R v El-Zeyat and Aouad [2012] NSWSC 340

Supreme Court New South Wales

Medium Neutral Citation: R v El-Zeyat and Aouad [2012] NSWSC 340 Hearing dates: 30 March 2012 Decision date: 26 April 2012 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: I recuse myself from sitting as the trial judge at the retrial of each Accused Catchwords: CRIMINAL LAW - murder trial - retrial of Accused following successful appeal against conviction to Court of Criminal Appeal - judge allocated retrial had been member of Court of Criminal Appeal which allowed appeal and dismissed appeal against conviction by each Accused and other persons in related appeal - judgment of judge in related appeal made findings that evidence of persons proffered as fresh evidence was not credible or plausible - Accused likely to call those persons as witnesses at retrial - application that judge recuse himself at retrial - whether reasonable apprehension of bias by reason of prejudgment - application of principles in context of trial by jury - exceptional circumstances surrounding application - judge recuses himself Legislation Cited: Evidence Act 1995 Criminal Appeal Act 1912 Cases Cited: El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411

Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Concrete Pty Limited v Parramatta Design & Developments Pty Limited [2006] HCA 55; 229 CLR 577 Antoun v The Queen [2006] HCA 2; 80 ALJR 497 R v Kearns [2003] NSWCCA 367 R v Lee [2005] QCA 122 R v Sonnet (No. 3) [2007] VSC 287 Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 Cesan v The Queen [2008] HCA 52; 236 CLR 358 Osman v R [2006] NSWCCA 196 Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 CUR24 v Director of Public Prosecutions [2012] NSWCA 65 Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 El Zayet v The Queen; Aouad v The Queen, Darwiche v The Queen; Osman v The Queen [2011] HCATrans 342 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 86 ALJR 14 British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283 Cornwell v The Queen [2007] HCA 12; 231 CLR 260 Texts Cited: --- Category: Interlocutory applications Parties: Nasaem El-Zeyat (Accused) Ramzi Aouad (Accused) Regina (Crown) Representation: Counsel: Mr MC Ramage QC; Mr IS McLachlan (El-Zeyat) Mr CC Waterstreet; Ms NS Carroll (Aouad) Mr CC Patrick (Crown) Solicitors: Sydney Criminal Lawyers (El-Zeyat) George Sten & Co (Aouad) Solicitor for Public Prosecutions (Crown) File Number(s): 2005/2620 (El-Zeyat) 2005/2678 (Aouad)