Regina v Darwiche

[2006] NSWSC 929

CITATION:	Regina v Darwiche & Ors [2006] NSWSC 929
HEARING DATE(S):	22/5/06, 23/5/06, 24/5/06, 25/5/06, 26/5/06, 30/5/06,
JUDGMENT DATE :	30 May 2006
JUDGMENT OF:	Bell J at 1
DECISION:	Dismiss the motion filed by Adnan Darwiche on 9 November 2005; Dismiss the motion filed by or on behalf Nasaem El-Zayet on 6 December 2005; Dismiss the motion filed on behalf of Abbas Osman on 11 November 2005; Dismiss the motion filed on behalf of Ramzi Aouad on 7 December 2005; Grant leave to the Crown pursuant to s 20(1) of the Criminal Procedure Act 1989 to substitute the proposed indictment for the indictment upon which each accused was previously arraigned.
CATCHWORDS:	Application for leave to substitute indictment – s 20 Criminal Procedure Act 1986 – joinder of offences and offenders – offences forming part of a series of offences of a similar character
LEGISLATION CITED:	Criminal Procedure Act 1986 Criminal Procedure Act 1989 Criminal Procedure Amendment (Justices and Local Courts) Act 2001 Evidence Act 1995 Justices Act 1902 Justices (Amendment) Act 1987
CASES CITED:	R v Baartman (unreported) NSW CCA 6 October 1994 R v Basha (1989) 39 A Crim R 337 R v Hass [1972] 1 NSWLR 589 R v Sheikh [2002] NSW CCA 136 R v Toki [2000] NSWCC 999; 116 A Crim R Webb and Hay v R (1994) 181 CLR 41
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 30 May 2006

2005/992
2005/1252 - Regina v Adnan DARWICHE
2005/993 - Regina v Naseam EL-ZAYET
2005/997 - Regina v Ramzi AOUAD
2005/1366 - Regina v Abbas OSMAN

CRIMINAL LIST
NON-PUBLICATION ORDER FOR WITNESSES' NAMES

JUDGMENT - on applications to substitute indictment and separation of counts - see p365 of transcript.

JUDGMENT

1 BELL J: This is an application by the Crown for leave to substitute an indictment joining additional counts that have been preferred ex-officio against the accused, Adnan Darwiche, together with applications made by each accused for the separate trial of certain of the counts.

2 On 5 August 2005 each accused was arraigned on an indictment containing 10 counts (the August indictment). Each accused entered a plea of not guilty to each count in the August indictment that charged him with an offence.

3 The August indictment contained the following counts:

Count 1: On 27 August 2003 at Condell Park Adnan Darwiche and Abdul Darwiche shot at Farouk Razzak with intent to murder him (the Yanderra Street shooting).

Counts 2 – 4 charged Adnan Darwiche with firearm offences committed on 28 November 2003, the date of his arrest.
Counts 5 – 7 charged each of the accused with offences arising out of a shooting at premises in Lawford Street, Greenacre on 14 October 2003 (the Lawford Street shooting). Count 5 charged the murder of Ziad Razzak. Count 6 charged the murder of Mervat Nemra. Count 7 charged the offence of shooting at Ali Hamka with intent to murder.
Counts 8, 9 and 10 arose out of the shooting of Ahmed Fahda at the AP Service Station in Punchbowl on 30 October 2003. Count 8 charged Adnan Darwiche with soliciting the murder. Count 9 charged Naseam El-Zeyat and Ramzi Aouad with the murder. Count 10 charged Adnan Darwiche as an accessory after the fact to the murder of Ahmed Fahda.

4 Counts 5, 6 and 7, which related to the Lawford Street shooting, were preferred ex-officio against each accused.

5 The trial of the accused on the August indictment was fixed to commence on 13 February 2006.

6 On or before December 2005 each accused filed a notice of motion claiming orders, including for severance of certain of the counts in the August indictment. The motions were listed for hearing on 8 December 2005.

7 Abbas Osman sought an order that the counts arising out of the Lawford Street shooting be tried separately from the remaining counts. He also sought a temporary stay of proceedings until such time as "the accused is remitted to the Local Court so as to afford him the opportunity to cross-examine witnesses at a committal hearing".

8 Nasaem El-Zayet moved for orders that counts 1, 2, 3, 4, 9 and 10 be severed from the indictment.

9 Ramzi Aouad moved for orders, including that his trial on count 8 (the Fahda murder) be separated from the trial of counts, 5, 6 and 7 (the Lawford Street count). He sought an order that his trial on these counts proceed separately from the trials of his co-accused. He also sought a temporary stay of proceedings in relation to counts 5, 6 and 7, pending the conduct of a committal hearing.

10 Adnan Darwiche moved for orders, including that count 1 (the Yanderra Street shooting) be severed from the other counts in the indictment, and that he be tried separately from his brother Abdul in relation to it. He sought further orders that counts 2, 3 and 4 (the firearms charges) be tried separately from the other counts in the indictment, and that the Lawford Street counts be tried separately. In relation to these latter counts, he also sought a separate trial from his co-accused. Adnan Darwiche also sought an order that a number of witnesses be made available for cross-examination at a Basha style inquiry (R v Basha (1989) 39 A Crim R 337).

11 When the motions came on for hearing on 8 December the Crown Prosecutor, then briefed in the matter, informed the Court that Abdul and Adnan Darwiche had been charged two days earlier with shooting at Bilal Razzak with intent to murder him, an offence that was alleged to have occurred on 17 June 2001. He foreshadowed an application by the Crown for leave to substitute an indictment containing ex-officio counts in respect of this offence in addition to the 10 counts in the August indictment.

12 On 9 December 2005 I directed that the trial of Abdul Darwiche on count 1 proceed separately from the remaining counts in the indictment, and separately from the trial of his co-accused, Adnan Darwiche. I stood the trial of Abdul Darwiche over to 13 February 2006.

13 The Crown acknowledged that in light of the inclusion of the ex-officio counts in the August indictment it was appropriate that before the trial of those counts proceed each accused have the opportunity to cross-examine a number of witnesses at a Basha hearing. The parties were agreed that the convenient course was for the remaining motions for separation to be stood over for determination after the evidence had been taken at the Basha hearing. The latter hearing was fixed to commence on 27 February 2006 or upon the conclusion of the trial of Abdul Darwiche.

14 By notice filed on 16 February 2006 the Director of Public Prosecutions signified his intention to proceed against Adnan Darwiche on the date appointed for the trial of the August indictment on additional ex-officio counts charging him with, (i) on 17 June 2001 shooting at Bilal Razzak with intent to murder; (ii) in the alternative, on 17 June 2001 discharging loaded arm with intent to inflict grievous bodily harm on Bilal Razzak; (iii) on 29 August 2003 the murder of Ali Abdul Razzak.

15 The trial of Abdul Darwiche was completed on 8 March 2006. The following day I returned to the part heard motions and other preliminary matters arising out of the trial of the remaining counts in the August indictment.

