R v Cunningham; R v Moarefi

[2020] ACTSC 24

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 18 April 2019, Mr Cunningham possessed a prohibited firearm without authorisation (Count 6).

2. Mr Moarefi seeks:

(a)	a separate trial in respect of Counts 3 and 4; or
(b)	that the indictment be severed with respect to Counts 5 and 6.

3.	Prior to the hearing of this matter, Mr Cunningham had also sought to sever Count 5 of
the indictment. The Crown consented to this position. However, Mr Moarefi’s
application remains opposed.

Alleged facts

4. In short summary, the Crown Case Statement outlines the alleged facts as follows. On 2 March 2019, Mr Cunningham spoke to the complainant on the phone and both threatened violence against each other. Mr Cunningham then contacted Mr Moarefi and shortly after, the latter arrived in car and Mr Cunningham removed a rifle from the car. It is alleged Mr Moarefi also had a handgun. Soon after, the complainant and a number of other individuals arrived on foot and there was a verbal argument. As that group began to leave, it is alleged Mr Cunningham discharged the firearm a number of times towards the complainant, one bullet hitting him in the thigh.

Legislation

5. The applications are made pursuant to s 264(2) of the Crimes Act 1900 (ACT) which
provides as follows:

264 Orders for amendment of indictment, separate trial and postponement of trial
...

(2) If, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his or her defence because of being charged with more than 1 offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for 1 or more offences charged in an indictment, the court may order a separate trial of a count or counts of the indictment.

…

6. In addition, r 4751 of the Court Procedures Rules 2006 (ACT) relevantly provides:

4751 Supreme Court criminal proceedings—application for separate trials

An accused person may apply for—

(a) separate trials of different charges alleged against the person in

the same indictment; and

(b) a separate trial from that of someone else committed for trial and charged in the

same indictment.

Note Pt 6.2 (Applications in proceedings) applies to the application.

Submissions on behalf of Mr Moarefi

7.	While accepting that the charges are put as a joint narrative, the applicant’s position is
that he would be unfairly prejudiced if the counts were to be heard alongside Mr
Cunningham’s charges. Counsel for Mr Moarefi submitted that the relevant risk of
prejudice arises from the risk that the jury will conflate the charges against Mr Moarefi with those against Mr Cunningham, not being in a position to independently consider the evidence against Mr Moarefi. It is submitted the risk of prejudice may amount to a denial of a fair trial: citing s 21 of the Human Rights Act 2004 (ACT).
8.	It was accepted, however, that the witnesses in the two proposed trials would be the
same and that there would therefore be duplication, and, that the Crown’s narrative was “a difficult narrative to separate out” (T 8.26-29). It was also conceded there would
be matters which are cross-admissible (T 8.36).
9.	Counsel for Mr Moarefi submitted that the Crown will seek to lead contextual evidence regarding an argument on 2 March 2019 between Mr Cunningham and certain witnesses about an alleged debt owed to him. It was further submitted that telephone records would be relied upon as relationship evidence between the co-offenders.
10.	With respect to the contextual evidence, it was submitted Mr Moarefi was not “verbally participating” in the argument and not connected to the alleged debt, and therefore, the
“overall narrative unfairly and prejudicially ‘captures’ Mr Moarefi” into that context.
11.
It was submitted that where relationship evidence is relied upon as cross-admissible it
would have the prejudicial effect of “over-emphasising Mr Moarefi’s alleged role”.
12.
In addition, it was submitted Mr Moarefi would be prejudiced by hearing the evidence of the remaining charges against Mr Cunningham, not being relevant to Mr Moarefi: citing Baini v The Queen [2011] VSCA 298; 33 VR 252 (Baini). In particular, it was noted that Count 6 relates to firearms which may lead the jury to conflate the charges against Mr Moarefi which also relate generally to firearms.
13.
With respect to Count 6, counsel for the applicant submitted as there was no temporal connection with the other counts and submitted (T 10.26-29):

Mr Moarefi would be prejudiced by having a charge of possession of a firearm heard when it's not said to be the firearm that Mr Moarefi is said to have been holding at the time of the

offending…it's not said to be related to any of his relevant addresses.

14. It was submitted that a separate consideration direction would not be sufficient to cure the prejudice. While it was conceded that the Court has the power to order joint trials where convenience far outweighs the risk of prejudice (Baini), the need for a fair trial was emphasised.

Submissions on behalf of the Crown

15. The Crown opposed the application on the following grounds:

(a)	the charges against the applicant and Mr Cunningham arise from a single narrative and, to a large extent are related;
(b)	some of the evidence identified by the applicant as irrelevant and prejudicial is,

in the Crown’s submission, directly relevant and admissible in the case against

the applicant;

(c)	to the extent that any prejudice arises from evidence that is not directly relevant to the applicant, it is minimal and can be dealt with by appropriate jury directions;
(d)	some prejudice to one or other accused is inevitable in a joint trial and separate trials should not be granted merely because admissible evidence against one accused is inadmissible and prejudicial to another accused: citing R v Dellapatrona and Duffield (1993) 31 NSWLR 123 (Dellapatrona); R v AI, AD and JR [2013] ACTCA 16 (AI); Gibb and McKenzie v The Queen (1982) 7 A Crim R 385 (Gibb); and
(e)	interest of justice considerations, including convenience to witnesses and the Court, fairness to the prosecution, the avoidance of inconsistent verdicts, and

ensuring finality is reached as expeditiously as possible, “strongly favour”

joinder.

