Zreika v R

[2012] NSWCCA 33

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Billings v R [2012] NSWCCA 33
Hearing dates:	3 February 2012
Decision date:	16 March 2012
Before:	McClellan CJ at CL at [1] R A Hulme J at [27] Schmidt J at [28]
Decision:	Leave to appeal refused
Catchwords:	CRIMINAL LAW - appeal - s 5F - whether multiple counts should be heard together - where one count is a count of murder - whether evidence of one count is admissible in relation to another count
Legislation Cited:	Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	DAO v The Queen [2011] NSWCCA 63 (2011); 278 ALR 765 De Jesus v The Queen [1986] HCA 65; (1986) 22 A Crim R 375 DPP v Coelho, Tabbit and SPA [2007] VSC 137 Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 R v Pollit [1991] 1 VR 299 R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528
Category:	Interlocutory applications
Parties:	Craig Ronald Billings (Applicant) The Crown
Representation:	Counsel: J Stratton SC/A Webb (Applicant) S Bowers (Crown) Solicitors: O'Brien Solicitors (Applicant) Office of the Director of Public Prosecutions (Crown)
File Number(s):	2009/36209
Decision under appeal	Date of Decision: 2011-09-29 00:00:00 Before: Barr AJ File Number(s): 2009/36209

Judgment

1. McCLELLAN CJ at CL: The applicant has been charged with the murder of Raymond Brown on 4 February 2007. He has also been charged with the commission of a large number of offences in various parts of the Sydney metropolitan area between 13 December 2006 and 14 February 2007. Apart from the murder, most of the events from which the charges arise are said to have been armed robberies or attempted armed robberies.

1. The Crown originally presented an indictment containing 40 counts. The applicant pleaded not guilty to each charge. The Crown has also served notice on the defence under Part 3.6 of the Evidence Act 1995 stating its intention to adduce evidence of tendency and coincidence in relation to some of the counts. The tendency evidence in respect of a count is said to arise from the evidence proposed to be tendered in respect of other counts.

1. During some pre-trial hearings, the Crown recast the indictment and reduced the number of counts to 14, two of which are pleaded alternatively to other counts. The 14 counts comprehend 9 separate events.

1. The counts on the recast indictment are as follows:

1. On 21 December, at Randwick, in the State of New South Wales, the applicant, being armed with an offensive weapon, namely a shortened rifle, did rob Alan Veney of certain property, namely a bag containing personal papers, and at the time of the robbery did wound Alan Veney.

2. On 31 December 2006, at Greenacre, in the State of New South Wales, the applicant, whilst armed with an offensive weapon, namely a shortened firearm, did rob Ahmit Saini of certain property, namely a mobile telephone, two sets of car keys and a sum of money the property of Ahmit Saini.

3. On 31 December 2006, at Greenacre, in the State of New South Wales, the applicant, whilst in the company of another person, did assault Ahmit Saini with intent to take a motor vehicle, and took and drove a motor vehicle, namely, Mitsubishi Lancer YVG190, without the consent of Ahmit Saini.

4. On 6 January 2007, at Surry Hills, in the State of New South Wales, the applicant, whilst in the company of another person, did assault Elie Stambouli with intent to take a motor vehicle, and took and drove a motor vehicle, namely, Mitsubishi Lancer UYB468, without the consent of the owner Elie Stambouli.

5. On 7 January 2007, at Liverpool, in the State of New South Wales, the applicant whilst armed with a dangerous weapon, namely, a shortened rifle, did attempt to rob Luke Ray.

6. On 7 January 2007, at Miller, in the State of New South Wales, the applicant discharged a shortened rifle, with intent to cause grievous bodily harm to Luke Ray.

7. On 7 January 2007, at Liverpool, in the State of New South Wales, the applicant, whilst armed with a dangerous weapon, namely a shortened rifle, did attempt to rob Anthony Neale.

8. On 7 January 2007, at Miller, in the State of New South Wales, the applicant discharged a shortened rifle, with intent to cause grievous bodily harm to Anthony Neale.

9. On 20 January 2007, at Redfern, in the State of New South Wales, the applicant did shoot at Constable Justin Knight, with intent to murder Constable Justin Knight.

10. (in the alternative to 9) On 20 January 2007, at Redfern, in the State of New South Wales, the applicant did discharge a firearm at Constable Justin Knight, with intent to cause grievous bodily harm to Constable Justin Knight.

11. On 4 February 2007, at Canley Vale, in the State on New South Wales, the applicant did murder Raymond John Brown.

12. On 8 February 2007, at Cabramatta, in the State on New South Wales, the applicant, whilst armed with an offensive weapon, namely, a shortened firearm, did rob Judith Anderson of certain property, namely, approximately $225 in cash, the property of Woolworths Ltd, trading as BWS-Beer, Wine, Spirits, Cabramatta.

