Regina v Mamu Taipavalu [2002] NSWCCA 146

Reported Decision : (2002) 130 A Crim R 513

New South Wales Court of Criminal Appeal

CITATION : Regina v Mamu Taipavalu [2002] NSWCCA 146 FILE NUMBER(S) : CCA 60915/01 HEARING DATE(S) : 19 April 2002 JUDGMENT DATE : 19 April 2002

PARTIES : Regina Mamu Taipavalu JUDGMENT OF : Stein JA at 1 & 20; Sully J at 2; Smart AJ at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0696 LOWER COURT JUDICIAL Freeman DCJ OFFICER :

COUNSEL : L. Lamprati - Crown G. Wendler - Applicant SOLICITORS : S. E. O'Connor - Crown Van Houten Solicitors- Applicant

LEGISLATION CITED : Criminal Appeal Act 1912 (NSW) Gilbert v The Queen (2000) 201 CLR 414 at 425 CASES CITED: Domican v The Queen (1992) 173 CLR 555 Prasad Direction Filippetti Direction (1978) 13 A Crim R 335 DECISION : Leave to appeal refused

IN THE COURT OF CRIMINAL APPEAL 60915/01

STEIN JA SULLY J SMART AJ

Friday 19 April 2002

REGINA v MAMU TAIPAVALU aka CHRISTIAN BIRCH JudgmENT

1 STEIN JA: I will ask Sully J to give the first judgment. 2 SULLY J: This is an application brought pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). The application seeks leave to appeal against an interlocutory ruling made in the District Court in connection with the conduct of a trial, the hearing of which has been fixed to commence on Monday, 29 April instant. 3 The background to the application is as follows: on 3 December 2001 the applicant, Mr Taipavalu, was arraigned in the District Court before his Honour Judge Freeman. There was presented against him an indictment containing eight counts. Counts 1 and 2 charged separate but related firearm offences said to have been committed on 7 May 1999. Counts 3 and 4 charged separate but related firearm offences said to have been committed on 20 December 1999. Counts 5 and 6 charged drug-related offences, one said to have been committed on 21 December 1999 and the other to have been committed on 13 January 2000. Counts 7 and 8 charged two separate but related firearm offences said to have been committed on or about 29 January 2000. 4 An application was made to the learned primary Judge for the severance of the counts thus laid in the indictment, the nub of the application being the proposition that there should be five separate trials; that is to say, two separate trials, one each for one of the two drug-related offences; and three separate trials, one each for two of the related firearm offences. The learned primary Judge indicated that his Honour was disposed to order the separate trial of the two drug-related offences, but to try together the three groups, if I may so describe them, of firearm offences. 5 It is in connection with that ruling that the present application for leave to appeal has been brought.

6 It is relevant to note that in the events which happened subsequently on 3 December 2001, the present applicant pleaded guilty to each of the two drug-related offences, and not guilty to each of the six remaining firearm offences.

7 Put simply, the arguments advanced by learned Senior Counsel for the applicant come down to the proposition that what has been described as "the very disparate circumstances" of each of the three groups of firearm offences justify, on a fair view, the separate trial of each such group of offences. It is, I think, useful to begin a consideration of that argument by some references to basic principle.

8 In an application of the present kind the applicant for leave to appeal carries the burden of proof. It is not a mere formal burden, and it is not a trifling burden. That which has to be established by the applicant is, put simply, that unless there is some such severing as is proposed in the application, some positive injustice will be caused to the applicant.

9 The second principle can be taken conveniently from certain of the remarks of McHugh J in Gilbert v The Queen (2000) 201 CLR 414 at 425. It is not necessary, I think, to quote the entirety of what is said relevantly for present purposes by his Honour, but it will be, perhaps, useful, and it is certainly relevant, to note the following brief paragraph in his Honour's judgment: "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 rejected or disregarded, no one -- accused, trial judge or member of the public -- could have any confidence in any verdict of the 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."

10 If I may say so, with respect, I agree entirely with those observations, and they very much inform the view that I take as to the way in which the present application should now be dealt with.

11 It can be allowed at once that the facts of each group of firearm offences, insofar as this Court has been informed about the facts, show "disparate circumstances". It does not seem to me to follow as a matter of course and without more, that there should be a separate trial for each of those three groups of firearm offences. It must be borne steadily in mind that if the three groups of offences are tried together the law will provide, from the time the trial begins until the time it concludes, a calibrated series of protections for the accused.

