R v Mr, JB and CS (young persons)

[2024] NSWSC 194

Supreme Court

New South Wales

Medium Neutral Citation:

R v MR, JB and CS (young persons) [2024] NSWSC 194

Hearing dates:

14 February 2024

Date of orders:

4 March 2024

Decision date:

04 March 2024

Jurisdiction:

Common Law

Before:

Huggett J

Decision:

(1)   The application by JB for a separate trial is refused.

(2)   The application by CS for a separate trial is refused.

(3) Three (3) additional jurors be empanelled in accordance with ss 19(2) and 19(3) of the Jury Act 1977 (NSW) and s 5 of the Jury Regulation 2022 (NSW).

Catchwords:

CRIMINAL LAW – procedure – joinder – joint or separate trials – whether prejudice caused by joint trial will cause positive injustice

Legislation Cited:

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Jury Act1977 (NSW)

Jury Regulation2022 (NSW)

Cases Cited:

Askarou v R [2023] NSWCCA 246

McNamara v The King [2023] HCA 35

Pham v R [2006] NSWCCA 3

R v Bushell; R v Tozer (No 6) [2021] NSWSC 750

R v Dirani (No 8) [2023] NSWSC 70).

R v Hawat (No 5) [2019] NSWSC 1727

R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep)

Webb & Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30

Category:

Procedural rulings

Parties:

Rex
MR
JB
CS

Representation:

Counsel:
E Balodis (Crown)
A Evers (MR)
S Talbert (JB)
C Wasley (CS)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Criminal Defence Lawyers Australia (MR)
Legal Aid Commission (JB)
Caulfield Solicitors (CS)

File Number(s):

2022/221664; 2022/00221698; 2022/00221444

Publication restriction:

Certain names and details have been anonymised to comply with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

Judgment restricted to the parties until the jury returns its verdicts.

JUDGMENT

1. MR, JB and CS are charged jointly with the murder of AS (“the deceased”). The Crown case is that on 4 June 2022 the deceased was fatally stabbed to the chest by MR while being pursued by MR, JB and CS following an altercation at a gathering.

2. By Notice of Motion dated 8 February 2024 JB makes application for an order that his trial be severed from the trial of MR and CS. By Notice of Motion dated 28 November 2023, CS makes application for an order that his trial be severed from the trial of MR and JB. Both applications are made pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW).

3. The Crown opposes an order being made for separate trials for either applicant.

4. Material relied upon in relation to each application is marked Voir Dire Exhibits 1, 2, 3 and 4.

5. Oral argument in relation to both applications was heard on 14 February 2024.

6. For reasons of no present relevance, the joint trial of the young persons previously listed for 26 February 2024 is listed to commence with a jury on 6 March 2024.

The Crown case

7. It is necessary to say something about the case the Crown anticipates establishing at trial. The following is drawn from the latest iteration of the Crown Case Statement (“CCS”) and the material tendered.

8. On 3 June 2022, TK (then aged 16) hosted a social gathering at her home at 18 [A] Drive, Ropes Crossing where she lived with her mother SK and younger siblings. Alcohol was being consumed.

9. The following young persons were in attendance:

1. BR (then aged 17) who was TK’s partner;

2. the deceased (then aged 16) who was TK’s friend and BR’s best friend;

3. AE (then aged 16 or 17) who was TK’s friend;

4. the young person MR (then aged 17) who was AE’s partner; and

5. the young persons JB (then aged 16) and CS (then aged 17) who were known to MR.

10. AE saw MR bring a knife to the gathering.

11. Adults at the gathering included TK’s mother SK, her mother’s partner JW and her mother’s friend MW.

12. By around 2:45am on 4 June 2022 the deceased, MR, JB, CS and AE were outside the front of the house. The deceased told MR he had been sexually touched by AE. AE denied she had done that.

13. MR and the deceased began to argue. MR was standing in front of and facing the deceased. JB and CS were standing with MR also facing the deceased.

14. People inside the house heard yelling. BR went to the front of the house.

15. MR punched the deceased to the face causing him to fall back against the front screen door.

16. MR was armed with a knife. JB was armed with at least one knife. CS was armed with a knife (at least before he handed it to JB who then had possession of two knives).

17. Three knives were located during a search of the area around 18 [A] Drive. As I understand the evidence, those knives are as follows:

1. A black handled knife described as a “long” knife located by police in a stormwater drain outside 32-34 [A] Drive (labelled Item 1).

