R v Qaumi & Ors

Supreme Court of NSW|2016-04-22|Before: Hamill J

Judgment

Five accused are currently on trial charged with 24 offences arising out of their alleged involvement in a group known as the Blacktown Chapter of the Brothers for Life (BFL Blacktown). Originally, nine accused were charged with 36 offences. There were 46 days of pre-trial hearing between 5 November 2015 and 1 April 2016. A jury of 15 was empaneled on Monday 4 April 2016. The trial has an estimate of four to six months. The trial proper has proceeded for twelve days. One of the accused (Mohammed Kalal) seeks to cross-examine a number of prosecution witnesses in an attempt to establish a defence that he was acting under duress by another of the accused (Farhad Qaumi). He hopes to elicit evidence that Farhad Qaumi boasted about being involved in two (or three) earlier murders and "beat" the charges. Objection is taken to this evidence by three of the accused. However those objections may be resolved, questions arise as to whether orders should be made separating the trials of one or more of the accused.
The prosecution case is that the BFL was a criminal gang involved in drug supply, extortion and other malfeasance. The present trial encompasses offences arising out of five separate shooting incidents that occurred on 28 October and 2, 4, 7 and 29 November 2013 as well as allegations of possession of guns, the large commercial supply of drugs and participating in a criminal group. The prosecution alleges that these shootings arose in the context of a "turf war" between the BFL Blacktown and another criminal gang known as the BFL Bankstown. The leader of the BFL Blacktown was the accused Farhad Qaumi while the BFL Bankstown was run by Mohamed (Hamoudie) Hamzy, also known as Little Crazy or LC.
The facts and evidence are summarised in earlier judgments: see, for example, R v Qaumi & Ors (No 3) (Severance and Separate Trials) [2016] NSWSC 15. At least part of the evidence that Mr Kalal seeks to adduce was ruled to be inadmissible as between the Crown and the Farhad Qaumi: R v Qaumi & Ors (No 6) [2016] NSWSC 115.

The issues to be determined on the voir dire and the unsatisfactory way in which those issues have arisen

Case management directions were made in July 2015 and there were extensive pre-trial hearings relating to the conduct of the trial and the admissibility of evidence. The two judgments to which I referred in the previous paragraph are of particular relevance to the questions that now arise. On 8-10 December 2015 I heard argument in relation to a variety of applications for the severance of various counts on the indictment and for separate trials. Judgment on that issue was delivered on 3 February 2016: R v Qaumi & Ors (No 3). On 18-19 February 2016 I heard argument as to the admissibility of evidence that the Crown sought to tender against the accused Farhad Qaumi that showed that he had boasted to members of the BFL Blacktown that he had previously killed two (or three) people and had "beaten" the charges. On 24 February 2016 that evidence was ruled to be inadmissible for reasons set out in R v Qaumi & Ors (No 6).
In the course of the latter argument, Senior Counsel then appearing for the accused Kalal raised the possibility that Mr Kalal may seek to elicit such evidence in his case. He said: "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." [1]
After it was indicated that the ruling as between Farhad Qaumi and the Crown would not be binding on Mr Kalal, Senior Counsel went on to say "It may be that you might just simply, so that Mr Stratton has an opportunity to deal with it, require an application to be made to do so. But for that restriction, we would want it left open."
Another barrister appeared for Mr Kalal from 22 February 2016 until 24 March 2016. At no stage during that period was the evidentiary issue raised. However, the learned Crown Prosecutor raised his suspicion that the issue of duress may be raised and counsel for Mr Kalal did not refute that suggestion saying that "it would appear that an element of duress will be raised in the case of Mr Kalal". [2] On 24 March 2016, Mr Kalal withdrew his barrister's instructions. Counsel who currently appears came into the matter on 30 March 2016. He immediately raised the matter as a possible issue but there was no application to postpone the commencement of the jury trial. [3] It was not until after the empanelment that it became clear that the matter must be resolved as between Mr Kalal and Farhad Qaumi.
Two things should be observed about this procedural history. First, the possibility that Mr Kalal might raise a defence of duress was not raised in Mr Kalal's reply pursuant to s 143 of the Criminal Procedure Act 1986 (NSW). Secondly, the fact that the Mr Kalal might mount a defence of duress - directed to one or more of his co-accused - and the evidence to be adduced in support of that defence, may have been a relevant consideration in the separate trial applications. It would also have informed the important decisions taken by the co-accused from whom the duress is said to emanate. In fact, as soon as the matter was raised clearly and unambiguously as an issue, Senior Counsel for Farhad Qaumi indicated that an application for separate trials would be made. On 18 April 2016 Farhad Qaumi filed a notice of motion seeking an order that he be tried separately to Mr Kalal. [4] Jamil and Mumtaz Qaumi subsequently made similar applications. [5]
The failure to identify the true defence and to raise the evidentiary issue as a matter clearly in need of resolution has delayed and interrupted the flow of the jury trial. After two and a half weeks, the jury has been released until after the Anzac Day and Passover long weekend, a period of seven days (three court sitting days). It also means that crucial legal rulings must be made hurriedly in order to minimise the disruption to the jury. I have recommended that the jury be paid for the days that they are not required to attend Court. This results in additional expense to the community. Finally, it has created a risk that the jury may need to be discharged. The situation is highly unsatisfactory.

