Hamalainen v R

1. [1]

   THE COURT: The applicant, Sami Hamalainen, seeks leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) from an interlocutory order made by Wright J on 27 August 2019, dismissing his application for a trial separate from that of his co-accused, Robert McCloskey (“RM”).

2. [2]

   The applicant has pleaded not guilty to an indictment containing one count of murdering John Salafia on 23 June 2013. RM is the co-accused on that indictment. The applicant made a number of pre-trial applications.

3. [3]

   The first application was to exclude, from the trial of the applicant, evidence of certain admissions made by RM involving the applicant. On 26 August 2019, Wright J made rulings that evidence of a number of admissions made by RM after the deceased died were not admissible against the applicant. On 6 September 2019, his Honour delivered reasons: R v McCloskey; R v Hamalainen [2019] NSWSC 1175.

4. [4]

   The applicant’s second application was for a trial separate from RM on the basis that, by reason of the admissions made by RM which were inadmissible against the applicant, a joint trial would be unfair. The third application was for a judge alone trial. On 27 August 2019, Wright J made the following orders:

5. [5]

   On 6 September 2019, his Honour delivered reasons for making those orders: R v McCloskey; R v Hamalainen (No 2) [2019] NSWSC 1176.

6. [6]

   This application for leave under s 5F of the Criminal Appeal Act relates only to Order 1 made by Wright J on 27 August 2019, dismissing the application for a separate trial.

Relevant facts

1. [7]

   A Crown Case Statement under s 142 of the Criminal Procedure Act 1986 (NSW) was tendered on the separate trial application before Wright J. The relevant facts here described are derived from that document.

2. [8]

   The applicant and RM are each charged on the same indictment with murdering John Salafia on 23 June 2012 at Kings Point in New South Wales. The Crown case is that both the applicant and RM are members of different chapters of the Rebels Outlaw Motorcycle Gang. The deceased had been a member of the Rebels for a short period during 2002. He and the applicant were acquaintances who grew up together in the Ulladulla area.

3. [9]

   The Crown asserts that the applicant strongly disliked the deceased based upon a combination of personal disputes, tension between Outlaw Motorcycle Gangs caused by the deceased associating with a nominee for the Comancheros Outlaw Motorcycle Gang and perceived competition with respect to drug trade. Part of the Crown case is that in the weeks prior to the murder the deceased and a nominee for the Comancheros assaulted a young drug dealer in the local area and flushed his illicit drugs down the toilet. The applicant became concerned that the deceased was taking over the town and infringing upon his “trade” in drugs.

4. [10]

   The Crown proposes to rely upon three informer witnesses at trial to provide evidence of events around the time of the murder and of admissions made directly to them by one or both of the accused.

5. [11]

   It is the Crown case that during a meeting on 18 June 2013 between the applicant and RM, it was agreed that RM and his “crew” would kill the deceased. The applicant was to provide a vehicle to use for this purpose. On 22 June 2013, the applicant said to informer witness, RS1678789 (“witness 789”): “I'm sick of Johnny [the deceased] running around and that. Robbie [RM] and his crew are coming down to fix Johnny”. This evidence has been held by the trial judge to be admissible against both the applicant and RM.

6. [12]

   The applicant purchased a 1999 model white Subaru Forester from a Mr “M” of Bawley Point. Witness 789 drove the vehicle to bushland at the back of Milton with the applicant following in his vehicle. Witness 789 left the keys on the floor of the vehicle and left the scene in the applicant’s vehicle. On 22 June 2013, witness 789 moved the vehicle further into the bush. On 23 June 2013, witness 789 was instructed by the applicant to show RM where the vehicle was hidden, which he did.

7. [13]

   The Crown alleges that at about 10.10pm on 23 June 2013, RM and three of his crew drove to the home of the deceased at Kings Point in the white Subaru Forester. One of the men knocked on the door. The deceased opened the wooden inside door but left the mesh-covered metal front security door closed. RM shot the deceased through the security door five times. He was struck in the chest, right buttock and head and fell to the floor. At about 10.30pm, the deceased’s partner returned home and found him lying on the lounge room floor. She called 000. He died at the scene.

8. [14]

   RM and his crew drove the Subaru away from the crime scene and into the bush. Two associates drove the vehicle further into the bush and set fire to it.

9. [15]

   At about 10pm on 23 June 2013, the applicant picked up witness 789 from his home. He instructed witness 789 to warn the previous owner of the Subaru not to tell the police that the applicant had purchased the vehicle. This evidence has been held by the trial judge to be admissible against both the applicant and RM.

10. [16]

    In the following days the applicant instructed witness 789 to find out where the burnt out vehicle was hidden. Witness 789 went with one of RM’s crew to find it. The applicant was unhappy with the position of the burnt out vehicle and arranged a car trailer which was used to move it further into the bush. He attended and did this with the help of witness 789 and informer witness RS1591297 (“witness 297”).

11. [17]

    On 1 July 2013, the police were called to a vehicle off a dirt track off Woodburn Road, Morton, which was completely destroyed by fire.

12. [18]

    The Crown alleges that in August 2016, RM told witness 297 that he had gone to the deceased’s home with two guys from Sydney and shot the deceased. He described shooting the deceased in the chest and the head with a .38. He said “It was a favour for Sami” and “We left the car with Sami and [witness 789] to burn it out that night in the bush”.

