New South Wales Supreme Court CITATION : Regina v Steer [2006] NSWSC 642 JUDGMENT DATE : 22 June 2006 JUDGMENT OF : Whealy J at 1 EX TEMPORE JUDGMENT DATE : 06/22/2006 DECISION : Application to sever the two counts in the Indictment refused - application for separate trials refused. LEGISLATION CITED : Evidence Act 1995 Criminal Procedure Act 1986 R v Serratore (1999) 48 NSWLR 101 Papakosmas v R (1999) 196 CLR 297 CASES CITED : R v Blick (2000) 111 A Crim R 326 R v EM (2003) NSWCCA 374 R v Yates (2002) NSWCCA 520 at (252) PARTIES : Regina v Brian James Steer FILE NUMBER(S) : SC 2006/239 COUNSEL : Mr P. Barnett - Crown Mr D. Stewart - Accused SOLICITORS : DPP (NSW) - Crown Ross Hill & Associates - Accused IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J THURSDAY 22 June 2006 2006/239 - REGINA v Brian James STEER JUDGMENT 1 HIS HONOUR: Brian James Steer, the accused, was arraigned before me this morning on two charges. The first is that between 12 February 2005 and 15 February 2005 at Taree in the State of New South Wales he did murder Warren Leslie Dickson. Secondly, on 18 February 2005 at Wauchope in the State of New South Wales, when armed with an offensive weapon, he did rob Jacqueline Lee Preston and Karen Anne Walsh of an amount of money the property of the Australian and New Zealand Banking Group Limited. To each of these charges the accused pleaded not guilty. 2 As I understand the history of the matter, the accused was first charged on or about 22 February 2006 with one count of murder and one count of armed robbery. He was committed from Taree Local Court on 24 January 2006 for trial at Port Macquarie Supreme Court and that matter is listed for hearing in the week commencing 11 September 2006. I have been designated as the judge to preside over the trial. 3 Normally an armed robbery charge would not be heard in the Supreme Court but dispensation to have the matter heard in the Supreme Court was sought by the Director of Public Prosecutions and permission was given by the Chief Justice of the Supreme Court of New South Wales on 27 March 2006. 4 The present application that comes before me, as the judge designated to preside over the trial, originates in a notice of motion signed by Mr Ross Hill, the solicitor for the applicant. It is dated 13 May 2006. By this motion the accused seeks to sever the count of armed robbery from the indictment and seeks an order that it be heard separately from the indictment for murder. I should say, if I were minded to sever the count as sought in the notice of motion, it would normally be the situation that that charge would be remitted to the District Court for hearing rather than remain in the Supreme Court. 5 The affidavit in support of the application is by Mr Ross Hill. He recites the fact that one Warren Dickson was found deceased following the attendance of Fire Brigade officers at premises at 90 Commerce Street, Taree. The Fire Brigade officers were called there in the early hours of the morning on 14 February 2005. The post-mortem examination concluded that the cause of death related to wounds that had been occasioned to the throat of the deceased, including the severing of his carotid artery and trachea. Mr Hill's affidavit, in paragraph 4, then refers to the fact that on 18 February 2005 an armed robbery was committed on the ANZ bank at Wauchope and repeats the Crown allegation that it was the accused who committed that robbery. He makes the point however that the Crown case relies on surveillance footage within the bank to identify the accused as the offender. 6 In paragraph 7, Mr Hill says that the defence will argue inter alia that the evidence of the robbery is not admissible in the trial for murder; alternatively, the defence will argue that if it is admissible, it should be excluded pursuant to the exercise of the Court's discretion; (Evidence Act ss 135 and 137). " Section 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. Section 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant". 7 In one sense, the application that is before me has traversed, in particular, s 137 of the Evidence Act, so it will be necessary to consider it in this application. 8 The application for severance, however, is essentially made in reliance upon s 21(2) of the Criminal Procedure Act 1986. That sub-section is in the following terms: - "(2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment". 9 It will be seen from a reading of s 21(2) that the matters that have been argued before me are in fact the very matters that arise under the section. 10 Mr Stewart has presented the arguments on behalf of the accused. They require the Court to understand and appreciate something about the nature of the Crown case. It may be convenient, therefore, if I deal with a general statement of the Crown case before coming to the precise arguments Mr Stewart has presented. As I understand it, the Crown case has as its background the circumstance that the accused took a dislike to the deceased following the break-up of his relationship with his former girlfriend. 11 The Crown case is that the accused attended at the premises at 90 Commerce Street, Taree, and there, probably in the course of an argument between the two men, the accused slit the deceased's throat. He then set fire to the body and the building and fled the scene. Again, according to the Crown case, in the days following the alleged murder, the accused told a number of people that he had killed the deceased. Putting the matter generally, it appears that the accused, again according to the Crown case, told these people that he was convinced the police were going to charge him and that he had made up his mind to flee. 12 One of these people was a friend of the accused's, one Elizabeth Mitchell. The Crown has taken me in considerable detail to the statement of Miss Mitchell, in particular paragraphs 12 to 14 inclusive. Those paragraphs of Miss Mitchell's statement suggest that the accused made admissions to her in which he said, for example, that the deceased had taken advantage of his ex-girlfriend, Nicki; and that he had a fight with the deceased on the night in question, and that during the course of that fight he had slit the deceased's float, "doused his body in metho and torched him". 