Supreme Court New South Wales Medium Neutral Citation: Regina v JP [2013] NSWSC 1370 Hearing dates: 16 September 2013 Decision date: 19 September 2013 Jurisdiction: Common Law - Criminal Before: Hall J Decision: Order that the accused JP be tried separately from the accused JH Catchwords: CRIMINAL LAW - application for separate trial - a central issue in Crown case is the identity of the person who wielded a bottle used as a weapon against the deceased - Crown case against applicant is reasonably strong circumstantial case - evidence against co-accused inadmissible against applicant - inadmissible evidence is only evidence capable of being seen as directly bearing upon above issue - Crown case made stronger by reason of prejudicial inadmissible material - jury directions not sufficient to avoid miscarriage of justice - real risk of positive injustice in joint trial - separate trial ordered Legislation Cited: Criminal Procedure Act 1986 Cases Cited: Ignjatic v R (1993) 68 A Crim R 333 Madubuko v R [2011] NSWCCA 135 Pham [2004] NSWCCA 190 R v Baartman (NSWCCA, 6 October 1994, unreported) R v Domican (1989) 43 A Crim R 24 R v Fernando [1999] NSWCCA 66 R v Iskander [2011] NSWSC 1192 R v Lockett [2013] NSWSC 859 R v Middis (NSWSC, 27 March 1991, unreported) R v Patsalis (1999) 107 A Crim R 432 R v Taouk (NSWCCA, 17 December 1992, unreported) Webb & Hay v R (1994) 181 CLR 41 Category: Interlocutory applications Parties: Regina (Crown) JP (Applicant) Representation: Counsel: P Leask (Crown) PD Young SC (Applicant) Solicitors: Solicitor for Public Prosecutions (Crown) Lex Fori Lawyers (Applicant) File Number(s): 2011/235975 Judgment 1HIS HONOUR: The applicant, JP by Notice of Motion filed in Court on 10 September 2013, seeks an order for a separate trial from that of his co-accused, JH. The joint trial is presently listed for hearing on 23 September 2013. 2The application made for a separate trial on behalf of the applicant by Mr Young SC, was opposed by the Crown. 3Both accused stand charged with the offence of murder in relation to the death of Eden Delir on 5 November 2010, the offence allegedly occurring as a result of injuries inflicted on him on 30 October 2010. 4The Crown case is that there was a joint criminal enterprise involving the accused, JP and JH and four other young persons to assault and occasion upon the deceased grievous bodily harm. The assault was said to have been in the nature of a revenge attack upon the victim because he allegedly provided information to police concerning an alleged offence of robbery. 5As I understand the Crown's oral submission at T 16 September 2013, T 31:41-T 32:15, the Crown's primary case against the applicant is that he was the person who wielded a bottle smashing it on the head of the deceased, thereby intentionally inflicting head injuries to him which were causally related to his death. The Crown alternatively relies upon joint criminal enterprise liability against the applicant. Background 6In the Crown Case Statement (Exhibit "B" on the application) the background facts are set out at [1] to [12]. In brief, those facts allege that JH and the victim knew each other having attended the same high school. In February 2010, JH is alleged to have set up Eden Delir whereby associates of JH assaulted the deceased and stole his mobile phone. JH is alleged to have subsequently sold the victim's phone to one Chin for $300. 7As a result of police investigations Chin was charged with an offence of "Robbery in Company and Dealing with the Proceeds of Crime". 8In a statement of witness M reference was made by M to a conversation with JH about his suspected involvement in setting up the victim and JH wanting revenge for the victim "snitching". 9In a conversation in August 2010 between M and JH about his suspected involvement, JH is alleged to have said "I still haven't got him, I'm still going to get him back" (in reference to the robbery matter). 10Prior to 30 October 2010, the Crown case is that JH in a conversation with E, E said he was with the deceased to which JH is alleged to have said "Don't bring him near my house. I'll fucking bash the shit out of him when I see him". When asked why, JH is alleged to have replied "I just don't like him anymore". 11JH has been charged with an offence of "Robbery in Company" and "Deal with the Proceeds of Crime" in relation to this above incident. The Events of 30 October 2010 12In October 2010 a teenage girl organised a teenage Halloween party to be held in a private home in Bossley Park. Some guests were invited via the website, "Facebook". Messages were posted indicating that some people from the Campbelltown area were going to bring drugs and alcohol to the party. One guest on Facebook argued over this thinking that such people would cause trouble. An invited guest invited another group known in the area as "The Wakeley Boys" to the party in case the group from Campbelltown attended and caused trouble. 13The Crown case is that on 30 October 2010 the six accused persons were part of a group of young males who attended the party together that attacked the deceased at the Halloween party. 14On the Crown case, at about 8.15pm to 8.30pm a group of young males, all of Middle Eastern appearance, including the applicant and his co-accused, arrived at the party. The deceased had arrived at an earlier time. The applicant on the Crown case arrived at the party with the above group who introduced themselves as the "Wakeley Boys". 