R v Fitton

Supreme Court New South Wales Medium Neutral Citation: R v Fitton [2025] NSWSC 1103 Hearing dates: 12 September 2025 Date of orders: 25 September 2025 Decision date: 25 September 2025 Jurisdiction: Common Law Before: Chen J Decision: Order that the notice of motion dated 26 June 2025 be dismissed. Catchwords: CRIMINAL PROCEDURE – Trial – Application for separate trial – Where two accused are charged with different offences in relation to the same events – Whether separate trial should be ordered where only one co-accused is charged with murder under joint criminal enterprise – Whether “positive injustice” would arise by a joint trial Legislation Cited: Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: Ali v The Queen (2005) 214 ALR 1; [2005] HCA 8 Allen v R [2020] NSWCCA 173 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 Hamilton (a pseudonym) v R [2020] NSWCCA 80 McNamara v The King (2023) 280 CLR 201; [2023] HCA 36 R v Assim [1966] 2 QB 249 R v Bikic [2000] NSWCCA 106; (2000) 112 A Crim R 300 R v Dellapatrona & Duffield (1993) 31 NSWLR 123 R v Fernando [1999] NSWCCA 66 R v Oliver (1984) 57 ALR 543 R v Patsalis (No 1) [1999] NSWSC 649; 107 A Crim R 432 Ross v The Queen [2012] NSWCCA 207 Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 Category: Procedural rulings Parties: Daniel Fitton (Applicant) Rex (Respondent) Representation: Counsel: I Nash (Applicant) D Robinson (Respondent) Solicitors: Legal Aid NSW (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2023/00329403 Publication restriction: Nil

JUDGMENT Introduction HIS HONOUR: By joint indictment dated 27 May 2025 containing four counts, Daniel Fitton (‘the accused’) and Mark Peckham are charged with a series of offences arising out of the alleged murder of George Kirk (‘the deceased’) on or about 16 August 2023 at Dubbo, NSW. They are due to stand trial on 23 February 2026. Mr Peckham has been charged with the murder of the deceased (count 1), contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The accused has been charged with three offences that relate to him allegedly hindering the apprehension and subsequent investigation of Mr Peckham: first, on or about 16 August 2023, hindering the apprehension of Mr Peckham, being a person who had committed a serious indictable offence, contrary to s 315(1)(c) of the Crimes Act (count 2); secondly, on or about 16 August 2023, hindering the investigation of Mr Peckham, being a person who had committed a serious indictable offence, by taking possession of a knife alleged to be the weapon used to kill the deceased, contrary to s 315(1)(a) of the Crimes Act (count 3); and thirdly, on or about 17 August 2023, hindering the investigation of Mr Peckham, being a person who had committed a serious indictable offence, by directing Uneta White to clean a white Hyundai Tucson that the accused allegedly used to drive Mr Peckham away from the crime scene, contrary to s 315(1)(a) of the

Crimes Act (count 4). A third person has also been charged with offences arising out of the death of the deceased – Ms Stevie-Lee Jordan, the accused’s partner at that time. She has been charged with acting with intent to pervert the course of justice, contrary to s 319 of the Crimes Act, and hindering the investigation of a serious indictable offence, contrary to s 315(1)(a) of the Crimes Act. She has pleaded not guilty to both charges and is scheduled to face trial at Dubbo District Court on 14 April 2026. By notice of motion dated 26 June 2025, the accused seeks an order, pursuant to s 21(2)(b) of the Criminal Procedure Act 1986 (NSW) (‘the CPA’) that he be tried separately from Mr Peckham and that the three counts against him be severed from the indictment. In support of this application, the accused relies on an affidavit of his solicitor, Timothy Scott, affirmed 27 June 2025. In short, the accused’s key submission was that positive injustice would occur given the likelihood that, at the joint trial, evidence would be introduced that was only relevant and admissible against Mr Peckham and it would be difficult for the jury to “compartmentalise” that evidence when considering the charges against the accused. The Crown opposes the application. In short, it argues that any potential prejudice is capable of nullification by a judicial direction and, further, that the accused