2. A “hunting” knife was located lodged in a “creek bed” in the small bushy area that runs along the side of [A] Drive (labelled Item 22 at Marker 2). A knife sheath was found approximately one metre away.

3. DNA profiles including profiles matching MR, JB and the deceased were detected on this knife and the sheath.

4. The Crown’s case is that Item 22 did not belong to the deceased and that the profile matching his profile came to be on Item 22 because of transfer.

5. A “small black handled knife” from that same “bush” area (labelled Item 23 at Marker 3).

18. BR ran from the front of the house and proceeded left along [A] Drive. As he was doing that MR, JB and CS rushed towards the deceased who was still near the front door of the house. MR stabbed the deceased to the right side of his chest. The deceased ran along the front of the house and JB and CS chased him. The deceased got as far as the nature strip at or around 14 [A] Drive where he fell to the ground face down. JB and CS stomped on the deceased’s head and/or kicked him.

19. TK, SK, JW and MW heard shouting and came to the front of the house.

20. TK saw the deceased lying face down. MR, JB and CS were kicking him.

21. MR walked towards AE while JB and CS remained close to where the deceased lay. MR was holding the knife he had taken with him to the gathering. Blood was on the blade.

22. SK and JW ran to where the deceased was lying.

23. At some point BR looked back and saw the deceased on the ground and ran back to where he was lying.

24. SK, TK and BR rolled the deceased onto his back. He had a stab wound to his chest. His eyes were rolling back and he was gasping for air.

25. MR and JB ran into the bush area along the side of [A] Drive and exited on the other side of the bushes moving in a path that took them to Bishop Court.

26. CJ also ran into the bush area but returned to [A] Drive in response to AE calling his name. CS and AE left the area together.

The CCTV evidence

27. CCTV at residential premises at 2 Bishop Court recorded both video and audio of MR and JB. A transcript has been prepared by investigating police regarding what the prosecution allege can be heard. The transcript includes words purportedly said before and after the deceased was stabbed. The relevance of the CCTV evidence in the Crown’s case against JB and the accuracy of the transcript is the subject of considerable dispute between the Crown and JB. It is something to which I will return in due course.

28. The Crown case is that at around 2:50:52am MR is heard on the recording to say to JB, “Told ya cuz. I told ya I was gonna stab him. I got him good”.

29. MR does not challenge the admissibility of this evidence in the Crown case against him. Nor is it disputed that the person with MR at that time was JB.

30. At 2:53am MW rang Triple 0.

31. At around 3:01am paramedics arrived.

32. At 3:26am the deceased was pronounced dead. The cause of death was found to be a stab wound to his chest that caused injuries to the lungs and thoracic aorta. Other non-fatal injuries were observed to the deceased’s head and body.

33. MR, JB, CS and AE met up in the early hours of the morning at the home of MR’s aunt (KR). Also present were MR’s father, his uncle, his mother and KR. AE heard JB tell MR’s father that MR stabbed the deceased in the neck.

34. That evening MR told AE his aunt had gone to Ropes Crossing to get rid of his knife.

35. “At some stage a few weeks after the stabbing”, AE heard MR tell his mother that he stabbed the deceased. AE was not listening to the full conversation but also heard MR’s mother tell MR that he could not tell police the story he had told her and to “change his story” and tell police the deceased hit him first and it was self-defence and to say that he did not take a knife to the party and got it from TK’s house. (The Crown will seek to tender this evidence against MR).

36. During the weeks after the incident, AE accompanied KR when she did delivery work for Uber eats. On an occasion during a delivery to Ropes Crossing when driving past a “pond”, KR told AE she walked into a muddy section and stabbed MR’s knife into the ground so it would get washed away by the sewer.

Telephone Intercepts

37. By 20 July 2022 MR was aware police were looking for him.

38. At 5:54pm that day, a telephone conversation occurred between MR and his mother. They discussed who had been speaking to police about the incident. MR’s mother told MR to tell his lawyer it was self-defence and it was “me or him” and further instructed him “[y]ou don’t tell the coppers that”. MR’s mother also said, “[m]ake sure when you finally go in there, you tell them self-defence. You seen him with something and he is known to carry it”. When MR queried whether to tell police or his lawyer, MR’s mother said, “No you tell a lawyer. He is known to carry it, that thing ‘boom’, ‘boom’, and um yeah you were scared for your life. He wanted to fight, you didn’t want to, so you tried to leave. You know what to say. Everything we said before.” (Product 1065). The Crown contends this explanation for the death of the deceased came from MR’s mother and was embraced by MR but it was not a truthful explanation for the circumstances in which MR stabbed the deceased. (The Crown will seek to tender this evidence against MR).

