The State of Western Australia v Hapke

[2004] WASC 148

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HAPKE & ANOR [2004] WASC 148

CORAM:   JOHNSON J

HEARD:   30 MARCH 2004

DELIVERED          :   1 JULY 2004

FILE NO/S:   IND 87 of 2003

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

The State

AND

ROBERT GEOFFREY HILL
The Accused Hill

JASON GUY HAPKE
The Accused Hapke

Catchwords:

Criminal law and procedure - Application by one of the two co­accused for a separate trial - Identification evidence - Inconvenience to witnesses - Danger of evidence of witnesses affected by lapse of time causing inconsistencies to evidence

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

The State:     Mr R E Birmingham QC & Mr D H Mulligan

The Accused Hapke      :     Mr G Smith

The Accused Hill          :     Ms J T Fisher

Solicitors:

The State:     State Director of Public Prosecutions

The Accused Hapke      :     Greg Smith

The Accused Hill          :     Justine Fisher

Case(s) referred to in judgment(s):

R v Flaherty [1968] 3 NSWR 734

R v Grondkowski & Malinowski [1946] 1 All ER 559

R v Kray & Ors [1969] 3 All ER 941

R v Lake (1976) 64 Cr App Rep 172

R v Palmer [1969] 1 NSWR 484

R v Palmer [1969] 2 NSWR 13

Case(s) also cited:

Nil

1. JOHNSON J:  The applicant, Robert Geoffrey Hill ("Hill") is jointly charged with Jason Guy Hapke ("Hapke") with two counts of stealing a motor vehicle and two counts of armed robbery.  One of the armed robbery offences was committed at the City West Massage Centre.  The other offence was committed at BankWest, Osborne Park during which bodily harm was done to one of the bank officers.

2. The trial of these charges had previously been adjourned because of a failure by the State to properly prepare its case and to make timely disclosure of relevant evidence, in particular certain evidence of Suzanne Maree Stevenson.  Hill now seeks to be tried separately from Hapke.  The basis of that application is the adverse effect on Hill of the use which is to be made by Hapke of the evidence of Ms Stevenson.

3. Ms Stevenson was the manageress of the City West Massage Centre.  In Ms Stevenson's original statement dated 27 December 2002 she describes being robbed by two armed men wearing balaclavas.  She gave descriptions of the clothing of the offenders, their respective height and build, but did not identify Hill or Hapke as the offenders.  She gave no other evidence linking either accused to the incident.

4. In a subsequent statement dated 18 March 2004, some five days before the original trial date, Ms Stevenson stated that on 17 March 2004 she had a meeting with senior counsel for the State.  At that meeting she was shown a series of photographs of Hill and Hapke.  As I understood the position, these photographs were developed from film seized from a vehicle owned and driven by Hapke.  Ms Stevenson failed to recognise either man or the clothing they were wearing.  She was then shown a photoboard and identified one of the men in the photoboard as having attended at the City West Massage Centre at approximately 11 pm on the night of the robbery, several hours prior to the robbery taking place.  He was with another male of similar age, height and build, although the other man had "blondey ginger type hair".  The two men waited at the Massage Centre for only a short time and did not avail themselves of the Centre's services when approached by one of the employees.  The person identified by Ms Stevenson more than a year after the event was Hill.  It is agreed that the person with him at the Massage Centre was not Hapke.

5. The background to this identification was that Ms Stevenson had on some earlier occasion attended Court to look at Hapke to see if she recognised him.  She did not.  It was on that basis that she was shown by senior counsel a photoboard of Hill and not one containing a photograph of Hapke.

6. Because of the circumstances in which the identification was made, senior counsel for the State properly determined not to lead that portion of Ms Stevenson's evidence.  However, a statement having been taken and served on both defence counsel, counsel for Hapke became aware of the identification evidence and proposes to cross‑examine Ms Stevenson upon it.  As a consequence, the jury will become aware of the allegation that Hill was present at the Massage Centre a relatively short time before the robbery took place in circumstances which could be seen as obtaining information about or "casing" the premises.  Counsel for Hapke has advised the Court that he is firm in his intention to cross‑examine on this issue, irrespective of whether separate trials are ordered.

7. I am told by counsel for Hapke that there is a twofold purpose to the cross‑examination.  The first is to underline the fact that Ms Stevenson at no stage was able to identify Hapke.  The second is to establish and reinforce to the jury that, although Hill was one of the two men she recalls seeing several hours before the offence, the other person was not Hapke.  I would have thought that the first issue could easily be dealt with by simply eliciting from the witness that she has never identified either of the offenders as Hapke.  Indeed, senior counsel for the State has undertaken to provide an additional statement confirming that Ms Stevenson has at no stage identified Hapke.  The second purpose is not so easily resolved.  In circumstances where the robbery of the Massage Centre is committed by two men, and a witness can identify Hill and another man present at the premises at an earlier time, if the subsequent robbery is found to be committed by Hill, then it is open to a jury to conclude that the man who visited the premises with Hill is the other offender.  On that basis, I would consider it relevant for the defence to establish, not only the fact that the other person could not be identified, but that the other person could not have been Hapke.

