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[2024] VSC 655
General information, not legal advice.
Supreme Court of Victoria
2024-10-29
Croucher J
Original judgment source is linked above.
CRIMINAL LAW - Kidnapping and murder - Joint trial - Pre-trial rulings - All three accused charged with kidnapping AA - First two accused also charged with murder of KM - Crown alleges group of several youths kidnapped AA, forcing him to disclose whereabouts of KM and arrange a meeting with him - Several of group in white car, with AA in boot, and others from group in red car, drove to residence where KM located - White car struck KM on front lawn of residence - One or more from group assaulted KM, including by stabbing multiple times - One stab wound to chest fatal - Crown unable to say which member of group fatally stabbed KM or to assign specific role in attack to any individual - Murder put against two accused on basis that at least one in group murdered KM by fatally stabbing him ("the primary offender") and each accused involved either by way of assisting or encouraging primary offender to murder KM or because came to agreement, arrangement or understanding with primary offender that KM would be murdered - Kidnapping also put on basis of complicity - Five other co-accused pleaded guilty to either kidnapping or manslaughter - Crimes Act (Vic), & (c).
RULINGS 1 & 2 - Evidence that clothing and shoes alleged to be worn by two accused and others earlier in day disposed of in creek proximate to locus in quo shortly after alleged murder - Clothing and shoes discovered by police four to five days following alleged murder - Accused dispute presence at locus in quo at time of alleged murder - Whether impugned evidence, if accepted, could rationally affect (directly or indirectly) assessment of probability of existence fact in issue - Whether unacceptable risk jury would use evidence as incriminating conduct notwithstanding Crown eschews reliance on it for that purpose and notwithstanding proposed judicial directions limiting its use - Whether probative value of evidence outweighed by prejudicial effect - Evidence, when considered with other evidence, capable of being probative of fact in issue - Jury directions capable of eliminating risk of misuse of evidence - Evidence admissible - Evidence Act 2008 (Vic), ss 55, 56 & 137.
RULING 3 - Unavailable witness - Whether evidence of representations of unavailable witness admissible as exception to hearsay rule - Whether, notwithstanding representations made shortly after asserted facts occurred, and in circumstances that make it unlikely the representations were fabrications, some representations should be excluded because probative value outweighed by prejudicial effect, misleading or confusing in absence of ability to cross-examine unavailable witness - Most representations admissible, others inadmissible - Evidence Act 2008 (Vic), ss 65(2)(b) & (c), 76, 135 & 137.
RULING 4 - Application by third accused for separate trial on kidnapping - Whether trial with co-accused in murder and kidnapping would prejudice fair trial of third accused - Whether third accused's case would be "swamped" by evidence against co-accused of murder inadmissible against him - Whether separate consideration directions sufficient to overcome risk of "guilt by association" - Separate trial ordered - Criminal Procedure Act 2009 (Vic), s 193.
1 Zakaria Hagi Ali, GM and RS are charged with kidnapping AA (aged 17) on 16 October 2022. Mr Hagi Ali and GM are also charged with the murder of Khalid Mahat (aged 25) on the same day. At the time of the alleged offending, Mr Hagi Ali was aged 19, GM was 17,[1] and RS was 18.[2] Their joint trial on these charges is listed to commence in this Court on 5 August 2024.
2 This judgment comprises four pre-trial rulings on applications I heard last Tuesday, 23 July. Three of the rulings concern the admissibility of evidence at trial. The fourth concerns whether RS should be tried separately from his two co-accused.[3]
3 Very briefly, the prosecution case is to the following effect.
4 On 16 October 2022, a group of several youths kidnapped AA from outside an address in Reservoir. AA was forced to disclose the whereabouts of Mr Mahat and arrange a meeting with him, which he did. It is alleged that the three accused were part of that group and involved in the kidnapping.
5 Several of the group ultimately drove in a white Corolla, with AA in the boot, to a unit at 1 North Crescent in Heidelberg West where Mr Mahat was located. CCTV footage from a nearby home shows Mr Mahat walking along the footpath in front of the unit. Next, the CCTV shows the white Corolla crashing into Mr Mahat while he is on the footpath, before ploughing through the front fence and onto the lawn. The car came to rest against the wall of the unit. This occurred at around 3:35 p.m.
