R v Roff

THE evidence on the application and an overview of the prosecution case

1. The applicant relied on an affidavit of his solicitor. That affidavit provides a very brief summary of Ms Tarrant's recorded interview and annexes the transcript of that interview. The transcript is a document of 112 pages comprising around 1,200 questions and answers.
2. The Crown tendered a bundle of documents which became exhibit A. The bundle consisted of 1. The indictment. 2. A facts sheet. 3. A copy of the transcript of Ms Tarrant's recorded interview dated 9 August 2013. 4. The applicant's police statement dated 2 August 2013. 5. The transcript of a crime scene warrant executed at the applicant's home on 9 August 2013 (there is an incorrect dated of 12 August 2013 on p 1 of the transcript). 6. The transcript of a recorded interview with the applicant dated 10 August 2013. 7. A transcript of a text message exchange between the two accused on 28-29 July 2013. 8. Telephone cell tower records. 9. A map depicting relevant CCTV locations.
3. The circumstantial case against the two accused appears to be a powerful one. Senior Counsel for the applicant concedes that this is so. The case is summarised in the facts sheet.
4. Perhaps the most potent evidence comes in the record of the exchange of text messages late in the evening of 28 July and early the following morning. That part of the evidence is open to the interpretation, if not the inescapable inference, that in the evening of 28 July 2013, Ms Tarrant ("T") had administered a sedative to Mr Rez and was reporting to the applicant ("R") as to when it took effect. The inference also arises that it was understood that once the sedative took hold, Mr Roff would attend the premises. For example: "T to R at 21.57: He has just gon to the toilet stumbling. 'm hoping he drops off soon I'm sick of waiting. T to R at 22.44: I would have thought he would have dropped off by now with what he has had plus 4 panadeine extra. R to T at 1.13.14: What is he doing now and what is Hamish doing? T to R at 1.14: He is sleeping god knows what Hamish is doing banging around [in his room] R to T at 1.16: Is he in a deep sleep and is the tv on and is the front light turned off and is the door open. R to T at 1.22: Go back in in 15mins and check he is sound asleep. T to R at 1.41: He isn't snoring either. He has had like 60 something grams of codeine too. He is facing the bathroom. T to R at 1.45: Do you want me to turn the screen off for the camera? R to T at 1.46: Have you got some old rags and yes and leave the door open to the room. R to T at 1.50: Ok I am on the hill I will head down T to R at 1.51: Ok. Train has just gone past and he hasn't budged."
5. There is then a gap in text message exchange form 1:54am until 3:28am. The Crown will ask the jury to draw an inference that during this period the applicant attended the premises and killed Mr Rez. The applicant denies this. In her recorded interview, Ms Tarrant says that she saw the applicant at the premises at that time. After the gap, there is a communication at 3:31AM when the applicant asks Ms Tarrant "did you hose the drive?" and she replies "I will now". Around 7 minutes later she texts "have now don't know whether its all gone" and the applicant responded: "That ok no need to report missing straight away."
6. Apart from the text messages there are other pieces of evidence that implicate the two accused. This includes evidence suggesting that they were romantically attached to one another. For example, the telephone of the applicant listed Ms Tarrant as "my hot young thing" (or similar). An item of Ms Tarrant's underwear and a love letter was located at the applicant's house. There is evidence that the applicant made a report to police of a domestic incident between Ms Tarrant and Mr Rez on 24 July 2013. The applicant initially denied having a relationship with Ms Tarrant but subsequently made admissions when confronted with those items of evidence. A pregnancy kit was located at other premises owned by the applicant. The prosecution will allege that this belonged to Ms Tarrant and that she was pregnant with the applicant's child.
7. There is also forensic evidence of various kinds. Examination of the home uncovered a droplet of blood in the bedroom of Mr Rez and on the driveway. Blood was also located in the boot of the applicant's car. Around two weeks later, items of bedding were located in the Macquarie River that matched the description of bedding in the bedroom of Mr Rez. A blanket was also found that had been repaired with blue thread. Sewing machines found at the applicant's home contained a similar blue thread. Dog hairs were located both on the bedding and also in the applicant's car. The applicant is a dog owner. DNA was gathered from Mr Rez's toothbrush and from some of his relatives. The blood found at the house is consistent with the likely DNA profile of a child of Mrs Rez.
