R v Roff

Raymond Roff (the applicant) and Sarah Tarrant have been jointly indicted for the murder of Alois Rez. The applicant seeks an order under s 21(2)(b) of the Criminal Procedure Act 1986 (NSW) that he be tried separately from Ms Tarrant.

Mr Rez was the de-facto partner of Ms Tarrant. He was reported missing on 2 August 2013 by his mother and has not been seen since 28 July 2013. The evidence suggests that Ms Tarrant and/or the applicant were the last people to see him alive. The prosecution case is that the applicant and Ms Tarrant were in a sexual relationship, that she was pregnant with his child, that Ms Tarrant was unhappy in her relationship with Mr Rez and that the two accused agreed to kill him. The Crown alleges that on the evening of 28 July 2013 Ms Tarrant administered some form of sedative to Mr Rez and that the applicant attended and killed him at some time between 1:54 and 3:28 am on 29 July 2013. The timing is based on a series of text messages between the telephone services of the two accused. The Crown will assert that after Mr Rez was killed, the applicant disposed of his body while Ms Tarrant took steps to cover up the crime, specifically by hosing down the driveway.

On arraignment, both accused pleaded not guilty to murder. However, Ms Tarrant entered a plea of guilty to manslaughter. The basis of this plea was that she has a partial defence under s 23A Crimes Act 1900 (NSW). That is, she will assert that at the time of the killing she was substantially impaired by an abnormality of mind and that this impairment was so substantial that her liability for murder should be reduced to manslaughter.

The applicant submits that he will be embarrassed and prejudiced in the conduct of his defence if he is tried together with Ms Tarrant. This submission is based predominantly on the contents of a recorded interview that will be tendered in Ms Tarrant’s case but which is not admissible against the applicant. It is also based on the fact that, because of the contents of that interview and the defence that Ms Tarrant will conduct, the issues in the two cases are different and the potential prejudice to the applicant cannot be overcome by direction to the jury. The Crown opposes the application and submits that that the admissions made by Ms Tarrant are all supported by other evidence in the case, that the facts alleged can be proved by other evidence and that any prejudice arising can be cured by direction. The Crown relies on the strength of the circumstantial case against both accused and on the body of authority in which the appellate Courts have emphasised the capacity of juries to follow judicial directions, to put aside prejudicial evidence and to compartmentalise evidence where parts are admissible against one accused person but not admissible against another.

The question of whether to make an order under s 21(2)(b) is a discretionary one but one that is based on well-established principles. I have concluded that the trials of the two accused should be separated and I will make orders accordingly. These are my reasons for that conclusion.

The applicant relied on an affidavit of his solicitor. That affidavit provides a very brief summary of Ms Tarrant’s recorded interview and annexes the transcript of that interview. The transcript is a document of 112 pages comprising around 1,200 questions and answers.

The Crown tendered a bundle of documents which became exhibit A. The bundle consisted of

The circumstantial case against the two accused appears to be a powerful one. Senior Counsel for the applicant concedes that this is so. The case is summarised in the facts sheet.

Perhaps the most potent evidence comes in the record of the exchange of text messages late in the evening of 28 July and early the following morning. That part of the evidence is open to the interpretation, if not the inescapable inference, that in the evening of 28 July 2013, Ms Tarrant (“T”) had administered a sedative to Mr Rez and was reporting to the applicant (“R”) as to when it took effect. The inference also arises that it was understood that once the sedative took hold, Mr Roff would attend the premises. For example:

There is then a gap in text message exchange form 1:54am until 3:28am. The Crown will ask the jury to draw an inference that during this period the applicant attended the premises and killed Mr Rez. The applicant denies this. In her recorded interview, Ms Tarrant says that she saw the applicant at the premises at that time. After the gap, there is a communication at 3:31AM when the applicant asks Ms Tarrant “did you hose the drive?” and she replies “I will now”. Around 7 minutes later she texts “have now don’t know whether its all gone” and the applicant responded: “That ok no need to report missing straight away.”

