Herbert v The State of Western Australia - [2016] WASCA 235

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HERBERT -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 235

CORAM: BUSS P
MAZZA JA
MITCHELL JA

HEARD: 17 AUGUST 2016

DELIVERED : 17 AUGUST 2016

PUBLISHED : 23 DECEMBER 2016

FILE NO/S: CACR 120 of 2016

BETWEEN: KODEY RAY SEATON HERBERT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S :CACR 121 of 2016

BETWEEN :TRACEY CHRISTINE HEPBURN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :CORBOY J
File No  :INS 135 of 2015

Catchwords:

Criminal law - Appeals - Multiple accused - Multiple counts in an indictment - Each accused charged with one or more but not all of the counts - Applications for separate trials

Legislation:

Criminal Appeals Act 2004 (WA), s 26
Criminal Procedure Act 2004 (WA), s 133, sch 1 cl 9(2)

Result:

Appeals dismissed

Category: B

Representation:

CACR 120 of 2016

Counsel:

Appellant: Mr S B Watters
Respondent: Mr L M Fox

Solicitors:

Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (WA)

CACR 121 of 2016

Counsel:

Appellant: Mr S R McGrath
Respondent: Mr L M Fox

Solicitors:

Appellant: Stephen McGrath Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Dodd v The State of Western Australia [2014] WASCA 13; (2014) 238 A Crim R 72
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Herbert [No 2] [2016] WASC 222
The State of Western Australia v Micalizzi [2010] WASCA 147

REASONS OF THE COURT: Each of the appellants in appeal CACR 120 of 2016 (Kodey Herbert) and appeal CACR 121 of 2016 (Tracey Hepburn) has appealed to this court pursuant to s 26 of the Criminal Appeals Act 2004 (WA).

The indictment

Kodey Herbert, Tracey Hepburn and Rocky Ray Herbert (Rocky Herbert) have been joined in an indictment which alleges that:
(1)on 2 January 2014, at South Hedland, [Kodey Herbert] wilfully and unlawfully destroyed a motor vehicle and that the motor vehicle was destroyed by fire (count 1);
(2)between 5 November 2014 and 1 May 2016, at South Hedland and elsewhere, [Kodey Herbert], [Tracey Hepburn] and [Rocky Herbert] attempted to pervert the course of justice upon the prosecution of [Kodey Herbert] on a charge of Criminal Damage by Fire by causing Francis Graham Bodey to swear an affidavit withdrawing his statement dated 6 November 2014 (count 2);
(3)on or about 1 February 2016, at South Hedland, [Kodey Herbert] and [Rocky Herbert] were armed with an offensive weapon, namely a baseball bat, in circumstances likely to cause fear to Francis Graham Bodey (count 3);
(4)on 14 February 2016, at South Hedland, [Kodey Herbert] made a threat to unlawfully kill Francis Graham Bodey (count 4);
(5)on the same date and at the same place as count (4), [Kodey Herbert] was armed with an offensive weapon, namely a wooden stick, in circumstances likely to cause fear to Francis Graham Bodey (count 5);
(6)on the same date and at the same place as count (4), [Kodey Herbert] made a threat to unlawfully injure Hayley Tamara Herbert (count 6);
(7)on 30 April 2016, at South Hedland, [Rocky Herbert], with intent to harm Francis Graham Bodey, did an act as a result of which the life, health or safety of Francis Graham Bodey was, or was likely to be, endangered (count 7).
Kodey Herbert is charged with the offences in counts 1, 2, 3, 4, 5 and 6 (but not count 7). Tracey Hepburn is charged with the offence in count 2 (but not the offences in any of the other counts). Rocky Herbert is charged with the offences in counts 2, 3 and 7 (but not the offences in any of the other counts).
Kodey Herbert, Tracey Hepburn and Rocky Herbert have pleaded not guilty. A joint trial of the accused in the General Division of the Supreme Court has been listed for three weeks.
Kodey Herbert filed applications in the General Division of the Supreme Court, pursuant to s 133 of the Criminal Procedure Act 2004 (WA), for orders that:
(a)count 2 be tried separately from the other counts in the indictment; and
(b)counts 3, 4, 5 and 6 be tried separately from counts 1 and 2 in the indictment.
Tracey Hepburn filed an application in the General Division of the Supreme Court, pursuant to s 133 of the Criminal Procedure Act, for an order that count 2 be tried separately from the other counts in the indictment.
Rocky Herbert did not make an application pursuant to s 133.
The State opposed the applications.
On 27 April 2016 and 4 July 2016, Corboy J heard the applications. On 21 July 2016, his Honour dismissed the applications. See The State of Western Australia v Herbert [No 2] [2016] WASC 222.
On 17 August 2016, we heard Kodey Herbert's and Tracey Hepburn's appeals from the primary judge's decision. At the conclusion of the hearing, the appeals were dismissed. These are our reasons for dismissing the appeals.

