Aouad and El-Zeyat v R

BASSAM SAID'S EVIDENCE 7As at 30 October 2003 Bassam Said had known Tony Haddad and the appellant El-Zeyat for about five years. He had known of the deceased Ahmed Fahda but had not known him personally. 8On the morning of 30 October 2003 Bassam Said received a telephone call from Tony Haddad, who asked Bassam Said to come to his house and pick him up. Bassam Said drove to Tony Haddad's place in the Pajero, which was half owned by Bassam Said and half owned by Tony Haddad. Bassam Said picked up Tony Haddad and they drove to Wiley Park. 9At Wiley Park they had a meeting with Adnan Darwiche and the appellant El-Zeyat. At Wiley Park Bassam Said merely said hello to Darwiche and El-Zeyat and had no further conversation with either of them. 10Bassam Said drove off in the Pajero with El-Zeyat as a passenger. In Punchbowl Bassam Said saw Ahmed Fahda and his brother Douse Fahda in a vehicle. 11Bassam Said stopped the Pajero. El-Zeyat got out of the Pajero and Ahmed Fahda got into the Pajero and asked Bassam Said to take him to Tony Haddad's house. 12Bassam Said drove Ahmed Fahda to Tony Haddad's mother-in-law's house. He sounded the horn of the Pajero but no one came out of the house. Ahmed Fahda then asked Bassam Said to give him a lift to where his car was parked in Punchbowl. 13The Pajero "started conking out" of petrol. The engine stopped. Ahmed Fahda got out of the Pajero and pushed it all the way to a service station, while Bassam Said steered the vehicle, also pushing (apparently with his foot). 14The service station proprietor came out and helped push the Pajero into the service station. Bassam Said started getting petrol for the Pajero from a bowser, while Ahmed Fahda was looking under the bonnet of the Pajero, which Bassam Said had raised. 15Bassam Said gave further evidence as follows: Q. What happened next? A. I finished filling up the petrol. By the time I was looking up to where Mr Fahda was I heard gun shots and I could see his body shaking and -- Q. Did you recognise either or one of those people doing the shooting? A. Yes. Q. Who did you see? A. Nasaem El-Zeyat and Ramzi Aouad. Q. Were you able to see where the gun shots were coming from? A. I seen two people firing guns. 16As at 30 October 2003 Bassam Said did not know the appellant Aouad. He subsequently found out that the shooter other than El-Zeyat was Aouad, when Aouad introduced himself to Bassam Said "days after the event". 17When the shooting started, Bassam Said "hit the floor" and ran to the back of the Pajero. The shooting stopped. Bassam Said saw that Ahmed Fahda was lying on the ground and he asked a person at the service station to call an ambulance. The two shooters "walked off or ran off, I don't know". 18Bassam Said was "shocked" at what had happened. After some indecision, he got back into the Pajero and drove off to his house in Bettina Court. Bassam Said was "going off my head". Tony Haddad was at Bassam Said's house, when Bassam Said arrived home. 19About two minutes later the Commodore motor vehicle arrived. Bassam Said saw the two appellants in the front yard of his house. El-Zeyat wanted to park the Commodore in the garage at Bassam Said's house and El-Zeyat drove the Commodore into the garage. Aouad and El-Zeyat were holding guns, which they "unclogged' and they then disappeared. 20Bassam Said then drove the Pajero to a friend's place. Bassam Said was asked by the Crown Prosecutor whether he remembered going to Menai on 30 October 2003. He answered, "Probably, I can't remember". After some further questions and answers, the Crown Prosecutor made a successful application under s 38 of the Evidence Act for leave to cross-examine Bassam Said. 21In cross-examination by the Crown Bassam Said agreed that there had been a meeting at which he was present at Menai on the evening of 30 October 2003. At the meeting he had been told by El-Zeyat to go to the police and make a statement "saying it was not them". 22On 5 November 2003 Bassam Said was arrested. He was told that he was under arrest for the murder of Ahmed Fahda. He was taken to a police station and questioned. He also made a statement, which he described in his evidence at the trial as a "bullshit statement" (Bassam Said's first statement). 23In the first statement Bassam Said said that he did not recognise either of the shooters. He made the "bullshit" statement, because "that is what they (the accused) wanted". 24As Bassam Said was leaving the police station on 5 November 2003, he was served with a summons to attend the New South Wales Crime Commission. He attended the Crime Commission and was questioned. He swore to give truthful evidence but told a number of lies. He told the Crime Commission that the vehicle he had been driving was not his. 25Bassam Said made a second statement on 3 June 2004. At the time of making this statement he was in custody, bail refused, on a charge of having been an accessory after the fact to the murder of Ahmed Fahda. 26While in custody he had been moved to the Special Purposes Centre at Long Bay and while there he had communicated regularly with the Hannouf brothers. He had learnt from police that the Hannouf brothers were providing assistance to the police and both Wahib Hannouf and Haissam Hannouf confirmed this. Bassam Said denied in his evidence that he and the Hannouf brothers had spoken to each other about the evidence they would give. 27Bassam Said was told by police that, if he made a statement, the charge against him would be dropped or the police would not oppose bail or he would receive an indemnity against prosecution on the charge of having been an accessory. 28In the second statement of 3 June 2004 Bassam Said for the first time identified Aouad as having been one of the shooters. He said in the statement that he had not been able to properly see the second shooter. 29On 12 July 2004 Bassam Said made a third statement. He was then still in custody. In the third statement he, for the first time, identified El-Zeyat as having been one of the shooters. He said that he had not been prepared to identify El-Zeyat earlier, because of threats made to him and also because El-Zeyat was a friend. 30In August 2004 Bassam Said was released on bail and in September 2004 the charge of having been an accessory was discontinued. 31Bassam Said made a final statement on 16 December 2004. He was further interviewed by police on 5 April 2006 and 2 May 2006.He gave evidence in the committal proceedings on 13 May 2006. 32Bassam Said received or sought a number of benefits for cooperating with the police. Before he made the second statement he was promised that the information which would be contained in the statement would not be used in any criminal proceedings against him. He asked for protection for himself and his family and a weekly wage of $500 for a period of a year and it would seem that these benefits were granted. Bassam Said also demanded that criminal charges against one of his brothers, whose whereabouts were unknown, be discontinued but this did not happen. 33At the time Bassam Said gave evidence at the trial the Crime Commission was paying the rent on his family home. After he had completed giving evidence, he was to be provided with an overseas holiday, as part of a witness protection programme. 34Although he received the benefits I have referred to, Bassam Said did not receive any indemnity against prosecution for any alleged offence. 35Bassam Said was aware that the Pajero was a "rebirth" vehicle. A criminal charge against him in relation to the Pajero was discontinued. Bassam Said admitted in his evidence at the trial that he and Tony Haddad had been buying damaged vehicles and fitting them with stolen parts. 36In December 2005 Bassam Said had been involved with Tony Haddad and another man, in what was described at the trial as a "rip" (that is a drug rip-off). Said drove Haddad to a place where an unknown man gave Haddad a parcel. Said did not know what was in the parcel and did not ask any questions, apart from asking Haddad what was in the parcel, to which Haddad answered that he did not know. Bassam Said thought it was likely that the transaction was illegal. Bassam Said received $20,000 for his involvement. 37Bassam Said refused to come to court to give evidence at the trial. Warrants for his arrest for him to be brought to court to give evidence were issued, including a warrant of 13 April 2006. Bassam Said agreed in cross-examination at the trial that he was prepared to take steps to avoid execution of the warrant "for the safety of my family". Bassam Said said that he had been at his home but police had not come to his home to execute the warrant. 38Bassam Said gave evidence that he had intended to attend court voluntarily on 2 May 2006. However, he said that in the early hours of the morning of that day, while he was travelling from Kings Cross to his home, a male person wearing a balaclava had opened the door of his vehicle while it was stationary and had shot him in the leg. Bassam Said telephoned an emergency number and drove himself to Sutherland Hospital. While he was at Sutherland Hospital he was arrested pursuant to the warrant and he remained in police custody until after he had completed giving evidence.

TONY HADDAD'S EVIDENCE 39As at 30 October 2003 Tony Haddad had known all of Ahmed Fahda, Ramzi Aouad known as "Fidel", Nasaem El-Zeyat known as "Erdt", Adnan Darwiche, Mohammed Touma and Bassam Said for a number of years. 40As at 30 October 2003 Tony Haddad was living at an address in Condell Park. On the morning of that day he received a telephone call from a man named Jalal Alameddine, who told him that Ahmed Fahda was at his house and wanted to speak to Tony Haddad. Tony Haddad had a conversation on the telephone with Ahmed Fahda in which Ahmed Fahda said, "I have to see you". Tony Haddad said that he was "a bit busy" and that Ahmed Fahda should call back later in the day. 41Tony Haddad then had a telephone conversation with El-Zeyat. In the conversation Tony Haddad said that he was going to see Ahmed Fahda. El-Zeyat said that Tony Haddad should wait until El-Zeyat came over. El- Zeyat said "Don't meet up with him. He is a dirty cunt". 42Bassam Said arrived at Tony Haddad's home, driving the Pajero. Tony Haddad got in the Pajero and they drove off. While in the Pajero Tony Haddad received a telephone call from El-Zeyat, who said, "I am on my way. Meet me at Wiley Park park". 43Bassam Said and Tony Haddad stopped at the park, where they saw El-Zeyat. El-Zeyat was carrying a gun on his hip. 44Tony Haddad also saw Adnan Darwiche in the park. El-Zeyat and Darwiche had a conversation with each other, which Tony Haddad was unable to hear. 45Darwiche said to Tony Haddad, "What does Ahmed (Fahda) want from you?" and Tony Haddad replied, "I don't know". Darwiche said, "Fidel's been looking for him". 46El-Zeyat and Darwiche had a further conversation, which Tony Haddad was unable to hear. 47Ahmed Fahda telephoned Tony Haddad and said that he would meet Tony Haddad at his parents' place in Punchbowl. When the conversation ended one of El-Zeyat and Darwiche asked, "Was that him?" and Tony Haddad replied, "Yeah, he is at my parents' house". 48El-Zeyat asked Bassam Said if he could give El-Zeyat a lift and the two left together in the Pajero. Darwiche and Tony Haddad travelled to Bassam Said's house at Bettina Court, Greenacre. 49Tony Haddad tried to telephone El-Zeyat but could not establish contact. Eventually he spoke to El-Zeyat. Tony Haddad's evidence continued:- "I said, "Where are you? I am at Bass' house". He said, "I am doing something, I am doing something. I will ring you back. I won't be long"". 50Tony Haddad heard the sound of gunshots. Bassam Said's house was about two kilometres from the service station in Punchbowl Road. Darwiche said, "Ring up the boys". Tony Haddad tried without success to ring El-Zeyat. He telephoned Bassam Said and "he was screaming off his head". 51The Pajero arrived at the house. Bassam Said parked the Pajero outside the house. Bassam Said "was jumping out, banging his head with his hands". His face was white. Darwiche told Bassam Said to park the Pajero properly and Bassam Said parked the Pajero on the driveway in front of the garage. 52A Commodore vehicle then arrived at the house. Tony Haddad's evidence continued:- "Erdt and Fidel jumped out and started running towards the house and Mohammed Touma came out and he was running too". 53El-Zeyat and Aouad "clocked" guns by "pulling the top back". When they did this, one bullet fell on the floor. The guns were then wrapped in a jumper. About 10 to 15 minutes had passed from the time that Tony Haddad had heard the sound of gunshots. 54Darwiche said, "Move the car". The Pajero was moved and the Commodore was parked in the garage. El-Zeyat said, "I'll get rid of it later". 55El-Zeyat, Aouad and Darwiche got into Darwiche's car and left. Bassam Said and Tony Haddad walked to Bassam Said's parents' house nearby. Tony Haddad made a telephone call and arranged with his father to drive him to his home. 56At Tony Haddad's house Bassam Said was still pale and white. He sat on the floor with his hands over his face. 57El-Zeyat arrived at Tony Haddad's house. He said to Bassam Said, "What's the matter?" 58Later Tony Haddad travelled by car to Menai. On the way El-Zeyat, who was in the car, received a telephone call from Darwiche. 59The car travelled to McDonalds at Menai, where there was a meeting with Darwiche. Darwiche said to El-Zeyat "We got to talk". However, Darwiche said that certain other persons at McDonalds looked like police and that they should go elsewhere to talk. 60Darwiche, El-Zeyat, Tony Haddad, Bassam Said and another man all travelled in the same car to a small park. They walked into the park. Tony Haddad's evidence continued:- Q. What conversation then occurred? A. Erdt was jumping around like a monkey. He was screaming like saying that he dropped him, he dropped him. Q. Can as best you can I said, he said? A. He said, "I dropped him. I dropped him." I said, "Who?" He said, "Ahmed, I know it's Ahmed, Ahmed Fahda." I said, "Did you kill him?" He said, "Yeah." ... Q. What more was said, again, I said, he said? A. I said to him, I said to him, "Did you shoot him?" He said, "Yeah." "Who was with you?" He said, "Me, Eddie, Fidel." 61Darwiche said to Bassam Said:- "Mate, I don't know, just make sure you don't say nothing about the boys. If you say anything about them, you know, going to be problems." 62Darwiche also said to Bassam Said :- "If the police ask you who done it, tell them it wasn't the Darwiche family". 63Darwiche also said to Bassam Said:- "Make sure you don't go to the cops, and, you know, if you do, we'll get you. We'll get your family, if you know, I wouldn't." He said, "I have to say this to you so you know where I stand." 64Bassam Said said:- "I am not going to the police. Don't worry about it". 65The group then drove back to McDonalds at Menai. Darwiche got out. The other four El-Zeyat, Tony Haddad, Bassam Said and the other man drove to Tony Haddad's house at Condell Park. 66Tony Haddad went to a hotel where he spent the night of 30 October 2003. 67The following day at Tony Haddad's home there was a conversation. Darwiche, El-Zeyat, Aouad, Mohammed Touma and Tony Haddad were present. In this conversation Aouad said, "I am worried if the camera got my tattoo". 68Tony Haddad's evidence continued:- Fidel said, "Anyway we got the cunt" and then Erdt said, "We got him, we fucked his mum, I emptied the clip into him: and Fidel said "Yeah, me too". 69On 31 October 2003 Ahmed Fahda's brother Hussain Fahda and some other men assaulted Tony Haddad and attempted to kidnap him. Tony Haddad did not reveal who had killed Ahmed Fahda. He did not report the assault to the police. 70In 2004 Tony Haddad was arrested on a charge of perjury and refused bail. For a period of two to three months Haddad, when questioned by police, denied any knowledge of the shooting of Ahmed Fahda. He was told by police that he would be charged with having been an accessory after the fact to the murder of Ahmed Fahda. 71While he was still in custody Tony Haddad learnt that Hussain Fahda was in the same gaol. He became concerned for his own safety and decided that he would assist the authorities. 72Haddad had a first meeting with representatives of the Crime Commission. There was discussion about his providing assistance and his being granted an indemnity. Haddad made statements to the police between July 2004 and December 2004. He was promised an indemnity against "everything", including the perjury charge. However, he pleaded guilty to the perjury charge because he got tired of waiting for the indemnity to be actually granted. 73In November 2004 Haddad was sentenced for the offence of perjury to which he had pleaded guilty. The sentencing judge said in her remarks that she was allowing a discount of 60 per cent for the plea of guilty and the assistance provided and to be provided by Haddad in this matter and other unrelated matters. 74In May 2005 Haddad refused to give evidence in the committal proceedings, because the indemnity had not yet been granted. 75An indemnity against prosecution was finally granted on 13 March 2006. Haddad was indemnified against alleged firearms offences, offences of stealing and receiving stolen motor vehicles and stolen motor vehicle parts and offences of concealing a number of serious indictable offences, including several murders. He had been charged only with the firearms offences. 76An affidavit by an officer of the Crime Commission disclosed the financial benefits Haddad had received for his assistance being payments of $50,000 and $11,086, payments of $300 per week since December 2005 and rental payments. Haddad admitted in cross-examination at the trial that his house had been partly purchased with funds from criminal activities. The Crime Commission had not brought any proceeds of crime proceedings against him. 77In November 2005 Haddad had been involved in a "rip" (a drug rip off), in which he deceived a drug dealer into handing over $300,000 (although Haddad did not know the amount at the time), in exchange for a suitcase. Haddad did not know what was in the suitcase but did not believe that it contained the drugs it was supposed to contain. Haddad performed the "rip" at the request of a friend. He said that he was asked to do it, because he was practised at "conning" people. 78Haddad was told by the authorities that he would not be charged with any offence arising out of the "rip". At the time of the trial the indemnity had not been extended to any offence in relation to the "rip". 79Warrants were issued for the arrest of Tony Haddad to ensure that he gave evidence at the trial. 80On 23 March 2006 Haddad made a document, which became a defence exhibit at the trial (Exhibit 3), in which he said, "Since I made my statement (to the police) I can no longer confirm if my statement is true and correct. This has been written of my own free will". 81In his evidence at the trial Tony Haddad said that the contents of Exhibit 3 were completely untruthful. He referred to pressure to which he had been subjected by a number of persons.

