Farhad Qaumi v R; Mumtaz Qaumi v R

BATHURST CJ: I have had the advantage of reading the judgment of Hoeben CJ at CL in draft. I agree with the orders proposed by his Honour and with his Honour’s reasons.

HOEBEN CJ at CL: The applicants, Farhad and Mumtaz Qaumi, seek leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal their convictions on 28 February 2017 on one count of murder, after a trial before Hamill J sitting alone and without a jury in the Supreme Court at Sydney. Farhad Qaumi also seeks leave to appeal his conviction on one count of possessing a pistol, contrary to s 7(1) of the Firearms Act 1996 (NSW).

Although the applications were considerably out of time, the Crown did not oppose leave being given for the appeals to proceed. In those circumstances, leave to appeal out of time was granted by the Court.

The applicants relied upon a single ground of appeal:

No challenge was made to the directions of law, nor to the admission of evidence and evidentiary rulings made by the trial judge.

It was common ground that the relevant principles were set out by the plurality (French CJ, Bell, Keane and Nettle JJ) in Filippou v The Queen [2015] HCA 29; 256 CLR 47 where their Honours said:

The applicants were the leaders of a criminal gang, being the Blacktown Chapter of the Brothers for Life (BFL Blacktown) of which Witness L, Witness C, Witness J and Witness K were members.

On 16 December 2013, Joseph Antoun (the deceased) was murdered at his home in Strathfield when he opened the front door and was shot four times in the upper body. He died almost immediately. There is no doubt that the assassin was Witness L. He admitted his involvement and has been sentenced for murder. There is also no doubt that Witness C drove Witness L to and from the crime scene, although Witness C claimed (and the prosecution accepted) that he did not know Witness L’s purpose. He said that he believed that Witness L was simply going to drop off a package. Witness L did not know the deceased and there is no evidence that he had any reason to kill him. The question at the heart of the trial was who gave the order or contracted Witness L to murder the deceased. The Crown alleged that the order came from the applicants after they accepted a contract to kill the deceased from a man called Elias “Les” Elias (Elias). On arraignment, each of the applicants pleaded not guilty. It was for the Crown to establish their guilt beyond reasonable doubt.

The Crown relied upon the direct evidence of three informant witnesses who were involved in the killing and its aftermath. These witnesses were Witness L, Witness C and Witness K, who was found in possession of a 0.38 calibre Smith & Wesson snub nosed revolver identified by ballistics evidence as the weapon used to shoot the deceased. The Crown also called evidence from Witness M, who claimed that she was involved in the preparation for the shooting and that the applicants told her that they were responsible for the murder.

The Crown relied on a body of circumstantial evidence as well. There was evidence that the applicants, as leaders of the Blacktown Chapter of the BFL employed violence and intimidation to ensure that the members of the group carried out their instructions. This evidence established a connection between the applicants and Witness L, Witness C and Witness K, each of whom was a member of the BFL Blacktown.

Evidence was also led to place events in context and to explain the conduct of witnesses, such as Witness L, Witness C and Witness K. The circumstantial case included “tendency evidence” that established that the applicants engaged Witness L to carry out another shooting a couple of months earlier. There was evidence proving a connection between Elias and the applicants, including contact shortly before and after the murder and the payment of a large sum of money into Mumtaz Qaumi’s bank account. There was evidence that Farhad Qaumi was with Witness K shortly before Witness K was arrested in possession of the murder weapon. There were a number of telephone intercepts supporting this circumstantial case, including calls demonstrating the arrangements made for meetings that the Crown asserted were relevant to the murder, and calls between Farhad Qaumi and Witness J (Witness K’s brother) shortly after Witness K was arrested.

Teagan Mullens was the partner of the deceased, having met him eight years before his death. The couple had two children, twin girls aged six years. She was unable to say much about his business. She gave evidence that he had previously been Elias’s partner but that they parted on bad terms. She said that the Elias situation never really went away. Under cross-examination she agreed that the deceased had been charged with extortion and had been in and out of gaol over the preceding 30 years. She was aware of a dispute between him and Pasquale Barbaro (Barbaro) and had been told after the murder of her husband that Barbaro had threatened to kill him. She named other persons who had had a falling out with the deceased.

On 3 January 2014 (about 18 days after the murder), a .38 calibre Smith and Wesson snub nosed revolver was located by police within packaging in the rear of a vehicle driven by Witness K. 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 pistol 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 three forensic findings of significance. First, the fingerprints of Witness L and Witness K were found on two of the plastic bags. Second, female DNA consistent with that of the DNA profile of Witness L’s girlfriend/de facto partner was located on one of the bags. (Witness L could provide no explanation for his partner’s DNA being found on the bag.) David Bruce, a forensic biologist and DNA expert, gave evidence in the trial that the presence of DNA could possibly be explained by secondary transfer. Third, there was no forensic evidence (fingerprints or DNA) connecting either of the applicants with either the pistol or the bags within which it was located.

There was no issue that the .38 calibre pistol, found in Witness K’s van on 3 January 2014, was the weapon that was used to kill the deceased.

When summarising this evidence, his Honour noted that although there was no forensic evidence connecting either of the applicants to the murder weapon, the prosecution relied on evidence that Farhad Qaumi was with Witness K shortly before he was arrested in possession of the pistol. As at 3 January 2014, police were conducting surveillance. Part of that evidence came from Detective Jeffcoat on the basis of his own observations and what he was told by other surveillance police. Detective Jeffcoat observed Farhad Qaumi meet with Barbaro and 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 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). The other vehicle was Witness K’s work van. The vehicles were followed from the Orchard Hills address to the M4 Motorway. They were heading in an easterly direction but, at that stage, were not traveling in convoy.

Shortly thereafter, Senior Constable Teasel stopped Witness K and undertook the search which uncovered the murder weapon. This evidence was not disputed. His Honour observed that while the evidence did not establish a direct connection between the applicants and the murder weapon (let alone the murder itself), the Crown relied upon the evidence as part of its circumstantial case. The Crown did so on the basis that it provided some support for the evidence of Witness K and placed in context telephone calls between Farhad Qaumi and Witness J early in the morning following the arrest of Witness K. His Honour also considered that it stood alone as part of the circumstantial case on which the Crown relied to connect Farhad Qaumi to the weapon that was used to murder the deceased.

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. (Reference has already been made to the evidence of surveillance on 3 January 2014 which related to the movements of Farhad Qaumi and Witness K in the period before the seizure of the murder weapon.)

Six officers gave evidence of surveillance conducted on 11 December 2013. Two surveillance reports were tendered that summarised the observations made by the officers on that day. This evidence showed that Farhad Qaumi and two other males arrived in a silver Mercedes Benz (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.

At 8:10pm the Mercedes was parked in 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 of an establishment called the Shark Bar depicting Elias and Farhad Qaumi embracing each other and walking together in Liverpool Street.

In cross-examination of Constable Murdoch, it was established that he did not see “the Qaumi brothers” and 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 silver Mercedes was seen at 8:30pm driving down Liverpool Street, then south in George Street and then west in 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, a different surveillance team took over. Farhad Qaumi was identified as the person fuelling the vehicle at 8:35pm.

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 William Streets between 8:57pm 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 was observed travelling 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 was a matter of contention in the trial. There were no recorded observations of the three males between 9:29pm and 10:10pm when Witness M’s Mazda returned. At that stage the surveillance log reported that an “unknown female (herein referred to as UF1) exited via the driver’s door and an unknown male (UM1) exited via the rear driver’s side door”. Farhad Qaumi, UM1 and UF1 walked toward the northern end of Spencer Street. There was no dispute that UF1 was Witness M.

The police officer making the observations thought that Farhad Qaumi when joining the other two, came from the northern side of the vehicle and not from the southern side where the Mercedes Benz was parked. Under cross-examination, the police officer said that between 9:08pm and 10:10pm he did not observe Farhad Qaumi, UM1, UM2 and Witness M. The police officer agreed that he did not see Farhad Qaumi getting out of the Mazda vehicle.

At 10:10pm 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, they returned to their vehicles and left the area.

His Honour set out his conclusions in relation to that evidence as follows:

His Honour noted that the evidence of surveillance on 16 December 2013 was to be considered in the light of the fact that the murder occurred at around 9:35pm that night. The evidence of the police officers making the observations on that date was not challenged.

At around 7:00pm that night, 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 BFL Blacktown. There was some discussion around a mobile telephone. Farhad, Mumtaz and Witness L left in the silver Mercedes previously associated with Farhad Qaumi. The vehicle was observed to leave the area driven by Farhad Qaumi.

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 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. There was no issue that Witness C was the driver of the black Lexus.

