R v Zappia & Kamleh No. Sccrm-01-77

[2002] SASC 133

R v ZAPPIA & KAMLEH

[2002] SASC 133

Reasons for Ruling

1. BESANKO J  Natale Zappia and Jamil Kamleh are jointly charged with the murder of Mr Isac Colberg (also known as Faraz Rasti) and with the murder of Ms Rhiannon Ellul on 3 April 2000.

   Introduction:

2. The prosecution case is that the two victims were shot late on Sunday night 2 April 2000 or early on Monday morning 3 April 2000 in Unit 22 of the Grand Apartments in North Adelaide in the State of South Australia.  The male victim was shot twice, once in the left eye and once in the neck.  The female victim was shot once in the forehead.  The prosecution case is that the shootings were part of a joint criminal enterprise between the two accused.

3. Both accused were interviewed by the police after the shootings.  Both said they were with each other on the night in question, and that they did not go to the Grand Apartments.  They told similar stories about their movements on the night, and in particular both accused said they were at a nightclub called The Q Club from about 10:00PM to 4:00AM on 2 and 3 April 2000.  The prosecution case is that together the accused concocted a false story to tell the police.

4. Both accused have pleaded not guilty to the charges.

5. The accused Kamleh applied for an order that the charges against him be heard separately from the charges against the accused Zappia.  Submissions on the application were made by counsel for the Director of Public Prosecutions (“DPP”) and by counsel for the accused Kamleh.  Counsel for the accused Zappia appeared on the application, but he said that he did not wish to make any submissions.

6. On 16 January 2002 I made an order that the accused Kamleh be tried separately from the accused Zappia and I indicated that I would publish my reasons later.  My reasons follow.

7. I will make an order pursuant to s 69A of the Evidence Act 1929 suppressing these reasons from publication until further order.

8. I do that for the same reasons I made orders during the trial of the accused Zappia suppressing from publication Mr Kamleh’s name, any matter that would tend to identify him and all evidence in the trial including evidence by the accused Zappia as to what the accused Zappia said or says Mr Kamleh said or did.  Such orders were necessary to prevent prejudice to the proper administration of justice.  Mr Kamleh’s trial is listed for hearing in this Court in August 2002.  The orders are necessary in order to prevent the potential prejudice to Mr Kamleh that might otherwise result.

9. I start with a summary of the respective cases against the accused based on the witness statements and exhibits and on what I was told during the course of submissions on the application.

   The Evidence Against the Accused Kamleh

10. As a general comment it may be said that the case against the accused Kamleh is circumstantial and it is likely that there will need to be a number of directions to the jury about how it may use certain items of evidence.

11. The evidence the prosecution wishes to lead against the accused Kamleh may be summarised in the following way.  I emphasise that what follows is no more than a summary.

    1.     Evidence from a witness staying in the apartments on the night in question together with evidence from a witness who visited the apartments the previous night which might lead a jury to conclude that the accused Kamleh and another man entered the Grand Apartments at about 1:00AM on Monday 3 April 2000.  Evidence from a witness who spoke over the telephone with the male victim a short time before the shootings and may have spoken to the accused Kamleh during the same telephone conversation.

    2.     Physical evidence obtained from items found in the apartment after the shootings suggesting that the accused Kamleh had been in the apartment at some stage in the period leading up to the shootings.  The evidence consists of DNA evidence and fingerprint evidence.  Some of the evidence, if accepted, may establish that the accused Kamleh lied to the police as to when he was last in the apartment.

    3.     Evidence from various witnesses present at the Q Club on the night in question which, if accepted, may establish that the accused Kamleh was not at the Q Club until sometime later in the morning of 3 April 2000.  This evidence suggests the accused Kamleh lied to the police about his movements on the night in question.

    4.     Evidence from various witnesses about the relationship between the accused Kamleh and the male victim including evidence suggesting that there had been a previous physical altercation between them and evidence that at about the time of the shootings there was a dispute between them over the possession of the accused Kamleh’s mobile telephone and evidence suggesting the male victim constantly taunted and abused the accused Kamleh.

