HIDDEN AJ: The accused, Robert Jack Bechalany, is to face trial on an indictment charging him with aggravated break and enter and commit serious indictable offence (count 1), murder (count 2) and, in the alternative, manslaughter (count 3). Before me is an application by the accused for trial by judge alone or, alternatively, that the first count be tried separately from the trial of the second and third counts.
For the purpose of the application the parties were agreed that I should have regard to the Crown case statement which has been filed, and I received in evidence a recorded interview by police of Mr Peter Barbara, the alleged victim of the aggravated break and enter offence, and some CCTV footage of the incident giving rise to counts 2 and 3, to which I shall refer as the "homicide counts".
[2]
Crown case
Put shortly, it is the Crown case that the accused had frequently bought amphetamines from Mr Barbara at Mr Barbara's home at St Clair. In addition, a few months before the events giving rise to the trial, Mr Barbara had lent the accused about $30,000. That loan remained unpaid, it became the subject of argument, and their relationship soured.
In the evening of 13 April 2015, the accused and five unidentified men broke through the front door of Mr Barbara's home. The accused and some of the other men assaulted Mr Barbara, causing him significant injuries. One of the unknown men seized amounts of methylamphetamine and $1,000 in cash. This was the conduct constituting the first count, aggravated breaking and entering and committing a serious indictable offence, being the infliction of actual bodily harm on Mr Barbara, the circumstance of aggravation being that the accused was in the company of the other men. It is convenient to refer to this offence as the "home invasion".
R v Bechalany [2018] NSWSC 420 | Case summary | Zoe
In the small hours of the following morning, a friend of Mr Barbara, Luke Browning, sent a text message to him asking if he could come to the home. Mr Barbara said that he could and he did so, staying overnight. Later that morning he and Mr Barbara discussed what had happened the night before.
The homicide counts arise from events that same morning when the accused went to Mr Barbara's home. He spoke to Mr Barbara, telling him not to say anything about what had occurred the previous night. He left the home, but returned shortly afterwards and asked to speak to Mr Browning. Mr Browning came out of the home and the two of them had a conversation on the footpath outside. During the conversation the accused pushed Mr Browning to the chest, causing him to stumble, then chased Mr Browning towards a neighbouring property and back towards the front yard of Mr Barbara's home. There he kicked Mr Browning and stabbed him. Much of this can be seen in the CCTV footage, captured by a camera at Mr Barbara's home.
Mr Browning ran from the location of the offence, but collapsed in parkland at St Clair. He was unable to be resuscitated and was pronounced dead in the early afternoon. A post-mortem examination revealed a number of injuries, but for present purposes the significant injury was a stab wound to the right thigh which had severed femoral vessels and caused severe haemorrhage. Also observed was a cut to the back of the right lower leg, causing soft tissue injuries and subsequent haemorrhage. The cause of death was determined to be blood loss from the injury to the right thigh.
[3]
The accused's case
The accused's case is that he was not involved in the home invasion at Mr Barbara's home in any way; nor was he a recipient of drugs or the beneficiary of a loan from Mr Barbara. As to the homicide counts, he admits having stabbed the deceased twice in the right leg but denies having done so with the intent to kill or to cause grievous bodily harm. Alternatively, if that intent were established, he believed that it was necessary to stab the deceased in order to defend himself but acknowledges that his conduct was not a reasonable response to the circumstances as he perceived them. On either basis he admits his guilt of manslaughter, and intends to plead guilty to the third count.
[4]
The applications
The accused's alternative applications for trial by judge alone or severance of the first count are made on the same basis. His counsel, Mr Pontello, argued that the evidence of the home invasion would not be admissible in proof of the homicide, and that the joint trial of the counts would cause prejudice to the accused which is impermissible and which could not be averted by directions to a jury. Impermissible prejudice would not be an issue, Mr Pontello argued, if the trial were by judge alone. It is convenient to consider first whether all three counts could properly be tried together before a jury. If not, it would be necessary to consider whether there should be separate jury trials or a trial of all three counts by judge alone.
Undoubtedly, evidence that the accused had been involved in a serious home invasion could be prejudicial in a jury's consideration of the homicide counts, and there was common ground that the trial of all three counts before a jury could be justified only if the evidence of the home invasion would be admissible in proof of the other counts. As Brennan J put it, in Sutton v The Queen (1984) 152 CLR 528 at 542:
"Where the evidence admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the sound exercise of the discretion generally (if not universally) requires a direction for separate trials ... ."
