Osman v R

[2006] NSWCCA 196

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 charged each of the accused with offences arising out of a shooting at premises in Lawford Street, Greenacre on 14 October 2003 (the Lawford Street shooting). Count 5 charged the murder of Ziad Razzak. Count 6 charged the murder of Mervat Nemra. Count 7 charged the offence of shooting at Ali Hamka with intent to murder.
Counts 8, 9 and 10 arose out of the shooting of Ahmed Fahda at the AP Service Station in Punchbowl on 30 October 2003. Count 8 charged Adnan Darwiche with soliciting the murder. Count 9 charged Naseam El-Zeyat and Ramzi Aouad with murder. Count 10 charged Adnan Darwiche as an accessory after the fact to the murder of Ahmed Fahda.”

4 Various motions for separate trials were filed by each of the accused. They were all rejected by her Honour. Only Osman has pursued an appeal.

5 A trial of Abdul Darwiche in relation to the shooting of Farouk Razzak has already been completed before Bell J and a jury. The present charges, apart from the firearm charges, arise from a series of events which allegedly emanate from feuding amongst family groups within the community. A chronological history of the alleged events is set out by Bell J in her judgment on the motion for separate trials. I do not repeat it in these reasons. Her Honour has also conducted a number of Basha style inquiries of Khaled Taleb, W and X. W and Taleb are expected to give evidence against Osman, as well as the others at the trial. They are both indemnified witnesses and an attack upon their credit is anticipated at the trial.

6 Critical to the rejection of the original motion by Her Honour and of present significance are the findings which her Honour made from paras [80] to [99] which are as follows:

“The evidence of Khaled Taleb is central to the Crown case. The Crown submits that in order to understand his evidence concerning the offences committed in 2003, it is necessary to know the history of hostility between Adnan Darwiche and Bilal Razzak dating back to events in 2001, and the peace deal that was brokered following the shooting of Bilal Razzak.

On the Crown case, while it is true to say that the motive for the Yanderra Street shooting was the belief that Ziad and Gehad Razzak had shot Khaled Taleb, the significance of that event was that it was a breach of the peace agreement (previously brokered between the groups).

It is the Crown case that Adnan Darwiche had abandoned his drug dealing activities in 2002 and in the first half of 2003. To confine the Crown in terms of an understanding of the motive and the relationship between Adnan Darwiche and members of the Razzak family to events in mid 2003 when dealing with the Yanderra Street shooting and the later offences, in the Crown's submission, would be to present an incomplete account. I accept that is so.

I consider that on the trial of Adnan Darwiche for the offences that occurred in 2003, it is in each case open to the Crown to lead evidence of the dispute between him and Bilal Razzak in 2001, the peace agreement and its subsequent breach.

The ballistics evidence linking the two SKS style rifles used in the Yanderra Street shooting with the two weapons used in the Lawford Street shooting, and linking the pistol used in the Sir Joseph Banks Street shooting to the Lawford Street shooting, is admissible in the Crown case on the Lawford Street counts.

I consider that the joinder of the counts charging the shooting of Bilal Razzak in an indictment charging Adnan Darwiche with the Yanderra Street shooting and the Lawford Street shooting to be proper, subject to a consideration of whether any counts should be separated in order to avoid prejudice to the accused.

I have considered whether the murder of Ali Abdul Razzak may be in a different category. There is evidence of an additional and discrete motive for that killing. There is no ballistics or other forensic evidence to link the commission of this offence to the other offences.

On the Crown case, it is open to consider the motive for the murder of Ali Abdul Razzak to be a combination of ill will arising out of the deceased's poor treatment of Khadjie Darwiche and the accused's hostility to members of the Razzak family following the breach of the peace agreement. There is evidence which, if accepted, points to the accused as claiming to have a motive to kill members of the Razzak family as at 27 August 2003.

It will be recalled that shortly after the shooting of Ali Abdul Razzak, Taleb says that Darwiche told him he had killed the deceased, and on the occasion of this admission, that Darwiche kept saying, "See what I done for you, see.”

Khaled Taleb asserts his belief that Darwiche's real motive was his hatred of Ali Abdul Razzak over his treatment of Khadjie. Be that as it may, in order to understand Taleb's evidence of the admission, it is necessary to know something of the background, including the initial dispute, the peace agreement, and its breach.