has not demonstrated that a joint trial would occasion positive injustice. Factual Background Given the nature of the arguments advanced, it is only necessary to refer to certain aspects of the Crown case and to the evidence that is argued to give rise to the prejudice and positive injustice to the accused. The Crown case against the accused and Mr Peckham The Crown case against the accused and Mr Peckham is summarised in the Crown Case Statement (‘CCS’) dated 26 May 2025 at [1]-[6]. It provides: “Overview At around midnight on 15/16 August 2023, [Mr] Peckham entered the house at [redacted], Dubbo, in order to confront [the deceased] over a dispute relating to prohibited drugs. [The accused] also went in. Present at the time in the house were the deceased, his girlfriend Tammy Antaw, and a third person, David Johnson. [Mr] Peckham and [the accused] confronted the deceased. [Mr] Peckham then assaulted him with a knife. He inflicted a number of wounds and injuries upon the deceased, including a stab wound to his upper left chest, which killed him (count 1: murder). [The accused] was aware that [Mr] Peckham had inflicted serious injuries to the deceased. With that knowledge, he took [Mr] Peckham away from the crime scene (either by driving him or providing him with the use of a car) (count 2: hinder apprehension). The next day (16 August), [the accused] took possession of a knife

held out to him to have been the knife used by [Mr] Peckham to kill the deceased (count 3: hinder investigation). On learning that [Mr] Peckham had been arrested, on 17 August, [the accused] directed another person to clean the car used to drive [Mr] Peckham away from the crime scene (count 4: hinder investigation). Criminal responsibility – Peckham The Crown contends that [Mr] Peckham is guilty of the murder of the deceased as a principal in the first degree on one of the following bases: Direct responsibility: that he stabbed the deceased, intending to at least cause grievous bodily harm to him, and death was occasioned as a result. Joint criminal enterprise: that he was party to a joint criminal enterprise with [the accused] to assault the victim and cause him, at least, grievous bodily harm. Extended joint criminal enterprise: that he was party to and participated in a joint criminal enterprise with [the accused] to intimidate the deceased and contemplated, as a possible incident, the intentional infliction of grievous bodily harm. Criminal responsibility – Fitton Whilst the Crown’s case against [Mr] Peckham contemplates the possibility that a jury might find that [the accused] was involved in the assault upon the deceased, that is not the case that the Crown puts against [the accused]. Accordingly, the Crown does not contend that [the accused] is liable for murder. The

Crown case against [the accused] is that he is a principal in the first degree in respect of each of counts 2 to 4 in that he took [Mr] Peckham away from the scene (count 2), took the knife represented to him to be the murder weapon (count 3) and directed the cleaning of the car used to drive [Mr] Peckham away (count 4).” Two matters, relevant to what the accused later argues, should presently be noted. First, the accused submits that the inclusion of joint criminal enterprise (‘JCE’) as a basis to establish murder by Mr Peckham could possibly involve attributing physical acts in the murder to the accused (namely, the accused “being responsible for the fatal wound”: accused’s written submissions at [10]). Additionally, the accused submits that this reflects efforts by the Crown “to grapple with fundamental inconsistencies in the several accounts of the central Crown witness”, namely, Tammy Antaw (accused’s written submissions at [10]). Secondly, the accused’s arguments in support of a separate trial were principally made against the backdrop of count 2 of the indictment (hindering the apprehension of Mr Peckham). As is apparent from the CCS, the Crown case on this count is that the accused drove himself (in a white Hyundai) to Ms Antaw’s house and then entered the premises with Mr Peckham (who had already walked there): CCS at [46]. The Crown alleges that the two men then

confronted the deceased and that Mr Peckham subsequently stabbed him. The Crown alleges that the accused “was aware” that Mr Peckham had “inflicted serious injuries to the deceased” and, with that knowledge, drove Mr Peckham away from the crime scene: CCS at [3]. As explained during submissions, the accused does not dispute that he “drove Mr Peckham away”. Rather, the accused’s “case” is that he arrived in a car but “didn’t leave the car” before driving Mr Peckham away. Accordingly, given those circumstances, the accused submitted that the critical issue was “what the Crown can prove about [the accused’s] state of knowledge of what happened at the time [the accused] [drove] Mr Peckham away”. The evidence from Tammy Antaw and David Johnson The Crown accepts that the evidence of Ms Antaw and Mr Johnson is “central” to the Crown case: the events occurred in Ms Antaw’s house and, as noted in the CCS, both of them were present at the time the deceased was confronted and stabbed. With respect to Mr Johnson, however, it appears that he was in a different room, seemingly “on the lounge”, during at least part of the confrontation. I now turn to their evidence with a particular focus on those parts relied upon by the accused to demonstrate “inconsistency” arising from the accounts Ms Antaw gave in three interviews with the police. Tammy Antaw Ms Antaw has, relevantly, been interviewed by