That observation was made in the context of a case involving a number of counts of sexual assault, where the issue was whether the evidence of each count was admissible in proof of the others as similar fact evidence, but it remains a useful guide for the exercise of the discretion in a case such as the present.
The Crown prosecutor submitted that there was a link between the evidence of the two crimes, such that evidence of the home invasion was directly relevant to, and highly probative of, the homicide counts.
There will be evidence from Mr Barbara that about 45 minutes before the home invasion occurred, he spoke to the accused on the phone, asking him for the money he was owed. The Crown prosecutor argued that it could be inferred that the home invasion was an attempt on the part of the accused to intimidate Mr Barbara, so that he would not pursue repayment of the loan.
In his recorded interview with police, Mr Barbara also recounts an incident said to have occurred about 2 weeks before the home invasion. The effect of what he said is that the accused approached another person who owed Mr Barbara money and collected the money owing on the pretence that he was doing so on behalf of Mr Barbara. Mr Barbara had not authorised him to do so and never received the money. Mr Browning was present when the accused collected the money and reported what had happened to Mr Barbara. When Mr Barbara confronted the accused about the matter, he denied ever having collected the money.
Focusing on the morning after the home invasion, the Crown prosecutor argued that Mr Browning was present at Mr Barbara's home at Mr Barbara's behest and was providing support to him. The accused became aware of Mr Browning's presence at the home that morning and, said the Crown prosecutor, the inference might be drawn that he saw Mr Browning's presence as supportive of Mr Barbara, conveying his alignment with Mr Barbara's interests. This motivated him to inflict violence upon Mr Browning, just as he had to Mr Barbara the night before.
This, of course, could be no more than a matter of inference. As I have said, the accused is seen to have been in conversation with Mr Browning at the time he inflicted violence upon him but there is no evidence of what that conversation was. As Mr Pontello pointed out, the evidence is that Mr Barbara invited Mr Browning to his home after receiving a text message from him asking if he could come. Whether Mr Browning made the request because he had become aware of the home invasion is unclear. However, that may be, there is no suggestion that the accused was aware of how long Mr Browning had been at Mr Barbara's home when he saw him there, and the question is whether the inference could fairly be drawn that he saw Mr Browning's presence as being for the purpose of providing support to Mr Barbara. In my view, to reach that conclusion would be to draw a very long bow and I do not consider the inference to be fairly available. I say so even taking into account the incident two weeks earlier where, by reporting the accused's collection of money from one of Mr Barbara's creditors, Mr Browning might be seen as displaying loyalty to Mr Barbara.
The Crown prosecutor argued that evidence of that earlier incident might be relevant to establish a reason for the accused to bear Mr Browning ill will. Assuming the available evidence of that incident is admissible, that may be so, as Mr Pontello accepted. However, at is that issue here is whether evidence of the home invasion would be admissible in the trial of the accused for the homicide of Mr Browning. I am satisfied that it would not be. Accordingly, if the matter is to be tried by a jury, the home invasion count should be tried separately from the trial of the homicide counts.
The question remains whether a fair trial should be ensured by the trial of all three counts by judge alone. Provision for that form of trial is to be found in s 132 of the Criminal Procedure Act 1986. Section 132(5) provides that an order for trial by judge alone may be refused, if it appears that the trial would involve "a factual issue that requires the application of objective community standards... ."
The central issues in this case will be the accused's intent and self-defence. The Crown prosecutor submitted, and Mr Pontello accepted, that both of these require the application of objective community standards.
Trial by judge alone was considered at length in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1, and Mr Pontello referred to the helpful summary of the principles stated in that case by Bellew J in R v Villalon [2013] NSWSC 1516 at [20]. It is not necessary to set these out. It is sufficient to say that a relevant matter is the subjective view of the accused that trial by judge alone is preferable, although that is not as significant as the reasons for that preference. Here, the only reason is the prejudice which would attend the joint trial by jury of the three counts, which can readily be addressed by severance of the first count. No doubt, the trial of all three counts by judge alone would resolve the matter more efficiently, but that is not a matter properly to be considered in determining where the interests of justice lie: Belghar at [111]. I would not conclude in this case that justice would be served by a trial before judge alone rather than by jury.
[5]
Orders
Accordingly, the application for trial by judge alone is refused. I direct that the first count be tried separately from the trial of the second and third counts.
[6]
Amendments
16 October 2020 - Finalisation of trial
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Decision last updated: 16 October 2020