Regina v Abdul Darwiche

CATCHWORDS : Indictment - joinder application

Crimes Act 1900 LEGISLATION CITED : Criminal Procedure Act 1986 Evidence Act 1995

R v AH (1997) 42 NSWLR 702 R v Basha (1989) 39 A Crim R 337 R v Ellis [2003] NSWCCA 319; 144 A Crim R 1 CASES CITED : R v Frawley (1993) 69 A Crim R 208 R v Lock (1997) 91 A Crim R 356 R v Lockyer (1996) 89 A Crim R 457 Wilson v R (1970) 123 CLR 334

PARTIES : Regina Abdul Darwiche (Accused)

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

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

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

JUDGMENT - Re: Joinder application 1 BELL J: On 5 August 2005 the accused was arraigned on an indictment that charged him with shooting at Farouk Razzak with intent to murder him. The offence is alleged to have occurred on 27 August 2003 in Condell Park (the Condell Park offence). The accused was jointly charged with his brother Adnan Darwiche in respect of the Condell Park offence. The indictment contained a further nine counts charging Adnan Darwiche and three other persons with offences, which were said to arise out of the same connected set of circumstances. The accused pleaded that he was not guilty of the offence. 2 On 9 December 2005 I directed that the trial of the accused proceed separately to the trial of Adnan Darwiche in respect of the Condell Park offence and separately from the trial of Adnan Darwiche and the three other accused with respect to the offences charged against them in counts two to 10. The accused's trial was fixed for hearing on Monday 13 February 2006.

3 By notice, dated 25 January 2006, the Director of Public Prosecutions (the Director) informed the accused of his intention to file an ex officio indictment charging him with shooting at Bilal Razzak with intent to murder him. This offence is alleged to have occurred on 17 June 2001 in a unit in Sir Joseph Banks Street, Bankstown (the Bankstown offence). In the alternative the accused is charged with maliciously discharging a loaded firearm with intent to do grievous bodily harm to Bilal Razzak, an offence provided by s 33A of the Crimes Act 1900. The accused was arraigned on an indictment charging him with the Bankstown offence (and in the alternative with the offence under s 33A) before Barr J on 3 February 2006. He entered pleas of not guilty to each count. He was remanded for trial to Monday 13 February 2006. 4 On 2 February 2006 the accused's solicitors filed a notice of motion claiming orders: 1. That the proposed indictment be severed to the extent that the counts alleging offences against Bilal Razzak be tried together but separately from the count alleging an offence against Farouk Razzak. 2. That the evidence of identification of Abdul Darwiche by Farouk Razzak at Yanderra Street on 27 August 2003 be excluded. 3. That, there having been no committal proceedings relative to the alleged offences against Bilal Razzak, leave be granted to cross-examine certain witnesses in the absence of the jury by way of a "Basha" inquiry. 5 At the commencement of proceedings on 13 February the Crown Prosecutor handed up a draft indictment charging the accused with the Bankstown offence (and the alternative offence under s 33A) and the Condell Park offence together with an alternative count charging him with discharging a firearm at Farouk Razzak with intent to do grievous bodily harm. The Crown sought leave pursuant to s 20 of the Criminal Procedure Act 1986 to substitute the draft indictment for that upon which the accused had been arraigned on 5 August 2005. 6 In these reasons I deal with the application for leave to substitute an indictment joining the charges relating to the Bankstown offence and adding an alternative count in respect of the Condell Park offence. The application is opposed by the accused. 7 I will deal firstly with the issues raised by the application insofar as it is sought to join the counts relating to the Bankstown offence. The basis on which joinder is sought is that the Crown proposes to lead evidence of the Bankstown offence in its case with respect to the Condell Park offence. In these circumstances the Crown submits that joinder is convenient and does not occasion prejudice to the accused. Any difficulty occasioned by the circumstance that the accused has not been committed for trial on any charge arising out of the Bankstown offence was said to be able to be cured by permitting the accused to cross-examine certain witnesses prior to the jury being empanelled: R v Basha (1989) 39 A Crim R 337. 8 In the event that the evidence of the Bankstown offence was held to be inadmissible in the Crown's case on the Condell Park offence the Crown Prosecutor did not submit that leave to join the earlier offences should nonetheless be granted. 9 The principal way in which the Crown submits that the evidence of the Bankstown offence is admissible in its case on the Condell Park offence is because it is in the nature of relationship evidence and is said to provide the necessary context to enable the jury to understand the evidence of Farouk Razzak concerning circumstances surrounding the Condell Park offence. The Crown also contend that the evidence of the Bankstown offence is admissible as tendency evidence under s 97 of the Evidence Act 1995 at the trial of the Condell Park offence. 10 I will refer to the evidence of background facts and circumstances that the Crown Prosecutor outlined as relevant in order to put the Condell Park offence in its context. I will also refer to the evidence available to the Crown in support of its case against the accused for the Bankstown offence and the Condell Park offence before turning to a consideration of the principles upon which evidence of the commission of the former might be received in order to prove the commission of the latter. 11 The Crown seeks to lead evidence of relations between members of the Darwiche and Razzak families dating back to 2001 in its case in respect of the Bankstown and Condell Park offences. The starting point is an incident involving one of the accused's brothers, Mohammed Ali Darwiche, who is alleged to have attacked Bilal Razzak when he was in a car. In response to this attack Bilal Razzak is alleged to have gone to the Darwiche family home (at which the accused and his brother, Adnan, were living) and to have fired shots at it. Thereafter shots were fired at the unit premises in Sir Joseph Banks Street, Bankstown at which Bilal Razzak and members of his family were residing. The inference being that this incident was a reprisal carried out by members of the Darwiche family. 12 Following these events Farouk Razzak is alleged to have endeavoured to settle the dispute between his nephew, Bilal, and "the Darwiche boys" by arranging a meeting between the two at the home of his relative, Ali Abdul Razzak. Ali Abdul Razzak was married to the accused's sister, Kay Darwiche. The meeting is said to have been attended by Farouk Razzak, Bilal Razzak, Jamal Razzak (Bilal's father) and Ali Abdul Razzak together with the accused, Adnan, their father and other members of the Darwiche family. It is alleged that in the course of the meeting Adnan Darwiche insisted that Bilal Razzak leave the country. It is also alleged that the accused said, "fuck you Razzaks, I kill all of you". It was at this point that the Darwiche family are said to have left (Statement Farouk (Frank) Razzak dated 15 September, 2003, at paragraph 8). 13 After the meeting it appears that Bilal left the country for a time. On his return the Crown allege that he was shot in the bedroom of the family unit in Sir Joseph Banks Street by two men wearing balaclavas or masks, each of whom was armed with a firearm (the Bankstown offence). The accused's liability for the Bankstown offence is alleged to be as a principal in the second degree. He is said to have been present outside the unit acting as a lookout, holding a rifle or machine gun. The only evidence to connect the accused to the offence is contained in the statement of Jamal Razzak. He gives an account that he was standing in the courtyard area at the front of the units talking to his neighbour when he heard six or seven gunshots. He looked around and saw the accused standing near the garbage bin area of the units holding a rifle or machine gun (Jamal Razzak Statement 17 June, 2001, paragraphs 6 and 7). Shortly after making this observation Jamal Razzak saw two men dressed in black, with balaclavas over their heads, coming out of the hallway at the front of the units. Each was holding a handgun. He identified the first man as looking like Adnan Darwiche because he was of the same build as Adnan (paragraph 9).

