Crowe v DPP (NSW)

HIS HONOUR:

In the course of committal proceedings on 10 March 2015, the plaintiff made an application to cross examine a number of prosecution witnesses under s 91 of the Criminal Procedure Act 1986 (the s 91 application).

On 16 March 2015 his Honour Still LCM refused the plaintiff’s application and delivered his reasons. The committal proceedings were adjourned to 15 April 2015. On 15 April 2015 his Honour committed the plaintiff for trial in the Supreme Court.

By a Further Amended Summons filed 26 May 2015, the plaintiff seeks judicial review under s 69 of the Supreme Court Act 1970 in relation to the refusal of the s 91 application. The plaintiff seeks to quash the order of the learned magistrate, together with a further order remitting the committal to his Honour to be dealt with according to law.

This judgment relates to that Further Amended Summons.

In order to understand the application, it is necessary to provide the context within which the Crown alleges that the plaintiff’s offending occurred. The following is taken from the Crown Case Statement. It is not a statement of fact per se, but sets out the allegations of fact upon which the Crown relies.

The Brothers for Life (BFL) gang was started in gaol by Bassam Hamzy and his cousins, including Ghassan Hamzy and Mohammed ‘Hamoudie’ Hamzy. The BFL became a well known criminal group mostly comprising Islamic males of Afghani and Middle Eastern background.

In 2013 the BFL had two main factions, Bankstown and Blacktown. At that time, Mohammed ‘Hamoudie’ Hamzy ran the Bankstown faction and one of the co-accused, Farhad Qaumi had the leadership of the Blacktown faction.

When Farhad Qaumi took over the leadership of the Blacktown faction, he was able to control and direct its criminal activities. He did so with the assistance of his two brothers, Mumtaz and Jamil. During his time in charge, the criminal activities of the BFL Blacktown faction comprised shootings at individuals, home invasions, other firearm offences, the supply of prohibited drugs and a “contract murder”.

By late 2013, in addition to this offending, the BFL Bankstown and Blacktown factions became involved in a conflict as a result of Farhad Qaumi attempting to exert stronger influence over the entire BFL.

A close confidant of Farhad Qaumi during this period was the plaintiff, who also had strong affiliations with members of the Bankstown BFL faction. It is the Crown case that during this struggle between the two factions, Farhad Qaumi and/or his brothers Jamil and Mumtaz, along with the plaintiff were involved in, and directed, other members of BFL Blacktown to commit multiple shootings, including a second murder, in a bid to overpower the Bankstown faction, whose members were primarily of Lebanese background.

A large part of the Crown case against the plaintiff depends upon witnesses “A”, “B”, “C”, “D”, “E”, “G”, “I”, “J”, “K” and “L”, who were also members/associates of the Blacktown BFL. Those persons are expected to give evidence about their knowledge of the background and the “general” nature of the activities of BFL Blacktown in the time they were involved such as conducting “drug rips”. In addition, they are expected to give first hand evidence of “specific” criminal offending that they played a role in, along with the relevant co-accused including the plaintiff, as reflected in the counts on the indictment.

It is the Crown case that on 28 October 2013 the plaintiff approached Farhad Qaumi and told him that Mohammed ‘Hamoudie’ Hamzy was trying to have him killed. After making some inquiries, Farhad Qaumi told a group of the BFL Blacktown faction, which included witness L, Jamil Qaumi and Mohammed Zarshoy that Mohammed ‘Hamoudie’ Hamzy had to be killed. It was decided that the plaintiff would drive those three persons to Mohammed “Hamoudie” Hamzy’s residence because she had been to the house previously and knew the area well. The plaintiff is said to have advised the group that they would have to wait until later in the evening as Mohammed Hamzy had bail conditions requiring him to be home before 11pm. She also advised that Mohammed Hamzy and his associates always sat in the garage of his home to socialise after the curfew came into effect.

