R v Spiteri-Ahern; R v Barber; R v Zraika

[2017] NSWSC 1275

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Spiteri-Ahern; R v Barber; R v Zraika [2017] NSWSC 1275

Hearing dates:

2, 7 June 2017

Date of orders:

07 June 2017

Decision date:

07 June 2017

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Application under s 132(1) of the Criminal Procedure Act 1986 granted;
(2)   Trial to be conducted by Judge alone;
(3)   Application for separation of the trials of each accused refused.

Catchwords:

CRIMINAL PROCEDURE – application for separate trials – application for judge alone trial – if judge alone, no need for separate trials – not in interests of witness or justice for separate trials – intertwining of evidence – evidence admissible only against some accused but its content of extremely high probative value – unlikely directions overcome unfair prejudice – reasonable apprehension of unfairness to accused – principles for application – in interests of justice for judge alone trial – orders made.

Legislation Cited:

Criminal Procedure Act 1986, Ss 131, 132, 132A
Supreme Court Rules 1970, Part 75, Rule 3H

Cases Cited:

Arthurs v The State of Western Australia [2007] WASC 182
Barber v R; Zraika v R [2016] NSWCCA 125
Demirok v The Queen (1977) 137 CLR 20; (1977) HCA 21
R v Adams (No 2) [2016] NSWSC 1359
R v Belghar [2012] NSWCCA 86
R v Colin Maxwell Farrow [2014 NSWSC 1781
R v Dean [2013] NSWSC 661
R v Gittany [2013] NSWSC 1503
R v Simmons; R v Moore (No 4) [2015] NSWSC 259
R v Stanley [2013] NSWCCA 124
The Queen v Glennon (1992) 193 CLR 592; [1992] HCA 16

Category:

Procedural and other rulings

Parties:

2014/00180060:
Regina (Crown)
Louise Catherine SPITERI-AHERN (Accused)

 

2014/00180279:
Regina (Crown)
April BARBER (Accused)

  2014/00235123:
Regina (Crown)
Amin ZRAIKA (Accused)

Representation:

Counsel:
2014/00180060:
D Patch (Crown)
J Trevallion (Accused)

 

2014/00180279:
D Patch (Crown)
A Francis (Accused)

 

2014/00235123:
D Patch (Crown)
P Kulisiewicz – Solicitor (Accused)

 

Solicitors:
2014/00180060:
Office of the Director Public Prosecutions (Crown)
Archbold Legal Solutions (Accused)

 

2014/00180279:
Office of the Director Public Prosecutions (Crown)
Bannisters Lawyers (Accused)

  2014/00235123:
Office of the Director Public Prosecutions (Crown)
Macquarie Lawyers Burwood (Accused)

File Number(s):

2014/00180060; 2014/00180279; 2014/00235123

Judgment

1. HIS HONOUR: By Motion on notice, filed 29 May 2017, the accused April Barber (“Ms Barber”) sought orders pursuant to s 132 of the Criminal Procedure Act1986 (“the Act”) that the current trial proceed as a judge alone trial (“the Motion”). This Motion was formally in the alternative to the original Motion, which sought that the trial of Ms Barber proceed separately to the trials of Louise Catherine Spiteri-Ahern (“Ms Spiteri-Ahern”) and Amin Zraika (“Mr Zraika”). The co-accused, Ms Spiteri-Ahern and Mr Zraika, joined each of the applications. The Crown opposed the applications.

2. The hearing of the Motion was on 2 June 2017 and orders were made on 7 June 2017 on which occasion the Court reserved its reasons. These are the reasons.

3. It should be noted that the Motion filed also sought rulings on admissibility in relation to various pieces of evidence. The Court did not make orders in relation to this aspect of the Motion and this will not be addressed in these reasons for judgment.

4. Each accused made an election under s 132(1) of the Act and as prescribed by Part 75, Rule 3H of the Supreme Court Rules1970, to be tried by judge alone in relation to their respective charges: Exhibit 1, Mr Zraika; Exhibit 2, Ms Barber; Exhibit 3, Ms Spiteri-Ahern.

