Citation: R v Hazairin Iskandar; R v Andrew Iskandar & R v Nita Iskandar [2011] NSWSC 1192
Court: Supreme Court of New South Wales
Date: 11 October 2011
Judge: Davies J
Background
Three accused faced charges arising from the death of a man at Leichhardt on 21 February 2010. Two of the accused (a father and his adult son) were jointly indicted for murder. The Crown alleged they drove together to the deceased's home and attacked him with a knife and hammer after suspecting him of having an affair with the wife and mother of the two accused respectively. The third accused (the wife and mother) was charged with being an accessory after the fact, knowing the son had committed the murder.
The Crown's case was framed as a joint criminal enterprise: both the father and son intended to assault and kill, or at least cause grievous bodily harm to, the deceased. The father's own defence was that he intended only to injure the deceased but was provoked by words spoken immediately before or during the attack.
On the first day of trial, the father applied for a separate trial from his son. The application turned on the admissibility and potential prejudicial effect of admissions the son had made to two witnesses, which implicated the father in a shared intention to kill.
Legal Issues
- Whether the father should be tried separately from the son and the accessory, given that evidence admissible only against the son contained admissions about a shared intention to kill
- Whether those admissions created a real risk of positive injustice to the father at a joint trial, even with appropriate jury directions
- How the established principles for separate trials apply where the Crown case is built on joint criminal enterprise
Decision
Davies J set out the well-established principles governing applications for separate trials. The starting point is that persons jointly charged should ordinarily be tried together, to avoid inconsistent verdicts and conserve resources. However, a separate trial will usually be ordered where the evidence against one accused is significantly weaker and different from that against the other, where that other accused's evidence contains highly prejudicial material not admissible against the applicant, and where there is a real risk the weaker Crown case will be made substantially stronger by that material. The applicant must demonstrate that a joint trial would cause positive injustice.
On the facts, the father's case was a circumstantial one. He did not dispute causing the death or acting with an intention to kill or inflict grievous bodily harm. Rather, his only contestable issue was whether that intention existed from the outset or arose only at the moment of provocation, which bore directly on the availability of the partial defence of provocation. The son's admissions, made in a statement to a witness and in a recorded interview, indicated a pre-existing intent to kill the deceased. Those admissions were admissible only against the son, not the father.
Davies J accepted that jury directions, while normally assumed to be effective, may in some circumstances be insufficient to overcome prejudice. This was particularly so in a joint enterprise case. It would be extremely difficult for a jury hearing admissions from one alleged participant in a joint criminal enterprise to put that evidence entirely out of mind when assessing the other participant's intent, especially where the Crown was inviting the jury to draw inferences about when the father formed the requisite intention.
The court found that the risk of prejudice was real and not inconsequential. The countervailing factors, namely the cost and time of a second trial and the need for witnesses to give evidence twice, were outweighed by the risk of positive injustice to the father. A separate trial was ordered accordingly.
Orders Made
- The father (Hazairin Iskandar) be tried separately from the son (Andrew Iskandar).
- The father's trial stood over to the Arraignments List on 11 November 2011.
Key Takeaways
- The Supreme Court confirmed that the presumption in favour of joint trials is not absolute: positive injustice to an accused can displace it, particularly where co-accused admissions are inadmissible against the applicant but highly prejudicial in context.
- The three-part test from R v Middis (Hunt J, 1991) remains the guiding framework: significantly weaker and different evidence against the applicant, highly prejudicial inadmissible material from the co-accused, and a real risk that material will make the Crown case immeasurably stronger.
- Following R v Pham [2004] NSWCCA 190 and Madubuko Henry Ugo v R [2011] NSWCCA 135, the crucial question is the potential effect of the inadmissible evidence on the jury's assessment of the applicant's case, not simply the relative strength of the cases against each accused.
- In joint enterprise cases, the difficulty of compartmentalising co-accused admissions is heightened: a jury may find it practically impossible to apply evidence of one participant's intent only to that participant when the Crown alleges a shared intention.
- Jury directions, while ordinarily assumed sufficient to cure prejudice, may not always be adequate where the inadmissible material goes to a central contested issue. In such circumstances, a separate trial may be the only means of avoiding a miscarriage of justice.
Legislation and Cases Referenced
Cases:
- Gilbert v R [2000] HCA 15; (2000) 201 CLR 414
- Madubuko Henry Ugo v R [2011] NSWCCA 135
- R v Baartman (unreported, Court of Criminal Appeal, 6 October 1994)
- R v Darwiche [2011] NSWCCA 62
- R v Fernando [1999] NSWCCA 66
- R v Mahmoud Chami [2002] NSWCCA 136
- R v Middis (unreported, Hunt J, 27 March 1991)
- R v Pham [2004] NSWCCA 190
- R v Symss [2003] NSWCCA 77
- Regina v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1997) 107 A Crim R 432
- Webb & Hay v The Queen (1994) 181 CLR 41
Legislation: No specific legislation was cited in this decision.