R v Goral, Goral & Akcay [2001] VSC 245 | Case summary | Zoe

VICVSC

R v Goral, Goral & Akcay [2001] VSC 245

[2001] VSC 245

Supreme Court of Victoria|2001-05-31|Before: Teague J

At a glance

AI case summary

Result

procedural. Application for separate trial by Suleyman Akcay granted; Teague J ordered that Akcay be tried separately from Michael and David Goral owing to a significant risk of positive injustice if there...

Key principles

A judge should grant a severance (order a separate trial) where there is a significant risk of a 'positive injustice' to an accused if evidence admissible only against co-accused...
Where the accounts given by jointly charged accused differ substantially about who committed the violent acts and how seriously, and where one accused's interview is especially...

Issues before the court

Whether the accused Akcay should have a separate trial from the two Goral brothers.
Whether the term 'incapacitating' in the definition of 'offensive weapon' under s77(1) requires a special meaning to be explained to the jury and...

Cited legislation

No linked legislation citations have been extracted yet.

Plain English Summary

Teague J granted an application by accused Suleyman Akcay for a separate trial from his two co-accused. The judge found that the three accused gave materially different accounts in police interviews about who physically mishandled the victim; the two Goral brothers gave consistent statements implicating Akcay, while Akcay's videotaped interview was disordered and very hard to understand. Because the murder charge under s3A turned heavily on causation and the trial would be short and focussed on the disputed interview material, there was a significant risk that a jury would fail to compartmentalise and would accept the Goral brothers' accounts to Akcay's prejudice. Balancing this against the usual policy favouring joint trials, the judge concluded severance was necessary to avoid 'positive injustice' and ordered a separate trial for Akcay (see [20], [29], [35], [45], [48]).

AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.

Deep Dive

1,468 words · generated 24/08/2026

What happened

Three men, Michael Edmund Goral, David Henry Goral and Suleyman Akcay, faced joint charges of aggravated burglary, armed robbery and murder arising from events at Lindenow on 29 August 1999 in which the licensee of a hotel, Mr Pat Collins, was bound, gagged, injured and later died on 10 September 1999 ([5], [8]). The police interviewed all three members of the group in early October 1999. The Goral brothers gave substantially similar accounts blaming rough handling by Akcay for the force applied to Mr Collins' ribs and body ([11], [14]). Akcay's videotaped interview, taken after the brothers', contained a markedly different narrative but was described by Teague J as “extraordinarily scrambled and rambling”, with broken English, liberal pronoun use and mixed quoted speech, making it difficult to parse and attribute actions clearly to particular persons ([17], [48]).

Akcay applied for a separate trial. The Crown opposed that application, relying on established policy reasons favouring joint trials: efficiency, single jury seeing all evidence, avoiding inconsistent verdicts and the expectation that juries can follow directions to compartmentalise evidence (summarising principles derived from Vollmer and Webb at [32], [35], [42]). Teague J heard submissions about the importance of causation under s3A of the Crime Act and other triable issues including whether items (knife, rope, tape) amounted to an 'offensive weapon' within s77(1) ([20], [23]). After viewing the videotaped interview of Akcay and closely analysing transcripts, Teague J concluded there was a significant risk of positive injustice if Akcay remained on a joint trial and ordered severance ([45], [48]).

Why the court decided this way

The ruling turned on a classic judicial balancing exercise between two competing considerations:

Policy reasons favouring joint trials, both for fairness to the prosecution and overall efficiency: where presence at the scene is common and each accused may seek to shift blame, it is generally desirable for a single jury to resolve credibility and culpability issues (Teague J quoting and applying principles from Vollmer at [32], [35]).
The risk of prejudice to an accused from evidence that would not otherwise be admitted against him at a separate trial, and the realistic prospect that a jury will not properly compartmentalise such evidence, producing 'positive injustice' (Teague J emphasised this as the threshold for severance at [45]).

