R v Cunningham; R v Moarefi (No 3) - [2020] ACTSC 268

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cunningham; R v Moarefi (No 3)
Citation:	[2020] ACTSC 268
Hearing Dates:	21 September 2020
Decision Date:	21 September 2020
Reasons Date:	9 October 2020
Before:	Burns J
Decision:	See [8]
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility of evidence –
whether contents of statements marked a significant change in
the nature of the Crown’s case shortly before the trial – whether
alleged representations by Mr Cunningham were admissible in
the case against Mr Moarefi – consideration of s 65 of the
Evidence Act 2011 (ACT)
Legislation Cited:	Evidence Act 2011 (ACT) s 65 Firearms Act 1996 (ACT)
Cases Cited:	R v Grills (1910) 11 CLR 400
Parties:	The Queen (Crown) Christopher Cunningham (Accused)
The Queen (Crown) Benjamin James Moarefi (Accused)
Representation:	Counsel
M Dyason (Crown) T Jackson (Accused)
A Haban-Beer (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) Boxall Legal (Accused)
File Numbers:	SCC 214 of 2019; SCC 215 of 2019; SCC 270 of 2019
BURNS J:

1. The accused are charged with offences said to arise from an incident on 2 March 2019 where shots were fired after a dispute between two groups on a street in suburban Canberra. They were arraigned on 21 September 2020 on an indictment containing the following five counts:

• Count 1: that on 2 March 2019 the accused Christopher Cunningham intentionally inflicted grievous bodily harm on HP;
• Count 2: in the alternative to Count 1 that on 2 March 2019 Christopher Cunningham discharged a loaded firearm at HP so as to cause another person reasonable apprehension for his safety;
• Count 3: that on 2 March 2019 the accused Benjamin Moarefi aided and abetted the commission of an offence by Christopher Cunningham namely, intentionally inflicting grievous bodily harm on HP;
• Count 4: in the alternative to Count 3 that on 2 March 2019 Benjamin Moarefi aided and abetted the commission of an offence by Christopher Cunningham namely the discharging of a loaded firearm at HP so as to cause another person reasonable apprehension for his safety; and
• Count 5: that on 18 April 2019 Christopher Cunningham possessed a prohibited firearm and was not authorised by a license, permit or otherwise by the Firearms Act 1996 (ACT) to possess that firearm.

2. The accused entered pleas of not guilty to all charges, and a jury was empanelled. Before any evidence was taken, counsel for the accused Benjamin Moarefi raised certain objections to evidence which the Crown proposed leading against him. The evidence objected to was contained within written statements only recently provided to police by MO, BZ and FM. Each of those statements allege that Christopher Cunningham made representations to the author of the statement that the Crown alleges constitutes admissions by him that he was the person who discharged the firearm which is alleged to have wounded HP. In addition, in her statement, MO alleged that on an occasion she, FM and their children…

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.

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Details

Case: [2020] ACTSC 268
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Crown prosecuted Christopher Cunningham and Benjamin Moarefi on multiple charges related to an incident on 2 March 2019, where shots were fired during a dispute in suburban Canberra. The charges included grievous bodily harm, discharging a firearm, and possession of a prohibited firearm. Both accused pleaded not guilty, and a jury was empanelled. Prior to any evidence being presented, counsel for Benjamin Moarefi objected to certain evidence proposed by the Crown, specifically statements made by other witnesses that allegedly contained admissions by Cunningham about his involvement in the incident. Moarefi's counsel argued that this evidence constituted a significant change in the Crown's case and that the alleged admissions should not be admissible against Moarefi.

The court needed to decide whether the proposed evidence marked a significant change in the nature of the Crown's case, and if the alleged admissions by Cunningham could be admitted under the Evidence Act 2011 (ACT) as evidence against Moarefi. The court addressed the first issue by concluding that the evidence did not represent a change in the Crown's case but rather supported the existing case against both accused. Regarding the admissibility of the alleged admissions under section 65 of the Evidence Act, the court ruled that while the representations were likely against Cunningham's interests at the time they were made, there was insufficient evidence to determine that they were made in circumstances that made it likely the representations were reliable. Therefore, the court found that the alleged admissions by Cunningham were not admissible in the case against Moarefi.

The court's reasoning was based on the principle that evidence must not only be relevant but also reliable, and in this instance, the circumstances under which the representations were made did not sufficiently establish their reliability. Consequently, the court determined that the proposed evidence of the alleged admissions by Cunningham was admissible in his case but not in the case against Moarefi. These reasons for judgment were not to be published to the public until the conclusion of the trial involving both accused.

Orders