Director of Public Prosecutions v Kader (No 5)
[2022] ACTSC 322
•18 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Director of Public Prosecutions v Kader (No 5) |
| Citation: | [2022] ACTSC 322 |
| Hearing Date: | 9, 11 and 18 November 2022 |
| Decision Date: | 21 November 2022 |
| Before: | McCallum CJ |
| Decision: | The application is refused |
Catchwords: | CRIMINAL LAW – PRE-TRIAL APPLICATION – Application to sever indictment – whether refusal to sever would cause unfair prejudice and embarrassment to the accused – where evidence accepted to be cross-admissible – where refusal to sever would |
| lead to inability to elect for trial by judge alone | |
| Legislation Cited: | Crimes Act 1900 (ACT), s 264(2) Supreme Court Act 1993 (ACT), ss 68B, 68D |
| Cases Cited: | R v Bauer [2018] HCA 40; 266 CLR 73 Edwards v The Queen [1993] HCA 63; 178 CLR 193 De Jesu v R [1986] HCA 65; 22 A Crim R 375 |
| Parties: | Director of Public Prosecutions |
| Imran Kader (Accused) | |
| Representation: | Counsel |
| R Christensen SC (DPP) | |
| J Maher (Accused) | |
| Solicitors | |
| ACT Director of Public Prosecutions | |
| Hugo Law Group (Accused) | |
| File Numbers: | SCC 200 of 2021 |
| SCC 201 of 2021 | |
| McCallum CJ: |
1. Imran Kader is due to face trial next week on an indictment containing five counts alleging
sexual offences and three counts alleging offences of the kind referred to as
“administration of justice” offences. By application filed 31 October 2022, Mr Kader
seeks an order pursuant to s 264(2) of the Crimes Act 1900 (ACT) that the indictment be
severed so as to require separate trial of the sexual assault counts and the administration
of justice counts. This judgment determines that application.
2. The circumstances in which the application is brought may be summarised as follows.
The summary is drawn largely from the written submissions provided by the accused on
the hearing of the application.
3. The proceedings were listed for trial earlier this year, commencing on 21 February 2022.
After a trial that ran for some three weeks, the jury was unable to agree and was
discharged.
4. A retrial was initially scheduled for 5 July 2022. However, that trial did not proceed. The
hearing date was vacated after the accused was arrested in New South Wales on 2 July
2022 and charged with the administration of justice offences.
5. On 5 October 2022, the New South Wales charges were replaced by similar charges
brought in the Magistrates Court in the Australian Capital Territory. After ascertaining
that it was unlikely that those charges would be committed for trial to this Court in time
for the further trial due to proceed next week, the prosecution then determined to proceed
ex officio on those counts.
6. On 8 November 2022, the Director of Public Prosecutions filed the new indictment
containing all eight counts. That is the indictment the subject of the present application.
7. Submissions on the application were heard on 9 November 2022. One of the arguments
was that some of the offences on the indictment (the administration of justice offences)
were capable of being heard by a judge alone at the election of the accused, as allowed
under s 68B of the Supreme Court Act 1933 (ACT), whereas others (the sexual offences)
were required to be heard by a jury, each of those offences being an “excluded offence”
listed in schedule 2 to the Act. At that stage, however, the accused had not given
instructions in respect of any trial by judge alone.
8. As a result of that submission, it came to my attention that the effect of the addition of
the ex officio counts on a fresh indictment alongside the sexual offences was that the
accused had not had an opportunity to elect for a judge alone trial. The severance application was accordingly stood over to determine whether that question was purely
theoretical or whether it raised a real question of fairness.
9. On 17 November 2022, the accused made an election to be tried by judge alone for the
three administration of justice offences and that crystallised the issue. I subsequently
heard further submissions on 18 November 2022 and stood the matter over to today for
decision.
10. It is convenient first to deal with the issue of severance leaving aside the complication of
the accused’s right to elect to have some of the charges tried by judge alone. The
application was based on two grounds: first, that it would be unfairly prejudicial and
embarrassing to the accused to have the counts heard together; and secondly, that it
was otherwise desirable, to ensure a fair trial, that the indictment be severed.
11. The starting point is to consider whether the evidence of the administration of justice
offences would be cross-admissible with the evidence of the sexual offences. The
prosecution case at the original trial was based on events alleged to have occurred in
December 2019 after the accused and the complainant had been at a Christmas party
together. In short, the accused, who gave evidence at the first trial, accepts that there
was sexual activity that night, including sexual intercourse. However, he maintains that
all sexual activity was consensual.