Teague J found the balance tipped in favour of severance because of two interlocking practical features of the case:

Material differences between the accounts: the Goral brothers' accounts were consistent with each other and attributed rough conduct to Akcay; Akcay's account, once parsed, materially differed on who did what and how violently those acts occurred ([11], [14], [17], [26]). Given causation under s3A was the central issue, these differences mattered directly to the gravamen of the prosecution case ([20]).
The severe difficulty of understanding Akcay's interview: the videotape showed volunteer narrative by Akcay in broken English, with minimal police intervention. Teague J found the interview “extraordinarily scrambled and rambling” and that only detailed transcript work could reliably extract the intended attributions of conduct ([48]). He expressed concern that most jurors would not undertake the requisite analytic work and would therefore be prone to accept the clearer, consistent versions given by the Goral brothers ([45], [48]).

These facts produced a realistic danger that the jury would fail to compartmentalise and would be unduly influenced by the Goral brothers' interviews when assessing Akcay's culpability. Warnings and directions, while available, were unlikely, in Teague J's view, to reliably prevent this positive injustice in the specific circumstances ([29], [45], [48]). Accordingly, severance was ordered.

Before and after state of the law

Before this decision the law already required courts to weigh competing considerations: the desirability of a joint trial and the risk of prejudice. Teague J expressly relied on and applied the authorities emphasising those principles: R v Vollmer and Webb v The Queen. Vollmer summarises the default policy favouring joint trials but recognises severance where prejudice would produce injustice ([32], [35]). Webb (HCA) similarly discussed these competing factors and the need for careful directions where evidence admissible only against one accused is before a jury ([42]).

This decision applies those principles to the specific factual matrix of differing co-accused accounts and a hard-to-understand videotaped interview. It clarifies that where an accused's own interview is so opaque that a jury would likely accept the apparently clearer, corroborative accounts of co-accused, severance is appropriate to avoid positive injustice. Thus the case does not change the law but illustrates its practical application: significant inconsistency plus severe intelligibility problems can outweigh the usual reasons for joinder.

Key passages with plain-English translation

"[Under S.3A, there must be shown to be] '...an act of violence done in the course or furtherance of a crime the necessary elements of which include violence...'" ([20]). Plain English: The murder charge under s3A requires proof that a violent act occurred during the commission of another violent offence; therefore determining the nature and extent of the physical handling of the victim is central.
"Where people are charged jointly... it is desirable that the same jury try the issues." ([35]). Plain English: Courts prefer one jury to try co-accused together because it is efficient and helps avoid inconsistent outcomes; that preference is a strong starting point.
"I concluded that I should grant the application... because I considered that there would be a positive injustice unless I directed separate trials." ([45]). Plain English: The judge found actual unfairness would result from a joint trial, so he ordered separate trials.
"What Akcay says is extraordinarily scrambled and rambling." ([48]). Plain English: Akcay's recorded account was so disorganised and linguistically difficult that most jurors would struggle to understand it correctly, raising a real risk of misapplying other evidence against him.

What fact patterns trigger this precedent

This decision is triggered where the conjunction of the following features exists:

Joint charges where the central contested issue is the allocation of violent acts among participants, particularly causation for a serious result (murder under s3A) ([20], [26]).
Consistent statements by some co-accused implicating another co-accused, creating an appearance of corroboration between co-accused statements ([11], [14], [29]).
A co-accused's own contemporaneous statement/interview that is materially different in substance and yet is rendered difficult to understand by language difficulties, disordered narrative, or poor video/audio quality, such that most jurors would find parsing it too arduous ([17], [48]).
Trials likely to be short and tightly focused on the disputed interview material, increasing the practical influence of those interviews on the jury's decision-making ([29]).

When these elements combine, the judge may conclude that instructions to the jury are insufficient to cure the prejudice and that severance is necessary to avoid positive injustice ([45], [48]).

How later courts have treated it

The judgment itself recounts and applies earlier authorities (Vollmer, Webb, Farrell & Cotton and R v Nguyen) rather than announcing a novel rule. Teague J framed his decision as an application of the established severance principles to the distinctive evidential facts of this case ([32], [35], [42]). The practical lesson, that unintelligible or highly confusing interview evidence can produce severance because juries will likely favour clearer corroborative accounts, is the principal take-away likely to be cited in later severance applications. This decision thus serves as a fact-specific exemplar of applying the 'positive injustice' threshold rather than a change in legal principle.

