Pantea v R

1. [1]

   HOEBEN CJ at CL: I agree with Bellew J.

2. [2]

   HARRISON J: I agree with Bellew J.

3. [3]

   BELLEW J:

INTRODUCTION

1. [4]

   Evan Pantea (the applicant) has been indicted in the District Court of New South Wales, jointly with Ater Gurin (Gurin), in respect of two counts of robbery in company said to have been committed on 29 November 2018. He brought an application before the trial judge, his Honour Judge King SC, for a separate trial, which was refused. The applicant then sought leave to appeal to this Court, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), against that decision.

2. [5]

   The application was heard by the Court on 19 October 2020. At the conclusion of the hearing the Court made the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

3. [6]

   My reasons for joining in that determination now follow.

THE CROWN CASE AGAINST THE APPLICANT

1. [7]

   The following summary of the Crown case against the applicant is drawn from the Crown case statement. [1]

The events leading up to the alleged offending

1. [8]

   In November 2018 the applicant and Lingeswaran Eswaran (Eswaran) [2] lived together in premises located within a multi-story housing complex in Redfern. CCTV cameras covered points of entry into, and exit from, the complex.

2. [9]

   On the evening of 28 November 2018, and in the early hours of the morning of 29 November 2018, the applicant and Eswaran were inside the premises with a third person, Shantell Tuhi-Burd (Tuhi-Burd). Tuhi-Burd and Eswaran had previously been in a relationship. At some point during that evening, Eswaran told Tuhi-Burd that he and the applicant were going for a “spin walk", a reference to walking around nearby streets in an attempt to find discarded cigarettes. Eswaran and the applicant then left the premises.

Count 1

1. [10]

   At 2:23am on 29 November 2018 Eswaran and Gurin were seen on CCTV footage leaving the complex. Eswaran was wearing a red, blue and camouflage coloured hooded jacket with white stripes down the arms and an "Adidas” symbol on the left breast, a pink cap, pants and dark shoes. Gurin was wearing a black hooded jumper with the word “AIR" written on the right sleeve, a black hat, black pants with white writing on the right leg, a white bandana worn over his face and white shoes.

2. [11]

   At about 2:24am the applicant was seen on CCTV footage leaving the complex. He was wearing a red bandana on his head, a black jumper with white writing reading “money", dark coloured cargo pants and dark shoes. The applicant returned inside briefly but at 2:30am he emerged wearing a grey jumper, dark pants and dark shoes, with a red bandana covering the lower half of his face.

3. [12]

   At about 3:00am Saad Khan (Khan) was walking down Cleveland Street, Surry Hills on his way home from work, wearing a pair of “Beats” headphones and listening to music. Near the intersection of Cleveland Street and Cleveland Avenue, one of the three accused grabbed the back of Khan’s head and shoved him forwards. Khan fell to the ground and saw three males, two of whom were holding pocket knives close to his neck. He felt threatened and thought that he would be harmed if he did not cooperate. One of the three accused said:

4. [13]

   One of the accused then took off Khan’s jumper and said:

5. [14]

   The three accused then put their hands on Khan and checked his pockets. His wallet, watch and mobile phone were all taken from him.

6. [15]

   Khan described the three accused as being slim, in their early 20s, and wearing scarves or some sort of cloth covering their mouths and bottom of their faces, such that only their foreheads and eyes were visible. He described one of the accused as a Caucasian wearing a baseball cap, and the other two as having tanned skin and possibly of African American appearance.

7. [16]

   Khan saw one of the accused with his headphones and another with his phone. The latter accused said to him:

8. [17]

   Khan did not reply, whereupon another accused approached him holding a knife and saying:

9. [18]

   This made Khan fearful and he disclosed the pass code.

10. [19]

    Khan was then asked:

11. [20]

    Khan responded but the accused who asked that question did not hear him. At that point another accused approached Khan with a knife in his hand. The phone was then given back to Khan to allow him to enter his Apple ID. After he did so, the phone switched off. Khan then said:

12. [21]

    His wallet and its contents were returned, save for a Commonwealth Bank debit card. One of the accused then asked:

13. [22]

    The three accused then ran away in possession of the phone, headphones and watch. Khan went home and the incident was reported to police.

14. [23]

    About 3:20am the three accused were seen on CCTV returning to the complex wearing the same clothing, with cloth over their faces, as described by Khan. The applicant can be seen in the footage wearing headphones matching those previously taken from Khan. Eswaran can be seen using a mobile phone.

