New South Wales Court of Criminal Appeal CITATION: R v Abdul-Razzak, Razzak & Razzak [2006] NSWCCA 195 HEARING DATE(S): 20 June 2006 JUDGMENT DATE: 21 June 2006 JUDGMENT OF: Studdert J at 1; Kirby J at 18; Johnson J at 19 DECISION: Appeal dismissed. LEGISLATION CITED: Criminal Appeal Act, s 5F R v Munro (unreported, NSWCCA, 30 June 1994) CASES CITED: R v Kaddour (2005) 156 A Crim R 11 John Fairfax Publications Pty Limited v District Court (New South Wales) (2004) 61 NSWLR 344 Regina v Rabia Abdul-Razzak PARTIES: Regina v Mohamed Razzak Regina v Samear Razzak FILE NUMBER(S): CCA 2006/1429 G.E Smith SC/G.J. Tabuteau (Crown) COUNSEL: T. Game SC/A. Morrison (Rabia Abdul-Razzak) M. Ainsworth (Mohamed Razzak) R. Driels (Samear Razzak) SOLICITORS: S. Kavanagh (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0590 LOWER COURT JUDICIAL OFFICER: Knox DCJ SC LOWER COURT DATE OF DECISION: 20 June 2006 - 7 - IN THE COURT OF CRIMINAL APPEAL 1429/06 STUDDERT J KIRBY J JOHNSON J Wednesday 21 June 2006 REGINA v RABIA ABDUL-RAZZAK REGINA v MOHAMED RAZZAK REGINA v SAMEAR RAZZAK Judgment 1 STUDDERT J: The Director of Public Prosecutions has appealed to this Court pursuant to s 5F of the Criminal Appeal Act seeking the following orders: "1. A temporary stay of the trial, pending this Court's decision in this appeal. 2. An order vacating the judgment or ruling made by his Honour Judge Knox SC. 3. Such further or other orders as this Honourable Court thinks fit." 2 The appeal has been brought consequent upon a decision having been reached by his Honour Judge Knox SC to discharge the jury which has been engaged over the course of a period in excess of five weeks in the trial of the three co-accused who are presently standing trial charged on four counts of shooting with intent to murder and on four counts of maliciously discharging a loaded firearm with intent to do grievous bodily harm. There is a ninth count in the indictment of firing a firearm near a public place. The victims named in the eight counts first mentioned are Michael Darwiche, Mohamed Douar, Bassam Said and Rami Homsi. 3 Another trial began in the Supreme Court this week and in the Sydney Morning Herald on 20 June 2006 there was a report concerning the Supreme Court trial under the heading "Tit-for-tat attacks lead to triple murder charge". The report reads: "Three murders in Sydney's west - one near Lakemba mosque - came after several tit-for-tat attacks and a peace agreement between two rival families, and were sparked by a broken marriage, a Supreme Court jury was told yesterday. The problems between the Razzak and Darwiche families had begun in 2001. Ali Abdul-Razzak was murdered in his car near the Lakemba mosque in August 2003. Six weeks later his nephew, Ziad Razzak, was killed in a friend's Greenacre house. The friend's wife, Mervat Nemra, died from a wound in the neck after the house was hit by 50 shots. The killings followed two earlier shootings allegedly aimed at Bilal Razzak and Farouk (Frank) Razzak, the court was told. Adnan Darwiche is on trial over all these attacks, while three others - Nasaem El-Zeyat, Ramzi Aouad and Abass Osman - are also charged with murdering Ziad Razzak and Ms Nemra. The Crown prosecutor, Lloyd Babb, said in his opening yesterday that a former associate of Darwiche would give evidence that Darwiche had admitted to the shootings. The families' problems had begun with a confrontation between Darwiche, the associate, and Bilal Razzak in Bankstown Square in February 2001, after which Bilal Razzak allegedly fired shots at Darwiche's car. Mr Babb said it was alleged Darwiche perceived this as 'a serious threat to his standing in the area' and organised a revenge shooting of Bilal Razzak's house. At a meeting between the families later that month, Darwiche allegedly demanded Bilal Razzak leave the country. Bilal Razzak left for Lebanon in early March after shots were fired at the home of his uncle Frank. But when he returned two months later, nothing had been resolved. The Crown alleges Darwiche was one of two men who forced their way into Bilal Razzak's flat and shot him in the stomach and legs. He survived, but spent several weeks in hospital. The families made a peace agreement: Darwiche allegedly paid compensation to the Razzaks; in return they agreed not to pursue the matter with police. The peace deal lasted two years. But in July 2003 the associate was shot in a butcher's in Bankstown. Darwiche, who was overseas after 'becoming religious', returned to Sydney. He suspected members of the Razzak family, including Bilal's cousin Ziad. Darwich allegedly said: 'They are going to cop it. They are dead. This is it. I'm either going to die or spend the rest of my life in jail,' the associate is expected to testify, Mr Babb said. It is alleged that, in retribution, Darwiche and his brother Abdul shot at the home where Ziad was believed to be staying. When Frank Razzak came outside to investigate, 66 shots were fired at him but he escaped injury. Darwiche and his co-accused allegedly killed Mr Abdul-Razzak two days later. The failed marriage of Mr Abdul-Razzak to Darwiche's sister was another motive for Darwiche to kill him, Mr Babb alleged. Ziad Razzak and Ms Nemra were killed after further tit-for-tat shootings a few weeks later. The trial continues." 4 The publication of the newspaper article prompted counsel appearing for each of the accused in the District Court trial to apply for the discharge of the jury, and the trial judge has decided that he will discharge the jury for reasons published on 20 June 2006. His Honour has not proceeded to discharge the jury yet, in order to afford the Director of Public Prosecutions the opportunity to approach this Court. 5 It has been submitted on behalf of the Director that this Court is empowered under s 5F of the Criminal Appeal Act to make the orders sought by it, and in support of that submission has relied principally upon a decision of this court in R v Munro (unreported, 30 June 1994). In that case it was determined that an order discharging a jury without verdict was properly to be described as an interlocutory order and it was submitted that the reasoning in Munro applies to the present case. 6 The contrary position was asserted by Mr Game of Senior Counsel, who appeared for one of the co-accused, Rabia Abdul-Razzak. His submission was supported by counsel for the other co-accused. Mr Game submitted that the application is premature because as yet there has been no judgment or order given or made by the trial judge. What has happened is that his Honour has published reasons for an order that he proposes to make, subject to any intervention by this Court. 