Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R

BATHURST CJ: I have had the advantage of reading the judgments of Hoeben CJ at CL and Johnson J in draft.

So far as the conviction appeals are concerned, I agree with the orders proposed by Hoeben CJ at CL that the appeal by Farhad Qaumi against his conviction on count 18 and the appeal by Mumtaz Qaumi against his conviction on counts 9 and 18 be allowed but the conviction appeals otherwise be dismissed. I also agree with his Honour’s reasons for reaching this conclusion.

I should indicate I have conducted my own review of the evidence as a result of which I have concluded it was open to the jury in the sense described in authorities such as M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 to reach a verdict of guilty on those counts in respect of which the appeal against conviction has been dismissed.

So far as the sentence appeals are concerned, I agree with the orders proposed by Johnson J for the reasons given by him.

HOEBEN CJ at CL:

A summary of the charges brought against the Qaumi brothers and the outcome is as follows:

The various counts can be conveniently grouped as follows:

The Crown case can be briefly summarised. Farhad Qaumi was alleged to have been the leader of a criminal organisation, the Brothers for Life (BFL) Blacktown chapter. On 28 October 2013, he was told that Mohammed Hamzy (also known as “Little Crazy” or “LC”), the leader of the Bankstown chapter of the BFL was planning to kill him and had attempted to do so in the recent past. Farhad Qaumi directed other members of his group to kill Mohammed Hamzy. However, they in fact killed his cousin, Mahmoud Hamzy and wounded Omar Ajaj.

Subsequently on 2 November 2013, some members of the Blacktown BFL attended Star City Casino and Farhad Qaumi was informed that he was suspected of arranging the attempted killing of Mohammed Hamzy. The Crown case was that after the group left the Casino, some of them including the applicants, Witness J and Witness L met in a park and Farhad Qaumi gave instructions for a number of members of Mohammed Hamzy’s group to be shot. The names mentioned of people to be shot included Omar Ajaj, Michael Odisho, Masood Zakaria and Khaled Hamzy.

In the days that followed, members of the applicants’ group shot Michael Odisho (on 3 November 2013). On 4 November 2013, they attempted to shoot Masood Zakaria but instead shot his sister, H. On 7 November 2013, there was a shooting at the Chokolatta Café Bankstown. (There was a directed verdict of not guilty in relation to Farhad Qaumi for the counts arising from this shooting.) On 29 November 2013, there was a shooting at Greenacre Road, Greenacre. It was alleged that Farhad and Mumtaz Qaumi had given instructions for the house of the mother of Mohammed Hamzy to be shot at, but the house which was shot at was a different house in the same street.

There was no appeal pressed by the applicants against the convictions on Counts 1-3. There was no appeal by Farhad Qaumi from his conviction on Count 2 of the second indictment. There were appeals from the convictions for Counts 4, 5, 7, 9, 18, 19, 20, 21 and 22 by Farhad Qaumi. There were appeals from the convictions for Counts 4, 5, 9, 10, 11, 13, 15, 18, 20, 21, 22 and 23 by Mumtaz Qaumi. There were appeals from the convictions for Counts 4, 5, 7, 9, 13, 15, 20, 21 and 22 by Jamil Qaumi.

The ground of appeal in each case was that the verdicts of guilty for those counts in respect of each applicant were unreasonable and could not be supported having regard to the evidence.

The applicants relied upon the statements of principle in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 where the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said at 493:

The plurality continued at 494-495:

The Crown did not take issue with the principles relied on by the applicants. In addition, the Crown relied upon Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 where Hayne J (with whom Gleeson CJ and Heydon J agreed) said at [113]:

The Crown also relied upon the following statement of principle from The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]:

Although there is no longer an active conviction appeal by any of the applicants in respect of Counts 1-3, in order to understand the evidence of the shootings, which are the subject of this appeal, it is necessary to understand the background to the first shooting, which resulted in the killing of Mahmoud Hamzy and the events leading up to it. This provides the context for what subsequently occurred.

The Crown case was that the applicants were members of the Blacktown chapter of the BFL. Farhad Qaumi was the leader of the chapter, Mumtaz Qaumi was the second in command and Jamil Qaumi was third in command and the “enforcer” for the chapter at the time of the shootings. There was a considerable body of evidence to support the leadership role of the applicants and it was well open to the jury to make that finding. The Crown case was that BFL Blacktown was a criminal organisation which made money from criminal activities and in particular, the sale of drugs and stand over activity. The events which led to the killing by shooting of Mahmoud Hamzy began with a series of meetings on the day of the shooting, 28 October 2013.

Witness J gave evidence that on 28 October 2013 on the way to the “Anytime Fitness” gym, he and Farhad Qaumi saw Mohammed Hamzy getting out of his Maserati near “Wafflelicious”, a fast food outlet. He said that he noticed that Mohammed Hamzy appeared to be a bit shocked to see them.

Witness M, while not being a member of the BFL organisation, was familiar with both the Blacktown chapter and the Bankstown chapter. The reliability of her evidence was heavily challenged in the trial and warnings were given by the trial judge about her reliability. In this appeal, the Crown expressly eschewed reliance upon the evidence of Witness M unless that evidence was corroborated.

Witness M gave evidence that on 28 October 2013, she was driving her mother to a barbeque when she saw Farhad Qaumi outside the Anytime Fitness gym at Parramatta. Farhad Qaumi signalled her to pull over which she did. Farhad Qaumi told her to drop her mother off at the barbeque and to come back.

Witness M gave evidence that she had spoken with her ex-husband the day before and that he had told her to tell Farhad to be careful because “LC was after him”. She told Farhad this and his response was “I’m going to get him anyway but this gives me an excuse”. She said that Farhad Qaumi called Jamil Qaumi over and then Witness J and repeated to them what her ex-husband had told her.

Witness L said that he and Mohammed Kalal went to the gym at Parramatta to meet up with Farhad Qaumi and Witness J. He said that Farhad was talking with Witness M and Witness J for about half an hour outside the gym. He did not hear the conversation but he said that Farhad appeared to be getting angry.

Witness J gave an account of the meeting at Anytime Fitness which was different from that given by Witness M. He said that Witness M turned up at Anytime Fitness and had a conversation with Farhad Qaumi for about five to ten minutes which was too far away for him to hear. Farhad Qaumi then told him to “come over and hear this”. In cross-examination, Witness J said that he did not see Witness M get out of any car and that the conversation was on the footpath. Witness M said that she had received information from a person called “H” that Mohammed Hamzy had put a contract out for someone to kill Farhad Qaumi. Witness J pointed out that Mohammed Hamzy was under investigation by police for murder so he would be locked up soon.

Witness J gave more detail about this conversation. He agreed that Witness M said that she had been told that $150,000 had been offered to Mustafa Mariam to murder Farhad Qaumi. He agreed that Farhad Qaumi appeared very concerned and alarmed by this information.

According to Witness J, Witness M also told Farhad Qaumi about an earlier attempt on his life. She described an incident in which Mohammed Hamzy had been waiting at a McDonalds outlet with some associates preparing to kill Farhad Qaumi. She said that she was not actually present but obtained this information from sources within the Bankstown BFL. She was able to describe the persons Farhad Qaumi was with at the time, what he was wearing and what car he was driving. (These were apparently details which could only be supplied by someone who had actually been there.) The plan had been to kill Farhad Qaumi that day but it was not carried out, either because the police had been seen driving past or because Farhad Qaumi was accompanied by friends.

Earlier in his evidence, Witness J referred to the level of detail which Witness M was able to give about the incident. He said:

All those details were put to Witness M which she denied. She said that in effect her meeting up with Farhad Qaumi was a chance meeting. Witness M denied telling Farhad Qaumi that Mohammed Hamzy had been with some of his crew three days before on a mission to murder him and denied telling Farhad Qaumi that Mustafa Mariam had accepted Mohammed Hamzy’s contract to kill him.

Jamil Qaumi’s account of what Witness M said supported Witness J’s account. Jamil Qaumi said that Farhad Qaumi believed Witness M.

Witness L gave evidence that Witness M had arrived at Granville Park, where he was with Farhad Qaumi, Mumtaz Qaumi and Witness J. Farhad Qaumi asked Witness M to repeat what she had said to him earlier. She told the group that “LC” had been around the corner to “knock” or murder Farhad Qaumi.

Inspector Brown, the officer in charge of the investigation into these matters, gave evidence that Mohammed Hamzy was charged with the murder of another member of the BFL and that police thought that the threat to Farhad Qaumi was sufficiently believable for officers to attend his home on the Central Coast on 29 October 2013 and warn him that there was a credible death threat against him.

Following the meeting at Anytime Fitness, Witness J said that he and Farhad Qaumi went to a location near the Armani Restaurant where other members of the group were called. He said that while they were at that location, they saw Masood Zakaria and Michael Odisho. Witness L gave evidence that Farhad Qaumi told him that Witness M heard from her ex-husband that “the Lebbos wanted to kill him”. Witness L said that while at the Armani Restaurant, they bumped into Michael Odisho, Masood Zakaria, a “Turkish guy” and another man whom he did not know. They were all from the Bankstown chapter of the BFL. According to Witness L, Farhad Qaumi told him that Witness M had told him about “LC’s” earlier attempt to kill him.

Witness M gave evidence that a meeting was arranged at a park in Granville. She said that Farhad, Mumtaz, Jamil, Witness J and Witness L were present. She said that Farhad told her to tell the group what her ex-husband had told her. Witness M said that at that meeting Farhad Qaumi gave directions about shooting “LC” and as to who was to do the shooting, including ordering her to be the driver. Witness M said that she initially refused. The effect of her evidence was that she only agreed to become a driver after she was threatened by Farhad. She said that “I’m pretty sure he said my mum won’t have a daughter anymore if I don’t and that he would kill me” (T.2231, 25.5.2016).

It was submitted, on behalf of Farhad, that had such a threat been made by him she would have had a very clear memory of it.

Witness J also gave evidence about the meeting at Granville. His account was different from that of Witness M. He said that the three Qaumi brothers, Witness L and Nasser Zarshoy were present. Later, Witness M arrived. She repeated that Mohammed Hamzy was going to pay another guy to kill Farhad Qaumi. Farhad Qaumi asked other members of the group to kill Mohammed Hamzy and he assigned various roles to members of the group.

In his evidence in chief, Witness J said that Farhad Qaumi told him: “Yeah, pretty much run in the garage and shoot whoever is in there”. In cross-examination, it was put to him that Farhad Qaumi simply said that he wanted people to get Mohammed Hamzy. Witness J replied “Can’t recall”.

In cross-examination, Witness J agreed that Farhad Qaumi and Mumtaz Qaumi had too much “heat on them from the police” to go to the shooting. Witness J said that initially he was asked to be the driver when the attempt to kill Mohammed Hamzy was made. Witness J said that when he declined to be the driver, Witness M said “Oh, I’d rather go than him because he’s too weak”. She said something like “Yeah, all right, a hundred per cent I’ll do it”. She said “I’ll prove my genuine, like how genuine I am”.

Witness L gave evidence of the meeting at the park in Granville. He said that it was there that Farhad Qaumi asked Witness M to repeat what she had been told. Witness L’s account was very similar to that of Witness J. He gave a similar account to that of Witness J of Witness M describing a failed attempt to murder Farhad Qaumi by Mohammed Hamzy. Witness L said that she volunteered to be the driver.

It is not necessary to go into the detail of the shooting of Mahmoud Hamzy. Briefly stated, Witness M drove three people, including Witness L and Jamil Qaumi, each of whom was armed, to his home. The three shooters entered the garage and fired shots. Mohammed Hamzy escaped but his cousin, Mahmoud Hamzy, was killed and Omar Ajaj, a member of the Bankstown BFL, was wounded.

There was no dispute that on the night of 2 November 2013 the applicants with Witness J, Witness C, Witness I, Witness D and Witness L attended the Star City Casino. Their movements while there were recorded on CCTV. Farhad Qaumi had conversations with Ahmed Glebe and “Stretch” who were thought to be associated with the Bankstown BFL. Witness L saw the encounter between Farhad Qaumi on the one hand and Ahmed Glebe and “Stretch” on the other. Witness L said that he heard Farhad Qaumi deny that he had anything to do with the Hamzy shooting.

Witness I gave evidence that after Farhad Qaumi spoke to Ahmed Glebe and “Stretch” he appeared upset and angry. There was evidence that in these conversations they told Farhad Qaumi that he was suspected of being behind the Hamzy killing.

What was very much in dispute was whether or not there was a meeting in the vicinity of the Royal Botanic Gardens immediately following the departure from the Casino. Witness L gave evidence about a meeting which took place after they left the Casino in the vicinity of the Royal Botanic Gardens. He said that Farhad Qaumi, Mumtaz Qaumi, Witness J and himself attended that meeting while Jamil Qaumi went to drop someone else off.

Witness L gave this evidence:

According to Witness L, at this meeting of the four men Farhad Qaumi announced what effectively was a roll-call of people to be shot. Witness L gave this evidence:

The applicants submitted that this alleged meeting would be sufficiently memorable for a witness to have some memory of where he was when this conversation took place. They submitted that Witness L was given every opportunity to describe where he was when the meeting took place. They submitted that he was unable to do so and that his answers were vague and unhelpful.

The evidence of Witness L thus criticised was as follows:

The applicants submitted that Witness L was being deliberately vague so that he could avoid being caught out. They submitted that the meeting which he described could not have happened at the Royal Botanic Gardens because there was evidence that the gates are locked at night and Witness L said that he did not have to climb over a fence. They submitted that if he were on the west side of the Royal Botanic Gardens, he would have had a good view of the Sydney Harbour Bridge.

The applicants submitted that while there was no CCTV coverage of the purported meeting after the visit to the Casino, there was evidence of cars driven by members of the group out of the Casino carpark. Witness L said that he left the carpark in a car driven by Mumtaz Qaumi. The applicants challenged that evidence because CCTV showed Mumtaz Qaumi driving a white car with no passenger. There was a red car driven by Witness J with no passenger. Farhad Qaumi was shown driving a white RAV 4 with someone in the passenger seat, who did not appear to be Witness L. Jamil Qaumi was shown driving a silver Honda Accord with a passenger who (it was submitted) was Witness L. Witness L denied that he was the passenger in the car driven by Jamil Qaumi.

Witness L denied that he was driven from the Casino by Jamil Qaumi and denied that he and Jamil Qaumi stopped to have a meat pie and then Jamil Qaumi drove him home. Witness L denied the proposition that no meeting took place after he left the Casino (T.2967, 10.6.2016)

The applicants submitted that Witness L was very vague about times. He agreed that when he got home it was “pretty late”, “about 4.30, 5 o’clock”. Witness L could not remember how he got home after the alleged meeting which (it was submitted) had it occurred, would have been memorable.

Witness L volunteered that it might have been Witness J who drove him home. (It was common ground that Witness L did not drive, was unlicensed and did not own a car.) Witness L could not remember ringing Witness J to pick him up.

The applicants noted that when Witness J was asked in cross-examination whether he attended a meeting after leaving the Casino, he responded that he “did not recall”(T.4147, 5.7.2016). The applicants submitted that if Witness J had been present at the meeting, as described by Witness L, he would certainly have remembered it.

Witness D said that after the Casino meeting, Mumtaz Qaumi took him to North Sydney Railway Station on his way back to the Central Coast. Jamil Qaumi gave evidence that he left the Casino with Witness L and that they had a pie at Harrys Café de Wheels and then he drove him home.

The applicants challenged the reliance which the Crown had placed on telephone records and telephone signals received by cell towers. They referred to evidence from Mr Chang from Optus that the maps which he produced were maps of “probable cell tower coverage” rather than “possible cell tower coverage”.

Mr Chang agreed that topography was relevant to which tower would be the tower with the strongest signal and that in the CBD the topography was very complex because of the number of large buildings. He explained that the mathematical model used by Optus did not take into account individual buildings but simply used an “averaging system” for the model. Mr Chang agreed that because the signal travels more strongly over open water, telephone records might record a signal as being on the north side of the harbour when it was in fact on the south side. Mr Chang agreed that the diagrams of probable cell tower coverage were a very rough guide to the location of telephones.

The Crown called Jonas O’Brien from Vodafone on the same topic. He said that Vodafone used an “averaging” process for their mathematical models about cell tower coverage. Unlike Mr Chang, he was not prepared to agree that the diagrams were only a rough guide to the location of telephones but did agree that the maps only indicated the most probable area from which the call was made. He agreed that it was possible for a call which was made outside the area to connect with a tower associated with the area.

The reference to diagrams was a reference to the colour coded maps produced by Messrs Chang and O’Brien in which the coloured areas indicated cell tower coverage. The areas coloured blue, purple and gold related to the Royal Botanic Gardens and parkland surrounding them.

The applicants submitted that by reference to Exhibits 10Ms, 68 and 10Hs it could be seen that the location of the phones of Witness L and Witness J were not consistent with the timings of the meeting provided by Witness L. Cell tower records showed that at about 12.14am the phone associated with Witness L was in the light blue area described as “Wynyard West New A4 and C4” in Exhibit 10Hs. The applicants submitted that these calls were consistent with Farhad and Witness L simply driving around the city, not necessarily together, after leaving the Casino. The applicants noted that between 12.54am and 1am the phone associated with Farhad Qaumi was said to be within the area of probable coverage of the tower “Royal Bot Gard A-2” which is the dark green area in Exhibit 10Hs and the southern most area of the Royal Botanic Gardens. The applicants noted that a telephone call took place involving the phone associated with Witness J at 1.35am when the phone was at Granville. Yet on the Crown case, Witness J was present during the meetings. However, the applicants accepted that at 2.51am the phone associated with Witness J was in the area marked “Royal Botanic Gardens”. This could best be explained by Witness J leaving the Casino about midnight, going to Granville and then for an unexplained reason, returning to the city.

The applicants submitted that what the phone records did not do was place Witness L and Farhad Qaumi in the same tower coverage area at the same time at any time after leaving the Casino in the early hours of 3 November 2013. They submitted that what the phone records did establish was that Farhad Qaumi, Mumtaz Qaumi and Witness J were not in the same area at the time when Witness L claimed they were having a meeting at a location he could not identify in the early hours of 3 November 2013.

The Crown was able to establish that in at least one case, after the cars had left the Casino, one of the passengers had got out of the car in which he was travelling (which was that driven by Farhad Qaumi) and had got into the car driven by Witness C. The Crown was also able to establish that the evidence of Witness D was incorrect as to both the time that he left the Casino and with whom he left the Casino. His evidence was that he had been driven from the Casino by Mumtaz Qaumi whereas Witness C remembered driving him home from the Casino that night. Moreover, Witness D was observed by the police outside the Casino after 11.45pm and so could not have left the Casino in Mumtaz Qaumi’s car. The Crown submitted that this evidence from some of the drivers, together with the CCTV coverage of the cars departing from the Casino, did not exclude Witness L travelling with Mumtaz Qaumi or somebody else to the CBD as he asserted in his evidence.

The Crown accepted that Witness L was unable to identify the location of the two parks to which he was driven after leaving the casino. Significantly, however, he was able to say that the second park was next to a body of water and from which the Sydney Harbour Bridge and Sydney Harbour could be seen in the distance. Witness L described stairs which they descended and a concrete wall. The Crown further noted that although the Royal Botanic Gardens are surrounded by a fence, and are closed between 8pm and 7am, the fence does not enclose the whole of the public parkland in that area and that the road to Mrs Macquarie’s Chair is open 24 hours a day. Exhibit 11Q showed what was and what was not fenced within that area. The Crown submitted that the description given by Witness L for the second park would certainly fit that part of Mrs Macquarie’s Chair which at all times is accessible to the public. That area contains steps, is next to the harbour and there are places where the Harbour Bridge can be seen.

In relation to the criticism that Witness L was deliberately vague as to the location of the second park, the Crown submitted that it was significant that Witness L did not drive a motor vehicle nor did he know the city. At the time of the Hamzy shooting, he was living in Blacktown. He was driven to the two parks, rather than making his own way there, in the early hours of the morning when it was dark. It is also of significance that having an unscheduled meeting in a park for security purposes was a normal occurrence for members of the Blacktown BFL.

The Crown submitted that to criticise Witness L for his lack of ability to describe the locations of the two parks within which he, Farhad Qaumi and Mumtaz Qaumi spent some after leaving the casino, is to ignore the reality of a migrant living in Blacktown, who did not own a car nor have a driver’s licence and whose experience of the Blacktown BFL included meeting in a variety of parks and being driven to and from them by other gang members.

The Crown submitted that evidence from the telephone records suggested that Witness J, Farhad Qaumi, Jamil Qaumi and Witness L left the Casino at just after midnight on 3 November 2013. It noted that Farhad, Mumtaz and Witness L were Optus subscribers whereas Witness J was a Vodafone subscriber. The Crown noted that cell tower sites associated with the use of Farhad Qaumi’s mobile telephone were associated with the Royal Botanic Gardens A-2 cell site. Cell sites associated with the use of Witness L’s mobile telephone between 12.14am and 1.51am included the Royal Botanic Gardens D-1 and Royal Botanic Gardens B-1 cell sites. Probable coverage from the Royal Botanic Gardens cell site was mapped in Exhibit 10Hs based on material from the predicted probable coverage maps (Exhibit 10F). The colour coding was further explained in Exhibit 68.

