Farhad Qaumi v The Queen; Mumtaz Qaumi v The Queen - [2019] NSWCCA 60

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Farhad Qaumi v R; Mumtaz Qaumi v R [2019] NSWCCA 60
Hearing dates: 4 March 2019
Decision date: 29 March 2019
Before: Bathurst CJ at [1];
Hoeben CJ at CL at [2];
Wilson J at [229]
Decision:
In each appeal:
(1) Leave to appeal against conviction granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – appeal against conviction – judge alone trial – murder – whether verdicts of guilty were unreasonable and inconsistent with the evidence – shooting murder – shooter known – whether applicants gave instructions for killing – circumstantial case – much of Crown evidence dependent on informer evidence – significant credit issues affecting informer evidence – careful analysis of evidence by trial judge – appeals dismissed.
Legislation Cited: Criminal Appeal Act 1912 (NSW) – s 5(1)(b)
Firearms Act 1996 (NSW) – s 7(1)
Cases Cited: Filippou v The Queen [2015] HCA 29; 256 CLR 47
R v Qaumi & Qaumi (No 12) [2017] NSWSC 134
Category: Principal judgment
Parties: Farhad Qaumi – Applicant
Mumtaz Qaumi – Applicant
Regina – Respondent Crown
Representation: Counsel:
J Stratton SC/M Curry – App Farhad Qaumi
Dr GD Woods QC/N Carroll – App Mumtaz Qaumi
E Balodis – Respondent Crown
Solicitors:
Matouk Joyner Lawyers – Applicant Farhad Qaumi
George Sten & Co – Applicant Mumtaz Qaumi
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2014/6809; 2014/315201; 2014/315251
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), until further order of the Court, there is to be no disclosure or publication in connexion with these proceedings of the names of witnesses A, C, E, J, K, L, M or any information likely to lead to the identification of those witnesses.
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

R v Qaumi & Qaumi (No 12) [2017] NSWSC 134

Date of Decision:

28 February 2017

Before:

Hamill J

File Number(s):

Farhad Qaumi – 2014/6809; 2014/315201
Mumtaz Qaumi – 2014/315251

JUDGMENT

BATHURST CJ: I have had the advantage of reading the judgment of Hoeben CJ at CL in draft. I agree with the orders proposed by his Honour and with his Honour’s reasons.
HOEBEN CJ at CL: The applicants, Farhad and Mumtaz Qaumi, seek leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal their convictions on 28 February 2017 on one count of murder, after a trial before Hamill J sitting alone and without a jury in the Supreme Court at Sydney. Farhad Qaumi also seeks leave to appeal his conviction on one count of possessing a pistol, contrary to s 7(1) of the Firearms Act 1996 (NSW).
Although the applications were considerably out of time, the Crown did not oppose leave being given for the appeals to proceed. In those circumstances, leave to appeal out of time was granted by the Court.
The applicants relied upon a single ground of appeal:

The verdicts of guilty were unreasonable and inconsistent with the evidence.

No challenge was made to the directions of law, nor to the admission of evidence and evidentiary rulings made by the trial judge.

Principles applicable to an appeal in a judge alone trial

It was common ground that the relevant principles were set out by the plurality (French CJ, Bell, Keane and Nettle JJ) in Filippou v The Queen [2015] HCA 29; 256 CLR 47 where their Honours said:

“The nature of a criminal appeal from a judge alone
6 Section 133 of the Criminal Procedure Act 1986 (NSW) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt of the accused and that such a finding has the same effect as a verdict of a jury. In that sense, “finding” means an ultimate finding of guilt as opposed to a finding of fact leading to the finding of guilt. The section also provides that the judge must include in his or her reasons for judgment the principles of law applied and the findings of fact on which the judge relies; and that, if any Act or law requires a warning to be given to a jury in such a case, the judge is to take the warning into account in dealing with the matter.
…
9 As was also explained in Fleming, perforce of s 133 of the Criminal Procedure Act, each of the three limbs of s 6(1) of the Criminal Appeal Act is capable of application to the verdict of a judge alone. For the purposes of the first limb, the question is whether, upon the evidence on which the judge acted, or upon which it was open to the judge to act, the judge’s finding of guilt is “unreasonable” or “cannot be supported”. …
…
11 Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of the Criminal Procedure Act that the effect of the latter provision is to equate a judge’s finding of guilt to a jury's finding of guilt “for all purposes”. It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge’s finding of guilt is to be treated as if it were the same as a jury’s finding of guilt.
12 Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen:
“It is only where a [judge’s] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

…
56 Starting with the first of the judge’s supposed errors, the question for the Court of Criminal Appeal was not whether it was “satisfied that the judge’s account was correct” but whether her Honour's findings as to the sequence of events were not reasonably open. And, plainly, they were open. Contrary to the Court of Criminal Appeal’s reasoning, the judge’s analysis of the pertinent evidence did not overlook that Allen did not look out of his window until after the first two shots had been fired. Allen’s observation of the appellant going into the house after the third shot had been fired (which, on Mrs Filippou’s version of events, would have been the second occasion that the appellant went back into the house) was of the appellant walking calmly inside, then coming out again, and then crouching over the deceased and using his arms in a pulling motion. As the judge rightly observed, that version of events was starkly inconsistent with Mrs Filippou’s recollection that the appellant had run or walked back in quickly on the second occasion in an agitated state of mind and then driven away in his utility. Thus, for the reasons which her Honour gave, she was entitled to prefer Allen’s version of events over Mrs Filippou’s variously stated recollections.” (Footnotes omitted.)

Factual background

The applicants were the leaders of a criminal gang, being the Blacktown Chapter of the Brothers for Life (BFL Blacktown) of which Witness L, Witness C, Witness J and Witness K were members.
On 16 December 2013, Joseph Antoun (the deceased) was murdered at his home in Strathfield when he opened the front door and was shot four times in the upper body. He died almost immediately. There is no doubt that the assassin was Witness L. He admitted his involvement and has been sentenced for murder. There is also no doubt that Witness C drove Witness L to and from the crime scene, although Witness C claimed (and the prosecution accepted) that he did not know Witness L’s purpose. He said that he believed that Witness L was simply going to drop off a package. Witness L did not know the deceased and there is no evidence that he had any reason to kill him. The question at the heart of the trial was who gave the order or contracted Witness L to murder the deceased. The Crown alleged that the order came from the applicants after they accepted a contract to kill the deceased from a man called Elias “Les” Elias (Elias). On arraignment, each of the applicants pleaded not guilty. It was for the Crown to establish their guilt beyond reasonable doubt.
The Crown relied upon the direct evidence of three informant witnesses who were involved in the killing and its aftermath. These witnesses were Witness L, Witness C and Witness K, who was found in possession of a 0.38 calibre Smith & Wesson snub nosed revolver identified by ballistics evidence as the weapon used to shoot the deceased. The Crown also called evidence from Witness M, who claimed that she was involved in the preparation for the shooting and that the applicants told her that they were responsible for the murder.
The Crown relied on a body of circumstantial evidence as well. There was evidence that the applicants, as leaders of the Blacktown Chapter of the BFL employed violence and intimidation to ensure that the members of the group carried out their instructions. This evidence established a connection between the applicants and Witness L, Witness C and Witness K, each of whom was a member of the BFL Blacktown.
Evidence was also led to place events in context and to explain the conduct of witnesses, such as Witness L, Witness C and Witness K. The circumstantial case included “tendency evidence” that established that the applicants engaged Witness L to carry out another shooting a couple of months earlier. There was evidence proving a connection between Elias and the applicants, including contact shortly before and after the murder and the payment of a large sum of money into Mumtaz Qaumi’s bank account. There was evidence that Farhad Qaumi was with Witness K shortly before Witness K was arrested in possession of the murder weapon. There were a number of telephone intercepts supporting this circumstantial case, including calls demonstrating the arrangements made for meetings that the Crown asserted were relevant to the murder, and calls between Farhad Qaumi and Witness J (Witness K’s brother) shortly after Witness K was arrested.
Teagan Mullens was the partner of the deceased, having met him eight years before his death. The couple had two children, twin girls aged six years. She was unable to say much about his business. She gave evidence that he had previously been Elias’s partner but that they parted on bad terms. She said that the Elias situation never really went away. Under cross-examination she agreed that the deceased had been charged with extortion and had been in and out of gaol over the preceding 30 years. She was aware of a dispute between him and Pasquale Barbaro (Barbaro) and had been told after the murder of her husband that Barbaro had threatened to kill him. She named other persons who had had a falling out with the deceased.

The murder weapon

On 3 January 2014 (about 18 days after the murder), a .38 calibre Smith and Wesson snub nosed revolver was located by police within packaging in the rear of a vehicle driven by Witness K. The vehicle was Witness K’s work van and the rear of the van contained a number of boxes and tools relating to the installation of Foxtel (or Austar) set top boxes. The pistol was located inside a cardboard box containing one of the set top boxes. It was wrapped in a number of plastic bags including a series of zip-lock resealable bags.
Subsequent examination of these bags led to three forensic findings of significance. First, the fingerprints of Witness L and Witness K were found on two of the plastic bags. Second, female DNA consistent with that of the DNA profile of Witness L’s girlfriend/de facto partner was located on one of the bags. (Witness L could provide no explanation for his partner’s DNA being found on the bag.) David Bruce, a forensic biologist and DNA expert, gave evidence in the trial that the presence of DNA could possibly be explained by secondary transfer. Third, there was no forensic evidence (fingerprints or DNA) connecting either of the applicants with either the pistol or the bags within which it was located.
There was no issue that the .38 calibre pistol, found in Witness K’s van on 3 January 2014, was the weapon that was used to kill the deceased.
When summarising this evidence, his Honour noted that although there was no forensic evidence connecting either of the applicants to the murder weapon, the prosecution relied on evidence that Farhad Qaumi was with Witness K shortly before he was arrested in possession of the pistol. As at 3 January 2014, police were conducting surveillance. Part of that evidence came from Detective Jeffcoat on the basis of his own observations and what he was told by other surveillance police. Detective Jeffcoat observed Farhad Qaumi meet with Barbaro and Elias in, or near, the Star City Casino at 7:30pm. Farhad Qaumi was followed from the Casino to the vicinity of 12 Sheffield Street, Auburn, which was the residential address of Witness K. Two vehicles were then followed to a fast food restaurant, and to the vicinity of 100 The Homestead, Orchard Hills, the address of Witness L. By that date, Witness L was in custody. Farhad Qaumi was driving one of the vehicles (a Ford four-wheel drive). The other vehicle was Witness K’s work van. The vehicles were followed from the Orchard Hills address to the M4 Motorway. They were heading in an easterly direction but, at that stage, were not traveling in convoy.
Shortly thereafter, Senior Constable Teasel stopped Witness K and undertook the search which uncovered the murder weapon. This evidence was not disputed. His Honour observed that while the evidence did not establish a direct connection between the applicants and the murder weapon (let alone the murder itself), the Crown relied upon the evidence as part of its circumstantial case. The Crown did so on the basis that it provided some support for the evidence of Witness K and placed in context telephone calls between Farhad Qaumi and Witness J early in the morning following the arrest of Witness K. His Honour also considered that it stood alone as part of the circumstantial case on which the Crown relied to connect Farhad Qaumi to the weapon that was used to murder the deceased.

