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Supreme Court 28 February 2017

R v Qaumi & Qaumi (No 12)

[2017] NSWSC 134

HomicideFirearms & weaponsPublic order & justice offences
CRIMINAL LAW TRIAL BY JUDGE ALONE MURDER CONTRACT KILLING BROTHERS FOR LIFE INFORMANT WITNESSES

Citation: R v Qaumi & Qaumi (No 12) [2017] NSWSC 134
Court: Supreme Court of New South Wales
Date: 28 February 2017
Judge: Hamill J

Background

On 16 December 2013, Joseph Antoun was shot four times at the front door of his Strathfield home and died almost immediately. The shooter, identified in the judgment as Witness L, admitted his involvement and was sentenced for murder. The accused, two brothers referred to throughout as Farhad and Mumtaz Qaumi, were alleged to be the leaders of the Blacktown Chapter of the Brothers for Life (BFL Blacktown), a criminal group whose members included Witness L, the driver (Witness C), and others connected to the killing.

The Crown alleged that the accused had accepted a contract to kill Mr Antoun from a man named Elias "Les" Elias, and had directed Witness L to carry out the shooting. The accused pleaded not guilty. The defence pointed to a number of alternative suspects, notably one Pasquale Barbaro (who was himself murdered during the trial), who had animosity toward the deceased and extensive contact with a key Crown witness at relevant times.

The trial proceeded before a judge alone, following an order under section 132 of the Criminal Procedure Act 1986 (NSW). Hamill J was required by section 133 to set out the legal principles applied and the factual findings made, applying the same warnings that would have been given to a jury.

  • Whether the Crown established beyond reasonable doubt that the accused ordered or contracted Witness L to murder Mr Antoun, through either accessorial liability or joint criminal enterprise
  • Whether Farhad Qaumi possessed the murder weapon (a .38 calibre snub-nose revolver) contrary to the Firearms Act 1996 (NSW)
  • Whether evidence of movement of the murder weapon after the killing was admissible against both accused, and on what basis
  • How to assess the evidence of multiple informant witnesses, each with significant credibility problems, and whether their accounts were sufficiently supported by independent evidence
  • Whether hearsay evidence, including evidence favourable to the accused, required an unreliability warning and what weight it should attract
  • How to treat the circumstantial case, including surveillance evidence and telephone intercepts, in light of gaps in observation and alternative innocent explanations

Decision

Hamill J convicted Farhad Qaumi of murder and of possessing the murder weapon. Mumtaz Qaumi was also convicted of murder. The court was satisfied beyond reasonable doubt that the accused, as leaders of BFL Blacktown, ordered Witness L to carry out the killing after accepting a contract from Les Elias.

The court approached the informant evidence with considerable caution. Witnesses L, C, K, and M each had serious credibility problems, including prior criminal histories, personal motives, and the benefits they received in exchange for cooperation. Hamill J acknowledged the danger of convicting on the uncorroborated evidence of individual informants and required that their accounts be supported by independent evidence before that evidence could be relied upon.

On the circumstantial case, the court drew on surveillance records, telephone intercepts, and financial evidence. These included evidence that Farhad Qaumi met with Witness L and Witness C approximately two hours before the shooting, that a reconnoitre of the victim's home was conducted five days earlier, and that a large sum of money was paid into Mumtaz Qaumi's bank account in a manner consistent with receipt of a contract payment. The court found that the combination of direct and circumstantial evidence excluded, beyond reasonable doubt, the alternative hypotheses advanced by the defence, including the Barbaro hypothesis.

On the weapons charge, the court found that evidence of the murder weapon's movement after the killing was admissible against both accused through the co-conspirators rule, on the basis that it was done in furtherance of the joint criminal enterprise. However, the court also found that this evidence could not be used to establish consciousness of guilt, confining its relevance to proof of a connection with the murder weapon.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In a judge-alone murder trial, the court must explicitly state the legal principles applied and the factual findings made, performing the same analytical function as a jury direction, including all statutory warnings about potentially unreliable evidence.

  • Where a Crown case depends substantially on informant witnesses, a conviction is unsafe unless the substance of their evidence is supported by independent evidence such as surveillance records, telephone intercepts, or financial transactions. The court here treated corroboration of each significant plank of the informants' accounts as a necessary step in the reasoning process.

  • Under the co-conspirators rule (drawing on Ahern v The Queen (1988) 165 CLR 87), evidence of acts done by one party to a joint criminal enterprise in furtherance of that enterprise is admissible against all parties, but the admissibility is limited to establishing connection with the enterprise and does not extend to proving consciousness of guilt.

  • An unreliability warning under the Evidence Act 1995 (NSW) applies to hearsay evidence that may be unreliable, including where that evidence is favourable to the accused. Hamill J noted that where the evidence assists the accused, the warning must be tempered accordingly, so as not to unfairly diminish evidence that may raise a reasonable doubt.

  • The Crown bears the onus of excluding beyond reasonable doubt every reasonable alternative hypothesis, not merely the guilt hypothesis itself. The existence of other persons with motive and opportunity does not automatically generate a reasonable doubt, but the Crown must affirmatively exclude such hypotheses on the totality of the evidence.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Evidence Act 1995 (NSW)
- Firearms Act 1996 (NSW)

Cases
- Ahern v The Queen (1988) 165 CLR 87
- De Gruchy v The Queen (2002) 211 CLR 85
- Dyers v The Queen (2002) 210 CLR 285
- Elomar & Ors v R [2014] NSWCCA 303
- Fox v Percy (2003) 214 CLR 118
- KRM v R (2001) 206 CLR 221
- Likiardopoulos v The Queen (2013) 247 CLR 265
- McAuliffe v The Queen (1995) 183 CLR 108
- Miller v The Queen; Smith v The Queen; Presley v DPP (SA) [2016] HCA 30
- R v AC (No 7) [2016] NSWSC 404
- R v Eccles & Merritt [1881] III VLR 36
- R v Markuleski (2001) 52 NSWLR 82
- R v NK (No 3) [2015] NSWSC 1257
- R v Qaumi & Qaumi (No 11) [2017] NSWSC 95
- R v Rose (2002) 55 NSWLR 701
- R v Su [1995] 129 FLR 120
- R v Wilson (2005) 62 NSWLR 346
- RELC v The Queen (2006) 167 A Crim R 484
- Shepherd v The Queen (1990) 170 CLR 573