Suppressed
[2021] WASC 246
•22 JULY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CARUANA [2021] WASC 246
CORAM: MCGRATH J
HEARD: 21 JUNE 2021
DELIVERED : 22 JULY 2021
FILE NO/S: INS 5 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
VENCENT STEPHEN CARUANA
Accused
Catchwords:
Criminal law - Practice and procedure - Application for separate trials - Whether charges properly joined - Whether likely prejudice to the accused - Whether directions could guard against likely prejudice
Legislation:
Criminal Procedure Act 2004 (WA), s 133
Result:
Application for separate trials refused
Category: B
Representation:
Counsel:
| Prosecution | : | Mr P M Usher |
| Accused | : | Mr S Vandongen SC |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Holborn Lenhoff Massey |
Case(s) referred to in decision(s):
Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20
Herbert v The State of Western Australia [2016] WASCA 235
Kalani v The State of Western Australia [2013] WASCA 132
R v Braysich [2006] WASCA 220; (2006) 166 A Crim 109
R v Middis (Unreported, NSWSC, 27 March 1991)
Russell v The State of Western Australia [2011] WASCA 246
Smith v The Queen [2007] WASCA 163
The State of Western Australia v Bowen & Anor [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Carlino [2014] WASC 174
The State of Western Australia v Karolides [2017] WASCA 111
The State of Western Australia v Russell [2009] WASCA 154
Zammit v The State of Western Australia [2007] WASCA 66
MCGRATH J:
Introduction
Mr Caruana and Mr Scofield are each charged on a joint indictment that pleads two separate counts.[1] The first count alleges that on 13 August 2019, Mr Caruana murdered Kayla Rose Halnan contrary to s 279 of the Criminal Code (WA). The second count alleges that between 13 August 2019 and 9 October 2019, Mr Scofield attempted to pervert the course of justice by knowingly giving a false statement so as to prevent Mr Caruana being prosecuted on a charge of murder contrary to s 143 of the Criminal Code.
[1] Indictment dated 11 May 2021.
The application by Mr Caruana contends that the count against him has not been properly joined with the count preferred against Mr Scofield on the same indictment.[2] Mr Caruana in the alternative contends that if the counts are permissibly joined then an order should be made under s 133(4) of the Criminal Procedure Act 2004 (WA) that he be tried separately from Mr Scofield for the reason that he is likely to be prejudiced in his trial. Mr Scofield has not made an application that the count preferred against him be tried separately and does not intend to do so.[3]
[2] Application for a separate trial dated 19 May 2021.
[3] ts 48 (21/06/2021).
For the following reasons, I have determined that the two counts on the indictment are permissibly joined and further that the likelihood of Mr Caruana being prejudiced in the trial can be guarded against by directions to the jury. Therefore, I decline to exercise the discretion under s 133 of the Criminal Procedure Act.
In these reasons, I will consider the following:
1.The State's case.
2.Relevant legal principles.
3.An assessment of whether the counts are properly joined.
4.An assessment of whether a separate trial should be ordered pursuant to s 133 of the Criminal Procedure Act.
The State's case
A succinct outline of the prosecution case against Mr Caruana is provided by the statement of material facts that forms part of the prosecution's brief of evidence. I also rely upon the State's written submissions in discerning the prosecution case at trial.
Mr Caruana and the deceased had been in an extra-marital relationship for a 12-month period. At 3.07 pm on Tuesday 13 August 2019, Mr Caruana attended the premises of a factory named Action Asbestos in Welshpool. Mr Caruana had possession of a .22 calibre firearm with a silencer inside an orange and black Northface brand backpack that he carried from his vehicle to the inside of the factory. Mr Scofield was present in the factory.
After the factory closed Mr Caruana and Mr Scofield spent the evening smoking methylamphetamine and taking Oxycodone (Oxycontin) tablets within the office area of the factory.
