R v Elliott; R v Allred
[2022] ACTSC 235
•1 September 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Elliott; R v Allred |
Citation: | [2022] ACTSC 235 |
Hearing Dates: | 24 June, 25 August 2022 |
DecisionDate: | 1 September 2022 |
Before: | Kennett J |
Decision: | See [38] |
Catchwords: | CRIMINAL LAW – EVIDENCE – where offences charged by virtue of s 45A of the Criminal Code 2002 (ACT) – where Crown seeks to adduce evidence of acts done by the other accused during or in connection with the incident for the purpose of seeking to prove the existence of an agreement CRIMINAL LAW – PROCEDURE – Application for separate trial – where offences charged by virtue of s 45A of the Criminal Code 2002 (ACT) – where indictment does not specify that the two accused acted together – where Crown case concerning one accused is submitted to be much stronger than case against the other |
Legislation Cited: | Criminal Code 2002 (ACT) ss 45A, 310, 311, 312 Evidence Act 2011 (ACT) ss 57, 137, 192A |
Cases Cited: | Ahern v The Queen (1988) 165 CLR 87 King v The Queen (1986) 161 CLR 423 Tripodi v R (1961) 104 CLR 1 |
Parties: | SCC 277, 278 of 2021 The Queen ( Crown) James Gregory Elliott ( Accused) SCC 67, 68 of 2022 The Queen ( Crown) Jackson Cory Allred ( Accused) |
Representation: | Counsel T Hickey ( Crown) D Berents ( Accused Elliott) F J Purnell SC ( Accused Allred) |
| Solicitors ACT Director of Public Prosecutions ( Crown) David Healey Solicitors (Accused Elliott) Bevan & Co Lawyers ( Accused Allred) | |
File Numbers: | SCC 277 of 2021 SCC 278 of 2021 SCC 67 of 2022 SCC 68 of 2022 |
KENNETT J:
Introduction
The accused in these two proceedings (Mr Elliott and Mr Allred) are both charged with aggravated burglary, aggravated robbery and damaging property as a result of an incident that took place at a home unit in Chisholm (the unit) on the evening of 7 July 2020. The charges are presented in a single indictment (filed in both proceedings) with counts 1, 3 and 5 relating to Mr Elliott and counts 2, 4 and 6 relating to Mr Allred. Mr Elliott faces two other charges (counts 7 and 8) which do not need to be considered for present purposes.
The counts against the two accused are expressed in the same terms. The following aspects of the charges are significant.
(a)In each case the aggravated burglary count alleges that the accused, at the time of committing the offence, was “in company with another person, or had an offensive weapon with him, or both”. The back page of the indictment specifies that the Crown relies on s 311 of the Criminal Code 2002 (ACT) (Criminal Code) (which may have been intended to be a reference to s 312), “by virtue of s 45A”.
(b)In each case the aggravated robbery count alleges that the accused committed robbery and “at the time was in company with another person, or had an offensive weapon with him, or both”. The back page of the indictment specifies that reliance is placed on s 310 “by virtue of s 45A”.
(c)The property damage counts do not refer to being in company. However, the back page of the indictment again specifies that s 45A is relied on.
Section 45A of the Criminal Code provides for the extension of criminal responsibility in cases of joint commission of an offence. It provides as follows.
45AJoint Commission
(1)A person is taken to have committed an offence if—
(a)the person and at least 1 other person enter into an agreement to commit an offence; and
(b)either—
(i) an offence is committed in accordance with the agreement; or
(ii) an offence is committed in the course of carrying out the agreement.
(2) For subsection (1) (b) (i), an offence is committed in accordance with an agreement if—
(a)the conduct of 1 or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b)to the extent that a physical element of the joint offence consists of a result of conduct—the result arises from the conduct engaged in; and
(c)to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, happens in the circumstance.
(3)For subsection (1) (b) (ii), an offence is committed in the course of carrying out an agreement if a person is reckless about the commission of an offence (the joint offence) that another person in fact commits in the course of carrying out the agreement.
(4) A person commits an offence because of this section only if the person and at least 1 other party to the agreement intend that an offence will be committed under the agreement.
