Regina v Patsalis and Spathis [no 1] [1999] NSWSC 649 (30 June 1999)

Last Updated: 5 July 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Regina v Patsalis & Spathis [No 1] [1999] NSWSC 649

CURRENT JURISDICTION: Criminal Division

FILE NUMBER(S): 70002/97

70200/97

HEARING DATE{S): 28 June 1999, 29 June 1999

JUDGMENT DATE: 30/06/1999

PARTIES:

Regina

v

Michael Patsalis

Alexios Spathis

JUDGMENT OF: Kirby J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

P Power (Crown)

M Macgregor QC (Patsalis)

D Campbell (Spathis)

SOLICITORS:

K Roots (Crown)

Coustas & Co (Patsalis)

Hancock Alldis (Spathis)

CATCHWORDS:

CRIMINAL PRACTICE & PROCEDURE

Application for separate trials - s365(2) Crimes Act 1900

Cut-Throat defence

ACTS CITED:

Crimes Act, 1900 - s98, s365(2)

Evidence Act, 1995

DECISION:

Appn refused.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

CRIMINAL DIVISION

KIRBY J

Wednesday 30 June 1999

70002/97 - REGINA v MICHAEL PATSALIS

70200/97 - REGINA v ALEXIOS SPATHIS

JUDGMENT (On Application for Separate Trials) - [No 1]

1 HIS HONOUR: The Crown has foreshadowed an indictment in the following terms:

"On 10June 1999, the Director of Public Prosecutions on behalf of Her Majesty CHARGES THAT

Michael PATSALIS

and

Alexios SPATHIS

On 11 April 1996 at Sydney in the State of New South Wales did murder Klaus Peter LUDWIG."

2 Particulars have been furnished to the representatives of each accused. In the case of Mr Patsalis, the Crown has alleged that it will rely upon the following:

"1. Either Mr Patsalis was a principal in the first degree (with the requisite intent) and stabbed the deceased; or

2. That both Mr Patsalis and Mr Spathis were both principals in the first degree (with the requisite intent) and they both stabbed the deceased; or

3. That Mr Patsalis was acting in concert with Spathis and Spathis stabbed the deceased (with the requisite intent); or

4. That they both are guilty of murder on the basis of the felony murder rule, namely that they went together with a specific intent to rob the deceased and `at the time of, or immediately after, such robbery ... wound[ed]' the deceased (section 98, Crimes Act 1900 NSW)."

3 The letter in respect of Mr Spathis is the same, except that paragraphs 1 and 3 which are in these terms:

"1. Either Mr Spathis was a principal in the first degree (with the requisite intent) and stabbed the deceased; ...

3. That Mr Spathis was acting in concert with Patsalis and Patsalis stabbed the deceased (with the requisite intent); ..."

4 Application is made under s 365(2) of the Crimes Act 1900 on behalf of Mr Patsalis for a separate trial. The application is opposed by the Crown. It is also opposed by Mr Spathis. Whereas Mr Patsalis asserts that a joint trial would bring about a positive injustice to him, Mr Spathis contends that "severance may operate so as to deprive (him) of a fair trial".

5 Both accused provided lengthy interviews to the police. Each acknowledged his presence at the time of Mr Ludwig's stabbing. The three were in a truck parked by the side of the road at Botany. Mr Ludwig occupied the centre seat. The accused were on either side. Mr Patsalis asserted that Mr Spathis occupied, at the relevant time, the driver's seat, and that Mr Spathis stabbed the deceased. Mr Spathis acknowledged that he had originally been in the driver's seat. However, immediately before the stabbing he and Mr Patsalis swapped sides. Mr Patsalis thereafter, according to Mr Spathis, stabbed the deceased.

