Citation: R v Sione; R v Dawson [2023] NSWSC 1594
Court: Supreme Court of New South Wales
Date: 15 December 2023
Judge(s): R A Hulme AJ
Background
Two accused were jointly charged with the murder of a 16-year-old boy at Doonside on 4 August 2021, with trial listed for February 2024. The Crown alleged that the first accused initiated the assault, lasting approximately 10 minutes, before leaving the premises and allegedly directing others to "finish off" the victim. A second phase of the assault, lasting a further 20 minutes and involving mostly juveniles including the second accused, followed. The victim died in hospital two days later.
The case against the first accused centred on his direct role in the initial assault and questions of causation arising from his departure before the fatal second phase. The case against the second accused was that she orchestrated the victim being lured to the house, was present during the second phase, filmed part of the assault, and intended it as punishment for the victim's alleged theft of her AirPods. She also intended to rely on the partial defence of substantial impairment by mental health or cognitive impairment under s 23A of the Crimes Act 1900 (NSW).
Both accused applied to be tried by a judge alone and, separately, to be tried apart from each other. The Crown opposed both applications. The court addressed the judge-alone question first, as its outcome would bear on the severance question.
Legal Issues
- Whether it was in the interests of justice under s 132(4) of the Criminal Procedure Act 1986 (NSW) to order a judge-alone trial for each accused, in the absence of the Crown's consent
- Whether complexity in the legal bases of liability and the factual issues warranted a judge-alone trial
- Whether the graphic and disturbing nature of video evidence of the assault created a risk that a jury could not remain sufficiently dispassionate
- Whether prejudicial but inadmissible evidence (admissible only against one accused) could be adequately managed by jury directions
- Whether the s 23A partial defence raised questions of "objective community standards" under s 132(5) that militated against a judge-alone trial
Decision
The court granted both applications for a judge-alone trial. Acting under s 132(4) of the Criminal Procedure Act, Hulme AJ concluded that the interests of justice favoured removing the jury, not because any single factor was conclusive, but because their combination created sufficient concern about the reliability of a jury process in this particular trial.
The court identified several compounding factors. First, the legal framework was unusually complex: the Crown pressed four separate bases of criminal liability, including direct responsibility, two forms of joint criminal enterprise, and constructive murder via a specially aggravated kidnapping. These were described as matters that even trained lawyers do not always find straightforward. Second, the factual issues carried a specific risk: jurors would have video recordings of the second phase of the assault but no recordings of the first, and there was a real risk they might improperly reason backwards from one phase to assess the nature of the other, analogous to what the court described as a "displacement effect" familiar from identification evidence cases.
Third, the court had itself viewed the mobile phone recordings in the course of sentencing proceedings for two juveniles involved in the second phase. It described them as "graphic and disturbing in depicting an unbridled and brutal group attack upon a cowering, vulnerable boy." While directions to a jury were available, the court found that the emotional impact of that material added to an already weighty combination of concerns. Fourth, certain evidence admissible only against one accused posed prejudice risks for the other. Most of this was manageable by direction, but one covertly recorded conversation involving the first accused and a third party was identified as particularly problematic, given it might be difficult to quarantine from the jury's assessment of disputed admission evidence.
On the s 23A partial defence and its reference to objective community standards, the court acknowledged that the second limb of that provision raises such questions. However, it treated this as one consideration among many rather than a decisive bar. The combination of factors across both cases ultimately led to the judge-alone orders being made.
Orders Made
- A trial by judge order was made in respect of each accused pursuant to s 132(4) of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- The Supreme Court confirmed that no single factor need be decisive in a judge-alone application under s 132(4): it is the cumulative weight of multiple factors that may tip the balance in favour of the interests of justice.
- Under s 132(5) of the Criminal Procedure Act, the presence of issues involving objective community standards (such as the second limb of the s 23A substantial impairment defence) does not automatically defeat a judge-alone application; it is a factor to be weighed alongside others.
- Graphic and disturbing video evidence does not, by itself, justify a judge-alone trial, but it can contribute meaningfully to the overall assessment, particularly when combined with factual complexity and legal intricacy.
- Where evidence is admissible against one co-accused only, jury directions will often suffice, but particular care is warranted where the inadmissible material is difficult to compartmentalise from closely contested factual questions.
- A risk analogous to the "displacement effect" in identification evidence can arise when a jury has recordings of one phase of an incident but not another, creating a danger of improperly inferring the unrecorded events from the recorded ones.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by mental health or cognitive impairment), s 86(3) (specially aggravated kidnapping)
- Criminal Procedure Act 1986 (NSW), s 132 (trial by judge order)
Cases:
No cases were cited by name in the judgment text provided.