R v Thor Kristiansen - [2008] ACTSC 110

The application be dismissed.

On 21 February 2008 the accused was committed for trial on charges alleging eight offences, one of aggravated burglary under s 312 of the Criminal Code 2002 (ACT) (“the Criminal Code”) four of intentionally and unlawfully using a rifle that was likely to endanger life under s 27(3)(c) of the Crimes Act 1900 (ACT) (“the Crimes Act”), and three of common assault under s 26 of the Crimes Act.

Six of the charges were in respect of offences said to have been committed at Curtin in the Australian Capital Territory late in the day on 6 December 2007.

The other two charges were in respect of offences said to have been committed at Narrabundah in the Australian Capital Territory early in the day on 7 December 2007.

A further charge of common assault has been preferred arising out of the events on 6 December 2007.

Narrabundah is said to be about five minutes by car removed from Curtin. The Narrabundah offences were said to have been committed about two and three quarter hours after the alleged Curtin offences.

Rule 4731 of the Court Procedures Rules 2006 (ACT) (“the Rules”) makes provision for the setting of an, “appearance date” where an accused has been committed for trial.

Under r 4733 the court may on the appearance date direct the director of public prosecutions to file in the court -

(i) a draft indictment; and
(ii) a case statement; and
(iii) a list of proposed prosecution witnesses

The court may also direct the director of public prosecutions to give a copy of the draft indictment, case statement and list of proposed prosecution witnesses to the accused person, or his or her solicitor.

On 6 March 2008, the appearance date in this matter, Refshauge J directed the prosecution to lodge and serve a draft indictment and case statement.

Under cover of an email dated 14 May 2008 the Director of Public Prosecutions for the Australian Capital Territory forwarded a draft indictment, a case statement and a questionnaire to the Court’s Registry. On 19 May 2008 those documents were formally marked as having been, “lodged”, in the Court.

The indictment was dated 14 May 2008 and recorded nine counts as follows:-

THE DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT on the 6^th day of December 2007 at Canberra in the Australian Capital Territory THOR KRISTIANSEN remained in a building, namely, Unit 3, 12 Martin Street, Curtin, as a trespasser with intent to commit an offence that involved threatening to cause harm to a person in the building, and at the time of doing so had an offensive weapon, namely a rifle.
SECOND COUNT
AND FURTHER THAT on the 6^th day of December 2007 at Canberra aforesaid THOR KRISTIANSEN intentionally and unlawfully used against another person, namely Justin Goulder, an offensive weapon, namely a rifle, that was likely to endanger human life or cause a person grievous bodily harm.
THIRD COUNT
AND IN THE ALTERNATIVE TO COUNT TWO THAT on the sixth day of December 2007 at Canberra aforesaid THOR KRISTIANSEN assaulted Justin Goulder.
FOURTH COUNT
AND FURTHER THAT on the 6th day of December 2007 at Canberra aforesaid THOR KRISTIANSEN intentionally and unlawfully used against another person, namely Alison Whalley, an offensive weapon, namely a rifle, that was likely to endanger human life or cause a person grievous bodily harm.
FIFTH COUNT
AND IN THE ALTERNATIVE TO COUNT FOUR THAT on the 6^th day of December 2007 at Canberra aforesaid THOR KRISTIANSEN assaulted Alison Whalley.
SIXTH COUNT
AND FURTHER THAT on the 6^th day of December 2007 at Canberra aforesaid THOR KRISTIANSEN intentionally and unlawfully used against another person, namely Patrick Banks, an offensive weapon, namely a rifle, that was likely to endanger human life or cause a person grievous bodily harm.
SEVENTH COUNT
AND IN THE ALTERNATIVE TO COUNT SIX THAT on the 6^th day of December 2007 at Canberra aforesaid THOR KRISTIANSEN assaulted Patrick Banks.
EIGHTH COUNT
AND FURTHER THAT on the 7^th day of December 2007 at Canberra aforesaid THOR KRISTIANSEN intentionally and unlawfully used against another person, namely Michael Vella, and offensive weapon, namely a rifle, that was likely to endanger human life or cause a person grievous bodily harm.
NINETH COUNT
AND IN THE ALTERNATIVE TO COUNT EIGHT THAT on the 7^th day of December 2007 at Canberra aforesaid THOR KRISTIANSEN assaulted Michael Vella.

