R v Qaumi & Qaumi

The prosecution case in a nutshell

1. In the briefest terms, the prosecution case is that Farhad and Mumtaz Qaumi accepted a $200,000 contract to kill Mr Antoun and that they enlisted Witness L to carry out the murder. Before the day of the shooting, one of the accused provided Witness L with a loaded 0.38 calibre revolver, which was then hidden at his house. On 16 December 2013, the accused contacted Witness C and asked him to drive Witness L to an address in Strathfield to "drop off a package". After Witness L picked up the gun, Witness C drove Witness L to the home of Mr Antoun and his family. Witness L went to the front door, pretending to deliver a package, and shot Mr Antoun five times. Mr Antoun died at the scene. After the murder, Witness L hid the revolver under a tree and later gave it to Farhad and Mumtaz Qaumi. On 3 January 2014, Farhad Qaumi was observed with Witness K, another member of the BFL Blacktown. Later that day Witness K was stopped by police and a 0.38 calibre revolver was located in his car. Ballistics experts later identified that gun as the weapon used to murder Mr Antoun.
2. To establish the involvement of the accused in the murder, the prosecution will rely on the evidence of a number of informant witnesses, surveillance evidence and evidence relating to the use of telephones and the connection of calls through certain mobile telephone cell towers.

The earlier application distinguished from the current application

1. The main reason that the earlier application for a judge alone trial was refused was that a number of issues to be litigated in the trial gave rise to "a factual issue that require[d] the application of objective community standards": s 132(5). Those issues were self-defence (giving rise to a question of reasonableness) and duress (giving rise to a consideration of whether the "ordinary person" would have yielded to the threats).
2. The earlier application was largely based on the extent of pre-trial publicity and the prejudice inherent in parts of the evidence to be adduced by the prosecution that suggested that the accused were involved in violence and criminality that was not charged in the indictment. It was submitted that a lay jury would not be able to put the prejudice aside in spite of the strongest directions.
3. The present application is based on similar considerations and on the need to maintain the integrity of the jury that is currently deliberating. Unlike the joint trial, the Antoun murder trial will not give rise to any issue requiring the application of community standards.
4. I have decided that a trial by judge order under s 132 should be made. These are my reasons for that decision.

The importance of trial by jury and the absence of a presumption in favour of either mode of trial