15The host of the party according to the Crown Case Statement asked the group of males why they were there. One member said they were present as some "Campbelltown guys wanna hit our mate" at [5]. After being told that those persons were not attending, the young males entered the house. They confronted guests asking individually if they were from Campbelltown. Their tone was allegedly aggressive and confrontational. One of the Wakeley group produced a knife towards one guest when asking if he was from Campbelltown. 16The Crown alleges that JH was one of that group and was yelling "Let's go have some fun". JH was allegedly wearing a white Adidas jumper and was carrying a stick. JP was alleged to have been wearing a black hooded jumper. One witness is alleged to have described the young person "SB" as being in possession of a metal pole at this time. 17At about 8.40pm a number of partygoers, including the victim and other young persons were out in the front of the premises where the party was held. The deceased was observed sitting on a swing chair located near the front door of the residence. A witness allegedly heard one in the group of young persons referred to above talking amongst themselves, making comments as to the presence of the deceased. Another young person allegedly said "Eden's up there do you wanna hit him?". Another young person is heard to say, "That's the guy who snitched". 18Very soon after these comments, the Crown case is that one of the young persons called out to the deceased saying "hey fatty" or similar words and called him over to them. The deceased starting walking towards the group. One of them took possession of the deceased's white cap. As one of the young persons stepped towards the deceased, the deceased was grabbed by another in the group of young persons. The Crown case is that after the abovementioned person removed the deceased's cap, another young person, the accused MG, is allegedly seen to have punched the deceased on the right hand side of his face with considerable ferocity, causing the deceased to fall to the ground. 19The deceased was then seen placing his hands over his head in a protective manner. All of the young persons then began kicking and punching him. The victim was heard saying "Stop, stop". While on the ground the Crown case alleges that the accused JP then hit the deceased over the head with a wine bottle, causing the bottle to shatter. 20The Crown alleges that at this time all the young persons had surrounded the deceased who was on the ground and they continued to assault him by punching and kicking him in the upper body and head area. The Crown case alleges that the young person SB at this time had struck the deceased in the head with what has been described as a metal pole, whilst the deceased was on the ground. The Crown case is that SB has been identified during the course of identification parades conducted in the course of investigations. 21The deceased managed to get to his feet with one of the young persons again attempting to strike him with the metal bar while he was running away from the location. A witness prevented the deceased from being further assaulted by any of the young persons by the witness punching a young person. 22The deceased ran west along Restwell Road and witnesses described him as being chased by two young persons, the Crown alleging that one of them has been identified as the accused AE wearing a blue T-shirt. Once witnesses started chasing after the deceased, the young person AE allegedly stopped chasing him and returned to the location of the other young persons. 23The remainder of the group then started looking around the front of the property, allegedly frantically searching for a knife that one of them had dropped during the assault. All of the young persons ran away towards a vehicle described as a red station wagon. This was subsequently located by police during the early morning and was seized and examined. 24Prior to police attending the party, it is alleged that the young persons involved in the assault returned to the location about an hour after the assault upon the deceased. The Crown alleges that the young persons were seen to be standing at the back of the house creating problems for people passing by. 25During this time, the accused JP had sought assistance from some witnesses in relation to a cut that he had on his hand. The Crown case alleges that the cut resulted from the accused JP hitting the deceased over the head with the wine bottle. The Crown case further is that the cut had not been observed by any witness prior to the assault. 26At about 10.30pm the deceased was found lying unconscious down the side of a house in Restwell Road Bossley Park by the occupants of the house. The deceased was subsequently taken to hospital and underwent emergency surgery for head injuries. 27An examination of the crime scene located a knife that had been identified by a witnesses as being a knife that had been produced towards a guest at the party. Broken glass and the remains of a "Cabernet Sauvignon" bottle were also found in the same area. That is the bottle the Crown alleges was used by the accused JP to hit the deceased over the head. 28The deceased remained in a coma until 5 November 2010 when he was pronounced deceased as a result of the head injuries sustained on 30 October 2010. 