16.	The Crown relied upon authority for the proposition that where two or more accused
are charged with offences arising out of a “common factual matrix”, the public interest
is best severed by a joint trial: R v Assim [1966] 2 QB 249; 2 All ER 881 (Assim); R v Fernando [1999] NSWCCA 66 (Fernando); R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90 (Featherstone (No 2)); R v Demirok [1976] VR 244 (Demirok).
17.	With respect to the applicant’s submissions on prejudice, the Crown rejected the position that the ‘contextual evidence’ and the evidence regarding Count 6, is irrelevant

to the case of the applicant. It was submitted however that inadmissibility of certain evidence against one accused is, by itself, an insufficient reason for a separate trial: AI at [24]; Gibb at 393; Dellapatrona at 133C-134D.

18.	With respect to the submission relating specifically to Counts 3 and 4, the Crown accepted that the alleged debt dispute does not involve the applicant, however, submitted it is nevertheless part of the narrative in the case against the applicant. It is
alleged by the Crown that the “heated conversation” led to Mr Cunningham calling the
applicant, who later arrived with the weapon used by Mr Cunningham. Thus, the debt
dispute is said to provide “background information to explain why Mr Cunningham
called the applicant and why the applicant brought firearms with him”.
19.	The Crown emphasised its obligation to prove the intention elements of the offences against the applicant, which it submits is assisted by evidence as to the reason the firearm was brought. The Crown submitted that a separate trial would require the jury
to “consider the case in a completely artificial context and would be unfair to the Crown”.
20.	With respect to the submission relating specifically to Count 6, the Crown submitted that the firearm is the one used in the shooting covered by Counts 1 to 4 and is therefore directly relevant to the case against the applicant. Where all facts are in dispute, the Crown submitted that the evidence relating to the firearm places the gun at the scene, indicates Mr Cunningham as the shooter and relates to witnesses at the scene who
describe the weapon and its retrieval from the applicant’s car. In the Crown’s submission the matter is “inextricably linked” to the offending alleged against the
applicant (T 13.23).
21.	It was submitted that the alleged prejudice can be distinguished from Baini (where there was irrelevant evidence of 47 other counts) and KRM v The Queen [2001] HCA 11; 206 CLR 221 (where there was one offence of maintaining a sexual relationship and 17 specific sexual offences, those not being in the alternative).
22.	The Crown submitted that, to the extent that the evidence is prejudicial, it is able to be
cured by a jury direction on evidence which, in the Crown’s submission, is “well-defined an uncomplicated”.
23.	Finally, the Crown submitted that considerations of the interests of justice are not confined to the accused: Ross v The Queen [2012] NSWCCA 207 at [24] (Ross); R v Mack [2009] ACTSC 83; 4 ACTLR 55 (Mack). In this context it was noted that in separate trials, certain evidence, including witness testimony would be duplicated and the Crown and court would have to make provision for extra resources.

Consideration

24. The principles to be applied are usefully and comprehensively set out by Nettle AJA (as his Honour then was) in R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 at [12] (Henry):

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]).

The starting point is that where offences are related, the interests of justice are best served by a joint trial. In Assim (quoted with approval in Fernando at [199]), it was stated:

Where, however, the matters which constitute the individual offences of the several offenders are, upon the available evidence, so related whether in time or other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases.

Demirok at 254 underlines that the public interest must be considered. The public interest includes court time, public expense, questions of inconsistent verdicts, dealing with cases expeditiously and the convenience of witnesses. The decision in Demirok was quoted with approval by the Court of Appeal in AI at [22]. See also: Featherstone

(No 2).

The applicant for severance of the indictment bears the burden of establishing that there is a need for a separate trial: The Queen v CHS [2006] VSCA 19; 159 A Crim R 560 at [73]. That burden has not been met in this case for the following reasons:

(a)	The counts on the indictment concerning the applicant and Mr Cunningham arise from a connected set of circumstances. It is a common factual narrative. A separate trial would be artificial in this context. The allegations are inextricably linked;
(b)	No positive injustice has been identified by counsel (T 10.38): see Henry; R v Bikic [2000] NSWSC 223; 112 A Crim R 163; R v Patsalis and Spathis [1999] NSWSC 649; 107 A Crim R 432; R v Middis (Unreported, Supreme Court of New South Wales, Hunt J, 27 March 1991). Rather, the application relies on

possible conflation, that is: “Mr Moarefi would be prejudiced because a jury need

only look at the matters in relation to Mr Cunningham and then conflate those

matters with what is alleged against Mr Moarefi” (T 8.40-42) and “that there is

this risk of the jury impermissibly conflating matters that relate to Mr

Cunningham primarily and not to Moarefi” (T 9.35). In this case there is no real

risk of positive injustice as a consequence of a joint trial: see Henry; R v Apps [2019] ACTSC 249;
(c)	Insofar as the question may arise of prejudice by way of “conflation”, as

submitted by counsel for the applicant, it can be dealt with by way of an appropriate legal direction: see Dellapatrona; Gibb; AI. A jury would receive directions which would cure any potential prejudice. As was stated in Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11 at [125]:

Modern life is confronting. Juries are robust. There is no good reason to think

that jurors would be so scandalised by the allegations … that they would be

incapable of dispassionately determining the charges...

(d) The interests of justice clearly favour joinder: see Assim, Fernando, Demirok;

Featherstone (No 2); Ross; Mack.

Orders

The Court makes the following orders:

(a)	Count 5 (CC2019/6354), unauthorised possession of a prohibited dangerous substance, on the indictment dated 7 November 2019 is severed;
(b)	The charge CC2019/6354 is to be listed for directions before the Registrar on 27 February 2020;
(c)	Mr Cunningham is remanded on the charge CC2019/6354;
(d)	The severance application of Mr Moarefi is otherwise refused.

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson J

Associate:

Date: 13 February 2020