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 an application for a separate trial were not in dispute. Although not argued before me, I will consider whether s 34T of the Evidence Act 1929 (SA) (‘the Evidence Act') is engaged.
The principles in this area are well-established.[2] Whether a court should order separate trials turns on whether the evidence admissible against a co‑accused is so prejudicial to the other accused that the prejudice cannot be cured by an appropriate direction to the jury; in such circumstances the accused could not obtain a fair trial.[3] The starting point is that participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together.[4] In order for the jury to discern the truth of the matter, “it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by the alleged criminal participants in the incident”.[5] When each of the accused is seeking to cast the blame on to the other, the interests of justice demand that the jury should have the whole picture presented to them and not half of it, and should see the person on whom blame is sought to be cast as well as the person seeking to cast it.[6]
[2]    See R v Collie, Kranz and Lovegrove (1991) 56 SASR 302.
[3]    Talbot v The Queen [2019] SASCFC 112 at 12 [64] per Stanley J.
[4]    R v Glover (1987) 46 SASR 310 at 312 per King CJ.
[5]    R v Glover (1987) 46 SASR 310 at 312 per King CJ.
[6]    R v Harbach (1973) 6 SASR 427 at 433 per Bray CJ, Mitchell and Sangster JJ.
It is the duty of a trial judge to make it plain to the jury what evidence is inadmissible against any of the accused and to warn them that they must not use such evidence against that accused. The law assumes that the jury is capable of understanding and willing to heed such instructions.[7]
[7] R v Gillard and Preston [2000] SASC 454 at 22 [92] per Duggan and Bleby JJ; R v Collie, Kranz and Lovegrove (1992) 56 SASR 302 at 308 per King CJ.
A difference in the evidence admissible against each accused is a factor to be considered when exercising the discretion as to whether to order separate trials. A court should order a separate trial where the prejudice suffered by the defendant cannot be cured by an appropriate direction to the jury.
In order to determine whether he is likely to suffer a positive injustice, it is necessary to consider the strength of the prosecution’s case against Mitchell and the nature of the evidence which is prejudicial to, but inadmissible against, him.
The evidence against Mitchell
It is important to consider the nature of the prosecution’s case against Mitchell as contained in the witness declarations and prosecution case statement. The prosecution will not rely on any express admissions by Mitchell.
Blue Subaru WRX (S802BXB)
Mitchell is the registered owner of a blue Subaru WRX (‘the WRX’). The car was recorded by a speed camera on the South Eastern Freeway at Mount Barker on 8 October 2018 at 10.51 pm, heading west towards the city. At 11:02 pm, the car was recorded on the South Eastern Freeway at Crafers West, heading west towards the city. At 1.19 am on 9 October 2019, the car was recorded on the South Eastern Freeway at Crafers West, travelling east in the direction of Mount Barker. The prosecution will allege that these movements are consistent with the mobile phone movements of Mr Carver (‘Carver’), Rigney and Mr Tenhoopen (‘Tenhoopen’).
The WRX was seized by police in Ipswich, Queensland. It was forensically examined and cannabis residue was found in the boot of the car.
CCTV footage
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 house
QRight, did did you go to Para Vista on the night of the home invasion where the man died?
AI’ve been to
QNo 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?
AEhm
Q….
AYep I yea I wasn’t, I wasn’t
QYou you were not there is that correct?
AYea I wasn’t there
QOkay so you were not present at the home invasion at Para Vista on the 9th?
ANo
QNo, were you anywhere near the house on the 9th?
ANo
Mitchell 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
The prosecution will rely on express admissions by Howell, Tenhoopen and Carver. Mr Apps submitted that the prosecution’s case against Mitchell is weaker than the case against the other accused. He submitted that the case against Mitchell will be strengthened by the inadmissible evidence. To put that another way, the jury will be more likely to convict Mitchell by way of extended joint criminal enterprise if it hears the stronger evidence against the other accused (which is inadmissible against Mitchell). Thus, it is important to set out the evidence against the other accused which implicates Mitchell but is inadmissible against him.