Surveillance and Associated Evidence

A number of police officers gave evidence of surveillance operations that were carried out on 11 December 2013, 16 December 2013, 17 December 2013 and 3 January 2014. (Reference has already been made to the evidence of surveillance on 3 January 2014 which related to the movements of Farhad Qaumi and Witness K in the period before the seizure of the murder weapon.)

11 December 2013

Six officers gave evidence of surveillance conducted on 11 December 2013. Two surveillance reports were tendered that summarised the observations made by the officers on that day. This evidence showed that Farhad Qaumi and two other males arrived in a silver Mercedes Benz (BNI 15E) at Coleman Park in Lidcombe at around 7:20pm on Wednesday 11 December 2013. Witness M arrived in a Mazda CX 5 (CMV 327) a few minutes later (7:23pm). The three men walked to the Mazda. There was some conversation and one of the males appeared to put something in the Mazda. The Mazda left the area at 7:33pm and the Mercedes left at 7:36pm. The Mercedes was followed and seen to head east towards the city on the M4 motorway at around 7:40pm.
At 8:10pm the Mercedes was parked in Liverpool Street in the Sydney CBD. In the rear of the car was a man who appeared to be Witness L. There is CCTV footage of an establishment called the Shark Bar depicting Elias and Farhad Qaumi embracing each other and walking together in Liverpool Street.
In cross-examination of Constable Murdoch, it was established that he did not see “the Qaumi brothers” and Elias enter the Shark Bar and the officer confirmed that they were only seen on the street outside. The surveillance police lost sight of Farhad Qaumi for a period, but the silver Mercedes was seen at 8:30pm driving down Liverpool Street, then south in George Street and then west in Broadway. There were three males in the car and it stopped at a BP Service Station on the corner of Parramatta and Missenden Road at Camperdown. At that point, a different surveillance team took over. Farhad Qaumi was identified as the person fuelling the vehicle at 8:35pm.
The vehicle was driven to Five Dock. At 8:52pm the car stopped in Spencer Street, Five Dock about 10 metres west of William Street. Farhad Qaumi and two males (inferentially Mumtaz Qaumi and Witness L) were observed standing on the corner of Spencer and William Streets between 8:57pm and 9:05pm. At 9:08pm the Mercedes remained stationary with its lights on and the three men were standing near the vehicle.
At 9:29pm Witness M’s black Mazda was observed travelling west on Spencer Street and out of sight. It had been parked in the vicinity of the Mercedes but there is no recorded observation of when it arrived in that position. It was not followed and where it went was a matter of contention in the trial. There were no recorded observations of the three males between 9:29pm and 10:10pm when Witness M’s Mazda returned. At that stage the surveillance log reported that an “unknown female (herein referred to as UF1) exited via the driver’s door and an unknown male (UM1) exited via the rear driver’s side door”. Farhad Qaumi, UM1 and UF1 walked toward the northern end of Spencer Street. There was no dispute that UF1 was Witness M.
The police officer making the observations thought that Farhad Qaumi when joining the other two, came from the northern side of the vehicle and not from the southern side where the Mercedes Benz was parked. Under cross-examination, the police officer said that between 9:08pm and 10:10pm he did not observe Farhad Qaumi, UM1, UM2 and Witness M. The police officer agreed that he did not see Farhad Qaumi getting out of the Mazda vehicle.
At 10:10pm the occupants of the two cars were seen conversing in the vicinity of the vehicles and Farhad Qaumi and Witness M were “hugging and kissing”. When a marked police car drove south on William Street, they returned to their vehicles and left the area.
His Honour set out his conclusions in relation to that evidence as follows:

“105 This review of the evidence and cross-examination is not exhaustive but there was no real challenge to the general thrust of the evidence of surveillance on 11 December 2013. It appears that the surveillance commenced at 7:20pm and there is no surveillance evidence of where the cars and their occupants were before that time. However, the cars arrived at, or near, Coleman Park separately, around 3 minutes apart, at 7:20pm and 7:23pm respectively. Again, this has some significance in light of some of the evidence of Witness M.”

16 December 2013

His Honour noted that the evidence of surveillance on 16 December 2013 was to be considered in the light of the fact that the murder occurred at around 9:35pm that night. The evidence of the police officers making the observations on that date was not challenged.
At around 7:00pm that night, police observed a group of five men at the Subway restaurant in Kellyville. The group included Farhad Qaumi, Mumtaz Qaumi, Witness L and Harris Sadat, each of whom was associated with the BFL Blacktown. There was some discussion around a mobile telephone. Farhad, Mumtaz and Witness L left in the silver Mercedes previously associated with Farhad Qaumi. The vehicle was observed to leave the area driven by Farhad Qaumi.
At around 10:40pm surveillance police observed Witness L on the street outside his home in Orchard Hills. He was standing next to a black Lexus and was not wearing a shirt. Witness L then walked towards his home and the Lexus left the vicinity. It headed to the M4 Motorway and travelled in an easterly direction. It pulled over into the breakdown lane in the area of Wallgrove Road. There was no issue that Witness C was the driver of the black Lexus.
Keith Weise was employed by the Roads and Maritime Services Department and was responsible for traffic patrols on the M4 on 16 and 17 December 2013. He said that at around 11pm on 16 December 2013, he observed a black Lexus stopped on the side of the road. It had a flat tyre. Mr Weise and a colleague helped the driver to change the tyre. The vehicle drove off at around 11:22pm.

17 December 2013

Surveillance police gave evidence of their observations on 17 December 2013. A surveillance report was tendered.
His Honour noted that there was no challenge to the evidence of the observations made on that night and accordingly, regarded the following matters as established”

“111 At 2:27pm Farhad Qaumi and Mumtaz Qaumi attended the Shark Bar in Liverpool Street Sydney and entered the poker machine area. At 3:03pm Les Elias entered the Shark Bar and also entered the poker machine area. He left that area, went to an ATM, and returned. At 3:22pm the three men left the area and sat together in the main bar area of the Shark Bar. There was a news story on the television about the Antoun murder and the three men appeared to watch the television and then turn away when the story ended. At 3:57pm the three men left the hotel and at 4:10pm were talking in or near a silver Mercedes sedan (BNI 15E). At 4:15pm the three men shook hands and left the area.”

