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R v Braysich

R v Braysich

Case [2006] WASCA 220 26 October 2006

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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)…

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.

Continue reading R v Braysich

Details

AGLC: R v Braysich [2006] WASCA 220
Case: [2006] WASCA 220
Decision Date: 26 OCTOBER 2006

CaseChat Overview and Summary

The case of R v Braysich involved the respondent, who was charged with involvement in an illegal enterprise, alongside several co-accused. The nature of the dispute was the application to set aside the judge's order for the respondent and the co-accused to be tried separately. The application was heard in the Supreme Court of Victoria. The central issue before the court was whether any evidence adduced at a joint trial would create a likelihood of prejudice to the respondent. The court also needed to consider whether the evidence adduced would be almost identical whether by way of separate or joint trials.

The court held that it was necessary to consider the nature of the evidence that might be adduced in a joint trial and whether it would be almost identical to that which would be adduced in separate trials. The court found that the evidence of the co-accused would be almost identical whether by way of separate or joint trials. However, the court also found that the evidence of the respondent would be almost identical whether by way of separate or joint trials. The court held that the evidence adduced at a joint trial would create a likelihood of prejudice to the respondent. The court found that the respondent had a real and substantial chance of prejudice if tried jointly with the co-accused.

As a result of the court's findings, the application to set aside the judge's order for separate trials was successful. The court ordered that the respondent and the co-accused be tried separately. The court also made orders for the preservation of the evidence that was to be adduced at the trials, and for the protection of the respondent's right to a fair trial. The final orders of the court were that the respondent and the co-accused be tried separately, and that the evidence be preserved and protected as necessary.

Orders