Still-open questions

The judgment flagged (obiter) the s77(1) Crime Act issue about the meaning of "incapacitating" within 'offensive weapon' and indicated a preliminary view that a special direction would be required but did not decide the substance ([23]). How trial judges should craft that direction remains to be determined at trial.
The decision emphasises the practical difficulty juries face when parsing confused statements. It leaves open how much remedial work (edited transcripts, expert translation, repeated playing of audio with judge-led guidance) short of severance might suffice to cure prejudice in other cases. Teague J concluded these measures would be insufficient in this specific case ([48]); how close a borderline case might be handled remains a question for later fact patterns.
The ruling relies heavily on the judge's own viewing and transcript analysis of the videotape. The extent to which appellate courts will defer to such perceptions in other cases, versus expecting greater use of redaction or jury directions, remains to be tested.

This analysis is grounded in the reasons given by Teague J in R v Goral, Goral & Akcay [2001] VSC 245. It explains the court's application of severance principles to the particular evidentiary difficulties presented by the parties' interviews. It does not offer legal advice. Before acting on, relying on, or citing this summary or any draft document, get a qualified Australian lawyer to check it; Zoe can make mistakes.

Judgment (21 paragraphs)

[1]

[2001] VSC 245

[2]

Criminal Law - Ruling - Application for separate trial granted - Prejudice from combination of differing evidence and scrambled police interview

[3]

These are my reasons for my ruling, as I did on Wednesday 18 April last, that I would grant an application made on behalf of Suleyman Akcay for a separate trial of charges brought against him and two other accused, Michael Edmund Goral and David Henry Goral. On that day, the trial was listed for hearing before me of the three accused, each on three charges - aggravated burglary, armed robbery, and murder.

[4]

All three charges arose out of events which occurred in the early hours of Sunday 29 August 1999 at Lindenow in Gippsland. On that day, the licensee at a hotel in Lindenow, a Mr Pat Collins, was robbed in his house next to the hotel. Mr Collins was aged 56. He suffered from poor health. In the course of the robbery, Mr Collins was pushed over and held down. He was gagged and his arms and legs were tied together with rope. He remained that way for ten or more hours. He was taken to hospital and treated for broken ribs, for bruises to his face and various other parts of his body, and for a cut to this right leg which required stitches. He was encouraged to stay for a day or two in hospital. He said he preferred to go home, and did so later on the Sunday. On Wednesday 1 September, he was readmitted to hospital. He died in hospital on Friday 10 September, just over 12 days after the events at Lindenow. An autopsy was carried out. The cause of death was stated to be: "Multisystem failure in a man with alcoholic liver disease and congestive cardiac failure ten days post blunt trauma to left sided ribs."

[5]

Police investigations into the robbery had begun at Bairnsdale on the day of the robbery. After Mr Collins died, the extent of the police enquiries widened. The police came to assess the three accused as suspects. All three were interviewed by members of the Victorian Homicide Squad at Bundaberg in Queensland on Friday 1, and Saturday 2, October 1999. The police interest in the position as to causation is apparent from many of the questions put to the accused, as to matters potentially linked to the severity of the physical handling of Mr Collins and more particularly as to the potential cause of his broken ribs. Save as to who did the handling and as to how severe it was, the accounts given to the police by the three accused were substantially similar. It is apparent from what is said in the interviews that all three accused had information indicating that the physical handling of Mr Collins during the robbery was seen to be important in assessing responsibility for death.

