Supreme Court New South Wales Medium Neutral Citation: R v Qaumi & Ors (No 3) (Severance and separate trial) [2016] NSWSC 15 Hearing dates: 8-10 December 2015 Date of orders: 03 February 2016 Decision date: 03 February 2016 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: 1. Counts 1-10 inclusive and counts 30 and 31 are severed from the indictment. 2. Reserve the question of whether counts 35-36 should be severed from the indictment. 3. Direct the prosecution to indicate its election as to the particulars and basis upon which counts 35-36 are to proceed in the light of this judgment. 4. Order that the accused John Bishop be tried separately from the other accused in relation to count 36. 5. All remaining applications for severance and separate trials are refused. Catchwords: CRIMINAL LAW –separation of trials – joinder of counts – severance of counts – multiple shooting offences – thirty six counts - whether offences arose out of the same set of circumstances – rival chapters of the Brother for Life – differences – turf war or pre-emptive self-defence – five shooting offences (twenty four counts) arising out of dispute – remaining offences not related to dispute between chapters - whether part of a series of offences of the same or similar character – interests of justice – whether accused prejudiced or embarrassed by joinder of counts – tendency and context evidence – whether proof of one count admissible in proof of the others CRIMINAL PROCEDURE – non-homicide matters brought up from District Court – direction by Chief Justice – undertaking by Director of Public Prosecutions to recommence matters in District Court if non-homicide matters separated Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: Aouad and El-Zeyat v R [2011] NSWCCA 61 De Jesus v The Queen [1986] HCA 65; 61 ALJR 1 El Zayet and Others v The Queen [2011] HCATrans 342 El-Haddad v R [2015] NSWCCA 10 Guldur (1987) 8 NSWLR 12 Hughes v R [2015] NSWCCA 330 Makarov v R (No 3) [2008] NSWCCA 293 Osman v R [2006] NSWCCA 196 Osman v R [2011] NSWCCA 62 R v Abdul Darwiche [2006] NSWSC 922 R v Adnan Darwiche [2006] NSWSC 923 R v Annakin&Ors(1989) 17 NSWLR 202; (1988) 37 A Crim R 131 R v Assim (1966) 2 QB 249 R v Bunting [2005] SASC 45 R v Bunting and others (No 3) [2003] SASC 251 R v Iskandar [2011] NSWSC 1192 R v Karimi; R v Khoury;R v Mir (No 1) [2013] NSWSC 156 R v Lu and Pham [2007] NSWSC 1141 R v Middis (Supreme Court (NSW), 27 March 1991, unrep) R v Pham [2004] NSWCCA 190 R v Qaumi &Ors (AVL) [2015] NSWSC 1711 R v Roff [2015] NSWSC 1853 R v Singh (Supreme Court (NSW), 10 November 2011, Fullerton J, unrep) R v Symss [2003] NSWCCA 77 Regina v Patsalis&Spathis (No 1) [1999] NSWSC 649 Sokolowskyj v R [2014] NSWCCA 55 Sutton v The Queen [1984] HCA 5 The Queen v Darby [1962] HCA 32 Webb and Hay v The Queen [1994] HCA 30 Texts Cited: Legislative Assembly Legal Affairs Committee Report 'Law Reform Issues Regarding Synthetic Drugs', Report 1/55 – May 2013 Category: Procedural and other rulings Parties: Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi AC 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 (AC) 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 (AC) 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; 2014315253AC – 2014/90422; 2014/315510Mohammad Zarshoy – 2014/316236Mohammed Nasiri – 2014/86158John Bishop – 2014/250431Mohammad Kalal - 2013/344739; 2014/66939 Publication restriction: No publication until further order. Judgment 1. Eight accused currently stand charged on a single indictment with a total of 36 offences said to have occurred between July 2013 and January 2014. The offences allegedly arose out of the activities of a criminal gang known as the Blacktown Chapter of the Brothers for Life (BFLBlacktown).Thirty three of the offences (counts 1-31 and 33-34) involve the possession, use and discharge of a number of firearms. Those offences include two charges of murder arising out of separate incidents on 29 October 2013 and 16 December 2013 (counts 11 and 30). Four incidents occurred in November 2013 giving rise to offences including shooting at nominated people with intent to kill (counts 14-28). Three incidents in July, August and October 2013 involve what might generally be described as extortion or intimidation offences in which firearms were discharged and/or used to threaten the victims (counts 1, 4 and 8).There are also charges of possession of various firearms and the supply of a large commercial quantity of a prohibited drug. The counts name individual accused and combinations of the eight accused in relation to the different offences. Each of the accused also stands charged with an offence of participating in a criminal group (counts 35-36). 2. By separate notices of motion and supporting affidavits, seven of the accused seek various orders whereby certain countswould be severed from the indictment or individual accused subject to separate trials. One accused, AC, makes no application in relation to the indictment. She is content to proceed with a joint trial of all accused and all charges. 3. The matter comes before this Court in its present form as a result of a direction made by the Chief Justice under s 128 of the Criminal Procedure Act 1986 (NSW)on 18 June 2015. That direction permitted the prosecution to present an indictment in the Supreme Court against a number of the accused charged with offences other than murder. By this mechanism, a large number of the charges now on the indictment were brought up from the District Court, the court that ordinarily would exercise the criminal jurisdiction in relation to charges of that nature. However, in making the direction under s 128, the Chief Justice received a written undertaking from the Director of Public Prosecutions (DPP) that if one or more counts on the indictment (excluding murder) were severed by the trial Judge "the Crown undertakes to withdraw any such matters from the Supreme Court and proceed to present an indictment on those counts in the District Court at Sydney."At the time of the direction, the accused opposed the District Court matters being prosecuted in the Supreme Court and provided various submissions in that regard. The accused foreshadowed the kind of applications that are currently before me for determination. However, there was no full argument. The Chief Justice made no assessment of the merit of the Crown's application to join all counts in the one indictment or the various defence applications to sever the indictment or separate the trials of the various accused persons. The Chief Justice made the s 128 direction in the knowledge that these applications would be dealt with by the trial Judge and it was on that basis that the undertaking by the DPP was provided. 4. I have not been made aware of any case in which the Court was confronted with an application of such complexity. The complexity arises as a result of the number of charges and the fact that the various accused are charged with different offences within the 36 counts on the indictment. At one end of the spectrum, the alleged leader of the BFL Blacktown (Farhad Qaumi) is charged with 33 of the 36 offences. At the other, Mohammed Nasiri is charged with two offences, [1] while Mohammed Zarshoy and John Bishop are each charged with three offences. As a result of the diverse nature of the legal predicaments facing each of the accused, their applications seek different orders in relation to separation and severance.At the most extreme (ultimately conceded by Senior Counselto be an "ambit claim") the application calls for severance of each and every count on the indictment or, perhaps more accurately, in respect of each and every incident alleged within the indictment. 5. The Crown relies on s 29(1) of the Criminal Procedure Act1986 (NSW) which allows the Court to hear and determine proceedings relating to two or more offences alleged to have been committed by the same accused person where the offences arise out of the same set of circumstances, orthe offences form part of a series of offences of the same or similar character. The Crown also relies on s 29(2) which allows the Court to hear and determine offences alleged to have been committed by two or more accused persons where the offences arise out of the same set of circumstances or the offences form part of a series of offences of the same or similar character. 6. The accused, in various ways and to varying degrees, rely on s 29(3) which provides that "proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice". 7. The accused also rely on the provision in s 21 of the Criminal Procedure Act 1986 (NSW) which provides a discretion to order a separate trial of any count or counts where an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment or where, for any other reason, it is desirable that the accused person be tried separately. 8. The Crown submits that any prejudice or embarrassment that may arise by virtue of the trial being heard together can be cured by careful direction to the jury. 9. A large amount of evidence has been tendered by the Crown on the application but, with the exception of counsel for the Crown and counsel for Mr Bishop, there has been very little attention paid to the evidence in the course of the otherwise helpful written and oral submissions. The Crown has also provided a number of useful summaries including: 1. A Crown case statement. 2. A chronology of events from July 2013 to October 2014 (when the last of the accused were arrested). 3. A summary of the ballistics evidence. 4. Charts relating to six of the firearms allegedly used in various offences. 5. A "timeline" of events from 25 July 2013 to 3 January 2014 surrounding the 12 incidents out of which the 36 offences arise. 6. A document in relation to each individual accused summarising the evidence of their participation or association with the BFL. 7. A summary of the evidence to be given by 12 witnesses described as "informant" or "roll-over" witnesses. 8. A summary of telephone intercepts acquired by policebetween 6 November 2013 and 9 January 2014. 1. In addition to these summaries, charts, chronologies and timelines the Crown tendered six volumes compromised of statements and interviews made by the 12 informant witnesses, two volumes of statements of police officers who dealt with those witnesses and three volumes of miscellaneous material including statements made by various police officers, relevant electronically recorded interviews and transcripts of various recordings obtained by the use of listening devices. I have also received into evidence tendency notices served by the Crown in respect of each of the accused although the tendency case against Bishop has been abandonedand problems with the tendency notices were identified (and acknowledged) in the course of submissions. 2. The accused each rely on affidavits of their solicitors. Generally, these contain relevant summaries of the Crown case and annex documents such as the Crown case statement. For the most part, the submissions of the accused and the analysis of the case is taken from the Crown case statement. 3. In addition, Bishop relies on an affidavit of his solicitor that establishes, through enquiries made with a company called Complete Surrounds Landscaping, that a vehicle with the registration number CID975 was owned by the company and used by Stephen Dick in 2013 (a former employee of the company). The solicitor states her belief that Stephen Dick's daughter is Maddison Dick, John Bishop's girlfriend. The registration history is annexed to the affidavit. This was the vehicle Bishop was arrested in on 26 October 2013. 4. Nasiri relies on an affidavit of his solicitor annexing two documents. Annexure "A" is a letter from Nasiri setting out the routine that applies when he needs to attend court. Annexure "B" is a custodial history that shows that he was in custody during the period of time in which charges 6-32 were allegedly committed. 5. I was provided with written submissions by the Crown Prosecutor and on behalf of each of the accused and counsel made spirited and helpful oral submissions over the course of two days. With very few exceptions, counsel did not trouble me with references to the detail contained in theevidentiary materialeven though it seems to be agreed that the material is relevant to a determination of the present applications. a summary of the incidents and counts 1. The various incidents giving rise to the 36 charges are set out in a little detail in the Crown Case Statement and in the document entitled Timeline of Alleged Offences. Both of those documents are part of exhibit VD-A. It is unnecessary to set out all of the details of the allegations but it is important to summarise the incidents and counts, to identify which of the accused are charged with the individual offences and to identify which of the informant witnesses are said to be able to give relevant evidence in respect of those incidents. 