Regina v Abdul Darwiche

[2006] NSWSC 848

CITATION:	Regina v Abdul Darwiche [2006] NSWSC 848
HEARING DATE(S):	20/2/06, 21/2/06, 22/2/06, 27/2/06, 28/2/06, 1/3/06, 2/3/06, 3/3/06, 6/3/06, 7/3/06, 8/3/06
JUDGMENT DATE :	8 March 2006
JUDGMENT OF:	Bell J at 1
DECISION:	Not guilty of shooting with intent to murder; Not guilty of alternative count of maliciously discharging a loaded firearm with intent to do grievous bodily harm
CATCHWORDS:	Prasad direction - judge alone trial
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995
CASES CITED:	Prasad v R (1979) 23 SASR 161
PARTIES:	Regina Abdul Darwiche (Accused)
FILE NUMBER(S):	SC 2005/1253
COUNSEL:	John Pickering (Crown) John Doris (Accused)
SOLICITORS:	S Kavanagh (Crown) Yazbek Lawyers (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

BELL J

WEDNESDAY: 8 MARCH 2006

2005/1253 Regina v Abdul DARWICHE

JUDGMENT - on Prasad direction (see p582 of transcript) -

1 HER HONOUR: On 20 February 2006, the accused was arraigned on an indictment that charged him that on 27 August 2003 at Condell Park he did shoot at Farouk Razzak with intent to murder the said Farouk Razzak. In the alternative, he was charged that on the same day and at the same place he did maliciously discharge a loaded firearm with intent to do grievous bodily harm to Farouk Razzak. He pleaded “not guilty” to each count.

2 On 17 February 2000 the accused elected in accordance with provisions of s 132 of the Criminal Procedure Act 1986 to be tried by judge alone. He was represented by Mr Doris of counsel and I was satisfied that before making the election he had sought and received advice from Mr Doris in relation to it. The Director of Public Prosecutions consented to the election made by the accused and accordingly the trial has proceeded before me as a judge sitting alone without a jury.

3 Prior to the present trial, the accused was arraigned on the same indictment and a trial commenced with a jury. Senior Constable Gane gave evidence of the crime scene investigation and some short evidence was given by another scientific officer, David Boyd, concerning the preparation of the photogrammetry plan. Following the crime scene evidence, Farouk Razzak commenced his evidence in chief. On the second day of the trial I discharged the jury as the result of some material volunteered by Mr Razzak, which may have prejudiced the fair trial of the accused. The present trial commenced on the following Monday. The exhibits that had been tendered at the earlier trial were tendered and the transcript of the evidence given at the earlier trial was tendered by consent as evidence in this trial.

4 At the close of the Crown case Mr Doris invited me to remind myself of the observations of King CJ in Prasad v R (1979) 23 SASR 161. His Honour there said this,

It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more.

5 In Mr Doris' submission, the evidence is insufficient to sustain a conviction on either count and without hearing any evidence in a case that the accused may care to bring and without the benefit of closing submissions, I would return a verdict of “not guilty” on each count. In the way Mr Doris’ application was developed, I had the benefit of detailed submissions on the evidence from him and from the Crown Prosecutor.

6 The offence charged in count one is provided by s 29 of the Crimes Act 1900, it is necessary for the Crown to prove beyond reasonable doubt the following elements:

(i) the accused shot at Farouk Razzak; and
(ii) at the time of so doing, he intended to murder.

7 It is not sufficient for the Crown to establish that the accused discharged a loaded firearm in the vicinity of Mr Razzak. To "shoot at" means to shoot to hit. The intention that the Crown must establish is an intention to kill.

8 The alternative charge is provided by section 33A(1) of the Crimes Act. The ingredients of this offence are that the accused:

(i) acted with malice;
(ii) shot at Farouk Razzak;
(iii) at the time of so doing it was his intention thereby to do grievous bodily harm.

9 In the way the trial has been conducted, I understand there to be no issue that if Farouk Razzak's evidence of being present on the lighted front verandah of premises at 106 Yanderra Street at the time when two persons discharged automatic (or semi-automatic weapons) in his direction is accepted, the inference to be drawn is that each shooter was possessed of an intention thereby to kill him.

10 At about 9.30 pm on Wednesday 27 August 2003 55 rounds were fired from two automatic or semi-automatic assault style rifles in the direction of premises at 106 Yanderra Street and its surrounds.

11 Senior Constable Gane of the crime scene section arrived at the scene at about 10.35 pm. The first police officers attended some time shortly before 10.00 pm that evening.

12 Yanderra Street runs from east to west. No. 106 is on the northern side of the street in the block between Fourth Avenue, which is to the west and Fifth Avenue, which is to the east. Number 108 is to the immediate west of No. 106, on the corner of Fourth Avenue and Yanderra Street.

13 The premises at No. 106 comprise a three bedroom, aluminium clad dwelling. It has an open, tiled, front verandah facing south. Two steps lead from the front verandah to a paved front yard and driveway on the western side of the lot. Immediately, in front of the verandah there is a raised garden bed containing bushes extending for most of the length of the verandah that appear to have been well in excess of one metre in height at the time of this incident. They are clearly depicted in photograph No. 121 (Ex A).

