail of the evidence is not presently known. Meanwhile, there is a jury of 15 and we are in day 8 of the trial before the jury. Over 30 witnesses have already been called and the matter is proceeding quickly and efficiently.
The issue must be resolved before Mr Clarke cross-examines the informant witnesses, or at least some of them. It is expected that those witnesses will start to give evidence in the next couple of weeks.
Mr Stratton canvassed the possibility of separating Mr Kalal and his trial from the other accused. Mr Kalal makes no further application for separate trials. Whether any of this will impact on the other three accused is not presently known because the details of what Mr Clarke seeks to do remain somewhat opaque. It is estimated that the argument will take about a two days.
Yesterday, I told the jury that a legal issue would be discussed in its absence on Thursday 21 and Friday 22 April 2016 and that is when I propose to hear the arguments on this issue.
It is necessary to make further case management orders to ensure that the argument will proceed quickly and efficiently. It needs hardly be observed that if Mr Kalal's former barristers and lawyers had provided an adequate defence response or raised this matter at some stage during the lengthy pre-trial hearing, this would not be necessary and the flow of the jury trial would not be interrupted. [3]
I am considering whether any action should be taken in that regard and whether, in particular, I should call on submissions as to why the matter ought not to be referred to appropriate professional bodies.
Accordingly I make the following case management directions:
1. On or before 10.30am on Monday 18 April, the accused Mohammed Kalal is to file and serve on the other parties an amended defence response pursuant to s 143 of the Criminal Procedure Act 1986 (NSW). Such response is to include, where relevant, the matters referred to in s 143(2) of the Criminal Procedure Act 1986 (NSW).
2. On or before 10.30am on Monday 18 April, the accused Mohammed Kalal is to file and serve on all affected parties the following documents:
1. A notice containing,
1. The names or the pseudonyms of all witnesses to which relevant propositions concerning statements made by the accused Farhad Qaumi or others are to be put;
2. (ii) The propositions to be put, in general terms;
3. (iii) Whether it is to be suggested that Mr Kalal heard the statements attributed to Farhad Qaumi or others;
4. (iv) The evidentiary basis - that is, reference to material in the prosecution brief or material to be adduced by the accused - upon which items (a)(1), (a)(2) and (a)(3) are based;
5. (v) The identity of person or persons said to have placed him under duress;
1. A photocopy of extracts of the brief referred to in (2)(4) above and any other documents proposed to be tendered on the voir dire;
2. Written submissions directed to but not limited to the following issues:
1. Identification of the first time that the accused indicated to the Court that the defence of duress was to be raised and an explanation for the failure to identify that defence earlier;
2. The relevance of the failure to comply or adequately to comply with the case management orders made on 27 July 2015 by provision of inadequate and misleading defence reply;
3. The relevance of the material referred to in (2)(a) above;
4. The probative value of the evidence;
5. Whether Farhad Qaumi is a party in terms of the application of s 135 of the Evidence Act 1995 (NSW);
6. The power of the Court to separate the trials at this stage of proceedings;
7. The desirability of the Court to do so;
8. If the trials are to be separated, the most appropriate orders to be made;
1. Any other party, accused or Crown who seeks to be heard in opposition to the proposed cross-examination or admission of the evidence, or on the issue of separating the trials, is to file and serve written submissions by 9am on Thursday 21 April 2016, such submissions to indicate whether there would be any consequent application for discharge of the jury if orders for separation of the trials is made at this stage.
2. Confirm the matter is listed for oral argument on Thursday 21 April 2016 with an estimate of one and a half days.
3. The cross-examination on behalf of Mohammed Kalal of any relevant witness is deferred until determination of this issue.
[2]
Addendum
After this judgment was delivered, counsel made submission as to the form of the above orders and the orders were varied: see R v Qaumi & Ors (No 24) [2016] NSWSC 505 at [16].
Further, after considering the matter further, I have decided to take no action of the kind contemplated above at [28]. I have come to that decision in spite of the fact that the failure to raise the matter clearly and unambiguously has created delay and additional expense. Further, legal practitioners must be aware that the case management provisions in ss 141-144 of the Criminal Procedure Act must be taken seriously. The original defence reply under s 143 in the present case was wholly unsatisfactory. Further, it was misleading in that it suggested that the accused intended to deny participation in the shootings in spite of forensic evidence that connects him to the weapons. His actual defence is that (i) he participated in the shootings but that his will was overborne by threats by two of the co-accused and he was acting under duress and (ii) that he deliberately discharged the weapons in such a way that the victims would not be killed or injured. In spite of this, I have decided to take no further action because of the possibility that counsel may have been concerned that raising the matter would create a situation of danger for Mr Kalal and may have taken a forensic decision that they believed were necessary. I accept that there was no intentional misleading of the Court and other parties although that was the result of the inadequacy of the document filed.
[3]
Endnotes
Senior Counsel had not had an opportunity to be heard and it is in appropriate that they be named in the judgment.
The Prosecutor raised the possibility that a defence of duress may be raised and counsel for Mr Kalal was prepared to "concede at this point it would appear that an element of duress will be raised in the case of Mr Kalal" (Transcript p 1234).
No action will be taken - see ADDENDUM below at [31].
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Decision last updated: 23 November 2016