R v Qaumi & Ors (No 45)

1. [1]

   On Wednesday 29 June 2016, Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi (“the three accused”) each made an application that I make an order that the co-accused Mohammed KalaI be tried separately. The application was made on the 56th day of the trial and continued into Thursday 30 June 2016 (the 57th day). The application was refused. As a result of the unusual circumstances in which the application arose, I made some brief comments before announcing my decision. However, because the jury had been left waiting for more than a day with no indication of what was happening, I indicated that I would provide reasons for the decision afterwards. These are my reasons.

Background to the application and the circumstances in which it was made

1. [2]

   The application was raised a short time after I was informed, at the commencement of the 56thday of the trial, that a “serious procedural matter” had arisen and that the three accused had withdrawn the instructions of their legal representatives. [1] Counsel sought and was granted time to consult with their erstwhile clients to determine whether the situation could be salvaged. Counsel saw me briefly in chambers and confirmed that more time was needed. Around an hour later I was advised that counsel’s instructions had been withdrawn but that each was now instructed for the limited purpose of making an application that the accused Mohammed Kalal be tried separately. Senior Counsel advised me, with appropriate circumspection, that if the separate trial application was refused the instructions of the lawyers for the three accused would be terminated. [2] I made orders that the jury trial be adjourned and that the jury be permitted to disperse. [3]

2. [3]

   The application to separate the trial of Mr Kalal arose out of his attempt to establish evidence supporting a defence of duress and as a result of his counsel’s cross-examination of various witnesses, which comes last due to the order of the indictment. It is submitted that the cross-examination has created, and will continue to create, incurable unfairness to the three accused. It is submitted that the only cure for that unfairness is an order for separation of the trials. It was stressed that there is no application for a discharge of the jury and submitted that any unfairness that has arisen to this point of the trial can be cured by direction. [4]

3. [4]

   When pre-trial hearings commenced in November 2015, there were eight accused charged with thirty-six offences. A variety of applications were made for severance of certain counts and separation of the trials of some of the accused. Orders were made on 3 February 2016 resulting in a number of counts being severed from the indictment and two of the accused being (effectively) remitted to stand trial in the District Court: R v Qaumi & Ors (No 3) (Severance and Separate Trials) [2016] NSWSC 15. Subsequently, shortly before the trial proper commenced, a third accused person (now known as Witness M) pleaded guilty. As a consequence, five accused were arraigned on twenty-four charges and a jury of 15 was empanelled on 4 April 2016.

4. [5]

   While Mr Kalal (then represented by Senior Counsel who subsequently withdrew) sought an order for a separate trial, that application was not based on his proposed defence of duress. For reasons that have never been explained, a defence case statement filed pursuant to pre-trial case management orders made no reference to a possible defence of duress. At the time of the original applications, there was no application by the three accused for a separate trial of Mr Kalal.

5. [6]

   Shortly before the trial commenced, counsel who now appears for Mr Kalal indicated that there was to be a defence of duress. [5] There was no application for separation of his trial and no application to postpone the commencement of the trial. Shortly after the jury trial commenced, an evidentiary issue was ventilated in which Mr Kalal sought to elicit evidence that the accused Farhad Qaumi had boasted of having successfully defended (or otherwise “beaten”) three previous murder charges: R v Qaumi & Ors (No 24) NSWSC 505. Mr Kalal did not apply for a separate trial although it was suggested that I might separate the trials of my own motion: R v Qaumi & Ors (No 24) at [71]-[81]. An application for a separate trial was postulated by the three accused but only if the controversial evidence was admitted over their objection. Because the evidence was excluded, that application did not arise: R v Qaumi & Ors (No 24) at [35], [70]-[81].

6. [7]

   The trial proceeded into its thirteenth week. In cross-examining some of the witnesses, and in particular four of the informant or “roll-over” witnesses, counsel for Mr Kalal asked questions calculated to elicit evidence capable of discharging the evidentiary onus grounding a defence of duress. This included evidence concerning the leadership structure of the BFL Blacktown including that Farhad Qaumi was the leader (or “general”), that Mumtaz Qaumi was second in charge (or “commander”) and that, at some stage, Jamil Qaumi took over as third in charge (or “enforcer”). It also emphasised incidents of violence within the club, threats of violence and boasts of violence as well as specific threats allegedly directed to Mr Kalal.

7. [8]

   It was in that context that the three accused terminated their lawyer’s instructions and then made the application that Mr Kalal’s trial be separated. There appeared to be no logical connection between the dismissal of their lawyers and the application for Mr Kalal’s trial to be separated. In announcing the decision refusing the application I made the following observation:

8. [9]

   Those observations should be incorporated into these reasons.

