R v Burrows [2001] TASSC 90

Criminal Code 1924 (Tas), ss229(1)(b), 234, 257E, 311(2), 326(3).

Sutton v R [1984] HCA 5; (1984) 152 CLR 528, applied.

Judgment Number: [2001] TASSC 90

1 Application is made pursuant to the Criminal Code 1924 ("the Code"), s326(3), for severance of an indictment by which the accused is charged with 54 counts of stealing and one count of inserting false information as data.

2 Counsel for the accused submits that counts 46 - 55 should be severed from the indictment because:

h the inclusion of these counts in the indictment contravenes the Code, s311(2); or

h the Court should exercise its discretion pursuant to the Code, s326(3), to exclude these counts as being prejudicial.

3 Pursuant to the Code, s311(2), an accused may be charged with "more than one crime ... in the same indictment, if those charges arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or similar character". All the charges in the indictment relate to incidents alleged to have occurred over a period of approximately 18 months during which time the accused managed a removal storage business in Hobart. Initially the business was called "Watkins Removal & Storage". Early in 1996 control of the business passed to Claude Watkins & Son Pty Ltd and thereafter the business was conducted under the business name of "Watkins Removals & Storage - Hobart". I will refer to the business as "Watkins".

4 Counts 1 - 45 are charges of stealing contrary to the Code, s229(1)(b) and s234. It is alleged that the accused dishonestly converted to the use of himself or others money received for the benefit of Watkins. In summary, it is alleged that the accused misused his position as the manager of Watkins to take cash received from its customers for services, and that in order to cover his tracks the accused manipulated the raising of invoices for services provided by Watkins so that the amounts for which invoices were raised balanced the funds banked.

5 Count 46 is a charge of inserting false information as debtor in a computer in contravention of the Code, s257E. The basis for this count is an allegation that the accused received electrical items for his own use from a Watkins' customer, in payment for services provided by Watkins. It is asserted that, in order to credit the customer's account with an amount sufficient to set-off the value of the electrical items the accused had received, he wrongly arranged for the account to be credited with an amount of $2,800 as compensation for damage purportedly caused to property of the customer in transit.

6 Counts 47 and 48 are charges of stealing. They allege that the accused stole from Watkins by dishonestly converting to his own benefit the proceeds of two cheques drawn on Watkins' bank account.

7 Counts 49 - 53 and count 55 are also charges of stealing. Each of these counts relates to property under the control of Watkins which it is alleged the accused took for the use of himself or others.

8 Count 54 is an allegation that the accused stole a wheelbarrow, which he dishonestly converted to his own use, after arranging for its purchase by Watkins.

9 Pursuant to the Code, s311(2), all of the charges may be included in one indictment if they form part of a series of events of the same or similar character. In Ludlow v Metropolitan Police Commissioner (1971) AC 29 at 39, Lord Pearson said that "both the law and the facts ... should be taken into account in deciding whether offences are similar or dissimilar in character". In Sutton v R [1984] HCA 5; (1984) 152 CLR 528 at 540 - 541, Brennan J expressed agreement with this observation by Lord Pearson and added:

"If the offences are similar in character, they may constitute a series. 'Series' does not import a clear criterion for determining what charges may be joined in the same information. Perhaps little more can be said about its meaning than Dixon J. said in Packett v The King [1937] HCA 53; (1937) 58 CLR 190, at p 207, namely, that 'it connotes some connection between the crimes'."

See also De Jesus v R [1986] HCA 65; (1986) 68 ALR 1, Dawson J, at 15.

10 To be of similar character there must be a nexus between the offences; Ludlow (supra) and De Jesus (supra). In this instance, the similarity between the offences with which the accused is charged is that they all involve allegations that the accused used his position as the manager of Watkins to appropriate to himself or others the property of Watkins or property subject to Watkins' control. Whilst there are dissimilarities in the means by which the alleged offences were carried out and the subject matter of the offences, these are outweighed by their common elements, which include the accused dishonestly taking advantage of his employment with Watkins to derive a benefit for himself or others from the property of Watkins or property under its control.

11 I am satisfied that the Code, s311(2), permits the inclusion of all the counts in one indictment as they form part of a series of crimes of the same or a similar character. However, this does not dispose of the matter, as Counsel for the accused submits that the Court should exercise its discretion to sever the indictment pursuant to the Code, s326(3), because the inclusion in it of the counts which he contends should be excised will prejudice the accused. Counsel, quite properly, in my view, did not contend that any prejudice arose from the number or complexity of the charges as was found to be the case in R v Smart (1983) VR 253 and Appleby (1996) 88 A Crim R 456. The prejudice relied upon is that which may arise from the inevitability that, in the course of the trial, evidence will be given on some counts which will be irrelevant on others. In particular, it was submitted that this could result in the jury impermissibly adopting propensity reasoning to convict the accused.

12 It is well recognised that if there is to be evidence, admissible on the trial of some counts, but inadmissible on the trial of others, the indictment should be severed if there is a risk of impermissible prejudice to the accused in the conduct of the trial. In R v Sutton (supra), Brennan J said at 541 - 542:

"When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted."

13 It is equally well recognised that it is difficult to give directions to guard against the impermissible use of such evidence in cases involving a series of sexual offences: Sutton v R (supra), De Jesus v R (supra), Hoch v R [1988] HCA 50; (1988) 165 CLR 292 and R v Randell [1999] TASSC 78.

14 This case, however, does not involve sexual offences and I am satisfied that insofar as evidence will be led in the course of the trial in relation to a count which is not relevant to other counts, an appropriate direction to the jury in relation to the use of the evidence will protect the accused from the risk of impermissible prejudice. Directions of this nature are commonplace. There is nothing about the circumstances of this case which causes me concern that an appropriate direction will not achieve the requisite object. I will not order the severance of the indictment. In reaching this conclusion I should say that I am conscious that much of the evidence to be called by the Crown is relevant on all counts as being directed towards establishing that each offence formed part of a dishonest system or course of conduct which the accused had embarked upon. By this means the Crown seeks to establish that in acting as the accused allegedly did in relation to each count he was acting dishonestly: See R v Finlayson [1912] HCA 48; (1912) 14 CLR 675, Griffiths CJ at 678 - 679 and Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, Starke J at 371.

15 The application to sever the indictment is dismissed.