13. [19]

    In October 2016, RM told witness 297 that he was “pissed off” with the applicant. He said that he had given the guns he used for the deceased to the applicant and the guns had been put in bleach and damaged and they had cost $10,000. He also said that “Sami arranged Johnny’s murder, and came up to Sydney to have dinner with us and said Johnny was taking over the town and hanging with the Commos and shit”. He said he had since found out that the applicant was actually annoyed with the deceased over one relatively minor incident regarding drugs.

14. [20]

    The Crown alleges that witness 297 was provided with a listening device by the police and recorded conversations with RM. It will be necessary to refer to the content of those recordings in detail below.

15. [21]

    On 28 June 2017, RM told witness 297 that the police were looking at the applicant and at him as being responsible for the murder. He told witness 297 to “Tell Sami to fuck off to Finland in the next two weeks and keep his mouth shut or I'll put a bullet in his head. I’m sick of him going on about it”.

16. [22]

    Wright J held that these admissions made by RM to witness 297 were only admissible against RM and not against the applicant.

17. [23]

    The Crown alleges that on 3 July 2017 a conversation was recorded between witness 297 and the applicant. Witness 297 passed on the message from RM about going to Finland. The applicant said “I don’t care, it’s nothing to do with me. Robbie should be the one worried, he's the one who will get locked up for it. I will fight it”. On 5 July 2017, witness 297 spoke again to the applicant and the applicant said that witness 789 had more to worry about than him.

18. [24]

    Sometime after the murder, witness 171 visited a Mr “H” with the applicant in Ulladulla. The applicant pointed to the laundry sink and said “This is where they cleaned the guns” and that Mr H had “fucked up”.

19. [25]

    Around 28 November 2014, witness 171 asked the applicant if he had been involved in the murder and the applicant said “I got Robbie to do it”, because he had called his son a “spastic” and was trying to take over the town. He also said later in the conversation that it had nothing to do with him.

20. [26]

    In 2015, the applicant referred to a burnt out station wagon to witness 171, and said “That’s the car that they used out at Johnnie’s murder”. On another occasion the applicant said to witness 171 “I had to get it done, he was going to shoot me, he called [my son] a spastic, he met up and had an argument and he said he is going to get me first”.

21. [27]

    Wright J held that these admissions are only admissible against the applicant.

22. [28]

    On 23 November 2017, RM was arrested. The applicant was arrested the following day at Sydney airport, having purchased a ticket to Finland and progressed through to the Customs area.

23. [29]

    Wright J in a careful and thorough judgment summarised the submissions on the application thus (the applicant is referred to in his Honour’s judgment as “SH” and his co-accused is referred to as “RM”):

24. [30]

    After setting out the relevant statutory provisions and principles derived from the cases, Wright J found that where there is a real risk of positive injustice to an accused from a joint trial, separate trials should be ordered: R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965 at [62]. Wright J found that a real risk of positive injustice may arise where there are alleged admissions directly admissible against one accused but inadmissible against the other accused.

25. [31]

    In such a case, it has been accepted that the question of whether there is a real risk of positive injustice such that there should be separate trials can be answered by considering the three issues identified by Hunt J in R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep):

26. [32]

    The trial judge recorded that the applicant’s counsel put the argument for a separate trial on the basis of the principles derived from Middis. Accordingly, Wright J considered each of the three matters identified by Hunt J described above:

    1. (1)

       first, whether the evidence against SH should be considered to be significantly weaker than, and different from, the evidence admissible against RM;

    2. (2)

       secondly, whether the evidence of RM’s admissions contains material highly prejudicial to SH although not admissible against him;

    3. (3)

       thirdly, whether there is a real risk that a weaker Crown case against SH will be made significantly stronger by reason of the prejudicial but inadmissible material.

27. [33]

    Wright J commenced his analysis by observing that the joint criminal enterprise alleged by the Crown here does not involve SH and RM participating in the same acts in furtherance of the enterprise. Their roles are said to be essentially separate. As a result, evidence of the role of one of them does not necessarily bear on, or assist to prove, the fact of the other’s participation. On the Crown case, once SH had secured RM’s agreement to come down with his crew to the Ulladulla region and kill the deceased, SH’s role was primarily to arrange for a car to be provided for RM and his crew and to dispose of the car after the killing. By way of contrast, RM’s role in the enterprise, on the Crown case, was to shoot the deceased.

28. [34]

    Wright J found that it could not properly be said that the evidence admissible against SH in relation to the existence of the joint criminal enterprise and his role and participation in it was weak. It consists of direct evidence of what SH did and said as well as the significant admissions made by SH. Nor was the evidence against RM different in nature from the evidence against SH. In each case, there was direct evidence of actions taken by each co-accused and, if the evidence was accepted, it could be found that those actions were in furtherance of the joint criminal enterprise as alleged by the Crown. In addition, there were substantial admissions, some of which are recorded. Wright J observed that RM proposes to challenge the truthfulness and reliability of many of those admissions.

29. [35]

    Wright J found that in substantial part, the differences in the evidence concerning SH and RM and the differences in the admissions made by each of SH and RM arise out of, and reflect, their different roles in the alleged joint criminal enterprise. His Honour found that this was not a case where the evidence against SH should be considered to be significantly weaker than, and different from, the evidence admissible against RM. Consequently, this is not likely to be a case where the principles in Middis might lead to the conclusion that the matters ought to be heard and determined separately.

