R v Qaumi & Qaumi

LEGAL PRINCIPLES AND WARNINGS

1. The accused applied to be tried by Judge alone. This was opposed by the Crown. On 20 October 2016, I made a trial by Judge order under s 132 of the Criminal Procedure Act 1986 (NSW). Section 133(2) of the Criminal Procedure Act requires me to state the principles of law that I apply as well as the findings of fact upon which I rely. Section 133(3) of the Criminal Procedure Act states that where the law requires a warning to be given to a jury, I must take the warning into account in dealing with the matter. I will first set out the general principles of law that I apply and any relevant warnings. I will apply those principles to the evidence and state my factual findings in summarising the evidence and setting out my analysis and conclusions.

Presumption of Innocence

1. Each of the accused is presumed to be innocent. Neither is required to prove their innocence. They are assumed to be innocent unless the prosecution proves that they are guilty.

Onus and Standard of Proof

1. The legal consequence of the presumption of innocence is that the prosecution bears the onus of proof. That onus never shifts. It remains on the Crown from beginning to end. The accused bears no onus. Neither accused is required to prove anything in the trial, least of all that they are innocent of the charges. The standard of proof is beyond a reasonable doubt. Those words and that phrase have their ordinary English meaning. Suspicion, no matter how grave, is insufficient to justify a conviction. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence. The Crown is not required to prove the truth and reliability of every disputed fact or to establish everything that its important witnesses said in evidence.

What the Crown has to Prove: Essential Elements, Accessorial Liability and Joint Criminal Enterprise

Murder

1. The essential elements of the murder charge with which the accused stand charged are: 1. The accused caused the death of Joseph Antoun, 2. This was by means of an intentional or voluntary act, and 3. The act was done with an intention to kill or to inflict grievous bodily harm.
2. There is no evidence that either of the accused did the act that caused Mr Antoun's death. Witness L performed the act causing death. However, the accused may be criminally responsible for Witness L's act on two possible bases, which are legally indistinguishable, at least in the circumstances of the present case. [1]
3. First, the accused may be liable under traditional notions of accessorial or derivative liability. The Crown asserts that each accused was an accessory before the fact to the murder. To establish this, the Crown must prove beyond reasonable doubt that the particular accused encouraged, instigated, counselled or procured Witness L to commit the offence.. [2] It must also prove that Witness L committed each of the elements of the offence of murder (including the specific intention to kill or inflict grievous bodily harm).
4. Second, the Crown relies on joint criminal enterprise. To establish the crime of murder by joint criminal enterprise the Crown must prove beyond reasonable doubt that: 1. The particular accused was party to a joint criminal enterprise, 2. The enterprise was to murder Joseph Antoun, and 3. Between them, the parties to the joint criminal enterprise carried out each of the elements of the offence or murder (including the specific intention).
5. As I have said, there is no relevant distinction in the present case between accessorial liability and joint criminal enterprise. The true issue in this trial is whether the Crown has proved beyond reasonable doubt that the accused gave Witness L the order (or otherwise engaged him) to murder Joseph Antoun.
6. No relevant defence or partial defence (such as self-defence, provocation or substantial impairment) has been raised in this case. I will not consider them further.
7. Neither party suggests that the alternative verdict of manslaughter arises and I can see no basis upon which that alternative could legitimately arise.

Possess pistol

1. Count 2 on the indictment charges that between 1 January 2014 and 5 January 2014 Farhad Qaumi was in possession of a pistol, namely, a 0.38 calibre snub nose revolver, not being authorised to do so by a licence or permit. The elements of this offence are: 1. The accused possessed the 0.38 calibre snub nose revolver, 2. The 0.38 calibre revolver was a pistol or prohibited firearm, and 3. The accused was not authorised to possess the firearm by a licence or permit.
2. There is no dispute that the 0.38 snub nose revolver found in the vehicle occupied by Witness K was a "pistol" under s 4 of the Firearms Act 1996 (NSW). Nor is it suggested that Farhad Qaumi was authorised to possess the pistol. The issue in relation to count 2 concerns the first element - that is, whether the Crown established beyond reasonable doubt that Farhad Qaumi possessed the pistol.
3. "Possession" is defined in the Firearms Act as including any case in which a person knowingly: "(a) has custody of the firearm, or (b) has the firearm in the custody of another person, or (c) has the firearm in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person." [3]
4. The Crown case is that Farhad Qaumi had physical custody of the weapon for a very brief time on 3 January 2014 and was in possession of it from the time it was hidden by Witness L until the time Witness K was arrested and the pistol located in his van. In other words, he was in possession of the pistol because he had it in the place where Witness L hid it, or he had it in the custody of Witness K. The essence of the concept of possession is control.
5. Possession can be joint. It is not the law that only one person can be in possession of an item at any given time. If a number of people exercise control over the item, the law allows that the item can be possessed by more than one person at the same time. So, to use an example from the present case: on 3 January 2014, the pistol may have been in the joint possession of Witness K (because it was in his physical custody) and Farhad Qaumi (because he exercised control over the item and had it in the possession of Witness K).
6. The accused's case is that the pistol was never in Farhad Qaumi's physical custody and he never exercised control over it when it was in the possession of Witness L (or hidden by him) or Witness K.

Separate Consideration of the Case of Each Accused

1. The charges against each of the accused must be considered separately. [4] It is wrong to proceed on the basis that if one of the accused is guilty, they both must be guilty. Conversely, if there is a reasonable doubt in relation to the case of one of the accused, I should take that doubt into account in assessing the case against the other accused. Similarly, if I reject (or doubt) the evidence of a witness who gives evidence against one of the accused, I should take that doubt into account in assessing any evidence that the same witness gives against the other accused. [5]

Drawing Inferences from Direct Evidence: Circumstantial Reasoning

1. I am able to draw inferences from the established evidence. However in doing so, I must first be satisfied of the primary facts. I need not be satisfied of the primary facts beyond reasonable doubt. There is no particular standard of proof to be applied to the individual items of evidence. Rather, it is the combination of facts or evidence that may lead me to infer the existence of facts that are not, or cannot, be proved by direct evidence.
2. Some intermediate facts may be so crucial to the process of reasoning that they are indispensable to the chain of reasoning leading to the inference of guilt. If there are such intermediate facts, they must be established beyond reasonable doubt. [6] The Crown submitted that there was no intermediate fact that needed to be proven beyond reasonable doubt. Neither accused submitted otherwise.
3. When it comes to drawing the ultimate inference of guilt, I must not draw such an inference unless it is the only reasonable inference, or only reasonable hypothesis or conclusion, available on the evidence.

Consciousness of Guilt

1. A particular species of circumstantial evidence upon which the prosecution relies is evidence of a consciousness of guilt. This is evidence that does not establish a direct admission but is relied on as an implied admission because the conduct can only be explained by the fact that the accused knows that he is guilty.
2. There is evidence that Farhad Qaumi took steps to move the murder weapon on 3 January 2014 and then had a series of intercepted telephone conversations with Witness J following the arrest of Witness K later that evening. [7] Initially, Farhad Qaumi used code to inform Witness J that Witness K was arrested because he had a gun ("atgay") in his car ("arcay"). Later in that call, and in two calls that followed, Farhad Qaumi asserted or implied that he did not know why Witness K had been arrested. Insofar as the evidence of using code and denying knowledge of the reason for the arrest is relied upon to establish a consciousness of guilt in Farhad Qaumi's case, it cannot be used in the case against Mumtaz Qaumi. The evidence of the telephone calls between Farhad Qaumi and Witness J is only admissible in Farhad Qaumi's case.
3. The evidence that Farhad Qaumi took steps to move the weapon is admissible against both accused but cannot be used to establish a consciousness of guilt in Mumtaz Qaumi or to establish (by some form of circular reasoning) that Mumtaz Qaumi was aware that Farhad was taking those steps.
4. By itself, evidence of a consciousness of guilt is not capable of establishing guilt. It is tendered as corroborative evidence, as part of the circumstantial case. Before using this evidence against Farhad Qaumi, I must be satisfied of two things. First, I must be satisfied that Farhad Qaumi was deliberately deceiving Witness J as to his knowledge of the arrest of Witness K. Second, I must be satisfied that the only explanation for the evidence (of the use of code and the deception as to his state of knowledge) is that Farhad Qaumi was aware that Witness K was involved in the murder of Mr Antoun.
5. Juries are often warned to be cautious when using evidence of consciousness of guilt because it is difficult to know how or why an innocent person may act in particular circumstances. Juries are urged to consider any other possible explanation for the statement or actions of the accused that are said to demonstrate a consciousness of guilt. In the present case, before using this evidence as consciousness of guilt, a jury would be directed to consider the possibility that Farhad Qaumi's conduct in those telephone calls may have related to his knowledge that Witness K had a gun and that he had played some part in providing it to him (which I understand to be the defence case). I take those warnings and directions into account in assessing this part of the evidence.

Joint Criminal Enterprise and the "Co-conspirator's Rule"

1. While the bodies of evidence against the two accused must be considered separately, the case against them is that they acted together in a joint criminal enterprise. In the case of joint criminal enterprise, each of the participants in the enterprise is held to be responsible for the acts of the other in carrying out the common purpose. [8] If there is reasonable evidence of "preconcert" (that is, evidence of an agreement or the parties acting together), evidence of the acts of one accused is admissible against the other. [9] In this case, the accused accept that there is evidence of preconcert although they either dispute it, or contest the inferences that the Crown seeks to draw from it. With one exception, there was no dispute that the actions of each of the accused are admissible against the other.
2. The exception concerned the evidence of Farhad Qaumi taking steps to move the gun. Initially, when it was adduced on 2 December 2016, no objection was taken to this evidence being admitted against both accused. [10] On 13 February 2017, the second day of defence counsel's address, Senior Counsel submitted that the "business about recovery of the gun" was a "discrete topic which is admissible and only to be used against Farhad." [11] After the short morning adjournment, Senior Counsel confirmed that the whole of Witness K's evidence was inadmissible against Mumtaz Qaumi. The Crown pressed the evidence but conceded that the question of admissibility had to be resolved before I retired to consider my verdict. [12] The question was deferred until 14 February 2017 to enable counsel to prepare for the argument. When the argument resumed, Senior Counsel conceded that the evidence was admissible against Mumtaz Qaumi. [13] That concession was correct. [14]
3. However, the use of the evidence was limited (essentially by agreement between the parties, but in accordance with a judgment delivered following the argument). [15] The Crown accepted that the evidence could not be used to prove that Mumtaz Qaumi had knowledge of Farhad Qaumi's actions on 3 January 2014. Senior Counsel for Mumtaz Qaumi accepted that the evidence could be used as part of the circumstantial case and specifically: 1. To establish a link between both accused and the murder weapon. That is, "as evidence that the weapon that Witness L alleges he showed Mumtaz Qaumi was the weapon that killed Joseph Antoun", 2. To prove the existence and nature of the joint criminal enterprise, and 3. To provide some support for the disputed evidence of Witness L as to where he hid the murder weapon and the fact that he showed both accused men the location of the weapon before his arrest.

Hearsay Evidence

1. Through the cross-examination of various witnesses, the accused elicited a good deal of hearsay evidence. There was a global objection to the evidence if it was to be used to prove the fact of the hearsay representation. The basis upon which this evidence was admitted varied. In some instances it was said to go to the conduct of "the investigation". In other cases it was led to establish that a number of other people had, or may have had, a motive to kill Joseph Antoun. [16] Further, the accused relied on statements made by Mr Elias when interviewed by the police. Mr Elias denied being involved in the murder and provided an explanation for his dealings with the accused. That evidence is contrary to the Crown case that Mr Elias paid the accused to carry out a contract killing.
2. Where hearsay evidence is admitted (particularly for a hearsay purpose, that is, to prove the truth of the hearsay statement) a jury may be warned that hearsay evidence may be unreliable. [17] I must take such a warning into account in dealing with the matter by judge alone. [18] However, because the evidence is relied upon by the accused, it is appropriate to temper the warning to a degree. [19]
3. I take into account a warning that would be given to the jury that the evidence of the various hearsay statements (made by witnesses who did not give evidence) may be unreliable. I take into account that such evidence was not given in the presence of the parties, was not given under oath and was not subject to cross-examination. The extent to which it was accurately or comprehensively recorded is uncertain. Mostly, it was derived from entries on the police computer or from notes made by police officers who interviewed various people who refused to give evidence or were not otherwise called. In many instances the evidence was self-serving. It is for those reasons that the hearsay evidence may be unreliable.
4. Having said that, evidence that Mr Elias denied involvement and evidence that there were other people with the motive and means to carry out the killing is important evidence to be considered in the context of whether the Crown has established its case against the accused beyond reasonable doubt. In each case, the Crown did not call the relevant witness to give evidence. While I must not speculate on what these people would have said if they had given evidence, [20] the accused is entitled to rely on the information gathered by police and statements made by those witnesses as recorded by the police. Where that material gives rise to alternative scenarios inconsistent with the guilt of the accused, it is for the Crown to exclude those possibilities beyond reasonable doubt. However, the out of court statements of people such as Elias, Barbaro and others denying involvement is self-serving evidence worthy of very little weight.

Witnesses and Fact Finding

1. I am entitled to accept part of a witness' evidence and reject other parts. I have watched the witnesses closely and considered both what they say and their demeanour. I am conscious of the "scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances": Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]. Rather than relying on demeanour, it is important to look to objectively established facts, contemporaneous materials and the apparent logic of events.

Witnesses Whose Evidence may be Unreliable

1. The only direct evidence of the accuseds' involvement in the murder of Mr Antoun comes from a number of witnesses whose evidence may be unreliable. These witnesses were criminally concerned in the crimes or are analogous to prison informers. Each has received a substantial reduction in their sentence or received other benefits (for example, they were not charged), as a result of their co-operation with the police or their offering to give evidence against the accused. In each case they have a powerful motive to give evidence favourable to the prosecution. I must take into account the warnings that a jury would receive as to the potential unreliability of this evidence. The evidence of each of the following witness must be assessed in the light of the fact that the law recognises that it may be unreliable.
2. Witness L was criminally concerned in the murder. He has a motive to minimise his own involvement and to blame others. For example, he falsely asserted that he had no intention to kill in spite of the post mortem and ballistics evidence establishing that he fired four or five shots into the chest region of his victim at close range. There is evidence that witnesses I and G persuaded him to give evidence favourable to the prosecution and specifically to provide information that implicated the Qaumi brothers. He was told in clear and colourful terms that the police were mainly interested in obtaining evidence against Farhad Qaumi. He received a total discount of 60% for his plea of guilty and assistance and this included a 20% reduction in his sentence for his promised future assistance. Witness L has a criminal history of violence and was involved (as a shooter) in the murder of Mahmoud Hamzy a few weeks prior to the Antoun killing.
3. Witness M (on her account) was also criminally concerned in the murder of Joseph Antoun. She claims to have been told about the contract and carried out some surveillance of the Antoun residence in the days leading up to the murder. There is no evidence capable of supporting this version of events. In fact, the telephone records and Witness L's evidence do not support it and tend to undermine Witness M's version of events. If this part of her account is false, the balance of her evidence must be treated with extreme scepticism. She was not charged with her involvement in the Antoun killing and received a large discount (50% including her plea of guilty) from the sentence in relation to the Hamzy murder and other criminal activity. The charges she faced were reduced significantly as a result of her belated co-operation with the prosecution. She was motivated out of self-interest rather than any genuine desire to assist authorities or to right a wrong. She demonstrated a strong animosity towards the accused and has a number of strong motives to give evidence against them. She has previously given false evidence under oath.
4. Witness C was criminally involved in the murder of Joseph Antoun as the driver, although he claims, and was sentenced on the basis, that he did not know that the plot was to involve a killing. He received a reduction in his sentence for his offer to give evidence and, like the other informants, has a strong motive to give evidence favourable to the prosecution.
5. Witness K was also criminally involved in the offence. On the prosecution case, he attempted to assist the accused in disposing of the murder weapon. On the undisputed evidence, he was in possession of the murder weapon a short time after the murder was committed. He has a motive to blame the Qaumis for his involvement and has received a reduction in sentence as a result of doing so.
6. Witness J was concerned in a variety of criminal activities although not directly involved in the murder of Joseph Antoun. He received favourable treatment in terms of the charges he faced and a reduction in his sentence as a result of offering to give evidence against the accused. This provides a strong motivation for Witness J to give a false account implicating the Qaumi brothers.
7. Witness A provided information to police in circumstances where he has never been charged in spite of being in possession of drugs and guns. He received an undertaking from the Attorney General that his evidence would not be used against him. He was involved in the criminal activities of the BFL and was in possession of a bag containing guns and drugs which he surrendered to the police. He was not charged with any offence arising from his possession of those items, although the offences carry substantial maximum penalties and standard non-parole periods. As a result, like the other informers, he has a clear motive to implicate the accused and to give evidence favourable to the prosecution.
8. Witness E was criminally involved in one offence committed by the BFL Blacktown although he was not a member of the group and was not involved in the Antoun murder. He received a reduction in his sentence for his co-operation with law enforcement authorities. He has a motive to give evidence implicating the accused. A jury would be warned that his evidence falls into a category that the law recognises may be unreliable.
9. All of these witnesses are "informants" although none of them is a "prison informer". [21] However, the label is not important. What is important is that the law recognises that each witness falls into a category that the law recognises may be unreliable. A jury would receive a strong warning in relation to evidence given by each of these witnesses and I take that warning into account in assessing their evidence. Further, the witnesses were criminally involved in the events in relation to which they gave evidence. In some instances, they were involved in the events giving rise to the proceedings. [22] Once again, the law recognises the potential danger and unreliability of evidence given by such witnesses. A jury would receive strong warnings and I take those warnings into account in assessing this body of evidence and the testimony of each of the witnesses.
10. Some of the witnesses gave evidence of admissions that they allege were made by one or other, or both, of the accused, [23] or attribute words to the accused that are disputed. Such evidence, particularly when given by witnesses such as these, is notoriously unreliable. It is not properly recorded. It is easy to fabricate and difficult to refute. It relies entirely on the say so of witnesses who are motivated to assist the prosecution. A jury would be warned accordingly and I treat the evidence of admissions with extreme caution in accordance with such warnings.
11. In the case of each of these witnesses, I take the approach that it would be dangerous to convict the accused on their evidence alone. I will not act on the evidence unless it receives support from other evidence in the case. Where that support only comes from other informant witnesses, I remain sceptical because of the risk of contamination of their evidence. That contamination might arise through joint concoction or because of the knowledge that the witness has of what other witnesses have said or their knowledge of the police brief. Before I act on the evidence of any of these witnesses, I will look for independent, objective support in the Crown's circumstantial case.
12. None of what I have said means that the evidence of any particular witness is in fact unreliable in this case. It means only that before acting upon the evidence of such witnesses I must examine it closely, exercise caution and look for independent corroboration of what they have said.

Prejudicial Evidence, Evidence of Bad Character and Tendency Evidence

1. There is a body of evidence that demonstrates that the accused were involved in criminal activity in the time leading up to Mr Antoun's murder and before their arrest. This includes gang related activity, drug dealing, possession of guns (or attempts to retrieve guns in the possession of a fellow gang member) and acts of violence. There is also evidence of their involvement in the shooting of Mahmoud Hamzy and another man at Revesby Heights on 29 October 2013. That shooting resulted in the death of Mahmoud Hamzy.
2. It is important not to reason that the accused are more likely to be (or are) guilty of the murder of Joseph Antoun because they may be people of bad character or otherwise involved in criminal activity. For the most part, the evidence of other criminal activity was adduced to place the events into their true context and to explain the behaviour of the witnesses. In some instances, it is relied on by the defence to establish alternative reasons for meetings that the Crown says were connected to the Antoun murder.
3. In respect of the Hamzy shooting, the Crown relies on the evidence as tendency evidence. However, the Crown relies on a very specific tendency, namely, a tendency to engage Witness L to perform shootings on their behalf. The use of the evidence must be limited in that way. Placing the label "tendency evidence" on this material is not particularly helpful, although I held, over objection, that it was admissible under ss 97 and 101 of the Evidence Act 1995 (NSW). [24] The evidence is admitted as part of the Crown's circumstantial case and is relied upon to support the inference that it was the accused, not somebody else, who engaged Witness L to shoot Joseph Antoun. Its probative force lies in the fact that the accused engaged Witness L to carry out a shooting some weeks earlier, albeit in different circumstances.
4. The evidence cannot be used to reason that because the accused were involved in an earlier shooting, they are therefore more likely to have murdered Joseph Antoun. Nor can it be used to attribute to the accused a "rank propensity" or "mere tendency" to commit acts of violence or be involved in criminal activity involving the use of guns. As I have said, while it was tendered and admitted as "tendency" evidence, it is ultimately just one piece of the Crown's circumstantial case and its attempt to bolster the credibility of its informant witnesses.

