New South Wales Court of Criminal Appeal CITATION : R v Bowman [2001] NSWCCA 449 FILE NUMBER(S) : CCA 60625/01; 60626/01 HEARING DATE(S) : 06/11/2001 JUDGMENT DATE : 28 November 2001 Director of Public Prosecutions (appellant) PARTIES : Bradley Russell Bowman (respondent) Paul Nathan Bowman (respondent) JUDGMENT OF : Beazley JA at 1; Hulme J at 2; Hidden J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0970 LOWER COURT JUDICIAL Sorby DCJ OFFICER : R Hulme (Crown) COUNSEL : M Johnston (Bradley Bowman) S Odgers SC (Paul Bowman) SOLICITORS : Solicitor for Public Prosecutions (appellant) Galloways (respondent) CATCHWORDS : Criminal law - Appeal by Crown under s5F Criminal Appeal Act - order for separate trials - evidence of statements by one accused prejudicial to another accused - whether evidence admissible. LEGISLATION CITED : Criminal Appeal Act, 1912 CASES CITED: R v Middis & Ors (Hunt J, NSWSC 27.3.91) R v Fernando [1999] NSWCCA 66 DECISION : Appeal allowed, order for separate trials set aside. IN THE COURT OF CRIMINAL APPEAL 60625/2001 60626/2001 BEAZLEY JA HULME J HIDDEN J Wednesday 28 November 2001 Regina v Bradley Russell Bowman Regina v Paul Nathan Bowman Judgment 1 BEAZLEY JA: I agree with Hidden J. 2 HULME J: I agree with Hidden J. 3 HIDDEN J: The respondents, Paul and Bradley Bowman, are brothers. They are awaiting trial in the District Court upon a charge, brought against them jointly, of supplying a large commercial quantity of pseudoephedrine. On 10 September 2001 a judge of the District Court ordered that they be tried separately. The Director of Public Prosecutions has appealed against that decision under s5F of the Criminal Appeal Act 1912, and the trial has been stood over for call-over at the end of this month. 4 Put shortly, it is the Crown case that in the early hours of 2 February 2000 in the Gymea area police searched a car owned and driven by Paul Bowman, in which Bradley Bowman was a passenger. In the boot and in the interior of the car police found a quantity of white powder, which proved to be pseudoephedrine, together with items of laboratory equipment. Pseudoephedrine is an ingredient in the manufacture of methylamphetamine. The fingerprints of each respondent were on some of these articles. 5 The respondents were arrested. Paul Bowman declined to be interviewed. However, Bradley Bowman took part in an electronically recorded interview in which he denied knowledge of the drug or of any of the other items. In the course of the interview, he was asked whether he was affiliated with any "motor cycle gang", in particular, the club known as the "Nomads". He said that he was not. He was asked whether Paul Bowman was affiliated with the Nomads and he said that he thought he was. Asked whether Paul Bowman was a member of that club, he replied, "I don't know because I don't really talk about it … he just does his own thing." 6 The application for separate trials was argued on the day that the matter was listed for trial. The Crown and each of the respondents were represented by counsel other than those who appeared in this Court. As it happens, there had been newspaper publicity the day before about the involvement of bikers' clubs in the manufacture and distribution of amphetamines, the Nomads being named as one of them. Counsel for Paul Bowman sought a separate trial on the basis that the answers in Bradley Bowman's interview to which I have referred, together with that recent publicity, would cause his client impermissible prejudice in a joint trial. He also relied upon the fact that Bradley Bowman intended to raise his good character, which Paul Bowman was not able to do, a matter which had been foreshadowed in a notice of motion for a separate trial and an affidavit in support which had been filed on behalf of Paul Bowman a few days earlier. Counsel for Bradley Bowman supported the application, indicating that his client was prepared to proceed to trial immediately. 7 In the course of argument, the Crown Prosecutor said that it was not the Crown's intention to rely on the relevant part of Bradley Bowman's interview "as part of its case against Mr Bowman". It is not entirely clear to which of the respondents he was then referring. Obviously, the evidence was not admissible against Paul Bowman and, presumably, he was expressing his intention not to use it against Bradley Bowman. However that may be, counsel for Bradley Bowman responded that he wished to rely upon it in his client's case. The argument appears then to have continued upon the basis that the evidence would be before the jury in a joint trial. 8 Counsel for Bradley Bowman confirmed that his client's case was that he had no knowledge of the drug and the other articles. He submitted that evidence that Paul Bowman was associated with the Nomads might lead the jury to conclude that, of the two men, he was the more likely to have been in possession of them. He sought a separate trial on the basis also that his client would be prejudiced by a joint trial because, he argued, the Crown case against Bradley Bowman was weaker than that against Paul Bowman: cf R v Middis (Hunt J, unreported NSWSC 27 March 1991). 