Supreme Court New South Wales Medium Neutral Citation: R v Qaumi & Ors (No 2) (Basha Inquiry) [2015] NSWSC 1715 Hearing dates: 2, 5, 9, 11, 13 and 16 November 2015 Date of orders: 18 November 2015 Decision date: 18 November 2015 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Basha Inquiry ordered. Directions made for conduct of Inquiry. See paragraph [22]. Catchwords: CRIMINAL LAW – Basha inquiry – consent by Crown – dispute as to scope of pre-trial cross-examination – multiple accused charged on 36 counts – roll-over witnesses – twelve informant witnesses – onus on the accused to establish that cross-examination necessary to secure a fair trial – inconsistencies in brief insufficient to discharge onus – ambiguity as to case the accused required to meet sufficient to discharge onus – dress-rehearsal Legislation Cited: Criminal Procedure Act 1986 (NSW) Cases Cited: B v Gould & DPP (1993) 67 A Crim R 297 Redacted v DPP [2015] NSWSC 747 Kennedy v R (1997) 94 A Crim R 341 R v Basha (1989) 39 A Crim R 337 R v Ibrahim [2007] NSWSC 1140 R v Nasiri [2015] NSWC 1649 R v Qaumi and Ors (AVL) [2015] NSWSC 1711 R v Sandford (1994) 33 NSWLR 172 Category: Procedural and other rulings Parties: Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Witness M Mohammed Zarshoy Mohammed Nasiri John Bishop (aka John Bischoff) Mohammed Kalal Representation: Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) W Brewer (J Quami) T D F Hughes (Witness M) R Driels (Zarshoy) P Doyle (Nasiri) T Evers (Bishop) J Nicholson SC (Kalal) Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten & Co (M Quami) Bannisters Lawyers (J Quami) Oxford Lawyers (Witness M) Zahr Lawyers (Zarshoy) Doyle Legal (Nasiri) Takchil Law (Bishop) 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; 2014315253Witness M – 2014/90422; 2014/315510Mohammad Zarshoy – 2014/316236Mohammed Nasiri – 2014/86158John Bishop – 2014/250431Mohammad Kalal - 2013/344739; 2014/66939 Publication restriction: No publication until conclusion of trial or further order Judgment 1. Between them, the eight accused persons are charged with a total of 36 offences. This includes two counts of murder and a variety of other very serious offences including the possession of drugs and firearms, participation in a criminal group known as the Blacktown Chapter of the Brothers For Life and charges arising out of seven other shooting incidents. They were arraigned on 27 July 2015 and the matter was listed for a pre-trial hearing commencing on 2 November 2015. Six of the accused, that is all except for Witness M and Mr Nasiri, have made an application to cross-examine a number of the witnesses on what has come to be known as a "Basha Inquiry": R v Basha (1989) 39 A Crim R 337. 2. On 27 July 2015, case management orders were made requiring: 1. Each accused to notify the DPP of any witnesses it seeks to examine on the Basha inquiry by 16 October 2015, with such notice to include the basis of the application and area for cross-examination. 2. The Crown to advise its attitude to such applications by 23 October 2015. 3. If the parties did not reach agreement, written submissions to be by 29 October 2015. 1. There was substantial compliances with orders (1) and (2). The parties did not at that stage reach agreement although the Crown made some small concessions in relation to an application foreshadowed by an accused person (Nazir Akbari) who no longer appears in the trial. The pre-trial hearing began and was, to a degree, hijacked by an application by the NSW Commissioner for Police of which neither the Court nor the parties were on notice: see R v Qaumi and Ors (AVL) [2015] NSWSC 1711. This involved applications for orders that evidence be given by AVL, closure of the Court, screening of twelve witnesses as well as suppression and non-publication orders. It was also necessary to resolve a plea in bar raised by the accused Nasiri: R v Nasiri [2015] NSWC 1649. I am prepared to accept that it was as a result of those matters that there was, for the most part, a somewhat lacklustre compliance with the direction for the filing of written submissions on the Basha issue. I exempt from that last comment the representatives for Jamil Qaumi, Farhad Qaumi and the Crown. 2. The status of the matter was raised at the conclusion of arguments in relation to the AVL issue on Friday 13 November 2015. At that stage the parties were still far apart. Putting to one side accusations that one side was being "intransigent" and the other seeking orders that were far too broad, the parties expressed some hope that they may reach agreement or at least reduce the areas of dispute. The matter was adjourned until Monday 16 November 2015 for argument. On that day, the parties were largely in agreement as to which witnesses should be called and the areas of cross-examination that should be allowed. The Crown filed a document setting out the areas in relation to which agreement had been reached or, perhaps more correctly, the witnesses and areas of cross-examination that the Crown did not oppose. 3. Jamil Qaumi was content with the areas proposed by the Crown. There remained some areas of dispute between the Crown and Farhad Qaumi, Mumtaz Qaumi, John Bishop and Mohammad Kalal. Counsel for Mr Zarshoy raised a new area of cross-examination (drug use on the day of a particular offence) and the learned Crown Prosecutor did not oppose that area being added. Counsel relied on written submissions filed earlier (or, in one instance, filed in Court and after the oral submissions) and made some relatively brief oral submissions. 