R v Braysich
[2006] WASCA 220
•26 OCTOBER 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: R -v- BRAYSICH [2006] WASCA 220
CORAM: MARTIN CJ
WHEELER JA
ROBERTS-SMITH JA
HEARD: 25 JULY 2006
DELIVERED : 26 OCTOBER 2006
FILE NO/S: CACR 163 of 2005
BETWEEN: THE QUEEN
Appellant
AND
JEFFREY JOSEPH BRAYSICH
Respondent
ON APPEAL FROM:
For File No : CACR 163 of 2005
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WILLIAMS DCJ
Citation :THE QUEEN v JEFFREY JOSEPH BRAYSICH
File No :IND 1691 of 2004
Catchwords:
Criminal law and procedure - Application to set aside the trial Judge's order that the respondent and coaccused be tried separately - Allegation that the respondent joined an illegal enterprise being undertaken by the coaccused - Buying and selling of shares contrary to the Corporations Act 2001 (Cth) - Consideration of whether any evidence adduced at a joint trial would create a likelihood of prejudice to the respondent - Whether the evidence adduced would be almost identical whether by way of separate or joint trials
Legislation:
Corporations Act 2001 (Cth), s 131(1), s 232, s 998(1)
Criminal Procedure Act 2004 (WA), s 133
Justices Act 1902 (WA), s 100
Result:
Appeal allowed
Order for separate trials quashed
Category: B
Representation:
Counsel:
Appellant: Mr S D Hall SC & Ms E C Needham
Respondent: Mr M J McCusker QC & Mr J McGrath
Solicitors:
Appellant: Commonwealth Director of Public Prosecutions
Respondent: Tottle Partners
Case(s) referred to in judgment(s):
Ahern v The Queen (1988) 165 CLR 87
Clark & Forge v The Queen [2004] WASCA 217; (2004) 50 ACSR 592
Commonwealth Director of Public Prosecutions v Daniel Wilkie & Ors (Separate trial application of Stephen Burroughs), unreported; SCt of NSW (Latham J) 11540/05; 20 May 2005
R v Avis [2000] WASC 281
R v Bilick & Starke (1984) 36 SASR 321
R v Davidovic (1990) 51 A Crim R 197
R v Dinh (2000) 120 A Crim R 42
The State of Western Australia v Bowen (2006) 32 WAR 81
The State of Western Australia v GBT [2006] WASCA 75
The State of Western Australia v Tolliday [2004] WASC 231
Tripodi v The Queen (1961) 104 CLR 1
Webb v The Queen (1994) 181 CLR 41
Case(s) also cited:
Attorney General's Reference No 1 of 1977 [1979] WAR 45
Australian Coal & Shale employees' Federation v Commonwealth (1953) 94 CLR 621
Carter v The Queen (1997) 19 WAR 8
Cowley v The Queen, unreported; CCA SCt of WA; Library No 6886; 13 October 1987
De Jesus v The Queen (1986) 61 ALJR 1
Forge and Clark v The Queen (2004) 50 ACSR 592
R v Brown [1990] VR 820
R v Darby (1982) 148 CLR 668
R v Demirok [1976] VR 244
R v Georgiou [1999] NSWCCA 125
R v Gibb & McKenzie [1983] 2 VR 155
R v Ho, unreported; CCA SCt of NSW; 18 July 1994
R v Hoar (1981) 148 CLR 32
R v Matovski (1989) 15 NSWLR 720
R v Millewski [1908] St R Qd 26
R v Novac (1976) 65 Cr App Rep 107
Saunders (1994) 72 A Crim R 347
MARTIN CJ:
Summary
This is an appeal from an order of a Judge of the District Court made pursuant to s 133 of the Criminal Procedure Act 2004 (WA) to the effect that all charges preferred against the respondent ("Braysich") be tried separately from those preferred against another accused person ("Scook") joined with Braysich in the one indictment.
The Judge at first instance made the order for separate trials because he held that the evidence admissible against Braysich at a joint trial would only be a small fraction of the evidence to be led against Scook. In my opinion, that view of the likely admissibility of the evidence is not correct, because the prosecution case against Braysich relies upon an allegation that he joined an illegal enterprise being undertaken by Scook. If at trial there is reasonable evidence to support that assertion, all the evidence of transactions undertaken by Scook will be admissible against Braysich to establish the unlawful enterprise which he is said to have joined.
On the basis of the evidence foreshadowed by the prosecution it is more likely than not that the evidence admissible against each accused will be identical. So it cannot be concluded that a joint trial would create a likelihood of prejudice to Braysich, and there is therefore no power to order separate trials.