29The critical issue on the present application concerns the strength of the Crown case against the applicant and the issue of the prejudicial effect of the evidence to be led in the Crown case against the applicant's co-accused, JH. 30Before turning to the parties' submissions, I set out below accounts provided by Crown witnesses in their witness statements: (i) Ms Petrevic 31Ms Petrevic was 14 years of age at the date of her statement dated 5 November 2010. She stated that she saw a large number of people at the party who she identified by name: at [9]. 32She said that she went out to the front lawn of the house and saw "a guy stand up ... this guy was holding a bottle in his hand ... the guy with the bottle was about 175cm, overweight and had a shaved head with small hairs growing back. This guy was wearing a hoodie and pants ...": at [12]. 33Ms Petrevic continued: "13 The guy with the bottle brought it back over his shoulder and smashed it over the head of a guy that was sitting on the brick wall ..." (ii) Mr Al-Haddad Mr Al-Haddad was aged 15 years at the date of his statement. He stated that he saw a male who he remembered from his primary school and noted that he was in a few of his classes. He said that he recognised him as he got closer to him. He knew him only by his first name "Jonathon". He said in his statement: "9 I watched Jonathon as he came through the house and out into the yard where I was. I saw him pick up a bottle from the ground which was near the door. The bottle was the size of a champagne bottle and was round like one. It didn't have lid on it and looked empty. When he picked it up it looked like he was trying to hide it by holding it behind his back. I can't remember what hand he held the bottle with. Jonathon walked through the house and back to the front of his group. 10 After I saw this I thought that something was going to happen so I decided to leave the party ..." 34The witness said that the next day he found "Jonathon's profile" on Facebook as he was listed on his account. He recognised his profile "to be the person I saw picking up the bottle from the yard the night before" at [13]. 35The Crown referred to Mr Al-Haddad as having seen "the applicant picking up a bottle inside the house and moves out of the building with it": Crown Submissions 16 September 2013 at T 31:15-20 and T 24:45-50. (iii) Mr Moroney 36Mr Moroney was 15 years of age at the date of his statement. He stated in his first statement dated 20 December 2010 at [14] that he saw the victim at the party. He said at [15] that he heard a bottle smash. The sound came from the front of the house - he said he saw about 15 boys standing over Eden (the victim) - punching and kicking him on the ground. 37In his second statement dated 21 December 2010 he said he remembered, "seeing the group of about 10 of the Assyrian boys that I had seen before. I saw one of them had a cut on his hand. I think it was the right hand and it had a fair bit of blood on it. I recognised this person as a guy I know as 'Jonny'. Jonny came up to Luke and I heard him say 'can you give me some water please' to which Luke agreed": at [6]. 38The witness said that a friend of his used to go out with "Jonny" who used to go to St John's Park High School. Before the party he said he saw him ("Jonny") on Facebook at some time. He added "I'm sure I have seen Jonny in person at some time before the party but I can't remember whether that was at another party or around the area": at [7]. 39He added "I know that when I saw him on the night of the party I recognised him and I knew his name was 'Jonny'": at [7]. (iv) Mr Johns 40Mr Johns was 15 years of age at the date of his statement. He said that he heard somebody call out the name of the victim and heard the group swearing at him. He said he wasn't really paying attention at that time but was watching the group as he was walking. He said he saw one of the guys from the group hit the victim they called out to over the head with a glass bottle. The person that hit him was wearing mostly black. He could not remember exactly what he was wearing and he could not describe him as he had his back to him. He said that the rest of the group then started to try and punch the victim and he saw another of the group hit the victim with a pole which was silver and looked like the bar from a dumbbell without the weights. He could not remember what the person with the pole looked like: at [7]-[12]. (v) Mr Lopez 41Mr Lopez was aged 17 years at the date of his statement. He said that when at the party he heard loud voices and swearing. The voices sounded angry. He said he saw about eight persons standing out the front of the house, they were standing around another person and they looked Middle Eastern in appearance. 42He said that one of the group picked up a bottle, he said he thought it was on the ground, and he hit the victim they were standing around on the side of his face. He did not know what the colour of the bottle was. He thought he hit the victim on the right side of his face. He could not remember what the person who hit the victim looked liked. He only saw him from behind. He saw that the victim had got hit and ran away holding his face. The group chased him: at [11]. (vi) Mr Merdanic 43Mr Merdanic was aged 15 years at the date of his second statement dated 22 May 2011. He said that on arrival he saw a male who he recognised in photograph No 10 holding a pipe similar to a trolley handle. The male was in a group of about six to eight of his friends. 