R v Taylor CA132/06 [2006] NZCA 531; [2007] 2 NZLR 250; (2006) 23 CRNZ 325 (28 September 2006)

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ORDER PROHIBITING PUBLICATION IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

[1] The applicant, Mr Taylor, is a prison inmate. He, his wife (Ms Jameson) and Mr Manu Royal are charged jointly with various offences, on the basis that they formed a common intention to carry out and assist each other in an unlawful purpose. That unlawful purpose was the applicant’s escape from his guards while he was attending a family group conference outside prison.

[2] Mr Taylor and Ms Jameson have yet to stand trial. Mr Royal has now pleaded guilty to assisting Mr Taylor to escape from lawful custody, to carrying an airgun with criminal intent and to possession of an airgun without lawful purpose. However, he remains to be tried on two other joint charges arising out of the attempted escape.

(a) the evidence of a proposed Crown witness, Mr Joblin, be excluded; (b) his trial be severed from that of Ms Jameson.

[4] The applicant accepts that the Judge’s rulings involve the exercise of discretion. Accordingly, to succeed, the applicant must show that the Judge exercised the discretion on a wrong principle, took account of irrelevant matters, failed to take account of relevant matters or was plainly wrong in the decisions that she reached.

[5] At the preliminary hearing the applicant, who acted for himself, cross-examined witnesses on the basis that he did not know Mr Royal, that he was

not involved in any attempt to escape from lawful custody and that he was surprised when Mr Royal appeared outside the building to which he was being taken with an airgun to facilitate his escape.

[6] Following the preliminary hearing, the Crown decided that it would need evidence from Mr Joblin to show that the applicant’s stance that he did not know Mr Royal was false.

[7] Mr Joblin’s background and the nature of his proposed evidence was summarised by Goddard J as follows:

[22] In 1991 Mr Joblin was a detective in the New Zealand Police stationed at Huntly CIB. From August 1991 until March 1993 he was involved in the investigation of an armed hold-up of the Te Kauwhata branch of the Bank of New Zealand on 13 August 1991. Mr Taylor and Mr Royal were ultimately jointly charged with that aggravated robbery. During the course of the investigation Detective Joblin interviewed Mr Taylor and took a written statement from him. The Crown proposes to call Mr Joblin at the trial of the three accused for the limited purpose of establishing an association between Mr Taylor and Mr Royal which preceded the event of Mr Taylor’s alleged escape from lawful custody in Wellington on 22 March 2005. Because of matters raised at the depositions hearing the Crown considers it is necessary to establish prior connection between the two men.

[27] As noted, the sole purpose for which the Crown wish to call Mr Joblin at the forthcoming trial is simply to prove prior association (prior to 2005) between Mr Taylor and Mr Royal. As Mr La Hood correctly pointed out, Mr Joblin’s proposed brief of evidence contains other evidence, relating to prior connection between the two men, that is admissible and not dependent on the interview. In this regard, Mr Joblin is able to say that he was involved in the investigation of the armed hold up of the Te Kauwhata branch of the Bank of New Zealand in 1991, that he interviewed Mr Taylor and that Mr Taylor and Mr Royal were two of the people charged with the aggravated robbery of the bank. His proposed brief concludes with the following:

	The matter went to trial in March 1993. I was present at
	various times during this trial which ran for a six-week period
	in the Hamilton High Court. In the early part of the trial both
	Taylor and Royal sat together in the dock. At other times they
[28]	were present together in court. Notwithstanding the admissibility of both the admission	of

unquestionable prejudice to both Mr and Mrs Taylor in having information before the jury about prior criminal offending by Messrs Taylor and Royal. Mr La Hood suggested that the matter should properly be dealt with by way of a s 369 Crimes Act admission by Mr Taylor, acknowledging that he and Mr Royal know each other and the period of time over which they have known each other. I endorse Mr La Hood’s suggestion in this regard and encourage Mr Taylor to submit a suitable s 369 statement by agreement with the Crown.

[9] The Judge concluded that if a suitable s 369 statement could not be agreed, the evidence that the Crown proposed to call from Mr Joblin was admissible.

[10] Counsel for the applicant, Mr Ewen, accepted that it was legitimate for the Crown to prove a prior association between the applicant and Mr Royal. However, Mr Ewen argued that Goddard J’s ruling was too broad. He said that at least some of Mr Joblin’s proposed evidence was unfairly prejudicial in that it suggested that the applicant had in the past participated in serious criminal activity involving the use of firearms and highlighted that the applicant’s past association with Mr Royal was criminal in nature. Mr Ewen argued that it was sufficient for the Crown to prove that the applicant had confirmed in 1991 that he knew Mr Royal.

