R v Visser and Falanga No 1
[2013] VSC 618
•21 November 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0021 of 2013
No: 0004 of 2011
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| JAN VISSER AND CARMELO FALANGA | Defendants |
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RULING NO 1
JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 November 2013 | |
DATE OF RULING: | 21 November 2013 | |
CASE MAY BE CITED AS: | R v Visser & Falanga No 1 | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 618 | |
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Application by Both accused for separate trials.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Young | Commonwealth Director of Public Prosecutions |
| For the Defendant Visser | Jan Visser - Self represented | |
| For the Defendant Falanga | Mr S Bayles | Robert Stary Lawyers |
HER HONOUR:
It is necessary to provide a very brief background in respect of the trial of the two accused men, which requires an explanation of the other persons who have previously been convicted of this conspiracy charge. In 2011, Pasquale Barbaro and Saverio Zirilli pleaded guilty to conspiring, between 13 June 2007 and 3 October 2007, with each other and named other persons to traffick a border controlled drug, MDMA, in a commercial quantity, together with other offences. They were sentenced in early 2012. In a trial commencing 27 February and concluding on 24 May 2012, Rob Karam, John Higgs, Salvatore Agresta and Pasquale Sergi all pleaded not guilty to a charge of conspiracy to possess a border controlled drug, MDMA, in a commercial quantity, and were convicted by a jury. They were sentenced to varying terms of imprisonment on 30 April 2013.
The conspiracy charge against each of those prisoners included each of those named conspirators, together with the names of Carmelo Falanga and Jan Visser, as alleged co-conspirators. Neither Carmelo Falanga nor Jan Visser were present in the State of Victoria during the trial and they have been extradited subsequently to Victoria, Falanga from South Australia and Visser from NSW, to face the charge of a conspiracy to possess a border controlled drug, namely MDMA, in a commercial quantity between those same dates.
A very brief summary of the offence of which the co-conspirators have been convicted, and the two alleged offenders stand accused, is that on 26 June 2007 a container arrived in Melbourne aboard MV Monica which had been sent from Italy, addressed to a company known as Transglobal. It was unloaded on 28 June and selected for examination by Customs. It was discovered that the catering size tins, which purported to contain tomatoes, actually contained one of three types of goods. A quite small amount of tins contained tomatoes, a large number of tins contained MDMA pills and the remainder contained rocks designed to balance the overall weight of the shipment in the container. The total number of MDMA tablets seized were 15,193,798 with a weight of 4.4 tonnes of which the pure MDMA comprised 1,468,755.3 grams, an approximate purity of 32%. A commercial quantity of MDMA is 500 grams and the containers, accordingly, contained 2900 times the minimum statutory commercial quantity. This was the subject of the conspiracy to possess; that is, those contents of that container. The evidence primarily consisted of intercepted telephone recordings, listening devices located in different hotels, physical observations either with or without photographic support and text messages. All of that material was played to the jury, and the Crown relied upon inferential reasoning.
In the trial and plea hearings, it was submitted by the Crown that Barbaro and allegedly Falanga were the persons at the head of the conspiracy, Zirilli slightly further down the hierarchy, beneath them Karam and Higgs, and further down Agresta, Sergi and Visser, although the position within the hierarchy of Visser has not been articulated precisely, as it was unnecessary at that time, it not being alleged at the time of sentence that he was a person of real significance in the hierarchy of this conspiracy.
There have been numerous delays in this matter in respect of the two remaining co‑accused Visser and Falanga, including problems relating to extradition delays, particularly in respect of Falanga, caused as a result of human and administrative errors, and finally the potential duration of the case preventing it commencing late last year.
Falanga is represented by counsel, being Mr Stuart Bayles, the Crown is represented by Mr Brent Young, and Visser was originally represented by Mr J Kelly, instructed by Leanne Warren & Associates. Mr Visser terminated the instructions of Mr Kelly as well as those of his instructing solicitor and has chosen to represent himself. He states that he has lost faith in those representing him and feels he will be better served by appearing for himself. This is clearly set out by the accused Visser in his submissions wherein he outlines the course of his representation and/or lack thereof. On 5 March 2013, the accused was strongly advised to engage the services of a lawyer[1] and he continues in the submission[2]
[1]Transcript 5 March 2013 page 17: ‘I just say to you very strongly, get your lawyers involved in this now’.
