Supreme Court New South Wales Medium Neutral Citation: R v Mitchison; R v Wells; R v Whelan [2016] NSWSC 463 Hearing dates: 17 March 2016 Decision date: 30 March 2016 Before: R A Hulme J Decision: The application by the accused Mitchison for a separate trial is refused. Evidence of alleged assault by accused Whelan of a witness is admissible. Catchwords: CRIMINAL LAW – separate trial application – where joint enterprise assault alleged – prejudicial evidence inadmissible against the applicant but admissible against co-accused – adequate jury directions can avoid unfair prejudice – application refused CRIMINAL LAW – objection to Crown witness evidence – whether evidence of uncharged assault irrelevant to Crown case or unfairly prejudicial to accused – assault inextricably linked with narrative of the offence – evidence relevant to the state of mind of the accused and admissible as transactional evidence Cases Cited: Adam v R [1999] NSWCCA 189; 106 A Crim R 510 Harriman v The Queen [1989] HCA 50; 167 CLR 590 O'Leary v The Queen [1946] HCA 44; 73 CLR 566 R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304 R v Pham [2004] NSWCCA 190 R v Player [2000] NSWCCA 123; 217 ALR 578 Category: Procedural and other rulings Parties: Regina Kris Mitchison Ricky Paul Whelan Representation: Counsel: Mr W Creasey SC (Crown) Mr G Brady SC (Mitchison) Mr R Cavanagh (Whelan) Solicitors: Solicitor for Public Prosecutions Conaghan Lawyers Harris Wheeler File Number(s): 2014/91834; 2014/91855 Judgment 1. HIS HONOUR: Kris Mitchison and Ricky Paul Whelan pleaded not guilty to a charge alleging that on 26 March 2014 at East Maitland they murdered Steven Macleod. 2. Mr Mitchison and Mr Whelan are charged jointly with Mr Mitchison's mother, Caron Anne Wells. The Crown alleges that there was a joint criminal enterprise between the three to inflict violence upon Mr Macleod with the foreseeable possibility that grievous bodily harm would result. The three are due to be tried before a jury at Newcastle on and from 30 March 2016. 3. This judgment deals with two issues raised prior to the trial commencing. 4. First, Mr Mitchison applies to be tried separately from his co-accused. In short, he contends that there would be irreparable prejudice to his prospect of receiving a fair trial before a jury who will hear certain evidence only admissible in the cases of the co-accused. 5. Secondly, Mr Whelan objects to certain evidence the Crown proposes to adduce from a witness, Mr Guy Mallinson. 6. To set the scene in relation to both applications it is necessary to say something about the overall Crown case. Overview of the Crown case 1. Steven Macleod was a 50 year old man who was in a relationship with Ms Wells. They lived together in Kenneth Street, East Maitland. It seems that the relationship was volatile; they were both heavy drinkers and they argued loudly, frequently and sometimes violently. According to the Crown case statement, arguments between the pair had been escalating in the week leading up to the incident in question. 2. On Friday 14 March 2014 Mr Macleod and Ms Wells stayed overnight in Newcastle. They returned to Maitland by train. Mr Macleod then caught a taxi back to their home but he forced Ms Wells to walk. It seems that they remained at home, or mostly at home, on the Saturday night. 3. Mr Mitchison and Mr Whelan were friends who decided to catch up that Saturday evening. They went out to a local hotel and then to a nightclub until the early hours. On their way home they decided to drop by Mr Mitchison's mother's home, anticipating that she and Mr Macleod might be awake and that they might have a drink with them. 4. Very soon after Mr Mitchison and Mr Whelan arrived at the Wells/Macleod home there was an incident of physical violence which resulted in Mr Macleod sustaining a head injury (traumatic subarachnoid haemorrhage) to which he succumbed about a week and a half later. 5. The foregoing has been drawn from the Crown case statement. What follows is derived from the various statements and police interviews that were tendered on the application. Kris Mitchison 1. Mr Mitchison told police in an interview on 26 March 2014 that when he and Mr Whelan arrived at the front door they were met by Ms Wells. She had two black eyes and was saying that she wanted him (Mr Macleod) out: "she kept saying, 'I want him out. I want him out.'". He and Mr Whelan entered the home to have a look, "cause she has said to me before that he hits her and that". 