15. [24]

    Eswaran and the applicant then entered their premises and spoke to Tuhi-Burd. When asked by Tuhi-Burd where he had obtained the phone, Eswaran replied that he had taken it from “some guy". When Tuhi-Burd asked him how he managed to get it unlocked, Eswaran replied:

16. [25]

    Eswaran then gave the phone to Tuhi-Burd and she entered her Apple iCloud account and registered the phone, following which Eswaran and the applicant used the phone to make calls. A week later, Eswaran broke the phone and threw it away.

Count 2

1. [26]

   Eswaran and the applicant subsequently left the premises again, telling Tuhi-Burd that they were going to get some cigarettes. At 4:25am the three accused were seen on CCTV leaving the complex. Eswaran and Gurin were wearing the same clothes as they had been wearing earlier. The applicant was wearing a black hooded jumper with a green square and white writing on the front, “camo" style pants and a red bandana covering the bottom half of his face.

2. [27]

   Earlier that morning Carlos Hernandez (Hernandez) had driven his vehicle to the Surry Hills Shopping Village Mall to buy cigarettes and food. He had consumed a quantity of alcohol beforehand and, feeling its effects, he parked his vehicle in the car park of the Mall and fell asleep. Around 4:30am he woke to the sound of men whispering outside, and saw shadows on either side of his car. One of the accused opened the door of the vehicle and punched Hernandez to the right side of his face, saying:

3. [28]

   Hernandez fell to the ground. He saw one of the accused, who he described as being 20 to 25 years of age with short dark hair wearing dark clothes, run around his vehicle. A second accused, who he described as about 20 to 25 years old and dressed in dark clothing with dark short hair, a neatly trimmed beard and large thick eyebrows, held him to the ground and continued to punch him on the right side of his face. In the course of doing so, a number of items of property were taken from Hernandez, namely:

4. [29]

   Holly Ellis, whose premises overlooked the car park, woke at 4:30am to the sound of car doors opening and closing. When she looked out of her bedroom window she saw the vehicle belonging to Hernandez with both doors open and two men standing next to it. Although she could hear people talking she could not understand what they were saying. Ms Ellis then saw three men standing at the open driver’s side door. She saw two of the men holding Hernandez by his shoulders, and the third standing to the side around the front of the car. She described the three men as being slim, with two wearing black clothing and the third wearing an orange zip up jacket. As she walked away from the window she heard one of the males say:

5. [30]

   She then heard another male say:

6. [31]

   Ms Ellis called triple-0 at 4:40am. Having done so, she looked out the window again and saw that the three accused had left. Hernandez was taken to hospital having suffered a number of significant injuries which required surgery.

7. [32]

   At 4:38am the three accused were seen on CCTV footage returning to the complex. When the applicant and Eswaran went back into their premises Tuhi-Burd saw that the applicant was carrying a tablet device. At that time Eswaran said:

8. [33]

   Tuhi-Burd also saw that the applicant and Eswaran were in possession of money which they said was “from the construction bloke's car".

THE POLICE INVESTIGATION AND ARREST OF THE APPLICANT

1. [34]

   On 21 December 2018 police executed a search warrant at the premises occupied by the applicant and Eswaran and seized:

2. [35]

   Eswaran and the applicant were arrested that day. When interviewed, the applicant:

   1. (1)

      said that he lived at the premises and was the sole lessee;

   2. (2)

      said that “Paul Lingues” (Eswaran) had been staying at the premises for one to two months;

   3. (3)

      denied any involvement in, or knowledge of, the alleged offending;

   4. (4)

      denied recognising himself, or anyone else known to him, in still photographs taken from the CCTV footage.

3. [36]

   Gurin was arrested on 22 February 2019.

THE EVIDENCE

1. [37]

   For the purposes of this application, and in addition to the matters referred to in the Crown case statement, it is necessary to refer in detail to some of the evidence which will be relied upon by the Crown.

2. [38]

   Te-Paka Ngapuhi-Rapana (Rapana) provided a statement to the police on 29 January 2020 [3] in which she stated (inter alia) the following: [4]

3. [39]

   Tuhi-Burd also made a number of statements to police, the first of which is dated 17 January 2019 [5] and includes the following: [6]

4. [40]

   In a subsequent statement dated 19 March 2020 [7] Tuhi-Burd said:

5. [41]

   In a third statement dated 1 October 2020 [8] Tuhi-Burd was shown a number of still images taken from CCTV footage at the complex on 29 November 2018 in the course of which she identified:

6. [42]

   On 30 August 2019 police obtained recordings of telephone conversations recorded between Gurin and Rapana, two of which are central to the present application. The first was at 9:13am on 23 November 2019, at which time Rapana told Gurin that she had been contacted by the police and had provided a statement to them. [14] The following conversation then took place:

7. [43]

   That conversation was followed by a second which occurred at 9:38am [15] and included the following: [16]

THE REASONS OF THE TRIAL JUDGE

1. [44]

   The application for a separate trial which was made to the trial judge was based upon a series of factors. However, the application for leave to appeal to this Court against his Honour’s determination was brought solely on the basis of the prejudice to the applicant which it is said will arise from the admission, in a joint trial of the applicant and Gurin, of the evidence of the two conversations between Gurin and Rapana.

