Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R

Catchwords

235 FLR 320 R v Moti [2010] QCA 178240 FLR 218 Rozenes v Beljajev [1995] 1 VR 533 R v Abusafiah (1991) 24 NSWLR 531 R v Fuge [2001] NSWCCA 208123 A Crim R 310 Ilioski v R [2006] NSWCCA 164 Fingleton v The Queen [2005] HCA 34227 CLR 166 Jago v District Court of NSW [1989] HCA 46168 CLR 23 R v WRC [2003] NSWCCA 39459 NSWLR 273 at 282 Dupas v The Queen [2010] HCA 20241 CLR 237 Williams v Spautz [1992] HCA 34174 CLR 509 Walton v Gardiner [1993] HCA 77177 CLR 378 R (Cth) v Petroulias (No. 9) [2007] NSWSC 84 Doney v The Queen [1990] HCA 5161 ALJR 1 R v Pham [2004] NSWCCA 190 Makarov v R (No. 3) [2008] NSWCCA 293 Demirok v The Queen [1977] HCA 21186 CLR 427 Fittock v The Queen [2003] HCA 9217 CLR 508 Gilbert v The Queen [2000] HCA 15201 CLR 414 R v Toki (No. 3) [2000] NSWSC 999116 A Crim R 536 Papakosmas v The Queen [1999] HCA 37196 CLR 297 R v Wilson [2005] NSWCCA 20

Judgment (69 paragraphs)

[1]

tions Act 1986 Crimes (Appeal and Review) Act 2001 Criminal Appeal Rules Cases Cited: R v Darwiche and Ors [2006] NSWSC 1167 R v Lawrence (1980) 1 NSWLR 122 R v Gregory [2002] NSWCCA 199 R v Unger [1977] 2 NSWLR McCall v R [2010] NSWCCA 174 R v Moti [2009] QSC 407; 235 FLR 320 R v Moti [2010] QCA 178; 240 FLR 218 Rozenes v Beljajev [1995] 1 VR 533 R v Abusafiah (1991) 24 NSWLR 531 R v Fuge [2001] NSWCCA 208; 123 A Crim R 310 Ilioski v R [2006] NSWCCA 164 Fingleton v The Queen [2005] HCA 34; 227 CLR 166 Jago v District Court of NSW [1989] HCA 46; 168 CLR 23 R v WRC [2003] NSWCCA 394; 59 NSWLR 273 at 282 Dupas v The Queen [2010] HCA 20; 241 CLR 237 Williams v Spautz [1992] HCA 34; 174 CLR 509 Walton v Gardiner [1993] HCA 77; 177 CLR 378 R (Cth) v Petroulias (No. 9) [2007] NSWSC 84 Doney v The Queen [1990] HCA 51; 171 CLR 207 R v Birks (1990) 19 NSWLR 677 R v Darwiche and Ors [2006] NSWSC 929 Osman v R [2006] NSWCCA 196 R v Guldur (1986) 8 NSWLR 12 De Jesus v The Queen [1986] HCA 65; 61 ALJR 1 R v Pham [2004] NSWCCA 190 Makarov v R (No. 3) [2008] NSWCCA 293 Demirok v The Queen [1977] HCA 21; 137 CLR 20 R v Leaman (1987) 28 A Crim R 104 R v Connell (No. 1) (1992) 8 WAR 518 Yeo v R [2005] NSWCCA 49 Crofts v The Queen [1996] HCA 22; 186 CLR 427 Fittock v The Queen [2003] HCA 9; 217 CLR 508 Gilbert v The Queen [2000] HCA 15; 201 CLR 414 R v Toki (No. 3) [2000] NSWSC 999; 116 A Crim R 536 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 Aouad v R; El-Zeyat v R [2011] NSWCCA 61 Kanaan v R [2006] NSWCCA 109 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Steve v R [2008] NSWCCA 231; 189 A Crim R 68 Mahmood v State of Western Australia [2008] HCA 1; 232 CLR 397 Louizos v R [2009] NSWCCA 71; 194 A Crim R 223 FDP v R [2008] NSWCCA 317; 192 A Crim R 87 Wing Cheong Li v R [2010] NSWCCA 40 El Hassan v R [2007] NSWCCA 148 El Jalkh v R [2009] NSWCCA 139 R v Lowery and King (No. 3) [1972] VR 939 Domican v The Queen [1992] HCA 13; 173 CLR 555 R v Rose [2002] NSWCCA 455; 55 NSWLR 701 R v Davidson [2009] NSWCCA 150; 75 NSWLR 150 R v Plevac [1999] NSWCCA 351 R v Fowler [2000] NSWCCA 142 Carr v Finance Corporation of Australia Limited [No. 1] [1981] HCA 20; 147 CLR 246 Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 Burrell v The Queen [2008] HCA 34; 238 CLR 218 Nguyen v R [2008] NSWCCA 322 R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 R v Busby (1982) 75 Cr App R 79 R v Beattie [1996] 40 NSWLR 155 Category: Principal judgment Parties: Adnan Darwiche (Appellant) Nasaem El-Zeyat (Appellant) Ramzi Aouad (Appellant) Abass Osman (Appellant) Regina (Respondent) Representation: Counsel: Mr P Lange (Appellant Darwiche) Mr MC Ramage QC; Mr IS McLachlan (Appellant El-Zeyat) Mr P Hamill SC; Mr CJG Smith (Appellant Aouad) Ms A Francis (Appellant Osman) Ms DML Woodburne SC; Ms JA Girdham (Respondent) Solicitors: Lawyers Corp Pty Limited (Appellant Darwiche) Nedim Lawyers (Appellant El-Zeyat) George Sten & Co (Appellant Aouad) Bannister Kyriacou Nasser Lawyers (Appellant Osman) Solicitor for Public Prosecutions (Respondent) File Number(s): Decision under appeal Jurisdiction: 9111 Date of Decision: 2006-11-10 00:00:00 Before: Bell J and a jury File Number(s): 2006/5282 (Appellant Darwiche) 2005/2620 (Appellant El-Zeyat) 2005/2678 (Appellant Aouad) 2005/2957 (Appellant Osman)

[2]

Heading in Judgment Paragraph(s) The Charges and Verdicts 4-12 Sentences 13-17 Factual Background 18-24 Grounds of Appeal 25-33 Applications for Extension of Time to Appeal 34-43 Summary of the Crown Case Against Each Appellant 44-124 · Crown Case Against The Appellant Darwiche 46-92 · Crown Case Against The Appellant El-Zeyat 93-100 · Crown Case Against The Appellant Aouad 101-111 · Crown Case Against The Appellant Osman 112-118 · Ballistics Evidence Connecting Crime Scenes 119-124 Indemnities and Benefits Provided to Principal Crown Witnesses 125-159 · Khaled Taleb 126-137 · Wahib Hannouf 138-155 · Haissam Hannouf 156-159 The Abuse of Process Ground (Darwiche Ground 1 Only) 160-182 · Submissions 160-168 · Decision 169-182 Grounds of Appeal Complaining of Prejudice Flowing from the Joint Trial of the Appellants (Darwiche Ground 2; El-Zeyat Ground 2; Aouad Ground 2; Osman Ground 4) 183-272 · Submissions of Appellants 187-210 · Submissions of the Crown 211-232 · Decision 233-272 Ground of Appeal that Trial Judge Erred in Permitting Crown to Adduce Evidence that the Appellant Aouad Was Criminally Involved in Counts 3, 4 and 5 When He Was Not Charged With Those Offences (Aouad Ground 3) 273-285 · Submissions 273-277 · Decision 278-285 Grounds of Appeal Challenging the Direction that Evidence of One Indemnified Witness Could be Considered as Providing Support for the Evidence of Another Indemnified Witness (Darwiche Ground 5; El-Zeyat Ground 3; Aouad Grounds 1 and 1(b); Osman Ground 3(c)) 286-292 · Submissions 287-288 · Decision 289-292 Ground of Appeal Concerning Admission of Evidence of Reasons Why Various Witnesses Had Not Given Evidence (Darwiche Ground 3) 293-302 · Submissions 293-298 · Decision 299-302 Ground of Appeal Alleging Error in Refusing to Discharge the Jury (Darwiche Ground 4) 303-318 · Submissions 303-308 · Decision 309-318 Ground of Appeal Alleging Error by Trial Judge in Omitting Details of the Evidence of Abdul Taleb During the Summing Up (Darwiche Ground 6) 319-328 · Submissions 319-322 · Decision 323-328 Ground of Appeal Asserting Inadequate Directions to the Jury Concerning the Use to be Made of Evidence of Detective Wakeham That a Relative of the Appellant Darwiche Had Sought to Influence the Witness Abdul Taleb (Darwiche Ground 7) 329-337 · Submissions 330-334 · Decision 335-337 Ground of Appeal that the Trial Judge Erred in Failing to Direct the Jury Concerning the Dangers of Identification Evidence Proffered by Jamal Razzak (Darwiche Ground 8) 338-351 · Submissions 339-343 · Decision 344-351 Ground of Appeal that the Trial Judge Erred in Continuing with a Portion of the Summing Up in Circumstances Where the Appellant Darwiche's Counsel Was Unable to Remain in Court Due to a Severe Illness (Darwiche Ground 9) 352-367 · Submissions 357-362 · Decision 363-367 Ground of Appeal Suggesting Error on the Part of the Trial Judge in Failing to Direct the Jury that it had to be Satisfied Beyond Reasonable Doubt of the Motive of the Appellant Darwiche and that any Discreditable Conduct Relied Upon to Prove Such Motive Must Also be Proved Beyond Reasonable Doubt (Darwiche Ground 10) 368-380 · Submissions 368-375 · Decision 376-380 Grounds of Appeal Challenging the Admissibility, the Use in the Crown Prosecutor's Closing Address and the Directions Given by the Trial Judge With Respect to the Evidence of Haissam Hannouf (Osman Grounds 1, 2, 3, 5 and 6) 381-424 · Submissions 383-389 · Decision 390-424 Applications Made After Hearing and Whilst Judgment is Reserved by Appellants Darwiche and El-Zeyat for Leave to Add Further Grounds of Appeal 425-437 The Applicable Test - Claim of Miscarriage of Justice Resulting from Absence at the Trial of Fresh Evidence 438-439 Application by Appellant Darwiche for Leave to Add Ground 11 - the Affidavit of Sheikh Tay Eldeen Alhilali 440-451 · Submissions 445-447 · Decision 448-451 Applications by Appellant Darwiche to Add Ground 12 and the Appellant El-Zeyat to Add Ground 7 - the Joe Osman/Fadi El-Jamal Affidavit 452-496 · Submissions 458-465 · Decision 466-496 Applications by Appellant Darwiche to Add Ground 13 and the Appellant El-Zeyat to Add Ground 8 - The Houssam El-Jamal Affidavit 497-533 · Submissions 510-515 · Decision 516-533 Conclusion 534-536 Proposed Orders 537-540

[3]

Judgment 1McCLELLAN CJ at CL : I agree with Johnson J. 2JAMES J : I agree with Johnson J. 3JOHNSON J : The Appellants, Adnan Darwiche, Nasaem El-Zeyat (also known as "El-Zayet" ), Ramzi Aouad and Abass Osman, were convicted of various offences on 9 August 2006 following a trial before Bell J (as her Honour then was) and a jury. Each Appellant now appeals against his convictions.

[4]

The Charges and Verdicts 4The indictment dated 19 June 2006 contained seven counts. 5The first count alleged that Adnan Darwiche, on 17 June 2001, at Bankstown in the State of New South Wales did shoot at Bilal Razzak with intent to murder. He was acquitted on this count. 6The second count alleged (as an alternative to the first count) that Adnan Darwiche, on 17 June 2001, at Bankstown in the State of New South Wales maliciously discharged a loaded firearm with intent to cause grievous bodily harm to Bilal Razzak. He was convicted of this offence. 7The third count alleged that Adnan Darwiche, on 27 August 2003, at Condell Park in the State of New South Wales did shoot at Farouk Razzak with intent to murder. Adnan Darwiche was convicted of this offence. 8The fourth count alleged (as an alternative to the third count) that Adnan Darwiche, on 27 August 2003, at Condell Park in the State of New South Wales maliciously discharged a loaded firearm with intent to cause grievous bodily harm to Farouk Razzak. Given the verdict on Count 3, no verdict was taken on this count. 9The fifth count alleged that Adnan Darwiche, on 29 August 2003, at Lakemba in the State of New South Wales did murder Ali Abdul Razzak. The jury was unable to agree upon a verdict and was discharged on this count. 10The sixth count alleged that Adnan Darwiche, Nasaem El-Zeyat, Ramzi Aouad and Abass Osman, on 14 October 2003, at Greenacre in the State of New South Wales did murder Ziad Razzak. Each Appellant was convicted of this murder. 11The seventh count alleged that Adnan Darwiche, Nasaem El-Zeyat, Ramzi Aouad and Abass Osman, on 14 October 2003, at Greenacre in the State of New South Wales did murder Mervat Nemra. Each Appellant was convicted of this murder. 12Adnan Darwiche appeals against his convictions on Counts 2, 3, 6 and 7. Each of Nasaem El-Zeyat, Ramzi Aouad and Abass Osman appeal against their convictions on Counts 6 and 7.

[5]

The Sentences 13On 10 November 2006, Bell J sentenced each of the Appellants: R v Darwiche and Ors [2006] NSWSC 1167. 14Adnan Darwiche was sentenced to the following terms of imprisonment: (a) Count 2 - maliciously discharging a loaded firearm with intent to do grievous bodily harm to Bilal Razzak - fixed term of imprisonment for eight years commencing on 28 November 2003; (b) Count 3 - shoot at Farouk Razzak with intent to murder - imprisonment for 18 years commencing on 28 November 2005, comprising a non-parole period of 14 years and a balance of term of four years; (c) Count 6 - murder of Ziad Razzak - imprisonment for life commencing on 10 November 2006; (d) Count 7 - murder of Mervat Nemra - imprisonment for life commencing on 10 November 2006. 15Nasaem El-Zeyat was sentenced to the following terms of imprisonment: (a) Count 6 - murder of Ziad Razzak - imprisonment for life commencing on 26 May 2004; (b) Count 7 - murder of Mervat Nemra - imprisonment for life commencing on 26 May 2004. 16Ramzi Aouad was sentenced to the following terms of imprisonment: (a) Count 6 - murder of Ziad Razzak - imprisonment for life commencing on 26 May 2004; (b) Count 7 - murder of Mervat Nemra - imprisonment for life commencing on 26 May 2004. 17Abass Osman was sentenced to the following terms of imprisonment: (a) Count 6 - murder of Ziad Razzak - imprisonment for 27 years commencing on 11 October 2006, comprising a non-parole period of 22 years and a balance of term of five years; (b) Count 7 - murder of Mervat Nemra - imprisonment for 27 years commencing on 11 October 2006, comprising a non-parole period of 22 years and a balance of term of five years.

[6]

Factual Background 18The circumstances of the offences found proved against the Appellants, and the background to those offences, were summarised in the remarks on sentence of Bell J. Her Honour outlined, at [3]-[5], the history of the dispute between members of the Darwiche and Razzak families which formed that background: "3 Each of the offences for which Adnan Darwiche is to be sentenced has its genesis in a dispute between him and the younger generation of the Razzak family. In late 2000 and early 2001 Adnan Darwiche was involved in the supply of cannabis in South Western Sydney. His right-hand man was an associate named Khaled Taleb. Their competition included Bilal Razzak and his cousins, Gehad and Ziad. In February 2001 there was a confrontation between Adnan Darwiche and Khaled Taleb and Bilal Razzak outside Nemra's Caf in Bankstown. Taleb and Darwiche assaulted Bilal Razzak. The incident does not give rise to any charge against Adnan Darwiche and it is irrelevant save that it appears to have marked the commencement of the hostile relations between the two families, which culminated in the commission of each of the offences. After the confrontation there was some further trouble between Bilal Razzak and the younger generation of the Darwiche family. Following one such episode, on the evening of 25 February 2001, a number of shots were fired into Adnan Darwiche's car, which was parked outside the Darwiche family home in Lilac Street, Punchbowl. 4 Adnan Darwiche viewed the firing of shots at his car, outside his family home, as a serious affront to his standing within the criminal milieu in the Punchbowl - Lakemba area. He believed that Bilal Razzak was responsible for it. Later that night he went with Khaled Taleb and two other associates to a block of units located in Sir Joseph Banks Street, Bankstown, where Bilal Razzak was believed to be living. The driver waited in the car and Darwiche, Taleb and the third man each fired shots at the unit. 5 A few days later there was a meeting attended by members of the Darwiche and Razzak families in an endeavour to settle the dispute between them. During the meeting Adnan Darwiche threatened Bilal Razzak, demanding that he leave the country. A matter of days later Bilal Razzak flew to Lebanon where he remained until early May 2001." 19Bell J then turned to the circumstances of Adnan Darwiche's ("the Appellant Darwiche") offence in Count 2, the shooting of Bilal Razzak on 17 June 2001: "6 The first offence of which Adnan Darwiche was convicted occurred a few weeks after Bilal Razzak's return to Australia. On the evening of 17 June Adnan Darwiche and another man entered the Razzak family unit in the block in Sir Joseph Banks Street, Bankstown. Both men were wearing full-face balaclavas, they were dressed in dark clothing and each had a Glock-style pistol in his hand. Bilal was in his bedroom, listening to music with his cousin, Samear. Adnan Darwiche opened the bedroom door, pointed his pistol at Bilal Razzak and fired it five times. At least three bullets struck Bilal Razzak; one entered his right flank and passed through his liver, vertebral column, left kidney and part of the colon, exiting on the left side of his body. There were entry and exit wounds to his right and the left knees. For a time following the assault he was paralysed. He has since recovered the use of his legs. 7 Adnan Darwiche was charged with shooting at Bilal Razzak with intent to murder him and in the alternative with discharging a loaded firearm with intent to do grievous harm. He was acquitted of the more serious count. The verdict is readily explained. The discharge of the firearm took place in a confined area in circumstances in which Bilal Razzak was helpless and without any means of escape. There was no obstacle to Adnan Darwiche delivering a coup de gras had that been his intention. As the jury found, it was not. His intention was to kneecap Bilal Razzak and thereby to establish his superiority over him." 20Her Honour referred to further events in the period between the offences in Counts 2 and 3, including a so-called peace agreement said to have been brokered between the two families: "8 In the period following the shooting there were further attempts to broker peace between the two families. These were rapidly brought to a head following the release of Gehad Razzak from prison. Gehad was an influential member of the younger generation of the Razzak family. Shortly after his release he met Adnan Darwiche and in the course of the meeting Darwiche agreed to pay a cash sum to Bilal Razzak as compensation for having shot him. The money, a sum of the order of $10,000 or $15,000, was paid to Gehad Razzak on Bilal's behalf and for a period there was peace between the two families. 9 Around the time the peace agreement was reached Adnan Darwiche abandoned his drug supply business. He was much affected by the death of his father, Farouk Darwiche, and troubled that his father had died without attending the Hajj. Adnan Darwiche became interested in religion, attending the Hajj in 2002 and 2003. Khaled Taleb accompanied him on the first occasion. 10 Adnan Darwiche was overseas in July 2003 when an incident occurred which re-ignited the hostility between him and members of the Razzak family. On 30 July Khaled Taleb was shot by two masked men as he was speaking with a friend in the Halal Butcher's Shop, Bankstown. He sustained gunshot wounds to each of his legs. The injury to his left foot was particularly severe. He was taken to Liverpool Hospital where he underwent surgery the following day. He remained in hospital for some time. Taleb had a strong belief that his assailants were Gehad and Ziad Razzak. 11 While he was in hospital Taleb spoke with Adnan Darwiche by telephone and told him what had happened. Darwiche returned to Australia shortly after this and visited Taleb in hospital. In the course of his meetings with Taleb in hospital, and at Taleb's family home following his discharge, Adnan Darwiche made clear that it was his intention to avenge his shooting. 12 I am satisfied beyond reasonable doubt that, regardless of what may have prompted the shooting of Taleb, it was viewed by Adnan Darwiche as a breach of his agreement with the Razzak family. Taleb was known to be his lieutenant and the shooting was an affront to his authority." 21Her Honour referred to the Appellant Darwiche's offence in Count 3 committed on 27 August 2003 at Yanderra Street, Condell Park (known as the "Yanderra Street shooting" ): "13 In August 2003 Frank Razzak's son, Samear, was living at 106 Yanderra Street, Condell Park (the Razzak premises). Adnan Darwiche believed that Ziad Razzak was also residing at this address. 14 On the evening of 27 August, Adnan Darwiche took up a position on the nature strip near the corner of Fourth Avenue and Yanderra Street from where he had a view of the front verandah of the Razzak premises. He was with a companion. Both were armed with SKS semi-automatic rifles. A third man had been assigned the task of drawing the occupants of the premises outside so that they would be easy targets. In accordance with Adnan Darwiche's instructions this associate drove along Yanderra Street and pulled up outside the Razzak premises. He fired 11 rounds from a handgun into a white Mazda that was parked outside the premises. The lure worked, just as it had been planned. Frank Razzak came out onto the lighted front verandah. He saw Adnan Darwiche and his companion. He started to call out to them and, as he did so, they both opened fire. In all, 55 rounds were fired in the direction of the verandah of the Razzak premises; 28 from one SKS and 27 from the other. Frank Razzak was not hit. Bullets passed through the aluminium-clad walls of the front bedrooms. Frank Razzak's teenage daughter, Jomana, who is disabled and cannot walk without assistance, was in one of these rooms. She crouched helplessly on the floor as bullets coursed through the room. 15 Neither Adnan Darwiche nor his fellow gunman possessed any skill in the use of these high-powered weapons. The gunfire, although directed at the verandah of the Razzak premises, was poorly controlled and a number of bullets strayed well to the east of the premises. Two bullets travelled through the western wall of No. 100, across the master bedroom, exiting and travelling through the bedroom of No 98 where they came to rest. Another bullet travelled as far as No. 96 passing through an upstairs bedroom. It is remarkable that no person was injured as the result of this display of uncontrolled gun violence. 16 Adnan Darwiche's dispute was not with Frank Razzak who was a contemporary of Farouk Darwiche and who was not involved in criminal activity. However, by the time Darwiche came to carry out the shooting in Yanderra Street his intention was to kill any member of the Razzak family. After the shooting Khaled Taleb asked him, 'Why did you shoot [Frank], he had nothing to do with this?', Adnan Darwiche responded, 'Fuck them. Fuck all of them'." 22Events following the Yanderra Street shooting were described by her Honour as follows: "17 In the aftermath of the Yanderra Street shooting there were further hostilities between Adnan Darwiche and his associates and the younger members of the Razzak family. It is not necessary to detail them. It is sufficient to note that following the shooting, Ziad and Gehad Razzak went into hiding. They asked if they could stay with a friend named Ali Hamka. Ali was living with his partner, Melissa Nemra, at 5 Lawford Street, Greenacre. He agreed to let the Razzak brothers stay with him. Melissa moved out of the house because she and Ali had fears for her safety. Their two children, Mohamed who was aged 4 years, and Macy who was aged 2 years, were staying with Melissa's parents. Melissa visited Ali once a week on her day off to clean the house. On the evening of 13 October Melissa decided to stay at the house at 5 Lawford Street." 23Her Honour recited events in the lead up to the murders in Counts 6 and 7, at Lawford Street, Greenacre (known as the "Lawford Street shooting" ): "18 Adnan Darwiche came to learn that Ziad and Gehad Razzak had been staying at 5 Lawford Street, Greenacre. He decided to launch an attack on the premises with a view to killing them. The scheme involved a considerable degree of planning. A car had to be stolen and secreted prior to the attack so that it could be used to transport the gunmen to and from the scene. Adnan Darwiche and his associates had access to a unit in Punchbowl, at which a number of weapons including a rocket launcher were stored. On 13 October Adnan Darwiche, Ramzi Aouad, Khaled Taleb and a man named Mohammed met at the unit. They inspected the cache of firearms and ammunition. They put on gloves that had been acquired for the purpose and commenced to clean each round of ammunition with gun oil. Adnan Darwiche warned them to be careful not to let any hair fall onto the bullets because of the risk of later DNA identification. Each round was wiped clean and loaded into magazines. The magazines were then fitted to the guns: the two SKS rifles that had been used in the Yanderra Street shooting; a 9 mm Glock pistol and a .45 Mach 10 pistol. They cleaned the guns to make sure that they would not jam. 19 The rocket launcher was inspected and there was some discussion about the need to handle it with care. On the evening of 13 October each of these weapons and the rocket launcher were taken from the unit to Naseam El Zeyat's home in David Street, Greenacre in readiness for the attack. By early evening the stolen vehicle, a Nissan Pulsar had been driven to the El-Zeyat home and was parked in the garage. 20 During the course of the evening Adnan Darwiche, Khaled Taleb, Naseam El Zeyat, Ramzi Aouad and Abass Osman were all present in the dining room of the El-Zeyat premises with the weapons on display when discussion took place about how the attack was to be staged. Adnan Darwiche led the discussion, explaining the role that each man was to play. Abass Osman was to be the driver. Darwiche, Aouad and Mohammed were to be the shooters. Darwiche had earlier designated Taleb as the driver but he decided against this, since in the event they got into any difficulties, Taleb would be a liability because he was still on crutches. Naseam El-Zeyat insisted that he wanted to be a shooter too. Darwiche consented to him joining the party. The instructions given by Darwiche included the position that each gunman was to take up outside the house and that each was to commence firing at the top of his section of the front wall lowering his aim in an 'S' shaped pattern down to the bottom of the wall. In this way Darwiche covered the contingency that the occupants of the house might drop to the floor when the shooting began." 24Bell J made the following findings concerning the Lawford Street shooting on 14 October 2003: "21 At a little after 3.00am Abass Osman dropped Adnan Darwiche, Naseam El-Zeyat, Ramzi Aouad and Mohammed off near Lawford Street. Each was armed. Melissa Nemra was asleep in the front bedroom. Ziad Razzak was lying on the lounge in the adjacent front room watching television and Ali Hamka was sitting in a chair next to him. The four gunmen stood outside the house, which is located in a quiet cul-de-sac, and opened fire, discharging 100 rounds between them. Of these 55 penetrated the front wall of the premises, which was of fibro construction. 22 A bullet passed through Melissa Nemra's neck, fatally wounding her. She died within minutes as Ali Hamka held her. He frantically tried to get assistance by telephoning the emergency services operator. He could hear Ziad Razzak coughing. Ziad Razzak had been struck by more than one bullet. One penetrated the back of his skull. He was removed from the scene by ambulance and he died a matter of hours later in hospital. Ali Hamka survived uninjured. 23 The stolen Nissan Pulsar was set alight in Pandora Street, Greenacre and located by the police within two hours of the shooting."

