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 1HIS 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. 2The 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. 3The 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 4Before 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. 5The 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. 6On 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. 7On 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. 8At the time, White was living in a de facto relationship with the accused Jessica Birkensleigh, in a cabin in a caravan park at Chinderah. Various activities were carried out on the day prior to the murder which I understand the Crown will argue showed planning for a confrontation, at least, with the deceased (for example, hiring a car after providing false identity information; purchase of plastic cable ties; and moving out of the cabin). 9It is unnecessary to go into all of the detail that is set out in the Crown Case Statement. Suffice to say that the deceased attended the cabin at Chinderah on 16 December 2008. White and one Ricky Lee Humphries, who has recently pleaded guilty to manslaughter, assaulted him. The deceased's hands were tied behind his back with black cable ties and tape was placed across his mouth and nose. 10White and Humphries then left the cabin and were driven away by a friend of White's, Stephen Orams, who had been waiting nearby at White's request. White told Orams, "I just bashed the cunt and I think he's dead". 11White then made various arrangements to get rid of the deceased's car which was parked outside the cabin, and to get rid of the body of the deceased. These arrangements included ringing the accused Todd Serone and asking, "Is the tow-truck free? I need you to pick up a car at the front of my unit". He told Serone to call after he had the car on the back of the tow truck. 12White then called Peter Elefsen and asked for his help for a few hours. He told Elefsen to obtain a jerry can with some fuel and to drive towards the Murwillumbah turn-off at Kyogle and to keep his eyes out for the silver Commodore station wagon that White, Humphries and Orams were in. He told Elefsen that he had a car on a trailer with an electrical or fuel problem and he wanted Elefsen to help get it started. 13White, Humphries and Orams were driving along in the silver Commodore towards Kyogle. White had a conversation with Humphries about places where a body could be disposed of so that it would not be found. Eventually they met up with Elefsen. At White's direction, Orams took Elefsen's car home and Elefsen joined White and Humphries in the silver Commodore. 14Meanwhile, following the telephone call from White, Serone contacted an associate, Alan Waters, who operated a tow-truck business. Waters picked up Serone and they went to the cabin at Chinderah where they found the deceased's car. They proceeded to drive through Murwillumbah and on towards Kyogle, presumably in accordance with directions that had been earlier given by White. 15After Orams had left them, White, Humphries and Elefsen drove off. During the journey, White said that he had "bashed this cunt and taken his car for payment. That's the car we're picking up". The silver Commodore and the tow truck passed each other when they were in the vicinity of Mount Burrell, about half way between Murwillumbah and Kyogle. At White's direction, the Commodore was turned around and followed the tow truck. White produced a handgun and fired it in the direction of the tow truck, which then pull over. White alighted from the Commodore and went and spoke with Serone. He then returned to the Commodore which drove away with the tow truck following. 16The two vehicles were driven to a remote bushland location. The deceased's car was taken off the tow truck. White and Serone removed packets of drugs which were secreted within the door cavities. White then threw fuel over the car and set it alight. Serone returned to the tow truck and said to Waters, "You're not going to believe it. They've just torched this thing". Waters expressed surprise and decided they should "get out of here". Waters drove the tow truck back to the road and proceeded in the direction of Murwillumbah. 17White, Humphries and Elefsen got back into the silver Commodore which was also then driven to Murwillumbah. They caught up to the tow truck when it was stopped at traffic lights. The three occupants of the Commodore alighted and stood in front of the tow truck. Serone got out of the tow truck and walked towards them. White approached him and they had a short conversation. White gave Serone some money. White returned to Humphries and Elefsen and told them to go with the tow truck driver. He told them, "Don't tell them who you are or where you live. I've told them you're from Melbourne". 18White had told Humphries and Elefsen that he planned to move to Western Australia and he wanted another hire car for that purpose. At his direction, Humphries and Elefsen travelled with Waters and Serone in the tow truck to Coolangatta where, ultimately, another Commodore, a blue sedan, was hired. Serone drove this car away with Humphries and Elefsen as passengers. 19Serone drove to White's cabin at Chinderah. He alighted and went into the cabin. He then returned to Humphries and Elefsen and said, "He's still there". All three men then went into the cabin. They saw the body lying on the floor, hands bound with the cable ties, and tape across the mouth and nose. Serone asked, "Did you boys knock him?" The three then participated in collecting the body and certain other incriminating items and loaded them into the back of the blue Commodore. 20Serone, Humphries and Elefsen drove away with the body in the boot. They drove towards the Mount Burrell area but stopped along the way. White came along in the silver Commodore and also stopped. White and Serone had a short conversation and while they did so, Humphries and Elefsen got into the silver Commodore. White returned to the silver Commodore and drove off with Serone following in the blue Commodore. 