R v Qaumi & Ors (No 31)

On 23 May 2016, I made a number of orders following a variety of objections taken by a witness in the present proceedings. Those orders were based on the privilege against self-incrimination and s 128 of the Evidence Act 1995 (NSW). There were ancillary orders, controlling publication of the evidence given, based on the inherent jurisdiction of the Court and the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Court Suppression Act”). These are my reasons for those orders. I have also reformulated the non-publication orders to ensure that they comply with the provisions of the Court Suppression Act.

Section 128 of the Evidence Act provides protection for witnesses who may be asked questions, the answers to which may tend to incriminate them. In that respect it is a statutory reflection of a common law protection of long standing. However, the section makes significant modification to the common law by providing that a Judge may direct a witness to answer in spite of a valid objection and, if the witness is compelled to answer, the Judge may provide the witness with a certificate that the evidence cannot be used against them. The relevant provisions of the section are these:

Between them, the five accused are charged with a total of 24 offences. The details of those offences have been set out in earlier judgments. Most relevantly, four of the accused are charged with the murder of Mahmoud Hamzy (count 1) and the infliction of grievous bodily harm on Omar Ajaj with intent (count 2). Three of the accused are charged with conspiracy to murder Mohammed Hamzy (count 3). Counts 1 and 2 arose during a single incident at Revesby Heights on 29 October 2013 and this was the culmination of the conspiracy charged in count 3 alleged to have arisen between 1 and 30 October 2013.

The present issue arose when the Crown called Mohammed Hamzy to give evidence on the thirty first day of the trial. Mr Hamzy was the target of the conspiracy to murder charged in count 3. His cousins were the victims of counts 1 and 2, each of which occurred when a number of men entered the garage of Mr Hamzy’s premises and opened fire with a number of weapons. It appears, or may be, that Mahmoud Hamzy was shot as a result of mistaken identity – that is, the killers thought that he was Mr Hamzy. Mr Hamzy was present when the men entered the garage. He is, potentially at least, an important Crown witness.

It is the prosecution case that the shooting was part of what has been described as “turf war” between two rival criminal gangs or, perhaps more accurately, two chapters of a criminal group called the Brothers for Life (BFL). There is some evidence that Mr Hamzy was the leader of the BFL Bankstown. There is also some evidence that Mr Hamzy made threats to kill Farhad Qaumi, the leader of the BFL Blacktown. It is the defence case that Mr Hamzy took out a contract on Farhad Qaumi’s life. It is expected that evidence from a witness sometimes referred to as Witness M will suggest that the immediate plan to murder Mr Hamzy arose after she told Farhad Qaumi and others of Mr Hamzy’s intention to “get” Farhad Qaumi. In opening the case to the jury, counsel for Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi each raised the issue of self-defence based around the threat represented by Mr Hamzy.

Mr Hamzy was represented by Mr Johnson SC and Ms Lewer. Before his client was called, Senior Counsel informed me that Mr Hamzy would object to answering certain questions on the basis that the answers may tend to incriminate him. This occurred in the absence of the jury and the witness and on the basis of what I was told by Senior Counsel I was satisfied pursuant s 132 of the Evidence Act that Mr Hamzy was aware of his right to raise an objection.

Counsel for Jamil Qaumi had advised the lawyers for the witness of three areas of cross-examination that may give rise to an objection under s 128 of the Evidence Act. I am grateful to Ms Carroll for doing so as it streamlined the argument to a significant extent. In the course of argument a fourth area emerged. The four areas of cross-examination were as follows:

Mr Hamzy’s situation is complicated by the fact that he is due to stand trial for murder and other charges in around a month. In support of the objection, and the arguments under s 128(4) that followed, Mr Johnson provided me with a chronology, an indictment for Mr Hamzy’s pending trial, the Crown case statement in relation to that trial, a witness list and a statement of one of the investigating police officers. [1]

Having considered the areas of cross-examination foreshadowed in the light of the background to the case and the contents of MFI 87, I found pursuant to s 128(2) of the Evidence Act that Mr Hamzy had reasonable grounds to object to answering questions under those broad categories on the ground that his answers may tend to incriminate him. The question then became whether it was in the interests of justice that he be directed to answer the questions over that objection and whether, if he was so directed, he should receive a certificate under s 128 of the Evidence Act that any answer he gave under compulsion could not be used against him, other than in proceedings relating to the falsity of the evidence he gave.

In relation to the allegations that give rise to Mr Hamzy’s forthcoming murder trial, Mr Johnston submitted that his client ought not to be required to answer the questions. In the course of argument, it was accepted by Senior Counsel that there could be no objection if the questions were couched in such a way that it was made clear that the inquiry was whether that there existed an allegation, rather than questions requiring the witness to respond to that allegation or to disclose his defence to that allegation.

The material in MFI 87 shows that it is alleged that on 14 October 2012 Mr Hamzy murdered a man called Yeyha Amood and attempted to murder Bassam Hijazi while each was seated in a car parked in Greenacre. There is direct evidence from an informer and a circumstantial case that Mr Hamzy was the shooter. It is further alleged that on 8 October 2012, Mr Hamzy shot Alex Ali with intent cause grievous bodily harm. There is evidence that Mr Hamzy admitted to being the shooter. It is alleged that Mr Hamzy and all three victims were members of the Brothers for Life and that the shootings arose as a result of disputes between the criminal gangs.