Prejudicial Material Not in Evidence

1. I am aware of a large amount of prejudicial material that is not in evidence in the trial. This includes evidence led in the jury trial relating to the Hamzy killing and other shooting incidents. It also includes material received on the voir dire and excluded from that trial. There is also material received on the voir dire in the present trial or subject to various applications by the accused, police and NSW Crime Commission. I have also received evidence and made a number of factual findings in the course of sentencing Witness L and Witness M. [25] The case, and other events and characters surrounding the case, has been subject to a large amount of media interest and reporting. There have also been a number of incidents in the courtroom, some involving violence and others where there was interaction with witnesses, and the suggestion or allegation of implied threats to witnesses or attempts to influence witnesses.
2. I have disregarded all of this material in reaching my decision. The decision I have made is the result of a consideration and analysis of the evidence admitted in the trial. In particular:

• None of the material received into evidence or rejected in the Hamzy trial has played a part in my factual determinations in the present proceedings.
• I have put out of my mind any evidence rejected in the course of the present trial and the material produced by the Crime Commission or NSW Police and inspected in the course of both trials.
• As to the evidence and findings in the sentencing proceedings; again I have disregarded that evidence and note that the findings made in those proceedings were made on the basis of different evidence and, often, without the benefit of any true contradictor or substantial testing of self-serving assertions made by the offenders.
• The incidents that occurred in court were not relevant in any way to the determinations that I need to make in the trial. Each was explicable by the stress and pressure of the proceedings which have continued, in total, for a period in excess of a full calendar year.
• As to the media reporting, while I am generally aware of it, I have not read, viewed or studied it in any detail and it has played no part in my consideration of the evidence.

The Silence of the Accused

1. The accused did not give evidence in the trial. Nor did they volunteer any information to the police. [26] The accused have a right to silence. Their silence cannot be used to fill in gaps that otherwise exist in the prosecution case and no inference can be drawn against them because they have not provided an explanation for the circumstantial case or refuted the evidence of the informant witnesses. Such an approach would be "incompatible with the presumption of innocence, and the right of the accused neither to give, nor to call evidence at trial". [27]

Motive

1. There is no evidence of any animosity between the victim and the two accused men. In fact, there is no evidence of any connection between them at all. The accused rely on this absence of evidence to submit that there is no established motive in the accused to carry out the murder. Further, they point to a body of evidence establishing that Joseph Antoun had a number of enemies including people who had threatened to kill him and those who had the means and connections to kill him. None of those people have given evidence and one of them (Pasquale Barbaro) was murdered during the currency of the trial.
2. The prosecution does not have to establish a motive in the accused to commit the crime with which they are charged. [28] However, the existence of a motive in the accused may have a capacity to strengthen the prosecution case. [29] Equally, an absence of motive "is commonly relied upon as a circumstance tending in favour of ... a person accused of a crime." [30] However, there is a distinction between the "absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other." [31]
3. It is obvious that, as a matter of fact and logic, the existence of motive in people other than the accused will make the prosecution's job of proving the offence beyond a reasonable doubt more difficult.
4. While the accused point to the evidence that shows that others had a motive to kill Joseph Antoun, the Crown submits that there is an established motive in the accused to commit the murder. The prosecution case is that the murder was a contract killing and that the accused were promised and received a large sum of money to organise the assassination. In other words, the prosecution case is that there is evidence to support an established motive in the accused, namely receipt of money to organise the killing. The Prosecution also relies on evidence suggesting the accused wanted to have a business relationship with Elias who was a competitor of Joseph Antoun.

THE EVIDENCE

1. After ventilation of pre-trial issues, the trial commenced on Monday 31 October 2016 and the first witnesses gave evidence on that date. The trial commenced during the course of the deliberations of the jury in a trial involving Farhad and Mumtaz Qaumi and three other men. The evidence was interrupted from time to time to attend to the jury, to respond to its questions and to take its verdicts. The evidence continued until Wednesday 7 December 2016 when the prosecution closed its case and each of the accused indicated that no evidence would be called beyond that which was adduced through the Crown witnesses.
2. The prosecution called 39 witnesses and tendered 75 exhibits (marked Ex A - ZZZ). Between them the accused tendered 48 exhibits (marked Ex 1 - 48). I have taken into account all of the evidence in reaching my verdicts. It is unnecessary to recount the whole of the evidence in the body of this judgment. A great deal of the evidence is not in dispute although there is controversy around the inferences that should be drawn from the evidence.
3. There is no dispute that Witness L carried out the shooting and that Witness C drove him to and away from the scene of the crime. There is no dispute that Witness L acted with a murderous intent although he claimed that he did not intend to kill Mr Antoun. Based on the number of shots fired and the direction in which they were fired (to the upper body of the victim), I reject that part of his evidence. I am satisfied beyond a reasonable doubt that Witness L shot Mr Antoun with the specific intention to kill him. In any event, at the very least he acted with an intention to inflict really serious injury (grievous bodily harm). There is no dispute that Mr Antoun's death was caused by the act of Witness L. Similarly, there is no dispute that the murder weapon was the 0.38 calibre snub nose revolver located in the vehicle driven by Witness K on 3 January 2014.
4. The accused do not dispute that they were associated with Witness L, Witness C and Witness K through their membership of the BFL Blacktown. They do not dispute that they had a number of meetings and conversations with Witness L, Witness M and Les Elias before and after the shooting of Mr Antoun. There is no dispute that Elias made a payment of $80,000 into the bank account of Mumtaz Qaumi on 20 December 2013 and that the accused had use of a Lamborghini motor car, the property of Pasquale Barbaro and/or Les Elias. There is no dispute that on 3 January 2014, the accused (Farhad Qaumi) attended the vicinity of the home of Witness L, met with Witness K and was driving near to Witness K shortly before his car was pulled over and searched (resulting in the location of the murder weapon). There is no dispute that early the following morning Farhad Qaumi had a conversation with Witness J in which he spoke about the possibility that Witness K had been arrested over possession of firearms, albeit that part of the conversation was in a code described as "pig Latin".
5. Much of these undisputed facts of conversations, transactions, meetings and people's locations at various times, are established by surveillance evidence, closed circuit television (CCTV) recordings, telephone intercepts and other official records.
6. The accused do not dispute many of the primary facts upon which the prosecution's circumstantial case is based. Rather, the dispute is about the inferences that can safely or properly be drawn from those facts. For example, the $80,000 deposit is explained by reference to other business dealings between the Qaumi brothers and Elias; the meetings with fellow BFL members and associates are explained by other activities of the group.
7. The summary that follows is an overview, generally in the order in which the evidence was called at the trial. It does not purport to deal with or summarise all of the evidence even though the decisions that I have reached are based on the whole of the evidence. The categories of witness and evidence are as follows: 1. Joseph Antoun's family and neighbours. 2. The crime scene and autopsy findings. 3. The murder weapon. 4. Surveillance police, the officers in charge of the investigation and telephone records. 5. The informant witnesses.

The Family and Neighbours of Joseph Antoun

1. Teagan Mullens [32] was the partner of Joseph Antoun having met him eight years before his death. The couple had two children, twin girls aged six years. She said that she was aware that Mr Antoun had spent some time in gaol and that he was "involved in the construction industry." As to the precise nature of his work, her evidence was uncertain. She said "he didn't discuss much of his business stuff with me."
2. Elias "Les" Elias was a business partner of Mr Antoun. They worked together and at one stage lived together. However, they parted "on bad terms" and "we were left with nothing". This occurred at around the time she was pregnant with her twins, that is, six years before the murder. However, she said that "the Les Elias situation never really went away. It was always up in the air." A man called George Alex had been Mr Antoun's "business partner or colleague" for some time prior to his death. As to the nature of their association and business, she did not know much at the time but, since the murder, had learned more. She said "I was just a mum, didn't know much at all". She believed that they were involved in the "construction industry, being scaffolding and labour hire." Ms Mullens said that Elias had a scaffolding yard in the same area ("next door") and that both her husband and Elias were trying to buy the same scaffolding. The details of this were sketchy and based on what Ms Mullens had been told. At some stage, there was a $500,000 deposit into Ms Mullens' bank account. Ms Mullens didn't know where the money came from and Mr Antoun told her it was "for business purposes" and the money was soon dispersed.
3. Ms Mullens gave evidence of Mr Antoun's daily routine including his use of methadone. At the time of his death he was attending a methadone clinic in Newtown which he would attend daily at 6:00am before going to work. His routine was to come home each night to put the children to bed.
4. On Monday, 16 December 2013 Mr Antoun left the house at 6:00am and the next time Ms Mullens saw him was around 9:00pm when he got home. He was late and immediately went to put his daughters to bed. Ms Mullens heard the door-bell and met Mr Antoun in the hallway (or kitchen area) where there was a monitor for the CCTV cameras that were installed at the front of the house. She asked if he was expecting anybody and went to the small window near the front door to see who was there. There was a person standing at the door with their arms across their chest. She pulled the curtain back and realised that she didn't recognise the person at the door. She asked who was there and the man said it was "Adam with a package for Joe". Adam (also known as Abuza Sultani or "Abs") was a friend who had dropped Mr Antoun home "10 minutes before". However, Ms Mullens did not recognise the person at the door - it was not Adam.
5. Ms Mullens realised too late what was happening. Mr Antoun opened the door. The person outside looked shocked and began shooting. She saw the shooter's face under a hooded jumper. She saw the shooter run from the house. Mr Antoun was holding his chest and fell forward. His face was bloody and he was lying in a pool of blood. Ms Mullens called Triple 0 while attempting to comfort Mr Antoun and stop the children from coming in to the front area of the house. The children had woken up by this point but remained in the master bedroom.
6. Under cross-examination by Mr Stratton SC, Ms Mullens agreed that her late husband had been charged with "extortion" and had been in and out of gaol over the past 30 years. Since his death, she had heard that he was involved in "debt collection". She gave vague evidence about his relationship and a dispute with a Cunyet Kilicoglu but did not know whether her husband had organised for Kilicoglu to be shot about a week before his death. She was aware of a dispute over wine with Pasquale Barbaro and was told after the murder (of her husband) that Barbaro had threatened to kill Mr Antoun. She was aware of a "punch up" between Mr Antoun and a person called Big Willy Tofilau about "six months before he died" (as it was put) although she was not clear on the timing. She agreed that Mr Antoun obtained a vehicle from a Jim Byrnes, that the latter was a "well-known Sydney standover man" and read in the newspaper that Byrnes called Burwood police to say that he was not responsible for the murder. She agreed there was a dispute with a man called Angelo Russo and that Russo had stolen millions of dollars from the family business. She had little knowledge of a man called Boskovski who was "shot dead" in July 2013 at Earlwood and she knew nothing of a dispute between her late husband and the Comanchero Motorcycle Club over a large sum of money.
7. Mr Young SC cross-examined Ms Mullens about the man Adam or Abs and his change of name. After Mr Antoun died she heard that Abs was involved in the Rebels motorcycle gang. Mr Young established that it was Mr Elias who owed money to Mr Antoun and not the other way around. Ms Mullens confirmed that she and Mr Antoun had known Les Elias since about 6 years prior to the murder and lived with him for some time. When the relationship broke down the Sheriff knocked on the door and told Ms Mullens and Mr Antoun that they had to move out. Ms Mullens said that Les Elias stole a large amount of money from them but they had not attempted to get the money back legally.
8. Two of Mr Antoun's four brothers gave evidence.
9. Nemer Antoun [33] (Nemer) gave evidence that Joseph worked in the construction industry, labour hire and traffic control businesses. He said there was a falling out between his brother and Les Elias around five or six years before the murder. He gave evidence of Joseph Antoun's involvement in a business called Elite Scaffolding and his own involvement with Active Labour, a company owned by the sister of George Alex, which supplied workers for Joe's business. He described a conflict with people he named as Jim Byrnes, Angelo Russo and Kevin McHugh. He also referred to Les Elias as being part of the business conflict. He said "the people behind it are still on the loose, they're having coffees overseas and laughing at us." He said that Les Elias and Jim Byrnes "worked against us" and were the "ringleaders". The evidence in chief lacked precision and was difficult to follow.
10. In cross-examination, Nemer gave evidence of disputes that Joe had with others with whom he was in business or competition and agreed that he had written a letter to the DPP saying: "Joe was murdered because he would not have allowed them to get away with stealing our family assets. The group involved Les, Jim and Angleo plus others that would sit at the meetings in Les's office. The Qaumi brothers will be charged for ordering the murder … however there is no connection between Joe and the Brothers For Life. It's Joe's business partners who have paid to have him murdered."
11. Nemer said that Jim Byrnes and Angelo Russo stole millions of dollars from the (Antoun) family and reneged on a deal to repay the money. He said that Joe confronted Russo about this a short time before the murder. [34] He denied knowledge of rumours that Jim Byrnes blamed Joe Antoun for vandalising cars and assaulting his staff or that Joe had a dispute with the Comanchero Motorcycle Club. However, he knew that Joe had been blamed for a "drive by" shooting at Jim Byrnes home.
12. He was also asked about associations between Joe Antoun and Michael Cohen (who he did not know as Odisho), Doug Westerway (an ex-policeman who was employed "to organise our business") and a number of others. He agreed that Joe Antoun had punched Westerway for insulting Joe's wife. He gave evidence of a phone call in which his brother told him to be careful and to tell Joe if he received calls from the group including "Jay or Jimmy, Doug Westerway and Michael Cohen." He was also asked about evidence given at the Royal Commission into the building industry and about "weekly kickbacks of $2,500" being paid by Westaway (on behalf of Mr Alex and presumably Joe) to the CFMEU. He was questioned about Karen Nettleton, Khaled Sharrouf and Bill Fatrouni. He denied the suggestion that his brother was a stand-over man for George Alex.
13. Nemer was emotional while giving evidence. This was understandable in the circumstances. While he was clearly motivated to defend his brother and his evidence at times was vague, he presented as a witness doing his best to tell the truth.
14. Antoine Antoun said that he was not involved in Joseph's business but was able to give evidence of some of his brother's dealings and associations. He confirmed the relationships with George Alex, Michael Cohen, Jay (an "ex-police officer of Turkish background"), Doug [Westerway] and Les Elias. He said that "Les took all our money". He said that Joe Antoun told him that Pasquale Barbaro wanted to kill Joe and that he had tried to kill him before but the children had got in the way. He gave evidence of what Ms Mullens told him on the night of the murder - "Someone turned up at the front of the house. I told Joe not to answer it but he did and he got shot through the front door." In cross-examination, he was unable to confirm or deny suggestions about kickbacks to the CFMEU and other matters. He denied the suggestion that his brother was a debt enforcer. He confirmed that Joe told him that Pasquale Barbaro had tried to kill him and that this happened a month or so before the murder.
15. Kevin Jin [35] lived next door to the Antoun family. He heard about five loud gunshots at around 9:36pm. He said there was a half second space between the shots. He and his father went out into the street and heard a woman yelling "don't die on me". He spoke to police on their arrival at the scene.

First Response, Crime Scene Evidence, Findings on Post-Mortem Examination

1. Amongst the first police on the scene were Constable Blake Wood [36] and Sergeant Samantha Kelley. [37] Each gave evidence of their observations and how they dealt with the immediate aftermath of the shooting. Stewart Clarke [38] is an intensive care paramedic who arrived at the scene at around 9:40pm. He saw others working on the patient and trying to revive him. After examining Mr Antoun, he "pronounced the patient deceased".
2. Dr Rianie Van Vuuren [39] performed a post mortem examination on the deceased and gave expert evidence of her findings. Joe Antoun died of multiple gunshot wounds. She described four entrance wounds. These were in the left upper arm, the left upper chest (2), and the right elbow. There was a "re-entrance" gunshot wound on the right upper chest. She was asked about the distance from which the shots were fired. She described it as "intermediate" which, depending on the gun, was "on average" "further than about a metre". In the course of her examination she recovered four projectiles. These were provided to police and were later subject to ballistics examination. Detective Deon Kelly [40] was present during the autopsy and took possession of a number of exhibits including the four bullets or projectiles recovered from Joseph Antoun's body.
3. Senior Constable Ellen Konza [41] is a crime scene officer who examined the scene of the shooting and, later, examined a Lexus motor vehicle and some burnt clothing. She took a number of photographs [42] and recovered discs containing CCTV footage from the front of the house. [43] The actions of the shooter are recorded in the CCTV footage but their face cannot be identified. She noted damage to the front door and a cupboard inside the house that was generally behind where Mr Antoun was standing when he was shot. She recovered a "single bullet" from within the damaged cupboard.
4. None of this evidence was in dispute or subject to any significant cross-examination. It is clear from this evidence that Mr Antoun was shot from relatively close range when he opened the front door of his home to a stranger. The significance of the evidence in terms of the issues in the present trial is twofold. First, it establishes the intention of the shooter (to kill or to inflict really serious injury) beyond reasonable doubt. Second, the projectiles recovered from the deceased and the crime scene were forensically examined and led to the identification of the murder weapon.

The Murder Weapon

1. On 3 January 2014, that is about 18 days after the murder, a 0.38 calibre Smith & Wesson snub nose revolver (serial number 798127) was located by police within packaging in the rear of a vehicle (BN8 7HX) driven by Witness K. Senior Constable Teasel, [44] Senior Constable Whitaker [45] and Detective Senior Constable Jeffcoat [46] each gave evidence of the vehicle stop and search.
2. The vehicle was Witness K's work van and the rear of the van contained a number of boxes and tools relating to the installation of Foxtel (or Austar) set top boxes. The gun was located inside a cardboard box containing one of the set top boxes. It was wrapped in a number of plastic bags including a series of zip-lock resealable bags. Subsequent examination of these bags led to (at least) three forensic findings of significance. First, fingerprints of Witness L and Witness K were found on two of the plastic bags. [47] The fingerprint evidence was given by Kate Reid, [48] a crime scene officer with expertise in fingerprints. Secondly, female DNA consistent with that of the DNA profile of Witness L's girlfriend or de facto partner was located on one of the bags. [49] In passing it should be observed that Witness L could provide no explanation for his partner's DNA being found on the bag. [50] A forensic biologist and DNA expert, David Bruce, [51] gave evidence on the last day of the trial that the presence of DNA could possibly be explained by secondary transfer.
3. The third finding of significance was that there was no forensic evidence (fingerprints or DNA) connecting either of the accused with either the gun or the bags within which it was located.
4. Matthew Bolton [52] (and another ballistics expert who was not called) examined the revolver and other ballistics material. The examination established that the four projectiles located in the body of Mr Antoun were fired from the 0.38 revolver located in the rear of Witness K's car. The gun was a prohibited pistol. [53] This evidence was not challenged.
5. The projectile that was located in the cupboard behind where Mr Antoun was shot was not able to be conclusively matched to the revolver. However, its location, the evidence of some witnesses that they heard five shots and Witness L's evidence that he fired all of the bullets in the revolver allows for the conclusion that the projectile found in the cupboard was fired at the same time.
6. I am satisfied beyond reasonable doubt that the 0.38 calibre revolver found in Witness K's van on 3 January 2014 is the weapon that was used to kill Joseph Antoun.
7. As I have said, there is no forensic evidence connecting either of the accused to the murder weapon. However, the prosecution relies on evidence that Farhad Qaumi was with Witness K shortly before he was arrested in possession of the revolver. As at 3 January 2014, police were conducting surveillance. Part of that evidence came from Detective Jeffcoat. This was based on his own observations and, I gather, from things he was told by other surveillance police. He observed Farhad Qaumi meet with Pasquale Barbaro and Les Elias in, or near, the Star City Casino at 7:30pm. Farhad Qaumi was followed from the Casino to the vicinity of 12 Sheffield Street, Auburn which was the residential address of Witness K. Two vehicles were then followed to a fast food restaurant, and then on to the vicinity of 100 The Homestead, Orchard Hills, the address of Witness L. By that date, Witness L was in custody. Farhad Qaumi was driving one of the vehicles (a Ford four-wheel drive ZJB 819). The other vehicle was Witness K's work van (BN8 7XH). The vehicles were followed from the Orchard Hills address to the M4 Motorway. They were heading in an easterly direction but, at that stage, they were not traveling in convoy. Shortly thereafter, Senior Constable Teasel stopped Witness K and undertook the search that uncovered the murder weapon.
8. This evidence was not disputed. [54] While the evidence does not establish a direct connection between the accused and the murder weapon (let alone the murder itself), the Crown relies on the evidence as part of its circumstantial case. It provides some support for the evidence of Witness K and places in context telephone calls between Farhad Qaumi and Witness J early in the morning following Witness K arrest. [55] However, it also stands alone as part of the circumstantial case on which the Crown relies to connect Farhad Qaumi to the weapon that was used to murder Joseph Antoun.

Surveillance and Associated Evidence

1. A number of police officers gave evidence of surveillance operations that were carried out on 11 December 2013, 16 December 2013, 17 December 2013 and 3 January 2014. I have already referred to the evidence of surveillance on 3 January 2014 relating to the movements of Farhad Qaumi and Witness K in the period prior to the seizure of the murder weapon.

