Criminal law - Joinder of charges - Application for separate trials

Criminal Procedure Act 2004 (WA), s 133, sch 1 div 2 cl 7(3)

De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1

R v Cranston [1988] 1 Qd R 159

R v Kray [1970] 1 QB 125

Zammit v The State of Western Australia [2007] WASCA 66

(This judgment was delivered extemporaneously on 30 October 2009 and has been edited from the transcript.)

1 The accused, Beau James Punch, stands charged on an indictment containing six counts. The indictment is listed for trial commencing 7 December this year. He now applies for separate trials in respect of those counts.

2 There are two bases for seeking separate trials; firstly, that the six counts are not properly joined in the one indictment and, secondly, that a joint trial would be likely to prejudice the accused. In making a ruling at this stage I am obliged to do so on the basis of the facts as alleged by the State. In the absence of any contention that evidence relied upon by the State will be inadmissible, I will assume its admissibility for present purposes.

3 The alleged facts in relation to each count are as follows: at about 9.30 pm on 30 June 2008 the complainant in respect of count 1, who was then aged 66, was at home watching television when he heard someone yelling. The complainant knew the accused as the accused had stayed at his house some weeks earlier. The complainant intended locking the door and had his keys with him. He noticed a female and the accused, who he alleges surrounded him at the door. The next thing he recalls was coming to on an outside couch and that his keys were missing as was his car, although he could not recall at the time he gave his statement the registration number of the vehicle. Other evidence establishes that he was the registered owner of a gold Holden Commodore, registration number 1AEW-430. That vehicle was later that night the subject of a police chase. It is alleged that the accused was driving the vehicle, lost control of it and abandoned the car near Riley Road in Riverton. Those facts relate to counts 1 and 2 of the indictment.

4 Sometime later, either that evening or early the following morning, a Hyundai Excel, registration number 1BSG-069, being a vehicle that was light purple in colour, was stolen from a house in Como. The stealing of the second vehicle relates to count 3 of the indictment.

5 At 3.00 am on 1 July a complainant who was working at a service station in Willetton was confronted by a person who turned up to the locked front doors of the service station. He initially noticed someone hiding behind the door. He noticed that the person was wearing a black ski mask and appeared to be male and was also wearing dark coloured pants. He says that the person looked like he was also wearing a bandolier across his chest. The complainant then went to the back office and locked the door and watched the person on the monitor. The person stayed in the area for about 15 or 20 seconds and then drove off through the pump area. The complainant says the car looked like a silver coloured sedan. There is, however, surveillance footage of the vehicle and that footage shows the registration number to be 1BSG-069, the registration of the Hyundai that was the subject of count 3. Subsequently, that vehicle was located and forensic tests were undertaken of it and DNA, that is alleged to be the accused's, was found on the steering wheel. That attempted robbery is the subject of count 4.

6 About 40 minutes later, at 3.40 am on 1 July, a complainant working at a Caltex service station in Canning Vale had locked the door of the service station to go to the toilet. When he returned he observed through the glass doors a man walk to the doors who he could see clearly. He described the man as 170 cm, wearing denim jeans and a dark coloured grey shirt and wearing a black ski mask with the eye and mouth holes cut out. Because he could not see the face, he could not make out the colour of the skin. The person who was holding a large piece of wood about five feet long yelled out, 'Open the door', in an aggressive manner. The person hit the glass door with the length of wood three times and continued to yell, 'Open the door'. The wood did not break the glass and the person walked away from the store in a westerly direction. That attempted robbery is the subject of count 5.