44He recalled one of the males in the group had something in his hand "like a weapon of some sort", but he could not remember what it was or which person in the group had it. People told them to calm down and the guy in No 10 photograph and the rest of the group went and sat down at the back area of the house. 45The party went on and as he stated in his first statement, he heard a bottle smash from out the front. He went out the front and saw people running but because it was dark he could only see shadows. He could not see who was out in the front area: at [6]. (vii) Mr Eishou 46Mr Eishou, who was aged 17 years at the date of his statement dated 9 February 2011, stated that he saw the victim being struck with a closed fist. This was by a second male from the group of four males who had approached the victim. The punch connected with the right side of the victim's head who fell slightly to his left and placed his hands over his head. 47He said the remaining people standing around him began to kick and punch him. It looked as though all the kicks and punches were hitting the victim in the head. He said he heard a bottle smash. He did not see it smash but he heard it. If the bottle had come from the right hand side of the victim he would have been able to see it happen because he had a clear view. He said it happened so quickly. He saw the victim turn to his left and begin to run away from the group. He thought that two or three people from the group that attacked him chased after the victim up the hill. (viii) Mr Zandarin 48Mr Zandarin was aged 17 years at the date of his statement dated 25 February 2011. He gave an account of a male calling out to the victim. This person did not look as dark as some of the others. His hair was short and he looked clean cut down the sides and he thought he had a hat on. He asked the victim was he "Eden", waving to him to come over. The male starting walking towards the victim. Mr Zandarin witnessing these events thought that something bad was going to happen and he called out to the victim. As he stepped forward a male grabbed him across the stomach. He recognised him as a person who had been at his school. He said he was "an Argentinean kid" with light coloured hair and he told him not to get involved. 49Suddenly a male came running from next to the truck. He did not see where he came from and he ran straight at the victim and punched him to the right side of his face. 50Two more males came from near the side of the victim. They were both chubby and he gave a description of them. They went over to the victim whilst he was on the ground and started kicking him. The first of the two, who had a red shirt, was stomping and kicking him in the back and at the back of the head. The other male was kicking and stomping the victim around his hips and legs. 51He recalled the victim trying to get up. He rolled over to his side and was still trying to get up and as he was doing so he saw a bottle that looked like a green glass "V" drink bottle being swung at the victim's head. From where he was standing it looked like it smashed on the left side of the victim's face. The males kept kicking him. 52The victim managed to get off of the ground and started running. There was someone chasing him. That person was wearing a white jumper. He looked Arabic and had darker skin than the others. (ix) Mr Daccour 53Mr Daccour was aged 17 years at the date of his statement, 12 June 2012 and he said that he was at the party. At about 8.30pm four or five young males turned up who "looked like troublemakers" (at [7]). He said they were all 15 or 16 years of age and looked Assyrian. One was wearing a white jumper and black trackies and had a mullet cut (long hair at the back and in the middle of his head). He was carrying a metal pole about 50 cm long. It was solid. 54He later saw the male in the white jumper still have the pole and another male in the group was now carrying a champagne bottle. The victim was on the front grassed area. He heard one of the group say "Eden's up there, do you wanna hit him", and another said "that's the guy that snitched" and another said "we're gonna hit this guy": at [9]. 55He said that the male with the white jumper who had the pole hit the deceased over the head with the pole. The male who had the champagne bottle smashed it over the victim's head and caused him to fall down. Another male in the group punched the victim. Somehow the victim was able to get up and run up the street. 