Reasons
The Indictment
The indictment prefers a total of 280 counts against Braysich and Scook. Twenty‑one of those counts are brought against Braysich. Fifteen of those counts (numbers 260 ‑ 265, 267 ‑ 272 and 276 ‑ 278) allege that Braysich created a false or misleading appearance of active trading in the ordinary fully paid shares of Intrepid Mining Corporation NL ("Intrepid") in that he caused to be made an offer, being in some cases an offer to buy, and in other cases an offer to sell, a specified number of shares in Intrepid at a particular price per share and thereby caused to be carried out a transaction that did not involve any change in the beneficial ownership in respect of a specified parcel of shares in Intrepid, contrary to s 998(1) and s 131(1) of the Corporations Act 2001 (Cth). A further six counts (being numbers 266, 273 ‑ 275 and 279 ‑ 288) allege that Braysich created a false or misleading appearance of active trading in the ordinary fully paid shares of Intrepid in that he caused to be carried out transactions that did not involve any change in the beneficial ownership of a specified number of shares in Intrepid, contrary to the same sections of the Corporations Act. All offences are said to have been committed between 2 February 1998 and 24 February 1998.
A superficial comparison of the fact that 21 counts are brought against Braysich as compared to the 259 counts brought against Scook is capable of leading to a mistaken impression of the extent of the overlap in the prosecution cases against each of them. The first reason for that is that 100 of the counts brought against Scook are brought against him in the alternative, so that he could only ever be convicted of a maximum of 159 counts.
The second reason is that in respect of all but two of the counts preferred against Braysich, counts have been brought against Scook in respect of precisely the same transaction. In the case of one transaction, two counts have been brought against Scook in respect of it, in the case of another, four counts have been brought against Scook and in the case of another, five counts have been brought against Scook. So 27 of the counts which have been brought against Scook arise from precisely the same acts or events as have given rise to the counts against Braysich.
It is obviously difficult to summarise the large number of counts that have been brought against Scook, but all of them allege contraventions of the same sections of the Corporations Act as alleged against Braysich by reason of the creation of a false or misleading appearance of active trading in the shares of Intrepid. The offences alleged against Scook are said to have taken place between 2 January 1998 and 27 February 1998.
The Prosecution Case
The Judge at first instance had before him the statement made by the prosecution pursuant to s 100 of the Justices Act 1902 (WA) summarising the case against Braysich. It discloses that at trial, the prosecution will allege that the context in which the offences committed by Braysich are said to have taken place, includes an announcement made on 14 October 1997 by Intrepid to the effect; that it had entered into a letter of intent with Cobra Resources NL ("Cobra") to enter into an option agreement to acquire either all the assets and liabilities of Cobra or subject to certain preconditions, 100 per cent of the issued capital of Cobra. The announcement is said to have caused a surge in trading in the shares of Intrepid and a substantial increase in the price at which those shares traded. In the months that followed, Intrepid took various steps which constituted satisfaction of conditions precedent to its agreement with Cobra so it will be alleged that by 5 January 1998 Intrepid announced that it would proceed to acquire all of the issued shares in Cobra and thereby acquire all of Cobra's mineral assets.
It appears from the statement made pursuant to s 100 that the prosecution will allege that Braysich was a director of Paul Morgan Securities Pty Ltd ("Paul Morgan") and worked for that company as a stockbroker. It will be alleged that he was involved in a placement of 7,000,000 shares in Intrepid which was sponsored and underwritten by Paul Morgan. The prosecution will allege that in early January 1998, Scook contacted Braysich and advised that he wished to acquire some of the Intrepid shares which were to be placed in the course of the issue underwritten by Paul Morgan. It will further be alleged that Braysich became an advisor and broker to Scook, who traded with Paul Morgan through a company which Scook controlled - Challiston Pty Ltd ("Challiston"). It will be further alleged that Challiston's trading in Intrepid shares through its account with Paul Morgan was financed by loans extended by Walthamstow Pty Ltd ("Walthamstow"). Because Walthamstow was financing the acquisition of Intrepid shares by Challiston, when those shares were sold, the proceeds of sale were credited to Walthamstow's account. Further, it is asserted that Walthamstow held the scrip for the Intrepid shares acquired as a result of the provision of its finance as security for recovery of the funds advanced. It will be alleged that Braysich was aware of these terms. It will further be alleged that pursuant to the same general arrangement, Braysich arranged for 2,050,000 Intrepid shares to be allotted to Walthamstow, to be held by Walthamstow on behalf of Challiston, as security for the funds to be advanced by Walthamstow to enable those shares to be acquired.
It will be further alleged that Braysich was personally involved in completing documents recording transactions undertaken by, or through the agency of, Paul Morgan on the accounts of each of Challiston and Walthamstow, including almost all of the sell order notes on the Walthamstow account pertaining to Intrepid shares.