At 7.38 pm the deceased arrived at the premises and entered the rear office area and began consuming the prohibited drugs with Mr Caruana and Mr Scofield.
At about 10.20 pm Mr Caruana produced the firearm and discharged it. As a result, a ballistic round penetrated the deceased's left side torso through her rib cage. At the time that Mr Caruana discharged the firearm, Mr Scofield was present.
At 10.29 pm Mr Scofield telephoned St Johns Ambulance (SJA) and began performing CPR on the deceased. Being aware that ambulance officers and police would be attending the location, Mr Caruana dismantled the firearm into pieces and left the office area to hide the parts in multiple locations.
After secreting the firearm Mr Caruana continued CPR on the deceased prior to SJA's arrival at 10.38 pm.
At 10.55 pm police attended the scene and arrested both Mr Caruana and Mr Scofield on suspicion of grievous bodily harm.
Despite receiving emergency medical treatment the deceased was declared dead at 11.25 pm.
Both Mr Caruana and Mr Scofield were arrested on suspicion of murder.
Both men were interviewed by Homicide Squad Detectives and extensive inquiries were conducted.
During his interview Mr Caruana denied any involvement in the death of the deceased, however he made certain admissions in regards to the firearm.
On 13 August 2019 Mr Caruana was arrested in respect of the allegation of murder.
Mr Scofield was interviewed by the police on four occasions, being on 14 August 2019 (first interview), 14 August 2019 (second interview), 22 August 2019 (third interview) and 9 October 2019 (fourth interview). Further, Mr Scofield provided a written statement to the police dated 16 August 2019.
On 18 October 2019 Mr Scofield was charged with attempting to pervert the course of justice. The State contends that during the four interviews and in his written statement, Mr Scofield told lies and thereby attempted to pervert the course of justice.
During the first interview Mr Scofield stated that he was 15 metres away from the deceased and that he heard a bang that sounded like a firecracker. As a consequence he 'went there' and thought the deceased was having a convulsion, and that when he walked back into the room Mr Caruana was not there and that he did not know where Mr Caruana was.[4]
[4] State's written submissions [9].
During his second interview Mr Scofield stated that he was not in the office and it was seconds after he was in the office that he saw Mr Caruana behind the door.[5]
[5] State's written submissions [10].
During his third interview Mr Scofield stated that he was in the workshop returning a light bar retrieved from a vehicle when he heard a firecracker.[6]
[6] State's written submissions [12].
During his fourth interview Mr Scofield stated that what he had said before concerning being in the workshop when the firecracker sound happened is exactly what happened.[7] When asked whether he agreed that he had not told the police everything Mr Scofield stated that he could not recall because he had a knock to the head earlier that day.
[7] State's written submissions [13].
In his written statement Mr Scofield stated that he was not in the office when the incident occurred.[8] Mr Scofield stated that he was in the workshop area when he heard a loud bang from the office area. He returned to the office and observed the deceased in a chair and that Mr Caruana was not in the office at that time. Mr Caruana first appeared some 5 to 10 seconds later.[9]
[8] State's written submissions [11].
[9] State's written submissions [11].
The State particularises the course of conduct alleged to constitute the attempt to pervert the course of justice as comprising the following false statements:[10]
1.At the time Mr Scofield heard what he thought was a firecracker/bang, he was in the workshop area and not in the office area.
2.Mr Scofield was in the workshop area to return/put a light bar back inside an off-road buggy.
3.Mr Scofield was out of the office area for about 2 minutes.
[10] State's written submissions [7].
The State contends that Mr Scofield was present in the office and was present when Mr Caruana discharged the firearm and killed the deceased. The State contends that Mr Scofield observed the killing. The State relies upon CCTV footage to prove that Mr Scofield was not in the warehouse at the time of the killing but was in the office. Further, the State relies upon admissions made by Mr Scofield to Ms Palermo and Mr LeClus that he observed the discharge of the firearm and the killing of the deceased.[11] The State will prove that Mr Scofield knew that the particularised utterances to the police were lies by proving that Mr Scofield was present when the firearm was discharged and therefore observed the killing of the deceased.
