Supreme Court New South Wales Medium Neutral Citation: R v Galbraith [2012] NSWSC 1348 Hearing dates: 6 November 2012 Decision date: 07 November 2012 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Application dismissed Catchwords: CRIMINAL LAW - trials - permanent stay - jury undecided on alternative counts of manslaughter at original trial - manslaughter charged at second trial - whether certain evidence of weapons led at first trial where accused acquitted of murder renders unfair current trials relying upon the same evidence - application for permanent stay of manslaughter charges Legislation Cited: Crimes Act 1900 Cases Cited: Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492 Category: Interlocutory applications Parties: Crown Wayne Nickolas Galbraith (First accused) Robert James Galbraith (Second accused) Brendon David Galbraith (Third accused) Representation: Counsel: W Creasey (Crown) S Walsh (First accused) M Paish (Second accused) J Barnett (Third accused) Solicitors: Solicitor for Public Prosecutions (Crown) C J Boyd Solicitors (First accused) Bluewater Legal (Second accused) Priest McCarren (Third accused) File Number(s): 2010/51899 2010/52404 2010/52496 Judgment 1HIS HONOUR: The accused were all acquitted on 28 November 2011 following a trial before a jury on charges that on 27 February 2010 they did murder Mitchell Voysey. All accused were charged with, and simultaneously tried for, other offences arising out of the same or substantially similar facts, upon which the jury either returned verdicts of guilty or upon which they were unable to agree. One of the matters upon which the jury were unable to agree was whether or not the accused were guilty of alternative counts of manslaughter. The accused have now been put upon their trial on that count and one other pursuant to an indictment relevantly in terms to which they have all consented as follows: "That [the accused] on 27 February 2010 at Port Macquarie in the State of New South Wales unlawfully did kill Mitchell Reginald Voysey." 2Ms Walsh of counsel for Wayne Galbraith seeks a permanent stay of the manslaughter charge. Counsel for his co-accused join in that application. Ms Walsh formulated the basis of the application in this way: "WALSH: Your Honour, in relation to a stay of the manslaughter charge, it's made on the basis of that the Crown informs me that they will be proceeding in this case as they did in the last case regarding the evidence of the weapons and also regarding the evidence of Mr Zac Kenzig and the assault he alleges upon him. We say that the jury will unfairly take those matters into account when considering the joint criminal enterprise or meeting of minds, the fact that it's alleged that all three accused armed themselves and that at least Brendon Galbraith assaulted Zac Kenzig and that that was part of a joint criminal enterprise. They will necessarily take those matters into account and we say in an unfair way to all three accused. I had considered making an application that no references be made to the weapons and that no reference be made to the assault on Zac Kenzig, but I had to concede with the Crown that it's almost impossible to proceed in that way with each of the witnesses having their version of events to be restricted to not mentioning something they say they saw, for instance. So if it was a smaller matter that could be taken out and those witnesses not called, but because the essential witnesses and obviously, in particular, we want the opportunity to cross-examine Keira Costmeyer and Zac Kenzig again." 3In aid of the application I was referred to part of my summing up to the jury in the original trial. The following portion of that summing up is said to be relevant: "Now, I want to turn now to the issue of whether or not the accused at any time had in their possession poles or bars or what have sometimes been referred to in a conclusive way as weapons. Before I consider some of the evidence of some of the witnesses I just want to speak to you about this concept as an issue in the proceedings that may have appeared to develop a particular prominence of its own. That is the issue of whether any of the accused was carrying a weapon. I use that expression as a general description of what is being considered. At least one witness, Tara Mulholland, referred to "weapons". To the best of my recollection none other of the witnesses did so. Others have preferred to refer or to use descriptions of what they saw or thought they saw were the particular items or implements that the accused were said to be carrying. Whatever be the correct description, it needs to be said that the presence of these or any such items in the hands of the accused or in the hands of any one of them is not a precondition in and of itself to a finding of their guilt or the finding of the guilt of any one of them on any one or more of the charges. The presence or absence of these weapons or implements is in this sense wholly neutral when considering the strict proof of the elements of these offences by the Crown beyond reasonable doubt. Put another way, if there were not even the slightest hint or suggestion of any such items, but the facts were otherwise completely the same in this case, the accused could in any event have been charged with these offences in the same terms and your task in those circumstances would have been the same as that which now confronts you. However, importantly for your purposes, the presence or absence of these items will necessarily have a considerable relevance, as counsel have emphasised, to your deliberations in a number of ways. First, you