R v Qaumi & Ors (No 57)

On the 85th day of a jury trial, in which five accused men are charged with 24 offences, the prosecution closed its case. Four of the accused made applications that the jury be directed to return verdicts of not guilty in relation to some of the charges on the indictment. One of those applications was by the accused Farhad Qaumi who seeks a directed verdict of not guilty in relation to counts 10, 11, 12, 13, 14, 15 and 16. All of those charges arise as part of a single incident, which took place on 7 November 2013 outside of the Chokolatta Cafe in Bankstown.

The charges are in the following terms:

It is the Crown case that the target of the shooting outside of the Chokolatta Cafe was the man named in counts 10, 11, and 12, that is, Abdul Abu-Mahmoud. He has been referred to throughout the trial by his nickname “Abs”. He was shot when he was sitting in the passenger seat of a BMW motor vehicle. He was in the company of the other victims named in the indictment. Mr Khalil occupied the driver’s seat while Mr Soueid was seated in the back seat of the vehicle. Mr Abu-Mahmoud and Mr Soueid suffered shotgun wounds while Mr Khalil escaped uninjured. There was damage caused to the BMW vehicle when it was struck by the projectiles of a shotgun and .38 calibre revolver.

The prosecution case is that the shooting was carried out by three members of a criminal gang known as the Brothers for Life Blacktown. Those men were the accused, Mohammed Kalal, and two prosecution witnesses known as Witness D and Witness I. The Crown case, which appears to be uncontested, is that Witness I drove the shooters to the vicinity of the shooting and parked his car in such a position that a BMW vehicle occupied by the three victims was unable to move from where it was parked. Witness D discharged a shotgun at or into the driver’s side of the BMW while the accused Kalal fired a 0.38 calibre revolver from the passenger side of the vehicle. It appears that no injury was caused by the discharge of the revolver and the evidence suggests that the bullets from that gun struck the side of the BMW. The Crown case is that Mr Kalal, Witness D and Witness I acted with intent to kill the man Abs and, incidentally, the two men with him.

The case against Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi in respect of counts 10, 11 and 12 is that they either directed or organised the shooting or were part of a joint criminal enterprise which contemplated or encompassed the shooting. There is evidence that Mumtaz and Jamil Qaumi, along with another prosecution witness (Witness M), gave the three men who carried out the shootings directions and instructions as to who the target should be and how the murder should be carried out. This occurred a relatively short time before the shooting and there is evidence of an earlier reconnaissance where the target was identified.

In respect of the victim of counts 13 and 14 (Khalil Khalil) and counts 15 and 16 (Hassan Soueid) the Crown case is that the accused Mohammad Kalal (as principal in the first degree or principal in the second degree) and the accused Jamil Qaumi and Mumtaz Qaumi (as accessories before the fact) are guilty on the basis of the application of the principles often referred to as extended joint criminal enterprise or extended common purpose: see for example McAuliffe v The Queen [1995] HCA 37; 183 CLR 108, Gillard v The Queen [2003] HCA 64; 219 CLR 1 and Clayton v The Queen [2006] HCA 58; 168 A Crim R 174. In other words, in respect of Mohammed Kalal, Mumtaz Qaumi and Jamil Qaumi, the prosecution attempts to establish that in the course of carrying out an agreed criminal enterprise (that is, the murder of Abdul Abu-Mahmoud) the participants contemplated the possibility that other persons in the vicinity would also be killed or receive injuries constituting grievous bodily harm and that those injuries or deaths would arise as the result of the shooter (in this case, witness D) forming a murderous intention.

Mumtaz Qaumi, Jamil Qaumi and Mohammed Kalal made an application for directed verdicts in relation to counts 13 and 15 on the basis that there is no evidence that the participants had an intention to kill Khalil or Soueid. Those charges require proof of an intention to kill and proof that the participants in the joint criminal enterprise contemplated the possibility that the shooters would act with a murderous intention. Those applications were refused: see R v Qaumi & Ors (No 60) [2016] NSWSC 1160.

Senior Counsel for Farhad Qaumi contends that there is no case to answer in relation to any of the counts arising out of the Chokolatta Café shooting. It is common ground that the accused Farhad Qaumi was not in Australia at the time of the shooting at the Chokolatta Cafe. He was in Thailand. However, the prosecution case is that, before his departure, he gave directions to other members of the criminal gang to carry out a number of “public shootings” to advance the interest of the criminal group known as the Brothers for Life, Blacktown Chapter (BFL Blacktown). Farhad Qaumi contends that there is no evidence that he gave any such direction in respect of the target Abdul Abu-Mahmoud.