2. He said he saw Mr Macleod in the hallway and he asked, "What are you doing mate?" Mr Macleod grabbed at Mr Whelan's throat and Mr Whelan struck him in a defensive response. He said it might have been an open handed blow but he thought it was probably a fist. Mr Whelan grabbed hold of Mr Macleod as the latter was falling to the ground. Mr Macleod then was seated with his back against the wall. 3. Mr Mitchison then kicked Mr Macleod in the chest/shoulder region. He said that he was not trying to hurt him; it was more to get his attention. Mr Mitchison said he was wearing thongs. He then put his foot on Mr Macleod's chest and said, "What are you hitting my mum for?" 4. A neighbour, Mr Guy Mallinson, had been alerted to the ruckus and came to investigate. Mr Mitchison said he became aware of Mr Whelan and Mr Mallinson exchanging blows out the front of the house. He went out and stopped them; although it was "pretty much over by the time I got there". 5. Mr Mitchison and Mr Whelan then went back inside to check on Mr Macleod and Mr Mitchison said that he saw Ms Wells "kicking the shit out of him"; "fucking booting him". He said that "we [he and Mr Whelan] pulled her off him". He said, "Don't kick him, he's already down". Later in the interview he explained that Mr Macleod was slouched against the wall and Ms Wells was kicking him in the head. He saw her do this at least two or three times. He found it hard to describe the force she was using, although he described it as "like you'd kick a soccer ball". 6. Mr Mitchison and Mr Whelan helped Mr Macleod to his feet. Mr Whelan put him to bed. 7. The pair then went outside to see if Mr Mallinson was alright. They talked to him for five or ten minutes. Mr Whelan and Mr Mallinson shook hands. Mr Mitchison and Mr Whelan then left, but before doing so he said to his mother, "Don't fucking kick him or hit him or nothing while he's fucking sleeping". 8. Mr Mitchison said that he heard Ms Wells say about Mr Macleod, "I don't want the cunt here" many times during the course of the incident. Caron Wells 1. Ms Wells was interviewed by police on 26 March 2014. She gave an account of Mr Macleod being violent towards her. She spoke of the police having to attend the home twice on the night of Saturday 15 March 2014 but claimed that they declined to take any action because of her historic reticence in pressing charges. 2. Ms Wells said that when her son and Mr Whelan arrived at the home, one of them asked, "Did that cunt give you the black eye?" She said that Mr Whelan ran in and she described him delivering forceful punches to Mr Macleod's head two or three times. She said Mr Macleod was striking back but ineffectively. 3. Ms Wells told her son to tell his friend to stop. Mr Mitchison said to Mr Whelan, "Stop, you'll kill him". Mr Macleod fell to the ground, face down. She approached and felt for a pulse. 4. Ms Wells insisted that no-one kicked Mr Macleod and she denied hitting him herself. 5. She also described Mr Mallinson, the neighbour, coming and an altercation that involved him and Mr Whelan which resulted in Mr Mallinson's nose being "busted". Precisely when in the sequence of events was not made clear. Ricky Whelan 1. Mr Whelan was also interviewed on 26 March 2014. He described arriving at Ms Wells' home and finding her distraught and crying as she answered the door. She had black eyes. She said, "I want him out of my house, I want him gone". 2. He and Mr Mitchison went inside to look for Mr Macleod; not to do anything to him. He said he saw him and grabbed him but Mr Macleod turned and swung a couple of punches. Mr Whelan retaliated and hit him once; "that's all". He said he did not know where he hit him but it was probably around the mouth/jaw area. Mr Macleod fell and "I sort of caught him"; he ended up being between Mr Whelan's legs. 3. Mr Whelan stepped back and Mr Macleod was then kicked once by Mr Mitchison and several times by Ms Wells, to the head. Mr Whelan said that he "covered over the top of him" and said, "No, like, you can't do that". Ms Wells was continually saying, "I want him out of my house". 