Case management of the issues that arise on the voir dire

On Wednesday 13 April 2016 I made a number of orders designed to streamline the conduct of the voir dire and to clarify the nature of Mr Kalal's defence and the evidence (in general terms) that he sought to adduce in support of that defence: see R v Qaumi & Ors (No 23) [2016] NSWSC 429. These orders were designed to minimize the disruption to the jury, to put the other accused on notice as to the issues that arose, to enable them to be heard and to ensure that I had a clear understanding of the matters to be decided.
The orders provoked a response for counsel for the accused Zarshoy who complained that the directions had a capacity to infringe the accuseds' right to silence. [6] How the orders initially made could infringe Mr Zarshoy's right to silence remain mysterious. Apart from those directed to Mr Kalal, the orders simply provided the other accused with a right to be heard on the issues that arose.
Counsel for Mr Kalal also complained about the onerous nature of the directions. [7] At the heart of his complaint was the lack of time that he has had to prepare, as a result of his late entry into the trial. [8] He made it clear that he did not intend to "play detective" [9] as to the actions of his predecessors and did not appear initially to appreciate the relevance of the late notice of the issue - that is, the extent to which the evidence might be "unfairly prejudicial" (with emphasis on "unfairly") - to the other accused (and in particular Farhad Qaumi). That unfairness arose specifically because they had conducted the separate trial and severance applications in a particular way, ignorant of the fact that Mr Kalal might attempt to adduce evidence that was otherwise inadmissible in the trial and which had the potential to prejudice their right to a fair trial.
Further submissions were made that the directions went "way beyond" the specific application made by Mr Kalal and were outside of the scope of s 143 of the Criminal Procedure Act. I was unable to accept the complaints made about the directions. Section 143(1)(b) requires disclosure by the accused their defence and specifically any "particular defences to be relied on". This must encompass a defence of duress. The document originally filed not only failed to comply with the section, it also had a capacity to mislead the reader. It was relevantly in the following 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."
Accordingly, in circumstances where there was a real possibility that the trial would miscarry, it was appropriate to require Mr Kalal to file a document that complied with the section. This was particularly significant in circumstances where the content of that notice may inform decisions to be made by other counsel as to whether they should revisit decisions previously made as to whether to apply for separate trials.
Further, one of the things that is happening at this stage of the trial is that I am being asked to make an advance ruling pursuant to s 192A of the Evidence Act 1995 (NSW). It is clearly "appropriate" to make such a ruling. For that ruling to have any content and meaning, the Court must have an understanding, at least in general terms, of the evidence proposed to be elicited. Not only that, but I am also revisiting the question of whether the five accused should be tried together in light of information that ought to have been - but was not - brought to my attention in the course of the evidence tendered and submissions made on the separate trial application in December 2015.
In circumstances where those representing Mr Kalal elected to make a separate trial application on incomplete evidence, based on submissions that did not canvass a matter that had a very real potential to cause embarrassment and prejudice to the co-accused, it was imperative to make clear and precise directions requiring Mr Kalal to provide such information. However, in view of the difficulties under which counsel was labouring and in deference to the complaints made about the directions made in R v Qaumi & Ors (No 23), I amended the orders to extend and stagger the time in which to file relevant documents, to delete the requirement to explain the failure to raise the issue earlier and to relax the prescriptive nature of the written submissions. On Friday 15 April 2016 the earlier orders were replaced by the following directions: "1. On or before 4pm on Monday 18 April, 2016 the accused Kalal is to file and serve on the other parties a statement, signed by his legal practitioner, setting out: (i) The nature of his defence, including particular defences to be relied on. (ii) 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. (iii) Points of law which the accused person intends to raise. 2. On or before 10am on Tuesday 19 April, 2016 the accused Kalal is to file (and serve on all affected parties) a notice setting out: (i) The names (or pseudonym) of all witnesses to which relevant propositions concerning statements made by the accused Farhad Qaumi (or others) may be put. (ii) The propositions to be put, and evidence sought to be elicited, in general terms. (iii) Whether it is to be suggested that Mr Kalal heard the statements attributed to Farhad Qaumi (or others). (iv) The evidentiary basis (that is, reference to the material in the prosecution brief or exhibits it is anticipated are to be tendered by the accused Kalal) upon which (i), (ii) and (iii) are based. (v) The identity of the person or persons said to have placed him under duress. 3. On or before 10am on Wednesday 20 April 2016 the accused Kalal is to file and serve written submissions on the issue of admissibility of the material referred to 2 and 3 above and on the issue of separation of trials. 4. At the hearing of the argument the accused Kalal is to produce a photocopy of extracts of the brief referred to in 2(iv) above and any exhibit proposed to be tendered on the voir dire. 5. 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, may file and serve written submissions by 9 am on Thursday 21 April 2016 and otherwise will be heard orally on the issues. Such submissions should indicate whether there would be any consequent application of discharge of the jury if orders for separation of the trials are made at this stage. 6. The Court will sit with the jury until 12-30pm on Monday 18th April 2016 and Tuesday 19th April 2016. The jury will then be released until Tuesday 26 April 2016. The Court will not sit on Wednesday 20th April 2016. 7. Confirm that resolution of the evidentiary issue and any consequent application for separate trial is listed for oral argument on Thursday 21 April 2016 with an estimate of 1½ days. The Court will sit from 9-30am on each of those days. 8. Cross-examination of any relevant witness on behalf of the accused Kalal is deferred until resolution of this issue."
In compliance with Order 1 above, a document was filed on 18 April 2016 that relevantly disclosed: "2. The issues to be raised by the accused in the conduct of his defence are: (i) Duress (in respect of all counts); and (ii) Intent, in respect to all counts alleged against him, save for Counts 17 and 24 respectively. 3. The accused takes no issue with, and confirms that he was present and participated in what can be described in short form for convenience, as the Blacktown (Zakaria) and Chokolatta shootings. 4. The accused asserts that in respect of each of the two shooting incidents identified above, he participated only as a result of being subject to threats of death or serious injury to himself or members of his family. Those threats being made directly to him by the leadership of the BFL Blacktown Chapter, shortly before he was required to participate in each shooting. 5. The accused further asserts that his actions during his participation in the two shootings were based upon an intention in each case, not to murder or cause grievous bodily harm to any other person. … 7. The accused will rely on the legal principles that underpin duress."
The contrast between this document and the original Defence Response under s 143 of the Criminal Procedure Act is stark. The original document (set out at [13] above) did nothing more that put the Crown to proof and (at least) implied that Mr Kalal denied participation in the shootings.