Relevance Principles

6 There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered (R v Oliver (1984) 57 ALR 543).

7 Elaborating upon that test, Hunt J made the following comment in R v Middis (unreported, 27 March 1991): (at 5)

"I do not believe that the Court of Criminal Appeal in Regina v Oliver intended an applicant for a separate trial to demonstrate that positive injustice would more likely than not be caused by a joint trial (as it was suggested in argument); nor do I accept that a mere possibility of prejudice is sufficient (as it was also suggested in argument). In my view, what the court of Criminal Appeal was saying was that, as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would - if it arises - result in positive injustice to him in a joint trial."

8 The issue of prejudice must be examined from the viewpoint of the accused (de Jesus v R [1986] HCA 65; (1986) 68 ALR 1. Is the reception of evidence at the trial admissible against Mr Spathis, but inadmissible against Mr Patsalis, such as to endanger the prospect of a fair trial for Mr Patsalis?

9 There is to some degree, although a minor degree, a question of balancing prejudice with convenience. In R v Oliver, the Court said the Judge must take account of the following: (at 547)

"...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."

10 Hunt J, in Middis, explained the balance which should be struck in these terms:

"That is not to suggest, however, that the prejudice caused to an accused is easily outweighed."

11 (cf R v Demirok (1976) VR 244 at 254).

12 In Middis, Hunt J identified the circumstances in which it would be appropriate to order a separate trial. He said this: (at 4)

"Briefly, the relevant principles are that:

1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and

2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and

3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,

a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial."

13 The applicant submitted that this passage overstates the requirements. Nothing said by the High Court justifies the accumulation of each of the three requirements identified by Hunt J before a separate trial is ordered. The test, as formulated by Hunt J in Middis, has, however, been repeatedly accepted by the Court of Criminal Appeal (R v Baartman (unreported, 6 October 1994); R v Fernando (1999) NSWCCA 66, para 199-122; R v Georgiou (1999) NSWCCA 125). I accept, nonetheless, that the formulation by Hunt J in Middis does not state exhaustively the circumstances in which a Court should order a separate trial. The touchstone must, of necessity, remain general. Is there a risk of positive injustice to the accused were he or she to stand trial jointly with a co-accused?

Cut-Throat Defences

14 Messrs Patsalis and Spathis, in their description of the events of 11 April 1996, each described a number of separate phases:

· First, there was what might be termed a preparation phase. Arrangements were made to meet the deceased at Bankstown. A number of purchases were made beforehand (two pairs of gloves, two knives, a tarpaulin and one tin of petrol).

· Second, having met the deceased, two vehicles were then driven from Bankstown to the Marrickville RSL. Mr Spathis was in his car. Mr Patsalis was a passenger in the truck driven by Mr Ludwig.

· Third, once at Marrickville, Mr Spathis parked his car. He then entered the truck, sitting alongside Mr Ludwig, with Mr Patsalis on the other side, nearest the door. Mr Spathis then drove to Botany.

· Fourth, at some point the vehicle parked by the side of the road at Botany. Whilst parked, Mr Ludwig was stabbed. Each accused blames the other. Each asserts ignorance of the sinister purpose of the other. Both acknowledge that money was removed from Mr Ludwig's jacket after the stabbing.

· Fifth, Mr Spathis then drove back to Marrickville with Mr Patsalis as a passenger. Mr Patsalis then alighted. He thereafter drove Mr Spathis' vehicle. Mr Patsalis was covered with blood. The car seat was protected by the plastic tarpaulin purchased earlier in the day.

· Sixth, the two vehicles then drove to Terry Hills, although by a circuitous route. At Terry Hills the body was removed from the cabin by Mr Spathis, and left by the side of the road. It was doused in petrol. Further money was removed from the jacket of the deceased. The body was then set alight.

· Seventh, the vehicles then left the scene, although in circumstances which were somewhat chaotic. The burning of the body, and the rapid exit from the area, were witnessed by the occupants of a number of vehicles which were in the area.

· Eighth, the vehicles proceeded to Mr Patsalis' flat at Homebush. Mr Spathis was driving the truck, and Mr Patsalis Mr Spathis' car. Having met at Homebush, the two vehicles were then driven to Chester Hill where the truck was set alight. Mr Patsalis placed his blood stained clothes inside the truck, so that they were also destroyed.