21The two cars stopped in close proximity to each other at an unspecified location. The body of the deceased was transferred from the blue Commodore to the silver Commodore. Serone then drove off on his own in the blue Commodore. White drove the silver Commodore away with Humphries and Elefsen as passengers and the body in the rear. 22White, Humphries and Elefsen then proceeded to a remote bushland location where the body of the deceased and other items were dumped. They left that area, but returned when White decided he would prefer the body to be dumped in a more remote location. Ultimately, the body was pushed over a cliff and various other incriminating items were set alight. 23The balance of the Crown Case Statement refers to various post-offence conduct of some of the accused and other participants. It includes that White was in possession of three blocks of "speed" taken from the deceased's car that he said he would cut with powder to produce five times the quantity. 24Ultimately, White and Birkensleigh were arrested near Bendigo, Victoria. There is evidence of considerable purchases made by the pair in the intervening period, mostly in false names, in the order of $157,000. 25Serone provided a statement to police on 24 December 2008. He said that he knew White and the deceased but had not seen them since 13 and 15 December 2008 respectively. He was interviewed on 24 February 2009. He said that he had been contacted by White who had asked that he move a vehicle that was parked at the cabin at Chinderah. He and Waters took the vehicle to the Nimbin/Kyogle area where they met White who fired a shot to get them to pull over. They then took the vehicle to a remote location and as soon as the vehicle was off the tow truck, they left due to the shot being fired earlier. He told police that at the time he gave his first statement he was frightened because he had learnt that the deceased had disappeared, his vehicle had been found burnt out and White was involved in some way. He was afraid of being bashed by members of the deceased's family for being involved in moving his car. 26Serone was arrested and charged on 9 March 2010. Basis for the application 27There are two bases for the application. First, there is material in the evidence that the Crown proposes to lead in the case concerning Serone that is prejudicial to White. Secondly, the manner in which Serone proposes to conduct his defence will involve prejudice to White. Individually, and collectively, these are said to amount to such prejudice that White cannot be fairly tried if tried jointly with Serone. 28Mr Bodor informed me, and Mr Walmsley confirmed, that the accused Serone's instructions to his legal representatives were to the effect that he was acting under duress when he did what the Crown alleges makes him an accessory after the fact. The threats said to amount to duress will be alleged to have emanated from the accused White. 29The Crown Prosecutor had previously notified the various defence representatives of portions of police interviews that were thought to be admissible against the interviewee/accused but which might also be thought to be prejudicial against one or the other co-accused. Falling into this category were some portions of the interview by police of the accused Serone on 24 February 2009. Mr Bodor referred to the following passages that he submitted involved prejudice to the trial of his client. 30At Q & A 24 of the interview, Serone told police that White "used to" have a substantial cocaine habit and that he was "with the Mick Gatto family in Melbourne". (There is also a reference to a family being a "bit of like mafia type thing and with the Rebels in Sydney", but this would appear to be a reference to the deceased's family - see Q & A 707; 907). 31At Q & A 37, Serone said that he had "been up to the Bandidos once or twice, a couple of parties and [White] was there". 32At Q & A 707 Serone provided a number of reasons why he was in fear of, inter alia, White and his response included reference to him being "with the Melbourne mafia". 33At Q & A 901 - 907, in response to questions about why he did not go to the police, Serone said that he was in fear of White. This was because, amongst other reasons, "he's Mick Gatto's nephew". He was told about White being Mick Gatto's nephew by White himself and also by the deceased. 34Mr Bodor also indicated that he had been told that it will be part of Serone's defence to allege that, at the time of a roadside meeting between the two Crown witnesses, Orams and Elefsen, with the accused White and Serone, White pulled Serone aside and indicated that Orams and Elefsen were two hit men from Melbourne. White subsequently gave orders to Serone to do certain things, threatening that he would be killed if he did not comply. Mr Bodor did not explicitly indicate when it was that this was alleged to have occurred, but I assume this was a reference to the conversation between White and Serone that took place near the traffic lights in Murwillumbah when the silver Commodore caught up to the tow truck. This was before Serone is alleged to have participated in the removal of the body and other items from White's cabin at Chinderah. The only manner in which this will be before the jury will be if the accused Serone gives evidence. Mr Walmsley indicated that he had merely apprised Mr Bodor of his instructions and there was no assurance one way or the other as to whether Mr Serone would be giving evidence. 35Mr Bodor also anticipated evidence that his client confessed to Serone to having killed the deceased. He was unable to identify the source of that evidence but the Crown Prosecutor was able to assist (see below). 36Finally, reference was made to another passage in the interview of Serone on 24 February 2009 (Q & A 777 - 785) in which he was asked about having previously referred to White and the deceased as having been involved in a business that made use of a campervan. He spoke of the pair going to Sydney, doing "deals" and then driving back in the campervan. Mr Bodor indicated that he had been given to understand by the Crown that there were other references to that subject matter and so conceded that there was less force in his submission on this aspect. 