R v Jones & Ors [2007] NSWSC 769 | Case summary

JUDGMENT - (No 1) Notice of Motion - Application for separate trial by Lydia Jones 1 HIS HONOUR: By notice of motion, Lydia Jones (the applicant) makes application pursuant to s 21(2) of the Criminal Procedure Act 1986, for an order that she be tried separately from four members of her family with whom she is jointly charged. None of the other accused join in the application. 2 Samuel Jones (hereafter referred to as Sam Jones Snr), his wife, Elizabeth Jean Jones, their son, Adam Samuel Jones (hereafter referred to as Adam Jones Snr), and their grandson Adam Jones (hereafter referred to as Adam Jones Jnr) are each charged with the murder of William Smith at Kangy Angy on 9 October 2005. They are also each charged with having on the same occasion wounded Noah Henry Smith (hereafter referred to as Noah Smith Snr) with intent to murder him. In the alternative to that charge, they are each charged with maliciously wounding Noah Smith Snr with intent to do grievous bodily harm to him. The applicant, who is the wife of Adam Jones Snr, is charged with being an accessory after the fact to each of those charges. Adam Jones Jnr is also charged with having assaulted Mary Rose Smith. 3 The fatal incident occurred at a caravan park on the Central Coast at which the families of the accused and of the victims respectively were then residing. Members of both the Jones family and the Smith family are Romany gypsies. Adam Jones Jnr is married to Ellen Smith, who as I understand the situation, is one of the main Crown witnesses. Both the deceased and the other male victim are her uncles. 4 To assist me to gain some understanding of the way in which the evidence was likely to unfold, I was provided by the Crown with a folder of materials. It included, inter alia a document entitled "Crown Case Statement" and a number of witness statements. In all, I was provided with no fewer than 9 statements made to police by Ellen Smith. I was also furnished with statements from 11 other members of the Smith family. I was informed that those 11 witnesses purport to have observed certain aspects of the incident which culminated in the death of William Smith and the injuries to Noah Smith Snr and Mary Rose Smith. None of that material has as yet been tested. 5 On behalf of the applicant, affidavits sworn by both her and her instructing solicitor have been read. From that material it emerges that the trial is anticipated to last for up to 16 weeks. The applicant, who is on bail, and her husband (Adam Jones Snr), who is in custody, are the parents of two children who are aged 14 and 12 respectively. Both of the children have been home schooled by the applicant. The applicant has made arrangements for them to be cared for, during the course of the trial, by family members. One child is staying in Melbourne and the other in Yarrawonga. The applicant expresses a concern that "a four month period for my children…away from home will have a significantly bad impact on their welfare". 6 It is now necessary to say something about the case which the Crown seeks to advance. On the evening of 8 October 2005, Adam Jones Snr and Adam Jones Jnr were socialising at the caravan park with members of the Smith family. The deceased was part of that group. An argument developed. Adam Jones Jnr produced a knife and threatened to stab the deceased. The deceased and Adam Jones Snr agreed that the matters should be resolved between the protagonists the following morning. At that point the respective families then parted company. 7 There is material, in the form of telephone records, from which the Crown seeks to have the jury infer that contact was made with Sam Jones Snr and his wife, Elizabeth, who then travelled together to the Central Coast from Parklea. Other persons, including their other son, Sam Jones Jnr, also came to the caravan park. The Crown case is that the applicant and her husband made those calls for the purpose of obtaining reinforcements for what they anticipated would be a fight. 8 Ellen Smith said that she observed both her husband, Adam Jones Jnr and his father, Adam Jones Snr obtain various weapons, including a baseball bat. The applicant was alleged to have been present whilst the weapons were being assembled. Ellen Smith said that the applicant told her that "it will be a fair fight". 9 At approximately 1.20 the following morning a group of between 8 to 10 people were then observed to attack the deceased and Noah Smith Snr. Those persons were armed with various weapons including hand axes, machetes, swords, knives and metal bars. The four members of the Jones family who are charged with murder have been identified as being part of the group which participated in the fatal attack. 