[2]Submission 4 November headed “Outline of submissions (Application for the Honourable Justice King to withdraw from presiding over this matter for apprehension of bias) page 26ff.
After the directions hearing on 5 March 2013, the defendant managed to obtain legal representation in this matter and so was represented by counsel in the following appearances. On 5 August 2013, being the date the trial had been listed to commence it was adjourned upon an application by the Crown the co-accused Falanga had not yet been transferred to Victoria.
However, due to those legal practitioners continually failing to follow reasonable instructions, being unavailable to the defendant, as they were involved in other trials in rural Victoria and as a consequence of taking on that work when they should have been preparing for this matter, inter alia, these lawyers were not fully prepared and did not know the material for this matter and on at least one occasion, 11 September 2013, the defendant’s former counsel misled the Court as is contained at line 22 on page 1 of the transcript of the directions hearing on that date;
Mr. Kelly:And I was wanting to explain why I wasn’t in court on Friday, although I’m sure my instructor would convey to you why it was that I wasn’t able to attend.
King J:No, I don’t think she actually did. It’s all right, a family matter, yes, sorry
Mr Kelly: As your Honour pleases
The real reason Mr. Kelly of counsel was not in court on Friday is that he was in another trial in rural Victoria, although no attempt was made to amend the record to reflect same.
This situation, understandably resulted in the defendant loosing (sic) all confidence in those legal practitioners who, as was glaring obvious, were not acting in the defendant’s best interest. After discussion between the defendant and those practitioners they expressed the mutual belief that too much water had passed beneath the bridge and therefore they could no longer ethically represent the defendant so withdrew from this matter.
The applicant in an attempt to obviate the need for the trial to be further adjourned because of the delay that would be caused by, inter alia, the bureaucratic red-tape preventing a person at the Metropolitan Remand Centre (“MRC”) the ability to exercise their right, pursuant to s 25(2)(b) of the Charter, to choose new legal representation by denying access to the Yellow Pages or similar directories. And even if the list of lawyers on the Legal Aid indictable panel was provided there was approximately 32 other people including the co-accused charged as a result of the same AFP operation most of whom used legal practitioners on the Legal Aid panel so even after choosing another legal practitioner it is possible that practitioner may be conflicted. Then the brief and funds would need to be transferred including the additional funds necessary for preparation. And then there is the time needed to prepare, have conferences, etc. Therefore, the defendant decided to represent himself.
The defendant hoped by exercising the right to defend himself it would avoid the delay that would inevitably be caused by the above and expedite the trial being conducted, so the defendant exercised his right, pursuant to section 25(2)(d) of the Charter to be tried in person. A right that is “fundamental”, “the law respects” and “should not be interfered with” as pointed out by this Court in Tomasevic, which is cited above.
The court has advised Visser on numerous occasions to seek other representation if he was dissatisfied with Mr Bayles or his instructing solicitor, but ultimately as demonstrated in the above passage, he has declined any legal assistance and has indicated to the court that he is determined to represent himself in these proceedings.
That of course is his right, but in light of the seriousness of the charges that he faces and his lack of legal knowledge, legal representation is a matter that the Court pursues with him constantly. However, as indicated, despite a grant of aid being available to him, he strongly refuses to utilise the services of a qualified lawyer, and as a result certain obligations fall upon both the Crown and the judge. Those obligations and the principles underlying them are well established and it is unnecessary to enumerate them.[3] However, there does appear to be an unfortunate misapprehension on the part of the accused Visser as to what are the obligations of the judge in relation to Visser’s conduct of the case.[4]
[3]Dietrich v R (1992) 177 CLR 292; MacPherson v R (1981) 147 CLR 512.
[4]Transcript 6 November 2013 pages 1 ff.
