Darwiche v R
[2011] NSWCCA 62
•08 April 2011
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 Hearing dates: 29 June 2010, 30 June 2010, 1 July 2010, 2 July 2010, 22 March 2011 Decision date: 08 April 2011 Before: McClellan CJ at CL at 1;
James J at 2
Johnson J at 3Decision: 1. In the appeal of Adnan Darwiche, the orders of the Court are:
(a) extend time for filing of a Notice of Appeal;
(b) refuse leave to add Proposed Grounds 11, 12 and 13;
(c) appeal against conviction dismissed.
2. In the appeal of Ramzi Aouad, the appeal against conviction be dismissed.
3. In the appeal of Nasaem El-Zeyat, the orders of the Court are:
(a) refuse leave to add Proposed Grounds 7 and 8;
(b) appeal against conviction dismissed.
4. In the appeal of Abass Osman, the orders of the Court are:
(a) extend time for filing of a Notice of Appeal;
(b) appeal against conviction dismissed.
Catchwords: CRIMINAL LAW - conviction appeals - joint trials of Appellants - all Appellants convicted of two murders (Lawford Street shooting) - firearm attack on suburban house from street - two occupants (Ziad Razzak and Mervat Nemra) killed - joint criminal enterprise - alleged to be part of feud between two groups - one Appellant (Darwiche) convicted at same trial of earlier offences of maliciously discharge loaded firearm with intent to cause grievous bodily harm (to Bilal Razzak) and shoot at a person (Farouk Razzak) with intent to murder (Yanderra Street shooting) - these offences also alleged to be part of feud - jury unable to agree upon verdict on further count against Darwiche of murder (of Ali Abdul Razzak) APPEAL - grounds by all Appellants claiming prejudice and a miscarriage of justice flowing from joint trial - no error in decision to hold joint trial of all Appellants for Lawford Street shootings - no error in decision to try Darwiche in same joint trial for earlier alleged shooting offences said to be part of feud - appropriate directions given to jury concerning use of evidence against each Appellant - jury reached verdicts impartially on evidence and in accordance with trial judge's directions - no miscarriage of justice resulting from joint trial APPEAL - grounds challenging direction that evidence of one indemnified witness could support evidence of another indemnified witness - no error in direction APPEAL - claim by Darwiche that it was abuse of process for prosecution case to be based upon evidence of indemnified witnesses who received benefits - no application made at trial for stay on this basis - no proper basis for stay in any event - assessment of credibility and reliability of witnesses part of jury's function - all evidence concerning indemnities and benefits placed before the jury - no miscarriage of justice APPEAL - grounds contending error in various respects during trial - no error demonstrated - no miscarriage of justice APPEAL - applications by two Appellants (Darwiche and El-Zeyat) for leave to add further grounds of appeal after hearing of appeal but before judgment delivered - suggested fresh evidence - approach to determination of application for leave - assessment of suggested fresh evidence - whether fresh and credible - whether likely in the context of the trial to cause jury to entertain a reasonable doubt about guilt of Darwiche or El-Zeyat - no miscarriage of justice - leave to add grounds refused Legislation Cited: Evidence Act 1995
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Director of Public Prosecutions Act 1986
Crimes (Appeal and Review) Act 2001
Criminal Appeal RulesCases Cited: R v Darwiche and Ors [2006] NSWSC 1167
R v Lawrence (1980) 1 NSWLR 122
R v Gregory [2002] NSWCCA 199
R v Unger [1977] 2 NSWLR
McCall v R [2010] NSWCCA 174
R v Moti [2009] QSC 407; 235 FLR 320
R v Moti [2010] QCA 178; 240 FLR 218
Rozenes v Beljajev [1995] 1 VR 533
R v Abusafiah (1991) 24 NSWLR 531
R v Fuge [2001] NSWCCA 208; 123 A Crim R 310
Ilioski v R [2006] NSWCCA 164
Fingleton v The Queen [2005] HCA 34; 227 CLR 166
Jago v District Court of NSW [1989] HCA 46; 168 CLR 23
R v WRC [2003] NSWCCA 394; 59 NSWLR 273 at 282
Dupas v The Queen [2010] HCA 20; 241 CLR 237
Williams v Spautz [1992] HCA 34; 174 CLR 509
Walton v Gardiner [1993] HCA 77; 177 CLR 378
R (Cth) v Petroulias (No. 9) [2007] NSWSC 84
Doney v The Queen [1990] HCA 51; 171 CLR 207
R v Birks (1990) 19 NSWLR 677
R v Darwiche and Ors [2006] NSWSC 929
Osman v R [2006] NSWCCA 196
R v Guldur (1986) 8 NSWLR 12
De Jesus v The Queen [1986] HCA 65; 61 ALJR 1
R v Pham [2004] NSWCCA 190
Makarov v R (No. 3) [2008] NSWCCA 293
Demirok v The Queen [1977] HCA 21; 137 CLR 20
R v Leaman (1987) 28 A Crim R 104
R v Connell (No. 1) (1992) 8 WAR 518
Yeo v R [2005] NSWCCA 49
Crofts v The Queen [1996] HCA 22; 186 CLR 427
Fittock v The Queen [2003] HCA 9; 217 CLR 508
Gilbert v The Queen [2000] HCA 15; 201 CLR 414
R v Toki (No. 3) [2000] NSWSC 999; 116 A Crim R 536
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
Aouad v R; El-Zeyat v R [2011] NSWCCA 61
Kanaan v R [2006] NSWCCA 109
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Steve v R [2008] NSWCCA 231; 189 A Crim R 68
Mahmood v State of Western Australia [2008] HCA 1; 232 CLR 397
Louizos v R [2009] NSWCCA 71; 194 A Crim R 223
FDP v R [2008] NSWCCA 317; 192 A Crim R 87
Wing Cheong Li v R [2010] NSWCCA 40
El Hassan v R [2007] NSWCCA 148
El Jalkh v R [2009] NSWCCA 139
R v Lowery and King (No. 3) [1972] VR 939
Domican v The Queen [1992] HCA 13; 173 CLR 555
R v Rose [2002] NSWCCA 455; 55 NSWLR 701
R v Davidson [2009] NSWCCA 150; 75 NSWLR 150
R v Plevac [1999] NSWCCA 351
R v Fowler [2000] NSWCCA 142
Carr v Finance Corporation of Australia Limited [No. 1] [1981] HCA 20; 147 CLR 246
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318
Burrell v The Queen [2008] HCA 34; 238 CLR 218
Nguyen v R [2008] NSWCCA 322
R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
R v Busby (1982) 75 Cr App R 79
R v Beattie [1996] 40 NSWLR 155Category: Principal judgment Parties: Adnan Darwiche (Appellant)
Nasaem El-Zeyat (Appellant)
Ramzi Aouad (Appellant)
Abass Osman (Appellant)
Regina (Respondent)Representation: Counsel:
Mr P Lange (Appellant Darwiche)
Mr MC Ramage QC; Mr IS McLachlan (Appellant El-Zeyat)
Mr P Hamill SC; Mr CJG Smith (Appellant Aouad)
Ms A Francis (Appellant Osman)
Ms DML Woodburne SC; Ms JA Girdham (Respondent)
Solicitors:
Lawyers Corp Pty Limited (Appellant Darwiche)
Nedim Lawyers (Appellant El-Zeyat)
George Sten & Co (Appellant Aouad)
Bannister Kyriacou Nasser Lawyers (Appellant Osman)
Solicitor for Public Prosecutions (Respondent)
File Number(s): Decision under appeal
- Jurisdiction:
- 9111
- Date of Decision:
- 2006-11-10 00:00:00
- Before:
- Bell J and a jury
- File Number(s):
- 2006/5282 (Appellant Darwiche)
2005/2620 (Appellant El-Zeyat)
2005/2678 (Appellant Aouad)
2005/2957 (Appellant Osman)
Index
Heading in Judgment
Paragraph(s)
The Charges and Verdicts
4-12
Sentences
13-17
Factual Background
18-24
Grounds of Appeal
25-33
Applications for Extension of Time to Appeal
34-43
Summary of the Crown Case Against Each Appellant
44-124
· Crown Case Against The Appellant Darwiche
46-92
· Crown Case Against The Appellant El-Zeyat
93-100
· Crown Case Against The Appellant Aouad
101-111
· Crown Case Against The Appellant Osman
112-118
· Ballistics Evidence Connecting Crime Scenes
119-124
Indemnities and Benefits Provided to Principal Crown Witnesses
125-159
· Khaled Taleb
126-137
· Wahib Hannouf
138-155
· Haissam Hannouf
156-159
The Abuse of Process Ground (Darwiche Ground 1 Only)
160-182
· Submissions
160-168
· Decision
169-182
Grounds of Appeal Complaining of Prejudice Flowing from the Joint Trial of the Appellants (Darwiche Ground 2; El-Zeyat Ground 2; Aouad Ground 2; Osman Ground 4)
183-272
· Submissions of Appellants
187-210
· Submissions of the Crown
211-232
· Decision
233-272
Ground of Appeal that Trial Judge Erred in Permitting Crown to Adduce Evidence that the Appellant Aouad Was Criminally Involved in Counts 3, 4 and 5 When He Was Not Charged With Those Offences (Aouad Ground 3)
273-285
· Submissions
273-277
· Decision
278-285
Grounds of Appeal Challenging the Direction that Evidence of One Indemnified Witness Could be Considered as Providing Support for the Evidence of Another Indemnified Witness (Darwiche Ground 5; El-Zeyat Ground 3; Aouad Grounds 1 and 1(b); Osman Ground 3(c))
286-292
· Submissions
287-288
· Decision
289-292
Ground of Appeal Concerning Admission of Evidence of Reasons Why Various Witnesses Had Not Given Evidence (Darwiche Ground 3)
293-302
· Submissions
293-298
· Decision
299-302
Ground of Appeal Alleging Error in Refusing to Discharge the Jury (Darwiche Ground 4)
303-318
· Submissions
303-308
· Decision
309-318
Ground of Appeal Alleging Error by Trial Judge in Omitting Details of the Evidence of Abdul Taleb During the Summing Up (Darwiche Ground 6)
319-328
· Submissions
319-322
· Decision
323-328
Ground of Appeal Asserting Inadequate Directions to the Jury Concerning the Use to be Made of Evidence of Detective Wakeham That a Relative of the Appellant Darwiche Had Sought to Influence the Witness Abdul Taleb (Darwiche Ground 7)
329-337
· Submissions
330-334
· Decision
335-337
Ground of Appeal that the Trial Judge Erred in Failing to Direct the Jury Concerning the Dangers of Identification Evidence Proffered by Jamal Razzak (Darwiche Ground 8)
338-351
· Submissions
339-343
· Decision
344-351
Ground of Appeal that the Trial Judge Erred in Continuing with a Portion of the Summing Up in Circumstances Where the Appellant Darwiche’s Counsel Was Unable to Remain in Court Due to a Severe Illness (Darwiche Ground 9)
352-367
· Submissions
357-362
· Decision
363-367
Ground of Appeal Suggesting Error on the Part of the Trial Judge in Failing to Direct the Jury that it had to be Satisfied Beyond Reasonable Doubt of the Motive of the Appellant Darwiche and that any Discreditable Conduct Relied Upon to Prove Such Motive Must Also be Proved Beyond Reasonable Doubt (Darwiche Ground 10)
368-380
· Submissions
368-375
· Decision
376-380
Grounds of Appeal Challenging the Admissibility, the Use in the Crown Prosecutor’s Closing Address and the Directions Given by the Trial Judge With Respect to the Evidence of Haissam Hannouf (Osman Grounds 1, 2, 3, 5 and 6)
381-424
· Submissions
383-389
· Decision
390-424
Applications Made After Hearing and Whilst Judgment is Reserved by Appellants Darwiche and El-Zeyat for Leave to Add Further Grounds of Appeal
425-437
The Applicable Test - Claim of Miscarriage of Justice Resulting from Absence at the Trial of Fresh Evidence
438-439
Application by Appellant Darwiche for Leave to Add Ground 11 - the Affidavit of Sheikh Tay Eldeen Alhilali
440-451
· Submissions
445-447
· Decision
448-451
Applications by Appellant Darwiche to Add Ground 12 and the Appellant El-Zeyat to Add Ground 7 - the Joe Osman/Fadi El-Jamal Affidavit
452-496
· Submissions
458-465
· Decision
466-496
Applications by Appellant Darwiche to Add Ground 13 and the Appellant El-Zeyat to Add Ground 8 - The Houssam El-Jamal Affidavit
497-533
· Submissions
510-515
· Decision
516-533
Conclusion
534-536
Proposed Orders
537-540
Judgment
McCLELLAN CJ at CL : I agree with Johnson J.
