R v Kearnes; R v Paton

[2013] NSWSC 1139

Supreme Court

New South Wales

Medium Neutral Citation:	R v Kearnes; R v Paton [2013] NSWSC 1139
Hearing dates:	9 August 2013
Decision date:	09 August 2013
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	The trials of Peter John Kearnes and Christopher John Paton for the murder of the deceased are to proceed separately.
Catchwords:	CRIMINAL LAW - joint trial of two co-accused - application for separate trial - admission by one co-accused - whether positive injustice arises - whether evidence against applicant weaker than evidence against other co-accused - whether evidence highly prejudicial against applicant - whether weaker case is made immeasurably stronger by prejudicial material - meaning of immeasurably - impossibility of compartmentalisation of prejudicial material - positive injustice established - separate trials ordered
Cases Cited:	Assim v The Queen [1966] 2 QB 249 Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 Guimond v The Queen (1979) 44 CCC 481 Gulder v The Queen (1986) 8 NSWLR 12 R v Baartman (Court of Criminal Appeal of New South Wales, Gleeson CJ, Powell JA and Smart J, 6 October 1994, unreported). R v Beavan (1952) 69 WN NSW 140 R v Darby [1982] HCA 32; (1982) 148 CLR 668 R v Dellapatrona; R v Duffield (1993) 31 NSWLR 123 R v Ignjatic (1993) 68 A Crim R 333 R v Lu; R v Pham [2007] NSWSC 1141 R v Middis (unreported, Supreme Court of New South Wales, 27 March 1991) R v Pham [2004] NSWCCA 190 Webb v The Queen; Hay v The Queen [1983] HCA 30; (1994) 181 CLR 41
Category:	Interlocutory applications
Parties:	Regina Peter John Kearnes Christopher John Paton
Representation:	Counsel: W Creasey (Regina) P Williams (Kearnes) E Wilson SC (Paton) Solicitors: Solicitor for Public Prosecutions (Regina) Legal Aid NSW (Kearnes) Pogson Cronin (Paton)
File Number(s):	11/315156 - R v Kearnes 11/359425 - R v Paton

EX TEMPORE Judgment

1. Peter John Kearnes and Christopher John Paton were charged with the murder of Semin Rizvic (to whom I shall refer in this judgment as "the deceased") some time ago. They have been arraigned in this Court previously to today, and their trial is set down for hearing in the Supreme Court at Albury on 3 September 2013. The indictment contains a single count of murder alleged against both accused, and the proposal of the Crown is that a joint trial be conducted.

1. Mr Kearnes moves upon a notice of motion filed 31 July 2013 seeking a trial separate to that of Mr Paton. An affidavit of the solicitor for Mr Kearnes of the same date has been filed and read on the motion. The documents annexed to it, including but not limited to the Crown case statement, have provided me with a useful overview of the Crown case.

1. The Crown Prosecutor opposes the order sought in the motion. Senior counsel for Mr Paton has indicated that his position with regard to the resolution of the motion is essentially neutral. All parties have filed very helpful written submissions.

The allegation and the evidence in support of it

1. The allegation in short is that, in the early hours of 21 July 2011, Mr Kearnes and Mr Paton travelled by car from Tumut to Wagga Wagga. There, pursuant to a joint criminal enterprise to kill, the deceased was shot a number of times to the head and neck, causing his death. The motive is alleged to be ill feeling on the part of Mr Kearnes towards the deceased as a result of a romantic relationship between the deceased and the former wife of Mr Kearnes. There is also some suggestion that Mr Kearnes believed or suspected that the deceased was somehow involved in the sexual assault of children.

1. An important witness in support of the proposition that Mr Kearnes and Mr Paton committed the murder is a woman to whom I shall refer to as "Ms T". At the time she was in a brief romantic relationship with Mr Kearnes. She provided the police with an interview in which she gives detail as to the events of that evening and its aftermath. No doubt her evidence will be the subject of forensic attack, not least because, as I understand it, she had previously provided police with more than one statement to the effect that she knew nothing.

1. Other evidence includes phone records that show that a mobile phone associated with Mr Kearnes was in use in Wagga Wagga at the time in question, and that it was in communication with the phone associated with Ms T and also a Mr Minogue. The Crown position is that the telephone records with regard to Mr Kearnes go some way to supporting the evidence of Ms T.

