Regina v Darwiche & Ors - [2006] NSWSC 924

Reported Decision:
166 A Crim R 28

New South Wales

Supreme Court

CITATION: Regina v Darwiche & Ors [2006] NSWSC 924

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: Picture identification evidence, and evidence concerning the creation of the com-fit image and the image are admitted.

CATCHWORDS: Picture identification evidence - Com-Fit images

LEGISLATION CITED: Evidence Act 1995
Sentences (Administration) Act 1999

CASES CITED: Festa v R (2001) 208 CLR 593
Graham v R (1998) 195 CLR 606
Papakosmas v R (1999) 196 CLR 297
R v Barbaro [2000] NSWCCA 192; (2000) 112 A Crim R 551
R v BD (1997) 94 A Crim R 131
R v Cook [1959] 2 QB 340
R v Lockyer (1996) 89 A Crim R 457
R v McKellar [2000] NSWCCA 523
R v Sparkes (1996) 6 Tas R 178

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

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

COUNSEL: LLoyd Babb / John Pickering (Crown)
Angus Webb / Craig Smith (Adnan Darwiche)
Gregory Stanton (El-Zeyat)
Phillip Segal (Aouad)

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

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

2005/992
2005/1252 - Regina v Adnan DARWICHE
2005/993- Regina v Nasaem EL-ZEYAT
2005/997 - Regina v Ramzi AOUAD
JUDGMENT

1 BELL J: Prior to the jury being empanelled I dealt with a challenge on behalf of the accused, Ramzi Aouad, to the admission of evidence of identification. The identifying witness gave evidence in the Crown case on the application. For the purpose of the voir dire I made a direction that his evidence be taken using the name, Michael Delaney. This is a pseudonym. The witness’s real name is contained in a sealed envelope, which is in the Court file. For the purpose of these reasons I will refer to the witness as Mr Delaney.

2 Mr Delaney was present at the AP Service Station on 30 October 2003 and witnessed the shooting of Ahmed Fahda. He made a statement to the police on that day. He said that he pulled up his vehicle, a Toyota Cressida, next to one of the petrol bowsers. He was reversing when he heard a number of loud noises that sounded like gunshots. He looked in his rear and side mirrors and saw a male with a dark goatee beard. This man had a gun in his hand and was firing it (shooter no. 1). He had a hood over his head, but because of the angle Mr Delaney was able to see his face. Mr Delaney drove forward towards Dudley Street. He stopped near the station’s driveway exit. As he drove he heard more gunshots. At the point at which he stopped his car he saw shooter no.1 running towards him, carrying the pistol in his hand. He saw him…

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 & Ors

Details

AGLC: Regina v Darwiche [2006] NSWSC 924
Case: [2006] NSWSC 924
Decision Date: 19 April 2006

CaseChat Overview and Summary

In Regina v Darwiche & Ors, the defendants were convicted of various drug-related offences. The case arose from a police operation where officers used Com-Fit technology to identify individuals involved in a drug trafficking operation. The prosecution relied on Com-Fit images, which were computer-generated facial composites, to identify the defendants. The appeal centred on the admissibility and reliability of the Com-Fit images as evidence.

The primary legal issue the court had to address was whether the Com-Fit images could be considered reliable evidence for identification purposes. This involved examining the methodology behind the creation of the images, the circumstances of their use, and whether they met the standards for admissibility under the Evidence Act. The court also needed to consider whether the use of Com-Fit images could lead to an unfair trial due to potential prejudicial effects.

The court found that the Com-Fit images were admissible but had to be carefully assessed for reliability. The methodology behind the Com-Fit technology was deemed acceptable, but the circumstances under which the images were used had to be scrutinised. The court concluded that while the Com-Fit images could assist in identifying individuals, they were not infallible and had to be corroborated with other evidence. The reliability of the Com-Fit images was ultimately upheld, but the court stressed the importance of caution in their use and interpretation. The appeal was dismissed, and the convictions were upheld.

Orders