16 Mr W, Mr H, Mr J and Mr X each gave evidence at the Basha hearing. In the course of the hearing the Crown Prosecutor, who had recently taken over the conduct of the proceedings, informed the Court that the Crown now proposed that the trial of the counts arising out of the murder of Ahmed Fahda proceed separately to the trial of the remaining counts. It was the Crown's intention to proceed with the trial of the Fahda counts at the conclusion of the Basha hearing. I gave the Crown leave to substitute a fresh indictment containing three counts relating to the murder of Ahmed Fahda.

17 The trial of the accused in relation to the murder of Ahmed Fahda commenced on 3 April and concluded on 16 May 2006. I fixed the part-heard motions for severance, together with the Crown's application to substitute an indictment containing counts relating to the shooting of Bilal Razzak and the murder of Ali Abdul Razzak, for hearing on 22 May 2006.

18 On 22 May the Crown applied for leave under s 20(1) of the Criminal Procedure Act 1986 (the CPA) to substitute an indictment containing seven counts for the indictment upon which the accused had earlier been arraigned (the proposed indictment).

19 The proposed indictment contains the following counts:

Count 1: that Adnan Darwiche on 17 June 2001 at Bankstown shot at Bilal Razzak with intent to murder;
Count 2: in the alternative, that Adnan Darwiche on 17 June 2001 at Bankstown, maliciously discharged a loaded firearm with intent to do grievous bodily harm to Bilal Razzak;
Count 3: that Adnan Darwiche on 27 August 2003 at Condell Park shot at Farouk Razzak with intent to murder;
Count 4: in the alternative, that Adnan Darwiche on 27 August 2003 at Condell Park maliciously discharged a loaded firearm with intent to do grievous bodily harm to Farouk Razzak;
Count 5: that Adnan Darwiche on 29 August 2003 at Lakemba murdered Ali Abdul Razzak;
Count 6: that Adnan Darwiche, Naseam El-Zeyat, Ramzi Aouad and Abass Osman on 14 October 2003 at Greenacre murdered Ziad Razzak;
Count 7: that Adnan Darwiche, Naseam El-Zeyat, Ramzi Aouad and Abass Osman on 14 October 2003 at Greenacre murdered Mervat Nemra.

20 In the course of the earlier hearing of the motions brought by the accused the Crown tendered briefs of evidence in relation to each of the counts in the August indictment. Subsequently briefs of evidence in relation to the ex officio counts charging the shooting of Bilal Razzak and the murder of Ali Abdul Razzak were added to the exhibit (exhibit A).

21 The Crown relied on the contents of exhibit A in support of its application for leave to substitute the proposed indictment. A statement taken by Khaled Taleb dated 6 February 2006 (the Taleb statement) was added to exhibit A.

22 In addition to written submissions dated 8 December 2005, the Crown Prosecutor handed up a document titled "Chronology of Dispute Between Darwiche and Razzak Families" which details a number of incidents that the Crown proposes to lead in support of each count in the indictment. The Crown case in relation to each count is summarised in Crown case statements that were handed up on 22 May 2006 and which replace the Crown case statement dated 5 August 2005.

23 In the Crown’s submission the joinder of each of the counts in the proposed indictment is proper because the four events are connected and the evidence of each is relevant to the succeeding counts (in the case against Adnan Darwiche) as evidencing motive and the relationship between Adnan Darwiche and a number of members of the Razzak family. The Crown also contends for the admissibility of the evidence of each of the incidents against Adnan Darwiche to prove tendency and by way of the improbability of them having occurring by coincidence. Notices of the Crown’s intention to lead evidence under s 97 and 98 of the Evidence Act 1995, dated 6 February 2006, have been served. The Crown contends certain uncharged acts identified in the Chronology of Dispute are admissible in the case against Ramzi Aouad as evidencing motive and his relationship with members of the Razzak family.

24 The Crown case in relation to each count against Adnan Darwiche is substantially dependent upon the evidence of Khaled Taleb, one of his former associates. Khaled Taleb is a person of bad character who gives evidence under an indemnity.

25 In relation to the Yanderra Street shooting, the murder of Ali Abdul Razzak and the Lawford Street shooting the Crown rely on the evidence of Mr X of admissions made to him by Adnan Darwiche. Mr X is an indemnified witness of bad character. He has received a substantial monetary reward arising out of his assistance to the authorities in connection with these matters and with the prosecution of the three accused for offences arising out of the murder of Ahmed Fahda.

26 In relation to the Lawford Street shooting the Crown also relies on the evidence of Mr W. Mr W is an indemnified witness of bad character. He, too, has a financial incentive for his cooperation with the authorities in connection with these proceedings and the proceedings arising out of the murder of Ahmed Fahda.

27 There is no forensic evidence to link Adnan Darwiche to any counts in the indictment. In relation to the shooting of Bilal Razzak and the Yanderra Street shooting there is some evidence of identification of Adnan Darwiche as one of the shooters.

28 The Crown case statement relating to the shooting of Bilal Razzak includes reference to evidence that it is anticipated Bilal Razzak's younger brother, Houssam, will give of voice identification of Adnan Darwiche as one of the gunmen. Houssam Razzak recognised the gunman with the fatter build as Adnan Darwiche based upon his body shape and the appearance of his eyes. Both gunmen wore balaclavas covering their faces. It is no longer clear that Houssam Razzak will give evidence in support of the Crown case. In the event that he does, the Crown acknowledges that his purported identification of the accused must be assessed as of limited probative value.

29 Bilal Razzak's father, Jamal Razzak, is expected to give evidence that he saw the accused's brother, Abdul, standing outside the premises at the time of the shooting holding an object consistent with it being a firearm. This is a circumstance that the Crown relies on as providing some support for an acceptance of the admissions made by the accused to Khaled Taleb.

30 In relation to the Yanderra Street shooting the Crown relies on the evidence of Farouk Razzak who identified Adnan Darwiche as one of his assailants. His identification was made at night, over a considerable distance, in circumstances of some urgency. His opportunity to view the two gunmen was a fleeting one.

31 There is no evidence of identification of Adnan Darwiche in connection with the murder of Ali Abdul Razzak or the Lawford Street double murder.

32 Khaled Taleb gives a history of a dispute between Adnan Darwiche and members of the Razzak family commencing in February 2001 which includes each of the four incidents the subject of the counts in the proposed indictment. He describes guns used by Adnan Darwiche, himself and their associates in a number of shootings in south-western Sydney between 1997 and 2003. He says that he was present with Adnan Darwiche on 28 February 2001 when they and another man fired guns at premises at 42-56 Sir Joseph Banks Street, Bankstown at which they believed Bilal Razzak to be residing. He says that the Glock pistol that Adnan Darwiche used on this occasion was the same pistol that he saw Nasaem El-Zayet pick up as he left in company with his co-accused to carry out the Lawford Street shooting.

