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Court of Criminal Appeal 19 October 1999

Regina v Minh Than DO

[1999] NSWCCA 328

Homicide
ACTS CITED :

Citation: Regina v Minh Than DO [1999] NSWCCA 328
Court: Court of Criminal Appeal, New South Wales
Date: 19 October 1999
Judge(s): Sully J, Hulme J, Hidden J

Background

The respondent faced trial in the Supreme Court for the murder of a fellow prison inmate, alleged to have been fatally stabbed. Shortly before the trial was due to commence, new evidence emerged in the form of prison informer material suggesting that a second man, currently in lawful custody in New Zealand, had been a co-offender in the stabbing.

The Crown applied to vacate the imminent trial date so that, if the New Zealand man were extradited, both accused could be tried jointly. Barr J refused that application, finding that the respondent was entitled to have his trial and that a joint trial would likely delay proceedings until the second half of 2000.

The Director of Public Prosecutions appealed that refusal under section 5F of the Criminal Appeal Act. The respondent was in custody and was not due for release until at least 13 March 2001.

  • Whether Barr J's discretion to refuse the vacation of the trial date had miscarried.
  • Whether the interests of the Crown and the community in holding a joint trial of co-offenders outweighed any prejudice to the respondent from the delay.
  • Whether a joint trial could be arranged in sufficient time to avoid injustice to the respondent, given his custody status.

Decision

Sully J, with whom Hulme J and Hidden J agreed, held that Barr J's exercise of discretion had miscarried, even though no express error of principle was identified in his reasoning. Hulme J added that the primary judge had given inadequate weight to the Crown and community interest in a joint trial, and undue weight to the respondent's interest in an immediate trial.

The Court affirmed the general principle that co-offenders should ordinarily be tried jointly whenever it is justly possible to do so. On the facts, the Court was satisfied that a joint trial was appropriate, at least on a prima facie basis, given the new material identifying the New Zealand man as a co-offender.

The Court found no sufficient injustice to the respondent in vacating the fixture. Because the respondent remained in custody until at least March 2001, a properly constituted joint trial could be arranged well in advance of that date, even on the most pessimistic estimate of the relevant procedures.

The Court also noted that a "Basha" inquiry (a pre-trial hearing mechanism for testing the evidence of protected or sensitive witnesses) could be used to ensure the recently obtained prison informer evidence was properly examined before any joint trial.

Orders Made

  • Appeal allowed.
  • Trial of the respondent listed for 25 October 1999 vacated.
  • Proceedings listed for call-over in the Supreme Court on 5 November 1999.
  • If the proposed co-offender had been extradited by that date, proceedings involving him also to be listed at the 5 November 1999 call-over.
  • At the 5 November 1999 call-over, dates for any desired "Basha" type hearing to be fixed for the earliest practicable date in 2000 (estimated at three days).
  • Joint trial of both accused to be fixed for June, July, or August 2000.

Key Takeaways

  • The Court of Criminal Appeal confirmed that courts will ordinarily require co-offenders to be tried jointly whenever that can be done with justice to all parties, and that this principle carries significant weight when a trial date is challenged.
  • A discretion to refuse the vacation of a trial date can miscarry even in the absence of an identifiable error of principle, where the balancing of competing interests is found to be inadequate.
  • Where an accused is already in custody serving a sentence that extends well beyond the likely date of a joint trial, delay caused by vacating a trial fixture does not automatically constitute sufficient injustice to override the co-trial principle.
  • The "Basha" inquiry procedure was recognised as an available mechanism to test sensitive or recently obtained evidence, including prison informer material, in advance of a joint trial.
  • Hulme J's concurrence highlighted that both the Crown's interest in presenting a coherent joint case and the broader community interest in the joint prosecution of alleged co-offenders are weighty considerations in the exercise of any discretion to refuse a vacation application.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), s 5F

Cases:
- No cases were expressly cited by name in the judgment, though the decision references the "Basha" inquiry procedure (derived from R v Basha (1989) 39 A Crim R 337) and notes an "abundance of authority" on co-offender joint trials without identifying specific decisions.