Apart from the fact of the meeting and that a conversation took place between them, his Honour placed no weight on the fact that the police observation suggested that they were watching a news item concerning the murder. This was because his Honour concluded that the fact that the men watched a news item concerning a murder was not capable in any rational way of establishing that the applicants and Elias were involved in the murder.
Detective McAneny was the “second in charge” in the investigation. He gave evidence of the initial investigation and the search of premises associated with Witness C. Witness C declined to be interviewed. From 10 to 13 February 2014 police obtained CCTV footage from a number of premises in the vicinity of Sunnyholt Road and Bessemer Street, Blacktown. The CCTV footage was taken on the day of the murder (16 December 2013) at times between 7:15pm and 8:05pm. It showed cars consistent with a silver Mercedes (like the one associated with Farhad Qaumi) and a black Lexus (like the car driven by Witness C) being driven in close proximity to one another in the area of Bessemer and Forge Streets in Blacktown. Police charged Witness L with murder on 21 January 2014 and interviewed him on 14 October 2014. On 10 February 2014, police located some burnt items in the area of Landsdowne Road at Orchard Hills. These included an Apple iPhone and some clothing.
The cross-examination of Detective McAneny elicited evidence of a number of persons who had motive to do harm to the deceased and of the failure of police to obtain statements from a number of such persons due to their refusal to co-operate. There was a denial of involvement (and refusal to testify) on the part of Elias and statements made to investigating police by some of those people (including Barbaro). A number of documents were tendered during the course of the cross-examination. These included a document setting out the results of the forensic examination (fingerprints and DNA) of the murder weapon and the bags in which it was located. This connected Witness C and Witness L to the weapon and also disclosed the DNA of Witness L's girlfriend on the bags.
At the time of these investigations, Elias was living in the Philippines and refused to return to Australia to give evidence. No attempt was made to extradite him. Police met him in the Philippines and Investigator’s Notes dated 3 and 4 April 2014 were tendered. These purported to summarise conversations between Elias and police. The basis upon which this evidence was admitted turned on whether it was first or second hand hearsay. Where it was first hand hearsay, it was admitted as going to the truth of the assertions or representations contained in the documents. Where it was second or third hand hearsay, i.e. where Elias told police things that others had told him, it was admitted on a limited basis.
Elias denied any involvement in the killing of the deceased. He told police he “would never employ someone as crazy as the Qaumis to do something like a contract hit”. He described the business dealings which he had with the Qaumi brothers, including the proposed purchase of Mumtaz Qaumi's kebab shop. Elias told the investigators that he believed he had paid $100,000 for the kebab shop. There was evidence of text messages and telephone intercepts that supported the involvement of other people seeking to gain access to the shop and run it. Elias said that he provided a bank cheque for $100,000 to Farhad Qaumi in exchange for cash. This $100,000 appeared to be subject to a NSW Crime Commission (Crime Commission) seizure of a bank account operated by Farhad Qaumi. A document was produced showing that the money was a “gift” from Elias. This document was located in a search of Farhad Qaumi’s home. Elias also referred to lending Farhad Qaumi a Lamborghini sports car.
Elias told police about other people and their associations and links to himself, the Qaumi brothers and the deceased. This included Barbaro and the fact that the deceased owed Barbaro a large amount of money. Elias nominated people that he considered the “most likely suspects” for the murder. In cross-examination Detective McAneny was asked about various persons who might have been involved in the killing of the deceased because of their animosity to him.
Police spoke to Barbaro, who flatly denied any involvement in the shooting and denied more generally using violence in the course of his business as a “mediator”. He told police that he believed the Qaumis saw Elias as somebody they could stand over (“stamp”) for money. He said that he was with Elias shortly after the murder and that Elias was not upset but “seemed genuinely perplexed as to how it occurred” and “didn't look like a bloke who'd just arranged a murder”.
Detective Peter Smith was the officer in charge of the investigation. He gave evidence of the initial investigation, including the arrest of Witness C, the search of his premises, his initial reluctance to speak to police and the circumstances in which he came to co-operate with police. Detective Smith gave similar evidence in relation to Witness L. Both of those witnesses initially refused to co-operate but subsequently assisted police when charges against them were reduced and letters of assistance were promised. A number of documents were tendered through Detective Smith that comprised important parts of the Crown’s circumstantial case.
A document was tendered that showed that Mumtaz Qaumi’s kebab shop was offered for sale through Gumtree in the latter part of 2013 for an asking price of $25,000. The Crown contrasted this with the much higher price ($190,000) agreed between Mumtaz Qaumi and Elias. An ANZ banking document, which was seized during the course of a search of Mumtaz Qaumi’s home, showed a transfer from “KPM of $80,000” into Mumtaz Qaumi’s account on 19 December 2013. Westpac bank statements showed $80,000 going into Mumtaz Qaumi’s account on 20 December 2013 and there was a reference to “Elias Elias kebab shop”. There were other documents located in a search directed to Mumtaz Qaumi’s business interests, including an application and registration of a business name (Erina Kebab House) on 28-30 August 2013. A document, dated 2 September 2013, evidenced a gift of $100,000 from “Les Elias, Director of KPM Building Pty Limited” to Farhad Qaumi for “family restitution”.
On 4 December 2013, both Farhad and Mumtaz Qaumi spoke with Elias by telephone. There was a discussion about providing contracts for “the shop” and a reference to “a hundred and ninety grand for the shop [with] twenty grand deposit.” On 5 December 2013, Elias told Mumtaz Qaumi “I done it, that’s out of the way” and “so now you can’t sell it – that shop’s mine.” He laughed after making that comment. At 3:44pm on 9 December 2013, Mumtaz Qaumi and Elias discussed meeting “at the same place. Upstairs”. CCTV stills from the Shark Bar Hotel showed a meeting between the three men between around 5:30 and 6:45pm. On 10 December 2013, there was discussion between Farhad Qaumi and Elias about “documents regarding that manufacturing plant”. On 11 December 2013, Mumtaz Qaumi spoke to Elias about a factory.
On 11 December 2013, there were phone calls between Witness M and Mumtaz Qaumi about meeting that day at Lidcombe. The language specifying the venue of the meeting was circumspect. His Honour concluded that this evidence fitted in with the surveillance evidence of the meeting at Lidcombe that day.
On 16 December 2013, there were telephone intercepts involving the applicants, Harris Sadat, Masieh Amiri and Witness C. There was a text message from Farhad Qaumi to Elias at 1:51pm asking “wats happening with my wages” and a message from Elias to Mumtaz Qaumi saying “I need that Warranty papers for the truck … also a receipt for the deposit for the shop”. Mumtaz responded at 5:10pm “I will drop off warranty for the truck and show you [receipt] for the shop tomorrow”. Between 5:10pm and 5:20pm Mumtaz Qaumi’s telephone dialled the number of Witness C on nine occasions but the calls were not answered. His Honour observed that that evidence was to be considered with the surveillance evidence of meetings later that day.
Between 17 December 2013 and 3 January 2014, there were a number of further intercepts, some of which were consistent with Elias having purchased the kebab shop and others which referred to the provision of a Lamborghini by Elias to Farhad Qaumi.
On 3 January 2014, there were CCTV stills showing the two accused, Elias and Barbaro at the Star City Casino and there were telephone intercepts between Farhad Qaumi, Witness K and Witness M. This was the day that police made observations that preceded the arrest of Witness K and the seizure of the murder weapon.
Detective Smith produced photographs and certificates connecting Farhad Qaumi to the silver Mercedes and Witness M to the black or very dark coloured Mazda CX 5 which had two registrations during the relevant period.
The final item tendered through Detective Smith was a telephone intercept between Pasquale Barbaro and Farhad Qaumi on 30 December 2013.
Detective Smith was cross-examined about other persons with a motive to harm the deceased. The cross-examination emphasised that none of the persons who provided information to police concerning enemies of the deceased or who were implicated by it, provided statements or gave evidence and it was submitted by the applicants that “the wall of silence surrounding this case from a number of witnesses who nearly certainly know things, is a reason to have a reasonable doubt”.
The cross-examination of Detective Smith, on behalf of Mumtaz Qaumi, focused on the sale of the kebab shop. There was an intercepted communication from Elias about the possible sale of the kebab business to a person called “Fred” on 14 December 2013. There were communications about the lease and the sale of the shop on 27 December 2013. There was a further communication which identified Elias as the purchaser and the suggestion that he might operate the business as a “franchise” but that the lessor was insisting on payment of the rent. There were further text messages on 28 December in which Elias attempted to arrange for his manager to inspect the shop.
His Honour made the observation concerning those communications that although Elias had said “that shop’s mine” on 5 December 2013, the transfer of $80,000 from him to Mumtaz Qaumi did not occur until 20 December 2013.
Detective Smith was recalled at the end of the Crown case. He provided evidence of the segments of events relevant to the possibility of contamination of the evidence of Witness L and Witness M in relation to the sale of Mumtaz Qaumi’s kebab shop and the telephone intercept material concerning Elias. The relevant evidence of those matters was served after Witness M and Witness L had given their statements. In further cross-examination, a number of Google maps were tendered along with a schedule, allowing comparison between the telephone connections between Witness M and Witness L.
There was cross-examination about Witness L’s interview of 14 October 2014. This demonstrated that Witness L told police that it was Elias (not Barbaro) who the applicants nominated as the person from whom they accepted the contract to kill the deceased. It was also established that a number of potential witnesses refused or were not asked to make statements.
In relation to the telephone intercepts and records, his Honour made the following observation:

“145   The records demonstrated the cell tower through which a mobile telephone connects. The records show the name and location of the cell tower. There was no evidence of the expected coverage of the specific cell towers and the evidence is not capable of establishing the location of a telephone (let alone its owner) with any degree of certainty. The evidence was that the ‘phone connected to the tower with the strongest signal rather than the closest tower. However, where a ‘phone connects to different towers (either in the course of one call or in a sequence of calls), this is “almost certainly involved with somebody moving the ‘phone” or, at least, that is the probable explanation.
146   The records were capable of providing circumstantial evidence of the approximate location of people’s mobile telephones. When the records indicated movement and either calls or texts were most likely made by the owner of the ‘phone, they provided evidence of the approximate location of the user of the telephone.
147   In some instances, the telephone evidence cast doubt on, and potentially contradicted, the evidence provided by the Crown witnesses. For example, there was nothing in the records relating to Witness M’s telephone that supported her evidence that she had carried out some kind of surveillance on the Antoun household in the days between 11 December 2013 and the murder on the 16 December 2013. In fact, the evidence tended to contradict her evidence because the ‘phone was moving and in a number of locations far away from Strathfield. The people with whom the communications related suggested, to a degree of near certainty, that they were her calls and texts. The records also showed that a telephone associated with Witness L was not in the same location as Witness M’s ‘phone on the days she suggested they were carrying out surveillance together.” (Footnotes omitted.)

Informants’ evidence

The direct evidence of the applicants’ involvement in the murder came from a number of people who were either members of the BFL Blacktown or otherwise connected with that group. The Crown called seven such witnesses. Two of them (Witness L and Witness M) gave direct evidence of their own involvement in the murders, as well as that of the applicants. Two others (Witness C and Witness K) gave evidence that they were directed by the applicants either to drive Witness L to the scene of the murder or to dispose of the murder weapon. The final three witnesses (Witness J, Witness A and Witness E) gave evidence of peripheral relevance including the nature of the BFL Blacktown, its activities and command structure, and particular incidents of violence within the club. Each of the witnesses, but in particular Witness M and Witness L, was subject to a formidable attack on their credibility.

Witness J

Witness J was involved in the criminal activities of the BFL Blacktown and received a substantial reward for his offer to give evidence against the applicants. His evidence related to his knowledge and involvement in a shooting at Revesby Heights on 28 October 2013 and the structure and activities of the BFL Blacktown in general.
He gave evidence that Farhad Qaumi was the leader of the BFL Blacktown and that Mumtaz Qaumi was the second in command. Farhad Qaumi ruled the group with fear and had on one occasion told him that “he put fear in the members’ hearts and they’ll obey him”.
He gave evidence that in October 2013 Witness M told Farhad Qaumi that Mohammed Hamzy (the leader of the BFL Bankstown) had paid someone to try to kill Farhad Qaumi. He advised Farhad Qaumi not to react to this threat and that Farhad became angry with him. Mumtaz had agreed with Farhad’s proposal “to get Mohammed Hamzy”. He said that Mumtaz always agreed with Farhad. Farhad told members of the group “you have to kill Mohammed Hamzy”. He saw Farhad load a .45 calibre pistol while wearing gloves and give it to Witness L. He said that Farhad planned to be somewhere where he was under observation by cameras when the murder took place. Later, Witness J was told that the wrong person was shot.
The Crown adduced this evidence for a particular purpose, namely to establish a tendency in the applicants to direct Witness L to carry out shootings on their behalf. His Honour directed himself that the evidence could not be used in any other way. His Honour noted that although the fact that Witness L was directed or requested to carry out the Hamzy shooting was not disputed, the circumstances of the two shootings were self-evidently very different. The Hamzy shooting was a response to a threat posed by Hamzy to kill Farhad Qaumi whereas the Antoun shooting was alleged to be a contract killing. Accordingly, his Honour found that the only tendency it was capable of establishing was the applicant’s use of Witness L as a shooter. It had no real probative value to any other issue in the case.
In cross-examination in the jury trial, Witness J provided a more detailed account of what Witness M told Farhad and the other members of the group in the lead up to the Revesby shooting. He agreed that Witness M appeared to have a lot of influence over Farhad and that Farhad appeared to be “very concerned about what she was telling him and the group”.
Witness J gave evidence of driving to Canberra with Farhad and Mumtaz Qaumi around Boxing Day of 2013. There was a discussion in which Farhad told him that he had a firearm stored somewhere which he wanted to move and that it was in the bush somewhere around Penrith. Farhad said the firearm was “a small 38” that came from Witness M and that it had been used by Witness L. In cross-examination, Witness J agreed that all he could really remember was that something was said about a small 38, something was said about Penrith and something was said about Witness M and Witness L. He was not able to say whether what Farhad actually said was “that Witness M had supplied a small 38 to Witness L and that he had used it” but he was clear that Witness M was the supplier of the pistol. In the jury trial, Witness J agreed in cross-examination that Witness M was a person who had access to firearms.

Telephone intercepts of three phone calls between Farhad Qaumi and Witness J on 4 January 2014 were tendered. The calls related to the arrest of Witness J’s brother, Witness K. His Honour noted that this evidence had to be considered with the surveillance evidence that preceded the arrest, the identification of the pistol as the murder weapon, a telephone intercept involving Witness K recorded at 10:38pm on 3 January 2014 and the conversation which he had with Farhad Qaumi on Boxing Day 2013.
Senior Constable Teasel gave evidence that Witness K was arrested shortly after 10:00pm and that the pistol was located at about 11:15pm. The call at 10:38pm was from Witness K and the other speaker was not identified but said “it’s your brother-in-law”. Witness K said (partially in a foreign tongue):

“[The police have got me] I’ll call you back in five minutes.”

And

“Yeah. Tell him. [Detectives] pulled me over, I’ll call him back in ten minutes.”