13. On 14 February 2007, at Canley Heights, in the State of New South Wales, the applicant did shoot at Molitoni Vakauta, with intent to murder Molitoni Vakauta.

14. (in the alternative to 13) On 14 February, 2007 at Canley Heights, in the State of New South Wales, the applicant did discharge a firearm with intent to cause grievous bodily harm to Molitoni Vakauta.

1. An application was made to the trial judge pursuant to s 21(2) of the Criminal Procedure Act 1986 seeking to have the murder count severed from the remaining counts and, in the alternative, that there be a more limited severing of some of the counts on the indictment. At the same time an application was made seeking that his Honour rule that evidence of various counts would be admissible on other counts as tendency or coincidence evidence.

1. Section 21 of the Criminal Procedure Act provides for the court to order a separate trial in the circumstances provided in sub-section (2):

"21 Orders for amendment of indictment, separate trial and postponement of trial

...

(2) If of the opinion:

(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or

(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,

the court may order a separate trial of any count or counts of the indictment.

..."

1. Both the primary application and its alternative were rejected by the trial judge. His Honour did not decide the issue of the admissibility of tendency or coincidence evidence. His Honour determined that, as the evidence was otherwise admissible, the issue of whether it could be used by the jury for coincidence or tendency purposes could await the receipt of the evidence during the trial.

1. The applicant seeks leave to appeal his Honour's decision pursuant to s 5F of the Criminal Appeal Act 1912. He pleads that "the learned trial judge erred in ruling that the 14 counts set out in the indictment filed by the Crown be heard together." It was submitted to this Court that in rejecting the application his Honour had given too much weight to the prospect of inconvenience to witnesses if there were multiple trials rather than the one trial of the 14 counts.

1. The trial judge had the benefit of a detailed discussion of the evidence which the Crown indicated it proposed to lead in relation to each count. He provided a summary of that evidence in his reasons. It is apparent that there is evidence which will be tendered in relation to counts 1, 7, 8, 13 and 14 which is relevant and probative in relation to count 11, the murder charge. With the exception of counts 5 and 6, there is evidence in relation to each remaining count which would probably not be directly admissible in relation to count 11, but would be relevant and admissible to at least one of counts 1, 7, 8, 13 and 14.

1. With respect to counts 5 and 6 there is no evidence proposed to be tendered in relation to that count which is relevant to any other count. However, it could be that evidence in relation to those counts is admissible as tendency or coincidence evidence. This has not yet been considered by the trial judge. There is evidence in relation to counts 5 and 6 which is proposed to be called from an informer who is also proposed to give evidence in relation to counts 2, 3, 5, 6, 9, 10, 11, 13 and 14.

1. After summarising the circumstances relating to each count the trial judge considered s 29 of the Criminal Procedure Act. That section is in the following terms:

"29 When more than one offence may be heard at the same time

(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:

(a) the accused person and the prosecutor consent,

(b) the offences arise out of the same set of circumstances,

(c) the offences form or are part of a series of offences of the same or a similar character.

(2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances:

(a) the accused persons and the prosecutor consent,

(b) the offences arise out of the same set of circumstances,

(c) the offences form or are part of a series of offences of the same or a similar character.

(3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

1. His Honour, exercising the power provided by s 29(1)(b) and (c), concluded (at [18]) that "some of the counts charge offences arising out of the same set of circumstances and that all charge offences of the same or of a similar character." Accordingly, his Honour considered s 29(3) to determine whether, in the interests of justice, any or all of the matters should be heard separately. His Honour said (at [19]-[25]):

"The Crown Prosecutor estimates that a joint trial on the indictment as it stands would last for three months. Mr Webb, for the accused, says at least three months. Even by today's standards, three months is a long trial and brings it own pressures on everyone concerned, not least on the members of the jury. A significantly shorter trial is to be preferred. But severing the counts would produce the need for multiple trials and, as I have indicated, evidence of a particular event may have to be heard as many times as there are trials. That would be oppressive for the witnesses concerned and would give rise to the undesirable risk of the differential treatment by different juries of the same subject matter. And although any individual trial would be significantly shorter than three months, the total length of all the necessary trials would substantially exceed that period.

This is not a case where the jury are likely to confuse the events, even though there are many and the facts are complicated. It is not a case where the jury, provided they are properly instructed, are likely to misunderstand how evidence going primarily to one count may possibly bear on another.

Mr Webb advanced some reasons why it would be in the interests of justice to sever counts. It was submitted that there was little utility in overloading a jury hearing a murder charge with a number of less serious offences. It was submitted that a joint trial would run together strong cases and weak cases.

