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Aouad and El-Zeyat v R

Aouad and El-Zeyat v R

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Case Copied 8 April 2011 87 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Aouad and El-Zeyat v R [2011] NSWCCA 61
Hearing dates: 29/6/10, 30/6/10, 9/7/10, 22/3/11
Decision date: 08 April 2011
Before: McClellan CJ at CL at 1
James J at 2
Johnson J at 402
Decision:
In the case of each appellant:-
1. Allow the appeal against conviction.
2. Quash the conviction.
3. Order a new trial.

Catchwords: Criminal Law - direction by trial judge that jury could look for independent support for the evidence of one indemnified witness in the evidence of another indemnified witness - evidence of comfit identification - fresh evidence - failure by prosecution to disclose to defence material relevant to credibility of Crown witness.
Legislation Cited: Evidence Act (NSW) - ss 38, 59, 66(2), 106, 114, 115(5), 137, 164, 165
Evidence Act (Cth)
Criminal Appeal Rules - r 4
Customs Act
Listening Devices Act
Criminal Appeal Act - s 6(1)
Cases Cited: Pollitt v The Queen (1991-1992) 174 CLR 558
R v Chen & Ors (2002) 130 A Crim R 300
R v Ngo [2003] NSWCCA 82 (reported in part at (2003) 57 NSWLR 55)
Conway v The Queen (2001) 209 CLR 203
Kanaan & Ors v R [2006] NSWCCA 109
Kanaan (2007) HCA Transcript 402 (3 August 2007)
R v Darwiche & Ors (2006) 166 A Crim R 28
Graham v The Queen (1998) 195 CLR 666
R v Barbaro (2000) 112 A Crim R 55
R v El-Hayek [2004] NSWCCA 25
R v Abou-Chabake (2004) 149 A Crim R 417
R v Reardon (2004) 60 NSWLR 454
Cornwell v R (2010) NSWCCA 59
Grey v The Queen (2000) 201 CLR 414
Wilde v The Queen (1988) 164 CLR 365
Weiss v The Queen (2005) 224 CLR 300
Category: Principal judgment
Parties: Ramzi Aouad (Appellant)
Nasaem El-Zeyat (Appellant)
Regina (Respondent)
Representation: Counsel:
P Hamill SC, C Smith (Appellant Aouad)
M Ramage SC, I McLachlan (Appellant El-Zeyat)
D Woodburne SC, J Girdham (Respondent)
Solicitors:
George Sten & Co (Appellant Aouad)
Nedim Lawyers (Appellant El-Zeyat)
S O'Connor (Respondent)

File Number(s): 2005/2678, 2005/2620
Decision under appeal

Before:

Bell J

File Number(s):

2005/2678, 2005/2620

JUDGMENT

McCLELLAN CJ AT CL: I agree with James J.

JAMES J: Ramzi Aouad and Nasaem El-Zeyat appealed against their convictions on a charge that on 30 October 2003 at Punchbowl they murdered Ahmed Fahda. A trial in which they were found guilty was conducted before Bell J (as her Honour then was) and a jury between 31 March 2006 and 16 May 2006. A third accused Adnan Darwiche, who was charged with being both an accessory before the fact and an accessory after the fact to the murder of Adam Fahda, was acquitted on both of those charges. There was no application by either appellant for leave to appeal against the sentence imposed on him.

At the trial the Crown case, very broadly stated, was that shortly after two o'clock in the afternoon of 30 October 2003 the deceased had been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWCCA 61
Decision Date: 08 April 2011

CaseChat Overview and Summary

In the case of Aouad and El-Zeyat v R, the appellants were convicted of serious criminal offences and appealed against their convictions. The nature of the dispute centred around the trial judge's direction to the jury that they could consider the evidence of one indemnified witness as independent support for the evidence of another indemnified witness, as well as the failure of the prosecution to disclose material relevant to the credibility of a Crown witness. The case was heard in the High Court of Australia.

The primary legal issues the court was required to decide were whether the trial judge's direction to the jury was appropriate, and whether the prosecution's failure to disclose material relevant to the credibility of a Crown witness constituted a miscarriage of justice. The court also considered the admissibility of comfit identification evidence and whether the failure to disclose such material amounted to a breach of the appellants' right to a fair trial.

The High Court held that the trial judge's direction to the jury was not appropriate, as it could have led to a situation where the jury placed undue weight on the evidence of one indemnified witness when considering the evidence of another indemnified witness. The court found that the trial judge should have directed the jury to consider the evidence of each indemnified witness separately and on its own merits. Additionally, the court found that the prosecution's failure to disclose material relevant to the credibility of a Crown witness constituted a significant breach of the appellants' right to a fair trial. The court held that this failure amounted to a miscarriage of justice, as the undisclosed material could have had a significant impact on the credibility of the Crown witness and, consequently, the outcome of the trial. The court also found that the comfit identification evidence was admissible, as it was relevant to the identification of the appellants and was properly adduced.

In light of the above findings, the High Court allowed the appeals, quashed the convictions, and ordered a retrial. The court held that the failure to disclose material relevant to the credibility of a Crown witness was a significant breach of the appellants' right to a fair trial, and the trial judge's direction to the jury was inappropriate. The court also held that the comfit identification evidence was admissible and properly adduced.

Orders