Witness K did not say why he was arrested or that the police had located a firearm in his possession. In the first call between Farhad Qaumi and Witness J at 2:02am the following morning, Farhad Qaumi said of Witness K “I think he got locked up” and “I think they found an At-Gay in his Ar-cay”. Witness J gave evidence that “At-Gay” was code (Pig Latin) for gun and Ar-cay was code for car. Witness J said “Fuck, why did you give it to him for bro” after which Farhad became angry (or sounded like he did) and said “I haven’t given nothing to no-one, what the fuck are you talking about”. He went on to say “what the fuck are you on about you idiot … giving what to who? What?” Farhad said he was “just telling ya what he told ‘Moey’. He goes ‘I got pulled over’. That’s all I meant.” Witness J was told to make inquiries to find out the location of the police station where his brother was being held.
In a call recorded at 2:07am Witness J sought more information as to the area where his brother was arrested. Farhad said:

“I don’t know anything cuz. I don’t know nothing cuz. All I know, we got pulled over me cuz, and this girl got pulled over cuz and I overheard the coppers saying something about a white van, that’s all I know brother.”

And

“And he rang Moey and he goes he got pulled over. I don’t know if it was for drive driving [sic]. I don’t know what it was for. I don’t know anything brother. And now I’m trying to call his phone and his phone is off.”

Witness J was directed by Farhad Qaumi to ring Parramatta Police station and all the western suburbs police stations.
At 6:52pm on 4 January 2014 Witness J telephoned Farhad and provided a report of what he had found out. He said that police had been at his father’s house and that “there was another guy behind him and they, they said someone’s name [I won’t say your name, the name like], yeah and then I go nah, I go, I go yeah it got nothing to do with anyone ... I don’t know what you’re talking about, he wasn’t being followed by anyone.”
There was a discussion about Witness J and Farhad seeing it “on the news”. Witness J said he was “spewing” because “the cunts never been in trouble before in his life” and was “supposed to go fucken Tamworth bro in two days work”.
Farhad asked whether the arrest was “on the M4”. Witness J repeated that there was another car and that “some guy starting with F was in it” but that Witness J said he’s “got nothing to do with that guy … we don’t even associate with him.” Farhad said he was pulled over on 3 January 2014 in Guildford and Witness J confirmed “these dogs are trying to say that you were behind him, I go nah, it just not true, it not true at all”. Farhad agreed saying “na that’s bullshit man” and “I don’t know nothing about anything … I haven’t got nothing to do with no one brother.” Farhad went on to say that he did not know “what the fuck had happened” apart from the fact that Witness K called Moey. He told Witness J “if I was behind him, wouldn’t they, wouldn’t they have pulled me over too.”
The conversation became tense after Witness J again said he was “spewing” and “dirty” because his brother “had his life on track”. Farhad accused Witness J of “[leaving] us posted” and said “he would never look at you the same ever again bro, ever again brother”. It is not clear precisely what these words mean, but Farhad Qaumi’s tone was tense, if not angry. He repeated that if he had he been driving nearby the police would have pulled him over and said “I am innocent and they are trying to throw my name around”.
His Honour found that this series of conversations was relevant to the issue of Farhad Qaumi’s knowledge and involvement with Witness K in the period shortly before the latter’s arrest. Initially, Farhad Qaumi referred to Witness K being arrested with a gun but later claimed that he did not know why he was arrested. The earlier call from Witness K to “Moey” made no reference to the reason for his arrest. However, evidence from Witness M suggested Farhad may have heard about the reason for Witness K’s arrest from police. At no stage did Farhad tell Witness J that he had been with Witness K earlier in the evening or what they had been doing together.
The Crown submitted that this evidence gave rise to an inference that Farhad knew that Witness K was arrested because he was in possession of a pistol. It is capable of providing some support for Witness K’s evidence as to how he came to possess the murder weapon and provided an indirect, but potentially important, connection between Farhad Qaumi and that weapon. The Crown accepted that it was not capable of establishing that Farhad knew that the weapon was used in a murder, let alone that he had executed a contract on behalf of Elias by directing Witness L to carry out the murder. The evidence of these calls between Farhad Qaumi and Witness J was not admitted in Mumtaz Qaumi’s case.
His Honour took into account that Witness J was criminally concerned in the criminal activities of the BFL Blacktown and had received a substantial reward for his co-operation with police. He was a witness whose evidence might be unreliable and his testimony had to be carefully examined before it was safe to act upon it. His Honour noted that under cross-examination Witness J was prepared to make concessions but his memory of detail was not always clear. His Honour noted that the cross-examination was designed to clarify and elicit further information rather than to impeach his credibility altogether. His Honour found that a good deal of this evidence was not in dispute and that parts were corroborated by independent evidence such as telephone records and intercepts. The applicants also placed some reliance on his evidence to impeach the credibility of Witness M. His Honour noted that when asked in addresses whether Witness J should be considered to be a witness of credit, Senior Counsel for Farhad Qaumi said “largely, yes”. His Honour accepted the evidence of Witness J.

Witness M

Witness M on her own account was criminally concerned in the murder of the deceased. She claimed to have been told about the contract and carried out some surveillance of the deceased’s residence in the days leading up to the murder. His Honour found that there was no evidence capable of supporting this version of events. His Honour found that the telephone records and Witness L’s evidence did not support it and tended to undermine Witness M’s version of events.
His Honour found that if this part of her account was false, the balance of her evidence had to be treated with extreme scepticism. He noted that she was not charged with her involvement in the deceased’s killing and received a large discount (50 per cent, including her plea of guilty) from the sentence in relation to the Hamzy shooting and other criminal activity. The charges she faced were reduced significantly as a result of her belated co-operation with the prosecution. His Honour found that she was motivated by self-interest, rather than any genuine desire to assist authorities, or to right a wrong.
His Honour found that Witness M demonstrated a strong animosity towards the applicants and had a number of strong motives to give evidence against them. She had previously given false evidence under oath.
Witness M gave evidence over seven days, from 17 to 28 November 2016. Most of this time was occupied by cross-examination. Her evidence was in dispute in most significant respects. Because his Honour had made adverse findings as to her credit, he indicated that he would only accept her evidence when it was not in dispute or where it received support from other evidence.
In her evidence in chief, Witness M said that she came to meet the Qaumi brothers through her long time association with the Hamzy family. She had been the girlfriend of Bassam Hamzy from 1998 to 1999 when he was in custody for murder and other serious offences. By 2013 she had come to know Mohammed Hamzy, the leader of the BFL Bankstown. It was through this connection that she came to meet Farhad Qaumi. She was aware of discussions between the groups and their leaders concerning the area where each would operate and she passed messages between them. She said the Blacktown chapter was to operate between Granville and Blacktown.
Witness M was taken to the events of 28 to 29 October 2013 and gave a version of events concerning her involvement in the shooting at Revesby Heights. In some respects, her account was not in dispute but it clearly suggested that she was understating her involvement and role in the shooting.
By way of example, his Honour pointed out that Witness M gave a different version of what she told Farhad and the others as to the threat posed by Hamzy and claimed that she was co-opted into being the driver. Other witnesses suggested that she volunteered for that role. Where there was a conflict in the evidence, his Honour accepted the evidence of Witness J and Witness L over that of Witness M. His Honour said that where the evidence of Witness M was not in dispute or where it accorded with the evidence of other witnesses, especially Witness J and Witness L, he was prepared to accept it. His Honour found that otherwise the conflicts in her evidence were only significant in that they reflected upon her credibility and provided a further reason to treat her evidence with a great deal of caution.
In evidence in chief Witness M said that before the Antoun shooting, she met with Farhad and Mumtaz Qaumi in a “little dead end street in Blacktown”. She said that Farhad told her that he had been offered $200,000 by Elias to kill the deceased. She said Mumtaz was present in the area but she was not sure whether he was there when Farhad told her this. However, both applicants were present when she was told how the money would be paid:

“A. Les was gonna get – Mumtaz was selling his kebab shop and Les was going to give them $150,000 for the kebab shop, even though it wasn't worth that, just to, like, cover the money so it's clean. And Mumtaz could keep – like, Les wasn't buying the kebab shop. Mumtaz could keep it and Les would just get someone to run it for him and Mumtaz would keep the money.”