police on three occasions: first, on 16 August 2023 at around 5:54am whilst at Dubbo Hospital (‘Antaw first interview’); secondly, on 16 August 2023 at around 7:50pm at an “undisclosed location” (‘Antaw second interview’); and, thirdly, on 28 August 2023 at around 11:40am during a walk-through at her home (‘Antaw third interview’). The accused argues that Ms Antaw has given “irreconcilably inconsistent accounts of the fatal assault in three recorded interviews with police” (accused’s written submissions at [11]). The foundation for this submission is the accused’s argument that Ms Antaw’s recollection about the events that occurred in her bedroom in her first and second interviews is inconsistent with her recollection about the events in her third interview: it was argued that Ms Antaw’s version of events in her first and second interviews essentially nominates Mr Peckham as having stabbed the deceased, whereas the version of events she gave in her third interview suggests the possibility of the accused having some physical involvement in the fatal assault. The accused thus submitted that the existence of these differing and “inconsistent” accounts generated the requisite prejudice and positive injustice which necessitated an order for a separate trial. Antaw first interview The accused accepts that, during Ms Antaw’s first interview, she initially described the involvement of

more than one individual in the events that unfolded. This is evident from her description that “[t]hey wanted drugs and [the deceased] told them that he had drugs” (emphasis added) as well as subsequently repeating “they wanted drugs” (emphasis added) (Antaw first interview, pp 6-7). However, the accused submits that Ms Antaw subsequently narrowed her account in her first interview to Mr Peckham alone being responsible for the stabbing and killing of the deceased (accused’s written submissions at [17]). The accused additionally emphasised that Ms Antaw’s account in her first interview, identifying Mr Peckham as the person who stabbed the deceased, was consistent with representations she made to police in the immediate aftermath of the stabbing where, in response to a question about whether she knew “who did this”, she only nominated Mr Peckham. To support this step in his argument about the apparently “irreconcilably inconsistent accounts” of Ms Antaw (accused’s written submissions at [11]), the accused emphasised subsequent parts of this interview, including: Ms Antaw’s apparent acknowledgement that Mr Peckham was not “with anyone” (Antaw first interview, p 14); Ms Antaw’s description of what Mr Peckham was apparently wearing (Antaw first interview, p 14); and Ms Antaw’s account of Mr Peckham attending the home earlier the same evening (Antaw first interview, p 22). The

accused thus argued that it was clear on the account given in Ms Antaw’s first interview that she identified Mr Peckham “alone [as being] responsible for stabbing and killing the deceased” (accused’s written submissions at [17]). Antaw second interview In relation to the second interview, the accused refers to Ms Antaw’s description of what occurred on 15 August 2023, where she describes having her jacket returned to her by a person referred to as “Hush Dozer” (Antaw second interview, p 2). The accused accepts that this is a reference to him (accused’s written submissions at [19]). The accused next refers to Ms Antaw’s account of the “circumstances surrounding what happened at [her] place” (Antaw second interview, p 2): “We went in the bedroom, shut the door. [Mr Peckham] knocked on the back door wi- on the front window, and I told him to go to the back door, and he said anything? I said nuh, there’s nothing. And then he left. I locked the door, went back in the room. George and I were just playing around with the puppy, named it. Then we were taking selfies. I told him to set the alarm cause I had to go to Coonabarabran this morning for my Uncle’s funeral. I said make sure you wake me up. Then I woke up, I don’t know what time it was, to them scuffling. He said come sit at the end of the bed, and tell me that, tell me that Chelsea’s lying, and that you’re not treating me like