2. I will refer to the witnesses by the letters which were allocated to them in the course of an earlier application wherein it was proposed that they either be anonymisedor provided with a pseudonym: R v Qaumi &Ors (AVL) [2015] NSWSC 1711. In that judgment, I rejected the suggestion that the witnesses were entitled to anonymity (in particular from the accused) and the witnesses are to give evidence under their own names. However, non-publication and suppression orders remain in force. 3. The BFL was originally formed by a prison inmate called Bassam Hamzy. While it was said to have some form of Islamic foundation, on the prosecution case it was really a criminal gang. By 2013 there were two main factions, being the chapters based in Bankstown and Blacktown. The Bankstown chapter was being run by a man known as "LC" or "Little Crazy". His real name is Mohammed "Hamoudie" Hamzy. By the middle of 2013 the accused Farhad Qaumi ("Farhad") had assumed leadership of the BFL Blacktown. The membership of the Bankstown chapter consisted mostly of people of Lebanese origin whereas the BFL Blacktown was predominantly made up of people of Afghan heritage. 4. The BFL Blacktown had a clubhouse in Forge Street, Blacktown, said to be fortified and protected by CCTV surveillance cameras. Meetings were held on Saturday nights and members were required to pay a weekly fee of $50 for rent and maintenance of the clubhouse. The members of the BFL Blacktown were provided with a jacket which had a logo consisting of twocrossed AK-47 rifles and the words BFL and Sydney's Southwest emblazoned on the chest and sleeves. 5. The Crown alleges, based on the evidence of a number of the informant witnesses, that the activities of the BFL Blacktown were directed by Farhad Qaumi, sometimes in conjunction with his brother Mumtaz Qaumi. Throughout this judgment, I will refer to these two accused, and their brother Jamil Qaumi, by their first names and to the remaining accused by their surnames. All of the accused persons in the present trial and most of the informant witnesses were members of the BFL Blacktown. The only exception is AC who is said to be a close associate of Farhad. The Crown case is that the singular or predominant purpose of the BFL Blacktown was to make money out of the commission of crimes. Those crimes included drug supply and extortion. Wentworthville Shooting (counts 1-3) 1. Mustafa ("Musti") Shanasa was a member of the BFL Blacktown for a short period in or around July 2013. He had received a "pound" of cannabis from Farhad and owed money for those drugs. It is alleged that the amount of the debt was $3,500 but that Farhad was seeking compensation of $15,000. This dispute over drugs and money is alleged to be the motivation for the shooting incident that forms the basis of counts 1, 2 and 3. It is alleged that an arrangement was made whereby Shanasa would attend the Wentworthville swimming pool. A number of the members of the BFL Blacktown were in attendance including Farhad. It is alleged that Farhad approached Shanasa, said something, pulled out a pistol and fired two shots at him. When Shanasa tried to flee Farhad fired four more shots at him. 2. There is some ballistic evidence supporting this charge. Six 9mm cartridge casings were recovered from the scene of the shootingand each bore the Winchester head-stamp. Witnesses G, I and Jall had some involvement in setting up the shooting or were in attendance. Witnesses A,B and C maygive evidence at trial of things said by Farhad after the shooting which is said to provide some support to the Crown case. 3. Counts 1 and 2 are allegations of discharging a firearm with intent and discharging a firearm in a public place against Farhad, Mumtaz andNazirAkbari. Count 3 is an alternative to count 1and alleges that Akbari was an accessory after the fact of the shooting offences. 4. I should interpolate here that NazirAkbari has, since the commencement of these proceedings, been separately arraigned in the District Court and pleaded guilty to certain offences (I have not been told which ones) and the matter is proceeding in the District Court. As far as the prosecution is aware, Akbari will play no further part in the present proceedings. Eagle Vale shooting (counts 4-5) 1. It is alleged that Farhad called a meeting at the Blacktown BFL clubhouse on 1 August 2013. Present at the meeting were the accused Mumtaz, Akbari, Nasiri and Farhad himself. Also present were two other members (Boxmati and Shemaon) as well as witnesses A, B, C, G and J. The meeting was organised by witness I acting on Farhad's instructions. 2. Farhad told the group that drug dealers lived at certain premises in Eagle Vale. It is alleged that he directed some of the members of the BFL Blacktown to attend the premises and steal the guns, money and drugs that (he believed) were present there. He said to do this by intimidation including tying up the occupants and shooting them. Mumtaz gave further directions for the group to travel to the premises in three different vehicles. Farhad provided the group with an unregistered sawn-off "Mossberg" pump action shotgun which had been shortened at both ends. All of those who attended the meeting with the exception of Farhad, Mumtaz and witness G went to the Eagle Vale premises. A number of shots were fired by Shemaon and witness B kicked the door. Other members of the group banged on the windows and doors. It seems that the group did not enter the premises and the Crown case statement indicates that nobody was injured during the incident. It also seems that no property (money, drugs or guns) was acquired. 3. On return to the clubhouse the "Mossberg" shot gun was returned to Farhad and was secured somewhere in the BFL Blacktown clubhouse. Police recovered the gun on 12 December 2013. 4. It is said that Farhad was extremely angry about the failure of the groupto secure any property from the premises. 5. As a result of this incident Farhad, Mumtaz, Akbariand Nasiri are charged with offences of attempting to break and enter the dwelling house at Eagle Vale in circumstances of special aggravation and firing a firearm at a dwelling house in the course of an organised criminal activity. These are counts4 and 5 on the indictment. It seems that witnesses A, B, C, G, J and I will be called to give evidence in relation to these offences. Pendle Hill test firing of an assault rifle (counts 6-7) 1. On 9 October 2013 Farhad together with witnesses I, J and C attended premises in Pendle Hill with a view to purchasing an AK-47 assault rifle. The house was the home of witness F who was to broker the deal or play some role in the negotiations. As things transpired the gun in question was not an AK-47 but rather an SKS assault rifle. After negotiations the purchase was completed and Farhad acquired the SKS assault rifle along with ammunition. It is alleged that he then test fired the rifle outside of the premises and neighbours who heard the shots notified the police. As police approached the vicinity, they saw two cars. One car was stopped and Farhad along with witnesses I and J were arrested. However witness C was driving a separate vehicle containing the SKS assault rifle and ammunition and he made his escape. The firearm in question has not been recovered. 2. As a result of this incident Farhad is charged with counts 6 and 7 on the indictment. These are offences of firing a firearm in a public place and acquiring a prohibited firearm. None of the other accused are charged with these offences but it seems that witnesses C, F, I and J will be witnesses to the events giving rise to those charges. Castlereagh shooting (counts 8-9) 1. On 14 October 2013 witness E contacted Mumtaz and explained that he was having some difficulties with a person called Christopher Muscat in relation to the sale of a Range Rover motor car. WitnessE wanted to sell the car to Muscat for the sum of $50,000. Mumtaz told witness E to tell Muscat to get the money ready for the transaction. His intention was to steal the money. 2. Later that afternoon witness E met up withMumtaz. An unknown male placed a gun into his car. They journeyed to the Blacktown BFL clubhouse where the gun was given to Farhad Quami. Present at that time were Farhad, Mumtaz, Jamil, Bishop, witnesses I and L and other BFL members. 3. Farhad is said to have pointed the gun at witness E and pulled the trigger on a number of occasions. Farhad then gave orders to Jamil, witness L, witness I,Bishop, another BFL member and witness E to go to the home of Muscat and "shoot him in the legs and get the money" (or words of similar import). The group travelled to the address in Castlereagh, entered the premises and witness L discharged the firearm. A dog was injured as a result. The victim was threatened but managed to escape by means of a ruse. 4. Police attended the scene and conducted forensic and ballistics examinations. A number of fired cartridge casings were located along with the projectiles and these were said to be from a .38 'Special' 36-1 revolver with serial number J117163. That firearm was recovered by police shortly after another shooting on 7 November 2013 (the Chokolatta Café shooting). Once again, this attempted extortion offence was botched and once again Farhad was extremely angry when he was told of its failure. He threatened to shoot E in the leg and directed other members of the group to assault him. There was then a plan to steal the Range Rover (which actually belonged to E's father) but this plan also failed. 5. As a result of this incident Farhad, Mumtaz, Jamil and John Bishop are charged with counts 8 and 9 on the indictment being respectively a specially aggravated break and enter offence along with the possession of the weapon. Farhad, Mumtaz and Jamil are also charged with demanding money with menaces arising from the attempt to obtain the white Range Rover. 6. The prosecution anticipates that witnesses E, I, J and Lwill give evidence in relation to this matter. The Hamzy murder and shootings at Revesby Heights (counts 11-13) 1. It is the Crown case that on or around 28 October 2013 the accused AC approached Farhad and told him that she had become aware that Mohammed "Hamoudie" Hamzy of the Bankstown BFL planned to murder Farhad. Farhad brought this information to the attention of a number of the members of the BFL Blacktown. The conversations took place first at the Anytime Fitness gym at Parramatta and then at the Armani restaurant. In the course of the latter meeting the group began to plan the murder of Mohammed Hamzy. Those involved in the planning included Farhad, Jamil, AC and witnesses J and L. Later, witness A and the accused Zarshoy also became involved. Further meetings took place at various outdoor locations including a park in Granville. 2. The planning meetings culminated in a group of men including Jamil, Zarshoy and witnesses L and J attending premises where it was believed that Mohammed Hamzy lived. 3. AC drove Jamil, Zarshoy and witness L to the premises. They waited outside for a time and, after a number of people associated with the Hamzys left, the three men ran into the garage attached to the premises and began to fire their weapons. Witness L was armed with a .45 calibre firearm given to him by Farhad while Zarshoy and Jamil were each armed with .38 calibre revolvers. 4. In the course of the shootings, Mahmoud Hamzy was killed. Mahmoud was a cousin of the intended victim, Mohammed Hamzy. Also shot in the course of the incident was a man named Omar Ajaj. He suffered gunshot wounds but did not die. After the shooting AC drove the perpetrators away from the scene. They successfully made their escape. 5. Ballistics evidence will suggest that the .38 Smith and Wessonspecial assault revolver used in the shooting was also used by witness L in the incident at Castlereagh. The second .38 calibre handgun was subsequently recovered by police on 12 December 2013. Projectiles recovered from the scene at Revesby Heights indicate that the gun recovered in December was the gun used in the Revesby shooting. The .45 calibre pistol was not recovered. 