8. There is, of course, a prejudice to Hapke in raising this line of cross‑examination.  In submissions, this approach to defending Hapke was described as a bold step.  The fact is that there is other admissible evidence linking Hapke with Hill on the day of the Massage Centre robbery.  The risk is that this evidence, when considered with the evidence that Hill was one of two men present at the Massage Centre a few hours prior to the commission of the offence, might lead a jury to conclude that Hapke was also involved in the offence.  However, counsel for Hapke advises that this is a risk which he is prepared to take.

9. It is Hapke's counsel's intention to cross‑examine on this evidence which forms the basis of Hill's application for a separate trial.  Counsel for Hill submits that the adverse impact of this evidence on the case against Hill is significant and can only be remedied by holding separate trials.  The submission is maintained despite the concession that a separate trial will involve some inconvenience and duplication.

10. Senior counsel for the State raises two issues in response to the application.  The first is whether counsel for Hapke would even be given leave to cross‑examine on the issue of the later identification of Hill by Ms Stevenson.

11. Despite having made some observations on this issue, in my view this issue is one for the trial Judge.  I do not consider that the outcome is so self‑evident as to determine this application.

12. The second issue raised is the prejudice to the prosecution, its witnesses and the public if the trial of these accused were to be held separately.  The charges are particularly serious.  Indeed, in the robbery of the BankWest premises, at least one of the tellers was most brutally treated.  A lump of her hair was grabbed and she was pulled backwards to the safe, all the while being threatened with a shotgun.  Indeed, I am told that, as a result of being terrorised during the incident and despite the considerable time lapse, two bank officers have not yet returned to work.  Such was the trauma that one of the bank officers suffered, an application will be made for her psychologist to be in attendance when she gives evidence.  These are two examples of the significant adverse impact on witnesses of giving evidence even once, let alone twice.

13. The reference to the particular experience of these two witnesses, and the consequence to them, should not be seen as minimising the effect on every witness who is required to give evidence in a criminal court.  It is not difficult to accept that most witnesses who have been exposed to the trauma of an armed robbery offence will have difficulties in recounting their experience and being subjected to cross‑examination.  Counsel for Hill states that it is not her intention to cross‑examine the eyewitnesses to the events at any length or with any degree of aggression. She asserts that the witnesses will not, therefore, be put through any additional trauma other that the fact of having to undergo the experience twice.  In my view, counsel's assurances, however well intentioned, do not remove the clear prejudice to the witnesses of having to give evidence twice.  In this regard, the position of the two BankWest officers is of particular concern.

14. Some 43 witnesses are currently named on the indictment.  There is every possibility that this number will increase in view of the additional material to which senior counsel referred when the adjournment application was made.  Not every witness will be required to give evidence twice, but, on reviewing the State brief, it is apparent that a significant majority will have to attend both trials should an order for separate trials be made.  The number of witnesses alone indicates that there will be a substantial loss of court time and court resources should separate trials be ordered.

15. Another significant factor raised on behalf of the State was the strength of the prosecution case against Hill.  Even without the evidence of Ms Stevenson, senior counsel describes it as overwhelming.  It is certainly strong.  I do not propose to refer in these reasons to every piece of evidence against Hill, only to identify some of the evidence which implicates him in both offences.

16. There is evidence from a witness named Joel John Kensitt, who shared a house with Hill in July 2002, that Hill and Hapke and an unidentified female were at the house on the evening of the Massage Centre robbery.  When Kensitt came home on that evening, there was a white GTS Commodore parked in the driveway.  There is other evidence that a similar vehicle had been seen outside the Massage Centre on two occasions on the day before the robbery.  Hill told Kensitt that he had stolen the car and they were going to hold up "some place".  Kensitt left the house at 10 pm, whilst Hill, Hapke and the female were still there.  When Kensitt returned home at 1 am, the car and Hill, Hapke and the female were gone.  By 8 am the next morning they had returned, but without the car.  Hill showed Kensitt $800 in a wad of cash and two mobile phones of a blue‑grey colour.  Hill's girlfriend was later seen with one of the phones.  Hill also had a black Quicksilver backpack.  Ms Stevenson's evidence indicates that the robbers not only took the cash from the safe, but also took two blue mobile phones and two sports bags.  Hill's girlfriend confirmed that during July 2002 she saw Hill together with Hapke.  On one occasion he asked her to throw away a black backpack into a bin in a park.  There is other evidence of the disposal of goods obtained in the robbery on the Massage Centre.

17. There is also evidence from a person who was being held in the East Perth lockup of a conversation with Hill in which Hill told him that he had committed two armed robberies; the City West brothel in Leederville and a service station or deli.

18. In relation to the stealing of the red Commodore and the robbery on the BankWest premises, there is evidence that Hill was seen with a female in the red Commodore on the day before the robbery.  There is further evidence that this vehicle was used in the commission of the bank robbery.

