Citation: Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
Court: NSW Court of Criminal Appeal
Date: 8 April 2011
Judges: McClellan CJ at CL, James J, Johnson J (judgment delivered by Johnson J, with whom the other judges agreed)
Background
Four appellants were convicted following a jury trial before Bell J in 2006 arising from a violent feud between two groups in south-western Sydney. The feud involved members of the Darwiche and Razzak families, rooted in a cannabis supply dispute from around 2000 to 2001. The prosecution alleged a series of firearm attacks as part of that feud, culminating in a shooting at a suburban house in Greenacre on 14 October 2003, in which two occupants, Ziad Razzak and Mervat Nemra, were killed.
All four appellants were convicted of both murders. One appellant (Darwiche) was additionally convicted at the same joint trial of two earlier shooting offences: maliciously discharging a loaded firearm with intent to cause grievous bodily harm (the Yanderra Street shooting, 2001) and shooting at a person with intent to murder (the Condell Park shooting, 2003). The jury could not agree on a further murder count against Darwiche and was discharged on that count.
Bell J sentenced three of the four appellants to life imprisonment for the two murders. The fourth appellant (Osman) received concurrent sentences of 27 years, with non-parole periods of 22 years. The appellants challenged their convictions on a range of grounds, including prejudice from the joint trial, the use of indemnified witnesses, alleged abuse of process, various trial errors, and applications to rely on fresh evidence filed after the appeal hearing concluded.
Legal Issues
- Whether the joint trial of all four appellants for the Lawford Street murders, and the inclusion of Darwiche's earlier shooting charges in the same trial, caused unfair prejudice amounting to a miscarriage of justice.
- Whether the trial judge erred in directing the jury that the evidence of one indemnified witness could support the evidence of another indemnified witness.
- Whether the prosecution's reliance on indemnified witnesses who received benefits constituted an abuse of process warranting a stay.
- Whether various trial rulings and directions constituted error, including directions on motive, identification evidence, witness credibility, and the circumstances in which part of the summing-up proceeded without defence counsel present.
- Whether Darwiche and El-Zeyat should be granted leave, after the appeal hearing and while judgment was reserved, to add further grounds of appeal based on alleged fresh evidence contained in affidavits filed post-hearing.
Decision
The Court of Criminal Appeal dismissed all grounds advanced at the hearing. Johnson J (with the other judges agreeing) found no error in the decision to hold a joint trial, concluding that the charges were appropriately joined given the alleged common factual background of the feud. The trial judge had given appropriate directions to the jury about the use of evidence against each appellant individually, and the jury was found to have reached its verdicts impartially and in accordance with those directions.
On the abuse of process ground raised by Darwiche, the Court noted that no application for a stay had been made at trial on that basis. In any event, the Court held there was no proper basis for such a stay: assessing the credibility and reliability of indemnified witnesses is a jury function, and the full circumstances of the indemnities and benefits provided to those witnesses were placed before the jury. The direction that one indemnified witness's evidence could provide support for another's was also upheld as correct in law.
The various other trial grounds, including challenges to jury directions on motive and identification, the admission of certain evidence, the refusal to discharge the jury, alleged deficiencies in the summing-up, and the continuation of part of the summing-up while Darwiche's counsel was temporarily absent due to illness, were each examined and rejected. The Court found no error warranting intervention and no miscarriage of justice on any of these points.
On the post-hearing applications, Darwiche and El-Zeyat sought leave to add further grounds of appeal based on three sets of affidavit evidence said to constitute fresh evidence. The Court applied the applicable test requiring the evidence to be fresh, credible, and of a kind likely to cause the jury to entertain a reasonable doubt about guilt. Each proposed ground was refused. The Court found the affidavit material did not satisfy the cumulative requirements of that test, and declined leave having regard both to the lack of merit and to the time and circumstances in which the applications were made. The Court noted that Part 7 of the Crimes (Appeal and Review) Act 2001 remains available to convicted persons who later identify material giving rise to a genuine doubt as to guilt.
Orders Made
- Extension of time to appeal granted to Darwiche and Osman.
- Leave refused to Darwiche to add Proposed Grounds 11, 12, and 13.
- Leave refused to El-Zeyat to add Proposed Grounds 7 and 8.
- All four appeals against conviction dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that a joint trial involving multiple accused and multiple charges is not rendered unfair merely because different appellants face different counts, provided the jury receives appropriate directions about the limited use of evidence against each accused.
- Where no stay application was made at trial, an abuse of process argument based on the prosecution's reliance on indemnified witnesses faces a high threshold on appeal; the assessment of such witnesses' credibility and reliability is a matter for the jury, provided the full circumstances of any inducements are disclosed.
- The direction that one indemnified witness's evidence may provide support for another's was upheld as legally sound in the context of this trial.
- Applications to add fresh evidence grounds after an appeal hearing but before judgment is delivered require the proposed evidence to satisfy three cumulative tests: it must be fresh, credible, and of a character that would likely cause a reasonable jury to doubt the accused's guilt. Failure on any one of those requirements is fatal to the application.
- In dismissing all grounds, the Court expressly noted that the statutory review mechanism under Part 7 of the Crimes (Appeal and Review) Act 2001 remains available to any convicted person who later identifies reliable material giving rise to a genuine doubt or question as to guilt.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7
- Criminal Appeal Rules
Cases:
- R v Darwiche and Ors [2006] NSWSC 1167
- R v Lawrence (1980) 1 NSWLR 122
- R v Gregory [2002] NSWCCA 199
- R v Unger [1977] 2 NSWLR
- McCall v R [2010] NSWCCA 174
- R v Moti [2009] QSC 407; 235 FLR 320; [2010] QCA 178; 240 FLR 218
- Rozenes v Beljajev [1995] 1 VR 533
- R v Abusafiah (1991) 24 NSWLR 531
- R v Fuge [2001] NSWCCA 208; 123 A Crim R 310
- Ilioski v R [2006] NSWCCA 164
- Fingleton v The Queen [2005] HCA 34; 227 CLR 166
- Jago v District Court of NSW [1989] HCA 46; 168 CLR 23
- R v WRC [2003] NSWCCA 394; 59 NSWLR 273
- Dupas v The Queen [2010] HCA 20; 241 CLR 237
- Williams v Spautz [1992] HCA 34; 174 CLR 509
- Walton v Gardiner [1993] HCA 77; 177 CLR 378
- R (Cth) v Petroulias (No. 9) [2007] NSWSC 84
- Doney v The Queen [1990] HCA 51; 171 CLR