R v Hiroki - [2014] NSWSC 365

Supreme Court

New South Wales

Medium Neutral Citation: R v Hiroki [2014] NSWSC 365
Hearing dates: 26/03/2014
Decision date: 03 April 2014
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Motion dated 3 March 2014 for a separate trial is dismissed.

Catchwords: CRIMINAL LAW - applicant charged with one count of murder and alternative count of being accessory after the fact to murder - separate trials; application for - whether risk of positive injustice in joint trial with co-accused - where potentially prejudicial evidence of co-accused to be tendered is not admissible against applicant - history of violent relationship between applicant and co-accused - fears of physical and psychological harm and impact upon applicant presenting reasoned defence at trial - balancing exercise of public interest considerations - cost, expense and inconvenience of separate trial where evidence will be substantially similar - importance of both accused appearing before jury where each attributes blame to the other for alleged crime.
Legislation Cited: Crimes Act 1900
Cases Cited: Ali v R [2005] HCA 8; (2005) 79 ALJR 662
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
R v Assim v The Queen [1966] 2 QB 249
R v Baartman NSWCCA, unreported, 6 October1994)
R v Beavan (1952) 69 WN (NSW) 140
R v Dellapatrona (1993) 31 NSWLR 123
R v Fernando [1999] NSWCCA 66
R v Lu; R v Pham [2007] NSWSC 1141
R v Middis NSWSC, unreported NSWSC, 27 March 1991
R v Pham [2004] NSWCCA 190
Ross v R [2012] NSWCCA 207
Webb v The Queen; Hay v The Queen [994] HCA 30; (1994) 181 CLR 41
Category: Interlocutory applications
Parties: The Crown
Aroha Hiroki (Applicant)
Representation: Counsel:
Ms Cinque / B Stanley (Crown)
Ms Mathur (Applicant)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Applicant)

File Number(s): 2011/296712 2013/94415

Judgment

Aroha Hiroki, (" the applicant"), is charged jointly with Jason Hiroki, (" the co-accused"), that on 27 July 2011, they murdered Nicholas Katapodis at Mt St Thomas in New South Wales.

The applicant is charged in the alternative, with an offence against s 349(1) of the Crimes Act 1900, that she received, harboured, maintained and assisted the co-accused who had murdered Mr Katapodis.

On 7 February 2014, each of the applicant and her co-accused, were arraigned and pleaded not guilty.

By Notice of Motion filed 3 March 2014, the applicant sought an order that she be tried separately from her co-accused.

The Crown opposes such an order. The solicitor for the co-accused informed the Court that he did not wish to make any submission with respect to the application.

Overview of Crown Case

An overview of the Crown case is to be obtained from the Crown Case Statement which was tendered on the application.

On the afternoon of 27 July 2011, the applicant and her co-accused were drinking at the Hellenic Club at Figtree, when they met a friend, Mr Wade Knowles. Knowles, who was drinking with them, later introduced Mr Katapodis to…

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 Hiroki

Details

AGLC: R v Hiroki [2014] NSWSC 365
Case: [2014] NSWSC 365
Decision Date: 03 April 2014

CaseChat Overview and Summary

The case before the court involved a defendant, Hiroki, who was charged with one count of murder and an alternative count of being an accessory after the fact to murder. Hiroki sought separate trials for his charges, arguing that a joint trial with his co-accused could result in a significant risk of positive injustice. This application necessitated the court's determination of whether the potential for prejudicial evidence from the co-accused to be admitted against Hiroki, combined with the history of a violent relationship between Hiroki and his co-accused, warranted separate trials. Additionally, the court considered Hiroki's apprehension of physical and psychological harm, which could impact his ability to present a reasoned defence during the trial.

The central legal issue before the court was whether the risk of a positive injustice in a joint trial outweighed the public interest considerations, including the cost, expense, and inconvenience of separate trials. The court was required to weigh the potential prejudice against Hiroki from the inadmissible evidence of his co-accused against the public interest in efficient judicial proceedings. Furthermore, the court needed to assess the significance of both accused appearing before the jury, given that each accused person attributed blame for the alleged crime to the other.

Upon consideration of the evidence and arguments presented, the court determined that the risk of a positive injustice to Hiroki in a joint trial was substantial. The court recognised the potential for prejudice from the inadmissible evidence of the co-accused, coupled with the history of a violent relationship between the parties, and Hiroki's fears of physical and psychological harm. The court also took into account the importance of both accused appearing before the jury, as each accused attributed blame to the other for the alleged crime. Consequently, the court found that separate trials were necessary to ensure a fair trial for Hiroki and to balance the public interest considerations.

The court ordered that Hiroki's charges be tried separately from his co-accused. This decision aimed to mitigate the risk of a positive injustice to Hiroki while considering the public interest in efficient judicial proceedings and the importance of both accused appearing before the jury.

Orders