R v Apps
[2019] ACTSC 249
•3 September 2019
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:
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.
Mr Fisher, alone, is also charged with aiding and abetting the applicant to commit the robbery and also with concealing or destroying evidence.
The alleged victim of the robbery is a Mr William Stevens.
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.
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.
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.
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) 181 CLR 41, 88-9). The concerns which support a joint trial in such circumstances include the trauma and inconvenience to witnesses which are involved in subjecting them to more than one trial; the increased time and expense involved in separate trials; and the highly desirable objective of avoiding inconsistent verdicts as between trials (R v Jones and Waghorn (1991) 55 A Crim R 159, 185).
2) Secondly, the accused bears the burden of establishing that there is a need for separate trials. Separate trials should not be ordered unless it is demonstrated that there is a real risk of positive injustice as a consequence of a joint trial (R v Bikic [2000] NSWSC 223; (2000) 112 A Crim R 163, 167 [22]-[23]).
3) Thirdly, while most joint trials may be productive of some degree of prejudice, prejudice of that sort will not be taken to amount to positive injustice unless it is of a kind which is not really amenable to nullification by judicial directions to the jury (R v Ditroia and Tucci [1981] VR 247, R v Jones and Waghorn (1991) 55 A Crim R 159, 185).
4) Fourthly, one situation in which there may be grounds for separate trials is where the evidence admissible against one accused is significantly different from the evidence admissible against the other (R v Darby [1982] HCA 32; (1982) 148 CLR 668, 678). Another, is where there is a likelihood that some evidence which is led against one accused will be prejudicial to the other, albeit inadmissible against him or her. A separate trial may be also required in some cases where the evidence against one accused may in effect swamp the jury’s consideration of the case against the other accused. The same may be true where the circumstances are such as to create a serious risk of an irrational finding of guilt by association (R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428, 431).
5) In R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported, 4); see also R v Baartman (Court of Criminal Appeal, 6 October 1994 unreported); R v Piller (1995) 86 A Crim R 249; R v Georgiou [1999] NSWCCA 125, [5]), Hunt CJ at CL identified three categories of case in which an order for separate trials may be warranted as follows:
a) Where the evidence against an applicant is significantly weaker than and different to the evidence admissible against other accused.
b) Where the evidence against a co-accused contains material which is highly prejudicial to the applicant although not admissible against him or her.
c) Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably (in the sense of significantly albeit incomeasurably) stronger by reason of the prejudicial material.
6) It is recognised, however, that such guidelines as have been proffered cannot be exhaustive and that each case will depend upon its own facts. Each case involves a discretionary balancing exercise in which the concerns which support a joint trial must be weighed against the prejudices to the applicant (R v Alexander [2002] VSCA 183; (2002) 6 VR 53, 67 [31]).
13. Different considerations may apply depending upon whether the trial judge is considering an application for severance at the outset of the trial or whether an appellate court is considering whether injustice has accrued to one of the accused from a joint trial (Ibid).
I was also provided with a decision of Davies J in the New South Wales Supreme Court, namely R v Iskandar [2011] NSWSC 1192. Paragraph 36 of this judgment was said to be particularly relevant. It states:
Secondly, and particularly in this case where the Crown relies on joint criminal enterprise, it would be extremely difficult for the jury to understand that admissions made by one participant in the joint criminal enterprise had to be entirely put out of their collective minds when considering the evidence against the other participant in the same enterprise in circumstances where they considered that the evidence about the admissions was reliable.
An examination of the above principles reveals that the starting point is that there should be joint trials of the co-accused but that a separate trial may be ordered where the accused has established, as stated in [12] of Henry, that “there is a real risk of positive injustice as a consequence of a joint trial”.
The applicant in this matter says that positive injustice will arise because the Crown case against him is significantly weaker than that against Mr Fisher and that evidence led against Mr Fisher will reflect, prejudicially, against him. Further the applicant says he will be severely prejudiced by Mr Fisher giving evidence implicating the applicant in order to mitigate the severity of the case against himself. Finally, and relying on Iskandar, the applicant says that he would be prejudiced by the difficulty the jury would face in distinguishing the import of the admissions made by Mr Fisher from the case that was admissible against the applicant.
The Crown concedes that the evidence against the applicant is weaker than that against Mr Fisher. Nevertheless the Crown submitted that there was still a strong case against the applicant, relying on both direct and circumstantial evidence, such that the primary position for a joint trial to be held was not dislodged.
