R v Williams
[2005] VSC 274
•8 July 2005
| IN THE SUPREME COURT OF VICTORIA | Unrestricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1478 of 2004
| THE QUEEN |
| V |
| CARL WILLIAMS |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 July 2005 | |
DATE OF RULING: | 8 July 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 274 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Accused | Con Heliotis QC | |
| For the Crown | Geoffrey Horgan SC With Andrew Tinney |
HER HONOUR:
This is an application by the accused Carl Williams for the court to direct the Crown as to the order of proceeding of the murder trials of which he stands accused. This is done by way of an application for a stay of the presentment in the Michael Marshall murder trial. This application is resisted by the Crown and it is necessary to briefly refer to the background to these charges for the purpose of this ruling.
Carl Williams has been charged with four murders, being Mark Moran on 15 June 2000, Jason Moran and Pasquale Barbaro on 21 June 2003 and Michael Marshall on 25 October 2003. In respect of those matters, there is no alleged co‑offender in respect of the Mark Moran matter, two alleged co‑offenders in respect of the Jason Moran and Pasquale Barbaro matters, being B and C and one alleged co‑offender in respect of the Michael Marshall matter, being B.
The Crown initially filed a joint indictment with three counts of murder naming the alleged offenders as outlined above. There was then a further presentment filed over, which included the last murder charge, that of Mark Moran. The Crown indicated at the first mention in this matter before me on 30 June 2005 that they did not intend to proceed with the joint presentment as filed and would be filing fresh presentments. On 4 July 2005 the Crown filed a presentment against Carl Williams and B containing one count of murder of Michael Marshall. A copy of that presentment had been delivered to the court and counsel for the accused on 1 July 2005.
B and another male, A, now a witness for the prosecution, were arrested on 25 October 2003, the day of Michael Marshall's murder, and charged the following day. That witness subsequently made a statement in respect of the murder of Michael Marshall on 22 June 2003 which implicated B and Carl Williams. According to the witness, Carl Williams organised and arranged for the killing of Marshall, utilising B to do the shooting and the witness to assist B in that task.
On 13 July the witness made a further statement in which he alleged that B shot Jason Moran and Pasquale Barbaro at the direction of Carl Williams and that C assisted in the planning of those murders, albeit that Jason Moran was the actual target of the planning and Pasquale Barbaro was not, as I understand it, expected to be killed. The witness claimed he was assisting B at the direction of Carl Williams in relation to those matters. The witness has, at some much later date not known to me, made a further statement implicating Carl Williams in the murder of Mark Moran.
Although it is not precisely clear from the material available to me, it appears that Carl Williams and B were charged with the Jason Moran/Pasquale Barbaro murders by way of notice of trial and Carl Williams also the murder of Michael Marshall in the same manner on 16 August 2004. C was charged in the normal way on that same day. On 30 August 2004 a direct presentment was filed in respect of those matters with this court, charging the respective accused referred to with the murders of Michael Marshall, Jason Moran and Pasquale Barbaro.
I have no information as to when, or the manner in which, Carl Williams was charged with the Mark Moran murder.
As a result of an order of Gillard, J made on 14 December 2004, a committal proceeding was held in respect of the Moran/Barbaro murders and the Marshall murder between 1 and 10 March 2005. A subsequent committal was held in respect of the Mark Moran murder on 23 to 26 May 2005, that date being obtained through the auspices of Cummins, J and the Chief Magistrate.
This application to stay the current presentment before the court as an abuse of process arises from the defence submission that the appropriate case to proceed with first is that of the murder of Mark Moran. The defence put forward a number of matters that, in my view, have no real relevance to an application of this nature, being, that the murder occurred first in chronological time; secondly, that there is only one accused; third, that the estimated duration is two weeks with some 51 witnesses; and, finally, that the trial which the Crown wish to proceed with first was the last in time chronologically.
The defence have brought the application to stay the Michael Marshall proceeding and to proceed with the Mark Moran hearing and thus bear the onus of satisfying the court that such a stay should be granted. As Gillard, J stated in his ruling in Williams, Brincat & Traglia v. The Director of Public Prosecutions[1]:
"The Crown has the right to make a presentment without a preliminary hearing and accordingly the Court should proceed on the basis that it is appropriate unless the accused persuade the Court to the contrary".
[1][2004] VSC 516 at page 10, 14 December 2004.
The same must logically apply to the Crown making presentment before the court when s.353 of the Crimes Act 1958 is examined. That section states :
"(1)Subject to the provisions hereinbefore contained and to sub‑section (2) and to the Public Prosecutions Act 1994, the Director of Public Prosecutions or any current prosecutor in the name of the Director of Public Prosecutions may make presentment to the Supreme Court or County Court of any person for any indictable offence cognisable by such courts respectively, and every such presentment may be in the form contained in the Third Schedule or to that effect and be as good and of the same force, strength and effect in the law as if the same had been presented and found by the oaths of twelve men".
