Supreme Court New South Wales Medium Neutral Citation: R v Mitchison; R v Wells; R v Whelan (No 2) [2016] NSWSC 464 Hearing dates: 6 April 2016 Decision date: 07 April 2016 Before: R A Hulme J Decision: Applications for jury to be discharged is refused Catchwords: CRIMINAL LAW – practice and procedure – application for discharge of the jury – joint trial – whether evidence caused prejudice to applicant – evidence admitted on basis of relevance to credibility of a witness' evidence inculpating a co-accused – where evidence would not have entered a trial of the applicant alone – no unfair prejudice in the circumstances – application refused Legislation Cited: Evidence Act 1995 (NSW) ss 38, 106 Cases Cited: R v Mitchison; R v Wells; R v Whelan [2016] NSWSC 463 R v Pham [2004] NSWCCA 9 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 with Ms I Reed (Whelan) Solicitors: Solicitor for Public Prosecutions Conaghan Lawyers Harris Wheeler File Number(s): 2014/91834; 2014/91855 Judgment 1. HIS HONOUR: Mr Brady SC for the accused Kris Mitchison and Mr Cavanagh and Ms Reed for the accused Ricky Whelan have applied for the jury to be discharged in respect of their clients. In effect, this would leave the trial being concerned solely with the accused Caron Wells. 2. The basis of the application is that prejudicial evidence has been given by Ms Taylor Jane Anderson who is a half-sister to Mr Mitchison and the daughter of Ms Wells. Background 1. In ruling on a pre-trial application by Mr Mitchison for a trial separate from his co-accused (R v Mitchison; R v Wells; R v Whelan [2016] NSWSC 463) I provided the following overview of the Crown case: "[7] 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. [8] 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. [9] 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 another drink with them. [10] 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." 1. Karen Morris, a next-door neighbour to Ms Wells and Mr Macleod, gave evidence early in the trial. It was her evidence that she was alerted to something occurring and sent her partner, Mr Guy Mallinson, to investigate. She followed a short time later. When she entered the house she saw Mr Macleod lying in the hallway with Ms Wells kicking him. Mr Mitchison and Mr Whelan were in the vicinity of the front door. She did not see them assaulting Mr Macleod. She said nothing that could be regarded as inculpatory in relation to those two men. 2. According to versions provided in police interviews the following can be gleaned about the defence cases that will be urged upon the jury. Mr Mitchison's version is that after he and Mr Whelan entered the house after hearing his mother, Ms Wells, say that she wanted the deceased out of her house, there was an incident in the hallway in which the deceased came at Mr Whelan who struck back in a defensive response. Mr Mitchison then kicked the deceased in the chest/shoulder region and put a foot on him, saying "What are you hitting my Mum for?" Mr Mitchison then moved to the front door area and broke up an altercation between Mr Whelan and Mr Mallinson. He then returned to the hallway and saw Ms Wells kicking the deceased. Mr Whelan's version is somewhat similar to Mr Mitchison's. He told police that after the deceased came at him he threw a punch in self-defence. The deceased fell but Mr Whelan grabbed him to prevent him hitting the ground. Mr Mitchison then kicked the deceased once and Ms Wells kicked him several times. Mr Whelan acted to protect the deceased from further such attack. Later, in a bedroom, Mr Whelan saw Ms Wells again kicking the deceased and both he and Mr Mitchison intervened to stop her. Ms Wells provided police with quite a different version. She said that there was only one person who assaulted the deceased and that was Mr Whelan. She saw him punch the deceased, hard, two or three times to the head. She categorically denied any involvement herself and said that no-one kicked the deceased. Aside from the police interview, there is evidence of Ms Wells saying much the same thing to a number of witnesses who have given evidence. Taylor Jane Anderson's disclosure 1. Ms Taylor Jane Anderson rang a police "hotline" on the evening of Thursday 31 March 2016 (the second day of the trial) and reported that Ms Karen Morris recently had told her something to the effect that she was going to give untruthful evidence. Attempts were made to obtain a statement from Ms Anderson but she did not co-operate. Ultimately, she attended court on Tuesday 5 April 2016 and gave evidence