At trial, the prosecution will allege that transactions which involved the transfer of shares from the Walthamstow account at Paul Morgan as vendor, to the Challiston account at Paul Morgan as purchaser, were transactions that involved no change in beneficial ownership, to the knowledge of Braysich. That is because the prosecution allege that the Intrepid shares booked to the Walthamstow account at Paul Morgan were beneficially owned by Challiston and were only booked to the Walthamstow account as and by way of security for the funds advanced by Walthamstow on behalf of Challiston to enable the purchase of the shares.
The trial Judge also had before him the statement made by the prosecution pursuant to s 100 of the Justices Act in respect of the charges brought against Scook. That statement refers to the same general circumstances pertaining to the takeover of Cobra by Intrepid and then refers to Scook's commencement of trading in shares of Intrepid in about October 1997. In the case against Scook, the prosecution will allege that further trading by Scook and his associated entities in the shares of Intrepid was financed by Walthamstow from about November 1997. The prosecution case against Scook also relies upon the communications between him and Braysich in respect of obtaining a portion of the placement to be underwritten by Paul Morgan and upon the transactions undertaken by Challiston and Walthamstow during January 1998, including transactions undertaken through the agency of Braysich. In addition, the case against Scook will involve allegations of other trading in Intrepid through brokers other than Paul Morgan and Braysich. Apparently, it is not part of the prosecution case against either Scook or Braysich, that Braysich was aware of those transactions. However, the prosecution allege that the transactions undertaken by Scook through the agency of Paul Morgan and Braysich were part of a continuing enterprise undertaken by Scook and Braysich, which had as its purpose and effect the creation of a false or misleading appearance of active trading in the shares of Intrepid. It will be alleged that the transactions undertaken by Scook through other brokers were part of an enterprise which Braysich joined.
Thus, in essence, the prosecution case is that Scook embarked upon a criminal enterprise as and from 2 January 1998, which enterprise was unwittingly effected by Braysich between 20 January 1998 and 2 February 1998, upon which day it is alleged by the prosecution that Braysich became a knowing participant in the criminal enterprise, and thereafter remained a participant in such enterprise until 24 February 1998 (or thereabouts).
The Witnesses
The prosecution have foreshadowed the calling of 56 witnesses. Although there is some ambiguity as to precisely how the matter was put to the Judge at first instance, arising from the possibly misleading nature of some of the schedules he was given by the prosecution, before us, it was made clear that the prosecution contend that the evidence of all witnesses is admissible against both accused. It is accepted that in the case of some 30 of those 56 witnesses, their evidence goes only to transactions undertaken by or at the behest of Scook and in respect of which it is not alleged that Braysich had any knowledge or involvement. However, the prosecution case is that the evidence is admissible against Braysich because it establishes the criminal enterprise which he joined on 2 February 1998.
By contrast, on the basis of admissions that he is prepared to make, Braysich submits that if there were a separate trial against him, only seven witnesses would need to be called.
The Decision at First Instance
The Judge at first instance commenced by recounting the circumstances in which the application came to be made. In the course of doing so, he observed, of Braysich (at [7]):
"… Nor is it alleged that he was involved in the 259 counts which have been preferred against Mr Scook. The case against the applicant is simply that on the 21 occasions the subject of the counts against him, when he completed sell or buy order notes, there was no change in beneficial ownership of the shares."
The trial Judge appears to have taken these observations directly from the written submissions lodged on behalf of Braysich. There is, of course, nothing wrong with that, but it will be apparent from my description of the cases against each of Braysich and Scook that these observations are erroneous in two respects:
(a)charges have been preferred against Scook arising from all but two of the 21 transactions which have given rise to charges against Braysich;
(b)the case against Braysich is to the effect that the 21 offences he committed were committed as part of a criminal enterprise undertaken by him and Scook, which enterprise he joined on 2 February 1998.
The Judge at first instance next recorded the submission on behalf of Braysich to the effect that on the prosecution's own appraisal of the brief, only 17 of the 57 witnesses proposed to be called at trial are relevant to the case against him. While that submission is understandable, having regard to the ambiguity of the schedule prepared by the prosecution, and to which I have referred, it is clear that the prosecution case, both at first instance and before us, was and is to the effect that all the witnesses who would be called at a joint trial, would also be called at a separate trial against Braysich. This is because their evidence would be relevant and admissible to establish the alleged common enterprise which Braysich joined.
The trial Judge next recorded the submission on behalf of Braysich to the effect that out of the 57 witnesses identified by the prosecution, in fact only 10 were relevant to the case against Braysich. Of those, only four would give any substantive evidence, together with an expert witness. It seems that the submissions on behalf of Braysich at first instance were cast slightly differently, although in the same order of magnitude as the submissions put to us.