1. In R v McNeil, Johnson J emphasised the important role of the jury in the criminal justice system. His Honour said: "27. It has been said that, despite the terms of s.131, there is no presumption that a criminal trial should proceed with a jury, thereby casting a burden of proof on an applicant under s.132 to displace such a presumption: R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 at 25 [96], 29-30 [118]; R v Stanley [2013] NSWCCA 124 at [42]; R v Villalon [2013] NSWSC 1516 at [20]. 28. That does not mean, however, that the choice between trial by jury and trial by Judge alone commences with a blank canvas. The Courts have recognised the important role of juries, drawn from the community, in the administration of criminal justice in this State. 29. In R v Jamal [2008] NSWCCA 177; 72 NSWLR 258, Spigelman CJ (Simpson and Price JJ agreeing) said at 262 [24]: 'The central significance of the jury in the administration of criminal justice in Australia is such that the courts should be, on any view, exceptionally reluctant to insist that the system be bypassed, even when seeking to implement the principle of a fair trial. For serious crimes a fair trial in our system of criminal justice is a trial by jury, subject to statutory exception. The community has a right to participate in the administration of criminal justice, and public confidence in that system turns to a significant degree upon that participation. Furthermore, it must not be forgotten that a fair trial is not only a trial fair for the accused, it is also a trial fair to the community represented by the prosecution.' 30. Although this statement of Spigelman CJ was made in the context of a case where s.132 in its earlier form was under consideration (where the Crown could veto a Judge-alone application by an accused person), the sentiments there expressed remain helpful. 31. Observations made by Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517, in the context of a civil case, have been cited regularly in decisions under s.132. The Chief Justice said at 521 [7]: '… decision-making by the collective verdict of a group of citizens, rather than by the reasoned judgment of a professional judge, is a time-honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards.' 32. Considerations of the type referred to in these statements from R v Jamal and Swain v Waverley Municipal Council constitute an important factor in the exercise of discretion under s.132(4)."
2. While the structure of the Act in ss 131, 132 and 132A suggests that the starting point is that criminal proceedings are to be tried by jury, there is binding authority that there is no presumption in favour of a trial by jury: R v Belghar at [96] and [118]; R v Stanley at [42]; RKF v R [2016] NSWCCA 116 at [39]. I accept that the observations in cases such as R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177 and Swain v Waverley Council (2005) 220 CLR 517; [2005] HCA 4 are relevant to a consideration of "the interests of justice" as that expression is used in s 132. However, it is difficult to give those observations meaningful or practical content in any particular case. Such considerations must be relevant in every case where a judge is called upon to make a decision under s 132(4).
3. It is wrong to proceed on the basis that certain serious or notorious crimes should ordinarily be tried by jury and ought not to be subject to a trial by judge order. As Martin CJ said in Arthurs v Western Australia at [82]: "I reject the State's suggestion that the public interest in this case supports a conclusion that a trial by jury is to be preferred because of an increased likelihood of community acceptance of a jury's verdict."
4. One of the most significant and frequently quoted passages concerning the importance of juries to the criminal justice system is to be found in the decision of Heydon J in AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [90] - [97]. In that passage, his Honour referred to the writings of Lord Devlin in "Trial by Jury (rev ed)" (1966). It is worth setting out what Heydon J said in full (citations and endnotes are omitted): "90. Advantages of jury trial. Lord Devlin described trial by jury as 'the lamp that shows that freedom lives'. He also said: 'Trial by jury means a compounding of the legal mind with the lay. The prescription for this compound has been one of the greatest achievements of the common law.' Trial by jury was so greatly valued by the framers of the United States Constitution that it was guaranteed by the Sixth Amendment. Section 80 of our own Constitution provides that trials on indictment of any offence against any law of the Commonwealth shall be by jury. 91. Not everyone admires jury trial. It may certainly be accepted that there are 'irrational' aspects of trial by jury in criminal cases. The selection of 12 as the number of jurors has never been satisfactorily explained. Jurors are expected to understand, remember - on occasions for months - and weigh evidence, which is sometimes not given clearly or is complicated in character, often without ever having done this before. They are expected to grasp and apply sometimes complex propositions of law, almost always without any prior experience of or training in this activity. Many jurors were and are 'unaccustomed to severe intellectual exercise or to protracted thought'. The development of jury trial has been "irrational" in the sense that the jury began, against the background of irrational modes of trial like trial by ordeal and trial by battle, as a body selected for the very reason that the jurors, men of the neighbourhood, had knowledge of the facts relating to the dispute. In this respect it was superior to those rival modes of trial shortly to be forbidden by the Fourth Lateran Council in 1215. But now persons who have any prior knowledge of the dispute or the protagonists in it are likely to be excluded from the jury. The jury is now a body which knows nothing, beyond the teachings of common experience and what may be judicially noticed, except what witnesses tell it or supply to it. It began in order to serve one function; it came to serve another; and its role in performing that latter function has been deliberately preserved. 92. Despite these 'irrational' characteristics, and this wholesale revolution in function, the jury has been thought to possess many qualities which have favoured its long survival in serious criminal cases. Lord Devlin, for example, saw five advantages in trial by jury. 93. First, Lord Devlin thought juries were superior to judges in assessing defence points: 'the hope of the defence very often lies in impalpabilities - the willingness to make allowances for muddle-headedness, illogicalities and unreasonableness - impalpabilities that are less appealing to the legal mind than to the lay'. He said: '[I]t is an essential part of the system that the law should recognise that there are cases in which such factors should be dominating.' 