R v Mitchell (No 2) - [2020] SASC 148

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)

R v MITCHELL & ORS (No 2)
[2020] SASC 148
Reasons for Ruling of the Honourable Justice Lovell
11 August 2020
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
The accused, Alfred Rigney, is charged with two counts of murder pursuant to ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA). He is charged on a joint information with four co-accused.
Application for separate trial - where prosecution intends to lead admissions made by the co-accused which implicate the accused - whether prejudicial effect of evidence can be met by directions to the jury.
Held, dismissing the application:
1. Any prejudice faced by the accused can be met by an appropriate direction to the jury.
Evidence Act 1929 (SA) s 34T, referred to.
Nguyen v The Queen [2020] HCA 23; R v Collie, Kranz and Lovegrove (1991) 56 SASR 302; R v Gillard and Preston [2000] SASC 454; R v Glover (1987) 46 SASR 310; R v Harbach (1973) 6 SASR 427; R v Helps (2016) 126 SASR 486; R v Mitchell & Ors [2020] SASC 147; Talbot v The Queen [2019] SASCFC 112, considered.

R v MITCHELL & ORS (No 2)
[2020] SASC 148
Criminal: Application for separate trial
LOVELL J:
Overview

The accused, Alfred Rigney, pleaded not guilty to two counts of murder (one count pursuant to s 11 of the Criminal Law Consolidation Act 1935 (SA) and one count pursuant to s 12A of the same act). Mr Rigney (‘Rigney’) is charged on a joint information with four co-accused. Counsel for the accused, Mr Henchliffe QC, applied for Rigney to be tried separately from his co-accused.
It was common ground that the prosecution intend to lead admissions made by other accused which also implicate Rigney. It was submitted that statements by other accused, while admissible at the trial against those particular accused, are inadmissible against him but highly prejudicial and in these circumstances Rigney could not get a fair trial.
The alleged offending
It is necessary to set out the allegations in summary form. The prosecution allege that Benjamin Mitchell (‘Mitchell’), Jason Howell (‘Howell’), 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”[1] 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.
[1] Detective Ward described a “drug rip” as a home invasion where drug crops are being grown.
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…

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) [2020] SASC 148
Case: [2020] SASC 148
Decision Date: 11 August 2020

CaseChat Overview and Summary

Alfred Rigney and four co-accused face charges related to two murders in South Australia. Rigney applied for a separate trial, arguing that the prejudicial effect of inadmissible evidence implicating him in the murders could not be mitigated by directions to the jury. The court was required to determine whether the prejudicial effect of the inadmissible evidence could be adequately addressed through directions to the jury.

The court held that the prejudicial effect of the inadmissible evidence could be met by an appropriate direction to the jury. The judge found that while the evidence was prejudicial, it could be managed through effective jury directions. The court dismissed Rigney's application for a separate trial, concluding that the prejudicial effect of the evidence could be sufficiently addressed through the jury being directed on the proper use of such evidence.

Orders

Orders of the court

The accused, Alfred Rigney, is charged with two counts of murder pursuant to ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA). He is charged on a joint information with four co-accused.

Application for separate trial - where prosecution intends to lead admissions made by the co-accused which implicate the accused - whether prejudicial effect of evidence can be met by directions to the jury.

Held, dismissing the application:

