R v Misiepo; R v Barnes

The Crown Case

1. Peter Martyn (the deceased) died as a consequence of having suffered three stab wounds to the chest and abdomen with the fatal wound being to the left lower anterior chest.
2. It is the Crown case that the deceased's partner, Megan Hill, had been involved in an altercation with the accused Misiepo and his partner Rebecca Park earlier in the evening after Ms Hill had been out celebrating New Years Eve. The altercation had taken place on Norfolk Avenue, in Port Macquarie close to premises where the accused Misiepo, Rebecca Park and her sister, Pania Park were staying at the time. Pania Park's partner was the accused Reece Barnes, who was at the same premises.
3. Ms Hill had returned home and informed the deceased of what had happened in the altercation. The deceased and Ms Hill then returned together to Norfolk Avenue where the accused Mr Misiepo was alleged to have been standing, outside of the abovementioned premises.
4. The Crown case is that a further altercation then took place between Rebecca and Pania Park and Ms Hill. It is alleged that while this was occurring on the lawn of the premises, the two co-accused were involved in an altercation with the deceased on the road nearby during which the deceased was assaulted.
5. Ms Hill gave an account in which she said that the accused Misiepo was holding something silver which she thought may have been a pistol. At some point during these altercations the deceased is alleged to have yelled words to the effect of "They stabbed me in the heart." The deceased then collapsed on the road. He was pronounced dead by ambulance personnel who attended the scene.
6. The Crown alleges that Mr Barnes joined Mr Misiepo in unlawfully assaulting the deceased Martyn. The Crown case is that the co‑accused Barnes made admissions of punching Martyn.
7. The Crown alleges that both co-accused then left the scene of the attack. The accused Barnes was located and arrested nearby shortly after. He participated in an interview with police in which he said that another man was involved in the 'fight' but he did not specifically identify the co-accused Misiepo.
8. The Crown alleges that the accused Misiepo fled and was not located and arrested until 7 January 2014.
9. As noted above, it was subsequently established that the deceased suffered three stab wounds to the chest and abdomen. One of the wounds was to the left lower anterior chest and penetrated the left ventricle causing death.
10. After the accused Misiepo was located on 7 January 2014, he declined to be interviewed.
11. The Crown case is that the accused, Chad Misiepo, inflicted the fatal stab wound with intent to cause death or grievous bodily harm. The Crown case alleges that the co‑accused, Reece Barnes, joined a criminal enterprise of such a nature that it was unlawful and dangerous.

The Application for Separate Trials

1. At the hearing of the Notice of Motion on 8 May 2015, Mr B Campbell of counsel appeared on behalf of the Crown, Ms K Traill of counsel appeared on behalf of the accused Misiepo and Mr A Evers appeared on behalf of the co‑accused Barnes. Both Mr Campbell and Ms Traill had filed written submissions on the application which were supplemented by oral submissions on that date.
2. It became apparent at the hearing that a number of issues remained outstanding and would require resolution prior to this decision being made. Further submissions on those matters were subsequently provided as discussed below.

Submissions for the Accused Misiepo

1. Ms Traill's application for a separate trial of her client was made following her receipt of evidentiary material which had been served by the Office of the Director of Public Prosecutions relating to the co‑accused, Mr Barnes. The Crown indicated during the hearing that in relation to that material it only intended to rely upon three documents which were included in a Crown Tender Bundle (marked Exhibit 1 in these proceedings). The three documents were: 1. A transcript of a hand-held audio recording between Detective Senior Constable Daniel Sanger and the co‑accused Barnes at Port Macquarie Police Station on 1 January 2014. 2. A transcript of a recording made by police on 8 January 2014 in which the co‑accused Barnes is heard to speak on the telephone. 3. A recording of a telephone intercept between the accused Barnes and a person called Brendan on 11 February 2014.
2. The material identified in Ms Traill's submissions falls into three categories:

(i) Material Implicating the Accused Misiepo

1. Ms Traill's submission was, in essence, that statements made in the above material tended to exculpate the co‑accused Barnes and incriminate her client. It was submitted that admission of the material in a joint trial of both accused would be highly prejudicial, to Mr Misiepo.