An application has been made for me to disqualify myself; the first basis being that I have not given the accused, Visser, any guidance or advice in relation to how he should run the trial. The court has explained to him, that the judge is not required to advise him of particular courses that he should take, nor is the court required to prepare his defence for him. The obligation of the judge is to ensure that the trial runs fairly and according to law and to make sure that Mr Visser understands what is occurring in court, what his options are in respect of different matters such as cross‑examination of witnesses, admissibility of evidence, an election to give evidence or not, defences that potentially may be run and matters of a similar kind.
It is not the position of the judge to advise which of the many options available to him he should take, for that falls into the role of legal adviser. Unfortunately, Visser appears to be of the view that it is the function of the judge to give guidance of that nature and, equally, assistance as to which are the better choices tactically and legally or which of the many options would be the preferable or most appropriate choice when he requires it. That is not my role, nor the role of any court in respect of an unrepresented accused. I will deal with those matters subsequently in my ruling on the application to disqualify myself.
In relation to this trial both counsel for Mr Falanga and the accused man, Visser, have sought that they be tried separately from the other.
On behalf of Mr Falanga, the application for a separate trial is a two-fold basis, firstly upon material tendered by Visser in his Separate Trial’s Application, which included a foreshadowing of what he referred to as a ‘cut throat defence’, together with the fact that Mr Visser is unrepresented. Those being the two bases upon which, in combination, the defence rely as founding a necessity for a separate trial of the two accused.
The passages relied upon by counsel for Falanga in the outline of submissions of Visser are contained in a document headed, ‘Outline of Submissions’, 18 September 2013 and at approximately point 7 on page 3 it states:
Similarly to R v Jones and Waghorn, VISSER intends to lead evidence that FALANGA and the other co-conspirators were guilty of the conspiracy as charged and perhaps additional material that will shows (sic) them to be persons of bad character. Whilst such evidence of itself does not justify a separate trial R v Gibb and McKenzie [1983] 2 VR 155 at 163; 7 A Crim R 385 at 394 (CCA); R v Mathers (1988) 38 A Crim R 423 (Vic) (CCA) Question of Law Reserved (No3) of 1997 citation 1998 70 South Australian State Reports 555; 100 A Crim R 464 (CCA).
Counsel also relied upon the last paragraph on page 7 of that same submission of Visser which reads:
The evidence the Crown seeks to call to prove the conspiracy and FALANGA’S role is, in the main, conceded by Visser. While that in its (sic) self may not technically be described as a classic ‘cut throat’ defence VISSER will not be disputing the Crown assertion that FALANGA was involved in a ‘central role’ and will refer to that as a fact in his defence. VISSER may also introduce the bad character of the co-conspirators including the co-accused FALANGA whose bad character is relevant in support of the defence assertion the co-accused are people who would lie to and use other people for their own gain and would do so without conscience and a complete disregard to the other peoples’ welfare.
The nature of this is defence, which inter alia concedes VISSER was present with co-conspirators albeit for unrelated matters, has a risk the jury will reach an impermissible finding of guilt by association. To avoid such an outcome VISSER’S trial required tailored judicial directions not applicable to FALANGA and vice versa that in its self may add further confusion and is one of many glaring examples of the difficulties of a joint trial which can be obviated by separate trials.
On behalf of Falanga, counsel conceded that most of the presentation of the Crown case in this matter would be rarely contested as to factual content. Counsel submitted, as there has been no record of interview with Visser in which any comment was made, the defence have no indication as to what the evidence of bad character referred to in his submissions is, or may be, and there has been no indication of the nature of his assertions or in what form they may be led at trial. It was agreed by counsel that Falanga does not have any substantial prior convictions and at worst has some very minor unrelated petty matters from 20 or 30 years ago and one of a more recent time for the offence of failing to answer a question at a compulsory hearing for which he was fined $6,000. Counsel conceded it would be difficult to establish the bad character of Falanga through the use of prior convictions.
The major area of real concern expressed by counsel was to be in a trial in which the co-accused is unrepresented and, accordingly, not bound to conduct themselves ethically, professionally, responsibly, with any obligation or duty to the court or to the law, no understanding of the rules of evidence and admissibility, resulting in continuing unpredictability and uncertainty.
