R v Elliott; R v Allred - [2022] ACTSC 235

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 R v Bauer [2018] HCA 40, 266 CLR 56 R v Falzon [2018] HCA 29, 264 CLR 361 R v PWD [2010] NSWCCA 209 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…

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 Elliott; R v Allred

Details

AGLC: R v Elliott; R v Allred [2022] ACTSC 235
Case: [2022] ACTSC 235
Decision Date: 1 September 2022

CaseChat Overview and Summary

The case of R v Elliott; R v Allred involved two defendants charged under section 45A of the Criminal Code 2002 (ACT), which pertains to offences involving an agreement between two or more persons to commit a serious indictable offence. The nature of the dispute was whether the evidence of acts done by one accused, Allred, could be used to prove the existence of an agreement between him and the other accused, Elliott. The matter was heard in the Supreme Court of the Australian Capital Territory.

The legal issues before the court encompassed the admissibility of evidence concerning acts performed by one accused, which the Crown sought to use to establish an agreement with the other accused. A key point of contention was whether such evidence was permissible under the relevant statutory provisions and case law, and if it could be admitted without unfairly prejudicing the accused who was not directly involved in those acts. Additionally, the court considered whether a separate trial for one of the accused would be appropriate given the disparity in the strength of the Crown's case against each defendant.

The court held that evidence of acts done by Allred could be relevant to proving an agreement with Elliott, provided it was pertinent and not unfairly prejudicial. The court found that the Crown's case against Allred was indeed stronger, and that this imbalance could potentially prejudice Elliott if they were tried together. Consequently, the court granted an application for a separate trial for Elliott, reasoning that it was in the interests of justice to try the two defendants separately to prevent any unfair prejudice. The orders of the court mandated that Elliott and Allred be tried separately, ensuring that each defendant received a fair trial based on the evidence pertinent to them alone.

Orders

Orders of the court

See [38]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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