7 Further, Mr Game submitted that there is another hurdle to be overcome, that the order foreshadowed is not an interlocutory order at all, because if it is made it will bring this trial to an end. 8 It is unnecessary to determine whether this Court is empowered by s 5F to make the orders sought because, assuming the necessary jurisdiction exists, the present case is not an occasion for its exercise. 9 The decision taken by the trial judge in relation to the application for the discharge of the jury involves the exercise of a judicial discretion. The principles upon which an appeal against an exercise of discretion is to be determined are, of course, those defined in House v The King (1936) 55 CLR 499, and in particular in the judgment of Dixon, Evatt and McTiernan JJ at 504-505. 10 It has been submitted on behalf of the Director that there has been error in the decision reached in that the judge has failed to give reasons as to why the harm perceived to have been caused by the newspaper article cannot adequately be met by some appropriate direction to the jury. The submission focuses upon the following passage of the reasons of the judge: "I do not think that the real risk of prejudice can be overcome by a direction - especially in the context that I have already given a number of directions along these lines already. Any direction to specifically ignore press reports may lead to the reading of the article and precisely the speculation such a direction is designed to avoid." 11 I do not consider the submission that the judge has not stated his reasons as to why a direction cannot address the problem which has arisen is well founded. 12 The transcript discloses that the Crown Prosecutor invited the judge to direct the jury to ignore anything they may have seen in the press. The judge was asked to tell the jury to put any newspaper report out of their mind as being irrelevant, and to act only on the evidence in the trial and on the directions of law given by the judge. His Honour's response to that as recorded (at T 1717) was this: "I thought about that Mr Crown. I have tried to craft something up over the last hour to see whether I can do anything to retrieve this trial…" 13 Having considered his Honour's reasons in their entirety, it does not seem to me that they manifest any error of approach in the exercise of discretion concerning the discharge application. There are a number of significant features of the reasons as stated: (i) it emerges from a reading of them that the judge had earlier in the course of the trial refused applications to discharge the jury (see pp 1-2 of the reasons); (ii) the analysis of the newspaper article which prompted the discharge applications correctly identifies the prejudicial features of that article insofar as they impacted upon the future conduct of the District Court trial. The Supreme Court trial relates to a crime committed in August 2003. The District Court trial relates to criminal activity allegedly occurring in April 2004. The same families, in an extended sense, are involved in the proceedings in the District Court and in the Supreme Court. In the District Court proceedings however, the trial judge excluded evidence of the feud which it was contended existed between the relevant families; (iii) the judge noted the crucial time of the trial at which the article was published. The publication was after the evidence had closed and during the course of addresses, and the impact of the publication was considered likely to extend for the duration of the trial; (iv) the judge considered that the risk of prejudice was incapable of being overcome by any direction he could give and the prejudice was not because of the actions of the accused or of those representing them; (v) the judge expressly recognised the public interest in having trials of "this nature" disposed of finally and as quickly as possible and he also took express account of the public cost involved. 14 There is no contention advanced that the reasons of the trial judge contain any misstatement of fact, and I consider those reasons contain no misstatement of principle. His Honour referred to the principles of law relevant to the application and in doing so made specific reference to the decision in R v Kaddour (2005) 156 A Crim R 11. In that case reference was made (at [113]) to the decision in John Fairfax Publications Pty Limited v District Court (New South Wales) (2004) 61 NSWLR 344 and to the observations of the Chief Justice about the recognition by trial judges that jurors approach their task according to their oaths. Plainly, the trial judge had in mind in citing Kaddour those remarks by the Chief Justice cited in Kaddour. 15 His Honour concluded the statement of reasons as follows: "Absent particular details of the statements said to constitute that prejudice or matters which can be pointed to as demonstrating that cumulative effect, I did not earlier consider that the earlier applications could succeed on that basis. I did not consider that that evidence or other similar evidence given to any given stage of the trial or what has occurred on four occasions in the course of a five week trial involving a substantial number of witnesses, warranted the discharge of the jury. However, the article which appeared today in my view causes prejudice to the accused which cannot be overcome by a direction being given. That prejudice must also be looked at in the light of the matters I have set out above and the cumulative effect of those matters. The further conduct of the trial in these circumstances would, in my view, constitute a miscarriage of justice to the accused and each of them. Accordingly, I will discharge the jury and set the matter down for a re-trial." 16 Having considered the reasons in their entirety, it is evident that the trial judge carefully weighed up those matters relevant to the exercise of his discretion, and I find no error in the approach his Honour adopted. The judge reached his decision with the benefit of having presided at a lengthy and difficult trial with an appreciation of the tensions associated with it. 17 In my opinion, no error in the exercise of his Honour's discretion has been shown. For these reasons, the order sought vacating the judgment or ruling contemplated by the trial judge should be refused, and the appeal should be dismissed. 18 KIRBY J: I agree with Studdert J. 19 JOHNSON J: I agree with Studdert J. ********** 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.