R v Rizk [2024] NSWSC 314

Supreme Court New South Wales

Medium Neutral Citation: R v Rizk [2024] NSWSC 314 Hearing dates: On the papers Decision date: 26 March 2024 Jurisdiction: Common Law Before: Button J Decision: Certificate granted. Catchwords: COSTS – Suitors' Fund Act 1951 (NSW) – discharge of jury – no fault of applicant or her legal team – new trial ordered - certificate granted Legislation Cited: Suitors' Fund Act 1951 (NSW), s 6A Cases Cited: Mitchell v The King (2023) 97 ALJR 172; [2023] HCA 5 R v Bushell; R v Tozer (No 19) [2023] NSWSC 1455 R v Holmes (No 2) [2020] NSWSC 136 R v Karaali (No 3) [2022] NSWSC 1800 R v Martinez; R v Tortell (No 3) [2019] NSWSC 1619 R v Nehme, Price, Rahim, Taufahema and Rizk (Supreme Court (NSW), Button J, 9 March 2023, unrep) R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202 R v Niguidula (No 9) [2023] NSWSC 620 R v Pavia (1993) 67 A Crim R 364 Category: Costs Parties: Sherene Rizk (Applicant) Rex (Crown) Representation: Counsel: J Stratton SC (Applicant) C Taylor (Crown)

Solicitors: Malouf Criminal Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2019/397014

JUDGMENT 1. This judgment resolves an uncontested application for a certificate pursuant to s 6A(1)(c) of the Suitors' Fund Act 1951 (NSW) (the Act), arising from a murder trial conducted before a jury and me that was aborted before delivery of verdict. The certificate is sought by Ms Sherene Rizk (the applicant). 2. As my judgment in R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202 shows, the trial was aborted as a result of the High Court of Australia developing the law about the intersection between the doctrines of constructive murder and extended joint criminal enterprise in Mitchell v The King (2023) 97 ALJR 172; [2023] HCA 5. I considered that my understanding of that aspect of criminal law had been imperfect, with the result that my pre-trial rulings on the topic were (at the least) contestable, with the further result that the whole trial up until that point had (at the least, arguably) been conducted on a wrong legal footing. 3. Because I could see no way to continue the trial without effectively starting it in its entirety again, I discharged the jury: see my subsequent unreported judgment of R v Nehme, Price, Rahim, Taufahema and Rizk (Supreme Court (NSW), Button J, 9 March 2023, unrep). 4. Turning now to the statutory paragraph relied upon, and paraphrasing it to a degree for ease of analysis: I was the presiding judge; the criminal proceedings in question were discontinued; I ordered a new trial; that outcome was not in any way attributable to disagreement on the part of the jury; nor was it attributable to the "act, neglect or default" of the applicant or her legal team. 5. It follows that the statutory preconditions for the granting of a certificate are established, and none of the statutory prohibiting factors are established. 6. Separately, I believe that it would be entirely orthodox for me to provide such a certificate in the circumstances, in accordance with such authorities as R v Pavia (1993) 67 A Crim R 364 at 369; R v Martinez; R v Tortell (No 3) [2019] NSWSC 1619; R v Holmes (No 2) [2020] NSWSC 136; R v Karaali (No 3) [2022] NSWSC 1800; R v Niguidula (No 9) [2023] NSWSC 620; R v Bushell; R v Tozer (No 19) [2023] NSWSC 1455. And I am fortified in that opinion by the lack of opposition to that course by the Crown. 7. Of course, which if any steps are taken as a result of me issuing that certificate, as the latter part of s 6A(1) and s 6A generally show, is a matter for others. 8. In accordance with the above, annexed to this judgment is a copy of the certificate provided today by my Associate to the legal team of the applicant, in accordance with the draft previously provided by that legal team to my Associate, about which no technical or other criticism was made by the Crown.