R v Gardner & Coates
[2003] VSC 154
•21 May 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1520 of 2003
| THE QUEEN |
| v |
| BRIAN LINDSAY GARDNER AND MICHAEL ALBERT COATES |
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JUDGE: | SMITH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2003 | |
DATE OF RULING: | 21 May 2003 | |
CASE MAY BE CITED AS: | R v Gardner and Coates – Ruling 3 | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 154 | |
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Crime – separate trial
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams | Kay Robertson, Solicitor for Public Prosecutions |
| For Gardner | Mr J. Desmond | Legal Aid |
| For Coates | Mr P. Morrissey | Slades & Parsons |
HIS HONOUR:
Each of the accused has applied for separate trials.
It is common ground that the interests of justice ordinarily require a joint trial where persons are charged with the commission of crime and the Crown alleges that they were present at the time it was committed.[1]
[1] R. v. Demirock [1976] V. R. 244; R. V. Gibb and McKenzie [1983] 2 V. R. 155
Before considering the submissions advanced, it is relevant to note the issues that will be in contest in the trial of each accused. As to the accused Coates, he has pleaded not guilty to each of the charges and will go to trial not conceding any elements. Critically, however, he denies any involvement and, accordingly, his defence will focus on that issue. As to the accused Gardner, he does not deny that he was involved in the theft of the two getaway cars or the armed robbery. He, however , denies that he was involved directly in any shooting and says that it was the other person, a person taller than him, who fired the shots at the Armaguard officers. He denies that there was any agreement or understanding that shots be fired during the armed robbery. He has, accordingly, pleaded guilty to the charges of theft of motor vehicles and the charge of armed robbery but has pleaded not guilty to the charges of attempt to kill and reckless endangerment. His counsel has indicated that Gardner will not be saying that Coates was an actual participant in the armed robbery at the bank.
I also note that counsel for both accused did not suggest that there were any of the evidentiary problems that can arise in joint trials. In particular, Gardner not having been interviewed and Coates having given a no comment interview, the issue of dealing with evidence admissible against one accused and not the other does not presently arise. Further, it does not appear that the assessment of the credit of any witnesses for the Crown will require consideration of evidence admissible against one accused and not the other.
Counsel for both accused addressed the question of whether the arguments that normally are relied upon to support joint trials lack any strength in the circumstances of this case.
Comparing likely duration, they submitted that separate trials would each be significantly shorter than a joint trial. Counsel for Gardner submitted that as Gardner is pleading guilty to the theft and robbery charges, the evidence that will need to be led against him in a separate trial will be significantly less than the evidence that will be led in any joint trial and that he would not be interested in cross-examining on issues which do not affect him such as the issue of the identification of Coates. Counsel for Coates submitted that as Coates' defence is concerned primarily with the issue of whether he was in fact involved, he will not be interested in cross-examination of witnesses relevant to the other substantive issues. Their counsel submitted that in fact a separate trial against Gardner would take less than a week and a separate trial against Coates would take less than two weeks. The Crown's estimate for a joint trial at present is two weeks.
Another issue to be considered is the impact on witnesses of separate trials. For the accused it was submitted that because the issues to be contested by each accused were so markedly different, there would not be any real duplication of cross-examination in separate trials. Counsel for Coates submitted that possibly only the two Armaguard officers would need to be questioned by each accused.
Counsel for the accused also addressed submissions to me on another issue of concern which is commonly relied upon in supporting joint trials, namely the risk of inconsistent verdicts. Counsel submitted that this was not a risk that existed in the present case because of the positions being taken by the accused. In particular, neither was seeking to nominate the other as the offender. Coates is maintaining that he was not involved at all and Gardner, while admitting his involvement, is apparently maintaining that the person who did the shooting was bigger and taller than him. This would exclude Coates because he is shorter and of slighter build than Gardner.
In response, counsel for the Crown submitted that separate trials would be significantly longer than a joint trial. Counsel submitted that notwithstanding the concessions made by Gardner, a substantial number of witnesses would still need to be called if he had a separate trial including the two Armaguard officers. She submitted that in fact probably the only witnesses who would not be called if he had a separate trial were his relatives. Notwithstanding the pleas of guilty, the Crown still sees it as necessary to call other witnesses such as the bystanders. While there are differences in their evidence, it is part of the Crown case that the person who fired the shots at the Armaguard officers was the larger or taller of the two and it was that person who was wounded. It is also clear that Gardner was wounded and that can be proved.
Counsel for the Crown also submitted that in assessing the comparative lengths of a joint trial and separate trials it needed to be born in mind that in a joint trial there will be savings in time because there will only be one prosecution opening and final address and one charge. Further, in this instance, the cross-examination of witnesses in a joint trial is likely to be less than in separate trials because there will be less duplication in the former than in the latter.
Counsel for the Crown also submitted that separate trials would require the victims of the armed robbery to undergo the ordeal of evidence-in-chief and cross-examination twice and that, in considering the interests of justice, this should be born in mind.
On the issue of the risk of inconsistent verdicts on separate trials, counsel for the Crown submitted that this risk remained although it was more difficult to assess in this case. Counsel submitted that it was possible, for example, that in separate trials, Gardner could be acquitted on the attempted murder and reckless endangerment charges because the jury had a reasonable doubt as to whether he was in fact the person who fired the gun and Coates could be acquitted in a separate trial because the jury, while satisfied beyond reasonable doubt as to his presence during the robbery, had a reasonable doubt about whether he had fired the gun. Plainly, one of the two robbers fired a gun.