11 December 2013

1. Six officers gave evidence of the surveillance conducted on 11 December 2013. [56] Two Observation or Surveillance Reports were tendered that summarised the observations made by the officers on that day. [57] A large map and a number of photographs (or CCTV still images) were also tendered. [58]
2. This evidence showed that Farhad Qaumi and two other males arrived in a silver Mercedes (BNI 15E) at Coleman Park in Lidcombe at around 7:20pm on Wednesday 11 December 2013. Witness M arrived in a Mazda CX 5 (CMV 327) a few minutes later (7:23pm). The three men walked to the Mazda. There was some conversation and one of the males appeared to put something in the Mazda. The Mazda left the area at 7:33pm and the Mercedes left at 7:36pm. The Mercedes was followed and seen to head east towards the city on the M4 motorway at around 7:40pm.
3. At 8:10pm the Mercedes was parked on Liverpool Street in the Sydney CBD. In the rear of the car was a man who appeared to be Witness L. There is CCTV footage outside of an establishment called the Shark Bar depicting Les Elias and Farhad Qaumi embracing each other and walking together (or near one other) in an east-west direction on Liverpool Street. In cross-examination of Constable Murdoch [59] it was established that he did not see "the Qaumi brothers" and Les Elias enter The Shark Bar and the officer confirmed that they were only seen on the street outside. The surveillance police lost sight of Farhad Qaumi for a period but the vehicle was seen at 8:30pm driving down Liverpool Street, then south on George Street and then west on Broadway. There were three males in the car and it stopped at a BP Service Station on the corner of Parramatta and Missenden Road at Camperdown. At that point it seems that a different surveillance team took over. Farhad Qaumi was identified as a person "fuelling the vehicle" at 8:35pm.
4. The vehicle was driven to Five Dock. At 8:52pm the car stopped in Spencer Street, Five Dock about 10 metres west of William Street. Farhad Qaumi and two males (inferentially Mumtaz Qaumi and Witness L) were observed standing on the corner of Spencer and Williams Streets between 8:57 and 9:05pm. At 9:08pm the Mercedes remained stationary with its lights on and the three men were standing near the vehicle. At 9:29pm Witness M's "black" Mazda CX5 SUV (registration CMV 32Y) was observed to travel west on Spencer Street and out of sight. It had been parked in the vicinity of the Mercedes but there is no recorded observation of when it arrived in that position. It was not followed and where it went is a matter of contention in the trial. There were no recorded observations of the three males between 9:29pm and 10:10pm when the Mazda returned. At that stage the log records that an "unknown female (herein referred to as UF1) exited via the driver's door and UM1 exited via the rear driver's side door. [Farhad] Qaumi, UM1 and UF1 walked toward the northern end of Spencer Street." A description is provided of the female and there is no dispute that this was Witness M. [60]
5. Officer 1623 [61] made the observation recorded at 10:10pm. In cross-examination he said: "Q. Did you have the vehicle, the Mazda, under continuous observation when you were in that position or were you looking back occasionally to see what was happening? A. Yeah, I was looking back. I had - I had, yeah, constant observation of it. I recall that where it was positioned I couldn't see the passenger side clearly of the vehicle but I could see the driver's side, down the driver's side of the vehicle quite clearly and into the middle of the road." [62]
6. There was re-examination and further cross-examination on this issue, which has some significance in light of the evidence of Witness M that the accused showed her and Witness L the Antoun residence that night: [63] "Q. From what you said, your view of the passenger side was obstructed? A. Yes, I could not tell what - if there was persons getting out there, to be honest. Q. Your next observation recorded then is Qaumi, UM1 and UF1 walked towards the northern kerb of Spencer Street. Did you see where - and this is Farhad Qaumi - did you see where Farhad Qaumi came from to be with the two persons who had got out from the driver's side? A. I believe he was from the northern side, so he didn't - I know he definitely didn't come from the southern kerb because that meant he would have had to cross in the middle of the street. However, he's come from the northern side of the vehicle. Q. And you said the southern side was where the Mercedes Benz was parked, is that right? A. That's correct. Q. If I could just then take you back. You were taken through some observations the page before, 21.08. At 21.08 you make observations and so your next observation is over an hour later, is that correct, 22.10? A. Yeah, that's correct. Q. For that period, were you remaining in that area of Spencer Street, Five Dock? A. Yes. So, what happened, as I explained earlier, I - at 21.08 I drove past on William Street and made that observation. I remained in that vicinity for some time and then I believe prior to 22.10 I actually took up a position in Spencer Street. And then my observations start there, when I saw movement. Q. At 22.10? A. At 22.10, yeah. I can't tell you exactly the time that I moved into Spencer Street, but yeah. Q. So do we take it then, where you have that entry 21.08 - and I appreciate the entry above is not yours, but it is an entry where it has 20.57 21.05 so it is a period of about eight minutes? A. Yep. Q. Does that mean where you have 21.08, it is just an observation made that at time? A. Yes, yes. Q. So it is not a continuous observation? A. No, it is not a - yeah, so that was at that time. Q. And there is no observation recorded until 22.10. Does that mean that you did not have sight of those persons Qaumi, UM1, UM2 between that sighting at 21.08 until you saw Qaumi and UM1 and UF1 at 22.10? A. That's correct. STRATTON: Your Honour, there is an ambiguity in one of the witness's answer that I would seek leave to clarify. HIS HONOUR: Is there any objection? CROWN PROSECUTOR: No, your Honour. Q. Officer, I just want to be clear about an answer which you gave which I think was I am not being critical, but it was ambiguous. You were asked: "Your next observations recorded then is Qaumi, UM1 and UF1 walk towards the northern kerb of Spencer Street. Did you see where - and this is Farhad Qaumi - did you see where Farhad Qaumi came from to be with the two persons who had got out from the driver's side?" And you answered: "I believe he was from the northern side, so he didn't - I know he definitely didn't come from the southern kerb because that meant he would have had to cross in the middle of the street. However, he's come from the northern side of the vehicle." I am taking you to that answer you gave. A. Yep. Q. I understand there is an ambiguity about that answer. I just want to be clear about this. The observation which you recorded contemporaneously and which was recorded in the surveillance log note was that, at 22.10, you first observed Qaumi walking towards the northern kerb of Spencer Street, correct? A. Yes. Q. I just want to be clear about this. You have not said that you saw him getting out of the vehicle, correct? A. That's correct." [64]
7. At 10:10, the occupants of the two cars were seen conversing in the vicinity of the vehicles and Farhad Qaumi and Witness M were "hugging and kissing". When a marked police car drove south on William Street, the various parties returned to their vehicles and left the area.
8. Sergeant Russell [65] was cross-examined about an error in recording the time of some of the observations. Officer 1866 [66] was the reporting officer (that is, the officer who made the entries on the Surveillance Report) and was asked about the method of recording the observations of the various officers in the team. He was asked about the observations of the Mercedes at or after 10:23pm and it was established that the "only time that it went south of Parramatta Road was in Burwood Road" and that Jersey Road Strathfield (the murder scene) was one suburb further south. Officer 1623 and Officer 1687 were also cross-examined in relation to the method of recording and the movement of the vehicle and particular observations each had made at various points. A Detective Sergeant O'Reilly [67] also gave evidence.
9. This review of the evidence and cross-examination is not exhaustive but there was no real challenge to the general thrust of the evidence of surveillance on 11 December 2013. It appears that the surveillance commenced at 7:20pm and there is no surveillance evidence of where the cars and their occupants were before that time. However, the cars arrived at, or near, Coleman Park separately, around 3 minutes apart, at 7:20pm and 7:23pm respectively. Again, this has some significance in light of some of the evidence of Witness M.

16 December 2013

1. The evidence of surveillance on 16 December 2013 is to be considered in the light of the fact that the murder occurred at around 9:35pm that night. Two officers (Detective Senior Constables Price [68] and Hearn [69] ) gave evidence of the surveillance. A bundle of captioned photographs was also tendered. [70] The evidence was not challenged.
2. At around 7:00pm police observed a group of five men at the Subway restaurant in Kellyville. The group included Farhad Qaumi, Mumtaz Qaumi, Witness L and Harris Sadat, each of whom was associated with the Blacktown BFL. The captions on the photographs suggest the fifth man was Masieh Amiri. There was some discussion around a mobile telephone. Farhad, Mumtaz and Witness L left in the silver Mercedes (BNI 15E) previously associated with Farahd Qaumi. The vehicle was observed to leave the area driven by Farhad Qaumi.
3. At around 10:40pm surveillance police observed Witness L on the street outside his home in Orchard Hills. He was standing next to a black Lexus (AMZ 63L) and was not wearing a shirt. Witness L then walked towards his home and the Lexus left the vicinity. It headed to the M4 Motorway and travelled in an easterly direction. It pulled over into the breakdown lane in the area of Wallgrove Road.
4. Keith Weise [71] was employed by the Roads and Maritime Services Department and was responsible for traffic patrols on the M4 on 16-17 December 2013. He said that around 11pm on 16 December 2013 he observed the black Lexus (AMZ 63L) stopped on the side of the road. It had a flat tyre and Mr Weise and his colleague helped the driver to change the tyre. He gave a description of the driver ("male, Middle Eastern appearance, about 180 centimetres tall, short hair, thin build"). The vehicle drove off at around 11:22pm. There is no doubt that the driver was Witness C.

17 December 2013

1. Detective Senior Constables Magnus [72] and Amey [73] gave evidence of their observations on 17 December 2013. This was the day after the murder. A surveillance report signed by four officers and a number of CCTV still images were tendered. [74] The cross-examination pointed to some inconsistency between the records and the statements but there was no challenge to the thrust of the evidence which I am satisfied established the events recorded in the following paragraph.
2. At 2:27pm Farhad Qaumi and Mumtaz Qaumi attended the Shark Bar in Liverpool Street Sydney and entered the poker machine area. At 3:03pm Les Elias entered the Shark Bar and also entered the poker machine area. He left that area, went to an ATM, and returned. At 3:22pm the three men left the area and sat together in the main bar area of the Shark Bar. There was a news story on the television about the Antoun murder and the three men appeared to watch the television and then turn away when the story ended. At 3:57pm the three men left the hotel and at 4:10pm were talking in or near a silver Mercedes sedan (BNI 15E). At 4:15pm the three men shook hands and left the area.
3. While the evidence concerning the movements of the three men and their locations at various times establishes a meeting and conversation between them on the day after the murder, I place no weight on the fact that the police observations suggest that they watched the news item concerning the murder. The reliability of that evidence may be affected by the perceptions of the officers but, more importantly, the fact (even if it was accepted) that the men watched a news item concerning a murder is not capable, in any rational way, of establishing (or affecting the possibilities) that the two accused men and Mr Elias were involved in the murder.

3 January 2014

1. I have already referred to the evidence of Detective Senior Constable Jeffcoat relating to the surveillance that preceded the arrest of Witness K on 3 January 2014. [75] This evidence was not disputed and the Crown relies on it both to support the direct evidence of Witness K and as part of its circumstantial case in that it provides an inferential or indirect connection between Farhad Qaumi and the murder weapon.

The officers in charge of the police investigation

1. The two officers with carriage of the investigation gave evidence and a number of exhibits were tendered by both sides. The officers were Detective Senior Constable McAneny [76] and Detective Sergeant Peter Smith. [77] This evidence was important in establishing aspects of the Crown's circumstantial case and providing inferential support for its informant witnesses. It was also critical for the defence because, through these witnesses, the accused was able to tender evidence that cast doubt on the evidence of the informants and established the facts upon which alternative suspects - that is, others with a motive to harm Joseph Antoun - were identified. Through the evidence of these police officers, certain hearsay statements were elicited along with the fact that a number of persons with animosity toward Mr Antoun, or who were otherwise connected to him or his business dealings, had not been interviewed or had refused to co-operate with the police.
2. Detective Senior Constable McAneny was the "second in charge" of the investigation. He gave evidence in chief of the initial investigation and the search of premises associated with Witness C. Witness C declined to be interviewed. On 10-13 February 2014, Police obtained CCTV footage from a number of premises in the vicinity of Sunnyholt Road and Bessemer Street Blacktown. Stills were tendered [78] and copies were marked by the witness. [79] The CCTV footage related to the day of the murder (16 December 2013) at times between around 7:15pm and 8:05pm. They depicted cars consistent with a silver Mercedes (like the one associated with Farhad Qaumi) and a black Lexus (like the car driven by Witness C) being driven in close proximity to one another in the area of Bessemer and Forge Streets in Blacktown. Aerial photographs and a large map showing the areas around Blacktown were also tendered. [80] Police charged Witness L with the murder on 21 January 2014 and interviewed him on 14 October 2014. On 10 February 2014 police located some burnt items in the area of Landsdowne Road at Orchard Hills. These included an Apple iPhone and some clothing.

Cross-examination of Detective McAneny

1. The cross-examination of Detective McAneny elicited evidence of a number of people who had motive to do harm to Joseph Antoun, the failure of the police to obtain statements from a number of such people due to their refusal to co-operate or otherwise, a denial of involvement (and refusal to testify) on the part of Les Elias and statements made to investigating police by some of those people (including Pasquale Barbaro). A number of documents were tendered during the course of the cross-examination. These included a document setting out the results of forensic examination (fingerprints and DNA) of the murder weapon and the bags in which it was located. [81] This connected (by fingerprints) Witness C and Witness L to the weapon and also disclosed, surprisingly in the light of evidence given later in the trial by Witness L, the DNA of Witness L's girlfriend on the bags.
2. Les Elias was living in the Philippines and refused to return to Australia to give evidence. There was evidence that there was an extradition treaty with the Philippines and it appears that no attempt was made to extradite him. Police met him in the Philippines and Investigator's Notes dated 3 and 4 April 2014 were tendered. [82] These purported to summarise conversations between Elias and the police. The basis upon which this evidence was admitted turned on whether it was first or second hand hearsay. Where it was first hand hearsay, it was admitted as going to the truth of the assertions or representations contained in the document. Where it was second or third hand hearsay - that is where Elias told police things that others had told him - it was admitted on a limited basis. [83]
3. Elias denied any involvement in the killing of Joseph Antoun. He told police he "would never employ someone as crazy as the Qaumis to do something like a contract hit". He described the business dealings he had with the Qaumi brothers including the proposed purchase of Mumtaz Qaumi's kebab shop. Originally, he was asked to look for buyers for the shop but later decided to purchase and run it himself, or put others in to run it. Elias told the investigators that he believed he had paid $100,000 for the Kebab shop. There was evidence of text messages and telephone intercepts that supported the involvement of other people seeking to gain access to the shop to run it (presumably on behalf of Elias). [84] Elias also told investigators about the purchase of a truck for which two payments of $10,000 were made. A portion of a "minute book" was tendered showing that Mumtaz Qaumi was the director of a company called "Mikaels Transports Pty Ltd". [85] Elias said he provided a bank cheque for $100,000 to Farhad Qaumi in exchange for cash. This $100,000 appeared to be subject to a Crime Commission seizure relating to a bank account operated by Farhad Qaumi but evidence was produced showing that the money was a "gift" from Elias. This document was located in a search of Farhad Qaumi's premises. [86] Elias referred to lending Farhad Qaumi a Lamborghini sports car.
4. Elias also told police about other people and their associations and links to himself, the Qaumi brothers and Joe Antoun. This included Pasquale Barbaro and the fact that Mr Antoun owed Barbaro a large amount of money. He doubted Barbaro would commit the murder (because he would not be able to recover the debt) but could not rule it out. He nominated people that he considered the "most likely suspects" for the murder. They may have been motivated to kill Mr Antoun to obtain a bigger slice of the business or to destabilise the business. He referred to Jay Kilicoglu, Abuzar Sultani and others - including Doug Westerway, Jimmy Kendrovski and George Alex - as people who may have shared or had the same or similar motivations.
5. Detective McAneny was also asked about a man called Jim Byrnes. Byrnes called the police shortly after the murder to deny any involvement in the killing. He did so because he believed he would be a suspect. He was interviewed but declined to make a statement and did not give evidence. He told police that there was "bad blood" between him and Joseph Antoun (and his business partner, George Alex). Byrnes told police that Mr Antoun had bashed a "business associate" of Mr Byrnes and vandalised a number of his vehicles. He said that he believed that Mr Antoun was behind a drive-by shooting at Byrnes house because there had been a heated argument a few days before the shooting. Byrnes told police that Pasquale Barbaro had said, referring to Mr Antoun, "I'm going to kill him". This evidence received support from the evidence given by Antoine Antoun to which I have already referred.
6. Investigators also spoke with Pasquale Barbaro. He "flatly denied" involvement in the shooting and, more generally, denied using violence in the course of his business as a "mediator". He had spoken to Mr Antoun about debts that Mr Antoun owed. The pair met through a mutual contact with the Hells Angels motorcycle club. He told police that he believed the Qaumis saw Elias as somebody they could stand over ("stamp") for money. He said that he was with Elias shortly after the murder and that Elias was not upset but "seemed genuinely perplexed as to how it occurred" and "didn't look like a bloke who'd just arranged a murder". He also spoke about Mr Elias lending Barbaro's Lamborghini to Farhad Qaumi.
7. Mr Antoun's business partner, George Alex, did not provide a statement to police but told them of Joe Antoun's attendance at a meeting at his property on the night of the murder. Even though it is clear that Mr Sultani was present, neither Alex nor another witness at the meeting referred to Sultani being there. Detective McAneny knew little of a person called [redacted] who was a brother-in-law to Witness M and said to be in position to supply guns. However, he confirmed that [redacted] refused to make a statement in the matter.
8. Detective Smith was the officer in charge of the investigation. He gave evidence of the initial investigation including the arrest of Witness C, the search of his premises, his initial reluctance to speak to police and the circumstances in which he came to co-operate with police. He gave similar evidence in relation to Witness L. Both of those witnesses initially refused to co-operate but subsequently assisted police when charges were reduced and letters of assistance were promised. A number of documents were tendered through Detective Smith that comprised important parts of the Crown's circumstantial case.
9. A document was tendered that showed that Mumtaz Qaumi's kebab shop was offered for sale through Gumtree in the latter part of 2013 for an asking price of $25,000. [87] The Crown contrasts this with the much higher price ($190,000) agreed between Mumtaz Qaumi and Les Elias. An ANZ banking document, seized during the course of a search of Mumtaz Qaumi's premises, showed a transfer from "KPM" of $80,000 into Mumtaz Qaumi's account on 19 December 2013. [88] Westpac bank statements showed $80,000 going into Mumtaz Qaumi's account on 20 December 2013 and there was a reference to "Elias Elias Kebab Shop". [89] There were other documents located in a search that related to Mumtaz Qaumi's business interests, including a contract for sale of Mikaels Transports and an application and registration of a business name (Erina Kebab House) on 28-30 August 2013. [90] The same search uncovered a bank account statement from Westpac in the name of Mrs Wasillah Qaumi with a balance of $27,500 noting she had been a customer since 6 December 2013. [91] A document dated 2/09/13 evidenced a gift of $100,000 from "Les Elias, director of KPM building Pty Ltd" to Farhad Qaumi for "family restitution". [92]
10. A number of CCTV images with captions [93] and a series of telephone intercepts [94] provided evidence of meetings between various players. This evidence is to be considered with surveillance evidence referred to at paragraphs [97] - [113] of this judgment. I will summarise this evidence briefly and in chronological order.
11. On 3 December 2013 Farhad Qaumi attempted to contact Les Elias by 'phone and text message. On 4 December 2013 both Farhad and Mumtaz Qaumi spoke with Elias by telephone. There was discussion about providing contracts for "the shop" and a reference to "a hundred and ninety grand for the shop [with] twenty grand deposit." On 5 December 2013 Elias told Mumtaz Qaumi "I done it, that's out of the way" and the "so now you can't sell it - that shop's mine." He laughed after making that comment. [95] At 3:44pm on 9 December 2013 Mumtaz Qaumi and Elias discussed meeting "at the same place. Upstairs" and CCTV stills from the Shark Bar Hotel shows a meeting between the three men between around 5:30 and 6:45pm. On 10 December 2013 there was discussion between Farhad Qaumi and Elias about "documents regarding that manufacturing plant". On 11 December 2013 Mumtaz Qaumi spoke to Elias about a factory.
12. On 11 December 2013 there were 'phone calls between Witness M and Mumtaz Qaumi about meeting that day at Lidcombe. The language specifying the venue of the meeting was circumspect. This evidence dove-tails with the surveillance evidence of the meetings at Lidcombe that day.
13. On 16 December 2013 (the day of the murder) there are telephone intercepts involving the accused, Harris Sadat, Masieh Amiri and Witness C. There is a text message from Farhad Qaumi to Elias at 1:51pm asking "wats happening with my wages" and a message from Elias to Mumtaz Qaumi saying "I need that Warranty papers for the truck … also a receipt for the deposit for the shop". Mumtaz responded at 5:10pm "I will drop off warranty for the truck and show you [receipt] for the shop tomorrow". Between 5:10pm and 5:20pm Mumtaz Qaumi's telephone dialled the number of Witness C on nine occasions but the calls were not answered. This evidence is to be considered with the surveillance evidence of meetings later that day. I will return to the telephone and surveillance evidence relating to the day of the murder later in this judgment.
14. On 17 December 2013 telephone intercepts captured conversations between the accused and Les Elias. Mumtaz Qaumi made reference to "that warranty book … for the truck" and confirmed that he had "the invoice for the deposit as well". Elias said they could sign an agreement and that he would "start paying you off for the rest of that shop" with a view to taking possession next year. Mumtaz asked about "the Lambo". Plans were made to meet and the meeting was observed by the surveillance police later in the day at the Shark Bar. On 17-18 December, there were discussions about Elias organising a hotel room so that the group could celebrate Mumtaz Qaumi's birthday. On 18 December 2013 there is a sequence of conversations suggesting that Elias was driving on the freeway to the central coast and arrangements to meet the accused at a particular exit. The meeting was botched but eventually it seems that the group found each other, a Lamborghini was given to the Qaumis and arrangements were made to celebrate Mumtaz Qaumi's birthday.
15. On 19 December 2013 there are CCTV still images and telephone intercepts establishing meetings between the accused and Elias at the Star City Casino. A woman called Amber Williams was also present at the Casino Hotel.
16. On 20 December 2013 telephone intercepts record Elias asking if Mumtaz Qaumi had checked his account and saying that "it just left mine" and "I am the owner of the shop now". In a later call, Elias refers to a Turkish guy who owns about 15 of them (kebab shops) and franchises them.
17. On 3 January 2014 there are CCTV stills showing the two accused, Elias and Barbaro at the Star City Casino and there are telephone intercepts between Farhad Qaumi, Witness K and Witness M. This is the day that police made observations that preceded the arrest of Witness K and the seizure of the murder weapon.
18. Detective Smith also produced photographs and certificates connecting Farhad Qaumi to the silver Mercedes C 63 registered BNI 15E and Witness M to the black or very dark coloured Mazda CX5 which had two registrations (CQU 03K and CMV 32Y) during the relevant period.
19. The final item tendered through Detective Smith was a telephone intercept between Pasquale Barbaro and Farhad Qaumi on 30 December 2013. Apart from establishing the association between Barbaro and Farhad Qaumi, the substance of this call is of no moment to the issues in the trial.