12 It is submitted, and I respectfully think correctly submitted, that the resolution of the first pair of related firearm offences will turn essentially upon a question of identification of the present applicant. Insofar as that is the case, the position seems to me to be this:

1. If at the end of the Crown case there is no evidence of identification fit to go to the jury, the trial Judge will withdraw those two counts from the jury, and there will be a directed acquittal of the applicant. 2. If in the view of the trial Judge there is some evidence fit to go to the jury, but it is, in the opinion of the Judge, manifestly weak, then it will be open to the Judge to give the jury what is conventionally called a Prasad direction.

3. It if at the end of the Crown case there is, in the opinion of the Judge, evidence fit to go to the jury on the question of identification; and if at the end of the entirety of the evidence in the trial the Judge is of the same opinion; then the Judge will be required imperatively to give the jury careful and precise directions of the kind now required by the decision of the High Court in Domican v The Queen (1992) 173 CLR 555. 4. It will be an essential part of any charge to the jury which encompasses all six of the firearm offences, that a finding by the jury that the Crown has established beyond reasonable doubt the guilt of the accused on the first pair of firearm offences must not be taken by the jury as warranting, without more, a finding of guilt established beyond reasonable doubt upon either or both of the remaining pairs of associated firearm offences.

13 In connection with the second group of firearm offences it must be the case that the resolution of that pair of offences will turn upon the view taken by the jury of the evidence to be given in support of the Crown case by an informer. Once again, insofar as that proves to be the case, the law provides a series of protections for the accused. What has been said in the paragraphs 1, 2 and 4 above is equally applicable. What is said in paragraph 3 is not applicable; but would be replaced by an obligation on the trial Judge to direct the attention of the jury, in terms, to the dangers perceived by the Courts on the basis of curial experience, of convicting upon the uncorroborated evidence of an informer. 14 The third pair of offences turns upon what might be described loosely as a Filippetti direction: see (1978) 13 A Crim R 335. That is to say, it will be contended that the circumstances in which the relevant weapon was found are such as to raise a real question concerning the possession of the weapon by the accused, or his culpable connection otherwise with the weapon. Once again, the law is not in doubt, and the trial Judge will be required to give, in much the same way as I have previously been describing, careful and precise directions to the jury as to the care the jury will need to take in considering that sort of case. 15 As matters stand, and in addition to the foregoing considerations there is, to say the least, an open question whether some of the evidence admissible in connection with one of the three groups of offences might not be properly admissible in connection with either or both of the other groups of such offences. This Court, as I apprehend, is simply not in a position to come to any final view one way or the other upon that question.

16 What I think can be said at the moment is that it is not apparent that the evidence properly available to be led in connection with each of the three pairs of firearm offences is obviously so particularly confined as to leave no scope for the use of at least some part of the evidence properly led in connection with one pair of offences, in connection also with some one or other of the remaining two sets of offences. 17 I would acknowledge readily that an applicant in the position of the present applicant would perceive the balance of convenience as very much favouring, from his point in view, such a separation of the charges as he now seeks; but it is worth repeating that it is not the balance of convenience that the law requires to be struck for present purposes. The focus of the proper inquiry for present purposes is not where a balance of convenience might be thought to lie, but whether the applicant has demonstrated, affirmatively, positive injustice should his application not be granted. 18 For the whole of the foregoing reasons, I am not at all persuaded that the applicant has discharged that burden in connection with his present application. 19 I would refuse leave to appeal.

20 STEIN JA: I agree with Sully J and with the order which he proposes.

21 SMART AJ: I agree that leave to appeal should be refused. Counsel's point was that there would be ineradicable spillover prejudice that no direction could erase if the three groups of offences were heard together.

22 I do not agree. The judge will have to give directions which are appropriate on the evidence to each of the group of offences once the evidence is complete.

23 The Crown has served both a tendency notice of evidence and a coincidence notice of evidence and it is apparent that it seeks to lead on one group of offences evidence in relation to others and other matters.

24 Counsel for the applicant did not suggest that it could be said at this stage that evidence as to one group of firearm offences would not be admissible on the other groups. That remains to be determined once the evidence is more carefully analysed and we do not have it before us. The evidence before us does not enable this Court to say that the evidence on one group of offences is necessarily markedly weaker than on the others. For example, on the informer group of offences we do not know what the listening device material reveals and what supporting evidence is otherwise available.

25 The judge will have to deal with all these matters as they arise, including whether at a later stage any separate trial should be ordered or there should be any severance of the indictment. 26 On the present material before us, and at this stage of the proceedings, I am quite unable to say that the judge erred in his discretion. Accordingly, I join in the orders proposed. 27 STEIN JA: Accordingly, the order of the Court is that the application for leave to appeal is refused. **********

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