Citation: R v Robert Francis Agius [2011] NSWSC 982
Court: Supreme Court of New South Wales
Date: 31 August 2011
Judge(s): Simpson J
Background
The accused, a resident of Vanuatu, was charged with two counts of conspiracy to defraud the Commonwealth, jointly indicted alongside three co-accused. The alleged offences involved large-scale taxation fraud of considerable complexity. The accused had been on bail since May 2008, subject to a condition requiring him to remain in Australia.
By the time of this application, the proceedings had already been on foot for over three years. Earlier attempts to challenge the indictment had been rejected at first instance, on appeal to the Court of Criminal Appeal, and on a special leave application to the High Court. One co-accused was pregnant and unable to participate in a trial after mid-September 2011.
The accused filed a notice of motion seeking a separate trial, principally on the grounds of ongoing delay, prejudice arising from his bail conditions, and differences in the evidence to be led against each accused.
Legal Issues
- Whether the accused had established a sufficient basis for the court to order a separate trial from his co-accused
- Whether the delay experienced to date, and the prospect of further delay, justified severance
- Whether the differences between the prosecution cases against each accused warranted separation
- Whether a separate trial of the accused alone would result in any meaningful reduction in hearing time or earlier commencement
Decision
Simpson J dismissed the application. The starting point, confirmed in Webb v The Queen and Domican v R, is that persons alleged to be co-offenders ought ordinarily to be tried jointly. The accused was unable to bring his case within any recognised exception to that general rule.
On the delay argument, the court found that even if a separate trial were ordered, it could not commence before mid-October 2011. Estimates consistently placed the trial duration at no less than 12 weeks. The court was unwilling to empanel a jury in a trial that carried a real probability of extending into the Christmas period, given the unfairness to jurors and the risk that complex evidence would not receive adequate attention.
Critically, the court found that a trial of the accused alone would not be materially shorter than a joint trial. Because of the nature of the Crown case, virtually all of the evidence to be tendered against the co-accused would also need to be tendered against the accused individually. There would be little, if any, reduction in hearing time even if the accused were tried separately.
The court concluded that if a joint trial could not proceed that year, neither could a separate trial of the accused alone. The preparation for trial had not yet reached a stage at which a jury could confidently be empanelled, and the parties were still negotiating over the documentary evidence to be admitted.
Orders Made
- The application for a separate trial was dismissed.
Key Takeaways
- The general rule, confirmed in Webb v The Queen (1994) 181 CLR 41 and Domican v R (1989) 43 A Crim R 24, is that co-accused should be tried jointly; a separate trial requires the applicant to bring the case within a recognised exception.
- Delay and ongoing bail conditions, without more, did not satisfy the threshold for severance, particularly where a separate trial would not commence any earlier than a joint trial.
- Where the prosecution case against one accused substantially overlaps with the evidence against all co-accused, a separate trial will not necessarily be of shorter duration, and that consideration weighs against severance.
- Refusing the application, the Supreme Court signalled that it would not empanel a jury in a lengthy and complex trial where there was a real prospect the proceedings would extend through the Christmas period, treating that as a matter of fairness both to jurors and to the integrity of the proceedings.
- Preparation for trial that has not yet reached the stage of being ready for a jury to be empanelled is a relevant factor when assessing applications for separate trials, as it affects the feasibility of any order made.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
Cases:
- Webb v The Queen [1994] HCA 30; 181 CLR 41
- Domican v R (1989) 43 A Crim R 24
- R v Baladjan & Ors [2008] NSWSC 1471
- R v Agius & Ors [2011] NSWSC 367
- R v Agius & Ors [2011] NSWCCA 119
- Abibadra v The Queen; Jandagi v The Queen; Zerafa v The Queen; Agius v The Queen [2011] HCA Trans 171