12. The complainant gave evidence that she did not consent to any sexual activity with the
accused that night. Critical to the prosecution case on the issue of consent was the
complainant’s account of the circumstances in which she left the accused’s apartment.
She gave evidence that the accused threw her into a wall and pinned her against the
wall for a period of time.
13. That incident is the subject of a separate charge of common assault which will not be
determined by the jury but which has been transferred to this Court. In accordance with
s 68D of the Supreme Court Act, that charge will be determined separately after the
conclusion of the jury trial. It nonetheless remains a central part of the factual
circumstances relied upon by the prosecution.
14. During her evidence-in-chief interview, the complainant drew a diagram of the layout of
the apartment which included a red circle around the area where she said she was
thrown against the wall. In his evidence in the trial, the accused said, in response to
questions from his barrister, that it would not have been possible for the complainant to
have been pushed against the wall at the point indicated on her diagram because at the time of the alleged assault there was a large cabinet and also a large tub of dog food in
that location.
15. He later conceded in cross-examination that it would be possible for the assault to have
happened in the manner described by the complainant, but the fact is that his account
included sworn evidence that there was, at that time, a large tub of dog food in that
location. The dog accordingly became a central character in the case, so far as the
credibility of the complainant was concerned.
16. In cross-examination at the first trial, the accused gave evidence that the dog was not at
the house on the night of the alleged sexual assaults because it was in Newcastle with
a woman who, at that time, was the accused’s wife (now his ex-wife). He stated that the
dog was primarily living with him at that time but would go to Newcastle to be looked
after by his wife and that, when the dog travelled to Newcastle, it was not necessary for
the dog’s possessions, if I could put it that way, to go with the dog because, as the
accused said, “we’ve got a surplus of dog accessories.”
17. Before the original trial, police had approached the accused's ex-wife and obtained a
statement from her. At that time, she told police that she wished to limit her involvement
in the proceedings for a number of reasons.
18. Following the trial, police again spoke to the complainant’s ex-wife. She agreed to
participate in an interview. During the interview, amongst other things, she told police
that she had been working and living in Taree that year in premises where she was not
permitted to have a dog. For that reason, the dog stayed in Canberra with the accused
for most of the year. However, after her placement at Taree came to an end, the
accused’s ex-wife moved to Newcastle. At that point, the dog moved to live with her
fulltime. The prosecution sought by that evidence to contradict the accused's evidence
that the dog was still living with him but only visiting his ex-wife during that period.
19. On 29 June 2022, just days before the scheduled retrial, the accused’s wife’s statement
was served on the accused. The administration of justice offences are alleged to have
been committed after that event. The Director of Public Prosecutions sent the accused’s
legal representatives an email attaching proposed agreed facts which included the
following as a proposed agreed fact:
They shared a dog named Schnitzel that initially lived in Canberra with Dr Kader. When [the
accused’s ex-wife] moved from Taree to Newcastle in mid-2019, the dog Schnitzel moved to
Newcastle and lived with [the accused’s ex-wife].
20. The prosecution alleges that, after receiving a copy of his ex-wife’s statement, the
accused attempted to contact her by telephone. She would not accept his calls but
indicated in a text message that he could email her. In due course, the accused sent an
email which is the subject of one of the administration of justice charges, namely, an
allegation of aggravated perjury, the circumstance of aggravation being that the perjury
was alleged to have been committed with the intention of securing acquittal of the sexual
assault offences. The email in effect attempted to persuade the accused’s ex-wife to
provide further evidence that might be less incriminating for the accused. It included the
following statement: “[i]f you turn this email, the fact that I contacted you or the text
messages over to the prosecution I will clearly be convicted.”
21. The application invokes s 264(2) of the Crimes Act which relevantly provides:
If, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his or her defence because of being charged with more than 1 offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for 1 or more offences charged in an indictment, the court may order a separate trial of a count or counts of the indictment.
22. As already indicated, the first issue is whether the evidence of the administration of
justice offences would be cross-admissible in the trial of the sexual assault offences. It
was acknowledged on behalf of the accused that at least some of the evidence would be
cross-admissible. However, Mr Maher, who appeared for the accused, submitted that
that is not determinative. He submitted that, even if the evidence is admissible, there
might be prejudice and embarrassment to the accused in the prosecution of all matters
together such as to warrant severing the indictment.
23. The accused accepted that he bears the onus of establishing that the indictment should
be severed. That is a reflection of a fundamental aspect of the criminal justice system
which is that the prosecution brings the charges and determines the evidence it will seek
to adduce. Mr Maher submitted that, even if the evidence or part of it will be cross-
admissible, there is also a question as to the use to which the evidence might be put.
