R v Qaumi and Qaumi (No 12)

Case •

[2017] NSWSC 134

•

28 February 2017

No judgment structure available for this case.

Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: R v Qaumi & Qaumi (No 12) [2017] NSWSC 134
Hearing dates: 31 October 2016 – 8 December 2016, 1 – 14 February 2017
Date of orders: 28 February 2017
Decision date: 28 February 2017
Jurisdiction:Common Law
Before: Hamill J
Decision:

Verdicts:
Count 1:
Farhad Qaumi – guilty of murder.
Mumtaz Qaumi – guilty of murder.
Count 2:
Farhad Qaumi – guilty of possession of pistol.
Convicted on each count.
Adjourned for sentence.

Catchwords:

CRIMINAL LAW – trial by judge alone – murder – contract killing – Brothers for Life – informant witnesses – circumstantial case – where deceased had many enemies – relevance of evidence of motive in others – overpriced kebab shop – “business” – whether sham transaction – where dangerous to convict on evidence of individual informers – requirement that evidence be supported by other evidence – surveillance and telephone intercepts – connections and meetings between accused and participants – accused met with driver and shooter two hours before killing – evidence of reconnoitre of victim’s house five days before shooting – whether evidence of informants supported by surveillance evidence – where gaps in surveillance – whether supported by telephone intercepts – inferences available from evidence – timing of meetings

 

CRIMINAL LAW – EVIDENCE – snub nose 38 – movement of murder weapon after murder – whether admissible against both accused – joint criminal enterprise – co-conspirators rule – whether act done in furtherance of criminal enterprise – evidence admissible to establish connexion with murder weapon – evidence not admissible to prove consciousness of guilt

  CRIMINAL LAW – EVIDENCE – evidence that may be unreliable – hearsay evidence – where evidence favourable to accused – requirement for warning that evidence may be unreliable – warning should be tempered where evidence favourable to the accused – wall of silence – all of the hearsay – where hearsay evidence gives rise to inferences inconsistent with guilt – Crown to exclude beyond reasonable doubt
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33
Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45
Elomar & Ors v R [2014] NSWCCA 303
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
KRM v R (2001) 206 CLR 221; [2001] HCA 11
Likiardopoulos v The Queen (2013) 247 CLR 265; [2012] HCA 37
McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
Miller v The Queen Smith v The Queen; Presley v Director of Public Prosecutions (SA) [2016] HCA 30
R v AC (No 7) [2016] NSWSC 404
R v Eccles & Merritt [1881] III VLR 36
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
R v NK (No 3) [2015] NSWSC 1257
R v Qaumi & Qaumi (No 11) [2017] NSWSC 95
R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487
R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455
R v Su [1995] 129 FLR 120
R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20
RELC v The Queen (2006) 167 A Crim R 484; [2006] NSWCCA 383
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22
Texts Cited: Australian Law Reform Commission Report, 102 Uniform Evidence Law [8 February 2006]
Odgers Uniform Evidence Law (11th Edition) [2014]
Category:Principal judgment
Parties: Regina
Farhad Qaumi
Mumtaz Qaumi
Representation:

Counsel:
K McKay & P Hogan (Crown)
J Stratton SC & M Curry (F Qaumi)
P Young SC (M Qaumi)

  Solicitors:
Solicitor for the NSW DPP (Crown)
Archbold Legal (F Qaumi)
George Sten & Co (M Qaumi)
File Number(s): Farhad Qaumi – 2014/6809; 2014/315201Mumtaz Qaumi – 2014/315260
Publication restriction: Judgment containing informants’ names (copy on file) is not to be published. Judgment with pseudonyms (A – M) may be published.

Judgment

  1. On 16 December 2013, Joseph Antoun 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 has admitted his involvement and been sentenced for murder. There is a good deal of evidence establishing his involvement. There is also no doubt that Witness C drove Witness L to and from the crime scene, although Witness C claims (and the prosecution accepts) that he did not know Witness L’s purpose. He says that he believed that Witness L was simply going to drop off a package. Witness L did not know Joseph Antoun and there is no evidence that he had any reason to kill him. The question at the heart of the trial is who gave the order or contracted Witness L to murder Mr Antoun. The Crown alleges that the order came from Farhad and Mumtaz Qaumi after they accepted a contract to kill Mr Antoun from a man called Elias “Les” Elias. On arraignment, each of the accused pleaded that they are not guilty. It is for the Crown to establish their guilt beyond reasonable doubt.

  2. The Crown relies on the direct evidence of three informant witnesses who were involved in the killing and its aftermath. Those witnesses are Witness L, Witness C and Witness K (a [redacted] of the accused), who was found in possession of a 0.38 calibre Smith & Wesson snub nose revolver identified by ballistics evidence as the weapon used to shoot Mr Antoun. The Crown also called evidence from Witness M who claims she was involved in the preparation for the shooting and that the accused told her that they were responsible for the murder.

  3. The Crown also relies on a body of circumstantial evidence. There is evidence that the accused were the leaders of a group called the Blacktown Chapter of the Brothers for Life (BFL Blacktown) and that they employed violence and intimidation to ensure that the members of the group carried out their instructions. This evidence establishes a connection between the accused and Witness L, Witness C and Witness K, each of whom was a member of BFL Blacktown. The 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 includes “tendency evidence” that establishes that the accused engaged Witness L to carry out another shooting a couple of months earlier. There is also evidence proving a connection between Les Elias and the accused, including contact shortly before and after the murder and the payment of a large sum of money into Mumtaz Qaumi’s bank account. There is evidence that Farhad Qaumi was with Witness K shortly before Witness K was arrested in possession of the murder weapon. There are a number of telephone intercepts supporting this circumstantial case, including calls demonstrating the arrangements made for meetings that the Crown asserts are relevant to the murder, and calls between Farhad Qaumi and Witness J (Witness K’s brother) shortly after Witness K was arrested.

  4. From the combination of the direct evidence and the support it receives from the circumstantial case, the Crown says that the evidence establishes the guilt of the accused beyond reasonable doubt and submits that there is no other reasonable explanation for the whole of the evidence.

  5. The accused rely on alternative, innocent explanations for significant parts of the circumstantial case and on the patent unreliability of the informant witnesses. Through the cross-examination of various witnesses a number of alternative suspects have been identified – that is, others who had a motive to murder Joseph Antoun and who may have arranged for Witness L, through Witness M or otherwise, to carry out the murder. In particular, it was established that Pasquale Barbaro – who was murdered during the currency of the trial – had animosity towards Mr Antoun and extensive contact with Witness M at relevant times. The accused do not have to establish (to any relevant standard) that these alternative hypotheses are possible explanations for the evidence called in the Crown case. Rather, it is for the Crown to exclude them, along with any other reasonable explanation for Mr Antoun’s death, and to do so beyond reasonable doubt. If there is any reasonable explanation for the evidence that is inconsistent with the guilt of the accused – if the Crown does not establish guilt beyond reasonable doubt – the accused are entitled to verdicts of not guilty.