Raymond Chang explained the concept of predicted probable coverage. Possible coverage from cell sites appears to be more extensive than the probable coverage. Accordingly, predicted probable coverage does not chart the limits of coverage from a cell tower.

Mr Chang agreed with the proposition that the diagrams/maps of probable cell tower coverage were a very rough guide to the location of a mobile telephone. The Crown submitted that no matter how rough the guide, Witness L’s mobile telephone records for that night and early morning suggest he was at least in the Sydney CBD and certainly not home in Blacktown. He was more likely to have been seen with Farhad Qaumi than with Jamil Qaumi simply because of the correlation between the cell sites associated with their mobile telephone use.

The Crown submitted that cell sites associated with the use of Farhad Qaumi’s mobile telephone between 12.16am and 1am placed him at least within the Sydney CBD. Farhad Qaumi telephoned Mumtaz at 3.20am. The cell tower locations of Farhad and Mumtaz with respect to that call are consistent with the two of them having been stopped separately by police near Roseville at 3.30am and by inference, when they were on their way home to the Central Coast. A telephone call by Witness J associated with a Vodafone cell site at the Royal Botanic Gardens was made at 2.51am at a time consistent with him being with Farhad, Mumtaz and Witness L at that time.

Jamil Qaumi, after leaving the casino, appears to have remained within the Sydney CBD making telephone calls that went through different cell sites to those associated with the telephone calls of Farhad and Witness L. Jamil Qaumi remained within the Sydney CBD until at least 2.59am. He made his last call that morning at 3.12am.

It was put to Witness L that he left the Casino with Jamil Qaumi, who drove him around the city before stopping near the harbour to buy some pies, after which Jamil Qaumi drove him home to Blacktown. Witness L denied that.

Jamil Qaumi gave evidence that he drove Witness L to his house in Blacktown and then drove to his sister’s house in Pendle Hill. The Crown submitted that this description of the night incorrectly reduced the time Jamil Qaumi would have had to spend with Witness L, i.e. at least three hours. The Crown submitted that this suggested, as Jamil Qaumi had to acknowledge, at least three hours of aimless driving around the Sydney CBD or a similar lengthy period consuming take away food. The Crown submitted that the jury were entitled to reject that possibility in the context of all of the available evidence with respect to the meeting.

Witness L said that Witness J was present during the time that he was in the two parks with Farhad and Mumtaz Qaumi. The Crown noted that Witness J’s telephone call at 12.15am went through a cell site at Pyrmont and was followed by two unconnected calls thereafter to Farhad Qaumi. At 1.35am Witness J’s mobile telephone accessed the internet through a cell site at Granville. At 2.51am a telephone call lasting 46 seconds from that mobile telephone went through a cell tower at the Royal Botanic Gardens. Jamil Qaumi made telephone calls to Witness J at 2.56am, 2.57am and 3.12am. At 3.35am the Granville cell tower site was again used by Witness J to access the internet. The Crown submitted that this was consistent with Witness J returning to his home from the casino, then going back to the CBD before travelling back to the west of Sydney.

The Crown submitted that when asked about being present at the meeting and responding that he could not recall, Witness J’s lack of memory might have arisen because there was no such meeting or he may not have been telling the truth or his trip to the city in the early hours of 3 November 2013 was unmemorable.

The Crown submitted that the jury would be in the best position to decide which version of events was the more likely. The Crown submitted that Witness J’s return to the city and his telephone call at 2.21am, associated with the Royal Botanic Gardens cell site, suggests that he spent some time, even a short time, together with Farhad Qaumi, Mumtaz Qaumi and Witness L. His travel between the west of Sydney and the Sydney CBD region certainly appears curious for such a late hour and for such a relatively short stay in the Sydney CBD. The Crown submitted that even if Witness J was not with Farhad Qaumi, Mumtaz Qaumi and Witness L, that does not contradict Witness L’s evidence concerning what Farhad Qaumi said while they were in the second park. The Crown submitted that it might be that Witness L was mistaken as to whether Witness J was present for the whole time that the meeting took place.

There is one thing which is clear. Witness L did not have access to a vehicle. His preferred method of travel was to be driven by one of the Blacktown BFL members. When he is shown to be in the CBD early in the morning of 3 November 2013, this raises the question of how he got there and how he was able to return home to Blacktown. There is no suggestion that he used a taxi or some other means of hired transport. The overwhelming inference is that one of the Blacktown BFL members drove him to the CBD and either that person or another member of the gang drove him home.

On the analysis of the telephone and cell tower material, it cannot be said that the evidence of Witness L should not be accepted because the scenario described by him could not have possibly occurred. Given the imprecise nature of the cell tower material, the discussion in the second park may well have occurred. It is certainly not precluded by the cell tower material. Ultimately, the resolution of the issue depended upon whether the jury accepted the evidence of Witness L. If they did, that evidence can be reconciled with the limited information available from both the cell towers and the mobile phone records.

I accept the Crown’s submissions on this issue. The question of whether or not Witness L was telling the truth concerning this meeting was a question of fact to be resolved by the jury. The jury were in a significantly better position to make that decision than is this Court. They had the opportunity of not only seeing and hearing Witness L give his evidence but of assessing other important witnesses such as Witness J. In those circumstances, it was well open to the jury to accept the evidence of Witness L in relation to the second meeting in a park after the departure from the casino. It could certainly not be said that in accepting the evidence of Witness L (as the jury obviously did) that they had acted unreasonably and that such a finding was not available on the evidence.

There was a broader challenge to the evidence of Witness L based upon what was said to be his lack of credibility.

The applicants submitted that Witness L received an extraordinary number of benefits for his plea of guilty and his assistance to the authorities. The applicants submitted that despite his admitted involvement in the killing of Mahmoud Hamzy, he was never charged with his murder or with conspiracy to murder or shoot with intent to murder Mahmoud Hamzy. He received a 60 per cent discount on his sentence for his plea of guilty and his assistance.

The applicants relied upon what was described in submissions as the “three way” conversation between Witnesses G and I on the one hand and Witness L on the other. This conversation occurred on 21 August 2014 when Witness L was held in a police station with Witnesses G and I. The applicants identified the following aspects of that conversation as indicating a lack of reliability and honesty on the part of Witness L.

Firstly, the applicants submitted that it was obvious from the conversation that by that date Witness L wanted to cause the maximum amount of harm to the Qaumis. The applicants submitted that it was clear from the three way conversation that the police had made it very clear to Witness L that it did not matter to them that he was one of the shooters in the Hamzy killing because the real target was Farhad Qaumi. This was confirmed by Witness L in his evidence.

The applicants submitted that it was clear from the conversation that Witnesses G and I were suggesting to Witness L that he tell the police a good story and say that he was forced by the Qaumis to act in the way that he did. The applicants submitted that Witnesses G and I were explaining in detail to Witness L the benefits of becoming an informer and co-operating with the police.

The applicants submitted that Witness L was quite prepared to tell lies to the police when it suited his purpose. They referred to his statement to the police in his first interview to the effect that Witness J had participated in the Hamzy killing when he knew that this was untrue.

The applicants submitted that Witness L was a witness who was prepared to tell deliberate lies to police implicating people in serious crimes who were to his knowledge not involved in those crimes. They submitted that he told police that Witness J was present at the Hamzy shooting and in fact fired a number of shots. He admitted that what he had told police about Witness J’s involvement in that killing were deliberate lies. He justified those lies by saying that Witness J was a cousin of Farhad Qaumi.

There are difficulties in seeking to focus upon unsatisfactory aspects of the evidence of a witness such as Witness L when the applicants, their co-accused and many of the significant witnesses and intended victims of the offences were criminals and members of either the Blacktown BFL or the Bankstown BFL and were themselves involved in serious offending.

Witness I had been a member of the Blacktown BFL. He and his brother, Witness G, had previously been members of the Parramatta BFL and had transferred to the Blacktown chapter together with Witness L. Witness I participated in the Odisho, Zakaria and Chokolatta Café shootings.

It was put, on behalf of the applicants, that because Witness I believed the Bankstown BFL suspected that he was involved in the Hamzy shooting, he had, of his own volition, decided to carry out the Odisho shooting in order to protect himself from possible retaliation. His brother, Witness G, who was arrested on 11 September 2013, had been the Blacktown BFL “enforcer” before his arrest.

There was no issue that Witness L was a member of the Blacktown BFL and had participated in the Hamzy and Elkadi shootings. There was no issue that he falsely implicated Witness J in the Hamzy shooting before nominating another person as the third shooter. The jury were well aware of this and had received appropriate warnings from the trial judge. There was no suggestion that the jury did not understand those warnings.

Reference has already been made to his conversations with Witnesses G and I. His meeting with G and I was arranged by police and the resulting conversations recorded by listening devices. In both conversations, the participants used colourful language to make their point. The police wanted all three to implicate the Qaumis. There is no doubt that Witnesses L, G and I were motivated by a hatred of the Qaumis and particularly Farhad Qaumi. Further it is plain that all three were motivated by self-interest in reducing their sentences and obtaining better prison conditions. In their conversations with Witness L, Witnesses G and I suggested that he allege that the life of his child was threatened in order to induce him to commit an offence. Significantly, Witness L did not excuse his commission of serious offences on the basis that he or his child had been threatened.

The Crown submitted that a lot of what Witnesses G, I and L spoke about when being recorded, is what one would expect from accomplices considering giving evidence on behalf of the Crown. They would need to consider the benefits that might flow to them, including better prison conditions that appear to be available to informer witnesses. They would also need to balance those matters against the risk of being found out as an informer while in prison.

The Crown submitted that while it was concerning that Witnesses G and I, in their conversation with Witness L, were seeking ways of reducing culpability by shifting blame, that was well known conduct by accomplices and the jury were warned about that by the trial judge.

The Crown submitted that the conversations involving Witness L did not create an obstacle to accepting the evidence of Witnesses G, I and L. The Crown submitted that like all informer witnesses, it was open for the jury to accept some or all of their evidence, taking into account the warnings given by the trial judge and whatever other support existed in the evidence.

Throughout the trial, the presiding judge provided the jury with comprehensive warnings concerning the “roll over” witnesses. Those warnings were given, not only during the summing up, but during and at the conclusion of the evidence of the informer witnesses.

An example of a typical warning is that given by his Honour at the conclusion of the evidence of Witness L and which is set out at T.3212.11, 16.6.2016:-

The Crown submitted that the same considerations and qualifications applied to all the “roll over” witnesses. Witness M was, or was alleged to have been, the instigator of the Hamzy and Chokolatta Café shootings. She was the source of information in the Odisho and Zakaria shootings as to where the targets lived or worked. She was subject to a considerable degree of criticism during the trial and the applicants’ submissions to this Court. As already indicated, in the appeal the Crown made its intention clear, i.e. not to enter into these issues. Rather, the Crown proposed to answer the primary complaint that the verdicts of guilty were unreasonable by relying upon evidence from witnesses other than Witness M unless her evidence was corroborated. The Crown submitted that there was a sufficient body of evidence to justify the applicants’ convictions aside from her evidence.

Witness A was a member of the Blacktown BFL. Witnesses I and L introduced him to the gang. He gave evidence of Farhad Qaumi’s control of the Blacktown BFL and said that the Blacktown chapter could not take action without his agreement and/or the agreement of his brothers.

Witness J was a cousin of the applicants. He was a member of the Blacktown BFL. He gave evidence that Farhad Qaumi said that he put fear into the members’ hearts and that they would therefore obey him. He did not directly participate in any of the shootings, although he had a role in the Hamzy shooting.

Witness C was a member of the Blacktown BFL. His role within the gang was performing the drug run. He was the driver for the Odisho and Zakaria shootings. He was not associated with the conversations in prison between Witnesses G and I on the one hand and Witness L on the other.

Witness B was Witness C’s cousin. He was a member of the Blacktown BFL. He first approached police in August 2013 and provided the Middle Eastern Organised Crime Squad with phone numbers, member names and information about the meeting on the day before the Chokolatta Café shooting.

Witness D was born in Afghanistan. He was a member of the Hazara ethnic group. He was 21 years old when he gave evidence in July 2016. He had been in juvenile custody in 2013 when he turned 18 years old. There he met Masood Zakaria through whom he joined the BFL. During the time he was a member of the Blacktown BFL, he lived in a hostel in Marrickville and paid his $50 levy to the Blacktown BFL from his Centrelink allowance.

Before Witness D gave evidence, the Crown Prosecutor provided the trial judge with a psychological report to assist if he needed to be advised of his right not to incriminate himself, pursuant to s 128 of the Evidence Act 1995 (NSW). Witness D had difficulty remembering conversations and the names of people often simply referring to them as “thing”. His description of how the shooting at the Chokolatta Café occurred indicated his inability to use concepts, such as left and right.

Witness D commenced to assist police by 13 March 2014. He played no part in the recorded conversations between Witnesses G, I and L.

While the transcript of Witness D’s evidence indicates the difficulty which he had as a witness, he gave evidence of certain incidents in which he was involved and of the participation of the Qaumis. The Crown submitted that he presented as a witness who lacked the guile to do otherwise than provide the unvarnished truth. Farhad Qaumi referred to Witness D as “staunch and a soldier” when he visited Mohammed Kalil and Nazir Akbari in custody. The Crown submitted that Farhad Qaumi’s motivation in relation to Witness D was to take advantage of and use for his own purposes the fact that he was young and, for the reasons set out, malleable.

Witness D had reported experiencing hallucinations to health professionals. The Crown submitted that because he had smoked ice since the age of 15, such an outcome was not surprising. The Crown noted that the reports of hallucinations had been to health professionals whom he saw while he was in custody as a juvenile at the beginning of 2013, before he was released and thereafter became a member of the Blacktown BFL. The Crown noted that there were no contemporary reports of hallucinations, a point made by the trial judge when he directed the jury, with respect to Witness D’s evidence, pursuant to s 165 of the Evidence Act. The Crown noted that this evidence was admitted as going to Witness D’s overall reliability but was not relied upon in closing addresses by any defence counsel.

In relation to each of the informer witnesses, the Crown accepted that they had issues concerning their reliability. However, the Crown noted that not all of what these witnesses said in their evidence was challenged. The Crown submitted that there was no reason in principle why their evidence, or at least parts of their evidence, could not be accepted. The Crown noted that s 164 of the Evidence Act abolished the requirement for corroboration and the need to give a warning or direction with respect of uncorroborated evidence. The Crown accepted that s 164 could not override factual issues relating to accomplices, including the consideration of whether collusion between them occurred. Nevertheless, the Crown submitted that the evidence of an accomplice who participated in the same criminal offence, but whose assistance to authorities appeared genuine and independent from other accomplices, should be able to be used to support the evidence of those other accomplices. I agree with these submissions.

The presiding judge warned the jury concerning the evidence of the informer witnesses. An example of a typical warning has already been given. Those warnings were not the subject of challenge by the applicants. The Crown submitted that it was therefore open to the jury, after taking those warnings into account, to accept in whole or in part the evidence of those informer witnesses despite the criticisms that had been laid against them. Accordingly, it was well open to the jury to accept parts of the evidence of Witness L and to reject others. In making that assessment, the jury had a considerable advantage over this Court.

Although Jamil Qaumi was not strictly speaking a “roll over” witness, he was by his own admission, involved in many of the shooting incidents. It was uncontroversial that he had returned to Australia on 11 September 2013, after being overseas for a period, and thereafter resided with his brother Mumtaz in Wyong.

Jamil’s evidence included that he had participated in the Hamzy shooting, which he explained as being in self-defence of his brother. It included burning the car that was used to drive the shooters to and from the Hamzy shooting. Jamil Qaumi declined to identify the third participant in the Hamzy shooting, other than himself and Witness L. One issue arising from the Hamzy shooting was whether Jamil or Witness L had shot Mahmoud Hamzy in the head with a .38 revolver.

It was also clear that Jamil Qaumi was either present or involved in the Odisho shooting, the Zakaria shooting and the shooting at the Chokolatta Café. It was put to him by the Crown that he was the person who was designated to make sure that “these jobs were done”. Jamil’s response was that “They’re just my friends and I was around” (T.6148.23, 25.8.2016). In accordance with the warning given by his Honour as to the potential unreliability of Jamil’s evidence, it was open to the jury not to accept his evidence when he sought to exculpate himself and his brothers in respect of any of the offences with which they were charged.

Michael Odisho was a member of the Bankstown BFL. He did not give evidence at trial, having refused to do so. He participated in an ERISP on 19 February 2014 in relation to the Hamzy shooting but said nothing to police about his own shooting.

The Crown case was that Witness D and Witness I fired the shots which wounded Odisho. Witness C drove them there and waited in the car while the shooting took place. As a result, the applicants were found guilty of the offences in Counts 4 and 5 under the principle of joint criminal enterprise and extended joint criminal enterprise. It was the Crown case that the applicants incited and directed those persons to shoot Odisho with the intention that he be killed and that their actions amounted to an attempt to murder Odisho.

Both sides accepted that the statements of principle in Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 (Bathurst CJ with whom Johnson and Fullerton JJ agreed) accurately set out the considerations which gave rise to a joint criminal enterprise, or an extended joint criminal enterprise. In that regard, it was common ground that in respect of all the shootings neither Mumtaz nor Farhad Qaumi were physically present at the time that the offending took place.

Bathurst CJ set out the relevant principles at [41]-[54]:

It was the Crown case that preparations for the Odisho shootings commenced in a park in Blacktown on the day of the shooting. The Crown relied on the following evidence.

Witness L arrived with Jamil Qaumi who had driven him there. Mumtaz Qaumi and Witness J were also there. Witness C, Witness D and Witness I arrived afterwards. Witness I described how while at the park in Blacktown, both Mumtaz and Jamil Qaumi directed Witness D and Witness C to either shoot Michael Odisho or Masood Zakaria. They were to steal a car for the purpose of the shooting.

Witness I gave evidence that while they were looking for a car to steal, Jamil Qaumi was telephoning them asking where they were and why it was taking so long. Eventually, Jamil Qaumi told them to meet him at a park in Merrylands.

Witness L gave evidence about how Witness I, Witness D and Witness C were looking for a car to steal. Witness L left the park with Mumtaz and Jamil Qaumi and met Witness M at the McDonalds restaurant in North Parramatta. Witness M knew where Michael Odisho lived. Mumtaz and Jamil Qaumi and Witness L were driven in her car to Michael Odisho’s home in Winston Hills where she pointed out its location. They then returned to North Parramatta where Witness M drove away. Mumtaz, Jamil and Witness L met with Witness D, Witness I and Witness C. Witness l remained in Mumtaz Qaumi’s car at the park. The others left to go to Witness I’s house.

It was at the park in Merrylands after the unsuccessful attempt to steal a car that Mumtaz Qaumi told Witness D, Witness I and Witness C that he had Michael Odisho’s address and said “We going to get Mikey” and as part of that plan Witness I, who knew Michael Odisho, would get him out of his house so that he could be shot.

Witness C described driving to the park in Parramatta and meeting Mumtaz and Jamil Qaumi, who then got into his car. The five of them drove at the direction of Mumtaz Qaumi to Michael Odisho’s house. Mumtaz Qaumi gave directions as to how the shooting would be carried out. They then returned to Parramatta where Mumtaz and Jamil Qaumi drove away and Witness C drove Witness D and Witness I to Witness I’s house. Witness I described how a shotgun and a revolver had been brought to his house by Jamil Qaumi. The weapons were taken from Jamil Qaumi’s car by Witness I and Witness D. Jamil Qaumi then explained to Witness D how to fire the shotgun. Witness I was given a pistol.

Witness D gave evidence of having been driven to Michael Odisho’s house with Witness C, Witness I and Mumtaz Qaumi. Mumtaz showed them the address and told them that was where they were going to “get Michael Odisho”. Witness D had been given a shotgun, which had been collected from Witness L’s house.

Witness C drove Witness I and Witness D to Michael Odisho’s house. Witness I and Witness D walked up to Michael Odisho’s house while Witness C remained in the car which was parked a few houses away. Witness I described knocking on the front door. He heard Michael Odisho come to the front door and ask who it was. Witness I and Witness D then started shooting at the window next to the front door. Witness I and Witness D ran back to the car and they were driven away by Witness C.

Witness D gave evidence that Witness I knocked on the door of Michael Odisho’s house after which he and Witness D started shooting. He described shooting when he saw someone coming to the front door. He fired when he could see a shadow.

Evidence from hospital records established that Michael Odisho had been wounded in the left elbow and left mid lower thigh. The left elbow was fractured as a result of the shooting. Michael Odisho’s mother described hearing gunshots as her son went to the window to look at who was at the front door. The Crown submitted that it was open to the jury to conclude that Witness D had an intention to murder when he fired the shotgun through the window at the shadow which he could see.

In cross-examination, Witness C maintained that a car was to be stolen for a shooting. He gave evidence that the shooting was not merely intended to scare or warn Michael Odisho or members of the Bankstown BFL and that the shooting was not merely a response to a threat or risk posed by the Bankstown BFL to Witness I. Witness C said that Mumtaz Qaumi did more than simply point out Michael Odisho’s house.

In cross-examination, Witness I agreed with counsel for Jamil Qaumi that he had been shooting at the lower part of the window to the right of the front door and that he had been doing so to scare Michael Odisho off because he did not want to wait for Michael Odisho to come to the door. Despite this, Witness I denied that he only went to Michael Odisho’s house to scare him. It was a matter for the jury as to which version they accepted. It should also be noted that Witness I fired more than one shot. This is inconsistent with an attempt to merely scare Odisho.