8. Records from telephone cell towers indicate movement of the applicant's mobile telephone in or near the towns of Narromine, Trangie and Nyngan between the hours of 1.19am and 5.28am. This suggests, according the Crown case, that the applicant gave a false account of his movements. There is also evidence from CCTV cameras in the vicinity which accords with the prosecution theory of the applicant's movements at the relevant time.
9. A neighbour provided a statement that places the applicant's car outside Ms Tarrant's premises "after 10:30pm" on the evening in question. Another resident saw Mr Rez on the evening of 28 July 2013 and thought he was affected by some kind of drug.
10. Unregistered firearms were located at the applicant's premises. An empty packet of Temaze (a sleeping tablet) prescribed to the applicant's dead wife was located in his car.
11. It is likely that the prosecution will also rely on consciousness of guilt manifested in the applicant's initial denial of having a romantic relationship with Ms Tarrant.
12. The Crown will also rely on the evidence of friends and family of Mr Rez that they have not seen him since 28 July 2013. Records show that his mobile telephone was active up until that date but has not been used since.
13. The foregoing, which is no more than a potted outline of the case that the Crown proposes to mount, demonstrates that the concession made by Senior Counsel as to the strength of the Crown case is an appropriate one. It also bears out the Crown's submission that most of what Ms Tarrant admitted in her interview is able to be proved by inferences arising from this impressive body of circumstantial evidence.
14. THE DEFENCE CASE AND STATEMENTS MADE BY THE ACCUSED TO POLICE
15. The applicant's statements to police
16. The applicant made a number of inconsistent statements to the police. He made a statement as part of the missing person investigation on 2 August 2013, was interrogated extensively when a crime scene warrant was executed at his home on 9 August 2013 and was subject to a formal electronically recorded interview on 10 August 2013. For the purpose of this application I will assume the admissibility of all of these statements. In the first statement he provided the following account of his movements and the last time he saw Mr Rez: "24. The following Sunday (28/07/2013) I was busy working at Graham ANDERSON'S place tiling in Wingewarra Street I was not upset or anything like that with Sarah, the matter was dealt with and over as far as I was concerned. Sometime around 1:30 - 2pm, I got a phone call from Alois. The number came up on my phone as a blocked number. He said, 'Have you got a spare five minutes so we can have a talk?' I said, 'I will be over mere in five.' 25. I filled my buckets up with water and left Graham's place, heading over to Alfred Street arriving 5 minutes after the phone call ended. I pulled up out the front and went to the front door. Alois invited me inside but I did not want to as I was covered in tiling glue and did not want to bring it into the house. I said, 'What's wrong?' He said, 'I have a heap on my plate at the moment. Are we good?' I said 'We are always good. Look mate, I have to go back to work so I will catch you during the week.' 26. This was the last time I spoke to Alois. He seemed alright happy as Larry. He mentioned to methat his mother Zonia had left/or was leaving to head back to Sydney on the XPT train that day.I did not see "the silver Commodore (Sarah's car) in the driveway. I assumed Sarah must have driven Zonia down to the train station. I would a have spoken to Alois for 5 - 10 minutes. There was nothing specially spoken about. He did not mention what the problems was he was dealing with. He did not have an issue with me or make it known that did. There was no mention of the police attending the other night I can only assume he wanted to speak to me to make sure all was okay as I had not been around there for a couple of days - and the last time I was there I did not say goodbye to him." … "52. My feelings about Alois is something is not right. For him to just walk out is completely out of character. If this was 10 years ago and he went missing or walked out, I would not think anything of it as he used to do that. Whether it was to clear his head or just have some time alone was not out of the ordinary. However, to do it now, having Sarah, the children and his belongings does not add up. It is not him now."
