Director of Public Prosecutions v Preston (Ruling No 2)
[2015] VSC 396
•6 February 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0204
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GAVIN JOHN PRESTON |
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JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 December 2014 |
DATE OF RULING: | 6 February 2015 |
CASE MAY BE CITED AS: | DPP v Preston (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 396 |
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[REDACTED VERSION]
CRIMINAL LAW – indictment containing charge of murder and charges of aggravated burglary, attempted armed robbery, intentionally causing serious injury and recklessly causing serious injury – application for severance – application granted - Criminal Procedure Act 2009 (Vic) s 193.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC with Ms J Warren | Office of Public Prosecutions |
| For the Accused | Mr J McMahon | C D Traill Lawyers |
HIS HONOUR:
Introduction and summary
Gavin Preston is charged with four counts associated with the alleged armed robbery of and causing serious injury to To-Lam Duong on 30 January 2012, involving the use of a gun (‘armed robbery counts’). He is also charged on the same indictment with the murder of Adam Khoury who was shot and killed 12 days later, on 11 February 2012 (‘murder count’). Preston has applied for an order that the armed robbery counts be tried separately from the murder count.
Preston argues two things:
(a) first, there is insufficient nexus between the two incidents to justify them being joined in the one indictment; and
(b) second, even if joinder was initially justified, the two cases should now be severed because of the extent of prejudice Preston would sustain by having them heard together.
Legislation governing the question of what charges may, must or ought be tried together establish the following rules relevant to this case:
(a) an indictment may contain charges against the same accused for offences that are founded on the same facts or form, or are part of, a series of offences of a same or similar character;[1]
(b) if an indictment contains more than one charge, the charges must be heard together unless an order is made that one or more of them be tried separately;[2] but
(c) the court may order that any one or more of the charges be tried separately if it considers the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment or for any other reason it is appropriate to do so.[3]
[1]Criminal Procedure Act 2009 (‘CPA’) s 3 (definition of ‘related offences’) and paragraph 5, Schedule 1,
[2]CPA s 170(1)
[3]CPA s 193 (1),(3).
In R v Magnus (Ruling No 1)[4] T Forrest J accepted a submission that the power to sever an indictment under s 193 of the CPA would involve the consideration of the same legal principles which applied to the question of joinder under the old rule 2 of the Sixth Schedule of the Crimes Act 1958 (which was in operation until the introduction of the CPA on 1 January 2009). Neither party in this matter disagreed with that proposition.
[4][2011] VSC 340[11].
The legal principles applicable under that the old rule were summarised by Whelan J in R v Gregory (Ruling No 1)[5] as follows:
[5][2009] VSC 358 [13].
(1)The rule is to be given a liberal interpretation consistent with the policy underlying it, namely, to enable the joinder of charges which may be properly and conveniently dealt with together: R v Reid;[6] Ludlow v Metropolitan Police Commissioner.[7]
(2)Both the law and the facts should be taken into account in deciding whether offences are similar or dissimilar: Ludlow;[8] R v Smart;[9] Reid.[10]
(3)In order for there to be a series of offences of a similar character there has to be some nexus between the offences: Ludlow;[11] Smart;[12] Reid;[13] R v McLean.[14]
(4)It is not necessary that the offences exhibit close similarities. Not infrequently in cases of commercial fraud, it is enough that offences or groups of offences have a common genesis or are otherwise linked and associated by commonality of parties or transactions: R v Heinze.[15]
(5)Two offences can constitute a “series”: Ludlow.[16]
(6)A difference in time between offences might mean that what could otherwise be considered a series has become fragmented over time so as not to deserve that description: McLean.[17]
[6][1999] 2 VR 605, 621 (“Reid”).
[7][1971] AC 29, 40 (“Ludlow”).
[8]Ibid 39.
[9][1983] VR 265, 282 (“Smart”).
[10]Reid[1999] 2 VR 605, 621.
[11]Ludlow[1971] AC 29, 39.
[12]Smart[1983] VR 265, 282.
[13]Smart [1999] 2 VR 605, 621.
[14](2000) 2 VR 118, 128-9 (“McLean”).
[15](2005) 153 A Crim R 380, 392.
[16]Ludlow[1971] AC 29, 38.
[17](2000) 2 VR 118, 133.
The Crown submitted that all five charges have been properly joined on the indictment. It argued that the offences the subject of the armed robbery counts and the murder count form part of a series of offences of a similar character. Specifically, the Crown argued that the offences committed on both occasions were connected by a common motive. Further, the Crown argued that much of the evidence surrounding the armed robbery is admissible to prove Preston’s guilt in respect of the murder. Finally, the Crown argued that because Preston puts every element of the offence of murder in issue, the evidence of his use of a gun in the armed robbery is admissible to negate any defence based upon the possibility, say, that the shooting of Khoury occurred accidentally.
