New South Wales Supreme Court CITATION : Regina v Adnan Darwiche [2006] NSWSC 923 HEARING DATE(S) : 9/3/06,13/3/06, 14/3/06, 15/3/06, 16/3/06,20/3/06, 21/3/06, 24/3/06, 27/3/06, 28/3/06, 29/3/06, 30/3/06 JUDGMENT DATE : 31 March 2006 JUDGMENT OF : Bell J at 1 DECISION : 1. The accused's motion is dismissed; 2. Pursuant to s 20 of the Criminal Procedure Act 1986 leave is granted to the Crown to substitute an indictment in the form of the draft handed up on 29 March 2006. CATCHWORDS : Separate trial applicaiton - substituted indictment CASES CITED : R v Baartman (unreported) NSWCCA, 6 October 1994 R v Middis (unreported), NSWSC, Hunt J, 27 March 1991 PARTIES : Regina Adnan Darwiche (Accused) FILE NUMBER(S) : SC 2005/992; 2005/1252 COUNSEL : Lloyd Babb / John Pickering (Crown) Angus Webb / Craig Smith (Accused) SOLICITORS : S Kavanagh (Crown) Mark Klees & Associates (Accused) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BELL J Friday 31 March 2006 2005/992; 2005/1252 Regina v Adnan Darwiche JUDGMENT 1 BELL J: On 5 August 2005 the accused, Adnan Darwiche, was arraigned on an indictment containing ten counts charging him and four other persons with offences relating to three incidents that are said to have occurred in 2003. The indictment contained counts charging the accused with (i) shooting at Farouk Razzak with intent to murder on 27 August 2003; (ii) 2 counts of murder and 1 count of attempted murder arising out of a shooting in Lawford Street, Greenacre on 14 October 2003; and (iii) soliciting Nasaem El Zeyat, Ramzi Aouad and Mohammed Toumah to murder Ahmed Fadha in the period between 15 October and 13 October 2003 and with being an accessory after the fact to the murder of Ahmed Fahda by Nasaem El Zeyat and Ramzi Aouad between 30 October and 5 November 2003. In addition to these counts the accused was charged with firearm offences arising out of his alleged possession of a self-loading pistol on the date of his arrest, 28 November 2003. The accused entered pleas of not guilty to each count. 2 The trial was fixed to commence on 13 February 2006. Prior to that date each of the accused moved for orders separating the trial of various counts. The motions came on for hearing on 8 December 2005. The accused's motion, and those brought by Ramzi Aouad, Abass Osman and Nasaem El Zeyat were stood over to be determined at the conclusion of evidence to be led at a voir dire. The voir dire was fixed to commence immediately upon the conclusion of the trial of Abdul Darwiche for the offence of shooting at Farouk Razzak with intent to murder. 3 The present trial commenced on 9 March 2006. On 13 March the Crown Prosecutor announced that it was his intention to proceed on a separate indictment in relation to the charges arising out of the murder of Ahmed Fadha. The Crown proposed that this trial commence at the conclusion of the voir dire and that trials of the remaining counts follow thereafter. 4 The evidence on the voir dire was completed on Tuesday 28 March. The proceedings were stood over to the following day to deal with some further preliminary issues relating to the trial of the Fadha counts. It is proposed to empanel a jury to try the accused, Ramzi Aoud and Naseam El-Zeyat with respect to the Fahda counts on Monday 3 April. 5 The accused was represented by Mr Webb, instructed by Mr Klees solicitor, on the hearing of the motion in December 2005 and on the voir dire. At the time the Crown Prosecutor indicated his intention to proceed on the trial of the Fadha counts separately, none of the counsel then appearing for the accused demurred to the proposal. The trial of the Fahda counts was fixed to commence on 3 April without further consideration of the part-heard motions filed earlier in the proceedings. 6 On Wednesday 29 March Mr Doris appeared, instructed by Yazbek Lawyers, on behalf of the accused. On Thursday 30 March, Mr Doris sought and was granted leave to file in court a motion returnable instanter, claiming the following orders: That leave to prefer count 1 of the proposed indictment be refused, and that the applicant's trial on count 3 be heard separately from his co-accused on count 2. 2. In the alternative, that trial of Adnan Darwiche (sic) on counts 1 and 3 of the proposed indictment be heard separately of (sic) his co-accused on count 2 of the proposed indictment. 7 No evidence was led in support of the motion. Mr Doris developed his submissions orally. These focused wholly on the relief claimed in order 2. 8 At the conclusion of the argument I granted the Crown leave to substitute the indictment charging the accused with encouraging Nasaem El Zeyat and Ramzi Aouad to murder Ahmed Fadha; together with counts against Ramzi Aouad and Nasaem El Zeyat charging the murder of Ahmed Fadha and the count charging the accused with being an accessory after the fact to the murder of Ahmed Fadha by Nasaem El Zeyat and Ramzi Aouad for the indictment upon which each had been earlier arraigned. These are my reasons for that ruling. 9 Mr Doris did not contend that counts charging his client with the s 26 offence and with being an accessory after the fact to the murder of Ahmed Fadha were not properly joined in an indictment charging Ramzi Aouad and Nasaem El Zeyat with the murder of Ahmed Fadha. It was not submitted that the substitution of a count under s 26 of encouraging murder (as distinct from soliciting to murder) had occasioned any prejudice to the accused. Central to Mr Doris' application is that evidence admissible in the Crown case on the count of murder may prejudice the accused. 