LEGAL PRINCIPLES AND WARNINGS

  1. The accused applied to be tried by Judge alone. This was opposed by the Crown. On 20 October 2016, I made a trial by Judge order under s 132 of the Criminal Procedure Act 1986 (NSW). Section 133(2) of the Criminal Procedure Act requires me to state the principles of law that I apply as well as the findings of fact upon which I rely. Section 133(3) of the Criminal Procedure Act states that where the law requires a warning to be given to a jury, I must take the warning into account in dealing with the matter. I will first set out the general principles of law that I apply and any relevant warnings. I will apply those principles to the evidence and state my factual findings in summarising the evidence and setting out my analysis and conclusions.

Presumption of Innocence

  1. Each of the accused is presumed to be innocent. Neither is required to prove their innocence. They are assumed to be innocent unless the prosecution proves that they are guilty.

Onus and Standard of Proof

  1. The legal consequence of the presumption of innocence is that the prosecution bears the onus of proof. That onus never shifts. It remains on the Crown from beginning to end. The accused bears no onus. Neither accused is required to prove anything in the trial, least of all that they are innocent of the charges. The standard of proof is beyond a reasonable doubt. Those words and that phrase have their ordinary English meaning. Suspicion, no matter how grave, is insufficient to justify a conviction. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence. The Crown is not required to prove the truth and reliability of every disputed fact or to establish everything that its important witnesses said in evidence.

What the Crown has to Prove: Essential Elements, Accessorial Liability and Joint Criminal Enterprise

Murder

  1. The essential elements of the murder charge with which the accused stand charged are:

  1. The accused caused the death of Joseph Antoun,

  2. This was by means of an intentional or voluntary act, and

  3. The act was done with an intention to kill or to inflict grievous bodily harm.

  1. There is no evidence that either of the accused did the act that caused Mr Antoun’s death. Witness L performed the act causing death. However, the accused may be criminally responsible for Witness L’s act on two possible bases, which are legally indistinguishable, at least in the circumstances of the present case. [1]

    1. “There is a real question as to whether accessorial liability and joint criminal enterprise liability are distinct in concept”: Miller v The Queen Smith v The Queen; Presley v Director of Public Prosecutions (SA) [2016] HCA 30 at [85] (Gagelar J, dissenting on the central issue in the case).

  2. First, the accused may be liable under traditional notions of accessorial or derivative liability. The Crown asserts that each accused was an accessory before the fact to the murder. To establish this, the Crown must prove beyond reasonable doubt that the particular accused encouraged, instigated, counselled or procured Witness L to commit the offence.. [2] It must also prove that Witness L committed each of the elements of the offence of murder (including the specific intention to kill or inflict grievous bodily harm).

    2. Likiardopoulos v The Queen (2013) 247 CLR 265; [2012] HCA 37 at [23]-[24], [27] and [30].

  3. Second, the Crown relies on joint criminal enterprise. To establish the crime of murder by joint criminal enterprise the Crown must prove beyond reasonable doubt that:

  1. The particular accused was party to a joint criminal enterprise,

  2. The enterprise was to murder Joseph Antoun, and

  3. Between them, the parties to the joint criminal enterprise carried out each of the elements of the offence or murder (including the specific intention).

  1. As I have said, there is no relevant distinction in the present case between accessorial liability and joint criminal enterprise. The true issue in this trial is whether the Crown has proved beyond reasonable doubt that the accused gave Witness L the order (or otherwise engaged him) to murder Joseph Antoun.

  2. No relevant defence or partial defence (such as self-defence, provocation or substantial impairment) has been raised in this case. I will not consider them further.

  3. Neither party suggests that the alternative verdict of manslaughter arises and I can see no basis upon which that alternative could legitimately arise.

Possess pistol

  1. Count 2 on the indictment charges that between 1 January 2014 and 5 January 2014 Farhad Qaumi was in possession of a pistol, namely, a 0.38 calibre snub nose revolver, not being authorised to do so by a licence or permit. The elements of this offence are:

  1. The accused possessed the 0.38 calibre snub nose revolver,

  2. The 0.38 calibre revolver was a pistol or prohibited firearm, and

  3. The accused was not authorised to possess the firearm by a licence or permit.

  1. There is no dispute that the 0.38 snub nose revolver found in the vehicle occupied by Witness K was a “pistol” under s 4 of the Firearms Act 1996 (NSW). Nor is it suggested that Farhad Qaumi was authorised to possess the pistol. The issue in relation to count 2 concerns the first element – that is, whether the Crown established beyond reasonable doubt that Farhad Qaumi possessed the pistol.

  2. “Possession” is defined in the Firearms Act as including any case in which a person knowingly:

"(a) has custody of the firearm, or

(b) has the firearm in the custody of another person, or

(c) has the firearm in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person.”[3]

3. Section 4.

  1. The Crown case is that Farhad Qaumi had physical custody of the weapon for a very brief time on 3 January 2014 and was in possession of it from the time it was hidden by Witness L until the time Witness K was arrested and the pistol located in his van. In other words, he was in possession of the pistol because he had it in the place where Witness L hid it, or he had it in the custody of Witness K. The essence of the concept of possession is control.

  2. Possession can be joint. It is not the law that only one person can be in possession of an item at any given time. If a number of people exercise control over the item, the law allows that the item can be possessed by more than one person at the same time. So, to use an example from the present case: on 3 January 2014, the pistol may have been in the joint possession of Witness K (because it was in his physical custody) and Farhad Qaumi (because he exercised control over the item and had it in the possession of Witness K).

  3. The accused’s case is that the pistol was never in Farhad Qaumi’s physical custody and he never exercised control over it when it was in the possession of Witness L (or hidden by him) or Witness K.

Separate Consideration of the Case of Each Accused

  1. The charges against each of the accused must be considered separately. [4] It is wrong to proceed on the basis that if one of the accused is guilty, they both must be guilty. Conversely, if there is a reasonable doubt in relation to the case of one of the accused, I should take that doubt into account in assessing the case against the other accused. Similarly, if I reject (or doubt) the evidence of a witness who gives evidence against one of the accused, I should take that doubt into account in assessing any evidence that the same witness gives against the other accused. [5]

    4. See for example KRM v R (2001) 206 CLR 221; [2001] HCA 11 at [36] (McHugh J), R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 at [214] (Wood CJ at CL).