(5) An agreement—
(a) may consist of a non-verbal understanding; and
(b) may be entered into before, or at the same time as, the conduct making up any of the physical elements of the joint offence was engaged in.
…
(7)A person may be found guilty of an offence because of this section even if—
(a)another party to the agreement is not prosecuted or found guilty; or
(b)the person was not present when any of the conduct making up the physical elements of the joint offence was engaged in.
…
It will be noted that the three pairs of counts alleging the same offence against each accused, and relying on s 45A, do not specify that the two accused acted together. Neither accused is named, in connection with the charges against the other, as the other party to the agreement that must be proved to exist for the purposes of s 45A.
However, it appears from the Crown’s Case Statement (also a single document filed in both proceedings) and from statements made in Court that its case will be that the accused acted with each other. No case is foreshadowed to the effect that one or other of the accused acted with some other (unidentified) person. By way of summary, the Case Statement provides as follows:
1.The co-accused – James Gregory Elliott … and Jackson Cory Allred … are each charged with
· Joint commission aggravated burglary (intent to commit theft OR intent to cause harm, in company and with an offensive weapon)
o Each accused is also liable as a principal offender
· Joint commission aggravated robbery (in company and/or with an offensive weapon)
o Each accused is also liable as a principal offender
· Joint commission damage property
o Each accused is also liable as a principal offender
…
4.Around 10.00pm on 7 July 2020, accused ELLIOTT and accused ALLRED forced open the garage door to Ms Shona Johnston’s unit and entered the premises without permission. The co-accused caused damage to property in forcing entry. Whilst on the premises, the co-accused used an imitation firearm and a machete to demand items of value from Jacob Armstrong and assaulted him with the machete. They stole several items and left.
5.It is the Crown case that the co-accused attended the unit with the intention of stealing items of value from Mr Armstrong under the belief he had money, a valuable car, or drug paraphernalia. They intended to enter the unit, irrespective of whether they had permission, and by force if necessary, They intended to use weapons to threaten harm to the occupants, and Mr Armstrong in particular, in order to steal the target property or other property of value in the unit.
In very brief outline, the nature of the evidence the Crown proposes to present at the trial is as follows.
(a)There is CCTV footage from the lane behind the unit showing two men approaching just before the time of the incident and leaving soon after. The footage gives some indication of their build and what they were wearing and carrying but is not clear enough to identify either man.
(b)The people who were inside the unit at the time of the incident can give evidence of what occurred. They can give general descriptions of the men but cannot identify them.
(c)A distinctive vehicle was seen leaving the vicinity soon afterwards.
(d)About 90 minutes later Police located a vehicle, matching the description of that seen earlier, outside another dwelling in Chisholm. Both accused were inside the dwelling along with some other persons.
(e)Inside the vehicle were found a handbag which had been stolen during the incident and a machete. There will be evidence that DNA matching that of Mr Elliott was found on these items. DNA matching that of one of the victims was found on the blade of the machete.
(f)Other than DNA evidence linking Mr Elliott with physical items that are in turn linked with the incident, evidence which is said to show that Mr Elliott was one of the offenders includes:
(i)His presence at the place where the vehicle was found around 90 minutes after the incident;
(ii)His fingerprints and DNA on various parts of the vehicle;
(iii)Physical similarity with one of the men seen in the CCTV footage;
(iv)Similarity between clothing and shoes being worn by the man in the CCTV footage and items seized from Mr Elliott or found in the vehicle;
(v)Similarity between gloves found in the vehicle (on which Mr Elliott’s DNA was found) and gloves that one of the victims described being worn by one of the offenders.
(g)Evidence which is said to show that Mr Allred was one of the offenders includes:
(i)His presence at the place where the vehicle was found;
(ii)His DNA throughout the vehicle, including on driver’s surfaces;
(iii)His possession of the key to the vehicle (which he apparently attempted to conceal by clinching it between his buttocks);
(iv)Evidence that the soles of the shoes that he was wearing were consistent with marks on the door of the unit where the incident occurred;
(v)Physical similarity with the other man seen in the CCTV footage, and similarity between Mr Allred’s shoes and the shoes worn by that man;
(vi)Similarity between Mr Allred’s clothing when he was found by Police and the clothing of one of the offenders as described by one of the victims.
