R v Iaria and Panozzo [2004] VSC 110

Supreme Court of Victoria|2004-04-02|Before: Nettle J

CRIMINAL LAW - practice and procedure - severance - application for separate trial - test to be applied.

This is an application by the accused, Richard Panozzo, for a separate trial.

Secondly, it is said that given the course of the last trial, it is likely that the accused Iaria will elicit considerable evidence of bad character against Panozzo which would be inadmissible against him if he were tried alone and that whatever direction might be given to the jury to disregard that evidence for the purposes of judging the case against Panozzo, the jury would find it extremely difficult to put the inadmissible evidence out of their minds.

Thirdly, it is said that the strength of the case against Iaria is so much more than that against Panozzo, that the inadmissible evidence is likely to assume critical proportions and thus, even if in other circumstances a judicial direction to the jury to disregard the inadmissible evidence might be regarded as effective, that is not so in this case.

I take the principles which apply in this state to an application for separate trials to be as set out in the pronouncements of the Court of Criminal Appeal in R v Demirok[1]; R v Gibb and McKenzie[2]; Jones and Waghorn v R[3]; and Heaney v R[4]. The overriding principle is of course one of fairness to the accused, but in order to give that principle practical content, there are to be found beneath it a number of propositions based on or derived from the need to afford fairness to all parties, but particularly to the accused.

Relevant to the application in hand, those propositions to include:

s first, that where two or more persons are charged with murder at which all were present at the time of the killing, the interests of justice ordinarily require that they be tried together;

s secondly, the fact that one accused alleges that he was coerced or otherwise influenced by the other will generally be a reason for adhering to a joint trial;

s thirdly, while the Crown may be inhibited to some extent in the evidence that it may adduce at a joint trial, an accused should be allowed to lead in his defence, whether by calling witnesses or cross-examination, any evidence which is relevant to his defence;

s fourthly, while the court retains an exercise to exclude such evidence, the occasions for exercise of the discretion will be rare and it is not to be exercised simply because one accused wishes to elicit evidence of bad character of another accused;

s fifthly, care must be taken to explain to the jury that the case against each accused must be considered separately; and

s sixthly, there are some cases in which such a direction will be ineffective and they may occur where one or at least perhaps more than one of the following considerations apply: where out-of-court statements of co-accused contain grave allegations of bad character of the accused; where there is evidence irrelevant to any issue between the Crown and the accused and which could not have been led at a separate trial of the accused but is admissible as to an issue between the Crown and the co-accused and is highly prejudicial to the accused; where evidence irrelevant to any issue between the Crown and the accused is admissible against a co-accused, and as against the co-accused serves to corroborate or reinforce the evidence of an eyewitness against the co-accused, and as a result the jury would be likely to believe the eyewitness, not only in what he or she may say against the co-accused, but also in what he or she may say as against the accused, at least where the Crown places heavy reliance upon that witness to implicate the accused and the evidence is open to serious challenge.

Each of the cases to which I have referred acknowledges the obvious difficulty faced by a trial judge when asked to rule upon a separate trial application at the outset of the trial. Plainly, he or she cannot foresee the course that the trial will take. Thus, consistently with the principle that those who are jointly charged should be tried together, it is ordinarily appropriate for a judge to take the view that the application be refused and to proceed upon the basis that it will be sufficient to guard against any prejudice that might otherwise result from the receipt of evidence against one co-accused that is not admissible against the other to identify for the jury what is and is not admissible against each accused and to direct them to act accordingly.

This case, however, is different to most, in as much as in this case the accused has been tried once already, and therefore one has some idea from what occurred on the last occasion what is likely to occur the next time round; even if one cannot be certain or even confident that it will happen again. In the circumstances, I think that it would be less than realistic and therefore less than fair to the applicant to approach the application otherwise than upon the basis that there is at least a significant possibility that the course of evidence in the coming trial will be not dissimilar to the last.

On that basis I turn to the specific complaints which have been made about the evidence likely to be adduced that would be inadmissible against the applicant.

