Tasmania v Oakley and Bell
[2015] TASSC 12
•2 April 2015
[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 BellOn 8 March 2013 entering as trespassers 1/4 Castlereagh Court with the intention to commit the crime of stealing.
4
Stealing
Mr Oakley
Mr BellOn 8 March 2013 stealing from that unit a number of domestic items.
5
Aggravated burglary
Mr Oakley
Mr BellOn 8 March 2013 entering as trespassers 2/4 Castlereagh Court with the intention to commit the crime of stealing.
6
Stealing
Mr Oakley
Mr BellOn 8 March 2013 stealing from that unit a quantity of firearms, militaria, cash and a number of other items.
7
Receiving stolen property
Mr Oakley
On 8 March 2013 being in possession of various computer items and items of a personal nature knowing them to be stolen.
The Crown case
First, the Crown alleges that, in the early hours of the morning of 26 February 2013, Mr Oakley was spoken to by police in Auvergne Avenue, a street in inner Lenah Valley. He was with others near a motor vehicle. Police had been alerted to suspicious behaviour. When officers searched the vehicle, they found a .22 Ruger firearm in the front passenger side front foot-well. A machete, a balaclava and two pairs of gloves were also found in various parts of the vehicle. The Crown does not assert that the vehicle belonged to Mr Oakley.
The firearm is said to have been stolen from a house in Clifton Beach on or about 12 May 2012. Mr Oakley's alleged possession of that firearm is the subject of count 1. In count 2, it is alleged that all of the items found in the vehicle were in Mr Oakley's possession, and it is all of those items which are alleged to be instruments for making an entry into buildings.
Next, as to counts 3 to 6, the Crown alleges that, during daylight hours on 8 March 2013, two units in the one complex in Castlereagh Court, in outer Lenah Valley, were broken into by both accused, and various items taken. As noted above, items taken from the second unit included firearms and militaria. A safe was also removed from the second unit. Amongst other things, that safe contained two pistols, and there is some evidence which suggests that Mr Oakley was aware of the possibility that firearms might be found in it. Evidence will be led that he had been to some parties at the unit when the owner was away, and it was being looked after by a relative of the owner known to Mr Oakley.
On the same day, a few hours after the units were broken into, a Howden resident saw a man throw what she believed to be a microwave oven into the water. The man then ran to a 4WD vehicle, the registration number of which the resident noted. The vehicle was driven away, and the resident looked to see what the object was. It was a safe, later identified to be the one taken from the second unit in Castlereagh Court. The resident contacted police. She gave the registration number and later gave a description of the man who had thrown the object.
Mr Oakley then lived in Kingston. Police officers first went to his house but he was not there. They went to another house in Kingston. The 4WD vehicle said to be that of Mr Bell, was at that house, but Mr Bell was not. Mr Oakley was at the house but ran away when police arrived. He was soon caught and found in possession of items taken from the second unit in Castlereagh Court. He was also found in possession of items which had been stolen from a different house in Clifton Beach on 7 March 2013. That possession is the subject of count 7. The general description which the Howden resident had given to police matched that of Mr Oakley as he was found.
Shortly after, Mr Bell was found not far away. He is alleged to have been in possession of items taken from the first unit in Castlereagh Court. He was arrested, charged and granted bail. About a week later, he was again spoken to by police, but when he was in a different vehicle. In that vehicle police found items taken from the second unit.
The tendency notice
The Crown has served on Mr Oakley a notice under s 97 of the Evidence Act 2001 (the Act). Relevantly, the section provides that evidence of the conduct of a person is not admissible to prove a tendency to act in a particular way, unless reasonable notice is given of the intention to call that evidence, and the evidence would, by itself or having regard to other evidence, have significant probative value. Under s 101 of the Act, the evidence cannot be used unless its probative value substantially outweighs any prejudicial effect it may have. Rather curiously, par 2 of the notice identifies conduct but it is made up of tendencies. They are:
(a)a tendency to possess stolen firearms;
(b)a tendency to possess firearms parts or items used in connection with firearms;
(c)a tendency to use and/or dispose of stolen firearms and firearm accessories.
