Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Pantea v R [2020] NSWCCA 278 Hearing dates: 19 October 2020 Date of orders: 19 October 2020 Decision date: 23 October 2020 Before: Hoeben CJ at CL [1] Harrison J at [2] Bellew J at [3] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIMINAL LAW – Practice and procedure – Where applicant and co-accused jointly indicted for two counts of robbery in company – Where the evidence relied upon by the Crown against each of them essentially the same but for two telephone conversations between the co-accused and a witness – Where co-accused made admissions during those conversations – Where neither the co-accused or the witness implicated the applicant in the offending or made any reference to him – Where the applicant's application for a separate trial was refused by the trial judge – Whether trial judge erred in the exercise of his discretion in refusing the application for a separate trial – No specific prejudice to the applicant by virtue of the admission of the conversations in a joint trial – Where jury would be directed not to have regard to those conversations when considering the case against the applicant – Appeal against the decision of the trial judge dismissed Legislation Cited: Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: DR v R [2019] NSWCCA 320 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Hamalainen v R [2019] NSWCCA 276 Hough v R [2019] NSWCCA 293 House v The King (1936) 55 CLR 499; [1936] HCA 40 R v Baartman (Court of Criminal Appeal (NSW), 6 October 1994, unrep) R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 R v Middis (Supreme Court (NSW) 27 March 1991, unrep) Category: Principal judgment Parties: Evan Pantea – Applicant Regina – Respondent Representation: Counsel: L Fernandez – Applicant G Newton – Crown Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Crown File Number(s): 2018/394065 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 12 October 2020 Before: King SC DCJ Judgment 1. HOEBEN CJ at CL: I agree with Bellew J. 2. HARRISON J: I agree with Bellew J. 3. BELLEW J: INTRODUCTION 1. Evan Pantea (the applicant) has been indicted in the District Court of New South Wales, jointly with Ater Gurin (Gurin), in respect of two counts of robbery in company said to have been committed on 29 November 2018. He brought an application before the trial judge, his Honour Judge King SC, for a separate trial, which was refused. The applicant then sought leave to appeal to this Court, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), against that decision. 2. The application was heard by the Court on 19 October 2020. At the conclusion of the hearing the Court made the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal. 1. My reasons for joining in that determination now follow. THE CROWN CASE AGAINST THE APPLICANT 1. The following summary of the Crown case against the applicant is drawn from the Crown case statement. [1] The events leading up to the alleged offending 1. In November 2018 the applicant and Lingeswaran Eswaran (Eswaran) [2] lived together in premises located within a multi-story housing complex in Redfern. CCTV cameras covered points of entry into, and exit from, the complex. 2. On the evening of 28 November 2018, and in the early hours of the morning of 29 November 2018, the applicant and Eswaran were inside the premises with a third person, Shantell Tuhi-Burd (Tuhi-Burd). Tuhi-Burd and Eswaran had previously been in a relationship. At some point during that evening, Eswaran told Tuhi-Burd that he and the applicant were going for a "spin walk", a reference to walking around nearby streets in an attempt to find discarded cigarettes. Eswaran and the applicant then left the premises. Count 1 1. At 2:23am on 29 November 2018 Eswaran and Gurin were seen on CCTV footage leaving the complex. Eswaran was wearing a red, blue and camouflage coloured hooded jacket with white stripes down the arms and an "Adidas" symbol on the left breast, a pink cap, pants and dark shoes. Gurin was wearing a black hooded jumper with the word "AIR" written on the right sleeve, a black hat, black pants with white writing on the right leg, a white bandana worn over his face and white shoes. 2. At about 2:24am the applicant was seen on CCTV footage leaving the complex. He was wearing a red bandana on his head, a black jumper with white writing reading "money", dark coloured cargo pants and dark shoes. The applicant returned inside briefly but at 2:30am he emerged wearing a grey jumper, dark pants and dark shoes, with a red bandana covering the lower half of his face. 3. At about 3:00am Saad Khan (Khan) was walking down Cleveland Street, Surry Hills on his way home from work, wearing a pair of "Beats" headphones and listening to music. Near the intersection of Cleveland Street and Cleveland Avenue, one of the three accused grabbed the back of Khan's head and shoved him forwards. Khan fell to the ground and saw three males, two of whom were holding pocket knives close to his neck. He felt threatened and thought that he would be harmed if he did not cooperate. One of the three accused said: Don't fight, don't fight back. 1. One of the accused then took off Khan's jumper and said: You're a strong man, don't make us use a knife. 1. The three accused then put their hands on Khan and checked his pockets. His wallet, watch and mobile phone were all taken from him. 2. Khan described the three accused as being slim, in their early 20s, and wearing scarves or some sort of cloth covering their mouths and bottom of their faces, such that only their foreheads and eyes were visible. He described one of the accused as a Caucasian wearing a baseball cap, and the other two as having tanned skin and possibly of African American appearance. 3. Khan saw one of the accused with his headphones and another with his phone. The latter accused said to him: Tell me your pass code. 1. Khan did not reply, whereupon another accused approached him holding a knife and saying: If he gets it wrong or doesn't tell you, I will stab him. 1. This made Khan fearful and he disclosed the pass code. 2. Khan was then asked: What's your Apple ID password? 