The State of Western Australia v Roe [No 2]
[2015] WASC 387
•13 OCTOBER 2015
THE STATE OF WESTERN AUSTRALIA -v- ROE [No 2] [2015] WASC 387
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 387 | |
| Case No: | INS:96/2015 | 29 SEPTEMBER 2015 | |
| Coram: | HALL J | 13/10/15 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for separate trials granted | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA JOEL ROBERT ROE JOSHUA LUKE HINTON |
Catchwords: | Criminal law Application for separate trials Joinder and severance Propensity evidence Identification in issue Turns on own facts |
Legislation: | Criminal Procedure Act 2004 (WA), s 133, sch 1 div 2, cl 7 |
Case References: | Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 Horsman v The State of Western Australia [2008] WASCA 190 In Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 Kalani v The State of Western Australia [2013] WASCA 132 Leaman v The Queen (1987) 28 A Crim R 104 Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 The State of Western Australia v Micalizzi [2010] WASCA 147 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
JOEL ROBERT ROE
First-named Accused
JOSHUA LUKE HINTON
Second-named Accused
Catchwords:
Criminal law - Application for separate trials - Joinder and severance - Propensity evidence - Identification in issue - Turns on own facts
Legislation:
Criminal Procedure Act 2004 (WA), s 133, sch 1 div 2, cl 7
Result:
Application for separate trials granted
Category: B
Representation:
Counsel:
Prosecution : Mr D A Jubb
First-named Accused : Ms S M De Maio
Second-named Accused : Mr G C Christou
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
First-named Accused : Sandra De Maio Criminal Lawyer Pty Ltd
Second-named Accused : Legal Aid (WA)
Case(s) referred to in judgment(s):
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Horsman v The State of Western Australia [2008] WASCA 190
In Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
Kalani v The State of Western Australia [2013] WASCA 132
Leaman v The Queen (1987) 28 A Crim R 104
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
The State of Western Australia v Micalizzi [2010] WASCA 147
- HALL J:
The application
1 The indictment in this matter contains two charges. The first charge alleges that Joel Robert Roe (Roe) committed an offence of aggravated robbery on 14 July 2013 at Eden Hill. The second charge alleges that Roe and Joshua Luke Hinton (Hinton) committed an offence of aggravated armed assault with intent to rob on 2 August 2014 at Ashfield. Both accused have entered pleas of not guilty and the trial is set down for five days commencing on 17 November 2015.
2 Roe has applied for the indictment to be severed and for each of the counts to be the subject of a separate trial. He submits that the two counts are not properly joined but that, even if they are properly joined, a joint trial would be unfair to him as he would be likely to suffer prejudice that could not be guarded against by directions to the jury.
The prosecution case
3 The prosecution case in respect of the first count is as follows. At about 6.15 pm on 14 July 2013 the complainant was walking in a southerly direction along Ivanhoe Street in Eden Hill. The complainant is a 27-year-old man from Japan who was in Australia on holiday. He was walking towards the Bassendean train station.
4 The complainant was then approached by two men who were walking in the opposite direction. Without warning the two men commenced punching the complainant to the face and upper body. He stumbled backwards and dropped some possessions he was carrying. One of the men yelled at the complainant, however he was unable to understand what was being said as he had a limited understanding of English.
5 The complainant ran across the road and was pursued by the men who continued to punch him. One of the men dropped a baseball cap that he had been wearing. The complainant again attempted to flee but was caught and told by one of the men to 'be quiet or I'll kill you'. The same man then punched the complainant in the face before demanding money.
6 The complainant pulled out his wallet and handed the man approximately $200 in cash. The man then demanded the complainant's wallet, which was handed over. The two men walked away and the complainant sought assistance. Police attended the scene and seized the baseball cap.
7 About two hours later, at 8.15 pm that night, Roe attended at the house of friend in Lockridge. He was intoxicated and told to leave by his friend's mother. She pushed him and he fell down the steps at the front of the house. After he had left she found a black wallet at the bottom of the steps. The wallet was later identified as belonging to the complainant.
8 The complainant gave a description of the two men who had attacked him to the police. He described both men as being dark skinned and having black hair. One was no taller than 175 cm and the other was slightly taller. One of them looked overweight. He said that they were both wearing hats but he could not recall their clothing. He did not identify Roe from a digi-board. Whilst it is alleged that one of the men was Roe, it is not alleged that the other man was Hinton. No forensic evidence was obtained from the cap, or otherwise, that could identify Roe as one of the offenders.