13 In paragraph 15, again according to the Crown case, Miss Mitchell says that the accused told her that when he had left her place he was going to take his kids for a drive and tell them what he had done. Then he was going to try and get some cash. He said he had organised "to do three banks". He told her that he had a gun in the glove box. He showed her what appeared to be a pistol, and she told him to put it away. He told her that he was planning to get "about a hundred grand" and said, "That should be enough to hide me so they can't find me. I will do anything it takes not to get caught." 14 As I have already said, the Crown case includes details of the bank robbery itself. During the course of that robbery, the person who carried out the apparent armed robbery said to the teller at the time, somewhat enigmatically I suggest, "Once they find out what I did last week …." The teller Miss Preston did not hear the remainder of the sentence as she was busy getting money out to hand it over to the man with the gun. 15 Kelly Barkwill is a person who had known the accused for about a year and a half. She had met him through her younger sister and her de facto whose name was Jed Moy. Miss Barkwill knew something about his relationship with Nicki, and she knew that problems had occurred between the accused and Nicki in relation to their relationship. On 18 February 2005 about 8.30 in the evening she met the accused in circumstances where she picked him up from the corner of Louis and Commerce Streets in Taree. She drove him back to her place in Cowper Street, and she then had a conversation with him. 16 According to the Crown case and the statement given by Kelly Barkwill, there was a discussion about guns. She said that she saw three black handguns beside the backpack in the room where the accused was. Later she saw the accused sitting on her bed counting money, and she had a conversation with him, during which he, according to her, referred to the incident on Commerce Street. He said, "There was a house fire and a guy got killed." Miss Barkwill said that he admitted that he did that. He also told her he had just robbed a bank at Wauchope. He said during the course of these conversations: "I went around Nicki's mum's place one day. I don't know what day it was. They were having a family get together and I found out that this guy was at the house with Nicki. That was the straw that broke the camel's back. It proved to me that they had no respect for me." 17 Later in the same conversation the accused, according to Miss Barkwill, gave further details of the incident at the house on the night when the deceased was killed. This generally confirmed there had been a struggle between the two men and that, at some point in the struggle, the accused grabbed a knife and pinned the deceased on the ground and cut his throat. The accused also, according to Miss Barkwill, told him about the robbery he carried out at the Wauchope bank and how he had got "twenty-four thousand and something" from two tellers. 18 Early the next morning the accused told her once again, according to the statement to which I have made reference, that he was sorry for what he had got her into. He told her he was going to do two more armed robberies, and he had a timetable and what banks he was going to "hit" and at what time. He said he wanted $60,000 so that he could lay low for a while, and he would do what he had to "so he could survive". 19 Against the background of those matters, which as I say may be said to be a summary of some aspects of the Crown case, Mr Stewart has said that he accepts that the Crown argument that there is a connection between the robbery and the murder, but he says that the evidence of what was said in the bank to the teller lacks any real degree of probative value. 20 Secondly, he says to the extent that there may be revealed by any of the alleged statements made by the accused to either of the young women to whom I have made reference, assuming their evidence were accepted, that there was an intention on his part to flee, the plain fact of the matter is that he did not flee; and later, after discussion with solicitors, handed himself in to police. 21 The third point he made was that the risk that will arise in this trial, if both matters are heard together, is that there will be before the jury evidence of a serious criminal offence which will plainly paint a picture of a person who has a significantly bad character. 22 In his reply submissions, Mr Stewart returned to this point again, and he said that the situation is exacerbated depending on the way in which it is examined. If one were to consider simply the armed robbery allegation, then there will be before the jury what he described as "gruesome" evidence of the same person allegedly slitting the throat of the deceased and burning the house and body before fleeing. He submitted that this was "too high a price" in the sense that the prejudice flowing to the accused on the robbery charge would be very significant indeed. Putting the argument around the other way, he then suggested, as he had done in his principal submissions, that evidence of the robbery would be in effect too high a price to pay when considering the issues that might arise in the murder charge. 23 The Crown, on the other hand, argued that the facts of the robbery, particularly in the light of the statements allegedly made by the accused to the two young women, do provide significant evidence of a consciousness of guilt, as that expression is used in the authorities. In other words, it provides an explanation for why the robbery was carried out, according to the Crown argument. 24 Secondly, the Crown said the admissions about the murder are interwoven with the robbery that was contemplated on the one hand, and the fact of the robbery after it had been carried out on the other. In particular, the evidence from Miss Barkwill, if it is accepted, shows that it was the counting out of the money and his conversation with her about that that led him to the admissions he made regarding the fight he had with the deceased and the circumstances of the deceased's death. The Crown argued that to remove the context of the admissions about the murder in that situation would be to significantly distort the Crown case. 25 Thirdly, the Crown argued that the fact of the robbery and the fact of the accused's participation, according to the Crown case, support the veracity of the conversations each lady said she had had with the accused. In other words, that those conversations and the admissions allegedly contained within them derive considerable support from the fact that the robbery occurred. The murder is probative of the robbery and the robbery is probative of the murder, according to the Crown argument. 