On 19 May 2022 Mr Allred applied for an order separating the trials of the two accused. He submitted that the evidence against Mr Elliott, which was strong but irrelevant to his case, had the potential to cause unfair prejudice. At the hearing of that application it emerged that the Crown wished to rely, as against each accused, on the evidence linking the other accused with the incident. If that course is taken, it will clearly affect quite significantly the balancing of relevant factors in the application to separate the trials. However, counsel for each of the accused indicated opposition to the Crown relying, as against his client, on evidence against the other accused. The hearing was adjourned on the basis that the evidentiary question would be resolved by the Crown applying, under s 192A of the Evidence Act 2011 (ACT), for a ruling that that evidence was admissible.
The application was filed on 7 July 2022. It seeks the following order:
That evidence of acts done by one accused, where it is open to find that the acts were done in furtherance of a common purpose, be admissible in the case against the other accused.
Because the extent to which the evidence is admissible affects (at least) the extent to which separating the trials would require witnesses to give their evidence twice, and thus may affect the outcome of the application for separation, I deal with the application under s 192A first.
Admissibility, against each accused, of evidence of things done by the other
The order sought by the Crown refers, in its terms, only to the admissibility of the evidence. However, argument proceeded on the basis that the issue was whether the evidence would be admitted, including whether it should be excluded on the ground that it would be unfairly prejudicial (Evidence Act 2011 (ACT) (Evidence Act), s 137) and I have dealt with the application on that basis.
The questions that arise, therefore, are whether the evidence is admissible and whether, if admissible, it ought to be excluded in the exercise of the power under s 137.
Admissibility
The evidence in question is framed in the Crown’s application as “evidence of acts done by one accused, where it is open to find that the acts were done in furtherance of a common purpose”. The evidence proposed to be tendered in the trial, and statements from persons proposed to be called as witnesses, was received on the application and I was taken to some parts of it. In essence, it is the evidence on which the Crown proposes to rely in attempting to prove that each of the accused was involved in the incident.
I take the expression “evidence of acts done by one accused” to include evidence adduced in an attempt to prove that that accused did an act. The case against both accused is circumstantial and that evidence is indirect: for example, evidence concerning the marks on the door of the unit and their consistency with shoes seized from Mr Allred is presented as showing a likelihood that it was he who kicked the door. The potential objection to that evidence being admitted against the other accused is relevance (Evidence Act s 56). To take the same example, evidence tending to show that Mr Allred kicked the door has no direct relevance to any question as to whether Mr Elliott was the other offender or that he did any particular act.
However, in so far as the Crown relies on s 45A, in order to establish its case against each of the accused it needs to prove the existence of an agreement between him and somebody else of the kind referred to in s 45A(1)(a). It also needs to prove that the acts that constituted the offending were done either in accordance with that agreement or in the course of carrying it out (s 45A(1)(b)).
Further, despite the form of the indictment (which does not identify the alleged co-offender in each of counts 1–6), the Crown has articulated its case on the basis that each accused is liable on the basis of joint commission with the other—not with some unspecified person. I proceed on the basis that that is how it will be opened to the jury. That is, a fact in issue in the case against each accused is that he entered into an agreement with the other accused which led to the commission of the offence.
Agreements of this kind are seldom proved by direct evidence, as the High Court pointed out in Ahern v The Queen (1988) 165 CLR 87, 93. They commonly need to be proved by inference from other facts. Speaking of the offence of conspiracy, the Court in Ahern (Mason CJ, Wilson, Deane, Dawson and Toohey JJ) said (at 93–94):
For example, it may be possible in a case of conspiracy to commit armed robbery to conclude from the fact that one accused wearing a disguise was present in a bank at the same time as another accused, similarly disguised, was waiting outside the bank in a motor vehicle with the motor running, that both were engaged in a common enterprise to rob the bank. For the purpose of reaching that conclusion it is permissible to use the acts and declarations of each, even in the absence of the other, not as proof of the truth of any assertion or implied assertion of the participation of the other, but as facts from which the combination might be inferred.