4. It remained for me to formulate with some precision the witnesses to be called and the areas of cross-examination to be allowed. I have provided the parties with a series of directions for the conduct of the Basha inquiry. These are set out below at [22]. These are my brief reasons for making those directions. I am unable to set out or summarise the careful arguments of counsel or the voluminous material upon which the decision is based in the limited time available. It is necessary that the Basha inquiry begin as soon as possible to ensure that the pre-trial hearing, which is listed for a total of eleven weeks and involves a diverse range of issues, is completed within the time available to ensure that the trial proper commences in late February or early March next year. The timetable originally set has not been met as a result of the unexpected application to which I referred in paragraph [3] above. The Crown has indicated that it will have witnesses available commencing the day after I announce my decision and accordingly I have prepared these reasons, along with my decision in R v Qaumi and Ors (AVL), over the course of the 36 hours and these brief reasons may not appear to do justice to the submissions of counsel on both side. 5. In addition to the cross-examination on the Basha inquiry, counsel for Mr Bishop and Mr Kalal have also indicated a desire to cross-examine some of the witnesses on issues concerning the application for separate trials and severance of counts on the indictment. That application will be conducted at the conclusion of the Basha inquiry. The Crown has tendered the statements of the relevant witnesses and summarised those statements in material tendered specifically for the purpose of the applications for separate trial and severance. In those circumstances, provided the questioning is relevant to the issue concerned (that is, severance or separate trial), the accused have a right to cross-examine on the voir dire. As a matter of convenience and to avoid calling the witnesses twice during the pre-trail hearing, that questioning will take place in the course of the Basha inquiry. the evidence 1. In a nutshell, the witnesses in relation to whom the Basha inquiry is directed are informants or police officers who dealt with the informants. Most of the informants were criminally concerned in the commission of many of the crimes with which the accused stand charged. Each witness has provided a number of interviews and statements and has received a number of benefits as a result of their co-operation with the police. 2. I am told that the accused (and I gather that means all or most of them) made an application for leave under s 91 of the Criminal Procedure Act 1986 (NSW) to cross-examine the witnesses at the committal hearing. That application was refused. 3. The Crown has tendered nine volumes of material which consists of statements and interviews of the relevant witnesses along with two volumes of material provided by investigating police (Ex VD-B). It has also tendered a bundle of documents prepared for an anticipated separate trial and severance application (Ex VD-A). Exhibit A contains a number of helpful charts and summaries of the evidence in the prosecution case. The Crown also tendered a "précis" of information disclosed to the defence relevant to the Basha enquiry (Ex VD-J). The accused rely substantially on the material tendered by the Crown but have also tendered a synopsis of a conversation between three of the witnesses recorded by listening device (Ex VD-3). The defence has also drawn my attention to an Instagram post in which one of the witnesses posted parts of the statements of two of the other witnesses (MFI VD-8). the law 1. In R v Basha, Hunt J (with whom Carruthers and Grove JJ agreed) explained a practical method by which the possible prejudice to an accused person occasioned by the absence of a committal hearing or the service of new statements might be removed. His Honour said at 339: "I have myself in the past permitted an accused to cross-examine a new witness on a voir dire before he was called in the trial. We have been told that other judges have also done so, prior to any evidence being called in the trial." 1. In R v Sandford (1994) 33 NSWLR 172, Hunt J explained at 180-181 some of the limits on such a process and said that the onus was on the accused to establish the necessity for a Basha inquiry: "I maintain my belief in the obvious value of such a procedure — by whatever name it may be called — provided (and these are important provisos) that the accused has demonstrated — in advance — the particular issue which he intends to pursue, that the judge is satisfied that there is at least a serious risk of an unfair trial if the accused is not given the opportunity to do what otherwise would have been done at the committal proceedings, that the procedure is not used inappropriately in order to try out risky questions which may otherwise prove to be embarrassing in the presence of the jury, and provided also that such an examination is not permitted to interrupt the trial itself significantly: cf R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 59-60. The onus lies upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would otherwise suffer during the course of the trial is in a relevant sense unacceptable, to the extent that the trial would be unfair: Barron v Attorney-General for New South Wales; R v Basha. If a decision is made that it is appropriate to follow such a procedure, it is something which should usually be followed before the jury is empanelled or at some other time which does not interrupt the trial." 