El Zayet v The Queen; Aouad v The Queen; Darwiche v The Queen; Osman v The Queen
[2011] HCATrans 342
[2011] HCATrans 342
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S163 of 2011
B e t w e e n -
NASEAM EL ZAYET
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Sydney No S237 of 2011
B e t w e e n -
RAMZI AOUAD
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Sydney No S262 of 2011
B e t w e e n -
ADNAN DARWICHE
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Sydney No S378 of 2011
B e t w e e n -
ABASS OSMAN
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal
FRENCH CJ
GUMMOW J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 9 DECEMBER 2011, AT 11.24 AM
Copyright in the High Court of Australia
MR M.C. RAMAGE, QC: May it please your Honours, I appear for the applicant, El-Zayet, with my learned friend, MR I.S. McLACHLAN. (instructed by Sydney Criminal Lawyers)
MR P.J.D. HAMILL, SC: May it please the Court, I appear with my learned friends, MR K.M. CONNOR, SC and MR C.J. SMITH, for the applicant, Aouad. (instructed by George Sten & Co)
MR T.E.F. HUGHES, QC: May it please your Honours, I appear with my learned friend, Mr P.D. LANGE, for the third applicant, Darwiche. (instructed by Lawyers Corp Pty Limited)
MR H.K. DHANJI, SC: May it please the Court, I appear for the applicant, Osman, with my learned friend, MR A. FRANCIS. (instructed by Kiki Kyriacou Lawyers)
MR D.U. ARNOTT, SC: I appear for the respondent with MS J.A. GIRDHAM, in all matters, your Honour. (instructed by Solicitor for Public Prosecutions (NSW))
FRENCH CJ: Now, we note that there are some overlapping issues in these appeals and hopefully counsel, subject to the appropriate attention to the interests of their clients, will try to avoid overlap.
MR RAMAGE: Your Honours, though we are first on the list – my applicant is first on the list – it is proposed that my learned friends would go ahead of me, particularly in respect of arguing the general ground of the joinder of the charges and the section 29(2) ground and my client has a discrete ground. We would seek to supplement what we have filed insofar as is needed in respect of that first ground, but we have the separate ground of the admission of the direction that one indemnified witness ‑ ‑ ‑
FRENCH CJ: …..of the indemnified witnesses.
MR RAMAGE: Yes.
FRENCH CJ: Yes, all right.
MR RAMAGE: Now, how that fits in with convenience with the ground my learned friend, Mr Hughes – I do not know whether the Court wishes to hear us first or my learned friend first, but it is entirely in the Court’s hands.
FRENCH CJ: I think, perhaps, Mr Hughes, you might start. Is that the arrangement?
MR HUGHES: Well, it may be convenient in the Court’s view to deal with Darwiche first because we are not concerned with the joinder argument or the section 29(2) argument. So, is that the course that your Honours would propose?
FRENCH CJ: Yes, Mr Hughes.
MR HUGHES: Your Honours, in Moti, decided but two days ago, this Court placed limits upon the permissibility of the provision of - by prosecuting authority of payments or other benefits to persons whose evidence they seek in order to support criminal charges. The definition of the limits of such permissibility is, we submit respectfully, of considerable importance because of the need in aid of the robust administration of criminal justice under contemporary conditions for prosecuting authorities to know what the limits are. That point is made in paragraph 4 of Part IV of our summary of argument.
The applicant’s submission is that the prosecuting authorities in this case, and I am speaking from the perspective of my particular client, exceeded the relevant limits in giving rise – such excess, we say, giving rise to a miscarriage of justice within the meaning of that expression as used in section 6 of the Criminal Appeal Act.
FRENCH CJ: I am sorry, Mr Hughes, just before you go any further, I think you required an extension of time. Is that opposed ‑ ‑ ‑
MR ARNOTT: It is not opposed, your Honour.
MR HUGHES: I am so sorry, your Honour.
FRENCH CJ: Yes, you have it. Yes, very well.
MR HUGHES: ‑ ‑ ‑ and giving rise, we submit, to an entitlement of the accused, Darwiche, to a new trial from which the evidence that exceeded the relevant limits must be excluded. In the case of Darwiche, there is in additional material provided to the Court, your Honours, a deed of agreement which was an exhibit at the trial omitted, however, from the application book. It was an agreement which is annexed to an affidavit ‑ ‑ ‑
GUMMOW J: …..go to Mr Reslin’s sworn - filed 8 December.
MR HUGHES: Yes, and it is exhibit D, I think, to the affidavit. I would ask your Honours to take the affidavit as read. There is no opposition to that.
MR ARNOTT: No opposition.
MR HUGHES: I am obliged to my learned friend. Your Honours will have the deed, or a copy of it, exhibit D of the affidavit. I would like briefly to refer to its terms. The deed, your Honours, was to operate for four years. It obliged Taleb to give evidence at the trial of Darwiche and his co‑accused – see, if I may ask your Honours, clause 3.
It obliged the New South Wales Crime Commission to provide income support, described as an allowance, not only to Taleb, but to seven other people whose precise identities are excluded from the print of the exhibit, over a period of four years. The performance of that obligation over the stipulated period would involve an outlay of $500,000 in round figures.
Taleb and members of his family, according to clause 9(k) of the deed, were entitled to the provision for their use of a vessel – a boat. In clause 9(i), the Crime Commission obliged itself to pay the costs of flying any relations of Taleb to Australia, should they be successful applicants for immigration. The terms of the deed make it clear, your Honours, in our respectful submission, that the payments and other benefits to the indemnified witness, Mr Taleb, and members of his family, far exceeded the limits of basic or appropriate living support countenanced by this Court earlier this week in Moti.
Provision by the Crime Commission of the benefits prescribed by the deed constituted, we say, an impermissible inducement to Taleb to give evidence at the trial. The benefits provided by the deed are additional, of course, to the very favourable provision of an indemnity to Taleb for multiple offences, perhaps excluding murder, but the terminology of the deed is doubtful as to whether that exclusion is applicable. That is the point that I do not need to deal with.
The principle to which we appeal in support of a grant of special leave is that it is appropriate for this Court to consider, albeit closely on Moti’s Case, the permissible extent to which prosecuting authorities, in this case it turns out to be the New South Wales Crime Commission, should confer benefits upon indemnified witnesses such as Mr Taleb. We submit that it is appropriate in a case such as this to consider whether the payments and benefits conferred by the deed, in this case, exceed what is reasonably necessary for the exigencies in which the protected witness finds himself or herself as a result of having to give evidence.