[11] State's written submissions [15] - [19].
The State does not contend that Mr Scofield was involved in the killing nor in any way criminally responsible for the killing of the deceased. Further, the State does not contend that Mr Scofield was an accessory after the fact. The State's case is that Mr Scofield knew that Mr Caruana had been arrested and charged with an offence of murder and therefore knowingly lied to the police, and that those lies had the tendency to pervert the course of justice by preventing Mr Caruana from being prosecuted for murder and that was his intention. The State submitted that to prove the offence against Mr Scofield the State intended 'to lead evidence that Scofield lied to the police in the course of justice, those lies having the tendency to pervert the course of justice, with the knowledge that it was the applicant who shot and killed Kayla Halnan and that if he told the truth that it was the applicant who shot and killed Kayla Halnan, Mr Scofield's intention being to prevent the applicant from being prosecuted for murder'.[12]
[12] State's written submission [6].
Procedural history
On 13 August 2019, Mr Caruana was arrested in respect of the allegation of murder. On 16 August 2019, Mr Caruana appeared in the Stirling Gardens Magistrates Court.
On 26 February 2020, Mr Caruana pleaded not guilty and was committed to stand trial. On 24 April 2020, the State filed an indictment pleading solely one count against Mr Caruana. On 3 September 2020, Mr Caruana's trial was listed to be held between 9 June and 30 June 2021.
On 18 October 2019, Mr Scofield was charged with attempting to pervert the course of justice. Mr Scofield pleaded not guilty and was committed to the District Court. On 29 April 2021, the Director of Public Prosecutions informed the legal practitioners representing Mr Caruana that the State had made an application in the District Court to transfer the indictment pleading the count against Mr Scofield to the Supreme Court.
On 12 May 2021, the State filed the joint indictment pleading the two respective counts. On 17 May 2021, the joint indictment was first mentioned in the Supreme Court. On 19 May 2021, the application for separate trials by Mr Caruana was filed. Consequently, the trial dates for Mr Caruana were vacated.
Relevant legal principles
Section 85(1) and (2) of the Criminal Procedure Act provides that sch 1 of the Act has effect in relation to indictments and charges in them and an indictment must comply with the requirements of sch 1, div 2.
Clause 7(3) of sch 1, div 2 of the Criminal Procedure Act provides:
(3)A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences -
(a)form or are a part of a series of offences of the same or a similar character; or
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.
Clause 9(1) of sch 1, div 3 provides as follows:
If one prosecution notice or indictment contains 2 or more charges the charges must be tried together unless a court orders otherwise under this Act.
In this case the State relies on the second limb of cl 7(3), being that the accused are jointly charged in one indictment for the reason that the charges arise substantially out of the same or closely related acts or omissions.
Where multiple charges are properly joined in one indictment they must be tried together unless a court orders otherwise.[13] The prima facie position that there should be joint trials is not easily displaced.[14] The public policy behind that is because a joint trial promotes consistency in decision making and facilitates a single inquiry into matters which arise out of, or essentially involve, common issues of facts or law. A joint trial will also promote the due and expeditious administration of criminal justice, including saving court time and public expense and the avoidance of unnecessary inconvenience for witnesses.[15]
[13] Clause 9 of sch 1, div 3 of the Criminal Procedure Act 2004 (WA).
[14] The State of Western Australia v Bowen & Anor [2006] WASCA 133; (2006) 32 WAR 81 [30].
[15] Russell v The State of Western Australia [2011] WASCA 246; Kalani v The State of Western Australia [2013] WASCA 132 [72].