a gronk. And he went down to the end of the bed, and then he threw him back into the corner of the room. That’s when, I think he stabbed him. He stood up and said why are you trying to kill me. And then all the blood rushed out. I ran into the kitchen. David was still sitting on the lounge. Didn’t move. I’m just sitting there, rocking back and forth on the floor. When I looked up, Hush Dozer’s at the back window, he’s just staring at me. I’m still screaming. [Mr Peckham] yells out to David and says ring an ambulance. And he did.” (Emphasis added) The accused submits that this part of the account, like the version given in the first interview, only identifies one person as being involved in the physical interactions leading to the stabbing of the deceased and, importantly, did not identify the accused as being involved. The accused also refers to subsequent parts of this interview, including that: Ms Antaw nominated Mr Peckham as having “stabbed [the deceased]” (Antaw second interview, p 2); when Ms Antaw awoke “to a scuffle”, she heard Hush Dozer say “tell me you’re not treating me like a gronk”, after which the deceased “went to the end of the bed. And that’s when [Mr Peckham] grabbed [the deceased], pushed him, stabbed him” (Antaw second interview, p 4); and Ms Antaw later indicated that it was Mr Peckham who had a conversation with the deceased that involved the words “tell

me that you’re not treating me like a gronk” (Antaw second interview, p 13). The accused also refers to the following exchange during Ms Antaw’s second interview which dealt with the events immediately prior to the deceased being stabbed (Antaw second interview, pp 13-14): “SB: What was [the deceased's] response? A: I’m telling you now, I not treating you like a Gronk. I’ve got nothing, I’ve got money SB: And that’s [the deceased] saying that? A: Uh hmm SB: Yep? What did [Mr Peckham] say in response to that? A: No, you’re treating me like a Gronk, Chelsea said you got it. He’s got… SB: Yep. What, um, at what point did the scuffle start? A: After… pretty much straight away, after [the deceased] told him exactly what he wanted to say SB: Yep. What was, um, Hush Dozer, saying, anything during this? A: He was the one that said to come sit at the end of the bed and tell him. And then he turned around and walked out, cause I heard the back door SB: Yep. So he, Hush wasn’t there during the scuffle? A: It was like as if he told him to do it, like, egged him into it SB: Sorry, you…. so Hush egged [Mr Peckham] into doing it? A: He was like, come sit at the end of the bed, and tell him, and he did exactly that, and then that’s when he walked out SB: Ok, and then the scuffle happened, and you heard the winded sound. How long did the scuffle take, do you think? A: Not long” The accused

accepts that this account, at its highest, “ascribes increased involvement” on the part of the accused since it involves the accused requesting the deceased to “come sit at the end of the bed” after which he “egged [Mr Peckham] into doing it” but “walked out” of the room (accused’s written submissions at [26]). Nevertheless, the accused submits that this account provides “little support for proof that the [accused] was party to a joint criminal enterprise to attack the deceased or some other agreement that might found liability on some extended basis” (accused’s written submissions at [26]). This account by Ms Antaw, which was not suggested to give rise to any prejudice to the accused, also illustrates that the alleged offences are somewhat closely connected. Antaw third interview In relation to the third interview – this being the occasion when the accused argues that Ms Antaw advances an “inconsistent” account of what occurred in the bedroom – the accused refers to Ms Antaw’s description of the events after the deceased was confronted whilst in bed. The relevant parts from that interview, relied upon to demonstrate that inconsistency, included: That Ms Antaw “woke up and [she] saw the two men at the end of the bed”, being Mr Peckham “and that D guy” (Antaw third interview, p 13); Ms Antaw’s observation that “D was more behind” Mr Peckham (Antaw third interview, p 13); Ms

