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. Brennan J observed that the law must place reliance on the integrity and sense of duty of the jurors (at 614). Deane, Gaudron and McHugh JJ observed that ordinarily the risk that prejudicial publicity will preclude a fair trial will be obviated by appropriate and thorough directions (at 623). 9 In determining to refuse the application for a discharge I took into account that this is a trial of three accused and that it is estimated to take six to eight weeks. It had been necessary to issue summonses to a large number of prospective jurors to ensure a sufficiently large panel was available. In the event the jury were discharged it may take some time to arrange for another panel. Taking into account the passages in Glennon to which I have referred and in light of my view that the references to the deceased and his father in the publication were not such as to prejudice the accused at a trial in which the issue is one of identification, I declined the application. 10 After I refused the application and following the Crown Prosecutor's opening address, I raised with the parties the question of the power to examine the jurors on oath pursuant to s 55D of the Jury Act 1977 to determine whether any had read the Daily Telegraph article and, if so, whether he or she had been influenced by it. The Crown Prosecutor submitted that, in light of the content of my opening remarks to the jury and given the nature of the material, an examination under s 55D was not called for. Counsel for each of the accused invited me to examine each of the jurors pursuant to that section. In light of their submissions, I considered it appropriate to do so. 11 Each of the jurors was examined on oath in the absence of the other jurors. Each had seen the photograph of the deceased and a number of them had read the article containing the interview with Abdul Fahda. A copy of the Daily Telegraph was in the jury room. Each said that the material in the Daily Telegraph had not influenced him or her. I considered the responses of the members of the jury to be eloquent of the integrity and sense of duty that jury service imposes on citizens and which underlies passages in the judgments in Glennon to which I have referred. 12 Before turning to the Channel 10 News broadcast of the trial that was aired at 5:00 pm on 10 April 2006, it is appropriate to set out some remarks that I addressed to the jury immediately after the examination to which I have referred: Thank you for that, members of the jury. I can appreciate it might have seemed like a somewhat unusual exercise to be taken through, but you do appreciate how serious these charges are, and how important it is in fairness to all the parties, to the accused and the Crown, that we have your verdicts based on the evidence and not on views that may be formed by something you read in the media or the like. I do invite you to be very careful throughout this trial to put out of your minds publicity, including generic publicity. There seems to be a deal of publicity at the moment about shooting offences and the like. None of that publicity will help you for a moment in determining the issues raised in this case, as I am sure all of you will understand. Thank you for your patience (T 61.4-18). 13 I addressed those remarks to the jury at about 2.45 pm on Monday 10 April. On the 5:00 pm News broadcast by Channel 10 there was a report of the first day of the trial. The report included a segment in which the journalist, Amber Muir, referred to the estimated length of the trial and asserted, wrongly, that seven witnesses were expected to give evidence with their identities suppressed out of fear of retribution for taking part or words to that effect. 14 The Channel 10 broadcast seemed to me to be in a different category to the material published in the Daily Telegraph in that it was capable of affecting the fair trial of the accused, in that an inference might be drawn that witnesses had reason to be in fear of the accused. 15 On this occasion the Crown Prosecutor submitted that I should examine the jurors under s 55D to determine whether they had seen or heard the broadcast and, in the event that any juror had seen it, whether it had influenced him or her. 16 Counsel for the accused submitted that there were dangers associated with further recourse to the power conferred by s 55D. In particular, it was submitted that a juror might, truthfully, respond that he or she had not seen the Channel 10 News without disclosing that a friend had recorded it for the juror to view. It was submitted that an inquiry directed to whether any juror had watched the Channel 10 News was likely to encourage other members of the jury to seek out information about the content of the broadcast. 17 At the commencement of the trial I drew the attention of the jury to those provisions of the Jury Act that deal with inquiries by jurors about the accused or any matter relevant to the trial: s 68C. I did not consider that I should approach the application for discharge or the question of whether to examine any juror pursuant to s 55D upon an acceptance of the submission that, contrary to my directions, jurors would seek out material relating to the trial that was not in evidence. 18 I decided to ask the jury whether any of them had seen the Channel 10 News broadcast relating to the trial. They were brought into court and I addressed that question to them generally. They responded negatively save for one juror who said that he had watched the broadcast. 19 I examined the juror who had watched the news broadcast on oath in the absence of the remainder of the jury. In answer to my question as to what he remembered of the coverage of the trial in the broadcast he said this: Ma'am, all I remember is that there was a reporter out the front of the courts stating that the trial had begun, and to be quite honest, that's all I took much notice of (T 119.19-21). In answer to further questions the juror recalled that there had been reference to the charges against the accused. He did not remember any reference to the number of witnesses who were to be called or anything about that topic at all. 20 I made no inquiry of the juror to see if the juror had referred to the contents of the broadcast in discussions with members of the jury, nor did I tell him not to discuss the matter with other members of the jury. He did not recall the material identified as potentially prejudicial to the accused and I considered that there was no occasion for me to inquire further since it may intrude into the privacy of discussions in the jury room. 21 When I asked whether any member of the jury had seen the broadcast I was satisfied that none, save the one juror to whom I have referred, had viewed it. I was satisfied that the juror who had seen the broadcast had not been influenced by it and did not have a recall of the potentially prejudicial material. In these circumstances I did not consider that, as a matter of fact, the broadcast had prejudiced the fair trial of the accused. 22 I determined the application on the basis that no member of the jury had been influenced by the broadcast and upon my view that the jury will comply with my directions and not make inquiries to find out what assertions had been made in the course of the broadcast. ********** 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.