I start with the out-of-court statements by the co-accused Iaria. Attention has been directed to a number of passages in records of interview and other out-of-court statements of Iaria in the depositions at pp.159, 1931, 1656, 1846, 1606. In those passages there are to be found statements made by Iaria in which, to begin with, he claimed to have had nothing to do with the offence alleged and inferred that it was someone called "Rob" who fired the shot. Later, as he was repeatedly interviewed, he shifted his position. In the course of one of the later interviews he stated that the accused Panozzo was present. And in the course of another, he stated that it was Panozzo who took off after Polibio Francioli after Peter Francioli had been shot. A further significant out-of-court statement was made by Iaria to an undercover policeman whilst locked up in gaol. In response to questions put to him by the policeman, Iaria responded that the man who had been with him at the time of the offence was of low character, likely to take off, and was involved in drugs and other such activities including assault every weekend. Finally, towards the end of that sequence of interviews Iaria squarely implicated the co-accused Panozzo claiming that it was Richie (meaning thereby Panozzo) who fired the shot that killed the deceased and that it was Richie (meaning thereby Panozzo) who chased after Polibio Francioli and that Richie was wearing a red jacket at the time.

All of that evidence is said to be damaging to the applicant but the last of it is said to be of special significance, because it is contended it is critical to the Crown's case to establish that Panozzo was wearing a red jacket on the night on which the offence is alleged to have occurred. Evidence was given by Polibio Francioli that the man who chased after him was wearing a red jacket. Hence the out of court statement of Iaria that Panozzo was wearing a red jacket on the night in question would make it more likely that it was Panozzo who was involved, rather than a third party.

Mr Lewis submitted on behalf of Panozzo - and, in a sense, I think that he is right - that this is an identification case, and therefore at least at one level in principle similar to R v Waghorn. Putting it at its most basic, in order to place Panozzo at the scene of the crime, in the sense of being directly involved rather than standing off at some distance as he claimed to police, it is important to the Crown case to establish that Panozzo was wearing a red jacket on the night in question and thus that it was he whom Polibio Francioli saw and subsequently described as the chaser. The fact that Iaria made one or more out-of-court statements to police in which he said that Panozzo was wearing a red jacket on the night in question would, if it were taken into account against Panozzo, provide some support for that contention. There was, however, other evidence that Panozzo was wearing a red jacket at the time. It includes evidence given by Panozzo's former employer between pp.1349 and 1353 of the transcript of the first trial, that on the day before the night in question Panozzo was wearing a red raincoat-type jacket; evidence given by Panozzo's brother, Steven Panozzo, at transcript pp.1375-6, during which he produced a red jacket that he said he had lent to Panozzo the previous ski season, and which he recovered from his parents' home where Panozzo was living at the time of the alleged offence, only days after the alleged offence is said to have occurred; and the remarkable coincidence that the jacket which Steven Panozzo said that he had lent to the accused Panozzo and recovered from the parents' home bore a "Pal" label of the sort used by the Uncle Ben's Corporation as a promotion for one of its products and the fact that Panozzo's employer said that the raincoat-type jacket that Panozzo was wearing had a "Pal" label on it.

I accept that the statement made by the accused Iaria to police that Panozzo was wearing a red jacket on the night of the alleged offence would, if taken into account, be damaging to the accused Panozzo; for the simple reason that it would go to support other evidence suggesting that Panozzo was wearing the red jacket on the night in question and was therefore chasing after Polibio Francioli rather than standing off at a distance as he contends. But in light of the other evidence I am confident at this stage of the trial that such prejudice as that might cause can be eradicated by appropriate directions to the jury that what was said by Iaria to police in out-of-court statements is inadmissible against his co-accused Panozzo. Given the simplicity of the issues involved, it appears to me that this case is of the kind described by the South Australian Court of Criminal Appeal in R v Gillard[5] in the terms that:

"In such case there would be no doubt or confusion in the jury's mind about the inadmissibility of statements made by [one accused] in the case against the [other accused]."

I turn to the second submission concerning the evidence of bad character which may be adduced by Iaria in the course of the retrial. For completeness, I think it is necessary that I state it at least in summary form.

Reference was made to evidence given that Panozzo was violent[6]; evidence that there was a current intervention order in place[7]; evidence that Panozzo had made threats to a woman[8]; evidence that Panozzo had made threats to hang Daniel Sharp, a man associated with a woman of whom Panozzo was fond[9]; evidence that Panozzo had obtained tablets from an epileptic and mixed them with whisky for the purpose of consumption[10]; evidence that the woman with whom Panozzo was associated had, after a bibulous occasion at a hotel to celebrate a birthday party, held the intention for some time to charge him with some unspecified offence but later changed her mind[11]; evidence that Panozzo had threatened a man associated with the woman of whom he was fond[12]; and other evidence of threats to persons associated, in one form or another, with the woman of whom Panozzo was fond[13]. It was also submitted, but it became apparent that it was not the case, that there was evidence that Panozzo had threatened his brother, Steven Panozzo, with violence.