Apart from the text messages there are other pieces of evidence that implicate the two accused. This includes evidence suggesting that they were romantically attached to one another. For example, the telephone of the applicant listed Ms Tarrant as “my hot young thing” (or similar). An item of Ms Tarrant’s underwear and a love letter was located at the applicant’s house. There is evidence that the applicant made a report to police of a domestic incident between Ms Tarrant and Mr Rez on 24 July 2013. The applicant initially denied having a relationship with Ms Tarrant but subsequently made admissions when confronted with those items of evidence. A pregnancy kit was located at other premises owned by the applicant. The prosecution will allege that this belonged to Ms Tarrant and that she was pregnant with the applicant’s child.

There is also forensic evidence of various kinds. Examination of the home uncovered a droplet of blood in the bedroom of Mr Rez and on the driveway. Blood was also located in the boot of the applicant’s car. Around two weeks later, items of bedding were located in the Macquarie River that matched the description of bedding in the bedroom of Mr Rez. A blanket was also found that had been repaired with blue thread. Sewing machines found at the applicant’s home contained a similar blue thread. Dog hairs were located both on the bedding and also in the applicant’s car. The applicant is a dog owner. DNA was gathered from Mr Rez’s toothbrush and from some of his relatives. The blood found at the house is consistent with the likely DNA profile of a child of Mrs Rez.

Records from telephone cell towers indicate movement of the applicant’s mobile telephone in or near the towns of Narromine, Trangie and Nyngan between the hours of 1.19am and 5.28am. This suggests, according the Crown case, that the applicant gave a false account of his movements. There is also evidence from CCTV cameras in the vicinity which accords with the prosecution theory of the applicant’s movements at the relevant time.

A neighbour provided a statement that places the applicant’s car outside Ms Tarrant’s premises “after 10:30pm” on the evening in question. Another resident saw Mr Rez on the evening of 28 July 2013 and thought he was affected by some kind of drug.

Unregistered firearms were located at the applicant’s premises. An empty packet of Temaze (a sleeping tablet) prescribed to the applicant’s dead wife was located in his car.

It is likely that the prosecution will also rely on consciousness of guilt manifested in the applicant’s initial denial of having a romantic relationship with Ms Tarrant.

The Crown will also rely on the evidence of friends and family of Mr Rez that they have not seen him since 28 July 2013. Records show that his mobile telephone was active up until that date but has not been used since.

The foregoing, which is no more than a potted outline of the case that the Crown proposes to mount, demonstrates that the concession made by Senior Counsel as to the strength of the Crown case is an appropriate one. It also bears out the Crown’s submission that most of what Ms Tarrant admitted in her interview is able to be proved by inferences arising from this impressive body of circumstantial evidence.

THE DEFENCE CASE AND STATEMENTS MADE BY THE ACCUSED TO POLICE

The applicant’s statements to police

The applicant made a number of inconsistent statements to the police. He made a statement as part of the missing person investigation on 2 August 2013, was interrogated extensively when a crime scene warrant was executed at his home on 9 August 2013 and was subject to a formal electronically recorded interview on 10 August 2013. For the purpose of this application I will assume the admissibility of all of these statements. In the first statement he provided the following account of his movements and the last time he saw Mr Rez:

In the course of the execution of the crime scene warrant on 9 August 2013 the applicant was asked and answered many questions. He confirmed the contents of the earlier statement and initially denied being in a relationship with Ms Tarrant. Later he said that the “Sarah” referred to in a love letter located by police was a woman he knew from Gosford that he had met over the Internet. Later still, he admitted that he and Ms Tarrant were involved in a “brief affair” but they had last had sex around 3-4 months earlier. He said there would “probably” be a few “love messages” located on Ms Tarrant’s telephone. He said that Mr Rez’ blood may be a piece of rope found in the back of his car because Mr Rez had cut himself when they were fencing together. Confronted with evidence that his car had been seen at the premises, he denied that he had been there at around the relevant time. He denied burying Mr Rez’s body or dumping it in the river.

In the electronically recorded interview the following day, the applicant admitted saying things recorded in the earlier statement. He admitted that he and Ms Tarrant had an affair, saying that they had had sex around 5 times in “the Winnebago” and once in his own bed. He described a disability in his shoulder that prevented him from lifting heavy objects. He agreed there was “a lot of texting” and said the last sexual messages were 2-3 weeks earlier. He said that his contacts had recorded Ms Tarrant as “Hot, sexy yummy mummy” but that he had changed this to “Sarah Rez” more recently. He described a conflict with Mr Rez because the latter had suspected some contact between the applicant and Ms Tarrant. He provided a detailed account of his movements at relevant times. He confirmed that Mr Rez had cut himself when fencing and that his blood was likely to be on the rope. He denied being at the deceased (and Ms Tarrant’s) premises at around midnight on 28 July 2013. He said “I never went and got in my car, I never went and took it for a drive, I never done anything.” He was confronted with some text messages and denied the sinister explanations that the police attributed to them. He admitted having a number of prescription drugs at his premises but denied providing Ms Tarrant with sleeping tablets.

