THE QUEEN v GAVIN DACOMBE [1999] NZCA 101 (24 June 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 130/99 CA 133/99

THE QUEEN

V

GAVIN DACOMBE

AND

STEPHEN JONES

Hearing:	24 June 1999 (at Auckland)
Coram:	Henry J Anderson J Robertson J
Appearances:	S Cole for Dacombe A B Fairley and C Muston for Jones W Brandon and N Leader for Harris P J Smith for Crown
Judgment:	24 June 1999
Reasons for Judgment:	8 July 1999

REASONS FOR THE judgment of the court delivered by robertson j

[1] Gavin Dacombe, Stephen Jones, and Martin Harris have been committed for trial in the High Court on an indictment in the following terms:-

1.THE CROWN SOLICITOR AT WHANGAREI charges that GAVIN DACOMBE and STEPHEN JONES on or about the 10^th day of September 1998 at Ruakaka murdered Wayne Richardson

2.THE SAID CROWN SOLICITOR further charges that MARTIN HARRIS on or about the 11^th day of September 1998 at Whangarei was an accessory after the fact to the murder of Wayne Richardson

[2] In determining a number of pre-trial applications, the High Court refused applications by all accused that each be tried separately from the others. Mr Dacombe and Mr Jones now seek leave pursuant to s 379A(d) of the Crimes Act 1961 to appeal against the refusal to order separate trials. They no longer pursue a separate trial for each of them but they submit that the Judge was in error in refusing to sever the trial of Mr Harris from their joint trial.In effect, therefore, they seek leave to appeal the Judge's refusal to order that Counts 1 and 2 be tried separately.

[3] The essential ground of appeal is that justice requires such severance because:-

[a] There is an unacceptable risk that a videotaped statement made by Mr Harris and admissible solely against him but containing material highly prejudicial to both of the applicants, will be applied, consciously or unconsciously, by the jury when considering the case against each applicant; and

[b] The nature of that material is such that the applicants will be subjected to unfair pressure at trial to testify in order practically to counter it or its effect.

[4] Mr Harris supported the Crown's opposition to the application for leave, and because his interests were capable of being affected by the outcome we heard submissions from his counsel.Whilst Mr Fairley and Mr Cole questioned Mr Harris' standing on the application, he plainly had a sufficiency of interest to require, as a matter of justice, that his counsel be heard.

[5] Because the High Court trial was imminent and we were satisfied that the application for leave should be granted and the appeal allowed, we announced that result at the conclusion of the hearing with reasons in writing to be provided, as they now are.

[6] The Crown case against Mr Dacombe and Mr Jones is that they were jointly involved in an unlawful enterprise, whereby having gone with the deceased, Wayne Richardson, to an isolated area near Ruakaka about 30 kilometres from Whangarei, two knives were used to inflict on the deceased at least 16 stab wounds in addition to defensive type wounds which were found on the deceased's hands.There was a potentially fatal stab wound to the right upper chest but the medical evidence discloses the death was caused by the severing of the windpipe and the great veins on both sides of the neck.Two knives were later found in different places.

[7] The Crown's case is that the stabbing and the cutting of the throat of the deceased occurred in his car.His body was then thrown up onto a bank.

[8] Crown evidence is available that a passing motorist noticed three persons in or near the deceased's car at the site where his body was later found.One was standing outside and the other two were in the back of the car, one slumped forward with blood down his jersey.

[9] Subsequently the deceased's car was pushed up the road for approximately one kilometre where assistance was sought to start the car from a local residence.

[10] At about 11 p.m. that night there was an explosion and fire in the car which had belonged to the deceased near Anzac Road.A blue Bedford campervan similar to that owned by the accused Mr Dacombe was seen leaving the area shortly after the explosion.Mr Dacombe was known to be an acquaintance of the deceased.

[11] The Crown alleges that later that night Mr Dacombe and Mr Jones went to the home of Mr Harris, stayed at his property and the next morning burned clothing in an incinerator with the knowledge and approval of Mr Harris.The disposal of the clothing by Mr Dacombe and Mr Jones with the assistance of Mr Harris is said by the Crown to be an important part of the case indicating that the two were acting in concert in their dealings with and the killing of the deceased, the burning of his car and the disposal of incriminating material. The alleged assistance of Mr Harris is the basis of the second count in the indictment, which he alone faces.

[12] It appears from the conduct of the pre-trial hearing that Mr Jones would now say that Mr Dacombe was responsible for the death of the deceased and that his own involvement was only after the event.

[13] Mr Jones' position appears to be that although he was present at the death scene, and although he knew that Mr Dacombe was going to "waste Mr Richardson", he did not know Mr Dacombe was going to kill him.

[14] All of the accused gave videotaped interviews to the police.In his interview Mr Harris states that the other two accused arrived at the house he shares with his girlfriend on the night of the killing.He describes how when Mr Dacombe was asleep Mr Jones confessed, in some detail, to the killing of the victim.The terms of the alleged confession seriously inculpate both Mr Dacombe and Mr Jones.Although admissible against neither, Mr Harris' statement provides a graphic and expedient answer to the conflicting explanations and cross allegations of blame in their respective video statements and potential evidence.Counsel for the applicants emphasise this in their submissions.

