Director of Public Prosecutions v Falzon
[2016] VSCA 122
•27 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0046
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| SUSAN FALZON | Respondent |
---
| JUDGES: | WARREN CJ and OSBORN JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 April 2016 |
| DATE OF JUDGMENT: | 27 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 122 |
| JUDGMENT APPEALED FROM: | Director of Public Prosecutions v [RM] and Falzon and [BT] [2016] VCC 2 (Judge Lewitan) |
---
CRIMINAL LAW – Interlocutory appeal – Review of a refusal of trial judge to certify that the decision of sufficient importance to justify its determination on an interlocutory appeal – Respondent charged with cultivation and trafficking of Cannabis L and other related offences – One of co-accused the respondent’s husband – Trial judge ordered the respondent be tried separately from co-accused – Whether risk of unfair trial if tried together – Whether the exercise of the trial judge’s discretion open – Application refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Y K Hardjadibrata | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr R Edney | Stary Norton Halphen |
WARREN CJ:
OSBORN JA:
The applicant applies under s 296 of the Criminal Procedure Act 2009 for a review of the trial judge’s refusal to certify an interlocutory decision under s 295(3) so that an application for leave to appeal may be brought.
In the proceedings below, the trial judge granted an application made by the respondent for her to have a separate trial from her co-accused. Her Honour then refused to certify, under s 295(3)(b) of the Criminal Procedure Act, that her decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.
Background facts
The respondent and two co-accused, RM (the respondent’s husband)[1] and BT, were the subject of six charges relating to the cultivation and trafficking of cannabis and the theft of electricity, which were paraphrased by the trial judge as follows:
[1]All initials used in these reasons are pseudonyms.
1.[RM] and [the respondent], at Sunshine North and other locations in Victoria, between 24 July 2013 and 17 December 2013, cultivated Cannabis L in not less than a commercial quantity.
2.[RM] and [the respondent] at Sunshine North and divers other locations in Victoria, between 24 July 2013 and 17 December 2013, trafficked in Cannabis L in not less than a commercial quantity.
3.[RM] and [the respondent], at Sunshine North, between 24 July 2013 and 17 December 2013, stole electricity.
4.[BT] at Sydenham and Williamstown, between 15 August 2013 and 17 December 2013, cultivated Cannabis L.
5.[BT] at Sydenham and Williamstown, between 15 August 2013 and 17 December 2013, trafficked in Cannabis L.
6.[RM], [the respondent] and [BT] at Sydenham, between 15 August 2013 and 17 December 2013, stole electricity.
In the summary of prosecution opening,[2] it was alleged that, on the execution of search warrants on 17 December 2013 at four properties (two in Sunshine North sited contiguously, and one in each of Sydenham and Williamstown), police located quantities of cannabis plants growing in hydroponic cultivation systems. During a search on 31 December 2013 at a fifth property in Keilor East, a hydroponic cultivation system was located, but no cannabis plants.
[2]Dated 12 June 2015.
The Crown case was that surveillance conducted by police had revealed the attendance of RM, or motor vehicles registered in his name or that of the respondent, at those five properties. Further surveillance revealed the presence of various vehicles registered in the name of BT and a fourth co-offender, LK (not named on the indictment presently in issue), at one or more of the five relevant premises. A great deal of the surveillance evidence related to sightings of RM, LK, BT, the vehicles referred to above and vehicles registered in the name of BT at these locations. A portion of the surveillance evidence related specifically to sightings of the respondent herself near three of the properties (the two properties in Sunshine North on one occasion, and the property in Sydenham on one occasion).
The summary of prosecution opening further alleged that the respondent had said in an interview with police on 17 December 2013 that:
·she had attended the Sydenham property to clean it but that she had no knowledge of cultivation of cannabis at the address;
·she did not know that her husband co-owned the Sydenham property with BT;
·she would normally drive her car, a particular Mazda vehicle;
·she attended the one of properties at Sunshine North on about six occasions to visit one LK, that she observed ‘tubs and stuff’ sitting on the lounge room floor of that property and sometimes noticed a strange smell but minded her own business and did not assist in the cultivation of the cannabis;
·she had no knowledge of any drugs found at the Essendon address (where she resided with RM); and
·she had no knowledge of cash found at that address save for a $3,000 sum which was her savings.
RM made some admissions as to the cultivation of cannabis for his personal use or as a gift for friends but he denied trafficking cannabis.
