R v Kepa & Webster

1 Jogan-Mohi Kepa and Trae Wiremu Webster are charged with the manslaughter of Adoor Agang at Melbourne on 11 March 2023. Their joint trial is listed to commence on 17 March 2025.

2 Ms Price, who appears for Mr Kepa, has applied for an order that her client be tried separately from Mr Webster.[1] She submits that, if there is a joint trial, the fair trial of Mr Kepa will be prejudiced[2] by evidence that is inadmissible in his trial but which is admissible in Mr Webster's trial, and that that prejudice cannot be cured by judicial direction. Mr Bourke KC, who appears for the Crown, opposes that application. He submits that the asserted prejudice is capable of being cured by conventional judicial directions.

3 For reasons that follow, while it is a relatively close-run thing, I am persuaded that Mr Kepa's application for a separate trial must be granted.[3]

4 The evidence that the Crown propose to lead at a joint trial may be summarised in this way, commencing with the discovery of Mr Agang in a parlous state.

5 At about 10:20 a.m. on Saturday 11 March 2023, a manager of the Canvas Apartment Hotel at 560 Flinders Street in Melbourne, found Mr Agang, aged 22, lying unconscious in apartment 2802 of the hotel. The manager rang triple‑zero and assisted Mr Agang by giving CPR.

6 Police and ambulance officers arrived and took over CPR. However, at 11:24 a.m., while being treated, Mr Agang passed away. The officers noticed swelling to Mr Agang's right temple but could not see any other injuries.

7 The next day, 12 March 2023, an autopsy ascertained that the cause of Mr Agang's death was "blunt force trauma to the head and neck on a background of dimethylpentylone and ethanol use". The pattern of bilateral blunt force trauma is said to be consistent with an assault. There was also focal left neck bruising, as well as conjunctival petechial haemorrhages raising the possibility of neck compression.

8 The Crown case is that the death of Mr Agang came about in the following circumstances.

9 On Friday 10 March 2023, Jeremy Jong rented apartment 2802 at the hotel as a place to host his birthday party. A large group of guests (perhaps as many as 50) attended the party throughout the night. Among them were Mr Jong's brother Kenny Jong, Mr Agang, Mr Kepa (aged 21), Mr Webster (aged 23), Dez Te-Rito, Stefan Stoev and Lat Hipau Yu.

10 During the evening, Mr Stoev met Mr Webster, who had a "massive black eye". Mr Webster told him that someone had hit him that night. He was also wearing a bandana around his fist and said that he had received a cut to his hand at some point.

11 After being at the party for some time, Mr Stoev assisted Mr Agang to get into bed in the upstairs bedroom because he was "really drunk". About 20 minutes later, Mr Stoev heard banging coming from the bedroom, and Mr Webster asked him to come and check on Mr Agang. Mr Stoev saw that Mr Agang had punched some holes in the plaster walls. Mr Yu saw the same thing.

12 Mr Stoev also saw Mr Webster punch Mr Agang to the face and knock him out. Mr Stoev grabbed Mr Webster, walked him out of the bedroom and tried to calm him down.

13 After a few minutes, Mr Stoev heard Mr Agang hitting the walls again. At this time, Mr Stoev saw two so-called "Islanders" - Mr Webster and Mr Kepa - go into the bedroom and start to have a scuffle with Mr Agang. During the scuffle, Mr Stoev copped an elbow to the face, and left the bedroom.

14 At this time, Mr Stoev saw three Islanders (namely, Mr Webster, Mr Kepa and Mr Te‑Rito) take Mr Agang out of the apartment. CCTV shows Mr Agang bleeding to his face at this stage.

15 According to Mr Stoev, about 30 minutes later, the three Islanders returned and "pretty much" carried Mr Agang back up the stairs.

16 One of the three Islanders hit Mr Agang, and then the other two joined in. This lasted about 20 seconds. At the end of the assault, Mr Kepa picked up a chair and threatened to hit Mr Agang to the head with it, but Mr Stoev and Jerry Jong stopped this occurring by taking the chair off him.

17 Mr Stoev then left the party. He last saw Mr Agang on the floor outside the upstairs bedroom, about three to four feet from the door. He was unconscious.

18 Mr Yu recalls seeing three Islanders approach Mr Agang, with one of them hitting him to the face with closed fists. The assault ceased for a while and then started again. Overall, the assault took place over 30 to 60 minutes. He saw Mr Agang punched about five or six times. The primary assailant was Mr Webster.

19 Mr Yu said he also saw Mr Kepa pick up a small chair or a stool and hit Mr Agang with it, which caused him to fall to the ground. At that point, Mr Yu left the party.

