R v Catania
[2005] VSC 397
•27 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1496 of 2004
| THE QUEEN |
| v |
| DAMIEN JAMES CATANIA, ROBERT DOWNING & JASON CRAIG LLOYD |
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JUDGE: | Bell J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 26-27 May 2005 | |
DATE OF RULING: | 27 May 2005 | |
CASE MAY BE CITED AS: | R v Damien James Catania & Ors | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 397 | |
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Crime – Ruling – Application for separate trial – Multiple accused – Prejudicial evidence - Swamping of defence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Walmsley S.C. | Office of Public Prosecutions |
| For the accused Catania | Mr J McQuillan | Haines & Polites |
| For the accused Downing | Dr G J Lyon | Rob Melasecca |
| For the accused Lloyd | Mr W E Stuart | Slades & Parsons |
HIS HONOUR:
In a trial of three co-accused, Damien Catania, Robert Downing and Jason Lloyd, counsel for Mr Downing and Mr Lloyd have applied for a trial separate from the trial of Mr Catania.
Where an application is made for the separation of trials of multiple accused, the starting point for the exercise of the judicial discretion is that there should be a joint trial.
Compelling public interest considerations require this starting point to be adopted. The time spent in and the cost of running more than one trial is far greater. It is against the interests of justice for there to be inconsistent verdicts. Finality should be achieved as expeditiously as possible and repeated trials of the same issues can be far from expeditious. The convenience of witnesses is an important consideration. Finally, the jury should ideally have the explanation, if any, of all of the persons alleged to have been engaged in joint criminal activity.
Even so, in appropriate cases there will be sufficient justification for an order that the trials of co-accused be separate. Since this power is discretionary, there are no absolute rules one way or the other. However, the authorities reveal several considerations that may be relevant in a case such as the present. The most important of these is the one mentioned by Crockett J in Jones v Waghorn[1]. His Honour stated, in substance, that if substantial prejudice to an accused person will arise from a joint trial, and also the prejudice will be of a kind not really amenable to nullification by judicial direction, then the need for a separate trial will be very much stronger.
[1][1991] 55 A Crim R 159 at 164
It is sometimes suggested by reference to the decision of the High Court in R v Darby[2] that separate trials should be ordered in those cases where there is a significant difference in the evidence to be led against different co-accused. Counsel for Mr Downing in the present case, Dr Lyon, did not put his application upon this basis and I would not have granted it upon this basis. In Victoria, it is necessary for the differences in the evidence to give rise to a substantial prejudice not amenable to cure by the giving of an appropriate direction to the jury.
[2][1982] 148 CLR 668 at 678
The principle most relevant to the present case is that, where the evidence led against one co-accused, in nature or extent, is so significant that it would swamp the defence of another co-accused, in the sense that the jury could not reasonably be expected mentally to compartmentalise the evidence, even if an appropriate judicial direction were to be given, an order for separate trials can be made. This principle emerges from an analysis of the cases that have been decided on this topic, and most recently from Debs v R[3]. Clearly not every case of inconsistency of evidence would fall into this category. This brings me to an analysis of the evidence in the present cases.
[3][2005] VSCA 66 at [11] per Vincent JA
In the present case there are three co-accused charged with attempted murder and intentionally causing serious injury without lawful excuse. In forceful submissions in opposition to the separation of the trials, Senior Counsel for the prosecution, Mr Walmsley, stated that the case against the three co-accused was supported by a common strong foundation. This foundation is constituted by the following three factors:
1) The three co-accused were present when one of them set fire to the victim.
2)The three travelled together to the scene of the crime in the one vehicle from a common point of departure.
3)The three could not have been intending to set fire only to the victim's car because they kept looking for him without setting fire to the car when they could not find him at the place where the car was.
I accept that these factors constitute a common foundation in the case against the three co-accused. I consider that the jury might regard this common foundation as a strong one.
On behalf of Mr Downing, Dr Lyon submitted that, if the trials were to be joint, the jury would hear evidence admissible in the trial of Mr Catania that would not be admissible in the trial of Mr Downing. Dr Lyon described this evidence by reference to the following three categories:
1)Evidence that blackened Mr Downing's character.
