The State of Western Australia v Karolides
[2017] WASCA 111
•22 JUNE 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- KAROLIDES [2017] WASCA 111
CORAM: MITCHELL JA
BEECH JA
HALL J
HEARD: 13 JUNE 2017
DELIVERED : 22 JUNE 2017
FILE NO/S: CACR 95 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
PAULEY CHRIS KAROLIDES
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :BANKS-SMITH J
Citation :THE STATE OF WESTERN AUSTRALIA -v- KAROLIDES [2017] WASC 104
File No :INS 14 of 2017
Catchwords:
Criminal law and procedure - Application for separate trials of two counts joined on one indictment - Whether likely prejudice to the accused - Whether directions could guard against likely prejudice - Turns on own facts
Legislation:
Criminal Procedure Act 2004 (WA), s 133
Result:
Appeal upheld
Order for separate trials set aside
Category: B
Representation:
Counsel:
Appellant: Mr R G Wilson
Respondent: Mr T W McPhee
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: McPhee and Associates
Case(s) referred to in judgment(s):
Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kalani v The State of Western Australia [2013] WASCA 132
Leaman v The Queen (1987) 28 A Crim R 104
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
Re Attorney General's Reference No 1 of 1977 (1979) WAR 45
RMD v The State of Western Australia [2017] WASCA 70
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
Salehi v The Queen [1999] WASCA 279
Sweeney v The State of Western Australia [2006] WASCA 118
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Karolides [2017] WASC 104
The State of Western Australia v Micalizzi [2010] WASCA 147
The State of Western Australia v Roe [No 2] [2015] WASC 387
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
REASONS OF THE COURT:
Introduction
The respondent is charged, in summary, as follows:
(1)on 24 May 2016 he stole, with threats of violence, money and merchandise from the Adultshop store in Gosnells, and that he was armed with a gun; and
(2)on 25 May 2016 he stole, with threats of violence, money from the Adultshop store in Rivervale, and that he was armed with a gun.
The State appeals against an order for separate trials of the two counts.[1] In essence, the State challenges the primary judge's finding that the likely prejudice to the respondent from a single trial of both counts could not be adequately guarded against by a direction.[2] For the reasons that follow, we do not think that finding was open. Consequently, we would uphold the appeal.
[1] The State of Western Australia v Karolides [2017] WASC 104 (primary reasons).
[2] Primary reasons [26] ‑ [27].
The State case
The primary judge summarised the prosecution case on each count. There is no challenge on appeal to her Honour's summary.
The prosecution case on the first count is as follows:
(a)at about 9.50 am on 24 May 2016, a man entered the Gosnells Adultshop store in a hooded top with the hood on, and his face covered from his eyes down. He was carrying a bag;
(b)he approached the counter, pointed a gun at the attendant and told her to put money in the bag. She gathered notes and coins and put them in the bag. He took some boxes from the shelves and put them in the bag before leaving;
(c)the bag was blue and had handles and was shaped like a bowling bag;
(d)Adultshop records confirmed that five boxed sex toys were stolen in the Gosnells robbery;
(e)the respondent was staying with R for a few weeks in May 2016. During that time, he showed R a gun and R took some photos of the gun;
(f)the respondent also told R that he had some sex toys;
(g)when the respondent left R's house he left behind some belongings. R found two sex toys among the belongings. Police later seized the two sex toys. One could be linked by Adultshop records to the Gosnells robbery as it was still in its box. The other matched the description of a sex toy stolen in the Gosnells robbery;
(h)O had collected some of the respondent's belongings from R's house and stored them at her house. The respondent had told O he had some sex toys for her. Among the belongings were three sex toys. Their description matched those of the three other items stolen in the Gosnells robbery;
(i)police later found a gun in a car which, based on the CCTV footage, resembles the gun used in the robbery. DNA recovered from the gun and car matched that of the respondent;
(j)the gun in a photo taken by R looks like the gun found in the car; and
(k)police found a blue bag at R's house which had handles and was rectangular in shape and recovered DNA from it which matched that of the respondent.[3]
[3] Primary reasons [5].
