Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Malouf Criminal Lawyers (Accused Sione)
Aaron Legal (Accused Dawson)
File Number(s): 298703/2021; 225943/2021
[2]
JUDGMENT
HIS HONOUR: Both accused Richard Sione and Kayla Dawson are to be the subject of a joint trial listed on 5 February 2024 in which they will be charged with the murder of a 16 year old boy at Doonside on 4 August 2021.
Each accused has applied for a judge-alone trial and to be tried separately from each other. It was agreed that the logical order of dealing with the applications was to determine the judge-alone trial issue first as the outcome would have a bearing upon the resolution of the separate trial issue.
The Crown case is that Jason Galleghan, aged 16, was bashed into a state of unconsciousness by a group of people in a bedroom of a house at Doonside. When authorities were alerted about an hour later, he was taken to hospital but died two days later from the injuries he sustained. The assault was initially by the accused Sione alone but witnessed by a number of others. He then left the scene at which time the deceased was still conscious. It is alleged the accused Sione told others to "finish him off". Those present at that time, and during the second phase of the assault, were mostly juveniles but included the accused Dawson who was aged 19.
The Crown opposed the applications in respect of both accused. There is an urgent need to resolve these issues given this is the last day of the Court term and there appears to be a significant amount of preparatory work remaining for the parties before the commencement of the trial in the second week of the 2024 term. The following are abbreviated reasons for my decision as to the judge-alone trial applications.
The Crown case involves direct and circumstantial evidence and includes witness testimony, forensic evidence and video recordings made on mobile phones of part of the assault upon the deceased.
The case against the accused Sione is that he was responsible for assaulting the deceased for about 10 minutes and then he left the house. The deceased was then subjected to a joint assault by multiple juveniles for a further 20 minutes until he fell into unconsciousness.
The case against the accused Dawson is that she was responsible for the boy being lured to the house for the purpose of assaulting him as punishment for his perceived theft of her AirPods. She was present during at least the second phase of the assault and filmed some of it.
In respect of both accused, the Crown contends that they are liable to be found guilty of murder upon the following bases: [1]
1. That the accused, with an intention to kill or cause a really serious injury, inflicted injuries that caused or substantially contributed to the death of the deceased (direct responsibility).
2. That the accused was a party to a joint criminal enterprise to intentionally kill or cause really serious injury to the deceased (joint criminal enterprise).
3. That the accused was part of a joint criminal enterprise to assault the deceased, during which they foresaw the possibility of, but did not agree to, another party to the enterprise intentionally killing or inflicting grievous bodily harm, and, with that awareness, continued to participate in the enterprise (extended joint criminal enterprise).
4. That the accused was part of a joint criminal enterprise to commit an offence carrying a maximum penalty of 25 years' imprisonment, being a specially aggravated kidnapping pursuant to s 86(3) of the Crimes Act 1900 (NSW), and an act (or acts) causing the death of the deceased occurred immediately after, in the case of the accused Sione, or at the time, in the case of the accused Dawson (constructive murder).
The Crown relies in respect of each accused in part upon things they said and did subsequent to the incident, such evidence being only admissible against the individual accused. There are some items in this category of evidence which is inadmissible but prejudicial to the other accused.
The case for the accused Sione was described as follows in the written submissions: [2]
The principal issue at trial in the case for the accused will be causation.
Accepting for the purpose of these submissions that the accused was involved in the initial assault upon the deceased, his asserted responsibility for murder is significantly complicated by his departure from the property sometime before 4.20 pm and the violent assaults that occurred after his departure which caused death.
The case for the accused Dawson relies upon the partial defence set out in s 23A of the Crimes Act of substantial impairment by mental health or cognitive impairment. [3]
Section 132 of the Criminal Procedure Act 1986 (NSW) provides that if the prosecutor does not agree to an accused person's application to being tried by a judge alone, the Court may make a trial by judge order if it considers "it is in the interests of justice to do so": s 132(4).
Written submissions for the parties have made helpful references to the principles and the authorities relevant to the determination of such an issue. I will not repeat them.
I am satisfied that each accused has sought and received legal advice in relation to the effect of the court making a trial by judge order: s 132(6).
I note s 132(5) provides that a court may refuse to make a trial by judge order if it considers that the trial will involve a factual issue that requires the application of objective community standards. The provision goes on to give some examples of such issues.