5. The current trial is not the first trial upon which the three accused will have been tried for the offences with which they are charged. It is, therefore, important to provide some background to the current application.

Background

6. It is alleged in the Crown case that the deceased, Raymond Pasnin (“Mr Pasnin”), was shot and killed by Daniel Haile (“Mr Haile”), at or around 11.55pm on 30 October 2013, outside his mother’s premises in Pendle Hill. Mr Pasnin was shot and killed by a single bullet which penetrated the aorta.

7. Mr Haile was charged with (and later convicted of) the murder of Mr Pasnin. Ms Spiteri-Ahern is also charged with murder, as part of a joint criminal enterprise with Mr Haile.

8. Ms Barber is charged with accessory before the fact and to have counselled, procured and aided Ms Spiteri-Ahern and Mr Haile to commit the murder. Mr Zraika is charged with concealing a serious indictable offence, namely the alleged offence of Ms Barber.

9. The first trial of Mr Haile, Ms Spiteri-Ahern, Ms Barber and Mr Zraika was a jury trial heard by RS Hulme AJ and a jury, commencing 22 February 2016. On 20 May 2016, for reasons, which are, at this point, unclear, the jury retired to consider the verdicts of Mr Haile and Ms Spiteri-Ahern, with the summing up in relation to Ms Barber and Mr Zraika yet to occur.

10. On 6 June 2016, Mr Haile was found guilty of the murder of Mr Pasnin. The jury continued deliberations in relation to Ms Spiteri-Ahern.

11. On 9 June 2016, the jury sent a note to RS Hulme AJ indicating that they were unable to reach a unanimous verdict in relation to Ms Spiteri-Ahern. In circumstances where three jurors had previously been discharged, RS Hulme AJ discharged the jury.

12. An application was made on behalf of Ms Barber for a stay of proceedings pending an appeal to the Court of Criminal Appeal on the decision to discharge the jury. RS Hulme AJ rejected this application.

13. On 10 June 2016, the Court of Criminal Appeal granted a stay of the decision of RS Hulme AJ to discharge the jury. The jury, however, had already dispersed. In the substantive appeal, Ms Barber and Mr Zraika each claimed that they had lost their opportunity of an acquittal. On 14 June 2016, the Court of Criminal Appeal, dismissed the appeal: Barber v R; Zraika v R [2016] NSWCCA 125.

14. On 23 September 2016, an application was made by Ms Barber and Mr Zraika to stay the proceedings permanently. The stay application was heard by Fagan J. On 30 September 2016, the Court issued orders dismissing the application.

Summary of the Crown case against Ms Spiteri-Ahern

15. The Crown alleges that Ms Spiteri-Ahern, a former partner of Mr Pasnin, was motivated by passion and vengeance, forming a hatred for the deceased, which led to her alleged agreement to pay Mr Haile to kill Mr Pasnin. Ms Spiteri-Ahern and Mr Pasnin are alleged to have had a violent relationship as a result of which Mr Pasnin had spent time in gaol, bail refused.

16. Mr Pasnin had supposedly warned his girlfriend at the time, Lyndal Archbold (“Ms Archbold”), that Ms Spiteri-Ahern was “crazy” and that it was not safe for him to be seen at his residence with another woman.

17. The Crown case against Ms Spiteri-Ahern relies on, amongst other evidence, call charge records directly or indirectly between her and Mr Haile on the night of the shooting. The phone records allegedly demonstrate the Crown case that Mr Haile telephoned Ms Spiteri-Ahern, when he had seen who he had thought was Mr Pasnin at the residence on the night of the shooting, to confirm his identity.

18. It is an element of the offence with which Ms Spiteri-Ahern is charged that Mr Haile committed the murder. Part of the evidence upon which the Crown relies is a conversation, after the murder, between Mr Haile and a third person. The conversation refers to Ms Spiteri-Ahern’s role, but, it is said, is not admissible to prove her role.