[7]

Grounds of Appeal 25There was some overlap in the grounds of appeal relied upon by the Appellants. I will set out the grounds of appeal for each Appellant in their entirety. When the time comes to consider the grounds of appeal, I will group them so that common grounds are addressed at the same time. 26At the hearing before this Court between 30 June and 2 July 2010, the Appellant Darwiche relied upon the following grounds of appeal: (a) Ground 1 - her Honour erred in failing to stay the proceedings as an abuse of process in circumstances where the prosecution was entirely based upon the evidence of witnesses who had received benefits to such a very considerable extent that to rely upon their evidence would bring the justice system into disrepute. (b) Ground 2 - her Honour erred by failing to sever the various counts on the indictment, by giving insufficient weight to the prejudice which the Appellant would suffer as a result of a joint trial. (c) Ground 3 - her Honour erred in permitting evidence to be given before the jury as to the reason why various witnesses had not given evidence, when such evidence was either irrelevant or should have been excluded pursuant to s.137 Evidence Act 1995 . (d) Ground 4 - her Honour erred in refusing to discharge the jury in circumstances where one of the jurors had acted in such a way as to demonstrate a reasonable apprehension of bias. (e) Ground 5 - her Honour erred in directing the jury that the evidence of one indemnified witness could be considered as providing support for the evidence of another indemnified witness. (f) Ground 6 - her Honour erred in omitting the details of the evidence of Mr Abdul Taleb during the summing up. (g) Ground 7 - her Honour erred in inadequately directing the jury as to the use which could be made of the evidence of Detective Senior Constable Wakeham that a relative of the Appellant Darwiche purportedly had sought to influence the witness Abdul Taleb. (h) Ground 8 - her Honour erred in failing to direct the jury about the dangers of the identification evidence proffered by Jamal Razzak. (i) Ground 9 - her Honour erred in continuing with a portion of the summing up in circumstances where the Appellant Darwiche's counsel was unable to remain in Court due to a severe illness. (j) Ground 10 - her Honour erred in failing, in respect of Counts 6 and 7, to direct the jury that it had to be satisfied beyond reasonable doubt of the motive of the Appellant Darwiche and that any discreditable conduct relied upon to prove such motive must also be proved beyond reasonable doubt. 27After the Court had reserved judgment on the appeals, and without prior notice to the Court, Mr Lange, counsel for the Appellant Darwiche, furnished to the Registrar a written submission on 3 November 2010, accompanied by a Notice of Motion and affidavits, in which he sought leave to add two further grounds of appeal. I will return to that application later in this judgment. 28Later again, on 1 February 2011, a further Notice of Motion was furnished to the Registrar seeking leave to add yet another ground of appeal. Again, I will return to this topic. 29At the hearing of the appeal on 30 June to 2 July 2010, the Appellant Nasaem El-Zeyat ("the Appellant El-Zeyat") relied upon the following grounds of appeal (Grounds 1 and 2 relating to his appeal from another trial): (a) Ground 3 - 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" . (b) Ground 4 - the joint trial with the Appellant Darwiche gave rise to a miscarriage of justice. 30On 14 February 2011, a Notice of Motion was provided to the Registrar in which the Appellant El-Zeyat sought leave to add two further grounds of appeal. I will return to this topic. 31The Appellant Ramzi Aouad ("the Appellant Aouad") relied upon the following grounds of appeal: (a) Ground 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 Aouad, 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. (b) Ground 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" . (c) Ground 2 - the trial miscarried as a result of: (i) the failure to sever Counts 1-5 from Counts 6 and 7, and to order separate trials in respect of Counts 1-5 or in respect to the Appellant Darwiche; and (ii) the failure to discharge the jury in respect of the Appellant Aouad's case, and to order separate trials, upon application by defence counsel at the conclusion of the Crown case. (d) Ground 3 - the trial Judge erred in permitting the Crown to adduce evidence that the Appellant Aouad was criminally involved in Counts 3, 4 and 5 when the Appellant Aouad was not charged with those offences. 32The Appellant Abass Osman ( "the Appellant Osman" ) relied upon the following grounds of appeal: (a) Ground 1 - the trial miscarried on account of the Crown Prosecutor's address concerning the evidence of Haissam Hannouf. (b) Ground 2(a) - the trial miscarried on account of her Honour allowing the Crown to adduce, in the re-examination of Haissam Hannouf, evidence of second [hand] hearsay which: (i) went beyond the purported relevance of the evidence, namely to re-establish Wahib Hannouf's credibility; and (ii) which went further and included Haissam Hannouf's opinion of the truth of this second [hand] hearsay. (c) Ground 3(a) - her Honour's directions to the jury were inadequate in that they failed, in light of the Crown address, to appropriately limit the use which could be made of the evidence of Haissam Hannouf. (d) Ground 3(b) - her Honour's directions did not cure the prejudice which flowed to the Appellant Osman in light of the admission of the evidence of Haissam Hannouf. (e) Ground 3(c) - her Honour erred in directing the jury, in the circumstances of the Appellant Osman's case, that they could use the evidence of one indemnified witness, Haissam Hannouf, as support for Wahib Hannouf. (f) Ground 4 - the joint trial with the Appellant Darwiche gave rise to a miscarriage of justice. 33During the hearing of the appeal on 1 July 2010, counsel for the Appellant Osman sought leave to rely upon the following supplementary grounds of appeal: (a) Ground 5 - her Honour erred in referring to the evidence of Haissam Hannouf as being evidence that before the Lawford Street shooting, Wahib Hannouf had given an account to him of the event that was to take place, having come as a result of seeing the Appellant Darwiche (also known as "Biggie" ) and the Appellant Osman, when in fact the evidence of Wahib Hannouf as reported to Haissam Hannouf came as a result of hearing the previous representations of others. (b) Ground 6 - her Honour erred in admitting the evidence of Haissam Hannouf as to the previous representations made by Wahib Hannouf to him, because they were not admissible pursuant to s.66(2)(b) Evidence Act 1995 .

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Applications for Extension of Time to Appeal 34The Appellant Darwiche requires an extension of time to file a notice of appeal to this Court. He was convicted on 9 August 2006 and sentenced for his offences on 10 November 2006. A notice of intention to appeal was filed, but this expired on 25 August 2008. A notice of appeal and notice of application for an extension of time dated 12 February 2009 were received by the Court of Criminal Appeal on 23 February 2009. 35The Appellant Darwiche relies on an affidavit affirmed on 11 June 2010 by his solicitor, Abdul Reslan, to explain the delay in lodging the notice. That affidavit referred to the giving of instructions to appeal in late 2006, followed by a lengthy delay whilst legal aid was sought. In the meantime, appeals had been filed by the other Appellants. 36The Crown opposes the application for extension of time relying upon the statement in R v Lawrence (1980) 1 NSWLR 122 at 148 that, where any considerable delay has occurred, exceptional circumstances will be required before an appeal is permitted to proceed. Whilst acknowledging that the interests of justice are an important consideration on an application for leave ( R v Gregory [2002] NSWCCA 199 at [41]), and that the Appellant Darwiche's convictions and life sentences were clearly of manifest importance to him and thus a significant reason in favour of an extension of time, the Crown submitted that as there was no merit in the proposed grounds of appeal, an extension of time to appeal should be refused. 37Mr Lange, counsel for the Appellant Darwiche, acknowledged the public interest in the avoidance of delay in the determination of criminal appeals, but emphasised countervailing factors which he submitted supported an extension of time to appeal. 38There is a clear public interest in the avoidance of delay in bringing appeals to this Court against conviction and sentence. The time limit for the bringing of an appeal to this Court under the Criminal Appeal Act 1912 reflects the principle of finality in litigation: R v Unger [1977] 2 NSWLR 990 at 995-996; R v Gregory at [39]-[41]. There is provision for extension of time to appeal and this power should be exercised with the interests of justice in mind, given the usual consequences of conviction following trial on indictment. However, the longer time passes without an appeal being filed, the more solid ought be the expectation of the community, witnesses, victims and the families of victims that the criminal proceedings are over. This is a significant consideration to be taken into account on a leave application. Should an appeal against conviction succeed and a retrial is ordered, witnesses will be required to testify once again, with the further passage of time resulting from a delayed appeal having the potential to affect detrimentally the administration of justice. 39This Court has recently refused an extension of time to appeal against conviction for murder because of the absence of any satisfactory explanation for the delay and the lack of merit in the proposed grounds of appeal: McCall v R [2010] NSWCCA 174. When considering the interests of justice in relation to an application for leave to appeal, regard should be had to the interests of the Crown (representing the community) and the administration of justice generally, as well as the interests of the applicant for leave: R v Gregory at [41]; McCall v R at [6]. 40The Appellant Darwiche was convicted of most serious crimes and his sentences include life imprisonment. The other Appellants stood trial at the same time as the Appellant Darwiche, and their appeals are proceeding to hearing before this Court. There are a number of overlapping grounds of appeal upon which all Appellants seek to rely. It appears from the affidavit relied upon in support of this application, that some of the reasons for delay were beyond the control of the Appellant Darwiche. A number of his appeal grounds are at least arguable. I am satisfied that exceptional circumstances exist, so that it is appropriate that an extension of time be allowed for the Appellant Darwiche's appeal against conviction to be heard by this Court with respect to Grounds 1 to 10, being the grounds considered by the Court at the hearing of the appeal in June-July 2010. 41The application for leave to add further grounds of appeal will be considered later in this judgment. 42The Appellant Osman also requires an extension of time to file a notice of appeal to this Court. An affidavit sworn 30 June 2010 by his solicitor, Kiki Kyriacou, was read in support of this application. The Crown opposed the application for an extension of time upon similar grounds to those raised on the application by the Appellant Darwiche. 43The Appellant Osman was convicted of very serious crimes and was sentenced to lengthy terms of imprisonment. The affidavit of Mr Kyriacou provides some explanation for the delay on his client's part. A number of his appeal grounds are at least arguable. I am satisfied that an extension of time ought be allowed for the Appellant Osman to appeal against conviction with respect to the grounds argued at the hearing of the appeal in June-July 2010.

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Summary of the Crown Case Against Each Appellant 44It is appropriate to set out in summary form the nature of the Crown case against each Appellant at the trial before Bell J, for the purpose of dealing with the various grounds of appeal. 45Critical Crown witnesses in the trials of the Appellants were Khaled Taleb, Wahib Hannouf and Haissam Hannouf, although the evidence of each of these witnesses did not implicate each of the Appellants. Each was an indemnified witness (see [125] and following), who had a previous association of one form or another with the Appellants, and in many instances had been good friends for a time.

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Crown Case Against The Appellant Darwiche 46On each count charged against the Appellant Darwiche, evidence was led by the Crown from Khaled Taleb, whom the Crown alleged was the Appellant Darwiche's former right-hand man in a drug supply business. Khaled Taleb's evidence was that the Appellant Darwiche was the moving force in the planning and commission of each count. 47It was the defence hypothesis that Khaled Taleb was the perpetrator, and that his knowledge of those events arose from the fact that he bore criminal responsibility for each count. 48Evidence was adduced at the trial of events concerning the dispute between the Darwiche and Razzak families, summarised in the remarks on sentence at [18] above. 49It was the Crown case that the Appellant Darwiche was one of the gunmen who attacked Bilal Razzak on 17 June 2001 (Counts 1 and 2). Khaled Taleb gave evidence that the Appellant Darwiche called him after the shooting and told him that "They had gotten the bloke they were after" . He asked Darwiche "Why didn't you call me?" and Darwiche replied "I couldn't call you because it happened so quick" (T1154). The following day, the Appellant Darwiche told Khaled Taleb that Abdul Darwiche had been the driver. According to the Appellant Darwiche, Abdul Darwiche had remained outside and that he and Mitch Ayoubi entered the unit. The Appellant Darwiche told Khaled Taleb that he had fired the shots that had struck Bilal Razzak. 50Jamal Razzak recognised the Appellant Darwiche at the scene immediately after he had heard the gunshots inside his unit. It was his evidence that the Appellant Darwiche matched the physical description of the man who fired the weapon. 51There was no issue at trial that, after this shooting, the Appellant Darwiche paid an amount of compensation to Bilal Razzak as part of the peace agreement. That money was paid because Bilal Razzak had threatened to speak to the police. The fact that the money was paid by the Appellant Darwiche, the Crown submitted, evinced that he, and not Khaled Taleb, was the shooter on 17 June 2001. 52As set out in Bell J's remarks on sentence, hostilities ceased following the peace agreement, and there were no further episodes of violence between the Appellant Darwiche and his associates and the Razzak family from late 2001 to 30 July 2003 when Khaled Taleb was shot at a butcher shop in Bankstown. 53Khaled Taleb remained in hospital for over a fortnight as a result of wounds to his left leg and foot sustained in the butcher shop shooting. During his stay in hospital, he was regularly visited by the Appellant Aouad and the Appellant Darwiche. Khaled Taleb told both the Appellant Darwiche and the Appellant Aouad that he believed the gunmen were Gehad and Ziad Razzak. It was Khaled Taleb's evidence that, during a visit to him in hospital, the Appellant Darwiche said in the Appellant Aouad's presence " Fuck them, fuck them all. We'll get them all, fuck them. The first chance we get" (T1166). 54Khaled Taleb gave evidence of other conversations he had with the Appellant Darwiche and the Appellant Aouad, during which it was reported to him that the Razzaks were the shooters. He said (T1165): "I asked Eddie [the Appellant Darwiche] , 'Who told you this was them? It was Bill Assoum was [t] elling them.' After Eddie said, 'Which guns, were used?' I said, 'A Tougref, a 45.' That is when Ramzi says, 'It's true, Assoum would have a Tougref and they tried to sell it to me. He must have sold that same gun to the Razzaks, and the ones they used to shoot you. So Bilal's not lying. Bill Assoum is not lying, it was [them] '." 55According to Khaled Taleb, it was on this same occasion that the Appellant Darwiche went on to say (T1165): "Okay, that's it. We're going to suss them out. We're going to start sussing them out and finding out where they are staying after, everything about them. And then once if we find out anything they're fuckin' dead. We're going to get them one by one." 56During a further conversation, again in the Appellant Aoaud's presence, Khaled Taleb suggested that they should get Gehad Razzak first because Gehad Razzak was the head of the family and the others would ''shit themselves" if they got him (T1166). 57On the day Khaled Taleb was discharged (27 August 2003), the Appellant Aouad, his wife and the Appellant Darwiche all came to the hospital. Khaled Taleb then went to stay at his home in Lurnea where there was a meeting between the Appellant Darwiche, Abdul Darwiche, the Appellant Aouad and (he thought) Mohammed Touma, during which the Appellant Darwiche said that Gehad Razzak and Ziad Razzak were staying in Yanderra Street. There was further discussion about "getting" Gehad and Ziad Razzak. 58It was the Crown case that the Appellant Darwiche and another gunman fired shots at Farouk Razzak whilst he was standing on the front veranda of his house at 106 Yanderra Street, Condell Park on 27 August 2003 (Counts 3 and 4). 59At the time of the Yanderra Street shooting (see [21] above), Khaled Taleb was using crutches. Farouk Razzak did not report seeing any man on crutches at the scene. Telephone call-charge records placed Khaled Taleb's phone in Casula, well away from Condell Park, whereas the Appellant Darwiche's phone was around Condell Park at the time of the shooting. Khaled Taleb denied that he was present at the Yanderra Street shooting, denied that he was one of the shooters, and denied that he had organised the shooting (T1381). 60Khaled Taleb's evidence was that the next day, 28 August 2003, the Appellant Darwiche admitted to him (T1185.13): "Well Ramzi drove by. He shot at the house me and Abdul on the corner and after Ziggy ran out with a gun in his hands and straight after his father Frank came out. As soon as they ran out we started shooting at them but we fucking missed them". 61Khaled Taleb asked the Appellant Darwiche "Why did you shoot [Farouk Razzak] , he had nothing to do with this?" The Appellant Darwiche responded "Fuck them. Fuck all of them" . 62It was the Crown case that the Appellant Darwiche's grievance had extended beyond Ziad and Gehad Razzak. He now sought revenge against the whole Razzak family as a result of what he perceived to be their breach of and disrespect for the peace agreement flowing from the shooting of Khaled Taleb. 63At 1.21 pm on 29 August 2003, following the conclusion of the Friday midday prayer, Ali Abdul Razzak was shot and killed whilst seated in his car which was parked near the Lakemba Mosque (Count 5). Witnesses observed the passenger of a small black hatchback vehicle, who was holding a black pistol, get out of the car and fire shots at Ali Abdul Razzak through the windscreen of his car. The shooter got back into the passenger seat of the vehicle, which drove off. Both the driver and passenger of the black hatchback wore balaclavas. Fourteen fired cartridge cases were found at the scene. 64The Crown contended that due to the injuries Khaleb Taleb had received when he was shot, about which there was medical evidence (T1770-1774), he was not physically able to participate in the shooting of Ali Abdul Razzak. 65Khaled Taleb denied that he had a motive to kill Ali Abdul Razzak. His evidence was that at about 2.00 pm, when he was resting at his sister's house, the Appellant Darwiche arrived. Khaled Taleb went outside and saw a black Holden Barina - a "hottie" (that is, it was stolen). Ahmad (also known as "Gary" ) Awad was the driver of the vehicle. They drove to Khaled Taleb's uncle's home. In the course of the trip, the Appellant Darwiche said "Ali, he's dead ... I saw him take his last breath ... I saw one bullet hit him right up the top of his eye" (T1186). Darwiche told him that he had to get rid of "this piece" . Darwiche also said he had unloaded the whole magazine on him. Khaled Taleb asked "Did anyone see youse?" The Appellant Darwiche responded "We bala'd up". The Appellant Darwiche kept repeating "See what I did for you, see" . He handed Khaled Taleb a gun, a .40 calibre Glock pistol, instructing him to get rid of it. Khaled Taleb cut the pistol up with a grinder, which was located in the garage of his uncle's house (T1186-1189). 66Call-charge records were consistent with Khaled Taleb's phone travelling from Casula to the area of his uncle's house (Exhibit EEE), and whilst the Appellant Darwiche's phone had been diverted to voicemail from 1.44 pm to 4.18 pm (Exhibit LLL), thereafter and until 6.21 pm, traffic between Khaled Taleb's, the Appellant Aouad's and the Appellant Darwiche's telephones became constant. 67The Crown alleged that the Appellant Darwiche had various motives for the killing, aside from the lack of respect demonstrated by the breach of the peace agreement. He had told Khaled Taleb that he had never liked Ali Abdul Razzak, notwithstanding that he had been married to his sister, Khadjie Darwiche. Their marriage had been punctuated with acts of violence and their separation and divorce was bitter, albeit that Farouk Razzak acknowledged that the Appellant Darwiche had supported Ali Abdul Razzak at an AVO hearing. In any event, by 29 August 2003, Ali Abdul Razzak was no longer a member of the Darwiche family. 68At about 1.30 am on 30 August 2003, the Aouad house at Lurnea and Zena Taleb's house at Casula were the targets of drive-by shootings. The Crown asserted that these occurred in retaliation for the Ali Abdul Razzak killing. In cross-examination, Khaled Taleb denied that the Appellant Darwiche was disinterested in these events, and call-charge records demonstrate that a series of calls were made between and amongst the Appellant Aouad, Khaled Taleb and the Appellant Darwiche in the aftermath. 69At 5.00 pm on 8 October 2003, there was a shooting incident between the occupants of a blue Magna (Razzaks) and a silver 4WD (the Appellant Darwiche and the Appellant Aouad) at the intersection of Reilly and Liverpool Streets, Lurnea (the "Reilly Street shooting" ). Ballistics evidence linked one of the guns used during this incident with a firearm discharged during the Sir Joseph Banks Street shooting on 17 June 2001 at the Razzak apartment block (see [49] above). 70Khaled Taleb's evidence was that he was on the veranda of the Appellant Aouad's parents' house in Boundary Street when the Magna drove past. Fearful that he might be shot, he hid near a neighbour's fence. He saw the silver 4WD pursue the blue Magna, after which he knocked on the neighbour's door and asked if he could hide in the backyard. Later he spoke to the Appellant Darwiche and the Appellant Aouad and saw a bullet hole in the windscreen of their car. 71Khaled Taleb denied that he was in the silver 4WD at the time of the shootout. The descriptions of the occupants of that car provided by a witness, Rose D'Angelo, were consistent with the occupants being the Appellant Darwiche and the Appellant Aouad (Exhibit YYY). The Crown asserted that the call-charge records and telephone intercept material supported Khaled Taleb's account. 72Khaled Taleb gave detailed evidence against the Appellant Darwiche with respect to events leading up to and including the Lawford Street shooting. 73Khaled Taleb stated that at about 10.00 pm or 11.00 pm a few days after the Reilly Street shooting, the Appellant Darwiche picked him up in a white Honda Civic. The Appellant Aouad was also in the car. The Appellant Darwiche turned the music up and whispered in his ear that they had found out where the Razzaks were staying. The Appellant Darwiche then drove Khaled Taleb down Roberts Road and pointed out the relevant house to him in Lawford Street. The following day, Khaled Taleb was in the car with the Appellant Darwiche, the Appellant Aouad, and Mohammed Touma and they drove to a park in Bankstown. Prior to going to the park, the Appellant Darwiche instructed them to remove the batteries from their mobile telephones so that they would not be tracked by police. At the park, the Appellant Darwiche told them that he was certain that the Razzaks were staying at the Lawford Street house. 74According to Khaled Taleb, the Appellant Darwiche then told them that "this thing's going to be done; we are going to be doing it tomorrow" . The Appellant Darwiche told them that Khaled Taleb would do the driving and that they would leave from the Appellant El-Zeyat's house because it was nearby and they could leave the guns there. After this discussion, Khaled Taleb went for a drive with the Appellant Darwiche, the Appellant Aouad and Mohammed Touma. The Appellant Darwiche indicated to him where on Roberts Road the car would be parked, then showed him where the car would be dumped. 75In cross-examination, Khaled Taleb denied that he was the moving force in the planning and commission of the attack. He denied that during a meeting, the Appellant Darwiche had disowned him and that the Appellant Darwiche had stated "You should not shoot at a house" , before then leaving (T1416.25; T1611.38-1612.5). 76It was the evidence of Wahib Hannouf that, hours before the Lawford Street shooting, between 8.00 pm and 9.00 pm on 13 October 2003, he went to visit Ali Osman at the Appellant Osman's home. The Appellant Darwiche was there speaking to the Appellant Osman. Wahib Hannouf greeted them and sat on a wall allowing the Appellant Darwiche and the Appellant Osman to continue talking. He heard the Appellant Darwiche say to the Appellant Osman "You'll be the driver so the Razzaks won't recognise you" , and then "Is the Hachie ready, the stolen car?" The Appellant Osman replied that his brother, Ali, had organised a vehicle and it was waiting nearby. The Appellant Darwiche then said "It's going to be me, Fidel, Erdt and Abbas [sic] and you'll be the driver" . The Appellant Osman nodded his head. The Appellant Darwiche said "Crazy Khaled was burning to drive the car, but he can't come because he's paralysed" (T1017). 77Wahib Hannouf heard the Appellant Darwiche tell the Appellant Osman that he would see him at the Appellant El-Zeyat's house in Greenacre at 2.00 am, and that at 3.00 am "there would be fireworks" . He heard the Appellant Osman query the Appellant Darwiche as to whether he was sure that the Razzaks would be there. The Appellant Darwiche responded that one of his boys had driven past and had seen Gehad Razzak's 4WD, and that one of the Razzaks would be there for certain. After this conversation, the Appellant Darwiche left in his maroon Commodore. 78Khaled Taleb gave evidence that on the afternoon prior to the Lawford Street shooting, the weapons were transported from the unit in Punchbowl to the Appellant El-Zeyat's home in David Street, Greenacre. A dark-coloured Nissan Pulsar had been stolen and was driven to the house between 4.00 pm and 7.30 pm. This was deliberately done during peak hour to minimise their chances of being pulled over by police. According to Khaled Taleb he, the Appellant Darwiche, the Appellant El-Zeyat, the Appellant Aouad, the Appellant Osman and Ahmad Awad were all present at the house. The Appellant Darwiche said the Nissan Pulsar was the vehicle they would use that night. 79The weapons at the unit were two SKS rifles (which Khaled Taleb and the Appellant Aouad had taken there the day before from Abdul Darwiche's house in Green Valley), a Mach 10 and a nine-millimetre Glock automatic pistol. When they got to the unit, the Appellant Darwiche instructed them to clean all the bullets to make sure there was no hair or DNA on them. They each wore gloves when they performed this task (T1199-1205). 80The Appellant Aouad then removed a plastic bag from one of the cupboards and handed it to the Appellant Darwiche, who removed a rocket launcher from it. The Appellant El-Zeyat "freaked out" and asked who was going to use the rocket launcher. The Appellant Darwiche said they were not sure whether they were going to use it at all. The Appellant Darwiche then indicated that he had to go home in case he was under police surveillance. He intended to return later that night and would go out via the backyard so that police would not know that he had left. Khaled Taleb, the Appellant Aouad, Mohammed Touma and the Appellant El-Zeyat remained at the house. 81The Appellant Darwiche returned to The Appellant El-Zeyat's Greenacre home after midnight. The Appellant Osman arrived a short time later. When the Appellant Osman saw the rocket launcher, he too was concerned and wanted to know who would use it. The Appellant Darwiche told him they were still discussing it. The Appellant Osman told the Appellant Darwiche that they could not use it because the noise would burst their eardrums. The Appellant Darwiche continued to express his uncertainty and stated that the rocket launcher might pass straight through the house. Ultimately, it was decided the rocket launcher would not be used. 82Khaled Taleb asked the Appellant Darwiche what the Appellant Osman was doing at the house. The Appellant Darwiche told him that the Appellant Osman would be driving because it was considered Khaled Taleb's injuries would become a liability if they were pulled over by police. Khaled Taleb did not want to show any signs of weakness and insisted that he wanted to drive, but the Appellant Darwiche refused. 83The Appellant Darwiche then outlined each man's role. The Appellant Osman would drive the vehicle and park it in the spot he had earlier shown to Khaled Taleb while the Appellant Darwiche, the Appellant Aouad and Mohammad Touma would go to the house and each shoot at different parts of the house: the Appellant Aouad at the lounge room, Mohammed Touma at the middle of the house and the Appellant Darwiche at the bedroom. The Appellant Darwiche told them to start shooting at the top of the house and move down in an " S " shape, so they could still hit the occupants even if they dropped to the floor (T1212). 84According to Khaled Taleb, the Appellant El-Zeyat then told the Appellant Darwiche that he too wanted to go, and the Appellant Darwiche agreed. The Appellant Darwiche took the black SKS rifle, Mohammed Touma took the one with the wooden handle, the Appellant Aouad took the Mach 10 and the Appellant El-Zeyat took the nine millimetre automatic Glock. The Glock was the same weapon that Khaled Taleb had used when he shot at Sarkis Timber on Watson Road in Padstow, and the same weapon that the Appellant Darwiche had used when he had shot at Bilal Razzak's house in Bankstown (T1212-1213). 85The Appellant Darwiche, the Appellant Aouad, the Appellant El-Zeyat, the Appellant Osman and Mohammed Touma then left. Khaled Taleb remained at the Appellant El-Zeyat's house with Ahmad Awad. They went outside so they could hear the gunshots, but did not hear anything. Ahmad Awad then left and Khaled Taleb went back into the house. 86A short time later, a car pulled up at the Appellant El-Zeyat's house. The Appellant Darwiche, the Appellant Aouad, the Appellant El-Zeyat and Mohammed Touma returned and entered through the back. The Appellant Osman was not with them (T1213). Khaled Taleb asked the Appellant Darwiche "What happened, did you do it?" The Appellant Darwiche replied "Yes, fucken oath we did." The Appellant Darwiche was in a hurry and indicated that he wanted to get changed and return to his house before police realised he was not there. The others also changed their clothes, and it was arranged that Ahmad Awad would burn them. The Appellant Darwiche then left. 87During the evening of 16 October 2003, Khaled Taleb and the Appellant Aouad met up with the Appellant Darwiche at a park in Liverpool. The Appellant Darwiche said that he was sure that he had been the one to hit Ziad Razzak because he was the one shooting at the lounge room. The Appellant Darwiche said that the guns had been melted down and the vehicle had been doused in petrol and set alight. The Appellant Darwiche said to Khaled Taleb: "Listen, just make sure that you don't fucking say nothing to the fucking coppers. If you do, all right, I'll kill you and your family to make sure that you don't turn against me - if you turn against me I'll kill you and your whole family". 88Khaled Taleb assured the Appellant Darwiche that he had nothing to worry about (T1224-1225.52ff). Subsequently, the Appellant Darwiche made demands for money from Khaled Taleb for "all the drama" and for the weapons that had been used in the shootings. Khaled Taleb felt threatened that there would be serious consequences if he did not come up with the money. 89Khaled Taleb and the Appellant Darwiche met again on 17 October 2003, firstly at the Appellant Darwiche's home in Silverwater and then at a park nearby. At the park, the Appellant Darwiche told Khaled Taleb that Gehad Razzak was saying that Khaled Taleb had been speaking with police, and asked if he was wearing a listening device. Khaled Taleb believed that the Appellant Darwiche would shoot him on the spot. To convince the Appellant Darwiche that he was not speaking with police and that he was not wearing a listening device, Khaled Taleb said that he shot Ali Razzak and that he had shot everyone else too (T1228). 90Following this meeting, Khaled Taleb made up his mind that he would leave Australia and go to Lebanon. He left because he believed he was in danger, not because he was responsible for any killings. The Crown submitted that a series of intercepted phone calls between the Appellant Darwiche and Khaled Taleb made around this time was instructive of the true nature of the relationship between them, and demonstrated that the Appellant Darwiche was the dominant and more powerful person. 91On 18 October 2003, Khaled Taleb sold some furniture and drove to Melbourne with his parents and his disabled brother. While on the road to Melbourne, Khaled Taleb had a telephone conversation with the Appellant Darwiche (Exhibit LLL). During that conversation, the Appellant Darwiche called Khaled Taleb a "fuckwit" and told him to "get the money you mother-fucker" . In another call, the Appellant Darwiche told off Khaled Taleb for mentioning money over the telephone and swore at him, calling him a "fuckin' gronk" (Exhibit MMM; T1536). 92The Appellant Darwiche did not give evidence at the trial nor was any witness called in the defence case. The defence embraced the evidence of Abdul Taleb, to which reference will be made later in this judgment in the context of the Appellant Darwiche's Ground 6. The Appellant Darwiche's defence was marked by extensive cross-examination of the principal Crown witness, Khaled Taleb, and, to a lesser extent, Wahib Hannouf, concerning character, their various illegal activities, their dealings with the police, their motives to lie and the benefits each gained as a result of their co-operation with the authorities.

