Ali Samandi is to stand his trial in this Court in respect of charges set out in an indictment which I have a copy of, but which the Crown had proposed to file in calling the accused to trial.
On that current indictment, there are 15 counts. Four of those counts, as I understand it, are counts relating to allegations of sexual intercourse without the consent of his former partner knowing she was not consenting. For the purpose of this judgment, I will give her the letters XX. I direct there be no publication of any material that would lead to her identification, save for the purposes of this judgment.
Those counts are counts 10, 11, 13 and 15. Those four counts relate to events, respectively, between 11 February 2017 and 22 February 2017. In addition, in respect of what is proposed to be prosecuted by the Crown, there is in count 1 an allegation of assault of the complainant on 17 December 2015; another allegation in count 2 of assault between 1 February 2016 and 29 February 2016, an allegation of assault occasion actual bodily harm allegedly committed between 1 February 2016 and 31 March 2016, in count 4 an allegation of assault occasion actual bodily harm on 2 May 2016, a count highly relevant as the arguments revealed a consideration of the application made on behalf of the accused. Count 5, the count sought in the motion filed on behalf of the accused to be separated from the indictment, alleges against the accused that he on 4 May 2016 at Parramatta in the State of New South Wales did make an accusation namely that New South Wales Police officers had assaulted him and XX with intent that the New South Wales Police officers be the subject of an investigation he Ali Samandi knowing them to be innocent of the alleged offence. I will come back, as I said, to the connection between what is sought to be proven in relation to count 5 to count 4, shortly.
Count 6 is a separate allegation of assault occasion actual bodily harm alleged to have occurred between 1 September 2016 and 30 September 2017. Count 7 is another allegation of assault occasion actual bodily harm in December 2016. Count 8 is an offence of common assault in the same month of 2016. Count 9 is an allegation of assault occasion actual bodily harm in the same month of 2016. Count 11 is an allegation of assault occasion actual bodily harm on the same date as count 10 alleging sexual intercourse without consent. Count 14 is an allegation of intentionally damaging an Apple iPhone, the property of the complainant, on 15 February 2017.
The Crown came well prepared today. I compliment the Crown on his industry and that of his instructing solicitor. Because the issue that arises from the motion that was filed today apparently has not been raised in front of any judge before whom this matter has come, notwithstanding the fact that the matter was listed to start last Monday week. I mentioned the matter last Friday in the middle of doing a trial and many sentence matters, to indicate to the parties I was prepared to take the matter but would not be able to start the matter until Monday 15 October 2018.
I specifically asked the parties if there were any pre trial issues that needed to be resolved. I was told there may be some issues of admissibility as the evidence unfolded, but I was told there were no pre trial issues. Yesterday the matter came before me in the fond hope that we could empanel the jury, I was summing up to a jury in relation to that other trial, and my summing up in that trial did not finish till approximately 20 minutes to 3 or quarter to 3. At that point the learned Crown Prosecutor was available. The accused was brought up to Court but, unfortunately, and it is certainly no fault of Mr Brasch who appears for the accused, Mr Brasch was otherwise engaged taking a verdict in another trial in which he has been involved. In fact, whilst waiting for this trial to commence I appreciated Mr Brasch has had commitments in relation to that other matter.
Ultimately, by the time Mr Brasch had arrived at Court which was just after 20 past 3, it was quite clear given the size of the indictment, that the time that it would take to empanel a jury for a trial expected to run for four to five weeks that there was no hope of being able to do that before the close of business. In any event, in anticipation of Mr Brasch not being here in a timely fashion I had indicated that the panel was awaiting called to this Court be dismissed for the day.
When I came on the Bench this morning, the motion that I have referred to was presented. I should say, against myself perhaps, that in the absence of Mr Brasch and then in the presence of Mr Brasch, I had asked the Crown, in effect, what count 5 was doing in the indictment, bearing in mind, if I can use a colloquialism, that the character of the charge stands out like a sore thumb by comparison to the other allegations that are set out in the indictment involving acts of alleged violent both sexual and physical, against the complainant.
