R v Hartwick (No 2)

[2002] VSC 423

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. C01021821 of 2002

THE QUEEN

V

JOHN DOUGLAS HARTWICK, LISA JANE HARTWICK AND CELIA KATHLEEN CLAYTON

Ruling No 2

JUDGE:	Smith J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October 2002
DATE OF RULING:	3 October 2002
CASE MAY BE CITED AS:	R v Hartwick & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 423

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Crime Practice and Procedure – Joint offences – Separate trial – Evidence inadmissible against applicant.

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APPEARANCES:	Counsel	Solicitors
For John Douglas Hartwick	Mr J. Desmond	McNamaras
For Lisa Jane Hartwick	Mr S. Langslow	Stary Myall
For Celia Kathleen Clayton	Mr L. Hartnett	Patrick Dwyer
For DPP	Mr R. Gibson	Kay Robertson Solicitor for Public Prosecutions

HIS HONOUR:

1. The accused, John Hartwick, has applied for a separate trial in these proceedings.

1. The Crown case is that the three accused embarked on a joint venture from the home of Lisa Hartwick to inflict serious injury on the deceased and Paula Rodwell because of damage that had been done to cars belonging to John Hartwick and the accused, Celia Clayton, by a car they believed had been driven by the deceased.

1. The principles to be applied relevantly in the current case are conveniently set out in R v Gibb & McKenzie[1] where the Full Court stated –

"Where three persons are charged with the murder of another and the Crown alleges that all three were present at the time of the killing, the interests of justice ordinarily require that they be tried together.  The interests of justice are not confined to the interests of the accused.  It would usually be scandalous and a serious blot on the administration of justice if the ordering of separate trials in such cases resulted in inconsistent verdicts;  see R v Demirock, [1976] V.R. 244 at p. 254 where the other matters of public interest to be considered are also referred to. The fact that one of the accused alleges that he was coerced by the other so far from being a reason for separating the trials will generally be a reason for adhering to a joint trial. …"

The Full Court went on –

"Joint trials of course raise difficulties, some of which cannot be foreseen at the outset.  It is for this reason that a Court of Criminal Appeal must retain the power relied upon in R v Demirock.  But that power will not generally be exercised merely because evidence which has been properly admitted in the case of one accused is inadmissible in the case of another and prejudicial to that other.  Speaking generally, although the Crown may be inhibited to some extent by the evidence it can lead, an accused should be allowed to lead in his defence, whether by way of calling witnesses, … or by way of the cross-examination of any witnesses called at the trial, any evidence which is relevant to his defence."

[1][1983] 2 E.R. 155 at 163.

1. The Full Court referred to Lowery v King[2] and, as to the discretion to exclude, R v Darrington & McGauley.[3]

   [2][1974] A.C. 85 at 102.

   [3][1980] V.R. 353 at 385.

1. Finally I note that the Full Court went on to consider the problem posed in joint trials of evidence of out-of-court statements by one accused which implicates another.  The Court commented –

"Such evidence will not usually justify separate trials although the trial judge will have to give the jury a special direction so that they do not misuse it."  (At 164.)

1. It appears that the Crown will rely on evidence of the fatal incident from Paula Rodwell, the alleged victim of serious injury in the incident.  It will also rely on evidence from neighbours who saw the accused depart from the Hartwick home armed with different weapons.  In addition there is DNA evidence including evidence of the deceased's DNA on jeans allegedly belonging to Clayton and John Hartwick and on a Bi-Lo pole and a vacuum cleaner tube found at the Hartwick residence after the event.  In addition DNA of John Hartwick was found on the dressing-gown of Paula Rodwell.  No DNA of the deceased was found on the clothing of Lisa Hartwick but her DNA was found on a knife in a Ford Pulsar.  The Crown also relies on evidence that the deceased was robbed and the stolen items found in the possession of the Hartwicks or near their home.

1. The evidence that differs in the cases against each accused is the evidence of their interviews with the police.  Lisa Hartwick and Celia Clayton gave accounts of what occurred in which they played down their own roles and increased that of the others.  Each involved John Hartwick in the incident.  John Hartwick in his interviews exercised the right to silence but the Crown alleges that he answered some questions to give the impression that the stab wound he received that night was in some way connected with a trip he made to the Bi-Lo car park to purchase some marijuana.

1. Turning to the defence cases outlined by defence counsel, each of the accused concedes being present at the incident.  Each, however, will seek to play down his or her role.  In particular, John Hartwick's case is that he was at all times the peacemaker and did not join in any joint venture to injure the deceased or Paula Rodwell.  To the extent that he was involved in the incident with the deceased, he will say he acted in self-defence.  He does not admit that he inflicted the fatal wound and he also will maintain that when he left the premises he believed the deceased was alive and he leaves open the possibility that someone else may have inflicted the fatal wound.  In the case of Lisa Hartwick, she will maintain that she went to the scene under coercion from the other two and did not enter into any joint venture.  At the scene she will maintain that she remained in the background and did not participate.  In the case of Celia Clayton, she will maintain that she did not join in any joint venture and at the scene she tried to isolate Paula Rodwell and took no part in the alleged assaults on the deceased.