JAMES J : I agree with Johnson J.
JOHNSON J : The Appellants, Adnan Darwiche, Nasaem El-Zeyat (also known as "El-Zayet" ), Ramzi Aouad and Abass Osman, were convicted of various offences on 9 August 2006 following a trial before Bell J (as her Honour then was) and a jury. Each Appellant now appeals against his convictions.
The Charges and Verdicts
The indictment dated 19 June 2006 contained seven counts.
The first count alleged that Adnan Darwiche, on 17 June 2001, at Bankstown in the State of New South Wales did shoot at Bilal Razzak with intent to murder. He was acquitted on this count.
The second count alleged (as an alternative to the first count) that Adnan Darwiche, on 17 June 2001, at Bankstown in the State of New South Wales maliciously discharged a loaded firearm with intent to cause grievous bodily harm to Bilal Razzak. He was convicted of this offence.
The third count alleged that Adnan Darwiche, on 27 August 2003, at Condell Park in the State of New South Wales did shoot at Farouk Razzak with intent to murder. Adnan Darwiche was convicted of this offence.
The fourth count alleged (as an alternative to the third count) that Adnan Darwiche, on 27 August 2003, at Condell Park in the State of New South Wales maliciously discharged a loaded firearm with intent to cause grievous bodily harm to Farouk Razzak. Given the verdict on Count 3, no verdict was taken on this count.
The fifth count alleged that Adnan Darwiche, on 29 August 2003, at Lakemba in the State of New South Wales did murder Ali Abdul Razzak. The jury was unable to agree upon a verdict and was discharged on this count.
The sixth count alleged that Adnan Darwiche, Nasaem El-Zeyat, Ramzi Aouad and Abass Osman, on 14 October 2003, at Greenacre in the State of New South Wales did murder Ziad Razzak. Each Appellant was convicted of this murder.
The seventh count alleged that Adnan Darwiche, Nasaem El-Zeyat, Ramzi Aouad and Abass Osman, on 14 October 2003, at Greenacre in the State of New South Wales did murder Mervat Nemra. Each Appellant was convicted of this murder.
Adnan Darwiche appeals against his convictions on Counts 2, 3, 6 and 7. Each of Nasaem El-Zeyat, Ramzi Aouad and Abass Osman appeal against their convictions on Counts 6 and 7.
The Sentences
On 10 November 2006, Bell J sentenced each of the Appellants: R v Darwiche and Ors [2006] NSWSC 1167.
Adnan Darwiche was sentenced to the following terms of imprisonment:
(a) Count 2 - maliciously discharging a loaded firearm with intent to do grievous bodily harm to Bilal Razzak - fixed term of imprisonment for eight years commencing on 28 November 2003;
(b) Count 3 - shoot at Farouk Razzak with intent to murder - imprisonment for 18 years commencing on 28 November 2005, comprising a non-parole period of 14 years and a balance of term of four years;
(c) Count 6 - murder of Ziad Razzak - imprisonment for life commencing on 10 November 2006;
(d) Count 7 - murder of Mervat Nemra - imprisonment for life commencing on 10 November 2006.
Nasaem El-Zeyat was sentenced to the following terms of imprisonment:
(a) Count 6 - murder of Ziad Razzak - imprisonment for life commencing on 26 May 2004;
(b) Count 7 - murder of Mervat Nemra - imprisonment for life commencing on 26 May 2004.
Ramzi Aouad was sentenced to the following terms of imprisonment:
(a) Count 6 - murder of Ziad Razzak - imprisonment for life commencing on 26 May 2004;
(b) Count 7 - murder of Mervat Nemra - imprisonment for life commencing on 26 May 2004.
Abass Osman was sentenced to the following terms of imprisonment:
(a) Count 6 - murder of Ziad Razzak - imprisonment for 27 years commencing on 11 October 2006, comprising a non-parole period of 22 years and a balance of term of five years;
(b) Count 7 - murder of Mervat Nemra - imprisonment for 27 years commencing on 11 October 2006, comprising a non-parole period of 22 years and a balance of term of five years.
Factual Background
The circumstances of the offences found proved against the Appellants, and the background to those offences, were summarised in the remarks on sentence of Bell J. Her Honour outlined, at [3]-[5], the history of the dispute between members of the Darwiche and Razzak families which formed that background:
"3 Each of the offences for which Adnan Darwiche is to be sentenced has its genesis in a dispute between him and the younger generation of the Razzak family. In late 2000 and early 2001 Adnan Darwiche was involved in the supply of cannabis in South Western Sydney. His right-hand man was an associate named Khaled Taleb. Their competition included Bilal Razzak and his cousins, Gehad and Ziad. In February 2001 there was a confrontation between Adnan Darwiche and Khaled Taleb and Bilal Razzak outside Nemra's Caf in Bankstown. Taleb and Darwiche assaulted Bilal Razzak. The incident does not give rise to any charge against Adnan Darwiche and it is irrelevant save that it appears to have marked the commencement of the hostile relations between the two families, which culminated in the commission of each of the offences. After the confrontation there was some further trouble between Bilal Razzak and the younger generation of the Darwiche family. Following one such episode, on the evening of 25 February 2001, a number of shots were fired into Adnan Darwiche's car, which was parked outside the Darwiche family home in Lilac Street, Punchbowl.
4 Adnan Darwiche viewed the firing of shots at his car, outside his family home, as a serious affront to his standing within the criminal milieu in the Punchbowl - Lakemba area. He believed that Bilal Razzak was responsible for it. Later that night he went with Khaled Taleb and two other associates to a block of units located in Sir Joseph Banks Street, Bankstown, where Bilal Razzak was believed to be living. The driver waited in the car and Darwiche, Taleb and the third man each fired shots at the unit.
5 A few days later there was a meeting attended by members of the Darwiche and Razzak families in an endeavour to settle the dispute between them. During the meeting Adnan Darwiche threatened Bilal Razzak, demanding that he leave the country. A matter of days later Bilal Razzak flew to Lebanon where he remained until early May 2001."
Bell J then turned to the circumstances of Adnan Darwiche's ("the Appellant Darwiche") offence in Count 2, the shooting of Bilal Razzak on 17 June 2001:
"6 The first offence of which Adnan Darwiche was convicted occurred a few weeks after Bilal Razzak's return to Australia. On the evening of 17 June Adnan Darwiche and another man entered the Razzak family unit in the block in Sir Joseph Banks Street, Bankstown. Both men were wearing full-face balaclavas, they were dressed in dark clothing and each had a Glock-style pistol in his hand. Bilal was in his bedroom, listening to music with his cousin, Samear. Adnan Darwiche opened the bedroom door, pointed his pistol at Bilal Razzak and fired it five times. At least three bullets struck Bilal Razzak; one entered his right flank and passed through his liver, vertebral column, left kidney and part of the colon, exiting on the left side of his body. There were entry and exit wounds to his right and the left knees. For a time following the assault he was paralysed. He has since recovered the use of his legs.
7 Adnan Darwiche was charged with shooting at Bilal Razzak with intent to murder him and in the alternative with discharging a loaded firearm with intent to do grievous harm. He was acquitted of the more serious count. The verdict is readily explained. The discharge of the firearm took place in a confined area in circumstances in which Bilal Razzak was helpless and without any means of escape. There was no obstacle to Adnan Darwiche delivering a coup de gras had that been his intention. As the jury found, it was not. His intention was to kneecap Bilal Razzak and thereby to establish his superiority over him."
Her Honour referred to further events in the period between the offences in Counts 2 and 3, including a so-called peace agreement said to have been brokered between the two families:
"8 In the period following the shooting there were further attempts to broker peace between the two families. These were rapidly brought to a head following the release of Gehad Razzak from prison. Gehad was an influential member of the younger generation of the Razzak family. Shortly after his release he met Adnan Darwiche and in the course of the meeting Darwiche agreed to pay a cash sum to Bilal Razzak as compensation for having shot him. The money, a sum of the order of $10,000 or $15,000, was paid to Gehad Razzak on Bilal's behalf and for a period there was peace between the two families.
9 Around the time the peace agreement was reached Adnan Darwiche abandoned his drug supply business. He was much affected by the death of his father, Farouk Darwiche, and troubled that his father had died without attending the Hajj. Adnan Darwiche became interested in religion, attending the Hajj in 2002 and 2003. Khaled Taleb accompanied him on the first occasion.
10 Adnan Darwiche was overseas in July 2003 when an incident occurred which re-ignited the hostility between him and members of the Razzak family. On 30 July Khaled Taleb was shot by two masked men as he was speaking with a friend in the Halal Butcher's Shop, Bankstown. He sustained gunshot wounds to each of his legs. The injury to his left foot was particularly severe. He was taken to Liverpool Hospital where he underwent surgery the following day. He remained in hospital for some time. Taleb had a strong belief that his assailants were Gehad and Ziad Razzak.
11 While he was in hospital Taleb spoke with Adnan Darwiche by telephone and told him what had happened. Darwiche returned to Australia shortly after this and visited Taleb in hospital. In the course of his meetings with Taleb in hospital, and at Taleb's family home following his discharge, Adnan Darwiche made clear that it was his intention to avenge his shooting.
12 I am satisfied beyond reasonable doubt that, regardless of what may have prompted the shooting of Taleb, it was viewed by Adnan Darwiche as a breach of his agreement with the Razzak family. Taleb was known to be his lieutenant and the shooting was an affront to his authority."
Her Honour referred to the Appellant Darwiche's offence in Count 3 committed on 27 August 2003 at Yanderra Street, Condell Park (known as the "Yanderra Street shooting" ):
"13 In August 2003 Frank Razzak's son, Samear, was living at 106 Yanderra Street, Condell Park (the Razzak premises). Adnan Darwiche believed that Ziad Razzak was also residing at this address.
14 On the evening of 27 August, Adnan Darwiche took up a position on the nature strip near the corner of Fourth Avenue and Yanderra Street from where he had a view of the front verandah of the Razzak premises. He was with a companion. Both were armed with SKS semi-automatic rifles. A third man had been assigned the task of drawing the occupants of the premises outside so that they would be easy targets. In accordance with Adnan Darwiche's instructions this associate drove along Yanderra Street and pulled up outside the Razzak premises. He fired 11 rounds from a handgun into a white Mazda that was parked outside the premises. The lure worked, just as it had been planned. Frank Razzak came out onto the lighted front verandah. He saw Adnan Darwiche and his companion. He started to call out to them and, as he did so, they both opened fire. In all, 55 rounds were fired in the direction of the verandah of the Razzak premises; 28 from one SKS and 27 from the other. Frank Razzak was not hit. Bullets passed through the aluminium-clad walls of the front bedrooms. Frank Razzak's teenage daughter, Jomana, who is disabled and cannot walk without assistance, was in one of these rooms. She crouched helplessly on the floor as bullets coursed through the room.
15 Neither Adnan Darwiche nor his fellow gunman possessed any skill in the use of these high-powered weapons. The gunfire, although directed at the verandah of the Razzak premises, was poorly controlled and a number of bullets strayed well to the east of the premises. Two bullets travelled through the western wall of No. 100, across the master bedroom, exiting and travelling through the bedroom of No 98 where they came to rest. Another bullet travelled as far as No. 96 passing through an upstairs bedroom. It is remarkable that no person was injured as the result of this display of uncontrolled gun violence.
16 Adnan Darwiche's dispute was not with Frank Razzak who was a contemporary of Farouk Darwiche and who was not involved in criminal activity. However, by the time Darwiche came to carry out the shooting in Yanderra Street his intention was to kill any member of the Razzak family. After the shooting Khaled Taleb asked him, 'Why did you shoot [Frank], he had nothing to do with this?', Adnan Darwiche responded, 'Fuck them. Fuck all of them'."
