R v Richardson
[2002] TASSC 15
•11 April 2002
[2002] TASSC 15
CITATION: R v Richardson & Ors [2002] TASSC 15
PARTIES: R
v
RICHARDSON, Conway Wayne
FITZPATRICK, Christopher Leigh
PICKETT, Adrian Alwyn
DENNISON, Michael Lyndon
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NOS: 411/2000; 128/2002; 129/2002; 32/2002
DELIVERED ON: 11 April 2002
DELIVERED AT: Hobart
HEARING DATE: 9 April 2002
JUDGMENT OF: Cox CJ
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Joinder of counts - By statute - Some facts or series of offences of some or similar character.
R v Armstrong (1990) 54 SASR 207, adopted.
Aust Dig Criminal Law [722]
Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Joinder - Joint or separate trial - Generally - Prejudice cured by appropriate direction.
Aust Dig Criminal Law [725]
Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Identification evidence - Modes of proof - Identification from photographs - Generally - Discretion to exclude - Probative value outweighs prejudicial effect.
Alexander v R (1980 - 1981) 145 CLR 395; Festa v R [2001] HCA 72, followed.
Aust Dig Criminal Law [607]
REPRESENTATION:
Counsel:
Accused Richardson: K L Baumeler
Accused Fitzpatrick: M Daly
Accused Pickett: W Hodgman
Accused Dennison: C Mackie
Crown: L Mason, K Brown
Solicitors:
Accused Richardson: Butler McIntyre & Butler
Accused Fitzpatrick: Milton & Meyer
Accused Pickett: Milton & Meyer
Accused Dennison: Legal Aid Commission of Tasmania
Crown: Director of Public Prosecutions
Judgment Number: [2002] TASSC 15
Number of paragraphs: 20
Serial No 15/2002
File No 411/2000
File No 128/2002
File No 129/2002
File No 32/2002
THE QUEEN v CONWAY WAYNE RICHARDSON, CHRISTOPHER LEIGH FITZPATRICK, ADRIAN ALWYN PICKETT and MICHAEL LYNDON DENNISON
REASONS FOR JUDGMENT COX CJ
10 April 2002
The accused Conway Wayne Richardson is charged with two counts of aggravated armed robbery on 12 and 13 May 2000 respectively. By his counsel he asks me to exercise a discretion to sever the indictment and order that the first count of armed robbery on 12 May 2000 be tried now and that the other be adjourned to a future date. It is not disputed that both counts have been properly joined in the indictment pursuant to the Criminal Code, s311(2), but it is submitted that pursuant to s326(3) this is an appropriate case for an order that separate trials on each count be had. It is submitted that the accused will be prejudiced by the inclusion of the second count and that the evidence in respect of the second count is inadmissible against him on the first count and vice versa.
The accused Michael Lyndon Dennison is charged with Richardson and two others, Christopher Leigh Fitzpatrick and Adrian Alwyn Pickett, on the first count of the indictment but is not charged in respect of the second count, that being a charge against the other three accused. He seeks an order that he be tried on the first count at a future date separately from the other three accused. No application has been made by the accused, Fitzpatrick or Pickett.
According to the Crown case, the first robbery occurred in Anglesea Street, South Hobart at about 5pm on Friday 12 May 2000. Three men alighted from a stolen car and entered the TAB Agency on the corner of Anglesea and Macquarie Streets. One was armed with a revolver and all wore balaclavas concealing their faces, and gloves. Some $800 was stolen and the intruders fled. The alarm was raised and shortly thereafter the stolen car was found in a nearby dead-end street. It contained a number of items submitted to DNA analysis. Four men were seen running through the grounds of the Adult Education Centre on the corner of Weld and Macquarie Streets, having entered the grounds from the dead-end street where the stolen car was found. A witness, four days later, identified the accused Richardson from a photo board as one of the four men.
The previous night, a group of men had taken a room at Woolmers Inn in Sandy Bay Road within approximately one mile of the TAB at Anglesea Street. One gave his name as Jamie Smith of 42 Bradman Street, Clarendon Vale. The receptionist identified Mr Richardson from a photo board as the person who booked in under this name. They left on the Saturday morning, taking with them a blue bedspread. Forensic tests showed that all four accused had made some form of bodily contact with items in the hotel room (Room 20). In addition, three other men had made some form of contact. Also in the room were found windcheaters from which the sleeves had been removed. In the getaway car found near the TAB were located two home-made balaclavas. DNA testing on one matched the profile of the accused Dennison and on the other matched that of the accused Fitzpatrick. These balaclavas, the Crown claims, the evidence will show were fashioned from the sleeves of two windcheaters found at Room 20. Gloves found in that room were also tested for DNA ¾ three pairs matched the profiles of Dennison, Pickett and Richardson respectively. The fourth pair was inconclusive.
On the afternoon of Saturday, 13 May, a group of men booked into a motel at Lindisfarne, not far distant from the Beltana Hotel. Again the name of Jamie Smith of 42 Bradman Street, Clarendon Vale was given to the receptionist, who later identified Mr Richardson as that person. A car belonging to Mr Fitzpatrick was seen in the forecourt of the motel at that time. Shortly before that time, a second car was stolen from Eastlands. That car was also seen at the motel that afternoon and the number noted by the manager, who was somewhat suspicious of the arrivals.
About 9pm that night, two men entered the Beltana Bottleshop wearing balaclavas and dark brown gloves. One was carrying a sawn-off shotgun. They took the cash register and a third man drove the stolen car which was later found abandoned a short distance away. From this car the police retrieved a windcheater sleeve fashioned into a balaclava. This matched the windcheater body found at Woolmers Inn and the other sleeve from that garment, likewise fashioned into a balaclava, which had been found in the first stolen car. Early the following morning, police came to the Lindisfarne Motel, having been alerted by the manager to the presence there of the second stolen car earlier that day. They waited until the accused Richardson and a female arrived and entered the room taken earlier by the group. The police then entered and found a revolver, sums of money and the cash register from the Beltana Hotel wrapped in the blue bedspread taken from Woolmers Inn. Also found was a number of keys, two of which were capable of opening and starting each of the stolen cars. Richardson was taken into custody. He declined to be interviewed or to participate in any line-up.
Shortly after, Mr Fitzpatrick drove into the courtyard of the Lindisfarne Motel in his car and was intercepted. He gave a false name and claimed he had come in quest of cigarettes. In his car were found a number of CDs which the owner of the second stolen car claims were his property and in that car at the time of its theft. Also in that car was found a balaclava on which was a stain matching the profile of Mr Fitzpatrick. A swab of the mouth and nose area of it revealed a mixed DNA profile from which Mr Fitzpatrick could not be excluded. Items in the room at the Lindisfarne Motel revealed that bodily contact had been made with each of Richardson, Pickett and Fitzpatrick and DNA traces matching profiles of all three were found in three separate sets of gloves. Two balaclavas found in the room had DNA traces matching the profiles of each of Pickett and Richardson.
None of the accused made admissions to the police so the case against all on each charge is circumstantial.
In my view, the evidence on each charge is admissible against Richardson (I confine myself to him because he is the only one making this application for severance and I have not heard from counsel for the other two charged with the second robbery). Its admission is justified under the rules relating to similar fact evidence.
I respectfully adopt the words of my namesake Cox J of the Supreme Court of South Australia in R v Armstrong (1990) 54 SASR 207 at 215 - 216, where he said:
"The starting point for any discussion of similar fact evidence is still Makin's case, but the modern restatement and refinement of the principles began in England with Director of Public Prosecutions v Boardman [1975] AC 421 and the development was continued in Australia in a series of High Court decisions ‑ Markby v The Queen (1978) 140 CLR 108; Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 61 ALJR 1; and Hoch v The Queen (1988) 165 CLR 292. Not all judges have stated the principles in the same way but the following passage from the judgment of Gibbs ACJ (at 116‑117) in Markby expresses, I think, subject to some small qualifications, the prevailing general doctrine:
'It is unnecessary for the purposes of this case to discuss the many decisions in which the principles stated in Makin v Attorney‑General (NSW) have been expounded and exemplified. The most notable recent exposition is contained in the judgments of the House of Lords in R v Boardman. The first principle, which is fundamental, is that the evidence of similar facts is not admissible if it shows only that the accused had a propensity or disposition to commit crime, or crime of a particular kind, or that he was the sort of person likely to commit the crime charged. The second principle, which is a corollary of the first, is that the evidence is admissible if it is relevant in some other way, that is, if it tends to show that he is guilty of the crime charged for some reason other than that he has committed crimes in the past or has a criminal disposition. The concluding words of the statement cited from Makin v Attorney‑General (NSW) should be regarded only as giving examples of the second principle which is there stated; there is no "closed list of the sort of cases in which the principle operates": Harris v Director of Public Prosecutions [1952] AC 694 at 705. Moreover the words of that statement do not mean that the admissibility of the evidence depends on the line taken by the defence at the trial, that is, on whether the accused has raised or disclaimed a particular defence: Harris v Director of Public Prosecutions. It is often difficult to decide whether a particular piece of evidence is or is not admissible within these principles. However when in doubt a judge should remember that the admission of similar fact evidence is the exception rather than the rule. To be admissible the evidence must have "a strong degree of probative force" (per Lord Wilberforce) in R v Boardman, or "a really material bearing on the issues to be decided" (per Lord Morris of Borth‑y‑Gest) [1975) AC 421 at 439, citing Harris v Director of Public Prosecutions; it may not be going too far to say that it will be admissible only if it is "so very relevant that to exclude it would be an affront to common sense" (see per Lord Cross in R v Boardman; and see per Lord Hailsham of St Marylebone). The question is thus one of degree, and in answering it the judge must apply his experience and common sense. Although the judgment which the judge is required to make is to some extent discretionary, the rule of exclusion is a rule of law and not of discretion, and the principle allowing the admission of the evidence remains subject to the discretionary power to exclude it, even if legally admissible, where its prejudicial effect outweighs its probative value. In applying the test of admissibility to which I have just referred, practical assistance, in many cases, will be obtained by considering whether there is a "striking similarity" between the similar facts and the facts in issue (see R v Boardman)'."
Crown counsel has very usefully tabulated a list of similarities between the two crimes which, in my view, points strongly to the inference that the accused Richardson was involved in the commission of both crimes and which tends to dispel any defence of accidental or innocent presence at or in either motel or stolen car.
That table is as follows:
"SIMILARITIES BETWEEN THE TWO CRIMES
The Hotel Rooms
The offenders who committed the TAB robbery used a room at Woolmers Inn as their base. A room at the Lindisfarne Motor Inn was used as a base by the offenders who committed the robbery of the Beltana Bottle shop.
In both cases:
¨ the hotels were in close proximity to the crime scenes;
¨ the rooms were booked prior to the commission of the crimes;
¨ the same details were used when the hotel rooms were booked ‑ James Smith, 42 Bradman Street, Clarendon Vale;
¨ offenders returned to the hotel rooms after the commission of the crime;
¨ a number of the same telephone numbers were dialled from the hotel room;
¨ forensic evidence connects the same people with the rooms:
Woolmers Inn: fingerprints matching Dennison, Fitzpatrick, Pickett, Richardson, McCoy, Polley and Bradford were found;
Lindisfarne Motor Inn: DNA profiles matching Fitzpatrick, Pickett, Richardson, Polley and fingerprints matching Mc Coy were found.
¨ windcheater bodies were located in each room;
¨ gloves were located in each room;
¨ the rooms were paid for in cash;
¨ drug paraphernalia was located in each room.
The Stolen Motor Vehicles
In both instances a motor vehicle was stolen and used in the commission of the crime. In relation to the TAB robbery a white commodore station wagon Registration number DC4282 was stolen from the Domain the day of the TAB robbery. A Holden Commodore station wagon, registration number DH3962 was stolen from the Eastlands Shopping Centre on the day of the Beltana Bottleshop robbery.
In both cases:
¨ the car was stolen on the day of the robbery;
¨ the same type of car was stolen and there were no signs of forced entry or damage to the ignition;
¨ the car was abandoned nearby to the site of the robberies immediately after the commission of each crime.
The Robberies
In both cases:
¨ firearms were used;
¨ balaclavas fashioned from the arms of windcheaters were used;
¨ gloves were worn;
¨ the offenders left the scene in a stolen motor vehicle.
EVIDENTIARY LINKS BETWEEN CRIME SCENES
The revolver found in the Lindisfarne Motor Inn matches the description given by witnesses of the firearm used in the TAB robbery.
Balaclavas were fashioned from sleeves of windcheaters. Sleeves and windcheater bodies were located in:
Þthe stolen motor vehicle used to commit the TAB robbery (DC4282);
ÞRoom 20, Woolmers Inn;
Þthe stolen motor vehicle used to commit the Beltana Robbery (DH3962).
ÞRoom 17, Lindisfarne Motor Inn.
TOP A
-right sleeve located in the stolen motor vehicle used to commit the TAB robbery (DC4282);
- body located in Room 20, Woolmers Inn;
-left sleeve located in the stolen motor vehicle used to commit the Beltana Robbery (DH3962).
TOP B
- left sleeve not located;
- body located in Room 20, Woolmers Inn;
- right sleeve located in Room 17, Lindisfarne Motor Inn.
TOP C
- left sleeve located in vehicle owned by Fitzpatrick (BU4898);
- body located in Room 17, Lindisfarne Motor Inn;
- right sleeve located in Room 17, Lindisfarne Motor Inn;
- extra fabric from windcheater located in Room 17, Lindisfarne Motor Inn.
TOP D
- left sleeve located in Room 17, Lindisfarne Motor Inn;
- body located in Room 17, Lindisfarne Motor Inn;
-right sleeve located in the stolen motor vehicle used to commit the TAB robbery (DC4282).
The robberies were committed in the Hobart area, within 28 hours of each other.
The blanket taken from Unit 20 at Woolmers Inn was located at Room 17 of the Lindisfarne Motor Inn.
The keys located at Room 17 of the Lindisfarne Motor Inn opened the drivers doors of the stolen motor vehicles used in the commission of the TAB robbery and the Beltana robbery.
A black backpack was described by two of the witnesses relevant to the TAB robbery and a black backpack was located in BU4898, the car intercepted in the forecourt of the Lindisfarne Motor Inn which was driven and owned by Fitzpatrick.
A green checked shirt was described by witnesses relevant to TAB robbery and a green checked shirt was located at Room 17 of the Lindisfarne Motor Inn."
I conclude therefore that this is an appropriate case for the joinder of both counts and that there is no proper basis to grant the application for severance made by the accused Richardson.
As to the accused Dennison, the evidence of the activities of the other accused after Friday 12 May and the incidents of Saturday 13 May on the Eastern Shore are not admissible against him on his trial on count 1. His counsel submits that he will be prejudiced by his association with them and tarred with the same brush, as the evidence against them on count 2 will adversely affect them in respect of count 1. I think an appropriate direction will cure any such apprehended prejudice. His application for a separate trial is refused.
I have to rule on an application to exclude the evidence of Mr Douglas Grubert purporting to identify the accused Richardson from a photo board as one of the four men who ran through the grounds of the Adult Education property at Macquarie Street, Hobart on Friday, 12 May 2000 shortly after the TAB robbery. He had all four men under observation for about 10 - 12 seconds in circumstances where he made a conscious decision to attempt to remember any distinguishing features about them for future identification.
Three days later he was shown a series of photo boards and he selected a photo of the accused Richardson as one he believed to be among the four persons. The case of Alexander v R (1980 - 1981) 145 CLR 395 makes it clear that evidence of this kind is admissible, but that a trial judge has a discretion to exclude it if its probative value is exceeded by the prejudice its reception may cause the accused. This was not a case in which the preferable course of conducting a line-up could be conducted because the accused Richardson exercised his right not to participate in one. There was no impropriety or corner-cutting by the investigators in adopting the course they did. Nevertheless, the use of a photo board may well suggest that the accused is known adversely to the police and the "rogues gallery" effect is capable of causing the accused Richardson prejudice. On the other hand, he had been taken into custody in the early hours of Sunday, 14 May at the Lindisfarne Motel and the inclusion of his photograph in a photo board presented to Mr Grubert on Tuesday, 16 May is not necessarily indicative of his having been adversely known to police prior to 14 May 2000.
Mr Grubert's identification was not made with 100 per cent certitude, but in his evidence on the voir dire conducted before me he maintained that he picked out the person who he genuinely believed was one of the people he saw. Counsel submitted that there were a number of weaknesses in his evidence and, of course, there were. Identification evidence is notoriously suspect and a jury must be carefully cautioned about the need to scrutinise it before acting upon it, but as Gleeson CJ pointed out in Festa v R [2001] HCA 72 at par14:
"If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. … The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility.
At par19, he cited from the decision of Gibbs CJ in Alexander v R (supra) at 402:
"The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused … "
The probative value of evidence tending to support the accused Richardson's presence in close proximity to the abandoned stolen car, itself not far away from the scene of the TAB robbery a short time after that event, is very great. In my opinion, it far outweighs the prejudicial effect of the jury seeing a photo board on which his image is included when they will be aware that at the time of the board being prepared Richardson was already in custody and the evidence before me does not enable me to find the provenance of the accused's photograph. It may be one which was on police files prior to the robbery or taken after his arrest. If the latter is the case, possible evidence to that effect can be led by the Crown and the prejudice will be eliminated. If that is not established by the evidence, the observation can be made to the jury that at that time the accused was in custody and liable to being photographed. That way the prejudice will be significantly reduced.
The same objection was initially made to the evidence of Miss Alvi and Mr and Mrs Seen, the first named being the receptionist at Woolmers Inn and the second and third named being the proprietors of the Lindisfarne Motel. All three accused identified Richardson from photo boards shown to them after Richardson's arrest. Once again, the evidence is cogent, although Richardson's presence at the Lindisfarne Motel where he was apprehended is unlikely to be disputed. Nevertheless, it is relevant and the same considerations apply in respect of prejudice.
The evidence of all four witnesses will be admitted.
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