R v Hawkins and Boatswain No. DCCRM-02-912
[2003] SADC 116
•9 July 2003
R v Robert Leslie HAWKINS & Russell John BOATSWAIN
[2003] SADC 116
CRIMINAL
JUDGE DAVID SMITH
In this matter Robert Leslie Hawkins and Russell John Boatswain are charged on one Information as follows:
·Robert Leslie Hawkins on the 27th day of November 2001 at Waikerie, assaulted Michael Protheroe, thereby occasioning him actual bodily harm. (Section 40 Criminal Law Consolidation Act, 1935); and
·Robert Leslie Hawkins and Russell John Boatswain on the 27th day of November 2001 at Ramco, unlawfully and maliciously wounded Peter Geoffrey Sheedy, with intent to do him grievous bodily harm. (Section 21 Criminal Law Consolidation Act, 1935)
When initially arraigned on the 9th July 2003, Robert Hawkins pleaded not guilty to both offences. Russell Boatswain pleaded not guilty to the second Count on the Information of Wounding with Intent to do Grievous Bodily Harm, but guilty to Unlawful Wounding.
The defendant Robert Leslie Hawkins applied pursuant to Rule 9 for the following orders:
1.that Count 1 be severed from Count 2;
2.that the evidence of the victim in Count 2, Peter Sheedy, detailing his past relationship with the applicant be excluded; and
3.that the photographs of the injuries of Peter Sheedy be excluded.
Argument on the voir dire application proceeded before the empanelling of the jury. Upon the conclusion of argument on the afternoon of the 9th July 2003 I ruled as follows:
·that the Counts were properly joined on the Information;
·that the Counts should not be severed;
·that the Crown could adduce the evidence of so-called “bad blood” between the victim Sheedy and the defendant Robert Hawkins; and
·that the Crown could adduce in evidence the photographs of the injuries to the victim Peter Sheedy.
I reserved the right to publish reasons. The trial commenced on the 10th July 2003 and concluded on Friday the 25th July 2003 when the jury returned unanimous verdicts of guilty against both defendants.
I now furnish reasons for my orders on the voir dire.
The Facts
There was no evidence adduced by either side on the voir dire hearing. The declarations in substance contained the following factual allegations.
On the late afternoon of the 27th November 2001 Michael Protheroe and his girlfriend, Noeline Ogle, drove down to a picnic area on the banks of the River Murray at Waikerie. On entering the area they drove past the defendant Robert Hawkins. He was present in the area with the defendant Russell Boatswain and four youths, namely Jack Hawkins, his son, Ashley Boatswain, Kenneth Harvey and Tyron Grocke. The Crown allege that as Protheroe passed Robert Hawkins location he, Hawkins, made a shooting gesture at Protheroe which provoked Protheroe to insult Hawkins by calling him a junkie. As a result Hawkins and his son Jack, together with the other named youths and the defendant Russell Boatswain, approached Protheroe. Both Robert Hawkins and his son are alleged to have assaulted Protheroe. In particular, Robert Hawkins was alleged to have punched him at least twice in the face. As Protheroe drove off, Jack Hawkins, the son of the defendant, yelled out, inter alia, that he was going to come out home and bash him.
The two defendants and the four youths also left the riverfront area in a van driven by Robert Hawkins. The van stopped at the bottle department of the Waikerie Hotel and liquor was purchased. The van then headed west out of Waikerie to Ramco. Tyron Grocke, who thought they were going to return to the riverfront to drink the liquor, on inquiry was told by Jack Hawkins “we are going to find the fella and sort him out”. Michael Protheroe lived with Noeline Ogle at a house at Ramco some six kilometres west of Waikerie.
Peter Sheedy, an unemployed disability pensioner who lived in a caravan on the river at Ramco Point, was walking eastward along the Ramco Road heading for Michael Protheroe’s home. Peter Sheedy was an associate of Michael Protheroe. There was evidence of “bad blood” between Sheedy and Robert Hawkins. Sheedy, at one time, shared his morphine based prescription medication with Hawkins. However, they had fallen out. Sheedy had complained of Hawkins threatening him and subjecting him to intimidating behaviour.