The prosecution case on the second count is as follows:
(a)at about 12.45 pm on 25 May 2016 a man entered the Rivervale Adultshop store in a hooded top with the hood on, wearing sunglasses and with a scarf covering his face from the nose down. He was carrying a bag;
(b)he approached the counter, and pointed a gun at the attendant but did not speak to her;
(c)the gun had a wooden handle and resembles the gun later found in the car by police on which DNA matching that of the respondent was found;
(d)the attendant gathered notes and put them in the bag. She asked the offender if he wanted coins and he shook his head to signal no; and
(e)there were two customers in the store at the time who were unaware of the robbery.[4]
[4] Primary reasons [6].
There was closed circuit television footage of both offences. It is not possible to identify the offender from that footage. The respondent did not make any admissions to police in relation to the offences.
The respondent's application
Before the primary judge, the respondent applied for an order for the separate trial of the two charges pursuant to s 133(3) of the Criminal Procedure Act 2004 (WA).
In support of that application, the respondent also submitted that the two counts were not properly joined on the indictment.
The primary judge's reasons
The primary judge found that the two offences formed part of a series of offences of a similar character, within the meaning of cl 7(3)(a) of sch 1 of the Criminal Procedure Act, and so were properly joined on the same indictment.[5]
[5] Primary reasons [13] ‑ [17].
The primary judge relied significantly on the decision of Hall J in the The State of Western Australia v Roe.[6] The primary judge said that in Roe, as in the present case, there was no admission or known conviction 'setting a bench mark' for identification; identification was an issue for both offences.[7]
[6] The State of Western Australia v Roe [No 2] [2015] WASC 387.
[7] Primary reasons [22].
Her Honour adopted the principles stated by Hall J in Roe which she summarised as follows:[8]
(a)if the court is satisfied that an accused is likely to be prejudiced by the fact the indictment also includes another charge, then the discretion to order separate trials is enlivened;
(b)the fact that evidence is admissible in respect of one count but not the other is not of itself sufficient reason to order separate trials as a jury, properly directed, is capable of distinguishing evidence which is admissible for each charge. However, there may be cases where a direction under s 133(5)(a) cannot overcome likely prejudice;
(c)there is no impermissible prejudice if the evidence on one charge is admissible in relation to the other, for example, if it is admissible on a propensity basis;
(d)propensity evidence can be used to establish identity but where the offending is disputed, there are two possible courses of reasoning;
(e)the first course necessitates a determination that the evidence establishes that both offences must have been committed by the same person. If so, it is possible to use evidence in respect of either of the offences to establish identity; and
(f)the second course open to the jury would be to consider the evidence as to one offence in isolation and determine if they are satisfied beyond reasonable doubt that the accused was the offender. The jury may then be able to use the evidence as to that count as propensity evidence to determine the identity on the other count.
[8] Primary reasons [23].
There is no challenge to her Honour's summary of the relevant principles.
Her Honour identified differences between the two offences including the nature of the stolen items, the different bags, differences in disguise and the lack of any vocal direction in the second offence. Her Honour concluded that the circumstances were not so strikingly similar that a jury would inevitably conclude that both offences were committed by the same person.[9]
[9] Primary reasons [25].
Consequently, her Honour found that the second course of reasoning summarised in [11(f)] would be required: the jury would need to consider all the evidence as to one or other offence to consider if it was established beyond reasonable doubt that the accused was the offender.[10] Her Honour set out and evidently adopted the following statement of Hall J in Roe:[11]
Despite strong directions about the necessity of looking at the evidence separately in order to first determine whether identity on either count is established before using that evidence as propensity evidence to establish identity on the other count, there would be a significant risk that the jury would not look at the evidence in this way but would merely assume that the applicant must be the offender on both counts. It is likely that any jury would be unconsciously influenced by the allegation in respect of the other charge.
[10] Primary reasons [26].
[11] Roe [40].