The police advised the applicant of the admissions Ms Tarrant had made and then asked him if he knew who was responsible for the killing of Alois Rez. He said (Q 1261) “No I do not” but, from the things police had told him, he said he suspected Sarah Tarrant.

At all times, the applicant denied attending the premises at the relevant time and denied any involvement in the disappearance or killing of Mr Rez.

Ms Tarrant’s case and interview with police.

Ms Tarrant will admit all of the elements of murder and undertake to establish the defence under s 23A. Her case will involve accepting the guilty inferences that the prosecution will ask the jury to draw from the evidence including the forensic evidence and the text message exchange.

In her initial dealings with police she denied being in a relationship with the appellant. However, as the police disclosed to her some of the evidence that they had gathered, she admitted the relationship and provided a version of the applicant attending the house late on the evening of 28 July.

In her interview on 9 August 2013 she provided an account of her affair with the applicant and said that she wanted to end it because she loved Mr Rez. In a lengthy answer at the beginning of the interview she gave an account of seeing the applicant at the premises and seeing Mr Rez’s lying on the cement driveway. She talked about difficulties in her relationship with Mr Rez and claimed that the applicant must have misunderstood what she said to him. She had told the applicant that she “wanted him gone” (Q 674). She admitted that she assisted in moving the body (Q 811) and in hosing down the driveway (Q 901). She went on:

As can be seen, Ms Tarrant denied being involved in the murder or in planning it. After being confronted with the messages she said “[the applicant] had gave me his sleeping tablets” (Q 1087) and that she put those tablets in Mr Rez’s food (Q 1090). She continued to say that she did not know that the applicant would hurt Mr Rez but admitted that she and the applicant planned to ‘scare’ Mr Rez on week prior to 28 July 2013 (Q 1117-1121). The interviewed continued:

Different cases

From this brief summary of the things said by the accused to police, along with the notice of Ms Tarrant’s defence under s 23A, it can be seen that the cases will be conducted on completely different bases and that different issues arise. The learned Crown Prosecutor properly concedes that the possibility of unfair prejudice is real and that the issues upon which the jury will be directed in each case will be substantially different. However, he submits that the risk can be cured by careful and well-crafted direction.

A PRACTICAL MATTER

In R v Symss [2003] NSWCCA 77 at [68] Sheller JA (with whom James J and Smart AJ agreed) said:

In the present case the consideration of conserving cost is of marginal, if any, relevance. The trial is listed with an estimate of 4-6 weeks. The Crown accepts that this is probably an overestimate and that if the trials are conducted consecutively, rather than jointly, they are together unlikely to exceed by very much the 6 week estimate. A trial of Ms Tarrant alone will be be conducted with large parts of the prosecution case uncontested or tendered by way of agreed facts. The estimate provided by counsel is in the order of 2-3 weeks. A trial of the applicant alone would take longer, and it is likely that Ms Tarrant would be a witness in the prosecution case. I am told that a significant amount of the evidence would be reduced to summaries and charts and that the main live issue would be what inferences can be drawn from those facts. That trial is likely to occupy 4-5 weeks.

Even allowing for the likelihood that these are under-estimates, the total length of two back-to-back trials is not so much greater than the estimate for a joint trial that the consideration of the conservation of costs is not one that looms large in a principled consideration of the present application. The Crown Prosecutor, with his customary fairness, does not submit to the contrary.

The Crown Prosecutor indicated on the hearing of the application that if the trials are separated, and in whatever order the trials are conducted, Ms Tarrant will be called by the Crown as a witness. If the trials are separated, it is the Crown’s intention to call Ms Tarrant for trial first. She would then be called as a witness in the applicant’s trial. Even though the applicant is on remand with bail refused, he presses the application for separate trials in spite of the additional delay that will be occasioned if the trials are run consecutively rather than jointly.

