R v Hutchison, Lee & Wilby
[2005] VSC 165
•29 April 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1484 of 2004
| THE QUEEN |
| v |
| BROCK HUTCHISON, LINTON LEE AND KURTIS WILBY |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 APRIL 2005 | |
DATE OF RULING: | 29 APRIL 2005 | |
CASE MAY BE CITED AS: | R v BROCK HUTCHISON, LINTON LEE AND KURTIS WILBY | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 165 | |
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Criminal Law – Ruling – Application for separate trial of second accused – Prejudicial effect on the second accused of evidence contained in statement of third accused considered – Applicability of principles relating to separate trials discussed – Prejudicial effect of material in statement unable to be neutralised by judicial direction - Separate trials ordered to ensure fair trial for second accused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Ryan | Stephen Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the First Accused | Mr S. Russell | Leanne Warren & Associates |
| For the Second Accused | Mr M. Tovey QC with Mr J. Dounias | Roberts Beckwith Partners |
| For the Third Accused | Mr S. Johns | White & Associates |
HIS HONOUR:
Application is made on behalf of the accused Lee for a separate trial of the counts before this court.
The principles relating to the discretion to order separate trials are relatively well settled. The paramount principle for a trial judge exercising that discretion is to ensure a fair trial for the accused person. As the Full Court stated in R v. Demirok[1]:
"Essentially, an accused man is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him is admissible evidence and that he is not exposed to prejudice by the introduction against him of material which is irrelevant or in some situations only marginally relevant."
[1][1976] VR 244 at 255
There are, of course, public interest considerations which must also be taken into account. In Demirok's case the court referred to these public interest considerations in these terms:
"In the first place there is the question of the administrative matter of court time spent and public expense incurred if more than one trial is to be conducted. These matters will, in many cases, not be of very great weight; in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts and those interests require that where the accounts of accused persons differ or conflict, their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated re‑trial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials."
The task of an appellate court in determining, post-trial, whether the failure of a trial judge to grant an application for a separate trial constitutes an error in the exercise of the judge's discretion, or whether it has nonetheless resulted in a miscarriage of justice, involves a somewhat different perspective. The establishment of either of these grounds has been described as "notoriously difficult" in R v. Heaney[2].
[2][1992] 2 VR 531 at 555
In R v. Iaria and Panozzo[3], an unreported ruling of Nettle, J. (as he then was), delivered on 2 April 2004, His Honour sought to indicate the practical application of the principles I have enunciated, derived from such cases as Demirok;Gibb and McKenzie v The Queen[4]; Jones and Waghorn v The Queen[5]; and R v. Heaney, to which I have already referred: (see [6] of that ruling). To these cases may be added R v. Torney[6], R v. Hickey and Komljenovic[7] and R v. Suand Goerlitz[8]. Decisions of interstate courts in such cases as R v. Conlon[9], R v. Farrell and Cotton[10] and Collie Kranz and Lovegrove v. The Queen[11] are also instructive.
[3][2004] VSC 110
[4][1983] 2 VR 155
[5](1991) 55 A.Crim.R. 159
[6](1983) 8 A.Crim.R. 437
[7](1995) 89 A.Crim.R. 554
[8][2003] VSC 305
[9](1982) 30 SASR 176
[10](1990) 48 A.Crim.R. 311
[11](1991) 55 A.Crim.R. 139
Whilst ordinarily persons accused of committing a crime jointly should be tried jointly, the cases indicate the issue of separate trials arises in a wide variety of circumstances and each case must turn on its own factual situation. Even in cases of so‑called "cut‑throat defences" the presumption of joint trials does not always prevail. Moreover, the existence of the capacity of a trial judge to direct a jury as to the specific evidence admissible against individual co‑accused is not a conclusive factor in declining to order separate trials.
No purpose is to be served by any analysis of the cases cited. Accordingly, I turn to the factual situation in the instant case.
The thrust of the defence submission is that the material contained in the statement of the co‑accused Kurtis Wilby (and by "statement" I include the prior conversation had by that accused with Sergeant Schmidt) created a prejudice against the accused Lee and a resulting unfairness in the trial process that could not be overcome by any judicial direction.