30. [36]

    About the second question, Wright J accepted that the admissions made by RM after the deceased was killed are not admissible against SH. His Honour accepted that there will be some prejudice to SH if evidence inadmissible against him is led in a joint trial and that evidence implicates him. His Honour was not satisfied, however, that the material in RM’s admissions should be characterised as so “highly prejudicial” to SH as to lead to there being a positive injustice if there were a joint trial. This was for essentially three reasons:

    1. (1)

       first, while RM’s admission as to how he shot the deceased is certainly graphic, that part of the admissions does not relate directly to SH at all. It is not part of the Crown case that SH was directly involved in the actual shooting of the deceased nor do RM’s admissions indicate in any way that SH was so involved. Thus, any prejudice to SH arising out of this part of the admissions by RM being led in evidence when they are inadmissible against SH would only arise indirectly or by association;

    2. (2)

       secondly, those aspects of the admissions which implicate SH in the joint criminal enterprise are essentially that RM participated as a favour for SH at SH’s request and that SH arranged the murder. The extent of any prejudice which these admissions, being inadmissible against SH, may cause SH if led in evidence during the trial must be assessed against the evidence admissible against SH in relation to those same issues. His Honour noted that there is direct evidence that SH organised to meet RM in Sydney and afterwards SH said, while arranging for a witness to meet RM and show RM where the car was before the deceased was killed, that RM and his crew “are coming down to fix [the deceased]”. There is also evidence of SH’s own admissions that he got RM “to do it and a couple of guys came down from Sydney” and that he, SH, “had to get it done” as the deceased “was going to shoot me, he called [my son] a spastic, he met up and had an argument and he said he is going to get me first”. This is not a case where there is no, or very weak, evidence admissible against SH that he participated in the alleged joint criminal enterprise. Thus, the prejudice that might potentially arise out of RM’s admissions in this regard is much more limited than might otherwise be the case;

    3. (3)

       thirdly, given the indirect and limited prejudice likely to arise, such prejudice would be adequately alleviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused.

31. [37]

    As to the third question posed in Middis, Wright J found that there did not appear to be a real risk that the “weaker Crown case” against SH will be made “immeasurably” or significantly stronger by reason of inadmissible, prejudicial material being before the jury. Given the nature and extent of the evidence admissible against SH, the Crown case against him should not be considered to be “weaker” in any relevant respect. Nor will it be made “immeasurably” or significantly stronger by reason of the inadmissible, prejudicial material, especially if appropriate directions are given to the jury concerning this evidence and the use that can properly be made of it. Wright J rejected the characterisation of the evidence inadmissible against SH as “exceptionally damning”. His Honour found that this was not a case like R v Pham [2004] NSWCCA 190, where the jury was, in effect, required, separately to form two assessments of the reliability of each of the Crown's principal witnesses, one assessment using the evidence of a record of interview and in the other, ignoring it.

Grounds of appeal

1. [38]

   The applicant relied upon the following grounds of appeal. At the hearing, ground 1 was not pressed and an additional ground was added.

   1. (1)

      The trial judge erred in that he concluded that the case against the applicant must be weaker than the case against RM for separate trials to be ordered.

   2. (2)

      The trial judge erred in that he concluded the principles set out in [7] and [8] of Pham did not apply.

   3. (3)

      The trial judge erred in concluding that “their roles are said to be essentially separate. As a result, evidence of the role of one of them does not necessarily bear on, or assist to prove, the fact of the others’ participation”.

   4. (4)

      The trial judge erred in failing to address the prejudice created by the fact that the admissions accord with the Crown case against the applicant and the co-accused and reflect their roles as alleged by the Crown.

Submissions of the parties

1. [39]

   The applicant submitted that the trial judge erred at [48] in concluding that the principles set out in [7] and [8] of Pham did not apply here.

2. [40]

   The applicant submitted that RM’s admissions were made to a Registered Source who will give evidence, not only against RM but also in a significant way against the applicant. It was submitted that the admissions alleged to be made by RM are accepted by RM as having been made and the issue in RM’s trial is whether the admissions were honest or whether they were untrue but made for the purpose of intimidating the witness.

3. [41]

   The applicant submitted that the fact that RM agreed he made the admissions will, almost inevitably, lead to the Crown submitting they otherwise support the reliability of the witness. It was submitted that it was inevitable that the jury will reason in that way. It was submitted that this is the type of prejudice that was raised in Pham. The jury will be entitled to use it to support the reliability of the witness in the evidence given against RM but not the reliability of the witness in the evidence given against the applicant. In addition to the prejudice from the admissions themselves, this is prejudice that cannot be overcome by directions.

4. [42]

   The applicant submitted that even if Pham established no separate principle, [48] of his Honour’s reasons was deficient in failing to address the issue of cross-reliability. The jury would not understand a direction that they could use certain evidence against one accused to make witness 297’s evidence more reliable but once they found that witness to be more reliable because of that evidence they could not find them to be more reliable in the applicant’s case.

5. [43]

   The applicant submitted that the nature of the admissions supports other witnesses who will give evidence against RM and the applicant. They can be used to support the evidence of those witnesses in consideration of the case against RM but not against the applicant. The applicant submitted that this is the type of prejudice that was not considered by the trial judge as a result of his failure to recognise the use that could be made of the admissions as bolstering the reliability of each of the informer witnesses.

6. [44]

   Grounds 3 and 4 were argued together. The applicant submitted that the trial judge erred in concluding at [33] that “their roles are said to be essentially separate. As a result, evidence of the role of one of them does not necessarily bear on, or assist to prove, the fact of the others’ participation”.

