R v Mitchell & Brown [2005] VSC 43 (2 March 2005)

Last Updated: 17 March 2005

	Do Not Send For Reporting
IN THE SUPREME COURT OF VICTORIA	Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1450 of 2004

THE QUEEN
v
JEFFREY KEVIN MITCHELL AND GAVIN JAMES BROWN

---

JUDGE:	WHELAN J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	2 March 2005
CASE MAY BE CITED AS:	R v Mitchell and Brown (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2005] VSC 43

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Ryan	Solicitor for the Office of Public Prosecutions
For the First Defendant	Mr I. Crisp	Geoffrey Tobin Pty
For the Second Defendant	Mr D. Whitchurch	Kieran S. Cox

HIS HONOUR:

1. The amended presentment in this matter charges the defendant Jeffrey Kevin Mitchell with the murder of Andrew Preston at a place unknown on or about 29 April 2002. It then charges Gavin James Brown with knowingly impeding the apprehension and conviction of Mr Mitchell, such conduct being alleged to have taken place at Cheltenham on 25 July 2002. Mr Brown is alleged to have made a false statement to police about the murder of Mr Preston by Mr Mitchell on that date. It is alleged that he was present at and witnessed that murder.
2. Counsel for each of the accused have sought an order for separate trials. This application was made immediately after I rejected an application on behalf of Mr Mitchell to exercise my discretion to exclude a taped conversation between Mr Mitchell and his co-accused's sister, Leanne Brown, in which it is alleged by the Crown that Mr Mitchell made admissions.
3. The Crown alleges that in the taped conversation, which I have declined to exercise my discretion to exclude, Mr Mitchell confesses that he is responsible for the murder of Mr Preston. It is said that he acknowledges responsibility for that murder in the conversation whilst contending that he acted in concert with Mr Brown. In that conversation it is suggested that Mr Brown was killed by injecting air into his veins. The medical evidence given at the committal suggests that that is unlikely to be the cause of death. There will be no evidence as to the precise cause of Mr Preston's death, assuming he is dead, as no body has been discovered.
4. Mr Brown was interviewed by police on 24 May 2003. In that record of interview he gives an account of Mr Preston's murder. In that account he says that Mr Mitchell stabbed Mr Preston. In the same record of interview Mr Brown speaks of his fear of Mr Mitchell. He refers to prior threats by Mr Mitchell to kill him (Question 239), to a fear that Mr Mitchell would "do the same thing" to him (Question 348), and to an assertion that Leanne Brown "knows what Jeffrey's like too" (Question 498). A suggestion is also made by Mr Brown that Mr Mitchell had threatened to kill both Leanne Brown and Andrew Preston (Question 500). When asked why Mr Brown had not previously gone to the police he responded that he knew what Jeffrey could do to him if he dobbed him in (Question 705).
5. Mr Crisp, on behalf of Mr Mitchell, submitted that separate trials were necessary as no direction could overcome the prejudicial effect of the account given in Brown's record of interview of the stabbing of Mr Preston. The difference between this account, which is not admissible against him, and the account given in the taped conversation, which I have ruled to be admissible, would, he said, lead to utter confusion in a joint trial and to a situation where both the jury and the defence would be faced with what he described as "an impossible situation". He further submitted that the material as to Mr Brown's fear of Mr Mitchell in Mr Brown's record of interview was very prejudicial as it indicated bad character on the part of Mr Mitchell and a propensity to violence. He said this prejudice was insurmountable.
6. He referred to the fact that the authorities dealing with the position where two accused are charged with murder do not apply here as the co-accused in this case are not both charged with murder.
7. Finally, he indicated that even if the problems with Mr Brown's record of interview could be overcome, his counsel in the trial would seek to elicit material designed to establish a defence for Mr Brown and that that would inevitably involve eliciting material as to Mr Mitchell's character and propensity, which was relevant to Mr Brown's defence but was inadmissible against Mr Mitchell.
8. Mr Whitchurch, on behalf of the accused Brown, also sought a separate trial. He confirmed that Mr Brown's case would be that he was afraid of Mitchell and that that was why he did not give a truthful account of the circumstances to police on 25 July 2002. He submitted that there would be confusion if there was a joint trial. He indicated that he was concerned that the assertion in the taped conversation by Mitchell that he acted in concert with Brown would prejudice his defence. He also submitted that the position here was not the same as authorities dealing with a situation where both accused were charged with the same offence.
9. Counsel for the Crown, Mr Ryan, conceded that there would be difficulties in a joint trial.
10. He submitted that Mr Whitchurch could not establish a defence by merely establishing that Mr Brown was fearful of Mr Mitchell. He did concede, however, that the defence of duress was open and that he could not object to the leading of exculpatory material directed towards establishing fear of Mr Mitchell. He accepted that all of the exculpatory material in the record of interview would have to be put before the jury as part of the case against Mr Brown.
11. He submitted that the problems raised by defence counsel could be dealt with by adequate directions and, in particular, by clear directions to the jury requiring them to keep separate the admissible evidence against the two accused. He said that cases where separate trials had been ordered tended to be cases where the evidence against one accused tended to fortify the credibility of a witness giving evidence against the other. He said that was not the position here.
12. Mr Ryan acknowledged that there would be some prejudice to Mr Mitchell in a joint trial, but submitted that was not an uncommon circumstance and that the issue was whether directions were adequate to deal with that prejudice.
13. The applicable principles appear to me to be as follows:

1. Prima facie, where the essence of the Crown case is that two persons were engaged on a common enterprise, there should be a joint trial: R v Demirok;[1] R v Panozzo;[2] R v Hayter.[3]

2. Allegations by one co-accused against another of coercion or duress, even if the conduct of that co-accused's defence means evidence of bad character will be led which is prejudicial to the other accused, does not mean that separate trials must be ordered: R v Gibb and McKenzie;[4] R v Panozzo.[5]

3. The fact that evidence will be led against one co-accused which includes material prejudicial to the other and which would be inadmissible against that other, does not mean that separate trials must be ordered: R v Gibb and McKenzie.[6]

4. Care must be taken to explain to the jury that the case against each co-accused must be considered separately. There are cases, however, where the prejudicial effect of evidence admissible against one co-accused, or led on behalf of one co-accused, is not amenable to nullification by judicial direction. This might be because of a particular feature of the evidence or because of a combination of matters not otherwise requiring a separate trial if considered in isolation: Jones & Waghorn;[7] R v Panozzo.[8]

14. Applying those principles, it seems to me that this case has the following relevant features.
15. The two accused are not each charged with the same offence. They are not both charged with murder. Further, it is not the Crown case that there was a common enterprise. Whilst it is the Crown case that Mr Brown was present when Mr Mitchell murdered Mr Preston, Mr Brown is not charged with any offence arising out of his conduct that night. He is charged with impeding the apprehension and conviction of Mr Mitchell by a statement which he made at Cheltenham some months later. It seems to me that the statements found in the authorities about the importance of persons charged in relation to the same matter being tried together have less force here. Whilst it might be said that the respective charges arise out of the same series of events, they are distinct. Mr Brown is not alleged to have any criminal culpability for the murder itself. The offence which Mr Brown is alleged to have committed is considerably less serious than that Mr Mitchell is alleged to have committed. Notwithstanding these matters it remains of concern that separate trials here will create the possibility of inconsistent verdicts.
16. The evidence which will be led against, and which will also possibly be led on behalf of, Mr Brown will include evidence of a prejudicial nature in relation to Mr Mitchell's general character and his propensity for violence. Mr Brown's defence will involve evidence of fear on his part that Mr Mitchell would murder him if he had told the truth to police in relation to what had happened.
17. In the record of interview, which forms part of the case against him, Mr Brown gives an account of the murder in which Mr Mitchell is said to stab Andrew Preston. This account is not admissible against Mr Mitchell. In the taped conversation with Leanne Brown, which I have declined to exclude, Mr Mitchell made what the Crown alleges are admissions that he was responsible for the death of Mr Preston. In that conversation, however, Mr Mitchell suggests that he and Brown together killed Mr Preston by injecting him with air. The medical evidence given at the committal suggests that that is unlikely to be the cause of death. This is a potential shortcoming in the Crown case which could be significant. The record of interview by Mr Brown, which is admissible against him but inadmissible against Mitchell, provides an "answer" to this problem, namely the deceased was not killed by the injection of air but was stabbed. Given the critical nature of this matter, particularly in a case where no body has been found, I am concerned that a jury might be influenced by Brown's account of what occurred in his record of interview when considering the case of Mitchell no matter what direction I give them on the subject.
18. In my view, separate trials should be ordered here. I have reached this conclusion because I consider that a joint trial will result in substantial prejudice to the defendant Mitchell which is not sufficiently amenable to nullification by judicial direction. The factors which have led me to this conclusion are the following:

1. The two accused are not each charged with murder. It is not the Crown case that they were engaged on a common enterprise.

2. The case against Brown will inevitably involve putting before the jury prejudicial material in relation to Mitchell's character and propensity. This will occur in circumstances where the charge faced by Mr Mitchell is considerably more serious than that faced by Mr Brown.

3. In the case against Mr Brown the Crown will present to the jury a record of interview which will contain a version of events which might be seen to "rectify" a significant shortcoming in an important aspect of the Crown case against Mr Mitchell. I am not persuaded that a direction from me will be effective to nullify the prejudicial effect of placing that inadmissible account of events before the jury.

19. Accordingly, in all the circumstances, I propose to order separate trials in this matter.
---

[1] [1976] VR 244 at 252.

[2] [2004] VSC 110 at [62].

[3] [2005] UKHL 6; [2005] 1 WLR 605 at 608.

[4] [1983] 2 VR 155.

[5] [2004] VSC 110.

[6] [1983] 2 VR 155.

[7] (1991) 55 A Crim R 159 at 164.

[8] [2004] VSC 110.