14 Jamal Razzak says that he knows the accused and his family. He had last seen the accused and Adnan about four months prior to the incident. He says that the accused was looking at him at the time he made his observation of him outside the units. I am informed that at the committal hearing Jamal Razzak estimated that he had the accused under observation for a period in the order of 15 seconds.

15 The Crown contend that after the shooting of Bilal Razzak a further peace arrangement was struck between the Darwiche and Razzak families and that Adnan Darwiche went overseas for a time. While he was overseas one of his associates named Khaleb Taleb was shot in Chapel Road, Bankstown. This incident is alleged to have prompted Adnan to return home and for hostilities between the two families to resume. The Condell Park offence took place after the resumption of hostilities. On the Crown case the motive for shooting Farouk Razzak was simply that he was a member of the Razzak family. 16 On 27 August 2003 Farouk Razzak is alleged to have been at his nephew, Samar Razzak's home in Yanderra Street, Condell Park. It is alleged that he heard a noise outside the premises and that he went to investigate it. He stepped outside the front door and saw a shadow. He moved forward and saw the accused and Adnan Darwiche, illuminated by a streetlight, holding high-powered guns. On the Crown case some 54 rounds of ammunition were fired by the two men towards Farouk Razzak. He was not hit.

17 Police attended the scene in Yanderra Street on the evening of the shooting. Farouk Razzak was interviewed by police officers and he gave an account that he had not been present at the time of the incident. On 29 August Farouk Razzak's brother, Ali Abdul Razzak, was shot and killed outside the mosque in Lakemba. In the immediate aftermath of this event, Farouk Razzak took over the care of Ali Abdul Razzak's children. On 15 September 2003 the children were returned to the care of their mother, Kay Darwiche. On that day Farouk Razzak provided the police with a statement in which he said that the shots had been fired at him and he nominated Adnan Darwiche and the accused as the two shooters.