1. Any prejudice faced by the accused can be met by an appropriate direction to the jury.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 26 October 2018, police arrested Rigney on a Parole Board Warrant at 54 Ryan Street, Moonta Bay; the residence of Tamia Sansbury. During the search, police located a black bag containing personal items belonging to Stacey Karpany (‘Karpany’), Rigney’s partner. Police located the deceased’s mobile phone, a black Apple iPhone 5 in the bag. Karpany stated that she found the phone in the Commodore, wedged between the back seats when she was cleaning it. Rigney applied to have this evidence excluded. In a separate judgment, I dismissed his application.[9][9] R v Mitchell & Ors [2020] SASC 147.The inadmissible evidence The prosecution do not rely upon any admissions made by Rigney. The prosecution in their case against Howell and Tenhoopen will rely upon admissions made by them. Their statements are inadmissible against Rigney but implicate him in the murder.Howell’s admissions The following declarations contain admissions by Howell which implicate Rigney:·Affidavit of Matthew Bengel dated 8 March 2019 (Annexure B: Record of Interview with Howell);·Affidavit of Cassandra Dunnicliff dated 13 November 2018;·Affidavit of Michael Newbury dated 5 March 2019 (Annexure MN5, being telephone intercepts); and·Affidavit of Michael Bullock dated 15 November 2019.Admissions to Detective Brevet Sergeant Bengel On 14 December 2018, Detective Brevet Sergeant Bengel (‘Bengel’) interviewed Howell. During that interview, Howell made the following admissions, which implicate Rigney in the murder:·he knew “Alfie” through Carver; he was always there when he went to pick up large quantities;·he described “Alfie” as a “large fellow, bald head, dark skin, pretty heavy set” “Aboriginal” with no facial hair;·Carver, Mitchell, Tenhoopen and Howell travelled to Adelaide in Mitchell’s blue WRX;·“Alfie” arrived in a white VZ Commodore at the building site;·Carver and “Alfie” walked down the street and came back with tools;·Carver smoked a cigarette and “Alfie” told him to put it out;·at the house, “Alfie” told Howell to jump the fence of the house, telling him he would “cave (his) … head in” if he didn’t;·“Alfie” jumped the fence while holding a cricket bat;·Mitchell and Tenhoopen kicked the wooden doors in;·as they went through the front door, Carver shined a torch into the house and said, “It’s the police get down”;·Howell saw someone in the kitchen who said, “you can have it all”;·“Alfie” screamed at him to get on the bed;·the man got on the bed and “Alfie” hit him across the face with the cricket bat;·“Alfie” hit the man on the top of his head and blood started “squirting” everywhere;·“Alfie” hit the man in the legs and then Tenhoopen had the cricket bat;·“Alfie” and Carver loaded the cannabis from the house into the victim’s car;·Howell was in the victim’s car with Tenhoopen (who was driving), “Alfie” was in his Commodore with Carver and Mitchell was driving his WRX;·they drove to another spot, where “Alfie” and Tenhoopen moved the cannabis into the WRX;·neighbours came out onto the street and Carver told one of them that they had been raided;·Howell, Mitchell and Tenhoopen left in the WRX and Carver and “Alfie” left in the white Commodore;·“Alfie” changed his car number plate;·they went to a service station and Carver disposed of the man’s phone;·“Alfie” threw the cricket bat and the gloves out of the window somewhere along the highway; and·both cars drove back to Murray Bridge.Admissions to Cassandra Dunnicliff

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On 20 December 2018, Scott Watts (‘Watts’) provided a statement to Senior Constable Cushnie. Watts was in custody in the Adelaide Remand Centre at the same time as Tenhoopen. On 3 December 2018, Watts and Tenhoopen shared a cell. Watts said he knew Tenhoopen from Murray Bridge. Tenhoopen told Watts that he was charged with murder. Tenhoopen is alleged to have made the following admissions to Watts:·“Aaron Carver”, “Alfie”, “Ben” and “Jason Howie” were involved;·Tenhoopen tried to kick the front door in but it was reinforced;·they shone torches into the house and said they were the police;·they used an axe to smash a window but there was tin blocking it;·a man was lying on the floor;·the man made a phone call but deleted the number that he had rung;·a Mercedes Benz pulled into the driveway of the house;·Carver threw the axe through the window and the vehicle drove away;·“Alfie” hit the man on the head with something;·they took all the cannabis and a wad of money from the house;·they scooped the drying cannabis into “donna covers” from the house;·they all “had a go at watching” the man;·the man was alive when they left the house;·they loaded the cannabis into the cars (including the man’s car);·“Alfie” and Carver were “yelling and screaming”;·a neighbour came outside and they yelled at him to get back inside; and·there was a gun from the job buried at the Murray Bridge golf course.Consideration When considered together and taken at its highest, the evidence against Rigney places him at the scene. It is open to infer his involvement from the evidence of his DNA on the steering wheel of the deceased’s car and his possession of the deceased’s mobile phone. Mr Henchliffe submitted that the difficulty in proceeding is that the inadmissible evidence goes further than confirming Rigney’s involvement in the offence. The inadmissible evidence provides detail of the role played by Rigney and positions him as the most violent towards the deceased; it places him at the centre of the offending. The prejudicial effect of this evidence is compounded by the “bad character” evidence which suggests that Rigney has a general propensity to partake in “drug rips”, to threaten others and to act violently. Without a separate trial, the jury will hear that Howell fears Rigney. As Mr Henchliffe submitted, the cumulative effect of the evidence is that he is “a man of the worst possible character”. The particular difficulty faced by Rigney is that he does not have standing to argue that the evidence of bad character should be excluded (as the evidence is not being admitted against him). Mr Henchliffe submitted that there is a real danger that the weaker case against Rigney will be made immeasurably stronger by the jury hearing the inadmissible evidence. Given the amount of evidence and the nature of the prejudice attached to it, Mr Henchliffe further submitted that directions will not immunise the jury against prejudicial reasoning. In his submission, it is simply not realistic to think that directions can stop what the jury will think is a natural way of thinking.