17. In the course of the execution of the crime scene warrant on 9 August 2013 the applicant was asked and answered many questions. He confirmed the contents of the earlier statement and initially denied being in a relationship with Ms Tarrant. Later he said that the "Sarah" referred to in a love letter located by police was a woman he knew from Gosford that he had met over the Internet. Later still, he admitted that he and Ms Tarrant were involved in a "brief affair" but they had last had sex around 3-4 months earlier. He said there would "probably" be a few "love messages" located on Ms Tarrant's telephone. He said that Mr Rez' blood may be a piece of rope found in the back of his car because Mr Rez had cut himself when they were fencing together. Confronted with evidence that his car had been seen at the premises, he denied that he had been there at around the relevant time. He denied burying Mr Rez's body or dumping it in the river.
18. In the electronically recorded interview the following day, the applicant admitted saying things recorded in the earlier statement. He admitted that he and Ms Tarrant had an affair, saying that they had had sex around 5 times in "the Winnebago" and once in his own bed. He described a disability in his shoulder that prevented him from lifting heavy objects. He agreed there was "a lot of texting" and said the last sexual messages were 2-3 weeks earlier. He said that his contacts had recorded Ms Tarrant as "Hot, sexy yummy mummy" but that he had changed this to "Sarah Rez" more recently. He described a conflict with Mr Rez because the latter had suspected some contact between the applicant and Ms Tarrant. He provided a detailed account of his movements at relevant times. He confirmed that Mr Rez had cut himself when fencing and that his blood was likely to be on the rope. He denied being at the deceased (and Ms Tarrant's) premises at around midnight on 28 July 2013. He said "I never went and got in my car, I never went and took it for a drive, I never done anything." He was confronted with some text messages and denied the sinister explanations that the police attributed to them. He admitted having a number of prescription drugs at his premises but denied providing Ms Tarrant with sleeping tablets.
19. The police advised the applicant of the admissions Ms Tarrant had made and then asked him if he knew who was responsible for the killing of Alois Rez. He said (Q 1261) "No I do not" but, from the things police had told him, he said he suspected Sarah Tarrant.
20. At all times, the applicant denied attending the premises at the relevant time and denied any involvement in the disappearance or killing of Mr Rez.
21. Ms Tarrant's case and interview with police.
22. Ms Tarrant will admit all of the elements of murder and undertake to establish the defence under s 23A. Her case will involve accepting the guilty inferences that the prosecution will ask the jury to draw from the evidence including the forensic evidence and the text message exchange.
23. In her initial dealings with police she denied being in a relationship with the appellant. However, as the police disclosed to her some of the evidence that they had gathered, she admitted the relationship and provided a version of the applicant attending the house late on the evening of 28 July.
24. In her interview on 9 August 2013 she provided an account of her affair with the applicant and said that she wanted to end it because she loved Mr Rez. In a lengthy answer at the beginning of the interview she gave an account of seeing the applicant at the premises and seeing Mr Rez's lying on the cement driveway. She talked about difficulties in her relationship with Mr Rez and claimed that the applicant must have misunderstood what she said to him. She had told the applicant that she "wanted him gone" (Q 674). She admitted that she assisted in moving the body (Q 811) and in hosing down the driveway (Q 901). She went on: "Q1030Did you assist Ike in murdering Alois in the bedroom or - A No. Q1030 ---in the house? A No. Q1031 You had nothing to do with it? A No. Q1032 Did you arrange for Ike and talk about, with Ike about murdering Alois? A There was only that time that I told youse months ago and - Q1033 Did you plan and prepare with Ike to murder Alois? A No. Q1034 Did you assist Ike in disposing apart from placing the body in the back of Ike's car, disposing of the body at another location? A No. Q1035 Do you think Alois was drugged? A He was on the Panadeine Extras. He said that he had a headache and that his lower back was sore. Q1036 Do you think Alois was drugged to the point of being unconscious or in a deep sleep to assist in the murder or in, to assist in somebody murdering him? A No. Q1037 Was there anybody else capable within the house in murdering and assisting Ike - A No, Hamish - Q1037 - - - and murdering Alois? A Hamish was I'm assuming in bed because he said that he was going to bed. So I'm assuming that he was in there with his son and I was in the lounge room with the two little ones. Q1038 Why didn't you ring triple 0 when you seen Ike in the bedroom or near the bedroom in the hallway? A I was scared. Q1039 Of what? A What would have happened if I did. Q1040 [02:46] By Ike? A Yes. Q1041 What did you think he would do? A He's capable of anything. Q1042 This is a bloke who's in love with you. Correct? A Supposedly, yes. Q1043 Why would you think he would do something, some harm to you? A I was never in a stable relationship. I've never had anyone be so nice to me. It was, anything can change in a matter of minutes, seconds. Q1044 Did you manipulate Ike to murder Alois? A Manipulate how? Q1045 Emotionally. A He told me he loved me. I'd tell him back. There was feelings there, yes. Q1046 This is a bloke who's got feelings for you, strong feelings of love. Correct? A Yes. Q1047 You have, and, and you seen him in the hallway and you tell us you had fears that he might do something to you. A Yes. Q1048 This is a bloke who when seen in the hallway you've thought something bad is going to happen to Alois. Is that right? A Yes, well, it was actually after he'd been in the room."