We say that it is manifestly clear that in this case the benefits provided to Taleb exceed a permissible allowance to meet the exigencies of his situation. That is the argument and in that case we submit that it is appropriate that there be a new trial in which the evidence to which we took exception in the Court of Criminal Appeal, not I must say before the trial judge, because other counsel was there engaged, should be reviewed on the basis that the provision of excessive benefits gives rise to a necessity to strike out so much of the evidence as indicated that Mr Taleb got much more than he was entitled to by reason of the exigencies of the occasion.
FRENCH CJ: The proposed grounds of appeal that are relevant to this argument, I think, are in your draft notice at 492 and that is that he complained that the Court of Criminal Appeal erred in holding that you could not raise this argument on appeal because there had never been a complaint or an application for a stay below - I think that is at paragraph 171 of their Honours’ reasoning - and that they erred in concluding that there was no miscarriage of justice even though it failed to consider whether it was apt to bring – those two grounds really are linked together, are they not?
MR HUGHES: Yes, they are. I must acknowledge the difficulty of asserting error by the learned trial judge when her Honour was never asked to consider the point, but the case falls within the miscarriage of justice provision in section 6(1) which is a separate ground from error.
FRENCH CJ: Nevertheless, you would accept, would you, that the fact that the matter was not raised at trial is relevant to the question and was a proper consideration for the Court of Appeal?
MR HUGHES: It must be relevant just as in a case I did many years ago, Giannarelli v The Queen in Victoria. This Court held that even though the particular point of statutory construction was raised neither at the trial of the Giannarellis or on appeal to the Court of Criminal Appeal in Victoria, the High Court entertained the matter. Here, at least, the matter was ventilated. The complaint was ventilated – the abuse of process ground in the Court of Criminal Appeal and did not find favour in that court as your Honours see. Of course, we say that if what happened was an abuse of process that is a matter that can be raised any time, even late.
In the case of the Hannoufs, the case as to the extent of the benefits is stark indeed. The evidence in the affidavit material – my learned friend will correct if he thinks that I am overstating it – was that the arrangement with the Hannoufs for giving evidence included an agreed stipulation that if the Hannoufs gave their evidence satisfactorily, in the sense of sticking to the truth, approximately $2 million worth of assets which had been confiscated, seized by the Crime Commission, would be returned to the Hannouf family. That, of course, manifestly exceeded anything that could be proportional to the exigencies in which the Hannoufs found themselves in connection with the trial.
Those are the points. They are short. Your Honours may think that they have an aspect of distinct importance given that these days so many criminal cases, and serious criminal cases, are cases in which the prosecution has to rely perforce on the evidence of tainted witnesses, accomplices and so forth. I doubt whether the matter can be expressed in more detail with any utility.
FRENCH CJ: Mr Hughes, there was a third point, I think, that you had in your grounds and that was the evidence that was given at trial, albeit without objection, about the Crown’s difficulty in getting a number of witnesses to co‑operate and come along.
MR HUGHES: We do not press that point.
FRENCH CJ: You do not press that - all right. Thank you.
MR HUGHES: Those are our submissions.
FRENCH CJ: Yes, thank you, Mr Hughes. Yes, now, Mr Hamill, I think you also require an extension of time.
MR HAMILL: We do, your Honour.
FRENCH CJ: Is that opposed?
MR ARNOTT: It is not opposed, your Honour.
FRENCH CJ: All right, you have that extension. Yes, Mr Hamill.
MR HAMILL: Your Honour, what has been agreed between the applicants in terms of what might generally be called the joinder issue is that Mr Dhanji, on behalf of the applicant Osman, will make the submissions in relation to the statutory construction point of section 29 of the Criminal Procedure Act and we, on behalf of Mr Aouad, and I think Mr Ramage on behalf of Mr El‑Zayet, adopt the submissions of Mr Dhanji. So that I will be simply referring to what might be the more general aspect of the joinder question which was ventilated in the Court of Criminal Appeal.
FRENCH CJ: This was the requirement of separate assessments of the credibility of Taleb, was it?
MR HAMILL: Yes.
FRENCH CJ: Yes.
MR HAMILL: We say in terms of the grant of special leave that this case raises in a particularly stark manner the problems and questions that arise when trying together multiple accused, particularly when they are charged with different offences or when the evidence against each accused is different. We submit that contrary to the respondent’s submissions the court below did not simply apply settled principles to the facts of the case.
We make that submission on two bases: first, that the question whether the principles are, indeed, settled and, second, as we have pointed out in the outline of the witness submissions, the court appeared to disregard one of its earlier authorities – that is the case of Pham [2004] NSWCCA 190 and we say erroneously applied this Court’s authority in the cases of Gilbert and Dupas.
We say that it is an appropriate case for the grant of special leave because a number of questions of general application are raised very distinctly by the facts of the case. On a more, I suppose, individual level, it is an appropriate case for the grant because a young man is serving a sentence of life imprisonment in circumstances where, we say, the decision below is attended with sufficient doubt to justify this Court’s intervention.
Further, your Honours, we have been unable to find a case where this Court has considered a case like this, that is to say a case involving the joinder of multiple accused persons charged with different offences, at least in circumstances where those offences are not temporarily or immediately sequential. There is an older case of Mackay but that was a case involving, in effect, sequential offences of rape.
What the Court has considered, and done so on a number of occasions, are two types of cases: one, where one offender is charged with multiple offences and the other where two or more offenders are charged with a single or joint offences. In the former case, that is one offender with multiple offences, the question of whether the cases should be tried together is determined by whether the evidence of one offence is admissible in proof of the other and that often involves considerations of questions of similar fact evidence or propensity evidence or tendency and coincidence evidence in the Evidence Act States.
There are many cases of that nature going back to De Jesus in 1986 and Sutton and, more recently, in Phillips and Stubley. In the latter type of case, that is, multiple offenders but joint offences, the starting point has been said to be there will be a joint trial subject to questions of prejudice, but again there seems to be an issue about whether the evidence admissible in one case is admissible in the other.