Khaled Taleb gives an account of meeting Adnan Darwiche and Ramzi Aouad in a park near Adnan Darwiche's unit on the night of Ziad Razzak's funeral. Adnan Darwiche challenged him, saying that Gehad Razzak had told someone that Taleb was speaking to the police. Darwiche exhibited anxiety that Taleb may be wearing a listening device. In the course of this meeting, Darwiche asked Taleb, "What did you kill Ali for?" and "Who done Greenacre?” Taleb admitted to the commission of both offences. He says that he did so because he understood that Darwiche was playing “mind games” with him, and pressing him to admit to the offences lest he was carrying a concealed listening device.

Khaled Taleb fled from New South Wales following this incident. On his account he feared that Adnan Darwiche and Ramzi Aouad would kill him.

X gives an account of a conversation with Adnan Darwiche that took place in November 2003, some time after Khaled Taleb left the jurisdiction. In this conversation, Darwiche expressed concerns about whether X and Y could be trusted, in the context that both had been present during discussions on 30 October 2003 when Darwiche and his associates had discussed the murder of Ahmed Fahda.

In the course of the November discussion, X says that Darwiche said to him:

Brother look, look at that dog Crazy [Khaled Taleb] half this drama is what they done to him and look, he ripped me and took off. I thought he was one of my closest brothers … he took off to Lebanon but he’ll be back. When he comes back I’m going to fuck him … X, don’t think that one day I just woke up and went crazy and started killing people. I went to a Sheik and told him everything that had happened from the day I paid them for that dog Bill (referring to Bilal Razzak), everything. They started this thing again. It was over that day I paid them that money. … Yeah it was sorted out in front of the Sheik, everything was sweet. When I went to the Haj (referring to Mecca) they grew balls and wanted to be hard cunts, they went and shot Crazy. … They’re the dogs that started it, if it wasn’t for them none of this would have started.

It is to be anticipated that a substantial attack will be made on Khaled Taleb's credit. It is reasonable to anticipate that it will be put to Khaled Taleb that his detailed knowledge of the events charged against Adnan Darwiche derives from the fact that he was the shooter in each case.

On the trial of the Lawford Street counts, it is to be expected that Khaled Taleb will be cross-examined to prove his admission to have, "Done Greenacre. . . me and my Asian mates.”

On the trial of the count charging the murder of Ali Abdul Razzak, it is to be anticipated that Khaled Taleb will be cross-examined as to his admission, "I shot Ali, I did the shooting at Greenacre I did the lot".

The assessment of Taleb's explanation for the admissions that he made to Darwiche, and of X's evidence of the things Darwiche said to him at the November meeting, seem to me to require an understanding of the whole context.

I have concluded that the murder of Ali Abdul Razzak is connected with the other offences with which Adnan Darwiche is charged, and that it is open to the Crown to lead evidence of the motive, namely the breaking of the peace agreement brokered after the shooting of Bilal Razzak.

The joinder in the one indictment of a count charging Adnan Darwiche with the murder of Ali Abdul Razzak, together with the other counts, is in my opinion proper, subject to a consideration of whether its inclusion would prejudice the fair trial of the accused.”

7 Her Honour dealt with Osman’s application for a separate trial in relation to the Lawford Street shooting together with the similar application made by Adnan Darwiche. Her Honour’s discussion of the issue and relevant findings were as follows:

“I turn now to the application made by Adnan Darwiche that his trial for the Lawford Street shooting proceed separately to the trial of his co-accused, Abbas Osman. This application may conveniently be dealt with together with the application made by Abbas Osman for a separate trial.

The Crown case in relation to the two Lawford Street counts is that the four accused were a party to a joint criminal enterprise. The starting point is that they should be tried jointly: Webb and Hay v R (1994) 181 CLR 41. The principles that are to be applied in determining whether to grant a separate trial are those enunciated by Hunt CJ at CL in Middis and which were approved in R v Baartman (unreported) NSW CCA 6 October 1994:

1. Where the evidence against an applicant for a separate trial 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.

It falls to the applicant for a separate trial to establish that injustice would be occasioned by a joint trial. In support of his application Adnan Darwiche points to evidence that the Crown proposes to lead in its case against Abbas Osman, and which it does not tender in its case against him. W says that prior to the shooting Abbas Osman drove him past the Lawford Street premises saying, "Just drive past, I don't want the Razzaks to recognise the car or me. That's not the way they are going to do it. I am going to be in the hotty waiting for them on Roberts Road. Eddie, Fidel and Erdt are going to run down, they are soldiers" (Statement 21 November 2004 at [9]).

