R v Courtney, Lomas and Duggan
[1998] TASSC 127
•15 October 1998
127/1998
PARTIES: R
v
COURTNEY, Gary William
LOMAS, Jeffrey Joseph
DUGGAN, John Frederick
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: C177/1998
DELIVERED: 15 October 1998
HEARING DATE/S: 12, 13 October 1998
JUDGMENT OF: Underwood J
CATCHWORDS:
Criminal Law - Jurisdiction practice and procedure - Information, indictment or presentment - Joinder - Joint or separate trials - Generally - Discretion of trial judge to make orders - Factors relevant to the exercise of the discretion.
Criminal Code 1924 (Tas), s363.
Leaman v R 9/1987; R v Darby (1981 - 1982) 148 CLR 668, applied.
Aust Dig Criminal Law [725]
REPRESENTATION:
Counsel:
Crown: D J Coates and M P Bugg
Accused Courtney: J W Avery
Accused Lomas: W M Hodgman QC and G D Meyer
Accused Duggan: K B Procter
Solicitors:
Crown: Director of Public Prosecutions
Accused Courtney: Avery Keal
Accused Lomas: Milton & Meyer
Accused Duggan: Murdoch Clarke
Judgment category classification:
Court Computer Code:
Judgment ID Number: 127/1998
Number of pages: 6
Serial No 127/1998
File No C177/1998
THE QUEEN v GARY WILLIAM COURTNEY,
JEFFREY JOSEPH LOMAS AND JOHN FREDERICK DUGGAN
REASONS FOR JUDGMENT UNDERWOOD J
15 October 1998
Introduction
Gary William Courtney ("Courtney"), Jeffrey Joseph Lomas ("Lomas") and John Frederick Duggan ("Duggan") have pleaded not guilty to the murder of Leo John Rogers at Glenorchy on 6 May 1995. Lomas and Duggan have made an application before the jury has been empanelled (Criminal Code, s361A) for an order that they be tried separately from Courtney.
The Crown case against each accused is that he either:
struck the fatal blow or blows with the requisite guilty state of mind;
aided and/or abetted the others, or one of the others, to commit the crime charged; or
formed a common intention with the others, or one of the others, to prosecute an unlawful purpose and the murder was a probable consequence of such prosecution.
There will be forensic evidence from which the jury might conclude that the deceased was stabbed sixty-six times with two weapons. The deceased was related to Courtney. The Crown case is that between about 7.30pm and 10.50pm on 6 May 1995, the three accused went to the home of the deceased and there each committed the crime charged in one of the three ways set out above. The Crown case is that Courtney's young son was the victim of sexual abuse at the hands of one Jed Thurley and that Courtney was enraged, not only about the attack on his son, but also about paedophiles generally. The Crown contends that the evidence it proposes to lead will enable the jury to conclude that on the evening of 6 May 1995, Courtney was with the other two accused and that all three were affected by drugs that they had consumed that evening. The Crown further contends that the jury could conclude that Courtney believed that the deceased was a paedophile and, in an intoxicated rage, the three accused went to the deceased's home and murdered him. The evidence against each accused is almost entirely circumstantial.
The estimated length of trial is eight weeks. The Crown proposes to call over 100 witnesses. Counsel for Lomas and Duggan have each submitted that if certain evidence, admissible only on the trial of Courtney, is led on a joint trial, there will be a miscarriage of justice.
The law
The Code, s363, confers a discretionary power without statutory fetter in the following terms:
"363 — When 2 or more persons are charged in the same indictment, whether with the same crime or with different crimes, the judge may at any time during the trial, on the application of any of the accused persons, direct that the trial of any of them shall be had separately from the trial of the other or others of them, and for that purpose may, if a jury has been sworn, discharge such jury from giving a verdict as to any accused person in respect of whom such direction is made."
The proper exercise of this power was considered by the Court of Criminal Appeal (Tas) in Leaman v R 9/1987. Although the Court was divided on the outcome of the appeal, there was unanimity with respect to the principles applicable to the proper exercise of the discretion conferred by s363. Those principles are:
Prima facie, where the Crown case is that accused persons were engaged in a joint or common enterprise, there should be a joint trial. The rationale for this principle and the authorities that support it are set out in the judgments in Leaman. There is no need to repeat them here.
The prima facie rule is subject to the proviso that no accused person should be thereby deprived of his right to a fair trial.