7 Approximately half an hour later at 4.15 am a complainant, who was working at a BP service station in Huntingdale, was standing behind the counter and noticed a person outside the door but who had not yet pushed the security bell. The complainant was the only person able to unlock the door, which is locked at night. She had to push a button under the counter to unlock the door. She pushed the button and the door opened and the man stepped forward into the door preventing it from closing. His head was down and she could not see his face and when she asked him if he was coming in or going out, he pulled a black balaclava down over his face. He said, 'This is a robbery', and whilst he was walking towards her, used a large piece of wood to block the doorway. The complainant then walked to the office, locked the door and looked at the security screen. She remained in the locked room until police arrived. She described the perpetrator as being Aboriginal, 5 foot 7 inches to 5 foot 8 inches tall in his late twenties to early thirties with dark hair, wearing a black balaclava, black loose fitting top, possibly a hoodie or sweatshirt and dark track pants. She said that he stole a till which contained some $150 in cash. That armed robbery is the subject of count 6.

8 The accused accepts that counts 1 and 2 are properly joined together, as are counts 4 to 6, but it is contended that the three groups of charges; namely, counts 1 and 2, count 3 and counts 4 to 6, cannot properly be joined because there is no sufficient nexus between them. As to this, I refer to cl 7(3) of Sch 1 div 2 of the Criminal Procedure Act 2004 (WA). That clause 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;

(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.

9 As to the first limb of cl 7(3), whether there is a series of offences of the same or a similar character, I refer to the decision of the Court of Appeal in Zammit v The State of Western Australia [2007] WASCA 66, in which Steytler P cited with approval a passage from R v Kray [1970] 1 QB 125. In particular his Honour said:

[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.

10 In Zammit Steytler P also considered the High Court case of De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1, in which Dawson J referred to the issue of connection or nexus between offences where they are joined in the one offence in the context of s 585 of the Criminal Code (WA) which has now been repealed but was similar in this respect to the present provisions of the Criminal Procedure Act. In that case Dawson J said:

[A]s 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 ... which it is reasonably capable of bearing.

12 Further, in Zammit Steytler P cited with approval the remarks of Macrossan J of the Queensland Supreme Court in R v Cranston [1988] 1 Qd R 159, 164. In that case Macrossan J stated:

[H]owever imprecise those words might be, they 'call for the administration of a test in which time, place and other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present'.

13 In regard to the third limb of cl 7(3), whether offences form part of a series of acts done in the prosecution of a single purpose, in Zammit Steytler P said that the word 'purpose' where it appears in that clause has to be given a broad meaning. His Honour referred to the Western Australian case of Beck & Smith v R [1984] WAR 127, 133 in the decision of Brinsden J. In that case there was an obiter statement to the effect that sexual assault charges could be properly joined with an attempted murder charge because they arose out a series of acts done in the prosecution of a single purpose, the single purpose being to have sexual intercourse without consent and without being called to account. From that decision one can draw a conclusion that the offences might be different in their legal type but be nonetheless driven by a single purpose.

14 In the present case the offences that are contained in the indictment are all offences of stealing or with respect to which stealing is a common element. In respect of count 1 and counts 4, 5, and 6, violence or threats of violence is also a common element. That alone would not justify the joinder of these charges but it is also appropriate to take into account factors such as the time and place in which the offences are alleged to have been committed.

15 In this case I am satisfied that counts 1 and 2 and the other offences are connected in terms of their physical and temporal proximity. All of the offences are alleged to have occurred within a five hour period from the evening of 30 June 2008 to the early morning of 1 July 2008. They also occurred within a reasonably close physical proximity; that is, a number of suburbs that are reasonably contiguous in the south of the river area.

16 I accept that this gives rise to a logical and rational hypothesis that the accused stole the vehicle the subject of count 2, namely the Commodore, with a view to carrying out offences of the nature of a robbery, such as those which are the subject of counts 4 to 6. The ability to use that vehicle was, however, prevented by the fact that it was abandoned after the police chase some hours earlier.

17 It is then, I understand, the prosecution case that either at that time or sometime earlier the accused stole the Hyundai vehicle and that that vehicle was then used to carry out the offences the subject of counts 4 to 6. That the Hyundai was used in respect of count 4 is certainly supported by the surveillance video camera evidence.