    5.     Evidence that both accused visited the premises at Unit 3, 3 Melville Road, Hectorville, some hours before the shootings.  The accused Zappia was carrying a gun and the accused Kamleh had a balaclava.  As they left, the accused Kamleh was heard to say, “Let’s do it, let’s go”.  The prosecution submits that what happened at the Hectorville unit will establish that the accused were acting jointly or with a common criminal purpose.

    6.     Evidence by way of interceptions of telephone conversations said to have been between the accused Kamleh and the accused Zappia and to have taken place a short time after the shootings from which it is to be inferred that the accused got together to concoct a false story to tell the police about their movements on the night in question.  Counsel for the accused Kamleh submitted that these telephone conversations are not admissible against her client because the prosecution cannot prove that the accused Kamleh was a party to the conversations.  In my opinion I should decide this application on the basis that this evidence is admissible against the accused Kamleh.

    The Evidence Against the Accused Zappia

12. As a general comment it may be said that an important part of the prosecution case against the accused Zappia are admissions he is said to have made after the shootings.  This evidence will be given by way of oral evidence from witnesses who heard what he said, by the replaying of telephone conversations which were intercepted and recorded and by the replaying of conversations which were recorded by the use of listening devices.

13. The evidence against the accused Zappia may be summarised in the following way.  Again, I emphasise that what follows is no more than a summary:-

    1.     Evidence from a witness staying in the apartments that two persons of a similar description to the accused Zappia and the accused Kamleh were seen walking along Melbourne Street towards the entrance to the front of the apartments at approximately 1:00AM on the morning of Monday 3 April 2000.

    2.     Physical evidence obtained from items found in the apartment after the shootings suggesting the accused Zappia had been in the apartment at some stage during the period leading up to the shootings. This evidence consists of DNA evidence and fingerprint evidence.

    3.     Evidence of flight by the accused Zappia, namely evidence that he left the State of South Australia and travelled to Queensland in late April/early May 2000 and stayed there until 4 July 2000.

    4.     Evidence of a change of appearance by the accused Zappia, namely evidence that prior to 12 April 2000 he had shoulder-length hair which he had cut very short on that day.

    5.     Evidence from various witnesses present at the Q Club on the night in question which, if accepted, may establish that the accused Zappia was not at the Q Club until sometime later in the morning of 3 April 2000.  This evidence suggests the accused Zappia lied to the police about his movements on the night in question.

    6.     Evidence that both accused visited the premises at Unit 3, 3 Melville Road, Hectorville, some hours before the shootings.  The accused Zappia was carrying a gun and the accused Kamleh had a balaclava.  As they left, the accused Kamleh was heard to say, “Let’s do it, let’s go”.  There is evidence from a witness that whilst at the unit the accused Zappia asked him whether he had any ammunition. 

    The prosecution submits that what happened at the Hectorville unit will establish that the accused were acting jointly or with a common criminal purpose.

    7.     Evidence by way of interceptions of telephone conversations said to have been between the accused Kamleh and the accused Zappia and to have taken place a short time after the shootings from which it is to be inferred that the accused got together to concoct a false story to tell the police about their movements on the night in question.

    8.     Evidence from a witness who says that about a week before the shootings the accused Zappia told him that the accused Kamleh did not like the male victim, that they had a score to settle and that he and the accused Kamleh were going to catch up with the male victim one way or another.  The accused Kamleh was not present during this conversation. 

    As I understand it the prosecution concedes that this conversation is not admissible against the accused Kamleh. 

    9.     Evidence from a number of witnesses that in the days and months following the shootings, the accused Zappia had conversations with them and said he had been present at the time of the shootings and that the accused Kamleh was the shooter.  The accused Zappia described what happened in the apartment at the time of the shootings.  The accused Zappia was highly critical and abusive of the accused Kamleh.  The accused Zappia is reported to have said the accused Kamleh “just went crazy and shot the guy” and that he had done that because he hated the male victim.

    As I understand it the prosecution accepts that none of these conversations are admissible against the accused Kamleh.