1. There is also evidence of the sighting of a car at the scene that is broadly similar to a car associated with Mr Kearnes and Ms T.

1. Furthermore, two witnesses from the scene, Ms Gordon and Ms Douglas, engaged in picture identification parades some months after the shooting.

1. Ms Douglas did not pick a photo of Mr Kearnes from a picture identification parade that contained a photograph of him. With regard to a picture identification parade that included a photograph of Mr Paton, Ms Douglas selected three photographs, one of which was a photograph of Mr Paton. She described herself as being "pretty adamant and sure" that the photograph of Mr Paton depicted the man whom she had seen in the stairwell of the apartment block of the deceased on the evening in question.

1. As for Ms Gordon, when shown a selection of photographs that included a photograph of Mr Kearnes, she said that two photographs had a similar appearance to a man whom she had seen standing at the rear of the vehicle in the vicinity of the scene at the time in question. Neither of those photographs was a photograph of Mr Kearnes. As for her engagement in a picture identification parade containing a photograph of Mr Paton, she selected two photographs as being similar in appearance to a man seen sitting in the front passenger seat of the vehicle. The first photograph was a photograph of Mr Paton.

1. A palm print was developed from an area within the apartment block consistent with where one of the witnesses had seen a man standing. That palm print is said by a fingerprint expert to be identical to that of Mr Paton.

1. As well as that, there is CCTV evidence from the vicinity of the scene that is said to show, with reasonable clarity, the presence of Mr Paton.

1. Whilst in custody on remand, it is alleged that Mr Kearnes confessed the fatal shooting to another prisoner whom he had known for years, a man to whom I shall refer to as "Mr J". Indeed, the position of Mr J is not only that Mr Kearnes confessed shooting the deceased, he also sought to hire Mr J to have Ms T murdered in order to silence her. It is also said by Mr J that Mr Kearnes admitted that at one stage he had sought to kill Mr Paton in order to silence him as well, but the plan had to be abandoned at the last minute.

1. That evidence of a prison informer will no doubt be subject to trenchant criticism by counsel and strong warnings by me, in light of the circumstances in which it has been provided and, I presume, the character and credibility of Mr J. However, the Crown asserts that the things Mr J has said that Mr Kearnes said to Mr J about the shooting could, to state it simply, have only been known by a person who was, at the least, present at the shooting.

1. That evidence, forming as it does an alleged admission well after the completion of the alleged offence, is led by the Crown only against Mr Kearnes. In any event, although Mr J claims that Mr Kearnes said that he had committed the murder with the assistance of another man, Mr J does not assert that Mr Paton was referred to by Mr Kearnes by name.

1. Separately, but in similar vein, the Crown case against Mr Paton is that he confessed his involvement in the shooting to his aunt, Ms Mary Schwind. It is said that that lady has known Mr Paton since he was born and has been a part of his life since then. She states in short that, in late October 2011, Mr Paton told her that he was at the scene, but did not "do it". She said that Mr Paton said that Mr Paton, Mr Kearnes and Ms T travelled to Wagga to "sort out a bloke". To state the evidence of Ms Schwind succinctly, she says that her nephew said that he was present, went up to see the deceased along with Mr Kearnes and Ms T, but had absented himself at the crucial time in a search for cigarettes. I assume the Crown case will be that the admission of Mr Paton that he was present is correct, but the assertion that Ms T was present is incorrect, as is the proposition that he had fortuitously absented himself and missed all of the fatal violence.

1. Senior counsel for Mr Paton informed me that the evidence of Ms Schwind will be the subject of firm dispute. Again, that evidence is led only against Mr Paton.

1. Later, Mr Kearnes and Mr Paton were found to be travelling together in a car towards Sydney. That is consistent with the evidence of Ms T that, after the shooting, they decided to leave Tumut and head north.

1. Each accused engaged in an interview with police in which he professed his innocence and claimed not to have been in Wagga Wagga that evening. In the case of Mr Kearnes, the Crown will seek to submit that that was a lie, told as a result of consciousness of guilt on the part of Mr Kearnes. Again, if permitted to make that submission, the Crown has made it clear that it would only be part of its case against Mr Kearnes.