(ii) Material as to Fear of the Accused Misiepo

1. Ms Traill submitted that prejudice to her client Misiepo would also arise in respect of statements made by the co‑accused Barnes contained in the material if evidence as to statements were admitted in a joint trial, to the effect that he was fearful of the accused Misiepo, and, in particular, fearful of the consequences of speaking out against him.

(iii) Material as to the accused Misiepo's Criminal Antecedents

1. It was also submitted by Ms Traill that the material gave rise to prejudice because certain statements made by Mr Barnes tended to indicate the accused Misiepo's criminal antecedents.
2. In particular in relation to the recordings of 8 January 2014 and 11 February 2014 Ms Traill indicated that the jury may draw particularly prejudicial inferences concerning her client because these were 'unguarded' conversations.
3. In her Written Submissions dated 7 May 2015 Ms Traill argued: 35. The prejudicial effect of the admission of the above evidence in a joint trial will be insurmountable to the Accused. There is a positive injustice to the Accused by the evidence being likely to turn a potential acquittal into a conviction. 36. The evidence of the co-accused Barnes contains material which is highly prejudicial to the Accused although not admissible against him. 37. The question to be asked is: (i) is the reception of evidence at the trial admissible against A but inadmissible against B, such as to endanger the prospect of a fair trial for B? 38. It is submitted that in the circumstances of this case, that theadmission of the telephone intercept and listening devices of theconversations of Reece Barnes is highly prejudicial to the Accusedand would render the trial unfair.

Submissions for the Crown and the Accused Barnes

1. The Crown's position at the hearing on the application was that many of the passages which caused concern to Ms Traill could be excluded from the evidence. The Crown volunteered to edit from the three documents listed above at [17] much of the prejudicial material identified by Ms Traill, including in particular, that going to Misiepo's criminal history and time spent previously in gaol. The process of editing the documents and excluding from them portions of prejudicial material was to be done in collaboration with Mr Evers for the accused Barnes.
2. Mr Evers did not file any written submissions on the application. However, in oral submissions he indicated that his position at the hearing was, and remains, that he is willing to exclude some material prejudicial to the accused Misiepo. In that respect, in particular, however, (i) he would want to retain certain parts of the transcripts as to why his client refused to name the other party involved in the fight with the deceased, that is, because he was afraid of the consequences of doing so; (ii) he was concerned that his client's silence and dishonest answers to police questions, explained by his responses in certain of the material referred to by Ms Traill, may be used by the Crown to demonstrate consciousness of guilt on the part of his client, or by a jury as either a reflection on his credibility or a mechanism to avoid implicating himself.
3. In an email headed "Position Statement on Recorded Conversations Concerning Mr Barnes" forwarded on 15 May 2015 to the parties and to my Associate, Mr Evers noted that "Mr Barnes' assertion to his friend 'Brendan' that he is afraid that he will be killed if he discloses the name of Mr Martyn's killer provides an explanation consistent with innocence for his answers when speaking with Detective Sanger."
4. At the hearing Mr Evers also made reference to transcripts of a series of five interviews with witnesses to the events of 1 January 2014, referred to as the 'walk through interviews'. Mr Evers indicated that he would potentially wish to rely on these during a trial and that their implications on the question as to whether separate trials should be ordered may need to be considered further. The transcripts of the 'walk through interviews' available in the material related to: 1. The interview with Megan Hill on 2 April 2014. 2. An interview with Adam Paine on 20 March 2014. 3. An interview with Kellie Fardy on 22 January 2014. 4. An interview with Felicity McKenzie on 28 February 2014. 5. An interview with Thomas Le Febrve on 22 January 2014.