    5. Cf R v Markuleski (2001) NSWLR 82; [2001] NSWCCA 290.

Drawing Inferences from Direct Evidence: Circumstantial Reasoning

  1. I am able to draw inferences from the established evidence. However in doing so, I must first be satisfied of the primary facts. I need not be satisfied of the primary facts beyond reasonable doubt. There is no particular standard of proof to be applied to the individual items of evidence. Rather, it is the combination of facts or evidence that may lead me to infer the existence of facts that are not, or cannot, be proved by direct evidence.

  2. Some intermediate facts may be so crucial to the process of reasoning that they are indispensable to the chain of reasoning leading to the inference of guilt. If there are such intermediate facts, they must be established beyond reasonable doubt. [6] The Crown submitted that there was no intermediate fact that needed to be proven beyond reasonable doubt. Neither accused submitted otherwise.

    6. Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56.

  3. When it comes to drawing the ultimate inference of guilt, I must not draw such an inference unless it is the only reasonable inference, or only reasonable hypothesis or conclusion, available on the evidence.

Consciousness of Guilt

  1. A particular species of circumstantial evidence upon which the prosecution relies is evidence of a consciousness of guilt. This is evidence that does not establish a direct admission but is relied on as an implied admission because the conduct can only be explained by the fact that the accused knows that he is guilty.

  2. There is evidence that Farhad Qaumi took steps to move the murder weapon on 3 January 2014 and then had a series of intercepted telephone conversations with Witness J following the arrest of Witness K later that evening. [7] Initially, Farhad Qaumi used code to inform Witness J that Witness K was arrested because he had a gun (“atgay”) in his car (“arcay”). Later in that call, and in two calls that followed, Farhad Qaumi asserted or implied that he did not know why Witness K had been arrested. Insofar as the evidence of using code and denying knowledge of the reason for the arrest is relied upon to establish a consciousness of guilt in Farhad Qaumi’s case, it cannot be used in the case against Mumtaz Qaumi. The evidence of the telephone calls between Farhad Qaumi and Witness J is only admissible in Farhad Qaumi’s case.

    7. Ex ZZ.

  3. The evidence that Farhad Qaumi took steps to move the weapon is admissible against both accused but cannot be used to establish a consciousness of guilt in Mumtaz Qaumi or to establish (by some form of circular reasoning) that Mumtaz Qaumi was aware that Farhad was taking those steps.

  4. By itself, evidence of a consciousness of guilt is not capable of establishing guilt. It is tendered as corroborative evidence, as part of the circumstantial case. Before using this evidence against Farhad Qaumi, I must be satisfied of two things. First, I must be satisfied that Farhad Qaumi was deliberately deceiving Witness J as to his knowledge of the arrest of Witness K. Second, I must be satisfied that the only explanation for the evidence (of the use of code and the deception as to his state of knowledge) is that Farhad Qaumi was aware that Witness K was involved in the murder of Mr Antoun.

  5. Juries are often warned to be cautious when using evidence of consciousness of guilt because it is difficult to know how or why an innocent person may act in particular circumstances. Juries are urged to consider any other possible explanation for the statement or actions of the accused that are said to demonstrate a consciousness of guilt. In the present case, before using this evidence as consciousness of guilt, a jury would be directed to consider the possibility that Farhad Qaumi’s conduct in those telephone calls may have related to his knowledge that Witness K had a gun and that he had played some part in providing it to him (which I understand to be the defence case). I take those warnings and directions into account in assessing this part of the evidence.

Joint Criminal Enterprise and the “Co-conspirator’s Rule”

  1. While the bodies of evidence against the two accused must be considered separately, the case against them is that they acted together in a joint criminal enterprise. In the case of joint criminal enterprise, each of the participants in the enterprise is held to be responsible for the acts of the other in carrying out the common purpose. [8] If there is reasonable evidence of “preconcert” (that is, evidence of an agreement or the parties acting together), evidence of the acts of one accused is admissible against the other. [9] In this case, the accused accept that there is evidence of preconcert although they either dispute it, or contest the inferences that the Crown seeks to draw from it. With one exception, there was no dispute that the actions of each of the accused are admissible against the other.

    8. See, for example, McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37.

    9. Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 at 93–94 and Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 at 6–7.

  2. The exception concerned the evidence of Farhad Qaumi taking steps to move the gun. Initially, when it was adduced on 2 December 2016, no objection was taken to this evidence being admitted against both accused. [10] On 13 February 2017, the second day of defence counsel’s address, Senior Counsel submitted that the “business about recovery of the gun” was a “discrete topic which is admissible and only to be used against Farhad.” [11] After the short morning adjournment, Senior Counsel confirmed that the whole of Witness K’s evidence was inadmissible against Mumtaz Qaumi. The Crown pressed the evidence but conceded that the question of admissibility had to be resolved before I retired to consider my verdict. [12] The question was deferred until 14 February 2017 to enable counsel to prepare for the argument. When the argument resumed, Senior Counsel conceded that the evidence was admissible against Mumtaz Qaumi. [13] That concession was correct. [14]

    10. T 908.

    11. T 1,162.

    12. T 1,173 – 1,174.

    13. T 1,215.

    14. See, for example, Ahern (supra), Tripodi (supra), Elomar & Ors v R [2014] NSWCCA 303 at [267] – [284], R v Eccles & Merritt [1881] III VLR 36 and R v Su [1995] 129 FLR 120 at 162.

  3. However, the use of the evidence was limited (essentially by agreement between the parties, but in accordance with a judgment delivered following the argument). [15] The Crown accepted that the evidence could not be used to prove that Mumtaz Qaumi had knowledge of Farhad Qaumi’s actions on 3 January 2014. Senior Counsel for Mumtaz Qaumi accepted that the evidence could be used as part of the circumstantial case and specifically:

  1. To establish a link between both accused and the murder weapon. That is, “as evidence that the weapon that Witness L alleges he showed Mumtaz Qaumi was the weapon that killed Joseph Antoun”,

  2. To prove the existence and nature of the joint criminal enterprise, and

  3. To provide some support for the disputed evidence of Witness L as to where he hid the murder weapon and the fact that he showed both accused men the location of the weapon before his arrest.

    15. R v Qaumi & Qaumi (No 11) [2017] NSWSC 95.

Hearsay Evidence

  1. Through the cross-examination of various witnesses, the accused elicited a good deal of hearsay evidence. There was a global objection to the evidence if it was to be used to prove the fact of the hearsay representation. The basis upon which this evidence was admitted varied. In some instances it was said to go to the conduct of “the investigation”. In other cases it was led to establish that a number of other people had, or may have had, a motive to kill Joseph Antoun. [16] Further, the accused relied on statements made by Mr Elias when interviewed by the police. Mr Elias denied being involved in the murder and provided an explanation for his dealings with the accused. That evidence is contrary to the Crown case that Mr Elias paid the accused to carry out a contract killing.

