Regina v Darwiche & Ors [2006] NSWSC 926

New South Wales Supreme Court

CITATION : Regina v Darwiche & Ors [2006] NSWSC 926

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 : 19 April 2006

JUDGMENT OF : Bell J at 1

DECISION : Evidence of Mr W and Mr X to be taken by audio-visual link

CATCHWORDS : Application for evidence to be taken by audiovisual link - criminal trial

LEGISLATION CITED : Evidence (Audio and Audio Visual Links) Act 1998

CASES CITED : R v Basha (1989) 39 A Crim R 337 R v Mainprize [2005] NSWCCA 311

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

FILE NUMBER(S) : SC 2005/992; 2005/1252; 2005/993; 2005/997; 2005/1366

LLoyd Babb / John Pickering (Crown) Angus Webb / Craig Smith (Adnan Darwiche) COUNSEL : Gregory Stanton (El-Zeyat) Phillip Segal (Aouad) Linda McSpedden (Osman)

S Kavanagh (Crown) Mark Klees & Associates (Adnan Darwiche) SOLICITORS : Theo Voros (El-Zeyat) John Krajcik (Aouad) Michael Croke (Osman)

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 2005/1366 Regina v Abbas OSMAN

JUDGMENT 1 BELL J: Each of the accused was arraigned on an indictment containing ten counts on 5 August 2005. Certain of the counts were preferred by the Director of Public Prosecutions ex officio. Each accused moved on notice for orders separating various of the counts. These applications were stood over part-heard to be determined after the evidence of a number of indemnified witnesses had been taken at a hearing of the type contemplated in R v Basha (1989) 39 A Crim R 337. 2 During the course of the voir dire I made a direction pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (the Act) that the evidence of Mr W and Mr X be taken by audio-visual link from a location outside the courtroom. The orders were in each case confined to the evidence that was to be given in the voir dire hearing. These are my reasons for making those directions. 3 On Monday 13 March 2006 Mr W was called to give evidence. At an early point in his cross-examination there was an incident. In response to evidence given by Mr W, one of the accused called out "bullshit" and after this, each of the accused called out remarks predominantly in Arabic. They rose from their seats and presented as agitated and aggressive. I directed that they be removed from the dock. During this incident Mr W said some words in Arabic. 4 The proceedings were adjourned on the Crown's application so that a statement could be obtained from Mr W. The statement is exhibit C. Mr W stated that among the things called out to him by the accused were offensive remarks that convey to an Arabic speaker a serious threat. I accept that is so. Mr W expressed fears about continuing to give his evidence in the presence of the accused. 5 Mr Stanton, who has some familiarity with the Arabic language, informed the Court that from such of the exchange that he understood, it was open to say that Mr W "gave as good as he got". I did not accept that submission. The incident was initiated by the accused and their presentation throughout it was aggressive and intimidating. I accepted that Mr W felt threatened by the conduct of the accused. 6 Mr X was called to give evidence on 15 March 2006. He, like Mr W, is an individual who has been involved in criminal activity in southwestern Sydney. Each has been given an indemnity by the Attorney General. Mr X was expected to give evidence of admissions made in his presence by two of the accused in relation to a number of the offences charged in the indictment. 7 Mr X was called on the afternoon of 15 March 2006. He refused to be sworn or affirmed, stating that he feared for his life. He asserted that he had received threats to his daughter and other children and that he had proof of the making of them. He said this: I am not making a joke of the court or anything but I have got serious threats against myself, my kids and my family and I am not going to risk their life for anything (T 107). 8 I stood the proceedings over until the following morning to give Mr X an opportunity to obtain legal advice, after warning him of the consequences that may follow from a continued refusal to give evidence. 9 The following morning Mr O'Sullivan, of counsel, appeared and informed the Court that he had had provided advice to Mr X. Mr X was called and affirmed and gave short evidence in chief, identifying a number of statements that he had made to the police. Throughout his evidence his head was bowed and he avoided eye contact with the accused. His answers were barely audible. When the Court resumed after the morning adjournment I was informed that Mr X had fainted after leaving the court, striking his head and that an ambulance had been summonsed. 10 The proceedings were stood down until 2:00 pm. On the resumption of the hearing I was informed that Mr X was present at court and that he was complaining of a migraine style headache and did not wish to continue his evidence that day. 11 The Crown Prosecutor made an application pursuant to s 5B of the Act that the balance of Mr X's evidence be taken by audio-visual link. This application was opposed by counsel for Adnan Darwiche and Naseam El Zeyat. 12 The Crown tendered the Ambulance Service Patient Health Care Record containing details of an attendance on Mr X that day. The history given by Mr X to the ambulance officers included that Mr X had not eaten for almost twenty-four hours and, "is under considerable stress due to court proceedings". A physical examination revealed a minor haematoma to the occipital lobe. Mr X had refused a transfer to hospital and had been left in the care of the police officers. 13 Detective Senior Constable Nagle gave evidence on the application. She had examined a number of text messages that were recorded on a mobile phone that Mr X had handed to her. The number of the mobile phone was the number that the police had been given as Mr X's contact mobile telephone number. He had been contacted by the police on this number over a period of some time. Detective Nagle understood that other police associated with the investigation had been informed by Mr X of the receipt of threatening text messages on 15 March. Her first knowledge of the matter was on the day of these events. 14 Detective Nagle said she had read the following text messages on the phone handed to her by Mr X: 13 March 2006 – 9:24 pm – "how's Caroline"; 14 March 2006 - 6:50 pm – "it's going to be you or Caroline, you'll find out this week dog"; 14 March 2006 – 9:43 pm – "I'm going to fuck your wife, you dog, and your wife's family starting with Angela, she's first"; 15 March 2006 – 9:56 pm – "We have dramas, going to fuck you and your whole family"; 16 March 2006 – 2:09 pm – "Don't do it, I am telling you or I am going to fuck you and your whole family one by one".