Citation: R v Kearnes; R v Paton [2013] NSWSC 1139
Court: Supreme Court of New South Wales
Date: 9 August 2013
Judge(s): Button J
Background
Two co-accused were charged on a single count of murder, alleged to have been committed in the early hours of 21 July 2011 in Wagga Wagga. The Crown alleged they travelled together from Tumut and shot the deceased multiple times to the head and neck, pursuant to a joint criminal enterprise to kill. The alleged motive was ill feeling harboured by one accused toward the deceased arising from a romantic relationship the deceased had with his former wife.
The Crown proposed a joint trial, scheduled to commence at Albury on 3 September 2013. One accused applied by notice of motion for a separate trial, arguing that evidence admissible only against the other accused would cause him a positive injustice if the proceedings were conducted together.
The Crown opposed the application. Counsel for the other co-accused took a neutral position.
Legal Issues
- Whether the joint trial of the two co-accused should be separated on the ground that a positive injustice would arise
- Whether the evidence of an admission made by one co-accused to a close relative was sufficiently prejudicial to the other accused to warrant separation
- Whether a jury could realistically compartmentalise that admission, taking it fully into account against one accused while disregarding it entirely against the other
- Whether the weaker Crown case against the applicant would be made immeasurably stronger by the admission of highly prejudicial evidence properly directed only against his co-accused
Decision
Button J began from the settled principle that allegations of joint criminal enterprise are ordinarily tried together, and that the court has a strong disposition against ordering separate trials. His Honour identified the governing test as that stated in R v Middis: a separate trial is warranted where there is a real risk of positive injustice, particularly where evidence against one accused is significantly weaker and would be made immeasurably stronger by highly prejudicial material that is admissible only against the other.
The Crown case against the applicant rested on witness evidence, telephone records, a car sighting, and an alleged admission to a prison informer. The Crown case against the co-accused was, by comparison, considerably stronger: a palm print within the apartment block, CCTV footage, a witness identification, and an admission made to a close relative who had known him since birth. Button J accepted that the Crown case against the applicant was weaker than that against the co-accused.
The critical piece of evidence was the aunt's account of what her nephew had told her about the night of the shooting. That admission, while admissible only against the co-accused, directly implicated the applicant by name. Button J found that the admission was likely to carry significant weight with a jury, in part because of the close and longstanding relationship between the witness and her nephew, which gave it a character quite different from the evidence of a prison informer. The emotional and human dimensions of the evidence, His Honour considered, heightened the risk that a jury could not realistically put it aside when deliberating on the applicant's guilt.
Button J concluded that even professional judges would find it difficult to fully compartmentalise the aunt's evidence in the way the jury would be directed to do. The test in R v Middis was satisfied. The inconvenience of two trials, though substantial, did not outweigh the real risk of positive injustice to the applicant, particularly given the exceptional seriousness of the charge, which carried a maximum penalty of life imprisonment without parole.
Orders Made
- The trials of the two accused for the murder of the deceased are to proceed separately.
- The court indicated it would immediately hear submissions as to which trial should proceed first, make a ruling on that question, and then conduct a pre-trial mention and discussion of the first trial.
Key Takeaways
- The governing test for a separate trial in New South Wales, as applied in this decision, requires the applicant to establish a real risk of positive injustice, not merely some theoretical disadvantage from a joint proceeding.
- Where the Crown case against one accused is weaker than that against the co-accused, and where evidence admissible only against the co-accused directly implicates the first accused, the conditions for a separate trial may be established even without the case against the applicant being entirely weak.
- The "immeasurably stronger" element of the R v Middis test was satisfied here because the aunt's admission, coming from a witness with a close, lifelong relationship with her nephew, was likely to carry a weight and emotional resonance that a jury could not realistically set aside when considering the applicant.
- Button J expressly acknowledged that the task of fully taking evidence into account against one accused while disregarding it entirely against another is one that professional judges themselves would find difficult, let alone lay jurors in a murder trial.
- Inconvenience to the court system, including the loss of two to three weeks of trial time, does not automatically defeat an application for separate trials where positive injustice to an accused facing a charge carrying life imprisonment has been established.
Legislation and Cases Referenced
Cases:
- Assim v The Queen [1966] 2 QB 249
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- Guimond v The Queen (1979) 44 CCC 481
- Gulder v The Queen (1986) 8 NSWLR 12
- R v Baartman (Court of Criminal Appeal of New South Wales, 6 October 1994, unreported)
- R v Beavan (1952) 69 WN NSW 140
- R v Darby [1982] HCA 32; (1982) 148 CLR 668
- R v Dellapatrona; R v Duffield (1993) 31 NSWLR 123
- R v Ignjatic (1993) 68 A Crim R 333
- R v Lu; R v Pham [2007] NSWSC 1141
- R v Middis (unreported, Supreme Court of New South Wales, 27 March 1991)
- R v Pham [2004] NSWCCA 190
- Webb v The Queen; Hay v The Queen [1983] HCA 30; (1994) 181 CLR 41