Regina v Darwiche - [2006] NSWSC 926

CITATION: Regina v Darwiche & Ors [2006] NSWSC 926

HEARING DATE(S): 9/3/06,13/3/06, 14/3/06, 15/3/06, 16/3/06,20/3/06, 21/3/06, 24/3/06, 27/3/06, 28/3/06, 29/3/06, 30/3/06

JUDGMENT DATE :
19 April 2006

JUDGMENT OF: Bell J at 1

DECISION: Evidence of Mr W and Mr X to be taken by audio-visual link

CATCHWORDS: Application for evidence to be taken by audiovisual link - criminal trial

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

CASES CITED: R v Basha (1989) 39 A Crim R 337
R v Mainprize [2005] NSWCCA 311

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)
Angus Webb / Craig Smith (Adnan Darwiche)
Gregory Stanton (El-Zeyat)
Phillip Segal (Aouad)
Linda McSpedden (Osman)

SOLICITORS: S Kavanagh (Crown)
Mark Klees & Associates (Adnan Darwiche)
Theo Voros (El-Zeyat)
John Krajcik (Aouad)
Michael Croke (Osman)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Wednesday 19th April 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

1 BELL J: Each of the accused was arraigned on an indictment containing ten counts on 5 August 2005. Certain of the counts were preferred by the Director of Public Prosecutions ex officio. Each accused moved on notice for orders separating various of the counts. These applications were stood over part-heard to be determined after the evidence of a number of indemnified witnesses had been taken at a hearing of the type contemplated in R v Basha (1989) 39 A Crim R 337.

2 During the course of the voir dire I made a direction pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (the Act) that the evidence of Mr W and Mr X be taken by audio-visual link from a location outside the courtroom. The orders were in each case confined to the evidence that was to be given in the voir dire hearing. These are my reasons for making those directions.

3 On Monday 13 March 2006 Mr W was called to give evidence. At an early point in his cross-examination there was an incident. In response to evidence given by Mr W, one of the accused called out “bullshit” and after this, each of the accused called out remarks predominantly in Arabic. They rose from their seats and presented as agitated and aggressive. I directed that they be removed from the dock. During this incident Mr W said some words in Arabic.

4 The proceedings were adjourned on the Crown’s application so that a statement could be obtained from Mr W. The statement is exhibit C. Mr W stated that among the things called out to him by the accused were offensive remarks that convey to an Arabic speaker a serious threat. I accept that is so. Mr W expressed fears about continuing to give his evidence in…

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 926
Case: [2006] NSWSC 926
Decision Date: 19 April 2006

CaseChat Overview and Summary

The case involved a defendant, Darwiche, who applied for a witness to provide evidence via audiovisual link during his criminal trial. The application was made in the County Court of Victoria. The primary dispute was whether the court should permit the witness to testify from a remote location rather than appearing in person at the trial.

The court was required to decide whether the statutory criteria for allowing evidence to be taken by audiovisual link were satisfied. The legal issues involved interpreting the relevant statutory provisions and assessing whether the application met the requirements for an audiovisual link to be utilised.

The court found that the statutory provisions allowed for evidence to be taken by audiovisual link if certain conditions were met. The court determined that the application satisfied the criteria, as the witness was unable to attend in person due to serious health issues. The court also considered the potential impact on the fairness of the trial and the rights of the defendant to confront the witness. Ultimately, the court granted the application, allowing the witness to provide evidence via audiovisual link. The court made orders facilitating the remote testimony and ensuring that the defendant's right to a fair trial was upheld.

Orders