33 Khaled Taleb also gives an account that prior to the Lawford Street shooting he counselled Adnan Darwiche against using two SKS style rifles because each had been used in the earlier Yanderra Street shooting.

34 Ballistics evidence establishes that the same two SKS style rifles were used in the Yanderra Street shooting and the Lawford Street shooting. Ballistics evidence links a 9 mm pistol used in a shooting at premises at 42 - 56 Sir Joseph Banks Street, Bankstown on 28 February 2001 to one of the weapons used in the Lawford Street shooting.

35 The Crown contends that the four incidents charged against Adnan Darwiche in the proposed indictment are linked by a common motive and that in order to understand the evidence of the indemnified witnesses it is necessary to have an understanding of the relationship between Adnan Darwiche and a number of members of the Razzak family in the period leading up to the shooting of Bilal Razzak and continuing at the time of the Lawford Street shooting.

36 It is recognised that evidence of the relationship between the accused and another may be admitted to put the facts giving rise to a charge or charges into a proper context so that the jury can understand the acts of the accused against the background of the circumstances that existed at the relevant time: R v Toki [2000] NSWCC 999; 116 A Crim R per Howie J at 540 - 541; [23] - [30] in which the principles are conveniently collected.

37 The evidence that the Crown seeks to adduce in this case is of evidence of the relationship between the accused and Bilal Razzak, Gehad Razzak, Ali Abdul Razzak and, more generally, members of the Razzak family. This material is relied on substantially by way of illuminating the motive for the commission of the offences.

38 I will summarise the evidence that the Crown relies on as going to motive and the relationship between Adnan Darwiche and the Razzak family by reference principally to the account given in the Taleb statement. I note that there is material from other sources to support some aspects of the history that the Crown relies on in this respect.

39 In February 2001 Adnan Darwiche, Khaled Taleb and a man named Mitch Ayoubi met Bilal Razzak near Nemra’s Café. There was an altercation, during which a pistol fell to the ground and was picked up by Darwiche and placed in the front of his pants. This altercation is identified as the commencement of a dispute between Adnan Darwiche and Bilal Razzak. After this incident Adnan Darwiche’s younger brother, Ali, is alleged to have picked on Bilal Razzak on occasions and beaten him up.

40 On 25 February 2001 following an incident in which Bilal Razzak was assaulted by Ali Darwiche, he fired a number of shots into Adnan Darwiche’s car which was parked outside the Darwiche family residence in Lilac Street, Punchbowl. Adnan Darwiche viewed this incident as a serious threat to his standing within the area. He arranged for his brother Abdul, Khaled Taleb and Mitch Ayoubi to assist him in shooting at the houses of the persons believed to have been responsible for the attack on his car. The first to be dealt with was Bilal Razzak. They drove to Sir Joseph Banks Street and Adnan Darwiche, Khaled Taleb and Mitch Ayoubi each fired a number of shots into premises in which they believed Bilal to be residing. This is the incident that is linked by the ballistics evidence to the Lawford Street shooting.

41 On 28 February 2001 there was a meeting between members of the Razzak and Darwiche families that was called in order to settle the dispute between Bilal Razzak and Adnan Darwiche. During this meeting Adnan Darwiche threatened Bilal Razzak with a gun. He was restrained and said “OK I can do this anytime…I want you to give me Bilal or he must leave the country”. The Darwiches walked out of the meeting without matters being brought to a satisfactory resolution.

42 On the evening of the meeting Adnan and Abdul Darwiche drove past the Razzak family home and fired shots at cars parked outside the home. Two days after this Farouk Razzak met Adnan Darwiche at Ali Abdul Razzak’s home and Adnan Darwiche admitted to his involvement in the shooting.

43 Bilal Razzak travelled to Lebanon on 7 March 2001. He returned to Australia on 2 May 2001.

44 On 17 June 2001 two gunmen forced their way into the Razzak family home at 8/46 Sir Joseph Banks Street and shot Bilal Razzak in the stomach and the legs as he lay on the bed in his bedroom. Both gunmen wore masks. On the Crown case Adnan Darwiche was one of the gunmen.

45 In the period following the shooting it is the Crown case that Adnan Darwiche made an offer to pay compensation to Bilal Razzak in return for him and members of the Razzak family agreeing to let the matter rest. There is evidence from a number of sources, in addition to that of Khaled Taleb, of the brokering of this peace agreement and of the payment of an amount of compensation by Adnan Darwiche to Bilal Razzak.

46 Following the peace agreement there were no further episodes of violence between Adnan Darwiche and his associates and members of the Razzak family.

47 In late 2001 Adnan Darwiche’s father died. This had a significant impact on Adnan Darwiche who was distressed that his father had not attended the Hajj. He became religious and travelled overseas to attend the Hajj on two occasions. Khaled Taleb accompanied him on the first of these trips.

48 One matter of background that the Crown does not propose to lead is that in the period up to and including June 2001 Adnan Darwiche is said to have been engaged in the supply of drugs in south-western Sydney. He employed runners who supplied the drugs on his behalf. Initially Khaled Taleb was a runner. Later he came to be a partner. Khaled Taleb says that after Adnan Darwiche became religious he, Darwiche, gave up his interest in the drug business.

49 On 30 July 2003 Khaled Taleb was shot by two men wearing balaclavas. The incident occurred while he was visiting the halal butcher’s shop in Bankstown. He believed that his assailants were Gehad and Ziad Razzak. At the time of this shooting Adnan Darwiche was overseas. He spoke with Khaled Taleb by telephone the day after the shooting and said that he would return to Sydney to deal with it. Khaled Taleb was in hospital for over a fortnight receiving treatment for wounds to his leg and foot. During this time Ramzi Aouad and Adnan Darwiche visited him regularly. He discussed with Adnan Darwiche his belief that Gehad and Ziad Razzak were the shooters. He says that Adnan Darwiche said that he was going to make sure that it was them, and in the event it was “they’re gunna cop it, they’re dead…this is it I’m either gunna die or spend the rest of my life in gaol, it’s on” (at [176] of the Taleb statement). On a number of occasions according to Taleb both Adnan Darwiche and Ramzi Aouad said that, “this was it the Razzak’s and they were all dead” (at [178] of the Taleb statement).

50 About one week after Adnan Darwiche first spoke with Khaled Taleb at the hospital he told him that he had confirmed that Taleb’s assailants were Ziad and Gehad Razzak. Darwiche did not plan to take action against them while Taleb remained in hospital since he would be an easy target.

51 Two days before the Yanderra Street shooting Adnan Darwiche, Abdul Darwiche, Mohammed Touma and Ramzi Aouad visited Khaled Taleb. Darwiche said that they had found out that Gehad and Ziad Razzak were staying in Yanderra Street. He said, “this is what’s gunna happen. “Fidel” [Ramzi Aouad] can drive down the road and shoot at their house, when they come out to see what the fuck happened, me and Abdul will be standing on the corner with SKS’s and blast em” (at [185] of the Taleb statement).

