R v De Rooy
[2002] WASC 1
•4 JANUARY 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: R -v- DE ROOY [2002] WASC 1
CORAM: ANDERSON J
HEARD: 10 DECEMBER 2001
DELIVERED : 4 JANUARY 2002
FILE NO/S: INS 107 of 2001
BETWEEN: THE QUEEN
AND
SHANE WILLIAM DE ROOY
Catchwords:
Criminal law - Separate trials - Principles
Legislation:
Criminal Code, s 585
Result:
Application refused
Category: B
Representation:
Counsel:
Crown: Mr D Dempster
Accused: Mr P J M Sullivan
Solicitors:
Crown: State Director of Public Prosecutions
Accused: Paul Sullivan
Case(s) referred to in judgment(s):
Barnes & Anor v The Queen [2001] WASCA 86
Case(s) also cited:
BRS v The Queen (1997) 191 CLR 275
Collard v The Queen [2000] WASCA 417
De Jesus v The Queen (1986) 68 ALR 1
Hoch v The Queen (1988) 165 CLR 292
Roser v The Queen [2001] WASCA 190
Sutton v The Queen (1984) 152 CLR 528
ANDERSON J: The indictment in this matter is dated 10 December 2001 and it charges that:
"(1)On 13 January 2001 at Bedford SHANE WILLIAM DE ROOY stole from MICHELLE CHRISTINE KISSACK with threats of actual violence $196.95 in money, the property of GILLIAN HILL trading as MOVIES 4 U BEDFORD WA.
(2)AND FURTHER THAT on 18 January 2001 at Inglewood SHANE WILLIAM DE ROOY stole from BENJAMIN KJELLGREN with threats of actual violence $432.00 in money and two packets of cigarettes, the property of DAVID JOHN FROST and CHRISTINE JOHN BEVERIDGE trading as EZY PLUS INGLEWOOD.
(3)AND FURTHER THAT on 28 January 2001 at Bedford SHANE WILLIAM DE ROOY stole from PAUL ANTHONY PICOT with threats of actual violence $176.00 in money, the property of GILLIAN HILL trading as MOVIES 4 U BEDFORD WA
AND THAT at the time SHANE WILLIAM DE ROOY was armed with an offensive weapon, namely a knife
(4)AND FURTHER THAT on 4 February 2001 at Noranda SHANE WILLIAM DE ROOY stole from GIULIAN ANDREW TAVELLI with threats of actual violence $800.00 in money, the property of EMERALD LAKE PTY LTD trading as VIDEO EZY NORANDA
AND THAT at the time SHANE WILLIAM DE ROOY was in company with another."
The accused has not been arraigned on this indictment. The matter came before me on 10 December in the form of a directions hearing in which counsel for the accused made an oral application "that there should be separate indictments on these counts … ".
By this, I take the application to be a motion to quash the indictment on the ground that it contains more than one charge, contrary to the first part of s 585 of the Criminal Code; and that the proviso to s 585 does not apply.
Section 585 is in the following terms:
"Except as hereinafter stated, an indictment must charge one offence only, and not 2 or more offences:
Provided that when several distinct indictable offences form or are a part of a series of offences of the same or a similar character … charges of such distinct offences may be joined in the same indictment against the same person.
…
But, if in any such case it appears to the court that the accused person is likely to be prejudiced by such joinder, the court may require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately."
Although he did not actually say so, I will take it that counsel for the accused applies for an order for separate trials of each count in the indictment if I conclude that the four offences are properly joined in the one indictment.
Whether the four offences are properly joined in the one indictment depends on whether the four offences "form or are a part of a series of offences of the same or a similar character". This subject was recently discussed in Barnes & Anor v The Queen [2001] WASCA 86 in the judgment of Parker J at pars 8 to 15. What is required is a sufficient nexus between the offences to make them a series of offences of a similar character in the ordinary sense of those words. The facts to be taken into account are the facts alleged by the Crown and it is immaterial whether those facts are disputed by the defence.
The Crown case with respect to each of the four offences reveals a sufficient nexus, in my opinion. Each of these robberies was of a small retail outlet (three video shops and a food store). In each case, the till was robbed. In each case, the offender went into the shop, went directly to or behind the counter and demanded that the till be opened, using similar words of command. The retail outlets were near each other in the adjacent suburbs of Noranda, Inglewood and Bedford. The robberies occurred in the time span of a few days.
My ruling is that the counts were properly joined.
The next question is whether, in the exercise of discretion and to avoid undue prejudice, there should be separate trials of some or all of the counts on the indictment. I am not persuaded that there will be any prejudice to the accused which cannot be overcome by appropriate directions to the jury. The main point of concern on the part of the accused is that the identification evidence is stronger in some cases than in others and there will be a prejudicial carry‑over effect. I am not persuaded that this is so, but, anyway, proper directions to the jury will obviate any risk of prejudice.
I decline to order separate trials.
0