R v Hiroki

The Application 36The applicant submits that she would suffer a positive injustice if she were tried jointly with the co-accused. She submits that there are two ways in which that positive injustice arises. 37The first is that there will be evidence before a jury, namely, the electronically recorded interview of her co-accused of 28 February 2013, which, given that it is not admissible against her, nevertheless will put before the jury compelling evidence that she was involved in the murder, in a way which is not described by any other evidence. She submits that notwithstanding any directions which a trial Judge may give, the admissibility of this evidence would be highly prejudicial to her and result in a positive injustice to her. 38The second basis upon which she submits that there should be a separate trial is that, having regard to all of the circumstances surrounding her relationship with her co-accused, the nature of his personality, and the nature of their relationship, she would feel physically and psychologically intimidated to such an extent that she would not be able to adequately follow the proceedings at her trial, give appropriate instructions to her counsel, or feel safe in giving evidence, should she choose so to do, at a trial.

Evidence 39I have earlier referred in some detail to the account of the events given by the co-accused about the applicant to the police on 28 February 2013. There is no need to describe any further evidence with respect to the first basis of injustice. 40It will, however, be necessary to identify and examine the evidence provided with respect to the second of the two grounds advanced by the applicant. 41The applicant and the co-accused are first cousins. Prior to the arrest of the co-accused, they had been in a de facto relationship for some years. 42The applicant swore an affidavit on 3 March 2014. The Crown did not seek to challenge, by cross-examination, any matter in that affidavit. 43According to the affidavit, the applicant and her co-accused commenced an intimate relationship in 2005 in New Zealand. The relationship was one which was characterised by physical violence perpetrated on the applicant by her co-accused. Prior to moving to Australia, the applicant's evidence is that the physical assaults upon her became a regular event in their relationship and she says that the only way she could stop her co-accused from assaulting her was to pretend to be unconscious. 44The applicant and the co-accused moved to Australia in 2006. The co-accused's consumption of alcohol increased in volume and, as a result, the violence against her also increased. Clearly, from the applicant's evidence, she was living in a relationship in which she was regularly being physically abused, up until the arrest of the co-accused in September 2011. Since his arrest and being in custody, there has been no occasion for the co-accused to perpetrate any physical violence on the applicant. 45I accept the applicant's evidence that the relationship between her and the co-accused was one characterised by physical abuse perpetrated upon her by the co-accused. I accept that evidence for a number of reasons. 46First, the Crown did not seek to challenge it. In the absence of any challenge to it, there would need to be a good reason as to why I would not accept it. 47Secondly, the applicant's evidence is corroborated by a police Facts Sheet relating to an incident which occurred on 14 August 2009 in the Lake Illawarra area. That Facts Sheet records an incident between the applicant and the co-accused at the Dandaloo Hotel, which was witnessed by a number of people who were present on the premises. After the co-accused and the applicant left the premises, their dispute continued and the co-accused armed himself with a long timber-handled axe and followed the applicant towards an exit from the Hotel. As the co-accused approached the applicant, he held the axe above his head and said "[g]et in the car now or I'll slice you up". Although the vehicle drove off and the applicant was heard to be yelling, nothing more was seen. 48The car was stopped by police, the axe was located in the back seat of the vehicle and, during a further search of the vehicle, a timber-handled fold knife was located. The co-accused was intoxicated. He adopted a very aggressive demeanour towards the arresting police. 49The Facts Sheet then contains this paragraph: "The victim was spoken to at length regarding the dispute, however refused to provide police with any details of the domestic dispute between her and the accused. The victim stated 'Me and my man argue like any normal couple. The problem is not between me and my man, it's between him and another bloke'. Police took out an interim apprehended violence order securing the protection of the applicant against the co-accused." 