The Queen v Paton[2021] QDCPR 41

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application pursuant to s 590AA(2)(b) of the Criminal Code 1899 (Qld) by the defence to sever various counts on the indictment and for separate trials.

The charges

2. [2]
   The defendant is charged as follows:

   1. (a)
      Counts 1, 2 and 3 allege what is commonly referred to as a “ram raid” of a Prouds Jewellery store at the Logan Central Plaza on 20 December 2019.
   2. (b)
      Counts 4, 5 and 6 relate to a ram raid on a Prouds Jewellery store at Runaway Bay Shopping Centre on 4 January 2020.
   3. (c)
      Counts 7, 8, 9, 10 and 11 relate to a ram raid on a Prouds Jewellery store at Pines Shopping Centre on 17 January 2020. Count 9 alleges the use of a black handgun to assault by threat of a security officer and Count 11 is the arson of a car that was used.
   4. (d)
      Counts 12, 13 and 14 relate to a burglary offence in Brookfield.
   5. (e)
      Counts 15, 16, 17 and 19 relate to a ram raid at Wallace Bishop and Prouds Jewellery stores at the Toombul Shopping Centre on 25 January 2020.
   6. (f)
      Count 20 concerns a firearm located by police at the time of the search of the defendant’s hotel room on 25 January 2020.

The facts

3. [3]
   In 2019, the Queensland Police Service commenced Operation “Sierra Mudbulls” to investigate ongoing break and enter offences in jewellery stores across shopping centre in south east Queensland and northern New South Wales.

Counts 1 to 3 - Offending at Logan Central Plaza

4. [4]
   On or about 14 or 15 December 2019 it was reported to police that a blue Kia Sorrento (496YOO) had been stolen from Murwillumbah. It was further reported that a Holden Captiva (CZY04A) had been stolen from Banora Point around 20 December 2019.
5. [5]
   On 20 December 2019, it is alleged that at about 4.29am the defendant drove the stolen Kia Sorrento bearing false registration plates (305VQL) (Count 1) to the Logan Central Plaza. It is alleged that the defendant and two other offenders ram raided the Prouds Jewellery store (Count 2). CCTV captured the offenders entering the store with gloves and clothing disguising their faces and using tools (an axe and a red glass breaker/torch shaped item) to smash open cabinets and steal items of jewellery (Count 3).
6. [6]
   After being notified about these offences the police commenced their investigation. On the same day as the offence the Holden Captiva was located in Kelly Avenue, Coomera and the Kia Sorrento was located in Snowden Street, Slacks Creek. CCTV footage obtained from outside the shopping centre showed the two cars driving together at about 4.32am, a few minutes after the offences occurred. Upon locating the Kia Sorrento, a forensic examination was completed and damage to the car was consistent with that being used in the ram raid. It was also identified that false registration plates had been used and the correct registration was 496YOO.
7. [7]
   Later that day the owner of Mercedes Benz, Mr Long, reported to police that his Mercedes Benz (PSL666) had been stolen.
8. [8]
   On 25 January 2020, police were notified that the stolen Mercedes Benz was located at the Calamvale Hotel. When police attended the hotel, they located the defendant in one of the hotel rooms. A search of the hotel room was conducted, and jewellery was in multiple bags together with a key for another Mercedes Benz car (186YJF). Police searched the stolen Mercedes Benz car bearing registration plates 023MWO and 023VPA, but the VIN number confirmed the correct registration number PSL666. When police searched the car, they located items of jewellery in the boot of the car. A store manager from Prouds confirmed the jewellery items belonged to various Prouds stores and importantly five of the items located had been stolen from the Logan Central Plaza store the subject of Counts 1, 2 and 3.