15 The description of these matters is common to both interviews. The difference between the two accounts is in the role each accused assigns to himself, and his co-accused. Each seeks to explain his complicity, upon the basis of ignorance of the true purpose of the other before the deceased was stabbed, and threats made by the other after the stabbing had taken place. The matter, therefore, involves what are termed "cut-throat defences". In R v Ignjatic (CCA, unreported, 6 July 1993) Hunt J made the following comment: (at 10)

"It may be said that, since the decisions in Guimond and Darby, the mere existence of cut-throat defences is no longer a basis for supporting a joint trial: cf Regina v Kerekes (1951) 70 WN 102 at 103, 105, 106; Regina v Beaven (1952) 69 WN 140 at 142. I discussed this point in Regina v Farrell & Cotton (1990) 48 A Crim R 311 at 313-314, and I will not repeat what I said there. But that does not mean that the mere existence of cut-throat defences has become a basis for rejecting a joint trial. Obviously, there will be cases in which cut-throat defences are raised where it may be appropriate to order separate trials, but they would not in my view arise frequently. In a proper summing-up, the jury will be directed separately in relation to the evidence admissible against each accused: Regina v Masters (1992) 26 NSWLR 450 at 455. The undoubted prejudice created by such an unsworn statement by a co-accused in a joint trial is usually considerably lessened in such a circumstance, and thus it would not amount to the positive injustice required to warrant separate trials." (emphasis added)

16 In Webb and Hay v The Queen [1994] HCA 30; [1993-94] 181 CLR 41, Michael Webb and Veronica Hay were charged with murder. Ms Hay sought a separate trial. Toohey J described the basis for her application in these words: (at 88)

"The justification, indeed the alleged necessity, for separate trials lies in the fact that in three records of interview with Webb, which could be expected to be and were adduced in evidence by the prosecution, Webb made assertions that Hay had engaged in a violent and sadistic attack on the deceased. And, it was said, although the trial judge warned the jury that this evidence was not admissible against Hay, such a direction could not cure the overwhelming prejudice inevitably caused to Hay."

17 His Honour then stated the principles in these words (with which Mason CJ and McHugh J agreed): (at 88/89)

"King CJ dealt with this ground by pointing out that there are `strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other' (R v Webb & Hay (1992) 59 SASR at 585). What King CJ referred to as `strong reasons of principle and policy' were discussed by his Honour in Reg v Collie ((1991) [1991] SASC 2996; 56 SASR 302 at 307-311). I respectfully agree with that discussion which emphasizes that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others (Reg v Demirok [1976] VR 244 at 254). There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the use they may make of the evidence so far as it concerns each accused (Reg v Harbach (1973) 6 SASR 427 at 433)."

18 Commenting upon the application of these principles (although applying the test relevant to appellate review), Toohey J said this: (at 89)

"In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed ((1992) 59 SASR at 585): `That is a common feature of a joint trial and does not of itself render separate trials necessary.' Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred."

19 The Court of Criminal Appeal in R v Fernando & Anor (1999) NSWCCA 66 considered the same issue. The trial Judge had refused to order separate trials. The two accused were charged with aggravated sexual assault and murder. The Court (Newman, Studdert and James JJ) identified the issue which gave rise to the application for separate trials in these words: (at 106, para 220)

"The tenor of Brendan Fernando's statements to the police was that while he was present during most of the events which occurred he was subject to the control of Vester Fernando who was armed with a machete. Indeed, he stated to the police at the time when the victim was killed he was not present, having left the company of Vester Fernando and the victim shortly before the lethal event must have occurred. Thus while his statements may not be considered as being a complete `cut throat' defence they are certainly exculpatory to a degree of his own participation and thoroughly implicate Vester Fernando."