[11] As Ms Feltham pointed out, there are two issues concerning the applicant and

(b) If they did know each other, what was the extent of their relationship? [12] If the applicant seeks to argue at trial that he did not know Mr Royal or

alternatively that he knew Mr Royal but they had only a passing acquaintance, the Crown is entitled to lead evidence to the contrary. Ms Feltham accepted that parts of the statement taken by Mr Joblin from Mr Taylor in 1991 are irrelevant and go beyond what is required to show the applicant’s close association with Mr Royal. She said that that material would not be led. She submitted, however, that the precise scope of the evidence that the Crown will need to lead cannot be determined until it becomes clear exactly what stance the applicant intends to take at trial.

Accordingly, Ms Feltham argued, the matter should be left to be determined by the trial Judge.

[13] We agree. Clearly it would be sensible for the applicant and the Crown to agree an admission under s 369 of the Crimes Act 1961, which would make the proposed evidence unnecessary. If the applicant is not prepared to agree such an admission, the Crown will be entitled to lead evidence of the extent of the relationship between him and Mr Royal. This will be subject to the trial Judge’s discretion to ensure that there is no unfair prejudice to the applicant. If some of the evidence which the Crown proposes to lead is irrelevant or, while relevant, raises questions of unfair prejudice to the applicant, the trial Judge will have to consider the matter and rule on it, in the context of the trial as it has developed.

[14] Accordingly, we are not prepared to interfere with Goddard J’s ruling on this point.

[15] The applicant seeks to have his trial severed from that of Ms Jameson on two grounds:

The basis for this argument is that the evidence against Ms Jameson will include evidence of three telephone conversations between her and Detective Sergeant Westera. The applicant says that that evidence is not admissible against him, but is highly prejudicial to him.

(b) He wishes to call Ms Jameson as witness in his defence, which he could not do if they were tried together (s 5(7) of the Evidence Act 1908).

[16] The approach in cases of this kind was summarised by this Court in R v Fenton CA223/00 14 September 2000. In that case the Court stated the essential principle, namely that those alleged to have committed crimes jointly should be tried together, in the following terms:

[25] What the New Zealand cases show, and indeed most of the cases from other jurisdictions, is that there is a substantial public interest in having a joint trial of those who are said to have jointly committed a crime. The reasons are primarily to avoid the risk of inconsistent verdicts, to have all aspects of a joint enterprise considered at one and the same time, and to prevent duplication of time and effort for witnesses and the court system generally. This public interest will ordinarily outweigh the interests of an individual accused in not having inadmissible evidence before the jury. That is the usual problem in a joint trial from the accused’s perspective. When given proper directions juries are to be regarded as capable in most cases of understanding and applying the distinction between admissible and inadmissible evidence.

[17] The importance of the practice of joint trials for joint offenders was recently reaffirmed by the House of Lords in R v Hayter [2005] UKHL 6; [2005] 2 All ER 209, especially by Lord Steyn at [6]. There Lord Steyn emphasised that the primary justification for the practice does not lie in factors of convenience, avoidance of delay and cost saving, but on the perception that a just outcome is more likely to result from a joint trial than from separate trials, and that this assists in maintaining public confidence in jury trials.

[18] This Court in Fenton acknowledged the possibility of exceptions to the general practice, however. It went on to say:

[26] There may, however, be occasions when the weight of the inadmissible evidence, against that of the admissible, makes it unfair to an accused, notwithstanding the trial Judge’s directions, to expect the jury to act only on the evidence which is admissible. Similarly, there may be cases in which the difficulties in isolating the admissible from the inadmissible make it unfair to expect the jury to undertake that exercise. Those are the usual circumstances in which severance may be justified. Ultimately the question is whether the applicant for severance can demonstrate some feature of the case which clearly outweighs the ordinary approach and the basis upon which it rests, and which therefore mandates severance in the overall interests of justice. After verdict the same general considerations apply but, in order to succeed, the appellant must show that the joint trial has resulted in a miscarriage of justice.

[19] Mr Ewen accepted, correctly, that any material in Ms Jameson’s telephone conversations with Detective Sergeant Westera which was inadmissible against, but prejudicial to, the applicant would not, of itself, be sufficient to warrant severance. As this Court said in Fenton, the courts routinely face this problem in joint enterprise cases and deal with it by giving appropriate directions.

