Director of Public Prosecutions v Formosa (Ruling 1)

[2018] VCC 774

fcrosse

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-17-01096, CR-17-01098

Director of Public Prosecutions

v

Patrick Formosa

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2018
DATE OF RULING:	24 April 2018
CASE MAY BE CITED AS:	DPP v Formosa (Ruling 1)
MEDIUM NEUTRAL CITATION:	[2018] VCC 774

REASONS FOR RULING
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Subject:  
Catchwords:   Ruling – Severance -
Legislation Cited:  Criminal Procedure Act 2009 (Vic)
Cases Cited:  Young & Ors v The Queen [2015] VSCA 265
Ruling:  The application for severance is granted  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P D’Arcy with Ms M Brown	Office of Public Prosecutions
For Accused Formosa	Mr C. Pearson
For Accused Inusah	Mr S. Andrianakis

HER HONOUR:

1       I am considering two applications. The first is that by Mr Formosa for severance of his trial from that of his co-accused, Mr Inusah. Each of them is charged with trafficking in a drug of dependence (1,4 Butanediol) in a commercial quantity. The second application is that by Mr Inusah for severance of his trial from that of Mr Formosa and Mr Obian.

Mr Formosa’s application for severance

2       The charge against Mr Formosa and Mr Inusah turns on their alleged conduct after 5.17am on 14 June 2016 at Public Self Storage unit 1590 at 7 Ashley Street, Braybrook. The relevant events are described in the Summary of Prosecution Opening dated 1 September 2017.[1]

[1] 2017 at paragraphs 86-90, 101-107

3       

The prosecution case is that, with Mr Inusah as his passenger, Mr Formosa drove a Townace van registration number FJI833 (“the Townace”), through the security gates and into the Self Storage facility at 5.17am, behind another van, van registration number YZP805 (“the other van”). At the time that these vans drove through the gates, there was a Corolla parked on Ashley Street close by. The other van parked in front of storage unit 1590. The Townace then moved to park next to the other van. The driver of the Corolla then exited the vehicle and entered the security gate on foot. It is alleged that Mr Formosa and

Mr Inusah began assisting the other accused (Moustafa, Omer, Obian and Bchinnati) in moving boxes from storage unit 1590 into the other van.

4       At 5.30am the other van, driven by Moustafa with Omer as passenger, reversed out of the premises, while the Townace moved off in convoy behind it.

5       Police moved toward the two vans as they exited the Public Self Storage facility. As they attempted to intercept both vehicles, the Townace sped up, crossed to the other side of the road to evade police. At 5.35am, the Townace entered the driveway of premises located at 15 Derrimut Rd, Albion (an address which is unrelated to any of the accused referred to above) and parked. Two people then got out of the Townace and walked west along Derrimut Road. Shortly thereafter, Mr Inusah and Mr Formosa were arrested at the intersection of Adelaide and Lawson Street, Albion, which is approximately 220 metres away from where the Townace was parked. A subsequent search of the Townace located a firearm in the rear of the vehicle, and enquiries also revealed that the Townace was listed as having been stolen. Investigators located and seized from the other van a number of containers containing 1,4 Butanediol.

6       In the Defence Response filed on behalf of Mr Formosa on 7 February 2018, Mr Pearson disputed that there is any admissible evidence that Mr Formosa was a person who was present at Public Self Storage at 5.17am on 14 June 2016. If Mr Formosa is found to have been present on that occasion, the Defence Response identified the remaining issue as concerning his knowledge as to the contents of the boxes alleged to have been moved on that evening.

7       It is noted that upon his arrest, and following, Mr Formosa made no admissions as to having been in the Townace. Further, there is no evidence as to what he was wearing at the time of his arrest, nor any forensic evidence (either fingerprint or DNA) connecting him to the Townace or to any of the contents of that van. Finally, he participated in an entirely “no comment” record of interview.

8       The independent evidence (apart from what is in Mr Inusah’s record of interview) relied upon in support of the allegation that Mr Formosa was one of the people in the Townace when it parked at the storage unit, was that he got out of the Townace at Public Self Storage, that he helped move boxes from the storage unit into the other van, that he was one of the two people who drove away from the storage unit in the Townace, that he was one of the people who was present in the Townace when it was parked in Derrimut Street, and that he then exited from that Townace before being apprehended by police, comes from two sources: police officers engaged in the pursuit and surveillance of the vehicles, and CCTV footage at Public Self Storage. I note that at the hearing of the application, counsel for the prosecution asserted that there was additional surveillance material in the depositions, and has since provided a list of relevant references to relevant surveillance to the defence and to the Court.  

