R v Crowther-Wilkinson and Cowie
[2002] NSWSC 1207
•17 December 2002
CITATION: R v Crowther-Wilkinson & Cowie [2002] NSWSC 1207 FILE NUMBER(S): SC 70096/01; 70033/02 HEARING DATE(S): 01/11/02 JUDGMENT DATE: 17 December 2002 PARTIES :
Regina
Simon Crowther-Wilkinson
James CowieJUDGMENT OF: Hidden J at 1
COUNSEL : T Hoyle - Crown
P Byrne SC - Crowther-Wilkinson
B Rigg - CowieSOLICITORS: SE O'Connor - Crown
David Giddy & Associates - Crowther-Wilkinson
Watsons - CowieCATCHWORDS: CRIMINAL LAW: joint trial of two accused - application by one for separate trial - whether prejudice from nature of evidence against other accused and ability of other accused to raise character. CASES CITED: R v Domincan & Thurgar (1989) 43 A Crim R 24
R v Middis (SC 27.3.91 unreported)
R v Georgiou [1999] NSW CCA 125
Webb and Hay v The Queen (1993-4) 181 CLR 41DECISION: Application refused.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONHIDDEN J
Tuesday, 17 December, 2002
JUDGMENT70096/01 – REGINA v Simon CROWTHER-WILKINSON
70033/02 – REGINA v James COWIE
1 HIS HONOUR: Simon Crowther-Wilkinson (to whom I shall refer simply as Mr Wilkinson) and James Cowie are jointly charged with murder. The deceased and Mr Wilkinson were partners in a business known as Excell Security, and Mr Cowie was an employee of the business. It is the Crown case that the deceased was shot on the night of 6 June, 2000 or in the early hours of the following morning, and his body was weighed down with chains and deposited into the Hawkesbury River in the Brooklyn area. The Crown alleges that both accused were involved in the killing, the case against each of them being entirely circumstantial.
2 In outline, the Crown case is as follows:
(a) Wilkinson and Cowie were close associates and, as I have said, Cowie was employed in the business at the relevant time.
(b) The two accused had been in regular telephone contact up to and just after the disappearance of the deceased.
(c) The deceased was last seen alive a little after 7 pm on 6 June, 2000, when he attended a meeting with Wilkinson and Cowie at the business premises at Chatswood.
(d) On 12 July, 2000 the deceased was found floating in the Hawkesbury River near Brooklyn. He was dressed in the same clothes he had been wearing at the Chatswood meeting. The cause of death was a single gunshot wound, believed to be of low velocity, to the back of the head.
(e) Wilkinson had attended a course in terminal ballistics, where he was instructed about the effectiveness of shooting a person in the lower brain stem.
(f) As I have said, the body was weighed down with chains. Equipment of that kind had been purchased by Wilkinson about nine days prior to the deceased’s disappearance.
(g) The deceased was a tall man, who weighed 135 kilograms with the chains around him. It would need two people to dispose of his body.
(h) The deceased’s motor vehicle was found abandoned at Chatswood, but at a location different from that of the business premises.
(i) Cowie’s fingerprint was found on the Chatswood page of a street directory in the car.
(j) In a statement, Wilkinson said that after the meeting at Chatswood he joined the deceased for dinner at a pizzeria in Willoughby and they parted at 10 pm. The owner and an employee of the pizzeria did not recognise either the deceased or the accused being present that night.
(k) Wilkinson also stated that, after the meal with the deceased, he returned to work and checked his emails. A forensic examination shows that his emails were not checked on that occasion.
(l) Wilkinson purchased a tank of petrol at a service station at Lane Cove at 9.25 pm on 6 June, 2000. Confectionary and cigarettes, including the brand smoked by Cowie, were also purchased.
(m) Telephone records and other evidence, the detail of which I need not recite, suggest that Cowie’s mobile phone was in the Brooklyn area in the early hours of 7 June, 2000 and that Wilkinson used it to make a call.
