Tasmania v Smart
[2014] TASSC 52
•2 October 2014
[2014] TASSC 52
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Smart [2014] TASSC 52
PARTIES: TASMANIA
v
SMART, Jamie Peter
FILE NO: 126A/2014
DELIVERED ON: 2 October 2014
DELIVERED AT: Hobart
HEARING DATE: 30 September 2014
JUDGMENT OF: Tennent J
CATCHWORDS:
Criminal Law – Procedure – Information, indictment or presentment – Joinder – Joint or separate trial – Generally – Discretion of trial judge to order separate trials – Factors relevant to the exercise of the discretion.
Criminal Code 1924 (Tas), s 363.
R v Courtney, Gary William, Lomas, Jeffrey Joseph, Duggan, John Frederick [1998] TASSC 127, 127/1998; R v Chami (2002) 128 A Crim R 428, followed.
Aust Dig Criminal Law [3078]
REPRESENTATION:
Counsel:
State: A R Jacobs, Y Prenc
Accused: K Baumeler
Solicitors:
State: Director of Public Prosecutions
Accused:
Judgment Number: [2014] TASSC 52
Number of paragraphs: 26
Serial No 52/2014
File No 126A/2014
TASMANIA v JAMIE PETER SMART
REASONS FOR JUDGMENT TENNENT J
2 October 2014
The accused, Jamie Peter Smart, was jointly charged with Rhys Louis Gardner with one count of causing grievous bodily harm to Shayne Waller, and one count of murder of Michael Williams. Each was convicted of both counts. Each appealed his conviction and sentence successfully.
In the case of Smart, an order was made that his conviction and sentence be quashed. A re-trial was ordered in respect of the grievous bodily harm charge and a further order was made that there be a verdict of acquittal in respect of the charge of murder.
The Crown has not filed any new indictment. It proposes, however, that there be a re-trial. It proposes that one count of murder against Gardner be tried together with a joint charge against both Smart and Gardner for causing grievous bodily harm. Counsel for Smart has made an application before empanelment of the jury pursuant to the Criminal Code, s 361A. That application is for an order that there be separate trials in respect of Smart and Gardner. That is, counsel for Smart seeks that the accused Smart be tried alone in respect of the grievous bodily harm matter, and that no other matters proceed to trial at the same time.
The State's case against each accused, as presently particularised in respect of the grievous bodily harm matter, is that each either:
(a)personally kicked Shayne Waller to the head and/or stomped on his head and/or punched him to the head; and/or
(b) abetted the other to cause grievous bodily harm to Shayne Waller by
(i) joining in an attack by the other on Shayne Waller; and/or
(ii)remaining in unit 7, Stainforth Court whilst the other inflicted further violence on Shayne Waller after he had already inflicted violence as detailed in point (a); and/or
(c)at a time after entering unit 7 in the early hours of 18 February 2011, formed a common intention with the other to prosecute an unlawful purpose in conjunction with one another, namely to perpetrate a violent attack on the two occupants of that unit, and in the prosecution of that purpose committed the crime of causing grievous bodily harm to Shayne Waller, which crime was a probable consequence of the prosecution of that unlawful purpose.
As far as the murder charge against Mr Gardner, the State's initial position was that both accused engaged in a serious attack on both Shayne Waller and Michael Williams which resulted in serious and permanent injury to Waller and the death of Williams. As a result of the directed acquittal against Smart, the State will need to reframe its case against Gardner as a sole offender in relation to the death of Williams. Smart is not now charged with any offence in relation to Williams.
The State proposes to call some 40 witnesses and the trial is estimated to last at least two weeks and may go into a third.
The law
The application by counsel for Smart has been made by reference to the Code, s 363. That provides:
"363 - When 2 or more persons are charged in the same indictment, whether with the same crime or with different crimes, the judge may at any time during the trial, on the application of any of the accused persons, direct that the trial of any of them shall be had separately from the trial of the other or others of them, and for that purpose may, if a jury has been sworn, discharge such jury from giving a verdict as to any accused person in respect of whom such direction is made."
