Citation: R v Lu; R v Pham [2007] NSWSC 1141
Court: Supreme Court of New South Wales
Date: 16 July 2007
Judge(s): Price J
Background
Two accused, referred to here as Lu and Pham, were jointly charged with the murder of a man in Liverpool on 1 October 2005. Pham faced an additional charge of assaulting the deceased's mother on the same occasion. The Crown alleged that both men had a prior grievance with the deceased stemming from an incident about a month earlier, and that on the day of the killing they drove together to a location where they encountered the deceased and his family.
The Crown intended to run its case on the basis of a joint criminal enterprise, contending that both men jumped a fence and confronted the deceased at the front door of a residential property. The deceased was found with a broken knife blade embedded in his chest and died shortly afterwards. Each accused gave a police interview in which they provided different, and at points contradictory, accounts of what occurred.
Both accused separately applied for a separate trial, arguing that being tried together would cause each of them positive injustice. Price J heard and determined those applications on 16 July 2007.
Legal Issues
- Whether the evidence against one accused was significantly weaker than, or different to, the evidence admissible against the other
- Whether evidence admissible only against one accused was highly prejudicial to the other
- Whether there was a real risk that the weaker Crown case against an applicant would be made materially stronger by reason of that prejudicial, inadmissible material
- Whether a joint trial would cause positive injustice to either accused that could not be cured by judicial direction
Decision
Price J applied the established principles governing applications for separate trials, drawn from Regina v Middis and affirmed in subsequent Court of Criminal Appeal decisions. The starting point, his Honour confirmed, is that where the Crown alleges a joint criminal enterprise, the accused should ordinarily be tried together. A departure from that default requires the applicant to demonstrate a real risk of positive injustice in a joint trial.
His Honour assessed the comparative strength of the Crown cases against each accused as roughly equivalent. However, the critical problem lay in the content of Lu's police interview (ERISP). In that interview, Lu recounted that Pham had said to him in Vietnamese "I stabbed him" after returning to the car. That statement was not admissible against Pham, but in a joint trial a jury would hear it. Price J found the prejudice arising from this inadmissible material was "very high," amounting to an explicit admission by Pham that he inflicted the fatal wound.
A further complication arose from the proposed evidence of a witness, Klintworth, who had told police in 2005 that Pham had attempted to stab him in the heart. Although Klintworth had resiled from that account by the time of the hearing, Lu's counsel indicated an intention to use the prior statement as a prior inconsistent statement. That evidence had the potential to strengthen the reliability of the very admissions in Lu's ERISP that were inadmissible against Pham, heightening the prejudice still further.
Price J concluded that a strong judicial direction to the jury to disregard the inadmissible material would not be sufficient to avoid a miscarriage of justice in these circumstances. Pham had demonstrated a real risk that positive injustice would be caused to him in a joint trial, and the application was granted.
Orders Made
- Lu and Pham to be tried separately.
Key Takeaways
- The Supreme Court confirmed that where accused are alleged to be parties to a joint criminal enterprise, a joint trial is the default position, and an applicant must show a real risk of positive injustice to displace it.
- Under the Middis principles, a separate trial will usually be ordered where the evidence against co-accused contains material highly prejudicial to an applicant that is not admissible against that applicant, and where there is a real risk that the inadmissible material will make the Crown case against the applicant immeasurably stronger.
- An inadmissible statement in a co-accused's police interview amounting to an explicit admission of guilt by the applicant may constitute prejudice so high that even a strong judicial direction cannot cure the risk of miscarriage of justice.
- The risk of positive injustice can be compounded where other evidence, proposed to be adduced at trial, has the tendency to bolster the reliability of the inadmissible material in the jury's mind.
- Broadly comparable Crown case strength against each accused does not preclude an order for separate trials where the nature of the inadmissible prejudicial material creates an independent and incurable risk of injustice.
Legislation and Cases Referenced
Cases:
- Regina v Jon Leslie Baartman (unreported, NSWCCA, 6 October 1994)
- Regina v Georgiou [1999] NSWCCA 125
- Regina v Stephen Frederick Middis (unreported, NSWSC, 27 March 1991)
- Regina v Pham [2004] NSWCCA 190
- Webb v The Queen (1994) 181 CLR 41
Legislation: No legislation was cited in the judgment.