Citation: Regina v Folli [2000] NSWCCA 460
Court: New South Wales Court of Criminal Appeal
Date: 30 October 2000
Judge(s): Giles JA; Wood CJ at CL; James J
Background
The applicant faced fourteen counts of indecent assault and sexual intercourse without consent, alleged to have occurred between 1979 and 1983. Ten counts concerned one complainant (referred to as CD) and four concerned another (referred to as RD). The two complainants were brothers.
At first instance, Sorby DCJ in the District Court refused applications to hold separate trials for the counts relating to each complainant, as well as an application for individual trials on each count. The applicant sought leave to appeal that interlocutory ruling to the Court of Criminal Appeal, but ultimately pressed only the question of whether the counts for each complainant should have been tried separately.
The applicant's central concern was that a joint trial would create a real risk of unfair prejudice. He argued the jury might misuse evidence relating to one complainant when considering the charges relating to the other, and that the complainants may have colluded or might concoct a shared account.
Legal Issues
- Whether Sorby DCJ erred in refusing to order separate trials for the counts relating to each complainant.
- Whether the risk of jury prejudice from a joint trial was sufficient to warrant separation.
- Whether the possibility of collusion or concoction between the complainant brothers was a material factor requiring separate trials.
- Whether leave to appeal against an interlocutory judgment should be granted in the circumstances.
Decision
The Court of Criminal Appeal dismissed the application for leave to appeal. The Court emphasised the procedural threshold applicable to interlocutory appeals under s 5F of the Criminal Appeal Act 1912. Absent a certificate from the trial judge, leave must be obtained, and the authorities establish that restraint should be exercised in granting such leave.
On the substance, the Court found no error of principle or manifest unreasonableness in Sorby DCJ's ruling. A significant factor was that several of the alleged incidents involving one complainant occurred in the presence of the other. That meant some evidence from each complainant would likely be admissible and relevant to the charges concerning the other, as direct evidence of fact rather than merely tendency evidence.
The Court also noted that the applicant's own police interview record contained admissions regarding conduct towards CD, along with reference to RD's reaction to that conduct. Collusion had not been put to either complainant during the s 48E hearing, and Sorby DCJ was entitled to conclude that collusion or concoction had not been shown to be a real possibility at that stage.
The Court acknowledged that careful jury directions would be necessary, and that questions around tendency evidence (under ss 97 and 101 of the Evidence Act 1995) and discretionary exclusion (under ss 135 and 137) might arise during the trial proper. Those questions were better resolved by the trial judge in full evidentiary context. The applicant's rights to appeal remained available should error occur at trial.
Orders Made
- Application for leave to appeal dismissed.
Key Takeaways
- Refusing to grant leave to appeal against an interlocutory ruling, the Court confirmed that a clear procedural distinction exists between applications for leave and appeals as of right under s 5F of the Criminal Appeal Act 1912, with restraint to be exercised in granting leave.
- Where some evidence from one complainant is likely admissible in the trial of charges concerning another complainant as direct evidence of fact, that cross-admissibility weighs against ordering separate trials.
- No error of principle or manifest unreasonableness is established merely by demonstrating that a joint trial will require careful jury directions; the prospect of managing prejudice through directions is a legitimate consideration.
- The possibility of collusion or concoction between complainants is relevant to the balancing exercise under the tendency evidence provisions and discretionary exclusion provisions of the Evidence Act 1995, but must be shown to be a real, not merely theoretical, possibility before it supports separation.
- Questions of admissibility and discretionary exclusion arising from a joint trial are often better resolved by the trial judge once the full evidentiary picture has emerged, rather than determined speculatively at an interlocutory stage.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 97, 101, 135, 137
Cases
- R v Matovski (1989) 15 NSWLR 720
- R v Rogerson (1990) 45 A Crim R 253
- R v Ho (NSW Court of Criminal Appeal, 18 July 1994, unreported)