1. Khan responded but the accused who asked that question did not hear him. At that point another accused approached Khan with a knife in his hand. The phone was then given back to Khan to allow him to enter his Apple ID. After he did so, the phone switched off. Khan then said: Can I have my wallet back please, it has a lot of important cards. 1. His wallet and its contents were returned, save for a Commonwealth Bank debit card. One of the accused then asked: How much money do you have? Khan replied: Not much. The accused then returned the debit card and said: We are not bad people. 1. The three accused then ran away in possession of the phone, headphones and watch. Khan went home and the incident was reported to police. 2. About 3:20am the three accused were seen on CCTV returning to the complex wearing the same clothing, with cloth over their faces, as described by Khan. The applicant can be seen in the footage wearing headphones matching those previously taken from Khan. Eswaran can be seen using a mobile phone. 3. Eswaran and the applicant then entered their premises and spoke to Tuhi-Burd. When asked by Tuhi-Burd where he had obtained the phone, Eswaran replied that he had taken it from "some guy". When Tuhi-Burd asked him how he managed to get it unlocked, Eswaran replied: I forced a guy to give me the password. 1. Eswaran then gave the phone to Tuhi-Burd and she entered her Apple iCloud account and registered the phone, following which Eswaran and the applicant used the phone to make calls. A week later, Eswaran broke the phone and threw it away. Count 2 1. Eswaran and the applicant subsequently left the premises again, telling Tuhi-Burd that they were going to get some cigarettes. At 4:25am the three accused were seen on CCTV leaving the complex. Eswaran and Gurin were wearing the same clothes as they had been wearing earlier. The applicant was wearing a black hooded jumper with a green square and white writing on the front, "camo" style pants and a red bandana covering the bottom half of his face. 2. Earlier that morning Carlos Hernandez (Hernandez) had driven his vehicle to the Surry Hills Shopping Village Mall to buy cigarettes and food. He had consumed a quantity of alcohol beforehand and, feeling its effects, he parked his vehicle in the car park of the Mall and fell asleep. Around 4:30am he woke to the sound of men whispering outside, and saw shadows on either side of his car. One of the accused opened the door of the vehicle and punched Hernandez to the right side of his face, saying: Don't look at my face. Hurry up. Hurry up. Hurry up. 1. Hernandez fell to the ground. He saw one of the accused, who he described as being 20 to 25 years of age with short dark hair wearing dark clothes, run around his vehicle. A second accused, who he described as about 20 to 25 years old and dressed in dark clothing with dark short hair, a neatly trimmed beard and large thick eyebrows, held him to the ground and continued to punch him on the right side of his face. In the course of doing so, a number of items of property were taken from Hernandez, namely: 1. a Samsung mobile phone; 2. a Samsung tablet; 3. Bose wireless headphones; 4. a leather wallet containing a Commonwealth Bank savings card and several foreign and Australian identity cards; and 5. $5 in cash. 1. Holly Ellis, whose premises overlooked the car park, woke at 4:30am to the sound of car doors opening and closing. When she looked out of her bedroom window she saw the vehicle belonging to Hernandez with both doors open and two men standing next to it. Although she could hear people talking she could not understand what they were saying. Ms Ellis then saw three men standing at the open driver's side door. She saw two of the men holding Hernandez by his shoulders, and the third standing to the side around the front of the car. She described the three men as being slim, with two wearing black clothing and the third wearing an orange zip up jacket. As she walked away from the window she heard one of the males say: What's your pass code? 1. She then heard another male say: Drag him over here. 1. Ms Ellis called triple-0 at 4:40am. Having done so, she looked out the window again and saw that the three accused had left. Hernandez was taken to hospital having suffered a number of significant injuries which required surgery. 2. At 4:38am the three accused were seen on CCTV footage returning to the complex. When the applicant and Eswaran went back into their premises Tuhi-Burd saw that the applicant was carrying a tablet device. At that time Eswaran said: We bashed a construction site guy. We force him to put his password into his phone. The bloke was drunk. 1. Tuhi-Burd also saw that the applicant and Eswaran were in possession of money which they said was "from the construction bloke's car". THE POLICE INVESTIGATION AND ARREST OF THE APPLICANT 1. On 21 December 2018 police executed a search warrant at the premises occupied by the applicant and Eswaran and seized: 1. the Beats headphones taken from Khan; 2. a hooded jacket bearing the word "Adidas" matching that worn by Eswaran on 29 November 2018; and 3. a grey hooded jumper matching that worn by the applicant on 29 November 2018. 1. Eswaran and the applicant were arrested that day. When interviewed, the applicant: 1. said that he lived at the premises and was the sole lessee; 2. said that "Paul Lingues" (Eswaran) had been staying at the premises for one to two months; 3. denied any involvement in, or knowledge of, the alleged offending; 4. denied recognising himself, or anyone else known to him, in still photographs taken from the CCTV footage. 1. Gurin was arrested on 22 February 2019. THE EVIDENCE 1. For the purposes of this application, and in addition to the matters referred to in the Crown case statement, it is necessary to refer in detail to some of the evidence which will be relied upon by the Crown. 