R v Mulkatana

[2009] NTSC 52

R v Mulkatana [2009] NTSC 52

PARTIES:	THE QUEEN
v
MULKATANA, Grant
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:	20815593
PARTIES	THE QUEEN
v
MULKATANA, Ernest
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:	20813202
DELIVERED:	15 OCTOBER 2009
HEARING DATES:	14 – 28 JULY 2009
JUDGMENT OF:	REEVES J
CATCHWORDS:

Criminal Law – severance – whether count for murder can be joined with other counts – potential for complexities to distract the jury – possibility of compromised verdicts – costs to the public of two trials – loss of time and stress and inconvenience caused to witnesses

Criminal Code (NT), ss 8, 43BG, 156, 188, 213, 309, 316, 341(1), Part II,

Part IIAA

KRM v The Queen (2001) 206 CLR 221
R v Christou [1997] AC 117

R v Hofschuster (1993) 65 A Crim R 167

REPRESENTATION:

Counsel:

Plaintiff:	N Rogers
Defendants:	J Lewis (for Grant Mulkatana)
B Braithwaite (for Ernest Mulkatana)

Solicitors:

Plaintiff:	Office of the Director of Public Prosecutions
Defendants:	Central Australian Aboriginal Legal Aid Service
Judgment category classification:	B
Judgment ID Number:	Ree0902
Number of pages:	10
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT ALICE SPRINGS

R v Mulkatana [2009] NTSC 52

No. 20815593

BETWEEN:

THE QUEEN

Plaintiff

AND:

GRANT MULKATANA

Defendant

No. 20813202

BETWEEN:

THE QUEEN

Plaintiff

AND:

ERNEST MULKATANA

Defendant

CORAM:  REEVES J

REASONS FOR RULING ON SEVERANCE

(Delivered 15 October 2009)

Introduction

1. Ernest Mulkatana and his brother Grant Mulkatana were both charged with four counts on the one indictment. Those counts were as follows:

[4] accused, Mr Lewis, counsel for Grant Mulkatana, applied to have Counts 1

1.	That each unlawfully entered a dwelling house at night with an intention to commit an offence contrary to s 213 of the Criminal Code (NT) (‘Criminal Code’);
2.	That each assaulted Donella Hayes in circumstances of aggravation contrary to s 188 of the Criminal Code;
3.	That each assaulted Jennifer Gorey in circumstances of aggravation contrary to s 188 of the Criminal Code; and
4.	That each murdered Tarzan Loo contrary to s 156 of the Criminal Code.

1. The Crown alleged that Ernest Mulkatana was the primary offender on all four counts. Grant Mulkatana was alleged to have aided and abetted Ernest Mulkatana on the murder count (under s 43BG of the Criminal Code) and formed a common intention to prosecute an unlawful purpose with him on Counts 1 to 3 (under s 8 of the Criminal Code). He was, therefore, alleged to have been the secondary offender on all four counts.

2. All of the four counts against both accused arose out of a series of incidents that occurred over a short period of time at about 9.00 pm on 9 May 2008 at House 13 in the Hidden Valley Camp, Alice Springs.

   On 13 July 2009, just prior…