20 At the trial, Brendan Fernando did not give evidence. Thus his statements were not capable of being tested by either the Crown prosecutor or Vester Fernando's counsel. Nonetheless, the Court said this: (at 106, para 222)

"However, his recorded admissions do, in the court's view, fall within the type of evidence adverted to in the authorities and particularly by Toohey J in Webb and Hay which support the contention that there ought to have been a joint trial."

The Opposition of Mr Spathis

21 Mr Spathis, as mentioned, opposes the application for separation. Indeed, he asserts that injustice to him is likely unless the matter proceeds as a joint trial. Were it otherwise, the jury would hear but half of the story.

22 Such a submission finds support in many authorities. They are conveniently collected in R v Fernando. In R v Grondkowski [1946] 1 KB 369, the Court of Criminal Appeal cited with approval the following passage from R v Gibbon & Proctor (1918) 13 Cr App R 134:

"It is not enough to say that counsel could have defended them more easily if they had been tried separately ... there may have been many things made clear to the jury which would not have been made clear if the prosecution had been embarrassed by having to deal with the two cases separately. The whole story was before the jury of what went on in the house where the two appellants lived together."

23 The Court of Criminal Appeal in Fernando made the following comment upon these authorities: (at 100, para 203)

"Grondkowski was a case involving cut-throat defences. As we apprehend the passage cited and other passages from the judgment it was considered that cases of that kind are better heard together. The reason for that is the opportunity given to the jury to observe each of the accused and to consider the whole of the relevant facts rather than what may be a misleading portion of them."

24 The Court also drew attention to the following passage from Grondkowski which it quoted with approval: (at 100, para 203)

"Prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise that it is obviously right and proper that they should be jointly indicated and jointly tried and in some cases it would be as much in the interests of the accused as of the prosecution that they should be."

25 Grondkowski, as the Court of Criminal Appeal remarked, has been consistently followed in this State, including R v Kerekes (1973) WN; R v Flaherty & Ors (1968) 3 NSWLR and R v Merrett 19 A Crim R 363.

26 The Court specifically drew attention to the remarks of Herron J in R v Beavan 69 WN 141 at 142/143, where his Honour said this:

"If separate trials were had, very often only one half of the picture could be presented to the jury. In order to do complete justice, juries are entitled to see and hear all those who are alleged to have acted in common purpose, and it is neither a rule of law nor of practice that where an essential part of one accused's defence amounts to an attack on a co-accused there must be separate trials. Cases have occurred and will no doubt continue to occur, in which one accused says that he or she was persuaded by the superior intellect of the other accused to take some part in the enterprise, or that he or she was intimidated by the relationship or threats of that other. It is essential to the proper appreciation of such cases that the jury should see and hear all parties. It is true that statements not on oath can be prejudicial to the one referred to in them, but as they are not statements on oath the jury can be warned by the trial judge to reject those references to the co-accused, and there is no reason to think that a commonsense jury will refuse to follow such advice."

27 These remarks have not met with universal acclaim. Hunt J in R v Farrell & Cotton (1990) 48 A Crim R 311, suggested that they involve a fallacy. The suggestion that a jury may complete the picture by resorting to the account provided by a co-accused demonstrates the very problem inherent in a joint trial. The two cases must be considered separately. It is impermissible, therefore, to supplement the picture emerging in one by resort to the picture provided by the other. Hunt J said this, referring to the remarks of Herron J in R v Beavan: (at 313)

"In my view, those statements are no longer binding upon me in the light of the decisions in Darby and Guldur, although they must of course be accorded the respect which is due to any views expressed by that very experienced trial judge. Notwithstanding that respect which is due, however, I suggest that there is a fallacy in the notion that `juries are entitled to see and hear all those who are alleged to have acted in common purpose'."

28 His Honour added: (at 314)

"In effect, the jury is told that, when considering the case against one accused, they must disregard completely all of the evidence admissible only against the other accused - that in effect they should have regard only to the half picture which is admissible against that particular accused. If it became necessary, the jury would be told to disregard completely even the appearance of the other accused. If, for example, one accused in such a trial alleged duress by the other accused, the build and the demeanour of that other accused while he made his unsworn statement and generally during the trial would not be admissible for or against the accused making that claim: cf Kelly (1946) 46 SR (NSW) 344 at 349, 357.