Antaw stating that the “D-guy said, ‘Come sit at the end of the bed and tell us that you’re not treating us like a gronk, and Chelsea and Jane ain’t lying’” and that, after the deceased sat at the end of the bed, “they said, ‘No, we don’t want money, you’re just treating us like a gronk’” (Antaw third interview, p 14); Ms Antaw’s recollection about the events that then unfolded being: the deceased’s response was, “Am I really?” at which point the deceased stood up before the “[the accused] … pushed him, back into the vase” (Antaw third interview, pp 13-14); that it was then that she “heard the dripping” (Antaw third interview, pp 13-14); that “I think that D guy might have hit him [because] [sic] you [could] hear that the blood was from high, like, you could hear it dripping. Like, pouring” (Antaw third interview, p 18); Ms Antaw’s observation that she “looked outside” and the accused was standing seemingly behind the “screen door” (Antaw third interview, pp 20-21); and Ms Antaw’s recollection of seeing a “silver blade” in Mr Peckham’s hands and observing a stabbing motion “when he went again”, apparently in the hallway (Antaw third interview, pp 23-24). The accused describes the potentially increased involvement of the accused in this version not only as “inconsistent” with the version propounded in the first and second interviews, but as a “belated description” and

“incredible testimony” (accused’s written submissions at [49]). David Johnson Mr Johnson gave statements to the police on 16 August 2023 (‘Johnson first statement’) and 17 August 2023 (‘Johnson second statement’). Johnson first statement In the first statement, Mr Johnson, who was at Ms Antaw’s home on the evening that the deceased was stabbed, was “on the lounge” having a video call with a friend when the events unfolded (Johnson first statement at [12]-[14]). His initial description was: “While I was on the phone … I heard the back screen door slam and two blokes come running into Tammy’s bedroom … yelling ‘you’re fucking dead dog, you’re fucking dead dog’. I heard [the deceased] say ‘what the fuck, what the fuck.’” Mr Johnson was unable to provide a description of “the two blokes” but stated that they “obviously knew what they were coming for, they were straight through the back door into the house, straight to Tammy’s room, did their deed, then straight back out again” (Johnson first statement at [15]). He confirmed that he did not “see the faces of either of the two people that came in” (Johnson first statement at [15]). Additionally, Mr Johnson confirmed that he “didn’t see who stabbed [the deceased]” and that he did not “know who the two blokes were that did this” (Johnson first statement at [21], [25]). Johnson second statement In the second statement, Mr Johnson

relevantly added some detail to the version given in his first statement. After hearing the words “you’re a fuckin’ dog” and “you’re dead cunt”, Mr Johnson said that he “actually got up off the lounge and stood in the doorway between the lounge room and the hallway” and that he had hung up the video call (Johnson second statement at [8]). He then added the following: “They were in bed, that’s still true. The stocky cunt was standing in the doorway between the hallway and the bedroom, blocking the doorway, so I couldn’t really look around him into the bedroom, but I knew [Mr Peckham] was in the bedroom.” Mr Johnson also described having met Mr Peckham on “Monday night” – that is, on 14 August 2023, at Ms Antaw’s house – and that Mr Peckham was “coming and going all the time, during the day and night (Johnson second statement at [9], [11]). Mr Johnson also described being in a car, apparently on 15 August 2023, with the deceased, Mr Peckham and a person who he did not know (“a skinny white fellow on the front passenger seat”) and the driver being “the same stocky that come into the house with [Mr Peckham] when [the deceased] was stabbed. He was the one blocking the door” (Johnson second statement at [17]). The accused submitted that Mr Johnson’s description of the “two blokes” being involved, as set out in his two statements, was inconsistent with what he told the police who

arrived in the immediate aftermath of the stabbing. For example, Senior Constable Bott, who attended Ms Antaw’s property following a report to police that a person had been “stabbed”, states that Mr Johnson reported that he did not “see the person” who stabbed the deceased (Senior Constable Bott statement dated 16 August 2023 at [9]). Additionally, by way of further example, the accused submits that when asked by another police officer who attended the premises, Constable Gavel, to describe what occurred, Mr Johnson said, “I don’t know some random fucking come in here and started fucking stabbing him” (Constable Gavel statement dated 16 August 2023 at [15]). General principles: separate trials The accused identified, and the Crown accepted, three general principles that apply when determining whether separate trials should be ordered. First, the prima facie rule is that where multiple people are charged with committing the same crime, they should be tried together, citing Webb v The Queen (1994) 181 CLR 41, 88-89; [1994] HCA 30 (‘Webb’; see also R v Oliver (1984) 57 ALR 543, 547 (‘Oliver’)). Secondly, that “recent case law supports a joint trial unless there [is] some ‘special or other’ feature which [requires] separate trials”, citing Ali v The Queen (2005) 214 ALR 1; [2005] HCA 8 at [58]. Thirdly, the accused, being the applicant for a separate trial, bears the onus of