The evidence that Mr Kalal seeks to elicit

On 19 April 2016, in compliance with order 2, Mr Kalal filed a document entitled Notice - Defence Case Particulars. This document set out the particulars of the evidence that he seeks to adduce. In oral submissions, Mr Clarke went on to put a series of propositions that constituted Mr Kalal's "case" on the issue.
The notice confirmed that Mr Kalal sought to adduce evidence that Farhad Qaumi had boasted about "having got away with three killings unrelated to those matters contained on the present indictment". The notice indicated that it was intended to put propositions concerning such boasts to six informant witnesses (A, B, D, G, I and L) who "have included material in statements/electronically recorded interviews, that are relevant to this issue" as well as: "(ii) … [o]ther Crown (roll-over) witnesses who were members of the Blacktown Chapter, if deemed appropriate to do so. That is to say, once the evidence has established that they attended the Saturday club meetings, that Farquad Qaumi was in attendance and spoke to the members at those meetings. A forensic decision would be finalised at that stage. The following witnesses may fall into this category, K, C, J and E. It is not envisaged that Witness M will fall into this category. (iii) Any defence witness called (by any party) if appropriate. That is to say once those matters as set out in (ii) above have been established first."
The "general propositions to be put to these witnesses" were identified as follows: "The general propositions to be put to these witnesses would include: 1. The fact that this boast was made at a number of club member meetings; 2. That they were made in such a way that the members would believe them to be true (whether they were in fact true or not); 3. That as part of the boast, Farhad Qaumi would direct the members to material on the internet, which included information about the incidents and photographs; 4. That it was clear from the reaction of members around the respective witness on those occasions, the attending members took the boasts seriously; and 5. Mohammed Kalal was in attendance on a number of occasions when the boast was made by Farhad Qaumi."
As to whether it is to be suggested that Mr Kalal heard the statements attributed to Farhad Qaumi, the notice stated: "In respect of the boasts that are attributed the Farhad Qaumi, the position of the accused Mohammed Kalal is that he was present at club meetings on a number of occasions and heard Farhad Qaumi make claim to the members present that he had got away with three killings. That claim was reinforced by showing members reports and photographs on the internet which appeared to support his claims. Mr Kalal was also present when Farhad Qaumi also informed members of other incidents, such as the shooting of Mustafa Shanansa and the Hamzy shooting. Mr Kalal was also present at a meeting when the Odisho shooting was discussed in his presence."
The notice then set out the material in the prosecution brief that provided the evidentiary basis for the case. "Witness A (REDACTED): [10] ERISP 13 December 2014 Q's 332-342 Statement 11 April 2014 Paragraph 25 Statement 06 September 2014 Paragraphs 51 & 56 AVL 25 September 2015 Paragraph 12 Witness B (REDACTED): AVL 30 September 2015 Paragraph 9 Witness D (REDACTED): ERISP 4 March 2013 Q/A 253-254, 430-432, 848-856 AVL 29 September 2015 Paragraph 3 Witness G (REDACTED): AVL 28 September 2015 Witness I (REDACTED): Statement 12 August 2014 Paragraph 16 Statement (25 May 2015) Paragraph 52 AVL 28 September 2015 Witness L (REDACTED): AVL 29 September 2015 ERISP 10 June 2015 Q/A 548 & 550"
Extracts of this material was tendered on the voir dire as Ex VD-25, 26 and 27.
By way of example, Mr Kalal seeks to introduce evidence from Witness B whose statement of 30 September 2015 said: "Farhad Qaumi used to boast about all the knee cappings he had done and the three murders he had gotten off. Two of the murders he told us he had gotten off on self-defence and the other one he told us he had chopped some Turkish guy up and buried him under a house."
In oral argument, the date upon which Mr Kalal allegedly heard Farhad Qaumi boasting of the previous killings could not be specified. All that could be said was that it occurred at sometime between mid-August 2013 (when he joined the group) and early November 2013 (the time of the shootings in which he participated). [11]
Counsel for Mr Kalal made it clear that he did not seek to establish the truth of Farhad Qaumi's boasts. That is, he did not seek to establish that Farhad Qaumi had in fact committed three previous killings (and not been convicted) but only that he had boasted of that fact. It was the fact that the boast was made, rather than the truth of the boast, which is said to be probative of the issue of whether Mr Kalal's will was so overborne that his liability is excused by duress.
