Regina v Symss and Masson

[2000] NSWSC 1089

CITATION:	Regina v SYMSS and MASSON [2000] NSWSC 1089
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 70212/00; 70065/00
HEARING DATE(S):	23 November 2000
JUDGMENT DATE:	28 November 2000
PARTIES :	Crown - Respondent Shane Antoni SYMSS - Applicant Leonard James MASSON - Applicant
JUDGMENT OF:	Simpson J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	42-50/2000
LOWER COURT JUDICIAL OFFICER :	Mr A O'Donoghoe

COUNSEL :	Crown - Mr T Thorpe Shane Antoni Symss - Mr J Stratton Leonard James MASSON - Mr T Molomby
SOLICITORS:	Crown - Mr S E O'Connor Shane Antoni Symss - Ms N Hamilton Leonard James Masson - Mr J N Mostyn
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R v Lansdell, 30 March 1995 per Gleeson CJ
DECISION:	Application for separate trials refused.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

28 November 2000

70212/2000
70065/2000

REGINA v Shane Antoni SYMSS

REGINA v Leonard James MASSON

Judgment

HER HONOUR :

1    Two accused, Shane Antoni Symss and Leonard James Masson, have been committed for trial for the murder of Ms Florence Marino at Wagga Wagga on 24 April 1999. A joint trial is fixed to commence on 23 April 2001. Symss has applied for a separate trial. The application is supported by Masson and opposed by the Crown.

2    The principles applicable to such an application have most recently been restated by the Court of Criminal Appeal as encompassing the following:

1. Where the evidence against an applicant for separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and
2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and
3. where there is a real risk that the weaker Crown case against the applicant 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: R v Baartman (unreported, Court of Criminal Appeal, 6 October 1994); in turn citing R v Middis , Turner, Baker, White and Insley (unreported, David Hunt J, 27 March 1991; further applied in R v Piller and Others 1995 86 A Crim R 249 per Dowd J).

3    It is necessary to consider the basis on which the Crown mounts its case, and then the arguments for and against separate trials.

The Crown Case

4    Ms Marino was a seventy-five year old widow who lived alone at 7 Beltano Avenue, Wagga Wagga. At 3.15 pm on 24 April 1999 her dead body was found on the floor of her lounge room by a neighbour. Post mortem examination showed that death was consistent with having been caused by smothering, but there were also stab wounds to her neck.

5    Both accused had been living in a shelter, Symss for eight days, Masson for four, and had formed a friendship. Masson’s former de facto, Rachael Windon, had a close friendship with Ms Marino and Masson also came to know her well. In about October 1998 Rachael Windon and their young daughter Shannon left Masson and moved to Queensland. However, Masson continued to have some contact with Ms Marino. In about the middle of 1998 Ms Marino suspected that Masson had stolen money from her. She was at that time ill-disposed towards him. Subsequently she was told that Masson had falsely stated that Shannon, to whom Ms Marino was attached, had died. She was ill-disposed to him as a result of this information also.

6    In January 1999 Masson was known to be in possession of a knife.

7    Both Masson and Symss left the shelter in which they were staying suddenly on the afternoon of 24 April. Before he left Symss was observed to be agitated and jumpy. The accused travelled together in Ms Marino’s motor vehicle to Broken Hill. They abandoned the vehicle a little way out of Broken Hill and obtained accommodation in a local hotel. In the bar of the hotel they met Tristan Robson and engaged him in conversation. During the course of the conversation Symss told Robson they wanted to burn the car because “we knocked the cunts and took their car”. When Robson asked if “knocked” meant “bashed or what?” Symss said the person was dead. Masson, who was nearby, made no comment. Later, Robson asked Masson if it were true and Masson said he would talk to Robson later. Symss asked Robson if he could get rid of some jewellery.

8    Police located the motor vehicle and began making inquiries at Broken Hill hotels and motels. On 27 April both men were separately arrested. Police searched the room they had occupied and found, concealed in a sock, jewellery that had belonged to Ms Marino.

9    DNA evidence renders it virtually certain that strands of hair found on Ms Marino’s body are those of Symss. Further DNA evidence renders it virtually certain that blood on a jacket in Symss’ possession is that of Ms Marino. Symss claimed that the jacket had been given to him by Masson.

10    Each accused participated in a number of lengthy electronically recorded interviews. In short, when interviewed, each accused admitted having gone to Ms Marino’s home twice on the day of her death, with a view to persuading her to lend money to Masson. Each claimed that she willingly admitted them to the house. Each says that they stole her jewellery and car and took money from her handbag or wallet and that, after she had died, they sat in the back sunroom and smoked. Both said that they took steps to avoid leaving fingerprints or to remove any fingerprints that might have been left. Both said that after the death they went to a local hotel where they used the money they had stolen.

11    However, when it came to giving an account of what had caused Ms Marino’s death, each accused the other. Masson said that he walked into the living room to find Ms Marino lying on the floor with a pillow over her face and Symss holding it there. In a later interview (14 May) he claimed to have had a further recollection and he described Symss holding Ms Marino from behind.

12    Symss, on the other hand, said that he waited outside having a cigarette while Masson knocked on the door and entered the house and that a little later Masson told him to come in and that he then saw her body in the lounge room.

13    The Crown proposes to make its case in three alternative ways: firstly, the case is one of felony/murder: that is, that the accused engaged in a joint enterprise to rob Ms Marino and that during the course of the robbery one or other of them killed her; secondly that the two engaged in a joint criminal enterprise the object of which was to murder Ms Marino to enable them to steal her property; thirdly, that the two embarked on a joint enterprise, their common purpose being to rob Ms Marino, recognising that her death was a possible incident in the carrying out of their plan. The Crown argues that it is not essential that it identify which of the two performed the fatal act.