He submitted that, in this case, there would be a risk of improper use. Mr Maher relied
in this context on the decision of the High Court of Australia in R v Bauer [2018] HCA 40;
266 CLR 73 at [73] where the Court explained that the terms “prejudicial effect”, “unfairly
prejudicial” and “unfair prejudice” in the uniform evidence legislation each conveys
“essentially the same idea of harm to the interests of the accused by reason of a risk that
the jury will use the evidence improperly in some unfair way”.
24. The principal concern for the accused here is the charge of aggravated perjury. The
prosecution has foreshadowed that it will rely on the alleged false statements made at
the original trial, as revealed by the content of the accused’s email to his ex-wife, as
evidence of consciousness of guilt. That is, the prosecution will allege that the accused
gave false evidence about where Schnitzel’s belongings were at that time knowing that,
if he had answered the questions honestly, his answers would implicate him.
25. Mr Maher noted that several pre-conditions must be met before evidence of an asserted
lie can be used as evidence of consciousness of guilt in accordance with the decision of
the High Court of Australia in Edwards v The Queen [1993] HCA 63; 178 CLR 193. They
are:
(i) that the lie is deliberate;
(ii) that it relates to a material issue;
(iii) that the motive for the lie is a realisation of guilt and a fear of the truth;
(iv) (where relevant) that it is shown to be a lie by evidence other than that of an
accomplice who is to be corroborated, that is, by admission or by evidence from
an independent witness;
(v) the lie must be capable of being seen as indicating consciousness of guilt of the
specific offence for which the accused is charged.
26. Mr Maher submitted that the consciousness of guilt reasoning would be prejudicial to the
accused because it goes to a discrete issue (namely, the common assault) which will not
be before the jury, as opposed to the allegations of sexual assault. I do not accept that
submission. The fact that the jury will not be tasked with determining the accused’s guilt
of the offence of common assault is not the end of its relevance to the prosecution case.
In my view, the circumstances in which the complainant says she left the accused's
premises will be integral to the jury's assessment of her credibility and the nature of the
events that preceded her attempt to leave. In circumstances where consent is the only
issue, the respective credibility of the complainant and the accused will be of principal
importance to the jury.
27. Separately, Mr Maher relied on the fact that the accused had conceded that the assault
could possibly have occurred having regard to the physical layout of the area. However,
that does not deprive the complainant's evidence of its probative value; nor does it follow
that the evidence of the alleged lie has no probative value.
28. The accused further submitted that there is an inherent circularity in asking the jury to
consider whether the accused’s motivation for giving the allegedly false evidence was
due to a consciousness of guilt or a fear of the truth. That issue is dealt with in the
decision of the High Court in Edwards itself in the judgment of the plurality (Deane,
Dawson and Gaudron JJ) at 210:
But in truth there is no circularity of the kind suggested. It is convenient to confine ourselves to the requirement that there be a consciousness of guilt, but the same analysis is applicable to the requirement that the lie relate to a material issue. Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.
29. The accused further submitted that the potential prejudice is significant because the jury
will be asked to consider if the accused told lies in his original trial in an attempt to procure
his acquittal on all charges and that he told the lies because he is guilty. Mr Maher
submitted that, if the jury reasons in that way, there is simply no room for the jury to give
proper consideration to whether the prosecution has proved the accused's guilt on the
sexual assault offences beyond reasonable doubt.
30. I do not accept that submission for the simple reason that, as a matter of logic, it is not
necessarily the consequence of a finding that the accused perjured himself with a view
to securing his own acquittal that he is guilty of the sexual offences. It is logically
possible, and would be perfectly reasonable, for the jury to reason that the accused was
not guilty of the sexual offences and, for that reason, was so concerned to secure his
acquittal, noting the seriousness of the matters and the likely consequences of
conviction, that he was prepared to lie to secure that result. Those are matters as to
which the jury can, in my view, be guided with careful direction on the various
possibilities.
31. Finally, the accused submitted that there is prejudice in the fact that, if the charges are
heard together, he will be forced to enter the witness box. As already noted, he gave evidence at his first trial. The submission put by Mr Maher was that the jury might then
be faced with the circumstance that, while his evidence at the first trial will be played to
the jury in the retrial, they will then have an explanation in respect of the sexual offences,
but if he decides not to give evidence in the retrial the jury would be left with no
explanation for the administration of justice offences.
