Director of Public Prosecutions v O'Brien (a pseudonym) (No 3)
[2024] ACTSC 307
•8 October 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v O’Brien (a pseudonym) (No 3) |
Citation: | [2024] ACTSC 307 |
Hearing Date: | 1 October 2024 |
Decision Date: | 8 October 2024 |
Before: | McCallum CJ |
Decision: | The application in proceeding by the young person dated 25 September 2024 to sever the indictment is refused. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to sever the updated indictment |
Legislation Cited: | Court Procedures Act 2004 (ACT), ss 76(1), 76(3)(b) Crimes Act 1900 (ACT), s 264(2) |
Cases Cited: | DS v The King [2023] NSWCCA 151 DPP v O'Brien (a pseudonym) [2024] ACTSC 63 |
Parties: | Director of Public Prosecutions ( Crown) Nathan O’Brien (a pseudonym) ( Young Person) |
Representation: | Counsel S Saikal-Skea ( DPP) K Lee ( Young Person) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Young Person) | |
File Numbers: | SCC 95 of 2023 SCC 96 of 2023 SCC 323 of 2023 |
McCALLUM CJ:
EX TEMPORE REASONS (REVISED)
1․The young person before the Court is due to stand trial on an indictment containing 13 counts alleging sexual offences against four complainants. The trial is due to commence on 14 October 2024. By application dated 25 September 2024, the young person seeks severance of the indictment.
2․Before determining the application, it is necessary briefly to refer to a preliminary point taken by the Director of Public Prosecutions (DPP). In a previous pre-trial hearing in the proceedings, Mossop J determined a tendency application by the DPP and a severance application by the young person: DPP v O'Brien (a pseudonym) [2024] ACTSC 63.
3․As is frequently the case in matters of this kind, his Honour treated those two applications as being inter-related, that is, that if the tendency evidence was cross-admissible, the indictment should not be severed. In the hearing of the application before me, the DPP submitted that his Honour’s order is binding, relying on s 76(3) of the Court Procedures Act 2004 (ACT). That section provides that a pre-trial ruling is binding on the trial judge at the hearing of the trial unless in the opinion of the trial judge it is not in the interests of justice for the order, ruling or direction to remain binding.
4․I do not accept that that provision applies to the present application. Section 76(1)(b) of the Court Procedures Act provides that the court’s jurisdiction to make a ruling in advance of a trial is enlivened “when an indictment for the offence is presented”. Justice Mossop could not have jurisdiction in respect of the present indictment as a count has been added, count 13, alleging a further sexual offence against one of the existing complainants. No indictment for that offence had been presented at the time the application was determined by his Honour.
5․Even if that is wrong, I am persuaded that it is in the interests of justice to reconsider the question of severance for effectively the same reason, that is, that an additional count has been added since the issue of severance was considered by his Honour.
6․After the application determined by Mossop J, several pre‑trial applications came before me including an application to extend his Honour’s tendency ruling to include the evidence in support of the new count 13. That aspect of the application was not opposed and accordingly I made the ruling sought by the DPP: DPP v O’Brien (No 2) [2024] ACTSC 276. However, at that time, the young person foreshadowed the possibility of a further severance application. The present application does not seek to traverse that earlier ruling.
7․Counsel for the young person accepts that the evidence the subject of Mossop J’s ruling is cross‑admissible on other counts and did not seek to contend otherwise in respect of any aspect of the evidence in support of the new indictment. Counsel further accepted that that is a factor that militates against making the severance order. The basis for the application is that the allegation the subject of the new count 13 is of such a kind as to evoke horror and disgust and constitutes particularly appalling behaviour.
8․The application is to be determined in accordance with s 264(2) of the Crimes Act 1900 (ACT) which relevantly provides:
264 Orders for amendment of indictment, separate trial and postponement of trial
(1)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.