Events following the Yanderra Street shooting were described by her Honour as follows:
"17 In the aftermath of the Yanderra Street shooting there were further hostilities between Adnan Darwiche and his associates and the younger members of the Razzak family. It is not necessary to detail them. It is sufficient to note that following the shooting, Ziad and Gehad Razzak went into hiding. They asked if they could stay with a friend named Ali Hamka. Ali was living with his partner, Melissa Nemra, at 5 Lawford Street, Greenacre. He agreed to let the Razzak brothers stay with him. Melissa moved out of the house because she and Ali had fears for her safety. Their two children, Mohamed who was aged 4 years, and Macy who was aged 2 years, were staying with Melissa's parents. Melissa visited Ali once a week on her day off to clean the house. On the evening of 13 October Melissa decided to stay at the house at 5 Lawford Street."
Her Honour recited events in the lead up to the murders in Counts 6 and 7, at Lawford Street, Greenacre (known as the "Lawford Street shooting" ):
"18 Adnan Darwiche came to learn that Ziad and Gehad Razzak had been staying at 5 Lawford Street, Greenacre. He decided to launch an attack on the premises with a view to killing them. The scheme involved a considerable degree of planning. A car had to be stolen and secreted prior to the attack so that it could be used to transport the gunmen to and from the scene. Adnan Darwiche and his associates had access to a unit in Punchbowl, at which a number of weapons including a rocket launcher were stored. On 13 October Adnan Darwiche, Ramzi Aouad, Khaled Taleb and a man named Mohammed met at the unit. They inspected the cache of firearms and ammunition. They put on gloves that had been acquired for the purpose and commenced to clean each round of ammunition with gun oil. Adnan Darwiche warned them to be careful not to let any hair fall onto the bullets because of the risk of later DNA identification. Each round was wiped clean and loaded into magazines. The magazines were then fitted to the guns: the two SKS rifles that had been used in the Yanderra Street shooting; a 9 mm Glock pistol and a .45 Mach 10 pistol. They cleaned the guns to make sure that they would not jam.
19 The rocket launcher was inspected and there was some discussion about the need to handle it with care. On the evening of 13 October each of these weapons and the rocket launcher were taken from the unit to Naseam El Zeyat's home in David Street, Greenacre in readiness for the attack. By early evening the stolen vehicle, a Nissan Pulsar had been driven to the El-Zeyat home and was parked in the garage.
20 During the course of the evening Adnan Darwiche, Khaled Taleb, Naseam El Zeyat, Ramzi Aouad and Abass Osman were all present in the dining room of the El-Zeyat premises with the weapons on display when discussion took place about how the attack was to be staged. Adnan Darwiche led the discussion, explaining the role that each man was to play. Abass Osman was to be the driver. Darwiche, Aouad and Mohammed were to be the shooters. Darwiche had earlier designated Taleb as the driver but he decided against this, since in the event they got into any difficulties, Taleb would be a liability because he was still on crutches. Naseam El-Zeyat insisted that he wanted to be a shooter too. Darwiche consented to him joining the party. The instructions given by Darwiche included the position that each gunman was to take up outside the house and that each was to commence firing at the top of his section of the front wall lowering his aim in an 'S' shaped pattern down to the bottom of the wall. In this way Darwiche covered the contingency that the occupants of the house might drop to the floor when the shooting began."
Bell J made the following findings concerning the Lawford Street shooting on 14 October 2003:
"21 At a little after 3.00am Abass Osman dropped Adnan Darwiche, Naseam El-Zeyat, Ramzi Aouad and Mohammed off near Lawford Street. Each was armed. Melissa Nemra was asleep in the front bedroom. Ziad Razzak was lying on the lounge in the adjacent front room watching television and Ali Hamka was sitting in a chair next to him. The four gunmen stood outside the house, which is located in a quiet cul-de-sac, and opened fire, discharging 100 rounds between them. Of these 55 penetrated the front wall of the premises, which was of fibro construction.
22 A bullet passed through Melissa Nemra's neck, fatally wounding her. She died within minutes as Ali Hamka held her. He frantically tried to get assistance by telephoning the emergency services operator. He could hear Ziad Razzak coughing. Ziad Razzak had been struck by more than one bullet. One penetrated the back of his skull. He was removed from the scene by ambulance and he died a matter of hours later in hospital. Ali Hamka survived uninjured.
23 The stolen Nissan Pulsar was set alight in Pandora Street, Greenacre and located by the police within two hours of the shooting."
Grounds of Appeal
There was some overlap in the grounds of appeal relied upon by the Appellants. I will set out the grounds of appeal for each Appellant in their entirety. When the time comes to consider the grounds of appeal, I will group them so that common grounds are addressed at the same time.
At the hearing before this Court between 30 June and 2 July 2010, the Appellant Darwiche relied upon the following grounds of appeal:
(a) Ground 1 - her Honour erred in failing to stay the proceedings as an abuse of process in circumstances where the prosecution was entirely based upon the evidence of witnesses who had received benefits to such a very considerable extent that to rely upon their evidence would bring the justice system into disrepute.
(b) Ground 2 - her Honour erred by failing to sever the various counts on the indictment, by giving insufficient weight to the prejudice which the Appellant would suffer as a result of a joint trial.
(c) Ground 3 - her Honour erred in permitting evidence to be given before the jury as to the reason why various witnesses had not given evidence, when such evidence was either irrelevant or should have been excluded pursuant to s.137 Evidence Act 1995 .
(d) Ground 4 - her Honour erred in refusing to discharge the jury in circumstances where one of the jurors had acted in such a way as to demonstrate a reasonable apprehension of bias.
(e) Ground 5 - her Honour erred in directing the jury that the evidence of one indemnified witness could be considered as providing support for the evidence of another indemnified witness.
(f) Ground 6 - her Honour erred in omitting the details of the evidence of Mr Abdul Taleb during the summing up.
(g) Ground 7 - her Honour erred in inadequately directing the jury as to the use which could be made of the evidence of Detective Senior Constable Wakeham that a relative of the Appellant Darwiche purportedly had sought to influence the witness Abdul Taleb.
(h) Ground 8 - her Honour erred in failing to direct the jury about the dangers of the identification evidence proffered by Jamal Razzak.
(i) Ground 9 - her Honour erred in continuing with a portion of the summing up in circumstances where the Appellant Darwiche's counsel was unable to remain in Court due to a severe illness.
(j) Ground 10 - her Honour erred in failing, in respect of Counts 6 and 7, to direct the jury that it had to be satisfied beyond reasonable doubt of the motive of the Appellant Darwiche and that any discreditable conduct relied upon to prove such motive must also be proved beyond reasonable doubt.
After the Court had reserved judgment on the appeals, and without prior notice to the Court, Mr Lange, counsel for the Appellant Darwiche, furnished to the Registrar a written submission on 3 November 2010, accompanied by a Notice of Motion and affidavits, in which he sought leave to add two further grounds of appeal. I will return to that application later in this judgment.
Later again, on 1 February 2011, a further Notice of Motion was furnished to the Registrar seeking leave to add yet another ground of appeal. Again, I will return to this topic.
At the hearing of the appeal on 30 June to 2 July 2010, the Appellant Nasaem El-Zeyat ("the Appellant El-Zeyat") relied upon the following grounds of appeal (Grounds 1 and 2 relating to his appeal from another trial):
(a) Ground 3 - the trial Judge erred in directing the jury that the evidence of any one "indemnified witness" may be considered as providing support for the acceptance of the evidence of another of the "indemnified witnesses" .
(b) Ground 4 - the joint trial with the Appellant Darwiche gave rise to a miscarriage of justice.
On 14 February 2011, a Notice of Motion was provided to the Registrar in which the Appellant El-Zeyat sought leave to add two further grounds of appeal. I will return to this topic.
The Appellant Ramzi Aouad ("the Appellant Aouad") relied upon the following grounds of appeal:
(a) Ground 1 - the trial Judge erred in directing the jury as to the approach they were entitled to take in considering the evidence of the witnesses who might reasonably be regarded as criminally concerned in the crimes alleged against the Appellant Aouad, and in particular by directing the jury that the evidence of any one "indemnified witness" may be considered as providing support for the evidence of another.
(b) Ground 1(b) - the trial Judge erred in directing the jury that it was open to the jury "to have regard to the evidence of one or more indemnified witnesses as providing some support for an acceptance of the evidence of another of the indemnified witnesses" .
(c) Ground 2 - the trial miscarried as a result of:
(i) the failure to sever Counts 1-5 from Counts 6 and 7, and to order separate trials in respect of Counts 1-5 or in respect to the Appellant Darwiche; and
(ii) the failure to discharge the jury in respect of the Appellant Aouad's case, and to order separate trials, upon application by defence counsel at the conclusion of the Crown case.
(d) Ground 3 - the trial Judge erred in permitting the Crown to adduce evidence that the Appellant Aouad was criminally involved in Counts 3, 4 and 5 when the Appellant Aouad was not charged with those offences.
The Appellant Abass Osman ( "the Appellant Osman" ) relied upon the following grounds of appeal:
(a) Ground 1 - the trial miscarried on account of the Crown Prosecutor's address concerning the evidence of Haissam Hannouf.
(b) Ground 2(a) - the trial miscarried on account of her Honour allowing the Crown to adduce, in the re-examination of Haissam Hannouf, evidence of second [hand] hearsay which:
(i) went beyond the purported relevance of the evidence, namely to re-establish Wahib Hannouf's credibility; and
(ii) which went further and included Haissam Hannouf's opinion of the truth of this second [hand] hearsay.
(c) Ground 3(a) - her Honour's directions to the jury were inadequate in that they failed, in light of the Crown address, to appropriately limit the use which could be made of the evidence of Haissam Hannouf.
(d) Ground 3(b) - her Honour's directions did not cure the prejudice which flowed to the Appellant Osman in light of the admission of the evidence of Haissam Hannouf.
(e) Ground 3(c) - her Honour erred in directing the jury, in the circumstances of the Appellant Osman's case, that they could use the evidence of one indemnified witness, Haissam Hannouf, as support for Wahib Hannouf.
(f) Ground 4 - the joint trial with the Appellant Darwiche gave rise to a miscarriage of justice.
During the hearing of the appeal on 1 July 2010, counsel for the Appellant Osman sought leave to rely upon the following supplementary grounds of appeal:
(a) Ground 5 - her Honour erred in referring to the evidence of Haissam Hannouf as being evidence that before the Lawford Street shooting, Wahib Hannouf had given an account to him of the event that was to take place, having come as a result of seeing the Appellant Darwiche (also known as "Biggie" ) and the Appellant Osman, when in fact the evidence of Wahib Hannouf as reported to Haissam Hannouf came as a result of hearing the previous representations of others.
(b) Ground 6 - her Honour erred in admitting the evidence of Haissam Hannouf as to the previous representations made by Wahib Hannouf to him, because they were not admissible pursuant to s.66(2)(b) Evidence Act 1995 .
Applications for Extension of Time to Appeal
The Appellant Darwiche requires an extension of time to file a notice of appeal to this Court. He was convicted on 9 August 2006 and sentenced for his offences on 10 November 2006. A notice of intention to appeal was filed, but this expired on 25 August 2008. A notice of appeal and notice of application for an extension of time dated 12 February 2009 were received by the Court of Criminal Appeal on 23 February 2009.
The Appellant Darwiche relies on an affidavit affirmed on 11 June 2010 by his solicitor, Abdul Reslan, to explain the delay in lodging the notice. That affidavit referred to the giving of instructions to appeal in late 2006, followed by a lengthy delay whilst legal aid was sought. In the meantime, appeals had been filed by the other Appellants.
The Crown opposes the application for extension of time relying upon the statement in R v Lawrence (1980) 1 NSWLR 122 at 148 that, where any considerable delay has occurred, exceptional circumstances will be required before an appeal is permitted to proceed. Whilst acknowledging that the interests of justice are an important consideration on an application for leave ( R v Gregory [2002] NSWCCA 199 at [41]), and that the Appellant Darwiche's convictions and life sentences were clearly of manifest importance to him and thus a significant reason in favour of an extension of time, the Crown submitted that as there was no merit in the proposed grounds of appeal, an extension of time to appeal should be refused.