    16. See T 74 – 77 for objection and legal discussion as to the basis upon which the hearsay evidence was adduced in cross-examination. See also T 362 – 363.

  2. Where hearsay evidence is admitted (particularly for a hearsay purpose, that is, to prove the truth of the hearsay statement) a jury may be warned that hearsay evidence may be unreliable. [17] I must take such a warning into account in dealing with the matter by judge alone. [18] However, because the evidence is relied upon by the accused, it is appropriate to temper the warning to a degree. [19]

    17. Section 165(1)(a) of the Evidence Act 1995 (NSW).

    18. Section 133(3) of the Criminal Procedure Act 1986 (NSW).

    19. Cf R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455 at [294], [297] (Wood CJ at CL and Howie J), Odgers’ Uniform Evidence Law (11th Edition) at [1.4.2900]; see also R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 at [37] – [39] and RELC v The Queen (2006) 167 A Crim R 484; [2006] NSWCCA 383 at [80]. I did not accept Senior Counsel’s submission that there were good reasons for not giving the warning (T 1,184 – 1,185) and that submission seemed to be moderated once the decision in R v Rose was ventilated in argument (T 1,186 – 1,187).

  3. I take into account a warning that would be given to the jury that the evidence of the various hearsay statements (made by witnesses who did not give evidence) may be unreliable. I take into account that such evidence was not given in the presence of the parties, was not given under oath and was not subject to cross-examination. The extent to which it was accurately or comprehensively recorded is uncertain. Mostly, it was derived from entries on the police computer or from notes made by police officers who interviewed various people who refused to give evidence or were not otherwise called. In many instances the evidence was self-serving. It is for those reasons that the hearsay evidence may be unreliable.

  4. Having said that, evidence that Mr Elias denied involvement and evidence that there were other people with the motive and means to carry out the killing is important evidence to be considered in the context of whether the Crown has established its case against the accused beyond reasonable doubt. In each case, the Crown did not call the relevant witness to give evidence. While I must not speculate on what these people would have said if they had given evidence,[20] the accused is entitled to rely on the information gathered by police and statements made by those witnesses as recorded by the police. Where that material gives rise to alternative scenarios inconsistent with the guilt of the accused, it is for the Crown to exclude those possibilities beyond reasonable doubt. However, the out of court statements of people such as Elias, Barbaro and others denying involvement is self-serving evidence worthy of very little weight.

    20. See for example Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45 at [6], [15] (Gaudron & Hayne JJ).

Witnesses and Fact Finding

  1. I am entitled to accept part of a witness’ evidence and reject other parts. I have watched the witnesses closely and considered both what they say and their demeanour. I am conscious of the “scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]. Rather than relying on demeanour, it is important to look to objectively established facts, contemporaneous materials and the apparent logic of events.

Witnesses Whose Evidence may be Unreliable

  1. The only direct evidence of the accuseds’ involvement in the murder of Mr Antoun comes from a number of witnesses whose evidence may be unreliable. These witnesses were criminally concerned in the crimes or are analogous to prison informers. Each has received a substantial reduction in their sentence or received other benefits (for example, they were not charged), as a result of their co-operation with the police or their offering to give evidence against the accused. In each case they have a powerful motive to give evidence favourable to the prosecution. I must take into account the warnings that a jury would receive as to the potential unreliability of this evidence. The evidence of each of the following witness must be assessed in the light of the fact that the law recognises that it may be unreliable.

  2. Witness L was criminally concerned in the murder. He has a motive to minimise his own involvement and to blame others. For example, he falsely asserted that he had no intention to kill in spite of the post mortem and ballistics evidence establishing that he fired four or five shots into the chest region of his victim at close range. There is evidence that witnesses I and G persuaded him to give evidence favourable to the prosecution and specifically to provide information that implicated the Qaumi brothers. He was told in clear and colourful terms that the police were mainly interested in obtaining evidence against Farhad Qaumi. He received a total discount of 60% for his plea of guilty and assistance and this included a 20% reduction in his sentence for his promised future assistance. Witness L has a criminal history of violence and was involved (as a shooter) in the murder of Mahmoud Hamzy a few weeks prior to the Antoun killing.

  3. Witness M (on her account) was also criminally concerned in the murder of Joseph Antoun. She claims to have been told about the contract and carried out some surveillance of the Antoun residence in the days leading up to the murder. There is no evidence capable of supporting this version of events. In fact, the telephone records and Witness L’s evidence do not support it and tend to undermine Witness M’s version of events. If this part of her account is false, the balance of her evidence must be treated with extreme scepticism. She was not charged with her involvement in the Antoun killing and received a large discount (50% including her plea of guilty) from the sentence in relation to the Hamzy murder and other criminal activity. The charges she faced were reduced significantly as a result of her belated co-operation with the prosecution. She was motivated out of self-interest rather than any genuine desire to assist authorities or to right a wrong. She demonstrated a strong animosity towards the accused and has a number of strong motives to give evidence against them. She has previously given false evidence under oath.

  4. Witness C was criminally involved in the murder of Joseph Antoun as the driver, although he claims, and was sentenced on the basis, that he did not know that the plot was to involve a killing. He received a reduction in his sentence for his offer to give evidence and, like the other informants, has a strong motive to give evidence favourable to the prosecution.

  5. Witness K was also criminally involved in the offence. On the prosecution case, he attempted to assist the accused in disposing of the murder weapon. On the undisputed evidence, he was in possession of the murder weapon a short time after the murder was committed. He has a motive to blame the Qaumis for his involvement and has received a reduction in sentence as a result of doing so.

  6. Witness J was concerned in a variety of criminal activities although not directly involved in the murder of Joseph Antoun. He received favourable treatment in terms of the charges he faced and a reduction in his sentence as a result of offering to give evidence against the accused. This provides a strong motivation for Witness J to give a false account implicating the Qaumi brothers.

  7. Witness A provided information to police in circumstances where he has never been charged in spite of being in possession of drugs and guns. He received an undertaking from the Attorney General that his evidence would not be used against him. He was involved in the criminal activities of the BFL and was in possession of a bag containing guns and drugs which he surrendered to the police. He was not charged with any offence arising from his possession of those items, although the offences carry substantial maximum penalties and standard non-parole periods. As a result, like the other informers, he has a clear motive to implicate the accused and to give evidence favourable to the prosecution.

  8. Witness E was criminally involved in one offence committed by the BFL Blacktown although he was not a member of the group and was not involved in the Antoun murder. He received a reduction in his sentence for his co-operation with law enforcement authorities. He has a motive to give evidence implicating the accused. A jury would be warned that his evidence falls into a category that the law recognises may be unreliable.