This Court considered that type of situation in Webb & Hay v The Queen (1994) 181 CLR 41 and it considered in the context of co‑conspirators in a case called Darby (1982) 148 CLR 668. In Darby the Court ultimately adopted a Canadian case so that the principle was established that separate trials would be required in circumstances where the evidence admissible against one accused was significantly different to the evidence admissible against the other. Your Honours will see that authority in the joint bundle and it is at page 54 of the joint bundle.
But, as I have said, what we have not been able to find is a case where separate offenders are joined up with unconnected offences and a number of important questions of general principle arise and if I can very quickly attempt to summarise what they are. The passage from Darby to which I have just made reference, a question arises as to whether that passage is a matter of general application or whether it simply applies to conspiracy cases.
In the bundle at 194, there is a case called Western Australia v Bowen (2006) 162 A Crim R 535 and at the foot of 194 of the bundle which is paragraph 59 the court indicates that:
There has been some disagreement among the courts of the State as to whether those observations in Darby apply only in relation to a charge of conspiracy . . . and not in relation to substantive offences.
His Honour goes on to say that in Victoria and South Australia and Western Australia it has been seen to be confined to conspiracy cases whereas in New South Wales it is said to apply more generally.
The second general question arises from a case called Middis which is an unrecorded decision of Justice Hunt, as he was then, in the Supreme Court of New South Wales on 27 March 1991. It was the Middis test which was applied in this case by the learned trial judge when she came to consider the question of whether to separate the trial on the application of the various accused.
The Middis test can be seen, again going to the joint bundle and to her Honour’s judgment at page 38 of the bundle - I will not read it to your Honours, but at paragraph 107, the learned trial judge set out in summary form what the Middis test required. There are three factors – “significantly weaker” case, “highly prejudicial” material and a “risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material”.
Now, there is a question whether or not that test is the correct test. When one looks at Middis, which is in the bundle starting at page 120, it can be seen that Middis is said to be an explanation of the Darby test and the Darby test, put simply, is if the evidence is significantly different, then there will be separate trials. But your Honours will see that in Middis there is an additional element, a refinement and, more recently, in the case of Pham, which is the case upon which we placed great reliance in the court below, there were question marks raised over two aspects of the Middis test.
In particular, there was a question raised as to whether or not the weakness of the case was a relevant consideration. Pham is, again, in the bundle and the particular passage where Justice Adams raises that question is at page 104 of the bundle where his Honour says at paragraph 40 that he is:
doubtful that the weakness of the applicant’s case as compared with that of the co‑accused . . . can be a relevant consideration.
His Honour also questions the use of the word “immeasurably”, if your Honours go back to the previous page, but that is probably not of such significance.
Justice Hodgson in a case called Madubuko [2011] NSWCCA 135 referred to what had been said in Pham and at paragraph 28 – I am sorry – over the page on 118 of the bundle, his Honour at paragraph 29 agreed with the views expressed by Justice Adams. There is a case not in the bundle where the same argument was raised before Justice Whealy in a case called Baladjam (No 49).
GUMMOW J: None of these cases bind us. What is the point of principle you want us to determine?
MR HAMILL: We basically submit that ultimately the Darby test is the correct test subject to matters of prejudice. In other words ‑ ‑ ‑
GUMMOW J: That is before Webb?
MR HAMILL: It is before Webb. But the starting point in Webb &Hay is joint offences by, strictly speaking, co‑offenders or co‑accused charged with the same offence. So that the starting point in such a case is that there would be a joint trial subject to those questions of prejudice, whereas we would submit in terms of the principle - we would invite your Honours, if granted leave, to enunciate that the principle is quite different in circumstances where separate offenders are charged with different offences, that the starting point is not the Webb & Hay starting point but rather, the contrary and that one comes back to is the evidence the same.
GUMMOW J: Does all this stem from the construction of section 29?
MR HAMILL: Well, we say that that, in a sense, stands alone and that the matters of which I am speaking really are the interests of justice as referred to in 29(3).
GUMMOW J: Yes.
MR HAMILL: So, yes, in that sense, yes, it does.
FRENCH CJ: Well, your contention, I suppose – I am sorry if I am oversimplifying it, but going back to your draft notice of appeal and focusing on (2)(ii), you are saying that it is relevant to the interests of justice and in this case the interests of justice could not be served by joint trials where these disparate bodies of evidence which, notwithstanding directions, could not be managed from the point of jury decision making.
MR HAMILL: That is correct.
FRENCH CJ: It was too much to expect the jury to, as it were, separate out the application of different bodies of evidence to different applicants and, in particular, in respect of the credibility of Taleb.
MR HAMILL: That is right, your Honour, but that is not to oversimplify the point. In fact what I have been trying to do to this point is to entice your Honours, or convince your Honours, that there are matters of great significance in which there are some ‑ ‑ ‑
FRENCH CJ: But, as difficult as it is, appreciating the difficulties that you throw up and that it is a complex and difficult trial, the question is whether that kind of consideration raises an issue of principle or just a particularly difficult question of trial management.
MR HAMILL: Yes.
FRENCH CJ: And that being a matter for the assessment of the judge who has to decide whether or not to apply section 29 and join.
MR HAMILL: We submit that what the Court of Criminal Appeal decided in Pham was correct and we have set it out in the written submissions and your Honour the Chief Justice has, effectively, just articulated it so I will not repeat it again, but here we have unquestionably four bodies of evidence being put before the jury, different bodies of evidence with respect to each accused and in respect of each accused, them being asked to form assessments in relation to one witness, and what Pham effectively says is that that is, in effect, an impossible task.
FRENCH CJ: Can you just take us to the passage in the Court of Criminal Appeal which responded to that concern?
MR HAMILL: No, I cannot because one of our arguments is that they did not.
FRENCH CJ: They did not address it?
MR HAMILL: No. They referred to the fact that we placed heavy reliance on Pham – and I am just trying to turn that up – but then Justice Johnson did not return to explain how it was that Pham was to be distinguished or not applied or whether it was right or wrong.
FRENCH CJ: So they go to paragraphs 248, 249, 250. They are looking at the directions and looking backwards at whether there has been a miscarriage.
MR HAMILL: Yes, thank you. Paragraph 248 is the direction that sets out the four different bodies of evidence, in effect.
FRENCH CJ: Yes.