94. Secondly, Lord Devlin also saw juries as being superior to judges in assessing credibility: '[T]he jury is the best instrument for deciding upon the credibility or reliability of a witness and so for determining the primary facts. Whether a person is telling the truth, when it has to be judged, as so often it has, simply from the demeanour of the witness and his manner of telling it, is a matter about which it is easy for a single mind to be fallible. The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of twelve is more reliable. Moreover, the judge, who naturally by his training regards so much as simple that to the ordinary man may be difficult, may fail to make enough allowance for the behaviour of the stupid. The jury hear the witness as one who is as ignorant as they are of lawyers' ways of thought; that is the great advantage to a man of judgment by his peers.' 95. Lord Devlin also saw a third advantage in trial by jury: '[M]inisters of justice have to serve two mistresses - the law and the aequum et bonum or the equity of the case. Their constant endeavour is to please both. That is why the just decision fluctuates ... between two points. In most systems the just decision is tied pretty closely to the law; the law may be made as flexible as possible, but the justice of the case cannot go beyond the furthest point to which the law can be stretched. Trial by jury is a unique institution, devised deliberately or accidentally - that is, its origin is accidental and its retention deliberate - to enable justice to go beyond that point.' He considered that trial by jury had a 'unique merit' in 'that it allows a decision near to the aequum et bonum to be given without injuring the fabric of the law, for the verdict of a jury can make no impact on the law'. Thus Lord Devlin saw the jury as being for some purposes 'the best judicial instrument'. A clear illustration of this role of the jury is seen when the jury decides whether the facts it finds answer certain legal criteria. That phenomenon is recognised by s 118(6) of the Criminal Procedure Act, for the court may refuse to order trial by judge alone 'if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness'. Other examples of factual issues requiring the application of 'objective community standards' include whether behaviour was 'threatening, abusive or insulting'; whether conduct was 'dishonest', a matter to be decided by the jury 'according to the ordinary standards of reasonable and honest people'; whether an assault is 'indecent'; and whether an accused person had a particular intention. 96. Lord Devlin saw a fourth advantage of jury trial which was 'of great importance in the constitution. The ... existence of trial by jury helps to ensure the independence and quality of the judges.' 97. A fifth advantage detected by Lord Devlin was: '[T]rial by jury ... gives protection against laws which the ordinary man may regard as harsh and oppressive. I do not mean by that no more than that it is a protection against tyranny. It is that: but it is also an insurance that the criminal law will conform to the ordinary man's idea of what is fair and just. If it does not, the jury will not be a party to its enforcement. They have in the past used their power of acquittal to defeat the full operation of laws which they thought to be too hard.' In this respect, an accused person who is tried by judge alone is in a very different position from one tried by jury. A jury may have no right to acquit in the face of evidence, but, unlike a judge sitting alone, it has a power to do so, and a power which it is impossible to control on appeal because of traditional limitations on the capacity of the prosecution to appeal from acquittals. In R v Shipley, Lord Mansfield CJ said: 'It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.' As Lord Goddard CJ told the House of Lords in 1955, 'no one has yet been able to find a way of depriving a British jury of its privilege of returning a perverse verdict'. A judge cannot tell a jury to convict, for that would be to make the judge 'decide the case and not the jury, which is not the common law'. The Criminal Procedure Act has gone a step further from the common law by making the judge decide the case without any jury being present at all. The fact-finding procedures of juries thus can be marked by a kind of benign irrationality, for it is open to juries to acquit in the face of very strong evidence merely because they dislike some aspect of the law being enforced, or the behaviour of the police, or the testimony of prosecution witnesses or the conduct of the judge. A judge sitting alone, however, is expected to conform in all respects with rational criteria - the criteria commanded by applicable rules of law, and the criteria imposed by the 'logical faculty' - in assessing the credibility of witnesses, in weighing the probabilities of particular events having happened and in drawing inferences from primary facts."
5. That passage and the opinions expressed by Lord Devlin in the 1960s remain important and (no doubt) underpin the provision in s 132(3) of the Criminal Appeal Act which prohibits the Court from making a trial by Judge order if the accused does not consent. However, it is important to recall the context in which Heydon J was writing. This is disclosed in the paragraph that concludes his observations on the benefits of trial by jury: "98. To depart from a system centred on lay fact-finding which many think has the virtues ascribed to it by Lord Devlin is to take a step which calls for close scrutiny of the safeguards the legislature has provided. One of these is s 120(2)."
6. The reference to section 120(2) is a reference to the Western Australian legislation making it mandatory for a judge, sitting without a jury, to provide reasons. The section provides: "(2) The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied."
7. Heydon J was emphasising the importance of providing reasons when a judge has decided (or the parties have agreed) to proceed without a jury in a serious criminal trial. His Honour was not deciding whether it was, or was not, appropriate to have made the decision to proceed without a jury.
8. The transparency arising from the requirement to give reasons is one of the perceived advantages of a trial by Judge alone: see, for example, Arthurs v Western Australia at [76]. Against that, the requirement of unanimity (or near unanimity [3] ) is one of the advantages of trial by jury. As McKechnie J said in TVM v Western Australia (2007) 180 A Crim R 183 at [32]: "There is a public interest in the administration of justice carried out in public and in serious cases by the representatives of the public sitting as jurors. The fact that a judge must deliver written reasons, where a jury gives a general verdict, is of no consequence. That is the difference between the two modes of trial provided for by law. The inscrutability of a verdict of 12 is tempered by unanimity. The verdict of 1 is tempered by the exposure of reasons. The interests of justice cannot then be affected by the mode of trial, each being valid."
9. In R v Stanley, Barr AJ (with whom Macfarlan JA and Campbell J agreed) confirmed at [42] that "the Court should not assume that either form of trial is more desirable than the other" and that "the interplay of ss 131 and 132 should not be regarded as creating a presumption in favour of trial by jury". See also, RKF v R at [39].