  9. All of these witnesses are “informants” although none of them is a “prison informer”. [21] However, the label is not important. What is important is that the law recognises that each witness falls into a category that the law recognises may be unreliable. A jury would receive a strong warning in relation to evidence given by each of these witnesses and I take that warning into account in assessing their evidence. Further, the witnesses were criminally involved in the events in relation to which they gave evidence. In some instances, they were involved in the events giving rise to the proceedings. [22] Once again, the law recognises the potential danger and unreliability of evidence given by such witnesses. A jury would receive strong warnings and I take those warnings into account in assessing this body of evidence and the testimony of each of the witnesses.

    21. Cf Evidence Act, s 165(1)(e).

    22. Cf Evidence Act, s 165(1)(d).

  10. Some of the witnesses gave evidence of admissions that they allege were made by one or other, or both, of the accused,[23] or attribute words to the accused that are disputed. Such evidence, particularly when given by witnesses such as these, is notoriously unreliable. It is not properly recorded. It is easy to fabricate and difficult to refute. It relies entirely on the say so of witnesses who are motivated to assist the prosecution. A jury would be warned accordingly and I treat the evidence of admissions with extreme caution in accordance with such warnings.

    23. Evidence Act, s 165(1)(a)

  11. In the case of each of these witnesses, I take the approach that it would be dangerous to convict the accused on their evidence alone. I will not act on the evidence unless it receives support from other evidence in the case. Where that support only comes from other informant witnesses, I remain sceptical because of the risk of contamination of their evidence. That contamination might arise through joint concoction or because of the knowledge that the witness has of what other witnesses have said or their knowledge of the police brief. Before I act on the evidence of any of these witnesses, I will look for independent, objective support in the Crown’s circumstantial case.

  12. None of what I have said means that the evidence of any particular witness is in fact unreliable in this case. It means only that before acting upon the evidence of such witnesses I must examine it closely, exercise caution and look for independent corroboration of what they have said.

Prejudicial Evidence, Evidence of Bad Character and Tendency Evidence

  1. There is a body of evidence that demonstrates that the accused were involved in criminal activity in the time leading up to Mr Antoun’s murder and before their arrest. This includes gang related activity, drug dealing, possession of guns (or attempts to retrieve guns in the possession of a fellow gang member) and acts of violence. There is also evidence of their involvement in the shooting of Mahmoud Hamzy and another man at Revesby Heights on 29 October 2013. That shooting resulted in the death of Mahmoud Hamzy.

  2. It is important not to reason that the accused are more likely to be (or are) guilty of the murder of Joseph Antoun because they may be people of bad character or otherwise involved in criminal activity. For the most part, the evidence of other criminal activity was adduced to place the events into their true context and to explain the behaviour of the witnesses. In some instances, it is relied on by the defence to establish alternative reasons for meetings that the Crown says were connected to the Antoun murder.

  3. In respect of the Hamzy shooting, the Crown relies on the evidence as tendency evidence. However, the Crown relies on a very specific tendency, namely, a tendency to engage Witness L to perform shootings on their behalf. The use of the evidence must be limited in that way. Placing the label “tendency evidence” on this material is not particularly helpful, although I held, over objection, that it was admissible under ss 97 and 101 of the Evidence Act 1995 (NSW). [24] The evidence is admitted as part of the Crown’s circumstantial case and is relied upon to support the inference that it was the accused, not somebody else, who engaged Witness L to shoot Joseph Antoun. Its probative force lies in the fact that the accused engaged Witness L to carry out a shooting some weeks earlier, albeit in different circumstances.

    24. R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487.

  4. The evidence cannot be used to reason that because the accused were involved in an earlier shooting, they are therefore more likely to have murdered Joseph Antoun. Nor can it be used to attribute to the accused a “rank propensity” or “mere tendency” to commit acts of violence or be involved in criminal activity involving the use of guns. As I have said, while it was tendered and admitted as “tendency” evidence, it is ultimately just one piece of the Crown’s circumstantial case and its attempt to bolster the credibility of its informant witnesses.

Prejudicial Material Not in Evidence

  1. I am aware of a large amount of prejudicial material that is not in evidence in the trial. This includes evidence led in the jury trial relating to the Hamzy killing and other shooting incidents. It also includes material received on the voir dire and excluded from that trial. There is also material received on the voir dire in the present trial or subject to various applications by the accused, police and NSW Crime Commission. I have also received evidence and made a number of factual findings in the course of sentencing Witness L and Witness M. [25] The case, and other events and characters surrounding the case, has been subject to a large amount of media interest and reporting. There have also been a number of incidents in the courtroom, some involving violence and others where there was interaction with witnesses, and the suggestion or allegation of implied threats to witnesses or attempts to influence witnesses.

    25. R v NK (No 3) [2015] NSWSC 1257; R v AC (No 7) [2016] NSWSC 404.

  2. I have disregarded all of this material in reaching my decision. The decision I have made is the result of a consideration and analysis of the evidence admitted in the trial. In particular:

  • None of the material received into evidence or rejected in the Hamzy trial has played a part in my factual determinations in the present proceedings.

  • I have put out of my mind any evidence rejected in the course of the present trial and the material produced by the Crime Commission or NSW Police and inspected in the course of both trials.

  • As to the evidence and findings in the sentencing proceedings; again I have disregarded that evidence and note that the findings made in those proceedings were made on the basis of different evidence and, often, without the benefit of any true contradictor or substantial testing of self-serving assertions made by the offenders.

  • The incidents that occurred in court were not relevant in any way to the determinations that I need to make in the trial. Each was explicable by the stress and pressure of the proceedings which have continued, in total, for a period in excess of a full calendar year.

  • As to the media reporting, while I am generally aware of it, I have not read, viewed or studied it in any detail and it has played no part in my consideration of the evidence.

The Silence of the Accused

  1. The accused did not give evidence in the trial. Nor did they volunteer any information to the police. [26] The accused have a right to silence. Their silence cannot be used to fill in gaps that otherwise exist in the prosecution case and no inference can be drawn against them because they have not provided an explanation for the circumstantial case or refuted the evidence of the informant witnesses. Such an approach would be “incompatible with the presumption of innocence, and the right of the accused neither to give, nor to call evidence at trial”. [27]

    26. There is evidence that they were not offered the opportunity to be interviewed.

    27. Dyers v The Queen at [121] (Callinan J).

Motive

  1. There is no evidence of any animosity between the victim and the two accused men. In fact, there is no evidence of any connection between them at all. The accused rely on this absence of evidence to submit that there is no established motive in the accused to carry out the murder. Further, they point to a body of evidence establishing that Joseph Antoun had a number of enemies including people who had threatened to kill him and those who had the means and connections to kill him. None of those people have given evidence and one of them (Pasquale Barbaro) was murdered during the currency of the trial.