The State's case as to the circumstances of the offences

The circumstances of the offences, as alleged by the State, are set out in detail in the primary judge's reasons. It is unnecessary to repeat them.

Joint trials and severance: the statutory scheme

Clause 9(2) of sch 1 of the Criminal Procedure Act provides:
If one charge charges 2 or more accused, they must be tried together unless a court orders otherwise under this Act.
Section 133 of the Criminal Procedure Act deals with the power to order separate trials.
Section 133(1) provides that the powers in s 133 may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.
By s 133(2), a court may amend or cancel an order made under s 133.
Section 133(3) provides, relevantly, that if a court is satisfied that an accused is likely to be prejudiced in a trial of a prosecution notice or indictment because it contains two or more charges, the court may order that the accused be tried separately on one or more of the charges.
Section 133(4) provides:
If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
By s 133(5):
In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
Section 26(7) of the Criminal Appeals Act provides that on an appeal against a decision to grant or to refuse a separate trial (as the case may be) this court 'may confirm the order or refusal, or set it aside and make any order that could have been made on the application for a separate trial'.

Joint trials and severance: the relevant legal principles

The relevant legal principles relating to the exercise of the court's power under s 133 of the Criminal Procedure Act to order separate trials are well established. See The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81; The State of Western Australia v Micalizzi [2010] WASCA 147; and Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326. It is unnecessary to repeat them.
We merely note that a condition for enlivening the court's discretion under s 133 to order separate trials is the court's satisfaction, on reasonable grounds, that the accused is likely to be prejudiced in the trial because the indictment contains two or more charges or charges one or more other accused. See Micalizzi [24] ‑ [25].

The primary judge's reasons

The primary judge was not satisfied that either Kodey Herbert or Tracey Hepburn was likely to be prejudiced in the trial because of the joinder of the charges and the accused in the indictment.
As to Kodey Herbert, his Honour concluded that the evidence relevant to the counts against him was cross‑admissible. His Honour was of the view that there was no impermissible prejudice from a joinder of charges or accused where evidence on one charge is admissible on other charges [39] ‑ [41].
As to Tracey Hepburn, his Honour concluded that alleged prejudice arising from the costs of the trial, where much of the evidence in the State brief was not admissible against her, was not prejudice 'in the trial' for the purposes of s 133(4) [47].
The primary judge decided that because he was not satisfied that either Kodey Herbert or Tracey Hepburn was likely to be prejudiced in the trial as a result of the joinder, his discretion to order separate trials was not enlivened. However, his Honour indicated that, if the discretion had been engaged, he would not have exercised the discretion to sever the indictment [42], [48] ‑ [55].