10 The accused was the subject of police surveillance, unconnected to the murder of Ahmed Fadha, in the period prior to the killing. The Crown proposes to lead surveillance evidence obtained from this operation to establish that Ramzi Aouad and Nasaem El Zeyat had access to a Holden Commodore motor vehicle, which was observed by an eyewitness to have been used by the two shooters at the time of the killing. Surveillance photographs show the accused in this vehicle on 17 October 2003. There is further surveillance material linking the accused, Ramzi Aouad and Naseam El Zeyat to the vehicle in the period between 17 October and the date of the shooting. It is accepted that this material is indicative of the accused having been the subject of intense police surveillance in the two weeks prior to the shooting. 11 The Crown proposes to adduce surveillance photographs taken by the police of the accused, Naseam El Zeyat and Ramzi Aouad at Menai at around 6:00 pm on the evening of 30 October. These photographs were taken within hours of the shooting. Mr Doris acknowledges that the post-shooting surveillance evidence is admissible against his client in relation to the offence charged in count 3. 12 The Crown case against the accused in support of each of the counts is dependent upon the evidence of an indemnified witness, Mr X. Mr Doris' concern is that the evidence of the police surveillance of the accused prior to the shooting may prejudice him because the jury will infer that he was suspected by the police of involvement in some form of criminal activity. Mr Doris acknowledged that the circumstance that the police were in possession of surveillance photographs of the accused taken a matter of hours after the killing might be susceptible of the same inference. Nonetheless, in his submission, the potential for prejudice is greater should the jury be exposed to the pre-shooting surveillance evidence. 13 Mr Doris relied on the statement of the principles governing the circumstances in which separate trials may be ordered set out in R v Middis (unreported), NSWSC, Hunt J, 27 March 1991: (1) Where the evidence against an applicant for a separate is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial. The statement of these principles was adopted in R v Baartman (unreported) NSWCCA, 6 October 1994. 14 An element of the offence charged in count 3 is proof that Ahmed Fadha was murdered by Ramzi Aouad and Naseam El Zeyat. In the course of submissions I raised with Mr Doris the circumstance that at a separate trial the evidence of the pre-shooting surveillance linking Ramzi Aouad and Naseam El Zeyat to the Holden Commodore would be admissible in proof of the Crown case against the accused on count 3. Mr Doris submitted that, were an order for separation made, the accused would have the opportunity of making admissions of fact, which may avoid the need for the Crown to call the surveillance evidence. 15 In the Crown's submission, the application should be determined upon the basis that the Crown would be required to prove each of the elements of the offence charged in count 3 at any separate trial and that the surveillance evidence would be admissible. I accept that is the approach that I should take to the determination of the application. 16 The Crown Prosecutor identified a number of considerations in support of his submission that the interests of justice favour a joint trial. These include that the expense and inconvenience of calling the same evidence twice will be avoided. I am informed that some civilian witnesses have fears about giving evidence at the trial. This is not to say that any fears arise by reason of conduct of the accused, but merely to recognise that witnesses giving evidence about a violent incident of this character may be apprehensive. On an earlier occasion the Crown expressed concerns about the willingness of certain of its indemnified witnesses to give evidence on repeated occasions and submitted that there is material to suggest that some of these witnesses have fears for their safety. I accept that to be the case. 17 Apart from ensuring that all relevant evidence is available and that an unnecessary burden is not placed on civilian witnesses I considered that the interests of justice are also promoted by the one jury returning verdicts in the case of Ramzi Aouad and Naseam El Zeyat for the murder of Ahmed Fadha and this accused in relation to the offence charged in count 3. 18 This is not a case where there is a risk that evidence that is admissible against one accused may be used by the jury to shore up a weak case against another, as may happen when the contents of the one accused's interview with the police contains assertions implicating another in the commission of the offence. The prejudice identified is that the jury will infer the accused is a person of bad character because he was the subject of police surveillance. The evidence would be admissible at the separate trial of the accused. To the extent that its admission gives rise to a risk of prejudice I consider that the risk may be adequately addressed by directions to the jury. ORDERS 1. The accused's motion is dismissed. 2. Pursuant to s 20 of the Criminal Procedure Act 1986 leave is granted to the Crown to substitute an indictment in the form of the draft handed up on 29 March 2006. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.