R v Kearnes; R v Paton

Supreme Court of NSW|2013-08-09|Before: Button J, Gleeson CJ, Powell JA, Smart J

EX TEMPORE Judgment 1Peter John Kearnes and Christopher John Paton were charged with the murder of Semin Rizvic (to whom I shall refer in this judgment as "the deceased") some time ago. They have been arraigned in this Court previously to today, and their trial is set down for hearing in the Supreme Court at Albury on 3 September 2013. The indictment contains a single count of murder alleged against both accused, and the proposal of the Crown is that a joint trial be conducted. 2Mr Kearnes moves upon a notice of motion filed 31 July 2013 seeking a trial separate to that of Mr Paton. An affidavit of the solicitor for Mr Kearnes of the same date has been filed and read on the motion. The documents annexed to it, including but not limited to the Crown case statement, have provided me with a useful overview of the Crown case. 3The Crown Prosecutor opposes the order sought in the motion. Senior counsel for Mr Paton has indicated that his position with regard to the resolution of the motion is essentially neutral. All parties have filed very helpful written submissions.

Basis of application 20The submissions in support of the order sought are simple. It is submitted that the evidence of Ms Schwind against Mr Paton will be an important part of the case against him. It is one thing, it is said, for a prison informer to give evidence against a fellow prisoner. It is quite another for a close relative who has known an individual since the day he was born to implicate him in a murder. Counsel for Mr Kearnes submits that the evidence, whilst by no means the only evidence against Mr Paton, will assume a significant role in the Crown case against him, and he submits that it will be an important part of the deliberations of the jury with regard to Mr Paton, especially in light of the fact that it will be the subject of dispute. Counsel for Mr Kearnes also submits that the evidence of Ms Schwind may well be dramatic and have attached to it human interest, in light of the relationship between the witness and Mr Paton, and that could add to the impression it makes upon the jury. 21And yet, he submits, there is no doubt that by way of what he is alleged to have said to his aunt, Mr Paton was directly inculpating Mr Kearnes in the shooting. Indeed, what Mr Paton allegedly said to his aunt could be said to be largely exculpatory of Mr Paton. And yet, counsel submits, the jury will be expected to put out of its minds completely the evidence of Ms Schwind about what Mr Paton said about Mr Kearnes when it comes to consider the Crown case against Mr Kearnes. 22In other words, counsel for Mr Kearnes submits that, during their deliberations, the jury will be called upon to examine closely what was said by Mr Paton in considering the Crown case against Mr Paton, but disregard entirely what was allegedly said by Mr Paton when considering the case against Mr Kearnes. In fact, he submits, that it is an impossible expectation of mental gymnastics to be undertaken on the part of the jury. 23He also submits that, when one considers the strength of the Crown case against each accused, and accepting that the bulk of the evidence will be admissible against each man, including most of the evidence establishing the presence of the other man, nevertheless it can be said that the evidence against Mr Kearnes is substantially weaker than the evidence against Mr Paton. 24In short he submits that the well-established test in R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported) has been made out, and, even despite the extra time, trouble and expense involved, there should be two trials. 25The Crown Prosecutor accepted that the evidence of Ms Schwind would not be admissible against Mr Kearnes, and that there would need to be firm and repeated directions to that effect. However, he emphasised that our criminal justice system operates on the general assumption that juries obey directions of trial judges. He also submitted that the balance of convenience is overwhelmingly in favour of there being a joint trial, in that many witnesses would have to give evidence twice, and perhaps two to three weeks of extra court time would be needed to accommodate two trials as opposed to one. Finally, he suggested that, even at this stage, there is perhaps a developing flavour of a cutthroat defence (at the least on the part of Mr Paton), and that is a factor that militates in favour of a joint trial. 26As I have said, senior counsel for Mr Paton has adopted a neutral position.