According to Witness L, Mumtaz Qaumi directed Witness D and Witness I to shoot Michael Odisho because if they did not shoot him first, he would retaliate against them. Witness L maintained that Michael Odisho was to be shot rather than scared off when cross-examined by Mumtaz Qaumi’s counsel.

Witness I denied that Mumtaz Qaumi was prepared to show him where Odisho lived but did not do more than that. Witness I strongly disagreed that Mumtaz Qaumi had said something along the lines of “They’ve got to be warned off” and that Mumtaz Qaumi had asked what was to be done. Witness I denied that he responded to Mumtaz Qaumi by saying “Well, I’m going to get him before he gets me”.

Witness C, when cross-examined by counsel for Mumtaz Qaumi, said that he understood that the risk of retaliation was to Witness I, i.e. that Odisho was coming for Witness I. Witness C denied that all Mumtaz Qaumi had done was to indicate Michael Odisho’s house.

Witness L denied knowing that there were rumours that he and Witness I had been involved in the Hamzy shooting. Witness L denied being armed at the time and maintained that the shooting occurred because Mumtaz Qaumi had directed it and not because Witness I was said to have been involved in the Hamzy shooting. He said that his involvement in the events of the day leading up to the Odisho shooting occurred because he was in the company of Jamil Qaumi, as Farhad had directed, not because he feared retaliation by the Bankstown BFL.

The Crown submitted that it would be remarkable if Mumtaz Qaumi understood that certain members of the Blacktown BFL were suspected of involvement in the Hamzy shooting but saw no personal risk to himself or to Farhad despite what Glebe and Stretch had said at the casino. The Crown submitted that it was antithetical to the concept of a gang that the leadership would not assist its members when they were under threat.

The Crown submitted that text messages passing between Witness D, Witness I and Jamil Qaumi showed that Jamil was giving directions to Witness D as to where he should go before the Odisho shooting (Exhibits 6H and 8E). By way of example, police were able to retrieve a text message from Jamil Qaumi to Witness D at 12.47pm on 3 November 2013 which read “Go to Witness I’s house, wait there”.

Jamil Qaumi gave evidence of travelling between various gang members’ houses before arriving at the park in Blacktown. He gave evidence that the plan was Witness I’s and that the plan was to shoot at Michael Odisho’s house. He gave evidence that Mumtaz Qaumi was at the meeting but his role was to give Michael Odisho’s address to Witness I after having obtained it from Witness M. He said that both Mumtaz and he had drifted into the meeting to hear what was decided. The Crown submitted that this proposition should be rejected because it was inconsistent with the senior positions which Mumtaz and Jamil held within the Blacktown BFL.

Farhad Qaumi submitted that there was no suggestion by Witness C or Witness D that he had said or done anything specifically related to the Odisho shooting. Witness I did say that the day after the shooting, he met Farhad and Jamil Qaumi at a park in Merrylands. He said that Farhad was happy he had done the shooting but was angry that he did not kill him. Farhad Qaumi submitted that such a conversation did not take place and there was no independent evidence that it did.

On the second day of his evidence, Witness C added to his evidence of the Odisho shooting when he said:

Farhad Qaumi submitted that this response was inconsistent with what Witness C had said in his interview with the police on 7 February 2014:

It was common ground at the trial that there was no evidence that Farhad Qaumi was present at any meeting before the Odisho shooting. Farhad Qaumi submitted that there was no forensic evidence linking him to the Odisho shootings and no admissions by him. He was apparently not in Sydney in the time leading up to the Odisho shooting in that his telephone records for 3 November 2013 are all consistent with him being on the Central Coast (Exhibit 10Ys).

With one qualification, the involvement of Farhad Qaumi in the Odisho shooting depends on an acceptance of the evidence of Witness L as to what was said at the meeting in the park after Farhad Qaumi left the Star City Casino. If the evidence of Witness L is accepted, there was no need for Farhad Qaumi to attend any meeting which took place before the Odisho shooting. There was no need because he had already given a direction early that morning that Michael Odisho should be killed and that Mumtaz Qaumi should pass on that order to Witnesses I and D. It is not surprising, therefore, that his name might not have been mentioned immediately before the Odisho shooting. Accordingly, it was open to the jury if they accepted the evidence of Witness L, to find Farhad Qaumi guilty of Counts 4 and 5 on the basis of soliciting Witnesses I and D to murder Michael Odisho and on the basis of being part of a joint criminal enterprise. His order that the killing should take place and his nomination of who should carry out the shooting was the relevant positive conduct on his part. Mumtaz Qaumi had passed on Farhad Qaumi’s instructions to Witness C, Witness D and Witness I and had participated in the reconnaissance of Odisho’s home.

The qualification is the recording of a conversation between Pasquale Barbaro (PB) and Farhad Qaumi (FQ) on 30 December 2013. That recording was Exhibit 9G. There was no transcript admitted into evidence because the contents of the recording were very much in dispute.

The Crown’s submission to the jury was that this tape contained a half spoken admission by Farhad Qaumi that he ordered the shooting of Michael Odisho. The defence submission was that it was simply a reference to his having heard that Odisho had been shot.

The Crown submission was that the conversation was:

The defence submission was that the conversation was:

There is another part of that conversation which at best is ambiguous but was also relied upon by the Crown:

Having played the disc on many occasions, I favour the interpretation given to it by the Crown but the sound is not sufficiently clear to justify basing a finding of guilt only on that evidence. I prefer to do so on the basis already indicated, i.e. that it was well open to the jury to accept the evidence of Witness L as to what occurred after Farhad Qaumi left the casino.

The jury, as they were entitled to do, clearly rejected the evidence of Jamil Qaumi. Otherwise, the evidence is virtually all one way as to the actions taken by both Mumtaz and Jamil Qaumi to further the accomplishment of what was agreed between them and Witnesses C, D and I. They obtained Odisho’s address, provided the weapons and in the case of Mumtaz, gave directions as to how the shooting was to take place. Similarly, in relation to intention, except for the evidence of Jamil Qaumi, the evidence is almost all one way to the effect that the shooting was not intended to scare or cause grievous bodily harm to Odisho but to kill him. In any event, such an intention can be inferred from the fact that apart from the evidence of Jamil Qaumi, there was no evidence of a direction to scare or only wound Odisho. Moreover, sending someone with orders to shoot indiscriminately when that person is armed with a shotgun with which the person is unfamiliar, raises a high probability of death occurring. This is in a context where the plan was to encourage Odisho to leave his house so that he could be more easily shot.

It follows that it was well open to the jury to find beyond reasonable doubt that Farhad, Mumtaz and Jamil Qaumi were part of a joint criminal enterprise which was intended to cause and incite Witness D and Witness I to murder Odisho and to shoot him with the intention of murdering him. It was not unreasonable for the jury to make that finding. There was ample evidence to support that finding if the jury accepted the evidence of Witness L as to events which took place after Farhad, Mumtaz and he left the casino.

The Crown case was that the Zakaria shooting took place at Sunny Holt Road, Blacktown on 4 November 2013 at 11pm. There was no suggestion that Farhad Qaumi was present during the actual shooting. There was no forensic evidence linking Farhad Qaumi to the shooting.

In examination in chief, Witness I gave evidence that on 4 November 2013 he and Jamil Qaumi went to meet Farhad Qaumi in a park in Merrylands. Farhad Qaumi said he was happy that Witness I had carried out the shooting, but was angry that they did not kill Michael Odisho. Witness I told Farhad Qaumi that the firearms were at his friend’s house. Witness I said that later Witness D and Mumtaz arrived at the park. He could not remember who arrived first.

Witness I said that Farhad Qaumi then asked him and Witness D to get Masood “Zakar”. Witness I said that Mumtaz Qaumi told Witness D that he had to get Masood out of the house as he knew him. Jamil said “Make sure you get him this time, not like Mikey”. Farhad Qaumi directed that they use Witness B’s car.

Mohammed Kalal also arrived at the park. Witness I said that Farhad Qaumi told him, Witness D and Mohammed Kalal that if they did not shoot Masood, they would get shot. Witness I said that Jamil Qaumi said that he would shoot whoever did not do it.

Witness I gave evidence that Jamil Qaumi, Witness D, Mohammed Kalal and Witness I went to Witness L’s house at Blacktown in Jamil Qaumi’s car. They waited for Witness B to arrive. Either Jamil Qaumi or Witness L brought a shotgun and a pistol into the living room. Someone wiped down the shotgun with a cloth and reloaded it. Jamil Qaumi received a phone call after which he said that they would not use Witness B’s car but Witness C’s car instead. Jamil Qaumi then reloaded the pistol. When Witness C arrived, Jamil told him what was happening and that he had to be the driver.

Witness I said that everyone readied themselves and put on gloves and jumpers. He took the pistol and Mohammed Kalal took the shotgun. Witness C drove the car and Witness D, Mohammed Kalal and Witness I were passengers. They parked around the corner from Masood’s house after which Witness D got out and walked towards the house. Mohammed Kalal and Witness I followed and hid behind a wall while Witness D knocked on the door. Witness I heard Witness D talking to Masood’s father but could not hear what was being said. Witness I then heard Masood’s voice. He looked over the wall and saw Witness D holding Masood’s hand. Kalal then started shooting. Witness I said that he did not discharge the pistol. He did not know how many times Mohammed Kalal fired the shotgun. He agreed that three to five times sounded correct. He heard a lot of screaming. They ran to Witness C’s car and he drove them back to Witness L’s house.

In cross-examination Witness I gave evidence that he knew Masood Zakaria and his family, although he did not know that he had a younger sister at that time. He knew his father, his mother and his brother, Dawood. He knew that Masood Zakaria lived with his family in that house.

When Witness D knocked on the front door, Witness I thought he could recall a light coming from inside the house. He could not see anyone standing in the front doorway because he was hiding behind the wall. Shortly after the front door was opened, he and Mohammed Kalal stepped out. Witness I walked towards the driveway and Mohammed Kalal walked towards the front door.

Witness I said that Jamil Qaumi and Witness L were at Witness L’s house when they returned after the shooting. Witness I told Jamil that he could not shoot and Jamil said “Don’t worry, Moey got him”. (Moey was a reference to Mohammed Kalal.) Jamil took the pistol and told Witness I to get rid of his clothes. Witness I was unsure what happened to the pistol.

Under cross-examination by counsel for Mumtaz Qaumi, Witness I said that he was in possession of a .38 pistol during the Zakaria shooting but did not discharge the firearm. He said it was a different .38 from the one used in the Odisho shooting. Witness I said that Witness D was unarmed as he had a different role in the Zakaria shooting which was to knock on the door and divert the occupants’ attention.

In cross-examination, it was put to Witness I that the meeting with Farhad Qaumi and others at Merrylands never took place. Witness I did not agree with that proposition. Witness I disagreed with the suggestion that neither Farhad Qaumi nor Mumtaz Qaumi were present at the meeting. Witness I said that it was on the occasion of this meeting that Mumtaz Qaumi suggested to Witness D that he should get Masood out of the house so that Witness I could shoot him. Witness I disagreed with the proposition that Mumtaz Qaumi never said this.

In cross-examination, Witness I said that on 4 November he had returned with Jamil Qaumi and Sarkhel Rokhzayi to retrieve the firearms from where they hid them the day before. He said that he and Jamil Qaumi put the firearms in Sarkhel Rokhzayi’s car and followed Rokhzayi back to his house. Witness I marked a map to show where Sarkhel Rokhzayi lived and to show where the conversation on the evening of 4 November 2013 between Farhad, Mumtaz and Jamil Qaumi, Witness D and Mohammed Kalal occurred (T.3643-3644, Exhibit 58, 24.6.2016). Witness I stated that they were at this meeting for about one to two hours. He disagreed that his evidence about the conversations that occurred at the meeting was false. He confirmed that after the meeting he, Jamil Qaumi, Mohammed Kalal and Witness D went to Witness L’s house. Witness I disagreed that he loaded the revolver in Witness L’s house before the shooting. He disagreed that the decision to shoot Masood Zakaria was made at Witness L’s house. He disagreed that the Zakaria shooting was his idea and was intended to give a warning to stop Masood Zakaria from attacking him (i.e. Witness I) or Witness L.

Under cross-examination by counsel for Mohammed Kalal, Witness I agreed that Jamil Qaumi told him, Witness D, Mohammed Kalal and Witness C when he arrived that Witness D was to draw Masood Zakaria out of the house and that Witness I and Mohammed Kalal were to do the shooting. Witness I agreed that there was no discussion about the risk to anyone else who might be in the house.

A summary of the telephone material involving Witness I concerning the Zakaria shooting was tendered and marked Exhibit 6J (T.3357, 20.6.2016). On 4 November 2013, he received four incoming calls between 2.12pm and 2.15pm from Mohammed Kalal. He received calls from the telephone associated with Jamil Qaumi throughout the day.

Between 2.35pm and 3.49pm, there were six calls which came from Jamil Qaumi’s phone and placed Jamil Qaumi at Pendle Hill at the time. Witness I was at Merrylands for two of those calls and at Guildford for one of them (i.e. 3.49pm). At 4.03pm, Jamil Qaumi made and received a call from Witness I while he was at Guildford Station and Witness I was at West Pennant Hills. He received four further calls between 7.15pm and 7.16pm. He gave evidence that these telephone calls were about Jamil Qaumi coming to see him.

At 8.22pm there were two outgoing calls made by Witness I to Witness D. At 8.24pm there was an incoming call from Witness D. Witness I gave evidence that these calls were because Jamil Qaumi had asked Witness I to ask Witness D if he would come down to Witness I’s area. Two outgoing calls were made to Witness D at 9.12pm and 9.28pm and two incoming calls were received from Witness D at 9.40pm and 9.42pm. Witness I said that these calls were to co-ordinate meeting up with Witness D.

Four outgoing calls were made by Witness I to Witness C, two at 9.53pm, at 9.54pm and at 10pm. One incoming call was received from Witness C at 9.59pm. At 12.51pm on 5 November 2013 (i.e. after the shooting), Witness I received a text message from Mumtaz Qaumi saying “Can u go and see Mudy”. Witness I was not sure who Mumtaz was referring to when he said “Mudy”.

Witness D gave evidence that late on the afternoon of 4 November 2013 he received a call to meet Jamil Qaumi and some of the other boys. He could not recall who was with Jamil Qaumi. They went to a house and he had a conversation with Farhad Qaumi, Jamil Qaumi and Witness I outside the house. One of the men said “How’s the shooting and why did youse miss?”. Witness D could not recall who said that or if anything was said in reply. Before the group left, Farhad Qaumi told them they were going to go and shoot Masood Zakaria and that Witness D was to lure Masood out of his house and then “The boys gonna shoot him”. Witness D recalled he said to Farhad Qaumi “Nah, I know him” because he did not want to shoot Masood but Farhad Qaumi said “Youse got to, he’s gonna get hit, he’s gonna get shot”. Witness D also recalled that Farhad Qaumi said that if they did not do the shooting, then “It was gonna be us, we’re gonna get shot”.

Witness D, Jamil Qaumi, Mohammed Kalal and Witness I all met at Witness L’s house and Witness D saw a shotgun and a handgun, like a revolver, being loaded with bullets in the lounge room. Mohammed Kalal was given the shotgun and Witness I the revolver.

Witness D said that Witness C arrived some time later and drove him, Mohammed Kalal and Witness I with the firearms to Masood’s house. The rest of Witness D’s evidence was consistent with the evidence of Witness I as to travelling to Zakaria’s house and the shooting thereafter taking place.

In cross-examination, Witness D agreed that there was a meeting before the Zakaria shooting and after the Odisho shooting in Westmead in which he, Farhad Qaumi, Jamil Qaumi and “this lady came in a car”. Witness D did not know who the lady was, nor could he identify her as Witness M as it was dark. Witness D disagreed with the suggestion that Farhad Qaumi was not present for that meeting.

Witness D was asked whether he saw Masood’s sister after Masood’s father opened the door and he answered “Not at the time of the moment, I don’t remember” but stated “yes” when asked if he saw Masood’s whole family. He confirmed that Farhad Qaumi told him before the shooting that if he could not get Masood out of the house, then he should ask for his brother Dawood and get him out of the house. Witness D agreed, after being shown phone records, that he had exchanged a number of telephone calls with Witness I before the shooting, but could not recall the substance of those conversations.

Under cross-examination, Witness D initially said that the meeting was at Wentworthville and then he said it was somewhere in the west. Witness D said that Farhad Qaumi, Jamil Qaumi and Witness I were present at the meeting. Witness D made no mention of Mumtaz Qaumi being at the meeting. Under cross-examination, Witness D recalled that after the group arrived at Witness L’s house, Jamil Qaumi was giving orders about the firearms to Mohammed Kalal and Witness I. Witness D recalled seeing the firearms being loaded but could not remember by whom. He agreed that he told the police that he thought it was Witness L or Jamil Qaumi.

Counsel for Farhad Qaumi was critical of the evidence of Witness I based on telephone intercepts and the location of mobile telephone cell towers.

The Crown tendered a map marked by Witness I, indicating the location of the park where the meeting took place (Exhibit 6Xs). The park was in the Blacktown area. Witness I marked Sarkhel Rokhzayi’s house on the map. He also said “The map says Jones Park but we call it Merrylands Park”. In cross-examination Witness I confirmed that Jones Park was the park where he said the meeting took place before the Zakaria shooting. He marked another map to confirm where the meeting took place (Exhibit 58).

Farhad Qaumi submitted that the telephone records indicated that the phone associated with him (xxx xxx147) was in the Central Coast on the morning of 4 November 2013 (Exhibit 10Ys). In the early afternoon, there were calls made to and from the phone consistent with the user of the phone travelling down to Sydney from about 8.30pm. The user of the phone was in Granville North until about 9.24pm and in the May’s Hill tower area at 9.29pm. The phone records placed the phone in the May’s Hill North area at 9.49pm and 9.54 pm (Exhibit 10Ns). Farhad Qaumi submitted that the phone records did not place him anywhere near Jones Park or Westmead.

Farhad Qaumi submitted that Exhibit 10Ks showed the areas covered by some of the cell towers relevant to calls made on the night of the Zakaria shooting. He submitted that Exhibit 10Ks showed that the cell tower coverage for the towers “Mays Hill A-1” and “Mays Hill A-3” and Mays Hill North not only did not cover Mays Hill but did not cover Jones Park, nor did they cover Westmead.

Farhad Qaumi noted that there was evidence from Detective Iverach that Farhad Qaumi’s sister lived with her family in Collins Street, Pendle Hill which was just outside the probable coverage area for one of the cell tower called “Mays Hill” (Exhibit 77).

The telephone records of Witness C (Exhibit 7Js) and the telephone records of Witness D (Exhibit 8Fs) did not involve any calls to or from the phone said to be used by Farhad Qaumi, nor did the telephone records of Witness I (Exhibit 6Js).

Farhad Qaumi challenged the reliability of the evidence of Witness D. He referred to the answer “I’d love to” given by Witness D when asked by the police whether he was prepared to inform on the Qaumis. Farhad Qaumi submitted that this showed him to be hostile to them.

Farhad Qaumi also relied upon the psychological symptoms which Witness D had reported to health professionals, including that he had seen aliens in a park. When these matters were put to Witness D, he replied that he could not remember having said those things.

The summary of call charge records with respect to Farhad, Mumtaz and Jamil, Mohammed Kalal, Witness I, Witness D, Witness C and Witness L for 4 November 2013 became Exhibit 10N. Evidence of predicted probable coverage from cell tower sites associated with those telephone calls became Exhibit 10J. A large map, Exhibit 10K, was prepared.

The Crown submitted that the cell towers at Mays Hill, or Mays Hill North, associated with their telephone calls supported the conclusion that a meeting took place between approximately 9pm and 10pm. The Crown submitted that those records also confirmed the presence of Farhad, Mumtaz and Jamil Qaumi, Mohammed Kalal, Witness I, Witness D, Witness C and Witness L at the meeting.

The Crown submitted that Farhad Qaumi made or received mobile telephone calls associated with a cell tower located at Mays Hill or Mays Hill North between 9.29pm and 9.54pm. At 2.31pm his telephone had been associated with a cell tower location at Chapmans Hill, which is in the Wyong region. At 8.56pm and 9.24pm his telephone calls were associated with a cell tower at Granville North. The next call after the 9.54pm call was at 2.26am the following morning. The Crown submitted that taking into account the predicted probable coverage of the Mays Hill and Mays Hill North cell towers, and the approximate nature of the predicted coverage, Farhad Qaumi could well have been at a park from 9.30pm between Pendle Hill and Westmead. The Crown submitted that the lack of precision in the “predicted probable coverage” of the cell towers meant that they did not exclude the presence of Farhad at the meeting.

The Crown submitted that Mumtaz Qaumi received telephone calls at 9.38pm, 9.48pm and 9.50pm associated with cell tower locations at Mays Hill and Mays Hill North. The Crown submitted that those calls coming from Jamil Qaumi suggested that the two of them were not together. The Crown submitted that after 9.50pm there was no reason to conclude that Mumtaz Qaumi was anywhere else other than at the meeting. A telephone call to him at 10.18pm was associated with the cell tower at Mays Hill North. The Crown noted that Witness I described Witness D and Mumtaz Qaumi coming late to the meeting. Accordingly, the Crown submitted that the telephone calls between Jamil Qaumi and Mumtaz Qaumi between 9.38pm and 9.50pm associated with the cell tower at Mays Hill were consistent with Mumtaz Qaumi attempting to find the park or his fellow gang members within it.

