R v Mitchell (No 4) - [2020] SASC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)

R v MITCHELL & ORS (No 4)
[2020] SASC 150
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, Benjamin Mitchell, 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 - whether the strength of the prosecution's case against the co-accused will prevent accused from having a fair trial- 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.
R v Gillard and Preston [2000] SASC 454; R v Glover (1987) 46 SASR 310; R v Harbach (1973) 6 SASR 427; Talbot v The Queen [2019] SASCFC 112, considered.

R v MITCHELL & ORS (No 4)
[2020] SASC 150
Criminal: Application for separate trial
LOVELL J:
Overview

The accused, Benjamin Mitchell (‘Mitchell’), 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). Mitchell is charged on the same information with four co-accused.
Mr Apps, counsel for Mitchell, applied for him to be tried separately from his co-accused, on the basis that the case against Mitchell will be made immeasurably stronger by evidence which is inadmissible against him, but admissible against the co-accused.
Alfred Rigney’s application
Mr Rigney (‘Rigney’) is one of the co-accused. Through his counsel, he also applied for a separate trial. I dismissed that application and provided reasons for doing so.[1] These reasons are to be read together with those reasons. I adopt the summary of the prosecution’s case set out in those reasons.
[1] R v Mitchell & Ors (No 2) [2020] SASC 148.
Mitchell’s application
On 7 May 2020, Mr Apps filed an application pursuant to rule 49(1) of the Supreme Court Criminal Rules 2014 (SA) seeking, among other things, that Mitchell be tried separately to the four co-accused. By that application, he seeks an order:
That he be tried separately from his co-accused, Carver, Tenhoopen, Howell, and Rigney.
Grounds
1.1The evidence against him is significantly weaker than, and different to, that admissible against the other accused to be jointly tried with him.
1.2The evidence against the co-accused contains material highly prejudicial to the Applicant Mitchell, although not admissible against him
1.3There is a real risk that the weaker Crown case against Mitchell will be made immeasurably stronger by reason of the prejudicial material.
1.4There would be a positive injustice caused to Mitchell if he were required to participate in a joint trial.
Legal principles
The common law principles in relation to…

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 4)

Details

AGLC: R v Mitchell (No 4) [2020] SASC 150
Case: [2020] SASC 150
Decision Date: 11 August 2020

CaseChat Overview and Summary

In the case of R v Mitchell (No 4), the accused, Benjamin Mitchell, is facing charges of two counts of murder. The matter was heard in the Supreme Court of South Australia, where Mitchell applied for a separate trial from his co-accused. The key legal issues the court had to address were whether the strength of the prosecution's case against the co-accused would prevent Mitchell from having a fair trial and whether any prejudicial effects of the evidence could be mitigated through jury directions.

The court examined the evidence presented, which included CCTV footage from multiple locations showing a white Holden Commodore, a WRX, and Mitchell on foot. The prosecution aimed to use this footage to suggest that the accused were conducting reconnaissance before the alleged crime. Additionally, DNA evidence from a pair of secateurs found at the crime scene indicated a likelihood of Mitchell's presence, though the defence argued that this evidence was tenuous due to the possibility of secondary transfer. Furthermore, witness statements and implied admissions made by Mitchell during interviews with Detective Ward were highlighted, with the prosecution asserting that these admissions reflected a consciousness of guilt.

After careful consideration, the court dismissed Mitchell's application for a separate trial. The court found that the strength of the prosecution's case against the co-accused did not inherently prevent Mitchell from receiving a fair trial. Moreover, the court was satisfied that any prejudicial effects of the evidence could be adequately addressed through appropriate jury directions. Consequently, Mitchell's application was dismissed, and he will proceed to trial alongside his co-accused.

Orders

Orders of the court

The accused, Benjamin Mitchell, 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 - whether the strength of the prosecution's case against the co-accused will prevent accused from having a fair trial- whether prejudicial effect of evidence can be met by directions to the jury.

Held, dismissing the application:

Background

Background to the litigation

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Evidence

Evidence Before The Court

CCTV footage was collected from four locations in close proximity to the deceased’s premises which depict a white Holden Commodore (‘the Commodore’), the WRX and the accused on foot. The prosecution will allege that the CCTV footage is indicative of Rigney and Carver conducting reconnaissance on the deceased’s premises in the Commodore, before meeting the other accused at Claudia Street. The prosecution will allege that Mitchell, Tenhoopen and Mr Howell (‘Howell’) travelled to Claudia Street in the WRX. The footage then depicts a group armed with weapons, walking towards the deceased’s premises. The footage shows the group driving away from the premises 20 minutes later in the deceased’s grey Mazda.DNA evidence A pair of secateurs was found on the floor of the entrance hallway at the deceased’s premises. They were collected and forensically examined by Dr Oliva Handt, a forensic scientist. Testing revealed a mixed DNA profile with five contributors, including the deceased. When compared with a reference sample from Mitchell, tests found a likelihood ratio of 23,000 to one in favour of the proposition that Mitchell was a contributor to that profile. This is the only DNA evidence which will be relied upon by the prosecution to place Mitchell inside the house. On voir dire, Mr Apps submitted that because of the risk of secondary transfer, the evidence to support Mitchell being inside the house is tenuous.Shania Carson Shania Carson (‘Carson’) is a friend of Bridie McCormack (‘McCormack’). She stated that on 8 October 2018, while in her company, Tenhoopen and Mitchell discussed using Mitchell’s car to steal cannabis from a house. She stated that in the evening on 8 October 2018, she saw Tenhoopen, Mitchell and Carver dressed in dark clothing.Implied admissions to Detective Ward After the alleged murder, Mitchell travelled to Queensland with Carver and Tenhoopen in the WRX. A South Australian warrant was issued for Carver’s arrest. On 19 October 2018, Carver was arrested at a hotel in Ipswich, Queensland. Mitchell was staying in the room next to Carver. Upon Carver being arrested, Detective Ward (‘Ward’) began to take a typed statement from Mitchell. In the course of that conversation, Ward activated audio[8] and then video[9] recording. Ward gave evidence on the voir dire. He explained that he began recording the conversation as he noticed a change in Mitchell’s demeanour when he began to ask questions about the murder.[8] Ex VDP2.[9] Ex VDP3. Ward questioned Mitchell as follows:[10][10] Ex VDP2 (emphasis added).Q… but I must say that I’m just, with your reaction I’m just a bit worried maybe that you might be starting to fall from a witness to maybe a person who was involved in this home invasion in Para Vista where the man died.AYea nah I I was not no.QWere you with Aaron?AI I was there to pick Aaron up at his houseQRight, did did you go to Para Vista on the night of the home invasion where the man died?AI’ve been toQNo Ben, just if I can stop you there mate, I’m asking you were you with Aaron at the home invasion in Para Vista on the 8th or 9th of October where a man was killed?AEhmQ….AYep I yea I wasn’t, I wasn’tQYou you were not there is that correct?AYea I wasn’t thereQOkay so you were not present at the home invasion at Para Vista on the 9th?ANoQNo, were you anywhere near the house on the 9th?ANoMitchell denied putting cannabis in the boot of his car. He denied ever going to Para Vista or Ingle Farm. The prosecution will allege that these statements are lies from which a consciousness of guilt can be inferred. Mitchell applied to exclude the interviews with Ward. In a separate judgment, I dismissed his application.[11][11] R v Mitchell & Ors (No 3) [2020] SASC 149.The inadmissible evidence

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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