6 The CCTV also shows that, about 15 seconds later, two figures run from the street towards the front of the unit. A second or two later, a red Corolla arrives and is parked in the street in front of the unit. As this is occurring, a third figure can be seen behind the red car moving from the street towards the unit. A second or so later, a person exits the driver's side of the red car, although it is not clear whether the exit was from the rear or the front door. As that person moves towards the footpath, several others emerge from the front lawn of the unit and head towards the red car. While it is not clear how many there are, several persons then get into the red car before it drives out of view. The white car was left at the front of the residence.
7 It is alleged that Mr Hagi Ali and GM were among those in the group who attended 1 North Crescent in either the white car or the red car.
8 The prosecution case is that, in the seconds between being struck by the white Corolla and the departure in the red Corolla, one or more from the group assaulted Mr Mahat, including by stabbing him multiple times. One particular stab wound, which was to Mr Mahat's chest, penetrated his heart. This was the sole fatal wound.
9 The Director accepts that, on the evidence, it cannot be said which member of the group fatally stabbed Mr Mahat. Nor is it possible either to assign any specific role in the assault to any particular individual in the group or to say whether any particular individual participated in the assault at all.
10 It is in this context that the murder charge is put against each of Mr Hagi Ali and GM on two bases in complicity. In particular, it is alleged that at least one in the group ("the primary offender") murdered Mr Mahat by fatally stabbing him to the chest and that each of Mr Hagi Ali and GM was involved by way of assisting or encouraging the primary offender to murder Mr Mahat or because he came to an agreement, arrangement or understanding with the primary offender that Mr Mahat would be murdered.[4]
11 The Director also puts the kidnapping on the basis of complicity, although I do not understand the particular form of complicity to have been identified as yet.
12 I should add that five other co-accused were initially charged with both kidnapping and murder. They are Yusuf Ali (aged 18 at the time of the alleged offending), Abdisamad Farah (who was 19), AS (who is RS's brother, and was 16), MI (who was 17) and MB (who was 17). Their matters have settled as pleas of guilty before another judge of this Court to either kidnapping or manslaughter, and they are yet to be sentenced.
Rulings 1 & 2: Evidence of discovery of clothing and shoes at Edgars Creek
13 I turn now to the matters on which I am called to rule, commencing with Rulings 1 and 2. These two rulings concern evidence that, shortly after Mr Mahat was assaulted, at least some in the group caused clothing and/or shoes (observed on CCTV footage earlier in the day to be worn by Mr Hagi Ali, GM and others in the group) to be dumped in Edgars Creek, which is a short drive from North Crescent.
14 The items were found in the creek by police on 20 and 21 October 2022 - i.e., four to five days after the alleged murder. Of the items found, it is alleged that Mr Hagi Ali had worn a pair of Nike TN runners and a North Face jumper. In the case of GM, the item found and alleged to have been worn by him earlier was a grey puffer jacket with a Tommy Hilfiger logo on the left chest region.
15 Other items found in the creek are alleged to have been worn earlier by others in the group - namely, black tracksuit pants worn by one, black and white Nike TN runners and a grey Nike zip-up jacket worn by another, and a grey hooded Michael Jordan jumper worn by yet another.
16 Mr Hayward, who appears with Ms Wallace for the Director, explained that, if admitted at trial, the evidence would be relied on in a circumstantial fashion to assist in proof that Mr Hagi Ali and GM were present at 1 North Cresent when the alleged murder occurred.
17 Mr Hayward expressly disavowed use of the evidence as evidence of incriminating conduct. In his submission, the jury could be directed, in accordance with s 23 of the Jury Directions Act 2015 (Vic), in a manner warning them not to use the evidence in that fashion and limiting its use only for the purpose contended for by the prosecution.[5]
18 Mr Edney, who appears with Ms Foote for Mr Hagi Ali, indicated that, while his client would plead guilty before the jury to kidnapping, he would plead not guilty to murder. He added that Mr Hagi Ali denies that he was present in the front yard of the premises at North Crescent at the time Mr Mahat was killed.
19 Mr Edney submitted that, contrary to the prosecution case, it cannot be said that the Nike TN runners and North Face jumper Mr Hagi Ali was wearing, as depicted in the CCTV footage from Northland Shopping Centre and at Seston Street in Reservoir earlier in the day, are the same runners and jumper found at Edgars Creek. In his submission, the evidence cannot be relevant, within the meaning of s 55 of the Evidence Act 2008 (Vic), to proof that Mr Hagi Ali was present at the killing, and is therefore not admissible by force of s 56(2).
