R v Qaumi & Ors (No 23)

1. [1]

   I am going to make some brief remarks about the case management concerning next Thursday and Friday's argument concerning the admissibility of evidence sought to be introduced by the accused Mohammed Kalal. These remarks and the written judgment that will follow should be read in the knowledge that counsel currently appearing for the accused Mohammed Kalal did not formally come into the case until 30 March 2016.

2. [2]

   On 27 July 2015, nine accused were arraigned on a total of 36 counts. Each accused pleaded not guilty. Mohammed Kalal was represented at the arraignment by Senior Counsel who no longer appears in the trial. I made a number of case management orders, including an order for a defence response pursuant to s 143 of the Criminal Procedure Act 1986 (NSW). Senior Counsel was present when that order was made and copies of the orders were provided in multiple hard copies to the parties.

3. [3]

   Order 4 in the case management orders made that day was in the following terms:

4. [4]

   Section 143 of the Criminal Procedure Act is in the following terms:

5. [5]

   In purported compliance with that order, the solicitors for Mr Kalal filed a one-page document under the law firm's letterhead in the following relevant terms:

6. [6]

   In November and December 2015, a number of pre-trial issues were ventilated. The accused were permitted a Basha inquiry in relation to a number of informant or rollover witnesses, see R v Qaumi & Ors (No 2) (Basha Inquiry) [2015] NSWSC 1715. In addition to matters permitted under the Basha inquiry, Senior Counsel for Mr Kalal sought and was granted the opportunity to ask questions relevant to the question of whether there should be a separate trial of his client.

7. [7]

   The Basha inquiry and associated voir dire into the question of separate trials took place from 19 November 2015 to 3 December 2015.

8. [8]

   From 8 to 10 December, submissions were made on the question of severance of counts and separate trials of accused.

9. [9]

   The accused Farhad Qaumi sought severance of a number of counts but Senior Counsel on his behalf specifically eschewed any application for a separate trial from any one or other of his co-accused. I reserved on the issue over the Christmas break.

10. [10]

    On 3 February 2016, judgment was delivered on the issue, see R v Qaumi & Ors (No 3) (Severance and Separate trial) [2016] NSWSC 15. Relevantly, Mr Kalal's application for a separate trial and consequent remitter to the District Court in accordance with an undertaking made by the Director of Public Prosecutions to the Chief Justice was refused.

11. [11]

    On 18 and 19 February 2016, I heard arguments relating to a number of evidentiary objections, including an objection by Farhad Qaumi to certain evidence proposed to be led by the Crown. That evidence suggested that Farhad Qaumi had boasted to members of the Brothers for Life Blacktown that he had previously committed two (or three) murders and had been acquitted.

12. [12]

    In the course of that argument, Senior Counsel raised, as far as I can tell for the first time, that he had an interest in the admissibility of the evidence because a defence of duress may be raised. I am going to set out a passage from the transcript at 907:

13. [13]

    The reference in that passage to Senior Counsel withdrawing was a reference to the fact that he intended to withdraw from the trial, as I understand it for professional reasons unrelated to the case. He had advised me of that some days earlier and indicated that a barrister, who is a senior junior, was to take his place with the consent of Mr Kalal and his solicitor.

14. [14]

    It is worth repeating that until 18 February 2016, there had been no suggestion that Mr Kalal was to mount a defence of duress. The defence disclosure suggested that the defence was that Mr Kalal was not involved. There is no other way that I can see of reading it. There was no cross- examination on the issue in the course of the voir dire or “Basha” inquiry, even though the matter is obviously relevant to the question of whether there should be separate trials. There was no submission on the issue either orally or in writing in the course of the applications for separate trials or severance of counts on the indictment.

15. [15]

    On 24 February 2016, I ruled the evidence relating to Farhad Qaumi boasting about two (or three) previous murders to be inadmissible and published reasons for that decision, see R v Qaumi & Ors (No 6) [2016] NSWSC 115.

16. [16]

    The position of Mr Kalal, as stated by Senior Counsel on 18 February, was noted and reserved in paragraph 21 of that judgment. A number of pre-trial issues continued to be ventilated and the commencement of the trial proper was delayed. The matter with which I am presently concerned was not raised in any context.

17. [17]

    One of the issues ventilated was whether the accused should be tried by jury or judge alone. The issue of duress and the kind of evidence that might be led in support of that defence was at least potentially relevant to that question and yet at no stage was the matter raised with any degree of certainty. [2]

18. [18]

    On 24 March 2016, in the course of submissions on an unrelated issue, Mr Kalal withdrew his instructions from the barrister that had taken over on 22 February 2016; see R v Qaumi & Ors (No 18) (Stay of Counts 8 and 9) [2016] NSWSC 351 and transcript pages 1343 to 1344. At that stage, a jury pool of more than 200 people had been summoned to attend the Court on Monday 4 April 2016. A principal of the law firm appeared on the 24 March 2016 after counsel advised me that her instructions had been withdrawn. He indicated that he hoped to find alternative counsel by the time that the trial commenced. He told me that he and his law firm had been in the case "since the beginning".

