R v Bloodsworth; R v Errington (No 1) [2017] NSWSC 1482

Supreme Court New South Wales

Medium Neutral Citation: R v Bloodsworth; R v Errington (No 1) [2017] NSWSC 1482 Hearing dates: 19 October 2017 Date of orders: 19 October 2017 Decision date: 19 October 2017 Jurisdiction: Common Law Before: Adamson J Decision: Application for a separate trial of the accused Errington is refused. Catchwords: CRIMINAL LAW – application for a separate trial – where evidence adduced against one co-accused prejudicial to the other co-accused – where prejudice can be overcome by a direction to the jury

CRIMINAL LAW – responsibility of counsel to make timely objection when plain that further evidence not being led by Crown before witness excused – accused bound by conduct of counsel Cases Cited: R v Birks (1990) 19 NSWLR 677 R v Fernando [1999] NSWCCA 66 Webb & Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30 Category: Principal judgment Parties: Regina Rhiannon Lisa Bloodsworth (Accused) Trent Errington (Accused) Representation: Counsel: M Hobart SC (Crown) D Price (Accused Bloodsworth) D Carroll (Accused Errington)

Solicitors: Solicitor for Public Prosecutions (Crown) PJM Lawyers (Accused Bloodsworth) Sydney Criminal & Traffic Lawyers (Accused Errington) File Number(s): 2015/255218; 2015/254857

Judgment

Introduction 1. The accused Trent Errington presently stands charged with murder by an indictment presented on 16 October 2017, which also charges the accused Rhiannon Bloodsworth with the murder of Jay Cerin between 28 August 2015 and 30 August 2015. The Crown case was that the two accused, as parties to a joint criminal enterprise to cause grievous bodily harm to Jay Cerin (the accused Errington's half-brother), punched and hit him and hogtied him and left him, as a result of which he died. The cause of death was said to be either hogtying (which caused positional asphyxia or restraint-related stress) or hogtying in combination with blunt force head injury. 2. Mr Carroll, who appeared on behalf of the accused, applied for a separate trial of the accused Errington. The application was made for the first time on 19 October 2017, the fourth day of the trial of both accused which commenced on 16 October 2017. I rejected the application after hearing argument and indicated that I would give reasons for my decision. What follows are my reasons for this decision. 3. I note that, although the application was framed in terms of an application for a separate trial, it was, in substance, an application for the discharge of the jury, coupled with an application for a separate trial, since, had I been persuaded that separate trials were warranted, it would have been necessary to discharge the jury for the joint trial which commenced on 16 October 2017.