Clause 7(3) was considered by the Court of Appeal in Zammit v The State of Western Australia:[16]
Clause 7(3)(b) of the Schedule seems to me to be wider in its formulation than the UK and Queensland provisions. It is also wider than its predecessor, s 585(2) of the Code. I have mentioned that the words 'be constituted by' in the former provisions of s 585(2) have been replaced, in cl 7(3)(b), with the words 'arise substantially out of' (used in s 586(7) of the Code) and that the words 'the same acts or omissions' have become 'the same or closely related acts or omissions' (the words 'or closely related' having also been used in s 586(7)).
In Russell ((No 2) [1965] Qd R 334), the Full Court of the Supreme Court of Queensland, referring to s 568(6) of the Criminal Code (Qld), said (at 337) that the question of whether one set of facts is closely related to another is simply one of degree. There the two sets of facts were found to be closely related because they were related in time, place, the nature of the crime, the identity of the victim and the circumstances in which each offence was allegedly committed. Russell appears to have been approved by the High Court in Mackay v The Queen (1977) 136 CLR 465 at 469, per Barwick CJ, Gibbs and Mason JJ. In Rintel ([1986] WAR 175), Franklyn J pointed out that, while both cases dealt with joint charges of rape, they clearly indicate what is contemplated by the expression 'closely related facts'.
Considered against this background, it seems to me that the expression 'arise substantially out of … the same or closely related acts or omissions' is intended to have a relatively wide reach. So to read the expression is consistent with the cases suggesting that such provisions are not to give an unduly restrictive meaning, especially when regard is had to the broad discretion given to the Court by s 133 of the Act or equivalent provisions: see De Jesus ((1986) 61 ALJR 1) at 9; Kray ([1970] 1 QB 125) at 131; Ludlow ([1971] AC 29) at 39 - 40 and Barnes ([2001] WASCA 86) at [12]; but cf Cranston ([1988] 1 Qd R 159) at 164 - 165 and Anderson ([1994] 2 Qd R 409) at 412 - 413.
[16] Zammit v The State of Western Australia [2007] WASCA 66 [37] - [39].
Section 133 of the Criminal Procedure Act relevantly provides as follows:
(1)The powers in this section may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.
(2)A court may amend or cancel an order made under this section.
(3)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -
(a)that the accused be tried separately on one or more of the charges; and
(b)the prosecutor to tell the court the order in which the charges will be tried.
(4)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
(5)In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
The discretion to order separate trials under s 133(4)(b) is not enlivened until the court is satisfied on reasonable grounds that an accused is likely to be prejudiced in the trial and that the likely prejudice is caused by the fact that the indictment also charges one or more other accused.
The likely prejudice must be actual, not assumed, and must be in the trial itself.[17] That is, the matters said to give rise to the likely prejudice must affect what happens in the trial. A trial judge cannot act on speculation or hypothesis regarding how other accused may conduct their cases.[18]
[17] The State of Western Australia v Karolides [2017] WASCA 111 [25].
[18] The State of Western Australia v Russell [2009] WASCA 154 [56].
If the trial judge decides that an accused would be likely prejudiced in a joint trial then the discretion to sever the indictment is enlivened. If the discretion is enlivened the overriding question in exercising the discretion is whether separate trials are required to ensure that the accused receive a fair trial.[19] In determining whether to exercise the enlivened discretion regard must be had to whether any prejudice can be adequately guarded against by giving appropriate directions to the jury.
[19] The State of Western Australia v Bowen& Anor [2006] WASCA 133; (2006) 32 WAR 81 [67].
In deciding whether any likelihood of prejudice can be guarded against by a direction to the jury it must be presumed that the jury will accept and faithfully apply the trial judge's directions.[20]
[20] Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22.
The question of whether a direction can adequately guard against the prejudice to an accused from evidence that is admissible only against a co-accused will ordinarily involve two issues. First, will the jury be capable, as an intellectual exercise, of performing the task required of them at trial; and second, is the prejudice likely to be so great in the circumstances that it would not be reasonable to expect the jury to leave the prejudicial evidence out of account against the particular accused, even though it is inadmissible against him.[21]
[21] The State of Western Australia v Bowen & Anor [2006] WASCA 133; (2006) 32 WAR 81 [32].