Underwood J (as he then was) set out the law in respect of an application pursuant to s 363 in R v Courtney, Gary William, Lomas, Jeffrey Joseph, Duggan, John Frederick [1998] TASSC 127, 127/1998. At 2, his Honour said:
"The proper exercise of this power was considered by the Court of Criminal Appeal (Tas) in Leaman v R 9/1987. Although the Court was divided on the outcome of the appeal, there was unanimity with respect to the principles applicable to the proper exercise of the discretion conferred by s363. Those principles are:
* Prima facie, where the Crown case is that accused persons were engaged in a joint or common enterprise, there should be a joint trial. The rationale for this principle and the authorities that support it are set out in the judgments in Leaman. There is no need to repeat them here.
* The prima facie rule is subject to the proviso that no accused person should be thereby deprived of his right to a fair trial.
In this case, as in most cases, injustice and the denial of a right to a fair trial are said to arise if the prima facie rule is applied because of the admission on the trial of one accused of evidence prejudicial to, but not admissible on, the trial of the other two accused. With respect to this proposition, Neasey J said in Leaman at 9:
'A basic question faced by a trial judge considering whether to order a separate trial, or an appellate court considering whether a miscarriage of justice has occurred because he did not, always is whether the prejudicial effect of the inadmissible evidence is (or was) capable of being adequately neutralised by appropriate instructions to the jury. That question will usually involve two further issues, namely:
(1)will an average jury be reasonably capable, as an intellectual exercise, of performing the task thus given them?
and
(2)is the prejudice likely to be so great in the circumstances that it would not be reasonable to expect the jury to leave the prejudicial evidence out of account against a particular accused even though it is inadmissible against him?'
That statement is consistent with the judgment of the High Court in R v Darby (1981) - [1982] HCA 32; (1982) 148 CLR 668.
Whether or not a joint trial will deprive a co-accused of a fair trial will depend upon the circumstances of each case. R v Piller & Ors, Supreme Court of New South Wales, unreported 6 June 1995, was a case pressed upon me on behalf the applicants upon the basis that I should apply the outcome of that case to this application as a matter of principle. However, in my view, Piller is no more than one illustration of the application of the principles expressed by the Court of Criminal Appeal in Leaman."
His Honour said further at 5 when applying the facts of the case to the law:
"This case is quite unlike Leaman. In that case, the prejudice arose principally out of the fact that the appellant's wife gave, by way of an unsworn statement, a graphic, first hand, detailed account of how the appellant murdered his first wife. It was the only direct account of the critical events. It was a chilling account. The appellant's wife read it out herself. She had been observed by the jury for two weeks prior to reading it. Once, during the appellant's cross-examination, she called out from the dock that he was 'a bloody liar'. Had the appellant's wife not been allowed to make an unsworn statement, as is the case today, it is likely that the appeal would have been dismissed. The degree of prejudice in Leaman bears no resemblance to the degree of prejudice in this case.
This case is also quite unlike Piller. In that case, the out of court statements of three of the four accused recorded on video tape, make detailed, and at times conflicting, statements implicating the other accused. One of the accused declined to answer incriminating questions. The picture was further complicated by the evidence of one of the accused given on the voir dire, resiling from certain statements he had made on the video recorded interview. At 9 of his reasons for judgment (Butterworths Unreported Judgments) Dowd J referred to a passage in the judgment of Hunt J in R v Middis, delivered on 27 March 1991, which apparently was approved by the Court of Criminal Appeal (NSW) in R v Baartman unreported 6 October 1994, viz:
'Briefly, the relevant principles are that:
1 Where the evidence against an applicant for separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and 2 where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and 3 where there is a real risk that the weaker Crown case against the applicant will [appear to] be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.' [My insertion.]
