Citation: R v White & ors (No 1) [2012] NSWSC 465
Court: Supreme Court of New South Wales
Date: 21 March 2012
Judge(s): Hulme J
Background
Three co-accused were committed for trial together. The first accused faced a charge of murder arising from a fatal assault on a drug dealer in December 2008. The second accused was charged as an accessory after the fact to that murder, having allegedly assisted with removing the deceased's car and later the body. A third accused faced charges of robbery and accessory after the fact to murder.
Shortly before the trial was due to commence in Lismore, counsel for the first accused received information from counsel for the second accused that prompted concerns about the fairness of a joint trial. The first accused then applied for his trial to be conducted separately from that of the second accused.
The application centred on the possibility that the second accused's defence would involve blaming the first accused for the underlying murder, potentially causing prejudice to the first accused's own trial.
Legal Issues
- Whether the potential for one co-accused's defence to cast blame on another co-accused was sufficient to warrant an order for separate trials.
- Whether any resulting prejudice to the first accused would amount to "positive injustice" requiring separation.
- Whether appropriate jury directions could adequately manage any prejudice arising from evidence admissible against one accused but not the other.
Decision
Hulme J refused the application for separate trials. His Honour accepted that the situation had some resemblance to the scenario considered in R v Fernando [1999] NSWCCA 66, where one accused seeks to exculpate himself by placing blame on another, but concluded that this fell short of the classic "cut throat" defence in which co-accused directly accuse each other of committing the same offence.
The critical question was whether the second accused's possible attempt to blame the first accused would cause "positive injustice" at trial. His Honour found that this question could not be answered at the pre-trial stage. To conclude that positive injustice would result would require speculation about evidence not yet before the jury, and the application was accordingly premature.
His Honour was satisfied that appropriate jury directions would be sufficient to manage any prejudice arising from evidence admissible against the second accused but not the first. He indicated his usual practice of summarising the Crown case and each accused's response separately during the summing-up, combined with standard directions about separate consideration, would adequately protect the integrity of the proceedings against each accused.
The court also noted, as a relevant but not decisive consideration, that much of the same evidence would need to be called in both trials in any event, and that separate trials would not be substantially shorter.
Orders Made
The application by the first accused (White) for a trial separate from the trial of the second accused (Serone) was refused.
Key Takeaways
- Refusing the separation application, the Supreme Court confirmed that mere speculation about a co-accused's likely defence is insufficient to establish the "positive injustice" required to order separate trials.
- The court distinguished between a true "cut throat" defence, where co-accused mutually accuse each other of committing the same crime, and a scenario where one accused may seek to exculpate himself by blaming another for a separate aspect of the events.
- Whether one co-accused's defence causes unacceptable prejudice to another is a question that can only be assessed once evidence is actually placed before the jury, not resolved in advance on the basis of anticipated forensic strategy.
- Appropriate jury directions, including separate summaries of the Crown case and each accused's response, can in many cases provide an adequate remedy for prejudice arising from evidence admissible against one accused but not another.
- The overlap in evidence between the trials of co-accused, and the additional time and resources required for separate proceedings, are relevant to the interests of the administration of justice, though neither factor is decisive on its own.
Legislation and Cases Referenced
Cases:
- R v Fernando [1999] NSWCCA 66
- Symss v R [2003] NSWCCA 77
Legislation: No specific legislation was cited in the judgment.