The van driven by Robert Hawkins in which was Russell Boatswain, Ashley Boatswain, Jack Hawkins, Kenneth Harvey and Tyron Grocke came upon Peter Sheedy on the opposite side of the Ramco Road in the vicinity of Protheroe’s home. According to Sheedy’s declaration, Robert Hawkins yelled out to him as the van passed “You little cunt I’m going to kill you”. Sheedy said he responded with some abuse. The van then stopped some metres down the road. The declarations of a number of Crown witnesses asserted that some of the occupants of the van, including the defendants, emerged from it and gathered from the back of the van an array of implements including hammers, screw drivers, a spade and a jack lever. In the result, Peter Sheedy was set upon and sustained multiple injuries including a fractured skull and permanent brain damage. This occurred within approximately 20 minutes to half an hour of the events at the riverfront.
The occupants of the van, including the two defendants, then left the scene in the van. Sheedy was left prone, unconscious and bleeding on the side of the road. Robert Hawkins then drove the van to a nearby location on a dirt road. He took the bloodstained implements and threw them over a fence into some bushes. Forensic evidence was that the spade, mash hammer, claw hammer and right boot of Robert Hawkins contained stains which tested positive for blood and the DNA profiles of which matched that of Sheedy’s blood.
Whilst Count 1 is an allegation against Robert Hawkins alone, the facts, as alleged in the declarations, allege that both Jack Hawkins and Robert Hawkins assaulted Protheroe and the above named youths and Russell Boatswain were present. Protheroe said that someone else was punching him. Count 2 alleges that the two defendants acted together and the Crown case borne out by the facts alleged in the declarations was that the defendants were part of a larger group including some or all the youths in the van.
As indicated, the defendant Robert Hawkins pleaded not guilty to both charges. In his police interview he denied striking Protheroe at the riverfront and denied involvement in the wounding of Sheedy on the Ramco Road save that he accepted that he tackled Sheedy to the ground when he saw Sheedy swinging a chain at his son. He said he himself was hit by the chain as was his son, however he rescued his son and returned to the van with his son. He said he was not involved in the further assault upon Sheedy which plainly resulted in the serious injuries. He explained to the police in his interview that as he drove past Sheedy, Sheedy made as if to push the handcart he had with him across the road into the path of the van. Hawkins said that he swerved, braked and stopped and before he could intervene his son had left the vehicle and approached Sheedy who then attacked his son with a chain he had with him.
As indicated, Russell Boatswain pleaded guilty to Unlawful Wounding. His statement to police and a declaration made by him was effectively an admission to the substance of the facts set out in the declarations of the Crown witnesses.
Such was a broad picture of the allegations of fact revealed in the declarations.
Arguments
The applicant’s argument can be summarised as follows:
·these were separate and distinct offences
- as evidenced by the fact they are charged under different sections of the Criminal Law Consolidation Act (ss 40 and 21);
- different participants were involved;
- provocation was only an element on Count 1;
- joint enterprise was only an element of Count 2;
·they were improperly joined under s278(1) of the Criminal Law Consolidation Act;
·in the alternative, there is a residual discretion for the judge to order separate trials as to have the matter tried together would result in a miscarriage of justice.
The Director of Public Prosecution put forward the following arguments:
·to separate these accused is to render a break in the factual nexus and would make the case unintelligible;
·these events are so closely related in time as they occurred roughly half an hour apart;
·it was the same group of participants;
·this same group of participants were travelling in the same vehicle;
·this vehicle was at all material times being driven by the accused Hawkins; and
·this was two ends of one continuous episode.
The applicant needed to satisfy me that the joinder did not comply with s278(1) and the criteria set out in the authorities for joining offenders. As to discretionary matters, the onus is upon the applicant to establish on the balance of probabilities matters which justified the exercise of discretion in his favour (see R v Collins (1976) 12 SASR 498 per Bray CJ at 508-9).
