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R v AI, AD and JR [2013] ACTCA 16 | Case summary | Zoe

ACTACTCA

R v AI, AD and JR [2013] ACTCA 16

[2013] ACTCA 16

Court of Appeal (ACT)|2013-04-10|Before: Burns JJ

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Court of Appeal (ACT)

Decision date

2013-04-10

Before

Burns JJ

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Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

THE QUEEN v AI, AD AND JR

[2013] ACTCA 16 (10 April 2013)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – severance of an indictment – whether two or more accused charged with committing an offence should be tried jointly – where significant differences in the case against each accused – no proper basis to sever the indictment

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – severance of an indictment – whether two or more accused charged with committing an offence should be tried jointly – purpose of joint trials – involvement in the same criminal enterprise – same witnesses – acts in preparation performed together – all accused present for the incident

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – in general and right of Appeal – ability to appeal an interlocutory order in criminal proceedings – fragmentation of criminal proceedings

APPEAL AND NEW TRIAL – Appeal against an interlocutory order – appeal against order severing an indictment – only in exceptional circumstances – appeal allowed

Supreme Court Act 1933 (ACT), ss 37E, 37S

Aon Risk Services Australia Ltd v ANU (2008) 227 FLR 388

DPP (ACT) v AI & Ors [2012] ACTCA 23

Gibb and McKenzie v The Queen (1982) 7 A Crim R 385

House v The King (1936) 55 CLR 499

Khalil v His Honour, Magistrate Johnson and Anor [2008] NSWSC 1092

Kola v The Queen [2006] ACTCA 23

R v Demirok [1976] VR 244

R v Elliott (1996) 185 CLR 250

R v WR [2009] ACTSC 93

Yates v Wilson (1989) 168 CLR 338

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 12 – 2012

No. ACTCA 13 – 2012

No. ACTCA 14 – 2012

No. SCC 295 of 2009

No. SCC 268 of 2009

No. SCC 369 of 2009

Judges: Refshauge, Penfold and Burns JJ

Court of Appeal of the Australian Capital Territory

Date: 10 April 2013

IN THE SUPREME COURT OF THE )