Counsel has conceded that to a large degree his application is anticipatory.[5] As an example of his concern, Mr Bayles highlighted a situation of the issue of Mr Falanga perhaps choosing to give evidence in the trial and being cross‑examined by the co‑accused Visser. The evidence of Falanga would be evidence that a jury could consider in his case, but he submitted it would be hard for a jury to separate the questions being asked by one accused and the answers being given by another co-accused, into evidence and non-evidence. The basis of this application ultimately comes down to the concern as expressed by Mr Bayles that Falanga would be effectively ‘fighting a battle on two fronts’.[6]
[5]Page 16, transcript 6 November 2013.
[6]Page 19, transcript 6 November 2013.
Whilst counsel conceded that it is not an exceptional or remarkable situation for an accused in a joint trial to be fighting a battle on two fronts, he submitted it does become remarkable where, one of those fronts that he is fighting is that of an unrepresented co-accused who cannot be taken to be bound or fettered by the duties and obligations of all lawyers who appear before a court. Counsel further expressed concern that as a result of the nature of this trial, which is one of the jury drawing inferences and conclusions from recordings, observations, text messages and behaviour of different members of the conspiracy, there will be limited opportunity for Visser’s defence strategy to become apparent until quite late in the proceedings and, accordingly, it may be only at that stage that the problems relating to his cut-throat defence, as he described it, may become apparent. The consequence of the problems becoming apparent at that late stage is that, if the necessity then arises for a separate trial to ensure that Falanga and Visser both receive a fair trial, that would result in significant costs to the community and delays being incurred. Such factors may cause a court to hesitate and ultimately refuse the grant of a separate trial, due to those factors such as waste of public moneys, jury time and overall delay, that has already occurred as a result of running the trial jointly.
It was rightly conceded by counsel, together with Visser in his submissions, that in a trial of this nature there is a presumption that all co-offenders should be tried jointly and that is particularly so in a conspiracy trial.
On behalf of Visser, submissions were placed before the court to which I have earlier referred. Under the heading of, ‘Separate Trials’, firstly, Visser relied upon the fact that being jointly trialled with Falanga is unfair on the basis that all the co‑conspirators, with the exception of himself, were involved in the crime and the fact that Visser is unrepresented and appearing for himself makes the unfairness impossible to be overcome except by the granting of separate trials.
Before I move on to consider any of the other matters, it needs to be stated unequivocally that if an accused person, who is able to be represented, chooses to appear for himself and refuses the advantages and services of a legal practitioner, cannot then use that refusal as a basis for obtaining a separate trial because he is unrepresented. It defies logic and credibility and would make a mockery of the legal system.
Visser declined to speak to the submissions at any length, accordingly this ruling will refer to the areas and submissions as they appear to be argued in that submission, and deal with those arguments.
On page 1 of the submission of 18 September 2013 headed Separate Trials, Visser refers to the fact that where more than one accused is charged on indictment, application may be made for them to be tried separately, an undoubtedly correct proposition.
Visser then refers to a number of cases[7] and relied strongly upon the case of R v Jones and Waghorn[8]. In that case, Jones had informed the police he was terrified of Waghorn’s disposition to violence and the fact that he was a professional criminal. The charge was a joint charge of murder and the Court of Appeal held that the prejudice was too great and quashed the conviction and ordered a re-trial for Jones, and Visser relied upon the judgments of Smith J and Crockett J. Crockett J at 164 stated:
What emerges from this discussion is, I think, that, if there is not only substantial prejudice to an accused arising from a joint trial but that prejudice is of a kind not really amenable to nullification by judicial direction, then the claim for a separate trial is very much stronger.
[7]Page 3 of submissions.
[8](1991) 55 A Crim R 159.
Crockett J also cautioned that it did not follow that an application for severance in such a circumstance as outlined in Jones and Waghorn will automatically succeed and the court dealt with reasons why trials of co-accused should in fact be heard jointly rather than separately.