At 11.30pm on 28 October 2013 Mahmoud Hamzy and Omar Ajaj had visited their cousin Mohammed ‘Hamoudie’ Hamzy at his residence. They were socialising inside the garage with some other persons including Mehmet Yarar. The plaintiff is said to have driven the vehicle close to the residence. Jamil Qaumi, Zarshoy and witness L alighted from the vehicle and walked towards the residence. When they reached the front of the residence, they ran into the garage and began firing their firearms. As they did this, Mohammed ‘Hamoudie’ Hamzy and Mehmet Yarar ran for a door leading into the house and escaped unscathed. Both Mahmoud Hamzy and Omar Ajaj fell to the ground after being wounded by bullets. Jamil Qaumi is said to have approached Mahmoud Hamzy and fired at least one bullet into his head from close range.

Jamil Qaumi, witness “L” and Zarshoy then ran back to the vehicle driven by the plaintiff, which was waiting at the front of the house. The plaintiff sped off in the vehicle and while she did so, Zarshoy fired at least one further shot in the direction of the residence. As they were driving away, the group removed their gloves and balaclavas and placed them into a plastic bag which was handed to witness “L”. They wiped their fingerprints off the firearms and placed them in another bag which was given to the plaintiff.

It was against that background that senior counsel for the plaintiff made the following submissions to his Honour in the course of the committal:

His Honour delivered judgment in the following terms:

On 15 May 2015 the Director of Public Prosecutions (DPP) found a bill and an Indictment was filed against the plaintiff and the other co-accused involved in the murder. Although this has not yet happened, the plaintiff will be arraigned in due course with other co-accused named in the indictment in the Supreme Court.

The plaintiff submitted that despite the finding of a bill against her by the DPP, the interests of justice required that the committal proceedings be re-opened and that important witnesses upon whom the Crown case depended be available for cross-examination. This was particularly so when these witnesses were persons who had been directly involved in the criminality and who were receiving benefits for providing such testimony. The plaintiff submitted that the rationale behind a committal hearing remained valid. In that regard, she relied upon the observations of Dawson J in Grassby v R [1989] HCA 45; 168 CLR 1 at [19]:

The plaintiff accepted that the introduction of the “paper” committal was capable of reducing the capacity for the committal to perform its traditional filtering function. Nevertheless, she submitted that s 91 of the Criminal Procedure Act with its requirement that a witness should attend to give oral evidence if there were substantial reasons why that should occur in the interests of justice, preserved an important element of the filtering process referred to by Dawson J. This was particularly so where the witness sought to be cross-examined was of critical importance to the prosecution case and where the reliability of that evidence was or might be effectively tested and possibly undermined by cross-examination at an early stage. The plaintiff submitted that in the case against her, the Crown was reliant upon the evidence of five witnesses. Those witnesses were criminally concerned with the matters charged. She submitted that oral examination of these witnesses would not only disclose the details of the Crown case against her and the nature of the supporting evidence but would also enable a testing of those witnesses’ credibility and reliability.

The plaintiff submitted that the “filtering” features of the committal procedure were neither nullified nor reduced by the residual capacity of the Director of Public Prosecutions to file an ex officio indictment. There remained a general right of an accused person to face a committal hearing before any trial on indictment, irrespective of whether an ultimate trial followed a decision by the magistrate to commit or whether a trial followed the Director’s decision to file an ex officio indictment. She submitted that the Director’s capacity to file an ex officio indictment reflected the executive (i.e. non-judicial) nature of the decision to prosecute. It also recognised the potential imperfections in the ordinary course of committal proceedings and deprived the Local Court of what would otherwise amount to a total control over the executive decision to prosecute. The plaintiff submitted that notwithstanding that circumstance, it would be erroneous to conclude that a committal procedure was a secondary or non-essential feature of the justice system, e.g. its operation as a filter against unsuitable prosecutions as referred to by Dawson J in Grassby.

The plaintiff submitted that the laying of an indictment against her by the Director did not “overtake” the committal proceedings. While accepting that the laying of the indictment was not merely confirmatory of any decision made by a magistrate at committal, the plaintiff submitted that the Supreme Court retained jurisdiction to remit the matter to the Local Court. If the Supreme Court did so it would, in effect, invite the Director to reconsider his own executive decision to indict.

