R v Carr [2003] TASSC 123

Packett v R [1937] HCA 53; (1937) 58 CLR 190; Ludlow v Metropolitan Police Commissioner [1971] AC 29; De Jesus v R [1986] HCA 65; (1986) 68 ALR 1, applied.

Judgment ID Number: [2003] TASSC 123

1 By an indictment filed 10 November 2003, the accused is charged with eight counts as follows:

1 On the night of 22 May 2003 he committed burglary of a domestic shed at 17 Highgate Street, Youngtown with the intention of stealing.

2 Associated with count 1, he stole from the shed a lawnmower.

3 On the same night he committed aggravated burglary of a garage in the lower floor of a house at 27 Waroona Street, Youngtown with the intention of stealing.

4 Associated with count 3, he stole from that garage two piano accordions and a chainsaw.

5 On the same night he stole (from the driveway of 31 Keithleigh Street, Youngtown) a Toyota Camry and of its contents, a gold wedding band and a briefcase.

6 On 26 May 2003, he stole (shoplifted) a video camera from a shop in the Launceston CBD.

7 On the night of 28 May 2003, he committed burglary of a storage shed of a vineyard at Kayena with the intention of stealing.

8 Associated with count 7, he stole from that storage shed a 4-wheel motor bike, cleaner, chainsaw, pruning shears, nail gun, brush cutter, cordless drill, 12 gauge shotgun with cartridges and a saw.

2 His trial was scheduled to commence today. On 18 November his counsel submitted that the indictment breached the Criminal Code, s311(2), and that I should order three separate trials, one of the first five counts, one of the sixth count and one of the seventh and eighth counts. It was argued that if I did not find that the indictment breached s311(2), I should nevertheless order separate trials pursuant to s326(3). The parties were advised on 19 November how I would determine the matter. These are my reasons.

3 Section 311(2) provides that charges of more than one crime may be joined 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 a similar character". In any other case, an indictment shall charge one crime only.

4 Counsel for the Crown submitted that the eight charges amount to a series of crimes of the same or a similar character and therefore, that s311(2) permitted them all to be rolled up in the one indictment. She submitted that they are of a similar character because they are all crimes of dishonesty, committed in the general Launceston area, involving entering a building or vehicle with the intention of stealing and then stealing or, in the case of the sixth count, stealing from inside a building. As I understood it, she submitted that they amount to a series of such crimes, because they were committed within a six day period in the general area of Launceston.

5 I take judicial notice that the first five counts concern crimes allegedly committed in a southern suburb of Launceston, about five or six kilometres from the central business district, and that the seventh and eighth counts were allegedly committed in a country area about 40 kilometres north of Launceston. The sixth count was committed in the central business district of Launceston.

6 In Packett v R [1937] HCA 53; (1937) 58 CLR 190 at 207, Dixon J said that the concept of crimes constituting a series "connotes some connection between the crimes". For crimes to be of a similar character and for them to constitute a series for this purpose, there must be a sufficient nexus between the charges. Ludlow v Metropolitan Police Commissioner [1971] AC 29 at 39; De Jesus v R [1986] HCA 65; (1986) 68 ALR 1 at 15; R v McDonald (1979) 21 SASR 198 at 200; R v Killick (1980) 24 SASR 137 at 141; R v Burrows [2001] TASSC 90 at par10. "Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series." Ludlow v Metropolitan Police Commissioner at 39. "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." De Jesus v R at 15.

7 I am unpersuaded that the sixth count charging shoplifting may correctly be regarded with counts 1 to 5 and/or counts 7 and 8, as forming a series of crimes of the same or a similar character. Shoplifting bears little similarity to burglary, and stealing committed in the course of burglary, other than that it involves stealing and therefore dishonesty. Further, I understand that the shoplifting was committed during the day. The other crimes are alleged to have been committed at night. I hold that the sixth count should not have been included in the same indictment as the other counts.

8 I am unpersuaded that counts 7 and 8 on the one hand and counts 1 to 5 on the other hand are, or form part of, a series of crimes of the same or a similar character. Counts 1 to 5 allege burglaries and thefts in a residential area of a suburb of Launceston. A relatively small amount of property was allegedly stolen from the domestic shed or garage. On the other hand, counts 7 and 8 were allegedly committed in the country some distance from Launceston, the amount and value of property stolen was considerable, and the burgled premises were used for a business rather than for domestic purposes. I am unable to identify a sufficient nexus between the two groups of crimes to bring them within the provisions of s311(2).

9 Accordingly I hold that there should be three separate trials, one for counts 1 to 5, one for count 6 and one for counts 7 and 8.

10 It is therefore unnecessary for me to consider the exercise of a discretion under s326(3). However, I note my understanding that with respect to the first and second set of crimes (counts 1 to 5 and count 6), proof of the guilt of the accused may well depend on whether the jury accept two separate identifications of the accused made by members of the public from photoboards. There are well-known perils involved in accepting evidence of identification in such circumstances and it seems to me that a risk would arise in this case if the crimes in those two sets were to be tried at the same time, for there would be a danger of the jury accepting the photoboard identification with regard to one of the occasions because of photoboard identification made with regard to another occasion. The Crown does not seek to rely on anything in the nature of similar fact evidence, however.