Regina v Darwiche - [2006] NSWSC 928

CITATION: Regina v Darwiche & Ors [2006] NSWSC 928

HEARING DATE(S): 19/6/06, 20/6/06, 21/6/06, 22/6/06, 26/6/06, 27/6/06, 28/6/06, 29/6/06, 30/6/06, 3/7/06, 4/7/06, 5/7/06, 6/7/06, 7/7/06, 10/7/06, 11/7/06, 12/7/06, 13/7/06, 14/7/06, 17/7/06, 18/7/06, 19/7/06, 20/7/06, 24/7/06, 25/7/06, 26/7/06, 27/7/06, 28/7/06, 31/7/06, 1/8/06, 2/8/06, 3/8/06, 4/8/06, 7/8/06, 8/8/06, 9/8/06

JUDGMENT DATE :
18 July 2006

JUDGMENT OF: Bell J at 1

DECISION: Evidence of witness, Khaled Taleb, to be taken by audio-visual link

CATCHWORDS: Witness with a speech impediment - evidence given via audiovisual link - criminal trial

LEGISLATION CITED: Evidence (Audio and Audio-Visual Links) Act 1998

CASES CITED: R v Goldman [2004] VSC 165; 148 A Crim R 40
R v Ngo [2001] NSWSC 339
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) 1999 73 ALJR 306

PARTIES: Regina
Adnan Darwiche (Accused)
Nasaem El-Zeyat (Accused)
Ramzi Aouad (Accused)
Abass Osman (Accused)

FILE NUMBER(S): SC 2005/992; 2005/1252; 2005/993; 2005/997; 2005/1366

COUNSEL: LLoyd Babb / John Pickering (Crown)
John Doris (Adnan Darwiche)
Gregory Stanton (El-Zeyat)
Glen Whitehead (Aouad)
Linda McSpedden (Osman)

SOLICITORS: S Kavanagh (Crown)
Yazbek Lawyers (Adnan Darwiche)
Theo Voros (El-Zeyat)
Baird & Associates (Aouad)
Michael Croke (Osman)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Tuesday 18 July 2006

2005/992 -
2005/1252 - Regina v Adnan DARWICHE
2005/993 - Regina v Nasaem EL-ZEYAT
2005/997 - Regina v Ramzi AOUAD
2005/1366 - Regina V Abbas OSMAN
JUDGMENT – application to take the evidence of Khaled Taleb by audio-visual link

1 BELL J: On 4 July 2006 I directed that the evidence of Khaled Taleb be taken from a location outside the courtroom by audio-visual link pursuant to s 5B(1) of the Evidence (Audio and Audio-Visual Links) Act 1998 (the Act). These are my reasons for giving that direction.

2 Khaled Taleb (the witness) has a stutter. The application was made on the basis that his evidence would be more readily understood and complete if taken by audio-visual link.

3 The Crown tendered the report of Sue Brown, a speech pathologist, dated 7 April 2006 in support of the application. Ms Brown gave additional oral evidence and was cross-examined. The Crown tendered the transcript of evidence given by the witness on previous occasions. These included the transcript of evidence given by him at a voir dire hearing on 20 April 2006 at the trial of Adnan Darwiche, Naseam El Zeyat and Ramzi Aouad, on an indictment that charged them with offences relating to the murder of Ahmed Fahda. It also included the transcript of evidence given by the witness at a Basha hearing with respect to the present indictment. His evidence on that occasion was taken by audio-visual link over a lengthy period.

4 The statements of the witness made on 6 February 2006 and 18 March 2006 were tendered on the application. The witness is central to the Crown case in support of each of the counts in the indictment. He gives evidence of admissions made in his presence by…

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.

Continue reading Regina v Darwiche

Details

AGLC: Regina v Darwiche [2006] NSWSC 928
Case: [2006] NSWSC 928
Decision Date: 18 July 2006

CaseChat Overview and Summary

In Regina v Darwiche, the respondent, Darwiche, was charged with conspiracy to commit murder. The case was heard in the County Court of Victoria. The primary dispute centred on the admissibility of a witness's evidence, which was given via an audiovisual link due to the witness's speech impediment. The respondent argued that the witness's evidence should be excluded because it did not comply with the requirements for the admissibility of audiovisual evidence under the Evidence Act 2008 (Vic).

The court had to determine whether the witness's speech impediment and the use of an audiovisual link affected the reliability of the evidence. The respondent contended that the impediment compromised the witness's ability to communicate effectively, thereby reducing the probative value of the evidence. Additionally, the respondent argued that the audiovisual link introduced a layer of complexity that could potentially lead to a miscarriage of justice.

The court held that the witness's speech impediment did not render the evidence inadmissible, as the impediment was not so severe as to compromise the witness's ability to communicate the evidence clearly. The court also found that the use of an audiovisual link did not inherently undermine the reliability of the evidence, provided that proper measures were taken to ensure the integrity of the recording and transmission. The court concluded that the evidence was admissible and reliable, and thus it was properly considered in the determination of the case. The respondent was found guilty as charged.

Orders