It is difficult to assess the degree of risk of inconsistent verdicts at this stage, and, accordingly, I propose to proceed on the basis that that risk is not something that should be taken into account in considering the applications.
As to the other issues, I am satisfied that two separate trials would be significantly longer than a joint trial and that it would be a very substantial burden to ask the witnesses, particularly the victims of the robbery, to give evidence more than once as would be required in separate trials. Accordingly, I am satisfied that absent other considerations, the interests of justice require that the matter proceed as a joint trial.
I turn to be specific arguments raised by counsel for the accused as to the disadvantages to their clients of a joint trial.
Counsel for Coates submitted that there was an unfair prejudice to his client in that Gardner would not be denying most of the Crown case and that this would give added weight to the Crown case against Coates. A particular concern was the evidence of the witness, Miles, who will give evidence suggesting that Gardner had taken gun cases into Coates’ house shortly before the armed robbery. He submitted that Coates does not concede that point and there is no evidence that Coates was there at the time. He submitted that because Gardner had pleaded guilty to the armed robbery charge, it was probable that this evidence of Miles would not be touched upon in the presentation of his case, whether in cross-examination, possible evidence or submissions. He submitted that the silence would lend weight to the evidence of Miles and to any other evidence not addressed in any way in the defence of Gardner's case.
Counsel for Coates also submitted that a joint trial imposed a major procedural disadvantage upon Coates. If there was a separate trial, he would be able to exercise his right to submit that there was no case to answer without the complication of the possibility of having to wait until Gardner had given evidence, if he chose to do so, and then Gardner's evidence would have to be taken into account in any no case submission.
As to the alleged prejudice that might flow from the silence of Gardner, in particular in relation to the evidence of Miles, counsel for the Crown submitted that the arguments involved something of a quantum leap for a jury to go from a lack of challenge to the evidence to the conclusion that, therefore, an accused agreed with the evidence. In addition, counsel for the Crown submitted that the jury will be told that it is the answers given by witnesses that constitute the evidence and, if necessary, other directions can be given. Counsel submitted that any potential prejudice can be easily addressed.
In my view, the argument advanced by counsel for Coates overstates the potential dangers. If the focus of each accused will be as different as their counsel have predicted, a lack of cross-examination of a witness by counsel for one of the accused will be a commonplace event and it will be quite apparent to the jury that the reason for the lack of any challenge is that the evidence that has been given is not of concern to that particular accused not that he accepts it. Should any problem emerge, the solutions suggested by counsel for the Crown would appear to me to be satisfactory to avoid any prejudice.
On the alleged procedural unfairness relating to the no case submission, as counsel for the Crown pointed out, we will not know if the accused is disadvantaged in any way until Gardner has made a decision whether or not to give evidence. The issue is premature.
If the analysis of the above matter is not correct, and the matters should be taken into account, they do not, in my view, outweigh the considerations favouring a joint trial.
For the foregoing reasons, I am satisfied that at this stage, a case is not been made out for the separate trial of the charges against Coates. I turn to the specific matters relied upon by Gardner in his application.
Counsel for Gardner submitted that there was relevant unfairness and a risk of a miscarriage of justice to Gardner in a joint trial. He submitted that for whatever reason, Gardner had not been interviewed and had not sought to be interviewed. As a result, his version as to what occurred will not come before the jury unless he gives sworn evidence. It is put that the failure to interview him and, therefore, the lack of any statement as to what occurred unfairly impacts upon any decision he will have to make about whether to give sworn evidence or not. Asked how this situation was affected by there being a joint trial, counsel submitted that one of the issues in the case was whether Gardner was the bigger or the smaller of the two robbers and the reality was that of the two men standing in the dock charged with the robbery, he is the taller. Counsel submitted that Gardner's case is that the smaller man did not fire any shots and that he was that smaller man and that he was not a party to any agreement with the taller man to kill anyone.
Counsel submitted that this also places unfair pressure on his client in determining whether or not to give evidence. The only alternative would be to put his account to witnesses while questioning them but the jury will be told that it is the answers to the questions which constitute the evidence.
This argument seems to me to fail to take into account what is presently said to be the reality of a joint trial, namely, that Coates will be strenuously asserting through his counsel at every opportunity that he was not at the robbery. Thus, the jury should be well aware that there is a real issue as to whether the shorter man in the dock was in fact involved. It seems to me that the reality is that the cases foreshadowed for each accused will support each accused. Coates will say he was not involved and this leaves open the possibility that the other person was in fact taller than Gardner. Gardner will say the other person was taller than him and if that is so that excludes Coates. In the circumstances this concern is insufficient to warrant a separate trial.
As to the unfairness said to flow from the failure to interview him and thus put pressure on him to give evidence, I accept the submission of counsel for the Crown that the lack of a police interview is not relevant to the issue of whether there should be a separate trial. Gardner can console himself with the thought that there will be no prior statement on which he can be cross-examined should he choose to give evidence. If the mater is relevant, it should not outweigh the considerations favouring a joint trial.
For the foregoing reasons I am also satisfied that Gardner's application for a separate trial should also be refused.
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