The Judge at first instance then set out the legal principles he proposed to apply in the following paragraph (at [10]):
"In deciding whether to order separate trials the court will take into account the following 'matters of interest' (see R v Demirok [1976] VR 244, 254):
(1)The administrative matters of court time and public expense that may result.
(2)That 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 the differences should be resolved by the same jury at the same trial.
(3)The desirability of reaching finality 'as expeditiously as possible; no system could function if it permitted the repeated retrial of the same issues'.
(4)The convenience of witnesses, who 'should not be required to give evidence of the same events at a success of trials'."
Because his decision was given in September 2005, obviously the Judge at first instance did not have available to him the decision of this Court in The State of Western Australia v Bowen(2006) 32 WAR 81. In that case, Pullin JA held that while considerations pertaining to matters of public interest, such as the wasted cost and time if more than one trial were conducted, the desirability of avoiding inconsistent verdicts and reaching finality as expeditiously as possible and the convenience of witnesses explained and justified the enactment of provisions which enabled the joinder of charges of two or more persons; they were not factors relevant to the exercise of the discretion under s 133 and that comments to the contrary in The State of Western Australia v Tolliday [2004] WASC 231 and R v Avis [2000] WASC 281 (which concerned s 624 of the Criminal Code (WA)) should not be treated as applicable to s 133. In his Honour's view at [26], "Section 133 does not require these policy considerations to be taken into account in the exercise of the discretionary power conferred by the section". In his Honour's view, the critical question was whether, by reason of a joint trial, there would be a substantial miscarriage of justice or improper prejudice created against an accused (relying on Webb v The Queen (1994) 181 CLR 41, 88). In Bowen (supra), Roberts‑Smith JA agreed with Pullin JA on the question of the construction of s 133. His Honour held (at [6] ‑ [7]):
"It is important to appreciate that s 133(4) presupposes an indictment charging more than one accused. In that circumstance, where one of those jointly charged is concerned that they may be prejudiced by a joint trial, that accused may apply to the court for an order under s 133(4). It is only if the court is satisfied the accused is likely to be prejudiced (notwithstanding any direction to the jury) that the court can make such an order. If the court is not so satisfied, the application must be dismissed and the (joint) indictment will stand.
I agree with Pullin JA that there is no room - and indeed no purpose - in the exercise of this statutory discretion for any consideration of administrative matters, such as court time and public expense, or even matters such as the possibility of inconsistent verdicts, forensic expedition, the interest of witnesses and the like. These are matters which bear upon the exercise of the prosecutorial discretion whether or not to charge multiple accused jointly. A decision having been made to present an indictment charging a number of accused jointly, the court will only order severance (in one of the ways contemplated in s 133(4)(a) or (b)) if satisfied an accused so charged is likely to suffer such prejudice from a joint trial, that it cannot be guarded against by a judicial direction."
Although agreeing in the result, Buss JA did not agree with the other members of the Court in relation to the construction and effect of s 133. In his view (at [67]):
"... whether or not the Court's discretionary power under s 133(4), to order separate trials, should be exercised, is not to be determined solely by a decision, under s 133(5)(a), as to the efficacy of a direction in guarding against the likelihood of prejudice. Section 133(5) emphasises that the Court may refuse to order separate trials on the ground that the likelihood of prejudice to the accused can be guarded against by a direction, notwithstanding the existence of any of the matters referred to in pars (b) and (c) of that subsection. Otherwise, the provisions of s 133(4) and (5) do not specify, emphasise or restrict the considerations which the Court may take into account in determining whether or not to exercise its discretionary power under s 133(4). In my opinion, if a Court is satisfied, for the purposes of s 133(4), that an accused is likely to be prejudiced by a joint trial, then, subject to s 133(5), the considerations which the Court may take into account in deciding whether or not to order separate trials are those which were relevant prior to the enactment of s 133. The overriding question is whether separate trials are required to ensure that both or all of the accused receive a fair trial. The determination of that question involves a consideration of the interests of the accused and also the public interest."
Thus there is a conflict between the principles enunciated in Demirok (supra) upon which the Judge at first instance relied and the majority decision of this Court in Bowen (supra). However, for reasons which I will endeavour to develop, it does not seem to me that in the circumstances of this particular case, adoption of the principle enunciated by the majority in Bowen would make any material difference to the outcome of the appeal.