MR HAMILL: Then the reference to Pham that I was struggling to find is at paragraph 201, application book 325, but that is the only reference to Pham in his Honour’s judgment. The way that his Honour, in effect, answers it is at 269 where his Honour refers to this Court’s decision in Dupas v The Queen and I think his Honour had earlier referred to Gilbert – no, his Honour then goes on to refer to Gilbert – and this is the body of authorities that say that juries are capable of following directions.
But we complain about that because what the Court also said was that assumption does not involve an assumption that they can be assumed to be free of prejudice. Your Honours, other than going through the evidence in detail, those are the submissions that we make in support of the grant of special leave.
FRENCH CJ: Are you really running a prejudice argument or just a leakage of consideration of one set of evidence into consideration and another set of evidence as an inevitable characteristic of decision making in this kind of case from a jury’s point of view?
MR HAMILL: We are assuredly running a prejudice argument as well because in the case of Mr Aouad, Mr Taleb gave evidence that Mr Aouad
was involved, in fact, in the shooting charged against Darwiche in counts 3 and 4 as well as disposal of the weapon in the charge which was count 5 against Mr Darwiche. In relation to 3 and 4, the matters we raised in terms of prejudice in Pham come together in that the jury is given firm direction not to engage in tendency reasoning, but there is some corroboration of the involvement of Darwiche by the victim who says that he identifies Darwiche’s brother, I think, and immediately complains but there is no corroboration in relation to Mr Aouad.
So that this evidence is out there being used as context or going to motive or relationships or some rather nebulous concept and it is being corroborated in the case of Darwiche and the jury is called upon to make a finding as to whether to accept it in relation to Darwiche and to make that finding beyond reasonable doubt where there is some corroboration and then in the case of my client – not to use it as tendency reasoning and to assess it on a different basis. That is a task, we say, a lay jury cannot perform in spite of the directions. Those are the respectful submissions.
FRENCH CJ: Thank you, Mr Hamill. Yes, Mr Dhanji.
MR DHANJI: Thank you, your Honour.
FRENCH CJ: You also need an extension of time, I think.
MR DHANJI: I also need an extension of time.
MR ARNOTT: No objection.
FRENCH CJ: Yes, all right. Your extension is granted.
MR DHANJI: Your Honours, the focus of these oral submissions is on section 29(2) of the Criminal Procedure Act and, in that regard, it is submitted on behalf of the applicant that there is an important issue raised by this and, indeed, these matters. In relation to section 29(3), we rely upon what is said by my learned friend on behalf of Mr Aouad and on behalf of Mr El‑Zayet.
Before I come to section 29, your Honours, if I could perhaps just provide some very brief factual background which will give some context to the factual matrix through which section 29(2) was to be approached. If I can take your Honours to the joint application book and page 30 which is part of her Honour’s summing‑up and if your Honours look on page 30, at about line 55, you will see her Honour’s direction to the jury in the following terms:
Proof of motive is not an element of any of the offences charged against the accused and in the case of the Crown makes against the accused Nasam El‑Zayet and Abbas Osman no motive is relied upon.
Similarly, her Honour directed the jury and this is at page 159 of the joint application book at line 59 - her Honour directed the jury in these terms:
None of the evidence about the history of the dispute between Adnan Darwiche and the Razzak family is relevant to your consideration of the case against Abbas Osman.
That is the applicant.
The Crown does not point to any motive on the part of Abbas Osman to involve himself in this enterprise.
So the case as against the applicant, Osman, was one that really very much arose, indeed within hours, of the offence itself. An application was brought for separate trials before the primary judge on behalf of the applicant. There was an appeal against her Honour’s decision, pursuant to section 5F of the Criminal Appeal Act which was then heard prior to the commencement of the trial. That appeal was unsuccessful. The trial proceeded and then the appeal from which this application is brought followed.
FRENCH CJ: Mr Dhanji, just to make sure that I have the basic distribution of counts correct ‑ ‑ ‑
MR DHANJI: Yes.
FRENCH CJ: As I understand it, there were seven counts on the joint indictment?
MR DHANJI: That is so.
FRENCH CJ: The first five counts only related to Mr Darwiche?
MR DHANJI: That is so.
FRENCH CJ: They were two counts of shooting and another with intent to murder, two counts of maliciously discharging a loaded firearm with intent to cause grievous bodily harm and one count of murder.
MR DHANJI: Yes.
FRENCH CJ: Those events occurred on 17 June 2001, 27 August 2003 and 29 August 2003?
MR DHANJI: Yes, your Honour.
FRENCH CJ: So the first lot was at Sir Joseph Banks Street, Bankstown and the second lot was the shooting at Yanderra Street, Condell Park and then the fifth count, the jury was unable to agree on a verdict. That was a homicide at the Lakemba mosque.
MR DHANJI: That is so.
FRENCH CJ: Then the sixth and seventh accounts which were laid against all applicants concern the shootings at Lawford Street and the killing of two persons there.
MR DHANJI: That is right, your Honour.
FRENCH CJ: All right.
MR DHANJI: So, having made clear, in her Honour’s directions, that those parts of the case were not relevant to ‑ ‑ ‑
GUMMOW J: Where are we going to, Mr Dhanji?
MR DHANJI: Section 29(2), your Honour.
GUMMOW J: We should get there. We do not have that much time, you know.
MR DHANJI: I will do that, your Honour.
GUMMOW J: What is the point that you want to agitate about 29(2)?
MR DHANJI: The point in relation to section 29(2), your Honour, is this – and section 29(2) is set out in the joint authorities at page 3. The manner in which the respondent has argued the case against us is that – and the respondent has only ever sought to put the joinder of the applicant’s offences with counts 1 to 5 in relation to Darwiche on the basis of section 29(2)(c).
The respondent in its submissions and this, in our submission, reflects the approach in the court below, picks up the applicant’s offence by describing it as the Lawford Street shooting. Now, in terms of describing that offence as the Lawford Street shooting, there were certainly two people killed, but that does not, in our submission – well, let me put it this way first. If that does describe the offence, count 6 is therefore ‑ ‑ ‑
GUMMOW J: Section 29(2) says the court may do something.
MR DHANJI: Yes.
GUMMOW J: Do you have some point about the constraints upon the power given the court by the word “may” in 29(2), having regard to (a), (b) and (c).
MR DHANJI: We do, your Honour.
