Harvey v The State of Western Australia
[2013] WASC 350
•20 SEPTEMBER 2013
HARVEY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 350
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 350 | |
| Case No: | INS:71/2013 | 6 SEPTEMBER 2013 | |
| Coram: | CORBOY J | 20/09/13 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Application for separate trials refused | ||
| B | |||
| PDF Version |
| Parties: | BRADLEY WAYNE HARVEY MICHAL ADAM KURDZIEL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Joint indictment Application for separate trials No new principles Turns on its own facts |
Legislation: | Criminal Procedure Act 2004 (WA), s 133 |
Case References: | Demirok v The Queen (1977) 137 CLR 20 Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 Kalani v The State of Western Australia [2013] WASCA 132 Leaman v The Queen (1987) 28 A Crim R 104 R v Demirok [1976] VR 244 R v Gibb [1983] 2 VR 155 R v Glover (1987) 46 SASR 310 R v Jones (1991) 55 A Crim R 159 R v Middas (unreported, NSWSC, 27 March 1991) R v Pinkstone [2001] WASC 137 R v Webb (1992) 59 SASR 563 Re Attorney-General's Reference No 1 of 1977 [1979] WAR 45 Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 Santos v The State of Western Australia [No 2] [2013] WASCA 39 Stagno v The State of Western Australia [2013] WASC 186 The State of Western Australia v Russell [2009] WASCA 154 The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 The State of Western Australia v Micalizzi [2010] WASCA 147 Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- First Applicant
MICHAL ADAM KURDZIEL
Second Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Joint indictment - Application for separate trials - No new principles - Turns on its own facts
Legislation:
Criminal Procedure Act 2004 (WA), s 133
Result:
Application for separate trials refused
Category: B
Representation:
Counsel:
First Applicant : Mr S D Freitag
Second Applicant : No appearance
Respondent : Ms M Ridley & Mr S Joyce
Solicitors:
First Applicant : Gary Rodgers Solicitors
Second Applicant : No appearance
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Demirok v The Queen (1977) 137 CLR 20
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Kalani v The State of Western Australia [2013] WASCA 132
Leaman v The Queen (1987) 28 A Crim R 104
R v Demirok [1976] VR 244
R v Gibb [1983] 2 VR 155
R v Glover (1987) 46 SASR 310
R v Jones (1991) 55 A Crim R 159
R v Middas (unreported, NSWSC, 27 March 1991)
R v Pinkstone [2001] WASC 137
R v Webb (1992) 59 SASR 563
Re Attorney-General's Reference No 1 of 1977 [1979] WAR 45
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Stagno v The State of Western Australia [2013] WASC 186
The State of Western Australia v Russell [2009] WASCA 154
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Micalizzi [2010] WASCA 147
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
- CORBOY J:
The application and the result
1 Bradley Wayne Harvey and Michal Adam Kurdziel have been joined in an indictment that alleges that:
(a) on 28 February 2012 at Westminster, Bradley Wayne Harvey murdered Nicolle Patricia Bates;
(b) on 28 February 2012 at Westminster, Michal Adam Kurdziel unlawfully did grievous bodily harm to Nicolle Patricia Bates;
(c) on the same date at Perth, Michal Adam Kurdziel, knowing that Bradley Wayne Harvey had committed the said murder, assisted Bradley Wayne Harvey in order to enable him to escape punishment.
2 The trial of the indictment is listed for four weeks, commencing on 25 November 2013.
3 Mr Harvey has applied for an order pursuant to s 133(4)(a) of the Criminal Procedure Act 2004 (WA) (CPA) that he be tried separately from Mr Kurdziel. Three reasons for seeking the order were advanced in the application:
(a) separate trials were required to ensure that Mr Harvey received a fair trial;
(b) Mr Harvey was likely to be prejudiced in a joint trial as the jury would hear:
(i) 'highly' prejudicial and inadmissible recorded interviews conducted by the police with Mr Kurdziel on 13 and 16 March 2012;
(ii) oral evidence from Mr Kurdziel (if he elected to give evidence) to the effect that Mr Harvey had caused the death of the deceased - evidence that would be consistent with a statement made by Mr Kurdziel to police investigators on 17 March 2012;
(iii) 'highly' prejudicial and inadmissible evidence about Mr Harvey's past acts;
(c) the likelihood of Mr Harvey being prejudiced by that evidence could not be adequately guarded against by a direction to the jury.
4 I have concluded that Mr Harvey's application should be dismissed for the reasons that follow.
The State's case
5 The State will allege at trial that:
(a) Mr Harvey and the deceased had been in an 'on again, off again' de facto relationship for some time.
(b) The deceased had moved in to live with Mr Harvey and Melissa Dearle in January 2012. Ms Dearle and the deceased had an altercation in late January 2012 and Ms Dearle asked the deceased to leave her residence. The deceased then commenced living with Grant Cherry. Mr Harvey and the deceased terminated their relationship at about this time (State's outline of submissions, pars 7 - 11).
(c) Mr Harvey was unhappy that the deceased had commenced living with Mr Cherry. He was also unhappy that his relationship with the deceased had finished and he suspected that Mr Cherry and the deceased had become intimate. He also believed that the deceased owed him approximately $11,000. In the two or three weeks prior to the death of the deceased, Mr Harvey threatened the deceased and demanded that she pay him the amount that he believed that she owed (pars 12 - 14).