showing that “positive injustice” would be caused by a joint trial, citing R v Patsalis (No 1) [1999] NSWSC 649; 107 A Crim R 432 at [12]-[13] (see also R v Bikic [2000] NSWCCA 106; (2000) 112 A Crim R 300 at [21]). As the Crown emphasised, the requirement for “positive injustice” was reiterated by the High Court in McNamara v The King (2023) 280 CLR 201; [2023] HCA 36 at [42] (‘McNamara’): “Given that it is in the nature of a joint trial that evidence adverse to one or more co-accused can become known to the jury which would not be known to separate juries were separate trials of each co-accused to be conducted, the existence of some risk of forensic prejudice to an accused arising from the admission of such evidence is inherent in any joint trial and is not of itself inconsistent with the overall interests of justice supporting the conduct or continuation of the joint trial. Prejudice to a co-accused will not result in the ordering of a separate trial if it is amenable to nullification by judicial direction to the jury. Having regard to the strength of the reasons of principle and policy which ordinarily weigh in favour of a joint trial, however, even substantial prejudice to a co-accused of a kind not really amenable to nullification by judicial direction will not result in the ordering of a separate trial ‘as a matter of course’. To justify the ordering of a separate trial,

the particular prejudice to a co-accused must rather be shown to be such as would occasion ‘positive injustice’. In a joint trial, as in any other trial, ‘[a] fair trial according to law does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused’.” (Footnotes omitted) The accused, although accepting the applicability of the principles identified in McNamara, nevertheless submitted that a degree of “restraint” should be exercised before applying them, given the accused and Mr Peckham have not been charged with committing the same crime. Notwithstanding that difference, the desirability of a joint trial has been recognised as extending beyond those merely charged with jointly committing the same crime. For example, in R v Dellapatrona & Duffield (1993) 31 NSWLR 123, 133 (‘Dellapatrona’), it was said that it was “desirable to have all those charged in relation to a particular crime tried at the same time, unless positive injustice would thereby be caused” (emphasis in original). Further, in R v Fernando [1999] NSWCCA 66 at [199] (‘Fernando’), the Court endorsed the following passage from R v Assim [1966] 2 QB 249, 261, where Sachs J said: “As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than

it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases.” During the hearing, the submissions of the parties also touched upon some other considerations relevant to whether a separate trial should be ordered. Accordingly, it is appropriate to supplement the summary of background principles that inform the exercise of the power in s 21(2)(b) of the CPA in two respects. The first is the need to consider the interests of justice. That consideration, however, is not confined to the interests of an accused but extends to the consideration of the public interest “in the efficient despatch of trials, the conserving of costs and the avoidance of any inconvenience to witnesses by having to attend a number of trials”: Oliver at 547; Fernando at [204]; Ross v The Queen [2012] NSWCCA 207 at [24], citing Webb at

89. The second is that “there remains a balance to be struck between the public interest in the efficient despatch of criminal trials and any prejudice which may be caused to the accused”: Dellapatrona at 133; Fernando at [207]. Ultimately, as the parties accepted, the critical question is whether it has been demonstrated by the accused that the prejudice argued to arise, “would occasion” positive injustice to him in a joint trial: McNamara at [42]. The arguments: discussion and consideration The accused raised three partly overlapping arguments that were said to demonstrate positive injustice and, therefore, the need for a separate trial to be ordered. The first argument: the accused and Mr Peckham are charged with different offences The first argument was that, as the accused and Mr Peckham are “not charged with committing the same crime”, it would be “apparent to any jury that the allegation of murder against [Mr] Peckham is significantly more serious than [sic] the charges” brought against the accused (accused’s written submissions at [48]). The submission was not developed further. In particular, the accused did not identify precisely why the different charges would give rise to positive injustice. In my view, the mere fact that a difference exists between the offending alleged against the accused and Mr Peckham does not, without more, amount to prejudice of the requisite