WAHIB HANNOUF'S EVIDENCE 82As at 30 October 2003 Wahib Hannouf knew the appellant Aouad. He had first met Aouad about two years before and had seen him seven to ten times during those two years, for periods of up to an hour. 83As at 30 October 2003 Wahib Hannouf knew El-Zeyat. He had first met El-Zeyat about 6 years before and had seen him many times, perhaps 40 to 50 times. 84As at 30 October 2003 Wahib Hannouf knew Ahmed Fahda, having first met him in the year 2000. Ahmed Fahda had had a dispute with relatives of Wahib Hannouf and had "shot" at the family home. 85On 30 October 2003 Wahib Hannouf was driving a vehicle in a generally north easterly direction in Punchbowl Road. His brother Haissam Hannouf was a passenger in the vehicle. Wahib Hannouf was driving on the opposite side of Punchbowl Road from the service station, near the intersection of Punchbowl Road and Dudley Street. He was travelling "really slow". 86Wahib Hannouf looked into the service station and "I've seen Ahmed (Fahda) at the back of a 4-wheel drive". Wahib Hannouf's evidence continued:- "When I seen him I slowed down even more because he was in gaol because, you know, because my Dad put a statement against him and I heard he has been out of gaol so I wanted to see if it was really him. So I slowed down and Ahmed was actually walking towards the front at that stage". 87The bonnet of the 4-wheel drive vehicle was opened. 88Wahib Hannouf saw a blue Commodore vehicle and he saw Aouad and El-Zeyat, who he referred to as "Fidel" and "Erdt", walking towards the service station and Ahmed Fahda. Both men were wearing hooded jumpers. Wahib Hannouf's evidence continued:- "I seen two Glocks, they pulled out two Glocks from their pants and they just kept walking towards Ahmed, they sort of went behind Ahmed". 89The two men were walking on the footpath outside the service station. They walked past where Ahmed Fahda was standing. They were walking in the opposite direction to that in which Wahib Hannouf's vehicle was travelling. 90Wahib Hannouf's evidence continued:- "Ahmed was in front of the 4-wheel drive and they were actually behind him, that is when I wanted to park and that is when I heard the shots". 91Wahib Hannouf was not still looking at the service station when he heard the shots, because he was driving and had to steer his vehicle. 92The Commodore started moving, either just before the shots or when the shots were happening. There was only one person in the Commodore. 93Haissam Hannouf told Wahib Hannouf to "take off". Wahib Hannouf turned into a side street and stopped. He said to his brother, "I want to go back and see what happened". Haissam Hannouf said that he did not want to go back. Haissam Hannouf got out of the vehicle. 94Wahib Hannouf drove the vehicle back to the vicinity of the service station and parked it in Dudley Street. He remained in the area for about 40 minutes. 95Wahib Hannouf gave evidence of a number of incidents between the Hannouf family and the Fahda family. 96In about 2000 Ahmed Fahda had demanded $50,000 from Wahib Hannouf's brothers in relation to a vehicle. Ahmed Fahda threatened to shoot at the Hannouf family home. The Hannouf family was in fear of Ahmed Fahda and obtained guns to protect themselves. The issue was resolved, when it was explained to Ahmed Fahda that the Hannoufs had had nothing to do with the vehicle in question. 97In 2001 Ahmed Fahda had a dispute with cousins of Wahib Hannouf. Ahmed Fahda demanded that Wahib Hannouf present his cousins to Ahmed Fahda, so that Ahmed Fahda could shoot them. Wahib Hannouf refused. Ahmed Fahda sent his father to speak to Wahib Hannouf's father. Ahmed Fahda arrived with his brother and started shooting. Wahib Hannouf was not injured. 98At the trial there was evidence from a police officer that enquiries into this incident were still proceeding but the police had difficulty in accepting the Hannouf brothers' version of what had happened. 99Wahib Hannouf was aware that Ahmed Fahda had been in prison from 2002 to sometime in 2003. Although it was his understanding that all issues between the two families had been resolved, some members of his family had gone overseas to avoid any reprisals which might take place after Ahmed Fahda was released from gaol. 100Wahib Hannouf was granted an indemnity against prosecution for offences of armed robbery, kidnapping, aggravated breaking, entering and stealing, demanding property with menaces and drug offences. Wahib Hannouf denied that he had committed any of the alleged offences referred to in the indemnity. He did, however, admit that he had bought and on-sold Sudafed tablets so that others could manufacture amphetamine. 101Wahib Hannouf made a statement to police in February 2004, before receiving the indemnity, although he made the statement on the understanding that he would be receiving an indemnity. 102Wahib Hannouf had made an earlier statement to police on 13 November 2003. In this statement he told police that he had been travelling on Punchbowl Road on 30 October 2003 and had parked his vehicle in Dudley Street. However, he did not tell police that he had seen the two appellants and did not describe the events which he had witnessed, because he was concerned about the repercussions, if he did so. He also omitted disclosing the presence of his brother Haissam Hannouf, because his brother did not want to be involved. Wahib Hannouf said in this statement that he had never previously met Ahmed Fahda. He also omitted to tell police that he had had problems with the Fahda family. 103Subsequently, the Hannouf brothers Wahib Hannouf, Haissam Hannouf and another brother (all of whom were in gaol) agreed that they would speak to the Crime Commission. 104Wahib Hannouf revealed to a police officer that one of the gunmen had been El-Zeyat. He told the police officer that he would only give a brief version of events, until he knew what benefits he would receive. He declined to sign a statement until he knew that he would get an indemnity. He was told that it was up to the Attorney-General whether an indemnity would be granted. 105Wahib Hannouf subsequently made a comprehensive statement to police. 106Wahib Hannouf gave evidence that the New South Wales Crime Commission had seized property and money belonging to his family, worth approximately $1.5 million. Wahib Hannouf admitted that some of the money and property had been obtained through criminal activities. He had begun negotiating for the return of the property and money from the time of his arrest and the Crime Commission had agreed that the money and property would be returned, once Wahib Hannouf had given evidence. 107Wahib Hannouf agreed that he and his brothers had been in custody at the same time as Tony Haddad. He denied that he and his brothers had discussed with Haddad the information they would provide to police. By the time of his custody Wahib Hannouf had already made his comprehensive statement. Wahib Hannouf denied disc u ssing the events of 30 October 2003 with Bassam Said.

HAISSAM HANNOUF'S EVIDENCE 108Haissam Hannouf was a qualified mechanic who had worked at service stations. 109As at 30 October 2003 he had known El-Zeyat for about 4-5 years during which he had seen him somewhere between five to ten times, the longest period being about five minutes. He also knew Ahmed Fadha and Mohammed Touma, who he referred to as "Mitch". As at 30 October 2003 he did not know the appellant Aouad. 110There had been trouble between Ahmed Fahda and members of Haissam Hannouf's family before 30 October 2003. "He shot our place ... him and his brother". 111On another occasion in about 2000 Haissam Hannouf had refused to give Ahmed Fahda a certificate for the registration of a vehicle, without first inspecting the vehicle. 112On 30 October 2003 Haissam Hannouf was travelling as a passenger in a vehicle being driven by his brother Wahib Hannouf in a north-easterly direction in Punchbowl Road. He was travelling with his brother for the purpose of assisting his brother in renovating a house. 113Haissam Hannouf's evidence continued:- Q. What happened when you were driving on Punchbowl Road? A. My brother saw Ahmed Fahda. Q. What did your brother said to you? A. He said, "Look, there is Ahmed Fahda, in the service station". Q. What did you say to him? A. I looked and I said, "Yeah, it is him. It is true what people are saying. Like, he got out of gaol". 114Ahmed Fahda was in the service station on Punchbowl Road near Dudley Street. He was standing close to a Pajero 4-wheel drive vehicle. Another man was standing about two metres away from Ahmed Fahda and close to the Pajero. The bonnet of the Pajero was opened. 115Haissam Hannouf's evidence continued:- "Then I seen - we seen Erdt and Fidel were walking on the footpath and walking towards the service station". 116Haissam Hannouf recognised the person he named as Erdt as being Nasaem El-Zeyat. He did not know who the other person was. He asked his brother, "Who is the other person?" and Wahib Hannouf said "That's Fidel". 117Haissam Hannouf's evidence continued:- "I seen them putting hoods on and they got their guns out and walking quickly towards the service station". 118The guns the two men were carrying were black in colour and looked like police guns. 119The two gunmen approached Ahmed Fahda who was in front of the Pajero looking inside the bonnet "and shot him from the back" at a range of about two to 3 metres. "I could see Erdt and Fidel shooting Ahmed Fahda". Ahmed Fahda fell to the ground. The two men continued shooting after Ahmed Fahda fell. 120Haissam Hannouf's evidence continued:- "I told my brother to take off ... before we get ...shot by any bullets ... My brother took off and I was looking back and there was a blue Commodore and I heard it ... taking off quickly". 121The Commodore moved in the opposite direction to that in which the Hannouf brothers were travelling. Haissam Hannouf had first seen the Commodore when it was stationary near the service station. He recognised the driver of the Commodore as being Mohammed Touma ("Mitch"). 122Wahib Hannouf turned off Punchbowl Road into a side street. Wahib Hannouf said that he wanted to go back to the scene of the shooting. Haissam Hannouf did not want to go with him. Haissam Hannouf got out of the car and returned to his home. 123Haissam Hannouf received an indemnity against prosecution for a number of offences, including armed robbery, kidnapping, aggravated breaking entering and stealing, demanding property with menaces and knowingly taking part in the manufacture of a prohibited drug. 124Haissam Hannouf agreed in cross-examination that he would not have assisted the authorities, if the indemnity had not been granted and if the property of his family which the Crime Commission had seized under proceeds of crime legislation had not been returned. He said that the indemnity was required, because it was dangerous for him and his brother to remain in gaol. 125Haissam Hannouf and his brothers had been in the same gaol. Wahib Hannouf told his brothers that he was going to assist the authorities and all the brothers decided that they should provide assistance, because, if they did not do so, they would remain in gaol and be at risk of reprisals. Haissam Hannouf acted as spokesman for the brothers in discussing with representatives of the Crime Commission the granting of indemnities. 126Soon after the shooting Haissam Hannouf and Wahib Hannouf discussed what Wahib Hannouf would say, if questioned by Police about his car being in Dudley Street after the shooting. Haissam Hannouf encouraged Wahib Hannouf not to tell police that they had been together in the car driving along Punchbowl Road and to tell police that he had not seen anything. Haissam Hannouf said these things because he did not want the lives of himself and his brother threatened by a member of the Fahda family. 127Haissam Hannouf agreed in cross-examination that he had discussed with Wahib Hannouf the version of events which they would give to the Crime Commission.

KHALED TALEB'S EVIDENCE 128A man named Khaled Taleb gave evidence that in 2003 he knew both the appellants and Adnan Darwiche. 129On an occasion after 20 August 2003 but before the shooting the appellant Aouad visited Khaled Taleb at his home. Aouad told Khaled Taleb that he had split up with his wife Donna Fahda, who was a sister of Ahmed Fahda, and it "looks like this time it's for good" and "Donna's brothers are going to come after me, going to fucking pop me". Khaled Taleb gave evidence that "pop" meant to "shoot". 130Khaled Taleb received an indemnity against prosecution for a large number of alleged offences, including alleged offences of wounding, assaulting and firearms offences and being involved in murders.

EVIDENCE OF OTHER CROWN WITNESSES ABOUT THE SHOOTING

MICHAEL RAHMAN'S EVIDENCE 131A witness using the pseudonym Michael Rahman gave evidence. At some time after two o'clock on 30 October 2003 Mr Rahman was driving home. He pulled into the service station on Punchbowl Road, intending to buy petrol. A 4-wheel drive Pajero was already stationary at a pump in the service station. Michael Rahman drove his vehicle past the 4-wheel drive and stopped in front of it, at the same line of petrol pumps. Mr Rahman's evidence continued:- "When I was just reversing my car to adjust my car to the pump, and then I heard very loud shooting, it is like a shooting, you know, so I look in my rear mirror, in my rear mirror and the side one and I saw two guys shooting, they was standing between my car and the other car and they was shooting to someone in that time". 132Mr Rahman saw one man ("the first man") more than the other man. He described the first man as being:- "He's tall built, middle east appearance, about 170 something centimetres tall. He had hood on the head so I can't see his hair or anything like that". 133The first man had a goatee beard and he was carrying a black pistol that looked like a Glock. Although the first man had a hood, most of his face was exposed. 134Mr Rahman described the second man as follows:- "The second person was a bit taller than the other one, he is 175 centimetres tall, he is thinner than the other one, and he had a hood on his head too, but I didn't see his face that much". 135Mr Rahman did not really see the face of the second man. 136Mr Rahman's evidence continued:- "After that I drive forward to the side of the petrol station where the exit for Dudley Street is, and I saw the car was stop in the middle of the street with the doors open, and the engine running so I stopped in the exit of the station and I look again in the mirror. There was still shooting and when they finish they coming running beside me, all right, the two offenders, and I went to the exit in Dudley Street and the first guy, I described him, he come and get to the passenger's seat and the other guy he went to the driver's seat and they drove off". 137The vehicle in Dudley Street was a Commodore. Mr Rahman could not see if there was any one else in the Commodore. 138Mr Rahman reversed his vehicle. A man was lying on the ground dying. The Pajero was then still there. A man said, "I have to move the car" and that man drove off in the Pajero. 139Mr Rahman participated in the preparation of a Comfit image of the first gunman (the first man). I will discuss his evidence on this subject in more detail, when I deal with one of Aouad's grounds of appeal against conviction. 140Mr Rahman also looked at two series of photographs for the purpose of attempting to make a photographic identification of the first man. I will describe his evidence on this subject in more detail, when I deal with the same ground of appeal by Aouad.

