Regina v Chami; Regina v TS [2002] NSWCCA 136

Reported Decision : (2002) 128 A Crim R 428

New South Wales Court of Criminal Appeal

CITATION : Regina v Chami; Regina v TS [2002] NSWCCA 136 revised - 1/06/2009 FILE NUMBER(S) : CCA 60116/02; 60164/02 HEARING DATE(S) : 12/04/02 JUDGMENT DATE : 12 April 2002

PARTIES : Regina v Mahmoud Chami; Regina v TS JUDGMENT OF : at 1; Sully J at 35; Bell J at 51

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/1201; 01/11/0846 LOWER COURT JUDICIAL Finnane DCJ OFFICER :

E L Fullerton SC/A Francis (Appellant: Chami) COUNSEL : E Wasilenia (Appellant: TS) M M Cunneen (Crown) Michael Croke & Co (Appellant: Chami) SOLICITORS : M Churchill (Appellant: TS) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - appeal against interlocutory order refusing separate trials - application for separate trials of co-accused - whether prejudice will be suffered if trial not separated - principles. R v Baartman (unreported, NSWCCA, 6 October 1994) R v Middis (unreported, NSWSC, 27 March 1991) R v Patsalis (1999) NSWSC 649 CASES CITED: R v Van Phu Ho (unreported, NSWCA, 18 July 1994) R v Oliver (1984) 57 ALR 543 R v Dellapatrona & Duffield (1993) 31 NSWLR 123 R v Fernando [1999] NSWCCA 66 Gilbert v The Queen 170 ALR 88 DECISION : Re Chami: Application for leave to appeal dismissed; Re TS: (By majority) Application for leave to appeal granted. Appeal upheld. Order that the trial of TS in respect of the two counts he presently faces be severed from the Indictment and there be a separate trial as regards the offences with which he is charged.

IN THE COURT OF CRIMINAL APPEAL 60116/02 60164/02

IPP AJA SULLY J BELL J

Friday 12 April 2002 REGINA v Mahmoud CHAMI REGINA v TS Judgment 1 IPP AJA: TS and Mahmoud Chami together with three others are due to stand trial commencing on Monday 15 April 2002 in respect of an indictment containing 19 counts. TS and Chami each applied to the trial judge, Finnane DCJ, for an order that each be tried separately in respect of the charges brought against them and their applications were refused. Each now seeks leave to appeal against the interlocutory orders made by his Honour refusing those applications. 2 The counts in the indictment relate to several consecutive but separate incidents involving sexual misconduct. 3 The first incident is alleged to have occurred on 30 August 2000 in a car park toilet in Bankstown. The first count in the indictment arises out of the first incident. By the first count, the Crown alleges that, at the car park toilet, TS together with one Mohammed Skaff detained the complainant with intent to hold her for sexual advantage. Two brothers named Sanoussi, who have already pleaded guilty to a similar charge, were also involved in this incident. 4 TS faces a second count arising out of the first incident. The Crown alleges that, on the same date and place, he had sexual intercourse with the complainant without her consent, in circumstances of aggravation, being at the time in the company of other male persons. 5 Chami is not said to have been involved in any offence in the course of the first incident. 6 The second incident is alleged to have occurred some hours later in a car in the grounds of a trotting club car park near Bankstown Airport. The Crown alleges that other accused persons, not including TS or Chami, there sexually assaulted the complainant. 7 A third incident involved occurrences on the same day some time later in the same car while it was travelling to an industrial area in Chullora. 8 A fourth incident is alleged to have occurred at the industrial area in Chullora. The Crown alleges that Chami, together with two other accused persons (not including TS), there detained the complainant with intent to hold her for sexual advantage. In addition, the Crown alleges that, at that place, Chami as well as other accused persons (not including TS) had sexual intercourse with the complainant without her consent in circumstances of aggravation, being at the time in the company of three other male persons. 9 Other accused persons, not including TS or Chami, face similar charges in connection with the third and fourth incidents. 10 A fifth incident took place at the industrial site at Chullora after the applicant Chami is said to have departed from the scene. 11 Finally, two other accused persons, not including TS or Chami, are charged with perverting the course of justice by making false statements to police officers relating to false alibis concerning the earlier incidents. 12 The legal principles to be applied in considering whether a separate trial of co-accused should be ordered are not controversial. In R v Baartman (unreported, NSWCCA 6 October 1994) this court approved the statement by Hunt J in R v Middis (unreported, NSWSC, 27 March 1991) as follows: "Briefly the relevant principles are that (1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and (3) where there is a real risk that the weaker Crown case against the applicant will be immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial."

