R v Forrest - [2005] SASC 41

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v FORREST
Reasons for Ruling of The Honourable Justice Besanko
11 February 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS - BY STATUTE
Accused charged with one count of robbery in company and one count of threatening an injury or detriment to a witness - application by accused for severance of the two counts - whether the two charges are founded on the same facts - where the two charges have a common factual origin in that the second charge could not have been alleged but for the facts which give rise to the first charge - whether the two charges form or are part of a series of offences of the same or similar character - whether joinder of the two counts may prejudice the accused - application refused.
Criminal Law Consolidation Act 1935 ss 158(b), 248(1)(b), 278, referred to.
R v Barrell (1979) 69 Cr App R 250, applied.
Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 61 ALJR 1; R v Jacobs (1988) 143 LSJS 14; R v Garrett (1988) 50 SASR 392, considered.

R v FORREST
[2005] SASC 41
Criminal

BESANKO J: Kym Bradley Forrest is charged on Information with two offences. The first count alleges that he committed the offence of robbery in company on 20^th January 2003 contrary to s 158(b) of the Criminal Law Consolidation Act 1935 (“CLCA”), and the second count alleges that he committed the offence of threatening an injury or detriment to a witness on 26^th November 2004 contrary to s 248(1)(b) of the CLCA. By application issued pursuant to r 9 of the Supreme Court Criminal Rules 1992 the accused applies for an order severing the two counts on the ground that they have not been properly joined in the same Information (s 278(1) of the CLCA) or, in the alternative, an order that the two counts be tried separately (s 278(2) of the CLCA).
The prosecution case and the previous trial
The prosecution case is that the accused in company with Adam Paul Knibbs approached two men at Woodville in the State of South Australia on 20^th January 2003. The two men were Doogal Fleetwood Hannagan and Matthew Phillip Brady. The prosecution case is that the accused assaulted both men and Knibbs assaulted Brady. The prosecution case is that as part of a joint enterprise, the accused took the sum of $10.00 from Hannagan, and Knibbs took the sum of $2.00 and goods (cigarettes and a mobile telephone) from Brady.
The prosecution case is that on or about 26^th November 2004 the accused sent a letter to Hannagan from the Mobilong prison. The prosecution case is that the letter contains a threat to cause or procure an injury or detriment to Hannagan, a witness in judicial proceedings, with the intention of inducing Hannagan to act in a way that might influence the outcome of those judicial proceedings. The letter and envelope were tendered on the hearing of the accused’s application. The prosecution case is that the letter states that Hannagan should give evidence that the accused knew nothing of, and was not involved in, the taking of money or goods from Hannagan or Brady.
In June 2003 the accused and Knibbs were jointly charged on Information with two counts of robbery in company, the first count relating to the money allegedly taken from Hannagan and the second count relating to the money and goods allegedly taken from Brady. Knibbs pleaded guilty to both charges. The accused pleaded not guilty to both charges and in January 2004 the charges against the accused were heard by a Judge and jury in the District Court. The jury found the accused guilty of the second charge (ie., the money and goods in the possession of Brady) but could not reach a verdict on the first charge (ie., the money in the possession of Hannagan) and was discharged by the Judge.
The re-trial of the first charge was listed for hearing before me with a jury to commence on 11^th January 2005. On 5^th January 2005, the Director of Public Prosecutions (“DPP”) filed a fresh Information containing the first charge and introducing the second charge of threatening an injury or detriment to a witness on 26^th November 2004.
The ruling and the rival contentions
After hearing submissions, I ruled that the two charges were properly joined in the same Information within the terms of s 278(1) of the CLCA and I declined to exercise the power in s 278(2) of the CLCA to order separate trials of the two charges. I said that I would deliver my reasons for those rulings in due course and these are my reasons.