(d) On 27 February 2012, there was an altercation between Mr Harvey, Mr Cherry and the deceased at a shopping centre car park in Morley. Mr Harvey sent threatening text messages to Mr Cherry following that altercation (pars 15 - 18).
(e) Mr Harvey and Cameron Gugiatti went to a unit occupied by Mr Kurdziel during the afternoon of 28 February 2012. Mr Kurdziel was not then at the unit. Mr Harvey used the telephone of a person who was at the unit, Si Howe Lee, to send a text message to the deceased. He pretended that the message had been sent by Mr Kurdziel and invited the deceased to his unit as he had 'some good stuff'. Mr Harvey then told Mr Lee to leave the unit (pars 18 - 21).
(f) Mr Kurdziel returned home with another person, Daniel Williams, to find Mr Harvey and Mr Gugiatti in his unit. Mr Harvey asked Mr Kurdziel to call the deceased and invite her to his unit. Mr Harvey told Mr Kurdziel that the deceased owed him money and that he wanted to recover the debt and to scare her (pars 22 - 24).
(g) There followed a series of telephone calls made between Mr Kurdziel and the deceased, as a result of which the deceased agreed to go to Mr Kurdziel's unit for the purpose of supplying him with amphetamine. Mr Williams had left the unit by the time that Mr Kurdziel spoke to the deceased. Mr Cherry drove the deceased to a car park located near Mr Kurdziel's unit. The deceased then walked to Mr Kurdziel's unit (pars 25 and 26).
(h) Mr Harvey told Mr Gugiatti to leave the unit prior to the deceased arriving. Consequently, only Mr Harvey and Mr Kurdziel were in the unit with the deceased when, on the State's case, the deceased was killed by Mr Harvey (par 28).
(i) At some point, Mr Gugiatti re-entered the unit and saw the deceased lying on the kitchen floor. He noticed what appeared to be a scratch on the deceased's abdomen. Either Mr Harvey or Mr Kurdziel told Mr Gugiatti to take the deceased's body out the back of the unit as she was going to bleed. Mr Gugiatti moved the deceased's body to the back of the unit and then ran away (pars 31 - 33).
(j) Mr Harvey made a telephone call and left the unit. As he left the unit, he encountered Nira Garlett, a neighbour of Mr Kurdziel. He told Ms Garlett that he had 'killed a girl'. Ms Garlett then spoke to Mr Kurdziel, who told her to get away as Mr Harvey had killed a person (pars 34 - 37).
(k) Mr Cherry commenced looking for the deceased and encountered Mr Harvey walking along a street in Balga. Mr Harvey told Mr Cherry 'next time you fucking see her she'll be fucking dead'. Mr Harvey was making his way to the house of an acquaintance, Russell Napier. Mr Harvey borrowed a four-wheel drive vehicle owned by Mr Napier and drove back to Mr Kurdziel's unit (pars 39 - 41).
(l) Mr Harvey and Mr Kurdziel placed the deceased's body in the vehicle and drove to the Gnangara Pine Plantation. They buried the deceased's body in a shallow grave (par 42).
(m) Mr Harvey and Mr Kurdziel then drove to Ms Dearle's house. Mr Harvey told Ms Dearle that, 'I've done something really bad - I got rid of Nicole'. Mr Harvey told Ms Dearle the next day that, 'I went to Mick's and got him to call Nicole and set up a deal and then bring it to Mick's house … Me, Mick and Cameron were there waiting for them. She came in, Chez [Cherry] didn't come in, he only dropped her off at the front … I grabbed her and stabbed her …'. He also told Ms Dearle that he had used a kitchen knife to stab the deceased (pars 43 - 45 and 47).
(n) Mr Kurdziel subsequently told Mr Williams that, 'Brad stabbed Nicole and made me go with him to help him dig a hole and bury her' (par 46).
(o) Mr Kurdziel was arrested on 13 March 2012. He was interviewed by police that day and again on 16 March 2012. He made a number of admissions about his involvement in the death of the deceased and gave a detailed account of how he alleged that the deceased had been killed by Mr Harvey. He assisted the police to locate the deceased's body and made a witness statement on 17 March 2012 (pars 47 - 50)
Mr Harvey's interview with police investigators
6 Mr Harvey participated in a recorded interview with police investigators on 15 March 2012. In summary:
(a) Mr Harvey indicated that he regarded himself as having been in a relationship with the deceased. However, the relationship had been disrupted approximately 4 to 6 weeks prior to the date on which he was interviewed. The deceased had, at about that time, 'hooked up' with Mr Cherry (ts 11 - 12). He admitted that his relationship with the deceased had been 'in the end … terrible' (ts 16).
(b) Mr Harvey described an altercation between himself and Mr Cherry in the presence of the deceased in the shopping centre car park in Morley. The altercation had occurred approximately 3 weeks previously (ts 17 and following). Mr Harvey had confronted the deceased over money that he claimed she had stolen from him: 'cos - well, I'm entitled to some answers. She's, ah, stolen a lot of, um, money and stuff from me and caused me a lot of grief and then disappears' (ts 21).