In terms of the specific facts said to provide the basis of duress in respect of the particular charges faced by Mr Kalal, the notice provided the following information: "No issue is taken with the Crown case, in respect of the leadership structure of the Blacktown Chapter is concerned, namely at the material time Farhad Quami was the leader of the group and his brothers Mumtaz and Jamil Quami formed the remainder of the leadership group. There is also no issue in respect of the claim that Farhad Qaumi was in sole charge of directing the group's activities and the selection of those members who would carry out any given task. It was also the case that some of the directives would not only be issued by Farhad Qaumi himself, but by other members of the leadership group i.e his two brothers. In that context, Mohammed Kalal's position is that: (i) In respect of the Blacktown (Zakaria) shooting, the threats that constituted the duress came directly from Farhad Qaumi, and that he was directly supported by Jamil Qaumi. (ii) In respect of the Chokolatta shooting, the threat that constituted the duress was delivered by Jamil Qaumi, the Accused Mohammed Kalal believing it came from Farad Qaumi in the recognised chain of command and delivered by Jamil Qaumi as a member of the leadership group."
Mr Kalal is charged as a result of his involvement in two of the five shootings that give rise to most of the charges on the twenty four count indictment. These were the "Zakaria shooting" at Blacktown on 4 November 2013 (counts 8 and 9) and the "Chokolatta Café shooting" at Bankstown on 7 November 2013 (counts 11-17). The threats said to have given rise to duress were identified both in the notice and in the course of the oral submissions.
In relation to the Zakaria shooting - which came in the aftermath of the failure to murder Mr Odisho on 3 November 2013 (counts 4 to 6) - Mr Kalal relies on evidence expected to be given in the Crown case by Witness I. It is expected that the evidence will be that Farhad Qaumi said "how fucking hard is it to shoot somebody" and that the plan to kill Masood Zakaria was then discussed. Farhad Qaumi allegedly said to Witness I, Witness D and Mr Kalal "If you don't get Masood one of you is getting shot". Jamil Qaumi was also present and reinforced the threat by saying "I'm going to shoot whoever doesn't get Masood".
In relation to the Chokolatta shooting, Mr Kalal relies on statements made by Witness D who said of Mr Kalal: "He didn't want to do it, then Jamil forced him. He said 'if you don't do it, I'll have to get your family. Sorry Bro, like that's, this is a game.'"
It may be that there is other evidence in the Crown case of threats made to Mr Kalal. Counsel candidly acknowledged that he is not yet on top of all of the material. The important thing is that Mr Kalal's case is that threats of death or serious injury were directed to him and his family immediately before each of the shootings. Part of his case, or his "defence", is that his actions are excused as a result of duress, that his will was overborne by the threats such that he is not criminally responsible for his acts.
The other part of Mr Kalal's defence is that he did not intend to kill or inflict serious injury. He says that the threats caused him to attend the shootings and to discharge the weapons but that he did so in such a way as to ensure that nobody was killed or seriously hurt. In support of this contention, Mr Clarke has cross-examined some of the crime scene officers to establish the limited number of shots fired and that many of the shots appear to have been directed at the roof or floor of the Zakaria house, or into parts of the BMW car targeted in Chokolatta Café shooting that could not have caused injury to those inside.
Mr Clarke opened the case in an appropriately circumspect way: "One of the themes that will be going through this case from start to finish is the role of leaders and followers. And, of course, you are invited to look at the dynamics that is operating between the various players in this case to understand where the power lies, where the weakness lies, where the vulnerability often lies. And that is particularly important for Mr Kalal in this case because, of course, all you have heard at the moment is he turns up on two occasions and shoots at people. So that is not the end position as we see it. The type of authority that we are dealing with is one that requires blind obedience, no questioning, no initiative. Theirs is not to question but to do what they're told. That's the kind of leadership that you may be viewing here. … Well, the position is this, that in addition to having to prove each and every element, the Crown has to disprove other things that are raised by the defence. Now, you have heard about self‑defence, that has been said. And so the whole basis of the Crown case is predicated on the basis that Mohammed Kalal acts in a voluntary way. A voluntary way. And so if you come to the view at the end of the evidence that he hasn't been acting in a voluntary way, involuntary, in fact, then clearly the Crown wouldn't have proved their case against Mohammed Kalal, would they, because they haven't managed to deal with the issue that they would have to as part of proving the case against Mohammed Kalal. I am not going to obviously take you through much evidence because we haven't heard any but I just want to use one example, if I may. Because the Crown used the word 'tasked' as though it is some sort of, you know, voluntary kind of phrase. It may not be their intention but my suggestion to you is that there is nothing voluntary about what is going on here. All right?"

