R v Handley and Stewart No. DCCRM-00-156

R V HANDLEY AND STEWART
[2000] SADC 98

Judge Noblet
Criminal

This is an application for an order that two persons jointly charged with armed robbery be tried separately. The prosecution alleges that Michael Gary Handley and Sean Kym Stewart, while armed with a replica pistol and a tomahawk, robbed Mark Young, an attendant at a Mobil Quicks Service Station, of cigarettes to the value of $3861.37 and cash in the amount of $1027. It is alleged that they tied up the attendant with tape and that Stewart stood guard over him while Handley operated a time delay safe to obtain cash. The safe enables tubes of cash up to the value of $40 to be removed at 2 minute intervals. It is further alleged that Handley put on the attendant’s t-shirt and served several customers during the next 45 minutes or so while waiting for the time delay to make more cash available. Handley has made no admissions and declined to answer any questions.
Ten days after the robbery, Stewart volunteered information to the police. He was interviewed and the interview was recorded on audio tape. He made full admissions to the police but claimed that he was forced to participate in the robbery by Handley. He claims that Handley woke him up at two o’clock in the morning and that he feared that Handley would hit him with the tomahawk he was carrying if he did not help with the robbery. It is clear that Stewart’s defence at trial will be based upon duress. He wants the whole of the record of interview to go before the jury, including what he told the police about Handley’s propensity for violence.
I take as my starting point the following passage from the judgment of Bray CJ and Mitchell and Sangster JJ in R v Harbach (1973) 6 SASR 427 at 432:
“But three things are clear. The first is that when the accused are charged with committing the crime jointly prima facie there should be a joint trial: R v Pullman ([1954] SASR 116 at 121; R v Kerekes (1951) 70 WN (NSW) 102, per Owen J (at 104). ..... The second is that a joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against one of the accused, though admissible against the other, will be before the jury (R v Pullman; Youth v The King [1945] WM 27) and the third is that it may be ordered notwithstanding that one of the accused or each of the accused is trying to cast the blame for the crime of the other (R v Grondkowski [1946] KB 369), though both of these are highly relevant considerations to the exercise of the discretion: see Grondkowski (supra) (at 373 - 374).
There may appear to be an anomaly here. It may appear strange that material which would be sedulously kept from a jury, if an accused person were being tried alone, should be allowed to go before them when there is another person in the dock on the same charge. The point is made, with his customary incisiveness, by Dr Glanville Williams, The Proof of Guilt (1955), pp186 - 187. The answer appears to be two fold: first, that it is the duty of the judge to make it plain to the jury what evidence is inadmissible against any of the accused and to warn them that they must not use such evidence against that accused and that the law assumes that the jury is capable of understanding and willing to heed such admonitions; secondly, that in such cases, and particularly when each of the accused is seeking to cast the blame on the other, the interests of justice demand that the jury should have the whole picture presented to them and not half of it, and should see the person on whom blame is sought to be cast as well as the person seeking to cast it: R v Gibbins and Proctor (1918) 13 Cr App R 134 at 137; Grondkowski; Kerekes (supra).”
Similar views were expressed by King CJ in R v Glover (1987) 46 SASR 310 at 312:
“I take the view that where two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is, generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together.”
Cases in which a joint trial has been ordered (either at first instance or on appeal) despite significant prejudice to one or more of the accused include Grondkowski (above), Harbach (above), R v Holden (1990) 52 A Crim R 32, R v Webb and Hay (1992) 59 SASR 563 (and on appeal Webb and Hay v R (1994) 181 CLR 41), and R v Vollmer and others [1996] 1 VR 95.
In Grondkowski (above), two persons were jointly charged with murder. Each of them admitted that they were present at the killing but each sought to put the blame for the actual shooting on the other and each denied that he intended to offer violence or even to rob. The court said that prima facie, where the essence of the case is that the prisoners were engaged on a common enterprise, it is obviously right and proper that they should be jointly indicted and jointly tried. The court went on to say this:
“.... In some cases it would be as much in the interests of the accused persons as of the prosecution that they should be [jointly tried]. Suppose, for instance, that the defence of one was that he or she was acting under the positive duress of the other. It would be obviously right that they should be tried by the same jury, who might see in one prisoner a harmless or nervous looking little man or woman, and in the other a savage brute whom they might deem capable of forcing his co-prisoner against his will into assisting in a crime.”
Holden (above) was another case of two persons jointly charged with murder. The evidence that would have been inadmissible against the appellant in that case in separate trials included a statement given by the other accused to the police and recorded on video tape and audio tape. The statement included observations by the other accused about the appellant’s violent disposition. The court (King CJ and Legoe and Perry JJ) by majority found no error on the part of the trial judge in exercising his discretion to refuse to accede to the request for separate trials. Perry J said:
“Where the application for a separate trial is put forward on the basis of the likely prejudicial effect of out-of-court statements of a co-accused, it is for the trial judge to balance the effect of the prejudicial statements on the minds of the jury against the likely effectiveness of the usual warnings, but the prima facie rule is not easily displaced ....”.
In Webb and Hayv R (above at pages 88 - 89), Toohey J agreed with the statement made by King CJ in R v Webb and Hay in the Court of Criminal Appeal that there are “strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so when each seeks to cast the blame on the other”. Toohey J went on to say:
“There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused.”
In Vollmer (above), three accused were jointly charged with manslaughter and a fourth accused was charged with false imprisonment. Two of the accused made an application for separate trials because the records of interview of the other accused persons implicated the applicants and there would therefore be a great deal of evidence before the jury which would not have been admitted if the applicants had been tried separately. The Victorian Court of Criminal Appeal upheld the decision of the trial judge not to allow separate trials. One of the factors taken into account on appeal was that “in the present case where all accused were of previous good character and all had given out-of-court versions of the relevant events, no special prejudice arose from the judge’s directions as to the credibility of those versions”, and considered that “the potential for prejudice was small”.
Cases in which separate trials were ordered (either at first instance or on appeal) include R v Demirok [1976] VR 244, R v Conlon and Conlon 30 SASR 176, R v Gibb and McKenzie [1983] 2 VR 155, R v Collie, Kranz and Lovegrove (1991) 56 SASR 302 and R v Piller and others (1995) 86 A Crim R 249.
In Demirok (above) a man and his wife were jointly charged with murder. Each of the accused applied for the murder charge to be the subject of separate trials but the trial judge refused the application. The Supreme Court of Victoria came to the decision that it was impossible to say that the judge exercised his discretion wrongly in the situation which faced him, but held that there had been a miscarriage of justice. The decision turns on the particular facts of the case and, in particular, events which developed in the course of the trial. The Court found seven factors which it considered might cause prejudice to one of the accused. One of these factors was a possibility that the defence of coercion might be advanced on behalf of the female accused and that this might increase the possibility of a conflict of evidence between the two (cf Grondkowski (above)).
R v Conlonand Conlon (above) was a case in which a husband and wife were jointly charged with three counts of maliciously causing bodily harm and three counts of assault occasioning actual bodily harm. The wife had made statements to police officers which would not be admissible in evidence against her husband but which implicated the husband and which were calculated to have a highly prejudicial effect on the minds of the jury. Each accused applied for separate trials. The trial judge (Cox J) noted that the husband faced the prospect, if his application were to be refused, of standing trial together with someone against whom the Crown did not have a strong case but who would nevertheless provide an avenue for the introduction into the trial of a very great amount of highly prejudicial evidence against him, evidence which no-one would argue for a moment could be led if he were tried separately. His Honour found that this factor was more important than the weight of the prejudicial evidence that would be introduced if the joint trial was to proceed. He considered that “if the two accused were to be tried jointly, Mrs Conlon’s objective role would for practical purposes be almost confined to acting as a stalking horse in the Crown’s case against her husband”. With all due respect to Cox J, I find this line of reasoning a little difficult to follow. I can find no other case in which separate trials were ordered because a joint trial would strengthen the case against one of the accused.
R v Gibb and McKenzie (above) was another case in which two accused were jointly charged with murder. An application by one of the accused for a separate trial was refused. The Supreme Court of Victoria noted that “the fact that one accused alleges that he was coerced by the other, so far from being a reason for separating the trials, would generally be a reason for adhering to a joint trial.” The court also noted that “the mere reception of evidence of other criminal activities by the applicant Gibb and of his bad character is not a ground for exercising the power”. The court found that, as in Demirok, there was no error on the part of the trial judge in refusing the application for separate trials. However, “the course the trial took and in particular the evidence to which we have referred was so prejudicial to Gibb, and prejudicial to him in a way that would not have been possible if he had been tried separately, that we are called upon to weigh that prejudice against the matters of public interest referred to in R v Demirok. The court held that there had been a miscarriage of justice and that the convictions should be quashed.
In R v Collie, Kranz and Lovegrove (above) three accused (and others) were jointly charged with murder. The trial judge refused applications by all three of them for separate trials. The Court of Criminal Appeal found that, during the joint trial, evidence was admitted which was legally admissible only against one accused but which had a highly prejudicial effect on the others. The cumulative effect of that and some other matters was such that a miscarriage of justice had occurred.