2. Te-Paka Ngapuhi-Rapana (Rapana) provided a statement to the police on 29 January 2020 [3] in which she stated (inter alia) the following: [4] 4. Ater GURIN is my ex boyfriend of nine months and is 21 years old. 5. I met Ater and a couple of his rap mates who I know only as "MC" and "Evan" at a hall party in Granville on 8th October 2018. They are all about the same age. 6. Ater, MC and Evan all lived together somewhere in Redfern at the time. 7. Ater and I were together for about 7 months from early October 2018 until late April 2019 and quickly moved to live together with his family at 41 Talfourd Street, Glebe, New South Wales. 8. I can't recall the date in November 2018, but I think it was a weekday, when Ater and I were at the Redfern house with MC, Evan and their girlfriends Shantelle TUHI, who is my coisin [sic], and Lalani. I don't know Lalani's last name. 9. At about 3:00am we all got into a fight and Shantelle and I left the house to go and get some cigarettes. 10. When we got back to the house at about 4:900am [sic] or 5:00am in the morning, the three boys, Ater, Mc and Evan were making plans to leave because they were angry with us. 11. They were all wearing hooded jumpers and trackies and I think they were wearing all black from memory. But I think Ater had a black Nike cap on and Mc had a red one. 12. All the boys are pretty slim and tall as well. Evan is the tallest, then Ater, then Mc. 13. Evan is fair skinned and has blonde hair in dreadlocks that go past his shoulders. On the night I'm pretty sure he had it tied back underneath the hoodie. 14. Mc is Malaysian so has darker skin and keeps his dark hair braided. 15. Ater is Sudanese so is quite dark in his appearance and has shortish hair. He usually keeps it braided but it wasn't on this night. 16. Shortly after 6:00am, all three boys came back to the house and told Shantelle, Leilani and I that they had just robbed two blokes. They looked like they were really proud of themselves and were showing us a bunch of items that I hadn't seen before. 17. I think was Mc who just starter [sic] laying a number of items out on the loungeroom floor. There was what I think was a white iphone X, a black Apple watch, a black Samsung tablet and phone, a brown leather men's wallet with some ID cards inside and a whole bunch of coins like a sandwich size bag full, and a couple of notes, maybe a $10 and $20 note. 18. Ater, MC and Evan also took a knife out of the waist of their pants. I wasn't surprised by this at all as they all usually carry knives on them. 19. The knives were all part of a set and had black rubber like handles with grooves to grip them with. They were all different lengths but I can't remember who has which knife. Evan usually carries the largest one though. 20. It was mostly MC and Evan doing the talking. I can't recall exactly who said what but my understanding was that they had come across a guy on foot right near the Redfern police station. 21. They said one of the boys hit the bloke over the head with a fist from behind which made him fall over. One of the boys were [sic] holding the man and made him hand some of his things over. I think they mentioned they said it was the Apple watch, Samsung phone and tablet as well as some of the cash from him. 22. It was my understanding that Ater was acting as a standby and looking out for cars ect [sic]. 23. After this, they went up to a truck nearby and found a male asleep inside. One of the boys was near the driver's side while another stood by the passenger side. 24. The one on the passenger side knocked on the window. The driver then opened his door and was punched in the head by the one standing on the drivers [sic] side. 25. We were told the truck driver tried putting up a fight but was dragged out of the truck, before being punched and kicked. 26. I think the boys managed to take an ipad, iphone, and some cash off him. 27. I think it was Mc that told us that they also forced the truck driver to unlock his iphone and access his cloud, by holding a knife against the truck driver. 28. At the time I remember them telling me who did what when they robbed the blokes, but I don't remember anymore. 29. I don't know were [sic] the wallet came from. 30. After they had told us what happened, Mc started counting the coins and I think it was about $80 to $90 worth. 31. Ater and I went outside to the balcony at this point. Ater was still angry about me leaving the house earlier. 32. When I asked him why he had done what he did with the boys, Ater told me he [sic] mostly "standby", which I understood to mean like a lookout for people and police coming past. 33. Ater did mention that he kicked one of the guys once, but that it was Evan and MC who who [sic] really did everything else. 34. After about an hour or so the boys all started to get worried that the devices they had taken were being tracked so Mc ended up smashing the Samsung tablet, Apple watch and Samsung phone by throwing them over the balcony. 35. Mc kept the iphone for a while but I think he has since gotten rid of it after smashing it during an argument with Shantelle. 36. I don't know what ended up happening with the wallet. 37. They [sic] money all got spent later that day to buy food, smokes, and pot. 38. A few months later in February 2019, police came to our house and arrested Ater. 1. Tuhi-Burd also made a number of statements to police, the first of which is dated 17 January 2019 [5] and includes the following: [6] [4] I was previously in a relationship with Lingeswarn ESWARN [sic] for about nine months. I know people called him Paul, but I always called him "M.C.". M.C used to live with another boy who I only know as Evan at 41 Morehead Street. I don't know Evans [sic] last name. … [6] On the night of the 28th November 2018, I was inside unit 19 of 41 Morehead Street, Redfern with M.C and Evan. [7] M.C was wearing a Red jumper with blue down the bottom and the brand "Fila" in the middle. I believe he was wearing black Asic shoes, and black Chinos. I only remember Evan wearing a "Doo rag" being a small bandana piece of clothing that Evan always wore on his head. [8] About midnight both the boys left the unit. I don't remember [sic] the exact time was, but I remember that it was raining outside through the night. M.C said they were going out for a "Spin Walk". I know this to mean that they are walking around