Keith Weise was employed by the Roads and Maritime Services Department and was responsible for traffic patrols on the M4 on 16 and 17 December 2013. He said that at around 11pm on 16 December 2013, he observed a black Lexus stopped on the side of the road. It had a flat tyre. Mr Weise and a colleague helped the driver to change the tyre. The vehicle drove off at around 11:22pm.

Surveillance police gave evidence of their observations on 17 December 2013. A surveillance report was tendered.

His Honour noted that there was no challenge to the evidence of the observations made on that night and accordingly, regarded the following matters as established”

Apart from the fact of the meeting and that a conversation took place between them, his Honour placed no weight on the fact that the police observation suggested that they were watching a news item concerning the murder. This was because his Honour concluded that the fact that the men watched a news item concerning a murder was not capable in any rational way of establishing that the applicants and Elias were involved in the murder.

Detective McAneny was the “second in charge” in the investigation. He gave evidence of the initial investigation and the search of premises associated with Witness C. Witness C declined to be interviewed. From 10 to 13 February 2014 police obtained CCTV footage from a number of premises in the vicinity of Sunnyholt Road and Bessemer Street, Blacktown. The CCTV footage was taken on the day of the murder (16 December 2013) at times between 7:15pm and 8:05pm. It showed 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. Police charged Witness L with 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.

The cross-examination of Detective McAneny elicited evidence of a number of persons who had motive to do harm to the deceased and of the failure of police to obtain statements from a number of such persons due to their refusal to co-operate. There was a denial of involvement (and refusal to testify) on the part of Elias and statements made to investigating police by some of those people (including Barbaro). A number of documents were tendered during the course of the cross-examination. These included a document setting out the results of the forensic examination (fingerprints and DNA) of the murder weapon and the bags in which it was located. This connected Witness C and Witness L to the weapon and also disclosed the DNA of Witness L's girlfriend on the bags.

At the time of these investigations, Elias was living in the Philippines and refused to return to Australia to give evidence. 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. These purported to summarise conversations between Elias and 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 documents. Where it was second or third hand hearsay, i.e. where Elias told police things that others had told him, it was admitted on a limited basis.

Elias denied any involvement in the killing of the deceased. 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 which he had with the Qaumi brothers, including the proposed purchase of Mumtaz Qaumi's kebab shop. 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 and run it. Elias said that he provided a bank cheque for $100,000 to Farhad Qaumi in exchange for cash. This $100,000 appeared to be subject to a NSW Crime Commission (Crime Commission) seizure of a bank account operated by Farhad Qaumi. A document was produced showing that the money was a “gift” from Elias. This document was located in a search of Farhad Qaumi’s home. Elias also referred to lending Farhad Qaumi a Lamborghini sports car.

Elias told police about other people and their associations and links to himself, the Qaumi brothers and the deceased. This included Barbaro and the fact that the deceased owed Barbaro a large amount of money. Elias nominated people that he considered the “most likely suspects” for the murder. In cross-examination Detective McAneny was asked about various persons who might have been involved in the killing of the deceased because of their animosity to him.

Police spoke to Barbaro, who flatly denied any involvement in the shooting and denied more generally using violence in the course of his business as a “mediator”. 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”.

Detective Peter 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. Detective Smith gave similar evidence in relation to Witness L. Both of those witnesses initially refused to co-operate but subsequently assisted police when charges against them 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.

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. The Crown contrasted this with the much higher price ($190,000) agreed between Mumtaz Qaumi and Elias. An ANZ banking document, which was seized during the course of a search of Mumtaz Qaumi’s home, showed a transfer from “KPM of $80,000” into Mumtaz Qaumi’s account on 19 December 2013. 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”. There were other documents located in a search directed to Mumtaz Qaumi’s business interests, including an application and registration of a business name (Erina Kebab House) on 28-30 August 2013. A document, dated 2 September 2013, evidenced a gift of $100,000 from “Les Elias, Director of KPM Building Pty Limited” to Farhad Qaumi for “family restitution”.

On 4 December 2013, both Farhad and Mumtaz Qaumi spoke with Elias by telephone. There was a 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 “so now you can’t sell it – that shop’s mine.” He laughed after making that comment. At 3:44pm on 9 December 2013, Mumtaz Qaumi and Elias discussed meeting “at the same place. Upstairs”. CCTV stills from the Shark Bar Hotel showed 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.

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. His Honour concluded that this evidence fitted in with the surveillance evidence of the meeting at Lidcombe that day.

On 16 December 2013, there were telephone intercepts involving the applicants, Harris Sadat, Masieh Amiri and Witness C. There was 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. His Honour observed that that evidence was to be considered with the surveillance evidence of meetings later that day.

Between 17 December 2013 and 3 January 2014, there were a number of further intercepts, some of which were consistent with Elias having purchased the kebab shop and others which referred to the provision of a Lamborghini by Elias to Farhad Qaumi.

On 3 January 2014, there were CCTV stills showing the two accused, Elias and Barbaro at the Star City Casino and there were telephone intercepts between Farhad Qaumi, Witness K and Witness M. This was the day that police made observations that preceded the arrest of Witness K and the seizure of the murder weapon.

Detective Smith produced photographs and certificates connecting Farhad Qaumi to the silver Mercedes and Witness M to the black or very dark coloured Mazda CX 5 which had two registrations during the relevant period.

The final item tendered through Detective Smith was a telephone intercept between Pasquale Barbaro and Farhad Qaumi on 30 December 2013.

Detective Smith was cross-examined about other persons with a motive to harm the deceased. The cross-examination emphasised that none of the persons who provided information to police concerning enemies of the deceased or who were implicated by it, provided statements or gave evidence and it was submitted by the applicants 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”.

The cross-examination of Detective Smith, on behalf of Mumtaz Qaumi, focused on the sale of the kebab shop. There was an intercepted communication from Elias about the possible sale of the kebab business to a person called “Fred” on 14 December 2013. There were communications about the lease and the sale of the shop on 27 December 2013. There was a further communication which identified Elias as the purchaser and the suggestion that he might operate the business as a “franchise” but that the lessor was insisting on payment of the rent. There were further text messages on 28 December in which Elias attempted to arrange for his manager to inspect the shop.

His Honour made the observation concerning those communications that although Elias had said “that shop’s mine” on 5 December 2013, the transfer of $80,000 from him to Mumtaz Qaumi did not occur until 20 December 2013.

Detective Smith was recalled at the end of the Crown case. He provided evidence of the segments 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 Elias. The relevant evidence of those matters was served after Witness M and Witness L had given their statements. 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.

There was cross-examination about Witness L’s interview of 14 October 2014. This demonstrated that Witness L told police that it was Elias (not Barbaro) who the applicants nominated as the person from whom they accepted the contract to kill the deceased. It was also established that a number of potential witnesses refused or were not asked to make statements.

In relation to the telephone intercepts and records, his Honour made the following observation:

The direct evidence of the applicants’ involvement in the murder came 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 murders, as well as that of the applicants. Two others (Witness C and Witness K) gave evidence that they were directed by the applicants either to drive Witness L to the scene of the murder or to dispose of the murder weapon. The final three 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.

Witness J was involved in the criminal activities of the BFL Blacktown and received a substantial reward for his offer to give evidence against the applicants. His 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 that Farhad Qaumi was the leader of the BFL Blacktown and that Mumtaz Qaumi was the second in command. Farhad Qaumi ruled the group with fear and had on one occasion told him that “he put fear in the members’ hearts and they’ll obey him”.

He gave evidence that in October 2013 Witness M told Farhad Qaumi that Mohammed Hamzy (the leader of the BFL Bankstown) had paid someone to try to kill Farhad Qaumi. He advised Farhad Qaumi not to react to this threat and that Farhad became angry with him. Mumtaz had agreed with Farhad’s proposal “to get Mohammed Hamzy”. He said that Mumtaz always agreed with Farhad. Farhad told members of the group “you have to kill Mohammed Hamzy”. He saw Farhad load a .45 calibre pistol while wearing gloves and give it to Witness L. He said that Farhad planned to be somewhere where he was under observation by cameras when the murder took place. Later, Witness J was told that the wrong person was shot.

The Crown adduced this evidence for a particular purpose, namely to establish a tendency in the applicants to direct Witness L to carry out shootings on their behalf. His Honour directed himself that the evidence could not be used in any other way. His Honour noted that although the fact that Witness L was directed or requested to carry out the Hamzy shooting was not disputed, the circumstances of the two shootings were self-evidently very different. The Hamzy shooting was a response to a threat posed by Hamzy to kill Farhad Qaumi whereas the Antoun shooting was alleged to be a contract killing. Accordingly, his Honour found that the only tendency it was capable of establishing was the applicant’s use of Witness L as a shooter. It had no real probative value to any other issue in the case.

In cross-examination in the jury trial, 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”.