Overnight I understand, there was some discussion between the parties. Mr Brasch had intimated in light of the fact that I had raised the matter with the Crown, that he had been thinking about the matter for some period of time, albeit briefly. I suggested that he discuss the matter with the learned Crown Prosecutor. I am assuming they did discuss the matter but the Crown was insistent that count 5 should remain in the indictment, and a measure of that insistence is, in anticipation of a motion that had not been filed, the Crown gathered together some authorities, prepared very helpful written submissions, and was, as I understand it, fully prepared to meet the application on behalf of the accused.
In the material presented to the Court I have a very detailed Crown case statement which sets out in 25 pages details as I would understand it from the Crown perspective in relation to the various counts in the indictment, including count 5. I should point out, as it is relevant to an assessment of whether I should separate count 5, there is a summary of evidence of other allegations of physical violence by the accused and sexual violence by him against the complainant, occurring outside the State of New South Wales. Primarily, as I understand it, in Queensland.
The various matters identified in the indictment, that is offences committed within New South Wales, are alleged to have been committed in the Western Sydney area at various places such as Parramatta, North Parramatta, Campsie, Belmore, Castle Hill, and the like.
The Crown would wish to, and I understand there is no objection to it and it seems to me perfectly proper for the Crown to do so, lead evidence of other alleged offences by the accused as providing a context for the matters that are amenable to justice here in New South Wales. In addition to the Crown case statement I have a very lengthy statement from the complainant, I have not read, obviously, the entirety of that statement, which runs in the version that I have here to over 500 paragraphs. But I have read the paragraphs that the Crown identified as being particularly pertinent to counts 4 and 5, that is paras 120 to 141 of her statement. I feel that the matters set out in the Crown case statement, fairly but in summary form, represent matters thought to arise from the statement of the complainant I have other material that touches upon the circumstances of the arrest of the accused on 2 May following upon the alleged events giving rise to count 4, and relating to the subject matter of the accused's discussions with an Inspector of Police, which give rise in part along with other matters, to the allegation in count 5. That is that the accused had falsely to use my word alleged that at the time of his arrest on 2 May the accused had been assaulted by police and by taking the matter to the Inspector, sought to have an investigation in circumstances where the Crown alleges he knew those persons to be innocent of the charges or allegations that he made.
I do not need to particularise the detail of the annexures to the statement of the complainant beyond pointing out there are photographs that are part of the allegation in count 5 and clearly relevant to the allegation in respect of count 4. As well there are other annexures in the Crown bundle.
The other material I have, apart from the Crown's helpful written submissions, is the Tendency Notice that is dated 4 October 2018. The Crown said there were several drafts that existed before that, but as I understand it this is the only "Tendency Notice" based on what the Crown said. I ask aloud, why are not these Tendency Notices being prepared months in advance of the trial, bearing in mind the trial has probably been listed for six months. But, be that as it may, no complaint is made by Mr Brasch at this stage in relation to lack of notice.
The Tendency Notice is of relevance to the issues I have to resolve in this material respect, the Crown would seek to establish that the accused had a tendency to act in a particular way, firstly, to act violently towards the complainant, including by way of assaulting her. Secondly, to act upon his, "sexual attraction to the complainant," by engaging acts of sexual intercourse with the complainant without her consent, in circumstances where he knows she is not consenting.
The Crown Tendency Notice has attached a schedule of evidence sought to be relied upon to establish the relevant tendencies. It would seem to me, if I be so bold to say so, that it may turn out, and we have not workshopped this, that the first tendency identified is a relevant tendency to establishing the accused's guilt in relation to counts, including count 4, other than counts 10, 12, 13, and 15; and the second tendency is a relevant tendency to the proof of guilt of the accused in relation to the four counts of alleged sexual intercourse without consent. None of those tendencies identified in the Tendency Notice are relevant to establishing that the accused had made a false allegation against the police, that the police officers had assaulted him and the complainant, with an intent that they be subject to an investigation knowing them to be innocent of the alleged offence.