GUMMOW J: Well, what is the constraint, apart from the particular facts in this case which would yield no principle?
MR DHANJI: Well, we say that the court, in circumstances where there is a joinder sought to be made, can only do so in the circumstances set out in subsection (1) or (2). In that regard, the word “may”, whilst on its face appearing to be permissive is, in our submission – or the provision as a whole and read in the context of the Act, we say, is in fact a provision which sets the limits upon which joinder may be made.
The reason we say that, your Honour, is twofold. Firstly, it comes from the history and construction of the Act. Your Honours will see that section 29 is included in a part of the Act, Chapter 2, Part 3 which deals with both indictable and summary procedure. The background to section 29 is, in fact, a provision of the Justices Act, 78A, and section 29 came about in its ‑ ‑ ‑
GUMMOW J: Well, Justice Bell referred to that.
MR DHANJI: Her Honour did. That is right. If I can take your Honours to that it is in our book of authorities at page 39. At the bottom of page 39, your Honours will see at paragraph 117, her Honour’s reference to the history that:
Section 78A was inserted into the Justices Act by the Justices (Amendment) Act 1987.
Her Honour sets out a portion of the second reading speech of the Attorney‑General on the introduction of that form of section 78A and it begins at the top of page 40. What the Attorney said was that:
The second purpose of the Bill is to insert a new section 78A of the Justices Act to enable summary matters involving one or more defendants, or related charges against one defendant, to be heard together without the consent of the parties when the charges arise out of –
particular circumstances, obviously as set out in section 78A.
GUMMOW J: Then the critical passage in her Honour’s reasons is at paragraph 120, is it not?
MR DHANJI: That is so because her Honour, in fact, there determines that, in fact, the factual matter before her was within section 29. We say that that finding was – and we say so respectfully – but in error because we say that section 29 ‑ ‑ ‑
GUMMOW J: This is special leave point.
MR DHANJI: Well, the special leave point is this, your Honour, but there are regularly in New South Wales trials of multiple accused on multiple counts and the limits of joinder in relation to those situations is something that occurs regularly and it is something that is, in our submission, restricted by the operation of section 29. But section 29, in our submission, has not received proper consideration in terms of its construction because when one comes to section 29 and seeks to apply it to this case, and we say that this point was not properly considered and, in fairness, I should say it was not put in these terms, but the nature of the point is such that it is, in our submission, such that it will almost inevitably ‑ ‑ ‑
GUMMOW J: But what is the point of construction?
MR DHANJI: I am sorry, your Honour. The point of construction ‑ ‑ ‑
GUMMOW J: They are general words and the general words are going to be applied to a multifarious set of circumstances and they are deliberately chosen, I imagine, as general words as the Parliament often does.
MR DHANJI: Your Honour, in our submission, the words are not intended to cast things in general terms such that one can pick up by way of a broad net ‑ ‑ ‑
GUMMOW J: There will always be a process of abstraction involved in applying the words “same or a similar”, will there not?
MR DHANJI: That is so but, your Honour, before one even gets to the words “same or a similar” in relation to paragraph (c), one has to enter through, in this case, the chapeau to paragraphs (a), (b) and (c) which is that:
A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed –
by two or more accused persons. We say that if, as the respondent contends, the offence against the applicant in count 6 was the Lawford Street shooting which involved him and various others as a joint count, then that is certainly an offence committed by two or more accused persons. The difficulty, however, is that if that is properly understood as an offence committed by two or more accused persons, then subsection (2) allows it to be joined with other offences committed by two or more accused persons. Counts 1 through to 5, of course, charged Mr Darwiche alone and consequently they were not offences alleged to have been committed by two or more accused persons.
So, in our submission, there is a fundamental difficulty if one takes the approach to the section that is sought to be taken by the respondent. The respondent’s alternative in order to defeat such an argument is not to treat offences alleged to have been committed by two or more persons as specific but rather cast more generally but the only way that that can make the section work is if the offence to be looked at is the offence as it applies to the particular accused, that is, one does not look at the joint offence that is count 6, but rather one looks at the offence of murder charged against the applicant.
When one comes to look at it in that way, one sees when one comes to paragraph (c) that where “offences” is first mentioned, that must mean – to pick an example – the offence against the applicant, Osman, of murder included, but not completely covered by, count 6 and, to pick another offence with which it was joined, count 1 against the accused, Darwiche. Now, if one understands those to be the offences which are sought to be joined, it is those offences which must form, or be part of, a series of offences of the same or a similar character.
Now, when one comes to that view of the provision there is, in our submission, difficultly indeed in viewing the offence charged against Mr Darwiche in June 2001 as being part of a series – and not just part of a series but, indeed, of the same or similar character of the particular offence as charged against the applicant, Osman, because Osman, as I have just taken your Honours to, is not suggested to have any motive in relation to the offence in count 6 or 7 and it was not suggested that the evidence in relation to those earlier counts against Darwiche was admissible as against Mr Osman.
So when one comes to how the Court of Criminal Appeal dealt with this – and if I can take your Honours to the joint application book at page 352 – you will see at paragraph 263 of his Honour’s reasons, his Honour refers to them as:
violent and dramatic event in the trial . . . The Crown was entitled to adduce evidence as to the background to this crime, and the alleged relationship between the co‑accused and (in particular) Khaled Taleb, to permit an assessment by the jury of the question – “How is it that these co‑accused came to act in this way, as the Crown alleges – how did it come to this?”
Well, in our submission, your Honours, there is a real difficulty in asking the question “how did it come to this?” as against the applicant, Osman, because as was made plain to the jury there was no motive suggested as against the applicant, Osman. What, in effect, occurs is, in our submission, a situation where if that is the way that it was to be approached by the jury, the only possible answer to that question is that the applicant, Osman, was very much in the applicant, Darwiche’s camp and that is, if not involved in those earlier matters, was certainly aware of them and, indeed, in some sense approved of them and that obviously enough is straying into – rather than the simply technical argument with respect of 29(2) – the prejudice.
FRENCH CJ: Getting to the prejudice section.
MR DHANJI: But one can see the relationship between the mistaking of these offences as a series of the same or similar character and the potential for prejudice. But we, of course, in relation to this argument, do not need to make out the prejudice part. We do rely on prejudice but we do not need to make it out. We say that on a proper construction the section did not permit the joinder.
