The Queen v Ginger[1997] QCA 90

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

C.A. No. 436 of 1996

THE QUEEN

v.

KEVIN STEVEN GINGER

(Applicant) Appellant

C.A. No. 453 of 1996

THE QUEEN

v.

CRAIG RAYMOND ARMSTRONG

 Appellant

Davies JA

Moynihan J

Helman J

Judgment delivered 29 April 1997

Separate reasons for judgment of each member of the Court, Helman J. dissenting in part.

1. ARMSTRONG'S APPEAL AGAINST CONVICTION DISMISSED.

2. GINGER'S APPEAL AGAINST CONVICTION DISMISSED.

3. GINGER'S APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND APPEAL ALLOWED.  SENTENCES IMPOSED ON COUNTS 1, 2, 3 AND 11 SET ASIDE AND IN LIEU SUBSTITUTE SENTENCES OF 11 YEARS, 9 YEARS, 13 YEARS AND 11 YEARS RESPECTIVELY.  OTHER SENTENCES IMPOSED BY THE LEARNED SENTENCING JUDGE AND ALSO HIS STATEMENT AND DECLARATION UNDER S. 161 OF THE PENALTIES AND SENTENCES ACT 1992 TO BE LEFT STANDING.

CATCHWORDS: CRIMINAL - appeals against conviction and application for leave to appeal against sentence - voluntariness of confessions - police tape-recording of conversations - joint and separate trials - reference during trial to prior criminal convictions.

Criminal Code s. 606

Cleland v. R. (1982) 151 C.L.R. 1

De Jesus v. R. (1986) 61 A.L.J.R. 1

Duke v. R. (1989) 180 C.L.R. 508

Hoch v. R. (1988) 165 C.L.R. 292

R. v. Collie (1991) 56 S.A.S.R. 302

R. v. Crawford [1989] 2 Qd.R. 443

R. v.  Lake (1976) 64 Cr.App.R. 172

R. v. Lee (1950) 82 C.L.R. 133

R. v. Harbach (1973) 6 S.A.S.R. 427

R. v. Lewis and Baira C.A. Nos.252, 253 and 290 of 1996, 30 August 1996

R. v. Mostyn and Mostyn C.A. Nos.482 and 491 of 1995, 12 October 1995

Van der Meer v. R. (1988) 62 A.L.J.R. 656

Webb v. R. (1994) 181 C.L.R. 41

Counsel: Mr. A. Glynn S.C., with him Mr. T. Harland for the (applicant) appellant Ginger

Mr. M. Griffin for the appellant Armstrong

Mr. J. Henry, with him Mr. P. McCarthy for the respondent

Solicitors: Legal Aid Office for the (applicant) appellant Ginger

Palella, Humphries & Venardos for the appellant Armstrong

Queensland Director of Public Prosecutions for the respondent

Hearing Date:  6 December 1996

REASONS FOR JUDGMENT - DAVIES JA

Judgment delivered 29 April 1997

The charges contained in the indictment on which the appellants were jointly charged and those on which each were convicted are set out in detail in the reasons for judgment of Helman J. which, in that respect, I adopt.  I agree with his Honour that the sole ground of appeal argued by Armstrong, that evidence of admissions by him ought to have been excluded by the learned trial Judge either on the ground that they were involuntary or in the exercise of his discretion, must fail.

The learned trial Judge was entitled to accept the evidence of the police officers in preference to that of Armstrong.  Once he did that, there was no basis for a conclusion that Armstrong’s admissions were involuntary or that any impropriety on the part of the police either caused them to be unreliable^[1] or caused them to be made at all.^[2]   Moreover, the learned trial Judge was entitled to infer from the way in which Armstrong conducted himself in the course of those conversations which were tape recorded that he was self-assured, capable of handling himself and not at all overborne, thus supporting the conclusion based on acceptance of the police evidence that his admissions were not involuntary or the result of any impropriety, but rather motivated by self-interest.