Cross-examination of Detective Smith

1. Senior Counsel for Farhad Qaumi questioned Mr Smith about other people with a motive to harm Joseph Antoun and in relation to connections between his various associates. Apart from confirming much of the evidence of Detecitve McAneny, it was also established that police had information of the following matters: [96]

• [Redacted] was the brother-in-law of Witness M, lived in Five Dock and was known to be the supplier of guns to criminals.
• Vasko Boskovski was an associate of Joseph Antoun and was shot dead in July 2013 at the front door of his home in Earlwood.
• Jim Byrnes told police about a number of people in conflict with Mr Antoun including Wesam Hamzy. There was a recorded telephone call on 22 June 2013 where Wesam Hamzy and Pasquale Barbaro discussed debts owed by Mr Antoun. There was an allegation that in November or December of 2013 that Barbaro and members of Hamzy's group "[grabbed] Joseph Antoun and George Alex and [tried] to force the repayment of debts".
• Wesam Hamzy told police that Pasquale Barbaro told Hamzy that he had made a previous attempt of Mr Antoun's life but did not carry out the deed because his wife and daughters answered the door. In re-examination, the Detective said that he had asked Ms Mullens about this and that there was no evidence that this incident occurred. Ms Mullens gave no evidence of such an incident.

1. The cross-examination emphasised that none of the witnesses who gave this information to police, or who were implicated by it, provided statements or gave evidence and it was submitted that "the wall of silence surrounding this case from a number of witnesses who nearly certainly know things, is a reason to have a reasonable doubt." [97]
2. A series of telephone intercepts involving Farhad Qaumi between 10 and 17 December 2013 was tendered. [98] These demonstrated conversations with people who were not associated with the murder and provided evidence of Farhad Qaumi's location at various times. Otherwise, the calls had no particular relevance to the issues in the trial and no emphasis was placed on them during the addresses.
3. The cross-examination on behalf of Mumtaz Qaumi elicited material relevant to the sale of the kebab business. [99] This included a series of text messages and telephone calls that placed the sale of the kebab shop to Les Elias in a different context. Mr Elias told police that there was a "clean explanation" for the transfer of money to Mumtaz Qaumi. [100] The intercepted communications relied on by the accused showed conversations about the possible sale of the business to a person called Fred on 14 December 2013. It is to be recalled that Elias stated "that shop's mine" on 5 December 2013 but that the transfer of $80,000 from Elias to Mumtaz Qaumi did not occur until 20 December 2013. There was a text message to the lessor (Belinda) on 27 December in which Mumtaz Qaumi said "I have someone that wants to buy the shop and start trading asap". A 'phone call on the same day identified "Les Elias" as the purchaser and the suggestion that he may operate it as "a franchise" but the lessor insisted on payment of the rent. On 28 December there were text messages in which Elias attempted to arrange for his manager to inspect the shop and from 3 - 6 January 2014 there were communications between Mumtaz Qaumi and "Christian" (who said that he represented Les Elias) in relation to the transfer of the lease and business. A chronology relied on by Mumtaz Qaumi was used as an aid to Mr Young's address. [101]

Detective Smith recalled

1. Detective Smith was recalled at the end of the Crown case. [102] He provided evidence of the sequence of events relevant to the possibility of contamination of the evidence of Witness L and Witness M in relation to the sale of Mumtaz Qaumi's kebab shop and the telephone intercept material concerning Les Elias. The relevant evidence of those matters was served after Witness M and Witness L had made their statements. He also gave other evidence tying up some loose ends concerning the firearm and confirming that Farhad Qaumi and Witness M were seen by police in Granville Park at 11:30pm on 3 January 2013 and taken to Granville Police Station. Two other people (Mohammed Aboulhalka and Omar El-Cheikh) were said to be nearby.
2. In further cross-examination, a number of Google maps were tendered along with a schedule allowing comparison between the telephone connections between Witness M and Witness L. [103] There was cross-examination about Witness L's interview on 14 October 2014. This demonstrated that Witness L told police that it was Les Elias (not Pasquale Barbaro) who the accused nominated as the person from whom they accepted the contract to kill Joseph Antoun. This evidence must be considered with the evidence in re-examination of Witness L. [104] It was also established that a number of potential witnesses refused, or were not asked, to make statements. Further telephone intercepts were tendered including a call between Barbaro and Wesam Hamzy on 23 June 2013 in which the participants exhibited great animosity towards Joe Antoun. [105]
3. For completeness I mention the evidence of Detective Senior Constable Robyn Bowes [106] who attended the scene of the crime on the night of the murder and canvassed a number of neighbours. She subsequently made a number of investigations and obtained various pieces of CCTV footage from different locations but none of this material was of much relevance to the issues in the trial. CCTV stills from premises in Jersey Road Strathfield at 11pm on 11 December 2013 were tendered and admitted over objection. [107] These depicted a "silver" vehicle driving by the murder scene and there was a suggestion that the car in question may have been Witness M's Mazda. However, the colour of the car shown in the stills is inconsistent with the colour of Witness M's car and I reject the suggestion that this exhibit might be used to bolster the credibility of Witness M's account that she, the accused and Witness L drove passed the premises on 11 December 2013.

TELEPHONE RECORDS AND RELATED EVIDENCE

1. The parties tendered a variety of documents calculated to establish the use and movements of various telephones said (or agreed) to be associated with the accused and some of the witnesses. [108]
2. The telephone records were derived from different and diverse sources. There were records from Telstra, Optus and Amaysim as well as the NSW Crime Commission. The formats of the records were different and there was not much evidence explaining what could properly be deduced from the evidence. In some cases, the records were cumbersome and even misleading on their face. By way of example, exhibit 17 (a document of 151 pages obtained from the NSW Crime Commission) appeared to suggest multiple telephone calls when there was, in fact, only one call. For instance, a communication on 11 December 2013 at 10:45 was covered by sixteen entries in the document, even though there was only one call or text message. The misleading nature of the record only became clear upon the tender of Ex UUU and evidence given by "CC" (an engineer from the Crime Commission). [109] To add insult to injury, Ex UUU ran in the opposite chronological order to Ex 17 although it contained, more or less, the same information. Ultimately a version of Ex 17 was provided that had a series of numbers and/or letters beside the records that related to individual calls of text messages.
3. Witness CC gave evidence explaining the records of the NSW Crime Commission and also gave evidence of his knowledge of how cell towers worked. His expertise in that area was somewhat limited. The parties also tendered documents that provided helpful summaries of the raw data.
4. The records demonstrated the cell tower through which a mobile telephone connects. The records show the name and location of the cell tower. There was no evidence of the expected coverage of the specific cell towers and the evidence is not capable of establishing the location of a telephone (let alone its owner) with any degree of certainty. The evidence was that the 'phone connected to the tower with the strongest signal rather than the closest tower. However, where a 'phone connects to different towers (either in the course of one call or in a sequence of calls), this is "almost certainly involved with somebody moving the 'phone" or, at least, that is the probable explanation. [110]
5. The records were capable of providing circumstantial evidence of the approximate location of people's mobile telephones. When the records indicated movement and either calls or texts were most likely made by the owner of the 'phone, they provided evidence of the approximate location of the user of the telephone.
6. In some instances, the telephone evidence cast doubt on, and potentially contradicted, the evidence provided by the Crown witnesses. For example, there was nothing in the records relating to Witness M's telephone that supported her evidence that she had carried out some kind of surveillance on the Antoun household in the days between 11 December 2013 and the murder on the 16 December 2013. In fact, the evidence tended to contradict her evidence because the 'phone was moving and in a number of locations far away from Strathfield. The people with whom the communications related suggested, to a degree of near certainty, that they were her calls and texts. The records also showed that a telephone associated with Witness L was not in the same location as Witness M's 'phone on the days she suggested they were carrying out surveillance together.
7. What I have just demonstrated is merely one example of the use to which the parties put the telephone records. There were a number of others referred to in counsel's addresses.

THE INFORMANTS' EVIDENCE

1. The direct evidence of the accused men's involvement in the murder comes from a number of people who were either members of the BFL Blacktown or otherwise connected with that group. The Crown called seven such witnesses. Two of them (Witness L and Witness M) gave direct evidence of their own involvement in the murder as well as that of the accused. Two others (Witness C and Witness K) gave evidence that they were directed by the accused either to drive Witness L to the scene of the murder or to dispose of the murder weapon. The final three informant witnesses (Witness J, Witness A and Witness E) gave evidence of peripheral relevance including the nature of the BFL Blacktown, its activities and command structure and particular incidents of violence within the club. Each of the witnesses - but in particular Witness M and Witness L - was subject to a formidable attack on their credibility. I will deal with the evidence in the order in which it was adduced at the trial. Again, what follows does not purport to be comprehensive but contains the critical parts of the evidence led against the accused and the most significant aspects of the attack on the credibility of the particular witness.

Witness J

1. Witness J is a [redacted] of Farhad and Mumtaz Qaumi. He was criminally involved in the activities of the BFL Blacktown and received a substantial discount for his offer to give evidence against the accused. [111] Part of his evidence was adduced by tendering a transcript of evidence he gave before a jury on 30 June and 1 July 2016. This evidence related to his knowledge and involvement in a shooting at Revesby Heights on 28 October 2013 and the structure and activities of the BFL Blacktown in general. He gave evidence before me that is relevant to the disposal of a weapon and a conversation he had with Farhad Qaumi in the hours after the arrest of Witness K.

The BFL Blacktown

1. In the earlier trial, Witness J gave evidence that Farhad Qaumi was the leader of the BFL Blacktown and that Mumtaz was the second in command. He said he had seen firearms in the clubhouse but there is no suggestion that these were relevant to the shooting of Joseph Antoun. He said that Farhad Qaumi ruled the group with fear, alleging that the latter told him that "he put fear in the member's hearts and they'll obey him." His evidence of violence within the group was vague.

The Revesby shooting

1. He gave evidence of the events of 29 October 2013. He said that Witness M told Farhad, and then others, that Mohammed Hamzy (the leader of the BFL Bankstown) paid someone to try to kill Farhad. He said that he advised Farhad not to react to this threat and that Farhad became angry with him. He spoke of a number of meetings that occurred that afternoon, involving Witness M, both of the accused and a number of members of the BFL Blacktown. He said that Mumtaz agreed with Farhad's proposal "to get Mohammed Hamzy". He said that Mumtaz always agreed with Farhad. He said that Farhad told members of the group "you have to go kill Mohammed Hamzy" and that this included Farhad's brother (Jamil), a person called "Nasser" and Witness L. Initially, Farhad wanted Witness J to drive the car but Witness M volunteered. He gave some more details of the planning and conversations that preceded the Revesby Heights shooting. He said that he saw Farhad load a 0.45 calibre gun while wearing gloves. He said Farhad gave the "45" to Witness L and said "Don't shoot yourself, its ready to shoot" and that he (Farhad) took the safety off. He said that Farhad planned to be at the "Coolibah gym - an RSL Club or something" so that he was "under the cameras when the murder takes place. He has an alibi." He said that on 29 October 2013 there was a meeting at which he was told what had happened at the Hamzy residence. He was told that the wrong person was shot. He was directed by Farhad Qaumi to speak with a member of the BFL Bankstown and did so.
2. This evidence was elicited by the Crown for a particular purpose, namely to establish a tendency in the accused to direct Witness L to carry out shootings on their behalf. The evidence cannot be used in any other way. The fact that Witness L was directed or requested to carry out the Hamzy shooting is not disputed. However, the circumstances of the two shooting are, self-evidently, entirely different. The Hamzy shooing was a response to a threat posed by Hamzy to kill Farhad Qaumi whereas the Antoun shooting is alleged to be a contract killing. The only tendency it is capable of establishing is the accuseds' use of Witness L as a shooter. It has no real probative value to any other issue in the case.
3. In cross-examination in the jury trial, [112] Witness J provided a more detailed account of what Witness M told Farhad and the other members of the group in the lead-up to the Revesby shooting. He agreed that Witness M appeared to have a lot of influence over Farhad and that Farhad appeared to be "very concerned" about what she was telling him and the group. He appeared to be "extremely paranoid".

The disposal of the weapon, arrest of Witness K and conversations with Farhad Qaumi

1. Witness J gave evidence of driving to Canberra with Farhad and Mumtaz Qaumi around Boxing Day of 2013. He said there was a discussion in which Farhad told him that he had a firearm stored somewhere that he wants to move and that it was in the bushes somewhere around Penrith. Farhad said the gun was a "small 38" that came from "[Witness M]" and that it had been used by "[Witness L]". In cross-examination, Witness J agreed that all he could really remember was that something was said about a small 38, something was said about Penrith and something was said about Witness M and Witness L. He was unable to say whether what Farhad actually said was "that Witness M had supplied a small 38 to Witness L and that he had used it" but he was clear that Witness M was the supplier of the gun. [113] In the jury trial, Witness J agreed in cross-examination that Witness M was a person who had access to guns. [114]
2. Telephone intercepts of three 'phone calls between Farhad Qaumi and Witness J on 4 January 2014 were tendered. [115] The calls related to the arrest of Witness J's brother, Witness K, and must be considered in the context of the surveillance evidence that preceded the arrest, the identification of the gun as the murder weapon, a telephone intercept involving Witness K recorded at 10:38 on 3 January 2014 and the conversation referred to in the last paragraph. [116]
3. SC Teasel gave evidence that Witness K was arrested shortly after 10pm and that the gun was located at around 11:15pm. [117] The call at 10:38pm was from Witness K and the other speaker was not identified but said "it's your brother-in-law". Witness K said (partially in a foreign tongue [118] ): "[The police have got me] I'll call you back in five minutes." And "Yeah. Tell him. [Detectives] pulled me over, I'll call him back in ten minutes."
4. He did not say why he was arrested or that the police had located a firearm in his possession. In the first call between Farhad Qaumi and Witness J at 2:02am the following morning, Farhad Qaumi said of Witness K "I think he got locked up" and "I think they found an At-Gay in his Ar-cay". Witness J gave evidence that "At-Gay" was code (pig-Latin) for gun and Ar-cay was code for car. Witness J said "Fuck, why did you give it to him for bro" after which Farhad became angry (or sounded like he did) and said "I haven't given nothing to no-one, what the fuck are you talking about". He went on to say "what the fuck are you on about you idiot … giving what to who? What?" Farhad said he was "just telling ya what he told 'Moey'. He goes 'I got pulled over'. That's all I meant." Witness J was told to make inquiries to find out the location of the police station where his brother was being held.
5. In a call recorded at 2:07am Witness J sought more information as to the area in which his brother was arrested. Farhad said: "I don't know anything cuz. I don't know nothing cuz. All I know, we got pulled over me cuz, and this girl got pulled over cuz and I overheard the coppers saying something about a white van, that's all I know brother." And "And he rang Moey and he goes he got pulled over. I don't know if it was for drive driving [sic]. I don't know what it was for. I don't know anything brother. And now I'm trying to call his phone and his phone is off."
6. Witness J was directed to ring Parramatta Police station and all the western suburbs police stations.
7. At 6:52pm on 4 January 2014 Witness J called Farhad and provided a report of what he had found out. He said that police had been at his father's house and said "there was another guy behind him and they, they they said someone's name [I won't say your name, the name like], yeah and then I go nah, I go, I go yeah it got nothing to do with anyone ... I don't know what you're talking about, he wasn't being followed by anyone."
8. There was a discussion about Witness J and Farhad seeing it "on the news". Witness J said he was "spewing" because "the cunts never been in trouble before in his life" and was "supposed to go fucken Tamworth bro in two days work".
9. Farhad asked whether the arrest was "on the M4". Witness J repeated that there was another car and that "some guy starting with F was in it" but that Witness J said he's "got nothing to do with that guy … we don't even associate with him." Farhad said he was pulled over on 3 January 2014 in Guildford and Witness J confirmed "these dogs are trying to say that you were behind him, I go nah, it just not true, it not true at all". Farhad agreed saying "na that's bullshit man" and "I don't know nothing about anything … I haven't got nothing to do with no one brother." Farhad went on to say that he did not know "what the fuck had happened" apart from the fact that Witness K called Moey. He told Witness J "if I was behind him, wouldn't they, wouldn't they have pulled me over too."
10. The conversation became tense after Witness J again said he was "spewing" and "dirty" because his brother "had his life on track". Farhad accused Witness J of "[leaving] us posted" and said "he would never look at you the same ever again bro, ever again brother". It is not clear precisely what these words mean, but Farhad Qaumi's tone was tense, if not angry. He repeated that if he had he been driving nearby the police would have pulled him over and said "I am innocent and they are trying to throw my name around".
11. This series of conversations is relevant to the issue of Farhad Qaumi's knowledge and involvement with Witness K in the period shortly before the latter's arrest. Initially, Farhad Qaumi referred to Witness K being arrested with a gun but later claimed that he did not know why he was arrested. The earlier call from Witness K to "Moey" made no reference to the reason for his arrest. However, evidence from Witness M suggested Farhad may have heard about the reason for Witness K's arrest from police. [119] At no stage did Farhad tell Witness J that he had been with Witness K earlier in the evening or what they had been doing together. The Crown contends that this evidence gives rise to an inference that Farhad knew that Witness K was arrested because he was in possession of a gun. It is capable of providing some support for Witness K's evidence as to how he came to possess the murder weapon and provides an indirect, but potentially important, connection between the accused and that weapon. However, it is not capable of establishing that Farhad knew that the weapon was used in a murder let alone that he had executed a contract on behalf of Elias by directing Witness L to carry out the murder. The evidence of these calls between Farhad Qaumi and Witness J was not admitted in Mumtaz Qaumi's case.

Credibility issues

1. Witness J was criminally concerned in the criminal activities of the BFL Blacktown and received a substantial reward for his co-operation with police. He is a witness whose evidence may be unreliable and his testimony must be carefully examined before it is safe to act upon it. Under cross-examination, he was prepared to make concessions but his memory of detail was not always clear. The cross-examination was designed to clarify and elicit further information rather than to impeach his credibility altogether. A good deal of his evidence is not in dispute and parts are corroborated by independent evidence such as telephone records and intercepts. The accused place some reliance on his evidence to impeach the credibility of Witness M. When asked in address whether Witness J should be considered to be a witness of credit, Senior Counsel for Farhad Qaumi said "largely, yes." [120] I accepted his evidence.

Witness M

1. Witness M gave evidence over seven days from 17 - 28 November 2016. Most of this time was occupied by cross-examination. Her evidence was in dispute in most significant respects. Because of the adverse findings I have made as to her credibility, I will indicate where her evidence is not in dispute or where it receives support from other evidence.

