Citation: [1999] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 25 May 1999
Judge(s): Spigelman CJ, Greg James J, Smart AJ
Background
The applicant was charged on a joint indictment with three counts of murder and one count of attempted murder, arising from a shooting at a Sydney cafe in which three members of an outlaw motorcycle club were killed. The Crown alleged that the applicant and his co-accused acted in concert throughout the incident, travelling together to the venue and fleeing together in the applicant's car after the shooting.
The applicant sought a separate trial from his co-accused, arguing that the evidence against him was significantly weaker than the evidence against his co-accused. The trial judge, Sperling J in the Supreme Court, declined to order a separate trial. The applicant then sought leave to appeal that interlocutory decision to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.
The applicant's case rested in part on an alibi defence, with witness statements said to support that he was not at the cafe at the relevant time. He also raised concerns about prejudice from the anticipated tender, at the joint trial, of his co-accused's electronically recorded police interview.
Legal Issues
- Whether the trial judge erred in declining to order a separate trial for the applicant
- Whether the evidence against the applicant was "significantly weaker" than the evidence against his co-accused, such that a separate trial was warranted
- Whether the prejudice arising from the tender of the co-accused's police interview could be adequately managed by jury directions
Decision
The Court of Criminal Appeal identified the governing principles as those set out in Hunt J's judgment in R v Middis (NSWCCA, 27 March 1991). The starting position is that persons jointly charged should ordinarily be tried together, particularly where each accused may seek to cast blame on the other. That presumption in favour of a joint trial reflects both administrative efficiency and the importance of avoiding inconsistent verdicts.
Spigelman CJ reviewed the forensic and circumstantial evidence against each accused. The DNA evidence connecting the co-accused to the basement where the shootings occurred had no direct equivalent in the case against the applicant. However, the applicant was linked to the murder weapons through their history and ballistic evidence, to the getaway vehicle as its driver, and to the scene through eyewitness identification evidence. The Court found it was open to Sperling J to conclude that the evidence against the applicant was not "significantly weaker" than that against his co-accused, and that no error of law had been established.
On the prejudice question, the Court held that the trial judge was entitled to find that any prejudice from the co-accused's police interview was "readily identifiable" and capable of being addressed by appropriate jury directions. The Court noted that an order for a separate trial is interlocutory in nature and may be revisited by the trial judge if circumstances change during the joint trial.
The Court declined to interfere, noting the well-established limitations on appellate courts disturbing the exercise of a discretion to direct separate trials, particularly given that the relevant factual picture may shift as a trial progresses.
Orders Made
- Leave to appeal refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that the principles governing applications for separate trials, as articulated in R v Middis, require the applicant to demonstrate that the evidence against them is significantly weaker than the evidence against a co-accused before a separate trial will be ordered.
- A presumption exists in favour of joint trials where co-accused are charged with jointly committing an offence, particularly where each may seek to attribute blame to the other.
- Differences in the nature or weight of forensic evidence between co-accused do not automatically satisfy the "significantly weaker" threshold. The court considers the overall body of evidence, not isolated categories of proof.
- Prejudice arising from the admission of a co-accused's prior statement or interview at a joint trial does not necessarily warrant a separate trial if that prejudice is clearly identifiable and amenable to curative jury directions.
- An interlocutory ruling refusing a separate trial remains subject to revision by the trial judge if material emerges during the joint trial that makes it unjust to continue on that basis, which limits the scope for appellate intervention at the pre-trial stage.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
Cases:
- R v Middis (NSWCCA, 27 March 1991) (governing principles for separate trial applications)
- Webb and Hay v The Queen (1993-94) 181 CLR 41 (factors relevant to joint trial applications)
- Regina v Collie (1991) 56 SASR 302 (principles and policy favouring joint trials)
- Saunders (1994) 72 A Crim R 327 (separate trial orders as interlocutory decisions under s 5F)
- Guldur (1986) 8 NSWLR 12 (limitations on appellate interference with separate trial discretion)
- Verma (1987) 30 A Crim R 441 (same)