6. This incident gives rise to three of the counts on the indictment (counts 11, 12 and 13). Count 11 charges Farhad, Mumtaz, Jamil, Zarshoy and AC with the murder of Mahmoud Hamzy. Count 12 charges the same five accused with an offence of causing grievous bodily harm to Omar Ajaj with intent to kill him. Count 13 charges Farhad, Mumtaz, Jamil and AC with conspiracy to murder Mohammed Hamzy. 7. Witnesses A, J and L are likely witnesses in respect of these offences but other informant witnesses may give evidence of conversations that occurred afterwards and in preparation for the shootings that followed. Winston Hills shooting of Michael Odisho(counts 14-16) 1. On 2 November 2013, a number of members of the BFL Blacktown met at the Star City Casino. This included Farhad, Mumtaz, Jamil, Zarshoy and witnesses A, C, D, I and L. Whilst at the casino Farhad was approached by two other men (known as "Glebe" and "Stretch") and was told that it was known in the community that he (Farhad) was responsible for the shooting and killing of Mahmoud Hamzy. 2. Thereafter Farhad told the rest of the gathered members of the Blacktown BFL that the Bankstown group would be "coming for them". Once again, they decided to strike first. 3. At a meeting in Merrylands,Mumtaz and Jamil told a group of Blacktown BFL members including witnesses C, D, I, J and L that the Bankstown BFL were coming for them and they needed to take them out. Witness C was told by Mumtaz that he was going to kill Michael Odisho, a member of the Bankstown BFL. There was then an attempt to steal a car and meetings were held at various parks during which Mumtaz and Jamil instructed witnesses C, D and I to shoot Michael Odishoat his house in Reilleys Road, Winston Hills. Witness C drove to Reilleys Road with witnesses D in the vehicle. Once they arrived, witnesses D and I got out of the vehicle carryingguns. Witnesses D and I went to the front door of the premises and when Michael Odisho came to the door the witnesses began firing.Ballistics evidence suggests that witnessD fired four shots from a shotgun and witness I fired 3 shots from a pistol. Medical examination showed that Michael Odisho sustained a gunshot wound to his left elbow, two wounds to his left thigh and one wound to the back of his left leg. Witnesses D and I ran back to witness C's vehicle and they all escaped the scene. 4. Counts 14, 15 and 16 arise out of the shooting of Michael Odisho. Farhad, Mumtaz and Jamil are each charged with an offence of soliciting the murder of Michael Odisho, shooting at Michael Odisho with intent to murder and (in the alternative) discharging a firearm with intent to inflict grievous bodily harm on Michael Odisho. 5. Witnesses A, C, D, I, J and L are all likely witnesses in respect of these offences. Shooting at Sunnyholt Road, Blacktown (counts 17-19) 1. On 4 November 2013, the defensive but pre-emptive strike on the Bankstown BFL continued. The Crown alleges that Farhad gave instructions to Kalal and witnesses D and I to shoot another member of the Bankstown group, Masood Zakaria. 2. Farhad and Mumtaz designed a plan whereby witness D would lure Zakaria out of his house whereupon Kalal and witness I would shoot him. Farhad allegedly told witnesses D and I that if they did not succeed in the plan they would be shot. 3. Later, witnesses C, D and I, along with the accused Kalal, attended the premises at Sunnyholt Road, Blacktown. Kalal was armed with a shotgun and witness I with a revolver. Witness D approached the door of the premises and the door was answered by the proposed victim's father. When the proposed victim came to the door the accused Kalal fired four shots from the shotgun into the area of the doorway. As it turned out a 14-year-old child (who I will call HZ) walked to the front door to investigate the commotion and received "over 300 pellet injuries to her kidney, throat, liver, spine and lungs". It is alleged that the following day Jamil told witness A that members of the BFL Blacktown were responsible for the shootings of Michael Odisho and HK. He said that "F" (Farhad) wanted witness A to mind the group's guns and drugs because they were fearful of a police raid. 4. Ballistics examination suggests that the shotgun used was the "Mossberg" shot gun used in the incident at Eagle Vale (counts 4 – 5). 5. As a result of the Zakaria shooting, Farhad, Mumtaz and Jamil are charged with soliciting Kalal to murder Masood Zakaria (count 17). Farhad, Mumtaz, Jamil and Kalal are charged with wounding HZ with intent to murder HZ (count 18) along with an alternative count (count 19) of causing grievous bodily harm to HZ with intent to inflict grievous bodily harm on Masood Zakaria. 6. Witnesses A, C, D, I and L are all likely witnesses in respect of these offences. Shooting at the Chokolatta Café, Bankstown (counts 20-26) 1. Counts 20 to 27 on the indictment all arise out of an incident that took place at the Chokolatta Café in Bankstown on 7 November 2013. That incident involved witness D and Kalal shooting into or near a motor vehicle occupied by three men, Abdul Abu-Mahmoud, Khalil Khalil and Hassan Soueid. The planning for that shooting occurred on the afternoon of 6 November 2013 and involved Mumtaz, Jamil, AC, and witnesses I and L as well as the two shooters. 2. There was some debate in the course of submissions as to the motivation for this shooting. The evidence of the witnesses suggests that the shooters were told by Jamil that the shooting was necessary to protect the leader of the group, Farhad. However, there appears to be no dispute that Farhad was overseas at the time of this incident. 3. AC, Mumtaz and Jamil planned this incident. Witness L asserted in one of his recorded interviews with police that the motivation for shooting Abdul was that: "AC he (sic) said he's got the addresses and he's gunna give it to the Bankstown boys. He knows where my brother and everyone lives in the Central Coast. The lebos are gunna come and get us, you know what I mean, so we've got to get him before he gives the addresses out." 1. In the time leading up to the shooting, AC and Mumtaz Qaumi told witness I and D that "Youse are gonna shoot that guy tonight". 2. At around 12:15 am on 7 November 2013 the three victims were seated in the blue BMW sedan parked outside the Chokolatta Café. Witness I drove a rented Mazda to a position which blocked the BMW. The accused Kalal was in possession of a .38 calibre revolver and witness D was in possession of a pump action shotgun. They approached the vehicle and fired a number of shots. Two of the victims received gunshot wounds and the third victim was not struck. 3. Police intercepted witnesses I and D along with a man who apparently had supplied them with the weapons. They were arrested in the hired Mazda. Within the Mazda the police seized a shortened "Bentley" pump action 12 gauge shotgun and a .38 calibre Smith & Wesson revolver. They also located a number of fingerprints including those of the accused Kalal and fingerprints of witnesses C, D and I. Kalal's DNA profile was also located on disposable gloves and a T-shirt located in the Mazda. 4. Ballistics examination suggests that the shotgun was the same shotgun used in the shooting of Michael Odisho on 3 November 2013 and that the .38 calibre Smith & Wesson revolver was the same weapon used in the shooting at Castlereagh on 14 October 2013 and in the Revesby Heights shooting on 29 October 2013. 5. As a result of the shooting at the Chokolatta Café, Farhad, Mumtaz, Jamil and AC are charged with soliciting Kalal to murder Abdul Abu-Mahmoud (count 20).Farhad, Mumtaz, Jamil, AC and Kalal are charged with shooting at Abdul Abu-Mahmoud with intent to murder him (count 21) and, in the alternate, discharging a firearm with intent to cause grievous bodily harm to him (count 22).Similar offences are charged with respect Khalil Khalil (counts 23 to 24) and Hassan Soueid (counts 25 to 26).Mohammed Kalal is charged with possession of the .38 calibre revolver on the date of the Chokolatta Café shooting. 6. The Crown expects witnesses C, D, I and Lto give evidence in respect of these offences. Shooting at Greenacre Road (counts 28-29) 1. Counts 28 and 29 on the indictment involve further shootings directed towards members of the Bankstown BFL. This incident is alleged to be a response to the shooting of Sina Mirzaei, a member of the Blacktown BFL. 2. On Thursday 28 November 2013, police intercepted numerous calls from the mobile telephone services of Farhad and Mumtaz. At 6:56pm there was a call from Mumtaz to AC at 6:56 pm asking her to meet him at Thornleigh McDonalds. Farhad and Mumtaz collected witness L at 10:17pm and they travelled together to meet AC. During the meeting Farhad asked AC where "Little Crazy" (Mohammed Hamzy) lived and she offered to drive them there. Hamzy was in gaol at this time. Jamil was also in gaol. Farhad and Mumtaz believed that Hamzy bashed Jamil during this time. Farhad told AC and witness L that they were going to shoot Hamzy's mother and sister as revenge for the shooting of SinaMirzaei and the bashing of Jamil. AC and witness L drove to Granville and again met with Mumtaz and Farhad. Farhad gave witness L a .45 calibre pistol and told him that it was "loaded and ready to go". Witness L recognised it as the pistol he used during the shooting at Revesby Heights. Farhad instructed AC and witness L to shoot the mother and sister but if this was not possible they should perpetrate a "drive-by" shooting. 3. AC and L drove to a block of housing commission flats on Greenacre Road. Witness L exited the car with the gun in his pocket and walked towards the building. He noticed families eating inside the flats and walked back to AC in the car and told her that people were eating and that he was not prepared to shoot women. They decided to do a "drive-by" instead. As they were returning to the units AC noticed several men including Hamzy's cousin and friends standing outside and told witness L to go and shoot them. Witness L agreed and walked towards the men. He shot the window of a nearby car and five further rounds. One bullet struck the foot on Anthony Elkadi causing him to collapse onto the driveway. The four other bullets hit the driveway and surrounding walls. Later that evening AC and witness L met with Farhad and Mumtaz and witness L handed the pistol to Farhad. 4. Ballistics examination of the material recovered at Greenacre Road suggests that the pistol was used at the Revesby Heights shooting. 5. Count 28 on the indictment charges Farhad, Mumtaz and AC with discharging a firearm with intent to cause grievous bodily harm to Anthony Elkadi or another person. Count 29 charges Farhad with the possession of the .45 calibre pistol used at the Greenacre shooting. 6. Witness L is expected to give evidence in relation to these charges. The Antoun Murder at Jersey Road, Strathfield (counts 30-31) 1. On 16 December 2013 Joseph Antoun was murdered at his home in Strathfield. 2. Some days prior to the murder Mumtaz and Farhad contacted witness L and said that he had to kill Joseph Antoun as they had accepted a $200,000 contract for his murder. Witness L was told that if he did not kill Mr Antoun, he and his daughter would be shot. One of the brothers handed witness L a .38 calibre revolver. On 16 December 2013 at 7:12 pm Mumtaz called witness C and arranged to meet. Farhad and Mumtaz met witness C in Blacktown and asked him to drive L to the address in Strathfield to "drop off a package". Witnesses C and L then drove to Jersey Road. Witness L got out of the car and approached the house but returned to the car telling witness C that he didn't think the victim was at home. Ten minutes later witness L approached the house, carrying a small manual in his hand. He then rang the doorbell. Mr Antoun's partner called out asking who it was. He replied that he was "Adam" (an associate of Mr Antoun) and that he had a package for Mr Antoun. As Mr Antoun opened the door his partner shouted out "It's not Adam, don't answer the door". At this time witness L fired five shots through the screen. Four shots entered Mr Antoun's body and he died at the scene. 3. On 3 January 2014 police executed a search warrant of witness C's home and seized two mobile phones which have been identified as being in the area close to Jersey Road, Strathfield, at the time of the shooting. Later on 3 January, Farhad met with witness K and told him to go to witness L's house to collect a .38 pistol. That same day police pulled over witness K and searched his vehicle. They recovered the pistol contained in several plastic bags. A ballistics examination of the pistol located in the vehicle of witness K matched the weapon used in the murder on Joseph Antoun. The plastic bags that the gun was in contained the fingerprints of witnesses K and L. 4. Count 30 charges Farhad and Mumtaz Qaumi with the murder of Joseph Antoun. Count 31 charges Farhad Qaumi with the possessionof the .38 calibre pistol. 