R v Qaumi & Ors (No 24)

1. [1]

   Five accused are currently on trial charged with 24 offences arising out of their alleged involvement in a group known as the Blacktown Chapter of the Brothers for Life (BFL Blacktown). Originally, nine accused were charged with 36 offences. There were 46 days of pre-trial hearing between 5 November 2015 and 1 April 2016. A jury of 15 was empaneled on Monday 4 April 2016. The trial has an estimate of four to six months. The trial proper has proceeded for twelve days. One of the accused (Mohammed Kalal) seeks to cross-examine a number of prosecution witnesses in an attempt to establish a defence that he was acting under duress by another of the accused (Farhad Qaumi). He hopes to elicit evidence that Farhad Qaumi boasted about being involved in two (or three) earlier murders and “beat” the charges. Objection is taken to this evidence by three of the accused. However those objections may be resolved, questions arise as to whether orders should be made separating the trials of one or more of the accused.

2. [2]

   The prosecution case is that the BFL was a criminal gang involved in drug supply, extortion and other malfeasance. The present trial encompasses offences arising out of five separate shooting incidents that occurred on 28 October and 2, 4, 7 and 29 November 2013 as well as allegations of possession of guns, the large commercial supply of drugs and participating in a criminal group. The prosecution alleges that these shootings arose in the context of a “turf war” between the BFL Blacktown and another criminal gang known as the BFL Bankstown. The leader of the BFL Blacktown was the accused Farhad Qaumi while the BFL Bankstown was run by Mohamed (Hamoudie) Hamzy, also known as Little Crazy or LC.

3. [3]

   The facts and evidence are summarised in earlier judgments: see, for example, R v Qaumi & Ors (No 3) (Severance and Separate Trials) [2016] NSWSC 15. At least part of the evidence that Mr Kalal seeks to adduce was ruled to be inadmissible as between the Crown and the Farhad Qaumi: R v Qaumi & Ors (No 6) [2016] NSWSC 115.

The issues to be determined on the voir dire and the unsatisfactory way in which those issues have arisen

1. [4]

   Case management directions were made in July 2015 and there were extensive pre-trial hearings relating to the conduct of the trial and the admissibility of evidence. The two judgments to which I referred in the previous paragraph are of particular relevance to the questions that now arise. On 8-10 December 2015 I heard argument in relation to a variety of applications for the severance of various counts on the indictment and for separate trials. Judgment on that issue was delivered on 3 February 2016: R v Qaumi & Ors (No 3). On 18-19 February 2016 I heard argument as to the admissibility of evidence that the Crown sought to tender against the accused Farhad Qaumi that showed that he had boasted to members of the BFL Blacktown that he had previously killed two (or three) people and had “beaten” the charges. On 24 February 2016 that evidence was ruled to be inadmissible for reasons set out in R v Qaumi & Ors (No 6).

2. [5]

   In the course of the latter argument, Senior Counsel then appearing for the accused Kalal raised the possibility that Mr Kalal may seek to elicit such evidence in his case. He said:

3. [6]

   After it was indicated that the ruling as between Farhad Qaumi and the Crown would not be binding on Mr Kalal, Senior Counsel went on to say

4. [7]

   Another barrister appeared for Mr Kalal from 22 February 2016 until 24 March 2016. At no stage during that period was the evidentiary issue raised. However, the learned Crown Prosecutor raised his suspicion that the issue of duress may be raised and counsel for Mr Kalal did not refute that suggestion saying that “it would appear that an element of duress will be raised in the case of Mr Kalal”. [2] On 24 March 2016, Mr Kalal withdrew his barrister’s instructions. Counsel who currently appears came into the matter on 30 March 2016. He immediately raised the matter as a possible issue but there was no application to postpone the commencement of the jury trial. [3] It was not until after the empanelment that it became clear that the matter must be resolved as between Mr Kalal and Farhad Qaumi.