4. Mr Whelan was asked to describe the kicking and he said: "I think they were sort of, lining him up a fair bit and were swinging their foot". It was "like it was just a couple of steps and a kick and then Caron was coming over and she kept on kicking him". 5. Mr Whelan said that he made Mr Mitchison get Mr Macleod a drink of water. Mr Macleod went to the toilet and then lay in bed. 6. Mr Whelan went to the front door where he was grabbed around the throat by Mr Mallinson. There was a struggle and he "probably hit him in the process". However, this was because Mr Mallinson had grabbed him tightly around the throat; he could not breathe. He claimed that he was acting in self-defence, not only in this incident but also in the earlier incident with Mr Macleod. 7. Mr Mitchison broke up the incident between Mr Whelan and Mr Mallinson. Mr Whelan then went back inside and ran out the back where he caught his breath. He then returned and spoke with Mr Mallinson and they apologised to each other. 8. Mr Whelan returned inside with Mr Mitchison. He said Ms Wells was still kicking Mr Macleod; this was while Mr Macleod was lying in bed. They stopped her; Mr Mitchison pulled her away. She was yelling "abuse and stuff". Brooke Palmer 1. Brooke Palmer was in a relationship with Mr Whelan. They had been together for seven years and had two children. She said that on the morning of Sunday 16 March he told her of an incident that had occurred the night before. He gave her an account which is broadly consistent with what he told police in his interview: he touched Mr Macleod who then grabbed him by the throat so he responded with a punch. Mr Macleod was then on the ground and Mr Mitchison and his mother kicked him. Mr Whelan had to stop them. He went outside and later went back inside and saw Ms Wells "laying into the guy again in the bedroom". Guy Mallinson 1. Mr Mallinson made a statement to police on 21 March 2014. He said that when he went over to Ms Wells' home on 16 March he found the front door was open and he entered. He said that Mr Macleod was lying on his side on the ground in the hallway. A man (who must be Mr Whelan) was standing over him rubbing his back or checking that he was alright. Mr Mitchison was standing nearby and Ms Wells was in the kitchen. She said, "Get out, mind your own business" to Mr Mallinson. 2. He bent down to see if Mr Macleod was alright and he copped a punch to the nose. One or two seconds later, Mr Whelan said, "I have a good left hook, haven't I?" 3. Mr Mallinson then went home because his nose was bleeding. When he returned outside he spoke to Mr Mitchison and Mr Whelan. There were apologies. Mr Mitchison said, "We had to drag Caron away because she kept kicking into him". 4. In a "walk through" style interview on 5 June 2014, Mr Mallinson added that when he bent down to check on Mr Macleod he touched Mr Whelan in order to move him out of the way. 5. Mr Mallinson's version was put to both Mr Mitchison and Mr Whelan in their police interviews. Both of them insisted that the incident concerning Mr Whelan and Mr Mallinson occurred outside, not inside. Karen Morris 1. Karen Morris, Mr Mallinson's partner, made a statement on 22 March and was interviewed on 5 June 2014. She said that she went over to the Wells/Macleod home shortly after he did. She said that Mr Mallinson was at the front door with Mr Mitchison and Mr Whelan. Mr Mallinson had a bleeding nose. She entered and saw Mr Macleod on the floor. She said, "I saw Caron kick Steve to his head with her right foot and leg. Steve did not move or make a sound. I knew he must have been out to it." 2. When she went outside she heard Mr Whelan apologise to Mr Mallinson and they shook hands. Mr Mallinson said, "You blindsided me mate. I was just checking on Steve". Mr Whelan said, 'I thought you were going at me mate". Lorraine Brown 1. Ms Brown made a statement on 3 April 2014. She was a casual but long-term friend of Ms Wells. She had a conversation with Ms Wells on the night of 20 March 2014 in which they discussed Mr Macleod being in hospital. Ms Wells said that she understood that Mr Mallinson and Ms Morris were claiming that she had kicked Mr Macleod in the head and she added, "I didn't kick him in the head mate". She explained: "Kris and his mate just landed. I hadn't seen Kris for seven months and they bashed him, yeah mate they