[11]

Crown Case Against the Appellant El-Zeyat 93The Appellant El-Zeyat was charged with and convicted of the Lawford Street shooting, being the murders of Ziad Razzak and Mervat Nemra on 14 October 2003. 94It was the Crown case that the Appellant El-Zeyat's participation in the joint criminal enterprise with the Appellant Darwiche and his co-offenders was a late development. Nonetheless, the Crown alleged that he played a crucial role by providing his home at David Street, Greenacre, as the location from which the participants embarked on their enterprise. The house was a short distance between the targeted address at Lawford Street and the place where the car was to be dumped and burned at Pandora Street. The Appellant El-Zeyat was also said to be one of the gunmen. 95The Crown case against the Appellant El-Zeyat relied upon evidence from Khaled Taleb. 96I have already referred to much of Khaled Taleb's evidence concerning the Lawford Street shooting in outlining the Crown case against the Appellant Darwiche. To the extent which that evidence relates to conversations or events involving the Appellant El-Zeyat, it is unnecessary to repeat it here. What follows are those parts of Khaled Taleb's evidence specifically relied upon by the Crown in its case against the Appellant El-Zeyat. 97As mentioned at [86], Khaled Taleb gave evidence that the Appellant Darwiche, the Appellant Aouad, the Appellant El-Zeyat and Mohammed Touma all returned to the Appellant El-Zeyat's unit in Greenacre shortly after the Lawford Street shooting. Upon their return, the Appellant Darwiche changed clothes and left. Khaled Taleb, the Appellant Aouad, the Appellant El-Zeyat and Mohammed Touma remained in the lounge room waiting for the events of the night to be reported on the news. 98While they were watching television, reference to the shooting appeared via a written banner on the bottom of the screen reporting that a house had been robbed, that one female was dead and a male person was in a critical condition in hospital. This occurred at about 5.00 am or 6.00 am. Khaled Taleb questioned the fact that a female had been killed and asked what she was doing there. They all then wondered which one of the Razzaks had been shot. Later that morning, between 6.30 am and 8.30 am, Khaled Taleb, the Appellant Aouad and Mohammed Touma left the Appellant El-Zeyat's house. Khaled Taleb dropped Mohammed Touma off at his house and he and the Appellant Aouad went to Liverpool (T1214-1215, 1223, 1456, 1458, 1475). 99The Appellant El-Zeyat did not give evidence at trial nor did he call evidence in the defence case. His defence was marked by extensive cross-examination of the only witness in the case against him, Khaled Taleb. The cross-examination sought to establish that at the point where Khaled Taleb had given his account to the police, he well knew that the Appellant El-Zeyat had been charged with the offences. That, it was suggested, had given Khaled Taleb an incentive to come up with an account that included the Appellant El-Zeyat as one of the shooters. 100Khaled Taleb rejected the suggestion that he had never visited the Appellant El-Zeyat's home, stating that he had been there the once on the evening of 13 October 2003. His character, his various illegal activities, his dealings with the police, motives to lie and the benefits he gained as a result of his co-operation, were all thoroughly explored in cross-examination.

[12]

The Crown Case Against the Appellant Aouad 101It was the Crown case that the Appellant Aouad was one of the gunmen in the Lawford Street shooting on 14 October 2003. 102The Crown case against the Appellant Aouad wholly relied upon evidence from Khaled Taleb. Again, it is unnecessary to repeat those parts of Khaled Taleb's evidence implicating the Appellant Aouad to which reference has already been made in relation to the Appellants Darwiche and El-Zeyat. 103Khaled Taleb stated in evidence that upon the Appellant Darwiche's return from overseas, the Appellant Aouad was present when he (Khaled Taleb) reported to the Appellant Darwiche that he was "pretty sure" his shooters on 30 July 2003 had been "Gee and Ziggy" , being Gehad and Ziad Razzak. The Appellant Darwiche replied "... if it was them they are fuckin' dead, they are going to cop it" (T1163-1164), and later "This is fucking shit. I'm either going to die or spend the rest of my life in gaol. This is it, it is all out" (T1164.43ff). As mentioned at [53]-[56], Khaled Taleb detailed other conversations during which the Appellant Darwiche, in the presence of the Appellant Aouad, reported that the Razzaks were Khaled Taleb's shooters, and had indicated his intention to retaliate. This included the conversation in which Khaled Taleb suggested to the Appellant Darwiche that they should target Gehad Razzak first. 104On 28 August 2003, the day after the Yanderra Street shooting, the Appellant Darwiche, Abdul Darwiche, the Appellant Aouad and Mohammed Touma visited Khaled Taleb at his sister's (Zena Taleb's) place in Darling Avenue, Casula. The Appellant Darwiche told Khaled Taleb, in the Appellant Aouad's presence, of the Yanderra Street shooting, and detailed how the Appellant Aouad had driven the car and fired at the premises, and how Ziad Razzak had run out on to the balcony holding a gun. The Appellant Darwiche said that Farouk Razzak also came out, and how he and Abdul Darwiche had fired at them. 105Khaled Taleb described how on Friday, 29 August 2003 (the day of Ali Abdul Razzak's murder), he went from his sister's house at Casula to his uncle's house in Lurnea to cut up the gun. He said that event occurred in the afternoon at 2.00 pm, or maybe as late as 3.00 pm, when he left Casula to go over to the uncle's house. When Khaled Taleb was at his uncle's home, the Appellant Aouad arrived and he, along with Khaled Taleb's brother-in-law, Bassam (also known as "Barry" ) Taleb, took the gun. 106Khaled Taleb also gave evidence of a telephone conversation he had with the Appellant Aouad following the drive-by shootings at the Aouad house in Lurnea and Zena Taleb's house on 30 August 2003. He stated that the Appellant Aouad had said "Yeah, they're motherfuckers. They shot at my house. They just drove by my house. They also almost hit my parents the motherfuckers" (T1192.15). 107Khaled Taleb believed it was the following day that he met with the Appellant Aouad, who stated (T1192.50ff): "Yeah, the mother fuckers, they drove by my house. I'm pretty sure it was Hussein Fahda and Gehad and Ziggy and Mohammed Razzak. I'm pretty sure it was them, the mother fuckers, they almost hit my parents. They're fucking dead; they're near fucking dead, like copping it." 108Call-charge records for 30 August 2003 demonstrated that Khaled Taleb had telephone contact with both the Appellant Aouad and the Appellant Darwiche. It was the Crown case that the call-charge records supported Khaled Taleb's account and demonstrated a snapshot of the close association which existed between him, the Appellant Aouad and the Appellant Darwiche. 109Khaled Taleb stated in evidence that on the day of the Reilly Street shooting, the Appellant Darwiche, in the Appellant Aouad's presence, gave him a detailed account of what had happened when they engaged in gunfire with the Razzaks. Two or three days later, Khaled Taleb saw the Appellant Aouad and the Appellant Darwiche, and inspected the bullet hole in the windscreen of the silver 4WD. 110Khaled Taleb gave evidence that the Appellant Aouad was present when the Appellant Darwiche had threatened and demanded money from him during their meeting in a park on 17 October 2003 (see [89] above), several days after the Lawford Street shooting. He stated that the Appellant Aouad also threatened him on this occasion. 111The Appellant Aouad did not give evidence nor was any witness called in the defence case. His defence was marked by extensive cross-examination of the only witness in the case against him, Khaled Taleb. The cross-examination related to contradictions between his testimony and his statement. His character, his various illegal activities, his dealings with the police, motives to lie and the benefits he gained as a result of his co-operation were all thoroughly explored during the cross-examination.

[13]

Crown Case Against the Appellant Osman 112The Appellant Osman was jointly indicted and convicted of the murders of Ziad Razzak and Mervat Nemra. 113It was not asserted that the Appellant Osman was one of the gunmen in the Lawford Street shooting. As the recital of the Crown case against each of the other Appellants indicates, his role in the joint criminal enterprise was to drive the gunmen to and from the scene. The Crown case against the Appellant Osman consisted of evidence from Khaled Taleb and Wahib and Haissam Hannouf. 114It was the Crown case that, following the death of Ali Abdul Razzak (Count 5), Ziad and Gehad Razzak had gone into hiding. It became known that Ali Hamka had agreed that they could stay at his house in Lawford Street, which they did. 115The Appellant Osman's recruitment as driver, some five to six hours before the killings, was a late change in the plans (see [76]-[83] above). It had become apparent that Khaled Taleb's knee injury (from having been shot) meant that he would not be able to fulfil that role. 116I have already set out Wahib Hannouf's evidence of a conversation on 13 October 2003 in which the Appellant Darwiche was heard instructing the Appellant Osman to be the driver (see [76]-[77] above). Much of the evidence concerning the Appellant Osman's subsequent involvement in the Lawford Street shooting is also set out in the summary of the Crown case against the Appellant Darwiche. That evidence clearly formed the basis of the case against him. 117In addition, Wahib Hannouf also gave evidence that on the day of the shooting (14 October 2003), he saw on the news that two people had been killed in a drive-by shooting and that over 100 rounds had been fired into the house. Later that afternoon, the Appellant Osman came to his unit and, in the course of a conversation, said to him "I hope God will forgive us for killing that woman" . Wahib Hannouf asked him what they had done and the Appellant Osman told him not to worry as they had machine guns. The Appellant Osman then said that if Gehad Razzak had been at the house, they would have used a rocket launcher (T1030.23-1031ff). 118The Appellant Osman did not give evidence at his trial nor was any witness called in his case. His defence was marked by extensive cross-examination of Khaled Taleb, Wahib Hannouf and Haissam Hannouf.

[14]

Ballistics Evidence Connecting Crime Scenes 119Amongst other evidence adduced in the Crown case, particular reliance was placed by the Crown upon ballistics evidence which linked several crime scenes, indicating that the same weapons had been used during different shootings. 120Raphael Jackson, a forensic ballistics expert, gave evidence that none of the weapons fired at the crime scenes were ever recovered. 121However, ballistics evidence served to link a number of the crime scenes. 122A number of nine millimetre fired cartridge cases were located at the scenes of shootings at Watson Road, Padstow (28 February 2001), Sir Joseph Banks Street (17 June 2001) and the Lawford Street shooting (14 October 2003). Six fired cartridge cases from the Sir Joseph Banks Street crime scene were fired from the same Glock-type pistol as 15 fired cartridge cases from the Watson Road crime scene, as well as three fired cartridge cases from the Reilly Street crime scene (8 October 2003). Ten fired cartridge cases from the Sir Joseph Banks Street crime scene were fired from the same Glock-type pistol that fired 25 fired cartridge cases from the Watson Street crime scene, as well as 26 fired cartridge cases from the Lawford Street shooting crime scene. 123A number of 7.62 x 39 millimetre fired cartridge cases and nine millimetre fired cartridge cases could be linked with respect to each of the Sir Joseph Banks Street, the Yanderra Street, the Reilly Street and the Lawford Street shooting crime scenes. 124The gun that fired 28 7.62 x 39 millimetre cartridge cases during the Yanderra Street shooting also fired 28 7.62 x 39 millimetre cartridge cases at the Lawford Street shooting. The gun that fired 27 7.62 x 39 millimetre cartridge cases at Yanderra Street also fired 21 7.62 x 39 millimetre cartridge cases at Lawford Street.

[15]

Indemnities and Benefits Provided to Principal Crown Witnesses 125The evidence at trial revealed certain indemnities and benefits were provided to Wahib Hannouf, Haissam Hannouf and Khaled Taleb. Having regard to some of the grounds of appeal, it is appropriate to summarise the evidence in this respect. As is apparent, evidence of all these matters was before the jury.

[16]

Khaled Taleb 126Khaled Taleb was granted an indemnity dated 21 March 2006, by the Attorney General, in relation to 19 offences about which he provided information to police in his induced statement (T1242, 1254). A copy of the indemnity was tendered (Exhibit GGG). In cross-examination, Khaled Taleb stated that prior to 21 March 2006, a version of the indemnity had been forwarded to him in Lebanon. However, he had observed that the first version had a number of offences missing. He was told that it would be amended on his return to Australia (T1254). 127The process of obtaining an indemnity commenced once Detective Inspector Oxford returned to Australia and provided supporting documents. Although he was not involved in the preparation of the indemnity, Detective Inspector Oxford was aware that there was a draft which required some minor amendments prior to the final version being prepared. He stated that the indemnity covered all the matters that Khaled Taleb mentioned in his statement (T1729). 128Khaled Taleb returned to Australia prior to 21 March 2006, and after his return, his indemnity was amended (T1255). 129Pursuant to s.32 Criminal Procedure Act 1986 , Khaled Taleb was indemnified from prosecution for offences in respect of his acts or omissions in relation to the following events: (a) the wounding of Sami Mete and Naida Gogor on or about 13 February 2000 at Chester Hill; (b) the wounding and detention of Navneet Muldaliar on or about 1 April 2001 at Green Valley; (c) the wounding of Ahmed Al Fadly on or about 7 May 2001 at Liverpool; (d) the wounding of Jonathan Malachi White on or about 29 May 2000 at Bankstown; (e) the wounding of Hasham Yassine on or about 18 October 2000 at Punchbowl; (f) the assault of Bilal Razzak on or about February 2001 at Bankstown; (g) the discharge of firearms on or about 26 February 2001 at or near 46-52 Sir Joseph Banks Street, Bankstown; (h) the discharge of firearms on or about 28 February 2001 at or near Watson Road, Padstow; (i) the wounding of a male person at Tempe Park, Marrickville and detention of that person in the period 2001 to 2002; (j) the discharge of firearms on or about 22 September 2001 at Bouvardia Street, Punchbowl and on another occasion in 2001; (k) the discharge of firearms at or near Jellicoe Street, Bankstown on or about 4 April 2003; (l) the murder of Ali Abdul Razzak on or about 29 August 2003; (m) the murder of Ziad Razzak and Melissa Nemra at 5 Lawford Street, Greenacre on or about 14 October 2003; (n) the agreement to murder Ziad and Gehad Razzak; (o) the supply of prohibited drugs between June 1996 and 19 October 2003; (p) the discharge of firearms on or about 14 January 1998 at 21 Victoria Road, Punchbowl; (q) the discharging of firearms at a car belonging to Kevin Safwan; (r) the wounding of Bilal Razzak on 17 June 2001; (s) the discharge of firearms on 27 August 2003 in the vicinity of 106 Yanderra Street, Condell Park; (t) the discharge of firearms on 30 August 2003 in the vicinities of 37 Boundary Road Lurnea, and 12 Darling Avenue Lurnea; (u) the possession of firearms between June 1996 and 19 October 2003. 130In relation to Item (u) above, Khaled Taleb had been charged with, and appeared in court, for the possession of a .38 calibre Smith & Wesson and for deemed supply of cannabis ($1,000.00 worth found in the glove box of his vehicle along with the firearm) (T1303). 131Khaled Taleb agreed that he was not indemnified for the offences of perjury and conspiring to pervert the course of justice, and that he had committed those offences in 1998 or 1999 when he paid someone to go to court for him and say that the gun and cannabis had been left in the vehicle by that person. As a result of that evidence, Khaled Taleb was discharged with respect to those firearm and drug offences (T1312-1320). 132In relation to Item (j) above: (a) Senior Constable Bill Anastasiou gave evidence that following a shooting on 22 September 2001, a large number of fired cartridge cases were recovered immediately outside and within the front yard of 4 and 6 Bouvardia Street, Punchbowl. Three fired cartridge cases were also recovered at the intersection of Punchbowl Road and Bouvardia Street (T1734). (b) Senior Constable Anastasiou gave evidence that an examination of the crime scene indicated that the firing of guns was away from the premises at 4 and 6 Bouvardia Street, Punchbowl, and not at those premises. This conclusion was reached as there was no projectile damage to those houses (T1735). (c) The three fired cartridge cases recovered from the intersection of Bouvardia Street and Punchbowl Road were 7.62 x 39 millimetre fired cartridge cases. The direction from which the firearm was fired could not be determined (T1735). (d) Senior Constable Anastasiou examined a Holden Commodore outside 10 Bouvardia Street. On the front passenger seat, he found a firearm with six fired cases inside, as well as a number of other firearms within that vehicle. A number of other firearms were also located in the area around 4 and 6 Bouvardia Street (T1735-1736). 133At the time of making his statement, Khaled Taleb was not aware that he could not be indemnified for the charge of murder (T1525). 134Khaled Taleb also entered into a Deed of Agreement with the New South Wales Crime Commission in relation to ongoing witness security and accommodation (Exhibit HHH). The Deed was executed on 8 July 2006 and made provision for the sum of $240.00 to be paid weekly to each of the persons (other than Khaled Taleb) named in the Deed, and for the sum of $721.00 to be paid weekly to Khaled Taleb for a period of four years (see Clause [(9)(g)], Exhibit HHH). However, one of the conditions of the Deed was that if Khaled Taleb sought employment or unemployment benefits from Centrelink, payments from the New South Wales Crime Commission would cease (see Clause [7], Exhibit HHH, T1276). 135The Deed also made provision for the payment of economy airfares from Lebanon to Australia for Khaled Taleb's relatives in the event their application for immigration to Australia was successful (see Clause [(9)(i)], Exhibit HHH), and for a motor boat to be made available to Khaled Taleb and his family, although Khaled Taleb would be responsible for the costs of maintenance and fuel (see [(9)(k)], Exhibit HHH). Khaled Taleb stated in cross-examination that the boat had not yet been made available to him and he did not know what type of boat - whether it be a dinghy or something larger - would be made available to him. The boat had been put into the Deed because Khaled Taleb had told police that there was nothing to do where he was living and he enjoyed fishing (T1278-1279). 136In cross-examination, Khaled Taleb stated that the New South Wales Crime Commission paid the rent for the two houses in which Khaled Taleb and his family lived. Prior to returning to Australia, the New South Wales Crime Commission paid Khaled Taleb a total of about $12,000.00 for hotel accommodation and some spending money. Those payments started after police officers (Detectives Russell Oxford and Neil Tuckerman) had taken his statement and had returned to Australia. Prior to that, Khaled Taleb had been living off the proceeds of the sale of a house and from money that his mother was sending him. Khaled Taleb started receiving Centrelink payments about two weeks prior to giving evidence, and police had ceased paying him money about three weeks earlier (T1274-1276, 1300). 137Although paragraph [E] in the Deed made provision for protection under the Witness Protection Scheme, Khaled Taleb and his family had declined it. However, they were still required to live in locations organised by police, and they were under 24-hour police protection (T1292-1293).

[17]

Wahib Hannouf 138Wahib Hannouf received an indemnity from prosecution by the Attorney General (Exhibit BBB). The indemnity was dated 4 November 2004, and indemnified him in relation to the following offences: (a) armed robbery of Fadi El-Jamal on 7 November 2003; (b) kidnapping of Houssam El-Jamal and any associated offence involving violence to Houssam El-Jamal on 8 November 2003; (c) aggravated breaking, entering and stealing in company at Ojay Smash Repairs on 8 November 2003; (d) demanding property with menaces from Samear El-Jamal on or about 10 November 2003; (e) knowingly taking part in the manufacture of a prohibited drug between 27 December 2003 and 16 January 2004; (f) possessing a precursor with intent to manufacture a prohibited drug between 27 December 2003 and 16 January 2004; and (g) possessing prescribed restricted substances on 16 January 2004. 139Wahib Hannouf had been charged with the above seven offences but because of his indemnity, prosecution of those offences was discontinued provided he complied with the terms of the indemnity (T1032). 140In cross-examination, Wahib Hannouf stated that he had been in custody in relation to the offences outlined in the indemnity for about one-and-a-half to two months before he first spoke to police about his knowledge of the Lawford Street shooting. At the time, some of his brothers were also in custody for the same offences as him (T1034). 141In relation to Item (a) on the indemnity (armed robbery of Fadi El-Jamal on 7 November 2003), Wahib Hannouf agreed that it was alleged that he had committed that offence with his brother, Haissam Hannouf. The allegation was that he and his brother had robbed Fadi El-Jamal of two vehicles (T1034). 142In relation to Item (b) on the indemnity (kidnapping of Houssam El-Jamal on 8 November 2003), the allegation was that Wahib and Haissam Hannouf kidnapped Houssam El-Jamal, and it was alleged that Wahib Hannouf put a gun in Houssam El-Jamal's mouth. Wahib Hannouf denied the truth of the allegation (T1035). 143In relation to Item (c) on the indemnity (aggravated breaking, entering and stealing in company at Ojay Smash Repairs on 8 November 2003), Wahib Hannouf agreed that this allegation, as well as those at Items (a) and (b) were part of the same course of conduct (T1035). 144Item (d) on the indemnity related to a charge of demanding property with menaces from Samear El-Jamal on or about 10 November 2003, Samear El-Jamal was the mother of Fadi and Houssam El-Jamal. In relation to this offence, Wahib Hannouf agreed that he had had telephone conversations with Mrs El-Jamal between 7 and 10 November 2003 (T1036). 145When Wahib Hannouf was arrested, police opposed the grant of bail. He was in custody for 10 months before he was released in November 2004. By that stage, he had given induced statements and had spoken to officers at the New South Wales Crime Commission (T1036-1037). His first statement was dated 27 February 2004, but was signed 4 March 2004. Wahib Hannouf stated that for his safety, he was only given a copy of his statements one week before he attended court to give evidence so that no one else could see the evidence that he would give (T1059). 146Wahib Hannouf made a further statement dated 21 November 2004, after he was granted an indemnity from prosecution. Once his indemnity was granted, he told police everything they wanted to know. Previously, he said that he had deliberately withheld information because he felt pressured and because he did not want the headache of what he was going through as a result of the information he gave police. He denied discussing the content of his statements with his brothers (T1060-1062). 147In cross-examination, Wahib Hannouf agreed that the New South Wales Crime Commission had frozen assets to the value of approximately $2 million belonging to him and other members of his family. He himself owned a house for which he paid $430,000.00 and which he had to sell in order to pay off the mortgage. He also had a quarter share in a service station and a Honda CRV motor vehicle valued at $15,000.00 which was seized (T1037, 1071-1072). Prior to the indemnity being granted on 4 November 2004, Wahib Hannouf and his brothers were promised by the New South Wales Crime Commission that for their safety, they would receive new visas and their money would be returned to them so that they could move on (T1064). 148In re-examination, Wahib Hannouf stated that once his house was sold and he had paid the mortgage, a total of $140,000.00 was left over. This amount was seized by the New South Wales Crime Commission. In relation to his share of the service station, once that was sold and the mortgage was repaid, they received about $145,000.00 to $150,000.00. His share of the profit was $40,000.00. That amount was also seized by the New South Wales Crime Commission. He received $15,000.00 from the sale of his Honda CRV motor vehicle and that amount was also with the New South Wales Crime Commission (T1082-1083). 149Wahib Hannouf's evidence was that he had purchased his house with money that had been given to him from family overseas, namely US$100,000.00 (approximately AU$145,000.00). He bought his share of the service station with money he had saved whilst working, and he had bought the Honda CRV motor vehicle with money he had left over when he came back from overseas after getting married (T1083). 150Wahib Hannouf admitted that he had not been wearing the surveillance device as required by his indemnity (see Clause [g], Exhibit BBB) for the two weeks prior to him giving evidence, because it had given him a rash. He had not informed the Attorney General's Department that he was no longer wearing it, nor had he informed the police officers with whom he had been in contact (T1037-1038). 151Wahib Hannouf had given evidence in relation to three cases. At the time of this trial, he had not yet given evidence in the case against Fadi El-Jamal. He agreed that Fadi El-Jamal had been a friend (T1039). 152Wahib Hannouf denied that he and his brothers had "put their heads together" so that their stories would "match" . He stated that when he was at the Sydney Police Centre with his brothers, all they discussed was whether they would give evidence or not. They were concerned about their safety and what would happen to them if they decided to give evidence about what they knew. He denied that following their arrest, he and his brothers had had the opportunity to discuss what they would tell police (T1077). 153Wahib Hannouf agreed that he had gained certain benefits as a result of the agreement he had reached with the authorities. He was not in custody, prosecution in relation to criminal activities identified in his indemnity was discontinued and he expected that his (and his family's) assets would be returned. He agreed that should he be convicted for any of those offences, he would have to spend a considerable amount of time in gaol. However, the reason Wahib Hannouf spoke to police was because Fadi El-Jamal had given a statement that contained allegations that were not true, and because police had told him that Fadi El-Jamal had told them everything. Wahib Hannouf had always intended to fight the charges against him because he asserted some of them were false (T1039-1041, 1077). 154The reason Wahib Hannouf failed to tell police what he knew about the Lawford Street shooting prior to making his statement in February 2004 was because he was afraid for his safety and that of his family. He was afraid "because if I said anything I knew these guys were going to come back and get me" (T1082.10ff). 155Wahib Hannouf stated in cross-examination that he had not lied in his statements, although he had omitted some information in the earlier statements for his own safety. He denied that he was prepared to lie for his safety, the safety of his family and for the protection of his family's property (T1075).

[18]

Haissam Hannouf 156Haissam Hannouf received an indemnity from prosecution by the Attorney General (Exhibit DDD). The indemnity was dated 4 November 2004, and indemnified him in relation to the following offences: (a) armed robbery of Fadi El-Jamal on 7 November 2003; (b) kidnapping of Houssam El-Jamal and any associated offence involving violence to Houssam El-Jamal on 8 November 2003; (c) aggravated breaking, entering and stealing in company at Ojay Smash Repairs on 8 November 2003; (d) demanding property with menaces from Samear El-Jamal on or about 10 November 2003; (e) knowingly taking part in the manufacture of a prohibited drug between 27 December 2003 and 16 January 2004; 157Haissam Hannouf had been charged with the above five offences but because of his indemnity, prosecution of those offences was discontinued provided he complied with the terms of the indemnity (T1103). His statement dated 27 February 2004 was made prior to the grant of the indemnity, but following an inducement by police that the information given by him would not be used against him (T1106). When he made his statement, he had not previously read Wahib Hannouf's statement (T1112). 158In cross-examination, Haissam Hannouf stated that he was not wearing the surveillance device he was required to wear in accordance with the terms of the indemnity, and had removed it seven or eight months earlier. He agreed that as a result, he was in breach of his indemnity (see Clause [h], Exhibit DDD) (T1103-1104). 159Haissam Hannouf agreed that he had "cut a deal" , along with his brothers, which involved an undertaking by the authorities to return property once they had finished giving evidence (T1105).