25. As can be seen, Ms Tarrant denied being involved in the murder or in planning it. After being confronted with the messages she said "[the applicant] had gave me his sleeping tablets" (Q 1087) and that she put those tablets in Mr Rez's food (Q 1090). She continued to say that she did not know that the applicant would hurt Mr Rez but admitted that she and the applicant planned to 'scare' Mr Rez on week prior to 28 July 2013 (Q 1117-1121). The interviewed continued: "Q1164 When, when did you organise with Ike to come around and sort Alois out? A He had that organised. He just told me when. Q1165 When, when did you organise that with him? A It was the week prior. Q1166 Mmm, can you remember a date? A No, it was around the time that the police came and all of that. Q1167 Ah hmm. And how did that organisation take place? A We spoke. Q1168 Yep, how did you speak? A Over the phone. Q1169 Do you remember what time of day it was? A No. Q1170 No. What was the conversation about? A About him coming over. Q1171 Ah hmm. Can you remember exactly what the conversation was said? A No. Q1172 Can you recall some of it? A It was just organised for him to come over. He gave me the tablets to put him to sleep and he said that he'd do the rest. Q1173 So he gave you the tablets to put Alois to sleep? A Yes. Q1174 And how many tablets were in that bag? A There was about twelve. Q1175 Twelve? A Yes. Q1176 And what did he tell you to do with those tablets? A Crush them up and put it in his food. Q1177 And you gave all those tablets to him? A No. Q1178 And what did he say those tablets would do to him? A Put him to sleep. Q1179 Mmm. And then what did he say he was going to do? A He said that he'd take care of the rest of it and I didn't need to know anything. Q1180 What do you think that meant? A I thought talking about scaring him, didn't look, like I said to youse before I didn't, I'm in a big enough deeper hole as it is. The poor children have got no parents at the moment. I wanted him to scare him. I didn't want him to hurt him. I wanted to break it off with whatever it was going on with Ike and myself. I felt disgusted in myself. I really did. Q1181 But you still used Ike to help you. A Yeah, I was scared. Yes, he said that he was in love with me and everything. Both of them are a lot stronger than me. Both of them were a lot capable a lot more than what I can do. Q1182 What about Joe? Is he involved? A Joe wouldn't have got involved. Joe done his own thing. He had his own problems. His house got broken into. His mum's stuff got stolen. It's a very bad move on my behalf. Q1183 Mmm. A Having feelings for someone who - Q1184 Where's the body at, Sarah? A I don't know. He did not tell me because he did not want me to know. Q1185 See I'm finding it a little bit hard to believe you there - A That's - - - Q1185 - because you've told us all these other things until finally - A But I know youse can not believe me but he drove down the driveway a bit. The gates got closed and I'm almost a hundred per cent certain that he went left and went up the road towards, is it Victoria Street - Q1186 Ah hmm.A Narromine Road. I'm almost a hundred per cent sure that's the way that he went. He didn't tell me anything of what he done. He didn't tell me where he was taking the body. He didn't want me to know for my own safety the both of them. What he meant by that I have no idea."