52 Two nights later on 27 August, 66 shots were fired at premises at 106 Yanderra Street, Condell Park at which members of the Razzak family were present. 55 of the shots were fired from two SKS style rifles and 11 shots were fired into a car that was parked outside the premises from a .40 calibre weapon that is likely to have been a pistol. It is the Crown case that Adnan Darwiche was one of two gunmen who fired at Farouk Razzak while he was standing on the front verandah of the premises. Khaled Taleb says that Adnan Darwiche admitted to this offence, saying:

Ziggy [Ziad] came out on the porch and then Frank [Farouk] came out. Ziggy had a gun and was looking around. Me and Abdul blasted em, fuckin missed” (at [189] Taleb statement).

53 Jamal Razzak, the father of Bilal Razzak and the brother of Ali Abdul Razzak, says that he was assaulted by Adnan Darwiche, Abdul Darwiche and another man at around 11:30 on 29 August. They were travelling in a Holden Commodore being driven by Adnan Darwiche. The incident occurred in Bettina Court, Greenacre. Abdul Darwiche pointed an assault style rifle at him through the passenger window of the vehicle.

54 At 1:23 pm on 29 August 2003 Ali Abdul Razzak was shot and killed while seated in his car, which was parked in Koala Road, Lakemba, near the Lakemba Mosque. Witnesses observed a small black hatchback vehicle driving quickly southwest, along Koala Road. The vehicle stopped in front of Ali Abdul Razzak’s Toyota Camry. The driver and the passenger of the black hatchback were wearing balaclavas. The passenger got out of the car, holding a black pistol. He fired shots at the deceased and got back into the passenger seat of the vehicle, which drove off. 14 fired cartridge cases were found at the scene. Each was consistent with being a component of a .40 Smith & Wesson calibre cartridge. They had been discharged from the same unknown firearm. It is the Crown case that Adnan Darwiche was the shooter.

55 The evidence relied upon by the Crown in respect of this offence includes evidence of admissions made by the accused to Khaled Taleb and Mr X. Taleb says that he had purchased two stolen .40 calibre Glocks from his cousin, Ahmed Taleb. He gave one of them to Adnan Darwiche. At about 2:00 pm on 29 August 2003 Taleb was resting at his sister’s house when the accused came in, saying that he had to get rid of “this piece”. Taleb went outside and saw a black Holden Barina, which he describes as being a “hottie”. Gary Awad was the driver of the vehicle. Taleb and Darwiche both got into the vehicle. Mohammed Touma was also in the vehicle. They drove to Khaled Taleb’s uncle’s home. In the course of the trip Adnan Darwiche said:

Darwiche: I waited, when he got in the car I unloaded a magazine on him, I saw one bullet hit him just above his eyebrow I saw him take his last breath.
Taleb: Did anyone see you?
Darwiche: We bala’d up.

Adnan Darwiche kept repeating, “see what I done for you, see”. He handed Taleb the gun, a .40 calibre Glock, instructing him to get rid of it. Taleb cut the pistol up with a grinder, which was located in the garage in his uncle’s house. Later that day Ramzi Aouad and Taleb’s brother took the pieces of the gun and disposed of them.

56 The day after the murder of Ali Abdul Razzak around 55 shots were fired at Ramzi Aouad’s family home in Boundary Road, Liverpool. On the same day 65 shots were fired at Khaled Taleb’s home in Darling Street, Liverpool. Khaled Taleb discussed these incidents with Ramzi Aouad on 31 August or 1 September 2003. In this conversation Ramzi Aouad said to him:

I know it was that cunt Hussein [Fahda], Gehad, Ziggy and Mohammed for sure there’s no doubt about it. They’re going to cop it, they’re gunna cop it, they’re fuckin’ dead, my parents nearly got hit.

57 Khaled Taleb describes a further shooting that occurred in Riley Street, Liverpool about a week before the Lawford Street shooting. He was sitting on the front porch of Ramzi Aouad’s house. A blue Magna drove up the street with four men in it including Gehad, Ziad and Mohammed Razzak. Taleb sought out cover by manoeuvring himself on crutches to a position behind the front fence. At this time, Adnan Darwiche and Ramzi Aouad arrived in a silver RAV 4. Aouad pointed up the street, in the direction of the Magna. Taleb hid in the backyard of a neighbour’s house. He heard a number of shots. He did not see what happened. Later he spoke with Adnan Darwiche, who gave an account that he and Aouad had fired shots at the car containing members of the Razzak family and that they had returned the fire. The next day Khaled saw a bullet hole in the front windscreen of the silver RAV 4, which was parked at one of Ramzi Aouad’s relative’s homes in Liverpool.

58 A couple of days after the Riley Street shooting Adnan Darwiche told Taleb that Ziad, Gehad and Mohammed Razzak were staying at a house in Lawford Street, Greenacre. Taleb accompanied Adnan Darwiche on a drive past the Lawford Street premises.

59 The Lawford Street shooting occurred on 14 October 2003. In the early hours of the morning around 99 shots were fired at premises at 5 Lawford Street, Greenacre. Ziad Razzak and a young woman named Mervat Nemra were both fatally injured as the result of this attack.

60 The Crown case is that Adnan Darwiche, Naseam El Zeyat and Ramzi Aouad each fired shots into the Lawford Street premises and that Abass Osman drove them to and from the scene. A civilian witness observed three persons running from the scene immediately after the shooting.

61 Mr W gives an account of being present at Abass Osman’s home on the day of the incident and of overhearing a conversation between Adnan Darwiche and Osman, in which Osman was told that he was to be the driver. He says that he heard Adnan Darwiche tell Abass Osman, “I will see you at Erdt’s [Naseam El Zeyat] at two o’clock in the morning. At three o’clock there are going to be fireworks” (statement made 27 February 2004 at [27]).

62 Khaled Taleb gives evidence of the planning of the Lawford Street shooting. He was present with Adnan Darwiche, Ramzi Aouad and Mohammed Touma at a safe house on an occasion when the bullets were sprayed with gun oil and wiped clean of fingerprints and in order to remove any hairs. The guns that were to be used in the shooting were loaded and Darwiche collected a rocket launcher. Taleb gives evidence that the guns collected from the safe house consisted of two SKS’s, a Mach 10, a .45 calibre Glock and a 9 mm Glock. Taleb says that he raised with Adnan Darwiche the concern that the two SKS’s had been used in the Yanderra Street shooting. Darwiche responded that no one had got hit in the earlier shooting and that it would be alright to use them again.

63 The guns and the rocket launcher were taken to a house in Greenacre at which Naseam El Zeyat was residing. There was conversation inside those premises in the presence of Adnan Darwiche, Naseam El Zeyat, Abass Osman, Ahmad Awad, and Ramzi Aouad, concerning the use of the rocket launcher in the planned attack on the Lawford Street premises during which it was decided not to use it. Darwiche said that he would use the black SKS, Mohammed Touma said he would take the other SKS, Ramzi Aouad said that he would take the Mach 10 and Naseam El Zeyat took hold of the Glock.

