OSMAN v REGINA

Court of Criminal Appeal (NSW)|2006-06-09|Before: McClellan CJ, Johnson J, Latham J, Bell J, Clellan CJ

The application for leave to appeal 8 There are two questions raised in this application. Firstly, in the circumstances of the case to be made against Osman, whether the offences with which he is charged form, or are part of, a series of offences of the same or a similar character within the meaning of s 29(2)(c) of the Criminal Procedure Act 1986. If the answer to the first question is "yes", the second question raises for consideration whether the "matters ought to be heard and determined separately in the interests of justice" (s 29(3)). 9 With respect to the question arising under s 29(2)(c) counsel for Osman accepted that the various offences alleged against Adnan Darwiche were part of a series for the purposes of s 29(1)(c) but submitted this was not determinative of the issue in relation to the co-offenders. In counsel's submission the critical issue was whether evidence which was admissible in any of the other counts was admissible against Osman in relation to the counts charged against him. If not, it was submitted that a relevant series of offences could not be identified. Reliance was placed upon the decisions in De Jesus v R (1986) 68 ALR 1; Phillips v The Queen [2006] HCA 4; Regina v Sheikh [2002] NSWCCA 136. 10 To my mind none of the decisions referred to support the construction of s 29(2) contended for by the applicant. In the present case the prospective evidence makes plain that the offences charged on the indictment are intimately related and arise from a series of killings alleged to have taken place as part of a feud between families which has resulted in a number of shootings with fatal consequences. In the ordinary meaning of the words there could be no doubt that the various killings, including the two counts against the applicant, form part of a series of offences of the same or a similar character. The distinction between s 29(1) and 29(2) is not without significance. Section 29(1) is concerned with multiple offences and one offender. Section 29(2) is concerned with both multiple offences and multiple offenders, where the offences are part of a series. This does not raise any expectation that the evidence admissible against one offender must necessarily be admissible against any other offender. 11 De Jesus involved consideration of s 585 of the Criminal Code (WA) in relation to a series of alleged sexual offences by the same offender but perpetrated on different victims. At the trial the accused conceded that the charges were correctly joined. The High Court divided on the correct approach to the question of whether the interests of justice would be served by one trial of all the counts. Because there was no connection between them, the evidence on one count would not be admissible on any other count. In these circumstances the majority concluded that one trial would be inappropriate. The risk that the jury would be unable to separate the evidence admissible on any particular charge was too great. 12 Gibbs CJ summarised the relevant principles by reference to the existing authorities in the these terms at 3-4: "The learned trial judge inquired from counsel whether there was any authority in conflict with R v Ludlow [1971] AC 29, in which Lord Pearson, at 39, gave implicit approval to the following statement in R v Kray [1970] 1 QB 125 at 130-1: "… offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases."

Lord Pearson, at 41-2, went on to consider the discretion given by s 5(3) of the Indictments Act to order separate trials, and said, at 41, that the judge has no duty to order separate trials under that section "unless in his opinion there is some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice". He said that the principle is clearly stated in R v Sims [1946] KB 531 at 536, as follows: "We do not think that the mere fact that evidence is admissible on one count and inadmissible on another is by itself a ground for separate trials: because often the matter can be made clear in the summing up without prejudice to the accused. In such a case as the present, however, it is asking too much to expect any jury when considering one charge to disregard the evidence on the others, and if such evidence is inadmissible, the prejudice created by it would be improper and would be too great for any direction to overcome."

R v Sims was a case in which the accused was charged in one indictment with several charges of sodomy and gross indecency; it was held that on the trial of one of the counts the evidence would be admissible, and that the joinder was therefore properly made. Unfortunately in the present case neither counsel referred the learned judge to the more recent judgments of the House of Lords in R v Boardman [1975] AC 421 or to the decision of this court in Sutton v R (1984) 152 CLR 528. In R v Boardman the accused was charged with homosexual offences involving a number of boys and the trial judge had ruled and directed the jury that the evidence given on a count concerning one boy was admissible as corroborative evidence in relation to the count concerning another boy. The House of Lords held that the judge was entitled to direct the jury as he had done because the evidence was admissible. The case contains an important discussion of the law relating to the admissibility of evidence of similar facts, but we are not concerned with that aspect of the matter. It was accepted by a majority of their Lordships that if the evidence in relation to one count was not admissible on another count there should have been no joinder of the counts. Lord Hailsham of St Marylebone expressed this view succinctly, at 447, where, dealing with counsel's argument, he said: "Strictly speaking, it was submitted that each boy's evidence was inadmissible in considering the other charge. This is somewhat surprising, since, of course, in that event there should have been separate trials …"