Mr Lange, counsel for the Appellant Darwiche, acknowledged the public interest in the avoidance of delay in the determination of criminal appeals, but emphasised countervailing factors which he submitted supported an extension of time to appeal.
There is a clear public interest in the avoidance of delay in bringing appeals to this Court against conviction and sentence. The time limit for the bringing of an appeal to this Court under the Criminal Appeal Act 1912 reflects the principle of finality in litigation: R v Unger [1977] 2 NSWLR 990 at 995-996; R v Gregory at [39]-[41]. There is provision for extension of time to appeal and this power should be exercised with the interests of justice in mind, given the usual consequences of conviction following trial on indictment. However, the longer time passes without an appeal being filed, the more solid ought be the expectation of the community, witnesses, victims and the families of victims that the criminal proceedings are over. This is a significant consideration to be taken into account on a leave application. Should an appeal against conviction succeed and a retrial is ordered, witnesses will be required to testify once again, with the further passage of time resulting from a delayed appeal having the potential to affect detrimentally the administration of justice.
This Court has recently refused an extension of time to appeal against conviction for murder because of the absence of any satisfactory explanation for the delay and the lack of merit in the proposed grounds of appeal: McCall v R [2010] NSWCCA 174. When considering the interests of justice in relation to an application for leave to appeal, regard should be had to the interests of the Crown (representing the community) and the administration of justice generally, as well as the interests of the applicant for leave: R v Gregory at [41]; McCall v R at [6].
The Appellant Darwiche was convicted of most serious crimes and his sentences include life imprisonment. The other Appellants stood trial at the same time as the Appellant Darwiche, and their appeals are proceeding to hearing before this Court. There are a number of overlapping grounds of appeal upon which all Appellants seek to rely. It appears from the affidavit relied upon in support of this application, that some of the reasons for delay were beyond the control of the Appellant Darwiche. A number of his appeal grounds are at least arguable. I am satisfied that exceptional circumstances exist, so that it is appropriate that an extension of time be allowed for the Appellant Darwiche's appeal against conviction to be heard by this Court with respect to Grounds 1 to 10, being the grounds considered by the Court at the hearing of the appeal in June-July 2010.
The application for leave to add further grounds of appeal will be considered later in this judgment.
The Appellant Osman also requires an extension of time to file a notice of appeal to this Court. An affidavit sworn 30 June 2010 by his solicitor, Kiki Kyriacou, was read in support of this application. The Crown opposed the application for an extension of time upon similar grounds to those raised on the application by the Appellant Darwiche.
The Appellant Osman was convicted of very serious crimes and was sentenced to lengthy terms of imprisonment. The affidavit of Mr Kyriacou provides some explanation for the delay on his client's part. A number of his appeal grounds are at least arguable. I am satisfied that an extension of time ought be allowed for the Appellant Osman to appeal against conviction with respect to the grounds argued at the hearing of the appeal in June-July 2010.
Summary of the Crown Case Against Each Appellant
It is appropriate to set out in summary form the nature of the Crown case against each Appellant at the trial before Bell J, for the purpose of dealing with the various grounds of appeal.
Critical Crown witnesses in the trials of the Appellants were Khaled Taleb, Wahib Hannouf and Haissam Hannouf, although the evidence of each of these witnesses did not implicate each of the Appellants. Each was an indemnified witness (see [125] and following), who had a previous association of one form or another with the Appellants, and in many instances had been good friends for a time.
Crown Case Against The Appellant Darwiche
On each count charged against the Appellant Darwiche, evidence was led by the Crown from Khaled Taleb, whom the Crown alleged was the Appellant Darwiche's former right-hand man in a drug supply business. Khaled Taleb's evidence was that the Appellant Darwiche was the moving force in the planning and commission of each count.
It was the defence hypothesis that Khaled Taleb was the perpetrator, and that his knowledge of those events arose from the fact that he bore criminal responsibility for each count.
Evidence was adduced at the trial of events concerning the dispute between the Darwiche and Razzak families, summarised in the remarks on sentence at [18] above.
It was the Crown case that the Appellant Darwiche was one of the gunmen who attacked Bilal Razzak on 17 June 2001 (Counts 1 and 2). Khaled Taleb gave evidence that the Appellant Darwiche called him after the shooting and told him that "They had gotten the bloke they were after" . He asked Darwiche "Why didn't you call me?" and Darwiche replied "I couldn't call you because it happened so quick" (T1154). The following day, the Appellant Darwiche told Khaled Taleb that Abdul Darwiche had been the driver. According to the Appellant Darwiche, Abdul Darwiche had remained outside and that he and Mitch Ayoubi entered the unit. The Appellant Darwiche told Khaled Taleb that he had fired the shots that had struck Bilal Razzak.
Jamal Razzak recognised the Appellant Darwiche at the scene immediately after he had heard the gunshots inside his unit. It was his evidence that the Appellant Darwiche matched the physical description of the man who fired the weapon.
There was no issue at trial that, after this shooting, the Appellant Darwiche paid an amount of compensation to Bilal Razzak as part of the peace agreement. That money was paid because Bilal Razzak had threatened to speak to the police. The fact that the money was paid by the Appellant Darwiche, the Crown submitted, evinced that he, and not Khaled Taleb, was the shooter on 17 June 2001.
As set out in Bell J's remarks on sentence, hostilities ceased following the peace agreement, and there were no further episodes of violence between the Appellant Darwiche and his associates and the Razzak family from late 2001 to 30 July 2003 when Khaled Taleb was shot at a butcher shop in Bankstown.
Khaled Taleb remained in hospital for over a fortnight as a result of wounds to his left leg and foot sustained in the butcher shop shooting. During his stay in hospital, he was regularly visited by the Appellant Aouad and the Appellant Darwiche. Khaled Taleb told both the Appellant Darwiche and the Appellant Aouad that he believed the gunmen were Gehad and Ziad Razzak. It was Khaled Taleb's evidence that, during a visit to him in hospital, the Appellant Darwiche said in the Appellant Aouad's presence " Fuck them, fuck them all. We'll get them all, fuck them. The first chance we get" (T1166).
Khaled Taleb gave evidence of other conversations he had with the Appellant Darwiche and the Appellant Aouad, during which it was reported to him that the Razzaks were the shooters. He said (T1165):
"I asked Eddie [the Appellant Darwiche] , 'Who told you this was them? It was Bill Assoum was [t] elling them.' After Eddie said, 'Which guns, were used?' I said, 'A Tougref, a 45.' That is when Ramzi says, 'It's true, Assoum would have a Tougref and they tried to sell it to me. He must have sold that same gun to the Razzaks, and the ones they used to shoot you. So Bilal's not lying. Bill Assoum is not lying, it was [them] '."
According to Khaled Taleb, it was on this same occasion that the Appellant Darwiche went on to say (T1165):
"Okay, that's it. We're going to suss them out. We're going to start sussing them out and finding out where they are staying after, everything about them. And then once if we find out anything they're fuckin' dead. We're going to get them one by one."
During a further conversation, again in the Appellant Aoaud's presence, Khaled Taleb suggested that they should get Gehad Razzak first because Gehad Razzak was the head of the family and the others would ''shit themselves" if they got him (T1166).
On the day Khaled Taleb was discharged (27 August 2003), the Appellant Aouad, his wife and the Appellant Darwiche all came to the hospital. Khaled Taleb then went to stay at his home in Lurnea where there was a meeting between the Appellant Darwiche, Abdul Darwiche, the Appellant Aouad and (he thought) Mohammed Touma, during which the Appellant Darwiche said that Gehad Razzak and Ziad Razzak were staying in Yanderra Street. There was further discussion about "getting" Gehad and Ziad Razzak.
It was the Crown case that the Appellant Darwiche and another gunman fired shots at Farouk Razzak whilst he was standing on the front veranda of his house at 106 Yanderra Street, Condell Park on 27 August 2003 (Counts 3 and 4).
At the time of the Yanderra Street shooting (see [21] above), Khaled Taleb was using crutches. Farouk Razzak did not report seeing any man on crutches at the scene. Telephone call-charge records placed Khaled Taleb's phone in Casula, well away from Condell Park, whereas the Appellant Darwiche's phone was around Condell Park at the time of the shooting. Khaled Taleb denied that he was present at the Yanderra Street shooting, denied that he was one of the shooters, and denied that he had organised the shooting (T1381).
Khaled Taleb's evidence was that the next day, 28 August 2003, the Appellant Darwiche admitted to him (T1185.13):
"Well Ramzi drove by. He shot at the house me and Abdul on the corner and after Ziggy ran out with a gun in his hands and straight after his father Frank came out. As soon as they ran out we started shooting at them but we fucking missed them".
Khaled Taleb asked the Appellant Darwiche "Why did you shoot [Farouk Razzak] , he had nothing to do with this?" The Appellant Darwiche responded "Fuck them. Fuck all of them" .
It was the Crown case that the Appellant Darwiche's grievance had extended beyond Ziad and Gehad Razzak. He now sought revenge against the whole Razzak family as a result of what he perceived to be their breach of and disrespect for the peace agreement flowing from the shooting of Khaled Taleb.
At 1.21 pm on 29 August 2003, following the conclusion of the Friday midday prayer, Ali Abdul Razzak was shot and killed whilst seated in his car which was parked near the Lakemba Mosque (Count 5). Witnesses observed the passenger of a small black hatchback vehicle, who was holding a black pistol, get out of the car and fire shots at Ali Abdul Razzak through the windscreen of his car. The shooter got back into the passenger seat of the vehicle, which drove off. Both the driver and passenger of the black hatchback wore balaclavas. Fourteen fired cartridge cases were found at the scene.
The Crown contended that due to the injuries Khaleb Taleb had received when he was shot, about which there was medical evidence (T1770-1774), he was not physically able to participate in the shooting of Ali Abdul Razzak.
Khaled Taleb denied that he had a motive to kill Ali Abdul Razzak. His evidence was that at about 2.00 pm, when he was resting at his sister's house, the Appellant Darwiche arrived. Khaled Taleb went outside and saw a black Holden Barina - a "hottie" (that is, it was stolen). Ahmad (also known as "Gary" ) Awad was the driver of the vehicle. They drove to Khaled Taleb's uncle's home. In the course of the trip, the Appellant Darwiche said "Ali, he's dead ... I saw him take his last breath ... I saw one bullet hit him right up the top of his eye" (T1186). Darwiche told him that he had to get rid of "this piece" . Darwiche also said he had unloaded the whole magazine on him. Khaled Taleb asked "Did anyone see youse?" The Appellant Darwiche responded "We bala'd up". The Appellant Darwiche kept repeating "See what I did for you, see" . He handed Khaled Taleb a gun, a .40 calibre Glock pistol, instructing him to get rid of it. Khaled Taleb cut the pistol up with a grinder, which was located in the garage of his uncle's house (T1186-1189).
Call-charge records were consistent with Khaled Taleb's phone travelling from Casula to the area of his uncle's house (Exhibit EEE), and whilst the Appellant Darwiche's phone had been diverted to voicemail from 1.44 pm to 4.18 pm (Exhibit LLL), thereafter and until 6.21 pm, traffic between Khaled Taleb's, the Appellant Aouad's and the Appellant Darwiche's telephones became constant.
The Crown alleged that the Appellant Darwiche had various motives for the killing, aside from the lack of respect demonstrated by the breach of the peace agreement. He had told Khaled Taleb that he had never liked Ali Abdul Razzak, notwithstanding that he had been married to his sister, Khadjie Darwiche. Their marriage had been punctuated with acts of violence and their separation and divorce was bitter, albeit that Farouk Razzak acknowledged that the Appellant Darwiche had supported Ali Abdul Razzak at an AVO hearing. In any event, by 29 August 2003, Ali Abdul Razzak was no longer a member of the Darwiche family.
At about 1.30 am on 30 August 2003, the Aouad house at Lurnea and Zena Taleb's house at Casula were the targets of drive-by shootings. The Crown asserted that these occurred in retaliation for the Ali Abdul Razzak killing. In cross-examination, Khaled Taleb denied that the Appellant Darwiche was disinterested in these events, and call-charge records demonstrate that a series of calls were made between and amongst the Appellant Aouad, Khaled Taleb and the Appellant Darwiche in the aftermath.