Howell
Admissions to police
On 12 December 2018, Detective Brevet Sergeant Bengel (‘Bengel’) interviewed Howell. During that interview, Howell described the sequence of events on the night of the alleged murder. He stated that Mitchell, Carver, Tenhoopen and himself travelled to Adelaide in Mitchell’s blue Subaru WRX. He said that they drove to the deceased’s street, where they met Rigney. The accused jumped over the fence of the deceased’s house. Howell described Mitchell and Tenhoopen kicking the front doors in. He said that all of the accused entered the house and that Mitchell entered last. He described Rigney attacking the deceased with the cricket bat. After the accused had stripped the cannabis from the house, they loaded it into the victim’s car before driving to another location. Howell told Tenhoopen that he did not want to go in the car with him. Tenhoopen replied that the others would kill him if he left. Mr Apps submitted that it could be inferred from that comment that Mitchell was one of the people who would “kill him” if he left.
Howell described the group (with the exception of Rigney) as “cracking off their head”. By this, he meant that the group had used drugs and were acting erratically and aggressively.
At one stage of the interview, Howell told Bengel that Mitchell told him that he “should have hit” the deceased. He described the other accused as celebrating after the drug rip.
Admissions to Cassandra Dunnicliff
Cassandra Dunnicliff (‘Dunnicliff’) is the former partner of Howell. Howell made a number of admissions to Dunnicliff. He told her that there were five people involved in the job; “Alfie, Aaron Carver, Matt Tenhoopen, Ben and himself”. He told Dunnicliff that all five of them went inside the house. He said that Tenhoopen and “Ben” joked about breaking the victim’s fingers.
Admissions to Michael Bullock
Michael Bullock (‘Bullock’) met Howell while they were in custody at Yatala Labour Prison. He stated that, in September 2019, Howell told him that Aaron Carver, Matt Tenhoopen, Ben Mitchell and Alfred Rigney were involved in the incident. He told Bullock that they all entered the house.
Tenhoopen
Admissions to Bridie McCormack
McCormack is the former partner of Tenhoopen. She stated that on 9 October 2018, Tenhoopen told her that her that he, Carver, “Ben”, “Alfie” and “Jason” were involved in the incident. He told her that all of them entered the house. He told her that “Jason” and “Alfie” “beat up the male inside the house”. Tenhoopen told her that he stole cannabis from inside the house and that they moved the cannabis into Mitchell’s car.
McCormack stated that on 22 October 2018, Tenhoopen went into greater detail about the incident. He told her that when they left the house the man was alive. He said that the “people he was with went back into the house” and that Howell “finished him off”.
Admissions to Shania Carson
As mentioned, Carson is friends with McCormack. She stated that the day after the incident, she went to Tenhoopen’s house. She said that there was cannabis “everywhere”. Tenhoopen told Carson that “Ben”, “Aaron” and himself had “gone to a house and that he (Matt) had kicked the door down”. He told her that “they entered the house and that a guy was hurt”. Carson stated that Tenhoopen said the “guy” was tied up on a chair, while the group chopped and stole cannabis plants. He said “they” hurt the man “with bats”. Tenhoopen told her that he only hit the man once. He said he hit the man across his arm because he was told do so by another member of the group. He said that Mitchell didn’t do much and that he did not hurt the man. He said Mitchell “just drove the car as he was so scared”.
Tenhoopen told Carson that they drove the deceased’s car to a nearby street. Once there, they moved the cannabis into Mitchell’s car.
Admissions to Scott Watts
Scott Watts (‘Watts’) was in custody at the Adelaide Remand Centre at the same time as Tenhoopen. Watts told police that he knew Tenhoopen from Murray Bridge. Tenhoopen told Watts that he had been charged with murder. Tenhoopen told him that “Aaron Carver”, “Alfie”, “Ben”, “Jason Howie” and himself were involved. Tenhoopen told him that they used an axe to smash a window and enter the house. Once inside, they realised that there was a man lying on the floor. “Alfie” hit the man on the head. He said that “they all had a go at watching him” but that “Ben” did not see him or watch over him. Tenhoopen said they all loaded the cannabis into the deceased’s car. Tenhoopen described the group moving through the house and stealing the cannabis crops.
Carver
Admissions over the phone
As a part of the investigation, warrants were issued over phone numbers linked to Carver, Rigney, Howell and Mitchell. Annexure MN-4 to the affidavit of Michael Newbury contains transcripts of telephone conversations between Carver and various others.
Police recorded a conversation between Carver and someone by the name of “Matty”. In the course of the conversation, Carver tells Matty that he is in Brisbane and that he is driving to Ipswich. The following exchange occurred:
M:     Have you heard any, anything um new about that shit
A:    Ah, yeah, they’re looking, looking, you know
M:     They’re looking for you?
