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R v El-Zeyat; R v Aouad [2015] NSWSC 63 (13 February 2015)

Last Updated: 7 April 2016

JUDGMENT

1. R A HULME J: This is an application for costs pursuant to the Costs in Criminal Cases Act 1967 (NSW).
2. The applicants were tried before Bell J and a jury in 2006 and found guilty of the murder of Ahmed Fahda. They appealed against their convictions which were quashed and a new trial was ordered: Aouad and El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411. (There is some inconsistency in published judgments in the way El-Zeyat’s name is spelt. I have opted to adopt the spelling used on the indictment.)
3. The decision of the Court of Criminal Appeal was handed down on 8 April 2011. In October-November 2011 the applicants were arraigned and pleaded not guilty. The matter was stood over for trial but on 30 May 2012 the Director of Public Prosecutions directed that no further proceedings be taken. When the decision of the Director was announced at an arraignment list hearing on 1 June 2012 the applicants indicated that they wished to make an application for costs.
4. The hearing and determination of the application for costs has been substantially delayed, partly because of an issue about whether the reasons of the Director for determining that no further proceedings be taken was privileged. Ultimately the Director’s privilege was upheld: El-Zayet v Director of Public Prosecutions [2014] NSWCCA 298.
5. At the commencement of the hearing before me on 6 February 2015, counsel for Mr El-Zeyat applied for the hearing of the application to be adjourned. The basis of the application was that the Legal Aid NSW had been requested to fund the provision of advice from senior counsel as to whether there was merit to pursue an application for special leave to appeal to the High Court in respect of the judgment of the Court of Criminal Appeal last December. Mr McLachlan of counsel was unable to indicate whether any particular error was suspected to be found in the judgment but simply indicated that the advice of senior counsel was being sought. It seemed to me that with the lengthy delay already experienced in the determination of this application for costs, to adjourn and thereby delay it any further on such a speculative basis was not warranted. Accordingly the adjournment was refused.

Nature of the application

6. The Costs in Criminal Cases Act provides in s 2 that a certificate may be granted under the Act where, inter alia, a direction is given by the Director of Public Prosecutions that no further proceedings be taken in a criminal case. It is necessary for such a certificate to specify that in the opinion of the court it would not have been reasonable to institute the proceedings if the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, and 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: s 3
7. In this case the focus was on the first of those two matters, in s 3(1)(a), there being no suggestion that any act or omission of either of the applicants had anything to do with the institution or continuation of the proceedings.
8. In the event that the conditions in s 3 are established, it is then a matter for the court’s discretion as to whether to grant a certificate.
9. The phrase, “before the proceedings were instituted” has been held to be a reference to the time when the criminal justice system was put into motion, not the time when a trial is commence: Allerton v DPP (1991) 24 NSWLR 550 at 557B-558C.

Overview of the case

10. The applicants’ convictions were for the murder of Ahmed Fahda at Punchbowl on 30 October 2003. They were tried together with Adnan Darwiche, who was charged with being both an accessory before the fact and an accessory after the fact to the murder, but was acquitted.
11. James J, with whom McClellan CJ at CL and Johnson J agreed, provided the following overview of the case:

[3] At the trial the Crown case, very broadly stated, was that shortly after two o'clock in the afternoon of 30 October 2003 the deceased had been a passenger in a Pajero 4-wheel drive vehicle ("the Pajero") driven by a man named Bassam Said, which was travelling in Punchbowl Road, Punchbowl. The Pajero ran out of petrol and Ahmed Fahda and Bassam Said pushed the Pajero into a service station on Punchbowl Road near the intersection with Dudley Street. Both men got out of the Pajero.
[4] Another vehicle, a Commodore, stopped near the service station. Two men armed with pistols ("the shooters" or "the gunmen") got out of the Commodore. They walked past the deceased, who was looking into the bonnet of the Pajero and, from close range, fired a large number of shots into the deceased's body, killing him. The gunmen then ran from the service station and boarded the Commodore which had been driven into Dudley Street. The Commodore then drove off.
[5] The issue at the trial, so far as the appellants were concerned, was whether the Crown could prove that the two appellants were the gunmen. The Crown case at the trial depended heavily on the evidence of the witnesses Bassam Said, Wahib Hannouf, Haissam Hannouf and Tony Haddad. Apart from the evidence of these witnesses, there was evidence from a number of witnesses who had witnessed the shooting but who could not identify either of the gunmen, some limited formal admissions by the appellants and some pieces of circumstantial evidence.