In this case, as in most cases, injustice and the denial of a right to a fair trial are said to arise if the prima facie rule is applied because of the admission on the trial of one accused of evidence prejudicial to, but not admissible on, the trial of the other two accused. With respect to this proposition, Neasey J said in Leaman at 9:
"A basic question faced by a trial judge considering whether to order a separate trial, or an appellate court considering whether a miscarriage of justice has occurred because he did not, always is whether the prejudicial effect of the inadmissible evidence is (or was) capable of being adequately neutralised by appropriate instructions to the jury. That question will usually involve two further issues, namely:
(1)will an average jury be reasonably capable, as an intellectual exercise, of performing the task thus given them?
and
(2)is the prejudice likely to be so great in the circumstances that it would not be reasonable to expect the jury to leave the prejudicial evidence out of account against a particular accused even though it is inadmissible against him?"
That statement is consistent with the judgment of the High Court in R v Darby (1981 - 1982) 148 CLR 668.
Whether or not a joint trial will deprive a co-accused of a fair trial will depend upon the circumstances of each case. R v Piller & Ors, Supreme Court of New South Wales, unreported 6 June 1995, was a case pressed upon me on behalf the applicants upon the basis that I should apply the outcome of that case to this application as a matter of principle. However, in my view, Piller is no more than one illustration of the application of the principles expressed by the Court of Criminal Appeal in Leaman.
The material relied upon
In support of the application made on behalf of Lomas, Mr Hodgman QC identified over 110 passages in the six interviews the police had with Courtney and submitted that those passages will not be admissible on the trial of his client and that their admission on the trial against Courtney will be so prejudicial to his client, that the latter will thereby be denied a fair trial, regardless of the directions in law that might be given the jury. On behalf of Duggan, Mr Procter made the same submission. He relied upon the passages identified by Mr Hodgman and upon fourteen other passages in the interviews the police conducted with Courtney. In addition, Mr Procter relied upon statements in the proofs of evidence of four Crown witnesses.
All of the material relied upon comprised statements made by Courtney out of court and not on oath with respect to the words and/or actions of the co-accused. Although not ruling upon the admissibility of this evidence on the trial of Lomas and Duggan, as Mr Coates, senior counsel for the Crown, wished to be heard further about that, I will assume for the purposes of this ruling that all the evidence identified on behalf of the applicants is admissible on the trial of Courtney, but not admissible on the trials of Lomas and Duggan.
This evidence falls into several categories, but none of it directly asserts that either Lomas or Duggan committed the crime charged.
Firstly, there was evidence of what might be described as the general bad character of Lomas and Duggan. Mr Coates stated that the Crown did not seek to adduce this evidence and during the course of his submissions, some thirty passages of such evidence were identified and will be excised from the interviews between the police and Courtney.
Several passages in Courtney's interviews allege that Lomas and Duggan frequently smoked cannabis and did so on the night of the murder. However, the prejudicial value of this evidence against the applicants is negligible for there is evidence admissible on the trials of Lomas and Duggan that each consumed cannabis with Courtney on the evening of the murder. With respect to the suggestion that inadmissible evidence that Lomas and Duggan smoked cannabis at other times is prejudicial because a jury might infer therefrom that they were likely to commit murder, I can only observe that it is time to abandon trials by jury if that is the case.
In his interview on 16 November 1995, Courtney said to the police that after the death of the deceased, Duggan said to him that he was not going to do fifteen years for what Lomas had done. The apparently prejudicial value of this evidence is virtually non-existent, as the Crown proposed to adduce evidence from a witness who will say that she heard Duggan say to Lomas, "You better [sic] get in touch with the police. I'm not doing a 15 year lag for you". This evidence is admissible on the trial of both applicants. Further, in an interview with police on 1 November 1997, Duggan admitted in substance, that he had so spoken to Lomas in the presence of the Crown witness.
The forensic evidence is such that the jury could conclude that some of the fatal blows were struck with a small pair of scissors. In Courtney's interviews with police on 16 November 1995 and 1 November 1997, Courtney makes statements to the effect that Lomas usually carried a small pair of fold-up scissors. Again, the prejudicial effect of this evidence on the trial of Lomas is negligible because the Crown will adduce evidence from four witnesses to the effect that Lomas habitually carried a small pair of fold-up scissors.
In his interviews of 19 May 1997 and 1 November 1997, Courtney makes reference to Lomas and Duggan committing a burglary on the night of the murder. Ultimately he admitted that it was he, Lomas and Duggan who committed a burglary at the house next to the house in which he was then living. A video recorder was stolen. Courtney told police, in effect, that the video was used to buy the cannabis that was smoked by the three accused that night. Once again, there will be evidence to the like effect from other witnesses that is admissible on the trials of Lomas and Duggan so the prejudicial value of the inadmissible evidence will be negligible.
In the last four of his interviews, Courtney made many statements from which it might be inferred that he was alleging that Lomas and Duggan killed the deceased. These statements do not assert that Lomas and Duggan in fact killed the deceased, nor do they provide any details of the killing, but "hint" at facts from which a listener or reader might infer that Lomas and Duggan had killed the deceased.
It is necessary to interpolate here that the Crown case is that much of what Courtney told the police was false. The Crown case is that after the murder, the three accused got together and concocted a false story. Stated shortly, Courtney told the police that he was with the other two on the night of the murder. That appears to be common ground. Courtney told the police that the video was stolen to enable the three accused to acquire cannabis. This was done, and the three smoked it. Courtney told police that afterwards he took Lomas and Duggan to Duggan's house where the former was going to stay the night with the latter. Courtney said that he dropped Lomas and Duggan off about 11pm and returned home. If this account is true, none of the accused could have committed the murder, because the deceased was discovered by his wife at about 10.40pm.
However, in his interviews, Courtney makes several suggestions to the effect that next morning he learnt that after he had dropped Lomas and Duggan off at Duggan's home, the two of them had a fight and that Lomas took some more drugs and left. Courtney also told the police, in effect, that he had heard that one Clinton Smith took Lomas' clothes and burnt them at the tip, along with his fold-up scissors. However, the Crown will adduce evidence tending to prove that Courtney's account of all this is false. There will be evidence that there was no fight between Lomas and Duggan that night. Clinton Smith will admit to giving Lomas some assistance (he has been charged with being an accessory after the fact to murder) but he will not say that the scissors and clothes were destroyed on the tip.
So this is not a case where the inadmissible prejudicial evidence is of facts upon which the Crown relies. Its relevance on the trial against Courtney is said (inter alia) to be lies told in consciousness of guilt, in order to exculpate himself. Thus, the other Crown evidence will operate to negate any prejudicial effect to Lomas and Duggan of the out of court statements made by Courtney.
I turn now to the passages in the four Crown witnesses' statements relied upon by Mr Procter to support his submission. The witness Sharon Upton will say that Courtney told her that on the night of the murder he had dropped Lomas and Duggan off "up the road from the old bloke's place" and had then gone straight home. This is a slight variation on the accounts he gave to the police but, as is the case with respect to those accounts, the Crown case is that this must be a lie because the deceased was killed before about 10.40pm.
The proof of evidence of the witness Toni Patmore is, in part, to the effect that Courtney said to her that "two dudes" had been up at his house on Saturday night and that they were "going to bash heads and kick arse". There is other evidence which, if the jury accepts it, would be likely to lead them to conclude that the "two dudes" were Lomas and Duggan. The same proof of evidence states that Courtney told Toni Patmore that the "two dudes" were "real bad people". One accused assigning blame to another accused is not only a common feature of joint trials; it is one of the reasons for not ordering separate trials. With respect to these two witnesses, I am confident that an appropriate direction to the jury will cure any risk of prejudice.
The proof of evidence of Shane Rogers, a son of the deceased, states that Courtney told him that he had got Lomas and Duggan to "trash the home of the bloke that molested his son". The proof goes on to state that on the same occasion, Courtney also mentioned that Lomas and Duggan had been at his house on the night the deceased was murdered and "that they were capable of doing something like that and that he had dropped them off in the area that night". With respect to that evidence, I make the same observation as I have just made with respect to the proof of evidence of Toni Patmore.
Finally, Mr Procter relied on the proof of evidence of Glen Courtney which states that the accused Courtney told him (Glen Courtney) that he was with Lomas and Duggan on the night of the murder and that they had been consuming drugs. The proof of evidence adds that Courtney said that Duggan had been taking Rohypnol. I pause to observe that in an interview with police, Duggan admitted that he had been taking Rohypnol that day. The proof of evidence goes on to the effect that the accused Courtney told him early on the morning after the murder, he (the accused Courtney) went to Duggan's house and knocked on the door. The proof continues that the accused Courtney said that Duggan came to the door with no shirt on and told him that he had a fight the night before with Lomas and got blood all over it and that it was in the wash.
With respect to this evidence, its prejudicial value is negated for the reasons that I have already expressed concerning Courtney's similar account given in an interview with police. Further, in any event, any remaining prejudice will be negated by an appropriate direction.