I would therefore, with the greatest of respect to Herron J, disagree that `complete justice' requires the jury in the usual case to see and hear all those who are alleged to have acted in common purpose. It would be otherwise where it can be assumed with confidence that the accused will be giving evidence..."

29 Two comments should be made concerning these statements. First, the divide between two cases can be maintained, and yet a more thorough understanding provided by having two competing versions. It is much like the adversary system. The juxtaposition of two competing versions aids a critical examination of each. Although one version may not be used to supplement the other, the two versions are likely to provoke questions in the jury's mind, which will assist in the resolution of factual issues.

30 Secondly, in New South Wales, since 10 June 1994, the right of an accused person to make an unsworn statement has been abolished. Accordingly, the accused in this case must elect to give evidence, or give none. There is no middle course. Neither accused is able, at this point in time, to say which course will be adopted.

31 Were the accused to give evidence, the "fallacy" to which Hunt J drew attention would cease to operate. The recorded interview would then be available as evidence in the trial against both accused.

The Basis of the Application

32 It was submitted on behalf of Mr Patsalis that to determine the application a number of issues should be addressed sequentially:

· First, is the ERISP material relating to Mr Spathis admissible (and therefore likely to be before the jury in any joint trial)?

· Secondly, having regard to so much of the ERISP as is admissible, is it prejudicial to Mr Patsalis?

· Thirdly, if it is, is there a predictable risk of positive injustice to Mr Patsalis were the matter to proceed as a joint trial? If there is such a risk, an order should be made for separate trials.

33 Dealing with the first matter, it was submitted that much of the recorded interview concerning Mr Spathis is inadmissible, either because it is irrelevant, or because it cannot be regarded as an admission (that is, a statement adverse to the interests of Mr Spathis). Further, parts of the interview are incoherent. Its meaning, therefore, is uncertain. The Crown should identify those matters which satisfy the requirements of the Evidence Act 1995. Only then can the potential for prejudice to Mr Patsalis be understood.

34 The Crown responded to these submissions in a number of ways. It asserted that the entire recorded interview was relevant. Mr Spathis describes the sequence of events culminating in the death of Mr Ludwig, and the steps taken to dispose of the body, and destroy the truck. Plainly such material is directly relevant. Counsel for Mr Patsalis did not suggest otherwise. Further, Mr Spathis described his relationship with Mr Patsalis. That relationship is relevant to the allegation made by the Crown of a joint criminal enterprise, and the scope of that enterprise (Wilson v R [1970] HCA 17; (1970) 123 CLR 334, per Barwick CJ at 338-340, Menzies J at 343; Harriman v R [1989] HCA 50; (1989) 167 CLR 590). No doubt aspects of the interview are self-serving. However, in fairness, and in principle, the Crown is obliged to tender the entire interview. The obligation to do so is stated succinctly in Glissan & Tilmouth, Australian Criminal Trial Directions 5103, in these words: (at 4-500-10-15)

"Where confessional statements are tendered by the prosecution and also contain assertions of fact favourable to an accused, the favourable material is admissible as evidence not merely that the statement was made, but that it is probative of the truth: Queen Caroline's Case (1821) 1 St Tr (NS) 949."

35 See also, R v Williamson (1972) 2 NSWLR 281 at 289; Cross on Evidence (5th Aust Ed) p 929 (para 33455).

36 On behalf of Mr Spathis it was accepted that that the ERISP interview was relevant and admissible. It would not be suggested that it was involuntary. Counsel for Mr Spathis may ultimately seek the exclusion of certain phrases or answers, or parts of answers, as a matter of discretion (ss 135-137 of the Evidence Act). However, it was acknowledged that such matters were likely to involve no more than minor editing of the interview.