Pre-trial publicity

1. The accused rely 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. A supplementary affidavit of Mumtaz Qaumi's solicitor, Ms Ng, dated 11 October 2016.
2. Each of those affidavits annex a number of newspaper and Internet articles which demonstrate that the two accused, as well as the Brothers for Life gang itself, have been the topic of significant media and Internet attention. I summarised the material in the affidavits of Ms Gittani and Ms Sten in R v Qaumi & Ors (No 14) as follows: "Material annexed to Ms Gittani's affidavit 52. 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. 53. 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. 54. 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. 55. 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. 56. 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. 57. 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. 58. 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. 59. 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 60. 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. 61. 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. 62. 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. 63. 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."
3. I also considered the affidavit of Ms Christinson (the solicitor for a co-accused in the joint trial) which provided a comprehensive summary of the publicity that has surrounded the Brothers for Life between January 2014 and June 2015. That material was not relied on in the current application.
4. The supplementary affidavit of Ms Ng, dated 11 October 2016, set out the results of an Internet search using the keywords "murder of Joseph Antoun" as at 10 October 2016. Mr Young SC placed particular reliance on annexures R, S, V, Z, AA and BB in which links were made between the Antoun murder and the BFL Blacktown.
5. The accused submit that the extensive media coverage of the offences and organisation makes it impossible to summon a jury pool that will not be affected or influenced by the publicity. They argue that the nature and extent of the coverage would have a damaging and prejudicial effect on a jury and that they would not receive a fair trial.
6. The evidence demonstrates the extent of pre-trial publicity to which both the accused and the Brothers for Life have been subjected. The material contains references to the activities of the group generally and also makes specific factual assertions regarding the Antoun murder. It is possible that a member of the jury pool who had read that material - and who remembered it - might be pre-disposed to look unfavourably upon the accused and their case.
7. While the pre-trial publicity has been extensive, the reality is that most of it is, by now, quite historic. There has been very little publicity over the last twelve months while the pre-trial hearings and joint trial proceeded. No doubt this is the result of various non-publication orders that have been in place since November 2015. The most recent publicity appears to be an article published on 5 January 2016 (annexure I to Ms Gittani's affidavit). This described the "most notorious" criminals in Goulbourn prison and named Farhad Qaumi, alleging that he threatened to kill prison officers. There was also an article published on 24 May 2015 (annexure BB to the affidavit of Ms Ng) directly relating to the murder of Joseph Antoun.
8. The pre-trial publicity has been extensive, sensational and potentially prejudicial. It is clearly a relevant and important factor in determining where the interests of justice lie. However, I have concluded that a jury could be selected that would judge the matter free of prejudice that might arise from such material.
9. There are a number of procedures and safeguards that can be adopted to reduce the potential for the publicity to effect prospective jurors. Some of these were discussed in R v Qaumi & Ors (No 14) at [80] and implemented during the joint trial.
10. The first measure was to order that the names of the accused not appear in court lists prior to the commencement of the trial. The effect of this was that any potential juror who received a jury summons would be unable to make any enquiry or Internet search about the accused or the case between the time of the summons and the time of the empanelment.
11. The second measure was to ensure that there was a large jury panel, to inform the members of the panel in some detail of the nature of the allegations and the identity of the witnesses, and to make repeated calls on the panel to indicate if they might not be able to consider the case impartially: s 38(7) of the Jury Act 1977 (NSW). This procedure resulted in around 30 or more applications to be excused prior to empanelment of the jury in the joint trial.
12. Finally, to reduce the risk that a juror might access such material during the trial, the jury were given strong and repeated directions including reference to the provisions of s 68C of the Jury Act. The jury was reminded repeatedly that making any enquiries including Internet searches for the purpose of obtaining information about the accused or other matters relevant to the trial was a criminal offence carrying a possible penalty of imprisonment.
13. In determining the earlier application for a trial by judge alone I referred to a number of high profile cases that had proceeded without apparent prejudice to the accused: see R v Qaumi & Ors (No 14) at [84] - [87].
14. Within the confines of practical reality, it is necessary to operate on the assumption that jurors are true to their oath and comply strictly with the directions given to them by trial judges: see for example, Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [62]-[63]. In R v Jamal, Spigelman CJ said at [19]: "The perspective that jurors properly perform their task, are true to their own oath and comply with the trial judge's directions has repeatedly been applied in appellate courts over recent years."
15. In Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 McHugh JA said at [31]: "The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. 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."
16. In The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16, Brennan J said at 614 - 615: "Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced."
17. While the pre-trial publicity is a significant factor, I would not have been persuaded that, of itself, it constituted sufficient reason to conclude that it is the interests of justice to order that the trial be by judge alone. The circumstances are similar to those that prevailed in R v McNeil [2015] NSWSC 357 where Johnson J found at [66] that the lapse of time between the publicity and the trial was a significant factor. As in this case, his Honour did not find the pre-trial publicity to be a decisive factor.

Prejudicial material to be led in the trial

1. In addition to the pre-trial publicity, the accused also point to the potential for prejudice in evidence to be tendered by the Crown which discloses (if accepted) that the accused were involved in criminal and violent activity beyond the matters asserted in the indictment. For convenience, I will refer to this as evidence of uncharged acts.