The reasoning of the Court of Criminal Appeal

12. There were multiple grounds of appeal relied upon by each of the applicants but their only success was in relation to a conversation had between Bassam Said and Sheikh Taj Eldeen Alhilali on about 8 July 2004, some 8 months after the murder. It was a conversation at a gaol in the presence of a police officer. Its occurrence did not become known to the applicants and the prosecuting authority until after judgment had been reserved in the Court of Criminal Appeal. Evidence of and relating to it was admitted on the appeal.
13. The effect of the conversation was that Bassam Said said that he was unable to identify either of the two shooters, contrary to both a statement he signed shortly afterwards and to his evidence at the trial that they were the applicants.
14. The Crown endeavoured to persuade the Court of Criminal Appeal that there was so much evidence about the bad character of Bassam Said and so much material reflecting adversely upon his credibility that this further evidence would not have made any material difference. However, James J whilst acknowledging the force of the Crown’s submission, took a different view as to the potential impact the fresh evidence might have had at the trial. He said in part:

[351] I have nevertheless concluded that, if evidence about the conversation on 8 July 2004 had been before the jury, the jury would have been likely to have entertained a reasonable doubt about the guilt of the appellants or, alternatively, there is a significant possibility that the jury might have acquitted the appellants.
...
[354] In my opinion, if the fresh evidence had been available at the trial and had been used in the cross-examination of Bassam Said, a further serious blow would have been dealt to Bassam Said's credibility.
...
[367] Although Bassam Said's credibility was challenged on a number of grounds at the trial, the further evidence, if it had been available at the trial, would have dealt a serious blow to his credibility. Bassam Said's evidence was important for the reasons given by counsel for the appellants. In my opinion, it cannot be said, if the test in Wilde and Grey is applied, that the appellants did not lose a chance of acquittal as a result of the investigator's note not having been disclosed. Alternatively I consider that the failure to disclose the note involved a significant denial of procedural fairness.

15. The Court of Criminal Appeal was required, of course, to look at the potential impact the fresh evidence might have had if it had been available at the trial.
16. The fresh evidence adduced at the appeal amounts to further material that must be considered, along with all of the evidence adduced at the trial, in considering the key question in this application: whether, if the prosecution had been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings.