56In his second statement dated 12 June 2011, Mr Daccour stated that he recalled that after the victim was attacked and the group was running off, he saw a male holding his finger and it was bleeding. He could not remember if he saw him with any weapons or anything. He remembered that while this male was in the backyard with the rest of the group, other people from the group were calling him "Johnny". Mr Daccour explained that he did not mention this in his first statement because he did not remember that. When he saw the photo to which he referred, it jogged his memory straight away: at [7]. Submissions 57Mr Young SC submitted that a joint trial would create a positive injustice for the applicant. Senior Counsel's submissions focussed attention upon the following: (1) The Crown submission asserting that the Crown case is a strong one is not an adequate reflection of the evidence. In particular it was submitted the Crown cannot establish that the applicant struck the deceased with a bottle. At its highest, it was submitted, the Crown has a circumstantial case of the applicant's involvement in a fight involving the deceased. (2) Evidence which the Crown intends to adduce in the trial of the applicant's co-accused, JH, would give rise to a positive injustice to JP, and trial directions could not cure the prejudice. In that respect it was submitted: "In a trial involving two co-accused, where one makes no admissions and the other does while at the same time graphically implicating the other, the prejudice is even greater, and it is submitted incurable by direction." Applicant's written submissions at [17]. 58Mr Young relied upon his written submissions dated 11 September 2013, supplemented by oral submissions made on 16 September 2013. 59The learned Crown Prosecutor relied upon written submissions by him dated 11 September 2013, supplemented by oral submissions also made on 16 September 2013. 60On 16 September 2013, the Crown tendered a folder containing copies of a large number of witness statements (Exhibit "A"). 61I will refer to certain of those statements below. At this point I note in general terms that various of the statements are directed to establishing the following matters: (i) The applicant's presence, along with a number of associates, at the premises where the Halloween party was being held; (ii) The fact of the applicant's participation in the assault upon the victim; (iii) The identity of the person responsible for wielding a bottle used as a weapon and smashed upon the head of the victim. 62It is the Crown's case that the applicant was the person who wielded the bottle striking the victim with it whereby serious injury was inflicted upon the victim. That will be a central issue in the trial. 63Whilst Mr Young conceded that the evidence in the Crown case would establish the applicant's presence at the relevant premises at the time of the assault, and that it would establish his association with others forming part of the group referred to as the "Wakeley boys", the applicant's participation in the assault is disputed. 64The Crown case against the applicant is essentially a circumstantial evidence case. The Crown has contended that it has a strong case in establishing the applicant as the person who struck the victim with the bottle. To substantiate that contention the Crown relies upon the totality of the evidence, in particular the evidence to be given by a number of witnesses who saw the assault and others who, not seeing the assault, heard the bottle smashing. Additionally, the Crown relies upon evidence to establish that, subsequent to the assault, the applicant had a wound to his right hand which was bleeding. 65The Crown proposes to call evidence in the joint trial involving the applicant's co-accused, JH, from a Ms Khokaz. 66On 5 November 2010, Ms Khokaz met with the accused JH. The conversation was recorded by Khokaz on her mobile phone. The contents of that conversation appear in her witness statement dated 6 November 2010. 67In Mr Young's written submissions it was noted that the material complained of appears at page 4, paragraph 15 onwards. Amongst other things, it is said to represent an eyewitness account by the co-accused that: "... the other mate Jonny he was the one with the champagne bottle" (p 7) "... then Jonny took his hat and he goes on nice hat took it off him ..." (p 8) "... one mate with the champagne, Jonny, Jonny's the one that hit it over his head .." (p 8) "... then he dropped and everyone started kicking him ..." (p 8). 68It was then noted that Ms Khokaz asked the accused JH: "... Now they're gonna have to live with knowing they killed someone. Do they know?" (p 9) The accused JH replied: "yeah I told them." (p 9) Ms Khokaz asked: "What did they say" (p 9) 69The accused JH replied: "they just started crying ..." (p 9) 70Mr Young referred in his written submissions to the well-accepted principles that apply to an application by a co-accused including that: (i) where co-accused are said to have been acting in a joint criminal enterprise, a joint trial is the norm; additionally that the accused bears the onus of establishing otherwise. (ii) that the applicant must demonstrate that there is a real risk that a positive injustice would be caused to him as a consequence of a joint trial: Patsalis (1999) 107 A Crim R 432 at [6]-[13]. 71It was submitted that such positive injustice can be demonstrated where prejudicial and inadmissible material in the trial of an accused could be likely to turn a potential acquittal into a conviction: Pham [2004] NSWCCA 190 at [39], Adams J; Madubuko v R [2011] NSWCCA 135 at [32] per Hodgson JA. 72Mr Young submitted that the second and third propositions in Middis (NSWSC, 27 March 1991, unreported) are applicable in that the applicant can demonstrate the evidence against the accused contains material which is highly prejudicial to him although not admissible against him, and that there is a real risk that a weaker Crown case against him will be made immeasurably stronger by reason of prejudicial material. 