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 headlock. Mr Smith-Shields then punched him a second time. He then punched him a third time. OM managed to get out of the headlock and Mr Smith-Shields threw a fourth punch

which connected with the side of the complainant’s jaw. This caused OM to fall to the

ground and lose consciousness. He suffered a broken jaw and lost a tooth.

4.   The Crown case statement does not identify where the first punch landed. The Crown case is that following the second punch OM appeared to be winded and gasping for air consistent with the punch being to his stomach. The Crown case is that the third punch

was to the complainant’s right side. The Crown case is that the fourth punch connected

with the right side of the complainant’s jaw.

5.    That afternoon OM received an Instagram message from Mr Smith-Shields. The next day he received a further Instagram message which contains implied admissions. The statement of UU also makes reference to an Instagram message sent by Mr Smith-Shields the morning after the incident which also contains implied admissions.

6. The Crown case against Mr Loughhead is based on s 45A of the Criminal Code 2002 (ACT). The way the Crown case is put is that the accused entered into an agreement with Mr Smith-Shields to assault OM, and that an offence was committed either in accordance with the agreement or in the course of carrying out the agreement. The liability of Mr Loughhead is said to extend to the fourth punch because even though OM had escaped from the headlock, the fourth punch occurred shortly after he had done so and Mr Loughhead had not withdrawn from the agreement prior to that punch.

Arguments in support of the application for a separate trial

7.    Counsel for Mr Loughhead submitted that if separate trials are not directed the accused will suffer unfair prejudice, despite any direction by the trial judge, because a jury would

engage in “impermissible tendency reasoning” as follows:

(a)	he was in the company of his friend Mr Smith-Shields;
(b)	he knew his friend did not like the complainant and why;
(c)	his friend made a decision to attack the complainant; and
(d)	motivated by that friendship and aware of the relationship evidence he decided to assist his friend.

8.   Counsel for Mr Loughhead explained in oral submissions that this was not tendency reasoning in the strict sense but rather involved relying upon a stereotype in asserting how Mr Loughhead would have acted.

9.    The evidence is not impermissible tendency reasoning. Rather, the matters identified are circumstances which may legitimately be relied upon in support of the Crown case that

Mr Loughhead’s involvement was as part of the joint commission of the offence. It is

correct that the chain of reasoning does rely upon assumptions as to how persons in the position of Mr Loughhead might have reacted. Whether those circumstances are sufficient to prove beyond reasonable doubt that he did act in that way will be a matter for the jury to determine. No doubt counsel will remind them to be cautious about applying any stereotype to the individual circumstances of Mr Loughhead. However, that is fundamentally a jury question. There is no unfair prejudice to Mr Loughhead in having the case put in that way. Further, even if there was a separate trial, that would still be a trial of a charge based upon joint commission at which the evidence would be admissible.

10. Next, he asserted that there is no cross-admissibility of evidence of any relationship between the accused, Mr Smith-Shields, and the female Charlotte, or evidence of animus between Mr Smith-Shields and the complainant.

11. As will be apparent from what I have said a moment ago, I do not accept that submission. As part of the case against Mr Loughhead, it would be necessary for the Crown to establish that there was animus between Mr Smith-Shields and the complainant and that Mr Loughhead knew of that animus. As a step along the way to proving those two things, it would be open to the Crown to lead evidence of the reasons for the animus between Mr Smith-Shields and the complainant.

12. Next, counsel pointed to the text messages sent by Mr Smith-Shields to the complainant and to UU. It is correct that those text messages contain no implied admissions directly relevant to the actions of Mr Loughhead. The trial judge would have to give a direction as to precisely how the jury was entitled to use those messages and the implied admissions within them. There is no reason why the jury would not comply with any such direction. The likely admission of that evidence against Mr Smith-Shields is certainly not such that there is a risk of unfair prejudice to Mr Loughhead in a joint trial.

13. Finally, counsel submitted that “There is a very real risk that the gravity of the conduct of

the accused Smith-Shields and the strength of the case against him will poison the defence of the accused Loughhead especially in circumstances where the Crown relies upon Section 45A of the Criminal Code 2002 and alleged joint commission which specifically

invites such a reasoning process”.

14. This submission appears to be that the strength of the Crown case against Mr Smith-Shields and the gravity of the conduct is such that Mr Loughhead will get dragged down with him because the jury will fail to differentiate their conduct in the manner which the law requires.

15. In my view, there is no reason to doubt that a jury would comply with the directions that it was given and would separately consider the circumstances of the two separate accused. I do not consider that there is any significant risk that by reason of the confronting nature of the facts alleged against Mr Smith-Shields, or because of the limits that may be put on any part of the evidence led principally against Mr Smith-Shields, Mr Loughhead will suffer any unfair prejudice by being tried at the same time as Mr Smith-Shields.

16. It should be noted that at present the trial is listed for 2 June 2020 and that, having regard to the recent legislative amendments resulting from the COVID-19 pandemic, there is some prospect that the trial may proceed as a judge alone trial. Obviously if that was the case, the submissions as to the possible misuse of evidence or failure to comply with judicial directions would no longer be relevant. However, the reasons that I have given are on the basis most favourable to Mr Loughhead, namely, that the trial would be before a jury.

Decision

17. The authorities relevant to applications for separate trials for offences alleged to have been committed jointly are reviewed in R v Fernando [1999] NSWCCA 66 at [199]-[211] and Symss v R [2003] NSWCCA 77 at [68]-[75] (Symss).

18. For the reasons I have given earlier, none of the arguments advanced on behalf of Mr Loughhead can be accepted. Counsel for Mr Loughhead placed significance upon the statement of relevant principles set out by Hunt J in an unreported decision quoted in Symss at [69] as follows:

“Briefly, the relevant principles are that:

1.        where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and

2.        where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and

3.        where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,

a separate trial will usually be ordered in relation to the charges against the applicant. The

applicant must show that positive injustice would be caused to him in a joint trial.”

19. I accept that in the circumstances postulated in the passage that I have quoted, it may be appropriate that there be separate trials. It is clear that items 1, 2 and 3 in the passage that I have quoted are cumulative factors: see R v Ronen [2004] NSWSC 1289 at [61]. In my view, whatever may be said about the respective strengths or weaknesses of the cases against each of the joint accused (item 1), it cannot be said that items 2 or 3 are applicable in this case.

20. Taking into account the interests of justice as a whole and not only the interests of the accused Mr Loughhead, there is an overwhelming case for having the charges tried together. The alternative would require two trials at which almost all of the same evidence would be given and witnesses including, most significantly, the complainant and UU would have to give evidence twice. Such a course would clearly be inappropriate. Therefore, the application must be dismissed.

Order

21. The order of the Court is:

1.       The Application in Proceeding filed 4 March 2020 by the accused, Bailey Loughhead, is dismissed.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 28 April 2020