The present application is brought under s 264(2) of the Crimes Act. It relevantly provides:

264(2) If, before trial ... the court is of the opinion that a person accused may be prejudiced or embarrassed in his or her defence because of being charged with more than 1 offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for 1 or more offences charged in an indictment, the court may order a separate trial of a count or counts of the indictment

On 1 September 2008 the accused filed an application in respect of the draft indictment seeking orders as follows:

(1)That the indictment in these matters dated 14 May 08 be severed, into two separate indictments.
(2) That the Crown be prevented from adducing coincidence evidence.
(3) Any other orders that the Court considers appropriate.

The application for relief in accordance with paragraph (2) has not been pressed. In R v Ivan Stephen Djerke [2008] ACTSC 41, Gyles J held that an application which was similar to that contemplated by paragraph (2) in the present application, which was itself dependent upon the application of, in that case, the Evidence Act 1971 (ACT), could only be made at and for the purposes of a trial.

His Honour observed that a trial only begins after arraignment and opined that an application in respect of a matter of evidence under s 65 of the Evidence Act1971 (ACT) should be brought after arraignment but before the jury is empanelled.

The application in the present case was supported by an affidavit affirmed by the solicitor for the accused on 1 September 2008. The only other evidence on the hearing of the application was the “Crown’s Response” filed 15 September 2008, (being in the nature of a submission) to which there were some seven attachments (collectively Exhibit 1 on the Application).

The severance which the accused seeks is that the seven counts in relation to the alleged Curtin offences be the subject of a separate trial from the two counts in relation to the alleged Narrabundah offences.

For present purposes all that needs be said about the case which the Crown proposes to advance is that on the evening of 6 December 2007 two males and a female were together in an apartment of one of those males at 12 Martin Street, Curtin at about 9.45 pm when the accused, who lived in an apartment on the level above, entered the apartment where the three were gathered, in the company of another male. It is said that the two new arrivals entered the apartment without knocking and proceeded to sit down with the others.

The accused is said to have been known to all three of those who were already there.

The accused is said to have brought a rifle with him, which he proceeded to place on the floor. When he was asked to take his rifle and leave the accused is said to have refused whereupon he pointed the rifle in turn at one of the males, then the female and then at the other male in whose apartment they were gathered.

It is said that the accused pulled the trigger but did so at a time when the safety catch was on.

Later the accused is said to have taken the bolt from the rifle and placed it on the coffee table. Thereafter the accused put the bolt back into the rifle. As the accused stood up with the rifle, it is said that it discharged with the consequence that a bullet was fired into the floor, a short distance from the female’s left foot.

After the accused left the Curtin premises he is said to have driven through Narrabundah where he stopped the white car that he was driving beside another car which was parked, the relevant driver being engaged in a conversation on a mobile telephone. The accused is said to have moved his car and parked it a short distance in front of the other car.

The driver of the parked vehicle and the accused were said to have been known to one another. Thereupon the accused is said to have alighted from his car, opened his boot, removed a rifle and aimed it at the driver of the other vehicle through the windscreen.

The driver proceeded to put his car in reverse and then move forwards at which stage he is said to have collided with the accused’s car in the course of driving off.

There may be some argument as to the rifle which was said to have been used in the two incidents. It is said of the rifle in each case that it had a single barrel and a wooden butt.

The Crown readily concedes that it would be prejudicial to the accused’s defence were he to be charged with the Narrabundah offences in the same indictment as the Curtin offences and vice versa. However, the Crown submits that separate trials ought not to be ordered in respect of the Curtin counts and the Narrabundah counts.