[20] However, Mr Ewen argued that when this consideration was combined with the applicant’s wish to call Ms Jameson as a defence witness, the Judge’s exercise of discretion in refusing severance was wrong in principle. Accordingly we turn to the second ground on which severance was sought.

[21] In dismissing the application for severance, Goddard J focused on the “unfair prejudice” ground, no doubt reflecting the way in which the matter was argued before her. Beyond recognising that it was a basis on which severance was sought, Goddard J did not address this second ground in her reasons.

[22] Severance can properly be granted in situations where an accused wishes to call a co-accused as a witness. This is recognised in s 5(7) of the Evidence Act, which provides:

(7) Subject to subsection (8) of this section, where any person is charged with an offence jointly with any other person (hereinafter in this section referred to as the co-accused), that person shall be competent and compellable witness for the prosecution against the co-accused, and without the consent of the co-accused, or for the defence of the co-accused, at every stage of the proceedings, if –

(a) The proceedings against the person have been stayed, or in the case of an offence punishable on summary conviction, the information against the person has been withdrawn or dismissed; or

(d) That person is being tried separately from the co-accused. (emphasis added)

[23] Counsel did not refer us to any New Zealand cases dealing with applications to sever to enable an accused to call a co-accused in his or her defence. Our own researches have turned up some authorities, however. In R v McDonald [1993]

General principles in relation to matters of severance are dealt with in Adams on Criminal Law, Ch 4.2.03. There is no need for me to repeat those principles or the accompanying references in this judgment. Counsel accept first that an accused wishing to call a co-accused as a witness may be frustrated by joint trial and that that fact may be grounds for a separate trial. Secondly, that a Judge must consider the interests of justice, not merely the interests of an accused. Thirdly, that where persons are involved in a joint or common enterprise it is normally right and proper that they should be jointly indicted and tried even though there may be some risk of prejudice. (emphasis added)

[24] In R v Gilbertson CA274/97 9 April 1998 this Court noted that Williamson J in McDonald had appeared to accept that the desire of an accused to call a co- accused in his or her defence could be a proper consideration in favour of granting severance. This Court also noted the paucity of New Zealand authority on the point, and referred to an old Canadian case which had accepted the principle.

[25] Similarly, there is a paucity of authority in Australia. In R v Harbach [1973]

6 SASR 427 at 435 a Full Court of the Supreme Court of South Australia noted that the desire of an accused to call a co-accused in his or her defence might be a proper basis for directing severance, although the Court said that it would probably be necessary for the case against the other accused to be dealt with first. Such an application was granted by Hidden J in R v Bikic [2000] NSWSC 223; (2000) 112 A Crim R 163, but his decision was overturned on appeal ((2000) [2000] NSWCCA 106; 112 A Crim R 300).

[26] The decision of the New South Wales Court of Appeal in Bikic is instructive. Sully J, delivering a judgment in which Stein JA and Kirby J concurred, first quoted the following extract from Hidden J’s judgment in the Court below:

[4] I am informed that four of his co-accused have made statements, the effect of which is that, while they were present at least at the time of the shootings, if not at the time of earlier events, Mr Bikic was not. Those four co-accused, as I have said, have provided statements which were presented to me for the purpose of this application in sealed envelopes. Senior counsel for Mr Bikic submitted that I should examine that material in the sealed envelopes to determine the genuineness of this application but that the

Crown should either have no access to them or should have access on a limited basis only: that is, on the basis that the material could not be used in the course of the trial.

[5] I do not consider it appropriate to examine the material in the sealed envelopes on either of those bases. It seems to me that, if that material is to be relied upon, it must be available to the Crown for all purposes as any other material tendered would be. That said, however, I have the assurance from the Bar table of senior counsel representing Mr Bikic that those statements reveal that each of those four co-accused is prepared to give evidence for Mr Bikic in circumstances where he himself is not placed in jeopardy, and that that evidence would tend to support Mr Bikic’s case. Obviously, what weight the evidence might have is a matter I am not in a position to determine and which need not be determined at this interlocutory stage.

For my part, I would not think it correct to deal with an application for a separate trial made in the circumstances of the present case upon any other basis than that of properly admissible evidence adduced by the applicant for the separate trial.

[21] It seems to me that there is no escaping the simple proposition that the respondent had an onus to discharge if he was to show proper cause for his being granted a separate trial. That onus was not capable of being discharged, in the circumstances of the present case, without the adducing by the respondent of credible evidence in support of his application. It cannot be correct, in my opinion, to suppose that such an onus can be discharged by the resourceful shuffling of sealed documents in a fashion designed to hobble a proper testing [by] the Crown of the contents of those documents, either on the interlocutory application itself, or at a supervening trial. The contrary approach would entail, in my opinion, the improper curtailment of the legitimate public interest to see that crime is detected, brought [to] justice, and dealt with according to law.