W gives evidence against Adnan Darwiche of statements made by the latter in a conversation with Abbas Osman, including that Abbas was to be the driver. It is to be anticipated that Adnan Darwiche will mount an attack on the credit of W. It is also to be anticipated that Abbas Osman will challenge the evidence of W.

The Crown case against each accused in relation to the Lawford Street count may be broadly described as being of the same character. It depends on an acceptance of the evidence of indemnified witnesses, who describe aspects of the planning of the offence and of various admissions said to have been made by the accused. The evidence against Adnan Darwiche is not significantly weaker than the case against his co-accused.

I do not consider that there is a risk that the jury may approach the matter on the basis that they do not accept W's evidence in the case against Adnan Darwiche (taken with the other evidence) as establishing his guilt, but nonetheless reason to that conclusion, after taking into account (contrary to directions) W's evidence of the things Osman said to him.

The jury will be directed as to the evidence that is available in relation to the case against each accused. I do not consider that prejudice that may not be cured by direction will flow to Adnan Darwiche by reason of the evidence admitted in the case against Abbas Osman of his conversation with W.

Ms McSpedden (who appeared for Osman) submitted that the trial of Abbas Osman should proceed separately to the trial of Adnan Darwiche on counts 1 to 5 in the proposed indictment, and that he should be tried separately from Adnan Darwiche.

When the applications for separation first came on for hearing on 8 and 9 December 2005 the accused Osman was represented by Ms Francis of counsel. In her submission the first issue that it was necessary for me to determine with respect to the inclusion of counts against her client in the August indictment was whether the provisions of s 29(2) of the CPA had been met. It was submitted that the provisions of sub 2(c) did not permit the joinder of counts against Abbas Osman since the other counts in the indictment, even if forming part of a series of offences of the same or a similar character, were not charged against Abbas Osman.

Section 29 was inserted into the Criminal Procedure Act by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001. It provides as follows:

29 When more than one offence may be heard at the same time

(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:

(a) the accused person and the prosecutor consent,

(b) the offences arise out of the same set of circumstances,

(c) the offences form or are part of a series of offences of the same or a similar character.

(2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances:

(a) the accused persons and the prosecutor consent,

(b) the offences arise out of the same set of circumstances,

(c) the offences form or are part of a series of offences of the same or a similar character.

(3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

Ms Francis noted that the provisions of s 29 had been previously enacted in s 78A of the Justices Act 1902. In her submission the incorporation of the provision into Pt 3 of the CPA has effected a material change to the law with respect to the joinder of offences on indictment.

Section 78A was inserted into the Justices Act by the Justices (Amendment) Act 1987. The reason for its enactment appears to have been in order to overcome the requirement for the consent of one or more defendants, or for related charges against the one defendant, before they might be heard together by a magistrate. When the Bill was read for the second time in the Legislative Assembly the Attorney General said this:

The second purpose of the Bill is to insert a new section 78A of the Justices Act to enable summary matters involving one or more defendants, or related charges against one defendant, to be heard together without the consent of the parties when the charges arise out of the same set of circumstances or are, or form part of, a series of offences of the same or a similar character. Provision is made also to enable multiple related matters to be heard together where these criteria are not met but the prosecution and the defence both consent. In all of these circumstances the magistrate hearing the matters will retain a discretion to order that the charges be heard separately if he or she considers it is interests of justice to do so. Under the existing section 78A of the Justices Act charges involving joint defendants or related charges against a single defendant may be heard together only if both parties consent. It is therefore possible for a party to force a separate hearing for each matter merely by withholding consent, even though common sense would suggest that the matters be heard together. The result is a duplication of evidence, gross inconvenience and additional expense to witnesses, and the wasting of valuable court time.

By removing the prerequisite of consent the procedure in the Local Courts will be consistent with that adopted by the higher courts. In both the District Court and Supreme Court the judge has a discretion to hear charges at the same time, irrespective of the number of accused persons, and does not rely upon the consent of the accused or the prosecution. (Hansard, Proceedings of the Legislative Assembly, 11 November 1987, p 15833).