At 5.00 pm on 8 October 2003, there was a shooting incident between the occupants of a blue Magna (Razzaks) and a silver 4WD (the Appellant Darwiche and the Appellant Aouad) at the intersection of Reilly and Liverpool Streets, Lurnea (the "Reilly Street shooting" ). Ballistics evidence linked one of the guns used during this incident with a firearm discharged during the Sir Joseph Banks Street shooting on 17 June 2001 at the Razzak apartment block (see [49] above).
Khaled Taleb's evidence was that he was on the veranda of the Appellant Aouad's parents' house in Boundary Street when the Magna drove past. Fearful that he might be shot, he hid near a neighbour's fence. He saw the silver 4WD pursue the blue Magna, after which he knocked on the neighbour's door and asked if he could hide in the backyard. Later he spoke to the Appellant Darwiche and the Appellant Aouad and saw a bullet hole in the windscreen of their car.
Khaled Taleb denied that he was in the silver 4WD at the time of the shootout. The descriptions of the occupants of that car provided by a witness, Rose D'Angelo, were consistent with the occupants being the Appellant Darwiche and the Appellant Aouad (Exhibit YYY). The Crown asserted that the call-charge records and telephone intercept material supported Khaled Taleb's account.
Khaled Taleb gave detailed evidence against the Appellant Darwiche with respect to events leading up to and including the Lawford Street shooting.
Khaled Taleb stated that at about 10.00 pm or 11.00 pm a few days after the Reilly Street shooting, the Appellant Darwiche picked him up in a white Honda Civic. The Appellant Aouad was also in the car. The Appellant Darwiche turned the music up and whispered in his ear that they had found out where the Razzaks were staying. The Appellant Darwiche then drove Khaled Taleb down Roberts Road and pointed out the relevant house to him in Lawford Street. The following day, Khaled Taleb was in the car with the Appellant Darwiche, the Appellant Aouad, and Mohammed Touma and they drove to a park in Bankstown. Prior to going to the park, the Appellant Darwiche instructed them to remove the batteries from their mobile telephones so that they would not be tracked by police. At the park, the Appellant Darwiche told them that he was certain that the Razzaks were staying at the Lawford Street house.
According to Khaled Taleb, the Appellant Darwiche then told them that "this thing's going to be done; we are going to be doing it tomorrow" . The Appellant Darwiche told them that Khaled Taleb would do the driving and that they would leave from the Appellant El-Zeyat's house because it was nearby and they could leave the guns there. After this discussion, Khaled Taleb went for a drive with the Appellant Darwiche, the Appellant Aouad and Mohammed Touma. The Appellant Darwiche indicated to him where on Roberts Road the car would be parked, then showed him where the car would be dumped.
In cross-examination, Khaled Taleb denied that he was the moving force in the planning and commission of the attack. He denied that during a meeting, the Appellant Darwiche had disowned him and that the Appellant Darwiche had stated "You should not shoot at a house" , before then leaving (T1416.25; T1611.38-1612.5).
It was the evidence of Wahib Hannouf that, hours before the Lawford Street shooting, between 8.00 pm and 9.00 pm on 13 October 2003, he went to visit Ali Osman at the Appellant Osman's home. The Appellant Darwiche was there speaking to the Appellant Osman. Wahib Hannouf greeted them and sat on a wall allowing the Appellant Darwiche and the Appellant Osman to continue talking. He heard the Appellant Darwiche say to the Appellant Osman "You'll be the driver so the Razzaks won't recognise you" , and then "Is the Hachie ready, the stolen car?" The Appellant Osman replied that his brother, Ali, had organised a vehicle and it was waiting nearby. The Appellant Darwiche then said "It's going to be me, Fidel, Erdt and Abbas [sic] and you'll be the driver" . The Appellant Osman nodded his head. The Appellant Darwiche said "Crazy Khaled was burning to drive the car, but he can't come because he's paralysed" (T1017).
Wahib Hannouf heard the Appellant Darwiche tell the Appellant Osman that he would see him at the Appellant El-Zeyat's house in Greenacre at 2.00 am, and that at 3.00 am "there would be fireworks" . He heard the Appellant Osman query the Appellant Darwiche as to whether he was sure that the Razzaks would be there. The Appellant Darwiche responded that one of his boys had driven past and had seen Gehad Razzak's 4WD, and that one of the Razzaks would be there for certain. After this conversation, the Appellant Darwiche left in his maroon Commodore.
Khaled Taleb gave evidence that on the afternoon prior to the Lawford Street shooting, the weapons were transported from the unit in Punchbowl to the Appellant El-Zeyat's home in David Street, Greenacre. A dark-coloured Nissan Pulsar had been stolen and was driven to the house between 4.00 pm and 7.30 pm. This was deliberately done during peak hour to minimise their chances of being pulled over by police. According to Khaled Taleb he, the Appellant Darwiche, the Appellant El-Zeyat, the Appellant Aouad, the Appellant Osman and Ahmad Awad were all present at the house. The Appellant Darwiche said the Nissan Pulsar was the vehicle they would use that night.
The weapons at the unit were two SKS rifles (which Khaled Taleb and the Appellant Aouad had taken there the day before from Abdul Darwiche's house in Green Valley), a Mach 10 and a nine-millimetre Glock automatic pistol. When they got to the unit, the Appellant Darwiche instructed them to clean all the bullets to make sure there was no hair or DNA on them. They each wore gloves when they performed this task (T1199-1205).
The Appellant Aouad then removed a plastic bag from one of the cupboards and handed it to the Appellant Darwiche, who removed a rocket launcher from it. The Appellant El-Zeyat "freaked out" and asked who was going to use the rocket launcher. The Appellant Darwiche said they were not sure whether they were going to use it at all. The Appellant Darwiche then indicated that he had to go home in case he was under police surveillance. He intended to return later that night and would go out via the backyard so that police would not know that he had left. Khaled Taleb, the Appellant Aouad, Mohammed Touma and the Appellant El-Zeyat remained at the house.
The Appellant Darwiche returned to The Appellant El-Zeyat's Greenacre home after midnight. The Appellant Osman arrived a short time later. When the Appellant Osman saw the rocket launcher, he too was concerned and wanted to know who would use it. The Appellant Darwiche told him they were still discussing it. The Appellant Osman told the Appellant Darwiche that they could not use it because the noise would burst their eardrums. The Appellant Darwiche continued to express his uncertainty and stated that the rocket launcher might pass straight through the house. Ultimately, it was decided the rocket launcher would not be used.
Khaled Taleb asked the Appellant Darwiche what the Appellant Osman was doing at the house. The Appellant Darwiche told him that the Appellant Osman would be driving because it was considered Khaled Taleb's injuries would become a liability if they were pulled over by police. Khaled Taleb did not want to show any signs of weakness and insisted that he wanted to drive, but the Appellant Darwiche refused.
The Appellant Darwiche then outlined each man's role. The Appellant Osman would drive the vehicle and park it in the spot he had earlier shown to Khaled Taleb while the Appellant Darwiche, the Appellant Aouad and Mohammad Touma would go to the house and each shoot at different parts of the house: the Appellant Aouad at the lounge room, Mohammed Touma at the middle of the house and the Appellant Darwiche at the bedroom. The Appellant Darwiche told them to start shooting at the top of the house and move down in an " S " shape, so they could still hit the occupants even if they dropped to the floor (T1212).
According to Khaled Taleb, the Appellant El-Zeyat then told the Appellant Darwiche that he too wanted to go, and the Appellant Darwiche agreed. The Appellant Darwiche took the black SKS rifle, Mohammed Touma took the one with the wooden handle, the Appellant Aouad took the Mach 10 and the Appellant El-Zeyat took the nine millimetre automatic Glock. The Glock was the same weapon that Khaled Taleb had used when he shot at Sarkis Timber on Watson Road in Padstow, and the same weapon that the Appellant Darwiche had used when he had shot at Bilal Razzak's house in Bankstown (T1212-1213).
The Appellant Darwiche, the Appellant Aouad, the Appellant El-Zeyat, the Appellant Osman and Mohammed Touma then left. Khaled Taleb remained at the Appellant El-Zeyat's house with Ahmad Awad. They went outside so they could hear the gunshots, but did not hear anything. Ahmad Awad then left and Khaled Taleb went back into the house.
A short time later, a car pulled up at the Appellant El-Zeyat's house. The Appellant Darwiche, the Appellant Aouad, the Appellant El-Zeyat and Mohammed Touma returned and entered through the back. The Appellant Osman was not with them (T1213). Khaled Taleb asked the Appellant Darwiche "What happened, did you do it?" The Appellant Darwiche replied "Yes, fucken oath we did." The Appellant Darwiche was in a hurry and indicated that he wanted to get changed and return to his house before police realised he was not there. The others also changed their clothes, and it was arranged that Ahmad Awad would burn them. The Appellant Darwiche then left.
During the evening of 16 October 2003, Khaled Taleb and the Appellant Aouad met up with the Appellant Darwiche at a park in Liverpool. The Appellant Darwiche said that he was sure that he had been the one to hit Ziad Razzak because he was the one shooting at the lounge room. The Appellant Darwiche said that the guns had been melted down and the vehicle had been doused in petrol and set alight. The Appellant Darwiche said to Khaled Taleb:
"Listen, just make sure that you don't fucking say nothing to the fucking coppers. If you do, all right, I'll kill you and your family to make sure that you don't turn against me - if you turn against me I'll kill you and your whole family".
Khaled Taleb assured the Appellant Darwiche that he had nothing to worry about (T1224-1225.52ff). Subsequently, the Appellant Darwiche made demands for money from Khaled Taleb for "all the drama" and for the weapons that had been used in the shootings. Khaled Taleb felt threatened that there would be serious consequences if he did not come up with the money.
Khaled Taleb and the Appellant Darwiche met again on 17 October 2003, firstly at the Appellant Darwiche's home in Silverwater and then at a park nearby. At the park, the Appellant Darwiche told Khaled Taleb that Gehad Razzak was saying that Khaled Taleb had been speaking with police, and asked if he was wearing a listening device. Khaled Taleb believed that the Appellant Darwiche would shoot him on the spot. To convince the Appellant Darwiche that he was not speaking with police and that he was not wearing a listening device, Khaled Taleb said that he shot Ali Razzak and that he had shot everyone else too (T1228).
Following this meeting, Khaled Taleb made up his mind that he would leave Australia and go to Lebanon. He left because he believed he was in danger, not because he was responsible for any killings. The Crown submitted that a series of intercepted phone calls between the Appellant Darwiche and Khaled Taleb made around this time was instructive of the true nature of the relationship between them, and demonstrated that the Appellant Darwiche was the dominant and more powerful person.
On 18 October 2003, Khaled Taleb sold some furniture and drove to Melbourne with his parents and his disabled brother. While on the road to Melbourne, Khaled Taleb had a telephone conversation with the Appellant Darwiche (Exhibit LLL). During that conversation, the Appellant Darwiche called Khaled Taleb a "fuckwit" and told him to "get the money you mother-fucker" . In another call, the Appellant Darwiche told off Khaled Taleb for mentioning money over the telephone and swore at him, calling him a "fuckin' gronk" (Exhibit MMM; T1536).
The Appellant Darwiche did not give evidence at the trial nor was any witness called in the defence case. The defence embraced the evidence of Abdul Taleb, to which reference will be made later in this judgment in the context of the Appellant Darwiche's Ground 6. The Appellant Darwiche's defence was marked by extensive cross-examination of the principal Crown witness, Khaled Taleb, and, to a lesser extent, Wahib Hannouf, concerning character, their various illegal activities, their dealings with the police, their motives to lie and the benefits each gained as a result of their co-operation with the authorities.
Crown Case Against the Appellant El-Zeyat
The Appellant El-Zeyat was charged with and convicted of the Lawford Street shooting, being the murders of Ziad Razzak and Mervat Nemra on 14 October 2003.
It was the Crown case that the Appellant El-Zeyat's participation in the joint criminal enterprise with the Appellant Darwiche and his co-offenders was a late development. Nonetheless, the Crown alleged that he played a crucial role by providing his home at David Street, Greenacre, as the location from which the participants embarked on their enterprise. The house was a short distance between the targeted address at Lawford Street and the place where the car was to be dumped and burned at Pandora Street. The Appellant El-Zeyat was also said to be one of the gunmen.