26. Different cases
27. From this brief summary of the things said by the accused to police, along with the notice of Ms Tarrant's defence under s 23A, it can be seen that the cases will be conducted on completely different bases and that different issues arise. The learned Crown Prosecutor properly concedes that the possibility of unfair prejudice is real and that the issues upon which the jury will be directed in each case will be substantially different. However, he submits that the risk can be cured by careful and well-crafted direction.
28. A PRACTICAL MATTER
29. In R v Symss [2003] NSWCCA 77 at [68] Sheller JA (with whom James J and Smart AJ agreed) said: "The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts."
30. In the present case the consideration of conserving cost is of marginal, if any, relevance. The trial is listed with an estimate of 4-6 weeks. The Crown accepts that this is probably an overestimate and that if the trials are conducted consecutively, rather than jointly, they are together unlikely to exceed by very much the 6 week estimate. A trial of Ms Tarrant alone will be be conducted with large parts of the prosecution case uncontested or tendered by way of agreed facts. The estimate provided by counsel is in the order of 2-3 weeks. A trial of the applicant alone would take longer, and it is likely that Ms Tarrant would be a witness in the prosecution case. I am told that a significant amount of the evidence would be reduced to summaries and charts and that the main live issue would be what inferences can be drawn from those facts. That trial is likely to occupy 4-5 weeks.
31. Even allowing for the likelihood that these are under-estimates, the total length of two back-to-back trials is not so much greater than the estimate for a joint trial that the consideration of the conservation of costs is not one that looms large in a principled consideration of the present application. The Crown Prosecutor, with his customary fairness, does not submit to the contrary.

MS TARRANT AS A WITNESS

1. The Crown Prosecutor indicated on the hearing of the application that if the trials are separated, and in whatever order the trials are conducted, Ms Tarrant will be called by the Crown as a witness. If the trials are separated, it is the Crown's intention to call Ms Tarrant for trial first. She would then be called as a witness in the applicant's trial. Even though the applicant is on remand with bail refused, he presses the application for separate trials in spite of the additional delay that will be occasioned if the trials are run consecutively rather than jointly.
2. The applicant submits that this process will allow him to cross-examine Ms Tarrant in front of the jury. He submits that this will eradicate the embarrassment and prejudice that will attend a trial where Ms Tarrant's evidence is before the jury in circumstances where he will not be able to test her assertions (unless she gives evidence, the likelihood of which is unknown) and where the jury is directed that they must disregard her admissions in considering the case against the applicant.

PRINCIPLES RELATING TO SEPARATE TRIALS

1. Section 21(2) of the Criminal Procedure Act 1986 provides: 21(2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment."
2. Sub-section (6) provides that the powers available under the section (which include a power to adjourn and to amend the indictment) "is in addition to and not in derogation of any other power of the court for the same or similar purposes." The power to order separate trails of two co-accused is well established. The starting point is that, as a general proposition, people who are alleged to have jointly committed a crime should be tried together.
3. In the case of R v Assim (1966) 2 QB 249, Lord Sachs described the general principle 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."
4. The Court of Criminal Appeal cited this passage with approval in R v Annakin & Ors (1988) 31 A Crim R and observed at 139: "In the ultimate, each case must be dealt with according to the evidence and by reference to the considerations relevant to whether prejudice would be caused so as to prevent the accused being given a fair trial."
5. In Regina v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1997) I07 A Crim R 432 at [6] Kirby J said: "There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered (R v Oliver (1984) 57 ALR 543)."
6. The "rule" has particular application in cases involving "cut throat" defences. That is, cases where two (or more) accused are jointly charged but seek to blame each other. This issue caused division in the High Court in the case of Webb v The Queen (1994) 181 CLR 41 but the majority supported the approach of King CJ in the South Australia Court. Toohey J (with whom Mason CJ and Mchugh J agreed on this point) said at 88-89 (citations omitted): "King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other'. What King CJ referred to as "strong reasons of principle and policy" were discussed by his Honour in Reg. v. Collie. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others Reg. v. Demirok. 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 Reg. v. Harbach."