The Crown alleges that AI and JR formed an agreement on or before 16 November 2008 to murder CMR. It is alleged that certain overt acts in furtherance of this agreement were committed by AI and JR on 16 and 17 November 2008. The Crown further alleges that AD joined the agreement when he met with AI and JR on the evening of 17 November 2008 at the home of BS.
It is alleged that after that meeting AI, JR and AD went to AD’s home, where further overt acts were committed including preparing a car belonging to BS for the disposal of the body of CMR after his murder.
The accused drove BS’s car to an address in Kambah to collect a baseball bat from AI’s car, and thereafter travelled to Greenway with a view to luring CMR from his home to meet with them for the purpose of killing him. It is alleged that JR phoned CMR to persuade him to meet JR. CMR then left his home and met up with JR who took him to an isolated place where AI and AD came out of hiding and ran towards CMR. At that time AI was brandishing a baseball bat. CMR ran away, and was pursued by IA, JR and AD. At some point during the pursuit, AD ceased pursuing CMR and returned to BS’s car. AI and JR chased CMR into bushland, and AI told CMR he was going to kill him. JR then assaulted CMR with the baseball bat, and AI placed him in a stranglehold, causing CMR to lose consciousness. He and AI then fell down. CMR regained consciousness and ran away again. He ran to a nearby house, and police were called.
This is an outline only of the Crown case, and omits many details the Crown will seek to rely upon at trial. It is intended by this outline only to demonstrate, in general terms, the Crown allegations against each of the accused. THE APPLICATION BEFORE THE CHIEF JUSTICE
AD applied to have the charges against him severed from the joint indictment, with the consequence that he would be tried separately from his co-accused. Neither AI nor JR applied for their charges to be severed; indeed, then counsel for AI, Mr J Pappas, opposed any severing of the indictment.
The accused AD relied upon a number of grounds in the severance application: a) differences between the Crown case against AD and his co-accused; b) the inclusion by the Crown of substantive offences in the same indictment as the conspiracy charge was likely to result in added complexity at the trial; and c) that it was likely that evidence relevant to the character of each of the co-accused would be given by each of the accused which would be likely to prejudice AD as he has no criminal record.
The learned Chief Justice was apparently only influenced by the last of these grounds. In making the severance order, his Honour said: The next question which arises is a little bit more difficult and that’s the question of the prejudice to first of all [AD] and then possibly [JR], of proceeding not just with the conspiracy charge, but with the evidence which might emerge from [AI] that each of them was, in one respect or another, a person of bad character. It is by no means clear that that evidence would be introduced, of course, and allowed to be introduced, but on the other hand, one cannot say it could not be and it may well prejudice AI not to be able to introduce it, assuming some aspect or aspects of it were admissible, which is a bit difficult to tell in advance of the trial. I am inclined to think that it is something which ought to be avoided, because unless it is, the trial could proceed for a considerable way, indeed into a defence case, before the issue arises, which might lead to the jury then being discharged. It is accepted in evidence that neither [AD] nor [JR] has any previous criminal history of any note, certainly not at the time that these events took place, so any suggestion that they then enjoyed a bad character – if we can call it enjoy it – would clearly be a false statement which would either rebound back on the person making it or – and this is the other prospect which is more troubling – rebound upon the person against whom it is made, irrespective of their record, their actual record, that is, for it may well be thought by a reasonable juror that even though, say, [AD] had no prior convictions, nevertheless, the statements attributed to him might well be those that are made and reflect a bad character, even if it wasn’t reflected in a criminal record. In those circumstances, it seems to me that it would be inevitable that [AD], given this instance, would have to be tried separately. If something similar was said in respect of [JR], the same consequence would follow in respect of him and although there would be then three trials, it does seem to me that there may well be a case – certainly in the case of [AD] – where one might well expect that much of the evidence against him would not be contested. The question would be of his intent, as indeed was the case with Mr Sewell. In those circumstances, I think the better course is to direct that [AD], [AI] and [JR] be tried separately.
The evidence of bad character to which his Honour referred, potentially emerging from the case of AI, is to be found in statements made by AI to a psychiatrist, Dr Michael Diamond, as set out in his report dated 11 September 2011. The report of Dr Diamond