Thus I accept that it is the right of the Crown to make presentment in the form that it has and that the defence need to persuade me that to proceed with this presentment would be an abuse of the process in the accepted terms, that is, that it would result in a trial that is unfair when judged by reference to accepted standards of justice; see Barton v. The Queen[2].
[2](1980) 147 CLR 75 at page 95.
It must be conceded that this is an unusual application, for the system in which it takes place is an adversary system, with the Crown bringing before the courts the presentments that it considers appropriate and the defence defending their clients charged by such presentments. Here the defence is seeking that the court determine which of the charges laid against the accused should proceed first and are advocating a particular sequence or order of trials. If I did not consider myself bound by the decisions of Gillard, J and Cummins, J in previous hearings of these matters, I am not sure that I would have entertained the application.
But, having determined that it is appropriate to hear the applications, and bearing in mind the onus, Mr Heliotis QC on behalf of Carl Williams submitted that the factors that would make it unfair to have the Marshall matter heard first are as follows.
Firstly, the amount of publicity that had been generated in respect of these murders and, more particularly, the amount of publicity that has been generated about Carl Williams and these particular murders.
Secondly, that the Mark Moran trial is the simplest and most straightforward of all the trials.
Thirdly, that the witness A is the key witness in this case and there is no expert evidence to be relied upon.
Fourth, that this is the commencement of the killings and the foundation of the relationship that developed and existed between A and Carl Williams.
Five, that the issues in the trial are more simple because the defence revolves around an alibi.
Six, that for the defence to run their case in the Michael Marshall murder in the manner they say is appropriate, they submit that it will be necessary for them to put before the jury the other murders and prove that, particularly in the matter of the Mark Moran murder, Carl Williams is not guilty.
Seven, that if the Mark Moran matter proceeds first, they will not need to cross‑examine A in relation to the subsequent murders or at the least any allegation of their client's involvement in such murders. They may be raised as a matter of credit with the witness A.
In relation to B, it was indicated by Mr Papas on his behalf that he may be going to plead guilty to that murder but that matter has not been finally determined. Concern was raised that, if the Marshall matter is heard first and his client pleads guilty to that, the Crown may seek to lead that plea in respect of the Jason Moran/Pasquale Barbaro murder.
The Crown have indicated that they wish to proceed with the Michael Marshall murder on the basis that it was the first murder in which charges were laid, being 26 October 2003 in respect of A and B and August 2004 in respect of Carl Williams. The Crown have also indicated that this is the strongest of the cases against Carl Williams and B and they believe that it is in the public interest to bring the strongest of the cases first. From the arguments advanced in front of me, it is clear that the defence agree that this is the strongest of the Crown cases. I am unable to comment on the strength of the case against Carl Williams in respect of the Mark Moran murder case as I have yet to receive any papers in relation to that matter, but it does appear that all parties seem to accept the premise put forward in relation to the relative strength of the cases.
Mr Heliotis QC submitted that the Crown cannot point to any actual prejudice that they will suffer if the trials proceed in the order that he submits is appropriate.
In Jago v. District Court (NSW)[3] stated:
"The continuation of processes which will culminate in an unfair trial can be seen as a 'misuse of the court process' which will constitute an abuse of the process because the public interest in holding a trial does not warrant the holding of an unfair trial.
Ultimately it does not matter whether the problem is resolved in this way by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed."
[3](1989) 168 CLR 23, Mason, CJ at pages 30‑31.
In the same case Brennan, J stated at page 49:
"Moreover, although our system of justice adopts the adversary method in both the criminal and civil litigation, interests other than the those of the litigants are involved in litigation, especially criminal litigation. The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self‑help to rectify their grievances".
In Barton v. The Queen, Gibbs, ACJ and Mason, J said:
"We must have regard to the interests of the Crown acting on behalf of the community as well as to the interests of the accused".
In Jago this was reiterated quite strongly by Mason, CJ when he said:
"The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial".
Accordingly, the court is required to balance the interests of the Crown acting on behalf of the community and the interests of the accused to determine whether a trial of the Michael Marshall murder as the first trial would be unfair when judged by the standards that have been referred to in Jago v. The District Court (NSW). The reference is to "a trial as fair as the courts can make it"; Brennan, J supra at 49.
In relation to the matters raised by Mr Heliotis in support of the application, being, firstly, the publicity that has been generated in respect of these murders; as to that matter that is generally accepted as something that is capable of being dealt with by directions by the trial judge and I have no doubt that it can be properly dealt with in this trial irrespective of which matter proceeds first. An appropriate direction given to a jury has been found to have significant effect and one must presume that a jury will follow the directions.
The second point, that the Mark Moran trial is the simplest and the most straightforward of all of the trials; I consider that this has no relevance to the issue of unfairness.
Thirdly, that the witness A is the key witness in this case and there is no expert evidence to be relied upon; equally I consider this has no relevance to the issue of unfairness.
I then go to point 5, that the issues in the trial are more simple because the defence revolves around an alibi. Once again I consider this is a similar point to that raised in point 2 above and has no relevance to the issue of unfairness.