Visser then referred to the bad character of an accused being led in evidence by a co‑accused and also relied on a decision of R v Su[9] in which two men were charged with kidnapping. One of the accused, Goerlitz, proposed to introduce evidence that Su was on the run from arrest on drugs charges. Such evidence could not be led by the prosecution but it tended to explain away recorded remarks by Goerlitz. Su applied for a separate trial, which was granted. No such situation exists in this case, and I fail to see the relevance of this particular authority. I have already referred to that matter and currently I am unaware of what evidence of bad character the accused man could or would lead.
[9](2003) 142 A Crim R 379 (Vic), Coldrey J.
The next heading on page 4 of the submission is, ‘Where the Evidence Against each Accused is Significantly Different’, and referred to and relied upon R v Darby (1982) 148 CLR 668; R v Gibb and McKenzie [1983] 2 VR 155 at 171; (1982) 7 A Crim R 385 at 401; and Lui Mei-Lin v R [1989] AC 288; [1989] 1 All ER 359; (1989) 88 Cr App Rep 296 (Privy Council). What must be noted in this case is that the evidence that would be led in respect of each man is virtually identical in that the prosecution must establish, firstly, that there was a conspiracy on foot, that it was a conspiracy to do the very thing charged, that each of the named persons, or at least some of the named persons, were involved in that conspiracy, further establish that the accused man was involved in that conspiracy and no other. Those requirements mean that the evidence admissible in the trial would be admissible as and against each of the individuals and would be led in each of the trials. There is also some evidence that would go particularly to the issue of the involvement of the individual accused in the conspiracy, if that conspiracy be established. That evidence in respect of each of the accused men would be different but equally would be admissible as to the existence of the conspiracy itself. There is no doubt that one conspirator can be tried separately from other conspirators but this is not a case in which the evidence admissible against one is so significantly different to the evidence admissible against the other co-accused that it calls for a severance of the indictment as is argued by Visser. At page 4 of the submissions at the conclusion of the references to the evidence against each accused being significantly different, Visser submits that the solution is separate trials.
Visser further relied on the decision in Re O’Boyle (1991) 92 Cr App Rep 202, where O’Boyle’s co-accused cross‑examined O’Boyle on the confession of O’Boyle which had been excluded by the trial judge. The Court of Appeal quite rightly granted a re‑trial, as in their view it was inevitable that this situation would arise and a re‑trial was granted for the basis of a separate trial which should have been granted earlier. There is nothing of a similar nature to which I have been referred or am aware of from my extensive readings in this matter. Visser has not made a record of interview, other than a no comment record of interview, neither has Falanga, and there is no confessional document or cross examination waiting to be used which would cause a major prejudice or unfairness to my knowledge. Accordingly, I am unable to fathom the relevance of this particular submission or argument.
The next heading is ‘Risk of Guilt by Association’, here Visser has relied upon R v Chami (2002) 128 A Crim R 428, a decision of the New South Wales Court of Criminal Appeal, where five men were charged on one indictment in relation to five rapes, and attempted to pervert the course of justice. The indictment itself contained 19 counts. The accused was alleged to be involved only in the first two incidents which amounted to two counts on the indictment. Evidence on the other 17 counts relating to the other rapes was inadmissible. All the accused were from a similar ethnic group, and the crimes were horrific in the extreme. There is no such circumstance arising in this case. There is one charge on the indictment, that of conspiracy in which all parties are alleged to be co-conspirators. The issue of guilt by association in light of the directions to be given to a jury about separate consideration of charges in relation to each accused is entirely speculative and would mean that the jury would be disregarding the instructions given by the Judge, not a presumption I am prepared to act upon.
The next heading is, ‘Cut Throat Defence’, and states where each accused blames the other, separate trials ordinarily should not be granted; R v Varley (1982) 2 All ER 519; 75 Crim App Rep 242, cited in R v Gibb and McKenzie [1983] 2 VR 155; 7 A Crim R 385 at 163; 393, and relied upon further a decision of R v Ignjatic (1993) 68 A Crim R 333 per Hunt CJ at Common Law at page 339:
It may be said that since the decisions in Guimond and Darby, the mere existence of cut throat defences is no longer a basis for supporting a joint trial… but that does not mean that the mere existence of cut throat defence has become a basis for rejecting a joint trial. Obviously there will be cases in which cut throat defences are raised where it may be appropriate to order separate trials but they would not in my view arise frequently.
