R v Burrows - [2001] TASSC 90

[2001] TASSC 90

CITATION: R v Burrows [2001] TASSC 90

PARTIES:  R
  v
  BURROWS, Robert Maxwell

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  33/1998
DELIVERED ON:  8 June 2001
DELIVERED AT:  Hobart
HEARING DATES:  7 June 2001
JUDGMENT OF:  Evans J

CATCHWORDS:

Criminal Law - Jurisdiction practice and procedure - Information indictment or presentment - Joinder - Joint or separate trial - Generally - Application for severance of indictment - Whether charges were part of a series of events or were of similar character.

Criminal Code 1924 (Tas), ss229(1)(b), 234, 257E, 311(2), 326(3).
Sutton v R (1984) 152 CLR 528, applied.
Aus Dig [725]

REPRESENTATION:

Counsel:
           Applicant:  C Mackie
           Respondent:  L A Mason
Solicitors:
           Applicant:  Bradfields
           Respondent:  Director of Public Prosecutions

Judgment Number: [2001] TASSC 90
Number of Paragraphs: 15

Serial No 90/2001
File No 33/1998

THE QUEEN v ROBERT MAXWELL BURROWS

REASONS FOR JUDGMENT EVANS J
8 June 2001

Application is made pursuant to the Criminal Code 1924 ("the Code"), s326(3), for severance of an indictment by which the accused is charged with 54 counts of stealing and one count of inserting false information as data.

Counsel for the accused submits that counts 46 - 55 should be severed from the indictment because:

h the inclusion of these counts in the indictment contravenes the Code, s311(2); or
hthe Court should exercise its discretion pursuant to the Code, s326(3), to exclude these counts as being prejudicial.

Pursuant to the Code, s311(2), an accused may be charged with "more than one crime … in the same indictment, if those charges arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or similar character". All the charges in the indictment relate to incidents alleged to have occurred over a period of approximately 18 months during which time the accused managed a removal storage business in Hobart. Initially the business was called "Watkins Removal & Storage". Early in 1996 control of the business passed to Claude Watkins & Son Pty Ltd and thereafter the business was conducted under the business name of "Watkins Removals & Storage - Hobart". I will refer to the business as "Watkins".

Counts 1 - 45 are charges of stealing contrary to the Code, s229(1)(b) and s234. It is alleged that the accused dishonestly converted to the use of himself or others money received for the benefit of Watkins. In summary, it is alleged that the accused misused his position as the manager of Watkins to take cash received from its customers for services, and that in order to cover his tracks the accused manipulated the raising of invoices for services provided by Watkins so that the amounts for which invoices were raised balanced the funds banked.

Count 46 is a charge of inserting false information as debtor in a computer in contravention of the Code, s257E. The basis for this count is an allegation that the accused received…

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 R v Burrows

Details

AGLC: R v Burrows [2001] TASSC 90
Case: [2001] TASSC 90
Decision Date: 8 June 2001

CaseChat Overview and Summary

In the case of R v Burrows, the defendant, Robert Maxwell Burrows, was charged with multiple counts of theft and one count of inserting false information as data. The charges stemmed from events that occurred while Burrows was managing a removal storage business in Hobart, which operated under the names "Watkins Removal & Storage" and "Watkins Removals & Storage - Hobart". The Crown applied for a severance of certain counts of the indictment, arguing that their inclusion could prejudice the defendant. The Supreme Court of Tasmania, presided over by Evans J, was tasked with determining whether the charges could be jointly tried and, if not, whether severance was appropriate under the Criminal Code 1924.

The legal issues before the court were whether the charges against Burrows were part of a series of crimes of the same or similar character, and if not, whether the court should exercise its discretion to sever the indictment to prevent prejudice to the defendant. The court examined the nature of the offences and their relationship to determine if they constituted a series of similar crimes, as permitted by section 311(2) of the Criminal Code. Additionally, the court considered whether severance was necessary under section 326(3) of the Code to avoid prejudice, even if the charges were part of a series.

Evans J held that the charges against Burrows formed part of a series of crimes of the same or similar character, as they all involved Burrows using his position to misappropriate funds and property belonging to Watkins. Although there were differences in the specifics of the charges, the common element was that Burrows exploited his employment to benefit himself. The court concluded that an appropriate direction to the jury would mitigate any risk of prejudice from evidence relevant to some but not all counts, and thus denied the application for severance. The reasoning was that much of the evidence presented would be relevant to all counts, as it aimed to establish a dishonest system or course of conduct.

The court dismissed the application to sever the indictment, allowing all charges to be tried jointly. This decision was based on the court's finding that the charges were part of a series of similar crimes and that the risk of prejudice could be adequately managed with jury directions.

Orders