10 Whilst the attack was taking place, Sam Jones Jnr is alleged to have had a handgun which he used in order to keep members of the Smith family at bay. Noah Smith Snr was attacked when he went to the deceased's assistance. A post-mortem examination revealed that the deceased had sustained 18 sharp force injuries to his head and body, including the fatal blow which penetrated his lung. The pathologist, who conducted the post-mortem, is of the opinion that the injuries were caused by a variety of sharp instruments and blunt objects. Noah Smith sustained a 20 cm laceration, which ran from his neck and down his back, as well as other lacerations. 11 After the attack, Ellen Smith saw Adam Jones Snr running away from the scene. He was covered in blood and was carrying a machete. Her husband was carrying a Samurai sword (with which she was familiar) which had blood on the blade. It would appear that the two men then left the scene. Subsequently they met up with Sam Jones Snr and Elizabeth Jones and all four of them then travelled to Parklea. 12 At some stage that morning, and at a point in time when the applicant had been informed that the deceased had died, Ellen Smith observed the applicant wipe blood from the weapons which Adam Jones Snr and Adam Jones Jnr had been carrying. She then saw her take those items and leave them outside the caravan. Police subsequently located those weapons at the caravan park. 13 Later that day Adam Jones Snr handed himself into police. He gave a version of events which suggested that he had been set upon by the deceased and members of his family and that he had struck the deceased in self-defence. He maintained that no other member of his family had been involved in the altercation with the Smith family. The following day, Elizabeth Jones told police that she had not been in the caravan park on the night in question. She was arrested on 15 October. The applicant declined to speak to police and she was not arrested until December. Sam Jones Snr and Adam Jones Jnr went to Queensland where they were arrested on 26 October. Adam Jones Jnr told police that he had gone to the assistance of his father who had been attacked by members of the Smith family. Sam Jones Snr told police in Queensland that he had attended the caravan park on the night in question but only to "pick up his grandchildren". Sam Jones Jnr has eluded police and remains at large. 14 In essence, the Crown case is that the four persons accused of murder participated in a joint criminal enterprise, the purpose of which was to attack the deceased intending thereby to kill him or to inflict grievous bodily harm upon him, and also to attack Noah Smith with the intention of wounding him. The applicant is alleged, as I have said, to have acted as an accessory after the fact to those offences. 15 The principles to be applied in respect of the present application are not in dispute. In R v Annakin (1988) 17 NSWLR 202, the Court of Criminal Appeal made the following observations: The circumstances appropriate to a joint trial were considered in R v Assim [1966] 2 QB 249 where the court state (at 261): As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases. Again, while the court has in mind the classes of case that have been particularly the subject of discussion before it, such as incidents which, irrespective of there appearing a joint charge in the indictment are, contemporaneous (as where there has been something in the nature of an affray)…the court does not intend the operation of the rule to be restricted so as to apply only to such cases to have been discussed before it. A little later their Honours added (at 262): The court has already emphasised and desires to repeat, that it is the interests of justice as a whole that must be the governing factor and that among those interests are those of the accused. In R v Oliver (1984) ALR 543, Priestley JA, with whom Cantor and Roden JJ agreed, said (at 547): Counsel for the appellant submitted that the discretionary factors to be taken into account when deciding whether separate or joint trials should be held are, on the one hand, prejudice to the accused and, on the other hand, the question of the public interest in the efficient despatch of trials, the conserving of costs and the avoidance of any inconvenience to witnesses by having to attend a number of trials. I myself would add to these matters the desirability of having the various people allegedly concerned in the one crime being all dealt with by the one litigation unless positive injustice would be caused by it. Even though the charges arise out of the same event, separate trials may still be appropriate where the evidence to be led against one accused is significantly different from that to be led against another: R v Guldur (1986) 8 NSWLR 12; R v Darby (1982) 148 CLR 668, In the ultimate, each case must be dealt with according to the evidence and by reference to the considerations relevant to whether prejudice will be caused so as to prevent an accused being given a fair trial and, of course, this is essentially a matter for the trial judge. It is not possible to lay down rules which will be applicable to every case. (at 206-207) 16 In R v Demirok [1976] VR 244, the Full Court of Victoria said: The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues, except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials. (at 254) 17 In R v Middis (unreported, NSWSC, 27 March 1991) Hunt J identified the circumstances in which it is appropriate to make an order for separate trials. His Honour said: Briefly, the relevant principles are that: 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. (at 4) 18 Middis has been cited with approval in a number of decisions of the Court of Criminal Appeal. See R v Baartman (unreported NSWCCA 6 October 1994); R v Georgiou [1999] NSWCCA 125; R v Chami & Sheikh (2002) 128 A Crim R 428 and R v Pham [2004] NSWCCA 190. 