Citation: R v Cage; R v Lowcock; R v Stamp [2024] NSWSC 78
Court: Supreme Court of New South Wales
Date: 9 February 2024
Judge: Yehia J
Background
Three accused were charged on an amended indictment with the murder of a man during an alleged armed robbery, and with taking a woman (referred to as AB) without her consent with intent to avoid detection by police. Two of the accused also pleaded guilty to intentionally destroying a motor vehicle by fire. All three pleaded not guilty to the murder and kidnapping counts.
The Crown alleged the accused participated in a joint criminal enterprise to rob the deceased, who was a drug supplier. The transaction was arranged through AB, a mutual acquaintance who believed she was facilitating a legitimate drug sale. The alleged murder occurred when the accused executed the robbery and one of them shot the deceased as he drove away.
One accused, Mr Cage, faced an additional count (Count 4) on the amended indictment: aggravated sexual assault of AB, in circumstances where he allegedly deprived her of her liberty before committing the offence. That count was entirely separate in nature from the robbery and murder allegations. All three accused applied by Notice of Motion to have Count 4 severed from the indictment.
Legal Issues
- Whether Count 4 (aggravated sexual assault) could be properly joined with the remaining counts under s 29 of the Criminal Procedure Act 1986 (NSW), on the basis that the offences arose out of the same set of circumstances or were part of a series of offences of the same or similar character.
- Whether, even if joinder were technically permissible, Count 4 ought to be heard and determined separately in the interests of justice under s 29(3) of the CPA.
- Whether joinder of Count 4 would result in "positive injustice" to any of the co-accused, including those not charged with that count.
Decision
Yehia J concluded that Count 4 should be severed and tried separately. The critical finding was that the aggravated sexual assault allegation bore no meaningful legal or factual connection to the murder, kidnapping, or vehicle destruction counts. Proof of Count 4 was entirely irrelevant to proof of the other counts, and vice versa. The count did not arise out of the same set of circumstances as the other offences, nor did it form part of a series of offences of the same or similar character within the meaning of s 29 of the CPA.
Even accepting the Crown's broad reading of the phrase "arise out of" in s 29(2)(b), the court was comfortably satisfied that the interests of justice required separate determination under s 29(3). The interests of justice in this context extend beyond the accused to encompass the Crown, witnesses, and the public. However, the prejudice flowing from joinder to the co-accused was found to be incapable of cure by judicial directions alone.
The court acknowledged that severance would impose real costs: witnesses would need to give evidence in two separate proceedings, and a further trial would involve additional time and expense. Those considerations were weighed seriously. Nonetheless, each accused had established that joining Count 4 would produce a "positive injustice," and severance was accordingly ordered.
Orders Made
- Count 4 severed from the indictment.
- A separate trial ordered for Count 4 to be conducted at Newcastle District Court on a date to be fixed.
- Count 4 adjourned for mention at Newcastle District Court on 14 March 2024, with the accused excused on that date if legally represented.
Key Takeaways
- Under s 29(3) of the Criminal Procedure Act 1986 (NSW), a court must order separate trials where joinder would produce a "positive injustice" to an accused, even where some inconvenience and cost to witnesses results from severance.
- The "interests of justice" under s 29(3) are not confined to the interests of the accused. They also encompass the interests of the Crown, witnesses, and the broader community, requiring the court to balance competing considerations.
- Where proof of one count is wholly irrelevant to proof of the remaining counts, and the offending is unrelated in character and circumstances, the threshold for severance is likely met.
- Prejudice to co-accused who face no direct connection to the severed count can itself constitute grounds for severance, particularly where judicial directions cannot adequately address that prejudice.
- The broad construction of "arise out of" in s 29(2)(b), confirmed by reference to Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160, did not assist the Crown here because the factual and legal distance between Count 4 and the other counts was simply too great to satisfy even that wide test.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 3, 20(1), 29(1), 29(2), 29(3), 290A, 291, 294(3)(a), 294C(1), 294CB
- Crimes Act 1900 (NSW), s 61J(1)
- Evidence Act 1995 (NSW), s 165
Cases:
- Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250
- Domican v R (1989) 43 A Crim R 24
- DS v R [2023] NSWCCA 151
- Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160
- FX v R; GX v R [2020] NSWCCA 189; 209 A Crim R 31
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- McNamara v the King [2023] HCA 36
- Osman v R [2006] NSWCCA 196
- R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529
- R v Bikic [2000] NSWCCA 106; 112 A Crim R 300
- R v CE [2005] NSWCCA 326
- R v Christou [1997] AC 117
- R v Darwiche [2006] NSWSC 929
- R v Early (No 4) [2023] NSWSC 505
- R v Hawkins; R v Garland [2023] NSWSC 1201
- R v Karimi; R v Khoury; R v Mir (No 1) [2013] NSWSC 156
- R v Qaumi & Ors (No 3) [2016] NSWSC 15
- R v Roach [2019] NSWCCA 160; 344 FLR 429
- Webb v R (1994) 181 CLR 41; [1994] HCA 30