Citation: R v Campbell; R v Waters (No. 2) [2023] NSWDC 627
Court: District Court of New South Wales
Date: 7 June 2023
Judge: Mahony SC DCJ
Background
Two co-accused faced a joint trial on charges of conspiring to import and conspiring to possess a commercial quantity of cocaine, contrary to the Criminal Code Act 1995 (Cth). One accused (Campbell) pleaded not guilty to both counts. The other (Waters) pleaded not guilty to the importation count but entered a qualified guilty plea to the possession count, disputing the precise date range of his involvement.
During opening addresses, Senior Counsel for Waters told the jury that his client had acted under threats to his own life and to the lives of his wife and infant child, but that Waters accepted the defence of duress was nonetheless unavailable to him. The reason offered was that, despite those fears, he had not attempted to contact police.
Campbell's counsel then applied to discharge the jury and sought a separate trial. The argument was that Waters' opening had prejudiced Campbell's ability to run his own duress defence uninhibited, because both the Crown and a co-accused were now effectively signalling to the jury that a failure to go to the police undermined a duress claim.
Legal Issues
- Whether the opening address by Waters' Senior Counsel, disavowing duress on the basis that his client had not gone to the police, created prejudice or embarrassment to Campbell's ability to independently run a duress defence.
- Whether that prejudice, if any, warranted discharge of the jury or a separate trial under s 21 of the Criminal Procedure Act 1986 (NSW).
- Whether adequate jury directions could sufficiently address any risk of impermissible prejudice in a joint trial.
Decision
Mahony SC DCJ refused the application. The court held that Waters' Senior Counsel had expressly qualified his remarks by reference to Waters' own circumstances. That qualification made clear the disavowal of duress was personal to Waters and did not foreclose the same defence being run by Campbell on different facts.
The court noted that the onus under s 10.2 of the Criminal Code Act 1995 (Cth) would fall on the Crown to disprove duress beyond reasonable doubt. Campbell therefore remained in no worse a legal position to raise the defence than he would have been in a separate trial.
The court also found this was not a situation involving the risk of inadmissible evidence being misused by the jury. Any residual risk of prejudice could be adequately addressed through jury directions, consistent with the principle from De Jesus v R (1986) and Sutton v R (1984) that juries are assumed to follow directions given to them.
The joint charges were described as inextricably interrelated, with Count 2 following chronologically upon Count 1, making joinder appropriate. The surprise Campbell's counsel expressed at Waters entering a guilty plea was noted, but the court did not accept that surprise translated into legally cognisable prejudice sufficient to warrant severance.
Orders Made
- The application for discharge of the jury and for a separate trial was refused.
Key Takeaways
- The District Court confirmed that a co-accused's decision to disavow a particular defence does not, without more, prevent another accused from running that same defence independently in a joint trial.
- Under s 10.2 of the Criminal Code Act 1995 (Cth), the onus lies on the Crown to disprove duress beyond reasonable doubt once the issue is raised, and that onus is unaffected by a co-accused's stance on the same defence.
- A separate trial under s 21 of the Criminal Procedure Act 1986 (NSW) is not warranted merely because a co-accused's counsel makes statements in opening that are potentially unhelpful to another accused's defence strategy.
- Adequate jury directions are generally considered sufficient to guard against impermissible prejudice arising from a joint trial, in line with the High Court's approach in De Jesus v R and Sutton v R.
- Where charges against co-accused are inextricably interrelated, joinder in a single indictment is appropriate, and the bar for severance remains high.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), s 10.2 (duress)
- Criminal Procedure Act 1986 (NSW), ss 20, 21
Cases:
- De Jesus v R (1986) 68 ALR 1
- Kamm v R [2007] NSWCCA 201
- Sutton v R (1984) 152 CLR 528