R v Qaumi & Qaumi

The Crown case and expected issues in the Antoun trial

1. The prosecution case is that on or about 11 December 2013 Farhad and Mumtaz Qaumi accepted a contract to kill Joseph Antoun. The contract was taken out by a man called Les Elias. It is suggested that Les Elias and Joseph Antoun had a falling out over a business deal six years earlier. There is also evidence that another man (Pasquale Barbaro) may have wanted to have Antoun killed. It is alleged that part of the proceeds of the contract would be used to purchase Mumtaz Qaumi's kebab shop.
2. The Crown relies on the evidence of a number of informant or "roll-over" witnesses. There is no dispute that the shooting took place on 16 December 2013 and that Joseph Antoun died as a result of gunshot wounds. Witness C will give evidence that he was directed by Farhad and Mumtaz Qaumi to drive Witness L to Joseph Antoun's house. He was apparently unaware of the true purpose of the trip. Witness L will give evidence that he was instructed by Farhad and Mumtaz Qaumi to shoot and kill Joseph Antoun. He was provided with a .38 calibre revolver for the purpose of the shooting. Witness L had never met or seen Joseph Antoun before and was provided with a description by Mumtaz Qaumi.
3. The Crown case is that the gun was returned to Farhad Qaumi after the shooting. He then gave the gun to Witness K. Witness K will give evidence to that effect. He was arrested and the gun was found in his car. He telephoned Farhad Qaumi after his arrest and his brother (Witness J) later spoke to Farhad Qaumi over the telephone. He was recorded saying "Fuck why did you give it to him for bro".
4. The gun recovered from Witness K's car was a .38 snub nose revolver. It was ballistically matched to the weapon that was used to kill Joseph Antoun.
5. The Crown will rely on evidence to be given by a number of informant or roll-over witnesses. These include Witness C (who drove to the shooting), Witness L (who carried out the shooting), Witness K (who was arrested with the gun) and Witness J (who is Witness K's brother). In addition, evidence will be given by Witness M, a close associate of the Qaumi brothers. She will allege that the accused made certain statements to her that demonstrate their involvement in the killing of Joseph Antoun. All of these witnesses also gave evidence in the first trial. Each of them is a witness whose evidence was subject to very strong warnings to the effect that their evidence may be unreliable. Each was criminally concerned in relevant events (in the first trial, the Antoun trial or both) and each obtained substantial benefits as a result of their co-operation with the police and prosecution.
6. The Crown relies on surveillance evidence, telephone intercepts, call charge records and cell tower records to establish a number of meetings and telephone calls said to support the evidence of these informant witnesses. In particular, reliance is placed on meetings said to have taken place between the accused and the informant witnesses prior to the shooting. The Crown also relies on meetings with Les Elias after the shooting and the deposit of $80,000 into the bank account of Mumtaz Qaumi. [1]
7. Of particular relevance to the present application is the surveillance evidence on 11-12 December 2013 and 16 December 2013 which (it is alleged) establishes meetings between the accused and Witness L.
8. The defence case is that the accused were not involved in the Antoun shooting. In particular, Farhad and Mumtaz Qaumi did not direct or request (or "task") Witness L to carry out the shooting. Witness L's credibility is likely to be one of the most significant issues in the trial. He was subject to a substantial credibility attack in the first trial. The accused were members (and possibly leaders) of the Brothers for Life Blacktown. Their association with Witness L (and others) at relevant times, while not entirely innnocent, had nothing to do with the murder of Joseph Antoun.

The evidence is relevant

1. The evidence is relevant. Sections 55 and 56 of the Evidence Act provide: "55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible."
2. Evidence that the accused had previously asked or directed Witness L to carry out a shooting (in self defence or otherwise) is relevant to the nature of the relationship between the accused and Witness L and place the evidence of Witness L and others in a realistic context. Further, it is evidence capable of rebutting the suggestion of an "innocent" association [2] between the accused and Witness L: cf Harriman v the Queen (1989) 167 CLR 590; [1989] HCA 50.
3. Given the obvious potential for such evidence to cause prejudice, a question would arise under s 137 of the Evidence Act if the evidence was pressed on that basis alone. However, the Crown submitted that the prosecution would not press the evidence on these more general bases unless the evidence is held to be admissible under the more stringest requirements relating to tendency evidence in ss 97 and 101 Evidence Act. [3]

Does the evidence have significant probative value as tendency evidence?