[22] In my respectful opinion, Hidden J made the order under appeal without having in hand evidence properly admitted and properly accepted by his Honour, being evidence capable, on a proper view of its probative value, of justifying the departure from normal practice of the joint trial of the alleged joint offenders.

[28] The issue seems also to have arisen rarely in England. In R v Richardson (1967) 51 Cr App R 381 Lawton J discussed two 19^thCentury English authorities which accepted that severance could be granted to enable an accused to call a co-accused as a defence witness (at 382-3).

[29] The most helpful summary of the relevant principles is found in the decision of the Ontario Court of Appeal in R v Savoury (2005) 200 CCC (3d) 94. In that case the two appellants, Mr Savoury and Mr Shaw, were jointly tried on three counts. The first count involved a charge of attempted murder against Mr Savoury alone. The second and third counts charged Mr Savoury and Mr Shaw jointly with armed robbery and with aggravated assault.

[30] At trial, Mr Shaw elected not to call evidence at the conclusion of the Crown’s case. Mr Savoury’s counsel then indicated that he wished to call Mr Shaw as a witness and sought severance to enable that. Mr Savoury’s counsel advised the Court that he anticipated that, if called, Mr Shaw would state that Mr Savoury had not participated in the incident leading to the charges, and stated why he thought that that evidence would be given.

[31] The trial judge refused to order severance. Mr Shaw and Mr Savoury were convicted and each appealed. Mr Savoury’s appeal was based, in part, on the trial Judge’s refusal to order severance.

[32] In the Ontario Court of Appeal, Doherty JA delivered a judgment in which the other members of the Court concurred. The Judge began his analysis of the severance point by identifying a “presumption” that persons accused of participating in a joint criminal enterprise will be tried together. The Judge went on to say:

[23] In the present case, the co-accused Shaw did not allege that he would be prejudiced by a severance order, or by a joint trial. The competing interests are, therefore, those of Savoury and the Crown. Savoury did not argue that his fair trial right would be prejudiced in the sense that at a joint trial the jury would hear evidence that was inadmissible against Savoury and that could prejudice his case. Savoury did argue, however, that his right to make full answer and defence was prejudiced by a joint trial in that it rendered his co-accused Shaw a non-compellable witness. Savoury contended that Shaw had direct exculpatory evidence to give and that Savoury could make full answer and defence only if he could compel Shaw to give that evidence.

[24] The Crown opposed severance relying on factors such as the extra costs and delay associated with separate trials, as well as the added imposition on ... the victim who already been required to testify three times.

[25] The Crown did not, and could not, rely on the danger of inconsistent verdicts described in cases like R v Suzack (2000) 141 CCC (3d) 449

(Ont.CA). In Suzack, the two co-accused blamed each other for the murder. Where “cut throat” defences are advanced, there is a real danger that if severance is granted, each accused may successfully point the finger at the other accused in their separate trials. Two acquittals based on directly contradictory versions of the relevant events hardly encourage respect for the criminal justice process. The defences advanced by Shaw and Savoury were not antagonistic and there was no suggestion that if severance were ordered, two juries would hear two very different versions of the relevant events.

[27] The trial judge correctly recognised that an accused’s desire to call his co-accused as a witness for his defence could provide the basis for a successful severance application, but that the mere assertion of a desire to call the co-accused did not make severance automatic: R v Chow (2005) 195

[28] Where an accused seeking severance contends that his right to make full answer and defence will be prejudiced unless the co-accused can be compelled to testify, two factors must be addressed by the trial judge:

• Is there a reasonable possibility that the co-accused, if made compellable by severance, would testify?

• If the co-accused would testify, is there a reasonable possibility that the co-accused’s evidence could affect the verdict in a manner favourable to the accused seeking severance?

[29] If the accused seeking severance can convince the trial judge that there is a reasonable possibility that the co-accused will testify and that his testimony could affect the verdict creating a reasonable doubt as to the accused’s guilt, the trial judge may properly grant severance. It is nonetheless open to the trial judge to exercise her discretion against severance if there are other factors of significant cogency that outweigh the potential impairment of the accused’s right to make full answer and defence occasioned by a joint trial. An accused is entitled to a fair trial, but not necessarily the ideal trial from the defence perspective: R v Cross (1996)

[33] Doherty JA was satisfied that the Judge had addressed the two issues identified at paragraph [28] of the extract quoted above, but concluded that she had erred in principle when she undertook a detailed examination of the evidence in order to assess Mr Shaw’s reliability and credibility. That was the function of the jury. Doherty JA went on to consider whether severance was warranted on a proper application of the relevant principles. He concluded that severance was required, although the decision was a finely balanced one.