1. The procedure is now well established and may apply even when, as here, the evidence is not new and when a Magistrate has refused leave to cross-examine at the committal hearing. Indeed, in the present case, one of the accused (Witness M) appealed against the decision of the magistrate to refuse leave. The appeal was unsuccessful partially (if not largely) because the matter was already before this Court and the undesirability of fragmenting the criminal process: Redacted v DPP [2015] NSWSC 747. Hoeben CJ at CL referred to the pre-trial procedures available in the Supreme Court to cure the possibility of prejudice and observed at [31]: "This would seem to be the very sort of case where there are good prospects of a Basha inquiry being conducted if and when the plaintiff makes such an application." 1. I would also note the observations of Hunt CJ at CL (with whom Grove J) agreed J in Kennedy v R (1997) 94 A Crim R 341. In that case, where there was confusion in the statement of a complainant as to when an offence occurred and the police had taken further statements to clarify the issue, his Honour said at 351: "In my opinion, such a procedure is essential in the present case. The applicant is in no way obliged to accept that the attempts made by the police to obtain these details from the complainant." 1. In some cases, inconsistency within the prosecution brief, or in the version provided by a critical witness will be sufficient to justify the holding of a Basha inquiry: see for example R v Ibrahim [2007] NSWSC 1140 and (in relation to committal hearings) B v Gould & DPP (1993) 67 A Crim R 297 at 303-304. That is particularly so in cases where the inconsistency provides a real confusion over the case that the accused has to meet. However, as the many cases under s 91 of the Criminal Procedure Act 1986 (NSW) establish, each case will turn on its own facts and the fact of inconsistency in the material will not necessarily give rise to a right to cross-examine or to a finding that a failure to allow cross-examination (either on a committal hearing or on the Basha inquiry) will result in an unfair trial. DETERMINATION 1. The Crown correctly acknowledges that the case is an appropriate one for a Basha inquiry and, as I have said, the parties have largely agreed upon the witnesses to be called and the areas of cross-examination. There remains some dispute about the breadth of the cross-examination and it remains for the Court to determine the precise content and extent of the Basha Inquiry. Where the parties are in agreement, I can see no reason to trespass on the joint position reached after considerable negotiation conducted by experienced counsel with a far greater understanding of the issues to be ventilated at the trial than I have at this early stage of the proceedings. 2. The accused rely on the fact that so called "roll-over" witnesses by their nature are apt to be unreliable. In this case, there is direct evidence of three of the witnesses scheming to maximise the available reduction in sentencing and showing a willingness to lie to achieve that end. The accused rely on the fact that the informant witnesses are critical to the Crown case in respect of most if not all of the charges. I accept that the present application, and the arguments advanced in support of broad parameters for cross-examination, must be considered in the light of those matters and with those facts borne firmly in mind. 3. The Crown relies on the fact that the accused have been provided with a large number of documents setting out what the witnesses will say or have said in the past. Further, much of that material is in question and answer form and electronically recorded. The accused says that the sheer bulk of the material does not establish that it is complete and points to inconsistencies within the statements of individual witnesses and to conflicts between the versions given by individual witnesses. 4. I do not accept that the fact that a witness has given inconsistent accounts of the same event or conversation or the fact that two or more witnesses give inconsistent accounts necessarily leads to a conclusion that the accused cannot obtain a relevantly "fair" trial if not permitted to cross-examine those witnesses in advance of the trial. That is the situation that pertains to one of the areas of dispute in relation to the accused Bishop (his participation or membership of the criminal group) and to aspects of the submissions made on behalf of Farhad and Mumtaz Qaumi. 5. The inconsistencies pointed to in this case are not of the same nature and significance as those with which Price J was dealing in R v Ibrahim when his Honour ordered a Basha inquiry to determine which of two versions a critical witness would give at the trial. 