Her Honour found that this was an example of a case where the prejudice to the accused could not be sufficiently alleviated by direction to the jury, and separate trials should be ordered. Her Honour observed that it may be that a conviction on the Gosnells charge establishing identity results in evidence as to that offence being admissible as to the Rivervale offence 'but that remains to be determined if and when such scenario arises'.[12]
[12] Primary reasons [27].
Consequently, her Honour made an order for the separate trial of counts 1 and 2.
Ground of appeal
The State appeals on the ground that the primary judge made an error of law in the exercise of discretion under s 133(3). The error is particularised as the error in deciding that the prejudice to the accused, namely the jury merely assuming the accused must be the offender on both counts and being unconsciously influenced by the allegation in respect of the other count, could not be sufficiently alleviated by direction to the jury. Leave to appeal on this ground was granted on 22 May 2017.
Legal principles
Joinder
Section 85 of the Criminal Procedure Act provides that an indictment must comply with sch 1 div 2. Schedule 1 div 2 sets out the rules relating to the content of prosecution notices and indictments. Clause 2(3) provides that a prosecution notice or indictment must contain one charge only unless cl 7 or another written law permits otherwise.
Schedule 1 div 2 cl 7 of the Criminal Procedure Act 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.
Clause 9 of sch 1 of the Criminal Procedure Act relevantly provides:
(1)If one prosecution notice or indictment contains 2 or more charges the charges must be tried together unless a court orders otherwise under this Act.
Thus, where more than one charge is properly joined in one indictment, all charges must be tried together unless the court orders otherwise. A number of public policy considerations underpin that statutory starting point. These include that joinder promotes consistency in decision‑making, facilitates a single and final inquiry into matters which arise out of or essentially involve common issues of fact and promotes the due and expedient administration of criminal justice.[13]
Severance
[13] Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [59]; Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 [128].
Section 133 of the Criminal Procedure Act provides, relevantly, as follows:
…
(3)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order ‑
(a)that the accused be tried separately on one or more of the charges; and
(b)the prosecutor to tell the court the order in which the charges will be tried.
(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.
Section 133(3) and s 133(4) are cognate provisions. Broadly speaking, the decisions of this court explaining the principles relevant to s 133(4) apply by analogy to s 133(3).
The discretion to order separate trials under s 133(3) is not enlivened unless and until the court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains two or more charges.[14]
[14] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [94]; The State of Western Australia v Micalizzi [2010] WASCA 147 [23]; Russell [335].
Thus, the court must determine whether it is satisfied of two matters: first, that an accused is likely to be prejudiced in the trial; and secondly, that the likely prejudice is caused by the fact that the prosecution notice or indictment contains two or more charges.[15] The expression 'in the trial' means in the hearing at which the verdict on each charge the subject of a prosecution notice or indictment is determined on the evidence adduced at that hearing. That is, the matter said to give rise to the likely prejudice must impact or affect what happens in the trial. The likely prejudice must be actual, not assumed, and must be in the trial itself.[16]
[15] Micalizzi [24].
[16] Micalizzi [25].
Section 133(5)(a) provides, in effect, that if a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment containing two or more charges, and the court is considering whether to order separate trials of the charges, it is open to the court to decide that any likelihood of prejudice 'can be guarded against' by direction to the jury and, in consequence, to decline to order separate trials.[17]
[17] Donaldson [95], [98]; Russell [336].
The words 'to so decide' in pars (b) and (c) of s 133(5) refer to the decision under par (a) of that subsection that any likelihood of the accused being prejudiced can be guarded against by direction to the jury.[18]
[18] Donaldson [96] ‑ [97]; Russell [337].
The question of what may constitute prejudice for the purposes of s 133(3) or s 133(4) is not limited to matters of such a nature as can be guarded against by a direction to the jury. Thus, prejudice may stem from some circumstance other than the admission of otherwise inadmissible and prejudicial evidence.[19]
[19] Micalizzi [26] ‑ [27].