SAFA MILANI'S EVIDENCE 141Safa Milani gave evidence that on 30 October 2003 he was working at the service station in Punchbowl Road. While he was helping the driver of a truck unload stock for the shop at the service station, he heard a call for assistance and he helped others push a 4-wheel drive vehicle into the service station. He then went back to help the driver of the truck unload his stock. 142Mr Milani heard the sounds of gunshots. He did not see the persons who did the shooting. 143Mr Milani saw one of the men who had been pushing the 4-wheel drive lying on the ground. He saw a car on Punchbowl Road. The driver of this car appeared to be looking at the service station. The driver slowed the vehicle down.

KERRY NOUNIS'S EVIDENCE 144Kerry Nounis was a lawn-mowing contractor who was mowing a lawn directly opposite the service station. 145Mr Nounis heard a number of bangs coming from the service station. At first he thought it was the sound of a car backfiring or of firecrackers. Mr Nounis saw two persons walking away to a car, a Commodore, which was in Dudley Street. He thought one of the men had a pistol in his hand. 146Mr Nounis could only give a very general description of the two men. He thought that one of them had an olive complexion. 147Mr Nounis took the registration number of the Commodore and later supplied it to the police.

MOHAMMED HALWANI'S EVIDENCE 148Mr Halwani gave evidence that in October 2003 he was an apprentice mechanic at the service station. 149On 30 October 2003 he was working in the workshop of the service station. He heard noises like firecrackers. His evidence in chief continued:- "I poked my head out to see what was going on and I saw two people shooting and then I went back in". 150Mr Halwani said in his evidence in chief that he was not able to see any guns in the hands of the men. "That's why I thought it was firecrackers because all I saw was smoke". 151The Crown was granted leave to cross-examine Mr Halwani. In cross-examination Mr Halwani agreed that in a statement he had given to police he had said, "When I looked at the males with the guns I saw they both didn't have anything covering their faces". He had said in the statement that the man closer to him was Lebanese, about 170 centimetres tall, medium build, with black shoulder length hair with blonde streaks in it. In his statement he said that he did not get a good look at the second man but the second man was Lebanese.

MELE MALUPO'S EVIDENCE 152Ms Malupo gave evidence that at around 1.00 or 2.00 pm on 30 October 2003, she was a passenger, with other family members, in a vehicle being driven by her mother along Punchbowl Road towards King Georges Road. She heard two loud noises that sounded like fireworks coming from her right hand side where the A P Service Station was located. She saw two men running from the A P Service Station towards a light green/aqua coloured car parked in the side street which ran alongside the service station. The first man got into the front passenger seat, but she did not see where the second man went. The vehicle drove away as soon as the men entered it and for this reason Ms Malupo believed that there was a driver waiting in the car. 153Ms Malupo's mother then drove into the A P Service Station and she and her family attempted to render assistance to the deceased. 154Ms Malupo stated that she only got a 'quick glance' at the two men. She described the first one as being of average/tall height and because of the man's nose and eyes, she believed him to be Lebanese. The first man was wearing a light brown coloured hooded jumper. She could only see the eyes and nose of the man, because the hood covered the rest of his head. Ms Malupo described the second man as being about the same height as the first man and he too was wearing a hooded jumper.

OTHER EVIDENCE IN THE CROWN CASE 155Apart from the evidence of the witnesses I have referred to, there were some further pieces of evidence, including:-

1. Evidence of an association between Aouad and the Commodore vehicle, being formal admissions that he was driving the Commodore 11 days before 30 October 2003 and was in the Commodore later that month.
2. Evidence of an association between El-Zeyat and the Commodore, being formal admissions that on 17 October 2003 Adnan Darwiche drove the Commodore to El-Zeyat's home, left it parked outside El-Zeyat's home and then drove it away from El-Zeyat's home.
3. Evidence of the meeting at McDonalds Menai, only a few hours after the killing, between El-Zeyat, Darwiche, Jalal Alameddine, Bassam Said and Tony Haddad, including a photograph of the group taken while they were at McDonalds.
4. Call charge records and evidence of telephone numbers, showing telephone contact between El-Zeyat and Bassam Said just before the time of the shooting and two to three minutes after the time of the shooting.
5. Evidence of possession by Aouad of a hooded jacket.
6. Evidence by Donna Fahda, the former wife of Aouad, that Aouad had possession of Glock pistols of the type which, according to the ballistics evidence, had been used to shoot Ahmed Fahda.

THE DEFENCE CASES 156A number of the Crown witnesses, and particularly Bassam Said, Tony Haddad, Wahib Hannouf and Haissam Hannouf, were cross-examined at length so as to bring out before the jury the extent of their criminal activities, the benefits they had received from co-operating with the authorities, the conflicts and omissions in the various accounts they had given and the opportunities they had had to jointly concoct untrue versions of events. 157Neither of the appellants gave evidence and Adnan Darwiche did not give evidence. No witness was called to give evidence in the defence case of El-Zeyat. 158Two witnesses were called in the defence case of Aouad. A private investigator gave evidence of certain time trials, that is of the times it had taken the investigator to travel by car or on foot along some of the routes which, according to the Crown witnesses, they had taken on 30 October 2003. A ballistics expert gave evidence about Glock pistols. It was not suggested at the hearing of these appeals that the evidence of either of these witnesses had any significance.

GROUNDS OF APPEAL 159Ultimately, after leave had been granted by the court to amend certain grounds of appeal or raise further grounds of appeal, the appellant Aouad relied on six grounds of appeal against conviction and the appellant El-Zeyat relied on four grounds of appeal against conviction. 160Aouad's first ground of appeal and El-Zeyat's first ground of appeal raised substantially similar issues and can conveniently be dealt with together. 161Aouad's second ground of appeal was by its very nature specific to Aouad's appeal and there was no corresponding ground of appeal by El-Zeyat. Aouad's third ground of appeal, which related to the admission into evidence at the trial of informal admissions made by El-Zeyat, being evidence which was clearly admissible against El-Zeyat, was abandoned by Aouad. Aouad's fourth ground of appeal related to certain conduct by his former wife Donna Fahda in giving evidence at the trial and there was no corresponding ground of appeal by El-Zeyat. 162Aouad's fifth ground of appeal and El-Zeyat's second ground of appeal raised substantially similar issues and can conveniently be dealt with together, as is the case with Aouad's sixth ground of appeal and El-Zeyat's fifth and sixth grounds of appeal.

AOUAD - GROUND OF APPEAL 1

1. The trial judge erred in directing the jury as to the approach they were entitled to take in considering the evidence of the witnesses who might reasonably be regarded as criminally concerned in the crimes alleged against the appellant and, in particular, by directing the jury that the evidence of any one 'indemnified witness' may be considered as providing support for the evidence of another. 1(b) The trial judge erred in directing the jury that it was open to the jury 'to have regard to the evidence of one or more indemnified witnesses as providing some support for an acceptance of the evidence of another of the indemnified witnesses'.

EL-ZEYAT - GROUND OF APPEAL 1 1 The trial judge erred in directing the jury that the evidence of any one "indemnified witness" may be considered as providing support for the acceptance of the evidence of another of the "indemnified witnesses". 163Counsel for Aouad informed the Court that ground 1(b) did not raise any ground independent of ground 1. Ground 1(b) had been added to the grounds of appeal, merely for the purpose of basing the first ground of appeal on the precise words the trial judge had used in her summing-up. 164Ground 1 in Aouad's appeal refers both to witnesses who might reasonably be regarding as criminally concerned in the crime alleged against the appellant and to indemnified witnesses. Ground 1 in El-Zeyat's appeal refers only to indemnified witnesses. 165The witnesses at the trial who had been indemnified were Tony Haddad, Wahib Hannouf, Haissam Hannouf and Khaled Taleb. Bassam Said was not an indemnified witness. 166Suggestions were made at the trial that the two Hannouf brothers might have been criminally concerned in the murder of Ahmed Fahda. However, there would not appear to have been any evidence (apart from evidence of possible motive), and on the appeal this Court was not directed to any actual evidence, as distinct from suggestions made in cross-examination, that the Hannouf brothers were or might have been criminally concerned in the murder. No suggestion was made at the trial that Bassam Said, Tony Haddad or Khaled Taleb might have been criminally concerned in the murder. 167The appellants' grounds of appeal were based on a passage in the trial judge's summing-up. The trial judge had been referring to the evidence of the Hannouf brothers, Khaled Taleb, Tony Haddad and Bassam Said. Her Honour noted that they were all persons of bad character with a history of serious criminality. Her Honour continued: "Plainly members of the jury, there is a need for you to exercise great care in assessing the evidence of each of these witnesses. You look at whether the evidence impressed you as credible. Whether it is consistent in the case of each witness with accounts that he has previously given, plainly you would look for independent support in considering whether you accepted the evidence of one or more of these witnesses. It is open to you to have regard to the evidence of one or more of the indemnified witnesses as providing some support for an acceptance of the evidence of another of the indemnified witnesses. As your own commonsense would suggest, you need to approach that exercise with a degree of care. Tony Haddad and Bassam Said are persons with a close association that includes their willingness to engage in serious criminal activities together. Each was suspected by the police of having been an accessory after the fact to the murder of Ahmed Fahda. To the extent that their accounts may seem to coincide, you would assess whether they have had the opportunity to collude and agree upon an account to put forward to the police that serves to exculpate them." 168At the trial there was no complaint from trial counsel for either appellant (or from counsel for the other accused Darwiche) about this part of the trial judge's summing up. Accordingly, r 4 of the Criminal Appeal Rules applies. Nor was there any request pursuant to s 165 of the Evidence Act for any further direction. 169The history of the written submissions of the appellants in support of this ground is somewhat involved. Written submissions dated 6 December 2007 were lodged on behalf of El-Zeyat. These submissions had been prepared by the late Mr Paul Byrne of senior counsel. 170Written submissions were subsequently lodged on behalf of Aouad. In these submissions it was stated Aouad adopted and relied upon the submissions made on behalf of El-Zeyat. This was apparently a reference to the submissions which had been prepared by Mr Byrne. However, in submissions subsequently lodged on behalf of El-Zeyat it was stated that the submissions of 6 December 2007 were withdrawn and that new submissions were being made. 171In the course of the hearing it became clear that the appellants did wish to rely on Mr Byrne's submissions, as well as further submissions. 172The written submissions prepared by Mr Byrne were not really submissions but a survey by Mr Byrne of English and Australian cases on the subject of "mutual corroboration of accomplices". A number of cases surveyed by Mr Byrne were referred to frequently in further written and oral submissions on the appeal. These cases included Pollitt v The Queen (1991-1992) 174 CLR 558; R v Chen & Ors (2002) 130 A Crim R 300; R v Ngo [2003] NSWCCA 82 (reported in part at (2003) 57 NSWLR 55); Conway v The Queen (2001) 209 CLR 203; Kanaan & Ors v Regina [2006] NSWCCA 109. 173In Pollitt the Crown case was that Pollitt and an accomplice named Jones had been recruited to kill one man but had mistakenly killed another man. At the trial Jones gave evidence in the Crown case and a prisoner informer named Denning gave evidence of a confession he said Pollitt had made to him while both Pollitt and Denning were in prison. 174The trial judge gave a direction that Denning's evidence, if accepted, was capable of corroborating the evidence of the accomplice Jones. It was submitted on the appeal that the witnesses Jones and Denning could not corroborate each other. 175At pp 599-600 Dawson J and Gaudron J said in their joint judgment: "It is convenient first to consider the argument that Denning and Jones could not corroborate each other. Leaving aside the special problems associated with the unsworn evidence of children (which, of course, are not involved in this case) and the position with respect to the evidence of accomplices, there is no rule of law or practice that evidence which attracts a corroboration warning cannot corroborate or be corroborated by other evidence attracting the same warning. The rule that one accomplice cannot corroborate another is based in large part on the common interest of accomplices in minimizing their involvement in the offence charged. That common interest raises the possibility that they may have conspired to give an identical but false account. It is for this reason that a direction is given that accomplices cannot corroborate each other. Thus, if there is no possibility of joint fabrication, as, for example, where the witness was an accomplice in other offences and is called to give similar fact evidence, a direction to this effect is not required. Equally, there may be cases not involving accomplices where, because of the possibility of joint fabrication, it is necessary to direct a jury to look elsewhere for corroboration. But there was no basis for any suggestion of joint fabrication in this case and, thus, there was no need for a direction that Denning and Jones could not corroborate each other." 176In R v Chen the appellants had been charged with importing a commercial quantity of heroin in contravention of the Customs Act . A man named Chan who had been a member of the criminal enterprise gave evidence for the Crown. At para 58 of its judgment the Court of Criminal Appeal said: "In our opinion, Chan was plainly an accomplice. Though s 164(3) of the Evidence Act abolished the universal common law duty to give an accomplice warning, the power and the duty to do so in appropriate circumstances survives: see also s 165(5). It became, therefore, incumbent upon the learned presiding judge to give the jury a clear direction to the effect that it would be dangerous to convict the appellant, and his other co-accused, upon the uncorroborated evidence of that accomplice. This, as it seems to us, his Honour plainly and correctly did. ..." 177In R v Ngo the Court at para 179 of its judgment quoted part of the joint judgment of Dawson and Gaudron JJ in Pollitt at p 600 and at paras 187 and 188 referred with approval to what had been said at para 58 of the judgment in Chen . 178In Conway v The Queen , Conway was charged with the murder of his wife. It was alleged by the Crown that he had instigated two men to inject his wife with a fatal dose of heroin. The two men gave evidence for the Crown at Conway's trial. The Commonwealth Evidence Act , which was in similar terms to the New South Wales Evidence Act , applied to the trial. 179The trial judge gave the jury a direction that it would be dangerous to convict Conway of the evidence of the two men, who were accomplices, unless the evidence was corroborated. The trial judge directed the jury that a large number of matters were capable of amounting to corroboration. On the appeal it was conceded by the Crown or found by the Court, that some of these matters were not capable of amounting to corroboration. 180The High Court held that ss 164 and 165 of the Evidence Act did not prohibit a judge from warning a jury that it would be dangerous to convict on the uncorroborated evidence of an accomplice. The High Court further held that, although the jury had been misdirected about what evidence was capable of constituting corroboration, no substantial miscarriage of justice had resulted, because the evidence against the accused was overwhelming. 181Kanaan & Ors v Regina featured prominently in the submissions of the parties on the hearing of the present appeal. 182In Kanaan the head of a criminal organisation had been murdered. The Crown alleged that the persons who became appellants in the Court of Criminal Appeal had been parties to a joint criminal enterprise to kill the deceased. 183The Crown case depended principally on the evidence of a witness who had been a member of the same criminal organisation and who might reasonably have been supposed to have been criminally concerned in the joint criminal enterprise. This witness was given the pseudonym of Rossini. The witness was given an undertaking by the Attorney General that, provided that the evidence he gave was true, his evidence would not be used against him. 184The Crown case also depended, to a lesser extent, on the evidence of two brothers who might reasonably have been supposed to have been accessories after the fact to the murder. The two brothers were given the pseudonym "Laycock". 185In Kanaan the trial judge did not direct the jury that it would be dangerous to convict on the uncorroborated evidence of an accomplice. The trial judge did direct the jury that they could find "support" for the evidence of Rossini in the evidence of the Laycock brothers. The Court of Criminal Appeal held that the trial judge had not erred in either respect. 186The High Court refused special leave to appeal from the decision of the Court of Criminal Appeal in Kanaan ((2007) HCA transcript 402 (3 August 2007)). In refusing special leave the Chief Justice said that the Court was of the view that there were insufficient prospects of the appeals succeeding to grant special leave. 187Parts of the judgment of the Court of Criminal Appeal in Kanaan which were particularly referred to on the present appeal were parts of the judgment between paras [202] and [224]. 188In para [205] the Court noted a submission by the appellants as follows: "The appellants' next submission supporting Ground 3 is that it was incumbent on the judge in this case to direct the jury that, as Rossini was an accomplice, it was dangerous to convict the accused on his uncorroborated evidence, to give the jury assistance as to the nature of corroborative evidence and to identify what evidence there was which, if accepted, could constitute corroborative evidence in this case. Reliance was placed on the decisions of this Court in Regina v Chen and Regina v Ngo." 189In para 206 of the Judgment the Court referred to para [58] in the judgment of the Court in Chen . In para 207 the Court set out the provisions of the Evidence Act . The Court commenced para 208 by referring to paras [187]-[188] of the judgment of the Court in Ngo . The Court then proceeded to point out that in neither Chen nor Ngo had any reference been made to the decision of the High Court in Conway , which had been handed down before the decisons in Chen and Ngo were given. 190In paras [216]-[217] of its Judgment in Kanaan the Court said: "216 In the circumstances that - (i) Conway v The Queen explicitly states that a common law accomplice warning that it is dangerous to convict is not necessary, although it is permissible, (ii) the need for corroboration for any evidence (except in relation to trials of perjury or a similar or related offence) has been abolished by s 164, unless some other provision of the Evidence Act required it, and the terminology of the common law accomplice direction is not imported into the accomplice warning to be given pursuant to s 165(2) (as we have asserted in par [214] supra - it is, with due respect, not possible to agree with this Court's decisions in Chen and Ngo , and to some extent with the decision in Livingstone , that the necessity for such a direction (or the duty to give such a direction) has survived 'in appropriate circumstances'. 217 In our view, the effect of ss 164-165 (as now interpreted by the High Court) is as follows: (1) It is not necessary for the evidence of a witness who may reasonably be supposed to have been criminally concerned in the events giving rise to the trial to be corroborated. The judge, if requested to do so and unless of opinion that there are good reasons not to do so, is: (a)to give a warning that the evidence of that witness may be unreliable, (b)to inform the jury of matters that may cause it to be unreliable, and (c)to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The matters to which reference was generally made in directions which accompanied the common law accomplice warning should, when appropriate, generally be used when informing the jury of the matters which may cause the evidence of that witness to be unreliable. (4) The Judge may, if satisfied that it is necessary in the interests of justice to do so in the particular case, give a warning that it would be dangerous to convict on the uncorroborated evidence of such a witness, but the judge is never under a duty to do so." 191In paras [219], [220] and [221] the Court said: "219 The appellants' final submission in support of Ground 3 is that the judge wrongly directed the jury that they could find 'support' for the evidence of Rossini in the evidence of the Laycock brothers. Reliance is placed on Pollitt v The Queen (1992) 174 CLR 588 at 600, where the rule that one accomplice cannot corroborate another was said to have been based in large part on the common interests of accomplices in minimising their involvement in the offence charged. That common interest raises the possibility that they may have conspired to give an identical but false account. For the reasons already given (in par [202] supra ), the Laycocks as accessories after the fact were not accomplices. Nor was there any requirement that Rossini's evidence be corroborated. 220. The High Court in Pollitt also said (at 600) that corroboration could not be given of the evidence of an accomplice where there was the possibility of joint fabrication by the accomplice with the other witness. There was such a possibility of joint fabrication between Rossini and the Laycock brothers. It would therefore have been an error if the judge had directed the jury that the evidence of the Laycock brothers could corroborate that of Rossini. He did not do so. His instruction to the jury was that they should look 'to see to what extent there is any independent support' for the evidence Rossini had given. That direction did not invite the jury to equate independent support with corroboration. 221 The words 'independent support' have a far wider meaning than 'corroboration', and therefore 'support' need not be of such a nature that it confirms in some material particular not only that the crime has been committed but also that the accused committed it: cf Rex v Baskerville (1916) 2 KB 658 at 665, 668. Provided that the jury is adequately warned that the evidence of a witness who may have fabricated a story jointly with the 'accomplice' may be unreliable for that reason when looking for support in that witness's evidence of the evidence given by the 'accomplice', there is no reason why the jury may not look for support in such evidence.' 192The decision in Kanaan was handed down on 13 April 2006 during the trial of the appellants. The decision was drawn to the trial judge's attention and her Honour's directions in her summing up were clearly based on Kanaan . 193On the present appeal counsel for Aouad submitted that the trial judge had erred in directing the jury that it was open to them to have regard to the evidence of one or more of the indemnified witnesses for support for the evidence of another indemnified witness. 194It was submitted that all of the witnesses Bassam Said, Tony Haddad, Wahib Hannouf and Haissam Hannouf were "unreliable" witnesses and that the jury could look for support for the evidence of one of those witnesses in the evidence of another of those witnesses, only if the evidence of the other witness was truly independent of the evidence of the first witness and the evidence of the other witness would not be truly independent, unless the possibility of the two witnesses having jointly concocted their evidence was excluded. Counsel referred to Pollitt at p 600. 195A further submission was made that in the part of the trial judge's summing up which I have quoted the trial judge directed the jury that they should assess whether the witnesses Bassam Said and Tony Haddad had had the opportunity to collude and agree upon their accounts but did not give a similar direction about whether other pairs of the unreliable witnesses had had the opportunity to jointly fabricate their evidence. 196Counsel for Aouad accepted that the judgment of this Court in Kanaan appeared to present some difficulties for his submissions. Counsel did not submit that Kanaan had been wrongly decided but did suggest that Kanaan had been "misunderstood". 197Counsel submitted that the passage in the joint judgment in Pollitt at p 600 had continuing significance, notwithstanding the subsequent introduction of the Evidence Act and the judgment of this Court in Kanaan . 198Counsel acknowledged that leave under r 4 of the Criminal Appeal Rules was required to rely on this ground, because there had been no objection to her Honour's direction at the trial, but submitted that leave should be granted. 199Counsel for El-Zeyat made the same principal submission as counsel for Aouad, that is that the jury could look for support for the evidence of one of the unreliable witnesses in the evidence of another of those witnesses but only if the evidence of the other witness was truly independent and the evidence of the other witness would not be truly independent if there was a possibility that the evidence of the two witnesses had been jointly concocted. 200A submission was made by counsel for El-Zeyat that "corroboration evidence" is a species of the genus "supporting evidence" and, if evidence cannot amount to corroboration because of a possibility of joint concoction, it cannot amount to independent support, if there is a possibility of joint concoction. 201It was submitted that the unreliable witnesses in the present case had in fact had an opportunity to jointly concoct their evidence, while they were in prison together. 202Counsel for El-Zeyat's submissions about the judgment of this Court in Kanaan varied. No submission that Kanaan had been wrongly decided had been made in counsel's written submissions. In oral submissions it was submitted that Kanaan had been "misconceived" and "misapplied". Later in counsel's oral submissions it was submitted that the distinction drawn in Kanaan between evidence which is corroboration and evidence which is independent support is fallacious. At one stage in oral submissions an outright submission was made that Kanaan had been wrongly decided.