Basis of application

1. The submissions in support of the order sought are simple. It is submitted that the evidence of Ms Schwind against Mr Paton will be an important part of the case against him. It is one thing, it is said, for a prison informer to give evidence against a fellow prisoner. It is quite another for a close relative who has known an individual since the day he was born to implicate him in a murder. Counsel for Mr Kearnes submits that the evidence, whilst by no means the only evidence against Mr Paton, will assume a significant role in the Crown case against him, and he submits that it will be an important part of the deliberations of the jury with regard to Mr Paton, especially in light of the fact that it will be the subject of dispute. Counsel for Mr Kearnes also submits that the evidence of Ms Schwind may well be dramatic and have attached to it human interest, in light of the relationship between the witness and Mr Paton, and that could add to the impression it makes upon the jury.

1. And yet, he submits, there is no doubt that by way of what he is alleged to have said to his aunt, Mr Paton was directly inculpating Mr Kearnes in the shooting. Indeed, what Mr Paton allegedly said to his aunt could be said to be largely exculpatory of Mr Paton. And yet, counsel submits, the jury will be expected to put out of its minds completely the evidence of Ms Schwind about what Mr Paton said about Mr Kearnes when it comes to consider the Crown case against Mr Kearnes.

1. In other words, counsel for Mr Kearnes submits that, during their deliberations, the jury will be called upon to examine closely what was said by Mr Paton in considering the Crown case against Mr Paton, but disregard entirely what was allegedly said by Mr Paton when considering the case against Mr Kearnes. In fact, he submits, that it is an impossible expectation of mental gymnastics to be undertaken on the part of the jury.

1. He also submits that, when one considers the strength of the Crown case against each accused, and accepting that the bulk of the evidence will be admissible against each man, including most of the evidence establishing the presence of the other man, nevertheless it can be said that the evidence against Mr Kearnes is substantially weaker than the evidence against Mr Paton.

1. In short he submits that the well-established test in R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported) has been made out, and, even despite the extra time, trouble and expense involved, there should be two trials.

1. The Crown Prosecutor accepted that the evidence of Ms Schwind would not be admissible against Mr Kearnes, and that there would need to be firm and repeated directions to that effect. However, he emphasised that our criminal justice system operates on the general assumption that juries obey directions of trial judges. He also submitted that the balance of convenience is overwhelmingly in favour of there being a joint trial, in that many witnesses would have to give evidence twice, and perhaps two to three weeks of extra court time would be needed to accommodate two trials as opposed to one. Finally, he suggested that, even at this stage, there is perhaps a developing flavour of a cutthroat defence (at the least on the part of Mr Paton), and that is a factor that militates in favour of a joint trial.

1. As I have said, senior counsel for Mr Paton has adopted a neutral position.

Legal principles

1. The following propositions can be derived from the authorities.

1. The general rule is that crimes alleged to have been committed jointly should be prosecuted in a joint trial: see R v Beavan (1952) 69 WN NSW 140, Assim v The Queen [1966] 2 QB 249, Webb v The Queen; Hay v The Queen [1983] HCA 30; (1994) 181 CLR 41.

1. However, the exception to that rule is if there is a real risk of positive injustice in the conduct of a joint trial: see Guimond v The Queen (1979) 44 CCC 481, R v Darby [1982] HCA 32; (1982) 148 CLR 668 and Gulder v The Queen (1986) 8 NSWLR 12.

1. In a case such as this, where there is an alleged admission directly admissible against one accused but completely inadmissible as hearsay evidence against another accused, it has been said that that question can be resolved by considering three questions: see R v Middis, approved in R v Baartman (Court of Criminal Appeal of New South Wales, Gleeson CJ, Powell JA and Smart J, 6 October 1994, unreported).

1. First, is the evidence against the applicant for a separate trial significantly weaker and different to the evidence admissible against the other accused?

1. Secondly, does the evidence against the other accused contain material highly prejudicial to the applicant although not admissible against him?

1. Thirdly, is there a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material?

1. It has been said that if those three aspects are made out, a separate trial will usually be ordered.

1. It has been said more recently that the question of comparison of the relative weaknesses and strengths of the cases against each accused should not be regarded as an overly determinative factor: see R v Pham [2004] NSWCCA 190 and R v Lu; R v Pham [2007] NSWSC 1141.