20 Crime scene police found Mr Kepa's fingerprints on the walls of the upstairs bedroom of the apartment.

21 They also found Mr Webster's fingerprints on the door of the upstairs bedroom, on a handle and on the shower screen in the bedroom's ensuite, and also on the silver staircase banister.

Remarks by Mr Webster to Covert Operative 363

22 About three months later, on 14 June 2023, police arrested Mr Webster. While in the cells at the Melbourne West Police Complex, Mr Webster said the following, among other things, to an undercover operative ("CO-363"):

a) It happened at the Aurora Hotel in Flinders Street in March 2023. It was a birthday party at which he was present with many other people. The venue had two levels.

b) At some point, there was a male with dark complexion who started to damage the room by putting holes in the walls. The partygoers didn't like his behaviour, so they started to assault him. The victim was bashed to death and died from internal bleeding. No weapons were used.

c) He (Mr Webster) did not assault the victim and was not even in the room when the victim was assaulted to death. Another male who is currently in custody (in the same lockup) - meaning Mr Kepa - was the main offender.

23 As may be apparent from the last point, Mr Kepa was also arrested on 14 June 2023, and he too was placed in the cells at the same police station. While in the cells, Mr Kepa said the following, among other things, to a different undercover operative ("CO-377"):

a) The incident happened three months ago at a penthouse in the city at his friend's birthday party (whose name was Jeremey of Jerome). There was a mixture of ethnicities at the party.

b) Detectives told him the victim was named S-Dot. Mr Kepa said he knew S‑Dot from a previous meeting in 2017.

c) Mr Kepa denied any involvement in the death of Mr Agang.

24 CCTV footage from cameras in the hotel show various movements of Mr Webster, Mr Kepa, Mr Agang, Mr Te‑Rito and others during the night in question. It is unnecessary to detail that footage for present purposes. Suffice it to say that the footage is summarised in the Crown opening.[4]

25 As for the way in which the Crown puts its case, it is alleged that, while at the party in the apartment in the early hours of Saturday 11 March 2023, the two accused and others assaulted Mr Agang on several occasions before leaving him unconscious and alone in the apartment, where he ultimately died. The Crown case is put on the basis of both primary liability and complicity pursuant to s 323(1)(a) and (c) of the Crimes Act 1958 (Vic).

26 In Mr Kepa's defence response, the following things are said.

27 First, it is said that any assaults or acts that caused Mr Agang's death were committed by others, and that Mr Kepa was not complicit in those acts.

28 Second, the following matters are listed as in dispute:

a) what act or acts caused Mr Agang's death, noting that the Crown alleges several distinct assaults;

b) that Mr Kepa committed any assault upon Mr Agang;

c) that Mr Kepa was complicit in an unlawful and dangerous act committed by another; and

d) to the extent that the Crown might prove that another person committed an unlawful act, that that act was objectively dangerous.

29 Third, it is also said that the details of what occurred at the party, as described by Crown witnesses Mr Stoev, Mr Yu, Jeremy Jong and Kenny Jong, are very much in dispute, noting that those four accounts are contradictory and self-serving.[5]

30 Fourthly, it is also said that the Crown case that there were three distinct assaults (as described by Mr Stoev) or one continuous assault (as perhaps described by Mr Yu) is in issue.

31 Finally, it is said that it is in issue who committed any assault upon Mr Agang, what occurred in any such assault, and who was participating or present.

32 In Mr Webster's defence response, among other things, it is said that he does not admit:

a) that he was involved in a fight that night, causing him to sustain a black eye, and/or that he told Mr Stoev this;

b) that he was asked by Mr Stoev to go to the upstairs bedroom, that he went with him there, or that he was walked out of that room by Mr Stoev;

d) that he participated in the assaults as described in the Crown opening;

e) that he intentionally assisted, encouraged or directed any assaults on Mr Agang; or

f) that he entered into any agreement, arrangement or understanding with Mr Kepa to assault Mr Agang.

33 Turning to counsel's submissions on the application, Ms Price submitted that Mr Webster's exculpation of himself to the undercover operative and his nomination of Mr Kepa as being responsible for the assaults on Mr Agang, while inadmissible in Mr Kepa's trial, may well be seen by a jury as providing support for the evidence of Mr Stoev and Mr Yu in so far as they implicate Mr Kepa as being responsible for assaulting Mr Agang.

34 In those circumstances, in her submission, notwithstanding careful directions designed to guard against use of inadmissible evidence in Mr Kepa's case, it is unrealistic to expect that a jury, when considering the case against Mr Kepa, will be able to put aside any influence Mr Webster's account may legitimately have in making, for the purposes of Mr Webster's case, their assessment of the evidence of Mr Stoev and/or Mr Yu that implicates Mr Kepa.