9 The Crown prosecutor opposed the applications, submitting that there was no significant difference in the weight of the evidence against the two respondents and that any prejudice to Paul Bowman in a joint trial, on either of the bases contended for by his counsel, could be cured by appropriate directions to the jury. 10 It appears that no one raised the possibility of adjourning the joint trial until the effect of the publicity of the previous day had dissipated. Accordingly, the matter was argued upon the bases that the trial of one or both of the respondents would proceed that day and, as I have said, that the relevant part of Bradley Bowman's recorded interview would be in evidence. It is not surprising, then, that his Honour ruled as he did. He concluded that there was "a real risk of prejudice" to Paul Bowman if the joint trial should proceed, given the offending material in Bradley Bowman's interview and the newspaper article. He directed that the two men be tried separately and that Bradley Bowman's trial should proceed immediately. However, he acceded to an application by the Crown prosecutor to adjourn both trials after he was informed that the Crown wished to bring the present appeal. 11 Given his approach to the matter, it was not necessary for his Honour to consider the prejudice to Paul Bowman arising from the fact that Bradley Bowman would raise his character, or the proposition advanced by counsel for Bradley Bowman that the Crown case against his client was weaker than that against Paul Bowman. On appeal, it was not suggested that the order for separate trials should be affirmed on either of those bases. Argument for the respondents was confined to the reasons which his Honour gave. 12 Contrary to the position adopted by his predecessor, the Crown prosecutor in this Court submitted that what Bradley Bowman had to say in his interview about his brother's possible association with the Nomads was irrelevant in the trial of Bradley Bowman himself and was inadmissible, whether tendered by the Crown or the respondent. That being so, he argued, Paul Bowman could not be prejudiced by a joint trial in the manner his Honour had found. 13 Before us, Paul Bowman was represented by Mr Odgers SC, whose submissions were adopted by Mr Johnston, counsel for Bradley Bowman. Mr Odgers argued that the evidence was relevant in Bradley Bowman's defence on the same basis as was urged in the District Court, but also for another reason. He contended that the very fact that Bradley Bowman was prepared to volunteer that information about his brother, given the implication of the police officer's question, could suggest that he had not been acting in concert with him and could cast a different light on other answers in the interview which might be seen as attempting to protect him. 14 While I can see the force of Mr Odgers' argument, it appears to me to face two obstacles. Firstly, Bradley Bowman's answers in the relevant part of the interview fall far short of a confident assertion of Paul Bowman's affiliation with the Nomads. Secondly, and more importantly, evidence that Paul Bowman did have that association would be irrelevant in the absence of evidence that the Nomads were indeed involved in the manufacture and distribution of amphetamines. Whether evidence to that effect would be admissible would depend upon its form and content and would require consideration of relevant provisions, particularly s 97, of the Evidence Act. Counsel for Bradley Bowman in the District Court spoke of his intention to introduce the newspaper article "in evidence through a police officer …". What he meant by that is unclear. Obviously, the newspaper article itself would not be admissible. 15 Accordingly, it was not suggested before his Honour that there would be positive evidence of Paul Bowman's association with the Nomads. Nor was it contended that there was admissible evidence of the Nomads' involvement in drug trafficking of the kind referred to in the newspaper article. On the material before his Honour, the most that could be established was Bradley Bowman's assertion of his belief that his brother had a connection with that bikers' club. Even that would assume significance only if there were evidence that the Nomads were criminally involved in drugs. It may be that Bradley Bowman's belief that they were so involved would be sufficient to make the evidence relevant on the second of the bases urged by Mr Odgers, but it was not put to his Honour (or, indeed, to this Court) that there would be evidence to that effect. 16 It follows that the central argument of the Crown prosecutor in this Court is made good. His Honour's order for separate trials was discretionary but I am satisfied that the exercise of that discretion miscarried, albeit in the light of a proposition which was not argued in the District Court. The respondents are alleged to have been involved in a joint criminal enterprise and, as his Honour acknowledged, the case is one which would ordinarily call for a joint trial in accordance with the authorities reviewed by this Court in R v Fernando [1999] NSWCCA 66 at pars 199–211. 17 This is not to deny that another application for separate trials might be considered if further material were able to be presented in support of it. However, I would allow this appeal and set aside the present order. ********** 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.