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". Detective Nagle said that all the messages had been transmitted from the same Telstra payphone. She understood the person, Caroline, to be Mr X's daughter. She did not know the significance of the person, Angela. 15 It is to be noted that the last of the text messages was received at a time when Mr X was present at the Downing Centre court complex. 16 Stacey Romeo, a solicitor with the Officer of the Director of Public Prosecutions, with the carriage of the prosecution, gave evidence of her discussions with Mr X on the afternoon of 16 March. He conveyed to her that he was extremely distressed about the prospect of giving evidence in open court as the result of threats that had been made to him outside court. He claimed his stress was also as the result of being present in the same room as the accused. He believed that the experience would be less stressful if his evidence was given by audio-visual link and that he would be able to concentrate better. 17 Section 5B of the Act makes provision for a court, either of its own motion or on the application of a party, to direct that a person give evidence by audiovisual link from a place other than the courtroom. Section 5B(2) provides as follows: (2) The court must not make such a direction if: (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or (c) the court is satisfied that the direction would be unfair to the party, or (d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission. … (3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or the making of a submission to the court by audio link or audiovisual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so. 18 The Crown bore the onus of establishing that it was in the interests of the administration of justice for the balance of the evidence of Mr W and Mr X to be taken by audio-visual link. 19 Mr Stanton submitted that Mr X is a person with a lengthy criminal record, including for perjury. He observed that it was well open to Mr X to have orchestrated the sending of the text messages or that persons unconnected with the accused may have been responsible for conveying threats to Mr X that are not related to these proceedings. I accepted that Mr X may have staged the threats. There was no evidence to suggest that he had. Mr X's evidence to which I have referred at paragraph [7] above was that he considered the threats related to his role as a witness in these proceedings. This was a relevant consideration in my determination. I was not concerned with whether as a matter of fact the threats were made in connection with these proceedings. 20 There was no evidence that the accused were responsible for any threats made to Mr X. I approached the application on the basis that there was evidence that Mr X entertained fears for his safety and the safety of his family in connection with giving evidence against the accused and that those fears had occasioned considerable stress to Mr X. 21 The Crown submitted that there was the risk of further outbursts like the one that took place on 13 March 2006. The conduct of the voir dire had been attended by considerable delay. In the Crown's submission, it was in the interests of justice that Mr X give his evidence without the risk of further interruption. 22 In making the direction with respect to Mr X and Mr W, I took into account that the evidence was being taken in the absence of the jury. The purpose of taking the evidence of these witnesses on the voir dire was to remedy any disadvantage to the accused flowing from the circumstance that the counts relating to the Lawford Street incident were preferred ex officio, and that while the accused were committed for trial in respect of the counts relating to the murder of Ahmed Fahda, Mr X did not give evidence at the committal hearing although an order had been made for his oral examination on that occasion. There was no prejudice to the accused arising from the evidence being given by audio-visual link at the voir dire. No question of assessing the credibility of the witnesses arose and there was no need to address considerations of any adverse inference being drawn by reason of the evidence being taken in this way. 23 I considered it in the interests of justice that the evidence on the voir dire be taken without further delay. The risk of an outburst, such as the earlier one, was, to my mind, greater at a hearing in the absence of a jury than may be the case at a trial, where there is an incentive to the accused to exercise self-control. 24 Both Mr Webb and Mr Stanton submitted that taking the evidence of the witness of Mr X by audio-visual link would be unfair to their clients because of, what was submitted to be, the right to confront one's accuser in open court. I did not consider that the accused were being deprived of any such right by the evidence being taken by audio-visual link: R v Mainprize [2005] NSWCCA 311. 25 I considered that Mr W and Mr X each held fears about giving evidence in the presence of the accused. I was mindful that their evidence was being taken on a voir dire and that they would be required to give evidence again at the trial. I considered the interests of justice included ameliorating the strain imposed upon each of them in being required to give evidence in these proceedings on more than one occasion. ********** 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.