Regina v Abdul Darwiche [2006] NSWSC 848

New South Wales Supreme Court

CITATION : Regina v Abdul Darwiche [2006] NSWSC 848

HEARING DATE(S) : 20/2/06, 21/2/06, 22/2/06, 27/2/06, 28/2/06, 1/3/06, 2/3/06, 3/3/06, 6/3/06, 7/3/06, 8/3/06

JUDGMENT DATE : 8 March 2006

JUDGMENT OF : Bell J at 1

DECISION : Not guilty of shooting with intent to murder; Not guilty of alternative count of maliciously discharging a loaded firearm with intent to do grievous bodily harm

CATCHWORDS : Prasad direction - judge alone trial

Crimes Act 1900 LEGISLATION CITED : Criminal Procedure Act 1986 Evidence Act 1995

CASES CITED : Prasad v R (1979) 23 SASR 161

PARTIES : Regina Abdul Darwiche (Accused)

FILE NUMBER(S) : SC 2005/1253

COUNSEL : John Pickering (Crown) John Doris (Accused)

SOLICITORS : S Kavanagh (Crown) Yazbek Lawyers (Accused)

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

BELL J

WEDNESDAY: 8 MARCH 2006

2005/1253 Regina v Abdul DARWICHE

JUDGMENT - on Prasad direction (see p582 of transcript) -

1 HER HONOUR: On 20 February 2006, the accused was arraigned on an indictment that charged him that on 27 August 2003 at Condell Park he did shoot at Farouk Razzak with intent to murder the said Farouk Razzak. In the alternative, he was charged that on the same day and at the same place he did maliciously discharge a loaded firearm with intent to do grievous bodily harm to Farouk Razzak. He pleaded "not guilty" to each count. 2 On 17 February 2000 the accused elected in accordance with provisions of s 132 of the Criminal Procedure Act 1986 to be tried by judge alone. He was represented by Mr Doris of counsel and I was satisfied that before making the election he had sought and received advice from Mr Doris in relation to it. The Director of Public Prosecutions consented to the election made by the accused and accordingly the trial has proceeded before me as a judge sitting alone without a jury. 3 Prior to the present trial, the accused was arraigned on the same indictment and a trial commenced with a jury. Senior Constable Gane gave evidence of the crime scene investigation and some short evidence was given by another scientific officer, David Boyd, concerning the preparation of the photogrammetry plan. Following the crime scene evidence, Farouk Razzak commenced his evidence in chief. On the second day of the trial I discharged the jury as the result of some material volunteered by Mr Razzak, which may have prejudiced the fair trial of the accused. The present trial commenced on the following Monday. The exhibits that had been tendered at the earlier trial were tendered and the transcript of the evidence given at the earlier trial was tendered by consent as evidence in this trial. 4 At the close of the Crown case Mr Doris invited me to remind myself of the observations of King CJ in Prasad v R (1979) 23 SASR 161. His Honour there said this, It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. 5 In Mr Doris' submission, the evidence is insufficient to sustain a conviction on either count and without hearing any evidence in a case that the accused may care to bring and without the benefit of closing submissions, I would return a verdict of "not guilty" on each count. In the way Mr Doris' application was developed, I had the benefit of detailed submissions on the evidence from him and from the Crown Prosecutor. 6 The offence charged in count one is provided by s 29 of the Crimes Act 1900, it is necessary for the Crown to prove beyond reasonable doubt the following elements: (i) the accused shot at Farouk Razzak; and (ii) at the time of so doing, he intended to murder. 7 It is not sufficient for the Crown to establish that the accused discharged a loaded firearm in the vicinity of Mr Razzak. To "shoot at" means to shoot to hit. The intention that the Crown must establish is an intention to kill. 8 The alternative charge is provided by section 33A(1) of the Crimes Act. The ingredients of this offence are that the accused: (i) acted with malice; (ii) shot at Farouk Razzak; (iii) at the time of so doing it was his intention thereby to do grievous bodily harm. 9 In the way the trial has been conducted, I understand there to be no issue that if Farouk Razzak's evidence of being present on the lighted front verandah of premises at 106 Yanderra Street at the time when two persons discharged automatic (or semi-automatic weapons) in his direction is accepted, the inference to be drawn is that each shooter was possessed of an intention thereby to kill him. 10 At about 9.30 pm on Wednesday 27 August 2003 55 rounds were fired from two automatic or semi-automatic assault style rifles in the direction of premises at 106 Yanderra Street and its surrounds. 11 Senior Constable Gane of the crime scene section arrived at the scene at about 10.35 pm. The first police officers attended some time shortly before 10.00 pm that evening. 