R v Bloodsworth; R v Errington

The basis for the application for separate trials

1. The application for a separate trial was apparently precipitated by the Crown adducing evidence from a friend of the accused Bloodsworth, Alexander Petrovski. Mr Petrovski saw a news report to the effect that Rhiannon Bloodsworth had been charged with murder. The following exchange is taken from his examination-in-chief: "Q. At this stage, what was your reaction? A. I didn't believe it. To me, that's not the person that she is. She always very quiet, polite. She sits there with my parents and my grandparents. We sit there and have - sometimes when the kids come around on the weekends, and that fortnight, we would sit down, have pizzas, watch movies, normal time. Q. Did they indicate online on Google how the person was killed? A. Yeah, it did have a mini, sort of, account of what happened. I still didn't believe it. That's why I booked a visit and came and visited her at Silverwater. Q. So you go and visit her when she was at Silverwater? A. Yeah, straight away. Q. First of all, did you get a call from Silverwater gaol and you accepted the call and you thought it must be Rhiannon? A. Yep. Q. What did she say when she first spoke to you? A. About how she missed me, how she was innocent, and she wanted to know if I believed her. Q. What did you say? A. That I do."
2. According to Mr Petrovski the accused Bloodsworth wrote to him and told him that she loved him. He visited her in gaol at some time prior to 13 November 2015 (which was the date of his statement) and pressed her to tell him what happened. She told him that she was watching television and that whatever happened, happened in a closed room away from where she was. She also told him that she had been threatened by the accused Errington and was told that if she did not clean up and help that she would be next and her child was under threat. Rhiannon told Mr Petrovksi that she had washed clothes and tried to clean up. Mr Petrovski asked her whether there was anything which tied her to the murder to which she gave no response. Mr Petrovski's evidence was that he also asked her whether she was "in the taxi on the way to my place to fucking rob me with that faggot" (which was a reference to a phone call she had made to him on Saturday 29 August 2015). She responded, "Hell, no, I love you." According to Mr Petrovski she also said, "When I took off in the taxi to come to you I was alone. He happened to be on the same train."
3. Mr Carroll submitted that the evidence of Mr Petrovski had no forensic value in the Crown case against the accused Bloodsworth but was highly prejudicial to the accused Errington's case, since it portrayed him as a violent, threatening man who had the accused Bloodsworth in his thrall and who had made a threat to harm the accused Bloodsworth and her child, if she did not assist him to wash clothes after the killing of the deceased was highly prejudicial. He submitted that matters affecting the credibility of Mr Petrovski which were contained in his statement were not led as part of his evidence in chief, including that he had been charged with manufacturing methylamphetamine. Mr Carroll submitted that the Crown "needs to engage with Mr Petrovski at least in terms of the inconsistencies in his statement".
4. Mr Carroll also instanced, as another source of prejudice arising from the trials being heard together, the evidence of Luke Duncan. Mr Carroll submitted that, although the Crown had adduced evidence from Mr Duncan's statement to police dated 3 September 2015, it had not adduced the contents of the following paragraphs: "10. Rhiannon started getting heavy into drugs. She was shooting up ice and using almost every day. When she was on ice she would be uncontrollable. She would start fights and arguments with me and people who were around her. She would get violent. I have seen her punch other people when she was on ice and would also attack me sometimes. . . . 18. We drove back to my place. Over the next couple of weeks Rhiannon stayed on and off with me. She started to tell me about the two brothers. She said, 'They're my two bitches'. 'They do what I tell them to do'."
5. Mr Carroll submitted that the Crown appeared, on the basis of Mr Petrovski's evidence, to be making a positive case of the accused Bloodsworth's good character. Mr Carroll also referred to an allegation in a further statement made by Mr Duncan that he was being pressured to change his statement as a result of a threat which was alleged to have been made on behalf of the accused Bloodsworth. That further statement was not tendered on the application and I understand that some material relating to the application has been the subject of a claim for public interest immunity. I have not been asked to adjudicate on the claim.
6. Mr Carroll said that the prejudice to his client could not be cured by a direction because there was, in effect, no contradictor to expose the unreliability of Mr Petrovski's evidence as he could not cross-examine Mr Petrovski, as what Mr Petrovski said (about what the accused Bloodsworth said to Mr Petrovski) was not admissible against the accused Errington. Mr Carroll argued that, were he to cross-examine Mr Petrovski, the jury might get the incorrect impression that his evidence was admissible against the accused Errington.
7. Mr Crown confirmed that it was no part of the Crown's case that the accused Bloodsworth was of good character and noted the evidence which established that she was a regular illicit drug user. The Crown confirmed that it relied on the statement made by the accused Bloodsworth to Mr Petrovski as an admission (as to her presence in the unit at the time of the acts which led to the deceased's death). It also relied on her statement to Mr Petrovski (as to her alleged absence from the room where the acts were committed and her involvement in cleaning up as a result of the threats alleged to have been made to her) as a lie amounting to a consciousness of guilt. I note that there was evidence of her telling others prior to her arrest on 31 August 2015 that the deceased had been attacked as he had tried to rape her, which was accepted by her counsel to be a "story" which was not true.