Returning to the reasons for decision at first instance, after setting out the principles which he extracted from the decision in Demirok (supra), the trial Judge summarised the arguments of each of the parties in relation to each of those principles. From those summaries, it is clear that the Judge appreciated that the prosecution proposed to advance a case against Braysich on the basis that on 2 February 1998 he had joined an enterprise that had been commenced by Scook on 2 January 1998.
The Judge at first instance nevertheless found there to be weight in a submission on behalf of Braysich to the effect that he would suffer prejudice in the course of a joint trial by reason of the leading of voluminous evidence relating to the 259 charges against Scook, almost all of which was said to be irrelevant to the charges against Braysich, and the leading of which would create a risk of confusion in the minds of the jury. His Honour further found that (at [26]):
"… The vast majority of the evidence in relation to the trial of Mr Scook would be irrelevant to the indictments in relation to the matters the subject of the counts against the applicant. At the end of the day the Crown sought to assert that all of the evidence against Mr Scook was admissible against the applicant. I did not understand the Crown's case to be such during the hearing of the matter and it appears to be totally at odds with attachment C to the Crown's written submission and totally contrary to what the Crown had been saying to me. It is not my position at this hearing to ascertain what evidence is or is not admissible on a joint trial but it would seem that in relation to this submission the Crown would not appear to get any assistance from s 31A of the Evidence Act for the reason that it would not be evidence of the conduct of the applicant (s 31A(1)(a))."
Because of that finding, the Judge at first instance also accepted (at [27]):
"... the submission of the applicant that the voluminous material that would be led in a joint trial, most of it inadmissible against the applicant, would also impose an unnecessary and very significant burden upon the jury. The jury, as the trier of fact would be greatly assisted by two separate trials. The separate and different case against each accused would be much clearer and simpler, and there would be no need for directions to the jury as to which evidence would be admissible against each accused. The result would be a fairer trial. A joint trial serves only the convenience of the prosecution."
Two observations can be made immediately about the views expressed in these paragraphs of the reasons of the Judge at first instance. First, the proposition that the Judge did not understand it to be the prosecution case that all the evidence against Mr Scook was admissible against Braysich is inconsistent with his earlier reference to the prosecution's reliance upon the alleged common enterprise in [15] and [18] of his reasons for decision.
The second observation is that his Honour's assertion that it was not his position to ascertain what evidence is, or is not, admissible on a joint trial appears inconsistent with:
(a)his conclusion at several points in his reasons that most of the evidence to be adduced at a joint trial would be inadmissible as against Braysich; and
(b)the need for a Judge hearing an application under s 133 to be satisfied, before exercising any of the powers conferred by that section, that an accused is likely to be prejudiced by a joint trial (at least in a case where the prejudice is said to arise from differential admissibility of evidence as against each accused; (see The State of Western Australia v GBT [2006] WASCA 75 at [49] ‑ [51]).
Acceptance by the Judge at first instance of the proposition that the evidence admissible against Braysich at a joint trial would be much less in volume than the evidence admissible against Scook, also appears to provide the basis for his conclusion that the prejudice to be suffered by Braysich in the event of a joint trial could not be overcome by judicial direction, and that Braysich would suffer great personal prejudice and family and financial hardship if there were not separate trials.
His Honour concluded that if separate trials were ordered, there would be only 10 witnesses relevant to the trial of Braysich and the evidence of four of those witnesses would be admitted without the need to call them, two would be subject to very limited cross‑examination and the evidence of two others could be substantially reduced. His Honour therefore concluded that an order for separate trials would not result in any increase in total court time. For those reasons, his Honour made the order directing separate trials of the counts alleged against Scook from the trial of the counts alleged against Braysich.
It can thus be seen that the conclusion of the Judge at first instance depended critically upon his finding that the evidence admissible against Braysich in the course of a joint trial would be much less in scope than that admissible against Scook. In the course of argument before us, counsel for Braysich appropriately accepted that if his Honour's view as to the scope of the evidence relevantly admissible against each of the accused was erroneous, the entire basis for his order fell away (see The State of Western Australia v GBT (supra).
The Grounds of Appeal
There are five separate grounds of appeal, although they overlap to some extent. I trust I do no disservice to the grounds by observing that they seem to embody the proposition that the Judge at first instance erred in four significant respects; namely:
(a)In erroneously characterising the prosecution case against Braysich and, in particular, failing to appreciate the consequences of the allegation of common enterprise;
(b)finding that the evidence admissible against Braysich is much less than the evidence admissible against Scook;
(c)finding that the prejudice to be suffered by Braysich by reason of the differential admissibility of evidence could not be overcome by appropriate judicial direction to the jury; and
(d)taking into account personal and financial considerations pertaining to Braysich.
The Legislation
Section 133 of the Criminal Procedure Act 2004 is in the following terms:
"133.Separate trials, court may order
(1)The powers in this section may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.
