R v Mitchell (No 2) - [2024] SASC 68

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 68
Criminal: 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’),…

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 (No 2)

Details

AGLC: R v Mitchell (No 2) [2024] SASC 68
Case: [2024] SASC 68
Decision Date: 22 May 2024

CaseChat Overview and Summary

In the case of R v Mitchell (No 2), the respondent, Benjamin Mitchell, was one of five co-accused who stood trial for the alleged murder of Urim Gjabri. The prosecution argued that the co-accused had committed the murder during a drug rip at the deceased's residence. The court was tasked with deciding whether Mitchell's statements were voluntary and could be admitted as evidence against him. Mitchell claimed that he had merely driven the other accused to and from the scene of the crime and was unaware of their intentions.

The primary legal issue before the court was whether Mitchell's statements, which incriminated him and the other co-accused, were voluntary and could be admitted as evidence. The court needed to consider whether Mitchell's statements were made under duress, coercion, or in an environment that impaired his free will. Additionally, the court had to assess whether the statements were made in a context that was influenced by the accused's prior relationship with the police or any other factors that might affect the voluntariness of the statements.

The court held that Mitchell's statements were voluntary and could be admitted as evidence against him. The reasoning behind the decision was that Mitchell's statements were not made under duress or coercion and were not influenced by any factors that would impair his free will. The court found that Mitchell's statements were made in a context that was not influenced by any prior relationship with the police or any other factors that might affect the voluntariness of the statements. The court held that Mitchell's statements were voluntary and could be admitted as evidence against him.

As a result of the court's decision, Mitchell's statements were admitted as evidence against him and the other co-accused. The court's decision was based on the finding that Mitchell's statements were voluntary and could be relied upon as evidence in the trial. The court's decision was significant as it allowed the prosecution to use Mitchell's statements as evidence against him and the other co-accused in the trial for the alleged murder of Urim Gjabri.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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