5. Witness C, K and L are expected to give evidence in relation to these counts. Guns and Drugs (counts 32-34) 1. Counts 32, 33 and 34 relate to the supply of a prohibited drug, namely, N-(2-methoxylbenzl)-2,5-dimethoxy-4-iodophenethylamine (32) and possession of guns (33-34). 2. On 5 November 2013 Jamil Qaumi met witness A at Lidcombe train station. Jamil requested that he purchase a sports bag from Big W or Kmart. WitnessA then drove with Jamil and witness L to a residential area in Lidcombe. Jamil told A that Farhad "said you need to take the guns and stash them somewhere because everyone's house is getting raided." Jamil told A that the bag contained two guns and some drugs. A said that he did not want to store the guns out of respect for his family. 3. Jamil then called witness C and asked him to meet at witness L's house. Once at his home, L placed a Smith& Wesson revolver as well as some pills and powder in the sports bag. A was then given the bag and it was placed in the back of witness C's car. The group then travelled to a location near A's house. After the group left, A threw the bag over a fence. 4. A short time later, A decided that he did not want anything further to do with the BFL. He avoided contact with the group and travelled overseas. On 11 December A returned to Australia and contacted police the following day. He told the police about the contents of the bag and it was seized by police. The bag contained: * 1,894.4 grams of the prohibited synthetic drug, 25I-NBOMe. The street value of this quantity is estimated to be in the vicinity of $197,325. * 150.8 grams of Lignocaine. * A shortened 12 gauge sawn off 'Mossberg' pump-action shotgun allegedly used in the Eagle Vale shooting and the Zakaria shooting. * A .38 calibre 'special' Smith & Wesson revolver used at the shooting in Revesby Heights. * Ammunition. * One unknown manufacture detachable box magazine. 1. Witnesses A, C, J and L are expected to give evidence in relation to these charges. Participation in a Criminal Group 1. Each of the accused was arraigned on a count of participating in a criminal group, an offence under s 93T of the Crimes Act 1900 (NSW).Nasiri was discharged of this count after his plea in bar of autrefois convict was sustained: R v Nasiri [2015] NSWSC 1649. 2. Zarshoy, Bishop and Kalal are charged with an offence under s 93T(1) of the Crimes Act of participating in a criminal group, knowing it was a criminal group and knowing that his participation in that group contributes to the occurrence of any criminal activity. This is count 36 and the terms of the charge reflects those of the section. Nasiri and Akbari were included in this count but, as I have said, Nasiri was discharged on his plea of autrefoisconvict and Akbari has entered pleas in the District Court and the proceedings in this Court have been discontinued. 3. By count 35, AC, Farhad, Mumtaz and Qaumi are charged with an aggravated form of the offence under s 93T(4A). This is a charge of of participating in a criminal group, whose activities were organised and ongoing, by directing some of the activities of the criminal group, knowing that it is a criminal group, and knowing that his or her participation contributes to the occurrence of any criminal activity. The aggravating feature is that they are alleged to have directed the activities of the criminal group. are sub-sections 29(1) and (2) engaged? 1. The first question to address before turning to questions of whether a joint trial is in the interests of justice and whether the accused would be prejudiced or embarrassed in such a trial, is whether s 29 of the Criminal Procedure Act1986 (NSW) authorises the court to conduct such a trial at all. Section 29 provides: "29. When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances: (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances: (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice." 1. With the exception of AC, none of the accused consent to the conduct of the trial in the manner contended for by the Crown. Accordingly, neither s 29(1)(a) or 29(2)(a) are engaged. 2. Most or all of the accused concede that counts 11-29 "arise out of the same set of circumstances". That set of circumstances is what was described at one stage as the "turf war" between the BFL Blacktown and the BFL Bankstown. In his submissions in reply, Senior Counsel for Farhad said that the circumstances were not properly categorised as a turf war. Rather, the BFL Blacktown, having become aware of a plot by members of the BFL Bankstown to murder its leader, decided to take a pre-emptive strike in anticipatory self-defence. However the matter be classified and whatever nomenclature is employed, I am satisfied that counts 11-29 arise out of the same set of circumstances. 3. There was some suggestion that the counts arising out of the Chokolatta Café shooting (counts 20-26) were of a different character (and not part of the same set of circumstances). This was on the basis that, unlike the earlier shootings, the plan was not simply to shoot members of the rival group. However, the recorded interview with witness L makes it clear that the Chokolatta Caféshooting was, as the prosecution submits, part of the same set of circumstances. The objective, however ill-considered and misguided, was to prevent the BFL Bankstown from obtaining the addresses of the members of the BFL Blacktown as part of the anticipated reaction by the Bankstown chapter to avenge the shootings of Hamzy, Ajaj, Odisho and Zakaria. 4. I am satisfied that each of the offences charged in counts 11 through to 29 arose out of the same set of circumstances, namely the differences and violent animosity which existed between the Blacktown and Bankstown chapters of the BFL. 5. The situation is more complicated in respect of counts 1 through 10 and counts 30 through to 36. 6. The Crown submits that all of the offences charged arise out of the same set of circumstances and identifies that set of circumstances as the criminal activities of the BFL Blacktown between the dates particularised in the indictment (that is from July to December half of 2013). Further, it is the Crown's submission that the offences were a part of a series of offences of the same or similar character. 7. Counsel for the accused contend that the expression "same set of circumstances" ought not to be interpreted in such a broad fashion. It is submitted that the shootings at Wentworthville, Eaglevale, Pendle Hill, Castlereagh and the murder of Mr Antoun did not arise out of the same set of circumstances. It was submitted that, properly analysed, the only "set of circumstances" that can be described as"the same" is the violent conflict between the two rival chapters of the BFL. While that set of circumstances may apply to counts 11-29, it does not apply to the remainder of the counts. Some of the accused also submitted that becausecounts 1-9 were motivated by different and disparate things, it could not be said that they were offences of a similar character. 8. I am inclined to accept the submission of the accused in respect of sub- paragraph (b). That is, I am not disposed to find that the relevant "set of circumstances" for the purpose of s 29(1)(b) and 29(2)(b) can be as loosely defined as the criminal activities of the BFL Blacktown. However, I am inclined to agree with the prosecution in respect of counts 1, 2, 3, 4, 5, 8, 9, 10 and 30 that the offences were part of a series of offences of the same or similar character. Each of the counts that I have identified involved members of the BFL Blacktown discharging firearms in the course of the commission of serious criminal offences. Each involved members of the group acting at the direction of either Farhad or Mumtaz. My somewhat tentative view is that such similarities are sufficient to fall within the provision in s 29 (1)(c). 9. As to count 32, which is the charge of supplying a large commercial quantity of drugs, I am inclined to the view that this offence did not arise out of the same set of circumstances and did not form part of a series of offences of the same or similar character to the other offences on the indictment.However, that count did arise out of the same set of circumstances as counts 33 and 34. 10. The offences charged in counts 33 and 34 being the offences of possession of various weapons were offences that arose out of the same set of circumstances. That is particularly so where the gunparticularised in the relevant countsare (or may be) identified by witnesses or in the ballistics evidence as being a weapon used in one of the shooting counts. 11. Counts 6 and 7, which arise out of the purchase of the SKS assault rifle and the firing of it shortly thereafter, stands in a different category again. There is no evidence of which I am aware that this rifle was used in any of the offences subject of the charges in the current indictment. Given the view that I have taken to the Crown's contention that the set of circumstances for the purpose of s 29(1)(a) and 29(2)(b) can be cast as broadly as the criminal activities of the BFL at Bankstown and given that the purchase and firing of the gun is not an offence of the same or similar character to the offences involving shooting at people or using guns with the intention of intimidating people, I am inclined to the view that those counts are not captured by the provision in s 29(1) or s 29(2). 12. As to the offences of participating in a criminal group (counts 35 and 36), I am inclined to the view that the offences can properly be categorised as arising out of the same set of circumstances as the other charges. Each of the other charges appear to have involved the activities of that criminal group as alleged by the Crown. 13. In expressing my remarks in the preceding paragraphs, I have deliberately employed non-committal language. I have used expressions such as "inclined to the view" and "tentative finding" deliberately. Given that the contrary view is at least arguable in respect of each of the offences, the safest course is for me to proceed on an assumption – even in circumstances where I am inclined to the contrary view – that s 29 is at least capable of authorising a joint trial in respect of each and every one of the counts on the indictment. 14. Making that assumption will allow me to address the ultimate questions that arise on an application such as the present. That is, where do the interests of justice lie and will the accused be prejudiced and embarrassed in the conduct of the trial in such a way that could not be cured by direction to the jury? THE TENDENCY AND "CONTEXT" EVIDENCE 1. The Crown has served tendency notices in relation to each of the accused. It has abandoned its tendency case in relation to Bishop. Various problems were identified with some of the other notices in the course of the submissions relating to the issue of severance of the indictment. The accused have indicated that objection will be taken to the tendency evidence. 2. The parties jointly submitted that it was not necessary to resolve the tendency issue in advance of ruling on the question of severance and separate trials. However, somewhat incongruously, the parties agreed that the tendency issue was relevant to those questions. 3. The accused took similar, but somewhat disparate, approaches to the tendency evidence. Senior Counsel for Kalal submitted that I should take a "realistic view of the Crown case". [2] I take this to mean that I should approach the question of severance on the basis that there will be a deal of admissible evidence which goes beyond the evidence that supports the individual counts in the indictment and some of this evidence may be admissible as tendency evidence. Other counsel suggested or implied that I should form some tentative or preliminary view as to the admissibility of the evidence either as tendency or "context" evidence but not make any final ruling until "all the evidence is before the jury." [3] Mr Doyle (for Nasiri) identified deficiencies in the tendency notice served on his client and submitted that the tendency evidence would be rejected by a trial Judge. [4] Only Mr Driels (on behalf of Zarshoy) seemed to suggest that the tendency issue may need to be resolved (at least in his client's case) in order to properly determine his application for a separate trial in respect of counts 11 and 12. [5] The tendency notice served in respect of Bishop has been abandoned. 