R v Hazairin Iskandar; R v Andrew Iskandar & R v Nita Iskandar

Supreme Court of NSW|2011-10-11|Before: Davies J, Hunt J, Mr J, Toohey J, Mason CJ, McHugh J, King CJ

Judgment 1Hazairin Iskandar and Andrew Iskandar have been jointly indicted for the murder of Mohd Shah Saemin on 21 February 2010 at Leichhardt. Nita Iskandar is charged that, knowing Andrew Iskander committed that murder, between 21 and 24 February 2010 she received, harboured, maintained and assisted him. The 3 accused have pleaded not guilty to the charges. 2Hazairin Iskandar applied on the first day of the trial that a separate trial from the co-accused Andrew Iskandar (who I shall refer to as "Andrew") be granted to him. After hearing argument I ordered that the Applicant be tried separately from Andrew. These are my reasons for so doing. 3The basis for the application was that evidence to be led against Andrew, which contained admissions by him of an intention to kill the deceased, contained prejudicial material implicating the Applicant. The admissions were contained in a statement of Esau Maiava dated 18 August 2010 and in an ERISP of Victor Lau of 2 March 2010. 4The Crown case is that there was a joint criminal enterprise involving the Applicant and Andrew to assault and kill the deceased, or at least to inflict grievous bodily harm upon him, because he was supposedly having an affair with Nita Iskandar, the wife of the Applicant and the mother of Andrew. This involved the Applicant and Andrew driving to the victim's residence in Marion Street, Leichhardt some time before midnight on 21 February 2010. When the deceased arrived home and got out of his vehicle the Crown case is that the Applicant drove his vehicle at the deceased's vehicle. He and Andrew then jumped out of the car, with the Applicant being armed with a knife and Andrew with a hammer. They proceeded to attack the deceased with the weapons and, when he managed to run away from them, they chased him and further attacked him. He died at the scene. 5The case for the Applicant is that he intended only to injure the deceased but that at or immediately before the attack he was provoked by the deceased saying things to him, with the result that he killed the deceased by reason of that provocation. 6Andrew took no part in the present application, and the basis of his defence to the charge is not known.

Legal principles 7In Webb & Hay v The Queen (1994) 181 CLR 41 at 88-89 Toohey J, with whom Mason CJ and McHugh J agreed, said on the question of whether there should have been separate trials: King CJ dealt with this ground by pointing out that there are "strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other". What King CJ referred to as "strong reasons of principle and policy" were discussed by his Honour in Reg. v. Collie . I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. 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. 8In Regina v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1997) I07 A Crim R 432 at [6] Kirby J said: There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered ( R v Oliver (1984) 57 ALR 543). 9In R v Symss [2003] NSWCCA 77 at [68] Sheller JA (with whom James J and Smart AJ agreed) said: The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts. 10In R v Middis (unreported - Hunt J - 27 March 1991) Hunt J said: Briefly, the relevant principles are that:

where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and
where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and
where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial. This statement by Hunt J was approved in R v Baartman (unreported - Court of Criminal Appeal - 6 October 1994), in R v Fernando [1999] NSWCCA 66 at [416], and in R v Pham [2004] NSWCCA 190 at [48]. 11In Pham , Adams J (with whom Spigelman CJ and Hulme J agreed) said in commenting on Hunt J's summary of the principles: [39] Two phrases in this summary need some explanation. In ordinary speech, "immeasurably" usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant "significant, though incommensurable". The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to "positive injustice". Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence. [40] I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant's case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender's case is material. Indeed, the opposite would seem to be the case since, if the co-accused's case was weak, or weaker than the applicant's, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case. 12In Madubuko Henry Ugo v R [2011] NSWCCA 135 Hodgson JA (with whom Hoeben J and Grove AJ agreed), expressly agreed with what Adams J said in Pham in those paragraphs. 13The Applicant relies on what was said by Hunt J in Middis , and submitted that the evidence against him was weaker than the evidence against Andrew by reason of Andrew's admissions. He submitted further that if a joint trial were held the evidence of Andrew's admissions would be highly prejudicial and would make the Crown case immeasurably stronger against the Applicant.