may think that a person of reasonable firmness would be more likely to fear for his or her own safety if the accused alighted from the vehicle armed with metal bars or gear or steering wheel locks or similar. That is a matter for you to decide. Secondly, on the question of how Mr Blundell came to be injured in the way that he was, you may question whether he was punched as Wayne Galbraith described or was struck with an implement or sustained his injuries in some other way. Your attention has been directed to the evidence of the doctor and to the distinction between focal and diffuse injuries. As I understand the evidence, as it came out, and again it is a matter for you, the injuries that were caused to Mr Blundell, did not necessarily require the use, according to the doctor, of an implement or a weapon, and he described what he saw and gave his opinions, in general terms. Once again it is a matter for you to determine. Thirdly, the question of whether there were weapons or not, may inform your consideration of whether the accused formed an agreement or understanding at some particular time, or at any time at all, for the purposes of determining whether anything the accused did was done pursuant to a joint criminal enterprise. The presence of weapons may be more consistent with any such agreement being formed at Locksley Place whereas the absence of weapons may suggest that such an agreement or understanding may have been formed later, if it was formed at all, perhaps at a time close to when the car they were driving in, came to a sudden stop at Lake Road. The questions of weapons or no weapons will also be very relevant to other matters that you consider as you deliberate. Of considerable importance, the presence of weapons may inform your consideration of the question of whether or not any of the accused formed the necessary intention to cause grievous bodily harm to Luke Blundell. You might think that if Mr Blundell was not struck, using a weapon, but was only punched, for example in the way described by Wayne Galbraith, then you could not be satisfied beyond reasonable doubt that there was ever any intention to cause him grievous bodily harm and secondly, that there could never have been any agreement or understanding between or among the accused to cause him grievous bodily harm. In other words, you may think that in the absence of any weapons, the ability of the Crown to prove the necessary intention to cause grievous bodily harm to Mr Blundell, beyond reasonable doubt, would be considerably diminished. Furthermore, on the question of whether any of the accused could be found guilty beyond reasonable doubt, as part of some joint criminal enterprise, of either offence in this case that requires proof of an intention to cause grievous bodily harm to Mr Blundell, you might think that it would be very difficult for the Crown to prove, in the absence of a weapon, that there could have been anything more than a slender chance, and certainly not a substantial risk, that any of the accused had formed any intention to cause grievous bodily harm to Mr Blundell." 4The application proceeded upon the basis that it would now be unfair for the accused to be put upon their trial for manslaughter if any reference to the possession of weapons of any kind by any of the accused were to be permitted. As the Crown has indicated that it intends to lead evidence in all relevant respects in an identical fashion to the first trial, the accused all anticipate that the evidence of weapons alleged to have been in their possession at the first trial will again be led or tendered and that an inherent unfairness will arise as a result. The precise nature and extent of this alleged unfairness was not immediately apparent to me following submissions on the point. To that end I attempted to highlight a comparison between the original trial and the present trial in a way that would clarify the propositions for which the accused all now contend. The following exchange between me and counsel gives some content to that attempt: "HIS HONOUR: Well, let me just ask you this question rhetorically. WALSH: Sure. HIS HONOUR: Let's assume that twelve months ago we were all gathered here and the only charges that confronted any of the accused were those exclusive of the murder charge, so that they were principally put on their trial in relation to the death of the deceased as some form of unlawful act in the circumstances. I can only assume ... in such circumstances the Crown would have led evidence in relation to the weapons as well. Would that have been inherently unfair to the accused in those circumstances, on your analysis? WALSH: It would not, your Honour, because the accused, obviously, would have the benefit of a lesser charge than the facts would suggest. HIS HONOUR: Well, again-- WALSH: It's the fact they have been acquitted of the murder and that I say necessarily the weapons played a role in that acquittal and yet now the accused have no benefit of that acquittal whatsoever, they're meeting exactly the same Crown case again and they're tailoring it to a lesser charge. HIS HONOUR: All right. I'm not being obtuse about it, what's the unfairness if the original trial - I'll say it again. What's the unfairness if they'd originally been put on their trial for an unlawful death such as they face now? WALSH: Well, it wouldn't be unfair because the facts of the Crown's case pointed to murder and that's what they were charged with. This time they've been acquitted of murder and yet they rely on facts that establish murder. Now, the jury's not going to know any difference between that 'If we believed in weapons we'd be looking at a murder charge here'. It's the joint criminal enterprise aspect that the jury will no doubt take the weapons into account for and the assault on Zac Kenzig." 