Issues Outstanding at the Hearing

1. The proceedings were stood over on 8 May 2015 to allow the following to occur: 1. Further discussions to take place as to excluding prejudicial material from the three contentious documents listed at [12]. 2. Further transcript to be obtained of the un-transcribed portions of the telephone intercept between the accused Barnes and 'Brendan' on 11 February 2014. 3. The position with respect of the 'walk through interviews' to be clarified.
2. Additional written submissions for the accused Misiepo (dated 15 May 2015) and for the Crown (undated) were then forwarded to my Associate as well as updated copies of the three documents which the Crown intends to rely upon (at [17] above) with proposed exclusions and amendments agreed to by the Crown and Mr Evers as marked up on the documents. The updated copies also indicate portions of material which the Crown would be content to exclude but which Mr Evers would not.
3. A significant amount of prejudicial material was excluded from the documents as a result of discussions between the Crown and Mr Evers. As such, much less evidence is in contention than was the position at the hearing on 8 May. Ms Traill's position remains however that the material which Mr Evers has declined to exclude, and seeks to rely upon, remains an insurmountable prejudice to her client and is inadmissible against him. In her Additional Submissions dated 15 May 2015 reference was made to the evidence which Mr Evers intends to rely upon, namely, the evidence that the accused Barnes did not name Mr Martyn's killer out of fear of repercussions, and submitted: 5. Understandably, this is important evidence in the defence of Mr Reece Barnes. 6. The evidence sought to be played to the jury by Mr Barnes' counsel is inadmissible against Mr Misiepo and highly prejudicial particularly the fact that Mr Barnes believed that he would be killed if he disclosed the name of Mr Martin's killer.
4. In relation to the 'walk through interviews' Ms Traill observed that these had been conducted a considerable time after 1 January 2014 and following considerable media coverage seeking the whereabouts of her client. She noted that Ms Hill and Ms McKenzie in their interviews referred to the accused as 'Chad' despite not previously knowing who he was. Ms Traill submitted that the witnesses' recollection of the events at the time of conducting the interviews had been contaminated by delay and the "significant media coverage". In circumstances where the identification of the men involved in the altercation leading to the deceased's death is likely to be a live issue at the trial, Ms Traill submitted that the 'walk through interviews' would be highly prejudicial to her client. Ms Traill's position is that she would seek to have the videos of the walk‑through interviews excluded.
5. Ms Traill submitted that prejudice arising in relation to the material referred to above could not be cured by directions to the jury.
6. The Crown position now is that having taken steps to exclude prejudicial segments from the three documents which it proposes to rely upon, the accused Misiepo's application does not demonstrate that a positive injustice would be caused to him if the trials proceed together.
7. In relation to the transcript of the ERISP with the co‑accused Barnes on 1 January 2014 the Crown submitted that: "There is no material within that interview with any improper prejudicial affect (sic) in relation to Misiepo. The jury could be given a standard direction that the evidence is only admissible against Barnes. Barnes denied being responsible for the stabbing and therefore implied it must have been the other unnamed person. A suggestion of a 'cut throat defence' is therefore raised...there are sound reasons the trials should proceed together in that circumstance": Additional Crown Submissions at [9].
8. A submission to the same effect was made by the Crown in relation to the intercept product of 8 January 2014.
9. In relation to the intercepted telephone conversation between the accused Barnes and Brendan on 11 February 2014, the Crown made the following submission: "5 ...References to Barnes' reasons for not naming the other person involved in the altercation with the deceased are irrelevant to any issue in the trial. The prosecution is not relying on Barnes' statement that he didn't know that person, as a lie evidencing a consciousness of guilt. It is palpable clear from the conversation that Barnes did not wish to be considered a "dog" for fear of potential consequences. Barnes' belief about the character of Misiepo is unnecessary to explain Barnes' failure to name Misiepo when first spoken to by police. 6 However, it is submitted, even if all the material sought to be included by the defence for Barnes is before the jury, a direction that it is not admissible against Misiepo, that it cannot be used in any way in the case against Misiepo and is to be ignored when considering the case against Misiepo would be sufficient to guard against any improper use of the evidence. 7 Further, it is noted that in the additional portions that have now been transcribed it is clear that Barnes was alert to the possibility that the conversation was being monitored by the police. The danger that the jury might give greater significance to the representations made by Barnes because they were made in the course of because they were made in the course of an unguarded conversation is therefore limited."
10. The Crown's submission in relation to the 'walk through interviews' was that although 'it seems the media coverage has affected the way some of the witnesses refer to the people involved' a direction to the jury to the effect that the witnesses did not know the names of the individuals involved and that any reference to individuals by name should thus be ignored would be sufficient to overcome any prejudice to the accused.
11. Mr Evers confirmed that he wishes the videos of the 'walk through interviews' to be played and that they would be admissible in the Crown case against the accused Barnes but not the accused Misiepo. His position is that if they were to be excluded he would make an application for a separate trial on behalf of his client.

