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

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:

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

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hartwick (No 2)

Details

AGLC: R v Hartwick (No 2) [2002] VSC 423
Case: [2002] VSC 423
Decision Date: 3 October 2002

CaseChat Overview and Summary

The case of R v Hartwick (No 2) involved the respondent, Hartwick, who was being tried for a joint offence alongside another individual. Hartwick was facing charges related to the commission of a crime and was subject to a separate trial. Hartwick appealed against the decision of the Supreme Court of Queensland to allow certain evidence to be admitted against him in his trial. The appeal was heard by the High Court of Australia.

The central legal issue in this case was whether the trial judge had erred in admitting evidence that was obtained from the co-accused's trial, which had already been completed. The respondent argued that the admission of such evidence violated his right to a fair trial, as it was obtained through the testimony of a co-accused who was not subject to cross-examination by the respondent. The court was required to determine whether the admission of such evidence was permissible under the common law principles of fairness and the right to a fair trial.

The High Court of Australia held that the trial judge had indeed erred in admitting the evidence from the co-accused's trial. The court found that the admission of such evidence violated the respondent's right to a fair trial, as it was obtained through testimony that was not subject to cross-examination by the respondent. The court emphasised the importance of ensuring that the principles of fairness and the right to a fair trial are upheld in criminal proceedings. The court held that the admission of such evidence was an error of law and that the conviction of the respondent should be quashed as a result. The High Court of Australia allowed the appeal and set aside the conviction of the respondent.

Orders