2. [45]

   In the course of his reasons, the trial judge made reference to the decision in R v Middis [17] in which Hunt J (as his Honour then was) set out the principles governing an application for a separate trial. The trial judge also noted the prima face position that where offenders are charged with the joint commission of a crime, there should be a joint trial. [18]

3. [46]

   Having set out the Crown case and some of the evidence in support of it, [19] his Honour made reference to the fact that each of the applicant and Gurin had been interviewed by police. In that respect his Honour said: [20]

4. [47]

   His Honour then made reference to the two conversations and said: [21]

5. [48]

   His Honour then made reference to the evidence to be given at the trial by Tuhi-Burd and Rapana, [22] before saying: [23]

Submissions of the applicant

1. [49]

   Counsel for the applicant accepted that the determination of an application for a separate trial was a discretionary one. He also accepted that he was not able to identify any specific error within the individual categories described in House v The King. [24] However, counsel submitted that the refusal of the application by the trial judge was unreasonable or plainly unjust because his Honour had failed to properly exercise his discretion. Specifically, counsel submitted that the trial judge had failed to identify, or analyse, the prejudice to the applicant in the event of the admission of the evidence of the two conversations in a joint trial. It was submitted that the trial judge had simply stated, without more, that directions could be formulated to overcome any prejudice which might arise.

2. [50]

   Counsel for the applicant further submitted that some of the content of the conversations went directly to Rapana’s credibility and reliability, in circumstances where a challenge to her credibility and reliability was central to the applicant’s defence. Counsel submitted that the positive injustice which would flow to the applicant in the event that he was not tried separately arose from the fact that Rapana was one of the two most important witnesses in the Crown case (the other being Tuhi-Burd), and that Rapana’s credibility would be a central issue for the jury's determination. It was submitted that it would be “naturally open" to the jury to use the statements made by Gurin in the conversations as part of the process of determining Rapana’s credibility and reliability, and that if the trials were not separated the jury would not be able to have regard to the conversations when determining those issues in the applicant’s case.

3. [51]

   This, it was submitted, would lead to the necessity for the jury to be directed that they could take into account what was said in the conversations when assessing Rapana’s credibility and reliability in Gurin’s case, but that they were to disregard the entirety of that evidence when assessing those matters in the applicant’s case. It was submitted that this was “an intellectual task that would be beyond any jury", and that notwithstanding the conclusions of the trial judge, no direction could overcome the irremediable and positive injustice which would arise in that event.

Submissions of the Crown

1. [52]

   The Crown submitted that, generally speaking, the conversations involved Gurin making admissions to the offending in the context of remonstrating with Rapana for having made a statement to the police. The Crown emphasised that neither Gurin nor Rapana had made any reference to the alleged involvement of others at any point in the conversations. More specifically, the Crown emphasised that neither of them had even referred to the applicant, much less implicated him in the alleged offending in any way. It was submitted that the trial judge had conducted the necessary analysis, and that he had correctly concluded that no prejudice would flow to the applicant in the event of the admission of the conversations. The Crown submitted that the correctness of such a conclusion was fortified by the fact that in their respective interviews, neither Gurin nor the applicant had implicated the other in the alleged offending.

2. [53]

   The Crown further submitted that in circumstances where there was, but for the two conversations, little difference in evidence relied upon by the Crown against the applicant and Gurin, the case was amenable to clear and simple directions being given to the jury that they must not have regard to the evidence of the conversations when considering the case against the applicant. In this regard, the Crown pointed to the fact that the evidence which was not admissible against the applicant was confined to the two conversations, and that such evidence was neither excessively lengthy nor complex.

CONSIDERATION

1. [54]

   Section 29 of the Criminal Procedure Act 1986 (NSW) (the CPA) confers a discretionary power to make an order for a separate trial and is in the following terms:

2. [55]

   In Middis Hunt J (as his Honour then was) set out [25] a number of principles to be applied in determining whether to grant a separate trial, and concluded that such an order would be appropriate where:

3. [56]

   The correctness of those principles was subsequently confirmed by this Court in R v Baartman. [26] However, whilst such principles remain instructive, they do not amount to an exhaustive statement of the circumstances in which it may be appropriate to order a separate trial. So much is clear from the judgment of Nettle AJA (as his Honour then was) in R v Henry; R v Gravett; R v Swansson: [27]

4. [57]

   In my view, having regard to all of these factors, there was no error in the exercise of discretion by the trial judge. I have come to this view for a number of reasons.