(2)A court may amend or cancel an order made under this section.
(3)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -
(a)that the accused be tried separately on one or more of the charges; and
(b)the prosecutor to tell the court the order in which the charges will be tried.
(4)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
(5)In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
(6)... "
It is clear from the express terms of subs (4) of the section that the Court's jurisdiction to order a separate trial depends upon the Court first being satisfied that an accused is likely to be prejudiced in the event of a joint trial. All members of this Court so held in Bowen (supra), although, as I have observed, they differed in respect of the range of matters that might be taken into account in the exercise of the discretion created by the establishment of jurisdiction, namely; by the establishment of a likelihood of prejudice.
In the present case, as I have observed, all assertions of prejudice to Braysich depend critically upon the proposition that, in the course of a joint trial, evidence admissible only against Scook would be much greater in scope and duration than the evidence admissible against Braysich and Scook. It is therefore appropriate to commence by evaluating that proposition by reference to the decided cases on the subject.
Tripodi
In Tripodi v The Queen (1961) 104 CLR 1, the appellant had been convicted on two counts of car stealing. The case for the prosecution was that the first car had been stolen by certain men acting in concert, of whom the appellant was one, and that after stealing the car, they had enlisted the aid of another, Tayler, to sell it for them. To assist him in that endeavour, they provided him with registration papers relating to a 1953 model vehicle, but the car they had stolen was a 1955 model. After Tayler pointed out the difficulty to them, it was alleged that the appellant and others looked for a 1953 model, which they then stole and later changed the engine and registration sticker and numberplates.
Tayler pleaded guilty and gave evidence for the prosecution of his discussions with the participants in the enterprise.
On appeal, complaint was made of the admission of evidence of what was done and said about the cars in the absence of the appellant. It was contended that because the appellant had not been charged with conspiracy, the special rule pertaining to conspiracy was not applicable to his case and the evidence was inadmissible. In dealing with that submission, Dixon CJ, Fullagar and Windeyer JJ observed (at 6 ‑ 8):
"It is a mistake to think that the rule the chief application of which is in charges of conspiracy is a special rule of evidence confined to that offence. But at the same time it may well lead to error if the question of the admissibility of such evidence in any given case is treated exactly in the same manner as it might be on a charge of conspiracy. For upon a charge of conspiracy the proof of the crime may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment. When that is so evidence may readily be let in of what each party to the conspiracy alleged may do or say in furtherance of the common purpose. But when a substantive crime, not a conspiracy, is charged in the indictment it is the ingredients of the substantive crime that must be proved, not combination for a common purpose. When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course unless some other ground for admitting the evidence exists in the given case ... It must be remembered the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others ... Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts ... preconcert confederacy or combination may make such directions and the like admissible when they are given by one of several acting in preconcert with the prisoner and are given in furtherance of the common design. In the present case the things said and done when the prisoner was not present or within earshot are for the most part of this character and are admissible as part of what was done in furtherance of the common criminal purpose."
Ahern
Although Ahern v The Queen (1988) 165 CLR 87 was, of course, a conspiracy case, the decision in Tripodi (supra), and in particular that portion of the decision which I have set out in which a general principle extending beyond conspiracy is enunciated, was accepted and followed by the Court (at 95).
Bilick
In R v Bilick & Starke (1984) 36 SASR 321, two persons were jointly charged with others with trading in heroin. The prosecution case was to the effect that the accused Bilick had commenced trading in heroin in collaboration with two women. It was asserted that Starke joined that criminal enterprise. King CJ held:
"There were therefore two major steps in the process of reasoning by which the prosecution sought to prove the case against Starke; the first was the proof that Bilick was engaged in trading and the second was the evidence of Starke's association and the collaboration with him. All evidence which tended to prove that Bilick was engaged in trading was therefore admissible against Starke as well as against Bilick, unless its admission would infringe a particular rule of exclusion. The evidence of Karen James and of another witness Koning, as well as the evidence of the articles found in the motel room and grounds and in Bilick's car, was therefore admissible either as indicative of the character of the enterprise to which Starke adhered, or as evidence of things done or used in furtherance of the joint enterprise."
Davidovic
Although R v Davidovic (1990) 51 A Crim R 197 was a conspiracy case, the Full Federal Court accepted that the principle justifying admission of acts undertaken pursuant to preconcert was of broader application than cases of conspiracy, relying upon Tripodi (supra).