7. Deane J disagreed, saying at 80: "I would, however, wish to stress that it is important that general comments by appellate judges about the desirability of placing the whole picture before the jury should not be misconstrued as an implicit endorsement of the notion that a consideration favouring a joint trial is that it will enable evidence which is inadmissible against a particular accused to be placed before the jury charged with the determination of the guilt or innocence of that accused. Such comments should be understood as referring only to evidence, such as the sworn evidence of one accused, which is admissible against both accused and which might otherwise be unavailable to be led by the Crown. So far as evidence which is not admissible against both accused, such as a confessional or unsworn statement by one of them, is concerned, the fact that it will be placed before the jury charged with determining the guilt or innocence of the other accused should always be seen as a factor militating in favour of separate trials. 24. Nor do I subscribe to the view that the reasons which favour the joint trial of persons who are charged with committing an offence jointly are particularly strong in cases where such persons seek to cast the blame on one another. Particularly where the accused has made a confessional statement and in jurisdictions where an accused is permitted to make an unsworn statement, the dangers of unfair prejudice to one accused from material which is inadmissible against him or her being placed before the jury seem to me to be exacerbated in such cases. Far from the desirability of avoiding "inconsistent verdicts" assuming particular importance, there is a particular danger in such cases that popular notions of the need for consistent verdicts may tend to subvert the requirement of proof beyond reasonable doubt. If, for example, each of two defendants seeks to exculpate himself or herself from guilt of a crime, which both or one of them undoubtedly committed, by casting the entire blame on the other, it is difficult to see any particular relevance of the need for consistent verdicts apart from the superficial and mistaken notion that there would be something "inconsistent" about an acquittal of both. Indeed, where there is a joint trial in such a case, it is desirable that the trial judge stress to the jury that, while the jury may think it apparent that the crime was committed by at least one of the accused, there would be nothing inconsistent in their finding that the guilt of neither had been proved beyond reasonable doubt."
8. The majority and prevailing view has been applied consistently since the decision in Webb v The Queen: see, for example, R v Fernando and Anor [1999] NSWCCA 66. Senior Counsel for the applicant acknowledges that in cases where two people alleged to have committed the same crime (either jointly or otherwise) seek to blame one another, and exculpate themselves, the general rule is that there will be a joint trial. However, it is submitted that this is not such a case. The obvious distinction is that Ms Tarrant admits her own involvement in the killing of Mr Rez. She does not seek to exclulpate herself by blaming the applicant. She admits that they acted in concert. Further, it appears that the applicant does not seek to cast blame upon Ms Tarrant (apart from accepting what the police told him as to Ms Tarrant's admission).
9. In R v Middis (Supreme Court (NSW), 27 March 1991, unrep) Hunt J 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."
10. In R v Pham [2004] NSWCCA 190 Adams J discussed the term "immeasurably" stating: "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. I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant's case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender's case is material. Indeed, the opposite would seem to be the case since, if the co-accused's case was weak, or weaker than the applicant's, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case."
11. Spigelman CJ agreed subject to some additional remarks made by Hulme J. All three Judges were satisfied that the trial had miscarried.
12. The Applicant relies on what was said in Middis and submits that what is otherwise a circumstantial case, albeit a very strong one, will be made "immeasurably stronger" by reason of the evidence contained in Ms Tarrant's ERISP which would otherwise be inadmissible against the applicant. The Crown Prosecutor submits to the contrary and relies on the strength of the case and the fact that the statements made by Ms Tarrant are able to be proved by other evidence. Particular reliance is placed on the inferences to be drawn from the text message exchange at the time of alleged murder.

CURING PREJUDICE BY DIRECTION

1. As I understand it, the Crown concedes, as it must, that there is real potential for prejudice arising from the conduct of a joint trial together. Apart from pointing to the strength of the prosecution case and doubting, in that context, whether it would be made "immeasurably stronger" by virtue of Ms Tarrant's admissions, the learned Crown Prosecutor submits that "the trial judge's directions could adequately warn the jury against impermissible use of such material from Tarrant's interview against Roff".