  2. The prosecution does not have to establish a motive in the accused to commit the crime with which they are charged. [28] However, the existence of a motive in the accused may have a capacity to strengthen the prosecution case. [29] Equally, an absence of motive “is commonly relied upon as a circumstance tending in favour of ... a person accused of a crime."[30] However, there is a distinction between the “absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other.”[31]

    28. De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33 at [28] – [30].

    29. De Gruchy at [28] citing R v Ball [1911] AC 47 at 68.

    30. De Gruchy at [28] citing Plomp v The Queen (1963) 110 CLR 234 at 250; [1963] HCA 44.

    31. De Gruchy at [29] citing Ellwood [2009] EWCA Crim 2575; (1908) 1 Cr App R 181; Phipson, Best on Evidence, 12th ed (1922) §453 at 385; Best, Presumptions of Law and Fact, (1981) §232 at 182.

  3. It is obvious that, as a matter of fact and logic, the existence of motive in people other than the accused will make the prosecution’s job of proving the offence beyond a reasonable doubt more difficult.

  4. While the accused point to the evidence that shows that others had a motive to kill Joseph Antoun, the Crown submits that there is an established motive in the accused to commit the murder. The prosecution case is that the murder was a contract killing and that the accused were promised and received a large sum of money to organise the assassination. In other words, the prosecution case is that there is evidence to support an established motive in the accused, namely receipt of money to organise the killing. The Prosecution also relies on evidence suggesting the accused wanted to have a business relationship with Elias who was a competitor of Joseph Antoun.

THE EVIDENCE

  1. After ventilation of pre-trial issues, the trial commenced on Monday 31 October 2016 and the first witnesses gave evidence on that date. The trial commenced during the course of the deliberations of the jury in a trial involving Farhad and Mumtaz Qaumi and three other men. The evidence was interrupted from time to time to attend to the jury, to respond to its questions and to take its verdicts. The evidence continued until Wednesday 7 December 2016 when the prosecution closed its case and each of the accused indicated that no evidence would be called beyond that which was adduced through the Crown witnesses.

  2. The prosecution called 39 witnesses and tendered 75 exhibits (marked Ex A – ZZZ). Between them the accused tendered 48 exhibits (marked Ex 1 – 48). I have taken into account all of the evidence in reaching my verdicts. It is unnecessary to recount the whole of the evidence in the body of this judgment. A great deal of the evidence is not in dispute although there is controversy around the inferences that should be drawn from the evidence.

  3. There is no dispute that Witness L carried out the shooting and that Witness C drove him to and away from the scene of the crime. There is no dispute that Witness L acted with a murderous intent although he claimed that he did not intend to kill Mr Antoun. Based on the number of shots fired and the direction in which they were fired (to the upper body of the victim), I reject that part of his evidence. I am satisfied beyond a reasonable doubt that Witness L shot Mr Antoun with the specific intention to kill him. In any event, at the very least he acted with an intention to inflict really serious injury (grievous bodily harm). There is no dispute that Mr Antoun’s death was caused by the act of Witness L. Similarly, there is no dispute that the murder weapon was the 0.38 calibre snub nose revolver located in the vehicle driven by Witness K on 3 January 2014.

  4. The accused do not dispute that they were associated with Witness L, Witness C and Witness K through their membership of the BFL Blacktown. They do not dispute that they had a number of meetings and conversations with Witness L, Witness M and Les Elias before and after the shooting of Mr Antoun. There is no dispute that Elias made a payment of $80,000 into the bank account of Mumtaz Qaumi on 20 December 2013 and that the accused had use of a Lamborghini motor car, the property of Pasquale Barbaro and/or Les Elias. There is no dispute that on 3 January 2014, the accused (Farhad Qaumi) attended the vicinity of the home of Witness L, met with Witness K and was driving near to Witness K shortly before his car was pulled over and searched (resulting in the location of the murder weapon). There is no dispute that early the following morning Farhad Qaumi had a conversation with Witness J in which he spoke about the possibility that Witness K had been arrested over possession of firearms, albeit that part of the conversation was in a code described as “pig Latin”.

  5. Much of these undisputed facts of conversations, transactions, meetings and people’s locations at various times, are established by surveillance evidence, closed circuit television (CCTV) recordings, telephone intercepts and other official records.

  6. The accused do not dispute many of the primary facts upon which the prosecution’s circumstantial case is based. Rather, the dispute is about the inferences that can safely or properly be drawn from those facts. For example, the $80,000 deposit is explained by reference to other business dealings between the Qaumi brothers and Elias; the meetings with fellow BFL members and associates are explained by other activities of the group.

  7. The summary that follows is an overview, generally in the order in which the evidence was called at the trial. It does not purport to deal with or summarise all of the evidence even though the decisions that I have reached are based on the whole of the evidence. The categories of witness and evidence are as follows:

  1. Joseph Antoun’s family and neighbours.

  2. The crime scene and autopsy findings.

  3. The murder weapon.

  4. Surveillance police, the officers in charge of the investigation and telephone records.

  5. The informant witnesses.

The Family and Neighbours of Joseph Antoun

  1. Teagan Mullens [32] was the partner of Joseph Antoun having met him eight years before his death. The couple had two children, twin girls aged six years. She said that she was aware that Mr Antoun had spent some time in gaol and that he was “involved in the construction industry.” As to the precise nature of his work, her evidence was uncertain. She said “he didn’t discuss much of his business stuff with me.”

    32. T 32 – 52.

  2. Elias “Les” Elias was a business partner of Mr Antoun. They worked together and at one stage lived together. However, they parted “on bad terms” and “we were left with nothing”. This occurred at around the time she was pregnant with her twins, that is, six years before the murder. However, she said that “the Les Elias situation never really went away. It was always up in the air.” A man called George Alex had been Mr Antoun’s “business partner or colleague” for some time prior to his death. As to the nature of their association and business, she did not know much at the time but, since the murder, had learned more. She said “I was just a mum, didn’t know much at all”. She believed that they were involved in the “construction industry, being scaffolding and labour hire.” Ms Mullens said that Elias had a scaffolding yard in the same area (“next door”) and that both her husband and Elias were trying to buy the same scaffolding. The details of this were sketchy and based on what Ms Mullens had been told. At some stage, there was a $500,000 deposit into Ms Mullens’ bank account. Ms Mullens didn’t know where the money came from and Mr Antoun told her it was “for business purposes” and the money was soon dispersed.

  3. Ms Mullens gave evidence of Mr Antoun’s daily routine including his use of methadone. At the time of his death he was attending a methadone clinic in Newtown which he would attend daily at 6:00am before going to work. His routine was to come home each night to put the children to bed.