Counts 4 to 6 – offending at Runaway Bay Shopping Centre

9. [9]
   On 29 December 2019, Mr Cho reported that his white Mercedes Benz (186YJF) had been stolen.
10. [10]
    On 4 January 2020 at about 4.30am the stolen Mercedes Benz was driven into the Runaway Bay Shopping Centre causing damage to the entrance (Counts 4 and 5). The defendants (Mr Patton and Mr Reece Williams) then conducted a ram raid on the Prouds Jewellery shop. They were wearing clothing to hide their faces; gloves and one was carrying a four-way tyre iron and one carried what appeared to be a gun/sword to break glass. Whilst in the store they stole items of jewellery belonging to the store (Count 6). This offending was captured by CCTV footage. Three offenders are visible in the footage. A short time later the defendants discarded the car in the carpark of a nearby aged care facility. The second car was consistent in appearance with the Mercedes sedan belonging to Mr Long. Police were notified the car had been discarded at about 6am. Police attended a short time later and searched the car. In the boot they located a quantity of photographs and a handwritten note. Blood was found on the driver’s door and next to where the car was. DNA testing disclosed this was most likely Mr Williams blood. At the conclusion of the search police towed the car to a holding yard. A fingerprint analysis revealed two fingerprints belonging to Mr Paton were located on the back of one of the photographs. Additionally, a handwriting expert determined that he was the author of the handwritten note. After Mr Paton was arrested in respect of Counts 1 to 3 police attended the holding yard on 6 February 2020. Police were in possession of the additional Mercedes Benz key and were able to unlock the car and start it.
11. [11]
    On 10 May 2020, Williams was arrested by police and made full admissions to the offending. He declined to nominate his co-offenders.

Counts 12 to 14 – offending at Brookfield

12. [12]
    On 7 January 2020, the defendant and a male co-offender were captured on CCTV footage outside the home of Mr Bartlett in Brookfield. On the footage each were wearing gloves and the defendant attempted to cover his face passing the security camera. He was holding a shortened shotgun similar in appearance to that seized from his room at the Calamvale Hotel on 26 January 2020. The defendant and his co-offender gained entry to the house and once inside searched the dwelling and strew property all over the rooms, making a mess. They stole two handbags valued at $1,000, a quantity of jewellery, an Apple watch, personal documents including business receipts, a cheque book and passport.

Counts 7 to 12 – offending at the Pines Shopping Centre (charged with Teahan Hardiman)

13. [13]
    On 16 January 2020, Mr White reported his Toyota RAV wagon (362LXN) had been stolen.
14. [14]
    On 17 January 2020, Malatai Leban was working as a cleaner the Pines Shopping Centre in the early morning. During his shift he noticed that a Toyota RAV4 was being driven inside the shopping centre (Count 7). He looked up and saw the defendant in the car. It is alleged that the defendant reached down and pulled out what appeared to be a gun and pointed it at Leban (Count 9).
15. [15]
    A few seconds later the car was used in a ram raid at the Prouds store (Count 7 and 8). Footage shows the two defendants wearing gloves with their head and faces covered, smashing glass counters with a hammer and crowbar, and placing items of jewellery in bags before leaving in the car (Count 10). Police were notified at about 4.15am that the car which had been used was located at Elanora on fire (Count 11). During a forensic examination of the Prouds store, blood was located, and DNA profiling revealed that it was most likely the defendants who had contributed to that DNA.
16. [16]
    Mr Paton was arrested on 26 January 2020 and declined an interview. Mr Hardiman was also arrested and declined an interview.

Counts 15 to 20 – offending at Toombul Shopping Centre

17. [17]
    At 4.56am on 25 January 2020, a white Toyota Corolla with a stolen registration plate (930WPG – which had been stolen from Southport on 13 January 2020) was driven from Sandgate Road to the Priceline entry at the Toombul Shopping Centre in Nundah. The car drove onto a walkway and to the door to the shopping centre and crashed through the doors. It continued through the pedestrian arcade (Count 15) a ram raid was conducted on the Wallace Bishop store. The defendant and two male persons wearing gloves and with their heads covered got out of the car and started smashing the glass cabinets with instruments including a hammer and crowbar. The offenders grabbed a large quantity of jewellery from inside the glass cabinets put them into a bag and went to the car (Count 16).
18. [18]
    The offenders reversed the car and then conducted a ram raid on the Prouds Jewellery store. All offenders smashed glass cabinets with instruments including a crowbar and hammer and a large quantity of jewellery was taken and placed in the car (Count 17).
19. [19]
    The car crashed into the glass window of a nearby optical store (Count 18) and then drove out onto the street. The offences were captured on CCTV footage. There is footage from Union Street outside of the shopping centre showing the offenders changing clothing and transporting items to a second vehicle (the Mercedes sedan stolen from Mr Long).

