Legal Research
Cases
R v Cunningham; R v Moarefi

R v Cunningham; R v Moarefi

Case [2020] ACTSC 24 13 February 2020

No judgment structure available for this case.

Type to search within this case.

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…

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 Cunningham; R v Moarefi

Details

AGLC: R v Cunningham; R v Moarefi [2020] ACTSC 24
Case: [2020] ACTSC 24
Decision Date

CaseChat Overview and Summary

The case of R v Cunningham; R v Moarefi involved an application by Benjamin Moarefi for a separate trial in respect of Counts 3 and 4 of an indictment charging him and his co-accused, Christopher Cunningham, with various offences. The key legal issues the Court was required to decide included whether the charges against the applicants arose from a single narrative, the risk of prejudice to the applicant from a joint trial, and the appropriate balance between the interests of justice and the right to a fair trial. Submissions on behalf of Moarefi argued that a joint trial would result in significant prejudice due to the potential for the jury to conflate the charges against him with those against Cunningham. The Crown, on the other hand, opposed the application, asserting that the charges were part of a connected factual matrix and that any prejudice could be managed through jury directions.

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