R v Roff [2015] NSWSC 1853

Supreme Court New South Wales

Medium Neutral Citation: R v Roff [2015] NSWSC 1853 Hearing dates: 23 October 2015, 27 November 2015 Date of orders: 14 December 2015 Decision date: 14 December 2015 Jurisdiction: Common Law Before: Hamill J Decision: (1) Order that Raymond Isaac Roff is to be tried separately from Sarah Renae Tarrant. (2) Confirm the trial date of 21 March 2016 in respect of Sarah Renae Tarrant with the trial of Raymond Isaac Roff to proceed immediately thereafter. (3) Note that the file will be referred to the Criminal List Judge for allocation of a trial Judge and that the trial Judge may arrange a call-over in February 2016. Catchwords: CRIMINAL PROCEDURE – application for separate trial – whether prejudice at a joint trial because of admissions made by co-accused in recorded interview – co-accused asserts substantial impairment – co-accused implicates herself and the applicant – whether prejudice can be cured by direction – applicant denies involvement – evidence and Crown case the same against both accused – issues in the trials different – separate trials ordered Category: Procedural and other rulings Parties: Regina (Crown) Raymond Terrence Roff (Defendant) Representation: Counsel: P McGrath SC (Crown) R Sutherland SC (Roff) J Manuell & I Nash (Tarrant)

Solicitors: Solicitor for the NSW DPP (Crown)

File Number(s): 13/243015

Judgment 1. Raymond Roff (the applicant) and Sarah Tarrant have been jointly indicted for the murder of Alois Rez. The applicant seeks an order under s 21(2)(b) of the Criminal Procedure Act 1986 (NSW) that he be tried separately from Ms Tarrant. 2. Mr Rez was the de-facto partner of Ms Tarrant. He was reported missing on 2 August 2013 by his mother and has not been seen since 28 July 2013. The evidence suggests that Ms Tarrant and/or the applicant were the last people to see him alive. The prosecution case is that the applicant and Ms Tarrant were in a sexual relationship, that she was pregnant with his child, that Ms Tarrant was unhappy in her relationship with Mr Rez and that the two accused agreed to kill him. The Crown alleges that on the evening of 28 July 2013 Ms Tarrant administered some form of sedative to Mr Rez and that the applicant attended and killed him at some time between 1:54 and 3:28 am on 29 July 2013. The timing is based on a series of text messages between the telephone services of the two accused. The Crown will assert that after Mr Rez was killed, the applicant disposed of his body while Ms Tarrant took steps to cover up the crime, specifically by hosing down the driveway. 3. On arraignment, both accused pleaded not guilty to murder. However, Ms Tarrant entered a plea of guilty to manslaughter. The basis of this plea was that she has a partial defence under s 23A Crimes Act 1900 (NSW). That is, she will assert that at the time of the killing she was substantially impaired by an abnormality of mind and that this impairment was so substantial that her liability for murder should be reduced to manslaughter. 4. The applicant submits that he will be embarrassed and prejudiced in the conduct of his defence if he is tried together with Ms Tarrant. This submission is based predominantly on the contents of a recorded interview that will be tendered in Ms Tarrant's case but which is not admissible against the applicant. It is also based on the fact that, because of the contents of that interview and the defence that Ms Tarrant will conduct, the issues in the two cases are different and the potential prejudice to the applicant cannot be overcome by direction to the jury. The Crown opposes the application and submits that that the admissions made by Ms Tarrant are all supported by other evidence in the case, that the facts alleged can be proved by other evidence and that any prejudice arising can be cured by direction. The Crown relies on the strength of the circumstantial case against both accused and on the body of authority in which the appellate Courts have emphasised the capacity of juries to follow judicial directions, to put aside prejudicial evidence and to compartmentalise evidence where parts are admissible against one accused person but not admissible against another. 5. The question of whether to make an order under s 21(2)(b) is a discretionary one but one that is based on well-established principles. I have concluded that the trials of the two accused should be separated and I will make orders accordingly. These are my reasons for that conclusion.