14    The application on behalf of Symss has a number of aspects. Firstly, counsel argued that Masson’s records of interview contain material extremely damaging to, but not admissible against, Symss. Without exploring the intricacies of the Evidence Act 1995, I am prepared to accept that those passages of the interviews in which Masson describes what he says Symss did are not admissible against Symss as evidence of the truth of what is contained therein. Yet, as counsel had observed, that evidence is extremely prejudicial. I was told that the video evidence includes a video recording of Masson conducting police around Ms Marino’s house and demonstrating what he said he had observed on 24 April. I was not invited to view the videos, or indeed, to read the transcript of this recording, but I accept that such a description has potential to convey graphically to the jury Masson’s account of the events, and thus to strengthen (impermissibly) the Crown case against Symss. However, that is somewhat neutralised by Symss’ own records of interview. A jury in a joint trial would have two competing accounts of the event. Further, it is well established that juries must be trusted to act in conformity with directions given to them by trial judges (R v Lansdell, CCA, 30 March 1995, per Gleeson CJ) and it may be anticipated that a careful and comprehensive direction will be given in strong terms to the jury.

15    A second basis for the application concerns evidence that directly involves Masson only. There are three categories of this evidence, although two of them have similar features. These are the evidence that Ms Marino believed that Masson had stolen money from her and that she was angry because she believed that he had falsely claimed that his daughter was dead. Both of these will be tendered by the Crown to rebut the claims in the interviews, and demonstrate the unlikelihood, that Ms Marino readily and willingly permitted Masson to enter her home. The curious aspect of this argument is that counsel for Symss would wish to adduce this evidence himself (or have the Crown adduce it) in a separate trial against Symss, but, for the purposes of the present application, asserts that it is unlikely to be admitted against Masson and therefore would be excluded in a joint trial.

16 What evidence is to be admitted against Masson is, of course, a matter for the trial judge. However, I do not accept that it is unlikely that the evidence will be admitted against him whether in a joint or a separate trial. The only basis on which it was suggested that the evidence might be rejected against Masson is that provided in s 137 of the Evidence Act 1995. This, it was said, was because the evidence tends to establish that Masson was guilty of criminal conduct in stealing money; it is not clear why it was claimed that the evidence about his assertion concerning the death of his child would be rejected.

17    The evidence would not be tendered to establish that Masson was guilty of theft, or of making the claims mentioned. The evidence would be tendered to establish the state of mind of Ms Marino, not that Masson had in fact stolen money from her or had in fact made the statement about his daughter.

18 I am unable to accept the likelihood that this evidence would be excluded under s 137.

19    It is possible that the evidence would be excluded because the events said to give rise to Ms Marino’s antipathy to Masson were too remote in time; if that is so, it would also be excluded in a separate trial of Symss, as not being probative of Ms Marino’s attitude to Masson on the day of her death.

20    But there is a more fundamental flaw in the argument. In Symss’ record of interview he, like Masson, claimed that Ms Marino had voluntarily allowed Masson to enter the house. Unless he is now to contend that that was false, he cannot set out to prove, by the disputed evidence or otherwise, that it was unlikely that Ms Marino would have permitted Masson entry to the house.

21    The third category of evidence that Symss would wish to call in a separate trial, but the admissibility of which is said to be doubtful in relation to Masson, is the evidence of his possession of a knife or knives. Again, I am unable to see that it is likely that this evidence would be excluded. Depending on when it was that he was said to have had a knife, the evidence would have significant probative value. Again, if the time at which possession could be demonstrated was too remote to warrant admission of the evidence against Masson, that same feature would warrant its exclusion in a case against Symss, if he sought to use it to inculpate Masson.

22    I therefore do not perceive that any prejudice will arise to Symss as a result of his being deprived of evidence he would wish to use to support his case that Masson was the killer.

23    A third matter was raised but pressed somewhat faintly. It was said that both accused have some, although limited, criminal history and that in a separate trial, if one accused was called to give evidence against the other, he would be cross examined in relation to that record, but that this evidence could not be adduced in a joint trial. As I observed when this argument was put, there is no certainty that either accused would be called; it would be impossible to call an accused whose trial had not been held in the trial of the other.

24    In supporting the argument advanced on behalf of Symss, counsel for Masson argued that his proposed objection to the evidence about Ms Marino’s state of mind in relation to Masson would be successful. Counsel argued that, the accounts given by both accused in their records of interview were that Ms Marino willingly admitted Masson to her home and that there would therefore be no light thrown on which of the two competing accounts should be accepted. This argument, it seems to me, is based on a false premise, that is, that in respect of those matters which are common to the versions given by the two accused, those accounts must be accepted as truthful. The Crown is, in my view, not precluded from putting forward the records of interview and inviting the jury to find that, in part, they are truthful, and in part they are false.

25    It was further argued that, when the evidence is properly analysed, the two cases have little in common and the evidence relating to the two accused is quite divergent. Although, in an application for separate trials, it is not possible to be fully conversant with the whole of the case the Crown will ultimately make, it seems to me that there is a great deal of commonality in the cases between the two men. It is only in certain (crucial) answers given in the records of interview that there is significant divergence, but this does not mean that the Crown cases against the two men are significantly different. It simply means that, in a most important respect, the accused made separate assertions.

26    I am not satisfied that either accused has been able to demonstrate any real or significant prejudice as a result of being tried jointly with the co-accused. Accordingly, I refuse the application for separate trials.

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Last Modified: 12/01/2000