Legal principles and the basis of the current application

1. [10]

   In R v Qaumi & Ors (No 3) I set out a number of the relevant principles. In R v Qaumi & Ors (No 24) I referred at [80] to two cases supporting the proposition that “in some cases, the fact that one accused may raise duress as an issue will result in separate trials being granted to the person against whom the allegation of duress is made”: R v Singh (Supreme Court (NSW), Fullerton J, 10 November 2011, unrep) and R v CE [2005] NSWCCA 326. Reliance has been placed on those cases in support of the current application.

2. [11]

   In many cases, a consideration of an application for separate trial involves a prospective or predictive evaluation of the risk that the trial will be unfair: see the comments of Fullerton J in R v Singh at [39] and the reasoning of the Court of Criminal Appeal in R v CE. This is to be contrasted with the task often undertaken by an appeal court in determining, in retrospect, whether a positive injustice resulted from the trials being conducted together: see, for example, R v Pham [2004] NSWCCA 190 and Madubuko v R [2011] NSWCCA 135.

3. [12]

   The present case is somewhat unusual in that the decision (not to separate) was based on both a retrospective evaluation of what has happened in the trial to this point together with a prospective evaluation of what is likely to occur or continue to occur over the coming weeks of the trial. The predictive evaluation could be undertaken with a little more certainty because the case of each of the accused was known and the manner in which Mr Kalal’s case is to be conducted was clear. Counsel for the three accused relied on the cumulative unfairness to this point and submitted that it can be predicted safely that the accumulation of the matters upon which they rely will continue as the trial proceeds.

4. [13]

   Counsel relied on the fact that Mr Clarke cross-examines each of the witnesses last. He does so armed with a series of statements or interviews from which he is able to lead material that may go to support the defence of duress but is inimical to the interests of the three accused. It is submitted that the effect is that the accused are confronted with “two prosecutors”-. It was also submitted that the witnesses are “friendly” witnesses who share an interest with Mr Kalal. That interest is to blame the Qaumi brothers for their involvement in the crimes. In circumstances where the Qaumi brothers have already exercised their right to cross-examine, it was submitted that the impact is devastating and unfair. It was submitted that Mr Clarke’s cross-examination was the last thing that the jury heard from each of the witnesses.

5. [14]

   Counsel for Jamil Qaumi and Farhad Qaumi each provided a helpful schedule of the evidence elicited by Mr Clarke upon which they rely. [7] The Crown responded with a document of its own. [8] These documents demonstrated that a good deal of the evidence emerged for the first time in Mr Clarke’s cross-examination. In some instances the subject matter had been touched upon in the cross-examination by the other accused. On some (relatively rare) occasions the material was not contained in the witness’s police statements and interviews. There have been instances where Mr Clarke has managed to get one witness to agree with a proposition that he extracted from another witness’s evidence or statement (although not by putting that statement in the witness’s hands). On other occasions, the material was contained in the witness’s own statements but was not elicited by the Crown Prosecutor in the course of the evidence in chief. In circumstances where the Crown is unable to elicit the evidence by non-leading questions, Mr Clarke is able to adduce it by putting to the witness that this is what he said to police in his statements. As I perceive the submission, this has the effect of denying (or at least reducing) the effectiveness of the cross-examination on behalf of the three accused.

6. [15]

   A further submission was that the accused have to make choices as to whether to give evidence in the trial. Judging from the conduct of Mr Kalal’s case, and the examination of the Crown witnesses, they expect to be subject to cross-examination not only by the Crown Prosecutor but also by counsel for the co-accused. This may impact on their decision as to whether to give evidence in their own defence. I understand the submission to be that this interferes with the adversarial process of the trial, being a contest between the prosecution and the individual accused

The evidence elicited is admissible in any event

1. [16]

   One factor distinguishing the present case from many where separate trials are sought is that the evidence being elicited in support of Mr Kalal’s case is admissible in the trial in any event: contra, for example, R v Pham where evidence of co-accused’s recorded interview had to be evaluated in the context of the case of one accused but was not admissible in (but prejudicial to) the case of the co-accused. Similarly, in R v CE, the co-accused proposed to elicit evidence of the applicant’s criminal history and reputation for violence and the Crown “candidly stated [that] it is no part of the prosecution case to seek to adduce the highly prejudicial evidence”. [9]

2. [17]

   The evidence of specific threats allegedly made to Mr Kalal prior to the Zakaria and Chokolatta Café shootings is admissible in the Crown case against one or more of the three accused. It forms part of the case that each of them solicited the murder of Masood Zakaria (count 7) and Abdul Abu-Mahmoud (count 10). It is also part of the basis upon which the Crown contends that each was involved in a joint criminal enterprise to commit those shootings.