trying to find thrown away cigarettes. [9] The boys came back into the unit some time later. I don't know how long they were gone for, I just cleaned the house while they were away. When M.C got back into the unit, he was playing with a black iPhone. I have never seen M.C with this phone before. [10] I asked M.C where he got the phone from. He said he took it from some guy. I said: How did you get it unlocked? He said: I forced a guy to give me the password. [11] M.C handed me the phone and I put my Apple iCloud account into the iPhone. I registered the phone and Evan and M.C started making phone calls on the phone. [12] During the early morning of the 29th of November 2018, Evan and M.C left the unit again. They said they were still going to look for cigarettes. [13] When they came back, Evan was carrying a tablet device with him. M.C came up to me and he was smiling. M.C said; We bashed a construction site guy. We forced him to put his password into his phone. [14] I was shocked at what M.C said. I got angry. M.C then said: The bloke was drunk. [15] I saw that they also had money. They said they got the money from the construction blokes [sic] car. This is all I can remember about that. [16] About a week after this happened, M.C bit the iPhone he gave me, and the phone was completely broken. I think M.C threw the phone away. 1. In a subsequent statement dated 19 March 2020 [7] Tuhi-Burd said: [3] I have given the police a two [sic] statement about a robbery investigation on the 17th of January 2019. This statement is about my ex-boyfriend MC, and his friend Evan. When I made the statement, I didn't mention the third guy they were asking about. His name is Cairo but his real name is Ater. [4]. After signing the statement, I told Detective Ben MEIZER that his Instagram was Ynxgcairo. I didn't tell the police because I am scared of Cairo and what he would do to me. I was also friends with Cairo and he was dating Missy, who is my Cousin. 1. In a third statement dated 1 October 2020 [8] Tuhi-Burd was shown a number of still images taken from CCTV footage at the complex on 29 November 2018 in the course of which she identified: 1. herself and Eswaran in an image taken on 29 November 2018 at 12:56:25. [9] 2. "Leilani" (who she described as the applicant's girlfriend) and the applicant (wearing a black jumper with the word "money" across the front of it) in an image taken on 29 November 2018 at 13:01:40. [10] 3. herself and Eswaran in an image taken on 29 November 2018 at 13:20:08. [11] 4. Gurin as the person wearing a black Nike jumper and black pants in an image taken on 29 November 2018 at 14:34:35. [12] 5. Eswaran and Gurin walking in an image taken on 29 November 2018 at 15:21:42. [13] 1. On 30 August 2019 police obtained recordings of telephone conversations recorded between Gurin and Rapana, two of which are central to the present application. The first was at 9:13am on 23 November 2019, at which time Rapana told Gurin that she had been contacted by the police and had provided a statement to them. [14] The following conversation then took place: G: And what did you say? R: That you were standby. G: That what? R: That you were standby. G: I was what? R: You were watching out for police and fucking people while the boys were doing everything. G: Wait wait wait wait wait. So what you spoke to the police. You don't have to you could of just. What the fuck. R: Yeah I did. G: What. R: I didn't have a choice. Because there is evidence on our phone calls saying that I knew about that night. G: Yeah but you just fucked up my whole defence for my trial now. You understand that. R: I didn't fuck up shit. G: You told. You told the defence that I was there basically. R: They already knew you were there. G: It doesn't matter if they knew I was there. It's up to the Judge and the jury to convict me not the police. They are just using whatever you said to them against me. That's, you should not have told them anything. Even if they ask you questions you just say no comment no comment, I don't want to answer that question that's it. R: Well I didn't have a choice, did I? G: Yeah, yes you do. There's is a difference between. R: No I didn't. They called you and ask you to test, to testify, uh do a statement against me. No I had to put a statement in yes. If you end up going to trial then I'm going to have to be at the fucking court house, standing up there fighting against you. G: And you did that on purpose didn't you? R: Why? No. That's fucked. G: Then why, why did you, why did you talk to them then. R: I didn't have a choice that's what you're not listening to. Shantel has already put one in for the exact same thing and she's been done for this bullshit. She actually got done over it. G: I can't believe you man. So what instead of, instead of just saying no comment, I don't know what happened, this this that, you you you actually told the police I was there. R: Yeah well (inaudible). G: Huh? R: I said that you were standby but I didn't (inaudible). G: That's stupid. R: That the boys did everything. G: Everything that you said is going to be on paper now. R: You're going to get. G: There's a difference between. R: You're going to get everything that I said. G: Listen, listen. There's a difference between getting subpoena'd and. There's an actual thing you call when they bring you up to court. But whatever you said on the phone, they just tricked you into. Oh my God you don't realise yeah, That, now, I'm going to trial and I'm going to loose [sic] the trial and I'm going to be in for another year properly after that. Just cause of the, cos of that. R: That's the thing, the probably have a statement off Leilani, that's the thing you don't understand me. G: Yeah I know but you. R: Apparently. G: That what? R: No, the reason Surry Hills why called me is because you, MC and (inaudible) have been making threats towards me and two girls. G: Yeah and that's bullshit. I have better things to do than fucking. R: I don't know about you but MC and (inaudible). G: That's none of my business. R: You're lying or everyone is lying. G: So what you gave them a statement over the phone? R: No. G: Than what? R: I went to the police station. G: You fucked up big time. Straight out. R: (inaudible). Wait until your lawyer sees you, you'll see the statement. G: You realise you didn't have to do that yeah? R: No I didn't. G: Huh? R: No, I didn't realise that. I didn't really have a choice did I? G: Yeah you did. R: So you think if my phone was buzzing every fucking day about it. G: I can't believe you right, you just did, you're just pissing me off man. Like what the fuck. Did you just, did you go into actual court and talking to the fucking, like them putting you up in the stand, that's different, but what you did was get you on conversation talking about admitting that I was there. You just fucked up everything I was planning for trial. R: So what you told them you wasn't there? G: (inaudible) I hope you're happy, straight out. R: I'm really not. G: You did this on purpose. R: (inaudible) wait until your lawyer sees you, you'll see the statement. G: Straight out you're fucked. 1. That conversation was followed by a second which occurred at 9:38am [15] and included the following: [16] G: Alright so what exactly did they ask you? R: What happened before it. Like what caused it, what happened during and what happened after. G: And you answered every single question. R: Yeah. G: Like, do you understand that I'm going to trial. Yeah. And if I, I could have beat trial, I would walk away in four months from now. But they are going to use everything that you just said against me, and they are going to play back, and record it, to the jury. Do you understand that? R: It's not recorded. G: The police will, they will record it. R: It's not recorded. None of it's recorded. G: How do you know? R: Because I was there. … G: How do you, how do you know it's not recorded? R: Because I'm not stupid. (inaudible). It's not video recorded, it was all just written on the statement. G: Year a statement, a statement. Do you understand what that means? R: Yeah I'm not stupid. G: They are going to print it, they going to print out everything you said, word by word. Do you know that? R: Um, I'm not dumb, I've been to court before I've seen it for myself. G: Um, so basically you told them I was there, kicking back in that apartment. Is that what you told them? R: Kicking back in the apartment no. G: Is that what you told them before? R: Before it? G: I need to know. I need to know before I go to court. R: No I said before it we all had a fight and me and Shantol left. G: So you told them everything? R: And came back. Yeah. G: Do you understand you just fucked everything up for me. So I might end up doing another year if I lose trial because of what you said. Do you know that? R: Oh my God. G: Cos if Shantol made a statement against me, I could just say aw she's just mad, because, because, I don't know probably, she's lying or whatever. She's not close to me but you. The girlfriend at the time said that shit to the police, it will be harder for me to prove my innocence. Do you understand that? And if I end up doing more time. R: (inaudible) G: And I get convicted because of this, do you understand, it's cause of what you said. Everything that you just said they are going to use it against me. Didn't you think at the time that. I just need to know. R: You think I wanted to be involved with this shit? G: What is it? R: You think I wanted to be involved with this shit? G: Listen if you get subpoena'd. You are not gonna get done for this shit. If they go after you that's what it is, but you snitch on me so you can cover your own ass. R: No. G: There's a difference if you get subpoena'd. R: You're thinking I'm the only person who has put in a statement. G: Yeah but your one is the only one that is going to matter for me when it comes to prove my innocence. If I knew I would have pleaded guilty a long time ago if I knew that, If I knew that you were just going to turn around and tell the police everything. R: Fuck. G: Not one visit from you, not one letter from you, nothing. And you wonder why I never called you. You didn't give a fuck, dead set. R: I actually do but how the fuck can I. G: You never did. R: How can I? G: Nah you are full of shit. Dead set. You know you just fucked everything up for me yeah? For real. R: Don't. You don't realise that the first couple of months that I didn't sit around for nothing. I didn't put money in your account for nothing. G: Fuck what, how much did you put in my account? R: I don't give a fuck. G: Huh. R: Don't even try and say that I fucked everything cos I didn't. G: How much? Jack shit. R: How much? Enough, no, don't even try and say that I fucked shit cause you didn't give a fuck and you know I did. G: Hey. R: Everyone knows I did. The guy that I was seeing, the guy that I am seeing knows that I dated you. G: Everyone is going to know what you did. I can tell you that. And I'm going to get that statement that you said, They're going to give a copy of it soon. R: Yeah exactly and that's why I wanted you to call before your lawyer told you that a statement is coming in. G: You did this on purpose didn't ya. To get back at me yeah? R: No. G: Just admit it. R: Get back at you for what? G: Just admit it. Like. R: No that's not how I am. I'm not like Shantel. I don't speak for revenge. G: Yeah well I'll tell you the difference between you and Shantel, Shantel didn't actually say I was there but you did. Do you know that? R: See you're wrong. Do you know that? You're wrong. G: Well do (inaudible). What you did, that's a dog. That's what dogs do. Dead set, that's fucked up. Have a good life aye. R: Alright dude. G: Might as well go to court and testify. Go fuck yourself. Bye THE REASONS OF THE TRIAL JUDGE 1. The application for a separate trial which was made to the trial judge was based upon a series of factors. However, the application for leave to appeal to this Court against his Honour's determination was brought solely on the basis of the prejudice to the applicant which it is said will arise from the admission, in a joint trial of the applicant and Gurin, of the evidence of the two conversations between Gurin and Rapana. 