The Crown case against the Appellant El-Zeyat relied upon evidence from Khaled Taleb.
I have already referred to much of Khaled Taleb's evidence concerning the Lawford Street shooting in outlining the Crown case against the Appellant Darwiche. To the extent which that evidence relates to conversations or events involving the Appellant El-Zeyat, it is unnecessary to repeat it here. What follows are those parts of Khaled Taleb's evidence specifically relied upon by the Crown in its case against the Appellant El-Zeyat.
As mentioned at [86], Khaled Taleb gave evidence that the Appellant Darwiche, the Appellant Aouad, the Appellant El-Zeyat and Mohammed Touma all returned to the Appellant El-Zeyat's unit in Greenacre shortly after the Lawford Street shooting. Upon their return, the Appellant Darwiche changed clothes and left. Khaled Taleb, the Appellant Aouad, the Appellant El-Zeyat and Mohammed Touma remained in the lounge room waiting for the events of the night to be reported on the news.
While they were watching television, reference to the shooting appeared via a written banner on the bottom of the screen reporting that a house had been robbed, that one female was dead and a male person was in a critical condition in hospital. This occurred at about 5.00 am or 6.00 am. Khaled Taleb questioned the fact that a female had been killed and asked what she was doing there. They all then wondered which one of the Razzaks had been shot. Later that morning, between 6.30 am and 8.30 am, Khaled Taleb, the Appellant Aouad and Mohammed Touma left the Appellant El-Zeyat's house. Khaled Taleb dropped Mohammed Touma off at his house and he and the Appellant Aouad went to Liverpool (T1214-1215, 1223, 1456, 1458, 1475).
The Appellant El-Zeyat did not give evidence at trial nor did he call evidence in the defence case. His defence was marked by extensive cross-examination of the only witness in the case against him, Khaled Taleb. The cross-examination sought to establish that at the point where Khaled Taleb had given his account to the police, he well knew that the Appellant El-Zeyat had been charged with the offences. That, it was suggested, had given Khaled Taleb an incentive to come up with an account that included the Appellant El-Zeyat as one of the shooters.
Khaled Taleb rejected the suggestion that he had never visited the Appellant El-Zeyat's home, stating that he had been there the once on the evening of 13 October 2003. His character, his various illegal activities, his dealings with the police, motives to lie and the benefits he gained as a result of his co-operation, were all thoroughly explored in cross-examination.
The Crown Case Against the Appellant Aouad
It was the Crown case that the Appellant Aouad was one of the gunmen in the Lawford Street shooting on 14 October 2003.
The Crown case against the Appellant Aouad wholly relied upon evidence from Khaled Taleb. Again, it is unnecessary to repeat those parts of Khaled Taleb's evidence implicating the Appellant Aouad to which reference has already been made in relation to the Appellants Darwiche and El-Zeyat.
Khaled Taleb stated in evidence that upon the Appellant Darwiche's return from overseas, the Appellant Aouad was present when he (Khaled Taleb) reported to the Appellant Darwiche that he was "pretty sure" his shooters on 30 July 2003 had been "Gee and Ziggy" , being Gehad and Ziad Razzak. The Appellant Darwiche replied "... if it was them they are fuckin' dead, they are going to cop it" (T1163-1164), and later "This is fucking shit. I'm either going to die or spend the rest of my life in gaol. This is it, it is all out" (T1164.43ff). As mentioned at [53]-[56], Khaled Taleb detailed other conversations during which the Appellant Darwiche, in the presence of the Appellant Aouad, reported that the Razzaks were Khaled Taleb's shooters, and had indicated his intention to retaliate. This included the conversation in which Khaled Taleb suggested to the Appellant Darwiche that they should target Gehad Razzak first.
On 28 August 2003, the day after the Yanderra Street shooting, the Appellant Darwiche, Abdul Darwiche, the Appellant Aouad and Mohammed Touma visited Khaled Taleb at his sister's (Zena Taleb's) place in Darling Avenue, Casula. The Appellant Darwiche told Khaled Taleb, in the Appellant Aouad's presence, of the Yanderra Street shooting, and detailed how the Appellant Aouad had driven the car and fired at the premises, and how Ziad Razzak had run out on to the balcony holding a gun. The Appellant Darwiche said that Farouk Razzak also came out, and how he and Abdul Darwiche had fired at them.
Khaled Taleb described how on Friday, 29 August 2003 (the day of Ali Abdul Razzak's murder), he went from his sister's house at Casula to his uncle's house in Lurnea to cut up the gun. He said that event occurred in the afternoon at 2.00 pm, or maybe as late as 3.00 pm, when he left Casula to go over to the uncle's house. When Khaled Taleb was at his uncle's home, the Appellant Aouad arrived and he, along with Khaled Taleb's brother-in-law, Bassam (also known as "Barry" ) Taleb, took the gun.
Khaled Taleb also gave evidence of a telephone conversation he had with the Appellant Aouad following the drive-by shootings at the Aouad house in Lurnea and Zena Taleb's house on 30 August 2003. He stated that the Appellant Aouad had said "Yeah, they're motherfuckers. They shot at my house. They just drove by my house. They also almost hit my parents the motherfuckers" (T1192.15).
Khaled Taleb believed it was the following day that he met with the Appellant Aouad, who stated (T1192.50ff):
"Yeah, the mother fuckers, they drove by my house. I'm pretty sure it was Hussein Fahda and Gehad and Ziggy and Mohammed Razzak. I'm pretty sure it was them, the mother fuckers, they almost hit my parents. They're fucking dead; they're near fucking dead, like copping it."
Call-charge records for 30 August 2003 demonstrated that Khaled Taleb had telephone contact with both the Appellant Aouad and the Appellant Darwiche. It was the Crown case that the call-charge records supported Khaled Taleb's account and demonstrated a snapshot of the close association which existed between him, the Appellant Aouad and the Appellant Darwiche.
Khaled Taleb stated in evidence that on the day of the Reilly Street shooting, the Appellant Darwiche, in the Appellant Aouad's presence, gave him a detailed account of what had happened when they engaged in gunfire with the Razzaks. Two or three days later, Khaled Taleb saw the Appellant Aouad and the Appellant Darwiche, and inspected the bullet hole in the windscreen of the silver 4WD.
Khaled Taleb gave evidence that the Appellant Aouad was present when the Appellant Darwiche had threatened and demanded money from him during their meeting in a park on 17 October 2003 (see [89] above), several days after the Lawford Street shooting. He stated that the Appellant Aouad also threatened him on this occasion.
The Appellant Aouad did not give evidence nor was any witness called in the defence case. His defence was marked by extensive cross-examination of the only witness in the case against him, Khaled Taleb. The cross-examination related to contradictions between his testimony and his statement. His character, his various illegal activities, his dealings with the police, motives to lie and the benefits he gained as a result of his co-operation were all thoroughly explored during the cross-examination.
Crown Case Against the Appellant Osman
The Appellant Osman was jointly indicted and convicted of the murders of Ziad Razzak and Mervat Nemra.
It was not asserted that the Appellant Osman was one of the gunmen in the Lawford Street shooting. As the recital of the Crown case against each of the other Appellants indicates, his role in the joint criminal enterprise was to drive the gunmen to and from the scene. The Crown case against the Appellant Osman consisted of evidence from Khaled Taleb and Wahib and Haissam Hannouf.
It was the Crown case that, following the death of Ali Abdul Razzak (Count 5), Ziad and Gehad Razzak had gone into hiding. It became known that Ali Hamka had agreed that they could stay at his house in Lawford Street, which they did.
The Appellant Osman's recruitment as driver, some five to six hours before the killings, was a late change in the plans (see [76]-[83] above). It had become apparent that Khaled Taleb's knee injury (from having been shot) meant that he would not be able to fulfil that role.
I have already set out Wahib Hannouf's evidence of a conversation on 13 October 2003 in which the Appellant Darwiche was heard instructing the Appellant Osman to be the driver (see [76]-[77] above). Much of the evidence concerning the Appellant Osman's subsequent involvement in the Lawford Street shooting is also set out in the summary of the Crown case against the Appellant Darwiche. That evidence clearly formed the basis of the case against him.
In addition, Wahib Hannouf also gave evidence that on the day of the shooting (14 October 2003), he saw on the news that two people had been killed in a drive-by shooting and that over 100 rounds had been fired into the house. Later that afternoon, the Appellant Osman came to his unit and, in the course of a conversation, said to him "I hope God will forgive us for killing that woman" . Wahib Hannouf asked him what they had done and the Appellant Osman told him not to worry as they had machine guns. The Appellant Osman then said that if Gehad Razzak had been at the house, they would have used a rocket launcher (T1030.23-1031ff).
The Appellant Osman did not give evidence at his trial nor was any witness called in his case. His defence was marked by extensive cross-examination of Khaled Taleb, Wahib Hannouf and Haissam Hannouf.
Ballistics Evidence Connecting Crime Scenes
Amongst other evidence adduced in the Crown case, particular reliance was placed by the Crown upon ballistics evidence which linked several crime scenes, indicating that the same weapons had been used during different shootings.
Raphael Jackson, a forensic ballistics expert, gave evidence that none of the weapons fired at the crime scenes were ever recovered.
However, ballistics evidence served to link a number of the crime scenes.
A number of nine millimetre fired cartridge cases were located at the scenes of shootings at Watson Road, Padstow (28 February 2001), Sir Joseph Banks Street (17 June 2001) and the Lawford Street shooting (14 October 2003). Six fired cartridge cases from the Sir Joseph Banks Street crime scene were fired from the same Glock-type pistol as 15 fired cartridge cases from the Watson Road crime scene, as well as three fired cartridge cases from the Reilly Street crime scene (8 October 2003). Ten fired cartridge cases from the Sir Joseph Banks Street crime scene were fired from the same Glock-type pistol that fired 25 fired cartridge cases from the Watson Street crime scene, as well as 26 fired cartridge cases from the Lawford Street shooting crime scene.
A number of 7.62 x 39 millimetre fired cartridge cases and nine millimetre fired cartridge cases could be linked with respect to each of the Sir Joseph Banks Street, the Yanderra Street, the Reilly Street and the Lawford Street shooting crime scenes.
The gun that fired 28 7.62 x 39 millimetre cartridge cases during the Yanderra Street shooting also fired 28 7.62 x 39 millimetre cartridge cases at the Lawford Street shooting. The gun that fired 27 7.62 x 39 millimetre cartridge cases at Yanderra Street also fired 21 7.62 x 39 millimetre cartridge cases at Lawford Street.
Indemnities and Benefits Provided to Principal Crown Witnesses
The evidence at trial revealed certain indemnities and benefits were provided to Wahib Hannouf, Haissam Hannouf and Khaled Taleb. Having regard to some of the grounds of appeal, it is appropriate to summarise the evidence in this respect. As is apparent, evidence of all these matters was before the jury.
Khaled Taleb
Khaled Taleb was granted an indemnity dated 21 March 2006, by the Attorney General, in relation to 19 offences about which he provided information to police in his induced statement (T1242, 1254). A copy of the indemnity was tendered (Exhibit GGG). In cross-examination, Khaled Taleb stated that prior to 21 March 2006, a version of the indemnity had been forwarded to him in Lebanon. However, he had observed that the first version had a number of offences missing. He was told that it would be amended on his return to Australia (T1254).
The process of obtaining an indemnity commenced once Detective Inspector Oxford returned to Australia and provided supporting documents. Although he was not involved in the preparation of the indemnity, Detective Inspector Oxford was aware that there was a draft which required some minor amendments prior to the final version being prepared. He stated that the indemnity covered all the matters that Khaled Taleb mentioned in his statement (T1729).
Khaled Taleb returned to Australia prior to 21 March 2006, and after his return, his indemnity was amended (T1255).