14. 10.    Evidence of what was said by the accused Zappia during  a number of telephone calls involving the accused Zappia and members of his family and associates in April, June and July 2000.  The telephone calls were intercepted by police under warrants obtained under the Telecommunications (Interception) Act 1979 (Cth). The prosecution says that during these telephone calls the accused Zappia admits his involvement in the killings. It says the audio tapes and transcripts of the conversations are admissible against the accused Zappia.

15. The prosecution accepts that at least thirteen of these telephone conversations are not admissible against the accused Kamleh.  During the telephone conversations the accused Zappia makes statements to the following effect or from which the following may be inferred.

    (1)That he has gone to Queensland and changed his appearance.

    (2)That the “other bloke” is “fucked” because he is the one “that done it anyway”.

    (3)That he was present when the two people were shot.

    (4)That the accused Zappia did not do it and the other bloke did it “he just fucking went nuts”.

    (5)That if they find the weapon they have got Jamie (ie, the accused Kamleh).

    (6)That the police did not have any physical evidence against him.

    (7)That it was the other man who has the problem.

    (8)That he was at the scene at the time of the shooting but nothing more.

16. The prosecution also wishes to lead evidence of what was said by the accused Zappia during various conversations he had with his friends and associates at Unit 3, 3 Melville Grove Hectorville.  These conversations were recorded by listening devices installed in the premises pursuant to warrants obtained by the police under the Listening Devices Act 1972.  The premises were owned or leased by a friend of the accused Zappia and it is alleged that the accused Zappia lived in the premises for seven to ten days after he returned from Queensland in early July 2000.  There is no suggestion that any party to the conversations was aware that they were being recorded.

17. The accused Kamleh was not a party to any of the conversations.

18. The audio tapes of the conversations and the transcripts prepared by the police record conversations which extend over many hours, certainly in excess of ten hours.  The prosecution says that they are admissible against the accused Zappia and clearly show his involvement in the killings.  They are an important part of the prosecution case against the accused Zappia.  The prosecution accepts that they are not admissible against the accused Kamleh.

19. I have perused a number of the transcripts of the conversations, and I was given an extensive summary of the important statements made by the accused Zappia during the conversations.  Neither party asked me to listen to the audio tapes and I did not think it was necessary to do so.

20. The tapes have the undoubted potential to have a strong impact on a jury.  The accused Zappia talks freely with his friends and associates about his involvement in the killings in circumstances in which there is no suggestion he is aware his conversations were being or might be recorded.  The accused Zappia makes statements on many occasions to the following effect or from which the following may be inferred:-

21. He was present in the apartment at the time of the shootings.

22. The accused Kamleh was also present in the apartment at the time of the shootings.

23. The accused Kamleh was the person who shot the two victims.  There is never any statement by the accused Zappia that he was the shooter.

24. There were only four people in the apartment at the time of the shootings, the two accused and the two victims.

25. There was a dispute between the accused Kamleh and the male victim over a mobile telephone.  The male victim was rude and abusive towards the accused Kamleh.

26. The television set had been turned up very loud at the time of the shootings.

27. Both accused made extensive efforts after the shootings to avoid detection by the police including the destruction of certain items in the apartment including an ashtray, the destruction and disposal of the weapon, the destruction of a mobile telephone and the concoction of a false alibi.

28. That the accused Zappia was very angry with the accused Kamleh for the trouble the accused Kamleh had got him into.  Indeed, some passages suggest that the accused Zappia had contemplated the killing of the accused Kamleh.

29. Statements that the accused Zappia did not know that the accused Kamleh was going to shoot the two victims, that the accused Kamleh had just “gone crazy”.  Equally there are other statements that suggest that accused Zappia was involved in the planning of the shootings and knew they were going to occur.

30. An intimate knowledge by the accused Zappia of what occurred and what leads and physical evidence the police might be examining.

31. That the accused Kamleh did the shooting because he was a gangster or wanted to be seen as a gangster.  After the shootings the accused Kamleh was going around town like a “big shot”.