FRENCH CJ: Now, to what extent does that turn on the proposition that this was not a series of offences, series of offences of the same or a similar character, I suppose.
MR DHANJI: Yes. It is approached in two ways. The first way is that if the respondent as they do want to call them a series of offences of the same or similar character simply by calling it the Lawford Street shooting, well, that is helpful to them with respect to paragraph (c) but their problem is that do not pass through the chapeau to paragraph (c).
GUMMOW J: Now, what do you say about 3.9 and 3.10 in your opponent’s argument – “You’ll be the driver so the Razzaks won’t recognise you”, et cetera.
MR DHANJI: Well, in a sense that is helpful because it shows the disconnect, in our submission.
GUMMOW J: The applicant asked Darwiche if he was sure that the Razzaks would be there, et cetera.
MR DHANJI: Yes, your Honour.
GUMMOW J: At 3.10 – “These events would be incomprehensible without knowing who the Razzaks were and why they were to be killed”.
MR DHANJI: Well, if I can pick up that aspect, your Honour ‑ ‑ ‑
GUMMOW J: “It would have been incomprehensible that the applicant would so readily agree”, et cetera, et cetera.
MR DHANJI: The difficulty that it would be incomprehensible that the applicant would so readily agree is that the Crown went to the jury on the basis that the earlier matters were not admissible against the applicant and the applicant had no motive.
GUMMOW J: All I am putting to you is that there seems to be enough on the other side of the scale to suggest this is not necessarily a suitable vehicle to embark upon the construction you want to place upon section 29.
MR DHANJI: Your Honour, in our submission, this is in a way an ideal vehicle and I make the submission, in a sense, jointly because it raises issues in relation to Mr Aouad where there are aspects of the evidence which Mr Hamill has referred to which were admitted as against Mr Darwiche but were seriously prejudicial as against his client. In relation to the applicant, there is a different aspect and that is there is, in a sense, a clean break.
The submission has to be understood in this context. The case as against Osman proceeded on the basis that there was no contest that there had been this shooting and there was no contest that there had been two people killed. So inevitably there was necessarily a question that could not be resolved as to why he became involved in such a serious event because no motive was asserted as against him. But somebody had been recruited. The only issue was whether it was the applicant, Osman.
So that question was to be answered and there was evidence, clearly enough, on which the Crown relied that it was not the evidence of events preceding. So it did not avail the Crown or the respondent in this Court to resolve that question by pointing to the need to understand some history. Clearly, someone had a very serious motive for shooting at the premises and ultimately resulting in the two deaths. That could not be in question. I see the red light is on.
FRENCH CJ: Yes, thank you, Mr Dhanji. Yes, Mr Ramage.
MR RAMAGE: Your Honours, I adopt what my learned friends have said before me. I will not seek to re‑ventilate those issues. Our submissions, which were the first in line, were perhaps a bit more - less sophisticated than those. I would like though, however, and it is writ in response to a question Justice Gummow asked a few minutes ago, to point out in respect of my client, this applicant, there was no other evidence except that of the person Khaled Taleb called against him of any nature whatsoever. But despite that, of course, he had to sit through a joint trial where other matters which one can describe as a history of violent relations, cannabis sales and access to firearms by Mr Darwiche were all admitted and described as, in those cases, putting the evidence of Khaled Taleb into context and providing evidence of motive.
Now, like the last applicant, there was no suggestion that there was any evidence of motive relied upon against my client. However, of course, the jury had to make an assessment of Khaled Taleb’s evidence in respect of all the other counts. To convict as they did in respect of the other counts they had to be satisfied beyond reasonable doubt as to his evidence and they looked undoubtedly to supporting evidence in respect of those other counts and a whole series of other so‑called context matters which involved shooting at Sir Joseph Banks Road, shootings at the Sarkis timber yard, at Riley Street, drive‑by shootings at Boundary Road and Darling Street and the like, none of which was suggested in any way to be relevant to this particular applicant.
He was not suggested to be part of any gang. He was not suggested to be an associate of Mr Darwiche. He was not suggested in any way to be involved in anything at all, except on that particular night he was alleged to have been present in a house – his house – and agreed to go with the others and that was the extent of the evidence against him. That is the admissible evidence.
We say there is no prospect that the interests of justice could have been served in this case by joining this accused if the Crown insisted, as they did so, in putting all the other offences involving Mr Darwiche and all the acts of violence alleged against him and all the other items called context evidence in and then inviting the jury, as the jury was undoubtedly invited, to look for support from other evidence.
I will come to the reference later to her Honour’s invitation to the jury that they could look to support from indemnified witnesses, which was a general invitation in the whole trial, not an invitation to look for a support as to the only two matters this applicant was charged with, that is counts 6 and 7, despite the fact that the jury was specifically directed somewhere else that they could not use what these indemnified witnesses, of which you have heard my learned friend, Mr Hughes, describe their situation, they could not use any of that against the applicant.
But, of course, in the evidence given by Hannouf, the two Hannoufs, they allegedly overheard a conversation asserting that something was going to happen, there was going to be a shooting and it was going to be at Erdt’s house, which is the nickname my client was accepted to bear. So that evidence could never have been admitted against my client, but an invitation was made in the context of the trial to look for supporting evidence of the person Darwiche from these indemnified witnesses.
So we say that so long as the Crown persisted in this approach that they desire to have all this hugely prejudicial material, great volumes of evidence, totally irrelevant to this accused presented in a joint trial, this applicant could not and did not receive a fair trial. He is to be distinguished, perhaps in part, and I do not want to labour this point, but as I say he is not a friend of Mr Darwiche. He was not related to him. He was not part of any so‑called association or disassociation between the Darwiches and the Razzaks. He was not like the applicant, Aouad, involved in some other instance, it was alleged, in the course of Khaled Taleb’s evidence. He was not, as was alleged in the case of Mr Osman, said to be – and they relied on some alleged evidence against that applicant as to his awareness of the feud.
There was other evidence given by Wahib Hannouf, referred to in the applicant, Osman’s, submissions at 3.23, summarising to the Court of Criminal Appeal that Osman had told him that he was worried about what was happening and he was scared that they were going to knock him. So in his case, I mean I do not cut across my learned friend’s submissions as to the joinder, I am just trying to distinguish between the case involving this applicant where there was absolutely nothing, but nevertheless all the other evidence went in against him.