Submissions

17. Mr Aouad only seeks a certificate in respect of costs arising after the quashing of his conviction whereas Mr El-Zeyat seeks a certificate in respect of the entire proceedings.
18. Mr McLachlan, on behalf of the applicant El-Zeyat, submitted that in light of the Court of Criminal Appeal’s finding in relation to the impact of the fresh evidence upon the credibility of the evidence of Bassam Said, it followed that if the Crown had been aware of that further evidence, it would have been unreasonable to have instituted the proceedings.
19. Ms Carroll, on behalf of the applicant Aouad, submitted that the fact that the proceedings were terminated by the Director in itself was sufficient to satisfy the matter in s 3(1)(a). In other words, terminating the proceedings indicated that they were not reasonably instituted in the first place. But the latter does not necessarily follow the former. This submission must be rejected. Such a decision may be based upon a wide variety of reasons and not necessarily upon a consideration of the accuracy, reliability, credibility or sufficiency of the evidence in the case. It was also suggested that if the termination decision was based upon reasons not concerned with the sufficiency and reliability of the evidence then counsel for the respondent would be able to inform the Court. That submission must also be rejected once regard is had to the applicant bearing the onus of proof.
20. Ms Carroll relied upon the submissions that were made by Mr McLachlan in relation to the unreliability of the evidence of Bassam Said. She alluded to a question about the reliability of the evidence of the other witnesses who identified the applicants as being the shooters, Wahib Hannouf and Haissam Hannouf. Mention was also made of a draft witness list, provided by the Crown prior to what was going to be the retrial, in which one of the witnesses it had called in the first trial, Tony Haddad, was omitted. There was no elaboration of the significance of this but I assume it had something to do with what was said during the subsequent submissions by Mr Pickering SC on behalf of the Crown concerning Mr Haddad.
21. Mr Pickering first pointed out that the Crown opened its case to the jury without any mention of the evidence of Bassam Said at all. In other words, the Crown was, in effect, contending at trial that it had a viable case without it. It was explained that this was because there was a very real doubt about his availability. He had refused to continue giving evidence at the committal hearing because, he complained, his house had been shot at. There was evidence that at around the commencement of the trial he had been the victim of a kidnapping. He only came to be called after he had been shot and presented at a hospital some three weeks into the trial. Bell J issued a warrant for his arrest and he was remanded in custody until he had completed giving evidence.
22. Mr Pickering also pointed out that Bassam Said’s claim that he did not know who the shooters were was not solely made in a conversation with Sheikh Taj Eldeen Alhilali. He had said so in his first statement, in evidence before the Crime Commission and in evidence at a Basha inquiry after he was brought before Bell J.
23. In the light of these matters there was a question as to why the Crown called Bassam Said at all. Mr Pickering explained that it would have been impractical for the Crown not to have called him, given he was the most obvious material witness, having been directly in the company of Ahmed Fahda when he was shot.
24. It was submitted, in effect, that the most practical way of assessing the merits of the present application was to look at the other evidence that was available to the Crown. It was unnecessary to determine whether the evidence of Bassam Said had any credibility; it could be assumed for present purposes that it did not and that it was worthless. That in itself does not mean that it was unreasonable for the Crown to have instituted the proceedings if there was otherwise a viable case.
25. The Crown tendered a printout of email communications between the applicant El-Zeyat’s solicitor and the Office of the Director of Public Prosecutions on 16 January 2012. This was, of course, whilst the retrial was pending. The applicant’s solicitor indicated that he had instructions from his client as to his preparedness to plead guilty to a charge of accessory before and/or after the fact to murder. Mr Pickering submitted that such an offer was inconsistent with the current claim that it was unreasonable for proceedings to have been instituted against El-Zeyat.
26. Mr Pickering identified these email communications as being “without prejudice”. In these circumstances I am doubtful it is appropriate for them to be taken into account; and in any event, do not believe that it is necessary to do so in the light of my ultimate determination of the matter.

