The State of Western Australia v Karolides - [2017] WASC 104

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- KAROLIDES [2017] WASC 104

CORAM: BANKS-SMITH J

HEARD: 6 APRIL 2017

DELIVERED : 13 APRIL 2017

FILE NO/S: INS 14 of 2017

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
PAULEY CHRIS KAROLIDES
Defence

Catchwords:

Criminal law - Application for separate trials - Where indictment contains two charges - Identification in issue on both charges - Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA), s 133, sch 1 div 2 cl 7

Result:

Application granted

Category: B

Representation:

Counsel:

Prosecution : Mr D A Lima
Defence: Ms L Zinenko

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Defence: WA Criminal Law

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

Horsman v The State of Western Australia [2008] WASCA 190
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489
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
BANKS-SMITH J:

Background

The accused applies for the separate trial of two charges in an indictment.
The first charge alleges that on 24 May 2016 the accused stole, with threats of violence, money and merchandise from the Adultshop store in Gosnells, and that he was armed with a gun.
The second charge alleges that on 25 May 2016 the accused stole, with threats of violence, money from the Adultshop store in Rivervale, and that he was armed with a gun.
The police obtained CCTV footage of both offences.

The prosecution case

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 accused 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 accused also told R that he had some sex toys;
(g)when the accused 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 accused's belongings from R's house and stored them at her house. The accused 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, bears a 'striking' resemblance to the gun used in the robbery. DNA recovered from the gun and car matched that of the accused;
(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 the accused.
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 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, pointed a gun at the attendant but did not speak to her;
(c)the gun had a wooden handle;
(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.
Identity is in issue on both charges. The accused was interviewed by police with respect to both offences but declined to comment.

Provisions relevant to joinder of charges and separate trials

Section 85 of the Criminal Procedure Act 2004 (WA) provides that the legal requirements of indictments are provided for by sch 1. Clause 2(3) of the Schedule reads as follows:
(3)A prosecution notice or indictment must contain one charge only, unless clause 7 or another written law permits otherwise.
Clause 7(3) of the Schedule 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(1) of the Schedule 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.
Section 133(3) of the Act provides:
(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.
Section 133(5) provides:
(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.

Joinder

The accused submits the two charges do not form part of a series of offences within the meaning of cl 7(3)(a). The accused submits the locations are not proximate; there is no positive identity evidence at either location; there is no forensic evidence linking the accused at either location; the methods of stealing are different (in Gosnells the offender speaks but not in Rivervale); and the items stolen are different (the offender took money in both offences but coins and sex toys only in Gosnells).
The State relies on s 7(3)(a) and submits there is a nexus between the two counts. It submits that both stores robbed are Adultshop stores; such stores are not usual targets for armed robberies in contrast to, for example, pharmacies; the timing was proximate; both offences involved a gun; the offender in each carried a bag (although different bags) and wore similar clothing; both covered their faces (although one also wore sunglasses); both are men of similar build and gait; the gun used in both is 'strikingly similar'.
Further, the State contends that a nexus is established in that the offences are so connected that evidence of one would be admissible in the trial of the other.
The principles with respect to what is required in order to characterise offences as the same or similar under cl 7(3)(a) were examined in Zammit v The State of Western Australia.[1] Relevantly, time, place and other circumstances of the offence as well as their legal character or category are all factors relevant to whether the necessary features of similarity and connection are present. Although a nexus is established if the offences are so connected that evidence of one would be admissible on the trial of the other, the rule as to joinder is not restricted to such cases.
[1] Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [22] ‑ [26].
In my view, leaving aside the question of cross admissibility, and acknowledging that there are some differences, the similarities by way of the nature of the shop, the proximity of timing and the manner of robbery are such that the two offences can properly be viewed as a series. Therefore, the two offences are properly joined on the same indictment.

Separate trials

It does not follow that because charges have been properly joined as forming a series there must be a joint trial. A joint trial may be prejudicial to an accused. It is still open to the court to exercise its discretion under s 133(3) of the Criminal Procedure Act to order that the accused be tried separately on the charges.
The State expressly asserts that the evidence in respect of each charge is cross admissible. It says its identity case is circumstantial and relies upon a holistic assessment of all of the CCTV footage from both offences and all of the evidence in the prosecution brief. Its position on identity can be summarised as follows:
(a)at the time of the offences the accused possessed a gun that looks similar to that in the CCTV footage for the Gosnells offence;
(b)the accused's DNA was found on a gun that looks similar to that in the CCTV footage;
(c)sex toys linked to the Gosnells offence were found at R's house where the accused had been residing and in the possession of O, who was connected to the accused;
(d)therefore circumstantial evidence as to the gun and the sex toys tends to prove that the accused is the person who committed the Gosnells robbery;
(e)there is an objective improbability that the two offences were committed by two different persons, taking into account the same matters referred to above as to the similar characteristics establishing a series;
(f)the gun used in the Gosnells offence and the Rivervale offence look similar; and
(g)therefore the circumstances collectively tend to prove that the accused committed both robberies.
The accused says the identification evidence when viewed separately for each offence is weak. There is no positive identity of the offender by the victims, there is no DNA linking the offender to the stores, there is no forensic link to the sex toys, there is no clear CCTV picture of the gun used in the offences and there is no evidence linking the particular blue bag to either store. As to the Rivervale offence, neither sex toys nor a blue bag featured. The accused says the State is seeking to shore up both cases by way of a joint trial.
The State places significant weight on the High Court's decision in Pfennig v The Queen.[2] Evidence relating to the abduction of H, an offence admitted by the accused, was admitted as to identity at the accused's trial for the murder of M. The High Court's examination of the admissibility of propensity evidence is well known and must now be read subject to s 31A of the Evidence Act 1906 (WA)[3] but for present purposes, the State relies on the general proposition expressed by the High Court that the probative value of similar fact evidence (which includes identity evidence) lies in the improbability of witnesses giving accounts of happenings having a degree of similarity unless the events occurred. The State says there is an objective improbability that the offences were committed by two different persons.
[2] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461.
[3] See PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489 [234] ‑ [236], [291]; Horsman v The State of Western Australia [2008] WASCA 190.
On the facts of this case, I consider greater assistance is to be found in the decision of Hall J in The State of Western Australia v Roe.[4] Roe concerned an indictment with two charges, one for aggravated robbery and one of aggravated armed assault. As in this case, there was no admission or known conviction setting a benchmark for identification. Identity was in issue for both offences.
[4] The State of Western Australia v Roe [No 2] [2015] WASC 387.
Hall J examined some of the relevant principles as to s 133 of the Criminal Procedure Act.[5] In summary:
(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.
[5] Roe [31] ‑ [38].
The State says that in this case, the jury will be invited to look at all the evidence to determine identity on both counts.
There are similarities between the offences, as outlined above. However, there are also differences; in particular the nature of the stolen items, the different bags, differences in disguise and the lack of any vocal direction in the second offence (and I note that the State and the defence take different views as to whether the CCTV footage is sufficiently clear to justify a description of the gun in each offence as similar). The circumstances are not so strikingly similar that a jury would inevitably conclude that both offences were committed by the same person.
Therefore, the second course of reasoning would be required: the jury would need to consider all of the evidence as to one or other offence to consider if it was established beyond reasonable doubt that the accused was the offender. However, as Hall J said in Roe:[6]
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.
[6] Roe [40].
In my view, this is 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. 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. That remains to be determined if and when such scenario arises.
Accordingly, I order that the two counts on the indictment be tried separately.