R v Mitchell and Brown - [2005] VSC 43

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1450 of 2004

THE QUEEN

JEFFREY KEVIN MITCHELL AND
GAVIN JAMES BROWN

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JUDGE:	WHELAN J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	2 March 2005
CASE MAY BE CITED AS:	R v Mitchell and Brown (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2005] VSC 43

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Ryan	Solicitor for the Office of Public Prosecutions
For the First Defendant	Mr I. Crisp	Geoffrey Tobin Pty
For the Second Defendant	Mr D. Whitchurch	Kieran S. Cox

HIS HONOUR:

The amended presentment in this matter charges the defendant Jeffrey Kevin Mitchell with the murder of Andrew Preston at a place unknown on or about 29 April 2002. It then charges Gavin James Brown with knowingly impeding the apprehension and conviction of Mr Mitchell, such conduct being alleged to have taken place at Cheltenham on 25 July 2002. Mr Brown is alleged to have made a false statement to police about the murder of Mr Preston by Mr Mitchell on that date. It is alleged that he was present at and witnessed that murder.

Counsel for each of the accused have sought an order for separate trials. This application was made immediately after I rejected an application on behalf of Mr Mitchell to exercise my discretion to exclude a taped conversation between Mr Mitchell and his co-accused’s sister, Leanne Brown, in which it is alleged by the Crown that Mr Mitchell made admissions.

The Crown alleges that in the taped conversation, which I have declined to exercise my discretion to exclude, Mr Mitchell confesses that he is responsible for the murder of Mr Preston. It is said that he acknowledges responsibility for that murder in the conversation whilst contending that he acted in concert with Mr Brown. In that conversation it is suggested that Mr Brown was killed by injecting air into his veins. The medical evidence given at the committal suggests that that is unlikely to be the cause of death. There will be no evidence as to the precise cause of Mr Preston’s death, assuming he is dead, as no body has been discovered.

Mr Brown was interviewed by police on 24 May 2003. In that record of interview he gives an account of Mr Preston’s murder. In that account he says that Mr Mitchell stabbed Mr Preston. In the same record of interview Mr Brown speaks of his fear of Mr Mitchell. He refers to prior threats by Mr Mitchell to kill him (Question 239), to a fear that Mr Mitchell would “do the same thing” to him (Question 348), and to an assertion that Leanne Brown “knows what Jeffrey’s like too” (Question 498). A suggestion is also made by Mr Brown that Mr Mitchell had threatened to kill both Leanne Brown and Andrew Preston (Question 500). When asked why Mr Brown had not previously gone to the police he responded that he knew what…

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 Mitchell and Brown

Details

AGLC: R v Mitchell and Brown [2005] VSC 43
Case: [2005] VSC 43
Decision Date: 2 March 2005

CaseChat Overview and Summary

The Supreme Court of Victoria considered a case involving two defendants, Jeffrey Kevin Mitchell and Gavin James Brown, who were charged with separate but related offences. Mitchell was charged with murder, while Brown was charged with impeding the apprehension and conviction of Mitchell. The defendants sought separate trials, arguing that a joint trial would lead to substantial prejudice and confusion due to the differing accounts of the events in question. The court had to determine whether separate trials were necessary to ensure a fair trial for both defendants.

The legal issues the court needed to decide included whether the prejudicial effect of evidence admissible against one defendant but inadmissible against the other could be nullified by judicial direction, and whether separate trials were warranted in cases where the defendants were not charged with the same offence and were not alleged to be engaged in a common enterprise. The court examined relevant authorities and principles concerning joint trials and the prejudicial effect of evidence in such trials.

The court concluded that separate trials should be ordered due to the substantial prejudice to Mitchell that would result from a joint trial. The court noted that the two defendants were not charged with the same offence, and it was not the Crown's case that they were engaged in a common enterprise. Furthermore, the case against Brown would inevitably involve presenting to the jury prejudicial material concerning Mitchell's character and propensity, which would occur in circumstances where Mitchell faced a more serious charge. The court was also concerned that a jury might be influenced by Brown's account of events when considering Mitchell's case, despite any directions from the court.

In all the circumstances, the court decided that separate trials were necessary to ensure a fair trial for both defendants. The court considered that the prejudicial effect of the evidence that would be presented in a joint trial was not sufficiently amenable to nullification by judicial direction. Therefore, the court ordered separate trials in this matter.

Orders