The Crown drew my attention to what he described as contained within para 7, and I will read that onto the record. I do so not out of disrespect to the Crown's submission. But, ultimately, it does not take the matter as advanced by the Crown, any further other than to underline the fact that, as a consequence of the order that I have made, if there be a trial in relation to count 5 standing alone, there will be a body of evidence required to be called beyond the allegation in count 4, amongst other reasons, to put into context the allegation contained in count 4, that is the allegation of assault occasion actual bodily harm, and presumably to pursue the issue of, "tendency" to act in a violent way towards the complainant.
With regard to para 7 of the Notice, it should be read in the context of para 6:
"In the view of the lawyer with the current conduct of the matter, the tendency evidence sought to be adduced bears upon the facts in issue in this prosecution including the following facts in issue, (i) whether the accused had assaulted the complainant as alleged in the indictment; (ii) whether the accused did have sexual intercourse without the consent of the complainant, namely the complainant was not consenting as alleged in the indictment."
In relation to "facts in issue" to summarise it, the first part of the particulars dealing with (i) above as I have just quoted the Notice states, "In relation to all allegations of assault, counts 1, 2, 3, 4, 6, 7, 8, 9 and 11, the Crown relies upon the evidence in relation to each such count with respect to other individual counts."
In respect of the facts that are alleged, particularly in relation to count 4 and count 5 noting the potential relevance of other alleged actions of the accused in proof of guilt of the accused in respect of count 4, the relevant paragraphs in the Crown statement appear at paras 27 to 45. I don't want to do a disservice to the detail of the Crown case statement, but rather than read it onto the record or skim over it, suggesting I have not paid any attention to what is it in the Crown case statement, I will summarise what that material refers to.
Count 4 is concerned with an assault occasioning actual bodily harm. Police came to the premises occupied by the accused and the complainant afterwards. The accused asked the complainant to give a false account as to her presentation, her distress. The Crown case is she was in fact injured by the accused's actions, thus giving rise to the assault occasioning actual bodily harm. When the police arrived, the accused said abusive words to the police, or offensive words, and, as would appear on the basis of the Crown case, violently resisted arrest. He then subsequently inflicted upon himself an injury with a view, on the Crown case, in relation to count 5, to complaining to senior police that in being arrested or held by the police the injuries that were self inflicted were in fact inflicted by the police.
He then made a complaint to an Inspector of Police that he and his wife were in fact injured by the police. He then later photographed injuries that appeared on his wife's body, which were hidden from the police when they arrived because she was wearing full length clothing, which in fact, on the Crown case, he had inflicted upon her, and also apparently photographed the injuries to himself.
That is a potted summary. I may have done disservice to some of the detail. But ultimately the relationship of count 5 to count 4, and I have already indicated to the parties it is clear to me that some of the evidence involved in count 5 must be relevant to count 4, is concerned with, firstly, if it be led in evidence, explaining the conduct of the complainant when the police arrived on 2 May, and her giving an account which is inconsistent with the account which the Crown will rely upon at trial. It is also relevant to establishing the fact that she was injured by the accused, although police did not see injuries. Also explaining the circumstances in which those injuries, later photographed by the accused, came to pass other than had been the subject of complaint to the Inspector at the time that the accused on 4 May spoke to a senior officer at a police station.
I will come back to what has arisen from the submissions and the detail of the evidence, as I understand it, that is relevant to counts 4 and 5. But as I said a moment ago, it seems to me that at least some of the evidence in relation to count 5 prima facie has relevance to count 4, as I have said. It is also the case in my view, and this is a matter that I do not propose to resolve at this point but will need to be resolved later in the trial, that what arises out of the attendance of the police on 2 May and the subsequent approach of the accused to the police in relation to their attendance on 4 May, is not relevant to proof of guilt of the accused in relation to count 4. Either by reference to any tendency reasoning, which is not pleaded in the Tendency Notice in any event, or any other basis.
