R v Mack

Case [2009] ACTSC 83 16 July 2009

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R v EDWIN BOBBY MACK
[2009] ACTSC 83 (16 July 2009)

CRIMINAL LAW & PROCEDURE – information, indictment or presentment – joinder of counts, ss 269, 434B(1) Crimes Act 1900 (ACT) – severance of indictment, s 264(2) Crimes Act 1900 (ACT) – whether accused ‘prejudiced or embarrassed’ in their defence – discreditable nature of sexual intercourse without consent charge

Crimes Act 1900 (ACT), ss 264(2), 269, 296, 434B(1)
Evidence Act 1995 (Cth), ss 97, 101, 136

Crimes Act 1958 (Vic)
Crimes Act 1914 (Cth), s 4K(3)

Court Procedures Rules 2006 (ACT), rr 4751, 4753

Williams G, “The Count System and the Duplicity Rule” [1966] Crim LR 255

Yates C, “How Many Counts to an Indictment” [1976] Crim LR 428
Tucker P, “Joinder of Criminal Counts in Queensland – Principles, Policy and Conflict” (1998) 17 Aust Bar Rev 239
Farrin J, “Rethinking Criminal Joinder: an Empirical Analysis of the Empirical Research and its Implications for Justice” (1989) 52 Law Cont Probl 325
M Weinberg, “Multiple Counts and Similar Fact Evidence” in Campbell E and Waller L, Well and Truly Tried (Law Book Co, 1982) pp 250-270
Ross D, “Joinder of Counts Against One Accused” [2004] 9(1) Deakin LR 197

Fitzgerald v Director of Public Prosecutions & Ors (1991) 24 NSWLR 45
De Jesus (1986) 22 A Crim R 375
Quinn (1991) 55 A Crim R 435
Bullen (1998) 102 A Crim R 74
R v CHS (2006) 159 A Crim R 560
Taipavalu (2002) 130 A Crim R 513
R v Christou [1997] AC 117
R v KRA [1999] 2 VR 708
R v GAE [2000] 1 VR 198
R v McBride [2007] ACTSC 8
R v TJB [1998] 4 VR 621
Sutton v The Queen (1984) 152 CLR 528
Hoch v The Queen (1988) 165 CLR 292
R v Collie, Kranz and Lovegrove (1991) 56 SASR 302
R v Demirok [1976] VR 244
Connelly v Director of Public Prosecutions (UK) [1964] AC 1254
Cady v Smith (1993) 117 FLR 132
R v Kristiansen [2008] ACTSC 110
Bikic (2000) 112 A Crim R 300

No. SCC 328 of 2008

Judge: Refshauge J
Supreme Court of the ACT

Date: 16 July 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 328 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN

v

EDWIN BOBBY MACK

ORDER

Judge:  Refshauge J
Date:  16 July 2009
Place:  Canberra

THE COURT ORDERS THAT:

The time for making the application to sever counts on the indictment under r 4763(3) of the Court Procedures Rules 2006 (ACT) be abridged to 9 July 2009.

The fifth and sixth counts of the indictment be severed from the first, second, third and fourth counts.

The accused, Edwin Bobby Mack, has been arraigned before this court on an indictment containing six counts, one of which is in the alternative to another. Just prior to trial, the accused applied to sever all but one of the counts from the indictment.

The indictment signed on 14 October 2008 contains the following counts:
The DIRECTOR…

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 Mack

Details

AGLC: R v Mack [2009] ACTSC 83
Case: [2009] ACTSC 83
Decision Date: 16 July 2009

CaseChat Overview and Summary

The matter of R v Mack came before the court where the accused, Mack, faced a series of criminal charges. The dispute centred around the joinder of counts in the indictment, particularly whether the counts should be severed for trial separately. The court had to decide if the nature of the charges, specifically the discreditable nature of a charge of sexual intercourse without consent, would prejudice or embarrass Mack in his defence of the other counts.

