R v Iaria and Panozzo - [2004] VSC 110

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1487 of 2000

THE QUEEN

JOSEPH IARIA and RICHARD XAVIER PANOZZO

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JUDGE:	Nettle J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 April 2004
DATE OF RULING:	2 April 2004
CASE MAY BE CITED AS:	R v Iaria and Panozzo (separate trial)
MEDIUM NEUTRAL CITATION:	[2004] VSC 110

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Criminal law – practice and procedure – severance – application for separate trial – test to be applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W.H. Morgan-Payler QC	Kay Robinson, solicitor for Public Prosecution
For the Joseph Iaria	Mr S.E. Grant	Lewenberg & Lewenberg
For Richard Xavier Panozzo	Mr R.A.R. Lewis	Kerry R. Clancy

HIS HONOUR:

This is an application by the accused, Richard Panozzo, for a separate trial.

The application is put first upon the basis that there are a number of out-of-court statements made by the co-accused, Joseph Iaria, which are admissible against Iaria but inadmissible against Panozzo and which are highly prejudicial to Panozzo. It is contended that there is no judicial warning that would be effective in confining the jury's consideration to the evidence properly admissible against Panozzo.

Secondly, it is said that given the course of the last trial, it is likely that the accused Iaria will elicit considerable evidence of bad character against Panozzo which would be inadmissible against him if he were tried alone and that whatever direction might be given to the jury to disregard that evidence for the purposes of judging the case against Panozzo, the jury would find it extremely difficult to put the inadmissible evidence out of their minds.

Thirdly, it is said that the strength of the case against Iaria is so much more than that against Panozzo, that the inadmissible evidence is likely to assume critical proportions and thus, even if in other circumstances a judicial direction to the jury to disregard the inadmissible evidence might be regarded as effective, that is not so in this case.

I take the principles which apply in this state to an application for separate trials to be as set out in the pronouncements of the Court of Criminal Appeal in R v Demirok[1]; R v Gibb and McKenzie[2]; Jones and Waghorn v R[3]; and Heaney v R[4]. The overriding principle is of course one of fairness to the accused, but in order to give that principle practical content, there are to be found beneath it a number of propositions based on or derived from the need to afford fairness to all parties, but particularly to the accused.
[1][1976] VR 244
[2][1983] 2 VR 155
[3](1991) 55 A Crim R 159
[4][1992] 2 VR 531

Relevant to the application in hand, those propositions to include:

§ first, that where two or more persons are charged with murder at which all were present at the time of the killing, the interests of justice ordinarily require that they be tried together;
§ secondly, the fact…

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.

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Details

Case: [2004] VSC 110
Decision Date: 2 April 2004

CaseChat Overview and Summary

In the matter of R v Iaria and Panozzo, the defendants faced criminal charges in the Supreme Court of Victoria. The nature of the dispute involved a joint trial application, where the defendants sought separate trials on the grounds of potential prejudice from each other's evidence. The case revolved around the application of the legal test for severance, specifically whether the joint trial would be unfair to one or both of the accused.

The primary legal issue before the court was to determine the appropriate test for severance in joint trials and whether the application met the necessary criteria for a separate trial. The defendants argued that a joint trial would result in significant prejudice due to the nature of their respective defences and the risk of contamination from each other's evidence. The prosecution contended that the test for severance had not been met, and a joint trial would be appropriate.

The court examined the established principles for severance in joint trials, emphasising the need for a high threshold to be met for separate trials. It was determined that the test for severance requires demonstrating that a joint trial would be unfair to one or both of the accused to the extent that it would substantially affect the fairness of the proceedings. The court found that the application did not sufficiently establish that the joint trial would be unfair. The court held that the application for separate trials was not met, and the defendants would face a joint trial. The reasoning was based on the absence of clear evidence that the joint trial would result in a significant risk of prejudice that could not be mitigated by proper directions to the jury.

Orders