Dr Diamond was retained by AI’s lawyers to supply a report indicating whether he suffers from, or in November 2008 suffered from, any psychiatric illness that may explain his conduct in the lead up to, and in, the events of 18 November 2008. In his report Dr Diamond expressed the opinion that AI suffered from two diagnosable psychiatric disorders in the months preceding the incident on 18 November 2008, being an adjustment disorder with mixed features of anxiety and depression, and a substance abuse disorder. The latter of these disorders related to the reported level of AI’s alcohol consumption at that time.
There is nothing extraordinary in lawyers for an accused person seeking a psychiatric report for the purpose of determining whether the accused suffers from any psychiatric disorder relevant to liability for the charges against him or her, or the level of his or her moral culpability. What makes the report of Dr Diamond extraordinary is that he was asked by the accused’s lawyers to venture well beyond the bounds of his professional expertise. The questions directed to Dr Diamond by the accused’s lawyers were: 1. Following your assessment of [AI], would you kindly supply a report indicating whether he currently suffers from or in November 2008 suffered from any (and if so, what) psychiatric illness which might explain his conduct both in the lead up to and the events of 18 November 2008. 2. Whether, in your expert opinion it is reasonably possible that [AI] planned the murder of [CMR] and co-opted his friends and associates to participate in the plan but never held or formulated any actual intention of carrying out that murder or allowing it to occur. 3. If so, why [AI] acted in that way and whether his actions were completely voluntary or the result of some, and if so what, compulsion to act as he did. 4. Whether [AI] requires any, and if so what, psychiatric treatment at the present time. 5. Whether you require, and if so what, further information or evidence before furnishing a final or even a preliminary opinion and report. 6. Any other matters you think relevant.
There can be no objection to Dr Diamond being asked to address items 1, 4, 5 and 6 above. Were it not for the link to question 2, the request in item 3 would also be unremarkable. However, the request in item 2 is extraordinary, and amounts to a request that Dr Diamond speculate as to the intention of the accused at the time he did the acts alleged by the Crown. The inclusion of the words “in your expert opinion” in the request does not convert the invitation to speculate into a request for a relevant psychiatric opinion. Whether AI intended to carry out the plan to murder AI is not a matter upon which Dr Diamond can give an expert opinion. If the jury is provided with the relevant evidence about the circumstances surrounding the events of 16, 17 and 18 November 2008, they will be in as good a position as Dr Diamond to address the question of the accused’s intent.
It is not uncommon that experts reports, such as that prepared by Dr Diamond, will contain inadmissible material. Usually, where that is the case, the report will not be admitted into evidence, and the author will be called to give oral evidence at trial. Dr Diamond’s report records statements made by AI about his co-accused and, in particular, his knowledge or belief as to their prior involvement in criminal activities. The relevance of such statements in the context of the case against AI is unclear. In the course of submissions on appeal, AI’s counsel could offer no basis on which such evidence could be received at AI’s trial. AI does not allege that his actions relevant to the charges were the result of duress or intimidation, so that there is no apparent basis for introduction of evidence by AI concerning the reputations of his alleged co-offenders and none was explained. Indeed, we would go so far as to say that AI’s statements about the reputations of his co-accused are irrelevant.
It was, therefore, not surprising that we were informed by AI’s counsel on this appeal, Mr A Doig, that AI did not propose using Dr Diamond’s report at his trial. Counsel said that a further report may be obtained from Dr Diamond, but whether that will occur, and what the further report may address, can only be speculation at this time. THE APPLICATION FOR LEAVE TO APPEAL
All parties accepted these proceedings as an appeal from an interlocutory order, for which leave to appeal is necessary: s 37E(4) Supreme Court Act 1933 (ACT). The principles relevant to an application for leave to appeal from an interlocutory order were set out by Lander J in Aon Risk Services Australia Ltd v ANU (2008) 227 FLR 388 at 406; [126]-[127]: Where a court is called upon to consider the grant of leave to appeal from an interlocutory order, two matters will ordinarily need to be addressed. First, whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by a court of appeal. Second, whether a substantial injustice would result if leave were refused on the assumption that the decision is wrong... ...[L]eave to appeal will be more readily granted where the interlocutory order complained of has determined the substantive right of the party.
Similarly, in Kola v The Queen [2006] ACTCA 23 at [5], Crispin P said in granting leave to appeal from an interlocutory ruling concerning the validity of a search warrant: The second issue that arises is whether leave to appeal is warranted. It seems to me that there are two observations which should be made about that. First, it is common ground that the resolution of the challenge to the validity of the warrant may be decisive of the trial and that it is in the public interest for the matter to be resolved before the trial commences. Second, the legal issues that arise for resolution on the proposed appeal are serious and of potential importance to other cases.
