R v Mark Sandery, Darren Kelly, Warren O'Neill and Christopher Platt No. Sccrm-97-183 Judgment No. 6293 Number of Pages 9 Criminal Law

[1997] SASC 6293

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DEBELLE, J

Criminal law - jurisdiction, practice and procedure - information, indictment or presentment - criminal law - application for separate trial - eight accused jointly charged with various offences - joint enterprise - whether funding for legal aid relevant to assessment of application - relevant principles - applications dismissed. R v Harbach (1973) 6 SASR 427; R v Glover
(1987) 46 SASR 310; R v Collie (1991) 56 SASR 302; Webb v The Queen (1994) 181 CLR 41, applied.

ADELAIDE, 28 July 1997 (hearing), 11 August 1997 (decision)

#DATE 11:8:1997

#ADD 8:9:1997

R:

Counsel: Ms Patricia Kelly With Mr P A Leask

Solicitors: DPP (SA)

Accused Mark Sandery:

Counsel: Mr J A Richards

Solicitors: J A Richards

Accused Darren Kelly

Counsel: Mr D Sprod

Solicitors: Scammell & Co

Accused Warren O'Neill:

Counsel: Mr Lang

Solicitors: Aboriginal Legal Rights Movement Inc

Accused Christopher Platt:

Counsel: Ms C Hicks

Solicitors: C M Hicks

Order: applications dismissed.

DEBELLE J

On 6 May 1996 events occurred at the Yatala Labour Prison ("Yatala") which resulted in eight prisoners being jointly charged with a series of offences. All of the accused were prisoners at Yatala. I set out the offences charged against each accused as stated in the information.

First Count

False Imprisonment

Mark Andrew Sandery, Anthony Von Doussa Rankine, Darren Michael Kelly, Paul John Page, Warren Rodney O'Neill, Robert Malcolm Young, Christopher Platt and Adrian Charles Rosa on the 6th day of May, 1996 at Northfield, together with others, unlawfully imprisoned Wayne Bruce Cooper and detained him for about 30 minutes against his will.

Second Count

False Imprisonment

Mark Andrew Sandery, Anthony Von Doussa Rankine, Darren Michael Kelly, Paul John Page, Warren Rodney O'Neill, Robert Malcolm Young, Christopher Platt and Adrian Charles Rosa on the 6th day of May, 1996 at Northfield, together with others, unlawfully imprisoned Noel Christopher Kelly for about 6_ hours and detained him against his will.

Third Count

False Imprisonment

Mark Andrew Sandery, Anthony Von Doussa Rankine, Darren Michael Kelly, Paul John Page, Warren Rodney O'Neill, Robert Malcolm Young, Christopher Platt and Adrian Charles Rosa between the 5th day of May, 1996 and the 8th day of May, 1996 at Northfield, together with others, unlawfully imprisoned John Edward Werchon and detained him for about 11 hours against his will.

Fourth Count

False Imprisonment

Mark Andrew Sandery, Anthony Von Doussa Rankine, Darren Michael Kelly, Paul John Page, Warren Rodney O'Neill, Robert Malcolm Young, Christopher Platt and Adrian Charles Rosa on the 6th day of May, 1996 and the 8th day of May 1996 at Northfield, together with others, unlawfully imprisoned David Alexander Keily for about 11 hours against his will.

Fifth Count

False Imprisonment

Mark Andrew Sandery, Anthony Von Doussa Rankine, Darren Michael Kelly, Paul John Page, Warren Rodney O'Neill, Robert Malcolm Young, Christopher Platt and Adrian Charles Rosa between the 5th day of May, 1996 and the 8th day of May, 1996 at Northfield, together with others, knowing that they had no lawful authority to do so, intentionally or with reckless indifference damaged the property of the South Australian Government, such damage amounting to about $74,147.35.

Sixth Count

Assault Occasioning Actual Bodily Harm (Section 40 of the Criminal LawConsolidation Act, 1935)

Mark Andrew Sandery, Anthony Von Doussa Rankine, Darren Michael Kelly, Paul John Page, Warren Rodney O'Neill, Robert Malcolm Young, Christopher Platt and Adrian Charles Rosa on the 6th day of May, 1996 at Northfield, together with others, assaulted Wayne Bruce Cooper, thereby occasioning him actual bodily harm.

