Citation: SYMSS v THE QUEEN [2003] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 2 April 2003
Judge(s): Sheller JA; James J; Smart AJ
Background
The appellant and his co-accused were jointly tried before Howie J in the NSW Supreme Court on three counts arising from events in Wagga Wagga on 24 April 1999. The counts included the murder of a 74-year-old woman, robbery with wounding, and motor vehicle theft. The Crown's case was that the two men, who had recently befriended each other at a men's shelter, went to the victim's home intending to obtain money, and that one or both of them killed her before stealing jewellery, cash, and her vehicle.
The jury found the appellant guilty on all three counts, including murder. His co-accused was acquitted of murder but convicted of manslaughter and the other offences. The appellant was sentenced to 22 years' imprisonment for murder, with a non-parole period of 16.5 years.
The appellant, self-represented before the Court of Criminal Appeal, challenged his conviction on multiple grounds. These included the wrongful exclusion of evidence he considered favourable, the wrongful admission of prejudicial character evidence, and the trial judge's refusal to order that he be tried separately from his co-accused.
Legal Issues
- Whether the trial judge wrongly excluded a prior threat made by the co-accused to his sister (that he would stab her), which the appellant argued pointed to the co-accused as the actual killer
- Whether prejudicial character evidence about the appellant was wrongly admitted at trial
- Whether the trial judge erred in refusing to order a separate trial, given that each accused was blaming the other (a "cut-throat" defence)
- Whether the summing-up contained errors or omissions that resulted in a miscarriage of justice
Decision
On the excluded evidence, the Court found that the co-accused's prior threat to stab his sister had no significant probative value. It could not be reasonably inferred from a threat directed at a family member that the co-accused was the person who stabbed the victim in this case. The trial judge's exclusion of that evidence was therefore not in error.
On the character evidence, the appellant's trial counsel had not objected to the evidence at the time, and the appellant was bound by that forensic decision. The Court applied the principle from R v Birks (1990) 19 NSWLR 677. Further, the trial judge's summing-up had given adequate directions to protect against any misuse of that material, and the Court reiterated the principle from Gilbert v The Queen (2000) 201 CLR 414 that jurors are presumed to comply with their oath and follow judicial directions.
On the refusal to order a separate trial, the Court confirmed that there are strong reasons of principle and policy for jointly trying co-accused who are charged with committing an offence together, particularly where each blames the other. The risk of prejudice from particular evidence can be addressed by careful judicial directions. This is especially so where the evidence against each accused is not significantly different in strength, so that a joint trial does not risk rendering a materially weaker case immeasurably stronger through prejudicial association.
The Court concluded that Howie J's summing-up was thorough, careful, and clear, that no redirections were sought by either party at trial, and that there was no basis to find the verdict unreasonable, any error of law, or any miscarriage of justice. All three judges agreed the appeal should be dismissed.
Orders Made
- Appeal dismissed.
Key Takeaways
- A prior threat made by a co-accused against a third party will not have significant probative value on the question of who committed the offence charged unless a reasonable inference can be drawn connecting the two acts. A threat "to stab" a sister did not establish, even as a reasonable possibility, that the co-accused stabbed the murder victim.
- Where trial counsel does not object to evidence at the time of admission, the accused is generally bound by that forensic decision on appeal and cannot later characterise the evidence as having been wrongly admitted.
- Jointly trying co-accused who each blame the other for an offence is the default position in NSW criminal practice. Separate trials are not required simply because a cut-throat defence is run.
- The risk of prejudice in a joint trial can ordinarily be managed through careful judicial directions, particularly where the evidence against each accused is of broadly similar strength and character.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that jurors are presumed to follow a trial judge's directions, and that a thorough summing-up will generally protect against misuse of sensitive evidence about an accused's character.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- Webb and Hay v The Queen (1994) 181 CLR 41
- Gilbert v The Queen (2000) 201 CLR 414
- R v Birks (1990) 19 NSWLR 677
- R v Collie (1991) 56 SASR 302
- R v Patsalis and Spathis (1999) 107 A Crim R 432
- R v Lock (1997) 91 A Crim R 356
- Ignjatic (1993) 68 A Crim R 333
- Lockyer (1996) 89 A Crim R 457
- Fernando (1999) NSWCCA 66
- R v Georgiou (1999) NSWCCA 125
- Spratt (1982) 8 A Crim R 351
- R v Middis (unreported, NSWCCA, 27 March 1991)