7. [45]

   The applicant submitted that this is a misunderstanding of how the jury could use acts in furtherance of a joint enterprise against all participants. Each act committed in furtherance can be used by the jury against each participant, provided their involvement is otherwise proved. In this case it is conceded that there is sufficient independent evidence of the applicant’s involvement to ensure acts in furtherance by RM would be admissible against him.

8. [46]

   The applicant submitted that this error led the trial judge to a misunderstanding of the prejudice to the applicant of RM’s admissions. It was submitted that the prejudice from RM’s admissions about the nature of the shooting that, on the Crown case, was ordered by the applicant, is more than “indirectly or by association”.

9. [47]

   The applicant submitted that this error also led the trial judge to a misunderstanding of the significance of the prejudice of the admissions, which reflect the Crown case. What is admitted by RM is consistent with what the Crown alleges is the role of each of the accused and there is substantial prejudice in admissions that reflect the Crown case which are otherwise inadmissible against the applicant.

10. [48]

    The applicant submitted that the trial judge had missed the point that the admissions made by RM, admissible only against him, were “entirely consistent with the Crown case”. It was submitted that his Honour had missed the point that what RM says is what the Crown says. It was submitted that there is likely to be a positive injustice in that RM’s admissions are effectively what the Crown case is. It was submitted to be highly prejudicial to have one co-accused in the trial saying what the Crown says occurred is right.

11. [49]

    The Crown submitted that legal principles applicable to the question of whether the trials should be severed were not in dispute in the proceedings below, and the applicant does not appear to complain that there is any error in his Honour's statement of the applicable principles. Rather, the applicant’s challenge is to the trial judge’s application of those principles to the facts of this case. It was submitted that the applicant has not shown that there is any House v The King error or indeed any error in the trial judge’s refusal to order separate trials.

12. [50]

    The Crown submitted that it is necessary to isolate the principles that the applicant contends the trial judge was bound to apply. It was submitted that in Pham, the appeal was upheld on the basis that a miscarriage of justice had occurred by reason of the appellant’s trial being held jointly with that of his brother and a third co-offender. The Crown submitted that [7] and [8] of Pham, relied upon by the applicant here, set out RS Hulme J’s reasoning with respect to the specific facts and circumstances of the case in Pham. In that case RS Hulme J did “not believe that the jury could, in this case, separately form 2 assessments of the reliability of each of the Crown’s principal witnesses, one assessment using the evidence of the record of interview and the other, by ignoring it”: Pham at [8].

13. [51]

    The Crown submitted that these passages from Pham are not statements of principle, and the trial judge was not bound to apply them as though they were. Accordingly, error in the nature of a House v The King error is not disclosed in the manner that this ground is pleaded. Neither his Honour's approach nor conclusion was erroneous. The Crown submitted that Wright J properly considered the applicant’s submission that the present case was factually analogous with Pham and the applicant’s contention that the same result ought be reached. His Honour at [48] concluded that the case was not relevantly similar to Pham.

14. [52]

    The Crown submitted that such a conclusion was well open to his Honour in the proper exercise of his discretion, on the facts and evidence in this case. It was submitted that Pham was distinguishable on a number of bases. The Crown submitted that the trial judge was correct to hold at [48] that “this was not a case, like Pham, where the jury was, in effect, required, separately to form two assessments of the reliability of each of the Crown's principal witnesses, one assessment using the evidence of an interview and the other, by ignoring it”.

15. [53]

    The Crown submitted that the task for a properly directed jury in separately assessing the evidence admissible against RM and the evidence admissible against the applicant given by witness 297 is significantly different from and much more straightforward than the circumstances that pertained in Pham, as correctly recognised by Wright J.

16. [54]

    The Crown submitted that the trial judgment’s statement at [33] that “their roles are said to be essentially separate. As a result, evidence of the role of one of them does not necessarily bear on, or assist to prove, the fact of the others’ participation” is a correct statement of both fact and principle.

17. [55]

    The Crown submitted that the trial judge did not misunderstand how a jury may use acts in furtherance of a joint criminal enterprise against all participants, in a legal sense, once participation in the joint criminal enterprise is otherwise proved. RM’s role (shooting the deceased) is physically separate from the applicant’s role (providing and disposing of the car), and therefore, as his Honour stated, evidence directly concerning the circumstances of the shooting does not necessarily assist in proving that the applicant directed or requested the shooting, nor that he procured a vehicle to use in the offence. Even if the jury was ultimately satisfied that RM carried out the shooting, this would not necessitate a conclusion that it was done as part of an agreement with the applicant in the circumstances of this case. It was submitted that his Honour’s conclusion was not only open, but was correct and was necessary and relevant background to the analysis which followed.

18. [56]

    The Crown submitted that the trial judge did not misunderstand the nature of the prejudice to the applicant arising from RM’s admissions. The prejudice arising from evidence concerning the actual shooting was only indirect, as the trial judge held at [42] because it could not (even if improperly taken into account by the jury) go to establishing that the applicant had carried out any aspect of his role. Further, the fact that the roles were separate and not inextricably linked is relevant to assessing the difficulty or otherwise for a jury in performing separate assessments of different aspects of the evidence in the trials against each of the co-accused and the utility of directions in ameliorating prejudice. It was submitted that his Honour assessed the extent of the prejudice, and whether the prejudice (which must always exist, and which his Honour acknowledged so existed in this case) was such as to lead to a positive injustice if there was a joint trial. This discretionary assessment was carried out properly and in accordance with correct principles.