It is quite clear that the appellant must demonstrate more than the fact that the decision to sever the indictment was, in the opinion of this court, not the preferable decision: House v The King (1936) 55 CLR 499. Courts are traditionally reluctant to fragment criminal proceedings by countenancing appeals against interlocutory orders. As Refshauge J said in R v WR [2009] ACTSC 93: 21. I do note that there is a very strong and long tradition of courts setting their face against the criminal trial process being interrupted by rulings and interlocutory rulings, and there are some very strong statements by the High Court. In R v Iorlano and Anor (1983) 151 CLR 678, a joint judgment of the Court, the Court said (at 680): However it seems necessary to repeat that it is highly undesirable to interrupt the ordinary course of criminal proceedings by applications for leave to appeal or prerogative relief for the purpose of challenging rulings on admissibility of evidence. The fact that the court has expressed its conclusion on the substantive question at issue in the present case is not intended to encourage applications of this kind. Both applications are dismissed. 22. Later in Re Rozenes, Director of Public Prosecutions and Anor; Ex parte Burd and Ors (1994) 120 ALR 193, Dawson J said (at 195): This court has repeatedly indicated that the fragmentation of a criminal trial by proceedings to contest the rulings of a trial judge, by way of either leave to appeal or prerogative relief, is highly undesirable and will only be allowed in exceptional circumstances (see e.g. R v Iorlano (1983) 151 CLR 678 at 680, Yates v Wilson (1989) 168 CLR 338 at 339). 23. As Brennan J said in Beljajev v Director of Public Prosecutions and Anor (1991) 173 CLR 28 (at 32): The jurisdiction of this court is not fitted to the supervision of interlocutory processes of a criminal trial. 24. In Joosse v Australian Securities and Investment Commission (1999) 73 ALJR 232, Hayne J rejected an interlocutory application and said (at 234): This court has said repeatedly that the criminal process should not be interrupted by testing interlocutory rulings that may be given in the course of proceedings. (footnote omitted) 25. In R v Elliott (1996) 185 CLR 250, a decision of the High Court, the prosecution there, having had critical evidence excluded from the trial, sought special leave to appeal. That special leave was rejected. The court consisting of Brennan CJ and Gummow and Kirby JJ said (at 257): It is understandable that the ordinary course of criminal procedure in Victoria requires the interlocutory rulings of a trial judge to be accepted for the purposes of the trial, whether those rulings be right or wrong. If the rulings are wrong then, upon conviction, an accused person is entitled to challenge the ruling on appeal. But the prosecution has no such right. If the ruling results in an acquittal the ruling, albeit erroneous, can be canvassed on appeal, but only to correct the ruling – not to impeach the acquittal: see s 450A. Obviously two considerations are in competition here. On the one hand, the prosecution is entitled no less than the defence to a trial according to correct rulings on questions of law. On the other, interlocutory appeals in criminal trials delay the trial and are likely to produce miscarriages of justice in ways unrelated to the ruling. The personal and financial stress of criminal trials, the dimming of witnesses’ memories and the sheer delay between criminal conduct and the administration of condign punishment are factors which weigh heavily in favour of expediting the process of the criminal trial even though incorrect rulings have to be accepted by the prosecution in order to achieve that object, subject to s 450A.
The High Court has made it clear that in criminal matters, appeals from interlocutory decisions during the proceedings will only be entertained in exceptional circumstances. For example, in Yates v Wilson (1989) 168 CLR 338 at 339, a Full Court of the High Court said: It would require an exceptional case to warrant the grant of special leave to appeal in relation to a review by the Federal Court of a magistrate’s decision to commit a person for trial. The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration by us. Clearly, however, as pointed out by Hall J in Khalil v His Honour, Magistrate Johnson and Anor [2008] NSWSC 1092 at [117], this caution about such fragmentation would be more pronounced where a hearing of proceedings has actually commenced.
This case does, however, appear to us to be exceptional. The hearing has not commenced and, indeed, the appeal provides an opportunity to re-constitute a trial that, by the severance of the trials of the accused, has itself been fragmented. Further, the interlocutory decision is one that, once implemented, could never be corrected on appeal, and it is not even clear that it could be the subject of a reference appeal under s 37S of the Supreme Court Act 1933 (ACT) aimed at correcting the ruling, as was suggested in R v Elliott (1996) 185 CLR 250 at 257. Thus, we do not accept, as submitted by the respondents, that the fact that the order the subject of the application for leave is an interlocutory order requires us to refuse that leave.