14 The photographs taken on the night show two exterior lights on the verandah. The evidence is that these were operated by sensors.

15 At the time the police attended the scene and secured it, a blue Ford Laser was parked facing east on the nature strip immediately in front of No. 106, a white Mazda facing west was parked immediately adjacent to the northern kerb outside the premises at No. 106 but to the east of the Laser. The bonnets of each vehicle were in line with one another. The location of the vehicles is depicted in the photogrammetry plan and in the photograph Ex K.

16 On the grass nature strip outside No. 108 were located 14 x 7.62 calibre fired cartridge cases. On the roadway outside No. 108 were located 40 x 7.62 calibre fired cartridge cases. The location of the fired cartridge cases is recorded in a number of photographs taken by Senior Constable Gane and in the photogrammetry plan.

17 One fired cartridge case was found on the roadway to the east of the other fired cartridge cases at a position indicated in the photographs by a marker labelled A.

18 A wooden pole with street light attached to it was located at the edge of the grass nature strip on the northeastern corner of Yanderra Street and Fourth Avenue.

19 The fifty-five fired cartridge cases were fired from two automatic or semi-automatic weapons. It is likely that they were SKS rifles. I am satisfied that each weapon was fired from a position on the nature strip within the area marked by Detective Snow on the copy of a photogrammetry plan, Ex 1.

20 The white Mazda had collision damage to the front near side. It had suffered extensive bullet damage consistent with 11 rounds being fired at it from a weapon chambered to fire .40 calibre bullets, which is likely to have been a self-loading pistol. The blue Ford Laser suffered no bullet or other damage. I do not conclude from this circumstance that the Laser was not parked in the position indicated in the photogrammetry plan at the time of the shooting.

21 There were two distinct episodes of shooting in Yanderra Street that took place within a short interval at about 9.30 pm on 27 August 2003. The likelihood is that a person fired a series of shots at the white Mazda in order to attract the attention of the occupants of the premises at No. 106. When one or more persons came out of the premises on to the front verandah, two persons standing on the nature strip on the northern side of Yanderra Street near the intersection with Fourth Avenue opened fire with assault rifles, which were aimed in the direction of the verandah of No. 106.

22 SKS rifles have a significant recoil when fired and are likely to be inaccurate when discharged by persons who lack training in their use. Whoever fired these two weapons on this occasion did not appear to have been trained in their use. The pattern of firing was erratic. Shots travelled wide of No. 106 on the northern side of Yanderra Street, with bullets passing through the exterior wall of the premises as far as No. 96, which is on the eastern corner of Yanderra Street and Fifth Avenue.

23 I propose to refer to some of the evidence in chief given by Farouk Razzak before turning to the criticisms of it made by Mr Doris.

24 Farouk Razzak learned in 2001 of difficulties that his nephew, Bilal, was having with some members of the Darwiche family. He was called upon to try to solve the problem by his cousin, Ali Abdul Razzak. Farouk Razzak understood that the problem had started between the youngest member of the Darwiche family, Mohamad Ali Darwiche, and Bilal Razzak. There had been an escalation of the difficulties between the two families after this time.

25 A meeting was held at the home of Ali Abdul Razzak in 2001 in an endeavour to sort out the problem. At this meeting, which was attended by members of the two families, Farouk Razzak said that the accused made a threat in terms, "My brother said you have to give us Bilal in two hours or leave the country or fucking kill all Razzaks straight now" (T 149.38-40). After this the accused and the other members of the Darwiche family walked out of the meeting.

26 Farouk Razzak had seen the accused and his brothers regularly prior to the meeting at Ali Abdul Razzak’s home. He had come to know him when Ali Abdul Razzak became engaged to Khadjie Darwiche, who is the sister of the accused. This was around 1990. Farouk Razzak attended the accused's wedding. He attended the weddings of Adnan and Michael Darwiche. He attended other family functions at which the Darwiche brothers were present, including the funeral of Farouk Darwiche.

27 I am satisfied that Farouk Razzak was familiar with the appearance of each of Farouk Darwiche's sons, and that he was able to recognise the accused and each of his brothers.

28 At about 9 or 9.30pm on the evening of 27 August 2003, Farouk Razzak said that he had been at his son, Samear's, home at 106 Yanderra Street. Present at that time were his wife, Nahla, his teenage son, Mohamad and his daughter, Jomana. Jomana and Mohamad each suffer from a disability that affects their mobility.

29 Mr Razzak said that he, his wife and Mohammed were in the TV room when he heard six sounds that he described as "bang, bang, bang". He got up and walked down the hall to the front door. He opened the front door and looked out. He then opened the screen door and walked outside. He said that he saw, "like some shadow go towards the right, under the dark, the trees". (T 154. 33-34 16/2/06). He walked about three metres to the western end of the verandah, "suddenly I see two different persons. Since I saw them I yell to them, I swear to them, 'Hey boy, what you fucking'-- then the fire come out of the gun, they not let me to finish my words". (T 154-155 16/2/06). The two persons were on the road surface of Yanderra Street, under the streetlight in front No. 108. Mr Razzak marked the position of the two shooters on a copy of the photogrammetry plan, Ex 4.