The legal issues before the court involved the interpretation and application of sections 269, 434B(1) and 264(2) of the Crimes Act 1900 (ACT). The court needed to determine if Mack would indeed be prejudiced or embarrassed in his defence if the counts were not severed, particularly given the discreditable nature of one of the charges. The court also considered the implications of rule 4763(3) of the Court Procedures Rules 2006 (ACT) concerning the timing of applications to sever counts.

In reaching its decision, the court noted that the nature of the charge of sexual intercourse without consent could indeed prejudice Mack in the defence of the other charges. This was considered particularly significant due to the potential embarrassment it could cause to the accused. The court found that severing the fifth and sixth counts from the first four was necessary to prevent any such prejudice. Consequently, the court abridged the time for making the application to sever counts and ordered that the fifth and sixth counts be severed from the others.

Orders

Orders of the court

1. The time for making the application to sever counts on the indictment under r 4763(3) of the Court Procedures Rules 2006 (ACT) be abridged to 9 July 2009.

2. The fifth and sixth counts of the indictment be severed from the first, second, third and fourth counts.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Mack [2009] ACTSC 83

Most Recent Citation

Cases Citing This Decision

Director of Public Prosecutions v Murphy [2023] ACTSC 4
Citation 1

…v CX [2016] ACTSC 106 R v GAC [2007] NSWCCA 315; 178 A Crim R 408 R v Harker [2004] NSWCCA 427 R v Joiner [2002] NSWCCA 354; 133 A Crim R 90 R v Mack [2009] ACTSC 83 R v QX (No 5) [2021] ACTSC 247; 292 A Crim R 193 R v Teys [2001] ACTSC 29; 119 A Crim R 398 Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 52…
R v Cunningham; R v Moarefi [2020] ACTSC 24
Citation 2

…4 R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90 R v Fernando [1999] NSWCCA 66 R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 R v Mack [2009] ACTSC 83; 4 ACTLR 55 R v Middis (Unreported, Supreme Court of New South Wales, Hunt J, 27 March 1991) R v Patsalis and Spathis [1999] NSWSC 649; 107 A Crim R…
R v EP (No 2) [2019] ACTSC 156
Citation 3 (Para 1)

…By reference to the decision of R v Mack [2009] ACTSC 83; 4 ACTLR 55 ( Mack ), counsel for the accused submitted that, in the absence of a finding of cross-admissibility of evidence, there is an inevitable prejudice to the accused from hearing all six counts together and the accused need not establish some special…
Ridgeway v the Queen [1995] HCA 66
Citation 4

…4 Amato v. The Queen (1982) 69 CCC (2d) 31; Reg. v. Mack (1988) 44 CCC (3d) 513.…
Looseley, R v. [2001] UKHL 53
Citation 5

…58. These facts may be contrasted with the example given by Lamer J in R v Mack (1988) 44 CCC (3d) 513, 553 of the police officer who "decides that he wants to increase his performance in court". To this end, he plants a wallet with money in an obvious location in a park and keeps watch. This is unacceptable behav…

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Cases Cited

Director of Public Prosecutions v Fitzgerald [2019] VCC 710
Citation 1

…Fitzgerald v Director of Public Prosecutions & Ors (1991) 24 NSWLR 45 De Jesus (1986) 22 A Crim R 375 Quinn (1991) 55 A Crim R 435 Bullen (1998) 102 A Crim R 74 R v CHS (2006) 159 A Crim R 560 Taipavalu (2002) 130 A Crim R 513 R v Christou [1997] AC 117 R v KRA [1999] 2 VR 708 R v GAE [2000] 1 VR 198 R v McBride [2007] ACTSC 8 R v TJB [1998] 4 VR 621 Sutt…
R v Thor Kristiansen [2008] ACTSC 110
Citation 2 (Para 1)

…clude a variety of counts which are appropriately connected but which are not based on the one statutory provision. See, for example, R v Kristiansen [2008] ACTSC 110.…
R v Collie [2007] SASC 293
Citation 3 (Para 1)

