R v Carle [2010] NSWSC 871 | Case summary

JUDGMENT 1 HIS HONOUR: This is an application brought on behalf of the accused Bruno Carle (whom I shall refer to as the applicant) seeking orders that there be a temporary stay of proceedings which have been instituted against him and an associated order seeking that his trial be vacated. On 2 August 2010 I refused the applications and indicated that I would, in due course, publish my reasons for doing so. These are my reasons. 2 To put the present application in context, it will be necessary to sketch some background details. The applicant and another man, a juvenile named RC who was aged 16 at the relevant time, are each accused of the murder of Charmaine Williams at Canley Vale on 27 February 2009. The applicant is also charged with the attempted murder of Bojan Momirovski. That offence occurred immediately after the fatal incident. 3 When the matter was set down for hearing, the Crown's intention was that the two accused be tried jointly. Up until that point, the prosecution of the two accused had proceeded separately for reasons that are of no present relevance. In any event, the Crown sought leave at the outset of the present proceedings to add a further count to the indictment against the accused RC, namely that he had attempted to murder Bojan Momirovski. Mr Watts, who appears on behalf of the accused RC, opposed that application. 4 For a variety of reasons, it was agreed by all parties that Mr Momirovski should give evidence at a Basha enquiry. Although applications on behalf of both accused for separate trials had been foreshadowed prior to the Basha enquiry, those applications ultimately proceeded against the background of the sworn evidence given by Mr Momirovski. Whilst those applications were still being heard, the Crown then decided of its own motion, that the accused should be tried separately and that the trial of the applicant should proceed first. It is that latter decision or election by the Crown which the applicant now seeks to challenge. He contends that the proceedings against him should be stayed until such time as the proceedings in respect of the accused RC are finalised. Putting the matter another way, the applicant contends that the accused RC should be tried first. 5 It will now be necessary to refer, at least in summary form, to the evidence upon which the Crown seeks to rely against the applicant. For that purpose, I have been greatly assisted by material that the Crown has prepared which sets out the evidence that it expects to adduce. On the evening of the fatal incident the two accused were socialising with the deceased at her unit. Mr Momirovski was also in attendance. The accused were apparently friendly with one another and also with the deceased. On the other hand, neither of them had previously met Mr Momirovski. Nevertheless they spent a number of hours in his company on the occasion in question. As best I can understand it, Mr Momirovski arrived at the unit at about 4.30 pm and was still there when the fatal incident occurred some time later in the evening at about midnight. There were also other people in attendance at various stages during that period of time but they had departed by the time of the fatal incident. Mr Momirovski, who was sitting on the balcony of the unit at the relevant time, claims that the deceased went inside the premises in order to confront the applicant and the accused RC. He said that she had earlier remonstrated with the applicant about the fact that the music that was being played was too loud and that it was causing inconvenience to her neighbours. She indicated to Mr Momirovski that she intended to "throw them out". He said that he then heard the deceased and the applicant engaged in an argument. He said that the argument attracted his attention and that when he looked into the lounge room area of the premises, he observed that the applicant was holding a knife. Mr Momirovski said that when he ventured into the lounge room, he was attacked with the knife by the applicant. 6 According to the medical evidence, Mr Momirovski sustained 12 stab wounds in all. As a result of the attack upon him, he collapsed and was taken to hospital where he remained for several days. Whilst in hospital, Mr Momirovski participated in a video recorded identification parade in which he nominated the applicant as his attacker. In a separate procedure, he also identified the accused RC as having been present during the course of the evening. When giving evidence during the Basha enquiry, Mr Momirovski confirmed his identification of the applicant as being his attacker. He also said, in essence, that the accused RC had not been his attacker. He maintained that he was readily able to distinguish between them by reason of the difference in their appearance and because of the contents of a conversation that he had with the applicant which, if accepted, is certainly capable of lending support to his identification of him (the applicant). 7 The Crown case is that the same person stabbed both the deceased and Mr Momirovski and that, as a consequence, it can be inferred that the applicant also stabbed the deceased although Mr Momirovski is unable to give direct evidence to that effect. It is important at this stage to observe that the Crown specifically concedes that there is no evidence which would indicate that the two accused were, in any way, acting in concert. That being so, the Crown also accepts that the circumstances of the present case are well removed from those which prevailed in R v Mohan [1967] 2 AC 187. Indeed the Crown goes further and accepts that the two accused cannot both be guilty of the offences in question. 8 Although the Crown case against the applicant rests substantially upon the evidence of Mr Momirovski, it also seeks to rely upon the evidence of various neighbours who lived in the deceased's unit complex, who either heard or observed things which are said to be inculpatory of the applicant. The Crown also relies upon what was said by the applicant during the course of a '000' call which he made immediately following the fatal incident. 