The position taken by the other parties

Farhad Qaumi objects to the admission of the evidence. In the alternative, he seeks an order that Mr Kalal receive a separate trial. The application for separate trials is based on the admission of the evidence that refers to the three previous killings. It is not based on the fact that Mr Kalal has (belatedly) indicated that he will be running a defence that includes raising the question of duress. In other words, if the evidence of Farhad boasting of the three previous murders is excluded, no application for separate trial is made even though Mr Kalal will attempt to mount a defence of duress based on other evidence to be adduced in the trial. Senior Counsel pointed to a number of matters that reduced the probative value of the evidence and went on to point to the extreme nature of the prejudice that would be occasioned if the evidence were to be introduced into the joint trial. Reliance was placed on a number of observations made in R v Qaumi (No 6).
Jamil Qaumi and Mumtaz Qaumi each support the position taken by Farhad Qaumi. That is, they object to the admission of the evidence but, as fall back position, ask that Mr Kalal be subject to a separate trial (if the evidence is held to be admissible). Senior Counsel for Mumtaz Qaumi and Counsel for Jamil Qaumi acknowledged the relevance and probative value of the evidence in Mr Kalal's case but emphasised that the prejudice that would be occasioned to Farhad Qaumi would flow to their clients as a result of the fraternal relationship between the three men.
I interpolate here, because it is relevant to whether I should make an order for separate trials of my own motion, [12] that Jamil Qaumi indicated that he denies making any threat (as alleged by Witnesses I and D or otherwise) to Mr Kalal. This denial came in argument on the present issue and also in counsel's opening statement to the jury: "Ladies and gentlemen of the jury, the Crown in addition to that fact says however that Jamil participated either before or after in the directing or assisting those who were going to participate in these later shootings. Well, that is denied. We deny ordering anyone to go and do these later shootings. We deny ordering any of those people that you have heard me mention that are the shooters to either kill Michael Odisho or to kill Masood Zakaria or to shoot at ‑ I'll just get his name right ‑ Abdul Abu‑Mahmoud who I think you will come to find out is commonly referred to as "Absy". [13] Jamil Qaumi gave no orders of that kind. He told nobody to go and kill those people. He is not responsible, ladies and gentlemen of the jury, for any of the shootings that occurred after the Revesby shooting." [14]
In the course of argument, Ms Carroll (counsel for Jamil Qaumi) said: "CARROLL: …but can I say at the outset that allegations that we threatened to shoot someone either just prior to Zakaria or just prior to Chokolatta is denied and it will be an issue in the trial and I have got no difficulty in saying that. I don't think I put that detail in my opening, but that is our position. Having said that, your Honour is correct HIS HONOUR: Sorry, so that means the very substance upon which Mr Kalal's purported defence of duress rests is denied by the person said to have made it? CARROLL: Yes."
Mohammed Zarshoy initially indicated that if the trials were to be separated, it should be Farhad Qaumi (rather than Mr Kalal) who should be separated. At that stage, it was not clear (as it is now) that the evidence touches not only Farhad Qaumi, but also each of his brothers, and in particular Jamil Qaumi. Ultimately, Mr Zarshoy made no submissions either on the issue of admissibility or on the issue of separate trials.
In written submissions, the Crown Prosecutors made a number of arguments tending to diminish the probative value of the evidence as it relates to a defence of duress. They pointed to the fact that the real evidence of duress came in the threats that immediately preceded the shootings. They pointed to the large body of evidence that will be led by the Crown that will otherwise support the proposition that Farhad Qaumi used violence and threats of violence to intimidate his cohorts into following his orders. The nature and extent of this evidence diminishes the importance of the leader boasting about the three previous killings. The Crown observed that the evidence of Farhad Qumi boasting of the three previous murders did not constitute a direct threat connected to the offences with which Mr Kalal stands charged. The written submission on the admissibility question concluded: "Accordingly, if the evidence of boasting of three killings is not admitted there will be ample other evidence before the jury which is capable of establishing that Farhad Qaumi controlled the group through violence or threat of violence and further that Farhad and Jamil Qaumi were involved in two shootings in the days prior to the shootings in which Kalal was involved. It is also to be taken into account that the shootings will be alleged to be part of an all-out attack to eliminate members or associates of the rival criminal group. This evidence is directly relevant to the issue as to whether Kalal believed Farhad or Jamil Qaumi would carry out the direct threats if he did not do as they directed. In such circumstances the probative value to Kalal's case of the evidence of boasting of three killings, which is not relied on for its truth, is negligible if of any value at all to his defence.
The Crown also submitted that the defence of duress cannot run when the accused voluntarily joined a criminal group or (more correctly I think) when an accused voluntarily put himself in a position where he may be subject to illegal compulsion. Reliance was placed on R v Nguyen [2008] 181 A Crim R 72 at [28], [40], R v Baker & Ward [1992] 2 Cr App R 335 and R v Hasan [2005] UKHL 22; [2005] Cr App R 22. However, in the course of argument, the Crown correctly acknowledged that it was too early to make a determination as to whether the defence of duress should be left to the jury.
In oral submissions, the Crown Prosecutor maintained the position that the probative value was diminished by the various matters referred to in the written submissions. It was submitted that the probative value to the issues in Mr Kalal's trial (duress and intention) is "negligible" or "slight".
In written submissions the Crown indicated that it opposed "any application for separation of any accused from the trial whether the evidence sought to be adduced by Kalal as to Farhad Qaumi boasting of three killings is admitted or refused". However, in oral submission the Crown indicated that it may revisit the question if I determined that Mr Kalal was entitled to elicit some or all of the evidence indicated in the notice setting out the particulars of the evidence.

Section 135 Evidence Act

The application of s 137 of the Evidence Act led to the earlier ruling that the evidence was inadmissible. Section 137 applies to evidence "adduced by the prosecutor". Because the evidence now under consideration is to be adduced by a co-accused, s 137 does not apply. Section 137 of the Evidence Act provides: "137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
Section 135 provides: "135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time."
While ss 135 and 137 both require an evaluation of the "probative value" and the prejudicial effect of the evidence under consideration, there are a number of relevant differences between the sections. First, s 137 is in mandatory terms - the court "must" exclude the evidence if it reaches the conclusion posited by the section. It is headed "Exclusion of prejudicial evidence in criminal proceedings". By contrast, s 135 provides what is described in the heading as a "general discretion" and the section provides that the court "may refuse to admit" the evidence. Second, s 135 requires that the [danger of] prejudice "substantially outweighs" the probative value while the word "substantially" is absent in the terms of s 137.
A question addressed in argument was the scope of the word "party" in section 135. On a restrictive view, and on the basis that there a number of individual trials being conducted together, the parties are Mr Kalal and the Crown. The broader view, and the view I accept, is that in a joint criminal trial each of the accused is "a party" for the purpose of the application of s 135.