35 Accordingly, submitted Ms Price, there must be a separate trial.

36 Mr Bourke submitted, correctly, that the starting point is that, in a case like the present, there should be a joint trial. There are good reasons in principle and of policy that support that view. They include the sparing use of scarce Court and related resources, shielding witnesses from the inconvenience and possible trauma of giving evidence an additional time, reducing the risk of inconsistent verdicts, and so on.

37 Mr Bourke also submitted that, in a joint trial in this particular matter, a jury would understand and apply conventional directions concerning which evidence is admissible or inadmissible in considering each accused's separate trial. He submitted that the nature of Mr Webster's implication of Mr Kepa was not the sort of evidence that corroborated the detail of Mr Stoev's or Mr Yu's evidence of Mr Kepa's alleged involvement. Rather, it was just a bald assertion that would be relatively easy for a jury to put aside when considering those witnesses for the purposes of considering the Crown case against Mr Kepa.

38 Moreover, he submitted that it would be relatively simple for a jury to understand why, as a matter of fairness, they must put Mr Webster's account aside when considering the case against Mr Kepa, and vice versa.

39 Both counsel referred to leading authorities on the principles applicable to consideration of whether an accused should, or should not, be tried separately from his or her co-accused.[6] It is sufficient to extract passages from only two of those authorities in these reasons.

40 First, in R v Iaria ("Iaria"), Nettle J, sitting as a trial judge, said this:[7]

... 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.

41 Second, in Young & Ors v The Queen ("Young"), after setting out passages from the leading authorities on the topic,[8] including Nettle J's remarks in Iaria, the Court of Appeal said this:[9]

The above authorities demonstrate that the general rule in cases such as the present is that the accused should be tried jointly. It may be appropriate to depart from that rule if evidence admissible in respect of the trial of one accused but inadmissible against the other is unfairly prejudicial against the other in at least one of two senses. First, it may be that such evidence may create unacceptable collateral prejudice in the sense of establishing bad character or other prejudicial connotations that cannot be cured by judicial direction. On the other hand, it may be unfair in the sense that there is a real possibility that evidence which is powerful in the case in which it is admissible impermissibly bolsters what is otherwise a relatively weak case against another accused in which the same evidence is inadmissible and that this cannot be cured by judicial direction.

42 The Court then went on to consider whether the judge's directions were adequate to prevent the risk of unfair prejudice in the instant case, which their Honours answered in the affirmative.[10]

43 Mr Bourke urged me to compare the inadmissible evidence, issues and directions in Young and reach the same conclusion in this case as to the efficacy of directions in curing the potential prejudice to Mr Kepa's trial flowing from Mr Webster's account to the undercover operative.

44 In my view, Young was quite a different case from the present, in several respects. The charge in issue was kidnapping. The complainant gave evidence that he was indeed kidnapped. The admissible evidence against the four accused which generally corroborated the evidence of the complainant was strong. The inadmissible evidence from the out-of-court statements of two accused did not directly implicate any other accused. Rather, that evidence was no more than circumstantial evidence that might be capable of bolstering the circumstantial case against the accused who made the utterances that what the complainant was subjected to was indeed a kidnapping.

45 In contrast, in the present case, Mr Webster's utterance directly implicates Mr Kepa. Further, while Mr Stoev and Mr Yu provide each other with some mutual corroboration that Mr Kepa was, to a greater or lesser degree, involved in the assaults, and especially the latter phase of the assaults, there are significant inconsistencies between the accounts of those two witnesses as to that latter phase (for example, as to whether Mr Agang was struck with a chair by Mr Kepa, or whether he was stopped from doing so).

46 Further, I regard the case of manslaughter in general against Mr Kepa as relatively weak. On the Crown case, at least three persons are implicated in one or more assaults on Mr Agang - namely, Mr Webster, Mr Kepa and the absent Mr Te‑Rito - but, on that same case, Mr Webster seems to be the one allegedly mostly involved. Moreover, the Crown case does not identify any particular act or acts as the cause of death.

47 In those circumstances, applying and adapting Nettle J's and the Court of Appeal's turns of phrase in Iaria and Young to the present case, I am satisfied:

a) that there is evidence - namely, Mr Webster's account to the covert operative - which is admissible in his case (both for and against him) but is inadmissible against Mr Kepa; and

b) that the jury in a joint trial would find it difficult to exclude that account when considering the evidence against Mr Kepa by Mr Stoev and Mr Yu; and

c) that Mr Webster's account would be likely to strengthen the credibility of those two critical witnesses vis-à-vis Mr Kepa's alleged involvement in the assaults; and

d) that, thereby, this may turn, and illegitimately so, what is a weak case of manslaughter against Mr Kepa into a strong one - or at least a significantly stronger one; and

e) that this difficulty cannot be cured by legal direction.