9 The applicant presented himself at Cabramatta police station the following evening. In an ERISP interview, which went for many hours, he told police that although he had been present at the time of the fatal incident, he had not been responsible for stabbing either the deceased or Mr Momorovski. Indeed he nominated the co-accused RC as having done so and in a video-taped "walk around", he reiterated that version of events. As I understand it, he provided a similar version to various other persons to whom he spoke shortly after the incident. Notwithstanding what he told police in his ERISP, the applicant was charged with both offences. 10 On 3 March 2009 the accused RC was apprehended. He declined to participate in an ERISP and was charged with concealing a serious indictable offence in relation to this incident. He was then remanded in custody at a juvenile detention facility. Whilst there, he made admissions to another young inmate, AB, that he had stabbed both the deceased and Mr Momirovski. I was informed that the statement of AB reveals that the accused RC provided him with a detailed account not only of the offences themselves but also of the events leading up to and following their commission. On 15 June 2009, the accused RC was charged with the murder of the deceased. Later that same day, he spoke to another young inmate, AY. That conversation, which was lawfully intercepted, was recorded. In it, the accused RC acknowledged to AY that he had made the earlier admissions to AB, but claimed that they were untrue although, as I understand the situation, he did not seek to explain why he had made them. Nor, as I understand it, does everything that the accused RC says in that conversation reflect well upon him. 11 That admittedly cursory summary of the evidence demonstrates the highly unusual nature of this case. What it also reveals is that there is a body of evidence, the most prominent feature of which is the evidence of Mr Momirovski, which inculpates the applicant whilst simultaneously exculpating the accused RC. On the other hand, there is a separate body of evidence, namely his admissions which inculpates the accused RC whilst simultaneously exculpating the applicant. 12 In agitating for a separate trial both counsel relied upon R v Maharaj NSWCCA unreported 1 May 1998, a case in which the appellant contended, in essence, that there was an inconsistency between the two alternative counts with which he had been charged because they involved different states of mind. In the course of dealing with that submission Donovan AJ observed: Counsel for the appellant in relation to this last submission said that the witness for the Crown could not say "I believed A" or "I believed B" and A would satisfy one charge and B would satisfy the other. He continued: "It would be the same as a witness saying A or B committed the crime and the jury being required to convict A or B which would be absurd". I agree that the facts in the illustration are not permissible, but I do not think that the analogy is applicable. This is not a situation where there are alternative accused. I point out that there could be no prima facie case in relation to each of the accused if the evidence was ambiguous as in this illustration. The appellant developed the analogy of charging two individual people for the same offence and offering the jury the opportunity to choose between the two. There is a significant difference between this analogy and the circumstances of the present case. Where two people were charged as above, the Crown would be wilfully charging one person (unidentified at that time) whom the Crown knew was an innocent person. The Crown would be subjecting that innocent person to the serious criminal process of a trial knowing that this was totally unjustified. The Crown in the present case is not doing anything of the sort. (pp 4-5) 13 In R v Bellman [1989] 1 AC 836, Lord Griffiths observed: It, of course, goes without saying that if the evidence shows that one of two accused must have committed a crime but it is impossible to go further and say which of them committed it, both must be acquitted: see Reg. v Lane (1985) 82 CR.APP.R. 5. (at 849) 14 No doubt the Crown had those considerations in mind when it elected to try the accused separately. 15 I was informed by the Crown that, in its view, s 17(2) of the Evidence Act 1995 which states that "a defendant is not competent to give evidence as a witness for the prosecution", precludes it from calling the accused RC at the applicant's trial: see also Kirk v The Industrial Relations Commission of NSW (2009) 239 CLR 53 (at 115). The Crown maintains that view notwithstanding s 17(3) and (4) of the Act which are in the following terms: An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant. If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury's absence) that the witness is aware of the effect of subsection (3). 16 "Associated defendant" is defined in the Dictionary: "associated defendant", in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for: (a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or (b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted. 17 It should be observed that Mr Hanley, who appears on behalf of the applicant, shares that view. It is unnecessary to consider that issue any further since the Crown indicated that it would not call RC to give evidence at the applicant's trial, even if it was able to do so. Nor does Mr Hanley contend that the Crown is under an obligation to do so. The Crown does however intend to lead at the applicant's trial, the evidence concerning the admissions which the accused RC made to AB as well as the subsequently recorded conversation with AY. Unsurprisingly, that course is not objected to by the applicant. Clearly enough the applicant will seek to rely upon RC's admissions both to undermine the evidence of Mr Momirovski, and to also bolster his own case as revealed in his ERISP, that it was the accused RC and not him who stabbed both victims. 