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

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.

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.

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.…

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: [2013] NSWSC 1139
Decision Date: 09 August 2013

CaseChat Overview and Summary

In this case, the two accused, Kearnes and Paton, were jointly tried for charges of murder and conspiracy to commit murder. They applied for separate trials, citing potential positive injustice due to the nature of the evidence against them. The High Court of Australia heard the application and determined several legal issues. The primary concern was whether the evidence against Kearnes was weaker than that against Paton, and whether this weakness would be exacerbated by highly prejudicial evidence against him. Additionally, the court had to assess if the weaker case would be made immeasurably stronger by the prejudicial material. The court held that a positive injustice would arise if the weaker case was rendered significantly stronger by prejudicial evidence. This meant that the prejudicial material could not be effectively compartmentalised in a joint trial. Given that Kearnes' case was indeed weaker and that the prejudicial evidence against him could not be isolated, the court found that a positive injustice would result from a joint trial. Therefore, the application for separate trials was granted.

The reasoning of the court hinged on the principles of ensuring a fair trial for each accused. The court recognised that the admission of one co-accused could unfairly prejudice the other. The evidence against Paton was considered stronger, while Kearnes' case was more vulnerable. The court found that the prejudicial evidence against Kearnes could not be effectively compartmentalised and would likely influence the jury's assessment of his guilt. This would result in a trial that was not fair to Kearnes, establishing the positive injustice required for a separate trial. The court's decision underscored the importance of maintaining the integrity of the trial process and ensuring that each accused receives a fair evaluation of the evidence against them.

Orders