Director of Public Prosecutions v Dieni
[2019] VCC 2259
•29 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 18-01293
CR 18-01294
CR 18-01295
CR 18-01317
DIRECTOR OF PUBLIC PROSECUTIONS
| v |
| NICHOLAS GEORGIOU CHRISTOPHER RAYDAN ANTHONY DIENI ABDUL ELABED |
---
JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 March 2019 | |
DATE OF RULING: | 29 April 2019 | |
CASE MAY BE CITED AS: | DPP v Dieni & Others | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2259 | |
REASONS FOR RULING
---
Subject:CRIMINAL LAW – Application for Severance
Catchwords: IBAC investigation – Attempt to Pervert the Course of Justice – Trafficking Drug of Dependence – Multiple Accused – Joinder – Separate Trials - Unfair prejudice – Cross-admissibility– Risk of swamping the jury – Balance of Convenience – Uncertainty of trial
Legislation Cited: Criminal Procedure Act2009 (Vic)
Cases Cited:R v Demirok [1976] VR 244 – R v Jones and Waghorn (1991) 55 A Crim R 159 – R v Iaria [2004] VSC 110 – Young & Ors v R [2015] VSCA 265
Ruling: Grant the application of Messers Georgiou, Elabed and Raydan that their charges be heard separately from those of Mr Dieni and from each other.
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | MS R. HARPER | Office of Public Prosecutions |
| For Mr Georgiou | MR P. STEFANOVIC | Vassis & Co |
| For Mr Raydan | MR T. SAWYER | Valos Black & Assoc |
| For Mr Dieni | MR TIEN | Yang and Vale |
| For Mr Elabed | MS D. PRICE |
HER HONOUR:
Summary
1 This is an application for separate trials made by 3 accused[1] currently listed in a joint trial which was to commence on 29 April 2019. While properly joined on the one indictment, the issue is whether I should exercise my discretion to separate these accused from each other and from a fourth accused, Anthony Dieni.
[1]Application was originally made by an additional co-accused, Lambrose Violatzi, however his matter has now resolved.
2 The 3 accused, Nicholas Georgiou, Abdul Elabed and Christopher Raydan, are each charged with offences of Attempting to pervert the course of justice with Mr Dieni. They are also charged with trafficking various drugs to Mr Dieni. They are not the subject of any charge jointly with each other.
3 The charges arose as a result of an investigation by members of the independent broad-based anti-corruption commission (IBAC) into the activities of Mr Dieni and the St Paul’s Rehabilitation Prevention service.
4 Mr Dieni was the coordinator of and a counsellor for St Paul’s. In that capacity he regularly became involved in bail agreements and community corrections orders in the Magistrates’, County and Supreme Courts of Victoria, supporting accused in their applications for bail or at sentencing hearings. The allegations broadly are that he utilised his position to manipulate, mislead and undermine various court processes and outcomes, and to receive various illicit drugs from clients or their associates.
5 Mr Dieni was the target of the IBAC investigation. Telephone numbers used by him were made subject to telephone intercepts. He was the subject of physical surveillance. Messers Georgio, Elabed and Raydan each came into focus as a result of telephone intercepts and surveillance of Mr Dieni.
6 There is no issue taken by any of the accused with the fact that they were the user of relevant telephone number/s or that they are the participant in the various phone conversations attributed to them.
7 Each of the three accused denies the offending. The issues in the trial will centre around the interpretation of, and inferences to be drawn from things said in those conversations by either Mr Dieni and or the individual co-accused, and from observations made through physical surveillance.
The allegations
Nicholas Georgiou
8 Mr Dieni gave evidence at Mr Georgiou’s bail application in December 2016 to the effect that he had assessed Mr Georgiou, and would supervise and conduct counselling with him if granted bail. He undertook to contact the informant if Mr Georgiou returned positive drug tests or failed to comply.
9 The allegations against Mr Georgiou are that he did not comply with the conditions of his bail including that he did not attend counselling, continued to use drugs and further that he discussed with Mr Dieni his ongoing drug use and ways to avoid its detection.
10 On 21 August 2017 Mr Dieni attended a plea hearing for Mr Georgiou where submissions were made to the effect that Mr Georgiou had remained drug free and had seen Mr Dieni for counselling. Mr Georgiou was ordered to undertake a CCO.