The Crown noted that between 9.32pm and 9.50pm, Jamil Qaumi’s telephone calls were associated with the cell tower location at Mays Hill, except for the call at 9.44pm which was associated with the cell tower at Westmead. The Crown submitted that this was consistent with Jamil Qaumi collecting Witness D from the Westmead railway station. The Crown submitted that Witness D’s telephone calls to Witness I at 9.40pm and 9.42pm were consistent with him indicating his arrival or near arrival at that railway station. The Crown noted that Witness I’s telephone calls were associated with a cell tower location at Mays Hill between 9.28pm and 10.08pm.

Jamil Qaumi gave evidence about events leading up to the Zakaria shooting which did not include a meeting. He said that he slept at his sister’s house in Pendle Hill on the night after the Odisho shooting and went from Witness I’s house to that of Witness L. His evidence was that he had not seen Farhad Qaumi from the time of the Casino visit on 2 November 2013 until he drove him to the airport on 5 November 2013.

It was submitted by Farhad Qaumi that because his sister lived in Collins Street, Pendle Hill close to the coverage of the Mays Hill cell tower, the coverage for which was coloured blue on Exhibit 10K, he could have been there rather than at a meeting planning the Zakaria shooting. There was, however, no positive evidence that Farhad Qaumi was at his sister’s house at the time. Significantly, Jamil Qaumi denied that the meeting had occurred but did not give evidence of the location of the applicant or Mumtaz Qaumi at this time on that night.

It is not surprising that there is a lack of precision when identifying where the park was where the meeting was said to have occurred. The principal witnesses in the Zakaria shooting, Witness I and Witness D, variously referred to the park being in Wentworthville, Merrylands and Witness I eventually identified it as Jones Park. Witness D was not familiar with the area and had to be picked up from a nearby railway station. Witness I does appear to have been more familiar with this part of Sydney and by reference to the house of Sarkhel Rokhzayi, nominated Jones Park in Mays Hill as the place of the meeting. The fact that there was confusion as to the identity of the park is entirely understandable given the way in which the Blacktown BFL operated. Having discussions in a park where they could not be overheard prior to a shooting, or other criminal activity, was a regular occurrence for members of this gang. One could well understand why the identity of any particular park would not be remembered given that planning activity of this kind was regularly carried out.

The matter is further complicated because the probable coverage of the cell towers was at best rough and approximate and could easily cover Mays Hill and Jones Park, which were not particularly far away. This is so even though the cell tower records did not identify the telephone calls either coming or being received from that precise location. Significantly, however, the cell towers did support the proposition that the telephone calls were being sent and received in this area of Sydney, although not necessarily from Jones Park in Mays Hill.

It also needs to be remembered that there was a considerable body of evidence from Witness L, Witness D and Witness l which implicated Farhad and Jamil Qaumi in the solicitation of others to murder Zakaria and to cause grievous bodily harm with an intention of so doing. That evidence was given over a considerable period of time and the witnesses were firmly and extensively cross-examined. The jury were well aware of the need to be careful when assessing that evidence. This Court has not had the benefit, which the jury had, of seeing and hearing those witnesses. Even allowing for the possible difficulties created by the evidence concerning predicted coverage by the cell towers, the evidence of those witnesses, if accepted by the jury, was sufficient in itself to allow them to find beyond reasonable doubt that Farhad and Jamil Qaumi were guilty of those offences.

Accordingly, there was sufficient evidence for the jury to be satisfied beyond reasonable doubt that Farhad, Mumtaz and Jamil Qaumi had been present at the meeting where Farhad Qaumi and Jamil Qaumi had solicited the murder of Masood Zakaria and had agreed that this should occur. Significantly, Masood Zakaria was not shot but his sister was. This was a crime that was readily foreseeable as a real possibility given what had occurred only two days before in the Hamzy shooting.

It is important to note that the Crown did not rely upon joint criminal enterprise with respect to the charge of soliciting the murder of Masood Zakaria against Mumtaz Qaumi. The jury’s inability to reach a decision with respect to the charge of soliciting the murder of Masood Zakaria against Mumtaz Qaumi can be explained by the conflict between Witness I and Witness D concerning who had directed Witness D to lure Masood Zakaria from his house. In the sentence judgment, the trial judge gave this as an example of “the jury’s careful discernment between the counts in the cases made against each accused” (R v Farhad Qaumi; Mumtaz Qaumi and Jamil Qaumi (Sentence) [2017] NSWSC 774 at [25]).

Jamil Qaumi gave this evidence about the meeting at Witness L’s house that night (T.5994-5995, 23.8.16):

Witness I did not reach Masood Zakaria’s front door. There is no evidence that he discharged the revolver he was carrying. Forensic evidence suggested that the only weapon discharged was the shotgun Mohammed Kalal was carrying.

CCTV footage taken from the house next door to the Zakaria residence was played to the jury (Exhibit 4N). This footage was consistent with the evidence provided by Witness D and Witness I about the sequence of events immediately preceding the shooting, i.e. Witness D approached the door first while Witness I and Mohammed Kalal hid beside the house. Witness D ran from the house and Mohammed Kalal approached the house with the shotgun with Witness I behind him and five to eight seconds later both men ran from the house.

Unlike the Odisho shooting, or the Chokolatta Café shooting, there was only one shooter and he was an accused rather than an informer witness. Direct evidence of the shooting came from Masood’s sister who suffered grievous bodily harm as a result of being shot, and from her father.

The trial Judge directed the jury that to convict on Count 8 they needed to be satisfied that Mohammed Kalal had an intention to murder when he fired the shotgun (SU 482). The jury acquitted all accused of Count 8, which alleged that grievous bodily harm was caused to Masood’s sister, with intent to murder Masood Zakaria.

The jury convicted on Count 9, the alternative to Count 8, which alleged that grievous bodily harm was caused to H with an intent to do grievous bodily harm to her or another. The jury must have at least had a doubt based on the evidence of Masood’s sister that when Mohammed Kalal fired the shotgun hitting her, Masood Zakaria was present and the target of Mohammed Kalal’s discharge. That in turn would have led to a doubt as to whether he had an intention to kill when he fired the shotgun.

It can be inferred, however, that the jury must have been satisfied nevertheless that Mohammed Kalal had an intent at the time to cause grievous bodily harm to whomever he was firing at. Mohammed Kalal therefore committed an offence that was not agreed to by Farhad, Mumtaz or Jamil Qaumi but must have nonetheless been foreseen by them as a possible incident of the agreed crime, given what had occurred at the Hamzy shooting. The failure of the jury to reach a verdict in respect of Mohammed Kalal on this count must have been related to his claim of duress, not whether he possessed an intent to do grievous bodily harm when he discharged the shotgun (R v Farhad Qaumi; Mumtaz Qaumi and Jamil Qaumi (Sentence) at [26])).

It follows, therefore, that it was open to the jury to convict Farhad Qaumi and Jamil Qaumi of soliciting the murder of Masood Zakaria and to convict Farhad and Jamil Qaumi of shooting at Masood’s sister with intent to do grievous bodily harm pursuant to a joint criminal enterprise.

The position of Mumtaz Qaumi in relation to the Zakaria shooting differs significantly from that of his brothers. Firstly, the jury was not prepared to convict him of count 7, i.e. the solicit to murder count. More importantly, there is a lack of evidence of any real participation on the part of Mumtaz Qaumi in furthering the execution of the agreement to shoot Zakaria. The only evidence which attributes any participation by Mumtaz Qaumi comes from Witness I. It is to the effect that he directed Witness D to encourage Zakaria, whom he knew, to come outside the house so that he could be more easily shot. Witness D did not support that evidence and attributed the order to Farhad Qaumi.

To establish participation in an extended joint criminal enterprise, it is necessary to show that Mumtaz Qaumi was a party to the original agreement to shoot Zakaria and that he participated in some way. On the facts of this case, it is not sufficient that he attended the meeting in the park and that he held a leadership position in the Blacktown BFL. This is because Farhad Qaumi, who was the leader of the gang, was also present and giving directions as to how the shooting should take place. It is not enough that the presence of Mumtaz Qaumi at the meeting demonstrated his endorsement of the plan and therefore constituted a step in furthering the execution of the extended joint criminal enterprise.

The only evidence of Mumtaz Qaumi furthering the execution of the extended joint criminal enterprise came from Witness I and is to the effect that Mumtaz Qaumi directed Witness D to persuade Zakaria to leave the protection of his house so that he could be shot. That evidence is controversial. Not only is there an issue as to whether Mumtaz Qaumi was present at the meeting, but there is no corroborative evidence that he did or said anything at the meeting. It follows that even if the jury accepted that the evidence of Witness I on this issue was accurate, this evidence is not sufficient to establish beyond reasonable doubt that Mumtaz Qaumi took any positive steps to bring about the shooting of Zakaria. This is a doubt which the jury should have had. Accordingly, I am left with a reasonable doubt that even if Mumtaz Qaumi was at the meeting, he did anything to advance the plan which had been conceived by his brothers.

I have concluded that Mumtaz Qaumi should be acquitted on Count 9 and that a verdict should be entered in his favour in relation to that Count.

On 7 November 2013, a further shooting took place outside the Chokolatta Café in Bankstown. The target was a man called Abdul Abu-Mahmoud (“Abs”). He was targeted while sitting in a car outside the café with two other men. The motive for the shooting was that Mr Abu-Mahmoud was believed to have access to the addresses of the leaders of the BFL Blacktown and might provide those addresses to the BFL Bankstown group. The shooting took place while Farhad Qaumi was overseas and Mumtaz Qaumi had the leadership of the Blacktown BFL.

There was evidence that Witness M and others attended the Chokolatta Café early on the evening of the shooting so that she could identify Mr Abu-Mahmoud to those who had been ordered to carry out the shooting. There were telephone intercepts in which Jamil Qaumi gave various directions to Witness I and text exchanges between Jamil Qaumi and Witness M.

It was the Crown case that Mumtaz and Jamil Qaumi directed Witness I to drive Witness D and Mohammed Kalal to the café at around closing time, to block Mr Abu-Mahmoud’s car when he left the café and to then shoot him while he was still in the car.

As it turned out, Mr Abu-Mahmoud got into his car with two other men and all three were sitting in the car when the shooting occurred. Witness I blocked the car and Mohammed Kalal, armed with a .38 calibre revolver, and Witness D, armed with a shotgun, opened fire on the car. Fortuitously, police were conducting surveillance and telephone intercepts on Jamil Qaumi at the time.

Two of the occupants were struck by shotgun pellets but have made a full recovery. Ballistics evidence showed that projectiles fired from the shotgun struck the top of the back of the driver’s seat. The ballistics evidence supported Mohammed Kalal’s case that he fired the revolver into the side of the car.

The jury was unable to agree upon verdicts in respect of Mohammed Kalal on the counts arising out of the Chokolatta Café shooting.

Jamil Qaumi does not challenge his conviction on Counts 10 and 11. Mumtaz Qaumi relied upon two bases for arguing that his guilty verdicts for the Chokolatta Café shooting were unreasonable. The first asserted a paucity of evidence implicating him in the preparations for the shooting and the second contended that despite the principles of extended joint criminal enterprise, he could not be guilty of shooting Khalil Khalil and Hassan Soueid (the passengers in the vehicle) with intent to murder them because an intent to murder had not been established in respect of those persons who were unexpectedly in the car. Jamil Qaumi also relied on this submission in his appeal against conviction on Counts 13 and 15. It should be noted that Jamil and Mumtaz Qaumi accepted that the evidence was capable of establishing the specific intention to kill Abdul Abu-Mahmoud and to inflict grievous bodily harm upon Khalil Khalil and Hassan Soueid. The basis of the challenge by Jamil and Mumtaz was the proposition that the evidence was not capable of establishing the specific intent to murder Khalil Khalil and Hassan Soueid (R v Qaumi and Others (No 60) [2016] NSWSC 1160 at [4]).

The principal evidence for this incident came from Witness M, Witness I, Witness D, Jamil Qaumi, Witness L and Detective Iverach. Leaving aside the evidence of Detective Iverach and of Jamil Qaumi, the effect of the evidence of the other witnesses was as follows.

Mumtaz Qaumi, Jamil Qaumi, Witness D, Mohammed Kalal, Witness I and Witness M met in Rosehill approximately two streets away from the McDonalds restaurant at Thornleigh. When they arrived, Witness M told them “Abs is getting everyone’s address and we gotta get Abs”. Mumtaz Qaumi was said to have told Witness I and Witness D that they had to “get Abs”. Jamil Qaumi told Witness I to call his friend, Sarkhel Rokhzayi and obtain the shotgun and revolver that Witness I had left with him after the Odisho shooting.

Police surveillance (Exhibit 4M) at 8.24pm, was able to establish that a blue Mazda rental car being driven by Jamil Qaumi with Witness M, Witness D and Witness I as passengers drove towards the Chokolatta Café in Bankstown. Their purpose was to allow Witness M to identify Abdul Abu-Mahmoud. That vehicle returned to the meeting place at 9.18pm.

Witness M’s evidence was slightly different. She said that it was Mumtaz Qaumi not her who was the first to tell everyone that “Abs” was a threat and that he needed to be shot. Her evidence was that Mumtaz Qaumi was responsible for this initial planning and the direction given to everyone to “get Abs”.

Police surveillance and the evidence from mobile phone cell towers as to the location of the phone used by Mumtaz Qaumi established that this evidence was not correct insofar as it described the movements of Mumtaz Qaumi and anything said by him. Police surveillance established that Mumtaz Qaumi did not arrive at the meeting place near McDonalds until 9.20pm. Police surveillance established that Jamil Qaumi and Mumtaz Qaumi drove away from the meeting place at 9.54pm. The other two cars, being Witness M’s and the blue Mazda rental, also left the meeting place at that time. Accordingly, Mumtaz Qaumi was at that location for approximately 34 minutes. It was the Crown case that this allowed Mumtaz Qaumi to give the instructions attributed to him earlier that night.

Witness I gave evidence that it was during that period, i.e. 9.20pm and 9.54pm, that Mumtaz Qaumi explained how to block Mr Abu-Mahmoud’s car so that he could not drive away from the shooters.

Witness M, after identifying Mr Abu-Mahmoud and the Chokolatta Café, drove away and played no further part in the events of that night.

Upon leaving the meeting place, it was the evidence of Witness I and Witness D that they drove to Sarkhel Rokhazayi’s house in Merrylands and collected the shotgun and revolver used in the Odisho shooting. They then went to Jones Park, which was near to Sarkhel Rokhazayi’s house, where they met Mumtaz Qaumi, Jamil Qaumi and Mohammed Kalal. Witness I said the firearms were loaded by Mumtaz Qaumi and Jamil Qaumi.

Witness L gave evidence that he was asked to bring some gloves to Jones Park. When he arrived at the park, he saw Mumtaz Qaumi, Jamil Qaumi, Mohammed Kalal, Witness D and Witness I. Witness L said that Mumtaz Qaumi told him “We’re getting Abs today”.

Jamil Qaumi gave evidence that Witness M had called him and then organised to meet him at the Thornleigh McDonalds restaurant. She told him about Abu-Mahmoud and how he was going to release their addresses to “LC”. Jamil Qaumi said that he met Mohammed Kalal, Witness I and Witness D at Mohammed Kalal’s place and passed on to them what Witness M had told him. He met Witness M at the Thornleigh McDonalds when he was accompanied by Mohammed Kalal, Witness I and Witness D. He asked her to tell them what she had told him. She told them about the threat and that she would point out to them who “Abs” was. She then went with Jamil Qaumi, Witness I and Witness D in the blue Mazda to Bankstown to identify “Abs” as they drove around the block and passed the Chokolatta Café a few times.

Jamil Qaumi said that when they returned to the meeting place at 9.20pm, Mumtaz Qaumi was there. Witness M told him about “Abs” getting their addresses. Jamil said that when they left the meeting place, he was accompanied by Mohammed Kalal and Mumtaz Qaumi. He estimated the time to be about 10pm. He drove to the park (Jones Park) next to Sarkhel Rokhzayi’s house. When he got there, he telephoned Witness L to tell him what Witness M had said and directed him to bring some gloves with him. He gave the following evidence:

Witness I confirmed that after driving to the park, he drove back to the Chokolatta Café in Bankstown, led by Jamil Qaumi and Mumtaz Qaumi. Witness I explained that neither he nor Witness D could remember the location of the Chokolatta Café so Jamil Qaumi and Mumtaz Qaumi had to show them where it was. Witness I gave evidence that it had been arranged that Jamil Qaumi and Mumtaz Qaumi would remain nearby, wait for the shooting to be completed and then take the shooters in their car while Witness I left with the firearms.

Witness I, Mohammed Kalal and Witness D waited in the rental car. Jamil Qaumi and Mumtaz Qaumi waited for a while but then drove away. Eventually, Abdul Abu-Mahmoud came out of the café with two other males. He sat in the front passenger seat of a dark coloured BMW. Witness I then drove and stopped behind the BMW to block its departure. Witness D and Mohammed Kalal got out of the rental car and started shooting at the BMW. Witness D had the shotgun and Mohammed Kalal the revolver. They returned to the rental car and drove back to Merrylands where by arrangement, they met Jamil Qaumi. Witness I, Mohammed Kalal and Witness D parked nearby and left the firearms in the rental car. Jamil Qaumi drove away with Mohammed Kalal. Witness I left with Witness D and took the firearms to Sarkhel Rokhzayi’s house. Witness I and Witness D were arrested there. Jamil Qaumi and Mohammed Kalal were also arrested.

The Crown submitted that in the absence of Farhad Qaumi, Mumtaz Qaumi held the most senior position within the Blacktown BFL. The Crown submitted that it was inconsistent with that role that he simply drove down from the Central Coast to hear what Witness M had to say about the risk posed by Abdul Abu-Mahmoud. Jamil Qaumi acknowledged that they were all worried about what Witness M told them. He was in fact prepared to make the following admission in cross-examination:

It was of course open to the jury to reject that last question and answer and prefer the earlier one. On the basis of all of the above evidence, it was well open to the jury to find beyond reasonable doubt that Mumtaz Qaumi was soliciting the murder of Abdul Abu-Mahmoud, either directly or as part of a joint criminal enterprise with Jamil Qaumi.

The occupants of the BMW were Abu-Mahmoud, Khalil Khalil and Hassan Soueid. The Crown alleged that all three had been shot at with intent to murder and that Mumtaz Qaumi was guilty of those three offences, pursuant to the principle of extended joint criminal enterprise. Witness D (using cups available in the witness box) explained how the shooting occurred. His explanation was “We just got out and shot at him” (T.4220.45). Witness D also explained “Then we got out and shot at the car” (T.4226.17). Witness D was on the driver’s side of the BMW and Mohammed Kalal was on the passenger side. Witness D was not able to explain the intent that accompanied his firing of the shotgun. Nevertheless, it was open to infer what that intent must have been based on all of the available evidence.

Shotgun casings located by the police after the shooting, indicated that Witness D had fired four times. Mohammed Kalal appears to have been focused upon shooting Abdul Abu-Mahmoud and/or Khalil Khalil. The damage to the BMW was consistent with him targeting the front passenger seat by firing three times (Exhibit EE; photograph 91). Witness I agreed that he had told police that Mohammed Kalal ran to the passenger side of the BMW, pointed and started shooting the revolver towards Mr Abu-Mahmoud.

Khalil Khalil gave a statement to police, dated 7 November 2013, which was read into evidence. The BMW was his and he drove it to the Chokolatta Café on the night of 6 November 2013. He described a period of time while he was there with Abu-Mahmoud and Hassan Soueid. When they left the restaurant, they all went to the BMW and Khalil got into the driver’s seat. Mr Abu-Mahmoud got into the front passenger seat and Hassan Soueid sat in the back seat in the middle.

Khalil described Witness D walking to the BMW with a shotgun. Khalil hid behind the steering wheel and heard a single gunshot. He heard a shotgun being pumped and the second shot smashed the driver’s side rear window. It was his belief that the shotgun had been fired again through the same window. Khalil said “From the angle of where the man was shooting, he would have been aiming for Abdul”. Khalil described a further discharge of the shotgun which he said “Would have been aiming for me”.

The Crown submitted that on Khalil’s evidence, both he and Abu-Mahmoud were targeted in circumstances where an intent to kill could be inferred from the use of the shotgun and from the instructions given by Mumtaz Qaumi when he solicited the murder of Abu-Mahmoud.

Hassan Soueid gave two statements to police, dated 7 November 2013 and 14 November 2013. Those statements were read into evidence. He described getting into the middle of the back seat of the BMW. He heard a loud noise and felt something hitting the back of his head and right shoulder area. He ducked down and lay along the back seat during the remainder of the shooting.

Both Abu-Mahmoud and Hassan Soueid were injured by shotgun pellets. Hassan Soueid received injuries to the back of his skull, right shoulder and right bicep. Abu-Mahmoud also had subcutaneous shrapnel under the skin at the back of his head and neck, again to the right side of his body.

