DISTRICT COURT OF QUEENSLAND

1. [1]
   Mr Collins for the accused Alliston seeks a separate trial.  Alliston and her co-accused Graham were convicted on trial in 2011 in the District Court at Townsville but their convictions were quashed by the Court of Appeal (R v Graham & Alliston [2011] QCA 187).  Hence the impending hearing is a retrial.  The co-accused Graham had no interest in this application and his counsel Mr Walters and his solicitor withdrew from this hearing.

Background

2. [2]
   The two accused had been charged with one count of unlawful wounding and one count of armed robbery with circumstances of aggravation, committed on or about 29 January 2009 at Townsville. Alliston was convicted in the first trial of robbery in company only, but acquitted of the unlawful wounding on a directed verdict.  Hence she faces a retrial on a robbery in company charge only.  Graham faces a retrial in the same proceeding on both counts: that is, armed robbery in company with personal violence and unlawful wounding.

3. [3]
   The prosecution allegation is that Alliston “took the male complainant to the offence location with the intention to rob him, that Mr Graham demanded the money, that either Ms Alliston or Mr Graham snatched the money from (the complainant) Mr Plozza and that they were acting together in the commission of the robbery.”

4. [4]
   Hence the case against Alliston is a section 7 case.  The prosecution does not rely on section 8.

Factual Circumstances

5. [5]
   Alliston filled her motor vehicle with fuel at a service station but could not pay the $60 cost of the fuel with her ATM card. The complainant, who had never met her previously, claimed that she approached him and offered him a sexual favour (a “head job”) if he would pay for the fuel. Alliston claimed that the complainant simply offered to pay for the fuel without any condition attached.

6. [6]
   The two of them drove in Alliston’s motor vehicle to a nearby park. Alliston spoke to Graham over a mobile phone en-route. They were at the park for a short time. She claims that the complainant assaulted her. She then drove a short distance to a location near Graham’s home. The complainant alleges that Graham approached the car with a knife and threatened him. A struggle ensued and the complainant was cut with the knife. There is evidence that Alliston had said to Graham “don’t stab him” and took a knife from Graham.

7. [7]
   The complainant claims that an unknown sum of money was taken from him. He claims Alliston told Graham to get the complainant’s wallet from a bag and Graham asked him for the wallet. There is other evidence that Alliston took money from the complainant’s hand.

8. [8]
   The prosecution alleges that the robbery was hatched in phone conversations between Alliston and Graham en-route from the service station to the offence location.  The complainant gave evidence of three phone calls being made by Alliston but no evidence of any relevant statement by her in their phone calls.

The Application

9. [9]
   There are three parts to the application:

Applicant’s Submissions

10. [10]
    The application, in Mr Collins’ words, “is all about a very strong defence case which is utterly undermined by inadmissible material in the case against the applicant.”

11. [11]
    Mr Collins endeavoured to demonstrate in his submissions that Alliston would be prejudiced by reason of the more substantial case mounted against Graham.  In particular, he submitted that the admission of the highly probative admission in the text message would have some flow on effect to his client and taint what otherwise would be in his view, a reasonable defence to the charge of robbery in company.  He also saw the additional circumstances of aggravation as making the joinder of the robbery charges to be unsustainable, further influenced by the unlawful wounding charge in respect of which his client had the benefit of a previous acquittal.

Respondent’s Submissions

12. [12]
    Mr Stone submitted the following:

13. [13]
    Mr Stone submitted that the prejudicial evidence was nothing more than what might ordinarily be encountered in a joint trial where evidence admissible against one co-accused may not be admissible against another or others. Such matters can be dealt with by proper directions.

Discussion

14. [14]
    Section 597B of the Criminal Code (Qld) provides as follows:

“S. 597B Separate Trials

When 2 or more persons are charged in the same indictment, whether with the same offence or with different offences, the court may, at any time during the trial, on the application of any of the accused persons, direct that the trial of the accused persons or any of them shall be had separately from the trial of the other or others of them, and for that purpose may, if a jury has been sworn, discharge the jury from giving a verdict as to any of the accused persons.”

15. [15]
    The decision to grant a separate trial is a matter for the exercise of judicial discretion: Brennan v R (1936) 55 CLR 253.  Where persons are charged with an offence involving a joint criminal enterprise generally they should be tried together: R v Lewis & Baira [1996] QCA 405; R v Belford & Bound [2011] QCA 43, at [104]. 