30 Mr Razzak said that as soon as he saw the two men he recognised them as Abdul and Eddie Darwiche. Eddie Darwiche is the name by which Adnan Darwiche is known. They immediately started shooting at him and he saw fire coming from the gun. He went on to describe what happened in this way:

…and I turn back and I walk just normal. I didn't run. I walk normal until I get the screen door, the screen door lock by itself. I put the handle and the bullets, I think it must miss my eyes maybe one millimetre and, my head, my everywhere They stop me. I think second on the door, I can't move. The handle come off in my hand, and I feel burn. (T 64. 45-51)

31 Mr Razzak was not able to say what kind of guns the men were holding. He said that he had opened the front door and walked in and at this point the shooting stopped completely. He had seen his wife in a distressed condition. He had gone to check on Jomana, who was in Bedroom 2. Next he went back out on to the verandah and he saw a white car, which he thought was a Honda, with its lights off, driving in an easterly direction down Yanderra Street. His wife was screaming; she had not suffered any injury. He went back inside and told his wife, "Listen, that pigs, Abdul and Eddie, they shot me".

32 Mr Razzak said that he had contacted other members of his family after the shooting: his sons, Samear and Ziad and, his cousin, Ali Abdul Razzak. All three arrived together at the premises at 106 Yanderra Street. I infer on that on Farouk Razzak’s account it took at least some minutes for these three persons to arrive at the premises; a circumstance that assumes significance when taking into account the evidence of the neighbours.

33 Mr Doris submitted that I would not be satisfied that Farouk Razzak was present at No. 106 at the time of the shooting. I record my satisfaction beyond reasonable doubt that he was. In addition to Farouk Razzak’s evidence and the evidence of his wife and Jomana, I consider that Jennifer Pine’s evidence was strongly supportive of such a finding. The evidence of Constable Liouthakis as to Mr Razzak’s appearance at the time he spoke to him on the evening of the shooting provides further support for an acceptance of his account.

34 It remains that the Crown case is wholly dependent on an acceptance of the reliability of the evidence of Farouk Razzak that he recognised the accused as one of the shooters.

35 It is necessary to bear in mind the special need for caution before accepting identification evidence and the reasons for that caution, both generally and in the circumstances of the case: s 116 of the Evidence Act1995. This caution is necessary even in a case in which the Court is satisfied that the witness has given completely honest evidence of identification. The directions that the Evidence Act requires to be given attach to the reliability of evidence of this character and not to the honesty with which it was given.

36 I am mindful that completely honest witnesses have been mistaken in their evidence of identification, and that it has been the experience of the criminal courts, in this jurisdiction and elsewhere, that identification evidence, no matter how honestly given, has proved to be unreliable. There are notorious cases in which honest evidence of identification has been demonstrated to have been wrong after the conviction of innocent persons. Errors in identification may occur even when, as here, the witness has previously known the accused. The reliability of evidence of identification, including evidence of recognition of a person known to the witness, plainly depends upon the circumstances in which the observation was made, which include the length of time over which the person was observed, the lighting conditions and the distance between the witness and the person identified.

37 In this case Mr Doris pointed to a number of features of the evidence of Farouk Razzak as adversely affecting its reliability. His opportunity to observe the two persons holding assault rifles pointed at him at shoulder height was a fleeting one. As soon as he saw them and shouted at them their immediate response was to open fire. The incident occurred at night, the lighting was that provided by the street lamp on the corner of Yanderra Street and Fourth Avenue. The opportunity for observation before Mr Razzak saw the muzzle fire was, one would think, of the order of a second or less.

38 I am satisfied that Mr Razzak's recollection that the two shooters were standing on the roadway of Yanderra Street in the position that he marked on Ex 4 is inaccurate.

39 Detective Snow, who is an expert in ballistics, marked the probable location of the two shooters by cross-hatching on Ex 1. This described a range of more than a metre over which the two shooters were likely to have been located at the time of the shooting. The pattern of fired cartridge cases on the nature strip and the road surface was consistent either with the shooters moving a short distance over the area marked by Detective Snow, or firing from a stationary position. Rifles of the type chambered to fire 7.62 cartridges eject to the right over a distance of three to five metres. This evidence, when taken with the evidence of the location of the fired cartridge cases, serves to demonstrate why Detective Snow's evidence is to be preferred to Mr Razzak's on the question of the location of the shooters.

40 Mr Razzak’s ability to observe the two shooters, assuming they were standing in the area indicated on Ex 1, was to my mind somewhat less advantageous than it would have been if Mr Razzak’s recall were correct and they were standing on the roadway, somewhat closer to No. 106

41 The Crown Prosecutor pointed to a number of aspects of the physical evidence that were consistent with Mr Razzak's account. As the Crown observes, Mr Razzak said that he had been shot at by two persons holding assault rifles to their shoulders. The evidence establishes that two such weapons were fired in the direction of the front verandah. While the position that Mr Razzak identified as the location of the shooters does not accord precisely with the location that I am satisfied they occupied, his evidence was nonetheless broadly consistent with the evidence of Jennifer Pine. She observed a figure, consistent in appearance with being Farouk Razzak, standing on the verandah of No. 106, at the point closest to the boundary with her property, calling out excitedly in the general direction of the front of her property.

