The Queen v Vanko [2014] NTSC 3

 

PARTIES:                                         THE QUEEN

 

                                                         v

 

                                                         VANKO, Matej Hoi Stung

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          21215941

 

DELIVERED:                                   15 January 2014

 

HEARING DATES:                           23 September 2013

 

JUDGMENT OF:                              RILEY CJ

 

CATCHWORDS:

 

CRIMINAL LAW — Practice and procedure — Indictment — Severance — Offences founded on similar facts — Evidence cross-admissible — Series of offences of similar character — Prosecution of a single purpose — Application refused — Criminal Code (NT) s 309, s 339, s 341

 

Sutton v The Queen (1984) 152 CLR 528; KRM v The Queen (2001) 206 CLR 231, referred to.

 

REPRESENTATION:

 

Counsel:

    Prosecution:                                 D Morters with T McNamee

    Defendant:                                   J Lawrence SC

 

Solicitors:

    Prosecution:                                 Office of the Director of Public Prosecutions

    Defendant:                                   Northern Territory Legal Aid Commission

 

Judgment category classification:   B

Judgment ID Number:                      Ril1401

Number of pages:                            7


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

The Queen v Vanko [2014] NTSC 3

No 21215941

 

 

                                                     BETWEEN:

 

                                                     THE QUEEN

                                                        

                                                     AND:

 

                                                     MATEJ HOI STUNG VANKO

                                                        

 

CORAM:    RILEY CJ

 

REASONS FOR RULING

 

(Delivered 15 January 2014)

 

[1]       The defendant came before the court facing five charges all of which were contained in the one indictment and all of which arose out of events said to have taken place on 23 April 2012 at Howard Springs. The first of those was that he murdered Donald Stevens. The remainder of the counts on the indictment related to offences that were said to have been committed against the sister of the deceased, Noelene Stevens. The second count was that he unlawfully entered a dwelling house at Howard Springs whilst armed with a semi-automatic pistol and a knife with intent to commit the crime of assault. The third was that he deprived Noelene Stevens of her personal liberty. The fourth was that he assaulted her with the pistol and, finally, that he threatened to kill Ms Stevens.

[2]       The defendant made application to have count 1on the indictment, the count of murder, severed from the remaining counts. On 23 September 2013 I rejected the application. These are my reasons for so doing.

The principles

[3]       Section 303 of the Criminal Code (NT) provides that, except as otherwise expressly provided, an indictment must charge one offence against one person. However, s 309 of the Code goes on to provide for circumstances in which more than one charge may be joined against the one person in the same indictment. Those circumstances are:

... if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.

[4]       Section 339 of the Code provides the court with the power to quash an indictment on the ground that it is calculated to prejudice or embarrass the accused person in his defence to the charge. Section 341(1) relevantly provides that, where the court is of opinion that the accused may be prejudiced or embarrassed in his defence by reason of his being charged with more than one offence in the same indictment, the court may order a separate trial of any count or counts in the indictment.

[5]       The principles applicable to such an application are well known. The onus rests upon the person contending that a presentment ought to be severed to satisfy the trial judge ‘that it is both desirable and practical to do so in order to ensure a fair trial’.[1] The decision involves an exercise of discretion on the part of the trial judge to which ordinary principles apply.

[6]       In Sutton v The Queen[2] Brennan J observed:

When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury’s mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.

[7]       In KRM v The Queen[3] McHugh J observed:

In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crimes charged in another count or counts in the presentment. If that risk exists, the judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or counts unless, of course, the evidence is admissible in respect of the count or counts. An example of such a risk is the accused being charged on the one presentment with offences against different victims and the evidence in respect of one or more counts being inadmissible in respect of other counts. Ordinarily, however, the court should order separate trials where there are different victims, where the evidence in respect of one victim is not relevant to the charge in respect of the other victims and where the joinder of charges creates a risk of prejudice. But in some cases, an application for the trial of separate counts may be refused on the ground that the convenience of trying the charges together far outweighs any risk of prejudice or, more usually, because a separate trial is not sought. If that occurs, a propensity warning will almost certainly be required.

The present case

[8]       In summary form the Crown case was that Ms Stevens worked for Serco Immigration Services and was the senior manager of the defendant. The defendant felt aggrieved by the way he had been treated by Ms Stevens and other work colleagues. He was frustrated and angry that he was denied promotion. The Crown alleged that as a consequence of his frustration and anger he committed the offences in counts 2 to 5 on the indictment.