50Thirdly, I have been provided with both the transcripts and recordings of two telephone conversations, which have occurred between the applicant and the co-accused. The first occurred on 14 December 2011. It is fair to say that the applicant and the co-accused engaged in a degree of heated conversation between each other in the course of that telephone conversation, suggesting, to the extent that any relationship existed, that it was a volatile one. The second conversation, which took place on 19 December 2012, was also a heated one. In it, the co-accused speaks in a very loud and forceful manner towards the applicant, and appears, to me, to lose his temper and significantly raise his voice in a manner which could be construed as threatening. 51Finally, in an entirely unprompted way, the applicant described the abusive nature of the relationship in answer to a number of questions from police officers in the course of her various interviews with those police officers. Although much of what she said in those interviews was, to her knowledge, untrue, I see no reason to disbelieve her on the issue. 52The evidence also reveals that on 7 February 2014, when both the co-accused and the applicant were brought to this Court for the purpose of arraignment, they encountered one another in the cell complex at the Court. Apparently, the applicant did not expect the co-accused to be present. The co-accused verbally threatened the applicant whilst in the cell complex, and also threatened to cause harm to the applicant's boyfriend, Justin, who is a witness in the trial. 53The applicant then records her reaction to that threat, which must be seen in the context of the long-term relationship between the applicant and the co-accused. She said: ".... I then had to sit in the dock with only a single guard separating Jason and me. I noticed that Jason was even bigger than before he went to jail. He was also looking at me with a level of hatred beyond what he used to look at me when he used to bash me. I was shaking like a leaf in the court room. I could not concentrate on what was happening in court. ... 16. I know that I would not be able to concentrate in court if Jason was in court with me. I also know that I would not be able to give evidence freely if Jason was in the same room as me. I know what he is capable of and after seeking the look in his eyes and his behaviour that day in court, I believe he is capable of an even greater level of violence towards me." 54The fact that the applicant was verbally threatened by her co-accused is corroborated by her solicitor. 55I accept that such verbal threats were delivered by the co-accused to the applicant on that occasion.

Principles of Law 56As a general rule, and as a matter of good public policy, where it is alleged that a crime has been committed jointly by two or more individuals, those individuals should be prosecuted in a joint trial: R v Beavan (1952) 69 WN (NSW) 140; R v Assim [1966] 2 QB 249; Webb v The Queen; Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41. 57As Toohey J (with whom Mason CJ and McHugh J agreed) said in Webb at 89: "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 in another way, whether improper prejudice has been created against an accused." 58The exception to the prima facie rule of joint trials is if it is established that there is a positive injustice caused to an accused by requiring him or her to participate in a joint trial, then a separate trial should be ordered: R v Middis NSWSC, unreported, 27 March 1991; R v Baartman NSWCCA, unreported, 6 October 1994; R v Fernando [1999] NSWCCA 66. 59In Fernando at [210], the Court (Newman, Studdert and James JJ) approved the statement of Hunt J in Middis, stating that: "The applicant must show that positive injustice would be caused to him a joint trial." 60The reported cases have recognised that one way in which a positive injustice can be shown is where the evidence against an applicant for a separate trial is significantly weaker than, and different from, that admissible against another accused who is to be jointly tried, and where that evidence contains material highly prejudicial to that applicant, although not admissible against him or her. If the consequence of the admission of such evidence is that a weaker Crown case against an applicant will be made immeasurably stronger by reason of the prejudicial material, that may be a sufficient ground for a separate trial: see Middis; Baartman; Fernando at [210]. 61More recently, it has been said that the question of comparison of relative weaknesses and strengths of the cases against each accused, should not be regarded as an overly relevant factor: see R v Pham [2004] NSWCCA 190 at [40]; R v Lu; R v Pham [2007] NSWSC 1141. 62However, a number of decisions suggest that where the defence cases to be conducted before the jury involve each accused seeking to blame the other accused, then that is a factor which tends in favour of the holding of a joint trial. The remarks of Toohey J, to which I have earlier referred, support such a proposition. 