(c) When initially asked what he was doing on 28 February 2012, Mr Harvey recounted another incident involving himself and Mr Cherry. He stated that the incident had occurred after he had been drinking (ts 30 and following). He further stated that 'all the drama' had started after that day - people had telephoned and threatened him and asked for the deceased. Further, he had been awoken the next day by somebody bashing on the window of his house and asking after the whereabouts of the deceased (ts 33 - 34). The police told Mr Harvey that they believed that this incident had occurred two days after the deceased had disappeared.
(d) The police also advised Mr Harvey that they believed that the incident in the Morley shopping centre car park had occurred on 27 February 2012 (ts 37). Mr Harvey then offered that he had gone to the unit occupied by Mr Kurdziel the following day (ts 45). He could not recall why he had gone to Mr Kurdziel's unit (ts 47).
(e) Mr Harvey denied that he had seen the deceased on 28 February 2012 but admitted that he had sent her a text message on that day (ts 58 - 59).
(f) Mr Harvey then either declined to comment on, or denied allegations put to him by the police about, his involvement in the death of the deceased. He terminated the interview while the police were putting to him an account of what had occurred that had apparently been given to them by Mr Kurdziel.
7 Accordingly, Mr Harvey made no admissions concerning his involvement in the death of the deceased apart from admitting that he had gone to Mr Kurdziel's unit some time on 28 February 2012. He also made various statements in the course of the interview that were disparaging of the deceased and indicated that he had been annoyed by her behaviour for some time prior to her death.
Mr Kurdziel's interviews with police investigators
8 Mr Kurdziel participated in a lengthy recorded interview with the police during the afternoon and evening of 13 March 2012. He participated in a further recorded interview on 16 March 2012 and on the following day he provided a signed witness statement. He also assisted the police to locate the deceased's body.
9 The first police interview in which Mr Kurdziel participated was conducted during a search of his unit undertaken on 13 March 2012. Mr Kurdziel initially made comments that suggested that he was not aware that the deceased had disappeared (ts 3). However, he later said that he had been told a few days earlier that she was missing (ts 23). He said that he had not seen the deceased 'in ages' (ts 14). He knew her as someone who had supplied him with amphetamine. He denied knowing anything about her disappearance (ts 24).
10 Mr Kurdziel was further interviewed by police investigators at Curtin House, commencing at 3.10 pm. In that interview, Mr Kurdziel stated that he had not seen the deceased for at least six months (ts 14 - 15). He also stated that he did not have a clear recollection of what had occurred on 28 February 2012. The interview concluded at about 4.20 pm.
11 The interview with Mr Kurdziel resumed at 5.58 pm. He was further questioned about his movements on 28 February. He thought that he may have stripped an old air-conditioner with Mr Williams for scrap metal in the morning and that the two of them had taken the scrap to a dealer at about lunchtime (ts 14).
12 Mr Kurdziel was then questioned by reference to telephone records that had been obtained by the police. The records indicated that his landline telephone had been used to contact the deceased's mobile phone. Mr Kurdziel admitted that he had spoken to the deceased about supplying drugs. However, he continued to maintain for some time that he had not seen the deceased on 28 February 2012.
13 At a point towards the end of this part of the interview, Mr Kurdziel said that he had been out of his unit but he found the deceased and Mr Harvey fighting in the kitchen of the unit on his return. He left the unit again. Mr Gugiatti had also been in the unit at this time (ts 45).
14 Mr Kurdziel claimed that the deceased and Mr Harvey were still fighting when he returned to his unit and so he again left the unit. He contacted Mr Harvey later that night and had been told that the deceased had 'taken off' after Mr Harvey had given her a 'flogging' (ts 62 - 64).
15 The interview concluded at that point but resumed after a break. Mr Kurdziel almost immediately said, 'Oh, well basically I'll tell you what really happened' (ts 2). He stated that Mr Harvey had told him to contact the deceased to arrange for her to come to his unit, saying 'I want to make her pay, teach her a lesson'. Mr Kurdziel stated that he had not wanted to contact the deceased but Mr Harvey had started 'getting violent with me and aggressive'. Mr Kurdziel then stated that (at ts 3):
She [the deceased] walked to my house and Brad started fighting with her and he, um, stabbed her. Yeh and that …
They were telling me then - he said he didn't want to, he didn't want to kill her to anything but I, I don't know if she stopped breathing or she was just knocked out. And then he took off and he was gone for a while. I rang him up and said well, you're not going to leave her bashed up at my house and I don't want to get in trouble and then he said oh, I'll come back and he came back in the car and then he took her.
16 Mr Kurdziel was taken through a more detailed account of his movements on 28 February 2012 in light of those statements. In the course of that account, Mr Kurdziel alleged that Mr Harvey had hit the deceased with a mallet and then stabbed her in the kidney or somewhere in the stomach (ts 12 - 13). Mr Kurdziel suggested that Mr Harvey's motive for attacking the deceased had been that 'some bikers came around to his [Mr Harvey's] house wanting to kill him for money. He owes for drugs and she ripped him off, dried the money, oh, dried their money' (ts 20).
