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Supreme Court 4 June 2014

R v Hines (No 1)

[2014] NSWSC 701

Assault & violenceHomicide
CRIMINAL LAW EVIDENCE SEVERANCE OF COUNTS ASSAULT OCCASIONING ACTUAL BODILY HARM SEPARATE TRIAL MURDER

Citation: R v Hines (No 1) [2014] NSWSC 701
Court: Supreme Court of New South Wales
Date: 4 June 2014
Judge: Hamill J

Background

An accused faced a three-count indictment ahead of a trial in Broken Hill scheduled for June 2014. The first count was murder, arising from a fatal stabbing in Wilcannia in the early hours of 19 February 2013. The second and third counts were charges of assault occasioning actual bodily harm against two other individuals, Teegan Jones and an 11-year-old child, Caylan Jones.

The central issue at the murder trial was anticipated to be the accused's state of mind at the time of the killing, with self-defence, excessive self-defence, and provocation all in play. The act causing death was not in dispute: the accused had produced a knife and stabbed the deceased during a confrontation.

The accused applied by notice of motion to sever the two assault counts from the indictment, seeking separate trials on each. The basis of the application differed significantly as between the two counts, and Hamill J considered them separately.

  • Whether evidence of an assault on Teegan Jones, occurring approximately two and a half hours before the fatal stabbing, was admissible at the murder trial as "transactional" evidence relevant to the accused's state of mind.
  • Whether count 2 (assault of Teegan Jones) should be severed from the indictment under s 21 of the Criminal Procedure Act 1986 (NSW), particularly if the underlying evidence was inadmissible.
  • Whether count 3 (assault of Caylan Jones, occurring immediately proximate to the stabbing) should be severed from the indictment on the basis that a joint trial would prejudice or embarrass the accused in his defence.
  • Whether the different mental elements required to prove counts 1 and 3 (intent for murder versus recklessness for the assault) created a risk of jury confusion justifying severance.

Decision

Count 2: Severance granted. Hamill J held that evidence of the assault on Teegan Jones, which occurred around 10:30 pm (roughly two and a half hours before the killing), was not admissible at the murder trial. The Crown relied on the evidence as transactional evidence going to the accused's state of mind, drawing on the High Court's decision in O'Leary v The King (1946) 73 CLR 566. His Honour accepted that prior acts of violence can in some circumstances be relevant to an accused's state of mind at the time of a charged offence, but found the circumstances here insufficient to justify admission. Because the evidence was inadmissible, severance of count 2 necessarily followed, and the evidence relating to that count was excluded.

Count 3: Severance refused. The assault on the child Caylan Jones occurred within seconds of the stabbing. The accused's counsel conceded that evidence of this incident was admissible in the murder trial in any event. Hamill J found no relevant prejudice or embarrassment to the defence arising from a joint trial. The witnesses to both offences were the same, and the acts giving rise to counts 1 and 3 were virtually simultaneous.

On the question of different mental elements, the Crown confirmed it was not relying on reckless indifference to human life for the murder charge. Accordingly, the concept of recklessness would arise only in the context of the assault charge, and no risk of jury confusion was identified. The application to sever count 3 was refused.

Orders Made

  • Count 2 (assault occasioning actual bodily harm of Teegan Jones) is severed from the indictment, with a separate trial to be held on that count.
  • Evidence of the events giving rise to count 2 is excluded from the murder trial.
  • The application for severance of count 3 (assault occasioning actual bodily harm of Caylan Jones) is refused.

Key Takeaways

  • Prior acts of violence by an accused can be admissible as transactional evidence relevant to state of mind in a murder trial, but proximity in time and connection to the charged act are critical factors in determining admissibility.
  • Under s 21 of the Criminal Procedure Act 1986 (NSW), severance is warranted where a joint trial would prejudice or embarrass the accused in conducting a defence; however, mere differences in the seriousness of counts or the involvement of a child victim are not automatically sufficient to establish that prejudice.
  • Where evidence underlying a separate count is in any event admissible in the principal trial, severance of that count is unlikely to succeed solely on the basis of general prejudice.
  • The Crown's reliance on O'Leary v The King was noted to have limitations in the present context: that decision concerned identity rather than intent, though Hamill J acknowledged that subsequent authority confirmed prior violent acts can also bear on state of mind.
  • Differing mental elements across counts on a joint indictment (here, intent and recklessness) do not automatically generate jury confusion warranting severance, particularly where the Crown's case on the primary charge does not itself engage the alternative mental element.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23, 421
- Criminal Procedure Act 1986 (NSW), s 21
- Evidence Act 1995 (NSW), ss 97, 137

Cases
- Bull v The Queen (2000) 201 CLR 443
- De Jesus v The Queen (1986) 61 ALJR 1
- HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16
- Jiang v R [2010] NSWCCA 277
- LJW v R [2010] NSWCCA 114
- O'Leary v The King (1946) 73 CLR 566
- Phillips v The Queen (2006) 225 CLR 303
- R v Adam (1999) 106 A Crim R 510
- R v Barton [2004] NSWCCA 229
- R v Mostyn (2004) 145 A Crim R
- R v Venna [1976] QB 421
- Sutton v The Queen (1984) 152 CLR 528
- Tully v The Queen [2006] HCA 56, 230 CLR 234
- TWL v R [2012] NSWCCA 57