32. The accused Kamleh would not have done anything if the accused Zappia had not gone with him.

33. If the accused are tried jointly the sound recordings of these conversations will be played to the jury.  As I have said, the sound recordings occupy many hours.  They would not be played to the jury in the accused Kamleh’s trial if he is tried separately from the accused Zappia.

34. The accused Zappia’s statements not only implicate him in the killings but they also implicate the accused Kamleh as the shooter and as the person with the motive to harm the male victim.

35. The prosecution accepts that if the accused are tried jointly, detailed and careful directions will need to be given to the jury that the accused Zappia’s statements (as summarised in paragraphs 8, 9 and 10 above) are not admissible against the accused Kamleh and could not be used in any way as evidence against him.

    Relevant Legal Principles

36. The relevant principles have been stated on a number of occasions.  In R v Harbach[1] the Court said,

    “But three things are clear.  The first is that when the accused are charged with committing the crime jointly prima facie there should be a joint trial: R v Pullman [1954] SASR 116 at 121; R v Kerekes (1951) 70 WN (NSW) 102, per Owen J (at 104). The appellant and Munroe were jointly charged and the Crown case was one of a joint enterprise, at least to rob Meyer and perhaps, if necessary, to kill him. The second is that a joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against one of the accused, though admissible against the other, will be before the jury (R v Pullman; Youth v The King [1945] WN 27) and the third is that it may be ordered notwithstanding that one of the accused or each of the accused is trying to cast the blame for the crime on the other (R v Grondkowski [1946] KB 369), though both of these are highly relevant considerations to the exercise of the discretion: see Grondkowski (supra) (at 373-374).

    There may appear to be an anomaly here.  It may appear strange that material which would be sedulously kept from a jury, if an accused person were being tried alone, should be allowed to go before them when there is another person in the dock on the same charge.  The point is made, with his customary incisiveness, by Dr Glanville Williams, The Proof of Guilt (1955), pp 186-187.  The answer appears to be twofold: first, that it is the duty of the 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 and that the law assumes that the jury is capable of understanding and willing to heed such admonitions; secondly, that in such cases, and particularly when each of the accused is seeking to cast the blame onto 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:  R v Gibbins and Proctor (1918) 13 Cr App R 134 at 137; Grondkowski; Kerekes (supra).  The second consideration is presumably thought sufficiently cogent for the law to leave it to the judge’s direction and warning about the use of evidence or material, such as an unsworn statement, admissible against one accused but not against the other, to act as a sufficient safeguard against injustice.

    The current test of whether the exercise of a discretion against separate trials will be interfered with by a court of appeal appears to be whether, by reason of the joint trial, there has been a miscarriage of justice (R v Beavan (1952) 69 WN (NSW) 140; Kerekes (at 105)); or whether improper prejudice has been created against an accused: Grondkowski (at 374); R v Flaherty [1968] 3 NSWR 734, per Asprey JA (at 741).”

    [1] (1973) 6 SASR 427

37. In R v Collie, Kranz and Lovegrove[2] (“Collie”) King CJ cited with approval a passage from the judgment of the Full Court of the Supreme Court of Victoria in R v Demirok[3] which explains why persons jointly charged should ordinarily be tried jointly.

    “The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows.  In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted.  These matters will in many cases not be of very great weight, in others they may assume real significance.  Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial.  Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required.  Fourthly, the convenience of witnesses must be considered.  The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.”

    [2] (1991) 56 SASR 302

    [3] [1976] VR 244 at 254; on appeal but not on this point Demirok v The Queen (1977) 137 CLR 20

1. King CJ in Collie went on to cite what he had said in R v Glover[4].  In that case his Honour referred to the fact that it was highly desirable that the jury should have before it the respective accounts of all the alleged participants in the relevant incident, and that generally speaking persons charged as participants in a joint enterprise should be tried together.  His Honour acknowledged that there are cases in which there are circumstances that are so prejudicial to a particular accused that a separate trial is imperative.