Summary of the Crown case against Ms Barber

19. Ms Barber, also a former partner of Mr Pasnin, ended their relationship in or around November 2011, when she found out that Mr Pasnin was having an affair with Ms Spiteri-Ahern.

20. The Crown alleges that Ms Spiteri-Ahern and Ms Barber were involved in drugs together and that a meeting, which occurred between the pair on the night of the shooting, was not solely for the supply of drugs, but was also for the purpose of the exchange of information. The Crown alleges that Ms Barber provided information to Ms Spiteri-Ahern, which was passed on to Mr Haile. The Crown also relies on call charge records between Ms Barber and Ms Spiteri-Ahern on the night of the shooting, to allege that Ms Barber ensured that the deceased would be in a certain location at a certain time and that the details of this location were communicated to Ms Spiteri-Ahern.

21. Further to the above evidence, the Crown relies on evidence obtained from a listening device which was installed into the premises of Ms Barber and the accused Mr Zraika. Ms Barber and Mr Zraika were partners at the time of the shooting.

22. The Crown relies on alleged admissions made by Ms Barber in conversations with Mr Zraika about the police investigation of the murder. There were questions surrounding the admissibility of the alleged admissions made during the course of the conversations. Further, an element of the offence with which Ms Barber is charged is the guilt of Ms Spiteri-Ahern and Ms Barber’s knowledge of the intent of Ms Spiteri-Ahern.

Summary of the Crown case against Mr Zraika

23. Mr Zraika is alleged to have had relevant information relating to Ms Barber’s involvement in the shooting. The Crown relies on evidence from conversations captured by the listening device and telephone intercepts between himself and Ms Barber, which allegedly demonstrate Mr Zraika’s knowledge of Ms Barber’s involvement.

24. Mr Zraika made a statement to the police on 8 January 2014, which did not mention Ms Barber’s involvement. Similarly, in proving the guilt of Mr Zraika, it is necessary for the Crown to prove the guilt of Ms Barber.

Principles to be applied

25. The application is made pursuant to s 132 of the Act. The legislation is relevantly as follows:

“131    Trial by jury in criminal proceedings:

Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part.

132    Orders for trial by Judge alone:

(1)    An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a "trial by judge order").

(2)    The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.

(3)    If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.

(4)    If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.

(5)    Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

(6)    The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

(7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that:

(a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and

(b)    the risk of those acts occurring may not reasonably be mitigated by other means.

132A   Applications for trial by judge alone in criminal proceedings:

(1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court.

(2)    An application must not be made in a joint trial unless:

(a)    all other accused person apply to be tried by a Judge alone, and

(b)    each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial.

(3) An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person’s trial, subsequently apply for a trial by a jury.

(4) Rules of court may be made with respect to applications under section 132 or this section.”

26. The application in this matter was filed before the 28 day limitation and consequently no question of leave arose: s 132A(1) of the Act. The overarching consideration for the Court, therefore, is whether it is in the interests of justice for the trial to be heard by a judge alone.

27. A number of judgments to which the Court was referred consider the principles in s 132 of the Act. The first by the Court of Criminal Appeal was R v Belghar [2012] NSWCCA 86. The leading judgment of McClellan CJ at CL (as his Honour then was) is informative on this point and outlines the criteria which the Court considers in determining whether it would be in the interests of justice.

28. The Court of Criminal Appeal noted the importance that the starting position should not be a presumption in favour of a trial by jury. Such a presumption, according to his Honour, would require an accused applicant to rebut it. There is, however, an evidentiary burden on the applicant: Belghar, supra, at [96].

29. The foregoing statement has been referred to, subsequently, as a ‘binding statement of principle’ by McCallum J in R v Gittany [2013] NSWSC 1503 at [8]; R v Stanley [2013] NSWCCA 124 at [42] per Barr J with Macfarlan JA and Campbell J agreeing; R v Dean [2013] NSWSC 661 at [52] per Latham J).