17 Mr Kurdziel stated that Mr Harvey had left the unit after killing the deceased and had returned later with a four-wheel drive vehicle; that Mr Harvey had wrapped the body of the deceased in a tarpaulin and had placed the body on the back seat of the vehicle and driven away. Mr Kurdziel did not say that he had accompanied Mr Harvey and he gave no indication that he had assisted in the disposal of the deceased's body.
18 Mr Kurdziel was again interviewed by police on 16 March 2012. He reiterated that Mr Harvey had assaulted and stabbed the deceased. He confirmed that Mr Gugiatti was outside the unit when this had occurred. However, Mr Kurdziel admitted in the interview that he had assisted Mr Harvey to dispose of the deceased's body in a shallow grave that they had dug in the Gnangara Pine Plantation.
19 Mr Kurdziel initially told the police that Mr Harvey had carried the body of the deceased from the back of his unit to the four-wheel drive vehicle. Mr Harvey had then said to Mr Kurdziel, 'Surely you're not gonna let me do this all by myself?' and so Mr Kurdziel had 'hopped in the car'. He thought that Mr Harvey was 'gonna bury her or dump her or something' (ts 23).
20 It was put to Mr Kurdziel that he had not told the police about his involvement in disposing of the deceased's body during the interviews conducted on 13 March 2012. The following exchange then occurred (at ts 23):
Mr Kurdziel: Cos I thought I'd be charged for murder or something which, you know.
Q. Alright. Did he threaten you in any way or anything like that?
A. Yeh, he did when I - to make the phone call he did, yeh.
Q. Alright. But what about to get in the car?
A. Um, yeh, I think he did, I'm not sure. He kind of blackmailed me.
Q. How did he blackmail you?
A. Ah, I can't remember what he said exactly. Ah, he said something like - he said, 'You're not gonna let me do this all by myself?' Um, 'You're part of this now'. Yeah, that's all I can remember.
The prosecution brief
21 As would be expected, the prosecution brief is substantial. However, the following matters were particularly relevant to the application:
(a) The State's case against Mr Harvey is largely circumstantial, reinforced by three admissions that he allegedly made: to Ms Garlett immediately after the deceased had been killed (on the State's case); to Ms Dearle later that night and to Sabrina Marcia Goder. Ms Goder was a friend of the deceased. She states that she had been with the deceased during the morning of 28 February 2012. She became concerned as she could not contact the deceased and made enquiries of her whereabouts. She alleges that Mr Harvey had visited her a few days later to ask why she was looking for the deceased. He had then said to her, 'I had to get rid of her. She's gone' (statement of Sabrina Marcia Goder, par 313).
(b) At least five witnesses state that Mr Harvey and Mr Kurdziel had been at or near Mr Kurdziel's unit during the afternoon of 28 February 2012: Mr Williams, Mr Cherry, Mr Gugiatti, Ms Garlett and Mr Lee. According to their statements, none of those witnesses had been in the unit at the time that the deceased was allegedly killed by Mr Harvey.
(c) Mr Gugiatti made two witness statements. The first statement is dated 16 March 2012. It reads as though it was made prior to when the body of the deceased had been recovered and identified. Mr Gugiatti denies that the deceased had been at Mr Kurdziel's unit. He states that he had no knowledge of the circumstances in which she might have disappeared.
(d) Mr Gugiatti's second statement is dated 21 March 2012 and contains an account that is reflected in the outline of the State's case given earlier in the reasons. According to Mr Gugiatti, the deceased had been unconscious but breathing when Mr Harvey told him to come back inside the unit. There was a 'puncture' in the deceased's stomach and some bleeding. He 'realised that Brad or Michael had stabbed her' (PB 217, par 170) but he provides no evidence in his statement about who might have been responsible for the stab wound.
(e) There is hearsay evidence in the brief implicating Mr Harvey as the person that had killed the deceased: see the statements of Raymond Garlett, Robert Galli, Lukasz Kurdziel, Mr Williams and Jeffrey Murray. The evidence consists of statements allegedly made by Mr Kurdziel to each of those witnesses and are, accordingly, not admissible in the State's case against Mr Harvey.
(f) The cause of the deceased's death could not be ascertained on post mortem examination due to extensive decomposition changes and the lack of obvious evidence of significant injury. Toxicology analysis indicated that substantial quantities of methamphetamine and amphetamine were present in the deceased's blood. The post mortem report noted that a linear defect was detected in the left lower back of a T-shirt worn by the deceased that was consistent with a sharp force 'injury'. A small possibly underlying skin wound had been identified but there was no definite evidence of a deep wound track and no evidence of injury to the internal organs. There had been no evidence of skull or facial bone fractures.
(g) As previously noted, Mr Kurdziel provided a witness statement to the police. It contained statements to the effect that:
(i) Mr Harvey threatened Mr Kurdziel so as to force him to contact the deceased.
(ii) Mr Harvey hid in the unit prior to the deceased arriving.
(iii) Mr Harvey punched the deceased. Mr Kurdziel turned away while that was happening and when he turned back, the deceased was lying on the kitchen floor. She said, 'Mick, he stabbed me'. Mr Kurdziel observed the handle of a knife sticking out of the side of the deceased's stomach. Mr Harvey then struck the deceased with a mallet. The blow appeared to knock her unconscious. Mr Harvey banged the head of the deceased on the ground about three times. He also slapped her face, trying to wake her up.