11 It is alleged that on 5 July 2017 Mr Dieni arranged to purchase cocaine and ice from Mr Georgiou in exchange for covering for him.
Abdul Elabed
12 Mr Elabed was granted bail on 30 May 2017 on conditions including a curfew and not to use drugs of dependence.
13 The allegation is that between July and August 2017 Mr Dieni advised Mr Elabed how to avoid positive urine screens and arranged for provision of urine by other persons which Mr Elabed could then submit as his own. Further that he advised him how to avoid breach of bail when he was intercepted by police beyond curfew hours, and about using a doctors’ certificate to address an occasion when Mr Elabed failed to sign in as required by his bail.
14 Mr Elabed is charged with three charges of trafficking cocaine to Mr Dieni on 16 July 2017 and on two occasions in August 2017.
Christopher Raydan
15 Mr Raydan appeared in Melbourne Magistrates’ Court on 7 June 2017 and was sentenced to a community correction order. Conditions included that he undergo treatment and rehabilitation for drug abuse and return for judicial monitoring.
16 The allegation is that he agreed to mislead Corrections Victoria and/or the Magistrates’ Court as to his compliance with the conditions of the order, namely that he had been attending Mr Dieni for counselling.
17 Mr Raydan is also charged with trafficking methyl amphetamine to Mr Dieni on one occasion in August 2017 and trafficking cocaine to him between June and September 2017.
Mr Dieni – Additional Charges
18 In addition to the charges relating to these three co-accused, Mr Dieni faces an additional six charges of attempting to pervert the course of justice in relation to his dealings with a number of other persons. The allegations in those matters include: other incidents of organising the provision of clean urine for persons attending his services; giving false evidence on their behalf in plea and bail hearings; failing to require compliance with conditions of bail, including attending counselling and completing drug screens; facilitating interaction between co-offenders where bail required non-association; failing to report breaches of bail, including use and trafficking of drugs of dependence, failure to undertake drug screens, failure to attend drug rehabilitation sessions and the use of fake urine samples; providing a delayed and false report on an accused’s compliance with bail conditions; and misleading Corrections Victoria as to an offender’s compliance with a community correction order. He also faces 5 charges of trafficking various drugs of dependence. The indictment contains a total of 25 charges.
Joinder
19 The joinder of multiple charges and accused on an indictment is a decision for prosecuting authorities.
20 The presumption under s.170 of the Criminal Procedure Act 2009 is that multiple charges against an accused and multiple accused properly joined must be tried together unless the court orders a separate trial.
21 There was no issue that the accused have been properly joined on the one Indictment.
Power to order Separate Trials
22 On behalf of each accused the application to displace the presumption under s.170 is made pursuant to s.193 of the Criminal Procedure Act 2009. Each accused relied on the same arguments and so I will refer to the arguments jointly.
Defence Submissions
23 Each accused relied specifically on s. 193(2) and the pre-conditions in s.193(3)(b) namely that a trial with Mr Dieni would prejudice the fair trial of the accused; and (3)(c) the broad power of the court to order separate trials ‘for any other reason.’
24 The burden is on each accused to persuade me that I should exercise my discretion in their favour.
25 Each accused referred to the decision of the Court of Appeal in R v Demirok[2] wherein the public interest considerations which weigh in favour of a joint trial were outlined. They are well known but worth repeating –
The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.[3] [emphasis added]
[2]R v Demirok [1976] VR 244
[3] Ibid at paragraph 254
26 The same court detailed cases wherein the application of those general principles may be displaced –
Essentially, an accused man is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him is admissible evidence and that he is not exposed to prejudice by the introduction against him of material which is irrelevant or, in some situations, only marginally relevant. … the result may nevertheless have been to expose the accused man to a conviction influenced by material which was both inadmissible and highly prejudicial. In such a situation, we think that it is not satisfactory to say that, the rules governing trials having been observed, there has been no miscarriage of justice. To do so is to elevate the rules above the end which they are designed to produce. The miscarriage lies in the fact that, despite the correct application of the various rules, the trial has not been of the kind which those rules are intended to produce.[4]
[4] Ibid at paragraph 255-6
Prejudice
27 The three accused argue that they will suffer unfair prejudice if the charges against them are heard with the charges against Mr Dieni.
28 They argue that the volume of material against Mr Dieni will overpower or tend to swamp the jury’s consideration of the evidence regarding the individual accused.