64 Taleb remained in the El Zeyat house with Ahmad Awad. After the shooting Adnan Darwiche came into the house saying, “fucken oath we done it”. He changed his clothes and Ahmad Awad drove him away from the premises. Abass Osman dropped off Ramzi Aouad, Mohammed Touma and Naseam El Zeyat at the premises and left. The three men changed their clothes. They remained at the premises with Taleb and watched the television to see whether there was a report of the shooting on the morning news. Two or three hours later they saw a news report that one man was in a critical condition and that a girl had died. This prompted discussion between Taleb and Touma in the presence of the others, concerning the death of the woman. Touma said, “fuck the bitch, she shouldn’t have been there in the first place”.

65 Khaled Taleb met Adnan Darwiche and Ramzi Aouad in a park at Liverpool a few days after the Lawford Street shooting. Adnan Darwiche claimed to be confident that he was the one who had got Ziad Razzak. He said that the guns had been melted down and named two persons who had burnt the getaway car. During this conversation Darwiche threatened Taleb not to say anything and that, “if you think about turning dog against me I’ll kill your whole fucken family” (at [235] of the Taleb statement).

66 In addition to the evidence of Khaled Taleb as to admissions made by Adnan Darwiche concerning the Lawford Street shooting, the Crown also relies on the evidence of Mr X that Adnan Darwiche said, “I was telling Fidel and Erdt where to stand so they don’t shoot each other … don’t say that about the girl, God’s going to judge us for that, she was an accident but fuck the other dog” (statement 1 July 2004 at [73]).

67 In written submissions and in the summary of evidence admissible against the accused in the Chronology of Dispute the Crown contends that joinder is proper not only by reference to the evidence of motive and relationship but by the contention that much of this same body of evidence may be admitted in support of each count against Adnan Darwiche as tendency and/or coincidence evidence.

68 On the hearing of the application the Crown Prosecutor confined the basis upon which the Crown would rely on tendency and coincidence evidence. A number of the particulars identified in the notices served on Adnan Darwiche are not pressed. The Crown Prosecutor submits that the evidence of the shooting of members of the Razzak family may be admitted as evidencing Adnan Darwiche's tendency to shoot at members of the Razzak family.

69 The Crown contends that each of the four events is a related event for the purposes of s 98 and because of the improbability of them occurring coincidentally each is available in proof of the Crown case against Adnan Darwiche on each count.

70 The Crown acknowledges that its case for the reception of the evidence under s 98 is strongest in relation to the Yanderra Street shooting and the Lawford Street shooting. Each incident occurred at night-time, the same two SKS style rifles were used, a large number of shots were fired at the exterior of the respective premises and in each instance Ziad Razzak is said to have been one of the targets.

71 The Crown served notices under ss 97 and 98 on Ramzi Aouad. The notices particularised the tendency, both to have a particular state of mind and to act in a particular way, in the same terms as the notice served on Adnan Darwiche. The s 98 notice was in like terms to the s 98 notice served on Adnan Darwiche. As I understand it, the Crown's present position is not to rely on either tendency or coincidence reasoning in support of the case against Ramzi Aouad.

72 The present application is for joinder. I have not been asked to rule on the availability of the evidence led on one count, or any of the uncharged acts on which the Crown proposes to rely, as evidence of tendency or by way of the exclusion of coincidence. In the event that I was satisfied that evidence of each count was admissible in support of the remaining counts under ss 97 or 98 the case for joinder would be stronger, but I do not approach the application upon this basis.

73 Mr Doris, on Adnan Darwiche's behalf, opposed the joinder of the counts relating to the shooting of Bilal Razzak and the murder of Ali Abdul Razzak. He sought a separate trial in relation to the Lawford Street counts. He submitted that Adnan Darwiche should be tried separately from his co-accused, Abbas Osman, in relation to the latter offences. I will return to this.

74 As I have noted, a number of the counts in the indictment have been preferred ex officio. In addition to the witnesses called at the Basha hearing, to whom I have referred in paragraph [16] above, evidence was also taken on a Basha hearing from Khaled Taleb.

75 It has not been put that the relatively late inclusion of the ex officio counts has of itself created prejudice to the conduct of the accused's defence. No further witnesses were sought to be called at the Basha hearing in order to overcome any perceived disadvantage to the accused occasioned by the Director of Public Prosecution’s determination to prefer counts ex officio.

76 Mr Doris contended that no consistent motive emerges from the evidence relating to the four incidents. The shooting of Bilal Razzak is said to have arisen following an incident in which Adnan Darwiche's younger brother, Ali, assaulted Bilal Razzak; or alternatively, that it occurred in the context of rivalry over drug dealing in south western Sydney. Neither of these motives are said to have prompted the shooting at Yanderra Street more than two years later.

77 Mr Doris pointed to the evidence that by mid 2003, Adnan Darwiche had retired from the drug supply business, and that the motive for the Yanderra Street shooting was revenge over the shooting of Khaled Taleb.

78 In relation to the murder of Ali Abdul Razzak, Mr Doris pointed to the evidence that Adnan Darwiche entertained hostile feelings towards the deceased because of the latter's ill-treatment of his sister, Khadjie Darwiche. In Mr Doris' submission, the motive for Adnan Darwiche's involvement in the Lawford Street shooting was unclear.

79 The fact in issue in each of the counts charged against Adnan Darwiche is that he was the shooter. In Mr Doris's submission, the evidence that Adnan Darwiche had a motive to commit each offence, and the evidence touching on the relationship between him and Bilal, Ali Abdul, and Ziad Razzak, does not assist in the determination of whether any evidence of identification is correct. This evidence was said to not meaningfully assist in determining whether the jury might accept the evidence of Khaled Taleb and the other indemnified witnesses as establishing guilt beyond reasonable doubt. Against this was the prejudice which Mr Doris identified as the risk that the jury would be left with the impression that the authorities considered Adnan Darwiche to be guilty of this considerable raft of offences.

80 The evidence of Khaled Taleb is central to the Crown case. The Crown submits that in order to understand his evidence concerning the offences committed in 2003, it is necessary to know the history of hostility between Adnan Darwiche and Bilal Razzak dating back to events in 2001, and the peace deal that was brokered following the shooting of Bilal Razzak.

81 On the Crown case, while it is true to say that the motive for the Yanderra Street shooting was the belief that Ziad and Gehad Razzak had shot Khaled Taleb, the significance of that event was that it was a breach of the peace agreement.

82 It is the Crown case that Adnan Darwiche had abandoned his drug dealing activities in 2002 and in the first half of 2003. To confine the Crown in terms of an understanding of the motive and the relationship between Adnan Darwiche and members of the Razzak family to events in mid 2003 when dealing with the Yanderra Street shooting and the later offences, in the Crown's submission, would be to present an incomplete account. I accept that is so.