The grounds of appeal

Each of Kodey Herbert and Tracey Hepburn relied on two grounds of appeal.
Kodey Herbert's ground 1 alleged, in substance, that there was a miscarriage of justice when, in all the circumstances, the primary judge failed to order that there be three separate trials, first for count 1, secondly for count 2, and thirdly for counts 3, 4, 5, 6 and 7.
The particulars of Kodey Herbert's ground 1, as amended at the hearing of the appeal, alleged:
(a)As to particular 1.1, the State's proposed evidence in support of count 1 is not significantly probative of the allegations in counts 2, 3, 4, 5, 6 and 7 and vice versa 'such as to allow its cross‑admissibility'.
(b)As to particular 1.2, the State's proposed evidence of 'post offence conduct was not of such cogency [as] to be capable of buttressing the State's opposition to severance'.
(c)As to particular 1.3, if the indictment is not severed the appellant will suffer prejudice which cannot be cured by directions.
Tracey Hepburn's ground 1 alleged, in substance, that there was a miscarriage of justice when, in all the circumstances, the primary judge failed to order that there be two separate trials, first for count 2 and secondly for counts 1, 3, 4, 5, 6 and 7.
Tracey Hepburn's particular 1.1 of her ground 1 alleged that the State's proposed evidence in support of counts 1, 3, 4, 5, 6 and 7 is not significantly probative of the allegations in count 2 and vice versa 'such as to allow its cross‑admissibility'.
Tracey Hepburn's particular 1.2 of her ground 1 alleged that the State's proposed evidence of 'post offence conduct of the two other co‑accused was not of such cogency [as] to be capable of strengthening the State's opposition to the severance application'.
Tracey Hepburn's particular 1.3 of her ground 1 was identical to Kodey Herbert's particular 1.3 of his ground 1.
Each ground 1A alleged, in substance and in the alternative to ground 1, that '[r]elying upon ground 1 mutatis mutandis', counts 1 and 2 should be tried together but separately from counts 3, 4, 5, 6 and 7.
At the hearing of the appeal, counsel for Kodey Herbert abandoned Kodey Herbert's ground 1 and relied on the particulars of his ground 1 as particulars of his ground 1A.

