AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 19 June 2015

R v Misiepo; R v Barnes

[2015] NSWSC 793

Assault & violenceHomicide
CRIMINAL LAW APPLICATION FOR SEPARATE TRIALS OF CO ACCUSED ACCUSED GENERALLY DESIRABLE THAT CO OFFENDERS BE TRIED TOGETHER

Citation: R v Misiepo; R v Barnes [2015] NSWSC 793
Court: Supreme Court of New South Wales
Date: 19 June 2015
Judge(s): Hall J

Background

The accused Misiepo faced a charge of murder arising from a fatal stabbing at Port Macquarie on New Year's Day 2014. The deceased sustained three stab wounds to the chest and abdomen, with the fatal wound penetrating the left ventricle. The Crown alleged that Misiepo inflicted the fatal wound with intent to cause death or grievous bodily harm.

His co-accused, Barnes, faced the lesser charges of unlawful killing or, in the alternative, assault occasioning actual bodily harm. The Crown alleged Barnes joined a criminal enterprise that was unlawful and dangerous, and that he made admissions of punching the deceased. Both accused entered not guilty pleas and were committed for trial.

The present application was brought by Misiepo, seeking a separate trial from Barnes under s 29(3) of the Criminal Procedure Act 1986. The dispute centred on whether certain evidence admissible against Barnes, but not against Misiepo, would cause such prejudice to Misiepo in a joint trial that justice required the proceedings to be separated.

  • Whether the court should exercise its discretion under s 29(3) of the Criminal Procedure Act 1986 to order separate trials for the co-accused.
  • Whether evidence proposed to be adduced against Barnes, including a police interview transcript and intercepted telephone conversations, was so prejudicial to Misiepo, even though inadmissible against him, that a joint trial would be unfair.
  • Whether jury directions would be sufficient to overcome any prejudice to Misiepo arising from that material.

Decision

The Crown proposed to tender three documents against Barnes: a transcript of a police station audio recording from 1 January 2014, a recording of Barnes speaking on the telephone on 8 January 2014, and a telephone intercept of a conversation between Barnes and a person called Brendan on 11 February 2014. Misiepo's counsel identified three categories of prejudice arising from this material: statements implicating Misiepo as the person who inflicted the stab wounds, statements indicating Barnes was fearful of Misiepo and of the consequences of speaking out against him, and statements touching on Misiepo's criminal antecedents.

The Crown offered to edit much of the prejudicial material from the documents, including references to Misiepo's prior criminal history and time in gaol. However, counsel for Barnes indicated he wished to retain certain passages explaining why Barnes had refused to name the other person involved, namely that Barnes feared the consequences of doing so. This left a residue of prejudicial material that could not be excised without harming Barnes' own defence.

Hall J concluded that the telephone intercept of 11 February 2014 was particularly damaging. Because it was a conversation between Barnes and a friend, it bore the character of an unguarded exchange, carrying greater persuasive weight with a jury than a formal police interview. The statement in that conversation, capable of conveying that Misiepo had in fact stabbed the deceased, was highly prejudicial to Misiepo even though it was not admissible against him. Additionally, statements suggesting that Barnes regarded Misiepo as a person with the character and disposition to inflict serious harm were found to compound the prejudice.

His Honour held that jury directions could not satisfactorily cure the prejudice. The cumulative effect of the material was that it would make a reasonably strong Crown case against Misiepo significantly stronger, and to allow a joint trial in those circumstances would occasion positive injustice. Accordingly, the discretion under s 29(3) was exercised in favour of ordering separate trials.

Orders Made

  • Separate trials ordered for Chad Frederick Misiepo (2014/5390) and Reece George Barnes (2014/425) pursuant to s 29(3) of the Criminal Procedure Act 1986.

Key Takeaways

  • Under s 29(3) of the Criminal Procedure Act 1986, a court may order separate trials where evidence admissible against one co-accused is inadmissible but highly prejudicial to another, and where that prejudice cannot be adequately addressed by jury directions.
  • While joint trials of co-offenders are generally desirable, the Supreme Court confirmed that the general preference gives way where a joint trial would occasion positive injustice to one accused.
  • The nature of the conversation matters: statements made in informal, unguarded exchanges between friends carry particular risk of disproportionate influence on a jury, beyond what formal police interview records might create.
  • Jury directions are not always an adequate remedy. Hall J found that even carefully crafted directions could not overcome the substantial prejudice arising from a combination of statements directly implicating Misiepo, expressing fear of him, and suggesting a disposition toward serious violence.
  • Partial editing of prejudicial material by the Crown does not necessarily resolve a separate trials application where the residual material, retained at the request of the co-accused for legitimate forensic reasons, remains seriously prejudicial to the other accused.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1) (murder and manslaughter), s 59(1) (assault occasioning actual bodily harm)
- Criminal Procedure Act 1986 (NSW), s 29(3) (power to order separate trials)

Cases
- Annakin v R (1988) 17 NSWLR 202
- R v Baartman (NSWCCA, 6 October 1994, unreported)
- R v Collie (1991) 56 SASR 302
- R v Glover (1987) 46 SASR 310
- R v Middis (NSWSC, 27 March 1991, unreported)
- R v Pham [2004] NSWCCA 190
- Webb and Hay v R (1994) 181 CLR 41