SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Cunningham; R v Moarefi |
| Citation: | [2020] ACTSC 24 |
| Hearing Date: | 29 January 2020 |
| Decision Date: | 13 February 2020 |
| Before: | Loukas-Karlsson J |
| Decision: | See [28] |
Catchwords: | CRIMINAL LAW – PROCEDURE – application for separate trial for two co-accused – connection between counts on the indictment – where one count severed by consent - whether |
| accused would suffer prejudice from a joint trial with respect to remaining counts | |
| Legislation Cited: | Court Procedures Rules 2006 (ACT) r 4751 Crimes Act 1900 (ACT) s 264 |
| Human Rights Act 2004 (ACT) s 21 | |
| Cases Cited: | Baini v The Queen [2011] VSCA 298; 33 VR 252 Gibb and McKenzie v The Queen (1982) 7 A Crim R 385 Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11 KRM v The Queen [2001] HCA 11; 206 CLR 221 R v AI, AD and JR [2013] ACTCA 16 R v Apps [2019] ACTSC 249 R v Assim [1966] 2 QB 249; 2 All ER 881 R v Bikic [2000] NSWSC 223; 112 A Crim R 163 R v Dellapatrona and Duffield (1993) 31 NSWLR 123 R v Demirok [1976] VR 244 R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90 R v Fernando [1999] NSWCCA 66 R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 R v Mack [2009] ACTSC 83; 4 ACTLR 55 R v Middis (Unreported, Supreme Court of New South Wales, Hunt J, 27 March 1991) R v Patsalis and Spathis [1999] NSWSC 649; 107 A Crim R 432 Ross v The Queen [2012] NSWCCA 207 The Queen v CHS [2006] VSCA 19; 159 A Crim R 560 |
| Parties: | The Queen (Crown) |
| Christopher Cunningham (Accused) Benjamin Moarefi (Accused) | |
| Representation: | Counsel |
| K Lee (Crown) R Davies (Accused - Cunningham) | |
| A Haban-Beer (Accused - Moarefi) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused - Cunningham) | |
| Boxall Legal (Accused - Moarefi) | |
| File Numbers: | SCC 214 of 2019; SCC 215 of 2019; SCC 270 of 2019 |
| LOUKAS-KARLSSON J | |
| Introduction |
| 1. | This matter is an application from Benjamin Moarefi (the applicant) in respect of an indictment dated 7 November 2019 charging him, and his co-accused Christopher Cunningham with a number of offences. The charges on that indictment are, in general terms, as follows: |
(a) On 2 March 2019, Mr Cunningham intentionally inflicted grievous bodily harm on Graham O’Neill (Count 1);
(b) In the alternative to Count 1, on 2 March 2019, Mr Cunningham discharged a firearm at Mr O’Neil so as to cause reasonable apprehension for his safety
(Count 2);
(c)
On 2 March 2019, Mr Moarefi aided and abetted Mr Cunningham with respect to Count 1 (Count 3);
(d)
In the alternative to Count 3, on 2 March 2019, Mr Moarefi aided and abetted Mr Cunningham with respect to Count 2 (Count 4);
(e)
On 8 March 2019, Mr Cunningham possessed a dangerous substance without authorisation (Count 5); and
(f)
On…
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- R v Cunningham; R v Moarefi [2020] ACTSC 24
- Case
- [2020] ACTSC 24
- Decision Date
CaseChat Overview and Summary
The Court considered the principles for determining whether a separate trial is warranted, including the policy in favour of joint trials for co-accused, the burden on the applicant to demonstrate a real risk of positive injustice, and the ability to mitigate prejudice through jury directions. The Court found that the charges against the applicants arose from a connected set of circumstances, and that there was no real risk of positive injustice as a consequence of a joint trial. The Court concluded that the interests of justice favoured a joint trial, taking into account factors such as the convenience of witnesses, the avoidance of inconsistent verdicts, and the need to deal with cases expeditiously.
The Court made orders severing Count 5 of the indictment, relating to unauthorised possession of a dangerous substance, and referred the severed charge to the Registrar for further directions. The application for a separate trial was otherwise refused. The Court emphasised that while some degree of prejudice may arise in joint trials, this did not necessarily warrant a separate trial unless the prejudice was of a kind that could not be nullified by appropriate jury directions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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