20 Alternatively, if the evidence is relevant, he submitted that its probative value is low and is outweighed by its prejudicial effect. In his submission, substantial prejudicial effect would flow from a jury impermissibly overestimating the capacity of the evidence to assist in proof that Mr Hagi Ali was present at 1 North Crescent at the relevant time or by using it in a manner logically unconnected with the issues in the trial. Further, in his submission, this risk of overestimation or misuse could not be ameliorated adequately by judicial direction. Accordingly, the evidence must be excluded pursuant to s 137 of the Evidence Act.
21 In GM's defence response, it is said that, among other things, the primary issues in his trial will be whether the prosecution can prove his presence at the times and places of the alleged offences.
22 Mr Casement, who appears with Ms Andrews for GM, submitted that the evidence should be excluded under s 137 of the Evidence Act because it is likely to be used by the jury to infer a consciousness of guilt. As he said, it may be one thing to find clothes or the like in an accused's bedroom; but it is entirely another to find them dumped in a creek near the locus in quo soon after the alleged offending. Further, in his submission, any judicial direction designed to offset that risk would serve only alert the jury to that impermissible use of the evidence without preventing them from reasoning in that fashion.
23 I accept that the CCTV footage of the accused when wearing the clothing and shoes is of variable quality, and, in some instances, is of poor quality. However, it is, I think, possible to discern sufficient similarities between the shoes and clothing seen in the CCTV footage on the one hand and the items found at Edgars Creek on the other to conclude that they are the same types of shoes and clothing.
24 Mr Edney was correct to submit that the fact that the clothing and shoes are generic and popular, and that they were found in a public creek four or five days after the alleged murder, lessens the probative value of the evidence. However, the possibility that it is open to conclude that the items found are the same types of shoes and clothing worn by the accused earlier in the day is not to be considered in isolation. There is also the evidence of the persons the two accused were with earlier, of what their co-accused were wearing, and when and where they were located, as well as the CCTV footage of the persons near Edgars Creek soon after the alleged murder, the relatively short distance to the creek from North Crescent, and the other clothing and runners found in the creek. When those matters are added to the mix, I am satisfied that the impugned evidence could rationally affect the assessment of the probability of the existence of the fact in issue - namely, whether, in each accused's case, he was present at 1 North Crescent at the time of the alleged murder.
25 Thus, I am satisfied, pursuant to ss 55 and 56 of the Evidence Act, that, in each case, the evidence is relevant, and is therefore admissible, unless an exclusionary rule applies.
26 I turn to the exclusionary rule relied on by Mr Edney and Mr Casement. Section 137 of the Evidence Act provides as follows:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
27 I accept Mr Edney's submission to the effect that there is a risk that, uninstructed on the limitations of the evidence, a jury may overestimate its probative value. However, I am satisfied that a jury would understand and comply with directions pointing out the potential weaknesses in the evidence and emphasising the need to be careful not to overestimate the probative worth of the evidence.
28 I also accept that, uninstructed to the contrary, a jury may well use the impugned evidence as evidence of incriminating conduct. In this respect, Mr Casement was right to contrast this evidence with the finding of potentially relevant clothing in an accused's bedroom soon after an incident. However, notwithstanding that risk, I am also satisfied that a jury would understand and comply with directions to the effect that they are not to use the evidence for any purpose relating to incriminating conduct, and are only to use the evidence for the purpose identified - namely, as potentially assisting in proof that the accused were present at 1 North Crescent at the relevant time.
29 Thus, I do not think that, within the meaning of s 137, the probative value of the impugned evidence is outweighed by the danger of unfair prejudice to either accused.
30 Accordingly, my conclusion on each of Rulings 1 and 2 is that the prosecution may lead the impugned evidence at trial against each of Mr Hagi Ali and GM.
Ruling 3: Representations of unavailable witness as exception to hearsay rule
32 Farhiya Ahmed was present in her unit at 1 North Crescent when the alleged murder took place. She witnessed some of the critical events at the front of her unit, and she saw the devastating aftermath as the police and ambulances attended.
33 Because of Ms Ahmed's unavailability as a witness at trial, the Director has filed a hearsay notice listing numerous representations[6] she made to police officers at her premises shortly after the assault on Mr Mahat.
