Regina v Abdul Darwiche

COUNSEL : John Pickering (Crown) John Doris (Accused)

SOLICITORS : S Kavanagh (Crown) Yazbek Lawyers (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT - Costs 1 BELL J: On 8 March 2006 following a trial that was conducted pursuant to s 132 of the Criminal Procedure Act 1986, I acquitted Abdul Darwiche of the charge that on 27 August 2003 at Condell Park he shot at Farouk Razzak with intent to murder. I acquitted him of the alternative count of maliciously discharging a loaded firearm with intent to do grievous bodily harm to Farouk Razzak. 2 On 30 May 2006 Mr Doris, who appeared on Abdul Darwiche's behalf, applied for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (the Act) relating to the proceedings.

3 Section 2 of the Act makes provision for the judge in any proceedings relating to any offence where the accused is acquitted to grant a certificate specifying the matters referred to in s 3. Section 3 is in these terms: (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings and, (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 4 Section 3A of the Act provides: (1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3(1)(a) to all the relevant facts is a reference to: (a) The relevant facts established in the proceedings, and (b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and (c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that: (i) Relate to evidence that was in the possession of the prosecutor at the time the decision to institute proceedings was made, and (ii) was not adduced in the proceedings. (2) Where, on the application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made might: (a) Order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts and (b) if the Court, Judge or Magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. (3) If, in response to an application for a certificate under section 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may: (a) Order that leave be given to the defendant to comment on the evidence of those relevant facts, and

(b) if the Court or Judge or Magistrate think it desirable to do so after taking into consideration any of those comments, order that leave be given to the defendant to examine any witness giving evidence for the prosecutor or that authorised person.

5 The Crown case was dependent upon the evidence of Farouk Razzak that he recognised the applicant as one of his assailants. In the applicant's submission, it had not been reasonable to institute the proceedings on the basis of this evidence which was to be assessed with caution: the opportunity to view the shooters was a fleeting one; made in circumstances that included that Farouk Razzak was looking from a lighted vantage point onto a darkened street (save that there was a street lamp on the corner of Yanderra Street and Fourth Avenue); the shooters were at a distance in excess of 20 metres from him and he was under considerable stress.

6 In the applicant's submission there were features of the evidence of Farouk Razzak that called into question his credibility. On the night of 27 August he denied to the police that he had been present at the time of the shooting. He first made a statement to the police describing his knowledge of the offence and nominating the applicant as one of his assailants on 15 September 2003. 7 There was evidence that in the immediate aftermath of the shooting Farouk Razzak nominated his assailants as the applicant and his brother, Adnan, to his wife, Nahla, and his daughter, Jomana. Later that night he said that he told his brothers, Hichem, Ahmed and Jamal that he had been shot at by the applicant and Adnan Darwiche. The applicant submitted that there were unsatisfactory features of this evidence including inconsistencies such that it could not be said to have materially supported an acceptance of Farouk Razzak.

8 Hichem Razzak made a statement to the police on 22 December 2003 in which he said that Farouk Razzak had told him, "the Darwiche's, they shoot at our place". He did not assert that his brother had identified the applicant. 9 Jamal Razzak made a statement on 11 September 2003 and he did not on that occasion assert that Farouk Razzak nominated the applicant as one of his assailants. 10 Rana Razzak in evidence at the committal hearing said she had not heard the things that her father had said in his discussion with her uncles on the evening of 27 August.

11 Nahla Razzak gave evidence that her husband had nominated the applicant and his brother Adnan as the shooters within minutes of the event. In the applicant's submission a consideration that weakened the evidence of Farouk and Nahla Razzak was that each maintained that they were the only adults present in the premises at 106 Yanderra Street at the time of the shooting.