Different views have been expressed in this court as to the scope of the discretion under s 133(3) and (4) once it is enlivened. In The State of Western Australia v Bowen,[20] Roberts‑Smith JA and Pullin JA construed s 133 as conferring a narrowly confined discretion. On their Honours' view the discretion to order severance would be exercised if and only if the court was satisfied that an accused is likely to suffer prejudice from a joint trial that cannot be guarded against by a judicial direction.[21] Buss JA expressed a different opinion. On his Honour's construction the discretion, once enlivened, is broad, and permits attention to a range of considerations including those which were relevant prior to the enactment of s 133. The overriding question is whether separate trials are required to ensure that the accused receives a fair trial. The public interest is also relevant.[22]
[20] The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81.
[21] Bowen [6] ‑ [8], [26].
[22] Bowen [67]; see also Russell [341] ‑ [350].
In The State of Western Australia v Micalizzi, McLure P said that it was unnecessary for the purposes of the appeal to address the question of the scope of the discretion. However, her Honour observed that her construction of what can constitute prejudice may be thought to favour Buss JA's view on the scope of the discretion.
It is not necessary to say anything about these differences of view since the issue in this appeal is whether it was open to conclude, as the primary judge did, that the respondent was likely to suffer prejudice in a trial of both counts that could not be guarded against by a judicial direction.
The fact that evidence is admissible against one accused, but not against another, or that evidence is admissible on one charge, but not in relation to another, is not of itself a sufficient reason to order separate trials. It is common in a joint trial that evidence admissible against only one of two or more accused is received into evidence. Similarly, it is common in a trial of more than one charge against an accused that evidence may be admissible in respect of only one of the charges.
As we have said, in deciding whether to make an order under s 133(3) it is open to the court to decide that any likelihood of prejudice can be guarded against by direction to the jury. In making that decision, the starting point is the law's general presumption that the jury will accept and faithfully apply the trial judge's directions.[23] However, there may be cases in which the prejudice is so great that it cannot confidently be concluded that a direction will overcome the prejudice.[24]
[23] Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22; Salehi v The Queen [1999] WASCA 279 [43]; Bowen [31].
[24] Re Attorney General's Reference No 1 of 1977 (1979) WAR 45, 47 ‑ 48; Bowen [54]; Zammit [65]; Leaman v The Queen (1987) 28 A Crim R 104, 112 ‑ 113; Kalani v The State of Western Australia [2013] WASCA 132 [79].
The question of whether a direction can guard against the prejudice to an accused from incriminating evidence that is admissible only against a co-accused will usually involve two issues. First, will an average jury be capable, as an intellectual exercise, of performing the task thus given to them; and second, 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 the particular accused even though it is inadmissible against him.[25] In our view, these same issues will usually arise where evidence is inadmissible on one or more counts in a multiple count indictment presented against a single accused.
The nature of the appeal
[25] Leaman (108 ‑ 109); Bowen [55].
A decision under s 133(3), like a decision under s 133(4), involves an exercise of discretion. An appellate court will not interfere with an exercise of discretion unless it is shown that the primary judge made a material error of law or fact. The appellate court is not entitled to substitute its own view for that of a primary judge merely because the appellate court would have exercised the discretion differently.[26]
[26] Bowen [23], applying Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; House v The King [1936] HCA 40; (1936) 55 CLR 499.
In this case, the State contends that the learned primary judge made an implied error in that the conclusions that the prejudice could not be alleviated by direction to the jury was plainly unreasonable and unjust, and one that was not open.
The disposition of the appeal
The State's ground of appeal invites attention to the likely prejudice identified by the primary judge and to whether it was open to conclude, as her Honour did, that that prejudice could not be adequately guarded against by a direction.
The critical steps in the primary judge's reasoning may be summarised as follows:
(1)the circumstances of the two counts are not so strikingly similar that the only available conclusion is that the same person committed both offences;[27]
(2)consequently, the only available permissible form of similar fact reasoning is to consider one charge in isolation and, if satisfied beyond reasonable doubt in relation to that charge, to use it as similar fact evidence on the other count;[28]
(3)by analogy with Roe, notwithstanding strong directions about the need to first look separately at whether evidence on one count standing alone is sufficient, there is a significant risk that a jury would 'merely assume' that the offender must be the same. The jury is likely to be unconsciously influenced by the allegation in respect of the other charge;[29]
(4)this is a case where the prejudice could not be sufficiently alleviated by a direction to the jury.[30]
[27] Primary reasons [25].
