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R v Pollard[2015] QDC 250

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Pollard [2015] QDC 250

PARTIES:

R

v

MICHAEL POLLARD

FILE NO/S:

2611/2015

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Dalby

DELIVERED ON:

Ex tempore reasons delivered 1 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2015

JUDGE:

Smith DCJA

ORDER:

Application for separate trial granted

CATCHWORDS:

CRIMINAL LAW- INDICTMENT- JOINDER- Whether separate trial should be ordered

Criminal Code 1899 (Q) ss 590AA, 597B

R v Demirok [1976] VR 244

R v Middis unreported NSWCCA, 27th of March 1991

R v Swan [2013] QCA 217

R v Symss [2003] NSWCCA 77

R v Webb & Hay (1994) 181 CLR 41

COUNSEL:

Mr A. Hoare for the defendant

Mr D. Jones for the crown

SOLICITORS:

Boe Williams Anderson for the defendant

Office of the Director of Public Prosecutions for the crown

  1. [1]
    This is an application by the defence under section 597B of the Code for the defendant Michael Pollard to be tried separately from his co-accused, Harley Philp, Sonja Hopkinson and Benjamin Hearn.
  1. [2]
    The defendant and his co-offenders have been charged with the following offences:
  1. (a)
    Count 1- that on 25 October 2014 at Tara in the State of Queensland, Harley Raymond Philp unlawfully assaulted Peter Jones Young.
  1. (b)
    Count 2- that on the 29th day of October 2014 at Tara in the State of Queensland, all of them unlawfully assaulted Peter Jones Young.
  1. (c)
    Count 3- that on the 29th October 2014 at Tara all of them assaulted Adam Lucas Young and did him bodily harm whilst armed and in company.
  1. (d)
    Count 4- that on 29th October 2014 at Tara all of them assaulted Peter Owen Young and did him bodily harm whilst armed and in company.
  1. [3]
    I have had regard to the submissions by the parties and to the depositions in this case.
  1. [4]
    The evidence reveals that Adam Young, who lived at 213 Orchard Road, Tara, knew Harley Philp (who was his cousin), Sonja Hopkinson and Ben Hearn. There seemed to have been some falling out between Adam and a woman called Fiona on the on hand and these accused on the other.
  1. [5]
    On the 25th of October 2014 at a country club, Adam Young was with Peter Young. Harley Philp was also there, affected by alcohol or drugs, and an altercation occurred. This is the subject of count 1. I note the defendant is not alleged to have been there on that occasion and is not charged with an offence relating to this incident.
  1. [6]
    The more substantial incident occurred at 213 Orchard Road, Tara, on the 29th of October 2014. In essence, the Crown case is that Sonja Hopkinson, Ben Hearn, Harley Philp and the defendant went to the Tara premises armed and attacked Adam Young, Peter Young Junior and Peter Young Senior at that location. After that incident took place, police attended, and, of interest, Sonja Hopkinson, on the evidence, telephoned police to allege that assaults had occurred at their location and police attended there a relatively short time later and located the defendant and the other accused. The applicant was grossly affected by alcohol.
  1. [7]
    Going back to the incident at Orchard Road, Tara, it seems clear to me on the material that Sonja Hopkinson, Ben Hearn and Harley Philp were clearly identified. Adam Young describes a fourth person as wearing a cap with flames on it, but there is no direct identification of the defendant by any of the witnesses. As I said, the defendant was at the second location police attended. Of interest, though, the defendant did have some injuries: a puncture wound and a laceration to the back of the head. He was taken to the Chinchilla Hospital and released, it seems, in the early hours of the morning. Crucial to my determination, though, is that on the 30th of October 2014, Sonja Hopkinson and Harley Philp were separately interviewed.
  1. [8]
    The Crown alleges that a false version was dreamed up between them which lead to Hopkinson calling the police. The crown concedes it is to be inferred the defendant was present when this happened.
  1. [9]
    In her record of interview Sonja Hopkinson told the police that the defendant and she were at the fire (page 5); Philp and the defendant were together (page 6); and then she mentions Hearn being there again when they were attacked.
  1. [10]
    In his record of interview Philp talks about Pollard “cleaning’ people up and winning during a fight and “ranting and raving” (pages 6 and 13).
  1. [11]
    As I say, the Crown say that was a false version dreamed up to explain, no doubt, the injuries and to exculpate them from the offences.
  1. [12]
    On the other hand, the defendant was interviewed on the 31st of October 2014. He claimed to have memory loss and he didn’t really socialise with Philp. So he didn’t seem to be one of the people putting forward the same false version, on the Crown case, as compared to the others.
  1. [13]
    A hat with flames on it was worn by the defendant at the time of the interview at 7.35 pm, on 31 October 2014 and at the time he was charged in November 2014.
  1. [14]
    The defence submissions are that the case against Pollard is not a strong one. It is accepted that there is a circumstantial case against him. It seems, from what I’ve heard, the three circumstances are: that Pollard was found with the others at that fire location which I’ve mentioned; secondly, he had the injuries which I’ve mentioned; and, thirdly, he wore a hat which is similar to that described by one of the complainants. The defence then submits that the case impermissibly becomes stronger, because once the interviews of Sonja Hopkinson and Harley Philp are played, the jury will, or may, impermissibly reason that Pollard is a party to this false version and, secondly, the jury may reject parts of the false version but accept other parts, namely, Pollard’s involvement in a fight with the complainants, thereby impermissibly strengthening the identification evidence against him.
  1. [15]
    Counter to this, the prosecutor submits that there is no risk of impermissible prejudice, because the lies told by Sonja Hopkinson and Harley Philp will be the subject of an Edwards direction only relating to them. There will be separate trial directions given and the Crown’s submission is, in those circumstances, there is no impermissible strengthening of the Crown case.
  1. [16]
    There is good reason in point of principle and policy why persons charged with committing offences jointly ought be tried together. I refer, in that regard, to R v Webb & Hay (1994) 181 CLR 41. There are administrative factors pointing in that direction but, more importantly, it is desirable to avoid inconsistent verdicts, particularly when each accused tries to cast blame on the others (see Demirok [1976] VR 244). I do note, though, in R v Swan [2013] QCA 217, Jackson J noted that juries were obliged to follow a trial judge’s directions but, at paragraph 58, with reference to Pham:

“... it would have been virtually impossible, as a matter of common sense, for the jury to disregard [the other defendant]’s interview in dealing with the case against the appellant, despite the emphatic directions that [the other defendant]’s alleged confession formed no part of the case against the appellant and should be disregarded so far as he was concerned.”

  1. [17]
    Justice Hunt in Middis (unreported NSWCCA, 27th of March 1991)[1] stated:

“Briefly, the relevant principles are that: (1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.”

  1. [18]
    In my opinion, a separate trial should be ordered here. I firstly note the applicant is not charged with count 1, although that’s not the determining factor here. I consider there are real concerns as to impermissible reasoning being engaged in by the jury that Pollard was part of this plan to come up with a false version and, secondly and more importantly, a jury may reject parts of the false version, but accept other parts, namely, there was a fight with the complainants and, in that way, impermissible evidence of identification will come in which greatly strengthens the case against him which, arguably, is weaker.
  1. [19]
    In those circumstances, gentlemen, I propose to order a separate trial of the applicant Pollard from the other three accused.

Footnotes

[1]  Applied in R v Symss [2003] NSWCCA 77 at [69].

Close

Editorial Notes

  • Published Case Name:

    R v Pollard

  • Shortened Case Name:

    R v Pollard

  • MNC:

    [2015] QDC 250

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    01 Oct 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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