R v Mitchell (No 2)
[2024] SASC 68
•22 May 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v MITCHELL & ORS (No 2)
[2024] SASC 68
Reasons for Ruling of the Honourable Justice McIntyre
22 May 2024
CRIMINAL LAW - EVIDENCE
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS
The defendants are charged with the offence of murder occurring on 9 October 2018. They were convicted by a jury following a trial in the Supreme Court of South Australia, however the convictions were overturned by the High Court on 8 March 2023 and the matter was remitted for retrial.
Mitchell was the only defendant who gave evidence at the first trial. The Director seeks to tender, as part of its case, the transcript of his evidence. Mitchell consents to that course of action. Rigney adopts a neutral stance. Carver and Tenhoopen object. There is no dispute that Mitchell’s evidence is admissible as against him but, only whether it is admissible as against Carver and Tenhoopen.
Held: The evidence of Mitchell given at the first trial is inadmissible as against Carver and Tenhoopen.
Joint Criminal Rules 2020 (SA) r 39; Evidence Act 1995 (NSW) s 65; Evidence Act 1929 (SA) s 34KA, referred to.
R v Mitchell & Ors (No 2) [2020] SASC 148; R v Mitchell & Ors (Supreme Court of South Australia, Lovell J, 27 September 2022).; Van de Wiel v The Queen (Unreported, Court of Criminal Appeal SA, No S5202).; R v Machin (No 2) (1997) 69 SASR 403 at 405, 411; R v Rudd (1948) 32 Cr App R 138, at 140; Taber & Styman v R [2007] NSWCCA 116; Papakosmas v The Queen (1999) 196 CLR 297 at [11] – [12]., considered.
R v MITCHELL & ORS (No 2)
[2024] SASC 68Criminal: Application RULING
McINTYRE J:
Overview
This matter is a retrial following a successful appeal against conviction by the accused. The prosecution alleges that the accused, Aaron Carver (‘Carver’), Matt Tenhoopen (‘Tenhoopen’), Benjamin Mitchell (‘Mitchell’), and Alfred Rigney (‘Rigney’), jointly committed the murder of Urim Gjabri (‘the deceased’) together with a fifth man JPH who is being tried separately. This is a ruling on two rule 39 applications; one filed on behalf of Carver[1] and the other on behalf of Tenhoopen.[2]
[1] FDN 877.
[2] FDN 888.
Mitchell was the only defendant who gave evidence at the joint trial before Lovell J (as he then was) and the jury (‘the first trial’). The Director seeks to tender, as part of its case, the transcript of Mitchell’s evidence. Mitchell consents to that course of action. Rigney adopts a neutral stance. Carver and Tenhoopen object. There is no dispute that Mitchell’s evidence is admissible as against him but, for the reasons that follow, I find that the evidence of Mitchell given at the first trial is inadmissible as against Carver and Tenhoopen.
Summary of Allegations
In a previous ruling in this matter, Lovell J described the allegations as follows: [3]
The prosecution allege that Benjamin Mitchell (‘Mitchell’), [JPH], Matt Tenhoopen (‘Tenhoopen’), Aaron Carver (‘Carver’) and Rigney jointly committed the murder of Urim Gjabri (‘the deceased’). The prosecution allege a joint enterprise or at least an extended joint enterprise.
The alleged offending arose out of a “drug rip”[4] at the deceased’s home. The deceased lived alone at 17 Carousel Street, Para Vista. The deceased tended to cannabis crops, which were being grown at the property under hydroponic conditions.
It is alleged that at approximately 12.00 am on 9 October 2018, the five co‑accused drove to the deceased’s residence in a white Holden Commodore sedan (‘the Commodore’) and a blue Subaru WRX (‘the WRX’) with the intention of stealing the cannabis plants. The accused (some, if not all) entered the premises armed with weapons (including a cricket bat, a knife and bricks obtained from a nearby building site). The accused climbed over the fence to gain access to the property. They forced open the front door and confronted the deceased. Some accused made admissions about what occurred in the house. Rigney made no admissions. The deceased was repeatedly assaulted (likely with a cricket bat) and sustained injuries to his head and body. When not guarding the deceased, the accused “stripped” the cannabis crop from inside the house. The crop consisted of 13 mature plants. It is alleged that the accused remained in the house for up to 20 minutes. At some point, the deceased’s phone, a black Apple iPhone, was taken. The accused loaded the plants into the deceased’s car, a grey Mazda 2, and fled. The accused left the deceased inside the house. The evidence suggests that the deceased was alive at this point, despite having sustained serious injuries.