Preston, on the other hand, argued that the evidence put forward by the Crown demonstrates that any nexus connecting the two events as parts in a ‘series’ is tenuous at best. Further, he argued that the common motive hypothesis involves speculation and is conspicuously weak. Preston argued that the Crown case on motive is now complicated by the recent introduction of a different motive which contradicts its first hypothesis. Finally, he also argued that the real reason that the Crown wants the several counts heard together is to try to demonstrate, impermissibly, that he had a propensity for violence, and to use firearms, to establish his guilt on the murder count. In the result, Preston argued, he will be unjustifiably prejudiced by facing a single trial on all counts.
In oral submissions Preston stressed that the prejudice operates two ways: that is, he is prejudiced on his trial for the murder of Khoury by the jury also hearing the evidence on his trial for the armed robbery of Duong; but, similarly, he is also prejudiced on his trial on the armed robbery counts by the jury hearing the evidence on his trial on the murder count.
I have concluded that the murder count should be tried separately from the armed robbery counts. But, as I will explain, I leave open, for further submissions, the extent to which evidence of the armed robbery is admissible on the trial of murder count.
To explain my conclusion, it is necessary to give greater detail about each incident.
Relevant alleged factual context
The serious injury to Duong was inflicted in the first incident by gunshot wounds from shots fired from a handgun. The murder of Khoury was effected by gunshots to the head shoulder fired from a handgun.
Duong, the victim in the first incident, was a drug dealer who traded, amongst other things, in methylamphetamine (‘ice’). Khoury, the victim of the murder, was another drug dealer. Khoury, allegedly, was the head-supplier of drugs to Duong.
The Crown case is that Preston and an African man called Hailu called on Duong and shot him in the course of robbing him of drugs to satisfy an alleged debt. Hailu claimed that he paid $2,500 to Duong for drugs that were of bad quality, and he wanted his money back. The drugs that had been sold to Hailu had originally been supplied to Duong by Khoury. So, the ‘debt’ was allegedly owed to Hailu by Khoury, as the original supplier of drugs, or by Duong as the intermediate supplier.
The Crown case is that Hailu enlisted Preston to help him recover his debt. Preston and Hailu had been associated with one another for some time before the Duong incident, and both also had association with Khoury. There is evidence of attempts by Preston and Hailu to meet with Khoury over the weekend before Duong was shot, but to no avail. Then, the Crown alleges, Preston accompanied Hailu to Duong’s house in the early hours of the Monday morning to recover the money, although ultimately they only obtained drugs (a bag of ‘ice’). It was in the course of that incident that the Crown says Preston shot Duong in the leg.
Over the next eleven days there was a string of telephone calls and text messages, mainly between Hailu and Khoury. Very early in that chain is a text message from Preston to Khoury about leaving a ‘blue bag’ at his apartment. The Crown alleges it was a coded reference to having stolen ‘ice’ from Duong. At the end of the chain of messages there was a flurry of text and voice-messages from Preston to Hailu. Preston was trying to get in touch with Hailu. Apart from the ‘blue bag’ message early in the piece and that late flurry of messages to Hailu, Preston is not involved in the many exchanges between Hailu and Khoury over those eleven days.
The Crown alleges that the communications before and after the Duong incident are evidence of a thread which connects the Duong armed robbery and the shooting murder of Khoury twelve days later. The Crown says that these messages can be interpreted as revealing hostility by Hailu towards Khoury, with Khoury evading Hailu, commencing before the attack on Duong and then continuing on to the murder of Khoury. That continuing hostility, argues the Crown, originates from a single cause, namely Khoury’s supply of bad drugs and his refusal to compensate Hailu for the money he paid for them.
The extent to which Preston is associated with Hailu in that hostility towards Khoury, especially after the Duong incident, is a matter of contention; the Crown says it is readily apparent whereas Preston says it is entirely speculative. The meaning of the messages themselves is heavily disputed. For example, Preston questions the hypothesis that Hailu (still less Preston) remained interested in punishing Khoury for a supposed drug debt when Hailu and Preston were said to have ‘collected’ on the debt by robbing Duong. Further, Preston argued that the sole communication between himself and Khoury after the Duong incident, being a question from Preston whether had left a ‘blue bag’ at the apartment, bears no apparent connection whatsoever to the alleged drug debt nor does it reveal any sign of hostility. On the other hand, the Crown argued it was coded intimidation, and links the various communications with other contemporaneous movements of the various players, and the preceding events, to attempt to depict a consistent pattern of hostility and evasion leading to the murder of Khoury.