The plaintiff submitted that there remained real utility in the orders sought in the Further Amended Summons in that remitting the matter to the Local Court would serve to re-establish the real possibility that she would be discharged at that stage of the process. This was because a magistrate’s decision at the conclusion of a committal proceeding had “considerable force” despite the fact that it did not bind the prosecuting authorities. The plaintiff submitted that to effectively set to one side the prospect of holding committal proceedings on the basis that a bill had already been found, would be to deprive the plaintiff of the real possibility of an early discharge. The plaintiff submitted that this was the reason why the potential availability of a Basha inquiry before trial would not be a sufficient substitute for a committal proceeding heard in accordance with the s 91 application.

In circumstances where an indictment has been found, the statement of principle in Sergi v Director of Public Prosecutions (Court of Appeal, unreported, 10 September 1991) (Kirby P, Meagher and Handley JJA) remains applicable.

The decision of the Court of Appeal in V v McDonald and Ors [1995] NSWCA 487 (Mahoney, Handley and Powell JJA) is important because it integrates the effect of current legislation with a statement of principle to the same effect as that in Sergi.

The approach in V v McDonald & Ors was endorsed by the Court of Appeal in Bagshaw v Carter & Ors [2006] NSWCA 113 at [16] – [17] (Ipp JA, with whom Giles and McColl JJA) agreed.

A further analysis of the relevant principles was undertaken in Director of Public Prosecutions v PM [2006] NSWCCA 297; 67 NSWLR 46. The background to this matter was that the Director of Public Prosecutions appealed pursuant to s 5F of the Criminal Appeal Act 1912 against an order by the District Court “remitting an indictment containing one count of aggravated sexual assault (s 61J(2)(d) of the Crimes Act 1900) to the Children’s Court”. The Notice of Appeal sought an order vacating the order made by the District Court. The appeal by the DPP succeeded. In the course of reaching that conclusion, Latham J (with whom Whealy J agreed) said:

I am not persuaded that any miscarriage of justice will occur if the committal proceedings are not re-opened and the plaintiff is not allowed to cross-examine the witnesses whom she nominated in the committal proceedings. I have reached that conclusion on a number of bases.

Because a bill has been found, there is no practical utility in remitting the matter to the Local Court when it is now in the Supreme Court. There was little specificity in the identification of the issues in relation to which the witnesses were to be cross-examined. It is not sufficient that the nominated witnesses were involved in the criminality. Section 91 still requires “substantial reasons” for why the witnesses should be required to attend and be cross-examined. As the learned magistrate found, the proposed cross-examination was of a wide ranging and very general kind with almost no parameters or boundaries.

As the authorities make clear, the fact that a bill of indictment has been found in the Supreme Court weighs heavily in favour of a refusal of any relief in this case. The learned magistrate’s decision to commit the plaintiff for trial has been overtaken by the decision to find a bill. The consequences of that decision were succinctly set out in Sergi and subsequent cases.

It is also not without significance that there are available in the Supreme Court pre-trial procedures, which enable significant aspects of the prosecution case to be identified and refined. As is clear from the submissions before his Honour and from the Crown case statement, the plaintiff has already been provided with most, if not all, of the statements taken from Crown witnesses, both induced and otherwise. This would seem to be the very sort of case where there are good prospects of a Basha inquiry being conducted if and when the plaintiff makes such an application.

As was pointed out in Sergi, there are powerful policy considerations to the effect that circumspection should be exercised in providing relief which would have the effect of disturbing a criminal trial and which might involve “fragmentation in the criminal process”. In any event, as all the authorities make clear even if the committal were to be re-opened and if his Honour were to find that there was no evidence to warrant committing the plaintiff for trial, this would have no effect on the bill of indictment which has been found.

I have concluded that in the exercise of the Court’s discretion, the orders sought in the Further Amended Summons should not be made.

In view of that conclusion, it is not necessary to consider the issues raised by s 91 of the Criminal Procedure Act 1986. Were that necessary, however, by reference to the decisions in Hanna v Kearney (Studdert J, 28 May 1998, unreported) and Director of Public Prosecutions v Losurdo & Anor (1998) 44 NSWLR 618 (Priestley and Handley JJA, Sheppard AJA) I would not have been satisfied that the pre-conditions set out in s 91 had been satisfied so as to require the attendance of the witnesses required by the plaintiff for cross-examination. I am not persuaded that the reasons put forward on behalf of the plaintiff amount to “substantial reasons” as contemplated by those decisions and that on this issue, his Honour’s conclusion was correct.

The Summons should be dismissed with costs.