The case against the Applicant 14The case against the Applicant is a circumstantial one. However, the Applicant has said that the cause of death and the acts causing the death will not be in dispute. Nor will it be disputed that the Applicant did some of the acts causing the death of the deceased. Nor will it be disputed that the Applicant did those acts with an intention to kill or at least an intention to inflict grievous bodily harm upon the deceased. What will be in dispute as one of the primary issues in the trial is when it was that the Applicant formed the intention either to kill or to inflict grievous bodily harm upon the deceased. This is because the Applicant will rely on the partial defence of provocation. Indeed, the Applicant indicated that when he is indicted before the jury he will plead guilty to manslaughter by reason of the provocation. It is not expected that the Crown will accept that plea in full discharge of the indictment. 15The Crown relies upon the following matters as compelling circumstantial evidence pointing to the fact that the Accused pre-planned the attack on the deceased and intended at least to inflict grievous bodily harm. The circumstances are said to be these: a. a significant motive (having heard rumours from within the Indonesian community and suffered shame); b. prior admitted attempts to dissuade the deceased from continuing his relationship with Nita and the fact that this made him "very mad" (ROI page 6); c. hiring the car; d. performing surveillance (with cap over the face) on more than one occasion; e. possessing multiple and dangerous weapons at the time of the confrontation (a hammer, a knife and a spanner are admitted in the record of interview (Q/A 197-203); f. being with his son so that the deceased was confronted with two armed men; g. ramming the car and ambushing him in darkness; h. the admitted immediacy of the attack that followed; and i. admissions that he had agreed to bash the deceased and "hit his car" before going to Leichhardt and that he did in fact "bash" the deceased in his record of interview (Q/A 189). He admits hitting him on the jaw, temple and back of the head with the hammer (Q/A 232, 243) and kicking him in the head with his foot (Q/A 245). 16Nowhere in his ERISP does the Applicant make any admissions of having formed an intention to kill or inflict grievous bodily harm upon the deceased. In fact he expressly denies and intention to kill him. There are no admissions made to any other person by the Applicant including in telephone intercepts where there is discussion concerning attempts to protect Andrew. 17Two things in particular emerge from the ERISP. The first is an obvious intention to protect Andrew by the fairly obviously false suggestion that a stranger whom the Applicant met earlier that night assisted the Applicant to assault and kill the deceased for the sum of $600. The second is the repeated claim that the Applicant only intended to bash the deceased, and that the Applicant's role involved hitting the deceased with the hammer once, or perhaps twice, and kicking the deceased when he was on the ground. 18Indeed, the impression one gains from the ERISP (if what it says is true) is that the decision to bash the deceased was only made a few hours before the assault, and it was made at the behest of the stranger after the Applicant told him his troubles. Certainly, the Applicant admits to having been troubled by the rumours he had heard about his wife's infidelity and had approached the deceased to speak to him about it. Explanations were provided for hiring the car that was used in the assault. Further, the Applicant admitted that he had previously followed the deceased to see where he lived.