smashed him until he shit himself, but I didn't kick him in the head. They're all saying I kicked him in the head but I didn't". Kathleen Cumming 1. Kathleen Cumming made a statement on 26 March 2014. She was a friend of Ms Wells. They had a conversation on 25 March 2014 in which Ms Wells told her that "a young bloke" had come to her home and seen her black eye. She told him that Mr Macleod had caused it. She said, "Then the young bloke [assumed to be Whelan] walked in to my house and said to Steven, 'did you hit Caron'? Then he lashed out and clocked Steven". Summary of the competing versions as to kicking the deceased 1. I understand that it is the question of who did the kicking that is the principal issue as it is regarded as the probable cause of the fatal injury. 2. Mr Mitchison says he kicked Mr Macleod once but he was wearing thongs and it was not hard. It was Ms Wells who kicked Mr Macleod in the head, "like you'd kick a soccer ball" a number of times a short time later. He said she was "kicking the shit out of him". 3. In her police interview, Ms Wells blames Mr Whelan punching Mr Macleod heavily to the head. On her account, there was no kicking at all. She told Ms Brown five days after the incident that she did not kick Mr Macleod. However, she also told her that both her son and Mr Whelan had "bashed him". 4. Mr Whelan admits to punching Mr Macleod once, but in self-defence. He blames Mr Mitchison and Ms Wells for kicking the deceased once he was on the ground: "lining him up a fair bit and … swinging their foot"; "a couple of steps and a kick". He also says Ms Wells further kicked him later when he was lying in bed. An account by Mr Whelan to his partner the following morning was in consistent terms. 5. Ms Morris also claimed to have seen Ms Wells kicking the deceased. 6. Mr Mallinson did not see any kicking but claimed that Mr Mitchison said Ms Wells "kept kicking into him". Summary of competing versions as to the altercation between Mr Mallinson and Mr Whelan 1. Mr Mitchison and Mr Whelan both say that this altercation occurred outside whilst Mr Mallinson says that it occurred inside. 2. Mr Mitchison says that it occurred after Mr Macleod had gone to the floor in the hallway and when he and Mr Whelan had stepped outside. After the altercation occurred, he and Mr Whelan went back inside and Ms Wells was kicking the deceased. 3. Mr Whelan's version seems to have himself leaving the house and having the altercation with Mr Mallinson with Mr Mitchison emerging a short time later to break it up. 4. Ms Wells' account of this event is not entirely clear but it seems she saw something start inside the house and then saw Mr Whelan chasing Mr Mallinson outside. 5. Ms Morris arrived after the altercation but saw Mr Mallinson standing at the front door with a bleeding nose. Submissions in support of the separate trial application 1. Mr Brady SC submitted that his client would be prejudiced by the jury hearing the evidence of Mr Whelan's account to police of Mr Mitchison kicking the deceased and the evidence of Ms Palmer of Mr Whelan saying as much to her. Prejudice would also flow from the evidence of Ms Brown that Ms Wells had told her that both Mr Mitchison and Mr Whelan had "bashed" the deceased. None of that evidence was admissible in the case against Mr Mitchison and it was described as being "significantly different" to the version the jury will hear that he gave in his police interview. 2. Mr Brady submitted that the joint criminal enterprise case alleged by the Crown would be immeasurably strengthened in the eyes of the jury in relation to Mr Mitchison's case if the jury were to hear the evidence which is inadmissible against him. 3. Mr Brady helpfully set out in his written submissions the following propositions established in the case law that were, in the debate before me, uncontroversial: "The Court has the power to order a separate trial if the Court is of the opinion that the matters, "ought to be heard and determined separately in the interests of justice" (Criminal Procedure Act 1986 (NSW), ss 21 and 29). The cases have established the following principles: (a) Where the Crown case is an allegation that the accused were parties to a joint enterprise the starting point is that the matter should be heard as a joint trial, which particularly applies