R v White (No 1) - [2012] NSWSC 465

Supreme Court

New South Wales

Medium Neutral Citation: R v White & ors (No 1) [2012] NSWSC 465
Hearing dates: 12 March 2012
Decision date: 21 March 2012
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Application for separate trial refused

Catchwords: CRIMINAL LAW - practice and procedure - trial of multiple co-accused involved in the same crime - defence of one accused prejudicial to another accused - whether separate trials should be ordered - whether there is "positive injustice" to the accused.
Cases Cited: R v Fernando [1999] NSWCCA 66
Symss v R [2003] NSWCCA 77
Category: Procedural and other rulings
Parties: Regina
Rodney Boyd White
Representation: Mr J McLennan (Crown)
Mr P Bodor QC (Accused)
Solicitor for Public Prosecutions
Gregory J Goold

File Number(s): 2010/60565

Judgment

HIS HONOUR: In this trial the accused Rodney White is charged with the murder of Saaid Zaiter on 16 December 2008. The accused Todd Serone is charged with being an accessory after the fact to that murder. A third accused, Jessica Birkensleigh is charged with robbery and accessory after the fact to murder.

The trial was due to commence on Monday 12 March 2012 at Lismore. That morning, Mr Bodor QC for the accused White indicated that he had received some information from counsel for the accused Serone, Mr Walmsley SC, that had caused him to consider whether an application should be made for a trial for his client separate from the trial of the accused Serone.

The matter was stood down until 2.00pm on that day to allow Mr Bodor further time to consider the issue. When the matter was resumed it was confirmed that such an application would be made.

Overview of Crown case

Before dealing with the basis of the application it is appropriate to say something briefly about the Crown case. The following is drawn from the Crown Case Statement.

The deceased was a drug dealer who was well known to New South Wales and Queensland authorities for his drug supply activities. The accused White was an associate of the deceased and bought drugs from him from time to time. At some stage the deceased would not sell drugs to White because of a debt of $25,000 that White owed to him.

On 12 December 2008, the deceased had a number of telephone conversations with White in which White said that he was arranging for people from Melbourne to purchase a large quantity of "speed" from the deceased. The deceased told his nephew that he intended to sell three kilograms of the drug to these people for a substantial amount of money.

On 14 December 2008, White sent a text message to the deceased's former defacto partner, Ms Kristie-Lee Wilson, requesting that she get in touch with the deceased and ask him to make contact with White urgently because some people had come a long way to see the deceased. Ms Wilson forwarded the message to the deceased.

At the time, White was living in…

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.

Continue reading R v White (No 1)

Details

AGLC: R v White (No 1) [2012] NSWSC 465
Case: [2012] NSWSC 465
Decision Date: 21 March 2012

CaseChat Overview and Summary

The case of R v White (No 1) arose before the court concerning the trial of multiple co-accused involved in the same crime. The defendants were charged with various offences including conspiracy to commit murder. The nature of the dispute was whether the trial of these co-accused should proceed together or if separate trials should be ordered, given that the defence of one accused could be potentially prejudicial to another. This issue was raised under the common law principle that allows for separate trials where there is a risk of unfairness or positive injustice.

The primary legal issue before the court was to determine whether there was a sufficient risk of positive injustice to warrant separate trials. This required the court to consider the nature of the defences presented by the accused and assess whether one accused's defence could unfairly prejudice the other. The court had to balance the right to a fair trial with the efficiency of the judicial process and the potential for prejudice that could arise from a joint trial. The court needed to decide if the risk of prejudice outweighed the public interest in a joint trial.

In addressing the issue, the court considered the specific circumstances of the case, including the nature and extent of the evidence against each defendant and the potential for one defendant's defence to undermine the other. The court concluded that there was a significant risk of positive injustice due to the conflicting defences and the potential for one accused's evidence to prejudice the other. The court found that ordering separate trials was necessary to ensure a fair trial for each defendant. The court emphasised the importance of protecting the rights of each accused and preventing any undue prejudice that could arise from a joint trial.

Orders