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. 7 In answer to a question from the bench, the Crown indicated that all of the material in each of the counts was relied on in support of the case against the accused in respect of each other count. 8 This means that in the evidence, even if the Crown only proceeded on one of the counts, be it the murder or one of the aggravated robberies, the Crown would seek to rely on that evidence not as evidence of tendency in terms of s97 of the Evidence Act 1995, but under the principles enunciated by the High Court in O'Leary v The King (1946) 73 CLR 566, as transactional evidence. That is, evidence of conduct at or about the same time of the offence both as to other similar conduct itself and as to the accused's state of mind in relation to that conduct. 9 The Crown reserved, pending decision on this application as to the evidence being admissible as transactional evidence, the question of whether application will be made to introduce the evidence on the basis of either tendency or coincidence under s97 of the Act. 10 If the evidence is admissible as transactional evidence in respect of each of the five counts, in addition to the specific evidence relating to that count, then there is little merit in the application by the accused to separate the trial of each of the counts from each other, since the jury will hear evidence of the other incidents in any event, if only one of the five counts in the indictment were to proceed. 11 The other matter under challenge by the accused was the use of a particular test called 'Profiler Plus' in obtaining DNA evidence, to be introduced in support of the charges against the accused, and relied on by the Crown. This matter was adjourned pending clarification of the basis upon which access could be made to the particular process of the owner of the Profiler Plus test to enable checking of that evidence. It was also necessary for counsel to obtain Legal Aid assistance for that process. This matter has not yet been argued, but will need to be resolved before the matter proceeds. This will be a matter for the accused to endeavour to apply to adjourn the proceedings. Facts 12 The facts alleged might shortly be stated as follows. At about 9:45pm on the night of 9 May 1999, Francis McLean, aged fifty-five, was walking through Bigge Park, Liverpool. McLean was attacked from behind by the accused, and struck violently about the head and face numerous times. His umbrella was taken, and was struck with it. McLean lost his wallet, containing ten dollars ($10) in cash. This money has not been recovered. McLean suffered a fractured nose, facial lacerations and bruising. The laceration to his right eye caused heavy bleeding, and as a result of the alleged actions of the accused, bled onto the accused's thigh area. 13 McLean described the accused as wearing a backpack and blue denim jeans. A pair of blue denim jeans was later seized from the accused's property, where blood was found to be present in the thigh area. McLean's DNA found on the jeans is expected to be found in fewer than one in ten thousand million individuals (10,000,000,000) in the general population. 14 The next eastbound train from Liverpool Railway Station departed at 10:15pm, and arrived at Granville Railway Station at 10:33pm. There is evidence by way of security video of the accused leaving the train station at Granville, exiting on the side on which Cowper Street is located. He was wearing joggers, black track pants, a black bumbag, a light coloured T - shirt with the brand 'Tommy Hilfiger' printed on the front, and a backpack. 15 The Crown case is that the accused walked a short distance to Cowper Street, where Ho Chung Sham, aged forty-five, had arrived by car, to collect his wife from work at a massage parlour, having telephoned her from home at 10:10pm. 16 Outside the massage parlour, Sham was attacked about the head, causing him to fall to the roadway. While on the ground, the accused stamped on Sham's face, and took his watch and wallet. The wallet contained some $1,900. Sham was later found unconscious. No witness to the attack has come forward. The injuries caused brain injury and the death of Ho Chung Sham three days later. 17 The subject wallet from which some $1,000 had been removed, was secreted in an alcove, and found the following day. The alcove was next to the Cardinal Freeman Refuge, where the accused had been staying until 8 May 1999. 18 At 10:53pm, the accused crossed the concourse area of Granville Railway Station from the site where the offence occurred. The accused was seen to enter Parramatta Leagues Club in a taxi wearing black trackpants, joggers and a light coloured T - shirt, beneath a multi - coloured long sleeved shirt, and a backpack. He was seen to leave the foyer for several minutes, and returned having changed the trackpants for blue denim jeans. He left the club as depicted in the video, at 2:27am. 19 A witness, Janet Skaf, who worked at a brothel in Valentine Street, Parramatta, saw a person wearing trackpants, runners, a white T - shirt with some sort of motif on the front, a check flannelette shirt and a backpack, this being about between 3:00am and 3:30am. She was unable to identify the accused in a array of photographs, but said that some time later she saw the same person or a person who looked identical to the accused, but for a backpack. 