4. The learned Crown Prosecutor agreed that the tendency issue did not need to be resolved in order to determine the questions of joinder, severance and separate trials. [6] He acknowledged certain deficiencies in the notices that have been served to this point. However, he stressed that if the trials were separated or counts severed, there would be a body of evidence, or various pieces of evidence, relating to uncharged acts that may be relevant as tendency evidence or in order to place the events and the evidence of particular witnesses in context. 5. In summary, the Crown will press for the admission of evidence said to place the events in context and will seek to rely on this evidence either to put the events in their true context or to establish a tendency on the part of the various accused. Each of the accused objects to the evidence or, at least, parts of that evidence and the use of the evidence to prove the tendency in the notices. With the exception of Zarshoy, and perhaps Nasiri, the parties agreed that the question of tendency should be decided after the application for separate trials and severance is determined. It will be necessary for the prosecution to reconsider its position on tendency in the light of the problems identified in the notices and the rulings that are made in relation to the joinder or severance of the counts. However, to determine whether 1-10 and 30-31 are properly joined or whether they should be severed, it is necessary to reach a conclusion as to whether evidence supporting those counts is admissible in relation to counts 11-29, 32-34 and 35-36. 6. In the applications of Farhad, Mumtaz, Jamil and Kalal I propose to accept what is essentially a joint submission that the present application should be determined in the light of the likelihood that there will be a gooddeal of relevant and admissible evidence of criminal acts other than those charged in the particular counts and that some of that evidence may be admissible as tendency evidence. 7. In the case of Zarshoy, I will proceed on the basis that the evidence identified in the tendency notice is not admissible as tendency evidence. This is my preliminary view based on the (possibly limited) material that I have seen and noting that he is only charged in relation to one of the shooting offences. There is no other evidence of a tendency on his part to use firearms or to involve himself in violent offending. However, it is open to the Crown to re-agitate the question of tendency in the light of the rulings that I make in respect of the present applications and once it is in a better position to determine "the other evidence to be adduced" (see s 97(1)(b) Evidence Act 1995 (NSW)). 8. In the case of Nasiri, there are significant problems with the tendency notice as presently formulated. The notice identifies five tendencies in five dot points. The first dot point is of an extremely general nature ("to participate in the criminal activities of a criminal group"). In essence, the second dot point particularises the general assertion in the first dot point but contains particulars that appear to have marginal relevance to the crimes with which Nasiri presently stands charged (eg "drug supply operations" and "shooting of associates and members or associates of a rival group namely the BFL Bankstown Chapter.") The third dot point asserts a tendency that "at the time of the shooting of members or associates of the rival group he had the intention that the target be killed". None of the tendencies so far identified has significant probative value in terms of the facts in issue in Nasiri's case. He is not charged with shooting a member of a rival group or with any offence involving an intention to kill. The specific incident in relation to which he is charged is the Eagle Vale shooting (counts 4-5), offences which involved an attempt to rob drug dealers using guns and intimidation. As presently advised, I would not allow the Crown to lead tendency evidence against Nasiri in relation to the matters identified in the first, second and third dot point in the tendency notice. 9. The fourth and fifth dot points raise different considerations. They involve allegations in relation to which Nasiri has previously been sentenced on his pleas of guilty. These were an offence of demanding money with menaces and his participation in a criminal group (the BFL Blacktown). I leave open the possibility that evidence relating to those offences may be admissible as tendency evidence in the Crown case in relation to counts 4 and 5. However, the admissibility or otherwise of the tendency evidence does not affect the outcome of the present application insofar as Nasiri is concerned. the informANT WITNESSES 1. The Crown case relies substantially, although far from exclusively, on the evidence of twelveinformant witnesses. Most of these are former members of the BFL Blacktown. The credibility of all of these witnesses will be under substantial attack at the trial. Eight of the witnesses gave evidence in the course of the pre-trial hearings. Both the Director of Public Prosecutions and the Commissioner of Police sought orders calculated to protect the safety of these witnesses and evidence was tendered proving their vulnerability and the risks, expense and inconvenience involved in bringing the witnesses to and from court: seeR v Qaumi &Ors (AVL) [2015] NSWSC 1711. 2. In considering the various applications for severance and separate trials, an important factor in an analysis of where the interests of justice lie is the desirability that these witnesses are not required to give evidence on multiple occasions. the ballistics evidence 1. One factor militating in favour of a joint trial is that ballistics evidence suggests that particular firearms were used in more than one of the shooting incidents. This creates a connection between the counts relating to those incidents. Separating the trials relating to these counts would result in some duplication and repetition of the ballistics evidence. Of the eight to ten firearms referred to in the evidence, five were recovered. 2. Firearms that were recovered by police 3. A .38 revolver (serial number J117163) was seized by police on 7 November 2013 from the rear right passenger foot-well of motor vehicle CPQ20C in Railway Street, Parramatta. This was shortly after the shootings at the Chokolatta Café. The prosecution says that the ballistics evidence will suggest that this gun was used in the Castlereagh incident (counts 8-10), the Revesby Heights shooting of Mahmoud Hamzy (counts 11-13) and the Chokolatta Café shooting (counts 20-26). Kalal's fingerprints were located on this revolver and his DNA recovered from items located in the car. 4. A Bentley sawn-off shotgun (serial number A548924) was allegedly used in the Winston Hills shooting of Odisho (counts 14-16) and the Chokolata Café shootings. This firearm was also seized by police on 7 November 2013 from the front passenger foot-well of motor vehicle CPQ20C in Railway Street, Parramatta. Jamil's fingerprints were recovered from a purple plastic bag found underneath the shotgun. 5. A .38 revolver (serial number D338749) was used in the Revesby Heights shooting and was later recovered in a bag of guns and drugs seized by police on 12 December 2013 (counts 32-34). 6. A Mossberg sawn-off shotgun (serial number H416154) was used in the Eagle Vale incident (counts 4-5) and the Zakaria shooting (counts 17-19). It was also found in the bag of guns and drugs by police on 12 December 2013. 7. A .38 Revolver (serial number 798127) was used in the murder of Joseph Antoun (count 30). This firearm was found in the possession witness K and seized by police on 3 January 2014 at Orchard Hills (count 31). Firearms referred to but not recovered 1. The firearm allegedly used in the Wentworthville shooting (counts 1-3) was not recovered. However, six 9mm Parabellum calibre fired cartridge cases were recovered from the scene and each bore a Winchester stamp. A ballistics expert is expected to give evidence that one impact damaged bullet recovered was .38 calibre bullet. The calibre of another bullet was unable to be identified. 2. The SKS assault rifle allegedly purchased and test-fired at Pendle Hill (counts 6-7) was not recovered. However a shell casing located at the scene was identified to be a 7.62 x 39mm Calibre fired cartridge case. The expert evidence suggests that this type of ammunition is known to be used in SKS assault rifles. 3. No .45 calibre pistol was recovered. However ballistics evidence concerning material recovered at the scene suggests that the same weapon was used in both the shooting of Anthony Elkadi at Greenacre Road (counts 28-29) and the Hamzy shooting at Revesby Heights. 4. Witness I refers to possessing a .38 revolver in the course of the Odisho shooting at Winston Hills. It appears that this gun was not recovered. 5. Witness I says he obtained a 0.38 Revolver for use in the Zakaria shooting at Winston Hills. However, that gun was not fired and appears was not recovered. legal PRINCIPLES and an overview of the submissions 1. The statutory tests are set out in ss 21 and 29 of the Criminal Procedure Act. I have already set out s 29 in paragraph [83] above. Section 21 relevantly provides: "21(2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment." 1. The "interests of justice" in s 29(3) is an expression of very wide import and the provisions provide the Court with a wide discretion to make orders for the severance of counts and the conduct of separate trials of individual accused. The provisions, the cases decided under ss 21 and 29 and the common law which precedes them, require the court to bring to account a wide range of considerations and factual circumstances. 2. In R v Symss [2003] NSWCCA 77 at [68] Sheller JA (with whom James J and Smart AJ agreed) said: "The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts." 1. This is a particularly significant factor in the present case and both sides have mounted arguments based around such practical considerations. The prosecution has emphasised the fact that its case is reliant on the twelve informant witnesses. Because these witnesses require special arrangements to ensure their attendance and safety, there is a powerful reason to attempt to ensure that they are required to give evidence on one occasion or, if that is not achievable, on as few occasions as possible. On the other hand, a number of the accused point to the fact that they are charged with very few of the offences on the thirty six count indictment and that if the case proceeds as proposed by the prosecution they will be required – at great expense to the community via the NSW Legal Aid Commission – to sit through a trial that will last for many months when the evidence touching upon them will be in very short compass. This is a very potent consideration in the cases of Nasiri, Bishop and Zarshoy, each of whom is charged with two or three specific offences as well as the general offence of participation in the criminal group (and Nasiri has been discharged in relation to that offence). It is also a relevant consideration for Kalal and Jamil Qaumi, each of whom stands charged with far fewer offences than do Farhad and Mumtaz. 2. In R v Assim (1966) 2 QB 249, Lord Sachs attempted (at 261) to describe a general principle at common law: "As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together." 1. The NSW Court of Criminal Appeal cited this passage with approval in R v Annakin&Ors(1989) 17 NSWLR 202; (1988) 37 A Crim R 131; and observed at 207: "In the ultimate, each case must be dealt with according to the evidence and by reference to the considerations relevant to whether prejudice would be caused so as to prevent the accused being given a fair trial." 1. In Regina v Patsalis&Spathis (No 1) [1999] NSWSC 649; (1990) 107 A Crim R 432 at [6] Kirby J said: "There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered (R v Oliver (1984) 57 ALR 543)." 1. In terms of separating the trials of individual accused, "separate trials may be appropriate where the evidence to be led against one accused is significantly different from that to be led against another": Annakin at 139 citing Guldur (1987) 8 NSWLR 12 and The Queen v Darby[1962] HCA 32; 148 CLR 668. The principles were encapsulated in the following passage from Hunt J in R v Middis(Supreme Court (NSW), 27 March 1991, unrep) which is often referred to in later authorities: "Briefly, the relevant principles are that: 1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and 2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and 3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial." 1. In R v Pham [2004] NSWCCA 190, Adams J discussed the term "immeasurably" stating (at [39]-[40]): "Two phrases in this summary need some explanation. In ordinary speech, 'immeasurably' usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant 'significant, though incommensurable'. The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to 'positive injustice'. Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence. I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant's case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender's case is material. Indeed, the opposite would seem to be the case since, if the co-accused's case was weak, or weaker than the applicant's, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case." 1. Spigelman CJ agreed subject to some additional remarks made by RS Hulme J. All three Judges were satisfied that the joint trial conducted in that case had miscarried. 2. The existence of "cut-throat" defences is not generally a valid reason to order separate trials and may be a factor in favour of a joint trial: Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41 per Toohey J (with whom Mason CJ and McHugh J agreed on this point) at [88]-[89], contra Deane J at [80]. However, in a number of cases separate trials have been ordered where one accused makes out of court statements implicating a co-accused: see, for example, R v Iskandar [2011] NSWSC 1192 (Davies J), R v Singh (Supreme Court (NSW), 10 November 2011, Fullerton J, unrep), R v Lu and Pham [2007] NSWSC 1141 (Price J) and R v Roff [2015] NSWSC 1853. These are not relevant considerations here as there is no indication that any of the accused propose to point the finger at the other or has made any statements to the police implicating their co-accused. 3. There have also been many cases where consideration has been given to the principles and considerations relevant to the joinder of multiple counts in the one indictment. The Crown relied on the decision of Johnson J in R vKarimi; R v Khoury; R v Mir (No 1) [2013] NSWSC 156, where his Honour found that a number of counts (twelve) involving separate offences of robbery, murder, conspiracy to murder, possession of weapons and accessary after the fact (of murder) were properly joined. Applications for severance and separate trial were rejected. In particular, reliance was placed on his Honour's observation at [32]-[34]: "32. In circumstances where, within a period of days, it is alleged that persons were involved in planned criminal activities involving the use of weapons, including the .22 shortened firearm and the machete, and that there are links between these persons and weapons, I am satisfied that it can be said that the offences arise out of the same set of circumstances or are part of a series of offences of the same or a similar character. The linkage between persons and items and the readiness of members of the group, on the Crown case, to utilise these weapons are factors pertinent to this conclusion. 33. I do not consider that the Crown case is appropriately characterised as involving an attempt to rely upon tendency or propensity evidence. On the Crown case, there are direct links between persons, items and offences. Further, the evidence concerning the .22 shortened firearm and machete and their availability and use at the times of Counts 2, 3 and 6, are capable of bearing upon the state of mind of Karimi with respect to those counts. 34. I am satisfied that the requirements of s.29(1) have been met with respect to Counts 9, 10 and 11. I am not persuaded that the interests of justice require that these counts be heard and determined separately. The jury will be directed concerning the use of evidence adduced at the trial, by reference to the elements of the various offences charged in the amended indictment. I accept that the subject matter of Count 6 is capable of arousing strong emotions, however the jury will be given appropriate directions in that respect." 1. The Crown notes that these observations are relevant here where there are various connections between the weapons used in different counts and evidence of the "readiness of the group … to utilise these weapons". 2. Reference was also made to the decision of the Court of Criminal Appeal in Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 (Darwiche and Ors).That case had a number of features in common with the present case. In particular, the case involved multiple counts of murder and shooting with intent to murder. There were seven counts arising out of four shooting incidents that took place over a period of around four months. The offences arose out of animosity between two rival "families" each of which seemed to be involved in criminal activity including drug distribution and the use and possession of guns. The Crown noted that Johnson J (with whom McClellan CJ at CL and James J agreed) concluded that the counts were properly joined and that the trial did not miscarry. In relation to the reasoning in that case, the Crown submitted: [7] * In relation to the appellant who faced all seven charges the court determined that of significance was the interrelationship between the various incidents giving rise to charges and the course of events which were said to link these incidents would have led to Crown adducing all such evidence from the relevant witnesses [256]. * Separate trials of counts against Darwiche would not have exercised any damaging pieces of evidence. The narrative relevant to the charges involved a continuum of events over a period of time [257]. * There existed ballistics evidence linking firearms used in the shootings [258]. * In relation to the appellants only charged with counts 6 and 7 the Court accepted that if the trials had been separated the evidence explaining the background of hostilities would have been admitted [261]. * Further, the Crown was entitled to adduce evidence as to the background to the crime for which they were charged and the relationship between co-accused and the informer witnesses to permit an assessment by the jury of the question "How is it that these co-accused came to act in this way, as the Crown alleges-how did it come to this?" [263]. (It is significant that the background evidence or context evidence included other uncharged criminal acts such as drug dealing and acts of violence). * The ballistics evidence linking firearms was pertinent in a manner adverse to all the appellants [264]. 1. Apart from the number of charges and incidents, Darwiche and Ors had much in common with the situation prevailing here in respect of counts 11-25. The decision by Bell J (as her Honour then was) was challenged on an application under s 5F Criminal Appeal Act1912 (NSW) (Osman v R [2006] NSWCCA 196) as well as the appeal against conviction. An application for special leave to appeal to the High Court was dismissed:El Zayet and Others v The Queen [2011] HCATrans 342. However, the case says little about the desirability of joining charges such as those contained in counts 1-10 and counts 30-32. Further, a number of other shooting offences and one of the same offences charged against a brother were subject to orders for separation or were not subject to joinder: see Aouad and El-Zeyat v R [2011] NSWCCA 61, R v Abdul Darwiche[2006] NSWSC 922 [8] and R v Adnan Darwiche [2006] NSWSC 923. 2. The Crown also took me to the case arising out of the "Snowtown murders" in South Australia:R v Bunting and others (No 3) [2003] SASC 251.This arose out of a question of whether there was any earlier case where two disparate murders were joined in the one indictment. This is particularly relevant to the situation in the present case with respect to the joinder of count 30 (the Antoun murder). That murder, only charged against Farhad and Mumtaz, is alleged to have been a contract murder and (as far as one can know) had nothing to do with the dispute between the two chapters of the Brothers for Life. In Bunting, three accused were jointly tried in relation to eleven counts of murder.There was a powerful underlying unity between a number of the murders and the jury was entitled or permitted to employ similar fact reasoning and were directed accordingly: R v Bunting [2005] SASC 45 at [16] and [20]. While the South Australian case provides authority that a trial of unrelated murders may be authorised by the relevantly similar statutory regime, the factual matrix and the evidentiary circumstances are very different from the present case. 3. Counsel for the accused point to authorities that emphasise the potential, if not inevitable, prejudice involved in conducting a joint trial in relation to a number of different, even if related, criminal offences: see, for example, Sutton v The Queen [1984] HCA 5; 152 CLR 528at 541-2 (Brennan J) and De Jesus v The Queen [1986] HCA 65; 61 ALJR 1 at 3 (Gibbs CJ), 6 (Mason and Deane JJ) and Brennan J (7). Based on these authorities, the thrust of the defence submission is that unless the evidence proving one offence is admissible in proof of another, the counts should be severed because the prejudice cannot be cured by direction. This is put particularly forcefully in relation to the Antoun murder (count 30) but is also put in relation to counts 1-10 and the participation offences. 4. I should emphasise that while there was a concession by some counsel that the prosecution's position on joinder was stronger in respect of counts 11-29, it was not conceded that these counts should be heard together. The accused maintain that a trial encompassing all of the shootings (and related firearms offences) arising from the dispute with the Bankstown chapter would be unjustifiably burdensome on the accused and unduly confusing to the jury. The risk of impermissible use of the evidence and the prejudicial impact of the number of offences could not be cured by direction. 5. In addition to the applications to sever the counts on the indictment, some of the accused sought to be tried separately from their co-accused. There were various bases for these applications. 6. In particular, it was put that there is a real risk of the accused being found guilty "by association" because of their relationship with accused men such as Farhad and Mumtaz who stand charged with such a large number of extremely serious offences. It is put that direction cannot cure such prejudice. 7. Some accused mounted an argument that the case against them was significantly weaker than the case against the others and that there was a risk that the prosecution case would be made (to adopt the language of Hunt J in Middis) "immeasurably stronger" because of the large body of evidence to be adduced in the trials of the co-accused. Again, it is put that even the strongest direction would be incapable of curing this prejudice. 8. For those accused charged only with a small number of offences, it was put that the joint trial would constitute a physical and personal burden and result in a great and unnecessary expense to the community. Throughout the pre-trial hearings to date there have been a number of complaints that the transport arrangements necessary for such a large trial has meant that some of the accused (in particular Mr Zarshoy and Mr Kalal) have been required to wake extremely early in the morning (around 4am) and have not returned to their cell until late at night (around 9pm). While I have raised these concerns with the Department of Corrective Services, it seems from counsels' reports (which I accept) that there has been little or no improvement in the situation. Decision on severance 1. I have concluded that counts 1-10 and counts 30-31 should be severed from the present indictment but that the remaining counts on the indictment are properly joined and that it is in the interests of justice for the trials on the remaining counts to proceed jointly. The trial is to proceed in relation to the Hamzy murder (counts 11-13), the other offences arising out of the dispute with the Bankstown chapter (counts 14-29), the offences of possession of the guns associated with those shootings (counts 33-34) and the drugs found with those guns (count 32). 2. Subject to its election as to the particulars of the offences, I will permit the Crown to join counts 35-36 (the participation offences). Assuming the Crown so elects, the evidence will be limited to that which is admissible to establish the substantive charges. If the Crown seeks to conduct a more expansive trial in relation to counts 35-36, the decision on severance of those counts will be revisited. 