37 That being the position of the Crown and Mr Spathis, it is likely that the ERISP interview concerning Mr Spathis will be admitted. The interview appears to me relevant. It is also coherent. The transcription of direct speech sometimes makes it necessary to read an entire passage to obtain the sense of what is being said.

38 I will approach my task upon the basis that the entire interview is admitted (although parts of it may ultimately be excluded, as a matter of discretion). It is not suggested by the Crown that the interview provided by Mr Spathis would be available as evidence against Mr Patsalis. The jury would be so instructed. Nonetheless, being a joint trial, and although inadmissible, it would be seen by the jury, and the jury would have available (for the purposes of determining whether Mr Spathis was guilty) a transcription of the interview.

Possible Prejudice Against Mr Patsalis

39 Progressing to the second question, what aspects of Mr Spathis' account are prejudicial to Mr Patsalis? Counsel for Mr Patsalis drew attention to many of the answers provided by Mr Spathis in the course of the interview. They were said to be prejudicial. Although other aspects were referred to in the course of argument, the written submissions helpfully provided by counsel for Mr Patsalis identified the following matters as being of particular concern:

"Spathis in his Record of Interview made a number of admissions and made many more allegations against the Applicant. These include that he lent his car to the Applicant Q19; that he and his family and girlfriend had been the subject of threats Q24; that the applicant was addicted to gambling; that he had loaned the applicant $16000 Q31; that there was an agreement to repay him at the rate of $125 per week Q40; that they were driving around getting everything that the Applicant `normally wanted'; he bought some stuff in a Target bag; that he said that he was going to get a container; that he got a container and filled it up; see generally Q43; who was seated where in the car Q47; they (the Applicant and the deceased) scuffled in the truck Q48, 56; and see Qs 69-73; that the applicant had spoken about guns Q56; see the indefinite assertions about a knife Q91-95; and further to Q112."

40 The matters said to be prejudicial can be divided, conveniently, into the following categories:

· First, there are many aspects of the account given by Mr Patsalis which coincide with the description provided by Mr Spathis.

· Secondly, there are other matters where they each describe the same event, differing only in the role which they assign to each other. The stabbing of Mr Ludwig is an example.

· Thirdly, they each assert that, in the course of the evening, they were threatened by the other. The threats are the explanation for their co-operation with the destruction of evidence, and the disposal of the body after Mr Ludwig had been stabbed.

· Fourthly, Mr Spathis raises a number of matters which are unquestionably damaging to Mr Patsalis. Two specific matters are of particular concern. Mr Spathis asserted that Mr Patsalis was a gambler, adding "he's addicted like someone was to, to drugs" (Q31, p6). He also recounted certain discussions with Mr Patsalis concerning guns.

41 Dealing with the first category, no risk of injustice arises in my view from such matters. Let me take one illustration. Counsel for Mr Patsalis complained, on behalf of his client, that reference by Mr Spathis to the $16,000 owed by Mr Patsalis as a result of a loan was prejudicial (Spathis interview Q30). However, Mr Patsalis, in his interview, provided the same information (Q24; Q60-64). There are many other similar illustrations.

42 It is convenient to deal with the second and third aspects together. The assertion by Mr Spathis that Mr Patsalis stabbed Mr Ludwig is obviously prejudicial. However, the prejudice is significantly diluted, in my opinion, in circumstances where the jury will also have before it the interview provided by Mr Patsalis. Mr Patsalis, as mentioned, makes allegations against Mr Spathis which are the mirror reverse of those made by Mr Spathis against Mr Patsalis. The presence of matching allegation, and counter-allegation, will serve to remind the jury that no assumption can be made as to where the truth lies. The same can be said in respect of the threats, which each asserts, were made against the other.