Each of those pieces of evidence that have been identified is detrimental to some extent; because each of them detracts from the character and credit of Panozzo. But in assessing the likely effect of that evidence on the mind of the jury, it needs to be understood that the principal defence advanced last time by Panozzo was that he dealt in drugs and he had gone to the farm on the night on which the deceased was killed in order to purchase marijuana. A good deal of the sting of the evidence is taken away once that is borne in mind.

Reliance was also placed upon evidence given[14] that at one stage Panozzo had shot an arrow gun at Polibio Francioli, and that at another stage Panozzo had tried to do a drug deal with Peter Francioli the night after the shooting, and that at another stage Panozzo demonstrated a propensity to be secretive and furtive in the context of attempting to deal drugs from his parents' home. This evidence is also detrimental to Panozzo but, once more where seen in the context of his overriding defence of having been present at the scene in order to deal drugs, it would not have nearly the same effect that it might in other circumstances. Moreover, and more importantly, as was submitted on behalf of the Crown, many of these pieces of evidence would be admissible in the case against the accused Panozzo as going to demonstrate why it was that he was present and likely to have committed the offence. That may not be so of the last, but the last is to do only with what appears from the evidence to be fairly low-scale drug dealings and, as I say, taken in the context of a defence which is based upon that being Panozzo's stock in trade, I doubt it would do much if anything to affect the jury's perception of the case.

Reliance was then placed upon evidence given[15] that Panozzo had obtained tranquillisers from a man called Mr Green; that he had consumed tranquillisers with alcohol[16]; that he had "punched on", meaning thereby that he had engaged in some sort of acts of low-level violence with the woman Wilson[17]; that he had been convicted of the offence of "grand theft auto" during a trip to the United States[18]; that he had threatened a man on 19 May who was associated with the woman of whom he was fond[19]; and that he had used cocaine[20]. This evidence too is to some extent detrimental to Panozzo, but it is evidence of offences of a pretty low level when taken in context. Such are unlikely to excite the jury or dispose it in any relevant way against him. In short the relatively low level acts of violence and impropriety upon which reliance is placed stand, in my view, in stark contrast to what Crockett J described in Waghorn as grave allegations of the possession by the accused of the worst possible bad character.

I turn to Mr Lewis's third submission, which was that it would be extremely difficult for the jury to disentangle from the evidence admissible against Panozzo the evidence which was inadmissible against him simply because the case against Iaria is far stronger than that against Panozzo. In support of that submission, Mr Lewis referred to evidence against Iaria in the form of gunshot residue on his clothing; that the farm at which the killing is alleged to have occurred was owned by Iaria's uncle; that Iaria had access not only to firearms generally but also to a firearm kept at the farm in question; that Iaria had given information to the police shortly after the offence is alleged to have occurred (which led to the recovery of evidence at the nearby dam); and that Iaria was shortly after the offence seen to be upset and disturbed.

The submission that the case against Iaria is considerably stronger than that against Panozzo invites consideration at a number of levels. At the first and lowest level it is to be observed that the majority of the factors said to make the case stronger against Iaria rest in his out-of-court statements and, as I have said already, I think one can proceed on the basis that the jury will act in accordance with directions given to them not to treat those statements as evidence against Panozzo.

At the second level, it may be observed that while the case against Iaria is stronger than against Panozzo, if only because of the depth of the admissions made by Iaria to police before the trial, the disparity in the strength of cases is nothing like that in Waghorn (where one accused admitted he was at the scene at the time of the offence and apart from what he said, the only evidence that the other accused was present was the evidence of a suspect witness). In this case Panozzo has admitted he was at the scene albeit standing off at some distance from where the action is alleged to have occurred. In my view, that constitutes a far stronger basis from which the Crown might seek to build a case against Panozzo, without any dependence upon evidence in admissible form, than was the case in Waghorn or in Demirok.

