R v Tracey (No 1)

Case [2005] SASC 355

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Voir Dire)

R v TRACEY & ORS (NO 1)

Reasons for Ruling of The Honourable Justice Nyland

22 September 2005

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL

Six accused charged jointly on the same information - three charged with murder and three charged with impeding the investigation of an offence - whether appropriate for murder charge to be tried with impeding charges - all charges arising out of the same body of evidence - admissibility of evidence - whether accused would be deprived of right to a fair trial - length of trial - inconvenience to witnesses - complicated jury directions in single trial - different nature of the murder charge to the impeding charges - order that impeding charges be separated from murder charge.

Criminal Law Consolidation Act 1935 (SA) s 278, referred to.
R v Assim [1966] 2 QB 249; R v Collie, Krantz and Lovegrove (1991) 56 SASR 302, applied.
Mawaz Kahn & Anor v The Queen [1967] 1 AC 454, distinguished.
Crane v Director of Public Prosecutions [1921] 2 AC 299; R v Liddy (No 2) (2002) 84 SASR 231; R v Barrell and Wilson (1979) 69 CrAppR 250; Liddy v R (2002) Leave to Appeal Refused HCA 14 August 2002; R v Farrell and Cotton (1990) 48 ACrimR 311; R v Middis NSWSC, Hunt J, 27 March 1991 (unreported); The Queen v Conlon & Anor (1982) 30 SASR 176, discussed.
The Queen v Rigney (1975) 12 SASR 30; The Queen v Hogan & Ors (1990) 159 LSJS 297; R v Smith, Turner & Anor (1994) 63 SASR 123; R v Trotter & Ors (1992) 58 SASR 223; R v Clothier and Williams (2001) 122 ACrimR 353; R v Bunting & Ors (No 3) (2003) 230 LSJS 410; Webb and Hay v R (1994) 181 CLR 41; The Queen v Darby (1982) 148 CLR 668; R v Guldur (1986) 8 NSWLR 12; R v Patsalis and Spathis (1999) 107 ACrimR 423; Kamleh v The Queen (2005) 213 ALR 97, considered.

R v TRACEY & ORS (NO 1)
[2005] SASC 355

Voir Dire Ruling as to Application for Separate Trials:

  1. John Michael Craig Tracey, Joshua Heath Considine, Michael Andrew Wallace, Naomi Sarah Wallace, Shivonne Anne Tracey and Christine Yvonne Dal Santo have been jointly charged on information with offences arising out of events which took place on 31 July 2002 at Elizabeth Downs, which resulted in the death of Stuart Watson. 

    The charges against the accused:

  2. Count 1 on the information alleges that John Tracey, Joshua Considine and Michael Wallace murdered Stuart Watson.

  3. Count 2 is a charge against Naomi Wallace of impeding the investigation of an offence on 15 August 2002, and Count 3 is a further charge of impeding on 19 August 2002 against Naomi Wallace for providing false information to the police on…

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AGLC
R v Tracey (No 1) [2005] SASC 355
Case
[2005] SASC 355
Decision Date

CaseChat Overview and Summary

The case of R v Tracey (No 1) involved six individuals charged jointly on the same information, with three of them charged with murder and the other three charged with impeding the investigation of an offence. The primary legal issue the court had to address was whether it was appropriate for the murder charge to be tried concurrently with the impeding charges. The court considered factors such as the admissibility of evidence, the risk of depriving the accused of a fair trial, the length of the trial, and the inconvenience to witnesses. The court also noted the complexity of the jury directions in a single trial and the differing nature of the murder charges compared to the impeding charges.

In determining the appropriate course of action, the court referenced previous cases such as R v Collie, which highlighted the "gravely prejudicial character of the statements attributed to David Carter." The court concluded that a joint trial of the three accused charged with murder, without the other charges, would still involve a substantial body of inadmissible evidence against all three, necessitating careful jury directions. To simultaneously consider directions related to evidence arising from the impeding charges, which are of a different nature to the murder charge, would accumulate complicated directions and create extreme difficulty for the jury to understand what evidence was properly admissible for each accused. This, in turn, would create a substantial risk of depriving the accused of a fair trial.

The court ruled that Counts 2-5 should be severed from Count 1, with Count 1 proceeding first. Counts 2-5 would not commence until at least 21 days after a verdict was returned with respect to Count 1. Additionally, if an appeal was lodged against any conviction recorded with respect to Count 1, the separate trial should not commence until judgment had been given on appeal. The court deferred its decision on further inter se applications for separate trial with respect to Count 1 pending resolution of evidentiary matters on the voir dire and further submissions from counsel. Similarly, the court did not make a final decision on separate trials between those accused charged with impeding, as it was agreed that this matter should await the outcome of the trial of Count 1.

The final orders were that Counts 2-5 should be severed from Count 1, Count 1 should proceed first, and Counts 2-5 should not proceed until at least 21 days after a verdict was returned with respect to Count 1. In the event of an appeal being lodged against any conviction recorded with respect to Count 1, the separate trial should not commence until judgment had been given on appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It would appear that the evidence which is not admissible against all the accused, can be categorised as follows:(1)Conversations recorded by the use of listening devices.(2)Interviews and statements made by each accused to the police in the absence of others.(3)Out of court statements made by various accused to other witnesses in the absence of other accused.Listening Device evidence: At trial the prosecution propose to rely on evidence of conversations recorded by means of a listening device involving the various accused and others. These have been reduced to 48 CD’s (although the prosecution in the course of argument indicated they do not seek to use CD 43 which is conceded not to be admissible against any accused). A précis of the relevant portions of each CD, the participants in that conversation, and what is thereby sought to be proved, is set out in a schedule which is annexed to the outline of submissions filed on behalf of the Director of Public Prosecutions (DPP). Ms Chapman, in her document headed “Evidence Tables” also sets out particulars of evidence which is alleged to be admissible against all accused and I will discuss those matters later in these reasons.John Tracey: Mr Peek prepared a similar schedule which is marked “Chart A” and is annexed to his written submissions. That chart identifies those conversations in which John Tracey is present. Of the 47 CD’s set out in the schedule John Tracey is alleged to be present during 15 of them, namely:With Michael Wallace, Joshua Considine and Naomi Wallace: 12 and 13.With Joshua Considine and Michael Wallace: 20.With Joshua Considine: 48.With Michael Wallace: 14, 15 and 17.With Shivonne Tracey: 21, 22, 23 and 24.With other persons not charged: 25, 26, 27 and 28.Joshua Considine: Joshua Considine is involved in 24 conversations, namely:With Michael Wallace, John Tracey and Naomi Wallace: 12 and 13.With John Tracey: 48.With Michael Wallace: 20.With Naomi Wallace: 5, 6, 7, 8, 9, 10, 11, 18, 19, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 39.Michael Wallace: Michael Wallace is alleged to be involved in eight conversations, namely:With John Tracey, Joshua Considine and Naomi Wallace: 12 and 13.With John Tracey: 14, 15 and 17.With Joshua Considine: 20.With unknown male: 16.Naomi Wallace: Naomi Wallace is alleged to be involved in 25 conversations, 20 of which are with Joshua Considine as set out above.With Michael Wallace and John Tracey: 12 and 13.With persons not charged:1, 2 and 4.Shivonne Tracey: Shivonne Tracey is alleged to be involved in 11, namely:With John Tracey: 21, 22, 23 and 24.With Christine Dal Santo: 40.With unknown/not charged: 41, 42, 44, 45, 46, 47.Christine Dal Santo: Christine Dal Santo is alleged to be involved in two, namely:With Shivonne Tracey: 40.With a person not charged: 3. Mr Peek referred to various matters of prejudice arising out of the listening device evidence. By way of example, in CD 1, statements made by Naomi Wallace in the absence of John Tracey purport to put John Tracey at the scene of the alleged crime. In the same conversation, there is a statement “John got fuckin, he’s gotta go to court over knuckle dusters, fucken that he got busted for three years ago”. There is also a conversation in the same CD relating to stolen cars or car parts. In CD 2, Naomi Wallace, in the absence of John Tracey, says “Yeah, um basically they, the boys, … Josh; Michael and Josh, didn’t even know that John brought the gun”.

Decision

Reasons for decision

Counsel for Naomi Wallace, Shivonne Tracey and Christine Dal Santo each confirmed that was agreed. My concern as to the administrative difficulty and expense involved in multiple trials has therefore been alleviated by those undertakings.Conclusion: In my opinion, the views expressed by King CJ in Collie particularly where he discussed what he described as the “gravely prejudicial character of the statements attributed to David Carter”[25] are particularly persuasive and, in my view, are applicable to the circumstances of this case.[25] R v Collie & Ors (supra) (at 310-311) On the basis that there is a joint trial of the three accused charged with murder in Count 1, without the other charges, there still remains a large body of evidence which would be inadmissible against all three and which would therefore need to be the subject of careful jury directions. To require the jury, at the same time, to consider directions relating to evidence arising with respect to the impeding charges, which are obviously of a different nature to the murder charge, albeit arising out of the same body of evidence would, in my opinion, result in an accumulation of complicated directions. This would create a situation of extreme difficulty for the jury to clearly understand exactly what evidence was properly admissible with respect to each accused. In my opinion, that would lead to a substantial risk that the various accused would be deprived of a fair trial. On 30 March 2005 I therefore ruled:1. Counts 2-5 should be severed from Count 1.2. Count 1 should proceed first and Counts 2-5 should not proceed until at least 21 days after a verdict is returned with respect to Count 1.3. In the event of an appeal being lodged against any conviction recorded with respect to Count 1, the separate trial should not commence until judgment has been given on appeal. I was mindful of the fact that there were further inter se applications for separate trial with respect to Count 1, but I deferred my decision in relation to that aspect of the matter pending resolution of evidentiary matters on the voir dire and further submissions from counsel. Similarly, I did not reach any final decision as to separate trials between those accused charged with impeding, as it was agreed by those accused that was a matter that should properly await the outcome of the trial of Count 1.

Ratio Decidendi

Legal Principle Established

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