Unfortunately for no excusable reason not all conversations with Armstrong at the police station were recorded.  It is very much to be regretted that, despite the undoubted knowledge of police that their failure to tape record conversations in cases in which, like this one, the means are readily available to do so, is likely to cause allegations of police illegality or impropriety to be made, as they were here, they still commonly fail to record them.  In all such cases that failure is likely to result, as it did in this case, in the unnecessary incurring of substantial cost and time both at trial and on appeal in hearing and resolving those allegations.  In this case nine days of the trial had elapsed before those allegations were resolved.  They would not even have been made if all the conversations at the police station had been recorded.  In some cases this failure has even resulted in the exclusion of confessional evidence because the failure to record has given rise to a real risk of unreliability of that evidence.

From a court’s point of view, it is difficult to see what more can be done than to continue to make comments like this.  Yet the practice of not recording all such conversations where the means are readily available to do so, either at a police station or in a police vehicle, continues.  These remarks and those made in the joint judgment of Pincus and Davies JJ.A. in R. v. Mostyn and Mostyn (C.A. Nos. 482 and 491 of 1995, 12 October 1995), and the remarks of the trial Judge in this case at pp. 468-469, should be referred to the Attorney and to the Minister for Police.

I agree that Armstrong’s appeal should be dismissed.

Ginger’s appeal against conviction was on three grounds.  The first of these was against the refusal of the learned trial Judge to order separate trials because of evidence, prejudicial to Ginger, which was admitted in Armstrong’s trial, of at least two offences, not contained in the indictment, in which Armstrong said Ginger was involved.  As Helman J. has pointed out although, at the trial, Ginger’s counsel appears to have joined in an application of Armstrong’s counsel for a separate trial, he did not specifically refer to this evidence which is set out at length in Helman J.’s judgment and which I shall not repeat here and he advanced no separate argument. Moreover he appears earlier to have sought to have a third person, Ferguson, joined in the indictment.

The 15 counts on the indictment on which Ginger and Armstrong were jointly charged involved four incidents described by Helman J. in which both were involved and all except one of the counts involved joint offences.  The case was therefore prima facie one in which there should be a joint trial.  There are strong reasons of principle and public policy why joint offences should be tried jointly.^[3]  In addition to and perhaps more important than finality or the saving in time and cost is the desirability that the same verdict and the same treatment should be returned against all those concerned in the same offence, particularly where one accused seeks to shift the blame to the other.^[4]  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.^[5]  Moreover, the exercise by the trial Judge of the discretion conferred by s. 606 of the Criminal Code against an application for separate trials for joint offenders is rarely interfered with.^[6]

Different considerations apply where several charges are joined against the same person because they are founded on the same facts or are part of a series of offences of the same or similar character.^[7]  Especially in the case of sexual offences, which are likely to arouse hostile feelings against an accused, the joinder of several charges against one accused is more likely, than in the case of joint offenders, to result in prejudice which outweighs any advantage which the joinder may have.^[8]  Moreover, where such offences are said to be of the same or similar character there is often the added risk of concoction.^[9]  In such cases, these are powerful considerations supporting separate trials when the evidence on one count is not admissible on the other.^[10]

It was accepted that the evidence, on the basis of which it is now said there ought to have been separate trials, was inadmissible against and prejudicial to Ginger.  But that will often be the case where one accused is trying to cast blame on another in an admission against interest to a police officer.  A statement which, like this one, implicates Ginger in the commission of offences other than those charged is likely to be less prejudicial to him than one which would have implicated him in the offences the subject of the indictment.

No criticism is made of the directions of the trial Judge in Ginger’s trial with respect to this evidence and the appellant’s argument must be considered on the basis that no directions would have been sufficient to prevent a miscarriage of justice.  I cannot be satisfied that the exercise of the learned trial Judge’s discretion resulted in a miscarriage of justice and I would therefore reject this ground of appeal.

