Supreme Court New South Wales Medium Neutral Citation: R v Qaumi & Qaumi (No 11) [2017] NSWSC 95 Hearing dates: 2 December 2016, 13 – 14 February 2017 Date of orders: 14 February 2017 Decision date: 14 February 2017 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Evidence admissible for a limited purpose Catchwords: EVIDENCE – admissibility – actions of one accused admitted against both accused – no objection taken – objection taken during closing address – flexibility in procedure during Judge alone trial – evidence of one accused moving murder weapon some weeks after the murder – whether act done in furtherance of common purpose – co-conspirators' rule – circumstantial case – evidence linking accused to murder weapon – evidence admissible for a limited purpose – evidence not admissible to prove consciousness of guilt against accused not present Cases Cited: R v Eccles and Merritt (1881) 7 VLR (L) 36 R v SU and Ors (1995) 129 FLR 120 Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 Category: Procedural and other rulings Parties: The Crown Farhad Qaumi Mumtaz Qaumi Representation: Counsel: K McKay (Crown) J Stratton SC & M Curry (Accused – F Qaumi) P Young SC (Accused – M Qaumi) Solicitors: Solicitor for the NSW DPP (Crown) Archbold Legal (Accused – F Qaumi) George Sten & Co (Accused – M Qaumi) File Number(s): Farhad Qaumi – 2014/006809, 2014/315203; Mumtaz Qaumi – 2014/315260 Ex Tempore Judgment (REVISED) 1. HIS HONOUR: In the course of his closing address, Senior Counsel for Mumtaz Qaumi raised an objection to the entirety of the evidence of Witness K insofar as it was tendered against Mumtaz Qaumi. The evidence in question concerns events that took place on 3 January 2014. It will be recalled that the murder took place on 16 December 2013, when Witness L shot Joseph Antoun at his home in Strathfield. 2. Witness L gave evidence that after the murder he hid the murder weapon, a 0.38 snub nose revolver, under or near a tree near his house in Orchard Hills. Witness L went on to give evidence that the following day, or on the days thereafter, Farhad and Mumtaz Qaumi attended his home and asked him to give them details of what had happened when the murder took place. Amongst other things, Witness L told the accused where he had hidden the gun and took them to a location where he alleges that they provided him with plastic bags in which to wrap the gun. The gun was then returned to the location under the tree. 3. Subsequently, Witness L was arrested for a breach of parole and there is a conversation recorded by listening device in which Witness L said to another member of the Brothers For Life words to this effect: "Tell J tell his brother we gonna move house. Tell him we gonna move house this week, you know what I mean. Tell him the shit is still there and tell him the money will be dropped off to his missus." 1. It seems from the transcript, although it is not entirely clear, that the words "shit" and "money" may have been spoken in a foreign language. I say that because they are in square brackets within the transcript and other transcripts tendered in the proceedings use square brackets to indicate the English words that are in fact the result of a translation. 2. It is in that chronological sequence that the evidence of Witness K is to be considered. His evidence, part of which is supported by surveillance evidence and telephone intercept evidence, is that on 3 January 2014 he was asked to meet with Farhad Qaumi. At the meeting, Farhad Qaumi asked him to follow in his work van, a four-wheel drive vehicle driven by a person who Witness K was unable to identify. 3. The two cars travelled to somewhere west on the M4 Motorway and ended up in a street that seems to be surrounded by bushland. It was dark at the time and Farhad Qaumi entered the bushland looking for something. He emerged with a package which Witness K described but was unable to see the contents of. However, from the feel of the package Witness K formed the view or believed that the package contained a firearm. He subsequently pleaded guilty to possession of a firearm. 4. He was instructed and did place the package into his work van and then inside a box, which contained a Foxtel or Austar set top box. On his evidence, he was instructed to drive east on the M4 and to contact Farhad Qaumi when he returned to the area around Granville where he lived. 5. He never made it to Granville because the police pulled him over, searched his car and located the box containing the gun. Subsequently, the gun was subjected to ballistics analysis and there was no dispute in the trial that the gun found within the box within the van was the same gun that was used to murder Joseph Antoun. 6. When the evidence was first admitted on 2 December 2016, specific inquiry was made of the Crown Prosecutor whether the evidence was admitted against both accused under what is sometimes called the co-conspirators' rule, or the general principles of joint criminal enterprise, whereby the acts of one accused are admissible against the other once there is established to be reasonable evidence of "preconcert". The Crown confirmed that that was the basis upon which the evidence was admitted against Mumtaz Qaumi, notwithstanding that the crime of murder was already complete and that Mumtaz Qaumi was not present when Farhad Qaumi did what Witness K alleges that he did. Senior Counsel for Mumtaz Qaumi agreed that the evidence was admissible against both accused. 7. The address of the Crown commenced last week and concluded on Thursday 9 February 2017 at which stage Senior Counsel for Mumtaz Qaumi commenced his address. For reasons unrelated to the trial, the Court did not sit on Friday and Senior Counsel's address continued yesterday, that is, Monday 13 February 2017. 