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Osman v R

Osman v R

Case [2006] NSWCCA 196 22 June 2006

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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.

HEARING DATE(S): 9 June 2006

JUDGMENT DATE:
22 June 2006

JUDGMENT OF: McClellan CJ at CL at 1; Johnson J at 25; Latham J at 26

DECISION: Application for separate trial dismissed.

CATCHWORDS: CRIMINAL LAW - 5F APPLICATION - refusal to order separate trials - refusal to separate indictment - series of murders - several co-accused - applicant alleged to have been driver during one of the shootings - whether offences were part of a series of offences of the same or similar character - whether the matters ought to be heard and determined separately in the interests of justice - whether cross-admissibility was determinative of whether there was a series of offences, whether a risk of guilt by association, whether directions can confine use of the evidence

LEGISLATION CITED: Criminal Appeal Act 1912
Criminal Procedure Act 1986

CASES CITED: De Jesus v R (1986) 68 ALR 1
Phillips v The Queen [2006] HCA 4
R v Bunting (No 3) (2005) SASR 251
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

PARTIES: Abass Osman (Appl)
The Crown

FILE NUMBER(S): CCA 2006/1297

COUNSEL: A Francis (Appl)
L Babb/Pickering (Crown)

SOLICITORS: Mark Klees & Associates (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2005/1366

LOWER COURT JUDICIAL OFFICER: Bell J

LOWER COURT DATE OF DECISION: 30 May 2006

2006/1297

McCLELLAN CJ at CL
JOHNSON J
LATHAM J
THURSDAY 22 JUNE 2006

OSMAN, Abass v REGINA

Judgment

1 McCLELLAN CJ at CL: Abass Osman seeks leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 a decision by Bell J refusing to order that he be separately tried on two counts of murder. The application was heard and dismissed by this Court on 9 June 2006. These are my reasons for joining in the making of that order.

2 Osman has been charged along with Adnan Darwiche, Naseam El-Zeyat and Ramzi Aouad with the murder of Ziad Razzak and Mervat Nemra. The charges are counts 6 and 7 on an indictment which contains 7 counts in all. This indictment has been substituted for an indictment which previously contained ten counts.

3 The charges against Osman arise from events which are shortly referred to as “the Lawford Street shooting.” The charges were preferred ex-officio against each accused. Bell J summarised the counts on the original indictment in the following terms:

“Count 1: On 27 August 2003 at Condell Park Adnan Darwiche and Abdul Darwiche shot at Farouk Razzak with intent to murder him (the Yanderra Street shooting).

Counts 2-4 charged Adnan Darwiche with firearm offences committed on 28 November 2003, the date of his arrest.

Counts 5-7…

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 Osman v R

Details

AGLC: Osman v R [2006] NSWCCA 196
Case: [2006] NSWCCA 196
Decision Date: 22 June 2006

CaseChat Overview and Summary

The matter before the court involved a criminal case where the applicant, Osman, sought to have separate trials for the charges he faced alongside several co-accused. The applicant was alleged to have been the driver during one of the shootings that were part of a series of murders. The court was tasked with deciding whether the offences were part of a series of offences of the same or similar character, and if the matters should be heard and determined separately in the interests of justice. The applicant argued that the refusal to separate the indictment and order separate trials was unjust and risked guilt by association. Additionally, the applicant questioned whether the cross-admissibility of evidence was determinative of whether there was a series of offences, and whether directions could confine the use of the evidence.

The court examined the criteria for determining whether offences were part of a series of the same or similar character, and whether the matters ought to be heard separately. It considered the potential for guilt by association and the effectiveness of directions in mitigating the risk. The court found that the nature of the offences and the close temporal and circumstantial connection between them indicated a series of offences of the same or similar character. The court also held that the cross-admissibility of evidence was not determinative of whether there was a series of offences, and that appropriate directions could sufficiently confine the use of the evidence to prevent unfair prejudice. Consequently, the court upheld the decision to not separate the indictment or order separate trials, finding it in the interests of justice to proceed with a joint trial.

In light of the above, the court dismissed the applicant's application for a separate trial. The court found that the offences were part of a series of offences of the same or similar character and that the interests of justice were best served by a joint trial. The court also found that the risk of guilt by association could be mitigated through appropriate directions. The court held that the refusal to separate the indictment and order separate trials was justified and in line with the principles of justice. The case serves as a reminder of the importance of considering the nature of the offences and the potential for unfair prejudice when deciding whether to grant separate trials in cases involving multiple co-accused.

Orders