(a) Statement of Esau Maiava 19In July 2010 Mr Maiava was transferred to the Multi Special Purpose Centre at Long Bay Gaol for medical reasons. On his first day at Long Bay Mr Maiava met Andrew. Andrew started talking to Mr Maiava about the murder with which he was charged. The Statement contains the following: [4] ... I asked him what happened. He told me that he and his father were going to knock this guy. I asked him why, and he told me that his mum was having an affair with this guy. I asked him whereabouts, and he said, "Outside of where the bloke lived". He told me he did this in February this year. [5] He told me the first plan was to kidnap him, tie him up and take him in the boot to Wooloomooloo. Once they were there, they were going to kill him there. He told me the first thing that happened was his Dad hit him with the car. The man fell, and Andrew got out and chased him around the car. As Andrew got to him, Andrew hit him with the hammer. [6] Then the father jumped out of the car and stabbed the man with a knife. He told me that his father stabbed the man twice. They took off in the car they were in. Andrew told me that his father told him to get rid of all the evidence. [7] Andrew told me that they went home. Then his father told him to call one of his mates to make an alibi for him, to say that Andrew was with his mate at the time of the murder. Dad told Andrew to get rid of his shoes. Andrew's Dad had first dropped him off at home, and then went somewhere for a short time and then came back. [8] When Andrew's Dad got home, he said to Andrew, "We've done it, go to bed now". Andrew told me he rang his mate, but the mate didn't want to help him with the alibi. [9] Then he told me that his mum organised a flight for him to go overseas because he knew the Police would come looking for him. Andrew felt that he had done nothing wrong in killing the man, he was proud of what he'd done and felt he had defended his family honour. [10] Andrew was saying to me that he was texting his dad for weeks before hand, saying, "When are we gonna kill him, when we gonna kill him". ... [12] in relation to the plan to kidnap they were going to do, they had tape and all that stuff with them and organised the knife and hammer before the murder. ... [14] Andrew asked one of his mates in the Indonesian community where this man lived. This friend asked his dad, and they told Andrew and his father where the man lived. Then, for a couple of weeks before they murdered him, they were watching him at his house. One of those times they saw Andrew's mum and the man they murdered walking into his place. [15] Andrew told me that he kept asking his Dad, "when we gonna do it". Andrew's Dad told him that he wanted to confirm what time he got home from work. Then, the day before they did it, Andrew's Dad told him they would do it tomorrow night. [16] Andrew was telling me that he and his Dad used to watch a TV program on Foxtel to do with using a knife to stab someone. Andrew's Dad would then further educate him about how to stab someone. ... [22] I have a black 2010 diary which I make notes in whilst I have been in custody. When Andrew was telling me what he had done, I made notes in my diary. I made them each day immediately after being put back into our cells at 3pm. I wrote the notes behind the contacts section in the back of my diary. The notes are under the heading of "notes". I will be happy to provide a copy of the notes I made in my diary. 20The notes annexed to his Statement contain the following written on the page in the diary for 20 December 2010: Andrew Iskandar Him and his dad has been planning to do job for a while. He'll call his dad and ask his dad when they're going to kill the guy. (b) ERISP of Victor Lau 21Victor Lau was a school friend of Andrew's. He received a telephone call from Andrew at 7:20am or 7:30am on the morning following the assault where Andrew informed him that he and his father had killed the deceased. Andrew asked Mr Lau if he would cover for him and say that he, Andrew, was at Burwood at 9:00pm and Mr Lau bumped into him. Mr Lau refused to do this. 22In particular, Mr Lau said the following in his ERISP of 2 March 2010: Q17 Detective Sergeant MUNRO - Ok. What can you tell us about any information you may have to the murder of Mohd Saemin which took place at Leichhardt on the 21st of February 2010. A Yep well Andrew ISKANDAR he gave me a call at 7:20 or 7:30 around that time and he didn't go into details about what he did but he told me briefly in general what he did. He said that um there was this guy messing around with his mother. And that they chased him and then they crashed into his car. And after they got out and he had a hammer in his car. And I'm not sure if his dad had a knife or not but I presumed he had a knife. And then pretty much what they did was that they attacked him, eh (sic) smashed a hammer on his forehead and the he (sic) was nearly dead and his dad finished him off with a couple more stabs, into the back and stuff like that. ... Q53 Detective Sergeant MUNRO - Ok, and what did he say? A He pretty much, first off he's like, you know ah he asked me questions like ah you know if something's messing with your mum, like would you, you know would you take him out or stuff like that. You know aww it needs to be or something you know. And then I was like ah ok, so like what's the point. And then he's just like some guy me and my dad killed some guy, and he said like aww he's gone to the grave now he's gone. And I was like aww what the hell like you know what did you do? And he's like we chased him and he got out ah pretty much we crashed his car and then he got out and you know pretty much smacked him you know with a hammer and a knife. ... Q54 Detective Sergeant MUNRO - Ok um, you mention a hammer and a knife, can you tell us anymore about what he said in relation to the hammer and the knife. A Like he was very brief with it, he didn't tell me any location, and he didn't tell me the names of anyone. He just said he got a hammer or something and then he smacked him in the forehead and that's pretty much all he said and that he was nearly about to die and his dad finished him off with the knife so pretty much that's what he told me. ... Q62 Detective Sergeant FURIA - You indicate specifics that um that Andrew had used a hammer. A Yep. Q63 Detective Sergeant FURIA - And his father used a knife. Is that correct? A He indicated me like his dad finished him off and stabbed him so I'm presuming that pretty much had the knife.