3. [18]

   The evidence of violence, and threats and boasts of violence, within the group is also being adduced as part of the Crown case. There is no contest that it is relevant and most of the limited objections taken to parts of the evidence have been resolved in favour of the accused. The evidence is admitted on at least two bases. First, the Crown says that it explains the conduct of some of its witnesses in following orders and obeying directions given by Farhad Qaumi and his brothers. Secondly, some of the incidents of violence and threats of violence form part of the prosecution case that the Brothers For Life at Bankstown was a criminal group for the purposes of the charge under s 93T of the Crimes Act 1900 (NSW). There may be other bases for its admission and there may be an outstanding issue as to whether some of the evidence might be admissible as tendency evidence. That issue was left to be determined in the course of the trial.

4. [19]

   On whatever basis it goes to the jury, the evidence is admissible in the prosecution case against the accused. No objection was taken to the body of evidence that was subject to agreement between the accused and the Crown following extensive discussions between the parties in the course of the pre-trial hearings. With the exception of the attempt to adduce evidence that Farhad Qaumi boasted about the three previous homicide charges, counsel for Mr Kalal has confined his cross-examination to the subject matters and incidents agreed between the parties and reduced to writing in Ex VD EE and VD FF and further clarified in the course of argument. [10] The relevant areas were set out in R v Qaumi & Ors (No 6) [2016] NSWSC 115 at [13] and R v Qaumi & Ors (No 24) at [16].

Cut-throat defences

1. [20]

   There is no definitive rule that cases involving so called “cut throat” defences – that is, where each accused attempts to exculpate themselves by blaming the other – should result in joint trials: see, for example, R v Farrell & Cotton (1990) 48 A Crim R 311 at 314 and R v Ignjatic (1993) 68 A Crim R 333 at 339. However, since the High Court’s (majority) decision in Webb & Hay v The Queen [1994] HCA 30; 181 CLR 41 it has generally been accepted that such cases are most appropriately tried together. It is thought to be appropriate that the same jury hears the evidence relevant to the factual dispute between two or more accused persons. It is also said to reduce the possibility of inconsistent verdicts. (I note the strong dissent by Deane J in Webb & Hay v The Queen but the majority decision has been consistently applied in New South Wales and is binding on this Court).

2. [21]

   While the present case does not involve cut-throat defences in a strict sense, there are important factual disputes between Mr Kalal and the three accused. This has been apparent since counsel for each of the accused opened the trial. The threats upon which Mr Kalal relies in asserting duress are denied by the Qaumi brothers. The analogy with cases where each accused seeks to blame the other is strong. This is not a case like R v Singh where one accused is conducting a case of duress while the other is asserting that they have no knowledge of the events giving rise to the death of the deceased. [11] The dispute in the present case is whether those who carried out the Zakaria and Chokolatta Café shootings were doing so at the behest of Farhad, Mumtaz and/or Jamil Qaumi or whether those were enterprises undertaken of their own volition, at the request of another person (for example, Witness I) or, insofar as the Qaumis were involved at all, the shootings were meant to be a “warning” rather than an attempt to kill particular targets nominated in the indictment. [12]

3. [22]

   The fact that this factual dispute exists between the parties is a factor militating in favour of, but not determinative of, a joint trial where the same jury is seized of all of the relevant evidence and is in a position to make factual findings.

4. [23]

   While this is not a case where different juries might return seemingly inconsistent verdicts, it is a case where different juries might come to inconsistent factual findings. Having said that, it must be remembered that the same jury would be entitled to have a reasonable doubt as to whether the Crown has disproved duress beyond a reasonable doubt in Mr Kalal’s case and also entertain a doubt as to whether the Crown has established (for example) Jamil Qaumi’s guilt in relation to those charges in which he is alleged to have incited Mr Kalal to commit the offences. That is because the onus is placed firmly on the prosecution in each instance. The jury will be directed (and has already been directed) that it must consider each count against each accused separately and that a finding of guilty or not guilty in relation to one count against a particular accused must not be considered as leading to a particular result in relation to a count against one of the other accused.

The decision to give evidence

1. [24]

   I am unable to accept the submission that the fact that the three accused might (or almost certainly will) be cross-examined by Mr Clarke interferes in any relevant way with their choice as to whether to give evidence in the trial. Such a consideration is present in every case where two co-accused stand trial together and run defences that are not completely ad idem. It is a particularly potent factor in cases of cut-throat defences and yet the prevailing view is that such cases generally are to be conducted together.

2. [25]

   I note in passing that s 20 of the Evidence Act 1995 (NSW) allows more expansive comment to be made by a co-accused on an accused’s failure to give evidence.

3. [26]

   Finally, while a great deal has been made of the effectiveness of Mr Clarke’s cross-examination, his cross-examination is far less prolonged, aggressive and persistent than those of the other counsel in the case.