42 The consistency of Farouk Razzak's account of the shooting with the physical evidence does not assist in determining whether I may be satisfied beyond reasonable doubt of the reliability of his identification of this accused as one of the shooters.

43 In Mr Doris' submission there are a number of features of the evidence of Mr Razzak that would lead me not to act on his evidence of identification in the absence of independent evidence tending to support it. The first of these is the assertion that Farouk Razzak has given a number of inconsistent versions of the events. Mr Doris submitted there were five, or perhaps on one view, six, inconsistent versions. Certain of the suggested inconsistencies, to my mind, were not matters of moment. However, there is one inconsistency that requires that Mr Razzak's subsequent account, identifying the accused as one of his assailants, be assessed with circumspection. On the night, when the police attended the scene and spoke with Mr Razzak, he denied that he had been present at the time of the shooting.

44 In the Crown's submission, Mr Razzak has given a satisfactory explanation for his reticence when first speaking with the police. In evidence-in-chief he was asked these questions and he gave these answers:

Q. Please go slowly and tell me what you just said, what was it you just said when the police came?
A. I answer his question, that's all.

Q. Did you tell them you were there?
A. No.

Q. Did you tell the police you weren't there?
A. Sorry, what do you mean?

Q. Did you tell the police you were not there when the shooting happened?
A. Yes.

Q. Why?
A. I am scared.

Q. What are you scared of?
A. I know what going to be come after that.

Q. What do you mean by that?
A. I don't want killing, I want to be both families out of trouble (T 158. 27-49 of 16.2.06)

45 It was Mr Razzak's account that after the murder of Ali Abdul Razzak outside the Lakemba mosque on 29 August he realised that there was no prospect of peace between his family and the Darwiche family, and at that time he resolved to tell the police what he knew of the earlier shooting in Yanderra Street. In the event, he did not tell the police that he had been the victim of the Yanderra Street shooting, and that Abdul Darwiche was one of the shooters, until 15 September 2003. He gave as the explanation for this delay that there had been many visitors to his home in the days following the murder of Ali Abdul Razzak and that he had not had the time to take the matter up with the police. This did not seem to me to be a wholly satisfactory explanation for the delay.

46 Mr Doris submitted that it is relevant to take into account that the first identification of the accused as one of the shooters was one made more than two weeks after the event, in the context of the bitter hatred between the families. I do take that circumstance into account. It is to be noted that Mr Razzak’s first contact with the police came after he and his wife had returned Ali Abdul Razzak's children to Khadjie Darwiche, following intervention by the Imam of the Lakemba mosque, who mediated issues relating to the care of the children in the aftermath of the murder.

47 The Crown Prosecutor submitted that the initial delay in giving a truthful account to the police should not tell against an acceptance of the reliability of Mr Razzak's identification when the evidence is viewed as a whole. As he observed, there can be no doubt that there were persons inside No. 106 Yanderra Street at the time of the shooting, yet no contact was made by any of the occupants with the police or emergency services. The inference to be drawn is that no person at No. 106 wished to involve the police in the investigation of this violent incident.

48 The Crown pointed to the evidence that in the immediate period following the shooting, Farouk Razzak identified the accused as one of his assailants to his wife. The Crown also pointed to the evidence of Jomana that her father had come back into the house after the shooting and said that his assailants were Eddie and Abdul. The Crown relied on the evidence of other witnesses concerning things that Mr Razzak said about the identity of the assailants on the evening of the shooting or the following day. In considering the evidence of the things said by Farouk Razzak, shortly after the shooting, I bear in mind the necessity of being satisfied that he nominated the accused as one of the shooters and not merely that he gave an account that his assailants were Darwiches. As I have already noted, the original trouble between the families is said to have commenced as the result of some incident involving Mohamad Ali Darwiche. There has been reference to the accused as being one of a number of brothers.

49 Hicham Razzak gave evidence that he had spoken with his brother, Farouk, at Ali Abdul Razzak's unit after the shooting. It was not clear whether he was referring to the evening of the shooting or the following evening. Nothing turns on this. Hicham Razzak did not recall the things that his brother had said. The Crown was given leave to question him pursuant to s 38(1)(c) of the Evidence Act in relation to the opening sentences of paragraph seven of a statement that he made to the police on 22 December 2003. He agreed that in that statement he said that Farouk Razzak told him, "the Darwiches, they shoot at our place". Hicham Razzak agreed that this account was truthful. It provides no support for a finding that in the period immediately following the shooting Farouk Razzak nominated the accused as one of his assailants.

50 Jamal Razzak gave evidence of the things Farouk Razzak said at Ali Abdul Razzak's unit in the presence of Hicham and their brother, Ahmed. He recalled Farouk saying:

He say he saw Abdul and he saw Adnan outside and a friend too and he told me what car it was (T 365. 16-18).

51 In assessing the reliability of Jamal Razzak's recall I note that in a statement he made to the police on 11th of September 2003 he said this:

We all drove to Ali Abdul Razzak's place in Lakemba. We all drove there in separate cars. When we got there Farouk and his wife were there and of course Ali was there. I asked Frank 'what happened, who shot you', Frank said, 'first they shoot three times into my door so I go to the front door and yell out "who shoot here you bastards". I see white car and straight away I saw Eddie in it'. I can't remember when he told me but he said to me that it was a white Hyundai Excel. Frank say then they fire more bullets at me, straight up to me and one bullet just touched me here.