The prosecution accepts that there is no evidence that Farhad Qaumi gave any direction that the man Abdul Abu-Mahmoud should be targeted in the course of the spate of shootings in relation to which the present trial is concerned. However, it is submitted that he is criminally liable, or at least that there is a case to answer, based on the principals of (extended) joint criminal enterprise.

For present purposes the critical meetings as alleged by the prosecution occurred on 2-3 November 2013. The evidence of these meetings came from Witness L and Witness M. It is common ground that a large group of the BFL Blacktown met at the Sydney Casino on the evening of 2 November 2013. That was a day or so after the killing of Mahmoud Hamzy at Revesby Heights (count 1) and the wounding of Omar Ajaj (count 2). Those men were shot in the course of a failed attempt to murder the leader of a rival gang (the BFL Bankstown), Mohammed Hamzy. While at the casino, Farahd Qaumi spoke with two members of the BFL Bankstown. It is the prosecution case that the Revesby Heights shooting occurred in the context of some kind of “turf war” between the rival chapters and that the BFL Blacktown were attempting to take over some of the territory in which the BFL Bankstown was dealing in drugs and conducting other criminal activity. It is the defence case (or at least the case of Farhad, Mumtaz and Jamil Qaumi) that the cause of the conflict and the motivation for the shooting was the fact that Mohammed Hamzy had taken out a contract on the life of Farhad Qaumi. There seems to be little dispute, and at least it is the Crown case, that Farhad Qaumi was the self-appointed leader of the BFL Blacktown Chapter. In any event, the meeting at the casino followed that shooting.

There is a significant body of evidence that Farhad Qaumi and his brothers were concerned that the BFL Bankstown may seek to retaliate after the failed attempt to kill Mohammed Hamzy. This is alleged to be the motive for the shooting of Michael Odisho on 3 November 2013 (count 4-5) and a shooting at the home of Masood Zakaria on 4 November 2013 (counts 7-9). The targets of those shootings were members of the BFL Bankstown. However, Abdul Abu-Mahmoud was not a member of the BFL Bankstown although he had some association with that group.

After the meeting at the casino, the prosecution case is that a smaller group attended a park, possibly in the area of the Botanic Gardens or that part of the Domain adjacent to Mrs Macquarie’s Chair. The evidence of Witness L is that in the course of this meeting Farhad Qaumi formulated a plan to embark on a series of shootings of persons associated with the Brothers for Life Bankstown. A number of people were specifically nominated. However, there is no evidence that Mr Abu-Mahmoud was not nominated as a target. Witness L’s evidence on this subject was as follows:

It will be seen that there is no suggestion that Abdul Abu-Mahmoud was to be the target of the shooting.

The other relevant evidence comes from Witness M. She gave an account of a meeting that occurred in the days following the Hamzy shooting and before Farhad Qaumi’s departure for Thailand:

Again, Mr Abu-Mahmoud was not nominated to be the target of any of the proposed shootings.

In terms of the events immediately preceding the shooting outside the Chokolatta café, Witness M gave evidence of meeting Jamil Qaumi at the Thornleigh McDonalds and then meeting with Mumtaz Qaumi, “maybe Jamil”, Witness D and Witness I in a street parallel to the BP station at Rosehill. She gave the following evidence:

Witness I also gave evidence about the meeting at “Rosehill Maccas”:

Witness L gave evidence of a meeting that appears to have been on the night of the Chokolatta Café shooting:

Witness D’s evidence of the meeting before the shooting was vague but included the following:

There is nothing in the evidence of events leading up to shooting outside the Chokolatta Café on 7 November 2013 to suggest that Farhad Qaumi ordered the shooting of Mr Abu-Mahmoud or was part of a criminal enterprise to commit that shooting. Witness M’s evidence suggests that he had specifically ruled out Mr Abu-Mahmoud as a target.

The Chokolatta Cafe shooting was so poorly planned and executed that it was the beginning of the end of the Blacktown Chapter of the Brothers for Life. In its immediate aftermath, a number of the gang members were arrested and two guns used in the shooting (later connected with other criminal activities involving the gang) were seized by police. Witness L gave evidence of a conversation he had with Farhad Qaumi after the latter returned from Thailand:

In light of that evidence it is difficult to understand how Farhad Qaumi might be criminally responsible for the shooting outside the Chokolatta Cafe, either by reference to traditional principles of accessorial liability or by application of the doctrine of extended joint criminal enterprise as explained in cases such as McAuliffe, Clayton and Gillard.