[9]       The Crown alleged that on 14 March 2012 the defendant organised a friend to drive him to the Howard Springs residence, which is in the rural area, whilst he hid in the back seat of the car. He participated in this activity for the purpose of ‘scoping’ the residence in preparation for a planned attack upon Ms Stevens. Ms Stevens lived at the residence with her brother Donald Stevens and another man.

[10]    On 23 April 2012 Ms Stevens left the residence in the morning and, at that time, her brother was present and alive and both of her dogs were in good health. When she returned to the residence at about 5:30pm she noted that, unusually, neither her brother nor her two dogs met her or had any contact with her. The door of her brother’s bedroom was shut and the air-conditioning was running. When she went into the residence she was confronted by the defendant and she remained in his company until she escaped at about 9pm. In the intervening period Ms Stevens claimed that the defendant had secured her to her bed by tying her legs and handcuffing her wrists. He threatened her with a pistol and demanded details of her bank accounts. At about 9pm the defendant left the premises, possibly to seek access to the bank account of Ms Stevens. Whilst he was away she managed to escape from her bonds and seek refuge with a neighbour.

[11]    When police entered the Howard Springs premises at about 1:40 am on 24 April 2012, the deceased was found in his bedroom. He had been stabbed to death. The dogs were both found to be dead on the grounds of the residence. Each dog had been stabbed and one of the dogs had been shot to the head with a 9 mm cartridge.

[12]    It was submitted on behalf of the defendant that count 1 on the indictment, the charge of murder, ought be severed from the remaining counts. The defendant acknowledged that the events all occurred on the one day and at the same location in Howard Springs. However, it was argued, the case involved two quite separate matters with two separate victims. It was noted that the knife which Ms Stevens observed in the possession of the defendant seemed to be different from that which caused the injuries to the deceased. It was also contended that the pistol which Ms Stevens observed in the possession of the defendant did not appear to her to be of the same calibre as that which was used to shoot the dog. These are matters for a jury to consider but do not lead to a conclusion that the evidence should not be admitted in respect of count 1.

[13]    It was submitted that the extreme violence inflicted upon the deceased and the dogs was not consistent with or of the same character as the conduct described by Ms Stevens towards her. However, it could not be known what the assailant intended for Ms Stevens, as she escaped. It was then argued there was not a sufficient nexus between the separate instances of offending to warrant the matters being heard together. The jury would be distracted and misled by evidence that was inadmissible in relation to the allegation of murder.

[14]    A consideration of the information available at the time of the ruling made it plain to me that the evidence in relation to counts 2 to 5 was in large part admissible in relation to count 1.

[15]    The Crown case was that there was no connection between Donald Stevens and the defendant before 23 April 2012. It was the ‘poisonous’ relationship between Ms Stevens and the defendant which provided the reason for the defendant to attend at the Howard Springs property. He was there to deal with Ms Stevens and he killed the deceased as part of that process.

[16]    I concluded that, in the absence of additional material, the evidence of Ms Stevens would be admissible against the defendant on the count of murder to demonstrate that: the defendant was present at the property at the relevant time; that he was armed with both a pistol and a knife; that he made comments which suggested he had interacted with the deceased earlier that day; and that he restrained her with ties and handcuffs to her ankles and wrists in a manner consistent with marks found on the deceased. Her evidence was relevant to issues of motive, opportunity and demeanour at around the relevant time.

[17]    For the foregoing reasons, I concluded that all of the charges were founded on the same facts. They formed part of a series of offences of a similar character and were committed in the prosecution of a single purpose being an attack upon Ms Stevens arising out of the poisonous relationship between the defendant and Ms Stevens. The available evidence, assessed at the time of the ruling, was strongly supportive of all matters on the indictment being considered at the same time. The evidence to be led in support of counts 2 to 5 was anticipated to be relevant to count 1 and duplicated the evidence to be led in relation to count 1. In so far as there may have been evidence which was not admissible in relation to count 1, that evidence could be made the subject of appropriate directions. I was unable to see that proceeding on all counts at one time would prejudice or embarrass defendant in his defence.

[18]    In all the circumstances I rejected the application.

 

********************



[1] R v CHS (2006) 159 A Crim R 560 at 575 [73].

[2] (1984) 152 CLR 528 at 541–2.

[3] (2001) 206 CLR 221 at 234–5 [37].