If I may identify that evidence in summary. Firstly there is the issue of the relevance to proof of guilt of count 4 of the accused's conduct on the police arrival, or particular aspects of the accused's conduct, including the statements that he made of an insulting character to the police. There is the issue of the admissibility or, to put it another way, the relevance and then otherwise admissibility of the self infliction of injury. Clearly relevant to count 5 in its terms, but difficult to see its relevance to count 4, other than perhaps as some quite "contextual evidence." And also there is the issue of the falsity of the allegations the accused made to the Inspector, and their relevance to proof of guilt in relation to count 4 save in respect of such falsity that relates to the circumstances of the injury that was occasioned by the accused's wife.
[2]
LEGAL PRINCIPLES
I turn now to the relevant legal principles. As I said, with no element of sarcasm, I have been much assisted by the learned Crown's oral and written submissions. There is much obviously that I adopt from the written submissions particularly the cases upon which he relies. As I will reason later in the judgment, there are however in relation to this matter, a number of aspects of this matter that are not particularly addressed in the obiter observations of various courts dealing with applications to separate counts on the indictment in what I see in each case as entirely different circumstances.
Section 20 Criminal Procedure Act 1986 allows for the fact that an indictment to be presented by the Crown may not be amended, except by leave of the Court or the consent of the accused, in circumstances where the power under s 20 does not affect the powers of the Court under s 21.
Section 21 of the Act provides for amendment of the indictment in circumstances where there is apparent defect that can be amended "without injustice": see s 21(1) of the Act. Section 21(2) states:
"If of the opinion:
(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or
(b) that for any other reason it is desirable to direct that the accused be tried separately for any one or more offences charged in the indictment a court may order a separate trial of any count or counts in the indictment."
The Crown's particular concentration, and I do not criticise the Crown for that, was upon the terms of s 29 of the Act which states, relevantly:
"A court may hear and determine together proceedings related to two or more offences alleged to have been committed by the same accused person in any one of the following circumstances:
a) the accused person and the prosecutor consent;
(b) the offences arise out of the same set of circumstances;
(c) the offences form or a part of a series of offences of the same or similar character."
Section 29(3) provides:
"Proceedings related to two or more offences or two or more accused persons, may not be heard together if the Court is of the opinion that the matters ought to be heard and determined separately in the interests of justice."
These provisions have received obviously a great deal of attention in New South Wales, and principles concerning the separation of offenders and/or counts have received attention obviously in New South Wales and elsewhere.
The Crown's argument, as I understood it by reference to its written submissions, was that the events giving rise to count 5 and count 4 "arose out of the same set of circumstances," citing s 29(1)(b) of the Act. Alternatively, it is submitted, that it arose out of a series of offences "of the same or a similar character". The Crown's expressed it in its written submission as "same set of circumstances and similar character", but that is not what the Act says. Be that as it may, having regard to my analysis of, firstly, what is relevant to count 4 and what is relevant to count 5, I see the matter arising under s 29 to be considered here as whether two or more counts ought be joined in relation to offences that form or are part of a series of offences "of the same or a similar character". I do not believe one can conclude, having regard to the character of the charges brought in relation to counts 4 and 5, that the two offences arise out of "the same circumstances". Because, amongst other things, I formed a preliminary view that there is evidence relevant to count 5 that I will say at this stage may not be relevant, or is obviously not relevant to count 4. They do not arise out of the "same" circumstances.
Be that as it may, I accept the general proposition of the learned Crown Prosecutor that s 29 would, in one way or another, permit the joinder of the counts.
It is worthy to refer to some of the cases cited by the Crown. First of all there is the famous decision of Assim [1966] 2 QB 249 and the judgment of Sacks LJ, particularly where his Honour said:
"Where, however, the matters which constitute the individual offences of the several offenders [this being a case of joinder of offenders] are upon the available evidence, so related, whether in time or other factors that the interests of justice are best served by being tried together, then they can properly be the subcounts in the one indictment and can subject always to the discretion of the Court, be tried together."