29 Further, that the evidence against Mr Dieni in relation to the charges which do not concern them individually is not cross-admissible. Therefore that volume of evidence will introduce material which is inadmissible against them, irrelevant and unfairly prejudicial into their trial.
30 In addition, there is no cross-admissibility as between these accused and each other.
31 They each submit that the allegations against their individual clients are based on a discrete set of facts, within a small timeframe, and refer to a small number of telephone intercepts. In contrast the allegations against Mr Dieni are broad ranging, relate to multiple dealings with a number of persons over the course of approximately 9 months, and encompass the bulk of the intercept and surveillance material.
32 Each of the accused submit that the allegations against them are distinct – that is, for example where the allegation is that Mr. Elabed was involved in using another person’s urine, no such allegation is made against Raydan.
33 They submit given the extent and nature of the evidence pertaining to Mr Dieni, the prejudice against their clients is incurable by directions.
Balance of Convenience
34 Secondly, the accused argue that the public interest considerations outlined in Demirok in this case fall in favour of separating the trial.
35 Firstly, time taken for the trial of Mr Dieni will be far longer than the trial for them individually. Separating them from the Mr Dieni trial will shorten that trial, albeit only somewhat. A separate trial on their charges alone will be of short compass.
36 Secondly in this case the risk of inconsistent verdicts is not a real consideration. The co-accused are not joined in any one charge. There is no relationship therefore between the verdict regarding one of these accused and the other.
37 Where they are jointly charged with Mr Dieni a jury may reach different verdicts as between them and him, but there are a number of conceivably rational bases for so doing.
38 Thirdly, while finality of litigation is desirable, the individual trials could proceed immediately following the Dieni trial and in this sense there would not be undue delay.
39 Fourth, witnesses in this trial are largely investigative officers or other professional witnesses. The usual considerations applicable to civilian witnesses do not apply.
Prosecution Submissions
40 The Prosecution argue that there is no real risk of incurable unfair prejudice in this case. They say the facts alleged against any individual co-accused are simple and contained, and therefore will be readily understood by a jury and delineated from the case against Mr Dieni. Further, any prejudice can be cured by jury directions. They say the statutory presumption is not displaced here.
41 Further they point to the fact that the Dieni trial will not be shortened to any real extent by removal of the other accused. In addition, 3 further trials will greatly add to the expenditure and use of resources required. 48 jurors will be required rather than 12.
42 They point to the fact that the evidence on the separate trials will be identical to the evidence led on the corresponding charge on Mr Dieni’s trial.
43 They say there is a risk of inconsistent verdicts if the matters are heard separately.
Analysis
44 I accept that the joinder of these accused with each other and with Mr Dieni is properly made.
45 I accept the statutory presumption is that the co-accused be tried together. That presumption may be displaced if one of the pre-conditions in s.193(3) is met and the accused would be denied a fair trial.
46 That general rule will be displaced where there is a significant amount of evidence implicating one accused but which is irrelevant and highly prejudicial in the trial of another.[5]
[5] See for example R v Jones and Waghorn (1991) 55 A Crim R 159 at paragraph 164; R v Iaria [2004] VSC 110 at paragraph 22
47 The bulk of evidence in this trial will relate to Mr Dieni. The period of alleged offending against him is between 22 December 2016 and 12 September 2017. The depositions run for some 10,000 pages, with the bulk of telephone intercept material pertaining to him.
48 It was not contended by the Crown that any of the evidence relating to either (a) other charges against Mr Dieni, or (b) charges against other co-accused, was cross-admissible as against the particular co-accused. Indeed, the prosecution submitted that “The offending alleged to have been committed by the accused seeking severance is siloed from each other and the remainder of Mr Dieni’s alleged offending.”[6] [emphasis added]
[6]Prosecutions Submissions on Severance dated 20 March 2019 at paragraph 8
49 That argument was advanced in support of a contention that because the charges against an individual co-accused are neatly contained to a set of discrete facts, a jury will readily be able to comply with directions to separately consider them. There is some appeal in that argument, however it ignores the fact that the jury will still be exposed to a great deal of evidence which is irrelevant and prejudicial.