It seems to me that even though the charges other than that the murder of Mr Brown are less serious, (sic) they are all serious charges. It may be accepted that the case on some counts is strong and others weak by comparison. But there is no reason to suppose that the jury, properly instructed, will be unable to differentiate between the evidence available to be used on any individual count.

Mr Webb made submissions about the similarity of some counts and the dissimilarity of others. The similarities and dissimilarities can certainly be identified, but such considerations do not seem to me to justify severing the counts and running the risks I have mentioned.

It was submitted that there were inconsistencies in Mr Jewell's evidence. It seems to me that such matters should be left for the jury.

I have decided, without considering the possible availability of tendency and coincidence reasoning that the counts should not be severed and that a trial should take place of the 14 counts in the Crown's indictment, Exhibit 22. I grant leave to the Crown so to amend the indictment."

1. Before this Court senior counsel for the applicant submitted that his Honour had erred and reminded the court of the discussion of these issues by the High Court, in particular in Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528; De Jesus v The Queen [1986] HCA 65; (1986) 22 A Crim R 375; Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292; KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 and Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303.

1. The approach which this Court must take to the present application was considered in DAO v The Queen [2011] NSWCCA 63 (2011); 278 ALR 765, in which it was held that an order providing for separate trials is an interlocutory judgment or order for the purpose of s 5F of the Criminal Appeal Act. Whether there should be a joint or separate trial of individual counts is a matter within the discretion for the trial judge, although that discretion must be exercised according to established principles: DAO and R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504. To succeed in this Court the applicant must establish error in that the trial judge acted on a wrong principle, was influenced by an extraneous or irrelevant matter, mistook the facts, or failed to take into account some material consideration. Where one or more of these difficulties is not apparent, error may nevertheless be identified if the decision is unreasonable or plainly unjust.

1. In Sutton the High Court considered whether a number of sexual assault charges should have been tried together. The court identified that the problem with a joint trial was that unless evidence on one count was admissible on another count, the rule which excludes evidence of similar facts would be of little or no consequence. Brennan J said (at 541-2) that:

"When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have on the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted."

1. Gibbs CJ recognised in De Jesus that sexual cases raise particular problems. However, the Chief Justice confirmed (at 378) that the remarks of Brennan J in Sutton were of general application.

1. In KRM McHugh J said at [38]:

"In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count or counts in the presentment. If that risk exists, the judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or counts unless, of course, the evidence is admissible in respect of that count or counts. An example of such a risk is the accused being charged on the one presentment with offences against different victims and the evidence in respect of one or more counts being inadmissible in respect of the other counts (T (1996) 86 A Crim R 293). Ordinarily, however, the court should order separate trials where there are different victims, where the evidence in respect of one victim is not relevant to the charge in respect of the other victims and where the joinder of charges creates a risk of prejudice (Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 531, 541-542; De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 at 3, 7, 8; [1986] HCA 65; 68 ALR 1 at 4-5, 12, 13). But in some cases, an application for the trial of separate counts may be refused on the ground that the convenience of trying the charges together far outweighs any risk of prejudice or, more usually, because a separate trial is not sought: see, for example, T (1996) 86 A Crim R 293. If that occurs, a propensity warning will almost certainly be required."

1. In Phillips v The Queen the court recognised that separate trials of several complaints made by different complainants adds to the cost of the prosecution and defence of an accused. However, again in the context of allegations of sexual assault, the court concluded that the evidence from the different complainants would not have the relevant degree of probative force to justify the counts being included in the one indictment. The court said (at [79]) that, accordingly, it was necessary that the allegations in the various charges "be separately considered by different juries, uncontaminated by knowledge of other complaints."

1. There are decisions in Victoria which consider the problem in relation to an indictment containing a count of murder. In R v Pollit [1991] 1 VR 299 Beach J expressed the view (at 301) that it was highly undesirable to include any other count on an indictment that contains one or more counts of murder: see also R v Debs [2005] VSCA 66 (Vincent JA at [249] and [255]).

1. In DPP v Coelho, Tabbit and SPA [2007] VSC 137 Teague J (at [12]) considered and applied what had been said in Pollit and Debs and concluded, in the circumstances of that case, that it was in the interests of justice to separate the trial of an accused for murder from other charges against that accused. His Honour took this course notwithstanding the inconvenience that it would occasion to a significant number of witnesses. His Honour concluded that unless the trials were separated there was a significant risk of unfairness to SPA which could not have been adequately diminished by appropriate warnings and would have substantially increased the complexities of the issues faced by the jury.

1. In the present case it is plain that if count 11 was severed and tried separately it would nevertheless be necessary for significant evidence in relation to counts 1, 7, 8, 13 and 14 to be tendered at that trial.