1. It is likely that, in a joint trial, the accused or some of them will challenge the credibility of Paula Rodwell on the basis of alleged inconsistencies in her police statements and with the committal evidence, including time sequences.  There is also likely to be an attack on her character on the basis of prior convictions, prostitution, drug use, convictions for dishonesty and a suggested lack of candour to the police.

1. It is clear from the authorities that in a case like the present there is a strong prima facie case against separate trials.  The matters of public interest which support a joint trial of the accused were referred to in Demirock, at 254. The first matter referred to was the time and public expense involved in more than one trial and the need for expedition. In some cases the time and cost of a joint trial may not be significantly different from the time and cost of a separate trial. In the present case, however, I am satisfied that there would be real additional time and cost involved in separate trials. Next reference was made to the possibility of inconsistent verdicts if a separate trial were to be ordered. This is also a relevant concern in the present case. Finally consideration must be given to the position of the witnesses. The Crown has foreshadowed over 20 witnesses including Paula Rodwell who witnessed the killing. The evidence of most if not all of these witnesses will be relevant to the case against John Hartwick and one of the other accused. There needs to be good reason before requiring witnesses to give their evidence in more than one trial.

1. Counsel submitted that the circumstances of this case did require a separate trial for John Hartwick.  He submitted that a joint trial would expose his client to serious unfair prejudice which could not be sufficiently addressed by appropriate directions to the jury about the use of evidence.  He referred to evidence admissible against the other accused but inadmissible against John Hartwick which contained in it evidence as to his role implicating him in the alleged venture and contradicting his case that he was at all times the peacemaker.  This comprised the records of interview of the other accused and evidence of statements to members of the Canham family.  Counsel submitted that in addition this inadmissible material bolstered the credit of the critical Crown witness, Paula Rodwell, by confirming some aspects of her evidence as it affected John Hartwick.  Relying on cases such as Demirock[4] and Jones & Waghorn,[5] he submitted that it would not be possible for the jury in assessing the credibility of the evidence of Paula Rodwell against John Hartwick to put out of its mind the impact of the other evidence that bolstered the credit of Paula Rodwell's evidence admissible against other accused but not John Hartwick.

   [4][1976] VR 244.

   [5](1991) 55A Crim R 159.

1. There might be greater force in these arguments if the situation was one, for example, where John Hartwick's case was that he was not present and did not go to the scene.  What is in issue, it seems, is the role and state of mind of each accused leading up to and in the course of the incident.  The records of interview of Celia Clayton and Lisa Hartwick bolster the credit of Paula Rodwell but principally in those areas that are not in dispute.  When it comes to the incident itself, each disputes Paula Rodwell's account of their role.  While they make statements damaging to John Hartwick, they differ and they also support John Hartwick at least to the extent that they suggest that the deceased attacked him.  They do not support Paula Rodwell's detail of the beating given the deceased – in particular her evidence that all three joined in the beating of him.  So far as the attack on Paula Rodwell is concerned, each of Celia Clayton and Lisa Hartwick states that the other did it.

1. Thus the situation is not one where it can be said that the inadmissible evidence bolsters the credit of the chief Crown witness in any general or blanket way.  The jury will have accounts from the records of interview that will both support and conflict with the evidence of Paula Rodwell.  The jury should be in a position to consider the credibility of Paula Rodwell's evidence against one accused in light of the evidence admissible against that accused only without being overborne by their credit findings after considering the evidence admissible only against another accused.  Obviously their task will be a difficult one but with appropriate directions, it should be manageable.

1. Counsel also argued that the jury would not having considered that evidence, inadmissible against John Hartwick, have the benefit of his account of events in considering the evidence admissible against him because he had exercised his right to silence when interviewed by the police.  It is put that this legitimate exercise of his rights would prejudice his fair trial if the matter proceeded as a joint trial.

1. While John Hartwick may suffer initially a forensic disadvantage in that his account of events through a record of interview will not be before the jury in the course of the Crown case, the jury will be made aware of the substance of his case assuming counsel complies with the rule in Browne v Dunn when cross-examining Paula Rodwell.

1. Counsel for John Hartwick also submitted that his client would suffer unfair prejudice because he would be forced to give evidence and in doing so would have to run the gauntlet of cross-examination by counsel for the co-accused, one of whom was alleging coercion by John Hartwick.  He is someone apparently with a significant criminal history.  With a separate trial, this would not occur and he could conduct his defence retaining a choice as to whether to give evidence.

1. Having a separate trial would improve his position forensically.  But it should not be assumed that he would have been able to avoid giving sworn evidence if tried on his own.  There is, for example, DNA evidence capable of linking him to the incident.  A joint trial, however, will probably complicate the decision whether to give sworn evidence and may provide additional reasons that will require him to give evidence.

1. Plainly John Hartwick will suffer disadvantages if the matter proceeds as a joint trial but I am not persuaded that the disadvantages will create such a situation of prejudice to him that the prima facie rule should not apply.  I am not persuaded that justice requires that he have a separate trial on the evidence presently before me.

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