Relevance and Probative Value

There is no dispute that evidence that Farhad Qaumi boasted in Mr Kalal's presence that he had previously killed three people is relevant to the issues of duress and intention. It could rationally affect an assessment of a fact or facts in issue. Those facts are (i) whether Mr Kalal was so affected by the alleged threats made immediately before the two shootings that it might be found that he acted under duress and (ii) whether he participated in the shootings but deliberately fired his weapon in such a way that he did not kill or inflict serious injury on the targets of the shooting. In that latter respect his case will receive some support in the evidence of Witness D whose interview of 4 March 2013 recounted a conversation on the way to the Chokolatta shooting where the participants complained about the Qaumi's giving orders and suggested "We'll just shoot at the car and drive off" and that they were "planning to just like run off." [15]
An assessment of the probative value of this evidence (that is, the extent to which it could rationally affect the assessment of the probability of the existence of a fact in issue) is more complicated and controversial. The fact in issue concerns Mr Kalal's state of mind. The task must be approached by assuming that the jury will accept the evidence and not by reference to potential unreliability of the witnesses who are to give the evidence: IMM v The Queen [2016] HCA 14.
It seemed to be suggested (by counsel for Jamil Qaumi) [16] that the evidence might affect an assessment of the factual dispute between Mr Kalal and Jamil and Farhad Qaumi as to whether threats were issued immediately prior to the two shooting in which Mr Kalal participated. If it has any relevance to that issue, its probative value is slight. The fact (assuming it to be) that Farhad Qaumi boasted to the group of committing previous killings does little to inform a rational assessment of the question of whether the specific threats were issued shortly before the two shootings.
However, the probative value of the evidence to Mr Kalal's state of mind is greater. I do not accept the Crown's submission that its probative value to that issue is slight or negligible. However, I do not find the probative value of the evidence to be substantial or significant, to adopt terms used in the course of argument. This is so for a number of reasons.
First, as explained in R v Qaumi & Ors (No 6), there is a significant body of evidence to be led by the prosecution that supports the proposition that Farhad Qaumi used violence and threats of violence to intimidate and control other members of the BFL Blacktown. Those matters were set out at paragraph [13] of the earlier judgment in the following general terms: (1) The assault of a member who refused to involve himself in a drug run. (2) The assault of a member who indicated that he no longer wished to stay with the group including a threat that he might be shot and the suggestion that he must choose whether he was to be shot in the right or left leg. (3) The bashing of a member (including threats with a gun) in response to the member doing an "unauthorised drug run". (4) Threats of shootings if a member failed to pay the $50 weekly membership fee. (5) The pulling of a gun on witness B and being required to indicate which leg he wanted to have shot. (6) An assault on witness I for refusing to be involved in the murder of Mohammed Hamzy. (7) The bashing of the brother of witnesses G and I for "disrespecting [Farhad and Jamil Qaumi] in front of their wives." (8) An order that witness C be bashed for failing to answer his phone. (9) An assault of witness C by Farhad Qaumi during which the witness was struck in the head with a dumbbell. This occurred because witness C failed to arrange finance for a car. (10) Threats of violence if a person should leave the Brothers for Life. (11) The bashing of Masieh Amiri by Farhad Qaumi because of a failure to obtain a gun. (12) Farhad Qaumi telling members that former member Mustafa Shanasa had "gone out with a bang" and would not be returning to the group. [I a note that this is a peripheral detail of offences originally charged in counts 12 and 13 of the indictment and which have been severed.
As I said in R v Qaumi & Ors (No 6) at [14]: "14. There are multiple witnesses to each of these incidents. The nature and extent of this body of evidence is such that a jury will readily understand the prosecution case on this issue. In conjunction with the evidence pertaining to the counts on the indictment - which includes evidence that witnesses were threatened if they failed to obey directions - the jury will appreciate that the Crown case is that the witnesses acted as a result of fear and intimidation instilled by the use of violence and threats of violence. I accept that the evidence that Farhad Qaumi boasted of being involved in three earlier killings would increase the impact of this evidence, but the extent to which it would do so, given the volume of the other evidence is not as great as if it were the only evidence of Farhad instilling fear in the other members."
In addition to those matters, Mr Kalal's case is that he was aware of the killing of Mahmound Hamzy on 29 October 2013 and the shooting of Michael Odisho on 3 November 2013. [17] The defence case particulars (MFI 25) states: "Mr Kalal was also present when Farhad Qaumi also informed members of other incidents, such as the shooting of Mustaf Shanasa and the Hamzy shooting. Mr Kalal was also present at a meeting when the Odisho shooting was discussed in his presence."
The precise extent of his knowledge is not clear but those events occurred on 29 October 2013 and 3 November 2013 and will be subject to evidence adduced by the Crown to establish counts 1-6. Based on the opening statements of counsel for Farhad Qaumi and Jamil Qaumi, it appears that the group's involvement in those shootings will not be disputed. [18] Those shootings, and Mr Kalal's knowledge of them, arose within days of the Zakaria and Chokolatta Café shootings.
It is also the case, as submitted by the Crown, that the critical issue in Mr Kalal's case appears to be whether the threats were made by Farhad and Jamil Qaumi shortly before Mr Kalal participated in the Zakaria and Chokalatta Café shootings. Further, the temporal proximity between the boasts of three prior killings and those shootings is unclear other than the fact that they were made at some time between mid-August 2013 and late October 2013.
In the context of all of these matters, I am unable to accept Mr Clarke's submission that the boasting of three previous killings at some non-specified stage in the previous weeks or months is the "very bedrock" of the belief upon which Mr Kalal's defence is based. [19] I do accept that the evidence has more than "slight" or "negligible" probative value, but the extent to which the evidence has the capacity to impact on an assessment of the facts is not as significant as submitted on behalf of Mr Kalal.

