The State of Western Australia v Bonwick
[2016] WADC 125
•19 AUGUST 2016
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BONWICK [2016] WADC 125
CORAM: BOWDEN DCJ
HEARD: 18 AUGUST 2016
DELIVERED : 19 AUGUST 2016
FILE NO/S: IND 45 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
DESY BONWICK
Catchwords:
Application for separate trials
Legislation:
Criminal Procedure Act 2004 (WA)
Result:
Application to severe the indictment dismissed
Representation:
Counsel:
The State of Western Australia : Ms T McArthur
Accused: Ms B Lonsdale
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: B Lonsdale Barrister & Solicitor
Case(s) referred to in judgment(s):
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Kalani v The State of Western Australia [2013] WASCA 132
Leaman v The Queen (1987) 28 A Crim R 104
Mansell v The State of Western Australia [2009] WASCA 140
R v Braysich [2006] WASCA 220; (2006) 166 A Crim R 109
R v Collins; Ex parte Attorney-General [1996] 1 Qd R 631
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Micalizzi [2010] WASCA 147
Wilson v The Queen (1970) 123 CLR 334
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
Zammit, JAW v The State of Western Australia [2016] WASCA 40
BOWDEN DCJ: Mr Bonwick is charged with the following offences:
1.On 13 August 2015 at Camillo he unlawfully assaulted Ms Smartt and thereby did her bodily harm whilst in a family and domestic relationship with her and in breach of a restraining order.
2.On the same date and in the same place as in count 1 he attempted to steal a motor vehicle, the property of Mr Singh.
3.On 23 August 2015 at Gosnells he made a threat to unlawfully harm Mr Rowe.
4.On the same date and the same place as count 3 he was armed with an offensive weapon, namely a knife, in circumstances likely to cause fear to Mr Rowe.
5.On 23 August 2015 at Southern River whilst in the place of Ms Smartt without her consent he committed the offence of breach of violence restraining order (VRO) whilst he knew or ought to have known there was another person in the place and that place was ordinarily used for human habitation.
The trial is listed for three days commencing on 29 August 2016.
On 14 July 2016 Mr Bonwick applied to severe the indictment and to be tried separately in accordance with s 133(4) of the Criminal Procedure Act 2004 (WA) (the CPA).
The order sought by Mr Bonwick is that counts 1, 2 and 5 be tried together and counts 3 and 4 be tried with each other but separately from the other three counts.
Facts as alleged by the State
In considering this application the State's case is assessed at its most favourable.
A brief summary of the facts alleged against Mr Bonwick in relation to the five counts are as follows.
Ms Smartt had known Mr Bonwick for about four years and they commenced a relationship in the early part of 2015. That relationship lasted for about five or six weeks.
It is alleged that on 21 July 2015 Mr Bonwick assaulted Ms Smartt as a result of which a 72-hour 'move‑on notice' was placed on Mr Bonwick. This incident is not the subject of any charge on the indictment.
On 23 July 2015 it is alleged that Mr Bonwick breached the move‑on notice by returning to Ms Smartt's address at about 1.05 am. This incident is not the subject of any charge on the indictment.
On 28 July 2015 Ms Smartt obtained a violence restraining order (VRO) against Mr Bonwick in favour of herself and her son and that VRO was served on Mr Bonwick on 1 August 2015.
On 3 August 2015 Mr Bonwick allegedly breached the VRO when he entered Ms Smartt's house through the front door without permission. Ms Smartt fled from the house by jumping from the balcony to the front yard and leaving in a car with her friends. This incident is not the subject of any charge on the indictment.
On 13 August 2015 Mr Bonwick allegedly went to the complainant's house at about 9.00 pm. He locked all the doors so Ms Smartt could not leave the house. He then accused her of cheating on him and instructed Ms Smartt to get dressed. He continued to accuse Ms Smartt of cheating on him and slapped her twice in the face. Mr Bonwick rang a friend telling him that he had a hostage. Ms Smartt's mother called Ms Smartt but Mr Bonwick would not let her answer the phone.
Mr Bonwick and Ms Smartt left the house and walked to a park. Ms Smartt's mother rang again and Mr Bonwick allowed Ms Smartt to speak to her mother after ensuring that she had put the mobile phone on speaker. Mr Bonwick eventually made Ms Smartt hang up and threw the mobile phone into a lake.
Shortly after this sirens were heard and Mr Bonwick pulled Ms Smartt into some bushes and they walked to an area where they both caught a taxi. Ms Smartt says she mouthed the word 'help' to the taxi driver.
