Citation: R v Lockett [2013] NSWSC 859
Court: Supreme Court of New South Wales
Date: 22 May 2013
Judge: Price J
Background
Four accused persons faced a joint murder charge arising from a fatal assault at a residential address in Mt Pritchard on 12 October 2010. The Crown alleged that all four, together with a fifth person who had already pleaded guilty to manslaughter, travelled together to confront the deceased over an unpaid debt for a firearm, and participated in a joint criminal enterprise to assault him with intent to cause grievous bodily harm.
The Crown's case against one accused, Lockett, went further than the joint enterprise. The Crown alleged that Lockett struck the deceased on the head with a firearm during the assault, causing the weapon to discharge and inflict a fatal wound. Two eyewitnesses described a blond male delivering the blow; the Crown identified that person as Lockett.
Lockett applied for a separate trial from two of his co-accused, Barnes and Brown. The basis of the application was that electronic records of interview (ERISPs) given by Barnes and Brown contained admissions that would be highly prejudicial to Lockett but were inadmissible against him.
Legal Issues
- Whether Lockett had demonstrated a real risk of positive injustice if tried jointly with Barnes and Brown.
- Whether the ERISPs of Barnes and Brown constituted material that was both inadmissible against Lockett and sufficiently prejudicial to him that jury directions alone could not guard against a miscarriage of justice.
- Whether the Crown case against Lockett would be made significantly stronger by exposure to that inadmissible material at a joint trial.
Decision
Price J applied the principles governing applications for separate trials as set out in R v Middis and approved by the Court of Criminal Appeal in Baartman and Georgiou. Under those principles, a separate trial will ordinarily be ordered where the evidence against the applicant is significantly weaker than that against the co-accused, the co-accused's evidence contains material highly prejudicial to the applicant but inadmissible against him, and there is a real risk that the Crown case against the applicant will be made significantly stronger by that prejudicial material.
His Honour found that the ERISPs of Brown and Barnes each contained admissions that supplied evidence of a critical fact otherwise absent from the Crown case: that Lockett knew, before and during the assault, that the object he was wielding was a firearm. That knowledge was directly relevant to the Crown's case that Lockett acted with intent to cause grievous bodily harm, and to the scope of the joint criminal enterprise he was said to have contemplated.
Price J also identified further prejudice arising from Brown's account of the number of times Lockett struck the deceased. Brown's ERISP corroborated the evidence of his own sister, Jasmine Psaroudis, who was the only Crown witness to describe Lockett striking the deceased multiple times. At a joint trial, Brown's counsel would be able to urge the jury to accept Psaroudis's evidence, with Brown's own inadmissible account effectively lending weight to it in the jury's deliberations.
His Honour concluded that clear and emphatic directions to the jury, limiting the use of each ERISP to the accused who made it, would be insufficient to prevent a miscarriage of justice. The risk of positive injustice to Lockett in a joint trial was real, not merely theoretical, and a separate trial was warranted.
Orders Made
- Lockett is to be tried separately from Barnes and Brown.
Key Takeaways
- The Supreme Court confirmed that the threshold for a separate trial is a demonstrated real risk of positive injustice at a joint trial, not merely theoretical or inconsequential prejudice.
- Where co-accused have made admissions in police interviews that supply evidence inadmissible against an applicant but directly relevant to a key factual issue in that applicant's case, those admissions can constitute the kind of highly prejudicial material that warrants severance.
- Corroborative prejudice is a relevant factor: inadmissible material that would support the testimony of a Crown witness creates a compounding risk that jury directions alone cannot adequately address.
- Applying R v Pham, the court treated the crucial question as the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case, not merely the relative strength of the Crown cases against the various accused.
- Limiting directions, while routinely relied upon in joint trials, are not always a sufficient safeguard; where inadmissible material is sufficiently prejudicial and the risk of misuse sufficiently real, separate trials remain the appropriate remedy.
Legislation and Cases Referenced
Cases:
- Webb v The Queen (1994) 181 CLR 41
- Regina v Jon Leslie Baartman (unreported, NSWCCA, 6 October 1994)
- Regina v Stephen Frederick Middis (unreported, NSWSC, 27 March 1991)
- Regina v Georgiou [1999] NSWCCA 125
- Regina v Pham [2004] NSWCCA 190
Legislation: No specific legislation was cited in the judgment.