Regina v Dean Anthony Privett and Michael Privett

[1999] NSWSC 1074

CITATION:	Regina v Dean Anthony Privett and Michael Privett [1999] NSWSC 1074
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	70081/98; 70014/97
HEARING DATE(S):	7 July 1999
JUDGMENT DATE:	3 August 1999
PARTIES :	Regina v Dean Anthony Privett Michael Privett
JUDGMENT OF:	Badgery-Parker AJ at 1

COUNSEL :	Cr: Mr P Conlon D (Dean): Mr P Young D (Michael): Ms M Perrignon (solicitor), then Mr P Bodor QC
SOLICITORS:	Cr: Crown Solicitors Office, Wollongong D (Dean): Legal Aid Commission of NSW D (Michael): Brezniak Neil-Smith & Co, Sydney
CATCHWORDS:	CRIMINAL LAW - Application for change of venue - Whether a "fair or unprejudiced trial cannot otherwise be had" - Publicity on television and in print media - Whether matters likely to come to jury’s attention in any event - whether warning to jury to disregard media sufficient; CRIMINAL LAW - Co-offenders - Application for separate trials - Whether holding joint trial would cause "positive injustice" - Consideration of principles enunciated by Hunt J in Middis & Ors (NSWSC, unreported, 27 March 1991) - Whether evidence against one accused is significantly weaker and/or different from evidence against other accused.
ACTS CITED:	Crimes Act 1900
CASES CITED:	Dorrington (1969) 1 NSWR 381 Grondkowsi (1946) 1 KB 369 Oliver (1984) 57 ALR 543 Farrell and Cotton (1990) 48 A Crim R 311 Webb & Hay v The Queen (1993/94) 181 CLR 41 Middis & Ors (Supreme Court of NSW, 27 March 1991, unreported) Guldur (1986) 3 NSWLR 12 Jason Joy Richards (16 February 1998, Supreme Court of NSW, unreported) Coulstock & Summersford (9 October 1991, NSW Court of Criminal Appeal, unreported)
DECISION:	Applications for change of venue and separate trials refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BADGERY-PARKER AJ

Tuesday, 3 August 1999

No: 70081/98 REGINA v Dean Anthony PRIVETT
No: 70014/97 REGINA v Michael PRIVETT

JUDGMENT

1    HIS HONOUR: The Crown proposed to present at Goulburn on 12 July 1999 an indictment against two accused, Dean Anthony Privett and his brother Michael John Privett, charging that on or about 25 June 1996 at Gundaroo they did murder Dr Peter Browne Rowland.

2    On 7 July 1999 in Sydney counsel for the accused Dean Anthony Privett made two applications: first, that the venue be changed to a place other than Goulburn; and second, that he be tried separately from the co-accused. At the conclusion of the argument I refused the application for change of venue; having considered the matter overnight, on the following day I refused the application for separate trials. I now give my reasons for those rulings.

Venue:

3 Section 577 of the Crimes Act 1900 provides:

“577 In any criminal proceeding, if it is made to appear to the Court:
(a) that a fair or unprejudiced trial cannot otherwise be had, or
(b) that for any other reason it is expedient so to do,
the Supreme Court may change the venue, and direct the trial to be had in such other district, or at such particular place, as the Court thinks fit, and may for that purpose make all such orders as justice appears to require.”

The present application relied upon paragraph (a) of the section.

4    When an accused person seeks a change of venue on that ground, he/she bears the onus of demonstrating to the Court “that a fair or unprejudiced trial cannot otherwise be had”. Ordinarily it is desirable that the trial take place in the district where the crime was committed. It was held in Dorrington (1969) 1 NSWR 381 that “an exceptional case” must be shown in order to secure a change of venue; but that decision appears to me with respect to import into the section words that Parliament has not chosen to use. It appears to me with respect, that the section does not require so stringent a test as was expressed by the Court in Dorrington. It should be applied according to its terms. Certainly the practice of the Court in more recent years has tended not to set the standard so high.

5    In the present case it was contended that a fair or unprejudiced trial cannot be had at Goulburn because of the volume and nature of material published in the print media circulating in the Goulburn region, and the extent and nature of television coverage of the arrest of the accused men and of the committal proceedings.

6    An affidavit sworn by the solicitor for Dean Privett annexed copies of a large number of newspaper reports, and the originals were tendered at the hearing. They have been drawn from (a) the Goulburn Post, (b) the Yass Tribune, (c) the Border Mail, published in Albury, (d) the Sydney Daily Telegraph, (e) the Melbourne Age, (f) the Canberra Times, and (g) possibly other publications (for many of the items tendered are not clearly identified on their face). No doubt the Court can take notice, without any evidence, that the Goulburn Post is published in Goulburn; that Sydney newspapers such as the Daily Telegraph circulate in the Goulburn district, and that so too does the Canberra Times. Generally speaking, however, an accused who seeks to base an application for change of venue on newspaper publicity should show by evidence that the publications relied upon were circulated in the relevant area, that is the area from which a jury would be drawn.