[15] Mr Cole for Mr Dacombe undertook an analysis of the decision of the full Court of the Supreme Court of Victoria in R v Demirok [1976] VicRp 19; [1976] VR 244 and submitted that by reference to that there was substantial prejudice to his client from a joint trial with Mr Harris.He submitted that the interrelationship between the various statements and the extent to which they can impinge one upon the other was such that any direction would be:

... so unreal and contrived not to say convoluted, that a Judge might be excused from attempting to give it, or a jury from failing to understand it still less for failing to act upon it ...

(See R v Jones & Waghorn (1991) 55 A Crim R 159)

[16] He submitted that if Mr Harris does not give evidence at the trial then the allegations which he makes against the others will not be subject to testing.He contended that the jury will not be able to put aside the effect of Mr Harris' out of Court statement in determining what is proved against Mr Jones and Mr Dacombe.

[17] In summary he submitted that the prejudice to the two accused on the serious charge of murder outweighed the administrative cost and inconvenience of running two trials if severance were granted.He noted that there are only two civilian Crown witnesses who are non professionals and that the issues are not sensitive or difficult for the witnesses.Accordingly he argued that the balance favours severance being granted.

[18] The thrust of the argument from Mr Fairley for Mr Jones was in like form and relied substantially on the same authorities.

[19] He submitted in particular that the nature of a defence where each accused may blame the other makes the alleged confession of Mr Jones to Mr Harris (notwithstanding its inadmissibility against either applicant) even more damning in its practical effect.

[20] He characterised Mr Harris' video statement as highly prejudicial in four particular respects.First, by reason of its graphic detail; second, because of its timing, being so proximate to the death of the deceased; third, because of the friendly relationship between Mr Jones and Mr Harris; and fourth, because of its gratuitous nature.He submitted that no direction or directions by a Judge could obviate the serious risk that the jury would invoke Mr Harris' video when considering the case against the other two accused.And, as mentioned earlier in this judgment, he emphasised the undue impact of Mr Harris' statement on his client's election at trial.This propensity merges with the concerns about undue prejudice in the minds of the jury.

[21] Accordingly he argued that a direction could not be enough to overcome the prejudice.As there was such a risk the Court should adopt a course of action which avoided the risk when there were no countervailing factors to outweigh it.

[22] Ms Brandon for Mr Harris actively supported the position reached by the Judge in the Court below and which was also supported by the Crown.It was not entirely clear to us the particular advantage which Mr Harris perceived as arising from his having a joint trial.In essence it was said that the jury would not have a proper perspective on the part which Mr Harris had played and the extent of his involvement if his acts and omissions were not viewed within the total context.

[23] Mr Smith's submissions were that conventional jury directions would be sufficient to ensure that the jury were constrained to consider only admissible evidence against each accused and that there was no real danger of improper prejudice arising.

[24] The matter had been set down for a two week trial and it was submitted that even without Mr Harris in the hearing, the case would take seven or eight days and that a trial for Mr Harris alone could be as short as two or three days.In other words, there is no appreciable issue of duplicated resources. A trial without Mr Harris will involve all the present witnesses apart from the police officer who interviewed Mr Harris.We were satisfied there need be no undue repetition of evidence in the trial of Mr Harris.

[25] We are persuaded that there is much force in Mr Fairley's argument that it would be virtually impossible to deflect the jury away from considering the material which would be included if Mr Harris was tried at the same time as to what he told a police officer in a video interview about confessions made by Mr Jones to him.We were less persuaded as to the effect upon Mr Dacombe, although there is undoubtedly some potential for prejudice.

[26] We were also persuaded of the cogency of the argument that no matter what directions the trial Judge gave, the jury having heard what Mr Harris had reported would almost inevitably force Mr Jones into having to give evidence before the jury.Considering the extent to which the case against Mr Harris could be dealt with in a compact way and as a separate matter, we were of the view that such prejudicial effect is a matter of substantial importance and where it could reasonably be avoided such a step should be taken.

[27] In the result we were satisfied that a joint trial, involving the videotaped statement of Mr Harris, carries a serious risk of unfairness in the two essential respects identified at the outset of these reasons for judgment, which considerations of efficiency and convenience cannot outweigh.

[28] We are, of course, conscious that this is an application for leave to appeal against a ruling by an experienced trial Judge who correctly identified the essential principle that severance can be ordered whenever it would be conducive to the ends of justice.As the Judge observed, potential prejudice to an accused must be balanced against the desirability of determining together interrelated issues, the convenience of witnesses, and expedition in the Court's processes.He acknowledged the principle, confirmed in R v Webb & Thompson [1953] NZLR 595 and R v Brown (1987) 3 CRNZ 132, that where the persuasive value of inadmissible evidence is out of proportion to the probative value of admissible evidence, severance may avoid injustice to one or more co-accused.In such circumstances an appellate Court will be reticent to differ from the first instance ruling, but ultimately we were persuaded that we should do so.The argument proceeded before us on a different and more tenable basis than that advanced before the High Court.There, initially at least, three separate trials were sought, whereas now Mr Dacombe and Mr Jones acknowledge the orthodoxy of their being tried together and have focused their attention on the prejudice of their being tried together with Mr Harris.

[29] For the above reasons we granted leave to appeal, allowed the appeals of Mr Dacombe and Mr Jones, and ordered that Mr Harris be tried separately from the joint trial of Mr Dacombe and Mr Jones.

Solicitors

L J Postlewaight, Whangarei, for Appellant Dacombe

Thomson Wilson, Whangarei, for Appellant Jones

Gerard Winter Associates, Whangarei, for Appellant Harris

Crown Solicitor, Whangarei, for Crown