[6]

What Michael Goral told the police of his own role in handling Mr Collins was little more than that he tied Mr Collins up. He did not say who taped on the gag. He also said that the tying was not done tightly, and that he loosened the gag and made sure the mouth was clear. He said nothing as to David Goral handling Mr Collins at all. What Michael Goral said of the handling of Mr Collins by Akcay included: that Akcay was a bit too rough with Mr Collins; that Akcay sent Mr Collins flying across the room; and that Akcay dropped his knees into PC's side. Michael Goral also said that he was worried that Akcay had a knife

[7]

David Goral said nothing to the police of his having handled Mr Collins at all. He said of Michael Goral only that he tied up Mr Collins and later loosened the gag. What David Goral said of the handling of Mr Collins by Akcay included: that Akcay got too rough with Mr Collins; that Akcay knocked Mr Collins flying; that Akcay was jumping all over Mr Collins; and that Akcay drove his knees into Mr Collins' lower back. David Goral also said that Akcay was carrying a big knife as a scare tactic or something.

[8]

The police spoke to Akcay after speaking to the Goral brothers. Close to the start of the interview, Akcay explained that he had been born and had spent most of his early life in Turkey, but had spent most of the last 15 years in Australia. Understanding his broken English is a difficult exercise for a number of reasons to which I will refer later. As to his involvement in the handling of Mr Collins, Akcay said that he pushed Mr Collins from behind, that Mr Collins fell, and that Akcay held Mr Collins down while Michael Goral and David Goral secured Mr Collins. Akcay agreed that he had his knees on the back of Mr Collins but said that that was only to hold him down.

[9]

There was a committal hearing in April 2000. There was a "Basha" hearing of evidence from a Professor Cade before me in March 2001. It was easy to infer, and I was told by Mr Smallwood Q.C., for Akcay, that the major issue on the charge of murder, which was brought under Section 3A of the Crime Act, would be as to causation. I was also told that there would be other issues. Under S.3A, there must be shown to be "...an act of violence done in the course or furtherance of a crime the necessary elements of which include violence...". I was told that one other issue would be as to whether, as to the charge of murder, there had been "an act of violence". Another would be as to whether, as to the charge of aggravated burglary, there had been an intent to assault (rather than "to rob") Mr Collins. Another would be as to whether, as to the charges of both aggravated burglary and armed robbery, it could be shown that the accused had with them an "offensive weapon".

[10]

It is appropriate that I briefly address two of those issues, and I start with the last-mentioned one. In the presentment, as to the charges of armed robbery and aggravated burglary, it is put that the accused: "...at the time had with them offensive weapons namely a knife, rope and tape." There is a definition of "offensive weapon" in S.77(1) of the Crime Act. It includes the word "incapacitating", which is not defined. The matter was but briefly adverted to in argument, when there was a short discussion as to what was said by Charles JA in R v Nguyen [1997] 1 VR 551 at 557. I formed a preliminary view that the jury would have to be told that "incapacitating" has a special meaning, but not as to what the jury should be told that that meaning was. Hanging in part on the determination of that question, would be whether the events could be seen to amount to an armed robbery or just a robbery.

[11]

As to the issue of whether, there had been "an act of violence", the answers given in the interviews of the accused men were, as between Michael Goral and David Goral, consistent. Akcay's actions, as described by them, could scarcely be characterised otherwise than as violent. On the other hand, Akcay's actions, as described by Akcay, might well not be so characterised.

[12]

Mr Smallwood, in pressing the application for a separate trial of the charges against Akcay, argued that there was a potential for extreme prejudice if there was a joint trial. He took me to various segments of the interview of the Goral brothers, adverting to the prejudicial material that the jury would have before them from the interviews. He argued that the prejudice would be aggravated by the circumstance that there could be seen to be corroboration by each brother of each other. He argued that the prejudice would be further aggravated by the nature of the interview of Akcay being extremely difficult to understand. He argued that the prejudice would be further aggravated by the circumstance that the trial should be a short one with a strong focus on the issue of causation. Inevitably, it was put, that would mean that the jury's focus would be strongly on the subject of what was said by each of the three accused as to the application of pressure to the ribs of Mr Collins by the knees of Akcay. Mr Smallwood accepted that a jury could be cautioned as to the need to appropriately compartmentalise admissible evidence, not using against one what was said in an interview of another. But he argued that there was a high risk that a jury would succumb to the temptation not to do so, in the particular circumstances of these interviews.