Ms Saunders, for the accused, submits that there are a number of points of difference between the two incidents;

(a)This is not a case, she submits, of a continuing course of criminal conduct.
(b)In the Curtin incident the accused was in the company of another male and there were three victims whereas in the Narrabundah incident it was simply a matter involving the accused and the driver of the parked vehicle (The Crown case is that there were two people in the accused’s car, i.e. the accused and one other)
(c)The discharge of the firearm which occurred at Curtin was inadvertent.
(d)In the Curtin incident the accused’s conduct was frightening but not a serious threat (the safety catch being on when the rifle was pointed) whereas in the Narrabundah incident it was threatening.
(e)There was disagreement as to the length of the rifle’s barrel which was evident from transcriptions of “OOO” emergency calls placed by the occupier of the Curtin unit and by the driver of the car involved in the Narrabundah incident.

Ms Saunders alleged that the two incidents lacked the necessary “striking similarity” (see per Gibbs CJ in Sutton v The Queen (1984) 152 CLR 528 at 535).

The Crown submits that evidence should be “cross-admissible”. The Crown draws attention to:

(a)the close period between the two incidents;
(b)the alleged use of a rifle in each incident, and the pointing of same;
(c)the features of the rifle in each case which supported the proposition that it was the same rifle used in each incident;
(d)the identification of the accused as the wrongdoer in the Narrabundah incident by virtue of the collision damage to the two cars and the association of the accused’s car with the accused;
(e)the lack of any provocation provided by the victims of the two incidents.

The Crown maintains that it will be open to it to adduce coincidence evidence, and that the probative value of the coincidence evidence supports the non-severance of the indictment.

Section 98 of The Evidence Act 1995 (Cth) (“the Evidence Act”) sets out “The coincidence rule”. Relevantly, it provides:

98(1) Evidence that 2 or more related events [events that are substantially and relevantly similar, and, which occurred in circumstances which are substantially similar (see s 98(2))] occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act ... if:
…
(b)the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Under s 101(2) of the Evidence Act coincidence evidence about a defendant cannot be used against the defendant unless the probative value of the evidence (i.e. the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (see s 3(1)) substantially outweighs any prejudicial effect it may have on the defendant.

The Evidence Act codifies the relevant law on coincidence evidence (see R v Ellis (2003) 58 NSWLR 700 at [83]). As Spigelman CJ said in his leading judgment at [84]:

84 Of particular importance ... is the formulation adopted in s 101(2) requiring the probative value of tendency or coincidence evidence to “substantially outweigh” its prejudicial effect. The use of the word “substantially” is a legislative formulation, not derived from prior case law. ...

In KRM v The Queen (2001) 206 CLR 221 McHugh J said at [38] in respect of the ordering of separate trials:

38 ... Ordinarily, ... the court should order separate trials where there are different victims, where the evidence in respect of one victim is not relevant to the charge in respect of the other victims and where the joinder of charges creates a risk of prejudice. But in some cases, an application for the trial of separate counts may be refused on the ground that the convenience of trying the charges together far outweighs any risk of prejudice ...
(Footnote omitted)

In my opinion this is not a case where separate trials would be appropriate. There is a sufficient nexus between the Curtin counts and the Narrabundah counts to warrant their consideration at a trial on the one indictment. The offences are so connected that in all probability evidence on the trial of the Curtin charges would be admissible on the trial of the Narrabundah charges and vice versa.

In my opinion the evidence in relation to each of the two indictments is likely to have significant probative value in relation to the proof of the facts alleged in relation to the other.

Furthermore the probative value of the coincidence evidence is likely to substantially outweigh any prejudicial effect it may have on the accused.

Accordingly, I would dismiss the application for separate trials of the counts in the indictment.

I order that the application filed 1 September 2008 be dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Graham.
Associate:
Date: 21 October 2008

Counsel for the Crown:  Mr M Thomas
Solicitor for the Crown:  Director of Public Prosecutions for the ACT
Counsel for the defendant:  Ms J Saunders
Solicitors for the defendant:  Perkins and Saunders
Date of hearing:  22 September 2008
Date of judgment:  22 September 2008

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R v Thor Kristiansen [2008] ACTSC 110

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