8. It was during the latter part of his closing address that Senior Counsel raised the objection to the evidence of Witness K. The learned Crown Prosecutor, with his customary candour and fairness, did not seek to raise any contention that Mumtaz Qaumi should be locked out from raising the objection, even though the Crown address had concluded and the evidence in the case had closed late last year. It being a judge alone trial, it was suggested, and I accept, that the rules can be rather relaxed to ensure fairness to the accused in circumstances such as this. 9. The Crown accepted that the matter must be determined on its merits and based on the principles of joint criminal enterprise and what is often described as the co-conspirators' rule. In short, the law is that: "[w]hen the case for the prosecution is at the commission of the crime when a number of men acted in preconcert, reasonable evidence of preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other". [1] 1. There has not been any dispute in the present case that there is a body of evidence at least capable of establishing that Farhad and Mumtaz Qaumi acted together or in preconcert. Much of that evidence is disputed, but it is accepted that such evidence exists. Rather, the question, as it was raised initially, was whether the crime in question (being the murder of Joseph Antoun) had essentially come to an end so that the act of Farhad Qaumi in retrieving the gun and giving instructions to Witness K as to what to do with it was not an act admissible against Mumtaz Qaumi because it was not an act done in furtherance of the common purpose. 2. Senior Counsel pointed to the fact that when Witness L identified the location of the weapon to Farhad and Mumtaz Qaumi, there was no suggestion that Farhad or Mumtaz Qaumi would later recover the gun. Whilst that is true, the submission ignored the fact that Witness L was arrested after that and it was in that temporal or chronological context that Farhad Qaumi approached Witness K and arranged for the recovery of the weapon. Precisely what was to happen to the weapon or the purpose of Farhad Qaumi in recovering it is not known because, needless to say, the evidence is silent on that subject. The police intervened and arrested Witness K and located the weapon. 3. The importance of the evidence is that it provides some link between Farhad Qaumi and the weapon subsequently identified as the murder weapon. Much has been made by both accused as to the absence of any forensic evidence, such as fingerprints or DNA, linking them to the weapon. I was, and am, unable to accept that a crime such as murder committed in the circumstances alleged here has some easily or readily defined end point. For example, plainly the acts of driving the perpetrator from the scene or hiding the murder weapon are acts done in furtherance of the common purpose. Similarly, acts done after the event, such as hiding a weapon or burning clothes, are acts done in furtherance of the common purpose. 4. While there are obviously questions of degree involved, I have no doubt, as a matter of fact and inference, that the act of Farhad Qaumi in recovering the gun after the arrest of Witness L was an act done in furtherance of the agreed crime of murder. 5. There are authorities supporting that proposition and, in particular, I refer to the case of R v Eccles and Merritt [2] in which it was held that a statement made to the police by a conspirator after the conspiracy had come to an end was admissible against the other conspirator "if what was said was for the purpose of preventing the recovery of the property fraudulently obtained by the prisoners, it was in furtherance of the objective the conspirators had in view". [3] That case was cited with approval by the Victorian Court of Appeal in R v SU & Ors [4] where the Court (Winneke P, Hayne JA and Southwell A-JA) said at 162: "It is well-established that evidence of the acts and declarations of one conspirator is admissible against another even where that occurred after the principal object of the conspiracy has taken place if those acts and declarations were in furtherance of the common design." 1. The precise motive of Farhad Qaumi in doing what it is alleged he did on 3 January 2014 cannot be known, but an inference can be drawn that his actions were part of the criminal enterprise in which he and his brother were allegedly engaged. 2. The argument in relation to the admissibility was deferred to allow Counsel to consider the authorities and their position and, when the argument resumed this morning, Senior Counsel for Mumtaz Qaumi conceded that the evidence of Witness K, was admissible. However, he submitted that its admissibility ought to be limited or, rather, that the use to which it can be put must be limited. In particular, he invited me to proceed on the basis that there is no evidence, and I cannot find, that Mumtaz Qaumi had any knowledge of, or played any part in, Farhad Qaumi instructing Witness K to move the gun on 3 January 2014. 3. It appears that the Crown Prosecutor concedes that that position is correct. I also accept the correctness of that proposition also and will not use the evidence in that way in determining whether the Crown has proved its case against Mumtaz Qaumi beyond reasonable doubt. In particular, insofar as the evidence might be said to demonstrate a consciousness of guilt, it is not able to be used in that way in Mumtaz Qaumi's case. 4. However, the evidence remains admissible as part of the circumstantial case against Mumtaz Qaumi and, in particular, it is admissible to establish a link between the accused and the gun that Witness L claims to have shown Farhad Qaumi and Mumtaz Qaumi on the day after the murder, and also the fact that that gun was the weapon used in the murder. Senior Counsel for Mumtaz Qaumi concedes it is admissible on that basis. Senior Counsel also concedes that it is admissible as a piece of evidence, along with other pieces of evidence, that has some capacity to support the credibility of the account given by Witness L as to what he did with the gun after the shooting. 5. Accordingly, and what appears now to be almost agreed between the parties, the evidence will remain admitted in the trial against Mumtaz Qaumi but will be limited in its use as described. ********** Endnotes 1. Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 at 6. 2. (1881) 7 VLR 36. 3. Stawell CJ at 41. 4. (1995) 129 FLR 120. 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: 17 February 2017