I am prepared to accept, for the purposes of the Crown's submissions, that, as seen in a case that lawyers have been citing in my experience in Australia since the late 60s, has equal application in its essence to the joinder of counts as well as the joinder of offenders.
The Crown also refers to a more recent decision of the Court of Criminal Appeal of Ross v The Queen [2002] NSWCCA 207, particularly at [24].
I have not read the entirety of Ross and I rely upon the citing of the relevant passage from the judgment in the submissions, but I am prepared to do that. There President Allsop said in the context of dealing with two offenders were jointly charged. "A number of offences," that:
"There is a public interest in the avoidance of the risk of inconsistent verdicts, of inconveniences to witnesses, and ensuring finality is reached as expeditiously as possible by having one trial. The interests of justice in this respect are not limited to those of the accused."
His Honour cited, particularly I note, a very well known decision of the High Court of Australia on the same topic, Webb & Hay v The Queen (1994) 181 CLR 41. Those comments of the President citing the authorities to which he refers, I completely accept. It is very much at the forefront of the Crown's submission that in this matter there is a public interest in count 5 being joined with the other counts, to avoid a further trial which may involve firstly the repetition of at least some of the evidence in this trial, and perhaps additional evidence being led from the complainant, notwithstanding the fact that she had given evidence in relation to all the other counts, save for count 5, should I separate count 5 from the indictment.
I might comment upon that aspect of the matter now as part of my consideration of the matter. As I said, there is no doubt of the wisdom of his Honour's comments. But those comments have to be said firstly of the particular case that his Honour was considering. That is a case involving two accused jointly charged with the same offences, as I understand it. Clearly, save for exceptional circumstances, there would not be a separation of the accused in that event. In fact from my memory, without having the authority in front of me, I noted to the learned Crown Prosecutor of course that there are exceptions in a, "joint trial," of accused in the decision of Farrell & Cotton, a judgment either of Hunt J, and/or Wood J. It was held that a joint trial of two accused charged with murder could not occur in circumstances where the prejudice of the conduct of the case against one accused, as it affected the other accused which could not be cured by appropriate direction, warranted the separation of the two accused. In that particular matter the relevant issue was a confessional interview not admissible against one accused in which the confessor, in his own account, implicated the co accused.
In relation to what I understood to be by reference in the submissions to the provisions in s 29(1)(c), learned counsel for the Crown cited the decision of BJS v The Queen [2011] NSWCCA 239, particularly those passages of the judgment between paras [8]-[11]. I just pause for a moment to point out that BJS was a trial in which the trial judge was confronted with an indictment of 12 counts, as I understand it, relating to seven complainants. The learned trial judge, after some days of hearing, concluded that three of the counts ought be separated. One count was abandoned by the Crown leaving, on my calculation, eight counts to be prosecuted involving six complainants.
The case was one of a Priest or a Brother in holy orders at a school at Bathurst, sexually assaulting students. The case gave rise to a consideration of the relevance of evidence of tendency arising out of one count, being available in proof of guilt of the accused of other counts in the indictment. There was clearly on the basis of the way in which the Crown ran its case quite properly, a "cross fertilisation" of admissibility of the respective allegations of the complainants. For the purposes of the application before me however, the Crown properly drew my attention to those four paragraphs in Basten JA's judgment, I have had regard to the brief remarks of Hulme RS J and the far lengthier judgment of Hall J, which deals with the real issue of the appeal. That is the issue of the appropriateness, pursuant to s 5F, to appeal interlocutory judgments of judges and the wisdom of the learned trial judge's decision to admit evidence for tendency purposes and the like.
His Honour Basten JA cited the observations in R v Kray [1970] 1 QB 125 particularly at [130]-[131], the following year adopted by the House of Lords in the decision of Ludlow v Metropolitan Police Commissioner:
"Offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases."