DECISION 203The direction by the trial judge which is challenged was a direction which literally applied only to the indemnified witnesses. Bassam Said was not an indemnified witness. However, he was referred to in this part of the summing up and the jury could well have understood that Bassam Said was included among the witnesses whose evidence might receive or provide support. 204In my opinion, the submissions of counsel for the appellants sought to confer on the passage in the joint judgment of Dawson and Gaudron JJ in Pollitt at p 600 a significance for the present appeals, which the passage cannot properly bear. 205Pollitt was a case decided at common law before the introduction of the Evidence Act , in the special context of the common law rules about the corroboration of evidence of accomplices. The Evidence Act and particularly ss 164 and 165 made radical changes to the common law rules about the corroboration of evidence of accomplices. 206In any event, none of the allegedly unreliable witnesses was an "accomplice" or a person who might reasonably be supposed to have been criminally concerned in the murder (s 165(1)(d) of the Evidence Act ). Although Bassam Said at one stage was charged by police with having been an accessory after the fact to the murder, it was not suggested at the trial that he had been criminally concerned in the murder. Nor was it suggested at the trial that Tony Haddad had been criminally concerned in the murder. Some questions were put in cross-examination to the Hannouf brothers with a view to showing that they might have been criminally concerned in the murder but they denied the suggestions put to them. No application was made at the trial that a direction pursuant to s 165 of the Evidence Act should be given on the basis that a witness might reasonably be supposed to have been criminally concerned in the murder. 207The passage in the joint judgment at p 600 of Pollitt makes clear that, apart from the two special cases mentioned, there was no general rule of law or practice at common law that evidence which required a corroboration warning could not be corroborated by other evidence requiring the same warning. 208The only part of the joint judgment which lends any support to counsel for the appellants' submissions is the dictum that there "may" be cases not involving accomplices where, because of the possibility of joint fabrication, it is necessary to direct the jury to look elsewhere for corroboration. This dictum does not provide an adequate foundation for this Court to create a rule of law that, if two witnesses are "unreliable" (seemingly for whatever reason) the jury cannot look for support for the evidence of one witness in the evidence of the other witness, unless the possibility of joint concoction is excluded (seemingly beyond reasonable doubt). 209As was acknowledged by counsel for both appellants, the decision of this Court in Kanaan presents serious difficulties for their submissions. As I have already noted, counsel for El-Zeyat made a submission at one stage that Kanaan had been wrongly decided. 210In my opinion, this Court should accept Kanaan as having been correctly decided. It is a recent unanimous decision of this Court and the High Court refused special leave to appeal on the ground that the proposed appeal had insufficient prospects of succeeding. As pointed out in Kanaan , what was said in the earlier decisions of this Court in Chen and Ngo was said in apparent ignorance of the decision of the High Court in Conway . No notice was given in the written submissions for either appellant that it would be submitted that Kanaan had been wrongly decided and, accordingly, the present Bench consists of only three judges. 211In Kanaan this Court held that there is a distinction between "corroboration" and "independent support", that independent support is wider than corroboration, that in order for evidence to be independent support it need not comply with the stringent requirements for evidence to be corroboration at common law and that a jury may look for support for the evidence of one witness in the evidence of another witness, notwithstanding the possibility that witnesses might have fabricated their evidence jointly, provided that the jury receives adequate warnings. In my opinion, these holdings undermine the submission made by counsel for each appellant that the trial judge erred in directing the jury that it was open to them to have regard to the evidence of one or more of the indemnified witnesses for support for the evidence of another indemnified witness. Contrary to the submission made by counsel for El-Zeyat, there is no logical difficulty in holding that evidence which does not satisfy a requirement for corroboration at common law may nevertheless be available as support for the evidence of another witness. 212There was, indeed, little factual basis for a submission that the Hannouf brothers on the one hand and Bassam Said on the other hand had jointly concocted their evidence. The Hannouf brothers had made comprehensive statements to the police months before they and Bassam Said came to be imprisoned in the same correctional centre. 213In Kanaan the court qualified its statement about the availability of the evidence of one witness as support for the evidence of another witness, notwithstanding the possibility that the evidence of the two witnesses might have been jointly fabricated, by saying that adequate warnings should be given to the jury by the trial judge. 214It is true that the trial judge in the summing up warned about the possibility of joint concoction only as between Bassam Said and Tony Haddad and not as between other pairs of the witnesses the reliability of whose evidence was challenged. However, her Honour gave extensive general warnings about the evidence of these witnesses and the need to "pay special attention" and "to exercise great care" in assessing their evidence. Her Honour explicitly raised the possibility of joint concoction between Bassam Said and Tony Haddad. The subject having been raised, it could hardly have escaped the jury's attention that there was a possibility of joint concoction between other pairs of the witnesses, for example, between the two Hannouf brothers. 215No application was made at the trial for any further direction and r 4 of the Criminal Appeal Rules is applicable. I do not consider that the fact that the trial judge did not give any more extensive directions than she did gave rise to any miscarriage of justice. 216I would refuse leave under r 4 in respect of Aouad's first ground of appeal (including ground 1(b)) and El-Zeyat's first ground of appeal.

