R v Kent (Ruling No 1) - [2009] VSC 300

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION
No. 1544 of 2006

THE QUEEN

SHANE KENT

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JUDGE OF THE COURT:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 and 8 July 2009
DATE OF RULING:	10 July 2009
CASE MAY BE CITED AS:	R v Kent (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2009] VSC 300

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CRIMINAL LAW — Trial — Indictment — Misjoinder — Severance — Cross‑admissibility of evidence — Discretion — ss. 363 and 371, and Rule 2, Presentment Rules, Crimes Act 1958 (Vic)

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Appearances:	Counsel:	Solicitors:
For the Crown	Mr. N. Robinson S.C. with Ms. L. Taylor	Office of the Commonwealth Director of Public Prosecutions
For the Accused	Mr. J. Champion S.C. with Mr. J. O’Sullivan	James Dowsley & Associates

HIS HONOUR:

Shane Kent, the accused in this case, stood trial last year with 11 others on an indictment which originally contained three counts against him: one of intentionally being a member of a terrorist organisation (s. 102.3(1) of the Commonwealth Criminal Code); one of intentionally providing support to a different terrorist organisation (s. 102.7(1) of the Code); and one of making a document connected with a terrorist act knowing of that connection (s. 101.5(1) of the Code). Before that trial commenced, the two latter charges were severed from the indictment for reasons connected with possible prejudice to 10 of the accused’s co-accused. The Court was concerned with the connection between the substance of those counts and al-Qaida: see R v Benbrika (Ruling No. 6).[1] The accused, together with another then accused, Aimen Joud, were the only two of the 12 accused in that trial who were the subjects of these counts which were counts 12 and 13 on the indictment.
[1] [2007] VSC 416
As events transpired, the jury in that trial did not agree on a verdict in respect of the only count the accused then faced, that of knowingly being a member of a terrorist organisation, thus necessitating a new trial on that count. However, the Crown has now reinstated the two severed counts and filed a new indictment, re-numbering those counts as counts 2 and 3 on that indictment after the membership count.
Questions of the joinder of these two counts to the membership count on the new indictment and of the admissibility of certain pieces of evidence sought to be led by the Crown have been raised by the accused and must now be determined before the trial can proceed.
Severance
Although argued after the admissibility questions, it is convenient to rule first on the challenge by the accused to the indictment he faces on the ground that he should not have to face counts 2 and 3 at the same time as count 1. He contends that counts 2 and 3 ought not to have been joined with count 1 because such joinder offends the rules as to presentments prescribed by s. 363 of the Crimes Act 1958.…

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 Kent (Ruling No 1)

Details

AGLC: R v Kent (Ruling No 1) [2009] VSC 300
Case: [2009] VSC 300
Decision Date: 10 July 2009

CaseChat Overview and Summary

The case involved the respondent, Kent, who was charged with multiple offences. The dispute centred on the joinder of these charges and the subsequent severance of the indictment. The matter was heard in the Supreme Court of Victoria. The central legal issues were whether the charges were properly joined and, if not, whether severance was appropriate under the statutory provisions and court rules governing criminal procedure.

The court examined whether the charges against Kent were properly joined under the statutory provisions of the Crimes Act 1958 (Vic) and whether the evidence was cross-admissible. The court also considered the discretion to sever the indictment under section 363 of the Act and the relevant court rules. The respondent argued that the charges should be severed due to misjoinder, while the prosecution maintained that the charges were properly joined and that severance would not be in the interests of justice.

The court held that the charges were improperly joined as they did not form part of the same transaction or series of transactions. The court found that the evidence was not cross-admissible, and therefore, severance was appropriate. The court exercised its discretion under section 363 of the Act and Rule 2 of the Presentment Rules to order severance of the indictment. The court concluded that severance was in the interests of justice and ordered that the charges be tried separately.

The final orders included the severance of the indictment, with each charge to be tried separately. The court provided detailed reasons for its decision, emphasising the importance of ensuring that each charge is tried fairly and that the defendant's rights are protected. The court's decision underscored the importance of proper joinder and the availability of severance where necessary to maintain the fairness of the trial process.

Orders