An Amended Joint Case Statement is annexed to the affidavit of Ms Deguara. According to this statement, on 18 October 2017, Mr Stevens met Mr Fisher at a bus stop. Mr Fisher invited him to his apartment for a drink. As they were walking towards Mr Fisher’s residence they met the applicant who joined them in their journey. A little later they met a Ms Campbell, who is the mother of the applicant, and a Ms Murray, the applicant’s partner.
The now group of five then continued to the apartment. The apartment was occupied by Ms Campbell and her partner Mr Shane Sebbens. After they entered, the front door was locked. Mr Fisher picked up a baseball bat and hit Mr Stevens on the head. He demanded that Mr Stevens handover his money. The applicant then hit Mr Stevens, also to the head, with a metal bar and threatened to extinguish his life if he did not part with his money.
Mr Stevens was injured by the assaults. He handed over $150 and tried to escape. His first port of call was the front door, but he was impeded in his progress by continued assaults from the applicant. He did however manage to unlock the door and flee the scene. Continuing with the allegation, the Crown says that Mr Fisher chased Mr Stevens and, while doing so, removed a red jumper he was wearing and threw it to the ground. This jumper was later found to have a DNA deposits consistent, ignoring the inflated ratios suggested, with having emanated from Mr Fisher and Mr Stevens.
On the Crown case, Mr Sebbens was present in the apartment when the assault took place.
What then is the evidence against the two accused? Starting with Mr Fisher, there is his record of interview in which he describes meeting Mr Stevens at the bus station and inviting him back to the apartment. Secondly he was wearing the red jumper on which the DNA evidence was found. Mr Fisher told police which apartment had been involved. A search of this apartment located a baseball bat which has the DNA of Mr Fisher on the handle and the blood of Mr Stevens on the other end. Mr Fisher told police that during the robbery he told Mr Stevens to hand over some money, which he did, in the sum of about $170.
In his record of interview, Mr Fisher implicates the applicant, plainly painting him as the principal culprit in the enterprise.
The evidence against the applicant includes the information given to the police by Mr Fisher. The statement given by Mr Stevens is said to be consistent with the applicant’s involvement to the extent that another male, besides Mr Fisher, was involved and the assault took place at the home of the applicant’s mother. In addition Mr Sebbens is said to have told a Detective Senior Constable Stocks that he was present in the apartment when the assault took place and that the applicant had attacked Mr Stevens with a metal pole.
The Crown told me that it intended to call Ms Campbell, Ms Murray and Mr Sebbens as witnesses, but conceded that it was expected that if they answered their subpoenas to attend they would be unlikely to give evidence favourable to the Crown.
It was however submitted that the statement of Mr Sebbens to the police officer would be admissible against the applicant pursuant to s 66 of the Evidence Act 2011 (ACT).
The Crown acknowledged that the record of interview of Mr Fisher (implicating the applicant) would not, at a prima facie level be admissible against the applicant because of s 83 of the Evidence Act. Nevertheless the Crown said that the contents of the record of interview, to the extent that they described actions of the applicant, would be admissible under s 87(1)(c). The Crown also relied on other sections in the Evidence Act as a basis upon which parts of Mr Fisher’s record of interview would be admissible against the applicant.
I have some doubts about the admissibility of the contents of the record of interview against the applicant. That will finally be a matter for the trial judge to consider.
In relation to the directions to the jury the Crown submitted that joint trials are common and jury directions are equally commonly given distinguishing between cases against respective co-accused.
I think the possibility of a confused jury is the strongest point in the applicant’s favour. However, juries are frequently confronted with difficult concepts and the need to treat different accused separately. Concepts like tendency evidence, contextual evidence and circumstantial evidence all lead to specific directions which have the potential to be complicated but yet are made to juries frequently.
The applicant has pointed out that, because his case is that he simply was not present, it will not lead to an onerous cross-examination of the complainant. Nevertheless he will be required to attend for a second time, as will all of the other witnesses.
My initial impression in this case was that the evidence against Mr Fisher was so substantially stronger than that against the applicant, that it would be unjust for there to be a joint trial. However upon a more detailed examination of the evidence against the applicant, I am of the view that the applicant has not discharged his onus that there is a real risk of a positive injustice against him if he is tried together with Mr Fisher.
While I agree that the evidence against Mr Fisher is stronger, I do not agree that the evidence against the applicant is significantly weaker.
I make the following order: The application in proceeding filed on 22 August 2019 is dismissed.
| I certify that the preceding twenty eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 9 January 2020 |
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