It will be noted that all three points are linked with a conjunction. In a case where all three points are evident and thereby a joint trial will cause an injustice, obviously the proper exercise of the discretion is to order separate trials. On behalf of the applicants, it was submitted that Middis, Baartman and Piller were all authority for the proposition that separate trials should be ordered where the evidence against an applicant for a separate trial is significantly weaker than, and different to, that admissible against another. I do not read the unreported judgment of Dowd J as asserting that proposition, nor do the authorities to which he referred assert it. That the evidence against an applicant for a separate trial is significantly weaker and different to that admissible against a joint accused is just one of the relevant matters to be taken into account on a proper consideration of the general proposition that joint accused should be tried together unless thereby one or more will be denied a fair trial. I accept that in the present matter the Crown case against Courtney is stronger than it is against Lomas and Duggan, but neither that fact alone, nor that fact in conjunction with the matters referred to earlier in these reasons for judgment, persuades me that either of the applicants will be denied a fair trial if they are tried jointly with Courtney.
R v Darby (supra) was a conspiracy case. The respondents were tried jointly. Both were convicted. The conviction of one was subsequently quashed on appeal. Darby then appealed on the ground that the quashing of the conviction of his co-accused meant that his conviction should also be quashed. The Court of Criminal Appeal (Vic) accepted that proposition and quashed the respondent's conviction. The High Court overturned the Court of Criminal Appeal decision and reaffirmed Darby's conviction, thereby differing from UK authority. In the course of determining the issue before them, the majority observed that their view would require a trial judge to direct a jury in a conspiracy case involving only two persons, that they could acquit one and convict the other, as their deliberations had to be confined to the evidence admissible against each. This was described as an 'incongruity'. I pause to observe that a like incongruity was common place in the matrimonial law prior to the introduction of the Family Law Act 1973, for pursuant to the relevant statutory provisions, its findings were often made that a respondent had committed adultery with a correspondent, but that the correspondent had not committed adultery with the respondent! With respect to the direction a trial judge would have to give in a conspiracy trial involving only two persons, the majority went on to observe:
'Such a direction might well result in injustice to one accused. In a case where the evidence against A is overwhelming, a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act on a reasonable doubt on the evidence admissible against B.'
The majority then referred to a Canadian authority and said that the practice in Canada of requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other, is to be encouraged. All of this was said in the context of a conspiracy case involving two accused. The rationale for the observations is, of course, that a joint trial may well result in the accused against whom the Crown has the weaker case not receiving a fair trial. In the present matter, although it is true the Crown will argue as an alternative path to conviction that the murder of the deceased was the consequence of the prosecution of an unlawful purpose, the circumstances in this case bear no resemblance to the circumstances which caused the High Court to make the obiter dicta observations in Darby."
The case against Smart
Counsel for Smart submitted that the State's case was that Gardner, Smart and men by the name of Woodhouse and Wright went to Stainforth Court. Police saw Gardner, Smart and Woodhouse on the lawns outside at about 3.40am and all appeared intoxicated. About 20 minutes later Waller came along and all of them went to Unit 7. Williams was asleep on the couch in that unit. An argument developed between Smart and Waller. Woodhouse witnessed Smart punch Waller at least four times. Gardner also punched Waller. Woodhouse then left. There was evidence a taxi was called to the complex, and it is a reasonable assumption that Woodhouse left in that taxi. The time at which the passenger was picked up was 4.53am.
Evidence was given on the first trial from the occupant of the unit next door to Waller's. That witness said it was not uncommon to hear arguing and shouting coming from unit 7. On this night that started at about 11pm. Then, somewhere between 2am and 6am, he heard banging and thumping going on in the unit. At one point, he got up and went and looked through the peep hole in his front door. He saw a person leave. The time at which this occurred was imprecise. However it seems to have been before 6am. It is the defence case that was Gardner and this was evidence that he left alone, and therefore Smart had already left. The thumping and banging ended when this person left.
