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Supreme Court 6 April 2018

R v Bechalany

[2018] NSWSC 420

Assault & violenceHomicideTheft & property
CRIMINAL LAW INDICTMENT CONTAINING THREE COUNTS

Citation: R v Bechalany [2018] NSWSC 420
Court: Supreme Court of New South Wales
Date: 6 April 2018
Judge(s): Hidden AJ

Background

The accused faced an indictment containing three counts: aggravated break and enter and commit a serious indictable offence (count 1), murder (count 2), and manslaughter as an alternative to murder (count 3). The aggravated break and enter charge arose from an alleged home invasion at the home of a drug supplier and creditor, during which the accused and five unidentified men forced entry, assaulted the occupant, and stole drugs and cash. The homicide counts arose from events the following morning, when the accused attended the same address and fatally stabbed a friend of the occupant who was present at the home.

The accused denied any involvement in the home invasion. On the homicide counts, he admitted stabbing the deceased twice in the leg but denied the requisite intent for murder, relying on self-defence. He accepted that his response was not objectively reasonable, and indicated an intention to plead guilty to manslaughter.

Before the court were two alternative applications by the accused: first, for all three counts to be tried by judge alone; and second, for count 1 to be tried separately from counts 2 and 3.

  • Whether evidence of the home invasion (count 1) would be admissible in the trial of the homicide counts (counts 2 and 3), such that a joint jury trial would not cause impermissible prejudice to the accused.
  • Whether, if a joint jury trial was not appropriate, the counts should be severed into separate jury trials or all tried together before a judge alone.
  • Whether the criteria for a judge-alone trial under section 132 of the Criminal Procedure Act 1986 were satisfied, given that the central issues of intent and self-defence require the application of objective community standards.

Decision

Hidden AJ first considered whether the home invasion evidence was sufficiently connected to the homicide counts to be admissible in a joint trial. The Crown argued that the home invasion was an act of intimidation linked to a debt dispute, and that the accused attacked the deceased the following morning because he perceived the deceased's presence as an expression of support for the occupant. The court rejected that inference as too speculative, noting there was no evidence of what was said between the accused and the deceased before the stabbing, and that the deceased's arrival at the home appeared unconnected to the accused's awareness or intentions.

The court accepted that a separate piece of evidence (an incident two weeks before the home invasion, in which the deceased had reported the accused's conduct to the occupant) might be admissible to establish motive for ill-will toward the deceased. However, that did not make the home invasion evidence itself admissible in the homicide trial. Accordingly, a joint jury trial of all three counts would carry a real risk of impermissible prejudice, and the first count was required to be tried separately.

On the question of trial by judge alone, the court noted that both intent and self-defence require the application of objective community standards, engaging the discretionary ground for refusal under section 132(5) of the Criminal Procedure Act 1986. The only reason the accused preferred a judge-alone trial was to avoid the prejudice that a joint jury trial would cause, and that prejudice could be adequately addressed by severing count 1. Efficiency alone is not a proper basis for ordering a judge-alone trial, and the court was not satisfied that justice required that course.

Orders Made

  • The application for trial by judge alone is refused.
  • Count 1 (aggravated break and enter) is to be tried separately from counts 2 and 3 (murder and manslaughter).

Key Takeaways

  • A joint jury trial of multiple counts is generally appropriate only where the evidence on each count is cross-admissible; where it is not, and a real risk of impermissible prejudice exists, severance will ordinarily be required, consistent with the principle stated in Sutton v The Queen (1984) 152 CLR 528.
  • The Supreme Court declined to draw the inference that the accused's motive for attacking the deceased was connected to the home invasion the previous night, finding the evidentiary foundation too thin to support that conclusion.
  • Under section 132(5) of the Criminal Procedure Act 1986, a judge-alone trial may be refused where the issues require the application of objective community standards; intent and self-defence both fell within that category here.
  • Administrative efficiency in consolidating multiple counts into a single judge-alone trial is not a valid consideration when assessing where the interests of justice lie, following R v Belghar [2012] NSWCCA 86.
  • Where the prejudice arising from a joint trial can be adequately addressed by severing a count, that severance will generally be preferred over an order for judge-alone trial based solely on avoiding that prejudice.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 132

Cases:
- Sutton v The Queen (1984) 152 CLR 528
- R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
- R v Villalon [2013] NSWSC 1516