R v Galas (No 1)

[2006] VSC 159

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1485 of 2004

THE QUEEN

v

CRAIG TARAS GALAS
ISMAIL MUHAIDAT
STEVEN MIKHAEL

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Ruling No. 1

JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April 2005
DATE OF RULING:	18 April 2005
DATE OF REASONS:	1 May 2006
CASE MAY BE CITED AS:	R v Galas & Ors (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2006] VSC 159

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Criminal Law – Ruling – Application for severance of all counts other than murder – Partial severance ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen S.C. with Mr T. Walsh	Office of Public Prosecutions
For the Accused Galas	Mr B. Lindner	Clarebrough Pica
For the Accused Muhaidat	Mr J. Kaufman	C Marshall & Associates
For the Accused Mikhael	Mr C. Dane Q.C.	Balot Reilly

HIS HONOUR:

1. Application was made to me, at the commencement of the trial of the three accused on a presentment that contained 11 counts, to rule that all but one of the counts, count 3, that of murder, were not properly joined and should be severed.  I ruled that counts 4 to 11 should be severed, but that counts 1 and 2 should not be. These are my reasons for so ruling.

1. The three accused were arrested in November 2003.  The arrests followed police investigations into the shooting of Robert D’Amico (“the deceased”) on 2 September 2003 at the house in Tullamarine where the deceased was living with a David Walker.  Information supplied by Walker pointed to the shooting having occurred in the course of the house being broken into late at night by several men looking for cannibis.  Police investigations led to their obtaining warrants to tap telephones and install listening devices.  The information  obtained after that led to their arresting the first two accused on 12 November 2003, and the third accused on 19 November 2003. All three were charged with cultivating and trafficking cannabis as a result of information obtained at, before, and after the arrest of each accused. The three accused were also charged as to the events of 2 September 2003 with the murder of Robert D’Amico, aggravated burglary and attempted armed robbery. I now set out in a table, the basic information as to the 11 counts extracted from the presentment:

No	1st	2nd	3rd	Date	Place	Nature of charge	Section and Act
1	X	X	X	2/9/03	Tullamarine	Aggravated burglary	77 Crimes Act
2	X	X	X	2/9/03	Tullamarine	Attempted armed robbery	75A Crimes Act
3	X	X	X	2/9/03	Tullamarine	Murder	3A Crimes Act and common law
4	X	X	27/10 to 12/11/03	Keilor Park	Traffick not less than commercial quantity  of cannabis	71AA Drugs P&CS Act
5	X	X	27/10 to 12/11/03	Keilor Park	Cultivate not less than commercial quantity of cannabis	72A  Drugs P&CS Act
6	X	X	27/10 to 12/11/03	Keilor Park	Theft of electricity	74 Crimes Act
7	X	X	3/11 to 12/11/03	Glenroy	Traffick  cannabis	71AC Drugs P&CS Act
8	X	X	3/11 to 12/11/03	Glenroy	Cultivate cannabis	72B  Drugs P&CS Act
9	X	X	3/11 to 12/11/03	Glenroy	Theft of electricity	74 Crimes Act
10	X	X	19/11/03	Roxburgh Park	Traffick  cannabis	71AC Drugs P&CS Act
11	X	X	19/11/03	Roxburgh Park	Cultivate cannabis	72B  Drugs P&CS Act

1. There was little argument before me as to the severance of counts 4 to 11.  I had had the benefit of an outline of argument prepared by each of Ms Pullen SC, with Mr Walsh, prosecuting, and Mr Lindner, for the first accused.  I referred to the authorities that I had considered, and indicated my preliminary view that severance was appropriate.  I now set out in a further table the authorities considered by me, or referred to in the course of submissions, or both:

Bazley	(1986) 21 A Crim R 19
Coulston	Unreported VCCA, 12 April 1995
De Jesus	(1986) 68 ALR 1
Debs & Roberts	[2005] VSCA 66
Demirok	[1976] VR 244
Hofschuter	(1992) 65 A Crim R 167
Jacobs & Mehajer	(2004) 151 A Crim R 452
McLean	(2000) 2 VR 118
NJA (No 2)	(2001) 82 SASR 1
NJA	[2002] SASC 113
Pollitt	[1991] 1 VR 299
Sutton	(1984) 152 CLR 528

