Powch v Regina
[2006] NSWCCA 147
•27/04/2006
CITATION: POWCH v REGINA [2006] NSWCCA 147
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 27 April 2006 JUDGMENT OF: McClellan CJ at CL at 1; James J at 22; Hall J at 23 EX TEMPORE JUDGMENT DATE: 04/27/2006 DECISION: Application for leave is refused CATCHWORDS: CRIMINAL LAW - application under s 5F - trial proceeding - refusal to grant application for a separate trial - refusal to grant a stay pending appeal on separate trial - whether separate trial necessary on some counts - sexual assault - firing a firearm - assault - series of charges in relation to one person - whether injustice to defendant in not separating trial - admissibility as evidence of relationship - trial judge's direction to admit evidence - whether adequate directions to jury can be given LEGISLATION CITED: Criminal Appeal Act 1912 CASES CITED: Saunders (1994) 72 A Crim R 347 PARTIES: John Powch (Appl)
The CrownFILE NUMBER(S): CCA 2006/892 COUNSEL: C Davenport SC (Appl)
D Frearson SC ( Crown)SOLICITORS: B Duchen (Appl)
Director of Public ProsecutionsLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/3221 LOWER COURT JUDICIAL OFFICER: Sweeney DCJ LOWER COURT DATE OF DECISION: 24/04/2006
2006/892
THURSDAY 27 APRIL 2006McCLELLAN CJ at CL
JAMES J
HALL J
1 McCLELLAN CJ at CL: John Powch has been arraigned in the District Court on seven counts. As we understand the position at least two preliminary questions have been argued in respect to the conduct of the trial.
2 The first of those questions related to the admissibility of evidence of the relationship between the applicant and the complainant which the Crown had indicated it proposed to tender at the trial. The second question was whether or not, having regard to the nature of the individual counts, the trial of some of those counts should be separated.
3 The trial judge determined at this preliminary stage of the proceedings that the evidence of the relationship between the applicant and the complainant could be admissible at the trial. Her Honour also declined to grant the application for a separate trial.
4 A further application was made to her Honour seeking a stay of the matter pending an appeal to this Court pursuant to s 5F of the Criminal Appeal Act 1912. Her Honour declined that application. As we understand it the jury has now been empanelled and the trial is proceeding.
5 Before this Court this morning the applicant seeks leave pursuant to s 5F(3) to agitate the application for a separate trial. The applicant has been arraigned on seven counts. Drawing upon her Honour's judgment the first three counts allege sexual assaults on the complainant occurring between dates in September 1998 to January 1999. The fourth count alleges an assault on the complainant occasioning actual bodily harm between dates in December 1998 and January 1999. The applicant submits that these four counts should be the subject of a separate trial.
6 Count 5 relates to an allegation that the applicant fired a firearm with disregard for the safety of the complainant. That action is alleged to have occurred between 1 January 2000 and 31 December 2000, being a period of time separate from the earlier alleged offences. Although that alleged action plainly involves violence or an apprehension of violence, no sexual allegation is related to it.
7 The final two counts, 6 and 7, allege that on 3 July 2001 the applicant broke and entered the house of the complainant and committed a serious indictable offence therein, namely, assault occasioning actual bodily harm in circumstances of aggravation, and on the same date that the applicant detained the complainant with intent to hold her for advantage to himself.
8 Her Honour determined the question of the admissibility of the disputed evidence before dealing with the matter of a separate trial. The evidence, as I understand it, which the Crown proposes to tender, is of a relationship between the applicant and the complainant extending over many years and well before the alleged sexual assaults in 1998 and 1999.
9 The relationship, although it has existed at various times, has apparently been interrupted on occasions and at least one of those interruptions was for a significant number of years.
10 Her Honour determined that the evidence which the Crown foreshadowed would be admissible and furthermore determined that its prejudicial effect was not such that it should be excluded.
11 Counsel before this Court this morning has sought to agitate whether or not her Honour's ruling was correct. However, that is not a matter which arises in relation to this application which is confined to the question of a separate trial. Nevertheless, in some respects consideration of that material is, as counsel has indicated, relevant to the question of whether or not a separate trial should be afforded to the applicant.
12 To my mind the question before this Court must be determined having regard to the nature of the proceedings and mindful of the capacity for the trial judge to consider, at the point at which the relevant evidence is being tendered, whether or not it should be admitted and having regard to her Honour's capacity to provide appropriate directions to the jury both at the point at which any evidence is tendered and in her final directions.
13 The Crown submits that although it may be accepted that the evidence relevant to the allegations in counts 5, 6 and 7 does not suggest a sexual component to the applicant's conduct, nevertheless it is evidence which affords an understanding of the relationship between the applicant and the complainant which is frequented with violent episodes. The Crown submits that it would be relevant for the jury to understand the history of that relationship in determining at least some of the charges.
14 Prima facie, in my view, there is force to that argument. However, if the evidence is to be admitted it will be necessary for the trial judge to provide the jury with careful directions as to the way in which that evidence may be used. Evidence of violence towards the complainant on later occasions would be unlikely to have any relevance to whether or not she gave consent with respect to the earlier matters by way of allegations of sexual assault.
15 Notwithstanding the care with which the trial judge will be required to deal with these evidentiary matters, I am not presently persuaded that in the interests of justice a separate trial is necessary. If it happens that difficulties, which cannot presently be foreseen, arise and adequate directions cannot or are not given, the applicant of course would be able to bring the matter before this Court to seek appropriate orders. The conduct of the trial will not to my mind have any inevitable consequence leading to injustice to the applicant.
16 In the matter of Saunders, (1994) 72 A Crim R 347, this Court had occasion to consider an application for leave to appeal in relation to a question of whether or not there should be a separate trial. In that case the applicant had the benefit of a certificate from the trial judge. In the present case the trial judge has declined to grant a certificate.
17 Nevertheless, in entertaining the application in Saunders, Smart AJ with whom the Chief Justice and Studdert J agreed, was careful to point out the fact that this Court would look carefully at any application for leave.
18 His Honour said at 356:
- “It should not be thought that this judgment provides the slightest encouragement for applications for leave to appeal against judgments given in trial counts on applications for separate trials. This case raised some important points of practice which had not previously been decided directly and the judge gave a certificate”.
19 The case before us this morning does not raise any important points of practice and to my mind is a case which in many respects has similarities with many cases where a series of charges are brought against an accused in relation to his actions, sexual or otherwise, towards another person.
20 As I have already said, although in such cases the trial judge is required to exercise great care before admitting any particular evidence and also exercise care in giving appropriate directions, I am not presently persuaded that in the present case those tasks may not be adequately attended to.
21 In my opinion the application for leave should be refused.
22 JAMES J: I agree with the judgment of the Chief Judge and with the order proposed by his Honour.
23 HALL J: I also agree with the Chief Judge and the order proposed by him.
24 McCLELLAN CJ at CL: Accordingly the application for leave is refused.
04/06/2007 - complainant named - Paragraph(s) 2, 6, 8
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