In R v Pillar and others (above) four accused were jointly charged with the murder of a man who died when he was shot during an armed hold-up. When interviewed, each accused gave a different version of the events and, to varying extents, implicated each other. Some admissions were made but were subsequently withdrawn. The trial judge (Dowd J) expressed concern about the very strong impact of electronically recorded interviews which may distort the effect of oral directions given to the jury by the trial judge. He also considered that prejudice and positive injustice may result from the multiplicity of stories given by four different accused in the one trial. His Honour ordered separate trials.
I have not referred to cases involving charges of conspiracy, as these are generally regarded as being in a special category. As King CJ said in Collie (above):
“The problem there arises from the fact that the agreement between the alleged conspirators is the gist of the crime charged. It may be very difficult for a jury which finds that A is guilty of conspiracy with B to find also, because of the difference in the evidence which is admissible against B, that B is not guilty of conspiracy with A. For that reason it may be desirable, perhaps even necessary, to achieve a just result in conspiracy cases in which the evidence against the alleged conspirators is significantly different, to try them separately.”
The determination of the application before me is not an easy one. The cases to which I have referred are generally consistent regarding the principles to be applied but sometimes seemingly inconsistent in the end result (which is not surprising in cases which involve the exercise of a discretion which must be exercised on the merits of the particular case). Unlike an appeal court, which can look at what actually happened during a trial and determine after the event whether there has been a miscarriage of justice, I must exercise my discretion solely on the material before me and on any intimations made by counsel. Counsel for Stewart intimated that in a joint trial she would oppose any exclusion from the jury of any portion of the record of interview of her client (and, I assume, his witness statement). She also intimated that she may wish to call evidence of a previous armed robbery committed by Handley because of what she claims to be a similarity between that robbery and the robbery with which Handley is now charged. At this stage I doubt whether that evidence would be admissible, because I cannot see the relevance of it to the claim by Stewart of duress. A further difficulty arises from the fact that I have no idea what the defence of Handley may be.
Putting aside for the moment the public interest factors to which I have already referred, it seems to me that there are two types of prejudice that may arise in this case, depending upon whether the two accused are to be tried separately or together.
First there is the possible prejudice to Stewart if there are to be separate trials because the jury in his trial would not have the opportunity to see (and possibly to hear) the person whom Stewart says coerced him into taking part in the robbery (Grondkowski (above), Glover (above), Gibb and McKenzie (above) and Gibbons and Proctor (above). Of course there cannot be any amelioration of this prejudice by any instruction or advice given to the jury by the trial judge. There is also the factor that in a joint trial Handley may deny any duress and Stewart’s counsel would be able to cross-examine Handley on this topic. In a separate trial, Stewart would be completely on his own in trying to convince the jury that he was an unwilling participant in the robbery.
Secondly there is the prejudice to Handley in having evidence admitted at a joint trial that would not be admissible if he were to be tried alone. In his interview, Stewart not only cast the whole blame for the robbery on Handley, but he also accused Handley of forcing him to take part in the robbery and referred to Handley’s propensity for violence. He also mentioned that Handley knew how the time delay safe worked because he had worked at a service station before and he had previously been charged in relation to an offence committed at a Caltex Service Station. In his formal statement, Stewart claimed to have seen Handley use violence before and mentioned that Handley had “a bad speed habit” and that when he is on drugs he is irrational and reacts on the spur of the moment. However, in a joint trial, this prejudicial evidence can (and must) be the subject of appropriate directions to the jury as to the limited use that may be made of it.
Taking into account these factors as well as the public interest, I have come to the conclusion that this is a case in which the prima facie rule that there should be a joint trial should be adhered to. I believe the prejudice to Handley in having a joint trial can be overcome by careful directions to the jury. The application for separate trials is therefore dismissed.
That is not to say that all the evidence that Stewart would have given in a separate trial is admissible in the joint trial. On the material available to me at present, that evidence would be admissible only to the extent that it is relevant to Stewart’s presumed defence of duress. If counsel for Handley wishes to make a further application for exclusion of some portions of Stewart’s evidence on the ground of irrelevance, I will hear it either before commencement of, or during, the trial.

[2000] SADC 98

3 August 2000