9 Police later obtained CCTV footage from a supermarket that was approximately 100 m from the scene of the incident. That footage is alleged to show that at 7.58 pm on the evening of 14 July 2013, Roe was at the supermarket. Some months later Roe was arrested and interviewed. He denied any involvement in the offence but agreed that he appeared on the CCTV footage from the supermarket, that the cap looked like one of his but that he had given it to one of his mates and that he did not remember being in possession of the wallet but if he was he must have found it.
10 The facts in respect of the second charge are as follows. At about 7.40 pm on Saturday 2 August 2014 the complainant, a 17-year-old male Asian student, was walking to a local supermarket in Ashfield. When he reached the shop he passed through a group of about five people who were outside. He felt as though they were watching him and this made him uncomfortable.
11 After purchasing some potato chips the complainant began to walk home. He heard someone yell 'hey man stop'. He continued to walk and then felt some spray on the left side of his face and in his left eye. He immediately felt burning in that eye. He then heard someone say 'give me your money'. He felt someone holding his right hand and dragging him by the jumper across the road. He then observed a red car approaching which slowed down and opened its passenger door. The person holding him let go and his attackers left the area. He got into the red car which was being driven by an older man and was dropped back at the supermarket. The complainant did not see and was, therefore, unable to describe his attackers.
12 Isaiah Ward states that he was at Ashfield Park with Roe, Hinton and two others. He states that they arrived at the park at around 7.00 pm or 7.30 pm. He saw Roe with a can of pepper spray which he thought was about half full. The group was drinking Bourbon in the park and members of the group went to the supermarket to purchase mixers. He says that he saw an Asian boy walk out the store and then heard one of his own group say 'I don't like Asians it's my country'. Some of the group walked back towards the park but Roe and Hinton went in a different direction. About five minutes later Roe and Hinton came running back past the group and a red car then drove towards the group, did a U-turn and drove off. Roe and Hinton made several comments which Ward understood to mean that they had attacked an Asian boy. He recalls Roe saying 'we sprayed some guy', ' he was on the ground crying', 'some dude tried to run us over' and that he had said 'gimme your shit now' or something like that. Ward recalls both Roe and Hinton saying 'the Asian guy jumped in the car and took off'.
13 Neil Gerardi was also a member of the group at Ashfield Park. He also remembers Roe and Hinton being in the group. He saw Roe with a can of pepper spray. He saw an Asian boy leaving the store and Roe and Hinton walk around the corner. One or two minutes later they came rushing back towards the group and Roe was putting something in his pocket. Hinton said 'let's go, let's go, hurry up'. Roe said 'come on, get the fuck out of here'.
14 When interviewed in regard to the second charge Roe made no admissions. Other than the evidence I have referred to, there is no other evidence that identifies him as being one of the two attackers.
Submissions by the accused
15 The accused submits that the two charges are not properly joined in the same indictment. This is said to be because they do not form or are part of a series of offences that are the same or of similar character: cl 7 sch 1 Criminal Procedure Act 2004 (WA). In this regard the accused relies upon the following facts: that the two offences were committed in different locations; that they were committed almost 13 months apart; and that the co-accused in respect of count 1 is not alleged to be Hinton and is unknown.
16 Whilst both offences could be characterised as stealing with violence, the use of pepper spray in the second offence is said to be distinctly different in nature and duration from what occurred in the first offence. It is said to be not sufficient that charges be merely of the same or a similar character for them to be included on the same indictment, what is necessary is that the same or similar offences must also form or be part of a series of offences.
17 Even if the two charges are properly joined Roe submits that he would be unfairly prejudiced if the two counts are tried together. The critical issue in both counts is identity. In respect of the first count the only significant evidence that could link him to the offence is the wallet. However, the wallet was not discovered until two hours after the incident and there are other inferences available that are consistent with innocence and that could not be excluded on the available evidence. In particular, it is submitted that the possibility that he was given the wallet by the real perpetrators cannot be excluded.
18 In regard to the second charge the prosecution case critically depends on the evidence of Ward and Gerardi, who are said to be persons of interest in respect of the matter. I assume that this means that they could be regarded as having had some involvement and that their evidence should be viewed with caution. In any event, it is plain that their credibility and reliability as witnesses will be in issue.
19 It is submitted that the evidence in relation to each charge when viewed separately is weak. It is said that the State is seeking to shore up the prosecution case in relation to each of the charges by trying them together in circumstances where the alleged offences are not clearly related. It is said that the prejudice cannot be overcome by a judicial direction because there is a real risk that a weak case in relation to each count will become immeasurably stronger by reason of the joinder. It is also submitted that if the jury convict on the first count then the use of that conduct as propensity evidence in respect of the second count is likely to affect the assessment of the credibility, reliability and honesty of the witnesses to be called on the second count.
