R v Elgueta No. Sccrm-98-171 Judgment No. S6961

[1998] SASC 6961

R V ELGUETA

[1998] SASC 6961

Court of Criminal Appeal:  Cox, Prior and Olsson JJ

1 COX J.    This applicant was tried in the District Court on an information that charged him and his brother with robbery, larceny of a motor vehicle and armed robbery, and also charged the applicant alone with another offence of armed robbery.  He was convicted on all counts.  He applied for leave to appeal to this court against his conviction on three grounds.  The single judge gave him leave on grounds 2 and 3 but refused leave on ground 1.  He thereupon took his application with respect to ground 1 to the Full Court, and the matter has been considered in private, in accordance with the rules of court, by a court consisting of Prior J, Olsson J and me. 
2 Ground 1 of the notice to appeal complains of the learned trial judge's rejection of a defence application before trial to sever the counts and direct that the applicant be tried separately on each count. 
3 The trial judge appears to have refused the defence application on similar facts grounds. It is doubtful whether that was a valid ground for his ruling. However, there was fingerprint evidence linking three of the alleged offences and the judge was entitled, as indeed the prosecution submitted to him, to refuse the application in reliance on the decision in Mayfield 63 SASR 576. Although severance is a matter for a trial judge's discretion, in our opinion the trial judge here, had he categorized the case correctly, could not reasonably have made a severance order.
4 Leave to appeal on ground 1 is refused for the reason that an argument that the trial judge may have come to the wrong decision, whatever his reasons might have been, could not possibly succeed. 
5 We direct that the applicant be supplied with a copy of this transcript.