   [4] (1987) 46 SASR 310

2. Neither King CJ (with whom Debelle J agreed) nor Cox J in Collie thought that the decision of the High Court in R v Darby[5] abrogated the established principles, although King CJ did say that in the case of persons charged with committing a crime jointly (other than conspiracy) a difference in the evidence admissible against each accused may be an important factor in the exercise of the discretion as to whether to order separate trials.  Cox J put the matter in this way,

   “In other joint trials what is likely to matter is not so much that there are significant evidential differences but that certain evidence admissible against one accused but not against the others might have a tendency to prejudice the others – typified by the statement made out of court by D1 that implicates him in the alleged crime but also, on the face of it, implicates an absent D2 as well.”

   [5] (1982) 148 CLR 668

3. In Collie King CJ held that each appellant was entitled to an order for a new trial on the charge of murder.  His Honour went on to express a view as to whether the appellants Collie, Kranz and Lovegrove should be tried together.  His Honour held that there was no reason why Collie and Kranz should not be tried together.  The position of Lovegrove however was different.  Lovegrove had made certain statements to the police which revealed knowledge as to how the murder had been committed.  His defence was that his statements to the police about his involvement in the incident were the product of delusions.  He explained his knowledge about how the murder had been committed by reference to rumours circulating in the district.  These rumours implicated Collie and Kranz.  Collie and Kranz would be seriously prejudiced by such evidence.  Moreover, Lovegrove would be seriously prejudiced by a joint trial because an assessment of the reliability of Lovegrove’s statement to the police depended very much on whether the involvement of Collie and Kranz was proved by evidence admissible against Lovegrove.  The evidence admissible against Lovegrove on this issue did not include incriminating statements made by Collie and Kranz and admissible against them.  His Honour expressed the view that Lovegrove should be tried separately from Collie and Kranz.

4. The mere fact that the evidence admissible against one accused is different from the evidence admissible against another accused is not sufficient to justify an order for separate trials, nor is the fact that an accused makes a statement or statements implicating his co-accused in circumstances where that statement is not admissible against the co-accused of itself sufficient to justify an order for separate trials.[6]  The jury can be given careful and detailed directions.  There is no reason to think a jury is not capable of appreciating and following such directions.[7]

   [6] R v Gillard and Preston [2000] SASC 454 per Duggan and Bleby JJ at paras [90] – [93]

   [7] R vWebb and Hay (1992) 59 SASR 563 per King CJ at 585; Webb v The Queen (1994) 181 CLR 41 per Toohey J at 89

5. Counsel for the accused Kamleh accepted these propositions, but argued that a jury in this case would be overwhelmed by the sheer volume of inadmissible material implicating her client. 

6. Counsel for the accused Kamleh also referred to the possibility that even if the jury excluded the inadmissible material from their minds in considering the evidence against her client, nevertheless there was the danger that the members of the jury may use it indirectly as bolstering or increasing their confidence in the evidence which was admissible against her client such as the evidence of the witnesses who saw the two men coming into the Grand Apartments at about 1.00 am on 3 April 2000.[8]

   [8] R v Demirok supra at pg 250

7. Counsel for the accused Kamleh referred to and relied on the decision of Cox J in The Queen v Conlon and Conlon[9] (“Conlon”).  That case was quite different from the present case.  A husband and wife were charged jointly with maliciously causing grievous bodily harm.  The wife had made a number of statements to the police which implicated the husband.  These statements were not admissible against the husband.  The two important factors in his Honour’s decision to order separate trials were first, the case that the crime was part of a joint enterprise by the husband and wife as distinct from one of them acting alone was particularly weak, and secondly, the case against the wife was particularly weak.  As to the second factor his Honour went so far as to say:

   “Given the state of the case against her, as disclosed by the depositions, it is not too much to say that, if the two accused were to be tried jointly, Mrs Conlon’s objective role would for practical purposes be almost confined to acting as a stalking horse in the Crown’s case against her husband.”

   [9] (1982) 30 SASR 176

8. Conlon is clearly distinguishable from the present case.  In this case the proposition that the killings were part of a joint enterprise is no weaker than the other possibilities and it cannot be said that the case against the accused Zappia is weak.

