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Court of Criminal Appeal 8 April 2011

Aouad and El-Zeyat v R

[2011] NSWCCA 61

Also reported as (2011) 207 A Crim R 411
Homicide
CRIMINAL LAW EVIDENCE OF COMFIT IDENTIFICATION FRESH EVIDENCE

Citation: Aouad and El-Zeyat v R [2011] NSWCCA 61
Court: Court of Criminal Appeal, New South Wales
Date: 8 April 2011
Judges: McClellan CJ at CL, James J, Johnson J

Background

Two appellants were convicted by a jury in 2006 of the murder of Ahmed Fahda, who was shot at a Punchbowl service station on 30 October 2003. The Crown alleged the appellants were the two gunmen who emerged from a Commodore vehicle and fired multiple shots into the deceased at close range.

The Crown case relied heavily on the evidence of several witnesses, including Bassam Said (a man present at the shooting) and two brothers, Wahib and Haissam Hannouf. Each of these witnesses had received indemnities or benefits from the prosecution in exchange for their cooperation. A third co-accused, charged as an accessory, was acquitted.

On appeal, the appellants challenged their convictions on multiple grounds, including a misdirection to the jury about how to treat the evidence of indemnified witnesses, and the prosecution's failure to disclose material relevant to the credibility of a key Crown witness.

  • Whether the trial judge erred in directing the jury that it could treat the evidence of one indemnified witness as independent support for the evidence of another indemnified witness
  • Whether there was a failure by the prosecution to disclose to the defence material bearing on the credibility of a Crown witness
  • Whether fresh evidence, not available at trial, affected the safety of the convictions
  • Whether leave should be granted to rely on an additional ground of appeal based on further proposed fresh evidence

Decision

Jury direction on indemnified witnesses: The Court found that the trial judge's direction was erroneous. The direction permitted the jury to treat the evidence of one indemnified witness as independent corroboration for another indemnified witness. Because these witnesses had communicated with each other while in custody and had received similar benefits for cooperating with the prosecution, their evidence could not properly be treated as mutually independent support. This misdirection was a ground for allowing the appeal.

Non-disclosure by the prosecution: Fresh evidence emerged after the trial in the form of a statement by Sheikh Alhilali, who gave evidence that Bassam Said had told him in July 2004 that he had not actually seen who the shooters were and had been pressured into identifying the appellants. The prosecution had also failed to provide the defence with an investigation note made by a detective that was relevant to this issue. The Court found that this non-disclosure undermined the fairness of the trial and constituted a further ground for allowing the appeal.

Fresh evidence: The evidence from Sheikh Alhilali was accepted as fresh and credible. The Court held it was not available at trial and could not have been obtained with reasonable diligence. Combined with the investigation note, this evidence was material to the credibility of the Crown's central witness, Bassam Said, and was sufficient to warrant quashing the convictions.

Additional proposed fresh evidence: The appellants also sought leave to rely on an additional ground based on an affidavit from another person concerning alleged communications between Bassam Said and the Hannouf brothers. The Court declined to grant leave on this ground. Because the earlier grounds were already sufficient to order a new trial, it was unnecessary to resolve the contested questions about whether this further evidence was genuinely fresh or capable of belief.

Orders Made

  • Each appellant's appeal against conviction allowed
  • The conviction of each appellant quashed
  • A new trial ordered for each appellant

Key Takeaways

  • A jury direction that one indemnified witness can provide independent support for another indemnified witness is legally erroneous where those witnesses have been in contact with each other and have received comparable benefits from the prosecution for cooperating.
  • The Court of Criminal Appeal confirmed that the prosecution's failure to disclose material relevant to a Crown witness's credibility can render a conviction unsafe, even where that material surfaces only after trial through fresh evidence.
  • Fresh evidence will be received on appeal where it was not available at trial, could not have been obtained with reasonable diligence, and is capable of belief; here, the Sheikh's account of what Bassam Said told him met those requirements.
  • Where existing grounds of appeal already justify quashing convictions and ordering a new trial, the court need not determine every contested question about additional proposed fresh evidence.
  • Indemnified witnesses whose evidence is central to a Crown case require careful judicial direction; the mutual independence of their accounts is a prerequisite before one can properly be used to shore up another.

Legislation and Cases Referenced

Legislation:
- Evidence Act (NSW), ss 38, 59, 66(2), 106, 114, 115(5), 137, 164, 165
- Evidence Act (Cth)
- Criminal Appeal Rules, r 4
- Criminal Appeal Act, s 6(1)
- Customs Act
- Listening Devices Act

Cases:
- Pollitt v The Queen (1991-1992) 174 CLR 558
- R v Chen & Ors (2002) 130 A Crim R 300
- R v Ngo [2003] NSWCCA 82
- Conway v The Queen (2001) 209 CLR 203
- Kanaan & Ors v R [2006] NSWCCA 109
- R v Darwiche & Ors (2006) 166 A Crim R 28
- Graham v The Queen (1998) 195 CLR 666
- R v Barbaro (2000) 112 A Crim R 55
- R v El-Hayek [2004] NSWCCA 25
- R v Abou-Chabake (2004) 149 A Crim R 417
- R v Reardon (2004) 60 NSWLR 454
- Cornwell v R [2010] NSWCCA 59
- Grey v The Queen (2000) 201 CLR 414
- Wilde v The Queen (1988) 164 CLR 365
- Weiss v The Queen (2005) 224 CLR 300