30. The Court also must consider whether the circumstances of the case lend themselves to those in which issues of community standards will be considered, as provided in s 132(5) of the Act. The Court may refuse to make an order if it considers that the trial will involve factual circumstances requiring the application of objective community standards, including reasonableness, negligence, indecency, obscenity or dangerousness: see R v Colin Maxwell Farrow [2014] NSWSC 1781 at [26] - [27]; Belghar, supra at [94]). McClellan CJ at CL went on to comment:

“… where … the trial will not require the application of community standards to resolve any issue, the factors favouring a jury trial are diminished at least by the absence of that factor.” (Belghar, supra at [100].)

31. On the issue of whether the question of intention raises the need for the resolution of issues of community standards, as initially submitted by the Crown, the Court was taken to the judgments of Hamill J in R v Simmons; R v Moore (No 4) [2015] NSWSC 259, with which Button J agreed in R v Adams (No 2) [2016] NSWSC 1359. Hamill J in R v Simmons; R v Moore (No 4) at [65], supra, concluded that intention does not call for the application of community standards, and that:

“… if the Parliament was of the view that the issue of intention was one that involved the application of community standards, it would have been very easy to include that issue within the non-exhaustive list of matters identified in sub-s 132(5).”

32. Further, if “intention” were the kind of community standard to which the legislation referred, then, contrary to the view expressed in Belghar, there would be a presumption, as all serious criminal offences involve intention.

33. The advantages of a trial by jury were identified by Gleeson CJ, and later summarised by McClellan CJ at CL, in Belghar, supra at [97]:

“In Swain, as I have previously identified, Gleeson CJ identified what he referred to as the collateral advantages of trial by jury. Two interests are commonly identified. First, the community has an interest in ensuring that, where relevant to the issues to be tried, serious criminal matters are determined in accordance with current community standards. Subsection (5) expressly acknowledges this matter. Second, the community has an interest in ensuring that there is public confidence in the criminal justice system. The jury, as a means by which the public may participate in the processes of criminal justice, has been accepted as having a role to play in legitimating the operation of the criminal law, thereby enhancing public confidence in the administration of justice.”

34. A further issue to be taken into consideration is the notion that the accused is protected by a jury trial. McClellan CJ at CL determined, at [99] of Belghar, supra, that where an accused makes an application for a judge alone trial in accordance with s 132 of the Act and it is clear that the accused has had proper legal advice, this protection is not required by the accused. This must be a relevant factor to consider: see Arthurs v The State of Western Australia [2007] WASC 182 at [79].

35. In the matter now before the Court, in which all co-accused have elected for a judge alone trial, this has been taken into consideration on the making of the decision to order a trial by judge alone.

36. However, the Court, in Belghar, expressed the view that the mere fact that an accused, or co-accused in this case, elects or desires to have a judge alone trial, although relevant, is not as significant as the reasons for that preference. Ultimately, whether those reasons are rationally justified and whether the accused will receive a fair trial are far more important: Belghar, supra, at [102].

37. As McCallum J expressed in Gittany, supra, the comparative length of the trial in terms of the difference between the estimate for a jury trial and that of a judge alone may be relevant in determining an application of this kind. Her Honour made reference to the reasons of McClellan CJ at CL in Belghar, supra at [110]. The circumstances in Gittany were such that the length of the trial was of direct significance. This is not so in this trial and, as a consequence, does not play a substantial role in the Court’s consideration.

38. As was stated by McCallum J in Gittany, supra at [45], the fact that the threshold question of whether it is in the interests of justice to order a trial by judge alone is answered in the affirmative, merely enlivens the power of the judicial officer to make the orders sought under s 132. It is still within the power of the Judge to consider whether to exercise its discretion so to do.

