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Court of Criminal Appeal 14 December 2000

R v Dinh

[2000] NSWCCA 536

Also reported as (2000) 120 A Crim R 42
Homicide

Citation: R v Dinh [2000] NSWCCA 536
Court: NSW Court of Criminal Appeal
Date: 14 December 2000
Judge(s): Fitzgerald JA; Simpson J; Howie J

Background

The applicant was charged with the murder of John Newman, a NSW Member of Parliament, who was shot dead on 5 September 1994. The Crown alleged that the applicant fired the shots, that a co-accused organised the killing, and that a third co-accused drove the getaway vehicle. The prosecution case depended heavily on evidence from two witnesses who had been granted indemnities from prosecution.

An earlier trial of two co-accused ended in a hung jury in May 2000. Before that trial, Wood CJ at CL had ordered that the applicant be tried separately, primarily because he was not then satisfied that evidence of events occurring before the night of the shooting was admissible against the applicant. That conclusion was reached on the basis of a witness statement alone, before the witness had given live evidence.

After the hung jury, the Crown applied to Dunford J for a joint trial of all three accused. Dunford J had the benefit of the full transcript of that earlier trial, including the witness's oral evidence. He granted the application. The applicant sought leave to appeal that order under s 5F of the Criminal Appeal Act 1912.

  • Whether Dunford J had the power to reconsider and revoke an earlier order for a separate trial made by a different judge
  • Whether sufficient new material existed to justify re-ventilating the joint trial question
  • Whether the evidence of events occurring before the night of the shooting was admissible against the applicant in a joint trial
  • Whether any prejudice to the applicant from a joint trial could be adequately addressed by jury directions

Decision

The Court of Criminal Appeal confirmed that a second trial judge is not bound by a prior severance ruling made by a different judge. Drawing on the approach articulated in R v Saunders and the English Court of Appeal's reasoning in R v Wright, the Court held that a subsequent judge may reconsider the question of a joint or separate trial where something material has changed. Dunford J was entitled to form his own view, given that the transcript of the first trial represented genuinely new material that had not been available to Wood CJ at CL.

On the admissibility question, Dunford J had concluded that evidence of the events and arrangements made before 5 September 1994 was generally admissible against the applicant. The Court of Criminal Appeal was not persuaded that Dunford J had erred in that tentative view. Without the background evidence, the Court reasoned, a jury would lack the context needed to properly evaluate the credibility of the Crown's key witnesses and the significance of events on the night of the shooting.

The Court declined to make any definitive ruling on the admissibility of specific pieces of evidence, noting that such determinations are appropriately left to the trial judge as the case unfolds. Dunford J had expressly acknowledged his obligations under ss 135, 136, and 137 of the Evidence Act 1995 to exclude or limit the use of evidence where its prejudicial effect warranted it.

On the question of prejudice, the Court accepted Dunford J's conclusion that appropriate jury directions could cure any potential prejudice arising from a joint trial. The Court noted that both the trial judge and the appellate court are entitled to proceed on the assumption that jurors will follow directions given to them. Fitzgerald JA added that the applicant's appellate rights on conviction would remain unaffected by the current application.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A trial judge is not bound by a prior severance ruling made by a different judge, but should only reconsider the question where something material has changed since the original order was made.
  • Where new material exists, such as a full trial transcript that was unavailable to the earlier judge, a subsequent judge has a discretion to re-examine the joint trial question afresh.
  • The Court of Criminal Appeal confirmed that appellate courts will not intervene in a joint trial order merely because a different judge earlier took a different view, absent an identifiable error of principle or a decision outside the range of sound discretion.
  • Potential prejudice from a joint trial does not automatically warrant severance; the court may instead rely on the trial judge's capacity to give appropriate directions under the Evidence Act 1995, including under ss 135, 136, and 137.
  • Granting leave to appeal while dismissing the appeal preserved the applicant's full appellate rights on conviction, with the Court of Criminal Appeal expressly declining to make any binding rulings on the admissibility of particular evidence at the pre-trial stage.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 135, 136, 137

Cases
- Middis (SC NSW, Hunt J, 17 March 1991)
- Baartman (NSWCCA, 6 October 1994)
- R v Fernando [1999] NSWCCA 66
- R v Georgiou [1999] NSWCCA 125
- R v Masters (1992) 26 NSWLR 450
- R v Chai (1992) 27 NSWLR 153
- R v Nguyen (CCA, 23 September 1998)
- R v Saunders (1994) 72 A Crim R 347
- R v Van Phu Ho (NSWCCA, unreported, 18 July 1994)
- House v The King (1936) 55 CLR 499
- Alexandroaia v R (1995) 81 A Crim R 286
- R v Steffan (1993) 30 NSWLR 633
- R v Matovski (1989) 15 NSWLR 720
- R v Wright (1990) 90 Cr App R 315
- R v Bilick and Starke (1984) 11 A Crim R 452
- Tripodi v R (1961) 104 CLR 1
- Harriman v R (1989) 167 CLR 590
- Wilson v R (1970) 123 CLR 334