R v Tuato[2016] QDCPR 15

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defendant, Apelu Ioane, pursuant to s 590AA of the Criminal Code for a stay of the prosecution against him and, further, for an order for a separate trial.

Charges

2. [2]
   The defendants are charged with a number of counts of armed robbery including some with circumstances of aggravation and associated counts which occurred at various locations in the South East Queensland area between 7 June 2013 and 16 October 2013.

3. [3]
   A summary of the charges is:

1. (a)
   Count 1 involves a robbery at Moorooka on 7 June 2013 with respect to which only John Tuato is charged. 

2. (b)
   Count 2 relates to a robbery at Durack on 29 June 2013 in respect of which only Sakaio Tuato is charged. 

3. (c)
   Count 5 relates to a robbery at Moorooka on 22 July 2013 in respect of which John Tuato and Sakaio Tuato only are charged.

4. (d)
   Count 6 relates to a robbery at Moorooka on 22 July 2013 in respect of which only John Tuato and Sakaio Tuato are charged.

5. (e)
   Count 7 relates to a robbery at Moorooka on 22 July 2013 in respect of which only John Tuato and Sakaio Tuato are charged.

6. (f)
   Count 8 relates to a robbery at Springfield Lakes on 16 September 2013 in respect of which only John Tuato is charged.

7. (g)
   Count 9 relates to a robbery at Springfield Lakes on 16 September 2013 in respect of which only John Tuato is charged.

8. (h)
   Count 10 relates to a robbery at Sumner on 23 September 2013 in respect of which only Sakaio Tuato is charged.

1. (i)
   Count 11 relates to an assault occasioning bodily harm at Sumner on 23 September 2013 in respect of which only Sakaio Tuato is charged.

10. (j)
    Count 12 relates to a robbery at Annerley on 3 October 2013 in respect of which Sakaio Tuato only is charged.

1. (k)
   Count 13 relates to an assault occasioning bodily harm at Annerley on 3 October 2013 in respect of which Sakaio Tuato is charged.

10. (l)
    Count 15 relates to unlawful possession of a category D weapon on 17 October 2013 at Inala in respect of which Sakaio Tuato is charged. 

4. [4]
   The charges involving all of the defendants are:

1. (a)
   Count 3 – robbery at Kallangur on 2 July 2013;

2. (b)
   Count 4 – robbery at Kallangur on 2 July 2013; and

3. (c)
   Count 14 - robbery at Rocklea on 16 October 2013.

Defendant’s submissions

5. [5]
   The defendant submits that he is charged as co-offender on the indictment with only three of the 15 counts. The three counts faced by him are said to be with respect to two of the seven armed robberies namely Cash Converters, Kallangur on 2 July 2013 and Rocklea Hotel on 16 October 2013. The co-offenders have been charged with an additional 12 counts relevant to an additional six armed robberies. It is submitted that there is no direct evidence of the defendant’s physical involvement in either of the two robberies in respect of which he is indicted. It is submitted that the Crown case at its highest is that defendant as a third party received proceeds of the Kallangur robbery and drove a vehicle involved in the Rocklea robbery and was in possession of proceeds from that. It is submitted that there is significantly greater evidence against the two co-offenders.

6. [6]
   The defendant submits that pursuant to s 597B of the Criminal Code the court should exercise its discretion to order separate trials.  It is further submitted that the defendant is not properly joined with the co-accused as the defendant cannot be said to have committed the same offence as the co-accused for the purposes of s 568(11) of the Criminal Code.

Respondent’s submissions

7. [7]
   The respondent submits that the matters are properly joined as the offences form part of a series of offences of the same or similar character; the charges reflect offences arising substantially out of the same facts or out of closely related facts so that a substantial part of the facts is relevant to all the charges so that they can be charged together and there is a significant amount of evidence common to all offenders.

8. [8]
   It is submitted that the evidence of all of the robberies is admissible against Ioane on his trial on the two robberies.

9. [9]
   In particular it is submitted that the evidence of the other robberies provides evidence of association.

Summary of the facts

10. [10]
    With respect to Count 1 at 2.04 pm on 7 June 2013 it is alleged that John Tuato entered Cash Converters at Moorooka armed with a knife wearing a Scream mask, a blue Adidas hoodie and dark gloves. He ran up to Ms Bushnell in the Finance Department yelling out for money. She was shoved in the back. The till was opened and he grabbed most of the money out of the till. He then followed her to the safe room. She opened it, she was threatened to be killed and he stole all of the cash.

11. [11]
    Ioane is not charged with this robbery.

