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 5 – 7 charged each of the accused…

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 929
Case: [2006] NSWSC 929
Decision Date: 30 May 2006

CaseChat Overview and Summary

The matter of Regina v Darwiche involved an application for leave to substitute an indictment, which was considered by the court. The defendant, Darwiche, faced charges relating to a series of offences of a similar character. The application sought to join multiple offences and offenders in one indictment. The crux of the legal dispute was whether such joinder was permissible under the relevant statutory provisions, specifically section 20 of the Criminal Procedure Act 1986.

The court needed to determine if the application for leave to substitute an indictment, seeking to join multiple offences and offenders, complied with the legal requirements set out in the Act. A key consideration was whether the offences were part of a series of offences of a similar character, which would make them suitable for joinder. The court examined the nature and circumstances of the offences, including their temporal proximity and the extent to which they shared common characteristics.

The court concluded that the offences in question did indeed form part of a series of offences of a similar character, thereby satisfying the criteria for joinder under section 20 of the Act. The offences were closely related in terms of time, method, and nature, which supported the joinder. Consequently, the court granted the application for leave to substitute the indictment, allowing the defendant to be charged with the multiple offences in a single indictment. This decision facilitated a more efficient and consolidated trial process.

Orders