19 It is against that background that the applicant's submissions fall to be considered. Apart from the matters concerning her children raised by the applicant in her affidavit, counsel advanced the following propositions. 1 The applicant is a Jones family (she is the wife and mother of two co accused; and mother in law of Ellen Smith) member and this may cause the jury to unfairly tie any evidence led in the murder counts against her co accused to the Applicant when considering her charges; 2 The evidence against the co accused in the murder counts is far stronger than the prosecution evidence against the Applicant; 3 It is expected that there will be months of evidence concerning the murder aspect of this trial and some 140 or so witnesses. The evidence against the Applicant concerning her involvement comes primarily from Ellen Smith. 4 For the Applicant to receive a fair trial the jury must have its focus primary on the issues concerning the case against the Applicant This trial will have the jury focused primarily on the issue of whether the murder took place in the way the prosecution alleges and a proper consideration of the issues concerning the Applicant will be a secondary issue in the jury's mind; 5 Even with proper directions from the honourable trial Judge, it is respectfully submitted that there is a real risk that the jury will misuse the evidence in the trial (that is the evidence that the prosecution will adduce to establish that there was a murder). This being due to, primarily, the Applicant's familial links to the co accused and due to the real risk that the jury will be unable to differentiate between the first task they must address, that is, was there a murder; and secondly was the Applicant an accessory. Because of those difficulties it is respectfully submitted that a positive injustice that requires a separate trial be granted arises. 20 Although the submissions are, as it seems to me with respect, somewhat repetitious and not entirely clear, they appear nonetheless to raise two issues for consideration. The first issue appears to raise the matters addressed in Middis (supra) whilst the second appears to concern what is asserted to be the risk that the applicant will be prejudiced because of her association with other family members whom, unlike her, are charged with murder. 21 At the forefront of the applicant's argument so far as the first issue is concerned, is the contention that the vast bulk of the Crown case will not directly affect her in the sense that its primary purpose will be to establish the case against the co-accused who are alleged to be the principals in this matter. As I understand the submission, it seems to be contended that the jury will simply be overwhelmed by that material in considering the case against the applicant. 22 In proving its case against the applicant, the Crown will need, at the very least, to establish each of the following elements beyond reasonable doubt:

3 That the applicant, with that knowledge, intentionally assisted, maintained, harboured or received the other four co-accused. 23 It appears clear that most of the evidence to be led at the trial will be tendered to prove the first of those three elements in respect of the co-accused. Nonetheless the same evidence will still need to be led against the applicant in order that the first element can also be proved in the case against her. Indeed, counsel for the applicant expressly concedes that this evidence is admissible against his client upon this basis. 24 That is the case whether the applicant is tried jointly or on her own. In other words, were the applicant to stand trial on her own, exactly the same body of evidence would have to be led again. That would mean that little time would be saved by having a separate trial particularly as I was informed by counsel for the applicant that, unlike some other trials involving an accessory after the fact, all the elements which the Crown must establish against her, will be in issue. 