R v Goral, Goral & Akcay

[2001] VSC 246

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 424 of 2001

THE QUEEN

v

MICHAEL EDMUND GORAL
DAVID HENRY GORAL and
SULEYMAN AKCAY

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JUDGE:	Teague  J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2001
DATE OF RULING:	20 April 2001
CASE MAY BE CITED AS:	R v Michael Edmund Goral, David Henry Goral and Suleyman Akcay
MEDIUM NEUTRAL CITATION:	[2001] VSC 246

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Criminal Law – Ruling – Application for stay refused – Claimed abuse of process – Differing admissible evidence against co-offenders.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr. J. McArdle QC with Mr. C. Winneke	Office of Public Prosecutions
For the Accused M. E. Goral	Mr. G. Mullaly	Stary Myall
For the Accused D. H. Goral	Mr. D. Brustman	Victorian Legal Aid
For the Accused Akcay	Mr. J. Smallwood QC	Wallington Brand Gattuso

HIS HONOUR:

1. These are my reasons for my ruling, as I did on Friday 20 April last, that I would not grant an application for a stay made on behalf of Michael and David Goral.  Most of the facts as to the background to the application are as set out in the reasons for a ruling I made on 18 April.  I then granted an application made on behalf of Suleyman Akcay for a separate trial of the charges brought against Akcay and the two Goral brothers.

1. On 19 April, the prosecution informed me that the trial against Akcay would proceed first.  Later that day, a fresh presentment was filed.  Ackay was arraigned on two charges, the robbery of Mr Collins on 29 August 1999 and the manslaughter of Mr Collins.  He pleaded guilty to both charges.  He was remanded in custody for a plea in mitigation of penalty at a later date expected to be after the trial of Michael and David Goral.

1. On 20 April, Mr Mullaly for Michael Goral and Mr Brustman for David Goral applied to me for a stay of the hearing against the two brothers on the basis that to permit the trial to proceed on the present presentment would amount to an abuse of process.  The application was opposed by Mr McArdle.  The applicable principles more directly relevant were addressed in four cases to which I was referred by counsel at some length.  They are: Hui Chi-Ming v R [1992] 1 AC 34, R v Howard & ors (1992) 29 NSWLR 242, R v Franklin (unreported, Vincent J, 22 July 1998, and R v Carter [2000] 1 VR 175. Clearly, I have a discretionary power to order a permanent or temporary stay of proceedings if I am satisfied that the conduct of the prosecution involves unfairness to the accused and that tolerance of such conduct would bring the administration of justice into disrepute.

1. It was put to me that it would be an abuse for the prosecution to proceed on the present presentment against Michael and David Goral charging aggravated burglary, armed robbery and murder, as distinct from filing a fresh presentment charging robbery and manslaughter, in the light of the prosecution having accepted pleas of guilty from Akcay on charges of robbery and manslaughter. It was put that, given the similarity of the evidence against all three men, to tolerate such discrimination by the prosecution against the Gorals would bring the administration of justice into disrepute. It was put that there were two specific aspects of discrimination. First, by accepting a plea of guilty to manslaughter by Akcay and dropping the charge of murder, the prosecution was accepting that Akcay was not a party to “…an act of violence done in the course or furtherance of a crime the necessary elements of which include violence…” as required under S.3A of the Crimes Act. Secondly, by accepting a plea of guilty to robbery by Akcay and dropping the charge of armed robbery, the prosecution was accepting that Akcay was not a party to a joint enterprise where the participants had with them an offensive weapon. Given such acceptance, it was argued that it was inappropriate for the prosecution to press charges that involved the prosecution maintaining first, that the Goral brothers were parties to an act etc as proscribed by S.3A, and secondly, that they were parties to a joint enterprise where the participants had with them an offensive weapon.

1. The flaw in what was put to me lay in the assertion that the evidence against Akcay on the one hand, and the evidence against the Goral brothers on the other hand, was substantially similar.  Mr Mullaly put to me that there were minuscule differences, and Mr Brustman that there were only very slight differences.  I am unable to agree.  As to the detail of the differences, I simply refer again to what I said in my reasons for ordering a separate trial for Akcay.  Assessed in an appropriately compartmentalised way, there is significantly differing admissible evidence against the Goral brothers from that against Akcay.  In Howard at 253, it was noted that “unless all co-offenders are dealt with at the one trial, there is always a possibility of differing outcomes in relation to different offenders, and, if this be unfairness, it is not ordinarily regarded as unfairness of a kind that attracts judicial intervention." Where there is differing evidence, there is always a like possibility. The like point was made in somewhat different terms by Vincent J in Franklin at 32.

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