The evidence available to the Crown aside from that of Bassam Said

27. Admissions pursuant to s 184 of the Evidence Act 1995 (NSW) were made at the trial by each of the applicants (and by the co-accused, Adnan Darwiche). Mr Pickering indicated that this obviated the need for evidence to go to the jury about the accused having been under physical and electronic surveillance in the period preceding the murder in relation to other suspected criminal activity.
28. It was admitted that the two applicants as well as Adnan Darwiche were acquainted with, and associated with, each other, including frequently telephoning each other.
29. It was the Crown case, based upon eye-witness accounts, that the shooters were driven to and from the scene of the shooting in a particular Holden Commodore. There was an admission that Adnan Darwiche was involved in arranging the sale of that car on 15-16 October 2003 by its owner to Mohammed Touma (the person the Crown alleged was the getaway car driver). Other evidence revealed that it was registered with a false name and address. On 17 October 2003, Adnan Darwiche arranged with the applicant Aouad and Mohammed Touma for the windows of the Commodore to be tinted.
30. There were admissions that Adnan Darwiche and Ramzi Aouad were occupants as either driver or passenger of the Commodore on various occasions on each of 16, 17, 18 and 19 October 2003. These included an occasion on 17 October when Adnan Darwiche drove it to and from the home of Naseam El-Zeyat. On 29 October 2003 the Commodore was parked outside the home of Ahmad Awad. Darwiche and Aouad visited Mr Awad whilst it was there.
31. There was evidence that someone set fire to the Commodore in Sellers Lane, Greenacre at about 8.00pm on the evening of the murder.
32. The murder occurred at about 2.12pm on 30 October 2003 just after Bassam Said and the deceased had pushed the car they were in into a service station. There was evidence of numerous telephone contacts on that day between the applicants and Darwiche (and El-Zeyat was also in telephone contact with Bassam Said). The applicant El-Zeyat called Said at 2.00pm (a 20 second call from the Bankstown South area) and at 2.10pm (a 57 second call from the Punchbowl area placing him in the area where the murder occurred). Darwiche called Aouad at 2.15pm (a 10 second call).
33. Another admission made was that at 6.37pm on the evening of 30 October 2003, Darwiche met El-Zeyat, Bassam Said, Tony Haddad and another man (Jalal Alameddine) in the car park of a fast food restaurant at Menai.
34. The Crown relied upon the evidence of two brothers, Wahib and Haissam Hannouf, to identify the applicants as the shooters. They were in a car driving past the service station at the time of the shooting. Wahib said he was driving slowly but slowed down even more when passing the service station because he saw the deceased. There had been prior conflict between the deceased and the Hannouf family and Wahib Hannouf had recently heard that the deceased had been released from gaol recently. He saw a Commodore stopped near to the service station and saw the applicants near to it.
35. Wahib Hannouf said that he saw the applicants walk quickly towards the service station and the deceased. They put the hoods of their jackets over their heads and took out guns as they approached. The shooting then occurred.
36. Haissam Hannouf gave evidence to similar effect. He knew El-Zeyat by his nickname (“Erdt”). He did not know Aouad; his brother told him it was “Fidel” (Aouad’s nickname). He also recognised the driver of the Commodore as Mohammed Touma.
37. Suggestions put in cross-examination to the Hannouf brothers to the effect that they were in fact complicit in the murder were denied. (No evidence seems to have been adduced in an endeavour to affirmatively establish the proposition.)
38. The evidence of the Hannouf brothers, in particular that they were witnesses to and not involved in the killing, was supported by that of Safa Milani who worked at the service station. He assisted the deceased and Bassam Said to push their vehicle into the service station before returning to another task. He said he then saw a vehicle with two male occupants driving slowly past the service station at around the time of the shooting. He saw the driver was looking into the service station.
39. Another item of evidence relied upon by the Crown was that of “Michael Rahman” (a pseudonym assigned by the trial judge). Mr Rahman was a customer getting petrol at the service station and witnessed the killing and the flight of the two shooters to the waiting Commodore. He got a better look at one of the shooters (“the first gunman”) than the other. His description of the first gunman included a hooded jacket that was consistent with one that Aouad admitted owning. Mr Rahman subsequently participated in the compilation of a computer-generated image which he was satisfied was 80 per cent similar to the first gunman. Mr Pickering submitted that this image was “remarkably similar in appearance to Ramzi Aouad”. Counsel for the applicants made no attempt to criticise that submission.
40. The Crown also relied upon the evidence of Tony Haddad at the trial but did not seem to place much reliance upon him in relation to the present application. In a subsequent trial, Haddad refused to give evidence and so there must be real issues about his credibility. I will adopt what I understood to be the Crown’s approach and put his evidence to one side.

Determination

41. In summary, the Crown case, aside from the evidence of Bassam Said and ignoring that of Tony Haddad, included the evidence of the following:

Wahib Hannouf identifying both applicants as being the shooters.

Haissam Hannouf identifying El-Zeyat as being one of the shooters and confirming that Wahib Hannouf had contemporaneously nominated the other shooter as Aouad.

The applicants being associated with the car used to convey the shooters to and from the scene of the crime.

Mobile telephone contact between the applicants and other relevant persons at around the time of the shooting, particularly placing El-Zeyat in the same general area.