9. I do not find the decision in Conlon of much assistance in determining the issue in this case.

10. Counsel for the accused also referred to and relied on the decision of the Court of Criminal Appeal in Victoria in Jones and Waghorn[10].  Jones and Waghorn were jointly tried for the crime of murder.  Jones made statements to the police implicating Waghorn.  Later he made full admissions and his defence at trial was that the wounds he had inflicted had not caused death.  Waghorn made various statements to police denying any knowledge or involvement in the killing.  Waghorn asserted that he had been set up.  Both accused were convicted.

    [10] (1991) 55 A Crim R 159

11. Waghorn sought leave to appeal on a number of grounds including the ground that he should have been granted a separate trial.  He succeeded on this ground.

12. Jones’ statements not only implicated Waghorn in the commission of the offence but also suggested that he was of bad character.  This was one factor in the Court’s decision to hold that there should be separate trials. 

13. In this case there are some statements by the accused Zappia which might suggest that the accused Kamleh was of bad character.  Although I think it is a matter to be taken into account, it is not as significant a factor as it appears to have been in Jones and Waghorn.

    The Decision in this Case

14. In the end the question I must ask myself is whether I am confident that a jury properly instructed could, in considering the case against the accused Kamleh, exclude from their minds the many statements made by the accused Zappia after the killings which implicate the accused Kamleh in the killings, which identify him as the shooter and which suggest a motive for the accused Kamleh to carry out the killings.[11]

    [11] R v Trotter and Ors (1992) 58 SASR 223 per Perry J at 227; R v Clothier and Williams [2001] SASC 130 per Williams J at para 27

15. In my opinion the question is finely balanced.

16. There is a reasonably significant difference in the amount of evidence admissible against the two accused.  In fact counsel for the DPP conceded that on the face of the witness statements and exhibits the case against the accused Zappia was significantly stronger than the case against the accused Kamleh.  The statements by the accused Zappia which are inadmissible against the accused Kamleh implicate the latter in the killings, identify him as the shooter and suggest a motive for the accused Kamleh to carry out the killings.  As I have said, neither of the two matters which I have just mentioned are decisive, and in fact, joint trials often take place where these circumstances exist. 

17. To my mind what is decisive in this case is the nature and volume of the out-of-court statements which the prosecution will lead against the accused Zappia but which are not admissible against the accused Kamleh.

18. As I have said, the nature of the out-of-court statements is such that they have the potential to have a strong impact on the jury.  The conversations in the Hectorville unit in July 2000 between the accused Zappia and his friends take place in circumstances where there is no reason to think any participant in the conversations thinks that what he or she is saying may be overheard.  It would be open to the jury to find that, at least on occasions, the accused Zappia talks frankly about his involvement in the shootings.  More importantly, he makes reference over and over again to the fact that the accused Kamleh was the shooter and that there was a dispute between the male victim and the accused Kamleh over a mobile telephone.  Indeed, I think it would be very difficult for anyone who had read the transcripts to dispel from their mind the firm impression that the accused Kamleh was the shooter and that there was a dispute about a mobile telephone.  The oral evidence from witnesses to whom the accused Zappia spoke after the killings will only reinforce this impression.  There is also a significant risk that such evidence would affect in a way prejudicial to the accused Kamleh the jury’s approach to the evidence properly admissible against him.

19. Furthermore, in terms of the volume of the statements, the tapes occupy many hours and they will be played to the jury and the prosecution will ask that the transcripts be given to the members of the jury.  They are a significant part of the prosecution case against the accused Zappia, and are likely to occupy a substantial period of time at his trial.

20. In the end it is probably a question of degree. I have reached the conclusion that considering the particular features of this case, I cannot be satisfied that a jury properly instructed could exclude from their minds in considering the case against the accused Kamleh the many statements made by the accused Zappia after the killings which implicate the accused Kamleh, which identify him as the shooter and which suggest a motive for the accused Kamleh to carry out the killings.

21. It is for these reasons that I made an order that there be separate trials.