R v El-Chakik (Ruling No 1)

[2014] VSC 506

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CI 2014 0028

THE QUEEN

v

IHSAN EL-CHAKIK

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JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2014
DATE OF RULING:	6 October 2014
DATE OF REASONS:	10 October 2014
CASE MAY BE CITED AS:	R v El-Chakik (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2014] VSC 506

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CRIMINAL LAW – Severance – Application for theft charge to be severed from reckless endangerment charges – Unfair prejudice – Application granted - Section 193 of the Criminal Procedure Act 2009 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Chadwick QC	Office of Public Prosecutions
For the Accused	Mr D Hallowes	Turnbull Lawyers

HIS HONOUR:

1. On the 6^th October 2014, I ordered that Charge 1 be severed from Indictment No C1309390.2.  I indicated that I would give my reasons later and I do so now.

1. The accused in this case, Ihsan El-Chakik, applied for severance of Charge 1 from an indictment containing a total of five charges.  Charge 1 was a charge of theft of a motor vehicle.  Charges 2 to 5 were all charges of reckless conduct endangering life.

1. In brief, the prosecution case is that on 19 August 2013 in Hillside, the accused was driving a stolen Holden ute in which there was a passenger, a Mustafa Zogheib, who was in possession of a handgun.  The accused was driving the stolen ute in pursuit of another vehicle, a Jeep Patriot, in which there were two occupants, the driver, Taylor Horley, and his passenger, Antonia Kourkoulis.  During the pursuit, it is alleged that Mr Zogheib fired on the Jeep Patriot several times (Charges 2 and 3) and that the accused drove the Holden ute at high speed, erratically and dangerously close to the Jeep Patriot (Charges 4 and 5).

1. There was no issue about the propriety of the joinder of the theft charge with the charges of reckless conduct endangering life. There is a factual nexus constituted by the use of the stolen Holden ute in the pursuit. It is conceded by the accused that the offences are related offences because they are ‘founded on the same facts’, in accordance with the definition of related offences in s 3 of the Criminal Procedure Act 2009 ( ‘CPA’).

1. The basis of the application for severance under s 193 of the CPA was the risk of unfair prejudice from the joint trial of the theft charge and the charges of reckless conduct endangering life. It was submitted that if the jury heard evidence of dishonesty in relation to the theft charge, that may compromise them in relation to an assessment of the accused’s defence on the charges of reckless conduct endangering life. His defence to those charges is, firstly, that he was not a party to a joint criminal enterprise involving the use of the gun by Zogheib and, secondly, that he did not drive at the speed or in the manner alleged by the Prosecution. It was further submitted that if the jury accepted that he was criminally responsible for the discharge of the gun, the seriousness of that behaviour may compromise them in assessing whether he was driving a stolen vehicle, knowing it was stolen. It was submitted by the accused that the risk of unfair prejudice could not be cured by directions.

1. The prosecutor, Mr Chadwick QC, very fairly conceded that there is a risk of prejudice from the joint trial of the charges and acknowledged that the level of criminality alleged in Charges 2 and 3 ‘swamps’ the criminality alleged in Charge 1.  He submitted, however, that the risk is manageable if the jury is directed to give separate consideration to each charge and not engage in impermissible tendency reasoning.

1. In relation to the trial of the theft charge, it is my view that, whilst juries normally follow directions, there is a real risk that if they accept that the accused was a party to the discharge of the gun, they may not be as rigorous as they should be in applying the criminal standard of proof to their consideration of the theft charge and the issue of whether the accused knew the Holden ute was stolen.  The gravity of the conduct described in Charges 2 and 3 may well lead the jury to reason impermissibly that the accused is the kind of person who is likely to have committed the theft charge, even though charges of reckless conduct endangering life are very different in nature to a dishonesty charge of theft.

1. It was conceded by the prosecutor that if an order for severance was made that only three police officers and possibly one civilian witness, Francesco Anthony La Rosa, would need to give evidence twice.  It was also conceded that there will not be a trial in the Supreme Court of the charge of theft of a motor vehicle.  It is recognised by all concerned that it would not be an efficient use of judicial resources for a trial of a charge of theft of motor vehicle to be the subject of a separate trial in the Supreme Court.  The accused indicated that he would consent, pursuant to s 168(1)(a) of the CPA, to the charge of theft being determined summarily in the Magistrates’ Court.  Pursuant to s 168(1)(b) of the CPA, I had regard to the matters set out in s 29(2) of the CPA and considered it appropriate for the theft charge to be remitted and heard summarily.

1. In summary, having regard to the risk of unfair prejudice associated with a joint trial of the charges, and the fact that severance would not result in a separate Supreme Court trial on the theft charge, the balancing exercise called for in relation to an application such as this favoured severance of the theft charge.

1. Accordingly, I ordered that Charge 1 was to be severed from the Indictment.