18 The Crown case against the accused with respect to the Condell Park offence is substantially dependent upon an acceptance of Farouk Razzak's evidence that he recognised the accused as one of his two assailants. 19 I now turn to a consideration of the principles with respect to the admission of evidence of "relationship". Evidence of the relationship between an accused and the alleged victim of a crime may be admitted in order to put the facts relied upon by the Crown in a context. Thus, in Wilson v R (1970) 123 CLR 334 Menzies J at 344 observed: To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.

In Wilson the issue was whether the discharge of the firearm was deliberate. 20 The relationship identified by the Crown in support of the present application is that which existed between members of the Darwiche family, including the accused, and members of the Razzak family. The Crown seeks to establish that members of the Darwiche family, including this accused, entertained feelings of hostility towards members of the Razzak family in the context of a longstanding and violent dispute between the two. In R v Frawley (1993) 69 A Crim R 208 at 233, Gleeson CJ cautioned against considering "relationship" evidence in terms of generality, emphasising the need to analyse the proposed evidence to determine whether it constitutes direct evidence of any fact relevant to a fact in issue. 21 Evidence that the accused was present at a meeting with Farouk Razzak, Bilal Razzak and other members of the Razzak family at which it was proposed to settle differences that had arisen between the two families and at which the accused said words to the effect that he was going to kill all members of the Razzak family seems to me to be evidence admissible in support of the Crown case, both with respect to the Bankstown offence and the Condell Park offence. This is because evidence that the accused expressed such an intention, in the context of ill will between him and members of the Razzak family, is capable in each case of rationally affecting the assessment of the probability of the fact in issue, namely, the identification of the accused as one of the shooter's in the Condell Park offence and as the look-out in the Bankstown offence.