73Although, Mr Young noted that it is to be assumed that juries follow directions aimed at curing the prejudice, it was observed in Taouk (NSWCCA, 17 December 1992, unreported), "... the reality is that the task was an impossible one". It was submitted that this is such a case. 74In his oral submission, Mr Young took issue with the Crown's statement that identification of the applicant is capable of being established by indirect powerful evidence. In that respect he observed; (i) That of the witnesses who saw the bottle used during the course of the struggle, some of whom knew the applicant, none of them identified the accused as being the person who wielded the bottle (the witnesses in this respect were said to be Larissa Petrovic, Ben Johns, Cristel Oweis, Jonathan Lopez, Elias Daccour and Jason Zandarin). (ii) On the other hand the witnesses did nominate in various way seeing the applicant present at the party and doing various things throughout the course of the evening. However, none of them, it was submitted, lived up to what the Crown had said in its submissions. 75The evidence, it was submitted, does not permit the Court to be satisfied beyond reasonable doubt that the applicant was the person who used the bottle. It was contended that this was a particularly significant fact because it is the basis of the application. 76Additionally, there was no evidence, including no DNA expert evidence, establishing any link between the applicant and the bottle. 77The accounts given by the principal witnesses dealing with the bottle, include references by them of seeing the applicant picking up the bottle inside the house and moving out of the building with it. 78Additionally, it was conceded that other witnesses gave accounts of seeing blood on the applicant's hand at a later stage. 79The Crown's submission was that the evidence of the witnesses had to be taken in its totality. When all the evidence was considered it represented or constituted a strong Crown case. 80I will refer in greater detail to the Crown's submissions below in the consideration of the application. 81In its written submissions the Crown referred to the relevant principles on a separate trial application and acknowledged that positive injustice can be demonstrated where prejudicial and inadmissible material against an accused would be likely to turn a potential acquittal into a conviction. Consideration 82By s 21(2)(b) of the Criminal Procedure Act 1986 the Court has the power to order a separate trial. 83The general principles to be applied in determining an application for a separate trial are well established. In R v Middis, supra, Hunt J (as his Honour then was) said: "Briefly, the relevant principles are that: (i) Where the evidence against an applicant for a separate trial is significantly weaker and different to that admissible against another or the other accused to be jointly tried with him, and (ii) Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and (iii) 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 will be caused to him in a joint trial." 84See subsequent decisions in R v Baartman (NSWCCA, 6 October 1994, unreported) and R v Pham at [48]. 85In Pham, Adams J (with whom Spigelman CJ and Hulme J agreed) said, in relation to the principles set out by Hunt J 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 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." 86The observations of Adams J in Pham as set out above have subsequently been approved in Madubuko v R [2011] NSWCCA 135, Hodgson JA (with whom Hoeben J (as his Honour then was) and Grove AJ agreed). 87The Crown in the present proceedings alleges that the applicant and his co-accused were parties to a joint criminal enterprise. The Crown case against the applicant is a circumstantial one. That said, however, the Crown has submitted that it has a strong case in establishing the applicant as having been the person who assaulted the deceased by smashing a wine bottle on the deceased's head, the deceased having been assaulted by hitting and kicking before and after that incident by other members of the group which the Crown alleges jointly set upon the victim. 88As has been observed by the Crown, where the Crown case is that the accused persons were parties to a joint enterprise, the starting point is a joint trial: Webb & Hay (1994) 181 CLR 41 at 88-89 per Toohey J; Domican (1989) 43 A Crim R 24 at 26. 89The Crown has contended that this rule applies particularly in cases where co-accused place the blame on each other: Webb & Hay, supra; Ignjatic (1993) 68 A Crim R 333 at 339; Fernando [1999] NSWCCA 66 at [203]. 90In the present applicant the accused bears the onus of establishing the reasons for an order granting a separate trial and in that respect demonstrate that there is a real risk that positive injustice will be caused to him as a consequence of a joint trial. 