(n) When interviewed, Wilkinson denied having been in the Brooklyn area.
(o) Wilkinson denied owning or having access to a boat. An Excell employee had observed a twelve foot aluminium boat at the business premises. Wilkinson said that he had borrowed it.
(p) According to the same employee, Wilkinson asked him after 6 June, 2000 if he knew of a dealer who could alter firearms, so that it could not be ascertained if they had been fired.
(q) The deceased had expressed concern at not receiving accurate information about the business profits. He had told a friend that he intended to confront Wilkinson on 6 June, 2000.
(r) Wilkinson was in the process of obtaining a contract to supply security staff for the Olympics. He had said that he did not intend to share this venture with the deceased.
(s) There is evidence from a witness that, after the disappearance of the deceased, Cowie said that Wilkinson owed him “big time.”
(u) There is evidence from another witness of a physical confrontation between Cowie and the deceased in 1999, creating ill-will between them.(t) Cowie’s statement to the police was exculpatory. He said that after the meeting at Chatswood he went home and surfed the internet. Police evidence would show that he did not do so.
3 The application for a separate trial is based upon the assertion that the case against Mr Cowie is weaker than that against Wilkinson and that, accordingly, he would be prejudiced by a joint trial. His counsel referred to evidence which is clearly admissible against Wilkinson only. She also pointed out that the separate trial of Mr Cowie would be quite short because, in the conduct of his case, much of the evidence would be unchallenged.
4 It may well be that the case against Mr Cowie is not as strong as that against Mr Wilkinson. Certainly, there is a body of evidence admissible only against Wilkinson, but it does not appear to me to be prejudicial to Mr Cowie in the sense that it tends to implicate him. This is not a case in which the evidence against one accused is significantly stronger than, and different from, that against the other, and where some of the evidence against the one accused is inadmissible against the other and prejudicial to him: cf R v Domican and Thurgar (1989) 43 A. Crim. R. 24.
5 The principles governing an application for a separate trial were examined by Hunt J (as he then was) in R v Middis (unreported 27 March, 1991) at pp 3-7. His Honour’s succinct statement of the relevant factors at p 3 has frequently been recited with approval: see, for example R v Georgiou [1999] NSW CCA 125. There is no need to repeat them here. The prima facie requirement that those alleged to be jointly involved in the commission of a crime should be tried together, and the reasons of public policy for it, were expressed by Toohey J in Webb and Hay v The Queen (1993-4) 181 CLR 41 at 89.
6 There is another basis for the application. It is anticipated that Mr Wilkinson will raise his character, including evidence that he has no prior convictions. Mr Cowie has convictions for offences of dishonesty. I do not know whether he would be able to raise his character in a limited way, perhaps confined to a lack of propensity for violence. However that may be, the result is that in a joint trial Mr Wilkinson would lead evidence of an absence of prior convictions but Mr Cowie would not. It is likely that the jury would draw the inference that he has a criminal record, and I find it difficult to conceive of any direction which would be effective to avert that process of reasoning.
7 I must say that I find this matter troubling. It is a problem which must arise from time to time, although I do not recall having encountered it. Neither the Crown prosecutor nor counsel for Mr Cowie was able to refer me to any authority on it. Nevertheless, it is not a matter which would persuade me to order a separate trial.
8 The application would have merit if the circumstances are such that the jury might reason that Mr Cowie has a criminal history such as to make it more likely that he is guilty of the crime charged. The jury may well assume that he has a criminal record, but they could know nothing of its nature. They would, of course, be given the usual directions about the burden and standard of proof, and about the need to avoid speculation and to decide the case only on the evidence which they have seen and heard. I do not believe that, true to their oaths and attentive to the directions which they would be given, they would reason in that impermissible way.
9 On neither of the bases argued has Mr Cowie demonstrated such prejudice as to warrant an order for a separate trial. The application is refused.
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