R v Abel, Turner & Pendergast
[2003] VSC 468
•21 November 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1458 of 2003
| THE QUEEN |
| v |
| MICHAEL NOEL ABEL, JOHN JAMES TURNER AND WILLIAM JOHN PENDERGAST |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20-21 NOVEMBER 2003 | |
DATE OF RULING: | 21 NOVEMBER 2003 | |
CASE MAY BE CITED AS: | R v ABEL & ORS | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 468 | |
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application for separate trials
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr W Morgan-Payler QC with Ms J Condon | Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused Abel For the Accused Turner For the Accused Pendergast | Mr R Marron Mr G Lyon Mr W Toohey |
HIS HONOUR:
In this matter the accused Michael Noel Abel, John James Turner and William John Pendergast are charged with the murder of one Raymond John Learey at Hinnomunjie on 19 October 2001.
Application has been made on behalf of Turner for a separate trial from Abel and likewise application has been made on behalf of Pendergast for a separate trial from Abel. On 21 November 2003 I ruled that the applications for separate trials were refused, and that I would deliver my reasons for the ruling at a later date. These are those reasons.
The Crown case rests on a combination of circumstantial evidence and evidence as to admissions made by each of the accused as to conduct prior to, at the time of and after the killing.
It appears that there is no dispute as to a core sequence of events involving elements of joint or related conduct by the accused.
(a)Abel and Turner lured Learey to come after Abel by producing a tape recording which was played by Turner to Learey on the telephone and on which Abel made statements calculated to provoke retribution from Learey;
(b)after the contents of the tape were communicated to Learey, Learey travelled immediately to a meeting with Turner and was then driven by Turner to a property at Hinnomunjie on the High Plains;
(c)Abel and Pendergast were present at the property and Abel had his hands taped in a position that either in fact or appearance presented him as being held captive by Pendergast for Learey's attention;
(d)on arrival at the property but before coming into the immediate vicinity of Abel and Pendergast, Turner shot Learey in circumstances of confrontation which Turner maintains gave rise to an occasion of self-defence;
(e)after the killing Turner and Abel, in Pendergast’s presence covered the body with branches and returned to Pendergast's property;
(f)thereafter Turner and Abel disposed of the body at a remote concealed location and likewise disposed of a bag of bloodstained soil from the scene of death together with personal belongings of Learey.
(g)other items of Learey's property were thereafter disposed of by Turner and Abel;
(h)Abel made a series of withdrawals from Learey's bank accounts at various automatic teller machines between 19 October 2001 and 9 November 2001;
(i)Learey's death was not reported to the authorities until Abel spoke of it to police in May 2002.
The Crown case is that the killing of Learey was the outcome of a joint enterprise between the three co-accused.
The defence cases dispute a number of matters of detail but accept a core sequence of conduct occurred associated with Learey's death and in which each of the accused were, to some extent, involved. It appears that ultimately the defence of each accused takes issue with the Crown case as to the state of mind of each of the accused.
It is contended on behalf of Turner that the Crown case does not negative self-defence.
It is contended on behalf of Abel that he participated in the joint conduct which occurred leading up to the killing (and indeed thereafter) as a result of coercion from Turner and Pendergast. It is disputed that the Crown can prove that he was a party to an understanding or arrangement that Learey would either be killed or caused really serious injury which resulted in Learey's death.
It is contended on behalf of Pendergast that he was not a party to the joint conduct in which Abel and Turner engaged prior to the night of the killing and that the Crown can not prove that he was a party to an understanding or arrangement that Learey would be killed or caused really serious injury as a result of which Learey died.
The present applications for separate trials are made because in his record of interview Abel makes statements adverse to Turner and Pendergast. It is accepted by the Crown that the relevant statements are not admissible against Turner or Pendergast, and that directions should be given to the jury to this effect. It is nevertheless contended that these statements will be unfairly prejudicial to the defences of Turner and Pendergast in three ways:
(a)as attributing to them violent coercion of Abel and by implication violent character;
(b)as attributing to them other criminal characteristics and in particular an association with the production of illicit drugs; and
(c)as tending to confirm incidental matters of circumstantial detail which are adverse to their cases.
It is submitted that these matters taken together will result in a situation where in the words of Crockett J in Jones v Waghorn[1] not only will substantial prejudice arise from a joint trial "but that prejudice is of a kind not really amenable to nullification by jury directions".[2]
[1](1991) 55 A Crim R 159 at 164
[2]at 164
Mr Morgan-Payler QC who appears with Ms Condon to prosecute has submitted that these applications are premature and that it is only upon completion of the evidence that a concluded view could be reached that prejudice of the kind in issue will necessarily arise. I do not accept this submission. It is clear that cases may arise where an application for separate trials is properly refused when made prior to the evidence, but the course of the evidence demonstrates that a miscarriage of justice would arise if the joint trial were allowed to go to verdict. The authorities incidentally demonstrate that there was a particular risk in this regard in some cases where accused were permitted to make unsworn statements. In R v Demirok[3] the Full Court stated:
"In very rare cases, of which we think this is one, although the trial has been correctly conducted, the result may nevertheless have been to expose the accused man to a conviction influenced by material which was both inadmissible and highly prejudicial. In such a situation we think that it is not satisfactory to say that, the rules governing trials having been observed, there has been no miscarriage of justice. To do so is to elevate the rules above the end which they are designed to produce. The miscarriage lies in the fact that, despite the correction application of the various rules, the trial has not been of the kind which those rules are intended to produce."