50 In my view there is a risk that such evidence will do two things: One, it may overwhelm them in their consideration of the individual accused. Two, it has the potential to improperly bolster an otherwise weak allegation.[7]
[7]Young & Others v R [2015] VSCA 265 at paragraph 37
51 That is, where the defence submission to the jury will relate to interpretation of intercepts and inferences to be drawn, they may inadvertently draw those inferences based on Mr Dieni’s dealings with other persons, or based on the dealings of a co-accused with Mr Dieni. The different, but similar nature of the allegations may lead them to a type of impermissible coincidence reasoning.
52 Alternatively, they may conclude guilt by association. They may draw conclusions as to interpretation of words said or observations made based on the broader evidence, or on their conclusions pertaining to the multitude of allegations against Mr Dieni. In that sense, the individual accused may be unfairly prejudiced in his defence.
53 In my view there is a real risk here of unfair prejudice to each accused.
54 I have given consideration to whether such prejudice can be cured by appropriate directions.
55 I am mindful that juries are human and cannot be expected to perform super-human tasks of mental gymnastics.
56 Although we entrust juries to follow directions, in a trial of some 6-8 weeks where the bulk of evidence will concern Mr Dieni and a very small portion the other accused, it is unrealistic to expect them to be able to put that material from their mind. The risk of being unconsciously influenced by that material is real.
57 I do not believe separate consideration or anti-propensity directions can cure that risk in this trial.
58 In relation to the issues of public interest, I accept the submissions made on behalf of the defence that in this case those issues also fall in favour of separating the trials.
59 In relation to the issue of time and the administrative matters associated with running separate trials, I note the following. The joint trial would largely be concerned with the allegations against Mr Dieni. There would be undue expense for the other accused to be participating in a trial of some 6-8 weeks duration where only several days concern them.
60 The financial burden of a lengthy trial is considerable. A separate trial for each of the other accused would be of relatively short duration, possibly within 5-7 days each.
61 In this case there is an additional consideration regarding Mr Dieni’s health. He is a man who had a diagnosis of lung cancer late in 2018. He underwent surgery to remove part of his right lung in December 2018. There are diagnostic question marks surrounding his left lung which were unresolved as at 10 April 2019.
62 He also suffers ischaemic heart disease, diabetes and pre-existing lung disease by way of emphysema. While currently under observation, his prognosis is said to be unclear. His oncologist Dr Herath states he is at risk of recurrence of cancer. According to the medical material available to date, his life expectancy seems shortened by these conditions.
63 There has been ongoing consideration of Mr Dieni’s diagnosis and prognosis by both his medical and legal teams. It has been proposed by his oncologist that while he is medically well enough to attend a trial, he should be allowed to take rest breaks during the day of approximately 30 minutes up to 1 hour. In a letter dated 11 April 2019Dr. Herath states “The frequency of breaks will depend on his symptoms, but he may require approximately 4 to 6 breaks during a full day. Alternatively, fewer breaks with shorter days would also be acceptable.”
64 There is no criticism of Mr Dieni for that situation, however it does mean there is a real risk of lengthening the trial, of possible interruption to it, and of further delay.
65 These matters also relate to my consideration of finality. Finality for Messers Georgiou, Elabed and Raydan may not be achieved if they remain in a trial with Mr Dieni given the risk of interruption or necessary delay caused by his ill health.
66 I accept the submissions made by defence counsel regarding the prospect of inconsistent verdicts.
67 This is not a case with a central question about credibility or reliability of a prosecution witness where separate juries may reach different and inconsistent conclusions on such issues.
68 The possibility of different verdicts exists as between each accused and Mr Dieni, but may arise due to rational considerations of the evidence. It does not exist as between these accused and each other given the separate and distinct nature of allegations against them.
69 I accept that the convenience of witnesses in this trial is very different to trials involving a large number of civilian witnesses. Much of the evidence will relate to playing telephone intercept material or surveillance material. I expect much of that can be done by agreement.
70 Further, although mindful of the unhappy lot of witnesses in criminal trials, this is not a case where a witness will be repeatedly subject to cross examination on issues of their own credit or reliability.
71 In all the circumstances of this case, I am satisfied that there is a risk of unfair prejudice if Messers Georgiou, Elabed and Raydan remain joined to Mr Dieni. I do not believe such prejudice can be cured by direction.
72 I am also satisfied that the public interest factors which ordinarily point to a joint trial, in this case fall in favour of separate trials.
73 I propose to grant the application of Messers Georgiou, Elabed and Raydan that their charges be heard separately from those of Mr Dieni and from each other.
And I so rule.
0
2
0