The merits of the appeals

Tracey Hepburn and Rocky Herbert are in a relationship. The relationship has produced three children including Kodey Herbert and Hayley Herbert. Francis Graham Bodey, who is referred to in count 2 and is the complainant in counts 3, 4, 5 and 7, is in a relationship with Hayley Herbert, who is the complainant in count 6.
It is apparent, on the State's case, that there are connections in fact between count 1 and the other counts in the indictment.
As to Kodey Herbert's particular 1.1, the primary judge found, correctly, that the evidence relevant to the charge in count 1 provides the context for the conduct alleged in count 2 and, also, that the evidence relevant to the charges in counts 1 and 2 provide the context for the conduct alleged in counts 2, 3, 4, 5 and 6. The State is entitled to adduce the evidence in question for the purpose of providing context; in particular, to establish the relationship between the various parties; to prove a motive for the alleged offending; and to negate any suggestion of an innocent explanation for Kodey Herbert's conduct and any defence that might be run. The fact that counts 2, 3, 4, 5 and 6 were allegedly committed up to about two years after the alleged commission of count 1 does not deprive the evidence relevant to the charge in count 1 of contextual relevance in relation to the charges in counts 2, 3, 4, 5 and 6.
As to Kodey Herbert's particular 1.2:
(a)counts 2, 3, 4, 5 and 6 allege conduct by Kodey Herbert subsequent to the offence alleged in count 1;
(b)the State will seek to tender evidence of Kodey Herbert's conduct, the subject of counts 2, 3, 4, 5 and 6, as evidence of post‑offence conduct evidencing a consciousness of guilt;
(c)evidence relevant to Kodey Herbert's conduct the subject of counts 2, 3, 4, 5 and 6 may be admissible as part of the State's case on count 1 if the conditions for admissibility referred to in Dodd v The State of Western Australia [2014] WASCA 13; (2014) 238 A Crim R 72 [95] ‑ [116] are satisfied; and
(d)similarly, evidence relevant to Kodey Herbert's conduct the subject of counts 3, 4, 5 and 6 may be admissible as part of the State's case on count 2 if the conditions for admissibility referred to in Dodd are satisfied.
Counsel for Kodey Herbert submitted that the alleged post‑offence conduct may be explicable for reasons other than a consciousness of guilt; for example, hostility within the family dynamic. However, whether that is so will be a question for the jury to consider in the context of all of the evidence which is admitted against him at the trial. The evidence of Kodey Herbert's conduct, the subject of counts 2, 3, 4, 5 and 6, is reasonably capable of evidencing a consciousness of guilt on the basis of the conditions for admissibility referred to in Dodd.
As to Kodey Herbert's particular 1.3, we are satisfied that Kodey Herbert will be adequately protected against the impact of any prejudicial evidence which is inadmissible against him, if it is tendered at the trial in relation to any other accused, by appropriate directions from the trial judge.
None of Kodey Herbert's particulars has any merit. It follows that his ground 1A has failed.
As to particulars 1.1, 1.2 and 1.3 of Tracey Hepburn's ground 1, we are satisfied, generally for the reasons we have given in relation to Kodey Herbert's particulars 1.1, 1.2 and 1.3, that Tracey Hepburn's complaints have not been made out. Her ground 1 has failed.
It was submitted, on behalf of Tracey Hepburn, to the primary judge, that count 2 should be severed and tried separately in that:
(a)Tracey Hepburn was a party to only one of the seven counts in the indictment, namely count 2;
(b)the potential evidence against Tracey Hepburn was contained in only one half of the prosecution brief;
(c)the evidence against Kodey Herbert and Rocky Herbert on the remaining counts in the indictment was irrelevant to the charge alleged against Tracey Hepburn in count 2;
(d)Tracey Hepburn would be prejudiced by the costs of a trial where much of the evidence was inadmissible against her; and
(e)a properly instructed jury would not be capable of distinguishing between evidence that was only admissible against Kodey Herbert or Rocky Herbert and evidence that was only admissible against Tracey Hepburn.
In our opinion, his Honour was correct, generally for the reasons he gave but subject to the point we make in the next sentence, in rejecting those submissions. We merely note that, even if it is permissible to take into account the costs of a trial where much of the evidence in the State brief is inadmissible against an accused (a point which it is unnecessary to decide), relevant prejudice does not arise in the present case because the estimated length of the trial is only three weeks.
Tracey Hepburn's ground 1A is based upon her ground 1. Ground 1 has failed and it therefore follows that ground 1A must also fail.
In our opinion, it is not apparent that the trial of Kodey Herbert, Tracey Hepburn and Rocky Herbert will involve a complicated mixture of evidence, some admissible and some inadmissible against each accused, which a jury could not reasonably be expected to evaluate and deal with appropriately.
The trial judge will give express and careful directions to the jury as to the use which the jury may make of the evidence as against each of the accused. A separate consideration direction will be given. The jury will not be required to disentangle evidence or findings. Its task will be to examine the State's case against each accused, in the context of all of the evidence that is admissible against that accused, separately from the other accused and solely by reference to the evidence that is admissible against the accused in question. The jury will be required to put aside the evidence and findings it may make in relation to one or both of the other accused when considering the case against the accused in question. We are satisfied that the jury will be capable of performing those tasks in accordance with the trial judge's directions. It is reasonable to expect that the jury, properly directed, will not take into account, when it considers the State's case against Kodey Herbert or Tracey Hepburn, any prejudicial evidence which is inadmissible against him or her.
The primary judge did not err as alleged in the grounds of appeal. Severance is not required, at least at this stage, to ensure that each of Kodey Herbert and Tracey Hepburn receives a fair trial.
In any event, the trial judge has power, on his or her own initiative or on an application by Kodey Herbert or Tracey Hepburn, to revisit the question of a separate trial if unfairness to him or her, which is not apparent at this stage and which cannot be guarded against or overcome by judicial directions, emerges during the trial. See s 133(1) of the Criminal Procedure Act.
The grounds of appeal, and the submissions in support of them, are without merit. Accordingly, we dismissed the appeals.