R v G CA12/04 [2004] NZCA 427 (24 June 2004)

Last Updated: 30 December 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA12/04

THE QUEEN

v

[S E G]

Hearing: 23 June 2004

Coram: Anderson P Paterson J Doogue J

Appearances: W M Johnson for Appellant
B J Horsley for Crown Judgment: 24 June 2004

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1] [S E G] applies for leave to appeal against a pre-trial ruling of Judge Mackintosh in the District Court at Wellington, refusing an application for severance of trials.

R V [S E G] CA CA12/04 [24 June 2004]

Background

[2] The applicant is charged with receiving stolen property on 4 September 2002. In the same indictment there is a count for a burglary on the same day by the applicant’s female partner [A-L J].

[3] The Crown case is that [A-L J] and two other young women carried out the burglary. A television set, a video player, a PlayStation and games were stolen. The two other young women have acknowledged their guilt in respect of the burglaries. The Crown has laid an indictment charging [A-L J] with the burglary and the applicant with receiving the PlayStation and five games.

[4] The Crown case is: [A-L J] kept the television that was stolen. The PlayStation and games were sold by one of the other young women to the applicant for $40. That young woman sold the video cassette player to [A-L J].

[5] Approximately a month later the owner of the property learned that it was at the applicant’s address. The owner and her partner went there to endeavour to get the items stolen back. They spoke to [A-L J], who returned the television and video cassette recorder. The applicant was present. The PlayStation was not returned.

[6] A complaint was made to the Police. A constable went to the applicant’s address. He saw the accused carrying a bag with a PlayStation and games in it. Subsequently there was a conversation between them, the content of which is disputed. There is no dispute, however, that the applicant was in possession of the property.

[7] The issue at trial so far as the applicant is concerned is whether at the time the PlayStation and games came into the possession of the applicant he knew that they were stolen or dishonestly obtained.
[8] The evidence at the trial will include that of one of the other young women who has pleaded guilty to the burglary. Her evidence is relevant to both the burglary and receiving charges within the indictment. She will say that the applicant, prior to the burglary being carried out, knew that it was going to be committed and that he indicated that his car could be used. She will further say there were discussions as to whether or not he would get anything as a result of the burglary and he indicated that he wanted the PlayStation. The applicant challenges her evidence in various ways but cannot deny it is relevant to his trial.

[9] The District Court Judge having reviewed the central evidence and the submissions for the parties found that she did not think it conducive to the ends of justice to order that there be separate trials of the applicant and Ms [A-L J]. The Judge found there was evidence that was relevant to both of them to be given by the witnesses and that both incidents were closely connected in time and circumstance. She expressed the view that the trial Judge was quite capable of giving appropriate directions to ensure that each accused has a fair trial and that neither of them will be unduly prejudiced by the evidence that relates to the other. Accordingly she was not prepared to make an order pursuant to s340 Crimes Act 1961 severing the two trials.

Applicant’s submissions

[10] The applicant submits that he will be unduly prejudiced if the count against Ms [A-L J] of burglary is heard at the same time as the count against him of receiving. This is because on the face of it the applicant has received property from Ms [A-L J], which she has admitted she knew was stolen at the time. She does not directly implicate the applicant but her admissions will give rise to the possibility that they will be used against the applicant although they have no probative value to the case against him. That will be particularly so when she was his female partner at the time. Therefore it is submitted that no matter how strong a direction is given by the trial Judge Ms [A-L J]’ admissions could have a prejudicial effect which would outweigh the possibility of a fair trial for the applicant.

Respondent’s submissions

[11] The Crown supports the position adopted by the District Court Judge. It says the counts are related in time and circumstance because both accounts arise effectively out of the same incident. The Crown submits that it would be totally artificial to have two separate trials. The witnesses involved are to a large extent common to both trials. Ms [A-L J] denies the burglary.

[12] It is emphasised by the Crown that the main purpose of s340 Crimes Act 1961 dealing with the joinder of counts is to avoid multiplicity of indictments in trial by enabling all charges arising out of the same facts be included in the one indictment. This is so, even if the onus of proof for some of the offences differs from that for others.

Discussion

[13] The submissions for the applicant do not satisfy us that the Judge was clearly wrong in her assessment of the situation and in the exercise of her discretion refusing severance. Quite the contrary. On the material before her and before us it would be artificial for separate trials to be ordered when to a large extent the evidence relevant to one count is relevant to the other notwithstanding there are different crimes alleged. The trials of the counts should be heard together unless it is clear that the prejudice to one of the accused is quite disproportionate to the obvious advantages of the trials being heard together.

[14] We have no doubt that the Judge was correct in finding as she did that these trials should be heard together. The jury is entitled to see the matter in the round. The offences alleged are different even although interrelated. Given the directions that will be made by the trial Judge there is little likelihood of the jury treating any admission of Ms [A-L J] as in any way binding on the applicant. Nor is there any likelihood of other prejudice to the applicant in having both charges heard together in one trial. In truth there was no substantial argument for severance in the circumstances of this case.

Decision

[15] The application for leave to appeal is dismissed.

Solicitors

Crown Law Office, Wellington