It is not uncommon that in a trial with two or more accused that one accused will have made an out of court statement that implicates another accused in the trial. In such circumstances, the State will seek to adduce evidence of the out of court statement in the case against the maker of the statement but not against the other accused who is implicated by the statement. Ordinarily, a direction that the jury must not use the statement as evidence in the case of the other accused will be sufficient to ensure a fair trial. However, there are occasions where an out of court statement is so prejudicial to the co-accused that it cannot be assumed that the prejudice will be removed by a direction to the jury.
The trial judge is required to direct the jury when evidence which is inadmissible against one accused is led against another accused in a joint trial. The jury must be directed of the limited use that may be made of the evidence at the time that it was elicited, as well as in the trial judge's summation. The trial judge must clearly identify the evidence and direct the jury in respect of its use in the case against each accused.
In R v Middis,[22] Hunt J stated that a separate trial will usually be ordered where the evidence against one accused is significantly weaker than against others; where the evidence against the others contains material that is highly prejudicial to the accused, although inadmissible against him; and where there is a real risk that the weaker prosecution case against the accused will be made immeasurably stronger by reason of the prejudicial material. In Zammit v The State of Western Australia[23] the Court of Appeal observed that, whilst the observation of Hunt J has been accepted in the Court of Appeal of New South Wales, the factors are not exhaustive nor are they a substitute for the application of s 133 of the Criminal Procedure Act.
[22] R v Middis (Unreported, NSWSC, 27 March 1991).
[23] Zammitt v The State off Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [64].
An assessment of whether the counts are properly joined
The State relies upon cl 7(3)(b) of sch 1 of the Criminal Procedure Act contending that Mr Scofield's alleged offending arises substantially out of the same or closely related acts or omissions as the offence of murder alleged against Mr Caruana.
The State submits that, whilst Mr Scofield was not involved in the killing nor was an accessory after the fact, the prosecution case against him is based on the factual foundation that he was present at the time of the killing and that he 'was aware of who killed the victim and by what means that person killed the victim'.[24]
[24] State's written submissions [33].
The State's case is that Mr Scofield lied to the police during his interviews in circumstances when he knew that Mr Caruana had been (or was likely to be) arrested and charged with the offence of murder and that those lies had the tendency to pervert the course of justice by preventing Mr Caruana from being prosecuted for murder and further, that Mr Scofield held that intention.
The State must prove that the relevant contents of Mr Scofield's written statement dated 16 August 2019 and the answers given in his records of interview of 14 August 2019, 16 August 2019 and 9 October 2019 respectively were false.
The State contends that there is a connection in time, place and circumstance between the offence preferred against Mr Scofield and the offence preferred against Mr Caruana. That connection arises from the necessity for the State to prove that Mr Scofield was present in the office area at the time of the killing of the deceased and that he therefore had knowledge of the killing and that he therefore knows that Mr Caruana killed the deceased. The State submits that the 'case against Mr Scofield does depend upon proof that Kayla Halnan was killed by the applicant as otherwise there is no connection to a police investigation for murder'.[25] Mr Scofield knew about the investigation because he was present at the very time that the offence occurred.
[25] State's written submissions [38].
The State submits that, whilst the nature of the charges against each accused is different, the facts relevant to the proof of the charge preferred against Mr Scofield have a commonality with the evidence against Mr Caruana. This commonality supports the finding that the alleged offence by Mr Scofield does arise substantially out of the same or closely related acts or omissions as those against Mr Caruana.
Counsel for Mr Caruana submitted that whilst 'it might be accepted' that Mr Scofield's conduct occurred in the context of the investigation into the alleged murder of the deceased, it does not follow that Mr Scofield's offence is alleged to have arisen substantially out of the same or closely related acts or omissions for the purposes of cl 7(3)(b).[26] Rather, the allegation of attempting to pervert the course of justice arises from Mr Scofield's alleged act of making a false statement, the tendency of that false statement to pervert the course of justice, and the question of whether Mr Scofield had the relevant intention at the time.