Witness D was shown a photograph of the damaged BMW being 102 of Exhibit EE by counsel for Farhad Qaumi. This photograph showed the damage to the head rest of the driver’s seat caused by the shotgun. Witness D agreed that if the driver had been sitting normally, he would have had his head blown off.

It was well open to the jury to find that Witness D and perhaps also Mohammed Kalal fired at all three occupants of the BMW with an intent to kill each one of them. That result must have been foreseen by Mumtaz and Jamil Qaumi as a real possibility as a result of directing Witness D and Mohammed Kalal to shoot and kill Abu-Mahmoud. Given the damage to the head rest of the driver’s seat of the BMW, Witness D appears to have fired in that direction and thus have intended the death of Khalil Khalil. Hassan Soueid also suffered injury pursuant to one of the four discharges of the shotgun. Because of that, one can readily conclude that he was also targeted.

Moreover, given what had occurred in the Hamzy and Zakaria shootings, it must have been within the contemplation of Mumtaz and Jamil Qaumi that innocent associates of the proposed target might also be shot.

Witness I acknowledged that there had been a conversation between him, Witness D and Mohammed Kalal about not carrying out the shooting or alternatively, just shooting at the car. Witness I when cross-examined by counsel for Mohammed Kalal, accepted that it “could have been” part of the agreement to shoot at the car rather than the occupants. Jamil Qaumi gave evidence that the shooters were going to shoot at the car not its occupants. Whether the persons who discharged the firearms had an intention to kill was a question of fact for the jury. In spite of any evidence given by the shooters to the contrary, the physical evidence was capable of supporting the inference that there was an intention to kill. Accordingly, it was open to the jury to reject that evidence and to draw inferences from their own observations of the photographs and the damage to the BMW. The evidence of what actually occurred is the best evidence of whether Witness D and Mohammed Kalal were shooting at the occupants of the car or merely at the car itself.

It was well open to the jury to find beyond reasonable doubt on the basis of that material that the shooters were aiming at the occupants of the car. It was also well open to the jury to convict Mumtaz and Jamil Qaumi of Counts 13 and 15, pursuant to the principle of extended joint criminal enterprise. This was because although their intention was to shoot Abu-Mahmoud and kill him, Mumtaz and Jamil Qaumi must have foreseen the possibility that the persons in the car would also be shot at with an intention to kill them. Whether the person who discharged the firearm had an intention to kill was a question of fact for the jury.

Although it was open to the jury to find that the shooters fired with an intention to cause grievous bodily harm rather than death, the jury was not compelled to make that finding. Nowhere in their submissions do Mumtaz and Jamil Qaumi explain why the jury could not conclude from the actions of two people, one of whom had a shotgun and fired four times, and the other who had a revolver and fired at least three times, that their intention was to kill not merely to cause grievous bodily harm.

The Crown case was that the Elkadi shooting took place outside townhouses 28 and 29 at 142 Greenacre Road, Greenacre at about 1am on 29 November 2013. The charge against Farhad and Mumtaz Qaumi was that “in the course of organised criminal activity they discharged a firearm with reckless disregard for the safety of others”. There was no evidence that either Farhad or Mumtaz Qaumi were present at the shooting. There was no forensic evidence linking them to the shooting and no admissions by Farhad and Mumtaz Qaumi that they were involved in the shooting. The Crown case was almost entirely based on the evidence of Witnesses L and M.

Witness L gave evidence that Farhad and Mumtaz Qaumi arrived at his new address in Penrith on 28 November 2013. Witness L said that this meeting took place at Orchard Hills in the Hills area. Witness L said that Witness M was not present. Witness L said that Farhad told him that a former member of the Blacktown BFL, Sina Mirzaei, had been shot and that they had to retaliate. Witness M was telephoned. Witness M did not remember how it came about but said that she met with Mumtaz, Witness L and Farhad at a park in Villawood.

Her evidence was:

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

Forensic examination confirmed from the bullets fired in this incident, that Witness l was given the .45 pistol that had been used in the Hamzy shooting and not recovered by police.

Witness L’s evidence was somewhat different from that of Witness M in that he described a meeting at his house in Penrith with Farhad and Mumtaz Qaumi and gave the following evidence:

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

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

Witness L was cross-examined by senior counsel as follows:

The Crown tendered evidence of telephone records involving Witness L leading up to the shooting. This became Exhibit 6D. There was said to be a conversation from a phone associated with Farhad Qaumi. There was, however, no message which referred to Farhad Qaumi and the voice of Farhad Qaumi was not identified on any of the intercepted telephone calls.

The other relevant phone records were a summary of telephone material relating to Witness M. These records became Exhibit 5H. However, it was submitted on behalf of Farhad Qaumi that although the transcript of those telephone calls attributed the male voice to Farhad Qaumi, the evidence of Witness M was that at all times the male speaker was Mumtaz Qaumi.

It was submitted, on behalf of Farhad and Mumtaz Qaumi, that it was not open to the jury to be satisfied beyond reasonable doubt that either Witness M or Witness L was telling the truth. They submitted that there were significant differences between the two versions, in particular as to where the initial meeting took place and as to what Witness M and Witness L were initially asked to do. It was submitted that Villawood was a considerable distance from Orchard Hills which strongly suggested that the evidence of one of them as to where the initial meeting took place was wrong.

The question of the acceptance or rejection of the evidence of either or both Witness M and Witness L was very much a jury question. Except in one respect there was a considerable congruence between their evidence as to what happened on that night and in particular, the reasons for why Witness L was reluctant to engage in a drive-by shooting and/or shoot at Mohammed Hamzy’s mother. The obvious exception was the difference in their evidence as to what, if anything, Witness M told Witness L about the young men standing in front of the townhouse.

It follows that on the facts of this case, it was well open to the jury to be satisfied beyond reasonable doubt that the evidence of Witness M and Witness L was substantially correct.

That does not end the matter. At trial, an application was made by Farhad and Mumtaz Qaumi that a verdict of not guilty by direction be entered in respect of this count (R v Qaumi and Others (No 58) [2016] NSWSC 1158).

They submitted that the critical witness as to the nature of the joint criminal enterprise alleged by the Crown was Witness L since Witness M could not give evidence about his state of mind. They submitted that according to Witness L, he rejected the original direction to shoot Mohammed Hamzy’s mother, but did agree to do a drive-by shooting at the home of Mohammed Hamzy’s mother at Greenacre. They noted that Witness L’s evidence was that he subsequently determined that he was not prepared to take part in the joint criminal enterprise, i.e. engage in a drive-by shooting.

It was submitted on behalf of Farhad and Mumtaz Qaumi that Witness L’s evidence was that he was then persuaded to take part in a new criminal enterprise proposed by Witness M, i.e. not to shoot Mohammed Hamzy’s mother, which had initially been proposed by Farhad, nor to do a “drive-by” as ultimately proposed, but to engage in a quite different activity. This was the deliberate shooting at people said to be cousins of Mohammed Hamzy at the direction or suggestion of Witness M.

It was common ground and uncontroversial that none of the persons whom Witness L shot at had any family relationship or social relationship with the Hamzys. Farhad and Mumtaz Qaumi submitted that the shooting took place outside townhouse 29 of the Greenacre Road complex whereas townhouse 18 in which Ms Leila Hamzy lived was on the western side of the street and some distance away from townhouse 29 being near the bottom of a U-shaped driveway. Farhad and Mumtaz Qaumi submitted that it was not open to the jury to be satisfied beyond reasonable doubt that they were a party to a joint criminal enterprise to shoot at the persons whom (according to Witness L) Witness M alleged were cousins or criminal associates of Mohammed Hamzy. On the Crown case, these persons were the intended victims of the joint criminal enterprise at the time of the shooting. They submitted that there was no evidence that the house which was incidentally damaged in Witness L’s shooting of people close to the entrance of Greenacre Road was the house of a relative of Mohammed Hamzy. In other words, the original criminal venture agreed to by Farhad and Mumtaz Qaumi with Witnesses L and M was not completed in that Witnesses L and M decided to commit a different crime, namely shooting at people identified by Witness M as being associated with Mohammed Hamzy.

Farhad and Mumtaz Qaumi submitted that there was no evidence capable of establishing the crime charged in Count 18. They placed reliance upon the length of time (estimated by Witness L to be about half an hour) between the decision not to complete the “drive-by” shooting and the different location of the townhouse that was actually struck and the townhouse that was supposed to be the target of the shooting.

The application for a verdict by direction, which relied upon the above analysis, was rejected by the trial judge. His Honour set out his reasoning in R v Qaumi and Ors (No 58) [2016] NSWSC 1158 at [23] as follows:

His Honour relied upon the statements of principle in McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 at 113-114:

Later at 117, the Court said:

His Honour went on to conclude:

The decision of the jury involved a factual finding that the criminal venture agreed upon, or instigated by Farhad and Mumtaz Qaumi, had not come to an end by the time the shooting took place. In reaching that conclusion, the jury was in no better position than this Court. On my analysis of the facts, it was simply not open to the jury to find beyond reasonable doubt that the joint criminal venture was continuing at the time when the shooting took place.

As indicated by the summary of the facts set out above, the joint criminal venture was for Witness L to drive past the townhouse occupied by LC’s mother and fire shots into the townhouse. That is not what happened. The evidence as to what happened is all one way and it is to the effect that either Witness L of his own volition decided to fire shots at a group of persons outside townhouse 29 or at the instigation of Witness M he fired shots at that group of persons believing them to be cousins of LC. It should be noted that there was a considerable distance between townhouse 29 and town house 18 where LC’s mother lived. There was no evidence as to the actual distance but implicit in the evidence was that the mother’s townhouse was some distance downhill near the bottom of a U-shaped driveway.

On that review of the facts, the only common element between what occurred and what was planned to occur by Farhad and Mumtaz Qaumi was the firing of shots. This was clearly not the criminal venture planned by them which they ordered Witness L and Witness M to carry out.

The matters relied upon by the trial judge in rejecting the verdict by direction application by Farhad and Mumtaz Qaumi, even taken together, do not alter that conclusion. The fact that townhouse 29 was struck by bullets and was a townhouse in the same complex as that of LC’s mother, is not a sufficient connection to the planned criminal conduct. Similarly, the fact that Witness L happened to be in the vicinity of townhouse 18 and was armed is also too remote to bring what happened under the umbrella of the planned criminal enterprise. Finally, the fact that the three earlier shootings gave rise to injuries to persons other than the true targets is not a proper connecting factor in that the injuries to those persons were unplanned, albeit incidental to the criminal conduct which was planned.

The essential elements of a joint criminal enterprise require more than one person acting in concert in pursuit of a common criminal purpose. Here that purpose was firing shots at townhouse 18 because it was the home of LC’s mother. The indiscriminate shooting at unknown persons (albeit on Witness L’s testimony, cousins of LC) was not part of the original arrangement but constituted a new enterprise embarked upon by Witness L of his motion or by Witnesses L and M. It formed no part of the criminal enterprise envisaged by Farhad and Mumtaz Qaumi. That criminal enterprise came to an end when Witness L decided he would not carry out the particular shooting which they had directed.

For similar reasons, it was not open to the jury to find beyond reasonable doubt that the elements of extended joint criminal enterprise applied.

The state of mind of Farhad and Mumtaz Qaumi as instigators of the incident should be taken at the point where Witness L and Witness M left the park in Granville to commit the drive-by shooting. At that point in time, they had agreed to a drive-by shooting of LC’s mother’s townhouse. For the principles of extended joint criminal enterprise to apply, the jury would have had to have found that Farhad and Mumtaz Qaumi foresaw the reasonable possibility of a shooting at some other part of the residential complex in the same way as they foresaw the reasonable possibility that one of the shooters tasked with the Zakaria shooting might shoot another occupant of the house within intent to do grievous bodily harm. The essential element which is missing from this incident is that the shooting took place during the carrying out of the original criminal enterprise. The shooting which took place on this occasion was part of a new criminal enterprise, either conceived by Witness L and Witness M, or Witness L alone.

It follows that a verdict of acquittal should be entered in favour of Farhad and Mumtaz Qaumi in respect of Count 18.

The .45 calibre pistol is first mentioned in relation to the Hamzy shooting. The Crown relied upon the evidence of Witness J. He said that there was a discussion of how Mohammed Hamzy was to be shot in which Farhad Qaumi said “Yeah pretty much run in the garage and shoot whoever is in there” (T.3962.20). That comment was directed to Witness L. Subsequently, Farhad Qaumi attended at the residence of Witness J. When Witness J opened the door for him, Farhad Qaumi walked in with the .45 calibre pistol in his hands. He asked Witness J for gloves, put them on and proceeded to load the .45 pistol. Subsequently, he and Farhad Qaumi left the house and he saw Farhad Qaumi give the .45 pistol to Witness L. As he did so, Farhad Qaumi took the safety catch off and said “Don’t shoot yourself, it’s ready to shoot” (T.3964.32).

Witness L said that on the night of the Hamzy shooting, he could not remember if he was handed the pistol by someone or if it was already in the car when he got in. Witness M said that the first time she saw the pistol on the night of the Hamzy shooting was in the car.

Before the Elkadi shooting on 28-29 November 2013, the evidence of Witness L and Witness M was that Farhad Qaumi provided the .45 pistol to Witness L for him to use in the shooting.

Possession of a firearm, pursuant to the definition within s 4 of the Firearms Act 1996 (NSW) includes:

Accordingly, physical possession is not a necessary requirement for the proof of possession of a firearm. Even if Farhad Qaumi did not have physical custody of the .45 pistol, he could still be in possession. It follows that on the above evidence, it was well open to the jury to find beyond reasonable doubt that between 28 October and 30 November 2013 Farhad Qaumi possessed the .45 pistol.

From 5 November 2013 until 8 January 2014, various intercepted telecommunications and meetings were recorded by police. These were tendered as Exhibits 8S and 8T (through Witness A). Exhibit 8V (through Witness A), Exhibit 7P (through Witness J) and Exhibit 9A (through Detective Senior Constable Sharkey). An undercover police officer, “George”, gave evidence of telecommunications involving him as recorded in his statement, dated 7 January 2014.

Witness L gave evidence that Jamil Qaumi would pick him up from his house in Blacktown every day. At some time after the Hamzy shooting, Jamil Qaumi came to Witness L’s house carrying a bag which Jamil Qaumi told him contained guns and drugs. Jamil Qaumi said he was worried that police would search his car so he needed to store the bag somewhere. Witness L showed Jamil Qaumi a gap under his house where Jamil Qaumi put the bag.

Jamil Qaumi called Witness A, and Witness L and Jamil Qaumi met up with Witness A next to a train station. Jamil Qaumi told Witness L and Witness A that his house was going to be raided and he wanted Witness A to store the bag containing the guns and the drugs. Witness L gave evidence that the three men then went to K-Mart to buy a new sports bag, as Jamil Qaumi wanted to replace the other bag. Witness L recalled that they returned to his house where he went inside and Jamil Qaumi took the bag from under the house. Witness L saw Jamil Qaumi and Witness A swapping the bags over and saw that a “big thing already wrapped up in a blanket” was transferred to the new bag. Witness C then arrived at Witness L’s house. Witness L recalled that he put the old bag into a rubbish bin and drove with Jamil Qaumi to Witness A’s house. Witness L recalled that Witness A drove in front of Witness C’s car with the bag containing the guns and drugs in the boot.

When they arrived at Witness A’s house, Witness A took the bag from the boot of the car and started walking with it. Witness L and Jamil Qaumi then left. Witness L did not see where Witness A went with the bag.

In examination in chief, Witness A gave evidence that the day after the Zakaria shooting, 5 November 2013, he had a meeting with Jamil Qaumi and Witness L. He received a call from Jamil Qaumi telling him to “come down” and was picked up at Granville train station by Witness L and Jamil Qaumi. On the phone, Jamil Qaumi told Witness A he was to purchase a bag or wait until they met him and the three of them would purchase a bag together. Witness A recalled that he, Jamil Qaumi and Witness L then drove to a quiet location where they “told him [Witness A] to keep his phone in the car”. Witness A gave evidence that Jamil Qaumi told him “We are at war with the Bankstown chapter of BFL”. Witness A recalled Jamil Qaumi then brought up the meeting at the Casino on 2 November 2013 and how at that meeting members of the Bankstown BFL said words similar to “They’re after us, not to trust anyone, not to hang around anyone. You don’t know who’s pissed off, don’t answer any calls”. Witness A recalled that Jamil Qaumi also said on this occasion that “Masood Zakaria’s father was going to co-operate with the police and that Witness L had some guns at his house and that he wanted him [Witness A] to take them”. Jamil Qaumi told Witness A that they believed Masood Zakaria’s father was able to identify Witness D as being at the front door and involved in the shooting and planned to tell this to police.

At this same meeting, Witness A recalled that Witness L said to him “You gotta help me out … Look Farhad wants you to take the guns, you’ve got to stash them and store them”. Witness A stated that he initially refused but felt he did not have a choice recalling that they said “Look, our houses are going to be raided, you’re a bit of a clean skin, you take them”.

Witness A said he, Witness L and Jamil Qaumi then drove to meet Witness C. They all then went to a K-Mart in Blacktown where they purchased a bag and a lock paid for by Witness A. Witness A gave evidence that they drove to Witness L’s house, where the guns and ammunition were packed in the bag. Witness A “only saw vaguely what was being put in the bag, but [he] was told there were two guns, bullets and some pills and an 8-ball of coke”. The bag was packed at the back of Witness L’s house.

Witness A got into a car with Witness C while Witness L and Jamil Qaumi were in a separate car behind them. Witness A recalled that the bag was in Witness C’s car. At some point, Witness A was told by Jamil Qaumi “If we ever need it, the next night or two, make sure you answer your phone. You locate it, keep it in your bedroom, keep your phone on, we’re going to need it very soon”. Witness A also recalled that Jamil Qaumi said “That the gun was dirty and used in the Zakaria shooting and the Odisho shooting”. Witness C drove Witness A to an area close to where he was living at the time. Witness A remembered saying to the group “Look, leave it with me” and waited until they left. He stated he then “dumped” the bag in bushland in the Pendle Hill area. He did not touch the bag before dumping it and the bag had a lock on it. At some time before 12 December 2013, Witness A returned to check that the bag was still there but did not touch it “Just looked from a distance back to see if it was still there”.

Witness A said that on 12 December 2013, he met with Detective Inspective Patton and informed him about this bag containing guns and drugs.

Witness A recalled that at about this time a person in the BFL Blacktown group named Masieh Amiri was trying to get in contact with him. Witness A was told by his work colleagues that on several occasions “people” came looking for him. He was aware that Masieh Amiri had attended his workplace on a couple of occasions when he was not there. He received a few voice messages and Masieh Amiri also called his work and left a message saying his name was “John” and he wanted the bag.

On 28 December 2013, Witness A visited Jamil Qaumi who was then in custody. The conversation was recorded by police and tendered and marked Exhibit 8V. After that meeting, he received a number of calls and messages from Masieh Amiri. A bundle of transcripts of telephone intercepts relating to Witness A were marked and tendered as Exhibit 8S.

Under cross-examination by counsel for Jamil Qaumi, Witness A agreed that he had said in his statement to police on 13 December 2013 that he, Jamil Qaumi and Witness C went to the clubhouse in Blacktown to retrieve the bag. He said that he had subsequently retracted that and confirmed that it was untrue. He later told police it was Witness L’s house they went to.

Witness J gave evidence concerning a telephone conversation between him and Farhad Qaumi on 5 December 2013. That evidence was:

The content of that telephone conversation between Farhad Qaumi and Witness J was a discussion about Witness J trying to get hold of Witness A. Witness J suggested that Witness A had either run away or that he was “a dog”. Witness J commented that he had tried to call Witness A “600 times” and that Witness A kept switching his phone on and off. Witness J and Farhad Qaumi discussed the fact that “the boys” went to visit Witness A at his place of work but Witness J had not heard from Witness A since.

The Crown tendered a large bundle of telephone records relating to Counts 20 – 22, which became Exhibit 9A. Farhad Qaumi was only heard in three of these conversations. In a call from Mumtaz Qaumi to Harris Sedat on 16 December 2013 (Exhibit 9A p41) Farhad Qaumi can be heard advising Mumtaz Qaumi “Just tell him where you are”. In the second call on 3 January 2014 (p 62) Masieh Amiri told Farhad Qaumi that [Witness A] was coming around to see him. Arrangements were made for Farhad Qaumi to send him an address on a different phone number. In the third call on 4 January 2014 (p 64), Masieh Amiri and Farhad Qaumi discussed someone not turning up at a meeting with Masieh. It was accepted that clearly Farhad Qaumi wanted to see Witness A. What was in issue was the reason for him wanting to see Witness A.

On 14 December 2013, Mumtaz Qaumi called Masieh Amiri to give him his telephone number. Masieh told Mumtaz Qaumi that he thought Witness A was a “snitch” as he could not get in contact with him. Mumtaz Qaumi asked Masieh to call Witness A’s work and “try to get hold of this f---ing little dog [call his work, if he is there we will go to his work now]”. Mumtaz Qaumi told Masieh to keep trying to call Witness A. (In the transcripts words in brackets indicated that a language other than English was being used.)