[19]

The Abuse of Process Ground (Darwiche Ground 1 Only)

[20]

Submissions 160Mr Lange contends that the trial Judge erred in not staying the prosecution of his client as an abuse of process, in circumstances where the prosecution was based upon the evidence of witnesses who had received benefits to such an extent that reliance upon their evidence would bring the justice system into disrepute. 161A summary of the evidence concerning indemnities and benefits provided to the Crown witnesses, Khaled Taleb, Wahib Hannouf and Haissam Hannouf appears at [125] to [159] above. 162Mr Lange submitted that, to rely upon evidence procured by the granting of such substantial benefits, as occurred in this case, constituted an abuse of the process of the Supreme Court by the executive so that the proceedings should have been stayed. 163Although acknowledging that no application for a stay was made to the trial Judge, Mr Lange submitted that Rule 4 Criminal Appeal Rules had no application as that provision concerned only directions or rulings on evidence at trial (T80-81, 30 June 2010). 164Reference was made to a number of authorities concerning the power of a court to stay criminal proceedings as an abuse of process, with particular reliance being placed upon the decision of Mullins J in R v Moti [2009] QSC 407; 235 FLR 320. There, criminal proceedings were stayed as an abuse of process upon the basis that financial support given to prosecution witnesses brought the administration of justice into disrepute and that, after balancing relevant policy considerations, the appropriate remedy was to stay the indictment. In submissions provided after the hearing, Mr Lange noted that the decision of Mullins J had been overturned on 16 July 2010 by the Queensland Court of Appeal: R v Moti [2010] QCA 178; 240 FLR 218. He submitted, however, that the relevant principles emerging from the cases support his argument. 165Despite the fact that the trial Judge had not been asked to make an order now sought, Mr Lange submitted that the granting of indemnities and conferral of benefits to such an extent in this case was a fundamental matter which ought to have led to a stay of the indictment. 166The Crown submitted that the Court would reject the proposition that the trial Judge ought to have stayed the Appellant Darwiche's trial of her own motion. No authority relied upon by the Appellant Darwiche supported this proposition. Further, the Crown referred to authorities which emphasised that the institution and continuation of criminal proceedings is a wholly executive function, subject to the control of the Courts where abuse of process was demonstrated. 167The Crown submitted that there is an evidential burden on an applicant seeking the exercise of the power of a superior court to order a stay because, in the normal course, an indictment will proceed to trial. Further, the reliability of the evidence of a witness is a matter for assessment by the jury and is not a basis for exclusion of evidence by the trial Judge: Rozenes v Beljajev [1995] 1 VR 533. The Crown submitted that the critical question, but not one posed by the Appellant Darwiche, is whether his convictions are safe, having regard to the nature of the evidence given by the indemnified witnesses, the circumstances in which it was given and the terms in which the trial Judge summed up the evidence to the jury. In the absence of such a ground, the Crown enquired rhetorically "How can it be said that it was an abuse of process to prosecute the Appellant?" 168The Crown observed as well that the Appellant Darwiche did not articulate what order is sought in the event that this ground is upheld, noting that an order for a permanent stay is not equivalent to a decision to direct a verdict of acquittal, and a stay does not lead to an acquittal under any circumstances. In any event, the Crown submitted that the ground of appeal ought be rejected.

[21]

Decision 169There are a number of fundamental difficulties with this ground of appeal. The Court of Criminal Appeal is a court of error. The Court determines grounds of appeal, whether relied upon as of right or by leave, in accordance with ss.5 and 6 Criminal Appeal Act 1912 . Rule 4 Criminal Appeal Rules requires the leave of the Court for a ground of appeal to be taken with respect to a direction, omission to direct, or decision as to the admission or rejection of evidence unless objection was taken at the trial to the direction, omission, or decision by the party appealing. 170The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted on the basis of one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial: R v Abusafiah (1991) 24 NSWLR 531 at 536. This ground, and a number of other grounds relied upon by the Appellant Darwiche, have the flavour of an "armchair appeal" , where counsel not involved in the trial has gone through the record of the trial in minute detail looking for error or possible arguments without reference to the manner in which the trial was conducted: R v Fuge [2001] NSWCCA 208; 123 A Crim R 310 at 319-330 [40]-[45]; Ilioski v R [2006] NSWCCA 164 at [155]. The Appellant Darwiche's first ground is a clear example of such an approach. 171It may be that the present ground does not fall within the technical limits of Rule 4. However, it suffers from a more fundamental deficiency. How can it be said that there was error in the trial court in failing to permanently stay a criminal prosecution where the trial Judge was not asked to exercise that power? There may be a most exceptional case where an offence charged is not one which is known to the law or which is incapable of being established by the proven facts so that an intermediate appellate court may decide to allow the appeal, quash the conviction and order an acquittal under ss.6(1) and (2) Criminal Appeal Act 1912 : cf Fingleton v The Queen [2005] HCA 34; 227 CLR 166. However, such a case is far removed from the circumstances posed by this ground of appeal. 172A power to stay permanently a criminal prosecution will be used only in most exceptional circumstances: Jago v District Court of NSW [1989] HCA 46; 168 CLR 23 at 31, 50, 76. A permanent stay of criminal proceedings is a wholly exceptional intervention into the processes of the criminal law, and the public interest in ensuring that persons charged with crimes are tried ought to carry significant weight in the necessary balancing process where a stay is sought: R v WRC [2003] NSWCCA 394; 59 NSWLR 273 at 282 [55]-[56]; Dupas v The Queen [2010] HCA 20; 241 CLR 237 at 251 [37]. The onus of satisfying the court that there is an abuse of process lies upon the party alleging it and the onus is a heavy one: Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529. The question of whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations, including the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice: Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 395-396. 173It is noteworthy that the Appellant Darwiche did not seek the exclusion of the evidence of Khaled Taleb, Wahib Hannouf and Haissam Hannouf upon the basis that it was unreliable and ought not be admitted. Of course, the difficulties confronting such an application (had it been made) have been recognised: Rozenes v Beljajev ; R (Cth) v Petroulias (No. 9) [2007] NSWSC 84 at [14]. 174Likewise, it is noteworthy that there is no ground of appeal contending that the verdicts of guilty are unreasonable or cannot be supported by the evidence: s.6(1) Criminal Appeal Act 1912. 175To the extent that the Appellant relies upon the decision at first instance in R v Moti , the argument is undermined by the decision of the Queensland Court of Appeal overturning the grant of a permanent stay. Of course, in R v Moti , an application for a stay was made to the trial Judge and was granted. The decision provides no assistance to the Appellant in circumstances where he makes an application for a stay, for the first time, on appeal to this Court following conviction. In overturning the decision of the trial Judge, the Queensland Court of Appeal (Holmes, Muir and Fraser JJA) acknowledged the exceptional nature of the remedy and determined that the circumstances of that case, involving the giving of financial support to witnesses, did not warrant the grant of the exceptional remedy sought. Further, the charges and factual circumstances are entirely different from those in the present case. 176From time to time, the executive, in the form of the Attorney General, may be called upon to consider the power to grant indemnities under s.32 Criminal Procedure Act 1986 , at the request of the Director of Public Prosecutions under s.19 Director of Public Prosecutions Act 1986 . 177It has become part of the contemporary landscape of trials for very serious crimes that persons may give prosecution evidence whilst holding an indemnity and being the recipients of assistance and witness protection. In Rozenes v Beljajev , Brooking, McDonald and Hansen JJ observed at 544 that "if it were not for the evidence of accomplices, a great deal of very serious crime would go unpunished, and the frequent use of evidence of accomplices has been found to be necessary in the public interest" . 178In his closing address to the jury, the Crown Prosecutor echoed such reasoning (T1942): "The reality is [that] to crack crimes of this type and in this case, the evidence must come from a man on the inside. That is Khaled Taleb, the Crown submits to you." 179In Doney v The Queen [1990] HCA 51; 171 CLR 207 at 215, the High Court observed that the inherent power of a court to prevent abuse of process does not provide any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. Questions of fact and the credibility of witnesses are for the jury to decide: Rozenes v Beljajev at 554 (applying Doney v The Queen ). 180In the present case, the defence were provided, appropriately, with information concerning indemnities and benefits provided to Crown witnesses. As the evidentiary references above make clear, these matters were made known to the jury and the witnesses were tested in cross-examination by reference to these matters, with submissions being made to the jury by the Crown and defence counsel concerning the credibility and reliability of the witnesses. The trial Judge gave the jury appropriate directions concerning this issue. All of this is consistent with the approach recognised in the cases where issues of credibility and reliability, including the relevance of the granting of indemnities and the making of any payments to witnesses, are issues for consideration by the jury in a criminal trial. 181The short answer to this ground of appeal is that her Honour did not err in failing to make an order which was not sought by the Appellant. Although this Court has been said to have a power and duty to intervene in the case of a miscarriage of justice ( R v Birks (1990) 19 NSWLR 677 at 685), no miscarriage of justice has been demonstrated in the manner alleged in the Appellant Darwiche's first ground of appeal. 182This ground of appeal ought be rejected.

[22]

Grounds of Appeal Complaining of Prejudice Flowing from the Joint Trial of the Appellants (Darwiche Ground 2; El-Zeyat Ground 2; Aouad Ground 2; Osman Ground 4) 183Each Appellant complains that the trial Judge erred in allowing a joint trial of the four Appellants upon the indictment referred to earlier in this judgment. 184On 30 May 2006, Bell J gave judgment allowing the joint trial of the Appellants to proceed upon the present indictment: R v Darwiche and Ors [2006] NSWSC 929. The Appellant Osman sought leave to appeal against that decision under s.5F Criminal Appeal Act 1912 . On 22 June 2006, the Court dismissed the appeal: Osman v R [2006] NSWCCA 196. On the hearing of the present appeals, it was accepted that it was open to this Court to consider and determine the grounds of appeal which challenged the trial Judge's order for a joint trial. It was not submitted that the decision of the Court on the s.5F application in 2006 precluded the Appellants from contending that a joint trial should not have been allowed and that a miscarriage of justice resulted from the joint trial. 185At the conclusion of the Crown case, trial counsel for the Appellants El-Zeyat, Aouad and Osman made application for discharge of the jury upon the basis of suggested prejudice resulting from the joint trial (T1869-1888). On 24 July 2006, her Honour gave reasons for refusing that application. The Appellant Aouad, in Ground 2(ii), asserts directly that the trial miscarried as a result of her Honour's refusal of the discharge application at the close of the Crown case. 186I will return to these judgments in the course of determining the present grounds of appeal.

[23]

Submissions of Appellants 187The Appellants El-Zeyat, Aouad and Osman each complain that a joint trial should not have been allowed at which Counts 6 and 7 (the Lawford Street shooting) were tried with Counts 1 to 5 (the various charges brought against the Appellant Darwiche alone). 188The Appellant Darwiche complains that a joint trial should not have been allowed in which he was to be tried for alleged offences arising from four different shooting attacks (including three counts of murder) committed over a period of two years and four months between 17 June 2001 and 14 October 2003. 189Mr Hamill SC, for the Appellant Aouad, led the submissions in support of this ground of appeal. Mr Ramage QC, for the Appellant El-Zeyat, and Ms Francis, for the Appellant Osman, adopted the submissions of Mr Hamill SC in this respect. Mr Lange made separate submissions in support of the Appellant Darwiche's ground of appeal. 190It was submitted for the Appellants El-Zeyat, Aouad and Osman that they were deprived of a fair trial and a miscarriage of justice resulted because each of them was not granted a separate trial with respect to Counts 6 and 7. Emphasis was placed upon the separation in time between the events referred to in Counts 1 to 5 and the Lawford Street shooting on 14 October 2003. 191Mr Hamill SC summarised in the following way the combination of circumstances which, he submitted, led to the Appellant Aouad not receiving a fair trial as a result of the failure to separate or sever the trials of the Appellant Darwiche in relation to Counts 1 to 5 from Counts 6 and 7: (a) the Appellants were not charged with anything concerning Counts 1 to 5; (b) the Crown did not rely, in the case against these three Appellants, on anything concerning events before the shooting of Khaled Taleb on 30 July 2003; (c) with respect to the Yanderra Street shooting (Counts 3 and 4), although the Appellant Aouad was not charged, there was evidence placed before the jury that after that shooting, in the presence of the Appellant Aouad, the Appellant Darwiche told Khaled Taleb that the Appellant Aouad was present and had fired at the house to draw out the intended victims; (d) as to the murder of Ali Abdul Razzak (Count 5): (i) a motive existed for that killing outside the suggested hatred for the Razzaks, namely that the deceased had ill-treated the sister of the Appellant Darwiche - it could have been that the killing was independent of the feud between the Darwiches and the Razzaks, (ii) although the Appellant Aouad was not charged with anything concerning that offence, evidence was led that the Appellant Aouad disposed of the gun used in the murder, (e) trial counsel for the Appellant Darwiche cross-examined into evidence that, in 2001 and 2002, Bilal Razzak, Khaled Taleb and the Appellant Darwiche were suppliers of drugs and that was a reason for the beginning of ill-feeling between them. 192Mr Hamill SC submitted that the trial having proceeded, this Court is able to determine the question of whether a miscarriage of justice resulted from the joint trial with the benefit of hindsight: R v Guldur (1986) 8 NSWLR 12 at 15-16. He submitted that the decision of this Court in the s.5F appeal in Osman v R was not determinative, noting that McClellan CJ at CL (Latham J and myself agreeing) said at [18] that the trial Judge was in a better position than the Court of Criminal Appeal to exercise the judgment in question. Now that the trial has been completed, and the use and admissibility of evidence and the stance taken by the Appellant Darwiche at trial is clear, Mr Hamill SC submitted that this Court has an overall perspective and enjoys the advantage of hindsight in determining this ground of appeal. 193Mr Hamill SC submitted that there is a point where, notwithstanding careful directions to a jury from the trial Judge concerning the use that cannot be made of evidence tendered against the co-accused in a joint trial, another accused is unfairly and irredeemably prejudiced in the admission of that evidence against another accused. He submitted that the present case reached that point, and passed it to a significant degree. 194Mr Hamill SC developed the arguments summarised at -(e) in the following way. 195By standing trial with the Appellant Darwiche, Mr Hamill SC submitted that the Appellant Aouad was tainted by the evidence that was adduced in the trial of the Appellant Darwiche, but which was inadmissible in his trial. He submitted that the evidence of the long-standing criminality of both the Appellant Darwiche and Khaled Taleb before July 2003, in itself, was enough to raise substantial prejudice to the Appellant. However, it was submitted that, in circumstances where the Appellant Aouad was, on the evidence, a friend and associate of both the Appellant Darwiche and Khaled Taleb, and acted with them after July 2003, the relevant prejudice was emphasised. Mr Hamill SC submitted that evidence of that association and friendship permitted the jury to look at the Appellant Aouad as one who befriended those who involved themselves in criminal activity and was likely to be involved in criminal activity, including the acts constituting Counts 6 and 7 on the indictment. 196Mr Hamill SC submitted that there was evidence adduced from Khaled Taleb against the Appellant Darwiche with respect to Counts 3, 4 and 5 which implicated the Appellant Aouad in those offences, despite his not being charged with them. With respect to the Yanderra Street shooting (Counts 3 and 4), evidence was placed before the jury that after that shooting, in the presence of the Appellant Aouad, the Appellant Darwiche told Khaled Taleb that the Appellant Aouad was present and had fired at the house to draw out the intended victims (T1185). With respect to the murder of Ali Abdul Razzak (Count 5), evidence was led that the Appellant Darwiche directed Khaled Taleb to dispose of the gun used in the murder. Khaled Taleb said that he obtained a grinder and chopped the gun up into small pieces and then gave it to the Appellant Aouad and Khaled Taleb's brother-in-law to throw away (T1188). 197Mr Hamill SC submitted that these two pieces of evidence were admissible in the trial of the Appellant Darwiche to explain his involvement in the offences and Khaled Taleb's explanation of that involvement. However, those parts of the evidence were not necessary, and were unfairly prejudicial, to the Appellant Aouad irrespective of the basis for its admission at his trial. 198Mr Hamill SC submitted that no direction could cure the effect of this evidence before the jury, even though the trial Judge did direct the jury about the limited use of the evidence in the Appellant Aouad's case (T1250). He submitted that the evidence should not have been admitted against the Appellant Aouad at all, as he was not charged with these offences, but the jury still heard that he was criminally involved in them. 199Mr Hamill SC submitted that the unfair prejudice to the Appellant Aouad was heightened by the decision of trial counsel for the Appellant Darwiche to cross-examine into evidence the fact that the Appellant Darwiche was involved in drug dealing with Khaled Taleb. This served to emphasise the unfairness to the Appellant Aouad in a joint trial. 200Mr Hamill SC submitted that, had Counts 1 to 5 been severed or had the Appellant Darwiche's trial been separated, the prosecution would not have been deprived of the opportunity to establish a motive for the Lawford Street shooting as against the Appellant Aouad because the Crown would have been able to adduce all of the evidence of Khaled Taleb about the relationship between the Razzaks, Darwiches and the Appellants from, and including, the shooting of Khaled Taleb in July 2003 (with the exception of evidence suggesting the criminal involvement of the Appellant Aouad in the counts with which he was not charged). 201Mr Hamill SC accepted that this Court operates on the assumption that the jury follows and obeys the directions given by the trial Judge. However, he submitted that there are occasions where the prejudice is such that a direction to the jury is unlikely to suffice: De Jesus v The Queen [1986] HCA 65; 61 ALJR 1 at 3. Referring to R v Guldur at 16, Mr Hamill SC submitted that it seems almost impossible to conclude in this case that the jury would not have been significantly influenced when considering the case against the Appellant Aouad by the conclusions they had reached regarding the Appellant Darwiche. He submitted that it would have been virtually impossible, as a matter of commonsense, for the jury to disregard the evidence led against the Appellant Darwiche in considering the case of the Appellant Aouad: R v Pham [2004] NSWCCA 190 at [34]. He submitted that support for this ground could be found in Makarov v R (No. 3) [2008] NSWCCA 293 at [53]-[82], where a miscarriage of justice had resulted from the joint trial of an accused person for sexual assault offences where two complainants gave extensive evidence of other (uncharged) sexual misconduct. 202Mr Hamill SC submitted that the Appellant Aouad did not receive a fair trial and that there was, for the purposes of s.6(1) Criminal Appeal Act 1912 , a miscarriage of justice and a wrong decision on a question of law. 203As noted earlier, counsel for the Appellants El-Zeyat and Osman adopted the submissions of Mr Hamill SC in support of their corresponding grounds of appeal. 204Mr Lange approached the related ground of appeal for the Appellant Darwiche in a different way, reflecting the different position in which his client stood at the joint trial. Unlike the other Appellants, it was the case that every count on the indictment charged an offence against the Appellant Darwiche. His grievance with respect to the joint trial concerned the fact that he was tried before the same jury for all these alleged crimes. 205Mr Lange did not challenge the trial Judge's conclusion that the offences charged against his client could properly be joined as a series of offences: De Jesus v The Queen at 10. However, he submitted that her Honour erred in considering the nature of the prejudice faced by the Appellant Darwiche. 206In particular he submitted that her Honour erred in considering that the jury would not, contrary to directions, use reasoning to the effect that there were so many offences that there was "so much smoke, there must be fire" and accept the evidence of Khaled Taleb on that basis: R v Darwiche and Ors [2006] NSWSC 929 at [104]. 207Mr Lange submitted that a particularly emotive feature of the case against his client was that a joint trial of all charges portrayed the Appellant Darwiche as a person who not only instigated, but was actively involved in, numerous vicious shootings amongst the Lebanese community in the Sydney region. Although not contending that the level of publicity surrounding the various shootings was such that the proceedings before Bell J should have been stayed, Mr Lange submitted that this was an additional aggravating element which heightened prejudice against his client. 208Mr Lange also submitted that, as a matter of fairness to the other accused persons in the trial, it was necessary for her Honour to direct the jury in such a way that contrasted the wealth of evidence against the Appellant Darwiche in the trial overall, with what was said to be the paucity of evidence against the other Appellants on Counts 6 and 7. Mr Lange submitted that such passages had the very real effect of highlighting the case against his client, and portraying him as someone who had a propensity to commit offences of violence. He submitted that the combined prejudice relied upon was sufficient of itself to warrant separate trials in respect of the various incidents. 209Whilst it was generally accepted that the evidence relied upon by the Crown against the Appellant Darwiche or the other three Appellants met the test of relevance, Mr Lange submitted that her Honour should have determined that there was no cross-admissibility since the probative value of the evidence was outweighed by the unfair prejudice to the Appellant Darwiche for the purposes of s.137 Evidence Act 1995 . 210In lengthy written submissions, Mr Lange pointed to aspects of the different counts and parts of the summing up to the jury in support of the argument that a joint trial of the charges against his client ought not have been allowed. In conclusion, he submitted that the trial Judge erred in failing to sever the indictment against the Appellant Darwiche so that this Court should intervene and quash the convictions.

[24]

Submissions of the Crown 211The Crown submits that none of the Appellants had demonstrated that a miscarriage of justice had resulted from the joint trial in this case. Noting that the submissions for the Appellants contend that the nature of the joint trial was such that it was impossible for the prejudice to be overcome by any directions given by the trial Judge, the Crown submits that an analysis of the respective cases will not cause this Court to be satisfied that the course of the joint trial constituted a miscarriage of justice: R v Guldur at 15. 212The Crown submits that the general rule is that a joint crime requires a joint trial and that, although that general rule can be displaced, the general rule was appropriate in the circumstances of this trial. 213It was noted that, on 30 May 2006, Bell J granted the Crown leave to substitute the seven-count indictment, the subject of these appeals, the offences being inextricably linked and forming part of a related series of offences. It was noted that Bell J had refused an application that the counts concerning the Lawford Street shooting should be separated from Counts 1 to 5. Her Honour also rejected the argument made on behalf of the Appellant Osman that the joint trial was oppressive such that the jury would not be able to focus upon the evidence properly admissible against each accused person. The Crown noted that this Court, on the s.5F appeal, did not disturb her Honour's ruling. The Crown submitted that the trial Judge's decision not to separate the trials and the decision of this Court on the s.5F appeal were correct. 214The Crown accepted that it was necessary for this Court to examine the impact of the decision to have a joint trial upon the trial as it actually unfolded for the purpose of determining whether a miscarriage of justice has been demonstrated. 215The Crown pointed to the fact that the evidence of Khaled Taleb was admitted in the case against the Appellant Aouad as evidencing his motive and his relationship with the Razzak family. It was not correct to say that the impugned evidence was led against the Appellant Darwiche alone. 216With respect to the evidence of Khaled Taleb that he handed the remains of a gun to the Appellant Aouad, the Crown submitted that the use made of this evidence was consistent with that which had been foreshadowed at the joinder application. 217The Crown submits that the Appellant Aouad's house had been the subject of a drive-by shooting on 30 August 2003. The Crown's reliance upon evidence from Khaled Taleb concerning the Appellant Aouad's involvement in subsequent events went to the Appellant Aouad's motive and his relationship with other relevant persons. The trial Judge gave the jury an appropriate warning against propensity reasoning. None of this, the Crown says, gave rise to unfairness to the Appellant Aouad. 218The Crown submits that the evidence concerning rivalry between the Appellant Darwiche, Khaled Taleb and members of the Razzak family over cannabis runs (which emerged as a result of the conduct of the Appellant Darwiche's case at trial) did not cause the Appellant Aouad to be prejudiced. There was no evidence that he was involved in the sale of cannabis. 219The Crown relied upon the reasoning of the trial Judge in the judgment of 24 July 2006 in which her Honour declined an application to discharge the jury without verdict at the close of the Crown case. By this time, the Crown submits that Bell J occupied the particularly advantageous position where her Honour had sat through the Crown case and was in an ideal position to assess the claims of prejudice said to flow from the joint trial. 220The Crown submits that the fact that the Appellants (other than the Appellant Darwiche) were not charged with anything concerning Counts 1 to 5 did not mean that those counts did not form, or were not part of, a series of offences of the same or a similar character as Counts 6 and 7 within the meaning of s.29(2)(c) Criminal Procedure Act 1986 . Section 29(2) does not require that the series of offences be jointly committed by each accused person. It was submitted that s.29(2) is concerned with both multiple offences and multiple offenders, where the offences are a part of a series. Although cross-admissibility may indicate a series of offences, it is not an essential requirement: Osman v R at [15]. 221With respect to the submission that in the case against the Appellants (other than the Appellant Darwiche), the Crown did not rely on anything concerning events before the shooting of Khaled Taleb on 30 July 2003, the Crown submitted that such considerations were not determinative of the question of whether a separate trial was required to avoid any miscarriage of justice. It was submitted that the offences and the offenders were inextricably linked and formed part of a related series of events so that to separate the trials would render a break in the factual nexus and make the case unintelligible. 222The Crown submits that the evidence of Khaled Taleb was central to the Crown case and that, as the trial Judge accepted, in order to understand his evidence concerning the offences committed in 2003, it was necessary to know the history of hostilities between the Appellant Darwiche and Bilal Razzak dating back to events in 2001 and the peace agreement that was brokered followed the shooting of Bilal Razzak. Without evidence of the peace agreement, the Crown submits that the jury would be left with no appreciation as to why Khaled Taleb's shooting created the mayhem that erupted. As Bell J appreciated, whilst the motive for the Yanderra Street shooting was the belief that Ziad and Gehad Razzak had shot Khaled Taleb, the significance of that event was that it was in breach of the peace agreement: R v Darwiche and Ors [2006] NSWSC 929 at [81]. 223The Crown submits that, in any separate trial, it would be inevitable that the background to the particular killings would be explained to the jury. Reliance was placed upon the decision of this Court on the s.5F appeal in Osman v R at [19]-[23]. 224The Crown submits that this is not a case where there is risk that evidence that is admissible against one accused person may be used by the jury to shore up a weak case against another. No case against any of the Appellants in relation to the Lawford Street shooting was significantly weaker, nor the evidence essentially different from that admissible against the others. The Crown submitted that the evidence did not involve a complicated mixture of admissible and inadmissible evidence, as between each of the Appellants, which a jury could not reasonably be expected to analyse in detail. 225It was submitted that the trial Judge's powerful and coherent directions ensured that the jury considered the guilt of the Appellants having regard only to the evidence admissible against each of them. 226It was submitted that the trial Judge had identified and isolated for the jury the evidence relevant and admissible in relation to each co-accused and directed them as to the use of that evidence. The directions to the jury were correct. The Crown submits that, in the administration of the criminal law, it must be accepted, until the contrary is demonstrated, that the jury will accede to, and faithfully apply, the trial Judge's directions: Demirok v The Queen [1977] HCA 21; 137 CLR 20 at 22. 227The Crown submitted that the jury, properly instructed as they were by the trial Judge, was capable of distinguishing between evidence that was admissible, and therefore useable against each accused, and evidence not admissible, and therefore unable to be taken into account, in respect of another: R v Leaman (1987) 28 A Crim R 104 at 108; R v Connell (No. 1) (1992) 8 WAR 518 at 530-531. 228The Crown submitted that the credibility and reliability of Khaled Taleb was pivotal in the case against each Appellant and that it was unrealistic to suggest that counsel for the Appellant Aouad, in a separate trial, would only test Khaled Taleb strictly on matters concerning the Lawford Street shooting. It was submitted that counsel would seek to test Khaled Taleb upon all of the matters on his indemnity, and thus expose his bad character, his various illegal activities, his dealings with the police, motives to lie and benefits gained as a result of his co-operation. 229The Crown submitted that it would be wholly undesirable to have different juries assessing the same facts in issue, namely Khaled Taleb's credit. 230The Crown submitted that this Court should be satisfied that the counts in the indictment were properly joined and that no miscarriage of justice has been occasioned by reason of the joint trial, so that the grounds of appeal relied upon by the Appellants in this respect ought be rejected. 231With respect to the submissions made on behalf of all Appellants that the prejudice towards each of them resulting from the joint trial would have overwhelmed the jury in the discharge of its duties, the Crown submits that the Court ought be satisfied that the trial Judge sufficiently impressed upon the jury the necessity to make its judgment on the evidence as seen and heard in Court, and in accordance with the directions of the trial Judge. 232The Crown submits that it was evident from the verdicts returned that the jury understood and followed directions from the trial Judge. The jury was not able to reach a unanimous verdict upon Count 5 (the murder of Ali Abdul Razzak) and the jury acquitted the Appellant Darwiche upon Count 1, instead convicting him on the alternative Count 2. It was submitted that these results demonstrated that the jury considered separately the evidence relating to each count, and did not impermissibly decide upon guilt overborne by the multiplicity of counts or the utilisation of impermissible propensity reasoning.

