Citation: R v Bloodsworth; R v Errington (No 1) [2017] NSWSC 1482
Court: Supreme Court of New South Wales
Date: 19 October 2017
Judge: Adamson J
Background
Two accused, referred to here as Bloodsworth and Errington, stood charged jointly with the murder of the deceased, who was Errington's half-brother. The Crown alleged that both accused participated in a joint criminal enterprise to cause grievous bodily harm, involving assault and hogtying, which resulted in the deceased's death from positional asphyxia, blunt force head injury, or a combination of the two.
The joint trial commenced on 16 October 2017. On the fourth day, counsel for Errington applied for a separate trial. The application was, in substance, also an application to discharge the jury hearing the joint trial, since a grant of separate trials would have required that outcome.
The application was prompted by evidence given by a friend of the co-accused Bloodsworth, who recounted statements she had allegedly made to him. Those statements included an assertion that Errington had threatened her and her child unless she assisted in cleaning up after the killing.
Legal Issues
- Whether the evidence adduced against the co-accused Bloodsworth created prejudice to Errington that could not be cured by a judicial direction to the jury
- Whether the failure by Errington's counsel to object at the appropriate time affected the application
- Whether the accused Errington could receive a fair trial in a joint trial with Bloodsworth
Decision
Adamson J refused the application. The starting point, her Honour confirmed, is a presumption that co-accused alleged to have participated in a joint criminal enterprise should be tried together. Citing Webb & Hay v The Queen, her Honour noted that the risks created for one accused by evidence admissible only against a co-accused are ordinarily managed through clear and careful jury directions, and that this is a common feature of joint trials.
On the prejudice arising from the friend's evidence, her Honour accepted that the statements attributed to Bloodsworth, including the assertion that Errington had threatened her and her child, were not admissible against Errington and could not be tested by his counsel through cross-examination without potentially creating the impression that the evidence was relevant to his guilt. However, her Honour was satisfied this prejudice could be addressed by a direction to the jury as to the limited use of the evidence.
The second source of alleged prejudice concerned passages from another witness's statement that the Crown had not led in evidence. Those passages described Bloodsworth's drug use and domineering behaviour toward male associates. Errington's counsel complained that their omission created an imbalanced picture of the co-accused. Her Honour found that Errington's counsel had been in a position to raise this issue at the close of that witness's examination in chief, when it was plain the Crown did not intend to adduce those paragraphs. Counsel's silence at that point amounted to acquiescence in the Crown's forensic decision, and an accused is generally bound by the conduct of counsel. The proper course would have been to raise the issue with the trial judge in the absence of the jury so that admissibility could have been argued.
Her Honour concluded that Errington could receive a fair trial in the joint proceedings. She also observed that trying the two accused together was very much in the interests of justice given the way the Crown put its case against each of them.
Orders Made
• The application for the accused Errington to be tried separately was refused.
Key Takeaways
- The presumption in NSW is that co-accused charged with participation in a joint criminal enterprise should be tried together, with prejudice from cross-admissibility issues ordinarily managed through jury directions rather than by ordering separate trials.
- Where it is plain at the close of a witness's examination in chief that the Crown does not intend to lead certain evidence from that witness's statement, counsel for a co-accused must raise any objection at that time, preferably in the absence of the jury, rather than waiting until the witness has been excused.
- An accused is generally bound by the forensic decisions and conduct of their counsel, including the decision to remain silent when an objection could and should have been made.
- Refusing the separate trial application, the Supreme Court confirmed that the inability of one accused's counsel to cross-examine a witness about evidence that is only admissible against a co-accused does not, without more, require separate trials to be ordered.
- Sufficient prejudice to warrant discharge of a jury and separate trials requires more than the admission of unfavourable evidence concerning a co-accused; the critical question is whether the joint trial would produce a substantial miscarriage of justice.
Legislation and Cases Referenced
Cases:
- R v Fernando [1999] NSWCCA 66
- Webb & Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30
- R v Birks (1990) 19 NSWLR 677
Legislation: No specific legislation was cited in the judgment text.