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District Court 16 October 2018

R v Samandi

[2018] NSWDC 397

Domestic & family violencePublic order & justice offences
CRIME PROCEDURE SEPARATION OF COUNT FROM INDICTMENT UNRELATED CONDUCT RAISING CHARACTER “PREJUDICE IN CONDUCT OF DEFENCE”

Citation: R v Samandi [2018] NSWDC 397
Court: District Court of New South Wales
Date: 16 October 2018
Judge(s): Judge S Norrish QC

Background

The accused faced a 15-count indictment arising from an alleged course of domestic violence against his former partner. Fourteen of those counts alleged physical assaults, assaults occasioning actual bodily harm, sexual intercourse without consent, and property damage, all committed against the complainant between December 2015 and February 2017.

Count 5 stood apart. It alleged that on 4 May 2016, the accused made a false accusation to New South Wales Police that police officers had assaulted him and the complainant, knowing those officers to be innocent, with intent that they be the subject of an investigation. This charge arose from events two days after the alleged assault in count 4, when the accused purportedly self-inflicted injuries and then complained to a senior officer that the arresting police were responsible.

On the eve of trial, defence counsel brought a motion to separate count 5 from the indictment. The Crown opposed the application, arguing the counts arose from the same circumstances or a series of offences of a similar character, and that separation would cause unnecessary duplication of evidence in any subsequent trial.

Legal Issues

  • Whether count 5 could properly be joined with the remaining counts under section 29 of the Criminal Procedure Act 1986, on the basis that the offences arose from the same set of circumstances or were of the same or similar character.
  • Whether the accused would suffer prejudice in the conduct of his defence if count 5 were tried together with the other counts.
  • Whether separation of count 5 was required in the interests of justice under section 29(3) of the Criminal Procedure Act 1986.
  • Whether any prejudice arising from joinder could be remedied by appropriate jury direction.

Decision

Issue 1: Whether counts 4 and 5 arose from the same set of circumstances or a series of similar offences

The court rejected the Crown's primary argument that counts 4 and 5 arose out of the "same set of circumstances." While some evidence relevant to count 5 was also relevant to count 4, notably evidence explaining the complainant's injuries and her conduct when police arrived, the reverse was not true: not all evidence relevant to count 5 was relevant or admissible in relation to count 4 (at [43]). The court also found it could not be said the two offences were of the same or similar character, given that count 5 involved a fundamentally different inquiry, namely whether the accused knowingly made a false complaint against innocent police officers with dishonest intent, rather than whether he had committed an act of physical or sexual violence against the complainant (at [32], [64]).

Issue 2: Prejudice to the accused in the conduct of his defence

The court accepted the defence submission that the inquiry required for count 5 was not only different from count 4 but different in character from all other 14 counts on the indictment (at [57]-[58]). A conviction on count 5 would require the jury to make a positive finding of deliberate dishonesty by the accused, going beyond the injury allegations in count 4, and extending to injuries he allegedly self-inflicted (at [59]). This finding would colour the jury's assessment of the accused's credibility across all remaining counts in a way that could not be compartmentalised (at [60], [72]).

Issue 3: Whether jury direction could cure the prejudice

The court concluded that no coherent jury direction could adequately address the prejudice arising from joinder. Attempting to direct a jury to keep count 5 separate from the other counts would involve what the court described as mental gymnastics for both judge and jury, with the risk that prejudicial evidence admissible only on count 5 would infect the jury's reasoning on the other counts (at [65]-[67], [71]).

Issue 4: Duplication of evidence if count 5 were separated

The court gave limited weight to the Crown's argument that separation would cause significant duplication of evidence in a future trial. Because the complainant's evidence would be recorded both visually and by audio, her evidence given in the primary trial would be available for use in any subsequent prosecution of count 5, reducing the need for her to give evidence again to a narrow supplementary scope (at [68]). The court acknowledged some duplication from police witnesses but found this concern did not outweigh the grounds for separation.

Orders Made

  • Count 5 is separated from count 4 and the other counts in the indictment.

Key Takeaways

  • The District Court confirmed that joinder of counts under section 29 of the Criminal Procedure Act 1986 is not appropriate where evidence relevant to one count is not admissible on others, particularly where the nature of the factual inquiry on the joined count is fundamentally different from the remaining charges (at [32], [43], [64]).
  • Under section 29(3), separation of a count is warranted in the interests of justice where prejudicial evidence on one count cannot be confined to that count by jury direction, and no coherent direction can be fashioned to prevent the risk of misuse (at [71], [73]).
  • A count alleging a false complaint to police, requiring proof of knowing dishonesty, presents a materially different character from counts of physical and sexual violence against a complainant, even where those charges arise from closely related events, and that difference in character is relevant to severance decisions (at [57]-[58], [64]).
  • The prospect of duplicated evidence in a future separate trial carries limited weight where modern recording of witness evidence reduces the burden on complainants in subsequent proceedings (at [68]).
  • Where evidence flows only one way between joined counts, meaning all evidence on count A is relevant to count B but not vice versa, that asymmetry points against joinder and is not rescued by the fact of partial evidentiary overlap (at [43]-[45]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986

Cases
- R v Assim [1966] 2 QB 249
- BJS v The Queen [2011] NSWCCA 239
- De Jesus v The Queen [1986] HCA 65
- Harriman v The Queen (1989) 167 CLR 590
- Ludlow v Metropolitan Police Commissioner [1971] AC 29
- Mac v The Queen [2014] NSWCCA 24
- R v Quach [2002] NSWCCA 519
- R v Farrell & Cotton (1990) 48 A Crim R 311
- R v Kray [1970] 1 QB 125
- Ross v The Queen [2002] NSWCCA 207
- The Queen v Sutton (1982) 152 CLR 528
- Webb & Hay v The Queen (1994) 181 CLR 41