5. [8]

   Two things should be observed about this procedural history. First, the possibility that Mr Kalal might raise a defence of duress was not raised in Mr Kalal’s reply pursuant to s 143 of the Criminal Procedure Act 1986 (NSW). Secondly, the fact that the Mr Kalal might mount a defence of duress – directed to one or more of his co-accused – and the evidence to be adduced in support of that defence, may have been a relevant consideration in the separate trial applications. It would also have informed the important decisions taken by the co-accused from whom the duress is said to emanate. In fact, as soon as the matter was raised clearly and unambiguously as an issue, Senior Counsel for Farhad Qaumi indicated that an application for separate trials would be made. On 18 April 2016 Farhad Qaumi filed a notice of motion seeking an order that he be tried separately to Mr Kalal. [4] Jamil and Mumtaz Qaumi subsequently made similar applications. [5]

6. [9]

   The failure to identify the true defence and to raise the evidentiary issue as a matter clearly in need of resolution has delayed and interrupted the flow of the jury trial. After two and a half weeks, the jury has been released until after the Anzac Day and Passover long weekend, a period of seven days (three court sitting days). It also means that crucial legal rulings must be made hurriedly in order to minimise the disruption to the jury. I have recommended that the jury be paid for the days that they are not required to attend Court. This results in additional expense to the community. Finally, it has created a risk that the jury may need to be discharged. The situation is highly unsatisfactory.

Case management of the issues that arise on the voir dire

1. [10]

   On Wednesday 13 April 2016 I made a number of orders designed to streamline the conduct of the voir dire and to clarify the nature of Mr Kalal’s defence and the evidence (in general terms) that he sought to adduce in support of that defence: see R v Qaumi & Ors (No 23) [2016] NSWSC 429. These orders were designed to minimize the disruption to the jury, to put the other accused on notice as to the issues that arose, to enable them to be heard and to ensure that I had a clear understanding of the matters to be decided.

2. [11]

   The orders provoked a response for counsel for the accused Zarshoy who complained that the directions had a capacity to infringe the accuseds’ right to silence. [6] How the orders initially made could infringe Mr Zarshoy’s right to silence remain mysterious. Apart from those directed to Mr Kalal, the orders simply provided the other accused with a right to be heard on the issues that arose.

3. [12]

   Counsel for Mr Kalal also complained about the onerous nature of the directions. [7] At the heart of his complaint was the lack of time that he has had to prepare, as a result of his late entry into the trial. [8] He made it clear that he did not intend to “play detective” [9] as to the actions of his predecessors and did not appear initially to appreciate the relevance of the late notice of the issue – that is, the extent to which the evidence might be “unfairly prejudicial” (with emphasis on “unfairly”) – to the other accused (and in particular Farhad Qaumi). That unfairness arose specifically because they had conducted the separate trial and severance applications in a particular way, ignorant of the fact that Mr Kalal might attempt to adduce evidence that was otherwise inadmissible in the trial and which had the potential to prejudice their right to a fair trial.

4. [13]

   Further submissions were made that the directions went “way beyond” the specific application made by Mr Kalal and were outside of the scope of s 143 of the Criminal Procedure Act. I was unable to accept the complaints made about the directions. Section 143(1)(b) requires disclosure by the accused their defence and specifically any “particular defences to be relied on”. This must encompass a defence of duress. The document originally filed not only failed to comply with the section, it also had a capacity to mislead the reader. It was relevantly in the following terms:

5. [14]

   Accordingly, in circumstances where there was a real possibility that the trial would miscarry, it was appropriate to require Mr Kalal to file a document that complied with the section. This was particularly significant in circumstances where the content of that notice may inform decisions to be made by other counsel as to whether they should revisit decisions previously made as to whether to apply for separate trials.

6. [15]

   Further, one of the things that is happening at this stage of the trial is that I am being asked to make an advance ruling pursuant to s 192A of the Evidence Act 1995 (NSW). It is clearly “appropriate” to make such a ruling. For that ruling to have any content and meaning, the Court must have an understanding, at least in general terms, of the evidence proposed to be elicited. Not only that, but I am also revisiting the question of whether the five accused should be tried together in light of information that ought to have been – but was not – brought to my attention in the course of the evidence tendered and submissions made on the separate trial application in December 2015.

7. [16]

   In circumstances where those representing Mr Kalal elected to make a separate trial application on incomplete evidence, based on submissions that did not canvass a matter that had a very real potential to cause embarrassment and prejudice to the co-accused, it was imperative to make clear and precise directions requiring Mr Kalal to provide such information. However, in view of the difficulties under which counsel was labouring and in deference to the complaints made about the directions made in R v Qaumi & Ors (No 23), I amended the orders to extend and stagger the time in which to file relevant documents, to delete the requirement to explain the failure to raise the issue earlier and to relax the prescriptive nature of the written submissions. On Friday 15 April 2016 the earlier orders were replaced by the following directions:

8. [17]

   In compliance with Order 1 above, a document was filed on 18 April 2016 that relevantly disclosed:

9. [18]

   The contrast between this document and the original Defence Response under s 143 of the Criminal Procedure Act is stark. The original document (set out at [13] above) did nothing more that put the Crown to proof and (at least) implied that Mr Kalal denied participation in the shootings.

The evidence that Mr Kalal seeks to elicit

1. [19]

   On 19 April 2016, in compliance with order 2, Mr Kalal filed a document entitled Notice – Defence Case Particulars. This document set out the particulars of the evidence that he seeks to adduce. In oral submissions, Mr Clarke went on to put a series of propositions that constituted Mr Kalal’s “case” on the issue.

2. [20]

   The notice confirmed that Mr Kalal sought to adduce evidence that Farhad Qaumi had boasted about “having got away with three killings unrelated to those matters contained on the present indictment”. The notice indicated that it was intended to put propositions concerning such boasts to six informant witnesses (A, B, D, G, I and L) who “have included material in statements/electronically recorded interviews, that are relevant to this issue” as well as:

3. [21]

   The “general propositions to be put to these witnesses” were identified as follows:

4. [22]

   As to whether it is to be suggested that Mr Kalal heard the statements attributed to Farhad Qaumi, the notice stated:

5. [23]

   The notice then set out the material in the prosecution brief that provided the evidentiary basis for the case.

6. [24]

   Extracts of this material was tendered on the voir dire as Ex VD-25, 26 and 27.

7. [25]

   By way of example, Mr Kalal seeks to introduce evidence from Witness B whose statement of 30 September 2015 said:

8. [26]

   In oral argument, the date upon which Mr Kalal allegedly heard Farhad Qaumi boasting of the previous killings could not be specified. All that could be said was that it occurred at sometime between mid-August 2013 (when he joined the group) and early November 2013 (the time of the shootings in which he participated). [11]

9. [27]

   Counsel for Mr Kalal made it clear that he did not seek to establish the truth of Farhad Qaumi’s boasts. That is, he did not seek to establish that Farhad Qaumi had in fact committed three previous killings (and not been convicted) but only that he had boasted of that fact. It was the fact that the boast was made, rather than the truth of the boast, which is said to be probative of the issue of whether Mr Kalal’s will was so overborne that his liability is excused by duress.

10. [28]

    In terms of the specific facts said to provide the basis of duress in respect of the particular charges faced by Mr Kalal, the notice provided the following information:

11. [29]

    Mr Kalal is charged as a result of his involvement in two of the five shootings that give rise to most of the charges on the twenty four count indictment. These were the “Zakaria shooting” at Blacktown on 4 November 2013 (counts 8 and 9) and the “Chokolatta Café shooting” at Bankstown on 7 November 2013 (counts 11-17). The threats said to have given rise to duress were identified both in the notice and in the course of the oral submissions.

12. [30]

    In relation to the Zakaria shooting – which came in the aftermath of the failure to murder Mr Odisho on 3 November 2013 (counts 4 to 6) – Mr Kalal relies on evidence expected to be given in the Crown case by Witness I. It is expected that the evidence will be that Farhad Qaumi said "how fucking hard is it to shoot somebody" and that the plan to kill Masood Zakaria was then discussed. Farhad Qaumi allegedly said to Witness I, Witness D and Mr Kalal "If you don't get Masood one of you is getting shot". Jamil Qaumi was also present and reinforced the threat by saying "I'm going to shoot whoever doesn't get Masood".