kind, less still does it amount to positive injustice. The second argument: the cases are fundamentally inconsistent The second argument was that “injustice will arise from the fundamentally inconsistent cases” the Crown brings against the accused and Mr Peckham (accused’s written submissions at [49]). The nub of this complaint was a concern that a joint trial would “create the real risk that improper weight [would] be given to testimony [by] suggesting the [accused was] involve[d] in the fatal assault, despite that being no part of the Crown case against him” (accused’s written submissions at [49]). The footing for this submission was the account given by Ms Antaw during her third interview (see [30] above), notably her description that the accused “pushed” the deceased into the vase after which she “heard the dripping”. During submissions, Mr Nash, who appeared for the accused, accepted there was no legal inconsistency or irregularity in the way the Crown had charged his client, albeit he suggested that this was “unusual”. The accused’s argument was, thus, confined to what was submitted to be factual inconsistency. In that respect, the argument advanced was that, given the Crown relies upon JCE (in the two ways referred to in [4(b)] and [4(c)] of the CCS), there is a prospect that the jury will be invited to assess whether the accused had “at least some level of involvement”

in the fatal assault (when considering the charge against Mr Peckham) while also “being told that determining such involvement is irrelevant to [the] resolution of [the accused’s] charges” (particularly count 2). This was the factual inconsistency argued to arise. I tend to doubt whether it is apt to describe the above as involving “inconsistency”. In my view, there is no “inconsistency”, in the sense of there being incompatibility or incongruity, simply a difference between the charges and the evidence relied upon. I also tend to doubt whether that characterisation in fact matters. Irrespective of the description given to that scenario, the ultimate question remains the same, namely, whether the presentation of such a case involving the evidence identified by the accused would result in positive injustice to him in a joint trial. Given the argument raised, three interwoven matters require consideration: the nature of the evidence; the likelihood or prospect of that evidence being adduced; and the prejudicial effect of it, if given. The nature of the evidence has been earlier set out. In short, the accused’s argument is directed to the account in Ms Antaw’s third interview suggesting there was some physical interaction between the accused and the deceased. Building upon that, the accused argues that there is a basis to infer that this interaction contributed in some way to the

death of the deceased. It is, perhaps, worth observing that the “prejudice” suggested by the accused was not that Ms Antaw described the accused being present in the bedroom, but her description of the physical interaction coupled with a suggestion of her hearing “dripping”. When considering the prospect of Ms Antaw giving evidence concerning the account in her third interview, it is relevant to note the following three matters. First, the Crown submitted that the account in Ms Antaw’s third interview “appears to be the least likely” one and indicated that it “would not be adopting that version at trial”. Instead, the Crown submitted that its current position was that it is “most likely that Ms Antaw [will] give evidence in accordance with” her first and second interviews, described during submissions by the Crown, as follows: the accused and Mr Peckham “were in the bedroom when she awoke, that [the accused] directed the deceased to sit at the end of the bed, which he did, and that it was around that point that [the accused] left the bedroom, leaving Mr Peckham inside”; and Ms Antaw went to the kitchen and when she returned, on her account, it would appear that the deceased had been stabbed by that time. Secondly, it is simply not known what, if anything, Ms Antaw is likely to say in her evidence-in-chief about the account in her third interview and the Crown was not placed to

indicate one way or the other. My assessment is that there is some small but presently unquantifiable prospect that this account, or some aspect of it, may be given. Thirdly, assuming no evidence is given in chief about the account in Ms Antaw’s third interview, the accused submitted, and the Crown accepted, that it was likely that counsel for Mr Peckham would attempt to elicit evidence from Ms Antaw about what was said in that interview. Again, whether – and, if so, to what degree – any attempt to elicit that evidence would or might be successful is difficult to predict. The parties essentially suggested that it remained possible that the evidence would be elicited, and I have proceeded on that basis. Accordingly, it is necessary to assess its prejudicial effect upon the accused, an issue to which I now turn. As McNamara recognises, it is in the nature of a joint trial that some risk of prejudice to an accused may exist arising from evidence that is admissible against one accused but inadmissible against another (to whom it is prejudicial); however, the existence “of some risk of forensic prejudice” to an accused in those circumstances is not “of itself inconsistent with the overall interests of justice supporting … [a] joint trial”: McNamara at [42]; see also Dellapatrona at 134. Further, as McNamara also recognises, the existence of such prejudice is itself insufficient to