32. I do not think that that circumstance poses a relevant prejudice (that is, prejudice on
account of something other than the facts of the case) which in my opinion the
prosecution is entitled to present as they are. The accused's choice to give evidence at
his first trial was his forensic choice. I do not think the circumstances that have arisen
since mean that the prosecution should be constrained in presenting evidence plainly
relevant to an assessment of his credibility.
33. I note two further matters in that context. First, as submitted by the prosecution, the right
to a fair trial is one that applies to both parties, both the prosecution and the accused.
Secondly, the right to a fair trial is not the same thing as the right to a carefully curated
trial. Ms Christensen SC, who is the prosecutor in the matter, submitted that it would be
unfair to the prosecution if in a word-against-word case the prosecution was precluded
from presenting the plainly relevant evidence of the communications between the
accused and his ex-wife following her provision of a statement that was adverse to his
interests.
34. I note perhaps as a side issue that I respectfully would not, in these times, apply the
remarks of Brennan J relied upon by the accused from the decision of the High Court in
De Jesu v R [1986] HCA 65; 22 A Crim R 375 to the effect that sexual cases are likely
to arouse prejudice and that a direction to the jury is unlikely to give sufficient protection
to an accused person. Those remarks were made in 1986. The approach of the criminal
justice system to sexual matters has (in my respectful opinion, appropriately) moved
some way since that time. In making those remarks, I am really doing nothing more than
echoing the submission of the prosecution that the right to a fair trial is one that applies
to both parties.
35. I have dealt with the question of cross-admissibility of evidence. The second principal
argument put on behalf of the accused in support of severing the indictment was the
likely prejudice of the jury having to determine multiple issues and the trial judge having
to muster multiple directions to address the combination of the two different kinds of
offences. Whilst plainly that is a matter that will have to be approached by the trial judge
with considerable caution, I do not accept that is a reason for severing the indictment.
36. The prosecution submitted that, in addition to the matters raised by the accused, there
are other considerations which the Court must take into account, particularly including
the duplication of the resources if the trials are held separately and the position of the
accused's ex-wife, who would in that event have to give evidence twice. Those
considerations lead me to the conclusion that, leaving aside the complication of the right
to trial by judge alone, the indictment ought not be severed.
37. Turning to that issue, there are two aspects to be considered. First, the accused
submitted that a judge alone trial for the administration of justice offences would be
quicker and less complex. Secondly, the issue raised effectively of the Court's own
motion is whether the effect of the addition of the ex officio counts to the indictment has
been to deny the accused what would otherwise have been his right to elect trial by judge
alone in respect of those counts.
38. The parties also raised a related issue as to the order in which the trials might proceed
if the indictment were severed. It is not necessary to determine that last issue because
I have not been persuaded by the accused's submissions to sever the indictment in this
case.
39. My principal reasons are as I have explained in this judgment. To summarise, it is an
essential function of the Director of Public Prosecutions to bring forward an indictment
and indicate the evidence upon which he wishes to rely in support of that indictment in a
case statement. It is accepted by the accused that the onus is on an accused person to
persuade the Court that an indictment duly presented by the Director should be severed.
Here, the ex-officio counts were added because they are plainly inextricably linked with
the primary offences on the original indictment.
40. Secondly, I do not accept that there would be prejudice to the accused in the relevant
sense if the trial proceeds with all counts on the indictment as presently filed. It is trite
that prejudice of the kind needed to be established to warrant severing an indictment in
a case such as the present means something more than prejudice because the evidence
is probative. The evidence in support of the administration of justice offences here is
clearly probative.
Ultimately, Mr Maher’s submissions came down to a distinction between the jury hearing
that evidence and the jury hearing that evidence and then having to go on to consider
the elements of the offences of perjury. That is a small increment and I think one which
can be addressed by appropriate directions.
I have already referred to the fact that the directions identified in Mr Maher’s submissions
are ones which in my view can appropriately be adapted to the circumstances of this
case. I have referred to the fact that, in my view, that the accused might have to face a
difficult choice as to whether to give further evidence in his retrial as a result of his
forensic choice to give evidence in his first trial.
43. I do not accept that the severance of the indictment would capture any great efficiencies,
particularly noting that, if some of the offences are tried by judge alone and if that needs
to happen before the jury trial, the trials are unlikely to be able to be determined in the
time currently allocated for them owing to the need for the trial judge to publish a verdict.
44. Finally, and perhaps most compellingly, I think there is a real risk of inconsistent verdicts
or at least inconsistent conclusions on essential questions of fact if the trials are heard
separately.
For those reasons, the accused’s application is refused.
I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum
Associate:
Date: 1 May 2024
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