91In the present case it is difficult to determine the relative strengths and weaknesses of the Crown case against the applicant and his co-accused JH. On a question such as that in R v Iskander [2011] NSWSC 1192 Davies J observed: "32 If the first principle in Middis has been modified in Pham so that the issue is not, in the first place, a consideration of the relative weakness and strength of the Applicant and the co-accused's case respectively, the enquiry is a similar one - whether there will be a positive injustice to the Applicant by the evidence being likely to turn a potential acquittal into a conviction: Pham at [39]. But as Adams J goes on to point out, if the likelihood is real as distinct from inconsequential then there will be a positive injustice to the Applicant." 92A little later, Davies J observed: "35 Two things can be said about that. (Referring to directions given by trial judges). First, although the assumption is as the High Court set out, there is the sort of exception to that assumption contained in what Hunt J said in Middis and in the various cases that have followed it. The prejudice may be such that directions are unlikely to overcome the prejudice, and hence, the discretion in appropriate cases to order a separate trial. So, for example in R v Mahmoude Chami [2002] NSWCCA 136 Ipp AJA (with who Bell J agreed) accepted at [19]-[20] that despite careful and explicit directions it might be difficult for a jury to remain entirely objective. 36 Secondly, and particularly in this case where the Crown relies on joint criminal enterprise, it would be extremely difficult for the jury to understand that admissions made by one participant in the joint criminal enterprise had to be entirely put out of their collective minds when considering the evidence against the other participant in the same enterprise in circumstances where they considered that that evidence about the admissions was reliable. They could readily conclude that Andrew always had the requisite intention. Since the case is put forward as a joint criminal enterprise it would be difficult for the jury not to conclude, on the basis of that evidence, that the Applicant also had the requisite intention at the earlier time. 93The Crown, with respect, properly stated in its written submissions: 15. it is submitted that the principle in operation in the application is that which turns on identifying the vice said to be present in the trial with [JH], and then in order to succeed, demonstration to the requisite degree that measures generally employed in every criminal trial, namely jury directions, would fail in their object of achieving a fair trial, and would operate to deprive him of an acquittal that was fairly open, or worse arguably inevitable." 94Later, the Crown correctly observed: "18 ... a weak case bolstered by impermissible evidence that changes to a degree amounting to a real possibility of an acquittal into a guilty verdict is the scenario that offends settled notions of justice. It is however not the position in the case involving the applicant." 95The Crown submissions at [19] and [20] address the relative strength of the Crown case. The essential facts which it is said the Crown must establish were: (i) Association with the co-accused. (ii) Presence at the party in circumstances characterising the relevant association; (iii) Presence at the site of the assault; (iv) Participation either directly, or as a product of his criminal complicity, in the assault on the deceased; (v) Participation that contributed, and then only by an act or acts that contributed in a way deserving of culpability, to death. (vi) Intention (plainly no allegation of intent to kill arises in this case against any co-accused). 96The following matters were identified as supporting the strength of the Crown case in its written submissions: (i) The applicant's blood was located on the victim's property. (ii) That property was located in a vehicle in which the applicant will be proven to have occupied with the co-accused. (iii) The blood of the applicant was as a result of a fresh injury occasioned to him at about the time of the assault. (iv) Witnesses positively identify the applicant at the party, and during the assault, because they either recognised him, identified him or described him. (v) He is witnessed assaulting the victim with a bottle. (vi) The bottle was later located at the scene. It was broken because it was used to assault the victim. (vii) The broken bottle accounts for the cut and bleed of the applicant. (viii) The blood on the victim's cap brings the applicant and the victim into material proximity with each other. 97In relation to (v) above, it was acknowledged that this sub-para is to be regarded as a statement in the nature of a submission. The Crown contends that such a conclusion was one that can be reached upon the totality of the evidence in the Crown case. 98In relation to the inadmissible evidence, namely the account given by the accused JH to Ms Khokaz, the Crown submitted that the jury will be circumspect by reason of intuition and expressly by direction as to the statement of JH in which he implicates the applicant. However, the Crown submitted there is sound reason to find that the direction instructing of its inadmissible quality as against the applicant stands no real risk of being ignored or misunderstood. 