It is not disputed that these allegations are relevant to the issues before the jury in the present trial. In particular, an assessment of the present accused’s claim of self-defence (which the prosecution must disprove beyond reasonable doubt) may be affected by the allegations of these earlier shootings. If the accused knew about those shootings – or the allegations surrounding those shootings – the jury might more readily accept (or not reject) an assertion that each believed it was necessary to act in self-defence. It is accordingly in the interests of justice that the accused be permitted to cross-examine Mr Hamzy about these matters.

On the other hand, it is established that compelling an accused person to answer questions about criminal offences with which they stand charged has a capacity to “alter” “radically” the “accusatorial process” upon which our criminal justice system is built: see, for example, X7 v The Australian Crime Commission [2013] HCA 29; 248 CLR 92 at [71] (Hayne and Bell JJ); Lee v The Queen; Lee v The Queen [2014] HCA 20; 88 ALJR 656 at [43]-[46]. The seriousness of the outstanding allegations against Mr Hamzy is a strong factor militating against a finding that it is in the interests of justice to compel Mr Hamzy to give evidence about the events giving rise to the charges.

It will be seen that an assessment of the interests of justice for the purpose of s 128(4) of the Evidence Act involves balancing the right of the present accused to a fair trial against the right of the witness to a fair trial. However, there is a practical solution to this balancing exercise which satisfies the interest of both the witness and the accused in the current trial. Whether the allegations against Mr Hamzy are true or established is not critical to the issue of whether the accused believed on reasonable grounds it was necessary to do what they did to defend themselves against the threat posed by Mr Hamzy. What is critical to that issue is whether they believed that the allegations were true. Accordingly, provided the accused were permitted to establish the existence of the allegations (rather than attempting to establish the truth of, or Mr Hamzy’s response to, those allegations) the evidence upon which their self-defence case rested would be before the jury. Accordingly, I held (ultimately, with the concurrence of all interested party) that Mr Hamzy could be asked questions couched in those terms. It might be thought to be doubtful that such questioning could give rise to reasonable grounds for an objection on the basis of self-incrimination. However, the raising of the allegations in cross-examination in the tense atmosphere of the present trial could potentially elicit a response that could be used against him. Accordingly, I found that there were reasonable grounds for the objection. Assuming the questions did not call for Mr Hamzy to disclose his defence or answer the allegations, I decided to direct him to answer those questions if he raised an objection and that a certificate would be granted to protect him against self-incrimination.

In respect of area 2, I accepted that there were reasonable grounds for an objection on the basis that answering such a question may tend to incriminate the witness in respect of (at least) a charge under s 93T of the Crimes Act 1900 (NSW) (participation in a criminal group). However, he is not presently charged with such an offence and his involvement in the Brothers for Life is an important issue in the present trial. Accordingly, I determined that it was in the interests of justice that he be required to answer the questions and that he would have a certificate under s 128.

In respect of area 3, the capacity for the questioning to lead to answers that may tend to incriminate the witness is less certain. However, from what I know of the activities of [Witness M] from her sentencing hearing and from evidence earlier given in the trial, I found that there were reasonable grounds for an objection. There is evidence that Witness M passed messages between various people allegedly (or certainly) involved in criminal activities including the possession of firearms and criminal agreements concerning the division of area of Sydney for the purpose of drug supply. I decided it was in the interests of justice that the witness be required to answer questions over his objection because it is part of both the prosecution and the defence case that Witness M provided the current accused with information to facilitate some of the shootings and communicated a threat to Farhad Qaumi emanating from Mr Hamzy.

Area 4 involves the direct suggestion that Mr Hamzy participated in a conspiracy or incitement to murder. There is no doubt that there are reasonable grounds for his objection. However, it was clearly in the interests of justice that such cross-examination be permitted because of its relevance to the issue of self-defence. Accordingly, Mr Hamzy was directed to answer the questions and provided with a certificate under s 128 of the Evidence Act.

Accordingly, having determined that there were reasonable grounds for the objections, I announced the following findings and orders:

I indicated that nothing in those orders precluded counsel for any of the accused venturing beyond the areas that had been identified in advance. Nor did the orders preclude Senior Counsel for Mr Hamzy rising in the course of the evidence to raise any further objection, either in respect of those areas or any other areas that may have arisen.

Immediately after those orders were announced, and before Mr Hamzy was sworn, I was advised that the Crown Prosecutor sought to play a number of telephone intercepts to the witness. These involved conversations with Farhad Qaumi and related to the two men interceding in a dispute over a debt that a member of the Brothers for Life was attempting to enforce. Apart from the distinct possibility that the method of chasing the money was (to put it neutrally) unorthodox and illegal, I also accepted Senior Counsel’s submission that answering the questions may also have involved making admissions concerning the use of a particular telephone service that may have relevance in the murder proceedings. Accordingly, I found that there were reasonable grounds for an objection based on self-incrimination. The parties in the trial assured me that the extent of the examination would be limited and I determined that it was in the interests of justice to require Mr Hamzy to answer the questions and to provide him with a certificate under s 128 of the Evidence Act.