R v Geoffrey Lionel McCarthy
[2012] ACTSC 105
•14 May 2012
R v GEOFFREY LIONEL McCARTHY [2012] ACTSC 105 (14 May 2012)
EX TEMPORE JUDGMENT
Crimes Act 1900 (ACT), s 264
Criminal Procedure Act 2004 (WA), s 133(4)
Smith v The Queen, Corp v The Queen (2007) 175 A Crim R 528
No. SCC 348 of 2011
Judge: Penfold J
Supreme Court of the ACT
Date: 14 May 2012
IN THE SUPREME COURT OF THE )
) No. SCC 348 of 2011
AUSTRALIAN CAPITAL TERRITORY )
R
v
GEOFFREY LIONEL McCARTHY
ORDER
Judge: Penfold J
Date: 14 May 2012
Place: Canberra
THE COURT ORDERS THAT:
The application for severance of the indictment against Mr McCarthy and a co-offender is refused.
Introduction
Geoffrey McCarthy has applied for severance of an indictment containing two counts of assault occasioning actual bodily harm, one against him and one against an alleged co-offender. The two assaults are said to arise out of one incident in which the accused both assaulted the same complainant.
Both accused are alleged to have made relevant admissions. Mr McCarthy’s co-offender’s alleged admission does not inculpate Mr McCarthy; however, the alleged admission, having been made in a 000 call which was recorded, is seen as easier to prove than Mr McCarthy’s own alleged admission.
Grounds of the application
Mr Thomas, appearing for Mr McCarthy, has framed his application in different ways.
First, he said that the ground on which he sought a separate trial was that the evidence against the co-offender is so overwhelming, because of her admission, that the jury, however carefully directed, will not be able to avoid reasoning impermissibly towards Mr McCarthy’s guilt.
Later, Mr Thomas suggested that the prejudice to Mr McCarthy would arise from guilt by association, again apparently because the evidence against the co-accused is so overwhelming.
Written submissions
Curiously, Mr Thomas’s written submissions referred to s 264 of the Crimes Act 1900 (ACT), which does not apply to indictments involving co-accused but to indictments charging one accused with multiple counts arising out of different circumstances, where there may be a concern that the evidence on some counts may be unfairly prejudicial to the accused in the jury’s assessment of other counts.
As Mr Drumgold for the Crown noted, such cases raise the risk of impermissible tendency reasoning. All the authorities cited in Mr Thomas’s written submissions addressed this kind of impermissible reasoning and this kind of severance issue.
Oral submissions
When asked, Mr Thomas was initially unable to produce any authority for his proposition that separate trials could be required in the absence of any question of the cross-admissibility of evidence or the inculpation of an accused by an admission made by a co-accused.
As noted, he suggested that, where the evidence against the two co-accused was of such different weight, the jury might fall into impermissible reasoning, but he did not attempt to explain why a jury might be driven into impermissible reasoning in such a case or the nature of the impermissible reasoning that could occur. That is, while the process of tendency reasoning can be described so as to explain why it is potentially dangerous, Mr Thomas was not able to articulate the reasoning process by which a jury might decide that the guilt of an offender facing a weak case should be determined by reference to the guilt of a co-accused facing a much stronger case. Mr Thomas did later mention guilt by association, as noted, but did not develop the relevance of this issue and, as Mr Drumgold pointed out, the association between the co-accused was not as such in issue.
Finally, Mr Thomas did not point to anything in the material put before me by affidavit (which effectively consisted of the Crown’s case statement) that drew out any significant differences between the cases against the two accused, except for the fact of the co-accused’s alleged admission having been recorded.
Jury directions
Mr Thomas also queried whether any jury direction would be adequate to prevent impermissible reasoning of the kind that seemed to be concerning him. Given his failure to establish that there was any risk of impermissible reasoning, this was not a particularly significant issue. However, I note that courts hearing joint trials regularly and routinely give standard directions to juries about considering the evidence relevant to each accused separately and I cannot see, on the material currently before me, that anything more than those directions would be necessary in this case.
Smith v The Queen
After a break, Mr Thomas produced the Western Australian case of Smith v The Queen, Corp v The Queen (2007) 175 A Crim R 528 (Smith). That case did involve a claim that co-offenders should have been tried separately, which relied, among other things, on s 133(4) of the Criminal Procedure Act 2004 (WA), a provision which provides specifically for charges against different accused to be heard separately if a joint trial is likely to cause prejudice to an accused. If there is an equivalent ACT provision, it was not brought to my attention.
In Smith, the Western Australian Court of Appeal rejected the claim that separate trials should have been ordered in that case, noting among other things that:
An appropriate direction by his Honour to the jury will be sufficient to neutralise any prejudice to one appellant arising from evidence which is admissible only against the other. Although the evidence which the respondent will adduce at trial will be extensive and complex, the charges do not appear to involve a complicated mixture of admissible and inadmissible evidence as between each of the appellants which a jury could not reasonably be expected to analyse in detail. It is reasonable to expect that the jury, with the benefit of an express and careful direction by his Honour, will not take into account any prejudicial evidence against one appellant which is inadmissible against the other.
Burden on complainants and witnesses
I note also the other relevant considerations on an application for separate trials, including in particular the burden that separate trials would impose on the complainant and other witnesses, as well as on the courts and thereby on the community more generally.
Handling of matters by legal representatives
Finally, I note two concerns about how this matter has been handled.
First, as already mentioned, Mr Thomas’s written submissions seemed to be irrelevant to the subject matter of the application, focussing as they did on severance of different charges against a single accused, and I am not sure why either Mr Thomas’s client or ACT Legal Aid, if that is relevant, should be charged for them.
Secondly, it seems that the co-accused was not given notice of this application by Mr McCarthy’s lawyers, and was not aware of the application until one of the counsel involved in today’s hearing happened to run into the co-accused’s lawyer outside court this morning. The lawyer apparently indicated that he had an interest in this application, at least if there was any likelihood of it being successful. I do not see that this is a satisfactory way for members of the profession to deal with each other or with each other’s clients. This has not, however, caused any problems in this case.
Conclusion
The applicant has not made out any case for severing the indictment to permit separate trials for Mr McCarthy and his co-accused, and the application is accordingly refused.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 29 June 2012
Counsel for the appellant: Mr R Thomas
Solicitor for the appellant: Paul Edmonds & Associates
Counsel for the respondent: Mr S Drumgold
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 14 May 2012
Date of judgment: 14 May 2012
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