[25]

Decision 233This Court has observed that it is an almost inevitable consequence of a joint trial of several accused persons that material may be introduced that was adverse to a particular accused which would not have been before the jury unless a joint trial had been conducted: Yeo v R [2005] NSWCCA 49 at [97]. The very concept of joint trials imports the likelihood that there will be evidence admissible only against one of the co-accused: R v Guldur at 16. There is no assumption that, to be fair, a trial should normally be conducted in a way in which only the Crown and the particular accused are parties: Yeo v R at [97]. 234The question to be determined by this Court is whether the joint trial of the Appellants has given rise to a miscarriage of justice with respect to the conviction of any or all of them. 235In addition to the record of evidence at the trial, this Court has the advantage of the decisions of the trial Judge delivered prior to trial on pertinent issues, the decision of this Court on the s.5F appeal from her Honour's decision, and the decision of the trial Judge where many of these issues were revisited on a discharge application at the close of the Crown case. 236As the authorities make clear, this Court is now in a position to examine these grounds of appeal with the benefit of hindsight concerning what happened at the joint trial. However, this Court has the considerable advantage as well of the hindsight examination conducted by the trial Judge herself, at the close of the Crown case, with respect to the issues which are the subject of complaint under this group of grounds of appeal. 237It is helpful to refer to portions of these decisions to assist this Court in the discharge of its obligation to determine these grounds of appeal and the claim that a miscarriage of justice resulted from the joint trial. 238In the judgment of 30 May 2006 permitting joinder of the seven counts in the indictment ( R v Darwiche and Ors [2006] NSWSC 929), Bell J recited the procedural history of the matters and the history of events between 2001 and 2003 as alleged by the Crown. 239After reciting submissions made by the Crown and counsel for the then-accused persons, her Honour said at [80]-[91]: "80 The evidence of Khaled Taleb is central to the Crown case. The Crown submits that in order to understand his evidence concerning the offences committed in 2003, it is necessary to know the history of hostility between Adnan Darwiche and Bilal Razzak dating back to events in 2001, and the peace deal that was brokered following the shooting of Bilal Razzak. 81 On the Crown case, while it is true to say that the motive for the Yanderra Street shooting was the belief that Ziad and Gehad Razzak had shot Khaled Taleb, the significance of that event was that it was a breach of the peace agreement. 82 It is the Crown case that Adnan Darwiche had abandoned his drug dealing activities in 2002 and in the first half of 2003. To confine the Crown in terms of an understanding of the motive and the relationship between Adnan Darwiche and members of the Razzak family to events in mid 2003 when dealing with the Yanderra Street shooting and the later offences, in the Crown's submission, would be to present an incomplete account. I accept that is so. 83 I consider that on the trial of Adnan Darwiche for the offences that occurred in 2003, it is in each case open to the Crown to lead evidence of the dispute between him and Bilal Razzak in 2001, the peace agreement and its subsequent breach. 84 The ballistics evidence linking the two SKS style rifles used in the Yanderra Street shooting with the two weapons used in the Lawford Street shooting, and linking the pistol used in the Sir Joseph Banks Street shooting to the Lawford Street shooting, is admissible in the Crown case on the Lawford Street counts. 85 I consider that the joinder of the counts charging the shooting of Bilal Razzak in an indictment charging Adnan Darwiche with the Yanderra Street shooting and the Lawford Street shooting to be proper, subject to a consideration of whether any counts should be separated in order to avoid prejudice to the accused. 86 I have considered whether the murder of Ali Abdul Razzak may be in a different category. There is evidence of an additional and discrete motive for that killing. There is no ballistics or other forensic evidence to link the commission of this offence to the other offences. 87 On the Crown case, it is open to consider the motive for the murder of Ali Abdul Razzak to be a combination of ill will arising out of the deceased's poor treatment of Khadjie Darwiche and the accused's hostility to members of the Razzak family following the breach of the peace agreement. There is evidence which, if accepted, points to the accused as claiming to have a motive to kill members of the Razzak family as at 27 August 2003. 88 It will be recalled that shortly after the shooting of Ali Abdul Razzak, Taleb says that Darwiche told him he had killed the deceased, and on the occasion of this admission, that Darwiche kept saying, 'See what I done for you, see.' 89 Khaled Taleb asserts his belief that Darwiche's real motive was his hatred of Ali Abdul Razzak over his treatment of Khadjie. Be that as it may, in order to understand Taleb's evidence of the admission, it is necessary to know something of the background, including the initial dispute, the peace agreement, and its breach. 90 Khaled Taleb gives an account of meeting Adnan Darwiche and Ramzi Aouad in a park near Adnan Darwiche's unit on the night of Ziad Razzak's funeral. Adnan Darwiche challenged him, saying that Gehad Razzak had told someone that Taleb was speaking to the police. Darwiche exhibited anxiety that Taleb may be wearing a listening device. In the course of this meeting, Darwiche asked Taleb, 'What did you kill Ali for?' and 'Who done Greenacre?' Taleb admitted to the commission of both offences. He says that he did so because he understood that Darwiche was playing 'mind games' with him, and pressing him to admit to the offences lest he was carrying a concealed listening device. 91 Khaled Taleb fled from New South Wales following this incident. On his account he feared that Adnan Darwiche and Ramzi Aouad would kill him." 240Bell J continued, at [94]-[100], with respect to the joinder of all counts against the Appellant Darwiche: "94 It is to be anticipated that a substantial attack will be made on Khaled Taleb's credit. It is reasonable to anticipate that it will be put to Khaled Taleb that his detailed knowledge of the events charged against Adnan Darwiche derives from the fact that he was the shooter in each case. 95 On the trial of the Lawford Street counts, it is to be expected that Khaled Taleb will be cross-examined to prove his admission to have, 'Done Greenacre. . . me and my Asian mates.' 96 On the trial of the count charging the murder of Ali Abdul Razzak, it is to be anticipated that Khaled Taleb will be cross-examined as to his admission, 'I shot Ali, I did the shooting at Greenacre I did the lot'. 97 The assessment of Taleb's explanation for the admissions that he made to Darwiche, and of Mr X's evidence of the things Darwiche said to him at the November meeting, seem to me to require an understanding of the whole context. 98 I have concluded that the murder of Ali Abdul Razzak is connected with the other offences with which Adnan Darwiche is charged, and that it is open to the Crown to lead evidence of the motive, namely the breaking of the peace agreement brokered after the shooting of Bilal Razzak. 99 The joinder in the one indictment of a count charging Adnan Darwiche with the murder of Ali Abdul Razzak, together with the other counts, is in my opinion proper, subject to a consideration of whether its inclusion would prejudice the fair trial of the accused. 100 I have given consideration to whether, in the event that the evidence of the Yanderra Street shooting is available in support of the Lawford Street counts, and vice versa upon tendency reasoning or the exclusion of coincidence reasoning under ss 97 and 98 of the Act, but not with respect to the murder of Ali Abdul Razzak, directions at the joint trial would involve undue complexity with the attendant risk of confusion. I have concluded that I should not refuse the Crown's application for this reason." 241Her Honour expressed the following conclusions, at [102]-[105], concerning the joinder of all counts against the Appellant Darwiche: "102 Given the Crown's substantial reliance upon an acceptance of Khaled Taleb - a person who on his own account was from time to time engaged in the distribution of drugs in south western Sydney, and who himself had poor relations with the Razzak family - I am not persuaded that the accused suffers prejudice by reason that Khaled Taleb says he has confessed to three murders, as distinct from one. 103 Mr Doris [counsel for Darwiche] observed that he was not able to point to anything that might be characterised as lending support to Khaled Taleb's account in relation to any count. I did not understand him to submit that the Crown case on one count was relevantly different and stronger than on other counts such that there existed a risk that the jury would reason towards an acceptance of Taleb's evidence on the remaining counts. 104 In Mr Doris' submission, there remained what he described as the cumulative prejudice that flowed from his client being charged with so many offences. He submitted that there existed the risk that the jury would consider that with so much smoke, there must be fire, and accept the evidence of Khaled Taleb on that account. I do not consider that I should determine the application upon a view that the jury would, contrary to directions, reason in this way. 105 A pragmatic consideration that Mr Doris raised in opposition to the trial proceeding on the proposed indictment is the risk that it may be aborted as the result of some unanticipated difficulty relating to one of the counts. It seems to me that the greater the number of counts, the greater the risk of such an event. This consideration needs to be balanced against the practical considerations that favour joinder, given the need to lead much of the same evidence at each trial, and given the probability that a considerable amount of time at each trial would be occupied with a lengthy attack on the credit of Khaled Taleb canvassing the same issues. The separate trial of Adnan Darwiche for the murder of Ali Abdul Razzak and the Lawford Street counts would involve a lengthy and similar attack on the credit of Mr X. I consider the joinder of the counts against Adnan Darwiche is proper, and I have concluded that it does not occasion prejudice to his fair trial in respect of each count." 242Her Honour then turned, at [107]-[113], to the applications by the Appellant Darwiche and the Appellant Osman that their trials for the Lawford Street shooting proceed separately: "107 The Crown case in relation to the two Lawford Street counts is that the four accused were a party to a joint criminal enterprise. The starting point is that they should be tried jointly: Webb and Hay v R (1994) 181 CLR 41. The principles that are to be applied in determining whether to grant a separate trial are those enunciated by Hunt CJ at CL in Middis and which were approved in R v Baartman (unreported) NSW CCA 6 October 1994:

[26]

Ground of Appeal that Trial Judge Erred in Permitting Crown to Adduce Evidence that the Appellant Aouad Was Criminally Involved in Counts 3, 4 and 5 When He Was Not Charged With Those Offences (Aouad Ground 3)

[27]

Submissions 273As an alternative to Ground 2 (the separate trial ground), the Appellant Aouad submits that the trial Judge erred in permitting the Crown to adduce evidence that he was criminally involved in the offences charged against the Appellant Darwiche in Counts 3, 4 and 5 of the indictment. Mr Hamill SC relied upon the submissions made in support of Ground 2. 274In oral submissions, Mr Hamill SC accepted that leave was required under Rule 4, as no objection had been taken to this evidence at the trial. He submitted that it may be that, in light of the pretrial ruling, it was thought that there was not much point in objecting to the evidence that the Crown had to lead in order to prove Counts 1 to 5 against the Appellant Darwiche (T126.44, 1 July 2010). 275In response, the Crown also relied upon submissions made with respect to the Appellant Aouad's second ground of appeal. It was submitted that the trial Judge did not err in permitting the evidence to be given and that no objection had been taken to the evidence or the use to be made of it, and there was no occasion for the trial Judge to have intervened of her own motion. Accordingly, Rule 4 applied and leave should not be granted. 276Even if objection had been taken at trial, the Crown submitted that this Court would not conclude that her Honour would have refused to admit the evidence. It was submitted that the evidence placed the charges into context so that the jury could understand the acts of the Appellant Aouad against the background of the circumstances that existed at the relevant time: R v Toki (No. 3) [2000] NSWSC 999; 116 A Crim R 536 at 540-541 [23]-[30]; R v Darwiche and Ors [2006] NSWSC 929 at [36]. 277The Crown submitted that the admission of the evidence did not result in unfair prejudice and that no miscarriage of justice has been occasioned.

[28]

Decision 278In the same way as counsel relied upon submissions made concerning the Appellant Aouad's second ground of appeal in support of the present ground, I rely as well upon reasons expressed at [233] to [272] above with respect to that ground of appeal. I am satisfied that no error has been demonstrated in her Honour's decision to proceed with a joint trial of the Appellant Aouad upon the counts contained in the indictment. No objection was taken by trial counsel for the Appellant Aouad to the admissibility of the presently challenged evidence. Accordingly, leave to press the present ground is required. 279In the course of considering the second ground of appeal, I referred (at [248] above) to Bell J's directions to the jury during the evidence of Khaled Taleb concerning the permitted and prohibited use of his evidence of background events. A detailed direction concerning the Appellant Aouad was given at that time. 280Her Honour gave detailed directions to the jury in summing up the case against the Appellant Aouad (SU133-136): "The Crown has led evidence through Khaled Taleb of his association with Ramzi Aouad and of the association between Ramzi Aouad and Adnan Darwiche. The Crown has invited you to look to the call charge records or to the summary of those records that is in evidence. In the Crown's submission that material forms some material that is supportive [of] Khaled Taleb's account of the close association that existed at that time between the three of them. That material, you may think, establishes that they were persons who were in contact with one another. I need hardly point out that it does not establish any more than that fact. Khaled Taleb says that Ramzi Aouad was present on occasion when discussions took place about the plans for the Yanderra Street shooting. He says that Ramzi Aouad was there on an occasion when Adnan Darwiche said that Aouad was to drive the car and fire shots in order to draw the occupants of Yanderra Street out so they might be shot at. You will remember Khaled Taleb says that Ramzi Aouad came over to Taleb's uncle's premises in Lurnea and collected pieces of the Glock pistol that had been used in the shooting of Ali Abdul Razzak, and that he, Aouad and Taleb's brother-in-law Bassam Taleb were the two who disposed of those pieces of the gun. You have heard evidence from Khaled Taleb that Ramzi Aouad was in the silver RAV 4 four wheel drive involved in the shoot out in Reilly Street on 8 October 2003. You would appreciate that Ramzi Aouad is not charged with any criminal offence associated with the shooting at Yanderra Street. He is not charged with any criminal offence relating to the murder of Ali Abdul Razzak, and he is not charged with any criminal offence relating to the Reilly Street shoot out. If you were to find that Ramzi Aouad had been involved in earlier episodes of gun violence or in disposing of the weapon used in relation to the murder of Ali Abdul Razzak, you would not reason from that finding that he was guilty of the offences with which he is charged on the basis, Ramzi Aouad is a person who is likely to have committed these two murders because we are satisfied that he is a person who had previously been involved in gun violence. As I have pointed out, when dealing with the case of Adnan Darwiche, that is an impermissible mode of reasoning. The purpose of leading evidence touching on Ramzi Aouad's association with Adnan Darwiche and Khaled Taleb was because on the Crown case his association with those two men was the reason that led to his family home being shot up on the night of 30 August. I should say in the early hours of the morning of 30 August. You understand in broad terms it is put that he was a close associate of Adnan Darwiche and that when Ali Abdul Razzak was murdered persons associated with the Razzak family took revenge by way of the drive-by shootings of those who were associated with Adnan Darwiche, one of whom was Ramzi Aouad. In the Crown's submission to you when you look at the evidence of Khaled Taleb concerning the association between Ramzi Aouad and Adnan Darwiche and himself leading up to the shooting at the Aouad family home at Boundary Road on the morning of 30 August, you would see the motive that Ramzi Aouad had to associate himself with the Lawford Street killing. I emphasize there is no evidence upon which you could find Ramzi Aouad guilty of either of the offences, save the evidence of Khaled Taleb, and when you analyse it, the evidence that I have just been dealing with relating to prior incidents of bad conduct, if you accept it, by Ramzi Aouad also is sourced to Khaled Taleb. You would have to be thoroughly satisfied as to the reliability of Khaled Taleb's evidence before you could convict Ramzi Aouad of these offences." 281The directions of the trial Judge made clear the use that could be made (and not made) of this evidence of prior incidents of bad conduct on the part of the Appellant Aouad. It was relevant to an assessment of the relationship or association between the Appellants Aouad and Darwiche and the witness Khaled Taleb, as well as the Appellant Aouad's motive for involvement in the Lawford Street shooting. Propensity reasoning was not permitted. 282In my view, the trial Judge's directions accorded with authority: R v Toki (No. 3) at 540-541 [23]-[30], and it was both open to the Court and appropriate for this evidence to be given and used in this way. 283It is for the Appellant Aouad to demonstrate that a miscarriage of justice has resulted so that this Court should grant leave under Rule 4 to permit the ground to go forward: R v Abusafiah at 536; Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 319 [72]; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 at 352-353 [20]-[24]. 284The Appellant Aouad has not demonstrated a miscarriage of justice as a result of the Crown adducing evidence which is now the subject of challenge in this ground of appeal. No complaint is made concerning the directions given to the jury with respect to this evidence. 285In circumstances where objection was not taken to the tender of the evidence at or before trial, I would not grant leave under Rule 4 but, in any event, the ground ought be rejected.

[29]

Grounds of Appeal Challenging the Direction that Evidence of One Indemnified Witness Could be Considered as Providing Support for the Evidence of Another Indemnified Witness (Darwiche Ground 5; El-Zeyat Ground 3; Aouad Grounds 1 and 1(b); Osman Ground 3(c)) 286At the same time as hearing the present appeals, this Court heard appeals by the Appellant Aouad and the Appellant El-Zeyat against their convictions, at a separate trial before Bell J and a jury between March and May 2006, for the murder of Ahmed Fahda. The present grounds of appeal were pressed and argued in the context of those appeals. Accordingly, paragraphs [203]-[216] of the judgment in Aouad v R; El-Zeyat v R [2011] NSWCCA 61 ought be read in conjunction with the present judgment.

[30]

Submissions 287The submissions advanced by counsel for the Appellants in support of these grounds of appeal are broadly similar to those referred to in Aouad v R; El-Zeyat v R at [163]-[202]. It is not necessary to recite in detail the arguments advanced on behalf of the Appellants in support of the present grounds, which once again related to directions to the jury concerning the evidence of Khaled Taleb, Wahib Hannouf and Haissam Hannouf. Counsel for the Appellant Darwiche adopted the submissions concerning this ground as made by counsel for the Appellants El-Zeyat and Aouad. 288Amongst other things, the Crown submits that this ground does not assist the Appellants Aouad and El-Zeyat with respect to this trial. The trial Judge directed the jury that the only evidence against each of those Appellants was that of Khaled Taleb.

[31]

Decision 289The reasons for rejection of the corresponding grounds in the associated appeals have application to the determination of these grounds as well. The authorities referred to in the judgment of James J, including Kanaan v R [2006] NSWCCA 109, demonstrate that there was no error on the part of the trial Judge in the directions given to the jury with respect to the evidence of an indemnified witness being capable of providing support for the evidence of another indemnified witness. 290In my view, the same reasoning applies where the evidence of a witness who might reasonably be regarded as being criminally concerned in the crimes alleged against an accused person. 291I note, in any event, that the complaints contained in the present group of grounds were not the subject of any objection or application before the trial Judge, so that leave is required under Rule 4 to advance these grounds. Further, the grounds have no utility with respect to the Appellants Aouad and El-Zeyat, as only Khaled Taleb's evidence affected them, with no evidence from Wahib and/or Hassaim Hannouf doing so (SU123-124; SU133). 292I am not persuaded that there is any merit with respect to these grounds of appeal and I would refuse leave under Rule 4 to rely upon these grounds at the hearing of these appeals.

[32]

Ground of Appeal Concerning Admission of Evidence of Reasons Why Various Witnesses Had Not Given Evidence (Darwiche Ground 3)

[33]

Submissions 293Mr Lange submitted that the trial Judge erred in permitting evidence to be given before the jury as to the reason why various witnesses had not given evidence when, according to the submission, such evidence was either irrelevant or should have been excluded pursuant to s.137 Evidence Act 1995 . 294Complaint was made concerning the explanation provided by her Honour (without objection from trial counsel) concerning the refusal by Mohammed Razzak and Bilal Razzak (in the absence of the jury) to take an oath or make an affirmation for the purpose of giving evidence, and her Honour's decision that each man was to be dealt with for contempt of court in that respect at the end of the trial (T1865). 295In addition, Detective Wakeham gave evidence (T1776-1779) concerning efforts to obtain statements from a number of persons, including Mohammed Ayoubi, Bassam Taleb, Zena Taleb, Omran Taleb, Houssam Razzak, Ahmad Awad, Rabbi Haj (also known as "Rabbi Hagali" ), Gehad Hassan and Gehad Razzak. The evidence of the police officer concerning these persons included indications by some that they were not prepared to make a statement or to give evidence, or that they could not be located by police. 296Although acknowledging that no objection had been taken at trial to the provision of these explanations to the jury, Mr Lange submitted that the evidence containing these explanations was irrelevant for the purpose of s.55 Evidence Act 1995 and, even if it possessed some relevance, the evidence ought to have been excluded under s.137 Evidence Act 1995 . He submitted that the avoidance of an adverse inference in accordance with the principles in Jones v Dunkel [1959] HCA 8; 101 CLR 298 did not render this evidence relevant, with the question of the avoidance of such an inference being one for the trial Judge and not the jury. Mr Lange submitted that such evidence was, in any event, prejudicial in circumstances where allegations of witness tampering had been made at the trial with respect to the Crown witness, Abdul Taleb (Khaled Taleb's cousin). Mr Lange contended that the trial Judge had an obligation not to admit the evidence so that a miscarriage of justice resulted from the adducing of the evidence: Steve v R [2008] NSWCCA 231; 189 A Crim R 68 at 83 [82]-[83]. 297The Crown submitted that no objection had been taken at trial in this respect and that leave under Rule 4 should be refused. It was submitted that it was prudent for the Crown to provide an explanation as to why the jury had not heard from certain witnesses that had been referred to in the Crown case so as to answer any closing arguments made by defence counsel and to avoid a Jones v Dunkel direction. It was noted that trial counsel for the Appellant Osman had commented upon absent witnesses in her closing address (T1978, 1985, 1991-1992) and that a Jones v Dunkel direction was sought and refused (SU175-176). The Crown observed that the trial took place at a time when some uncertainty existed concerning the drawing of Jones v Dunkel inferences in criminal trials, an issue clarified by the later decisions in Mahmood v State of Western Australia [2008] HCA 1; 232 CLR 397 and Louizos v R [2009] NSWCCA 71; 194 A Crim R 223. 298The Crown submitted that the explanation for the absence of the witnesses did not reflect on the Appellant Darwiche and that it was fanciful to suggest that the evidence was unfairly prejudicial to him. To the extent that the Appellant Darwiche sought to rely upon the decision in Steve v R , the Crown noted that this Court had disagreed with the statement in that case that the trial Judge was under an obligation not to admit evidence under s.137 even where no objection was taken to the evidence at trial: FDP v R [2008] NSWCCA 317; 192 A Crim R 87 at 91-95 [16]-[30].

[34]

Decision 299The trial Judge provided an explanation to the jury concerning the refusal of Mohammed Razzak and Bilal Razzak to give evidence, with such explanation being given with the express agreement of trial counsel for the Appellant Darwiche (T1865.36). Further, no objection was taken to evidence from Detective Wakeham concerning efforts to locate and obtain statements from a number of persons who had been mentioned in evidence, but had not been called as witnesses by the Crown. 300In these circumstances, Rule 4 stands in the way of the Appellant Darwiche advancing this ground of appeal. No basis has been demonstrated for a grant of leave under Rule 4 in this case. The evidence of efforts to obtain statements and to locate certain persons was unremarkable given the state of the law at the time of the trial with respect to the drawing of Jones v Dunkel inferences. 301Nothing advanced on behalf of the Appellant Darwiche demonstrates prejudice to him from the provision of such explanations by her Honour (with respect to Mohammed Razzak and Bilal Razzak) and through the evidence of the police officer concerning other persons. The occasion for exclusion of evidence under s.137 did not arise in this case and, in the absence of objection from trial counsel, the trial Judge was under no obligation to exclude evidence under s.137 in any event: FDP v R, above. 302This ground appears remote from the real atmosphere of the trial and has the flavour of an "armchair appeal" about it (see [170] above). I would refuse leave to advance this ground of appeal under Rule 4.

[35]

Ground of Appeal Alleging Error in Refusing to Discharge the Jury (Darwiche Ground 4)

[36]

Submissions 303Mr Lange submitted that the trial Judge erred in refusing to discharge the jury in circumstances where one of the jurors had acted in a way as to demonstrate a reasonable apprehension of bias. The submission relates to events on 17 July 2006, when trial counsel for the Appellant El-Zeyat informed the trial Judge of instructions from his client and some of the other accused persons that a female juror had been observed making a vulgar gesture. Trial counsel for the Appellant El-Zeyat informed the trial Judge that it was his and his client's concern that, if the juror had formed a personal dislike for him, then he should not continue to appear on behalf of his client. Counsel for the Appellant El-Zeyat applied for a discharge of the jury, an application joined by counsel for the three co-accused. Her Honour refused the application in a judgment of 24 July 2006. 304Mr Lange complained about her Honour's findings of fact reached after evidence had been given by a number of persons on the application to discharge the jury. It was submitted that the actions of the juror demonstrated that she had become "invested in the proceedings to such an extent that she saw it appropriate to express her disinterest by means of a vulgar gesture" . Complaint was made concerning her Honour's refusal to interrogate the particular juror concerning the incident. 305In detailed written submissions, Mr Lange contends that the juror was so distracted from the important task she had been asked to perform as a juror, that the Appellant Darwiche had thereby been deprived of a fair trial. It was submitted that the trial miscarried as a result of the trial Judge's refusal to discharge the juror. 306The Crown submits that the trial Judge had made findings as part of her decision declining to discharge the jury, and that nothing had been put to this Court which ought lead to the conclusion that these findings were not reasonably open on the evidence. 307It was submitted that no error had been demonstrated in her Honour's refusal to interrogate the juror. The question whether to discharge the jury was a discretionary one for the trial Judge. The Crown pointed to the trial Judge's observations that jurors are not expected to sit expressionless throughout the trial. The Crown referred to Wing Cheong Li v R [2010] NSWCCA 40 at [152] where it was observed that the duty of jurors and their behaviour in the courtroom during a trial must take into account human frailties, and that minor lapses in attention and distractions should not be taken as resulting in a miscarriage of justice or a finding that there has not been a trial according to law. 308The Crown submitted that it had not been demonstrated that a reasonable apprehension of bias applied with respect to this juror and no error in principle or as to the facts had been demonstrated, nor had it been demonstrated that a miscarriage of justice had resulted from the refusal of the discharge application.

