R v Loughhead - [2020] ACTSC 78

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Loughhead

Citation:

[2020] ACTSC 78

Hearing Date:

8 April 2020

Decision Date:

8 April 2020

Before:

Mossop J

1.	The Application in Proceeding filed 4 March 2020 by the

Decision:

accused, Bailey Loughhead, is dismissed.

Catchwords:	CRIMINAL LAW – PRE-TRIAL APPLICATION – Application for separate trials under s 264(2) Crimes Act 1900 (ACT) – reckless infliction of grievous bodily harm – offences alleged to have been committed jointly – whether the accused would suffer unfair prejudice in a joint trial – he would not – application dismissed
Legislation Cited:	Crimes Act 1900 (ACT), s 264(2) Criminal Code 2002 (ACT), s 45A
Cases Cited:	R v Fernando [1999] NSWCCA 66 R v Ronen [2004] NSWSC 1289 Symss v R [2003] NSWCCA 77
Parties:	The Queen (Crown) Bailey Loughhead (Accused) Jesse Smith-Shields (Accused)
Representation:	Counsel
M Smith (Crown)
J Pappas (Accused Loughhead) B Morrisroe (Accused Smith-Shields)
Solicitors
ACT Director of Public Prosecutions (Crown)
Tu’ulakitau McGuire (Accused Loughhead)
Sharman Robertson (Accused Smith-Shields)
File Numbers:	SCC 236 of 2019 SCC 237 of 2019
SCC 238 of 2019
MOSSOP J:
Introduction

1. The accused, Bailey Loughhead, is charged along with Jesse Smith-Shields with recklessly inflicting grievous bodily harm upon the complainant, who I will refer to as OM. He has applied for an order under s 264(2) of the Crimes Act 1900 (ACT) for an order that he be tried separately from Mr Smith-Shields. That section provides:

(2) If, before trial, or at any stage of a trial, the court is of opinion that… for any other reason
it is desirable to direct that the person should be tried separately for 1 or more offences charged in an indictment, the court may order a separate trial of a count or counts of the indictment.

2. On its terms, it is not obvious that the section applies where offences are alleged to have been committed jointly and it is sought to have one jointly accused person tried separately. Both parties proceeded on the basis that the section did apply. It is not necessary to explore further whether it is within the scope of the section or to examine any other sources of power to make the orders sought. That is because, for the following reasons, I consider that the application should be dismissed.

The Crown case

3. The basic facts alleged by the Crown are as follows. All relevant persons were at a music festival in Commonwealth Park in central Canberra. Mr Smith-Shields was in the company of Mr Loughhead. The complainant, OM, was in the company of his partner UU. Mr Smith-Shields and OM had an unpleasant verbal interaction concerning a female

referred to as “Charlotte”. UU was holding OM trying to avoid him getting into a fight. UU

then saw Mr Smith-Shields throw a closed fist punch at OM with his right hand. OM fell to the ground. He got back to his feet. Mr Loughhead grabbed OM and forced him into a…

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 Loughhead

Details

AGLC: R v Loughhead [2020] ACTSC 78
Case: [2020] ACTSC 78
Decision Date: 8 April 2020

CaseChat Overview and Summary

In the case of R v Loughhead, the respondent applied for a separate trial in relation to two offences of reckless infliction of grievous bodily harm. The alleged offences were committed jointly with another accused, and the matter was before the court on a pre-trial application under section 264(2) of the Crimes Act 1900 (ACT). The court was tasked with determining whether the respondent would suffer unfair prejudice in a joint trial, which would warrant a separate trial.

The primary legal issue before the court was whether the respondent would be prejudiced by a joint trial, as provided for under section 264(2) of the Crimes Act. The court considered the nature of the offences, the relationship between the accused, and the potential for prejudice in a joint trial. The respondent argued that the joint trial would cause him unfair prejudice due to the nature of the charges and the potential for confusion of the issues.

The court dismissed the application for a separate trial. It was found that the respondent would not suffer unfair prejudice in a joint trial. The court considered the evidence presented and concluded that a joint trial would not result in prejudice to the respondent. The court's decision was based on the circumstances of the case and the potential for prejudice in a joint trial. The application for a separate trial was dismissed.

The final orders of the court were that the application for a separate trial was dismissed, and the matter proceeded to trial as a joint trial. The court did not grant the application for a separate trial, and the offences were to be tried jointly with the other accused.

Orders