There was no other evidence as to where Smart was between when he may have left unit 7 and when he was seen by a cleaner outside the units a bit after 10am. He was then seen by police in the same area about 10.55am. They spoke to him and observed five small blood stains on his T-shirt. At that point police were not aware of anything occurring in unit 7. Smart told police he had been in a fight the night before and the blood on his shirt came from wiping his knuckles on the shirt. Police observed Smart's knuckles to be swollen and that there were cuts on them. They saw dried blood. That shirt had been washed by the time police came to investigate the matter. Police also noticed a drop of blood on Smart's right shoe. Smart's blood was found on sheets in another unit in the complex.
It was the defence position that Smart left the unit shortly after Woodhouse (although there was no evidence at all as to when he actually left), and took no part in any further violence against either Waller or Williams after he left. That is he was only involved in the initial punches of Waller.
The application
Counsel for Smart submitted that the real prejudice to Smart in the manner in which the State proposed to run a re-trial of Smart on the charge of causing grievous bodily harm to Waller was the joining of the charge of murder against Gardner. She accepted that, if this were an argument solely one where she was seeking a separate trial as between Smart and Gardner on the count of causing grievous bodily harm, her arguments would be much weaker. Despite, at the commencement of the hearing, indicating there was no fall-back position if her application failed, counsel for Smart ultimately accepted that the fall-back position could be a trial of Smart and Gardner jointly for the grievous bodily harm and a separate trial for the murder. Counsel for the State rejected any move to have separate trials on any basis.
In support of the contention relating to the prejudice arising from the joining of the murder charge, counsel for Smart referred to the text by Bagaric, Ross on Crime 6th ed (2013) at 1398 under the heading "Risk of guilt by association". The learned author referred to a matter of R v Chami (2002) 128 A Crim R 428 which involved an appeal against a refusal at first instance to sever an indictment containing 19 counts of rape in circumstances where the appellant was the subject of only two of those counts, and there was a great deal of inadmissible evidence led on the trial as a consequence of the refusal to sever. Ipp AJA said at 431:
"It is true that the trial judge would no doubt give very careful and explicit directions warning the jury against allowing any such feelings to affect their judgment. But in the highly charged atmosphere of such a trial where there will be a mass of evidence of these appalling crimes, it may be difficult for a jury, with the best will in the world, to remain entirely objective. In summary, I think that there is a risk of guilt by association."
While counsel for Smart conceded that Chami dealt with a number of accused of the same or similar ethnic background and there were far more charges than in the present case, she still submitted that, to allow Smart to proceed to trial on the causing grievous bodily harm matter with all the gory details of the murder being put before the jury, created a very real risk of a guilt by association-type reasoning by a jury to Smart's detriment.
Counsel for Smart canvassed the evidence she submitted would be led on the murder trial which was inadmissible against Smart. This included:
· The photographs of the injuries to Williams.
· The evidence of Dr Christopher Lawrence about Williams' injuries and the cause of his death.
· The video recorded interview between police and Gardner.
· The telephone calls between Gardner and various people recorded on the prison Arunta recording system.
· The evidence of Rodney Walker about a shoe print on Williams' right cheek.
· Certain parts of the DNA evidence. Counsel identified the evidence relating to identified items which she accepted would be admissible against Smart.
Counsel for the State conceded that almost all of the evidence identified by counsel for Smart as being inadmissible against him was indeed inadmissible. There was some argument about some of the DNA evidence although it does not really impact on this decision. His submission was that the photographs, the evidence of Dr Lawrence and the interview, while inadmissible against Smart, could be the subject of strong directions as to the manner in which the jury could use the material. If that were done, any possible prejudice against Smart would be neutralised. As to the Arunta calls, counsel for the State said he had not really turned his mind to those calls. He submitted that, if defence counsel wished to make approaches to the State about editing out some material she identified as prejudicial, he would consider that. As to the evidence of Mr Walker about the shoe print on the right cheek, the State told the Court it did not intend to lead that on the re-trial.