A:    Yeah
M:     Was the cunt still kicking
A:    Nup
M:     Dead?
A:    Yep
The conversation continued:
M:     Who’s that you’re talking to
A:      Mates
M:     They come with ya?
A:    Yeah
…
A:      He’s involved, so
M:     Yeah
A:    Got a brand new Skyline – ahh Skyline, WRX
M:     What kind
A:    A new one
(Emphasis added)
Consideration
Mr Apps submitted that the strength of the prosecution’s case against the other co-accused will prevent Mitchell from having a fair trial. Mr Apps submitted that the evidence against Mitchell is scant. He submitted that there is no persuasive evidence that he entered the house, that he knew that any of the persons who must have entered the house had a propensity for violence or that he knew anyone who entered the house was armed.
The crux of the submission is that Mitchell is at risk of being found guilty of murder, on the basis of an extended joint criminal enterprise, on evidence which would not otherwise be heard by the jury determining his guilt.
The question to be answered is whether Mitchell can obtain a fair trial against the background of the inadmissible material. This question is to be determined without knowing exactly how the trial will unfold. It is to be determined on an assessment of the whole of the evidence against Mitchell and that against his co-accused.
Mitchell’s presence at the scene can be inferred from the evidence of the presence of his DNA on secateurs found inside the house. That inference is strengthened by the movements of the WRX (registered to Mitchell) at the relevant times and the presence of cannabis residue in the boot of the car. In order to prove the charged offences by joint criminal enterprise or extended joint criminal enterprise, the prosecution need not prove that Mitchell personally inflicted the fatal blow. It may suffice for the prosecution to establish that Mitchell was present at the scene. With that in mind, Mr App’s submission that the case against Mitchell is “wafer thin” is unfounded.
It is not that the cases against the co-accused differ such that a separate trial should be ordered. The accused are charged with the same offences arising from the same factual matrix. The role that each accused played in the commission of the offence will not be clearly defined. There is evidence against each accused from which their presence at the scene can be inferred.
The inadmissible evidence that Mitchell was “cracking off his head” at the time of the alleged offending, that he “joked” about breaking the deceased’s fingers, that he said he should have hit the deceased and that he celebrated after the “drug rip” is clearly prejudicial. In my view, however, the prejudicial effect of this evidence can be ameliorated by a straightforward direction to the jury that it cannot and must not use this evidence when assessing the case against Mitchell. The courts are to act on the presumption that a jury is capable of understanding and heeding such directions.
In these circumstances, I am satisfied that any prejudice faced by Mitchell can be overcome by an appropriate direction to the jury.
I turn to s 34T of the Evidence Act. It states:
Where –
(a)     2 or more defendants are charged in the same information; and
(b)     a party proposes to adduce discreditable conduct evidence; and
(c)     a defendant (the applicant) applies prior to or during the trial for a separate trial or for a charge to be severed from the information,
the court, when considering the application, must give strong weight to a real possibility that the applicant may be prejudiced by –
(d)     evidence proposed to be adduced by the prosecutor against another defendant which is not admissible against the applicant; or
(e)     evidence proposed to be adduced by another defendant which is not admissible against the applicant; or
(f)     the applicant’s inability to adduce with respect to another defendant relevant evidence that would be admissible but for the operation of s 34P.

Section 34T is engaged where a party proposes to adduce discreditable conduct evidence. The section requires a court, when considering an application for a separate trial, to give “strong weight to a real possibility that the applicant may be prejudiced by” evidence proposed to be adduced by the prosecutor against another defendant which is not admissible against the applicant.
For s 34T to be engaged there must be, on foot, an application for a separate trial. To that extent, the common law principles still apply. Section 34T provides additional protection for an accused where discreditable conduct evidence is proposed to be led. The expression “discreditable conduct”, as used in this Division of the Evidence Act, relates to evidence, in general terms, other than evidence of the offending. Obviously, evidence directed to proof of the offence itself cannot amount to discreditable conduct evidence.
Arguably, evidence that Mitchell joked about breaking the deceased’s fingers may amount to discreditable conduct. As in the case of Rigney, the situation is unusual in that the discreditable conduct evidence, if it is so, is not admissible against Mitchell.
It is arguable that s 34T is not engaged. Even if engaged, in my view the prejudice can be addressed, as in Rigney’s case, by a clear and specific direction. I dismiss the application for a separate trial.
Order
1.The application for a separate trial by Mitchell is dismissed.