R v Davidson

Director of Public Prosecutions (Queensland) for respondent

[1] de JERSEY CJ and DAVIES JA: This is an appeal against a conviction on 24 September last on one count of unlawfully confining the complainant in a motor vehicle against her will and two of rape. The grounds of appeal stated in the notice of appeal are:

"That the learned trial judge erred at law by refusing defence counsel's application for a separate trial.

That the learned trial judge erred at law by not sufficiently warning the jury that matters arising in the police interview with Sandow were not admissible evidence against the appellant.

That the learned trial judge erred at law by refusing defence counsel's application for a jury view of the locking mechanism."

However we were told by Mr Murray for the appellant that the third of these would not be pursued.

**[2] The appellant was charged, in respect of each of the above and two other offences, jointly with another man Sandow and his trial was, as the first of the above grounds indicates, a joint one with Sandow. At the trial an application was made on behalf of the appellant for a separate trial. The basis of that application was that Sandow took part in a police interview which was recorded, in which he made statements damaging to the appellant. The application was refused. In order to understand that application and that ground of appeal it is necessary to say something about the relevant facts.

[3] The principal witness in the case was the complainant, a 17 year old girl living in Cherbourg. Neither the appellant nor Sandow gave evidence although, as already mentioned, Sandow took part in a recorded interview which was substantially self serving but which contained some admissions against interest and, as also mentioned earlier, some evidence damaging to the appellant.

[4] Late at night on 26 January 1999 the complainant was walking along a street in Cherbourg, substantially affected by alcohol. The appellant, who was, at the same time, driving a vehicle along that street with Sandow as a passenger, stopped the vehicle and asked her if she wished to go for a drive. The complainant's evidence and the Crown case was that she was then confined in the car against her will but both the appellant and Sandow were acquitted of an offence which alleged that. Nevertheless it appears that, after she had entered the car, it was driven to a remote location.

[5] At that location sexual intercourse occurred between Sandow and the complainant. That much was not disputed by the defence and there was DNA evidence to support it. The questions were whether it was without the complainant's consent and whether the appellant was a party to that offence. The complainant's version of this was that, when she got out of the car she started crying and fell to the ground. The appellant then said "Why don't we just gang bang her?" to which Sandow replied "No. I'll go first". Sandow then had intercourse with her by forcing himself onto her.

[6] The case against the appellant in respect of this rape was that it should be inferred that it was a result of a common intention by the appellant and Sandow to rape the complainant. The evidence of the conversation referred to above was sufficient to permit that inference to be drawn. The alternative basis upon which it was asserted that the appellant was a party to that rape was that he knowingly aided it by driving the complainant and Sandow to a remote place and by his presence and what he said there. This also would have permitted such an inference to be drawn.

[7] The learned trial judge made it clear to the jury that the evidence which we have so far related was the only evidence admissible against the appellant in respect of this rape. His Honour also, in giving directions, indicated clearly that there was some difference in the evidence available against each accused. Consequently he went through all of the evidence against the appellant and completed that before discussing the evidence in relation to Sandow. However when dealing with the evidence against Sandow his Honour referred to the recorded police interview with him including his statement that Davidson said "Why don't we just gang bang her?". This was, of course, admissible against Sandow as inconsistent with his assertion that shortly after this, he and the complainant engaged in consensual intercourse. It was plainly not admissible against Davidson and his Honour had endeavoured to make that clear to the jury. But the fact that it was admitted in the case, it was submitted on the appellant's behalf, meant that it was impossible for the jury to ignore it in considering the case against the appellant.

[8] In temporal sequence the next offence of which the appellant was convicted was one of unlawfully confining the complainant in the motor vehicle. The circumstances in which that arose, according to the complainant, were these. After she had had intercourse with Sandow the appellant said "What about me?". She said nothing and he then said "If you don't give me, I'm going to leave you up here in the bush". She said she then jumped in the car because she was frightened but she thought then that they were going to take her back to the Mission. However instead they took her to some playing fields of a local school. Again the learned trial judge made it clear to the jury that the evidence to which we have referred from the complainant was the only evidence against the appellant on this charge. However, when dealing with the evidence against Sandow on this charge, his Honour referred to the statement made by Sandow in the police interview that Davidson said to the complainant "If you don't give me I'm going to leave you up here in the bush in the dark" and that Davidson said "If you won't give me I'll let you walk home from here" and that the complainant responded "I've got no choice then". This was relevant to the evidence against Sandow on this charge and the subsequent charge of rape because Sandow was the man who drove the car from then on. Again the appellant submits that, notwithstanding his Honour's summing up in this respect, it would have been impossible for the jury not to use this evidence to support the complainant's evidence against the appellant.

[9] As to the final count of rape, the appellant did not dispute that, on arrival at the playing fields, he had intercourse with the complainant and there was DNA evidence to support that. The only issue was as to consent. The complainant's evidence was that she was trying to get away, that the appellant pulled her back by her arms, pulled her shorts down and his also, turned her round and inserted his penis in her vagina. She did not consent to any of this. She was then allowed to leave and complained immediately of being raped by each of Sandow and the appellant. Again his Honour made it clear that this was the only evidence against the appellant on this count.

[10] However in the police interview admitted in the case against Sandow, Sandow said that he dropped the appellant and the complainant at the school because the appellant wanted her for a "scrape", that is wanted her for sex. In dealing with the evidence against Sandow his Honour said that this was admissible against Sandow as a party to that rape.

