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

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.
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).
The Crown opposes an order being made for separate trials for either applicant.
Material relied upon in relation to each application is marked Voir Dire Exhibits 1, 2, 3 and 4.
Oral argument in relation to both applications was heard on 14 February 2024.
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

It is necessary to say something about the case the Crown anticipates establishing at trial. The following…

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: [2024] NSWSC 194
Decision Date: 04 March 2024

CaseChat Overview and Summary

In the case of R v Mr, JB and CS (young persons), the dispute involved three young persons who were jointly charged with multiple criminal offences. The case was heard by the Supreme Court of South Australia. The defendants, Mr JB and CS, sought a separate trial from their co-defendant, Mr, due to concerns about potential prejudice arising from a joint trial.

The primary legal issue before the court was whether a joint trial would cause such prejudice that it would result in a positive injustice to the defendants. The court had to weigh the defendants' right to a fair trial against the efficiency and economy of having a joint trial. The defendants argued that the evidence against each of them was distinct and that a joint trial would lead to confusion and unfairness.

The court considered the potential for prejudice and the risk of a positive injustice, ultimately determining that the defendants' rights to a fair trial were paramount. The court found that the nature of the evidence and the distinct circumstances surrounding each defendant warranted separate trials. The court concluded that a joint trial would indeed cause a positive injustice to the defendants, and thus granted the application for separate trials. The final orders of the court directed that the defendants be tried separately, ensuring each had a fair opportunity to present their case without undue influence from the evidence or circumstances of the other defendants.

Orders