There was a telephone intercept between Mumtaz Qaumi and Masieh Amiri of 25 December 2013. In the call, Masieh tells Mumtaz that he has “the thing, but can’t find the balloons because everywhere is shut”. Mumtaz Qaumi suggested to Masieh that he should get the balloons early in the morning before he meets with the guy whom he is expecting tomorrow. Detective Sharkey said that in his experience, balloons were used as a way to hide drugs.

There was a further intercept on 27 December 2013 when various text messages were sent from Masieh Amiri to Mumtaz Qaumi. Masieh said that he “Respects Mumtaz and F and if they need anything, he is there for them”.

There was a further intercept of a conversation between Masieh Amiri and Mumtaz Qaumi on 28 December 2013. Masieh Amiri called Mumtaz Qaumi to tell him that Witness A saw Jamil Qaumi in Long Bay and to let Mumtaz Qaumi know that Witness A would give them an address to pick the bag up, but Witness A no longer wants to do “all this” anymore.

There was a further intercept on 2 January 2014 when Witness A called Masieh Amiri to arrange a meeting to hand over the bag. Witness A told Masieh “the guy” who was hiding the bag for him [UCO George] will bring it tomorrow to the Bankstown area. Masieh said he could not go to Bankstown. Witness A stated “It’s not with me. If it was with me I would give it to you you know”. Witness A asked if “F is all right and that on the news it said Farhad was shot on a boat cruise”. Witness A said he spoke to Jamil Qaumi and Mumtaz Qaumi and that they told him to speak to Masieh and “just give it to you, that’s it and you’re gonna …”. Masieh said he would talk to Mumtaz Qaumi. Witness A said that they should not talk on the phone as he was being watched. Masieh told Witness A that the police came to his house every day. Witness A asked if it was Masieh who was coming to his work “all the time” and Masieh confirmed that it was. Witness A stated “Jamil told me he goes, he goes I’ve spoken to Mumtaz already. He goes to me “I’ll give you the party things you give the other things to Mumtaz, one big and one little. I will call you tomorrow afternoon”. Witness A told Masieh that “the guy [George] doesn’t want to touch it [the bag].” Masieh told Witness A he did not want to risk coming to Bankstown because he was being watched. Witness A explained he would give everything to Masieh and he would give the rest to Mumtaz. Witness A told Masieh that he went overseas because he was arrested.

There was a further intercept on 2 January 2014 in which Masieh Amiri called Mumtaz Qaumi, letting him know that if he or F needed him, he was there and he was seeing Witness A the following day.

In an intercept of 3 January 2014, Masieh Amiri called Witness A. Witness A told him that he wanted to talk to him. He said “No, it’s not with me, it’s with my mate, it’s with my mate and my mate – I wanted, I wanted to speak to you about something”. They arranged to meet at Kellyville Plaza. Witness A told Masieh he did not have a car and said “You want me to chuck the stuff in a taxi? The stuff is not with me. It’s with my mate who stored it away special. He doesn’t want to touch it. He wants one of youse to come and pick it up”. Witness A said Jamil Qaumi told him “Give the party stuff to you and the other stuff to, to [those he goes boom boom to Mumtaz]”. They arranged to meet at Kellyville in a hour’s time. It was following that call that Masieh Amiri called Farhad Qaumi on 3 January 2014 in the telephone intercept already referred to.

In a later intercept on 3 January 2014, Masieh Amiri called Witness A. Witness A told him that he was on his way to meet him. Masieh responded “Bro, go get the thing and bring it this way, bro … nah nah bro, f… me dead [Get in a cab, come over here and hand it over then grab it please] … Go over there with the bloke and f…ing get that put it in a cab and bring it over here bro. I’m doing you a favour bro otherwise you will have to speak you know what I mean”. Witness A responded that he would give them George’s number because he did not have “the stuff” and that it was with George.

Approximately an hour later, there was a further intercept when Masieh called Witness A. Masieh asked where Witness A was. Witness A told him that he could not meet up until later that evening because “the guy” whom he gave the bag to is delaying him. He was recorded saying “It’s not with me, I had given it to someone and had given money to store it” and “Yeah, just give me a couple of hours. I got to speak to this George bloke. He is a courier, he is a courier, he is a mate of mine. I gave it to him a couple of weeks before I left overseas”. Witness A told Masieh that as soon as he gets it, he would give it to him.

It is following that call that on 4 January 2014 at 1.46am, Masieh Amiri called Farhad Qaumi to let him know that he did not see “the guy” and would leave it until the next day. Farhad Qaumi said that he would ring the next day. The overwhelming inference is that this is a reference to Witness A failing to meet Masieh Amiri as arranged.

On 4 January 2014 at 13.36, Witness A called Masieh Amiri. Masieh told Witness A that he had been in touch with Witness A’s contact “George” who was asking for $10,000 for the bag. Masieh told Witness A that he wanted to set George up by telling him they had the money and then grabbing him. Witness A said that he would tell “Taz” what had happened. There was then a discussion about what was in the bag – “two handguns that’s all”. Masieh asked “Where are the little ones?” to which Witness A responded “It’s all in one bag”. Masieh expressed his concern about what to tell Mumtaz. Masieh said “I asked F’s cousin, [Witness J], and Farhad to come and get the bag”.

In a further intercept of a call on 6 January 2014 at 16.52, Witness A called Masieh Amiri and told him that “This bloke [George] is going to sell the bag”. Masieh said he spoke to George the night before and he was willing to meet up. Masieh asked if he should call Taz. Witness A said to be careful about what they said on the phone. There was then a further discussion about the contents of the bag. Witness A asked Masieh for his help with retrieving the bag because he could not do it on his own. Witness A said “I didn’t want to get F and Taz and that involved ‘cos they gonna, they gonna want to kill me bro”.

Ten minutes later, Masieh called Mumtaz Qaumi and they discussed the fact that Witness A gave the “shirts” to a guy named George, who was demanding $10,000 for it. Mumtaz told Masieh to text him George’s phone number and address. Mumtaz told Masieh to tell Witness A “Say we will give the money, we will go to his house”.

In a further intercept on 6 January 2014 at 17.13, Masieh Amiri called Witness A and told him that he [Mesiah] was told to get George’s address so that “We can … f---ing go”. Witness A said he would try to get it.

Later on 6 January 2014 at 17.44, Masieh Amiri called Mumtaz Qaumi to tell him that Witness A did not have George’s address. Mumtaz told Masieh to call Witness A and tell him that Mumtaz wanted to see him. Mumtaz told Masieh to get some friends together and to tell George he had the money for the bag. Once they meet, Masieh was to hit George and take the bag. Mumtaz told Masieh “Whatever way it happens, just tell him you got the money and ask him to bring the stuff, once he gets there hit him hard, bash him and get the stuff off him. If he doesn’t have the things detain the guy and don’t let him go until he shows you where the things are”.

On 8 January 2014 at 11.42, there was another call which was intercepted in which Masieh Amiri called George to try to get the bag back. George told him that he was going to sell the bag to someone else and Masieh threatened that he should not do that. George said he thought Masieh’s voice sounded different. George told Masieh he had a buyer set up. George asked who the bag belonged to and Masieh says “Trust me, you do not want to know who it belongs to. Even that person who wants to buy it off you, [if] they knew who it belongs to, they wouldn’t want to f---ing touch it”. Seven minutes later, Masieh called Mumtaz Qaumi to tell him what George said. Mumtaz Qaumi told Masieh to call George and say “One day we will get you and f… you”. Mumtaz Qaumi then told Masieh to call Witness A and tell him that this is his fault and “if I see you, I will kill you” and “Call [Witness A] and tell him you gave it to this guy so it’s all on you now. We are after you and if we find you, we will kill you”.

The Mossberg shotgun which was in the bag became Exhibit NNN. It had been used in the Zakaria shooting. The .38 revolver which was used in the Hamzy shooting became Exhibit MMM. There was also a quantity of ammunition. The bag contained a quantity of tablets which were found to contain N-(2)-methoxylbenzl)-2, 5-Dimethoxy-4-Iodophenethylamine. The Mossberg shotgun had been identified by Witness B as having its butt sawn off in the Blacktown BFL’s clubhouse in the presence of Farhad Qaumi and Mumtaz Qaumi (T.4488-4489). Witness A gave similar evidence (T.4611.17). Witness C gave evidence of seeing the shotgun at Witness L’s house. He had arrived after the others who participated in the Zakaria shooting. On the evidence of the others (Witness L - T.2834.46-2839.27; Witness I - T.3283.24-25; Witness D – T.4204.47-4205.18) it was open to the jury to conclude that Jamil Qaumi had brought the firearms to Witness L’s house.

Farhad Qaumi’s submission that the Mossberg shotgun was in the possession of Witness I should not be accepted. Further, the custody of any of these firearms at any particular time by any other gang member did not detract from the Crown’s submission that the possession of the firearms was with the Blacktown BFL and in particular, its leadership.

Witness C gave evidence of seeing not only the shotgun but also a black revolver in the clubhouse (T.3772.46). Later, he observed a shotgun and pistol at the house of Witness I before the Odisho shooting (T.377.46). The applicants submit, based on the evidence of Witness C, that this .38 revolver was in the possession of Witness I. This .38 revolver used in the Odisho shooting and later in the shooting at the Chokolatta Café was, however, seized by police shortly thereafter and did not go into the bag of guns and drugs.

In that regard, Witness A gave evidence that Jamil Qaumi told him that the .38 revolver had been used in the Odisho shooting and the Zakaria shooting. In fact this .38 pistol had not been used in the shootings. Accordingly, it appears that Jamil Qaumi was confused about which shootings this pistol had been used in.

As with the .45 calibre pistol, the provisions of the Firearms Act apply so that possession of those firearms, pursuant to the definition within s 4, includes:

As with the .45 calibre pistol, even if the applicants did not have physical custody of those weapons, they could still be in possession because they controlled where they were kept and by whom.

The pharmacological effect of the tablets contained in the bag was similar to that of LSD (T.4908.39-42). It was submitted that the provenance of those drugs was unclear. There was, however, evidence of where those drugs came from and that the Blacktown BFL possessed and sold such substances. The detail of those sales is set out in Farhad Qaumi’s written submissions at [174]-[176].

Witness A and Witness G both gave evidence of observing tablets with a similar appearance to those which were in the bag, i.e. with a lightning bolt logo on the pills. Nazir Akbari was doing the selling from different locations at different times. Witness A gave this evidence:

The overwhelming inference to be drawn from the conversations between Masieh and Witness A on the one hand and Masieh and Mumtaz Qaumi is that they were talking about the bag of guns and drugs. Even the limited conversations between Farhad Qaumi and Masieh and the reporting by Masieh that a particular meeting with an unnamed person had not taken place, make it clear that the subject was the bag and its contents and the person who did not attend the meeting was Witness A. It was accordingly well open to the jury to make a finding to that effect.

Farhad Qaumi submitted that he did not speak to “George” because the bag and its contents were not his. There is another reason for why Farhad was reluctant to speak to George. To do so would have directly implicated him with respect to the bag and its contents. He was clearly cautious in the manner in which he spoke about criminal activity and his method of speaking in public parks in the absence of mobile telephones demonstrates that caution. The telephone intercepts of conversations between Mumtaz and Masieh Amiri clearly implicate Mumtaz and allow a finding that he “possessed’ the bag and its contents.

When read in context, the telephone intercepts explain clearly why Farhad Qaumi wished to speak to Masieh Amiri about Witness A. It is clear from the contents of the telephone intercepts that Mumtaz had a clear and obvious interest in the bag and its contents being recovered. Similarly, before he went into custody, it is clear that Jamil Qaumi took a proprietorial interest in the bag and its contents. The evidence of Witness A makes this clear. Finally, even though the telephone intercepts involving Farhad Qaumi are very limited, there are references in other conversations to him which made it clear that he was a person interested in the bag and its contents.

The Crown submitted that these telephone conversations in conjunction with Exhibit 11U (the recording of the conversation between Farhad Qaumi and Mumtaz Qaumi following their arrest at the Wyong Police Station on 9 January 2014) take on considerable significance. It is clear that Farhad and Mumtaz Qaumi realise the consequences of having spoken on the telephone with respect to the bag with guns and drugs.

The Crown submitted that the significance of Farhad Qaumi and Mumtaz Qaumi saying that there would be no evidence of DNA or fingerprints, can be understood as an admission that they believed that they had sufficiently distanced themselves from the bag and its contents to avoid being linked to it by forensic evidence. Shortly thereafter, however, Mumtaz Qaumi made the observation that “Masieh kept calling us bro” indicating his knowledge of how they might be implicated through their actions in relation to the bag and its contents. The Crown noted the response of Farhad Qaumi, which could also operate as an admission, i.e. “Nah, they know it’s mine cuz”. Later in the transcript, Farhad Qaumi said “Your phone’s f…ed me” to which Mumtaz Qaumi replied “Masieh f….ed us bro”, both of which were factually correct and implicated each of them.

The Crown submitted that in the rest of the conversation, Farhad and Mumtaz Qaumi both appeared to accept their guilt in relation to the charges with respect to the bag and its contents. What they appeared to be doing was trying to prepare a version of events consistent with innocence, including that they had no knowledge of what was in the bag and that the worst that they had done was in connection to steroids rather than prohibited drugs.

Read in its entirety, the effect of the telephone intercepts and the recorded conversation after the arrest of Farhad and Mumtaz Qaumi do link them directly to the bag and its contents. It follows that it was well open to the jury to find beyond reasonable doubt that Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi did possess the bag and its contents at the relevant time.

The Crown submitted that the controversies between the witnesses as to how long the firearms were kept at Witness L’s house, the different versions which Witness A gave as to whether the bag of guns and drugs came from the clubhouse in Blacktown or from Witness L’s house are overcome by the quality of the evidence of these conversations. I agree.

The Crown in its closing address, contended that the firearms and drugs within the bag were the tools of trade of the Blacktown BFL possessed by the membership and particularly the leadership of Farhad, Mumtaz and Jamil Qaumi. The Crown submitted that the dates particularised in Counts 20-22 do not span the time from 5 November 2013 and 12 December 2013 when Witness A was tasked with obtaining the bag and secreting the guns and drugs in it. The dates particularised with respect to Count 20 were between 7 October and 12 December 2013. The dates particularised with respect to Counts 21 and 22 were between 6 July and 12 December 2013. Essentially, the Crown case was that the guns and drugs had been possessed by the leadership and members of the Blacktown BFL before 5 November 2013 and that at a point in time in their conflict with the Bankstown BFL on 5 November 2013 when Farhad was leaving the country, these items needed to be hidden away with a gang member on whom there would be less police attention. Thereafter, Witness A secreted the bag in the bush near to where he lived. It remained there and remained in his and the leadership’s possession until he revealed its location to police on 12 December 2013.

Based on the evidence of Witness A and on the telephone calls between him, Masieh Amiri, George, Mumtaz Qaumi and Farhad Qaumi and the recorded conversation between Farhad and Mumtaz Qaumi while they were in police custody, it was open to the jury to convict Farhad and Mumtaz Qaumi of possessing the bag of guns and thus of Counts 20-22.

Mumtaz Qaumi appealed against his conviction in respect of Count 23. No written or oral submissions were made by his Senior Counsel in respect of that count. All that was said was that he relied upon the submissions made on behalf of Farhad Qaumi. That is of little assistance since Farhad Qaumi was not appealing against his conviction for “directing the activities of a criminal group”. In any event, having regard to the contents of this judgment, it is difficult to see how any challenge to the conviction of Mumtaz in respect of Count 23 could be made out.

In summary, there was a considerable body of evidence to implicate Farhad, Mumtaz and Jamil Qaumi in the counts for which they were convicted. That evidence included their own conversations as put forward by witnesses. It remained open to the jury to accept the evidence of the informer witnesses, particularly when some of them were less affected by issues of credibility. Overall, there was a pattern to the offending by the Qaumi brothers. Having committed the Hamzy shooting, Farhad Qaumi feared retaliation and took pre-emptive action to avoid that by the Odisho and Zakaria shootings. The Elkardi shooting was itself a retaliation for the Bankstown BFL’s retaliatory shooting of Sina Mirzaei.

It follows that the orders which I propose in relation to the conviction appeals are:

In relation to the appeals against sentence I agree with Johnson J and the orders which he proposes.

JOHNSON J: I have had the advantage of considering in draft the judgment of Hoeben CJ at CL with respect to the appeals brought by each Applicant against conviction. I agree with his Honour’s reasons and proposed orders concerning the conviction appeals.

Hoeben CJ at CL noted at [104] his acceptance of a Crown submission concerning the capacity of the evidence of an accomplice witness to support the evidence of another accomplice witness. The Crown submission is supported by ample authority: Kanaan and Ors v R [2006] NSWCCA 109 at [221]; Aouad v R; El Zeyat v R (2011) 207 A Crim R 411; [2011] NSWCCA 61 at [211]; Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R (2011) 209 A Crim R 424; [2011] NSWCCA 62 at [289]-[290].

The cases referred to in the preceding paragraph share an important feature with the trial of the present Applicants. The charges, including murder and other serious crimes of violence, arose from alleged organised criminal gang activities. It is a common feature of such trials that the Crown relies upon evidence of witnesses who were themselves involved in criminal gang activities. In Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R, this Court observed at [177]-[178]:

The jury had the opportunity to see each of the “inside” witnesses whom the Crown called to give evidence at this trial. The trial Judge gave the jury detailed directions concerning the evidence of these witnesses and those directions are not challenged before this Court. I have kept in mind the considerable advantage of the jury in seeing these witnesses give evidence when considering submissions made for the Applicants that verdicts of guilty were unreasonable and not supported by the evidence.

Having made my own assessment of the evidence at the trial, and applying the principles cited by Hoeben CJ at CL ( at [13]-[16]), I am well satisfied that it was open to the jury to find each Applicant guilty of the offences charged with the exception of Counts 9 (for Mumtaz Qaumi) and Count 18 (for Farhad Qaumi and Mumtaz Qaumi).

With respect to each of the Applicants, Hamill J proceeded by way of imposition of an aggregate sentence for the matters for which each of the Applicants was found guilty by the jury.

Mumtaz Qaumi and Jamil Qaumi pleaded guilty to charges of contempt of court arising from the conduct of each of them during the trial by way of refusal to answer questions or the commission of an act of violence towards a co-accused in the face of the Court. With respect to the offences of contempt of court, the sentencing Judge imposed separate sentences of imprisonment which were not included in the aggregate sentence. No challenge was brought in this Court with respect to the sentences for offences of contempt of court.

Further, Jamil Qaumi asked the Court to take into account on a Form 1, in the imposition of sentence for Count 1, offences of specially aggravated break and enter (the circumstance of special aggravation being the use of a pistol), using a pistol without a licence and demanding property with menaces. Further reference will be made to these Form 1 matters later in this judgment.

Farhad Qaumi and Mumtaz Qaumi had stood trial before Hamill J, sitting without a jury, upon a charge that each of them did murder Joseph Antoun and, in the case of Farhad Qaumi, a charge of possession of a pistol. His Honour found each of them guilty of those charges: R v Qaumi and Qaumi (No. 12) [2017] NSWSC 134. With the agreement of the parties, when his Honour sentenced each Applicant on 16 June 2017 for the offences of which each was found guilty by the jury at the trial which is the subject of the present appeal, Farhad Qaumi and Mumtaz Qaumi were sentenced as well for the murder of Joseph Antoun, being Count 1 on the second indictment and (in the case of Farhad Qaumi), possession of a pistol (Count 2 on the second indictment).

This Court has already dismissed an appeal against conviction arising from the murder of Joseph Antoun: Qaumi, Farhad v R; Qaumi, Mumtaz v R [2019] NSWCCA 60 (Bathurst CJ, Hoeben CJ at CL and Wilson J).

As his Honour proceeded to sentence Farhad Qaumi and Mumtaz Qaumi by way of aggregate sentences of imprisonment for the offences arising from both trials, the sentence appeals concerning the murder of Joseph Antoun are appropriately to be considered by this Court in the present judgment.

Jamil Qaumi was not charged with any offence relating to the murder of Joseph Antoun.

With respect to Farhad Qaumi, an aggregate sentence of imprisonment for a term of 60 years was imposed, comprising a non-parole period of 43 years commencing on 9 January 2014 and expiring on 8 January 2057 with a balance of term of 17 years commencing on 9 January 2057 and expiring on 8 January 2074.

In compliance with s.53A Crimes (Sentencing Procedure) Act 1999, his Honour nominated the indicative sentences contained in the following table:

It will be noted from entries in this table that the sentencing Judge took into account standard non-parole periods with respect to Counts 18, 19, 21 and 22 on the first indictment and Count 2 on the second indictment which did not accord with the applicable law at the time of these offences. Regrettably, the parties at first instance provided this erroneous information to the sentencing Judge. Understandably, in the complex sentencing exercise required in this case, his Honour acted upon the agreed information in this respect. However, the information was erroneous concerning these five counts and this aspect gives rise to a ground of appeal with respect to sentence.

His Honour imposed an aggregate sentence with respect to Mumtaz Qaumi comprising imprisonment for 50 years with a non-parole period of 36 years commencing on 9 December 2014 and expiring on 8 December 2050, with a balance of term of 14 years commencing on 9 December 2050 and expiring on 8 December 2064.

In accordance with the statutory requirements for aggregate sentencing, his Honour nominated the following indicative sentences concerning Mumtaz Qaumi:

Once again, it will be noted from entries in this table that erroneous standard non-parole periods were taken into account with respect to Counts 18, 21 and 22. This aspect gives rise to a ground of appeal concerning sentence with respect to Mumtaz Qaumi.