Principles

1. Section 29 Criminal Procedure Act 1986 provides: 29 When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances: (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances: (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice. (emphasis added).
2. It is generally desirable that there be a joint trial for joint offenders: Webb and Hay v R (1994) 181 CLR 41. In Webb and Hay it was stated by Toohey J at 89 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 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."
3. It has been held that in cases where either accused is likely to attempt a 'cut­throat' defence, such as the Crown has indicated could occur in this case, it is normally still appropriate for there to be a joint trial: Annakin v R (1988) 17 NSWLR 202.
4. In R v Baartman (NSWCCA, 6 October 1994, unreported), BC9405200 the following principles were adopted from the judgment of Hunt CJ at CL in R v Middis (NSWSC, 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 a positive injustice would be caused to him in a joint trial.
5. These principles were referred to by Adams J in R v Pham [2004] NSWCCA 190 where his Honour made the following observations: "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."
6. The question is thus whether the applicant can show a positive injustice would be caused to him in a joint trial and, if so, whether this can be overcome by appropriate directions to the jury.
7. There are circumstances where the ordinary rule as to a joint trial of accused persons charged with committing a crime or crimes jointly may not apply. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative: R v Glover (1987) 46 SASR 310 at 312 per King CJ.
8. Such a position arose in R v Collie (1991) 56 SASR 302. In that case the appellants were charged with murder and were charged on a joint information with three others, two of whom were acquitted and one of whom, David Carter, was convicted of misprision of felony. King CJ at 310-311 observed: "There can be no doubt about the gravely prejudicial character of the statements attributed to David Carter. He did not give evidence. The appellants were therefore faced at their trial with hearsay statements purporting to emanate from an eyewitness, who could not be cross-examined by them, directly incriminating them. If David Carter had not been tried jointly with the appellants, those alleged statements would not have been heard by the jury. Notwithstanding trial directions it was held that it would have been extremely difficult for the jury to remain uninfluenced in considering their case against the three appellants from what they heard of the statements of the supposed eyewitness."
9. Where there is evidence of a highly prejudicial nature, but which is inadmissible against one of two or more accused, circumstances may be so extraordinary and prejudicial as to warrant a separate trial.
10. In R v Baartman, supra, application was made by the accused Baartman for a separate trial. He, together with one Paul Crofts, was charged with murder. Another person had been charged with being an accessory after the fact in the same matter.
11. The Crown case was that Paul Crofts shot the victim and the victim ultimately died from wounds inflicted. It was alleged that the applicant was acting as look‑out at the time of the shooting. The Crown case was said to be that Crofts was engaged to shoot a person - other than the ultimate victim - in the leg by way of reprisal.
12. The question of who was responsible for the fatal shooting remained a mystery for some time. The applicant was found in possession of a weapon which the Crown demonstrated to be the weapon used in the shooting.
13. What led to the charging of Crofts and the applicant with murder was that the police received information which then led them to undertake surveillance of the home of Crofts pursuant to the Listening Devices Act 1984. A tape recording of the reaction of the Crofts brothers to a television program was recorded and was to constitute an important part of the Crown case against the Crofts. It was evidence that was not admissible against the applicant.
14. Gleeson CJ observed that the television program and the comments upon it were both colourful and extremely incriminating (Powell JA and Smart J agreeing). Frequent reference was made, at least indirectly, to a person who the Crown proposed to allege was the applicant, Baartman. Paul Crofts was recorded as saying, with reference to Baartman: "He was with me. He was there. So if he gives me up I give him up … If he gives me up I will say he's wrong …"
15. The Crown also relied upon a statement made by way of admission said to have been made by the applicant Baartman to a female associate.
16. Gleeson CJ observed: "It is common ground that this evidence will not be admissible against Baartman and it is said on behalf of the applicant that not only will this material be extremely prejudicial, but it will colour the entire trial. Furthermore, it will necessarily serve to support the credibility of the witness Bicanic."