…He also relied on a summary of the relevant factors which he submitted had been identified by King CJ in R v Collie, Kranz and Lovegrove (1991) 56 SASR 302, when his Honour “ discussed ‘strong reasons of principle and policy’ for not ordering a separate trial ”. That case was, of course, a case about the joint trial…
R v McBride [2007] ACTSC 8
Citation 4 (Para 1)

…een cited with approval in R v KRA [1999] 2 VR 708 (at 714) and R v GAE [2000] 1 VR 198 (at 215). They were also adopted by Connolly J in R v McBride [2007] ACTSC 8 (at [15]).…
Gipp v The Queen [1998] HCATrans 212
Citation 5 (Para 1)

…It has to be said, however, as Callaway JA observed in R v TJB [1998] 4 VR 621 (at 626), that amendments to the Crimes Act 1958 (Vic) in 1997 had substantially changed the law in that jurisdiction by amendments that were intended to “ overrule ” De Jesus . His Honour further observed that the House of Lords…
Webb v the Queen [1994] HCA 30
Citation 6

…ions they are given by the judge. A fair-minded lay observer takes that very factor into account in considering whether a trial is fair: compare Webb (1994) 181 CLR 41 at 55; 73 A Crim R 258 at 266. 4.There are nevertheless cases where the risk of prejudice is unacceptable. It will often be found that that is so in…
Hoch v the Queen [1988] HCA 50
Citation 7 (Para 1)

…e Jesus . His Honour further observed that the House of Lords in R v Christou had reviewed De Jesus and Sutton v The Queen (1984) 152 CLR 528 and Hoch v The Queen (1988) 165 CLR 292 and had rejected their application in England. In the light of this, one must use statements in R v Christou and in post-1997 Victorian autho…
Sutton v The Queen [1984] HCA 5
Citation 8

…(2002) 130 A Crim R 513 R v Christou [1997] AC 117 R v KRA [1999] 2 VR 708 R v GAE [2000] 1 VR 198 R v McBride [2007] ACTSC 8 R v TJB [1998] 4 VR 621 Sutton v The Queen (1984) 152 CLR 528 Hoch v The Queen (1988) 165 CLR 292 R v Collie, Kranz and Lovegrove (1991) 56 SASR 302 R v Demirok [1976] VR 244 Connelly v Director of P…
[1999] VSCA 157 [1999] VSCA 157
Citation 9 (Para 1)

…He noted that these comments had been cited with approval in R v KRA [1999] 2 VR 708 (at 714) and R v GAE [2000] 1 VR 198 (at 215). They were also adopted by Connolly J in R v McBride [2007] ACTSC 8 (at [15]).…
[1997] AC 117 [1997] AC 117
Citation 10 (Para 1)

…Mr Lundy referred me, also, to the speech of Lord Taylor of Gosforth in R v Christou [1997] AC 117 where (at 129) his Lordship said about the factors to be taken into account in an application to sever counts in an indictment:…
[1964] AC 1254 [1964] AC 1254
Citation 11 (Para 1)

…used who may be quite disadvantaged by multiple trials, or the prosecution “splitting its case” ( Connelly v Director of Public Prosecutions (UK) [1964] AC 1254 (at 1296, 1359-60, 1367-8), fairness to witnesses who may have to give evidence on many occasions and be cross-examined, fairness to the community when t…

Legislation Cited

Crimes Act 1900 (ACT) 264(2), 269, 296, 434B(1)
5 mentions (from Para 1)
Evidence Act 1995 (Cth) 101, 136, 97
4 mentions (from Para 1)
Court Procedures Rules 2006 (ACT) 4751, 4753
3 mentions (from Para 1)
Crimes Act 1914 (Cth) 4K(3)
2 mentions (from Para 1)
Crimes Act 1958 (Vic)
1 mention (from Para 1)