With respect to Jamil Qaumi, the sentencing Judge imposed an aggregate sentence of imprisonment for 30 years comprising a non-parole period of 21 years commencing on 7 December 2014 and expiring on 6 December 2035 with a balance of parole of nine years commencing on 7 December 2035 and concluding on 6 December 2044.

Once again, in conformity with statutory obligations, his Honour nominated the following indicative sentences with respect Jamil Qaumi:

Once again, it will be observed from entries in this table that an erroneous standard non-parole period was taken into account with respect to Counts 21 and 22 and this aspect gives rise to a ground of appeal on behalf of Jamil Qaumi.

Farhad Qaumi relies upon the following grounds of appeal with respect to sentence:

Mumtaz Qaumi relies upon the following grounds of appeal concerning sentence:

Jamil Qaumi relies upon the following grounds of appeal concerning sentence:

Although expressed as a separate ground of appeal, Jamil Qaumi’s Ground 6 may be taken as a submission that the aggregate sentence was affected by the erroneous standard non-parole periods taken into account for Counts 21 and 22 so that this Court should intervene and resentence that Applicant. The ground does not contend that the aggregate sentence was manifestly excessive.

Farhad Qaumi has succeeded in his conviction appeal with respect to Count 18. It will be appropriate to resentence Farhad Qaumi putting to one side the indicative sentence nominated for Count 18 as part of the aggregate sentence. Once again, it will be appropriate to utilise the aggregate sentencing provisions for the purpose of sentencing Farhad Qaumi with correct standard non-parole periods to be taken into account in that respect.

Mumtaz Qaumi has succeeded in his conviction appeal with respect to the offences contained in Counts 9 and 18 on the first indictment. Accordingly, the indicative sentences for those matters will be put to one side and it will be necessary to resentence Mumtaz Qaumi for the remaining offences maintaining the use of an aggregate sentence for that purpose. In the course of resentencing Mumtaz Qaumi, regard will be had to the correct standard non-parole periods applicable to his case.

As noted earlier, Jamil Qaumi has not succeeded in his challenge to conviction for any of the offences for which he was sentenced. The outcome of his sentence appeal will require an assessment of the merits of the grounds of appeal raised on his behalf.

The judgment of Hoeben CJ at CL has outlined the facts of offences for which each Applicant has appealed against conviction. For the purpose of the sentence appeals, it is appropriate to set out Hamill J’s concise findings concerning the offences.

As the convictions of Farhad Qaumi and Mumtaz Qaumi for the murder of Joseph Antoun are not considered in the present judgment of Hoeben CJ at CL, it will be necessary to say something about the facts of that offence with respect to those Applicants.

The sentencing Judge made findings of fact with respect to the offences noting that the findings were made to the criminal standard of proof, guided by and consistent with the verdicts of the jury and based on the evidence adduced in the course of the two trials.

Each of the Applicants was found guilty by the jury of the manslaughter of Mahmoud Hamzy (as an alternative verdict on the count of murder charged in Count 1), causing grievous bodily harm to Omar Ajaj with intent to cause grievous bodily harm (Count 2) and conspiracy to murder Mohammed Hamzy (Count 3). No conviction appeal is brought with respect to these counts.

The sentencing Judge made the following findings concerning these offences (at ROS[4]-[12]) (footnotes omitted):

His Honour made the following additional findings (ROS[13]-[14]):

His Honour set the scene for what followed after the Hamzy shooting (at ROS[15]):

The sentencing Judge made findings concerning the objective seriousness of offences which carried standard non-parole periods. With respect to each Applicant, his Honour found that each of the offences in Counts 2 and 3 fell in the middle range of objective seriousness (ROS[177], [201], [215]).

No challenge was made to the factual findings of the sentencing Judge although certain grounds of appeal challenged his Honour’s assessment of the objective seriousness of these offences, a topic to which I will return.

Each of the Applicants challenged his conviction for the offences contained in Counts 4 and 5, with the evidence being considered by Hoeben CJ at CL in his judgment dismissing the conviction appeals concerning these counts (at [109]-[144]).

Once again, it is helpful to set out the sentencing Judge’s succinct findings of fact with respect to these offences (at ROS[18]-[22]) (footnotes omitted):

Once again, his Honour made findings concerning the objective seriousness of these offences. His Honour found (ROS[177], [201], [215]):

No challenge was made to any of his Honour’s findings on sentence concerning Counts 4 and 5.

Hoeben CJ at CL considered the evidence with respect to these counts in the course of determining the conviction appeals (at [145]-[199]).

Farhad Qaumi and Jamil Qaumi were unsuccessful in their appeals against conviction with respect to the offences contained in Counts 7 and 9.

Mumtaz Qaumi was successful with respect to his conviction appeal concerning Count 9 so that his conviction on that matter is to be quashed with a verdict of acquittal to be entered. Accordingly, that matter is to be placed to one side.

It is appropriate to set out the findings of Hamill J concerning these offences although, of course, what his Honour said with respect to Mumtaz Qaumi will be disregarded as he is to be acquitted of the offence contained in Count 9. Hamill J said (ROS[23]-[31]) (footnotes omitted):

Farhad Qaumi -

Farhad Qaumi and Jamil Qaumi did not challenge his Honour’s findings on sentence concerning Counts 7 and 9.

With respect to each of Counts 10 to 15, there was a directed verdict of not guilty with respect to Farhad Qaumi.

Each of Mumtaz Qaumi and Jamil Qaumi was found guilty of the offences charged in Counts 10, 11, 13 and 15. These matters were considered by Hoeben CJ at CL in the context of the unsuccessful conviction appeals relating to these counts (at [200]-[234]).

Hamill J made the following findings of fact concerning these offences for the purpose of sentence (ROS[32]-[37]) (footnotes omitted):

His Honour made the following findings concerning the objective seriousness of the offences committed by Mumtaz Qaumi and Jamil Qaumi (ROS[177], [201]):

Mumtaz Qaumi and Jamil Qaumi did not challenge his Honour’s findings on sentence concerning Counts 10, 11, 13 and 15.

As demonstrated in the judgment of Hoeben CJ at CL (at [235]-[265]), each of Farhad Qaumi and Mumtaz Qaumi was successful in his conviction appeal concerning Count 18 so that those convictions are to be quashed and verdicts of acquittal entered in their place. Accordingly, it is not necessary to recite the findings made for the purpose of sentence concerning those offences.

Jamil Qaumi was not charged with the offence contained in Count 18.

The offences contained in these counts were considered by Hoeben CJ at CL in the context of the unsuccessful conviction appeals relating to these matters (at [266]-[319]).

Hamill J made the following findings concerning these offences for the purpose of sentence (ROS[41]-[42]) (footnotes omitted):

His Honour made the following findings concerning the objective seriousness of offences committed in Counts 19-22 (ROS[177], [201], [215]):

None of the Applicants challenged his Honour’s findings on sentence concerning Counts 19, 20, 21 and 22.

As noted by Hoeben CJ at CL (at [320]), each of Farhad Qaumi and Jamil Qaumi abandoned his conviction appeal directed to Count 23. However, Mumtaz Qaumi appears to have left his conviction appeal on foot concerning this count although no submissions were directed to it on his behalf and his conviction appeal on that count was unsuccessful.

The sentencing Judge made the following findings concerning these offences (ROS[43]):

No challenge was made to this finding on sentence by any of the Applicants.

As mentioned earlier, Farhad Qaumi and Mumtaz Qaumi were each convicted following a Judge-alone trial for the murder of Joseph Antoun. In addition, Farhad Qaumi was found guilty of the firearms offence which was Count 2 on the second indictment. Their appeals against conviction were unsuccessful.

It is appropriate to set out Hamill J’s findings concerning these offences, noting that his Honour’s findings were not disturbed or affected by the decision of the Court of Criminal Appeal dismissing the conviction appeal. Hamill J said concerning these offences (ROS[44]-[52]) (footnotes omitted):

His Honour made the following findings concerning the objective seriousness of the offences on the second indictment (ROS[201], [215]):

No challenge was made by Farhad Qaumi or Mumtaz Qaumi to these findings on sentence.

As noted earlier, Jamil Qaumi asked that a number of offences be taken into account on a Form 1 when being sentenced for the manslaughter of Mahmoud Hamzy. The sentencing Judge referred to the Form 1 offences (ROS[16]-[17]) (footnotes omitted):

It is appropriate to set out observations made by Hamill J concerning the attitude of Courts when sentencing for serious crimes involving gangland violence. His Honour’s statement remains apt for the purpose of this Court determining the sentence appeals.

His Honour said (at ROS[63]-[66]) (footnotes omitted):

These comments of the sentencing Judge bring to mind statements made by sentencing courts when persons have been sentenced for serious crimes of gangland violence including murder. Mention has been made already of these cases when referring to the role of accomplice witnesses in trials of this type (at [325]-[326] above). With respect to some of these offenders, sentences of life imprisonment were passed.

In R v Kanaan and Ors [2002] NSWSC 774, Wood CJ at CL sentenced several persons for a gangland murder. His Honour characterised the offences in the following way (at [31]-[37]):

On appeal, this Court referred to his Honour’s approach to sentence: Kanaan and Ors v R [2006] NSWCCA 109 at [2]:

The conviction appeals were dismissed and the sentence of one offender (El-Assaad) was reduced on appeal.

In R v Darwiche and Ors [2006] NSWSC 1167, Bell J (as her Honour then was) imposed life sentences upon three offenders (Darwiche, El-Zeyat and Aouad) found guilty of very serious gangland violence, including murder. In the course of sentencing Adnan Darwiche to life imprisonment, Bell J said at [38]:

In the course of dismissing an appeal by El-Zeyat and Aouad against their life sentences, Simpson J (Leeming JA and Button J agreeing) said in El-Zeyat v R; Aouad v R; Osman v R [2015] NSWCCA 196 at [61]-[63]:

When considering Aouad’s unsuccessful appeal against a sentence of life imprisonment, Simpson J said at [85]-[86]:

Against the background of statements of this type, it is understandable that imposition of sentences of life imprisonment was under close consideration by the sentencing Judge in this case with respect to Farhad Qaumi and Mumtaz Qaumi.

The sentencing Judge considered the subjective cases advanced with respect to each of the Applicants together with psychiatric or psychological evidence relied upon in that respect (ROS[73]-[100]).

His Honour introduced this topic in the following way (ROS[73]):

His Honour then considered evidence with respect to each Applicant in some detail before returning to the relevance of the Applicants’ subjective circumstances on sentence (ROS[101]):

Hamill J then turned to the impact on the victims of the offences of the Applicants. His Honour commenced this part of his sentencing remarks in the following way (ROS[102]):

His Honour then recited victim impact statements made by family members of deceased victims and from surviving victims of the crimes of violence for which the Applicants were to be sentenced. His Honour explained the use to be made of the victim impact statements of family members of deceased victims.

The sentencing Judge referred to the purposes of sentencing in s.3A Crimes (Sentencing Procedure) Act 1999 and then said (ROS[119]):

His Honour then identified a number of aggravating and mitigating features of the offences to be taken into account for the purpose of s.21A Crimes (Sentencing Procedure) Act 1999. His Honour said (ROS[121]-[126]) (footnotes omitted):

The sentencing Judge then turned to issues of parity and proportionality. It is especially appropriate to refer to what his Honour said in this respect given the issues raised by Farhad Qaumi (Ground 3) and Mumtaz Qaumi (Ground 5) concerning parity with respect to the sentence imposed upon a co-offender, NK, for the murder of Joseph Antoun.

The sentencing Judge said (ROS[127]-[134]) (footnotes omitted):

The sentencing Judge addressed in general terms issues of totality, concurrence and accumulation and indicated an intention to utilise aggregate sentencing with respect to each of the Applicants with the exception of the contempt charges against Mumtaz Qaumi and Jamil Qaumi.

His Honour said (ROS[140]) (footnotes omitted):

His Honour indicated an intention to apply a discount of about 10% with respect to the indicative sentence for the manslaughter of Mahmoud Hamzy when sentencing Farhad Qaumi and Jamil Qaumi because of their offers to plead guilty to manslaughter at a time prior to trial (ROS[141]-[144]).

His Honour then explained his selection of commencement dates for the purpose of the sentencing of each Applicant, an aspect which was not challenged in this Court and need not be repeated.

The sentencing Judge then addressed evidence concerning the conditions of incarceration of each of the Applicants (ROS[148]-[168]) before expressing the following conclusion (ROS[169]) (footnotes omitted):

The sentencing Judge noted a Crown submission that the maximum penalty was appropriate with respect to a number of Jamil Qaumi’s offences. With respect to this submission (which was rejected), and before moving to sentence Jamil Qaumi, his Honour said (ROS[172]-[175]) (footnotes omitted):

His Honour then proceeded to nominate the indicative sentences referred to earlier (at [343]) and also noted an assessment of the objective seriousness of offences to which standard non-parole periods applied as set out earlier with respect to each group of offences.

His Honour then proceeded to sentence Jamil Qaumi in the manner indicated earlier in this judgment (at [342]).

Before moving to sentence Farhad Qaumi and Mumtaz Qaumi, his Honour considered the principles bearing upon the question of imposition of a sentence of life imprisonment under s.61 Crimes (Sentencing Procedure) Act 1999. It is appropriate to set out part of what his Honour said in this respect as it bears upon several grounds, including the parity grounds of Farhad Qaumi and Mumtaz Qaumi based upon a comparison with the sentence imposed upon NK (referred to as Witness L). The sentencing Judge said (ROS[194]-[198]):

It should be kept in mind when considering the parity grounds advanced by Farhad Qaumi and Mumtaz Qaumi, that the sentence imposed upon NK for the murder of Joseph Antoun operated as a factor which assisted the discretionary determination that a life sentence would not be imposed upon Farhad Qaumi and Mumtaz Qaumi.

Before moving to sentence Mumtaz Qaumi, his Honour made the following findings (ROS[199]):

His Honour explained that findings would be made concerning the objective seriousness of offences which carried standard non-parole periods and noted how the indicative sentences would compare with those imposed on Jamil Qaumi. His Honour said (ROS[201]):

When nominating the indicative sentence for the murder of Joseph Antoun, his Honour noted that the total sentence was three years more than the indicative starting point for NK (ROS[201]).

His Honour then proceeded to pass the sentences concerning Mumtaz Qaumi as noted earlier in this judgment.

Hamill J noted that principles of proportionality meant that Mumtaz Qaumi and Jamil Qaumi must receive a less severe sentence than Farhad Qaumi. His Honour explained this aspect, and gathered together other features, before moving to sentence Farhad Qaumi (ROS[206]-[214]) (footnotes omitted):

The sentencing Judge then made findings of objective seriousness with respect to the standard non-parole period offences (as set out earlier concerning each group of offences) noting that, because of his leadership role, Farhad Qaumi’s criminality is higher than that of his brothers in each offence with this being reflected in the individual sentences and in the aggregate sentences.

For the purpose of determining the aggregate sentence, his Honour made a finding of special circumstances concerning Farhad Qaumi (ROS[216]):

Because Farhad Qaumi (Count 18) and Mumtaz Qaumi (Counts 9 and 18) have had limited success on their conviction appeals, it will be necessary to reconsider the question of sentence in their cases without regard to the offences for which each is to be acquitted. In these circumstances, it is not strictly necessary to consider their other grounds of appeal on sentence.

However, several of the sentence grounds advanced by Farhad Qaumi and Mumtaz Qaumi should be considered in case any is upheld as such a finding would affect the task of this Court on resentencing.

Jamil Qaumi has not succeeded on any conviction ground so that his appeal will require the Court to consider his grounds of appeal on sentence.

It is common ground that Hamill J referred to either incorrect or non-existent standard non-parole periods in nominating indicative sentences with respect to Counts 18, 19, 21 and 22 on the first indictment and Count 2 on the second indictment.

The aggregate sentence for Farhad Qaumi included indicative sentences for Counts 18, 19, 21 and 22 on the first indictment and Count 2 on the second indictment. The aggregate sentence for Mumtaz Qaumi included indicative sentences for Counts 18, 21 and 22. The aggregate sentence for Jamil Qaumi involved indicative sentences for Counts 21 and 22.

This state of affairs came about as the Crown and the legal representatives for the Applicants failed to provide Hamill J with accurate information with respect to standard non-parole periods for these offences. It is unfortunate, but understandable, that the Court proceeded to refer to the agreed standard non-parole periods for the purpose of sentencing for what were (in relative terms) lesser offences in this very complex case.

The differences between the erroneous information provided to his Honour concerning standard non-parole periods and the true position was summarised in the tables contained earlier in this judgment with respect to each Applicant (at [337], [340] and [343]).

Count 18 (which concerned Farhad Qaumi and Mumtaz Qaumi) was said to have a standard non-parole period of six years when there was not, in fact, any standard non-parole period applicable to this offence at the time of the offence. It will be apparent immediately that this aspect falls away for the purpose of resentencing as each of Farhad Qaumi and Mumtaz Qaumi is to be acquitted of that offence. Nevertheless, an error occurred concerning this offence at first instance which bears upon the sentencing of each of those Applicants.

For each of Counts 19, 21, and 22 in the first indictment and Count 2 in the second indictment, being firearms offences under s.7(1) Firearms Act 1996, the standard non-parole period at the time of the offences was three years, but his Honour was misinformed and took into account a standard non-parole period of four years instead. These errors relate to offences committed by one or other of the Applicants and thus concern each of the Applicants.

It was submitted for the Applicants that his Honour took into account an erroneous standard non-parole period in nominating indicative sentences for these offences, which included a head sentence and non-parole period as required by ss.53A(2) and 54B(4) Crimes (Sentencing Procedure) Act 1999 and that, in doing so, his Honour had regard to an erroneous consideration which infected the indicative sentences for these offences and thus the aggregate sentence. Reliance was placed upon Portelli v R [2018] NSWCCA 28 at [40] in support of the argument that this constituted error which should lead the Court to resentence each Applicant in accordance with s.6(3) Criminal Appeal Act 1912 and Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

The Crown acknowledged that these errors had been made, but submitted that they did not have a material bearing upon the assessment of the aggregate sentence: Battersby v R [2018] NSWCCA 141 at [34]-[38]. The Crown relied upon AB v R [2014] NSWCCA 31 in support of the submission that the misstatement of the standard non-parole periods had no material bearing upon the assessment of the aggregate sentence so that it was not necessary for the Court to resentence the Applicants in accordance with Kentwell v The Queen.

The appeal on sentence with respect to each Applicant relates to the aggregate sentence imposed and not the indicative sentences. That said, if error is identifiable with respect to indicative sentences, such an error may be capable of affecting the aggregate sentence. Although the offences which are affected by this error were of lesser gravity than other very serious offences (in which the firearms were used) for which the Applicants were to be sentenced as part of the aggregate sentence, the firearms offences themselves were not minor.

A similar error to the present ones occurred in Sutton v R [2016] NSWCCA 249 where the sentencing Judge was misinformed by the parties as to the applicable standard non-parole period for an offence under s.7(1) Firearms Act 1996. Gleeson JA (Fagan and N Adams JJ agreeing) distinguished AB v R and found error which called for the Court to move to resentence the Applicant, although the Court concluded that no lesser sentence was warranted so that the appeal was dismissed.

This Court should find error and consider the question of resentencing as occurred in Sutton v R.

I am satisfied that error has been demonstrated in accordance with these grounds of appeal. By having regard to erroneous standard non-parole periods with respect to several offences, his Honour has had regard to an irrelevant consideration so as to constitute error in accordance with the principles in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. A standard non-parole period is a legislative guidepost which a sentencing court is required to take into account on sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

A consequence of these errors is that the Court should move to exercise its independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed: s.6(3) Criminal Appeal Act 1912; Kentwell v The Queen at [43].

A similar approach was adopted by this Court in Maxwell v R [2020] NSWCCA 94 (at [80]-[83]) where error occurred arising from use of erroneous or non-existent standard non-parole periods on sentence.

The course to be adopted by the Court was summarised in Maxwell v R where, with the concurrence of Adamson and Bellew JJ, I said at [103]-[107]:

In undertaking this task however, the Court may utilise the findings and indicative sentences nominated by Hamill J with respect to other offences unless another sentence ground is made good in that respect. This was the approach which the parties invited the Court to take if the present grounds of appeal were upheld (T21-24, 36-37, 44-45, 30 October 2019; T27-31, 36-37, 31 October 2019).

Each of these grounds of appeal should be upheld.

The errors in these grounds relate to discrete indicative sentences for certain matters only and the task for the Court is to determine whether, taking into account the correct standard non-parole period, a lesser aggregate sentence is warranted for each Applicant.

The fact that these grounds of appeal have been upheld means that Jamil Qaumi is also entitled to have the Court exercise its resentencing function under s.6(3) Criminal Appeal Act 1912. The fact that Farhad Qaumi and Mumtaz Qaumi are to be acquitted on some counts which made up their aggregate sentences means that the Court must exercise the s.6(3) function concerning each of them.

As noted earlier, although it is necessary for the Court to exercise its independent sentencing discretion with respect to each Applicant as error has now been demonstrated with respect to each of them, and as a consequence of the acquittal of Farhad Qaumi (on Count 18) and Mumtaz Qaumi (on Counts 9 and 18), it is helpful to consider the remaining grounds of appeal (apart from the claim of manifest excess) as those issues are relevant to the resentencing of the Applicants.