20 Shortly after 3:30am, a Mr Joseph Bruni, came into the brothel and complained of being attacked violently about the head by the accused. Bruni said that he told the accused that he had no money, as he was going to pay at the brothel by EFTPOS. 21 Some four hundred metres away, at Harris Park near Parramatta Railway Station, near the other side of the line, a Mr Sawnani, at 4:28am, was walking past a dating agency, when he was attacked and beaten savagely around the head. Mr Sawnani's wallet was removed, and the twenty dollars ($20) that he had in it was taken. Mr Sawnani screamed very loudly, and witnesses saw his assailant as wearing dark trackpants and a white or cream T - shirt, having short dark hair, and running towards Parramatta. Mr Sawnani was able to identify the accused on the video array, not knowing which number was the accused's, but said that he was one hundred percent certain that it was the photograph of the accused. 22 At the time of the attack on Mr Bruni, a Mr Zheng arrived for work in Valentine Street in Parramatta below the brothel, where he owned and ran a café. He was attacked on alighting from his car, and was struck violently on the head. Mr Zheng's trouser pockets and jacket were emptied, where eight hundred dollars ($800) in cash was taken. 23 The accused had been captured on video passing between the Commercial Hotel on the busier side of Parramatta at 4:35am, the attack on Mr Sawnani having occurred at 4:28am some few metres down the road. 24 The Crown then relied on telephone records of Mr Sham, and were able to work out that his phone had been used at 10:21am on the morning of 10 May 1999, with a SIM card in the name of Shane Baxter. The telephone records identify the SIM card and the handset used. Mr Baxter has given a statement saying that he had bought the SIM card for the accused. 25 The Crown also relied on the evidence from a police expert on footprints who said that the Adidas running shoes seized from the accused, which he was seen to be wearing on the night, would have resulted in the unusual markings on the face of the deceased. Submissions 26 The Crown submitted that it relied on the movements of the accused and the various street video portrayals and descriptions which linked him with each of the incidents. The timetables of the trains and the short distances, particularly between the Harris Park and Parramatta offences, and the clothing that was described, and the evidence of the use of the accused's telephone SIM card and that the footprint marks on the deceased's face resembled the shoes found with the accused. 27 The Crown's submissions are that the accused was linked to the offences by being photographed by the security cameras within a few minutes of the assaults, and that the clothing seized is precisely what the accused was wearing in the videos. The Crown seeks to characterise the evidence of the assaults as transactional evidence, and that a tribunal of fact can infer the accused's state of mind from those acts. 28 The submission of the Crown, in short, is that this case classically comes within O'Leary v The King (1946) 73 CLR 566, and that the evidence should thus be admitted. 29 The Crown submitted that there is neither a basis for the exercise of the discretion contained in s135 of the Act, or the balancing judgement which has to be formed in s137 of the Act, to exclude the evidence. 30 The accused is seeking to separate the counts, and relied on the High Court's examination of authorities in De Jesus (1987) 61 ALJR 1, and Sutton v The Queen (1983-1984) 152 CLR 528, per Brennan J, as he then was, which outlined the risks involved in joining separate counts in a criminal trial. At pages 541-542, His Honour said: "When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted". This statement is a general statement not relying on sexual issues. 31 Counsel for the accused also referred the court to Hoch v The Queen (1988) 165 CLR 292, which largely deals with the court's need to rebut any inference of concoction where there are several complaints in relation to sexual offences involving complainants who may be able and have a reason to concoct evidence. 32 It was further submitted on behalf of the accused that the evidence of the Crown constitutes a weak murder case, and that a series of other offences involving variable descriptions ought not to be relied on, and that it is an area fraught with difficulties, and the discretion under ss135 or 137 of the Act should be used to reject the evidence. 33 It is also contended on behalf of the accused that it is a long bow to include all of these matters together, having occurred over a considerable period of time. It is suggested that O'Leary v The King involved one person in a drunken orgy, and that the present case is distinguishable by the fact that there were a number of matters involving a series of different locations some distance apart. 