(a) Severance may be granted where an accused wishes to call a co-accused to give evidence for the defence.

(b) A bare assertion by an accused that he or she wishes to call a co-accused in his or her defence is not sufficient to justify severance.

(c) Where an accused person applies for severance on the basis that he or she wishes to call a co-accused, the applicant must:

• show that there is a reasonable possibility that the co-accused will give evidence if made compellable; and

• indicate the nature of the evidence that the co-accused will give, so as to show that there is a reasonable possibility that the evidence could affect the verdict favourably to the applicant.

(d) Even then severance may not be granted if other interests are sufficient to outweigh those of the accused.

[35] Severance on this ground will rarely be granted. As Lord Steyn emphasised in Hayter, generally the maintenance of public confidence in the criminal justice process will require that parties who are alleged to have committed offences together are tried together. Results such as that which occurred in R v Moghal (1977) 65 Cr App R 56 (CA) must undermine public confidence in the administration of justice. There a person was murdered in circumstances where only the appellant, the appellant’s lover or both could have committed the killing. They were jointly charged with murder. Delivering the judgment of the Court, Scarman LJ at 58 stated the problem in graphic terms:

The woman, Sadiga Saliem, and the man Mohammed Ilias Moghal were jointly charged with the murder. The judge, upon the application of counsel for the woman, ordered separate trials. The woman was tried first: she gave evidence that she was a frightened, unwilling spectator of murder and was acquitted. The man was then tried before another jury: he gave evidence that he was the frightened, unwilling spectator of murder and was convicted. He

now appeals. The woman’s jury never saw or heard the man: the man’s jury never saw or heard the woman. Can either jury have really reached a reliable understanding of what happened, or of the relative involvement between the two? Must there not be a “lurking doubt” as to the safeness of the man’s conviction?

To this account must be added the fact that at the second trial (that of the appellant)

[36] “Cut throat” defences of the type advanced by the two accused in Moghal create serious risks for the administration of justice if separate trials are granted. While this particular problem is less likely to occur where an accused wishes to call a co-accused as part of his or her defence, there remains a significant risk that an accused will attempt to “game the system” in some way by making an application of this type. There may also be issues of fairness to the co-accused. A co-accused whom an accused wishes to call for the defence may face self-incrimination issues. In addition, there may be other co-accused persons whom the accused does not seek to call. Their interests may lie in having all those implicated before the Court at the same time.

[37] In some instances at least, the other exceptions within s 5(7) will be available to the co-accused who wishes to give evidence on behalf of a fellow accused, so that the difficulties of severance can be avoided.

[38] Despite these factors, however, we recognise that there may be cases where an accused cannot make his or her defence fairly without calling a co-accused and where the other exceptions in s 5(7) are not available for some reason. In such cases, provided that there are no other considerations (such as those referred to above) which outweigh the interests of the accused, severance may be justified.

[39] An accused seeking severance on this ground will have to provide material in support of the application addressing the matters referred to at [34](c) above. Generally this will take the form of an affidavit from the co-accused indicating the evidence that he or she will give. However, a properly framed application will not necessarily lead to an order for severance. In considering the application the Judge

should consider and weigh the full range of interests engaged in the particular case, including the public interest in joint trials and the interests of all co-accused.

[40] In the present case, although the co-accused is the applicant’s wife, she is a competent and compellable witness for the defence (s 5(2)(b) Evidence Act), provided that the conditions of s 5(7) are met. However, the applicant did not demonstrate that there was a reasonable possibility that she would give evidence, nor did he indicate what the nature of her evidence would be so as to establish that there was a reasonable possibility that the evidence could affect the verdict in his favour. Without the necessary detail, the Judge was right not to grant severance on this ground.

[41] It follows from what we have said that no case has been made out for severance in this case, whether the grounds put forward are viewed individually or in combination.

[42] We grant the applicant leave to appeal but we dismiss the appeal. The applicant will be able to make a further application for severance, with appropriate supporting material, if he still wishes to call his co-accused as a witness in his defence. That application should be determined in accordance with the principles outlined in this judgment.

Court of Appeal of New Zealand

R v Taylor CA132/06 [2006] NZCA 531; [2007] 2 NZLR 250; (2006) 23 CRNZ 325 (28 September 2006)