[3][1976] VR 244 at 255
It does not follow, however, that there will not be cases where it is apparent from the outset that unacceptable prejudice will arise because of material emanating from one accused which will necessarily prevent the fair trial of a co-accused. Further, I accept Mr Toohey's submission on behalf of Pendergast that such prejudice may potentially constrain unfairly the forensic choices open to the defence with respect to a particular accused.
It follows that I do not accept the applications which have been made should simply be rejected as premature. They must be assessed on the basis of the material currently before the Court.
Although the discretion referred to by Crockett J must ultimately be an unfettered one responsive to the facts of the particular case and the overriding requirement to avoid a miscarriage of justice, the discretion to be exercised upon the assessment of the facts of the case involves consideration of certain well accepted principles.
In R v Demirok the Full Court stated, by reference to English authority, the usual approach adopted in cases where the essence of the Crown case is that the accused were engaged in a joint enterprise.
"In R v Grondkowski [1946]) KB 369 a woman and a man were jointly indicted for murder. The prosecution case was that they were engaged in a common enterprise to rob the deceased, and that in the course of the robbery the deceased was killed by a bullet wound from a revolver. Each of the accused sought to put the blame for the shooting on the other. An application for separate trials was made by one of the two accused and was refused. On the hearing of the appeal Lord Goddard CJ said at p.371:
'When an application is made by a prisoner indicted jointly with another that he should be tried separately it must be made at the outset of the trial, though not necessarily before plea, and the judge can only act upon the material then before him, which will ordinarily be the depositions and exhibits … Prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise, it is obviously right and proper that they should be jointly indicted and jointly tried, and in some cases it would be as much in the interest of the accused as of the prosecution that they should be. Suppose, for instance, that the defence of one was that he or she was acting under the positive duress of the other. It would be obviously right they should be tried by the same jury, who might see in one prisoner a harmless or nervous looking little man or woman, and in the other a savage brute whom they might deem capable of forcing his co-prisoner against his will into assisting in a crime. Another instance would be the case of an indictment against husband and wife'."
The Full Court went on to summarise the considerations of public interest which may be regarded as supporting joint trials[4]:
"The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeat of retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials."
[4]at 254
The principle that ordinarily a joint trial should be held where one accused is running a defence of duress was affirmed by the Full Court in R v Gibb and McKenzie[5].
[5][1983] 2 VR 155 at 161-2
In Webb and Hay[6] the accused were charged with murder. Hay sought a separate trial on the basis that in three records of interview Webb asserted Hay had engaged in a violent and sadistic attack on the deceased. It was argued that although the trial judge warned the jury that this evidence was not admissible against Hay, such a direction could not cure the overwhelming prejudice which would inevitably be caused to Hay. Toohey J (with whom Mason CJ and McHugh J agreed) stated the relevant principles[7] as follows:
"King CJ dealt with this ground by pointing out that 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 one seeks to cast the blame on the other'. What King CJ referred to as ‘strong reasons of principle and policy' were discussed by His Honour in Collie. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others (Demirok at 254). There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the use they may make of the evidence so far as it concerns each accused." (Citations omitted).
[6](1994) 181 CLR 41
[7]at 292-3
Toohey J stated further:
"It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hey. But as King CJ observed: 'That is a common feature of a joint trial and does not of itself render separate trials necessary.' Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of the evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred."
It follows from the above statements of principle that in a case such as the present prima facie there should be a joint trial. It is necessary for the accused to show that in this particular case the circumstances are such that the prejudice which may result from a joint trial is not amenable to judicial direction.
Mr Lyon, who appears for Turner, contended that such prejudice would arise in the present case by reason of Abel's statements when interviewed to the effect that:
(a)he was coerced into being used as a lure to get Learey to the property where Learey was shot;
(b) he was in fear of Turner at the time and in fear of his own life;
(c)Turner and Learey had had prior dealings relating to the production and distribution of illicit drugs;
(d)Abel was assaulted by an associate of Learey in the presence of Turner after Learey's disappearance;
(e)Abel was in ongoing fear of Turner for himself and his family; and
(f)Abel's account of the shooting includes reference to hearing two shots only while Turner's account asserts that there were three shots, one fired by Learey and two thereafter fired by Turner causing the two wounds found in Learey's body.