34 It was argued on behalf of the accused that the Crown was bringing a weak murder case in which identification descriptions varied wildly in terms of heights, complexion, hair, and it was argued that the evidence should not be admitted in support of each count as transactional evidence, and that in any event, the prejudice involved is such that ss135 and 137 of the Act should preclude the admission of the evidence. 35 It was conceded, on behalf of the accused, that it is clear that the principle in O'Leary v The King survived the commencement of the Act as it clearly does. 36 It was further submitted on behalf of the accused, that O'Leary v The King involved someone in an easily identifiable single transaction in a short space of time, but in the present case it involved a significant geographic and chronological spread. It was argued that the incidents and the assaults were isolated incidents that do not bear any striking similarity. 37 Mr Ikners argued on behalf of the accused that the descriptions given by the various witnesses to the various incidents and the variations in their evidence are so disparate that the evidence ought not to be treated as part of the same transaction, and is thus inadmissible. 38 The High Court, in O'Leary v The King, in a series of separate judgments on a special leave application, was dealing with a case involving a timber camp where a number of employees, including the applicant, took part in a drunken orgy in a remote location. The following day a person was found dead, having been struck on the head eight or nine times with a bottle, where he had later been set on fire. Shortly before the discovery of the body, the applicant had a bottle in his possession. The applicant was found guilty of the murder. 39 At the trial, evidence was admitted that the applicant at various times during the orgy had violently assaulted other employees. Some of these assaults were unprovoked, and all consisted of brutal blows to the head. During the day of the orgy the applicant had also aimed a blow at the deceased. 40 The High Court, although conceding that the trial judge had misdirected the jury that they could consider the challenged evidence of the disposition of the accused "as a man who had no care for the ordinary feelings of pity or humanity which restrained ordinary people", that the evidence was nonetheless admissible. 41 The court further held, by a majority, that the misdirection was not such as to warrant special leave. Latham CJ held that to admit the evidence as similar fact would be an unwarranted extension of the rule where such evidence could be admitted, but held at page 575: "Evidence that the accused had been drinking during the day and evening of 6th July and early hours of 7th July was admissible to show the probability that he would attack another man in a fit of drunken fury. Evidence that, on the day and the night of the killing of Ballard, he actually attacked particular fellow employees without cause is also evidence to show the probability that he would attack some other fellow employee. Such evidence puts the act of attacking Ballard in a setting which makes it possible for the jury to obtain a real appreciation of the events of the day and the night. It is evidence of "facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued" - per Dixon J in Martin v Osborne (1936) 55 CLR 367, at 375. Upon this ground I am of the opinion that the evidence was admissible". 42 Rich J held the evidence admissible in the following terms at page 576: "I would not put the admissibility on the analogy to Thompson's Case (1918) AC 221, but rather on the ground that it forms part of the circumstances of the crime, including the drunken condition of the prisoner, how he reached that condition, how long it continued and how, while in that condition, he was behaving. His violence, the fact that he exhibited this violence on slight or no provocation, and all the circumstances, form inseparable features of a transaction consisting of connected events". 43 Dixon J (as he then was), held at pages 577-578: "In my opinion the evidence objected to was admissible, because, from the time on Saturday 6th July when the prisoner and the party with him came under the influence of drink right up to the conclusion of the scene in the early hours of the following Sunday morning in the presence of the deceased's body lying in front of the huts, a connected series of events occurred which should be considered as one transaction. The part which the prisoner took in the drunken orgy which, as the facts suggest, culminated in the fatal attack upon the deceased man would appear to me to be relevant to the question whether the prisoner was the assailant and, if so, whether he was at the time capable of forming, and did form, the intention which would make his crime murder. The evidence disclosed that, under the influence of beer and wine he had drunk and continued to drink, he engaged in repeated acts of violence which might be regarded as amounting to a connected course of conduct. Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's generally violent and hostile conduct might well serve to explain his mind and attitude and, therefore, to implicate him in the resulting homicide. Examples of the admission of evidence of connected incidents of one transaction will be found in R v Cobden (1862) 3 F & F 833 [176 ER 381]; R v Voks (1823) Russ & Ry 531 at p533 [168 ER 934 at p935]; R v Rearden (1864) 4 F & F 76 [176 ER 473]; and as to this case see per Cussen J in R v Herbert (1916) VLR 343 at p349. In my opinion, for the reasons given, evidence of his conduct was admissible for the purpose stated". 44 Williams J held at pages 581-582: "It is not merely evidence that the appellant was a violent man who was likely to commit the crime, in which case it would have been inadmissible. It is evidence of certain significant incidents which took place in a series of connected occurrences which commenced with the drunken orgy on the sixth of July and concluded with Ballard's death in the early morning of the seventh. The murder occurred in an isolated camp, so that it is highly probable that it was committed by one of the inhabitants. The fact that the appellant alone of all of these inhabitants was in the course of the orgy committing acts of violence and threatening violence must have in these circumstances probative value as making it logically probable that he was the man who assaulted Ballard". 45 The common thread in each of the judgments of the majority is that, to be admissible, the facts and circumstances must make intelligible the whole course of conduct pursued, and that the ingredient parts of the transaction can then form part of the chain of facts, which could be regarded as a connected course of conduct. 46 In the present case, the similarity of the pattern of events occurring at slightly geographically separate locations, but connected by the use of a train which shortly permitted movement from one location to another were of a similar nature, and a similar pattern. 47 The characteristics of the assaults were that they all took place at night near a commercial centre involving victims of small stature, and involving a blow to the face. In most cases, the assaults occurred near massage parlours and thus involving men who are slightly less likely to report the assault. 48 The seeking after money being slaked by the success of the large amount secured in one of those bashings which permit a break in the pattern of assaults does not in my view interrupt the nature of the conduct of the accused over the period of time of the assaults relied on by the Crown. 49 In my view, the events in these proceedings constitute a connected transaction of events, and for that reason, the evidence of each assault is admitted in respect of each of the others. 50 The evidence being admissible, I cannot see anything that has been submitted that has any element of prejudice that would make the evidence unfairly prejudicial. Prejudicial does not mean adverse to the accused, it connotes something which improperly distorts the fair evaluation of the evidence. In any event, there is nothing in the evidence which is of high probative value in the case of the Crown in respect of each of the counts in the nature of the circumstantial case which the Crown seeks to prove, that on what has been put before me could outweigh that probative value, and thus the evidence ought not to be excluded under ss135 or 137 of the Act. 51 In relation to the evidence which is admissible as transactional evidence, there is no element of prejudice that has been shown, and obviously no unfair prejudice. The evidence is clearly of high probative value in terms of the case being laid out by the Crown, and therefore, there is no basis for excluding the evidence under ss135 or 137 of the Act. 52 Evidence as to the possession or disposition by the accused of a mobile phone, the property of the deceased prior to death, is evidence which has probative value, and as part of the Crown case is clearly admissible and has no characteristic of unfair prejudice, and thus ought not to be excluded. 53 Similarly, evidence of the behaviour or demeanour of the accused prior to the death of the victim ought similarly not to be excused. I have some difficulty, as it was not argued, as to what conduct after the death of the victim should be excluded. 54 Evidence of telephone conversations between the accused and members of his family, and evidence relating to the cause of markings to the face of the deceased, is clearly admissible on the case of the Crown, and has probative value. No element of prejudice has been shown to warrant the exclusion of the evidence, and thus the evidence should not be excluded. 55 The application therefore, on each count, is rejected. oOo Last Modified: 04/03/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.