On the twelfth day after the Duong incident Preston was at Khoury’s house around midnight. Hailu was not with him although Preston had been trying to contact him for a couple of hours beforehand. Preston was the last person seen with Khoury alive. Khoury was shot and killed that night with a handgun, although not the same gun used on Duong.
Preston denies that he was involved in any armed robbery of Duong or that he was present at Duong’s premises. Preston admits that he was at Khoury’s house the evening that he was killed but his case is that when he left the premises Khoury was alive and had not been shot.
Late last year, the Crown gave notice of intention to call two additional witnesses. According to one of those new witnesses, Preston allegedly confessed that he shot Khoury in the shoulder and then in the head, an account that is consistent with the wounds found on Khoury’s body. That new witness was examined before me on a voir dire. REDACTED.
The new witness’s evidence suggests that Preston had a different motive for shooting Khoury to the one so far mentioned. According to the new witness, Preston said that he had to get Khoury before he ‘lagged’. Preston is a suspect for the shooting of Bandidos’ motorcycle club member, Toby Mitchell. That shooting occurred in November 2010 about ten weeks before the killing of Khoury. Preston allegedly used Khoury’s car in the shooting of Mitchell. Preston was said to be worried that Khoury had turned and was now aligned with forces sympathetic to Mitchell. Other evidence suggests that Hailu was also involved in that tension, siding with Preston.
So, the Crown will now lead evidence of two motives:
(a) first, the ongoing hostility between Hailu and Preston, on the one hand, and Khoury, on the other, over the alleged drug debt due to Hailu; and
(b) secondly, Preston’s concern that Khoury would betray him over the Toby Mitchell shooting.[18]
[18]By agreement between the parties, to avoid over-complication and unnecessary prejudice in the trial evidence will not be lead about the reason for and subject matter of Preston’s alleged concern that Khoury would ‘lag’.
Sufficiency of nexus?
In my view, applying the joinder principles, the two sets of offences are of a ‘similar character’. An armed robbery involving the intentional causing of serious injury by shooting with a hand gun may properly be said to be of similar character to a murder by shooting with a hand gun.
But even if that is so, what makes them part of a series? Two incidents may be part of a series if there is a nexus between them: rather circuitously, a ‘feature of similarity which in all the circumstances… enables the offences to be described as a series’.[19] But, that might be because they have a common factual origin; that is, that they are ‘traceable, either in time, place or circumstance, to common events…’.[20] Or the nexus might exist because evidence in respect of one offence is also admissible as evidence in respect of the other. But, the nexus might be found in other things, not necessarily a shared origin in common events. It might be that there is a common ‘target’, or a common modus operandi. Or it may be a combination of things which, individually, may not create a ‘nexus’, but together they do: in R v Cogley,[21] a case which shares some strikingly similar features with the present case, it was that
‘…the same weapon was used in the commission of both offences, that the offences were separated by only 10 days and that the victims were from a small group of persons known to each other may have justified the conclusion that the offences did constitute a “series” of similar offences within the meaning of the rule’[22]
[19]R v McLean (2000) 2 VR 118, 128.
[20]R v Collins; Ex parte Attorney-General [1996] I Qd R 631, 637.
[21]R v Cogley [1999] 3 VR 366.
[22]Ibid [25].
In this case, the principal issues that the Crown say link the two crimes, for the purpose of justifying joinder and resisting severance, are;
(a) the common ‘drug-debt revenge’ motive (originating from the one drug transaction); and
(b) the common use of a hand-gun (although, not the same hand-gun).
Both ‘issues’ are contentious in the sense that the drug-debt hostility is denied, generally, and in particular as a motive for either offence; and, of course, Preston does not concede he was present with a gun on either occasion so there is no admitted starting point for comparison. When looking at the issue before the trial in a contested case, the question of whether there are common features between two crimes will, often, require an assumption that the Crown case on those features can be proven. That is, ‘assuming the Crown can establish a handgun was used by the accused in both cases, would that justify joinder?’ or, ‘assuming the Crown can establish that Preston had a motive to do harm to both Duong and to Khoury arising from the same events or circumstances, would that justify joinder?’
While that may be so, and even if joinder is otherwise justified, on an application for severance the assessment of the prejudice to the accused by reason of the joinder involves a balancing exercise. In that context, some attention must logically be paid to the probative weight of the features that are said to justify the joinder, and the strength of the evidence in their favour.