State's submissions
20 The State submits that the two charges are properly joined because they form or are part of series of offences of the same or similar character. The connection between the offences is the alleged involvement of Roe in each case.
21 The State says that there is a nexus between the two counts for the following reasons:
(1) the offences both occurred in the evening at approximately 6.30 pm and 7.45 pm respectively;
(2) the offences occurred while the offenders were in company;
(3) the offences involved the theft or attempted theft of property with the use of violence on lone males walking in the street;
(4) the offences were perpetrated against Asian victims;
(5) the offences occurred in adjoining suburbs within approximately 3 km of each other; and
(6) the offences occurred within approximately a year of each other.
22 Further, the State contends that, although not a requirement for proper joinder, evidence of the alleged conduct in each count is cross-admissible as propensity evidence. Where evidence on one count is admissible in relation to another no prejudice can flow from the joinder of those counts and it would not be properly open to make an order for separate trials. It is said that if there is any prejudice to the accused it can be guarded against by appropriate directions.
Joinder
23 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 notices or indictment must contain one charge only unless cl 7 or another written law permits otherwise.
24 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.
(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.
26 In the present case the State only relies upon the first limb of cl 7(3), that is that the offences form or are part of a series of offences of the same or similar character. In Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [22] - [26], Steytler P said:
The meaning of the words 'series of offences of the same or a similar character', which appear in cl 7(3)(a), has been considered in cases in Australia and in the United Kingdom.
In R v Kray [1970] 1 QB 125 the Court of Appeal in England considered the effect of r 3 of Sch 1 to the Indictments Act 1915 (UK) which read as follows:
'Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character.'
The Court (Widgery and Fenton Atkinson LJJ and James J) considered (at 130) that the word 'series', in this context, encompassed two or more components (it was followed in this respect in Lancaster v The Queen [1989] WAR 83 at 86). The Court said, of the words 'offences … of a similar character' (at 130 - 131):
' … [O]ffences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases.'
They went on to illustrate this by reference to R v Clayton-Wright [1948] 2 All ER 763. In that case four counts against the accused had been joined, being arson of a vessel, arson of the same vessel with intent to prejudice the insurers, attempting to obtain money by false pretences from those insurers in respect of a policy on the vessel and attempting to obtain money by false pretences from insurers by falsely pretending that a mink coat had been stolen from his motor car. Lord Goddard said at 765 that the charge with regard to the mink coat 'was a similar charge of swindling underwriters, and, therefore, one gets what I may call the nexus of insurance, the nexus of fraudulent acts to the prejudice of the underwriters … '.
In Ludlow v Metropolitan Police Commissioner [1971] AC 29, the House of Lords held that a 'sufficient nexus' encompassed both the law and the facts relating to the offences (this conclusion was agreed with by Brennan J in Sutton v The Queen (1984) 152 CLR 528 at 540 - 541). The indictment in Ludlow alleged two counts. The first was attempted larceny from a public house. The second was robbery with violence, which also occurred at a public house when the accused refused to pay for a drink. The two offences were committed within 16 days of one another. The House of Lords held that the offences were similar in law, since both contained stealing or attempted stealing as an element. They also had similar factual features, because both took place at public houses within a relatively short period of time. The Court also approved what had been said in Kray to the effect that, while a nexus is certainly established if the offences are so connected that the same evidence would be admissible in respect of each, the rule was not restricted to such cases.
In De Jesus at 9, Dawson J accepted that for two or more offences to constitute a series there must be a connection or nexus between them. He went on to say:
'This, I think, is something different from the express requirement in s. 585 that the offences must be of the same or a similar character. Whatever may historically be behind the use of those words (cf. Archbold's Criminal Pleading Evidence & Practice, 42nd ed. at par. 1-77), as a matter of construction the requirement in my view refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance. Thus offences of rape are of the same kind and other offences of a sexual character, such as indecent assault, may be offences of a similar kind to rape.
Similarity may also indicate a nexus, but similarity of that kind relates rather to the facts alleged by the prosecution to constitute the offences rather than to their legal characteristics. The distinction may not be one which can be maintained with total precision, but it is useful because otherwise the expression used in s. 585 - "a series of offences of the same or a similar character" - is somewhat tautological, since similarity is itself one of the hallmarks of a series. Thus it was that Lord Pearson remarked in Ludlow, at 39 that "Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series". Even in that statement there is an element of circumlocution, but it is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. 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.'