Prejudicial impact in the case of the other accused

I accept the submissions of Mr Stratten SC on behalf of Farhad Qaumi that the introduction of evidence that Farhad Qaumi boasted about committing three previous murders and getting away with them creates a danger of unfair prejudice in his case. I explained the nature of that prejudice, and why it was relevantly unfair, in R v Qaumi and Ors (No 6).
A further aspect of unfairness arises as a result of the belated raising of this issue. In the course of the separate trial applications (argued on 8-10 December 2015 and decided on 3 February 2016), Farhad Qaumi eschewed any application to be tried separately from any of his co-accused. His application may have been different had he been aware that Mr Kalal intended to raise the defence of duress and to elicit evidence of the kind under consideration in doing so. I accept that this aspect of the unfairness might be cured by ordering, at this stage of the proceedings, a separate trial of Mr Kalal. However, whether that remedy is an appropriate one must be considered in the light of a number of other relevant factors to which I will ultimately turn.
Mr Clarke emphasised that he does not seek to establish that Farhad Qaumi in fact committed previous killings and successfully defended the charges. All that he seeks to establish is that Farhad Qaumi boasted of those matters and that he showed the other members (presumably including Mr Kalal) photographs and items from the Internet to support his claims. The use of the evidence would be limited and the jury could be directed accordingly. However, it is submitted by Senior Counsel (and I accept) that Farhad Qaumi was in fact found not guilty by a jury of two charges of murder on the basis of self-defence. The showing of the Internet items and photographs to the group tends to support the fact of the killings rather than the mere boasting of them. The third murder was apparently subject to an order by the Director of Public Prosecutions that there be no further proceedings on the basis of insufficient evidence. Farhad Qaumi is entitled to the "full benefit of the acquittal" of the two murder charges: see for example Garrett v The Queen [1977] HCA 67; 139 CLR 477. But the question, if this evidence is introduced by a co-accused, would be a tactical one. Farhad Qaumi relies on what was said in R v Qaumi (No 6) at [17]: "Farhad Qaumi would be confronted with an impossible forensic election involving two bad choices. He could elect not to respond to the evidence and to trust that the jury would use the evidence in the limited way that the Crown proposes and obey directions that it should ignore the possibility that the accused had previously been responsible for the deaths of three people. Putting aside the obvious prejudice in this, there would also be unfairness in the fact that the jury would not be told that he was, in fact, acquitted in respect of two of the killings and that the prosecution had insufficient evidence to justify putting him to trial on the third. The other bad choice would be to re-litigate those offences for which he had already been acquitted or to rely on the outcomes of the earlier prosecutions. This would involve bringing to the jury's attention the fact that he was in fact involved in three earlier killings."
The same reasoning would apply if Mr Kalal introduces the evidence. Further, the forensic choices are now even more complicated by the fact that Farhad Qaumi has opened the case by raising the question of self defence. If he elected to establish that he had been acquitted, and sought to rely on the full benefit of that acquittal, it may (or would) emerge that he raised the same defence in respect of two of the earlier killings. Further, the evidence of his boasts as to the third alleged murder are quite gruesome (chopping up the Turkish man).
As to whether the prejudice could be cured by direction, Mr Stratten SC relies on the following comments in R v Qaumi & Ors (No 6) at [18]: "18 In my view, these matters give rise to the "danger of unfair prejudice" for the purpose of s137. The question is whether that danger outweighs the probative value of the evidence. In many cases, prejudice such as this can be cured by direction. However, the evidence in this case is of such a nature that I am unable to contemplate a direction that would overcome the unfair prejudice to the accused."
Different considerations apply where the evidence is adduced by one accused although the issue to which the matter is directed (Farhad Qaumi using his reputation for violence to overbear the will of the other members of the BFL Blacktown) is similar to the use to which the Crown sought to elicit the evidence. I have given further consideration as to whether the prejudice might be cured by direction to the jury as to (i) the limited use to which the evidence might be put, (ii) the fact that the evidence is not led to prove the truth of the allegations, (iii) the fact (if the issue was raised) that Farhad Qaumi is entitled to the full benefit of the acquittals and (iv) directing the jury that the evidence may only be used only in Mr Kalal's case on the issues of duress and intention. I have come to the same conclusion as I did in rejecting the evidence in the Crown case - the prejudice to Farhad Qaumi cannot be cured by direction.

Decision on admissibility

Shortly before conclusion of argument on these issues, I became aware of two judgments of Bellew J in trial proceedings that have reached the stage where one of the accused in giving evidence: see R v Rogerson & McNamara (No 3) [2015] NSWSC 965 and R v Rogerson & McNamara (No 45) [2016] NSWSC 452. In each case, his Honour made variations to the non-publication orders to allow the parties in the present case to have access to the judgments. The Crown raised the former decision in the context of the suggestion that the trials of the accused now be separated. The latter decision has some relevance to the present application to exclude part of the evidence upon which one accused relies to lay the foundations for a defence of duress.
In R v Rogerson & McNamara (No 45) Bellew J decided that the accused McNamara would not be permitted to give evidence that Rogerson boasted that he was responsible for five earlier killings. At [32]-[35], his Honour gave reasons why the probative value of the evidence was "limited". This included the lack of precision as to the timing of the earlier boasts and that they took place "some months" prior to the events that gave rise to the duress. It also included the fact that "the real basis of the duress asserted by McNamara stems from a combination of seeing the deceased shot in cold blood, and the threat made by Rogerson immediately thereafter."
As Mr Clarke pointed out, that is a different situation to that which prevails here. In particular, Mr Kalal did not see the perpetrator of the duress shoot somebody in cold blood. However, on his case (as articulated in argument and set out in the particulars), Mr Kalal was aware of the killing of Mahmoud Hamzy and the shooting of Michael Odisho in the days leading up to the threat that he asserts caused him to involve himself in the Zakaria and Chokolatta Café shootings. Further, while the timing of the boasts is more temporally proximate than they were in Rogerson and McNamara, there is a similar lack of precision in the timing of the boasts and they occurred sometime (perhaps weeks, perhaps two months) earlier. Again, the threats made immediately prior to the shootings are the "real basis of the duress". In support of the impact that those threats had on Mr Kalal, there is a large body of evidence of earlier instances of violence and intimidation perpetrated by Farhad Qaumi in order to intimidate and control the other members of the BFL Blacktown. It is significant that Jamil Qaumi was the author of the immediate threats and also a participant in the Hamzy killing a week earlier.
While the decision of Bellew J is distinguishable on its facts and is not binding, his Honour's reasoning reinforces my conclusion that restricting the evidence to be adduced by Mr Kalal will not unduly fetter his ability to mount the defence that he seeks to run. There will be ample evidence, adduced by the prosecution, that will support his case and the belief that it is anticipated he will assert.
In term of the balancing exercise and discretion that arise under s 135 I have concluded that the probative value of the evidence in Kalal's case is substantially outweighed by the danger of unfair prejudice in the cases of Farhad and Jamil Qaumi.
Accordingly, I rule the evidence to be inadmissible in the joint trial.