1. Section 97 of the Evidence Act defines tendency evidence and provides the first test of admissibility. It provides (relevantly): "(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."
2. The evidence in question is evidence of the conduct of the accused and it is being led to establish (amongst other things) that they each had a tendency to act in a particular way. Accordingly, it is "tendency evidence" and cannot be admitted for that purpose unless it has "significant probative value". I do not accept the submisison made on behalf of Farhad Qaumi that "the evidence is not tendency evidence". [4]
3. The process of reasoning involved when tendency evidence is admitted was described by the Court of Criminal Appeal in Elomar v R [2014] NSWCCA 303: "360. The process of reasoning is: on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way; • it can therefore be concluded or inferred that the person had a tendency to act in that way; • by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency."
4. It was submitted by Senior Counsel for Farhad Qaumi that the approach taken by the Crown was "artificial" [5] in that the Crown selected a small number of features in its attempt to disguise the fact that the tendency alleged was of such generality that its probative value was limited. It is correct that when the tendency asserted is of a very general nature, the evidence is less likely to possess significant probative value: see, for example, Sokolowskyj v R (2014) 239 A Crim R 528; [2014] NSWCCA 55 at [40]; DAO v R [2011] NSWCCA 63 at [179]; R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 at [53]. However, the tendency asserted in this case - to direct a particular person to carry out a shooting at residential premises - is of a very specific nature. I am unable to accept that the method by which the Crown narrowed down and particularised the tendency is "artificial".
5. The word "significant" means important or of consequence. It requires more than mere relevance: R v Lockyer (1996) 89 A Crim R 457; Hughes v R [2015] NSWCCA 330 at [163]. In IMM v The Queen [2016] HCA 14 a majority of the High Court said at [46]. "The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding."
6. Senior Counsel for Farhad Qaumi submitted that others were also "tasked" to carry out the Hamzy shooting and reminded me that there is other evidence (relied on by the Crown but disputed by the accused) that the Qaumi brothers arranged for other members of the BFL Blacktown to carry out a number of other shootings both before and after the the Hamzy shooting. The full extent of those other shooting incidents, and the number of gang members allegedly engaged by the Qaumi's in these other shooting incidents, can be gleaned from the judgment severing the Antoun murder count: R v Qaumi & Ors (No 3) at [20]-[69]. The argument is that the fact that there is evidence of the Qaumis engaging other gang members to carry out the shootings reduces the probative value of evidence that they had previously engaged Witness L to carry out a shooting.
7. I am not persuaded, as a matter of logic or circumstantial reasoning, that this submision is corrrect. Even if this fact waters down the evidence to some degree, it does not reduce the probative value of the evidence by very much.
8. If the issue was "which gang member did the Qaumis engage to do a particular shooting?", the probative value of the subject evidence would be reduced by evidence that the Qaumis engaged a number of other people to do previous shootings. But the issue here is "who (if anybody) engaged Witness L to carry out the Antoun shooting?" or, put another way, "did the Qaumis (as opposed to somebody else) engage witness L to carry out that shooting?" Evidence that other people had previously engaged Witness L to carry out shootings would have a capacity to diminish the probative value of evidence of his involvement in the Hamzy shooting to those issues but: 1. I am unaware of any such evidence, and 2. The fact that the Qaumis engaged other members of the gang to carry out other shootings does not diminish (by much, if at all) the probative value of evidence that they engaged Witness L to execute the Hamzy shooting a few weeks or months earlier.
9. Further, two things about the Hamzy shooting are significant in an assessment of the probative value of the proposed tendency evidence to the issues in the Antoun trial. First, the evidence that Witness L was engaged to shoot Mohammed Hamzy was not disputed. In Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 Mason CJ, Deane and Dawson JJ said at 482 that it was obvious that "the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed". [6] Secondly, on the defence case (although not on the Crown case), [7] it was Witness L who shot Mahmoud Hamzy in the head at close range.