3. Finally, I have determined that Bishop should have a separate trial in relation to the participation offence, such trial to be held with his trial in relation to the present counts 8-9 subject to any order for severance made by the District Court. 4. The trial in relation to the Antoun murder (counts 30-31) will commence at the conclusion of the joint trial. In accordance with the Director's undertaking to the Chief Justice, the remaining counts (1-10 and, if the Director so elects, 35-36) will be withdrawn in this Court and the Crown will present indictments in the District Court. 5. There are a number of reasons for reaching these conclusions. 6. I am not satisfied that the evidence to be led in support of counts 1-10 or counts 30-31 is admissible in support of the counts that remain on the indictment. I adopt a similar process of reasoning as that disclosed in the judgment of Bell J (as her Honour then was) in R v Abdul Darwiche [2006] NSWSC 922 especially at [9], [22], [24]-[29]. The fact (assuming it to be) that Farhad and Mumtaz accepted a contract to arrange the murder of Mr Antoun in December 2013 does not illuminate the differences between the two chapters of the BFL that led to the shootings of those associated with the Bankstown chapter between October and November of 2013. 7. Nor am I persuaded (on the limited arguments advanced) that the evidence of the earlier offences (counts 1-10) or the Antoun murder possess significant probative value as tendency evidence given the different nature of the events and the different tendencies involved in those events. Unless the tendency is cast as widely as a tendency to engage in criminal activity or a tendency to discharge firearms or something similar, the "extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" [9] is limited. While it has been held that tendency evidence under s 97 (unlike coincidence evidence under s 98 and similar fact evidence at common law) does not require there to be an "underlying unity" or "striking similarity" to be admissible, [10] it has also been held that the more general the tendency asserted the less probative value the evidence is likely to have. [11] Even if it is accepted that the evidence has significant probative value for the purpose of s 97, that probative value does not substantially outweigh the prejudicial effect that the evidence may have on the accused. [12] 8. I can envisage no direction that would engender confidence in the Court that a jury could put aside the relevantly prejudicial impact of conducting the two unrelated murder charges together, one involving what might be seen as a gangland war and the other that is cast as a contract killing. I have little doubt that any guilty verdict returned if these counts were run together in one trial would be tainted by the possibility that the jury was simply overwhelmed by the prejudice created by the joint trial. I have considered the Crown's submission, based on the observations of Martin J in R v Bunting and Ors (at [409]), that the jury is entitled to "the full story" rather than a "fragmented and distorted picture". However, such a submission might be made in any case. The essential questions in a case such as this are whether the evidence to prove one count is admissible to prove the other and whether the conduct of the trials jointly may be "productive of a miscarriage of justice": cfMakarov v R (No 3) [2008] NSWCCA 293at [54], [73]-[82]. That is a question of judgment to be made in the circumstances peculiar to each case. There is a certain danger in applying the findings and language employed by a trial Judge in a case as extraordinary and extreme as that which confronted Martin J in Bunting and Ors. 9. I have taken into account the fact that some of the ballistics links between the weapons used in earlier incidents and the shootings of the Bankstown BFL members will be lost. However, putting aside the testimony of the informants, these links for the most part concern the weapons rather than the accused. In any event, there will remain significant ballistics evidence relating to individual shootings and some links between the weapons used in the different counts. For example, the jury will have evidence that one of the guns used in the Hamzy shooting was also used the Chokolatta Café shooting and evidence that the shotgun used in the Odisho shooting was also used in the Chokolatta Café shooting. There will also be evidence that the other handgun and the shotgun used in the Hamzy murder was located in the bag of guns and drugs seized by police on 12 December 2013. The evidence will come from both the informant witnesses and witnesses with expertise in ballistics. One of the more significant pieces of evidence in terms of connecting the accused with relevant firearms is the seizure of the bag containing the guns and drugs. The counts relating to those guns (counts 32-34) will remain on the indictment and the evidence will be available for consideration by the jury. Other significant evidence connecting particular accused to the guns used in the offences that will remain on the indictment will be available to the jury. That will be in the form of fingerprint and DNA evidence. 10. I have also taken into account the inconvenience and possible danger to the witnesses in being required to give evidence on more than one occasion. The orders I propose will require most, if not all, of the informant witnesses to give evidence on more than one occasion. I have given this matter anxious consideration and the orders I will make minimise or alleviate that concern as much as possible, within the overarching requirement that each of the accused receive a fair trial according to the law. 11. Iconsidered, but rejected, the various applications for severance of counts 11 through to 29 from one another. I have contemplated various permutations and regimes under which this group of offences might be tried. 12. In particular, I considered the possibility of separating the proceedings in relation to the Hamzy murder/Ajaj shooting (counts 10-13) from all the remaining counts. This is the principle application made on behalf of Zarshoy. [13] However, evidence of the Hamzy murder is admissible in proof of the counts that follow. It provides not only the background and context of the subsequent shootings but also the motivation for those shootings. The true narrative of events that commenced with the Hamzy shooting on 28 October 2011 and continued until the shooting at Greenacre Road a month later - a total of five shooting incidents comprising counts 11-29 - cannot sensibly and fairly unfold before the jury unless the whole story is told. The Odisho, Zakaria and Chokolatta Café shootings took place over just 5 days, commencing less than a week after the Hamzy murder. 13. To employ the language of Johnson J in the binding authority of Darwiche and Others, if those counts were separated, the jury would be left to wonder "how is it that these co-accused came to act in this way?" and "how did it come to this?" [14] 14. Counts 33 and 34 involve the seizure by police on around 12 December 2013 of a bag containing drugs and guns. One of the guns seized was the Mossberg pump action shotgun (count 33) that was allegedly used in the Zakaria shooting (counts 17-19) as well as the earlier and unrelated Eagle Vale shooting (counts 4-5). The other gun was the Smith and Wesson .38 revolver(count 34) allegedly used in the Hamzy murder. These gun possession charges "arise out of the same set of circumstances" as the other charges surrounding the shootings directed at associates of the Bankstown chapter of the BFL. Proof of the circumstances of the seizure of these guns, and the evidence of the informants as to how those guns were transported from place to place and at whose direction, is relevant and probative of the charges in which the guns were allegedly used. It is in the interests of justice that those counts be joined and heard together. Most or all of the evidence admissible to prove those offences would be led in the trial in any event. I am not satisfied that any of the accused will be prejudiced or embarrassed in their defence by the presence of those counts on the indictment. 15. I have considered severing count 32; the allegation of possession of a large commercial quantity of a prohibited drug. However, the drugs were found in the same bag as the guns referred to in the preceding paragraph (i.e. counts 33-34) and severance of these three counts would create unnecessary expense and duplication. The same evidence to be led in proof of possession for the purpose of counts 33-34 will be adduced to prove that element of the offence charged in count 32. The remaining elements (whether the items are firearms or drugs respectively) are largely technical and unlikely to be in dispute. In view of the seriousness of the criminality involved in the counts that will run together and the fact that there will be at least some evidence of the group's involvement in drug supply in any event, the accused will not be embarrassed or prejudiced in the conduct of their defence by the inclusion of this count. Any prejudice that might arguably arise can be cured by direction. 16. I have considered whether the counts alleging participation ina criminal group (35 and 36) should be severed. My provisional view is that they should not, subject to the Crown making an election as the particulars of the offence. It may be that the matter requires further submissions and an understanding of the case that the Crown proposes to present in relation to those counts in light of my rulings in relation to the substantive charges. What I do not propose to allow is a trial in which wide-ranging evidence is adduced to establish the participation offences beyond that which is admissible to establish counts 11-29 and 32-34. If the Crown elects to limit the evidence to establish participation to those matters, I would not sever those counts. If the Crown elects to conduct the participation offences by reference to the full extent of the criminality that is disclosed in the various timelines and chronologies, I would be inclined to the view that the accused would be embarrassed or prejudiced in the conduct of their defence of the substantive charges. It would be impossible to fashion directions to overcome the prejudice of what would become an unmanageable and confusing contest as to the activities of the various accused both collectively and individually over a period of around six months. While the prosecution is unquestionably entitled to charge these offences under s 93T in view of the evidence available, I have some difficulty in identifying the forensic or legal necessity of doing so in light of the seriousness of the offences with which the accused are otherwise charged. However, that is ultimately a matter for the prosecution authority. At this stage I simply put the Crown to its election as to the nature of the case it seeks to run in the light of this judgment and these reasons. SEPARATE TRIAL applications and other applications by individual accused 1. In addition to the applications for severance, several of the accused seek to be tried separately from their co-accused. Bishop 1. As a result of the ruling that counts 8 and 9 are to be severed from the indictment, those matters will not proceed in this Court in accordance with the Director's undertaking. Ms Evers invites me to make a ruling that he receive a separate trial in the District Court. That is, in addition to the ruling that counts 8 and 9 be severed from the present indictment, it is submitted that I should order that he be tried separately from his co-accused in respect of those counts (that is, Farhad, Mumtaz and Jamil Qaumi). 2. While there is some force to Ms Evers submission on this issue, particularly her submission in relation to the relative strength of the case against each of the accused, I do not propose to rule on that application. It is a matter more properly disposed of in the court in which the trial is ultimately to proceed. It may be that the prosecution will decide to proceed separately against Mr Bishop for practical reasons. 3. However, it is appropriate that I deal with Bishop's application that he receive a separate trial from the co-accused in relation to the participation offence with which he is charged in count 36. 