I pause for a moment to point out in BJS evidence in relation to one count concerning one complainant was admissible in relation to other counts relating to other complainants, albeit that the relevant allegations arose out of separate incidents. In this particular matter with which I am concerned, as I have earlier pointed out to underline the matter, whilst I can see that all the evidence relevant to count 4 is relevant to count 5, not all the evidence that is relevant and admissible in relation to count 5 is relevant and admissible, in my view, in relation to count 4.
His Honour Basten JA cited what Gibbs CJ said De Jesus v The Queen [1986] HCA 65, in which the High Court referred to previous authority including the decision of Sutton, which I will quote in a moment. Charges should not be tried together if the evidence in one count is not admissible on another count. His Honour went on to say at para 11:
"The general principle that there should be separate trials unless the evidence to be called in respect to one count is admissible in respect to another was accepted without demur by the parties. Accordingly, the motion for separate trials was effectively to be determined by a ruling on the admissibility of evidence."
I accept that general principle. But I again make the comment that whilst all the evidence in relation to count 4 is to my mind relevant and admissible in relation to count 5, the reverse does not apply. In those circumstances, prima facie, that is not a prima facie basis for joinder. Notwithstanding the terms of s 29(1)(c).
One decision that I was not brought to, but I will cite it nevertheless, is a decision of Mac v The Queen [2014] NSWCCA 24. In that judgment, with the approval of Basten JA I hasten to say, the lead judgment of Hidden J discusses the issue of separate trial in that matter, determining as I understand it, that the judge was within his rights or her rights not to separate counts. The relevant discussion of the principles appears at [20]-[37]. In that judgment his Honour cites a number of authorities not otherwise cited in the material, which does not detract from what the Crown has submitted by way of principle, such as Harriman v The Queen (1989) 167 CLR 590, considered by the Court of Criminal Appeal in Quach [2002] NSWCCA 519. Particularly, he cites the judgment of Sutton to which I made earlier reference, ([1983-4] 152 CLR 528). In that judgment consistent, I hasten to say, with what flows from De Jesus Brennan J said at 542-3:
"Usually there is no risk of impermissible prejudice arising from the conduct of a single trial upon an indictment containing more than one count where the evidence relating to the accused's implication in an offence charged in one count is admissible in proof of his guilt of the offence or offences charged in the other count or counts. The admissibility of evidence relating to one count upon a trial for another count is this a question of importance. Affecting both the exercise of the discretion...and, in the event of a trial on multiple counts on the direction given to the jury relating to the way in which they may use the evidence tendered in proof of each count in the indictment."
For what it is worth, it might be remembered that Sutton v The Queen was a judgment concerned with the trial of an accused on multiple counts of sexual assault where the Crown relied upon, as I remember it, "similar fact" evidence, to establish the guilt of the accused.
[3]
THE SUBMISSIONS
The Crown's written submissions state, to put these issues in sharper focus, the following:
"In any separate trial with respect to count 5 the evidence in count 4 would prima facie be admissible to count 5 as it is the event that is the subject of count 4 that gives rise to count 5."
With that proposition, I hasten to say, I fully agree.
"… the question of fact arises as to how the complainant's injuries were caused. The Crown relies upon context/relationship and tendency evidence with respect to proving that it was the accused who caused the injuries the subject of count 4. The Crown relies upon the events the subject of the various counts other than count 5 in that regard."
I point out I have already quoted from the Tendency Notice as it relates to this point and the Crown made a point of reminding me of what's in the written submissions in his oral submissions.
"The Crown submits that the accused falsely, on the Crown case in relation to count 5 purported that the injuries caused to the complainant, the subject of count 4, were caused by the police. As such, any trial with respect to count 5 would require the Crown to call a substantial amount of evidence common to both trials."
In fact, I note now that there's reference to Mac and some aspects of Hidden J's judgment. The Crown correctly also says in relation to count 4:
"The evidence as to the accused taking the photographs of the complainant's injuries caused by the accused during the count 4 allegation but falsely claimed by the accused to being caused by the police for the purposes of the events giving rise to count 5 would prima facie be admissible to count 4."
