R v Bechalany - [2018] NSWSC 420

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Bechalany [2018] NSWSC 420
Hearing dates: 5 April 2018
Date of orders: 06 April 2018
Decision date: 06 April 2018
Jurisdiction: Common Law
Before: Hidden AJ
Decision:
Trial by judge alone refused.
Trial of first count to be separated from trial of the remaining counts.

Catchwords: CRIMINAL LAW – application for trial by judge alone or separate trial of counts – indictment containing three counts – aggravated break and enter, murder, manslaughter – whether trial of aggravated break and enter with the other two counts impermissibly prejudicial to the accused – whether separate trials should be ordered or trial by judge alone
Legislation Cited: Criminal Procedure Act 1986, s 132
Cases Cited: R v Belghar [2012] NSWCCA 86, (2012) 217 A Crim R 1
R v Villalon [2013] NSWSC 1516
Sutton v The Queen (1984) 152 CLR 528
Category: Procedural and other rulings
Parties: Regina
Robert Bechalany
Representation:
Counsel:
C Maxwell QC (Crown)
R Pontello (Accused)
Solicitors:
The Solicitor for the Director of Public Prosecutions (NSW) (Crown)
Kiri Kyriacou Lawyers (Accused)

File Number(s): 2015/111895
Publication restriction: No

Judgment

HIDDEN AJ: The accused, Robert Jack Bechalany, is to face trial on an indictment charging him with aggravated break and enter and commit serious indictable offence (count 1), murder (count 2) and, in the alternative, manslaughter (count 3). Before me is an application by the accused for trial by judge alone or, alternatively, that the first count be tried separately from the trial of the second and third counts.
For the purpose of the application the parties were agreed that I should have regard to the Crown case statement which has been filed, and I received in evidence a recorded interview by police of Mr Peter Barbara, the alleged victim of the aggravated break and enter offence, and some CCTV footage of the incident giving rise to counts 2 and 3, to which I shall refer as the “homicide counts”.

Crown case

Put shortly, it is the Crown case that the accused had frequently bought amphetamines from Mr Barbara at Mr Barbara’s home at St Clair. In addition, a few months before the events giving rise to the trial, Mr Barbara had lent the accused about $30,000. That loan remained unpaid, it became the subject of argument, and their relationship soured.
In the evening of 13 April 2015, the accused and five unidentified men broke through the front door of Mr Barbara’s home. The accused and some of the other men assaulted Mr Barbara, causing him significant injuries. One of the unknown men seized amounts of methylamphetamine and $1,000 in cash. This was the conduct constituting the first count, aggravated breaking and entering and committing a serious indictable offence, being the infliction of actual bodily harm on Mr Barbara, the circumstance of aggravation being that the accused was in the company of the other men. It is convenient to refer to this offence as the “home invasion”.
In the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bechalany

Details

AGLC: R v Bechalany [2018] NSWSC 420
Case: [2018] NSWSC 420
Decision Date: 06 April 2018

CaseChat Overview and Summary

The case of R v Bechalany was heard in the Supreme Court of Victoria. The defendant, Bechalany, was charged with aggravated break and enter, murder, and manslaughter. The crux of the dispute was the appropriateness of Bechalany's trial being conducted in a single proceeding with the other charges or if separate trials should be ordered or if the trial should be by a judge alone. The trial judge was tasked with determining whether the simultaneous trial of these charges would be unfairly prejudicial to the defendant.

The legal issues that the court had to resolve were whether the combination of the aggravated break and enter charge with the murder and manslaughter charges would create an impermissible prejudicial environment for Bechalany's trial. It was also necessary to consider whether the prejudicial effect of trying all counts together outweighed the public interest in judicial efficiency and whether the trial should instead be conducted by a judge alone. The court had to balance the rights of the accused against the interest of ensuring a fair trial and the efficient administration of justice.

The court held that the prejudicial effect of trying all the charges together could potentially deny Bechalany a fair trial, despite the public interest in judicial efficiency. The court reasoned that the cumulative prejudicial effect of the aggravated break and enter charge alongside the murder and manslaughter charges could unfairly influence the jury's perception of the defendant's character and propensity to commit violent acts. The court determined that separate trials would mitigate this risk and allow for a fairer assessment of each charge on its own merits. Consequently, the court ordered that the charges be tried separately to avoid any undue prejudice to Bechalany's right to a fair trial.

The final orders of the court were that the charge of aggravated break and enter should be tried separately from the charges of murder and manslaughter. This decision ensured that the prejudicial effect of the combined charges was minimised, thereby upholding the principles of a fair trial and protecting the rights of the defendant.

Orders