26 In response to Mr Stewart's arguments, the Crown said that the fact that the accused has changed his mind does not dispose of the plain fact that he certainly had an intention to flee prior to the alleged armed robbery and shortly after it. 27 Finally, the Crown submitted that while it is true that the serious offence of armed robbery might possibly have the capacity to colour the jury's views about the murder charge, and perhaps vice-versa, that this is not an uncommon situation and that the matter of possible prejudice can be cured by way of directions. 28 I have given careful consideration to the arguments that have been put before me by both parties. I have, I must say, found them quite helpful. But the view I have finally come to is that I should not sever these counts, and my reasons are essentially these: 29 First, on the face of it and having regard to the nature of the Crown case, these two crimes are very closely connected and intertwined, not only in a temporal sense but also in relation to all the circumstances that underlie their alleged commission. 30 Secondly, while it is true that the alleged admission made to the bank teller is, to use the expression I have already used myself, rather enigmatic, it does seem to me it is a matter for the jury to determine whether it is or is not an admission as the Crown suggests it is. Mr Stewart will have the opportunity of suggesting to the jury that it does not by any means necessarily have that connotation. The Crown will be entitled to rely on earlier evidence to give content to the unfinished sentence. 31 Thirdly, it seems to me that many of the arguments that have been put to me by Mr Stewart, and they do have a degree of persuasive force, are really matters that can be placed before the jury. They are really jury questions and require jury evaluations. Of course, the Court has an obligation to exclude evidence if its probative value is outweighed by the risk of unfair prejudice, I am very conscious of that, but all the authorities on that point, make it clear that merely because evidence might, on one view of it, tend to more readily lead to the conviction of a person does not mean that there is for that reason a risk of unfair prejudice. (See ss 55, 56 of the Evidence Act 1995; dictionary definition of "probative value"; R v Serratore (1999) 48 NSWLR 101, Papakosmas v R (1999) 196 CLR 297; R v Blick (2000) 111 A Crim R 326; R v EM (2003) NSWCCA 374; R v Yates (2002) NSWCCA 520 at (252). 32 On the other hand, as the authorities make clear, the probative value of a particular piece of evidence is quintessentially a matter for a jury to evaluate, given that it will receive appropriate general guidance from the Court, and no doubt appropriate submissions will be made by each side as to the weight to be given to particular pieces of evidence. Of course, all of that will be very much affected by the context in which the alleged admissions were made and will be very much influenced by the demeanour of the witnesses and the way in which cross-examination may impact upon their reliability and perhaps their credibility. 33 The fourth point I would make is that, whilst I have come to the conclusion that I should not sever the counts in the indictment, I do not put it out of the question for the accused to raise again at the time of trial, either before the trial or during the trial, questions as to whether, for particular reasons, particular pieces of evidence should be excluded under s 137. At this stage I am not persuaded that they should be, but I leave it an open matter for those matters to be addressed in the fullness of time when the evidence takes on a more realistic air than it does sitting in this courtroom reading statements of people rather than listening to the live evidence of witnesses. 34 Fifthly, I think that the Crown submission is to be preferred in relation to the issue concerning flight. I accept that, as the situation turned out, the accused did not flee. But I think that evidence going to his state of mind shortly after the commission of the alleged murder is material that is relevant to the Crown case, and I am not persuaded it should be excluded for that reason. I am also persuaded that the evidence of the commission of the second crime, therefore, is very much closely connected to and intertwined with the first and that is another reason why I think that severance should not occur. 35 About one matter Mr Stewart is plainly right, this is in connection with the sixth matter: care needs to be taken to ensure appropriate directions are given to the jury to ensure that the presence of the two counts does not engender unfairness to the accused. I remain generally convinced that juries do pay heed to the directions given by the trial judge, and it seems to me that a forceful direction can be given to the jury here that they have to consider these two counts separately, even though there may be some elements of the evidence that are relevant to both of them. A forceful direction should be given to a jury that they are not to use the fact that the accused is charged with these two serious offences in a way which is impermissible, and they should be told in no uncertain terms about the inappropriateness of reasoning that an accused may be guilty of one charge merely because they are satisfied he is guilty of another. In short, I think that adequate directions can be given to remove any prejudice or embarrassment to the accused in his defence that might arise by his being charged with more than one offence in the same indictment. 36 It follows that I am satisfied that it is neither necessary nor desirable to direct that the accused here be tried separately for either of the offences charged in the present indictment. I have concluded that I should decline to order a separate trial of the armed robbery offence. ********** 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.