R v Leonard, Stapleton, Woodroffe - [2007] SADC 50

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LEONARD, STAPLETON, WOODROFFE
[2007] SADC 50
Ruling of His Honour Judge Chivell
8 May 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
Applications for separate trials - three defendants jointly charged with theft and unlawful possession - one defendant solely charged with deception - one defendant facing bulk of charges - prosecution case against him stronger and more voluminous - consideration necessary to justify separate trials - prosecution concedes severance of unlawful possession appropriate - those counts severed - applications otherwise refused.
Criminal Law Consolidation Act, 1935 s278, referred to.
R v Webb and Hay (1994) 73 A Crim R 258; R v Patsalis and Spathis (1999) 107 A Crim R 432; R v Collie & Anor [2006] SASC 4; R v Collie, Kranz and Lovegrove (1991) 56 SASR 302, applied.

R v LEONARD, STAPLETON, WOODROFFE
[2007] SADC 50

Kim Duncan Leonard is charged with a total of 11 offences. Counts 1 and 3 to 8 allege theft of various trucking equipment. Counts 9 to 12 allege, as alternative charges, unlawful possession of some of the same equipment.
Darren Stapleton is jointly charged with theft (Counts 1, 3 and 4) and unlawful possession (Count 9).
Jennifer Woodroffe is jointly charged with theft (Count 1), and unlawful possession (Count 9), and is solely charged with deception (Count 2).
Very briefly, Leonard, Stapleton and Woodroffe are alleged to have “rebirthed” a stolen prime mover cabin using details from a written‑off cabin of the same type (Count 1); Woodroffe is alleged to have filed a false document in order to have it registered (Count 2); Leonard and Stapleton are alleged to have “rebirthed” a stolen taut‑liner trailer by attempting to remove all identification markings, and swapping a refrigeration unit with another trailer (Counts 3 and 4); Leonard is alleged to have “rebirthed” a stolen refrigerated trailer with details from a written‑off trailer (Count 5); Leonard is alleged to have “rebirthed” a stolen Holden utility by altering a chassis number (Count 6); and to have stolen two engines (Counts 7 and 8).
Ms Griffith, for the Director of Public Prosecutions, conceded that Counts 9 to 12 should be severed. That leaves a number of applications pursuant to Rule 9.
The Leonard Application
Leonard applies for a separate trail from Woodroffe in respect of Count 2. His counsel, Mr Deegan, argued that because Woodroffe is the sole defendant in relation to that count, his client would be prejudiced by an inability to cross‑examine Woodroffe. This argument is misconceived. It has always been the law that where evidence called by one accused tends to incriminate the other, there is a right to cross‑examine. For example, my edition of Archbold, “Pleading, Evidence and Practice in Criminal Cases”, which is the 29^th Edition published in 1939, states at p.500-501:
Where two prisoners are jointly indicted and evidence is called on behalf of one prisoner which tends to criminate the other, the latter is entitled to cross‑examine the witness. R v Woods 6 Cox 224 ..... The reason for the rule is that such evidence, though given in defence of one prisoner, becomes evidence for the prosecution against the other.
The learned author of Cross on Evidence, 6^th Edition, published in 2000, writes at [17475]:
A witness ..... is probably liable to be cross‑examined, not merely by the opponent of the party calling the witness, but also by all the other parties ..... All parties probably have the right to cross‑examine witnesses not called by them, whether or not the witness is a party, whether or not the witness has given evidence against the party seeking to cross‑examine, and even though the witness is a co‑accused.
As to one accused cross‑examining another, see Evidence Act, 1929 (SA) s18(1)(d)(iv) and the notes thereon in Lunn, Criminal Law South Australia at [1080.9].
Mr Deegan, counsel for Leonard, abandoned his argument that a joint trial with Woodroffe would allow the admission of evidence not otherwise admissible against Leonard.
Finally, Mr Deegan argued that his client may be inhibited from giving evidence by virtue of the fact that Woodroffe, who has no prior convictions, is jointly charged. I reject that as a ground for separate trial. It is commonplace that jointly charged accused have different antecedents.
The application for a separate trial by Leonard has no foundation and I dismiss it.
The Stapleton Application
Stapleton seeks a separate trial from both Leonard and Woodroofe. His counsel, Mr Longson, argued that:
·his client was a mere employee of Leonard;
·his participation in the alleged crimes was, when compared with Leonard’s, subsidiary;
·the evidence against Stapleton is much weaker than the evidence against Leonard;
·the evidence to be led against Leonard is highly prejudicial and not admissible against Stapleton;
·there is a danger of a finding of guilt by association which cannot be met by adequate jury direction.
The Woodroofe Application
The application by Woodroffe is made on similar grounds to that of Stapleton, so I will deal with them together.
Mr Ey, counsel for Woodroffe, argued that:
·the evidence against her is significantly different from that against Stapleton and Leonard, and the latter is stronger and more voluminous;
·Woodroffe is a person of good character and will put it in issue;
·Woodroffe’s trial, if separated, would only take a few days, whereas she will be faced to sit through a long trial if she remains jointly charged;
·jury directions in a joint trial would be complex and confusing.
Mr Ey referred to the remarks of Deane J in R v Webb and Hay (1994) 73 A Crim R 258 at p285-6, about too much insistence on the desirability of consistent verdicts tending to subvert the requirement of proof beyond reasonable doubt.
In the same judgment, Toohey J, with whom Mason CJ, McHugh J and Deane J concurred, said at [293]:
King CJ dealt with this ground by pointing out 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 where each seeks to cast the blame on the other”. What King CJ referred to as “strong reasons of principle and policy” were discussed by his Honour in Collie. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. 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.
The Prosecutor’s Arguments
Ms Griffith, who appeared for the Director of Public Prosecutions, conceded, as I have already mentioned, that severance of Counts 9-12 is appropriate. She opposed the other applications made.
Ms Griffith argued:
·the charges are properly joined in that they are founded on the same facts and also form part of a series of offences of the same or similar character (see s278, Criminal Law Consolidation Act, 1935);
·much of the evidence on each charge is cross‑admissible to each of the other charges to prove intent, knowledge, to negative innocent involvement and to show a system of rebirthing the vehicles;
·the decision of the High Court in R v Patsalis and Spathis (1999) 107 A Crim R 432 supports the submission that where the evidence against the applicant is significantly weaker than that against a co‑accused, and where the evidence against the other accused is highly prejudicial, and where there is a danger that the weaker case will be strengthened by the prejudicial material, then a separate trial may be ordered if the applicant can show positive injustice (see the judgment of Kirby J at [12], quoting Hunt J in R v Middis).
In that case, Kirby J repeated with approval the passage I quoted above from Webb and Hay, and said that the list formulated by Hunt J was not exhaustive (see [12]). The “touchstone” remains “is there a risk of positive injustice to the accused .....”
R v Collie & Anor [2006] SASC 4 is a classic example of a “cut‑throat defence”. The case against Mr Collie was entirely circumstantial. Mrs Collie, however, had admitted she was with her husband when he shot the victims. Bleby J accepted, among other things, that a jury would not be able to exclude from their minds Mrs Collie’s admissions, which were inadmissible against Mr Collie, when considering a case against him.
After considering a number of authorities, Bleby J, “in the rather exceptional circumstances of this case” (at [69]) granted the application by Mr Collie for a joint trial. In doing so, his Honour was doing no more than applying the principles enunciated in Webb and Hay quoted above, and, in particular, that “ordinarily persons accused of committing a crime jointly ought to be tried jointly”. (King CJ in R v Collie, Kranz and Lovegrove (1991) 56 SASR 302 @ 309-310.
In my opinion, neither Stapleton nor Woodroffe have demonstrated any positive injustice which will inevitably result from a joint trial. Much of the evidence of the surrounding circumstances is cross‑admissible on each count. It is appropriate to assume that the jury will be capable of understanding such directions. I do not accept Mr Ey’s submission that the directions will be so complex and confusing that they will not be understood. None of the evidence which will be led against Leonard, and which is inadmissible against them will be so prejudicial that it cannot be dealt with by appropriately worded warnings to the jury.
Ms Griffith intimated that some of the evidence in the depositions will not be led against Leonard. If this situation changes, then the accused are free to make a further application for severance.
That being the case, I am not convinced that Kirby J’s “touchstone” of positive injustice to either accused has been demonstrated.
There are strong reasons of public policy for proceeding with a joint trial. There are no grounds for exercising my discretion under s278(2) of the Criminal Law Consolidation Act to order otherwise.
Stapleton’s and Woodroofe’s applications are also refused.
Accordingly, I order that the joint trial of the three accused on Counts 1 to 8 proceed. I order that Counts 9 to 12 be tried separately.