It was alleged in the summary of prosecution opening that RM was a party to various joint criminal enterprises relating to the cultivation of cannabis plants at the five properties and the trafficking of cannabis cultivated at those properties. Although the respondent was only alleged to have been involved in the cultivation at the three properties referred to above, it was also alleged that she was involved in trafficking of cannabis, including cannabis cultivated at the other two properties. This charge was based in part upon the allegations that a large sum of money, some cannabis and other paraphernalia were found at the property in Essendon at which the respondent resided with her husband. There are other detailed matters alleged against each of the accused.
The respondent intends to plead not guilty to all charges against her.
The respondent applied to the trial judge for a separate trial under s 193 of the Criminal Procedure Act. The main argument advanced by the respondent’s counsel before the trial judge was that the evidence admissible against the respondent was significantly different from the evidence admissible against BT and RM. It was said that evidence would be adduced in a joint trial of the three accused that would only be relevant against RM and/or BT, and that this material contained admissions giving rise to prejudice of a sort that could not be cured by the usual directions given by a trial judge. Further, both RM and BT would be entering pleas of guilty to some of the charges contained in the indictment. It was said that the ‘guilt by association’ of a trial together of the husband and wife in the context of the significantly different evidence admissible against each of them and pleas of guilty to some charges by the husband could not be otherwise cured. The combination of these matters was said to result in any ensuing trial being unfair to the respondent.
Counsel for the Crown submitted that the evidence against the respondent was different, but not significantly so. He argued that any prejudice that arose in any of the matters raised by the respondent could be cured by the usual directions from the trial judge.
In her Honour’s ruling on the separate trial application,[3] the judge considered the charges and evidence with respect to each charge concerning the respondent, together with the applicable legal principles.[4] Her Honour then considered the Crown’s submissions against the separation of the trials.
[3][2015] VCC 2.
[4]Ibid [2]–[24].
In summary, her Honour concluded that a trial of the respondent with the two co-accused would prejudice a fair trial of the respondent because there was a real risk that ‘the judicial directions on separate consideration would be overwhelmed and “nullified” because of the different case[s] and different evidence’. Her Honour considered that ‘there is a real risk of the respondent being “swamped” by the overwhelming evidence against [RM]’. While the respondent was only alleged to be involved at three of the properties in respect of charge 1 alleging cultivation, the case against RM was much wider and concerned five properties. The case against RM involved substantially more probative surveillance evidence, a series of admissions, much more frequent interactions with other co-accused, including the purchasing with BT of the property in Sydenham, and further circumstantial evidence, in particular, the possession of keys to the other relevant premises. Her Honour considered there was a risk that it would be difficult for a jury to separate the cases between the respondent and RM even with appropriate directions.
In respect of charge 2 alleging trafficking, the judge formed the view that the evidence against the respondent was different from the evidence against RM in five respects.[5] There was a risk the jury would take into account evidence which was not admissible against the respondent. There was also a matter of potentially prejudicial evidence in the record of interview of RM concerning the cultivation of cannabis and the bypassing of electricity at one property, which would not be admissible against the respondent. The judge formed the view that the prejudicial impact of admissions made by RM in his record of interview could not be overcome by directions. Her Honour accepted an argument that the admissions by RM in his record of interview would unfairly ‘infect’ the trial of the respondent in all the circumstances, particularly given that RM and the respondent reside together as husband and wife and there was a risk of ‘guilt by association’.
[5]Ibid [32].
In respect of charge 3 alleging the theft of electricity at Sunshine North, similar considerations apply. In his record of interview, RM denied any involvement with the Sunshine North properties, but the summary of prosecution opening asserts that a set of keys found at the Essendon property were in a bum bag also containing a wallet within which were cards in RM’s name. These keys were identical to keys for the Sunshine North properties found in LK’s possession. Although the respondent had been seen near the Sunshine North property, she gave an exculpatory account for her presence there in her interview and there was no other evidence or admissions from the respondent that she was aware, or had possession, of the keys referred to above, other than the fact that they were found in the house in which she lived with RM.
In relation to the application for a separate trial from that of BT, charge 6 was the only overlapping charge between BT and the respondent. BT intended to plead guilty in front of the jury to the theft of electricity as part of a joint criminal enterprise with RM and the respondent. His record of interview contained prejudicial admissions concerning the cultivation of cannabis. There were no admissions to that charge in the respondent’s record of interview and the judge found that the evidence against her was ‘much more limited’. The judge considered that the prejudice to the respondent of being tried with BT would be substantial in circumstances where the jury would be asked to disregard BT’s admission by plea of guilty to that offence.