12. [12]
    With respect to Count 2 it is alleged that Sakaio Tuato and another person entered the Durack Tavern on 29 June 2013 armed with knives and wearing balaclavas. They approached the employee who was in the process of closing the drive-through bottle shop. He was pushed to the ground and kicked, the till was pulled out and bottles of alcohol were stolen. It is alleged that the get-away car had a registration number of 297 MBX and Sakaio Tuato was in possession of this car at the time of the robbery.

13. [13]
    Ioane is not charged with this robbery.

14. [14]
    Turning to Counts 3 and 4 it is alleged that at 12.24 pm on 2 July 2013 two offenders entered the Cash Converters at Kallangur wearing balaclavas. It is alleged Sakaio was armed with a rifle and the other either John or Apelu was armed with a knife. The offender with the knife jumped the counter and the other offender with the rifle pointed the barrel of the gun directly at the complainant’s face. He was forced to open the safe. The two offenders left the scene and were driven away in a white Mitsubishi Magna 986 EZZ. This car was purchased by John Tuato in May 2013. A witness saw four persons in the car.

15. [15]
    Evidence alleged to connect Apelu with the robbery include his height from the CCTV footage, black Nike shoes with a white tick located at 3 Andromeda Street on 30 July 2013, a New Zealand accent, dark complexion/islander, tanned skin, stolen jewellery at a hotel in Kangaroo Point where he was staying on 30 July 2013, the purchase of a Holden Commodore for $3,000.00 on 2 July 2013 and a purchase of a box trailer on 3 July 2013 for $1,740.00.

16. [16]
    With respect to Counts 5, 6 and 7 at 3.33 pm on 22 July 2013 at Cash Converters, Moorooka, it is alleged the three offenders entered the store. It is alleged that Sakaio was armed with a knife and John was armed with a rifle. The third offender who was unknown was not armed. The offender with the knife jumped the counter and attempted to open the register. The offender with the rifle pointed the gun at customers and told them to get on to the ground. The person behind the finance counter was approached and asked to get the money out. Money was then taken. Other threats were made.

17. [17]
    Ioane is not charged with these offences.

18. [18]
    With respect to Counts 8 and 9 it is alleged that on 16 September 2013 at the Springfield Lakes Hotel two offenders entered the address armed with machetes at 11.44 pm. The first offender approached the manager asking to be taken to the safe room. $28,000.00 was obtained. The second offender demanded the wallet of a patron. A police dog trekked the scent of the offenders to the end of Dew Street. Three weeks earlier a resident of Dew Street had photographed a car belonging to John Tuato’s girlfriend (711 AUX) after seeing two Pacific Islander men acting suspiciously.

19. [19]
    Ioane is not charged with these offences.

20. [20]
    Counts 10 and 11 involve two offenders at 10.15 pm entering the Centenary Tavern, Sumner. Sakaio only is charged with this offence. He is alleged to have been armed with a knife. The second offender was armed with a semi-automatic rifle. The offender armed with the knife jumped over the gaming room bar and demanded and physically pushed an employee to the safe room. Cash was taken. Another person was assaulted in the premises.

21. [21]
    Ioane is not charged with these offences.

22. [22]
    With respect to counts 12 and 13 it is alleged that Sakaio on 3 October 2013 robbed the Chardons Corner Hotel at Annerley. It is alleged that at 11.30 pm on that date two offenders entered the Chardons Corner Hotel. One was armed with a semi-automatic rifle and Sakaio was armed with a knife. They were both wearing scream masks. An attendant was yelled at, money was taken from a safe.

23. [23]
    Ioane is not charged with these offences.

24. [24]
    With respect to Count 14 it is alleged that John Sakaio and Apelu were involved with the robbery of the Rocklea Hotel on 16 October 2013. It is alleged that at about 10.00 pm two offenders entered the Rocklea Hotel, one armed with a semi-automatic rifle and the other with a knife.  The offenders told patrons to get inside and sit on the floor.  They then approached the barmaid and demanded to be taken to the safe.  She complied and about $30,000.00 was taken.  The offenders jumped in a get-away car, a white Holden Commodore which was on Medway Street.  This car is the same make, colour and model as used by Apelu. 

25. [25]
    The officers intercepted him leaving 3 Andromeda Street, Inala at 12.30 am on 17 October 2013 in the white Holden Commodore 756 TBL.  The car was seized and searched and $8,000.00 was located in a red jumper beside the spare tyre in the boot of the car.

Relevant law

26. [26]
    Section 567 of the Criminal Code provides:

“567 Joinder of charges

3. (1)
   Except as otherwise expressly provided, an indictment must charge 1 offence only and not 2 or more offences.

3. (2)
   Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.

3. (3)
   Where more than 1 offence is charged in the same indictment, each offence charged shall be set out in the indictment in a separate paragraph called a count and the several statements of the offences may be made in the same form as in other cases without any allegation of connection between the offences.

