Citation: R v Evans [2014] NSWSC 735
Court: Supreme Court of New South Wales
Date: 6 June 2014
Judge: Harrison J
Background
Three accused faced sentencing for the murder of a woman killed in a house fire in Wollongong on 27 October 2011. One accused had pleaded guilty to murder in June 2013, while the other two were convicted by a jury following a trial concluded in April 2014. All three were listed for sentencing on 3 and 4 July 2014.
The Crown proposed that all three sentencing hearings proceed concurrently before the same judge. The accused who had pleaded guilty did not oppose being sentenced immediately before or after the other two, but objected to the three matters being dealt with simultaneously. Her concern was that evidence led at the jury trial, or during the sentencing proceedings of her co-accused, might improperly influence findings made against her.
The areas of factual dispute in her case were significant: they included her intention at the time the fire was lit, and the extent to which she was the driving force behind the plan that led to the victim's death. Because these facts had not yet been fully agreed, she was concerned that the concurrent format created a real risk of cross-contamination of evidence.
Legal Issues
- Whether it was in the interests of justice for the three separate sentencing proceedings to be heard concurrently before the same judge.
- Whether a concurrent hearing created an unacceptable risk that the pleading accused would be sentenced on the basis of evidence not properly admissible against her.
- How to balance the desirability of the same judge sentencing co-offenders against the principle that each offender must be sentenced only on facts properly established in their own proceedings.
Decision
Harrison J dismissed the application for separate sentencing proceedings and ordered that all three hearings proceed concurrently. His Honour acknowledged the established principle that a sentencing judge must not sentence an offender on the basis of material that emerged in a co-offender's trial but was not in evidence against that offender. However, he found that this concern existed equally whether the proceedings were conducted together or in sequence.
His Honour observed that the pleading accused's concerns were "more apparent than real." Three separate and distinct proceedings would remain on foot regardless of the format. The principles governing admissibility would apply just as strictly in a concurrent hearing, and the court would be required in any event to keep careful track of which evidence was properly admissible against each accused.
The Crown's offer to make available for cross-examination any trial witness it intended to rely upon in the pleading accused's sentencing proceedings addressed the procedural fairness concern directly. Harrison J also accepted the Crown's submission that a concurrent format carried a positive advantage: both the pleading accused and one of the convicted co-accused were expected to argue conflicting accounts of who influenced whom in planning the murder. Cross-examination of each in the presence of the other would be procedurally fairer than receiving their evidence in isolation.
His Honour concluded that, provided no material was used in the pleading accused's sentencing that was neither agreed nor properly led in her case, the administration of justice was better served by conducting all three proceedings simultaneously.
Orders Made
• All three sentencing hearings should be heard at the same time
Key Takeaways
- The Supreme Court confirmed that the desirability of the same judge sentencing co-offenders is a well-established principle, but it does not automatically override procedural fairness concerns raised by one of the offenders.
- A concurrent sentencing hearing does not, of itself, create an impermissible risk of cross-contamination of evidence; the same risk of inadmissible material influencing findings exists in consecutive as well as concurrent proceedings.
- Where a pleading accused disputes key facts, the Crown's offer to make trial witnesses available for cross-examination in the sentencing proceedings can address procedural fairness concerns about reliance on evidence not directly led against that accused.
- Concurrent proceedings may carry a positive advantage where co-accused are expected to advance mutually contradictory accounts of contested facts relevant to sentence, allowing cross-examination of each in the other's presence.
- The overriding obligation remains unchanged: each offender must be sentenced only on facts that are agreed in their proceedings, or properly established by evidence led against them.
Legislation and Cases Referenced
Cases Cited:
- Dwayhi & Bechara [2011] NSWCCA 67
- Perrin v R [2006] NSWCCA 64
- R v H [2005] NSWCCA 282
- Rae v R [2011] NSWCCA 211
Legislation: No specific legislation was cited in the judgment.