R v Qaumi (No 25)

[2016] NSWSC 514

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 25) [2016] NSWSC 514
Hearing dates:	26 April 2016
Date of orders:	26 April 2016
Decision date:	28 April 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Application for discharge of the jury refused.
Catchwords:	CRIMINAL LAW – application for discharge of jury by four of five accused – publication of newspaper article concerning alleged victim of shooting incident – where article followed a television program in which victim and his mother were interviewed – both interviewees witnesses in current trial – where article unrelated to current proceedings – where article failed to distinguish between chapters of Brothers for Life – presentation of alleged victim – uninspiring performance – self-aggrandising gangster figure – buffoon – conduct of jury demonstrates obedience to directions – repeated directions to decide case on the evidence – no real risk that jury will be influenced – appropriate directions – application refused.
Cases Cited:	R v Qaumi & Ors (No 21) [2016] NSWSC 402
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammed Zarshoy Mohammed Kalal
Representation:	Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) N Carroll(J Quami) R Driels (Zarshoy) G Clarke (Kalal)   Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (Kalal)
File Number(s):	Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication restriction:	No publication until the conclusion of the trial.

Judgment

1. On Tuesday 26 April 2016, four of the five accused currently standing trial made an application that the jury be discharged as a result of two media items which relate in general terms to a group described as the “Brothers for Life”.

2. The applications were made by Senior Counsel and Counsel appearing for Farhad Qaumi, Mumtaz Qaumi, Jamil Qaumi and Mohammed Kalal. The fifth accused, Mohammed Zarshoy, did not make an application for the jury to be discharged. Having heard the submissions from all counsel and having considered the details of the media publications I declined the application for discharge of the jury. When the jurors returned to the courtroom, I gave them further directions in relation to the approach that they should take to information, either media driven or otherwise, that comes to their attention during the course of the trial. At the commencement of the trial, I told the jury that there may be publicity surrounding the case itself or the events giving rise to the case and directed the jury that to be true to their oath or affirmation they must ignore such information and decide the case only on the evidence.

3. These are my brief reasons for concluding that the jury should not be discharged.

4. The first media report concerned a television program known as the 7.30 Report and a segment televised on 21 April 2016. Counsel provided a DVD which contained the item in audio and visual format as well as a transcript of the report and an associated item which was published on the ABC’s website. The matter was brought to my attention on 22 April 2016. At that time, no counsel sought to have the jury discharged and the material was marked for identification (MFI 33). However, when the present application for discharge of the jury was made, part of the argument concerned the cumulative effect of the two publications taken together and, accordingly, the DVD, transcript and associated website article were marked as exhibit 30 on the voir dire.

5. It was not surprising that the 7.30 Report item did not provoke an application for a discharge of the jury on the part of any of the accused, even though the item referred specifically to the shooting of a man called Michael Odisho, the incident which gives rise to counts 4 to 6 on the indictment. Further, both Mr Odisho himself and his mother were interviewed in the course of the programme. His mother has already given evidence before the jury and Michael Odisho is expected to be called as a witness in the Crown case.

6. The absence of an application for discharge of the jury was unsurprising because Mr Odisho presented as a particularly unsympathetic character. Indeed, with respect to him, he came across as something of a buffoon and a self-aggrandising gangster figure. For example, he tells the interviewer and viewing public: “Me, I’m a very nice bloke. Every single girl in Australia loves me. The whole community loves me, so. But then again, if you go Google and check me out, you’ll think, ‘Far out, this guy’s a monster!’” Asked about one of his tattoos he said “We trust in God, but just in case, keep one loaded” and confirmed that he was referring to a gun. Later he said “if you got into, like, a drama you’ve got to be strapped up” but in the next breath said “Nah. Never seen a gun.” Later he told any viewer who was still watching the show, “If some dogs gonna come to my house, I’ll shoot him. And I don’t shoot legs. I’ll shoot ‘em in the head. Dead witnesses don’t talk sort of thing.” These are merely examples of his uninspiring performance on the 7.30 Report: see generally Ex VD 30.

7. The application for discharge jury arose as a result of a publication in the Sunday Telegraph dated 26 April 2016, under the heading “Tantrums, Drugs and Snitches Tore Gang Apart”. There was also a subheading entitled “The end of B4L”. This article was marked as exhibit 29 on the voir dire.