[37]

Decision 309In El Hassan v R [2007] NSWCCA 148, Hunt AJA (Latham J and myself agreeing) said at [15]: "The decision as to whether a jury should be discharged is a discretionary one. The trial judge is usually in a superior position to that of this Court in determining what should be done when material alleged to be prejudicial is brought to the knowledge of the jury. The trial judge is alive to the temper and the atmosphere of the trial, and this Court must make due allowance for that fact in determining - in accordance with House v The King (1936) 55 CLR 499 at 504-505 - whether there has been an error in the exercise of that discretion; see Kanaan & Ors v Regina [[2006] NSWCCA 109] at [50] , where this Court followed Regina v Ngo [2003] NSWCCA 82 at [49] (reported on other matters at (2003) 57 NSWLR 55) in adopting what had been said by Brereton J in Regina v Ball (1960) 61 SR 37 at 41-42." 310Not only was the trial Judge in this case alive to the temper and the atmosphere of the trial, but her Honour heard evidence on the discharge application which was assessed carefully in the decision of 24 July 2006. Her Honour outlined the background to the application (at [1]-[5]) and summarised the evidence on the application of the Appellant El-Zeyat (at [6]-[11]), the Appellant Darwiche (at [12]-[13]) and the Appellant Osman (at [14]). Her Honour referred (at [15]) to the evidence of Scott Paillas, a private investigator retained on the Appellant Darwiche's behalf, who testified that he observed the juror moving her arm up and down twice with a closed fist, but he did not see her mouth any words and had not observed the juror further after this observation. Mr Paillas had formed the opinion that the gesture was a derogatory one, directed to counsel for the Appellant El-Zeyat. 311The trial Judge continued at [16]-[19]: "16 The juror was sitting in the front row of the jury box in a seat four places along from the foreman's seat. She was within my field of vision. I saw no incident. None of the six counsel at the bar table saw any incident nor did their instructing solicitors. 17 The Crown Prosecutor informed me that none of the Corrective Services officers seated with the accused reported observing any incident. There were six officers in the dock at the time. 18 Mr Stanton informed me that he had spoken with the Court Officer after the proceedings were adjourned that day. From his account of the conversation it appears that she saw no incident. 19 In Mr Stanton's submission there was uncontradicted evidence that a member of the jury had made a derogatory and offensive gesture and it was not to the point to debate whether it was directed at him, his client or the witness. In his submission it was conduct that demonstrated that the juror was not capable of the impartial discharge of her duties. Since she had been with the other members of the jury on occasions after the incident there was a risk that she had contaminated other jurors with her biased opinions. In these circumstances, Mr Stanton submitted that I should discharge the jury." 312Bell J continued at [20]-[22]: "20 The juror is an animated individual who appears to be on good terms with her fellow jurors. When coming and going from the court she is often engaged in discussion with one or more of them. She is expressive. On occasions when it has been necessary for me to explain why the proceedings have been delayed she has frequently signified her understanding of the explanation given by nodding in a manner that I considered was intended to be polite. I have not observed any signs of impatience in her conduct. She appears to have been taking notes during the course of the trial. 21 Each of the accused commented critically about a number of gestures made by the juror that, to my mind, could not reasonably have been considered offensive. One explanation for this excessive sensitivity may be the strain of the present proceedings. I was inclined to be cautious in accepting the account given by each accused of the offensive quality of the gesture that is the subject of complaint. 22 Naseam El Zeyat's version of events was contradictory. Other evidence did not support his account of the circumstances in which the juror mouthed words. I did not find that the juror mouthed words at the accused. As Mr Stanton acknowledged, his client's misconduct did not warrant the discharge of the jury. He submitted that his client's intemperate conduct had not initiated the incident. In his submission the logic of the situation was supportive of a finding that it was the juror's gesture that had provoked the incident. I was not persuaded that was necessarily so. It was not clear what part of any incident Mr Paillas had observed." 313After reciting these findings of fact, Bell J turned to the defence application that the relevant juror should be separated and examined as to her account of the incident. Her Honour said at [23]-[24]: "23 Ultimately, Mr Stanton joined in the submissions made by counsel for the other accused who invited me to separate the juror and examine her as to her account of the incident. The Crown Prosecutor opposed that course. 24 I declined to examine the juror. I was mindful that any incident had not been such as to attract the attention of any of the members of the profession, the court and correctional staff. I did not find that the juror had engaged in the brazen display of an offensive gesture. I did not consider that any gesture made by the juror involving movement of her arm up and down with a closed fist was to be construed as necessarily offensive in the way that was suggested. Any gesture that she made seemed to me to have been a passing response to some matter and likely made in the course of a communication with a fellow juror. I considered that the Court should be reluctant to question a juror in these circumstances." 314The trial Judge concluded her reasons for declining to discharge the jury at [25]: "It is to be expected that jurors will sometimes demonstrate their response to evidence as it is given in any of a number of ways: sighing, rolling their eyes, showing signs of distress and the like. The incident occurred on the 18th day of a lengthy trial. The juror had been attentive throughout the trial. Upon an acceptance that she made a gesture moving her arm up and down with a closed hand, whether in the course of a communication with a fellow juror or not, I am not of the opinion that this would give rise to a reasonable apprehension on the part of a fair minded and informed member of the public that she would not discharge her duty and consider the case against each accused fairly and impartially: Webb v The Queen (1994) 181 CLR 41 per Mason CJ and McHugh J at 50." 315It was open to the trial Judge to have regard to her own observations of events inside the courtroom, as well as statements from counsel concerning their observations and the observations of others. In addition, evidence was given by the then accused persons and Mr Paillas. After reciting the evidence, her Honour made findings of fact which, in my view, disclose no error. 316No error of principle has been demonstrated and the trial Judge's discretionary determination was reached after a careful assessment of the evidence. Her Honour had regard to the practical dynamics inside a criminal trial courtroom and took a realistic and commonsense approach to the assessment of evidence and observations concerning the actions of the relevant juror. There was no basis for a finding of reasonable apprehension of bias on the part of the juror or the jury. 317In my view, no error has been demonstrated in either her Honour's refusal to separate and examine the relevant juror or the decision declining to discharge the jury, let alone that the failure to order a discharge has resulted in a mistrial. 318I would reject this ground of appeal.

[38]

Ground of Appeal Alleging Error by Trial Judge in Omitting Details of the Evidence of Abdul Taleb During the Summing Up (Darwiche Ground 6)

[39]

Submissions 319Abdul Taleb, the cousin of Khaled Taleb, was called as a witness in the Crown case. However, Abdul Taleb's evidence was almost entirely favourable to the accused. Defence counsel at trial submitted that Abdul Taleb was a witness of truth and that his evidence served to disprove the allegations advanced by Khaled Taleb. 320Although acknowledging that a trial Judge need not repeat the evidence of a witness at trial during the summing up, Mr Lange submitted that the trial Judge did not deal adequately with the evidence of Abdul Taleb during the summing up. He submitted that the trial Judge erred not only in failing to draw the jury's attention in any detail to the exculpatory nature of Abdul Taleb's evidence, but also by devoting much of the discussion of the witness to the Crown's attack on his credibility. Mr Lange submitted that Abdul Taleb's evidence was important because it gave force to the submission that it was Khaled Taleb, and not the Appellant Darwiche, who was responsible for the shootings. 321Although acknowledging that trial counsel did not seek a redirection from her Honour on this issue, Mr Lange submitted that this Court should, nevertheless, intervene contending that the failure to sum up adequately the defence case was of such a fundamental nature that Rule 4 should not stand in the way: El Jalkh v R [2009] NSWCCA 139 at [153]. 322The Crown submitted that no further direction was sought from the trial Judge in the manner now complained of so that leave is required under Rule 4 to advance this ground. According to the Crown, the absence of any complaint from defence counsel at trial concerning the balance of the summing up undermines the present argument that the summing up was deficient in the manner complained of. The Crown submitted that leave to advance this ground of appeal should be refused.

[40]

Decision 323During the course of the summing up, the trial Judge referred to the competing submissions which had been made by defence counsel and the Crown with respect to the evidence of Abdul Taleb (SU26-29). It is correct that the trial Judge did not provide any detailed account of the evidence of Abdul Taleb. However, the trial Judge was not requested to do so by trial counsel. The closing addresses of defence counsel had been made to the jury on 25 and 26 July 2006. Trial counsel for the Appellant Darwiche had addressed last on 26 July 2006. The addresses of counsel would have been fresh in the minds of the jury. 324A trial Judge is not required to restate all the evidence and arguments made ( R v Lowery and King (No. 3) [1972] VR 939 at 948), nor is the judge bound to discuss all the evidence or to analyse all the conflicts of the evidence: Domican v The Queen [1992] HCA 13; 173 CLR 555 at 560. 325Whether the trial Judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence: Domican v The Queen at 561. 326The jury in this trial could not have been under any misapprehension as to the basis upon which the Appellant Darwiche had fought his case. The jury had a clear understanding of the competing arguments of the parties with respect to the evidence of Abdul Taleb. The trial Judge announced her intention not to take the jury through the evidence of the witness and no argument was advanced to her Honour seeking any detailed recital of the evidence of Abdul Taleb. The absence of such an application by trial counsel is a useful barometer of the atmosphere of the trial, and a strong indication that trial counsel did not perceive any injustice, deficiency or lack of balance in the summing up. 327This is not a case where the trial Judge has failed to state the defence case. Rather, the present complaint is one made for the first time on appeal, away from the atmosphere of the trial, in circumstances where no basis for a grant of leave under Rule 4 has been demonstrated. 328I would refuse leave under Rule 4 to advance this ground of appeal.

[41]

Ground of Appeal Asserting Inadequate Directions to the Jury Concerning the Use to be Made of Evidence of Detective Wakeham That a Relative of the Appellant Darwiche Had Sought to Influence the Witness Abdul Taleb (Darwiche Ground 7) 329The direction impugned by this ground of appeal is as follows (SU28-29): "The evidence that Abdul Taleb told Detective Wakeham that he had been spoken to at the gaol by Mohammed Ali Darwiche and Ibby Aouad is evidence that the Crown points to in support of its submission that you would reject Abdul Taleb's evidence given here in court. That material about the contents of discussions between Abdul Taleb and Detective Wakeham is not evidence in the case against either Adnan Darwiche or Ramzi Aouad. That is, whatever view you take of that evidence, it does not enable you to reason towards the guilt of Adnan Darwiche or Ramzi Aouad or, indeed, of course, either of the other accused. It is evidence that is led relevant because it is relevant to the assessment you make of the witness Abdul Taleb."

[42]

Submissions 330Mr Lange submitted that the above direction was deficient because it failed to guard against what was said to be the very real risk that the jury would reason that the actions of a relative of the Appellant Darwiche were capable of demonstrating consciousness of guilt by him. It was submitted that the bare statement that the jury was not entitled to reason towards the guilt of the Appellant Darwiche was incapable of removing this risk. 331Mr Lange submitted that the trial Judge's direction did not warn the jury against engaging in speculation. It was said that the direction was bound to confuse the jury. 332Once again, Mr Lange conceded that trial counsel did not seek a redirection in the terms now suggested on appeal. He contended that leave ought be granted under Rule 4 as the direction now challenged concerned the sole witness who was able to undermine significantly the evidence given by the Crown's principal witness, Khaled Taleb, so that the suggested error was of a fundamental nature. 333The Crown submits that the direction under challenge was correct. Rather than inviting impermissible speculation, the Crown submits that the direction communicated to the jury in easily understood, unambiguous and non-technical language, that the evidence could not be used to reason towards guilt. 334The Crown submits that the absence of any application by defence counsel for redirection at trial reinforces a conclusion that the direction was both correct and adequate.

[43]

Decision 335I am entirely unpersuaded that any error has been demonstrated in accordance with this ground of appeal. It is not contended that the direction was wrong in law or fact. The trial Judge directed the jury that the evidence was confined to an assessment of the evidence of Abdul Taleb and could not be used to reason towards the guilt of any of the Appellants. The argument is based upon the risk of speculation by the jury which appears somewhat fanciful given the reality of how the trial proceeded. 336No further direction was sought by trial counsel, a fact which fortifies a conclusion that the challenged direction did not operate unfairly to the Appellant Darwiche. 337I would refuse leave under Rule 4 to advance this ground of appeal.

[44]

Ground of Appeal that the Trial Judge Erred in Failing to Direct the Jury Concerning the Dangers of Identification Evidence Proffered by Jamal Razzak (Darwiche Ground 8) 338This ground of appeal arises from the conviction of the Appellant Darwiche upon the second count. Bilal Razzak's father, Jamal Razzak, gave evidence that he saw Abdul Darwiche standing outside the premises at the time of the shooting holding a firearm. This was evidence which, on the Crown case, provided some support for Khaled Taleb's evidence concerning admissions made by the Appellant Darwiche.

[45]

Submissions 339Mr Lange submitted that the circumstances in which Jamal Razzak purported to identify Abdul Darwiche was such that there must have been considerable doubt concerning the accuracy of the identification. He referred to the distance between the witness and the person identified, the briefness of the view, the less-than-perfect lighting conditions and the fact that the identification was based on general features rather than any specific detail. Trial counsel for the Appellant Darwiche drew the jury's attention to these matters in his closing address. 340Mr Lange pointed to the fact that trial counsel for his client sought an identification warning concerning the evidence of Jamal Razzak identifying Abdul Darwiche, and that the trial Judge initially indicated that although relevant statutory provisions did not require a warning because Abdul Darwiche was not the accused, such a direction would be included in any event (T1962-1963). However, the next day, her Honour indicated that she did not propose to give a direction on the dangers related to identification evidence with respect to Jamal Razzak's evidence. Rather, her Honour would note the criticisms of that evidence, but would not give a formal direction as "it falls into a different category to evidence of a witness identifying an accused" (T2017.46). 341Although acknowledging that s.165(1)(b) Evidence Act 1995 only applies to identification of an accused person, Mr Lange submitted that a warning concerning visual identification of a person who is not the accused ought to have been given in accordance with the principles in R v Rose [2002] NSWCCA 455; 55 NSWLR 701 at 712 [289]. Mr Lange submitted that there having been a request for a direction, the trial Judge was obliged to warn the jury under s.165(2) unless there was good reason for not doing so: s.165(3). It was submitted that there was no good reason in this respect. Further, Mr Lange submitted that the identification evidence of Jamal Razzak was of particular significance in the trial, in that it had the capacity to support the evidence of Khaled Taleb with respect to the second count and, indeed, other counts before the jury. 342The Crown submitted that the argument advanced in support of this ground of appeal was not the basis of any submission at the trial and that leave to appeal should be refused under Rule 4. The Crown submitted that the argument now advanced recasts both the nature of the evidence given by the witness, Jamal Razzak, and the attack made upon that evidence at trial. The challenge to the evidence of Jamal Razzak at trial was not directed to the reliability and accuracy of the identification. Rather, it sought to establish that he was untruthful and that the recognition evidence was fabricated. In these circumstances, the Crown submitted that the potential danger of an honest witness being mistaken, and his evidence being unreliable, was hardly the issue at trial so as to warrant the direction. Further, the Crown noted Jamal Razzak's evidence that he knew Abdul Darwiche very well (T491). This was not a case of identification of a stranger by the witness. The nature and character of the witness' previous connection with the person observed is a crucial issue and, in this case, the Crown submitted that Jamal Razzak's previous knowledge of Abdul Darwiche was not tenuous, such as to attract many of the inherent frailties associated with identification evidence. 343With respect to Mr Lange's submission that error arose from the trial Judge's failure to give reasons under s.165(2) and (3) for declining to give a warning to the jury, the Crown submitted that this statutory obligation did not arise as s.165 had no application in the circumstances of this identification because Abdul Darwiche was not an accused person.

[46]

Decision 344Trial counsel for the Appellant Darwiche did make application to the trial Judge for a warning concerning Jamal Razzak's identification of Abdul Darwiche. The trial Judge's initial indication that such a direction would be given did not mean that her Honour was required to give the direction. It is apparent that, upon further reflection, the trial Judge determined to remind the jury of defence submissions in this respect, but not to give a warning concerning the identification. 345It is common ground that there was no obligation under s.165(1)(b) to give such a warning as the identification was not of an accused person. 346When the trial Judge informed counsel for the Appellant Darwiche of this change of mind, counsel did not make any submission by reference to R v Rose or otherwise in an effort to persuade her Honour to give such a direction after all. Counsel said that he would "take ... on board" her Honour's indication and was "grateful for the communication" (T2017.49). 347Accordingly, although Mr Lange can point to initial application being made for such a direction, it is the fact that trial counsel did not seek to develop an argument of the type advanced on appeal to this Court. An explanation for this difference may be obtained from an understanding of the way in which this identification evidence was approached at trial. 348Jamal Razzak was not challenged as an honest but unreliable identification witness. Rather, he was challenged as a dishonest witness who was fabricating an account that included a claimed identification of Abdul Darwiche, a person whom he knew well. The circumstances of this evidence are far removed from those in which the frailties of identification evidence of a stranger attract warnings in the course of criminal trials. 349In my view, there is no risk that the jury did not comprehend the nature of the challenge to the evidence of Jamal Razzak identifying Abdul Darwiche. In the context of this trial, and given the challenge to the honesty of Jamal Razzak's evidence in this respect, a direction to the jury concerning the frailties of identification evidence may have had an air of unreality about it. This may serve to explain why trial counsel for the Appellant Darwiche did not persevere with an application for a direction which was not truly grounded in the realities of the trial. 350It is the case that trial counsel did make application for a warning concerning this identification evidence. To the extent that it is required, I would grant leave under Rule 4 to advance the ground of appeal. However, I am entirely unpersuaded that any error has been demonstrated, let alone an error which gives rise to a mistrial and a miscarriage of justice. 351I would reject this ground of appeal.

[47]

Ground of Appeal that the Trial Judge Erred in Continuing with a Portion of the Summing Up in Circumstances Where the Appellant Darwiche's Counsel Was Unable to Remain in Court Due to a Severe Illness (Darwiche Ground 9) 352This ground of appeal contends that the trial Judge erred in not adjourning the trial, on her own motion, when trial counsel for the Appellant Darwiche became ill during the summing up. 353At the conclusion of the morning session on the first day of the summing up, her Honour enquired of counsel (in the absence of the jury) as to whether any of them wished to raise any matter at that point of the summing up. The following discussion took place between counsel and the trial Judge (SU81): "WHITEHEAD [counsel for El-Zeyat] : I have no matters but I am just a bit, a bit worried about Mr Doris who is not feeling very well. DORIS [counsel for Darwiche] : I'm feeling much worse now. I am dizzy, my instructing solicitor can be here for the balance of today's summing up and Mr Whitehead is kindly taking my client's interests to heart. HER HONOUR: If you are content with that Mr Doris. I say that would seem one solution to the problem. Mr Crown, do you have any concern if I were to continue the summing up? I can see Mr Doris is most unwell. I excuse you. I will consider what course to take in light of that, but I apologise for not having observed how unwell you were before now but you are excused. [Mr Doris left courtroom]." 354Discussion then ensued between the trial Judge, the Crown Prosecutor and Mr Whitehead. There was no application to adjourn the trial in the circumstances of counsel's illness. Following the discussion, the trial Judge said (SU82-83): "I think in light of that and in light of the circumstance that his instructing solicitor is present and Mr Whitehead, with whom there is no difficulty in the way of conflict, is available to protect his client's interests. And, bearing in mind that I do not expect to send the jury out this afternoon, my inclination is to continue, rather than lose another half day. I appreciate it may seem like only half a day, but the jury have been very conscientious and I am mindful of the desire they must have to see the matter proceed expeditiously. Given Mr Doris' attitude I think that is the course that I will take." 355Her Honour then took the luncheon adjournment and, upon resumption, said, in the absence of the jury (SU84): "I have given the matter further thought. It seems to me in light of Mr Doris' attitude and the circumstance that the accused's solicitor is present and that Mr Whitehead does not have a difficulty in attending to the summing up with a view to the accused Adnan Darwiche's interests as well as those of his client that the appropriate course is to continue and I propose to do that." 356Her Honour explained to the jury that Mr Doris was unwell, that his solicitor was present to look after his client's interests and that there was no discourtesy from Mr Doris' absence (SU84).

[48]

Submissions 357Mr Lange submits that, even in light of counsel's acquiescence and the Court continuing with the summing up, it was incumbent upon the trial Judge to adjourn to permit counsel to be present. In the particular circumstances of the case, it was submitted that all relevant considerations pointed in favour of simply adjourning the trial until the next day, by which time counsel would have returned. It was submitted that the fact that counsel suggested the course which the trial Judge took was not determinative of the issue. 358Mr Lange submits that the Appellant Darwiche was put to an identifiable disadvantage by the absence of his counsel. During a brief adjournment during the afternoon when Mr Doris was absent, Mr Whitehead asked the trial Judge to draw the jury's attention to the evidence of a highway patrol officer, Mr Haultain, who had stopped Khaled Taleb and had been able to make certain observations of him which were said to be relevant to the question of whether Khaled Taleb had been able to walk at a time relevant to the trial. At the request of Mr Whitehead, the trial Judge reminded the jury of one aspect of Mr Haultain's evidence. When Mr Doris returned the next day, he reminded the trial Judge of other observations of the police officer also relied upon in his closing address. The trial Judge declined to go back to the topic again, observing that she had reminded the jury in broad outline on the issue and did not propose to go back to it, as revisiting it would give it undue prominence (SU132). 359Mr Lange submits that this aspect demonstrated the very real need for counsel to be present during the summing up, unless strong countervailing considerations dictated otherwise, and that the trial Judge had erred in not adjourning the trial of her own motion. 360The Crown submits that the trial Judge did not err in resolving not to adjourn the proceedings of her own motion and contrary to the wishes of counsel for the Appellant Darwiche. It was submitted that Rule 4 has application and that leave to rely upon this ground ought be refused. 361The Crown submits that the solicitor for the Appellant Darwiche was present whilst Mr Doris was absent ill, and that Mr Whitehead had agreed to assist to protect the Appellant Darwiche's interests. Mr Whitehead did so on one occasion and a further direction was given. 362At its highest, the Crown submits that the present complaint was that the trial Judge declined to redirect the jury further than she already had, with the result that the Appellant Darwiche was unable to have the trial Judge's imprimatur given to counsel's submissions. The Crown submits that it was open to her Honour to conclude that to revisit the matter the following day would give it undue prominence.

[49]

Decision 363This ground of appeal should be approached upon the basis that the trial Judge proceeded in the manner suggested by trial counsel for the Appellant Darwiche. Counsel did not seek an adjournment of the trial. It was proposed that the summing up continue with the solicitor for the Appellant Darwiche being present, and with counsel for a co-accused (with whom there was no identifiable conflict of interest) keeping an eye on the interests of the Appellant Darwiche. 364It is apparent that the trial Judge carefully considered, both before and after the luncheon adjournment, whether the summing up ought continue in the absence of counsel, despite the absence of any application for adjournment of the trial. The complaint now is that her Honour erred in failing to adjourn the trial of her motion in the circumstances. 365In my view, Rule 4 is a fundamental impediment to this ground proceeding. An examination of what transpired in the absence of counsel and the following morning does not point to any injustice or unfairness flowing to the Appellant Darwiche. As the Crown points out, the complaint at its highest is that her Honour declined to elaborate further the next day by pointing to additional arguments of counsel on a particular aspect. Whether the trial Judge would have adverted to these matters the previous afternoon, if asked to do so, involves some speculation. 366What is clear is that the trial Judge was not obliged to repeat all aspects of counsel's arguments in the summing up. It is certainly the case that no injustice or unfairness resulted to the Appellant Darwiche because these aspects were not repeated to the jury in the course of the summing up. 367In circumstances where no unfairness or injustice can be demonstrated, and where no adjournment of the trial was sought, I would refuse leave under Rule 4 to advance this ground of appeal.

[50]

Ground of Appeal Suggesting Error on the Part of the Trial Judge in Failing to Direct the Jury that it had to be Satisfied Beyond Reasonable Doubt of the Motive of the Appellant Darwiche and that any Discreditable Conduct Relied Upon to Prove Such Motive Must Also be Proved Beyond Reasonable Doubt (Darwiche Ground 10)

[51]

Submissions 368Mr Lange submitted that the trial Judge fell into error, in respect of Counts 6 and 7, by failing to direct the jury that it had to be satisfied beyond reasonable doubt of the motive of the Appellant Darwiche, and that any discreditable conduct relied upon to prove such motive must also be proved beyond reasonable doubt. 369Mr Lange seeks leave under Rule 4 to press this ground of appeal, which complains of error in directions given to the jury with respect to the Lawford Street shooting. 370Mr Lange pointed to that part of the summing up (SU95-96) where her Honour summarised the way in which the Crown put its case against the Appellant Darwiche with respect to the Lawford Street shooting. The Crown case relied upon: (a) firstly, the body of material concerning relations between the Appellant Darwiche and the Razzak family, that background being said to provide his motive for the commission of this offence; (b) secondly, the evidence of Khaled Taleb concerning preparation for the Lawford Street shooting and the things which he saw and heard between 13 and 17 October 2003; (c) thirdly, the evidence of Wahib Hannouf concerning the conversation that he overheard between the Appellant Darwiche and the Appellant Osman on the evening of 13 October 2003, taken with the evidence of Haissam Hannouf. 371Given the significance of evidence of motive, Mr Lange submitted that the jury ought to have been directed that it should only have regard to the alleged motive if satisfied of it beyond reasonable doubt. Whilst conceding that the jury, as a matter of strict logic, would have been entitled to conclude that the Appellant Darwiche was guilty in respect of Counts 6 and 7 even if motive had not been established by the Crown, Mr Lange submitted that motive was, for practical purposes, indispensable to the Crown case. He submitted that since the motive was equated with a series of prior bad acts, proof of those acts needed to be established by proof beyond reasonable doubt. 372Mr Lange submitted that leave ought be granted under Rule 4 given the fundamental nature of the standard of proof. 373The Crown submitted that leave to press this ground of appeal should be refused. 374The Crown submitted that the Appellant Darwiche's acknowledgment that the jury would have been entitled to convict on Counts 6 and 7, even if motive had not been established by the Crown, was sufficient to dispose of this ground. A fact cannot be regarded as "indispensable" where there is other evidence (apart from that fact) that constituted a case to be left to the jury: R v Davidson [2009] NSWCCA 150; 75 NSWLR 150 at 165 [74]. Where the jury was not being invited to infer guilt from motive alone, a direction that motive must be established beyond reasonable doubt is not required: R v Plevac [1999] NSWCCA 351 at [26]-[28]; R v Fowler [2000] NSWCCA 142 at [83]. In this case, the Crown submitted that there was other and more direct evidence probative of guilt in relation to Counts 6 and 7, in the form of the evidence of Khaled Taleb and Wahib Hannouf. 375The Crown submitted that neither motive nor the evidence of discreditable conduct constituted indispensable links in the chain. There was no complaint at trial, and none advanced on appeal, concerning the directions given to the jury in relation to the approach to be taken to the evidence of Khaled Taleb, nor upon the directions given on the onus and standard of proof. The fact that proof of motive and discreditable conduct was inextricably linked with the evidence of Khaled Taleb demonstrated, on the Crown submission, the redundancy in the Appellant Darwiche's argument.

[52]

Decision 376The submissions advanced in support of this ground of appeal reflect an element of afterthought on the part of counsel who did not appear at the trial, a further example of an "armchair appeal" . 377I accept the Crown submission that there is a fundamental legal difficulty with the ground. Motive was one part of the Crown case against the Appellant Darwiche on Counts 6 and 7, with the direct evidence of Khaled Taleb and Wahib Hannouf constituting other planks of the Crown case. It cannot be said that motive was an indispensable part of the Crown case: R v Davidson at 165 [74]. The related area of prior bad acts on the part of the Appellant Darwiche, which were said to establish motive, were not indispensable parts of the Crown case either. 378There can be no doubt that the jury understood the significance of the evidence of Khaled Taleb and Wahib Hannouf to the Crown case against the Appellant Darwiche on Counts 6 and 7. As the Crown observed, the evidence of motive arising from the history of conflict between the Appellant Darwiche and members of the Razzak family was inextricably linked to the evidence of Khaled Taleb. 379The fact that no direction of the type now pressed by the Appellant Darwiche was sought by trial counsel reflects the real issues in the trial, and the way in which counsel understood that they ought be presented to the jury. No error has been demonstrated in the failure to give the directions sought under this ground of appeal, and no injustice or miscarriage of justice has been demonstrated in this respect. 380I would refuse leave under Rule 4 to press this ground of appeal.

[53]

Grounds of Appeal Challenging the Admissibility, the Use in the Crown Prosecutor's Closing Address and the Directions Given by the Trial Judge With Respect to the Evidence of Haissam Hannouf (Osman Grounds 1, 2, 3, 5 and 6) 381It is convenient to group together a number of grounds of appeal advanced by the Appellant Osman with respect to the admissibility of certain evidence of Haissam Hannouf, the use made of that evidence by the Crown Prosecutor in his closing address to the jury and directions given by the trial Judge to the jury with respect to that evidence. 382By these grounds of appeal, the Appellant Osman now asserts that certain evidence given by Haissam Hannouf as to what he was told by his brother, Wahib Hannouf, was not admissible or was only admissible to establish consistency of conduct on the part of Wahib Hannouf and to enhance his credibility, and was not admissible to prove the truth of the facts asserted by Wahib Hannouf. Each ground of appeal is interrelated, the nub being an allegation of error in relation to the use made of the evidence of Haissam Hannouf, with the submissions on behalf of the Appellant Osman focusing on the asserted impermissible use of this evidence for a hearsay purpose.

