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Supreme Court 2 November 2022

R v Abdaly; R v Hosseinishoja (No 2)

[2022] NSWSC 1510

Homicide
CRIMINAL LAW EVIDENCE ADMISSIBILITY ACCUSED CHARGED WITH MURDER DELAY IN IDENTIFYING SUBSTANTIAL ISSUE UNSATISFACTORY

Citation: R v Abdaly; R v Hosseinishoja (No 2) [2022] NSWSC 1510
Court: Supreme Court of New South Wales
Date: 2 November 2022
Judge: Hamill J

Background

Two accused stood trial for the murder of Nikola Srbin, who died on 5 June 2013 after being bashed by a large group of men. The prosecution alleged the attack was organised by a man referred to as "Witness A's" associate, Abuzar Sultani, in response to a debt dispute in which Srbin's group had violently threatened Witness A. The prosecution's case was that both accused participated in a joint criminal enterprise to murder Srbin, organised at the clubhouse of the Burwood Chapter of the Rebels motorcycle club.

The prosecution sought to establish that both accused were closely associated with Sultani through their membership of the Burwood Rebels and what the prosecution called the "Sultani Criminal Group." A co-accused, Sultani himself, pleaded guilty during the pre-trial period. Both accused denied being part of the group or sharing any common criminal purpose.

The judgment also addresses, in pointed terms, the unsatisfactory way this evidentiary dispute reached the court. Nearly 5,000 pages of prosecution disclosure were served only days before trial, and the parties had not communicated meaningfully about which evidence would be objected to until the week the trial was set to begin.

  • Whether evidence of the accused's association with Sultani and membership of the Burwood Rebels was relevant and admissible
  • Whether evidence of Sultani's control over members of the group (including a specific incident involving a direction to buy fish burgers at McDonald's) was relevant and admissible to the murder charge
  • Whether evidence of criminal activities carried out by other members of the group (where no evidence connected either accused to knowledge of those crimes) was admissible
  • Whether the probative value of that latter category of evidence was outweighed by the risk of unfair prejudice under s 137 of the Evidence Act 1995 (NSW)

Decision

Hamill J ruled that evidence of the accused's membership of the Burwood Rebels and their close association with Sultani was relevant and admissible. Because the prosecution's case depended on establishing that both accused obeyed Sultani's direction to participate in the attack, evidence capable of showing the nature and closeness of that relationship was directly probative of a fact in issue.

Evidence of Sultani's control over group members, including an account of him directing a member to purchase fish burgers at McDonald's as an illustration of his authority, was also admitted. The judge found this evidence relevant because demonstrating the degree of Sultani's control helped explain why the accused would have followed his direction to participate in the assault.

By contrast, evidence of criminal activities carried out by other members of the group was refused. There was no evidence that either accused knew of those crimes. Without that foundation, the evidence could not rationally affect the probability of any fact in issue, and its capacity to cause unfair prejudice to the accused was significant. The court applied ss 55 and 137 of the Evidence Act 1995 (NSW) in reaching that conclusion.

The judgment also delivered a rebuke to both parties over the delay and poor communication that allowed this dispute to surface only days before trial. Hamill J described the process as "unsatisfactory" and noted that listing pre-trial issues so late wasted court time and created unnecessary disruption.

Orders Made

  • Evidence of the accused's association with Sultani and membership of the Burwood Rebels: admitted
  • Evidence of Sultani's control over group members (including the McDonald's fish burger incident): admitted
  • Evidence of criminal activities of other group members (where no connection to either accused's knowledge was established): refused
  • Certain specific paragraphs of witness statements identified in the judgment: allowed or refused on a paragraph-by-paragraph basis
  • Evidence that club fees collected by one accused went into a fund for legal fees if members were charged: not admissible
  • Prosecution did not press various other identified paragraphs

Key Takeaways

  • Evidence of an accused's membership in a criminal group and close relationship with an alleged organiser is admissible where the prosecution case depends on showing the accused acted on that organiser's direction.
  • Under ss 55 and 137 of the Evidence Act 1995 (NSW), evidence of criminal conduct by other group members is not automatically admissible against an accused simply because they belonged to the same group; the prosecution must establish that the accused knew of those activities before such evidence can rationally bear on a fact in issue.
  • Illustrative evidence of a group leader's control over members (even apparently trivial examples) may be admissible where that control is central to the prosecution's theory of how the offence was committed.
  • Delayed service of voluminous disclosure material and a failure by parties to communicate meaningfully about evidentiary objections before trial drew explicit criticism from Hamill J, who described the outcome as a waste of court time.
  • Relevant principles were drawn from a line of New South Wales criminal association cases including R v Quach, R v Cornwell, Elomar v R, and Qualteri v R, confirming the established framework for assessing the admissibility of relationship and tendency evidence in joint criminal enterprise prosecutions.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 132
- Evidence Act 1995 (NSW), ss 55, 97, 137

Cases
- Elomar v R; Hasan v R; Cheikho v R; Cheiko v R; Jamal v R [2014] NSWCCA 303; (2014) 316 ALR 206
- Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
- Qualteri v R [2006] NSWCCA 95; 171 A Crim R 463
- R v AN [2000] NSWCCA 372; (2000) 117 A Crim R 176
- R v Baines; R v Danishyar (Supreme Court (NSW), Fagan J, 10 December 2020)
- R v Cornwell (2003) 57 NSWLR 82; [2003] NSWSC 97
- R v Ngatikaura [2006] NSWCCA 161; (2006) 161 A Crim R 329
- R v Quach [2002] NSWCCA 519; (2002) 137 A Crim R 345
- R v Sukkar [2005] NSWCCA 54