19. [19]

    On 30 March 2016, Mr Clarke of counsel appeared for the first time. He was in an unenviable position. At that stage, there remained a problem with Legal Aid funding and he was confronted with a very large brief. On the other hand, his solicitors had been in the matter for many months or years and presumably were well on top of the material and issues. Mr Clarke referred to his client's defence and what I had said in paragraph 21 of R v Qaumi & Ors (No 6).

20. [20]

    On Friday 1 April 2016, the matter was listed for final submissions on the proper approach to the empanelment procedures. Mr Clarke indicated then that part of his client's defence would involve canvassing matters of duress.

21. [21]

    Since the jury was empanelled, Mr Clarke has continued to gain greater familiarity with the brief. He opened to the jury an appropriately circumspect way. He did not say the word "duress" but he did make reference to the distinction between "leaders" and "followers" and raised what he called the issue of whether his client was acting voluntarily. I can only assume that this was a cautious way of flagging the issue of duress.

22. [22]

    It is now clear that Mr Kalal seeks to adduce evidence that he was aware of boasts made by Farhad Qaumi that he had "beaten" two (or three) previous murder charges. It seems that this will go beyond the evidence of the three witnesses to whom R v Qaumi & Ors (No 6) related.

23. [23]

    Senior Counsel for Farhad Qaumi has indicated that he will "ferociously" object to such evidence. The precise content of Mr Kalal's defence and the detail of the evidence is not presently known. Meanwhile, there is a jury of 15 and we are in day 8 of the trial before the jury. Over 30 witnesses have already been called and the matter is proceeding quickly and efficiently.

24. [24]

    The issue must be resolved before Mr Clarke cross-examines the informant witnesses, or at least some of them. It is expected that those witnesses will start to give evidence in the next couple of weeks.

25. [25]

    Mr Stratton canvassed the possibility of separating Mr Kalal and his trial from the other accused. Mr Kalal makes no further application for separate trials. Whether any of this will impact on the other three accused is not presently known because the details of what Mr Clarke seeks to do remain somewhat opaque. It is estimated that the argument will take about a two days.

26. [26]

    Yesterday, I told the jury that a legal issue would be discussed in its absence on Thursday 21 and Friday 22 April 2016 and that is when I propose to hear the arguments on this issue.

27. [27]

    It is necessary to make further case management orders to ensure that the argument will proceed quickly and efficiently. It needs hardly be observed that if Mr Kalal's former barristers and lawyers had provided an adequate defence response or raised this matter at some stage during the lengthy pre-trial hearing, this would not be necessary and the flow of the jury trial would not be interrupted. [3]

28. [28]

    I am considering whether any action should be taken in that regard and whether, in particular, I should call on submissions as to why the matter ought not to be referred to appropriate professional bodies.

29. [29]

    Accordingly I make the following case management directions:

    1. (1)

       On or before 10.30am on Monday 18 April, the accused Mohammed Kalal is to file and serve on the other parties an amended defence response pursuant to s 143 of the Criminal Procedure Act 1986 (NSW). Such response is to include, where relevant, the matters referred to in s 143(2) of the Criminal Procedure Act 1986 (NSW).

    2. (2)

       On or before 10.30am on Monday 18 April, the accused Mohammed Kalal is to file and serve on all affected parties the following documents:

    3. (3)

       Any other party, accused or Crown who seeks to be heard in opposition to the proposed cross-examination or admission of the evidence, or on the issue of separating the trials, is to file and serve written submissions by 9am on Thursday 21 April 2016, such submissions to indicate whether there would be any consequent application for discharge of the jury if orders for separation of the trials is made at this stage.

    4. (4)

       Confirm the matter is listed for oral argument on Thursday 21 April 2016 with an estimate of one and a half days.

    5. (5)

       The cross-examination on behalf of Mohammed Kalal of any relevant witness is deferred until determination of this issue.

Addendum

1. [30]

   After this judgment was delivered, counsel made submission as to the form of the above orders and the orders were varied: see R v Qaumi & Ors (No 24) [2016] NSWSC 505 at [16].

2. [31]

   Further, after considering the matter further, I have decided to take no action of the kind contemplated above at [28]. I have come to that decision in spite of the fact that the failure to raise the matter clearly and unambiguously has created delay and additional expense. Further, legal practitioners must be aware that the case management provisions in ss 141-144 of the Criminal Procedure Act must be taken seriously. The original defence reply under s 143 in the present case was wholly unsatisfactory. Further, it was misleading in that it suggested that the accused intended to deny participation in the shootings in spite of forensic evidence that connects him to the weapons. His actual defence is that (i) he participated in the shootings but that his will was overborne by threats by two of the co-accused and he was acting under duress and (ii) that he deliberately discharged the weapons in such a way that the victims would not be killed or injured. In spite of this, I have decided to take no further action because of the possibility that counsel may have been concerned that raising the matter would create a situation of danger for Mr Kalal and may have taken a forensic decision that they believed were necessary. I accept that there was no intentional misleading of the Court and other parties although that was the result of the inadequacy of the document filed.