18 In my view, there is a proper basis on which counts 1 and 2 can be joined with counts 3 to 6 under both the first and third limbs of cl 7(3); that is, those offences form or a part of a series of offences of the same or similar character and they are also, it could be justifiably concluded, offences which have been committed in the prosecution of a single purpose, that purpose being broadly defined as being an intention to commit armed robberies and to use a stolen vehicle as a getaway car.

19 In regard to count 3 which it was initially argued should stand alone, although that was not greatly pressed in oral argument, I am satisfied that that count is properly joined with count 4 and therefore counts 5 and 6 on the basis of the surveillance video evidence the vehicle stolen was used by the perpetrator in respect of count 4.

Prejudice - should a separate trial be ordered?

20 I turn then to the second question as to whether a joint trial of these six offences would be prejudicial to the accused. In that regard I refer to s 133 of the Criminal Procedure Act. Materially that provision provides in s 133(3):

(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.

21 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;

(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,

22 The State does not contend that the evidence in respect of counts 1 and 2 is propensity evidence from which the jury could conclude that the accused has a propensity to commit an offence of a certain type and therefore be more likely to be the offender in respect of counts 4 to 6. Rather, it is said to be relevant and admissible because it provides the context in which the offences in counts 4 to 6 were allegedly committed; it provides evidence of opportunity by the accused to commit the offences the subject of counts 4 to 6; it shows evidence of motive and it strengthens evidence as to identity.

23 I understand that it is alleged to strengthen evidence in respect of identity not merely because it shows an offence of a similar type being committed but also that that offence occurred in the same general locality and within a short period of time. The prosecution's submissions are that the evidence in relation to all counts is necessary to provide a jury with a complete picture of what is essentially described as a crime spree carried out by the accused over a short period of time and within a small geographical area.

24 It is said that the evidence of the complainant in relation to counts 1 and 2 is relevant and hence admissible in respect of the remaining counts for the following reasons. First, it places the accused within the geographical area in which those offences were committed some five hours prior to their commission, and accordingly is evidence of opportunity. Second, the evidence that the accused crashed the stolen Commodore, the subject of counts 1 and 2, is relevant evidence of motive in relation to the theft of the Hyundai, the subject of count 3, which vehicle was then used in the armed robbery, the subject of count 4. Third, identification of the offender is an issue, or is likely to be an issue in this matter, and the complainant in respect of counts 1 and 2 recognised the accused from previous dealings with him. The complainant alleges that it was the accused who stole his Commodore motor vehicle and the defence will contend that this is a case of mistaken identification. In that context evidence showing that the accused's DNA was on the steering wheel of the Hyundai will be relevant in an assessment of whether or not the complainant in relation to counts 1 and 2 has made an error in identification, and also strengthens the probability that the person who committed counts 4 to 6 is the same person who committed the offences the subject of counts 1 and 2.

25 I accept that the evidence in respect of counts 1 and 2 is properly admissible in the way that is suggested. That being so, no issue of prejudice would arise at a hearing of this matter other than any possibility that the jury, notwithstanding the relevance of the evidence, may use it to merely conclude that, if they decided the accused was the person who committed counts 1 and 2, they should therefore, and for no other reason, convict him of counts 4 to 6. Any such course of reasoning would, I expect, be the subject of a clear direction to the jury. That is a prejudice which is likely to arise in any case in which an accused is faced with a multiple number of charges and would normally and properly be the subject of a direction, and in my view such a direction would guard against prejudice, and usually does so.

26 In the circumstances of this case, even if I were incorrect as to the admissibility of the evidence in respect of counts 1 and 2 on the remaining counts it is my view that any prejudice that would be occasioned to the accused could be guarded against by an appropriate direction and therefore there would be no good reason to sever counts 1 and 2 from the balance of the counts. In those circumstances the application must be dismissed.