R v AB & Baker (Ruling No 1)

[2008] VSC 106

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1545 of 2006

THE QUEEN	Plaintiff
v
AB & BAKER	Defendant

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 & 27 March 2008
DATE OF RULING:	31 March 2008
CASE MAY BE CITED AS:	R v AB & Baker (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2008] VSC 106

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CRIMINAL LAW – Presentment – Severance – Murder and other counts – Order murder count to be tried separately.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. N. Rose SC and Mr Lewis	Office of Public Prosecutions
For the Accused AB	Mr W. Stuart	Victoria Legal Aid
For the Accused Baker	Mr J. F. Desmond	Doogue & O’Brien

HIS HONOUR:

1. In this matter the Crown has filed a presentment against the two accused which contains a count of murder, a count of affray, and 18 counts of assaults of various types.  All of the charges arise out of events in the early hours of the morning of Sunday 27 November 2005 at a party at a converted warehouse in Brunswick.  Broadly speaking, the material in the deposition reveals that fights broke out inside the area of the warehouse where the party was taking place and that some time afterwards a fight occurred in the stairwell just outside that area.  One of the persons involved in that fight went through the window and fell to his death. 

1. Counsel for the Crown submitted that joinder of all the counts was authorised by rule 2 of the sixth schedule of the Crimes Act 1958 which provides that charges may be joined in the same presentment if they are founded on the same facts or form part of a series of offences of the same or a similar character. Counsel for the Crown submitted that if the assault charges were to be severed the affray should remain.

1. Counsel for the defendants did not submit that the counts had been improperly joined but did submit that there ought to be an order for a separate trial of the murder count pursuant to s.372(3) of the Crimes Act. 

1. In the course of argument counsel for the Crown focused on the issue of whether the affray ought to be tried with the murder.  As the argument progressed, that became the central dispute as counsel for the Crown was not concerned to develop detailed submissions supporting a trial on all counts. 

1. For present purposes the Crown case on the murder may be summarised as follows.  The two defendants and a third person reached an agreement to assault and cause really serious injury to random persons at the party.  In the course of fulfilling that agreement, they assaulted people inside the party and also assaulted the deceased in the stairway causing him to fall through the window to the street below.  The Crown foreshadows reliance on the concepts of common purpose, aiding and abetting and perhaps extended common purpose. 

1. On the affray, the Crown says the actions of each accused inside the party and on the stairway constitute the affray. 

1. Whilst counsel for the two accused do not agree with each other as to the appropriate analysis of the evidence, they were in substantial agreement as to the reasons why they submitted the murder charge should be heard separately without any of the other counts, including the affray.  In substance, as I understand it, those reasons are as follows: 

1.Generally it will be difficult for the jury to differentiate the issues relevant to the affray count from the issues relevant to the murder count.  There will be complex issues of accessorial liability and causation on the murder count and the existence of a separate count raising different issues concerning the same or overlapping factual circumstances will make the jury's task too difficult, notwithstanding clear directions. 

2.The respective involvements of the two accused and of the third person in the events are not the same.  There is, in relation to the affray, the real possibility of the jury segmenting the respective involvements of the accused and the third person in the manner described in R v. Smith[1].  This is likely to be confusing and difficult for the jury and is a task they should not have to address when also considering a murder charge. 

[1](1997) 1 Cr App R 14 at 17.

1. Counsel for the defendants relied upon the traditional reluctance of courts to permit the trial of other counts with a murder count, referring to the observations of Beach J in R v. Pollitt[2] and to the observations of Vincent JA in R v. Debs & Roberts[3]. 

   [2](1991) 1 VR 299 at 302.

   [3][2005] VSCA 66 249‑254.

1. Counsel for the Crown acknowledged that there would be difficulties in having a trial of the affray count with the murder count, but submitted that these difficulties could be overcome by clear directions.  Reference was made to DPP v. Coelho, Tabbit and SPA[4] where an affray charge and an assault charge were heard with a murder count and to R v. Galas & Ors[5] where aggravated burglary, attempted armed robbery and murder charges were ruled to be appropriately tried together. 

   [4][2007] VSC 137.

   [5][2005] VSC 159.

1. I accept that the strict traditional approach to the separate trial of murder counts is no longer warranted.  There will be circumstances where there will be no prejudice or embarrassment to the defence in another count or counts being tried with a murder count and where such a trial will be appropriate.  In my view, however, this is a case where the traditional approach should be followed. 

1. In substance, I accept the submissions of counsel for the defence that the affray count will impose undesirable complication in what will be a difficult task for the jury in any event.  On the murder count the jury will have to consider a number of difficult issues, including issues of accessorial liability and causation.  If the affray is heard as well, the jury will have additional difficult issues to address such as determining beyond reasonable doubt the actions perpetrated by each of the alleged parties to the affray and what was the effect of those actions separately and together on reasonable bystanders.  These are issues which will not necessarily need to be determined or considered in the same way by the jury when addressing the murder count. 

1. This is a case where the traditional approach should be followed.  I note in this regard that Teague J expressed a preliminary view to the same effect when the matter was first listed for trial and some preliminary argument was heard in 2007. 

1. In the circumstances, I am satisfied that each accused may be prejudiced or embarrassed in his defence by reason of being charged with the counts other than murder in the same presentment as the murder and I direct that the murder count be tried separately to the other counts on the presentment.