Context or relationship evidence not subject to objection

1. The evidence of uncharged acts includes evidence of violence and intimidation directed at fellow members of the BFL Blacktown. Examples of such evidence include: 1. Farhad Qaumi pulling a gun on Witness B and asking him which leg he wanted to be shot in. 2. Farhad Qaumi ordering others to bash Witness C for refusing to answer his phone. 3. Farhad Qaumi bashing Witness C with a dumbbell in the clubhouse for failing to arrange finance on a car loan. 4. Farhad Qaumi telling the group that "Musty went out with a bang" and threatening members if they left the group. 5. Farhad Qaumi placing a gun on Witness E's knees and asking which leg he wants to be shot in for failing to steal his father's car for the group.
2. The purpose of this evidence is to place the actions of Witnesses C, K and L in a realistic context and to explain the relationships between those witnesses and the accused. In other words, it is calculated to explain why those witnesses followed the directions of Farhad and Mumtaz Qaumi in the course of the murder of Joseph Antoun and in its aftermath. The evidence is not led to establish a tendency to be violent or to commit criminal offences.
3. There is no objection to the evidence being led and used in this way. Similar evidence was adduced in the joint trial and strong directions were given to the jury to ensure that the evidence was not misused. In spite of the service of various tendency notices, negotiation between the parties meant that the Crown did not adduce tendency evidence in the course of the joint trial.

Tendency evidence

1. However, in the Antoun trial, and in addition to that general evidence of violence and intimidation, the Crown has also served a revised tendency notice under s 97 Evidence Act 1995 (NSW). The notice identifies the tendency that it seeks to establish:
2. "The tendency sought to be proved is that [Farhad Qaumi and Mumtaz Qaumi] would direct or request [Witness L] to attend a residential house and shoot and kill an occupant."
3. The notice goes on to indicate that the substance of the evidence is to be found in the transcript of evidence given in the joint trial by various witnesses. In particular, it is the evidence of Farhad Qaumi and Mumtaz Qaumi "tasking" Witness L to carry out the Hamzy murder.
4. Objection is taken to the tendency evidence and I have heard argument as to its admissibility. I have concluded that the evidence is relevant and possesses "significant probative value": s 97 Evidence Act. The probative value lies in the fact that in the joint trial, Farhad and Mumtaz Qaumi admitted that they directed Witness L to attend Mohammed Hamzy's residential premises and to shoot and kill him. It was their case that this action was done in self-defence. In the Antoun murder trial, the central issue will be whether the accused directed Witness L to do a very similar thing - to attend the premises of Joseph Antoun and to shoot and kill him. The Crown anticipates that Witness L will give evidence that this is why he carried out the killing. The defence will dispute this and, judging from the conduct of the joint trial, there will be a sustained and spirited attack on the credibility of Witness L (and the other informant witnesses). In those circumstances and given the central fact in issue, the fact (as it is admitted to be) that a few months earlier the accused engaged Witness L to carry out a shooting is evidence with a very high degree of probative value. [4]
5. However, the question under s 101 of whether "the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant" is more difficult. It is difficult, although not perhaps impossible, to formulate jury directions which would allow the evidence to be used as evidence making it more likely that the accused engaged Witness L to carry out the shooting because they had done so before, while prohibiting a lay jury from using the evidence as evidence that the accused were murderers. As Mr Young SC submitted, whatever directions were provided to the jury, the accused would essentially be forced to re-run their defence of self-defence. This forensic minefield will be no easier to navigate if the jury deliberating upon the Hamzy murder returns verdicts part-way through the Antoun murder trial. Those verdicts might be guilty (of murder), guilty of manslaughter or not guilty (of murder or manslaughter).
6. Generally, a decision or ruling that evidence is either admissible or inadmissible is not influenced by the mode of the trial. In other words, evidence that is admissible in a trial by judge sitting alone would also be admissible in front of a jury. However, that general proposition is not universally true. Evidence that may create (or have the potential to create) unfair prejudice before a jury might be admitted before a judge without a corresponding danger of unfair prejudice. The present circumstances may well provide an example of this.
7. Johnson J recently came to a similar conclusion in R v Droudis (No 13) [2016] NSWSC 1350. The parties consented to a trial by Judge alone and his Honour was considering the admissibility of certain evidence, including tendency evidence. Having discussed at [91]-[94] the requirement for a Judge sitting alone to provide reasons and the way in which this distinguishes that process from a jury trial, his Honour concluded: "95. I approach this judgment upon the basis that the provisions in ss.101(2) and 137 have application and operation at a Judge-alone trial, but that the Court should keep in mind, in considering the issue of prejudicial effect, the important differences between the two forms of trial, and the checks and balances which operate at a Judge-alone trial, in particular by way of the duty to give reasons."

Determining the tendency issue and the judge alone issue: which came first, the chicken or the egg?

