JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 & 20 October 2009
DATE OF RULING	11 November 2009
CASE MAY BE CITED AS:	R v Gregory (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 509

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CRIMINAL LAW – Indictment with two counts of defrauding the Commonwealth and one count of conspiracy to dishonestly cause a risk of loss to the Commonwealth – Severance application – Judicial discretion to sever – Whether evidence on first two counts is admissible on the third count and vice-versa – No severance ordered.

Harriman v R [1989] 167 CLR 590, considered.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr N Robinson SC with Mr N Adams	Commonwealth Director of Public Prosecutions
For the Accused	Mr I Temby QC with Ms P Murphy	Sparke Helmore

HIS HONOUR:

Introduction

On 14 July 2009 I heard an application on behalf of the accused to sever the indictment. That application was made on two grounds. First, it was submitted that joinder was not authorised under the applicable rule. Secondly, it was submitted that, if the charges had been properly joined in one indictment, an order should be made in the exercise of discretion severing counts 1 and 2 from count 3.

On 25 August 2009 I published a ruling in relation to that application.[1] In that ruling I set out the three counts and summarised the prosecution case, based upon a summary of prosecution opening which had been filed. This ruling assumes knowledge of the matters set out in that ruling. In my earlier ruling I rejected the submission made on behalf of the accused that the three counts had not been properly joined under the applicable rule. On the discretion to sever, I indicated that I needed to hear further submissions on the issue of cross-admissibility. On 19 and 20 October 2009 I heard those further submissions.
[1]R v Gregory [2009] VSC 358.

Pursuant to an agreement between the parties, argument on 19 and 20 October 2009 proceeded on the assumption that as at the date now fixed for the commencement of the trial, being 1 February 2010, the Evidence Act 2008 (Vic) would be in operation, and the submissions addressed admissibility by reference to the provisions of that Act.

Foreshadowed issues

In my earlier ruling I set out the prosecution case. On counts 1 and 2 the prosecution alleges that Mr Gregory, with Messrs Wheatley, Egglishaw and de Figueiredo, defrauded the Commonwealth in relation to a failure by Mr Wheatley to declare income from the John Farnham “Talk of the Town Tour” for the financial years ended 30 June 1994 and 30 June 1995. It is alleged that the conduct referrable to the first count occurred between January 1994 and 6 October 1995, and that the conduct referrable to the second count occurred between 1 July 1994 and…

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 Gregory (No 2)

Details

AGLC: R v Gregory (No 2) [2009] VSC 509
Case: [2009] VSC 509
Decision Date: 11 November 2009

CaseChat Overview and Summary

The case of R v Gregory (No 2) involved the accused, Gregory, who faced charges of defrauding the Commonwealth and conspiracy to dishonestly cause a risk of loss to the Commonwealth. The dispute centred on a severance application, seeking to separate the three counts of the indictment, as they pertained to different aspects of the alleged criminal conduct. The matter was heard in a relevant Australian court.

The central legal issues before the court were whether the evidence concerning the first two counts of defrauding the Commonwealth could be admitted in the context of the third count (conspiracy) and vice-versa. This was a significant consideration as the admissibility of evidence between the counts could impact the fairness and integrity of the trial process. The court was required to decide whether severance was appropriate in this case, and if so, to what extent.

The court examined the relevant legal principles, particularly the decision in Harriman v R [1989] 167 CLR 590, which provides guidance on the exercise of judicial discretion in severance applications. After careful consideration, the court determined that the evidence on the first two counts was not so closely connected to the third count as to render a joint trial unfair. The court found that severance was not warranted in this instance, as the evidence was not so prejudicial that it could not be properly considered by a jury in the context of the other counts. Consequently, no severance was ordered, and the three counts were to be tried together.

The final orders of the court were that the severance application was dismissed, and all three counts would proceed to trial jointly. This decision ensures that the evidence on each count remains admissible in the context of the others, while maintaining the fairness and integrity of the trial process.

Orders