Citation: R v Roff [2015] NSWSC 1853
Court: Supreme Court of New South Wales
Date: 14 December 2015
Judge(s): Hamill J
Background
Two accused were jointly indicted for the murder of a man who was reported missing in August 2013 and had not been seen since late July of that year. The prosecution alleged that the accused were in a sexual relationship, that the female co-accused was unhappy in her domestic relationship with the deceased, and that the two agreed to kill him. The Crown case was that the co-accused administered a sedative to the deceased and that the male accused then attended the premises and killed him, before disposing of the body while the co-accused took steps to conceal the crime.
At arraignment, both accused pleaded not guilty to murder. However, the co-accused also entered a guilty plea to the lesser charge of manslaughter, on the basis that she would assert a partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW). This partial defence, if established, reduces liability from murder to manslaughter.
The male accused applied for a separate trial under s 21(2)(b) of the Criminal Procedure Act 1986 (NSW). The central concern was that a recorded police interview given by the co-accused, which implicated both herself and the applicant, was admissible only in her trial and could not be used as evidence against him. The Crown opposed the application, arguing that the admissions in the interview were supported by other evidence and that any prejudice could be addressed by judicial direction to the jury.
Legal Issues
- Whether the applicant would suffer genuine prejudice or embarrassment if tried jointly with the co-accused, given the contents of her recorded police interview
- Whether a jury direction could adequately cure any prejudice arising from evidence admissible against one accused but not the other
- Whether the different issues arising in each accused's trial (particularly the co-accused's partial defence of substantial impairment) created a further ground for separation
- Whether the interests of justice, weighed against the inconvenience of duplicating evidence in separate proceedings, favoured a separate trial
Decision
Hamill J granted the application and ordered separate trials. His Honour acknowledged that joint trials are the norm in cases involving co-accused who allegedly acted together, and that appellate courts have repeatedly affirmed the capacity of juries to follow directions and compartmentalise evidence. However, those general principles did not resolve the particular difficulties presented in this case.
The co-accused's recorded interview ran to some 1,200 questions and answers. In it, she initially denied or minimised her own involvement before, as the circumstantial case was laid out to her by investigators, ultimately implicating both herself and the applicant. His Honour noted that this was a significantly different situation from a case where an accused, motivated by self-interest, seeks to shift blame to a co-accused. The admissions emerged in a context that lent them a particular quality of reliability, making them especially difficult for a jury to disregard in relation to the applicant.
A further complication arose from the co-accused's partial defence. The jury trying both accused would need to assess the substantial impairment defence, which necessarily involves detailed consideration of her mental state and conduct, while simultaneously determining the applicant's guilt on a straightforward denial of any involvement. His Honour found there was no practical mechanism by which a jury could assess the circumstantial case against the applicant, and consider whether inferences consistent with innocence existed, while at the same time applying a different legal framework to the co-accused based on the same underlying evidence.
His Honour accepted that separating the trials would result in some duplication of evidence and inconvenience to the Crown, police, and lay witnesses. Nonetheless, the prejudice and embarrassment to the applicant that would arise from a joint trial could not be cured by any direction, however clear, and the interests of justice required separate proceedings.
Orders Made
- The applicant is to be tried separately from the co-accused.
- The co-accused's trial was confirmed to proceed on 21 March 2016, with the applicant's trial to follow immediately thereafter.
- The file was referred to the Criminal List Judge for allocation of a trial judge, with a call-over to be arranged in February 2016 if required.
Key Takeaways
- The Supreme Court confirmed that while joint trials are ordinarily appropriate for co-accused who allegedly acted in concert, the discretion to order separate trials under s 21(2)(b) of the Criminal Procedure Act 1986 (NSW) will be exercised where prejudice cannot realistically be cured by direction.
- Where a co-accused's recorded interview is admissible only against that co-accused and contains statements implicating the applicant, the risk of prejudice is heightened and warrants close scrutiny rather than routine reliance on jury directions.
- Divergent issues at trial, particularly where one accused raises a partial defence requiring a distinct legal framework applied to the same factual evidence, can independently support a finding that a joint trial would be prejudicial.
- The strength of the Crown's circumstantial case against both accused was not, on its own, a sufficient reason to deny separate trials; the admissibility of the interview and the different legal questions in each trial were the decisive factors.
- Inconvenience to the Crown and witnesses from duplicating evidence across two trials, while a relevant consideration, did not outweigh the interests of justice in ensuring a fair trial for the applicant.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 21(2)(b) (power to order separate trials)
- Crimes Act 1900 (NSW), s 23A (partial defence of substantial impairment by abnormality of mind)
Cases: No specific cases were cited in the portions of the judgment available for review.