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Supreme Court 25 September 2025

R v Fitton

[2025] NSWSC 1103

HomicidePublic order & justice offences
CRIMINAL PROCEDURE TRIAL APPLICATION FOR SEPARATE TRIAL

Citation: [2025] NSWSC 1103
Court: Supreme Court of New South Wales
Date: 25 September 2025
Judge(s): Chen J

Background

Daniel Fitton and Mark Peckham were jointly indicted in connection with the alleged murder of George Kirk on or about 16 August 2023 in Dubbo, NSW. Peckham was charged with murder (count 1), while Fitton faced three charges of hindering the apprehension and investigation of Peckham: driving Peckham from the crime scene (count 2), taking possession of the alleged murder weapon (count 3), and directing another person to clean the vehicle used to leave the scene (count 4).

The Crown case against Peckham was put on three alternative bases: direct responsibility for the stabbing, joint criminal enterprise with Fitton to assault the deceased, or extended joint criminal enterprise. Notably, however, the Crown did not contend that Fitton was liable for murder. Fitton's case was that he remained in his vehicle outside and did not enter the premises, meaning the critical issue at trial would be his state of knowledge when he drove Peckham away.

Fitton applied under s 21(2)(b) of the Criminal Procedure Act 1986 (NSW) for an order that he be tried separately from Peckham, arguing that a joint trial would cause "positive injustice."

  • Whether Fitton should be granted a separate trial under s 21(2)(b) of the Criminal Procedure Act 1986 (NSW).
  • Whether the Crown's reliance on joint criminal enterprise as an alternative basis for Peckham's murder charge created impermissible prejudice to Fitton, given the jury might attribute physical acts in the murder to him.
  • Whether alleged inconsistencies in the accounts of the central Crown witness, Tammy Antaw, across three police interviews generated prejudice that could not be addressed by judicial direction.
  • Whether the jury would be unable to "compartmentalise" evidence admissible only against Peckham when considering the charges against Fitton.

Decision

Chen J refused Fitton's application for a separate trial. The judgment addressed the established legal principles governing applications for severance, including the requirement (drawn from authorities such as Webb v The Queen and R v Patsalis (No 1)) that the applicant demonstrate "positive injustice" rather than mere embarrassment or inconvenience arising from a joint trial.

On the question of the joint criminal enterprise directions, the Court found that the Crown's alternative bases for Peckham's murder did not, of themselves, create positive injustice to Fitton. The Crown had made clear it was not contending Fitton was liable for murder. Any risk of the jury conflating the JCE case against Peckham with the accessory charges against Fitton was capable of being addressed through appropriate judicial directions.

Regarding the alleged inconsistencies in Tammy Antaw's evidence, the Court was not persuaded that these rose to the level of generating irremediable prejudice. While Fitton pointed to differences across Antaw's three police interviews (with the first two interviews identifying Peckham alone as the assailant, and the third suggesting some physical involvement by Fitton), the Court considered that these were matters for cross-examination and jury assessment at trial, and did not establish that a joint trial would be unfair.

The Court concluded that any potential prejudice arising from the joint trial was capable of nullification by appropriate judicial directions to the jury. Fitton had not discharged the burden of demonstrating positive injustice.

Orders Made

  • The application by Fitton for a separate trial, pursuant to s 21(2)(b) of the Criminal Procedure Act 1986 (NSW), was refused.
  • The joint trial of Fitton and Peckham remained listed for 23 February 2026.

Key Takeaways

  • The Supreme Court confirmed that the test for severance requires demonstration of "positive injustice," not merely that a joint trial would be disadvantageous or cause some degree of embarrassment to the applicant.
  • Where the Crown pursues alternative bases of criminal responsibility (including joint criminal enterprise) against one co-accused but not another, this does not automatically warrant separate trials, provided appropriate judicial directions can address any risk of prejudice.
  • Inconsistencies in a central Crown witness's accounts across multiple police interviews were treated as matters for cross-examination and jury evaluation, rather than a ground establishing the impossibility of a fair joint trial.
  • In refusing the application, the Court applied the established principle that judicial directions to a jury are ordinarily considered sufficient to address the risk that evidence admissible against only one co-accused may be improperly used against another.
  • The relatively uncommon configuration of a murder accused tried jointly with a co-accused charged only with accessory-after-the-fact style offences did not, in the Court's assessment, inherently require severance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 315(1)(a), 315(1)(c), 319
- Criminal Procedure Act 1986 (NSW), s 21(2)(b)

Cases:
- Ali v The Queen (2005) 214 ALR 1; [2005] HCA 8
- Allen v R [2020] NSWCCA 173
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- Hamilton (a pseudonym) v R [2020] NSWCCA 80
- McNamara v The King (2023) 280 CLR 201; [2023] HCA 36
- R v Assim [1966] 2 QB 249
- R v Bikic [2000] NSWCCA 106; (2000) 112 A Crim R 300
- R v Dellapatrona & Duffield (1993) 31 NSWLR 123
- R v Fernando [1999] NSWCCA 66
- R v Oliver (1984) 57 ALR 543
- R v Patsalis (No 1) [1999] NSWSC 649; 107 A Crim R 432
- Ross v The Queen [2012] NSWCCA 207
- Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30