8. Once again, the article was concerned chiefly with the man Michael Odisho. It seems that it arose following his trial in the District Court and following the lifting of a non-publication order that had been in place during the course of the trial. There is a photograph of him at the commencement of the article doing a rude gesture involving his middle finger to the camera. There was also a photograph of the Brothers for Life Australia jacket, which has and will feature in the course of the present proceedings. The article describes a number of incidents involving the “Brothers for Life”. The article does not distinguish between the Brothers the Life in Bankstown, of which Mr Odisho was apparently a member and the Brothers for Life in Blacktown, which was the group with which each of the accused men was associated. There is a good deal of information in the article which runs over three pages of the Sunday newspaper. The article details the activities of Mr Odisho and other associates. None of the activities described in the article are relevant to the charges faced by the accused in this trial.

9. The article refers to some of the police officers who are expected to give evidence in the present case as well as to other matters which, by coincidence, have echoes in the details of the current trial. For example, there is a photograph of a burnt-out silver/grey Honda Accord which was apparently associated with a “missing drug dealer”. The present trial also has evidence relating to a silver Honda. However, both parties agree that the two Honda motor cars are completely unrelated to one another. Similarly, there is reference throughout the article to a witness called “George”. Again, in the present trial, it is expected that evidence will be given by a witness named George. I am told by counsel that it is a different George. There is also reference to a shooting incident that took place at Winston Hills. The shooting of Mr Odisho (counts 4, 5 and 6 on the present indictment) took place at Winston Hills. However, they are entirely unrelated incidents, the incident referred to in the article seemingly having taken place many months before the Brothers for Life at Blacktown were formed.

10. The submissions in support of the discharge application centred around the prejudice that would be created in the mind of any individual juror who happened to have read the article. Concerns were expressed that the article did not distinguish between the two groups – that is, the BFL Blacktown and the BFL Bankstown. While the article did not make that obvious distinction, the evidence in the present case, and everything that the jury has heard up until this point in the trial, makes it clear that this was not one organisation, but two organisations.

11. I was, and remain, unable to see how the fact that the article fails to distinguish between the factions of the BFL and the various factual coincidences that exist between the subject matter of the article and the subject matter of the trial justifies the discharge of the jury or prejudices the right of each of the accused to receive a fair trial. On an assumption that any of the jurors have read the article, I doubt that the matters reported would cause any individual juror (or the jury as a whole) to judge the case differently, let alone unfairly.

12. If an individual juror had read the article, it would be entirely clear that the report related to an unrelated series of events perpetrated by a different “chapter” of the Brothers for Life.

13. Senior Counsel for Mumtaz Qaumi referred to the fact that he opened the case on the basis that his client acted in self-defence or in defence of his brother whose life, he believed, was in danger. Again, I am unable to conclude that the contents of the article, either by itself or taken in combination with the 7.30 Report segment, would cause a juror to bring anything other than an impartial mind to bear upon the issues they have to decide. I do not think that the fact that the accused, or some of them, are proposing to rely on self-defence or defence of another, changes this fact at all. If anything, the article supports that which the defence will seek to establish in this case: that is, the Bankstown Brothers for Life gang members were violent criminals.

14. I agree that it is unfortunate that the article was published when it was but nothing in the article is likely to have any rational or emotional impact on a jury considering the evidence in the present proceedings. The coincidences and the failure to distinguish between the groups is a matter that was able to be dealt with by direction in conjunction with a clear reminder of jurors’ obligations under their individual oath or affirmations.

15. The record of the proceedings, including the lengthy process of empanelment, demonstrates that the jury has been repeatedly reminded to decide the case only on the evidence. The fact that the jury has taken these directions seriously was demonstrated when, on the third day of the trial, it was brought to the Court’s attention that one of the jurors had a very limited association with one of the Corrective Services officers. The juror was examined and it became clear that the juror in question (who now sits in the foreperson’s seat), and the jury as a whole, had well understood and had taken seriously the directions about the need to judge the case impartially as well as the importance of appearances: see R v Qaumi & Ors (No 21) [2016] NSWSC 402.