Seventh Count

Assault Occasioning Actual Bodily Harm

Mark Andrew Sandery, Anthony Von Doussa Rankine, Darren Michael Kelly, Paul John Page, Warren Rodney O'Neill, Robert Malcolm Young, Christopher Platt and Adrian Charles Rosa on the 6th day of May, 1996 at Northfield, together with others, assaulted Noel Christopher Kelly, thereby occasioning him actual bodily harm.

Eighth Count

Assault Occassioning Actual Bodily Harm

Mark Andrew Sandery, Anthony Von Doussa Rankine, Darren Michael Kelly, Paul John Page, Warren Rodney O'Neill, Robert Malcolm Young, Christopher Platt and Adrian Charles Rosa between the 5th day of May, 1996 and the 8th day of May, 1996 at Northfield, together with others, assaulted John Edward Werchon, thereby occasioning him actual bodily harm.

Ninth Count

Assault Occasioning Actual Bodily Harm

Mark Andrew Sandery, Anthony Von Doussa Rankine, Darren Michael Kelly, Paul John Page, Warren Rodney O'Neill, Robert Malcolm Young, Christopher Platt and Adrian Charles Rosa between the 5th day of May, 1996 and the 8th day of May, 1996 at Northfield, together with others, assaulted David Alexander Keily, thereby occasioning him actual bodily harm.

There are six other counts on the information. Three charge Sandery with assaults on three prison officers and three charge Rankine with assaults on three other prison officers.

The accused Sandery, Kelly, Page, O'Neill and Platt have each applied for a separate trial. The application was listed for hearing on 28 July 1997. When the application was called on, Mr Vadasz, who appeared for Page, informed me that his instructions had been terminated. He was given leave to withdraw. No submissions were therefore presented on behalf of Page. I have adjourned his application to enable him to obtain legal representation.

I decided to hear argument from the other applicants, nothwithstanding that Page could not proceed with his application. I decided to do so because of the imminence of the trial and because each application is separate from the other and so must receive separate consideration. Those reasons have also led me to publish my decision notwithstanding that I have not heard any submissions on behalf of Page.

These proceedings were initially instituted in the District Court. They have been transferred to this court in respect of each of the accused except Rosa. A bench warrant has been issued in respect of Rosa.

I summarise the prosecution case. The accused were all housed in B Division at Yatala. B Division is a building comprising three floors. It houses about 58 prisoners. Different groups of prisoners in B Division are segregated from one another in different parts of the building. One group of prisoners are called "protectees". They are prisoners imprisoned for sexual offences, prisoners who are unpopular with prisoners, or prisoners who are protected for some other reason. In May 1996 there was a degree of unrest among some prisoners in B Division concerning protectees.

The second floor B Division is known "B Top". It houses high and medium security prisoners. It is divided into two sections, B Top West and B Top East. B Top West houses about 31 prisoners. Access to the first and second floor of the building is gained by way of a staircase from the ground floor which is located just outside the barriers across the entry to the unit on the east and west side of the building. Access is also possible by way of a lift. However, prisoners usually use the stairway and they were using it on 6 May. Access to B Top West is gained by entering the unit through a doorway known as a barrier. The barriers are doors which need to be open manually using a key. The entrance to the wings within a unit is also controlled by barriers.

About 1.15pm prisoners from B Top West were, as part of the daily routine, transferred to a recreational yard. At about 3.15pm the prisoners began to return from the recreational yard to their respective units. Prison officers Werchon, Cooper, Kelly and Keily were on duty in B Top West when the prisoners housed in that part of B Division returned. Werchon and Kelly stood by the entrance barrier to the unit. Kelly unlocked the door while Werchon stood nearby waiting for the prisoners to enter the unit. Cooper was in the manager's office inside the unit. Keily was in the toilet at the officer station within the unit. As the prisoners arrived at the unit, Rankine yelled "get them". The prisoners then attacked and assaulted Werchon and Kelly. Cooper was attacked and assaulted in the manager's office. Keily was attacked and assaulted when he came out of the toilet. Each of these four officers was later assaulted. Other prison officers attempted to contain the situation on the second floor of B Division. Some of them were assaulted. At one stage the barrier to the unit was closed and secured.

The four prison officers I have named were held as hostages. Cooper was released after about 30 minutes. However, Kelly was detained against his will for 6_ hours and Werchon and Keily were detained against their will for 11 hours. The detention of each of these four officers are the subject of the first four counts. The fifth count alleges damage to different parts of B Division and equipment and furniture there. The sixth to ninth counts allege assaults on the four prison officers I have mentioned.

A common issue

There is one issue which was common to the applications by Sandery, Kelly and Platt. It concerns the funding for their legal representation. Those accused are in receipt of financial assistance from the Legal Services Commission. The Commission is also providing financial assistance to Page and, perhaps, Rankine. Mr A J Hunt, who is the Commission's manager of assignments, gave evidence. His evidence was that the matter had been assessed as an expensive case under the Commission's guidelines. Funding for an expensive case, where there is more than one accused, is provided up to a maximum amount of $75,000. However, that maximum is not increased if there are more than two persons who are jointly charged. Thus, the sum of $75,000 is to be divided between the persons assisted by the Legal Services Commission.

So far, $19,198 has been spent, leaving $55,802 as funding for the trial. These amounts are subject to any claims for legal work to date which have not been submitted to the Commission. On the assumption that the Legal Services Commission provides funding for the defence of Page and Rankine, there would be a little over $10,000 available for the funding of the defence of each those accused. It was submitted by counsel for Sandery that, whether there was a joint trial or a separate trial, the funding cap would be reached and there may be a number of Dietrich applications.

Counsel for Kelly and Platt submitted that, if there were separate trials, it might be possible to avoid reaching the funding cap. Counsel suggested that, if there were separate trials, the areas of dispute would be narrowed and the trials would be considerably shorter. These were, I think, over optimistic predictions. In the course of argument, there seemed to be general understanding that there was a real risk that, even if there were separate trials, there was a real potential to absorb all the available funds before the trial of each accused had been completed.

I think the applications for separate trials should be determined without any consideration of the funding available. In my view, even if there were separate trials, the cap would be reached before the trials of each of the accused had been completed. The available funding should be put to one side. The difficulties with funding will have to be addressed should any of the accused make a Dietrich application.

Relevant Principles

The relative principles are well settled and it is sufficient to refer to the decisions of this Court in R v Harbach (1973) 6 SASR 427 at 432; R v Glover (1987) 46 SASR 310 at 312; R v Collie (1991) 56 SASR 302, 307-310. I mention three factors identified by King CJ in R v Harbach at 432. First, where accused persons are charged with committing a crime jointly, prima facie there should be a joint trial. The prosecution case is that these eight accused were engaged in a joint enterprise which involved taking prison officers as hostage, assaulting prison officers, and damaging prison property. For the reasons which appear later, it is desirable that there should be a joint trial. The second is that a joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against other accused, although admissible against one or more, will be before the jury. It is apparent that in this case some of the evidence will be admissible against one or more accused but not against others. I have examined the declarations. It is not so extensive a difficulty as to require separate trials. The third is that a joint trial may be ordered notwithstanding that one or more accused is trying to blame others for the crime. This does not appear, at present, to be the case in this trial.

As a general rule, participants in an incident or series of incidents which has resulted in the commission of criminal offences ought to be tried together: see R v Glover at 312 where King CJ expressed the principle in these terms:

"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 interest 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 person 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."

His Honour reiterated those remarks in R v Collie at 309.

The events at Yatala on 6 May 1996 formed a continuous course of events and they give rise to these charges. It is alleged that each of the accused was involved in these events as a joint enterprise and at different stages each performed a particular role in the execution of that enterprise. The events span a relatively long time and there are some fifty witnesses. It would be an extremely inefficient and a waste of time and other resources if there were separate trial for each of these four accused. There would be a great deal of cost and inconvenience if separate trials were ordered. Moreover, the prosecution is entitled to prove the total picture. Regard should also be had to the convenience of witnesses. Four of the witnesses were assaulted and were detained against their will. They are prison officers Cooper, Werchon, Kelly and Keily. It is reasonable to infer from their statements that they were extremely apprehensive as to their safety in the course of these events. They should not be required to relive the events several times over when giving evidence. There was no real issue on any of these matters. Instead, the applications were in large part grounded on particular aspects of the evidence and concerns that there was a risk of prejudice to three of the applicants. The potential for prejudice to any one accused must of course be closely examined. I turn to examine the separate arguments advanced on behalf of each applicant.

Sandery

The only ground relied in this application was the perceived difficulty in funding the defence. For the reasons already mentioned, it is more appropriate for the accused to make a Dietrich application. In the end, the application was not pressed. I dismiss the application.

Kelly

It was submitted on behalf of Kelly that, if he were tried separately, a number of factual issues and a good deal of evidence could be agreed and so enable a shorter trial. Mr Sprod who appeared for Kelly did, however, acknowledge that, even if there were separate trials, the trial of other accused persons might not be completed within the funding cap. For the reasons already expressed, the question of funding should be put to one side when considering this application.

Mr Sprod then submitted that the evidence which would be lead by the prosecution against Sandery and Rankine respectively on the last six counts in the information do not concern Kelly and would cause prejudice to him. They were all serious assaults, he said, and would prejudice his client in meeting a prosecution case which, seeks to prove a joint enterprise. The evidence relating to the assaults would, he said, have a prejudicial effect on the fairness of the trial of Kelly. I do not think there is sufficient force in the argument to justify ordering a separate trial. According to a number of witnesses, Kelly was playing a significant part in the events of 6 May. His involvement was fairly extensive. There is nothing, therefore, which justifies a separate trial. In any event, the potential for prejudice can be satisfactorily dealt with by appropriate directions in the course of the trial and in the summing up. Depending on the manner in which the trial proceeds, it might be appropriate to direct the jury concerning issues in which all accused are jointly charged and, once verdicts have been returned, direct the jury separately on the counts with which Sandery and Rankine are charged, that is to say, to ask the jury separately to consider the charges against each of those accused one after the other. The appropriate procedure can be better addressed at the end of the evidence.

The final matter relied on by Mr Sprod concerned the evidence of a co-accused Young. He has made a statement in which he says that those who assaulted Cooper, one of the prison officers, had their heads covered by T-shirts and jumpers. There is other evidence that Kelly wrapped a T-shirt around his head. The prosecution also alleges that Young identified Rankine and Kelly as persons who attacked Keily, another prison officer. Mr Sprod emphasised the dangers of relying on evidence from a co-accused. This is another matter which can, if necessary, be dealt with by an appropriate direction. The question whether a direction should be given and the content of that direction would be best considered at the end of the evidence.

For these reasons, I dismiss Kelly's application.

Platt

The first ground on which Platt relied were the difficulties raised by the funding cap. The estimate made on his behalf as to the length of the trial, if he were tried separately was unrealistic. For the reasons given earlier the question of funding is not relevant to the question of a separate trial in the circumstances of this particular case.

The next ground relied on concerned the amended information dated 28 July 1997. The initial information had charged Platt with only two offences, namely, false imprisonment of Werchon and a common assault upon Werchon. The amended information charges Platt with counts 1-9. It was submitted that the amendment had been made to bolster the allegation of a joint enterprise and as a response to the application for a separate trial. The submissions were so general and lacking in particularity that they do not assist in determining whether there should be a separate trial. These submissions do not, standing alone, justify a separate trial.

There was no evidence, it was said, to implicate Platt in the joint enterprise. It was submitted that the evidence against Platt is significantly different from that against the other accused. Two witnesses only give direct evidence as to his alleged involvement. They are Werchon and Marsh.

In his declaration Werchon says that, at one stage relatively early in the events of 6 May, Platt stood in front of him armed with a screwdriver and that a little later Platt taped his ankles to a chair on which other prisoners had placed him. Marsh alleges that Platt assaulted prison officer Keily by hitting him on the back and back of his legs with two broom sticks. By contrast, it was said, there is a substantial body of evidence involving the other accused. None of this is direct evidence against Platt. Thus, it was said, there would be a great deal of prejudice to the fair trial of Platt in that the jury might not have regard only to the evidence against Platt but rely on the evidence against all of the other accused and wrongly convict him of offences which he had no involvement. The risk of prejudice could not, it was said, be avoided by directions to the jury.

There is a good deal of force in the submission. However, I do not agree that it will not be possible to avoid any potential prejudice by appropriate direction. It will be possible to give quite explicit directions as to Platt's involvement or lack of involvement in the particular offences the subject of the information. Further, there is a real risk of inconsistent verdicts if a separate trial were ordered. For these reasons I dismiss the application.

O'Neill

The thrust of the submissions made on behalf of O'Neill is that the case against him is circumstantial and based on scant evidence.

A number of prison officers identified O'Neill as being involved at different stages in the events of 6 May 1996. They were prison officers Werchon, Cooper, Keily, Kelly, Weber, Hopley, and Kearney. The prosecution case against O'Neill is that he was one of the group which initially attacked Werchon, that he later assisted others in detaining Werchon, and that, at one stage, he splashed flammable liquid on prison bedding which was being used as a barricade.

Werchon identifies O'Neill as being one of the group which was leading the prisoners back to the unit at B Top West. He does not, however, identify him as one of the assailants. Werchon also says that later, while he was being detained, he saw O'Neill with Rankine, Sandery and Trengrove seated at a table, smoking and talking. Later still, according to Werchon, O'Neill assisted Page, Kelly and Rosa to "guard" him and prison officer Keily after they had been moved to a cell. Later still, when they were removed from the cell and made to sit in another part of the wing, they were "guarded" by O'Neill, Kelly, Page and Rosa.

Cooper had been hospitalised after suffering a heart attack and had returned to duty only a short time before 6 May. He identified O'Neill as being one of two prisoners who had asked him if he had had a heart attack.

Keily says that O'Neill sat with him while he was detained in a cell. He also says that in the last quarter hour before he was released, O'Neill said to him that it would not be long before he would be released.

Kelly saw O'Neill pouring a liquid over mattresses and other bedding material which was being used to create a kind of barricade against the fire escape from B Top West. From observations which he made while detained by prisoners, Kelly perceived that eight prisoners were exercising control over the other prisoners. He ranked them in a kind of hierarchy according to their involvement. He ranked O'Neill as the sixth in that hierarchy.

In his declaration Weber said that he saw O'Neill punch a prison officer. At the committal he identified that prison officer as Werchon. He was also asked whether he saw anyone else punching Werchon. He said he saw a prisoner of aboriginal decent on top of Werchon but could not definitely say it was O'Neill. There is obviously room for concern about his identification of O'Neill as the person assaulting Werchon.

Hopely states that he identified O'Neill as a prisoner who broke a large window. However, on the face of it, his evidence, at least at this stage, appears to be of little probative value and I have no regard to it.

Kearney is manager of E Division. At one stage he was negotiating with a group of prisoners concerning medical treatment for prison officers who had been taken hostage. He spoke to a group of prisoners who included Rankine, Kelly, Sandery, Page and O'Neill.

It is apparent, notwithstanding the difficulties which the prosecution might have with the evidence of Weber and Hopely, there is nevertheless a body of evidence which, if established, shows that O'Neill was taking an active part at different stages in the events of 6 May. Although the evidence as to his involvement might not be as extensive as the evidence concerning others of the accused, I do not think that he should be tried separately from his co-accused. The question whether he was involved in a joint enterprise is for the jury to determine. This is not the occasion to consider what was almost a submission of no case to answer. It there is, any potential for prejudice, it can be avoided by directions to the jury. I therefore dismiss his application.

An Application for Trial by Judge Alone

Sandery has also applied for trial by judge alone. As the application by Sandery for a separate trial has been dismissed and as all of the accused have not concurred in seeking a trial by judge alone, this application must be dismissed: see s7(3) of the Juries Act, 1927.