R v Alkanaan, R v Toleafoa - [2014] NSWSC 1479

Supreme Court

New South Wales

Medium Neutral Citation: R v Alkanaan, R v Toleafoa [2014] NSWSC 1479
Hearing dates: 16/10/2014,24/10/2014 (Final Written Submissions)
Decision date: 31 October 2014
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Application for separate trials of Counts 3 and 4 on the Indictment presented on 4 April 2014 dismissed.

Catchwords: CRIMINAL LAW - procedure - sever charges on indictment, application to - murder charge - two conspiracy charges - Criminal Procedure Act 1986, s 21 and s 29 - accused person may be prejudiced or embarrassed in his defence by reason of being charged with the conspiracy charges, whether- evidence of conspiracy counts admissible on the murder count -directions by trial Judge on conspiracy counts - will overly complicate trial, whether - will distract the jury from its determination in the murder count, whether - interests of administration of justice - interests of justice - severance refused
Cases Cited: Kuehne v R [2012] NSWCCA 270
McCarthy v Regina (1984) 14 A Crim R 155
McKey v Regina [2012] NSWCCA 1
R v Assim [1966] 2 QB 249
R v Ceissman [2010] NSWCCA 50
R v Verma (1987) 30 A Crim R 441
Samadi and Djait v Regina [2008] NSWCCA 330; (2008) 192 A Crim R 251
Category: Principal judgment
Parties: Falah Alkanaan (Applicant)
Ben Toleafoa (Co-Accused)
Director of Public Prosecutions (Crown)
Representation:
Counsel:
C G Wendler / W Soon (Applicant) (Co-Accused)
C Patrick (Crown)
Solicitors:
Van Houten Law (Alkanaan)
Director of Public Prosecutions (Crown)

File Number(s): 2013/405902013/175973
Publication restriction: Hereby order that the publication restriction made on 31/10/2014 in R v Alkanaan, R v Toleafoa [2014] NSWSC 1479 be lifted.

Judgment

On 4 April 2014, Mr Falah Alkanaan was arraigned on an Indictment which contained three counts to each of which he pleaded not guilty.

His co-accused, Mr Ben Toleafoa, was also arraigned on the same day with respect to one count (Count 2) on the same Indictment. He also pleaded not guilty.

On 2 May 2014, the trial of the charges was fixed to take place on 16 February 2015, for an estimated period of five weeks.

On 25 July 2014, Mr Alkanaan filed a Notice of Motion in which he sought an order pursuant to s 21(2) of the Criminal Procedure Act 1986 severing Counts 3 and 4 on the Indictment, and an order that Counts 3 and 4 be tried separately from the other counts.

Mr Toleafoa did not join in that application, and made no submission with respect to it.

For the reasons which follow, the application should be dismissed.

The Indictment

The Indictment charges Mr Alkanaan with three offences. They are:

(1) On 2 February 2013, at Blackett in the State of New South Wales, did murder Hussein Khanafer.

(2) [Charge against Ben Toleafoa].

(3) Between 8 February 2013 and 7 March 2013, at Silverwater and elsewhere in the State of New South Wales, did conspire with Peta Dawson and Arna-Maree McMiles to induce a person to…

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: [2014] NSWSC 1479
Decision Date: 31 October 2014

CaseChat Overview and Summary

The respondents, Alkanaan and Toleafoa, were charged with various offences, including murder, in the Supreme Court of Victoria. They applied to sever the murder charge from two conspiracy charges on the indictment. The applicants argued that the conspiracy charges would prejudice or embarrass them in their defence against the murder charge. They also argued that evidence of the conspiracy counts would be inadmissible on the murder count, and that the trial judge's directions on the conspiracy counts would overly complicate the trial and distract the jury from its determination in the murder count.

The court considered whether the conspiracy charges should be severed from the murder charge. The court noted that the interests of justice must be balanced against the interests of the administration of justice. The court held that the conspiracy charges should not be severed from the murder charge because the conspiracy charges were relevant to the murder charge and would not overly complicate the trial or distract the jury. The court also held that evidence of the conspiracy counts would be admissible on the murder count, and that the trial judge's directions on the conspiracy counts would not distract the jury from its determination in the murder count.

The application to sever the murder charge from the conspiracy charges was refused. The court held that the conspiracy charges were relevant to the murder charge and would not prejudice or embarrass the applicants in their defence against the murder charge. The court held that the conspiracy charges should not be severed from the murder charge because it would not be in the interests of justice or the administration of justice.

The court ordered that the murder charge and the two conspiracy charges should be tried together. The court held that evidence of the conspiracy counts would be admissible on the murder count, and that the trial judge's directions on the conspiracy counts would not distract the jury from its determination in the murder count. The court held that the conspiracy charges were relevant to the murder charge and that the trial of the charges together would not be in the interests of justice or the administration of justice.

Orders