9․The task accordingly is to determine whether there is prejudice or embarrassment in the joinder of count 13 with the existing counts on the indictment. Although I am not bound by the previous ruling made by Mossop J it is, in my respectful opinion, appropriate to pay due regard to his Honour's assessment that, leaving aside the new count 13, there was no basis for severing the indictment containing the then 12 counts. The present application, however, seeks to sever not only the new count 13 but all counts concerning that same complainant.
10․Considering a section in substantially the same terms, the NSW Court of Criminal Appeal explained in DS v The King [2023] NSWCCA 151 at [85] (Yehia J, with whom Beech-Jones CJ at CL and Weinstein J agreed at [1] and [132] respectively):
The relevant prejudice is not that the evidence merely tends to establish the Crown case but rather the danger that the jury may misuse the evidence by way of, for example, “appealing to the jury’s sympathies, arousing a sense of horror or provoking an instinct to punish”.
11․Both parties relied on that passage of that decision in different ways in the present case. Counsel for the young person contended on two separate grounds that the evidence that would be led in the present trial if the indictment is not severed would fall into that description of “arousing a sense of horror” or “appealing to the jury’s sympathies”.
12․The first category of material on which the application was based was the circumstances in which the new count is alleged to have been committed. The new count alleges an act of indecency against a complainant who had a child with the young person. At a time when the child was a few weeks old, the young person together with his mother visited the complainant and her parents at their home.
13․The young person and the complainant were at some point left alone in the complainant's room with the baby. The facts allege that the baby was fussing and that the young person placed the baby in the bassinet next to the complainant's bed saying that the baby did not need to be held all the time. What is said to be particularly horrific or such as to appeal to the sympathies or emotions of the jury is the fact that the complainant alleges the young person got on top of her and committed the indecent assault while the baby was fussing, ignoring his crying. Separately, it is alleged that the complainant told the young person that, having had the baby less than six weeks ago, she was “not allowed to have sex for at least six weeks after having a baby, because your uterus needs to go back down and there’s a lot of risks of infections and everything”.
14․I do not accept that those circumstances take count 13 into the category contended for on behalf of the young person. First, it is an allegation of indecent assault whereas other counts on the indictment allege sexual intercourse including unprotected sexual intercourse.
15․I do not accept the submission put by counsel for the young person that the actual act involved anything in the same category as those allegations. The principal point in respect of the count itself is the circumstances in which it is alleged to have occurred, namely, over the protestations of the mother of a newborn child while the child was crying. However, I do not think that circumstance is such as to create “horror” or any particular appeal to emotion of the kind submitted by counsel for the young person. I accept, as submitted on behalf of the DPP, that juries are to be taken to be robust. In my assessment, this is the kind of matter that can readily be addressed by directions by the trial judge.
16․The second category of material on which the severance application was based was that the same complainant has made allegations of physical violence. Those allegations may well be in the category of material that might evoke inappropriate sympathy on the part of the jury if joined with the sexual offences. However, the DPP has made plain that she does not intend to lead that evidence in the sexual assault trial.
17․Counsel for the young person referred, perhaps in passing, to the risk of the evidence coming out in an uncontrolled way given that the complainant will be giving her evidence live, the opportunity for giving pre-trial evidence having been lost due to the listings of the Court and the unavailability of any time to take that evidence before the trial proper commences. I think that is a speculative risk and not one that provides a basis for the present application.
18․For those reasons, I am not persuaded within the terms of s 264 that there may be prejudice or embarrassment of a relevant kind or that for any other reason it is desirable to direct that the person be tried separately in the manner contended for in the application.
19․In reaching that conclusion, I have had regard to the fact that, in some respects, the matters relied upon by the young person in support of the application conversely weigh in favour of permitting the evidence to be led, because it is powerful. In my view, contrary to a submission put by counsel for the young person, there would be some disadvantage to the DPP in excluding that evidence. Separately, although this is not determinative, the fact that there would be two trials does afford some imposition on the community, although, as I indicated during the hearing, that would not, of its own, be a discrete reason for refusing the application if a basis for making the order sought were otherwise established.
20․For those reasons, the application in proceeding by the young person dated 25 September 2024 to sever the indictment is refused.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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