[54]

Submissions 383In substance, the arguments advanced by Ms Francis, counsel for the Appellant Osman, are twofold. Firstly, using the analogy of complaint evidence in a sexual assault trial, it is argued that whilst Haissam Hannouf's evidence was admissible to establish consistency of conduct on the part of Wahib Hannouf and to enhance his credibility, it was not admissible under s.66 Evidence Act 1995 to prove the truth of the facts asserted by Wahib Hannouf. Secondly, it is contended that Haissam Hannouf's evidence of what his brother had told him was secondhand hearsay and inadmissible as evidence of the truth of the asserted facts. 384Associated with these grounds of appeal are supplementary Grounds 5 and 6, upon which the Appellant Osman was granted leave to rely at the hearing of the appeal. Grounds 5 and 6 provide additional, but still interrelated bases upon which the Appellant Osman challenges the admissibility of the evidence of Haissam Hannouf on this aspect and its use in the trial. 385In what Ms Francis acknowledged was a "somewhat technical argument" (T141.19, 1 July 2010), she traced through what occurred at the trial with respect to the evidence of Haissam Hannouf. This approach, which may be contrasted with that taken by trial counsel for the Appellant Osman, involved a close examination of the evidence given by Wahib Hannouf and Haissam Hannouf, in conjunction with a close examination of statutory provisions, particularly ss.62 and 66 Evidence Act 1995 . Ms Francis submitted that leave ought be granted under Rule 4 to rely upon these grounds of appeal. 386The Crown submits that the evidence was properly admitted at the joint trial, that the use made of it in the Crown's closing address was not impermissible and that the jury was appropriately directed in relation to it. 387With respect to the amplified grounds and submissions raised by Ms Francis at the hearing before this Court, the Crown submitted that leave under Rule 4 ought be refused. With respect to Ms Francis' submission suggesting error in the approach to the evidence of Wahib Hannouf, the Crown submitted that this was an unduly technical complaint which completely overlooked the fact that the jury had heard for themselves the evidence of Wahib Hannouf concerning what he saw and heard at the planning meeting between the Appellants Darwiche and Osman. This included his description of the nodding of heads and other body movements followed by the departure of the Appellant Darwiche, accompanied by the Appellant Osman, on a drive where the Appellant Osman pointed out the intended target of the drive-by attack and pointed out where the stolen car was later to be burnt. 388The Crown submitted that error had not been established in the approach to this evidence at the trial but that, even if some imperfection may be detected at this stage, there was no miscarriage of justice by reason of the direction given and there was certainly no substantial miscarriage of justice. 389The Crown submission was that, whichever way the issues agitated in these grounds of appeal are considered, the grounds ought not succeed.

[55]

Decision 390At the outset, it must be observed that the approach to these issues on appeal is markedly different to that taken at trial by counsel for the Appellant Osman. Indeed, the close analysis undertaken by counsel for the Appellant Osman before this Court was undertaken by reference to an outline of argument handed up on 1 July 2010 (T129) accompanied by an application to add further grounds of appeal. 391That said, there was some reference during the trial to the application of s.66 Evidence Act 1995 . 392It is appropriate to explain how the evidence, which is the subject of present challenge, came before the jury and was referred to at the trial. 393Wahib Hannouf gave evidence on 6 July 2006. Amongst other things, he gave evidence about his attendance at the home of the Appellant Osman on the evening of 13 October 2003 (T1015ff). The only objection to any part of this evidence by counsel for the Appellant Osman related to form, insisting upon evidence of conversations to be given in the first person. 394The examination in chief of Wahib Hannouf continued. When he came to the conversation said to have taken place at the premises of OJ Smash Repairs in the presence of Haissam Hannouf and Fadi El-Jamal, objection was taken by counsel for the Appellant Osman (T1028). The Crown pressed the evidence under s.66 Evidence Act 1995 . In response to an enquiry from the trial Judge, the Crown indicated that one of the other persons (Haissam Hannouf) was to be called by the Crown (T1028). During the objection, reference had been made to s.66(2)(a) of the Act. After the Crown indicated that one of the other persons was to be called, trial counsel for the Appellant Osman said "In that case it supports it, yes" (T1029.3). Her Honour allowed the evidence (T1029.5). The Crown Prosecutor then asked Wahib Hannouf (T1029.7): "CROWN PROSECUTOR: Q. What did you say to your brother Haissam and Fadi El-Jamal? A: I said to them what I had just heard. I said 'there's going to be a drive-by', you know, and I've mentioned drive-by and fireworks at the Razzak house in Greenacre. And they started laughing, they didn't believe me when I said it to them. I told them, 'Come, I'll take you past'. They said 'alright, we'll go see it'. So I jumped back in my car and they jumped in my brother's car and they followed me. I parked my car in Punchbowl at the units." 395Wahib Hannouf then gave evidence concerning the road journey and was then asked by the Crown (T1029.33): "Q. And what did you do after your parked your car? A. I jumped in my brother's car and I told him to go on Roberts Road, and he did. We drove past Lawford, we were still on Roberts Road and I pointed to the street. I said 'it's about 3 to 4 houses down from El Masri's house'. They knew him too. They were laughing, they didn't believe what I was saying. They said 'don't worry about it, mate, it's not going to happen'. We drove back and went and got a kebab. After that they dropped me off at home." 396In cross-examination, it was put to Wahib Hannouf by trial counsel for the Appellant Osman that no conversations as he asserted had in fact occurred and that he had made them up, a proposition which he rejected (T1054.38). 397Haissam Hannouf was called to give evidence on 7 July 2006. He gave evidence of what his brother Wahib Hannouf said at OJ Smash Repairs in the presence of himself and Fadi El-Jamal and the road journey with them where Wahib Hannouf showed them "where the fireworks were going to be" (T1099.57). Trial counsel for the Appellant Osman objected at times on the basis of form, insisting upon the use of direct speech (T1098-1099). No other objection was taken to the giving of this evidence, nor was any direction sought at that time (or at all) from trial counsel that the evidence ought be treated in a limited way by the jury. 398According to Haissam Hannouf, Wahib Hannouf said to him "You wouldn't believe what I heard ... I heard, I was at Abbas [sic] ' house and I heard ... there's going to be fireworks" (T1097.58-1098.3). Wahib Hannouf told him that he was at the Appellant Osman's home with the Appellant Darwiche and the Appellant Osman as well as "Biggie" (Ali Osman, the Appellant Osman's brother). Wahib Hannouf said: "I heard from the boys there's going to be fireworks at the Razzaks tonight" . Wahib Hannouf told him that "Eddie" (the Appellant Darwiche) was the one saying this and laughing and joking with the rest of the "boys" . Wahib Hannouf did not think that they were being serious. He told Haissam Hannouf that "Biggie" was supposed to organise a car (T1098.52ff-1099). Haissam Hannouf believed that Wahib Hannouf might have been exaggerating or "bullshitting" . 399Haissam Hannouf said to Wahib Hannouf that it all sounded like "bullshit" and that it sounded like "Hollywood" . He advised Wahib Hannouf to keep away and to not even listen to, or talk about, what he had heard. Haissam Hannouf and Fadi El-Jamal then followed Wahib Hannouf to his unit in The Boulevard, Punchbowl. Wahib Hannouf got into Haissam Hannouf's car and they went for a drive as they usually did at night. Wahib Hannouf wanted to show them where "the fireworks" were going to occur (T1099-1100). 400Wahib Hannouf directed Haissam Hannouf where to drive. Before they got to the bridge which passes over the Hume Highway, Wahib Hannouf pointed out the window and said that the "fireworks" would occur in one of those streets. Haissam Hannouf looked but saw nothing as it was dark. He did not really believe what his brother was telling him, and as a result, did not pay much attention to what he was saying. Haissam Hannouf dropped Wahib Hannouf back to his unit, and he and Fadi El-Jamal went home. 401The following morning, 14 October 2003, Haissam Hannouf saw a news report on television which gave an account of two people - a male and a female - having been shot and killed in Greenacre. Haissam Hannouf immediately knew, because of what his brother had told him, that the two people killed were associated with the Razzaks (T1101,1103,1132). 402In cross-examination by trial counsel for the Appellant Osman, Haissam Hannouf agreed that he had not mentioned in his statement dated 27 February 2004, that he had gone for a drive and that Wahib Hannouf had pointed out where the "fireworks" were to occur. He agreed that he only mentioned it in his statement made in November 2004, but disagreed that he did so because Wahib Hannouf told him that he had put it in his statement, or because he had read Wahib Hannouf's statement (T1124). 403Later in the afternoon on 14 October 2003, Haissam Hannouf spoke to Wahib Hannouf and said: "It was true what you told me" (T1132.17ff). Haissam Hannouf stated that at first he had been sceptical about what Wahib Hannouf had told him (T1107; 1109-1110). 404At the commencement of re-examination, the Crown Prosecutor referred to questions asked in cross-examination by trial counsel for the Appellant Darwiche with respect to discussions he (Haissam Hannouf) had had with his brother Wahib Hannouf on the morning after the Lawford Street shooting when he had heard about it in the media (T1162.3). Objection was taken to this by trial Counsel for the Appellants Darwiche and Osman (T1126.21). Her Honour heard submissions in the absence of the jury (T1128-1131). In the course of those submissions, her Honour indicated an intention to give the jury a direction that the evidence was not evidence in the Crown case against the Appellant Osman (T1130). 405In the presence of the jury, the Crown Prosecutor re-examined Haissam Hannouf, eliciting from him what he had said in a statement dated 27 February 2004 concerning a conversation with his brother Wahib Hannouf on the morning after the Lawford Street shooting when Haissam Hannouf saw a report of the shooting on television (T1132). 406Haissam Hannouf agreed that he had asked Wahib Hannouf what had happened and queried why the rocket launcher had not been used. Wahib Hannouf told him that he had seen the Appellant Osman earlier that day and the Appellant Osman told him what had happened the previous night and that Ziad Razzak had been killed. Wahib Hannouf told Haissam Hannouf that the Appellant Osman had told him that Ziad Razzak was supposed to have been in hiding and that the Appellant Darwiche had gotten a tip-off that the Razzaks were in Greenacre. Wahib Hannouf told him that the Appellant Darwiche had gone to the house, jumped the fence and on seeing only Ziad Razzak there, decided that it was not worth wasting the rocket launcher on the house (T1132). 407In accordance with the indication given during submissions, agreed to by the Crown, her Honour then said to the jury (T1132.55): "HER HONOUR: Members of the jury, let me say something about that evidence. It is led for a limited purpose. There was some cross-examination directed to this witness about the concluding paragraph of the statement in which he reported what his brother had said to him, and the evidence has been led by the Crown Prosecutor to put in context the conversation that is said by this witness to have taken place between himself and his brother Wahib. You will hear competing submissions from counsel concerning the credibility of the witness and the evidence may have relevance to your determination of that issue. What I want to emphasize is this, evidence from this witness about things that his brother told him on 14 October sourced to the person Abbas Osman does not constitute evidence in the Crown case against Abbas Osman. When you come to assess what evidence the Crown relies on to establish Abbas Osman's guilt of the offence charged against himself, you put the evidence that you have just heard entirely out of your mind. Equally, the evidence is not led as evidence in the Crown case against Adnan Darwiche as proving his guilt of the offences charged in counts 6 and 7 of his indictment. It is evidence that is limited and relates to the credibility of the evidence of the witness Wahib Hannouf. You will hear, I expect, competing submissions concerning the significance of it in that limited respect. But it is not evidence in the case made by the Crown against either Abbas Osman or Adnan Darwiche upon which you could rely as evidence of guilt of the Lawford Street double murder." 408It will be observed that the trial Judge's direction to the jury with respect to the limited use to be made of this evidence arose directly from the way in which the issue had arisen in cross-examination, and was then taken up by the Crown in re-examination. Her Honour's direction was not intended to be one extending to other parts of the evidence of Haissam Hannouf. Indeed, her Honour was not asked by trial counsel for the Appellant Osman to give such a direction concerning the evidence of Haissam Hannouf either during his evidence or in the summing up. 409Ms Francis contends that, upon proper analysis, the evidence of Wahib Hannouf concerning what he had said to Haissam Hannouf and Fadi El-Jamal at OJ Smash Repairs on 13 October 2003 was not firsthand hearsay, but secondhand hearsay, so that, by operation of s.62 of the Act, the provisions of s.66 Evidence Act 1995 could not render the evidence of Wahib Hannouf and Haissam Hannouf evidence of the truth of the facts asserted in the representations contained in that conversation. Accordingly, Ms Francis submits that the trial Judge erred in admitting the evidence at all or, alternatively, erred in not limiting the use that could be made of the evidence concerning the OJ Smash repairs' conversation and subsequent road journey from Haissam Hannouf as evidence which could relate solely to the credibility of Wahib Hannouf. 410As the Crown has pointed out, this was not the approach taken at trial by counsel for the Appellant Osman. It is the case that objection was taken to this part of the evidence of Wahib Hannouf and that the Crown relied upon s.66 in support of its tender. In my view, the proper construction of what happened at that point was that trial counsel for the Appellant Osman did not pursue the objection when it was said that Haissam Hannouf was to be called. Thereafter, apart from the specific area of objection in the re-examination of Haissam Hannouf (which stands alone), no objection was taken to the evidence of Haissam Hannouf by trial counsel for the Appellant Osman nor was any further direction sought in the trial or summing up that the evidence of Haissam Hannouf in this area ought be limited. 411Accordingly, a clear impediment lies in the path of reliance upon these grounds by operation of Rule 4. 412Ms Francis submitted that, having regard to the Hannoufs, whilst evidence going only to credibility may be regarded as providing some support for the acceptance of another witness, it was not capable of providing support for Wahib Hannouf's account generally, but merely supportive of the proposition that he spoke to Haissam Hannouf about it. Ms Francis submitted that Haissam Hannouf's evidence concerning these conversations with Wahib Hannouf was secondhand hearsay. Accordingly, she submitted they were not admissible under s.66 Evidence Act 1995 to prove the fact of the content of the representations (which differed, in any event) because, as evidence of that fact, it was not firsthand hearsay, but secondhand hearsay and, by virtue of s.62 of the Act, s.66 is restricted to firsthand hearsay. 413Ms Francis acknowledges that the basis for the admission of the evidence was not the subject of discussion at trial, nor was it the subject of objection. 414I accept the Crown submission that the conversation at OJ Smash Repairs involved Wahib Hannouf reporting an event, and not merely asserting what he had been told with himself having no knowledge other than what had been asserted to him. Wahib Hannouf had observed actions of persons, including observations on a road journey to premises, together with the things which were said to him, all of which were fresh in his memory when he recited them at the premises of OJ Smash Repairs. 415The evidence of Haissam Hannouf was given without objection. It was not said that Haissam Hannouf had directly observed any of the Appellants acting or speaking in a way that incriminated them. The evidence of Haissam Hannouf only concerned what his brother, Wahib Hannouf, said and described to him. In a practical sense, the evidence of Haissam Hannouf could rise no higher than its source, namely what Wahib Hannouf had said and described. The jury would have approached the evidence in this way. 416I do not accept the complaint with respect to the Crown Prosecutor's address reflected in the Appellant Osman's first ground of appeal. I accept the Crown submission in this Court that the Crown Prosecutor's address was entirely consistent with the manner in which the evidence was adduced from Wahib and Haissam Hannouf at trial, including the trial Judge's limited-use direction which concerned evidence addressed in re-examination (T1132-1133). 417The Crown Prosecutor correctly characterised the nature of the evidence given by Haissam Hannouf, namely that his evidence of the representations made by Wahib Hannouf before the attack was evidence that Wahib Hannouf had some knowledge of the fact that that event was to take place. An immediate complaint to Haissam Hannouf supported the assertion by Wahib Hannouf about what he was told on that day. I do not accept that the Crown closing address impermissibly used the evidence of Haissam Hannouf. Rather, the Crown made it clear that the use to be made of it by the jury went to the issue of Wahib Hannouf's credit (T1934). 418With respect to the Appellant Osman's Ground 3(a) and 3(b) concerning her Honour's summing up, complaint is now made that the trial Judge did not say more concerning the limits of the evidence of Haissam Hannouf. No further direction was sought by trial counsel for the Appellant Osman along the lines now sought in this Court. 419I have carefully considered the content of the summing up where the trial Judge referred to the evidence of Haissam Hannouf, in particular with respect to the case against the Appellant Osman (SU165-167). I am entirely unpersuaded that any error has been demonstrated in her Honour's directions to the jury. 420I am not persuaded that error has been demonstrated in the manner contended for by Ms Francis in this Court. In my view, neither the Crown Prosecutor's closing address nor the trial Judge's summing up conveyed a misleading impression to the jury concerning the use which could be made of the evidence of Haissam Hannouf. 421This conclusion is reinforced by the fact that trial counsel did not take issue at trial along the lines now agitated by Ms Francis in this Court. 422Even if there was some technical defect in the approach to Haissam Hannouf's evidence following a close examination of ss.62 and 66 Evidence Act 1995 (and I am not persuaded that is so), it is quite clear that no miscarriage of justice has been demonstrated. 423To the extent that argument has been advanced in this Court that something additional or different ought to have been said at trial, Rule 4 constitutes an impediment to such grounds being entertained. The Applicant Osman has not demonstrated that a miscarriage of justice has resulted so that this Court should grant leave under Rule 4 to permit these grounds to go forward 424I would refuse leave under Rule 4 to press these grounds of appeal and would, in any event, dismiss each ground of appeal.

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Applications Made After Hearing and Whilst Judgment is Reserved by Appellants Darwiche and El-Zeyat for Leave to Add Further Grounds of Appeal 425Some considerable time after the Court concluded the hearing of the appeals and had reserved judgment on 2 July 2010, documents were provided to the Court on behalf of the Appellants Darwiche and El-Zeyat seeking leave to add further grounds of appeal. The applications sought leave to add grounds contending that a miscarriage of justice resulted from the absence at trial of what was said to be fresh evidence. 426The procedure utilised by the legal representatives for these Appellants involved the delivery of a Notice of Motion, accompanied by other documents, to the Registry, without notice being given to the Judges who constituted the Court, nor permission being sought from those Judges for such steps to be taken. 427No application was made by the Appellants Aouad and Osman for leave to add further grounds. 428The Crown objected to the entire process upon the basis that the hearing was complete. Reliance was placed by the Crown upon statements of courts which have deprecated the provision of written submissions without leave after the completion of a hearing: Carr v Finance Corporation of Australia Limited [No. 1] [1981] HCA 20; 147 CLR 246 at 257-258; Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at 330 [29]-[31]. 429Mr Lange submits that Rule 25A Criminal Appeal Rules permits (and requires) an appellant intending to rely on grounds of appeal not stated in his Notice of Appeal to send his notice of additional grounds of appeal to the Registrar, with the Court being empowered to extend (at any time) the time fixed for this to be done beyond the 28 days prescribed in Rule 25A(1). He submits that Rule 25A(2) is not confined in any temporal way and is not limited to the time prior to the hearing of the appeal and that the Court is seized of the matter prior to the entry of its judgment and orders: Burrell v The Queen [2008] HCA 34; 238 CLR 218. 430Mr Ramage QC adopts the submissions of Mr Lange in this regard. 431It is open to the Court to grant leave for an appellant to add further grounds of appeal after the completion of the hearing and whilst judgment is reserved. Whether the Court will grant such leave involves a discretionary assessment in the circumstances of the particular case. 432This is not a case where unsolicited further written submissions are provided by the parties addressing grounds of appeal which have already been argued, the circumstances which have attracted criticism in Carr v Finance Corporation of Australia Limited [No. 1] and Eastman v Director of Public Prosecutions (ACT) , and also from this Court in Nguyen v R [2008] NSWCCA 322 at [27]-[32]. The Appellants here seek to add further grounds of appeal raising new subject matter. 433When an application such as this is made, it is appropriate for the Court to have regard to the history of the appeals before the Court, the time which has passed both before the appeal was heard and since judgment was reserved and the nature of the proposed grounds in relation to which leave is sought. 434This Court will take a rigorous approach to the discretionary determination as to whether leave to add further grounds ought be granted where there has been a full hearing of the grounds previously identified by an appellant, and with the Court having reserved judgment on the appeal. 435Rule 25A Criminal Appeal Rules ought be construed and applied in the context of a statutory appellate scheme where the expectation of the Court, the parties and the community will be that all grounds of appeal ought be identified by the time that the Court has concluded the oral hearing of the appeal. Rule 25A does not constitute a type of open-ended opportunity for an appellant to advance, on a rolling basis, additional grounds of appeal with the Court receiving Notices of Motion, affidavits and submissions and, perhaps, reconvening to deal with such applications. Such an approach would be contrary to the public interest in the proper and efficient discharge of this Courts' appellate function under the Criminal Appeal Act 1912 and the Criminal Appeal Rules . 436The Court sat on 22 March 2011 to hear submissions on the question whether leave ought be granted to the Appellants Darwiche and El-Zeyat to add further grounds of appeal. The parties had made written submissions with respect to the applications and the Court received a number of affidavits and documents from the Appellants and the Crown. At the conclusion of oral submissions, the Court reserved its decision on the leave applications. 437Counsel for the Appellants submitted that leave ought be granted. The Crown submitted that, for various reasons including delay and lack of merit, the Court should refuse leave.

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The Applicable Test - Claim of Miscarriage of Justice Resulting from Absence at the Trial of Fresh Evidence 438It was common ground on the applications for leave that the principles to be applied by this Court when considering a ground of appeal based on what is alleged to be fresh evidence were accurately stated by Kirby J (Mason P and Levine J agreeing) in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 at 427-428 [63]: "The principles may be summarised as follows: · First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence. · Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v R [(1974) 131 CLR 510] per Barwick CJ at 512). · Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v R (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301). · Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought. · Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v R (above) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v R (1986) 160 CLR 392 at 398/399). · 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 R (above) per Gibbs CJ at 395), or 'plausible' (Mickelberg v R (above) per Toohey and Gaudron JJ at 301)? · 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 R (above) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v R (above) per Mason and Deane JJ at 402)? See Mickelberg v R (above) per Toohey & Gaudron JJ at 301-302. · Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s 474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v R (above) at 517)." 439The applications proceeded upon the basis that the proffered evidence was said to be "fresh" and not "new" . It was argued that the grounds, if successful, would see the Court finding that there had been a miscarriage of justice and ordering a new trial.

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Application by Appellant Darwiche for Leave to Add Ground 11 - the Affidavit of Sheikh Tay Eldeen Alhilali 440A further hearing of the associated appeals concerning the Fahda murder took place following the filing of additional grounds of appeal by the Appellants Aouad and El-Zeyat based upon fresh evidence. The Court received extensive additional submissions in the associated appeals with respect to the further grounds of appeal: Aouad v R; El-Zeyat v R at [313]-[368]. 441The Court reserved its decision in the present appeals on 2 July 2010. There was no indication from counsel in the present appeals that any developments by way of additional grounds of appeal in the associated appeals may have a flow-on effect to the present appeals. 442On 3 November 2010, Mr Lange furnished a document entitled "Further Submissions on Behalf of the Appellant" together with a Notice of Motion which sought leave to amend the Notice of Appeal to add further grounds of appeal. 443The Appellant Darwiche sought leave to amend the Notice of Appeal dated 12 February 2010 by adding the following ground of appeal: "Proposed Ground 11 - 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 Sheik Taj Eldeen Alhilali on 8 July 2004)." 444Proposed Ground 11 is in similar terms to the Appellant El-Zeyat's Ground 6 in the related appeal concerning the Fahda murder. In written submissions, Mr Lange acknowledged that this is the source of the ground which he seeks leave to bring in the present appeal on behalf of his client.

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Submissions 445Mr Lange's written submissions in support of Proposed Ground 11 seek to identify some purpose in the proposed ground despite the fact that Bassam Said was not a Crown witness at the trial to which this judgment relates. Mr Lange contends that, in some way, the events disclosed in the fresh evidence in the associated appeal with respect to Detective Kilani may extend to Wahib or Haissam Hannouf or both of them. He submits that the fresh evidence in the associated appeal may serve to undermine the strength of the evidence of the Hannouf brothers. 446Mr Lange submits that the evidence in relation to Detective Kilani demonstrates that the police were prepared to go to improper lengths to secure a conviction so that the defence should have been in a position to call relevant witnesses and establish any misconduct on the part of the investigating officers: R v Busby (1982) 75 Cr App R 79. 447The Crown submits that the Court should not be persuaded that there is sufficient merit to justify the grant of leave to add Proposed Ground 11. The Crown submitted that Bassam Said did not give evidence in the trial giving rise to the present appeal. It was submitted that Proposed Ground 11 is irrelevant and is not capable of affecting the verdicts at the subject trial.

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Decision 448I have considered carefully the material relied upon by the Appellant Darwiche in support of Proposed Ground 11 and the material relied upon by the Crown in opposition to the grant of leave. For reasons disclosed in the judgment in the associated appeal, it may be taken that this evidence is both fresh and credible. The difficulty lies at the third stage of the inquiry, namely an assessment of the impact (if any) of the evidence at the trial. 449Bassam Said was not a witness in the trial that led to the convictions of the Appellant Darwiche which are the subject of the present appeal. Nor was Detective Kilani. I do not consider that any basis has been demonstrated to, in some way, link the actions of Detective Kilani with respect to Bassam Said with any issue in the subject trial relating to the Hannouf brothers or otherwise. I do not think that anything said in R v Busby assists the present application. 450I am entirely unpersuaded that a foundation has been established for the Court to grant leave for the addition of this ground. It is clear that the fresh evidence, viewed in the context of the evidence given at the trial, would not have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the Appellant Darwiche, nor is there a significant possibility that the jury, acting reasonably, would have acquitted him. 451The Appellant Darwiche has not demonstrated that leave ought be granted to add Proposed Ground 11. Accordingly, leave ought be refused.

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Applications by Appellant Darwiche to Add Ground 12 and the Appellant El-Zeyat to Add Ground 7 - the Joe Osman/Fadi El-Jamal Affidavit 452The Notice of Motion of the Appellant Darwiche filed 3 November 2010 and a Notice of Motion of the Appellant El-Zeyat filed 14 February 2011 both sought leave to add the following ground of appeal as Proposed Ground 12 (Darwiche) and Proposed Ground 7 (El-Zeyat): "A miscarriage of justice resulted from the absence at the trial of fresh evidence, namely the evidence provided by Joe Osman in an affidavit dated 12 October 2010." 453It was common ground that Joe Osman is Fadi El-Jamal, and he will be so referred to hereafter. 454In support of this application, the Appellant Darwiche also relied upon the affidavit of his solicitor, Abdul Reslan, sworn 3 November 2010. The Appellant El-Zeyat relied upon the affidavit of his solicitor, Ender Nedim, sworn 8 March 2011. 455With respect to the applications based upon the affidavit of Fadi El-Jamal, the Crown relies upon the following affidavits: (a) affidavits of Mark Wakeham sworn 9 December 2010 and 18 March 2011; (b) affidavits of Neil Tuckerman sworn 14 December 2010 and 18 March 2011; (c) affidavits of Maria-Rosa Etnasios sworn 9 December 2010 and 18 March 2011; (d) affidavit of Russell William Oxford sworn 18 March 2011; (e) affidavit of Tamar Kilani sworn 18 March 2011. 456Fadi El-Jamal's affidavit claims that Detectives Tuckerman, Wakeham and Kilani approached him in November 2003, asking questions about his knowledge of the Appellant Darwiche. He states that he refused to sign a statement. He alleges that Detective Tuckerman assaulted him at one point and that it was only after this that he signed a statement. The deponent states that in 2006 whilst in custody, he was served with a subpoena to attend a court hearing in relation to the Appellant Darwiche and that, when he was shown the statement, he told the court that the words were not his own. 457The affidavit of Mr Reslan affirmed 3 November 2010 annexes a transcript dated 14 March 2006 when Fadi El-Jamal was called as a witness on a voir dire before the trial Judge. In evidence, Mr El-Jamal denied that the statement carried his signature. He said he could not recall whether the contents of the statement were things he told Detective Wakeham. Mr El-Jamal was stood down and the transcript extract (pages 68-71) attached to Mr Reslan's affidavit does not reveal what happened thereafter.