As Kirby J observed in R v Patsalis (1999) NSWSC 649: "The touchstone must, of necessity, remain general. Is there a risk of positive injustice to the accused were he or she to stand trial jointly with a co-accused." 13 It also has to be noted that this is an application for leave to appeal against a decision that has already been made to refuse a joint trial. Appellate courts will not readily interfere with what a judge does at an interlocutory stage. Leave to appeal will not readily be granted although, of course, if an appropriate case is made out, showing an error or principle apt to cause irregularity or injustice, then this court will grant leave: R v Van Phu Ho (NSWCA, unreported, 18 July 1994). 14 I turn first to the application by TS. 15 Finnane DCJ dealt with the application for a separate trial on the basis that the charges against TS and Mohammed Skaff should be separated from the remaining charges on the indictment and that a joint trial should proceed separately against those two persons. His Honour did not consider the merits of separating only the charge against TS. This, I think, may well have occurred as a result of the way in which the case was argued before his Honour. The judge noted that counsel for TS accepted that a joint trial between TS and Skaff "would be a course which he could not really oppose". I do not agree with that approach and, today, Mr Wasilenia on behalf of TS did not present the case to this court in that way. There is no reason why, if there is to be a separation, the separation should not involve a separate trial against TS alone. 16 In the circumstances, I consider with respect that his Honour fell into error in this regard. This court is therefore required to exercise its own discretion afresh. 17 The central point made by Mr Wasilenia is that while TS was involved in the first incident he was not involved in the others. TS has been joined in an indictment which contains 19 counts, only two of which are in respect of him. None of the evidence that relates to the other 17 counts bears on TS's guilt or otherwise in respect of the two charges he faces. The trial is likely to last some 12 weeks and involve some 70 witnesses. The charges against TS should not take more than two weeks (and could take less) and will involve far fewer witnesses. 18 Essentially, the prejudice that is likely to be suffered by TS were the trial not to be separated falls into two categories. The first, and most serious, is that evidence relating to sexual assaults and other sexual misconduct, inadmissible against him, would be led at the trial. 19 The conduct giving rise to the 19 counts on the indictment can only be described as brutal, cruel, callous and horrifying. The alleged offenders are all, or all but one, from the same ethnic group. The details of the offences are likely to arouse extremely hostile feelings against these persons. The common ethnicity of the offenders could well give rise to generalised feelings of disgust and anger. It is possible that the jury may be influenced by such feelings, brought about by the conduct of all the offenders, when considering their verdict in respect of the counts alleged against TS. 20 It is true that the trial judge would no doubt give very careful and explicit directions warning the jury against allowing any such feelings to affect their judgment. But in the highly charged atmosphere of such a trial where there will be a mass of evidence of these appalling crimes, it may be difficult for a jury, with the best will in the world, to remain entirely objective. In summary, I think that there is a risk of guilt by association. 21 There is no other category of prejudice that concerns the nature and effect of the evidence likely to be led at the trial. Mr Wasilenia did not disclose to us the nature of TS's defence but whatever it may be, the evidence to be led in regards to the seventeen charges unrelated to TS is not likely to concern TS at all, and, hence, is unlikely to impinge directly on whatever defence he might raise. 22 I turn to another category of prejudice that, while relevant, is less important. The trial will be a very long one. As I have said, several weeks of the trial will involve evidence unrelated to TS. It is arguably unfair to require him to bear the vast and unnecessary cost of legal representation that would be required in such a lengthy case when only such a small proportion of it involves the charges faced by him. 23 The Crown contends that TS was factually linked to the other incidents or at least one of them, but none of his conduct of that kind is said to have been criminal in nature and I do not think that the links, such as they are, are of particular importance. 24 To be weighed against this prejudice likely to be suffered by TS is the prejudice to the Crown witnesses who, if the trial is separated, will have to testify on two occasions in relation to the first incident. In particular, this is a matter of serious concern regarding the complainant. She will no doubt find testifying and reliving the incidents giving rise to the alleged offences, a most painful experience. To have to undergo that on two occasions, albeit that the second occasion will be far more limited, will be harrowing indeed. In addition, there will be many other witnesses who will have to testify twice and this will give rise to considerable expense and inconvenience. Furthermore, due regard must be given to the important general principle that persons involved in related or connected crimes should be tried together: R v Oliver (1984) 57 ALR 543. 25 The exercise of weighing up such interests was carried out in R v Oliver (see at 547), R v Dellapatrona & Duffield (1993) 31 NSWLR 123 (see at 133-134); see also R v Fernando [1999] NSWCCA 66 at para 212 and R v Middis (where Hunt J said that he had "balanced the prejudice to the accused against [the] public interest"). The result of such an exercise must, of course, depend on the particular circumstances of each case. 26 I am fully cognisant of the trauma the complainant is likely to have to endure should she be required to testify twice. I also bear in mind the cost and expense of two trials. 27 Nevertheless, it seems to me, the issue regarding TS, when stripped of irrelevancies and fallacious tactical arguments, comes down simply to a balancing exercise between, on the one hand, the potential prejudice to TS in being associated with persons who perpetrated these monstrous crimes (and having to bear several weeks of unnecessary legal costs) and, on the other, the public interest in having all the accused persons face trial together, taking into account the suffering and inconvenience and costs that will result from witnesses having to testify twice. 28 In my view, in the particular circumstances relating to TS, when the test is put so starkly, the liberty of the subject must prevail. 29 I would therefore grant the application for leave to appeal, uphold the appeal and order that the trial of TS in respect of the two counts he presently faces be severed from the indictment and there be a separate trial as regards the offences with which he is charged. 30 I turn now to the application by Chami. 31 Chami stands in a different position to TS. Unlike the case against TS, the offences against Chami arose out of the fourth incident. Moreover, Chami's defence to the counts faced by him is that the complainant consented to sexual intercourse. This means, inevitably, that the Crown will be entitled to lead evidence of the earlier incidents. It would be entirely inappropriate for the complainant to commence her story with what occurred at Chullora as this would give a false picture of her state of mind and the position she was in. Moreover, the history of the assaults committed on her during the course of the earlier incidents and the vulnerable position she came to be in would be relevant to the question of her alleged consent to intercourse with Chami. The Crown would be entitled to lead evidence of what occurred in the earlier incidents in order to rebut Chami's defence of consent. 32 Finnane DCJ said in regard to these matters: "If I were to separate the trials, the Crown would seek to call evidence, possibly from all those involved in the other incidents. And in my opinion, and the facts as I presently know them, the Crown, if it called these people, even against objection, would be likely to be permitted by me to call them, and certainly to call the applicant to rebut any suggestion that she was a willing party in this third incident."