16. [16]
    This trial is not one involving section 8. Lewis & Baira was a section 8 case.  Hence it is not contextually on point.  However, there is in the Court of Appeal judgment reference to the exercise of discretion in applications to order separate trials.  The Court of Appeal referred to a joint judgment of the Court of Appeal of South Australia in R v Harbach (1973) 6 SASR 427 where the court wrote (at page 432):

“It has been emphatically stated over and over again by courts of the highest authority that the question of joint trials or separate trials is a question for the discretion of the trial judge. …  As in the case of other discretions a Court of Appeal will not interfere merely because its members or some of them, think that they might have exercised the discretion differently, but will interfere if the bounds of a judicial discretion have been exceeded.  In fact there is, as far as we can discover, no reported case where a court of criminal appeal has allowed an appeal on the ground that the trial judge wrongly refused to order separate trials, nor did counsel refer to any such case. … That does not mean, of course, that such a case cannot arise.  But three things are clear.  The first is that when the accused are charged with committing the crime jointly prima facie there should be a joint trial. …The second is that a joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against one of the accused, though admissible against the other, will be before the jury… and the third is that it may be ordered notwithstanding that one of the accused or each of the accused is trying to cast the blame for the crime on the other … though both of these are highly relevant considerations to the exercise of the discretion …”.

17. [17]
    See also R v Stuart & Finch [1974] Qd R 297, where the decisions on several applications for separate trials, to refuse those applications upheld on appeal. See also R v Morrow & Flynn [1991] 2 Qd R 309, at 313 per Connolly J.

19. [19]
    However, His Honour at [76] also wrote the following with respect to the exercise of the discretion, by reference to a judgment of Thomas J in R v Hasler; ex-parte Attorney-General [1987] 1 Qd R 239, at 251:

“… Exclusion should occur only when the evidence in question is of relatively slight probative value and the prejudicial effect of its admission would be substantial.”

20. [20]
    In R v Davidson [2000] QCA 39, de Jersey CJ and Davies J wrote:

“[12] Generally there are strong reasons of principle and public policy why joint offences should be tried jointly (Webb v R (1994) 181 CLR 41 at 88, 89, 56) 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.”

Their Honours referred to Harbach and Lewis and Baira (both supra).

21. [21]
    In Ali v The Queen (2005) 79 ALJR 662, Callinan and Heydon JJ, with whom Gleeson CJ agreed, wrote:

“[58] Section 597B of the Criminal Code (Q) confers a discretion on the trial judge, at any time during the trial of two or more persons, as here, charged in the same indictment, that the persons charged be tried separately. The events leading up to the murder and dismemberment of the infant, and the guilt or innocence of the appellant and the co-accused, were closely interconnected. Their relationship, their similar motives, their almost equal opportunity to commit the crimes, and their capacity, either separately or jointly to commit them, all argued very strongly in favour of a joint trial. There were no special or other features of the case requiring that they be tried separately. That one might seek to incriminate the other, of each accused here did, could provide no justification for a direction that the appellant and his co-accused be tried separately. … A joint trial of the appellant and the co-accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them and the crimes with which they were charged.”

22. [22]
    I think it is clear in this case that there is no “cut-throat” defence being employed. At least, that is what I understood from the submissions. However, that is not determinative of the issue of separation of a joint trial.

23. [23]
    In Webb & Hay v The Queen (1993 – 1994) 181 CLR 41, at 88-89, Toohey J wrote:

“… When accused are charged with committing a crime jointly, prima facie there should be a joint trial.  There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others.  There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused.  That risk must be obviated by expressing careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused.”

Conclusion

24. [24]
    I acknowledge that the circumstances in this case are, by reason of the history of the charges largely resulting from the first trial, perhaps different in respect of the nature and number of charges than might otherwise be the case in a typical joint trial. However, I do not agree that the prejudicial effect of the evidence faced by Graham which would be lead on a joint trial is such as to necessarily impact upon Alliston, provided clear and adequate directions are given to the jury.  My experience has been that juries are well capable of discerning between cases involving co-accused and of making the necessary separation of the evidence which might be admissible against one which is inadmissible against the other: R v Glennon (1992) 173 CLR 592, at 603; Hinch v Attorney-General (Vic.) (1987) 164 CLR 15, at 74.  I do not see that there is anything in the arguments propounded on behalf of the applicant that would remove the desirability of having a joint trial.

25. [25]
    It seems to me that the two cases can separately be put to a jury with proper and adequate directions and considered separately on the evidence admissible against each accused by a jury on a joint trial.

26. [26]
    It follows that the application should be refused. There is no reason to assume that the jury will do other than follow the trial judges’ directions: Gilbert v The Queen (2000) 201 CLR 414, at [13].

Orders

27. [27]
    1.  Application refused.