The principles
Section 278(1) of the Criminal Law Consolidation Act, 1935 (SA), permits the joining of two or more offences on the same information if those charges are founded on the same facts, or form, or are part of a series of offences of the same or similar character. Section 278(2) empowers the Court to sever in cases where the joinder results in injustice.
In R v Collins (1994) 76 A Crim R 204, McPherson JA and Lee J in the Court of Criminal Appeal in Queensland in construing a provision similar to s278 said at 208:
“It has long been accepted that the basic criteria for the joinder of counts under subs (2) is the existence of some connection or nexus between them, each limb of the subsection being illustrative of the circumstances giving rise to that nexus: Ludlow v Metropolitan Police Commissioner [1971] AC 29 at 39; (1970) 54 Cr App R 233 at 242; Kray [1970] 1 QB 125 at 130-131; (1969) 53 Cr App R 569 at 573-575; Clayton-Wright [1948] 2 All ER 763 at 765; Cranston [1988] 1 Qd R 159 at 164. In defining in broad terms what connection is sufficient for this purpose, an examination of the cases demonstrates that an appropriately liberal reading be given to the text of the section, consistent with its underlying policy. That policy, it was stated in Kray at 131; 575, is to enable the joinder of charges which may be “properly and conveniently” dealt with together; see also Ludlow at 38; 241. It is obviously desirable both in the interests of the due and expedient administration of criminal justice and in the interests of finality of litigation in relation to the particular accused, that there be a single and final inquiry into matters which arise out of or which essentially involve common issues of fact or law. Any injustice which such a course has the potential to produce is adequately catered for by the discretion to sever provided for in s 597A. If nothing else, consistency in decision making would dictate that the one tribunal resolve such questions, little being gained from a fragmented approach. The simple means which the legislature has provided for giving effect to this policy is to allow the joinder of multiple counts in the one indictment in an appropriate case “so that the whole of the facts can be adjudicated upon by one jury”: Bellman [1989] AC 836 at 850; (1989) 88 Cr App R 252 at 260. Indeed so extensively has this policy been recognised, that the courts have laid down the general rule that matters which can be joined without prejudice to the accused ought generally to be: Connelly v DPP [1964] AC 1254; (1964) 48 Cr App R 183; Bargenquast (1981) 5 A Crim R 126.
The counts in the present indictment plainly display the requisite nexus. If nothing else, all of the offences charged had their genesis in the events of 13 June 1993 and in that sense attract the operation of the first limb of the subsection. For offences to be “founded on the same facts” they must have a “common factual origin”: Barrell and Wilson (1979) 69 Cr App R 250; Bellman at 850; 260; Cranston at 162. But that is a phrase which is not to be narrowly construed. In particular, it is not necessary for the offences to have arisen contemporaneously or to involve precisely the same facts. All that is necessary is for them to be traceable, either in time, place or circumstance, to common events.”
Section 278 concerns only the joinder of offences not the joinder of offenders. In this matter, there is, in addition to the joinder of offences, the joinder of two offenders.
Joining separate charges against different accused on the same information is permissible at common law or rather pursuant to the power of the Court to regulate matters of practice, as long as the charges arise out of the same set of circumstances, or are otherwise sufficiently closely linked. Further, doing so is not conditional on evidence or allegations that the various defendants were acting in concert (see R v Assim (1966) 2 QB 249; R v Rigney (1975) 12 SASR 30 per Bray CJ at 46; R v Hogan and Ors (1990) 159 LSJS 297 per Mullighan J at 306-309).
The case of Hogan is a dramatic example of such a joinder. In that case multiple offenders and multiple offences were joined on the same Information. The Court held it was permissible on the basis that the charges arose from a large drug trafficking enterprise. At 306 in Hogan Mullighan J said:
“Although s.278 speaks only of joinder of offences and not of offenders, it may readily be acknowledged that s.278 does not preclude the joinder of accused persons in the one information, nor does any other provision of the Act.
Justification for the joinder of the accused in the present information must be found in the common law, or as it is sometimes said, in the established practice of the court.”