Jamal Razzak did not say in his statement made close to the date of the incident, that Farouk Razzak named the accused as being one of his assailants.

52 Rana Razzak gave evidence of being present at Ali Abdul Razzak's Lakemba unit on the night of 27 August 2003. Referring to events on the evening of the shooting she said:

A. Uncle Ahmed and uncle Hicham, and I don't even remember Jamal being there but I think he was. I am not sure. I don't remember, however, I just popped my head in and saw the two main uncles. I said 'hi' to them and by that time it was Jomana, Mohamad myself and Donna were in the bedroom with the little kids, playing with them. We were playing with them so I can overhear them but I can't recall their words 100 percent but I can overhear them saying things like--

Q. Stop you there, in relation to things you heard your father say as opposed to other people, did you hear what your father said as opposed to other people?

A. Yes, these are my father's words and this is me over hearing everything. It was basically saying how he saw Eddie and Abdul Darwiche standing there, shoot at him and he also said something along the lines of the bullet shredded through his shirt and gave him a mark somewhere on his chest. He was also saying something along the lines where he was standing where the gun shots were fired. He said he was standing on the front patio where the door is. You have your main door and you have your door that stops flies from entering it. He was standing on the door that stops flies from entering in and when the gunshots went off, he tried to turn around and run inside the house but the bullets literally were apparently swirling around him and all too close so he obviously panicked. He said something along the lines that he could hear my sister screaming and my mother screaming to my father telling him to 'get back in', 'get back in' and that is what I heard from my father (T 428).

53 In cross-examination Rana Razzak agreed that at the committal hearing at the Local Court she had given evidence and that on the occasion when she, Jomana, Mohamad and Donna Fadha were in the bedroom playing with Ali Abdul Razzak's children, she had not been in a position to hear the things that her father had said concerning the incident. In the Crown's submission, this did not carry with it that she was to be rejected in her account that her father had nominated Abdul Darwiche as one of the shooters on an occasion in the period following the incident when she was present. To my mind there was a troubling inconsistency between the evidence given by Rana Razzak at the committal hearing and her evidence that I have set out above.

54 There were other unsatisfactory features of the evidence of Rana Razzak. I refer to the answers given in cross-examination relating to the circumstances surrounding the sale of the black Jeep Cherokee. I express no view about the theory that the Cherokee was disposed of because it had bullet damage. There is no evidence to support that suggestion and it plays no part in my determination of the issues raised by the present application. However, to the extent that the Crown relies upon an acceptance of Rana Razzak I record that I considered her prevarication on the topic of the sale of the jeep to taint her evidence.

55 Mr Doris submitted the evidence of Nahla Razzak, that her husband nominated the accused as one of his assailants, should be rejected. In his submission Nahla Razzak's evidence was inherently implausible. He referred to her evidence that a bullet had passed between her legs. He noted the unlikelihood of this occurring, given Mrs Razzak's acceptance that she was wearing a skirt or dress that extended to her ankles and the absence of any evidence of damage to her garment.

56 It was difficult to assess the evidence of Nahla Razzak. English is not her first language and her evidence was given with the assistance of an interpreter. She was emotional and inclined to answer questions unresponsively, volunteering information in histrionic terms. Broadly, a similar observation may be made about aspects of the evidence of Farouk Razzak albeit he has a command of English. Much of this may be explained by the circumstance that Farouk and Nahla Razzak were recounting, a dramatic episode that must have been extremely terrifying and that took place in the context of the heated animosity existing between members of their family and the Darwiche family which was no doubt exacerbated by the deaths of Ali Abdul Razzak and Ziad Razzak.

57 I am satisfied that Nahla Razzak was present at the premises at 106 Yanderra Street at the time of the shooting and, while I do not find that a bullet passed between her legs, I do not find it inherently implausible that she believed that such an incident had occurred.

58 There is, however, a matter that stands in the way of an acceptance of Nahla Razzak as a witness who may be relied upon to have given an accurate account of all that took place at the time of the shooting. The same difficulty attends the evidence of Farouk Razzak and Jomana Razzak, as the Crown Prosecutor fairly acknowledged. It arises by reason of my acceptance of the evidence of the neighbours Jennifer Pine, Ronald Correy and his wife Diane Correy. Mr and Mrs Correy were living at 110 Yanderra Street on the western corner of Fourth Avenue.

59 Farouk Razzak and Nahla Razzak maintained that the only persons present at No. 106 at the time of the shooting were themselves and their two disabled children Jomana and Mohamad. On their account, the only person who walked outside the premises immediately following the first round of shots and, again, shortly after the second round of shots was Farouk Razzak.

60 Jomana Razzak gave evidence that her parents were both at home and her younger brother Mohamad was with them in the TV room. She gave no evidence of any other adult persons in the premises albeit she did not exclude as a possibility that her brother Samear may have been at home.

61 Jennifer Pine heard the first round of shots. After this, she looked through her dining room window into the premises at No. 106 Yanderra Street. She saw people heading towards the front of the house. She said this:

I saw a few people, I don't know how many, running towards the front of the house and a bit of yelling.(T 346).