[26] Mr Caruana's written submissions [28].
Mr Caruana submits that the offences do not arise out of the same or closely related acts or omissions. The offence alleged against Mr Caruana is that he murdered the deceased, and the offence alleged against Mr Scofield is that he told lies to the police on later dates and that the lies had the tendency to pervert the course of justice.
Mr Caruana contends that proof that Mr Scofield committed the offence charged does not require proof that Mr Caruana committed the offence of murder or that he killed the deceased. The State need only prove that there is an actual or potential relationship between Mr Scofield's alleged conduct and some pending or possible curial proceedings whose course he intended to pervert.[27]
[27] Mr Caruana's written submissions [31].
In support of the application reliance is placed on The State of Western Australia v Carlino[28] where Hall J determined that the third accused, having been charged with attempting to pervert the course of justice, was not properly joined with the accused who was charged with murder. The application was made by the accused charged with attempting to pervert the course of justice.
[28] The State of Western Australia v Carlino [2014] WASC 174.
A finding based upon the particular facts in one case is not a statement of principle that has binding application in other cases. In the case of The State of Western Australia v Carlino the case against the particular accused charged with perverting the course of justice did not depend upon proof that the deceased was murdered and that his body was disposed of. Rather, the relevant acts and omissions of the particular accused charged with perverting the course of justice were not in any substantial or material way closely related to the accused charged with murder. The police told the particular accused that an investigation was being conducted in respect of a murder. The particular accused then denied in his record of interview that he had permitted anyone to use his boat. In the present matter, the case against Mr Scofield does depend upon proof that he was present and observed Mr Caruana discharge the firearm and kill the deceased. That is the State case at trial. This does support a conclusion that the alleged offence by Mr Scofield does arise substantially out of the same or closely related acts or omissions.
I am mindful that the false statements to the police occurred at a different time and place than the acts that constitute the allegation against Mr Caruana. Certainly, the elements of each offence are different. However, properly understood the offence alleged against Mr Scofield is inextricably linked to the acts that are alleged to have been undertaken by Mr Caruana in causing the death of the deceased on 13 August 2019. In this case the attempting to pervert charge against Mr Scofield could not be alleged but for him deliberating lying to the police concerning the killing which he observed.
Accordingly, the two counts are properly joined under cl 7(3)(b) for the reason that the two offences arise substantially out of the same or closely related acts or omissions.
An assessment of whether separate trials should be ordered
Counsel for Mr Caruana submitted that in order for the State to establish the offence of attempting to pervert the course of justice the State must prove that the act of lying to the police not only had the tendency to pervert the course of justice but also that Mr Scofield intended (by his act of lying to the police) that it would have that effect.
Mr Caruana particularised in his written submissions three matters from which prejudice will arise, being:[29]
1.Evidence adduced by the State to establish that Mr Scofield intended to pervert the course of justice will be inadmissible against Mr Caruana. However, that evidence has a prejudicial effect in that there is a real risk that the jury might impermissibly use that evidence (and any conclusions reached) about Mr Scofield's state of mind against Mr Caruana in deciding whether he is guilty of the offence of murder.[30]
2.If the State's case is that Mr Scofield made a false statement in order to prevent the prosecution of Mr Caruana because he was scared or felt threatened by Mr Caruana there is prejudice. That is, there is a real risk that the jury might be prejudiced against Mr Caruana on the basis of the evidence adduced for the purpose of establishing a motive for Mr Scofield to make the false statements.[31]
3.There is a risk that Mr Scofield's various statements made to the police and other persons, which are inconsistent with one another, could potentially be used impermissibly by the jury to strengthen or reinforce their satisfaction that the only reasonable inference that can be drawn from the admissible evidence against Mr Caruana is that he was involved in the deceased's killing.[32]
[29] Mr Caruana's written submissions [43] - [45].
