R v Hiroki [2014] NSWSC 365

R v Hiroki [2014] NSWSC 365

The applicant did not establish that a joint trial would cause positive injustice. The co-accused's recorded interview would not be admissible against the applicant, the jury could be directed accordingly, both the Crown and the applicant would submit that the co-accused's account should not be accepted, and there was a reasonable case against the applicant from other evidence. Although the applicant genuinely feared the co-accused because of past violence and recent threats, arrangements could be made to ensure physical safety, instructions could be taken outside the co-accused's presence if necessary, and evidence could be given by audio-visual link if appropriate. Any prejudice was...

Jurisdiction
Australia
Judgment Date
03 April 2014
Procedural Posture
Criminal Prosecution for Murder With Alternative Charge Against the Applicant of Accessory After the Fact to Murder / Interlocutory Application by Notice of Motion for a Separate Trial
Outcome
Motion dismissed.
Legal Topics
['separate Trials' 'joint Trial of Co Accused' 'positive Injustice' 'prejudicial Evidence Admissible Only Against Co Accused' 'jury Directions' 'domestic Violence and Intimidation in Criminal Trial' 'murder' 'accessory After the Fact to Murder']
['criminal Law' 'criminal Procedure' 'evidence'] ['separate Trials' 'joint Trial of Co Accused' 'positive Injustice' 'prejudicial Evidence Admissible Only Against Co Accused' 'jury Directions' 'domestic Violence and Intimidation in Criminal Trial' 'murder' 'accessory After the Fact to Murder']

Case Brief

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Procedural Posture

Criminal Prosecution for Murder With Alternative Charge Against the Applicant of Accessory After the Fact to Murder / Interlocutory Application by Notice of Motion for a Separate Trial

Legal Issues

  1. 1 ['Whether the applicant would suffer positive injustice if tried jointly with her co-accused.' "Whether the co-accused's electronically recorded interview, which implicated the applicant but was not admissible against her, created a risk of improper prejudice that could not be cured by directions." "Whether the applicant's fear of the co-accused, arising from a violent relationship and recent threats, would prevent her from following the trial, giving instructions, or giving evidence so as to make a joint trial unfair." 'How to balance any prejudice to the applicant against the public interest in a joint trial where co-accused each seek to blame the other and much of the evidence is common.']

Ratio Decidendi

The applicant did not establish that a joint trial would cause positive injustice. The co-accused's recorded interview would not be admissible against the applicant, the jury could be directed accordingly, both the Crown and the applicant would submit that the co-accused's account should not be accepted, and there was a reasonable case against the applicant from other evidence. Although the applicant genuinely feared the co-accused because of past violence and recent threats, arrangements could be made to ensure physical safety, instructions could be taken outside the co-accused's presence if necessary, and evidence could be given by audio-visual link if appropriate. Any prejudice was...

Court Disposition

Motion dismissed.

Orders

  • ['Motion dated 3 March 2014 for a separate trial is dismissed.']