12 Yanderra Street runs from east to west. No. 106 is on the northern side of the street in the block between Fourth Avenue, which is to the west and Fifth Avenue, which is to the east. Number 108 is to the immediate west of No. 106, on the corner of Fourth Avenue and Yanderra Street. 13 The premises at No. 106 comprise a three bedroom, aluminium clad dwelling. It has an open, tiled, front verandah facing south. Two steps lead from the front verandah to a paved front yard and driveway on the western side of the lot. Immediately, in front of the verandah there is a raised garden bed containing bushes extending for most of the length of the verandah that appear to have been well in excess of one metre in height at the time of this incident. They are clearly depicted in photograph No. 121 (Ex A). 14 The photographs taken on the night show two exterior lights on the verandah. The evidence is that these were operated by sensors. 15 At the time the police attended the scene and secured it, a blue Ford Laser was parked facing east on the nature strip immediately in front of No. 106, a white Mazda facing west was parked immediately adjacent to the northern kerb outside the premises at No. 106 but to the east of the Laser. The bonnets of each vehicle were in line with one another. The location of the vehicles is depicted in the photogrammetry plan and in the photograph Ex K. 16 On the grass nature strip outside No. 108 were located 14 x 7.62 calibre fired cartridge cases. On the roadway outside No. 108 were located 40 x 7.62 calibre fired cartridge cases. The location of the fired cartridge cases is recorded in a number of photographs taken by Senior Constable Gane and in the photogrammetry plan. 17 One fired cartridge case was found on the roadway to the east of the other fired cartridge cases at a position indicated in the photographs by a marker labelled A. 18 A wooden pole with street light attached to it was located at the edge of the grass nature strip on the northeastern corner of Yanderra Street and Fourth Avenue. 19 The fifty-five fired cartridge cases were fired from two automatic or semi-automatic weapons. It is likely that they were SKS rifles. I am satisfied that each weapon was fired from a position on the nature strip within the area marked by Detective Snow on the copy of a photogrammetry plan, Ex 1. 20 The white Mazda had collision damage to the front near side. It had suffered extensive bullet damage consistent with 11 rounds being fired at it from a weapon chambered to fire .40 calibre bullets, which is likely to have been a self-loading pistol. The blue Ford Laser suffered no bullet or other damage. I do not conclude from this circumstance that the Laser was not parked in the position indicated in the photogrammetry plan at the time of the shooting. 21 There were two distinct episodes of shooting in Yanderra Street that took place within a short interval at about 9.30 pm on 27 August 2003. The likelihood is that a person fired a series of shots at the white Mazda in order to attract the attention of the occupants of the premises at No. 106. When one or more persons came out of the premises on to the front verandah, two persons standing on the nature strip on the northern side of Yanderra Street near the intersection with Fourth Avenue opened fire with assault rifles, which were aimed in the direction of the verandah of No. 106. 22 SKS rifles have a significant recoil when fired and are likely to be inaccurate when discharged by persons who lack training in their use. Whoever fired these two weapons on this occasion did not appear to have been trained in their use. The pattern of firing was erratic. Shots travelled wide of No. 106 on the northern side of Yanderra Street, with bullets passing through the exterior wall of the premises as far as No. 96, which is on the eastern corner of Yanderra Street and Fifth Avenue. 23 I propose to refer to some of the evidence in chief given by Farouk Razzak before turning to the criticisms of it made by Mr Doris. 24 Farouk Razzak learned in 2001 of difficulties that his nephew, Bilal, was having with some members of the Darwiche family. He was called upon to try to solve the problem by his cousin, Ali Abdul Razzak. Farouk Razzak understood that the problem had started between the youngest member of the Darwiche family, Mohamad Ali Darwiche, and Bilal Razzak. There had been an escalation of the difficulties between the two families after this time. 25 A meeting was held at the home of Ali Abdul Razzak in 2001 in an endeavour to sort out the problem. At this meeting, which was attended by members of the two families, Farouk Razzak said that the accused made a threat in terms, "My brother said you have to give us Bilal in two hours or leave the country or fucking kill all Razzaks straight now" (T 149.38-40). After this the accused and the other members of the Darwiche family walked out of the meeting. 