7    The Crown conceded that each issue of the Border Mail is available in Goulburn, but made no such concession in regard to the Yass Tribune and the Melbourne Age. I doubt whether many, if any, in the jury pool would have seen either newspaper.

8    A video tape compilation of material broadcast by various television channels was also tendered, and I viewed it in court in the course of the hearing. It included excerpts from material transmitted on ABC TV and the Prime, WIN and Capital networks.

9    Counsel for the applicant conceded that nothing reported in the press or on television raised matters that were unlikely to come to the notice of the jury in any event through the evidence tendered in the course of the trial. He later (correctly in my view) qualified that concession - some of the material, particularly on television, was directed to informing or recalling to listeners/viewers the outstanding personal qualities of the deceased, a doctor active in treatment of victims of AIDS and in AIDS research and education. The prospect that that material, at least in any great detail or at any length, would get before the jury is slight. The material has the capacity to anger jurors and prejudice them against the killer or killers of Dr Rowland, but obviously does not at all bear on the question of the identity of the killer or killers, nor on any issue the jury will have to determine; and I see no reason to think that appropriate directions to the jury would not overcome any potential for prejudice. The newspaper clippings include a couple that refer to an assault upon Michael Privett whilst on remand in Goulburn Correctional Centre; and a report in the Canberra Times records a remark by the Governor of the prison that, “we believe it may be related to the charges he is facing”. Mr Young directed no submissions to that part of the material although it could conceivably work to the disadvantage of Dean Privett. Again I am satisfied that the usual direction to the jury to disregard media reports will avoid any significant prejudice.

10    In general, the tone of the newspaper reports and the television coverage was suitably restrained. There is no suggestion by counsel that any of it was inflammatory. There is no significant inaccuracy, such as would tend to mislead the jury to the prejudice of either of the accused.

11    In my opinion the applicant has, by a wide margin, failed to make out its case for a change of venue. For those reasons that application was refused.

Separate trials:

12    The principles applicable to such an application are clearly established. The starting point always is the desirability that all persons alleged to be concerned in the one crime be dealt with in the one trial: Grondkowski (1946) 1 KB 369; Oliver (1984) 57 ALR 543; Farrell and Cotton (1990) 48 A Crim R 311; Webb & Hay v The Queen (1993/94) 181 CLR 41. But as emphasised in all of those cases, that principle is subject to a most important qualification, expressed by Priestley JA in Oliver, thus: “unless positive injustice would be caused”.

13    The circumstances in which the holding of a joint trial would cause “positive injustice” cannot be exhaustively defined, but in most cases the principles that should guide the judge dealing with such an application are those stated by Hunt J in Middis & Ors (unreported, 27 March 19991, Supreme Court of NSW) in a judgment that has been often since approved by the Court of Criminal Appeal (see, for example, Baartman (unreported, 6 October 1994), Fernando (unreported, 14 April 1999), Georgiou (unreported, 25 May 1999)). Hunt J said:

“Briefly, the relevant principles are that:
1 Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accursed to be jointed tried with him;
2 where the evidence against those other accused contains material highly prejudicial tot he applicant although not admissible against him; and
3 where there is a real risk that the weaker Crown case against the applicant will 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.”

14    But the matter does not stop there as Street CJ pointed out in Guldur (1986) 3 NSWLR 12 at 16:

“The very concept of joint trials imports the likelihood that there may be particularly pockets of evidence admissible only against one of the co-accused.”
“Separate trials will not be directed in every case in which some evidence is admissible against one or some but not against all accused.” (per Hunt J in Farrell and Cotton supra , at 313)

15    The clear statement of principle provided by Hunt J in Middis should not be read without regard to his Honour’s consideration, later in the same judgment, of “the public interest in the efficient despatch of trials, the conserving of costs and the avoidance of any inconvenience to witnesses by having to attend a number of trials” (per Priestley JA in Oliver (supra)). Hunt J explained as follows the manner in which the basic principles are to be applied:

“An applicant for separate trials must demonstrate that there is a real risk (as opposed to a remote possibility) that there would arise in a joint trial prejudice of the type which - if it arises - would result in positive injustice to him”,

and that such prejudice outweighs the public interest in the matters identified by Priestley JA. In Jason Roy Richards (16 February 1998, Common Law Division, unreported), after referring to Middas , I said (at 6-7):