Witness J gave evidence of driving to Canberra with Farhad and Mumtaz Qaumi around Boxing Day of 2013. There was a discussion in which Farhad told him that he had a firearm stored somewhere which he wanted to move and that it was in the bush somewhere around Penrith. Farhad said the firearm 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 not able 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 pistol. In the jury trial, Witness J agreed in cross-examination that Witness M was a person who had access to firearms.

Telephone intercepts of three phone calls between Farhad Qaumi and Witness J on 4 January 2014 were tendered. The calls related to the arrest of Witness J’s brother, Witness K. His Honour noted that this evidence had to be considered with the surveillance evidence that preceded the arrest, the identification of the pistol as the murder weapon, a telephone intercept involving Witness K recorded at 10:38pm on 3 January 2014 and the conversation which he had with Farhad Qaumi on Boxing Day 2013.

Senior Constable Teasel gave evidence that Witness K was arrested shortly after 10:00pm and that the pistol was located at about 11:15pm. 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):

Witness K 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.

In a call recorded at 2:07am Witness J sought more information as to the area where his brother was arrested. Farhad said:

Witness J was directed by Farhad Qaumi to ring Parramatta Police station and all the western suburbs police stations.

At 6:52pm on 4 January 2014 Witness J telephoned Farhad and provided a report of what he had found out. He said that police had been at his father’s house and that “there was another guy behind him and 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.”

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”.

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.”

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”.

His Honour found that this series of conversations was 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. 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 submitted that this evidence gave rise to an inference that Farhad knew that Witness K was arrested because he was in possession of a pistol. It is capable of providing some support for Witness K’s evidence as to how he came to possess the murder weapon and provided an indirect, but potentially important, connection between Farhad Qaumi and that weapon. The Crown accepted that it was 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.

His Honour took into account that Witness J was criminally concerned in the criminal activities of the BFL Blacktown and had received a substantial reward for his co-operation with police. He was a witness whose evidence might be unreliable and his testimony had to be carefully examined before it was safe to act upon it. His Honour noted that under cross-examination Witness J was prepared to make concessions but his memory of detail was not always clear. His Honour noted that the cross-examination was designed to clarify and elicit further information rather than to impeach his credibility altogether. His Honour found that a good deal of this evidence was not in dispute and that parts were corroborated by independent evidence such as telephone records and intercepts. The applicants also placed some reliance on his evidence to impeach the credibility of Witness M. His Honour noted that when asked in addresses whether Witness J should be considered to be a witness of credit, Senior Counsel for Farhad Qaumi said “largely, yes”. His Honour accepted the evidence of Witness J.

Witness M on her own account was criminally concerned in the murder of the deceased. She claimed to have been told about the contract and carried out some surveillance of the deceased’s residence in the days leading up to the murder. His Honour found that there was no evidence capable of supporting this version of events. His Honour found that the telephone records and Witness L’s evidence did not support it and tended to undermine Witness M’s version of events.

His Honour found that if this part of her account was false, the balance of her evidence had to be treated with extreme scepticism. He noted that she was not charged with her involvement in the deceased’s killing and received a large discount (50 per cent, including her plea of guilty) from the sentence in relation to the Hamzy shooting and other criminal activity. The charges she faced were reduced significantly as a result of her belated co-operation with the prosecution. His Honour found that she was motivated by self-interest, rather than any genuine desire to assist authorities, or to right a wrong.

His Honour found that Witness M demonstrated a strong animosity towards the applicants and had a number of strong motives to give evidence against them. She had previously given false evidence under oath.

Witness M gave evidence over seven days, from 17 to 28 November 2016. Most of this time was occupied by cross-examination. Her evidence was in dispute in most significant respects. Because his Honour had made adverse findings as to her credit, he indicated that he would only accept her evidence when it was not in dispute or where it received support from other evidence.

In her evidence in chief, Witness M said that she came to meet the Qaumi brothers through her long time association with the Hamzy family. She had been the girlfriend of Bassam Hamzy from 1998 to 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 BFL Bankstown. It was through this connection that she came to meet Farhad Qaumi. She was aware of discussions between the groups and their leaders concerning the area where each would operate and she passed messages between them. She said the Blacktown chapter was to operate between Granville and Blacktown.

Witness M was taken to the events of 28 to 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 clearly suggested that she was understating her involvement and role in the shooting.

By way of example, his Honour pointed out that Witness M 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. Where there was a conflict in the evidence, his Honour accepted the evidence of Witness J and Witness L over that of Witness M. His Honour said that where the evidence of Witness M was not in dispute or where it accorded with the evidence of other witnesses, especially Witness J and Witness L, he was prepared to accept it. His Honour found that otherwise the conflicts in her evidence were only significant in that they reflected upon her credibility and provided a further reason to treat her evidence with a great deal of caution.

In evidence in chief Witness M said that before the Antoun shooting, she met with Farhad and Mumtaz Qaumi in a “little dead end street in Blacktown”. She said that Farhad told her that he had been offered $200,000 by Elias to kill the deceased. She said Mumtaz was present in the area but she was not sure whether he was there when Farhad told her this. However, both applicants were present when she was told how the money would be paid:

Witness M also said that Farhad told her that the Crime Commission had seized $100,000 from his son’s bank account and that Elias went to the Crime Commission to say that he had given Farhad the money. She said that she had referred Farhad to a particular lawyer to assist with the Crime Commission proceedings.

On 12 December 2013, she rented a motor vehicle. She gave evidence that the day before she rented the car, i.e. 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 in 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 Elias 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. 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.

His Honour found that Witness M’s account of the meetings and movements on 11 December 2013 received general support in the surveillance evidence and the telephone intercepts. He noted, however, that contrary to parts of her evidence, the surveillance evidence established 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 William Street, Five Dock at 9:29pm and there was no evidence that directly supported her evidence that the group then drove to and from the deceased’s residence in Strathfield. However, Farhad Qaumi’s Mercedes remained in the same spot until the Mazda returned at 10:10pm. The evidence of the police officer 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 (inferentially Mumtaz Qaumi and Witness L) – were observed together in William Street after the return of the Mazda at 10:10pm and the departure of both vehicles 10:22pm.

His Honour found that it was significant that Witness L did not remember whether Witness M was present on 11 December 2013 but the surveillance evidence suggested that, on this issue at least, Witness M’s memory was to be preferred to that of Witness L.

Witness M said that over the next three days that she used the rented car to carry out Farhad’s instructions 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. 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 when she might have been conducting some kind of surveillance in the Strathfield area, his Honour had grave reservations about this part of her evidence.

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.

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 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.

The cross-examination of Witness M ranged over days and many subjects. His Honour was not prepared to set out in detail the areas in which her evidence was demonstrated to be inconsistent internally or in conflict with other evidence in the case. Nevertheless, his Honour concluded that in order to understand the reasons why he concluded Witness M’s evidence could not be accepted unless it received support from other evidence, it was appropriate for him to set out some of the more troubling aspects of her evidence.

His Honour noted that 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.

His Honour found that Witness M’s admission that she had perjured herself in giving evidence at the Crime Commission had an obvious impact on her credibility. His Honour found that Witness M’s evidence in the Crime Commission also potentially had a more subtle impact on her credibility. His Honour concluded that the method of examination at the Commission involved providing witnesses with information that had been gathered in the course of an ongoing investigation. This had the capacity to contaminate versions of events that she later provided to police or gave in evidence. Witness M said “she couldn’t remember what happened at the Crime Commission”. Although it was not made clear what information the Crime Commission actually disclosed to Witness M, it was obvious that she had been asked questions about the sale of the kebab shop and the meetings and phone calls on 11 December 2013.

His Honour noted that the fact that her plea came so late meant that she and her lawyers were served with the entirety of the prosecution brief. As a result, and assuming that Witness M had 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. His Honour concluded that her evidence might have been contaminated unconsciously by things that she had read in the brief.

His Honour found that putting aside the possibility of contamination, the evidence showed that Witness M was a manipulative person, motivated by self-interest, with a capacity to lie to achieve her own ends.

Based on the evidence of Witness J and Witness L, his Honour was satisfied that Witness M understated her involvement in the Hamzy shooting. His Honour did not accept her evidence as to what she told Farhad Qaumi about Mohammed Hamzy’s intentions and he 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). His Honour accepted that she volunteered to drive when Witness J exhibited a reluctance to be involved whereas her own evidence was that she was co-opted by Farhad Qaumi to be the driver. In this regard, his Honour accepted the evidence of Witness J and Witness L, and rejected Witness M’s evidence that she was a reluctant participant.

Based on the absence of corroboration from Witness L and the telephone records, his Honour did not accept the evidence of Witness M that she carried out surveillance of the Strathfield premises for three days before the shooting. His Honour found that her evidence on this topic made very little sense and was vague and unconvincing.