Ginger’s second ground complains that three balaclavas and two masks found at his house were admitted in evidence although not identified as being involved in the offences.  It is true that they could not be positively identified as being balaclavas and masks used in the offences.  On the other hand, as was conceded on the appeal, there was evidence from witnesses of items of this kind being used in the various robberies.  There is no substance in this ground of appeal and it, too, should be rejected.

The third ground complains of the fact that during the course of evidence references were made to matters which would suggest that Ginger had prior criminal convictions.  Given the circumstances of these offences and Ginger’s extensive criminal history in matters of similar kind, references of the type complained of were unavoidable.  Moreover, it appears that the defence sought to derive some forensic advantage from at least some of this evidence.  The learned trial Judge gave directions about this evidence and no complaint is made about those.  In my view there is no substance in this ground either and consequently Ginger’s appeal against conviction should fail.

Ginger also sought leave to appeal against his sentence which was effectively one of 18 years cumulative on a sentence which he was already serving and in respect of which he was on parole at the time of commission of these offences.  Although the effect of his previous sentences was not initially clear, it is now accepted that, at the time of commission of these offences he was undergoing sentences totalling 14 years 7 months 21 days from 2 June 1989.  It was submitted that the imposition of a cumulative effective term of 18 years would result in an overall term of 32 years 7 months 21 days from 2 June 1989.  I do not think that this is correct, although the error in this submission is not of great moment.  The learned sentencing Judge declared that a period of 359 days between 12 October 1995 and 4 October 1996 was custody in relation to proceedings for these offences and for no other reason.  This appears to have been correct because although these offences were, as I have said, committed whilst Ginger was on parole in respect of his earlier offences, as he had not been sentenced in respect of these offences, thus terminating his parole, his custody was in relation to these offences and no others.  Consequently, his full time release date will be 31 years 7 months and 14 days after 2 June 1989, which will be in January 2021, approximately 24 years from the date on which these sentences were imposed.  That estimated date does not, of course, allow for remissions which, for reasons which I shall shortly mention, may be few.  His eligibility date for parole, in the absence of any date fixed by the Court, will be the half-way point of the total sentence he is now required to serve which, it seems, will be in about September 2005 which will be about 9 years after the present sentences were imposed.  Unless Ginger substantially changes his way of life in prison it seems unlikely that he will be granted parole then.

As may be inferred from the total sentences Ginger was serving at the time he committed these offences, he has a very bad criminal history commencing in 1980.  It involves offences inside prison as well as outside and include both offences involving dishonesty and offences of violence.  His most serious group of offences, prior to the commission of these offences, which resulted in an effective sentence of 10 years, the largest part of the cumulative sentences which he was serving at the time he committed these offences, consisted of grievous bodily harm, dangerous driving and kidnap for ransom or gain arising out of an incident which the learned Judge who sentenced him described as a gangland operation, also describing Ginger as a very violent man.

When he committed this series of offences Ginger was 30 years of age.  He was, as I have already said, on parole in respect of a number of offences which resulted in sentences totalling 14 years 7 months 21 days.  It is not surprising, having regard as well to the seriousness of the present offences and Ginger’s total lack of remorse, that the learned sentencing Judge thought his prospects of rehabilitation were slim.  The likelihood is, I agree, that Ginger is committed to a life of violent crime.  Nevertheless, as his Honour recognised, some allowance must be made for the possibility of rehabilitation by not making the sentence so crushing in its effect as to destroy any incentive.

On the other hand it is important to consider the seriousness of these offences and the effect which they must have had on their victims;  and the need to deter Ginger and other like-minded criminals from conduct of this kind.