9       

If the trials proceed jointly, the jury would hear that, in his record of interview, Mr Inusah admitted his own presence at Public Self Storage and admitted that Mr Formosa was with him. The extent of the admissions concerning Mr Formosa are set out at paragraph 124 of the Prosecution Opening. In essence, Mr Inusah stated he had run into Mr Moustafa earlier in the evening, who had requested that he obtain a van for the purposes of moving some goods from storage. Mr Inusah was on his way to Mr Formosa’s house at the time and so asked Mr Formosa to see if he could find a van. Mr Formosa obtained a van later in the night through one of his friends. Mr Inusah stated that he took Mr Formosa to collect the Townace, then dropped his own car back at

Mr Formosa’s house. Mr Inusah and Mr Formosa then drove to the storage facility and helped Mr Moustafa move boxes from the storage unit to the other van, but did not put any boxes into the Townace. Mr Inusah stated that he did not believe Mr Formosa knew Mr Moustafa. Mr Formosa was driving the Townace as they left the storage facility, and when they saw police he suddenly sped off, yelling and swearing, then eventually stopped in the street and told

Mr Inusah to get out.

10      Counsel for Mr Formosa submitted that what Mr Inusah said in his record of interview concerns not just the identification of Mr Formosa (which is in issue) but also the role of Mr Formosa in obtaining the van, being the driver, moving the boxes and so on. Whilst the contents of this record of interview, subject to any agreed edits, are undoubtedly admissible against Mr Inusah, it was submitted they are inadmissible against Mr Formosa. Further, it was submitted, what Mr Inusah said in his record of interview concerning Mr Formosa, beyond his presence, is irrelevant and highly prejudicial to Mr Formosa.

11      It was also submitted that what Mr Inusah says in his record of interview bolsters a weak case against Mr Formosa in such a way that, in a joint trial, the jury would be unable to give effect to separate consideration directions and would inevitably conclude that Mr Formosa’s presence at Public Self Storage is established.

12      Finally, it was submitted, the prejudice to Mr Formosa cannot be cured by the giving of appropriate directions.

13      Counsel for the prosecution submitted that there is independence evidence, that is, surveillance evidence, establishing that Mr Inusah and Mr Formosa were the two men who arrived and left the storage facility in the Townace and that there were no opportunities for the occupants of the Townace to change between leaving the storage facility and the Townace parking on Derrimut Street.

14 The legal principles applying to this application are well settled. The general rule is one which favours joint trial of co-accused,[2] and which recognizes that prejudice associated with inadmissible material can usually be cured by appropriate directions. However, where there is a real possibility that evidence which is powerful in the case in which it is admissible impermissibly bolsters what is otherwise a relatively weak prosecution case against another accused in which the same evidence is inadmissible, and this cannot be cured by judicial direction, there will be a risk of a substantial miscarriage of justice arising out of a joint trial of the applicant with the co-accused.[3] In these circumstances, it may be appropriate to order separate trials.

[2] Section 170(2) of the Criminal Procedure Act 2009 (Vic) creates the presumption of joint trial

[3]Young & Ors v The Queen [2015] VSCA 265, 37

15      It is clear that the statements by Mr Inusah concerning Mr Formosa in his record of interview which detail Mr Formosa’s presence at the storage facility in the Townace as well as his conduct whilst there and when leaving the facility, would be highly prejudicial to Mr Formosa’s case.

16      Putting that evidence to one side for a moment, I have considered the remaining evidence – the CCTV footage and the surveillance evidence - to be adduced by the prosecution concerning this issue.   

17      

On the CCTV footage, one can see the Townace enter the security gates of the storage facility directly behind the other van and park next to that other van. This entry was also observed by surveillance operatives. As the Townace goes through the security gates, it is possible to discern from the CCTV footage that a driver is wearing an orange high visibility shirt or jacket and the passenger is wearing a yellow high visibility shirt or jacket. There is no evidence elsewhere in the depositions of those items of clothing being found by police later in the night nor any evidence from police as to what Mr Formosa and Mr Inusah were wearing at the time they were apprehended. As to what any of the people present at the storage facility did, the CCTV footage shows some movement and some people moving around the back of the other van, possibly suggesting that material was being moved between the storage facility and the other van. It is impossible to discern how many people are there and who they are, or what each of them is doing. It is impossible to see which men get back into which van before the two vans leave the premises. In his statement dated

23 November 2016[4], Detective Sergeant Carlin-Smith stated that he observed a second Toyota van attend the storage facility and two men exit from that who began assisting the other males move boxes from the storage facility and place them into the other van.