[28] Primary reasons [26].
[29] Primary reasons [26].
[30] Primary reasons [27].
On appeal, the State challenges the third and fourth of these steps. The State now accepts steps (1) and (2),[31] although, as we will explain in more detail later in these reasons, before the primary judge the State argued for the use of similar fact evidence on a different and wider basis.
[31] Appeal ts 7 ‑ 8.
On the State case, as articulated before this court, the jury would be invited to reason in the following way. The jury would first consider the question of guilt on count 1 by reference only to the evidence relating to count 1. The jury would disregard count 2 and the evidence relating to count 2 when assessing count 1. If and only if the jury were satisfied beyond reasonable doubt that the respondent was guilty of count 1, the jury would take its findings on count 1 into account in determining whether it was satisfied beyond reasonable doubt that the offender on count 2 was the respondent.[32] In that respect the State will point to a number of features of the evidence as sustaining the conclusion that the offender in count 2 was the same person who committed count 1. Among other things, the State relies on:
(1)the identity of the complainant: the same business entity was robbed, albeit in a different location;
(2) timing: the two offences were committed on consecutive days;
(3)weapon: in both robberies a similar looking gun was used, and in each case the offender pointed it at the retail assistant; and
(4)other details: in both robberies there was a single offender wearing a hooded jumper with the hood over his head and a scarf over his face. The offenders were both males of a similar height and build and with a similar gait.
[32] Appeal ts 2‑ 4, 7, 13.
Both before the primary judge and on appeal, the State's case relies in this respect on the common law principles for admission of similar fact evidence. The State contends that if the jury were satisfied, beyond reasonable doubt, that the respondent committed the offence which is the subject of count 1, then evidence of his commission of that offence would be admissible in relation to count 2 as similar fact evidence at common law. This is on the basis that, in that event, there would be no rational view of the evidence that is consistent with the innocence of the respondent.[33] The State says that it is objectively improbable that a person other than the respondent, but of the same height and build as the respondent, would coincidentally rob the Adultshop store in Rivervale the day after the respondent robbed the Adultshop store in Gosnells, using a similar gun, method and means of disguise. The State contends that the coincidental involvement of another person in the Rivervale robbery is excluded as a reasonable possibility.[34]
[33] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 482 ‑ 483.
[34] Appeal ts 6 ‑ 7.
The State informed this court that it may ultimately rely on s 31A of the Evidence Act 1906 (WA) but 'it's a matter for trial counsel'.[35]
[35] Appeal ts 5.
In our view it is, to say the least, surprising that the State has left unclear the basis on which it will invite the jury to rely on count 1 in its assessment of count 2. The application before the primary judge and this appeal are both concerned with whether directions to the jury can adequately guard against prejudice likely to be caused by the joint trial of both counts. Thus, the directions to be given to the jury about the use of the evidence or its verdict on one count in its deliberation on the other count are of central significance. It would have been conducive to clarity for any application to rely on s 31A to have been made, not left 'for trial counsel'. There is no apparent reason why the making of any such application should have been delayed.
Nevertheless, we accept the State's submission that this appeal can properly be determined on the basis of the State's case as presently formulated, and that the determination of this appeal does not involve the determination of any question which may arise as to whether the common law test is satisfied. Counsel for the respondent did not submit otherwise. Further, counsel for the respondent accepted that it may be difficult to resist an application under s 31A of the Evidence Act.[36]
[36] Appeal ts 22.
It can be seen from [38] above that the likely prejudice to the respondent which animated the primary judge's order for separate trials was the risk that the jury would assume the respondent was the offender on both counts or be unconsciously influenced by the allegation on one count while considering the other. The judge found that this likely prejudice could not be adequately guarded against by a direction that the jury must first consider one charge in isolation and, only if satisfied beyond reasonable doubt, use its finding on that charge in relation to the other count. The question is whether that conclusion was open.
