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Supreme Court 30 April 2020

R v Newson; R v Cunneen (No 2)

[2020] NSWSC 462

Homicide
CRIMINAL PROCEDURE TRIAL SEPARATE TRIAL APPLICATION SEPARATE TRIAL GRANTED

Citation: R v Newson; R v Cunneen (No 2) [2020] NSWSC 462
Court: Supreme Court of New South Wales
Date: 30 April 2020
Judge: Ierace J

Background

The two accused faced charges arising from the death of a woman who disappeared in Muswellbrook on 30 September 2014. Her skeletal remains were found in nearby bushland approximately 22 months later. The first accused was charged with her murder, with the Crown alleging he killed her in a fit of jealousy. The second accused, a friend of the first who was residing in Muswellbrook at the time, was charged as an accessory after the fact to murder, on the basis that he assisted in transporting the body to where it was later discovered.

Both prosecution cases were circumstantial. A joint trial commenced in May 2019 but was aborted in July 2019 after a witness gave inadmissible evidence so prejudicial to the first accused that a jury direction to disregard it could not cure the unfairness. A fresh trial was scheduled for May 2020 but was ultimately vacated due to COVID-19 pandemic-related court directives.

Before the fresh trial could proceed, the second accused brought a renewed application for a separate trial. The application was based on material that included evidence arising from the aborted trial and was additional to that relied upon in an earlier application (which had been rejected, though reasons had not yet been delivered).

  • Whether the court should depart from its earlier pre-trial ruling refusing a separate trial, in the interests of justice under s 130A(3) of the Criminal Procedure Act 1986 (NSW)
  • Whether the evidence against the first accused was significantly stronger than, and different to, that admissible against the second accused
  • Whether evidence in the first accused's case was highly prejudicial to the second accused yet inadmissible against him
  • Whether that prejudicial evidence created a real risk that the Crown case against the second accused would be made immeasurably stronger in a joint trial, such that positive injustice would result

Decision

Ierace J considered the application against the framework established in R v Middis (1991) and explained in R v Pham [2004] NSWCCA 190. Under that framework, a separate trial will generally be ordered where the evidence against the applicant is significantly weaker than that against a co-accused, where the co-accused's evidence contains material highly prejudicial to the applicant but inadmissible against him, and where there is a real risk that this material would make the Crown case against the applicant immeasurably stronger. The applicant must demonstrate a real risk of positive injustice, not merely a remote possibility.

The court found that the Crown case against the second accused was significantly weaker than that against the first accused, and that evidence admissible only against the first accused contained highly prejudicial material referencing the second accused. In particular, an intercepted telephone conversation that appeared to reference the second accused by name ("Jimmy") was admissible against the first accused but not against the second. Ierace J concluded that while the jury could be directed to disregard that evidence in its direct effect, it would be impossible for many jurors to put the reference entirely out of their minds, and there was a real danger it would subconsciously infect the weight they gave to admissible evidence against the second accused during deliberations.

The court distinguished this evidence from other prejudicial material in the case, which it considered could be adequately addressed through appropriate jury directions. However, the character of the intercepted phone call meant that directions alone were insufficient to eliminate the risk of injustice. The application for a separate trial was accordingly granted.

Consistent with an undertaking given to the Chief Justice when the indictment was filed in the Supreme Court rather than the District Court, the decision to order a separate trial opened the way for the Director of Public Prosecutions to withdraw the indictment against the second accused from the Supreme Court and re-file it in the District Court.

Orders Made

  • The second accused is to be tried separately from the first accused on the charge of accessory after the fact to murder (s 349(1) of the Crimes Act 1900 (NSW))
  • The first accused's matter (murder under s 18(1)(a) of the Crimes Act 1900 (NSW)) stood over to the Arraignments List on 1 May 2020 for the fixing of a fresh trial date
  • The second accused's matter stood over to 6 May 2020

Key Takeaways

  • Under the principles in R v Middis, a separate trial will generally be ordered where evidence inadmissible against an applicant but admissible against a co-accused creates a real risk, as distinct from a remote possibility, that the Crown case against the applicant would be made significantly stronger through subconscious prejudice.
  • The Court confirmed, following R v Pham, that "immeasurably stronger" in the Middis framework does not require prejudice that is literally beyond measure; it is sufficient that the risk is real and incommensurable, with the potential to turn a possible acquittal into a conviction.
  • Jury directions are not always sufficient to cure prejudice arising from inadmissible evidence heard in a joint trial. Where a reference in intercepted communications could not realistically be put entirely out of jurors' minds, the Supreme Court found that directions fell short of adequately protecting the accused.
  • Section 130A(3) of the Criminal Procedure Act 1986 (NSW) permits a trial judge to depart from an earlier pre-trial ruling where, in the circumstances of a fresh proceeding, it would not be in the interests of justice for the earlier order to remain binding.
  • An exemption granted by the Chief Justice allowing a charge to be presented in the Supreme Court rather than the District Court may be subject to an undertaking that the indictment will be returned to the District Court if a separate trial is later ordered.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 21(2)(b), 130A(3)
- Crimes Act 1900 (NSW), ss 18(1)(a), 349(1)
- Bail Act 2013 (NSW), s 49

Cases:
- R v Middis (Supreme Court of NSW, Hunt J, 27 March 1991, unreported)
- R v Pham [2004] NSWCCA 190