On the same topic the English Court of Criminal Appeal in the case of Assim (supra) said at p.261:
“As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases.
Again, while the court has in mind the classes of case that have been particularly the subject of discussion before it, such as incidents which, irrespective of there appearing a joint charge in the indictment, are contemporaneous (as where there has been something in the nature of an affray), or successive (as in protection racket cases), or linked in a similar manner, as where two persons individually in the course of the same trial commit perjury as regards the same or a closely connected fact, the court does not intend the operation of the rule to be restricted so as to apply one to such cases as have been discussed before it.”
Decision
So with those principles in mind, I turn to the application in this case.
The issue is firstly whether the Counts and defendants were properly joined and if so whether such joinder has given rise to injustice so as to enliven the discretion to sever.
It is clear that the joinder was proper. The offences and indeed the offenders were inextricably linked. The wounding of Sheedy had its genesis in the assault of Protheroe. The obiter comments of King CJ in R v Collins (1989) 152 LSJS 381 aptly describes the basis upon which the joinder here was proper. Collins was charged on one Information of rape of a woman named Paula on the 8th July 1987 and Indecent Assault on the same date of a 15 year old girl named Julianne. In the end result a retrial was ordered but, by the way, the former Chief Justice had this to say at p384:
“As there is to be a new trial, I think that I should say that I am not to be taken as necessarily agreeing that the evidence of the Paula incident was not admissible in proof of the charge relating to the Julianne incident. If the prosecution seeks to use the evidence of the Paula incident in that way at a new trial, the trial judge will have to decide on the question of admissibility. There may be a strong argument that the story of Julianne that she was indecently assaulted by the appellant receives strong support from the evidence of Paula that she was sexually assaulted by the appellant in similar circumstances on what was virtually the same occasion. It is true that the actual sexual conduct alleged in the two incidents has no particular similarity. But there is a considerable similarity in the circumstances surrounding the incidents. It might be thought, moreover, that the circumstances as to what is alleged to have happened on the day of the offences stamps the alleged conduct of the appellant with “an underlying unity, comprehending and governing the separate acts”, Moorov v. H.M. Advocate 1930 J.C. 68 cited with approval by Lord Morris in Director of Public Prosecutions v. Boardman 1975 A.C. 421 at p.440. The alleged offences are undoubtedly “closely related in time, in circumstance and in character”, Ogg v. H.M. Advocate 1938 J.C. 152 at 159; Director of Public Prosecutions v. Boardman supra; see also The Queen v. Schlaeffer (1984) 37 S.A.S.R. 207 at 213. It might be thought that these factors render the evidence of the Paula incident highly probative in relation to the Julianne incident and that it really offends commonsense to treat Julianne's evidence as to what happened to her as unsupported when in truth it derives considerable support in logic and commonsense from what Paula claims occurred to her in similar circumstances at about the same time. On the other hand the possibility of collaboration might operate in diminution of the probative force to be attributed to Paula's evidence in relation to the Julianne charge, Hoch v. The Queen (1988) 62 A.L.J.R. 582. These will be matters for the consideration of the trial judge at a new trial, but I have felt it necessary to draw attention to them lest it be thought that the Full Court by its decision on this appeal has endorsed the view as to admissibility upon which the case has proceeded thus far.”
In this case the allegations of the assault at the riverfront and its immediate aftermath, if accepted by the jury, are relevant and admissible to prove the wounding at Ramco. Such evidence is capable of establishing a motive or explanation for the journey to Ramco. It is also capable of proving a shared violent intention of those or some of them in the van and in particular the defendants, as they headed towards Protheroe’s home. Such allegations also have the capacity to negative any plea of self-defence in respect of the Ramco incident. These allegations of fact disclosed in the declarations which are plainly relevant to Count 1 and which are also relevant and admissible in respect of Count 2 include as follows:
·the exchange between Protheroe and Hawkins at the riverfront, including Protheroe calling Robert Hawkins “a junkie”;
·the arrival at Protheroe’s spot on the riverfront, of the van containing the two defendants and the other youths who made up the same group who made the journey to Ramco 20 minutes to half an hour later;
·the confrontation and assault upon Protheroe by Jack Hawkins and the defendant Robert Hawkins with the defendant Russell Boatswain standing nearby together with the other youths’
·the escape of Protheroe from the riverfront resisted by Robert Hawkins who according to Protheroe tore his shirt trying to stop him;
·the threats uttered by Jack Hawkins, in the presence of the others, including the defendants as Protheroe was driving off – escaping - that he was going to come out home and bash him;
·the explanation given by Jack Hawkins in the van as Robert Hawkins drove from the Waikerie Hotel towards Ramco that they were going to find the fella and sort him out;
·that Protheroe lived on the road to Ramco close to the location of the Sheedy wounding;
·that Sheedy was an associate of Protheroe;
·the arrival at the location near Protheroe’s house of the van, the two defendants and the same group of youths who were with the defendants at the riverfront;
·that Jack Hawkins said to Sheedy at the beginning of the assault on Sheedy words to the effect that he had called his dad a junkie (query some confusion of the identity of Sheedy and Protheroe); and
·that another of the group accused Sheedy of having started it (again, query some confusion of the identities of Sheedy and Protheroe perhaps).
So there is one continuing event which begins at the riverfront and ends on the Ramco Road at Ramco. It is, as the Crown contend, one continuous episode. I note that the authorities indicate that where there is this sort of cross-admissibility the Court should be disinclined to order separate trials (see De Jesus v R (1986) 68 ALR 1 at 16; R v Armstrong (1990) 54 SASR 207).
The arguments of counsel for the applicant were primarily focussed upon the impermissibility of the joinder. No particular prejudice or injustice was identified in either the application or the argument such as to enliven the discretion to sever. There are of course, in this case, the usual problems of some evidence being admissible against one defendant but not against the other. In my view, appropriate directions would address any such risk of prejudice (see R v Jacobs (1988) 143 LSJS 14 per King CJ at 24-5).
Accordingly, in my view, the interests of justice as a whole were such that the trial could properly proceed on the information as it stood. I ruled accordingly.
Evidence of alleged victim Sheedy of previous threatening and/or criminal conduct
The applicant Robert Hawkins sought to have excluded the evidence of the alleged victim Peter Sheedy of:
·larceny by Robert Hawkins;
·resentment by Robert Hawkins arising from Peter Sheedy refusing to give him some of his morphine based prescription medication;
·threats and intimidation generally; and
·setting fire to grass near Sheedy’s caravan and threatening to burn his caravan down.
The Crown agreed not to lead evidence of allegations of larceny. I declined to exclude the balance of the proposed Crown evidence of Robert Hawkins previous threatening behaviour to Peter Sheedy. It was my view that such behaviour was relevant and admissible to explain why the defendant Robert Hawkins would assault Peter Sheedy. It is evidence of mutual enmity which provides a motive for the attack which is alleged. Its probative force in my view was not outweighed by any prejudicial effect (see Wilson v R (1970) 123 CLR 334; R v Peake (1996) 67 SASR 297).
Photographs
Finally, it was contended that the photographs of the victim Peter Sheedy were so confronting and graphic that the jury would be distracted from their task. I do not agree. The photographs had clear probative value. Doing grievous bodily harm was in issue and the photographs were some evidence of the infliction of such harm. In particular their effect was not unduly prejudicial (see R v O’Sullivan (1975) 13 SASR 68; R v Telford (1996) 86 A Crim R 427).
Conclusion
For the above reasons I ruled as follows:
·that the offences and the offenders, namely Robert Hawkins and Russell Boatswain were properly joined on the same Information;
·that there were no grounds to sever the counts and try them separately;
·that the evidence of pre-existing “bad blood” between Robert Hawkins and the alleged victim of the second Count, Peter Sheedy, was relevant and admissible to explain the alleged conduct and so would not be excluded; and
·that the photographs of Peter Sheedy’s facial injuries would not be excluded as they were not unduly prejudicial to the defendants.
Accordingly, I dismissed the Rule 9 application.
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