R v Wills

Case [2016] QSC 316

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wills [2016] QSC 316

PARTIES:

R

(respondent)

v
DEAN MARK WILLS

(applicant)

FILE NO/S:

Indictment No 575 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application for a separate trial

DELIVERED ON:

25 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

17 August 2016

JUDGE:

Mullins J

ORDER:

The application by Mr Wills to be tried separately from Mr Hansen is refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – JOINT OR SEPARATE TRIAL – EMBARRASSMENT OR PREJUDICE – where co-defendants are charged with murder and the prosecution case is circumstantial – where one defendant applies to be tried separately – where co-defendant made statements admissible against him alone that could be treated as implicating the other defendant in the murder – where there is a danger a jury would use evidence inadmissible against the defendant to bolster the case against him or in an impermissible way – whether potential prejudice can be addressed by appropriate directions that avoid positive injustice to the defendant seeking the separate trial

Criminal Code (Qld), s 7, s 8, s 597B

Director of Public Prosecutions v Mwamba [2015] VSCA 338, cited
Madubuko v The Queen (2011) 210 A Crim R 249; [2011] NSWCCA 135, considered
R v Belford & Bound[2011] QCA 43, considered
R v Roughan & Jones[2007] QCA 443, cited
R v Swan[2013] QCA 217, considered
R v Vecchio & Tredrea[2016] QCA 71, considered
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, followed

COUNSEL:

A J Edwards for the applicant

C W Heaton QC for the respondent

SOLICITORS:

Peter Shields Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. Mr Wills and Mr Hansen are charged on the same indictment that on or about 23 March 2001 at Southport they murdered Mr Britza. Before Mr Hansen was joined on the same indictment as Mr Wills, the trial of Mr Wills for the charge of murder took place before Burns J between 11 and 25 February 2015. It was a hung jury. The second trial of both Mr Wills and Mr Hansen took place before me between 1 and 14 March 2016. It was a hung jury in respect of both defendants. Both defendants are listed for another trial to commence before me on 28 November 2016. Mr Wills applies pursuant to s 597B of the Criminal Code (Qld) to be tried separately from Mr Hansen.

    Summary of relevant facts

  2. On 2 March 2008 Mr Britza’s remains were found in a shallow grave under the Canungra Creek Bridge partially covered in a blue tarpaulin.  The prosecution case is that Mr Britza was murdered some seven years earlier on 23 March 2001 at an industrial shed in Minnie Street, Southport which was a “bikie chop shop” where cars were re-identified, stolen property was bought and sold and methylamphetamine supplied.

  3. There were four witnesses who gave evidence as…

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Details
AGLC
R v Wills [2016] QSC 316
Case
[2016] QSC 316
Decision Date

CaseChat Overview and Summary

In the matter of R v Wills, the defendant sought to be tried separately from his co-defendant, Hansen, who was also charged with murder. The crux of the application lay in the potential for prejudice from the evidence admissible only against Hansen, which could be misused by a jury in bolstering the circumstantial case against Wills. The court was tasked with determining whether the potential for prejudice could be sufficiently mitigated by appropriate directions to the jury, thereby avoiding positive injustice to Wills.

The legal issues centred on the admissibility of evidence solely relevant to Hansen's case and the potential for prejudice from its inclusion in a joint trial with Wills. The court had to weigh the risk of prejudice against the procedural fairness of a joint trial. The defence argued that Hansen's admissions and behaviour, which implicated Wills, could improperly influence the jury's assessment of the circumstantial evidence against Wills. The prosecution contended that appropriate jury directions could mitigate any risk of prejudice.

The court determined that the potential prejudice to Wills from the inadmissible evidence against Hansen could be sufficiently addressed through clear and robust jury directions. The court held that the risk of prejudice did not outweigh the advantages of a joint trial, including efficiency and economy. Consequently, the application for a separate trial was dismissed. The court emphasised the importance of clear and unequivocal directions to ensure that the jury would not improperly consider the inadmissible evidence when deliberating on Wills's case.

The court ordered that Wills and Hansen would be tried jointly, with the understanding that appropriate directions would be given to the jury to ensure the inadmissible evidence against Hansen was not used to bolster the prosecution case against Wills. The trial proceeded accordingly, ensuring that both defendants received a fair trial while maintaining the procedural efficiency of a joint trial.

Orders

Orders of the court

The application by Mr Wills to be tried separately from Mr Hansen is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Crisp gave evidence that after Mr Hansen and Mr Wills left the house, Mr Hansen returned to the house and retrieved a sheet or blanket. Although the prosecution does not rely in its case against Mr Wills on Mr Crisp’s observations about Mr Hansen’s demeanour on his return to the home or the conversation he had with Mr Hansen at that time, the prosecution does rely on Mr Crisp’s evidence that Mr Hansen retrieved a sheet or blanket that he took away with him as admissible in the case against Mr Wills on the basis of the Tripodi principle, as an act in furtherance of the common purpose of assaulting Mr Britza, as Mr Britza’s body was found wrapped in a pink sheet. During the hearing of this application, counsel on behalf of Mr Wills conceded that the evidence from Mr Crisp (and Mr Taylor) about seeing Mr Hansen with the blanket or sheet would be admissible against Mr Wills.Evidence admissible only against Mr Hansen There is evidence that is admissible in the prosecution’s case against Mr Hansen which could not be used in any way by the jury in assessing the prosecution case against Mr Wills. That evidence is from Mr Hansen’s girlfriend as to what Mr Hansen said to her before he went out that evening that “we’re going to go shut someone up” and her observations of Mr Hansen when he returned to the house later that night that he was shaking and had mud all over him. She said that Mr Hansen said to her “we shut him up”. Mr Crisp gave evidence of the conversation he subsequently had with Mr Hansen about what had happened that evening and he said that Mr Hansen said “him and Dean had bashed someone, and it had gotten a bit out of hand”. There is also the evidence from Mr Taylor of what he overheard on Mr Hansen’s return to the house. Mr Taylor said that Mr Hansen yelled at his brother telling him this was all his fault and asked his girlfriend to get some sheets which she handed to him and he left again. Mr Taylor said that Mr Hansen came back again and spoke to another man in the house saying that he had lost the keys and he needed help to hotwire the car and that Mr Hansen told his brother that they had to burn his car. Mr Taylor said that Mr Hansen returned again later and he heard him say to his brother “I fucked up. He’s gone”.Prejudice claimed by Mr Wills from a joint trial Whereas there is no direct evidence against Mr Wills that he was present at the time of the murder, there is direct evidence against Mr Hansen which, if accepted by a jury as an admission by Mr Hansen that he “bashed” Mr Britza, is capable of proving that he was present when Mr Britza was attacked in the shed. This is the evidence of his behaviour and statements made after the attack on Britza is alleged to have occurred which includes statements that also implicate Mr Wills in the attack at a time when, on the prosecution case, there is admissible evidence against Mr Wills that Mr Wills was with Mr Hansen. It is therefore argued on behalf of Mr Wills there is a danger that a jury would use this evidence of admissions by Mr Hansen which is inadmissible against Mr Wills to bolster the weaker circumstantial identification evidence against Mr Wills. It is also submitted that any direction to the jury that the evidence admissible in the case against Mr Hansen alone is not admissible against Mr Wills (including for the purpose of assessing the credibility of witnesses such as Mr Taylor in respect of evidence which is admissible against Mr Wills alone) would not be sufficient to put Mr Hansen’s statements and behaviour out of their minds when considering the prosecution case against Mr Wills.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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