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Supreme Court 19 September 2013

Regina v JP

[2013] NSWSC 1370

Homicide
CRIMINAL LAW APPLICATION FOR SEPARATE TRIAL EVIDENCE AGAINST CO ACCUSED INADMISSIBLE AGAINST APPLICANT SEPARATE TRIAL ORDERED

Citation: Regina v JP [2013] NSWSC 1370
Court: Supreme Court of New South Wales
Date: 19 September 2013
Judge(s): Hall J

Background

Two accused, identified as JP and JH, were jointly charged with the murder of a young man who died from head injuries sustained at a Halloween party in Bossley Park on 30 October 2010. The Crown alleged that a group of young males attended the party together and carried out a revenge attack on the deceased, who was suspected of having informed police about an earlier robbery.

The Crown's primary case against JP was that he personally wielded a wine bottle and struck the deceased over the head with it, shattering it. In support of this, the Crown pointed to circumstantial evidence including a witness account of JP picking up a bottle from the ground and the fact that JP was observed with a cut and bleeding hand after the assault, a wound the Crown attributed to the bottle breaking on impact.

JP applied for a separate trial from JH on the basis that certain evidence proposed to be led by the Crown against JH was inadmissible against JP, and that running the two cases together would cause him positive injustice.

  • Whether the evidence proposed to be led against co-accused JH was inadmissible against the applicant JP
  • Whether that inadmissible evidence bore directly on the central issue in the Crown case against JP, namely the identity of the person who wielded the bottle
  • Whether jury directions would be sufficient to prevent a miscarriage of justice in a joint trial
  • Whether there was a real risk of positive injustice to JP if tried jointly with JH, warranting a separate trial

Decision

Hall J found that the Crown's circumstantial case against JP was reasonably strong. The evidence included a witness account of JP picking up a bottle from the ground before the assault, and observations of a cut on his hand after the attack that had not been present beforehand. The Crown also relied on joint criminal enterprise liability as an alternative basis for conviction.

The critical difficulty was a piece of evidence from a witness identified as Ms Khokaz. That evidence was admissible only against JH and not against JP. However, it bore directly on the central factual question in the case against JP: the identity of the person who actually struck the deceased with the bottle. In the absence of any direct admissible evidence identifying JP as that person, the evidence against JH was the only material capable of directly addressing that question.

Hall J accepted the established principle that jury directions can, in appropriate cases, cure the prejudice arising from inadmissible evidence in a joint trial. However, his Honour concluded that this was not such a case. Because the Crown had no direct admissible evidence identifying JP as the bottle-wielder, the inadmissible material against JH effectively strengthened the Crown's case on the very issue it most needed to prove. Clear and emphatic directions to the jury would not be sufficient to eradicate that prejudice and avoid a miscarriage of justice.

Hall J concluded that there was a real risk of positive injustice to JP in a joint trial and ordered a separate trial.

Orders Made

  • JP be tried separately from co-accused JH.

Key Takeaways

  • A separate trial will be ordered where inadmissible evidence against a co-accused goes to the very heart of the Crown case against the applicant and no direct admissible evidence addresses the same issue.
  • Jury directions are not automatically sufficient to remedy the prejudice caused by inadmissible evidence in a joint trial. Where the inadmissible material fills an evidentiary gap in the Crown case against the other accused, directions may be incapable of preventing a miscarriage of justice.
  • The strength of the Crown's overall circumstantial case does not preclude a separate trial order. Here, even though Hall J assessed the Crown case against JP as reasonably strong, that finding reinforced rather than undermined the case for severance, because the inadmissible evidence made an already strong case stronger still.
  • The test applied was whether there was a real risk of positive injustice in a joint trial, consistent with the approach in cases such as R v Baartman, R v Taouk, and R v Lockett.
  • Where inadmissible evidence is the only material capable of directly addressing a central issue in the trial, its admission in a joint context creates a qualitatively different and more acute form of prejudice than inadmissible evidence that is merely peripheral.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW)

Cases:
- Ignjatic v R (1993) 68 A Crim R 333
- Madubuko v R [2011] NSWCCA 135
- Pham [2004] NSWCCA 190
- R v Baartman (NSWCCA, 6 October 1994, unreported)
- R v Domican (1989) 43 A Crim R 24
- R v Fernando [1999] NSWCCA 66
- R v Iskander [2011] NSWSC 1192
- R v Lockett [2013] NSWSC 859
- R v Middis (NSWSC, 27 March 1991, unreported)
- R v Patsalis (1999) 107 A Crim R 432
- R v Taouk (NSWCCA, 17 December 1992, unreported)
- Webb & Hay v R (1994) 181 CLR 41