63The remarks of Herron J (as the Chief Justice then was) in Beavan, have also been consistently approved. At 142-143, his Honour said: "If separate trials were had, very often only one half of the picture could be presented to the jury. In order to do complete justice, juries are entitled to see and hear all those who are alleged to have acted in common purpose, and it is neither a rule of law nor of practice that where an essential part of one accused's defence amounts to an attack on a co-accused there must be separate trials. Cases have occurred, and will no doubt continue to occur, in which one accused says that he or she was persuaded by the superior intellect of the other accused to take some part in the enterprise, or that he or she was intimidated by the relationship or threats of that other. It is essential to the proper appreciation of such cases that the jury should see and hear all parties." 64More recently, in Ali v R [2005] HCA 8; (2005) 79 ALJR 662, the High Court of Australia was considering a question of whether there had been a miscarriage of justice arising from a failure to order separate trials in circumstances where an infant was murdered, and that death could only have been caused by one or other, or perhaps both, of two accused who were tried jointly. At [58], Callinan and Heydon JJ said: "The events leading up to the murder and dismemberment of the infant, and the guilt or innocence of the appellant and the co-accused, were closely interconnected. Their relationship, their similar motives, their almost equal opportunity to commit the crimes, and their capacity, either separately or jointly to commit them, all argued very strongly in favour of a joint trial. There were no special or other features of the case requiring that they be tried separately. That one might seek to incriminate the other, as each accused here did, could provide no justification for a direction that the appellant and his co-accused be tried separately: R v Palmer [1969] 2 NSWR 13. A joint trial of the appellant and the co-accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged." 65Most recently in Ross v R [2012] NSWCCA 207, the Court of Criminal Appeal considered the question of separate trials. Allsop P (with whom Hidden and Davies JJ agreed) said with respect to joint or separate trials, this: "24. The appellant and the mother were jointly charged with a number of the offences. In the ordinary course one would not expect them to be tried separately: R v Demirok [1976] VR 244 at 254; Demirok v R [1977] HCA 21; 137 CLR 20; and see generally R v Fernando [1999] NSWCCA 66 at [199]-[212]. The danger that may exist is by the admission of evidence against one only of the accused. This risk is to be obviated by express and careful directions as to the use of evidence: R v Harbach (1973) 6 SASR 427 at 433. There is a public interest in the avoidance of the risk of inconsistent verdicts, of inconvenience to witnesses, and in ensuring finality is reached as expeditiously as possible by having one trial. The interests of justice in this respect are not limited to those of the accused: Demirok; Webb and Hay v R [1994] HCA 30; 181 CLR 41 at 89. 25 In R v Baartman (NSW Court of Criminal Appeal, Gleeson CJ, Powell JA and Smart J, 6 October 1994, unreported), the Chief Justice accepted as stating the relevant principles what Hunt J had said in R v Middis (Supreme Court of NSW, 27 March 1991, unreported): '1. 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 2. Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and 3. 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.' 26 There is a balance to be struck between the public interest and any prejudice to the accused, relevant to which assessment is whether there is positive injustice to the accused: R v Dellapatrona (1993) 31 NSWLR 123 at 133." 66It is important to observe what was said in R v Dellapatrona (1993) 31 NSWLR 123 at 133: "There remains a balance to be struck between the public interest and the efficient dispatch of criminal trials and any prejudice which may be caused to the accused. It is desirable to have all those charged in relation to a particular crime tried at the same time unless positive injustice would thereby be caused." (emphasis in original) 67It is also necessary to note that it is the case that the common law proceeds upon the assumption that juries obey instructions and directions from trial Judges. In Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414, McHugh J said at [31]: "The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and they obey the trial judge's directions. ... Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials." 68On the other hand, as Gleeson CJ and Gummow J said in the same case, at [13]: The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption their decision making is unaffected by matters of possible prejudice."