Beyond quoting what was said by Hall J in Roe, the primary judge did not explain that conclusion. What was said in this respect in Roe was itself a conclusion based upon the detailed facts and circumstances of that case, including the assessment of the available evidence of identification on each of the charges. This appeal is not an occasion for this court to consider the exercise of the discretion in the Roe case. In our view, the circumstances of the Roe case were materially different from the present case. In short, the circumstances giving rise to the risk constituting the likely prejudice in Roe are not present in this case.
In Roe, there was some evidence tending to identify the accused on each count and, importantly, the identification evidence was materially different as between the two counts. In those circumstances, there was a danger that, in considering its verdict on a single count, the jury might unconsciously accumulate the identification evidence from both counts. Such an approach was not permissible.[37] It was that danger which constituted the likely prejudice found by Hall J that would not be sufficiently alleviated by directions to the jury.
[37] Roe [39].
In our view, in this case there is no such danger. Unlike in Roe, the evidence of identification as to count 2 does not add anything to the evidence of identification on count 1. There is no different or additional evidence tending to identify the respondent as the offender in relation to count 2. The only evidence tending to identify the respondent as the offender on count 2 is the offender's use of a gun which resembles the gun later found by the police and which had DNA said to be the respondent's. Evidence of the same character is part of the State's case on count 1, together with significant other evidence tending to identify the respondent as the offender on count 1. There is, therefore, nothing in the evidence that might tend to lead a jury, consciously or unconsciously, to use evidence on count 2 as probative of guilt on count 1 or to 'merely assume' that the respondent is the offender on both counts.
Directions are commonly given by a trial judge:
(a)identifying the evidence relevant to a particular count (count 1);
(b)directing that in determining its verdict on that count, the jury must consider only the evidence relevant to it; and
(c)directing that the allegation in another count (count 2) and the evidence relating to count 2 are irrelevant to count 1.
Such directions are readily capable of being understood by a jury. In our respectful opinion, in the circumstances of this case there is no reasonable basis to doubt that a jury would understand and apply such a direction. The intellectual exercise of performing the task identified in this way is, in our view, well within the capacity of a jury. Further, when regard is had to the nature and content of the State case on count 1 and count 2, there seems to us to be no reason to doubt that a jury could and would act in accordance with the direction.
The respondent submits that, notwithstanding that the jury would receive and understand such a direction, there is likely prejudice to him in the form of the risk of the unconscious influence of count 2 on the jury's assessment of count 1.[38] In this regard, the respondent points to:
(1)the 'salacious' identity of the complainant, and of some features of the evidence relating to count 1;
(2)the timing of the two offences, being only one day apart; and
(3)the prospect that, in its assessment of count 1, the jury would give weight to the fact that the respondent was charged with count 2.
[38] Appeal ts 18, 20 ‑ 22, 23 ‑ 24.
In our opinion, these matters, and the circumstances of this case as a whole, do not give rise to any real risk of the unconscious influence referred to by the respondent. The first and second matters do not have any logical connection to the jury's assessment of count 1. The particular character of the complainant on both counts has no tendency to suggest anything as to the identity of the offender generally or, in particular, to suggest that the offender on count 1 was the respondent. The same is true of the fact that another offence against the complainant was committed the day after count 1. Those matters do not logically bear on whether the State has proved that the person who committed the offence the subject of count 1 was the respondent. Further, it would be open to the trial judge to give a direction to the effect that any views that a member of the jury may have about the nature of the business of the complainant are irrelevant and do not bear upon its assessment of the issues at the trial.
The risk that a jury might give weight to the fact that the respondent is charged with count 2 in its assessment of count 1 will be properly guarded against by the trial judge's routine direction that the jury must not think that because the accused is charged with more than one offence, that affects the question of the accused's guilt in respect of any or all of the offences.
The combination of the three matters relied on by the respondent does not alter these conclusions.