(iv) Mr Gugiatti then entered the unit. The deceased was carried outside.
(v) Mr Harvey left the unit and returned later with a motor vehicle. He wrapped the deceased's body in a tarpaulin. Mr Harvey carried the body to the motor vehicle. After placing the deceased's body on a back seat of the vehicle, Mr Harvey said to Mr Kurdziel, 'You're going to help me out aren't you, you are in the shit now'. Mr Kurdziel said that he 'did not want to do this, but I would come anyway'. He felt that he had to, 'Like I had no choice. I was scared'. Mr Kurdziel thought that Mr Harvey might stab him because he had been a witness (pars 266 - 269).
(vi) Mr Harvey and Mr Kurdziel travelled to the Gnangara Pine Plantation where they dug a shallow grave and buried the body of the deceased.
22 Mr Harvey's application was supported by an affidavit sworn by Michael Neal Caratti. Mr Caratti is a solicitor retained by Mr Harvey. He attached to his affidavit extracts from the interviews conducted by police investigators with Mr Kurdziel for the purpose of identifying those passages in the interviews that were regarded as being especially prejudicial to Mr Harvey. The effect of the attached extracts has already been summarised.
23 Mr Caratti also referred to parts of the witness statements provided by Mr Cherry, Ms Goder and Katheryn Hall. The parts identified by Mr Caratti concerned assertions that Mr Harvey had acted violently or aggressively towards the deceased - the assertions mostly recounted what the deceased was to alleged to have told each witness about Mr Harvey's behaviour.
24 Finally, Mr Caratti deposed to a conversation with counsel for Mr Kurdziel in which he had been told that Mr Kurdziel intended to raise duress as a defence to the charge of being an accessory after the fact of murder.
25 It was contended in written submissions made on behalf of Mr Harvey that:
(a) in a joint trial, the jury would hear evidence of admissions made by Mr Kurdziel that was not admissible in the case against Mr Harvey but which the jury was likely to use to determine the cause of the deceased's death;
(b) it was also likely that Mr Kurdziel would raise duress as a defence to the charge of being an accessory after the fact and it was probable that he would testify that Mr Harvey was a violent person (assuming that Mr Kurdziel elected to give evidence);
(c) it was also likely that Mr Kurdziel would seek to elicit evidence of Mr Harvey's history of violence and reputation for acting violently and, 'in any event the evidence of [Mr Kurdziel] that touches upon other acts that reflect upon the character of [Mr Harvey] is such as to constitute an overwhelming likelihood in danger of irremediably unfair prejudice against him' (applicant's submissions, par 22);
(d) the likely course of the trial was similar to that considered by the Court of Appeal in Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326;
(e) Mr Kurdziel had demonstrated a propensity for lying in his recorded interviews with the police and he may 'falsely endeavour to convince the jury of his innocence and [Mr Harvey's] guilt resulting in a distraction from the central issues of the trial' (applicant's submissions par 27); and
(f) the jury was very likely to be unfairly influenced by evidence admissible against Mr Kurdziel but not against Mr Harvey regardless of any direction given by the trial judge.
26 In addition to those matters, counsel who appeared for Mr Harvey at the hearing of the application emphasised the practical effect of the decision in Russell v The State of Western Australia - that is, the finding that the trial judge ought to have discharged the jury and adjourned the prosecution because the appellant could not be fairly tried having regard to evidence that had been adduced by his co-accused about his conduct and reputation. It was submitted, in effect, that the public interest in the efficient administration of justice would be frustrated in this instance by allowing a joint trial with the attendant risk that the jury had to be discharged and the prosecution adjourned at some point to ensure that Mr Harvey received a fair trial.
Section 133(4) CPA and the relevant principles
27 I summarised my understanding of the principles relevant to an application for separate trials in Stagno v The State of Western Australia [2013] WASC 186 at [13]. The Court of Appeal has subsequently considered an application to sever a joint indictment in Kalani v The State of Western Australia [2013] WASCA 132.
28 The prosecution of the indictment against Mr Stagno and his co-accused has not been completed and the judgment in Stagno has been, and remains, suppressed. A copy of the judgment was provided, confidentially, to counsel prior to the hearing of this application. The parties did not take issue with the principles stated in Stagno. There are several points of similarity between the circumstances of this application and those considered in Stagno and the summary that follows is taken from the reasons given in that case.
29 Section 133(4) CPA provides that:
If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -
(a) that one or more of the accused be tried separately from the other or others; and
(b) the prosecutor to tell the court the order in which the accused will be tried.
30 Section 133(5) provides that:
In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a) to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b) to so decide irrespective of the nature of the offence or offences charged; and
(c) to so decide even if -
(i) …
(ii) the evidence against one of the accused is not admissible against another,
as the case requires.
(a) The joinder of accused in an indictment promotes consistency in decision making, facilitates a single and final inquiry into matters which arise out of, or essentially involve, common issues of fact and promotes the due and expedient administration of justice: Russell v The State of Western Australia [128] (McLure P).