Eventually the taxi pulled up at a destination and Mr Bonwick began to alight from the taxi but Ms Smartt remained in the taxi. Mr Bonwick lunged at her and she dived from the back to the front seat of the taxi, screaming 'Drive, drive' to the taxi driver. Mr Bonwick then punched Ms Smartt in the face as a result of which her nose was broken (count 1).
A scuffle then took place between the taxi driver and Mr Bonwick. The taxi driver left the taxi and Mr Bonwick got into the driver's seat and attempted to drive off but could not do so (count 2).
On 20 August 2015 Mr Bonwick went to Ms Smartt's house and banged on the windows in breach of the VRO. This incident is not the subject of any charge on the indictment.
On 21 August 2015 Ms Smartt was walking when the accused approached her in a vehicle and offered her a lift. When she refused he got out of his car, put his arm around her and tried to get her into the car, however she would not do so and Mr Bonwick drove off. This incident is not the subject of any charge on the indictment.
On 23 August 2015 it is alleged that Mr Bonwick attended a residence in Gosnells at about lunchtime and spoke to Mr Rowe who he had known for over 20 years. Mr Rowe did not know Ms Smartt. Mr Bonwick accused Mr Rowe of hiding Ms Smartt. When this was denied he called Mr Rowe a liar, became aggressive and shortly after a third person arrived at the scene, pulled out a large 10 inch long knife from the front of his pants, held the knife up to his face and said 'If I find anything different I will cut your fucking head off 'and 'I want to smash your head through that window' (count 3 relates to the threat and count 4 the possession and brandishing of the knife).
On the same date at about 5.30 pm it is alleged Mr Bonwick attended Ms Smartt's house, jumped over a fence and entered into the backyard. Ms Smartt ran inside the house and Mr Bonwick entered the house and started yelling about her cheating on him (count 5). Eventually Ms Smart and her son were able to leave the house.
The parties submissions
The defence accept that counts 1, 2 and 5 are properly joined. However, they say counts 3 and 4 relate to a different complainant to counts 1 and 2 and although counts 3 and 4 are alleged to have occurred on the same day as count 5, count 5 occurred 5 or 6 hours later than those two counts.
They say that counts 3 and 4 are not part of a series of offences of the 'same or similar character' concerning Ms Smartt within the meaning of sch 1 cl 7(3) (a) nor do they arise 'substantially out of the same or closely related acts or omissions' within the meaning of sch 1 cl 7(3)(b) or arise from a series of acts or omissions done or admitted to be done in the prosecution of a single purpose within the meaning of sch 1 cl 7(3)(c).
The defence say that the evidence concerning counts 1, 2 and 5 would not be admissible in counts 3 and 4 and the evidence concerning counts 3 and 4 would not be admissible in counts 1, 2 and 5.
Even if the evidence in respect of counts 3 and 4 was admissible in relation to count 5, it is submitted there is impermissible risk of prejudice and a significant possibility that the jury would form an adverse view of Mr Bonwick if they were to hear evidence of his conduct on other occasions.
They say that if the evidence of Mr Rowe (counts 3 and 4) is not admissible in respect of the events the subject of the charges concerning Ms Smartt (counts 1 and 5) there would be no basis for the admissibility of the evidence of Mr Rowe in a trial concerning Ms Smartt (counts 1 and 5) and vice versa.
They accept there is marginal similarity between count 1 and counts 3 and 4 as both incidents involve violence but count 1 alleges that actual physical violence by way of punching occurred and counts 2 and 3 allege a threat of violence.
They say that even if the evidence was cross-admissible there is a risk of prejudice to the accused which affects the fairness of the trial as there is a high risk that if the jury heard evidence of both incidents it would reason that because the accused is alleged to have committed offences or engaged in misconduct on other occasions he is the kind of person who is likely to have committed the offence he has been charged with.
The defence accept that a judge's direction would usually be adequate where the risk of prejudice is small however they submit that the risk in this case cannot be described as small and the prejudice is not curable by direction and the risk of an unfair trial is too great.
They argue that any increase in trial time by having two trials would be only marginal.
The State submits that the counts are properly joined pursuant to sch 1 cl 7(3)(b) and cl 7(3)(c) of the CPA. The State says all offences arise substantially out of closely related acts as well as arising from a series of acts done in the prosecution of a single purpose.
The State say that the counts are properly joined and that all of Mr Bonwick's offending as disclosed on the indictment comprise offences arising from a series of acts done in the prosecution of a single purpose, that is, his desire to control or dominate his relationship with Ms Smartt.
The law
An indictment must contain only one charge unless the CPA or another written law permits otherwise: s 85 CPA.
Further, an indictment containing two or more charges must be tried together unless a court orders otherwise: CPA cl 9 sch 1.