There are a number of factors relied upon by each accused in support of their applications. Complexity is one. In the application of Ms Dawson, reliance is placed on the complexity of contested expert evidence as to her mental and cognitive capacity in two respects. One concerns her capacity to understand events and to foresee consequences. The other concerns the question of evidence relevant to the first limb of the partial defence of substantial impairment in s 23A of the Crimes Act. The defence intend to rely upon evidence given by a neuropsychologist set out in two reports that have been tendered and the Crown intends to contest that with evidence by a forensic psychiatrist. Senior counsel for the accused Dawson acknowledged that the second limb in s 23A raises a question of "objective community standards", but argued, in effect, it was not such as to outweigh all the other matters she relied upon.
Complexity in relation to the facts is relied upon in the application of Mr Sione. The jury will hear oral evidence from witnesses describing what they saw or heard (or both) in relation to the first phase of the assault upon the deceased. They will hear further evidence of that type but also have video recordings of the second phase of the assault. The defence case will be that there is doubt about whether the second phase was a seamless continuation of the first phase or a separate assault committed in the absence of the accused. It is contended that there will be difficulty for a jury to put aside the video recordings when making an assessment of the nature of the assault that occurred in the first phase.
A further aspect of complexity referred to is the bases of liability of each accused. The Crown has given notice, only in the last day to the accused Sione and only recently to the accused Dawson, that it will contend that each accused is liable upon any or all of the four ways described earlier (at [8]).
Both accused raised concern about the likely emotional response of the jury to the evidence, particularly the video recordings. They raise concerns about the difficulty for the jury being able to remain dispassionate and objective and put aside emotions, feelings of prejudice and revulsion. I have seen the recordings in the course of dealing with sentence proceedings for two of the juveniles involved in the second phase of the assault upon the victim. They are, indeed, graphic and disturbing in depicting an unbridled and brutal group attack upon a cowering, vulnerable boy. Of course, this could be the subject of forewarning to members of the jury panel to allow an opportunity for applications to be made to be excused from the jury empanelment process. It could also be the subject of directions given to the jury once empanelled, and perhaps repeatedly so.
Senior counsel for the accused Dawson drew attention to her client having particular need for an altered approach to the way a trial might proceed. Matters described in the neuropsychologist's report include that she will need the trial to proceed more slowly and it will be necessary for there to be more frequent breaks to assist her ability to understand and follow the trial as it progresses. This is not a major factor, but it is put in submissions as something that can be more easily accommodated in a judge-alone trial than a jury trial.
Both parties have referred to evidence that will be admitted in the case concerning the co-accused but not against themselves which could be prejudicial to them. One example referred to by the accused Dawson was evidence admissible only against her co-accused that subsequent to the critical events he made an admission to a civilian witness that when he left the scene he told the "young ones" there to "finish him off". Compared to the accused Sione, the accused Dawson was relatively "young" and she was one of the persons who remained at the home after the accused Sione had left. [4] An example relied upon by the accused Sione was evidence that may only be admissible against him for a "context" purpose but which would be more immediately admissible against the accused Dawson as pertinent to her guilt, such as her involvement in luring the deceased to the home. [5]
The case concerning the accused Dawson does not appear to give rise to any witness credibility issues, but the case concerning the accused Sione does. The Crown contends that, in the circumstances of this case, this is a matter that favours a jury trial. I do not accept this, with respect. Judges deal with such issues regularly and there is nothing about the issues that might arise in this case that renders assessment by a jury preferable.
Another aspect of prejudice raised on behalf of the accused Sione was that a jury might perceive that he was "the responsible adult" to the various juveniles involved in the incident. He was the oldest person, aged in his early 30s, and was referred to as "Dad" by others. It was submitted that the jury might see him as something of a "Fagin" influence upon them. [6]
Submissions for the accused Sione also placed reliance upon a judge-alone trial being a more efficient mode of proceeding, an example being that there would be fewer objections because a judge would more easily put aside the prejudicial or irrelevant than a jury might. [7] The Crown countered by arguing that such a matter was of little weight. [8] I agree.