One of the shooters bearing a close similarity to the appearance of Aouad.

42. Crucial to a case based upon this body of evidence was the first and second items, the Hannouf identification evidence. They were witnesses with issues about their credibility – see the summaries of their evidence which includes such matters in the judgment of James J in Aouad v R; El-Zeyat v R at [82]-[107] and [108]-[127] respectively.
43. There were grounds of appeal raised by each applicant that were critical of a direction given by the trial judge to the effect that “the jury could look for independent support for the evidence of one witness in the evidence of another witness”. These grounds were rejected. However, when dealing with the fresh evidence grounds based upon the conversation between Bassam Said and Sheikh Taj Eldeen Alhilali, James J was concerned about the possible effect of that direction. He said the following in that context:

[355] Earlier in this judgment I summarised the evidence in the Crown case. As was submitted by the Crown on this appeal, there was much evidence in the Crown case other than Bassam Said's evidence.
[356] However, the only witnesses who actually identified the shooters were Bassam Said and the Hannouf brothers, Wahib Hannouf and Haissam Hannouf.
[357] An advantage to the Crown in Bassam Said's evidence was that Bassam Said was indisputably at the service station at the time of the shooting, within a few metres of the victim and the shooters, and would have had a good opportunity of observing the shooters.
[358] On the other hand, the evidence of the Hannouf brothers was open to the criticism that it could seem a remarkable coincidence that they happened to be travelling past the service station at the very time the shooting occurred. In accordance with the trial judge's directions in her summing up that the jury could look for independent support for the evidence of one witness in the evidence of another witness, the jury could have looked at Bassam Said's evidence for independent support for the evidence of the Hannouf brothers.

44. Mr McLachlan referred to this passage of the judgment in his submissions in reply. But this aspect of the determination of the fresh evidence ground by James J must be understood in its context: appellate review of the likely effect the evidence might have had if it had been before the jury. It is a significantly different context to an application under the Costs in Criminal Cases Act.
45. The credibility of the Hannouf brothers was not addressed in the submissions for either applicant beyond Mr McLachlan’s references to the Court of Criminal Appeal judgment and Ms Carroll referring in general terms in her submissions in reply to “their indemnification and the inconsistencies within the evidence”.
46. It was agreed that the matters to which Ms Carroll briefly alluded were adequately summarised in the Part A document (part of Exhibit A on the application). I have had regard to the matters there set out. They do not lead me to think that their evidence was incapable of belief; and no submission was made that I should. The Hannouf evidence was, in my assessment, capable, although not commanding, of belief. If a jury did accept it, conviction was almost assured.
47. It is worthy of note, but of only minor significance, that there was no ground of appeal contending that the verdicts of the jury were unreasonable, or could not be supported, having regard to the evidence. And it does not appear that any submission was made that the appropriate order for the Court of Criminal Appeal to make in the event of quashing convictions was other than for a retrial.
48. This was a case involving a most serious criminal offence alleged to have been committed by men entrenched in serious criminal activity generally (both applicants are currently serving life sentences for a double murder committed a fortnight earlier on 14 October 2003: see Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; 209 A Crim R 424). Cases such as these are often difficult for investigators and prosecutors. They necessitate reliance upon witnesses who themselves are part of the criminal milieu and so it is inevitable that there will be credibility issues ventilated at trial. I do not suggest that the bar to prosecuting such cases should be lowered for this reason but mention this simply to recognise a practical reality. I am satisfied that the prosecution case, putting aside the evidence of Messrs Said and Haddad, was a viable one. Even if the evidence of those two witnesses is taken into account, it does not seem to me that it detracted from the viability of the rest of the case (and it was not submitted to the contrary).
49. I am not persuaded that 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. If I am wrong about that, I am not persuaded that I should exercise the discretion to grant a certificate in any event.

Order

50. I make the following order:

The applications by Ramzi Aouad and Naseam El-Zeyat for a certificate pursuant to the Costs in Criminal Cases Act are dismissed.

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