Based on the tone of the telephone intercepts between herself and Farhad Qaumi, his Honour did 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 the Antoun shootings. His Honour found that the telephone calls between them in the period 20 December 2013 and 4 January 2014 suggested the opposite and his Honour did not accept that she was simply putting on an act in the telephone calls.

The applicants tendered a telephone intercept of a call between Witness M and Pasquale Barbaro. The call was recorded on 23 January 2014. The parties apparently sounded very friendly in this conversation which concerned Barbaro giving Witness M Elias’s telephone number. Witness M advised Barbaro that the “word on the street” was that he was an informer. Barbaro was amused by this. The telephone conversation was a lengthy one and covered a number of topics including that Mohammed Hamzy was in gaol. The applicants relied upon the closeness of the relationship between Witness M and Barbaro as supporting the possibility that Witness M, who had access to guns, had organised the murder of the deceased on Barbaro’s behalf. This possibility also took into account Barbaro’s apparent hatred for the deceased.

In commenting on the evidence of Witness M his Honour said:

His Honour noted that Witness L was the only witness who gave direct evidence that it was the applicants who engaged or directed him to carry out the killing. When dealing with his evidence, his Honour noted that he was a witness with many obvious credit issues and concluded that it would be dangerous to act on his evidence in the absence of independent support.

Witness L had been a member of the BFL since his release from prison where he had been serving a sentence for robbery. When the Parramatta Chapter of the BFL split into three groups Witness L went with the Blacktown group led by Farhad Qaumi. He said that the group was involved in drug dealing, “drug rips” (the extortion of rival drug dealers) and the possession of guns. Farhad Qaumi led meetings of the BFL Blacktown 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. One of the persons to have suffered in that way was Witness C who was punched and kicked by a group of members on Farhad’s order and hit with a dumbbell. Witness L gave evidence that guns were stored at Farhad Qaumi’s brother-in-law’s house in Granville and at a warehouse near the clubhouse in Blacktown.

Witness L was one of a number of BFL members who went to Mohammed Hamzy’s house in Revesby Heights on 29 October 2013 in order to kill Mohammed Hamzy (who was known as “Little Crazy” or “LC”). Farhad Qaumi told the group that they were going to shoot LC that night and decided that Witness L, Jamil Qaumi and another man were to be the shooters. Farhad handed Witness L a .45 calibre semi-automatic pistol and the other two shooters were also given pistols. A description of Mohammed Hamzy was provided and the shooters were driven to his house by Witness M. They entered the garage and several shots were fired at a person they believed to be Mohammed Hamzy and another man. Witness L found out the next day that the wrong person had been killed.

Witness L said that in December 2013 the applicants 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 wrong address. They then called up Elias and went into the city to meet him. After meeting Elias they travelled back to Strathfield and the applicants pointed out a house. Witness L said that he was told that the Qaumis would receive a contract of $200,000 from “Pasquale and Les”. Witness L said that the reconnoitre of the house was conducted in Farhad Qaumi’s car and he could not recall meeting anybody else that night. His Honour noted that those parts of his evidence were inconsistent with the version provided by Witness M who said that she was present and the group travelled in her vehicle.

In cross-examination, Witness L agreed that he had not been told the details of the contract until the day of the shooting. Later in his evidence in chief Witness L said that the Qaumis told him they would fix him up later (i.e. pay him part of the contract money). Witness L said that he never received any money.

On the day of the shooting, Mumtaz Qaumi came to Witness L’s house. When Witness L went outside he saw Farhad Qaumi who told him “we gonna do Joe today”. Witness L claimed that he expressed reluctance because they were under surveillance but Farhad said “[n]o, no, you’re just paranoid”. Witness L said he did not 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 applicants gave him a revolver, which had been wrapped in a tea towel. Witness L put the pistol in his house and got changed. The Qaumis then attempted to contact Witness C but he did not answer the phone. They went to Kellyville Plaza where they unsuccessfully tried to organise a car. Eventually, they made contact with Witness C and a meeting took place near the Blacktown club house. The Qaumis described the target and told him to pretend to be from the TNT company and that he was there to deliver a package.

Witness L later said that the Qaumis told him to “say you Adam, you from TNT company.” 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.” 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 something that could be used as a package.

Witness L said that Witness C then drove back to Witness L’s home where he got changed and got the pistol. They drove to Strathfield. Witness L went to the front door and said that he was Adam from TNT and that he had a package for Joe. The man who opened the door “was a big guy with a bald head”. Witness L pulled out the pistol and shot him, firing all of the bullets. Witness L ran to the car and Witness C drove him back to his house. Witness L said that 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 about 100 – 200 metres from the house and burnt the clothes. Witness L told Witness C to get rid of his phone and the GPS. Witness L said that he hid the pistol under a tree.

The day after the shooting, Farhad and Mumtaz went to Witness L’s house and he told them what happened. They had already heard about the shooting on the news. They asked him where the pistol was and he showed them where it was. They gave him a plastic bag to put the pistol in and he put it in the same place under the tree. Farhad and Mumtaz drove him back to his house. Witness L said that he saw the applicants again at the Star City Casino. They told him they had a room upstairs and that they had Barbaro’s car which they were holding as ransom until the contract money was paid.

Witness L identified a sketch he drew that showed the location of the burned clothes and a photograph of the remains of the fire. He also identified surveillance photographs taken on 11 December 2013 and CCTV stills taken at Kellyville Plaza on 16 December 2013.

His Honour summarised the credibility issues affecting the evidence of Witness L as follows. 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. Witness L received a 60% discount for his plea of guilty and assistance including a 20% reduction for future assistance. This meant that a failure on his part to give evidence against the applicants could have resulted in a prosecution appeal with a possible increase in his sentence. His Honour found that “[h]e had a strong motive to give evidence favourable to the prosecution.”

His Honour noted that the evidence of the police tactics in obtaining Witness L’s assistance was criticised by the applicants. This involved the use of other informants (the brothers Witness G and Witness I) to persuade him to “roll over”. Senior Counsel for the applicants considered police tactics on this occasion were improper and highly questionable. His Honour made no finding on that issue.

The meeting between Witnesses G and I and Witness L was covertly recorded and the recording was made available to the defence who cross-examined Witness L about it.

It is not necessary to describe what occurred between Witnesses G and I on the one hand and Witness L on 21 August 2014. It is sufficient to record that Witnesses I and G painted a very favourable picture of what it was like in prison for an informant, as distinct from an ordinary inmate. They also advised Witness L that the police were not really interested in him but wanted evidence against the applicants. They encouraged him to say that he was forced to act as he did.

For obvious reasons that meeting between Witnesses G and I and Witness L was of concern to his Honour who said:

Witness C pleaded guilty and was sentenced as an accessory after the fact to the murder of the deceased. He drove Witness L to the scene but did not know the purpose of the journey until he heard five shots while waiting in the car.

Witness C joined the BFL Blacktown in 2013. He said that Farhad Qaumi was the leader of the group and that the BFL Blacktown was involved in drug dealing, 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 and in which a young girl was shot. Witness C gave evidence of an occasion when Farhad hit him with a dumbbell because he did not take Farhad’s phone call.

On the day of the killing of the deceased, Witness C missed several calls from Mumtaz Qaumi but was then called to a meeting at Kellyville. He was told “[i]t’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 Strathfield?” He was given an address in Jersey Road, Strathfield and Mumtaz told him to put the address into 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 the 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 pistol. Witness L got changed and they burned the clothes he was wearing. Witness C provided sketches of the area of the shooting and the area where the clothes were burnt. The last time he saw the pistol it was with Witness L.

Witness C identified his voice and that of Mumtaz Qaumi in the recording of some telephone calls intercepted by police on 16 December 2013.

Witness C was cross-examined by Senior Counsel about his involvement in supplying drugs. He admitted that he supplied drugs on behalf of the BFL. He agreed that 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 him handing over $2,000 in cash to Farhad Qaumi. Witness C said 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 in the same direction as his home in Windsor. Witness C 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 cross-examination about the burning of the clothes, who set the fire and the sequence of events.

Witness C 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 applicants asked him to drive Witness L to Strathfield but he denied that proposition. Witness C agreed that he was at Silverwater Gaol in 2014 at the same time as Witness L.

In cross-examination Witness C was reminded of answers he gave to police and he agreed that the applicants 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. When he was again pressed on the suggestion that the applicants did not tell him to drive Witness L to Strathfield, he maintained his position – “I say you’re wrong.”

His Honour summarised his assessment of Witness C and his evidence as follows:

Witness K was the brother of Witness J. He pleaded guilty to possession of an unauthorised firearm and participation in a criminal group. He received a reduction in his sentence of 40 per cent for his assistance including 10 per cent for future assistance (i.e. his promise to give evidence against the applicants).

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.