5Counsel for the remaining accused did not make submissions on the application that took the matter any further. 6The Crown responded to the application by also drawing my attention to a portion of my summing up in the original trial. It also dealt with the question of the significance of the presence or possession of weapons in the hands of the accused. The particular portion of my summing up was as follows: "I simply wanted to make sure that you appreciated, because of the particular emphasis that the implements have received in these trials, that their presence or absence is not a separate or discrete element of any of the offences charged on the indictment, but will necessarily nevertheless be of great importance to your deliberations about whether the accused can be found guilty beyond reasonable doubt. The charges of murder and intentionally inflict grievous bodily harm come to mind as those in which the presence or absence of any weapons is particularly significant, although not limited to those charges." 7The Crown emphasised on this application in effect that a not dissimilar direction could be given to the jury in due course dealing with the evidence as it ultimately falls out concerning so-called weapons, and the place that any such evidence should take in the scheme of the trial. The Crown contended in the event that there was in fact no potential for any unfairness at all, and certainly not unfairness akin to anything that the accused sought to identify on this application. He referred me to the decision of the High Court of Australia in Washer v The State of Western Australia [2007] HCA 48; (2007) 234 CLR 492. That was a case in which the accused sought at his trial to adduce evidence of an acquittal at an earlier trial on charges based on some facts that partly overlapped with facts touching the charges brought against him in the later trial. Gleeson CJ, Heydon and Crennan JJ said this at [42]: "[42] No doubt there are cases in which the reception at a later trial of evidence of conduct that has been the subject of an earlier trial will make evidence of the fact of acquittal at the earlier trial relevant and admissible. However...it will not be so in every case. It was not so in this case." 8The stage has not been reached in the present trial at which the relevance or admissibility of the acquittal of each of the accused of murder at the earlier trial is being considered. The accused all simply contend now that part of the evidence before the jury in their original trial for murder, on which count they were all acquitted, ought as a matter of fairness be kept from the jury in this trial. The accused recognise and accept that it would not be practical or even possible now to attempt to quarantine evidence about weapons from several witnesses who previously gave evidence about them. The only solution in the circumstances, therefore, is said to be the grant of a permanent stay on the charges of manslaughter that each accused now faces. 9Section 18(1) of the Crimes Act 1900 is in these relevant terms: "18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person... (b) Every other punishable homicide shall be taken to be manslaughter. (2)..." 10I anticipate that the Crown will proceed in this trial upon the basis that the death of the deceased was a punishable homicide that occurred as the result of a joint criminal enterprise, to the effect that an agreement was reached between or among the accused either to threaten or occasion violence to particular alleged victims from which the deceased fled into the path of a passing car causing his death. The extent to which, if at all, that analysis includes or relies upon the presence of weapons in the hands of the accused or any of them remains to be seen. The fact that the accused were acquitted of the charge of murder in a trial based upon facts that included allegations that they possessed weapons does not seem to me to lead to the conclusion that a trial on the lesser charge of manslaughter based on the same facts must necessarily be, or is even apparently likely to be, unfair as a result. Moreover, even if contrary to my current impression some fundamental unfairness of the type now flagged by the accused either began, or appeared likely, to emerge, the matter could be revisited. Without in any way wishing to foreclose upon such an outcome, I must say that at present no potential for unfairness of the type under consideration in this application has yet become apparent to me. 11Moreover, the hypothetical question that I posed for counsel does not seem to me to be capable of an answer that favours this application. The Crown in other circumstances might have chosen originally to proceed against the accused upon charges of manslaughter alone. The fact that they did not do so does not seem to me adversely to interfere with the fact that the Crown is now proposing to do just that. The jury in this trial will be the beneficiaries of precisely the same evidence as that which would have been presented if manslaughter had originally been charged but murder had not. The fact that the accused have been acquitted of murder on those same facts does not appear to me meaningfully to inform the current debate. 12I consider that the application by all accused for a permanent stay of the charges of unlawful killing should be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2012