Regina v SYMSS and MASSON [2000] NSWSC 1089

New South Wales Supreme Court

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

Crown - Respondent PARTIES : Shane Antoni SYMSS - Applicant Leonard James MASSON - Applicant JUDGMENT OF : Simpson J at 1

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

Crown - Mr T Thorpe COUNSEL : Shane Antoni Symss - Mr J Stratton Leonard James MASSON - Mr T Molomby Crown - Mr S E O'Connor SOLICITORS : 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.