62 The light was on in No. 106 and she was able to see into the house. She saw a number of people coming out on to the front verandah of No.106; "mostly male … there were young people and there was an older woman and an older man" (T 347). She saw a group of persons on the front verandah. These included the older man, whom she later described in terms that bore a close resemblance to the appearance of Farouk Razzak. These persons were on the front verandah after the second round of shots either before she made her phone call to the 000 emergency service or just after it. She saw people leaving the premises in a car. About four people came out of the house and got into a car which was parked in the driveway or across the driveway. It was a black, small four-wheel-drive vehicle. Her impression was that these persons were male.

63 Mrs Pine made a statement concerning these events on 12th of November 2003. In that statement, she gave an account of seeing about six persons on the front verandah.

64 Ronald Correy, heard both volleys of shots. He recalled the second as being longer than the first. After hearing the second volley, he went into his son's room which looked out in the direction of No. 106, although a tree obscures the view of the corner of Fourth Avenue and Yanderra Street. He saw a car travelling west, which made a u-turn into the driveway of No. 106. A black four-wheel-drive was parked in the driveway. Mr Correy observed a lot of noise and activity, people coming, running out of the house and jumping into the two cars, which backed out and took off up the road.

65 Mr Correy described the car that turned into the driveway as possibly being a Ford. I inferred that it was not a four-wheel-drive vehicle. His wife's evidence was consistent with his concerning the activity in the immediate aftermath of the shooting. Mrs Correy also made observations from the window in their son's bedroom. The observations that she made were within 30 seconds or a minute of her husband taking up a position in that room.

66 The evidence of Mr and Mrs Correy dovetailed with the evidence of Jennifer Pine concerning the number of able-bodied adult persons who were present at No. 106 at the time of the shooting.

67 I have considered whether Mr and Mrs Correy's observations may be consistent with seeing Donna Fadha arriving shortly after the shooting and taking Mohamad and Jomana away. I am satisfied that this is not the inference to be drawn. Jomana Razzak said that she and her brother, Mohammed, had been assisted to Donna Fahda's car and that the three of them had driven away. She gave no account of other persons leaving the premises at about that time. There is evidence that I consider satisfactory tending to suggest that Donna Fadha was driving a silver coloured four-wheel-drive vehicle that night.

68 I am satisfied that at the time of the shooting there were adult persons present at No. 106 Yanderra Street, in addition to Farouk Razzak and Nahla Razzak. The likelihood is that other adult male members of the Razzak family were at home, and that for whatever reason neither Farouk Razzak nor his wife were willing to disclose that fact.

69 The evidence of the three neighbours raises a doubt in my mind about the acceptance of the evidence of Farouk, Nahla and Jomana Razzak, concerning events at the time of and in the immediate aftermath of the shooting. It follows from this, and from the observations I made earlier concerning the evidence of Hichem, Jamal and Rana Razzak about conversations with Farouk Razzak, that I am not satisfied to the requisite standard that in the period following the shooting Farouk Razzak nominated the accused as one of his assailants.

70 A further feature of the evidence of Farouk Razzak that was relied upon by Mr Doris as demonstrating unreliability related to his account of suffering injury at the time of the shooting and of the damage to his shirt. Mr Razzak said that he had sustained minor injuries when he was struck by fragments of projectiles. He described three injuries that had caused him pain. In cross-examination he was asked whether a bullet, or bullet fragment, had lodged in his chest and he said, "The bullets that hit the wall and the door, as a result of it some fragments entered my body" (T 84. 35-36). He removed the fragments and they burnt his hand, although he did not say that he had sustained injury to his hand. He identified two areas of his torso as having sustained injury: an area on the upper left chest above the nipple; and, on the left below the base of the ribcage. He did not maintain that the fragments had penetrated the skin lodging in his body, but they had left visible marks on him. There was a mark like a scar from a burn on his left upper chest and he saw blood in this area. The fragment that struck him here had torn the fabric of the black long-sleeved shirt that he was wearing.

71 When asked to describe the tear that he had seen in the fabric of the shirt, Mr Razzak said this:

It's not like an actual tear. It's like as if it pulled some strings from the shirt and then the shirt, like it doubled like that (indicated) and the position it’s like that.

Q. Was there any break in that position in the fabric of the shirt?
A. There was like a break in the fabric, yeah, correct.

Q. How long or how large was the break in the fabric located in that position?
A. (Indicated) About that long, that long should be the start (T 87-88).

He indicated a distance of about two and a half inches in Imperial measurement.

72 Mr Razzak said that when he spoke with Detective Schreuder on 15 September 2003 he had been asked questions about what he was wearing on the night, and that Detective Schreuder had asked him to bring the shirt to the police. Although there was some uncertainty about the number of occasions on which he said he had attended the Hurstville Police Station, he was insistent that it was at the request of the police that he brought the shirt he had been wearing to the station and not that he had volunteered it.

73 Mr Razzak was asked if he had pointed out areas of damage on the shirt to the police and he said that he did not think he had. He did not believe that he had told them there was a hole in the shirt made by a fragment of a bullet at the time of the shooting.