2. In the course of his reasons, the trial judge made reference to the decision in R v Middis [17] in which Hunt J (as his Honour then was) set out the principles governing an application for a separate trial. The trial judge also noted the prima face position that where offenders are charged with the joint commission of a crime, there should be a joint trial. [18] 3. Having set out the Crown case and some of the evidence in support of it, [19] his Honour made reference to the fact that each of the applicant and Gurin had been interviewed by police. In that respect his Honour said: [20] There is an issue in relation to the admissibility of some of the content of each of those records of interview, but in any event, the content of the record of interview of one offender is not admissible against a co-offender. A direction of necessity will be given to the jury in relation to the admissibility of an offender's record of interview being only in respect of the offender participating in the interview. That is a common occurrence in joint criminal trials. 1. His Honour then made reference to the two conversations and said: [21] In addition, each of the two accused were [sic] recorded while in custody after arrest making phone calls from the prison to various persons. As I have previously indicated, some of the calls made by each of them contain what can be referred to as either admissions or implied admissions. Again, those admissions are only admissible in relation to the individual alleged offender participating the telephone call. There are no calls containing information, in my view, which would fall in the category of being made with authority, in which case it would be admissible against the co-offender if so made with the authority of that offender. The gaol calls are essentially in the same position as the record of interviews [sic]. A direction would need to be given to the jury as to the limited use that could be made of the content of the calls as being only in respect of the offender concerned in them. 1. His Honour then made reference to the evidence to be given at the trial by Tuhi-Burd and Rapana, [22] before saying: [23] Whatever be the result of any application to reject any of the telephone calls between Mr Gurin and others, or between [the applicant] and others, there will remain, in my view, a very strong Crown case in relation to each of the two offenders, who as I have said are charged with the same offences as co-offenders in what were common purpose robberies. I do not accept that a jury properly instructed will not be capable of isolating the evidence admissible in relation to one offender from the evidence admissible in relation to another offender. My experience over the years has been that juries give full weight to directions that they are given as to the use may be made of evidence that is before them. I do not accept that there is any prejudice in the sense of statements made by one offender being used adversely to the co-offender by the jury. Accordingly, the application for separate trials is, in each case, dismissed. THE GROUND OF APPEAL The trial judge erred in failing to order a separate trial from (the applicant's) co-accused because there was a positive injustice to the applicant as a result of the telephone calls between Gurin and Rapana SUBMISSIONS OF THE PARTIES Submissions of the applicant 1. Counsel for the applicant accepted that the determination of an application for a separate trial was a discretionary one. He also accepted that he was not able to identify any specific error within the individual categories described in House v The King. [24] However, counsel submitted that the refusal of the application by the trial judge was unreasonable or plainly unjust because his Honour had failed to properly exercise his discretion. Specifically, counsel submitted that the trial judge had failed to identify, or analyse, the prejudice to the applicant in the event of the admission of the evidence of the two conversations in a joint trial. It was submitted that the trial judge had simply stated, without more, that directions could be formulated to overcome any prejudice which might arise. 2. Counsel for the applicant further submitted that some of the content of the conversations went directly to Rapana's credibility and reliability, in circumstances where a challenge to her credibility and reliability was central to the applicant's defence. Counsel submitted that the positive injustice which would flow to the applicant in the event that he was not tried separately arose from the fact that Rapana was one of the two most important witnesses in the Crown case (the other being Tuhi-Burd), and that Rapana's credibility would be a central issue for the jury's determination. It was submitted that it would be "naturally open" to the jury to use the statements made by Gurin in the conversations as part of the process of determining Rapana's credibility and reliability, and that if the trials were not separated the jury would not be able to have regard to the conversations when determining those issues in the applicant's case. 3. This, it was submitted, would lead to the necessity for the jury to be directed that they could take into account what was said in the conversations when assessing Rapana's credibility and reliability in Gurin's case, but that they were to disregard the entirety of that evidence when assessing those matters in the applicant's case. It was submitted that this was "an intellectual task that would be beyond any jury", and that notwithstanding the conclusions of the trial judge, no direction could overcome the irremediable and positive injustice which would arise in that event. Submissions of the Crown 1. The Crown submitted that, generally speaking, the conversations involved Gurin making admissions to the offending in the context of remonstrating with Rapana for having made a statement to the police. The Crown emphasised that neither Gurin nor Rapana had made any reference to the alleged involvement of others at any point in the conversations. More specifically, the Crown emphasised that neither of them had even referred to the applicant, much less implicated him in the alleged offending in any way. It was submitted that the trial judge had conducted the necessary analysis, and that he had correctly concluded that no prejudice would flow to the applicant in the event of the admission of the conversations. The Crown submitted that the correctness of such a conclusion was fortified by the fact that in their respective interviews, neither Gurin nor the applicant had implicated the other in the alleged offending. 