83 I consider that on the trial of Adnan Darwiche for the offences that occurred in 2003, it is in each case open to the Crown to lead evidence of the dispute between him and Bilal Razzak in 2001, the peace agreement and its subsequent breach.

84 The ballistics evidence linking the two SKS style rifles used in the Yanderra Street shooting with the two weapons used in the Lawford Street shooting, and linking the pistol used in the Sir Joseph Banks Street shooting to the Lawford Street shooting, is admissible in the Crown case on the Lawford Street counts.

85 I consider that the joinder of the counts charging the shooting of Bilal Razzak in an indictment charging Adnan Darwiche with the Yanderra Street shooting and the Lawford Street shooting to be proper, subject to a consideration of whether any counts should be separated in order to avoid prejudice to the accused.

86 I have considered whether the murder of Ali Abdul Razzak may be in a different category. There is evidence of an additional and discrete motive for that killing. There is no ballistics or other forensic evidence to link the commission of this offence to the other offences.

87 On the Crown case, it is open to consider the motive for the murder of Ali Abdul Razzak to be a combination of ill will arising out of the deceased's poor treatment of Khadjie Darwiche and the accused's hostility to members of the Razzak family following the breach of the peace agreement. There is evidence which, if accepted, points to the accused as claiming to have a motive to kill members of the Razzak family as at 27 August 2003.

88 It will be recalled that shortly after the shooting of Ali Abdul Razzak, Taleb says that Darwiche told him he had killed the deceased, and on the occasion of this admission, that Darwiche kept saying, "See what I done for you, see.”

89 Khaled Taleb asserts his belief that Darwiche's real motive was his hatred of Ali Abdul Razzak over his treatment of Khadjie. Be that as it may, in order to understand Taleb's evidence of the admission, it is necessary to know something of the background, including the initial dispute, the peace agreement, and its breach.

90 Khaled Taleb gives an account of meeting Adnan Darwiche and Ramzi Aouad in a park near Adnan Darwiche's unit on the night of Ziad Razzak's funeral. Adnan Darwiche challenged him, saying that Gehad Razzak had told someone that Taleb was speaking to the police. Darwiche exhibited anxiety that Taleb may be wearing a listening device. In the course of this meeting, Darwiche asked Taleb, "What did you kill Ali for?" and "Who done Greenacre?” Taleb admitted to the commission of both offences. He says that he did so because he understood that Darwiche was playing “mind games” with him, and pressing him to admit to the offences lest he was carrying a concealed listening device.

91 Khaled Taleb fled from New South Wales following this incident. On his account he feared that Adnan Darwiche and Ramzi Aouad would kill him.

92 Mr X gives an account of a conversation with Adnan Darwiche that took place in November 2003, some time after Khaled Taleb left the jurisdiction. In this conversation, Darwiche expressed concerns about whether Mr X and Mr Y could be trusted, in the context that both had been present during discussions on 30 October 2003 when Darwiche and his associates had discussed the murder of Ahmed Fahda.

93 In the course of the November discussion, Mr X says that Darwiche said to him:

Brother look, look at that dog Crazy [Khaled Taleb] half this drama is what they done to him and look, he ripped me and took off. I thought he was one of my closest brothers … he took off to Lebanon but he’ll be back. When he comes back I’m going to fuck him … X, don’t think that one day I just woke up and went crazy and started killing people. I went to a Sheik and told him everything that had happened from the day I paid them for that dog Bill (referring to Bilal Razzak), everything. They started this thing again. It was over that day I paid them that money. … Yeah it was sorted out in front of the Sheik, everything was sweet. When I went to the Hajj (referring to Mecca) they grew balls and wanted to be hard cunts, they went and shot Crazy. … They’re the dogs that started it, if it wasn’t for them none of this would have started.

94 It is to be anticipated that a substantial attack will be made on Khaled Taleb's credit. It is reasonable to anticipate that it will be put to Khaled Taleb that his detailed knowledge of the events charged against Adnan Darwiche derives from the fact that he was the shooter in each case.

95 On the trial of the Lawford Street counts, it is to be expected that Khaled Taleb will be cross-examined to prove his admission to have, "Done Greenacre. . . me and my Asian mates.”

96 On the trial of the count charging the murder of Ali Abdul Razzak, it is to be anticipated that Khaled Taleb will be cross-examined as to his admission, "I shot Ali, I did the shooting at Greenacre I did the lot".

97 The assessment of Taleb's explanation for the admissions that he made to Darwiche, and of Mr X's evidence of the things Darwiche said to him at the November meeting, seem to me to require an understanding of the whole context.

98 I have concluded that the murder of Ali Abdul Razzak is connected with the other offences with which Adnan Darwiche is charged, and that it is open to the Crown to lead evidence of the motive, namely the breaking of the peace agreement brokered after the shooting of Bilal Razzak.

99 The joinder in the one indictment of a count charging Adnan Darwiche with the murder of Ali Abdul Razzak, together with the other counts, is in my opinion proper, subject to a consideration of whether its inclusion would prejudice the fair trial of the accused.

100 I have given consideration to whether, in the event that the evidence of the Yanderra Street shooting is available in support of the Lawford Street counts, and vice versa upon tendency reasoning or the exclusion of coincidence reasoning under ss 97 and 98 of the Act, but not with respect to the murder of Ali Abdul Razzak, directions at the joint trial would involve undue complexity with the attendant risk of confusion. I have concluded that I should not refuse the Crown's application for this reason.

101 It is not clear that any of the evidence identified by the Crown will be available for use on the basis of tendency and/or coincidence reasoning. In the event that it is, I consider that directions (which may include written directions) clearly identifying the evidence that is available in support of each count, and the restrictions, if any, upon its use, can address this perceived concern adequately, and that I should approach the matter upon the basis that the jury would comply with them.

102 Given the Crown's substantial reliance upon an acceptance of Khaled Taleb - a person who on his own account was from time to time engaged in the distribution of drugs in south western Sydney, and who himself had poor relations with the Razzak family - I am not persuaded that the accused suffers prejudice by reason that Khaled Taleb says he has confessed to three murders, as distinct from one.

103 Mr Doris observed that he was not able to point to anything that might be characterised as lending support to Khaled Taleb's account in relation to any count. I did not understand him to submit that the Crown case on one count was relevantly different and stronger than on other counts such that there existed a risk that the jury would reason towards an acceptance of Taleb's evidence on the remaining counts.

104 In Mr Doris' submission, there remained what he described as the cumulative prejudice that flowed from his client being charged with so many offences. He submitted that there existed the risk that the jury would consider that with so much smoke, there must be fire, and accept the evidence of Khaled Taleb on that account. I do not consider that I should determine the application upon a view that the jury would, contrary to directions, reason in this way.

