Citation: R v MR, JB and CS (young persons) [2024] NSWSC 194
Court: Supreme Court of New South Wales
Date: 4 March 2024
Judge: Huggett J
Background
Three young persons, identified only as MR, JB and CS, were jointly charged with the murder of a 16-year-old (AS) at a residential gathering in Ropes Crossing in the early hours of 4 June 2022. The Crown alleged that MR fatally stabbed the deceased in the chest during a pursuit following an altercation, while JB and CS participated by chasing and assaulting the deceased. All three accused were teenagers at the time of the offending.
Both JB and CS applied for their trials to be severed from the joint trial, each arguing that proceeding together would cause them positive injustice. The Crown opposed both applications.
Legal Issues
- Whether the joint trial of JB would cause him positive injustice, particularly given the risk that the jury would use CCTV evidence and co-accused MR's incriminating statements against JB.
- Whether the joint trial of CS would cause him positive injustice, particularly in light of evidence admissible against MR and JB but not against CS.
- How the court should manage the admissibility and presentation of the CCTV evidence, including the use of a transcript, in the context of a joint trial.
Decision
Huggett J refused both severance applications. The governing principle, drawn from the authorities, is that a joint trial will not be severed merely because some prejudice arises from the joinder. The applicant must demonstrate that the prejudice is so significant it will produce positive injustice. The court found that neither JB nor CS met that threshold.
In relation to JB, the key concern was the CCTV recording in which MR is alleged to say, "Told ya cuz. I told ya I was gonna stab him. I got him good," while in the company of JB shortly after the stabbing. MR did not contest the admissibility of this evidence against himself. JB, however, argued that the jury could not avoid using it against him as well. The court did not resolve the admissibility of the CCTV evidence against JB at this stage, but found that any prejudice could be adequately managed by appropriate jury directions, including a limiting direction if necessary.
Regarding CS, the court accepted that much of the most damaging evidence, including the CCTV recording and the telephone intercepts involving MR and his mother, was not sought to be led against CS. However, the court found that the risk of spillover prejudice from that evidence did not rise to the level required to justify a separate trial. Proper directions to the jury were considered a sufficient safeguard.
On the CCTV evidence more broadly, Huggett J indicated that the recording would be played only to the point of MR's alleged statement, and the jury would be directed that the audio thereafter was indecipherable and they must not speculate. This approach reflected concerns, drawn from prior Supreme Court decisions, about the risks of priming and suggestibility if a contested transcript were provided, and the risk identified in Askarou v R that audible but un-transcribed material might be effectively ignored.
Orders Made
- The application by JB for a separate trial is refused.
- The application by CS for a separate trial is refused.
- Three additional jurors to be empanelled pursuant to ss 19(2) and 19(3) of the Jury Act 1977 (NSW) and s 5 of the Jury Regulation 2022 (NSW).
Key Takeaways
- The established test for severance requires more than generalised prejudice from a joint trial. An applicant must demonstrate that the prejudice will produce positive injustice, a threshold that is deliberately high.
- Where incriminating statements by one co-accused are admissible only against that co-accused, the risk of the jury misusing that evidence against another co-accused is generally managed by limiting directions rather than severance.
- Refusing both applications, the Supreme Court affirmed that jury directions remain the primary mechanism for addressing prejudice arising from jointly admissible and separately admissible evidence in multi-accused trials.
- In relation to contested CCTV recordings with disputed audio quality, the court flagged the competing risks of priming and suggestibility on one hand, and the risk identified in Askarou v R of audible evidence being effectively overlooked on the other, leaving the admissibility of the recording against JB to be resolved at trial.
- The court accepted, for the purpose of the severance application only, that JB was entitled to a good character direction, while noting the question remained to be formally determined.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 21(2)
- Evidence Act 1995 (NSW), s 55
- Jury Act 1977 (NSW), ss 19(2), 19(3)
- Jury Regulation 2022 (NSW), s 5
Cases:
- Askarou v R [2023] NSWCCA 246
- McNamara v The King [2023] HCA 35
- Pham v R [2006] NSWCCA 3
- R v Bushell; R v Tozer (No 6) [2021] NSWSC 750
- R v Dirani (No 8) [2023] NSWSC 70
- R v Hawat (No 5) [2019] NSWSC 1727
- R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unreported)
- Webb & Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30