37Mr Bodor submitted that each of the matters, but more so collectively, would create irreparable prejudice; that is, prejudice that could not be overcome by any directions that could be given to the jury. With reference to well-known authorities, he characterised it as "positive injustice". Crown response 38In relation to the interview of 24 February 2009, Mr Walmsley confirmed that he wanted each of the impugned passages to remain. Accordingly, the Crown will lead all of that evidence in the case against Serone. 39Responding to the application, it was submitted by the Crown Prosecutor that there will be evidence that White and the deceased had arranged a drug deal on 16 December 2008 involving 3 pounds of amphetamine that was worth about $500,000 to White. There will be evidence of the pre-existing relationship between the pair involving drug dealing. It was indicated that it would be necessary to lead such evidence in order to place the critical events in their proper context. 40In the light of that material, it was submitted that it would be no surprise that White and the deceased had criminal connections, including to crime families and notorious individuals beyond the immediate area of Tweed Heads. The material to which Mr Bodor had referred added nothing to the level of prejudice inherent in the material that will be admitted in the case against White to which no objection is taken. 41As to the admission said to have been made by White to Serone, the Crown Prosecutor was able to indicate that the source was a prosecution witness, Alan Waters. It is the Crown case that Messrs Waters and Serone assisted in the disposal of the deceased's car. Mr Waters is expected to give evidence that about six weeks after the murder, Serone told him that White had told Serone that he had killed the deceased. Mr Waters is also expected to give evidence of Serone having admitted that he assisted in the disposal of the body. The Crown Prosecutor provided various references to evidence to this effect in an interview by police of Mr Waters on 9 March 2010. The evidence is relevant to the Crown's proof that Serone committed the acts on the afternoon and evening of 16 December 2008 that the Crown relies upon to establish that he was an accessory after the fact, and that he had knowledge of the murder at that time. The evidence is not admissible against White. 42The Crown Prosecutor submitted that the directions that would be given to the jury would serve to protect White from prejudice that might otherwise flow from the evidence admitted in the case against Serone. There would be a direction as to separate consideration of the cases concerning each accused; a direction that the evidence of Serone's police interview is not available for consideration in the case concerning White; and a direction as to the impermissible use of evidence of bad character of an accused, that is, that the jury must not engage in propensity reasoning. 43The Crown Prosecutor submitted that it was speculative and premature to take into account, in support of an application for a separate trial for White, that Serone had instructed his lawyers that he was acting under duress emanating from White. The police interview of Serone does not establish a reasonable possibility of duress and there would be no evidence of it before the jury unless and until Serone himself gave evidence. There is no guarantee that he will. The Crown Prosecutor, correctly with respect, allowed for the possibility that the application could be renewed if such an eventuality occurred. Decision 44The principles relating to the question of whether persons charged with involvement in the same crime should be tried jointly or separately were comprehensively considered in the judgment of Sheller JA (James J and Smart AJ agreeing) in Symss v R [2003] NSWCCA 77: [68] The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts. [69] In an unreported decision of 27 March 1991, in R v Middis 70412 of 1990, Hunt J said on the question of whether there should be separate trials: "Briefly, the relevant principles are that: 1. where the evidence against an applicant for a 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. The applicant must show that positive injustice would be caused to him in a joint trial." [70] A little later in his judgment at p5 Hunt J said: "I do not believe that the Court of Criminal Appeal in Oliver [(1984) 57 ALR 543] intended an applicant for a separate trial to demonstrate that positive injustice would more likely than not be caused by a joint trial (as it was suggested in argument); nor do I accept that a mere possibility of prejudice is sufficient (as it was also suggested in argument). In my view, what the Court of Criminal Appeal was saying was that, as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would - if it arises - result in positive injustice to him in a joint trial." [71] In Webb and Hay v The Queen (1994) 181 CLR 41 at 88-89 Toohey J, with whom Mason CJ and McHugh J agreed, said on the question of whether there should have been separate trials: "King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other.' R v Webb and Hay (1992) 59 SASR 563 at 585. What King CJ referred to as 'strong reasons of principle and policy' were discussed by his Honour in Reg v Collie (1991) 56 SASR 302 at 307-311. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others Reg v Demirok (1976) VR 244 at 254. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused Reg v Harbach (1973) 6 SASR 427 at 433. In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice, or put another way, whether improper prejudice has been created against an accused. In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed (1992) 59 SASR at 585: 'That is a commonplace feature of a joint trial and does not of itself render separate trials necessary.' Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred." [72] In R v Patsalis and Spathis (1999) 107 A Crim R 432 Kirby J refused an application for separate trials which was opposed not only by the Crown but also by the co-accused. In his reasons for judgment, which on appeal to the Court of Criminal Appeal (2001) NSWCCA 476 at 148, Heydon JA, as his Honour then was, described at 148 as a model of their kind, Kirby J said at 434: "There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered; R v Oliver (1984) 57 ALR 543." [73] Dealing with cut-throat defences Kirby J referred to the decision of Hunt CJ at CL in Ignjatic (1993) 68 A Crim R 333 and to Webb and Hay. In Ignjatic Hunt CJ at CL, after referring to earlier decisions, said at 339: "Obviously, there will be cases in which cut-throat defences are raised where it may be appropriate to order separate trials, but they would not in my view arise frequently. In a proper summing up, the jury will be directed separately in relation to the evidence admissible against each accused; Masters (1992) 26 NSWLR 450 at 455. The undoubted prejudice created by such an unsworn statement by a co-accused in a joint trial is usually considerably lessened in such circumstance, and thus it would not amount to the positive injustice required to warrant separate trials." (emphasis added) [74] In this Court in Fernando (1999) NSWCCA 66 the trial judge had refused to order separate trials. The Court identified the issue which gave rise to the application for separate trials in these words at para 220: "The tenor of Brendon Fernando's statements to the police was that while he was present during most of the events which occurred he was subject to the control of Vester Fernando, who was armed with a machete. Indeed, he stated to the police at the time when the victim was killed he was not present, having left the company of Vester Fernando and the victim shortly before the lethal event must have occurred. Thus, while his statements may not be considered as being a complete 'cut-throat' defence they are certainly exculpatory to a degree of his own participation and thoroughly implicate Vester Fernando." [75] Brendon Fernando did not give evidence so that his statements were not capable of being tested by either the Crown Prosecutor or Vester Fernando's counsel. Even so, the Court said at para 222: "However, his recorded admissions do, in the Court's view, fall within the type of evidence adverted to in the authorities and particularly by Toohey J in Webb and Hay which support the contention that there ought to have been a joint trial." [76] For present purposes I regard it as sufficient to emphasise the factors identified by King CJ in Collie and Webb and Hay and adopted by Toohey J in Webb and Hay in the High Court. There are important reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together, particularly where each seeks to cast the blame on the other. The dangers from the admission of evidence which would not have been admitted if the appellant had stood trial alone can be obviated by express and careful directions as were given in this trial. 45The prima facie position that persons charged with involvement in the same crime applies in the present case, notwithstanding that White is charged with murder, whereas Serone is charged with being an accessory after the fact. It was involvement in the same crime, but in different capacities. The events in question all took place on the one day; White's alleged crime was followed within hours by Serone's alleged crime. On the Crown case, Serone became involved at the behest of White. 46As to the evidence the Crown proposes to lead against Serone that will not be admissible (nor is sought to be admitted) in the case against White, I am satisfied that appropriate directions to the jury will be adequate to avoid the level of prejudice that would warrant separation of their trials. The type of directions that the Crown Prosecutor alluded to are relatively straightforward and, I am confident, easily understood by juries. My usual approach, and the approach I intend to adopt in this trial, is to summarise for the jury towards the end of my summing up the case that the Crown seeks to make against each accused, and to summarise the response by each individual accused to that case. This approach, coupled with the legal directions about separate consideration, et cetera, will ensure the jury appropriately considers the cases against each accused without the intrusion of material that is only admissible against another accused. 47This is not a case of a "cut throat" defence. That is usually where two (or more) persons are charged with committing a crime and each seeks exculpation by blaming the other. It is, however, a case in which, potentially, one accused will attempt to exculpate himself by blaming another; something akin to the situation in R v Fernando [1999] NSWCCA 66. The critical question is whether the possible attempt by Serone to do so will cause unacceptable prejudice, or positive injustice, in the trial of White. That is, in my view, a question that cannot now be answered. I accept the submission of the Crown Prosecutor that it would be a matter of speculation to answer the question in favour of granting the application. It is a matter that can only be assessed in the light of whatever evidence is placed before the jury. 48A further relevant factor identified by the Crown Prosecutor is that much of the same evidence would need to be adduced in the trial of White as would need to be adduced in the trial of Serone, and that each trial would not be substantially different in terms of the length of time they would take. This is a matter that is relevant to the overall interests of the administration of justice but it is far from a decisive matter. Conclusion 49The application by the accused White for a trial separate to the trial of the accused Serone is refused. ********** 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: 09 May 2012