R v Lockett [2013] NSWSC 859

Supreme Court New South Wales

Medium Neutral Citation: R v Lockett [2013] NSWSC 859 Hearing dates: 21 May 2013 Decision date: 22 May 2013 Before: Price J Decision: Order that Lockett be tried separately. Catchwords: Criminal law - applications for separate trials - real risk of positive injustice in joint trial. Cases Cited: Regina v Jon Leslie Baartman (unreported NSWCCA 6 October 1994) Regina v Georgiou [1999] NSWCCA 125 Regina v Stephen Frederick Middis (unreported NSWSC 27 March 1991) Regina v Pham [2004] NSWCCA 190 Webb v The Queen (1994) 181 CLR 41 Category: Procedural and other rulings Parties: Crown Samuel Lockett (Accused) Representation: Counsel: Solicitors: Ms A Holloway - Director of Public Prosecutions Mr A Jawas - Australian Criminal Law Specialist (Accused) File Number(s): 2010/384692

Judgment 1HIS HONOUR: The four accused, Richard Barnes, Carl Brown, Samuel Lockett, and Kirk Tuivaga, are each charged with the murder of Wallace Ruiz-Sanchez (the deceased) on 12 October 2010. Bradley Trawin-Hadfield has pleaded to manslaughter. 2An application has been made by Samuel Lockett that he be tried separately from Richard Barnes and Carl Brown. 3With no disrespect to the accused, I will for the sake of convenience refer to them by their surnames. An Outline of the Crown Case 4In September 2010 Brown attended the deceased's home and obtained a firearm from the deceased. Arrangements were made for Brown to pay for the firearm at a later undefined time. 5Over the next 3 weeks Brown did not pay any money to the deceased. As a result the deceased left a number of messages on Brown's phone asking for payment. 6On the day of the offence, the four accused and Trawin-Hadfield were together at 51 Marlborough St Smithfield, where the Crown alleges TUIVAGA and BROWN were living. 7At some stage during the day the four accused with Bradley Trawin-Hadfield drove to Jasmine Psaroudis' house at 44 Russell St Mt Pritchard, which is the house next door to the deceased's. She is Brown's sister. 8On the way to Mt Pritchard the accused stopped at Welwyn Place Canley Vale where a gun was obtained from Trevor Hair. 9The four accused with Bradley Trawin-Hadfield then made their way to Russell St, Mt Pritchard. 10At about 7.30pm the same day the deceased was at his home at 42 Russell St Mt Pritchard, with his de-facto, Rhiannon Knaggs, and her friend Ashley Riddell, when Brown approached the house together with the other three co-accused and Trawin-Hadfield. Brown called out to the deceased telling him to "come out the front and face him." 11When the deceased walked out onto the front porch he was confronted by the accused and Trawin-Hadfield. The deceased was punched to the head by one of the males before the entire group participated in the assault either by striking the deceased or providing encouragement to those that did. 12During this assault it is the Crown case that Lockett struck the deceased with the gun on the head. The gun discharged with the projectile hitting the deceased in the head and causing a fatal wound. 13All of the accused then ran to their car which was parked further down the road and drove away. Matters of Evidence 14The witnesses that the Crown intends to call include Rhiannon Knaggs, Ashley Riddell and Jasmine Psaroudis. 15In her witness statement, Ms Knaggs describes the "blond guy" hitting the deceased with what she thought was an aluminium pole. She then heard a bang and saw the deceased's head explode. 16Ashley Riddell in her witness statement says that she saw a male with sandy blond hair hit the deceased on the top of the head with what she thought was a pole, then heard a loud bang and saw that the deceased had been shot in the head. 17It is the Crown case that Lockett is the "blond guy" who was seen by Ms Knaggs and Ms Riddell to strike the deceased. 18Jasmine Psaroudis, in her witness statement describes seeing Lockett hitting the deceased over the head with "a thing" about 10-30cm long and made from wood, at least five times. She then recounts that she saw Lockett holding a thin silver metal tube about 30cm long with the wooden end in his hand. She says that Lockett hit the deceased with it about four times. She saw "the thing" in Lockett's hand bounce and move upwards and heard a loud bang. 19On 13 October 2010, Brown entered into an electronic record of interview (ERISP). His account included that he saw Lockett hit the deceased with the gun three times before it went off. He said that Lockett had seen him with the firearm before the date of the offence. As to the ownership of the gun that had been obtained from Hain, he said that it came to Hain from Lockett. 20Barnes entered into an electronic record of interview (ERISP) on 17 November 2010 during which he described the gun and drew a sketch of it which included a trigger. 