“The Crown submitted such prejudice as is likely to arise by the admission of the letter into evidence against Morris in the course of a joint trial is prejudice of a kind which can fairly readily be dispelled by appropriate directions to the jury. Obviously, there must always be a question as to whether prejudice resulting from the admission of inadmissible material is capable of being cured in that fashion. There are many cases where it cannot. In some cases it can readily be seen that the potential for prejudice is so great that no conceivable direction by a trial judge, no matter how strongly worded or how often repeated, can avoid it. I do not think this case is like that at all.
It is a relatively common experience that some evidence in a joint trial is admissible against some only of the accused and some evidence admissible against only others. Judges are accustomed to give directions to the juries as to what material may be taken into account against which accused and ordinarily the system proceeds on the assumption that the jury is capable of understanding and applying and will understand and apply directions of that sort. The need for such directions is obviously enhanced where the material admissible against one is not only inadmissible against the other but highly prejudicial. What has to be weighed in any such case is the level of prejudice likely to survive and operate upon the mind of the jury after they have received appropriate instructions. ”

16    I adhere to what I then said, which reflects the same confidence in juries as was expressed by Gleeson CJ (with the concurrence of Carruthers and Finlay JJ) in Coulstock & Summersford (9 October 1991, NSW Court of Criminal Appeal, unreported):

“The entire system of the administration of criminal justice depends upon the assumption that juries comply with directions and instructions that they are given by trial judges, including instructions as to the appropriate way in which to approach the problems that can arise in joint trials.”

17    I conclude my reference to the legal principles with a reminder to myself that the first condition identified by Hunt J relates not to the intrinsic strength or weakness of the case against the applicant, but to its comparative strength or weakness when compared with the case against the co-accused. As the Chief Justice pointed out in Baartman (supra), that condition may well be satisfied even where the case against the applicant can be described as “formidable”.

18    Shortly, the Crown case here is:

· that on the evening of 25 June 1996 the accused Dean Privett and one Gary Teale set out from Yass in a car owned and driven by Teale

· that Dean Privett was the instigator of the venture, the purpose of which was to steal some tools,

· that Dean Privett directed the operation which involved first a relatively short trip to a property near Yass,

· that access to the property was blocked by a chained gate and that Dean Privett directed the driver to return to Yass where he obtained some bolt cutters,

· that at Dean Privett’s home in Yass, the two in the car were joined by the accused Michael Privett and Byron Spencer,

· that the car was again driven to the same property where all four entered a shed where they found a quantity of tools, which they stole,

· that they returned to Yass where the tools were secreted in the backyard of premises occupied by Dean Privett,

· that Dean Privett then directed the driver to take them to Dr Rowland’s property at Gundaroo,

· that Dean Privett wished to steal one or more generators, for which he had a likely buyer,

· that Dean Privett was familiar with that property having done some work there in connection with the house which Dr Rowland was building and expressed to the others the belief that generators could be obtained there,

· that en route to each property Dean Privett distributed surgical rubber gloves to each man to wear during the theft,

· that en route Dean Privett produced and loaded a twelve gauge shotgun,

· that at the property Gary Teale remained with the car while the other three climbed over a fence or gate and approached the two sheds in one of which a light was burning, that while Byron Spencer went to search the other shed the two accused approached the lighted shed,

· that when he left the car Dean Privett was carrying the loaded shotgun,

· that Michael Privett kicked down the door and both accused entered the shed,

· that four or five shots were then fired, one shot striking and killing Dr Rowland and some of the others striking and killing his Great Dane dog,

· that shortly before that date Dean Privett had acquired a twelve gauge shotgun,

· that ammunition for that weapon, indistinguishable from that in fact used at the time of the killing, was located in Dean Privett’s home,

· that Dean Privett made no admissions when spoken to by police but advanced an alibi, which the Crown cannot disprove beyond reasonable doubt independently of proof that Dean Privett was at the scene of the crime in the circumstances set out above,

· that Michael Privett when first interviewed told police that he had gone to the place with Dean, Teale and Spencer, and in the circumstances described above, and that it was he who first entered the shed carrying the gun and that it was he who shot Dr Rowland, and

· that Michael Privett subsequently asked to be interviewed a second time, namely on 11 December 1996, and on this occasion retracted his claim to have been the one who fired the gun, saying that in fact it was Dean Privett who carried the gun and fired the fatal shot, and that he was unaware that Dean had taken the gun with him when they got out of the car at Dr Rowland’s property.

19    The bulk of the evidence to establish the Crown case is common to both accused, that is admissible against both. True, it largely depends on the evidence of two accomplices about which the jury will need to be appropriately warned, but a reading of Teale’s statement and Spencer’s two recorded interviews reveals nothing to suggest that the material evidence that each can give is any way suspect. They give a clear and quite circumstantial account of the whole evening’s activities, the logic of which supports the veracity of their evidence that Dean Privett was, contrary to Dean Privett’s own assertion, present at Dr Rowland’s property and closely involved in whatever took place there. Nor is there anything to suggest any collusion between them.