Pursuant to s.32 Criminal Procedure Act 1986 , Khaled Taleb was indemnified from prosecution for offences in respect of his acts or omissions in relation to the following events:
(a) the wounding of Sami Mete and Naida Gogor on or about 13 February 2000 at Chester Hill;
(b) the wounding and detention of Navneet Muldaliar on or about 1 April 2001 at Green Valley;
(c) the wounding of Ahmed Al Fadly on or about 7 May 2001 at Liverpool;
(d) the wounding of Jonathan Malachi White on or about 29 May 2000 at Bankstown;
(e) the wounding of Hasham Yassine on or about 18 October 2000 at Punchbowl;
(f) the assault of Bilal Razzak on or about February 2001 at Bankstown;
(g) the discharge of firearms on or about 26 February 2001 at or near 46-52 Sir Joseph Banks Street, Bankstown;
(h) the discharge of firearms on or about 28 February 2001 at or near Watson Road, Padstow;
(i) the wounding of a male person at Tempe Park, Marrickville and detention of that person in the period 2001 to 2002;
(j) the discharge of firearms on or about 22 September 2001 at Bouvardia Street, Punchbowl and on another occasion in 2001;
(k) the discharge of firearms at or near Jellicoe Street, Bankstown on or about 4 April 2003;
(l) the murder of Ali Abdul Razzak on or about 29 August 2003;
The timing of these applications, and the evidence relied upon with respect to them, require an additional degree of caution in assessing the material.
In the same way that juries are instructed to use their common sense and their experience of life in their deliberations, this Court is entitled to approach the emergence of evidence such as this, given its timing and content, with very considerable circumspection. A too-ready acceptance of suspect material, provided long after the trial, would be contrary to the proper administration of justice. The Appellants were convicted by a jury following a lengthy trial. This Court should take a most guarded approach where evidence such as this is proffered long after the trial in support of a ground of appeal asserting that there has been a miscarriage of justice resulting from the absence at the trial of suggested fresh evidence.
This Court is not bound to accept the credibility or plausibility of evidence such as this, in the absence of cross-examination of the deponent. The Court may form a view for the purpose of a discretionary determination concerning leave, by perusal of all the affidavits and documentary material, viewed against the background of the trial.
In my view, the Appellant Darwiche has failed to demonstrate that the evidence contained in the affidavit of Fadi El-Jamal is fresh evidence. Even allowing great latitude on the application, it may readily be concluded that the evidence was at least constructively available to the Appellant Darwiche in that it could have been discovered or made available at the trial by the exercise of due diligence.
The Appellant Darwiche was aware, on 14 March 2006, that Fadi El-Jamal was not adhering to the contents of statements which he was said to have made. Fadi El-Jamal remained in the New South Wales prison system in and after March 2006. There is no evidence that he was not available if the legal representatives for the Appellant Darwiche wished to speak to him. There is no evidence that they took steps to do so.
It would have been apparent at that time, given the charges brought against the Hannouf brothers with respect to Fadi El-Jamal, that there was no love lost between Fadi El-Jamal and the Hannouf brothers. In circumstances where Fadi El-Jamal was asserting, contrary to the police evidence, that he had not signed the Samear Havda statements, it would have been apparent to the Appellant Darwiche and his legal representatives that there was a level of tension between Fadi El-Jamal and the police. The Appellant Darwiche and his legal representatives were put on notice that Fadi El-Jamal was asserting, at that time, that he had not signed statements which were damaging to the Appellant Darwiche.
There is no evidence adduced in support of the application from the trial solicitor or counsel for the Appellant Darwiche concerning what was or was not known, or what was or was not done before or during the trial (and why) concerning Fadi El-Jamal, once it was known by 14 March 2006 that he was not coming up to proof.
I am well satisfied that this constitutes a form of constructive notice, and certainly a situation where a prudent and competent legal representative would seek to speak to Fadi El-Jamal concerning what occurred at the time when the statements had allegedly been taken and signed.
It is notable that the affidavit of Fadi El-Jamal does not state the he told no one about the matters alleged in his affidavit until recent times. The position may be contrasted with the affidavit of Sheikh Tay Eldeen Alhilali in the associated appeal.
Likewise, it is notable that there is no affidavit from the Appellant Darwiche in support of his application.
It is noteworthy that, on 28 July 2006, trial counsel for the Appellant Osman sought a Jones v Dunkel direction arising from the Crown not calling a range of persons, including Fadi El-Jamal (SU175-176). The Crown Prosecutor made the following submission and counsel did not press the application (SU176):
"CROWN PROSECUTOR: The Crown submits your Honour should not give a Jones v Dunkel direction in relation to any of those witnesses. ... Fadi El-Jamal, though there is no explanation before the jury, it was a difficult matter for the Crown to explain before the jury he had in fact given a statement implicating these accused and then recanted and said that he had not in fact given that statement. It is not always necessary in order to determine a Jones v Dunkel.
McSPEDDEN: I do not press that."
An assessment, on the papers, of Fadi El-Jamal's account gives rise to the following concerns which relate to credibility and plausibility:
(a) There is no doubt that Fadi El-Jamal was an associate of the range of persons involved in the trial, either as Crown witnesses or accused persons. The contents of the statements which the police assert Fadi El-Jamal made in 2003 and 2004, using the pseudonym Samear Havda, do not seem fanciful. It is noteworthy that, in his evidence on the voir dire on 14 March 2006, Fadi El-Jamal did not deny telling police what was contained in the statements. He said he could not recall.
(b) It is clear that Fadi El-Jamal declined to adopt the statements at the voir dire on 14 March 2006, by which time he had been charged with murder. However, no allegation of assault or pressure was made by him at that hearing.
(c) Certainly by March 2006, if not well before, there was clear antagonism between the El-Jamal brothers (Fadi and Houssam) and the Hannouf brothers (Wahib and Haissam) - there was no good reason why the El-Jamal brothers would withhold any knowledge which they had which was adverse to the Hannouf brothers.
(d) Long after the trial and the hearing of the appeal, Fadi El-Jamal now asserts that there was police pressure and an assault upon him.
(e) Affidavits are on from the relevant police officers which explain the circumstances in which the statements were taken and deny any misconduct - the content and context of the Samear Havda statements tend to undermine the credibility or plausibility of Fadi El-Jamal's recent affidavit.
There is a strong flavour of recent invention surrounding the affidavit of Fadi El-Jamal. Even if his evidence was admitted before the jury, careful directions would have been required concerning any reliance being placed upon it, in particular in the absence of corroboration.
It is fair to observe from the totality of the material available to the Court on this application, including the complete transcript of 14 March 2006, the statements said to have been made by Fadi El-Jamal in 2003 and 2004 and the affidavits of Detectives Tuckerman and Wakeham, that very significant credibility issues affect that affidavit. I am not persuaded that the affidavit of Fadi El-Jamal is credible or plausible.
Even if the evidence was fresh and credible, it is difficult to see how this evidence could be deployed by the defence in this trial. Defence counsel would have to attempt to challenge the credibility of Detectives Tuckerman and Wakeham by reference to events unrelated to Khaled Taleb so that, in turn, there could be a challenge to the credibility of the evidence of Khaled Taleb and, perhaps, an attempt to bolster the credibility of the evidence of Abdul Taleb. All of this has an air of unreality about it.
I do not accept Mr Lange's submission that the Crown has difficulty in articulating how the contents of Fadi El-Jamal's statements could be placed before a jury. The forensic purpose which Mr Lange attempts to advance would require counsel for the Appellant Darwiche seeking to establish that Fadi El-Jamal's statements contained incriminating assertions concerning the Appellant Darwiche. In my view, the Crown would be entitled to adduce evidence beyond that. All of this undermines the submission that, even if the evidence is fresh and credible, that it could have been deployed at this trial in a way that establishes a miscarriage of justice.
I have carefully considered the material provided to the Court with respect to the Appellant Darwiche's application. The application fails with respect to each of the three questions to be asked on the application. I am entirely unpersuaded that the Appellant Darwiche ought be granted leave to rely upon Proposed Ground 12.
The same conclusion may be reached with respect to the Appellant El-Zeyat's Proposed Ground 7.
There is no affidavit from the Appellant El-Zeyat in support of this application asserting prior ignorance of Fadi El-Jamal's account. By way of contrast, there is an affidavit from the Appellant El-Zeyat (sworn 14 July 2010) in the associated appeal. In that affidavit, the Appellant El-Zeyat states that he had only recently heard of the conversation between Bassam Said and Sheikh Taj Eldeen Alhilali, being the fresh evidence adduced in that appeal.
The application by the Appellant El-Zeyat to rely upon Proposed Ground 7 is accompanied by an affidavit of Ender Nedim sworn 8 March 2011. Mr Nedim states in that affidavit that he started acting for the Appellant El-Zeyat around early 2006 and was instructed in the first trial involving the murder of Ahmed Fahda and that he instructed Mr Gregory Stanton of counsel in that matter. Mr Nedim states that he has continued to act for the Appellant El-Zeyat "on the appeal" .
Mr Nedim does not state that he acted for the Appellant El-Zeyat at the second trial, being the Lawford Street shooting trial. It is the second trial which is relevant for present purposes.
Mr Nedim recites the receipt of the affidavit of Fadi El-Jamal and states that he has "never received instructions from Mr El-Zeyat to the affect [sic] that Joe Osman and Houssam El-Jamal were able to provide the evidence contained in there [sic] respective affidavits" (paragraph 7, affidavit, E Nedim, 8 March 2011). A statement that Mr Nedim never received instructions from his client that Fadi El-Jamal was able to provide evidence as contained in the affidavit, does not demonstrate that the material is fresh evidence.
There is no evidence from the trial solicitor for the Appellant El-Zeyat at the second and presently relevant trial as to what was known or done with respect to Fadi El-Jamal (after 14 March 2006).
It has not been demonstrated that this evidence is fresh and that it is credible and plausible. Even if credible, it could not have been deployed in a way which allows this Court to conclude that a miscarriage of justice has resulted.
I would refuse the Appellant Darwiche leave to rely upon Proposed Ground 12.
The Appellant El-Zeyat ought be refused leave to rely upon Proposed Ground 7.
Applications by Appellant Darwiche to Add Ground 13 and the Appellant El-Zeyat to Add Ground 8 - The Houssam El-Jamal Affidavit
The Appellant Darwiche's Notice of Motion of 1 February 2011 and the Appellant El-Zeyat's Notice of Motion of 14 February 2011 sought leave to add the following as Ground 13 (Appellant Darwiche) and Ground 8 (Appellant El-Zeyat):
"A miscarriage of justice resulted from the absence at the trial of fresh evidence, namely the evidence provided by Houssam El-Jamal in the affidavit affirmed on 31 January 2011."
The affidavit of Houssam El-Jamal states that, on 8 November 2003, he was kidnapped by Wahib and Haissam Hannouf at gunpoint from his family's smash repair business at Condell Park. He states that he was released on 11 November 2003 after his family paid a ransom to Wahib and Haissam Hannouf. Soon after his release, he states that he made a full statement to the police.
Houssam El-Jamal states that, on 8 January 2004, he was arrested and charged with an armed robbery offence. He was refused bail and was held at the Metropolitan Remand and Reception Centre at Silverwater for about two weeks. He states that, on or about 21 January 2004, he was transferred to the Long Bay Correctional Centre and was placed within the SPC Section in C Wing.
He states that, approximately four weeks later, he was approached by a correctional officer and advised that he would need to be moved within the SPC Section to B Wing, as four Hannouf brothers would be arriving in C Wing, being Wahib, Haissam, Ahmad and Rabi Hannouf. He states that he was moved to B Wing and remained there for about one year and five months.
Houssam El-Jamal says that, soon after his arrival in B Wing, he was approached by the intelligence officer at Long Bay Correctional Centre and asked whether he had any issues with a person named Bassam Said as it was planned to move him to B Wing. He responded that he did not know the person and that there would not be any issue if he was moved to the same Wing.
Houssam El-Jamal states that, thereafter, he developed a friendship with Bassam Said, who informed him that he had been moved from C Wing due to consistent communication over the walls in C Wing to the Hannouf brothers. He states that Bassam Said told him, in effect, that police had forced him to make statements adverse to the Appellants Aouad and El-Zeyat with respect to the Fahda murder.
He alleges that Bassam Said would communicate with the Hannouf brothers and that he overheard these conversations.