Paragraph 3 of the notice states that the evidence of the accused's conduct shows he has an interest in firearms and accessories, and a tendency to possess and dispose of firearms and accessories. The remaining paragraphs outline the relevant conduct. Included in that conduct is an assertion that on 22 May 2012 Mr Oakley was found, at his home, in possession of a stolen Tikka rifle and ammunition. This rifle was stolen from the same Clifton Beach house as had the Ruger .22, and at the same time.
The tendency notice states that there was an effective DNA match from the Tikka rifle to Mr Oakley, and that he had admitted to police that he was either going to use or sell the gun. The notice refers to a certificate of conviction, but does not provide any detail. A certificate of conviction in the Crown papers shows that on 17 January 2013 Mr Oakley pleaded guilty to (amongst other things) "unlawful possession of property" on 22 May 2012 at Kingston. The Crown's assertions are that there will be proof of the unlawful possession of the Tikka rifle, and that he pleaded guilty to having that rifle in his possession knowing it to be stolen.
The other conduct outlined in the tendency notice arises from the events on 8 March 2013 in Kingston. The notice asserts that Mr Oakley was found in possession of 9 x .22 bullets, a double magazine holder, "a night vision firearm scope", and a book on improvised ammunition and explosives. These items are said to have been stolen from the second Castlereagh Court unit and were originally in the safe which contained other firearms, ammunition and other accessories related to firearms. The notice also alleges that Mr Oakley disposed of the balance of the firearms and firearms accessories before being apprehended.
Mr Oakley's application: s 311 of the Criminal Code
The application is to sever counts 1 and 2 together from the remainder. Mr Oakley submits that the joinder of those two counts is not justified by reference to s 311(2) of the Code, and that the tendency evidence is not admissible on those counts, so that the necessary connection is not provided by that means. I have not been asked to decide the admissibility of the tendency evidence on counts 3 to 6.
Section 311(2) of the Code relevantly provides that:
"(2) … charges of more than one crime may be joined in the same indictment, if those charges arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or a similar character."
The meaning and operation of this and like provisions in other jurisdictions have been discussed many times. There are two limbs to the subsection, and it is the second which seems to have occupied the bulk of the debate. Obviously, either of the two limbs would justify joinder, and it also seems clear enough that the qualifying feature in each limb must apply to all of the counts; that is, each count must be capable of being joined with every other. It is not sufficient that one may be joined with one other, which, looked at in isolation, can be joined to a third: Zammit v State of Western Australia [2007] WASCA 66 per Steytler P (with whom Wheeler and Pullin JJA agreed) at [52]-[57].
In this case, counsel for the Crown did not seek to justify joinder on the basis of the first limb. The argument is whether counts 1 and 2 together are, or are not, part of the series of crimes of the same or similar character as made up of counts 3 to 7.
Under the second limb, not only do the charges need to be ones of crimes of the same or similar character, the charges must be or form part of a series of such crimes. To be, or be part of, a "series", there needs to be a nexus between the offence; a feature of similarity which enables them to be described as a series: Ludlow v Metropolitan Police Commissioner [1971] AC 29 at 38; R v Cranston [1986] 1 Qd R 159 at 164; R v Carr [2003] TASSC 123 at [6]. The section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a "series" without straining the word beyond its reasonable meaning: De Jesus v The Queen (1986) 61 ALJR 1 per Dawson J at 9.
The second limb calls for the application of a test involving time, place and the other circumstances of the offences, as well as their legal character or category in order to determine whether features of similarity and connection are present to a sufficient degree: R v Cranston at 164. Generally, the provision should not be given an unduly restrictive meaning: De Jesus (above) at 9; R v Kray [1970] 1 QB 125 at 131.
It is well established that the necessary nexus between offences exists if there is cross-admissibility of evidence, but I will leave to one side for the moment the tendency evidence. As to legal character, counts 1 and 7 are charges of the same type of crime, and both involve the second limb of the crime of receiving stolen property under s 258 of the Code. Next, the crimes of aggravated burglary and being found prepared for the commission of a crime can each take different forms. The particulars of the charge serve to define the ingredients of such crimes: R v Richardson A5/1991, [1991] TASSC 2 per Underwood J (as he then was) (with whom Green CJ and Wright J agreed). I regard count 2, as particularised, as a charge of similar legal character to counts 3 and 5 as particularised. Counts 1, 2, 3 and 5 as particularised, and counts 4, 6 and 7 are all offences of dishonesty.