Consideration

1. The starting point is the presumption that where co-offenders are alleged to be engaged in a joint criminal enterprise, they should be tried jointly: see the authorities cited in R v Fernando [1999] NSWCCA 66 at [199]-[212]. In Webb & Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30, Toohey J, with whom Mason CJ and McHugh J agreed, said at 89 (citations omitted): "There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused. In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused. In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed: 'That is a common feature of a joint trial and does not of itself render separate trials necessary.'"
2. I was satisfied, on the basis of the Crown's assurance and in light of the considerable unchallenged evidence adduced at the trial of the accused Bloodsworth's illicit drug use, that it is no part of the Crown case that the accused Bloodsworth was of good character. The evidence of Mr Petrovski, which was only admissible against the accused Bloodsworth, was led by the Crown to prove a statement made by her to him, which the Crown will contend was a lie amounting to a consciousness of guilt. Thus, although the statement was self-serving and sought to attribute the whole of the blame for the killing of the deceased on the co-accused Errington, the Crown led it for the purpose of establishing the guilt of the accused Bloodsworth.
3. The potential for prejudice to the co-accused Errington can, in my view, adequately be dealt with by a direction to the jury that the evidence of Mr Petrovski is admissible only against the accused Bloodsworth and not against the co-accused. The need for such a direction has arisen in respect of various pieces of evidence, including the recorded interview given by the accused Errington and statements made by each accused to various third parties, to which the co-accused was not privy.
4. The omission from the Crown case of certain paragraphs in the statement of Mr Duncan is a separate issue. In one sense, the grievance raised by Mr Carroll is dealt with by the Crown's assurance that it is no part of the Crown case that the accused Bloodsworth is of good character. However, there is a further reason why this omission (if it be such) does not constitute a reason for ordering separate trials.
5. Evidence to be led by the Crown from a witness statement can be the subject of discussion between counsel before the witness is called. If there is a disagreement about what evidence is to be led, this can be raised with the trial judge in the absence of the jury. It was plain to Mr Carroll at the end of Mr Duncan's examination in chief that the Crown did not propose to lead paragraphs [10] and [18] from Mr Duncan's statement. In those circumstances it was open to Mr Carroll to signal that he wished to raise something in the absence of the jury. Had he done so, I could have heard argument as to why the Crown had decided not to lead that evidence as well as any objection to that evidence from Mr Price, who appeared for the accused Bloodsworth. The omission could have been remedied by the Crown leading the evidence or, if an objection by Mr Price had been upheld, at least the point would have been ventilated. While I appreciate that Mr Carroll did not want, as he put it, to give the jury a "mixed message" by objecting to the material led from Mr Duncan in circumstances where the evidence led was not, in any event, admissible against his client, he was obliged to take what course would protect his client's interests at the time but raising it with me so that I could have dealt with it in the absence of the jury.
6. It is not necessary to express a view as to the admissibility of these paragraphs, and inappropriate that I do so in the absence of argument. It is sufficient to say that they were arguably admissible as background evidence to counter any inference that the co-accused Bloodsworth was, by reason of her age and size, incapable of asserting herself against men with whom she was, or had been, in an intimate relationship.
7. By remaining silent and objecting after Mr Duncan had come and gone from the witness box, Mr Carroll acquiesced in the forensic decision made by the Crown not to adduce the contents of [10] and [18]. An accused is, generally speaking, bound by the conduct of his or her counsel: R v Birks (1990) 19 NSWLR 677 at 684-685 (Gleeson CJ, McInerney J agreeing).
8. I was not satisfied that the accused Errington could not have a fair trial if his trial is heard jointly with that of the co-accused Bloodsworth. Indeed, I regard it as very much in the interests of justice that the two accused be tried together in light of the way the Crown put its case against each of them. Accordingly the application for the accused Errington to be tried separately was refused.

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