16. The jury has been reminded on a daily basis of its obligation not to discuss the facts of the case outside of the jury room and not to undertake research into the facts of the case or the witnesses and the accused. It has also been told on a number of occasions that it must decide the case only on the evidence that is elicited in the courtroom.

17. I could see no real basis to conclude that the impartiality of the jury might be compromised by the article in the Sunday Telegraph or the earlier item in the 7.30 Report or the combination of the two, even taking into account the extensive media publicity that surrounded the present case at the time of the incidents, the time of the arrest of various accused and the sentencing of some of the co-offenders.

18. However, it did seem to be appropriate to bring the matter to the jury’s attention. When the 7.30 Report item was raised, it was agreed that it was appropriate to make mention in general terms (and not by reference to the name of the television program) of the fact that there had been some reporting when the jury was away from court during a legal argument. In the light of the Sunday Telegraph article and the concerns raised by four of the accused men, I believed that it was appropriate to provide the jury with a more detailed direction. Accordingly, having rejected the applications for discharge of the jury, I gave the jury the following directions when it returned to the court:

“I don't know but during the break you may have become aware or seen a report that was on one of the television current affairs programmes that touched upon one of the incidents that you are dealing with. One of the witnesses that you have already seen in fact was interviewed in that programme and another person who the Crown expects to call as a witness was featured. If some of you did happen to see that television item then you will already know that it didn't really touch upon any of the evidence in this case. In any event, if you did happen to see it you just should ignore it completely. It is completely irrelevant to your considerations.

So I'm going to reiterate and direct you as a matter of law that you must decide the case on the evidence that you hear in the courtroom and only on that evidence. You should not allow any report in the media, if you saw that one or any future one that you may see, to influence your views of the evidence.

This morning counsel also brought to my attention the fact that an article appeared in one of the weekend papers. Now, that article was about some of the members of the group known as the Brothers for Life at Bankstown. The article did not distinguish in any way between that group and the Brothers for Life at Blacktown.

As you know because you have been here and actually listened to the evidence, those are different groups, different people and it is just wrong to speak of the quote Brothers for Life, unquote, as if they were one group, one whole homogenous thing. They are not. So if any of you did happen to read an article over the weekend which again touched on a person who will give evidence in the case, just ignore that article. It in fact did not touch on anything to do with this trial.

But counsel has brought to my attention some coincidences and I will mention three. There was reference in this article apparently to a Honda motorcar. You have heard evidence of a Honda motorcar, it may even have been the same make but it is not the same car, it is a completely different car. That car, and there was a picture of it, was burnt out. Not the same burnt out car that you have and will hear evidence about. Nothing to do with it whatsoever.

Second, in this article there was reference to a witness called George. I am told that you are going to hear from a witness called George. Different bloke. Not related, nothing to do with one another. Just happened to have the same first name.

Third, there was reference to a shooting incident that took place at Winston Hills. Now, as you know in this case there is evidence of a shooting incident that took place at Winston Hills. It has nothing to do with this case. Different incidents, not related at all, not connected in any way to the evidence that you will be hearing about. It is an incident as I understand it that took place a long time earlier, I think earlier than even the Crown alleges that the Brothers for Life at Blacktown was even formed.

There was mention of some police officers involved in that case, that is the case that was subject to the article, and some of those police officers will be giving evidence in this trial or they may be mentioned in the evidence. That is not very surprising. Just like barristers have lots of different cases and judges do lots of different cases, so too, police officers are involved in different investigations. They are unrelated and unconnected.

In the end, members of the jury, none of those co‑incidences matters. If you happen to read it, just disregard it. It is and you will probably have worked it out if you did read it, completely irrelevant. What does matter is this. That each one of you is true to the oath or the affirmation that you took at the beginning of the trial. That means amongst other things that you have to decide the case on the evidence. It means you put out of your mind things you hear about outside of the courtroom, and, as I have said, the article and the television show actually had nothing to do with the case and it would not assist you anyway.” [1]

1. Transcript 890-891.

19. It was for those reasons, as well as my confidence in the jury’s capacity and desire strictly to comply with the directions that it is given, that I refused the application by the four accused that the jury be discharged.

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Endnote

Decision last updated: 30 November 2016