[13]

Mr McArdle, Q.C., who appeared with Mr Winneke for the prosecution, submitted that I should apply the general principles as set out in R v Vollmer [1996] VicRp 9; [1996] 1 VR 95 at 102, and that in doing so, I should reject the application. He made the point that the prosecution case was that the death of Mr Collins was substantially caused by the general maltreatment of Mr Collins at the hands of the accused, rather than only by what injuries could be seen to have been caused by the application of force to the ribs of Mr Collins. He pointed out that this was expected to be a short case, as the only major differences in the evidence against the three accused were those arising from the interviews, and that was a factor supporting a joint trial. He argued that the jury could be expected to abide warnings given by me as to the appropriate use of evidence. He also indicated that he would be amenable to the excising of various parts of the interviews to minimise the potential for prejudice

[14]

In Vollmer at 102-3, these points were made:

[15]

* Where people are charged jointly, particularly where there is no issue as to presence at the scene, but where an accused may be expected to attempt to cast the blame on other accused, it is desirable that the same jury try the issues.

[16]

* Separate trials may lead to inconsistent verdicts of a nature such as to bring the administration of justice into disrepute.

[17]

* A multiplicity of trials concerning the same events has its cost in human and community resources.

[18]

* On the other hand, there may be cases where the extent of prejudice flowing to an accused from the admission of evidence which would not be before a jury on a separate trial might be such as to create injustice.

[19]

In Webb v The Queen [1994] HCA 30; (1993-4) 181 CLR 41 at 89, Toohey J had made the same points as to the prima facie position, the risk of inconsistent verdicts("particularly when each accused tries to cast the blame on the other or others"), and administrative factors. He also noted the dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused - and the need to obviate the risk by express and careful directions to the jury. Also in Webb at 79-80, Deane J said that, and explained why, he did not subscribe to the view that the reasons which favour the joint trial of persons who are charged with committing an offence jointly are particularly strong in cases where such persons seek to cast the blame on another. In Farrell and Cotton (1990) 48 A Crim R 31, Hunt J took issue with the proposition that, in the usual case, the jury should see and hear all those who are alleged to have acted in common purpose, and concluded that in the case before him there would be a positive injustice unless he directed separate trials.

[20]

I concluded that I should grant the application before me because I considered that there would be a positive injustice unless I directed separate trials. I was mainly influenced to so conclude by a combination of two considerations. The first arises from the significant differences in what was said in the interviews as to who physical mishandled Mr Collins and as to how much mishandling there had been. The detail of those difference I have noted above. The second arises from conclusions I formed from watching the videotape of the interview of Akcay, and then spending a considerable period analysing five pages of the transcript of the interview covering questions and answers 245 to 269. I had to, and did, take time and trouble to maximise the prospect that I could understand the elements of what Akcay was saying to the police. At the relevant stage of the interview, Akcay is volunteering information. There is minimal intervention by the police.

[21]

What Akcay says is extraordinarily scrambled and rambling. I doubt that anybody could make much of what is said without working to and amending a transcript. I was troubled that only jurors with a bent for detail and a determination to master a difficult exercise would spend the time which would have to be spent to listen over and over to what Akcay says. The exercise involves separating the constituent parts of what is said in broken English, and attempting to ascribe to the appropriate person or person the liberally used pronouns "he" "they" and "we". The narrative by Akcay included a description of unfolding events, mixed up with a combination of quotes as to what Akcay said, quotes of what he said that others said, recollections of what he himself thought and speculation as to what he thought that others were thinking. Only after having made a detailed analysis, does it become very clear that Akcay's position as to how Mr Collins was physically handled is fundamentally different from that of Michael and David Goral. I was left with the strong impression that a jury would find it too arduous to make that detailed analysis. I concluded that there was a significant risk of positive injustice in that the jury would simply turn to, and accept, what was said by each of the two brothers, and in a way that each corroborated the other. For those reasons I ordered that there be a separate trial.