I agree with that proposition.
Further, "The photographs feature the accused's finger(s) holding the complainant for the purposes of the photographs."
Reference is further made to the annexures to the complainant's statement that I have seen and portions of the statement drawn to my attention.
Of course, it follows from what I have said thus far, there is nothing in those submissions to address the issue of the extent to which the evidence that is relevant to count 5 is solely relevant to count 5 and not relevant to count 4. I do not need to dwell upon that matter any further.
In relation to the learned Crown's oral submissions, I believe I have done justice to them. They addressed a number of the matters that appear in the written submissions from which I have quoted I hasten to say, in terms of general principle, there is nothing to disagree with in the Crown's submissions. The facts of the matter are that in this particular matter, the general principles do not set out what I would regard as an iron clad rule that embraces the need, in this particular matter, to join count 5 with count 4.
Mr Brasch accepted in his submissions that there was an overlap but he submitted, as I have concluded, that it would be anticipated that there are parts of count 5 not relevant to count 4. But he also made a very important point in his alternative, or additional submission, that the "nature of the inquiry in relation to count 5", using his words, is very different, not only from count 4, but in relation to all the other counts in the indictment requiring proof by the Crown. It is to be remembered there are 13 more of those.
He pointed out, as the terms of the indictment make abundantly clear, that in determining whether the accused is guilty of count 5, the issue is not confined to being concerned with the issue of whether the accused caused injury to the complainant as alleged in relation to count 4, but it is concerned with the issue of whether the accused gave a false account to police, particularly to the Police Inspector at the time that he made his complaint and did so, to use my words, with an entirely "dishonest intent," that is, to intend that New South Wales Police Officers "be the subject of an investigation...knowing (them) to be innocent of the alleged offence."
That inquiry would require the jury, in the context of considering the credibility of the complainant in relation to the other counts, to make, if it found the accused guilty, a positive finding that the accused had been dishonest in a material way; not only in relation to the injuries alleged to have been suffered by the complainant, but in relation to the injuries suffered by himself.
Of course, in a case that turns upon a conflict between the Crown case and any defence case that is led, or a conflict between the Crown case and a general denial by the accused; at the very least, the credibility of the accused's denial of guilt would be a relevant matter for the jury to consider. Mr Brasch submitted to me that count 5, in its terms, is not just concerned with false allegations to police relevant to the complainant but goes beyond that. It goes to the accused's character at the time of other alleged offending.
In this particular matter, it is to be borne in mind, notwithstanding what evidence of one count may be relevant and admissible in proof of guilt of the accused in relation to other counts, for example, pursuant to tendency reasoning, that ultimately the jury would be told, as I am required to tell them, that they, the members of the jury must give "separate consideration" by regard only to the admissible evidence in relation to a particular count in determining whether the accused is guilty or not guilty of that count.
So, obviously, that may mean, of course, that in this trial the jury may, in determining whether the accused is guilty or not guilty of count 4, have to have regard to the evidence in counts 1, 2, 4, 6, 7, 8, 9 and 11 on a tendency basis. That having been said, however, it is still to be remembered that it is separate consideration of each count by reference only to the evidence that is relevant to that particular count.
As I have earlier pointed out, the matter has not been fully analysed by me, but there is evidence, as I have said on at least three occasions that I see as entirely relevant to count 5, that may not be relevant or is not relevant to count 4.
I agree with the submission put by Mr Brasch that an inquiry as it has been described into the issues relating to count 5 will involve a consideration of issues that are irrelevant to a consideration of the guilt of the accused in respect of count 4 or any other counts in the indictment. It is to be borne in mind, of course, that what is being sought is the separation of one count out of 15 counts in an indictment where the theme of the other 14 counts, if it could be said, is a consistent theme of abuse of the complainant. The essence of count 5 is in entirely different terms.