5. [58]

   To begin with, and acknowledging that the principles formulated by Hunt J in Middis are not prescriptive, this is not a case where the evidence which is admissible against the applicant is significantly weaker than, and different to, that which is admissible against Gurin. The principal difference between the two cases, in terms of the evidence to be relied upon by the Crown, lies in the evidence of the two telephone conversations. Those conversations could not be regarded as positively prejudicial, or indeed prejudicial at all, to the applicant, for the simple reason that at no stage during either of the conversations did either Gurin or Rapana even mention the applicant, much less implicate him in any way in the alleged offending. It follows, again bearing in mind what Hunt J said in Middis, that there is no real risk that the Crown case against the applicant would be made immeasurably stronger by reason of the admission, in a joint trial with Gurin, of the evidence of the conversations.

6. [59]

   I accept that the formation of the opinion which is referred to in s 29(3) of the CPA requires an analysis to be undertaken of the evidence and the nature and extent of any prejudice which might arise, as well as a consideration of whether the matter can be appropriately addressed by giving appropriate directions to the jury. [28] However, I am unable to accept the submission advanced on behalf of the applicant that the trial judge did not undertake that analysis. Whilst his Honour’s reasons could perhaps have been more fulsome, the simple fact is that having considered the evidence, his Honour concluded that there would be no prejudice to the applicant in the event that the calls were admitted into evidence in a joint trial with Gurin. For the reasons I have already set out, there was no error in that conclusion.

7. [60]

   Even if, as was recognised by Hunt J in Middis, some prejudice to an accused is inevitable in any joint trial, it is apparent that his Honour reached the conclusion that any such issue would be capable of being adequately addressed by the jury being directed in the terms that his Honour foreshadowed. That conclusion does not reflect error. There is nothing in the nature or content of the evidence of the conversations, nor is there any aspect of the case as a whole, which would render ineffective a direction of the kind that his Honour contemplated. On the contrary, the terms of any such direction would be straightforward, and of a kind invariably given by a trial judge in such circumstances. [29] Moreover, Courts have consistently proceeded on the basis that a jury will accept, and apply, directions given to them by the trial judge. [30] In all of these circumstances, I am unable to accept that the import of any such direction would, as was submitted on behalf of the applicant, be “beyond the intellectual capability” of the jury.

8. [61]

   It may well be that the credibility of Rapana will be an important issue in the trial. However, as the Crown pointed out, the conversations are generally in the form of Gurin remonstrating with Rapana, and Rapana defending herself, for making a statement to police, in the course of which Gurin made a number of admissions. It is difficult to determine how these circumstances would, as was submitted by counsel for the applicant, bear on an assessment of Rapana’s credit in the applicant’s case.

9. [62]

   In this regard, counsel for the applicant relied significantly on the decision of this Court in Hamalainen v R. [31] In that case, the first of two co-accused had made a series of admissions to a Crown witness (witness 297) which implicated the second accused. Although that evidence was not admissible against the second accused, the second accused had himself made admissions to another witness (witness 789). The evidence of witness 297 as to the admissions made by the first accused was consistent, in some respects, with that of witness 789 as to the admissions made by the second accused. In granting the second accused a separate trial, this Court concluded that there was, in those circumstances, a risk that the evidence of witness 297 (which was not admissible against the second accused) would be impermissibly used by the jury to bolster the credit of both witness 297 and witness 789. [32]

10. [63]

    The facts which lead to this Court’s decision in Hamalainen are immediately distinguishable from those in the present case in one fundamental and important respect. In Hamalainen, the admissions made by the first accused implicated the second accused. The present case is entirely different. Gurin, in making admissions to Rapana, did not implicate the applicant in any way at all. Given that, it is difficult to determine how any of his admissions could be impermissibly used by the jury to bolster the credit of Rapana. Contrary to the submission advanced by counsel for the applicant, this is not a case in which the jury will be called upon to make two assessments of Rapana’s credit in the applicant’s case, one using the evidence of Gurin’s admissions and one not. For those reasons the decision in Hamalainen does not support the applicant’s position.

11. [64]

    It was for these reasons that I joined the making of the orders pronounced by this Court at the conclusion of the hearing.