99The Crown then set out the following matters as providing support for its submissions at [22]. They included: (i) That JH told Khokaz a lie, namely that he was not relevantly present when his associates attacked the victim. The lie is easily demonstrated by reason of the inherent internal inconsistency of his statement to the witness. (ii) His conduct in implicating others in the assault, and excluding himself from any involvement. This was common in criminal proceedings. The cautionary directions delivered to juries warning of such statements for obvious reasons and going to its reliability, will act to reduce the weight of the statement in its content overall when it comes to be considered as self-serving to JH's advantage or otherwise. This serves to reduce the possibility that a jury will use the evidence as indicative of any relevant question of fact affecting any other party. JH's statement was said to be a classic "mixed statement" in the sense that it was partly inculpatory and partly exculpatory. (iii) That the fact that the co-accused JH might be said to nominate the applicant as the aggressor with the bottle is an insignificant facto "... The jury will find as a fact that evidence supporting the applicant's use of a bottle is to be found in a reliable and independent body of evidence, namely, the forensic and DNA evidence connecting him to the bottle (there being no other bottle), it being identified directly or by scientific means, in a strong circumstantial way." (iv) That the conversation was tape-recorded does not provide any comfort to the applicant. First, the witness could give evidence of the conversation from her recollection, but, it being recorded, does not change its evidentiary quality. The fact that it is recorded allows evidence to be given of its reliability. This it was said in turn serves to advance the submission that without doubt it was a conversation which could not be relied upon insofar as JH "shifts blame". 100In relation to (iii) above, I note that there is no DNA or scientific evidence that links the applicant to the bottle. 101In balancing the factors in favour of a joint trial against the prejudice to an accused, it is necessary to consider the strength of the Crown case against the applicant. The nature of the prejudicial material. The fact that such material is inadmissible in the trial of the applicant. 102The consideration of those matters are to be assessed with a view to determining whether the inadmissible, prejudicial material would be likely to turn a potential acquittal into a conviction. If it would, then it would amount to a positive injustice. The likelihood of the inadmissible material having that effect is to be assessed having regard to both its inherent nature or character and the context of the Crown case. The inadmissible evidence of Ms Khokaz plainly would have a prejudicial effect in that it directly bears upon the applicant as the person who assaulted the victim with a bottle. 103As to the issue of context, the Crown case against the applicant - including in particular the evidence as to his association with the group (the Wakeley Boys) at the crime scene, the evidence of him picking up a bottle off the ground and as to his having a cut and bleeding hand after the attack on the victim - indicates that the Crown circumstantial case could not be considered to be a weak one. In my assessment, the Crown case is a reasonably strong circumstantial case. 104The critical question, however, is whether appropriate and cautious trial directions could ensure that the inadmissible evidence will not influence the jury in the fair and proper disposition of the trial. 105In some cases the nature of the inadmissible evidence admitted in a joint trial, not admissible against one accused, may of its intrinsic nature and having regard to the particular line or ground of defence, be such that trial directions will not be sufficient to eradicate the prejudice. See, for example, R v Taouk, supra; R v Lockett [2013] NSWSC 859 and R v Baartman, supra. 106If the Crown had admissible evidence that was capable of directly identifying the applicant as the attacker who smashed the bottle on the victim's head, then I would not consider that the prejudicial effect of the inadmissible evidence proposed to be led by the Crown would necessarily be incapable of being dealt with by trial directions. That not being the case, the question is whether the Crown's circumstantial case is sufficiently strong to support the same conclusion, namely, that cautious and firm trial directions will be capable of ensuring a fair trial. 107In the circumstances where there is no such direct evidence, the evidence of Ms Khokaz pertains to the very question at the centre of the Crown case against the applicant, namely, the identity of the person who in fact wielded the bottle. In the absence of any direct evidence in the Crown case on that aspect it is the only evidence that is capable of being seen as directly addressing that question. Evidence in that regard otherwise being absent, it is highly prejudicial to the applicant. The Crown case is made stronger by reason of this prejudicial material. 108I have concluded that clear and emphatic directions that the evidence in question is only admissible against the accused JH will not be sufficient to avoid a miscarriage of justice. 109Accordingly, I conclude that the applicant has established that there is a real risk that a positive injustice will be caused to him in a joint trial with JH. I order that the accused JP be tried separately. ********** 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: 06 August 2018