Consideration

Submissions on behalf of Spiteri-Ahern

39. Counsel for Ms Spiteri-Ahern relied upon the Affidavit of Lisa Munro, instructing solicitor, sworn on 15 May 2017 and on written and oral submissions.

40. Counsel for Ms Spiteri-Ahern submitted that ‘she believes she is unable to get a fair trial simply because of the weight of the prejudicial material against her…’ (Transcript at 20) and that given the nature of the evidence within the case, there is an undeniable difficulty in the separation of the trials of each accused: Transcript, at 14.

41. The evidence that is relied upon as prejudicial, it is submitted, is divided into two categories. The first category is evidence contained within the recorded interview of Ms Spiteri-Ahern, listening device materials and intercepted telephone calls, from which it will be submitted that the Crown will rely on lies as evidence of a consciousness of guilt, and an implied admission. The second category relied upon is contained in conversations between Mr Zraika and Ms Barber recorded through listening device recordings, telephone calls and text messages. This category of evidence, it is submitted, also contains evidence of admissions and implied admissions: written submissions, at 16 - 20.

42. Although not a wholly unusual circumstance in trials in which there are multiple accused, Counsel submitted that the circumstances, here, are that the evidence indicates admissions made by one accused, which implicate a second accused, Ms Spiteri-Ahern, but are inadmissible as against Ms Spiteri-Ahern. This is so due to the fact that there was no direct communication between Ms Barber and Mr Haile. Counsel for Ms Spiteri-Ahern submits that “…the only way that Ms Barber can be guilty of the offence is if Ms Spiteri is guilty of the offence. And the other way that she (Barber) can be guilty of the offence that she’s charged with is if she had passed that information to Ms Spiteri-Ahern and Ms Spiteri-Ahern had passed the information to Mr Haile, that information being the whereabouts of Mr Haile” (sic: read Pasnin): Transcript, at 11.

39. Counsel for Ms Spiteri-Ahern contends that it is possible that the jury will misuse the evidence in one case, in relation to the other case. Although conceding that juries are given directions in relation to ignoring evidence of co-accused, counsel for Ms Spiteri-Ahern submitted that it is much more difficult, and almost impossible, for a lay person, in circumstances where the evidence in question is evidence of an admission, to look at evidence which is said to convict one accused, and ignore it in relation to another accused: Transcript, at 14.

40. The application of Ms Spiteri-Ahern also relies on the judgment of RS Hulme AJ on 24 February 2016 refusing an application for separate trials. It is submitted that portions of the judgment support the application for a judge alone/separate trials: written submissions, at 5 - 6.

41. In relation to the provisions of s 132(5) and whether the matters involve community standards, counsel for Ms Spiteri-Ahern referred the Court to the cases of R v Adams (No 2) [2016] NSWSC 1359 (per Button J) and R v Simmons; R v Moore (No 4), supra, that matters of intention do not involve the application of community standards: Transcript, at 19 - 20.

42. The accused, Ms Spiteri-Ahern, through her counsel, suggests that the Court may take into consideration, as something that should be given some weight, the fact that the accused has elected to have a trial by judge alone, as opposed to trial by jury.

Submissions on behalf of Barber

47. The accused, Ms Barber, relied on the Affidavit of Jordan Luke Moussa sworn 12 May 2017 in the application, as well as on written and oral submissions.

48. A similar argument was mounted by counsel for Ms Barber, in terms of the danger in admitting evidence against Mr Zraika, which will not be led against Ms Barber, and is said to be prejudicial against Ms Barber.

49. Counsel for Ms Barber submitted that evidence of admissions as against each accused, critical pieces of evidence in the Crown case, are admissible against one accused and not each other accused. This is the case, as submitted, for admissions allegedly made by Mr Zraika in listening device materials and in conversations between Mr Haile and Ms Spiteri-Ahern. These materials, it is submitted, are not admissible against Ms Barber: written submissions, at [6] - [9].