Separate trials
28 Where multiple charges are properly joined in one indictment they must be tried together unless the court orders otherwise: cl 9. That position is justified because a joint trial promotes consistency in decision-making and facilitates a single inquiry into matters which arise out of, or essentially involve, common issues of fact or law. A joint trial will also prompt the due and expeditious administration of criminal justice, including saving court time and public expense and the avoidance of unnecessary inconvenience for witnesses: Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 [128]; see also Kalani v The State of Western Australia [2013] WASCA 132.
29 However, it does not follow that because charges have been properly joined as forming a series of offences of the same or similar character there must inevitably be a joint trial. The fact that there may be a nexus between charges does not exclude the possibility that in some circumstances a joint trial will be prejudicial to an accused and justify the exercise of the discretion to order separate trials pursuant to s 133 of the Criminal Procedure Act. The test to be applied in exercising this discretion differs from the requirements for charges to be joined on the same indictment.
30 Section 133 relevantly 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.
(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.
32 A conclusion that an accused would be likely to be prejudiced at a joint trial does not necessarily require that a separate trial be ordered. It merely enlivens the discretion to make such an order. In considering whether to exercise that discretion regard must be had to whether any prejudice can be adequately guarded against by the giving of appropriate instructions to the jury: s 133(5)(a) CPA.
33 The fact that evidence is admissible in respect of one count but not in respect of 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 accused or on only one count is received into evidence. Ordinarily a properly instructed jury is capable of distinguishing between evidence admissible in only one respect. There will however be cases in which the prejudice is so great that it cannot be overcome: Zammit [65]; Leaman v The Queen (1987) 28 A Crim R 104, 112 - 113.
34 On the other hand, if evidence on one charge is admissible in relation to another no impermissible prejudice can arise: Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122. In Donaldson the evidence in respect of the charges was cross-admissible on a propensity basis.
35 In the present case the State submits that the evidence in respect of each charge is cross-admissible on a propensity basis pursuant to s 31A of the Evidence Act 1906 (WA). The State submits that if the jury is satisfied beyond reasonable doubt that the accused committed either offence then that evidence would be of significant probative value in establishing that the accused committed the other offence.
36 The applicant's concern is that when viewed separately the identification evidence in respect of each of the counts is weak. Rather than the jury using propensity reasoning from a known conviction to determine whether the applicant is likely to have committed a further offence, they will be invited to look at all of the evidence to determine the issue of identity on both counts. In many cases involving propensity reasoning the evidence of other conduct will consist of past proven convictions, but this case differs in that identity in respect of both counts is disputed.
37 Propensity evidence can be used to establish identity but in order for that to be done where all of the offending is disputed there are two possible courses of reasoning. The first would necessitate a determination that the evidence establishes that both offences must have been committed by the same person. If that is so it would then be possible to use evidence in respect of either of the offences to establish the identity of that offender. In Horsman v The State of Western Australia [2008] WASCA 190, Buss JA noted that the proposition that when the identity of the offender is in dispute similar fact or propensity evidence should not be received unless it reveals a signature or some other special feature pointing to the accused has not been accepted in Australia [27]. See also Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413[52] - [53]. However, in Horsman the evidence was capable of supporting a finding beyond reasonable doubt that the same person committed each of the offences.
38 An alternative course of reasoning open to the jury would be to consider the evidence in respect of one or other of the counts in isolation and determine whether they are satisfied beyond reasonable doubt that the applicant was one of the offenders. They may then be able to use the evidence in respect of that count as propensity evidence to determine the identity of the offender on the remaining count (assuming the evidence otherwise meets the requirements of s 31A).
39 The difficulty in this case that the evidence in respect of each of the counts when looked at in isolation is, if not weak, certainly not strong. Despite the evident similarities between the two counts which justifies them being joined in the same indictment the two offences are not so strikingly similar that it would be possible to conclude to the necessary standard that both offences were committed by the same person. The difference in time and in the method of violence are relevant here. Also relevant is the fact that on each occasion a second person was involved but the prosecution do not allege that it was the same person.
40 In these circumstances the jury would necessarily have to follow the second course of reasoning, that is to look at one or other of the charges in isolation to see if it was proven beyond reasonable doubt that the accused was the offender. Counsel for the State did not demur from this requirement at the hearing of the application. 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.
41 For these reasons I consider that the prejudice to the accused could not be sufficiently alleviated by directions to the jury and that separate trials must be ordered. In doing so I recognise that in the event the applicant is convicted after the first trial his identity as the offender on that count would be conclusively established and it may be difficult for the applicant to resist evidence in respect of that conviction being used as propensity evidence to establish his identity at the second trial. That, of course, would be a matter for the trial judge at the second trial. Counsel for the applicant acknowledged this at the hearing.
42 Accordingly, I order that the two counts on the indictment be tried separately. Those trials can be heard consecutively on the days presently listed for trial.
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