21On 18 November 2010, Lockett entered into an electronic record of interview (ERISP) during which he said that either Barnes or Brown had the gun in their hands and that he went to take it off them and it went off. When Brown went into the house at Mt Pritchard, Lockett described Brown coming out with "some sort of metal pole" that did not look like a gun. His account included that he had no idea it was a gun. How the Crown Intends to Present its Case 22It is the Crown case that all of the accused were involved in a joint criminal enterprise to assault the deceased intending to cause grievous bodily harm. As against Lockett, the Crown also contends that he struck the accused with the gun, with the intention to inflict grievous bodily harm and it was the deliberate act of Lockett that caused the deceased's death. The Application for Separate Trials 23 Where the Crown case is that the accused were parties to a joint criminal enterprise, the starting point is that they should be tried jointly, Webb v The Queen (1994) 181 CLR 41. In Regina v Jon Leslie Baartman (unreported, NSWCCA 6 October 1994) the Court of Criminal Appeal approved the relevant principles governing the exercise of the discretion to grant a separate trial as enunciated by Hunt J in Regina v Stephen Frederick Middis (unreported, NSWSC 27 March 1991), an approval repeated in Regina v Georgiou [1999] NSWCCA 125: "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; and3. 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." 24In Regina v Pham [2004] NSWCCA 190 Adams J provides in the leading judgment some explanation of the principles enunciated in Middis: "39. Two phrases in this summary need some explanation. In ordinary speech, "immeasurably" usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant "significant, though incommensurable". The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to "positive injustice". Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence. 40. I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant's case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was such a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender's case is material. Indeed, the opposite would seem to be the case since, if the co-accused's case was weak, or weaker than the applicant's, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case." 25It follows that an applicant for a separate trial must demonstrate that there is a real risk that a positive injustice could be caused to him in a joint trial. 26Mr Smith submits that the combined effect of the ERISPs' of Brown and Barnes will be to introduce evidence that Lockett knew that the object with which he struck the deceased was a firearm. Mr Smith pointed out that the Crown witnesses did not describe a firearm, but referred to an aluminium pole or a pole with a small handle and a long end. Mr Smith contended that what was said by Brown and Barnes would go to the scope of the joint criminal enterprise, in particular as to the extent of violence that Lockett contemplated. 27Mr Smith pointed to the "colourful description" given by Brown in his ERISP particularly at Q & A 405 that he saw Lockett hit the deceased three times with the firearm. He submitted that Jasmine Psaroudis' account that Lockett hit the deceased multiple times would be supported by Brown's evidence which was inadmissible as against Lockett. 28Mr Crown contended that the evidence of Ms Psaroudis will have to be judged by where she was when she gave her account, whereas Ms Knaggs who saw Lockett strike the deceased once, was standing directly in front of the struggle. He argued that the sketches of the guns do not advance the Crown case at all. Mr Crown's submission was that the degree of prejudice did not warrant a separate trial. 29The admissions made by Barnes and Brown strengthen the Crown case against Lockett. They provide evidence that before Lockett went with the other accused to 42 Russell Street, he knew that there was a gun. Furthermore that Lockett knew that when he struck the deceased that he was striking him with a gun. This evidence is otherwise absent from the Crown case and is highly prejudicial to Lockett although not admissible against him. The Crown case is made significantly stronger by reason of this prejudicial material. 30Further prejudice arises from Brown's description of the manner in which and number of times he says that Lockett struck the deceased. His account supports the testimony of his sister, the only Crown witness who saw Lockett strike the deceased more than once. In a joint trial, it is likely that Brown will put to the jury that his sister's evidence should be accepted. I do not think that clear and emphatic directions that Brown's ERISP is only admissible against Brown and Barnes' ERISP is only admissible against Barnes will be sufficient to avoid a miscarriage of justice. 31The risk of a positive injustice is further enhanced by Senior Constable Mannah's evidence of the conversation that he had with Brown which includes "[m]y mate already had the thing on him. He hit him in the face with it and it just went off..." 32I conclude that Lockett has demonstrated that there is a real risk that a positive injustice will be caused to him in a joint trial with Barnes and Brown. I order that Lockett be tried separately.