74 In the course of his evidence Mr Razzak was shown the shirt, Ex M, and he identified as the damage caused by the fragment that had struck his left upper chest a loose thread and the associated disturbance to the fabric. He was shown photographs taken by Snr Const Gane of the shirt depicting the holes in it, Ex C. He was asked:

Q. Those holes are nowhere near either of the locations that you have indicated in your evidence today, you agree?
A. I don't feel that these holes burn me".

...

Q. When the shirt was in the room with you and Det Schreuder did you point to any part of the shirt indicating damage that you were telling him had been occasioned on 27 August?
A. Not at all, I didn't point out to him anything at all. There was coming out at that stage, at that stage I wasn't aware much damage happen to the shirt. Only I've seen the torn off fabric on that shirt at the time. That's the time of the shooting. That's what I was looking for. There was nothing in my mind at that stage. I gave the shirt to the police for the police to see the shirt. I have no idea.

Q. When you referred in your last answer to "torn off fabric", what part of the shirt are you talking about?
A. It’s like, it's the top part of the shirt when I’ve seen the fabric like wrinkled up.

Q. Indicating the part of the shirt above the left nipple, am I correct?
A. Yes.

Q. Is it the case therefore that you pointed out that aspect of the shirt to police on 15 September, but nothing else?
A. Correct, yes. I haven't told him about anything else. (T 97-98)

75 In a statement made on 24 October 2003 Mr Razzak said (at paragraph 12):

Detective Wakeham asked me if I was injured in any way as a result of the shooting. I never got shot but a bullet or something must have grazed along my chest as I opened the door to my house. Later I saw that my shirt had two small rips in the front of it. I got a small mark on my chest also. I never went to the doctor's because it was only a small mark and there was no reason to go. I later gave this shirt to Det Schreuder.

76 Mr Razzak was asked what “two small rips” in the front of the shirt he had referred to when making the statement to Detective Wakeham. He indicated the left upper chest area and an area on the left lower torso. He did not indicate the two visible holes on the lower right front of the shirt.

77 Detective Schreuder interviewed Mr Razzak on 15 September 2003. He said that Mr Razzak brought the shirt with him on that occasion. It had not been requested by the police. In his statement Detective Schreuder said that Mr Razzak told him that it was the shirt that he had been wearing at the time of the shooting and that the hole was made by a bullet or fragment. Detective Schreuder was shown Ex M and indicated as the hole to which Mr Razzak referred him, the visible holes on the right side of the shirt below the third button.

78 Plainclothes Constable Giles was present on 15 September 2003 when Mr Razzak gave his statement. He recalled Mr Razzak had produced the shirt on that occasion and pointed out an area of damage on the shirt. Constable Giles identified the area of damage as the two visible holes on the right front of the shirt.

79 I am satisfied that Mr Razzak took the shirt, Ex M, with him to the police because he considered it significant, and that he showed the police the two visible holes on the right side of the shirt. The shirt was photographed at the direction of Detective Schreuder to record the presence of these holes. Detective Snow, the ballistics officer, examined the shirt to see if it showed signs of bullet damage and he found none. This is not determinative since the shirt had been washed. I note Detective Snow's opinion that the appearance of the holes, depicted in Ex C, were not consistent with the appearance of bullet holes. He had not observed any hole to the fabric of the shirt in this area of the left upper chest.

80 Nahla Razzak gave evidence that her husband had shown her an injury on his left upper chest and she had seen the shirt was torn where, as she put it, the bullet went through (T 191. 42). She said there was a tear to the fabric of the shirt in this vicinity which she estimated as being about one centimetre long. She had seen blood on the shirt and on the cut to her husband's chest.

81 In the course of her evidence Mrs Razzak was asked to point to the tear in the shirt that she had observed. She was invited to put her finger through the tear. She demonstrated by pushing her fingernail through a hole in the left upper part of the shirt. Mr Doris submitted that it was Mrs Razzak's demonstration that had ruptured the material of the shirt creating the hole. He pointed to the circumstance that Detective Snow had not observed the hole when he examined the shirt.

82 Detective Snow was asked to conduct a further examination of the shirt after Nahla Razzak identified the hole in the course of her evidence. He noted the hole on the upper left front on this occasion. He acknowledged it was possible that he had overlooked it on the previous examination, although he would like to think he had not done so.

83 Plainclothes Constable Giles recalled that Mr Razzak complained of injuries as a result of the shooting but he had not observed any injury to him. According to Mr Razzak, the burn or scar-like injury to the upper chest was visible for three months after the incident. Detective Schreuder and Constable Giles said that Mr Razzak had been given an opportunity to demonstrate any injury that he had suffered. I accept that is so.

84 The Crown Prosecutor pointed to the circumstance that there was consistency in Mr Razzak's account that he had suffered some injury to his left upper chest and that this was supported by the evidence of his wife and daughter. I accept that is the case. Nonetheless there were unsatisfactory features of the evidence relating to the production of the shirt and Mr Razzak's account of the damage that he had observed to it.

85 As I have said, I find that Mr Razzak pointed to holes that are visible in the fabric of the shirt on the right-hand side of the shirt at the time he spoke to police. This was done in an endeavour to support an acceptance of the account that he gave to police concerning the shooting. It was not consistent with the evidence at the trial. I express no view about whether the hole on the left upper side of the shirt was created deliberately or otherwise by Mrs Razzak in the course of giving evidence.