Witness K followed the four-wheel drive west onto the M4 motor way until they exited left, took another left turn, went down a dark street and turned right onto a gravelly road. He stopped behind the four-wheel drive. He observed that Farhad Qaumi went looking for something in the bushes. It was dark and the lights in the other car were left on.

By the time Witness K obtained a torch from his van, Farhad had found what he was looking for. He had a package and asked Witness K to put it in the van. All Witness K saw were layers of plastic bags but from its feel he assumed that 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, close to where Witness K lived in Auburn, and then to call him.

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 as the murder weapon. Witness K identified his voice on the telephone call recorded at 10:38pm on 3 January 2014. The person who said it was his “brother in law” was not Mumtaz Qaumi as was erroneously stated in the transcript. Witness K said he made that call shortly after being arrested.

In cross-examination, Witness K was asked whether he told Farhad on 3 January that he wanted a gun. He said that he did not and, when pressed, said that he was sure. He denied going under the house at Witness L’s home and retrieving the pistol. He did, however, agree that when he was arrested he gave a false account of where he had come from. He told police that he had just been paying an employee his wages, a person whose surname he could not remember. He agreed that he denied all knowledge of the weapon. He also agreed that when they left the area where Farhad had retrieved the package, the two cars did not travel in convoy.

His Honour summed up the evidence of Witness K as follows:

Witness A joined the BFL Blacktown in 2013. He gave general evidence about Farhad controlling the group by the exercise of violence but did not provide much detail. He said that members who did not obey directions from Farhad would face the consequences including violence.

He was aware of a number of shootings that took place in October and November of 2013 and decided that he wanted to have nothing more to do with the group. He was asked by Jamil Qaumi to hide a bag which contained two guns and drugs. Witness A dumped the bag in some bushland. A week or so later he went overseas. When he returned to Australia, he went to 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”.

His Honour’s summation of Witness A was as follows:

Witness E was not a member of the BFL and was not criminally concerned in the events giving rise to the charges against the applicants. However, he was sentenced for drug, firearms and other offences and received a 50 per cent reduction in his sentence partially, as a result of his assistance and offer to give evidence against the applicants. His Honour noted that like the other informant witness, his evidence must be treated with caution.

His Honour summarised the nature and effect of the evidence given by Witness A and Witness E and some of the other informant witnesses as follows:

The Crown case was that the applicants had accepted a “contract” offered by Elias to kill the deceased. There was no suggestion that the applicants knew the deceased, let alone that they had any reason to murder him. The Crown case was that the applicants told Witness L that they had taken out a contract for $200,000 from Barbaro and Elias to kill the deceased. They drove him to Strathfield and showed him an address. Witness L said that only he and the applicants were present during the trip. However, Witness M claimed that she was also present.

Witness M gave evidence that over the next three or so days, for several hours each day, she and Witness L were together and in effect staked out the deceased’s house. Witness L made no mention of the “staking out” nor of Witness M being present.

Witness L said that on the day of the murder, the applicants turned up at his house at Orchard Hills and told him that they were going to kill the deceased that day. Witness L claimed that he said that he did not want to do it to which Farhad Qaumi responded “[i]f you don’t do it, I’m going to shoot you and your daughter”. Farhad Qaumi gave him a revolver which he put in his house.

Later that day, there was a meeting near the club house. Witness C was asked by one of the applicants to drive Witness L to the address. Witness C drove Witness L to Orchard Hills where Witness L picked up the revolver. Witness C then drove Witness L to Strathfield where he shot the deceased. Witness C said that until he heard gunshots, he did not realise that a shooting was to take place. Witness C then drove Witness L home.

On 3 January 2013, Witness K received a phone call from Farhad Qaumi asking him to come outside. When he did so, Farhad Qaumi was there with two men, whom Witness K did not know, and a four-wheel drive. Farhad Qaumi instructed him to follow them in his van. They drove in convoy to some bushland off the M4. Farhad Qaumi went into the bushland and returned with a plastic bag. At Farhad Qaumi’s instruction, Witness K hid the plastic bag in a box in his van. The two vehicles then drove back to the city.

On the way, Witness K was stopped by police and his van searched. The police located the plastic bag which contained a pistol wrapped in plastic. Witness K was arrested. Later this pistol was identified as the murder weapon.

After Witness K had been arrested, Farhad Qaumi telephoned Witness J and said of Witness J’s brother “I think he got locked up” and “I think they found an At-Gay in his Ar-cay”. This was said to be Pig Latin for I think they found a “gat” (gun) in his car. Witness J said “[f]uck, why did you give it to him for bro”. Farhad Qaumi became angry and said “I haven’t given nothing to no-one, what the fuck are you talking about”.

The Crown submitted that the evidence established the guilt of the applicants beyond reasonable doubt. The Crown acknowledged the many 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. The Crown 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 applicants on the one hand, and Witness M, Witness L and Elias at relevant and important times. The Crown described the kebab shop transaction as a sham. The Crown noted the connections between the applicants and various participants in the murder and submitted that the events did not occur in a vacuum but in a context of those relations between the parties.

The defence case as set out in the final addresses of their counsel was as follows. 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. They submitted that to convict it was necessary to accept Witness L’s evidence beyond reasonable doubt. The evidence of Witness M and Witness L could be deconstructed so that the inconsistencies, deficiencies and deceitfulness of their conduct and evidence were highlighted to lead to the conclusion that the evidence could not safely be acted upon.

Emphasis was placed on the number of people with a motive to kill or harm the deceased and particular reliance was placed on the connection between Barbaro and Witness M. They submitted that there was clear evidence that Barbaro hated the deceased and that Witness M had access to guns through her brother-in-law. They submitted that Witness M was aware that Witness L was a “killer” through her involvement in the Hamzy shooting. They therefore submitted that the possibility that Witness L was engaged by Witness M on behalf of Barbaro was a real one and could not be excluded by the Crown. They submitted that far from being a sham, the transaction involving the sale of the kebab shop by Mumtaz Qaumi to Elias demonstrated an innocent association between the applicants 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 submitted that the BFL Blacktown, and the applicants themselves, were involved in a variety of activities and it was not correct to assume that all of them were related. They submitted that, as a result, it was wrong to infer that the meetings with Witness L and Elias on the days around the murder of the deceased were necessarily connected with each other or with Witness L’s act of murder. Alternatively, they accepted that the sale of the kebab shop was a sham, but challenged the proposition that it was a sham devised to disguise the payment of money for a contract killing. Counsel for Farhad Qaumi submitted that it was equally likely that the sale of the kebab shop was used as a method of money laundering.

Having reviewed the evidence and identified the problems with the informant evidence, his Honour proceeded to apply that evidence to the competing cases of the Crown and the applicants.

His Honour accepted that the deceased was involved in criminal activity. He determined that “whatever the precise nature of the business, it emerged clearly 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 organising or carrying out an assassination.” (Sentence judgment [238])

His Honour identified a number of business rivals and persons who may have wished to cause the deceased harm. His Honour concluded:

In relation to Barbaro his Honour concluded:

In relation to Barbaro, Elias, Witness M and the applicants his Honour made the following findings:

As can be seen from that summary by his Honour there was a much closer relationship between those persons and the applicants, both temporally and in the activities engaged in by them, than any of the other persons identified by defence counsel as having ill feeling towards the deceased.

As part of that analysis, his Honour looked at the relationship between Witness L, Witness C and Witness K and their relationship with Barbaro, Elias and Witness M.

In the case of Witness L, his Honour noted that he was a member of the BFL Blacktown and associated with the applicants who were the leaders of that group. He carried out the Hamzy shooting on their behalf seven weeks earlier. Witness L knew Witness M through their joint commission of the Hamzy murder, although there is little evidence of contact 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 applicants.

Witness C, who drove Witness L to and from the murder scene, knew the applicants through his membership of the BFL Blacktown. There is evidence of telephone and direct contact between Witness C and the applicants 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 evidence of a connection between them. There is no evidence suggesting that Witness C knew Elias, Barbaro or the deceased.

Witness K, who was arrested with the murder weapon, was a member of the BFL Blacktown. He knew Witness L, Witness C and other informant witnesses through that membership. Witness J was Witness K’s brother. 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, Elias and Barbaro or the deceased.

His Honour examined the evidence of motive. He found that the fact that there were established motives in other people created issues of proof for the Crown because of its obligation to establish the guilt of the applicants beyond reasonable doubt. His Honour found that the Crown had to eliminate the possibility that somebody other than the applicants committed the murder or contracted Witness L to execute the deceased.

The matter was complicated because the applicants in their cross-examination of the police investigators identified 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. His Honour noted that while the applicants relied on the denial made by Elias, little was said of the fact that Barbaro, too, staunchly denied his involvement when approached by the police.

