The Queen v Joseph James Thane
[2018] QDCPR 32
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- Unreported Judgment
- The Queen v Joseph James Thane[2018] QDCPR 32
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The Queen v Joseph James Thane[2018] QDCPR 32
The Queen v Joseph James Thane[2018] QDCPR 32
DISTRICT COURT OF QUEENSLAND
CITATION: | R v Thane [2018] QDCPR 32 | |
PARTIES: | The QUEEN (respondent) v JOSEPH JAMES THANE (applicant) | |
FILE NO/S: | 59/18 | |
DIVISION: | Criminal | |
PROCEEDING: | Pre-trial Application | |
ORIGINATING COURT: | Maroochydore District Court | |
DELIVERED ON: | 20 June 2018 | |
DELIVERED AT: | Maroochydore District Court | |
HEARING DATE: | 11 June 2018 | |
JUDGE: ORDER: | Long SC DCJ | |
CATCHWORDS: | CRIMINAL LAW – JOINDER OF COUNTS – SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER – where the defendant is alleged to have committed two offences of armed robbery on consecutive days – whether there is a sufficient nexus or connection between the offences to allow for the offences to be joined on the indictment CRIMINAL LAW – SEVERANCE OF COUNTS – whether joinder of a series of alleged armed robberies on consecutive days presents any unacceptable risk of prejudice or embarrassment in the defence of the allegations, particularly as to the misuse of inadmissible evidence in the proof of any offence – whether the evidence relating to each robbery is cross-admissible – whether appropriate judicial direction may guard against any such risk CRIMINAL LAW – ADMISSIBILITY OF EVIDENCE – whether the probative value of the evidence outweighs any prejudicial effect – where the admissibility of separate aspects of the evidence may require clarification | |
LEGISLATION: | Criminal Code (Qld) ss 567(2), 587A | |
CASES: | Pfennig v R (1995) 182 CLR 461 Phillips v R (2006) 225 CLR 303 R v Collins; Ex-parte Attorney General [1996] 1 Qd R 631 R v Cranston [1988] 1 Qd R 159 R v Navarolli [2010] 1 Qd R 27 | |
COUNSEL: | J P Feely for the applicant G Cummings for the respondent | |
SOLICITORS: | Aboriginal and Torres Strait Islander Legal Services for the applicant Office of the Director of Public Prosecutions for the respondent | |
- [1]The applicant is before the Court in respect of an indictment charging three counts. Count 1 is an allegation that on 7 January 2017 at Currimundi, in the state of Queensland, he committed the offence of armed robbery. Count 2 alleges that on 8 January 2017 at Beenleigh, he again committed the offence of armed robbery. Count 3 alleges the incidental unlawful use of a motor vehicle in order to facilitate the commission of the armed robbery at Beenleigh on 8 January 2017.
- [2]The applicant seeks orders that:
- There be a separate trial in respect of count 1; and
- The evidence of the witness Bronte Walter Robbins be excluded.
- [3]The prosecution case against the applicant is a wholly circumstantial one, which is summarised in the prosecution outline as seeking to prove a sequence of connections of the defendant to other persons and particularly to the use of a vehicle, which is alleged to have been taken from a residence at Forrest Lake on 29 December 2016, without the consent of the owner. That vehicle is directly identified as being used in the commission of the offences which are charged as counts 2 and 3.
- [4]In respect of the first order sought by the applicant it is contended both that:
- There is no justification for joinder of count 1, pursuant to section 567 of the Criminal Code; and
- There is an absence of justification of cross-admissibility of the similar fact or propensity evidence inherent in the allegations as to the separate armed robberies and that this warrants an order for severance of count 1, pursuant to section 597A of the Criminal Code.
- [5]In respect of the first point and although the prosecution sought to engage all limbs of section 567(2) to justify joinder, it is suffice to note that provided the requisite nexus or connection in order to properly constitute a ‘series’ of offences is established, it was not contended that the offences in counts 1 and 2 were not of at least a similar if not of the same character and there was no contention as to the proper joinder of count 3 with count 2, as being founded on the same facts.