Schedule 1 cl 7 of the CPA provides:
…
(3)A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences —
(a)form or are a part of a series of offences of the same or a similar character; or
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.
Are the counts properly joined?
Do the offences form or are they part of a series of offences of the same or a similar character?
For offences to be of the same or similar character so as to permit joinder pursuant to cl 7(3)(a) a sufficient connection or nexus must exists between them. The words 'same or similar character' have a relatively wide reach: Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302.
A nexus is established if the offences are so connected that the evidence on other counts would be admissible on the count the accused faces. A nexus can be established in ways other than the cross‑admissibility of evidence: Zammit, JAW v The State of Western Australia [2016] WASCA 40.
In Mansell v The State of Western Australia [2009] WASCA 140, Miller JA said [26]:
… What is required is a sufficient correlation to enable the offences to be described as a 'series', without straining the word beyond the meaning which it is reasonably capable of bearing: De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 … the provision allowing joinder (cl 7(3)) should not be given 'an unduly restricted meaning': Zammit per Steytler P, at [27].
A nexus can be established by a connection between the facts relating to the offence, such as the time, place and other circumstances, as well as the legal character of the offences.
Counts 1, 3 and 4 involve the use of violence by the accused in connection with his perceived personal relationship with Ms Smartt and can be said to be offences of a same or similar character. Count 1 involved actual violence to Ms Smartt and counts 3 and 4 involved the threats of violence to Mr Rowe in response to his alleged hiding of Ms Smartt.
However, counts 3 and 4 are not of the same or similar character as counts 2 or 5.
I do not consider there is sufficient nexus displayed in the facts, place, time or character of counts 3 and 4 for them to be said to be part of a series of offences of the same or similar character of counts 1, 2 and 5 within sch 1 cl 7(3)(a).
Are the offences alleged to arise substantially out of the same or closely related acts or omissions?
The words 'arise substantially out of … the same or closely related acts or omissions' have a wide reach: Zammit. The question of whether the facts are closely related is one of degree but it appears that what is required is that the offences are traceable either in time, place or circumstance to common events: R v Collins; Ex parte Attorney-General [1996] 1 Qd R 631, 637; Zammit.
There is a clear nexus in relation to counts 1 and 2, the nexus being provided by the time and place of those offences. There is a clear nexus between counts 1 and 5 as the complainant is the same.
Counts 3 and 4 involve different acts towards a different complainant on a different date to counts 1, 2 and 5.
The State submits that Mr Bonwick had a distorted belief that Ms Smartt was still in a relationship with him and that she had been cheating on him and that all the offences arise as a result of those beliefs and his efforts to search, locate, question, intimidate and harass her.
Counts 1 and 2 arise directly out of the response by Mr Bonwick to his perceived personal relationships. Mr Bonwick assaulted Ms Smartt as a result of their personal relationship (count 1) and count 2 involves his attempts to drive off in the taxi with Ms Smartt and is directly related to Mr Bonwick's desire to control his perceived personal relationship.
Counts 3 and 4 are, on the State's case, referable to Mr Bonwick's desire to locate Ms Smartt and his belief that Ms Rowe was hiding her and count 5 is referrable to his efforts to locate her.
There is a close relationship in time insofar as these offences are concerned. Although there is not necessarily any relationship in the legal characteristics of the offence, the nature of the crime, the circumstances in which they are allegedly committed all relate to Mr Bonwick's perception of the need to control and dominate his personal relationship with Ms Smartt. The offences can be said to arise 'substantially out of ... the same or closely related acts or omissions.'
In those circumstances I am satisfied that sch 1 cl 7(3)(b) is satisfied.
Do the alleged offences arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose?
I am satisfied that counts 1 to 5 can be said to arise from a series of acts or omissions done in the prosecution of a single purpose pursuant to sch 1 cl 7(3). The purpose referred to in sch 1 cl 7(3)(c) has a broad meaning.
All counts on the indictment are offences which on the State's case arise from a series of acts done in a prosecution of a single purpose, that is, Mr Bonwick exercising control and dominance over his perceived personal relationship with Ms Smartt.
Count 2 is an offence which arose out of an act done in the prosecution of his purpose of domineering or controlling Ms Smartt. The offence is so connected in time and place to count1 and his efforts to drive off with her in the taxi he was trying to steal led to the clear inference that that offence was committed in the prosecution of that purpose.
I am satisfied that the appropriate nexus exists even if the evidence in respect of the counts was not cross-admissible.
This is not to be taken as supporting the defence view that the evidence is not cross-admissible. It seems to me that the evidence on counts 1 and 2 and other evidence of other acts that the State seeks to lead is relevant and admissible background as to the commission of count 5 and admissible to explain the nature of Ms Bonwick and Ms Smartt's relationship.