19. [57]

    The Crown submitted that there is no error in the House v The King sense because it must be the case that evidence of the role of one of the co-accused does not necessarily bear on or assist to prove a fact of each other’s participation. Ultimately the Crown submitted that the question of the extent of prejudice is fundamentally a weighing exercise. It is fundamentally part of the discretionary judgment that the trial judge has to carry out and his Honour did so here. The Crown submitted that the fact that the physical roles are separate in this case was a relevant consideration for his Honour to take into account in considering whether jury directions can be effectively crafted. This is because it is much easier to explain to a jury how they can take into account different parts of evidence when they are about essentially separate topics than it is when the participants have acted together physically in the carrying out of the joint criminal enterprise.

Consideration

1. [58]

   Section 29 of the Criminal Procedure Act 1986 (NSW) provides:

2. [59]

   In Webb v The Queen; Hay v The Queen (1994) 181 CLR 41 at 88-89; [1994] HCA 30, Toohey J (with whom Mason CJ and McHugh J agreed) held:

3. [60]

   It is clear from this passage from Webb that some prejudice to an accused is almost inevitable in any joint trial and that is a factor which must be taken into account in striking the necessary balance. In Trotter v R [2016] NSWCCA 57, this Court considered the leading authorities on when a separate trial should be ordered and said:

4. [61]

   As Webb at 89 makes clear, where prejudice may arise because there is evidence which is admissible against one accused but not the other, that prejudice may be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused. Jury trials proceed on the assumption that the jury will obey any direction which is given by a trial judge: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], [31].

5. [62]

   An appeal from an interlocutory judgment on an application for separate trials is subject to the degree of appellate restraint identified in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40: see DAO v R [2011] NSWCCA 63 at [70] per Spigelman CJ, [78] per Allsop P; DSJ v R; NS v R [2014] NSWCCA 77 at [11].

6. [63]

   In framing the relevant issue, it must be understood that it is clear that the trial judge here addressed each of the relevant principles in Middis. The applicant’s counsel asked his Honour to apply Middis. Those principles have been held on numerous occasions in this Court to be the correct principles to apply when addressing the question of separate trials for offences committed jointly.

7. [64]

   The question raised in terms by ground 2 is whether in Pham this Court identified a different principle which must be applied in applications for separate trials in the case of a jointly committed offence either instead of, or in addition to, the Middis test.

8. [65]

   The passage relied upon by the applicant from Pham must be understood in its context. We will set out that passage from the judgment of RS Hulme J in full:

9. [66]

   The context for those remarks is this. In Pham, Mr Pham was tried for murder together with, relevantly, his brother, Mr Phong. It was common ground that Messrs Pham and Phong were in a car with the deceased which was driven to Endeavour Oval in Sydney where the deceased was taken from the car and executed. The principal evidence against Mr Pham was given by Mr Tran, another passenger in the car who fired the fatal shot and Mr Lam, another passenger in the car. Mr Phong had participated in a record of interview in which he inculpated himself and gave answers which M Adams J found confirmed, from a relevantly independent source, the evidence of Mr Tran. Statements made in that record of interview were not admissible against Mr Pham. M Adams J expressly addressed the Middis test. His Honour found that the case against Mr Pham was based principally on the evidence of the two informer witnesses, whose evidence was “significantly compromised”. The critical evidence not admissible against Mr Pham comprised inculpatory statements made by Mr Phong in a formal record of interview. His Honour concluded that the jury would have found it virtually impossible in considering Mr Pham’s case to disregard the statements made by Mr Phong in the record of interview which supported the evidence of Messrs Tran and Lam.

10. [67]

    It is important to understand that M Adams J’s conclusion is not the ratio of Pham. RS Hulme J, with whom Spigelman CJ relevantly agreed, commenced by observing that it was not in dispute in Pham that the relevant principles governing the exercise of a trial judge’s discretion when asked to grant a separate trial were set out in Middis. At [6] RS Hulme J held that whilst there was “a deal of weight” in the argument that when considering the case against Mr Pham the jury could not put out of its mind the record of interview with Mr Phong, his Honour did not need to decide that question. On the application of the Middis test, his Honour observed: “In all cases it is a situation where one needs to consider the significance of the various aspects of the evidence”. The fact that his Honour was not joining with M Adams J’s conclusion is made clear by the introductory words in [7]: “in this case there is a further factor which to my mind compels the conclusion that the trial, so far as the Appellant is concerned, miscarried”. That additional factor was the remarks made by the Crown Prosecutor to the jury to the effect that the accounts given by Messrs Tran and Lam were supported by the statements in Mr Phong’s record of interview. By reason of that matter, RS Hulme J held that the jury could not, in this case, separately form two assessments of the reliability of each of the Crown’s principal witnesses, one assessment using the evidence of the interview and the other, by ignoring it. The trial thus miscarried.

11. [68]

    In our view Pham did not establish an additional or different test to that described in Middis. At [5] RS Hulme J, with whom Spigelman CJ relevantly agreed, said as much in terms: “The Appellant submitted, and the Crown did not dispute, that the relevant principles governing the exercise of a trial judge’s discretion when asked to grant a separate trial, are set out in R v Middis”. RS Hulme J’s conclusions in Pham addressed the specific facts and circumstances of that case by reference to the Middis test. The passages at [7] and [8] of Pham are not statements identifying a separate principle and the trial judge was not bound to apply them as though they were. It follows that no House v The King error in the terms alleged by ground 2 has been established.