It is alleged the accused then travelled in the deceased’s car, the Commodore and the WRX to Gilbert Street, Ingle Farm. The accused were witnessed (but not all identified) moving the plants from the deceased’s car into the Commodore and the WRX. A resident reported seeing a group of six to seven men in the street. On the prosecution case, the accused spent five to 10 minutes in this location before one of the accused released the handbrake on the deceased’s car, leaving it to roll out of control into the curb. The accused then left Gilbert Street in the Commodore and the WRX.
[3] R v Mitchell & Ors (No 2) [2020] SASC 148 at [3] – [6].
[4] Detective Ward described a “drug rip” as a home invasion where drug crops are being grown.
Mitchell’s evidence
The Director’s written submissions summarises Mitchell’s evidence as follows:[5]
[5] FDN 898 at [16]-[18].
16.Mr Mitchell’s evidence is contained at pp1381-1496 of the first trial transcript. The upshot of his evidence can be distilled into eight key points:
16.1 He was present but not privy to any discussion or planning about the alleged plan to do a cannabis rip-off.
16.2 In his blue WRX Subaru he drove himself, Mr Tenhoopen, Mr Carver and [JPH] to Para Vista from Murray Bridge on the night in question, following the directions that were given to him but not knowing where he was going or what was planned.
16.3 Based on about three prior trips with Mr Tenhoopen to the Tollgate at the end of Freeway, he thought Mr Tenhoopen was going to purchase or restock on methylamphetamine.
16.4 He did not get out of his vehicle at Para Vista – the others did.
16.5 He smoked some ice in his car while the others left him; he had also smoked some ice back at Mr Tenhoopen’s house and on the car ride to Adelaide, during which time the ice pipe had been passed around and the other occupants had also smoked some.
16.6 When the others (Mr Tenhoopen and [JPH] only) returned, he was given a direction to drive to and stop at another nearby location where, unbeknownst to him, cannabis was placed into the boot of his car. This occurred after he was following a car that contained Mr Carver. It was Mr Carver who directed him to pop his boot open. His three original passengers – Mr Carver, Mr Tenhoopen and [JPH] – were the ones who put the cannabis in the boot of his car.
16.7 After stopping to refuel, they drove in convoy back to Murray Bridge with the other car that contained Mr Carver. As with the trip to Adelaide, on the return trip to Murray Bridge the music was playing loudly in his car and he was not privy to any conversations about the source of the cannabis.
16.8 The car in which Mr Carver was driven on the return trip was a Holden Commodore but a different model to the one alleged to have been driven by Mr Rigney. He did not know or see Mr Rigney on the night in question.
17.In broad terms, the evidence of Mr Mitchell contains the following:
17.1 Mr Mitchell’s entire defence, which, on his account, sees him do no more than act as a taxi for Mr Tenhoopen, Mr Carver and [JPH] on the drive into the Adelaide metropolitan area, along with on the return trip for Mr Tenhoopen and [JPH]. He also witnessed the loading of cannabis into the boot of his car, which is an important aspect of the prosecution circumstantial case against all the accused.
17.2 On the prosecution case, Mr Mitchell’s evidence contains admissions about his movements and presence in the neighbourhoods of Para Vista and Ingle Farm on the night in question, another important aspect of the prosecution case.
17.3 On the prosecution case, Mr Mitchell’s evidence also contains many false and implausible aspects insofar as he denies getting out of his car and doing anything other than having been a driver for the others; the prosecution accepts what he says about his movements and travel on the night in question (ie: as it agrees with the rest of the prosecution case on that aspect), but the prosecution disputes the rest of his exculpatory account.