(b) There are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other': Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 88 (Toohey J, endorsing the observations of King CJ in R v Webb (1992) 59 SASR 563) and see R v Demirok [1976] VR 244. Consideration of the issues raised by the same jury in the same trial is likely to avoid inconsistent verdicts in such a case (Toohey J in Webb at 89) - see also the comments of King CJ in R v Glover (1987) 46 SASR 310 at 312:
I take the view that where two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is, generally speaking, very unsatisfactory for jurors to attempt to arrive at the truth of the matter when only one of the persons alleged to have participated in the criminal conduct is before them.
(c) The prima facie position that there should be joint trials is not easily displaced: Bowen [30] (Pullen JA), cited with approval by Miller JA in The State of Western Australia v Russell [61].
(d) The discretion to order separate trials under s 133(4) of the CPA is not enlivened unless and until the court is satisfied that an accused is likely to be prejudiced in the trial of an indictment because it also charges one or more other accused. There must be reasonable grounds upon which the court can be properly satisfied on each of those elements: Micalizzi [24] (McLure P).
(e) The matters said to give rise to the likely prejudice must impact on or affect what happens in the trial. The likely prejudice must be actual (not assumed) and must be in the trial itself: Micalizzi [25]. See also The State of Western Australia v Russell: '[t]he trial judge could only be satisfied of likely prejudice [for the purpose of s 133(4)] on facts agreed or proven. He could not act on speculation or hypothesis' ([56] (Miller JA)).
(f) It is assumed that the jury will understand and apply the trial judge's directions: Demirok v The Queen (1977) 137 CLR 20; Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414.
(g) There is no discretion to exclude evidence admissible against an accused on the ground that it is inadmissible and prejudicial to a co-accused where the accused are properly tried together: Re Attorney-General's Reference No 1 of 1977; Western Australia v Bowen [1979] WAR 45 [54].
(h) It is commonplace that one accused will have made an out of court statement implicating a co-accused and that the prosecution will seek to adduce evidence of the statement in the case against its maker. Generally, a direction that the jury must not use the statement as evidence in the case against the co-accused will be sufficient to ensure a fair trial. There may, however, be instances where an out of court statement is so prejudicial to the co-accused that it cannot be assumed that the prejudice will be removed by a direction to the jury: Western Australia v Bowen [54]; see also, Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [65] (Steytler P).
(i) A trial judge is required to indicate to the jury where the evidence that is inadmissible against one accused is led against another accused in a joint trial. The jury should be advised of the limited use that may be made of the evidence at the time that it is elicited as well as in the trial judge's final directions. The trial judge should clearly identify the evidence and direct the jury on its use in the case against each accused.
(j) A jury is to be entrusted to carry out that direction provided that the trial judge's instruction to put aside inadmissible evidence is reasonably capable of being performed. Accordingly, the question of whether a direction can guard against the prejudice to an accused from incriminating evidence that is admissible only in the case against a co-accused will usually involve two issues: first, 'will an average jury be reasonably capable, as an intellectual exercise, of performing the task thus given them' and second, 'is the prejudice likely to be so great in the circumstances that it would not be reasonable to expect the jury to leave the prejudicial evidence out of account against a particular accused even though it is inadmissible against him': Leaman v The Queen (1987) 28 A Crim R 104, 108 - 109, cited with approval by Buss JA in Western Australia v Bowen [55].
(k) The fact that one accused alleges that he or she was coerced by a co-accused is not ordinarily a reason for ordering separate trials; indeed, to the contrary, it will usually be a reason for adhering to a joint trial: R v Gibb [1983] 2 VR 155. Similarly, Miller JA observed in The State of Western Australia v Russell that the fact that one accused is intending to say that he or she acted under duress by the other accused (whether both are charged as principal offenders or as principal offender and accessory after the fact) is not of itself a valid reason for severing the trial of individual accused persons [72].
(l) The prosecution will, in most cases, provide sufficient material to enable an application for separate trials to be considered before trial. However, there may be cases where it is apparent that it will not be until evidence is adduced at trial that the question of likely prejudice to one or other accused, caused by a joinder on the indictment, can be determined. That will often be the case where the evidence to be given by accused persons who have been jointly indicted is unknown: The State of Western Australia v Russell [76] - [77] (Miller JA).
Possible prejudice
32 It will be apparent from the summary of the State's case that there is no direct evidence admissible against Mr Harvey that identifies who was responsible for the death of the deceased - or put more broadly, about what happened in Mr Kurdziel's unit in the period when, according to Mr Gugiatti, only Mr Harvey, Mr Kurdziel and the deceased were in the unit. However, Mr Kurdziel has provided the police with a detailed account of what he alleges occurred during that period.
33 Mr Harvey submitted that there was a real risk that the jury would use Mr Kurdziel's evidence to fill a gap in the State's case against him. That would significantly, but impermissibly, strengthen the State's case (the risk was, perhaps unwittingly, illustrated by the State's written submissions at pars 66 and 67). It is to be noted in that regard that the State has accepted as truthful and reliable the account given by Mr Kurdziel of the circumstances in which the deceased died. That is apparent from the charges that have been alleged in the indictment, the statement of material facts and the submissions made in this application.
