Citation: R v Crowther-Wilkinson & Cowie [2002] NSWSC 1207
Court: Supreme Court of New South Wales
Date: 17 December 2002
Judge(s): Hidden J
Background
Two accused, a business partner of the deceased and an employee of the same business, were jointly charged with the murder of the deceased. The Crown alleged that the deceased was shot in the early hours of 7 June 2000 and his body was weighted with chains and deposited into the Hawkesbury River near Brooklyn. The Crown's case against both accused was entirely circumstantial.
The Crown's evidence included telephone records, forensic examination of email activity, petrol purchase records, fingerprint evidence, a street directory found in the deceased's abandoned vehicle, and witness accounts placing both accused at a meeting with the deceased on the evening of 6 June 2000. Separate statements by each accused were alleged to contain provably false exculpatory claims.
One of the accused applied for a separate trial, arguing that the strength of the Crown case against him was weaker than that against his co-accused, and that a joint trial would cause him unfair prejudice.
Legal Issues
- Whether the accused applying for a separate trial would suffer prejudice from the volume of evidence admissible only against the co-accused, given the Crown case against him was alleged to be weaker.
- Whether the anticipated use of good character evidence by the co-accused, who had no prior convictions, would unfairly prejudice the applicant, who had prior convictions for dishonesty offences, in a joint trial.
Decision
On the first ground, Hidden J accepted that the case against the applicant may not have been as strong as that against his co-accused. However, his Honour found that the evidence admissible only against the co-accused did not tend to implicate the applicant in the offending. This was not a case where the evidence against one accused was so different in nature and strength from that against the other, and so prejudicial to the other, as to warrant severance.
On the second ground, the court acknowledged the genuine difficulty created when one co-accused intends to raise good character, including an absence of prior convictions, while the other cannot. Hidden J accepted that a jury would likely infer the applicant had a criminal record once the co-accused led that evidence, and acknowledged real doubt that any direction to the jury could effectively neutralise that reasoning.
Despite finding this aspect of the application troubling, and noting that no authority directly on point was identified by either party, Hidden J was not persuaded it warranted a separate trial. The court reasoned that the jury could know nothing of the nature of the applicant's criminal history, and that juries, properly directed on the burden of proof, the standard of proof, and the need to avoid speculation, would not reason in the impermissible way feared.
Orders Made
- Application for a separate trial refused.
Key Takeaways
- The Supreme Court confirmed that the prima facie rule requires persons alleged to be jointly involved in a crime to be tried together, consistent with established public policy principles articulated in Webb and Hay v The Queen (1993-4) 181 CLR 41.
- An application for a separate trial will not succeed merely because the Crown case against one accused appears weaker than that against the other; the applicant must demonstrate actual prejudice, not just disparity in the evidence.
- Evidence admissible only against one co-accused does not warrant severance unless it tends to implicate the other accused or is otherwise prejudicial to that other accused.
- Where one co-accused intends to lead good character evidence and the other cannot, a jury may well infer the latter has a criminal record. Hidden J found this genuinely troubling but held it insufficient to justify severance where proper directions could be given and the jury could know nothing of the nature of any record.
- The decision confirms, following R v Middis (unreported, 27 March 1991) and R v Georgiou [1999] NSW CCA 125, that the threshold for displacing a joint trial remains high, even where character evidence creates asymmetry between co-accused.
Legislation and Cases Referenced
Cases:
- R v Domican & Thurgar (1989) 43 A Crim R 24
- R v Middis (Supreme Court, unreported, 27 March 1991)
- R v Georgiou [1999] NSW CCA 125
- Webb and Hay v The Queen (1993-4) 181 CLR 41
Legislation: No legislation was cited in this decision.