The complication referred to above arose because of the relationship between Elias and Barbaro. Criticism was levelled at the Crown on the basis that its case had changed into a suggestion that there was a joint contract between Elias and Barbaro to contract the Qaumis to arrange the killing. As his Honour appreciated, there was no requirement that the Crown establish that Elias acted on his own or to identify who stood with, or behind, him. His Honour could see no unfairness in the Crown putting the proposition that Elias may not have acted alone. His Honour noted that the evidence of Barbaro’s involvement with Elias (and the applicants) was elicited through the evidence of Witness L and through surveillance and CCTV footage.

His Honour did accept, however, that if there were a reasonable doubt that Elias had contracted with the Qaumis, it would not be open in fairness, or as a matter of logic, to conclude that the applicants had contracted with someone else (for example, Barbaro). His Honour determined, however, that it was not necessary for the prosecution to establish who, if anybody, stood with Elias, or behind him, in arranging the murder. It was therefore important for the Crown to establish that Elias contracted with the Qaumis for them to arrange the killing of the deceased.

An important part of the Crown case that linked the applicants with Elias was the evidence relating to the sale of the kebab shop. The evidence showed that Mumtaz Qaumi registered the business name “Erina Kebab House” on 30 August 2013 and applied for that business name on 28 August. The evidence is silent as to when Mumtaz Qaumi acquired the business and how much he paid for it. Importantly, the business was advertised for sale through “Gumtree” three times in the latter part of 2013, although his Honour noted that the document evidencing this was not completely satisfactory. The document suggested that the advertisements were placed on 23 August, 28 September 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. On the final occasion there was a note that the price was reduced for a quick sale (even though the same price was sought on each occasion).

In an intercepted phone call on 4 December 2013, Elias spoke to Mumtaz Qaumi about paying a deposit for “the shop”. The applicants accepted that this was a reference to the kebab shop. The purchase price was discussed and Elias said:

In their notes of the interview with Elias in the Philippines, police were told that Elias “believed he paid approximately $100,000” for the kebab shop. 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 killing of the deceased. Witness L asserted that the applicants told him that they “took a contract for 200 grand”.

On 14 December 2013, Mumtaz Qaumi had a conversation with a third party (Fred) who made an inquiry about the shop. On 18 December 2013, Mumtaz Qaumi sent a text message to Fred and asked if he was “still interested in the kebab shop”.

On 19 – 20 December 2013, Elias made a bank transfer of $80,000 to Mumtaz Qaumi. On 20 December 2013, Elias discussed the possibility of a Turkish guy taking over the shop and franchising it.

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. This included Christian driving to the central coast to inspect the premises.

Taking all those matters together, the Crown submitted that this transaction was a sham and relied on the variation in the sale price and the timing of payments to connect the transaction to the deceased’s murder. The Crown placed reliance on the evidence of Witness M. The applicants on the other hand submitted that the sale was legitimate and that it was an intricate and ongoing transaction. They relied on the fact that Witness M was examined at the Crime Commission about the transaction and might have moulded her evidence accordingly. It was also put that it was most unusual for a contract for murder to be paid by way of a bank transfer.

Alternatively, during the conduct of the appeal, Senior Counsel for Farhad Qaumi conceded that the transaction was probably a sham, but its purpose was not to camouflage the payment of money for a contract killing, but rather to launder money which was being received by the applicants.

His Honour accepted that a good deal of the evidence establishing motive to kill the deceased and connections between the many persons referred to in the evidence was hearsay. This was because the number of people said to have a motive, or information about the killing, refused to make statements and were not called to give evidence. His Honour accepted that this “wall of silence” created difficulties for the Crown in proving the offence against the applicants.

Although his Honour took those matters into account, he was well aware of their limitations as evidence. Accordingly, his Honour treated the hearsay of denials of involvement with considerable scepticism. His Honour gave little weight to the evidence of people’s beliefs and opinions as to who might have been involved in the killing. His Honour noted that such statements were largely self-serving in that if a person interviewed was involved in the killing, that person was hardly likely to confess and was more likely to volunteer names of other persons.

His Honour identified the Elias interviews as the most substantial hearsay evidence in that what was adduced at trial was the notes of investigators who travelled to the Philippines to interview Elias. The interviews upon which the notes were based took place on 3 and 4 April 2014. His Honour noted that at that time the investigation was in its early stages and Elias was not yet a suspect. His Honour described the notes as covering a wide variety of subjects and containing assertions that were clearly inadmissible to prove the truth of what was being asserted. This was accepted in argument at trial. In those notes, some of what Elias was recorded as saying was contrary to other evidence in the proceedings. His Honour noted that this kind of inconsistency, and there was much of it, highlighted the caution with which he had to approach that evidence. His Honour gave a further example of information provided by Elias that was inconsistent with the case being run on behalf of the applicants, i.e. that Barbaro was also a close associate of them. His Honour noted that the evidence at trial, as elicited in cross-examination, was that Barbaro had only recently met the applicants.

The Elias notes also recorded him saying that Farhad Qaumi had “asked him straight out if he organised it”, i.e. the murder of the deceased. The notes recorded that Elias denied involvement and that he thought it was more likely someone from the BFL Bankstown. His Honour observed that the conversation as recorded was clearly inconsistent with Elias and the applicants being responsible for the murder. However, his Honour also noted that implicit in the question was the assumption that Elias did have a current motive to do harm to the deceased. This was a proposition contrary to the defence case that the dispute was six years old and the wronged party was the deceased not Elias. The Elias notes made other suggestions about who might have committed the murder. His Honour substantially disregarded those suggestions as uncorroborated hearsay.

The Elias notes did provide information about his dealings with the applicants. The applicants sought to rely upon this material. There were references to the purchase of a truck for $20,000 from Mumtaz Qaumi. Roads and Traffic Authority checks confirmed that that transaction took place on 23 September 2013. There was a reference 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. Elias told investigators that he believed the Qaumis were “stamping” him for money and that the situation was “a fucking nightmare”.

The notes record that he “believed 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. His Honour noted that there was no reference to purchasing the kebab shop for $190,000 with a $20,000 deposit. His Honour characterised the unsworn, untested statements made by Elias as a possible version of events and explanation of the dealings between him and the Qaumis. As can be seen, however, his Honour was well aware of the limitations of that evidence.

When investigators put to Elias what was shown by the telephone intercepts and CCTV footage, which was suggestive of a friendship between him and the Qaumis, he rejected that proposition out of hand.

In reviewing the evidence, his Honour paid particular attention to the events of 11 December 2013. His Honour noted that those events occurred five days before the murder. They were important for the inferences that might be drawn from them which were subject to significant debate at trial.

His Honour had already set out in summary form some of the evidence of Witness M and Witness L concerning the attempt to identify the house of the deceased and the subsequent drive past that house. His Honour noted that 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 specify the date and could not remember whether Witness M was even present. His Honour concluded:

His Honour regarded as proved that Witness M, Witness L and the applicants were at or near Coleman Park in Lidcombe between 7:20pm and 7:30pm on that date. His Honour accepted that the evidence was not clear as to where they were before that time. He found the records of Witness M’s telephone usage (and the cell tower through which her phone connected) did not indicate that she was in Strathfield and that there was no record covering the period 7:06pm (when her phone connected through a tower at Regents Park) and 7:20pm (when her phone was near Lidcombe). His Honour noted that there were two calls (at 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. On the basis of that material, his Honour concluded:

His Honour further concluded that the next thing that happened was that Mumtaz Qaumi called Elias (at 7:25pm). Mumtaz wanted to meet Elias but said “I can’t talk on the thing”. They arranged to meet at “the same place as last time” (i.e. the Shark Bar in Liverpool Street, Sydney).

The meeting was observed by surveillance police and captured on CCTV outside the Shark Bar. The meeting was brief. Nevertheless, his Honour was satisfied that Witness L was observed seated in the rear of Farhad Qaumi’s car. This was not disputed. His Honour found that evidence supported 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. His Honour accepted that what Witness M was doing during that time was not clear, although the cell tower records suggested that she returned home to Epping.

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 was far from complete. For example, the arrival of Witness M’s Mazda was not recorded. All that was 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.

Once again, this gap in the surveillance evidence gave 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 Farhad Qaumi’s Mercedes remained parked. There was nothing in Witness M’s telephone records that suggested that she went to Strathfield at this time although her evidence was that Farhad told her not to take her telephone. The cell tower evidence suggested that Witness M’s mobile phone remained in the Five Dock area. However, the records gave rise to an inference that she was not with her phone at that time. There were only two attempted calls within that period (at 9:46 and 9:47pm) and in each case the calling party was Omar El Cheikh. In another document produced by the Crime Commission and tendered by Mumtaz Qaumi, both those calls resulted in “no audio”. In a call monitored at 10:27pm El Cheikh told Witness M that he “messaged her an hour ago and is not happy”.