It did not go in against him. All the other evidence went in against Darwiche and the jury was supposed to, in some arcane method, ignore all that, not apply all that and yet look to that evidence as to whether they could be satisfied as to the reliability and credibility of the man, Khaled Taleb. It defies reason to suggest that a jury could appropriately have decided that yes, in respect of those other counts, yes, he was guilty and they were satisfied beyond reasonable doubt on his evidence, but for some reason that they could then bolt through a hoop and then say well we will ignore all that evidence, ignore all that supporting evidence when we come to assessing in respect to these ‑ ‑ ‑
FRENCH CJ: Again, this all reduces to the proposition that we heard earlier, I think, that the nature of the case was such that the decision‑making process, which the jury had to undertake, was unmanageable in terms of compliance with the directions that they were given.
MR RAMAGE: Yes, your Honour. We perhaps part company with my co‑applicants in that we submit that he could not have got a fair trial while the evidence was given in respect of all the other matters involving Darwiche. If the Crown had desired to proceed against him, against Darwiche in a joint trial, that they should have called very limited evidence which was necessary to establish the bare background of the feud which might provide a motive for Darwiche. Of course, we had no knowledge of that and the judge could have quickly directed “Well, that you will ignore” because it has ‑ ‑ ‑
FRENCH CJ: In a sense what you are doing is sharpening the prejudice argument in respect of your client because of his particular situation.
MR RAMAGE: Yes. I am seeking to do that because I am really responding to what Justice Gummow said in terms of there was some support that perhaps made it not such a difficult task for the jury. I do not want rephrase what your Honour said, but I wanted to point out just how difficult it was for this accused, this applicant, faced sitting as he did in a joint trial where it was all said – and in part to respond to what has been the Crown argument, the respondent’s argument that it was inevitable that the material regarding the feud would have come out if there had been some separate trial. In our respectful submission, no, and it could have been handled very differently, if there had been a trial restricted only to counts 6 and 7, including Darwiche and those counts.
GUMMOW J: Was the meeting on the evening of 13 October at which the weapons, including the rocket launcher were inspected, was that your client’s apartment?
MR RAMAGE: That is certainly his house, your Honour. That is the evidence of Khaled Taleb that gives that. There is no suggestion and no admissible evidence anywhere else that they did meet there, that they left from there. That was all entirely the evidence of Khaled Taleb. I will not labour the point but it was very, very difficult for the jury to make assessments of Khaled Taleb and then in respect of the other counts find him satisfied beyond reasonable doubt and then convict on the other counts.
Now, in respect of those, of course, the first count there was an acquittal, but the jury convicted on the second count which was the alternative. So they must have accepted Khaled Taleb that the accused, in that case, Mr Darwiche, was the shooter. But they must have disputed or been dissatisfied as, indeed, on the evidence and the nature of the way the shots were fired when standing over him with his leg exposed that they must have been unsatisfied as to the intent involved.
Likewise, the fifth count was quite confused and a number of motives have been suggested during the thing, but one cannot assume, of course, that the jury spent a great deal of time worrying about those. I mean the fact that the jury – one can assume that the last count – the fact that the jury could not agree that one can reasonably assume that 10 persons, at least two persons did not agree. But as to the balance of the counts one cannot assume for the length of time the jury deliberated that they were particularly deliberating on any particular count, including the last of those two.
Your Honours, I will not take up again the question of 29(2), but we say that it is very difficult to see how her Honour could have ever in an application of Middis or any of those cases such as that, ever come to a conclusion that no case and particularly this applicant’s case was less strong or less weak than any of the others. That seems to be a determination which seems to have been accepted by the Court of Criminal Appeal on the basis that the presiding judge had made it. How she could possibly have made that in the circumstances of this case and that is what I have tried to stress the prejudice my client faced is, we say, surprising in the least.
Your Honour, the Crown has made no answer to my learned friend’s submissions but I anticipate that because the answers will come in respect of some of the other applicants that I will not seek to go through this again. But it is simpler if I simply adopt those submissions made by my learned friend.
Ground 2, your Honour, I will take the Court to set out in the joint application book. It concerns the invitation to her Honour to the jury, in effect, that they could look to the evidence of the indemnified witnesses as to whether there was support for or independent support for Khaled Taleb. Of course, they could not in respect of this accused, this applicant, because there was no such evidence admissible against him from the indemnified witnesses and that was her direction to - invitation appears, one can see in the directions, are in her summing‑up at 23 and her summing‑up, 28, in the joint book where her Honour said, commencing probably at 31:
There is then a need for you to exercise care in assessing the evidence of each of these three witnesses.
That is the Hannoufs and Khaled Taleb –
You should look at the evidence of each of them and consider whether it appeared to you to be credible, whether the evidence was consistent with other accounts that the witness has given. Plainly, you would look for independent support for the evidence given by each of these indemnified witnesses.
She went on and it appears as we looked at an earlier trial, this was at an invitation by the Crown in the other trial involving this accused and one more. But I will not go into that. That is the one where the appeal was upheld –
It is open to you to regard the evidence of one of the indemnified witnesses as providing some support for acceptance of the evidence of another indemnified witness. However, your own common sense would suggest that you approach that exercise with caution. Wahib and Hassaim Hannouf are brothers. They were in custody together at the time they made their statements. To the extent that their accounts seem to coincide you would assess whether they had colluded in coming forward with the account that they gave to the police in order to suit their own purposes.
So it was accepted that there was a real question in respect of those. But the real vice in the direction is the invitation to look to the Hannoufs as providing independent support to Khaled Taleb. What was it supposed to be in respect to this applicant and how was the jury supposed to assess it? Were they supposed to say, well, without direction we can only look at it in respect of independent support in respect of the commission of the offence involving this applicant, El‑Zayet, involving the last counts 6 and 7. We cannot look at it in respect to the others or we look at it generally, knowing that it was not admissible against this applicant and could not have been admissible against this applicant.
Now, the court rejected the argument as set out at 432. The Court of Criminal Appeal rejected the propositions we would seek to make out of hand, based on the New South Wales Court of Criminal Appeal decision in Kanaan, as determined by this Court. In the associated appeal they said that – sorry, in the associated appeal which was dealt with at the same time as this Court they determined that the decision of the New South Wales Court of Criminal Appeal was correctly decided and applied rule 4 because it had not been specifically raised at the trial.