1. In the incidents giving rise to each of these counts, used cartridges were found at the scene. The Crown will assert that these cartridges were fired from the same weapon. Similar cartridges were allegedly found at the scene of the murder. In three of these counts the Crown can also point to other evidence capable of showing that the applicant was the offender. A balaclava with the applicant's DNA was recovered from the scene of the incident giving rise to count 1. The victim in counts 13 and 14 identified the applicant from a photographic array as the person who resembled the person who shot him.

1. The trial judge summarised the evidentiary links between some of the counts in the following terms:

"(b) Mr Mario Burgueno's blue spray jacket was in his Ford Spectrum van when it was stolen and used in the attack on Mr Veney [count 1]. The jacket was found in the backpack thrown away by the man who shot at Constable Knight in Redfern [counts 9 and 10]. Constable Knight identified the accused as his attacker. There is thus a circumstantial link between the Veney and the Knight shootings, entitling the crown to call evidence of either in a case based on the other.

(c) Also recovered from the backpack thrown away after the shooting at Constable Knight was a car key that proved able to start Mr Saini's taxi, stolen from him along with his Lancer YVG 190 [counts 2 and 3]. The link is between the Saini robbery and the Knight shooting.

(d) The keys to Mr Stambouli's car stolen at Surry Hills [count 4] were found in the Celica WQN 598 impounded after the Vakauta shooting [counts 13 and 14]. There is independent evidence connecting the accused with that vehicle, not the least of which is a cigarette butt, which yielded DNA matching his. So evidence of the Vakauta event, or at least the impounding of the car after it, would be admissible at the trial of any charge based on the Stambouli robbery.

(e) Also in the backpack thrown away at Redfern was a single right-hand knitted woollen glove. Its pattern and colours are distinctive. Going from the wrist to the fingertips there are seven transverse stripes, each in the same weave but of a different colour. The first is narrow and light pink. The second broad and light grey, the third broad and dark pink, the fourth, cutting across the base of the thumb but not the fingers, is broad and dark grey, the fifth, cutting across the base of the fingers, is broad and white, the sixth, wholly across the fingers is broad and pink and the seventh, on the ends of the first, second and third fingers, is narrow and light grey. It may be said, making allowance for dirt on the glove, that the light pink at the wrist and the light pink across the fingers are about the same shade. The five broad bands are of about equal width

The man who robbed Ms Anderson at Cabramatta on 8 February 2007 [count 12], about three weeks after the recovery of the glove at Redfern wore a distinctive glove on his left hand, as appears from an electronic video recording held on a disc, Exhibit 10. The glove is remarkably like that recovered at Redfern. At the wrist is a narrow band which might be pink, then broad light grey, pink and dark grey bands. The fingers are for the most part white and appear to have light pink ends. The colours do not exactly match those on the glove recovered at Redfern, but they are close. They might originally have been the same. Dirt and the differing reproduction of colour on the electronic recording might account for the differences. In my view the Jury would be entitled to conclude that the two gloves were a pair."

1. Mindful of the evidentiary matrix in the prosecution evidence, providing the applicant can be protected from any unfair prejudice in the event that the counts are tried together, it seems to me to be appropriate that leaving aside counts 5 and 6, the other counts should be heard together. This was the conclusion reached by the trial judge. His Honour was mindful of, and his decision was influenced by, the inconvenience that would be occasioned to witnesses, the prosecution and the defence if the trials were separated. However, I cannot, in the circumstances, conclude that his Honour gave that issue excessive weight.

1. In relation to counts 5 and 6, as I have indicated, there is no evidence in those counts which is relevant to any of the other counts, unless, of course, his Honour ultimately concludes that it may be used for tendency or coincidence reasoning. If his Honour concludes that evidence in relation to counts 5 and 6 may not be used for that purpose, and accordingly is not admissible in relation to any other count, I have some doubt as to whether those counts should be joined in the indictment. The fact that the informer will give evidence in relation to those counts and the other counts may not justify counts 5 and 6 being tried with the other counts if there is any reasonable likelihood that there would be significant prejudice to the applicant. However, as his Honour has not finally considered the purpose for which that evidence will be used, it would be premature to conclude that his Honour erred in relation to those counts requiring the intervention of this Court. Nevertheless, I would urge that the prosecutor give further consideration to whether counts 5 and 6 should be retained on the indictment. If they were severed, the indictment would continue to contain 12 counts of varying degrees of seriousness. It may also be that after considering these reasons, it would be appropriate for that issue to be re-agitated before the trial judge before the jury is empanelled.

1. However, in my judgment the applicant has failed to establish any error by the trial judge requiring the intervention of this Court. Accordingly, I would refuse leave to appeal.

1. R A HULME J: I agree with McClellan CJ at CL.

1. SCHMIDT J: I agree with McClellan CJ at CL.

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Decision last updated: 18 April 2013