Witness M also said that Farhad told her that the Crime Commission had seized $100,000 from his son’s bank account and that Elias went to the Crime Commission to say that he had given Farhad the money. She said that she had referred Farhad to a particular lawyer to assist with the Crime Commission proceedings.
On 12 December 2013, she rented a motor vehicle. She gave evidence that the day before she rented the car, i.e. 11 December 2013, she met with Farhad, Mumtaz and Witness L at Lidcombe. She drove to the location in her Mazda and then travelled in Farhad’s Mercedes with the three men to Strathfield where they looked for a house. They had difficulty in finding the house and a call was made to Elias. Farhad said that they had to go to the city to “meet Les.” Later that night, she met with Farhad, Mumtaz and Witness L at Five Dock and they all jumped into her car. They drove to Strathfield again and looked for an address which Elias had described as having “a tree in the front of the yard, a shit box car and a double-storey, like a big house next door to it.” Eventually they found a house that met that description. Witness M identified a photograph of the house. She said that Farhad told Witness L to “remember this house” and that they then drove back to Farhad’s car in Five Dock. She said that she gave her car to her nephew and rented the car the next day on Farhad’s instruction.
His Honour found that Witness M’s account of the meetings and movements on 11 December 2013 received general support in the surveillance evidence and the telephone intercepts. He noted, however, that contrary to parts of her evidence, the surveillance evidence established that she did not arrive at Coleman Park in Farhad Qaumi’s Mercedes – the vehicles were seen to arrive separately. The surveillance team did not follow the Mazda when it left William Street, Five Dock at 9:29pm and there was no evidence that directly supported her evidence that the group then drove to and from the deceased’s residence in Strathfield. However, Farhad Qaumi’s Mercedes remained in the same spot until the Mazda returned at 10:10pm. The evidence of the police officer was that Witness M and at least one male emerged from the Mazda on its return. That officer could not see the other side of the car or say where Farhad came from when the group – Farhad Qaumi, Witness M and two unidentified males (inferentially Mumtaz Qaumi and Witness L) – were observed together in William Street after the return of the Mazda at 10:10pm and the departure of both vehicles 10:22pm.
His Honour found that it was significant that Witness L did not remember whether Witness M was present on 11 December 2013 but the surveillance evidence suggested that, on this issue at least, Witness M’s memory was to be preferred to that of Witness L.
Witness M said that over the next three days that she used the rented car to carry out Farhad’s instructions to go with Witness L, to watch the house and to identify a person described as “a bald guy, he’s a junkie and he jogs at 6 o’clock every morning”. She said they were supposed to conduct this surveillance “like before 6 o’clock, but we didn’t.” She said that she and Witness L spent “hours” over three days watching the house but they didn’t see the “bald guy” because they were “hardly ever there … we would just drive around or like sit in a park or sit in a street.” This version of events was extremely vague. For example, the time of day was never made clear and telephone records and synopses of intercepted calls suggested that her phone was making calls from locations far away from the Strathfield area. Witness L gave no evidence of any such reconnaissance in the days leading up to the murder. While some of the telephone records allow for the possibility that her phone was in Epping (unanswered) for periods when she might have been conducting some kind of surveillance in the Strathfield area, his Honour had grave reservations about this part of her evidence.
Witness M gave evidence that after the shooting, Farhad Qaumi told her that “the hit was done” and that “he got [Witness L] and [Witness C] to do it” but that “[Witness L] fucked up because the guy had cameras and he didn’t cover his face.” She said Mumtaz was present during that conversation.
Finally, Witness M gave evidence of being with Farhad Qaumi on the night of Witness K’s arrest. She said that they met in a park in Granville or Guildford. They were walking near Farhad’s brother-in-law’s house and were stopped by police. They were taken to Granville Police Station, held for 45 minutes, and left together in a taxi. She was dropped at Parramatta and Farhad went on to the Central Coast. She said Farhad told her that Witness K had been arrested and she heard Farhad speak to Witness J on the telephone. Aspects of this part of her evidence received support from the evidence of Witness J and the telephone intercepts.
The cross-examination of Witness M ranged over days and many subjects. His Honour was not prepared to set out in detail the areas in which her evidence was demonstrated to be inconsistent internally or in conflict with other evidence in the case. Nevertheless, his Honour concluded that in order to understand the reasons why he concluded Witness M’s evidence could not be accepted unless it received support from other evidence, it was appropriate for him to set out some of the more troubling aspects of her evidence.
His Honour noted that Witness M’s co-operation with law enforcement authorities came very late. She had knowledge of, and direct involvement in, two homicides and a number of other serious crimes in the latter part of 2013 but did not assist authorities until 2016 when she made a series of statements and then entered pleas of guilty. In the meantime, she gave evidence at the NSW Crime Commission and, on her own admission, lied under oath.
His Honour found that Witness M’s admission that she had perjured herself in giving evidence at the Crime Commission had an obvious impact on her credibility. His Honour found that Witness M’s evidence in the Crime Commission also potentially had a more subtle impact on her credibility. His Honour concluded that the method of examination at the Commission involved providing witnesses with information that had been gathered in the course of an ongoing investigation. This had the capacity to contaminate versions of events that she later provided to police or gave in evidence. Witness M said “she couldn’t remember what happened at the Crime Commission”. Although it was not made clear what information the Crime Commission actually disclosed to Witness M, it was obvious that she had been asked questions about the sale of the kebab shop and the meetings and phone calls on 11 December 2013.
His Honour noted that the fact that her plea came so late meant that she and her lawyers were served with the entirety of the prosecution brief. As a result, and assuming that Witness M had read and digested the brief or relevant parts of it, she was in a position to tailor her evidence to fit in with evidence already gathered by police. His Honour concluded that her evidence might have been contaminated unconsciously by things that she had read in the brief.
His Honour found that putting aside the possibility of contamination, the evidence showed that Witness M was a manipulative person, motivated by self-interest, with a capacity to lie to achieve her own ends.
Based on the evidence of Witness J and Witness L, his Honour was satisfied that Witness M understated her involvement in the Hamzy shooting. His Honour did not accept her evidence as to what she told Farhad Qaumi about Mohammed Hamzy’s intentions and he formed the view that she deliberately minimised the things that she told the group in order to shift the blame for the Hamzy killing to others (specifically to Farhad Qaumi). His Honour accepted that she volunteered to drive when Witness J exhibited a reluctance to be involved whereas her own evidence was that she was co-opted by Farhad Qaumi to be the driver. In this regard, his Honour accepted the evidence of Witness J and Witness L, and rejected Witness M’s evidence that she was a reluctant participant.
Based on the absence of corroboration from Witness L and the telephone records, his Honour did not accept the evidence of Witness M that she carried out surveillance of the Strathfield premises for three days before the shooting. His Honour found that her evidence on this topic made very little sense and was vague and unconvincing.
Based on the tone of the telephone intercepts between herself and Farhad Qaumi, his Honour did not accept her evidence that she “hated” Farhad Qaumi, was frightened of him and was compelled to follow his orders because she had been “threatened by him” in the period around and after the Hamzy and the Antoun shootings. His Honour found that the telephone calls between them in the period 20 December 2013 and 4 January 2014 suggested the opposite and his Honour did not accept that she was simply putting on an act in the telephone calls.

The applicants tendered a telephone intercept of a call between Witness M and Pasquale Barbaro. The call was recorded on 23 January 2014. The parties apparently sounded very friendly in this conversation which concerned Barbaro giving Witness M Elias’s telephone number. Witness M advised Barbaro that the “word on the street” was that he was an informer. Barbaro was amused by this. The telephone conversation was a lengthy one and covered a number of topics including that Mohammed Hamzy was in gaol. The applicants relied upon the closeness of the relationship between Witness M and Barbaro as supporting the possibility that Witness M, who had access to guns, had organised the murder of the deceased on Barbaro’s behalf. This possibility also took into account Barbaro’s apparent hatred for the deceased.
In commenting on the evidence of Witness M his Honour said:

“187   Witness M’s evidence of admissions made by the [applicants] after the murder is completely uncorroborated and I am not prepared to act on it. It is evidence that is easy to fabricate and impossible to disprove. Even though it is not necessary for the Crown to prove these alleged admissions to any relevant standard, I have decided that I must disregard altogether Witness M’s evidence of admissions allegedly made by the [applicants] after the event.
188   The fact that Witness M’s evidence is rejected on a number of issues, along with her history of lying on oath, is a matter to be taken into account in assessing her evidence in relation to other issues.
189   Another significant matter in assessing her evidence is the fact that her account may have been contaminated by, or deliberately fabricated by reference to, her knowledge of the brief and things she was told in the course of her evidence at the Crime Commission.
…
193    While I treat Witness M’s evidence with extreme circumspection, it remains relevant and potentially important. Where it receives independent support that is not explicable by contamination or collusion, it is evidence that can properly be taken into account. In other instances, the accused rely on inconsistencies between her account and that of other witnesses (in particular Witness L) to cast doubt on the version of events advanced by the prosecution.”

Witness L

His Honour noted that Witness L was the only witness who gave direct evidence that it was the applicants who engaged or directed him to carry out the killing. When dealing with his evidence, his Honour noted that he was a witness with many obvious credit issues and concluded that it would be dangerous to act on his evidence in the absence of independent support.
Witness L had been a member of the BFL since his release from prison where he had been serving a sentence for robbery. When the Parramatta Chapter of the BFL split into three groups Witness L went with the Blacktown group led by Farhad Qaumi. He said that the group was involved in drug dealing, “drug rips” (the extortion of rival drug dealers) and the possession of guns. Farhad Qaumi led meetings of the BFL Blacktown and his orders were expected to be obeyed. Witness L gave evidence of two or three incidents when people were bashed for failing to follow orders. One of the persons to have suffered in that way was Witness C who was punched and kicked by a group of members on Farhad’s order and hit with a dumbbell. Witness L gave evidence that guns were stored at Farhad Qaumi’s brother-in-law’s house in Granville and at a warehouse near the clubhouse in Blacktown.
Witness L was one of a number of BFL members who went to Mohammed Hamzy’s house in Revesby Heights on 29 October 2013 in order to kill Mohammed Hamzy (who was known as “Little Crazy” or “LC”). Farhad Qaumi told the group that they were going to shoot LC that night and decided that Witness L, Jamil Qaumi and another man were to be the shooters. Farhad handed Witness L a .45 calibre semi-automatic pistol and the other two shooters were also given pistols. A description of Mohammed Hamzy was provided and the shooters were driven to his house by Witness M. They entered the garage and several shots were fired at a person they believed to be Mohammed Hamzy and another man. Witness L found out the next day that the wrong person had been killed.
Witness L said that in December 2013 the applicants came to his home and told him “they got a contract for knocking this bloke.” They drove Witness L in an attempt to find the house of the target but they had the wrong address. They then called up Elias and went into the city to meet him. After meeting Elias they travelled back to Strathfield and the applicants pointed out a house. Witness L said that he was told that the Qaumis would receive a contract of $200,000 from “Pasquale and Les”. Witness L said that the reconnoitre of the house was conducted in Farhad Qaumi’s car and he could not recall meeting anybody else that night. His Honour noted that those parts of his evidence were inconsistent with the version provided by Witness M who said that she was present and the group travelled in her vehicle.
In cross-examination, Witness L agreed that he had not been told the details of the contract until the day of the shooting. Later in his evidence in chief Witness L said that the Qaumis told him they would fix him up later (i.e. pay him part of the contract money). Witness L said that he never received any money.
On the day of the shooting, Mumtaz Qaumi came to Witness L’s house. When Witness L went outside he saw Farhad Qaumi who told him “we gonna do Joe today”. Witness L claimed that he expressed reluctance because they were under surveillance but Farhad said “[n]o, no, you’re just paranoid”. Witness L said he did not want to do it but was told “If you don’t do it I am going to shoot you and your daughter. You have to do it.”
One of the applicants gave him a revolver, which had been wrapped in a tea towel. Witness L put the pistol in his house and got changed. The Qaumis then attempted to contact Witness C but he did not answer the phone. They went to Kellyville Plaza where they unsuccessfully tried to organise a car. Eventually, they made contact with Witness C and a meeting took place near the Blacktown club house. The Qaumis described the target and told him to pretend to be from the TNT company and that he was there to deliver a package.
Witness L later said that the Qaumis told him to “say you Adam, you from TNT company.” Witness C arrived but was not told about the true purpose of the trip. He was directed to “just take him there. He’s just got to deliver something to someone.” Witness C was told the address and Witness L thought Witness C put the address in his GPS. Mumtaz Qaumi identified a black manual book in the car as something that could be used as a package.
Witness L said that Witness C then drove back to Witness L’s home where he got changed and got the pistol. They drove to Strathfield. Witness L went to the front door and said that he was Adam from TNT and that he had a package for Joe. The man who opened the door “was a big guy with a bald head”. Witness L pulled out the pistol and shot him, firing all of the bullets. Witness L ran to the car and Witness C drove him back to his house. Witness L said that on the way he disposed of the cartridges that were still in the revolver. He went inside, changed clothes and got some petrol. They drove about 100 – 200 metres from the house and burnt the clothes. Witness L told Witness C to get rid of his phone and the GPS. Witness L said that he hid the pistol under a tree.
The day after the shooting, Farhad and Mumtaz went to Witness L’s house and he told them what happened. They had already heard about the shooting on the news. They asked him where the pistol was and he showed them where it was. They gave him a plastic bag to put the pistol in and he put it in the same place under the tree. Farhad and Mumtaz drove him back to his house. Witness L said that he saw the applicants again at the Star City Casino. They told him they had a room upstairs and that they had Barbaro’s car which they were holding as ransom until the contract money was paid.
Witness L identified a sketch he drew that showed the location of the burned clothes and a photograph of the remains of the fire. He also identified surveillance photographs taken on 11 December 2013 and CCTV stills taken at Kellyville Plaza on 16 December 2013.
His Honour summarised the credibility issues affecting the evidence of Witness L as follows. Witness L’s involvement in two shootings and in a number of other serious offences of violence showed him to be a cold-blooded killer with a criminal propensity. His assistance to authorities followed importuning by police after an initial refusal to co-operate. He was offered reduced charges, letters of assistance and more favourable custodial conditions. Witness L received a 60% discount for his plea of guilty and assistance including a 20% reduction for future assistance. This meant that a failure on his part to give evidence against the applicants could have resulted in a prosecution appeal with a possible increase in his sentence. His Honour found that “[h]e had a strong motive to give evidence favourable to the prosecution.”
His Honour noted that the evidence of the police tactics in obtaining Witness L’s assistance was criticised by the applicants. This involved the use of other informants (the brothers Witness G and Witness I) to persuade him to “roll over”. Senior Counsel for the applicants considered police tactics on this occasion were improper and highly questionable. His Honour made no finding on that issue.
The meeting between Witnesses G and I and Witness L was covertly recorded and the recording was made available to the defence who cross-examined Witness L about it.
It is not necessary to describe what occurred between Witnesses G and I on the one hand and Witness L on 21 August 2014. It is sufficient to record that Witnesses I and G painted a very favourable picture of what it was like in prison for an informant, as distinct from an ordinary inmate. They also advised Witness L that the police were not really interested in him but wanted evidence against the applicants. They encouraged him to say that he was forced to act as he did.
For obvious reasons that meeting between Witnesses G and I and Witness L was of concern to his Honour who said:

“208   This “three way” conversation creates significant issues in the assessment of Witness L’s credibility. It demonstrates with clarity the extent to which his assistance was motivated by self-interest. More importantly, it shows that he was told that the police wanted him to implicate Farhad Qaumi and his brothers. His evidence of being forced to commit the crime, and specifically the threat he alleges was directed to his daughter, is undermined to a significant degree by the fact that this was one of the specific things that Witnesses I and G told him to say.
209   Another matter undermining Witness L’s credibility is the fact that he deliberately misled police in relation to the person he says was the third shooter in the Hamzy shooting. When he first became an informant he promised to tell the police the truth. While he was not on oath, the circumstances were such that there was a heavy responsibility on Witness L to be honest – he was seeking to obtain a significant reward, he was providing information about a homicide case and he had undertaken to provide the police with all the information that he had. He nominated Witness J as the third shooter. He knew this to be false. He also knew that the third shooter was a larger man than Witness J and gave information that would explain the difference in size; he said that Witness J was wearing a bulky jacket. These were calculated and cunning lies told in circumstances of some solemnity. It was only much later, when police investigators told him they believed he was lying, that he relented and nominated a different person as the third shooter.
210   Witness L lied when he asserted that he did not intend to kill Joseph Antoun. He fired the gun at least five times from a short distance, striking his victim in the upper body on four occasions. It is impossible to accept that these acts were not done with an intention to kill. The fact that his evidence is rejected on this important issue is a matter to be taken into account when assessing his credibility generally, and in respect of other specific issues.
211   These matters undermine the evidence that Witness L gave against the accused. It is evidence that may be unreliable. A jury would be warned in the strongest possible terms and I take that warning into account in assessing his evidence. Before acting on Witness L’s evidence I must scrutinise it with great care and look for corroboration or support from other sources. It would be dangerous to convict the accused on his evidence alone.”

Witness C

Witness C pleaded guilty and was sentenced as an accessory after the fact to the murder of the deceased. He drove Witness L to the scene but did not know the purpose of the journey until he heard five shots while waiting in the car.
Witness C joined the BFL Blacktown in 2013. He said that Farhad Qaumi was the leader of the group and that the BFL Blacktown was involved in drug dealing, drug “rips” and had a number of firearms. He was personally involved in drug supply and also drove a member called Kalal to the Zakaria house where a shooting was carried out by Kalal and in which a young girl was shot. Witness C gave evidence of an occasion when Farhad hit him with a dumbbell because he did not take Farhad’s phone call.
On the day of the killing of the deceased, Witness C missed several calls from Mumtaz Qaumi but was then called to a meeting at Kellyville. He was told “[i]t’s important, need to see you”. The location of the meeting was changed to Bessemer Street, Blacktown and there he met Farhad, Mumtaz and Witness L. Mumtaz and Farhad said “can you take [Witness L] to Strathfield? Can you drop him off home and then take him to Strathfield?” He was given an address in Jersey Road, Strathfield and Mumtaz told him to put the address into his telephone. He was told that Witness L had to drop something off at Strathfield. He drove Witness L home, where Witness L changed clothes, and then drove him to Strathfield. They drove up and down Jersey Road a couple of times while Witness L tried to find the house. Witness L took the log book from the car and a short time later Witness C heard five gunshots. Witness L came back to the car and was a “bit panicked and out of breath”. Witness C drove Witness L home and Witness L “chucked the empty shells”. That was the first time that Witness C saw the pistol. Witness L got changed and they burned the clothes he was wearing. Witness C provided sketches of the area of the shooting and the area where the clothes were burnt. The last time he saw the pistol it was with Witness L.
Witness C identified his voice and that of Mumtaz Qaumi in the recording of some telephone calls intercepted by police on 16 December 2013.
Witness C was cross-examined by Senior Counsel about his involvement in supplying drugs. He admitted that he supplied drugs on behalf of the BFL. He agreed that he was still supplying drugs for the group in late December 2013.
It was suggested that the meeting at Blacktown on 16 December 2013 was for the purpose of him handing over $2,000 in cash to Farhad Qaumi. Witness C said he could not remember handing $2,000 to Farhad on 16 December 2013 at Bessemer Street, Blacktown but he did not rule out that possibility.
It was put to him that he was only asked to drive Witness L home to Orchard Hills because that was in the same direction as his home in Windsor. Witness C said that was “wrong”. He agreed that he told police that he was asked to take Witness L to Strathfield and then home, rather than to Strathfield via Witness L’s home. He agreed that when Witness L got back into the car, he said “he’s done” and “he’s dead” and Witness C knew that he was talking about somebody at the house in Jersey Road. There was cross-examination about the burning of the clothes, who set the fire and the sequence of events.
Witness C agreed that after dropping Witness L home he had a flat tyre and made a number of calls to a girl. It was put to Witness C that neither of the applicants asked him to drive Witness L to Strathfield but he denied that proposition. Witness C agreed that he was at Silverwater Gaol in 2014 at the same time as Witness L.
In cross-examination Witness C was reminded of answers he gave to police and he agreed that the applicants may not have given him the number in Jersey Road. He said he might have put the address into a “GPS or Satnav” in the vehicle but he could not remember. He could not remember disposing of the Satnav or GPS. When he was again pressed on the suggestion that the applicants did not tell him to drive Witness L to Strathfield, he maintained his position – “I say you’re wrong.”
His Honour summarised his assessment of Witness C and his evidence as follows:

“217 Witness C was criminally concerned in the events giving rise to the charges against the accused and has a motive to give evidence implicating them. He received a 55% discount for his assistance, including 15% for future assistance. He was also criminally involved in other activities of the BFL Blacktown. There were some inconsistencies between what he told the police and the evidence he gave in the trial as well as some conflict with the evidence of Witness L. There was an opportunity for him to collude with Witness L when they were in the same gaol during 2014. His evidence may be unreliable and must be scrutinised with great care. It would be dangerous to act on it in the absence of independent support. However, he made his statement to police relatively soon (about two months) after the events and his evidence receives some support from the telephone intercepts and surveillance evidence. His credibility was not greatly damaged in cross-examination.” (Footnotes omitted.)

Witness K

Witness K was the brother of Witness J. He pleaded guilty to possession of an unauthorised firearm and participation in a criminal group. He received a reduction in his sentence of 40 per cent for his assistance including 10 per cent for future assistance (i.e. his promise to give evidence against the applicants).
Witness K gave evidence that on 3 January 2014 he received a call from Farhad Qaumi who asked him to pick him up from Thornleigh McDonalds. He did so and then they travelled back to the “Granville, Auburn” area (where the witness lived). He dropped Farhad somewhere in the area and then went home. Later that night he received another call from Farhad who said “come outside”. Farhad was there with two others and told him to “get your van and follow me”. The van was Witness K’s work van. He worked as a telecommunications sub-contractor. Farhad was in the passenger seat of a four-wheel drive driven by somebody that the witness did not know.
Witness K followed the four-wheel drive west onto the M4 motor way until they exited left, took another left turn, went down a dark street and turned right onto a gravelly road. He stopped behind the four-wheel drive. He observed that Farhad Qaumi went looking for something in the bushes. It was dark and the lights in the other car were left on.
By the time Witness K obtained a torch from his van, Farhad had found what he was looking for. He had a package and asked Witness K to put it in the van. All Witness K saw were layers of plastic bags but from its feel he assumed that there was a firearm in the package. Witness K put the package into one of the boxes in the back of his van and Farhad told him to drive back to the area, close to where Witness K lived in Auburn, and then to call him.
Witness K set off east on the M4 and was pulled over by police who searched and found the package that contained the firearm. This was the firearm later identified as the murder weapon. Witness K identified his voice on the telephone call recorded at 10:38pm on 3 January 2014. The person who said it was his “brother in law” was not Mumtaz Qaumi as was erroneously stated in the transcript. Witness K said he made that call shortly after being arrested.

Despite that finding, his Honour concluded that this evidence was of very little moment in the overall scheme of the trial. Specifically, his Honour concluded that he did not need to be satisfied that Witness L acted out of fear or was threatened. Because Witness L’s evidence of the threat to kill him and his daughter was not corroborated, his Honour declined to act upon it. His Honour did accept that Witness L was offered part of the proceeds of the crime because the evidence of Witness L on that point was corroborated to some extent by Witness M and fitted with his attempts to meet with the applicants in the days following the murder.

The DNA on the bag containing the murder weapon

His Honour accepted that the evidence that matched the DNA found on one of the internal bags in the package containing the pistol with that of Witness L’s de facto partner was capable of undermining Witness L’s credibility. On the account of Witness L, the plastic bags were given to him by the applicants when they were at the location where the pistol was hidden. In other words, the bags were not in his house and there was no way that his partner could have touched them.
His Honour found that there were a number of possible explanations for this. One was that Witness L was lying and that he packaged the pistol using bags from his house. Another was that there was secondary transfer of the DNA as described by Mr Bruce. His Honour accepted that this was evidence that might go to the credibility of Witness L. It was also relevant to where the weapon was located between the time of the murder and the time that Farhad Qaumi and Witness K moved it on 3 January 2014. His Honour concluded that the location of the pistol during that period was not a matter about which he needed to be satisfied to any particular standard. His Honour did not consider that this evidence logically impacted on the credibility of Witness K and his evidence of where the pistol was on 3 January 2014. His Honour concluded that choosing between the possible explanations for the DNA evidence was a matter of speculation.