Houssam El-Jamal alleges that he heard, on different occasions, Wahib and Haissam Hannouf speaking to Bassam Said (who was on the other side of the wall dividing the two yards) and telling him that they had, in effect, given false information to police about the Appellant Darwiche. Critically, Houssam El-Jamal expressly asserts Wahib Hannouf to have discussed telling police that he overheard the Appellant Darwiche say to the Appellant Osman that "there would be fireworks at the Razzaks tonight" , with an inference that either Wahib Hannouf had fabricated this evidence or it was based on information improperly given to him by the police. Houssam El-Jamal asserts he heard both of the Hannouf brothers discussing "how easy it was to make their statements because cops were spoon feeding them information relevant to the investigation" .
Houssam El-Jamal does not state in the affidavit that he kept these matters to himself thereafter.
The application by the Appellant Darwiche is not accompanied by any affidavit of a solicitor who acted for him at trial or on appeal. Nor is there any affidavit from the Appellant Darwiche himself. Accordingly, there is no evidence as to the time when the Appellant Darwiche, or any of his legal representatives, became aware of any of the matters alleged by Houssam El-Jamal in his affidavit of 31 January 2011.
The affidavit of Mr Nedim sworn 8 March 2011 does not assert that he acted for the Appellant El-Zeyat at the Lawford Street shooting trial. An extract from Mr Nedim's affidavit appears at [492] above.
With respect to the applications based upon the affidavit of Houssam El-Jamal, the Crown relied upon the following affidavits and report:
(a) affidavit of Maria-Rosa Etnasios sworn 18 March 2011;
(b) affidavit of Mark Wakeham sworn 18 March 2011;
(c) affidavit of Tamer Kilani sworn 14 March 2011;
(d) affidavit of Russell William Oxford sworn 18 March 2011;
(e) affidavit of Robert Neil Tuckerman sworn 18 March 2011;
(f) report dated 18 March 2011 from Wayne Creighton, Department of Corrective Services.
The affidavits and report furnished by the Crown indicate that steps were taken by the investigating police officers not to inform any potential witness of the account given by any other potential witness in the course of taking statements, including statements taken from Bassam Said, Khaled Taleb, Wahib Hannouf and Haissam Hannouf. There is also a denial by Wahib and Haissam Hannouf that they said the things attributed to them by Houssam El-Jamal. These denials are contained, in a hearsay form, at paragraphs 18-25 of the affidavit of Russell William Oxford sworn 18 March 2011. That affidavit reveals that the Hannouf brothers are currently living at an undisclosed location under new identities (paragraph 16). The report of Mr Creighton indicates that it would have been possible for inmates to communicate from yard to yard, although they were neither allowed nor encouraged to do so given the reasons for inmates being held in the SPC.
Submissions
Mr Lange submits that the affidavit of Houssam El-Jamal goes to three issues:
(a) the credibility of Wahib Hannouf;
(b) the ability of Wahib and Haissam Hannouf to co-ordinate their accounts; and
(c) the influencing of witnesses by investigating officers.
Mr Lange submits that this evidence would serve to undermine the evidence of Wahib Hannouf which, in certain respects, was relied upon by the Crown as support for the evidence of Khaled Taleb. Further, he submits that the affidavit of Houssam El-Jamal points to discussion between the Hannouf brothers for the purpose of co-ordinating their accounts, and that this evidence would assist trial counsel to undermine the Crown case that the two witnesses were independent for the purpose of assessing the extent to which their accounts could support each other.
Mr Lange submits that the affidavit of Houssam El-Jamal could be used to undermine the evidence of Khaled Taleb. He submits that evidence of a willingness to engage in what was apparently improper conduct (the provision of information to prospective witnesses) would be admissible to prove improper conduct not only on that occasion, but also on other occasions, particularly where the investigation is one and the same: R v Beattie [1996] 40 NSWLR 155 at 163.
Mr Ramage QC submitted in writing that any evidence which casts further doubt on the credibility of the Hannouf brothers was important evidence for the defence to use at the Lawford Street shooting trial. Whilst acknowledging that the evidence of the Hannouf brothers was not directly admissible against the Appellant El-Zeyat, he submitted that it is highly likely that the jury took into account the evidence of Wahib Hannouf. In oral submissions, Mr Ramage QC acknowledged that his client's application concerning this trial involved what he described to be "a long bow" (T14.20, 22 March 2011).
The Crown submits that, even if the evidence passed the first two tests (which the Crown said it did not), when evaluated in light of all the evidence at the trial, the affidavit of Houssam El-Jamal would not lead to the conclusion that there is a significant possibility that the jury, acting reasonably, would have acquitted either of these Appellants.
With respect to the Appellant El-Zeyat's application, the Crown submits that, quite apart from issues of freshness, credibility and plausibility, the content of the affidavit at its highest relates to things allegedly said by Bassam Said, Wahib Hannouf and Haissam Hannouf. Bassam Said was not a Crown witness at this trial. The evidence of Wahib Hannouf and Haissam Hannouf did not form part of the Crown case against the Appellant El-Zeyat. Even if the first two questions could be answered favourably on this application, the third question must be answered in the negative.
Decision
Once again, the discretionary question for determination is whether leave ought be granted to rely upon the proposed grounds of appeal.
In the course of assessing the applications based upon the affidavit of Fadi El-Jamal, I made a number of observations concerning the approach which this Court should take where an application such as this is made (see [467]-[473] above). Those comments apply equally to the application based upon the affidavit of Houssam El-Jamal.
I turn firstly to the application by the Appellant El-Zeyat. As mentioned earlier (at [490]-[492]), the affidavit of Mr Nedim does not state that he was the solicitor for the Appellant El-Zeyat at the second trial. There is no evidence on the application from the Appellant El-Zeyat or his solicitor at the second trial which addresses issues pertinent to the claim that this is fresh evidence. Houssam El-Jamal does not state in the affidavit that he remained silent about the events alleged to have occurred in 2004.
I am not persuaded that the affidavit of Houssam El-Jamal is fresh evidence. It would have been apparent to the Appellant El-Zeyat and his legal representatives, by the time of the trial in 2006 (at the latest), that there was great antagonism between the El-Jamal brothers and the Hannouf brothers. So much would have been clear, at the least, from the terms of the indemnities provided to the Hannouf brothers which referred to alleged offences committed against the El-Jamal brothers (see [138], [141]-[144], [151], [153] and [156] above).
Likewise, the Appellant El-Zeyat and his legal representatives would have been aware of the stance taken by Fadi El-Jamal when giving evidence on the voir dire on 14 March 2006. There is simply no evidence as to what was considered and done (and not done) by the legal representatives for the Appellant El-Zeyat with respect to Houssam El-Jamal.
Even if the Houssam El-Jamal material was demonstrated to be fresh evidence, I am not persuaded that it constitutes credible and plausible evidence in the circumstances of this case. The circumstances in which the affidavit came forward long after the trial, and after the appeal was heard, bears upon this assessment by the Court. The allegations contained in the affidavit of Houssam El-Jamal are disputed. The affidavit of Houssam El-Jamal has a number of disturbing features. At the time of these alleged conversations, he clearly had a strong dislike for Wahib and Haissam Hannouf. He alleged that they had committed serious offences against him in November 2003. He told police (in an induced statement made on 23 March 2004) that he was very angry with the Hannoufs and that he had committed a drive-by shooting on Haissam Hannouf's house in December 2003. In 2004, he clearly had a continuing strong dislike of the Hannoufs, so any allegation by him against them could be accurately described as biased.
It seems improbable that, had Houssam El-Jamal heard the conversations over the prison wall as alleged in his affidavit, he would have remained quiet about these alleged statements from 2004 until after the trial in 2006, given the value of such material (if true) to attack the Hannouf brothers. That Houssam El-Jamal would stand back and allow the Hannoufs to obtain the benefits of the indemnities, which extended directly to charges of offences committed against him, is completely unexplained and is not credible.
The Crown points as well to additional features of Houssam El-Jamal's affidavit which undermine its credibility and plausibility:
(a) he said nothing about the alleged statements of the Hannouf brothers to the authorities, including his police handler in 2004, in circumstances where he had the opportunity to make a report, and had no reason to remain silent;
(b) the Hannouf brothers were called by the Crown in the prosecution of Fadi El-Jamal for the murder of Mark Nichols and the defence sought to impugn their character, but it was not asserted that they had perverted the course of justice in the manner now asserted by Houssam El-Jamal.
It has not been demonstrated that this material is credible or plausible for the purpose of the second question to be asked on an application to adduce fresh evidence.
Even if this material was fresh and credible, there is no utility in the Appellant El-Zeyat being granted leave to rely upon it. Bassam Said was not a Crown witness in the present trial. Wahib Hannouf and Haissam Hannouf did not give evidence which incriminated the Appellant El-Zeyat. Accordingly, the affidavit of Houssam El-Jamal is irrelevant to the Crown case against the Appellant El-Zeyat.
I would refuse him leave to rely upon Proposed Ground 8.
I turn to the application by the Appellant Darwiche.
There is no affidavit from the Appellant Darwiche or his legal representatives at the trial concerning knowledge, or lack of knowledge, with respect to Houssam El-Jamal's allegations as to what he heard over the prison walls in 2004. The application of the Appellant Darwiche faces the same fundamental problems as that of the Appellant El-Zeyat.
Even if the freshness test was satisfied, it has not been demonstrated that the affidavit of Houssam El-Jamal is credible and plausible. The problems with respect to credibility and plausibility are manifest on an examination of the documentary material which bears upon the question (see [521]-[523] above). I have regard, as well, to the way in which this evidence has come forward, long after the trial and after the hearing of the appeal itself.
If Houssam El-Jamal's affidavit had been available at the trial, defence counsel may have cross-examined Wahib and Haissam Hannouf concerning the statements allegedly made and overheard by Houssam El-Jamal in prison. It would have been open to counsel for the Appellant Darwiche to call Houssam El-Jamal as a witness at trial. This would have involved a witness with a clear bias against the Hannouf brothers being called to give uncorroborated evidence with respect to statements allegedly overheard in prison. One would expect trial counsel to pause before calling a witness such as Houssam El-Jamal at the trial, leaving his evidence (and cross-examination) as the last piece of evidence which the jury would hear in the trial.
Even if this evidence had been available to the Appellant Darwiche at trial, when evaluated in light of all the evidence, it has not been demonstrated that the material would lead to the conclusion that there is a significant possibility that the jury, acting reasonably, would have acquitted him.
In reaching this conclusion, I have also had regard to the submission that this evidence could have been utilised by trial counsel in accordance with R v Busby and R v Beattie . I am not persuaded that this evidence could assist at trial, in accordance with the principles considered in these cases.
The Appellant Darwiche has not satisfied any of the three cumulative tests required on an application to rely upon fresh evidence. In my view, he should be refused leave to rely upon Proposed Ground 13.
Conclusion
None of the Appellants has made good any ground of appeal against conviction advanced at the hearing of the appeals in June-July 2010.
The Appellants Darwiche and El-Zeyat have not demonstrated that leave ought be granted to either of them to rely upon the proposed grounds based upon suggested fresh evidence. In declining to grant leave, regard has been had to the lack of merit of the proposed grounds and the time and circumstances in which they came to be advanced before the Court. In reaching this conclusion, I have not overlooked the nature of the charges of which they were convicted and the sentences imposed.
It is appropriate to observe that the law of this State, in the from of Part 7 of the Crimes (Appeal and Review) Act 2001 , permits a convicted person to make application to the Supreme Court for an inquiry into conviction upon the basis that a doubt or question as to guilt exists. These provisions are available in the event that there is said to be reliable material which gives rise to a doubt or question as to guilt. These provisions are available to the Appellants, as they are to all persons convicted of offences in this State.
Proposed Orders
With respect to the Appellant Darwiche, I propose the following orders:
(a) extend time for filing of a Notice of Appeal;
(b) refuse leave to add Proposed Grounds 11, 12 and 13;
(c) appeal against conviction dismissed.
With respect to the Appellant Aouad, I propose that his appeal against conviction be dismissed.
With respect to the Appellant El-Zeyat, I propose the following orders:
(a) refuse leave to add Proposed Grounds 7 and 8;
(b) appeal against conviction dismissed.
With respect to the Appellant Osman, I propose the following orders:
(a) extend time for filing of a Notice of Appeal;
(b) appeal against conviction dismissed.
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Decision last updated: 08 April 2011
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