The accused submitted that joinder of counts 1 and 2 is not within the terms of s 278(1) because the charges are not founded on the same facts, and do not form, and are not part of, a series of offences of the same or a similar character. The accused submitted that the two offences are different in nature, and that they occurred at different times and in different locations. In the alternative, the accused submitted that, notwithstanding the propriety of joinder pursuant to s 278(1), I should sever the two counts in the exercise my discretion pursuant to s 278(2). The accused submitted that the evidence on one count is not admissible on the other and that prejudice to the accused will result from the joint trial of the two charges. The accused referred to a number of authorities including Sutton v The Queen (1984) 152 CLR 528 and De Jesus v The Queen (1986) 61 ALJR 1.
Counsel for the Director submitted that the two charges are founded on the same facts and that joinder was authorised by s 278(1) of the CLCA. To support her contention she referred to the decision in R v Barrell (1979) 69 Cr App R 250. As far as the discretion in s 278(2) is concerned, the Director submitted that this was not a case in which separate trials are appropriate. She said that the evidence on count 1 is relevant and admissible on count 2 because it must be shown that the evidence that the author of the letter was telling Hannagan to give is false. The evidence that the accused wrote the letter on or about 26^th November 2004 (ie., evidence relevant to count 2) is relevant and admissible on count 1 because it contains an admission that the accused was at the scene of, and had some involvement in, the events of 20^th January 2003. The Director did not assert that the evidence on count 2 was relevant and admissible for any purpose in relation to count 1 other than the purpose which I have just identified.
The reasons for my ruling
Section 278 of the CLCA relevantly provides:
“(1)Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2)Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.”
The propriety of the joinder
Joinder is authorised under s 278(1) of the CLCA if the charges are either founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.
In R v Barrell (supra) the English Court of Appeal examined r 9 of the Indictment Rules 1971, which was in similar terms to s 278(1) of the CLCA. The facts were not dissimilar to those in the present case in that there were alleged offences involving affray and assault occasioning actual bodily harm, followed about two months later by an attempt to cause a witness to change his evidence about the assault. The accused argued that a charge of attempting to pervert the course of justice should not have been included in the Indictment containing the charges relating to the affray and assault occasioning actual bodily harm.
The Court of Appeal rejected the argument and held that the three counts were properly joined in the one indictment because they were “founded on the same facts”. The Court (Shaw LJ and Boreham and Purchas JJ) said (at 252-253):
“The phrase ‘founded on the same facts’ does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin. If the charge described by counsel as the subsidiary charge is one that could not have been alleged but for the facts which give rise to what he called the primary charge, then it is true to say…that those charges are founded, that is to say have their origin, in the same facts and can legitimately be joined in the same indictment.”
In my opinion, the same reasoning can and should be applied in this case. The two charges have a common factual origin in that the second charge could not have been alleged but for the facts which give rise to the first charge. In my view, the two charges are founded on the same facts and joinder is authorised by s 278(1) of the CLCA.
I have also considered whether the two charges form a series of offences of a similar character so that joinder is authorised under the other limb in s 278(1). In R v Garrett (1988) 50 SASR 392, the Full Court held that three charges of rape, two counts of false imprisonment and two counts of assault were properly joined in one information pursuant to s 278(1) as they formed “a series of offences of the same or a similar character”. The last of the three counts of rape was alleged to have occurred about three weeks before the two counts of false imprisonment and two counts of assault, all of which were alleged to have occurred on the same day. It was argued that although the three counts of rape and one count of false imprisonment and one count of assault involved the same victim, the rape charges should not have been joined in the same information as the other charges. The Full Court rejected that argument. King CJ said that in applying s 278(1), “it is necessary to determine whether there is sufficient nexus between the offences alleged in the information to justify the application to them of the description contained in the section”. A sufficient nexus may be found not only having regard to the legal elements of the offences in question, but also having regard to the facts which constitute the offences and the circumstances in which and the relationships out of which they arose (at 401). Although false imprisonment and assault would not ordinarily be considered offences of a similar character to rape, King CJ said that each offence involved an element of personal domination of the victim by the appellant. This common factual characteristic meant that the offences could be regarded as a series of offences of the same or similar character.