The consciousness of guilt evidence

His Honour was satisfied that Farhad Qaumi deliberately denied knowledge of the weapon and the circumstances in which Witness K was arrested in his conversations with Witness J on 4 January 2014. His Honour was not prepared to use that evidence as demonstrating a consciousness of guilt in relation to the deceased’s murder. On the defence case, he was providing the weapon to Witness K at the request of Witness K. His Honour noted that it was not disputed that he was present when the pistol was picked up. The dispute was whether it was picked up from Witness L’s house or from the hiding spot nearby.
What concerned his Honour was that if Farhad Qaumi’s conduct arose from a consciousness of guilt, it might have arisen in relation to a crime different from that of the Antoun murder, e.g. his involvement in facilitating the transfer of the weapon from Witness L to Witness K. Nevertheless, the evidence of the movement of the pistol remained relevant because it provided a connection between Farhad and the murder weapon.
With those preliminary observations, his Honour set out his conclusions as follows:

“306   In coming to the following conclusions, I have considered the whole of the evidence in a global manner rather than considering the individual pieces of evidence piecemeal. I have considered the apparent logic of events, the credibility (or lack thereof) of the witnesses who gave the evidence and the alternative inferences available and contended for by both sides. I have considered the case of each accused separately although, with the exception of the consciousness of guilt evidence arising out of Farhad Qaumi’s actions on 3 January, and related conversations with Witness J on 4 January 2014, the evidence against them is essentially the same.
307   I do not accept the submission that to find the accused guilty I must be satisfied of Witness L’s evidence beyond reasonable doubt. At least, I do not accept that submission in those terms. I do accept that I must be satisfied beyond reasonable doubt of Witness L’s evidence that it was the accused who engaged him to commit the murder. I also accept that he is the only witness who gives direct evidence of that fact. However, in determining that issue I must take into account all of the evidence. Many other pieces of evidence tendered in the trial inform the question of whether that crucial part of Witness L’s evidence is to be accepted beyond reasonable doubt.
308   Having taken into account the credibility issues surrounding the evidence of Witness J, Witness K and Witness C and having scrutinized their evidence with great care and by reference to the other evidence in the case, I am satisfied that their evidence is generally truthful, accurate and reliable.
309   I am satisfied that the accused asked Witness C to drive Witness L to Strathfield on 16 December 2013 around one and half to two hours before the murder. The alternative hypothesis, that they simply asked Witness C to drive Witness L home and that Witness L seized the moment to carry out a murder that he was contracted to perform by somebody else, is not a reasonable or believable one.
310   Similarly, I am satisfied that Farhad Qaumi arranged for [redacted], Witness K, to transport the murder weapon from Orchard Hills to Granville on 3 December 2013. The evidence of Witness K provides support for Witness L’s account that he hid the weapon in bushland near his home and showed the accused its location in the days following the murder. Because it receives support from a witness whose evidence I accept, I am prepared to act on Witness L’s evidence as to what he did with the murder weapon.
311   I accept that the accused met with Witness M and Witness L at Lidcombe and again at Five Dock on 11 December 2013 and that, between those meetings, the accused travelled with Witness L and met with Les Elias. The only reasonable and logical explanation for this sequence of events is that the meeting with Elias was connected to the two meetings involving the accused, Witness M and Witness L that occurred on either side of it. I am satisfied that that the whole group left the Five dock area in Witness M’s car at around 9:29pm and did not return for around 40 minutes. There was ample time for the group to drive by the Antoun residence in Strathfield at around that time and I am satisfied that that is what they did. While Witness L could not give evidence that Witness M was present, and incorrectly recalled that the trip was made in Farhad Qaumi’s motor vehicle, both Witness M and Witness L gave evidence that the house was pointed out to them. The surveillance and telephone intercept evidence provides some support for the version provided by Witness M and there is no other plausible explanation for the meetings and events on the evening of 11 December 2013.
312   I am satisfied that the transaction involving the kebab shop for an agreed price of $190,000 with a $20,000 deposit – and probably a number of other conversations in which business dealings were discussed over the telephone by Elias and the accused – were a cover for the true purpose of the payment of at least $80,000 (and probably $100,00) before and after the murder. I draw the inference that a “deposit” of $20,000 was paid on 4-5 December 2013 and that $80,000 was paid on 19-20 December 2013. The alternative hypotheses, that the deal was genuine and/or that the Qaumi’s were “stamping” Elias for money do not fit with (i) the sale price of $25,000 in the Gumtree advertisement, (ii) the ongoing attempt by Mumtaz Qaumi to sell the shop after 5 December 2013 when the deposit was paid and Elias asserted “that shop’s mine” and (iii) the tone of most of the conversations between the parties and the surveillance evidence and CCTV footage of them meeting and socialising after the murder.
313   The evidence does not allow a clear finding as to whether Pasquale Barbaro, or others, may have stood behind Elias in this enterprise but I suspect that he did. While Barbaro did not know the Qaumi brothers well before the 16 December 2013, he seemed to be on very friendly terms with them by the end of December 2013 and early the following year. It is not necessary for the Crown to establish who stood behind the murder or what motivated those people to act as they did.
314   I am satisfied that the Crown has excluded (beyond reasonable doubt) the hypothesis that Barbaro organised the murder through Witness M who engaged Witness L to do the act. The evidence does not establish that Witness M was living “well and truly beyond her means” or had a sudden, unexplained, source of income. There is little evidence of any contact between Witness M and Witness L between the time of the Hamzy shooting and the murder of Joseph Antoun. The only evidence of contact appears to be the meetings on 11 December 2013 at which the accused were both present and which were interrupted by the need to meet with Elias about something that could not be discussed on the telephone. While there is evidence of contact between Witness M and Barbaro, the evidence does not suggest that the contact had any temporal (or other) connection with the events surrounding the Antoun shooting. There is no evidence of a connection between Barbaro and Witness L, or Barbaro and Witness C, or Barbaro and Witness K. By contrast, the accused were the leaders of a criminal gang of which Witness L, Witness C and Witness K were members.
315   Those findings, the analysis to which I have earlier referred and a consideration of the whole of the evidence lead inexorably to the conclusion that the guilt of both Farhad Qaumi and Mumtaz Qaumi on the charge of murder has been established beyond reasonable doubt.” (Footnotes omitted.)

The applicants mounted a considerable attack upon Witness M’s credibility. There is an obvious inconsistency between her and Witness L as to what happened on the night of 11 December 2013. His Honour was well aware of this inconsistency and its overall effect on the credibility of Witness M.
The events of that night are important because they bring together all the major players in relation to the murder. The applicants were present, apparently making two journeys to Strathfield. Witness L was present for both of those journeys. In between those journeys, there was a meeting with Elias the purpose of which was to identify the address of the deceased.
The resolution of this apparent conflict is relatively simple and in accordance with the findings of his Honour. Witness L did not recollect the presence of Witness M on 11 December 2013 nor travelling in her car. His evidence of a search for the deceased’s house after leaving Five Dock was accepted. That part of Witness M’s evidence concerning a trip from Five Dock on 11 December 2013 was also accepted. That is not surprising because they were describing the same event. In relation to that night, it is only Witness M’s account of the surveillance undertaken with Witness L on subsequent nights which is contradicted by the telephone records and which was unreliable and not accepted by his Honour.
Witness L was accurate about not going back to Strathfield after 11 December and before 16 December 2013. This is borne out by the telephone records. Whereas it is inconceivable that Witness L forgot a three day stake out of the deceased’s home, it is more likely that he had forgotten the presence of Witness M on 11 December 2013, particularly if she was driving and his focus was on the other persons in the car and memorising the location of the deceased’s home. It is not without significance that Witness L gave his first account of the events surrounding the murder 10 months later. It was accordingly well open to his Honour to make the findings which he did.
The differences between the evidence of Witness L and Witness M concerning the period between 11 and 16 December 2013 do not lead to a conclusion that Witness L and Witness M had been involved in surveillance of the deceased before 11 December 2013 at the instigation of someone other than the applicants. There was no evidence of that nor is it feasible that both Witness M and Witness L were mistaken or lying about what happened on that night. The location of the cars, the evidence of the surveillance police and the telephone records fit neatly with his Honour’s findings, albeit that these major players in the murder were only under observation for part of the time. Nevertheless, it was reasonably open to his Honour to draw the inferences which he did based on the facts, which he found were clearly established. It strains credulity to accept that the coming together of these key personae was accidental, or for a purpose (unascertained) which was not related to the murder.
When looking at the matters relied upon by his Honour as establishing beyond reasonable doubt the guilt of the applicants, the concession in the hearing of the appeal by Senior Counsel for Farhad Qaumi needs to be kept in mind. Early in his submissions, he said:

“I don’t anticipate that it would be submitted to your Honours on behalf of the applicant Farhad Qaumi that his Honour made any errors of primary fact finding. The submission is basically that the error came in his Honour finding that those matters excluded or established beyond reasonable doubt that the applicant Farhad Qaumi was guilty of murder.” (AT 5.12)

If as I have found it was open to his Honour to make the findings which he did concerning 11 December 2013, they provide a powerful anchor for his ultimate findings of guilt.

16 December 2013

According to Witness L, the applicants came to his house and told him that they were going to “do” the deceased that day. Witness L gave evidence that he did not want to and told them that they were under surveillance. According to Witness L, he was threatened by the applicants that he and his daughter would be shot if he did not follow their direction to shoot the deceased.
The fact that the applicants met with Witness L on that day is substantially corroborated by Witness C, albeit at a later point in time. The self-serving statement by Witness L as to his unwillingness to go through with the killing and the subsequent threats made to him was rejected by his Honour. His Honour did so because that evidence was uncorroborated and because of the suggestions made to Witness L by Witnesses I and G when they were persuading him to give evidence on behalf of the prosecution.
Significantly, there was no contact between Witness L and Witness M on 16 December 2013. There is in fact little evidence of any direct contact between Witness M and Witness L at all (11 December seems to be the only occasion). In those circumstances, it was well open to his Honour to reject the proposition that it was Witness M who had procured Witness L to kill the deceased.
According to Witness L the applicants gave him the pistol while they were in Farhad Qaumi’s car. It was wrapped in a tea towel. Witness L said he got changed and left the pistol in his house.
This evidence was challenged on the basis that the applicants would not have transported a pistol themselves for fear of being stopped by the police. The applicants submitted that common sense would have dictated a safer method of getting a firearm to Witness L. The applicants also submitted that the evidence from Witness L as to how he stored the pistol was questionable, i.e. that he placed the pistol under a bag containing clothes that weighed about 5 or 6kgs and locked the door to that room. The applicants submitted that this was a risky course of action because of the presence of his wife and three year old child in the house.
The answer to the first criticism is fairly obvious. People do not always act with common sense. Moreover, the actions of the applicants on that afternoon or evening were not particularly well planned. The lack of any firm arrangements for the transportation of Witness L to the deceased’s home is a good example. The applicants clearly had considerable difficulty in obtaining a driver and motor vehicle to fulfil that task. It is not unrealistic to suppose that they may have confronted a similar difficulty in identifying someone to transport the pistol to Witness L. It should also be remembered that the events of 3 January 2014 which involved Witness K being given the pistol support a clear connection between Farhad Qaumi and the pistol.
The challenge to Witness L’s evidence of the storage of the weapon is modest at best. Locking the door and placing the pistol under 5 or 6kgs of clothes would seem adequate, at least in the short term, to prevent access from a 3 year old child. In relation to his wife finding the pistol, given his background and the evidence that he had stored weapons in his home from time to time in the past, it is not far fetched to suggest that coming upon a pistol would not have been a particularly unusual event for Witness L’s partner.
In any event, what seems clear about the afternoon or early evening of 16 December 2013 is an element of disorganisation on the part of the applicants by their lack of preparation in not having transport readily available for Witness L and the difficulty which they experienced in obtaining a driver and vehicle for him. The number of telephone calls made to other persons, including Witness C, on that afternoon or early evening provide adequate support for that proposition. Significantly, after a number of missed calls, Witness C could not be contacted until 7:12pm.
It follows that it was well open to his Honour to accept the evidence of Witness L on these issues and in due course be satisfied beyond reasonable doubt that it was the applicants who gave him the direction to kill the deceased.