[11] In the end the appellant's contention was not that there was any defect in the learned trial judge's summing up. On the contrary Mr Murray conceded that, once the application for a separate trial had been refused, there was nothing more which his Honour could have done to prevent a miscarriage; but submitted that, once a joint trial was permitted, the strength of the evidence of Sandow's recorded interview was such that the jury would have found it impossible to ignore in considering the case against the appellant. The miscarriage, it was submitted, occurred because separate trials were refused.

[12] Generally there are strong reasons of principle and public policy why joint offences should be tried jointly[1] and the mere fact that one result of joinder will be that evidence admissible against one but inadmissible against the other accused will be before the jury is not a reason for ordering separate trials.[2] Moreover the exercise by the trial judge of the discretion conferred by s 606 of the Criminal Code against separate trials for joint offenders is rarely interfered with.[3] That is not to say of course that the facts may never disclose such potential for unfairness that separate trials should never be ordered. But R v Lewis and Baira[4] is an example of a recent case in which an appeal against refusal of separate trials was dismissed in circumstances in which the evidence of one co-accused accused of rape was highly prejudicial to the other.

[13] In Gilbert v The Queen[5] both majority[6] and minority[7] judges agreed that the system of criminal justice as administered by appellate courts requires the assumption that as a general rule juries understand and follow the directions they are given by trial judges. However the majority rejected the assumption that prejudice may not affect the jury's decision-making. Accepting as we do that there may be some cases in which it is appropriate to order separate trials, even in a case involving joint offences, where the evidence admissible against each accused is impossible or at least extremely difficult to disentangle and the evidence against one is highly prejudicial against the other, and accepting also that there may be cases in which prejudice may cause a jury even to ignore the directions of a trial judge, we do not think that this is such a case.

[14] It was possible in this case to consider the case against each accused separately and the learned trial judge did this admirably by setting out first the case against the appellant, making it clear that the evidence to which he referred was the only evidence against him and then separately stating the case against Sandow, again making it clear that the evidence to which he referred was the evidence against Sandow alone. Nothing could have been clearer but that the jury were invited to determine the case against the appellant only on the discrete evidence against him which had been fully set out before his Honour dealt with the case against Sandow. No doubt there is always the possibility, where evidence admissible against one accused is prejudicial to the other, that the jury may impermissibly use it against that other. But we do not think that an appellate court should lightly conclude that that was likely or, without better reason than that mere possibility, conclude that the learned trial judge's discretion not to order separate trials was erroneously exercised.

[15] In our opinion with the aid of the careful summing up of the learned trial judge the jury was well able to separate the evidence admissible against the appellant from that admissible only against his co-accused. We would not therefore be prepared to conclude that his Honour erred in failing to order separate trials and we would accordingly dismiss this appeal.

[16] WILLIAMS J: I have had the opportunity of reading the joint reasons for judgment prepared by the Chief Justice and Davies JA, wherein the circumstances relevant to this appeal are fully set out. I agree that for those reasons the appeal should be dismissed, but would add some brief observations of my own.

[17] The submissions by counsel for the appellant essentially came down to the proposition that the verdicts of guilty against the appellant were unsafe and unsatisfactory because a reasonable jury could not have disassociated the evidence only admissible against the co-accused from the evidence admissible against the appellant in considering the question of his guilt. That must always be the question to be addressed when, after verdict, a challenge to conviction is mounted on the ground that the learned trial judge rejected a submission for a separate trial in circumstances where the law permitted joint trials.

[18] The ground on which the appellant here challenged the rejection of the application for a separate trial was that on the joint trial the jury received as evidence against the co-accused statements which were highly prejudicial so far as the appellant was concerned. This court in determining whether the verdict is unsafe is in the position of being able to review all the evidence before the jury in the joint trial and to consider that in the light of the summing up.

[19] Here the summing up was very carefully constructed and at the end of his argument counsel for the appellant had to concede that he could not point to anything further which the learned trial judge could have done in order to make clear to the jury the distinction between evidence admissible against the appellant and evidence only admissible against the co-accused. In those circumstances the case for the appellant had to be that, notwithstanding an impeccable summing up, it was impossible for a reasonable jury to consider the evidence against the appellant unaffected by evidence, potentially damaging to the appellant, but admissible only against the co-accused.

[20] There may be cases where the evidence in the co-accused's case is so prejudicial that no reasonable jury could adjudicate upon the case against the other accused uninfluenced by such matters. But in my view this is not such a case.

[21] In considering whether or not a guilty verdict can be upheld in circumstances such as here, it is important, in my view, to concentrate on what were the real issues at the trial. It is clear that the only issue raised by either accused before the jury was consent by the complainant to what happened; consent to the intercourse with the co-accused, consent to being driven in the motor vehicle after that event, and consent to the intercourse with the appellant.

[22] Having regard to all of the matters to which I have referred I have come to the conclusion that the verdicts of guilty against the appellant are not unsafe and unsatisfactory and should stand.

[23] I agree that the appeal should be dismissed.**

[1] Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 88, 89, 56.

[2] R v Harbach (1973) 6 SASR 427 at 432; R v Lewis and Baira CA No 252, No 253 and No 290 of 1996, 18 October 1996.

[3] It was said in Harbach at 432 that the court had discovered no reported cases in which a court had allowed an appeal against a refusal to order separate trials in respect of joint offences.