1. In Droudis, the parties agreed to a judge alone trial and the tendency issue could be considered knowing that the potential for prejudice was diminished because of the mode of trial and that it would not be necessary to fashion jury directions designed to eliminate the prejudicial impact of the evidence. In the present case, there is a dispute as to whether the trial is to be by judge alone or jury and the two matters have been argued sequentially. I reserved judgment on both issues. This gives rise to an issue appropriately described by Senior Counsel for Farhad Qaumi as a "chicken and egg" situation. In other words, which decision should be made first?
2. It is potentially a significant matter. For example, if the tendency evidence is to be admitted, that would impact on the decision as to whether to make an order for a Judge alone trial because a jury is more likely to be influenced by prejudice arising from knowledge that the accused were involved in the Hamzy murder. If the tendency evidence was excluded, the arguments in favour of a judge alone trial would be less compelling. Conversely, if I determined (first) that the trial is to be conducted before a jury that may increase the force of the arguments that the tendency evidence should be excluded because of the proper application of s 101 of the Evidence Act.
3. All parties acknowledge this conundrum and agreed that it was appropriate to consider the issues at the same time.

Decision on tendency evidence and relevance to the application for a judge alone trial

1. I have determined (in a separate judgment) that the probative value of the tendency evidence substantially outweighs any prejudicial effect it may have on the accused. Accordingly, I have ruled that the evidence is admissible: see R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487.
2. The nature and extent of the evidence suggesting that the two accused men committed reprehensible acts that are not charged on the indictment is a relevant matter in determining whether it is in the interests of justice to make an order for a trial by Judge alone.

Maintaining the integrity of the jury in the joint trial.

1. A practical, but particularly complicating, factor in the present case is the fact that the jury in the joint trial is currently deliberating. It is impossible to predict how long the deliberations will last. The jury retired to consider its verdict on Wednesday 28 September 2016 at 3.23pm but deliberations did not commence until 10.00am the next day. There have been sixteen court days since that time but several days (or half days) of deliberation were lost as a result of ill health of one or other of the jurors. In view of the complicated and diverse issues involved in the joint trial, it is unlikely that the jury will reach verdicts on all counts and all accused in less than a period of several weeks. I delayed making the decision on this application to see whether the jury might reach verdicts, or provide some indication that verdicts were imminent. While some of the jury's questions suggest that progress is being made, there is nothing to suggest that the verdicts are imminent.
2. The problem that this creates was emphasised by Senior Counsel for Farhad Qaumi who is troubled by the possibility that a new jury might be empaneled before verdicts are reached in the joint trial. The concern is that there is a risk that the two juries, or individual members of the juries, may come into contact with each other in the course of the deliberations of the jury in the joint trial.
3. The trials are taking place in a special and secure court in the Downing Centre, at the southern end of the central business district of Sydney. While the Supreme Court occasionally uses this courtroom, generally the judges of the NSW District Court use the trial courts in this court complex. I have consulted a number of the judges of the District Court as to their practice when dealing with back-to-back trials involving the same accused. Practices vary from judge to judge. Some judges have empanelled a second jury while the first jury is still deliberating. No problems have been encountered but these judges have nevertheless harboured some misgivings about the practice. One very senior Judge of the District Court, whose opinion is greatly valued, will not run the risk of empanelling a second jury when the first jury is deliberating. His Honour's view is that the risk of the juries coming into contact is real and not worth running.
4. The circumstances prevailing in the present case are far more extreme than that generally encountered in back-to-back trials in the District Court. This is because the first trial here took around six months before the jury retired to consider its verdicts. It is not worth running even the slightest risk of contamination of the jury's deliberations.