The applicant submits that this process will allow him to cross-examine Ms Tarrant in front of the jury. He submits that this will eradicate the embarrassment and prejudice that will attend a trial where Ms Tarrant’s evidence is before the jury in circumstances where he will not be able to test her assertions (unless she gives evidence, the likelihood of which is unknown) and where the jury is directed that they must disregard her admissions in considering the case against the applicant.

Section 21(2) of the Criminal Procedure Act 1986 provides:

Sub-section (6) provides that the powers available under the section (which include a power to adjourn and to amend the indictment) “is in addition to and not in derogation of any other power of the court for the same or similar purposes.” The power to order separate trails of two co-accused is well established. The starting point is that, as a general proposition, people who are alleged to have jointly committed a crime should be tried together.

In the case of R v Assim (1966) 2 QB 249, Lord Sachs described the general principle at 261:

The Court of Criminal Appeal cited this passage with approval in R v Annakin & Ors (1988) 31 A Crim R and observed at 139:

In Regina v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1997) I07 A Crim R 432 at [6] Kirby J said:

The “rule” has particular application in cases involving “cut throat” defences. That is, cases where two (or more) accused are jointly charged but seek to blame each other. This issue caused division in the High Court in the case of Webb v The Queen (1994) 181 CLR 41 but the majority supported the approach of King CJ in the South Australia Court. Toohey J (with whom Mason CJ and Mchugh J agreed on this point) said at 88-89 (citations omitted):

Deane J disagreed, saying at 80:

The majority and prevailing view has been applied consistently since the decision in Webb v The Queen: see, for example, R v Fernando and Anor [1999] NSWCCA 66. Senior Counsel for the applicant acknowledges that in cases where two people alleged to have committed the same crime (either jointly or otherwise) seek to blame one another, and exculpate themselves, the general rule is that there will be a joint trial. However, it is submitted that this is not such a case. The obvious distinction is that Ms Tarrant admits her own involvement in the killing of Mr Rez. She does not seek to exclulpate herself by blaming the applicant. She admits that they acted in concert. Further, it appears that the applicant does not seek to cast blame upon Ms Tarrant (apart from accepting what the police told him as to Ms Tarrant’s admission).

In R v Middis (Supreme Court (NSW), 27 March 1991, unrep) Hunt J said:

In R v Pham [2004] NSWCCA 190 Adams J discussed the term “immeasurably” stating:

Spigelman CJ agreed subject to some additional remarks made by Hulme J. All three Judges were satisfied that the trial had miscarried.

The Applicant relies on what was said in Middis and submits that what is otherwise a circumstantial case, albeit a very strong one, will be made “immeasurably stronger” by reason of the evidence contained in Ms Tarrant’s ERISP which would otherwise be inadmissible against the applicant. The Crown Prosecutor submits to the contrary and relies on the strength of the case and the fact that the statements made by Ms Tarrant are able to be proved by other evidence. Particular reliance is placed on the inferences to be drawn from the text message exchange at the time of alleged murder.

As I understand it, the Crown concedes, as it must, that there is real potential for prejudice arising from the conduct of a joint trial together. Apart from pointing to the strength of the prosecution case and doubting, in that context, whether it would be made “immeasurably stronger” by virtue of Ms Tarrant’s admissions, the learned Crown Prosecutor submits that “the trial judge’s directions could adequately warn the jury against impermissible use of such material from Tarrant’s interview against Roff”.

Reliance is placed on the large body of authority that attributes to the jury a capacity to put prejudicial evidence to one side and to comply with the trial judge’s directions. For example, in Gilbert v R [2000] HCA 15; 201 CLR 414 McHugh J said at 425 [31]:

Gleeson CJ and Gummow J said at [13]:

There are many statements in the NSW Court of Criminal Appeal to similar effect: see for example, R v Jamal [2008] NSWCCA 177; 72 NSWLR 258 at [17]-[21].

In R v Simmons; R v Moore (No 4) [2015] NSWSC 259, in the context of determining whether a trial by judge alone order should be made, I referred at [83]-[92] to the capacity of jurors to disregard prejudicial material and to follow directions to do so. At [87] I noted the comments of academics who have done studies and written on the subject:

As I said in R v Simmons (No 4) at [88]:

In R v Debs [2011] NSWSC 1248, a case in which RS Hulme J determined that certain prejudicial material should be removed from various internet websites, his Honour referred at [30]-[32] to various notorious cases where jurors had disobeyed directions.