2. The Crown further submitted that in circumstances where there was, but for the two conversations, little difference in evidence relied upon by the Crown against the applicant and Gurin, the case was amenable to clear and simple directions being given to the jury that they must not have regard to the evidence of the conversations when considering the case against the applicant. In this regard, the Crown pointed to the fact that the evidence which was not admissible against the applicant was confined to the two conversations, and that such evidence was neither excessively lengthy nor complex. CONSIDERATION 1. Section 29 of the Criminal Procedure Act 1986 (NSW) (the CPA) confers a discretionary power to make an order for a separate trial and is in the following terms: When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances-- (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances-- (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice. 1. In Middis Hunt J (as his Honour then was) set out [25] a number of principles to be applied in determining whether to grant a separate trial, and concluded that such an order would be appropriate where: 1. the evidence against an applicant was significantly weaker than, and different to, that which was admissible against the other accused who is to be jointly tried with him; and 2. the evidence against the other accused contained material which was highly prejudicial to the applicant although not admissible against him; and 3. there was a real risk that the weaker Crown case against the applicant would be made immeasurably stronger by reason of the prejudicial material. 1. The correctness of those principles was subsequently confirmed by this Court in R v Baartman. [26] However, whilst such principles remain instructive, they do not amount to an exhaustive statement of the circumstances in which it may be appropriate to order a separate trial. So much is clear from the judgment of Nettle AJA (as his Honour then was) in R v Henry; R v Gravett; R v Swansson: [27] [12] The principles which govern an application for separate trials are tolerably clear: 1) First, there are strong reasons of policy and principle why persons charged with committing an offence jointly or charged as participants in different degrees in relation to the same offence should be tried together (Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 88-9). The concerns which support a joint trial in such circumstances include the trauma and inconvenience to witnesses which are involved in subjecting them to more than one trial; the increased time and expense involved in separate trials; and the highly desirable objective of avoiding inconsistent verdicts as between trials (R v Jones and Waghorn (1991) 55 A Crim R 159, 185). 2) Secondly, the accused bears the burden of establishing that there is a need for separate trials. Separate trials should not be ordered unless it is demonstrated that there is a real risk of positive injustice as a consequence of a joint trial (R v Bikic [2000] NSWSC 223; (2000) 112 A Crim R 163, 167 [22]-[23]). 3) Thirdly, while most joint trials may be productive of some degree of prejudice, prejudice of that sort will not be taken to amount to positive injustice unless it is of a kind which is not really amenable to nullification by judicial directions to the jury (R v Ditroia and Tucci [1981] Vic Rp 28; [1981] VR 247, R v Jones and Waghorn (1991) 55 A Crim R 159, 185). 4) Fourthly, one situation in which there may be grounds for separate trials is where the evidence admissible against one accused is significantly different from the evidence admissible against the other (R v Darby [1982] HCA 32; (1982) 148 CLR 668, 678). Another, is where there is a likelihood that some evidence which is led against one accused will be prejudicial to the other, albeit inadmissible against him or her. A separate trial may be also required in some cases where the evidence against one accused may in effect swamp the jury's consideration of the case against the other accused. The same may be true where the circumstances are such as to create a serious risk of an irrational finding of guilt by association (R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428, 431). 5) In R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported, 4); see also R v Baartman (Court of Criminal Appeal, 6 October 1994 unreported); R v Piller (1995) 86 A Crim R 249; R v Georgiou [1999] NSWCCA 125, [5]), Hunt CJ at CL identified three categories of case in which an order for separate trials may be warranted as follows: a) Where the evidence against an applicant is significantly weaker than and different to the evidence admissible against other accused. b) Where the evidence against a co-accused contains material which is highly prejudicial to the applicant although not admissible against him or her. c) Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably (in the sense of significantly albeit incomeasurably) stronger by reason of the prejudicial material. 6) It is recognised, however, that such guidelines as have been proffered cannot be exhaustive and that each case will depend upon its own facts. Each case involves a discretionary balancing exercise in which the concerns which support a joint trial must be weighed against the prejudices to the applicant (R v Alexander [2002] VSCA 183; (2002) 6 VR 53, 67 [31]). 1. In my view, having regard to all of these factors, there was no error in the exercise of discretion by the trial judge. I have come to this view for a number of reasons. 