5. With the consent of counsel for the parties, I explored the matter with the extremely efficient and helpful Court Officer and with the jury co-ordinator who is responsible for all jurors and juries within the Downing Centre. The Court Officer showed me the jury assembly rooms, muster rooms and deliberation rooms. I was also shown the entrances and exits that are used by jurors. There is a common mustering area in which several juries might be present during a luncheon adjournment or before court. I was advised that one of the juries (probably the putative Antoun jury) could be kept out of that area and quarantined from the other juries within the Downing Centre by using separate entrances and exits. That latter step would involve the somewhat unsatisfactory process of having the jury meet at a designated location in the streets adjacent to the Downing Centre (rather than within the building). Commencement times, lunch hours and finish times could be staggered by half an hour or so to reduce the risk of jurors from the two juries coming into contact with one another.
6. I have no doubt that the steps that could be taken by the officers responsible for such matter would minimise the risk that the juries would have contact with each other within the Downing Centre. However, even if that risk was reduced to zero, there would remain a risk of the jurors coming into contact in the many restaurants, bars and public houses in the vicinity of the court complex. It is well known that individual jurors, groups of jurors and whole juries sometimes socialise in establishments located nearby the court complex.
7. Having considered the steps that could be taken, I have concluded that the risk of contamination is not great. However, it is ultimately unable to be calculated and the possibility cannot be ruled out. In view of the stakes involved, I am not prepared to empanel a jury in the Antoun trial until the jury in the joint trial has announced its verdicts.
8. In reaching that conclusion I considered, but rejected, the idea of sequestering one or other of the juries.
9. Ordinarily, the appropriate solution would be to postpone the commencement of the trial until the verdicts are returned. However, because of the estimated length of the trial, the proximity of the Christmas vacation and the undesirability of having the jury deliberating into the weeks and days leading up to Christmas, if the case is postponed it would not commence until February or March of 2017. That would be an unfortunate outcome for a variety of reasons. In reviewing my judgment ordering non-publication of the evidence in the joint trial, the Court of Criminal Appeal said: "76. We also make the following additional comments. The appellants indicated that the direction that the two trials be conducted back to back was a matter of case management and referred to the comments of Spigelman CJ in John Fairfax Publications v District Court of NSW to which we have referred above at [36]. Although Spigelman CJ indicated that there may be good administrative reasons why trials should be held back-to-back, the position in the present case goes well beyond administrative arrangements of court listings. The matters articulated by the primary judge at [74]-[76], set out above at [44]-[47], are matters that are fundamental to the proper administration of justice. 77. In particular, it is essential that persons charged with criminal offences have those charges determined as early as is possible in the criminal justice system. Further, such persons should not be denied their liberty for lengthy periods pending trial. It is likewise fundamental that witnesses give their evidence, not only untrammelled by threats should they do so, but as soon as possible so as to protect the integrity of the evidence, which may not only be infected by fear of personal danger, but by the normal human processes of fading memory." [5]
10. It has been held that the "overall efficiencies" in the court processes (for example, the suggestion that a Judge alone trial may be quicker and more efficient than a jury trial) is not a matter that is relevant to "the interests of justice in the particular case" although it might form "part of the mix": R v Belghar at [110] - [111] (McClellan CJ at CL). However, there are cases where such matters may have relevance because of the particular circumstances of the case. For example, in R v Gittany, McCallum J was satisfied that the reduction in the length of the trial was a relevant factor where the evidence established that the accused would have been unable to fund a longer (jury) trial and would not be able to retain counsel of his choice.
11. In Nationwide News v Qaumi, the Court of Criminal Appeal at [75] described the present proceedings as "exceptional" (albeit in a different context). A consideration of the interests of justice in the present case include:
12. The need to maintain the integrity of the jury in the joint trial throughout their lengthy deliberations.
13. The interests of the bereaved, the accused and the witnesses in having the Antoun murder trial commence as soon as practicable.
14. The public interest in open justice and the desirability that the non-publication order over the evidence in the joint trial be lifted as soon as possible. A further delay in the commencement of the trial would mean that non-publication orders made in this Court and confirmed by the Court of Criminal Appeal would continue well into 2017 in circumstances when it was assumed that the orders would be extant only until sometime towards the end of 2016.
15. None of these matters are determinative of the present application but the unusual combination of circumstances militate in favour of making an order for a trial by Judge alone.

