Armstrong v The Queen - [1990] HCATrans 184

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al4 of 1990
B e t w e e n -
PATRICK JOHN ARMSTRONG
Applicant

and
THE QUEEN
Respondent

Application for special
leave to appeal

MASON CJ
BRENNAN J
DEANE J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Armstrong

22/8/90

AT ADELAIDE ON WEDNESDAY, 22 AUGUST 1990, AT 3.08 PM

MRS. TILMOUTH, QC:

May it please the Court, I appear with

my learned friend, MR J. LISTER, for the applicant
in this case. (instructed by J. Lister)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with
MS A.M. VANSTONE, for the respondent. (instructed
by the Crown Solicitor for the State of South
Australia)

MASON CJ: Yes, Mr Tilmouth.

MR TILMOUTH:

May it please Your Honours, as Your Honours

know there were originally seven charges in the
trial court, and before the trial was embarked upon
there was a preliminary application, of course in
the absence of a jury, to sever the various counts.
Your Honours, the argument is not included,

but it followed as is evidenced from His Honour's short extempore reasons at pages 7 to 9, that the
debate about joinder focussed upon fairly
conventional lines. Your Honours will see at
page 7 for example, about two-thirds of the way
down that His Honour referred to Sutton, DeJesus,

Wilde and Hoch. Perry's case was also discussed.

But the long and short of it was,

Your Honours, as these brief reasons disclose, and
indeed as the directions to the jury disclose, was
that the Crown justified joinder in the end result
on the basis of admissibility of the evidence in
each count on the other counts. Moreover, the
Crown basis of justifying that joinder was said to
be striking similarity between each of the counts,
and therefore it was said that they were admissible
one on the other.
Your Honours, the ruling is brief, as I have

mentioned, but Your Honours will see particularly

at page 9, His Honour said at line 2, that -
the Crown rely on the identification, the car
being noted, the registration number being
noted as well as, of course, the similar white
car and I suppose to a lesser extent the same
geographical area in question. To me that is
really a minimal matter -
that is, the geographical area. His Honour goes on
to say:
I am well aware, of course, that evidence

is not admitted merely to show some criminal propensity. That is sufficient. However, I believe this is an exceptional case. There is
sufficient nexus here although it is one of

Armstrong

22/8/90

those situations in the balance. I believe
that the factual events, the identification of the accused, of the car and to a lesser extent the white car, is a sufficient nexus, bearing
in mind to a lesser extent the dates and
geographical area.

His Honour goes on to say…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Armstrong v The Queen

Details

AGLC: Armstrong v The Queen [1990] HCATrans 184
Case: [1990] HCATrans 184
Decision Date

CaseChat Overview and Summary

This matter comes before the High Court of Australia concerning an application for special leave to appeal by Patrick John Armstrong against the respondent, The Queen. The dispute centres on the trial judge's decision to refuse an application to sever certain counts from an information, thereby allowing them to be tried together. The applicant argued that the counts should have been tried separately due to a lack of sufficient nexus between them and the potential for prejudice.

The primary legal issue before the High Court was whether the trial judge erred in exercising their discretion to refuse the severance of counts. Specifically, the court was required to consider whether the evidence relating to each count was sufficiently admissible in relation to the other counts to justify their joinder, and whether any prejudice to the applicant could be adequately addressed by directions to the jury. The applicant contended that the grounds relied upon by the Crown for joinder, namely striking similarity and admissibility of evidence, were insufficient.

The trial judge's reasoning, as reflected in the transcript, indicated that the Crown justified joinder based on the striking similarity between the alleged offences, including identification of the accused, the vehicle used, and the geographical area. While acknowledging the potential for prejudice and the principle that evidence should not be admitted merely to show criminal propensity, the judge found an "exceptional case" with a "sufficient nexus" to permit joinder. The judge ultimately ordered the severance of count 4, finding no evidence to support it, and also, by endorsement, count 1, which involved a different geographical area and different evidence. The remaining counts proceeded to trial together.

Orders