Regina v Darwiche & Ors [2006] NSWSC 927

New South Wales Supreme Court

CITATION : Regina v Darwiche & Ors [2006] NSWSC 927

HEARING DATE(S) : 3/4/06, 10/4/06, 11/4/06, 12/4/06, 13/4/06, 18/4/06, 19/4/06, 20/4/06, 21/4/06, 24/4/06, 26/4/06, 27/4/06, 28/4/06, 1/5/06, 2/5/06, 3/5/06, 4/5/06, 5/5/06, 8/5/06, 9/5/06, 10/5/06, 11/5/06, 12/5/06, 15/5/06, 16/5/06

JUDGMENT DATE : 19 April 2006

JUDGMENT OF : Bell J at 1

DECISION : Applications for discharge of jury refused

CATCHWORDS : Criminal law - application for discharge of a jury - pre-trial publicity - broadcast prejudicial to the accused

LEGISLATION CITED : Jury Act 1977

CASES CITED : R v Glennon (1992) 173 CLR 592

Regina PARTIES : Adnan Darwiche (Accused0 Nasaem El-Zeyat (Accused) Ramzi Aouad (Accused)

FILE NUMBER(S) : SC 2005/992; 2005/1252; 2005/993; 2005/997

Lloyd Babb / John Pickering (Crown) COUNSEL : John Doris (Adnan Darwiche) Gregory Stanton (El-Zeyat) Glen Whitehead (Aouad)

S Kavanagh (Crown) SOLICITORS : Yazbek Lawyers (Adnan Darwiche) Theo Voros (El-Zeyat) Baird & Associates (Aouad)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Wednesday 19th April 2006

2005/992 2005/1252 - Regina v Adnan DARWICHE 2005/993- Regina v Nasaem EL-ZEYAT 2005/997 - Regina v Ramzi AOUAD

JUDGMENT 1 BELL J: On 10 April 2006 each of the accused applied for the discharge of the jury arising out of the publication of certain material in the Daily Telegraph that morning. I refused the application. The following day a fresh application for a discharge was made arising out of the broadcast on the Channel 10 News on 10 April of material concerning the trial. I refused this further application. These are my reasons for determining each of these applications. 2 Each application was made in a context that included the generic publicity about shootings associated with members of the Lebanese Moslem community to which I have referred in earlier reasons. 3 On Monday 10 April the Daily Telegraph devoted extensive coverage to recent shooting offences. A headline introducing a number of stories on pages 4 and 5 read "We're terrified: who will protect us". On page 5 there was a photograph of the deceased and his young wife, apparently taken at a formal function. They are pictured as a happy and attractive couple. Underneath the photograph was an article containing an interview with the deceased's father, Abdul Fahda. The article bore the subheading "Dad with a target on his back". The article read as follows: Abdul Fahda never stays in one place for more than a few days. He knows there is a target on his back for speaking out against gun-toting thugs. The fifty-four-year-old has been a critic of law and order since his son Ahmed died in a hail of bullets in 2003. "The community feels let down by the government and the police and they don't trust that the police will protect them", Mr Fahda told the Daily Telegraph . "Everyone knows who these criminals are, but they are being threatened that if they speak to the police they are a dog and they will shoot their house. People always say our community doesn't help the police but no one listens to us. I have been writing to the government since my son's murder and no one returns my letters. No one is listening," he said. Mr Fahda will continue to campaign for more police for the sake of "my community and my family". "There is going to be more shootings, more killings unless police get out there and lock these people up". He said the government should look at stripping the parents of criminals of their citizenship and deport them back to their home countries – if they knew their child's involvement in crimes. He said this should apply to any nationality. He said many parents were aware of their children's behaviour, but did not speak up. "By not speaking up they are supporting what their children are doing", he said. 4 The article is referable, as I have noted, to extensive coverage in the Daily Telegraph of recent shootings in Sydney. The front page of the paper carried the headline: "Police shot at as gangland violence erupts. Man executed in city street". 5 In counsels' submission, the coverage in the Daily Telegraph, including the photograph of the deceased and the interview with his father, was likely to create sympathy for the deceased. Generally the publication was said to place pressure on jurors to return verdicts of guilty, since the tenor of the coverage was that there was no one to protect the community against lawlessness, including the lawlessness that had led to the death of Abdul Fahda's son. A further item of discrete prejudice was said to be the assertion that Abdul Fahda has a target on his back for speaking out against gun-toting thugs. In counsels' submission, the jury should be discharged and the trial stood over to a date after the Easter break. While it was accepted that there was no reason to consider the present publicity about gun violence would have subsided by that date, it was submitted to be reasonable to assume that prospective jurors would not have paid particular note to the comments made by Abdul Fahda. Whereas the present jury, who had been empanelled on 3 April and sent away for the week, would have absorbed the name of the deceased and were likely to have paid attention to the coverage in the Daily Telegraph. 6 The Crown Prosecutor submitted that the gratuitous references to the death of Ahmed Fahda published in the Daily Telegraph on the first day of the trial were regrettable, but were not such as to occasion prejudice to the fair trial of the accused. I accepted that submission. The suggestion that Abdul Fahda considered himself a target seemed to me to be made in the context of his role in speaking out over the current wave of gun violence. The history of recent violence is set out in the right-hand column of page 5 and commences with an incident on 11 September 2005. Mr Fahda's complaint about persons in authority failing to listen to his complaints could hardly be thought to be referable to the investigation into the murder of his son two and a half years earlier. The accused have been charged with this offence and are on trial in respect of it. 7 One would expect jurors to have sympathy for a young man gunned down, as Ahmed Fahda was. The photograph of him appearing in the Daily Telegraph may excite sympathy. However, I did not consider that any sympathy thus engendered would affect the fair trial of the accused. The issue at the trial is likely to be whether the Crown can establish beyond reasonable doubt that it was the accused that shot the deceased. I would expect that a direction to decide the case on the evidence and to exclude any consideration of sympathy that jurors may feel towards the deceased would be obeyed. 8 I was mindful of passages in the judgments in R v Glennon (1992) 173 CLR 592; per Mason CJ and Toohey J at 603: The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J observed in Hinch ((1987) 164 CLR at 74), in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them.