Citation: Farhad Qaumi v R; Mumtaz Qaumi v R [2019] NSWCCA 60
Court: NSW Court of Criminal Appeal
Date: 29 March 2019
Judge(s): Bathurst CJ; Hoeben CJ at CL; Wilson J
Background
The two applicants, brothers who led the Blacktown Chapter of the Brothers for Life criminal gang, were convicted after a judge-alone trial in the Supreme Court of the murder of a man shot dead at his home in Strathfield in December 2013. The admitted shooter, a gang member referred to as Witness L, had no prior connection to the deceased and no personal motive to kill him. The central question at trial was whether the applicants had ordered or contracted Witness L to carry out the killing.
The Crown alleged the applicants had accepted a contract to kill the deceased from a third party, and then directed Witness L to carry it out. The prosecution's case combined the direct evidence of four informant witnesses (including the shooter himself) with a substantial body of circumstantial evidence, such as financial transactions, phone contact records, and tendency evidence showing the applicants had previously engaged Witness L in another shooting.
Both applicants pleaded not guilty. The trial judge, Hamill J, convicted them on 28 February 2017. Farhad Qaumi was also convicted of possessing a pistol. The applicants sought leave to appeal out of time, which the Crown did not oppose, and leave was granted.
Legal Issues
- Whether the verdicts of guilty were unreasonable or inconsistent with the evidence, under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)
- What standard of appellate review applies when a conviction follows a judge-alone trial, as distinct from a jury trial
- Whether the circumstantial and informer evidence was sufficient to support findings of guilt beyond reasonable doubt, given significant credit issues affecting the informant witnesses
Decision
The Court of Criminal Appeal applied the principles set out by the High Court in Filippou v The Queen (2015) 256 CLR 47. Under those principles, a judge's finding of guilt in a judge-alone trial is treated as equivalent to a jury verdict for appeal purposes. An appellate court will only disturb such a finding where there is no or insufficient evidence to support it, the evidence points entirely the other way, or the finding is otherwise unreasonable.
The Court noted that where an appellate court itself experiences doubt about the evidence, that doubt will usually be one the trial judge ought also to have experienced. However, if the record itself reveals discrepancies, inadequacies, or evidence lacking probative force such that there is a significant possibility an innocent person was convicted, the appellate court is bound to intervene.
Hoeben CJ at CL conducted an independent assessment of the whole of the evidence. Although the informant witnesses had significant credit issues, the trial judge had carefully analysed those issues. The Court found the trial judge's findings were well open on the evidence, particularly given the undisputed facts: Witness L had no motive, was a member of the applicants' gang, and had previously been used by them in another shooting. The circumstantial case, including financial payments and communications linking the applicants to the alleged contract, further supported the convictions.
The applicants' primary argument, that no evidence independent of Witness L and Witness M unequivocally proved they had directed the killing, was rejected. The Court held that this submission failed to engage with the findings the trial judge had properly made on the totality of the evidence. All three judges agreed the appeals should be dismissed.
Orders Made
For each applicant:
- Leave to appeal against conviction granted
- The appeal is dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that, on appeal from a judge-alone conviction, the appellate standard mirrors the standard applied to jury verdicts: the finding stands unless it is unsupported by the evidence, unreasonable, or the evidence all points the other way.
- A conviction resting substantially on informant evidence with significant credit issues is not automatically unreasonable, provided the trial judge has carefully analysed those credit issues and the findings remain open on the evidence as a whole.
- Circumstantial evidence, including tendency evidence of prior similar conduct, financial transactions, and communications, can collectively support a finding of guilt beyond reasonable doubt even where no single piece of evidence is conclusive.
- In dismissing both appeals, the Court emphasised that an appellate court conducting an independent review must assess the whole of the evidence, not merely the most contentious parts in isolation.
- Under Filippou, s 133 of the Criminal Procedure Act 1986 (NSW) equates a judge's finding of guilt to a jury verdict "for all purposes," meaning the same appellate threshold applies regardless of the mode of trial.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 133
- Firearms Act 1996 (NSW), s 7(1)
Cases:
- Filippou v The Queen [2015] HCA 29; 256 CLR 47
- R v Qaumi & Qaumi (No 12) [2017] NSWSC 134