The Evidentiary Basis for Separate Trial 69It is clear that if a joint trial is held, the evidence to be tendered by the Crown would include the electronically recorded interview of the co-accused given on 28 February 2013, in which he tells the investigating police that the applicant is entirely responsible for the fatal assault on Mr Katapodis, and that he played no role in that fatal assault. 70The Crown Prosecutor, who appeared before me, made it plain that whilst the Crown had an obligation to put that material before the jury because it was exculpatory of the co-accused, the Crown did not accept the truth of what the co-accused had said in giving that version to the police. In fact, the Crown Prosecutor informed the Court that the Crown would be putting to the jury that they should not accept that version of the events. 71It is equally clear that counsel for the applicant would be putting to the jury that they ought not accept such an account. 72Accordingly, insofar as the evidence sought to be tendered by the Crown is concerned, with respect to the relevant part of this electronically recorded interview, the jury would be confronted with submissions that the evidence ought not be believed, consistently by the Crown and the applicant's counsel. As well, the trial Judge would be required to, and it must be assumed would, give a direction in clear terms setting out what evidence was admissible against each accused, and what evidence was not admissible against each accused. Clearly, the electronically recorded interview of the co-accused is not admissible against the applicant, and the jury would be so directed. 73In those circumstances, I would not be satisfied that a joint trial, which would include that evidence, would result in a positive injustice to the applicant. 74There is a reasonable case against the applicant on the basis of other evidence. It is clear that the applicant, and the co-accused, were left alone in the house with the deceased, Mr Katapodis. They were the last people to see him alive. At the very least, the applicant, in her interviews with investigating police, finally accepts that she was present at a time when Mr Katapodis was killed. She participated to some extent in an assault upon him, which was part of a continuous series of events, resulting in the death of Mr Katapodis. As well at least, she was aware that the co-accused buried the deceased's body somewhere on the property in which they both lived. She participated in cleaning up some of the blood splatter from parts of the walls and furniture. She accompanied the co-accused to the property of Mr Webster when he was requested to provide land where the body could be buried. And, as well, she has given a number of admittedly false accounts to the police officers with respect to what occurred. 75Importantly, the contents of telephone conversations which have been recorded, and other conversations in which she has participated, are put forward by the Crown as evidence of statements contrary to her interest from which the inference ought be drawn that she was involved in the murder of Mr Katapodis. 76In light of all of this material, I am not satisfied that the admission into evidence of that electronically recorded interview against the co-accused will result in a positive injustice to the applicant. 77I would not be prepared to uphold the applicant's Motion on this ground.

Applicant's Fear of the Co-Accused as a Basis for a Separate Trial 78I have already noted that I accept the applicant's evidence that she is fearful of the co-accused. That fear initially derived from the physical abuse which occurred in the course of their relationship and cohabitation. The resumption of the relationship is impossible before the commencement, and for the duration of, a trial. That is because both the applicant and the co-accused are in custody, and are kept in separate Correctional Centres. Any contact between them at pre-trial hearings or during the trial will be in highly structured environments. It will be a matter for the Correctional Service to ensure the proper physical safety of the applicant and co-accused, both in a courtroom and travelling to and from the Court, and whilst in the Court complex. 79There is no basis, having regard to a fear of physical harm in the preparation for, or else during the trial, to order a separate trial. 80Different considerations, however, apply to the question of the applicant's state of mind. The applicant has deposed that her state of mind is such that she fears that she will be unable to follow the trial and adequately give instructions to her counsel, and if she chooses so to do, to give evidence. She has that state of mind because of the past physical conduct of her co-accused towards her, and a fear that he will cause similar physical conduct to her in the future, either directly or indirectly. Put differently, she says that she is intimidated by the presence of her co-accused, such that any trial, if held jointly, would be unfair 81The Crown does not submit that I should find that such fears are irrational, but the Crown does submit that, in all of the circumstances of these proceedings, and having regard to the principles to which reference has been made earlier, the applicant's fears are insufficient to bring about any positive injustice to her. 82On the other hand, the applicant's counsel submits, in writing, the following: "In order to raise a reasonable doubt and address adverse inferences that might otherwise be available on the evidence, the applicant may make a decision to waive her right to silence and enter the witness box in her trial. The applicant's affidavit of 3 March 2014 ..., strongly suggests that the applicant's defence could be severely compromised, resulting in a positive injustice, if she cannot give her evidence freely and without fear. Furthermore, an unjustifiable unfairness would occur if the applicant were unable to properly follow proceedings as a result of the intimidating presence of the co-accused. Given the history of violence and threats from the co-accused to the applicant, noting that the applicant has given a police interview implicating the co-accused, it is unsurprising that her current sense of fear and trepidation has been heightened despite their respective incarcerations." 