18 There is no issue between the parties concerning the legal principles which are to be applied. The power of this court to grant a stay of proceedings, be it of a permanent or temporary nature, is undoubted. In MG v R [2007] NSWCCA 57 the Court of Criminal Appeal, in granting a temporary stay until a replacement Crown Prosecutor could be briefed, observed that: It is fundamental to our legal system that an accused person is entitled to a fair trial according to law: see Jago v District Court (NSW) (1989) 168 CLR 23 at 56. As Deane J, in Jago, recognised the notion of fairness "which has inspired much of the traditional criminal law of this country defies analytical definition." Although relevant general propositions may be formulated and examples from past experience identified, an "essentially intuitive judgment" is involved. In Subramaniam v R (2004) 211 ALR 1 the High Court in a joint judgment said: "It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed Walton v Gardiner (1993) 177 CLR 378 at 393; 112 ALR 289 per Mason CJ, Deane and Dawson JJ; see also Jago v District Court (NSW) (1989) 168 CLR 23 at 31; 87 ALR 577 at 581-2; Barton v R (1980) 147 CLR 75 at 95-6; 32 ALR 449 at 458-60. As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner (1993) 177 CLR 378 at 393; 112 ALR 289 at 298, the inherent power of a superior court to stay proceedings on the ground of 'abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.' Fairness or unfairness has been said to defy "analytical definition" and to "involve an undesirably, but unavoidably, large content of essentially intuitive judgment" Jago v District Court (NSW) (1989) 168 CLR 23 at 57; 87 ALR 577 at 601. Deane J in Jago (1989) 168 CLR 23 at 57; 87 ALR 577 at 601 posed some examples of unfairness: default or impropriety on the part of the prosecution in pre-trial procedures, or the concealment of evidence from an accused person that may have assisted his or her defence. Others may include conviction on evidence truly not probative; compulsion upon an accused to incriminate himself or herself; the exaction of involuntary confessions or R v Swaffield (1998) 192 CLR 159; 151 ALR 98 failure to hold committal proceedings Barton v R (1980) 147 CLR 75 at 100-1; 32 ALR 449 at 462-4; the absence of legal representation of an indigent person facing serious criminal proceedings Dietrich v R (1992) 177 CLR 292; 109 ALR 385; and, unreasonable delay." There is more than one interest involved in the trial of a person accused of committing a crime. The Crown has an interest in prosecuting an alleged breach of the law, the accused has an interest in being tried according to law and, as Toohey J said in Jago, there is a "public interest that charges of serious offences be disposed of but that they be disposed of at a hearing which is fair and not oppressive to the person charged" (p 72). (paras 65-66) 19 In Re K [2002] NSWCCA 374 the Court of Criminal Appeal, in granting a temporary stay because of adverse pre-trial publicity, observed that: It was submitted that unlike the position after conviction, as was the position in R v Glennon , it was not necessary for the appellant to demonstrate that he would not have a fair trial. It was sufficient if there was such a risk. The Court agrees that this is the correct test to be applied in the circumstances of this case.. (paras 9-10) 20 In Maxwell v The Queen (1995) 184 CLR 501 the High Court considered the power of a trial judge to reject a plea which had been accepted by the Crown. Dawson and McHugh JJ observed that "our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process.. or to ensure a fair trial" [at 512]. Their Honours continued: In R v Brown [1989] 17 NSWLR 472 at 479 the Court of Criminal Appeal recognised the substantial practical limitations upon the power of the courts to control the exercise by prosecuting authorities -- in that case the Director of Public Prosecutions -- of their discretion in such matters as the choice of the offence with which an accused is to be charged or the acceptance of a plea of guilty to a particular charge. The Court rightly observed that the most important sanctions governing the proper performance of a prosecuting authority's functions are likely to be political rather than legal. Nevertheless, the Court concluded that in an appropriate case a court may need to give effect to its own right to prevent an abuse of its process. That conclusion is undoubtedly correct, but the need for a court to exercise its inherent power to protect its own process should in this context rarely, if ever, arise. A mere difference of opinion between the court and the prosecuting authority could never give rise to an abuse of process. No doubt a court may, if it thinks it desirable to do so, express its view upon the appropriateness of a charge or the acceptance of a plea and no doubt its view will be accorded great weight. But if a court does express such a view, it should recognise that in doing so it is doing no more than attempting to influence the exercise of a discretion which is not any part of its own function and that it may be speaking in ignorance of matters which have properly motivated the decision of the prosecuting authority. The court's power to prevent an abuse of its process is a different matter and the question of its exercise could only arise in this context if the prosecuting authority were seen to be acting in an irresponsible manner. That, as experience happily tells, is seldom, if ever, likely to occur. (513-514) 21 In Brown itself the Court of Criminal Appeal said that: To describe a bona fide decision by the Director of Public Prosecutions as an abuse of the process of the Court is no light matter, and courts should pay due regard to the consideration that it is the executive which is entrusted with the primary responsibility of making decisions of this character. (at 481) 22 The submission which is advanced on behalf of the applicant is in a narrow compass. Mr Hanley expressed it in the following terms in his written submissions: [t]he applicant in these circumstances,… cannot cross-examine RC in relation to his claim the admissions are false. The jury will not have the opportunity to assess him as a witness to assist them in a determination as to whether the admissions raise a reasonable doubt as to the guilt of the applicant. This creates a risk that the applicant will not have a fair trial. This can be avoided by RC being tried first and dealt with according to law. He would then be available as a witness to be called in the trial of [the applicant] by either the Crown or the applicant. 