12. [69]

    Although this was not the way ground 2 of the notice of appeal was framed, and the applicant disclaimed reliance on ground 4 for this purpose, the second way the matters raised in relation to ground 2 can be understood is that the trial judge fell into error in failing to find that a positive injustice would be caused to the applicant in a joint trial because this was a case where the jury would be confused by being asked to form two separate assessments of the credibility of the informer witnesses and jury directions could not adequately address this prejudice. Addressing that submission, which we are prepared to accept arises by reason of a combination of grounds 2 and 4 (although not raised by those grounds in terms), involves a close consideration of the evidence and the balancing of that evidence conducted by the trial judge.

13. [70]

    The starting point for addressing this submission is the context of the trial judge’s detailed consideration, the week before the separate trial debate, of the cross-admissibility of all of the informer witnesses’ evidence in the trial of the applicant and RM. His Honour was plainly aware of the issues raised by the precise statements made by the informer witnesses, including the statements attributed by witness 297 to RM about the applicant. His Honour said at [48]:

14. [71]

    The trial judge did not in this passage explain in detail the differences between this case and Pham. However, given the context and the lengthy written judgment delivered contemporaneously by his Honour addressing issues of cross-admissibility of admissions made to informer witnesses, this conclusion necessarily involved consideration of the issues raised by this case. His Honour accepted that some prejudice to the applicant would be occasioned by a joint trial in circumstances where some of the admissions made by RM, which were not admissible against the applicant, nevertheless implicated the applicant. That conclusion necessarily involved a finding that the admissions made by RM, which were not admissible against the applicant, were consistent with the Crown case. There is, however, an aspect of the applicant’s written submissions before the trial judge which was at the forefront of the applicant’s submissions in this Court. In understanding the force of the applicant’s submissions, two helpful aide memoire documents were made available to this Court. The first identified the paragraphs of witness 297’s statement which contained admissions allegedly made by RM which were not admissible against the applicant. The second identified passages from each of the informer witnesses’ statements relevant to the same subject matter as the admissions allegedly made by RM, recorded in paragraphs 77, 78 and 101 of witness 297’s statement, which are inadmissible against the applicant and which might affect the reliability of the evidence of each of the informer witnesses, including witness 297.

15. [72]

    I will set out in full the paragraphs of witness 297’s statement which are critical to this argument:

16. [73]

    The critical matters inadmissible against the applicant in this paragraph are that the murder was committed by RM as a “favour for Sami” and that the payment for the participants in the murder was “Two pounds of cannabis, that’s it”.

17. [74]

    The critical matters inadmissible against the applicant in this paragraph are that the guns used to murder the deceased were given to the applicant and left in bleach for too long. They cost $10,000. RM’s crew only received “two pounds of pot” and RM agreed to borrow “a couple of grand” to pay the participants. It was also important that RM is alleged to have said that “Sami arranged Johnny’s murder, and came up to Sydney to have dinner with us and said Johnny was taking over the town and hanging with the Commos and shit”. RM says he would not have murdered the deceased if he had known that the applicant’s motivation was the incident with a minor drug dealer described at [9] above.

18. [75]

    An inference may be drawn from this evidence that RM has something to fear from the applicant being arrested and disclosing material things about the murder of the deceased. It was also important in that part of the Crown case is that the applicant was apprehended attempting to flee to Finland to avoid arrest.

19. [76]

    We have concluded that the premise of at least one way the applicant put his argument, that RM has admitted that he said the things attributed to him in witness 297’s statement, is unsound.

20. [77]

    There is a statement made by RM that deals, at least in part, with events relevant to the murder charge against him.

21. [78]

    That statement, commences at paragraph 62 to deal with witness 297. RM stated that he started seeing witness 297 regularly in 2016.

22. [79]

    As the Crown correctly pointed out, it is noteworthy that in using this statement to predict what RM will say about witness 297’s evidence there is no reference to the applicant. RM says, “I ended up telling [witness 297] that I shot Johnny the night Johnny was murdered. I said I organised for some boys to come down from Sydney with some guns.” Contrary to the applicant’s submission, RM has not admitted that he said anything to witness 297 about the applicant. The inference the applicant asks the Court to draw, that if RM proposed to deny those parts of the conversation with witness 297 where he implicated the applicant he would have done so here, is not one we would be prepared, without more, to draw. RM’s statement was an informer witness statement prepared for another purpose. There was certainly no House v The King error by Wright J in failing to draw the inference that RM admitted the contents of each of paragraphs 77, 78 and 101 of witness 297’s statement. The only safe inference which can be drawn about RM’s case, based on this statement, is that the things he told witness 297 about the murder of the deceased were not true.

23. [80]

    It follows that this aspect of the applicant’s case about the critical relevance of admissions allegedly made by RM about the applicant is not made out. The applicant failed to demonstrate that in so doing the admissions allegedly made to witness 297 by RM about the applicant may impermissibly be given additional weight by RM’s acceptance of the content of those admissions. On analysis of “the significance of the various aspects of the evidence” in this case, the suggested similarity between the record of interview in Pham and the admissions allegedly made by RM to witness 297 does not arise.

24. [81]

    That conclusion, however, is not dispositive of the question in this case. There remains to consider the listening device material involving RM and witness 297 and the admissions made by the applicant to all of the informer witnesses.