- [6]It should be concluded that there is sufficient nexus or connection to constitute such a series of offences, having regard to considerations of time, place and the circumstances which are the focus of the prosecution case.[1] In particular and whilst those circumstances are not so limited, it may be noted that:
- (a)All of the offences are alleged to have occurred over a period of less than 41 hours on 7 and 8 January 2017, the robbery at Domino’s Pizza Store at Currimundi (Count 1) and where about $280 cash was taken, at a little after 1.30 am on 7 January and the robbery at the Toyworld store at Beenleigh (Counts 2 and 3) and where $606.80 cash was taken, at about 4.30pm on 8 January;
- (b)Whilst the places of offending are not necessarily geographically close, a particular connecting feature is the evidence associating the applicant with the stolen motor vehicle, on 5 January 2017, at the Beerburrum Street service station Caloundra, and again on 7 January 2017 and, within about an hour and a half of the occurrence of the robbery at the Domino’s Pizza Store at Currimundi, at a service station in Carseldine. There is also the direct identification of the use of that vehicle in the commission of the Toyworld store robbery at Beenleigh on 8 January 2017. And on 9 January 2017, the vehicle is found abandoned at McDowell and in it, is found the receipt for the purchase of a mobile telephone at the Carseldine service station on 7 January 2017 and some clothing similar to that worn by the robber at the Toyworld store at Beenleigh on 8 January 2017;
- (c)The prosecution case is that the applicant is able to be identified from CCTV images obtained from the service station at Caloundra and thereby associating him with the vehicle. He is also to be observed wearing a cap with a distinctive marking (“Trooper”) and which he can again be identified as wearing in the CCTV images from the service station at Carseldine, at about 3 am on 7 January 2017. At that time, it is further alleged that he is also wearing a pair of shorts with a distinctive tear on the left rear, which may be compared as being a distinctive feature of the clothing worn by the offender in the CCTV images from the Domino’s Pizza store at Currimundi and in contrast to his conduct on 5 January 2017, at the service station in Beerburrum Street Caloundra and where he drove off without paying for fuel put into the vehicle, at the service station at Carseldine, at about 3am on 7 January 2017, he is observed to be in possession of cash and tenders $95 for the purchase of a mobile telephone and phone credit;
- (d)Otherwise, it is the prosecution case that the robber in each instance, and whilst having facial features largely obscured or masked, may be discerned as having a similar build and appearance to the defendant and as he is otherwise identified on the service station CCTV images;
- (e)In each robbery, the offender is differently armed but the prosecution seek to associate the defendant to each weapon as follows:
- The offender at the Domino’s store at Currimundi on 7 January 2017 was armed with a rifle fitted with a scope and carry strap. On 19 January 2017, such a rifle was located, upon search of the residence of the sister of Khia Akash Gribben, at 11 Coral Street Beenleigh, together with a partially open rectangular cardboard box, which was large enough to have contained the rifle and was still partly wrapped in “party balloon” wrapping paper. The connection is provided by evidence that Mr Gribben is identified as being with the defendant at the Carseldine service station at about 3am on 7 January 2018 and also in a video recording made at the Beerwah train station, on 16 January 2017, which shows both the applicant and Mr Gribben attending there together, with the applicant carrying a rectangular parcel wrapped in “party balloon” paper, which is handed to Mr Gribben, before he is seen to board a south bound train. Later, Mr Gribben is again recorded as disembarking a train at the Trinder Park station, still carrying the wrapped parcel;
- (a)
- (ii)The offender at the Toyworld store at Beenleigh had a device described as a ‘taser-like device’, which he activated after revealing two electrodes, in order to cause an arc to form between those electrodes. Then and in conjunction with evidence that on 17 January 2017 the defendant is identified as being present at the residence at 51 Peachester Road Beerwah, it is noted that on 22 January 2017 items were located in the search of that residence, including some consistent with clothing used in each robbery and in particular the distinctive cap used at the Toyworld robbery at Beenleigh and also personal property of the defendant, including his Medicare card. Although the subject of separate objection, the prosecution also rely on the evidence of Mr Robbins, a neighbour to the property at 51 Peachester Road Beerwah, as to his hearing, on 18 January 2017 at about 4 pm, sounds emanating from that property, which are relied upon as being indicative of the use of a taser device by an unknown person or persons, including his hearing an electrical discharge or ‘arcing’ sound.[2]
- (f)The defendant was located by police on 22 January 2017 at 12 Katherine Street Beerwah and on the bed in the room where he was found, police also found the mobile phone purchased by the defendant at the service station at Carseldine on 7 January 2017; and
- (g)The prosecution also point to some commonality of method, or modus operandi, of the offender in each robbery, being:
- The presentation of the weapon to an attendant;
- The production or presentation of a bag, with the demand for money to be placed in it; and
- The specific request as to whether there was cash under the cash tray, before departure.
