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 3
Decision:
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Darwiche v R [2011] NSWCCA 62
Case
[2011] NSWCCA 62
Decision Date
CaseChat Overview and Summary
In the matter of Darwiche v R, the High Court of Australia was presented with an appeal against convictions by multiple appellants, all of whom were found guilty of two murders arising from a feud between two groups. The incident in question involved a firearm attack on a suburban house, resulting in the deaths of Ziad Razzak and Mervat Nemra. One of the appellants, Darwiche, was additionally convicted of other offences related to the same feud, including the malicious discharge of a firearm with intent to cause grievous bodily harm and the attempted murder of another individual. The appellants contended that the joint trial was prejudicial and resulted in a miscarriage of justice.
The legal issues before the court encompassed the propriety of the joint trial, the admissibility of evidence from indemnified witnesses, the reliability of evidence, and the potential for a miscarriage of justice due to procedural errors during the trial. The court was also tasked with determining the appropriate approach to applications for leave to add fresh grounds of appeal after the original hearing but before judgment was delivered.
The court found no error in the decision to conduct a joint trial, as it was deemed appropriate given the intertwined nature of the offences. The court further concluded that the trial judge had given appropriate directions to the jury regarding the use of evidence against each appellant, and that the jury had reached its verdicts impartially. The court also held that there was no error in the direction concerning the use of indemnified witnesses' evidence and that the assessment of credibility and reliability of witnesses was within the jury's function. No miscarriage of justice was found to have occurred, and the appeals were dismissed. The court denied applications by two appellants for leave to add further grounds of appeal, finding that the suggested fresh evidence was not credible or likely to cause a reasonable doubt about the appellants' guilt.