A short description of the conduct the subject of these offences is warranted.  On the first occasion two men, one armed with a gun, smashed their way through the locked door of a residence at about 11.00 p.m. in the mistaken belief, apparently, that the tenants were drug dealers.  The house was occupied by a man, his wife and two children.  Having forced their way into the house the offenders then forced their way into the residents’ bedroom.  The man was struck about the head with the butt of the gun and was threatened with the gun.  After a short while the offenders left without taking any property.

The second occasion involved three men entering the Nudgee Golf Club, two armed with shotguns, one of which was sawn off.  Guns were pointed at two staff and two guests who were present and over $3,000 was stolen.  There was an offence committed against a woman staff member, but Ginger was acquitted of this offence.

On the third occasion a group of men broke into a residence where a visitor was staying alone.  They were searching for drugs and money as the house was apparently ordinarily occupied by people who dealt in drugs.  They were armed with a gun, a knife and two baseball bats.  The sole occupant was struck several times with the butt of the gun.  He was tied up and threatened.  The sum of $1,800 owned by him was stolen, along with some cannabis, a television set and some compact discs.

Notwithstanding the applicant’s criminal history, that he committed these offences whilst on parole, the seriousness of these offences and his absence of remorse, I think that the effective term of 18 years, and also the other sentence of 16 years were too high when one has regard to comparable cases, a number of which were cited to us.  In my view an appropriate effective term would have been one of 13 years imprisonment, that is, a term of imprisonment of 13 years on count 3.  The sentences on counts 1 and 11 should, in my view, be accordingly reduced to 11 years and the sentence on count 2 to 9 years.  All other sentences should remain.

The learned sentencing Judge was correct, in my view, in making these sentences cumulative on the sentence of imprisonment which the applicant was then serving.

Like his Honour, I would not make a recommendation for early eligibility for consideration for parole.  The applicant has so far  not shown himself to be an appropriate candidate for parole and I think it better for the appropriate authorities to consider that question when, after the time fixed by s. 166 of the Corrective Services Act 1988 read with the definition of "term of imprisonment" in s. 10 of that Act, the applicant applies for parole.

The orders which I would therefore make are:

1.  dismiss Armstrong’s appeal against conviction;

2.  dismiss Ginger’s appeal against conviction;

3. grant Ginger’s application for leave to appeal against sentence, allow his appeal, set aside the sentences imposed on counts 1, 2, 3 and 11 and substitute in lieu sentences of 11 years, 9 years, 13 years and 11 years respectively, leave standing the other sentences imposed by the learned sentencing Judge and also his statement and declaration under s. 161 of the Penalties and Sentences Act 1992.

REASONS FOR JUDGMENT - MOYNIHAN J

Judgment delivered 29 April 1997

I agree with the reasons of Davies J.A. and the orders which he proposes.

REASONS FOR JUDGMENT - HELMAN J

Judgment delivered 29 April 1997

On 13 August 1996 the appellants Kevin Ginger and Craig Armstrong came before the Brisbane District Court for trial on charges of a number of serious offences allegedly committed by them in the Brisbane area in September and October 1995.  The charges arose from four incidents – three of them in dwelling houses and the fourth at the premises of a golf club.  The appellants were convicted of a number of offences and were sentenced by the learned trial judge on 4 October 1996. 

 In counts 1 and 2 of the indictment Ginger and Armstrong were each charged in connexion with an entry on or about 3 September 1995 of a dwelling house at Annerley.  Count 1 was an allegation of burglary and count 2 an allegation of attempted armed robbery in company.  Each appellant pleaded not guilty to those counts and each was found guilty of both offences.  His Honour sentenced Ginger to imprisonment for sixteen years on count 1 and to imprisonment for twelve years on count 2.  Armstrong was sentenced to imprisonment for eight years on count 1 and for four years on count 2. 

