R v Pinzone and Di Carlo[2023] QDCPR 9

DISTRICT COURT OF QUEENSLAND

1. [1]
   Pinzone and Di Carlo are jointly charged with one count of official corruption under section 87(1)(b) of the Criminal Code 1899 (Qld).  The trial is set to commence on Monday.  Pinzone seeks a separate trial.  I am satisfied the interests of justice require there being separate trials. 
2. [2]
   Pinzone and Di Carlo and Pisasale, who was also charged with corruption, although under section 87(1)(a), were all compelled to answer questions at the Crime and Corruption Commission.  After those hearings, each was given the coerced statements of the others.  This was, I presume, done pursuant to section 201 of the Crime and Corruption Act 2001 (Qld).  Such evidence may only be used for the defence of the charge, pursuant to subsection 201(5).  To use the evidence as permitted by that subsection does not contravene section 202, which prohibits publication of answers given at a Commission hearing.  Section 197 provides, relevantly, that the answers are not admissible in evidence against the individual in a criminal trial.
3. [3]
   When Di Carlo sought a permanent stay of the indictment, the prospect of his being cross-examined by a co-accused was relied on as an additional reason to the substantive grounds for the stay.  At the time the Court was told the charge would not proceed as against Pisasale but that Pinzone would be charged.  The argument was that should Di Carlo decide to give evidence he might be cross-examined by a co-accused armed with material from the coerced hearing favourable to the co-accused.  The material would not be admissible against the applicant, but it would be admissible in the case of the co-accused, so the applicant would be deprived of deciding the course he would adopt only according to the strength of the evidence to be led by the Prosecution at the trial unaided by the coerced evidence.  Reference in that regard was made to X7 v ACC [2013] 248 CLR 92, per Hayne and Bell JJ at [124], and also Lee v The Queen [2014] 253 CLR 455 at 41. 
4. [4]
   I accepted the respondent’s submission that the argument was hypothetical and would be for the trial judge to consider should the circumstances requiring it crystallise - similar arguments were relied on by Mr Stevenson in the present application.  I then said that should the predicament become a real prospect, the matter could be raised before trial.  Well, the circumstances have sufficiently crystallised to compel me to this decision.  Mr Stevenson, solicitor for Pinzone, has several times told the Court Pinzone would be going into evidence.  Mr Holt KC, for Di Carlo, while unable to predict with certainty the course of the trial, has stated it was a “genuine prospect” he would seek to cross-examine Pinzone on answers given at the CCC hearing. 
5. [5]
   I have considered whether, despite section 201, section 197 of the Crime and Corruption Act 2001 (Qld) precludes use of the coerced answers by a co-accused, even in cross-examination, on the basis that its adduction for any purpose including to undermine his credibility or reliability would be to admit the evidence against him in his trial.  Were this the correct analysis, the trial may proceed as a joint trial; the coerced evidence, though each has a transcript of the other’s, would not emerge.  I am, however, persuaded that although section 197(2) makes the statement not admissible in evidence against Pinzone, it does not prevent or limit the entitlement under section 201 to use relevant evidence in support of another’s case. 
6. [6]
   Indeed, section 201 seems to facilitate precisely that.  This would, of course, require that the jury be directed that the statement was not admissible against Pinzone and could only be regarded for the case against Di Carlo. 
7. [7]
   Under the Criminal Code 1899 (Qld), two defendants charged with committing the same offence may be charged on the same indictment: Code section 568(11).  Under section 597B:

When two or more persons are charged in the same indictment, the Court may, at any time during the trial, on the application of any of the accused persons, direct that the trial of the accused persons be heard separately.

8. [8]
   Persons charged with a common unlawful purpose should be tried together.  In R v Lewis & Baira [1996] QCA 405, Pincus and Davies JJA referred to, among other cases, R v Harbach (1973) 6 SASR 427 and the High Court decision in Webb and Hay v R (1994) 181 CLR 41.  From those cases, all I need record is it is well‑settled that when accused are jointly charged with committing the same crime, prima facie there should be a joint trial.
9. [9]
   It is equally well-established that whether they should be tried separately is a matter of the trial Judge’s discretion.  Having been compelled to answer questions about the subject matter of the trial, the promise of a fair trial for Pinzone is that his answers will not be admissible against him at his trial; that is, not admissible against him in any party’s hands.  That there is a real possibility that the answers will be exposed under cross-examination in this trial by a co-accused breaks the promise. 
10. [10]
    It might be that the trial judge must direct the jury that the answer is not admissible against Pinzone but is relevant only to Di Carlo’s case.  That would create the usual difficulty for the jury.  But even that will not necessarily be so if section 101 of the Evidence Act 1977 (Qld) is engaged, or, if taxed with an inconsistent statement made at the coerced hearing, Pinzone admits its truth.  It would then be admitted as evidence of the fact. 
11. [11]
    What was, at the time of giving the decision in Di Carlo’s stay application, a mere hypothetical is a real possibility.  In the present circumstances, there is sufficient risk of this unacceptable situation arising that I am compelled to exercise my discretion to order separate trials.  It is not in the interests of justice to let the trial run, perhaps for two weeks of prosecution evidence, only to face the prospect of aborting the joint trial at that stage.  Insofar as administrative matters count - reference was made to this in R v Demirok [1976] VR 244, which Holmes JA, as her Honour was then, cited in R v Swan [2013] QCA 217 - the extra expense and inconvenience of a second trial in the present case is offset, possibly to a considerable extent, by the likelihood that Di Carlo’s trial will run much shorter than a joint trial would as Mr Stevenson has expressed his intention to call Pinzone and several witnesses, and it is less clear than in Di Carlo’s case that admissions and evidence points are settled. 
12. [12]
    So the order will be that Pinzone is to be tried separately from Di Carlo.