2. To begin with, and acknowledging that the principles formulated by Hunt J in Middis are not prescriptive, this is not a case where the evidence which is admissible against the applicant is significantly weaker than, and different to, that which is admissible against Gurin. The principal difference between the two cases, in terms of the evidence to be relied upon by the Crown, lies in the evidence of the two telephone conversations. Those conversations could not be regarded as positively prejudicial, or indeed prejudicial at all, to the applicant, for the simple reason that at no stage during either of the conversations did either Gurin or Rapana even mention the applicant, much less implicate him in any way in the alleged offending. It follows, again bearing in mind what Hunt J said in Middis, that there is no real risk that the Crown case against the applicant would be made immeasurably stronger by reason of the admission, in a joint trial with Gurin, of the evidence of the conversations. 3. I accept that the formation of the opinion which is referred to in s 29(3) of the CPA requires an analysis to be undertaken of the evidence and the nature and extent of any prejudice which might arise, as well as a consideration of whether the matter can be appropriately addressed by giving appropriate directions to the jury. [28] However, I am unable to accept the submission advanced on behalf of the applicant that the trial judge did not undertake that analysis. Whilst his Honour's reasons could perhaps have been more fulsome, the simple fact is that having considered the evidence, his Honour concluded that there would be no prejudice to the applicant in the event that the calls were admitted into evidence in a joint trial with Gurin. For the reasons I have already set out, there was no error in that conclusion. 4. Even if, as was recognised by Hunt J in Middis, some prejudice to an accused is inevitable in any joint trial, it is apparent that his Honour reached the conclusion that any such issue would be capable of being adequately addressed by the jury being directed in the terms that his Honour foreshadowed. That conclusion does not reflect error. There is nothing in the nature or content of the evidence of the conversations, nor is there any aspect of the case as a whole, which would render ineffective a direction of the kind that his Honour contemplated. On the contrary, the terms of any such direction would be straightforward, and of a kind invariably given by a trial judge in such circumstances. [29] Moreover, Courts have consistently proceeded on the basis that a jury will accept, and apply, directions given to them by the trial judge. [30] In all of these circumstances, I am unable to accept that the import of any such direction would, as was submitted on behalf of the applicant, be "beyond the intellectual capability" of the jury. 5. It may well be that the credibility of Rapana will be an important issue in the trial. However, as the Crown pointed out, the conversations are generally in the form of Gurin remonstrating with Rapana, and Rapana defending herself, for making a statement to police, in the course of which Gurin made a number of admissions. It is difficult to determine how these circumstances would, as was submitted by counsel for the applicant, bear on an assessment of Rapana's credit in the applicant's case. 6. In this regard, counsel for the applicant relied significantly on the decision of this Court in Hamalainen v R. [31] In that case, the first of two co-accused had made a series of admissions to a Crown witness (witness 297) which implicated the second accused. Although that evidence was not admissible against the second accused, the second accused had himself made admissions to another witness (witness 789). The evidence of witness 297 as to the admissions made by the first accused was consistent, in some respects, with that of witness 789 as to the admissions made by the second accused. In granting the second accused a separate trial, this Court concluded that there was, in those circumstances, a risk that the evidence of witness 297 (which was not admissible against the second accused) would be impermissibly used by the jury to bolster the credit of both witness 297 and witness 789. [32] 7. The facts which lead to this Court's decision in Hamalainen are immediately distinguishable from those in the present case in one fundamental and important respect. In Hamalainen, the admissions made by the first accused implicated the second accused. The present case is entirely different. Gurin, in making admissions to Rapana, did not implicate the applicant in any way at all. Given that, it is difficult to determine how any of his admissions could be impermissibly used by the jury to bolster the credit of Rapana. Contrary to the submission advanced by counsel for the applicant, this is not a case in which the jury will be called upon to make two assessments of Rapana's credit in the applicant's case, one using the evidence of Gurin's admissions and one not. For those reasons the decision in Hamalainen does not support the applicant's position. 8. It was for these reasons that I joined the making of the orders pronounced by this Court at the conclusion of the hearing. ********** Endnotes 1. Commencing at AB2. 2. Eswaran has pleaded guilty to his involvement in the offending and has been sentenced. 3. Commencing at AB28. 4. Commencing at [4]. 5. Commencing at AB32. 6. Commencing at [4]. 7. AB35 commencing at [3]. 8. Commencing at AB38. 9. At [5]. 10. At [6]. 11. At [7]. 12. At [8]. 13. At [9]. 14. AB19-20. 15. Commencing AB24. 16. AB24. 17. (Supreme Court (NSW) 27 March 1991, unreported) 18. At AB12-13. 19. AB13 – AB15. 20. AB15. 21. AB15-16. 22. At AB16. 23. At AB17-18. 24. (1936) 55 CLR 499; [1936] HCA 40 at 505. 25. At 4. 26. R v Baartman (Court of Criminal Appeal (NSW), 6 October 1994, unrep). 27. [2008] NSWCCA 248 at [12]. 28. DR v R [2019] NSWCCA 320 at [27] per Brereton JA, Hoeben CJ at CL and Cavanagh J agreeing. 29. Hough v R [2019] NSWCCA 293 at [31]. 30. See for example Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 (at [31]). 31. [2019] NSWCCA 276. 32. At [91]. Amendments 28 November 2024 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2024