Lord Cross of Chelsea, at 459, dealt with the matter rather more fully. He said: "When in a case of this sort the prosecution wishes to adduce 'similar fact' evidence which the defence says is inadmissible, the question whether it is admissible ought, if possible, to be decided in the absence of the jury at the outset of the trial and if it is decided that the evidence is inadmissible and the accused is being charged in the same indictment with offences against the other men the charges relating to the different persons ought to be tried separately. If they are tried together the judge will, of course, have to tell the jury that in considering whether the accused is guilty of the offence alleged against him by A they must put out of mind the fact - which they know - that B and C are making similar allegations against him. But, as the Court of Criminal Appeal said in R v Sims [1946] KB 531 at 536, it is asking too much of any jury to tell them to perform mental gymnastics of this sort. If the charges are tried together it is inevitable that the jurors will be influenced, consciously or unconsciously, by the fact that the accused is being charged not with a single offence against one person but with three separate offences against three persons. It is said, I know, that to order separate trials in all these cases would be highly inconvenient. If and so far as this is true it is a reason for doubting the wisdom of the general rule excluding similar fact evidence. But so long as there is that general rule the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence by trying all the charges together." Lord Wilberforce expressed a similar view, at 442. Although, as I have said, the case concerned homosexual offences, the reasoning of Lord Cross of Chelsea is equally applicable to heterosexual offences since in those cases the risk of prejudice will be equally great. In Sutton v R (a case arising under the law of South Australia) this court applied the same principle to cases of rape. In that case I said (CLR at 531; ALR at 437): "Before us it was accepted by counsel for the prosecution that where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. That was the view taken by the majority of the House of Lords in Director of Public Prosecutions v Boardman and it is a view consonant with justice …"