justify an order for a separate trial – rather, it must be demonstrated that the “particular prejudice” alleged “would occasion ‘positive injustice’”: McNamara at [42]. Clearly, if the account in Ms Antaw’s third interview, or a variant of it, is adduced, the jury will be carefully and specifically directed about evidence that is only admissible against Mr Peckham and that evidence of that kind is irrelevant to, and not to be used by them when considering, the charges against the accused. The directions would necessarily also extend to identifying what evidence was admissible against the accused on those charges. In this respect, it should be noted that the accused did not suggest that any directions to the jury arising out of the account in Ms Antaw’s third interview would be particularly complex and, to be clear, I am satisfied they would not be. It is, thus, not a case where complex directions would be needed, carrying with it the concomitant risk that the jury may have difficulty following them: Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [41]; Allen v R [2020] NSWCCA 173 at [63]-[64]. The accused, whilst accepting that directions of the kind identified can and would be formulated, nevertheless submitted that it would be “very difficult” for the jury to “compartmentalise” the evidence when considering the charges against the accused. To the extent the accused’s

submission distilled to a contention that, following directions, the jury cannot be trusted to act reasonably and in accordance with directions given to them, I am unpersuaded by the submission. Compartmentalising evidence, aided by directions, is commonly what juries do. That they do is an assumption upon which the criminal justice system proceeds – namely, that the jury will act upon the directions given to them in relation to which evidence applies to a particular accused: Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [13], [31]. Further, to the extent the accused’s submission involved a variant to that argument, to the effect that the evidence may sub-consciously (and unfairly) affect the jury’s deliberations, I do not accept the submission. The evidence is limited and I consider that any prejudice that may arise will be confined and capable, given that assessment, of nullification by directions to the jury: McNamara at [42]. The third argument: the ‘selective’ approach of the Crown The accused’s third argument, which overlaps with his second, is that “injustice [is] likely to arise from the approach of the Crown to Ms Antaw” (accused’s written submissions at [50]). It was submitted that the “inconsistent nature of the cases” brought by the Crown against Mr Peckham and the accused was driven by “[Ms] Antaw’s inconsistent accounts” and that “it is not clear what attitude

it will adopt” to those accounts. Accordingly, the accused suggested that the Crown may well adopt a “selective approach to the accounts of [Ms] Antaw” (accused’s written submissions at [50]). Thus, whereas for the second argument the focus was upon the jury giving “improper weight” to the account in Ms Antaw’s third interview, the crux of this complaint appears to be directed to how the Crown proposes to deal with the evidence from Ms Antaw. I do not accept this submission for the following reasons. First, as I have earlier noted, I do not accept that there is any inconsistency in the Crown cases. Secondly, whilst it may be accepted that there are differences between, say, the accounts in Ms Antaw’s first two interviews and her third interview, as the accused argued, I consider it to be presently a matter of debate as to whether or not Ms Antaw has given “inconsistent accounts”. Thirdly, as noted above, to the extent that the Crown was presently placed to indicate its approach, it indicated that the account in Ms Antaw’s third interview was “the least likely” and that its current position is that it is “most likely” that Ms Antaw will give evidence in accordance with her first two interviews. The Crown also indicated that, to the extent the circumstances required a different approach, it would then “disclose any differences or clarification in relation to that point”. It

follows, therefore, that I have not accepted any of the arguments raised by the accused to support an order that he be separately tried from Mr Peckham. It remains necessary, notwithstanding the above, to consider the accused’s “public interest” argument. The accused’s brief submission was that, given there was a scheduled trial involving Ms Jordan, the charges against the accused could instead be tried at that time. It followed, on this argument, that the public policy factors did not weigh against the order that the accused sought. I am unpersuaded that this argument provides a sound basis, on its own, or when considered in the context of the other arguments raised, to order a separate trial. In part, that is because there was no analysis at all undertaken to address the various public interest factors, merely a broad assertion that matters of public interest could be achieved by proceeding in that way. The accused has failed to persuade me that a joint trial would occasion positive injustice, as he has argued. Orders For the above reasons, I make the following order: Order that the notice of motion dated 26 June 2025 be dismissed. ** 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: 11 May 2026