[4] Statement of Detective Sergeant Ashley Carlin-Smith, Depositions 263

18      CCTV footage depicts two white vans exiting the public storage facility in convoy and this is supported by the statements of Carlin-Smith and Detective Leading Senior Constable Reiche[5] as well as surveillance logs relating to other operatives present.[6] When the two vans left the storage facility, they were pursued by two police cars. The Townace was pursued by Reiche and Carlin-Smith (with Reiche as the driver). The pursuit took the Townace, followed by Carlin-Smith and Reiche, past the Sunshine Police station, where Carlin-Smith and Reiche terminated their pursuit because other surveillance operatives overtook them and assumed control of the pursuit. According to Reiche’s evidence at committal, at the time that the other surveillance operatives overtook her, she could still see the Townace and that Carlin-Smith had been told over the radio that surveillance operatives had maintained sight of the Townace.[7]  At committal, a note from Carlton-Smith’s diary on the night was read into evidence: “Dogs observe van drive into 15 Derrimut Street from bay (two offenders) and abandon van and turn into Adelaide street and walk towards Ballarat Rd.”[8] Carlin-Smith clarified that the term ‘dogs’ is a reference to surveillance operatives.

[5] Statement of Detective Leading Senior Constable Brigitte Reiche, Depositions 259

[6] Statement of Surveillance Operative 030, Depositions 858; Statement of Surveillance Operative 116, Depositions 886

[7] Transcript of Committal Hearing on 18 April 2017, Depositions 67

[8] Transcript of Committal Hearing on 18 April 2017, Depositions 76

19      Both Carlin-Smith’s and Reiche’s evidence at committal was that neither of them had seen any surveillance log or report concerning the movements of the Townace on that night, nor could they identify the surveillance operatives who took over the pursuit.  

20      There is a surveillance log note to the effect that operatives maintained surveillance of the Townace at 5:31am and then at 5:35am that they observed the Townace park at Derrimut Street and two men exit the vehicle and move on foot north-west bound on Derrimut Street, and further at 5.40 am that an arrest situation was to occur in relation to the two unknown persons.[9] I note that the relevant operatives have not to date provided evidence as to the meaning of those notes. It was agreed by the Informant, Detective Senior Constable Fraser, in cross-examination at committal, that no statements by these surveillance operatives had been made.[10]

[9] Statement of Surveillance Operative 116, Depositions 886-887

[10] Transcript of Committal Hearing on 16 May 2017, Depositions 219

21      Carlin-Smith and Reiche then drove to the location of the two men given to them by surveillance operatives, saw the two men walking, pulled up alongside them, and engaged in conversation with them which led to Mr Formosa and Mr Inusah identifying themselves.

Conclusion

22      

Mr Inusah’s record of interview squarely places Mr Formosa at the scene of the alleged offending. The first plank of Mr Formosa’s defence is that the prosecution is unable to prove beyond reasonable doubt that he was at the scene of the alleged offending. I consider that in a joint trial, evidence of

Mr Inusah’s assertions as to Mr Formosa’s presence and involvement on that night when considering the question of identification, would overwhelm

Mr Formosa’s defence. In these circumstances, I consider there to be a very real risk of substantial unfair prejudice flowing from the jury impermissibly using Mr Inusah’s record of interview to bolster the prosecution case based on the independent evidence concerning the identification of Mr Formosa. I consider that this risk is so great that it would not be curable by direction, regardless of the strength of that direction.

23      

For this reason, I consider it in the interests of justice that the prima facie position of a joint trial be displaced. Accordingly, I order a separate trial for

Mr Formosa.

Mr Inusah’s application

24      

In light of my conclusions concerning Mr Formosa’s application, and in recognition of the concessions made by Mr Formosa’s counsel that there was no exception taken to a joint trial of Mr Formosa and Mr Obian, it is unnecessary for me to determine Mr Inusah’s application for a separate trial from both

Mr Formosa and Mr Obian.

25      I will hear from counsel as to the appropriate orders to be made in the light of this ruling.

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