The description of Wilby says occurred is found in his statement, at p.885 and following of the transcript. The relevant portion may be regarded as follows:
"It was about 7 p.m. and I just went for a drive with them. Linton was driving, I was in the front passenger seat and Brock was sitting in the back seat behind me. About six minutes later we were driving along Karingal Drive when I heard Brock say, 'That's them'. Then we started following them. It was a blue VL Commodore. All the seats were full. There probably would have been five people in the car. The driver had a white cap on but I didn't see the face. I don't know who else was in the car. I just presumed they were the people who Brock had a little tiff with. The ones that hit him on the head. At that stage we were on Ashleigh Avenue, following them. There were two cars in front of us, then the blue Commodore. We were about 200 metres away from them. They must have turned off to the right into a side street and we lost them. Linton turned off Ashleigh Avenue into Beach Street and went towards the train station. He tried to find them for the next four or five minutes until we saw them on Beach Street going the other way to us. Away from the train station. Then we done a U‑turn and went the same direction as the blue Commodore. A bloke in the middle of the back seat turned around and looked at us. We followed them down Beach Road for about two or three minutes. There were two other cars in front between us and the Commodore. We were doing about 60 kilometres an hour. The Commodore then turned left into Ashleigh Avenue and we followed it. One of the cars in front of us turned right so there was just the one car between us and the Commodore. The other car in front of us turned right as well into a side street. Linton was trying to catch up to the car, doing about 70 kilometres an hour. I was talking to Brock and then pulled the visor down because the sun was in my eyes. I then felt a jolt and the seat belt tightened on my chest and I got scared because I didn't know what was happening. I turned round to see what had happened and I see the Commodore take off from in front of us. Linton started flashing his high beams at the Commodore, he hit. I was looking at the rear wing at the back of the Commodore and saw that it was stuffed. It was all caved in and most of the back end. As soon as the car was hit by Linton, the driver of the Commodore accelerated fast to try and get away from us. The Commodore then got to a roundabout. We were about 80 metres from it. The Commodore kept on going faster away from us. Linton kept on going after it, about 75 kilometres an hour. Linton was just glaring at the road and was flashing his high beams at the Commodore. We then got to a second roundabout, I think at Wangarra Crescent, where I saw the Commodore drive over the roundabout and slide out. It looked like the driver of the Commodore punched it and the back end slid out and lost traction basically. We were about 60 metres behind the Commodore where it lost control. I then covered my head with my hands because I was scared of what was going to happen. Linton went through the roundabout then slowed down pretty quick. Brock and Linton started talking and Linton drove past the Commodore slowly. I just poked my head up and said, "Where are we going?" Nobody answered, and we went to Linton's parents' house in Pearcedale."
The crucial aspect of this statement from the defence perspective is that it is indicative of the accused Lee being involved in a chase which continued after the initial impact (be it deliberate or accidental) which occurred some 300 metres from the point of collision between the Commodore and the power pole.
This is quite contrary to the final version of events given by Lee in his record of interview.
The matter, however, does not rest there. It was pointed out that independent witnesses, Shane Jordan and Nicole Harrison, give diametrically opposed accounts of their observations of the events immediately prior to the fatal collision. The former tends to support the contention of the accused Lee that he desisted from any pursuit after the first impact of the 4 Wheel‑Drive with the rear of the Commodore; the latter provides evidence indicative of the pursuit of the Commodore continuing.
It is unnecessary to detail the witnesses' statements or their committal evidence.
There are various and conflicting versions of what occurred given by the occupants of the Commodore, but they may be put to one side for the purposes of this ruling.
It was submitted that the net effect of the admission of the statement of Wilby in any joint trial would be to bolster the credibility of the witness Harrison at the expense of that of Jordan. Moreover, the account of Wilby itself gained credibility because, unlike statements made by an co‑accused in "a cut‑throat defence" situation, his utterances may be seen as admissions against interest. Indeed, that is the only basis for their introduction into evidence.
It was also put by the defence that the case against Wilby, based, as it was, on alleged complicity, was extremely weak. As in Conlon's case (ibid), the accused Lee faced the possibility of standing trial with someone against whom the Crown had a tenuous case but who would provide an avenue for the introduction of highly prejudicial evidence against him.
In my view, each of these defence submissions has cogency. But, most importantly, I think it would be impossible for a jury, in the circumstances of this case, to properly follow judicial directions as to the limited admissibility of Wilby's statement. The Crown case against Wilby, which is purely accessorial, depends upon the jury acceptance of his admissions that there was an ongoing pursuit to which he was a party, which admissions the jury must steadfastly ignore in considering the case against Lee.
The authorities cited recognise that there are situations where, despite the presumption that juries will follow judicial directions in separately considering evidence against co‑accused, the intellectual task is too difficult and the risk of prejudice, and hence a fair trial, is too great.
In my view, this case is one of them. The combination of factors to which I have referred compel me to the conclusion that, notwithstanding the public interest matters summarised in Demirok, I should order separate trials.
I should add that given the differing bases of the liability of Lee and the co‑accused, I would not expect there to be a problem of inconsistent verdicts, if indeed prosecutions were to proceed against them.
The other issue for determination is the admissibility of the evidence of the witness Keith Freame, whose statement is found at p.379 and following of the depositions. This matter may be dealt with shortly.
If the Crown can link the observations of Mr Freame of the accused Lee's driving to the pursuit of the Commodore it is clearly relevant evidence, at least as to the nature of that pursuit.
The areas traversed by the accused and the temporal proximity of the driving to the ultimate fatal collision are such that I would not exclude the evidence from jury consideration. In other words, I am not prepared to conclude at this time that this material is necessarily incapable of establishing that for which the Crown contend.
The present circumstances are far removed from those which the Full Court considered in R v. Horvath[12].
[12][1972] VR 533
It may be that, following cross‑examination or in the light of other evidence which may emerge in the course of the trial, a direction about Mr Freame's evidence may need to be given to the jury. However, at this stage I regard the evidence as admissible.
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