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Submissions 458In support of Proposed Ground 12, Mr Lange contends that any material which undermined the credibility of Khaled Taleb was of the utmost importance, and that evidence of bias on the part of investigating officers would cast a shadow over the way in which Khaled Taleb's statement was prepared. He submitted that any evidence of bias on the part of Detective Wakeham would also have a tendency to undermine the credibility of Khaled Taleb because of Detective Wakeham's involvement with Abdul Taleb. He also submitted that the evidence implicated Detective Tuckerman, one of two officers who took Khaled Taleb's statement, in misconduct and that this suggested a bias against the Appellant Darwiche. Mr Lange submitted that given the nexus between Detective Tuckerman and Khaled Taleb, this evidence was extremely cogent and would play a central role in the jury's deliberations. Reliance was placed again upon R v Busby , and the proposition that the suggested bias of the investigating officers was relevant, and that evidence ought be allowed concerning the alleged "improper lengths" to which the officers were prepared to go to secure a conviction. 459Mr Ramage QC submitted that the evidence of Fadi El-Jamal was relevant as it went directly to the veracity, credibility and methodology of the prosecution witnesses Detectives Tuckerman, Wakeham and Kilani and tended to support a corrupt methodology on the part of those police involved in both trials and the way in which final witness statements were obtained. He submitted that Fadi El-Jamal's affidavit is "positive evidence of chicanery" and that the evidence, in the context of the trial, is likely to have had an effect on the jury which transcended their consideration of the probity of the Hannouf brothers. 460The Crown submits that the affidavit of Fadi El-Jamal is not fresh or credible evidence. No reason had been advanced as to why it was not available to the defence at trial. The Crown submits that there is no prospect that this evidence could possibly have caused a jury to have entertained a reasonable doubt about the guilt of the Appellant Darwiche in any event. The material is not capable of damaging the evidence of Detective Wakeham and is irrelevant to an assessment of Khaled Taleb. It cannot be demonstrated that a miscarriage of justice has been occasioned by the absence of the evidence. 461The Crown challenged the truthfulness of the affidavit of Fadi El-Jamal and denied the allegations of police intimidation contained in that affidavit. Affidavits of Detectives Wakeham and Tuckerman expressly denied the allegations. Each officer acknowledged having contact with Fadi El-Jamal in November 2003 and May 2004 when statements were obtained from him using the pseudonym Samear Havda. The statements are annexed to the affidavit of Detective Wakeham. Detective Tuckerman states in his affidavit that his dealings with Fadi El-Jamal led him to believe that he would give evidence in accordance with his statement, and that Fadi El-Jamal first indicated that he did not wish to give evidence or further assist police after he was charged with murdering Mark Nichols in September 2005. 462The affidavit of Ms Etnasios annexes the complete transcript of the voir dire hearing before Bell J on 14 March 2006. The initial evidence of Fadi El-Jamal (pages 68-71) lies within that transcript. These pages alone are annexed to Mr Reslan's affidavit. Thereafter, Detective Tuckerman gave evidence (and was cross-examined) with respect to statements taken from Fadi El-Jamal (pages 73-89) before Fadi El-Jamal returned to the witness box and was cross-examined, by leave, by the Crown under s.38 Evidence Act 1995 (pages 93-96). At no point in evidence that day did Fadi El-Jamal allege that he had been assaulted or threatened by police officers. 463The Crown submits that had the evidence been available to the defence at trial, it is not clear how that evidence would have been introduced. It would not be to the Appellant Darwiche's advantage to have Detective Tuckerman or Detective Wakeham called to deny any misconduct in circumstances which would have enabled the Crown to call evidence of the contents of Fadi El-Jamal's statements. 464The Crown submits that the application lacks sufficient merit to warrant leave for the Appellant Darwiche to be allowed to rely upon Proposed Ground 12. 465With respect to the Appellant El-Zeyat's application, the Crown submits that the affidavit of Fadi El-Jamal is not fresh, credible and plausible and that, in any event, when evaluated in light of all evidence, it could not lead to the conclusion that there was a significant possibility that the jury, acting reasonably, would have acquitted the Appellant El-Zeyat.

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Decision 466The present question is whether leave ought be granted to the Appellants Darwiche and El-Zeyat to rely upon the proposed grounds based upon the affidavit of Fadi El-Jamal. Relevant to the exercise of the Court's discretion is the arguability of the proposed grounds. Also relevant is the time at which the applications are made in the context of the appellate process. The Court will bear in mind as well the nature of the charges of which the Appellants were convicted and the sentences imposed. 467The Court of Criminal Appeal has a responsibility on an application such as this to assess the cogency and probative value of the evidence sought to be relied upon as fresh evidence. The Court should look at all the circumstances, including the identity of the proposed new witness or witnesses, their past involvement in the proceedings, what they have said before and what they say now and the time at which they come forward with what is said to be fresh evidence. 468In circumstances where a lengthy and well-publicised trial took place in 2006 and appeals against conviction only came for hearing before the Court of Criminal Appeal in June/July 2010, the Court is entitled to consider the circumstances with greater circumspection. It could not be said that there had not been an opportunity to explore all possible or potential grounds of appeal, and to take all steps necessary to prepare and file grounds of appeal and any evidence sought to be relied upon at the hearing of the appeal. 469The protracted delay in the present appeals coming before the Court has been referred to in that part of the judgment concerning applications for extension of time by the Appellants Darwiche and Osman (at [34]-[43] above). 470The Court is also entitled to have regard to events which transpired at the hearing of the appeals. During the course of the hearing between 29 June and 2 July 2010, it became progressively clearer that the Appellants in the related appeal wished to rely upon a fresh evidence ground. Following the filing of affidavits and submissions, it became apparent that the material relied upon (the affidavit of Sheik Taj Eldeen Alhilali) was not significantly disputed by the Crown, in view of the affidavit of Detective Kilani and other material furnished by the Crown. 471The timing of these applications, and the evidence relied upon with respect to them, require an additional degree of caution in assessing the material. 472In the same way that juries are instructed to use their common sense and their experience of life in their deliberations, this Court is entitled to approach the emergence of evidence such as this, given its timing and content, with very considerable circumspection. A too-ready acceptance of suspect material, provided long after the trial, would be contrary to the proper administration of justice. The Appellants were convicted by a jury following a lengthy trial. This Court should take a most guarded approach where evidence such as this is proffered long after the trial in support of a ground of appeal asserting that there has been a miscarriage of justice resulting from the absence at the trial of suggested fresh evidence. 473This Court is not bound to accept the credibility or plausibility of evidence such as this, in the absence of cross-examination of the deponent. The Court may form a view for the purpose of a discretionary determination concerning leave, by perusal of all the affidavits and documentary material, viewed against the background of the trial. 474In my view, the Appellant Darwiche has failed to demonstrate that the evidence contained in the affidavit of Fadi El-Jamal is fresh evidence. Even allowing great latitude on the application, it may readily be concluded that the evidence was at least constructively available to the Appellant Darwiche in that it could have been discovered or made available at the trial by the exercise of due diligence. 475The Appellant Darwiche was aware, on 14 March 2006, that Fadi El-Jamal was not adhering to the contents of statements which he was said to have made. Fadi El-Jamal remained in the New South Wales prison system in and after March 2006. There is no evidence that he was not available if the legal representatives for the Appellant Darwiche wished to speak to him. There is no evidence that they took steps to do so. 476It would have been apparent at that time, given the charges brought against the Hannouf brothers with respect to Fadi El-Jamal, that there was no love lost between Fadi El-Jamal and the Hannouf brothers. In circumstances where Fadi El-Jamal was asserting, contrary to the police evidence, that he had not signed the Samear Havda statements, it would have been apparent to the Appellant Darwiche and his legal representatives that there was a level of tension between Fadi El-Jamal and the police. The Appellant Darwiche and his legal representatives were put on notice that Fadi El-Jamal was asserting, at that time, that he had not signed statements which were damaging to the Appellant Darwiche. 477There is no evidence adduced in support of the application from the trial solicitor or counsel for the Appellant Darwiche concerning what was or was not known, or what was or was not done before or during the trial (and why) concerning Fadi El-Jamal, once it was known by 14 March 2006 that he was not coming up to proof. 478I am well satisfied that this constitutes a form of constructive notice, and certainly a situation where a prudent and competent legal representative would seek to speak to Fadi El-Jamal concerning what occurred at the time when the statements had allegedly been taken and signed. 479It is notable that the affidavit of Fadi El-Jamal does not state the he told no one about the matters alleged in his affidavit until recent times. The position may be contrasted with the affidavit of Sheikh Tay Eldeen Alhilali in the associated appeal. 480Likewise, it is notable that there is no affidavit from the Appellant Darwiche in support of his application. 481It is noteworthy that, on 28 July 2006, trial counsel for the Appellant Osman sought a Jones v Dunkel direction arising from the Crown not calling a range of persons, including Fadi El-Jamal (SU175-176). The Crown Prosecutor made the following submission and counsel did not press the application (SU176): "CROWN PROSECUTOR: The Crown submits your Honour should not give a Jones v Dunkel direction in relation to any of those witnesses. ... Fadi El-Jamal, though there is no explanation before the jury, it was a difficult matter for the Crown to explain before the jury he had in fact given a statement implicating these accused and then recanted and said that he had not in fact given that statement. It is not always necessary in order to determine a Jones v Dunkel. McSPEDDEN: I do not press that." 482An assessment, on the papers, of Fadi El-Jamal's account gives rise to the following concerns which relate to credibility and plausibility: (a) There is no doubt that Fadi El-Jamal was an associate of the range of persons involved in the trial, either as Crown witnesses or accused persons. The contents of the statements which the police assert Fadi El-Jamal made in 2003 and 2004, using the pseudonym Samear Havda, do not seem fanciful. It is noteworthy that, in his evidence on the voir dire on 14 March 2006, Fadi El-Jamal did not deny telling police what was contained in the statements. He said he could not recall. (b) It is clear that Fadi El-Jamal declined to adopt the statements at the voir dire on 14 March 2006, by which time he had been charged with murder. However, no allegation of assault or pressure was made by him at that hearing. (c) Certainly by March 2006, if not well before, there was clear antagonism between the El-Jamal brothers (Fadi and Houssam) and the Hannouf brothers (Wahib and Haissam) - there was no good reason why the El-Jamal brothers would withhold any knowledge which they had which was adverse to the Hannouf brothers. (d) Long after the trial and the hearing of the appeal, Fadi El-Jamal now asserts that there was police pressure and an assault upon him. (e) Affidavits are on from the relevant police officers which explain the circumstances in which the statements were taken and deny any misconduct - the content and context of the Samear Havda statements tend to undermine the credibility or plausibility of Fadi El-Jamal's recent affidavit. 483There is a strong flavour of recent invention surrounding the affidavit of Fadi El-Jamal. Even if his evidence was admitted before the jury, careful directions would have been required concerning any reliance being placed upon it, in particular in the absence of corroboration. 484It is fair to observe from the totality of the material available to the Court on this application, including the complete transcript of 14 March 2006, the statements said to have been made by Fadi El-Jamal in 2003 and 2004 and the affidavits of Detectives Tuckerman and Wakeham, that very significant credibility issues affect that affidavit. I am not persuaded that the affidavit of Fadi El-Jamal is credible or plausible. 485Even if the evidence was fresh and credible, it is difficult to see how this evidence could be deployed by the defence in this trial. Defence counsel would have to attempt to challenge the credibility of Detectives Tuckerman and Wakeham by reference to events unrelated to Khaled Taleb so that, in turn, there could be a challenge to the credibility of the evidence of Khaled Taleb and, perhaps, an attempt to bolster the credibility of the evidence of Abdul Taleb. All of this has an air of unreality about it. 486I do not accept Mr Lange's submission that the Crown has difficulty in articulating how the contents of Fadi El-Jamal's statements could be placed before a jury. The forensic purpose which Mr Lange attempts to advance would require counsel for the Appellant Darwiche seeking to establish that Fadi El-Jamal's statements contained incriminating assertions concerning the Appellant Darwiche. In my view, the Crown would be entitled to adduce evidence beyond that. All of this undermines the submission that, even if the evidence is fresh and credible, that it could have been deployed at this trial in a way that establishes a miscarriage of justice. 487I have carefully considered the material provided to the Court with respect to the Appellant Darwiche's application. The application fails with respect to each of the three questions to be asked on the application. I am entirely unpersuaded that the Appellant Darwiche ought be granted leave to rely upon Proposed Ground 12. 488The same conclusion may be reached with respect to the Appellant El-Zeyat's Proposed Ground 7. 489There is no affidavit from the Appellant El-Zeyat in support of this application asserting prior ignorance of Fadi El-Jamal's account. By way of contrast, there is an affidavit from the Appellant El-Zeyat (sworn 14 July 2010) in the associated appeal. In that affidavit, the Appellant El-Zeyat states that he had only recently heard of the conversation between Bassam Said and Sheikh Taj Eldeen Alhilali, being the fresh evidence adduced in that appeal. 490The application by the Appellant El-Zeyat to rely upon Proposed Ground 7 is accompanied by an affidavit of Ender Nedim sworn 8 March 2011. Mr Nedim states in that affidavit that he started acting for the Appellant El-Zeyat around early 2006 and was instructed in the first trial involving the murder of Ahmed Fahda and that he instructed Mr Gregory Stanton of counsel in that matter. Mr Nedim states that he has continued to act for the Appellant El-Zeyat "on the appeal" . 491Mr Nedim does not state that he acted for the Appellant El-Zeyat at the second trial, being the Lawford Street shooting trial. It is the second trial which is relevant for present purposes. 492Mr Nedim recites the receipt of the affidavit of Fadi El-Jamal and states that he has "never received instructions from Mr El-Zeyat to the affect [sic] that Joe Osman and Houssam El-Jamal were able to provide the evidence contained in there [sic] respective affidavits" (paragraph 7, affidavit, E Nedim, 8 March 2011). A statement that Mr Nedim never received instructions from his client that Fadi El-Jamal was able to provide evidence as contained in the affidavit, does not demonstrate that the material is fresh evidence. 493There is no evidence from the trial solicitor for the Appellant El-Zeyat at the second and presently relevant trial as to what was known or done with respect to Fadi El-Jamal (after 14 March 2006). 494It has not been demonstrated that this evidence is fresh and that it is credible and plausible. Even if credible, it could not have been deployed in a way which allows this Court to conclude that a miscarriage of justice has resulted. 495I would refuse the Appellant Darwiche leave to rely upon Proposed Ground 12. 496The Appellant El-Zeyat ought be refused leave to rely upon Proposed Ground 7.

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Applications by Appellant Darwiche to Add Ground 13 and the Appellant El-Zeyat to Add Ground 8 - The Houssam El-Jamal Affidavit 497The Appellant Darwiche's Notice of Motion of 1 February 2011 and the Appellant El-Zeyat's Notice of Motion of 14 February 2011 sought leave to add the following as Ground 13 (Appellant Darwiche) and Ground 8 (Appellant El-Zeyat): "A miscarriage of justice resulted from the absence at the trial of fresh evidence, namely the evidence provided by Houssam El-Jamal in the affidavit affirmed on 31 January 2011." 498The affidavit of Houssam El-Jamal states that, on 8 November 2003, he was kidnapped by Wahib and Haissam Hannouf at gunpoint from his family's smash repair business at Condell Park. He states that he was released on 11 November 2003 after his family paid a ransom to Wahib and Haissam Hannouf. Soon after his release, he states that he made a full statement to the police. 499Houssam El-Jamal states that, on 8 January 2004, he was arrested and charged with an armed robbery offence. He was refused bail and was held at the Metropolitan Remand and Reception Centre at Silverwater for about two weeks. He states that, on or about 21 January 2004, he was transferred to the Long Bay Correctional Centre and was placed within the SPC Section in C Wing. 500He states that, approximately four weeks later, he was approached by a correctional officer and advised that he would need to be moved within the SPC Section to B Wing, as four Hannouf brothers would be arriving in C Wing, being Wahib, Haissam, Ahmad and Rabi Hannouf. He states that he was moved to B Wing and remained there for about one year and five months. 501Houssam El-Jamal says that, soon after his arrival in B Wing, he was approached by the intelligence officer at Long Bay Correctional Centre and asked whether he had any issues with a person named Bassam Said as it was planned to move him to B Wing. He responded that he did not know the person and that there would not be any issue if he was moved to the same Wing. 502Houssam El-Jamal states that, thereafter, he developed a friendship with Bassam Said, who informed him that he had been moved from C Wing due to consistent communication over the walls in C Wing to the Hannouf brothers. He states that Bassam Said told him, in effect, that police had forced him to make statements adverse to the Appellants Aouad and El-Zeyat with respect to the Fahda murder. 503He alleges that Bassam Said would communicate with the Hannouf brothers and that he overheard these conversations. 504Houssam El-Jamal alleges that he heard, on different occasions, Wahib and Haissam Hannouf speaking to Bassam Said (who was on the other side of the wall dividing the two yards) and telling him that they had, in effect, given false information to police about the Appellant Darwiche. Critically, Houssam El-Jamal expressly asserts Wahib Hannouf to have discussed telling police that he overheard the Appellant Darwiche say to the Appellant Osman that "there would be fireworks at the Razzaks tonight" , with an inference that either Wahib Hannouf had fabricated this evidence or it was based on information improperly given to him by the police. Houssam El-Jamal asserts he heard both of the Hannouf brothers discussing "how easy it was to make their statements because cops were spoon feeding them information relevant to the investigation" . 505Houssam El-Jamal does not state in the affidavit that he kept these matters to himself thereafter. 506The application by the Appellant Darwiche is not accompanied by any affidavit of a solicitor who acted for him at trial or on appeal. Nor is there any affidavit from the Appellant Darwiche himself. Accordingly, there is no evidence as to the time when the Appellant Darwiche, or any of his legal representatives, became aware of any of the matters alleged by Houssam El-Jamal in his affidavit of 31 January 2011. 507The affidavit of Mr Nedim sworn 8 March 2011 does not assert that he acted for the Appellant El-Zeyat at the Lawford Street shooting trial. An extract from Mr Nedim's affidavit appears at [492] above. 508With respect to the applications based upon the affidavit of Houssam El-Jamal, the Crown relied upon the following affidavits and report: (a) affidavit of Maria-Rosa Etnasios sworn 18 March 2011; (b) affidavit of Mark Wakeham sworn 18 March 2011; (c) affidavit of Tamer Kilani sworn 14 March 2011; (d) affidavit of Russell William Oxford sworn 18 March 2011; (e) affidavit of Robert Neil Tuckerman sworn 18 March 2011; (f) report dated 18 March 2011 from Wayne Creighton, Department of Corrective Services. 509The affidavits and report furnished by the Crown indicate that steps were taken by the investigating police officers not to inform any potential witness of the account given by any other potential witness in the course of taking statements, including statements taken from Bassam Said, Khaled Taleb, Wahib Hannouf and Haissam Hannouf. There is also a denial by Wahib and Haissam Hannouf that they said the things attributed to them by Houssam El-Jamal. These denials are contained, in a hearsay form, at paragraphs 18-25 of the affidavit of Russell William Oxford sworn 18 March 2011. That affidavit reveals that the Hannouf brothers are currently living at an undisclosed location under new identities (paragraph 16). The report of Mr Creighton indicates that it would have been possible for inmates to communicate from yard to yard, although they were neither allowed nor encouraged to do so given the reasons for inmates being held in the SPC.

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Submissions 510Mr Lange submits that the affidavit of Houssam El-Jamal goes to three issues: (a) the credibility of Wahib Hannouf; (b) the ability of Wahib and Haissam Hannouf to co-ordinate their accounts; and (c) the influencing of witnesses by investigating officers. 511Mr Lange submits that this evidence would serve to undermine the evidence of Wahib Hannouf which, in certain respects, was relied upon by the Crown as support for the evidence of Khaled Taleb. Further, he submits that the affidavit of Houssam El-Jamal points to discussion between the Hannouf brothers for the purpose of co-ordinating their accounts, and that this evidence would assist trial counsel to undermine the Crown case that the two witnesses were independent for the purpose of assessing the extent to which their accounts could support each other. 512Mr Lange submits that the affidavit of Houssam El-Jamal could be used to undermine the evidence of Khaled Taleb. He submits that evidence of a willingness to engage in what was apparently improper conduct (the provision of information to prospective witnesses) would be admissible to prove improper conduct not only on that occasion, but also on other occasions, particularly where the investigation is one and the same: R v Beattie [1996] 40 NSWLR 155 at 163. 513Mr Ramage QC submitted in writing that any evidence which casts further doubt on the credibility of the Hannouf brothers was important evidence for the defence to use at the Lawford Street shooting trial. Whilst acknowledging that the evidence of the Hannouf brothers was not directly admissible against the Appellant El-Zeyat, he submitted that it is highly likely that the jury took into account the evidence of Wahib Hannouf. In oral submissions, Mr Ramage QC acknowledged that his client's application concerning this trial involved what he described to be "a long bow" (T14.20, 22 March 2011). 514The Crown submits that, even if the evidence passed the first two tests (which the Crown said it did not), when evaluated in light of all the evidence at the trial, the affidavit of Houssam El-Jamal would not lead to the conclusion that there is a significant possibility that the jury, acting reasonably, would have acquitted either of these Appellants. 515With respect to the Appellant El-Zeyat's application, the Crown submits that, quite apart from issues of freshness, credibility and plausibility, the content of the affidavit at its highest relates to things allegedly said by Bassam Said, Wahib Hannouf and Haissam Hannouf. Bassam Said was not a Crown witness at this trial. The evidence of Wahib Hannouf and Haissam Hannouf did not form part of the Crown case against the Appellant El-Zeyat. Even if the first two questions could be answered favourably on this application, the third question must be answered in the negative.

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Decision 516Once again, the discretionary question for determination is whether leave ought be granted to rely upon the proposed grounds of appeal. 517In the course of assessing the applications based upon the affidavit of Fadi El-Jamal, I made a number of observations concerning the approach which this Court should take where an application such as this is made (see [467]-[473] above). Those comments apply equally to the application based upon the affidavit of Houssam El-Jamal. 518I turn firstly to the application by the Appellant El-Zeyat. As mentioned earlier (at [490]-[492]), the affidavit of Mr Nedim does not state that he was the solicitor for the Appellant El-Zeyat at the second trial. There is no evidence on the application from the Appellant El-Zeyat or his solicitor at the second trial which addresses issues pertinent to the claim that this is fresh evidence. Houssam El-Jamal does not state in the affidavit that he remained silent about the events alleged to have occurred in 2004. 519I am not persuaded that the affidavit of Houssam El-Jamal is fresh evidence. It would have been apparent to the Appellant El-Zeyat and his legal representatives, by the time of the trial in 2006 (at the latest), that there was great antagonism between the El-Jamal brothers and the Hannouf brothers. So much would have been clear, at the least, from the terms of the indemnities provided to the Hannouf brothers which referred to alleged offences committed against the El-Jamal brothers (see [138], [141]-[144], [151], [153] and [156] above). 520Likewise, the Appellant El-Zeyat and his legal representatives would have been aware of the stance taken by Fadi El-Jamal when giving evidence on the voir dire on 14 March 2006. There is simply no evidence as to what was considered and done (and not done) by the legal representatives for the Appellant El-Zeyat with respect to Houssam El-Jamal. 521Even if the Houssam El-Jamal material was demonstrated to be fresh evidence, I am not persuaded that it constitutes credible and plausible evidence in the circumstances of this case. The circumstances in which the affidavit came forward long after the trial, and after the appeal was heard, bears upon this assessment by the Court. The allegations contained in the affidavit of Houssam El-Jamal are disputed. The affidavit of Houssam El-Jamal has a number of disturbing features. At the time of these alleged conversations, he clearly had a strong dislike for Wahib and Haissam Hannouf. He alleged that they had committed serious offences against him in November 2003. He told police (in an induced statement made on 23 March 2004) that he was very angry with the Hannoufs and that he had committed a drive-by shooting on Haissam Hannouf's house in December 2003. In 2004, he clearly had a continuing strong dislike of the Hannoufs, so any allegation by him against them could be accurately described as biased. 522It seems improbable that, had Houssam El-Jamal heard the conversations over the prison wall as alleged in his affidavit, he would have remained quiet about these alleged statements from 2004 until after the trial in 2006, given the value of such material (if true) to attack the Hannouf brothers. That Houssam El-Jamal would stand back and allow the Hannoufs to obtain the benefits of the indemnities, which extended directly to charges of offences committed against him, is completely unexplained and is not credible. 523The Crown points as well to additional features of Houssam El-Jamal's affidavit which undermine its credibility and plausibility: (a) he said nothing about the alleged statements of the Hannouf brothers to the authorities, including his police handler in 2004, in circumstances where he had the opportunity to make a report, and had no reason to remain silent; (b) the Hannouf brothers were called by the Crown in the prosecution of Fadi El-Jamal for the murder of Mark Nichols and the defence sought to impugn their character, but it was not asserted that they had perverted the course of justice in the manner now asserted by Houssam El-Jamal. 524It has not been demonstrated that this material is credible or plausible for the purpose of the second question to be asked on an application to adduce fresh evidence. 525Even if this material was fresh and credible, there is no utility in the Appellant El-Zeyat being granted leave to rely upon it. Bassam Said was not a Crown witness in the present trial. Wahib Hannouf and Haissam Hannouf did not give evidence which incriminated the Appellant El-Zeyat. Accordingly, the affidavit of Houssam El-Jamal is irrelevant to the Crown case against the Appellant El-Zeyat. 526I would refuse him leave to rely upon Proposed Ground 8. 527I turn to the application by the Appellant Darwiche. 528There is no affidavit from the Appellant Darwiche or his legal representatives at the trial concerning knowledge, or lack of knowledge, with respect to Houssam El-Jamal's allegations as to what he heard over the prison walls in 2004. The application of the Appellant Darwiche faces the same fundamental problems as that of the Appellant El-Zeyat. 529Even if the freshness test was satisfied, it has not been demonstrated that the affidavit of Houssam El-Jamal is credible and plausible. The problems with respect to credibility and plausibility are manifest on an examination of the documentary material which bears upon the question (see [521]-[523] above). I have regard, as well, to the way in which this evidence has come forward, long after the trial and after the hearing of the appeal itself. 530If Houssam El-Jamal's affidavit had been available at the trial, defence counsel may have cross-examined Wahib and Haissam Hannouf concerning the statements allegedly made and overheard by Houssam El-Jamal in prison. It would have been open to counsel for the Appellant Darwiche to call Houssam El-Jamal as a witness at trial. This would have involved a witness with a clear bias against the Hannouf brothers being called to give uncorroborated evidence with respect to statements allegedly overheard in prison. One would expect trial counsel to pause before calling a witness such as Houssam El-Jamal at the trial, leaving his evidence (and cross-examination) as the last piece of evidence which the jury would hear in the trial. 531Even if this evidence had been available to the Appellant Darwiche at trial, when evaluated in light of all the evidence, it has not been demonstrated that the material would lead to the conclusion that there is a significant possibility that the jury, acting reasonably, would have acquitted him. 532In reaching this conclusion, I have also had regard to the submission that this evidence could have been utilised by trial counsel in accordance with R v Busby and R v Beattie . I am not persuaded that this evidence could assist at trial, in accordance with the principles considered in these cases. 533The Appellant Darwiche has not satisfied any of the three cumulative tests required on an application to rely upon fresh evidence. In my view, he should be refused leave to rely upon Proposed Ground 13.

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Conclusion 534None of the Appellants has made good any ground of appeal against conviction advanced at the hearing of the appeals in June-July 2010. 535The Appellants Darwiche and El-Zeyat have not demonstrated that leave ought be granted to either of them to rely upon the proposed grounds based upon suggested fresh evidence. In declining to grant leave, regard has been had to the lack of merit of the proposed grounds and the time and circumstances in which they came to be advanced before the Court. In reaching this conclusion, I have not overlooked the nature of the charges of which they were convicted and the sentences imposed. 536It is appropriate to observe that the law of this State, in the from of Part 7 of the Crimes (Appeal and Review) Act 2001 , permits a convicted person to make application to the Supreme Court for an inquiry into conviction upon the basis that a doubt or question as to guilt exists. These provisions are available in the event that there is said to be reliable material which gives rise to a doubt or question as to guilt. These provisions are available to the Appellants, as they are to all persons convicted of offences in this State.

[68]

Proposed Orders 537With respect to the Appellant Darwiche, I propose the following orders: (a) extend time for filing of a Notice of Appeal; (b) refuse leave to add Proposed Grounds 11, 12 and 13; (c) appeal against conviction dismissed. 538With respect to the Appellant Aouad, I propose that his appeal against conviction be dismissed. 539With respect to the Appellant El-Zeyat, I propose the following orders: (a) refuse leave to add Proposed Grounds 7 and 8; (b) appeal against conviction dismissed. 540With respect to the Appellant Osman, I propose the following orders: (a) extend time for filing of a Notice of Appeal; (b) appeal against conviction dismissed.

[69]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 April 2011

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