I consider these remarks to be entirely correct. 33 As the evidence of the earlier incidents will, in any event, be admissible against Chami, the powerful considerations involving avoidable inferences of guilt by association and additional cost and inconvenience that I regarded as being of paramount importance in the case of TS do not apply to Chami. 34 In the circumstances, I am not persuaded, in relation to Chami, that the decision by Finnane DCJ is wrong. I would dismiss the application for leave to appeal by Chami. 35 SULLY J: So far as the application by Chami for leave to appeal is concerned, I respectfully agree with the learned presiding Judge. I do not need to add anything to what has fallen from his Honour in connection with either the relevant law or the relevant facts. 36 So far as concerns the application for leave by TS, I regret to say that I have come to a conclusion contrary to that reached by his Honour the presiding Judge. 37 I accept of course that the decisions in Middis and Baartman to which his Honour has referred may be taken as stating in the aggregate the basic principles now relevant. I draw attention, in connection with the decision in Middis, to the proposition advanced by Mr Justice Hunt that "the applicant must show a positive injustice would be caused to him in a joint trial". There are several things to be said about that statement. The first is that it conveys the proposition that there is imposed upon the applicant for a severed trial a burden of proof of real substance. That is a burden which is directed, not at what might be known in other jurisdictions as the balance of convenience, but at the very different proposition that a severed trial if it is to be justified at all, must be justified by "positive injustice". 38 To my mind, what is conveyed by Mr Justice Hunt's proposition is that the applicant to sever a trial undertakes no light burden. It is the fixed position of the common law, at least as I apprehend it, that people who are charged as co-offenders in connection with what might be understood reasonably as a fairly unbroken continuum of serious crime, are ordinarily and properly to be tried together. There are fundamental propositions of public policy, as I respectfully apprehend the relevant stance of the law, that underpin and explain that approach. 39 It is convenient to refer to some observations of McHugh J in a comparatively recent judgment of the High Court: Gilbert v The Queen 170 ALR 88 at pp 96 and 97. 40 The passages are short passages, and I trust that it will not be thought untoward of me if I take a moment to read them in order that those who are listening to what is being said will get at least the general sense of what it is that I take from the decision. 41 Gilbert was convicted by a jury of murder. It was contended for him on his appeal to the High Court of Australia that the trial Judge had erred in not leaving to the jury the possible alternate verdict of manslaughter. One of the arguments put for the appellant appears to have been that if manslaughter had been left as an issue, the jury might well have convicted him of manslaughter, notwithstanding that their verdict necessarily showed that they were satisfied beyond reasonable doubt that the "facts" upon which the "defence" of manslaughter depended were not true. Mr Justice McHugh expresses the view, as his Honour puts it, "that this argument should be rejected as a matter of legal policy as well as legal principle and established authority". There then follows the statements which seem to me to be of particular relevance for the purposes of the present application. Those statements are as follows. "The argument for the appellant is a claim that this court should proceed on one of two bases, each of which necessarily involves an assumption that, if manslaughter had been left as an issue, the jury might have disregarded their sworn duty to give a verdict in accordance with the evidence. The first assumption is that, if manslaughter had been left, the jury might have convicted of manslaughter even though they knew, because of the trial judge's directions, that the appellant was guilty of murder. The second assumption is that the jurors were not convinced beyond reasonable doubt that the appellant knew that his brother intended to kill or to inflict grievous bodily harm on (the victim), that they knew therefore that he was not guilty of murder, but that they nevertheless convicted him of murder rather than acquit him and see him go free. In my respectful opinion, as a matter of legal policy, no court of justice can entertain either assumption. The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was now rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials." 42 I am in respectful and complete agreement with those propositions put by his Honour. I have quoted them at such length because fundamental to the present application is, precisely, the proposition that the jury at the proposed joint trial, if properly directed by the presiding Judge as to the relevant principles of law, cannot be trusted, to put the matter plainly, to then act reasonably, and in accordance with the directions of law that they will have thus been given. 