10. The accused referred to my judgment in R v Qaumi & Ors (No 3) on severance to submit that the Crown was attempting to canvass an earlier ruling. The passage relied upon is as follows: "147. I am not satisfied that the evidence to be led in support of counts 1-10 or counts 30-31 is admissible in support of the counts that remain on the indictment. I adopt a similar process of reasoning as that disclosed in the judgment of Bell J (as her Honour then was) in R v Abdul Darwiche [2006] NSWSC 922 especially at [9], [22], [24]-[29]. The fact (assuming it to be) that Farhad and Mumtaz accepted a contract to arrange the murder of Mr Antoun in December 2013 does not illuminate the differences between the two chapters of the BFL that led to the shootings of those associated with the Bankstown chapter between October and November of 2013. 148. Nor am I persuaded (on the limited arguments advanced) that the evidence of the earlier offences (counts 1-10) or the Antoun murder possess significant probative value as tendency evidence given the different nature of the events and the different tendencies involved in those events. Unless the tendency is cast as widely as a tendency to engage in criminal activity or a tendency to discharge firearms or something similar, the "extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" is limited. While it has been held that tendency evidence under s 97 (unlike coincidence evidence under s 98 and similar fact evidence at common law) does not require there to be an "underlying unity" or "striking similarity" to be admissible, it has also been held that the more general the tendency asserted the less probative value the evidence is likely to have. Even if it is accepted that the evidence has significant probative value for the purpose of s 97, that probative value does not substantially outweigh the prejudicial effect that the evidence may have on the accused. 149. I can envisage no direction that would engender confidence in the Court that a jury could put aside the relevantly prejudicial impact of conducting the two unrelated murder charges together, one involving what might be seen as a gangland war and the other that is cast as a contract killing. I have little doubt that any guilty verdict returned if these counts were run together in one trial would be tainted by the possibility that the jury was simply overwhelmed by the prejudice created by the joint trial. I have considered the Crown's submission, based on the observations of Martin J in R v Bunting and Ors (at [409]), that the jury is entitled to "the full story" rather than a "fragmented and distorted picture". However, such a submission might be made in any case. The essential questions in a case such as this are whether the evidence to prove one count is admissible to prove the other and whether the conduct of the trials jointly may be "productive of a miscarriage of justice": cf Makarov v R (No 3) [2008] NSWCCA 293 at [54], [73]-[82]. That is a question of judgment to be made in the circumstances peculiar to each case. There is a certain danger in applying the findings and language employed by a trial Judge in a case as extraordinary and extreme as that which confronted Martin J in Bunting and Ors."
11. A number of things should be observed about this passage. First, the parties agreed that the tendency issue did not need to be resolved on the severance application. It was not subject to full argument, or any argument at all. Second, the first two paragraphs of the passage relied upon do not deal with the issue with which I am currently concerned. I held, and I maintain, that the "fact" (if it is assumed or proved to be) that the accused were involved in other shootings (such as the Antoun shooting) did not have significant probative value in determining the issues arising in the series of shootings with which the first trial was concerned (that is, the Hamzy shooting and other shootings arising out of a conflict between two chapters of the Brothers for Life). That is a very different question to that which now arises. Third, insofar as there was any "tendency" under consideration, it was of a far more general nature than that which is now identified and particularised by the prosectuion.
12. Reliance was also placed on my decision in R v Qaumi & Ors (No 6) [2016] NSWSC 115. That decision related to an attempt by the Crown to adduce evidence that Farhad Qaumi had previously boasted of killing three people and getting away with it. This was to prove the violence and intimidation inherent in the group and to explain the conduct of the witnesses. It related to offences for which Farhad Qaumi had been acquitted (or subject to a nolle prosecui), which was not tendered to prove the truth of the allegations or to establish a relevant tendency and did not relate to any identified tendency. The decision and the reasons underlying it are of no consequence in determining the probative value of the evidence relied on by the prosectuion as tendency evidence in the Antoun trial.
13. In short, other than in relation to questions of prejudice and the difficulties in formulating jury directions, I reject the suggestion that the earlier judgments published in this matter are influential in determining the current application.
14. In view of the issues to be ventilated in the Antoun trial, the evidence that Farhad and Mumtaz Qaumi had previously engaged Witness L to carry out a shooting at a residential home, is tendency evidence possessing a significant probative value.