Point 4, that this is the commencement of the killings and the foundation of the relationship that developed and existed between the witness A and Carl Williams. In my view, it is correct that it is the beginning of the relationship between the witness A and Carl Williams and that may be a relevant factor for the defence in establishing the type of relationship that existed between these two men. It must be noted, however, that prior to A's late confession to his involvement in this murder, allegedly with Carl Williams, both the Crown and the defence were prepared to proceed with the two other sets of murder charges. As indicated, this matter has some degree of relevance to the issue of unfairness and I understand how the defence put the claim of prejudice arising from those points, but they are inextricably tied in with the points raised in points 6 and 7.
Being, point 6, that for the defence to run their case in the Michael Marshall murder in the manner they say is appropriate, they submit it will be necessary for them to put before the jury the other murders and prove that, particularly in the matter of the Mark Moran murders, Carl Williams is not guilty. That goes to the relationship that existed between A and Mr Williams. In my view, they are inextricably tied.
And point 7 is really the reverse of point 6, that, if the Mark Moran matter proceeds first, they will not need to cross‑examine A in relation to the subsequent murders, or at the least, any allegation of their client's involvement in such murders. The other murders may be raised as a matter of credit with the witness A.
As to the points raised by the defence in points 6 and 7, they are, in my view, largely forensic determinations that will have to be made by counsel in consultation with and upon instructions from the accused. There is no doubt that forensically the overall defence would be enhanced if the Crown were forced to put the weakest of the cases on first. The defence are clearly confident of an acquittal on this charge and intend to use such an acquittal, if obtained, to impugn the reliability and veracity of the witness, A. Mr Heliotis stated in his submissions before me at page 13 (King J, R v. Williams, Brincat and Traglia, page 13, Transcript, 14 July 2005):
"... Because of this, the High Court has made it clear that if he's acquitted in relation to the Mark Moran murder, then he's entitled to be presumed ‑ to be held innocent and we start off the next murder on the basis 'that this man is innocent of this murder that you are alleging'".
The Crown have submitted that what is being sought to be done by the defence by seeking a particular order for trials is tactical and is based upon the defence wishing to have the simpler, easier and largely uncorroborated of the trials run first. The Crown argue that they are entitled to put forward their best case and have that determined by a jury. If there is an acquittal in that matter, then although the Jason Moran and Pasquale Barbaro case would probably still proceed due to the co‑accused, the Crown, in my view, would certainly have to reconsider the Mark Moran murder case which is dependent to a very large degree on the evidence of the witness, A.
As I have indicated, it is my view that what is being sought by the defence and the Crown is in both cases largely tactical in nature. It is not the task of the court to make the Crown proceed with the case that is most advantageous to the accused. Neither is it the case that the court will permit the Crown to proceed with a case that is oppressive or unfair.
In his submissions, Mr Heliotis QC, particularly referring to the aspect of the amount of pre‑trial publicity, submitted that the court should (Transcript supra page 5):
"bend over backwards more so than normal to try and do whatever it possibly can to reduce the prejudice wherever possible in any trial that Mr Williams faces".
The court can and will do that in respect of pre‑trial publicity. The court will also do all that it can to ensure that the trial is conducted in a fair and proper manner by all parties. That would include that a jury would not be asked or permitted to examine a charge that is not before them. The issue of the other murders is a matter that can go only to the credit of the witness A and not one that the defence or the Crown would be entitled to submit to a jury is something on which they are expected to or entitled to make a decision. The submission of Mr Heliotis that he would have to prove that Carl Williams is not guilty of the Mark Moran murder if the trial of Michael Marshall proceeds first is, therefore, not a submission that I accept.
The public interest is also something that needs to be considered when dealing with an application of this nature. There is a genuine public interest in trials in this court and any court being run in the most expeditious and economical manner. If the matter of Michael Marshall proceeded first and there was an acquittal resulting in relation to Carl Williams, it would be, in my view, most surprising if the Crown pursued the Mark Moran murder trial. To force the Crown to proceed with a matter that they ultimately may not proceed with at all cannot be in the public interest. That trial is estimated to proceed for a period of two to three weeks of court time and involve the calling of some 51 witnesses. If the jury accept the witness A is a witness of truth in the Marshall matter and possibly in the Barbaro/Moran matters, then the defence may equally take a different course. All of these things are unknowns but they are serious possibilities that have to be taken into account.
Whilst I accept that there may be some difficulties that the defence will face in respect to the Michael Marshall murder being the first of the trials, the issue of pre‑trial publicity can and will be dealt with by proper directions and the issue of the other alleged murders are a matter of forensic decision for counsel. The Crown will not be permitted to lead evidence about them and it is matter for the defence as to how they wish to deal with them within the limitations that I have indicated.
As to the issue of the plea of B, if such a plea arises, then the court can deal with any application that the Crown may make by rulings on the issue of admissibility in any subsequent trials. That is not sufficient, in my view, to cause the exercise of my discretion on the unfairness argument.
Therefore, balancing the matters to which I have referred, I am not persuaded by the defence that I should exercise my discretion to direct the Crown on the issue of the order of presentments they file which is by law a matter within their purview.
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