The sale of the kebab shop

The legitimacy or otherwise of the sale of Mumtaz Qaumi’s kebab shop to Elias was important. On this issue, the applicants were divided. Senior Counsel for Mumtaz Qaumi submitted that the transaction was genuine and relied upon the incongruity of paying for a contract killing by means of cheques. Senior Counsel for Farhad Qaumi accepted the Crown’s proposition that the sale was probably a sham but submitted that there was insufficient evidence to link the transfer of funds to a contract killing. He submitted that an inference that was equally open was that the whole transaction was a money laundering exercise.
There was compelling evidence that the sale of the kebab shop was a sham. The original sale price of $25,000 advertised on the Gumtree site was inconsistent with the amounts of money referred to in discussions about the transaction, i.e. between $100,000 and $190,000. It is also not without significance that at about this time the Crime Commission had shown an interest in the financial affairs of the applicants and had confiscated $100,000. The applicants may well have decided that in future they needed some paperwork to explain their various financial transactions. There is also the difficulty that when one has regard to the earnings of the kebab shop, a purchase price of between $100,000 and $190,000 was considerably in excess of the value of the business.
The submission that an equally compelling inference was that this was nothing more than a money laundering exercise fails to have regard to the prominent position of Elias in the transaction. It also fails to have adequate regard to the timing of the various payments referred to in emails and other documents. This transaction and other business dealings between the applicants and Elias, including his provision of a somewhat “dodgy” document to the Crime Commission to explain the source of the $100,000 which had been confiscated, indicate a very close relationship between him and the applicants at this time. It is against this background that their contact with Elias on the evening of 11 December of 2013 is so important.

The context of an intended reconnaissance of the deceased’s house, which was interrupted by contact with Elias and a return to the city, places Elias firmly within the planning process for the killing. This is particularly so when having met with Elias, the reconnaissance was resumed and the house of the deceased identified. The events of 11 December 2013 also strengthen the Crown case that not only was the sale of the kebab shop a sham, but it was a sham designed to transfer a substantial sum of money from Elias to the applicants. The fact that the payment was for the killing of the deceased provides an explanation for the somewhat elaborate documentation which accompanied what would normally be a straight forward transaction, i.e. the sale of business with a rather modest return.
It was the evidence of Witness C that he was told by the applicants to take Witness L to an address in Jersey Street, Strathfield. When that was challenged in cross-examination and it was suggested to him that the applicants had directed him to drive Witness L to Orchard Hills, he consistently denied that proposition. Witness C said that it was only after Witness L got into the car that he asked Witness C to drive him to Orchard Hills. If, as his Honour found, Witness C was telling the truth then there was no other explanation for the applicants telling Witness C to drive Witness L to Jersey Street, Strathfield other than to enable Witness L to kill the deceased.
It does not necessarily follow that because the applicants knew that Witness L had left the pistol at his home, they would have directed Witness C to drive to Orchard Hills first. The focus of the applicants was to have Witness L transported to Strathfield to do the killing. They may well have not concerned themselves with the detail that Witness L had left the pistol at his home. In any event, Witness C was accepted by his Honour as a witness of truth which his Honour was entitled to do. There was no glaring inconsistency in the evidence which he gave. On the contrary, his compliance with the directions of the applicants was consistent with the position of power which they held in the BFL Blacktown. Importantly, it was not suggested to Witness C that he did not drive Witness L to Strathfield and back to his home at Orchard Hills.
Although the applicants lived on the Central Coast and Orchard Hills was out of the way for them, they had previously driven Witness L home on the night of 11 December 2013. When they found that Witness C was available with a vehicle on 16 December, they did not wait for him in Kellyville but drove to meet him at Blacktown. From those simple facts it can be inferred that the applicants were very keen to involve another vehicle in the transportation of Witness L. This is against a background of them having waited in Kellyville from about 6.35pm where they made a substantial number of phone calls in order to obtain transport for Witness L. They did not actually meet with Witness C until 8:03pm at Blacktown. If the sole purpose of the phone calls had been to arrange for someone to drive Witness L to Orchard Hills, there was ample time for the applicants to have done so themselves and still driven to the Central Coast.
One of the challenges to the evidence of Witness L was that he was not telling the truth when he described how the murder weapon came into his possession. It was put to him that he had possession of the weapon at all times and that the DNA of his partner on one of the plastic bags that was wrapped around the pistol supported this proposition. If that were the fact, it is difficult to reconcile it with what happened between Farhad Qaumi and Witness K on 3 January 2014.
Witness K, whom his Honour accepted, said that he was directed to follow Farhad Qaumi in his work van. At a location (which he could not better identify) but which he described as a poorly lit street with few houses, he observed Farhad Qaumi go into nearby bush and after some time emerge with a bag which he told Witness K to place in his car. His Honour found that this evidence relating to the movement of the pistol on that date was relevant to proving a connection between Farhad Qaumi and the murder weapon. This evidence supported the evidence of Witness L as to how he acquired the pistol and established a clear connection between it and Farhad Qaumi. That Farhad Qaumi was well aware that the object which he gave to Witness K was the murder weapon emerges from the conversation that he had with Witness J shortly after Witness K’s apprehension. The coded language then used (despite the subsequent conversations) makes it clear that as of 3 January 2014 Farhad Qaumi knew of the location of the murder weapon and knew why Witness K had been stopped and arrested.
Although Mumtaz Qaumi was not involved in that incident, since he and Farhad Qaumi seemed to work closely together, one can infer that he was probably aware of where the pistol was on 3 January 2014 and of Farhad’s intentions on that night.
Motive was an important part of the defence case. The applicants submitted that they had no obvious motive to kill the deceased and identified in the cross-examination of police witnesses, a number of other people including Barbaro who did have a motive. Part of the defence case was that the Crown had failed to exclude all of these persons, and in particular Barbaro, from being involved in the murder.
It is not correct to say that no motive for the killing of the deceased was raised in the Crown case. The Crown position was that this was a contract killing and that the applicants became involved for monetary gain. It should also be noted that there were some issues in the trial which were not disputed. There was no issue that Witness L was the person who fired the pistol which killed the deceased. There was no issue that Witness C drove Witness L to and from the murder site. It also seems to have been accepted that, based on the tendency evidence, Witness L was the person of choice for the applicants when they wanted to shoot someone. On that issue, the Crown relied upon the Hamzy killing in October 2013 with which Witness L was directly involved. The Crown qualified that submission by reference to the fact that the circumstances leading to the death of Hamzy involved issues of self-defence and were quite different from the facts on this occasion.
It was also accepted that Witness L did not act alone. It was accepted at trial that he did not know the deceased and had no animus against him. It follows that if Witness L did not know the deceased and had no motive to kill him, he must have been directed by someone else to do so. Except for Witness M, and to a lesser extent Barbaro, there was no connection between any of the other nominated persons who had a motive for killing the deceased and Witness L. There was nothing before the Court to link Witness L with any of those persons including Barbaro. As already discussed, Witness L’s only contact with Witness M was on 11 December 2013. In contrast, when the motives of other persons are considered, it needs to be kept in mind that Witness L was a member of a gang whose leaders were the applicants and that he had been used by them before in the Hamzy killing. There was a clear and obvious connection between them.
The applicants’ primary submissions were that there was no evidence independent of Witness L and Witness M which unequivocally proved that the applicants had directed that the deceased be killed. That submission ignores the findings made by the trial judge which were well open to him on the evidence. Having made my own independent assessment of the whole of the evidence, and taking into account those findings, it was open to the trial judge to find beyond reasonable doubt that the applicants were guilty of the charges brought against them.
Accordingly, the orders which I propose in each appeal are:

Leave to appeal against conviction granted.

The appeal is dismissed.

WILSON J: I agree with Hoeben CJ at CL and the orders his Honour proposes.

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Decision last updated: 29 March 2019

Medium Neutral Citation:	Farhad Qaumi v R; Mumtaz Qaumi v R [2019] NSWCCA 60
Hearing dates:	4 March 2019
Decision date:	29 March 2019
Before:	Bathurst CJ at [1]; Hoeben CJ at CL at [2]; Wilson J at [229]
Decision:	In each appeal: (1) Leave to appeal against conviction granted. (2) The appeal is dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction – judge alone trial – murder – whether verdicts of guilty were unreasonable and inconsistent with the evidence – shooting murder – shooter known – whether applicants gave instructions for killing – circumstantial case – much of Crown evidence dependent on informer evidence – significant credit issues affecting informer evidence – careful analysis of evidence by trial judge – appeals dismissed.
Legislation Cited:	Criminal Appeal Act 1912 (NSW) – s 5(1)(b) Firearms Act 1996 (NSW) – s 7(1)
Cases Cited:	Filippou v The Queen [2015] HCA 29; 256 CLR 47 R v Qaumi & Qaumi (No 12) [2017] NSWSC 134
Category:	Principal judgment
Parties:	Farhad Qaumi – Applicant Mumtaz Qaumi – Applicant Regina – Respondent Crown
Representation:	Counsel: J Stratton SC/M Curry – App Farhad Qaumi Dr GD Woods QC/N Carroll – App Mumtaz Qaumi E Balodis – Respondent Crown Solicitors: Matouk Joyner Lawyers – Applicant Farhad Qaumi George Sten & Co – Applicant Mumtaz Qaumi Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2014/6809; 2014/315201; 2014/315251
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), until further order of the Court, there is to be no disclosure or publication in connexion with these proceedings of the names of witnesses A, C, E, J, K, L, M or any information likely to lead to the identification of those witnesses.
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Qaumi & Qaumi (No 12) [2017] NSWSC 134 Date of Decision: 28 February 2017 Before: Hamill J File Number(s): Farhad Qaumi – 2014/6809; 2014/315201 Mumtaz Qaumi – 2014/315251