 Counts 3 to 7 inclusive concerned offences committed on or about 1 October 1995 at the premises of the Nudgee Golf Club.  Count 3 was an allegation of armed robbery in company, count 4 an allegation of indecent assault on a woman, and counts 5, 6, and 7 were allegations of deprivation of liberty.  Ginger was charged on all five counts.  Armstrong was not charged on count 4 but was charged on counts 3, 5, 6, and 7.  Each appellant pleaded not guilty to the charges against him.  The jury found Ginger not guilty on count 4 and found both Ginger and Armstrong guilty on counts 3, 5, 6, and 7.  His Honour sentenced Ginger to imprisonment for eighteen years on count 3 and to imprisonment for two years on each of counts 5, 6, and 7.  Armstrong was sentenced to imprisonment for eight years on count 3, and to imprisonment for eighteen months on each of counts 5, 6, and 7.

 In counts 8, 9, and 10 Ginger and Armstrong were each charged in connexion with the entry on or about 5 October 1995 of a dwelling house at Wellers Hill.  Count 8 was an allegation of burglary, count 9 an allegation of armed robbery in company, and count 10 an allegation of deprivation of liberty.  Each appellant pleaded not guilty to those counts.  Ginger was found not guilty on all three counts and Armstrong guilty on all three.  His Honour sentenced Armstrong to imprisonment for eight years on each of counts 8 and 9 and to imprisonment for eighteen months on count 10. 

 Counts 11 to 15 inclusive concerned the entry on or about 6 October 1995 of a dwelling house at Holland Park.  Count 11 was an allegation of burglary, count 12 an allegation of robbery in company with personal violence, count 13 an allegation of malicious damage, count 14 an allegation of stealing, and count 15 an allegation of receiving stolen property which was alternative to count 14.  Ginger was charged on all five counts and Armstrong was not charged on count 13 but was charged on counts 11, 12, 14, and 15.  Ginger was found guilty on counts 11 and 14 and not guilty on counts 12 and 13.  Armstrong was found guilty on counts 11 and 14 and not guilty on count 12.  His Honour sentenced Ginger to imprisonment for sixteen years on count 11 and to imprisonment for twelve months on count 14.  Armstrong was sentenced to imprisonment for eight years on count 11 and to imprisonment for nine months on count 14.

 Ginger has appealed against his conviction on three grounds and has applied for leave to appeal against the sentences imposed upon him.  Armstrong appealed against his conviction on two grounds, one of which was abandoned at the hearing of the appeal. 

 Ginger's first ground of appeal is as follows:

"The learned Trial Judge erred in failing to order separate Trials for Kevin Steven Ginger and Craig Raymond Armstrong.  As a result, the appellant failed to receive a fair Trial.  Evidence was led in the case against Armstrong of three (3) further offences which were not contained on the indictment and in which Armstrong mentioned that Ginger was involved.  This evidence was not objected to by Armstrong's Counsel for obvious reasons."

 At the beginning of the trial Mr Milton Griffin, on behalf of Armstrong, conceded that the joinder of the charges in the indictment was not improper but applied under s. 606 of the Criminal Code for a direction that the trials of Ginger and Armstrong be had separately.  The chief ground relied on was that the reception of evidence admissible only against Ginger would cause such prejudice to Armstrong as to warrant a separate trial.  Mr Frank Martin, on behalf of Ginger, also sought a separate trial.  The submissions made on the application were brief, and it must be noted that no specific reference to the evidence referred to in Ginger's first ground of appeal was made then although it was referred to later in the long trial, as on 12 September 1996 when Mr Martin sought the discharge of the jury.  His Honour refused the application for separate trials on the ground that with appropriate directions to the jury any prejudice of the kind referred to in the submissions made in support of the application could be overcome. 