  4. On Monday, 16 December 2013 Mr Antoun left the house at 6:00am and the next time Ms Mullens saw him was around 9:00pm when he got home. He was late and immediately went to put his daughters to bed. Ms Mullens heard the door-bell and met Mr Antoun in the hallway (or kitchen area) where there was a monitor for the CCTV cameras that were installed at the front of the house. She asked if he was expecting anybody and went to the small window near the front door to see who was there. There was a person standing at the door with their arms across their chest. She pulled the curtain back and realised that she didn’t recognise the person at the door. She asked who was there and the man said it was “Adam with a package for Joe”. Adam (also known as Abuza Sultani or “Abs”) was a friend who had dropped Mr Antoun home “10 minutes before”. However, Ms Mullens did not recognise the person at the door – it was not Adam.

  5. Ms Mullens realised too late what was happening. Mr Antoun opened the door. The person outside looked shocked and began shooting. She saw the shooter’s face under a hooded jumper. She saw the shooter run from the house. Mr Antoun was holding his chest and fell forward. His face was bloody and he was lying in a pool of blood. Ms Mullens called Triple 0 while attempting to comfort Mr Antoun and stop the children from coming in to the front area of the house. The children had woken up by this point but remained in the master bedroom.

  6. Under cross-examination by Mr Stratton SC, Ms Mullens agreed that her late husband had been charged with “extortion” and had been in and out of gaol over the past 30 years. Since his death, she had heard that he was involved in “debt collection”. She gave vague evidence about his relationship and a dispute with a Cunyet Kilicoglu but did not know whether her husband had organised for Kilicoglu to be shot about a week before his death. She was aware of a dispute over wine with Pasquale Barbaro and was told after the murder (of her husband) that Barbaro had threatened to kill Mr Antoun. She was aware of a “punch up” between Mr Antoun and a person called Big Willy Tofilau about “six months before he died” (as it was put) although she was not clear on the timing. She agreed that Mr Antoun obtained a vehicle from a Jim Byrnes, that the latter was a “well-known Sydney standover man” and read in the newspaper that Byrnes called Burwood police to say that he was not responsible for the murder. She agreed there was a dispute with a man called Angelo Russo and that Russo had stolen millions of dollars from the family business. She had little knowledge of a man called Boskovski who was “shot dead” in July 2013 at Earlwood and she knew nothing of a dispute between her late husband and the Comanchero Motorcycle Club over a large sum of money.

  7. Mr Young SC cross-examined Ms Mullens about the man Adam or Abs and his change of name. After Mr Antoun died she heard that Abs was involved in the Rebels motorcycle gang. Mr Young established that it was Mr Elias who owed money to Mr Antoun and not the other way around. Ms Mullens confirmed that she and Mr Antoun had known Les Elias since about 6 years prior to the murder and lived with him for some time. When the relationship broke down the Sheriff knocked on the door and told Ms Mullens and Mr Antoun that they had to move out. Ms Mullens said that Les Elias stole a large amount of money from them but they had not attempted to get the money back legally.

  8. Two of Mr Antoun’s four brothers gave evidence.

  9. Nemer Antoun [33] (Nemer) gave evidence that Joseph worked in the construction industry, labour hire and traffic control businesses. He said there was a falling out between his brother and Les Elias around five or six years before the murder. He gave evidence of Joseph Antoun’s involvement in a business called Elite Scaffolding and his own involvement with Active Labour, a company owned by the sister of George Alex, which supplied workers for Joe’s business. He described a conflict with people he named as Jim Byrnes, Angelo Russo and Kevin McHugh. He also referred to Les Elias as being part of the business conflict. He said “the people behind it are still on the loose, they’re having coffees overseas and laughing at us.” He said that Les Elias and Jim Byrnes “worked against us” and were the “ringleaders”. The evidence in chief lacked precision and was difficult to follow.

    33. T 54 – 81.

  10. In cross-examination, Nemer gave evidence of disputes that Joe had with others with whom he was in business or competition and agreed that he had written a letter to the DPP saying:

“Joe was murdered because he would not have allowed them to get away with stealing our family assets. The group involved Les, Jim and Angleo plus others that would sit at the meetings in Les’s office. The Qaumi brothers will be charged for ordering the murder … however there is no connection between Joe and the Brothers For Life. It’s Joe’s business partners who have paid to have him murdered.”

  1. Nemer said that Jim Byrnes and Angelo Russo stole millions of dollars from the (Antoun) family and reneged on a deal to repay the money. He said that Joe confronted Russo about this a short time before the murder. [34] He denied knowledge of rumours that Jim Byrnes blamed Joe Antoun for vandalising cars and assaulting his staff or that Joe had a dispute with the Comanchero Motorcycle Club. However, he knew that Joe had been blamed for a “drive by” shooting at Jim Byrnes home.

    34. The precise timing was difficult to elicit: T 64 – 65.

  2. He was also asked about associations between Joe Antoun and Michael Cohen (who he did not know as Odisho), Doug Westerway (an ex-policeman who was employed “to organise our business”) and a number of others. He agreed that Joe Antoun had punched Westerway for insulting Joe’s wife. He gave evidence of a phone call in which his brother told him to be careful and to tell Joe if he received calls from the group including “Jay or Jimmy, Doug Westerway and Michael Cohen.” He was also asked about evidence given at the Royal Commission into the building industry and about “weekly kickbacks of $2,500” being paid by Westaway (on behalf of Mr Alex and presumably Joe) to the CFMEU. He was questioned about Karen Nettleton, Khaled Sharrouf and Bill Fatrouni. He denied the suggestion that his brother was a stand-over man for George Alex.

  3. Nemer was emotional while giving evidence. This was understandable in the circumstances. While he was clearly motivated to defend his brother and his evidence at times was vague, he presented as a witness doing his best to tell the truth.

  4. Antoine Antoun said that he was not involved in Joseph’s business but was able to give evidence of some of his brother’s dealings and associations. He confirmed the relationships with George Alex, Michael Cohen, Jay (an “ex-police officer of Turkish background”), Doug [Westerway] and Les Elias. He said that “Les took all our money”. He said that Joe Antoun told him that Pasquale Barbaro wanted to kill Joe and that he had tried to kill him before but the children had got in the way. He gave evidence of what Ms Mullens told him on the night of the murder – “Someone turned up at the front of the house. I told Joe not to answer it but he did and he got shot through the front door.” In cross-examination, he was unable to confirm or deny suggestions about kickbacks to the CFMEU and other matters. He denied the suggestion that his brother was a debt enforcer. He confirmed that Joe told him that Pasquale Barbaro had tried to kill him and that this happened a month or so before the murder.

  5. Kevin Jin [35] lived next door to the Antoun family. He heard about five loud gunshots at around 9:36pm. He said there was a half second space between the shots. He and his father went out into the street and heard a woman yelling “don’t die on me”. He spoke to police on their arrival at the scene.