AOUAD - GROUND OF APPEAL 2 The trial judge erred in admitting into evidence a comfit identification of the appellant by the witness referred to at trial as Michael Rahman. 217Earlier in this judgment I summarised the evidence of the witness referred to at the trial as Michael Rahman about what he observed at the service station on the afternoon of 30 October 2003. I mentioned that Mr Rahman had participated in the preparation of a comfit image of the man described in his evidence as "the first man" and had looked at two series of photographs for the purpose of making a photographic identification of the first man. On the Crown case "the first man" was Aouad. 218On 30 October 2003 Mr Rahman made a statement to police in which he gave a description of the first man. In the statement he described the first man as having a goatee beard, as being about 170cm tall, as being of Middle Eastern appearance, as looking to be in his mid-twenties and as wearing a hooded top. This description was generally consistent with the appearance of Aouad. 219On 30 October 2003 Mr Rahman completed what is known as a comfit request form relating to the first man. However, no comfit image of that man was generated on 30 October 2003. 220On 7 January 2004 Mr Rahman was shown a display of photographs of young men, which did not include a photograph of Aouad. Mr Rahman selected three photographs which he said bore some similarity to the first man. 221On 9 March 2004 Mr Rahman completed another comfit request form for the first man. There were some changes and additions in this request form. 222A forensic imaging technician named Fleming, using the information supplied by Mr Rahman in both comfit request forms, then prepared a comfit image of the first man. 223On 1 April 2004 Mr Rahman was interviewed by police. He was shown two computer presentations of photographs of young men of Middle Eastern appearance. The first presentation included a photograph of Aouad (No 8). Mr Rahman selected photographs 1, 3, 8 and 17 as being photographs of persons similar to the first man. The photograph of Aouad which was included in the first computer presentation had been taken on 7 December 2003. 224The Crown gave notice before the trial that it would seek to tender at the trial evidence relating to the comfit image and its preparation and evidence relating to the showing or presentation of the photographs to Mr Rahman. Aouad's legal representatives informed the Crown that the admission into evidence of these two bodies of evidence (or parts of them) would be opposed. A voir dire enquiry was held before the commencement of the trial to determine the admissibility of these two bodies of evidence. After the conclusion of the voir dire enquiry the trial judge made rulings that both bodies of evidence were admissible. 225Subsequently, on 19 April 2006, after the trial itself had commenced, her Honour delivered written reasons for her rulings. Her Honour's judgment has been reported R v Darwiche & Ors (2006) 166 A Crim R 28. 226Consequentially upon her Honour's rulings, evidence relating to the comfit image and to the photographs was given at the trial. 227No appeal was brought from her Honour's ruling that the photographic evidence was admissible. 228It is convenient now to refer to parts of the trial Judge's judgment of 19 April 2006. In her judgment the trial judge referred to Mr Rahman as "Mr Delaney". 229In para 4 of her judgment her Honour summarised the evidence which had been given in the voir dire enquiry by Mr Fleming about comfit procedure as follows: "Evidence was give by Mr Fleming, an imaging technician with the New South Wales Police, about com-fit request forms and the production of com-fit images. A com-fit booklet contains computer images depicting different types of human faces and facial features, including eyes, mouths, noses and hair types. Each component in the com-fit booklet is identified by a letter and a number. An identifying witness is asked to select the features that most closely resemble the suspect from the booklet and to record the component numbers for each feature on a com-fit request form. Provision is made on the form for the witness to describe hair colour, complexion, ethnic appearance and other distinguishing features. The com-fit request form is then given to an imaging technician who produces a computer generated com-fit image, a process that involves merging the selected component features to produce a composite image of a human face." 230In paras 40-48 of the judgment her Honour said: "40. I turn now to a consideration of the basis of the challenge to the evidence relating to the production of the com-fit computer image. 41. Mr Segal objected to the admission of the com-fit image as hearsay submitting that it did not come within any of the exclusions to the hearsay rule. 42. At common law evidence of an identikit picture has been received in evidence on an analysis that, unlike an out of court statement in writing, the pictorial representation is not hearsay: R v Cook [1987] 1 QB 417 at 425 per Watkins LJ (delivering the judgment of the court): 'We regard the production of the sketch or photo fit by a police officer making a graphic representation of a witness's memory as another form of camera at work, albeit imperfectly and not produced contemporaneously with the material incident but soon or fairly soon afterwards. As we perceive it the photo fit is not a statement in writing made in the absence of a defendant or anything resembling it in the sense that this very old rule against hearsay has ever been expressed to embrace. It is we think sui generis, that is to say, the only one of its kind. It is a thing apart, the admissibility to evidence of which would not be in breach of the hearsay rule.' 43. In R v Sparkes (1996) 6 Tas R 178; 88 A Crim R 194 Underwood J reviewed the authorities at common law on the admission of identikit pictures. His Honour noted the cautionary commentary in Cross on Evidence (5 th Aust ed, 1996) p 876 - that the reasoning in Cook is not so strong in principle that it will inevitably be applied in Australia and that there are hearsay dangers in relation to photo fit pictures that do not apply to photographs - but determined to admit the photo fit following the reasoning in Cook . 44. Mr Delaney's evidence that the com-fit image resembles shooter No 1 is evidence of identification for the purposes of the Act. Mr Segal did not submit that it is inadmissible by reason of the provisions of s 114. For the reasons earlier given, I was not of the opinion that Mr Delaney's identification evidence is excluded by s 114, since I am satisfied that the accused had refused to take part in an identification parade prior to 9 March 2004. 45. Mr Segal did not challenge the evidence of the representations made by Mr Delaney on 9 March 2004 to Detective Hamilton and to Mr Fleming of the selection of the component features from the comfit booklet or of his identification of the com-fit image as resembling shooter No 1. The matter was argued on the basis that Mr Delaney's representations were first hand hearsay (T 670). The Crown Prosecutor submitted that the representations were admissible under s 66(2). There was no issue taken about whether the occurrence of the asserted fact was fresh in Mr Delaney's memory at the time the representations were made for the purposes of s 66(2). In the Crown's submission the interval of four months and nine days between the shooting and the date on which the com-fit image was made did not exclude Mr Delaney's representations made on that day being fresh in the memory. I considered that Mr Delaney's identification, comprising the selection of the component features from the com-fit booklet and assertion that the com-fit image resembled shooter no 1, to be admissible as original evidence of his state of mind and analogous to the out of court identification of a photograph: R v Barbaro [2000] NSWCCA 192; (2000) 112 A Crim R 551 per Grove J (with whose judgment Spigelman CJ and Wood CJ at CL agreed) at [43]. In the event that I was wrong in so concluding, I record that although the interval of over four months was lengthy (having regard to the observations in Graham v R (1998) 195 CLR 606) I considered that the assertions contained in the com-fit request form that appears to have been completed by Mr Delaney on the day of the shooting in combination with the assertions made by him on 9 March 2004 supported the conclusion that the image of shooter no. 1 was still fresh in his memory on 9 March. 46. Mr Segal's objection was to the admission into evidence of the com-fit image, which he contended was "one step away" from the representations made by Mr Delaney to Detective Hamilton and Mr Fleming. In his submission the com-fit image is an artefact produced by a skilled operator using technology and is excluded by the hearsay rule (T 670). That rule excludes evidence of a previous representation made by a person to prove the existence of a fact that the person intended to assert by the representation: s 59. The com-fit image is not tendered to prove any fact intended to be asserted by Mr Fleming. The com-fit image is a graphic representation of Mr Delaney's mental image of shooter No. 1. Accepting that Mr Delaney's identification of the com-fit image (that it closely resembles shooter No 1) is admissible, I considered that the com-fit image is admissible; much in the way that a photograph identified by a witness on an earlier occasion is admissible. 47. Mr Segal submitted that the com-fit image should be excluded under s 137 of the Act. He laid stress on its near photographic quality, which he submitted was likely to have persuasive power that a sketch may not possess. In his submission there existed a danger that the jury would place too much emphasis on an image, which at best is a computer generated likeness based on the instructions of a witness who had a fleeting opportunity to observe shooter no. 1 and whose observations were made under circumstances of some exigency. Shooter No. 1 was not known to Mr Delaney. Mr Segal submitted that the jury may be tempted to compare the accused with the image and to conclude that he resembles the man depicted. 48. I did not consider the quality of the com-fit image to occasion unfair prejudice to the accused. It is plainly a computer-generated image. I accepted that jurors would compare the com-fit image with the accused and assess whether the accused resembles the image that was created at Mr Delaney's direction. There is nothing about the com-fit image that occasions prejudice to the accused beyond the circumstance that his facial features may be considered to be broadly consistent with it. The matters that Mr Segal addressed by way of criticism of Mr Delaney's ability to accurately recall the appearance of shooter no 1 are matters that will require directions concerning the special need for caution in assessing evidence of this character. I was not of the opinion that the probative value of the evidence of the com-fit image was outweighed by the danger of unfair prejudice to the accused." 231It is also necessary to refer to another part of her Honour's judgment, in which her Honour referred to s 115(5) of the Evidence Act in considering the admissibility of the photographic evidence. In para 34 of her Judgment her Honour said in part: "...I consider that the accused had refused to take part in an identification parade on 1 March and 29 March 2004, when on each occasion he was offered the opportunity to participate in one. The verb "refuse" is defined in the Oxford English Dictionary , 2nd ed, as "to decline to take or accept (something offered or presented); to reject the offer (a thing)". I consider that the accused declined to accept the offer to participate in an identification parade and that this constituted a refusal for the purposes of subs (5)(a). The fact that he indicated that if certain conditions were met he might take a different stance does not mean that the stance taken at the time the offer was made did not constitute a refusal." 232It is apparent from these parts of the trial Judge's judgment that counsel for Aouad at the trial objected to the admission into evidence of only the comfit image itself. Counsel did not object to the admission into evidence of representations made by Mr Rahman to Detective Hamilton or to Mr Fleming and did not object to Mr Rahman giving evidence that the comfit image which had been produced resembled the first shooter. 233The ground on which counsel at the trial objected to the admission into evidence of the comfit image itself (apart from the objection based on s 137 of the Evidence Act ) was that it was "one step away" from the representations made by Mr Rahman and was an artefact produced by a skilled operator and should be excluded under the hearsay rule. 234The trial judge held that Mr Rahman's evidence, comprising the selection of the component features from the comfit booklet and the assertion that the comfit image resembled the first shooter, was original, and not hearsay, evidence and, if this evidence was admissible (and its admissibility had not been disputed), then the comfit image itself was admissible. The comfit image was not being tendered to prove any fact intended to be asserted by Mr Fleming. 235The trial judge did not need to decide whether, if any part of Mr Rahman's evidence was hearsay, it was nevertheless admissible under s 66(2) of the Evidence Act but did proceed to hold that, if the evidence was hearsay, it was admissible under s 66(2). Her Honour noted that no issue had been taken about whether the occurrence of any asserted fact was "fresh" in Mr Rahman's memory at the time he had made a representation asserting the fact. 236In the ground of appeal the evidence which it is alleged that the trial judge erred in admitting is described as evidence of a "comfit identification". 237On the hearing of the appeal the evidence which it was submitted that the trial judge had erred in admitting went far beyond the comfit image itself, which had been the only piece of evidence objected to by trial counsel, and extended to the representations Mr Rahman had made in completing the second comfit request form and the grounds on which it was submitted that the "comfit identification" evidence was inadmissible went beyond the grounds which had been taken before the trial judge. It was submitted that the "comfit identification" evidence was hearsay evidence and that it did not come within the exception to the hearsay rule in s 66(2) of the Evidence Act , because, when Mr Rahman had made representations about the appearance of the first man on 9 March 2004, the occurrence of the facts he was asserting was no longer "fresh" in his memory within the meaning given to the word "fresh" by the High Court in Graham v The Queen (1998) 195 CLR 666. It was submitted that the trial judge had wrongly "conflated" the representations made by Mr Rahman on 30 October 2003, when it was conceded that his memory of the occurrence of the asserted facts was fresh, and the representations made by him on 9 March 2004, more than four months later. 238Although no ground of objection based on s 114 of the Evidence Act had been taken at the trial, it was submitted that the comfit identification evidence was "visual identification evidence" and was not admissible under s 114(2)(c) of the Evidence Act , because it was not the case that the appellant had refused to take part in an identification parade, as was held by her Honour in relation to both s 115(5)(a) and s 114(2)(c) of the Evidence Act . 239It was submitted by the Crown that the comfit identification evidence was original evidence or, alternatively, if any part of the evidence, for example, evidence of representations made by Mr Rahman on 9 March 2004, was hearsay, it had been open to her Honour to find, after taking into account all the circumstances, that the evidence was "fresh". It was submitted that there was in fact little difference between the representations made by Mr Rahman on 30 October 2003 and on 9 March 2004. 240It was submitted by the Crown that this Court should not entertain the ground of objection to the evidence based on s 114 of the Evidence Act and that, in any event, no part of the evidence was "visual identification evidence" within s 114.

DECISION 241It is useful, in my opinion, to examine the actual evidence given at the trial by the relevant witnesses. 242Mr Fleming gave evidence that he was a forensic imaging technician. He gave general evidence about the process undertaken in the creation of a comfit image, which was similar to the evidence given in the voir dire enquiry which was summarised in the trial judge's judgment. 243Mr Fleming identified the comfit booklet, which was tendered and admitted. He identified one comfit request form which he had received from Mr Rahman. He was not sure about another comfit request form which was shown to him but other evidence established that the document shown to him was the other comfit request form he had received from Mr Rahman. 244Mr Fleming then identified an image as being "the image I created from the description by the witness". 245Mr Fleming could not recall whether Mr Rahman wanted any modifications to the image Mr Fleming had produced on the basis of the information in the request forms but agreed that "the image ... is one that the witness was satisfied with". 246The relevant evidence given by Mr Rahman at the trial was quite brief. He said that on two occasions he had given instructions to police about the facial features that should be included in an image to be created. He did not give any evidence about any particular representations he had made about what the facial features were. 247The following question and answer occurred: Q. When you saw the final image how good a likeness was it to the first gunman that you saw? A. Well, I was happy with the image he created and it's like maybe 80 percent like the one I really saw in that incident." 248Mr Rahman then identified the image which had been created and the image was tendered and admitted into evidence. 249The police officer Detective Hamilton gave evidence that he had gone with Mr Rahman to the Sydney Police Centre on 9 March 2004 for the purpose of preparing a comfit image. Detective Hamilton identified the comfit request form filled in on 9 March 2004. 250The two comfit request forms of 30 October 2003 and 9 March 2004 were admitted into evidence. 251The key part of Mr Rahman's evidence at the trial was his evidence that, when he saw the final image, "I was happy with the image he created and it's like maybe 80 percent like the one I really saw in that incident." 252It seems to me that in that answer Mr Rahman was asserting that at the time he first saw the final image he had been "happy" with it and that at the time of giving evidence he considered that it was about 80 percent like the person he had seen. 253Insofar as Mr Rahman was giving evidence of his state of mind at the time of giving evidence, I consider that the evidence was clearly original evidence and not hearsay evidence. Insofar as he was giving evidence of what had been his state of mind at the time of first seeing the final image, I consider that his evidence was also original evidence. 254The latter conclusion is supported by part of the decision of this Court in R v Barbaro (2000) 112 A Crim R 55. It is true that in that case it was held that evidence by an observer of a previous out of court act of identification by a witness, although admissible at common law, is evidence of a "previous representation" by the witness within the meaning of that expression in the Evidence Act and is excluded by s 59 of the Evidence Act , unless it comes within one of the exceptions to the hearsay rule of exclusion. However, it was further held in Barbaro that the witness himself was not precluded from giving evidence of the previous act of identification. Such evidence would be original evidence of the witness's state of mind at the time of the act of identification (see especially at para 43 per Grove J). 255If Mr Rahman's evidence that the image was similar to the person he had seen was admissible, the image itself and evidence about how the image had been produced became admissible. It would, however, seem to follow from Barbaro's case that the relatively unimportant evidence given by Mr Fleming, that Mr Rahman had been satisfied with the image, might have been hearsay. 256The reasoning of Watkins LJ giving the judgment of the Court of Appeal in the English case of Cook , which is set out in the trial judge's judgment, is, as was recognised by Underwood J of the Supreme Court of Tasmania in Sparkes , open to doubt but, if accepted, would lend some support to the admissibility in the present case of the comfit image and the evidence relating to the comfit image. 257As I have already indicated, no oral evidence of previous representations by Mr Rahman was given at the trial, apart from Mr Fleming's evidence that Mr Rahman was "satisfied" with the final image. 258However, the two comfit request forms completed by Mr Rahman were admitted into evidence. These did contain representations by Mr Rahman that certain features of the person he had seen were like those depicted and identified by a letter and a number in the comfit booklet. These representations were previous representations made by Mr Rahman otherwise than in the course of giving evidence in the proceedings and came within s 59 of the Evidence Act . 259It was conceded by counsel for Aouad on this appeal that the representations made in the comfit request form of 30 October 2003 were first hand hearsay and were made at a time when the asserted facts were fresh in the memory of Mr Rahman and therefore came within the exception to the hearsay rule in s 66(2) of the Evidence Act . 260The representations made in the comfit request form of 9 March 2004 were not made until more than four months had elapsed since 30 October 2003. However, there was a great deal of similarity between the information provided in the two request forms. The information about the first man's eyes, nose and facial hair was identical in the two forms. The further information provided in the form of 9 March 2004 that the person had a goatee beard and was wearing a hooded jacket had been provided in the statement Mr Rahman made to police on 30 October 2003. In the form of 9 March 2004 Mr Rahman said that, apart from the goatee beard, the person had short hair but this would appear to be implicit in the information provided in the first form. 261The respects in which the two request forms differed were that in the first form Mr Rahman described the first man as having a face like F25 in the comfit booklet, whereas in the second form Mr Rahman described the man as having a face "between F14 and F25" in the booklet (there are 43 different types of face shown in the booklet) and in the first form Mr Rahman described the first shooter as having a mouth like M21 in the booklet, whereas in the second form he initially wrote M21 again, then ruled it out and wrote M11 (there are 61 different types of mouth shown in the booklet). 262In the circumstances, I consider that it was open to the trial judge to conclude, as she did, that the image of the first shooter was still "fresh" in the memory of Mr Rahman on 9 March 2004. 263As I have already noted, no objection based on s 114 of the Evidence Act was made to the comfit evidence at the trial. In my opinion and notwithstanding an assertion made by the trial judge in para 44 of her judgment, the evidence was not identification evidence and therefore not "visual identification evidence". Mr Rahman was not asserting that Aouad was or resembled one of the shooters. He was merely asserting that some of the shooter's features were like certain features shown in the comfit booklet and that the comfit image resembled the shooter. 264Alternatively, I do not consider that there was any error by her Honour in holding, for the reasons she gave, that Aouad had refused to take part in an identification parade within s 114(2)(c) of the Evidence Act . 265In my opinion, this ground of appeal should be rejected.

AOUAD - GROUND OF APPEAL 3 266This ground of appeal was abandoned.