34 Mr Harvey has not foreshadowed the submissions that he will make to the jury on what occurred immediately prior to and after the deceased arrived at Mr Kurdziel's unit. Accordingly, what Mr Harvey will submit about the circumstances in which the deceased died is not known - including, whether he will allege that Mr Kurdziel was responsible for the death of the deceased. Mr Harvey's submission that the jury may impermissibly supplement the State's case against him with evidence that is only admissible against Mr Kurdziel raises several matters for considerations in those circumstances.
35 First, it is not possible to presently anticipate whether a joint trial would entail true 'cut throat' defences; that is, that Mr Harvey and Mr Kurdziel would each seek to implicate the other as the person who had caused the death of the deceased. However, the evidence in the prosecution brief (which has not been contested by Mr Harvey in his application) is that only he and Mr Kurdziel were in the unit at the time that the deceased died. Accordingly, the public interest considerations identified by McLure P in Russell v The State of Western Australia and by Toohey J in Webb apply.
36 Second, in R v Middas (unreported, NSWSC, 27 March 1991), Hunt J observed that a separate trial will 'usually' be ordered where:
(a) the evidence against the applicant for a separate trial was significantly weaker than, and different to, evidence admissible against the co-accused;
(b) the evidence against the co-accused contained material that was highly prejudicial to the applicant; and
(c) there was a real risk that the weaker prosecution case against the applicant would be made immeasurably stronger by reason of the prejudicial material.
See also R v Pinkstone [2001] WASC 137 and Zammit v The State of Western Australia [63] (Steytler P).
37 The primary difference in the evidence that is admissible against Mr Harvey and Mr Kurdziel lies in the out of court admissions that each are alleged to have made. However, as has been indicated, the real point of Mr Harvey's submission was that the State lacked direct evidence against him concerning the cause of the deceased's death. Accordingly, the State must prove that:
(a) that the deceased was killed (s 270 of the Criminal Code); and
(b) that Mr Harvey unlawfully killed the deceased (s 268 of the Criminal Code); and
(c) that Mr Harvey unlawfully killed the deceased with the intent specified in s 279 of the Criminal Code,
in circumstances where the post mortem and toxicology evidence is equivocal and the State cannot prove, in the case against Mr Harvey, the acts or omissions (if any) that caused the deceased's death except by a combination of Mr Gugiatti's evidence, the admissions allegedly made by Mr Harvey and the evidence that the State proposes to adduce concerning the circumstances surrounding the deceased's death.
38 Third, Mr Gugiatti's evidence is admissible against Mr Harvey and Mr Kurdziel. Mr Gugiatti's statement is consistent with the account given by Mr Kurdziel. However, Mr Gugiatti's evidence is likely to be significant in the case against Mr Harvey and it is possible that problems of the kind considered by the Victorian Court of Appeal in R v Jones (1991) 55 A Crim R 159 may emerge during the trial. However, that possibility can only be noted at this point as it is not known whether Mr Harvey will dispute Mr Gugiatti's evidence or more broadly, what Mr Harvey's case will be at trial.
39 Fourth, a similar observation can be made about Ms Garlett's evidence of the admissions that she alleges were made to her separately by Mr Harvey and Mr Kurdziel. It is possible that Mr Harvey may dispute her evidence, while Mr Kurdziel may accept her evidence about his alleged admission. Mr Kurdziel might also invite the jury, directly or by implication, to find that Ms Garlett is a truthful and reliable witness.
40 Fifth, as Miller JA observed in The State of Western Australia v Russell, there may be cases where it will not be apparent whether an accused person has been prejudiced by being tried with his or her co-accused until the evidence has been lead in the trial.
41 It is obvious that the statements made by Mr Kurdziel to the police are prejudicial to Mr Harvey - they seek to exculpate Mr Kurdziel and implicate Mr Harvey in the death of the deceased. There is also evidence of other out of court statements made by Mr Kurdziel that is only admissible against him but which is prejudicial to Mr Harvey. However, I have concluded that the possible prejudice to Mr Harvey is not such that separate trials should be ordered at this stage having regard to the considerations and principles identified above.
42 In relation to the circumstances referred to in R v Middas:
(a) Different charges have been alleged against Mr Harvey and Mr Kurdziel and there are significant differences in the evidence that is admissible against each of them. However, the charges arise out of the same events.
(b) I do not consider that the case against Mr Harvey can be characterised as weak. There is evidence that is admissible against him that he had a motive for, at least, confronting the deceased and that he was angry with her; that the deceased had been stabbed and was unconscious when Mr Gugiatti entered the kitchen of Mr Kurdziel's unit; that Mr Harvey borrowed a vehicle that may have been used to transport the deceased's body to a location where the body was buried and that Mr Harvey admitted killing the deceased by stabbing her.
(c) It is difficult to assess the risk that the State's case against Mr Harvey will be impermissibly bolstered by prejudicial material when his likely case at trial is unknown and the extent to which the evidence proposed to be led by the State will be contested is uncertain. It is not possible to meaningfully predict at this point whether the State's case against Mr Harvey will be made 'immeasurably stronger' by the jury hearing evidence that is only admissible against Mr Kurdziel.