in the absence of the jury. It was resolved that on the application of Mr Fitzgerald, counsel for Ms Wells, Ms Morris would be recalled so that the substance of Ms Anderson's account could be put to her. Recall of Karen Morris 1. Ms Morris was called to give further evidence on Wednesday 6 April 2016. In cross-examination by Mr Fitzgerald she said that she had known Ms Anderson as the daughter of her neighbour, Ms Wells, for a long time. She agreed that she had, by chance, seen Ms Anderson at the East Maitland Bowling Club on the evening of Friday 25 March 2016. They had a conversation for a few minutes. They spoke about personal matters; she described it as "just chit-chat stuff". She said that there also was mention of the then forthcoming trial. Ms Morris said that she told Ms Anderson: "Don't worry. I'm going to court. Kris won't go to gaol. I'm going to go and tell the truth." 1. She explained: "What I meant by it is I won't let them down, I'll be there, I'll tell what happened." 1. She denied that she said words to the effect: "Tell Kris not to worry because I will have his back in court. I'd rather see Caron Wells in gaol than Kris." 1. She also denied saying that she would be "covering" for Mr Mitchison in court. She also denied that it had been her intention "to cover for Kris and, therefore, for Ricky" after discussing the events of the night of the assault upon Mr Macleod with them at her home. In effect, it is suggested that she had concocted a version of the events before she made her police statement on 22 March 2014. (The alleged assault was on 16 March; Mr Macleod was hospitalised on 19 March; the matter came to the attention of police on 21 March; and Mr Macleod passed away on 26 March 2014.) 2. It might be noted that Ms Morris was quite adamant in these denials. 3. Mr Brady briefly cross-examined Ms Morris and secured from her that she had told the police the truth and had given truthful evidence in the trial. Taylor Jane Anderson's evidence 1. I granted leave pursuant to s 106 of the Evidence Act 1995 (NSW) for Ms Anderson to give evidence of her version of the conversation at the East Maitland Bowling Club on 25 March 2016. The Crown Prosecutor was granted leave to question her as though cross-examining pursuant to s 38. There was no opposition to either course. 2. Ms Anderson gave the following evidence about the conversation: "Q. I'm going to ask you now to do the best you can to put in precise words if you can what she said and, if you replied or responded, what you've said please. What did she say? A. She said when Kris was in the room she was trying to speak to Kris, and obviously they're not allowed to speak, and-- Q. Sorry, say that again? A. When Kris entered the room, as me and Kris and Amy entered the room-- Q. The poker machine-- A. Machine, yeah. She tried to speak to Kris, and Kris isn't allowed to speak to her, so he walked off, and then she said, she asked when the trial was on, what day it started the week following, and I told her that it was the Wednesday, I think it was, I'm not sure, and she said to tell Kris that pretty much she would have his back, she'd cover for him in court. Q. When you say "pretty much", I'm asking you now to try and use the words that she used. What did-- A. She said to tell Kris that she would cover for him in court. Q. Well, what else did she say, if anything? A. She said that mum, Caron Wells, deserved to be in gaol. Q. What else did she say? A. I don't remember much after that, it was pretty much the end of the conversation. Q. What did you say in relation to what she said to you? A. I just pretty much shrugged my shoulders, I didn't really have much to say, because it's my mum. Q. Well, when she said she would cover for Kris in court, did you ask her what she meant by that? A. No. Q. Are they the only words that she used? A. Yes, that's all I remember." (T418) 1. In cross-examination by Mr Fitzgerald she said that Ms Morris said that "she would rather see Caron in gaol than Kris". Ms Morris' version of the conversation was put to her by the Crown Prosecutor but she denied the significant aspects of it. 2. In Mr Brady's cross-examination, Ms Anderson agreed that Karen Morris had not said that she was going to lie in court. However, she spoke to Mr Mitchison the following morning and told him that "She's going to lie". She explained, "that's the vibe I got off her". She agreed that Mr Mitchison responded with words to the effect, "Why in the world would she need to lie?" The application to discharge the jury 1. Mr Brady submitted that