Separation of trials

Because the evidence has been ruled to be inadmissible in the joint trial, the applications by Farhad, Mumtaz and Jamil Qaumi for Mr Kalal to be tried separately do not arise.
However, while Mr Kalal has made no further application for a separate trial, Mr Clarke has invited me to consider my power to separate his trial of my own motion. There is no doubt that I have the power to do this and to make the orders "at any stage during the trial": see s 21 of the Criminal Procedure Act.
It was submitted that if I came to the conclusion that the exclusion of the evidence would result in Mr Kalal receiving an unfair trial, I should exercise my power to order a separate trial. It may be more correct to say that I would exercise that power if I was of the view that he would be "prejudiced or embarrassed" in his defence or if there is some "other reason" to separate the trials: see the terms of s 21(2). This may be an irrelevant distinction - if I was satisfied that Mr Kalal could not receive a fair trial if the evidence is excluded, I would readily form the view that he may be prejudiced in his defence or that there was some other reason why it is desirable for him to be tried separately.
The applicable legislation, case law and many of the relevant principles were set out in my judgment on separation delivered on 3 February 2016: R v Qaumi & Ors (No 3) at [83]-[97] and [120]-[136]. Given that I have released the jury for around a week in order to determine these issues, there is insufficient time to set out the relevant statutory and case law again. I am guided by those well-established principles discussed in the earlier judgment.
A number of factors must be considered in determining the question of whether the court should order that Mr Kalal be tried separately.
It is accepted that if Farhad and Jamil Qaumi were not parties to the trial, Mr Kalal would be permitted to lead the evidence of the boasts about the earlier killings. That is significant factor in favour of separation.
However, there are many factors pointing in the other direction. In particular, Farhad and Jamil Qaumi dispute the allegation that they made the threats upon which Mr Kalal's defence of duress is predicated. It also appears that the evidence of the boasts relating to previous killings is disputed. It is appropriate that the same jury hear all of the evidence and cross-examination relevant to a resolution of these factual disputes. It is not strictly a "cut throat" defence but, on the issue of duress, there are substantial factual disputes that should be resolved by a single jury.
Further, while Mr Kalal is only charged with a handful of the offences on the indictment, those allegations involve him acting jointly with his co-accused. The general rule is that co-offenders should be tried together.
Next, there is a very large body of common evidence. In particular, a number of the informant witnesses would be required to give evidence in both trials. It is at least desirable that they are not required to give evidence on multiple occasions (or at least on more occasions than is necessary to provide each of the accused with a fair trial).
Not only that, but it is also clear from the submissions that substantial attacks will be made on the credibility of those witnesses by Farhad, Mumtaz and Jamil Qaumi. The jury called upon to determine the defence to be mounted by Mr Kalal should have the benefit of hearing the cross-examination to be mounted on behalf of the Qaumi brothers.
In some cases, the fact that one accused may raise duress as an issue will result in separate trials being granted to the person against whom the allegation of duress is made: see R v Singh, unreported Supreme Court of New South Wales (Fullerton J) 10 November 2011 and R v CE [2005] NSWCCA 326. However, as I have emphasised, neither Farhad Qaumi nor Jamil Qaumi press a separate trial based on the fact that Mr Kalal is running a defence of duress that will prejudice or embarrass them in a joint trial. Cases where duress results in separation generally arise on the motion of the party said to have been responsible for placing the other accused under duress.
I have not come to the conclusion that Mr Kalal's trial will be unfair as a result of the exclusion of this evidence. Nor do I conclude that he will be prejudiced or embarrassed in the conduct of his defence. Taking all of those matters into account, I decline the invitation to make orders for separation and/or postponement of Mr Kalal's trial of my own motion.

ORDERS AND RULINGS

For those reasons, I make the following orders and evidentiary rulings: 1. The evidence that Mr Kalal seeks to adduce, as set out in the particulars (MFI 25) and Ex VD 25, 26 and 27, is inadmissible. 2. The applications for separate trial by Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi do not arise. 3. I decline to make an order for separation or postponement of Mr Kalal's trial of my own motion.

Endnotes

T 907.
T 1234
In fairness to counsel, such an application would have been difficult to sustain in the circumstances and I had indicated to his instructing solicitor that I intended to empanel a jury on 4 April 2016.
MFI 22.
MFI 29, 31.
T 521.
At which point they were marked for identification as MFI 18.
T 622-624.
T 566.
The names of the witnesses have been supressed.
T 822-823.
See, for example, T 820, 865.
"Absy" was the target of the Chokolatta shooting.
T 102.
Ex VD 26 and VD 25, T 6.
T 862-863
Defence Case particulars - (iii) T 823-824.
T 93-94, 100-101.
T 814. 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: 23 November 2016

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