As to the DNA evidence, counsel for the State submitted much of it was relevant even where it showed the blood of Waller and/or Williams.
Counsel for the State identified that it had a particular problem with witnesses. The events which gave rise to the charges occurred in February 2011. One witness, a Mr Perry, died before the first trial. Another, Mr McDonald, had died since the trial, and another, Mr Thompson, was seriously ill and not expected to live long. Two female witnesses were pregnant and one was likely to have her child delivered by caesarian section. Counsel submitted that the psychological impact on witnesses of being required to, not only give evidence again because of the need for a re-trial, but also to potentially give evidence a third time if separate trials were ordered, was unacceptable. A police witness was working overseas, and another witness would be unavailable for the first three months of 2015. Counsel for Smart accepted that getting the trial up and running again would be difficult. However, she said there was no evidence that, if there were separate trials ordered, any witness would actually be unavailable.
Just by way of further comment, the State's case is a circumstantial one against each accused. Two men were badly beaten in a unit at what was then known as Stainforth Court in February 2011. One died as a result of his injuries. There were no witnesses available to give evidence of what occurred after Woodhouse left the unit because of the state of Waller as a consequence of his injuries. The events all occurred in a relatively short space of time. The circumstances giving rise to each charge are linked. There is no dispute both accused were present in the unit on the night. The evidence is equivocal about when each left the unit. What gave rise to the directed acquittal of murder in respect of Smart was, apart from anything else, a determination by the Court of Criminal Appeal that there was an hypothesis consistent with the innocence of Smart, and that was he may have left the unit at a time before Gardner did and had nothing to do with the murder.
Application of principles
Counsel for Smart submitted that all three of the considerations identified in the matter of Courtney in the material extracted at [9] of these reasons existed in the present matter. She submitted that the evidence in respect of the grievous bodily harm matter against Smart was significantly weaker than that against Gardner, that the material to be led on the murder charge contained material which was inadmissible against Smart and highly prejudicial to him, and there was a real risk that the weaker case against Smart might appear to be immeasurably stronger by reason of that prejudicial material. By reason of those matters Smart had shown that positive injustice would be caused to him in a joint trial.
I am not satisfied that the case against Smart in respect of the grievous bodily harm is necessarily weaker than that against Gardner. The evidence would suggest that Smart started the violence against Waller, there is no evidence of when he left the unit in the context of the evidence of the neighbour about banging and thumping, he was seen with blood on his clothes later in the morning, and he admitted it came from his being in a fight.
As to the existence of highly prejudicial inadmissible evidence, I accept that it does exist if the murder charge is dealt with at the same time as the grievous bodily harm matter. The jury will have very disturbing photos of Williams and the evidence of Dr Lawrence as to injuries which have nothing to do with Smart. There is, in my view, a very real risk of guilt by association arising from that material which cannot be neutralised by a direction. That is because the jury will be asked to find that Gardner committed extreme violence against Williams which resulted in his death, and may very well reason that, notwithstanding his acquittal, Smart was involved in that death and with Gardner caused the same extreme violence to Waller.
As to the difficulties facing the State as far as witnesses are concerned, it is not the fault of Smart or Gardner that there needs to be a re-trial. I accept that it might be a better option for the witnesses if there were only one trial. However that is not a factor which should override the need for there to be a fair trial for Smart
Conclusion
Having regard to the material I have canvassed, I am satisfied that I should exercise my discretion in favour of Smart, but not to the extent sought by his counsel. There should be a separate trial of the murder charge against Gardner. However, there is no reason why there should be separate trials of Smart and Gardner in relation to the grievous bodily harm. The events relating to that are inextricably bound together, and evidence admissible against Gardner but inadmissible against Smart should be greatly reduced.
The State will need, as a consequence of this decision, to decide what trial is to commence on 14 October. It will also need to revise the particulars of its case against each accused on the grievous bodily harm matter and to decide what evidence should properly be led on the grievous bodily harm matter alone.
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