His Honour’s conclusion on this evidence was:

His Honour next reviewed the evidence concerning the events of 16 December 2013. His Honour noted that there was an exchange of text messages between Mumtaz Qaumi and 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 that he was in Kellyville but that they would meet at Rouse Hill or Blacktown. There was no doubt that surveillance evidence and CCTV stills from Kellyville Plaza placed both applicants along with Witness L and other BFL Blacktown members at Kellyville Plaza from 6:34pm until 7:15pm.

His Honour noted that there were 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 7:30pm to 8:00pm. His Honour accepted that a telephone intercept at 7:53pm provided evidence of the applicants arranging to meet Witness C in Blacktown.

His Honour accepted that there was no evidence, capable of corroborating the evidence of Witness L and Witness C, as to what the applicants said to them on the day of the murder. The prosecution case was that the applicants instructed Witness L to kill the deceased 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 going to be a shooting. His Honour noted that in the background of a telephone call made by Mumtaz Qaumi at 5:54pm, Farhad Qaumi was heard to say “[d]on’t tell them what’s going on, but.”

His Honour noted that the defence case was 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 according to their theory, was merely asked to drive Witness L home to Orchard Hills. His Honour noted, however, that the Crown had submitted that the corollary of this proposition was that Witness L used Witness C as the driver in the murder as a matter of convenience and good fortune.

His Honour’s conclusion was:

In the period following the murder, the most significant incident was the finding of the murder weapon by the police. His Honour reviewed the evidence on that issue as follows:

Having reviewed the evidence as set out above, his Honour gave his findings and the reasoning behind them as follows:

His Honour accepted the submission of Senior Counsel for Farhad Qaumi that the evidence of factual violence within the Bankstown BFL was not extensive. His Honour did accept the evidence of those members who said that violence was employed from time to time when members did not follow directions. The critical piece of evidence which his Honour accepted was the evidence of Witness J that Farhad had told him that he put fear in the hearts of the members so that they would obey him.

Despite that finding, his Honour concluded that this evidence was of very little moment in the overall scheme of the trial. Specifically, his Honour concluded that he did not need to be satisfied that Witness L acted out of fear or was threatened. Because Witness L’s evidence of the threat to kill him and his daughter was not corroborated, his Honour declined to act upon it. His Honour did accept that Witness L was offered part of the proceeds of the crime because the evidence of Witness L on that point was corroborated to some extent by Witness M and fitted with his attempts to meet with the applicants in the days following the murder.

His Honour accepted that the evidence that matched the DNA found on one of the internal bags in the package containing the pistol with that of Witness L’s de facto partner was capable of undermining Witness L’s credibility. On the account of Witness L, the plastic bags were given to him by the applicants when they were at the location where the pistol was hidden. In other words, the bags were not in his house and there was no way that his partner could have touched them.

His Honour found that there were a number of possible explanations for this. One was that Witness L was lying and that he packaged the pistol using bags from his house. Another was that there was secondary transfer of the DNA as described by Mr Bruce. His Honour accepted that this was evidence that might go to the credibility of Witness L. It was 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. His Honour concluded that the location of the pistol during that period was not a matter about which he needed to be satisfied to any particular standard. His Honour did not consider that this evidence logically impacted on the credibility of Witness K and his evidence of where the pistol was on 3 January 2014. His Honour concluded that choosing between the possible explanations for the DNA evidence was a matter of speculation.

His Honour was satisfied that Farhad Qaumi deliberately denied knowledge of the weapon and the circumstances in which Witness K was arrested in his conversations with Witness J on 4 January 2014. His Honour was not prepared to use that evidence as demonstrating a consciousness of guilt in relation to the deceased’s murder. On the defence case, he was providing the weapon to Witness K at the request of Witness K. His Honour noted that it was not disputed that he was present when the pistol was picked up. The dispute was whether it was picked up from Witness L’s house or from the hiding spot nearby.

What concerned his Honour was that if Farhad Qaumi’s conduct arose from a consciousness of guilt, it might have arisen in relation to a crime different from that of the Antoun murder, e.g. his involvement in facilitating the transfer of the weapon from Witness L to Witness K. Nevertheless, the evidence of the movement of the pistol remained relevant because it provided a connection between Farhad and the murder weapon.

With those preliminary observations, his Honour set out his conclusions as follows:

The applicants mounted a considerable attack upon Witness M’s credibility. There is an obvious inconsistency between her and Witness L as to what happened on the night of 11 December 2013. His Honour was well aware of this inconsistency and its overall effect on the credibility of Witness M.

The events of that night are important because they bring together all the major players in relation to the murder. The applicants were present, apparently making two journeys to Strathfield. Witness L was present for both of those journeys. In between those journeys, there was a meeting with Elias the purpose of which was to identify the address of the deceased.

The resolution of this apparent conflict is relatively simple and in accordance with the findings of his Honour. Witness L did not recollect the presence of Witness M on 11 December 2013 nor travelling in her car. His evidence of a search for the deceased’s house after leaving Five Dock was accepted. That part of Witness M’s evidence concerning a trip from Five Dock on 11 December 2013 was also accepted. That is not surprising because they were describing the same event. In relation to that night, it is only Witness M’s account of the surveillance undertaken with Witness L on subsequent nights which is contradicted by the telephone records and which was unreliable and not accepted by his Honour.

Witness L was accurate about not going back to Strathfield after 11 December and before 16 December 2013. This is borne out by the telephone records. Whereas it is inconceivable that Witness L forgot a three day stake out of the deceased’s home, it is more likely that he had forgotten the presence of Witness M on 11 December 2013, particularly if she was driving and his focus was on the other persons in the car and memorising the location of the deceased’s home. It is not without significance that Witness L gave his first account of the events surrounding the murder 10 months later. It was accordingly well open to his Honour to make the findings which he did.

The differences between the evidence of Witness L and Witness M concerning the period between 11 and 16 December 2013 do not lead to a conclusion that Witness L and Witness M had been involved in surveillance of the deceased before 11 December 2013 at the instigation of someone other than the applicants. There was no evidence of that nor is it feasible that both Witness M and Witness L were mistaken or lying about what happened on that night. The location of the cars, the evidence of the surveillance police and the telephone records fit neatly with his Honour’s findings, albeit that these major players in the murder were only under observation for part of the time. Nevertheless, it was reasonably open to his Honour to draw the inferences which he did based on the facts, which he found were clearly established. It strains credulity to accept that the coming together of these key personae was accidental, or for a purpose (unascertained) which was not related to the murder.

When looking at the matters relied upon by his Honour as establishing beyond reasonable doubt the guilt of the applicants, the concession in the hearing of the appeal by Senior Counsel for Farhad Qaumi needs to be kept in mind. Early in his submissions, he said:

If as I have found it was open to his Honour to make the findings which he did concerning 11 December 2013, they provide a powerful anchor for his ultimate findings of guilt.

According to Witness L, the applicants came to his house and told him that they were going to “do” the deceased that day. Witness L gave evidence that he did not want to and told them that they were under surveillance. According to Witness L, he was threatened by the applicants that he and his daughter would be shot if he did not follow their direction to shoot the deceased.

The fact that the applicants met with Witness L on that day is substantially corroborated by Witness C, albeit at a later point in time. The self-serving statement by Witness L as to his unwillingness to go through with the killing and the subsequent threats made to him was rejected by his Honour. His Honour did so because that evidence was uncorroborated and because of the suggestions made to Witness L by Witnesses I and G when they were persuading him to give evidence on behalf of the prosecution.

Significantly, there was no contact between Witness L and Witness M on 16 December 2013. There is in fact little evidence of any direct contact between Witness M and Witness L at all (11 December seems to be the only occasion). In those circumstances, it was well open to his Honour to reject the proposition that it was Witness M who had procured Witness L to kill the deceased.

According to Witness L the applicants gave him the pistol while they were in Farhad Qaumi’s car. It was wrapped in a tea towel. Witness L said he got changed and left the pistol in his house.

This evidence was challenged on the basis that the applicants would not have transported a pistol themselves for fear of being stopped by the police. The applicants submitted that common sense would have dictated a safer method of getting a firearm to Witness L. The applicants also submitted that the evidence from Witness L as to how he stored the pistol was questionable, i.e. that he placed the pistol under a bag containing clothes that weighed about 5 or 6kgs and locked the door to that room. The applicants submitted that this was a risky course of action because of the presence of his wife and three year old child in the house.

The answer to the first criticism is fairly obvious. People do not always act with common sense. Moreover, the actions of the applicants on that afternoon or evening were not particularly well planned. The lack of any firm arrangements for the transportation of Witness L to the deceased’s home is a good example. The applicants clearly had considerable difficulty in obtaining a driver and motor vehicle to fulfil that task. It is not unrealistic to suppose that they may have confronted a similar difficulty in identifying someone to transport the pistol to Witness L. It should also be remembered that the events of 3 January 2014 which involved Witness K being given the pistol support a clear connection between Farhad Qaumi and the pistol.