Should there be a separate trial? 23The Crown accepted that if the accused are jointly tried there will be prejudice that flows to the Applicant from the admissions made by Andrew to Mr Lau and especially to Mr Maiava. But the Crown submitted that the case, in any event, is a strong one against the Applicant, particularly because the evidence is likely to show that it was the Applicant who was armed with the knife. Even if it was not the Applicant who was armed with the knife (as he asserted in his ERISP) the Crown relies on a joint criminal enterprise which included not only the motive and preparation, but the bringing to the scene of the hammer and the knife by the participants in that enterprise. 24The Crown submitted further that a cut throat defence from Andrew was likely with the result that ordinarily there would not be separate trials. The Crown submitted that the significant focus in the judgment in Pham was whether the evidence might turn an acquittal into a conviction - is the evidence so highly prejudicial that an accused loses a chance of an acquittal because of it? It referred to what was said in R v Darwiche [2011] NSWCCA 62 at [233] about the inevitable consequence in a joint trial of the admission of evidence against one accused that would not be admitted against the other in a separate trial. 25The Crown drew attention to the length of the trial and the doubling up which would occur from witnesses having to give similar evidence in 2 trials with the emotional trauma and inconvenience involved in that. 26If the test remains what was said by Hunt J in Middis , a test which includes a determination that the case against an applicant for a separate trial is significantly weaker than and different from that admissible against the co-accused, it seems to me that that is the position in the present case. That is, the evidence against the Applicant is significantly weaker than the evidence against Andrew. Certainly there is not much doubt about motive or considerable planning on the part of the Applicant. Nor is there any doubt that he seriously assaulted the deceased. That assault together with the assault perpetrated by Andrew (or if the ERISP is to be believed, a stranger by the name of Salman) resulted in the death of the deceased. 27The important matter is, however, accepting that at the time immediately before the deceased died the Applicant's intention was to inflict grievous bodily harm or death, when that intention was formed. The planning itself and the undoubted intention to bash the deceased in the weeks or days or hours before the assault does not inevitably show an intention to inflict grievous bodily harm or to kill the deceased at that time. The jury will be asked to infer the requisite intention at the earlier time. The jury may not do so because they may not be satisfied beyond reasonable doubt that the Applicant intended to do more than scare off the deceased by an assault, even a vicious assault. They may accept that part of the Applicant's ERISP where he says his intention was only ever to bash the deceased, even if they reject the lies which go towards protecting Andrew. 28It is true that the presence of the knife is a matter of some significance because, if it was intended to use it to stab the deceased rather than merely to threaten him with it, there would be a stronger case for the inference that at the time he was stabbed there was an intention to inflict, at least, grievous bodily harm. Overall, however, the evidence admissible against the Applicant might not be sufficient to persuade the jury that the requisite intention was present at any time before the Applicant alighted from his car to assault the deceased. 29By contrast, however, the case against Andrew is a strong one. It is not easy to see why the evidence of Mr Maiava and Mr Lau should be rejected. The details that Mr Maiava relate about the course of events points strongly to those matters having been told to him by Andrew. 30If the first principle in Middis has been modified in Pham so that the issue is not, in the first place, a consideration of the relative weakness and strength of the Applicant and the co-accused's case respectively, the enquiry is a similar one - whether there will be a positive injustice to the Applicant by the evidence being likely to turn a potential acquittal into a conviction: Pham at [39]. But as Adams J goes on to point out, if the likelihood is real as distinct from inconsequential then there will be a positive injustice to the Applicant. 31If the jury found the evidence of Mr Maiava and/or Mr Lau reliable they would be likely to conclude that Andrew told them what they say he told them. In the case of Mr Maiava, what he told them was that he and his father had intended to kill the deceased for some period of time. If they accept the evidence of Mr Lau they are likely to take the view that there was no last minute provocation to explain what might be thought to be a frenzied killing by Andrew and the Applicant who "finished off" the deceased by stabbing him further. In those circumstances there would be a much stronger inference available that there was always the intention to act as they had when they met up with the deceased that night. 32The Crown stressed principles in discussed in Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 at [8] and [31] concerning the assumption that as a general rule juries understand and follow directions given by trial judges. The Crown submitted that an appropriate direction would be given to the jury regarding the use of the evidence of Mr Maiava and Mr Lau against the Applicant. 33Two things can be said about that. First, although the assumption is as the High Court set out, there is the sort of exception to that assumption contained in what Hunt J said in Middis and in the various cases that have followed it. The prejudice may be such that directions are unlikely to overcome the prejudice, and hence, the discretion in appropriate cases to order a separate trial. So, for example, in R v Mahmoud Chami [2002] NSWCCA 136 Ipp AJA (with whom Bell J agreed) accepted at [19] - [20] that despite careful and explicit directions it might be difficult for a jury to remain entirely objective. 34Secondly, and particularly in this case where the Crown relies on joint criminal enterprise, it would be extremely difficult for the jury to understand that admissions made by one participant in the joint criminal enterprise had to be entirely put out of their collective minds when considering the evidence against the other participant in the same enterprise in circumstances where they considered that that evidence about the admissions was reliable. They could readily conclude that Andrew always had the requisite intention. Since the case is put forward as a joint criminal enterprise it would be difficult for the jury not to conclude, on the basis of that evidence, that the Applicant also had the requisite intention at the earlier time. 35In my opinion, where the jury is called upon in the case against the Applicant to draw inferences about when the requisite intention was formed, it would be very difficult for them to disregard the prejudicial evidence contained in the evidence of Mr Maiava and Mr Lau. There would be a positive injustice to the Applicant if the jury was to hear that evidence at his trial. The likelihood is real and not inconsequential. 36In my opinion the countervailing factors regarding the time and cost of a second trial and the need for witnesses to give evidence a second time are of less significance; cf Mahmoud Chami at [24] concerning a complainant in sexual assaults committed on her. 37In those circumstances, the application for a separate trial for the Applicant must be acceded to.

Conclusion 38I make the following orders:

I order that the Applicant Hazairin Iskandar be tried separately from the Accused Andrew Iskandar.
I stand over the trial of the Applicant to the Arraignments List on 11 November 2011.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2012

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