Evidence of the relationship, including incidents not the subject of counts on the indictment, between the accused and the complainant is admissible at common law to put the facts in their proper context so the jury can understand the charges alleged to have committed by the accused against the background of the relationship that has existed between the parties: Wilson v The Queen (1970) 123 CLR 334, 399.
The evidence is admissible not simply because it describes the relationship of the parties, but because the acts of the parties occurring within that relationship are relevant to issues before the jury, particularly whether the parties had a good relationship despite differences and disagreements or whether their relationship in which violence occurred during the course of disagreements. For a jury not to be aware of events, throwing light upon their relationship, would be to require the jury to decide the issues in a vacuum rather than in the context of the true relationship between them: Wilson v The Queen.
Evidence in respect of counts 3 and 4 is also admissible in respect of count 5 as relevant to the identity of who it was that attended Ms Smartt's residence. The fact that Mr Bonwick had only hours before attended Mr Rowe's residence and accused him of hiding Ms Smartt is probative of whether having received a negative response to his query from Mr Rowe he then went to Ms Smartt's residence. The State are entitled to lead evidence which establishes, as part of their circumstantial case, that it is more likely that it was the accused who went to the residence than some other person. Although there have been no admissions by Mr Bonwick that he was the person who attended the residence, Ms Londsdale said Mr Bonwick would admit that he attended the premises and entered the house. Evidence in respect of counts 3 and 4 is also admissible in relation to count 5 as probative of whether he behaved towards Ms Smartt in a 'possessive' or 'controlling' manner and therefore supportive of her evidence that once in the house he acted in a controlling manner, by accusing her of cheating on him, and trying to take possession of her phone.
It appears to me that evidence on counts 3 and 4 is not admissible in respect of counts 1 and 2.
If Mr Bonwick pleads guilty to count 5 that may require that the severance issue be revisited. All five offences are in my opinion properly joined on the indictment pursuant to cl 7(3)(c) as acts done in the prosecution of a single purpose that is Mr Bonwick exercising control and dominance over his perceived personal relationship with Ms Smartt.
Is there prejudice to the accused?
Even if charges are properly joined there are some circumstances where an accused is likely to be prejudiced by a joint trial and the court may sever the indictment. The prejudice referred to is a prejudice to the fairness of the trial.
Section 133 of the CPA provides:
133.Separate trials, court may order
…
(4)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order —
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
(5)In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court —
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if —
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another, as the case requires.
The court must be satisfied there are reasonable grounds to conclude the accused is likely to be actually prejudiced by a joint trial before it can order severance: The State of Western Australia v Micalizzi [2010] WASCA 147.
If a conclusion is reached that Mr Bonwick is likely to be actually prejudiced, the court has the discretion to order separate trials.
In exercising that discretion, regard must be given to whether the prejudice can be removed by a direction to the jury irrespective of the nature of the offence and irrespective of whether the evidence is admissible or cross‑admissible as the case may be: s 133(5) CPA; R v Braysich [2006] WASCA 220; (2006) 166 A Crim R 109.
The mere fact that evidence is admissible in respect of one count but not in respect of other counts, is no basis to order separate trials. It is common in trials for evidence to be admissible only in respect of some counts. In this case in my view, evidence on some counts is admissible in respect of other counts but not in all cases does the reverse apply. This is a matter to consider but not determinative.
If evidence on one count is admissible in relation to another count impermissible, prejudice cannot arise: Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122.
Generally it is accepted that a properly instructed jury is capable of following the trial judge's direction: Kalani v The State of WesternAustralia [2013] WASCA 132. However it is acknowledged that there are some cases where the prejudice cannot be overcome by a direction: Zammit [65]; Leaman v The Queen (1987) 28 A Crim R 104, 112 ‑ 113.
There is the likelihood of some prejudice flowing to the accused because an uninstructed jury may consider that because Mr Bonwick has committed some of the offences on the indictment he is therefore the type of person who is likely to have committed other offences or is a person of such bad character that the jury should convict irrespective of the evidence.
I am however, satisfied that this prejudice can be cured by direction. It is accepted that juries faithfully follow judges' directions.
The overriding question is whether separate trials are required to ensure a fair trial. That involves a consideration of the interests of the accused and the public interest: The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 [67] (Buss JA).
As Zammit points out, a single trial promotes consistency in decision‑making, promotes due and expedient administration of criminal justice, saves court time and expense and the convenience of witnesses.
However, my decision is based on the fact that the counts are properly joined and any prejudice to Mr Bonwick can be overcome by direction.
I am satisfied that the counts are properly joined and that any prejudice to Mr Bonwick can be remedied by judicial direction.
I dismiss the application.
0
13
1