39. On 21 July 2022 a media appeal was released by police seeking public assistance in relation to the killing of the deceased. It was broadcast on various TV channels and social media sites and included vision of the CCTV evidence.

40. That afternoon CS participated in telephone calls with persons including his sister and mother. Amongst other things, CS said he had seen the CCTV evidence and was not depicted but “if they look towards where I go, their [sic] probably might see something of me” (Product 778), and “[t]hey’ve got them two, not me” (Product 785). (The Crown will not seek to lead this evidence against CS provided he admits that he kicked the body of the deceased and was thus present at the scene of the stabbing. However, the Crown will seek to use this evidence as a prior inconsistent statement should CS give evidence and there be any inconsistency).

41. On 23 July 2022 CS participated in a telephone call with his mother (Product 1430). Amongst other things, CS said that JB “made a plan the other night” to say that the deceased hit MR first and that it was self-defence. CS then participated in a telephone call with his sister (Product 1575) in which CS said he was “just talking to mum” and then spoke about the news referring to “fuckin’ foot prints in the bush” and “[i]f the kid had a mark on his body … and then I have my shoe mark like on the side of my shoe, do you reckon they’ll do that … [b]ecause they said … the body got buried pretty quick and I don’t think they got anything on it”. (The Crown will not seek to lead this evidence against CS provided he admits that he kicked the body of the deceased and was thus present at the scene of the stabbing. However, the Crown will seek to use this evidence as a prior inconsistent statement should CS give evidence and there be any inconsistency).

Arrest and Listening Devices

42. On 28 July 2022 MR, JB and CS were arrested for murder.

43. On his arrest, CS said to police “Hey boss. I didn’t do anything. I was just there”. (The Crown will seek to tender this evidence against CS).

44. MR, JB and CS exercised their right to silence and elected not to participate in a recorded interview with police.

45. MR, JB and CS were placed into custody at Mount Druitt Police Station. Listening devices were in operation in the holding cells.

46. At 11:04am, MR and JB were together in a cell and the following conversation was recorded:

JB: I’m saying I saw him king hit you first brother.

MR: What?

JB: I’m saying I saw him king hit you first.

MR: Yeah.

JB: Then I saw him pull out the kitchen and that’s all I seen.

MR: That’s what happened anyway bra.

JB: Deadset, that’s what happened 100%.

(The Crown will seek to tender this evidence against MR).

Basis for liability

47. The Crown’s primary case is that the deceased was fatally stabbed by MR and that JB and CS were part of a joint criminal enterprise with MR and with each other to intentionally inflict grievous bodily harm to the deceased. Alternatively, that JB and CS were part of a joint criminal enterprise with MR and each other to wound the deceased and contemplated the possibility that grievous bodily harm would be intentionally inflicted. (It is unnecessary for present purposes to outline the alternate way the Crown foreshadowed it might present its case if MR was not proven by the Crown to be the person who stabbed the deceased given MR accepts he stabbed the deceased [his case being that he had a lawful excuse of self-defence]).

48. It is the Crown case that JB and CS physically participated in the joint criminal enterprise by their presence at the front of TK’s home when MR first assaulted the deceased and by joining the chase of the deceased and kicking him when he was lying on the ground having been stabbed and struggling to breathe.

Defence case

49. Defence responses have been filed on behalf of each young person.

50. MR does not dispute that he stabbed the deceased thereby causing his death. MR contends he was acting in self-defence.

51. The significant fact in issue in relation to the Crown’s case against MR is whether the Crown can prove beyond reasonable doubt that at the time MR stabbed the deceased, he was not acting in self-defence.

52. JB and CS do not dispute being present when the deceased was stabbed. Each contends he was not part of a joint criminal enterprise to wound the deceased (nor did he foresee the possibility that grievous bodily harm would be intentionally inflicted by MR) and disputes participation in any such enterprise. Each disputes possessing or using a knife. CS does not dispute that he chased the deceased to where he fell and kicked him (twice it is contended) to the body after the deceased fell to the ground.