Visser also relied on Webb & Hay v R (1994) 1 81 CLR 41, which supports that proposition where Toohey J stated:
I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others.
These arguments of course do not support any application for a separate trial but support the trial being heard as a joint trial. Here there is not, to my knowledge, a cut throat defence envisaged by either accused, it is equally hard to envisage a cut throat defence that could be argued. Visser has stated that he may call Barbaro and ask him if he was conspiring with Falanga to import or traffick these goods or similar, but that is highly speculative as the accused’s defence, as he has stated it to the court, is that he was not a party to the conspiracy, merely a commentator. The others were or may have been, but he was not a party or if he had been he had withdrawn from the conspiracy, or that he had another purpose to being in Melbourne and having dealings with Barbaro, that whilst involving some other minor criminality did not involve agreement to be a participant in this agreement to possess.
The next item at page 6 of the submission is headed, ‘Some Difficulties of a Joint Trial’, and reference is made to Bannon’s case[10]. Visser then referred to a number of cases from which he submitted the relevant principles to be extracted were:
1.Where the evidence against an applicant for separate trial is significantly weaker than and different to that admissible evidence against another or the other accused to be jointly tried with him; and
2.Where the evidence against those other accused contains material highly prejudicial to the applicant, although not admissible against him; and
3.Where there is a real risk that the weaker Crown case against the applicant would be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.
I agree with those statements of principle. That however, as has already been indicated, is not the factual situation in this case.
[10]Bannon v R (1995) 185 CLR 1.
Visser also referred to the fact that a judge’s ruling refusing separate trials may be correct at the time that it is made but, during the course of trial as a result of what occurs during the running of the trial, that situation may alter. He submitted at page 7 that an application for separate trials may be made whenever the evidence or the course of the trial will justify such an application. I agree that that is a correct statement of the law.
Visser then submitted at page 7 of his written submissions:
The allegations against VESSER and FALANGA are significantly different. Falanga is a principle (sic) in a central role whereas it is alleged Visser is on the extreme periphery whose role is that of someone on standby and the evidence to be adduced by the Crown in the prosecution of FALANGA is significantly different to the evidence relating to Visser.
The evidence the Crown seek to call to prove the conspiracy and FALANGA’S role is in the main, conceded by VISSER. Whilst that in its self may not technically be described as a classic ‘cut throat’ defence VISSER will not be disputing the Crown assertion that FALANGA was involved in a ‘central role’ and will refer to that as a fact in his defence.
VISSER may also introduce the bad character of the co-conspirators including the co-accused FALANGA whose bad character is relevant in support of the defence’s assertion the co-accused are people who would lie to and use other people for their own gain and would do so without conscience and with a complete disregard to the other peoples’ welfare.
The nature of VISSER’S defence, which inter alia concedes that VISSER was present with co-conspirators albeit for unrelated matters, has a risk the jury will reach an impermissible finding of guilt by association. To avoid such an outcome VISSER’S trial will require tailored judicial directions not applicable to FALANGA and vice versa that in itself may add further confusion and is one of many glaring examples of the difficulty of a joint trial that can be obviated by separate trials.
It was submitted by Visser that even if I was not satisfied on the individual reasons advanced that there should be a separate trial, then I should be satisfied that, in combination, all of those factors to which he has referred demonstrate a need to grant separate trials and that the combination would overwhelmingly displace the prima facie rule that persons charged jointly for committing the same offence should be tried jointly.
The prosecutor has provided to Visser and counsel for Falanga an outline of the prosecution submissions in opposition to the application by Visser for a separate trial, which deal with the matters referred to in the application of Visser. I do not intend to go through them, they speak for themselves. The prosecutor addressed the court briefly in respect of them. I have considered the submissions made by counsel for Falanga, for a separate trial based upon the possibility that evidence of bad character of Falanga may be led by the co-accused Visser, together with the dangers of having an unrepresented co-accused not bound by the rules, ethics and without the knowledge and abilities of a qualified lawyer and I am of the view that, at this time, the issues of an unrepresented co-accused can be dealt with by the trial judge ensuring that Visser is only permitted to ask relevant and appropriate questions, to lead relevant and admissible material and to ensure that both accused receive a fair trial according to law.