At the third level, the submission appears to me somewhat to misconceive the effect of the decision in Waghorn, by construing it as meaning that where there is a marked disparity in strength of case as between an accused and co-accused, the potential for the production of evidence which is inadmissible against one co-accused will ordinarily warrant an order for separate trials. Properly understood, the point which appears to me to come out of Waghorn is simply that where there is evidence which is admissible against one co-accused and inadmissible against the other, and the jury would find it difficult to exclude that evidence from consideration against the other accused, and it would be likely to strengthen the credibility of a critical witness against that other accused, and thereby turn what is a weak case against him into a strong one; it is likely to be seen that the co-accused has been so much deprived of a fair trial as to constitute a miscarriage of justice.

As I see it at the moment, that is not this case. Without expressing any firm views upon the matter, I do not regard the case against Panozzo as a weak one. After all, he has admitted that he was there, albeit standing off at some distance. His defence is simply that he did not know or suspect that there was going to be a shooting when he went there. The Crown's case against him is not dependent upon a critical identification witness, as in Waghorn or Gibb, whose credibility is likely to be enhanced in the eyes of the jury by evidence admissible against Iaria which is not admissible against Panozzo. The Crown's case, as it appears to me, is dependent upon the allegation that Panozzo had good reason to join with Iaria to do harm to the victim.

It is true that Iaria's out-of-court statement concerning the red jacket may provide some support for Polibio's evidence that the man chasing had a red jacket, and also for his aural identification that the voice that he heard was, at least as to 50 per cent certainty, Richie's voice, but the connection between the out-of-court statement that Panozzo was wearing a red jacket on the day of the night in question and the evidence of Polibio Francioli that he saw a man with the red jacket doing the chasing is far more tenuous than the direct connection in Gibb or Demirok or Waghorn between admissible eye witness testimony of a suspect witness and inadmissible out-of-court statements of a co-accused.

In my opinion, that very tenuousness will make it far easier for the jury to comprehend and abide directions to exclude from consideration of the case against Panozzo evidence which might be admissible against Iaria but which is not admissible against Panozzo.

Finally, I should say that there was in Mr Lewis's comprehensive submissions a suggestion that there may be quite apart from cases like Gibb and Demirok, a broader principle that whenever evidence against one co-accused is considerably stronger than against the other, it should follow, or at least be likely to follow, that an order will be made for separate trials.

The proposition appears to be based upon what was said by the High Court in The Queen v Darby[21] concerning observations made by the Supreme Court of Canada in Guimond v The Queen[22] and also upon some observations of Hunt J of the New South Wales Supreme Court in R v Farrell & Cotton[23] adopting what had been said earlier by the New South Wales Court of Criminal Appeal in R v Gulder[24]. Rightly, as Mr Lewis pointed out, in this state the question is for the time being governed by what was said by the Court of Criminal Appeal in R v Torney[25]. That is to say that the High Court's observations as to the desirability, if not necessity, to order separate trials wherever the case against one co-accused is far stronger than against another, should be taken as confined to conspiracy cases. But I add, with respect, that as a matter of principle it seems to me that Torney is clearly right. The observations in Darby were expressly predicated upon the basis of the great difficulty that is involved in a conspiracy case, as opposed to others, that a judge must direct a jury not only that they must consider the case against each co-accused separately, but also that they must convict them both or acquit them both. Plainly, no such difficulty arises in a case of this kind.

In the result, and even after taking into account the evidence which was adduced on the last occasion, and the possibility that something similar may occur the next time round, I do not consider that it is impracticable or likely to be ineffective to give appropriate directions to the jury about the use which they may make of evidence which is admissible against Iaria but inadmissible against Panozzo; or that there is any realistic chance that they would not follow those directions consistently with their oath to judge the facts according only to the admissible evidence. That is not to say, of course, that the door is shut. Plainly, a further application for separate trials may be made at any time during the trial depending upon the evidence which may by then have been adduced and I shall deal with it then on the basis of whatever has occurred. For the time being I am satisfied that the accused Panozzo may be afforded a fair trial without an order for separate trials and thus the application for separate trials is refused.

[5] [2000] SASC 454 at para. 91, reviewed on appeal on other grounds, at 78 ALJR 64; [2003] HCA 64

At a glance

Court

Decision date

Before

Source

Judgment (46 paragraphs)

Parties

Cases Cited (2)