However, I must (and do) proceed on the basis that it is generally assumed that jurors are capable of obeying directions to treat each case separately and only to consider relevant admissible evidence in the case of each accused.

In Pham, one of the important features of the case was that the jury would be required to make an assessment of the credibility of two critical witnesses. In the case of one accused (Phong) the jury could use the contents of the Phong’s statement as providing corroboration for the evidence of the witnesses. Having made an assessment based on that evidence in Phong’s case “it would have been virtually impossible, as a matter of common sense, for the jury to disregard Phong’s interview in dealing with the case against the appellant, despite the emphatic directions”: per Adams J at [34], see also Hulme J at [8].

In R v Iskandar [2011] NSWSC 1192, Davies J ordered separate trials where two co-accused had made statements implicating the accused. The case against the accused was otherwise strong and the outcome of the case would likely turn on inferences to be drawn concerning the accused’s intention. After providing a helpful summary of the relevant law, Davies J concluded:

Similar considerations arose in R v Singh (Supreme Court (NSW), 10 November 2011, Fullerton J, unrep). The co-accused’s interview implicated the accused and also raised questions of duress. Fullerton J noted (at [39]-[40]) the predictive nature of the exercise to be undertaken when an application for separate trial is made. Her Honour concluded:

R v Lu and Pham [2007] NSWSC the Crown presented its case as one involving a common purpose or extended joint criminal enterprise. The co-accused took part in separate police interviews in which they provided inconsistent versions of events. Price J said:

These, and many other cases in which decisions on such issues have been determined in this court or on appeal, demonstrate that the discretion to order separate trials must be exercised by reference to the particular facts of the case, the nature of the allegedly prejudicial evidence and likely conduct of the trial including the directions to be given to the jury.

In the present case the risk of prejudice that will arise in a joint trial is unable to be cured by strong and careful directions. I come to this conclusion based on a global review of the evidence and a consideration of the kinds of directions that could be given in an attempt to cure the prejudice. There are two particular factors that I should mention.

First, the issues in the trials will be completely different. In Ms Tarrant’s case, the jury would be invited by both parties to accept that the circumstantial case against her is corroborated by her admissions that she and the applicant were jointly involved in the plan to scare, harm or kill Mr Rez. Having come to the conclusion that the elements of murder were established, the jury would then be called on to consider whether to accept her defence of substantial impairment. The same jury would be required to be put aside its findings in relation to the inferences properly to be drawn from the circumstantial case when it was considering the applicant’s case and to disregard Ms Tarrant’s admissions implicating herself and Mr Roff when assessing the same body of circumstantial evidence. To adopt the words of Hulme J in R v Pham, there is no practical way that the jury could assess the circumstantial case against the applicant, and determine whether any explanation or inference existed that is inconsistent with guilt, while accepting those same inferences based on the same evidence and circumstances in the case of the applicant.

Secondly, Ms Tarrant’s admissions came in the course of an interview where she initially denied or minimised her own involvement in the killing. It was only after parts of the circumstantial case were laid out before her that she implicated herself. Apart from an acceptance that the circumstantial case appeared to be overwhelming as it was presented to her in the interview, there is no explanation for her later statements incriminating herself. This is a significantly different case to one where an accused, motivated to exculpate themselves, attempts to shift the blame to their co-accused.

I have taken into account that the prosecution case is that the two accused acted jointly and in concert and that most of the evidence in the case is common to both accused. I accept that separation of the trials will result in a duplication of the evidence and a somewhat longer trial. I have considered the inconvenience that this will create to the Crown, the investigating police and to the lay witnesses. I have commenced from the proposition that ordinarily in a case such as this, there will be a joint trial. Against that, it is clearly preferable and in the interests of justice that Ms Tarrant’s version of events is formally a before the jury that is to consider the applicant’s guilt and equally important that he have the opportunity to test that version by cross-examination.

The prejudice and embarrassment that would be occasioned by a joint trial cannot be overcome by direction, no matter how clear and cogent and that the interests of justice demand that the accused be tried separately.

Accordingly, I make the following orders: