R v Qaumi & Ors (No 58)

At the close of the prosecution case Farhad Qaumi and Mumtaz Qaumi submitted that the jury should be directed to return a verdict of not guilty in respect of count 18 which is in the following terms:

The trial involves five accused charged, in various combinations, with a total of 24 offences and has been proceeding for well in excess of four months. There have been several other applications for directed verdicts and judgments in respect of each have been published at the same time as this judgment: R v Qaumi & Ors (No 57) [2016] NSWSC 1157; R v Qaumi & Ors (No 59) [2016] NSWSC 1159 and R v Qaumi & Ors (No 60) [2016] NSWSC 1160.

In respect of count 18, the case against both accused is that they directed two other people (Witness L and Witness M) to carry out a “drive-by” shooting at the residential premises of the mother of a rival gang leader. Those premises were located at 142-150 Greenacre Road, Greenacre. This is a complex consisting of a number of townhouses situated on either side of an elongated U-shaped driveway on the southern side of Greenacre Road. The case against each accused consists largely of the evidence of Witnesses L and M. Evidence was also given by a number of people who were in the vicinity of the shooting and a body of physical evidence consisting of plans, photographs and ballistics material.

The background to the Greenacre shooting is that Farhad Qaumi was the leader of a criminal gang known as the Blacktown Chapter of the Brothers for Life (BFL Blacktown). Mumtaz Qaumi was the second in charge of that organisation. A man called Mohammad Hamzy (also known as Little Crazy) was the leader of the Bankstown Chapter of the Brothers for Life (BFL Bankstown). In late October 2013, information came to Farhad and Mumtaz Qaumi that Mohammad Hamzy had taken out a contract on the life of Farhad Qaumi. This information came from a person known as Witness M. Further, it is the prosecution case that Farhad Qaumi wanted to take over the “turf” controlled by BFL Bankstown for the purpose of expanding his criminal empire.

There is a dispute in the trial as to the motive for what followed but it is common ground that on 29 October 2013, at the direction of Farhad Qaumi, Witness M and three members of the BFL Blacktown went to the home of Mohammad Hamzy and attempted to murder him. In the course of that bungled enterprise, Mahmoud Hamzy was killed and Omar Ajaj was injured while Mohammad Hamzy escaped without injury. There are a number of charges on the indictment arising out of that event (counts 1-3).

There followed a series of other shootings directed at the membership of the BFL Bankstown. This included the attempted murder of Michael Odisho on 3 November 2013 (counts 4-6), the attempted murder of Masood Zakaria on 4 November 2013 (counts 7-9) and a shooting in the vicinity of the Chokolatta Café in Bankstown on 7 November 2013 (counts 10-16).

After that series of shootings, a former member or associate of the BFL Blacktown, a man called Sina Mirzaei, was a target in a shooting allegedly perpetrated by the BFL Bankstown. The prosecution case is that the shooting at Greenacre on 29 November 2013 was in retaliation to the shooting of Sina Mirzaei.

The critical evidence in the present application comes from Witness L and Witness M. Witness L was a member of the Brothers for Life Blacktown and was involved in the original attempted murder of Mohammad Hamzy at Revesby Heights in October 2013. Witness M is a woman who had connections to both sides of what appears to have been an intense, if brief, gangland war. She had connections to the Hamzy family going back many years when she was involved in a relationship with the original founder of the Brothers for Life organisation, a notorious criminal called Bassam Hamzy. Mohammed Hamzy is Bassam Hamzy’s nephew.

As at 2013, Witness M remained in contact with the Hamzy family and knew a number of members of the BFL Bankstown. Through those connections she came to know the Qaumi brothers and a number of members of the BFL Blacktown. There is some suggestion, of no present relevance, that she had a romantic involvement with Farhad Qaumi. Witness M knew the residential addresses of many relevant people and was, on both the prosecution and defence cases, instrumental in a number of the shootings that took place between October and late November 2013. She drove the shooters to Revesby Heights on the night of the Hamzy murder. She was involved in a reconnaissance of the Chokolatta Café on the night of that shooting. She also drove Witness L to the townhouse complex on Greenacre Road because she knew where Mohammed Hamzy’s mother lived.

There is no dispute that Witness L discharged a firearm several times while in the vicinity of the Unit complex at 142-150 Greenacre Road. Several witnesses gave evidence of this and there was bullet damage to a garage at Unit 28 and to a car outside of Unit 29. Anthony Elkadi was struck by a bullet while standing outside of Unit 29 and blood was located outside Unit 28. Several fired cartridges were found in the area and ballistics examination determined that these were from a .45 calibre weapon that was also used in the Hamzy shooting.

Mrs Hamzy lived in Unit 18. There is no evidence that her premises were fired upon or struck by any bullets.

To put the current application in its simplest form, the accused submit that the crime or criminal enterprise that the Crown alleges was procured or directed by the two accused charged in count 18 was never completed. Rather, having arrived at the scene, Witness L decided that he would not shoot at Mrs Hamzy’s house as directed by the accused. Then, at Witness M’s instigation and urging he carried out a different shooting, that is, the shooting of Mr Elkadi. Accordingly, it is submitted, that the crime that is charged in count 18 and in relation to which Farhad and Mumtaz Qaumi were alleged to be principals in the third degree (or accessories before the fact), was never completed. The crime that was completed was a different crime and not one in relation to which the Qaumi brothers have any criminal liability either as accessories or by application of the principles of common purpose or joint criminal enterprise.

To understand those submissions it is necessary to consider in a little more detail the evidence that Witnesses M and L gave in the trial.

Witness M gave evidence of a meeting at a park in Villawood with “Mumtaz, Witness L and Farhad” on 29 November 2013:

Witness L and Witness M then travelled by car to Greenacre. Her evidence continued:

Witness L’s evidence was somewhat different. He said that there was a meeting at his house in Penrith with Farhad and Mumtaz Qaumi and gave the following version of events:

Witness L said that there was a further discussion at a park in Granville:

Witness L said that Farhad Qaumi gave him a gun that was wrapped in a tea towel [5] and gave the following evidence of what occurred when they arrived at Greenacre:

Witness L was cross-examined by Senior Counsel for Farhad Qaumi as follows:

He was also cross-examined by Senior Counsel for Mumtaz Qaumi:

Farhad and Mumtaz Qaumi submitted that this evidence demonstrates the following:

Accordingly, it is submitted that there is no evidence capable of establishing the crime charged in count 18. Reliance was placed on the length of time (estimated by the witness to be around half an hour) between the decision not to complete the “drive by” shooting of Mrs Hamzy’s townhouse and the distance between, or different location of, the townhouse that was actually struck (No 28) and the townhouse that was supposed to be the target of the shooting (No 18). There is no clear evidence of the distance between the two townhouses, but the evidence of police officers who attended the scene was that units 18-25 were on the eastern side of the driveway while units 26 to 30 were on the western side. [8] The evidence of Witness L was that unit 18 was the last townhouse from the end (that is, looking at a number of photographs tendered in evidence, furthest from Greenacre Road at the top of the “inverted U” that is the driveway to all of the townhouses). The same photographs suggest that unit 28 and 29 were much closer to Greenacre Road. [9]

Against those submissions are a number of factors:

In other judgments published today, I have referred to the fact that there are currently challenges before the High Court to the accepted Australian doctrine usually referred to as “extended joint criminal enterprise”: see R v Qaumi &Ors (No 57) [2016] NSWSC 1157 at [28]. On the present application, as on the other no case submissions determined on this day, counsel has preserved their clients’ position by challenging the correctness of the authorities currently binding upon me. However, it is agreed that I must apply the law as it stands. The doctrine is set out in other judgments but it is worth setting out again the following passages from McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 at 113-114:

Later at 117, the Court said:

The issue of whether there is a case to answer on count 18 is not an easy one to resolve. However, the question of whether the criminal venture agreed upon, or instigated by, Farhad and Mumtaz Qaumi had come to an end by the time the shooting actually took place is a question of fact. Likewise, it is a question of fact whether the shooting that Witness L actually carried out fell within the scope of the original enterprise, or was incidental to it, and whether the Qaumi brothers contemplated the possibility that Witness L might shoot at another townhouse within the same complex while targeting people in the vicinity Mrs Hamzy’s home.

I have concluded that there is evidence capable of establishing those matters although I consider the case on this charge to be relatively unconvincing. However, I must take the Crown case at its highest and it has been held by the High Court in Doney v The Queen [1990] HCA 51; 171 CLR 207 at 214:

Further, the Court of Criminal Appeal long ago rejected the proposition that a trial Judge could take a case away from a jury on the ground that a view was formed that a conviction based on the evidence would be unsafe or unsatisfactory – that is a question for a Court of Criminal Appeal if the jury convicts: R v R (1989) 18 NSWLR 74. Where a case is based on circumstantial evidence, it is for the jury (not the trial judge) to determine whether there is an inference inconsistent with the guilt of the accused: R v JMR (1991) 57 A Crim R 39.

On one view, the criminal enterprise in relation to Farhad Qaumi and Mumtaz Qaumi came to an end outside the premises at Greenacre when Witness L decided that he would not carry out a particular shooting. However, on another view, the shooting that was in fact carried out was carried out as a result of the directions given by Farhad Qaumi. In my view, it is for the jury to determine whether the criminal enterprise came to an end and whether a new enterprise undertaken by Witnesses L and M commenced. It would be open to the jury to be satisfied that the shooting carried out was within the scope of the joint criminal enterprise or at least an undertaking that was incidental to the original scope of the enterprise. As the Crown put it, in view of the history of innocent bystanders being shot in the course of the shootings that had preceded the Elkadi shooting, it is open to the jury to find that it was within the contemplation of Farhad Qaumi and Mumtaz Qaumi that somebody or some house other than the agreed upon target would be shot at by Witness L once he got to the scene.

For those reasons, the applications by Farhad Qaumi and Mumtaz Qaumi for a directed verdict of not guilty on count 18 are refused.