25. [82]

    The listening device material may be dealt with relatively quickly. It was common ground between the applicant and the Crown that what is recorded on the listening devices involving RM and witness 297 is much less detailed as regards the applicant than the version contained in witness 297’s statement at paragraphs 77, 78 and 101. The three critical matters relied upon by the applicant drawn from the listening device material relate to the car, involvement in the arrangement of the murder by the applicant (including payment) and the applicant’s motive to participate.

26. [83]

    The relevant listening device transcript with respect to the car makes reference to the applicant in a conversation touching, in part, upon a car “up in that track”. However, no part of the recorded conversation contains any level of detail about the applicant obtaining the car or leaving the car to be collected by RM or disposing of the car. This is not an issue where the reliability of the admissions witness 297 says that RM made are bolstered in any material way by the recording.

27. [84]

    The relevant listening device transcript contains some material including an allegation that the murder was arranged by the applicant, however:

    1. (1)

       the first reference to the applicant, “I had to stop him from doing that to Sami”, is, in context, a complaint made by somebody about not receiving payment;

    2. (2)

       RM later in that conversation describes a shooting he says that he carried out and attributes to a third person the statement that “not only should he pay for our guns, he should be fucking paying us, ya know, something!”;

    3. (3)

       there is then a reference to the applicant, in a quite different context. On one view, perhaps, that conversation turns to the subject of payment to another person for assistance in murdering the deceased. RM may, perhaps, be referring to the applicant but RM agreed with the proposition that “If you go to fucking jail over this, he [the applicant] would sit out”. That is, the applicant is uncaring and would not go to jail;

    4. (4)

       the recording finishes with the most specific reference to relevant events, being a discussion of the deceased “flush[ing] the shit [which in context means drugs] down the toilet”. On one view this reference to flushing drugs down the toilet provides a reason in hindsight for the applicant to ask RM to murder the deceased and the reference “When I heard it was over this that made me even wilder” is consistent with witness 297’s statement that RM told him that he did not think the reason to murder the deceased was good enough in the end. The fact that the jury might regard this inadmissible evidence as consistent with the Crown case against the applicant is no doubt prejudicial.

28. [85]

    There is nothing of relevance in the listening device material regarding paragraph 101 of witness 297’s statement and the applicant being warned to flee to Finland.

29. [86]

    The admissions allegedly made by RM about the applicant’s role recorded by witness 297 give rise to some prejudice to the applicant but if this evidence was the only matter relevant to prejudice we are not persuaded that Wright J fell into House v The King error in determining that the prejudice could be addressed by careful directions to the jury. The recorded admissions are much less detailed than those contained in witness 297’s statement. There are also a number of equivocal statements about the applicant’s liability contained in the recordings. The extent to which the reliability of the admissions that witness 297 says that RM made is bolstered by the recording is limited. His Honour weighed the prejudice to the applicant arising from the recordings and concluded, in accordance with Webb, that it would be possible for the jury to understand the case against each accused on the basis of careful instructions he proposed to give them.

30. [87]

    The final issue, however, is one which we have concluded his Honour failed specifically to address the applicant’s complaint that the nature of the admissions made by RM (inadmissible against the applicant) supports the evidence given by other witnesses who will give evidence in the applicant’s case. In fairness to his Honour, although this argument was made in the applicant’s written submissions below, it emerged with much greater clarity in this Court in particular by reference to the aide memoire entitled “Admissions Used to Support Witnesses”. Nevertheless, the failure to address this aspect of the applicant’s case amounts to a failure to take into a material consideration within the meaning of House v The King and this Court must re-exercise the discretion.

31. [88]

    The first three references in the aide memoire are to witness 297’s statement and admissions allegedly made by the applicant:

    1. (1)

       The first reference is to something allegedly said by the applicant about the deceased;

    2. (2)

       The second reference is to something else the applicant allegedly said to witness 297 to the effect that the deceased and another man were “going around saying this is their town. They are going around bashing people”;

    3. (3)

       The third reference relied upon is a lengthy passage in which witness 297 explains his involvement with the applicant in moving the burnt out vehicle which was used in the murder of the deceased.

32. [89]

    The applicant is correct to submit that all of this evidence, inadmissible against the applicant, is consistent with the Crown case. If this were the only evidence in this category, however, we would not conclude that a joint trial was relevantly unfair. It is not, however, the end of the possible prejudice.

33. [90]

    The second series of references relate to witness 789:

    1. (1)

       The first references are to things the witness observed about the applicant and the deceased and to conversations with the applicant. The applicant allegedly said of the deceased “they are taking my trade” which in context meant drug trade. If accepted, this evidence is relevant to motive;

    2. (2)

       The second reference is, on its face, an admission directly relevant to the alleged joint criminal enterprise. The applicant is alleged to have said “I [am] sick of [the deceased] running around and that, [RM] and his crew are coming down to fix [the deceased]”. That is a critical admission consistent with the Crown case;

    3. (3)

       The third series of references are to the witness carrying out the wishes of the applicant in arranging to move the car which was ultimately used in the murder of the deceased and taking steps to have it subsequently burnt. If accepted, this evidence provides cogent support for the applicant’s involvement in the joint criminal enterprise alleged;

    4. (4)

       The fourth series of references is to evidence that the witness was asked by the applicant on the morning after the murder to obtain two bags of “pot” for him. This is consistent with the Crown case and with the admissions made by RM which are inadmissible against the applicant. The trial judge accepted that there was some prejudice to the applicant in the joint trial and the link between the evidence which is admissible and the evidence from RM which is not provides an example of such prejudice;

    5. (5)

       The fifth reference is to an alleged admission by the applicant that “RM went too far and shot [the deceased]”.