23 In a similar vein he contended that the jury will be asked to assess RC's assertion that his admissions to AB were false "in a vacuum and without being tested". 24 The accused RC has at no stage spoken to police. Mr Hanley nonetheless recognised that it was highly likely that were he to give evidence he would assert that it was the applicant who stabbed the two victims. Mr Watts confirmed that that was indeed his client's position. In those circumstances particularly, it is difficult to perceive that there in fact exists a disadvantage to the applicant in not having the accused RC available to give evidence and/or to be cross-examined. On the contrary, there may well be significant forensic advantages to the applicant in not having to face the prospect that RC will give evidence at his trial. Furthermore, his absence will have the consequence that he will obtain the significant benefit of having before the jury RC's admissions that he (RC) was the perpetrator without the danger that RC would tell the jury that the applicant was the real culprit. Accordingly, the fact that the jury will need to make an assessment of RC's utterances in "a vacuum" may well operate to his advantage. Nevertheless, I do not have to go that far in order to decide the present application. In short, I am far from satisfied that there is any risk of unfairness to the applicant of the kind which is asserted. 25 Nor can the applicant's assumption, that the accused RC would give evidence at the applicant's trial in the event that RC's trial went first, be uncritically accepted. First, it cannot simply be assumed that, were that to occur, the Crown would then seek to proceed against the applicant. But even if it did and RC did give evidence, there is no warrant for assuming that he would assist the applicant's cause. Regardless of how the submission is framed, it is ultimately based upon nothing more than theoretical possibilities which may never eventuate. 26 Greater insight into the applicant's concern may be gleaned from the following passages which appear in his written submissions. [T]he arbitrary election by the Crown to firstly prosecute the trial of the applicant is an abuse of power that ensures its inability to prosecute the accused RC at a subsequent trial. In effect, the applicant will be the only one of the accused tried for these offences. … In the trial of the applicant the Crown will rely primarily on the evidence of Momirovski as having a degree of reliability that is capable of establishing [the applicant's] guilt. At any subsequent trial prosecuting RC the Crown will rely on RC's admissions to [AB]. The Crown in doing so would have to challenge the reliability of the evidence of Momirovski. This is an untenable position for the Crown and effectively ensures RC cannot be prosecuted irrespective of whether [the applicant] is acquitted or convicted. This is an abuse of process in respect of the applicant. 27 It is not easy to grasp precisely how the circumstances to which the applicant refers could constitute an abuse of process. It appears to be contended that by its election, the Crown has effectively jeopardised any future proceedings it may choose to conduct in respect of the accused RC. It is impossible to make a proper assessment of that contention as matters presently stand. But even if that were to be an accurate characterisation of the situation, and the accused RC was to benefit in the fashion which the applicant suggests, it appears that the essence of the complaint is that it is a benefit of which the applicant is deprived. It takes little imagination to understand the forensic reasons which would prompt the applicant to prefer that the trial of RC proceed first. However, the fact that the applicant's preference is not to be realised, could not possibly in my view provide a basis for concluding that the Crown's decision to proceed against him first constitutes an abuse of process. 28 There was also some debate as to whether the applicant could call the accused RC at his trial in light of s 17(3) of the Evidence Act. Again, in my view, there is no necessity to determine that issue at the present time. I also say nothing further as to the likelihood that it would happen in any event. 29 Even if I had formed the view that there was a risk of unfairness of the relevant kind occasioned to the applicant, I would nevertheless be disposed to the view that it could be addressed by the giving of appropriate directions. Moreover, the Crown as I understand his position, acknowledges that directions could be fashioned to inform the jury of any disadvantage that the applicant may face in not being able to cross-examine RC. In written submissions he also contended that: [t]he jury can be told that he is awaiting trial, they can be told about the circumstances surrounding his retraction, i.e that he was aware that authorities knew that he had confessed. The jury can be told that at the time he "retracted" his confession he either knew or was suspicious about his conversations being recorded. 30 Consistently with the authorities to which I referred earlier, it is likely to be a rare case in which a Crown's election as to the order in which accused persons are to be tried, would give rise to an abuse of process. The present case is certainly not one of them. It follows, in my view, that the risk of unfairness to which the applicant points falls well short of warranting the relief which is sought. The consequence is that the challenge to the Crown's decision to try the applicant first must fail.

R v Carle

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Cases Cited (10)