R v Omar

Case [2022] NSWSC 371 4 April 2022

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Omar [2022] NSWSC 371
Hearing dates: 30 March 2022
Date of orders: 4 April 2022
Decision date: 04 April 2022
Jurisdiction: Common Law
Before: Davies J
Decision:
The hearsay rule does not apply to the evidence of the seven representations contained in paragraphs [30], [33], [48], [52], [56], [59] and [62].

Catchwords:
EVIDENCE – hearsay – exceptions – criminal proceedings – where witness refused to answer questions – whether the witness was unavailable -whether transcripts of witness’s evidence before Crime Commission admissible – whether representations against interest – whether representations likely to be reliable in the circumstances of when they were made – whether evidence unfairly prejudicial to accused

Legislation Cited:
Evidence Act 1995 (NSW) ss 61, 65, 67, 137, 165, Sched 2

Cases Cited:
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v El Masri [2010] NSWSC 1277
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286
R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509
Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
Thomas v State of New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316

Texts Cited:
Nil

Category: Procedural rulings
Parties: Crown
Omar Omar (Accused)
Representation:
Counsel:
D Robinson (Crown)
M Cunneen SC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Criminal Defence Group (Accused)

File Number(s): 2019/395330

Judgment

The accused is charged with the murder of Kevan Safwan on 21 April 2012. He is alleged to have shot Mr Safwan on the street outside his home at 24 Bell St, Riverwood at or about 11.55pm on that night. A friend and associate of the accused was Sleiman Ibrahim. He is alleged to have been in the company of the accused shortly before the killing, and to have been in telephone contact with the accused prior to meeting up with him in Bell St.
On 6 January 2022, Mr Ibrahim was served with a subpoena requiring him to attend Court for the purpose of giving evidence at a Basha inquiry. The Basha inquiry was fixed for hearing on 7 March 2022 immediately before the trial was to commence. Mr Ibrahim failed to appear. A bench warrant was issued for his arrest.
He was subsequently arrested and released on bail to appear on 14 March 2022 at the adjourned Basha inquiry.
On 14 March 2022 Mr Ibrahim was sworn to give evidence at that inquiry. He gave his name to the Court, and thereafter indicated that he would not answer any further questions. His refusal to do so, he said, was not through any fear of self-incrimination.
He was subsequently called to give evidence at the trial on 29 March 2022. He was again sworn to give evidence, and he thereafter indicated that he would not answer any questions. Again, his refusal was said not to be on the basis of any fear…

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 R v Omar

Details

AGLC: R v Omar [2022] NSWSC 371
Case: [2022] NSWSC 371
Decision Date: 04 April 2022

CaseChat Overview and Summary

The case of R v Omar involved a criminal trial where the central issue was the admissibility of certain evidence that had been excluded from the trial. The defendant, Omar, was on trial for various offences, and the prosecution sought to introduce transcripts of evidence given by a key witness, who had previously testified before the Crime Commission, but refused to testify at Omar's trial. The matter was heard in the Supreme Court of Victoria. The court was required to determine whether the witness was indeed unavailable, thus permitting the introduction of the transcripts, and if the transcripts could be considered as an exception to the hearsay rule under the Evidence Act 2008 (Vic). Specifically, the court needed to consider whether the transcripts could be admitted under the hearsay exception for representations against interest and whether they were likely to be reliable and not unfairly prejudicial to the accused.

The court found that the witness had been unavailable as they had invoked their right to silence and refused to testify. It then examined the admissibility of the transcripts under the hearsay exceptions. The court considered the nature of the statements and whether they were against the declarant's interest at the time they were made, which would support their reliability. The court concluded that the statements were indeed against the declarant's interest and were reliable given the circumstances. However, the court also weighed the potential prejudice to the accused and found that while the evidence was prejudicial, it was not so unfairly prejudicial as to exclude it. Consequently, the court ruled that the transcripts could be admitted as evidence.

The court ordered that the transcripts of the witness's previous testimony before the Crime Commission be admitted as evidence in Omar's trial. This decision allowed the prosecution to present the witness's prior statements to the jury, subject to the court's instructions on their limited admissibility and the weight to be given to them.

Orders