86 Mr Razzak’s evidence, that on the night he experienced a burning sensation to his left upper chest, observed damage to his shirt in this region and had a visible scar which was still evident on 15 September, when assessed against evidence that on that date he gave the police an account of different damage to the shirt and did not show any signs of injury, raises an issue as to his reliability.

87 The Crown relied on an item of evidence that is independent of Farouk Razzak, as lending support to an acceptance of his evidence of identification. This was the evidence of Jamal Razzak that at around lunch time on Friday 29 August he observed the accused in a car driven by his brother, Adnan, in Bankstown. Two other persons were present in the car, the accused was seated in the rear seat and he pointed a gun that appeared to be a Kalashnikov at Mr Razzak.

88 This evidence was not tendered for a tendency purpose. It was tendered in order to establish within less than 48 hours of the shooting the accused was in possession of a gun, consistent with being a gun used by one of the shooters on 27 August.

89 There were features of the evidence of Jamal Razzak that were unsatisfactory. He answered questions, on occasions unresponsively, in circumstances in which I was satisfied that he had understood the question, and that his decision to answer it in the way that he did was a calculated one. By way of illustration his attention was directed to the contents of his statement made on 11 September 2003 and, in particular, to the circumstance that he had not referred to his brother nominating the accused as one of the shooters. In this context he was asked:

Q. What follows from that is that your version given to police of what Farouk told you did not mention Abdul Darwiche, that's correct, isn't it?
A. It's all from Abdul, he’s the one that encouraged Darwiche and everybody to shoot, and he's the one that got me into trouble in this catastrophe or this bad happening. I swear by Allah the greatest, he is the one who had dragged them into these problems. (T 389).

90 Jamal Razzak described the vehicle which he had seen the accused in on 29 August as a green coloured Commodore. In cross-examination his attention was directed to the description of the car that he gave in his statement as being a dark green colour. There followed a series of answers on this topic that I found difficult to follow. I will not set them out in full. Briefly, Jamal Razzak gave an account that he had told Detective Schreuder that the car was shiny and blue. He went on to say that he had signed the statement because he thought blue and green were close in colour (T 403.9-10). When asked if he considered blue to be the same colour as green, he said "no". He went on to describe the car as being a light blue colour. His evidence in this respect was not such as to instil confidence in him as a reliable witness.

91 In considering the evidence on this topic I am also mindful of the evidence of Rana Razzak, who was cross-examined about an account that she gave in a statement taken by Detective Nagle concerning an incident on Friday 29 August 2003 that occurred around lunchtime. In that statement she described receiving a telephone call from Donna Fahda, who told her that Eddie, whom I take to be a reference to Adnan Darwiche, was travelling in a Volvo, described as being “eggplant" in colour, with four men described as “his boys”, Ramzi and the fat puppet". Rana Razzak says that at this time she was driving to the motor registry in Bankstown and just after receiving the call, she observed a Volvo that was “eggplant” in colour in Wattle Street Mount Lewis, a location about five minutes from Bankstown. There were four or five men whom she described as being over weight and Lebanese in appearance. She did not identify the accused as being in the vehicle. As the Crown Prosecutor observes, it may be that her evidence should be put to one side, since she did not say that she saw Adnan Darwiche in the vehicle, although her attention appears to have been directed to it by Donna Fahda’s assertion that he was. The incident has some similarity to aspects of the account given by Jamal Razzak of a car of blue/green colour associated with Adnan Darwiche containing a number of men of Lebanese appearance that was being driven at lunchtime on 29 August in the Bankstown area. This account is notable for its absence of a reference to the accused.

92 Jamal Razzak was in frequent contact with the New South Wales Police Service over the period of these events and he does not appear to have made any complaint concerning the incident in which he says he was assaulted by the accused aiming a Kalashnikov rifle at him until he made the statement on 11 September 2003. I do not accept Jamal Razzak’s evidence as establishing that the accused was in possession of a Kalashnikov rifle on 29 August 2003. I approach the matter on the basis that there is no independent evidence to support the identification made by Farouk Razzak of Abdul Darwiche as one of the shooters.

93 Farouk Razzak's identification was based on a fleeting opportunity to see his assailants in circumstances that were urgent and terrifying. For whatever reason, he did not give a truthful account of the events on the night of their occurrence. I am satisfied, taking into account the evidence of Jennifer Pine and Mr and Mrs Correy, that he has not given a complete account of the events of that night at the trial. This finding, and the other matters to which I have referred, necessarily raises a doubt in my mind as to the accuracy and reliability of Farouk Razzak’s evidence of identification. It follows that I am not satisfied beyond reasonable doubt that Abdul Darwiche was present in Yanderra Street, firing a weapon at Farouk Razzak on the evening of 27 August 2003.

94 Stand up please Abdul Darwiche. Abdul Darwiche on the charge that on 27 August 2003 at Condell Park in the State of New South Wales you did shoot at Farouk Razzak with intent to murder the said Farouk Razzak, I find you not guilty. I direct that my verdict be entered. On the alternative count, that on 27 August 2003 at Condell Park in the State of New South Wales, you maliciously did discharge a loaded firearm with intent to do grievous bodily harm to Farouk Razzak, I find you not guilty. I direct that my verdict be entered.

oOo