53. The significant fact in issue in relation to the Crown’s separate cases against JB and CS is whether the Crown can prove beyond reasonable doubt the existence of a joint criminal enterprise at the time MR stabbed the deceased and their respective participation in that enterprise.

Separate trial applications

54. Against that background, I turn now to each application for a separate trial.

55. The principles to be applied when considering an application for a separate trial are well settled and are not in dispute.

56. The onus is on the applicant for a separate trial to establish the grounds for granting the order.

57. Where the Crown case is that two or more accused persons were parties to a joint enterprise as is the case here, the starting point is that they should be tried jointly (Webb & Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30). This has particular application where two or more accused persons charged with the same offence attempt to place blame on each other (commonly called a cut-throat defence).

58. The present circumstances do not neatly fit the description of a cut-throat defence. MR accepts he stabbed the deceased but contends he did so in self-defence. JB and CS do not dispute being present at the time the deceased was stabbed by MR but each contends he was not party to any joint criminal enterprise nor did he participate in any such enterprise.

59. Although not determinative, public policy considerations favour a joint trial of accused persons charged jointly with committing an offence in order to avoid inconsistent verdicts being returned in separate trials. In the present circumstances, to a very large extent the same body of evidence would need to be called if separate trials were ordered. Accordingly, the efficient and economic use of court time and community resources in the administration of justice and avoiding inconvenience to witnesses are factors favouring a joint trial.

60. In determining whether separate trials should be ordered, appropriate weight must be given to ensuring, as far as is possible, a fair trial for each accused person.

61. In R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep), the considerations relevant to whether an application for a separate trial should be granted were set out as follows:

1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that which is admissible against another or the other accused with whom the applicant is to be tried; and

2. where the evidence against the other or those other accused persons contains material which is highly prejudicial to the applicant seeking a separate trial, although not admissible against him/her; and

3. where there is a real risk that the weaker Crown case against the applicant seeking a separate trial will be made immeasurably stronger by reason of the prejudicial material,

a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him/her in a joint trial.

62. An accused person will be denied the right of a fair trial if it can fairly be said that there is a real risk a positive injustice will result from a joint trial.

63. The concept of positive injustice was interpreted in Pham v R [2006] NSWCCA 3 as requiring significant focus to be given to whether prejudicial evidence inadmissible against one accused in a joint trial might turn an acquittal into a conviction.

64. It is recognised that some prejudice to an accused person is almost inevitable in any joint trial, a factor which must be taken into account in striking the necessary balance.

65. Middis has been affirmed and applied in many subsequent cases, most recently in the High Court in McNamara v The King [2023] HCA 35. In McNamara, Gageler CJ, Gleeson and Jagot JJ stated at [42] (footnotes removed):

“Given that it is in the nature of a joint trial that evidence adverse to one or more co-accused can become known to the jury which would not be known to separate juries were separate trials of each co-accused to be conducted, the existence of some risk of forensic prejudice to an accused arising from the admission of such evidence is inherent in any joint trial and is not of itself inconsistent with the overall interests of justice supporting the conduct or continuation of the joint trial. Prejudice to a co-accused will not result in the ordering of a separate trial if it is amenable to nullification by judicial direction to the jury. Having regard to the strength of the reasons of principle and policy which ordinarily weigh in favour of a joint trial, however, even substantial prejudice to a co-accused of a kind not really amenable to nullification by judicial direction will not result in the ordering of a separate trial 'as a matter of course'. To justify the ordering of a separate trial, the particular prejudice to a co-accused must rather be shown to be such as would occasion "positive injustice". In a joint trial, as in any other trial, '[a] fair trial according to law does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused.'"

Separate trial applications

66. It was submitted on behalf of JB and CS respectively that each of circumstances identified by Hunt CJ at CL in Middis are present such that a real risk of a positive injustice to each applicant would arise if a separate trial was not ordered.

66. Integral to the submissions advanced on behalf of each applicant is the contention that the evidence admissible against each applicant is significantly weaker than and different to that admissible against his two co-accused, and that there is evidence admissible against one or both co-accused that is inadmissible and highly prejudicial to each applicant, and that there is a real risk a weaker Crown case against the respective applicant will be made immeasurably stronger by the jury hearing the inadmissible and prejudicial material led against one or both co-accused and where judicial directions cannot nullify the prejudice and the danger of such evidence being misused.