34 There is no dispute that Ms Ahmed is an unavailable witness. The evidence is that she went overseas in April 2023 and has not returned to Australia, and that no contact has been, or can be, made with her.
35 Some of the representations sought to be relied on were recorded on a body-worn camera by Acting Sergeant Joanna Woods when she attended the scene as one of the first responders. Another representation was made to Detective Senior Constable Michelle Belaj during the same period. Most of the representations sought to be relied on were contained in two written statements Ms Ahmed made to First Constable Brent Roberts at the scene later in the afternoon.
36 The first nine representations in the Director's notice are those recorded on the body-worn camera by A/Sgt Woods. They are as follows:
37 The tenth representation listed in the notice was made to Detective Belaj (who was in uniform at the time). In particular, it is said that Ms Ahmed said that:
38 I have played the body-worn camera footage in chambers. According to the time stamp on the footage, these first ten representations were made at around 3:56 p.m. - so, about 20 minutes after the alleged murder. At this time, Ms Ahmed was standing in the driveway of her premises, only metres away from ambulance officers who were desperately attempting to save Mr Mahat. There were several other police officers and ambulance officers, and some other civilians, including AA, in the vicinity at the time. Things were a tad hectic. It is apparent that Ms Ahmed was very distressed - and understandably so - when she was speaking to A/Sgt Woods and Detective Belaj. After speaking to them, Ms Ahmed can be seen in the footage in her driveway on the telephone, apparently speaking in a foreign language, and she is still in a very distressed state.
39 The remaining representations listed in the notice were made to F/C Roberts and are contained in the written statements he took from Ms Ahmed the same afternoon. In her first statement, which was handwritten by F/C Roberts and was signed at 5:45 p.m., Ms Ahmed said the following:
40 In her second statement to F/C Roberts, which was typed and unsigned but had provision for a signed acknowledgment at 6:22 p.m., Ms Ahmed said the following:
41 I heard viva voce evidence from F/C Roberts concerning the taking of Ms Ahmed's statements. Among other things, he said that Ms Ahmed was "quite distressed" and "emotional", and sometimes crying, when making her statements to him. Unsurprisingly, her emotional state worsened after she was informed Mr Mahat was deceased. In his notes, F/C Roberts also described Ms Ahmed as "extremely erratic", although he said he was ultimately able to have a clear conversation with her.
42 While Mr Hayward commenced his submissions by relying on both s 65(2)(b) and (c) of the Evidence Act to justify the admission into evidence at trial of Ms Ahmed's representations, it became apparent rather quickly that his submissions were really confined to reliance on paragraph (b).
43 Section 65(2)(b) and (c) are in these terms:
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation -
...
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c) was made in circumstances that make it highly probable that the representation is reliable; ...
44 Mr Hayward submitted that, in accordance with s 65(2)(b), I should conclude that the representations were made shortly after the asserted facts occurred and that they were made in circumstances that make it unlikely that they were fabrications. Mr Casement did not challenge this submission. In the course of submissions, I indicated that I agreed that this provision was satisfied.
45 However, I raised with Mr Hayward my concern that, notwithstanding satisfaction of the tests in s 65(2)(b), some of the representations might properly be excluded from evidence in accordance with s 135 or s 137 of the Evidence Act, particularly in circumstances where there had never been any cross-examination of Ms Ahmed, and she could not be cross-examined at trial. In particular, the representations numbered 7, 10, 19, 20 and 22 struck me as being problematic.
a) representation 7 was that "I saw everyone had a knife";
b) representation 19 was that "When I went out the front I observed [four] masked people coming at me and another from a Red Toyota Yaris, which was in the middle of the street";
c) representation 20 was that "I also observed [four] more people around a white car that had hit my house"; and
d) representation 22 was that "all of them [were] wielding long knives, [about] 30 cm long".
47 Mr Hayward accepted that those representations, on their face, cannot be accurate as to the facts asserted. This is because he accepted that the CCTV footage shows that those who were in the vicinity after Mr Mahat was struck by the car did not number eight persons (i.e. Ms Ahmed's four plus four), and, further, that it could not be said that all had knives, let alone that all were wielding them.
48 However, in his submission, defence counsel could overcome any inaccuracy or unfairness in those representations by saying to the jury, "That may have been her impression, but when one compares it to the CCTV, you couldn't accept it." This, Mr Hayward added, is a submission he would accept before a jury.