Arrest and detection

20. [20]
    At about 8pm on 25 January 2020, police received information about a stolen white Mercedes Benz in the underground carpark at the Calamvale Hotel.
21. [21]
    At 1.25am on 26 January 2020, police attended the Calamvale Hotel. The defendant was staying in room 408.  He was arrested for burglary and transported to the Beenleigh Watchhouse. The room was secured. Police found the shortened shotgun (Count 20) and two shotgun cartridges. They found a grey Adidas bag containing gold jewellery and the defendant’s driver licence, a Calvin Klein bag with; two gold rings, a gold chain, a silver chain and a gold ring, gold earrings, a gold watch, two gold necklaces, two gold bracelets, four pairs of earrings and a ring from behind the bar fridge. In addition, a clip seal bag containing cannabis was found on the bed together with a mobile phone and some other items. Jewellery was identified as belonging to Wallace Bishop and Prouds Toombul. Numerous jewellery items had their tags attached. Some of the jewellery seized was identified as coming from Prouds Pines and Runaway Bay stores. A female person was present in the room. She said she was a friend of the defendants but refused to provide identifying particulars. Her bag was searched and 17 $100 notes and a pink pouch containing assorted jewellery with tags was located. Also, on her person was two silver chains. The jewellery was seized, and she was taken to the police station. One of the silver heart necklaces seized from her came from the Prouds Toombul store.
22. [22]
    Police also seized a red Nike bag on the floor containing men’s clothing, a Tommy Hilfiger bag, and a Mercedes car key in a man’s shoe. Police found a stolen white Mercedes in the underground carpark. The key found in the shoe belonged to that car. Displayed on the car was a stolen registration plate 023VPA which was used in the Runaway Bay offending, Counts 4 to 6.
23. [23]
    The VIN number of the car identified it as PSL666 which had been stolen from Crestmead on 20 December 2019. Police searched the car and found:

    1. (a)
       A pair of black gloves
    2. (b)
       An assorted coin collection
    3. (c)
       Assorted metals
    4. (d)
       Brown coloured leather style wallet
    5. (e)
       Single gold coloured elephant shaped earing and a display holder
    6. (f)
       Assorted small multi coloured stones
    7. (g)
       Samsung mobile phone
    8. (h)
       Lumix camera
    9. (i)
       Westpac bank card in the name of Kilmeister
    10. (j)
        Clip seal bag with cannabis seeds
    11. (k)
        Water pipe
    12. (l)
        Corolla car key
    13. (m)
        Mitsubishi car key
    14. (n)
        Silver key with remote
    15. (o)
        Silver key with remote
    16. (p)
        Silver coloured flower shaped brooch
    17. (q)
        Clear container with large quantity of assorted jewellery with tags
24. [24]
    The property was seized and taken to the Logan Central Property Office. 39 jewellery items were identified as having been stolen from the Toombul break-in on 25 January 2020.

Defence submissions

25. [25]
    The defence informed the court that the defendant intended to plead guilty to Counts 4 to 6 the Runaway Bay Shopping Centre offending; Counts 12 to 14 the offending at Brookfield; Counts 7 to 11 the offending at the Pines Shopping Centres (except Counts 9 and 11); Counts 15 to 20 the offending at the Toombul Shopping Centre. The defendant intended to plead not guilty to Counts 1 to 3.
26. [26]
    Separate trials are sought on Counts 1 to 3 and Counts 12 to 14.
27. [27]
    It is submitted that the facts relating to each of the ram raids and burglary are dissimilar. It is submitted that there is no striking similarity about the various ram raids. The allegations in respect of the ram raids are unremarkable and fail to demonstrate any underlying unity or pattern of activity. It is also submitted there is impermissible prejudice by the joinder. It is challenged that there is similar fact evidence in this case. It is submitted that there are a number of dissimilarities in the various offences. It is pointed out that there is evidence that there were other ram raids between June 2019 and February 2020 and the defendant was remanded at a time when some of those occurred.

Crown submissions

28. [28]
    The Crown submits that the counts are joinable. It is submitted that there is a series of offences committed for a single purpose here. It is also submitted there is a similarity. It is submitted the offences are cross admissible on each other. It is submitted that directions by the Judge would cure any perceivable prejudice.
29. [29]
    On the burglary offence it is submitted this is part of the prosecution of a single purpose namely to steal the property of others and being prepared to be armed. This is particularly relevant to count 9.
30. [30]
    In those circumstances, all of the counts are joinable.