67. At this point I should add that since both applications were made, the Crown has refined the evidence it intends to lead against each accused. Consequently, some of the purportedly highly prejudicial but inadmissible evidence against a particular applicant is no longer being led. The submissions in support of each severance application need to be read in that light.

68. Where an application for separate trials is made before trial, whether a potential acquittal is converted to a conviction by the presence of prejudicial and inadmissible material is necessarily predictive. The issue raised in each application is whether I can predict with reasonable confidence the way a joint trial is likely to be conducted and whether there is a real risk a potential acquittal might be turned into a conviction thereby causing a positive injustice to each applicant accused if his trial is not separated.

The separate trial application of JB

70. It is submitted on behalf of JB that in addition to the CCTV evidence, the following evidence is highly prejudicial but inadmissible against JB:

1. The telephone intercepts to which JB was not a participant. In particular:

1. Product 1065 relied upon by the Crown in its case against MR only. I do not consider this evidence to be highly prejudicial to JB.

2. The part of Product 1430 where CS tells his mother that JB “made a plan the other night” to say it was the deceased who first hit MR and that MR acted in self-defence which the Crown does not seek to elicit (unless a prior inconsistent statement on the part of CS arises in which case it would be admitted against CS only).

2. The listening device evidence described at [46]. In particular, where JB tells MR he will be “saying” he saw the deceased “king hit you first” and “then I saw him pull out the kitchen” and “that’s all I seen” to which MR says, “that’s what happened anyway” which the Crown seeks to use only against MR.

71. Ms Talbert submits that this evidence of itself and/or in conjunction with the CCTV evidence causes significant prejudice to JB because of the danger it might be used impermissibly by the jury to infer against a consciousness of guilt on his part because of his apparent participation in the construction of a false narrative such that the jury might convict JB because of evidence that does not form part of the Crown case against him.

72. The CCTV evidence is not evidence that suggests the involvement of JB in the construction of a false narrative.

73. I accept that if CS’s representation to his mother that JB was involved in the concoction of a false narrative is led against CS (Product 1430) and acknowledging that the recorded exchange between JB and MR in the holding cell will be led against MR, such evidence does carry some risk of prejudice to JB in circumstances where that evidence would not be admitted against him. However, the overwhelming flavour of that evidence suggests that JB was seeking to assist MR by giving a version of events favourable to MR. The Crown is not relying on this evidence as consciousness of any guilt on the part of JB and this evidence says little if anything as to whether the Crown is able to prove JB’s criminal liability. That is, whether the Crown can prove beyond reasonable doubt that JB was party to the joint criminal enterprise alleged and whether he participated in that enterprise. I am satisfied that the prejudicial effect of this evidence on JB is able to be nullified by directions.

74. In so far as Ms Talbert submits there is a real risk that a weaker Crown case against JB will be made immeasurably stronger by reason of this inadmissible evidence in conjunction with the CCTV evidence, I do not agree. The evidence available in the Crown case against JB is reasonably strong. It includes evidence that JB was armed with at least one knife immediately before the deceased was stabbed, that JB was with MR when MR punched the deceased and stabbed the deceased, that JB ran after the deceased and kicked and/or stomped him when he was laying on the ground and that a DNA profile matching JB’s profile was located on a knife located by police.

75. It is true that the evidence in the Crown’s case against JB is in some respects different to that in its case against MR in particular. Those differences arise out of, and reflect, JB’s different role in the alleged joint criminal enterprise. While it can be accepted that the role MR played in the death of the deceased is prima facie greater than that of JB’s role, I am not of the view this is a case where the evidence against JB is significantly weaker than, and different from, the evidence admissible against MR.

76. I am not satisfied there is a real risk a purportedly weaker Crown case against JB will be made immeasurably stronger by reason of prejudicial and inadmissible material.

77. The application by JB for a separate trial is refused.

The separate trial application of CS

78. It is submitted on behalf of CS that the evidence to be led by the Crown in its case against him is significantly weaker and different to that to be led against MR and/or JB.