34. [91]

    This second series of admissions, in combination with those allegedly made to witness 297, raise a very difficult question. The reliability of the evidence given by witness 789 will be in contest in the applicant’s case. The evidence, if accepted, will be devastating for the applicant’s prospects of securing an acquittal. The evidence given by witness 297 inadmissible against the applicant recorded at [72]-[75] above is consistent in a number of important respects with the evidence of alleged admissions made by the applicant to witness 789. In our view, there is a significant risk that this inadmissible evidence, being completely consistent with the Crown case, will be used by the jury to reason not only that witness 297’s evidence is reliable but also that witness 789’s evidence of admissions made by the applicant is reliable. The risk that the jury might reason in that way enhances the risk that a joint trial may lead to positive injustice to the applicant. That, however, is not the end of the matter.

35. [92]

    The final series of references relate to witness 171:

    1. (1)

       The first reference is to the witness allegedly attending Mr H’s house with the applicant. The applicant allegedly said “This is where they cleaned the guns”. The applicant then allegedly made derogatory remarks about Mr H in his presence and subsequently explained that Mr H had not cleaned the guns properly. If accepted, this evidence provides cogent support for the applicant’s involvement in the joint criminal enterprise alleged;

    2. (2)

       The second reference refers to a conversation in which the applicant allegedly told the witness that “I got [RM] to do it, and a couple of guys from Sydney came down”. If accepted, this evidence provides cogent support for the applicant’s involvement in the joint criminal enterprise alleged;

    3. (3)

       The third reference is to a conversation with the applicant wherein the applicant, in answer to a question “Why did you do it” allegedly explained that the deceased had threatened to shoot the applicant and had called the applicant’s son a “spastic”. The applicant said, “[The deceased] was going to get me or I was going to get [the deceased]”. If accepted, this evidence provides cogent support for the applicant’s involvement in the joint criminal enterprise alleged.

36. [93]

    The reliability of the evidence given by witness 171 will be in contest in the applicant’s case. The evidence, if accepted, will be devastating for the applicant’s prospects of securing an acquittal. The evidence given by witness 297 inadmissible against the applicant recorded at [72]-[75] above is also consistent in a number of important respects with the evidence of alleged admissions made by the applicant to witness 171. There is a significant risk that despite careful directions, that inadmissible evidence, being completely consistent with the Crown case, will be used by the jury to reason not only that witness 297’s evidence is reliable but also that witness 789 and 171’s evidence of admissions made by the applicant is reliable.

37. [94]

    As made clear by RS Hulme J in Pham, the question of potential unfairness of a joint trial by reason of admissions made by one accused which are not admissible against a co-accused is highly fact dependant. In reaching an “opinion that the matters ought to be heard and determined separately in the interests of justice” as required by s 29 of the Criminal Procedure Act, the Court must necessarily consider the prejudice identified against all of the evidence and consider whether that prejudice can be obviated by careful directions to the jury.

38. [95]

    Despite the careful and thorough analysis of the issues by the trial judge, we have come to the view that this is a case where despite what would no doubt be careful directions, the risk that the jury would be confused about the assessments of the reliability of the informer witnesses they will be asked to undertake is too great. The applicant has demonstrated a significant potential for even a properly instructed jury in a joint trial in this case unfairly to be influenced by the evidence that they will be told to disregard. The existence of that prospect should be foreclosed as there is a real risk of positive injustice to the applicant.

39. [96]

    This ground of appeal should be allowed.

40. [97]

    Given the conclusion we have reached ground 3 may be dealt with briefly. It will be recalled that in ground 3 the applicant complains about Wright J’s finding at [33] that “their roles are said to be essentially separate. As a result, evidence of the role of one of them does not necessarily bear on, or assist to prove, the fact of the others’ participation”. In our view this was a correct statement.

41. [98]

    The question of the evidence that could be used to prove the acts of each individual participant, carried out in furtherance of the joint criminal enterprise, was at the forefront of Wright J’s consideration. His Honour explained that RM’s role (shooting the deceased) was physically separate from the applicant’s role (providing and disposing of the car). His Honour was correct to conclude that evidence directly concerning the circumstances of the shooting does not necessarily assist in proving that the applicant directed or requested the shooting, nor that he procured a vehicle to use in the offence. As the Crown pointed out, even if the jury were ultimately satisfied that RM carried out the shooting, this would not necessitate a conclusion that it was done as part of an agreement with the applicant in the circumstances of this case. Wright J’s conclusion was not only open, but was correct.

42. [99]

    The fact that the physical roles of the co-accused are separate in this case was a relevant consideration for his Honour to take into account in considering whether jury directions can be effectively crafted. It is obviously much easier to explain to a jury how they can take into account different parts of evidence when they are about discrete topics than it is when the participants have acted together physically in the carrying out of the joint criminal enterprise as was the case in Pham.

43. [100]

    Although we have concluded that there should be separate trials in this matter, ground 3 should be dismissed.

44. [101]

    We have addressed ground 4 above in considering ground 2. Nothing further need be said.

Conclusion

1. [102]

   For the foregoing reasons the orders of the Court are:

   1. (1)

      Leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) be granted;

   2. (2)

      Appeal allowed;

   3. (3)

      Set aside Order 1 made by Wright J on 27 August 2019 dismissing the application for a trial separate from the trial of the co-accused, Robert McCloskey;

   4. (4)

      In lieu thereof order that the applicant be tried separately from his co-accused, Robert McCloskey.