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 402Decision: 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 300Category: 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…
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- Case
- [2011] NSWCCA 61
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: CLELLAN CJ
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