22 There is no occasion to lead evidence of the accused's involvement in the shooting of Bilal Razzak in order to avoid the jury being required to determine the facts in issue with respect to the shooting at Farouk Razzak in a vacuum. Evidence of the accused's alleged role in the shooting of Bilal Razzak in June 2001 does not illuminate the relationship between the accused and Farouk Razzak in a way that is relevant to any fact in issue in respect of the Condell Park offence. The circumstance that members of the Darwiche family entertained hostility towards members of Razzak family does not to my mind assist in determining that this accused was one of the two shooters involved in the attack on Farouk Razzak. 23 One of the bases on which the Crown pressed for the admission of the evidence of the accused's involvement in the shooting of Bilal Razzak was that it would enable the jury to assess the evidence of Farouk Razzak, which includes his initial denial that he was the victim of the offence and that the circumstance that he only came forward with his complaint after the killing of Ali Abdul Razzak. In the Crown's submission it was open to it to prove the history of violence between the Darwiche and Razzak familles, including the shooting of Bilal Razzak, since it was capable of explaining Farouk Razzak's asserted fear of nominating the accused and Adnan Darwiche as having shot at him. A person may well respond to being shot at repeatedly by two men using high powered weapons with a reaction of fear and panic. I am not persuaded that it is open to the Crown to prove that the accused had committed a violent offence against another member of the Razzak family two years and two months before the subject shooting in order that the jury might assess Farouk Razzak's evidence in its proper context. The risk that the jury would reason that the Crown case on the Condell Park count was proved because the accused was a person with a propensity to shoot people seems to me to be high. 24 The Crown served a notice pursuant to s 97 of the Evidence Act dated 22 December 2005. By that notice the Director indicated the present intention of the prosecution to adduce evidence of tendency, at the accused's trial with respect to the offence of shooting with intent to murder Farouk Razzak. The notice does not identify the tendency either to act in a particular way or to have a particular state of mind, which the Crown proposes to establish. It does identify, by reference to a number of statements in the Crown brief, the material that is proposed to be led. In the course of oral submissions the Crown identified the particular tendencies that it is sought to establish as follows: To possess firearms; To attack members of the Razzak family; To shoot people in public areas. 25 Evidence of the conduct of a person or a tendency that a person has or had is not admissible to prove that the person has or had the tendency if the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the parties seeking to adduce the evidence, have significant probative value. If the court is persuaded that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value it is necessary in a criminal proceeding where it is evidence that is adduced by the prosecution to consider the provisions of s 101(2) which provides that such evidence cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have upon him. 26 Probative value means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. The fact in issue is whether the Crown has established that the accused was one of the two persons who shot at Farouk Razzak on 27 August. 27 In forming a judgment as to whether the evidence that the accused was a party to the shooting of Bilal Razzak on 17 June 2001 would, having regard to other evidence to be adduce by the Crown, have significant probative value, it is to be borne in mind that the evidence is in dispute. Proof of the accused's commission of the Bankstown offence turns on satisfaction of the reliability of a single witness as to identification. While it may be that evidence which is in dispute may, when taken with other evidence, possess the quality of significant probative value for the purpose of s 97, I am not persuaded that this is such a case. 28 Proof that the accused was in possession of a firearm on an occasion two years and two months before the subject offence does not to my mind establish a tendency to possess firearms. Even if it did have the capacity to establish that tendency it would still be necessary to consider whether proof of the tendency had significant probative value for the purposes of s 97. In the circumstances of this case the tendency to possess firearms, not being the same firearm as that use by the assailants in the Condell Park offence, to my mind does not have significant probative value. 29 Proof that the accused was criminally complicit in the shooting of Bilal Razzak in that he acted as a lookout while his co-offenders shot Bilal Razzak in the bedroom of his home does not seem to me capable of establishing a tendency to shoot people in public areas. 30 Proof that the accused was criminally complicit in the shooting at Bilal Razzak, taken with the statement said to have been made at the meeting "I'll kill all Razzaks" may, with the evidence to be adduced of the identification by Farouk Razzak (that the accused was one of his assailants) establish a tendency to attack members of the Razzak family. However, I return to the circumstance that the evidence of the accused's involvement in the Bankstown offence is disputed. "Significant" in the context of the threshold posed by s 97 means of consequence or importance: R v Lockyer (1996) 89 A Crim R 459 at 459; R v Lock (1997) 91 A Crim R 356; R v AH (1997) 42 NSWLR 702. The challenged evidence of Jamal Razzak that he identified the accused as present with a rifle or machine gun acting as a look-out in June 2001 when Bilal Razzak was shot, when taken with the evidence to be adduced in support of the Crown case on the Condell Park offence does not impress me as being possessed of significant probative value. If I am wrong in coming to this conclusion I would, in any event, hold that the evidence of the Bankstown offence could not be used against the accused to establish the tendencies to act in the way the Crown particularises. Section 101(2) requires the court to balance the probative value of the evidence against any prejudicial effect it may have on the accused and to determine that the probative value substantially outweighs any prejudicial effect the evidence may have upon the accused: R v Ellis [2003] NSWCCA 319; 144 A Crim R 1 per Spigelman CJ at 19. 31 In the context of a case in which the Crown in written submissions has referred to a history of "tit for tat" shootings between members of the Darwiche family and their associates and members of the Razzak family and their associates, the capacity of evidence that the accused was involved in the shooting of Bilal Razzak in June 2001 to rationally affect the assessment of the probability of him being one of the shooters in August 2003 in the Condell Park offence is, in my view, not great. The probative value of the evidence of the accused's involvement in the Bankstown offence is as I have observed lessened by reason that it is in issue. I do not consider the probative value to substantially outweigh any prejudicial effect that the admission of the evidence may have on the accused. One prejudicial effect that I identify is that at a joint trial of the Bankstown and Condell Park offences each of the disputed identifications (made by a single member of the Razzak family) may gain strength from the fact of the identification made in the other case. This would involve an impermissible process of reasoning but one that I consider a jury would be likely to engage in. 32 I am not of the opinion that the evidence of the Bankstown offence is admissible in the Crown case in support of the count charging the Condell Park offence. In light of the Crown's concession, this disposes of the application that I grant leave to substitute an indictment charging the accused with both offences. 33 The Crown seeks to substitute an indictment charging the accused in addition to the count of shooting at Farouk Razzak with intent to murder (an offence provided by s 29 of the Crimes Act) with an alternative count of maliciously discharging a loaded firearm with intent to do grievous bodily harm to Farouk Razzak (an offence provided by s 33A of the Crimes Act). The accused does not consent to the leave sought. Mr Doris acknowledged that he suffers no prejudice in the conduct of the accused's case by reason of the grant of the leave. The Crown seeks to rely on an alternative count in the event that the jury are satisfied beyond reasonable doubt that the accused was one of the shooters, but is not satisfied of proof of the specific intent for the offence charged under s 29. I consider the Crown's application to be a reasonable one and that leave should be granted. ORDERS

1. Leave is granted to the Crown to substitute an indictment charging the accused in the alternative with a count of discharging a loaded firearm with intent to do grievous bodily harm to Farouk Razzak on 27 August 2003 at Condell Park.

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