8 At the conclusion of the argument I granted the Crown leave to substitute the indictment charging the accused with encouraging Nasaem El Zeyat and Ramzi Aouad to murder Ahmed Fadha; together with counts against Ramzi Aouad and Nasaem El Zeyat charging the murder of Ahmed Fadha and the count charging the accused with being an accessory after the fact to the murder of Ahmed Fadha by Nasaem El Zeyat and Ramzi Aouad for the indictment upon which each had been earlier arraigned. These are my reasons for that ruling.
9 Mr Doris did not contend that counts charging his client with the s 26 offence and with being an accessory after the fact to the murder of Ahmed Fadha were not properly joined in an indictment charging Ramzi Aouad and Nasaem El Zeyat with the murder of Ahmed Fadha. It was not submitted that the substitution of a count under s 26 of encouraging murder (as distinct from soliciting to murder) had occasioned any prejudice to the accused. Central to Mr Doris' application is that evidence admissible in the Crown case on the count of murder may prejudice the accused.
10 The accused was the subject of police surveillance, unconnected to the murder of Ahmed Fadha, in the period prior to the killing. The Crown proposes to lead surveillance evidence obtained from this operation to establish that Ramzi Aouad and Nasaem El Zeyat had access to a Holden Commodore motor vehicle, which was observed by an eyewitness to have been used by the two shooters at the time of the killing. Surveillance photographs show the accused in this vehicle on 17 October 2003. There is further surveillance material linking the accused, Ramzi Aouad and Naseam El Zeyat to the vehicle in the period between 17 October and the date of the shooting. It is accepted that this material is indicative of the accused having been the subject of intense police surveillance in the two weeks prior to the shooting.
11 The Crown proposes to adduce surveillance photographs taken by the police of the accused, Naseam El Zeyat and Ramzi Aouad at Menai at around 6:00 pm on the evening of 30 October. These photographs were taken within hours of the shooting. Mr Doris acknowledges that the post-shooting surveillance evidence is admissible against his client in relation to the offence charged in count 3.
12 The Crown case against the accused in support of each of the counts is dependent upon the evidence of an indemnified witness, Mr X. Mr Doris' concern is that the evidence of the police surveillance of the accused prior to the shooting may prejudice him because the jury will infer that he was suspected by the police of involvement in some form of criminal activity. Mr Doris acknowledged that the circumstance that the police were in possession of surveillance photographs of the accused taken a matter of hours after the killing might be susceptible of the same inference. Nonetheless, in his submission, the potential for prejudice is greater should the jury be exposed to the pre-shooting surveillance evidence.
13 Mr Doris relied on the statement of the principles governing the circumstances in which separate trials may be ordered set out in R v Middis (unreported), NSWSC, Hunt J, 27 March 1991:
(1) Where the evidence against an applicant for a separate is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and
(2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and
(3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.