48 Mr Bourke was right to caution against too readily concluding either that a jury might find the directions too difficult to understand or apply, or that they might ignore those directions.

49 However, while I accept that the directions required to make the points necessary to achieve a fair trial might seem straightforward enough in themselves, I think the far greater difficulty lies in expecting a jury of twelve ordinary members of the public to engage in the mental gymnastics required by those directions, and, even if they were to do so satisfactorily, to accept and act on the potential consequences of doing so.

50 While those mental gymnastics might not involve such high degrees of difficulty as to be the juristic equivalent of putting Nadia Comaneci to shame, they would come dangerously close to doing so - and much too close for my liking. For those directions would require the jury not only to be capable of putting aside completely whatever conclusions of fact they might make about the Crown case against Mr Webster on crucial issues, including their conclusions about what to accept (or not) of the evidence of Mr Stoev and Mr Yu, and how those conclusions might be affected by Mr Webster's account, but also to be capable of starting completely afresh again, with wholly open minds about the Crown case against Mr Kepa, including again as to what to accept (or not) of the evidence of Mr Stoev and Mr Yu, and how those conclusions might be affected by Mr Kepa's account to the undercover operative.

51 In a case like the present, properly applied, that process could lead to two quite different - and seemingly contradictory - sets of conclusions on the criminal standard of proof. For example, it might mean that, in Mr Webster's case, the jury are satisfied that Mr Kepa was indeed involved in the assaults, whereas in Mr Kepa's case, it may mean that they are not satisfied that he was involved in the assaults. The temptation to resist coming to such contradictory conclusions would be a powerful one, one that I am persuaded is too much to expect of a jury.

52 And yet such contradictory conclusions, if capable of being reached by the jury, would not give rise to verdicts that were inconsistent in any meaningful sense. Rather, on this hypothesis, the verdicts would reflect the true limitations or strengths of the Crown case properly assessed vis-à-vis each accused purely separately on the evidence that applies to the accused in question.

53 In my judgment, however, for the reasons I have given, a joint trial in this case would create too great a risk of a miscarriage of justice precisely because of the risk that the one jury may not reasonably be capable of reaching the apparently contradictory conclusions that, depending upon their unpolluted views of the evidence as between separate cases, may in law necessitate verdicts that at which they would baulk erroneously.

54 Accordingly, I grant Mr Kepa's application and order that he be tried separately from Mr Webster.

55 I shall hear the Crown on which trial is to proceed first.[11]

[1] See s 193(2) of the Criminal Procedure Act 2009 (Vic).

[2] See s 193(2)(b) of the Criminal Procedure Act 2009 (Vic).

[3] These reasons were provided to the parties at the time of the ruling but were not published to the world at large because of the extant jury trials. Now that the trials have concluded, these reasons may be published to all.

[4] See Summary of Prosecution Opening (29 July 2024) at [33]-[40]).

[5] As I understand it, neither Jeremy Jong nor Kenny Jong implicates either accused. Essentially, they claim not to remember much of the evening, particularly given the amount of drugs or alcohol they consumed on that occasion.

[6] Those cases included the following: R v Demirok [1976] VicRp 19; [1976] VR 244 at 254-256; R v Gibb & McKenzie [1983] VicRp 78; [1983] 2 VR 155; R v Jones & Waghorn (1991) 55 A Crim R 159 at 164; Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1 at 13; R v Alexander & McKenzie [2002] VSCA 183; (2002) 6 VR 53 at 67[31]; R v Iaria [2004] VSC 110 at [22]; R v Debs & Roberts [2005] VSCA 66 at [202]- [211]; R v Ferguson [2009] VSCA 198; (2009) 24 VR 531 at 587[310]; Samules-Orunmwense v The Queen [2015] VSCA 152 at [22]; and Young & Ors v The Queen [2015] VSCA 265 at [29]- [38].

[7] R v Iaria [2004] VSC 110 at [22].

[8] Young & Ors v The Queen [2015] VSCA 265 at [29]- [36].

[9] Young & Ors v The Queen [2015] VSCA 265 at [37] (my emphasis).

[10] Young & Ors v The Queen [2015] VSCA 265 at [38]- [62].

[11] See s 193(5) of the Criminal Procedure Act 2009 (Vic).