12 In written submissions it was contended that there had been reason to suppose that firearms and/or drugs or drug money was hidden in the house and that one or more vehicles had departed from the premises immediately after the shooting, together with a number of adult male persons. The evidence of the neighbours, Jennifer Pine and Diane and Ronald Corry pointed to a greater number of adults being at the premises at the time of the shooting, and in its immediate aftermath, than Farouk or Nahla Razzak would allow. To my mind this does not provide a basis for the inference that firearms and/or drugs or drug money was hidden in the house. 13 The applicant submitted that there were additional factors that tended against the acceptance of the evidence of Farouk Razzak as a witness of truth. These included that his evidence of the location of the shooters was not supported by the evidence of Detective Snow and that his account of his injury and the damage to his shirt was inconsistent with the account that he gave to the police. 14 Farouk Razzak's account of the location of the shooters was that they were standing on the surface of Yanderra Street at the time of the shooting. I preferred the evidence of Detective Snow, an expert in ballistics, as to the likely location of the shooters. His opinion was based on the pattern of the fired cartridge cases that were recorded at the scene. The location marked by Detective Snow on the photogrammetry plan, as that representing the position of the two gunmen, gave Farouk Razzak a less direct view of the men than the position in which he indicated that they had been standing when he marked a copy of the same plan. This was a matter that I took into account in assessing the reliability of his evidence. I did not consider that it was a matter that bore on his credibility. Farouk Razzak's evidence was that he looked out towards the corner of Yanderra Street and Fourth Avenue and that he saw two men with rifles aimed in his direction. His account received support from Jennifer Pine both as to his location on the balcony and the general direction in which he was looking. 15 The applicant addressed submissions to the statement of Khaled Taleb that was taken between 6 and 17 February 2006. The statement had been served by the Crown in connection with the proceedings against Adnan Darwiche that were then pending. In Mr Doris' submission the contents of Khaled Taleb's statement relating to the Yanderra Street shooting were further relevant facts under s 3A(1)(b) and were to be taken into account in considering whether the Court was of the opinion specified in s 3(1)(a). Two features of the statement were identified as lending support to the submission that had the prosecution been in possession of all the relevant facts it would not have been reasonable to institute the proceedings. The admission that Adnan Darwiche is said to have made includes that Ziad Razzak ran out onto the balcony of the premises with a gun. In Mr Doris' submission this admission provided further support for an acceptance of the evidence of Jennifer Pine that there was more than one adult on the balcony at the time of the shooting. The second respect in which the statement of Khaled Taleb was said to weaken the prosecution case was that he gave an account that on 27 August 2003 Adnan Darwiche did not have a beard: whereas Farouk Razzak had described Adnan Darwiche as having a beard and a moustache.

16 The statement of Khaled Taleb included the assertion that the applicant was present at a discussion prior to the Yanderra Street shooting when Adnan Darwiche said that Ramzi Aouad was to drive past the premises and shoot at the house and that when the occupants came outside he and the applicant would blast them with the SKS's (paragraph [185]). The applicant is also said to have been present on the occasion after the shooting when Adnan Darwiche described how he and the applicant had fired at Ziad and Farouk Razzak and missed them (paragraph [189]). The latter may be thought to be capable of constituting an admission by silence by the applicant.

17 The admission that Ziad Razzak was on the verandah with Farouk Razzak when Adnan Darwiche and the applicant opened fire on both of them is not a matter that lends weight to the conclusion that had the prosecution been in possession of all of the relevant facts it would not have been reasonable to institute the proceedings. In my opinion the evidence of Khaled Taleb if given in conformity with his statement would have strengthened the prosecution case. I did not consider that it afforded support to the application. I raised this view with Mr Doris in the course of oral submissions. He did not develop his submission further with respect to it. In the way the application was conducted I was not invited by the Crown to approach its determination on the basis that the relevant facts included the statement of Khaled Taleb.

18 I thus deal with the application on the basis of the relevant facts as they were known at the trial.

19 In Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 559 - 560 the Court observed: As we read s 3(1)(a) the task of the court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question … that question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the Act. All of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker. The decision-maker must then ask whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings. 20 In R v Manley [2000] NSWCCA 196; 112 A Crim R 570, Wood CJ at CL said this (at 573): It seems to me that the section calls for an objective analysis of the whole of the relevant evidence and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case. Matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be judge or jury. 21 At the trial an issue concerned whether Farouk Razzak had been at the premises at 106 Yanderra Street at the time of the shooting. I was satisfied beyond reasonable doubt that he was. A challenge was mounted to his ability to recognise Abdul Darwiche. I considered the challenge to be without substance. Farouk Razzak had known the applicant since around 1991 when his cousin, Ali Abdul Razzak, married the applicant's sister, Khadijie Darwiche. Farouk Razzak attended the weddings of Adnan and Abdul Darwiche and other family functions at which both the applicant and his brother were present. I was satisfied that Farouk Razzak was familiar with the appearance of the applicant and of his brother, Adnan.

22 Farouk Razzak's explanation for his failure to nominate the applicant and his brother as the shooters prior to 15 September 2003 was a matter that required assessment by the trier of fact. It was not inherently improbable. I did not consider that Farouk Razzak was a witness who was demonstrably lacking in credit: cf R v Dunne (unreported) Hunt J, 17 May 1990 at 5-6. 23 This was a case in which the victim of a serious offence of violence purported to recognise his assailants. Given the difficult circumstances in which he found himself, the reliability of his identification was always going to be a critical issue. It was an issue that was properly to be determined by the tribunal of fact. I am not of the opinion that had the prosecution been in possession of all of the relevant facts as they were known at trial that it would not have been reasonable to institute the proceedings. 24 For these reasons I decline to issue a certificate under s 2 of the Act. *******

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