I have considered the issue of whether the problem or the problems that arise out of the character of the inquiry, as it has been described, in relation to count 5 by the jury being entirely different from all the other counts, could be resolved by appropriate direction. I fully accept the fact, and it is often happened in trials over which I have presided, that there has been a joinder of counts, or joinder of accused, in circumstances where even though the counts are themselves disconnected, yet the case is one that's amenable to proper direction in order to give the jury guidance as to the appropriate consideration of issues in the case.
It seemed to me one would be left here in the ridiculous situation, just hypothesising for the moment, of saying to the jury,
"Well, ladies and gentlemen of the jury, if you consider count 5 and you are satisfied beyond reasonable doubt of the guilt of the accused, you are not to find anything arising out of that conclusion that the accused made a false allegation with intent that innocent people be the subject of investigation, in any way whatsoever in determining whether in fact the accused in his denial of guilt in relation to the other counts in the indictment is not to be believed."
That direction, as I have delivered it off the cuff, lacks artistry I understand. The point I am making is that the truth of the matter is that in order to give directions in relation to the matter in some way or another to enable the jury to keep its feet on the ground, one would have to involve oneself in mental gymnastics, to use Mr Brasch's expression, which would reflect the task too of the jury in this respect.
I want to return however to the particular matter stressed by the Crown. Although I am not suggesting for a moment it was the Crown's major point. The point was this: "Well, your Honour, if you separate count 5, you know, there's going to be another trial, a lot of evidence will have to be repeated." Well let me deal with that as I spoke about it to the learned Crown Prosecutor. Yes, I accept the fact in the context of those observations of President Allsop in Ross, that there may, in the prosecution of count 5 separately from the other counts, be of some duplication of evidence. But it is to be pointed out the complainant's evidence in relation to the 14 other counts will be recorded both visually and by audio. That evidence, as it relates to count 5, will thus be available without the complainant having to give evidence again in relation to those matters. True it is it may be that the complainant may be required to give supplementary evidence in just some aspects of the matter, particularly direct evidence she could give in relation to matters relating to count 5 that might not otherwise be admissible in relation to count 4, but that would be a very limited scope of inquiry.
There would be a need to some extent for some evidence from arresting police to be repeated. But there also would be other evidence required from arresting police. It may well be as well the Inspector whose evidence is crucial to the making of the false complaint, would not be required to be given in this trial. Then there is the issue of what might arise if in fact the accused was convicted of all the counts what utility a further trial would serve. If he was acquitted of all the counts, I do not know if count 5 would be prosecuted, or what utility some of the evidence in the Crown case may serve in respect of that count.
[4]
CONCLUSION
In all the circumstances of the matter, notwithstanding what the Crown has submitted in this respect, I have concluded three things independently, but to some extent overlapping, having regard to the legislative provisions with which I am concerned.
The first matter I determine pursuant to s 21 is that it is not desirable for the accused to be tried in relation to count 5 in conjunction with the other counts because evidence that is prejudicial to the accused is incapable of being cured by direction, would be available to the jury and potentially misused by it in the consideration of other counts to which parts of the evidence relevant to count 5 would not be available.
I hasten to say, with respect, that conceding that parts of the evidence relevant to count 5 are amenable to count 4, does not mean that that evidence is relevant or admissible in proof of the other counts of physical violence brought against the accused. I also formed the view that the accused may be "prejudiced" in the conduct of his defence by reason of count 5 being tried with count 4.
Furthermore, I am satisfied by reference to s 29(3) that the two counts should not be tried together "in the interests of justice," primarily because of the prejudicial effect of evidence admissible in relation to count 5 that is not relevant or admissible in relation to other counts, and because, as I have said earlier, I cannot see any form of coherent direction that can be given to the jury to assuage or militate against such prejudice as may be caused by the joinder of the two counts.
Thus, in those circumstances, I order that count 5 be separated from count 4 and the other counts in the indictment.
[5]
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Decision last updated: 14 December 2018