25 I have been referred by the parties to the various pockets of evidence upon which the Crown will rely in proving the first aspect of its case against the applicant. It is common ground that the only areas of the evidence which are not admissible against the applicant are the interviews conducted with those accused who spoke to the police. Although I have not seen that material, it is also common ground that none of that material in any way implicates the applicant in the commission of any of the offences. In other words, it cannot operate to the applicant's prejudice. Accordingly, this is not a case which attracts the operation of the principles enunciated in Middis (supra). In that sense, the present circumstances can be readily contrasted with cases such R v Guldur (1986) 8 NSWLR 12; R v Farrell & Cotton (1990) 48 A Crim R 311; Chami & Sheikh (supra) and Pham (supra). 26 As I understand the situation, at least some of the other accused in the trial, will raise the issue of self-defence. As the applicant's liability is derivative, any advantage that flows to the other accused as the principals in this matter, must extend to her. See Osland v The Queen (1998) 197 CLR 316 at 341-2; 351 per McHugh J. It would be open to the jury, therefore, in light of such material to acquit the applicant altogether or, at least, to return a verdict against her of being accessory after the fact to manslaughter. See R v Richards (1877) 2 QBD 311, and R v Carter & Savage (1990) 47 A Crim R 55 at 66. 27 In that sense, although I am in no position to finally determine the question, the applicant could actually benefit from a joint trial because she would be able to take advantage of any evidence adduced at it which casts doubt upon the Crown's capacity to establish the principal offence. This may prove to be more difficult for her at a separate trial where, of necessity, the principal parties (and their representatives) will not be able to assist in facilitating such an outcome. See generally R v Smith & Others (1994) 75 A Crim R 327 at 340-1. 28 The second issue concerns an argument that in effect the applicant will be prejudiced in a joint trial because of guilt by association. Regardless of whether there is a joint trial or a separate trial, the evidence of the association between the applicant and those of her family who are also accused in this matter, will be plainly obvious to the jury. I am of the view however that appropriate directions can be given to the jury which would cure any potential prejudice which might thus arise. It would of course be open to the applicant, assuming that the evidence concerning her actions in relation to the weapons allegedly used by her husband and son were to be accepted, to submit to the jury that they were exactly the actions which one would expect of a wife and mother and accordingly they were not of such a kind as should attract a criminal sanction. 29 It follows that I do not accept that there is an impermissible risk that a jury would reason to a conclusion of the applicant's guilt merely because of her association with the other accused: see generally Osman v R [2006] NSWCCA 196. 30 There remains the question of hardship to the applicant's children. As I have said, it seems tolerably clear that this will be a long trial. It will no doubt take its toll upon each of the accused, including of course the applicant and her children. In that respect, this trial (apart from its length) will be no different from any other. As I have already indicated, even a separate trial would occupy considerable court time given the matters which the Crown is bound to prove. Although the parties were not able to locate any authorities which support such a proposition, I have assumed in the applicant's favour that a joint trial may, in some circumstances, give rise to personal burdens of a kind that go well beyond the norm and thus may lead a trial judge to order a separate trial. However, this is not such a case. 31 Although I have been unable to discern any prejudice to the applicant should the application be refused, I should, in conclusion, indicate that there are, in any event, countervailing factors to be weighed in the balance. Were a separate trial to be ordered, there would be serious inconvenience occasioned to the many witnesses who would have to give their evidence for a second time. Moreover, I am informed that no fewer than 12 witnesses are coming out from the United Kingdom to give evidence. The inconvenience to those witnesses in particular should they have to give evidence twice, as well as the associated expense, is obvious. As the Crown aptly observed, should this application succeed the community would be confronted with not one but two long trials. For those reasons the notice of motion is dismissed. 32 It simply remains for me to say that I have determined this application upon the basis of the material which has been placed before me at this stage of the proceedings. There is nothing however to preclude a further application being made, particularly should circumstances alter. See R v Saunders (1994) 72 A Crim R 347. **********

R v Jones & Ors

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Cases Cited (7)

Cited By (2)