49 Further, I understood Mr Hayward to submit that, while representation 10 ("it was African kids who were 'balaclavad' who had done it") might be taken as implying that all were directly responsible for the assault (and therefore the killing), and while he appreciated the illicit prejudice that might attach to any ambiguity in that respect, defence counsel could deal with that by submitting that, as is required by law, their clients could not be convicted unless the elements of complicity were established.
50 As to all of these inaccuracies or ambiguities in Ms Ahmed's representations, Mr Hayward said that he would submit to the jury that they must bear in mind that Ms Ahmed "has undergone a traumatic experience, and that she might not be the most reliable narrator" but that "what we have here is what we can see from the footage". In other words, his proposed submission would concede an element of unreliability as to facts asserted in these particular representations.
51 Mr Casement submitted that, notwithstanding the points that may usefully be made by reference to other evidence (such as the CCTV footage) about the inaccuracy of the numbers of persons or whether all were wielding knives, having those representations before the jury, without the ability to cross-examine the witness, still risks the evidence being misused. In those circumstances, in his submission, the evidence should be excluded pursuant to s 135 or s 137.
53 First, I am satisfied that Ms Ahmed is unavailable to give evidence within the meaning of s 65(1) of the Evidence Act.
54 Second, I am satisfied, within the meaning of s 65(2)(b), that the representations sought to be led in evidence by the prosecution were made by Ms Ahmed shortly after the asserted facts occurred and that they were made in circumstances that make it unlikely that they were fabrications.
55 Thirdly, I am satisfied that, notwithstanding the inability to cross-examine Ms Ahmed about her representations, there are no discretionary considerations allowing or compelling exclusion of the representations in the notice numbered 1 to 6, 8, 9, 11-18, 21, and 23 to 43.
56 Fourthly, however, I am satisfied that representations numbered 7, 10, 19, 20 and 22 should be excluded pursuant to s 135 and/or s 137 of the Evidence Act.
57 Section 135 provides that the Court "may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might ... (a) be unfairly prejudicial to a party; or (b) be misleading or confusing". I extracted the terms of s 137 earlier in these reasons, and need not repeat them here.
58 In Vitale v The Queen, Priest JA acknowledged that, even though s 65 recognises that evidence of representations of an unavailable witness may be admissible notwithstanding the inability of the accused to cross-examine that witness, "there may be cases in which the inability will be determinative of an application to exclude evidence under s 137".[12]
59 In my opinion, this is such a case with respect to some of Ms Ahmed's representations. In particular, in circumstances where - fairly and correctly - Mr Hayward concedes that Ms Ahmed's representations as to the number of persons coming towards her and as to whether all of them either had or were wielding knives seem to be in conflict with the CCTV evidence (such as it is) and are unlikely to be accurate, I think that the probative value of those representations is low. Moreover, I am satisfied that the probative value of the representations is outweighed by the danger of unfair prejudice to the accused - namely, the unfair prejudice in giving the evidence of those representations undue weight.
60 I do not accept that, just because counsel for the defence may be able to persuade a jury not to take those representations at face value, and just because counsel for the Director would accept that submission, the evidence should be admitted. On the contrary, if that is the true state of the evidence - i.e., if it suffers from that level of unreliability or difficulty - it should not be admitted.
61 Accordingly, I am persuaded that, pursuant to s 137 alone, I must refuse to admit evidence of the representations numbered 7, 19, 20 and 22 in the notice.
62 Further, it will have been noted that I have depicted representation 19 as having a strike-through in the words "and another". This reflects Ms Ahmed's written statement, which she initialled beside the strike-through of those words. F/C Roberts was unable to remember the circumstances in which this occurred, other than to say it must have been done when he was reading the statement back to Ms Ahmed.
63 But, as Mr Casement submitted, the potential meaning of the representation with those words deleted is quite different, and potentially importantly so, from its potential meaning with those words included. For example, with the words deleted, the representation is capable of meaning that four masked people came at Ms Ahmed from the red car; whereas, with the words included, it is capable of meaning that only one came at her from the red car and the other four came at her from some unspecified position.
64 Thus, given that F/C Roberts was unable to shed any meaningful light on the matter, absent cross-examination of Ms Ahmed, the probative value of the evidence is substantially outweighed by the danger that it might be misleading or confusing, or unfairly prejudicial to the accused.