in a trial of Mr Mitchison alone there were would not be evidence of Ms Morris saying she was going to "cover for him in court". Such evidence was only in the trial at the behest of counsel for Ms Wells because it was asserted to be relevant to the credibility of Ms Morris' evidence inculpating Ms Wells. It was submitted that, despite any direction I might give, the jury would think that Ms Morris admitted covering up for something that she saw Mr Mitchison actually do that was worthy of him going to gaol. 2. Ms Morris had given evidence that Mr Mitchison had "never been a violent person"; she had known him all his life; and "he's a good kid". In other words, the jury would regard Ms Morris as biased towards Mr Mitchison and thereby motivated to falsely exculpate him at cost to his largely estranged mother. Mr Brady foreshadowed that this would likely be the effect of Mr Fitzgerald's submission to the jury. That is uncontroversial. 3. It was also submitted that the expression attributed by Ms Anderson to Ms Morris, that she would "cover" for Mr Mitchison in court would lead the jury to speculate as to what it was that Ms Morris saw Mr Mitchison do that actually led to the death of the deceased that she was not prepared to reveal. 4. It was also submitted that the timing of the evidence of Ms Anderson, it being given at the very end of the Crown case, exacerbated the unfair prejudice. 5. In the course of submissions I raised the case of R v Pham [2004] NSWCCA 9 which concerned the difficulty of a jury having regard to some evidence in assessing the credibility of other evidence that was available in the case for one accused but not another. In the way Mr Brady presented his submissions, a similar situation was said to arise here. 6. Mr Cavanagh's submissions were to the effect that his client joined in the application because his case was so closely aligned to the case for Mr Mitchison. 7. Senior counsel for the Crown submitted, in effect, that the concerns expressed in Mr Brady's submissions overstated the problem and, if there be any, they could be dealt with by appropriate directions to the jury. Consideration 1. I reflected on the matter overnight and came to the conclusion that this is what could be regarded as a "storm in a teacup". 2. Mr Brady's concern is that the jury might think that Ms Morris saw Mr Mitchison do something to the deceased that she was not prepared to reveal, but she had chosen instead to inculpate Ms Wells. But, aside from Ms Morris, there were four other people present and potentially in a position to say who did what to Mr Macleod. Ms Wells attributes all the violence to Mr Whelan. Mr Mallinson attributes nothing to Mr Mitchison. Mr Whelan attributes most of the violence to Ms Wells with one kick delivered by Mr Mitchison. Mr Mitchison himself acknowledges a kick to the deceased and then placing his foot on him as he was on the ground. Against this background, I cannot see any reason why the jury would speculate that Ms Morris, who was only very briefly in the house as compared to the others, saw Mr Mitchison do something over and above what those people saw. 3. Moreover, there is a valid argument that Mr Brady acknowledged he would present to the jury that Ms Anderson misinterpreted what Ms Morris said. According to her, Ms Morris said in relation to Mr Mitchison that "she would have his back, she'd cover for him in court" and that "Caron Wells, deserved to be in gaol". Ms Anderson conceded that Ms Morris did not say in explicit terms that she was going to lie; that was simply her interpretation; it was simply "the vibe I got off her". 4. It is understood that Mr Fitzgerald, on behalf of Ms Wells, will argue that a plan was concocted between Ms Morris, Mr Mitchison and Mr Whelan prior to Ms Morris making her police statement on 22 March 2014 to exculpate them at the expense of Ms Wells. There is evidence of some telephone contact but nothing more to support what really amounts to speculation. Conclusion 1. I am not satisfied that there is unfair prejudice for the trials of Mr Mitchison and Mr Whelan to continue jointly with Ms Wells. 2. I am presently doubtful that any direction to the jury is necessary but I am prepared to hear any submission that is made that I should say something by way of direction. It may be that this is probably best left until the conclusion of all of the evidence in the case. Ruling 1. The applications for the jury to be discharged in respect of Mr Mitchison and Mr Whelan are refused. ********** 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