13. [31]

    In relation to the Chokolatta shooting, Mr Kalal relies on statements made by Witness D who said of Mr Kalal:

14. [32]

    It may be that there is other evidence in the Crown case of threats made to Mr Kalal. Counsel candidly acknowledged that he is not yet on top of all of the material. The important thing is that Mr Kalal’s case is that threats of death or serious injury were directed to him and his family immediately before each of the shootings. Part of his case, or his “defence”, is that his actions are excused as a result of duress, that his will was overborne by the threats such that he is not criminally responsible for his acts.

15. [33]

    The other part of Mr Kalal’s defence is that he did not intend to kill or inflict serious injury. He says that the threats caused him to attend the shootings and to discharge the weapons but that he did so in such a way as to ensure that nobody was killed or seriously hurt. In support of this contention, Mr Clarke has cross-examined some of the crime scene officers to establish the limited number of shots fired and that many of the shots appear to have been directed at the roof or floor of the Zakaria house, or into parts of the BMW car targeted in Chokolatta Café shooting that could not have caused injury to those inside.

16. [34]

    Mr Clarke opened the case in an appropriately circumspect way:

The position taken by the other parties

1. [35]

   Farhad Qaumi objects to the admission of the evidence. In the alternative, he seeks an order that Mr Kalal receive a separate trial. The application for separate trials is based on the admission of the evidence that refers to the three previous killings. It is not based on the fact that Mr Kalal has (belatedly) indicated that he will be running a defence that includes raising the question of duress. In other words, if the evidence of Farhad boasting of the three previous murders is excluded, no application for separate trial is made even though Mr Kalal will attempt to mount a defence of duress based on other evidence to be adduced in the trial. Senior Counsel pointed to a number of matters that reduced the probative value of the evidence and went on to point to the extreme nature of the prejudice that would be occasioned if the evidence were to be introduced into the joint trial. Reliance was placed on a number of observations made in R v Qaumi (No 6).

2. [36]

   Jamil Qaumi and Mumtaz Qaumi each support the position taken by Farhad Qaumi. That is, they object to the admission of the evidence but, as fall back position, ask that Mr Kalal be subject to a separate trial (if the evidence is held to be admissible). Senior Counsel for Mumtaz Qaumi and Counsel for Jamil Qaumi acknowledged the relevance and probative value of the evidence in Mr Kalal’s case but emphasised that the prejudice that would be occasioned to Farhad Qaumi would flow to their clients as a result of the fraternal relationship between the three men.

3. [37]

   I interpolate here, because it is relevant to whether I should make an order for separate trials of my own motion, [12] that Jamil Qaumi indicated that he denies making any threat (as alleged by Witnesses I and D or otherwise) to Mr Kalal. This denial came in argument on the present issue and also in counsel’s opening statement to the jury:

4. [38]

   In the course of argument, Ms Carroll (counsel for Jamil Qaumi) said:

5. [39]

   Mohammed Zarshoy initially indicated that if the trials were to be separated, it should be Farhad Qaumi (rather than Mr Kalal) who should be separated. At that stage, it was not clear (as it is now) that the evidence touches not only Farhad Qaumi, but also each of his brothers, and in particular Jamil Qaumi. Ultimately, Mr Zarshoy made no submissions either on the issue of admissibility or on the issue of separate trials.

6. [40]

   In written submissions, the Crown Prosecutors made a number of arguments tending to diminish the probative value of the evidence as it relates to a defence of duress. They pointed to the fact that the real evidence of duress came in the threats that immediately preceded the shootings. They pointed to the large body of evidence that will be led by the Crown that will otherwise support the proposition that Farhad Qaumi used violence and threats of violence to intimidate his cohorts into following his orders. The nature and extent of this evidence diminishes the importance of the leader boasting about the three previous killings. The Crown observed that the evidence of Farhad Qumi boasting of the three previous murders did not constitute a direct threat connected to the offences with which Mr Kalal stands charged. The written submission on the admissibility question concluded:

7. [41]

   The Crown also submitted that the defence of duress cannot run when the accused voluntarily joined a criminal group or (more correctly I think) when an accused voluntarily put himself in a position where he may be subject to illegal compulsion. Reliance was placed on R v Nguyen [2008] 181 A Crim R 72 at [28], [40], R v Baker & Ward [1992] 2 Cr App R 335 and R v Hasan [2005] UKHL 22; [2005] Cr App R 22. However, in the course of argument, the Crown correctly acknowledged that it was too early to make a determination as to whether the defence of duress should be left to the jury.