17. Gleeson CJ held that the three conditions set out in R v Middis, supra, were satisfied. The Chief Justice noted that it was common ground that the evidence against Crofts contained material that was highly prejudicial to the applicant, although not admissible against him. There was held to be a real risk that the case against Baartman, formidable as it was, would be made very much stronger by reason of the prejudicial material. Accordingly, it was determined that there should have been an order for a separate trial.
18. Given the exclusions and edits which have been made to the material initially produced by the Crown, it would appear that the three contentious categories of evidence underlying the application for separate trials are: 1. The evidence of the intercepted telephone conversation on 11 February 2014 between the co-accused Barnes and "Brendan" relied upon by the Crown. 2. Evidence in recordings as to the accused Barnes' alleged fear of the accused Misiepo and his subsequent silence. 3. The 'walk through interviews' in which the accused Misiepo is identified by name.
19. There are, in my assessment, two principal matters that support the submissions made on behalf of the applicant as to the existence of significant prejudice. The first relates to the matter identified by Ms Traill in her submissions, being that part of the intercepted telephone conversation between the co‑offender and "Brendan" in which (at page 5) the co‑offender Barnes is recorded as saying: "V1: But I didn't do it man, ol' mate, ol' mate who did it took, you know he done the Harry Holt straight away."
20. There is, as I understand it, no real dispute that the reference to "ol' mate" either was a reference to the applicant, Chad Misiepo, or is capable as being understood as a reference to him. The statement is one, from the co‑accused's point of view, which is exculpatory, but it also inculpates the applicant by being a clear statement that he "did it", an obvious reference to the stabbing of the deceased.
21. In addition, whilst there are two or three references in the same telephone conversation by the co-accused, Barnes, which suggest that he was aware of a risk that his telephone line may have been intercepted, it is not apparent that he thought that this had in fact taken place and that he was simply making statements for the purposes of them being recorded as exculpatory material. The telephone conversation of 11 February 2014 between him and "Brendan", either was or, may be seen by the jury to have been, a conversation in which the co‑accused was making unguarded comments to his friend, "Brendan".
22. The statement by the co-accused, Barnes, which conveys or is capable of conveying information that the applicant in fact stabbed the deceased, is highly prejudicial to the applicant, although not admissible against him.
23. Consideration in these circumstances needs to be given, of course, to whether or not trial directions would be capable of meeting any prejudicial effect. Upon consideration, I do not consider that directions could achieve that effect. In those circumstances, a positive injustice to the applicant would arise.
24. In addition to the evidence contained in the telephone conversation of 11 February 2014, there is, of course, also to be taken into account that other statements by the co‑accused, either alone or taken in conjunction with the other evidence to which I have referred, in determining whether, if admitted in a joint trial, such statements are capable of occasioning real and significant prejudice to the applicant in that they convey the co‑accused's supposed knowledge of the applicant as having the character and disposition to inflict serious harm upon the co‑accused.
25. I consider that there is a real risk that the Crown case against the applicant, even if accepted as a reasonably strong case, would be made very much stronger by reason of the prejudicial material to which I have referred. I do not consider that trial direction can satisfactorily remove the significant prejudice arising from the material to which I have referred.
26. In those circumstances, notwithstanding my appreciation of the fact that I am exercising a discretionary power, I consider that an order should be made for a separate trial.
27. In accordance with the provisions of s 29(3) of the Criminal Procedure Act 1986 I am of the opinion that the proceedings in relation to the offence charged against the applicant, Chad Misiepo, should be heard and determined separately, in the interests of justice, from the proceedings in respect of the charge against the co-accused, Reece Barnes. As such, the trial of the applicant, Chad Misiepo, should be separated from the trial of the co-accused, Reece Barnes.
28. I accordingly order that there be separate trials in the matters of Chad Frederick Misiepo (2014/5390), and Reece George Barnes (2014/425).

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: 06 August 2018