Consideration
82By s 21(2)(b) of the Criminal Procedure Act 1986 the Court has the power to order a separate trial.
83The general principles to be applied in determining an application for a separate trial are well established. In R v Middis, supra, Hunt J (as his Honour then was) said:
"Briefly, the relevant principles are that:
(i) Where the evidence against an applicant for a separate trial is significantly weaker and different to that admissible against another or the other accused to be jointly tried with him, and
(ii) Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and
(iii) 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 will be caused to him in a joint trial."
84See subsequent decisions in R v Baartman (NSWCCA, 6 October 1994, unreported) and R v Pham at [48].
85In Pham, Adams J (with whom Spigelman CJ and Hulme J agreed) said, in relation to the principles set out by Hunt J in Middis:
"[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.
[40] 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."
86The observations of Adams J in Pham as set out above have subsequently been approved in Madubuko v R [2011] NSWCCA 135, Hodgson JA (with whom Hoeben J (as his Honour then was) and Grove AJ agreed).
87The Crown in the present proceedings alleges that the applicant and his co-accused were parties to a joint criminal enterprise. The Crown case against the applicant is a circumstantial one. That said, however, the Crown has submitted that it has a strong case in establishing the applicant as having been the person who assaulted the deceased by smashing a wine bottle on the deceased's head, the deceased having been assaulted by hitting and kicking before and after that incident by other members of the group which the Crown alleges jointly set upon the victim.
88As has been observed by the Crown, where the Crown case is that the accused persons were parties to a joint enterprise, the starting point is a joint trial: Webb & Hay (1994) 181 CLR 41 at 88-89 per Toohey J; Domican (1989) 43 A Crim R 24 at 26.
89The Crown has contended that this rule applies particularly in cases where co-accused place the blame on each other: Webb & Hay, supra; Ignjatic (1993) 68 A Crim R 333 at 339; Fernando [1999] NSWCCA 66 at [203].
90In the present applicant the accused bears the onus of establishing the reasons for an order granting a separate trial and in that respect demonstrate that there is a real risk that positive injustice will be caused to him as a consequence of a joint trial.
91In the present case it is difficult to determine the relative strengths and weaknesses of the Crown case against the applicant and his co-accused JH. On a question such as that in R v Iskander [2011] NSWSC 1192 Davies J observed:
"32 If the first principle in Middis has been modified in Pham so that the issue is not, in the first place, a consideration of the relative weakness and strength of the Applicant and the co-accused's case respectively, the enquiry is a similar one - whether there will be a positive injustice to the Applicant by the evidence being likely to turn a potential acquittal into a conviction: Pham at [39]. But as Adams J goes on to point out, if the likelihood is real as distinct from inconsequential then there will be a positive injustice to the Applicant."
92A little later, Davies J observed:
"35 Two things can be said about that. (Referring to directions given by trial judges). First, although the assumption is as the High Court set out, there is the sort of exception to that assumption contained in what Hunt J said in Middis and in the various cases that have followed it. The prejudice may be such that directions are unlikely to overcome the prejudice, and hence, the discretion in appropriate cases to order a separate trial. So, for example in R v Mahmoude Chami [2002] NSWCCA 136 Ipp AJA (with who Bell J agreed) accepted at [19]-[20] that despite careful and explicit directions it might be difficult for a jury to remain entirely objective.
36 Secondly, and particularly in this case where the Crown relies on joint criminal enterprise, it would be extremely difficult for the jury to understand that admissions made by one participant in the joint criminal enterprise had to be entirely put out of their collective minds when considering the evidence against the other participant in the same enterprise in circumstances where they considered that that evidence about the admissions was reliable. They could readily conclude that Andrew always had the requisite intention. Since the case is put forward as a joint criminal enterprise it would be difficult for the jury not to conclude, on the basis of that evidence, that the Applicant also had the requisite intention at the earlier time.
93The Crown, with respect, properly stated in its written submissions:
15. it is submitted that the principle in operation in the application is that which turns on identifying the vice said to be present in the trial with [JH], and then in order to succeed, demonstration to the requisite degree that measures generally employed in every criminal trial, namely jury directions, would fail in their object of achieving a fair trial, and would operate to deprive him of an acquittal that was fairly open, or worse arguably inevitable."
94Later, the Crown correctly observed:
"18 ... a weak case bolstered by impermissible evidence that changes to a degree amounting to a real possibility of an acquittal into a guilty verdict is the scenario that offends settled notions of justice. It is however not the position in the case involving the applicant."
95The Crown submissions at [19] and [20] address the relative strength of the Crown case. The essential facts which it is said the Crown must establish were:
(i) Association with the co-accused.
(ii) Presence at the party in circumstances characterising the relevant association;
(iii) Presence at the site of the assault;
(iv) Participation either directly, or as a product of his criminal complicity, in the assault on the deceased;
(v) Participation that contributed, and then only by an act or acts that contributed in a way deserving of culpability, to death.
(vi) Intention (plainly no allegation of intent to kill arises in this case against any co-accused).
96The following matters were identified as supporting the strength of the Crown case in its written submissions:
(i) The applicant's blood was located on the victim's property.
(ii) That property was located in a vehicle in which the applicant will be proven to have occupied with the co-accused.
(iii) The blood of the applicant was as a result of a fresh injury occasioned to him at about the time of the assault.