Application of the facts to the law
This case is quite unlike Leaman. In that case, the prejudice arose principally out of the fact that the appellant's wife gave, by way of an unsworn statement, a graphic, first hand, detailed account of how the appellant murdered his first wife. It was the only direct account of the critical events. It was a chilling account. The appellant's wife read it out herself. She had been observed by the jury for two weeks prior to reading it. Once, during the appellant's cross-examination, she called out from the dock that he was "a bloody liar". Had the appellant's wife not been allowed to make an unsworn statement, as is the case today, it is likely that the appeal would have been dismissed. The degree of prejudice in Leaman bears no resemblance to the degree of prejudice in this case.
This case is also quite unlike Piller. In that case, the out of court statements of three of the four accused recorded on video tape, make detailed, and at times conflicting, statements implicating the other accused. One of the accused declined to answer incriminating questions. The picture was further complicated by the evidence of one of the accused given on the voir dire, resiling from certain statements he had made on the video recorded interview. At 9 of his reasons for judgment (Butterworths Unreported Judgments) Dowd J referred to a passage in the judgment of Hunt J in R v Middis, delivered on 27 March 1991, which apparently was approved by the Court of Criminal Appeal (NSW) in R v Baartman unreported 6 October 1994, viz:
"Briefly, the relevant principles are that:
1 Where the evidence against an applicant for separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and 2 where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and 3 where there is a real risk that the weaker Crown case against the applicant will [appear to] be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must shown that positive injustice would be caused to him in a joint trial." [my insertion]
It will be noted that all three points are linked with a conjunction. In a case where all three points are evident and thereby a joint trial will cause an injustice, obviously the proper exercise of the discretion is to order separate trials. On behalf of the applicants, it was submitted that Middis, Baartman and Piller were all authority for the proposition that separate trials should be ordered where the evidence against an applicant for a separate trial is significantly weaker than, and different to, that admissible against another. I do not read the unreported judgment of Dowd J as asserting that proposition, nor do the authorities to which he referred assert it. That the evidence against an applicant for a separate trial is significantly weaker and different to that admissible against a joint accused is just one of the relevant matters to be taken into account on a proper consideration of the general proposition that joint accused should be tried together unless thereby one or more will be denied a fair trial. I accept that in the present matter the Crown case against Courtney is stronger than it is against Lomas and Duggan, but neither that fact alone, nor that fact in conjunction with the matters referred to earlier in these reasons for judgment, persuades me that either of the applicants will be denied a fair trial if they are tried jointly with Courtney.
R v Darby (supra) was a conspiracy case. The respondents were tried jointly. Both were convicted. The conviction of one was subsequently quashed on appeal. Darby then appealed on the ground that the quashing of the conviction of his co-accused meant that his conviction should also be quashed. The Court of Criminal Appeal (Vic) accepted that proposition and quashed the respondent's conviction. The High Court overturned the Court of Criminal Appeal decision and reaffirmed Darby's conviction, thereby differing from UK authority. In the course of determining the issue before them, the majority observed that their view would require a trial judge to direct a jury in a conspiracy case involving only two persons, that they could acquit one and convict the other, as their deliberations had to be confined to the evidence admissible against each. This was described as an "incongruity". I pause to observe that a like incongruity was common place in the matrimonial law prior to the introduction of the Family Law Act 1973, for pursuant to the relevant statutory provisions, its findings were often made that a respondent had committed adultery with a corespondent, but that the corespondent had not committed adultery with the respondent! With respect to the direction a trial judge would have to give in a conspiracy trial involving only two persons, the majority went on to observe:
"Such a direction might well result in injustice to one accused. In a case where the evidence against A is overwhelming, a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act on a reasonable doubt on the evidence admissible against B."
The majority then referred to a Canadian authority and said that the practice in Canada of requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other, is to be encouraged. All of this was said in the context of a conspiracy case involving two accused. The rationale for the observations is, of course, that a joint trial may well result in the accused against whom the Crown has the weaker case not receiving a fair trial. In the present matter, although it is true the Crown will argue as an alternative path to conviction that the murder of the deceased was the consequence of the prosecution of an unlawful purpose, the circumstances in this case bear no resemblance to the circumstances which caused the High Court to make the obiter dicta observations in Darby.
Conclusion
On the basis of the material to which I was referred and the submissions made in connection with it, I am not at this stage persuaded that the discretion should be exercised in favour of the applicants. The application is dismissed.
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