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Supreme Court 7 June 2017

R v Spiteri-Ahern; R v Barber; R v Zraika

[2017] NSWSC 1275

HomicidePublic order & justice offences
CRIMINAL PROCEDURE APPLICATION FOR SEPARATE TRIALS APPLICATION FOR JUDGE ALONE TRIAL INTERTWINING OF EVIDENCE PRINCIPLES FOR APPLICATION ORDERS MADE.

Citation: R v Spiteri-Ahern; R v Barber; R v Zraika [2017] NSWSC 1275
Court: Supreme Court of New South Wales
Date: 7 June 2017
Judge(s): Rothman J

Background

Three accused were charged in connection with the shooting murder of Raymond Pasnin at Pendle Hill on 30 October 2013. A fourth person, Daniel Haile, had already been convicted of the murder following the first trial. The three remaining accused faced charges of murder (as a joint criminal enterprise), accessory before the fact, and concealing a serious indictable offence respectively, with the guilt of each accused interlinked with that of the others.

The three accused had previously stood trial alongside Haile before a jury in early 2016. That trial ended without verdicts being returned against them, after the jury was discharged when it could not reach a unanimous verdict on one of the accused. Subsequent applications for a permanent stay of proceedings were dismissed by both the trial court and the Court of Criminal Appeal.

Coming into the second trial, one accused applied for separate trials, and all three accused alternatively sought orders that the retrial proceed as a judge alone trial. The Crown opposed both applications.

  • Whether the three accused were entitled to separate trials to avoid unfair prejudice arising from evidence admissible only against some of them.
  • Whether, if separate trials were refused, it was in the interests of justice under s 132 of the Criminal Procedure Act 1986 to order a judge alone trial in circumstances where the Crown did not consent.
  • Whether, even in the absence of Crown consent, the court had power to order a judge alone trial and, if so, whether that power should be exercised.

Decision

Rothman J refused the applications for separate trials. The evidence against each accused was deeply intertwined: the Crown case against one accused typically required proof of the guilt of another, and key evidence (including listening device recordings and telephone intercepts) overlapped significantly across all three charges. Conducting three separate trials would impose a substantial burden on the court, the witnesses, and in particular the family of the deceased, all of whom would potentially be required to give evidence three times. This outcome could not be considered either sensible or in the interests of justice.

The judge acknowledged the general principle that jurors are capable of following directions to compartmentalise evidence admissible only against some accused. However, Rothman J concluded that the particular evidence in this case was of such high probative value, and so intertwined, that even proper directions would be unlikely to overcome the real risk of unfair prejudice. The concern was not merely theoretical: there was a reasonable apprehension that a jury might use evidence inappropriately, in a way that could reasonably colour the perception of a fair-minded observer that the trial had been conducted fairly.

In those circumstances, Rothman J found it was in the interests of justice to order a judge alone trial pursuant to s 132(4) of the Criminal Procedure Act 1986, which permits the court to make such an order without the prosecutor's agreement where the interests of justice so require. All three accused had filed the necessary elections and had received legal advice as required by the Act. The application for a judge alone trial was granted and the application for separate trials was refused.

Orders Made

  • Application under s 132(1) of the Criminal Procedure Act 1986 granted.
  • Trial to be conducted by judge alone.
  • Application for separation of the trials of each accused refused.

Key Takeaways

  • Under s 132(4) of the Criminal Procedure Act 1986, a court may order a judge alone trial without the prosecutor's agreement where it considers such an order to be in the interests of justice.
  • Where evidence is deeply intertwined across co-accused and is admissible only against some of them, the risk of unfair prejudice may be so significant that directions to the jury are an insufficient remedy.
  • A reasonable apprehension of unfairness, from the perspective of the accused or a fair-minded observer, is a relevant consideration in determining whether a judge alone trial serves the interests of justice.
  • Separate trials are not automatically the appropriate remedy for the problem of prejudicial but inadmissible evidence: the burden on witnesses, the court, and the family of a deceased victim forms part of the interests-of-justice calculus.
  • All three accused having made elections under s 132(1) and received the required legal advice were necessary prerequisites to the orders being made, even where the court was acting under its discretionary power in the absence of Crown consent.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 131, 132, 132A
- Supreme Court Rules 1970 (NSW), Part 75, Rule 3H

Cases
- Arthurs v The State of Western Australia [2007] WASC 182
- Barber v R; Zraika v R [2016] NSWCCA 125
- Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21
- R v Adams (No 2) [2016] NSWSC 1359
- R v Belghar [2012] NSWCCA 86
- R v Colin Maxwell Farrow [2014] NSWSC 1781
- R v Dean [2013] NSWSC 661
- R v Gittany [2013] NSWSC 1503
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259
- R v Stanley [2013] NSWCCA 124
- The Queen v Glennon (1992) 193 CLR 592; [1992] HCA 16