[30] Mr Caruana's written submissions [43].
[31] Mr Caruana's written submissions [44].
[32] Mr Caruana's written submissions [45].
Counsel for Mr Caruana during oral submissions contended that the principal concern is the prejudice from the evidence relied upon by the State to prove that Mr Scofield had the intention to pervert and any finding of the jury based on that evidence. First, I will briefly deal with the other two concerns before considering the primary concern of Mr Caruana.
In respect of the contention that the State may particularise its case that Mr Scofield was threatened or feared Mr Caruana, the State disavowed that proposition. The State has no evidentiary basis to make that assertion and therefore, the State will not conduct its case on that basis. Therefore, I find that there is no possible prejudice to Mr Caruana. The jury may be directed, to the extent necessary, that the State does not contend that Mr Scofield was motivated to make utterances because he felt threatened. Given the State's case that direction would appear unnecessary.
In respect of the contention that the prior inconsistent statements of Mr Scofield may strengthen the State's case, this is a matter that will be cured by judicial direction. The jury will be directed that the prior out of court statements of Mr Scofield are only admissible against him and not Mr Caruana. It is most common that in a joint trial of two accused the out of court statements of one accused are not admissible against the other accused. Further, the jury will be directed that prior inconsistent statements are relevant only to the jury's assessment of Mr Scofield's credibility. The jury will be directed that they must assess whether Mr Scofield has made a prior inconsistent statement or statements and then determine whether or not that inconsistent statement is relevant to and affects their assessment of his credibility. The extent to which there may be prejudice to Mr Caruana, that prejudice will be cured by judicial direction.
I now turn to the principal argument of Mr Caruana, being that evidence adduced by the State to establish that Mr Scofield intended to pervert the course of justice will be inadmissible against Mr Caruana. Further, that the jury will be invited by the prosecution to make the finding that Mr Scofield knew or believed that Mr Caruana discharged the firearm and thereby killed the deceased. Counsel for Mr Caruana submitted that significant prejudice arises from that finding and that the prejudice cannot be guarded against by judicial direction.[33]
[33] ts 54 - 55 (21/6/2021).
The State will necessarily rely upon evidence in its case against Mr Scofield that will not be admissible against Mr Caruana. Consideration must be given to whether the evidence could be 'quite readily segregated and distinguished'[34] as opposed to being a 'complicated mixture' of admissible and inadmissible evidence as between the two accused which the jury could not reasonably be expected to analyse in detail. Put another way is to consider whether the jury will be required to disentangle evidence or findings.[35]
[34] R v Braysich [2006] WASCA 220; (2006) 166 A Crim 109 [53].
[35] Herbert v The State of Western Australia [2016] WASCA 235 [46]; Smith v The Queen [2007] WASCA 163 [40].
The State submitted that not all the evidence to be called in the trial of Mr Scofield will be admissible against Mr Caruana. The State particularises that the evidence that is admissible against Mr Scofield and not Mr Caruana comprises Mr Scofield's written statement dated 16 August 2019, the four records of interview conducted by the police and the admissions made to Ms Palermo and Mr LeClus. The State contends that the remaining evidence to be relied upon in the trial of Mr Scofield is admissible against both Mr Scofield and Mr Caruana. That evidence comprises, in part, the CCTV footage, the emergency services telephone call, the police officers who attended the crime scene, the police officers who executed search warrants and seized firearm parts, forensic officers, including a ballistics expert, and the post-mortem examination. Further, the State proposes to lead evidence from four witness who are not investigating officers being Ms Tania Scofield, Ms Julietta Pedulla, Mr Samuel Hacking and Mr Farzad Jahangirian. It is clear that in the trial of Mr Scofield, whether joint or not, evidence will necessarily be led to prove the circumstances of the killing of the deceased.
