R v Qaumi & Qaumi (No 5)

The accused are charged with the murder of Joseph Antoun (“the Antoun murder”). The trial, which is by Judge alone, commenced around an hour before the orders to which this judgment relates were made. Arguments relating to the matter were made before the trial commenced but a decision could not be made until the NSW Crime Commission complied with certain undertakings made to the Court in the absence of the parties. A jury is presently considering its verdicts in respect of a large number of charges against the same two accused as well as three other men. Those charges include the murder of Mahmoud Hamzy and a conspiracy to murder Mohammed Hamzy (“the Hamzy murder”). The two trials were separated as a result of orders made in February 2016: R v Qaumi & Ors (No 3) (Severance and separate trial) [2016] NSWSC 15.

Prior to the commencement of the first trial, the accused Farhad Qaumi brought a notice of motion seeking orders under ss 45(4) and 45(5) of the Crime Commission Act 2012 (NSW) requiring the NSW Crime Commission to produce the transcripts of certain evidence to the Court and then to release those transcripts to the parties in the trial. Ultimately, an edited transcript of the evidence of a particular witness (“the Witness”) was released to the accused: R v Qaumi & Ors (No 11) (s 45 Crime Commission Act) [2016] NSWSC 211. That judgment was in two parts. The first part, which was released to the parties in the trial, set out in general the principles by which I was guided in reaching my decision. The second part, which was not released to the parties and which will remain confidential and not for publication due to the sensitive nature of its contents, sets out the reasons for my decisions under s 45(5) that were specific to the evidence that had been produced by the Commission to the Court under a certificate issued pursuant to s 45(4).

After the jury in the Hamzy murder trial retired to consider its verdicts, a number of pre-trial issues were ventilated in respect of the Antoun murder trial. The accused brought a notice of motion seeking production of the evidence given by the Witness before the Crime Commission in respect of the Antoun murder. This material was not pressed before the first trial and the transcript provided at that time was edited accordingly. The Crime Commission did not object to an order under s 45(4) and an edited transcript was provided to the Court. Further, there was no objection for the edited transcript being released to the accused and to the Crown under s 45(5). Accordingly, having satisfied myself that the interests of justice so required it, I provided the Commission with a Certificate under s 45(4) and made an order that the edited transcript of the Witness be released to the parties.

In considering the notice of motion that related specifically to the Witness, and having revisited the judgment in R v Qaumi & Ors (No 11), I recalled that the notice of motion originally filed was cast in wider terms and sought “any evidence given before the Commission relating to the murder of Joseph Antoun”. What was not known to the parties in this trial was that the Commission had produced transcripts of evidence given by other witnesses. This was dealt with in the confidential annexure to the judgment. With the consent of the parties, the Court was closed to all except for officers of the Commission and its lawyers. I raised the matter with the Crime Commission’s representatives and, in order to ensure the fairness of the trial proceedings, I made an order of my own motion under s 45(4) that certain evidence be again produced to the Court. Having considered that evidence, I advised Senior Counsel for the accused that there may be other evidence caught by their original notice of motion but not caught by the notice of motion brought specifically in advance of the Antoun trial. I invited Senior Counsel to identify the forensic purpose or reason that they had originally sought production of “any evidence relating to the murder of Joseph Antoun” and to articulate the issues in the trial to which evidence given to the Crime Commission might relate.

A specific issue referred to by Senior Counsel concerned the gun (a .38 snub nosed revolver) that, on the Crown case, was used to murder Joseph Antoun. This issue arose as a result of questions asked in the course of the evidence of the Witness and a suggestion that this gun had been used in other crimes not connected with the accused. [1] It is not clear that the Witness agreed with the proposition, although they did agree that they “touched heaps of guns”. As I read the two transcripts produced by the Commission in the course of the pre-trial hearing relating to the Antoun murder trial, I did not notice any reference to the murder weapon and the representatives for the Crime Commission confirmed that there was no reference to the murder weapon in those transcripts.

The more general issue raised by Senior Counsel concerned whether there was evidence that suggested that any other person may had a motive to kill Joseph Antoun. The Crown case against the accused is that the accused accepted a contract to murder Mr Antoun from a person called Les Elias. There may also be evidence that another man, Pasqaule Barbaro, with whom at least one of the accused has some association, may have been motivated to do harm to Mr Antoun. The Crown case is that the accused engaged a man known as Witness L to carry out the murder. Witness L has been sentenced for the murder and is expected to give evidence against the accused in the trial: R v NK (No 3) [2015] NSWSC 1257. I accepted the submission of Senior Counsel that evidence that other people may have had a motive to kill Joseph Antoun is evidence that has the capacity to impact on the likelihood or probability that the two accused were involved in a joint criminal enterprise to murder Mr Antoun.

I reviewed the evidence that was produced by the Commission and received confidential evidence and submissions in closed court. As to the undesirability of, but necessity for this procedure: see R v Qaumi (No 11) at [11]. It is unnecessary, and not possible in the time available, to go into great detail at this stage but I have considered a number of matters that are relevant to the power under s 45(5) [2] including the following:

The Commission opposed the release of the transcripts. Toward the end of submissions, the Commission was invited to consider whether it would be prepared to advise the parties in writing of the substance of evidence or motives in others. In particular, I identified the following areas that caused me concern:

The last mentioned items were tendered in closed court but they did not become confidential exhibits. The media articles and blogs were tendered to establish that a good deal of the material is in the public domain. The particular matter referred to in the articles that are separate from the other four matters identified concerns evidence given before a Royal Commission that suggests some connection between Joseph Antoun, the CFMEU and a suggestion of corrupt payments. This, again, might give rise to a motive outside the paradigm of the case that I anticipate will be presented by the Crown. It may be a rather long bow to draw, but if the accused and their legal representatives are not aware of it, it is material that they may wish to consider.

I was informed on the day that the trial proper commenced, that the Crime Commission had written to the Director of Public Prosecutions in the following terms and that the letter has been disclosed to the accused lawyers:

In view of that disclosure, and given the countervailing considerations referred to above, I have concluded at this stage that the interests of justice do not require that the evidence that has been produced pursuant to s 45(4) should be made available to the accused, their legal representatives and to the prosecutor. In reaching that conclusion, I have adopted the approach to the legislation that I explained in R v Qaumi & Ors (No 11). In respect of the expression “if the interest of justice so require”, I apply the provision in the way explained at [16] to [23] in R v Qaumi & Ors (No 11).

While acknowledging that this may be a matter that could be revisited should circumstances change, it is for those reasons that I decline to make an order under s 45(5) for the evidence produced under s 45(4) to be made available to the accused, their legal representatives and to the prosecutor.