Regina v JP - [2013] NSWSC 1370

Supreme Court

New South Wales

Medium Neutral Citation: Regina v JP [2013] NSWSC 1370
Hearing dates: 16 September 2013
Decision date: 19 September 2013
Jurisdiction: Common Law - Criminal
Before: Hall J
Decision:
Order that the accused JP be tried separately from the accused JH

Catchwords: CRIMINAL LAW - application for separate trial - a central issue in Crown case is the identity of the person who wielded a bottle used as a weapon against the deceased - Crown case against applicant is reasonably strong circumstantial case - evidence against co-accused inadmissible against applicant - inadmissible evidence is only evidence capable of being seen as directly bearing upon above issue - Crown case made stronger by reason of prejudicial inadmissible material - jury directions not sufficient to avoid miscarriage of justice - real risk of positive injustice in joint trial - separate trial ordered
Legislation Cited: Criminal Procedure Act 1986
Cases Cited: Ignjatic v R (1993) 68 A Crim R 333
Madubuko v R [2011] NSWCCA 135
Pham [2004] NSWCCA 190
R v Baartman (NSWCCA, 6 October 1994, unreported)
R v Domican (1989) 43 A Crim R 24
R v Fernando [1999] NSWCCA 66
R v Iskander [2011] NSWSC 1192
R v Lockett [2013] NSWSC 859
R v Middis (NSWSC, 27 March 1991, unreported)
R v Patsalis (1999) 107 A Crim R 432
R v Taouk (NSWCCA, 17 December 1992, unreported)
Webb & Hay v R (1994) 181 CLR 41
Category: Interlocutory applications
Parties: Regina (Crown)
JP (Applicant)
Representation: Counsel:
P Leask (Crown)
PD Young SC (Applicant)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Lex Fori Lawyers (Applicant)

File Number(s): 2011/235975

Judgment

HIS HONOUR: The applicant, JP by Notice of Motion filed in Court on 10 September 2013, seeks an order for a separate trial from that of his co-accused, JH. The joint trial is presently listed for hearing on 23 September 2013.

The application made for a separate trial on behalf of the applicant by Mr Young SC, was opposed by the Crown.

Both accused stand charged with the offence of murder in relation to the death of Eden Delir on 5 November 2010, the offence allegedly occurring as a result of injuries inflicted on him on 30 October 2010.

The Crown case is that there was a joint criminal enterprise involving the accused, JP and JH and four other young persons to assault and occasion upon the deceased grievous bodily harm. The assault was said to have been in the nature of a revenge attack upon the victim because he allegedly provided information to police concerning an alleged offence of robbery.

As I understand the Crown's oral submission at T 16 September 2013, T 31:41-T 32:15, the Crown's primary case against the applicant is that he was the person who wielded a bottle smashing it on the head of the deceased, thereby intentionally inflicting head injuries to him which were causally related to his death. The Crown alternatively relies upon joint criminal enterprise liability against the applicant.

Background

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 Regina v JP

Details

AGLC: Regina v JP [2013] NSWSC 1370
Case: [2013] NSWSC 1370
Decision Date: 19 September 2013

CaseChat Overview and Summary

The applicant, JP, applied for a separate trial from his co-accused in relation to a charge of murder. The case was heard in the Supreme Court of South Australia. The central issue in the Crown's case was the identity of the person who used a bottle as a weapon against the deceased. The applicant argued that the Crown's case against him was reasonably strong, but the evidence against the co-accused was inadmissible against him. The inadmissible evidence was the only evidence that could be seen as directly bearing upon the issue of identity.

The court was required to decide whether a separate trial should be granted to avoid a miscarriage of justice. The court found that the Crown's case made stronger by reason of the prejudicial inadmissible material. The court also found that the jury directions were not sufficient to avoid a miscarriage of justice. The court considered the real risk of positive injustice in a joint trial and ordered a separate trial for the applicant.

The court noted that the Crown's case against the applicant was a strong circumstantial case. However, the inadmissible evidence against the co-accused was the only evidence that could be seen as directly bearing upon the issue of identity. The court found that there was a real risk of positive injustice in a joint trial, and that a separate trial was necessary to avoid a miscarriage of justice. The court ordered a separate trial for the applicant.

Orders