50. Specifically, counsel refers to listening device recordings between the accused Ms Barber and the accused Mr Zraika, iCloud messages and iPod messages, annexed to the Affidavit of Jordan Luke Moussa.

51. It is submitted that the risk of unfair prejudice in relation to inadmissible evidence, can be overcome by the fact of a judge alone trial and further that there is no application of community standards: written submissions, at [17] - [19]).

52. It is submitted by counsel for Ms Barber that delay and further oppression can be reduced, if the trial were to be heard by a judge alone, given the “entirely unsatisfactory” history of the matter from the perspective of Ms Barber: written submissions, at [17].

53. Counsel for Ms Barber highlighted that this is a rare case, in which a jury trial has already occurred, the result of which was that no decision could be reached in relation to the remaining co-accused. Counsel submits that the way in which the summing up occurred solely in relation to Mr Haile and Ms Spiteri-Ahern was due to the difficulties identified by the trial judge in relation to derivative liability: Transcript, at 28.

54. Counsel for Ms Barber also submitted the relevance of the election of the accused to forgo the right to a jury trial: Transcript, at 29.

55. It was also submitted on behalf of the accused Ms Barber that the benefit, particularly in a case such as this, for reasoned judgment with transparency, rather than a jury verdict, will eliminate the potential for a perverse verdict: Transcript, at 29.

Submissions on behalf of Zraika

56. The accused, Mr Zraika, although legally represented for the purpose of the election, did not have representation on the day of the hearing. A solicitor from Macquarie Lawyers appeared as amicus curiae on behalf of Mr Zraika in circumstances where Mr Zraika was in the process of seeking legal aid for his representation.

Submissions on behalf of the Crown

57. The Crown submitted that the fact that much of the evidence is admissible against all three co-accused, resulting in many witnesses having to give evidence, is one factor militating against a separation of the trials: Transcript at 3; written submissions at 60. As a consequence, much of the evidence would need repeating if the trials were to be separated, potentially causing considerable expense, inconvenience and trauma for the family and witnesses: written submissions at 60. The nature of the circumstantial case the Crown has against the three accused is, as submitted by the Crown, further reasons to keep the trials together: written submissions, at 60.

58. In relation to evidence admissibility the question referred to at [49] above, the Crown submitted, when questioned, as to the use of past tense in the Evidence Act 1995, that the section makes reference to a common purpose at the time in which the representation was made as the relevant point in time in relation to s 87: Transcript, at 39.

59. The Crown submitted that the criminal justice system depends on the integrity and reliability of juries, and individual jurors in particular, and on the ability to implement the directions given by trial judges. The experience of the Court, it was submitted, is that juries adhere to directions that are given by judges: Transcript, at 43. The Crown cited authority on the reliance on juries, within the justice system, to implement directions: Demirok v The Queen (1977) 137 CLR 20; (1977) HCA 21 at 3; The Queen v Glennon (1992) 193 CLR 592; [1992] HCA 16.

60. The Crown submitted that evidence going to Ms Spiteri-Ahern, if within the category of evidence that was easily identifiable, could be removed from the materials, if the Court were of the view that the materials were unfairly prejudicial and could not be cured with direction. However, it was conceded that there remained material where there is not a direct or easily identifiable passage, such as the listening device recordings: Transcript at 44. The Crown does not agree that the materials identified as prejudicial evidence by Ms Spiteri-Ahern, would be admissible against Ms Spiteri-Ahern, unless it is communications in which she was a participant: written submissions, at 130 - 131.

61. The Crown outlined the evidence said to be inadmissible and provided that evidence said to be inadmissible against one or other accused will be cured with appropriate directions to the jury. The Crown submits that directions to the jury in relation to evidence to be admitted, not as against one or other accused, will be “blunt and to the point, and a jury would have no trouble implementing it”: written submissions, at 142 - 157.

