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Court of Criminal Appeal 22 June 2006

OSMAN v REGINA

[2006] NSWCCA 196

Homicide
CRIMINAL LAW 5F APPLICATION REFUSAL TO ORDER SEPARATE TRIALS REFUSAL TO SEPARATE INDICTMENT SERIES OF MURDERS SEVERAL CO

Citation: Osman v Regina [2006] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 22 June 2006
Judge(s): McClellan CJ at CL, Johnson J, Latham J

Background

The applicant, Abass Osman, was charged alongside three co-accused with two counts of murder arising from a shooting at premises in Lawford Street, Greenacre on 14 October 2003. The charges against the applicant were confined to his alleged role as a driver during that single shooting incident. His co-accused, particularly Adnan Darwiche, faced a broader range of charges across multiple shootings alleged to form part of an ongoing violent feud between family groups.

All accused had brought motions for separate trials before Bell J in the Supreme Court, arguing that a joint trial would be unfair. Bell J rejected all of those motions. Only Osman pursued the matter further by seeking leave to appeal under s 5F of the Criminal Appeal Act 1912.

The applicant's central concern was that being tried alongside co-accused whose charges were supported by substantially more corroborating evidence created a real risk that the jury would be improperly influenced when considering the comparatively weaker case against him.

  • Whether the offences charged on the indictment constituted a series of offences of the same or similar character, justifying joinder
  • Whether the interests of justice required that the applicant be tried separately from his co-accused
  • Whether the risk of "guilt by association" arising from a joint trial could be adequately managed by judicial directions to the jury
  • Whether cross-admissibility of evidence was determinative of whether a series of offences existed for the purposes of joinder
  • Whether the relative weakness of independent corroboration for the charges against the applicant, compared to those against co-accused, was a sufficient basis to order a separate trial

Decision

McClellan CJ at CL, writing the principal judgment, upheld Bell J's refusal to order a separate trial. His Honour accepted Bell J's findings regarding the interconnected nature of the offences, including ballistics evidence linking weapons used across multiple shootings, and the common background of a family feud that gave context to all of the charges. The evidence of key Crown witnesses, particularly indemnified witnesses Taleb and W, was relevant across all counts and required an understanding of the broader history to be properly assessed.

The applicant argued that the indemnified witnesses would be bolstered by independent corroborating evidence on the charges against the co-accused, but not to the same extent on the charges against him. This asymmetry, it was submitted, would make it impossible for the jury to assess the credibility of those witnesses independently when considering the case against the applicant. The Court rejected this argument on the facts, noting that the Crown itself submitted there was very little independent corroborating evidence for the indemnified witnesses with respect to any charges, whether against the co-accused or the applicant.

Latham J added brief remarks specifically addressing the discretion under s 29(3) of the Criminal Procedure Act 1986. Her Honour noted that the summary of the Crown case relied upon by the applicant was drawn principally from the indemnified witnesses' own statements and was presented at its highest. Nothing placed before the Court of Criminal Appeal provided a reliable basis for concluding that the witnesses would receive meaningful independent corroboration with respect to the co-accused's charges.

All three judges agreed that the applicant had not demonstrated that Bell J's exercise of discretion had miscarried, and that the applicant had failed to show that a joint trial would cause injustice to him.

Orders Made

  • Application for separate trial dismissed.

Key Takeaways

  • Refusing the application, the Court of Criminal Appeal confirmed that a joint trial does not become unfair merely because the charges against one accused are fewer or more limited in scope than those against co-accused.
  • Cross-admissibility of evidence is not a prerequisite for joinder, but interconnected factual and forensic links across charges remain relevant to whether offences form a series justifying a joint indictment.
  • Where an applicant asserts prejudice from the comparative corroboration of Crown witnesses on other charges, that assertion requires a reliable evidentiary foundation; a Crown case summary drawn principally from the indemnified witnesses themselves is insufficient to establish the asymmetry claimed.
  • Under s 29(3) of the Criminal Procedure Act 1986, an accused must demonstrate that a joint trial would produce actual injustice, not merely theoretical disadvantage, before the court will exercise its discretion to order a separate trial.
  • Appellate intervention in a refusal to separate an indictment requires the applicant to show the primary judge's discretion miscarried; disagreement with the outcome is not sufficient.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 29(3)

Cases:
- 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