There is nothing unconventional about a direction that the jury must be satisfied beyond reasonable doubt that the accused had committed one of the offences on the indictment before they could use the fact of that charge, or the evidence relating to it, in considering whether the accused was guilty of another charge. For a recent example of the use of a finding of guilt on one charge in the assessment of guilt on another, see RMD v The State of Western Australia.[39] Directions to that effect have been given in cases involving the use of similar fact evidence for the purpose of identification. For example, in Horsman v The State of Western Australia,[40] Buss JA (with whom Martin CJ and Miller JA agreed) said as follows:
The learned trial judge correctly directed the jury in relation to the basis on which they might use some of the identification evidence as similar fact evidence. In particular, his Honour told the jury:
(a)they must be satisfied beyond reasonable doubt that the appellant had committed one of the offences with which he was charged before they could use the facts of that charge in considering whether he was guilty of any of the other charges;
(b)if they were satisfied beyond reasonable doubt that the appellant had committed one of the offences, in considering the alleged similarities between that offence and any other offence, they should look to see whether the similarities were so striking or revealed such a clear underlying unity as to make coincidence a very unlikely explanation and whether the similarities indicated that the same person was responsible for the other offence they were considering;
(c)they could only use the evidence of the alleged similarities to support the State's case on a particular offence if they were satisfied beyond reasonable doubt that the similarities existed because the appellant had committed that offence and had put his 'stamp' on that offence by those similarities;
(d)in deciding whether the appellant had put his 'stamp' on a particular offence, they should also consider any dissimilarities between the way in which the alleged offences were committed; and
(e)if they were satisfied beyond reasonable doubt that the appellant had committed a particular offence, they must not use a process of reasoning that he was a person of bad character or that he was the type of person who would commit any of the other offences.
[39] RMD v The State of Western Australia [2017] WASCA 70 [35], [56], [187].
[40] Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565 [30]. See also Sweeney v The State of Western Australia [2006] WASCA 118 [159] ‑ [160].
As this passage explains, the jury would also be directed that, if they are satisfied beyond reasonable doubt on count 1, they must not use any propensity reasoning, for example, that the accused is a person of bad character or the type of person who would commit robbery offences.
The respondent also made submissions directed to the strength or otherwise of the State case on count 1.[41] The apparent strength or otherwise of the State case on count 1 is not significant for present purposes. The jury will be directed to consider count 1 in isolation from count 2, and will decide whether it is satisfied beyond reasonable doubt accordingly. If and only if the jury is so satisfied, it will be permitted to use count 1 in its assessment of count 2.
[41] Appeal ts 23, 26 ‑ 27.
In our respectful opinion, it was not open to conclude that directions to the jury could not overcome likely prejudice to the respondent arising from the risk that the jury would be unconsciously influenced by count 2 in its assessment of count 1.
It must be said that, in several respects, the manner in which the State put its case before the primary judge did not assist the primary judge's consideration of the application. Before the primary judge, the State contended that the evidence on each count was admissible on the other.[42] In circumstances where, as we have explained, the identification evidence on count 2 did not and could not add anything to the identification evidence on count 1, such an approach is difficult to follow and apt to mislead. We have already made some observations about the failure of the State to make any application under s 31A of the Evidence Act. Further, as counsel for the State before this court accepted,[43] the State did not assist the primary judge with submissions as to directions that would alleviate any alleged prejudice, or with reference to any authorities concerning similar directions in other cases.
[42] ts 13, Blue AB 18; State's outline of submissions [3], [6]; Blue AB 115, 118 ‑ 119.
[43] Appeal ts 30.
Conclusion
For the reasons we have given, in our respectful opinion the primary judge erred in finding that the joint trial of both counts would cause prejudice to the respondent which could not be alleviated by directions to the jury. In the circumstances of this case, we do not think that conclusion was open.
For the above reasons, the following orders should be made:
1.The appeal is allowed.
2.The order made on 13 April 2017 in INS 14 of 2017 (that the two counts on the indictment be tried separately) is set aside, and there is substituted an order that the application dated 28 March 2017 is dismissed.
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