    35. T 98 – 100.

First Response, Crime Scene Evidence, Findings on Post-Mortem Examination

  1. Amongst the first police on the scene were Constable Blake Wood [36] and Sergeant Samantha Kelley. [37] Each gave evidence of their observations and how they dealt with the immediate aftermath of the shooting. Stewart Clarke [38] is an intensive care paramedic who arrived at the scene at around 9:40pm. He saw others working on the patient and trying to revive him. After examining Mr Antoun, he “pronounced the patient deceased”.

    36. T 87 – 89.

    37. T 83 – 86.

    38. T 90 – 92.

  2. Dr Rianie Van Vuuren [39] performed a post mortem examination on the deceased and gave expert evidence of her findings. Joe Antoun died of multiple gunshot wounds. She described four entrance wounds. These were in the left upper arm, the left upper chest (2), and the right elbow. There was a “re-entrance” gunshot wound on the right upper chest. She was asked about the distance from which the shots were fired. She described it as “intermediate” which, depending on the gun, was “on average” “further than about a metre”. In the course of her examination she recovered four projectiles. These were provided to police and were later subject to ballistics examination. Detective Deon Kelly [40] was present during the autopsy and took possession of a number of exhibits including the four bullets or projectiles recovered from Joseph Antoun’s body.

    39. T 101 – 106; Ex H.

    40. T 122 – 124.

  3. Senior Constable Ellen Konza [41] is a crime scene officer who examined the scene of the shooting and, later, examined a Lexus motor vehicle and some burnt clothing. She took a number of photographs [42] and recovered discs containing CCTV footage from the front of the house. [43] The actions of the shooter are recorded in the CCTV footage but their face cannot be identified. She noted damage to the front door and a cupboard inside the house that was generally behind where Mr Antoun was standing when he was shot. She recovered a “single bullet” from within the damaged cupboard.

    41. T 13 – 31; Ex A – E.

    42. Ex B.

    43. Ex C.

  4. None of this evidence was in dispute or subject to any significant cross-examination. It is clear from this evidence that Mr Antoun was shot from relatively close range when he opened the front door of his home to a stranger. The significance of the evidence in terms of the issues in the present trial is twofold. First, it establishes the intention of the shooter (to kill or to inflict really serious injury) beyond reasonable doubt. Second, the projectiles recovered from the deceased and the crime scene were forensically examined and led to the identification of the murder weapon.

  1. On 4 January 2014 Farhad Qaumi had a series of calls with Witness J in which initially he referred (in code) to Witness K being arrested with a gun in his car and later said he was not aware of why Witness K was arrested.

The BFL Blacktown

  1. I accept the submission of Senior Counsel for Farhad Qaumi that the evidence of actual violence within the Bankstown BFL was not extensive. However, I accept the evidence of those members who gave evidence that violence was employed from time to time when members did not follow directions. A critical piece of evidence, that I accept, is the evidence of Witness J that Farhad told him that he put fear in the hearts of the members so that they would obey him.

  2. However, I find this evidence of very little moment in the overall scheme of things. In particular, I need not be satisfied that Witness L acted out of fear, or was threatened. Given that his evidence of the threat to kill him and his daughter is not corroborated, I am not inclined to act on it. He also gave evidence of being offered part of the proceeds of the crime and this evidence receives some support from Witness M [210] and fits with his attempts to meet with the accused in the days following the murder.

    210. T 582.

The DNA on the Bag Containing the Murder Weapon.

  1. The evidence that matched DNA found on one of the internal bags in the package containing the gun with that of Witness L’s de facto or girlfriend is capable of undermining Witness L’s credibility. On his account, the plastic bags were given to him by the accused when they were at the location where the gun was hidden. That is, the bags were not in his house and there was no way that his partner could have touched them. There are a variety of possible explanations for this. One is that Witness L was lying and that he packaged the gun using bags from his house. Another is that there was secondary transfer of the DNA as described by Mr Bruce. This is evidence that might go to the credibility of Witness L. It is 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. However, the location of the gun during that period is not a matter of which I need to be satisfied to any particular standard. Nor does this evidence logically impact on the credibility of Witness K and his evidence of where the gun was on 3 January 2014. Ultimately, choosing between the possible explanations for the DNA evidence is a matter of speculation.

The Consciousness of Guilt Evidence

  1. I am satisfied that Farhad Qaumi deliberately and falsely denied knowledge of the weapon and the circumstances in which Witness K was arrested in his conversations with Witness J on the 4 January 2014. However, I have not used that evidence as demonstrating a consciousness of guilt in relation to the Antoun murder. The defence case is that he was providing the weapon to Witness K on the latter’s request. In any event, it is not disputed that he was present when the gun was picked up. The dispute is whether it was picked up from Witness L’s house or from the hiding spot nearby. If Farhad Qaumi’s conduct arose from a consciousness of guilt, it may have arisen in relation to a crime other than the Antoun murder (namely his involvement in facilitating the transfer of the weapon from Witness L to Witness K). The evidence of the movement of the gun remains relevant as proving a connection between the accused and the murder weapon but it would be dangerous to use it as evidence of a consciousness of guilt in respect of the crimes charged in the indictment.

Conclusions

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. I am satisfied that the transaction involving the kebab shop for an agreed price of $190,000 with a $20,000 deposit [211] – 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.

    211. Ex RR , p 10.

  8. 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.

  9. 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.

  10. 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.

  11. Similarly, the guilt of Farhad Qaumi is established beyond reasonable doubt in relation to the charge of possessing a pistol.

VERDICTS AND ORDERS

  1. I find Farhad Qaumi guilty of the murder of Joseph Antoun at Strathfield on 16 December 2013.

  2. I find Mumtaz Qaumi guilty of the murder of Joseph Antoun at Strathfield on 16 December 2013.

  3. I find Farhad Qaumi guilty of possessing a pistol, namely a 0.38 calibre snub nose revolver when not authorised to do so by licence or permit.

  4. Both accused are convicted formally of those offences.

  5. The matter will be listed for a sentencing hearing on 3, 6 and 7 April 2017, along with Jamil Qaumi and the matters in relation to which the two accused were found guilty by a jury on 11 November 2016.

**********

Endnotes

Amendments

03 March 2017 - Typographical errors and further redactions made 3.3.2017

06 March 2017 - Typographical errors

Decision last updated: 06 March 2017

Most Recent Citation
Cases Citing This Decision

8

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Cases Cited

28

Statutory Material Cited

3

Miller v The Queen [2016] HCA 30
Likiardopoulos v The Queen [2012] HCA 37
Likiardopoulos v The Queen [2012] HCA 37