Citation: R v Bloodsworth; R v Errington (No 4) [2017] NSWSC 1485
Court: Supreme Court of New South Wales
Date: 25 October 2017
Judge(s): Adamson J
Background
Two accused, Bloodsworth and Errington, were tried together for the murder or manslaughter of a deceased person. The Crown's case against both accused was put on the basis of joint criminal enterprise, with evidence implicating each in the acts that caused the death. The accused Errington accepted moral and physical responsibility for the death but contested the requisite mental element for murder and manslaughter, while the accused Bloodsworth's defence relied on an absence of direct physical participation.
During the summing-up phase, counsel for Bloodsworth sought a specific jury direction to the effect that the jury was bound to acquit Bloodsworth if it was not satisfied that a joint criminal enterprise existed. Counsel for Errington opposed the direction, and by the time the matter was formally refused, the Crown had also withdrawn its initial non-opposition.
Legal Issues
- Whether the court should give a direction that the jury was bound to acquit Bloodsworth if it was not satisfied of a joint criminal enterprise
- Whether such a direction would create an unfair imbalance between the two co-accused
- Whether the direction would impermissibly imply that the jury could use Errington's admissions in favour of Bloodsworth, contrary to section 83 of the Evidence Act 1995 (NSW)
Decision
The request for the direction:
Adamson J refused to give the direction sought on behalf of Bloodsworth. The Crown had consistently put its case on the basis that both accused played an active part in the killing, using language that implicated each of them individually and jointly (at [18]). There was evidence implicating Bloodsworth as a principal through her own admissions, not merely through any attributed acts of Errington (at [16], [20]).
Imbalance and unfairness to Errington:
Granting the direction would have created an unwarranted imbalance between the two accused. Errington's DNA had been detected on the ties used to hog-tie the deceased and on a pot also bearing the deceased's DNA, and the only basis for identifying him as the person who performed the physical acts was his own admissions made in a recorded interview and to a third party (at [15], [20]). A direction of the kind sought would have falsely implied that the jury could draw on those admissions in favour of Bloodsworth, when such admissions were inadmissible in her case (at [20]).
The section 83 prohibition:
Adamson J emphasised that the prohibition in section 83 of the Evidence Act 1995 on using one accused's admissions against another is fundamental to the fair trial of each accused in a joint trial. In circumstances where trials are heard together, the need to maintain and emphasise that distinction at all times is critical (at [20]). Giving the direction would have undermined that distinction rather than reinforced it.
Orders Made
- Refusal to give the direction sought on behalf of the accused Bloodsworth
Key Takeaways
- A direction sought for the benefit of one accused in a joint trial may be properly refused where it would create an unwarranted imbalance that causes unfairness to a co-accused (at [20]).
- Under section 83 of the Evidence Act 1995 (NSW), the prohibition on using one accused's admissions in the case of a co-accused is fundamental; as the Supreme Court confirmed, maintaining and emphasising that direction throughout a joint trial is critical to securing a fair trial for each accused (at [20]).
- Joint criminal enterprise operates as a form of principal liability and is distinct from the derivative liability of accessories before and after the fact, as affirmed in Osland v The Queen (at [19]).
- Where the Crown puts its case against multiple accused on the basis of joint criminal enterprise and evidence independently implicates each accused, a direction framed solely around the existence of a joint criminal enterprise may not accurately reflect the case each accused must meet (at [18], [20]).
- Admissions made by one accused in a recorded interview or to third parties remain inadmissible in the case of a co-accused, and a jury direction that carries even a false implication to the contrary will be refused (at [4], [20]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 83
Cases
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- R v Tangye (1997) 92 A Crim R 545
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32