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 41Category: Interlocutory applications Parties: Regina
Peter John Kearnes
Christopher John PatonRepresentation: 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.…
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- Case
- [2013] NSWSC 1139
- Decision Date
CaseChat Overview and Summary
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.
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