43 It is in the nature of cases involving cut-throat defences that there will be allegation and counter-allegation. Yet the authorities make it plain that the rule should operate in such cases, unless the particular circumstances suggest the positive risk of injustice. Such a risk may arise in a number of ways. It may arise where there is the accumulation of circumstances, as is Middis. It may arise because of the nature of particular allegations made by an accused against a co-accused. I am not referring to matching allegations of the type made by Mr Spathis against Mr Patsalis, and Mr Patsalis against Mr Spathis. Rather, particular allegations may be made by a co-accused which are not gratuitous (and therefore not capable of excision as a matter of discretion under s 137), which are crucial to the defence, and yet highly damaging to a co-accused. The damage may occur either because of the subject matter, or because of the relevance of the allegation to a crucial issue. A further way in which there may be a risk of injustice, in the context of cut-throat defences, is in circumstances where one accused has a prior criminal history, and the other does not. The accused with the history may, in a joint trial, feel some inhibition in giving evidence. That may work an injustice.

44 Here, the Middis test is not satisfied. It was not suggested, nor could it be, that the Crown case against Mr Patsalis was either significantly different from, or significantly weaker than, the case against his co-accused. The risk contemplated by paragraph 3 of the test (namely, that a weaker case against Mr Patsalis will be made immeasurably stronger by reason of the prejudicial material) does not arise.

45 Nor do I believe that the allegations by Mr Spathis against Mr Patsalis (with the possible exception of category 4, which I will deal with separately) are such that they carry the risk of a positive injustice against Mr Patsalis. No significant matters of credit, creating an imbalance between accused and co-accused, inhibiting one from entering the witness box, were suggested, that may warrant a separate trial.

The Allegation of Gambling

46 Dealing, finally, with category 4, Mr Spathis made a number of comments, which may be thought disparaging, concerning Mr Patsalis as a gambler. He said this: (Q31)

"... it was $16,000 which was a lot of money. It's a lot of money. This is over a period of a year. So anyway he kept coming up with all these scams which anyone would tell you that knows him, `I'm gunna get it here, I'm gunna get it here', but look basically he was just a, a gambler eventually, I, I, I found out and he gambled every cent that I'd ever given him. And his brother had warned me up until about a week ago, two weeks ago that, `Don't ever give him any more money because he's, he's, he just gambles it', he said, it's like he's addicted like somebody was to, to drugs."

47 Mr Spathis described how he lent Mr Patsalis his car to meet Mr Ludwig in order to complete a transaction from Mr Patsalis would receive money. Mr Spathis hoped to be repaid from that money. He explained why he accompanied Mr Patsalis on the evening of 11 April in these words: (Q43, p10)

"'You're gunna get all your money back tonight and I'll bring it, bring it over to you at the shop.' Well, `not bring it over to you at the shop' `cause I was gunna be with him and he's gunna give it to me there or, you know, whatever - the way he's gunna do the transaction, he was gunna bring it over so that's why I wanted to be there because I said I want to take it right there and then but he was gunna say, `No, I'll give it to you at the shop', but I didn't want him to do that because I knew he'd go and gamble that money. Anyway it's a long story."

48 Mr Patsalis, in his interview, described the circumstances in which Mr Spathis loaned him $16,500. He acknowledged that he had lied to Mr Spathis (Q24, p6), that he had shown him false documents (Q24, p6), including a letter from his solicitors, which he had forged (Q24, p6). The use by Mr Spathis of the word "scam" in his interview is not prejudicial to Mr Patsalis in the context of Mr Patsalis' own account of his actions. Mr Patsalis described what he did with the money, or part of the money he received from Mr Spathis. He said this: (Q24, p7)

"The reason I did this was to gain some more money from him, ie $5000 so as I could go to the races, Rosehill racecourse and win back the money so as I could pay him back in full. Unfortunately for me and him I could not win and lost the lot on the same day. This made my situation worse."

49 Mr Patsalis elaborated upon that answer later in the interview (Q61). Towards the end of the interview, Mr Patsalis provided the following answers to the police: (p71)

"Q243 Michael, is it fair to say that you have a - quite a serious gambling problem?

A, Yes, it is fair.