Mr Lyon supported these summary propositions by comprehensive reference to the record of interview. It can be seen when the statements complained of are read as a whole the principal adverse allegation made with respect to Turner relates to his character. In particular it is repeatedly asserted both explicitly and implicitly that Turner is and was at the time of Learey's death a violent man capable of coercing Abel. In my view this allegation does not justify a joint trial having regard to the following matters.
(a) the coercion of Abel will be directly contested by the Crown;
(b)it will be assessed by the jury in the context of an obvious motive, namely fear of Turner on the part of Abel by reason of his betrayal of the fact of the killing;
(c)the allegation of coercion is an allegation of a type commonly made in an attempt to shift blame between co-accused. It is an allegation of a type which of itself is not generally regarded as justifying separate trials;
(d)the allegations are inadmissible against Turner; and
(e)the allegations are susceptible to simple and forceful directions as to how the jury should regard Abel's allegations in dealing with the case against Turner.
The allegations that Turner was involved in illicit drug production and distribution are not sufficient to change this conclusion. Firstly, Turner's association with the drug trade will, in any event, be the subject of direct and admissible evidence in the Crown case. Secondly, the allegations in issue are not allegations of prior violent crime such as murder or armed robbery and the degree of prejudice to Turner's case on the issue of self-defence is debatable. The evidence adduced by the Crown will show a relationship in which both Learey and Turner had an involvement with the production of drugs. As such any implication that this association carries with it implications of possible violence does not detract from the possibility that Learey attacked Turner prior to his death. This possibility is central to Turner's defence.
The particular matter of detail relating to Abel's account of two shots likewise does not, when added to the matters referred to, give rise to sufficient prejudice. This account is inadmissible against Turner and the Crown can not put its case against Turner on the basis of it. It exemplifies the need for appropriate directions.
It follows that I am not persuaded that the usual rules should be varied in the present case and I am not satisfied the interests of justice require Turner should be tried separately from Abel.
I turn then to the application made on behalf of Pendergast. Mr Toohey submitted that the prejudice to Pendergast which would result from a joint trial with Abel would not be amenable to nullification by direction to the jury. He emphasised that Pendergast is a man of good character with no prior convictions and I note that Mr Morgan-Payler confirmed that it is the Crown position that there is no evidence to the contrary. It was said Pendergast was prejudiced:
(a)by the way in which Abel implicated him in the sequence of events associated with the killing;
(b)by the attacks Abel made on Pendergast's character; and
(c)by the allegations Abel made that he was in fear of Pendergast and acted under duress from Pendergast.
More particularly Mr Toohey referred to allegations by Abel in his records of interview:
(a)that Abel was tied to a tree by Pendergast prior to the killing and that Pendergast was at that time armed with a shotgun;
(b)that Pendergast had made threats of violence to Abel and his family;
(c)that Pendergast used Abel as a "guinea pig";
(d)that Pendergast was involved in the stealing and stashing of Learey's property after his death;
(e)that Pendergast was involved in the initial concealment of Learey's body;
(f)that Pendergast had a hydroponic marijuana crop on his property;
(g)that Pendergast was a party to a joint plan with Turner to use violence and was capable of and willing to shoot Abel;
(h)that Pendergast was involved in the plan to lure Learey by means of the tape;
(i)that Pendergast was involved in a situation in which Learey could not get money back; and
(j)that Pendergast told Abel what to do.
In summary Mr Toohey submitted there were some 43 occasions when Abel said things in his record of interview which were absolutely damaging to Pendergast's case.
In answer Mr Morgan-Payler submitted in part that it was the Crown case Pendergast was a late participant in the venture, but that upon returning from Gippsland at the request of Turner, Pendergast joined in the common enterprise to kill or seriously injure Learey. Further, he had made admissions as to presence at the time of the critical events including admissions that he had a loaded shotgun leaning against his utility when he was with Abel prior to Learey's death; that he taped Abel's hands together in some way; and that he was present when the body was covered up after the killing.
Mr Morgan-Payler further submitted that the core allegation of coercion which underlay Mr Toohey's submission was not uncommon between co-defendants and should not lead to a displacement of the general rule that a joint trial is appropriate.
In my view the passages complained of by Mr Toohey are properly characterised as primarily comprising allegations of coercion and embroiderment of the circumstances of such coercion. They do not justify a separate trial but require appropriate directions. Like considerations apply to those affecting the arguments put on behalf of Turner for a separate trial on the basis of similar allegations.
The additional consideration of incidental details asserted by Abel and not admitted by Pendergast which would implicate Pendergast in a joint enterprise with Turner do not, in my view, justify a different conclusion. They have no special quality of prejudice which would displace the ordinary rule. Lastly, the allegation of involvement with drugs is of a limited nature in the case of Pendergast. It is inadmissible against him. It is not supported by the Crown and is susceptible of an appropriate direction.
For the above reasons the applications for separate trials are refused.
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