R v Wood & Anor [2000] WASC 64

The Accused Willis : Mr B J Singleton QC & Ms A E Horrigan

1 MALCOLM CJ: This is an application by the accused Wood to have a trial separately from the accused Willis. The indictment in this case alleges that on 4 July 1998 at Swan View the accused Mr Wood and the accused Mr Willis murdered Bruno Furina. When it is alleged that two or more persons joined in the commission of an offence, the law makes it clear that they may be indicted for that offence jointly in one indictment. That has been the law for nearly three centuries: R v Atkinson (1706) 1 Salk 382, R v Trafford [1831] EngR 375; (1871) 1 B&AD 874, Young v R (1789) 3 Term Rep 98, R v Benfield and Saunders [1760] EngR 263; (1760) 2 Burr 980 at 985.

2 Where two or more persons are jointly charged with an offence committed by each of them on the same occasion - as in the present case - it is essential that the prosecution establish that they were acting in concert. It is open to the jury to convict each of them having independently committed the offence the subject of the joint charge: DPP v Merriman [1973] AC 584; R v Fenwick (1953) 54 SR (NSW) 147.

3 In Merriman the House of Lords overruled a number of previous decisions, including R v Scaramanga [1963] 2 QB 807, R v Parker [1969] 2 QB 248 and R v Holley (1969) 53 Cr App R 519.

4 Where one of the accused jointly charged is acquitted, the other may be considered as if he had been charged with a separate offence in a separate count: R v Rowlands [1972] 1 QB 424.

5 Where persons are alleged to have been engaged in a joint enterprise, the general rule is that they should be jointly indicted and jointly tried: R v Grondkowski, R v Malinowski [1946] KB 369.

6 Where the defence of one of two joint accused will involve an attack on the other, that is a relevant, but not a decisive, circumstance. It is a circumstance which frequently arises in a joint trial. It is a matter for the exercise of the discretion of the trial Judge in each particular case. Where an application is made for separate trials in such a case, the question is whether the joint trial has the potential to bring about a miscarriage of justice.

7 It is clear from the decision in Merriman that where two persons are jointly charged with murder, each is alleged to have committed a separate offence on the same occasion and as part of the same transaction, the connection between the two being no more than that.

8 As against each accused, not only his own physical acts but also the physical acts of the other accused may be relied upon by the prosecution in proof of the offence charged. It is sufficient to show against each, either that he himself did a physical act which was an essential ingredient of the offence charged, or that he helped the other accused to do such an act and that in doing that act he had the required criminal intent; namely, intending to do a victim grievous bodily harm.

9 In a joint trial of two or more accused, when evidence is admissible against one but not another, it is necessary for the trial Judge to point this out to the jury when the evidence is given or during the summing or preferably on both occasions: R v Short [1928] St R Qd 246. In R v Tool [1955] 2 WN (NSW) 338 at 340 it was suggested that it is desirable that it be done both when the evidence is given and in the summing up. The evidence against each should be dealt with separately and considered separately.

10 In Attorney-General's Reference No 1 (1977) 79 WAR 45 it was held by Burt CJ at 48 that a trial Judge does not have a discretion to exclude evidence admissible against one accused on the ground that it is inadmissible against and prejudicial to another accused when two or more are being tried together. Directions must be given accordingly. Only if the prejudice is so great that it cannot be overcome by such a direction is it necessary to order separate trials.

11 The Crown case against these two accused is that they went to the area where the deceased man Mr Furina lived with the intention of breaking into cars and stealing property. In the case of Mr Furina's vehicle they broke into the vehicle by opening the boot. Mr Furina heard voices outside and came outside to see what was happening and found the two accused. He shouted at them and chased them down to the end of the cul-de-sac in front of the house at number 16, that is what the Crown says.

12 The Crown also says that the accused Wood was armed with a knife and the accused Willis was armed with a screwdriver. The Crown case is that Mr Wood stabbed Mr Furina in the chest on the side and penetrated his heart. Mr Furina gave chase back down Luffe Court before he died. The Crown also says that the two accused formed a common intention to prosecute an unlawful purpose. The unlawful killing of someone who got in their way was on the Crown case a probable consequence of the carrying out of the unlawful purpose.