Dinh
This line of authority was followed by the Court of Criminal Appeal of New South Wales in the context of an appeal from a refusal by a trial Judge to order separate trials in R v Dinh (2000) 120 A Crim R 42. In that case, it was the prosecution case that one of the co‑accused had organised the assassination of Mr John Newman, a member of the New South Wales Parliament. The prosecution alleged that Dinh had fired the shots which killed Newman and that a third co‑accused had driven the vehicle which conveyed Dinh to Newman's house. One of the issues which arose in the context of the appeal from the refusal to order separate trials, was the admissibility of acts and declarations of those said to have been participants in a common criminal enterprise prior to the point in time at which Dinh could be shown to have joined it. Simpson and Howie JJ (with whom Fitzgerald JA agreed) held (at 51):
"Tran's evidence was enough to show Dinh's adherence to the joint enterprise which was operating on 5 September and had been operating since March or April of that year. If Tran's evidence is accepted, then before the shooting Dinh must have known of the existence of the joint enterprise to kill Newman which involved at least Ngo and Dao. The evidence of things done and said by persons engaged in the enterprise before Dinh joined it would, in our view, be admissible to show the nature of the enterprise in which he became involved."
Clark
In Clark & Forge v The Queen [2004] WASCA 217; (2004) 50 ACSR 592, the prosecution case against each of the appellants was to the effect that they had each belatedly, and at different times, become participants in a common and unlawful enterprise to obtain control of a company and use its cash resources for an ulterior purpose. In the case of the appellant Clark, it was not alleged that he had joined the common enterprise until the very last point in its execution; namely, at the point of a board resolution which was said to have been passed in furtherance of an enterprise which had been prosecuted by others for some months prior to the board meeting. On appeal, it was unanimously held by the Court of Criminal Appeal that evidence of statements made and acts undertaken in furtherance of the alleged common enterprise which occurred long before either appellant was said to have joined that enterprise was, nevertheless, admissible against each appellant on the basis that there was reasonable evidence to the effect that they had later adhered to that enterprise.
Burroughs
In Commonwealth Director of Public Prosecutions v Daniel Wilkie & Ors (Separate trial application of Stephen Burroughs), unreported; SCt of NSW (Latham J) 11540/05; 20 May 2005; three officers of FAI General Insurance Co Ltd were charged with offences alleging deceptive conduct in their respective capacities as officers contrary to s 232 of the Corporations Act 2001. The prosecution case against each was based on an alleged joint criminal enterprise to cause FAI to enter into a reinsurance arrangement with General & Cologne Reinsurance Australasia Ltd (GCRA) that would preclude FAI from having to properly account for significant failure to make adequate provision in its accounts for liabilities arising from insurance policies it had written. Burroughs made an application for a separate trial. In the course of dismissing that application, Latham J observed (at [53] ‑ [54]):
"[G]iven that the Crown case alleges a joint criminal enterprise, there may be bodies of evidence admissible to prove the existence and scope of the enterprise, but not necessarily the participation of an accused in it.
In other words, evidence of the acts and declarations by Mainprize and/or Wilkie may be admissible to prove the nature of the enterprise, albeit not the applicant's participation in it. Such would be the position whether or not the applicant had, on the Crown case, joined the enterprise at the time of those acts and declarations by the co‑accused (see R v Dinh [2000] NSWCCA 536)."
Accordingly, Latham J held that evidence of the entire negotiations leading to the writing of the reinsurance policy was admissible against each of the accused to prove the joint enterprise, whether or not it was also admissible to prove their participation in it - relying upon, inter alia, Clark & Forge v The Queen (supra). Latham J held that it followed that an almost identical body of evidence would be presented against each accused and that, even if separate trials were to be held, it was difficult to envisage any significant savings in cost or inconvenience to witnesses, or any difference in terms of prejudice to any accused, given that the evidence adduced would be almost identical to that adduced in a joint trial.
In Burroughs, the applicant for a separate trial pressed an argument to the effect that if he were separately tried, he would make admissions which would materially shorten the trial against him. The respondent in this case pressed a similar submission before us. The difficulty with such a submission is apparent from the following passage in the judgment of Latham J (at [59]):
"The difficulty with this contention is that it assumes the consent of the Crown to that course. The Crown does not consent to the conduct of a separate trial in that fashion. There is no power in the court to compel the Crown to accede to such a proposal. The Crown is entitled to conduct its case as it sees fit, subject to the rulings of the trial Judge. Not surprisingly, given the unfamiliarity which a jury is likely to have with the world of reinsurance and complex accounting procedures, the Crown wishes to present its case through the witnesses who are in a position to explain the terminology used liberally throughout their statements. The Crown is not obliged to adopt a minimalist approach, even though it may reduce the costs of trial to an accused."