Her Honour considered the submissions fully, including whether there would be any inconvenience to witnesses having to give evidence more than once, and formed the view that the inconvenience of holding a separate trial was not as great as the potential for a substantial miscarriage of justice if the trials were not separated.
Subsequently, the judge heard an application to certify for an interlocutory appeal against her ruling pursuant to s 295(3)(b) of the Criminal Procedure Act. Her Honour refused to so certify.[6]
[6][2016] VCC 200.
The applicant seeks to review her Honour’s refusal on the following grounds:
1.The Judge erred in refusing to grant a certificate under section 295(3)(b) of that Act.
2.The decision to order that [the respondent] be tried separately from co-accused [RM] and [BT] is a decision of sufficient importance to the trial:
(a)The prosecution intended to run a joint trial of all three accused at the same time;
(b)The prospects of conviction or acquittal against [RM] and [the respondent] in respect of charge 1 (cultivate cannabis in not less than a commercial quantity) and charge 2 (traffick cannabis in not less than a commercial quantity), and any alternative charges, is affected by the decision to order separate trials;
(c)Two separate juries will now have to be empanelled to try the accused [the respondent] and the co-accused [RM] and [BT] that involves substantially the same evidence;
(d)The next hearing date of 2 May 2016 is the second listing of the trials of [the respondent] and co-accused [RM] and [BT] (which was set down at the conclusion of pre-trial argument on the application for a separate trial by [the respondent] on 27 August 2015) as no trial judge was available in the week commencing 24 August 2015 to hear the trial.
3.The decision to order separate trials is attended by sufficient doubt:
(a)There were a number of errors of law and fact identified in the grounds for leave to appeal against interlocutory decision (and which will be expanded upon in the appellant’s contentions) that demonstrate that the discretion to order separate trials miscarried.
On an application such as the present, this Court must consider whether the interlocutory decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal, and may only give leave to appeal if satisfied that it is in the interests of justice to do so, having regard to the matters set out in s 297(1) of the Criminal Procedure Act.
We have considered the materials before us, including the summary of prosecution opening, the judge’s reasons and the written submissions. Although the judge’s decision to order a separate trial may be considered an important one in the context of the respondent’s trial, we do not consider that it is of sufficient importance to justify it being determined on an interlocutory appeal. That is because it is not attended by sufficient doubt to justify the giving of leave to appeal,[7] in which regard we accept the written submissions for the respondent.
[7]McDonald v DPP [2010] VSCA 45 [15]–[17] (Ashley JA), [21] (Redlich JA); Wells v The Queen [2010] VSCA 100 [37] (Redlich JA).
As a starting point, the judge’s decision to order a separate trial is discretionary in nature and hence the principles in House v The King[8] apply. Nothing has been made out in the argument before us by the applicant that satisfies us that her Honour’s decision was wrong in accordance with the Housev TheKing principles. Having considered all the materials, we are not satisfied that the judge’s decision could be considered so unreasonable as to be outside the sound exercise of discretionary judgment.
[8](1936) 55 CLR 499.
We do not consider it appropriate to enter into great detail with respect to the evidence and the strengths and weaknesses of the case by the Crown against the two co-accused. However, we note that there are important differences between the case against the respondent and that against RM. The connection between RM and the relevant properties, on its face, seems much stronger than that against the respondent. Further, there are the admissions as to the circumstances in issue made by RM in his record of interview. The Crown submits that the admissions by RM and BT did not ‘inculpate the respondent’. However, the trial judge formed the view that there is a substantial risk they could nevertheless affect the fairness of her trial. There is no Housev TheKing error in that conclusion which would warrant interference by this Court. The same observation may be made with respect to the other submissions on behalf of the Crown. No basis has been made out to warrant interference with the exercise of her Honour’s discretion.
It follows that we do not consider that the judge’s decision to separate the trials is attended by sufficient doubt to justify the additional disruption to the respondent’s trial that the grant of leave to appeal would occasion. Although some efficiencies would ostensibly be gained if the respondent and the co-accused were tried together, this must be balanced against the prospect of the respondent succeeding in an appeal against conviction on the basis that a joint trial caused her unfair prejudice.
In the circumstances, we do not consider that it would be in the interests of justice to grant leave to appeal. We refuse the application accordingly.
We direct the provision of a copy of these reasons to the judge below, to any other judge presiding over the separate trial of the respondent, to the Crown and to the respondent through her legal representatives. These reasons must not be further distributed until verdicts have been entered in the trials of the respondent and the co-accused, or until this Court otherwise directs.
- - -
0
4
0