26 Farouk Razzak had seen the accused and his brothers regularly prior to the meeting at Ali Abdul Razzak's home. He had come to know him when Ali Abdul Razzak became engaged to Khadjie Darwiche, who is the sister of the accused. This was around 1990. Farouk Razzak attended the accused's wedding. He attended the weddings of Adnan and Michael Darwiche. He attended other family functions at which the Darwiche brothers were present, including the funeral of Farouk Darwiche. 27 I am satisfied that Farouk Razzak was familiar with the appearance of each of Farouk Darwiche's sons, and that he was able to recognise the accused and each of his brothers. 28 At about 9 or 9.30pm on the evening of 27 August 2003, Farouk Razzak said that he had been at his son, Samear's, home at 106 Yanderra Street. Present at that time were his wife, Nahla, his teenage son, Mohamad and his daughter, Jomana. Jomana and Mohamad each suffer from a disability that affects their mobility. 29 Mr Razzak said that he, his wife and Mohammed were in the TV room when he heard six sounds that he described as "bang, bang, bang". He got up and walked down the hall to the front door. He opened the front door and looked out. He then opened the screen door and walked outside. He said that he saw, "like some shadow go towards the right, under the dark, the trees". (T 154. 33-34 16/2/06). He walked about three metres to the western end of the verandah, "suddenly I see two different persons. Since I saw them I yell to them, I swear to them, 'Hey boy, what you fucking'-- then the fire come out of the gun, they not let me to finish my words". (T 154-155 16/2/06). The two persons were on the road surface of Yanderra Street, under the streetlight in front No. 108. Mr Razzak marked the position of the two shooters on a copy of the photogrammetry plan, Ex 4. 30 Mr Razzak said that as soon as he saw the two men he recognised them as Abdul and Eddie Darwiche. Eddie Darwiche is the name by which Adnan Darwiche is known. They immediately started shooting at him and he saw fire coming from the gun. He went on to describe what happened in this way: …and I turn back and I walk just normal. I didn't run. I walk normal until I get the screen door, the screen door lock by itself. I put the handle and the bullets, I think it must miss my eyes maybe one millimetre and, my head, my everywhere They stop me. I think second on the door, I can't move. The handle come off in my hand, and I feel burn. (T 64. 45-51) 31 Mr Razzak was not able to say what kind of guns the men were holding. He said that he had opened the front door and walked in and at this point the shooting stopped completely. He had seen his wife in a distressed condition. He had gone to check on Jomana, who was in Bedroom 2. Next he went back out on to the verandah and he saw a white car, which he thought was a Honda, with its lights off, driving in an easterly direction down Yanderra Street. His wife was screaming; she had not suffered any injury. He went back inside and told his wife, "Listen, that pigs, Abdul and Eddie, they shot me". 32 Mr Razzak said that he had contacted other members of his family after the shooting: his sons, Samear and Ziad and, his cousin, Ali Abdul Razzak. All three arrived together at the premises at 106 Yanderra Street. I infer on that on Farouk Razzak's account it took at least some minutes for these three persons to arrive at the premises; a circumstance that assumes significance when taking into account the evidence of the neighbours. 33 Mr Doris submitted that I would not be satisfied that Farouk Razzak was present at No. 106 at the time of the shooting. I record my satisfaction beyond reasonable doubt that he was. In addition to Farouk Razzak's evidence and the evidence of his wife and Jomana, I consider that Jennifer Pine's evidence was strongly supportive of such a finding. The evidence of Constable Liouthakis as to Mr Razzak's appearance at the time he spoke to him on the evening of the shooting provides further support for an acceptance of his account. 34 It remains that the Crown case is wholly dependent on an acceptance of the reliability of the evidence of Farouk Razzak that he recognised the accused as one of the shooters. 35 It is necessary to bear in mind the special need for caution before accepting identification evidence and the reasons for that caution, both generally and in the circumstances of the case: s 116 of the Evidence Act 1995. This caution is necessary even in a case in which the Court is satisfied that the witness has given completely honest evidence of identification. The directions that the Evidence Act requires to be given attach to the reliability of evidence of this character and not to the honesty with which it was given. 