6. Further, the conduct of a Basha inquiry is not an opportunity for the accused to conduct a "dress rehearsal" for the trial or to ask questions that might be considered dangerous if asked in the presence of the jury. Part of the dispute between the Crown and the accused Kalal appears to meet this description. 7. On the other hand, the accused is entitled to know the case that they will be required to meet and where there is true ambiguity or a lack of clarity or particularity in the witness' statements, it is appropriate that the accused be afforded the opportunity to cross-examine. This applies to the actions of Mr Bishop in respect of his involvement in the events giving rise to counts 8 and 9 and to the conversations alleged in respect of the directions allegedly given by Farhad and Mumtaz Qaumi in respect of most of the counts on the indictment. 8. Keeping firmly in mind the principles referred to above, and in an attempt to ensure that the Basha inquiry remains contained within the overarching requirement that the accused persons each receive a fair trial, I make the following orders or directions: 1. Direct the Crown to make available for cross-examination on a "Basha" inquiry the witnesses known as A, B, C, D, E, G, I, J, K and L. 2. Such cross-examination is subject to the following general limitations: 1. The cross-examination is only to be conducted by counsel representing an accused charged with a count (excluding counts 35 and 36) to which the particular witness's evidence relates. 2. The cross-examination is not to be repetitive. 3. If an area of cross-examination has been covered by counsel for a co-accused, subsequent counsel will not be permitted to engage in cross-examination on the same areas if that cross-examination is repetitive. Counsel should reach agreement as to the order of cross-examination in respect of each witness. 1. Such cross-examination is to be limited to the following general areas: 1. What influenced the witness to assist police by providing statements and to agree to give evidence against others. 2. What prosecution material (or other material; e.g. internet/ newspaper articles) they had seen or had access to before providing a given statement. 3. What conversations or other communications did they have with police prior to making a given witness statement. 4. Whether the witness had any contact (direct or indirect and including telephone, mail or message) with any of the other informer witnesses prior to completing their police interviews or statements and, if so, which other witnesses. 5. If there was conduct of the kind referred to in (d): 1. Did it include discussion as to detail of any of the charged offences? 2. Did the discussion include providing assistance to police? 3. Did the witness have knowledge that other witnesses were assisting police at the time they provided interviews/statements by way of assistance? 1. Counsel for the accused Farhad Qaumi and Mumtaz Qaumi are permitted to ask relevant witnesses about directions given by their clients and the contents of conversations that occurred prior to the offences charged in the indictment provided such questioning is limited to: 1. Identifying who was present and whether the witness was sufficiently proximate to be able to give evidence of conversations. 2. Identifying the speakers (as opposed to who was present). 3. Whether the events described are based on personal knowledge, or derived from other witnesses, be they informers or otherwise 1. Counsel for the accused Bishop is permitted to cross-examine: 1. Witnesses D, E, I, J and L in relation to the role played by Bishop in the offences charged in counts 8-10. 2. Witnesses I, G and L in relation to a conversation wherein they were encouraged, or encouraged each other, to become prosecution witnesses or to lie and the circumstances of such conversations (that is, the conversation referred to in exhibit VD-3). 1. Counsel for the accused Zarshoy is permitted to cross-examine witnesses relevant to counts 11 and 12 about the ingestion of drugs around the time immediately before or during the commission of the shooting at Revesby Heights on 29-30 October 2013. 2. Counsel for the accused Kalal is permitted to cross-examine witnesses relevant to counts 17-27 about any admission made by the accused such cross-examination being limited to the words used and the time, date, place and other circumstances in which the admission was made. 3. I Direct the Crown to make available for cross-examination on a "Basha" inquiry relevant police officers (with the exception of Detectives Browne and Veness) such cross-examination to be limited to: 1. The content and circumstances of conversations with witnesses A-L either before or after obtaining of a given statement. 2. Conversations that are not already recorded within the body of the witness' statement or in a statement of a police officer. 1. I direct the parties to liaise with a view to agreeing on which police officers are required for the purpose of direction 8. 2. I note that during the course of the Basha inquiry, counsel for the accused Kalal and Bishop will exercise their right to cross-examine on the voir dire in relation to the issues of whether counts should be severed from the indictment and/or whether their clients should be tried separately. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2016