R v AI, AD and JR - [2013] ACTCA 16

THE QUEEN v AI, AD AND JR
[2013] ACTCA 16 (10 April 2013)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – severance of an indictment – whether two or more accused charged with committing an offence should be tried jointly – where significant differences in the case against each accused – no proper basis to sever the indictment

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – severance of an indictment – whether two or more accused charged with committing an offence should be tried jointly – purpose of joint trials – involvement in the same criminal enterprise – same witnesses – acts in preparation performed together – all accused present for the incident

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – in general and right of Appeal – ability to appeal an interlocutory order in criminal proceedings – fragmentation of criminal proceedings

APPEAL AND NEW TRIAL – Appeal against an interlocutory order – appeal against order severing an indictment – only in exceptional circumstances – appeal allowed

Supreme Court Act 1933 (ACT), ss 37E, 37S

Aon Risk Services Australia Ltd v ANU (2008) 227 FLR 388

DPP (ACT) v AI & Ors [2012] ACTCA 23
Gibb and McKenzie v The Queen (1982) 7 A Crim R 385

House v The King (1936) 55 CLR 499
Khalil v His Honour, Magistrate Johnson and Anor [2008] NSWSC 1092
Kola v The Queen [2006] ACTCA 23

R v Demirok [1976] VR 244
R v Elliott (1996) 185 CLR 250
R v WR [2009] ACTSC 93

Yates v Wilson (1989) 168 CLR 338

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 12 – 2012
No. ACTCA 13 – 2012
No. ACTCA 14 – 2012
No. SCC 295 of 2009
No. SCC 268 of 2009
No. SCC 369 of 2009

Judges: Refshauge, Penfold and Burns JJ
Court of Appeal of the Australian Capital Territory
Date: 10 April 2013

IN THE SUPREME COURT OF THE     )
AUSTRALIAN CAPITAL TERRITORY           )          No. ACTCA 12 – 2012
COURT OF APPEAL  )          No. ACTCA 13 – 2012

No. ACTCA 14 – 2012
No. SCC 295 of 2009
No. SCC 268 of 2009
No. SCC 369 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN

Appellant
v

AI

AND:AD
AND:JR

Respondents

ORDER

Judges:  Refshauge, Penfold and Burns JJ
Date:  10 April 2013
Place:  Canberra

THE COURT ORDERS THAT:

Leave to appeal is granted.

The appeal is upheld.

The orders of the Chief Justice severing the indictment and ordering separate trials for each of the accused are set aside.

IN THE SUPREME COURT OF THE     )
AUSTRALIAN CAPITAL TERRITORY           )          No. ACTCA 12 – 2012
COURT OF APPEAL  )          No. ACTCA 13 – 2012

No. ACTCA 14 – 2012
No. SCC 295 of 2009
No. SCC 268 of 2009
No. SCC 369 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN…

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.

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Details

Case: [2013] ACTCA 16
Decision Date: 10 April 2013

CaseChat Overview and Summary

The Court of Appeal considered an appeal concerning the severance of an indictment against three accused, AI, AD, and JR, who were jointly charged with an offence. The Chief Justice had previously ordered separate trials for each accused, a decision that was now under review.

The central legal issue before the Court of Appeal was whether the Chief Justice erred in severing the indictment and ordering separate trials. This required the court to consider the principles governing the joinder and severance of charges against multiple accused, particularly when there are significant differences in the evidence against each. The court also had to determine the circumstances under which an appeal against an interlocutory order severing an indictment would be permitted.

The Court of Appeal reasoned that joint trials are generally favoured when accused persons are involved in the same criminal enterprise, share common witnesses, have performed acts in preparation together, or were all present for the incident in question. While acknowledging that differences in the case against each accused can be a factor, the court found that these differences did not, in this instance, provide a proper basis to sever the indictment. The court emphasised that appeals against interlocutory orders severing an indictment are only permissible in exceptional circumstances. Finding such circumstances to be present, the court allowed the appeal.

Consequently, the Court of Appeal granted leave to appeal, upheld the appeal, and set aside the Chief Justice's orders severing the indictment and directing separate trials for AI, AD, and JR.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is upheld.

3. The orders of the Chief Justice severing the indictment and ordering separate trials for each of the accused are set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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