(iv) Witnesses positively identify the applicant at the party, and during the assault, because they either recognised him, identified him or described him.
(v) He is witnessed assaulting the victim with a bottle.
(vi) The bottle was later located at the scene. It was broken because it was used to assault the victim.
(vii) The broken bottle accounts for the cut and bleed of the applicant.
(viii) The blood on the victim's cap brings the applicant and the victim into material proximity with each other.
97In relation to (v) above, it was acknowledged that this sub-para is to be regarded as a statement in the nature of a submission. The Crown contends that such a conclusion was one that can be reached upon the totality of the evidence in the Crown case.
98In relation to the inadmissible evidence, namely the account given by the accused JH to Ms Khokaz, the Crown submitted that the jury will be circumspect by reason of intuition and expressly by direction as to the statement of JH in which he implicates the applicant. However, the Crown submitted there is sound reason to find that the direction instructing of its inadmissible quality as against the applicant stands no real risk of being ignored or misunderstood.
99The Crown then set out the following matters as providing support for its submissions at [22]. They included:
(i) That JH told Khokaz a lie, namely that he was not relevantly present when his associates attacked the victim. The lie is easily demonstrated by reason of the inherent internal inconsistency of his statement to the witness.
(ii) His conduct in implicating others in the assault, and excluding himself from any involvement. This was common in criminal proceedings. The cautionary directions delivered to juries warning of such statements for obvious reasons and going to its reliability, will act to reduce the weight of the statement in its content overall when it comes to be considered as self-serving to JH's advantage or otherwise. This serves to reduce the possibility that a jury will use the evidence as indicative of any relevant question of fact affecting any other party. JH's statement was said to be a classic "mixed statement" in the sense that it was partly inculpatory and partly exculpatory.
(iii) That the fact that the co-accused JH might be said to nominate the applicant as the aggressor with the bottle is an insignificant facto "... The jury will find as a fact that evidence supporting the applicant's use of a bottle is to be found in a reliable and independent body of evidence, namely, the forensic and DNA evidence connecting him to the bottle (there being no other bottle), it being identified directly or by scientific means, in a strong circumstantial way."
(iv) That the conversation was tape-recorded does not provide any comfort to the applicant. First, the witness could give evidence of the conversation from her recollection, but, it being recorded, does not change its evidentiary quality. The fact that it is recorded allows evidence to be given of its reliability. This it was said in turn serves to advance the submission that without doubt it was a conversation which could not be relied upon insofar as JH "shifts blame".
100In relation to (iii) above, I note that there is no DNA or scientific evidence that links the applicant to the bottle.
101In balancing the factors in favour of a joint trial against the prejudice to an accused, it is necessary to consider
the strength of the Crown case against the applicant.
The nature of the prejudicial material.
The fact that such material is inadmissible in the trial of the applicant.
102The consideration of those matters are to be assessed with a view to determining whether the inadmissible, prejudicial material would be likely to turn a potential acquittal into a conviction. If it would, then it would amount to a positive injustice. The likelihood of the inadmissible material having that effect is to be assessed having regard to both its inherent nature or character and the context of the Crown case. The inadmissible evidence of Ms Khokaz plainly would have a prejudicial effect in that it directly bears upon the applicant as the person who assaulted the victim with a bottle.
103As to the issue of context, the Crown case against the applicant - including in particular the evidence as to his association with the group (the Wakeley Boys) at the crime scene, the evidence of him picking up a bottle off the ground and as to his having a cut and bleeding hand after the attack on the victim - indicates that the Crown circumstantial case could not be considered to be a weak one. In my assessment, the Crown case is a reasonably strong circumstantial case.
104The critical question, however, is whether appropriate and cautious trial directions could ensure that the inadmissible evidence will not influence the jury in the fair and proper disposition of the trial.
105In some cases the nature of the inadmissible evidence admitted in a joint trial, not admissible against one accused, may of its intrinsic nature and having regard to the particular line or ground of defence, be such that trial directions will not be sufficient to eradicate the prejudice. See, for example, R v Taouk, supra; R v Lockett [2013] NSWSC 859 and R v Baartman, supra.
106If the Crown had admissible evidence that was capable of directly identifying the applicant as the attacker who smashed the bottle on the victim's head, then I would not consider that the prejudicial effect of the inadmissible evidence proposed to be led by the Crown would necessarily be incapable of being dealt with by trial directions. That not being the case, the question is whether the Crown's circumstantial case is sufficiently strong to support the same conclusion, namely, that cautious and firm trial directions will be capable of ensuring a fair trial.
107In the circumstances where there is no such direct evidence, the evidence of Ms Khokaz pertains to the very question at the centre of the Crown case against the applicant, namely, the identity of the person who in fact wielded the bottle. In the absence of any direct evidence in the Crown case on that aspect it is the only evidence that is capable of being seen as directly addressing that question. Evidence in that regard otherwise being absent, it is highly prejudicial to the applicant. The Crown case is made stronger by reason of this prejudicial material.
108I have concluded that clear and emphatic directions that the evidence in question is only admissible against the accused JH will not be sufficient to avoid a miscarriage of justice.
109Accordingly, I conclude that the applicant has established that there is a real risk that a positive injustice will be caused to him in a joint trial with JH. I order that the accused JP be tried separately.