Evidence in chief

1. It was not in dispute that Witness M came to meet the Qaumi brothers through her long time association with the Hamzy family. She had been the girlfriend of Bassam Hamzy in around 1998 -1999 when he was in custody for murder and other serious offences. By 2013 she had come to know Mohammed Hamzy, the leader of the Bankstown chapter of the Brothers for Life. It was through this connection that she came to meet Farhad Qaumi, the leader of the BFL Blacktown. She was aware of discussions between the groups and their leaders concerning the area in which each would operate and she passed messages between them. She said the Blacktown chapter was to operate between Granville and Blacktown.
2. She was taken to the 28-29 October 2013 and gave a version of events concerning her involvement in the shooting at Revesby Heights. In some respects her account was not in dispute but it was clearly suggested that she was understating her involvement and role in the shooting. By way of example, she gave a different version of what she told Farhad and the others as to the threat posed by Hamzy and claimed that she was co-opted into being the driver. Other witnesses suggested that she volunteered for that role and, where the evidence was in conflict, I accept the evidence of Witness J and Witness L over that of Witness M. There was no dispute that Witness L was employed by Farhad and Mumtaz Qaumi to carry out the shooting of Mohammed Hamzy. I need not go into further detail of her evidence as to the Hamzy shooting. Where it is not in dispute, or where it accords with the evidence of the other witnesses (specifically Witness J and Witness L) I accept it. Otherwise, the conflicts in the evidence are only significant in that they reflect upon Witness M's credibility and provide a further reason - and there are many - to treat her evidence with a great deal of caution.
3. Witness M said that prior to the Antoun shooting she met with Farhad and Mumtaz at a "little dead end street in Blacktown". She said that Farhad told her that he had been offered $200,000 by Les Elias to kill Joe Antoun. She said Mumtaz was present in the area but was not sure whether he was there when Farhad told her this. However, both of the accused were present when she was told how the money would be paid: [121] A. Les was gonna get - Mumtaz was selling his kebab shop and Les was going to give them $150,000 for the kebab shop, even though it wasn't worth that, just to, like, cover the money so it's clean. And Mumtaz could keep - like, Les wasn't buying the kebab shop. Mumtaz could keep it and Les would just get someone to run it for him and Mumtaz would keep the money.
4. Witness M also said that Farhad told her that the Crime Commission seized $100,000 from Farhad's son's bank account and that Elias went to the Crime Commission to say he had given Farhad the money. She said that she had referred Farhad to a particular lawyer to assist with the Crime Commission proceedings.
5. On 12 December 2013 she rented a motor vehicle. [122] She gave evidence that the day before she rented the car - that is, 11 December 2013 - she met with Farhad, Mumtaz and Witness L at Lidcombe. She drove to the location in her Mazda and then travelled in Farhad's Mercedes with the three men to Strathfield where they looked for a house. They had difficulty finding the house and a call was made to Elias. Farhad said that they had to go to the city to "meet Les." Later that night, she met with Farhad, Mumtaz and Witness L at Five Dock and they all jumped into her car. They drove to Strathfield again and looked for an address which Les had described as having "a tree in the front of the yard, a shit box car and a double-storey, like a big house next door to it." Eventually they found a house that met that description. Witness M identified a photograph of the house. [123] She said that Farhad told Witness L to "remember this house" and that they then drove back to Farhad's car in Five Dock. She said that she gave her car to her nephew and rented the car the next day on Farhad's instruction.
6. Witness M's account of the meetings and movements on 11 December 2013 receives general support in the surveillance evidence and the telephone intercepts. [124] However, contrary to parts of her evidence, the surveillance evidence establishes that she did not arrive at Coleman Park in Farhad Qaumi's Mercedes - the vehicles were seen to arrive separately. The surveillance team did not follow the Mazda when it left Williams Street Five Dock at 9:29pm and there is no evidence that directly supports her evidence that the group then drove to and from the Antoun residence in Strathfield. However, Farhad Qaumi's Mercedes remained in the same spot until the Mazda returned at 10:10pm. The evidence of Officer 1623 was that [Witness M] and at least one male emerged from the Mazda on its return. That officer could not see the other side of the car or say where Farhad came from when the group - Farhad Qaumi, Witness M and two unidentified males (Mumtaz Qaumi and Witness L) - were observed together in Williams Street after the return of the Mazda at 10:10pm and the departure of both vehicles 10:22pm. As will be seen, it is conspicuous that Witness L did not remember whether Witness M was present on 11 December 2013 but the surveillance evidence suggests that, on this issue at least, Witness M's memory is to be preferred.
7. Witness M said that over the next three days she used the rented car to carry out Farhad's instruction to go with Witness L, to watch the house and to identify a person described as "a bald guy, he's a junkie and he jogs at 6 o'clock every morning". She said they were supposed to conduct this surveillance "like before 6 o'clock, but we didn't." She said that she and Witness L spent "hours" over three days watching the house but they didn't see the "bald guy" because they were "hardly ever there … we would just drive around or like sit in a park or sit in a street." This version of events was extremely vague. For example, the time of day was never made clear and telephone records and synopses of intercepted calls suggested that her 'phone was making calls from locations far away from the Strathfield area. [125] Witness L gave no evidence of any such reconnaissance in the days leading up to the murder. While some of the telephone records allow for the possibility that her 'phone was in Epping (unanswered) for periods where she may have been conducting some kind of surveillance in the Strathfield area, I have grave reservations about this part of her evidence.
8. Witness M gave evidence that after the shooting Farhad Qaumi told her that "the hit was done" and that "he got [Witness L] and [Witness C] to do it" but that "[Witness L] fucked up because the guy had cameras and he didn't cover his face." She said Mumtaz was present during that conversation.
9. Finally, Witness M gave evidence of being with Farhad Qaumi on the night of Witness K's arrest. She said that they met in a park in Granville or Guildford. They were walking near Farhad's brother-in-law's house and were stopped by police. They were taken to Granville Police Station, held for 45 minutes, and left together in a taxi. She was dropped at Parramatta and Farhad went on to the Central Coast. She said Farhad told her that Witness K had been arrested and that she heard Farhad speak to Witness J on the telephone. Aspects of this part of her evidence received support from the evidence of Witness J and the telephone intercepts.

Cross-examination and credibility issues

1. The cross-examination of Witness M ranged over several days and many subjects. It is unnecessary to recount in detail the areas in which her evidence was demonstrated to be inconsistent internally or in conflict with other evidence in the case. Nor do I need to summarise the extensive, thorough and skilful cross-examination undertaken on behalf of each of the accused by Mr Stratton SC and Mr Young SC. However, to understand the reasons I have come to the view that Witness M's evidence cannot be accepted unless it receives support from other evidence, it is appropriate to set out some of the more troubling aspects of her evidence.
2. Witness M's co-operation with law enforcement authorities came very late. She had knowledge of, and direct involvement in, two homicides and a number of other serious crimes in the latter part of 2013 but did not assist authorities until 2016 when she made a series of statements and then entered pleas of guilty. In the meantime she gave evidence at the NSW Crime Commission and, on her own admission, lied under oath. [126]
3. Witness M's admission that she perjured herself in giving evidence at the Crime Commission has an obvious impact on her credibility. But her examination in that place also has, potentially, a more subtle impact on her credibility. The evidence suggested that the method of examination at the Commission involved providing the witness with information that had been gathered in the course of an ongoing investigation. [127] This had the capacity to contaminate versions of events that she later provided to the police or gave in evidence. Witness M said "she couldn't remember what happened at the Crime Commission". It was not made completely clear what information the Crime Commission actually disclosed to Witness M but it was clear that she had been asked questions about the sale of the kebab shop and the meetings and 'phone calls on 11 December 2013.
4. Similarly, the fact that her plea came so late meant that she and her lawyers were served with the entirety of the prosecution brief. Accordingly, and assuming that she read and digested the brief or relevant parts of it, she was in a position to tailor her evidence to fit in with evidence already gathered by police. Similarly, her evidence may have been contaminated unconsciously by things that she had read in the brief.
5. Putting aside the possibility of contamination, the evidence shows that Witness M is a manipulative person, motivated by self-interest, with a capacity to lie to achieve her own ends.
6. Based on the evidence of Witness J and Witness L, I am satisfied that Witness M understated her involvement in the Hamzy shooting. I do not accept her evidence as to what she told Farhad Qaumi about Mohammed Hamzy's intentions and I formed the view that she deliberately minimised the things that she told the group in order to shift the blame for the Hamzy killing to others (specifically to Farhad Qaumi). I accept that she volunteered to drive when Witness J exhibited reluctance to be involved whereas her evidence was that she was co-opted by Farhad Qaumi to be the driver. In this regard, I accept the evidence of witnesses J and L, and reject Witness M's evidence that she was a reluctant participant.
7. Based on the absence of corroboration from Witness L and the telephone records, I do not accept her evidence that she carried out surveillance of the Strathfield premises for three days prior to the shooting. Her evidence on this topic made very little sense and was vague and unconvincing.
8. Based on the tone of the telephone intercepts between herself and Farhad Qaumi, I do not accept her evidence that she "hated" Farhad Qaumi, was frightened of him and was compelled to follow his orders because she had been "threatened by him" in the period around and after the Hamzy and Antoun shootings. [128] The telephone calls between them in the period 20 December 2013 and 4 January 2014 suggest the opposite and I do not accept that she was simply putting on an act in the telephone calls.
9. The accused also tendered a telephone intercept of a call between Witness M and Pasquale Barbaro. This call was recorded on 23 January 2014 and the parties sound very friendly. There is discussion of Barbaro giving Witness M "Les's number", apparently in the context of contacting a solicitor to assist somebody to get bail. Witness M advised Barbaro that the "word on the street" is that Barbaro is an informant. Barbaro was amused by this and the call went on (and on) with Barbaro saying that he had maintained the same telephone number. There was discussion of Mohammed Hamzy being in gaol. The balance of the call is largely irrelevant except that it provides some insight into the friendly relationship between Witness M and Barbaro. The accused relies on the closeness of this relationship, the evidence that Witness M had access to guns and the hatred of Barbaro for Joe Antoun to argue that one possibility that has not been ruled out is that Witness M organised the murder on Barbaro's behalf.
10. Witness M's long-term association with gangsters and violent criminals suggests that she was a voluntary participant in the various crimes for which she has been sentenced and in which she belatedly admitted involvement.
11. Witness M's evidence of admissions made by the accused after the murder is completely uncorroborated and I am not prepared to act on it. It is evidence that is easy to fabricate and impossible to disprove. Even though it is not necessary for the Crown to prove these alleged admissions to any relevant standard, I have decided that I must disregard altogether Witness M's evidence of admissions allegedly made by the accused after the event.
12. The fact that Witness M's evidence is rejected on a number of issues, along with her history of lying on oath, is a matter to be taken into account in assessing her evidence in relation to other issues.
13. Another significant matter in assessing her evidence is the fact that her account may have been contaminated by, or deliberately fabricated by reference to, her knowledge of the brief and things she was told in the course of her evidence at the Crime Commission.
14. A discrete and potentially important matter upon which Witness M was interrogated concerned her income and expenditure in late 2013. [129] This cross-examination founded the submission that she was "well and truly living beyond her means". [130] She was asked if her only source of income was a carer's pension of around $1,800 per month. She denied this saying that her parents and friends would give her money. She agreed that she owned a Mazda CX5 but she had given that to her nephew. On the day of the Antoun murder she purchased a second hand Mini-Cooper for $6,000 or $8,000. She was also negotiating a $100,000 car loan. Cross-examined as to the fact that she owned three cars while on a modest income, she said: "Well, I didn't pay for the Holden, that was financed. The Mazda I had bought months before that and the Mini, I borrowed money off someone to buy."
15. As to the mini, she said [a named person] had lent her the money on the condition that "I was keeping it for two months and going to sell it, make money and give him the money back. Which I did." This evidence was not contradicted. Rather, it was put: "Q. It wasn't that you, for example, bought the Mini Cooper S out of your fee for arranging for [Witness L] to murder Joe Antoun, that wouldn't the case? A. A $6,000 car? No. Q. That wouldn't be the case, would it? A. Pardon? Q. That wouldn't be the - A. No. Q. That wouldn't have been the source of your unexplained wealth at that time? A. No. I could get $6,000 right now from anybody."
16. There was nothing to gainsay her assertion that she re-sold the Mini at a profit and repaid the money and no evidence otherwise of unexplained wealth at around the time of the Antoun murder.
17. While I treat Witness M's evidence with extreme circumspection, it remains relevant and potentially important. Where it receives independent support that is not explicable by contamination or collusion, it is evidence that can properly be taken into account. In other instances, the accused rely on inconsistencies between her account and that of other witnesses (in particular Witness L) to cast doubt on the version of events advanced by the prosecution.

Witness L

1. Witness L [131] is the only witness who gives direct evidence that it was the two accused men who engaged or directed him to carry out the killing. He is a witness with manifest credibility issues and it would be dangerous to act on his evidence in the absence of independent support. Witness L gave evidence of his involvement in the Hamzy shooting and in other criminal activities carried out by the BFL Blacktown. He also gave some evidence of the structure and leadership of the group and violence within the group. Critically, he gave evidence of the events leading up to and following the murder of Joseph Antoun.

Evidence in chief

1. Witness L was a member of the Brothers For Life from early 2013 after he was released from prison where he was serving a sentence for robbery. Initially he was a member of the Parramatta Chapter but was present at a meeting when the group was split into three groups - Blacktown (led by Farhad Qami), Bankstown ("the Lebo's chapter", led by Mohammed Hamzy) and the prison chapter (led by Bassam Hamzy, the founder of the organisation). The group was involved in drug dealing, "drug rips" (the extortion of rival drug dealers) and the possession of guns. The leader of the group was Farhad Qaumi. He led the meetings and his orders were expected to be obeyed. Witness L gave evidence of two or three incidents when people were bashed for failing to follow orders. These related to Witness C who was punched and kicked by a group of members on Farhad's order and hit with a dumbbell on another occasion. Witness E (who was not a member) was assaulted for failing to follow the plan during a drug rip.
2. He gave evidence that guns were stored at Farhad Qaumi's brother-in-law's (Alet's) house in Granville and at a warehouse near the clubhouse in Blacktown.
3. On 28-29 October 2013 he attended several meetings in the lead up to the Hamzy shooting. Witness M told the group that "LC" (Little Crazy, a nick name of Mohammed Hamzy) wanted to kill Farhad and had tried to do so. Farhad said they were going to shoot LC that night and decided that Witness L, Jamil Qaumi and another man were to be the shooters. Farhad wanted Witness J to be the driver but Witness M said "Oh, I don't trust [J] … I'm going to be the driver." [132] He said that Farhad handed him a 0.45 calibre semi-automatic weapon and the other two shooters were also given guns. A description of Mohammed Hamzy was provided and the shooters were driven to his house. They entered the garage and several shots were fired at the person they believed to be Mohammed Hamzy and another man (Omar). Then "Jamil went on top of him, put two more in his head". The shooters ran to the car and made their escape. Witness L gave evidence of his movements after the shooting, including his attempt to locate Mumtaz and Farhad at the Coolibah Hotel and their visit to his home later that night. He found out the next day that the wrong person had been shot. It is unnecessary to analyse this evidence in greater detail because the basis of the admission of the evidence of the Hamzy shooting is limited in the manner earlier described. [133]
4. Witness L said that in December, Mumtaz and Farhad came to his home and told him "they got a contract for knocking this bloke." They drove Witness L in an attempt to find the house of the target but they had the address wrong. They then called up Les Elias and went into the city to meet him. After meeting Elias they travelled (back) to Strathfield and the accused pointed out a house. He said that he was told that the Qaumis would receive a contract of $200,000 from "Pasquale and Les". Witness L said the reconnoitre of the house was conducted in Farhad Qaumi's car and he could not recall meeting anybody else that night. Those parts of his evidence are inconsistent with the version provided by Witness M - she said that she was present and the group travelled in her vehicle.
5. In cross-examination, he agreed that he was not told the details of the contract until the day of the shooting. Late in his evidence in chief he said that the Qaumis said they would fix him up later (ie pay him part of the contract money) but that he never received any money.
6. On the day of the shooting, Mumtaz Qaumi came to his house. He went outside and saw Farhad Qaumi who told him "we gonna do Joe today". Witness L claimed to express reluctance because they were under surveillance but Farhad said "No, no, you're just paranoid". Witness L said he didn't want to do it but was told "If you don't do it I am going to shoot you and your daughter. You have to do it." One of the accused gave him a revolver, which had been wrapped in a tea towel. He put the gun in his house and got changed. They then attempted to contact "[Witness C]" but he didn't answer the phone. They went to Kellyville and met Masieh Amiri and "his mate … Assad Harris". Harris was said to be a driver for Witness A or Naziri. [134] At Kellyville Plaza they were trying to organise a car. Eventually, they made contact with Witness C and a meeting took place near the Blacktown club-house. They described the target ("some big cunt with a bald head") and told him to pretend to be from the TNT company and delivering a package. He later said that the Qaumis told him "say you Adam, you from TNT company." [135] Witness C arrived but was not told about the true purpose of the trip. He was directed to "just take him there. He's just got to deliver something to someone." He (Witness C) was told the address and Witness L thought Witness C put the address in his GPS. Mumtaz Qaumi identified a black manual book in the car as being something that could be used as a package.
7. Witness C then drove back to Witness L's home and Witness L got changed and got the gun. They drove to Strathfiled. Witness L went to the front door and said he was Adam from TNT and that he had a package for Joe. The man who opened the front door "was a big guy with a bald head". Witness L pulled out the gun and shot him, firing all of the bullets in the gun. He ran to the car and Witness C drove him back to his house. On the way he disposed of the cartridges that were still in the revolver. He went inside, changed clothes and got some petrol. They drove 100-200 metres from the house, burnt the clothes and Witness L told Witness C to get rid of his phone and the GPS. Witness L hid the gun under a tree.
8. The day after the shooting (17 December) Farhad and Mumtaz returned to his house and he told them what happened. They had already heard about the shooting on the news. They asked him where the gun was and he showed them where it was. They gave him a plastic bag to put the gun in and he put it in the same spot under the tree. They drove him back to his house. He said that he saw the accused again at the Star City casino. They told him they had a room upstairs and that they had Pasquale's car which they were holding as ransom until the contract money was paid.
9. Witness L identified a sketch he drew that showed the location of the burnt clothes and a photograph of the remains of the fire. [136] He also identified surveillance photographs taken on 11 December 2013 and CCTV stills taken at Kellyville Plaza on 16 December 2013. [137]

Cross-examination and credibility issues

1. Witness L's involvement in two shootings and in a number of other serious offences of violence showed him to be a cold-blooded killer with a criminal propensity. His assistance to authorities followed importuning by police after an initial refusal to co-operate. He was offered reduced charges, letters of assistance and more favourable custodial conditions. He received a 60% discount for his plea of guilty and assistance including a 20% reduction for future assistance. This meant that a failure to give evidence against the accused could have resulted in a prosecution appeal with a possible increase in his sentence of something like 10 years. [138] He had a strong motive to give evidence favourable to the prosecution.
2. The evidence of the police tactics in obtaining Witness L's assistance was criticised by Senior Counsel for the accused. In particular, the use of other informants (the brothers Witness G and Witness I) to persuade him to "roll over" was considered to be improper and highly questionable. It would be unfair (for me) to criticise the police involved because the particular officers were not required to give evidence in the trial and there was no cross-examination of Detectives Smith and McAneny to allow the police to answer the criticisms. Further, the investigative method was transparent because the meeting in which witnesses G and I importuned Witness L was covertly recorded and the recording made available to the defence who played the recording, cross-examined Witness L about it and tendered their own agreed translation. [139] While I will not criticise the police, I accept that the recording gave rise to a valid and strong attack on Witness L's credibility.
3. The meeting between Witness L, Witness I and Witness G occurred on 21 August 2014 and led to Witness L providing the first of his statements in which he implicated the accused in the Antoun murder and other crimes. Before the meeting, police told the brothers to encourage Witness L to provide a version of events implicating the accused. They were told, amongst other things: "we believe that he was forced into doing some of these things, that he was encouraged to do it and he did it for someone else … it's quite obvious from the evidence that we have that … [Witness L] wasn't the leader of the gang … he wasn't the person calling the shots"
4. Witnesses I and G took up this task with considerable enthusiasm. They extolled the virtues of the custodial conditions and privileges they enjoyed as informants - things such as the food ("BBQ, three steaks this big, four sausages, lots of drumsticks, three ice creams") and electronic equipment (TVs, computers, telephones), that was available. There was discussion about the extent of the benefits that would flow in terms of sentence, even to the point of correctly predicting the extent of the discount he would receive from his sentence (60%). They told Witness L that the police were not really interested in him but wanted evidence against the [Qaumi] brothers. They encouraged him to say that he was forced and compelled to act as he did. In particular, at one stage they said (to paraphrase from the somewhat oblique translation) Witness L should tell the police that Farhad was a murderer and that he threatened to harm (or kill) Witness L's daughter. [140] There was repeated refrain to "fuck Farhad". At one stage Witness G advised Witness L to "lie to them … act like crazy". [141] The police provided the three criminals with chicken and chips which were apparently delicious. Witness L asked "are we in prison?" [142]
5. This "three way" conversation creates significant issues in the assessment of Witness L's credibility. It demonstrates with clarity the extent to which his assistance was motivated by self-interest. More importantly, it shows that he was told that the police wanted him to implicate Farhad Qaumi and his brothers. His evidence of being forced to commit the crime, and specifically the threat he alleges was directed to his daughter, is undermined to a significant degree by the fact that this was one of the specific things that Witnesses I and G told him to say.
6. Another matter undermining Witness L's credibility is the fact that he deliberately misled police in relation to the person he says was the third shooter in the Hamzy shooting. When he first became an informant he promised to tell the police the truth. While he was not on oath, the circumstances were such that there was a heavy responsibility on Witness L to be honest - he was seeking to obtain a significant reward, he was providing information about a homicide case and he had undertaken to provide the police with all the information that he had. He nominated Witness J as the third shooter. He knew this to be false. He also knew that the third shooter was a larger man than Witness J and gave information that would explain the difference in size; he said that Witness J was wearing a bulky jacket. These were calculated and cunning lies told in circumstances of some solemnity. It was only much later, when police investigators told him they believed he was lying, that he relented and nominated a different person as the third shooter.
7. Witness L lied when he asserted that he did not intend to kill Joseph Antoun. He fired the gun at least five times from a short distance, striking his victim in the upper body on four occasions. It is impossible to accept that these acts were not done with an intention to kill. The fact that his evidence is rejected on this important issue is a matter to be taken into account when assessing his credibility generally, and in respect of other specific issues.
8. These matters undermine the evidence that Witness L gave against the accused. It is evidence that may be unreliable. A jury would be warned in the strongest possible terms and I take that warning into account in assessing his evidence. Before acting on Witness L's evidence I must scrutinise it with great care and look for corroboration or support from other sources. It would be dangerous to convict the accused on his evidence alone.