So, in the present case, if (for example) the Crown is able to prove that Mr Elliott was one of the offenders, evidence that Mr Allred also participated in the offending may tend to show that there was a prior agreement between them, bringing s 45A into play against Mr Elliott. (The benefit of that, for the Crown’s case, is that it would make Mr Elliott criminally responsible for all of the offences committed during the course of the incident, without requiring specific proof of who did what during the incident.)
Counsel for both the Crown and Mr Elliott referred to Tripodi v R (1961) 104 CLR 1 (Tripodi) at 6–7. The appellant in that case was charged with larceny of motor vehicles. There was evidence from an accomplice of an arrangement under which the accomplice was to sell a car that the appellant and another person would steal. There was also evidence from a mechanic and a painter about instructions they had been given by a group of men for the alteration of the cars, but no evidence that the appellant was present on those occasions. The passage at 6–7 to which I was referred concerned the evidence of instructions given to the mechanic and the painter. There the Court (Dixon CJ, Fullagar and Windeyer JJ) said:
It is urged that the rule under which upon charges of conspiracy evidence is admitted of what is done and said by the parties to the combination in furtherance of the conspiracy is a rule of a special nature and is incapable of application to charges of a substantive offence. In the Supreme Court the contrary view was adopted and moreover a very wide rule was laid down. It is a mistake to think that the rule the chief application of which is in charges of conspiracy is a special rule of evidence confined to that offence. But at the same time it may well lead to error if the question of the admissibility of such evidence in any given case is treated exactly in the same manner as it might be on a charge of conspiracy. For upon a charge of conspiracy the proof of the crime may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment. When that is so evidence may readily be let in of what each party to the conspiracy alleged may do or say in furtherance of the common purpose. But when a substantive crime, not a conspiracy, is charged in the indictment it is the ingredients of the substantive crime that must be proved, not combination for a common purpose. When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case. In The King and The Attorney-General of the Commonwealth v. Associated Northern Collieries (the Coal-Vend Case) Isaacs J. said of evidence of the acts of individuals done in furtherance of a preconcerted common design in cases of conspiracy what is doubly true when such evidence is tendered in proof of a charge of a substantive crime committed by several acting in preconcert : "It is an error to say that acts of one defendant, however numerous, and however pointedly in furtherance of the prohibited purpose, are necessarily admissible as overt acts of (an) offence against a co-defendant charged with conspiring with the first. They are not so admissible unless the two defendants are shown to be associated for that purpose, so as to make the purpose common to both.”.
(Citations omitted)
Two points were being made here. One is that, in seeking to prove a conspiracy, separate acts of the alleged conspirators may be relied on as a basis to infer a common design between them (a point which is sometimes referred to as the “co-conspirators rule”, but is not limited to conspiracy offences: Handlen v The Queen [2011] HCA 51, 245 CLR 282 at [4]). The other is that, in seeking to prove the commission of a substantive offence by people acting in “preconcert”, there must be evidence of preconcert before the acts or statements of one of them become admissible against the other. However, the second point does not define or explain what can constitute “reasonable evidence of preconcert”. (In Tripodi, seemingly, there was such evidence: see at 7–8.) It can only be consistent with the first point if “evidence of preconcert” can include the individual acts of the persons said to have the common design.
I therefore read the second point in Tripodi – requiring evidence of preconcert before the separate acts of another party to the joint enterprise become admissible – as going to proof of conduct constituting the offence, not to proof of a prior agreement that could make the offence one of joint commission. This understanding is consistent with the discussion in Ahern at 99. Thus, to recycle the hypothetical example in Ahern, the fact that A was present in the bank wearing a disguise is not relevant to any allegation of a substantive offence against B unless there is evidence that they had formed an agreement to rob the bank; but if B was also present, wearing a similar disguise, that may tend to prove that there was an agreement between them. To insist that evidence tending to show an agreement is admissible only if there is (other) “reasonable evidence” of the agreement would be circular.