65 Accordingly, I would exercise the discretion reposed in this Court by s 135 to refuse to admit representation 19 on that basis as well.
66 As for representation 10 ("it was African kids who were 'balaclavad' who had done it"), I am satisfied that it suffers from at least two vices, neither of which can be cured absent cross-examination of Ms Ahmed.
67 First, when Ms Ahmed says African kids had "done it", this, I think, is ambiguous. This is because, in context, "done it" is capable of conveying either that all of those persons had directly harmed (and thereby killed) Mr Mahat or that they as a group were responsible for the harm (or his death). Thus, I think that there is an unacceptable danger that representation is misleading or confusing, and that this danger substantially outweighs the probative value of the representation. Accordingly, I would exercise the discretion to exclude it under s 135.
68 Second, in so far as the latter interpretation is concerned - that they as a group were responsible - it can be no more than a rank opinion that is not for Ms Ahmed to give. This was not a point raised in argument, but it must be correct. Accordingly, in so far as it is opinion evidence, it must be excluded under s 76 of the Evidence Act as well.
69 Thus, either way, representation 10 cannot go before the jury either.
70 Finally, I wish to add this. I recognise that my ruling will mean that there are no representations from Ms Ahmed before a jury about the assailants having a knife or knives. However, the injuries to Mr Mahat make it plain that he was stabbed with a knife or knives or some sort of sharp implement or implements. Thus, at least someone in the group must have had and used a knife or a sharp implement. In this way, the prosecution will not be deprived of evidence as to how Mr Mahat's death was caused. This ruling, however, I hope, will ensure that the jury does not have before them representations that Mr Hayward accepts are inconsistent with other evidence and which, if before them without an ability to test them by cross-examination of Ms Ahmed, would have been of low probative value, misleading or confusing, and would have courted an unacceptable danger of unfair prejudice to the accused.
Ruling 4: Application by RS for a separate trial
71 I turn now to Ruling 4, which concerns RS's application to be tried separately from his two co-accused.
72 Section 193(2) of the Criminal Procedure Act 2009 (Vic) ("the CPA") provides that, "[i]f an indictment names more than one accused, the court may order that charges against a specified accused be tried separately".
73 Section 193(3)(b) provides that the Court may make an order under s 193(2) if it considers that "a trial with the co-accused would prejudice the fair trial of the accused".
74 Mr Page, who appeared for RS, made several submissions, including the following.
75 First, it is significant that RS is charged only with kidnapping, whereas his co-accused are charged with kidnapping and murder.
76 Second, there is no dispute that RS's alleged involvement in the kidnapping ceases when he drives the red Corolla to his grandmother's house.
77 Third, the balance of a joint trial after that point will include evidence that is not admissible in RS's case but which will occupy a large part of that joint trial. For example, after RS is dropped off at his grandmother's house, another person then drives the red Corolla away. At this time, the prosecution case is that AA is in the boot of the white Corolla, which is ultimately driven to the scene of the alleged murder, as is the red Corolla. Then there will be extensive telephone evidence, as well as the evidence of the subsequent disposal of clothing and shoes in the creek, all aimed at proving the co-accused were at 1 North Crescent at the relevant time. Further, there will be forensic, CCTV and medical evidence concerning the alleged murder itself. In Mr Page's submission, this evidence would swamp RS's case.
78 Fourth, Mr Page submitted that a number of things would create an unacceptable risk of a jury finding RS guilty of kidnapping because of his association with his co-accused and, thereby, the alleged murder. They include the following:
a) the violence and brutality of the killing;
b) that it is alleged that Mr Mahat was murdered by young persons of African descent carrying knives in a time of prevalent knife crimes;
c) that RS is connected with the same persons, one of whom is his brother, and that he too is of African descent; and
d) that there is, on the prosecution case, a connection between the alleged kidnapping and murder - namely, that AA was kidnapped to force him to disclose the whereabouts of Mr Mahat, who was immediately run over and stabbed to death once he was located.
79 Finally, Mr Page submitted that, on his estimate, if tried alone, RS's trial would take only in the order of seven days, whereas the estimate for the joint trial is in the order of six weeks.
80 Mr Hayward submitted that there are very good reasons for co-accused to be tried together, including the avoidance of calling evidence twice, and the associated inconvenience to witnesses and the necessary expense that course can cause.