It is well established that, as a general rule, where two or more accused are charged with committing an offence jointly, they should be tried in a joint trial. The reasons behind this general principle were set out in R v Demirok [1976] VR 244 (at 254): 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.
There are cogent reasons why the present accused should be tried jointly. First, they are all alleged to be part of the same criminal agreement, albeit that AD is alleged to have joined the conspiracy one or two days after it was originally formed between AI and JR. Secondly, most of the witnesses to be called by the Crown will be the same for each of the accused. Thirdly, all three accused are alleged to have been together on the evening of 17 November 2008 when significant acts in furtherance of the conspiracy are alleged to have occurred, including preparation of a motor vehicle to transport CMR’s body after he had been killed, and obtaining shovels and a mattock to facilitate burial of the body. Fourthly, all three accused are said to have been present and participating in an attempt to murder CMR on the evening of 17 November 2008.
There are, of course, some significant differences in the cases against the individual accused. This is perhaps most marked with respect to the case against AD, as opposed to AI and JR. AD is alleged to have joined the conspiracy later than AI and JR, and left the scene after an initial alleged attempt to murder CMR on the night of 17 November 2008. Thus there will be evidence led at trial that is relevant to the cases against AI and JR, but not relevant to that against AD. The fact that some evidence will be admissible with respect to some accused only, and not against others, is not, in itself, a reason to order separate trials. As the Victorian Court of Criminal Appeal (Young CJ, Crockett and King JJ) said in Gibb and McKenzie v The Queen (1982) 7 A Crim R 385 (at 393): Of course, it commonly occurs when there is a joint trial that material admissible only against one accused is received in evidence and it is necessary for the trial judge to warn the jury that they must disregard that evidence in considering the case against the other accused. But it is said that it would be impossible to expect any jury to put all the material highly prejudicial to Gibb out of their minds when considering the case against him and that therefore he could not have had a fair trial. Where three persons are charged with the murder of another and the Crown alleges that all three were present at the time of the killing, the interests of justice ordinarily require that they be tried together. The interests of justice are not confined to the interests of the accused. It would usually be scandalous and a serious blot on the administration of justice if the ordering of separate trials in such cases resulted in inconsistent verdicts.
The learned Chief Justice apparently saw little merit in the proposition that AD would suffer prejudice that could not be addressed by appropriate directions to the jury in the course of a joint trial. On the material that was before the learned Chief Justice we respectfully agree.
The only basis upon which the learned Chief Justice saw fit to order severance of the indictment, and separate trials for each of the accused, was the potential for prejudice against AD and JR by reason of statements made by AI to Dr Diamond about their characters, or which might be made by AI in the course of a joint trial. It is now clear that AI will not seek to rely upon the report of Dr Diamond. Whether Dr Diamond will be called upon to give evidence at AI’s trial is unknown, however it appears most unlikely that he would be permitted to testify to the statements AI made about his knowledge or understanding of the characters of JR and AD. No valid basis for the admission of such evidence was advanced before us.
Similarly, it seems highly improbable that AI himself will be permitted to give evidence of these matters. The simple reason for this is that AI’s belief or knowledge of the characters of his co-accused is irrelevant to his case. If AI were alleging that he only became involved because of threats made to him by JR or AD, then his knowledge or belief as to their character, and in particular any propensity towards violence, would be highly relevant, but AI does not allege that his involvement in these events was a result of duress. Rather, as we understand it, each accused, including AI, will say that they were never party to a conspiracy of the type alleged by the Crown, as each never believed that there was any real intention to murder CMR. In other words, they allege that the whole episode was bravado. We cannot see how AI’s knowledge or belief of the bad character of his co-accused is relevant to this issue. Indeed, introduction of this evidence runs the risk of undermining the defence AI seeks to put forward.
We are satisfied that there was no proper basis for the orders made by the learned Chief Justice. The public interest is best served by a joint trial, so as to avoid inconsistent verdicts, reduce unnecessary expense and inconvenience to the prosecution, and, importantly, relieve the complainant of the obligation of testifying in three trials. There is also a real public interest in vindicating the principle that persons jointly charged with criminal offending should be tried jointly, unless some reason is shown why that principle should be departed from.