Witness C

1. Witness C [143] pleaded guilty and was sentenced as an accessory after the fact to the murder of Joseph Antoun. He drove Witness L to the scene but did not know the purpose of the journey until he heard five shots fired while waiting in the car for Witness L. He joined the BFL Blacktown in 2013 and introduced some friends to Farhad Qaumi who was the leader of the group. He said the group was involved in drug dealing and drug rips and had a number of firearms. He was personally involved in drug supply and also drove a member called Kalal to "the Zakaria house" where a shooting was carried out by Kalal in which a young girl was shot. Witness C gave evidence of an occasion when Farhad hit him with a dumbbell because he didn't take Farhad's 'phone calls. He received a cut on the head, which was treated by applying ash to the injury. He said that Farhad told the group that "'no-one leaves without a bang', yeah without getting bashed or shot basically."
2. On the day of the Antoun killing, he missed several calls from Mumtaz Qaumi but was then called to a meeting at Kellyville. He was told "it's important, need to see you." The location of the meeting was changed to Bessemer Street, Blacktown and there he met Farhad, Mumtaz and Witness L. Mumtaz and Farhad said "can you take [Witness L] to Strathfield? Can you drop him off home and then take him to Stratfield?" He was given an address in Jersey Road Strathfield and Mumtaz told him to put the address into [the Maps App. of] his telephone. He was told that Witness L had to drop something off at Strathfield. He drove Witness L home, where Witness L changed clothes, and then drove him to Strathfield. They drove up and down Jersey Road a couple of times while Witness L tried to find the house. Witness L took the log book from his car and a short time later Witness C heard five gunshots. Witness L came back to the car and was a "bit panicked and out of breath". Witness C drove Witness L home and Witness L "chucked the empty shells". That was the first time that Witness C saw the gun. Witness L got changed again and they burnt the clothes he was wearing. Witness C provided sketches of the area of the shooting and the area where the clothes were burnt. [144] The last time he saw the gun it was with Witness L.
3. Witness C identified his voice and that of Mumtaz in the recording of some telephone calls intercepted by police on 16 December 2013.
4. Witness C was cross-examined by Mr Stratton about his involvement in supplying drugs. He admitted that he supplied drugs on behalf of the BFL. A "Cellbrite" telephone report was shown to him and he agreed that the record suggested he was still supplying drugs for the group in late December 2013. It was suggested that the meeting at Blacktown on 16 December 2013 was for the purpose of Witness C handing over $2,000 in cash to Farhad Qaumi. He said that he could not remember handing $2,000 to Farhad on 16 December 2013 at Bessemer Street Blacktown but he did not rule out that possibility. It was put to him that he was only asked to drive Witness L home to Orchard Hills because that was the same direction as his home in Windsor. He said that was "wrong". He agreed that he told police that he was asked to take Witness L to Strathfield and then home, rather than to Strathfield via Witness L's home. He agreed that when Witness L got back into the car, he said "he's done" and "he's dead" and Witness C knew that he was talking about somebody at the house in Jersey Road. There was careful cross-examination about the burning of the clothes, who set the fire and the sequence of events. He agreed that after dropping Witness L home he had a flat tyre and made a number of calls to a girl. It was put to Witness C that neither of the accused asked him to drive Witness L to Strathfield and he said that proposition was wrong. He agreed that he was at Silverwater Gaol in 2014 at the same time as Witness L.
5. Mr Young SC reminded Witness C of answers he gave to the police and he agreed that the accused may not have given him the number in Jersey Road. He said he might have put the address into a "GPS or Satnav" in the vehicle but he could not remember. He could not remember disposing of the Satnav or GPS. He was again pressed on the suggestion that the accused did not tell him to drive Witness L to Strathfield and he maintained his position - "I say you're wrong."
6. Witness C was criminally concerned in the events giving rise to the charges against the accused and has a motive to give evidence implicating them. He received a 55% discount for his assistance, including 15% for future assistance. [145] He was also criminally involved in other activities of the BFL Blacktown. There were some inconsistencies between what he told the police and the evidence he gave in the trial as well as some conflict with the evidence of Witness L. There was an opportunity for him to collude with Witness L when they were in the same gaol during 2014. His evidence may be unreliable and must be scrutinised with great care. It would be dangerous to act on it in the absence of independent support. However, he made his statement to police relatively soon (about two months) after the events and his evidence receives some support from the telephone intercepts and surveillance evidence. His credibility was not greatly damaged in cross-examination.

Witness K

1. Witness K [146] is the brother of Witness J and [redacted] of both of the accused men. He pleaded guilty to possession of an unauthorised firearm and participation in a criminal group. He received a reduction in his sentence of 40% for his assistance including 10% for future assistance (that is, his promise to give evidence against the accused).
2. Witness K gave evidence that on 3 January 2014 he received a call from Farhad Qaumi who asked him to pick him up from Thornleigh McDonalds. He did so and then they travelled back to the "Granville, Auburn" area (where the witness lived). He dropped Farhad somewhere in the area and then went home. Later that night he received another call from Farhad who said "come outside". Farhad was there with two others and told him to "get your van and follow me". The van was Witness K's work van. He worked as a telecommunications sub-contractor. Farhad was in the passenger seat of a four-wheel drive driven by somebody that the witness did not know.
3. He followed the four-wheel drive west on the M4 motor way until they exited left, took another left, went down a dark street and turned right onto a gravelly road. He stopped behind the four-wheel drive and Farhad Qaumi went looking for something in the bushes. It was dark and the lights in the other car were left on. It appeared that Farhad was looking for "a marker … a tree or something maybe." By the time Witness K went and got a torch from his van, Farhad found what he was looking for. He had a package and asked Witness K to put it in the van. All he saw was layers of plastic bags but from its feel he assumed there was a firearm in the package. Witness K put the package into one of the boxes in the back of his van and Farhad told him to drive back to the area - that is, close to where Witness K lived in Auburn (which the witness agreed was near Granville) - and then to call him.
4. Witness K set off east on the M4 and was pulled over by police who searched and found the package that contained the firearm. This was the firearm later identified (by ballistic examination) as the murder weapon. The witness identified himself and one of the other men in a surveillance photograph [147] and identified his voice on a telephone call recorded at 22:38pm on 3 January 2014. [148] The person who said it was his "brother in law" was not Mumtaz Qaumi (as erroneously stated in the transcript). Witness K said he made that call shortly after being arrested.
5. In cross-examination, Witness K was asked if he told Farhad on 3 January that he wanted a gun. He said that he didn't and, when pressed, said that he was sure. He was asked whether he knew Farhad Qaumi had been shot on New Year's Day and whether that was why he wanted a gun. He said he knew Farhad was shot and had visited him in the hospital but denied that is "why [he] wanted a gun." He denied going under the house at Witness L's home and retrieving the gun. However, he agreed that when he was arrested he gave a false account of where he had come from. He told the police that he had just been paying an employee his wages, a person whose surname he could not nominate. He agreed that he denied all knowledge of the gun. He also agreed that when they left the area where Farhad retrieved the package, the two cars did not travel in convoy.
6. Witness K is another witness whose evidence must be treated with considerable caution. He was criminally involved in the disposal of the murder weapon and has an interest in minimising his own role and blaming others for his involvement. If he failed to give evidence against the accused, he ran the risk that his sentence would be increased on a Crown appeal. He also lied to the police on arrest. In assessing his evidence, I take into account the strong warning that a jury would receive as to the dangers of acting on his evidence. On the whole I found Witness K's evidence to be believable but I remain cautious before acting on it.

Witness A

1. Witness A [149] joined the BFL Blacktown in July 2013. Farhad Qaumi was the leader and his brother Mumtaz was second-in-charge. The group was involved in drug dealing and extortion to make money. These things were discussed at meetings and Farhad led the discussions. Farhad said it was "a brotherhood", not a "bikie gang". Members paid $50 each week and were encouraged to find new members. Farhad Qaumi had said that a former member (Mustafa Shanasa) had "gone out with a bang" but he was later seen in Kings Cross. Witness A gave evidence of another member being slapped or punched but the details were patchy. He also said a friend he brought to the club was slapped around. He saw another member being threatened with a gun and Farhad asked whether he wanted his right or left leg [shot]. Witness J and Witness I went and got a gun but the member was not shot. He said that members that did not obey directions would face "consequences" including violence.
2. He was aware of a number of shootings that took place in October and November 2013 and decided he wanted to have nothing more to do with the group. He was asked by Jamil Qaumi to hide a bag which had two guns and drugs inside and Witness A dumped the bag in some bushland. A week or so later he went overseas. When he returned to Australia he went to the police and showed them the location of the bag. He was not charged with any crime and received an undertaking from the Attorney General that his evidence would not be used against him. He said that he believed that the only way out of the group was to go to the police because his life was in danger. He said that the guns he was given were kept at Witness L's place. Otherwise the guns were kept at the clubhouse and various other places. The guns were used in drug rips.
3. Witness A did not agree with many of the proposition put to him in cross-examination about the general structure and activities of the group. He agreed that a number of members of the BFL Blacktown were trying to get in touch with him. In particular, he was aware that Masieh Amiri was trying to contact him and asked where the stuff had gone. He said he had never heard the name "Safi Samadi" in his life.
4. Witness A was a knowing participant in a gang involved in serious criminal activity. He was involved in hiding guns and drugs. He was not charged for his involvement in these crimes. Like the other informant witnesses, he had a motive to give evidence favourable to the prosecution and calculated to minimise his own conduct and shift the blame to the accused. His evidence must be treated with caution and examined carefully before it is acted upon. His demeanour was taciturn and it was difficult to assess whether he was attempting to answer the questions put to him in the very brief cross-examination. However, on the whole, he appeared to be responding to the questions as best as he could.

Witness E

1. Witness E [150] was not a member of the Brothers for Life and was not criminally concerned in the events giving rise to the charges. However, he was sentenced for drug, firearms and other offences and received a 50% reduction in his sentence partially as a result of his assistance and offer to give evidence against the accused. Like the other informant witness, his evidence must be treated with caution.
2. Witness E came into contact with the BFL Blacktown as a result of problems he was having obtaining money from a man called Muscat. It seems that he sought the assistance of the group. He went to the clubhouse on 14 October 2013 and then went with members of the group to obtain a gun from a house "somewhere near Merrylands". At Farhad Qaumi's suggestion, a group went to Muscat's house to threaten him in order to obtain money. When that plan failed, Witness E was threatened and assaulted by members of the group including the two accused. A gun was produced and Farhad pointed it at Witness E's leg. He was told he had to obtain a car from his parents and give it to Farhad. As it turned out the car was not handed over to Farhad.
3. Witness E was cross-examined about his criminal convictions including an arson offence and his possession of guns including a double barrel shotgun. As to the assault at the BFL Clubhouse, he agreed that Witness I punched him in the face and repeated his allegation that Farhad pointed a gun at him, saying "Which knee do you want it in?" Before that happened Farhad asked whether Witness I had any bullets and he said he didn't. It was put to Witness E that he knew that the gun was not loaded because he had seen Witness L discharge the weapon at Muscat's house. Witness E denied this. It was also put that the incident did not occur but Witness E maintained that it did. He agreed that he saw blood at Muscat's premises and heard gun shots. He thought the blood may have come from a dog but did not see Witness L shoot the dog. Witness L admitted that he shot a dog during this incident. [151]
4. Witness E acknowledged an inconsistency in his statement to the police in which he said "I was never invited to the clubhouse." He agreed that he had a gambling debt of $15,000 to the Rebels outlaw motor cycle club. That debt had compounded from $30,000 to $40,000 as a result of the interest being charged by the Rebels. It was in that context that he sought the assistance of the BFL Blacktown. Through a friend Nasser, he met Witness L and spent time with him over the next few weeks. He denied that Witness L provided him with a gun.

The limited purpose for which this, and similar, evidence was admitted

1. The evidence led from Witness E was admitted for a limited purpose. The same applied to other evidence led through the informant witnesses concerning criminal activity, violence and threats that are not related to the Antoun murder. This body of evidence was admitted (without objection) to place the events around the Antoun shooting in context by establishing the nature of the BFL Blacktown and the methods by which the leadership (relevantly, the two accused) ruled the group. It is suggested by the prosecution that they resorted to violence and intimidation to ensure that the members followed their orders.
2. This body of evidence is said to explain Witness L's obedience to orders and susceptibility to the alleged threats made to him when he showed reluctance to carry out the murder. It is also said to explain the actions of Witness C and Witness K and the reluctance of witnesses to come forward and to give evidence. Given the other evidence as to Witness L's capacity for gun violence and his willingness to engage in the same, I do not place very much weight on this body of evidence. I accept that the gang was violent and that the leadership enforced their will by means of threats and intimidation, but I do not find that fact helpful in determining the true issues in the trial.

The Cases of the Parties and Addresses of Counsel

1. I had the benefit of three helpful addresses from senior advocates who put the respective cases clearly and persuasively. I have considered the submissions of counsel carefully and given them the weight I believe they deserve. I do not propose to repeat the substance of the submissions or attempt to summarise the addresses but I was, and remain, grateful for the assistance I received from counsel.

The Crown Prosecutor's address

1. The Crown submitted that the evidence established the guilt of the accused beyond reasonable doubt. He acknowledged the manifest credibility issues of many of the principal prosecution witnesses but submitted that there was sufficient supporting evidence to accept the core parts of their evidence. He placed particular reliance on the events of 11 December and 16 December 2013, the evidence that supported the accounts given by Witness M and Witness L as to the events of those days, and the evidence of contact between the accused on the one hand and Witness M, Witness L and Les Elias at relevant and important times. He described the Kebab shop transaction as a sham. He noted the connections between the accused and various participants in the murder and submitted that the events did not occur in a vacuum but in the context of those relations between the parties.

Defence Counsel's addresses

1. The accused submitted that the Crown case failed because of the lack of credibility in the prosecution's key witnesses and the availability of alternative, reasonable inferences arising from the circumstantial case. It was submitted that to convict, it was necessary to accept Witness L's evidence beyond reasonable doubt. The evidence of Witness M and Witness L was deconstructed with care and vigour. The inconsistencies, deficiencies and deceitfulness of their conduct and evidence were highlighted to lead to the submission that the evidence could not safely be acted upon. Emphasis was placed on the number of people with motive to kill or harm Joseph Antoun and particular reliance was placed on the connection between Pasquale Barbaro and Witness M. There is clear evidence that Barbaro hated Antoun and that Witness M had access to guns through her brother-in-law. Witness M was aware that Witness L was a "killer" through her involvement in the Hamzy shooting. Accordingly, the possibility that Witness L was engaged by Witness M on behalf of Barbaro was a real one and could not be excluded. Far from being a sham, the transaction involving the sale of the kebab shop by Mumtaz Qaumi to Les Elias demonstrated an innocent association between the accused and Elias. The elaborate and ongoing nature of the transaction indicated that it was genuine and it was extremely unlikely that the consideration for a contract to commit murder would be satisfied by way of a bank transfer. It was emphasised that the BFL Blacktown, and the accused themselves, were involved in a variety of activities and it was not correct to assume that all of them were related. Accordingly, it was wrong to infer that the meetings with Witness L and Elias on the days around the murder of Joseph Antoun were necessarily connected with each other or with Witness L's act of murder.

Relationships, Connexions, Motivations

1. To understand the events surrounding the murder of Joseph Antoun, and to come to any certain conclusions as to who was responsible, it is important to understand and to consider the relationships and connections between the people involved. This includes relationships between the witnesses; between those who may have been involved but who did not give evidence; between the accused and those who were involved; and between those who were involved and those who failed to testify.
2. A consideration of these relationships must commence with Joseph Antoun. The precise nature of Mr Antoun's business was elusive and the evidence appeared to be riddled with euphemism. He was involved in "construction", "scaffolding" and went to meetings where the participants discussed "business". Various questions were put that suggested he was a stand-over man and his wife confirmed that he had spent time in gaol and had been charged with extortion. Whatever the precise nature of the business, it emerged clearly that that he had a number of enemies and people with a motive to do him harm. These included people with reputations that suggested that they may be dangerous or may have contacts capable of organizing or carrying out an assassination.

Business partners and rivals

1. Jim Byrnes had a number of conflicts with Joe Antoun and blamed him for shooting at his house, damaging his property and assaulting his employees. So toxic was their relationship that he knew that he would come under suspicion and contacted police himself to deny involvement. From the (hearsay) statements of other witnesses, Byrnes mixed in the same circles as a number of the other men who were in conflict with Joseph Antoun.
2. The evidence suggests that Jim Byrnes was one of a number of business associates and rivals with animosity towards Joseph Antoun. This included accountant Angelo Russo, Kevin McHugh, Doug Westerway, Michael Cohen and others. In a letter to the DPP, Nemer Antoun accused some of these people of stealing several million dollars from Joseph Antoun and believed they may have been behind the murder because Joe "would not have allowed them to get away with stealing our family assets." In that letter, he said that the group would meet in Les's office and in evidence he said that "the connection" was "with Jim Byrnes and Les Elias". Doug Westerway told police that Joseph Antoun assaulted him two months before the murder and inflicted serious injury upon him.
3. Joseph Antoun also had a conflict with "Big Willy" Tofilou with whom he had a punch up a short time before the murder. Police had information that Big Willy was a "debt enforcer" and that Mr Antoun was blocking his attempt to obtain money for a holiday.
4. Joseph Antoun had a number of business partners or associates including George Alex and Jimmy Kendrovski. There was evidence of a meeting at George Alex's place on the night of the murder. Adam (Abs) Sultani told police he was at the meeting but the other participants (George Alex, Mazen Hourani and Ned Cavric) did not nominate Abs as being present. Abs was the person who drove Mr Antoun home and was the last person, outside of Joe Antoun's immediate family, who saw him before he was shot. While this information was cross-examined into evidence more than once, and referred to in the addresses, it is unclear what I am to make of it. While there was evidence that Abs met Witness L in gaol some time earlier and had run into him at a boxing match or UFC event, there is no rational basis upon which I could conclude on the evidence that Abs was involved in the murder. Similarly, there is no cogent evidence supporting the possibility that Mr Antoun's business partners were directly responsible for the murder. Nemer Antoun said that "people that were supposed to be our partners … were meeting with Les Elias and others." [152] His letter to the DPP expressed the opinion that "Joe's business partners … paid to have him murdered". Les Elias nominated Jay Kilicoglu and Abs Sultani as the "most likely suspects" because "Joe was stopping them getting a bigger slice of the business." [153] However, even giving effect to these opinions, there is no cogent evidence of a link between the business partners and those involved in the murder. If there was any connexion, it was (on Nemer Antoun's account) through Les Elias.
5. Nemer Antoun also gave evidence that Joseph Antoun had punched Doug Westerway over an insult to his wife and there was a suggestion that Westerway was paying "kickbacks" to the CFMEU but these things do not suggest strongly that Westerway had a motive to commit murder.
6. While these business connections, rivalries and physical altercations give rise to a large number of people who may have had a motive to harm Joseph Antoun, or even to arrange for his murder, there is little, if any, evidence of connections between those people and the three (or four) people who were unquestionably linked to the crime or the murder weapon - that is, Witness L, Witness C, Witness K and (if you accept what she now says) Witness M. The only exceptions to that proposition are (i) Abs Sultani's tenuous connection to Witness L and (ii) Les Elias, whose connection is indirect and through Barbaro and/or the accused (to Witness M) or through the accused (to Witness L, Witness C and Witness K).

Pasquale Barbaro

1. Joseph Antoun owed Pasquale Barbaro a large sum of money. There was graphic evidence of Barbaro's jealousy and hatred of Antoun in a telephone call between Barbaro and Wesam Hamze [sic] intercepted on 22 June 2013. [154] There is evidence suggesting that Barbaro not only had a motive, but had already tried or planned, to kill or harm Antoun. I accept that Barbaro had a motive to kill Joseph Antoun.