17.4 On the prosecution case, Mr Mitchell’s evidence also inculpates Mr Tenhoopen and Mr Carver on the topics of being in their presence before leaving Murray Bridge; driving them to what turned out to be Para Vista; driving further to what turned out to be Ingle Farm, where they packed the cannabis into the boot of his car; driving with Mr Tenhoopen back to Murray Bridge, with Mr Carver travelling in a Holden Commodore in convoy on the way there; and then witnessing the unpacking of the cannabis at Mr Carver’s house.
18.Having regard to the important circumstantial topics of evidence contained in paragraphs [17.2] to [17.4] above, the evidence of Mr Mitchell has an inculpatory status as against himself and as against the co-accused Mr Tenhoopen and Mr Carver. His evidence corroborates key aspects of the prosecution case against all three accused.
Justice Lovell ruled that evidence given by Mitchell that he, Carver, Tenhoopen and JPH smoked methylamphetamine on the drive to Adelaide by passing around an ice pipe was not admissible against his co-accused.[6] The Director concedes that this evidence ought not be lead on the retrial as against Carver and Tenhoopen but nonetheless presses the admission of the balance of Mitchell’s evidence as against Carver and Mitchell.
[6] R v Mitchell & Ors (Supreme Court of South Australia, Lovell J, 27 September 2022).
Carver’s rule 39 application seeks orders that none of the evidence given by Mitchell at the prior trial be admitted as against him on the basis that it is hearsay, and that the Director has not identified any basis upon which it could be said to be admissible as against Carver. Tenhoopen makes a similar argument seeking the exclusion of the trial evidence of Mitchell and, in the alternative, a ruling that the evidence is only admissible as against Mitchell or in the further alternative, that there be a separate trial of Mitchell.
Tenhoopen’s application is made on the following grounds:[7]
1.The prosecution seeks to use Mitchell’s evidence given in the last trial as evidence that is admissible both against him and as evidence in the case against the accused Carver and Tenhoopen on the basis that Mitchell nominated those men as being in his car on the trip to Para Vista.
2.On Monday 15th May 2024, counsel for Mitchell, wrote to the Director of Public Prosecutions and advised that should “the prosecution choose not to tender and not have Mr Mitchell's testimony from the 1st trial read, you should assume, that Mitchell will again give evidence in his own defence”.
3.Counsel for Carver, Rigney and Tenhoopen did not cross examine Mitchell at the first trial.
4.One of the reasons for the rule excluding out of court statements is that the credibility of the witness cannot be assessed directly by the trier of fact when the witness’s story is not told in court. Natural justice requires that the opponent against whom the evidence is tendered be given the opportunity to cross examine the witness.
5.To permit the Director to proceed in the manner identified in paragraph 1 above would be to deny Tenhoopen a fair trial as his counsel would not be able to cross examine Mitchell about the evidence that is proposed to be used by the Director against Tenhoopen.
[7] FDN 888.
Discussion
There is no dispute that an accused person’s prior trial evidence may be used both for and against that accused subject to appropriate directions as to the use to which such evidence may be put and the manner in which it is to be assessed. This may include directing a jury as to the inculpatory and exculpatory uses of the evidence and the implications arising from the fact that the jury has not had the opportunity of seeing the accused give that evidence. [8]
[8] Van de Wiel v The Queen (Unreported, Court of Criminal Appeal SA, No S5202); R v Machin (No 2) (1997) 69 SASR 403 at 405, 411.
It is also plain that the evidence of Mitchell, apart from the evidence about smoking methylamphetamine in the car that was previously ruled inadmissible, was admissible against his co-accused in the first trial. In R v Rudd, the English Court of Appeal said: [9]
Ever since this Court was established it has been the invariable rule to state the law in the same way – that, while a statement made in the absence of the accused person by one of his co-defendants cannot be evidence against him, if a co-defendant goes into the witness box and gives evidence in the course of a joint trial, then what he says becomes evidence for all the purposes of the case including the purpose of being evidence against his co-defendant.