The discussion in Tripodi thus supports the Crown’s position in the present case: that evidence tending to show the participation of one of the accused in the incident is relevant against the other, not to show that the latter was a participant, but, if he was, to show that his participation was pursuant to an agreement between the two for the purposes of s 45A. So stated, the admissibility of the evidence as against the second accused is expressly supported by s 57(1) of the Evidence Act, in that it becomes relevant if a particular finding is made. (The case is not within the province of s 57(2), because it is not one where the relevance of evidence depends on finding a common purpose; rather, it is sought to be adduced as evidence of a common purpose. Reliance on s 57(1) does seem to be necessary, however. I do not understand the Crown to go so far as to say that evidence of (for example) Mr Elliott’s presence could be enough to convict Mr Allred on the basis of joint commission without also proving that Mr Allred was present (despite s 45A(2)(a)). It is their alleged presence together that is said to furnish evidence of an agreement between them.)
What I have said above proceeds on the basis that the Crown case against the accused is one of joint commission, pursuant to s 45A, with each other. In argument, counsel for the parties made various points about the form of the indictment and its consequences. While the issue of admissibility can be resolved on the basis I have outlined above, it is appropriate to make the following observations.
Counsel for the Crown observed that the wording of counts 1 to 6 of the indictment was chosen carefully in the light of what were recognised to be potential difficulties in proving the participation of both accused in the incident. It was apprehended that, if each count specified the person with whom the offence was said to have been jointly committed, the Crown would necessarily fail to prove the offence as charged if it were not able to prove the involvement of both beyond reasonable doubt. Both would therefore be entitled to be acquitted, even if participation in the offending by one of them had been proved. That, it was submitted, would be incongruous and undesirable. Nevertheless, counsel emphasised, the case that the Crown would run at trial was one of joint commission by the two accused.
Counsel for Mr Elliott suggested that there was, implicit in the indictment as explained by counsel for the Crown, an alternative case against each accused involving joint commission with some (unidentified) person not being the other accused. This was because the Crown would still be urging the jury to convict one accused on a basis of joint liability under s 45A even if it did not manage to prove the involvement of the other accused. He submitted that the Court would direct that the Crown cannot rely on that case.
In response to this point, Counsel for the Crown insisted that there was no implicit alternative case and no occasion to make any such direction. As presently advised, I think he is correct. Because the criminal standard of proof applies, a verdict of not guilty in relation to either accused would not entail a positive finding that he was not involved or not part of an agreement for s 45A purposes. Rather, it would simply mean that the jury was not satisfied about his involvement to the degree required for a conviction. It does not result in the Crown needing to allege, in relation to the remaining accused, that he formed an agreement with a third person. Rather, the Crown case becomes that he formed an agreement with somebody and that establishing that person’s identity is not essential. Section 45A(7)(a) appears to contemplate such a position.
Counsel for Mr Allred criticised the form of the indictment as being unclear and inconsistent with what the Crown says is its case. He submitted that, according to the terms of the indictment, each accused is charged along with an unknown person. The Case Statement, which is not a pleading, is (he submitted) inconsistent with that position. If the case to be run is as explained in the Case Statement, the indictment requires amendment.
In my view it is open to the Crown to frame counts 1 to 6 in the way they are put in the indictment (which is completely unspecific as to who each accused is alleged to have acted with), and to open a more specific case in which it seeks to prove involvement with a particular person (ie, the other accused). I do not regard this as creating inconsistency. The evidence presented and the Crown’s closing address will need to be consistent with the case as opened; and if there is a material departure from the case as outlined in the Case Statement, appropriate orders can be made to ensure that unfairness does not arise.
Reference was made to King v The Queen (1986) 161 CLR 423, 433 (Dawson J (Gibbs CJ, Wilson and Brennan JJ agreeing), where it was said that an indictment charging two persons on the one count is “both joint and several”. That was by way of explanation of why, even though the applicant’s co-accused had been acquitted, there was no necessary inconsistency in him being convicted. (His conviction had been set aside on appeal as a result of a late change in the Crown case. The difference of opinion in the High Court was as to whether he could be re-tried or was entitled to be acquitted.) The observation may possibly suggest that the Crown’s apprehension as to the possible consequences of a joint indictment are unwarranted, but that need not be explored at present. The observation does not deal with the case where two persons are charged by way of separate counts.