King CJ also identified the question of whether evidence was cross- admissible as a relevant consideration. He said “the admissibility of evidence of one offence on the trial of the other is regarded as an important factor in determining whether alleged offences are part of a series of the same or similar character” (at 401). The cross-admissibility of evidence on counts 1 and 2 is also relevant to the exercise of the discretion in s 278(2) (Sutton v The Queen (supra); De Jesus v R (supra)), which I consider below.
I turn now to apply the principles stated by King CJ in R v Garrett (supra) to the facts of this case. Ordinarily, the offence of robbery in company would not be regarded as an offence of a similar character to the offence of threatening an injury or detriment to a witness. However, I think that both offences share at least this common factual characteristic namely, both offences involve the use of intimidation and the threat of violence by the accused against Hannagan. Although it is strictly unnecessary for me to decide the point of view of my earlier conclusion, this common factual thread may well mean that counts 1 and 2 can be described as a series of offences of a similar character within the terms of s 278(1). As far as cross-admissibility is concerned, having regard to the material and submissions put to date I agree with the Director that the evidence in relation to count 1 is admissible in relation to count 2 to establish that the account of the incident of 20^th January 2003, which the accused was allegedly directing Hannagan to give, was false. The letter sent on or about 26^th November 2004, which is evidence in relation to count 2, is, I think, admissible on count 1 for the limited purpose identified by the Director in the course of her submissions, namely, to establish that the accused was at the scene of, and had some involvement in, the events of 20^th January 2003. It may be that there is no dispute about that or that it is clearly established by other evidence, but that does not mean that for that purpose the letter is not relevant and admissible in relation to count 1.
It seems to me that joinder of the two counts is authorised by s 278(1) of the CLCA because they are founded on the same facts, and in the circumstances it may well be that the two offences form a series of offences of a similar character.
I reject the accused’s submission that the joinder of the two counts is not authorised by s 278(1) of the CLCA.
Severance pursuant to s 278(2)
I turn now to the question of severance in the exercise of my discretion under s 278(2). I do not accept the accused’s submission that the joint trial of counts 1 and 2 would prejudice or embarrass the accused in the relevant sense so that it is desirable to order separate trials.
In De Jesus v The Queen (supra), Gibbs CJ referred to the following passage from the judgment of Brennan J (as he then was) in Sutton v The Queen (supra) at 541-542:
“When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury’s mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.”
In De Jesus v The Queen (supra), the High Court considered the joinder of charges of sexual offences where the evidence in support of one charge was not admissible in support of another charge. A majority of the Court decided that the appeal should be allowed because the trial Judge should have exercised his discretion to order separate trials. This case is different because, having regard to the circumstances as they presently are, the evidence on count 1 will be admissible on count 2, and, albeit for a more limited purpose, part of the evidence on count 2 will be admissible on count 1.
I accept that there is no requirement that the accused show a special feature before I exercise my discretion in favour of ordering separate trials. The matters which I must consider are those identified by King CJ in The Queen v Jacobs (1988) 143 LSJS 14 at 24 as follows:
“The section confers on the trial judge a discretion to sever the counts and to direct separate trials. This discretion is to be exercised having regard to all relevant factors. Amongst those factors would be the degree of prejudice likely to arise from the existence of the allegations in the various counts and the evidence in support of them being before the jury, the extent to which any such prejudice might be removed by an appropriate direction and the cost and inconvenience involved in separate trials.”
In this case, I think the cross-admissibility of evidence, the fact that an appropriate direction can be given to the jury about the limited use they may make of the evidence on count 2 for the purpose of determining the guilt of the accused on count 1 and the cost and inconvenience of separate trials support the conclusion that the power to order separate trials should not be exercised. In other words, I am not satisfied that in the circumstances it is desirable to direct separate trials of the two counts.
I reject the accused’s submission that I should exercise my discretion under s 278(2) of the CLCA to order separate trials of the two counts.
Conclusion
It was for these reasons that I made the ruling which I did.