Pasquale Barbaro, Les Elias, Witness M and the Accused

1. Barbaro had known Witness M for a long time. Precisely how long is not clear but their relationship certainly pre-dated any relationship between Barbaro and the accused. Witness M had a brother-in-law who supplied guns. Witness M knew Witness L through the accused and knew his capacity to shoot and kill through their joint commission of the Hamzy shooting.
2. Pasquale Barbaro appeared to be closely associated with Les Elias although the evidence of the precise nature of the business and personal relationship was opaque. There is evidence of Barbaro, Les Elias and the two accused men socialising on a couple of occasions in the first week of 2014. There are CCTV stills from the Star City Casino and evidence of Barbaro inviting Farhad Qaumi to be the guest of honour on a cruiser called the Oscar II. Farhad Qaumi was shot while on the boat.
3. Les Elias had a long standing dispute with Joseph Antoun. It involved a debt owed by Elias to Antoun going back around six years before the murder. However, Ms Mullens said the situation never went away and there was evidence of competition between the two men more recently. [155] When spoken to by the police in the Philippines, Elias gave an account of Antoun and George Alex gazumping him in his attempt to purchase a scaffolding company. [156]
4. Les Elias was associated with both of the accused. There is evidence that in September 2013 Elias assisted Farhad Qaumi in resolving an issue that arose when the Crime Commission seized $100,000 from Farhad Qaumi. The details of that transaction are unclear. The "receipt" that was tendered in evidence [157] was as dodgy a document as one is ever likely to see. It purported to evidence a gift of $100,000 for "family restition" [sic]. The only other evidence of the transaction was what Elias said to the police when interviewed in the Philippines. He said that he provided Farhad with a bank cheque and Farhad gave him $100,000 cash. It is not clear how that might have worked if the money had already been seized by the Crime Commission. The Crown did not suggest that this transaction has any relevance to the contract to kill Joe Antoun. Elias and the accused were in contact at around the time of the murder and met at the Shark Bar on 11 December 2013. That meeting was sandwiched between meetings between the accused, Witness L and Witness M at Lidcombe and Five Dock respectively. There is evidence that Elias purchased Mumtaz Qaumi's Kebab Shop in December 2013 and that the accused had designs on entering into other business transactions with Elias. Some of the evidence suggests that the Qaumi's were "stamping" Elias for money. This evidence came from the conversations police had with Elias and Barbaro.

Witness L, Witness C, Witness K and the BFL Blacktown

1. Witness L, who shot Joseph Antoun, was a member of the BFL Blacktown and associated with both of the accused who were the leaders of that group. He carried out the Hamzy shooting on their behalf seven weeks earlier. Witness L also knew Witness M through their joint commission of the Hamzy murder although there is little evidence of contact between Witness L and Witness M between the two shootings. There is no evidence of contact between Witness L and Barbaro. The only contact Witness L had with Elias was through the accused. Witness L knew "Abs" Sultani (the man who dropped Joe Antoun home on the night of his murder) but the evidence of their contact was intermittent and I think irrelevant.
2. Witness C, who drove Witness L to and from the murder scene, knew the accused through his membership of the BFL Blacktown. There is evidence of telephone and direct contact between Witness C and the accused shortly before the murder. Witness C also knew Witness L through the BFL and probably had some knowledge of Witness M although there is little, if any, evidence of a connection between Witness M and Witness C. There is no evidence suggesting that Witness C knew Elias, Barbaro or Joseph Antoun.
3. Witness K, who was arrested with the murder weapon, was a [redacted] of the accused and a member of the BFL Blacktown. He knew Witness L, Witness C and other informant witnesses through his membership of the BFL Blacktown. Witness J was Witness K's brother and a [redacted] of the two accused. He was also a member of the BFL Blacktown and knew the other informant witnesses through his membership of that organisation. There is no evidence of any connection between Witness K and Elias, Barbaro or Joseph Antoun.
4. Witness E, who knew Witness L through another BFL member, approached the BFL Blacktown to help him with some troubles. It appears that he was otherwise not known to the accused, the witnesses or the other people mentioned in evidence.
5. Witness A knew the accused and the other informants through his membership of the BFL Blacktown.

The relevance of the evidence of motive

1. The fact that there are established motives in other people creates issues of proof for the prosecution in the light of the requirement to establish the guilt of the accused beyond reasonable doubt. The Crown must eliminate the possibility that somebody other than the accused committed the murder or contracted Witness L to execute Joseph Antoun.
2. The matter is complicated because the accused, through their examination of the police investigators, have established Pasquale Barbaro as a prime suspect. Barbaro was well known to Witness M (who had access to guns) and Witness M and Witness L carried out the Hamzy shooting together. While the accused rely on the (hearsay) denial made by Les Elias, little was said of the fact that Barbaro, too, staunchly denied involvement when approached by the by police.
3. The complication arises because of the relationship between Elias and Barbaro. There was an implicit criticism of the Crown whose case was said to have "morphed into a, as it were, suggestion that there was a joint contract between Elias and Barbaro to contract the Qaumis to arrange a killing." [158] There is no requirement that the Crown establish that Elias acted on his own or to identify who stood with, or behind, him. I can see no unfairness in the Crown putting the proposition that Elias may not have acted alone. The evidence of Barbaro's involvement with Elias (and the accused) was elicited through the evidence of Witness L and through surveillance and CCTV footage.
4. On the other hand, if there is a reasonable doubt that Elias contracted the Qaumis, it would not be open in fairness - or as a matter of logic - to conclude that the accused were contracted by somebody else (for example, Barbaro). However, it is not necessary for the prosecution to establish who, if anybody, stood with Elias, or behind him, in arranging the murder.

The Sale of Mumtaz Qaumi's Kebab Shop

1. The evidence shows that Mumtaz Qaumi registered the business name "Erina Kebab House" on 30 August 2013 and applied for that business name on 28 August 2013. [159] The evidence is silent as to when Mumtaz Qaumi acquired the business and how much he paid for it.
2. The business was advertised for sale through "Gumtree" three times in the latter part of 2013 although the document evidencing this was not completely satisfactory. [160] The document suggests that the advertisements were placed on 23 August 2013, 28 September 2013 and 30 November 2013. On each of those dates the vendor's email address was recorded as "taz1871@live.com.au". On each occasion the asking price was $25,000. [161] On the final occasion there is a note that the price was reduced for a quick sale (even though the same price was sought on each occasion).
3. In an intercepted 'phone call on 4 December 2013 Les Elias spoke to Mumtaz Qaumi about paying a deposit for "the shop". The accused accepts that this is a reference to the kebab shop. The purchase price was discussed and Elias said: "a hundred and ninety - a hundred and ninety grand the shop - alright? Twenty grand deposit or alright."
4. There was a discussion about whether the deposit would be paid in cash or in a bank transfer. Mumtaz agreed to the purchase price and deposit and asked if Elias can sign the paperwork next week and finalise the deal. On 5 December 2013 Elias told Mumtaz Qaumi "I done it, that's out of the way" and "now you can't sell it - that shops mine". He then laughed.
5. Les Elias told police he "believed he paid approximately $100,000" for the Kebab Shop. [162] Witness M gave evidence that "Les was going to give them $150,000 for the kebab shop, even though it wasn't worth that much". She said the sale was to cover or legitimise the payment for the contract to kill Joseph Antoun. [163] Witness L asserted that the accused told him that they "took a contract for 200 grand". [164]
6. On 14 December 2013 Mumtaz Qaumi had a conversation with a third party (Fred) who made an inquiry about the shop. [165] On 18 December 2013 Mumtaz Qaumi sent a text message to Fred and asked if they were "still interested in the kebab shop". [166]
7. On 19-20 December 2013 Elias made a bank transfer of $80,000 to Mumtaz Qaumi. [167]
8. On 20 December 2013 Elias discussed the possibility of a Turkish guy taking over the shop and franchising it.
9. Between 25 December 2013 and 7 January 2014 there were a series of telephone calls and text messages involving Elias, the lessor or realtor, and a person (Christian) who was lined up to manage the shop for Elias. [168] This included Christian driving to the central coast to inspect the premises.
10. The Crown puts that this transaction was a sham and relies on the variation in sale price and the timing of payments to connect the transaction to the Antoun murder. Reliance is placed on the evidence of Witness M. The accused submit that the sale was legitimate and that it was an intricate and ongoing transaction. They rely on the fact that Witness M was examined at the Crime Commission about the transaction and may have moulded her evidence accordingly. It was also put that it is most unusual for a contract for murder to be paid by way of a bank transfer.

The "Wall of Silence": All of the Hearsay

1. A good deal of the evidence establishing motives to kill Joseph Antoun and connections between the many characters referred to in the evidence is hearsay evidence. A number of people said to have a motive, or information about the killing, refused to make statements and were not called to give evidence. I accept the submission put by Senior Counsel for Farhad Qaumi that this "wall of silence" creates difficulties for the Crown in establishing the offence against the accused.
2. I have taken the hearsay evidence of motives in other people into account in assessing whether or not the case is established beyond reasonable doubt. I have taken into account the interviews with Les Elias in which he explained the kebab shop and other transactions and his dealings with the Qaumis. I have used those interviews as a possible explanation of those transactions and considered them in the context of the other evidence relating to the sale of the kebab shop and the relationship between the parties.
3. However, I have treated the (hearsay) denials of involvement with a large degree of scepticism. Such evidence came from a variety of players, including Barbaro, Elias, Byrnes and others. Equally, I have given little weight to evidence of people's beliefs or opinions as to who may, or may not, have been involved. It is not possible to make any reasoned or rational assessment of such assertions and denials. Such statements are self-serving. If the person being interviewed was a guilty party to a conspiracy to kill Joseph Antoun, they are hardly likely to tell the police that, and they are likely to volunteer the names of others who may have been involved (unless those others are connected with the person themselves).

The Elias Interviews

1. The most substantial hearsay evidence adduced in the trial is the Investigator's Notes made by police who travelled to the Philippines to interview Les Elias. Those notes were tendered by the accused. The interviews upon which the notes were based took place on 3 and 4 April 2014. At that stage the investigation was in its early stages and Elias was not yet a suspect. [169] The notes cover a wide variety of subjects and contain assertions that are clearly inadmissible to prove the truth of what was being asserted. This was conceded in argument. For example, the notes contain a raft of opinions as to the character and qualities of various people - Joe Antoun is described as "a greedy bastard" while Farhad Qaumi is described as "the craziest person [Elias] has ever dealt with during his colourful life".
2. Elias provided information about relationships between various people including some of the witnesses, the accused and other people mentioned in the evidence. He provided information about a number of the incidents that have been cross-examined into evidence to establish a motive in others. For example, he said that "Jim Byrnes told him in the past that [Sultani] was the one responsible for the shooting at Jim Byrnes house and not Antoun like many believe." [170] This is contrary to the other evidence elicited in cross-examination of Nemer Antoun and Detective McAneny that Byrnes believed Antoun was responsible for that shooting. [171] This kind of inconsistency, and there are many, highlight the caution with which I must approach this evidence.
3. A further example of information provided by Elias that is inconsistent with the case being run on behalf of the accused was that "Pasquale Barbaro was also a close associate of the Qaumi brothers." He went on to say that they most likely met through Witness M. However, the evidence in the trial, as elicited in cross-examination, is that Barbaro had only recently met the Qaumi brothers. [172]
4. He also said that Farhad "asked him straight out if he organised it", that is the murder of Joseph Antoun. The notes continued that Elias denied involvement and "Les thinks it's more likely the Bankstown BFL Crew." [173] The conversation as recorded is obviously inconsistent with Elias and the accused being responsible for the murder, but the suggestion that Farhad asked Elias if he was involved suggests that Elias did have a current motive to do harm to the deceased, a proposition contrary to the defence case that the dispute was six years old and the wronged party was Antoun, not Elias. [174]
5. Elias gave his opinions on who might have been responsible for the murder of Joseph Antoun. He believed it was unlikely to be Pasquale Barbaro "because then he would never get his money back." [175] That opinion (to which I give no weight) is contrary to one of the more prominent defence theories, or alternative hypotheses, namely, that Barbaro was at the heart of the conspiracy to murder Joseph Antoun. The "theory" posited by Elias was that Jay Kilicoglu and Abuzar Sultani were the "most likely suspects" because, to paraphrase, they wanted to move in on the position that Mr Antoun held in George Alex's enterprise. All of this is very interesting but it is difficult to see how, acting rationally, it would be appropriate to act upon the ponderings of Les Elias in a criminal trial.
6. Elias also provided information about his dealings with the accused and it is this information upon which the accused seek to rely. There is reference to the purchase of a truck for $20,000 from Mumtaz Qaumi. "Checks on RTA" confirmed that transaction as taking place on 23 September 2013. [176] Elias also referred to an arrangement whereby Farhad Qaumi was to be put "on the books" and would be paid a wage to assist him in obtaining a loan. He told police he believed the Qaumis were stamping him for money and that the situation was a "fucking nightmare". The note records that he "believes he paid approximately $100,000 for Mumtaz Qaumi's Kebab shop", that he tried to get Christian Karawana to take it over but the deal fell apart and he eventually decided to cut his losses. [177] There is no reference to the deal - recorded in the telephone intercepts - whereby Elias agreed to buy the kebab shop for $190,000 with a $20,000 deposit. I have taken the unsworn, untested statements made by Elias on these issues into account as a possible version of events and explanation of the dealings between the men.
7. The investigating police asked Elias to comment on the proposition that after meeting(s) [178] with Elias the Qaumis travelled and met people linked to the Strike Force that was investigating the Antoun murder ("[Witness L], [Witness M] etc"). Elias "could not explain this" although he posited that the Qaumis seemed "to organise a number of meetings about a series of issues whenever they travelled to Sydney from their Central Coast home". [179] Elias described the suggestion that CCTV footage and telephone intercepts might give rise to the perception of a friendship between he and the Qaumis as "bullshit". [180]
8. The foregoing is merely a sample of the information provided to police by Elias. As I have said, I give very little weight to the hearsay denials made by various people to police. That observation applies equally to this evidence as it does to the denials made by Jim Byrnes, Pasquale Barbaro and others. However, I have taken into account the first hand hearsay providing an explanation for the dealings between Elias and the accused, although in doing so I must exercise a degree of caution and take into account the deficiencies in the evidence (such as the failure to refer to the agreement to pay $190,000 for the kebab shop).

11 December 2013

1. The events that occurred five days before the murder of Joseph Antoun are important and the inferences that might be drawn from them subject to significant debate between the parties.
2. I have set out in summary form some of the evidence given by Witness M and Witness L concerning the attempt to identify the house of Joseph Antoun and the (alleged) subsequent drive past that house. Witness M was able to nominate 11 December 2013 as the date upon which this occurred based on the fact that she rented a vehicle the following day. Witness L was unable to nominate the date and could not remember whether Witness M was even present. The evidence of surveillance and telephone intercepts satisfies me that the meetings of which the two witnesses spoke occurred on 11 December 2013 and that Witness M was present. In the absence of direct corroboration, the dispute as to whether the group drove to Strathfield - and, if so, once or twice - remains a lively and important one.
3. What is clear is that Witness M, Witness L and the two accused men were at, or near, Coleman Park in Lidcombe between around 7:20 and 7:30pm. The evidence is not clear as to where they were before that time. The records of Witness M's telephone usage (and the cell tower through which her 'phone connected) do not indicate that she was in Strathfield but there is no record between 7:06pm (when her 'phone connected through a tower at Regents Park) and 7:20pm (when her 'phone was near Lidcombe). [181] There are two calls (6:04pm and 6:23pm) in which Witness M and Mumtaz Qaumi were making arrangements to meet in Lidcombe. At the time of those calls Witness M was near Wentworthville and Silverwater/Auburn respectively. [182] The proximity of Auburn to Lidcombe and the timing of those calls, allows for the inference that there was some meeting between the group before the surveillance team first recorded seeing them near Coleman Park at 7:20pm. However, the surveillance evidence established that Witness M arrived in a separate car.
4. The next certain thing that happened is that Mumtaz Qaumi called Les Elias. That call occurred at 7:25pm. Mumtaz wanted to meet Elias but said "I can't talk on the thing". [183] They arranged to meet at "the same place as last time" (that is, The Shark Bar in Liverpool Street, Sydney). The meeting was observed by surveillance police and captured on CCTV outside the Shark Bar. [184] The meeting was brief. I am satisfied that Witness L was observed seated in the rear of Farhad Qaumi's car and there seems to be no dispute about this. This evidence supports a part of the version of events given by both Witness M and Witness L, namely that Mumtaz called Elias and then Farhad and Mumtaz went to meet with him in the city. What Witness M was doing during that time is not clear although the cell tower records suggest that she returned home to Epping. [185]
5. There was a rendezvous involving Witness M, Witness L and the two accused at Five Dock at around 9pm. The surveillance evidence at this point is far from perfect or complete. For example, the arrival of Witness M's Mazda is not recorded. All that is known is that it was parked near Farhad Qaumi's Mercedes and that it departed at 9:29pm. The Mazda was not followed but it returned at 10:10pm. When it returned, Witness M got out of the driver's door and one male got out of the rear driver's side door. The officer could not see the passenger side of the vehicle and it is unclear whether two other people exited the car from the passenger side. Farhad Qaumi was immediately sighted but it is not known where he came from. The officer was certain that he did not come from the other side of the road. [186]
6. Once again, this gap in the surveillance evidence gives rise to a dispute about where the Mazda went during this period of around 40 minutes. The surveillance officers made no recorded observations of any activity at Five Dock where, it seems, Farhad Qaumi's Mercedes remained parked. There is nothing in Witness M's telephone records that suggests that she went to Strathfield at this time although her evidence was that Farhad told her not to take her telephone. [187] The cell tower evidence suggests that Witness M's 'phone remained in the Five Dock area. [188] However, the records give rise to an inference that she was not with the 'phone at that time. There were only two attempted calls within that period (9:46 and 9:47pm) and in each case the calling party was Omar El Cheikh. [189] In another document produced by the Crime Commission and tendered by Mumtaz Qaumi, both of those calls resulted in "no audio". [190] In a call monitored at 10:27pm El Cheikh told Witness M that he "messaged her an hour ago and is not happy". [191]
7. The cell tower records show that Witness M remained in the Five Dock area for a period after Farhad Qaumi and the others left the area and that she was in the region of North Strathfield, Flemington, Strathfield and Burwood between 10:45 and 10:55pm. [192] By this time, the surveillance of Farhad Qaumi and the others shows that they were at Eastern Creek and on their way to drop Witness L home at Orchard Hills. [193]
8. The evidence independent of Witness M and Witness L does not provide corroboration of any attendance outside the Antoun premises on 11 December 2013. However, it provides some support for aspects of their respective (and inconsistent) accounts and the independent evidence does not contradict those accounts. I should repeat that I disregard the evidence of CCTV images that the Crown suggests may show Witness M's car passing by the Antoun residence. [194] I could not safely infer that the pale coloured car depicted in those images is Witness M's dark coloured Mazda.

16 December 2013

1. On the day of the murder, there was an exchange of text messages between Mumtaz Qaumi and Les Elias at around 5:10pm. In the following ten minutes, Mumtaz Qaumi's telephone attempted to call Witness C's telephone on nine occasions. At 7:12pm there was a conversation in which Mumtaz said he needed to see Witness C. Mumtaz said he was in Kellyville but that they would meet at Rouse Hill or Blacktown.
2. Surveillance evidence and CCTV stills from Kellyville Plaza placed both accused men along with Witness L and other BFL Blacktown members at Kellyville Plaza from 6:34pm until 7:15pm. [195]
3. There are a number of CCTV stills depicting cars consistent with Farhad Qaumi's silver Mercedes and Witness C's black Lexus in the area of Bessemer and Forge Streets, Blacktown in the period around 7:30 to 8:00pm. [196] A telephone intercept at 7:53pm provides evidence of the accused arranging to meet Witness C in Blacktown. [197]
4. There is no evidence capable of corroborating the evidence of Witness L and Witness C as to what the accused said to them on the day of the murder. The prosecution case is that the accused instructed Witness L to kill Joseph Antoun and that Witness C was told to drive Witness L to Strathfield to drop off a package. Witness C was not told that there was to be a shooting. In the background of a telephone call made by Mumtaz Qaumi at 5:54pm, Farhad Qaumi was heard to say "Don't tell them what's going on, but." [198] The defence case is that no such instruction was given to Witness L and that the meeting with Witness C was to collect $2,000 (by inference, the proceeds of drug supply). Witness C was merely asked to drive Witness L home to Orchard Hills. [199] The corollary of this, as the Crown pointed out in his closing address, is that the defence case is that Witness L used Witness C as the driver in the murder as a matter of convenience and good fortune.
5. While the conversations and the purpose of the meetings in the afternoon and early evening are greatly in dispute, there is no doubt that after leaving the company of the accused Witness C drove Witness L home (where he collected the gun) and then drove him to Strathfield where he murdered Joseph Antoun by shooting him four times in the upper body. The best evidence is that this occurred at 9:36pm. [200] This is less than two hours after the two accused, the driver and the shooter were together in Blacktown.