if the co-accused place the blame on each other. (Webb & Hay (1994) 181 CLR 41 at 88-89 per Toohey J; Dominican & Thurgar (1989) 43 A Crim R 24 at 26) (b) The jury will act upon directions given to them by the Judge in relation to which evidence applies to an accused. (R v Pham [2004] NSWCCA 190 at [40]-[41]) (c) There is a public interest in the avoidance of the risk of inconsistent verdicts. (Ross v R [2012] NSWCCA 207 at [24]) (d) There is a public interest in avoiding the inconvenience to witnesses, ensuring finality is reached as expeditiously as possible in one trial. (Ross v R at [24]) (e) The interests of justice are not limited to the interests of the accused. (f) The accused bears the onus of establishing the reasons for the making of an order granting a separate trial. (R v Bikic (2000) 112 A Crim R 300 at [21]) (g) The applicant for a separate trial must demonstrate there is a real risk that a positive injustice would be caused to him as a consequence of the joint trial. (R v Patsalis & Spathis (No 1) (1999) 107 A Crim R 432 at [6]-[13]) (h) A positive injustice can be demonstrated where the prejudicial and inadmissible material against an accused would be likely to turn a potential acquittal into a conviction. (R v Pham at [39] per Adams J (applied in Madubuko v R [2011] NSWCCA 135 at [32] per Hodgson JA)) (i) Hunt J said in R v Midis (NSWSC, 27 March 1991, unreported) applied in R v Baartman (NSWCCA, Gleeson CJ, Power JA and Smart J, 6 October 1994, unreported) and Ross v R [2012] NSWCCA 207 at [25]: (i) where the evidence against the applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him (cf R v Pham per Adams J at [40]; Madubuko v R per Hodgson JA at [29]); (ii) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and (iii) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant, the applicant must show that a positive injustice would be caused to him in a joint trial. The term "immeasurably" has been held to mean "significant although not incommensurable" (R v Pham at [32]). There is also subsequent authority casting real doubt as to whether the proposition that the case against the applicant is significantly weaker than that against the co-accused is a relevant consideration (R v Pham per Adams J at [40]; Madubuko v R per Hodgson JA at [29]). The crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case (R v Pham at [40])." 1. Mr Brady submitted that despite any directions that might be given to the jury, they would be unable to put out of their minds Mr Whelan's version when assessing whether Mr Mitchison was a participant in the alleged joint criminal enterprise. Further, it would not be possible for Mr Mitchison to challenge or test Mr Whelan's version without running the risk of making it admissible in his case. 2. The inability of the jury to put the inadmissible evidence out of their minds when considering the case against Mr Mitchison was likened to the prejudice considered in R v Pham [2004] NSWCCA 190. In that case there was evidence of a police interview of a co-accused that was inadmissible against the appellant but the Crown relied upon it as bolstering the credibility of two critical witnesses. It was held that it would be practically impossible for the jury to assess the credibility of those witnesses in the case against the co-accused with reference to the interview but to make a separate assessment of their credibility without reference to the interview in the case against the appellant. 3. In oral submissions, Mr Brady submitted that this was not a "cut-throat" defence type of case where generally it is considered appropriate that the competing cases be heard by the one jury. Rather, he emphasised that it was the timing of events according to Mr Whelan's version that caused irreparable prejudice to his client in that Mr Whelan has Mr Mitchison kicking the deceased at the same time as he says Ms Wells was kicking him. It would be difficult, if possible at all, for the jury to put that version aside, particularly given the otherwise similar version provided by Mr Mitchison. 