- [7]Such connection or nexus, and accordingly appropriate joinder pursuant to section 567(2), does not depend upon considerations of mutual or cross-admissibility of the evidence in proof of the joined but separate allegations, either in full or in part. However and where there is such cross-admissibility, that may well establish or confirm that requisite nexus or connection.[3]
- [8]It has been recognised that section 567(2) operates ‘in the interests of the due and expedient administration of criminal justice and in the interest of finality of litigation in relation to the particular accused’, such as to allow for a single enquiry ‘into matters which arise out of or which essentially involve common issues of fact or law’, subject to the exercise of discretion pursuant to section 597A of the Code, where there is potential for injustice.[4] Section 597A(1) provides:
- “(1)Where before a trial or at any time during a trial the court is of opinion that the accused person may be prejudiced or embarrassed in the person’s defence by reason of the person’s being charged with more than 1 offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any 1 or more than 1 offence charged in an indictment the court may order a separate trial of any count or counts in the indictment.”
- [9]Whilst it may be accepted, as contended for the applicant, that section 597A(1) is enlivened upon considerations as to potentiality or unacceptable risk of prejudice, it is clear that such risk is to be assessed having regard to the availability and efficacy of judicial direction in order to guard against any such risk.[5] The risk is of impermissible prejudice, which is particularly identified as the potential use of inadmissible evidence as proof of an offence.[6] Further and as identified in Pfennig v R,[7] except where it is appropriate for such reasoning to be engaged, the purported use of propensity reasoning or similar fact evidence, involves such potential for prejudice, or misuse of the evidence, as to warrant exclusion of it, except where the probity of the evidence clearly transcends such prejudicial effect. For instance and as observed in the joint judgement:
“In this Court, in conformity with earlier English authorities, it was accepted that propensity evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the crime charged. But it was accepted that it is admissible if it is relevant in some other way, that is, if it tends to show that the accused is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition. It was also accepted that, in order to be admissible, propensity evidence must possess "a strong degree of probative force" or the probative force of the evidence must clearly transcend the prejudicial effect of mere criminality or propensity.”[8]
- [10]However, the exercise of the discretion provided in s 597A(1) requires consideration of the risk of such misuse of evidence and also as to whether or not any such risk may be adequately addressed by appropriate judicial direction. Because the first consideration requires attention to whether or not there is cross-admissibility of evidence and in turn the probity of the evidence relied upon, before determining whether or not to exercise discretion to sever count 1, it is necessary to note that the second issue is as to the application for the exclusion of the evidence of the witness Bronte Walter Robbins. That is because this seeks the exclusion of some evidence from which the prosecution seek to establish a circumstantial fact.
- [11]Mr Robbins’ evidence involves three components or aspects:[9]
- First, he states that about 4.00 pm on 18 January 2017, he heard noises coming from the property at 51 Peachester Road and situated to the rear of his property and which he describes as “initially coming from inside a house and then from the backyard” and “a noise like electricity crackling”;
- Secondly, he states his ‘belief’ that the noise was coming from “some type of ‘Taser’”, upon the basis of familiarity with noise produced upon activation of such a device, from television shows; and
- Thirdly, he recalls that he heard a male voice say “fuck off with that thing, don’t hit me with it”, followed by laughing by a number of males.
- [12]It may be noted that no separate objection was raised as to any of these individual components or aspects of the evidence. Accordingly, it was not separately put in issue and able to be determined whether the prosecution did seek to rely upon the second aspect, or statement of belief or opinion of the witness as to the nature of the device from which the noise had emanated, as opposed to an alternatively suggested reliance upon expressed consistency with, or similarity to, the production of noise with which the witness was familiar, or had past experience. However and given the identified contemporaneity and apparent association of the words with the noises that were heard, the prosecution do intend to rely upon that third aspect. However what has not been sought or identified, is to the precise basis upon which there is such reliance, or the use to which the evidence may be put by the jury.
- [13]The application for exclusion of this evidence was made and only pursued upon the basis that the entirety of it was so lacking in probative value as to invite no more than speculation and therefore prejudicial effect, in the nature of misuse of the evidence and that effect outweighing any probative value of the evidence.[10]
- [14]However and as pointed out for the prosecution, what is sought to be relied upon is but one part of a circumstantial case. Accordingly, the evidence must be considered in the context of the other evidence comprising that case and its capacity to support the ultimate conclusion that the only rational inference to draw from all of the evidence is that the defendant committed any charged offence.[11]
- [15]However it does remain necessary to note that in this respect, the prosecution appear to be seeking that an inference be drawn from the evidence of Mr Robbins, that a taser-like device was present at the property at 51 Peachester Road on 18 January 2017, in conjunction with the evidence of the defendant’s association to that property at about that time. Whilst it is not immediately clear that such a conclusion should necessarily be regarded as no more than speculation,[12] the determination of that issue must necessarily depend upon the form in which the evidence is sought to be led and is allowed to be placed before the jury, the identification of the basis of reliance and use that the jury may make of the third aspect or component and the precise identification of the circumstantial fact which is sought to be inferred in reliance on the evidence.