81 Second, he submitted, separate trials can also result in inconsistent verdicts.
82 Third, while he was reluctant to place a specific measure on it, Mr Hayward submitted that there will still need to be considerable evidence led in the trial on only the kidnapping (as distinct from the murder), whether conducted as joint trial or a separate trial.
83 Fourth, he accepted that, if there were no separate trial, much evidence would be adduced that would not be relevant to RS, but submitted that that would not swamp his trial.
84 Fifth, Mr Hayward accepted that there is a risk of guilt by association, but submitted that it will be clear to a jury that RS ceased any involvement from the time he was dropped off at his grandmother's house.
85 Finally, he submitted that any such risk of prejudice can be cured by standard directions concerning separate trials.
86 In my opinion, a joint trial with his co-accused would prejudice the fair trial of RS to such an extent that it is necessary and appropriate to order that he be tried separately.
87 As Mr Hayward conceded, there would be a lot of very prejudicial evidence in a joint trial that has nothing to do with the case against RS and yet which would create a risk of guilt by association. That risk would be increased substantially in circumstances where the motive alleged for the kidnapping was to extract information as to the whereabouts of Mr Mahat, who, when found, was immediately run down with a car and then fatally stabbed. Further, I accept that that risk would be increased even further by the fact that we are living in a time of heightened community concern about the prevalence of knife crimes by young persons, including those of African descent, and that RS's co-accused are all young persons of African descent, one of whom is his brother.
88 While I would like to think that firm and clear directions about separate trials would ensure that any jury would consider RS's case wholly separately from the cases of his co-accused, and that, notwithstanding the link between the alleged kidnapping of AA and the killing of Mr Mahat, they would consider his case completely dispassionately, I fear that, in this particular case, there is an unacceptable risk that directions of that kind would fall on deaf ears, at least in some cases. And so it is that, with some reluctance, I am satisfied that it is too much to expect that all twelve on a jury would remain entirely objective in this case if RS were tried with his co-accused.
89 Accordingly, I think that I must order that RS be tried separately.
90 In view of these rulings, I shall hear counsel on the proposed further conduct of these trials.
[1] The second accused is described as GM and the alleged victim of the kidnapping is described as AA because they were under the age of 18 (and therefore were children) at the relevant time and because this matter arises out of proceedings in the Children's Court. See s 534 of the Children, Youth and Families Act 2005 (Vic).
[2] While the third accused was 18 at the relevant time, I have described him as RS because naming him would tend to identify his brother AS, who was 16 at the time and is another co-accused.
[3] The reasons in this judgment were published to the parties at the time of the rulings on 26 July 2024. However, as there were trials pending in the near future, these rulings were not published to the world at large. Since all potential trials in these and related matters have concluded, it is now appropriate to publish those rulings in that way. This version of the judgment has been edited slightly to align with the use of pseudonyms employed in other judgments connected with this matter.
[4] Pursuant to the Crimes Act 1958 (Vic), s 323(1)(a) & (c).
[5] I should add that, originally, the prosecution sought to lead evidence that a knife was also found in the creek. However, in the course of submissions, Mr Hayward abandoned reliance on the finding of the knife so as to lessen the illicit prejudice that might be said to flow from this evidence (including that as to a jury employing incriminating conduct reasoning eschewed by the Director).
[6] While the representations in the notice are numbered starting at "1" and ending in "43", implying that there are 43 representations, the numbering skipped at 24, 29, 30, 31, 33 and 38, meaning there are, in truth, 37 representations listed. See below.
[7] In the statement, Ms Ahmed spelled Mr Mahat's given name each time as Khlid, rather than as Khalid (even though she had spelled it the latter way when speaking to A/Sgt Woods earlier).
[8] The strike-though is deliberate. See below.
[9] While the words "of the white car" appear in the notice, they do not appear at this point in the draft unsigned statement.
[10] In the draft statement, Ms Ahmed added: "this is when I first tried to help Khlid, I have pulled him out, but panicked due to the amount of blood".
[11] In the draft statement, Ms Ahmed added: "and I think they turned onto (Outhwaite) Street or similar, it's the street pass North crescent".
[12] Vitale v The Queen [2020] VSCA 237 at [91] (per Priest JA, with whom Beach JA and T Forrest JA agreed).
R
Hagi Ali & Ors