In respect of the possibility of what Visser may seek to do in terms of the issue of the bad character of Falanga, at this stage it is unknown, firstly, if he will persist with any evidence relating to bad character and, if so, what that evidence will be, whether it is legally admissible, and whether it is permissible on a discretionary basis. That is a matter that will need to be dealt with if and when it arises. This is one charge of conspiracy in which both accused are named in the indictment, both are alleged to have been involved in the same offence at the same time. It is appropriate that matters be heard jointly, if at all possible, for all of the reasons that are usually given in cases of this nature. Firstly, that there is a prima facie rule that persons charged jointly for committing the same offence should be tried jointly if possible. Secondly, that when offenders are charged with a conspiracy charge, that is an agreement to commit an offence, then, if possible, all alleged co-conspirators should be tried jointly on the basis of preventing inconsistent verdicts, wastage of public moneys by repeating the same evidence over and over in separate trials, and ensuring that the proceedings are dealt with as expeditiously as possible under all of the circumstances.
In this case, the evidence that is admissible to prove the existence and nature of the conspiracy is admissible against each of the accused. The individual evidence admissible as against each of them separately is of small compass in terms of the overall evidence in the trial. This can be seen in the admissions of fact that have been sought from each accused; they are virtually identical. Neither Visser nor Falanga will be disputing the evidence called by the Crown in this case. What is in dispute is the interpretation of the evidence that will be called, particularly the evidence of the recordings, text messages and surveillance observations of the participants over the relevant period, and the inferences that can be drawn from them.
Addressing each of the matters raised by Visser, I am satisfied that whilst a conspirator can be tried separately, there are strong reasons of principle and policy why persons charged with committing an offence jointly should be heard together. The prima facie rule is that persons charged with committing the same offence should be tried jointly. The requirement for a separate trial to be ordered by a Judge at this stage of the proceedings is that the applicant has shown there is a real risk of positive injustice if they are to be tried jointly. This includes a real risk of an unfair trial or a prejudice that cannot be cured by direction before a trial of this nature would be severed.
I am not satisfied that the accused Visser will necessarily call or lead any evidence of bad character of the accused Falanga. The statements in the submission are general in nature and no information has been provided as to what the evidence of bad character is, the relevance of the evidence, or the basis of any admissibility of evidence of bad character. The statements are to the effect that Visser ‘may’ call evidence of bad character, and without a great deal more detail as to what that may be, and if it will actually be relied upon, I have no basis for determining that a separate trial is required. This decision applies equally to the application of Falanga.
I am not satisfied that the evidence against each accused is significantly different, as I outlined earlier. There is equally in my view absolutely no risk of the jury determining the matter on the basis of ‘guilt by association’ that is not capable of being cured by judicial direction. Whilst the defence is not cut throat in the classical sense, I cannot foresee any risks associated with the potential defences nominated by Visser, that would require a separate trial to ensure a fair trial for either Visser or Falanga. Once again, that decision applies equally to the application of Falanga.
I am also satisfied that even the combination of the matters to which I have referred are not such that the applicant has shown there is a real risk of positive injustice if the accused are to be tried jointly.
In relation to the arguments of Falanga, my findings, as indicated above, are the same. In respect of the submission that he requires a separate trial from Visser as he is a self represented co-accused, who cannot be taken to be bound or fettered by the duties and obligations of all lawyers who appear before a court, and thus represents a danger to Falanga as he may say or do something in the trial that will harm the defence of Falanga. This is anticipatory at best and there is no actual basis upon which that argument could yet be supported. The obligations of a trial Judge are to ensure that all accused receive a fair trial, and despite the accused Visser being unrepresented he, like all others in a criminal trial, are bound by the rules of evidence, admissibility and relevance. A trial Judge giving appropriate assistance and directions to the accused should be able to ensure that nothing occurs without argument and submissions being made, during the trial proceedings that causes significant unfairness to any party.
Accordingly I refuse the applications for separate trials.
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