AOUAD - GROUND OF APPEAL 4 The trial judge erred in not discharging the jury after an outburst from the witness Donna Fahda (the sister of the deceased and ex-wife of the appellant). 267There was no corresponding ground of appeal by El-Zeyat. 268Donna Fahda, a sister of the deceased and the ex-wife of Aouad, gave evidence for the Crown at the trial on 1 May 2006. She gave evidence that she had become engaged to Aouad in June 2002 and had married him on 27 October 2002. She left him on a number of occasions and left him permanently in August 2003. 269Donna Fahda gave evidence that, while she was engaged to Aouad and after their marriage, she had seen Aouad in possession of Glock pistols. A ballistics expert gave evidence at the trial that marks on fired cartridge cases collected from the garage indicated that the cartridges might have been discharged from a Glock or a Smith & Wesson pistol. A Smith & Wesson is basically a copy of a Glock. 270After Donna Fahda had given this evidence, the trial judge directed the jury that the evidence was led for the limited purpose of showing that Aouad had access to firearms consistent with the firearm used to shoot Ahmed Fahda. 271Donna Fahda was cross-examined by counsel for Aouad. The transcript records the following questions and answers. "Q. What I wanted to put to you is that on no occasion did the man Ramzi Aouad have possession of any pistols at all? A. Pardon? Okay, it must be that you are married to him, not me. You must share the house, not me. HER HONOUR: Q. One moment. Counsel is putting to you he did have a gun-- A. I saw it with my own eyes, I know my own eyes don't lie. He had a gun, he had two of them. He was shot with one of them. He shot the bloody bedroom, ask him, he knows that. (In response to a comment from the dock) You shut up." 272The trial judge directed Donna Fahda to confine herself to answering the questions she was asked. She was not in fact asked any further questions by any counsel. 273On 4 May 2006, that is three days after Donna Fahda had given her evidence, counsel for Aouad made an application for a discharge of the jury on the grounds that the latter parts of the answer Donna Fahda had given on 1 May 2006 ("he was shot with one of them. He shot the bloody bedroom, ask him. He knows that") were unresponsive to the question asked and prejudicial. The trial judge said that she would deal with the application later that day. 274The trial judge decided not to discharge the jury and delivered a judgment giving her reasons. In her judgment she said of the unresponsive parts of the witness's answer: "... it seems to me that this evidence is capable of suggesting some misadventure that occurred in the bedroom of the premises involving the discharge of a Glock pistol and in which the accused suffered a bullet injury. It may be that there are other interpretations that can be put on it but it does not seem to me to be evidence tending to disclose that the accused has, on a previous occasion, used a pistol to shoot at another person or to threaten another person." 275In her judgment the trial judge noted that the evidence had been given on the fourteenth day of the trial and that the application for a discharge of the jury had been made on the seventeenth day of the trial. She referred to her power to give any further directions sought by counsel. No application was subsequently made that her Honour give any further directions. 276On this appeal counsel for Aouad, while conceding that the trial judge was exercising a discretionary power in deciding whether or not to discharge the jury, submitted that the exercise of the discretion had miscarried. It was submitted that a more sinister interpretation of the unresponsive parts of Donna Fahda's answer was possible, that is that the witness was asserting that Aouad had shot the deceased with one of the two guns, that the witness's suggestion, "ask him", reversed the onus of proof and that the time in the trial at which the evidence was given and the delay in making the application for a discharge were irrelevant and should not have been taken into account in the exercise of the discretion. 277The Crown submitted that a ground of appeal of this kind can be upheld, only if the Court of Criminal Appeal is of the view that the only course which had been open to the trial judge was to discharge the jury or where, with the benefit of hindsight, it can clearly be established that a miscarriage of justice arose because the jury was not discharged. The Crown cited R v El-Hayek [2004] NSWCCA 25 at [62] per Howie J. 278It was submitted by the Crown that the interpretation of the unresponsive parts of the answer which was suggested by the trial judge in her judgment was clearly open, whereas the interpretation suggested by counsel for Aouad was strained. The trial judge accepted that there might be other interpretations open. In her summing up the trial judge gave strong directions about the criminal onus and standard of proof and an accused's right to silence. 279It was submitted by the Crown that the fact that the trial had run for a number of days (and was likely to continue to run for a number of days) and the delay on the part of counsel in making the application for a discharge were factors which were relevant to the exercise of the discretion. 280In my opinion, for the reasons given by her Honour in her judgment and by the Crown in its submissions, this Court should find that there was no error in the exercise of the trial judge's discretionary power and that the decision not to discharge the jury did not lead to any miscarriage of justice. 281I would reject this ground of appeal.

EL-ZEYAT - GROUND OF APPEAL 2 5(a) A miscarriage of justice resulted from the absence at trial of fresh evidence concerning a listening device recording the witness, Haissam Hannouf, speaking to another man on 31 December 2003. 5(b) In the alternative, the trial miscarried as a result of the failure of police and prosecuting authorities to fully disclose material relevant to the credibility and tendency to violence of Haissam Hannouf. 5(c) In the alternative, the trial miscarried as a result of the failure of the appellant's legal advisors to exercise due diligence by obtaining material relevant to the credibility and tendency to violence of Haissam Hannouf. 282The evidence which it was submitted was fresh and the material which it was submitted was relevant to the credibility and tendency to violence of Haissam Hannouf was evidence of a conversation on 31 December 2003 between Haissam Hannouf and one of his other brothers Ahmed Hannouf. 283In late 2003 Haissam Hannouf and others were suspected by police of taking part in the manufacture of a prohibited drug. A listening device was installed in an apartment pursuant to a warrant granted under the Listening Devices Act and a conversation on 31 December 2003 was recorded by means of this listening device. 284A charge of knowingly taking part in the manufacture of a prohibited drug was brought against Haissam Hannouf and a Crown brief of evidence was served. The Crown brief included listening device warrants which had been granted but did not include a recording of the conversation of 31 December 2003 or any transcript of the conversation. 285The charge of knowingly taking part in the manufacture of a prohibited drug was included in the indemnity granted to Haissam Hannouf and no trial of the charge ever took place. 286The brief of evidence on the drug charge against Haissam Hannouf was served (together, of course, with many other documents) on the present appellants before their trial commenced. As I have already noted, the brief of evidence contained the listening device warrants but did not include any recording or any transcript of any conversation recorded by means of the listening devices. 287In 2008 the criminal trial of a man named El-Jamal commenced in the Supreme Court before R S Hulme J and a jury. Haissam Hannouf gave evidence at this trial. During the trial the recording and a transcript of the conversation on 31 December 2003 were produced, in response to a call by Counsel for El-Jamal, and Haissam Hannouf was cross-examined about the conversation. 288It would appear that the transcript of the conversation had only recently been prepared for the purpose of complying with the call made by El-Jamal's counsel. 289In October 2008 Hulme J permitted access by Aouad's legal representatives to the transcript of Haissam Hannouf's evidence at the trial of El-Jamal. By perusing this transcript Aouad's legal representatives became aware of the recorded conversation of 31 December 2003. 290In the conversation of 31 December 2003 Haissam Hannouf discussed with his brother Ahmed the obtaining of illicit drugs from a man who is referred to as being "brother". 291In one part of the conversation Haissam Hannouf said: "(indistinct) in secret, because I don't want to end up doing my brother for the sake of money (indistinct) I'll shoot him straight out, I will shoot him, you know, I don't want it to reach to that because if I shoot him (indistinct)." 292In another part of the conversation Haissam Hannouf said: "(indistinct) don't tell me (indistinct) doesn't open his mouth (indistinct) we shoot him. ... (indistinct) open his mouth (indistinct) I will shoot him (indistinct) we will reach that stage." 293At the trial of El-Jamal the audiovisual recording made on 31 December 2003 was played to Haissam Hannouf and he was asked questions about it. 294In his evidence Haissam Hannouf said that he and his brother Ahmed had been obtaining tablets for the purpose of extracting pseudoephedrine from the tablets and sending the pseudoephedrine in powder form to a man named Mark. 295In cross-examination on the first part of the conversation in which he referred to shooting, Haissam Hannouf said that in using the word "shooting" he was referring to guns and that the person he was talking about shooting was the man Mark. He said that he talked about shooting Mark "not for the sake of money. If he didn't get his money, he is going to come after me, so I will shoot him too, back, like, in self defence, yes". 296In cross-examination about the second part of the conversation in which he referred to shooting, Haissam Hannouf said that the person he was talking about shooting was still Mark, "If he opened his mouth to come after his money. He is a bikie, if he opens his mouth to the bikies, to someone to kill us". 297Further questions and answers in the cross-examination of Haissam Hannouf at El-Jamal's trial were: "Q, As at the thirty-first of December 2003 you were quite comfortable talking about a plan to shoot someone if you thought it was necessary, that's right? A. Self-defence for my life, yes. Q. And what you are talking about is shooting someone with a gun: A. Yes." 298It was submitted on behalf of the appellants that the recorded conversation showed that, at a time proximate to the murder of Ahmed Fahda (2 months afterwards), Haissam Hannouf was prepared to kill someone by shooting him with a gun. It was submitted that the conversation was of significant probative value and was relevant both to the credibility of Haissam Hannouf as a witness and to whether Haissam Hannouf might have been criminally concerned in the murder of Ahmed Fahda. Counsel submitted that the evidence of the conversation could be combined with evidence given at the trial, including evidence of a history of animosity between the Fahda family and the Hannouf family. 299It was accepted by counsel for the appellants that at the trial there had been evidence of criminal conduct by Haissam Hannouf, including acts of violence and of possession of firearms and a readiness to use firearms, but at times remote from the time of the murder. Moreover, a number of suggestions of criminal conduct which were put to Haissam Hannouf in cross-examination at the trial had been denied by him and could not otherwise be established. 300It was submitted that evidence of the conversation of 31 December 2003, had it been available at the trial, would have had a special value for the appellants, because the conversation had taken place within about 2 months of the shooting and, the conversation having been recorded, Haissam Hannouf, if the conversation had been put to him, would not have been able to deny it. 301It was submitted by the Crown that the evidence of the conversation was not "fresh" evidence, because the service on the appellants' legal representatives of the Crown brief on the drug charge against Haissam Hannouf, by its inclusion of the listening device warrants, should have put the appellants on notice that there might have been conversations which had been recorded by means of the listening devices. 302A submission more strongly relied on by the Crown was that the fresh evidence added little to the evidence which had been given at the trial and it was not the case that, if the fresh evidence had been before the jury, the jury would have been likely to have entertained a reasonable doubt about the guilt of the appellants.

DECISION 303It was common ground on the appeal that the principles to be applied by a Court of Criminal Appeal in considering a ground of appeal based on what is alleged to be fresh evidence were accurately stated by Kirby J in his judgment in R v Abou-Chabake (2004) 149 A Crim R 417 at 427-428(63). The sixth principle stated by Kirby J was as follows, applying where the evidence is not such as would entitle the appellant to an acquittal: "Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively: Is the evidence fresh? If it is, is it "credible" or at least capable of belief ( Gallagher v The Queen (1986) 160 CLR 392 at 395; 20 A Crim R 244 at 246 per Gibbs CJ), or "plausible" ( Mickelberg v The Queen (1989) 167 CLR 259 at 301; 43 A Crim R 182 at 210 per Toohey and Gaudron JJ)? If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused ( Gallagher v The Queen (at 410; 257) per Brennan J) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused ( Gallagher v The Queen (at 402; 251) per Mason and Deane JJ)? See Mickelberg v The Queen (at 301-302; 210-211) per Toohey and Gaudron JJ." 304I would reject the Crown's submission that the evidence should not be regarded as "fresh" evidence because the listening device warrants, but not the recordings or the transcript of any conversation, were included in the Crown brief on the drug trafficking charge against Haissam Hannouf, which was served on the appellants. There is no doubt that the evidence consisting of the recording of the conversation is credible. The determination of Part (a) of the ground of appeal therefore turns on the third question identified by Kirby J in Abou-Chabake , that is, if evidence of the conversation had been before the jury at the trial would it have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the appellants or whether there is a significant possibility that the jury acting reasonably would have acquitted the appellants. 305I do not consider that, if the fresh evidence had been before the jury, the fresh evidence, in the context of the evidence that was given at the trial, would have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the appellants or that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellants. 306There was much evidence at the trial of the bad character of Haissam Hannouf, of his having access to guns and of his being prepared to use guns to shoot people including Ahmed Fahda. This evidence included the following evidence given in cross-examination: "Q. Didn't your family purchase guns, hand guns in the middle of 2001? A. Yes. Q. So that they could defend themselves against such an attack by Fahda or his associates, correct? A. Yes. Q. And or perhaps to strike at him and his associates before they had a chance to strike at you, correct? A. Inside the house, yes. Q. You weren't going to take the guns outside the house and shoot? A. No, if he is going to come and shoot us inside the house, then we have to defend ourselves. Q. These were legitimately obtained firearms were they? A. No. Q. What sort of guns were bought? A. My brothers got all the guns." 307After Haissam Hannouf said that he knew that his brothers were acquiring guns, the evidence continued: "Q. And you were prepared to use them if necessary? A. Yes. Q. The guns were to be used to strike at Mr Fahda and his associates before he got the chance to shoot at you or to injure your family? A. Yes. Q. In 2003 October of 2003 when you claimed to have seen him shot dead at the petrol station, he is still an enemy of your family, isn't he? A. Yes. Q. He is still someone that you harboured fear might do something of a serious nature to you or any member of your family? A. Yes." 308It is true that in this evidence Haissam Hannouf said that guns had been acquired in 2001, that is two years before the murder. However, he said that Ahmed Fahda had remained an enemy of the Hannouf family down to the time of the murder. 309In my opinion, the fresh evidence that Haissam Hannouf was prepared to use guns to shoot some person other than the deceased, in self defence in the context of a drug deal, would have added little to the evidence before the jury, either as affecting the credibility as a witness of Haissam Hannouf or as showing that it was reasonably possible that he might have been criminally concerned in the murder. Accordingly, Part (a) of this ground of appeal should be rejected. 310I would also reject Part (b) and Part (c) of this ground on the basis of what I consider to be the lack of significance of the evidence. The evidence in this case lacks the significance of the new evidence in Grey v The Queen (2000) 201 CLR 414, a case to which we were referred by counsel and to which I will refer in more detail later in this judgment. 311Part (c) of this ground was not really pressed. It had been foreshadowed that affidavits might be obtained from Aouad's legal representatives at the time of the trial but no affidavits were ever filed. 312In my opinion, all parts of Aouad's ground of appeal 5 and El-Zeyat's ground of appeal 2 should be rejected.

AOUAD - GROUND OF APPEAL 6 6. A miscarriage of justice resulted from the absence at trial of evidence concerning a conversation between Sheikh Taj Eldeen Alhilali and Bassam Said on 8 July 2004. 6(b) In the alternative, the trial miscarried as a result of the failure of police and prosecuting authorities to disclose material concerning a conversation between Sheikh Taj Eldeen Alhilali and Bassam Said on 8 July 2004.