The Crown accepted that there were matters of complexity, that there was inadmissible yet prejudicial material in respect of each accused and that there was an emotional aspect to the evidence. However, it was submitted these are all capable of being cured by careful explanation of the evidence and by judicial directions as to permissible and impermissible modes of reasoning. [9]
Emphasis was placed upon community values being involved in three ways. The first was in relation to an issue that was perceived as likely to arise in the case of the accused Sione of having "withdrawn" from any joint criminal enterprise when he left the house after the first phase of the assault. This would give rise to consideration of whether he had taken all "reasonable" steps to prevent the enterprise continuing. [10]
The second way was concerned with issues of credit, for example, with the witness (Mr Leuthwaite) who was expected to give evidence of a post-offence admission allegedly made by the accused Sione ("finish him off)". It was submitted that such matters were "better determined by a jury, applying the combined experience of life and the combined common sense of a group of people, rather than a determination to be made just by one person, being a judge alone". [11]
The third was concerned with an issue of intoxication and whether the accused Sione was capable of forming the specific intent for murder. The Crown did not anticipate any medical evidence being given in relation to this. The evidence would be confined to the observations of various witnesses. [12]
If any of these matters do involve an issue of "community values", they do so in limited ways. In none of them would it be a major factor in their determination.
The Crown contested the submission on behalf of the accused Sione that there was such factual complexity in his case that militated in favour of a judge alone trial. Jury directions could adequately deal with any concern that the jury might assume that the alleged assault by the accused Sione in the first phase of the incident was carried out in the same fashion as they see in the videos recorded during the second phase. [13]
The Crown placed significant emphasis on community standards being a significant factor in determination of the second limb of the substantial impairment partial defence in relation to the accused Dawson. [14] It was also submitted that it was not beyond the capacity of a jury to resolve an issue concerning her capacity to engage in consequential thinking in relation to what might have been intended or foreseen in relation to the assault of the deceased. [15]
Included in the bundle tendered by the accused Sione were various news articles reporting aspects of the case since the arrest of the accused in 2021. This was not a significant matter put in favour of a judge alone trial. I believe it adds nothing to the accused Sione's application.
[3]
Determination
I have had regard to the combined effect of all of these matters. Some of them militate in favour of there being a trial by jury, particularly the s 23A partial defence relied upon by the accused Dawson which raises an issue of objective community standards. Other matters, however, pull in the opposite direction.
I am particularly concerned with the issues of complexity. The four bases of liability the Crown is choosing to rely upon in relation to each accused is not something that is beyond the comprehension of a jury but it is not an easy matter for lay persons to grapple with (and they are not matters that even trained and experienced lawyers always find easy).
The case concerns some aspects of factual complexity and the need for a jury to be assiduous in avoiding traps such as assuming the assault that occurred in phase one, none of which was recorded, occurred in a similar fashion to that which can be seen in the recordings of part of phase two. Here there is a risk of something akin to "the displacement effect" that is spoken of in the context of identification evidence.
There is also complexity involved in the descriptions of the cause and effect of Ms Dawson's mental and cognitive difficulties and the contest that there will be in relation to whether the first limb of the s 23A partial defence is made out.
The matters of prejudice arising from evidence admitted against one accused only are mostly not matters of significance in that they are amenable to jury direction of a type that can be framed in readily understood terms. The exception to this concerns a covertly recorded conversation involving Ms Kristina Susanjara and the accused Sione that might be difficult for the jury to put aside completely when it is assessing the contested evidence of Mr Leuthwaite concerning an admission he claims the accused Sione made to him in the immediate aftermath of the events. That might perhaps also apply to contested evidence of BE as to a similar thing he claims he heard the accused say as he departed from the room where the assaults occurred.
The graphic and disturbing evidence to be tendered in the trial adds slightly to the case advanced in support of the applications.
If each of these matters were isolated they could be regarded as adequately dealt with by way of warnings and directions. It is the combination of them that gives rise to concern. That is what has lead me to conclude pursuant to s 132(4) of the Criminal Procedure Act that it is in the interests of justice that a trial by judge order be made.
[4]
Endnotes
MFI 3: Crown written submissions (CWS), 11.12.23 at [2]
MFI. 2: Sione written submissions (SWS), 1.12.23 at [29]-[30]
MFI. 1: Dawson written submissions (DWS), 5.12.23 at [7]
DWS [12], [14a]
SWS [65]
SWS [53]-[56]
SWS [46f]; T16.35
CWS [12]
T23.3-23.13
CWS [22]-[31]; T26.49-27.25
CWS [16]-[21]; T27.27-28.28
CWS [15]; T28.32-29.14
T29.50-30.29
CWS [36]; T30.38-30.49
T31.38-31.48
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Decision last updated: 06 February 2024