79. Ms Wasley points to the evidence inadmissible against CS which she submits is highly prejudicial to him in circumstances where the Crown case is that CS was part of a criminal enterprise with MR and JB and was present with them before, during and immediately after the stabbing and was involved in kicking the deceased while he lay dying on the ground. That evidence includes:

1. The CCTV evidence.

2. The telephone intercepts and listening device recordings to which CS was not a participant.

3. The absence of prior animosity between CS and the deceased (and thus it is contended the absence of any motive).

4. The purportedly weak evidence that CS was armed with a knife and the absence of any forensic link between CS and knives located by investigating police.

80. As I understand it, the crux of Ms Wasley’s submissions is that the evidence sought to be admitted against MR and/or JB is highly prejudicial to CS because CS was with them before, during and after the deceased was stabbed and the jury might use evidence admissible against MR and/or JB against CS in a way akin to guilt by association. Ms Wasley further submits there to be a real risk a weaker Crown case (purportedly against CS) will be made immeasurably stronger by reason of prejudicial but inadmissible material, particularly the CCTV evidence.

81. The CCTV evidence does not involve CS nor is it prejudicial to him. If anything, it is exculpatory of CS because MR is representing that he told “ya”, that is, told JB he was going to stab the deceased.

82. It can be accepted that the evidence in the Crown’s case against CS differs in some respects to its separate cases against MR and JB. Furthermore, it can be accepted that the Crown case against CS is not as strong as that against MR and/or JB. However, I am not of the view it can properly be said that the evidence admissible against CS in relation to the existence of the joint criminal enterprise and his role and participation in it is weak. The case against CS consists of direct evidence as to what CS allegedly did including that he was armed with a knife immediately before the deceased was stabbed (notwithstanding that AE saw it being handed to JB), he was with MR when MR punched the deceased and stabbed the deceased and he ran after the deceased and kicked and/or stomped him when he was laying on the ground.

83. If the evidence led against CS is accepted by the jury, it could be found that his actions were in furtherance of the joint criminal enterprise alleged. As with JB, the differences in the evidence to be led against CS arise out of, and reflect, his different role in the alleged joint criminal enterprise.

84. While the evidence against CS is somewhat weaker than that admissible against MR and/or JB, I do not agree it is significantly weaker than and different to the evidence admissible against his co-accused notwithstanding the absence of forensic evidence linking CS to any knife located at the scene and the absence of apparent evidence as to animosity before the stabbing.

85. The application by CS for a separate trial is refused.

86. In refusing each application for a separate trial, I appreciate it is submitted on behalf of both JB and CS that each is entitled to raise in his favour his good character [1] . That does not appear to be the position in relation to MR and thus would appear to be a prejudice suffered by MR but not JB and/or CS. This issue arises from time to time in a joint trial and directions are routinely given to ensure that no prejudice flows to the party not entitled to such a direction. It is a necessary component of a joint trial that the jury be directed that separate consideration must be given to the case against each accused and to the different evidence available for their consideration in relation to each accused.

    1. I note that since JB’s application for a separate trial was heard, I have been informed there is disagreement between the Crown and JB as to whether JB is entitled to a good character direction. That is something yet to be determined but for the purposes of determining JB’s separate trial application, I have accepted he is entitled to such a direction.

87. It was accepted by all parties if the severance applications were refused, the Court would find that the preconditions imposed by subss 19(2) and (3) of the Jury Act1977 (NSW) in conjunction with s 5 of the Jury Regulation2022 (NSW) have been met (which is the case), an order would be made that three (3) additional jurors be empanelled.

The admissibility of the CCTV evidence in the Crown’s case against JB

88. I turn now to the question of the admissibility of the CCTV evidence in the Crown’s case against JB.

89. As I have indicated, there is considerable dispute between the Crown and JB regarding what can be heard on the recording of the CCTV evidence, particularly around the time MR makes the representation referred to as [28].

90. Ms Talbert contends in her written submissions that various parts of the audio of the CCTV evidence recording are inaudible or difficult to decipher.

91. Apart from the representation attributed to MR, the Crown contends that other words can be heard on the recording and based upon that, investigating police prepared a transcript of the audio.

92. As was ventilated during the argument of this matter, having listened to the recording of the CCTV evidence in court once fully (as I recall) and the portion where MR and JB were in the vicinity of 2 Bishop Court several times without and with hearing loops, I clearly heard MR say “I told ya cuz. I told ya I was going to [or gonna] stab him. I got him” followed by one or more indecipherable words and then the words “in the neck”. To my ear, the quality of the recording then reduced, likely because MR and JB were moving and travelling away from the recording equipment. There were then some other words my ears were unable to discern using the equipment available to me.