There is also a degree of factual connection or correlation. As to count 1, Mr Oakley was found in possession of the stolen item on 26 February. At the same time he is said to have been found prepared for the commission of a crime. He was found in a residential area in Lenah Valley, although at night. It is alleged that he was prepared for the commission of a break-in, and one of the instruments for making an entry is said to be the stolen firearm. The crimes alleged in counts 3, 4, 5 and 6 were also committed in a residential area in Lenah Valley about two weeks later, although during the day. They involved break-ins and thefts from two residences. Firearms and associated items were taken from one of the units.
Count 7 involves the possession of property stolen from a residence in the same area as the property the subject of count 1, although that area is some distance away from Lenah Valley. However, the possession of that property was detected on the same day as the commission of, and apprehension of the defendant in relation to counts 3 to 6 inclusive. In any event, it is the relationship between counts 1 and 2 and counts 3 to 7 which is the issue raised.
In my view, counts 1 and 2 form part of a series with counts 3 to 7 within the meaning of the second limb of s 311(2). It is the combination of the legal character, the timing and the "residential" factor which makes all counts properly joined.
That finding obviates the need to consider the question of the tendency evidence, but in case my view of the crimes as a series is incorrect, I will consider it. The issue is whether it is relevant to counts 1 and 2 and has significant probative value.
As to the operation of s 97 and the meaning of "significant probative value", it is convenient to repeat what I said in Tasmania v Martin (No 2) (2011) 20 Tas R 445 at 459 [33]-[35]:
"Obviously, the first question is one of relevance. Under s55 of the Act the evidence needs to be such that if accepted, it could rationally affect the assessment of the probability of a fact in issue. If so, the next question is whether the evidence has a significant probative value within the meaning of s97(1)(b). Subsumed within that question are issues of the cogency of the evidence relating to the conduct of the accused, the strength of the inference which can be drawn from the evidence as to the tendency of the accused to act in a particular way, and the extent to which that tendency affects the assessment of the probabilities relating to facts in issue.
'Probative value' of evidence is defined in the Act as meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue. Significant probative value means something more than mere relevance, but something less than a substantial degree of relevance. For tendency evidence to have significant probative value it requires 'that its degree of relevance to the events giving rise to the offence … is important or of consequence': R v Lockyer (1996) 89 A Crim R 457 at 459; L v Tasmania (2006) 15 Tas R 381 at 392 – 393 [31] – [32]. Accordingly, evidence has significant probative value if it could rationally affect the assessment of the probabilities as to facts in issue, to a significant extent.
There is no inflexible standard of significant probative value. A court needs to look at the nature of the fact or facts in issue to which the evidence is said to be relevant and the importance it has in establishing that fact or facts; regard must be had to the other evidence to be adduced: Lockyer (above) at 459. There is a need to ascertain and assess the logical nexus between the evidence in question and the facts in issue. In short, 'all that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence': R v Ford (2009) 273 ALR 286 at 316 [125]."
As explained by Pearce J in Tasmania v L [2013] TASSC 47 at [42]-[46], in assessing the probative value of the evidence, it must be assumed that the evidence will be accepted, and that any inference open to the jury and favourable to the prosecution will be drawn: KMJ v Tasmania (2011) 20 Tas R 425.
Mr Oakley's argument seemed to be confined to the relevance of the tendency evidence in relation to counts 1 and 2, or at least its significant probative value, and did not extend to the issue under s 101. Nonetheless, I would need to consider that. It would be unlikely that a jury would not be satisfied of Mr Oakley's possession of the stolen Tikka rifle and of his subsequent plea of guilty to that charge. He may have an explanation for all of that, but its evidentiary value has to be taken at its highest.
With the stolen Ruger firearm having the same origin as the Tikka, the established possession of the Ruger could rationally affect the assessment of the probabilities to a significant extent, at least in relation to counts 5 and 6. Because of the very close proximity in place and time, it would have a similar effect in relation to counts 3 and 4, but not directly by virtue of it being tendency evidence. Depending on the point at which the jury wished to start, proof of the possession of the Tikka rifle and proof of counts 5 and 6 would, in terms of tendency, affect the assessment of the probabilities as to counts 1, 3 and 4.
