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Orman v R

Orman v R

Case [2010] VSCA 246 21 September 2010

Criminal Liability

Evidence Law

Circumstantial Evidence

Admissibility of Evidence

Jurisdiction

Verdict

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

FARUK ORMAN	S APCR 2009 0920
FARUK ORMAN	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and NEAVE JJA and BEACH AJA
WHERE HELD	MELBOURNE
DATES OF HEARING	17, 18 and 20 August 2010
DATE OF JUDGMENT	21 September 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 246
JUDGMENT APPEALED FROM	[2009] VSC 538 (Weinberg JA)

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CRIMINAL LAW – Murder – Gangland killing of one ‘hitman’ by another – Accused alleged to have acted as driver of get-away car in concert with killer – Evidence that killer ‘a hitman’ and that accused did ‘jobs’ with killer – Discharge of jury in course of trial – Discretion of trial judge – R v Boland [1974] VR 849, The Queen v Crofts (1996) 86 CLR 427, applied.

Evidence – Bad character – Whether evidence of reputation of killer and of accused’s association with killer admissible against accused as probative of facts inherent in background of case, killer’s motive and scope of accused’s agreement to act in concert with killer – Observations of McHugh J in Harriman v The Queen (1989) 167 CLR 590, 630, applied – R v Knowles [1984] VR 751, followed – Plomp v The Queen (1963) 110 CLR 234, McAuliffe v The Queen (1995) 183 CLR 108, referred to.

Quaere whether evidence inadmissible against killer at trial of killer would otherwise be inadmissible against accused at trial of accused to which killer not party – R v Lowery (No 3) [1972] VR 989, considered, R v Robson [2006] 1 Cr App R 480, referred to.

Circumstantial evidence – Essential intermediate fact – Whether identity of get-away car an essential intermediate fact which, standing alone, required proof beyond reasonable doubt – The Queen v Hillier (2007) 228 CLR 618, applied.

Witnesses – Gaol-house informer – Pollitt direction – Matters necessary to be referred to in direction – Need to mould direction to circumstances of case – Pollitt v The Queen (1992) 174 CLR 558, considered, R v Clough (1992) 28 NSWLR 396, followed.

Verdict – Whether unsafe and unsatisfactory – Whether doubt as to credibility of principal Crown witness sufficient to render verdict unsafe – Whitehouse v The Queen (1983) 152 CLR 657, Chidiac v The Queen (1991) 171 CLR 432, Libke v The Queen (2007) 230 CLR 559, 596, referred to.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr R Richter QC with Mr C B Boyce	Grigor Lawyers
For the Crown	Mr J D McArdle QC with Dr S B McNicol	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA

NEAVE JA
BEACH AJA:

The applicant, Faruk Orman, was jointly presented with Vincent Benvenuto on one count of the murder of Victor George Peirce at Port Melbourne on 1 May 2002. Following a trial of some five weeks duration, the applicant was convicted and Benvenuto was acquitted. The applicant now seeks leave to appeal against his conviction.

The Crown case at trial

The Crown…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Orman v R

Details

AGLC: Orman v R [2010] VSCA 246
Case: [2010] VSCA 246
Decision Date: 21 September 2010

CaseChat Overview and Summary

In the matter of Orman v R, the Supreme Court of Victoria was tasked with hearing a case concerning a gangland killing. The accused, Orman, was alleged to have acted as the driver of the get-away car in collaboration with the killer. The victim, a known hitman, was killed during an incident where Orman and the killer had a history of working together on various jobs. The trial faced complications when the jury was discharged mid-trial, prompting a review of the trial judge's discretion under precedents such as R v Boland and The Queen v Crofts.

The court had to determine whether evidence of the killer's reputation as a hitman and Orman's association with him was admissible in Orman's trial. This was assessed against the backdrop of evidence of bad character, guided by observations from McHugh J in Harriman v The Queen and subsequent cases such as R v Knowles and Plomp v The Queen. Additionally, the court examined whether evidence that might be inadmissible against the killer could still be relevant against Orman in his separate trial. This consideration included references to R v Lowery and R v Robson.

The court’s reasoning focused on the admissibility of evidence concerning the killer’s identity and motive, as well as the necessity to prove the identity of the get-away car as an essential intermediate fact. This analysis was influenced by The Queen v Hillier and other related case law. The court also addressed the application of the Pollitt direction in relation to gaol-house informers, ensuring that the direction was tailored to the specific circumstances of the case, as established in Pollitt v The Queen and R v Clough.

Ultimately, the court concluded that the verdict was safe and satisfactory despite doubts about the credibility of the principal Crown witness. This conclusion was reached after considering precedents such as Whitehouse v The Queen, Chidiac v The Queen, and Libke v The Queen, which underscore the standard for assessing the safety of a verdict when there are questions about witness credibility.

Orders