R v DIB, KANAAN & REFAI [2002] NSWSC 1244

New South Wales Supreme Court

CITATION : R v DIB, KANAAN & REFAI [2002] NSWSC 1244 FILE NUMBER(S) : SC 70201/02; 70006/02; 70200/02 HEARING DATE(S) : 9 December 2002 JUDGMENT DATE : 18 December 2002

Regina PARTIES : Mohamed Dib Michael Kanaan Nawaf Refai JUDGMENT OF : Hulme J at 1

Crown: P Conlon SC COUNSEL : Dib: J Korn Kanaan: A Morison Refai: M Thangaraj SOLICITORS : Crown: SE O'Connor Prisoners: TA Murphy DECISION : See paragraph 69

- 20 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL DIVISION

HULME J

70201/02 70006/02 70200/02 Wednesday, 18 December 2002

Mohamed DIB, Michael KANAAN, Nawaf REFAI

REMARKS ON SENTENCE

1 HULME J: The prisoners before me were committed for trial on 17 December 2001 on a number of charges, one of which was of being an Accessory after the Fact to Murder. They were arraigned in this Court on 1 February 2002. There is no endorsement on the Court file of what their pleas then were but from the fact that their trial, and that of Moustapha Dib for the principal offence were listed to commence on 9 September last and extend for an estimated 6 weeks, one may infer that they did not indicate any intention to plead guilty. 2 On that day there were applications made to defer the trial of Mr Kanaan because of publicity he had received in consequence of other trials and to separate the trial of the others from his. Those applications I refused. There were some other complications it is unnecessary to detail and the proceedings were stood over, without any further arraignment or empanelling of a jury until Wednesday 11 September. 3 Before proceedings recommenced on the Wednesday, I was informed that the Crown proposed to present an indictment including a lesser charge. Counsel for the 3 prisoners indicated that they wished for some time to consider the situation and discuss it with their clients and when I resumed the Crown presented an indictment charging each of Mohamed Dib and Narwaf Refai with, between about 17 and 19 October 1998, being an accessory after the fact to the murder, by Moustapha Dib, of Edward Lee and, secondly with, between those dates, being an accessory after the fact to the malicious wounding of Edward Lee by Moustapha Dib with intent to do grievous bodily harm. Each of these prisoners pleaded not guilty to the charge of being an accessory after the fact to murder but guilty to the lesser charge. The Crown indicated it would accept those pleas in full satisfaction of the charges against each. Proceedings involving these 2 were stood over to 18 October for sentence. 4 It was indicated that Mr Kanaan wished for more time to consider his position and proceedings were adjourned to the following day. After Mr Kanaan was given a little more time on the Thursday morning, his counsel indicated that he would plead guilty to the alternate count. An indictment in materially the same terms as that against the other prisoners was then presented and he pleaded not guilty to both offences. After further discussion with his legal advisers, he was re-arraigned on the lesser charge and pleaded guilty. His sentencing proceedings also were stood over to 18 October. 5 For completeness I should say that a trial of Moustapha Dib on a charge of murder commenced and was then aborted. A second trial also before me proceeded for some time but the jury were discharged without a verdict. I have been informed that he has since pleaded guilty to manslaughter but has not been sentenced. Whatever may have been the position otherwise, in those circumstances, I do not see Moustapha Dib's situation as of any present relevance. During the sentencing proceedings involving the prisoners some of the evidence in Moustapha Dib's trial was tendered but it was submitted that I should take no account otherwise of the evidence in that trial. I have proceeded on that basis.