[9] (1948) 32 Cr App R 138 at 140.
The Director contends that Mitchell’s evidence has the same in-court testimonial status in the retrial as against his co-accused as it did in the first trial and makes the following submissions:[10]
28.1the testimonial status of the evidence itself remains the same: it was evidence given in a courtroom, it is not evidence of an out-of-court statement; the particular of Mr Tenhoopen’s application that describes it as an out-of-court statement is incorrect as a matter of law;
28.2the fact that it is being used in a re-trial does not change or alter its testimonial status;
28.3the evidence is being used in a re-trial of the same offence in which the prosecution case against the accused has not changed – the same factual and forensic issues arise on the re-trial of the case; and
28.4each of the co-accused at the first trial had the opportunity to test or contradict Mr Mitchell’s evidence by way of cross-examination. The fact that, for whatever strategic or forensic reason, they chose not to do, is beside the point. The key point is that they each had the reasonable opportunity to cross-examine on it which means, as a matter of fairness, it cannot be said that using the evidence on this re-trial will cause them any surprise or forensic disadvantage.
[10] FDN 898 at [28.1] – [28.4].
I do not disagree with the submission, at paragraph 28.4, that each accused had the opportunity to test or contradict Mitchell’s evidence at the first trial. Mitchell was available for cross-examination. The accused made a forensic decision not to cross-examine. They are, absent any compelling argument to the contrary, bound by that decision. This does not however assist with the main thrust of the Director’s submission which relates to the status of Mitchell’s evidence in the retrial. I do not accept that the status of that evidence is the same on a retrial.
I have not been referred to any authority on this point other than a decision of the NSW Court of Criminal Appeal in Taber & Styman v R.[11]That decision concerned a retrial at which the Crown called a co-accused who gave evidence at the first trial. That co-accused refused to give evidence in the witness box. The Crown then sought to read his evidence given at the first trial relying upon s 65 of the Evidence Act 1995 (NSW) (‘NSW Act’). On appeal the decision of the trial judge to permit this was upheld. The Court of Criminal Appeal regarded the evidence of the co-accused in the first trial as hearsay in the retrial and directed its attention to the question whether that evidence was properly admitted under the statutory exceptions to the hearsay rule contained in the NSW Act, specifically s 65.
[11] [2007] NSWCCA 116.
Mitchell’s evidence at the first trial is hearsay albeit it was given at the first trial on oath in the presence of the co-accused. There is no appellate authority to permit the use of that evidence against the co-accused. The statutory exceptions to the hearsay rule contained in s 65 of the NSW Act have no equivalent in the Evidence Act 1929 (SA) (‘SA Act’) other than the scheme set out in ss 34KA – 34KD of the SA Act to admit certain out of court statements in limited circumstances. Section 34KA of the SA Act relevantly provides as follows:[12]
(1)Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and
(b) the person who made the out of court statement (the relevant person) is identified to the court's satisfaction; and
(c) any 1 of the conditions specified in subsection (2) is satisfied.
[12] Evidence Act 1929 (SA) s 34KA(1).
The present proceedings are “prescribed proceedings” for the purpose of s 34KA. Carver and Tenhoopen contend that Mitchell’s evidence is an out of court statement and that out of court statement cannot be led for the truth of it subject to certain exceptions which do not apply in these circumstances.[13] In particular, it is said that none of the conditions specified in s 34KA(2) apply to the present situation. The prosecution contends that s 34KA is irrelevant as Mitchell’s evidence is not an out of court statement. I disagree. Section 34KA defines an out of court statement as “a statement not made in oral evidence in the proceedings”. The proceedings, in context, must be the proceedings into which the out of court statement is sought to be introduced, in this matter the retrial. Mitchell’s evidence was given in the first trial and is therefore properly characterised as an out of court statement for the purpose of the retrial.
[13] Papakosmas v The Queen (1999) 196 CLR 297 at [11] – [12].
I see no basis upon which it would be proper to expand the admissibility of hearsay evidence to include the evidence of an accused at a previous trial as against a co-accused absent statutory amendment.
0
4
0