20    There appears to be no evidence admissible against Dean Privett which is not also admissible against his co-accused (in so saying, I observe that since the ruling that there be a joint trial but before preparation of these reasons, I have made a further ruling excluding evidence of part of a conversation between Dean Privett and police which, had it been admitted, might have been available against him but not against his co-accused as evidence of a lie manifesting a consciousness of guilt). Evidence of Dean’s possession of a shotgun such as was used in the killing on the day before the killing appears to me to be admissible against Michael Privett, as tending to support the Crown case that Dean Privett had a gun with him at the farm, but I make that observation conscious that neither counsel has yet addressed any submissions to that question.

21    The evidence admissible against Michael Privett but not admissible against his brother comprises his two recorded interviews.

22    In making an assessment as to whether (in terms of Middis) “the evidence against [Dean] is significantly weaker than and different to that admissible against [Michael]”, it is necessary to keep well in mind what it is that the Crown must prove against either man to establish that he is guilty of murder. The Crown does not have to prove against either that it was he, and not the other, who fired the fatal shot, though as I understand the way the Crown will put the case to the jury, it will allege that Dean Privett was the gunman, and that Michael Privett was an accessory present and aiding and abetting, or was party to a joint enterprise to steal or, if the place was occupied, to rob, and contemplated the significant risk that Dean Privett would use the gun with intent to kill or do grievous bodily harm. In the alternative, the Crown will assert that each was present and each was either principal in the first degree or an accessory aiding and abetting, so that it would not be necessary for the Crown to prove which was which. Further, the Crown will allege in the alternative that each was guilty of felony murder.

23    The principle issues which will arise seem therefore to be these - as to Michael Privett, whether it is proved beyond reasonable doubt that he knew that Dean was armed with the shotgun when they left the car to go to the shed: if that is not proved, the Crown will have failed to prove (a) that Michael was party to a joint enterprise to kill, or (b) was accessory aiding and abetting Dean, the actual killer; and will have failed to prove (c) that Michael contemplated use of the gun with malicious intent; and will have failed to prove (d) that Michael was party to one or other of the foundational crimes relied on by the Crown to support felony murder, namely robbery while armed with a dangerous weapon (s97(2)) and break, enter and steal in circumstances of special aggravation, that is to say being armed with a dangerous weapon (s112(3)). There will, as to proposition (c), be a further issue: whether, even if he knew that Dean was armed, Michael in fact contemplated use of the gun with malicious intent. The Crown would have to show also that he knew or had reason to believe (contrary to his denial) that the shed was occupied.

24    As to Dean Privett: whether it is proved beyond reasonable doubt (contrary to his claimed alibi) that he was one of those who went to the scene in Teale’s car, and if so, whether it is proved that he shot Dr Rowland or aided and abetted Michael Privett as the shooter.

25    The case against Michael Privet is not as strong as may at first appear. His first interview is obviously inculpatory, but some parts of it appear relatively easy to test and probably refute; he is in a position to give what the jury might find to be a cogent explanation of his having shouldered the blame (namely, to shelter Dean - see the evidence of Tracey Barbie); and in his second interview he strongly asserts that he did not know that Dean took the gun (which Michael claims to have first seen in the car just before arrival at the property) when he got out of the vehicle.

26    The case against Dean rests on the evidence of Teale and Spencer, both accomplices, but there is, as I have observed, a consistency between them and a fairly circumstantial demonstration of a credible sequence of events, not readily explained on the basis of collusion. There are other small pieces of evidence which may give support to their account (especially evidence which suggests that Dean borrowed money between the first and second ventures) which is at least consistent with their claim that he did so in order to provide petrol for the second excursion.

27    I am not persuaded that the case against Michael, although somewhat different to that against Dean because of the two recorded interviews, is significantly stronger than the case against Dean himself. Further, the evidence admissible against Michael, which makes that difference, adds to the strength of the case against him and is capable of prejudicing Dean’s position, consists of the two recorded interviews, that is to say, of a discrete and easily identified body of evidence. That is a circumstance which greatly facilitates the giving at trial of clear instructions to the jury to put that evidence out of mind while considering the case against Dean and encourages a belief that a jury thus instructed would have no difficulty in understanding what is required of them and little difficulty in abiding by the instructions given so as to true verdict in terms of their oath. Looking at “the level of prejudice likely to survive and operate upon the mind of the jury after they have received appropriate instructions”, I am not satisfied (in terms of Middis) that “there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material”.

28    For those reasons the application for separate trials was refused.

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Last Modified: 11/10/1999