The Days Following the Murder

1. Shortly before 1:00pm on 17 December 2013, Mumtaz Qaumi told Les Elias that "I've got the warranty book here for the truck." Arrangements were made to meet and there was surveillance of the group meeting at the Shark Bar between 2:00pm and 4:00pm. [201] There were telephone calls later that day in which the parties discussed getting together to celebrate Mumtaz Qaumi's birthday as well as other business arrangements.
2. On 18 December, 2013 Elias rang to wish Mumtaz Qaumi happy birthday. There were a series of calls between 11:10am and 7:15pm where arrangements were made to meet on the Sydney to Newcastle Freeway near the Wyong exit. The purpose seemed to be to provide the Qaumis with a Lamborghini sports car, owned by Barbaro but registered to a company associated with Elias. Elias was also promising to get a hotel room and strippers to celebrate Mumtaz Qaumi's birthday. [202] An inference can be drawn that the parties exchanged cars shortly after 7:15pm. [203]
3. Between 9:24pm on 18 December 2013 and 12:30am the following morning, there is a further series of calls. [204] Their meaning is open to debate and the first series of calls concerned difficulties with the Lamborghini. In a call recorded at 10:14pm, Elias said "Just give me half an hour. I got some of it now with me, I just want to make sure I've got all the wages for tomorrow." At 11:21pm Mumtaz Qaumi said that he has been waiting so that Elias can show us the car and we can go party. Elias replied: "I know, I know, I know. Fuck I feel like I've just let every fucking cunt down. What do I do? Do I stop fucking chasing and just pay some of the boys 40 grand today and sort it out tomorrow so hope to God, what do I do? … I just need your advice, that's all." [205]
4. There was further contact between the three men at the Star City Casino on 18 and 19 December 2013. [206]
5. On 18 and 19 December 2013, Witness L spoke with Mumtaz Qaumi by telephone on (at least) five occasions and it appears there were attempts made to arrange a meeting. [207]
6. On around Boxing Day 2013, the accused told Witness J that he needed to dispose of a small handgun that had been supplied by Witness M and used by Witness L.
7. On 30 December 2013, Pasquale Barbaro contacted Farhad Qaumi by telephone. [208] On 1 January 2014 Farhad Qaumi and other BFL members were guests of Barbaro on a boat called the Oscar II when Farhad Qaumi was shot. On 2 and 3 January 2014 there were meetings between the two accused, Pasquale Barbaro and Les Elias at the Star City Casino. [209]
8. On 3 January 2014 Farhad Qaumi went to the home of Witness K in Auburn at around 7:30pm. Qaumi left in a vehicle (ZJB 819) with two other men while Witness K left in his work van (BN8 7XH). The two vehicles then drove west on the M4 Motorway, stopped at a restaurant and continued on to Orchard Hills where they stopped in the vicinity of 100 The Homestead, Orchard Hills (Witness L's home before he went into custody). At 9:55pm both vehicles left the vicinity and a short time later Witness K was arrested and the gun that killed Joseph Antoun was found in his work vehicle. Witness K denied the proposition that he asked Farhad for a gun and denied that he went under Witness L's house to obtain the gun. He said the gun was found nearby in bushland, evidence that is capable of providing some support for what Witness L said he did with the weapon. At 10:38pm Witness K called a number associated with Farhad Qaumi and advised another man (who identified himself as "your brother in law") that he had been arrested. At around 11:30pm Farhad Qaumi and Witness M were observed in a park at Guildford and taken to Granville Police Station.
9. On 4 January 2014 Farhad Qaumi had a series of calls with Witness J in which initially he referred (in code) to Witness K being arrested with a gun in his car and later said he was not aware of why Witness K was arrested.

The BFL Blacktown

1. I accept the submission of Senior Counsel for Farhad Qaumi that the evidence of actual violence within the Bankstown BFL was not extensive. However, I accept the evidence of those members who gave evidence that violence was employed from time to time when members did not follow directions. A critical piece of evidence, that I accept, is the evidence of Witness J that Farhad told him that he put fear in the hearts of the members so that they would obey him.
2. However, I find this evidence of very little moment in the overall scheme of things. In particular, I need not be satisfied that Witness L acted out of fear, or was threatened. Given that his evidence of the threat to kill him and his daughter is not corroborated, I am not inclined to act on it. He also gave evidence of being offered part of the proceeds of the crime and this evidence receives some support from Witness M [210] and fits with his attempts to meet with the accused in the days following the murder.

The DNA on the Bag Containing the Murder Weapon.

1. The evidence that matched DNA found on one of the internal bags in the package containing the gun with that of Witness L's de facto or girlfriend is capable of undermining Witness L's credibility. On his account, the plastic bags were given to him by the accused when they were at the location where the gun was hidden. That is, the bags were not in his house and there was no way that his partner could have touched them. There are a variety of possible explanations for this. One is that Witness L was lying and that he packaged the gun using bags from his house. Another is that there was secondary transfer of the DNA as described by Mr Bruce. This is evidence that might go to the credibility of Witness L. It is also relevant to where the weapon was located between the time of the murder and the time that Farhad Qaumi and Witness K moved it on 3 January 2014. However, the location of the gun during that period is not a matter of which I need to be satisfied to any particular standard. Nor does this evidence logically impact on the credibility of Witness K and his evidence of where the gun was on 3 January 2014. Ultimately, choosing between the possible explanations for the DNA evidence is a matter of speculation.

The Consciousness of Guilt Evidence

1. I am satisfied that Farhad Qaumi deliberately and falsely denied knowledge of the weapon and the circumstances in which Witness K was arrested in his conversations with Witness J on the 4 January 2014. However, I have not used that evidence as demonstrating a consciousness of guilt in relation to the Antoun murder. The defence case is that he was providing the weapon to Witness K on the latter's request. In any event, it is not disputed that he was present when the gun was picked up. The dispute is whether it was picked up from Witness L's house or from the hiding spot nearby. If Farhad Qaumi's conduct arose from a consciousness of guilt, it may have arisen in relation to a crime other than the Antoun murder (namely his involvement in facilitating the transfer of the weapon from Witness L to Witness K). The evidence of the movement of the gun remains relevant as proving a connection between the accused and the murder weapon but it would be dangerous to use it as evidence of a consciousness of guilt in respect of the crimes charged in the indictment.

Conclusions

1. In coming to the following conclusions, I have considered the whole of the evidence in a global manner rather than considering the individual pieces of evidence piecemeal. I have considered the apparent logic of events, the credibility (or lack thereof) of the witnesses who gave the evidence and the alternative inferences available and contended for by both sides. I have considered the case of each accused separately although, with the exception of the consciousness of guilt evidence arising out of Farhad Qaumi's actions on 3 January, and related conversations with Witness J on 4 January 2014, the evidence against them is essentially the same.
2. I do not accept the submission that to find the accused guilty I must be satisfied of Witness L's evidence beyond reasonable doubt. At least, I do not accept that submission in those terms. I do accept that I must be satisfied beyond reasonable doubt of Witness L's evidence that it was the accused who engaged him to commit the murder. I also accept that he is the only witness who gives direct evidence of that fact. However, in determining that issue I must take into account all of the evidence. Many other pieces of evidence tendered in the trial inform the question of whether that crucial part of Witness L's evidence is to be accepted beyond reasonable doubt.
3. Having taken into account the credibility issues surrounding the evidence of Witness J, Witness K and Witness C and having scrutinized their evidence with great care and by reference to the other evidence in the case, I am satisfied that their evidence is generally truthful, accurate and reliable.
4. I am satisfied that the accused asked Witness C to drive Witness L to Strathfield on 16 December 2013 around one and half to two hours before the murder. The alternative hypothesis, that they simply asked Witness C to drive Witness L home and that Witness L seized the moment to carry out a murder that he was contracted to perform by somebody else, is not a reasonable or believable one.
5. Similarly, I am satisfied that Farhad Qaumi arranged for [redacted], Witness K, to transport the murder weapon from Orchard Hills to Granville on 3 December 2013. The evidence of Witness K provides support for Witness L's account that he hid the weapon in bushland near his home and showed the accused its location in the days following the murder. Because it receives support from a witness whose evidence I accept, I am prepared to act on Witness L's evidence as to what he did with the murder weapon.
6. I accept that the accused met with Witness M and Witness L at Lidcombe and again at Five Dock on 11 December 2013 and that, between those meetings, the accused travelled with Witness L and met with Les Elias. The only reasonable and logical explanation for this sequence of events is that the meeting with Elias was connected to the two meetings involving the accused, Witness M and Witness L that occurred on either side of it. I am satisfied that that the whole group left the Five dock area in Witness M's car at around 9:29pm and did not return for around 40 minutes. There was ample time for the group to drive by the Antoun residence in Strathfield at around that time and I am satisfied that that is what they did. While Witness L could not give evidence that Witness M was present, and incorrectly recalled that the trip was made in Farhad Qaumi's motor vehicle, both Witness M and Witness L gave evidence that the house was pointed out to them. The surveillance and telephone intercept evidence provides some support for the version provided by Witness M and there is no other plausible explanation for the meetings and events on the evening of 11 December 2013.
7. I am satisfied that the transaction involving the kebab shop for an agreed price of $190,000 with a $20,000 deposit [211] - and probably a number of other conversations in which business dealings were discussed over the telephone by Elias and the accused - were a cover for the true purpose of the payment of at least $80,000 (and probably $100,00) before and after the murder. I draw the inference that a "deposit" of $20,000 was paid on 4-5 December 2013 and that $80,000 was paid on 19-20 December 2013. The alternative hypotheses, that the deal was genuine and/or that the Qaumi's were "stamping" Elias for money do not fit with (i) the sale price of $25,000 in the Gumtree advertisement, (ii) the ongoing attempt by Mumtaz Qaumi to sell the shop after 5 December 2013 when the deposit was paid and Elias asserted "that shop's mine" and (iii) the tone of most of the conversations between the parties and the surveillance evidence and CCTV footage of them meeting and socialising after the murder.
8. The evidence does not allow a clear finding as to whether Pasquale Barbaro, or others, may have stood behind Elias in this enterprise but I suspect that he did. While Barbaro did not know the Qaumi brothers well before the 16 December 2013, he seemed to be on very friendly terms with them by the end of December 2013 and early the following year. It is not necessary for the Crown to establish who stood behind the murder or what motivated those people to act as they did.
9. I am satisfied that the Crown has excluded (beyond reasonable doubt) the hypothesis that Barbaro organised the murder through Witness M who engaged Witness L to do the act. The evidence does not establish that Witness M was living "well and truly beyond her means" or had a sudden, unexplained, source of income. There is little evidence of any contact between Witness M and Witness L between the time of the Hamzy shooting and the murder of Joseph Antoun. The only evidence of contact appears to be the meetings on 11 December 2013 at which the accused were both present and which were interrupted by the need to meet with Elias about something that could not be discussed on the telephone. While there is evidence of contact between Witness M and Barbaro, the evidence does not suggest that the contact had any temporal (or other) connection with the events surrounding the Antoun shooting. There is no evidence of a connection between Barbaro and Witness L, or Barbaro and Witness C, or Barbaro and Witness K. By contrast, the accused were the leaders of a criminal gang of which Witness L, Witness C and Witness K were members.
10. Those findings, the analysis to which I have earlier referred and a consideration of the whole of the evidence lead inexorably to the conclusion that the guilt of both Farhad Qaumi and Mumtaz Qaumi on the charge of murder has been established beyond reasonable doubt.
11. Similarly, the guilt of Farhad Qaumi is established beyond reasonable doubt in relation to the charge of possessing a pistol.

VERDICTS AND ORDERS

1. I find Farhad Qaumi guilty of the murder of Joseph Antoun at Strathfield on 16 December 2013.
2. I find Mumtaz Qaumi guilty of the murder of Joseph Antoun at Strathfield on 16 December 2013.
3. I find Farhad Qaumi guilty of possessing a pistol, namely a 0.38 calibre snub nose revolver when not authorised to do so by licence or permit.
4. Both accused are convicted formally of those offences.
5. The matter will be listed for a sentencing hearing on 3, 6 and 7 April 2017, along with Jamil Qaumi and the matters in relation to which the two accused were found guilty by a jury on 11 November 2016.

Endnotes

1. "There is a real question as to whether accessorial liability and joint criminal enterprise liability are distinct in concept": Miller v The Queen Smith v The Queen; Presley v Director of Public Prosecutions (SA) [2016] HCA 30 at [85] (Gagelar J, dissenting on the central issue in the case).
2. Likiardopoulos v The Queen (2013) 247 CLR 265; [2012] HCA 37 at [23]-[24], [27] and [30].
3. Section 4.
4. See for example KRM v R (2001) 206 CLR 221; [2001] HCA 11 at [36] (McHugh J), R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 at [214] (Wood CJ at CL).
5. Cf R v Markuleski (2001) NSWLR 82; [2001] NSWCCA 290.
6. Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56.
7. Ex ZZ.
8. See, for example, McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37.
9. Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 at 93-94 and Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 at 6-7.
10. T 908.
11. T 1,162.
12. T 1,173 - 1,174.
13. T 1,215.
14. See, for example, Ahern (supra), Tripodi (supra), Elomar & Ors v R [2014] NSWCCA 303 at [267] - [284], R v Eccles & Merritt [1881] III VLR 36 and R v Su [1995] 129 FLR 120 at 162.
15. R v Qaumi & Qaumi (No 11) [2017] NSWSC 95.
16. See T 74 - 77 for objection and legal discussion as to the basis upon which the hearsay evidence was adduced in cross-examination. See also T 362 - 363.
17. Section 165(1)(a) of the Evidence Act 1995 (NSW).
18. Section 133(3) of the Criminal Procedure Act 1986 (NSW).
19. Cf R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455 at [294], [297] (Wood CJ at CL and Howie J), Odgers' Uniform Evidence Law (11th Edition) at [1.4.2900]; see also R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 at [37] - [39] and RELC v The Queen (2006) 167 A Crim R 484; [2006] NSWCCA 383 at [80]. I did not accept Senior Counsel's submission that there were good reasons for not giving the warning (T 1,184 - 1,185) and that submission seemed to be moderated once the decision in R v Rose was ventilated in argument (T 1,186 - 1,187).
20. See for example Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45 at [6], [15] (Gaudron & Hayne JJ).
21. Cf Evidence Act, s 165(1)(e).
22. Cf Evidence Act, s 165(1)(d).
23. Evidence Act, s 165(1)(a)
24. R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487.
25. R v NK (No 3) [2015] NSWSC 1257; R v AC (No 7) [2016] NSWSC 404.
26. There is evidence that they were not offered the opportunity to be interviewed.
27. Dyers v The Queen at [121] (Callinan J).
28. De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33 at [28] - [30].
29. De Gruchy at [28] citing R v Ball [1911] AC 47 at 68.
30. De Gruchy at [28] citing Plomp v The Queen (1963) 110 CLR 234 at 250; [1963] HCA 44.
31. De Gruchy at [29] citing Ellwood [2009] EWCA Crim 2575; (1908) 1 Cr App R 181; Phipson, Best on Evidence, 12th ed (1922) s453 at 385; Best, Presumptions of Law and Fact, (1981) s232 at 182.
32. T 32 - 52.
33. T 54 - 81.
34. The precise timing was difficult to elicit: T 64 - 65.
35. T 98 - 100.
36. T 87 - 89.
37. T 83 - 86.
38. T 90 - 92.
39. T 101 - 106; Ex H.
40. T 122 - 124.
41. T 13 - 31; Ex A - E.
42. Ex B.
43. Ex C.
44. T 125 - 130.
45. T 133 - 140.
46. T 153 - 159.
47. Ex 1, Ex P.
48. T 228 -232, Ex CC.
49. Ex 1, T 311.
50. T 759.
51. T976 - 984.
52. T 142 - 151. Exhibits M, N, O, P and Q.
53. Section 4C, Firearms Act.
54. T 157 - 159, 433 - 444.
55. T 417 - 418, 422 - 423, Ex ZZ.
56. T 162 - 209.
57. Exhibits S and W.
58. Exhibits T, V, X and Y.
59. T 162 - 174.
60. T 1044.
61. T 192 - 198.
62. T 197.
63. As will be seen, Witness L also said that this occurred but did not recall Witness M being present at this time.
64. T 198 - 199.
65. T 176 - 177.
66. T 180 - 191.
67. T 207 - 209.
68. T 210 - 212.
69. T 214 - 217.
70. Ex Z.
71. T 95 - 97, Ex G.
72. T 218 - 220.
73. T 221 - 227.
74. Exhibits AA and BB.
75. See above at [88] - [95].
76. T 223 - 247, 276 - 298, 311.
77. T 299 - 311, 314 - 394, 985 - 997.
78. Exhibits DD, EE and FF.
79. Ex GG.
80. Ex HH and JJ.
81. Ex 1.
82. Exhibits 2 and 3.
83. See T 279 - 281; 284.
84. T 293.
85. Ex 4.
86. Ex MM, T 307.
87. Ex KK.
88. Ex LL.
89. Ex NN.
90. Ex LL.
91. Ex LL. The Crown did not contend that this statement was relevant, for example, as evidence of the payment of the deposit for the Kebab Shop which was discussed on 4-5 December 2013.
92. Ex MM.
93. Exhibits OO, PP and QQ.
94. Ex RR.
95. Ex RR, p 11.
96. Once again, there was a discussion of the status of the evidence when it came in the form of hearsay: T 362 - 364.
97. T 363.
98. Ex 5.
99. T 372 - 390, Exhibits 6 - 16.
100. T 386.10-20.
101. MFI 60.
102. T 985 - 1022.
103. Ex 43.
104. T 822 - 826.
105. Ex 46.
106. T 398 - 411.
107. Ex XX.
108. These included Exhibits 6, 14, 17, 18, 29, 40, 45, 48, EEE, FFF, UUU.
109. T 952 - 966 and Ex TTT. The name and identity of the witness was suppressed: T 950 - 951.
110. T 961 - 962.
111. Ex YY.
112. Ex AAA, pp 4004 ff.
113. T 424.
114. Ex AAA, p 4006.
115. Ex ZZ.
116. Ex RR, p 127.
117. T 126 - 128.
118. Indicated by [square brackets].
119. T 613 - 614.
120. T 1,264.
121. T 453.5-10.
122. Ex DDD was the Avis rental agreement.
123. Ex CCC.
124. See Ex RR, pp 32 - 41, calls between Witness M and Mumtaz Qaumi and Mumtaz Qaumi and Elias on 11 December 2013.
125. Exhibits 17 - 18.
126. T 475, 640.
127. See for example T 640, 661, 663 - 664, 664 - 665.
128. Contrast, for example, T 583 and 597 with exhibits 19, 20, 21 and 22.
129. T 597 598.
130. T 1,255.
131. T 673 - 836.
132. T 687.
133. Above [53] - [54].
134. T 700 - 701.
135. T 704.
136. Exhibits HHH and JJJ.
137. Exhibits KKK and LLL.
138. The sentences imposed and discounts provided are set out in Ex GGG.
139. Ex 30.
140. Ex 30, p 52.
141. Ex 30, p 65.
142. Ex 30, p 64.
143. T 838 - 872.
144. Exhibits OOO and PPP.
145. Ex NNN.
146. T 893 - 908.
147. Ex RRR.
148. Ex RR, p 127.
149. T 918 - 930.
150. T 933 - 943.
151. T 719.
152. T 56.
153. Ex 2 p 2.
154. Ex 46.
155. T 51 and 56 - 57.
156. Ex 3, p 2.
157. Ex MM.
158. T 1191.
159. Ex LL.
160. Ex KK.
161. At one stage in his address, Senior Counsel for Mumtaz Qaumi suggested that the original advertisement (and sale price) may have been posted by the previous owner but this submission was not pressed given the dates and substance of the documents: T 1149 - 1151.
162. Ex 3.
163. T 453.
164. T 697.
165. Ex 8.
166. Ex RR.
167. Exhibits LL and NN.
168. Exhibits 9, 10, 11, 12, 13, 14 and 15.
169. T 340.
170. Ex 2, p 4.
171. T 60 and 287.
172. T 424 and 629.
173. Ex 2, p 3.
174. See, for example, T 1,192.
175. Ex 3, p 3.
176. Ex 3, p 1.
177. Ex 2, p 1-2.
178. The Investigator's Note does not indicate whether Elias was asked about specific dates or meetings.
179. Ex 3, p 3.
180. Ex 2, p 2.
181. Ex 17, pp 27-28.
182. Ex 7, p 22-23 and 26-27.
183. Ex RR p 39-40.
184. Exhibits S and T.
185. Ex 7 pp 30-32.
186. T 198.
187. T 459.
188. Ex 17, pp 36-37.
189. Ex 17, p 35-36. The two calls resulted in 22 entries on the exhibit, but the calls were identified by the codes D4D4 and EDE8 respectively.
190. Ex 18 calls 63-64.
191. Ex 18 call 66.
192. Ex 17, p 39.
193. Ex W.
194. Ex XX.
195. Ex Z.
196. Exhibits DD, EE, FF, GG and WW.
197. Ex RR p 56.
198. Ex RR, p 43.
199. T 859 - 862.
200. The evidence of the neighbour who looked at the time on his computer when he heard the shots: T 99.
201. Exhibits AA and BB.
202. Ex RR pp 67-87.
203. Ex RR pp 85-87.
204. Ex RR pp 87-101.
205. Ex RR p 92.
206. Ex PP and RR.
207. Exhibits 31, 32, 33, 34 and 35.
208. Ex VV.
209. Ex QQ.
210. T 582.
211. Ex RR , p 10.

Amendments 03 March 2017 - Typographical errors and further redactions made 3.3.2017 06 March 2017 - Typographical errors 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: 06 March 2017