Before considering those elements, in my view there are sufficient (arguable) connecting features (motive, common foundation of fact, use of a handgun, related people) to create a nexus between the two so that they could each be called a part of a ‘series’. On that basis I am inclined to think that, subject to the consideration of prejudice to the accused, the two sets of offences were properly capable of being joined under the relevant principles.
I turn specifically to the question of prejudice, any counterbalancing justification for it and the means of redressing it.
Does the danger of prejudice to Preston require the indictment be severed?
There is significant prejudice to Preston in having the two matters heard together.
First, there is the danger that the jury will reason, if they think Preston shot Duong, that Preston had a propensity to use a handgun to take revenge on people and so misuse that evidence to find him guilty of the murder of Khoury. It remains possible that the danger of that prejudice might be justified if:
(a) evidence of the events involved in the Duong armed robbery is contextually necessary to establish the existence of the alleged drug-debt motive; and
(b) the probative value of the alleged drug-debt motive is sufficiently high to outweigh the prejudice.
That probative value is to be weighed in the context of it being a part of the defence case to suggest that a number of other people had a motive to kill Khoury. It is also to be weighed in view of the fact there is also evidence of another motive. The ultimate extent of the danger of prejudice must also take account of the efficacy of appropriate directions to the jury.
Secondly, however, there is also the danger going the other way. That is, if the jury thinks that Preston shot Khoury, there is a danger the jury will use that conclusion to reason that he was responsible for the shooting of Duong. In respect of that danger, there is no counterbalancing probative value in leading the Khoury evidence in respect of the Duong counts. In other words, the evidence of the shooting of Khoury would be inadmissible as proof that Preston intentionally caused serious injury to Duong. The Crown does not seek to argue otherwise.
In the result, there is manifest risk of prejudice to Preston of the jury misusing evidence concerning the shooting of Khoury as propensity evidence in deciding Preston’s guilt on the trial of the Duong charges. That risk could never be counterbalanced by any probative value of the evidence of the Khoury incident toward proof of the Duong charges.
Without reaching any conclusions on the issue, in a trial for the murder of Khoury alone, the probative value of evidence concerning the Duong incident (whether or not that includes evidence of the actual shooting) might outweigh the risk of prejudice to Preston, so as to justify its admission into evidence, also having regard to appropriate directions to be given to the jury about how they may and may not use such evidence. But, on a trial of all offences heard together, when the combined risk of prejudice going both ways is taken into account, the argument in favour of severance is not adequately countered by the potentially probative value of the Duong evidence on the Khoury murder count, nor by the prospect of directions ameliorating the risk of prejudice.
I should mention that I was not attracted to the Crown’s alternative position. That position was that, if anything should be severed, only the intentionally causing serious injury count should be severed from the indictment, leaving in place the aggravated burglary and attempted armed robbery counts. That would enable the Crown to lead evidence about the armed robbery and the presence of the gun but exclude the actual firing of the gun and injury to Duong. Whether or not any aspects of that evidence can be justified as being admissible, and survive a s 137 Evidence Act challenge in the context of a trial of the murder count alone, remains to be seen; but in my view there is little to commend severing the Duong incident into two parts.
For that reason I propose to order that the trial of the count of murder of Khoury be heard separately from the trial of the counts related to the armed robbery of Duong.
But I want to make it clear what I am not deciding on this application.
Preston conceded that, on a trial of the Khoury murder count if severed from the Duong counts, he would not oppose ‘sensible contextualisation’ by reference to some of the matters of relationship and hostility that arguably preceded, and proceeded from, the Duong incident (but not the events of the incident itself). The Crown, for its part, argued that, in addition to such ‘relationship’ and ‘hostility’ evidence, it should at least be permitted to lead evidence that Preston produced a gun to rob Duong.
But the parameters of Preston’s concessions, and the Crown’s argument that at least some parts of the Duong incident are admissible and necessary for its murder case, were not fully explored. Perhaps that is understandable. For the purpose of the severance argument, the Crown would not wish to concede, too readily, the questionable probative value of particular aspects of the evidence of the Duong incident on the Khoury murder count. On the other hand, on the severance application, Preston would not wish to be seen to be conceding the relevance of any aspects of the Duong incident for the purpose of Khoury murder trial.
So, in ordering the severance of the charges I wish to emphasise that I am not to be taken to be deciding that the evidence concerning the Duong armed robbery, or any part thereof, may not be admitted on the trial of the murder count alone. That issue should next be argued as a discrete argument under s 137 of the Evidence Act on the now established premise that the only issue is the count of murder.
Accordingly, I will order the severance of the charges and defer further questions about the admissibility of the various elements of the Duong incident in the Khoury murder trial.
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