Q244 And how much money would you normally gamble in a week?

A. Could be 500 to 1000.

Q245 Because of your gambling problem, did you feel any pressure to comply with Alex's requests to assist him in recovering the money?

A. To recover the money but not by killing anybody."

50 Given these statements, I do not believe that any significant prejudice to Mr Patsalis arises as a consequence of the statements made about him by Mr Spathis on this subject.

The Reference to Guns

51 Mr Spathis, in his interview, described his actions immediately after Mr Ludwig was stabbed. He said this: (Q48, p14)

"I opened the door quickly because I thought something was gunna happen to me and I, I looked and they were scuffling and I closed the door and they..."

52 He also said that he was "scared for myself" (Q55). In that context he provided the following answers: (p 15/16)

"Q56 Was there anything else that you noticed prior to getting out of the van?

A. No. Just, just that I knew something was happening and, you know, and - well, prior to this Michael had been kept talking about guns and how he can get guns cheap and how he can sell `em and this and that so I, I thought in my head there was a gun and so I said, `Shit, if there's gunna' - sorry, `If there's gunna be a gun then something's gunna happen to me, I'm gunna get shot'.

Q57 Did you ...

A. `Cause he owes me this money. `Cause this - I've always been thinking, he owes me this money why doesn't he .. why wouldn't he want to get rid of me so then he won't have to pay me back this money.

Q57 Did you hear, hear of anything during the struggle which you'd describe as a discharge of a firearm?

A. No."

53 This material is obviously important to Mr Spathis' defence. It is also highly prejudicial to Mr Patsalis.

54 However, when one goes to the interview provided by Mr Patsalis on the same evening, a number of allegations are made against Mr Spathis concerning firearms. They include the following (referring to 11 April 1996, the date of the incident): (Q24, p10)

"Alex picked me up from my home and drove me to Bankstown McDonalds - we ate. He then asked me to go for a walk with him. He asked me if I could get a gun. I asked him why he needed one. He told me how simple it would be to take money off somebody if a gun was pointed at them. I said to him, `What are, what are you planning on doing?' He said he would - he could rob somebody that he knew without hurting them. I said to him that I could not kill anybody or point a gun at them."

55 Mr Patsalis, later in the interview, referred to an occasion where the subject of firearms, and robbing someone, was again raised by Mr Spathis (Q67, p19).

56 This being the context, I am not persuaded that, on this aspect, there is prejudice to Mr Patsalis which is incapable of being dealt with by direction.

The Electronic Interview

57 Counsel for the applicant drew attention to the impact of an electronic interview upon the jury. He referred to the judgment of Dowd J in R v Piller (unreported, 6 June 1995), where the following was said: (at 18)

"My concern about the current proceedings is that the very strong impact of ERISP interviews distort the effect of directions given to the jury by the trial judge, whose directions are only given orally and lessened, in their effect, because of that fact. The ERISP interviews have such high impact that directions, such as the admissibility of certain evidence against particular accused, are of limited impact."

58 The case before Dowd J involved four co-accused. No doubt, as the number of co-accused increases, so does the potential sources of possible prejudice. It will be noticed, however, that his Honour directed that some only of the accused be tried separately. Moreover, electronic interviews have been used in police investigations for some time. Yet the principles, including those relating to cut-throat defences, have been reaffirmed, notwithstanding the impact of such interviews. Fernando was a case in which the material damaging to the co-accused (although not admissible against him) was conveyed by means of an electronic interview (Fernando at p98, para 196; p106, para 220). The Court of Criminal Appeal, nonetheless, concluded that a joint trial was appropriate.

59 Here many of the witnesses are common to both Mr Spathis and Mr Patsalis. Plainly, there is significant convenience in a joint trial. That is a factor, although not a large factor, and something to be put to one side if there is the risk of positive injustice. I am not persuaded, however, that there is such a risk. Accordingly I refuse the application. The matter should proceed as a joint trial.

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LAST UPDATED: 01/07/1999