Order of cross-examination

1. [27]

   Significant reliance was placed on the order of cross-examination and on the fact that Mr Clarke’s cross-examination was the last thing that the jury heard in the evidence of each witness. I have previously commented on the forensic disadvantages and advantages of the order of the indictment: R v Qaumi & Ors (No 32) [2016] NSWSC 675 at [8], R v Qaumi & Ors (No 39) [2016] NSWSC 797 at [5]-[7], R v Qaumi & Ors (No 43) [2016] NSWSC 889. I am not persuaded that the order of cross-examination creates any relevant unfairness, prejudice or embarrassment to the three accused.

2. [28]

   First, as I have previously observed, the order (and consequent or perceived forensic advantage or disadvantage) will be reversed in addresses.

3. [29]

   Secondly, if the material elicited takes counsel by surprise or if the circumstances are such that it is otherwise appropriate, counsel can seek the opportunity to ask further questions in cross-examination. Such applications were granted in the case of Witness G and Witness I: R v Qaumi & Ors (No 32) and R v Qaumi & Ors (No 43). It is true that counsel was limited and not permitted to embark on a further lengthy interrogation of the witnesses. However, the earlier attack on the credibility of the witnesses was lengthy and sustained. In the case of Witness I, the few brief questions asked on behalf of Jamil Qaumi were powerful and effective and it was established that the evidence elicited by the leading cross-examination on behalf of Mr Kalal was not contained in the witness’s statements and interviews in spite of the fact that the subject matter was clearly canvassed by the police: R v Qaumi & Ors (No 43) at [11].

4. [30]

   Thirdly, at the conclusion of the evidence of each of the informant witnesses, the jury is provided with a strong warning under s 165 of the Evidence Act that the evidence may be unreliable or falls into a category that the law recognises may be unreliable. In respect of the first such witness, application was made by four of the accused with the support of the Crown. Counsel for Mr Kalal accepted that he could not contend that there were “good reasons for not” giving the warning [13] but submitted that all legal directions should be given together in the summing up. I accepted that it was appropriate to provide a warning to the jury at the conclusion of the evidence of each witness: R v Qaumi & Ors (No 33) [2016] NSWSC 676. The warnings given in relation to the relevant witnesses are based on the fact the witness was criminal involved in the event, or gave evidence of admissions, or was a prison informant. In each case the earnings have been detailed and firm. [14] The fact that these warning are provided after the cross-examination of Mr Clarke redresses the perceived or actual forensic disadvantage to a very significant degree.

5. [31]

   Fourthly, the credibility attacks made in the cross-examination on behalf of the three accused (and where necessary and appropriate, by counsel for the accused, Mr Zarshoy) are lengthy, sustained and powerful. In some cases, the cross-examination has proceeded over many days. The extent to which Mr Clarke’s cross-examination has a capacity to resurrect the witnesses’ credibility is questionable and will ultimately be a matter for the jury to determine.

6. [32]

   While I accept that the three accused perceive the process and the order of cross-examination to be unfair, my objective assessment is that there is no real unfairness. I have no doubt that when the jury comes to evaluate the evidence elicited by Mr Clarke, it will have firmly implanted in its collective mind the substantial damage done to the credibility of each witness by the skilful and forceful cross-examination of counsel for the other accused. In many ways, that damage is more memorable than the series of (mostly leading) questions asked by Mr Clarke. It is more dramatic and theatrical. Counsel for Mr Zarshoy remained neutral (“When elephants fight I always understood ants stay out of the way”) [15] but made the following observation:

7. [33]

   That observation accords with my own. In any event, the jury will receive clear direction as to the fact that each case must be considered separately and that the degree to which the evidence of each witness impacts on the case of each accused will vary from case to case and from count to count.

8. [34]

   The final matter is that application can (and has) been made that Mr Clarke be prevented from asking leading questions. For the most part, I have refused those applications but on one occasion prior to the decision not to separate Mr Kalal, and on one occasion since, an order under s 42 of the Evidence Act was made. [16] Further, the fact that Mr Clarke elicits the evidence by leading questions reduced the power and cogency of the evidence [17] and counsel for the three accused will no doubt make strong comment on this in their closing addresses.

Conclusion

1. [35]

   Having considered the course of the evidence to this date and predicting as best as I can the likely future course of the trial, I was not satisfied that the trial has been (or will be) unfair or that the conduct of a joint trial had (or will) cause prejudice or embarrassment to the accused. I considered the specific questions to which I was taken as well as making an assessment of the trial viewed objectively and as a whole. I considered the directions that the jury has already received and the directions that it will receive before it retires to consider its verdicts. I applied the law that was set out in the earlier judgments.

2. [36]

   I concluded that that the trial should proceed as a joint trial and that Mr Kalal should not be tried separately.