R v Sotheren [2001] NSWSC 182

Reported Decision : 122 A Crim R 301

New South Wales Supreme Court

CITATION : R v Sotheren [2001] NSWSC 182 FILE NUMBER(S) : SC 70044/00 HEARING DATE(S) : 12/2/2001 13/2/2001 JUDGMENT DATE : 20 March 2001

PARTIES : Regina Darren James Sotheren JUDGMENT OF : Dowd J at 1

COUNSEL : Ms M Cunneen - Crown Mr G Ikners - Accused SOLICITORS : Ms K Thompson - Crown Mr A Williams - Accused CATCHWORDS : Application to Separate Counts - Murder - Aggravated robbery - Admissibility of transactional evidence LEGISLATION CITED : Criminal Procedure Act 1986 Evidence Act 1995 De Jesus (1987) 61 ALJR 1. Hoch v The Queen (1988) 165 CLR 292. O'Leary v The King (1946) 73 CLR 566. R v Cobden (1862) 3 F & F 833 [176 ER 381]. CASES CITED : R v Herbert (1916) VLR 343. R v Rearden (1864) 4 F & F 76 [176 ER 473]. R v Voks (1823) Russ & Ry 531. [168 ER 934]. Sutton v The Queen (1983-1984) 152 CLR 528. Thompson's Case (1918) AC 221 DECISION : Application refused.

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

DOWD J

20 March 2001

70044/00 R v Darren James SOTHEREN

REASONS FOR JUDGMENT - On Application to Separate the Counts (Transcript page1, 13 February 2001)

1 DOWD J: The Crown initially proposed to present an Indictment charging the accused with the following offences at the following times:

Offence Aggravated Robbery 9:45pm 9 May 1999 at Liverpool

Murder 10:45pm 9 May 1999 at Granville Aggravated Robbery 3:35am 10 May 1999 at Parramatta Aggravated Robbery 4:30am 10 May 1999 at Harris Park Aggravated Robbery 4:45am 10 May 1999 at Parramatta Aggravated Robbery 3:20pm 10 May 1999 at Carramar 2 At the commencement of the hearing on 12 February 2001, the Crown no longer sought to proceed in this trial with the last count, being that which occurred at 3:20pm on 10 May 1999. This therefore reduced the time compass of the five remaining counts to a period of seven hours. 3 The accused, by Notice of Motion dated 31 January 2001 and filed 6 February 2001, sought the following orders: 1. The counts in the indictment against the accused be tried separately; 2. Evidence of the possession or disposition by the accused of a mobile phone allegedly owned or in the possession of the deceased prior to his death be excluded; 3. Evidence of the behaviour or demeanour of the accused prior to and after the death of the victim be excluded; 4. Evidence of telephone conversations between the accused and members of his family be excluded; and 5. Evidence relating to the cause of markings to the face of the deceased be excluded. 4 In support of the orders sought, the accused relied on the following grounds: 1. As to the order sought in 1: (a) the provisions of s64(1) of the Criminal Procedure Act 1986 apply in that the accused will be embarrassed and prejudiced in his defence if the trial continues as a joint trial; (b) the accused will be subject to impermissible prejudice should the trial continue as a joint trial containing all the counts as presently framed; and (c) evidence on one count in the indictment is not admissible on other counts in the indictment; and 2. As to 1(a), (b) and (c) above, ss135 and 137 of the Evidence Act 1995 ('the Act') apply and the evidence ought to be excluded. 5 In support of the orders sought, the accused relied on identified statements contained within the folders of Statements also relied on by the Crown. 6 As a consequence of the application to exclude evidence, a jury was not empanelled, as a jury could not be empanelled until it was clear how many counts the accused will face.