 The evidence referred to in Ginger's first ground related to three other serious incidents which occurred, according to admissions made by Armstrong on 12 October 1995, before the incidents the subject of the charges in the indictment.  Those admissions were made orally and in writing.  Exhibit 16 was a printed statement signed by Armstrong on 12 October 1995.  It conveniently sets out the contentious evidence in paragraphs 1 to 6:

 "Craig Raymond ARMSTRONG states:

1. I know the defendants Noel FERGUSON, Kevin GINGER and Robert GINGER in relation to these matters. I have known Kevin GINGER about 6 months who was introduced to me by a friend of a friend. I have known Noel FERGUSON three or four months and I was introduced to him by Kevin GINGER. I have known Robert GINGER for about one or two months and I have only met him twice in this time.
2. During the time I have known these persons I have been involved in a number of crimes with Kevin GINGER and Noel FERGUSON and I have driven Robert GINGER to a location on one occasion where I believe a crime was committed, this was in the northgate area.
3. I think the first job that I drove Kevin and Noel to was an address at Indooroopilly, perhaps June or July 1995 at about 9.00 pm. I recall that they said that they were going to an address to see someone that they were not happy with, I remember that I parked around the corner and Noel and Kevin got out of the car and returned in about 10 minutes, the got in the car and Kevin said: `Drive' I then left this street on the drive home. I remember that I saw a shotgun in Kevin's possession at his house before leaving and he had the gun later at this house and I think Noel had a bat or a knife I can not be sure. It was several days later when I was talking to Kevin that he was laughing about the events of that night and although I can not recall exact words I recall that they were talking about a guy that was a dog, by that I mean a Police informer and they just wanted to straighten him out.
4. I think the next time I was involved in a crime with these persons was when I drove them to an address at Northgate, near clean a way, I recall I drove Noel, Robert and a Girl called Sarah, It was about 3 or 4 months ago at about 9.00 pm. I was told to pull up at a spot by Noel, all three persons got out of the car and were gone about 5 minutes, They returned to the car and then I drove them home to 58 Bilyana st. I remember that all three were talking about Sarah's boyfriend who she was made at, Robert had been drinking and was aggressive. I later left them at this house and the next day I was having a talk with Kevin and he said that they had been pulled over and had been searched, and Rob was taken to the goal in town at Roma Street. I remember Kevin was saying it involved bashing someone else.
5. I think the next time I was involved in a crime with these persons was asked by Kevin to drive him and Noel to an address at Redcliffe. I remember that Kevin gave me the directions as to where to go. I think this was about 2 months ago and about 9 pm to 11 pm at night. I remember I drove over the bridge and all the way through Redcliffe, I remember I turned left at one point after following the water. I can not be sure but I believe that Kevin had a gun with him and again I think Noel had a bat or a knife although I can't be sure because he was in the back and I didn't pay the same attention to Noel that I did to Kevin.
6. I was told to park at a spot in the street by Kevin and they got out of the car and I followed, we walked through an area like a grass storm water drain, and we sat back at the end of the street. They walked off up to a house, I remember they went behind a brick wall with trees and I lost sight of them. I remember I heard a dull crack from the house but I could not tell what it came from. They then came back and Kevin still had the gun, and I can't remember what Noel had in his hands. We then went back to the car and I drove home to Kevin's house. I remember that they were talking about a girl offering them a head job whilst they were there. I then dropped them at Kevin's and went home. I think on this occasion they both had black blavaclava's."

The statement went on to give accounts of the four incidents which gave rise to the charges.             

 His Honour's direction to the jury immediately following the reception of exhibit 16 and its being read to them that it was not evidence against Ginger and was evidence only in the case against Armstrong is an example of the course foreshadowed by his Honour when he refused the applications for separate trials.