2. Reliance is placed on the large body of authority that attributes to the jury a capacity to put prejudicial evidence to one side and to comply with the trial judge's directions. For example, in Gilbert v R [2000] HCA 15; 201 CLR 414 McHugh J said at 425 [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. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. 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. It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it: Gammage v The Queen (1969) 122 CLR 444 at 451. But that only means in Lord Mansfield's words that, although "[i]t is the duty of the Judge ... to tell the jury how to do right ... they have it in their power to do wrong": R v Shipley (1784) 4 Doug 73 at 170 [99 ER 774 at 824]."
3. Gleeson CJ and Gummow J said 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."
4. There are many statements in the NSW Court of Criminal Appeal to similar effect: see for example, R v Jamal [2008] NSWCCA 177; 72 NSWLR 258 at [17]-[21].
5. In R v Simmons; R v Moore (No 4) [2015] NSWSC 259, in the context of determining whether a trial by judge alone order should be made, I referred at [83]-[92] to the capacity of jurors to disregard prejudicial material and to follow directions to do so. At [87] I noted the comments of academics who have done studies and written on the subject: "Academic writers have questioned this 'near heroic belief that jury directions can cure negative impressions formed about an accused' and suggested that 'there is no evidence to suggest that this is anything other than judicial wishful thinking': see Mirko Bagaric, "The community interest in bringing suspects to trial trumps the right to an impartial decision maker - at least in Victoria" (2010) 34(1) Criminal Law Journal 5 at 8. Bagaric refers to a 'body of work that suggest that once people form an adverse view they cannot simply discard their preconceptions upon command'."
6. As I said in R v Simmons (No 4) at [88]: "[T]he discretions residing in a trial judge to exclude prejudicial evidence, to suppress evidence during the currency of a trial, to discharge a jury without verdict if inadmissible evidence comes before it and to order separate trials of co-accused and severance of multiple counts are all examples of legal remedies which would not exist if it were universally the case that juries were capable of obeying directions and disregarding prejudicial material. It is a question of degree and turns on a thorough analysis of both the nature and extent of the prejudicial material and the method by which it will be introduced into the trial."
7. In R v Debs [2011] NSWSC 1248, a case in which RS Hulme J determined that certain prejudicial material should be removed from various internet websites, his Honour referred at [30]-[32] to various notorious cases where jurors had disobeyed directions.
8. However, I must (and do) proceed on the basis that it is generally assumed that jurors are capable of obeying directions to treat each case separately and only to consider relevant admissible evidence in the case of each accused.
9. In Pham, one of the important features of the case was that the jury would be required to make an assessment of the credibility of two critical witnesses. In the case of one accused (Phong) the jury could use the contents of the Phong's statement as providing corroboration for the evidence of the witnesses. Having made an assessment based on that evidence in Phong's case "it would have been virtually impossible, as a matter of common sense, for the jury to disregard Phong's interview in dealing with the case against the appellant, despite the emphatic directions": per Adams J at [34], see also Hulme J at [8].
10. In R v Iskandar [2011] NSWSC 1192, Davies J ordered separate trials where two co-accused had made statements implicating the accused. The case against the accused was otherwise strong and the outcome of the case would likely turn on inferences to be drawn concerning the accused's intention. After providing a helpful summary of the relevant law, Davies J concluded: "In my opinion, where the jury is called upon in the case against the Applicant to draw inferences about when the requisite intention was formed, it would be very difficult for them to disregard the prejudicial evidence contained in the evidence of Mr Maiava and Mr Lau. There would be a positive injustice to the Applicant if the jury was to hear that evidence at his trial. The likelihood is real and not inconsequential."
11. Similar considerations arose in R v Singh (Supreme Court (NSW), 10 November 2011, Fullerton J, unrep). The co-accused's interview implicated the accused and also raised questions of duress. Fullerton J noted (at [39]-[40]) the predictive nature of the exercise to be undertaken when an application for separate trial is made. Her Honour concluded: "44. Despite the considered approach of the applicant's counsel, there is no doubt that considerable focus will be directed in both the Crown case and the defence case of the co-accused to proving to the truth and reliability of inadmissible and highly prejudicial evidence both implicating the applicant in the murder of the deceased in circumstances and proving his bad character where in a separate trial that evidence will not be lead. 45. In these circumstances, I am unable to see how even the most emphatic and repeated directions from the trial judge can guard against the risk that a jury may misuse the inadmissible material, or at least be unable to effectively separate the issues they are asked to resolve in the case of the co-accused on the evidence admissible in their cases and the issues that arise on the very different evidence tendered by the Crown to prove the applicant's guilt."