EL-ZEYAT - GROUNDS OF APPEAL 5 AND 6 5. A miscarriage of justice resulted from the absence at trial of fresh evidence concerning the conversation between Sheikh Taj Eldeen Alhilali and Bassam Said on 8 July 2004. 6. A miscarriage of justice resulted from the failure of the police and prosecuting authorities to disclose material concerning the conversation between Sheikh Taj Eldeen Alhilali and Bassam Said on 8 July 2004. 313It is apparent that grounds 6 and 6(b) of Aouad's appeal and grounds 5 and 6 of El-Zeyat's appeal are identical. 314None of these grounds were originally grounds of appeal for either appellant. At the beginning of the hearing of the appeal on 29 June 2010 counsel for El-Zeyat gave notice that he might wish to raise a further ground of appeal based on a conversation between "the Mufti" (Sheikh Alhilali) and Bassam Said but needed to check some matters of fact before seeking to raise any further ground of appeal. 315The principal hearing of the appeals took place on 29 June and 30 June. On 2 July counsel for El-Zeyat gave notice of an application for leave to add a further ground or grounds of appeal and on 9 July the Court made a grant of leave both to El-Zeyat and to Aouad. 316It is clear from the transcript of the hearing on 9 July that the leave which the Court granted was limited to the grounds which I have set out above. On 13 July 2010 an amended notice of grounds of appeal was filed on behalf of El-Zeyat, which was in accordance with the leave which had been granted. On 9 July 2010 the Court directed that the parties file written submissions on the further grounds of appeal. The submissions which were filed on behalf of the appellant Aouad were properly limited to the grounds for which leave had been given. However, in the written submissions which were filed on behalf of the appellant El-Zeyat ground 6 was stated as being "a miscarriage of justice resulted from the failure of the police and prosecuting authorities to disclose material concerning the events leading up to and including the obtaining of witness statements from Bassam Said (including his conversation with Sheikh Taj Eldeen Alhilali on 8 July 2004)" and some of the submissions in the written submissions went beyond material concerning the conversation between Sheikh Taj Eldeen Alhilali and Bassam Said on 8 July 2004. 317In my opinion, further leave should not be granted so as to permit the appellant El-Zeyat to rely on a ground of appeal in the terms of ground 6 in the written submissions filed on his behalf and the Court should not entertain such of the submissions as are not germane to the grounds of appeal for which leave was granted. 318A number of affidavits were filed which are relevant to these grounds of appeal. There was no cross-examination of any of the deponents of these affidavits and no application to cross-examine any of the deponents. In these circumstances the Court should proceed on the basis that what is deposed to in the affidavits should be accepted as being true. 319Sheikh Alhilali's affidavit of 1 July 2010, omitting formal parts and omitting paragraphs which were objected to and rejected by the Court or not pressed, was in the following terms: "1. As at October 2003 I was the Mufti of Australia (i.e. the most senior Islamic Jurist). 2. I am currently the senior Imam at the Lakemba Mosque employed by the Lebanese Moslems Association. 3. I am aware that a conversation I had with Bassam Said regarding the shooting of Ahmed Fahda is now relevant to criminal proceedings involving Naseam El-Zeyat. For that reason, I make this statement. 4. Each of Bassam Said, Ahmed Fadha and Naseam El-Zeyat, and various members of their respective families, were known to me as at October 2003. 5. I recall that at some time following the shooting of Ahmed Fahda, I was contacted by police officer Detective Tamer Kilani. That officer gave me his mobile telephone number, which I recorded in my notebook as (xxx). Detective Kilani is of Egyptian background I have known him and his family from when he was a young child. Detective Kilani asked to see me and indicated that he needed my assistance. 6. Detective Kilani later came to my office and said to me that he and other officers were trying to gather information with respect to the Ahmed Fahda murder. At one stage in that conversation he said: ' the most importance witness in this case was Mr Bassam Said '. Detective Kilani also said that ' we need you because Mr Said is refusing to cooperate with the police '. 9. I was contacted again by Detective Kilani. He told me that Bassam Said was being held in custody and asked me if I would go with him to speak with Bassam Said. He came to my office and took me with him in his car to where Bassam Said was being held. 10. I am now advised that records show that this visit occurred on or about 8 July 2004. This accords with my recollection. I understand that this took place at the Long Bay gaol. My recollection as to precisely where I saw Bassam Said is not exactly clear, but accept that it occurred at the Long Bay gaol. I know that I have only met with Bassam Said once while he was in custody. 11. When we arrived, I recall that both Detective Kilani and I entered a small room. Bassam Said then came into the room. I sat with him. I do not recall whether Detective Kilani remained in the room the whole time or not. 12. I spoke in Arabic to Bassam Said and told him to the best of my recollection in words to the effect: ' First and foremost, the truth is the way to salvation. We do not want you to take sides with either group, we only want you to speak the truth and say what you actually saw with your own eyes '. 13. I asked Bassam about the different groupings. He explained to me who he believed to be with the Darwiches and who were with the Fahdas and he mentioned a number of names, some of which I no longer recall. However, I do recall the name of Naseam El-Zeyat as being mentioned. 14. He then explained to me: ' The police are saying that there was evidence that implicates Naseam El-Zeyat, however, I did not see Naseam '. 15. I then said to him: ' It is absolutely crucial for you to say what you saw in order to clear your conscience and your slate before Allah '. 16. He said to me: ' I swear father Sheikh, what I saw with my own eyes, I did say in my first statement. I assure you and I swear by Allah to you that I did not recognise the killers, I did not recognise anyone. However, the police do not believe me and they continue to insist and put pressure on me and ask me to confess that I recognise the killers. I did not see Naseam or anyone who is known to me. Had I seen Naseam, I would have said. They seem to think that I recognised the killers and that I am refusing to talk. My family and I are under pressure from everyone '. 17. I then told Detective Kilani: " Bassam has told the police the truth, he made a solemn oath to me that he did not recognise those who killed him '. 19. Until now, I have never been asked about this conversation with Bassam Said and I have never told anyone about this conversation with Bassam Said. 20. This affidavit has been interpreted to me at my office in the Lakemba Mosque." 320An investigation note created by Detective Kilani was in the following terms: "On 8 July 2004, the Mufti, Sheik Taj El-Hillaly and Detective Kilani attended the SPC and spoke with Bassam SAID. The mufti spoke with SAID and encouraged him to be truthful and continue to assist police. Said was spoken to by Detective Kilani and SAID stated that he was still adamant that he did not see Naseam El-Zeyat on the day of Ahmed Fahda's murder. He did, however, acknowledge that he may have mistaken El-Zeyat for Touma. This was due to him believing that Elzeyat had a shaved head and facial hair. Said also indicated that he still has intentions for applying for bail. He further stated that he will sign the last unsigned statement once he can be given a guarantee that he will be granted bail." 321Detective Kilani made an affidavit dated 21 July 2010 which is in the following terms: "1. I am a Detective Senior Constable of Police. I was involved in Strike Force Adder operating with Task Force Gain from 2004 to 2006. Strike Force Adder was established to investigate into the murder of Ahmed Fahda. 2. Following a request by Mr Eddie Nedim, Solicitor for the Appellant El-Zeyat, who made an inquiry about a date, I produced to the Office of the Director of Public prosecutions (ODPP) an Investigator's Note made by me. This note is annexed hereto and marked "A". 3. This note was made following a meeting between Sheikh Taj Eldeen Alhilali and Bassam Said on 8 July 2004, at which I was present. 4. Neither the note nor the fact of the meeting had previously been disclosed to the ODPP or the Appellants' legal advisers. 5. At the time of the meeting Bassam Said was in custody having been charged on 1 June 2004 with being an accessory after the fact to the murder of Ahmed Fahda. The investigations into that murder were continuing and included speaking to Bassam Said who had provided a statement on 5 November 2003 and an induced statement on 3 June 2004. Apart from operational and public interest immunity considerations for non-disclosure of such a meeting, Said's assistance was ongoing and was not complete. 6. My Investigator's Note refers to 'the last unsigned statement'. I have not located any such statement but believe this may relate to the information the basis of the induced statement dated 12 July 2004, which was not signed until 3 August 2004, and which I understand was later served as part of the brief of evidence together with the further induced statement of 16 December 2004." 322In paragraph 2 of his affidavit Detective Kilani did not say on what date he produced the investigator's note. However, I would infer that the note was produced to the office of the Director of Public Prosecutions, for the first time, only shortly before Detective Kilani made his affidavit. 323A solicitor in the office of the Director of Public Prosecutions made an affidavit on 21 July 2010. The solicitor had searched in the Director of Public Prosecutions files for the trials of the appellants and Darwiche. The solicitor had not located in those files any copy of the investigator's note or any copy of an unsigned statement by Bassam Said. However, in a file relating to Bassam Said the solicitor had found a document made on or about 15 July 2004 referring to an unsigned statement by Bassam Said, which had been received from police on 14 July 2004. In the document there were what purported to be extracts from the unsigned statement. These extracts suggest that the unsigned statement was, or was similar to, the signed statement by Bassam Said ("the third statement"), which, although dated 12 July 2004, was not signed until 3 August 2004. In that signed statement Bassam Said said that he recognised the second shooter as being El-Zeyat. 324The solicitor found in the same file three pages of photocopied handwritten notes. The solicitor stated in her affidavit "Neither the author nor the origin of these notes is known". It would seem quite possible, from the contents of the notes, that the author of the notes was Bassam Said himself but this is not certain. 325Affidavits were made by the appellants stating that they had had no knowledge of Bassam Said's conversation with Sheikh Alhilali until very recently.

SUBMISSIONS FOR THE APPELLANTS 326Some of the principal submissions made on behalf of the appellants in support of the grounds of appeal can be briefly summarised as follows. 327The investigator's note should have been disclosed to the appellants before the trial, in performance of the Crown's obligation of disclosure. If the investigator's note had been disclosed, inquiries would have been made of Sheikh Alhilali and the evidence the Sheikh has now given about his conversation with Bassam Said would have been obtained. That material could then have been used in cross-examination of Bassam Said, with a devastating effect on Bassam Said's credibility. 328In the conversation with Sheikh Alhilali Bassam Said swore to the Sheikh that he did not recognise either of the killers. This conversation occurred on 8 July, in between the making by Bassam Said of his second statement and the making of his third statement. In his second statement made on 3 June 2004 he had asserted that Aouad was one of the shooters but that he could not identify the other shooter. In his third statement dated 12 July 2004 and signed 3 August 2004, he asserted that Aouad and El-Zeyat were the shooters. What Bassam Said said to Sheikh Alhilali on 8 July 2004 was consistent with his first statement made on 5 November 2003, in which he had said that he did not recognise either of the shooters. 329What Bassam Said said on 8 July 2004 was said by him to a senior religious figure, who, it could be inferred, Bassam Said respected and was said after that religious figure had solemnly enjoined him to tell the truth. 330The investigator's note confirmed that Sheikh Alhilali had had a meeting with Bassam Said on 8 July 2004, that he had encouraged Bassam Said to tell the truth and that Bassam Said had been adamant on 8 July 2004 that he did not see El-Zeyat on the day of the murder. 331Counsel referred to an apparent inconsistency in the investigator's note. The investigator's note recorded Bassam Said as being adamant that he did not see El-Zeyat on the day of the murder. However, the investigator's note also recorded a willingness on the part of Bassam Said, even if only a conditional willingness, to sign "the last unsigned statement"; yet, if the unsigned statement was similar to the statement dated 12 July, Bassam Said was saying in the unsigned statement that he recognised El-Zeyat as being one of the killers. 332It was submitted that the final sentence in the investigator's note emphasised that Bassam Said's willingness to assist in the investigation was conditional upon him receiving benefits. 333It was submitted that evidence of the investigator's note and the conversation showed that some of the evidence given by Bassam Said at the trial was false, including an assertion by him that he was not asked by police, between the making of his second statement and the making of his third statement, to say who the second shooter was. 334It was submitted that Bassam Said was a crucial witness in the Crown case. There could be no dispute that he had been at the service station at the time of the shooting. He was not an indemnified witness and, although he had at one stage been charged with being an accessory after the fact, there was no suggestion at the trial that he had been criminally concerned in the murder.

CROWN SUBMISSIONS 335The principal submissions made by the Crown on these grounds can be briefly summarised as follows. 336It was submitted that evidence of the conversation on 8 July 2004 between Bassam Said and Sheikh Alhilali should not be considered as having led to any miscarriage of justice, when regard was had to the evidence which had been given at the trial adversely affecting Bassam Said's credibility, including that he had told lies, that he had made a number of inconsistent statements, that he had deliberately withheld information from the police, that he had only gradually revealed what he knew and that he had been willing to provide information, only if he received some benefit from the authorities in return. 337The absence of evidence of the conversation of 8 July at the trial had not prevented defence counsel at the trial submitting to the jury that Bassam Said's evidence identifying the two appellants as being the killers was not true and was the result of pressure which had been applied to him, including pressure by law enforcement authorities. 338In her summing up the trial judge had given the jury strong warnings about the need to exercise care in accepting evidence from Bassam Said. 339The only use which could have been made at the trial, of evidence about the conversation of 8 July 2004, would have been to further discredit a witness whose potential unreliability was, on the evidence which was before the jury, perfectly obvious and frankly acknowledged by the Crown. 340If Bassam Said had been confronted at the trial with his conversation with Sheikh Alhilali, it is likely that he would have described what he said to the Sheikh as "bullshit", just as he had described his similar assertions in his first statement of 5 November 2003. 341There was evidence at the trial that Bassam Said was not averse to disregarding a religious obligation to tell the truth. He had made an oath on the Koran to tell the truth before giving evidence before the Crime Commission but had then told what he later admitted to be lies in his evidence before the Crime Commission. 342What Bassam Said was recorded as saying in part of the investigator's note, that he did not see El-Zeyat on the day of the murder, was clearly false, because there was uncontroverted evidence that he had seen El-Zeyat in the morning and also in the evening of 30 October 2003, including surveillance photographs showing him at Menai in the same group as El-Zeyat. 343What Bassam Said was recorded as saying in a part of the investigator's note that "He did, however, acknowledge that he may have mistaken El-Zeyat for Touma" should be interpreted as indicating that Bassam Said had, prior to 8 July 2004, identified El-Zeyat as one of the shooters. 344It was submitted that the Crown case against the appellants was strong and that the part of the defence case, that it was the Hannouf brothers who were the killers, was weak.

DECISION - AOUAD GROUND 6(A), EL-ZEYAT GROUND 5 345In considering Aouad's fifth ground of appeal and El-Zeyat's second ground of appeal I referred to the principles to be applied by a Court of Criminal Appeal in considering a ground of appeal against conviction based on fresh evidence. 346It was not disputed that the evidence of the conversation of 8 July 2004 was fresh evidence, that is evidence which was not known to the appellants at the time of the trial and could not by the exercise of reasonable diligence have become known to them at the time of the trial. Sheikh Alhilali said in his affidavit that "until now" he had never been asked about the conversation and had never told anyone about the conversation. 347Nor was there any dispute about the credibility of the evidence, that is as evidence of what was said in the conversation (as distinct from evidence of the truth of the assertions made by Bassam Said in the conversation). As already noted, there was no application by the Crown to cross-examine Sheikh Alhilali on his affidavit and parts of Sheikh Alhilali's affidavit are confirmed by the investigator's note. 348The issue for this Court is whether the evidence of the conversation, in the context of the evidence given at the trial, would have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the appellants or whether there is a significant possibility that the jury acting reasonably would have acquitted the appellants. 349As was submitted by the Crown on this appeal, there was much evidence at the trial adversely affecting the credibility of Bassam Said. There was evidence at the trial that Bassam Said was generally a person of bad character and that in the police investigation he had told lies, had made inconsistent statements, had deliberately concealed information and had provided information only conditionally upon receiving some benefit and that warrants for his arrest had had to be issued to compel him to give evidence at the trial. 350There was also, as submitted by the Crown on this appeal, much evidence in the Crown case at the trial, apart from the evidence given by Bassam Said, which would not be affected by the fresh evidence. 351I have nevertheless concluded that, if evidence about the conversation on 8 July 2004 had been before the jury, the jury would have been likely to have entertained a reasonable doubt about the guilt of the appellants or, alternatively, there is a significant possibility that the jury might have acquitted the appellants. 352Bassam Said is a Moslem and Sheikh Alhilali was the most senior Islamic jurist in Australia. Bassam Said and Sheikh Alhilali knew each other. Sheikh Alhilali went with an investigating police officer to the gaol where Bassam Said was being held. At the gaol he stressed to Bassam Said the importance of his religious duty to tell the truth and to clear his conscience. Bassam Said addressed the Sheikh respectfully and swore by Allah that he did not recognise the killers. Although the conversation focussed on El-Zeyat, Bassam Said asserted in the conversation that he did not recognise either of the killers. 353In the conversation Bassam Said spoke of the pressures which had been put on him to say that he recognised the killers. 354In my opinion, if the fresh evidence had been available at the trial and had been used in the cross-examination of Bassam Said, a further serious blow would have been dealt to Bassam Said's credibility. 355Earlier in this judgment I summarised the evidence in the Crown case. As was submitted by the Crown on this appeal, there was much evidence in the Crown case other than Bassam Said's evidence. 356However, the only witnesses who actually identified the shooters were Bassam Said and the Hannouf brothers, Wahib Hannouf and Haissam Hannouf. 357An advantage to the Crown in Bassam Said's evidence was that Bassam Said was indisputably at the service station at the time of the shooting, within a few metres of the victim and the shooters, and would have had a good opportunity of observing the shooters. 358On the other hand, the evidence of the Hannouf brothers was open to the criticism that it could seem a remarkable coincidence that they happened to be travelling past the service station at the very time the shooting occurred. In accordance with the trial judge's directions in her summing up that the jury could look for independent support for the evidence of one witness in the evidence of another witness, the jury could have looked at Bassam Said's evidence for independent support for the evidence of the Hannouf brothers. 359Bassam Said also had the advantages as a witness for the Crown that he was not an indemnified witness and there was no suggestion at the trial that he had been criminally concerned in the murder. 360In my opinion, ground 6(a) of Aouad's appeal and ground 5 of El-Zeyat's appeal should be upheld.