 The purpose of adducing the evidence of the three alleged incidents preceding those referred to in the indictment was to show that Armstrong was aware of what was intended when he joined the other offenders in their criminal enterprises.  It appears from the evidence that when Armstrong referred to Indooroopilly he may have been mistaken and was there referring to an incident in the nearby suburb of Taringa.  Armstrong's allegations in paragraph 4 do not refer to the appellant Ginger but to his cousin Robert Ginger so the evidence concerning the Northgate incident is in a different category from the evidence concerning the Indooroopilly (or Taringa) incident and the Redcliffe incident.  Evidence of an allegation against the appellant Ginger concerning the Northgate incident was in fact elicited by Mr Martin in cross-examining a Crown witness called Richard Boulus.  Mr Martin's point about that was that there was a discrepancy between an assertion by Boulus that Mr Martin's client had told Boulus that he had been a party to the Northgate incident and the evidence of an investigating police officer, Detective Senior Constable David Wilkinson, that he, Wilkinson, had found no evidence to suggest that the appellant Ginger was a party to the Northgate incident.  Wilkinson accepted that at the committal proceedings he had agreed that on the evidence in his possession Ginger had not been a party to the Northgate incident.  The contention was that that discrepancy cast doubt on Boulus's credibility.

 Because of the course that the evidence in relation to the Northgate incident took it is difficult for Ginger to rely upon it in support of his first ground, but in my view the evidence in relation to the Indooroopilly (or Taringa) and Redcliffe incidents does raise a question of substance on that ground.  In the course of his summing-up, about which no complaint was made, his Honour referred to the evidence relating to the three incidents, the explanation of them given by Armstrong in the witness box, and the purpose of adducing the evidence.  Soon after he began his summing-up his Honour said:

"Armstrong spoke of three other incidents which are not the subject of charges.  He did this in his record of interview.  You will see and hear that.  The Crown and Armstrong himself wanted such references to incidents at Redcliffe, Northgate and Taringa so that use could be made of those references in argument before you.  It is vital to remember that none of that evidence about incidents at Redcliffe, Northgate and Taringa is evidence in the case of  Ginger, and the position remains the same after Armstrong gave evidence because he always denied knowledge of such incidents and maintained that his mentioning them was caused by police bullying and coaching.  None of that has anything to do with the case of Ginger."

Later in the summing-up this appears:

"The prosecution then dwelt on the fact that I have already brought out with you that there were seven instances referred to by Armstrong, according to the police, in the record of interview and before the record of interview started, only four of which are relevant to charges contained in the indictment.  You were asked, quite correctly, not to speculate on why the indictment is framed in the way it is and the relevance of Armstrong's discussion of three other matters would now be clear to you.

But the point was made by the prosecution that they were said to have taken place before the four subject matters occurred, and this bears on the question of knowledge, according to the prosecution argument.  Armstrong was an aider with knowledge, knowledge as to what was to take place, in a position to foresee obvious consequences of this behaviour."

 The question whether persons charged jointly should have separate trials is one for the discretion of the trial judge; it is an area in which the trial judge has a wide discretion and an appeal court is always reluctant to reverse a ruling on that subject:  R. v. Crawford [1989] 2 Qd.R. 443 at p. 455 per Thomas J. 

 The evidence of the incidents at Indooroopilly (or Taringa) and Redcliffe against Armstrong served a legitimate purpose but quite clearly it caused serious prejudice to Ginger.  (In view of the way in which the reference to Ginger's alleged complicity in the Northgate incident emerged I shall not consider its effect, although it may be that Mr Martin may not have conducted Ginger's case as he did on that matter had the subject of the Northgate incident not been introduced in the case against Armstrong.)  It was, in my view, too much to expect that, following the directions of the learned trial judge, the jury would not have been influenced by hearing of the two earlier incidents to which Ginger was allegedly a party.  The effect of the reception of that evidence against Armstrong was to place before the jury extremely prejudicial evidence of similar acts by Ginger which was inadmissible in the case against him. 

 In the circumstances I conclude that his Honour's discretion miscarried on the application for separate trials and in consequence Ginger was deprived of a fair trial.  His appeal should be allowed and the convictions recorded against him set aside.  The admissible evidence against him, however, warrants an order for a new trial.  In view of my conclusion on Ginger's first ground of appeal I shall not consider further his other grounds.