However, the prosecution submits that his criminal liability arises in the following way:

According to the Crown Prosecutor this gives rise to criminal liability pursuant to the principles of extended joint criminal enterprise as articulated by the High Court in cases such as McAuliffe, Gillard and Clayton. The Crown provided a proposed direction that articulated the case that it proposed to put to the jury:

In McAuliffe v The Queen, the doctrine was encapsulated in the following passage from the judgment of the High Court at 113-114:

After referring to Johns v The Queen (1980) 143 CLR 108 and the Privy Council’s decision in Chan Wing-Siu v The Queen [1985] AC 168, their Honours continued at 117:

The Crown placed reliance on the following passage of the majority in Clayton [17]:

The United Kingdom Supreme Court recently declared that the law took a “wrong turn” in Chan Wing-Siu and McAuliffe: R v Jogee [2016] UKSC 8. There are currently two cases pending before the High Court in which the appellants contend that R v Jogee should be followed and that the Australian cases in which the concept of extended joint criminal enterprise was formulated should be overruled. Cases of Miller and Ors v The Queen was argued before the Full Court on 10-11 May 2016 and judgment is pending: [2016] HCATrans 107. Special leave was granted in a case called Bucca & Castle v The Queen and the matter is listed for argument on 31 August 2016: [2016] HCATrans 121. A perusal of the submissions (which are available on the High Court’s website) [9] shows that the appellants will similarly argue that the law of extended joint criminal enterprise as it has been applied in Australia, at least since the decision of McAuliffe, is wrong and should be changed. In spite of these developments, the law as it currently stands is that stated in McAuliffe. Senior Counsel submitted that McAuliffe and the cases following it were wrongly decided. However, he made this submission to protect his client’s position but it is accepted that I must apply the law as it currently stands in determining each of the applications for directed verdict that were argued on 18-19 August 2016.

In determining the current application I must take the Crown case at its highest. As it was put in in Doney v The Queen [1990] HCA 51; 171 CLR 207 at 214:

In a circumstantial case, the question of whether the Crown has negatived all other reasonable inferences consistent with innocence is a question for the jury, not the trial Judge on an application for a directed verdict: R v JMR (1991) 57 A Crim R 39.

Even taking the prosecution case at its highest and giving effect to the extension of criminal responsibility as represented by the Australian law of extended joint criminal enterprise, I am unable to accept the Crown’s submission that there is a case capable of establishing Farhad Qaumi’s guilt in relation to counts 10 – 16. There is no evidence upon which the jury could conclude (and I emphasise the word “could”) that Farhad Qaumi contemplated the possibility that Mumtaz Qaumi would make the decision to set upon a plan to kill Mr Abu-Mahmoud. Whilst there appears to be evidence that Mr Abu-Mahmoud had some association with members of the Bankstown BFL, he was not a member of that organisation and there is no evidence that Farhad Qaumi was aware of any threat that he apparently posed (at least in the rather erratic thinking of Mumtaz Qaumi and Witness M). The only evidence of Farhad Qaumi’s intentions in respect of Mr Abu-Mahmoud is that he did not want him to be a target of the shootings.

I am unable to accept the Crown’s submission that the fact that Farhad Qaumi directed a series of shootings, as a pre-emptive strike against a feared reprisal or to take over the turf of the Bankstown BFL, gives rise to a case that he contemplated the possibility that Abdul Abu-Mahmoud would be targeted by Mumtaz Qaumi and his cohorts, let alone that others would be shot with murderous intent in the process. There is no evidence that Farhad Qaumi authorised or directed an unspecified series of “public shootings”. Rather, on the Crown case, he nominated or specified a number of potential targets for these shootings and left his brother in charge of organising and executing those shootings.

There is no evidence that he gave directions to members of the Brothers for Life Blacktown that they should follow Mumtaz Qaumi’s orders in respect of any crime or shooting that Mumtaz Qaumi decided to commit. The “scope of the common purpose” was determined by reference to a group of named targets. Mr Abu-Mahmoud was specifically excluded from that group. This is a different situation to that considered by the High Court in paragraph [17] of Clayton where an accused might be convicted of murder even though he did not want the victim to be killed but foresaw the possibility that a participant in the enterprise may act with murderous intent. Rather, this is a case where the solicitation and attempt to murder Mr Abu-Mahmoud was outside the scope of the criminal enterprise of which the accused was a participant. The evidence is not capable of establishing that Farhad Qaumi contemplated or foresaw the possibility that Mumtaz Qaumi and others would target people outside the scope of the criminal enterprise or one who was specifically excluded from it.

Accordingly, I have concluded in respect of counts 10, 11, 12, 13, 14, 15 and 16 that there is no case for Farhad Qaumi to answer. I intend to direct the jury to enter verdicts of not guilty in respect of those seven counts.