Prejudice
Section 137 requires the rejection of evidence if its probative value is outweighed by the danger of “unfair prejudice” to the defendant. The adjective “unfair” serves to emphasise what may already be inherent in the notion of “prejudice”: ie, the potential adverse effect on the defendant must be more than simply making it more likely that he or she will be convicted (eg R v Falzon [2018] HCA 29, 264 CLR 361, [45] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). The idea of unfair prejudice was said in R v Bauer [2018] HCA 40, 266 CLR 56, [73] to convey the “idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way”.
The apprehended risk of improper use in the present case appears to be that the jury might mistakenly treat evidence of one of the accused having been involved in the home invasion as evidence that the other was also involved. The point was most strongly pursued by counsel for Mr Allred, who argued that the (superficially) much stronger case against Mr Elliott might overwhelm the weaker case against his client and distract the jury from the weaknesses in it.
I consider that danger to be slight, and not such as to outweigh the probative value of the evidence (even though that value may be debatable). If evidence concerning the participation of one accused is led as part of the case against the other, there is no doubt that directions to the jury will be sought and given concerning the use to which it can properly be put. Those directions need not be particularly complicated or nuanced, and there is no reason to be fearful as to the jury’s ability to follow them (cf R v PWD [2010] NSWCCA 209, [90] (Beazley JA, Buddin and Barr JJ agreeing).
Conclusion
I will therefore make an order under s 192A that the body of evidence referred to in these reasons is admissible to prove the existence and carrying out of an agreement between the accused, and is not excluded pursuant to s 137. I have departed from the terms of the proposed order set out in the Application in Proceeding as I think it is preferable to identify more directly the use to which the evidence can be put.
My order is not intended to foreclose admission of any specific parts of the evidence that might be supported on other bases: eg, as admissions pursuant to s 87 of the Evidence Act.
Separate trials
Mr Allred’s submissions on the application to separate the trials stressed the difference between the evidence connecting him with the incident (said to be weak) and that connecting Mr Elliott with the incident (said to be much stronger). He relied on the potential for an illogical finding of guilt by association in the event that Mr Elliott is convicted.
As I have said above, I consider that, to the extent that that danger exists, it can be guarded against by appropriate directions to the jury. Further, if (as I have determined) the evidence against Mr Elliott is also admissible in the case against Mr Allred, the small danger of illogical use of the evidence will need to be addressed by directions regardless of whether the two accused are tried together or separately. There is little or no advantage to Mr Allred in a separate trial.
Meanwhile, the evidence of the complainants (together with the police officers and others who attended after the incident) is on any view admissible in both cases and an order for separate trials would require that evidence to be given twice. While the nature of Mr Allred’s case is such that the complainants are unlikely to face any serious challenge in cross-examination, it would nevertheless be inconvenient and stressful for them to have to give oral evidence about what happened to them twice. In addition, in the light of the order that I propose to make under s 192A, most if not all of the evidence against Mr Elliott is also relevant (for a particular purpose) and admissible against Mr Allred. That magnifies the inconvenience of separate trials.
The Application in Proceeding seeking an order for separate trials will therefore be dismissed.
Orders
In both proceedings the orders of the Court are as follows:
(1)The Application in Proceeding filed on 14 May 2022 is dismissed.
(2)Pursuant to s 192A of the Evidence Act 2011 (ACT) (the Act) the Court rules that, in relation to each accused, evidence of acts done by the other accused during or in connection with events on 7 July 2020 at 13/31 Goldstein Crescent Chisholm:
(a)is admissible for the purpose of seeking to prove the existence of an agreement, in furtherance of which the acts charged against the accused were committed, for the purposes of s 45A of the Criminal Code 2002 (ACT); and
(b)is not excluded pursuant to s 137 of the Act.
I will hear the parties as to whether publication of these reasons should be delayed until the conclusion of the trial.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett Associate: Date: |
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