The prejudical effect of the evidence on the accused

1. The far more difficult issue concerns the proper application of s 101 of the Evidence Act which provides: "101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." [8]
2. Most of the case law on tendency evidence is concerned with an assessment of the probative value of the evidence. However, evidence of this kind is, by its nature, prejudicial. Cases under the common law emphasised that such evidence (however categorised or labelled) is not excluded because it is not relevant - it is excluded because of is prejudical impact. In Harriman v The Queen, Dawson J said at 597: "When a person is charged with a criminal offence, evidence is ordinarily inadmissible that he has on other occasions been guilty of behaviour indicating a criminal disposition. This is not because the evidence is irrelevant. On the contrary, it is excluded because a jury is likely to regard it as proving too much and is for that reason likely to proceed upon prejudice rather than proof."
3. See also Pfennig v The Queen at 501 (Toohey J).
4. The balancing exercise required by s 101 is a difficult one because "prejudicial effect and probative value are incommensurables" and "have no standard of comparison": Pfennig v The Queen at 528 (per McHugh J). [9] However, the Evidence Act provides a high hurdle, requiring the probative value to "substantially" outweigh "any" prejudicial effect that the the evidence "may" have on the accused.
5. In the present case, the predudicial effect of such evidence is self-evident. As Senior Counsel for Mumtaz Qaumi emphasised, whatever the outome of the first trial (in which the verdicts are likely to be delivered as the Antoun trial progresses), the accused will be required to a greater or lesser degree to re-litigate their defence of self-defence. This will be necessary to prevent the tribunal of fact from reasoning that the accused are simply criminals who engage people like Witness L to carry out killings on their behalf.
6. Futher, and more basally, the evidence may suggest to a jury that the accused are murderers. Directions that the jury ought not to reason to guilt as a result of its knowledge that the accused had, just months before, engaged Witness L to carry out a shooting with intent to kill may be ineffective in spite of the general assumptions that juries are robust, that juries follow directions and that juries are not unduly affected by prejudice: cf, for example, Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [62] - [63], R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177, Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31] and The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 at 614 - 615.
7. The observations in the preceding paragraphs have far more potency if the trial were to be conducted by jury. The reasoning of Johnson J in R v Droudis (No 13) [2016] NSWSC 1350 at [79]-[93] have particular resonance if this trial is conducted by judge alone. As I have explained, the decision whether to grant the application for a trial by judge alone is affected by the decision as to the admissibility of the tendency evidence. Similarly, the decision as to the extent of prejudice in the tendency evidence is informed, to some extent, by the decision as to the mode of trial.
8. In R v Qaumi & Qaumi, I determined that the accused's application to be tried by judge alone should be granted. Accordingly, and in accordance with the reasons set out in that judgment and in the decision of Johnson J in R v Droudis (No 13), the prejudical effect that the tendency evidence may have is reduced.
9. I accept the submissions of Senior Counsel that s 101 of the Evidence Act must still be considered on its terms and that the evidence retains a capacity to cause prejudice to the accused. In particular, irrespective of the fact that the trial will be by judge alone, the accused will be required to establish that the Hamzy shooting was carried out in particular, and extreme, circumstances where the accused believed that a violent criminal had set upon a course to kill Farhad Qaumi or to pay others to kill him. However, the fact that the trial will be conducted by judge alone will reduce the prejudicial effect that the evidence may have on the accused.
10. A trained judge will understand that the evidence will go solely to the issue of whether Witness L was engaged by the accused to carry out the shooting. It is probative of that fact but it is far from conclusive of it. A judge will appreciate that the circumstances of the two offences are quite different and that it is illogical and improper to reason to a guilty verdict in relation to the Antoun murder by reference to the accused's admitted involvement in the Hamzy shooting. A judge will be required to give reasons, including reasons explaining the manner in which the tendency evidence has informed their reasoning in reaching a lawful and just verdict in the case. A trained judge will appreciate that the evidence of Witness L must be treated with extreme caution and must not be accepted unless it receives compelling support in the other evidence in the case.
11. Against that, the evidence that the accused directed or requested Witness L to shoot Mohammed Hamzy in his home retains significant probative value in considering whether the accused were part of a joint criminal enterprise with Witness L in the murder of Joseph Antoun or whether they were accessories before the fact to that murder.
12. In my assessment, in a judge alone trial, the probative value of that evidence substantially outweighs the prejudicial effect that it may have on the accused. Whether my assessment of this critical issue would have been different if the trial were to be conducted with a jury is a matter that need not be determined.

Decision 1. For those reasons, the tendency evidence is admissible.

Endnotes

1. This deposit is referred to in the Crown's submissions on tendency evidence [MFI 17 at 12(viii)] although it is not referred to in the Crown case statement (Ex B). I assume that there is evidence to support the assertion although it is not a matter that impacts on the admissibility or otherwise of the tendency evidence.
2. I use the expression "innocent association" in the sense of innocent of involvement in the Antoun murder.
3. T 42, 60 & 62.
4. Written submissions (MFI 15) at [4].
5. T 47 & 50.
6. Pfennig is a case under the common law and relates to similar fact evidence. However, the same reasoning applies where there is no dispute as to the facts or evidence said to give rise to the "tendency" asserted under s 97. In any event, the High Court's decision in IMM states that an assumption of the jury's acceptance of the evidence must be made in order to assess the probative value of the evidence.
7. The Crown case was that it was Jamil Qaumi who fired the head shots that killed Mahmoud Hamzy but the Crown ultimately submitted that identifying the shooter did not matter because it relied on joint criminal enterprise. The defence strongly contended that it was Witness L who shot Mr Hamzy in the head at close range.
8. Sub-sections (3) and (4) are not relevant.
9. McHugh J was considering similar fact evidence at common law and his judgment was in dissent. However, his Honour's observation is plainly correct and similar statements can be found elsewhere in the many appellate judgments in which evidence of this kind has been considered. 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