Credibility issues

1. It is apparent that the trial will involve significant issues concerning the credibility of a number of informant witnesses. Some of these witnesses were directly and criminally concerned in the events giving rise to the charges and others were involved in other criminal activities undertaken by the BFL Blacktown. Some give evidence of admissions. All of these witnesses are witnesses whose evidence is likely to be subject to a strong warning under s 165 of the Evidence Act that the evidence may be unreliable.
2. The determination of the credibility of these witnesses is likely to be central to the outcome of the trial. There is a body of authority that suggests that a jury is the better tribunal to make determinations of issues of credit. I considered these authorities in R v Simmons & Moore (No 4) at [73] - [82]. In R v McNeil, Johnson J concluded: "104. Insofar as it would seem that there are issues as to the credibility on the part of witnesses to be called in the Applicant's trial, in my view this factor may be taken into account in support of retaining the s.131 procedure of trial by jury."
3. I remain of the view I have expressed in the past that the fact that credibility issues will arise in a trial is essentially a neutral factor. [6] As was discussed by Owen and Bus JJA in Coates v Western Australia there are advantages to each mode of trial. Certainly, unanimity is a factor of considerable importance but this is so in any case where there is a question whether to make an order for a criminal trial to proceed before a judge without a jury.

My knowledge of and previous findings relating to the evidence and witnesses

1. In written submissions, the Crown made the following observation: "In R v Qaumi & Ors (No 14) at [42], your Honour concluded that the issue of credibility of witnesses in that case was not a matter that militates either in favour or against making an order for judge alone. However it is submitted that the situation has changed as a result of your Honour presiding over the jury trial. It is submitted the following matters are relevant to consider: The current trial has heard evidence alleging the involvement of both accused in other extremely serious criminal conduct much of which will not be before a jury in the Antoun trial. Your Honour has considered evidence which has been ruled inadmissible. Such evidence includes intercepted calls involving Mumtaz Qaumi and Farhad Qaumi whilst in custody which allegedly relate to doing harm to a co-accused Zarshoy (R v Qaumi & Ors (No 4) [2016] NSWSC 114). Your Honour has had access to evidence before the Crime Commission. The Crown is unaware if any of that evidence was evidence given by an accused. If it did include evidence of an accused then it would mean the fact finder has had access to material which has not been available to the Crown. During the course of the current trial incidents have occurred including an incident where Mumtaz Qaumi acted violently towards a co-accused. The incident resulted in your Honour directing the erection of a partition in the dock to separate groups of accused. Your Honour has foreshadowed the possibility that Mumtaz Qaumi may be charged with contempt for the dock incident. On consideration of the above matters your Honour may determine that the interests of justice require that the trial take place with a jury."
2. When explored in oral argument, the Crown's submission was rather enigmatic. There was no suggestion that I was compromised or disqualified from hearing the case. There was no suggestion that the objective observer of the proceedings might think that I might not bring an impartial mind to bear upon the issues between the parties: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]. The submission seemed to be that if I felt the need to recuse myself, it would be necessary to adjourn the proceedings until another judge became available whereas a jury panel has been summoned to attend on Monday 24 October 2016. [7]
3. Neither the Crown nor the accused suggest that my pre-existing knowledge of the case or previous findings in relation to the credibility of some of the witnesses (for example, in sentencing Witnesses L and M) [8] gives rise to any actual or apprehended bias. [9] This is not surprising. Those earlier decisions were based on different evidence, arising in the context of different issues and, in some instances, made in the absence of any real contradictor. It is entirely orthodox and common for judges to be called upon to make factual findings on the same or similar subject matters and involving common witnesses without there being any suggestion that the judge is disqualified as a result of apprehended bias.
4. McHugh JA in Attorney General (NSW) v John Fairfax and Sons and Bacon (1985) 6 NSWLR 695 at 709 said "judicial officers by their training and experience are expected to put aside prejudicial remarks and comments." In Victoria v Australian Building Construction Employees' & Builders Labourers' Federation (1982) 152 CLR 25; [1982] HCA 31, Mason J made a similar point: "60. Obviously judges are more capable than jurors of putting aside prejudicial matter, including public prejudice. Objectivity and independence are the qualities which judges are expected to bring to judicial determination. I should have thought, along with Northrop J. at first instance, that to say that there is a risk the judges of the Federal Court may succumb, even subconsciously, to pressures arising from public prejudice flowing from the proceedings of the Commission is somewhat fanciful."
5. I am not persuaded that my previous exposure to the facts of this case, my existing knowledge of the evidence and witnesses, or the fact that I have made a number of previous rulings and published judgments are matters of significance in determining whether it is in the interests of justice to make an order for a trial by judge alone.

The election of the accused and the position taken by the Crown

1. A relevant consideration is the fact that each of the accused, with the benefit of legal advice, has made an informed decision to waive his right to a trial by jury: see, for example, R v Simmons & Moore (No 4) at [58] - [60]; R v Belghar at [99], Arthurs v Western Australia at [79].
2. There is no authority of which I am aware that similar consideration applies with respect to the position taken by the prosecution. The fact that the prosecution does not consent means that the decision must be made by the Court. Further, it is well established that "an accused cannot have a trial by judge alone for the asking": R v Stanley at [42]; R v Simmons & Moore (No 4) at [59].

The interests of justice in the present case

1. Even allowing for the importance of trial by jury as a means of allowing the community to participate in the criminal justice system, and giving full weight to the arguments advanced by the Crown, the particular circumstances of the present case mean that it is in the interests of justice to make a "trial by Judge order" under s 132.
2. Of particular significance is the difficulty of formulating jury directions that would allow the prosecution to adduce its tendency evidence while avoiding prejudice and unfairness to the accused with the risk that the trial may miscarry.
3. Other important factors militating in favour of making the order are interrelated; namely the importance of maintaining the integrity of the jury that is deliberating in the joint trial, ensuring that the Antoun murder trial commences in a timely fashion and promoting the community interest in open justice by minimising the length of time that non-publication orders remain in place.

ORDERS

1. For those reasons I make a trial by judge order under s 132 of the Criminal Procedure Act 1986 (NSW).

Endnotes

1. Originally there were six accused but one of them ("Witness M") pleaded guilty shortly before the trial commenced: R v AC (No 7) [2016] NSWSC 404.
2. Because of the time of day, the jury was permitted to separate and deliberations commenced the following day.
3. See s 55F Jury Act 1977 (NSW).
4. Probative value "means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
5. Nationwide News v Qaumi [2016] NSWCCA 97.
6. See R v Simmons & Moore (No 4) at [82]. Adams J referred to these observations with approval in Redman v R at [14] - [15]. However, the other members of the Court resolved that appeal on less expansive grounds and did not determine the issue.
7. T 26.
8. R v NK (No 3) [2015] NSWSC 1257; R v AC (No 7) [2016] NSWSC 404.
9. T 26. 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: 02 December 2016