83Thus, it is submitted by the applicant that a joint trial would compromise her ability to present a reasoned defence at her trial. 84The Court is obliged, in considering the applicant's submissions, to have regard to, and to take into account, the public interest in the administration of justice in avoiding, where possible, the cost, expense and inconvenience of replicating, or substantially replicating, a second trial. There is also a public interest, as the authorities show, in putting two applicants before the same jury where they each seek to blame each other for the crime with which they are both charged. 85I do not leave out of this consideration the fact that the applicant, but not her co-accused, is facing alternative charges, one of murder and the other of being an accessory after the fact of murder. However, in my view, the substance of the defences of each of the applicant and the co-accused is that they were not responsible for the death of Mr Katapodis, and that they seek to implicate each other. 86The public interest in having these respective contentions heard before the same jury, together with the Crown's case against both of the accused at the same time, is a significant one. 87It is a matter for the applicant to persuade me that she will suffer a positive injustice. However, I am not so persuaded. 88First, a good deal of the preparation for the trial will be done prior to the trial commencing. It will done by the applicant in consultation with her lawyers, providing them with such instructions as is appropriate. There is no suggestion that this process would in any way be adversely affected in the context of a joint trial as opposed to the context of a separate trial. 89Secondly, whether the applicant faces a joint or separate trial, the fact that her defence is that she was not responsible for the murder, but that her co-accused is responsible, is now well known. Nothing new will come of that defence, whether the trial be a joint one or a separate one. If she fears revenge being taken upon her by her co-accused either directly or indirectly, the joint trial or a separate trial will not affect this concern. 90Thirdly, in the event that for any reason the applicant is unable to give instructions to her lawyers during the course of the trial, it would be open to those lawyers to seek a short adjournment for the purpose of obtaining instructions from the applicant free from the presence of the co-accused, and free from any intimidation from the co-accused. In this way, proper instructions for the conduct of her defence can be given. 91Fourthly, whether the applicant chooses to give evidence or not is presently unknown. It is idle for this Court to speculate whether that may be so. If she does choose to give evidence, she can always seek to give evidence via audio-visual link, and seek from the trial Judge a direction that the jury should not form any adverse view of her by reason of that fact. If she does give evidence by audio-visual link, to the extent that such a manner of giving evidence may be disadvantageous, it is my judgment that it is much more like to be disadvantageous to her co-accused, than to the applicant. 92Fifthly, I see no sufficient reason for transferring the consequences of the history of the applicant's violent relationship with her co-accused into the staid surroundings of a courtroom where the applicant and co-accused are separately incarcerated, and where proper arrangements can be made to ensure that the applicant would be physically safe. However, that is, in effect, what the applicant seeks to do. 93Even if I was persuaded, and I am not, that the applicant is disadvantaged or prejudiced by a joint trial, that disadvantage or prejudice needs to be weighed against the public interest in having a joint trial where each accused seeks to blame each other for the crime. I need also to weigh in the balance the public interest in not incurring the expense and inconvenience of two trials where much of the evidence and the witnesses will be common. 94In undertaking this balancing exercise, I am satisfied that the public interest in having, as Herron J said in Beavan, one "... jury to see and hear all parties", significantly outweighs, in the circumstances of this case, any prejudice or disadvantage to the applicant. In so finding, I leave out of consideration the public interest in avoiding expense and inconvenience. 95For those reasons, I am not satisfied in all of the circumstances that the applicant has discharged the burden which falls upon her to persuade me that she will suffer a positive injustice by reason of a joint trial, and that separate trials should be ordered. 96The Motion must be dismissed.

Orders 97I make the following order: (1)Motion dated 3 March 2014 for a separate trial is dismissed.

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