The challenge to Witness L’s evidence of the storage of the weapon is modest at best. Locking the door and placing the pistol under 5 or 6kgs of clothes would seem adequate, at least in the short term, to prevent access from a 3 year old child. In relation to his wife finding the pistol, given his background and the evidence that he had stored weapons in his home from time to time in the past, it is not far fetched to suggest that coming upon a pistol would not have been a particularly unusual event for Witness L’s partner.

In any event, what seems clear about the afternoon or early evening of 16 December 2013 is an element of disorganisation on the part of the applicants by their lack of preparation in not having transport readily available for Witness L and the difficulty which they experienced in obtaining a driver and vehicle for him. The number of telephone calls made to other persons, including Witness C, on that afternoon or early evening provide adequate support for that proposition. Significantly, after a number of missed calls, Witness C could not be contacted until 7:12pm.

It follows that it was well open to his Honour to accept the evidence of Witness L on these issues and in due course be satisfied beyond reasonable doubt that it was the applicants who gave him the direction to kill the deceased.

The legitimacy or otherwise of the sale of Mumtaz Qaumi’s kebab shop to Elias was important. On this issue, the applicants were divided. Senior Counsel for Mumtaz Qaumi submitted that the transaction was genuine and relied upon the incongruity of paying for a contract killing by means of cheques. Senior Counsel for Farhad Qaumi accepted the Crown’s proposition that the sale was probably a sham but submitted that there was insufficient evidence to link the transfer of funds to a contract killing. He submitted that an inference that was equally open was that the whole transaction was a money laundering exercise.

There was compelling evidence that the sale of the kebab shop was a sham. The original sale price of $25,000 advertised on the Gumtree site was inconsistent with the amounts of money referred to in discussions about the transaction, i.e. between $100,000 and $190,000. It is also not without significance that at about this time the Crime Commission had shown an interest in the financial affairs of the applicants and had confiscated $100,000. The applicants may well have decided that in future they needed some paperwork to explain their various financial transactions. There is also the difficulty that when one has regard to the earnings of the kebab shop, a purchase price of between $100,000 and $190,000 was considerably in excess of the value of the business.

The submission that an equally compelling inference was that this was nothing more than a money laundering exercise fails to have regard to the prominent position of Elias in the transaction. It also fails to have adequate regard to the timing of the various payments referred to in emails and other documents. This transaction and other business dealings between the applicants and Elias, including his provision of a somewhat “dodgy” document to the Crime Commission to explain the source of the $100,000 which had been confiscated, indicate a very close relationship between him and the applicants at this time. It is against this background that their contact with Elias on the evening of 11 December of 2013 is so important.

The context of an intended reconnaissance of the deceased’s house, which was interrupted by contact with Elias and a return to the city, places Elias firmly within the planning process for the killing. This is particularly so when having met with Elias, the reconnaissance was resumed and the house of the deceased identified. The events of 11 December 2013 also strengthen the Crown case that not only was the sale of the kebab shop a sham, but it was a sham designed to transfer a substantial sum of money from Elias to the applicants. The fact that the payment was for the killing of the deceased provides an explanation for the somewhat elaborate documentation which accompanied what would normally be a straight forward transaction, i.e. the sale of business with a rather modest return.

It was the evidence of Witness C that he was told by the applicants to take Witness L to an address in Jersey Street, Strathfield. When that was challenged in cross-examination and it was suggested to him that the applicants had directed him to drive Witness L to Orchard Hills, he consistently denied that proposition. Witness C said that it was only after Witness L got into the car that he asked Witness C to drive him to Orchard Hills. If, as his Honour found, Witness C was telling the truth then there was no other explanation for the applicants telling Witness C to drive Witness L to Jersey Street, Strathfield other than to enable Witness L to kill the deceased.

It does not necessarily follow that because the applicants knew that Witness L had left the pistol at his home, they would have directed Witness C to drive to Orchard Hills first. The focus of the applicants was to have Witness L transported to Strathfield to do the killing. They may well have not concerned themselves with the detail that Witness L had left the pistol at his home. In any event, Witness C was accepted by his Honour as a witness of truth which his Honour was entitled to do. There was no glaring inconsistency in the evidence which he gave. On the contrary, his compliance with the directions of the applicants was consistent with the position of power which they held in the BFL Blacktown. Importantly, it was not suggested to Witness C that he did not drive Witness L to Strathfield and back to his home at Orchard Hills.

Although the applicants lived on the Central Coast and Orchard Hills was out of the way for them, they had previously driven Witness L home on the night of 11 December 2013. When they found that Witness C was available with a vehicle on 16 December, they did not wait for him in Kellyville but drove to meet him at Blacktown. From those simple facts it can be inferred that the applicants were very keen to involve another vehicle in the transportation of Witness L. This is against a background of them having waited in Kellyville from about 6.35pm where they made a substantial number of phone calls in order to obtain transport for Witness L. They did not actually meet with Witness C until 8:03pm at Blacktown. If the sole purpose of the phone calls had been to arrange for someone to drive Witness L to Orchard Hills, there was ample time for the applicants to have done so themselves and still driven to the Central Coast.

One of the challenges to the evidence of Witness L was that he was not telling the truth when he described how the murder weapon came into his possession. It was put to him that he had possession of the weapon at all times and that the DNA of his partner on one of the plastic bags that was wrapped around the pistol supported this proposition. If that were the fact, it is difficult to reconcile it with what happened between Farhad Qaumi and Witness K on 3 January 2014.

Witness K, whom his Honour accepted, said that he was directed to follow Farhad Qaumi in his work van. At a location (which he could not better identify) but which he described as a poorly lit street with few houses, he observed Farhad Qaumi go into nearby bush and after some time emerge with a bag which he told Witness K to place in his car. His Honour found that this evidence relating to the movement of the pistol on that date was relevant to proving a connection between Farhad Qaumi and the murder weapon. This evidence supported the evidence of Witness L as to how he acquired the pistol and established a clear connection between it and Farhad Qaumi. That Farhad Qaumi was well aware that the object which he gave to Witness K was the murder weapon emerges from the conversation that he had with Witness J shortly after Witness K’s apprehension. The coded language then used (despite the subsequent conversations) makes it clear that as of 3 January 2014 Farhad Qaumi knew of the location of the murder weapon and knew why Witness K had been stopped and arrested.

Although Mumtaz Qaumi was not involved in that incident, since he and Farhad Qaumi seemed to work closely together, one can infer that he was probably aware of where the pistol was on 3 January 2014 and of Farhad’s intentions on that night.

Motive was an important part of the defence case. The applicants submitted that they had no obvious motive to kill the deceased and identified in the cross-examination of police witnesses, a number of other people including Barbaro who did have a motive. Part of the defence case was that the Crown had failed to exclude all of these persons, and in particular Barbaro, from being involved in the murder.

It is not correct to say that no motive for the killing of the deceased was raised in the Crown case. The Crown position was that this was a contract killing and that the applicants became involved for monetary gain. It should also be noted that there were some issues in the trial which were not disputed. There was no issue that Witness L was the person who fired the pistol which killed the deceased. There was no issue that Witness C drove Witness L to and from the murder site. It also seems to have been accepted that, based on the tendency evidence, Witness L was the person of choice for the applicants when they wanted to shoot someone. On that issue, the Crown relied upon the Hamzy killing in October 2013 with which Witness L was directly involved. The Crown qualified that submission by reference to the fact that the circumstances leading to the death of Hamzy involved issues of self-defence and were quite different from the facts on this occasion.

It was also accepted that Witness L did not act alone. It was accepted at trial that he did not know the deceased and had no animus against him. It follows that if Witness L did not know the deceased and had no motive to kill him, he must have been directed by someone else to do so. Except for Witness M, and to a lesser extent Barbaro, there was no connection between any of the other nominated persons who had a motive for killing the deceased and Witness L. There was nothing before the Court to link Witness L with any of those persons including Barbaro. As already discussed, Witness L’s only contact with Witness M was on 11 December 2013. In contrast, when the motives of other persons are considered, it needs to be kept in mind that Witness L was a member of a gang whose leaders were the applicants and that he had been used by them before in the Hamzy killing. There was a clear and obvious connection between them.

The applicants’ primary submissions were that there was no evidence independent of Witness L and Witness M which unequivocally proved that the applicants had directed that the deceased be killed. That submission ignores the findings made by the trial judge which were well open to him on the evidence. Having made my own independent assessment of the whole of the evidence, and taking into account those findings, it was open to the trial judge to find beyond reasonable doubt that the applicants were guilty of the charges brought against them.

Accordingly, the orders which I propose in each appeal are:

WILSON J: I agree with Hoeben CJ at CL and the orders his Honour proposes.