4. Mr Brady submitted that the version of events provided by Ms Wells to Ms Brown also could be regarded by the jury as strengthening the Crown's assertion of Mr Mitchison being a participant in a joint criminal enterprise to inflict grievous bodily harm upon the deceased. That is evidence that could not be challenged or tested by Mr Mitchison. Decision concerning the separate trial application 1. There are obvious discrepancies between the various versions. It is possible that this is derived of self-preservation in one or more cases. It also seems likely that the effects of alcohol consumption have influenced one or more recollections. 2. Ms Wells' version is so different from the others that I cannot foresee the jury impermissibly taking it into account when assessing the cases of her co-accused. 3. The versions of Mr Mitchison and Mr Whelan are similar in that they include that Mr Mitchison kicked the deceased once; it is when and how that occurred that is the difference. 4. I am not persuaded that enough has been shown to warrant separation of Mr Mitchison's trial from that of his co-accused. Nothing is before me to suggest that the three versions will not represent the three cases that will be presented to the jury on behalf of each accused. This is not a case in which the inadmissible version of a co-accused will serve to impermissibly strengthen some other incriminating aspect of the Crown case: cf R v Pham. 5. I have considered the matter with the assumption that none of the accused give evidence and that the only evidence of their respective versions will be that to which I have referred above. In those circumstances I anticipate it being possible to adequately direct the jury about the importance of separate consideration of the respective cases. Of course, if one or more accused do give evidence, then his, her or their versions will become evidence available for consideration in each case. 6. The Crown submitted that there would be a possibility of inconsistent verdicts being given if the matter came to be considered by more than one jury. That is a very relevant consideration as well. 7. The application by the accused Mitchison for a separate trial is refused. Submissions in support of the objection to Mr Mallinson's evidence 1. Mr Cavanagh on behalf of the accused Whelan objected to the evidence of Mr Mallinson being assaulted by his client. It was submitted that it is not relevant to the Crown's assertion that Mr Whelan murdered the deceased. It was irrelevant to the Crown's contention that he was involved in a joint enterprise with one or both of the co-accused to inflict violence upon the deceased and irrelevant to whether Mr Whelan foresaw the possibility of grievous bodily harm being inflicted. Moreover, it was said to be unfairly prejudicial in that there would be an invitation to the jury to reason towards accepting those assertions by the Crown from the fact of Mr Whelan having assaulted Mr Mallinson. It would also necessitate Mr Whelan defending himself in respect of an uncharged allegation that he was guilty of assault occasioning actual bodily harm. Decision on admissibility of assault upon Mr Mallinson 1. There is no dispute that Mr Whelan struck Mr Mallinson but there is a divergence in the evidence in terms of where and why it occurred. However, on Mr Mallinson's version, it is inextricably tied to the narrative of what happened to the deceased. Aside from that, the Crown contends that the evidence is relevant to show that Mr Whelan was in an aggressive state of mind at the time, having entered the house with his friend, Ms Wells' son, after seeing her with black eyes and in response to her statement that she wanted Mr Macleod out of her house. 2. I have had regard to the principles discussed in cases such as O'Leary v The Queen [1946] HCA 44; 73 CLR 566 at 575-577, 582; Harriman v The Queen [1989] HCA 50; 167 CLR 590 at 627-635; Adam v R [1999] NSWCCA 189 at [25]; (1999) 106 A Crim R 510 at 515; R v Player [2000] NSWCCA 123; 217 ALR 578; and R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304 at [119]-[138]. 3. In my view, the evidence is admissible both on the basis that it is in the category of transactional evidence and because it is relevant to the state of mind of the accused Whelan at the time of the alleged assault upon the deceased. 4. It may be that Mr Cavanagh might wish me to direct the jury to avoid tendency reasoning. I am prepared to hear submissions at an appropriate time. ********** 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: 19 April 2016