3. (4)
   Counts shall be numbered consecutively.”

27. [27]
    Section 568 (11) and (12) provide:

“(11) Any number of persons charged with committing or with procuring the commission of the same offence, although at different times, or of being accessories after the fact to the same offence, although at different times, and any number of persons charged with receiving, although at different times, any property which has been obtained by means of a crime or misdemeanour, or by means of an act which if it had been done in Queensland would be a crime or misdemeanour and which is an offence under the laws in force in the place where it was done, or any part of any property so obtained, may be charged with substantive offences in the same indictment, and may be tried together notwithstanding that the principal offender or the person who so obtained the property is not included in the same indictment, or is not amenable to justice.

3. (12)
   Any number of persons charged with committing different or separate offences arising substantially out of the same facts or out of closely related facts so that a substantial part of the facts is relevant to all the charges may be charged in the same indictment and tried together.”

28. [28]
    Potentially, the charges are joinable. It appears to be arguable that the offences are a series of offences of the same or similar character.

29. [29]
    It seems to me that the real issue in this case is whether the evidence of the six other robberies is admissible against Ioane and, further, whether the discretion should be exercised under s 597B.

30. [30]
    Section 597B of the Code provides:

“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.”

31. [31]
    There is good reason in point of principle and policy why persons charged with committing offences jointly ought to be tried together.^[1]  This is because 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.^[2]

32. [32]
    Separate trials may be justified where:

1. (a)
   The evidence in one case is significantly weaker than and different to that of the other;

2. (b)
   Where there is a real risk that the weaker prosecution case will be made immeasurably stronger by reason of prejudicial material in the case of the other accused; and

3. (c)
   Where the degree of prejudice from evidence admissible only in the case of one accused to the case of the other accused is so great as to make it unfair to try the accused together.^[3]    

33. [33]
    It was noted by Philippides J in R v Bargenquast and Holmes^[4] that:

1. (a)
   Ordinarily careful directions to the jury will be an adequate means of ensuring a fair trial;

2. (b)
   But there may be some cases where it is impossible or difficult to disentangle the evidence such that a separate trial should be ordered; and

3. (c)
   The categories of case where it is appropriate to order separate trials are not closed. 

34. [34]
    In R v Swan,^[5] 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.”

35. [35]
    Hunt J in R v Middis:^[6]

“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.”

36. [36]
    In this matter having considered the evidence produced, it seems to me that the evidence of the facts alleged on the other six robberies is not admissible against the applicant or at the least should be excluded. Whilst evidence of association with the other defendants is admissible it appears to me that the evidence of the facts of the other robberies do not advance that fact and therefore are not probative. In any event, the evidence at worst is of slight probative value far outweighed by its prejudicial effect and should be excluded against the applicant. I also note that defence counsel informed the court during argument that an admission would be made as to association.

37. [37]
    There appears to be a suggestion in the Crown submissions that the evidence of the other six robberies is propensity evidence against the applicant. However, I consider it not permissible to use the propensity of others to somehow bolster the case against the applicant. The fact is he is not charged with the other six robberies and as I understand the position there is no admissible evidence that he was involved in any of those.

38. [38]
    The Crown has relied on R v Festa^[7] as supporting its position.

39. [39]
    I consider this case to be different. In Festa it is to be noted that there were 3 robberies.  All were very similar.  The first count involved the co-offender only whilst the appellant was charged with the last two robberies.  Eight out of the ten counts on the indictment involved the appellant.  This is different to the instant case.

40. [40]
    The appellant had made an application for a separate trial. This issue was not considered by the High Court. It was held by the Court of Appeal at [3] that most, if not all, of the evidence against the co-accused was admissible against the appellant. Importantly, even then the court noted that evidence as to the first count was not admissible against the appellant. This is the situation here.

Disposition

41. [41]
    In this case I consider there is a real risk of prejudice to the applicant if he is tried with the other offenders who are charged with a number of other robberies. There is a real risk despite careful direction to the jury that the defendant will be tarred with the same brush concerning the other robberies.

42. [42]
    He is an associate of theirs. The jury may well impermissibly reason he might even be the unidentified robber on some of the other counts.

43. [43]
    Further, I consider that the propensity evidence makes the case against the other two accused far stronger than that against the applicant. Joinder will immeasurably and impermissibly strengthen the case against the applicant.

44. [44]
    I consider that detailed directions may well not overcome such prejudice.

45. [45]
    In the circumstances, in the exercise of my discretion, I have determined to order that the applicant be tried separately from the other two defendants.

Order

46. [46]
    I order that the applicant Apelu Ioane be tried separately from the other accused.