93. The Crown contends that Voir Dire Exhibit 1 is capable of establishing that JB responded to MR’s representation with words acknowledging that MR "got" the deceased in the neck. Notwithstanding the fact the fatal stab wound was to the deceased’s right anterior chest wall perforating the skin in the area between ribs 2 and 3, JB’s reply if able to be heard and accepted by the jury would be important evidence in the Crown case against JB. That said, I appreciate that the Crown submits there is a basis to admit MR’s representation against JB (pursuant to s 65(2)(b) regardless of whether it can or cannot be discerned what words follow thereafter.

94. The two applications presently before me are for separate trials. JB in particular submits that the admissibility of the CCTV evidence in the Crown’s case against him must be determined before his severance application can be determined. I do not agree it is necessary to definitively decide this issue in order to determine JB’s separate trial application (or indeed the application made by CS). That is because I would not order that JB’s trial be separated even if I come to determine that the CCTV evidence is not admissible against JB (nor would I order the separation of CS’ trial on the basis of the CCTV evidence).

95. If I ultimately come to determine that the CCTV evidence is not to be admitted against JB, I do not consider it standing alone or in conjunction with the other evidence relied upon by Ms Talbert for a separate trial, is such that a separate trial should be ordered. Any prejudice to JB arising from such evidence or danger it might be misused by the jury against JB, for example, as evidence suggesting there had been some prior conversation between MR and JB about an intention to stab the deceased, can be nullified by directions. Expressed differently, if the CCTV evidence comes to be admitted against MR only, I am not of the view that would create a real risk of a positive injustice to JB.

96. In circumstances where I am unable to hear words purportedly said but where it is contended words can be discerned and where the evidence is of some importance, I am not prepared to determine the question of the admissibility of the CCTV evidence against JB at this stage. Should the Crown seek to reagitate the issue and place further evidence before me regarding the process police undertook that enabled them to hear the words captured on the CCTV recording and in turn to prepare a transcript (including whether any equipment was used), then the issue can be properly determined.

97. If no further evidence is placed before me, without deciding the issue of the admissibility of the evidence against JB (which amongst other things will require a consideration of ss 65 and 137 of the Evidence Act 1995 (NSW), it seems to me the Court is left with at least the following options:

1. The CCTV evidence be played in its entirety and it would be up to the jury to determine what was said and by whom.

In this scenario the jury would listen to the CCTV evidence and determine for themselves what they make of the evidence, but the parties would not be entitled to make submissions (or provide a transcript) until that had occurred.

One potential problem with this approach might be that of priming and/or suggestibility (see for example, R v Hawat (No 5) [2019] NSWSC 1727; R v Bushell; R v Tozer (No 6) [2021] NSWSC 750; R v Dirani (No 8) [2023] NSWSC 70).

Another potential problem with this approach is that adverted to by Beech-Jones J (as his Honour then was) in Askarou v R [2023] NSWCCA 246. There it was held that the trial miscarried because evidence which was audible but not transcribed resulted in the trial being conducted as though the evidence had not been adduced. By analogy to the present circumstances, if the CCTV evidence is simply played and nothing is said (by way of submissions or transcript) as to what can or cannot be heard (so as to avoid the possibility of priming and/or suggestibility), and jurors are able to hear words spoken after MR’s representation, the parties would not know precisely what evidence the jury was acting upon and would not be in a position to make submissions about that evidence.

2. The CCTV evidence be played up to the end of MR’s representation (primarily because s 55 requires that evidence be relevant to be admissible and evidence will not be relevant if it is incapable of being heard) and the jury directed that the sound quality thereafter is so poor such that nothing further is decipherable and they must not speculate.

98. Accordingly, I decline to make any finding regarding the admissibility of the CCTV evidence against JB (or regarding the use of any transcript) at this stage for the reasons provided.

Formal Orders

99. The formal orders are:

1. The application by JB for a separate trial is refused.

2. The application by CS for a separate trial is refused.

3. Three (3) additional jurors be empanelled in accordance with ss 19(2) and 19(3) of the Jury Act1977 (NSW) and s 5 of the Jury Regulation2022 (NSW).

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Endnote

Decision last updated: 09 April 2024