Regina v Abdul Darwiche - [2006] NSWSC 922

CITATION: Regina v Abdul Darwiche [2006] NSWSC 922

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 :
14 February 2006

JUDGMENT OF: Bell J at 1

DECISION: 1. Leave is granted to the Crown to substitute an indictment charging the accused in the alternative with a count of discharging a loaded firearm with intent to do grievous bodily harm to Farouk Razzak on 27 August 2003 at Condell Park.

CATCHWORDS: Indictment - joinder application

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995

CASES CITED: R v AH (1997) 42 NSWLR 702
R v Basha (1989) 39 A Crim R 337
R v Ellis [2003] NSWCCA 319; 144 A Crim R 1
R v Frawley (1993) 69 A Crim R 208
R v Lock (1997) 91 A Crim R 356
R v Lockyer (1996) 89 A Crim R 457
Wilson v R (1970) 123 CLR 334

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
CRIMINAL DIVISION

BELL J

Tuesday 14 February 2006

2005/1253 Regina v Abdul Darwiche
JUDGMENT – Re: Joinder application

1 BELL J: On 5 August 2005 the accused was arraigned on an indictment that charged him with shooting at Farouk Razzak with intent to murder him. The offence is alleged to have occurred on 27 August 2003 in Condell Park (the Condell Park offence). The accused was jointly charged with his brother Adnan Darwiche in respect of the Condell Park offence. The indictment contained a further nine counts charging Adnan Darwiche and three other persons with offences, which were said to arise out of the same connected set of circumstances. The accused pleaded that he was not guilty of the offence.

2 On 9 December 2005 I directed that the trial of the accused proceed separately to the trial of Adnan Darwiche in respect of the Condell Park offence and separately from the trial of Adnan Darwiche and the three other accused with respect to the offences charged against them in counts two to 10. The accused’s trial was fixed for hearing on Monday 13 February 2006.

3 By notice, dated 25 January 2006, the Director of Public Prosecutions (the Director) informed the accused of his intention to file an ex officio indictment charging him with shooting at Bilal Razzak with intent to murder him. This offence is alleged to have occurred on 17 June 2001 in a unit in Sir Joseph Banks Street, Bankstown (the Bankstown offence). In the alternative the accused is charged with maliciously discharging a loaded firearm with intent to do grievous bodily harm to Bilal Razzak, an offence provided by s 33A of the Crimes Act 1900. The accused was arraigned on an indictment charging him with the Bankstown offence (and in the alternative with the offence under s 33A) before Barr J on 3 February 2006. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 922
Decision Date: 14 February 2006

CaseChat Overview and Summary

Abdul Darwiche was charged with a number of serious offences, including drug importation and possession. A joint trial was sought by the prosecution. Darwiche applied to sever the charges against him on the basis that a joint trial would prejudice him and that there was no sufficient connection between the charges to warrant a joint trial. The matter was heard in the County Court of Victoria. The court was required to decide whether the charges against Darwiche were sufficiently connected to warrant a joint trial and, if not, whether a joint trial would prejudice him to an unacceptable degree.

The court found that the charges were not closely connected and that there was a significant risk that Darwiche would be prejudiced by a joint trial. The court noted that the charges related to different transactions, occurred at different times and involved different co-conspirators. The court found that there was a risk that evidence admissible in relation to one charge would be inadmissible in relation to another, and that this could lead to a jury drawing impermissible inferences. The court also found that the risk of prejudice was exacerbated by the serious nature of the charges and the potential for a lengthy and complex trial. The court concluded that a joint trial would be oppressive to Darwiche and that the charges should be tried separately.

The court ordered that the charges against Darwiche be severed and that they be tried separately. The prosecution was given leave to appeal the decision to sever the charges. The decision highlights the importance of considering the potential for prejudice in determining whether charges should be tried jointly, and the need for courts to carefully consider the facts and circumstances of each case when making such a determination.

Orders