105 A pragmatic consideration that Mr Doris raised in opposition to the trial proceeding on the proposed indictment is the risk that it may be aborted as the result of some unanticipated difficulty relating to one of the counts. It seems to me that the greater the number of counts, the greater the risk of such an event. This consideration needs to be balanced against the practical considerations that favour joinder, given the need to lead much of the same evidence at each trial, and given the probability that a considerable amount of time at each trial would be occupied with a lengthy attack on the credit of Khaled Taleb canvassing the same issues. The separate trial of Adnan Darwiche for the murder of Ali Abdul Razzak and the Lawford Street counts would involve a lengthy and similar attack on the credit of Mr X. I consider the joinder of the counts against Adnan Darwiche is proper, and I have concluded that it does not occasion prejudice to his fair trial in respect of each count.

106 I turn now to the application made by Adnan Darwiche that his trial for the Lawford Street shooting proceed separately to the trial of his co-accused, Abbas Osman. This application may conveniently be dealt with together with the application made by Abbas Osman for a separate trial.

107 The Crown case in relation to the two Lawford Street counts is that the four accused were a party to a joint criminal enterprise. The starting point is that they should be tried jointly: Webb and Hay v R (1994) 181 CLR 41. The principles that are to be applied in determining whether to grant a separate trial are those enunciated by Hunt CJ at CL in Middis and which were approved in R v Baartman (unreported) NSW CCA 6 October 1994:

1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and
2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and
3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,
a separate trial will usually be ordered in relation to the charges against the applicant.

108 It falls to the applicant for a separate trial to establish that injustice would be occasioned by a joint trial. In support of his application Adnan Darwiche points to evidence that the Crown proposes to lead in its case against Abbas Osman, and which it does not tender in its case against him. Mr W says that prior to the shooting Abbas Osman drove him past the Lawford Street premises saying, "Just drive past, I don't want the Razzaks to recognise the car or me. That's not the way they are going to do it. I am going to be in the hotty waiting for them on Roberts Road. Eddie, Fidel and Erdt are going to run down, they are soldiers" (Statement 21 November 2004 at [9]).

109 Mr W gives evidence against Adnan Darwiche of statements made by the latter in a conversation with Abbas Osman, including that Abbas was to be the driver. It is to be anticipated that Adnan Darwiche will mount an attack on the credit of Mr W. It is also to be anticipated that Abbas Osman will challenge the evidence of Mr W.

110 The Crown case against each accused in relation to the Lawford Street count may be broadly described as being of the same character. It depends on an acceptance of the evidence of indemnified witnesses, who describe aspects of the planning of the offence and of various admissions said to have been made by the accused. The evidence against Adnan Darwiche is not significantly weaker than the case against his co-accused.

111 I do not consider that there is a risk that the jury may approach the matter on the basis that they do not accept Mr W's evidence in the case against Adnan Darwiche (taken with the other evidence) as establishing his guilt, but nonetheless reason to that conclusion, after taking into account (contrary to directions) Mr W's evidence of the things Osman said to him.

112 The jury will be directed as to the evidence that is available in relation to the case against each accused. I do not consider that prejudice that may not be cured by direction will flow to Adnan Darwiche by reason of the evidence admitted in the case against Abbas Osman of his conversation with Mr W.

113 Ms McSpedden submitted that the trial of Abbas Osman should proceed separately to the trial of Adnan Darwiche on counts 1 to 5 in the proposed indictment, and that he should be tried separately from Adnan Darwiche.

114 When the applications for separation first came on for hearing on 8 and 9 December 2005 the accused Osman was represented by Ms Francis of counsel. In her submission the first issue that it was necessary for me to determine with respect to the inclusion of counts against her client in the August indictment was whether the provisions of s 29(2) of the CPA had been met. It was submitted that the provisions of sub 2(c) did not permit the joinder of counts against Abbas Osman since the other counts in the indictment, even if forming part of a series of offences of the same or a similar character, were not charged against Abbas Osman.

115 Section 29 was inserted into the Criminal Procedure Act by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001. It provides as follows:

29 When more than one offence may be heard at the same time

(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:
(a) the accused person and the prosecutor consent,
(b) the offences arise out of the same set of circumstances,
(c) the offences form or are part of a series of offences of the same or a similar character.
(2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances:
(a) the accused persons and the prosecutor consent,
(b) the offences arise out of the same set of circumstances,
(c) the offences form or are part of a series of offences of the same or a similar character.
(3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

116 Ms Francis noted that the provisions of s 29 had been previously enacted in s 78A of the Justices Act 1902. In her submission the incorporation of the provision into Pt 3 of the CPA has effected a material change to the law with respect to the joinder of offences on indictment.

117 Section 78A was inserted into the Justices Act by the Justices (Amendment) Act 1987. The reason for its enactment appears to have been in order to overcome the requirement for the consent of one or more defendants, or for related charges against the one defendant, before they might be heard together by a magistrate. When the Bill was read for the second time in the Legislative Assembly the Attorney General said this:

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 the same set of circumstances or are, or form part of, a series of offences of the same or a similar character. Provision is made also to enable multiple related matters to be heard together where these criteria are not met but the prosecution and the defence both consent. In all of these circumstances the magistrate hearing the matters will retain a discretion to order that the charges be heard separately if he or she considers it is interests of justice to do so. Under the existing section 78A of the Justices Act charges involving joint defendants or related charges against a single defendant may be heard together only if both parties consent. It is therefore possible for a party to force a separate hearing for each matter merely by withholding consent, even though common sense would suggest that the matters be heard together. The result is a duplication of evidence, gross inconvenience and additional expense to witnesses, and the wasting of valuable court time.
By removing the prerequisite of consent the procedure in the Local Courts will be consistent with that adopted by the higher courts. In both the District Court and Supreme Court the judge has a discretion to hear charges at the same time, irrespective of the number of accused persons, and does not rely upon the consent of the accused or the prosecution. (Hansard, Proceedings of the Legislative Assembly, 11 November 1987, p 15833).

118 The Criminal Procedure Amendment (Justices and Local Courts) Act was introduced, together with the Justices Legislation Repeal and Amendment Act and the Crimes (Local Courts Appeal and Review) Act. This parcel of legislation effected a number of substantial changes to the operation of Local Courts. It is not clear that the inclusion of s 29 in Pt 3 of the CPA was intended to effect material change to the law with respect to the joinder of offences on indictment.

119 Section 23 of the Criminal Procedure Act provides inter alia that up to three counts may be inserted in the same indictment against the same person for distinct offences of the same kind committed against the same person. This provision was previously found in s 370 of the Crimes Act. It was considered by the Court of Criminal Appeal in R v Hass [1972] 1 NSWLR 589 (which is not reported on this point). In that case the Court observed:

Whilst the Indictment Act 1915 has not in substantial degree been adopted in New South Wales, the common law rule as applied in this State, that any number of counts may be included in the one indictment charging different felonies, was always subject to the power of the court to call upon the Crown Prosecutor to elect upon which counts he would proceed. This is confirmed by s 365(2) of the Crimes Act 1900 [now s 21(2) of the Criminal Procedure Act] … s 365(2) is in similar terms to s 5(3) of the English Indictments Act 1915. … it is upon this background that s 370 [now s 23 of the Criminal Procedure Act] must be read. Its effect is that the Crown may not be put to its election, or a separate trial be ordered, if the indictment contains three charges of distinct offences of the same kind committed against the same person within a period of six months, with the proviso that counts alternative to those preferred may also be included.