- [16]Accordingly and as these considerations have not yet been engaged, it is not appropriate to attempt to determine this second aspect of the application or express any concluded view as to the admissibility of this evidence. Rather the application should be adjourned for further consideration, if necessary, after the prosecution has identified the form in which it will seek to lead the evidence of Mr Robbins and the basis of admissibility and use of the third aspect of the evidence is identified and any further specific objection to any of the individual aspects of this evidence are identified and considered.
- [17]Notwithstanding this conclusion, it is nevertheless possible to determine the issue as to whether or not to exercise discretion to order a separate trial of count 1. This is because, even without bringing into consideration any circumstantial fact that may be established by the evidence of Mr Robbins, it should be observed that the circumstantial case described in the material before the Court on this application, is of considerable apparent substance and there is a clear appearance of such underlying unity or connection in the circumstantial proof of each charge and such apparent cogency or probative value in support of the inferences that prosecution seek, to conclude that to the extent that there is reliance upon cross-admissibility of the proof of the commission of each robbery by the applicant, there is “a sufficient nexus” and “strength of probative force” as to “clearly transcend its merely prejudicial affect”.[13] And that viewed in the context of the prosecution case overall, there is no reasonable view of it which is consistent with the innocence of the applicant.[14]
- [18]In coming to such a conclusion, it is of course necessary to note that as explained in Phillips v R,[15] at this juncture, that conclusion is reached upon the assumption that the prosecution will establish for the jury the primary circumstantial facts which are now summarised for the Court.
- [19]Accordingly and to the extent that the prosecution case does rely upon crossadmissibility in the form of any similar fact or propensity reasoning,[16] one aspect of the application for severance is not made out.[17] And neither should it be concluded that the second contention is made out. That is, that a prospective jury would not be able to disentangle the evidence relevant to each count such as to give separate consideration to the charges.[18]
- [20]Once it is understood that appropriate judicial direction may be given as to the need for separate consideration of the allegations, particularly as to the commission of each robbery, and also as to the appropriate use of any similar fact or propensity reasoning (on the basis of underlying unity or commonality of reliance on circumstances) and as to the avoidance of the prejudice of reasoning on the basis of mere propensity or disposition, there is no apparent risk of any such prejudice to the applicant and such as to warrant an exercise of discretion to sever count 1 for separate trial. In particular, this is because it is necessary to understand that any such reliance by the prosecution is largely incidental to the thrust of its case and to understand that all such directions would be given and understood in the context of, and in the context of the constraints of, the ordinary directions as to the use of circumstantial evidence. And in particular the necessity that, before the applicant could be convicted of either robbery, the jury would need to be satisfied that the only rational inference to be drawn from all of the circumstances is that he, and not someone else, was the robber in that particular instance.
- [21]Therefore, it is appropriate to now make an order dismissing the application for a separate trial of Count 1 and to give directions as to the listing of the trial, allowing for any necessary further consideration of the objection to the evidence of Mr Robbins.
Footnotes
[1] R v Cranston [1988] 1 Qd R 159 at 164.
[2] This evidence is discussed in more detail below.
[3] See R v Navarolli [2010] 1 Qd R 27 at [134]-[139].
[4] R v Collins; ex-parte Attorney General [1996] 1 Qd R 631 at 637.
[5] De Jesus v R (1986) 68 ALR 1, at 4-5 and 12-14.
[6] See Sutton v R (1984) 152 CLR 528 at 541-2.
[7] Pfennig v R (1995) 182 CLR 461 at 480-1.
[8] Ibid.
[9] See Exhibit 1 statement of BW Robbins, dated 22 February 2017.
[10] That is, in the sense discussed by Gleeson CJ in Festa v R (2001) 208 CLR 593 at [22].
[11] In this instance the offences charged as counts 2 and 3.
[12] Otherwise it is well recognised that the question as to whether the inference should or is drawn is peculiarly one for the jury.
[13] Phillips v R (2006) 225 CLR 303 at 320–1 [54].
[14] Pfennig v R (1995) 182 CLR 461 at 485.
[15] At 323–4 [63].
[16] That is in the sense of reliance upon any conclusion that the applicant is the robber in any one of the robberies, as evidence making it more likely that he is also the robber in the other instance.
[17] See applicant’s written submissions at [27].
[18] Ibid.