13 Reliance is placed upon s 279(2) and s 8 of the Criminal Code. The law in relation to this was recently set out in a decision on the Court of Criminal Appeal in Seiffert v R, unreported, CCA SCt of WA; Library No 990003; 15 January 1999, per Pidgeon J at 17 to 18, 27, 37 and 38, with whom Kennedy and White JJ agreed. It has been submitted that the accused Willis in his interviews with the police on 12 July 1998 and 23 July 1998 initially gave a false account regarding the circumstances of the loss of his hat and subsequently gave an account of the events at Luffe Court on that morning in which he accuses Mr Wood of stabbing Mr Furina.

14 It was said by his counsel that he gave a graphic description in the context of his interview with police officers. In my view the account is by no means graphic and depends very substantially upon matters of inference from the statement which he made which in part is equivocal, rarely direct and specific. These of course will be matters to be considered by the jury and there will be at the time the evidence is given, if in fact it is led by the Crown, a clear direction to the jury that they are bound not to take it into account as any part of the case against Mr Wood and they will be directed to that effect again at a later stage in the trial during the course of the summing up.

15 The question is whether those statements are of such a high degree of prejudicial effect that it would be impossible for the jury to put them out of their minds in making their deliberations.

16 Having considered the way in which this case is going to be approached by the Crown having regard to the nature of the case which was opened at the preliminary hearing, and having had the opportunity to peruse the evidence, I have formed the firm view that this is a case in which it will be possible for the jury to put the statements made by Mr Willis during the course of his video-recorded interview in which he implicates Mr Wood to one side when considering the case against Mr Wood.

17 As Burt CJ said in Attorney-General's Reference, supra, at 48, a direction to the jury that Mr Willis' statements which implicate Mr Wood made during the course of the video record of interview would in general terms be enough.

18 I am not satisfied that this is a case which would have the effect that such evidence would inevitably make this trial unfair, and the question is not whether the defendant may properly be tried on the counts together but whether the joinder permits the conduct of the trial to be fair: R v Demirok (1976) 50 ALJR 550 and R v Annakin (1988) 37 A Crim R 131 at 139.

19 As I said in Cookson (1989) 45 A Crim R 121 at 129, the question whether there should be a separate trial is one of discretion. Sutton v R [1984] HCA 5; (1983) 152 CLR 528, which has been relied upon in the submissions by counsel for the accused Wood, was concerned with the risk of prejudice where similar fact evidence would be given in relation to a series of offences. In that case, Brennan J said at 541 to 542:

"Where the evidence is not admissible towards proof of his guilt of the other offences, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury will be sufficient to guard against such a risk. Sometimes it is not."

20 That must be balanced against what was said in Attorney-General's Reference Number 1 in which the approach was that a direction to the jury regarding the admissibility of A's evidence against B on a joint trial is generally enough. The question is whether directions to the jury will be sufficient to guard against any such prejudice.

21 Willis' admissions were admissible against him but they will not be admissible against Mr Wood. This is not a similar fact case. It is a joint trial on two accused on a joint charge of murder arising out of them both allegedly being involved in a joint criminal exercise, one of them armed with a knife, the other armed with a screwdriver, the question being whether upon being intercepted by a member of the public seeking to protect his property, it was a probable consequence of them being so armed that a member of the public would be caused grievous bodily harm. If that is the case, then the law says they are both guilty of murder. That's the question in this case. In my view, there is no reason which has been advanced which would justify separate trials.

22 It is a pity that this application was made so late in the day. As counsel for the prosecution has indicated, the records of the video interviews have been available for a very considerable period of time. It has taken 6 months for this case to be got ready to be heard in the Supreme Court. Fortunately, although some 14 days have been set aside for it, I have every confidence that it will be concluded within the space of 10 days. I hope that that will be the case.

23 Having regard to the nature of the application which was made this morning and the necessity to canvass the matters that have been canvassed, of course, the media will bear in mind that the proceedings this morning, apart from stating that an application was made, none of the material which has been mentioned by counsel or by me should be the subject of publication prior to the commencement of the trial.