2)Evidence that Mr Downing had lied to the police and Mr Downing's version of events.
3)Evidence that ascribed criminal liability to Mr Downing for the events of 25 October 2003 by giving a version of events to third parties that was, in parts, contrary to the admissible evidence against Mr Downing, and, in other parts, upon which there was no admissible evidence.
I have examined carefully the evidentiary basis for these submissions and consider that Dr Lyon has accurately described the evidence.
By its very nature, evidence of this kind will be prejudicial to Mr Downing, and substantially so. The question that arises is whether, having regard to the strong common foundation and the prejudicial inadmissible evidence, a jury could reasonably be expected to apply a judicial direction, in relation to their consideration of Mr Downing’s criminal liability, to have regard only to the common foundation and not to the inadmissible evidence.
Since Mr Catania will be identified by the victim as the person who set him alight, in a joint trial of the three co-accused I would expect the jury to consider the case against Mr Catania first. No doubt the factual setting for this consideration would be the evidence relating to the alleged joint participation by the three co-accused in the terrible events that happened. Nonetheless, an initial focus upon Mr Catania's evidence seems to be inevitable.
When examining the evidence against Mr Catania the jury will consider the evidence said to constitute the strong common foundation, and also a significant body of further evidence admissible against Mr Catania. This further evidence is most substantially constituted by the recordings of the telephone conversations that were the subject of an earlier ruling. It would be reasonably open to the jury to conclude that this further evidence shows Mr Catania to be a liar, to have made certain admissions, to possess a consciousness of guilt and to have been prepared to interfere with witnesses and co-accused to avoid conviction.
Having regard to the nature of this evidence, I think it unlikely that the jury will determine Mr Catania's criminal liability by reference to the strong common foundation alone. It is most likely that they will determine his liability upon a consideration of the totality of the evidence.
When the jury comes to consider the evidence against Mr Downing they will be confronted with a very different situation. The victim will not have identified Mr Downing to be the principal actor. As regards Mr Downing, there will not be the same fundamental admissions, there will not be probative lies and there will not be evidence in the nature of telephone recordings and the like admissible against him. Essentially the jury will have the strong common foundation to consider. A case built upon this foundation alone is of a significantly different nature to a case built upon this foundation taken together with other evidence of the kind admissible against Mr Catania.
When considering this case of a significantly different nature against Mr Downing, the jury will be required to keep out of its mind Mr Catania's statements to the effect that, and I summarise, first, Mr Downing is a person of bad character, second, Mr Downing is a liar, third, Mr Downing was the real instigator, and fourth, Mr Downing was personally involved in the events that happened.
In the circumstances of the present case I consider it unreasonable to expect a jury to apply a direction to approach Mr Downing's criminal liability in this way. There is a significant risk that the evidence led against Mr Catania will swamp Mr Downing's defence, even though this evidence is inadmissible against him.
Mr Walmsley pointed out that the application by Mr Downing and Mr Lloyd was that they both should be tried together, but separately from Mr Catania. Yet the first conversation in the telephone recordings evidence, which will be admissible against Mr Lloyd in any separate trial, contains material prejudicial to Mr Downing. There is substance in this argument, but this is only one of many telephone conversations. Even if this conversation were to be admitted into evidence against Mr Lloyd in a joint trial of Mr Downing and Mr Lloyd, the issues that might arise do not equate with the issues that would arise from the admission of the totality of the telephone recordings that I have found to be admissible in evidence against Mr Catania in a joint trial of the three co-accused.
A number of other considerations were referred to in argument telling for and against separation, as the case may be, which I do not need finally to determine.
Counsel for Mr Lloyd, Mr Stuart, adopted the submissions made on behalf of Mr Downing by Dr Lyon and put forward some further bases for separation on behalf of Mr Lloyd. I am of the view that Mr Downing should be tried separately from Mr Catania. It would be wrong to try Mr Lloyd with Mr Catania without Mr Downing. If there is to be a separate trial for Mr Downing, Mr Lloyd should be tried with Mr Downing not Mr Catania.
For these reasons I order that Mr Downing and Mr Lloyd be tried together but separately from Mr Catania, who should be tried alone.
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