As to count 2, the Ruger firearm, along with a balaclava, gloves and a machete, are said to be an instruments for use as a means of entry as a trespasser. As I see it, there may well be an issue in the trial as to whether the Ruger was in Mr Oakley's possession at the relevant time, or in the possession of someone else. The alleged tendency to possess stolen firearms would have significant probative value in relation to what was in his possession, although the fact that the firearm was stolen would not seem to add anything to the debate.
I am not asked to decide the point, but I observe that the tendency evidence would not seem to be relevant to count 7. The Tikka and Ruger firearms were stolen from a residence in the same area as the items the subject of that count, but no firearms were taken in the second theft.
I am satisfied that the probative value of the tendency evidence in relation to counts 1 and 2 substantially outweighs any prejudicial effect it may have. Any prejudicial effect can be sufficiently ameliorated by appropriate directions. I note that Mr Oakley's has applied for both counts to be severed from the remainder, not that they should also then be severed from each other. No argument was addressed to discriminating between them. Similarly, there is no application to sever count 7 from the others.
It follows that Mr Oakley's application is refused.
Mr Bell's application: s 363 of the Criminal Code
Section 363 of the Code provides that where two or more persons are charged in the same indictment, the judge may at any time during the trial, direct that the trial of any of them shall be had separately from the trial of the other or others. The law is clear that the prima facie rule is that accused persons jointly charged with committing the same offence should be tried jointly: Webb and Hay v The Queen (1994) 181 CLR 41; R v Demirok [1976] VR 244; Leaman v The Queen 9/1987, [1987] TASSC 21; Tasmania v Smart [2014] TASSC 52 at [8]. The proviso to the rule is the right to a fair trial. The prima facie rule will be departed from where there is a real risk of positive injustice to the accused were there to be a joint trial: R v Alexander and McKenzie (2002) 6 VR 53 at 67 [31].
Mr Bell supported Mr Oakley's argument as to severance, and in any event seeks a separate trial. The case against him in relation to counts 3 to 6 inclusive is a circumstantial one. It is based mainly on the association of his vehicle with the jettisoning of the safe, the fact that he was found not far away from the vehicle shortly after and in possession of items stolen from a unit, and also found on a later occasion again in possession of items stolen from one of the units.
Counsel for Mr Bell accepted that juries are to be taken as reasonably capable of acting on directions to disregard evidence only admissible against one accused, when considering the case of another. It is put that this case falls into the exceptional category in which it is not reasonable to expect a jury to put to one side prejudicial and inadmissible evidence. The task is too great and the risk of a miscarriage of justice too high.
There are aspects of a joint trial which cause me concern; the tendency evidence in particular. Mr Oakley will face three additional counts which cover two separate events; that is, the police interception of him on 26 February 2013, and his possession on 8 March 2013 of stolen property unrelated to counts 3 to 6. There will be the tendency evidence in his case. That evidence includes the earlier possession of the Tikka rifle on 22 May 2012. The tendency evidence is likely to attain some prominence. There is the evidence of Mr Oakley's familiarity with unit 2, with the suggested possibility that he was aware of the storage of firearms at that unit. The issue of Mr Oakley's familiarity with the unit may be controversial.
The case against Mr Bell is not as strong as that against Mr Oakley. Ignoring the tendency evidence, there is evidence on which the jury could find that it was Mr Oakley who threw the safe into the water. There is also his possession of stolen items. Satisfaction of Mr Bell's guilt depends on inferences being drawn from his whereabouts when he was found on 8 March, and items found in his possession, first at that time, and then a few days later.
It is true that a criminal trial should proceed on the assumption that jurors obey the trial judge's directions: Gilbert v The Queen (2000) 201 CLR 414 per McHugh J at 425 [31]. However that assumption has been said not to be a "foreclosing" one: R v GAC (2007) 178 A Crim R 408, per Giles JA at [87]. Even accepting that the prima facie rule is not easily displaced, in my judgment the accumulation of the factors which I have outlined, means that there is too great a risk that Mr Bell's case will be overwhelmed by the evidence in Mr Oakley's trial. There is too great a risk that insufficient attention will be paid to Mr Bell's case as a separate trial, and that he will be judged "guilty by association" with Mr Oakley: R v Chami (2002) 128 A Crim R 428 at 431; Tasmania v Smart (above) at [15].
I am satisfied that I should exercise my discretion in Mr Bell's favour. I order that he be tried separately on counts 3 to 6 inclusive.
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