At the hearing of this application Mr Caruana did not dispute the State's particularisation of the evidence that was only admissible against Mr Scofield and that part of the evidence was also admissible against both Mr Caruana and Mr Scofield.
I am of the view that the evidence that the State proposes to lead in a joint trial that is admissible only against Mr Scofield is readily segregated and distinguished. The trial would not involve a complicated mixture of admissible and inadmissible evidence. The evidence that is only admissible against Mr Scofield comprises his utterances to the police officers in the four interviews and in his written statement and further, Mr Scofield's utterances to Ms Palermo and Mr LeClus. That evidence is identifiable.
The utterances made by Mr Scofield in his four interviews and in his written police statement are not prejudicial to Mr Caruana. Mr Scofield does not implicate Mr Caruana in the killing of the deceased. To the contrary, the State contends that the utterances in the interview are lies that exculpate Mr Caruana. In short, Mr Scofield contends that Mr Caruana was not present in the office area when the deceased was shot.
However, the utterances made to Ms Palermo and Mr LeClus are prejudicial to Mr Caruana. The utterances comprise statements that directly implicate Mr Caruana in the killing of the deceased. That evidence is hearsay in any trial of Mr Caruana unless Mr Scofield gives evidence at trial that adopts those statements. Therefore, in a joint trial the jury must be directed that the out of court utterances are only admissible against Mr Scofield and that the utterances are inadmissible against Mr Caruana. It is not uncommon for an accused to make out of court statements and for the jury to be directed regarding their admissibility against the other accused in a joint trial. Moreover, in a joint trial where each accused seeks to implicate the other, the accused person's utterances in their respective interviews may be highly prejudicial to the other accused. In such instances the trial judge will give a direction that the interview is admissible against the accused who made the utterances.
The trial judge will give directions to the jury concerning the limited use of the out of court utterances of Mr Scofield. The prejudice will be adequately guarded against by the trial judge's direction.
It is further contended by Mr Caruana that he will be prejudiced in the trial as the jury will be required to make the finding that Mr Scofield believed or knew that Mr Caruana shot the deceased. That prejudice may be guarded against by judicial direction. The jury will be given a separate consideration direction. The jury will not be required to disentangle evidence or the findings made against either accused person. Rather, the jury will be directed that their task is to examine the case against each accused separately by reference to the evidence admissible against the respective accused that they are considering. The jury will be directed that they are performing the task of determining one distinct count against Mr Caruana and one distinct count against Mr Scofield. The jury will be directed to put aside the evidence and findings they may make in relation to one accused when considering the case against the other accused. The jury will be directed that they must not take into account, when they consider the State's case against Mr Caruana, the prejudicial evidence that is inadmissible against him. The jury will be directed not to take into account the findings made against Mr Scofield including a finding that he believed that Mr Caruana killed the deceased.
The learned trial judge will assess whether the jury should be given a separate trial direction and a direction concerning separate findings and the admissibility of evidence in the respective State cases at the commencement of the trial. Further, it may be anticipated that the learned trial judge will give a direction to the jury concerning the admissibility of the four records of interview, Mr Scofield's police statement and the particularised utterances made to third persons at the very time that the jury receives that evidence. The jury may at that time be given a separate consideration direction and directions concerning the use of findings.
I am satisfied that separate trials are not required to ensure that Mr Caruana receives a fair trial. The learned trial judge has the power to initiate, or upon application by either accused, revisit the question of separate trials if an unfairness that is not discernible at this time arises. The learned trial judge will determine whether the unfairness may be guarded against by judicial direction.
Conclusion
I am satisfied that given that the two counts on the indictment arise substantially out of the same or closely related acts or omissions they are properly joined on the same indictment. Further, I am satisfied that directions to the jury by the learned trial judge may guard against any likelihood of Mr Caruana being prejudiced in his trial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice McGrath
22 JULY 2021
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