The Criminal Procedure Amendment (Justices and Local Courts) Act was introduced, together with the Justices Legislation Repeal and Amendment Act and the Crimes (Local Courts Appeal and Review) Act . This parcel of legislation effected a number of substantial changes to the operation of Local Courts. It is not clear that the inclusion of s 29 in Pt 3 of the CPA was intended to effect material change to the law with respect to the joinder of offences on indictment.

Section 23 of the Criminal Procedure Act provides inter alia that up to three counts may be inserted in the same indictment against the same person for distinct offences of the same kind committed against the same person. This provision was previously found in s 370 of the Crimes Act . It was considered by the Court of Criminal Appeal in R v Hass [1972] 1 NSWLR 589 (which is not reported on this point). In that case the Court observed:

Whilst the Indictment Act 1915 has not in substantial degree been adopted in New South Wales, the common law rule as applied in this State, that any number of counts may be included in the one indictment charging different felonies, was always subject to the power of the court to call upon the Crown Prosecutor to elect upon which counts he would proceed. This is confirmed by s 365(2) of the Crimes Act 1900 [now s 21(2) of the Criminal Procedure Act] … s 365(2) is in similar terms to s 5(3) of the English Indictments Act 1915. … it is upon this background that s 370 [now s 23 of the Criminal Procedure Act] must be read. Its effect is that the Crown may not be put to its election, or a separate trial be ordered, if the indictment contains three charges of distinct offences of the same kind committed against the same person within a period of six months, with the proviso that counts alternative to those preferred may also be included.

The Court rejected a contention that the inclusion of five counts in the one indictment was contrary to either the common law or to the provisions of s370 of the Crimes Act .

It is not necessary for me to determine what, if any, change to the law relating to the joinder of offences in the indictment has been effected by the introduction of s 29 into Pt 3 of the CPA, since I am satisfied that the offences form or are part of a series of offences of the same or of a similar character. I do not consider the circumstance that the accused Abbas Osman is not charged with each of the offences in the indictment forming part of that series to mean that the provisions of s 29(2)(c) are not met.

Ms McSpedden placed principal reliance in her application on considerations of prejudice. In her submission the proposed indictment exposes her client to prejudice that is analogous to that with which the Court was concerned in R v Sheikh [2002] NSW CCA 136. In that case the appellant was charged with offences said to have occurred at the commencement of a series of offences charged in the indictment. Ms McSpedden relied on a passage in the judgment of Justice Ipp (with whose judgment I concurred at [19]):

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 alleged against Sheikh.

I do not consider that the issues with which the Court was concerned in Sheikh are raised in like degree in this application. The significance of the common ethnicity of the accused in the Sheikh matter derived in no small part from the complainant's evidence which included that during the course of a series of humiliating sexual offences she had been subjected to racial taunts. The Lawford Street shooting, on the Crown case, was carried out with the intention of killing members of the Razzak family who happened to be persons of the same ethnic background as the accused. It is no part of the Crown case that the motive for the offences was racially based.

Ms McSpedden complains that her client will have to sit through a lengthy trial at which the focus will be on events with which he has no connection. In her submission this is oppressive. Mr Stanton on behalf of Nasaem El-Zayet made a like submission. On behalf of both Abbas Osman and Nasaem El-Zayet it is noted that none of the evidence relating to motive or relationship has any relevance to the case that the Crown makes against him. In addition each accused complains that the evidence against him is substantially weaker than that which the Crown anticipates leading against Adnan Darwiche and Ramzi Aouad. Each is concerned lest the relatively weak Crown case against him gains strength by the jury impermissibly having recourse to material that is not admissible against him.

It does not seem to me that the case against any accused in relation to the Lawford Street count is significantly weaker than, and different to, that which is admissible against the other accused. I do not consider that there is a risk that the jury will reason towards a finding of guilt in the case against Nasaem El-Zayet or Abbas Osman on the basis of "guilt by association" with Adnan Darwiche who is charged with other serious offences in counts 1 to 5 of the indictment. The evidence admissible against each accused can be isolated and appropriate directions given to the jury so as to ensure the fair trial of the accused in each case.”

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.

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