1. It has also been said that, in this context, "immeasurably" does not mean enormously, but rather in a way that cannot be quantified with precision: see R v Pham.

1. The cases establish that questions of cost and convenience are not irrelevant: see R v Oliver (1984) 57 ALR 543, R v Middis and R v Dellapatrona; R v Duffield (1993) 31 NSWLR 123.

1. It has also been said in the latter case that the question involves a degree of balancing of factors.

1. The cases have emphasised that the ordering of separate trials is not automatic simply because there will be some evidence led in a joint trial that is inadmissible against one accused: see Gulder v The Queen. If there is a cutthroat defence apparent, that is more supportive of there being a joint trial: see R v Ignjatic (1993) 68 A Crim R 333.

1. It is the case that the common law proceeds on the assumption that juries obey directions from trial judges. As McHugh J said in Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [31]:

"The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions."

A little later his Honour said in the same paragraph:

"Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials."

1. On the other hand, as Gleeson CJ and Gummow J said in the same case at [13]:

"The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice."

Determination

1. Applying the principles that I have reviewed and sought to summarise to the evidence as currently revealed at this early stage, I must say that the matter is finely balanced in my mind. The bulk of the evidence is admissible against both accused. It will undoubtedly be inconvenient, time-consuming, expensive, and to some degree oppressive to witnesses, not least Ms T, if they are called upon to give evidence twice.

1. It could also be said that the evidence of Ms Schwind about what Mr Paton is alleged to have said, whilst undoubtedly important, is not absolutely paramount in the Crown case against him.

1. On the other hand, there is force in the submission of counsel for Mr Kearnes that the testimony of Ms Schwind could well be, at least to some degree, dramatic, emotive, and impressive. As I understand it, it is the only evidence of an admission by Mr Paton, and it comes from a close relative. Perhaps it could also be said that it has the ring of truth (in the sense of it having been said by Mr Paton) in that it features a substantial degree of exculpation.

1. It is true that the direct evidence against Mr Kearnes includes the phone records, some evidence of motive, and a more direction connection with a Ford Territory. It is also true that the evidence of Mr J may well have its strength as well as its weaknesses.

1. But in light of the identification evidence pertaining to Mr Paton, the CCTV evidence with regard to him, and the evidence of the expert with regard to the palm print found in a location consistent with the evidence of one of the eye witnesses, and although I do not consider that the evidence against either man is particularly weak, on the material before me currently, I do consider that the Crown case against Mr Kearnes is weaker than the Crown case against Mr Paton.

1. Furthermore, with regard to juries obeying directions of trial judges, it is one thing to be comfortably satisfied that juries do indeed apply directions such as the need for proof beyond reasonable doubt, or the need to respect the right to silence of any citizen. It is quite another for a jury deliberating in a murder trial to compartmentalise the evidence of Ms Schwind to such a degree that they fully take it into account against Mr Paton, but disregard it entirely against Mr Kearnes. That is a task that professional judges would, I respectfully consider, find difficult to perform, let alone 12 citizens.

1. With regard to the balancing exercise, as I have said, two trials will be inconvenient to a very substantial degree. On the other hand, I do not think it inappropriate to take into account in that exercise the fact that the allegation against Mr Kearnes is an exceptionally serious example of an exceptionally serious offence. And the loss of two to three weeks of court time, whilst regrettable, can sometimes be necessary to ensure a fair trial of a count that carries a maximum penalty of life without parole.

1. Finally, with regard to a second trial, and indeed the first, I am confident that the involvement of very experienced counsel will permit there to be substantial and appropriate shortening of the evidence and the legal aspects of the trial.

1. In short, whilst I accept that the general rule is that an allegation of a joint crime should be made at a joint trial, and whilst I accept that two separate trials will be inconvenient in a number of different ways, I consider that there has been established that there is a real risk of a positive injustice being occasioned to Mr Kearnes if a joint trial were conducted. And I consider that the specific test enunciated in R v Middis has been made out.

1. As a result I make the following order:

(1)   The trials of Peter John Kearnes and Christopher John Paton for the murder of the deceased are to proceed separately.

1. I will proceed to hear submissions from the parties as to which trial should proceed first, and will then make a ruling with respect to that question. Thereafter, we shall immediately proceed to have a pre-trial mention and discussion of the first trial.

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Decision last updated: 05 November 2013