62. The Crown’s fundamental position is that the prejudice of any of the materials referred to by counsel for each accused can be cured with directions to the jury. Further, that none of the evidence referred to by the accused is so dangerous that the jury would not be able to put it aside in accordance with directions: Transcript, at 47. The Crown further maintains that the submissions filed on behalf of Ms Barber do not identify, sufficiently, the evidence that would be inadmissible and the reasoning behind the assertions that the evidence is unfairly prejudicial in a way that could not be overcome: written submissions, at 101.

63. The Crown raises the possibility that the jury could accept beyond reasonable doubt that Ms Barber and Mr Zraika were guilty of their charges, and not Ms Spiteri-Ahern, and vice versa: written submissions, at 120 - 125.

64. The Crown submits that murder is a very serious crime and therefore there is a community interest in members of the community being involved in the determination of guilt or innocence: Transcript, at 50.

65. Ultimately, the Crown conceded, notwithstanding the initial submissions, that this is not a case in which community standards play a role in the determination of the crime: Transcript, at 49 - 51.

Consideration

66. It is the experience of the Court, as presently constituted, that directions given to juries are understood and followed. The legislation, however, provides for the hearing of a trial by judge alone and in circumstances where all three accused elect for a judge alone trial, which is opposed by the Crown, the Court must determine whether that course is in the interests of justice.

67. The Court must be persuaded, by the accused providing sufficient reasons, that a trial by judge alone is in the interests of justice. This, as was explained in Belghar, supra, is an evidentiary burden on the accused applicant. The Court must determine whether, not only justice can be done, but whether justice can be seen to be done in the hearing of the trial by a judge alone: Transcript, at 20.

68. The case that is before the Court is one in which evidence that is to be adduced against one accused may be unfairly prejudicial as against another accused. That evidence is “admission” evidence; admissible against one of the accused; possibly admissible for a very limited purpose against one or more other accused; and which the jury would have to ignore in relation to other uses.

69. This circumstance may colour the view of the jury as against a particular accused, in circumstances where it may be impossible to negate the poisoning of the well with direction.

70. Given the circumstances surrounding the current trial before the Court, and the nature in which the previous trial ended, it is important, in the interests of justice and the administration of justice, for the family of the deceased and also for the three accused, to have the trial heard and determined. It would not be satisfactory for this to occur in three separate trials, where the family of the deceased would need to give evidence and go through three trials.

71. The nature of the evidence and of the relationships between the accused involves the risk that, even with directions, it would be difficult to avoid unfair prejudice to any and all of the accused. The grant of the application of the accused for separate trials, expressly in order to reduce the risk of unfair prejudice, the burden that this would place upon the Court and, importantly, upon the family of the deceased and any witnesses, who may be required to give evidence at all three trials, could not be considered a sensible solution. Nor is it in the interests of justice.

72. In all of the circumstances and on the evidence placed before the Court for the purpose of the application, it is apparent that it is in the interests of justice to ensure that the trial goes ahead and is concluded in relation to all accused, in one trial. The issues and evidence overlap significantly.

73. Further, the risk of unfair prejudice arising from the intertwined evidence, only some of which will be admissible for all purposes in the trial of one or other accused is extremely problematic. While I reiterate my faith and experience that jurors follow directions given, I am concerned that the “poison” will infect the decision of the jury and is so significant that the real possibility of the evidence being used inappropriately may reasonably colour the accused’s, or a reasonable onlooker’s, perception that a fair trial has been conducted. In those circumstances, it is in the interests of justice that the trial proceed as a judge alone trial.

Conclusion and Orders

74. For the foregoing reasons, the Court ordered that a trial by judge alone is in the interests of justice and would be conducted. The orders, which are repeated for completeness, were:

1. Application under s 132(1) of the Criminal Procedure Act 1986 granted;

2. Trial to be conducted by Judge alone;

3. Application for separation of the trials of each accused refused.

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Amendments

11 October 2017 - Amendment to typographical error

13 April 2023 - Publication restriction lifted.

Decision last updated: 13 April 2023