DECISION - AOUAD GROUND 6(B), EL-ZEYAT GROUND 6 361It is clear that the investigator's note should have been disclosed to the appellants' legal representatives before the appellants' trial and counsel for the Crown on this appeal did not really make any submission to the contrary. As to the Crown's duty of disclosure see R v Reardon (2004) 60 NSWLR 454 at 468-469 (46-55) and Cornwell v R (2010) NSWCCA 59 at (210). The reasons given in paragraph 5 of Detective Kilani's affidavit, while they might have been legitimate reasons for temporarily not disclosing the note, were not legitimate reasons for not disclosing the note at some time before the trial was held. 362In Grey v The Queen (2000) 201 CLR 414 the prosecution had failed to disclose to the appellant's legal advisers a document capable of affecting the credibility of an important witness for the Crown at the trial. 363In their joint judgment, Gleeson CJ, Gummow and Callinan JJ held at paras 8 and 9 that the Court of Criminal Appeal had erred in dealing with this issue by reference to the principles applying to fresh evidence on an appeal, rather than as a case of lack of disclosure by the Crown, and failing to determine whether the failure of the Crown to disclose information in its possession had caused the trial to miscarry. Their Honours said that in a case where there had been a lack of disclosure by the Crown, the only question is whether the appeal should be dismissed because no substantial miscarriage of justice has actually occurred (that is, whether the proviso to s 6(1) of the Criminal Appeal Act should be applied in favour of the Crown). In determining whether no substantial miscarriage of justice has occurred what Brennan, Dawson and Toohey JJ said in their joint judgment in Wilde v The Queen (1988) 164 CLR 365 at 371-2 should be applied, namely: "Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514 or 'a real chance of acquittal' to use the phrase of Barwick CJ in Reg v Storey (1978) 140 CLR 364 at 376. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen (1977) 137 CLR 517 at 524; Reg v Storey; Gallagher v The Queen (1986) 160 CLR 392 at 412-413. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz V The Queen . The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case." 364Since Grey was decided there have, of course, been other High Court decisions on the proviso and in particular Weiss v The Queen (2005) 224 CLR 300. It was not suggested on this appeal that what was said by the High Court in Grey and Wilde was affected by what the High Court said in the later case of Weiss . The present case would seem to me to fall within the class of case identified by the High Court in Weiss at 317(45), where it would be proper for an appellate court to allow an appeal and order a new trial, even if the appellate court were satisfied to the requisite degree of the appellant's guilt, for the reason that there was at the trial a significant denial of procedural fairness. 365It is true that there are factual differences between the present case and Grey . In Grey the witness in question whose credibility was affected by the document which had not been disclosed, had been presented by the Crown at the trial as a reliable witness, whereas in the present case there was much evidence, and the Crown had frankly acknowledged at the trial, that Bassam Said's credibility could be attacked on a number of grounds. 366In the present case, if the investigator's note had been disclosed, it is likely that enquiries would have been made of Sheikh Alhilali by the appellants' legal representatives and the appellants' legal representatives would have obtained the information in Sheikh Alhilali's affidavit. That information could then have been used in the cross-examination of Bassam Said. If Bassam Said had denied or had not admitted the conversation, evidence of the conversation could have been given, if necessary after leave had been obtained ( Evidence Act s 106). 367Although Bassam Said's credibility was challenged on a number of grounds at the trial, the further evidence, if it had been available at the trial, would have dealt a serious blow to his credibility. Bassam Said's evidence was important for the reasons given by counsel for the appellants. In my opinion, it cannot be said, if the test in Wilde and Grey is applied, that the appellants did not lose a chance of acquittal as a result of the investigator's note not having been disclosed. Alternatively I consider that the failure to disclose the note involved a significant denial of procedural fairness. 368In my opinion Aouad's ground of appeal 6(b) and El-Zeyat's ground of appeal 6 should be upheld. In upholding these grounds of appeal I have already considered the proviso to s 6(1) of the Criminal Appeal Act .

APPLICATION BY EL-ZEYAT TO RELY ON ADDITIONAL GROUNDS OF APPEAL 369As noted earlier in this judgment, the principal hearing of these appeals took place on 29 and 30 June 2010. At the conclusion of the hearing the Court reserved its decision on the appeals. 370As also noted earlier in this judgment, in July 2010 an application was made by each appellant for leave to rely on an additional ground or grounds of appeal. Leave was granted to Aouad to raise an additional ground of appeal which became ground 6 and 6(b) and to El-Zeyat to raise additional grounds of appeal which became grounds 5 and 6. The Court received submissions on these grounds from the appellants and the Crown. The Court then again reserved its decision on the appeals. 371Immediately following the principal hearing of the present appeals the Court, constituted by the same judges, heard appeals by Aouad, El-Zeyat, Adnan Darwiche and Abbas Osman against their convictions on various charges. It will be convenient to refer to these appeals as "the related appeals". At the conclusion of the hearing of the related appeals in July 2010 the Court reserved its decision on those appeals. 372In November 2010, while the Court was still reserved on both the present appeals and the related appeals, an application was made by Adnan Darwiche in his related appeal for leave to rely on additional grounds of appeal. This application and a subsequent further application by Darwiche for leave to rely on another additional ground of appeal are dealt with in Johnson J's judgment in the related appeals. 373After Darwiche had made his first application in his related appeal, the solicitors for each of Aouad and El-Zeyat sent letters to the Registrar of the Court of Criminal Appeal requesting that the Court not deliver its judgments in either the present appeals or the related appeals, until Aouad and El-Zeyat and their legal advisers had had an opportunity to consider whether they also should apply for leave to rely on additional grounds of appeal. The Court acceded to these requests. At the time the requests were made a full draft of the present judgment dealing with the existing grounds of appeal had been prepared. 374In February 2011 an application was made by El-Zeyat for leave to rely on two additional grounds of appeal in both his present appeal and his related appeal. No application has been made by Aouad to rely on any further ground of appeal in either of his appeals. 375The additional grounds of appeal which El-Zeyat sought leave to rely on were:- Ground 7 A miscarriage of justice resulted from the absence at trial of fresh evidence, namely the affidavit of Joe Osman affirmed on 12 October 2010. Ground 8 A miscarriage of justice resulted from the absence of trial of fresh evidence, namely the affidavit of Houssam El-Jamal affirmed on 31 January 2011. 376Insofar as El- Zeyat's application was for leave to rely on the additional grounds of appeal in his related appeal, his application is dealt with by Johnson J in his judgment in the related appeals. In my present judgment I will confine my consideration of El-Zeyat's application to the question of whether leave should be granted to him to rely on the additional grounds of appeal in his present appeal. 377Both of the proposed additional grounds of appeal are based on alleged fresh evidence. The principles to be applied by this Court in considering a ground of appeal based on alleged fresh evidence, as stated by Kirby J in R v Abou-Chabake, have been set out earlier in this judgment and I will not now repeat them.

ADDITIONAL GROUND 7 378In his affidavit of 12 October 2010 Joe Osman, also known as Fadi El-Jamal, stated that in November 2003 he was kidnapped by Wahib and Haissam Hannouf but managed to escape. For his own protection he was kept in a room in a hotel with police for a number of days. While in the room at the hotel he was asked by police officers what he knew about Darwiche. 379According to Osman's affidavit, he was presented by detectives with a statement using the name "Samear Havda" and, after initially refusing to sign the statement, he ultimately did sign the statement due to his feelings of vulnerability and "intense intimidation" by the police. 380Osman said in his affidavit that at a later court hearing in 2006 he was called as a witness and shown the statement. He told the court that the statement was not "my words and that I did not know what the statement contained". 381No copy of the statement made in the name of Samear Havda was annexed to Osman's affidavit. 382Part of a transcript of a hearing on 14 March 2006 in which Osman gave evidence and was asked about the statement was annexed to an affidavit by El-Zeyat's solicitor. 383A number of affidavits were filed on behalf of the Crown in which allegations made by Osman in his affidavit were denied. Copies of a statement dated 18 November 2003 and a statement dated 24 May 2004, each made in the name of Samear Havda and signed by Osman, were annexed to an affidavit by a police officer. 384I do not consider that it is necessary in this judgment to refer in detail to all of the evidence which was filed. I am satisfied that it is quite clear that, for a number of reasons, leave should be refused to rely on this ground. 385Even extending to the appellant El-Zeyat the latitude required in determining whether alleged fresh evidence was available or could by reasonable diligence have been available to him at his trial, the alleged fresh evidence was so available. The two statements by Osman were referred to in the brief of evidence served on El-Zeyat before the trial. The court hearing on 14 March 2006 was a voir dire enquiry conducted before the trial, at which El Zeyat was represented and in which Osman was called as a witness and asked questions about the two statements and police officers were then called who in turn gave evidence about the statements. 386Osman's evidence is not "credible or at least capable of belief". Among other things, it is clear that he signed, not just a single statement, but two statements, the second of which was made almost six months after the first statement. In the second statement Osman referred to the earlier statement and said that he wanted to make "some minor amendments" to it. The amendments made by the second statement can truly be described as "only minor". 387Other matters adversely affecting the credibility of Osman's affidavit are developed by Johnson J in his judgment in the related appeals. 388Even if the evidence was fresh and capable of belief, it would not, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of El-Zeyat or to give rise to a significant possibility that a jury acting reasonably would have acquitted him. 389The statement of 18 November 2003 is almost entirely about Adnan Darwiche. There appear to be only four paragraphs in the statement referring to the killing of Ahmed Fahda. The assertions made in these paragraphs are first-hand, second-hand or even third-hand hearsay or mere speculation and, in any event, are concerned with the role that Adnan Darwiche might have played in the killing and not with any role played by El-Zeyat in the killing. 390I would regard as mere speculation a submission by counsel for El-Zeyat that Osman's evidence was evidence of improper conduct on the part of certain police officers in obtaining a statement from him, from which it might be inferred that the same police officers had engaged in similar improper conduct in obtaining statements from other Crown witnesses. 391I note that Osman did not give evidence in the trial from which the present appeals have been brought.

ADDITIONAL GROUND 8 392Houssam El-Jamal is a brother of Joe Osman. 393In the affidavit of 31 January 2010 Houssam El-Jamal said that he also had been kidnapped in November 2003 by Wahib Hannouf and Haissam Hannouf. He had been held for three days and had then been released, after his family had paid a ransom. 394In his affidavit Houssam El-Jamal said that in 2004 he had been charged with an offence and had been refused bail. While in custody, bail refused, he was held in B wing within the SPC section of the Long Bay Correctional Centre. Subsequently Bassam Said was moved to this wing. 395Paragraphs 14 and 16 and 17 of the affidavit were in the following terms: "14. Immediately, I developed a friendship with Bassam Said, and he confided in me the reason why he was moved to 'B' wing. Bassam informed me that the reason why he was moved from 'C' Wing was due to consistent communication over the walls in 'C' Wing to the Hannouf brothers. ... 16. A few days after Bassam's arrival he stated to me words to the effect; 'A police officer by the name of Tamer Kilani told me to make a statement, stating that the shooters of Ahmed Fahda were Ramzy Awad and Naseam El-Zeyat, even though I did not see who the shooters were.' 17. Further he informed me that police had forced him to make statements. He stated to me words to the effect of; 'The police said to me, if you do not make a statement stating that they were the shooters, you won't be getting out of jail, you will be getting life.' " 396In subsequent parts of his affidavit Houssam El-Jamal said that on a number of occasions, when he and Bassam Said were in the recreation yard of the wing, he witnessed Bassam Said communicating with the Hannouf brothers, including Wahib Hannouf and Haissam Hannouf, who were in the recreation yard of C wing, the two recreation yards being adjacent to each other. Houssam El-Jamal said in his affidavit that he had heard Bassam Said and the Hannouf brothers communicating with each other about the statements they had made to police about the murder of Ahmed Fahda and some of the offences in the related appeals and about "getting their stories straight". To the extent to which the affidavit gives any particulars of the communications between Bassam Said and the Hannouf brothers, the particulars are about the offences in the related appeals and not the murder of Ahmed Fahda. 397The Court received quite extensive evidence and written submissions about the proposed additional ground 8. There are serious issues about the alleged fresh evidence at least as to whether it should be regarded as fresh or capable of belief. However, in my opinion, it is not necessary for the Court to attempt to resolve these issues in order to determine whether leave to rely on the additional ground of appeal should be granted. 398Insofar as the alleged fresh evidence is that Bassam Said said to Houssam El-Jamal that he did not see who the shooters of Ahmed Fahda were but was subjected to pressure to say that he did recognise the shooters, the alleged evidence is similar in effect to the evidence of Sheikh Alhilali about what the Sheikh said he was told by Bassam Said on 8 July 2004. As I noted earlier in the judgment, there was no dispute that the Sheikh's evidence was fresh and credible. Substantially on the basis of the evidence from the Sheikh, confirmed in part by Detective Kilani's investigation note, I have already held that ground of appeal 5 should be upheld. 399Insofar as the alleged fresh evidence is evidence of communications between Bassam Said and the Hannouf brothers about the statements they would give to police, the evidence, if it were to be accepted as fresh and capable of belief, might have some significance. 400However, even if all parts of Houssam El-Jamal's affidavit were to be regarded as satisfying all the conditions for evidence being regarded as fresh evidence, the fresh evidence would not be such as to entitle El-Zeyat to an outright acquittal but only to a quashing of the verdict of guilty, with an order being made for a new trial. Those are the orders I consider should be made in consequence of my upholding the existing grounds of appeal 5 and 6. In these circumstances, I would refuse leave to rely on the additional ground of appeal.

CONCLUSION 401Having allowed grounds of appeal against conviction of each appellant, I would allow each appellant's appeal against conviction, quash the conviction of each appellant and order a new trial of each appellant. 402JOHNSON J: I agree with James J.

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