1. Ms Pullen argued that counts 4 to 11 should not be severed.  She contended that the events the subject of those counts were significant as to the charge of murder as going to the relationship between the three accused and as to motive.  Without hearing from counsel for any accused, I ruled in favour of severance. The further eight counts were as to events at significantly later dates, in different locations, and not involving all three defendants.  While there was some evidence as to those events which were the subject of the eight counts, that was of potentially probative value as to the charge of murder, that evidence could be adduced in an appropriate way, even though the eight counts were severed.  In my assessment the eight counts did add undue complexity, and with an appreciable risk of prejudice.

1. As to counts 1 and 2, Mr Lindner placed great emphasis on what Beach J had said in Pollitt.  That was a case in which Beach J had ruled in favour of severance.  There, the presentment contained one count of the murder of  S, and one count of conspiracy to murder W.  Beach J referred to authorities deprecating the inclusion of conspiracy counts with substantive offence counts.  At page 302, he said that, in his opinion, it was not in the interests of justice to try the two counts together.  He went on to say: “In conclusion, may I add that in my own view it is highly undesirable to include any other count on a presentment that contains one or more counts of murder and that course should only be permitted in exceptional circumstances”.

1. Complexity considerations that Mr Lindner referred to included: that there were three accused; that the charge of murder included not just murder at common law but statutory murder; that because of the statutory murder charge, there would be additional questions as to causation linked to the issue of what act or acts of violence caused death.  Mr Lindner argued that there was a potential for prejudice to the accused because the jury could treat findings as to issues to be addressed as to counts 1 and 2 as a stepping stone for count 3.  Mr Kaufman, who appeared for the accused Muhaidat adopted the arguments of Mr Lindner as did Mr Dane Q.C., who appeared for the accused Mikhael. Mr Dane also raised further arguments, one linked to a potentially apt metaphor as to spoon and soup, the other linked to the circumstance that, at the committal hearing, his client had not been committed for trial in this court on the common law murder count.

1. In Sutton and De Jesus, there was a comprehensive analysis of the legal principles applicable to the exercise of discretion in severing counts on a presentment.  In Coulston, a retrial of a murder charge was ordered after the Court of Criminal Appeal concluded that the trial judge’s discretion to order severance should have been exercised to avoid the risk of prejudice to the accused. The Court noted that the determination of the matter should be undertaken with the general propositions referred to in Sutton and De Jesus in mind.  Coulston was significantly different from the instant case in several respects. Most notably, the charges that had not been severed related to events that occurred several weeks after the killing. 

1. In Pollitt, Beach J was clearly directed to authorities concerned with the problems linked to charges of conspiracy.  His attention appears not to have been directed to either Bazley or Demirok.  However, what Beach J said in Pollitt was quoted supportively by each of Mildren J in Hofschuter and by Vincent JA in Debs and Roberts at paragraphs 249 and 250.  Vincent JA did so in the context of noting that the joinder of additional counts in a presentment containing a charge of murder was regarded as inappropriate and rarely permitted until relatively recently.  He went on to note that the possible rationales for the adoption of that stance included a desirability that the number of counts which the jury will need to consider, and about which the trial judge will be required to provide instructions, be kept to the minimum necessary in the circumstances, and concerns about the introduction of undue complexity, prejudice and the potential diversion of jury deliberations into what might be, in the context of the specific case peripheral areas that may result.  I have taken each of those matters into account in arriving at my conclusions that counts 4 to 11 should be severed and that counts 1 and 2 should not.

1. I am not persuaded that there is any appreciable risk of prejudice in permitting counts 1 and 2 to remain, given that much the same evidence will be led, whether the counts are or are not severed.  The position in that regard is quite different to that which applied in Coulston.  The events which are the subject of counts 1, 2 and 3 all occurred within a matter of minutes, at the same place, and involving each of the three accused.  Of course, the jury will have to be given appropriate warnings as to how evidence potentially misused as to propensity and otherwise can and cannot be used.  This will not be a simple trial, even without counts 1 and 2. In my assessment, while their inclusion does add complexity, that added complexity is not undue, and the potential for jury diversion is well within acceptable limits.