19. There is also considerable forensic evidence linking Hill to the BankWest robbery.  Hill's DNA was found in the red Commodore as was his fingerprint.  Senior counsel for the State also advises that that there is additional DNA evidence implicating Hill found on some latex gloves located in a vehicle being driven by Hapke in which nearly $30,000 in cash was secreted.

20. There is also evidence obtained from a covert agent planted in the Central Law Courts High Security Detention area.  Hill told him that he had robbed "BankWest and a couple of whorehouses".  Although the admissibility of this evidence will be an issue of trial, I am prepared to take it into account for the purposes of this application.

21. No doubt, all or most of this evidence will be contested.  Nevertheless, for the purposes of this application, there is a considerable amount of oral and forensic evidence linking Hill with all of the offences, as well as linking him with Hapke.

22. In my view, this circumstances of this case supports the basic principle that joint offences should be tried jointly:  R v Grondkowski & Malinowski [1946] 1 All ER 559 at 560; R v Lake (1976) 64 Cr App Rep 172 at 172 ‑ 173.  In R v Lake  the Lord Chief Justice, Forbes and Slynn JJ identified the reasoning behind the principle (at 175):

    "It has been accepted for a very long time in English practice that there are powerful public reasons why joint offences should be tried jointly.  The importance is not merely one of saving time and money.  It also affects the desirability that the same verdict and the same treatment shall be returned against all those concerned in the same offence.  If joint offences were widely to be tried as separate offences, all sorts of inconsistencies might arise."

23. Despite the potential for inconsistencies, in appropriate cases, severance will be granted.  The question of whether persons jointly charged should have separate trials is one for the discretion of the trial judge:  R v Palmer [1969] 1 NSWR 484 at 485; R v Flaherty [1968] 3 NSWR 734 at 737 ‑ 738. In exercising the discretion, the Judge is required to consider the interests of justice. However, that term is not synonymous with the interests of the accused: R v Grondkowski & Malinowski at 561. The phrase encompasses not only the interests of the accused in question, but also of other accused, the Crown, the witnesses and the public: R v Kray & Ors [1969] 3 All ER 941 at 944; R v Flaherty at 737 ‑ 738.

24. In this case counsel for Hapke proposes to adduce evidence from Ms Stevenson that is said to be prejudicial to Hill which would not be led if there was a separate trial.  However, that is not enough, of itself, to justify a separate trial.  In many cases the interests of justice can be met by holding a joint trial in which the trial Judge makes an appropriate direction to the jury.  The question is whether this is such a case.  In making this determination, I am mindful of the observations of Lee J in R v Palmer [1969] 2 NSWR 13 at 13:

    "It should not be assumed that the jury would not properly apply the Judge's direction as to what was evidence against whom and, if there was any disadvantage, it was outweighed by the fact that a joint trial would give the jury a complete picture of the relevant circumstances so that it could see the respective parts played by each of the accused."

25. Counsel for Hill submits that the adverse impact of this evidence on the case against Hill is significant and can only be remedied by holding separate trials.  I cannot accept either aspect of that submission.  Having considered the evidence to be led on behalf of the State, it is apparent that the evidence implicating Hill is particularly strong.  Conversely, the evidence sought to be adduced by Hapke is particularly weak.  The identification of Hill is made some 15 months after the event, as is the recollection that two people were in the Massage Centre on the day of the offence.  The evidence does not appear in Ms Stevenson's initial statement and it is reasonable to draw the conclusion that it was not mentioned to the police at the time.  When one considers the strength of the prosecution case and the circumstances surrounding the identification evidence, it is difficult to accept that any real prejudice will result to Hill from the evidence being led by Hapke, particularly where the issue can be dealt with by a direction from the trial Judge.

26. In most cases of this type, the evidence that is being led by one offender is evidence which is not admissible against the co‑offender.  That is not precisely the case here.  This is evidence against the co‑offender is technically admissible against him but is so unreliable that it would not be led against him by the prosecution.  However, despite the distinction, I consider the admission of the evidence can still readily be dealt with by a proper direction.

27. As I have indicated, I am firmly of the view that the evidence sought to be led can best be described as mildly prejudicial to Hill.  However, the prejudice to the State, the witnesses and the public is significant.  The number of witnesses alone indicates that, should separate trials be ordered, there will be considerable duplication, resulting in substantial loss of court time and court resources.  Without repeating the issues relating to particular witnesses, it is clear that holding separate trials will not only cause considerable inconvenience to a large number of witnesses, but has the potential to double the trauma to some of those witnesses.  There is also the danger that the evidence of witnesses may be affected by the lapse of time caused by severing the trials and by the effect of repeated cross‑examination.  The result may well be the inconsistencies warned of by the Court in R v Lake.

28. In balancing the competing positions and for the reasons to which I have referred, I have formed the view that the interests of justice clearly favour a joint trial.

29. I would dismiss the application for separate trials.