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:

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.

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.

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.

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.

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.

On the affray,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v AB & Baker (Ruling No 1)

Details

AGLC: R v AB and Baker (Ruling no 1) [2008] VSC 106
Case: [2008] VSC 106
Decision Date: 31 March 2008

CaseChat Overview and Summary

In this case, AB and Baker were jointly charged with a number of offences, including murder. They applied to have the murder count severed from the other charges and tried separately. The application was heard in the Supreme Court of Queensland. The central issue for the court was whether severance of the murder charge was appropriate given the circumstances of the case, including the potential prejudice to the accused if tried together with the other charges.

The court considered the relevant legal principles governing severance of criminal charges, including the need to avoid potential prejudice to an accused. It examined the nature of the evidence that would be adduced at trial and the extent to which the other charges might prejudice the trial of the murder charge. The court concluded that there was a real possibility of prejudice to the accused if the murder charge was tried together with the other offences, given the nature of the evidence and the potential for confusion or spillover effects. Accordingly, the court granted the application for severance and ordered that the murder charge be tried separately from the other offences.

The court made an order that the charge of murder against AB and Baker be tried separately from the other charges. The reasoning and outcome of this case is likely to be of interest to practitioners dealing with severance applications in complex criminal cases involving multiple charges. The court's decision highlights the importance of carefully considering the potential for prejudice when deciding whether to grant a severance application.

Orders