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Supreme Court 30 May 2006

Regina v Darwiche & Ors

[2006] NSWSC 929

Assault & violenceHomicideFirearms & weaponsPublic order & justice offences
S 20 CRIMINAL PROCEDURE ACT 1986 JOINDER OF OFFENCES AND OFFENDERS

Citation: Regina v Darwiche & Ors [2006] NSWSC 929
Court: Supreme Court of New South Wales, Common Law Division
Date: 30 May 2006
Judge(s): Bell J

Background

Four accused, Adnan Darwiche, Nasaem El-Zayet, Ramzi Aouad, and Abbas Osman, were charged across a series of serious offences arising from multiple shooting incidents in Sydney's south-west between 2001 and 2003. The original indictment, on which each accused was arraigned in August 2005, contained ten counts including murder, attempted murder, firearms offences, soliciting murder, and being an accessory after the fact. Several counts were preferred against the accused by way of ex-officio indictment, meaning they were filed directly without a preceding committal hearing on those charges.

As the proceedings developed, the Crown sought to add further ex-officio counts, including charges related to the shooting of Bilal Razzak in June 2001 and the murder of Ali Abdul Razzak in August 2003. A separate trial on counts relating to the murder of Ahmed Fahda was conducted and concluded in May 2006 before the remaining matters were resolved. The Crown then applied under section 20(1) of the Criminal Procedure Act 1986 for leave to substitute a new indictment joining the additional counts.

Each of the four accused filed motions seeking separate trials on various counts, or orders severing certain counts from the indictment. They argued, in different combinations, that joinder of the counts would cause unfair prejudice to their individual trials.

  • Whether the Crown should be granted leave under section 20(1) of the Criminal Procedure Act 1986 to substitute a new indictment joining additional ex-officio counts against the accused
  • Whether offences arising from separate shooting incidents were properly joined as a series of offences of a similar character, satisfying the joinder requirements
  • Whether any accused would suffer genuine forensic prejudice from a joint trial on the counts as joined, such that separate trials should be ordered
  • Whether certain accused were entitled to a committal hearing in the Local Court before facing the ex-officio counts
  • Whether a Basha-style inquiry (permitting cross-examination of Crown witnesses prior to trial) was required to remedy any disadvantage caused by the ex-officio counts

Decision

Bell J dismissed all four motions for separation of counts and granted the Crown's application to substitute the proposed indictment. Her Honour was satisfied that the offences charged in the proposed indictment formed part of a series of offences of a similar character for the purposes of the joinder provisions, given their connection through a pattern of targeted shootings involving related parties over a defined period.

On the question of prejudice, Bell J considered each accused's circumstances individually. Her Honour accepted that, as a general principle, a joint trial does not become impermissible simply because the evidence against different accused varies in weight or character. The court was satisfied that appropriate jury directions, combined with the careful isolation of the evidence relevant to each accused, would be sufficient to guard against the risk of unfair prejudice in each case.

A specific issue arose in relation to Ramzi Aouad, where there was a prospect that a Crown witness would give evidence attributing to him admissions of involvement in the murder of Ali Abdul Razzak, a killing the Crown itself did not attribute to him. Bell J concluded this did not generate the kind of prejudice requiring separate trials, noting that it reinforced rather than undermined the need for the jury to scrutinise carefully whether any admissions were both made and truthful. Her Honour proceeded on the basis that the jury would follow directions.

On the committal hearing point, the accused who had sought orders remitting proceedings to the Local Court for a committal on the Lawford Street counts ultimately did not press that relief, accepting that the court lacked power to make such an order. No accused sought any further Basha examination in relation to the ex-officio counts.

Orders Made

  • The motion filed by Adnan Darwiche on 9 November 2005 was dismissed
  • The motion filed by or on behalf of Nasaem El-Zayet on 6 December 2005 was dismissed
  • The motion filed on behalf of Abbas Osman on 11 November 2005 was dismissed
  • The motion filed on behalf of Ramzi Aouad on 7 December 2005 was dismissed
  • Leave was granted to the Crown pursuant to section 20(1) of the Criminal Procedure Act 1989 to substitute the proposed indictment for the indictment upon which each accused was previously arraigned

Key Takeaways

  • Under the joinder provisions of the Criminal Procedure Act 1986, offences arising from separate incidents may be joined in a single indictment where they form part of a series of offences of a similar character, even when the evidence against each co-accused differs in nature and weight.
  • A joint trial does not become impermissible merely because some evidence admitted in the proceedings is more directly relevant to one accused than another; the court's assessment focuses on whether there is genuine forensic prejudice that jury directions cannot adequately address.
  • Where a Crown witness may give evidence attributing to an accused conduct that the Crown itself does not allege against that accused at trial, the court found this did not automatically require severance, provided the jury could be directed appropriately to treat the evidence with care.
  • The Supreme Court confirmed it lacks power to remit proceedings to the Local Court to afford accused persons a committal hearing on ex-officio counts, a position that was ultimately conceded by the accused who had sought such relief.
  • Granting leave to substitute an indictment under section 20(1) of the Criminal Procedure Act 1986 remains a matter for judicial discretion, assessed against the overall fairness of the trial rather than by isolated examination of any single count or accused.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), particularly section 20(1)
- Criminal Procedure Act 1989 (NSW)
- Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW)
- Evidence Act 1995 (NSW)
- Justices Act 1902 (NSW)
- Justices (Amendment) Act 1987 (NSW)

Cases:
- R v Baartman (unreported, NSW Court of Criminal Appeal, 6 October 1994)
- R v Basha (1989) 39 A Crim R 337
- R v Hass [1972] 1 NSWLR 589
- R v Sheikh [2002] NSWCCA 136
- R v Toki [2000] NSWCCA 999; 116 A Crim R
- Webb and Hay v R (1994) 181 CLR 41