R v Apps

[2019] ACTSC 249

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Apps

Citation:

[2019] ACTSC 249

Hearing Date:

3 September 2019

DecisionDate:

3 September 2019

Before:

Elkaim J

Decision:

The application in proceeding filed on 22 August 2019 is dismissed.

Catchwords:

CRIMINAL LAW – EVIDENCE – Application in proceeding – two offenders – aggravated robbery by way of joint commission – application to sever indictment and separate trial of co-accused – where the case against the applicant is alleged to be significantly weaker than co-accused – whether or not there is a real risk of positive injustice as a consequence of joint trial

Legislation Cited:

Evidence Act 2011 (ACT) ss 66, 83, 87

Cases Cited:

R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248

R v Iskander [2011] NSWSC 1192

Parties:

The Queen (Respondent)

Aren Apps (Applicant)

Representation:

Counsel

S Naidu (Respondent)

P Bevan (Applicant)

Solicitors

ACT Director of Public Prosecutions (Respondent)

Bevan & Co Lawyers (Applicant)

File Numbers:

SCC 137 of 2019

ELKAIM J:

1. The applicant is one of two accused facing trial, as joint offenders, on 30 September 2019. The indictment, which is dated 9 July 2019, alleges that the applicant and a Mr Toby Fisher committed a robbery in company with each other on 18 October 2017 and at the time had an offensive weapon with them.

1. Mr Fisher, alone, is also charged with aiding and abetting the applicant to commit the robbery and also with concealing or destroying evidence.

1. The alleged victim of the robbery is a Mr William Stevens.

1. The applicant does not wish to be tried together with Mr Fisher. This application, which was filed on 22 August 2019, seeks an order that the applicant’s trial date of 30 September 2019 be vacated and that the indictment be severed so that he can be tried separately to Mr Fisher.

1. I was told Mr Fisher had been notified of the application. He did not attend and I have proceeded on the basis that he takes no interest in whether or not he is tried alone or together with the applicant.

1. The application is supported by an affidavit of the applicant’s solicitor, Mr Luke Vozella, sworn on 19 August 2019. The Crown relies on an affidavit of Ms Stephanie Deguara, an employee of the Director of Public Prosecutions, affirmed on 2 September 2019.

1. The principles to be applied in an application of this sort are often repeated, but were comprehensively set out by Nettle AJA (as he then was) in the New South Wales Court of Criminal Appeal in R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248, from [12]:

12. The principles which govern an application for separate trials are tolerably clear: 

1) First, there are strong reasons of policy and principle why persons charged with committing an offence jointly or charged as participants in different degrees in relation to the same offence should be tried together (Webb v The Queen [1994] HCA 30; (1994)…