4. I accept the submission of Ms Evers that the case against Bishop in relation to this offence is significantly weaker than that confronting the other accused. While official membership of the group is not a prerequisite for proof of the charge, the evidence demonstrates that the prosecution case against each of the other accused is significantly stronger because their names are contained on a list of names recording payments of fees for membership of the group. The cross-examination of relevant informant witnesses on the voir dire also demonstrated that the evidence of his membership of the groupis not particularly strong. 5. It seems that the high point of the Crown case against Bishop is the evidence of his participation in the Castlereagh offences. I am not persuaded that the case in relation to those offences is as weak as Ms Evers portrays it, but it certainly has some difficulties. In any event, the counts relating to those events will be severed from the indictment so the existence of that evidence does not impact on whether Bishop should be tried separately. 6. It would be a significant burden to require him to remain in the dock throughout what will be a quite lengthy trial in circumstances where the evidence against him is very confined. It would also involve a significant and unwarranted expense to the community. 7. Finally, there is a real risk that he would be prejudiced and embarrassed in his defence if he stands trial with the co-accused in circumstances where they are charged with such a diverse range of very serious offences and where the case against them appears to be relatively strong. 8. For those reasons I will make an order that Bishop be tried separately from his current co-accused. 9. To be clear: this is not an order that the participation offence be severed from an indictment containing the aggravated break and enter and firearms offences charged in counts 8 and 9 of the current indictment or from any other offence charged in an indictment presented in the District Court. The form and content of the trial to be conducted against Bishop in the District Court will be a matter for that Court to determine. Nasiri 1. Because of the severance of counts 4 and 5, and his discharge on count 36, the matter of Nasiri will proceed in the District Court. 2. As in the case of Bishop, any application for him to be tried separately from his co-accused in respect of those counts (Farhad and Mumtaz Qaumi), and any application for severance in relation to any other count contained on an indictment presented, should be dealt with in the District Court. It may be that the prosecution will proceed against him individually while the more serious charges against Farhad and Mumtaz are resolved. Kalal 1. In addition to joining in the application for severance and adopting the submissions of Senior Counsel for Farhad in that regard, Kalal also seeks an order that he "be tried separately for all offences he is charged within the indictment". [15] 2. Kalal is not charged with either of the murder offences and Mr Nicholson SC submits that a proper approach to the question of severance would result in all of the non-murder charges being returned to the District Court. That would remove Kalal, who is charged in relation to his involvement in the Zakaria and Chokolatta Café offences (counts 17-27), from the current proceedings. Insofar as this was an application for severance of counts, I have accepted some of these submissions but rejected others. However, it is also an application for a separate trial in relation to those offences and that application requires separate consideration. 3. Kalal is charged in relation to the Zakaria shooting (count 18-19), the Chokolatta Café shooting (counts 20-26) and possession of the .38 revolver used in the latter shooting. It was submitted that there is incurable prejudice arising from the evidence relating to the events giving rise to counts 1-10 and the Antoun murder (count 30) and that the inclusion of the Hamzy murder "compounds the initial prejudice." [16] It was submitted that Kalal's association with the other members of the BFL would create prejudice in that a jury would inevitably conclude that a person associating with such a group "must necessarily be a person of bad character, or more accurately, appalling character." [17] Emphasis was placed on the fact that the evidence is that Kalal did not join the group until August 2013. 4. I accept that there is a risk of prejudice as submitted by Senior Counsel. However, a good deal of that risk is mitigated by the severance of counts 1-10 and counts 30-31. As to the inclusion on the indictment of the Hamzy murder, and the submission that Kalal should be subject to a trial separated from his co-accused who are also charged with that crime, it must be remembered that the offences with which he is charged are closely connected in time and content to the other shooting incidents that arose out of the pre-emptive strike on the Bankstown chapter. Even if he were tried separately, the Crown would be entitled to lead at least some evidence of those other shootings to establish the motive for the offences with which he is charged and the context in which they occurred. If it is able to, the prosecution is entitled to establish that Kalal knew the details of the Hamzy murder. 5. There is no relevant or incurable prejudice or embarrassment in the fact that the jury would hear evidence of those other shootings in a joint trial. In coming to that conclusion, I have considered the evidence suggestingthat Kalal may have had some "unwitting" role in the lead up to the Hamzy shooting. [18] It will be necessary to direct the jury of the limited purpose of any such evidence in the case against Kalal and to provide other directions to protect him from unfair prejudice arising from his association with those accused of the Hamzy killing. 6. It cannot be suggested that the case against the co-accused (Farhad and Mumtaz for example) is substantially stronger than the case against Kalal or that the evidence in each case is significantly different. The case against all of the accused is based largely, although far from exclusively, on the evidence of the informant witnesses. Further, in relation to counts 17-27, there is CCTV footage and fingerprint and DNA evidence that appears to connect Kalal to the Chokolatta Café shooting. Along with the evidence of the informants, the case against him appears to be a strong one. 7. If the trial were to proceed on all 36 counts, there would be considerable force in the submissions made in relation to the prejudice that would be suffered by Kalal. However, most – not all –of that force evaporates once it is accepted that the first trial in this Court should be restricted to those counts arising out of the events surrounding the violent conflict between the Blacktown BFL and their Bankstown rivals (that is counts 11-29 and associated weapons and drugs charges). Direction to the jury is capable of ensuring that the evidence is used appropriately and that there be no unfair prejudice in the conduct of these counts together. 8. For those reasons, I do not propose to accede to Kalal's application that all of the non-homicide counts be severed or that his trial should be separated from the co-accused in relation to the counts with which he stands charged. Zarshoy 1. Zarshoy is only charged in relation to the Hamzy murder (counts 11-12). He seeks an order that all other counts on the indictment be severed from the indictment. [19] I have considered his submissions based on the "sheer size" and length of the trial, the possibility of the confusion of the witnesses noting that there is "a limited number" of witnesses who give evidence in relation to the Hamzy murder and the risk of "guilt by association". 2. Mr Driels also emphasised that Mr Zarshoy, in spite of only being charged in relation to the one incident, is subject to a particularly onerous custodial situation and faces being "subjected to a long-term deprivation of sleep, no rest, no recreation for over six (6) months." [20] The reference to the "six months" is predicated on all of the counts running together. The orders I propose will alleviate this concern to some degree. I expect, without having the benefit of estimate provided by counsel, that the first trial will be significantly shorter than six months. However, it will remain a lengthy trial and it is extremely troubling that Mr Zarshoy is in a position, through no fault of his own, that the transport arrangements are such that he is being denied a reasonable opportunity for sleep. I expect to be kept apprised of the situation and will deal with any application designed to reduce the burden if and when it is made. It is important that his physical and psychological health is not endangered by the process of the trial. 3. I have considered whether Zarshoy should be tried separately in relation to counts 11-12 and 36 (although that is not his primary application). I have done so on the basis of the onerous conditions of his incarceration and transport arrangements and the possible prejudice arising from the admission of evidence against co-accused which is not admissible against him and may cause prejudice and embarrassment in the conduct of his trial. Any potential prejudice that arises from evidence of the events that follow the Hamzy murder can be cured by direction. The jury can be clearly directed as to what evidence is admissible against each accused and will be directed clearly and emphatically that the evidence of the other shootings is not to be used in support of the case against Zarshoy and that his involvement is limited to the events surrounding the Hamzy shooting. 4. I am satisfied that it is in the interest of justice that he be tried along with those accused who are charged with the various shooting offences that give rise to counts 14-28. I am not satisfied that he will be prejudiced or embarrassed in the conduct of his defence or that the case against him will be made immeasurably stronger by the admission in his trial of evidence that might otherwise not be admissible against him. As I have said, any such prejudice can be cured by direction. Jamil Qaumi 1. Jamil's submission is that there should be two murder trials in this Court and all other offences should be returned to the District Court. [21] Mr Brewer emphasises the complexity of the trial proposed by the Crown and submits that it is unduly complex to realistically expect a jury to follow directions. He said it would create an unwarranted disruption to their lives. 2. He emphasises that Jamil was overseas before 11 September 2013 and arrested on 7 November 2013. Accordingly, his involvement is limited to 2 months while the indictment spans a period of six months. 3. For the same reasons that I have identified in respect of Kalal and Zarshoy, I am satisfied that Jamil should be tried together with the other accused charged in respect of the counts arising out of the shootings of people associated with the Bankstown chapter of the BFL (that is, Zarshoy, Kalal and AC). ORDERS 1. For those reasons I make the following orders 2. Counts 1-10 inclusive and counts 30 and 31 are to be severed from the indictment. 3. Reserve the question of whether counts 35-36 should be severed from the indictment. 4. Direct the prosecution to indicate its election as to the particulars and basis upon which counts 35-36 are to proceed in the light of this judgment. 5. Order that the accused John Bishop is to be tried separately from the other accused in relation to count 36. 6. All remaining applications for severance and separate trials are refused. ********** Endnotes 1. The indictment originally charged a third offence against him but he was discharged on that count. 2. Transcript (T) 704. 3. See for example Mr Stratton SC at T 687, Mr Brewer at T 694-695. 4. T 709. 5. T 698, 703. 6. T 715. 7. Written submissions of the Crown Prosecutor p. 3. 8. At paragraph [2] her Honour noted an earlier judgment in which she ordered a separate trial. I have not been able to access to this judgment. 9. See the definition of "probative value" in the Dictionary to the Evidence Act1995 (NSW). 10. See the authorities collected in Hughes v R [2015] NSWCCA 330 at [166]. 11. See El-Haddad v R [2015] NSWCCA 10 at [70] Leeming JA (with whom McCallum and RA Hulme JJ agreed) and Sokolowskyj v R [2014] NSWCCA 55 at [41]. 12. S 101(2) EvidenceAct1995 (NSW). 13. T 696. 14. Darwiche and Others at [263]. 15. Written submissions of Mr Nicholson SC dated 7 December 2015; T 704, 708. 16. Written submissions pp 10-11. 17. Written submissions at p 11 [44]. 18. Written submissions at p 9 [35]-[39]. 19. T 696. 20. Written submissions of MrDriels. 21. T 694. 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: 22 November 2016