Discussion

31. [31]
    Ordinarily only one count may be charged in an indictment (s 567(1) of the Code).  However, charges for more than one indictable offence may be joined if, inter alia, they form part of a series of offences of the same or similar character.
32. [32]
    In  R  v  Cogley^[1]  it  was  held  that  in  order  for  a  number  of offences  to  be  a  series  of  offences  of  a  similar  character,  there  needs  to  be  some nexus between the offences i.e. elements of similarity which in all the circumstances of the case enables the offences to be described as a series. 
33. [33]
    In R v Cranston^[2] a similar test was applied.   It was held that where there was a significant level of prejudice, then there should be a liberal exercise of the discretion to sever contained in s 597A of the Code. 
34. [34]
    One issue which is also raised in this case is whether the evidence of each count is admissible on the other counts.  In Pfennig v R^[3] it was said that propensity evidence which merely shows that an accused person has a bad disposition has no other relevance and should not be received into evidence.   Such evidence will be admissible where its probative value in connection with the offence charged is sufficiently high.     To  be  admitted  into  evidence,  the  evidence  of propensity  must  have  a  specific  connection  with  the  commission  of  the  offence charged,  a  connection  which  may  arise  from  the  fact  that  the  evidence  gives significant cogency to the prosecution case or some aspects of it.  The evidence will only be admissible if, when taken with the other evidence, there is no reasonable view of the evidence which is consistent with the innocence of the accused.
35. [35]
    In Phillips v R^[4], the court at [54] noted:

“The ‘admission of similar fact evidence ...  is exceptional and requires a strong degree of probative force’.   It must have ‘a really material bearing on the issues to be decided’.   It is only admissible where its probative force ‘clearly transcends its merely prejudicial effect’.    ‘[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind.’”

36. [36]
    It was further held at [56] that the similarities relied on were not merely striking, they were entirely unremarkable.  It was noted at [58]:

“There was no dispute about the absence of striking similarity, unusual features, underlying unity, system, pattern or signature.  Although none of these features is necessary for admissibility, the high probative value required in order to overcome the prejudicial effect of the evidence was not shown to exist for any other reason ...”

37. [37]
    The above principles were applied in R v MAP^[5]. It was noted at [43] that usually, to achieve the strong degree of probative force the facts need to be strikingly similar.

Disposition

38. [38]
    In reaching my decision, I have regard to the submissions made by the parties, the evidence tendered and the principles to which I have set out above.
39. [39]
    In my opinion the offending at the Prouds store at Logan Central Plaza (Counts 1 to 3) is joinable with respect to the offending at the Runaway Bay Shopping Centre (Counts 4 to 6), the offending at the Pines Shopping Centre (Counts 7 to 11) and the offending at the Toombul Shopping Centre (Counts 15 to 20).
40. [40]
    I do not consider the offending at Brookfield (Counts 12 to 14) to be joinable. I consider the circumstances concerning Brookfield are sufficiently dissimilar to the ram raids such that those offences are either not joinable or should be severed in the exercise of my discretion.
41. [41]
    Turning to the offending at Logan Central Plaza, I firstly consider the offences are of the same or similar character as the other ram raid offences and are joinable under section 567 of the Code.
42. [42]
    I also consider the evidence shows a particular modus operandi or system in which the defendant was involved such that there is no reasonable explanation for the defendant’s innocence. There are sufficient similarities between the method of execution on those counts as compared to the others that the evidence becomes cross admissible.
43. [43]
    I consider the similar fact evidence is admissible on the question of the identity of the offender/offenders with respect to the offending at Logan Central Plaza.
44. [44]
    The other reasons explanations consistent with the defendant’s innocence are excluded are:

1. I consider it particularly relevant that stolen jewellery from the Logan Central Plaza was found in the Mercedes Benz belonging to Mr Long which was searched on 25 January 2020. This is an important piece of circumstantial evidence linking the defendant with the ram raid at Logan Central Plaza.
2. Mr Long’s Mercedes was a “getaway car” for counts 15 to 20.
3. Jewellery from a number of stores was also found in the search at Calamvale on 25 January 2020, counts 4-5, 7-12, and 15-20.
4. The key found at Calamvale was the key for the Mercedes used for counts 4 to 5. 

45. [45]
    The above evidence also supports the contention that the offences were a series of offences under section 567.
46. [46]
    It is true there is some degree of prejudice by the joinder with the other counts, but I consider the similar fact evidence here to be extremely probative and far outweighs any prejudicial effect.
47. [47]
    A Judge can fashion a similar fact direction pointing out the differences in the offending to counteract any prejudice arising from the joinder.
48. [48]
    I therefore decline to exercise my discretion to sever counts 1 to 3.  

Conclusion

49. [49]
    In conclusion, I make the following orders in the exercise of my discretion:

1. I direct that Counts 12, 13 and 14 be severed from the indictment and a separate trial be held on those counts.
2. I otherwise dismiss the application.