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Supreme Court 3 April 2014

R v Hiroki

[2014] NSWSC 365

Homicide
CRIMINAL LAW SEPARATE TRIALS APPLICATION FOR ACCUSED ACCUSED

Citation: R v Hiroki [2014] NSWSC 365
Court: Supreme Court of New South Wales
Date: 3 April 2014
Judge(s): Garling J

Background

The applicant and her co-accused (a married couple) were jointly charged with the murder of a man who had been drinking with them at their home in Mt St Thomas on the evening of 27 July 2011. The victim was last seen alive in their company. When police later searched the premises, they found extensive bloodstaining consistent with the victim's DNA across multiple rooms, an apparent attempt to dig a grave beneath the house, and the victim's body was ultimately recovered following a formal police interview with the co-accused.

Each accused blamed the other for the death. The co-accused gave a recorded interview to police in which he claimed the applicant had struck the victim and later told him she had kept hitting the victim on the head. The applicant, for her part, gave a different account to others, including an account in which the co-accused had assaulted the victim. The co-accused was also charged as the principal murderer; the applicant faced the murder charge and, in the alternative, a charge of being an accessory after the fact to murder.

The applicant brought a motion seeking a separate trial, arguing that a joint trial would cause her a positive injustice. The Crown opposed the application.

  • Whether the applicant would suffer a positive injustice if tried jointly with the co-accused, such that separate trials should be ordered
  • Whether potentially prejudicial evidence admissible against the co-accused but not against the applicant created sufficient unfairness to justify separate trials
  • Whether the applicant's history of a violent relationship with the co-accused, and her fears of physical and psychological harm, were sufficient grounds to sever the trial
  • How the court should balance any prejudice to the applicant against the public interest in a joint trial, including the importance of a single jury seeing both accused when each blames the other

Decision

Garling J dismissed the application, finding that the applicant had not discharged the burden of establishing that she would suffer a positive injustice in a joint trial. The judge acknowledged that the legal test requires more than mere disadvantage or inconvenience: the applicant must demonstrate real and substantial prejudice rising to the level of positive injustice.

On the question of prejudicial evidence, the court was not satisfied that evidence admissible only against the co-accused would irreparably contaminate the jury's assessment of the applicant. The court noted that appropriate directions to the jury could address the risk of impermissible reasoning, and that such directions are routinely given and generally effective.

Regarding the applicant's fears about her violent relationship with the co-accused, Garling J found that the controlled environment of a courtroom, where both accused are separately incarcerated and proper physical arrangements can be made, sufficiently mitigated the risk of intimidation. The court also noted that if the applicant were to give evidence, she could do so via audio-visual link, with appropriate jury directions. In any event, the judge found no sufficient basis to translate the history of a violent domestic relationship into a justification for severing the trial in those circumstances.

The court weighed any residual disadvantage to the applicant against the strong public interest in a joint trial. Applying the principle expressed in R v Beavan, Garling J held that having a single jury see and hear all parties was of particular significance where each accused attributed blame to the other. That public interest substantially outweighed any prejudice to the applicant, even setting aside the additional public interest in avoiding the expense and inconvenience of two trials with largely overlapping evidence.

Orders Made

  • Motion dated 3 March 2014 for a separate trial is dismissed.

Key Takeaways

  • The applicable test for severing a joint trial is not mere disadvantage or inconvenience to an accused, but positive injustice: a real and substantial prejudice that cannot adequately be addressed within the joint trial framework.
  • Where co-accused each attribute blame to the other for an alleged crime, the public interest in having a single jury see and hear all parties carries significant weight in the balancing exercise, potentially outweighing considerable prejudice to an applicant.
  • A history of violence between co-accused does not automatically justify separate trials; the court found that the controlled environment of separately incarcerating accused persons and the availability of procedural safeguards (such as audio-visual link evidence) could adequately address risks of intimidation.
  • Evidence admissible against one co-accused but not another does not necessarily compel a separate trial; jury directions addressing impermissible reasoning remain a recognised and generally adequate response in joint trials.
  • The burden of persuasion rests on the applicant seeking separate trials, and that burden is not discharged by pointing to theoretical or speculative disadvantages.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 349(1) (accessory after the fact to murder)

Cases
- Ali v R [2005] HCA 8; (2005) 79 ALJR 662
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- R v Assim [1966] 2 QB 249
- R v Baartman (NSWCCA, unreported, 6 October 1994)
- R v Beavan (1952) 69 WN (NSW) 140
- R v Dellapatrona (1993) 31 NSWLR 123
- R v Fernando [1999] NSWCCA 66
- R v Lu; R v Pham [2007] NSWSC 1141
- R v Middis (NSWSC, unreported, 27 March 1991)
- R v Pham [2004] NSWCCA 190
- Ross v R [2012] NSWCCA 207
- Webb v The Queen; Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41