These grounds of appeal concern Farhad Qaumi and Mumtaz Qaumi only as they relate to the indicative sentences nominated for the Antoun murder for which each of those Applicants was found guilty.

The submissions in support of these grounds invited comparison with the sentence imposed upon the co-offender, NK, by Hamill J: R v NK (No. 3) [2015] NSWSC 1257. After a discount of 60% for assistance and his plea of guilty, NK was sentenced to an aggregate sentence of imprisonment for 21 years with a non-parole period of 15 years and nine months. It was noted that the starting point for NK in relation to the indicative sentence for the Antoun murder was 35 years and that, after a 60% reduction, the indicative sentence for that offence was 14 years’ imprisonment with a non-parole period of 10 years and six months: R v NK (No. 3) at [147].

Farhad Qaumi had an indicative sentence nominated for the Antoun murder of imprisonment for 45 years with a non-parole period of 33 years and nine months. Mumtaz Qaumi had an indicative sentence nominated for the Antoun murder of imprisonment for 38 years with a non-parole period of 26 years.

In sentencing NK, Hamill J referred (at [49]) to R v Burnes [2007] NSWSC 298 and R v May (No. 7) [2008] NSWSC 971 being other cases where a murder took place at the request of other persons to remove a competitor.

In support of these grounds of appeal, reference was made to other decisions which were said to be cases illustrating sentences imposed upon a contractor or urger to commit a murder as opposed to the sentences imposed on the actual killer. These cases were R v Ryan and Coulter [2011] NSWSC 1249, R v Brooks [2012] NSWSC 505, R v Clark [2007] NSWSC 954 and R v Clark (No. 3) [2008] NSWSC 795. Hamill J referred to a number of cases, including R v Ryan and Coulter when sentencing the Applicants (see [ROS[195] at [97] above).

It was submitted by reference to these other cases that disparity was demonstrated in the sentences imposed upon NK (the killer) and Farhad Qaumi and Mumtaz Qaumi (the urgers or organisers).

It was submitted for Farhad Qaumi and Mumtaz Qaumi that each was left with a legitimate sense of grievance arising from the differences between the sentences imposed on NK for the Antoun murder.

The Crown submitted that there were significant differences between the cases of the three men which served to explain the different indicative sentences. In particular, reference was made to Hamill J’s finding that NK was acting under a level of duress so that the objective seriousness of his offence was reduced: Giang v R [2017] NSWCCA 25. The Crown submitted that the same sentencing Judge sentenced each of the offenders by reference to findings made at different sentencing hearings and that these grounds of appeal should be rejected.

In assessing a ground of appeal asserting disparity, it is important to keep in mind that the same Judge sentenced all offenders against the background of findings of fact made in the different proceedings leading to those sentences: Tuivaga v R [2015] NSWCCA 145 at [55]-[56]. His Honour was well aware of considerations of parity when he came to sentence the present Applicants (see ROS[127]-[134] at [408] above).

It is necessary for the Court to have regard to points of similarity or difference between the offenders for the purpose of assessing the parity ground. It should be kept in mind that an objective test is to be applied with respect to the existence of a legitimate grievance arising from the imposition of different sentences. The Court is not concerned with whether the Applicants feel a sense of grievance (a subjective test), but rather whether any disparity between sentences engenders a justifiable sense of grievance and an appearance of injustice to “that impassive representative of the community, the objective bystander”: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 613 (Mason J); Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 474-475 [31] (French CJ, Crennan and Kiefel JJ).

R A Hulme J (Wilson J agreeing) said in Chamon v R [2020] NSWCCA 112 at [35]-[37]:

Hamill J sentenced each of NK, Farhad Qaumi and Mumtaz Qaumi. NK was dealt with at an earlier sentencing hearing where his Honour made findings by reference to the evidence adduced at that hearing.

In Rae v R [2011] NSWCCA 211, with the concurrence of McClellan CJ at CL and Hidden J, I said at [54]:

Different findings may be made concerning offenders at different hearings by reference to the evidence adduced at the hearing and this may serve to explain any difference in outcome: R v Chandler; Chandler v R [2012] NSWCCA 135 at [4]-[5] (Basten JA), [80]-[81] (Hoeben JA).

When sentencing NK, Hamill J said at R v NK (No. 3) at [1]-[2] (my emphasis):

Later, his Honour said at [35] (my emphasis):

Hamill J said at [43]-[45] (my emphasis):

His Honour found at [50] (my emphasis):

A vital point of distinction in the sentencing of these three offenders was the finding by the sentencing Judge that NK acted under duress when carrying out the Antoun murder. This was not simply a case of the killer (NK) committing the murder at the request of the organisers (Farhad Qaumi and Mumtaz Qaumi). This case involved the killer committing this act under duress, a conclusion which affected his moral culpability and bore upon the objective seriousness of his offence: Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 at [30]ff; Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112].

When sentencing Farhad Qaumi and Mumtaz Qaumi for the Antoun murder, his Honour said that he was unable to be satisfied beyond reasonable doubt that those Applicants had threatened NK and his daughter (see ROS[46] at [386] above). Accordingly, his Honour made different findings on that issue which flowed from the different evidence before the Court on sentence and the different standard of proof applicable concerning a mitigating factor (for NK) as opposed to an aggravating factor (for Farhad Qaumi and Mumtaz Qaumi). The objective bystander would take into account this very important difference in considering whether there was a proper objective foundation for the claim of legitimate grievance arising from NK’s lesser indicative sentence for the Antoun murder.

Further and significantly, the sentencing Judge had regard to the sentence imposed on NK for the Antoun murder as an important factor in concluding that an aggregate sentence of life imprisonment should not be imposed on Farhad Qaumi and Mumtaz Qaumi (see ROS[198] at [417] above and ROS[207] at [423] above). This is an important and unusual feature which does not assist Farhad Qaumi and Mumtaz Qaumi on their parity grounds.

It is necessary to keep in mind, as well, that with respect to each of NK, Farhad Qaumi and Mumtaz Qaumi, an aggregate sentence was imposed with the indicative sentence for the Antoun murder being one component only (albeit a large component) of that aggregate sentence. There was a significant level of notional accumulation applied which operated in favour of Farhad Qaumi and Mumtaz Qaumi, after the discretionary determination was made that a determinate sentence, and not a life sentence, should apply to each of them.

It is not contended that his Honour applied an incorrect principle or made a factual error in his consideration of this aspect. Rather, the ground asserts error in the outcome by comparison of the sentences imposed upon NK, Farhad Qaumi and Mumtaz Qaumi for the murder of Joseph Antoun.

The sentencing Judge applied the correct principles in considering issues of parity and proportionality. Further, his Honour considered several sentencing decisions for contract killings in determining the appropriate sentences to be imposed on NK, Farhad Qaumi and Mumtaz Qaumi arising out of the Antoun murder.

His Honour was well aware of the approach adopted on sentence in the particular circumstances of those cases. His Honour explained his approach on sentence for Farhad Qaumi and Mumtaz Qaumi for the murder of Joseph Antoun, being fully alive to the sentencing decision made with respect to NK for the same crime.

The sentencing Judge undertook a close examination of the points of similarity and difference for the purpose of sentence and reached a conclusion concerning sentence which had regard to considerations of parity and proportionality. It was open to the sentencing Judge to reach the conclusions which he did. Farhad Qaumi and Mumtaz Qaumi have not demonstrated an objective foundation for a legitimate sense of grievance by reference to the indicative sentence for NK concerning the murder of Joseph Antoun.

I reject these grounds of appeal.

It was submitted for Jamil Qaumi that error had been demonstrated in his Honour’s approach on sentence with respect to Count 3 in light of the verdict returned by the jury on Count 1. His Honour nominated an indicative sentence of imprisonment for 12 years and six months for the manslaughter of Mahmoud Hamzy (Count 1) and an indicative sentence of imprisonment for 10 years for conspiracy to murder Mohammed Hamzy (Count 3).

It was submitted for the Applicant that the jury’s verdict of Count 1 reflected excessive self-defence which reduced the offence from murder to manslaughter. It was submitted that the sentencing Judge should have reflected this aspect in sentencing for Count 3 although accepting that it was open to the jury to find Jamil Qaumi guilty of conspiracy to murder.

It was submitted that the sentencing Judge should have either:

It was submitted that such an approach was required in this case to avoid double punishment in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40].

The Crown submitted that the offences contained in Counts 1 and 3 involved different criminality so that the approach taken by the sentencing Judge was open in the circumstances of the case.

It was open to the sentencing Judge to nominate the indicative sentences selected for Jamil Qaumi for Counts 1 and 3. The conspiracy offence contained in Count 3 was based upon an agreement to murder Mohammed Hamzy in a type of pre-emptive strike in the belief that Mohammed Hamzy was seeking to kill Farhad Qaumi. This arose in the context of a gangland feud where resort to force on either side of the conflict involved serious outlaw activity. These aspects were relevant to the objective gravity of the offence in Count 3.

The verdict of manslaughter based upon excessive self-defence arose from the direct circumstances surrounding the killing of Mahmoud Hamzy, mistakenly taken by the killers for Mohammed Hamzy. In my view, this is not a case where it can be said that the manslaughter offence wholly or substantially reflects the criminality contained in the conspiracy offence as well so as to invoke the principles sought to be relied upon by Jamil Qaumi.

His Honour was clearly alive to factors which bore on sentence for Counts 1 and 3 (see ROS[13]-[14] at [357] above and ROS[172] at [414] above).

Further, Jamil Qaumi asked the sentencing Judge to take into account on sentence for Count 1 other serious offences included on a Form 1. His Honour explained how those matters were taken into account on sentence for Count 1 (see [389] above).

In any event, his Honour imposed an aggregate sentence which did not (of course) nominate the level of actual accumulation as between the sentences for Counts 1 and 3, which formed part only of the total criminality for which an aggregate sentence was imposed for Jamil Qaumi. It will be apparent from an examination of the indicative sentences, and the aggregate sentence passed, that there was a high level of notional accumulation which operated in favour of Jamil Qaumi. His Honour noted the overlapping aspects as between Counts 1 and 3 and sought to avoid any double counting of factors when dealing with these offences.

I reject this ground of appeal.

It was submitted for Mumtaz Qaumi that the sentencing Judge fell into error with respect to Counts 2 and 3 in finding that the objective criminality lay in the middle range of objective seriousness.

With respect to Count 3, reliance was placed upon the self-defence aspect which it was said ought bear upon the assessment of objective seriousness for the offence of conspiracy to murder. It was submitted that a finding ought to have been made that the objective criminality lay well below the mid-range of objective seriousness for offences of this type.

The Crown submitted that the assessment of objective seriousness by the sentencing Judge was open with respect to each of these counts.

A challenge to an assessment of objective seriousness of an offence is in the nature of a challenge to a discretionary finding by a sentencing Judge: Mulato v R [2006] NSWCCA 282. Such an assessment is quintessentially one for the sentencing Judge and this Court is slow to interfere with such an assessment: Mulato v R at [37], [46].

It was well open to the sentencing Judge to determine that the offence of causing grievous bodily harm to Omar Ajaj (Count 2) lay in the middle range of objective seriousness with an indicative sentence of imprisonment for eight years and a non-parole period of six years also being open in the circumstances of the case. As Hamill J recounted, Omar Ajaj had the misfortune to be present in the garage at the time of the shooting of the wrong Hamzy and he was also shot and sustained significant injuries to his abdomen and leg (ROS[8] and [12] at [356] above and ROS[104]).

With respect to conspiracy to murder Mohammed Hamzy (Count 3), it was open to the sentencing Judge to find that the offence was in the middle range of objective seriousness with an indicative sentence of imprisonment for 10 years with a non-parole period of 7.5 years.

The aspect of self-defence relied upon with respect to Count 3 did not, in the circumstances of this case, call for a finding that the offence lay other than in the middle range of objective seriousness. As noted with respect to Jamil Qaumi (at [481] above), this offence arose in the context of a gangland feud where resort to force on either side of the conflict involved serious outlaw activity.

His Honour made careful assessments of objective seriousness concerning these offences which were well open in the circumstances of the case. Error has not been demonstrated under this ground of appeal.

As the Court will proceed to resentence each Applicant as a result of the finding that error has been demonstrated in the reliance upon erroneous standard non-parole periods and the acquittal of Farhad Qaumi and Mumtaz Qaumi on certain counts, it is not necessary to address the grounds asserting that the aggregate sentences were manifestly excessive. The matters raised concerning these grounds of appeal will be taken into account in resentencing the Applicants.

In performing its function under s.6(3) Criminal Appeal Act 1912, the Court should take into account all relevant matters in exercising its independent sentencing discretion to form its own view of the appropriate sentences: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]. The Applicants did not place any additional evidence before this Court concerning events since the imposition of sentence on 16 June 2017.

Subject to what follows, apart from the particular findings challenged in specific sentence grounds of appeal which have now been determined, the Court was not asked to make any different findings concerning the objective seriousness of offences nor other aspects of the case including the Applicants’ subjective circumstances.

Counsel for the Applicants were content for the Court to proceed to resentence upon the material before the sentencing Judge and utilising the findings made by his Honour which, in many respects, operated favourably to the Applicants.

The crimes for which Farhad Qaumi was sentenced occurred between 29 October 2013 and 8 January 2014. Farhad Qaumi was 31 years old at the time of these offences.

Farhad Qaumi challenged the indicative sentence for the Antoun murder which constituted the largest indicative sentence for the purpose of fixing an aggregate sentence. It was submitted that, given the objective circumstances of that offence, the indicative sentence itself was manifestly excessive.

I do not accept this submission. The challenge to the indicative sentence for the Antoun murder was touched upon earlier (when considering the parity ground) where, reliance was placed upon other sentencing decisions for contract murders (see [472]-[473] above).

As the findings of the sentencing Judge make clear, the murder of Joseph Antoun was a crime of considerable magnitude which, of itself, attracted careful consideration by his Honour as to whether a sentence of life imprisonment was appropriate (see ROS[51] at [386] and ROS[214] at [423] above). The indicative sentence nominated for this offence was clearly open.

Farhad Qaumi stood to be sentenced as well for a series of other very serious crimes, including manslaughter and a range of other crimes of violence arising from organised criminal gang activity.

With respect to Counts 19, 21 and 22, there was a misstatement concerning the standard non-parole period. His Honour acted upon the common position of the parties that the standard non-parole periods for each of these offences was four years when the true position was that the period was three years. This was an extremely limited error for offences where the firearms in question were utilised in actual crimes of violence so that, as the sentencing Judge observed (at ROS[121] at [406] above; ROS[140] at [410] above), there was a significant element of notional concurrency to be factored into the determination of an aggregate sentence.

For Farhad Qaumi, it is appropriate to retain the findings of objective seriousness made by the sentencing Judge with respect to all offences except Count 18 where an acquittal is to be entered.

The offence in Count 18, which is to be disregarded, attracted an indicative sentence of imprisonment for six years with a non-parole period of four-and-a-half years. Although firearms were used in the commission of this offence, no injury to any person could be taken into account on sentence. I mention this because the removal of this offence for the purpose of determining an aggregate sentence has, in my view, limited impact on the ultimate sentencing outcome.

The sentencing Judge applied the totality principle in a manner which operated favourably to Farhad Qaumi. Despite the gravity and repetition of very serious crimes, he avoided imposition of a life sentence with some hope being left open for his release, albeit very many years away.

It will be apparent from an examination of the aggregate sentence and the indicative sentences that there was a substantial allowance by way of notional concurrency for the variety of very serious crimes carried out by, or on behalf of, Farhad Qaumi in pursuit of his ambition to expand his criminal network.

Farhad Qaumi used a range of persons to commit serious crimes of violence to further his own criminal ends. His adverse personal background operated as a principal factor to spare him from a sentence of life imprisonment which might otherwise have followed given the gravity and number of serious crimes carried out under his leadership (see the principles and cases referred to at [392]-[399] above).

Farhad Qaumi has a significant criminal history for offences of violence. Hamill J referred to his criminal history (ROS[81]:

In 1998, this Court allowed a Crown appeal and resentenced him for an offence of armed robbery with wounding: R v FQ (Court of Criminal Appeal, R S Hulme and Hidden JJ, Carruthers AJ, 17 June 1998, unreported). As Hamill J noted (ROS[212] at [423] above), psychiatric evidence at that time indicated that Farhad Qaumi was suffering from post-traumatic stress disorder.

Hamill J observed that a “worrying aspect of the 1998 report was that some of [Farhad Qaumi’s] personality traits” were “described as almost psychopathic in nature” (ROS[80]).

Hamill J (at ROS[82]) related this diagnosis of Farhad Qaumi to the commission of the present offences and his control of fellow gang members who committed grave crimes of violence on his behalf:

Farhad Qaumi’s pattern of serious offending, for which the present aggregate sentence was passed, confirmed the accuracy of the 1998 assessment of a psychopathic disorder, with those features manifesting themselves at a time when Farhad Qaumi was living as a mature adult in the Australian community in 2013 and 2014.

The Crown has not appealed against the determinate aggregate sentence passed at first instance.

In exercising sentencing discretion for the purpose of s.6(3) Criminal Appeal Act 1912, I am satisfied that the same indicative sentences should be nominated for all offences except Count 18 which is to be disregarded.

The aggregate sentence and the non-parole period must reflect the gravity and number of Farhad Qaumi’s offences. A limited finding of special circumstances should be made for the reasons expressed by the sentencing Judge (see ROS[216] at [425] above).

In my view, the appropriate outcome on sentence is to impose an aggregate head sentence of imprisonment for 58 years with a non-parole period of 42 years. A period of 42 years’ imprisonment represents the minimum period which Farhad Qaumi should serve for these very serious crimes.

Mumtaz Qaumi was 29 years old at the time of the present offences.

With respect to Mumtaz Qaumi, it is necessary to put to one side the indicative sentences for Counts 9 and 18. As with Farhad Qaumi, the errors with respect to standard non-parole periods of Mumtaz Qaumi were limited to erroneous application of a standard non-parole period of four years instead of three years concerning Counts 21 and 22. This was an extremely limited error which concerned firearms offences which were the subject of very substantial notional concurrency.

The remaining question is whether a lesser aggregate sentence is warranted in all the circumstances of the case. The fact that two offences (Counts 9 and 18) are to be put to one side bears materially upon that question. The overall criminality for which Mumtaz Qaumi is to be sentenced is reduced to an extent as a result of his acquittal on those matters.

At the same time, his offences include the murder of Joseph Antoun and the manslaughter of Mahmoud Hamzy as well as conspiracy to murder and other grave offences of violence. Subjective factors were taken into account in favour of Mumtaz Qaumi and played a significant role in the discretionary determination that a sentence of life imprisonment should not be imposed in his case.

Mumtaz Qaumi has a criminal history which included serious offences of violence, but with no offences being committed by him between 2006 and 2013 when the present offences were committed. Hamill J stated (ROS[92]) that his criminal history disentitled him to leniency that would be afforded to a first offender, but did not constitute an aggravating feature or engage the principles discussed in Veen v The Queen (No. 2) [1988] 164 CLR 465; [1988] HCA 14.

The Crown has not appealed against the determinate aggregate sentence passed at first instance.

In exercising sentencing discretion for the purpose of s.6(3) Criminal Appeal Act 1912, I am satisfied that the same indicative sentences should be nominated for all offences except Counts 9 and 18 which are to be disregarded.

The aggregate sentence and the non-parole period must reflect the gravity and number of Mumtaz Qaumi’s offences. A limited finding of special circumstances should be made for the reasons expressed by the sentencing Judge (see ROS[202](2)).

I am satisfied that a lesser aggregate sentence is warranted in the case of Mumtaz Qaumi. An aggregate sentence of imprisonment for 46 years with a non-parole period of 33 years is appropriate in his case. A period of 33 years represents the minimum period which Mumtaz Qaumi should serve for his grave offences.

Jamil Qaumi has not succeeded on any aspect of his conviction appeal. His appeal against sentence had succeeded only upon the basis that erroneous standard non-parole periods were taken into account on Counts 21 and 22, being reliance upon a standard non-parole period of four years instead of three years.

In my view, this is an error of a low order which affects indicative sentences for two of the less serious firearms offences where a substantial degree of notional concurrency applied on sentence. The sentencing Judge made clear that indicative sentences for these firearms offences were to operate notionally as concurrent sentences with the offences where the firearms were used (see ROS[41] at [379] and ROS[140] at [410]).

Having considered all relevant matters, including the correct standard non-parole period, I am satisfied that the indicative sentences nominated by the sentencing Judge remain appropriate for each of the offences committed by Jamil Qaumi including Counts 21 and 22, which were subject to this essentially technical error.

Having considered all relevant matters, I am not persuaded that any lesser aggregate sentence is appropriate in the case of Jamil Qaumi.

In light of the findings and conclusions expressed in this judgment, the sentence appeal of Jamil Qaumi should be dismissed. The sentence appeals of Farhad Qaumi and Mumtaz Qaumi should be allowed with lesser aggregate sentences to be passed in each case.

With respect to Farhad Qaumi’s sentence appeal, I propose the following orders:

With respect to Mumtaz Qaumi’s sentence appeal, I propose the following orders:

With respect to Jamil Qaumi’s sentence appeal, I propose the following orders: