Tasmania v Oakley and Bell - [2015] TASSC 12

[2015] TASSC 12

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Oakley and Bell [2015] TASSC 12

PARTIES:  TASMANIA (STATE OF)
  v
  OAKLEY, Daniel John
  BELL, Jason Linley

FILE NO:  190/2013
DELIVERED ON:  2 April 2015
HEARING DATE:  24 February 2015
JUDGMENT OF:  Porter J

CATCHWORDS

Criminal Law – Procedure – Information, indictment or presentment – Joinder – Of counts – By statute – Same facts or series of offences of same or similar character – Different offences of dishonesty involving possession of stolen firearm and thefts of firearms – Proposal to lead evidence of tendency to use and possess stolen firearms – Joinder appropriate as charges of similar legal character irrespective of tendency evidence – Tendency evidence admissible in any event.

Criminal Code (Tas) s 311.
De Jesus v The Queen (1986) 61 ALJR 1; Zammit v State of Western Australia [2007] WASCA 66, applied.
Aust Dig Criminal Law [3075]

Criminal Law – Procedure – Information, indictment or presentment – Joinder – Joint or separate trial – Embarrassment or prejudice – Application for separate trial – Tendency evidence admissible against other accused – Other evidence admissible only against co-accused – Real risk of injustice to applicant were there to be a joint trial – Separate trial ordered.

Criminal Code (Tas) s 363.
R v Alexander and McKenzie (2002) 6 VR 53 applied.
Aust Dig Criminal Law [3079]

REPRESENTATION:

Counsel:
             Crown:  J Ansell
             Accused Oakley:  K Baumeler
             Accused Bell:  T Kovacic
Solicitors:
             Crown:  Director of Public Prosecutions (Acting)
             Accused Oakley:  Henry Wherrett & Benjamin
             Accused Bell:  [N/A]

Judgment Number [2015] TASSC 12
Number of paragraphs: 38

Serial No 12/2015
File No 190/2013

STATE OF TASMANIA v DANIEL JOHN OAKLEY
and JASON LINLEY BELL

REASONS FOR JUDGMENT PORTER J

2 April 2015

Introduction

The two accused stand charged on one indictment dated 20 February 2015. The indictment contains seven counts of offences of dishonesty. Mr Oakley is charged alone with three counts, while he and Mr Bell are jointly charged with four counts. Pleas of not guilty have been entered. These are applications by both men to sever the indictment. In Mr Oakley's case, he seeks the severance of two of the counts he alone faces. In Mr Bell's case, he seeks a separate trial of the four charges faced by him.

The indictment

The counts, to whom they relate, and a brief description of the charges, are as follows.

Count

Crime

Accused

Charge

1

Receiving stolen property

Mr Oakley

Between 13 May 2012 and 26 February 2013 being in possession of a .22 Ruger firearm knowing it to be stolen.

2

Being found prepared for the commission of a crime

Mr Oakley

On 26 February 2013 being in possession of instruments for making an entry as trespassers into a building.

3

Aggravated burglary

Mr Oakley
Mr Bell

On 8 March 2013 entering as trespassers 1/4 Castlereagh Court with the intention to commit the crime of stealing.

4

Stealing

Mr Oakley
Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] TASSC 12
Decision Date: 2 April 2015

CaseChat Overview and Summary

Tasmania brought an appeal against the decision of a magistrate to sever two counts in an indictment against the respondents, Oakley and Bell. The respondents were charged with multiple offences, including possessing a stolen firearm and stealing firearms. The magistrate severed the charges on the basis that the evidence of tendency to possess stolen firearms was not relevant to the theft charges, and the joinder would result in unfair prejudice to the respondents. The prosecution appealed this decision to the Supreme Court of Tasmania.

The appeal required the court to determine whether the magistrate erred in severing the counts in the indictment. The court had to consider whether the charges were of a similar legal character, and whether the joinder of the charges would cause unfair prejudice to the respondents. The court also had to consider whether the evidence of tendency was relevant to the charges and admissible in any event.

The court found that the magistrate erred in severing the counts. The charges were of a similar legal character, and the joinder did not cause unfair prejudice to the respondents. The evidence of tendency was relevant to the charges and admissible in any event. The court held that the joinder of the charges was appropriate, and the magistrate's decision to sever the counts was an error of law. The appeal was allowed, and the case was remitted to the Magistrates Court for further proceedings.

The court ordered that the case be remitted to the Magistrates Court for further proceedings, and the magistrate was directed to join the counts in the indictment. The court did not make any orders regarding the admissibility of evidence of tendency, as it found that the evidence was admissible in any event. The respondents were not granted any relief in relation to the severance of the counts, as the court found that the joinder was appropriate.

Orders