43 The submissions made on behalf of Mr Harvey emphasised the decision of the Court of Appeal in Russell v The State of Western Australia. I have briefly discussed my understanding of that decision in the next section of the reasons. However, to the extent that Mr Harvey relied on the result in Russell v The State of Western Australia to illustrate how the efficient administration of justice might be jeopardised by not severing a joint indictment, it must also be noted that separate trials entail inconvenience to witnesses, increased prosecution costs and additional court resources. Those are considerations that have been identified in some instances as favouring joint trials: see, for example, Demirok [254].
44 I consider that, on the material presently before the court, effect should be given to the policy considerations that favour a joint trial where two or more accused persons are joined on an indictment alleging offences that arise out of a single episode. I also consider that this is an example of the kind of case to which Miller JA referred in The State of Western Australia v Russell; that is, that the question of whether the indictment should be severed in fairness to Mr Harvey can only be finally assessed in the forthcoming trial.
The possibility of a defence of duress
45 The submission that Mr Kurdziel intended to raise a defence of duress rested primarily on Mr Caratti's conversation with Mr Kurdziel's counsel. As has been explained, Mr Kurdziel claimed in his interview with the police on 16 March 2012 that Mr Harvey had 'kind of blackmailed' him into getting into the vehicle in which he claimed Mr Harvey had placed the body of the deceased. The relevant exchange between Mr Kurdziel and the police investigators has been reproduced earlier.
46 Three points about a possible defence of duress are relevant:
(a) The reference to threats in the exchange during which Mr Kurdziel referred to blackmail was to threats allegedly made by Mr Harvey to force Mr Kurdziel to telephone the deceased on the pretext of acquiring drugs. The threats did not relate to coercing Mr Kurdziel into assisting in the disposal of the deceased's body.
(b) Mr Kurdziel did not explain in his interview what he meant by being blackmailed by Mr Harvey to get into the vehicle and, by implication, to assist in disposing of the deceased's body.
(c) The threats allegedly made by Mr Harvey to Mr Kurdziel prior to the deceased arriving at Mr Kurdziel's unit would, undoubtedly, be relevant to a defence of duress. However, the defence would necessarily focus on what occurred after the deceased was killed (on the State's case) as Mr Kurdziel has been charged with being an accessory after the fact. Mr Kurdziel not only did not explain what he meant by the allegation that Mr Harvey had 'kind of blackmailed' him to enter the vehicle, but his statements to the police about why he accompanied Mr Harvey to the Gnangara Pine Plantation were equivocal. That is most clearly illustrated by his witness statement. Mr Kurdziel alleged that Mr Harvey said no more than that they were 'in the shit' together and Mr Kurdziel responded by telling Mr Harvey that he 'did not want to do so, but I would come anyway'. He added that he was scared and he thought that Mr Harvey might stab him as he was a witness. However, he did not allege that Mr Harvey made any direct threat. Mr Kurdziel also states in his witness statement that Mr Harvey commenced digging a hole at the pine plantation in which to bury the deceased's body but he became tired and asked Mr Kurdziel to assist. Mr Kurdziel then states, 'I grabbed the shovel off [Mr Harvey] and started digging' (pars 306 - 307). Again, there is no allegation of a threat made by Mr Harvey. Accordingly, the evidence of a threat for the purpose of s 32 of the Criminal Code is, at best, tenuous when the whole of Mr Kurdziel's interviews with the police and his witness statement are considered.
47 In my view, the possibility that Mr Kurdziel will raise duress as a defence is speculative in the sense explained by Miller JA in The State of Western Australia v Russell. Further, and in any event, that possibility would not ordinarily justify severing a joint indictment.
48 Reference was understandably made to the decision of the Court of Appeal in Russell v The State of Western Australia. The appellant's co-accused claimed that she had assisted the appellant after he had killed the deceased out of fear. The defence of duress was left with the jury. Evidence was adduced as part of the co-accused's case of the appellant's prior convictions for violence, his violence towards her in the past and of an altercation between the appellant and a witness called by the State. A majority of the Court of Appeal held that there had been a miscarriage of justice as a result of the appellant being jointly tried with his co-accused in light of the evidence that was adduced during the trial.
49 Buss JA identified 11 reasons for having reached that conclusion. A number of those reasons concerned matters that had occurred in the trial, including whether the defence of duress ought to have been left as an issue to be determined by the jury. His Honour's reasons also referred to directions that could have been given during the trial which would have avoided the risk of prejudice to the appellant and ensured a fair trial. Accordingly, the Court of Appeal's decision is, in my view, largely explained by what had occurred in the course of the trial. In particular, the decision does not undermine the observations made in R v Gibb and The State of Western Australia v Russell concerning joint trials and allegations of coercion made by one accused person against his or her co-accused. That is especially so in this instance where the evidence of duress on the material presently available to the court is equivocal.
50 I do not consider that this conclusion is affected by the possibility that Mr Kurdziel will endeavour to lead evidence that Mr Harvey had a reputation for violence. First, it is not presently known whether Mr Kurdziel will take that approach even if duress is raised as a defence. Second, it appears that any appropriate direction by the trial judge could obviate the risk of prejudice to Mr Harvey having regard to the material contained in the prosecution brief that might be used for the purpose of attacking his character. That conclusion is supported by the analysis in Russell v The State of Western Australia of the steps that might have been taken in the trial to avoid prejudice to the appellant in that case.
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