R v Damien James Catania
[2005] VSC 210
•27 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1496 of 2004
| R |
| v |
| DAMIEN JAMES CATANIA |
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RULING NO. 2
JUDGE: | Bell J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 27 May 2005 | |
CASE MAY BE CITED AS: | R v Damien James Catania | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 210 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Walmsley SC | |
| For the Defendant | Mr J McQuillan |
HIS HONOUR:
This is ruling No.2 in relation to the separate trial application made by Mr Downing and Mr Lloyd.
Where an application is made for the separation of trials of multiple co-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 reached expeditiously, which cannot be achieved through repeated trials of the same issues. 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.
In appropriate cases there will be sufficient justification for an order that the trials of co-accused persons 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 the present case. The most important of these is the one stated by Crockett J in Jones v Waghorn[1]. His Honour stated, in substance, that if there is not only substantial prejudice to an accused arising from a joint trial, but that the prejudice is of a kind not really amenable to nullification by judicial direction, then the claim for a separate trial is 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
I consider the relevant principle in the present case to be 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 cases 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. That foundation is constituted by the following three factors:
1) The three 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 stated that Mr Downing 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 in the way that he has.
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 substantial 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, I would expect the jury to consider the case against Mr Catania first. No doubt the factual setting for that consideration would be the evidence relating to the joint participation by the three co-accused in the tragic 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. That further evidence is most substantially constituted by the recordings of the telephone conversations that were the subject of my ruling No.1. It is reasonably open to the jury to conclude that that 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 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 would not have identified Mr Downing to be the principal actor. As regards Mr Downing, there are not the same fundamental admissions, there are not probative lies and there is not evidence in the nature of telephone recordings and the like. Essentially the jury will have the strong common foundation to consider. A case built upon that foundation alone is of a significantly different nature to a case built upon that foundation, taken together with other evidence of the kind that exists 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, secondly, Mr Downing is a liar, thirdly, Mr Downing was the real instigator, and fourthly, Mr Downing was involved in the events according to Mr Catania's version, and so on.
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 that 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 that 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 together.
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 to finally 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.
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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