Legal principles 27The following propositions can be derived from the authorities. 28The general rule is that crimes alleged to have been committed jointly should be prosecuted in a joint trial: see R v Beavan (1952) 69 WN NSW 140, Assim v The Queen [1966] 2 QB 249, Webb v The Queen; Hay v The Queen [1983] HCA 30; (1994) 181 CLR 41. 29However, the exception to that rule is if there is a real risk of positive injustice in the conduct of a joint trial: see Guimond v The Queen (1979) 44 CCC 481, R v Darby [1982] HCA 32; (1982) 148 CLR 668 and Gulder v The Queen (1986) 8 NSWLR 12. 30In a case such as this, where there is an alleged admission directly admissible against one accused but completely inadmissible as hearsay evidence against another accused, it has been said that that question can be resolved by considering three questions: see R v Middis, approved in R v Baartman (Court of Criminal Appeal of New South Wales, Gleeson CJ, Powell JA and Smart J, 6 October 1994, unreported). 31First, is the evidence against the applicant for a separate trial significantly weaker and different to the evidence admissible against the other accused? 32Secondly, does the evidence against the other accused contain material highly prejudicial to the applicant although not admissible against him? 33Thirdly, is there a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material? 34It has been said that if those three aspects are made out, a separate trial will usually be ordered. 35It has been said more recently that the question of comparison of the relative weaknesses and strengths of the cases against each accused should not be regarded as an overly determinative factor: see R v Pham [2004] NSWCCA 190 and R v Lu; R v Pham [2007] NSWSC 1141. 36It has also been said that, in this context, "immeasurably" does not mean enormously, but rather in a way that cannot be quantified with precision: see R v Pham. 37The cases establish that questions of cost and convenience are not irrelevant: see R v Oliver (1984) 57 ALR 543, R v Middis and R v Dellapatrona; R v Duffield (1993) 31 NSWLR 123. 38It has also been said in the latter case that the question involves a degree of balancing of factors. 39The cases have emphasised that the ordering of separate trials is not automatic simply because there will be some evidence led in a joint trial that is inadmissible against one accused: see Gulder v The Queen. If there is a cutthroat defence apparent, that is more supportive of there being a joint trial: see R v Ignjatic (1993) 68 A Crim R 333. 40It is the case that the common law proceeds on the assumption that juries obey directions from trial judges. As McHugh J said in Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 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 that they obey the trial judge's directions." A little later his Honour said in the same paragraph: "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." 41On 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 that their decision-making is unaffected by matters of possible prejudice."

Determination 42Applying the principles that I have reviewed and sought to summarise to the evidence as currently revealed at this early stage, I must say that the matter is finely balanced in my mind. The bulk of the evidence is admissible against both accused. It will undoubtedly be inconvenient, time-consuming, expensive, and to some degree oppressive to witnesses, not least Ms T, if they are called upon to give evidence twice. 43It could also be said that the evidence of Ms Schwind about what Mr Paton is alleged to have said, whilst undoubtedly important, is not absolutely paramount in the Crown case against him. 44On the other hand, there is force in the submission of counsel for Mr Kearnes that the testimony of Ms Schwind could well be, at least to some degree, dramatic, emotive, and impressive. As I understand it, it is the only evidence of an admission by Mr Paton, and it comes from a close relative. Perhaps it could also be said that it has the ring of truth (in the sense of it having been said by Mr Paton) in that it features a substantial degree of exculpation. 45It is true that the direct evidence against Mr Kearnes includes the phone records, some evidence of motive, and a more direction connection with a Ford Territory. It is also true that the evidence of Mr J may well have its strength as well as its weaknesses. 46But in light of the identification evidence pertaining to Mr Paton, the CCTV evidence with regard to him, and the evidence of the expert with regard to the palm print found in a location consistent with the evidence of one of the eye witnesses, and although I do not consider that the evidence against either man is particularly weak, on the material before me currently, I do consider that the Crown case against Mr Kearnes is weaker than the Crown case against Mr Paton. 47Furthermore, with regard to juries obeying directions of trial judges, it is one thing to be comfortably satisfied that juries do indeed apply directions such as the need for proof beyond reasonable doubt, or the need to respect the right to silence of any citizen. It is quite another for a jury deliberating in a murder trial to compartmentalise the evidence of Ms Schwind to such a degree that they fully take it into account against Mr Paton, but disregard it entirely against Mr Kearnes. That is a task that professional judges would, I respectfully consider, find difficult to perform, let alone 12 citizens. 48With regard to the balancing exercise, as I have said, two trials will be inconvenient to a very substantial degree. On the other hand, I do not think it inappropriate to take into account in that exercise the fact that the allegation against Mr Kearnes is an exceptionally serious example of an exceptionally serious offence. And the loss of two to three weeks of court time, whilst regrettable, can sometimes be necessary to ensure a fair trial of a count that carries a maximum penalty of life without parole. 49Finally, with regard to a second trial, and indeed the first, I am confident that the involvement of very experienced counsel will permit there to be substantial and appropriate shortening of the evidence and the legal aspects of the trial. 50In short, whilst I accept that the general rule is that an allegation of a joint crime should be made at a joint trial, and whilst I accept that two separate trials will be inconvenient in a number of different ways, I consider that there has been established that there is a real risk of a positive injustice being occasioned to Mr Kearnes if a joint trial were conducted. And I consider that the specific test enunciated in R v Middis has been made out. 51As a result I make the following order: (1)The trials of Peter John Kearnes and Christopher John Paton for the murder of the deceased are to proceed separately. 52I will proceed to hear submissions from the parties as to which trial should proceed first, and will then make a ruling with respect to that question. Thereafter, we shall immediately proceed to have a pre-trial mention and discussion of the first trial.

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: 05 November 2013

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (6 paragraphs)

Cases Cited (11)