36 I am mindful that completely honest witnesses have been mistaken in their evidence of identification, and that it has been the experience of the criminal courts, in this jurisdiction and elsewhere, that identification evidence, no matter how honestly given, has proved to be unreliable. There are notorious cases in which honest evidence of identification has been demonstrated to have been wrong after the conviction of innocent persons. Errors in identification may occur even when, as here, the witness has previously known the accused. The reliability of evidence of identification, including evidence of recognition of a person known to the witness, plainly depends upon the circumstances in which the observation was made, which include the length of time over which the person was observed, the lighting conditions and the distance between the witness and the person identified. 37 In this case Mr Doris pointed to a number of features of the evidence of Farouk Razzak as adversely affecting its reliability. His opportunity to observe the two persons holding assault rifles pointed at him at shoulder height was a fleeting one. As soon as he saw them and shouted at them their immediate response was to open fire. The incident occurred at night, the lighting was that provided by the street lamp on the corner of Yanderra Street and Fourth Avenue. The opportunity for observation before Mr Razzak saw the muzzle fire was, one would think, of the order of a second or less. 38 I am satisfied that Mr Razzak's recollection that the two shooters were standing on the roadway of Yanderra Street in the position that he marked on Ex 4 is inaccurate. 39 Detective Snow, who is an expert in ballistics, marked the probable location of the two shooters by cross-hatching on Ex 1. This described a range of more than a metre over which the two shooters were likely to have been located at the time of the shooting. The pattern of fired cartridge cases on the nature strip and the road surface was consistent either with the shooters moving a short distance over the area marked by Detective Snow, or firing from a stationary position. Rifles of the type chambered to fire 7.62 cartridges eject to the right over a distance of three to five metres. This evidence, when taken with the evidence of the location of the fired cartridge cases, serves to demonstrate why Detective Snow's evidence is to be preferred to Mr Razzak's on the question of the location of the shooters. 40 Mr Razzak's ability to observe the two shooters, assuming they were standing in the area indicated on Ex 1, was to my mind somewhat less advantageous than it would have been if Mr Razzak's recall were correct and they were standing on the roadway, somewhat closer to No. 106 41 The Crown Prosecutor pointed to a number of aspects of the physical evidence that were consistent with Mr Razzak's account. As the Crown observes, Mr Razzak said that he had been shot at by two persons holding assault rifles to their shoulders. The evidence establishes that two such weapons were fired in the direction of the front verandah. While the position that Mr Razzak identified as the location of the shooters does not accord precisely with the location that I am satisfied they occupied, his evidence was nonetheless broadly consistent with the evidence of Jennifer Pine. She observed a figure, consistent in appearance with being Farouk Razzak, standing on the verandah of No. 106, at the point closest to the boundary with her property, calling out excitedly in the general direction of the front of her property. 42 The consistency of Farouk Razzak's account of the shooting with the physical evidence does not assist in determining whether I may be satisfied beyond reasonable doubt of the reliability of his identification of this accused as one of the shooters. 43 In Mr Doris' submission there are a number of features of the evidence of Mr Razzak that would lead me not to act on his evidence of identification in the absence of independent evidence tending to support it. The first of these is the assertion that Farouk Razzak has given a number of inconsistent versions of the events. Mr Doris submitted there were five, or perhaps on one view, six, inconsistent versions. Certain of the suggested inconsistencies, to my mind, were not matters of moment. However, there is one inconsistency that requires that Mr Razzak's subsequent account, identifying the accused as one of his assailants, be assessed with circumspection. On the night, when the police attended the scene and spoke with Mr Razzak, he denied that he had been present at the time of the shooting. 44 In the Crown's submission, Mr Razzak has given a satisfactory explanation for his reticence when first speaking with the police. In evidence-in-chief he was asked these questions and he gave these answers: Q. Please go slowly and tell me what you just said, what was it you just said when the police came? A. I answer his question, that's all.