8. [42]

   In oral submissions, the Crown Prosecutor maintained the position that the probative value was diminished by the various matters referred to in the written submissions. It was submitted that the probative value to the issues in Mr Kalal’s trial (duress and intention) is “negligible” or “slight”.

9. [43]

   In written submissions the Crown indicated that it opposed “any application for separation of any accused from the trial whether the evidence sought to be adduced by Kalal as to Farhad Qaumi boasting of three killings is admitted or refused”. However, in oral submission the Crown indicated that it may revisit the question if I determined that Mr Kalal was entitled to elicit some or all of the evidence indicated in the notice setting out the particulars of the evidence.

Section 135 Evidence Act

1. [44]

   The application of s 137 of the Evidence Act led to the earlier ruling that the evidence was inadmissible. Section 137 applies to evidence “adduced by the prosecutor”. Because the evidence now under consideration is to be adduced by a co-accused, s 137 does not apply. Section 137 of the Evidence Act provides:

2. [45]

   Section 135 provides:

3. [46]

   While ss 135 and 137 both require an evaluation of the “probative value” and the prejudicial effect of the evidence under consideration, there are a number of relevant differences between the sections. First, s 137 is in mandatory terms – the court “must” exclude the evidence if it reaches the conclusion posited by the section. It is headed “Exclusion of prejudicial evidence in criminal proceedings”. By contrast, s 135 provides what is described in the heading as a “general discretion” and the section provides that the court “may refuse to admit” the evidence. Second, s 135 requires that the [danger of] prejudice “substantially outweighs” the probative value while the word “substantially” is absent in the terms of s 137.

4. [47]

   A question addressed in argument was the scope of the word “party” in section 135. On a restrictive view, and on the basis that there a number of individual trials being conducted together, the parties are Mr Kalal and the Crown. The broader view, and the view I accept, is that in a joint criminal trial each of the accused is “a party” for the purpose of the application of s 135.

Relevance and Probative Value

1. [48]

   There is no dispute that evidence that Farhad Qaumi boasted in Mr Kalal’s presence that he had previously killed three people is relevant to the issues of duress and intention. It could rationally affect an assessment of a fact or facts in issue. Those facts are (i) whether Mr Kalal was so affected by the alleged threats made immediately before the two shootings that it might be found that he acted under duress and (ii) whether he participated in the shootings but deliberately fired his weapon in such a way that he did not kill or inflict serious injury on the targets of the shooting. In that latter respect his case will receive some support in the evidence of Witness D whose interview of 4 March 2013 recounted a conversation on the way to the Chokolatta shooting where the participants complained about the Qaumi’s giving orders and suggested “We’ll just shoot at the car and drive off” and that they were “planning to just like run off.” [15]

2. [49]

   An assessment of the probative value of this evidence (that is, the extent to which it could rationally affect the assessment of the probability of the existence of a fact in issue) is more complicated and controversial. The fact in issue concerns Mr Kalal’s state of mind. The task must be approached by assuming that the jury will accept the evidence and not by reference to potential unreliability of the witnesses who are to give the evidence: IMM v The Queen [2016] HCA 14.

3. [50]

   It seemed to be suggested (by counsel for Jamil Qaumi) [16] that the evidence might affect an assessment of the factual dispute between Mr Kalal and Jamil and Farhad Qaumi as to whether threats were issued immediately prior to the two shooting in which Mr Kalal participated. If it has any relevance to that issue, its probative value is slight. The fact (assuming it to be) that Farhad Qaumi boasted to the group of committing previous killings does little to inform a rational assessment of the question of whether the specific threats were issued shortly before the two shootings.

4. [51]

   However, the probative value of the evidence to Mr Kalal’s state of mind is greater. I do not accept the Crown’s submission that its probative value to that issue is slight or negligible. However, I do not find the probative value of the evidence to be substantial or significant, to adopt terms used in the course of argument. This is so for a number of reasons.

5. [52]

   First, as explained in R v Qaumi & Ors (No 6), there is a significant body of evidence to be led by the prosecution that supports the proposition that Farhad Qaumi used violence and threats of violence to intimidate and control other members of the BFL Blacktown. Those matters were set out at paragraph [13] of the earlier judgment in the following general terms:

6. [53]

   As I said in R v Qaumi & Ors (No 6) at [14]:

7. [54]

   In addition to those matters, Mr Kalal’s case is that he was aware of the killing of Mahmound Hamzy on 29 October 2013 and the shooting of Michael Odisho on 3 November 2013. [17] The defence case particulars (MFI 25) states:

8. [55]

   The precise extent of his knowledge is not clear but those events occurred on 29 October 2013 and 3 November 2013 and will be subject to evidence adduced by the Crown to establish counts 1-6. Based on the opening statements of counsel for Farhad Qaumi and Jamil Qaumi, it appears that the group’s involvement in those shootings will not be disputed. [18] Those shootings, and Mr Kalal’s knowledge of them, arose within days of the Zakaria and Chokolatta Café shootings.

9. [56]

   It is also the case, as submitted by the Crown, that the critical issue in Mr Kalal’s case appears to be whether the threats were made by Farhad and Jamil Qaumi shortly before Mr Kalal participated in the Zakaria and Chokalatta Café shootings. Further, the temporal proximity between the boasts of three prior killings and those shootings is unclear other than the fact that they were made at some time between mid-August 2013 and late October 2013.

10. [57]

    In the context of all of these matters, I am unable to accept Mr Clarke’s submission that the boasting of three previous killings at some non-specified stage in the previous weeks or months is the “very bedrock” of the belief upon which Mr Kalal’s defence is based. [19] I do accept that the evidence has more than “slight” or “negligible” probative value, but the extent to which the evidence has the capacity to impact on an assessment of the facts is not as significant as submitted on behalf of Mr Kalal.

Prejudicial impact in the case of the other accused

1. [58]

   I accept the submissions of Mr Stratten SC on behalf of Farhad Qaumi that the introduction of evidence that Farhad Qaumi boasted about committing three previous murders and getting away with them creates a danger of unfair prejudice in his case. I explained the nature of that prejudice, and why it was relevantly unfair, in R v Qaumi and Ors (No 6).

2. [59]

   A further aspect of unfairness arises as a result of the belated raising of this issue. In the course of the separate trial applications (argued on 8-10 December 2015 and decided on 3 February 2016), Farhad Qaumi eschewed any application to be tried separately from any of his co-accused. His application may have been different had he been aware that Mr Kalal intended to raise the defence of duress and to elicit evidence of the kind under consideration in doing so. I accept that this aspect of the unfairness might be cured by ordering, at this stage of the proceedings, a separate trial of Mr Kalal. However, whether that remedy is an appropriate one must be considered in the light of a number of other relevant factors to which I will ultimately turn.

3. [60]

   Mr Clarke emphasised that he does not seek to establish that Farhad Qaumi in fact committed previous killings and successfully defended the charges. All that he seeks to establish is that Farhad Qaumi boasted of those matters and that he showed the other members (presumably including Mr Kalal) photographs and items from the Internet to support his claims. The use of the evidence would be limited and the jury could be directed accordingly. However, it is submitted by Senior Counsel (and I accept) that Farhad Qaumi was in fact found not guilty by a jury of two charges of murder on the basis of self-defence. The showing of the Internet items and photographs to the group tends to support the fact of the killings rather than the mere boasting of them. The third murder was apparently subject to an order by the Director of Public Prosecutions that there be no further proceedings on the basis of insufficient evidence. Farhad Qaumi is entitled to the “full benefit of the acquittal” of the two murder charges: see for example Garrett v The Queen [1977] HCA 67; 139 CLR 477. But the question, if this evidence is introduced by a co-accused, would be a tactical one. Farhad Qaumi relies on what was said in R v Qaumi (No 6) at [17]:

4. [61]

   The same reasoning would apply if Mr Kalal introduces the evidence. Further, the forensic choices are now even more complicated by the fact that Farhad Qaumi has opened the case by raising the question of self defence. If he elected to establish that he had been acquitted, and sought to rely on the full benefit of that acquittal, it may (or would) emerge that he raised the same defence in respect of two of the earlier killings. Further, the evidence of his boasts as to the third alleged murder are quite gruesome (chopping up the Turkish man).

5. [62]

   As to whether the prejudice could be cured by direction, Mr Stratten SC relies on the following comments in R v Qaumi & Ors (No 6) at [18]:

6. [63]

   Different considerations apply where the evidence is adduced by one accused although the issue to which the matter is directed (Farhad Qaumi using his reputation for violence to overbear the will of the other members of the BFL Blacktown) is similar to the use to which the Crown sought to elicit the evidence. I have given further consideration as to whether the prejudice might be cured by direction to the jury as to (i) the limited use to which the evidence might be put, (ii) the fact that the evidence is not led to prove the truth of the allegations, (iii) the fact (if the issue was raised) that Farhad Qaumi is entitled to the full benefit of the acquittals and (iv) directing the jury that the evidence may only be used only in Mr Kalal’s case on the issues of duress and intention. I have come to the same conclusion as I did in rejecting the evidence in the Crown case – the prejudice to Farhad Qaumi cannot be cured by direction.

Decision on admissibility

1. [64]

   Shortly before conclusion of argument on these issues, I became aware of two judgments of Bellew J in trial proceedings that have reached the stage where one of the accused in giving evidence: see R v Rogerson & McNamara (No 3) [2015] NSWSC 965 and R v Rogerson & McNamara (No 45) [2016] NSWSC 452. In each case, his Honour made variations to the non-publication orders to allow the parties in the present case to have access to the judgments. The Crown raised the former decision in the context of the suggestion that the trials of the accused now be separated. The latter decision has some relevance to the present application to exclude part of the evidence upon which one accused relies to lay the foundations for a defence of duress.

2. [65]

   In R v Rogerson & McNamara (No 45) Bellew J decided that the accused McNamara would not be permitted to give evidence that Rogerson boasted that he was responsible for five earlier killings. At [32]-[35], his Honour gave reasons why the probative value of the evidence was “limited”. This included the lack of precision as to the timing of the earlier boasts and that they took place “some months” prior to the events that gave rise to the duress. It also included the fact that “the real basis of the duress asserted by McNamara stems from a combination of seeing the deceased shot in cold blood, and the threat made by Rogerson immediately thereafter.”

3. [66]

   As Mr Clarke pointed out, that is a different situation to that which prevails here. In particular, Mr Kalal did not see the perpetrator of the duress shoot somebody in cold blood. However, on his case (as articulated in argument and set out in the particulars), Mr Kalal was aware of the killing of Mahmoud Hamzy and the shooting of Michael Odisho in the days leading up to the threat that he asserts caused him to involve himself in the Zakaria and Chokolatta Café shootings. Further, while the timing of the boasts is more temporally proximate than they were in Rogerson and McNamara, there is a similar lack of precision in the timing of the boasts and they occurred sometime (perhaps weeks, perhaps two months) earlier. Again, the threats made immediately prior to the shootings are the “real basis of the duress”. In support of the impact that those threats had on Mr Kalal, there is a large body of evidence of earlier instances of violence and intimidation perpetrated by Farhad Qaumi in order to intimidate and control the other members of the BFL Blacktown. It is significant that Jamil Qaumi was the author of the immediate threats and also a participant in the Hamzy killing a week earlier.

4. [67]

   While the decision of Bellew J is distinguishable on its facts and is not binding, his Honour’s reasoning reinforces my conclusion that restricting the evidence to be adduced by Mr Kalal will not unduly fetter his ability to mount the defence that he seeks to run. There will be ample evidence, adduced by the prosecution, that will support his case and the belief that it is anticipated he will assert.

5. [68]

   In term of the balancing exercise and discretion that arise under s 135 I have concluded that the probative value of the evidence in Kalal’s case is substantially outweighed by the danger of unfair prejudice in the cases of Farhad and Jamil Qaumi.

6. [69]

   Accordingly, I rule the evidence to be inadmissible in the joint trial.

Separation of trials

1. [70]

   Because the evidence has been ruled to be inadmissible in the joint trial, the applications by Farhad, Mumtaz and Jamil Qaumi for Mr Kalal to be tried separately do not arise.

2. [71]

   However, while Mr Kalal has made no further application for a separate trial, Mr Clarke has invited me to consider my power to separate his trial of my own motion. There is no doubt that I have the power to do this and to make the orders “at any stage during the trial”: see s 21 of the Criminal Procedure Act.

3. [72]

   It was submitted that if I came to the conclusion that the exclusion of the evidence would result in Mr Kalal receiving an unfair trial, I should exercise my power to order a separate trial. It may be more correct to say that I would exercise that power if I was of the view that he would be “prejudiced or embarrassed” in his defence or if there is some “other reason” to separate the trials: see the terms of s 21(2). This may be an irrelevant distinction – if I was satisfied that Mr Kalal could not receive a fair trial if the evidence is excluded, I would readily form the view that he may be prejudiced in his defence or that there was some other reason why it is desirable for him to be tried separately.

4. [73]

   The applicable legislation, case law and many of the relevant principles were set out in my judgment on separation delivered on 3 February 2016: R v Qaumi & Ors (No 3) at [83]-[97] and [120]-[136]. Given that I have released the jury for around a week in order to determine these issues, there is insufficient time to set out the relevant statutory and case law again. I am guided by those well-established principles discussed in the earlier judgment.

5. [74]

   A number of factors must be considered in determining the question of whether the court should order that Mr Kalal be tried separately.

6. [75]

   It is accepted that if Farhad and Jamil Qaumi were not parties to the trial, Mr Kalal would be permitted to lead the evidence of the boasts about the earlier killings. That is significant factor in favour of separation.

7. [76]

   However, there are many factors pointing in the other direction. In particular, Farhad and Jamil Qaumi dispute the allegation that they made the threats upon which Mr Kalal’s defence of duress is predicated. It also appears that the evidence of the boasts relating to previous killings is disputed. It is appropriate that the same jury hear all of the evidence and cross-examination relevant to a resolution of these factual disputes. It is not strictly a “cut throat” defence but, on the issue of duress, there are substantial factual disputes that should be resolved by a single jury.

8. [77]

   Further, while Mr Kalal is only charged with a handful of the offences on the indictment, those allegations involve him acting jointly with his co-accused. The general rule is that co-offenders should be tried together.

9. [78]

   Next, there is a very large body of common evidence. In particular, a number of the informant witnesses would be required to give evidence in both trials. It is at least desirable that they are not required to give evidence on multiple occasions (or at least on more occasions than is necessary to provide each of the accused with a fair trial).

10. [79]

    Not only that, but it is also clear from the submissions that substantial attacks will be made on the credibility of those witnesses by Farhad, Mumtaz and Jamil Qaumi. The jury called upon to determine the defence to be mounted by Mr Kalal should have the benefit of hearing the cross-examination to be mounted on behalf of the Qaumi brothers.

11. [80]

    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: see R v Singh, unreported Supreme Court of New South Wales (Fullerton J) 10 November 2011 and R v CE [2005] NSWCCA 326. However, as I have emphasised, neither Farhad Qaumi nor Jamil Qaumi press a separate trial based on the fact that Mr Kalal is running a defence of duress that will prejudice or embarrass them in a joint trial. Cases where duress results in separation generally arise on the motion of the party said to have been responsible for placing the other accused under duress.

12. [81]

    I have not come to the conclusion that Mr Kalal’s trial will be unfair as a result of the exclusion of this evidence. Nor do I conclude that he will be prejudiced or embarrassed in the conduct of his defence. Taking all of those matters into account, I decline the invitation to make orders for separation and/or postponement of Mr Kalal’s trial of my own motion.

13. [82]

    For those reasons, I make the following orders and evidentiary rulings:

    1. (1)

       The evidence that Mr Kalal seeks to adduce, as set out in the particulars (MFI 25) and Ex VD 25, 26 and 27, is inadmissible.

    2. (2)

       The applications for separate trial by Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi do not arise.

    3. (3)

       I decline to make an order for separation or postponement of Mr Kalal’s trial of my own motion.