43 For myself, I would never lightly accept that such an inference was to be drawn about the likely course of any trial by jury. As I understand the comments stated with such authority by McHugh J, in my respectful opinion they are entirely correct in principle and are relevant in connection with the present application. 44 The next thing that I would observe about the present application is based upon the celebrated statement of Mr Justice Oliver Wendell Holmes, as he subsequently was, that the life of the law has not been logic, but experience. It would be entirely naïve, in my respectful view, not to understand that there lies behind most, if not perhaps literally all, applications for separate trials, not only a concern with high matters of legal philosophy and principle, but hard, cold, strategic calculations and tactical calculations in connection with the presentation, with the maximum tactical and strategic advantage, of the trial which it is proposed should be severed. 45 The present case furnishes, I think, a very good example of the possibilities that are open in that regard. I imagine that if the Court were to sever the trial of TS, it could be expected reasonably that the trial of the remaining co-accused would thereupon proceed, TS's trial being set aside until it was known what had happened in the cases of the other offenders. That, of course, puts TS, not in the position where he is able to avoid positive injustice, so much as in a position where, depending of course upon how the putative joint trial had turned out, he might be able to procure in substance no less positive an injustice by avoiding a verdict which was in a true sense not representative of where he really stood in the scheme of things, once that entire scheme had been looked at as a whole. [I would presume from what the learned presiding Judge said as a "valuations tactical argument". I regard it as a proposition of established practice in the criminal courts of this State.] [JUDGE'S NOTE: The material in brackets makes, obviously, no sense. The judgment was delivered ex tempore and not from prepared notes. It is impossible to reproduce from unaided recollection what was actually said] I would for myself never lightly encourage that view or that approach to matters of the seriousness of the present matters. 46 It seems to me that before one could say with proper confidence that the applicant had shown that "positive injustice" could result we should look at of the need to know with precision, which I at least do not perceive in the material before the Court, first, what exactly in the end the complainant will say about the applicant; secondly, what in particular the applicant will say about the complainant; thirdly, what in particular other people concerned, in particular other co-accused, will say either about the applicant or about the complainant. These are not artificial considerations. They are the bones and sinew of the practical conduct of the trial of the kind that is proposed to commence next Monday. 47 It seems to me that the party bearing the onus of proof, that is to say the applicant in the present case, needs to demonstrate in a real, practical, positive way some such conjunction of facts and circumstances as to those three matters of which I have spoken, as to justify a reasonable mind in drawing the inference that there is indeed demonstrated "positive injustice" in the sense which I apprehend to have been intended by Mr Justice Hunt in his Honour's judgment from which I have been quoting. 48 I agree, and for the reasons given by the learned presiding Judge, that it is possible to make a case, and a not unpersuasive case, based upon mere convenience; but that does not seem to me to be relevant in a case such as the present kind. It has been stated repeatedly by Courts is that an accused is not entitled to a fair trial in some vague and abstract sense. He is entitled to a fair trial according to law, that being said in the sense that in the world of human affairs the law, like everything else, cannot be expected to be absolutely ideal and absolutely perfect in all circumstances and at all times. 49 I am not at all persuaded that, if the present applicant is presented in a joint trial such as is proposed, he cannot receive a fair trial according to law. 50 For those reasons and with all proper deference to his Honour, I cannot join his Honour in the order that he proposes in relation to the application of TS. That application, too, I would refuse. 51 BELL J: In respect of the applications I agree with the reasons of the presiding judge and with the orders of the presiding judge. 52 IPP AJA: The order of the court will be as I have indicated. **********

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