Brennan J (CLR at 541-2; ALR at 445) said: "When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted." 13 Phillips was also a case which involved a number of unrelated criminal acts of a sexual nature allegedly committed by the same person. Like De Jesus the decision turned upon the prejudice to the accused from the admission of evidence on one count at his trial on the other counts, a prejudice which the High Court said could not be removed by directions given by the trial judge at [79]. "Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused's character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decided. That threshold was not met in this case. It was therefore necessary that the allegations, formulated in the charges brought against the appellant, be separately considered by different juries, uncontaminated by knowledge of other complaints. This is what Pfennig and other decisions of this Court require. To the extent that O'Keefe or other authority suggests otherwise, it does not represent the law. No other outcome would be compatible with the fair trial of the appellant." 14 Sheikh also related to multiple counts of wrongful sexual acts. The alleged offences were described by Ipp JA as "brutal, cruel, callous and horrifying. The alleged offenders are all, or all but one, from the same ethnic group. The details of the offences are likely to arouse extremely hostile feelings against these persons. The common ethnicity of the offenders could well give rise to generalised feelings of disgust and anger. It is possible that the jury may be influenced by such feelings brought about by the conduct of all the offenders, when considering their verdict in respect of the counts against Sheikh." Because of these considerations this court, by majority, held that a separate trial was required for without it there was a "risk of guilt by association." Bell J agreed with Ipp JA in this conclusion. Again, the decision is relevant only to the second question which arises in the present case. 15 Reference was also made to R v Kray [1969] 3 All ER 941 which was considered by the High Court in De Jesus. The case involved two counts of murder which were unrelated but for the alleged killer. It was held that to qualify as a series, the offences only required similar features "as to establish a prime facie case that they can properly and conveniently be tried together" (at 944). That decision, although confined in its application by Gibbs CJ in De Jesus, remains relevant to the determination of the first question in the present matter. Although cross admissibility may indicate a series of offences it is not an essential requirement. 16 In the present case the charges against Osman will be supported by evidence that he was the driver of the car involved in the shooting and knowingly participated in the criminal enterprise. Although counsel indicated that Osman's defence will concentrate upon a denial that he was present at all, it will be inevitable that the background to the particular killings must be explained to the jury. 17 Having regard to the connection between the events which constitute each charge I am satisfied that her Honour was correct in finding that the requirements of s 29(2)(c) were made out. Although in many cases the evidence against one accused, charged together with another accused, may be admissible against both, and may point to there being a series of offences, this is not an essential precondition. 18 With respect to s 29(3) Bell J was in a better position than this Court to exercise the judgment which the sub-section requires. She had heard all the evidence given at the Basha inquiries and is aware of the evidence given at the trial of Abdul Darwiche. 19 The primary attack upon her Honour's decision was based on the assumption that evidence which may bolster the credit of the Crown witnesses against Osman may be tendered on the other counts, but not be admissible against Osman, making it impossible for the judge to ensure by her directions that Osman receives a fair trial. I am not persuaded that this will be the case. No doubt credit matters will arise but her Honour is aware of the basis of the proposed attack and I am not persuaded that the judgment she has made should be overturned by this Court. 20 There can be no doubt that the background to which the killings with which Osman has been charged will have to be explained by the Crown at the trial. The relevant events would make little sense unless this was done. Inevitably this must involve the jury gaining an understanding of the "feud" which was allegedly taking place leading to the inevitable inference that at the relevant time Osman was aware of the feud and the shootings which had taken place. Of the alleged shootings and killings at least one of those in respect of which Osman is alleged to have been involved is a frightening event involving a hail of bullets fired at premises where an apparently innocent woman was fatally shot. 21 In these circumstances although the whole sequence of events, if proved, suggests a lawless, violent and reckless foray I do not believe there is a reasonable risk that the applicant could be found guilty by reason of his association with the other accused. That association will be plain even if separately tried. 22 Osman's alleged involvement in two of the series of offences will be the subject of evidence which can be confined to the charges against him by appropriate directions. It is important to bear in mind that the interests of justice involve more than the interests of the accused. As was pointed out in Kray and acknowledged in Sheikh the interests of the Crown, the witnesses and the public must also be considered. 23 The applicant relied on decisions of courts where it could be concluded that the evidence which would be given at the trial would not be admissible against one accused and where the trial judge would have difficulty in giving directions which appropriately confined the use of that evidence see R v Bunting (No 3) (2005) SASR 251; R v Demirok [1976] VR 244; R v Gibb and McKenzie [1983] VR 155 and R v Jones & Waghorn (1991) 55 A Crim R 159. However, even if there are potential difficulties it does not mean that a separate trial must be ordered. In Bunting the Court found that there would be extraordinary difficulty in confining the use which the jury would make of the available evidence and "not without" considerable hesitation "ordered a separate trial" [460]. 24 Nothing has been put before this Court which would persuade me that similar difficulties arise. Bell J has an intimate knowledge of the case against each accused, the evidence to be tendered and the foreseeable line of cross examination. Her Honour was satisfied that the applicant had failed to demonstrate that an injustice would be caused to him from a joint trial. I am not persuaded that this Court should, at this stage of the proceedings determine that her Honour's decision that the interests of justice do not require a separate trial should be overturned. 25 JOHNSON J: I agree with McClellan CJ at CL and the additional remarks of Latham J. 26 LATHAM J: I agree with the reasons of the Chief Judge at Common Law. I wish to add some brief remarks regarding the exercise of the discretion under s 29(3) of the Criminal Procedure Act 1986. 27 As McClellan CJ at CL has observed at par 19, counsel for the applicant maintained that her client could not receive a fair trial in circumstances where the indemnified Crown witnesses, W and Taleb, would be supported by other independent evidence with respect to the charges against the co-accused, yet not so supported (or to the same extent) with respect to the two charges brought against the applicant. It would be impossible, according to the submissions, for the jury to give separate consideration to the comparatively weaker body of evidence against the applicant, uninfluenced by the fact that the credibility of the indemnified witnesses was bolstered by evidence inadmissible against the applicant. 28 Counsel for the applicant maintained that this type of prejudice would arise, relying upon that part of Bell J's judgment which summarised the Crown case in relation to the ongoing feud between the Darwiche and the Razzak families (pars [38] - [66]). Two aspects of that summary should be noted. Her Honour was referring to the Crown case at its highest and her summary was prefaced by the observation that it was taken principally from Taleb's statement (par [38]). True it is that her Honour notes that "there is material from other sources to support some aspects of the history that the Crown relies upon", but there was nothing placed before this Court which provided a reliable basis for concluding that the indemnified witnesses would be supported to any significant extent on any aspect of their evidence. Indeed, the Crown submitted that there was very little evidence supportive of the indemnified witnesses, either with respect to the charges against the co-accused or the two charges against the applicant. 29 For these additional reasons, I am not persuaded that her Honour's discretion miscarried. **********

28/06/2006 - to be removed from net - Paragraph(s) none

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CITATION: OSMAN v REGINA [2006] NSWCCA 196 This decision has been amended. Please see the end of the judgment for a list of the amendments.

De Jesus v R (1986) 68 ALR 1 Phillips v The Queen [2006] HCA 4 R v Bunting (No 3) (2005) SASR 251 CASES CITED: R v Demirok [1976] VR 244 R v Gibb and McKenzie [1983] VR 155 R v Jones v Waghorn (1991) 55 A Crim R 159 R v Kray [1969] 3 All ER 941 Regina v Sheikh [2002] NSWCCA 136

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