12. R v Lu and Pham [2007] NSWSC the Crown presented its case as one involving a common purpose or extended joint criminal enterprise. The co-accused took part in separate police interviews in which they provided inconsistent versions of events. Price J said: "24. Although I have assessed the comparative strengths of the cases against each of the accused as about the same, there is a real risk that the Crown case against Pham will be made significantly stronger by reason of the inadmissible material. In this instance a clear and emphatic direction that the inadmissible material must be ignored may not be sufficient to avoid a miscarriage of justice. …. 28. Klintworth's statement to police in 2005 has a potential to strengthen the reliability of the inadmissible admissions in Lu's ERISP. The prejudice to Pham, already very high, would be enhanced. It could not be cured by a strong direction."

CONCLUSION

1. These, and many other cases in which decisions on such issues have been determined in this court or on appeal, demonstrate that the discretion to order separate trials must be exercised by reference to the particular facts of the case, the nature of the allegedly prejudicial evidence and likely conduct of the trial including the directions to be given to the jury.
2. In the present case the risk of prejudice that will arise in a joint trial is unable to be cured by strong and careful directions. I come to this conclusion based on a global review of the evidence and a consideration of the kinds of directions that could be given in an attempt to cure the prejudice. There are two particular factors that I should mention.
3. First, the issues in the trials will be completely different. In Ms Tarrant's case, the jury would be invited by both parties to accept that the circumstantial case against her is corroborated by her admissions that she and the applicant were jointly involved in the plan to scare, harm or kill Mr Rez. Having come to the conclusion that the elements of murder were established, the jury would then be called on to consider whether to accept her defence of substantial impairment. The same jury would be required to be put aside its findings in relation to the inferences properly to be drawn from the circumstantial case when it was considering the applicant's case and to disregard Ms Tarrant's admissions implicating herself and Mr Roff when assessing the same body of circumstantial evidence. To adopt the words of Hulme J in R v Pham, there is no practical way that the jury could assess the circumstantial case against the applicant, and determine whether any explanation or inference existed that is inconsistent with guilt, while accepting those same inferences based on the same evidence and circumstances in the case of the applicant.
4. Secondly, Ms Tarrant's admissions came in the course of an interview where she initially denied or minimised her own involvement in the killing. It was only after parts of the circumstantial case were laid out before her that she implicated herself. Apart from an acceptance that the circumstantial case appeared to be overwhelming as it was presented to her in the interview, there is no explanation for her later statements incriminating herself. This is a significantly different case to one where an accused, motivated to exculpate themselves, attempts to shift the blame to their co-accused.
5. I have taken into account that the prosecution case is that the two accused acted jointly and in concert and that most of the evidence in the case is common to both accused. I accept that separation of the trials will result in a duplication of the evidence and a somewhat longer trial. I have considered the inconvenience that this will create to the Crown, the investigating police and to the lay witnesses. I have commenced from the proposition that ordinarily in a case such as this, there will be a joint trial. Against that, it is clearly preferable and in the interests of justice that Ms Tarrant's version of events is formally a before the jury that is to consider the applicant's guilt and equally important that he have the opportunity to test that version by cross-examination.
6. The prejudice and embarrassment that would be occasioned by a joint trial cannot be overcome by direction, no matter how clear and cogent and that the interests of justice demand that the accused be tried separately.

ORDERS

1. Accordingly, I make the following orders: 1. Order that Raymond Isaac Roff is to be tried separately from Sarah Renae Tarrant. 2. Confirm the trial date of 21 March 2016 in respect of Sarah Renae Tarrant with the trial of Raymond Isaac Roff to proceed immediately thereafter. 3. Note that the file will be referred to the Criminal List Judge for allocation of a trial Judge and that the trial Judge may arrange a call-over in February 2016.

Amendments 23 July 2020 - Typographical error in [52]. 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: 23 July 2020