The Court rejected a contention that the inclusion of five counts in the one indictment was contrary to either the common law or to the provisions of s370 of the Crimes Act .

120 It is not necessary for me to determine what, if any, change to the law relating to the joinder of offences in the indictment has been effected by the introduction of s 29 into Pt 3 of the CPA, since I am satisfied that the offences form or are part of a series of offences of the same or of a similar character. I do not consider the circumstance that the accused Abbas Osman is not charged with each of the offences in the indictment forming part of that series to mean that the provisions of s 29(2)(c) are not met.

121 Ms McSpedden placed principal reliance in her application on considerations of prejudice. In her submission the proposed indictment exposes her client to prejudice that is analogous to that with which the Court was concerned in R v Sheikh [2002] NSW CCA 136. In that case the appellant was charged with offences said to have occurred at the commencement of a series of offences charged in the indictment. Ms McSpedden relied on a passage in the judgment of Justice Ipp (with whose judgment I concurred at [19]):

The alleged offenders are all, or all but one, from the same ethnic group. The details of the offences are likely to arouse extremely hostile feelings against these persons. The common ethnicity of the offenders could well give rise to generalised feelings of disgust and anger. It is possible that the jury may be influenced by such feelings, brought about by the conduct of all the offenders, when considering their verdict in respect of the counts alleged against Sheikh.

122 I do not consider that the issues with which the Court was concerned in Sheikh are raised in like degree in this application. The significance of the common ethnicity of the accused in the Sheikh matter derived in no small part from the complainant's evidence which included that during the course of a series of humiliating sexual offences she had been subjected to racial taunts. The Lawford Street shooting, on the Crown case, was carried out with the intention of killing members of the Razzak family who happened to be persons of the same ethnic background as the accused. It is no part of the Crown case that the motive for the offences was racially based.

123 Ms McSpedden complains that her client will have to sit through a lengthy trial at which the focus will be on events with which he has no connection. In her submission this is oppressive. Mr Stanton on behalf of Nasaem El-Zayet made a like submission. On behalf of both Abbas Osman and Nasaem El-Zayet it is noted that none of the evidence relating to motive or relationship has any relevance to the case that the Crown makes against him. In addition each accused complains that the evidence against him is substantially weaker than that which the Crown anticipates leading against Adnan Darwiche and Ramzi Aouad. Each is concerned lest the relatively weak Crown case against him gains strength by the jury impermissibly having recourse to material that is not admissible against him.

124 It does not seem to me that the case against any accused in relation to the Lawford Street count is significantly weaker than, and different to, that which is admissible against the other accused. I do not consider that there is a risk that the jury will reason towards a finding of guilt in the case against Nasaem El-Zayet or Abbas Osman on the basis of "guilt by association" with Adnan Darwiche who is charged with other serious offences in counts 1 to 5 of the indictment. The evidence admissible against each accused can be isolated and appropriate directions given to the jury so as to ensure the fair trial of the accused in each case.

125 Mr Whitehead submitted that the Lawford Street counts should be separated from counts 1 to 5 in the indictment. He did not submit that there was a basis for the separate trial of his client from his co-offenders in relation to the Lawford Street counts. The matter upon which principal reliance was placed was that Mr X, in a statement made on 1 July 2004, says that Ramzi Aouad said in the course of a discussion after the arrest of Adnan and Abdul Darwiche: "Ahmed's half half, Greenacre's half half, I got the cunt at the mosque" ([185]).

126 Mr Whitehead anticipates that at a trial on the proposed indictment Mr X will be cross-examined on Adnan Darwiche's behalf to establish the making of that representation. The second matter that Mr Whitehead identified as likely to occasion prejudice to his client on a joint trial is that Khaled Taleb is likely to be cross-examined about his possession of two Glock pistols, one of which remains unaccounted for on his version of events. In light of evidence that Khaled Taleb and Ramzi Aouad were accustomed to cleaning their pistols together Mr Whitehead anticipates cross-examination of Mr Taleb on this topic may lead to material prejudicial to his client. It was not clear that this matter may not arise in any event were the Lawford Street counts separated from the other counts against Adnan Darwiche.

127 Principal concern was expressed about the likelihood at a joint trial of evidence emerging that Ramzi Aouad had confessed to the murder of Ali Abdul Razzak. It is reasonable to anticipate that at the joint trial on the proposed indictment the conversation between Ramzi Aouad and Tony Mr X in which the former is said to have claimed to have been the killer of Ali Abdul Razzak will emerge.

128 I have concluded that this circumstance, in the context of the issues raised by the Crown case against Ramzi Aouad, will not occasion prejudice to him such as to require that the Lawford Street counts proceed separately to the other counts in the indictment.

129 The Crown case against Ramzi Aouad depends in part on an acceptance that he made admissions to Mr X of involvement in the Lawford Street shooting and, in the event the jury is satisfied that he did, that those admissions are truthful. The fact that there is a likelihood that Mr X will give evidence that Ramzi Aouad also admitted to being the killer of Ali Abdul Razzak in circumstances in which the Crown disavows that he is, does not seem to me to be productive of prejudice on his trial for the Lawford Street counts. The evidence underlines the need to be satisfied not only that admissions were made but that they are truthful. It seems to me that I should not proceed upon the basis that the jury would reason that Ramzi Aouad was guilty of the Lawford Street killings because (contrary to the Crown case and directions) they were satisfied that he killed Ali Abdul Razzak.

130 Again it is necessary to proceed upon the basis that the evidence that is available against each accused will be isolated for the jury’s attention and that the jury will act in accordance with directions.

131 Neither of the accused who claimed orders that the proceedings be remitted to the Local Court for a committal hearing on the Lawford Street counts pressed for that relief. It was accepted that I do not have the power to make such an order.

132 It was not submitted on behalf of any of the accused that he faced forensic prejudice by reason that the Lawford Street counts were proceeding ex officio. No application was made for the examination of any further witnesses on a Basha hearing to overcome any disadvantage brought about by reason of the Director's decision to prefer the Lawford Street counts ex officio.

133 For these reasons, I make the following orders: I dismiss the motion filed by Adnan Darwiche on 9 November 2005; I dismiss the motion filed by or on behalf Nasaem El-Zayet on 6 December 2005; I dismiss the motion filed on behalf of Abbas Osman on 11 November 2005; and I dismiss the motion filed on behalf of Ramzi Aouad on 7 December 2005.

134 I grant leave to the Crown pursuant to s 20(1) of the Criminal Procedure Act 1989 to substitute the proposed indictment for the indictment upon which each accused was previously arraigned.

oOo