 Armstrong's first ground of appeal was that his Honour had erred in admitting the evidence of oral and written confessions made by Armstrong on 12 October 1995 to investigating police officers, and his second ground of appeal, which was abandoned at the hearing of the appeal, was that his Honour had erred in failing to order a separate trial of Armstrong.

 At the trial the voluntariness of the confessions was challenged and in the alternative it was submitted that the evidence of them should be excluded in the exercise of his Honour's discretion.  His Honour heard evidence on the voir dire and found that the confessions were made voluntarily.  He was not persuaded that the evidence objected to should be excluded in the exercise of his discretion. 

 It was common ground that two or three police officers with guns drawn approached Armstrong's car when it was stationary at traffic lights in Lytton Road, East Brisbane  between 3.30 and 4.00 p.m. on 12 October 1995.  Armstrong was taken by force from his car, made to lie down on a median strip in Lytton Road, handcuffed, and taken to a police car which was parked nearby in Stafford Street.  At about 4.00 p.m. Wilkinson arrived at Stafford Street with Constable Craig Fontana and spoke to Armstrong as he was seated in the police car.  Armstrong was then "removed" from that police car, Wilkinson said, and "placed" in the rear of the car in which Wilkinson had arrived.  Wilkinson said he explained to Armstrong that police officers wished to speak to him in relation to "some serious matters with weapons", and "as a result, for his safety and safety of others" he had been handcuffed.  At East Brisbane Armstrong denied any knowledge of armed robberies but, according to the Crown case, agreed to accompany the police officers to the Mount Gravatt Criminal Investigation Branch office to talk to them further.  The Crown evidence was that following the initial discussion between Wilkinson and Armstrong at East Brisbane there was a number of conversations between Armstrong and the police officers concerning the armed robberies:  in the police car travelling from East Brisbane to the Upper Mount Gravatt Police Station, and a series of interviews at the Mount Gravatt Police Station, where the handcuffs were removed.  The early interviews were not tape-recorded but a later one was.  Following the tape-recorded interview, Armstrong was interviewed by Detective Senior Constable Michael Volk who prepared Exhibit 16. 

 The Crown case was that although at first Armstrong denied any knowledge of the incidents following further questioning and following a warning which complied with the Judges' Rules, he made the admissions. 

  In his evidence on the voir dire Armstrong denied having made the admissions attributed to him during the conversations which were not tape-recorded and claimed that he made the admissions in the interviews that were tape-recorded because he had been subjected to threats and ill-treatment by the investigating police officers. 

 Having observed Armstrong's demeanour during the interview on the videotape and in court his Honour found that Armstrong, who was twenty-three years old at the time of the interview, had been "remarkably self-assured", not in any way overborne by anything said or done by the police officers, had exercised a free choice to speak out, and had been motivated by self-interest in making admissions.

 Mr Griffin on behalf of Armstrong argued that the circumstances found by his Honour of Armstrong's apprehension and being taken to the Upper Mount Gravatt Police Station should have led his Honour to conclude that he could not be satisfied that any admissions made by Armstrong were made in the exercise of a free choice to speak or remain silent.  Alternatively in reliance on the same circumstances, Mr Griffin submitted that his Honour should have excluded the evidence of the admissions in the exercise of his discretion.              

 Clearly the circumstances of Armstrong's apprehension and of his being taken in custody to the Upper Mount Gravatt Police Station were matters for serious consideration on the voir dire, but the decision reached by his Honour was open to him on the evidence.  Having accepted the evidence of the investigating police officers in preference to that of Armstrong, his Honour could properly conclude that any effects of the early actions by the police officers had been exhausted by the time Armstrong revealed his part in the seven incidents.  It was not without significance that Armstrong had at one time been a police recruit and therefore, one could think, less likely to overborne by the investigating police officers than someone of his age who had not had that training. 

 I conclude therefore that there is no substance in Armstrong's ground of appeal and his appeal should be dismissed.