We would say in respect of that, of course, so far as Kanaan was a binding decision in this State, it was hardly open to the applicant to raise it before the trial judge and tell her that she could not give such a direction, though in truth hindsight would say it should have been drawn to the judge’s attention that if she did desire to give such a direction or when she gave such a direction it should have been limited, if it was appropriate to give it at all. The thrust of what we ‑ ‑ ‑
FRENCH CJ: I mean it was obviously part of the general direction she was giving of a preliminary character, but you say it spilt over in a particular way, potentially into your client’s situation?
MR RAMAGE: That is one thing. There was nothing said, “Look do not use it against El‑Zayet because there is no supporting evidence and you cannot use anything the indemnified witnesses said there”. Our submission is further though and this raises an important issue, we would say, of general principle. We submit that Kanaan is wrongly decided and the arguments we make in respect of those are set out in our submissions, your Honour.
We say that this Court, the Court in Kanaan, where it sought, at paragraph 220 and that is set out in the authorities, to draw a distinction between on one hand directing a jury that one witness could corroborate another - that was one accomplice witness - which is not permitted and is an error, and, on the other hand directing a jury that they should look to see to what extent there is any independent support for the evidence of the witness. The court said that a direction in the latter form was permissible in that it did not invite the jury to equate independent support with corroboration. Now, in our respectful submission, that was held. It is made at paragraph 39, page 437 of the book.
That was held to have been correct by the New South Wales Court of Criminal Appeal in the present matter. We submit the reasoning is erroneous. If a jury cannot be told that such evidence is corroborative because of the possibility of joint fabrication then, for that very reason –and we are talking about the possibility of joint fabrication possibly between Taleb and the two Hannoufs, certainly between the two Hannoufs – how can it logically be told that such evidence may still provide independent support? In our respectful submission, and we submit it is an important matter that this Court should consider, if there exists the possibility of joint fabrication, accepted in the instant case ‑ ‑ ‑
FRENCH CJ: And the trial judge alerted the jury to that possibility, at least in respect of the Hannoufs?
MR RAMAGE: Yes, she had, but she had not.
FRENCH CJ: She enjoined them to use caution.
MR RAMAGE: Yes, she did. But we say that in that situation you could not sensibly look to independent support, because it was not independent support. They would have to consider whether the support – whether you could possibly – they would have to decide, in effect, that they were
satisfied beyond reasonable doubt that despite possibly putting their heads together they were satisfied it was independent.
We say further that in the application of Pollitt - what was said in this Court in Pollittv The Queen (1992) 174 CLR 588 at 600, in the joint judgment of Justices Dawson and Gaudron, their Honours had said:
Equally, there may be cases not involving accomplices where, because of the possibility of joint fabrication, it is necessary to direct a jury to look elsewhere for corroboration.
Insofar as it is said that – well I will go to our submission at 42, which is at 437 - if this Court in Pollitt said that a corroboration direction could not be given where the possibility of joint fabrication existed, then the court in Kanaan has effectively transgressed that Pollitt prohibition by endorsing a direction about independent support in circumstances where that support, by definition, must include the concept of corroboration. In our respectful submission, corroboration is a form of or sub‑category of an example of the sub‑specie of the concept of independent support.
FRENCH CJ: Mr Ramage, your time is up.
MR RAMAGE: Sorry, I did not see the red light. Thank you, your Honours.
FRENCH CJ: Thank you. The Court will adjourn briefly to consider what course it should take.
AT 12.47 PM SHORT ADJOURNMENT
UPON RESUMING AT 12.54 PM:
FRENCH CJ: We will not need to trouble you, Mr Arnott.
Each of the applicants was tried together in 2006 on a joint indictment containing seven counts. The first five counts related to the applicant, Darwiche, only. They included two counts of shooting at another with intent to murder, two counts of maliciously discharging a loaded firearm with intent to cause grievous bodily harm to another and one count of murder.
The events giving rise to the first five counts occurred on 17 June 2001, 27 August 2003 and 29 August 2003. The first two counts related to a shooting in an apartment block at Sir Joseph Banks Street, Bankstown. The applicant, Darwiche, was convicted of the second count only. The third and fourth counts, the fourth framed as an alternative to the third, concerned a shooting at Yanderra Street, Condell Park. Darwiche was convicted on the third count. No verdict was taken on the fourth. The fifth count concerned a killing at the Lakemba mosque. The jury was not able to agree on a verdict on that matter. The sixth and seventh counts laid against all applicants concerned the killing of two persons at Lawford Street, Greenacre in October 2003. All applicants were convicted of those offences.
In April 2011, the Court of Appeal dismissed appeals against conviction lodged by each of the applicants. The applicants seek special leave to appeal on a number of grounds, varying as between the applicants, which involve the contentions that:
1.The trial judge was wrong to order that the applicants, other than Darwiche, be tried jointly with Darwiche because –
(a)the joint trial with Darwiche gave rise to a miscarriage of justice; and
(b)section 29 of the Criminal Procedure Act 1986 (NSW) does not enable such a joint trial.
2.The trial judge misdirected the jury by telling them that the evidence of one indemnified witness could provide support for the evidence of another.
3.The nature of the trial was such that the jury was required to make separate assessments of the credibility of a key witness based on disparate bodies of evidence admissible as against different applicants.
4.That payment and provision of other benefits to certain prosecution witnesses constituted an abuse of process which should have been considered by the Court of Criminal Appeal, notwithstanding that no application for a stay was made at trial.
None of the contentions raised by the applicants, in our opinion, warrant a grant of special leave. The offences were connected by disputation between members of two family groups. The criteria in section 29 of the Criminal Procedure Act relating to the joint trial of multiple offences referred to the same set of circumstances and a series of offences of the same or a similar character as conditions enlivening the discretion of the court to order a joint trial. The judgment which informs the discretion is an evaluative one. The course taken by the trial judge, in our opinion, was not precluded by the opening words of section 29. The evaluation and exercise of her discretion by the primary judge does not give rise to a question of principle. None of the other grounds, in our opinion, is attended with sufficient prospects of success to warrant the grant of special leave. Special leave will be refused in each case.
The Court will now adjourn until 1.40.
AT 12.57 THE MATTERS WERE CONCLUDED
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