The Principles Applied to This Case
Turning then to apply these principles to the circumstances of the present case, the first point which must be noted is that, of course, a determinative ruling on the admissibility of the evidence adduced to establish the nature of the enterprise, which Braysich is said to have joined on 2 February 1998, must await the trial. It will be for the trial Judge to rule on the question of whether there is reasonable evidence of the adherence of Braysich to the enterprise commenced by Scook and if the ruling is favourable to the prosecution on that point, the evidence will be admitted and it will ultimately be a question for the jury as to whether they are satisfied beyond reasonable doubt to the effect that he did so. Nothing said by this Court on this appeal could or would determine the question of admissibility.
However, when an application is made pursuant to s 133 of the Criminal Procedure Act 2004 in order to determine whether there is power to order a separate trial under that section, the Court must first determine whether it is satisfied that an accused is likely to be prejudiced if a joint trial is held. Where the allegation of prejudice depends upon an assessment of the admissibility of evidence at trial, a Court considering such an application must therefore form its own view of the likely admissibility of the contentious evidence at trial, acknowledging that, of course, any determinative ruling on admissibility must await the trial.
We have received the prosecution brief and been given the opportunity to review the depositions given by the witnesses who are to be called at trial by the prosecution. We were taken to some of those statements it the course of argument. On the assumption that evidence to the effect disclosed in those statements is adduced by the prosecution at trial, in my view, it would provide a reasonable evidentiary basis for an assertion by the prosecution that Braysich had joined an unlawful enterprise initiated by another (Scook) which thereafter became an enterprise which they carried on in common. If the evidence adduced by the prosecution at trial does provide a reasonable basis for that contention, the application of the line of authority to which I have referred will produce the consequence that all of the evidence disclosed in the prosecution brief will be admissible against Braysich, including the evidence of acts, declarations and transactions undertaken by Scook before Braysich had any involvement in the enterprise.
It follows that on the basis of the material presently before the Court, in my opinion, it cannot be said that there is a likelihood of prejudice to Braysich in the event of a joint trial. That is because it cannot be said that there is a likelihood that the evidence admissible against him will be any different in scope from the evidence admissible against Scook. The ordering of separate trials would therefore make no difference whatever to the evidence to be adduced at such a trial and it could not be concluded that a joint trial is likely to cause prejudice to Braysich. In my opinion, it follows that the Judge at first instance erred in finding a likelihood of prejudice arising from a joint trial. In my view, such a finding was not open on the materials before him because those materials did not establish a likelihood that the evidence admissible against Braysich would be different in any material respect from the evidence admissible against Scook.
Therefore the Judge at first instance should have held that he lacked jurisdiction to make the order sought. On this view of the case, no question arises with respect to the exercise of the discretion to make an order for a separate trial and accordingly no occasion arises for the application of the well established principle that the exercise of a discretion about whether or not to order separate trials should not be lightly interfered with by an appellate court (see Bowen (supra) at [23]). It further follows that the outcome of the appeal is, on this view, unaffected by the decision in Bowen as to the ambit of matters properly taken into account if and when the powers conferred by the section fall to be exercised.
This view of the case also obviates the need to address the question of whether a likelihood of prejudice could, in this case, have been guarded against by a direction to the jury. That question only arises under s 133(5) after there has been a determination under s 133(4) to the effect that absent a direction there would be likelihood of prejudice. For the reasons I have given, I am of the view there could be no such determination in this case.
However, if in this case it had been necessary to address that question, because it was concluded that it was likely that a substantial amount of evidence to be adduced at a joint trial would be inadmissible against Braysich before any meaningful determination could be made on the question of whether the likelihood of prejudice to the accused could be guarded against by a direction to the jury, it would, I think, be necessary to undertake a detailed evaluation of the respective bodies of evidence. For example, while this Court was not encouraged by either party to undertake that detailed evaluation, from my review of the evidentiary materials, I have the distinct impression that the evidence to be adduced at trial of the acts and transactions undertaken by Scook, prior to the alleged involvement of Braysich, could be quite readily segregated and distinguished from the evidence pertaining to the transactions in which Braysich was involved, in an appropriate direction to the jury. However, it seems to me that when an issue of that kind does arise, it is not to be resolved at the level of general impression, but rather by a detailed analysis of the established source of prejudice (such as the differentially
admissible evidence) and then an evaluation of the extent to which that prejudice "can be guarded against by a direction to the jury".
In my opinion, the appeal should be allowed and the direction made by the Judge at first instance quashed.
The orders I propose to make are:
1.That the appeal be allowed.
2.That the order of Williams DCJ made on 2 September 2005 that the respondent and his co‑accused, Dean George Scook, be tried separately be quashed.
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of the Chief Justice. I agree with those reasons and have nothing to add.
ROBERTS-SMITH JA: I too agree with the Chief Justice.
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