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Court of Criminal Appeal 16 July 2004

REGINA v PHAM

[2004] NSWCCA 190

Homicide
JOINT TRIAL WHETHER MISCARRIAGE RESULTED RELEVANT PRINCIPLES APPEAL ALLOWED

Citation: Regina v Pham [2004] NSWCCA 190
Court: New South Wales Court of Criminal Appeal
Date: 16 July 2004
Judge(s): Spigelman CJ, Hulme J, Adams J

Background

The appellant was convicted of murder following a joint trial with his brother and a third co-accused. The prosecution alleged that the victim was driven to a park and shot, with the appellant present in the vehicle in an accessory role. The appellant did not give evidence, and his counsel advanced the position that he was merely a mediator or "honest broker" in the events leading to the killing.

The Crown's case against the appellant rested primarily on the evidence of two witnesses: the shooter, who had pleaded guilty and received a sentencing discount in exchange for his cooperation, and another man who had been present in the vehicle. Both witnesses were subject to significant credibility challenges at trial.

Critically, a recorded interview given by the appellant's brother was admitted into evidence at the joint trial. That interview was admissible only against the brother, not against the appellant. It contained statements that substantially corroborated the Crown witnesses and implicated the appellant in the planning and motive for the killing.

  • Whether the trial judge erred in refusing to order a separate trial for the appellant, given the existence of a co-accused's recorded interview that was inadmissible against the appellant but highly incriminating of him.
  • Whether the joint trial resulted in a miscarriage of justice for the appellant.
  • Whether the jury's verdict convicting the appellant was unreasonable having regard to the evidence.

Decision

The Court of Criminal Appeal allowed the appeal on the first ground, finding that the joint trial had miscarried. The primary concern was the Crown Prosecutor's closing address, which made extensive use of the brother's recorded interview to bolster the credibility of the two principal Crown witnesses. Because that interview was inadmissible against the appellant, the Crown's reliance on it to vouch for witness reliability created an insuperable problem for the jury.

Hulme J identified the core difficulty: once the jury had used the interview to assess the reliability of the Crown witnesses in the case against the brother, it was not practically possible for the same jury to form a separate and independent assessment of those witnesses when considering the case against the appellant. The judge's directions to put the interview out of mind could not achieve that separation in these circumstances. Hulme J acknowledged that juries can and generally do follow judicial directions, but concluded that two genuinely independent credibility assessments of the same witnesses, one using the interview and one ignoring it, were not achievable here.

Adams J agreed, finding it very likely, if not certain, that the jury could not have disregarded the prejudicial statements in the brother's interview when deliberating on the appellant's guilt. The interview confirmed the appellant's motive and involvement from an apparently independent and knowledgeable source, materially strengthening a Crown case that otherwise turned almost entirely on the credibility of two compromised witnesses.

On the second ground, the Court rejected the contention that the verdict was unreasonable. The area of factual dispute was narrow, the appellant's "honest broker" explanation was not inherently credible, and the jury was entitled to accept the evidence of the Crown witnesses on the essential issues. However, given the miscarriage on the first ground, a new trial was ordered.

Orders Made

  • Appeal allowed.
  • Verdict quashed.
  • New trial ordered.

Key Takeaways

  • A joint trial can result in a miscarriage of justice where a co-accused's recorded interview, inadmissible against another accused, is used so prominently by the Crown that the jury cannot realistically form separate assessments of the same witnesses for each accused.
  • The Court of Criminal Appeal confirmed that the principles governing a trial judge's discretion to order separate trials, as articulated in R v Middis and accepted in subsequent CCA decisions, remain the applicable framework; departure from those principles after admitting highly prejudicial and inadmissible co-accused evidence can constitute error.
  • Judicial directions to the jury to disregard inadmissible material are not always sufficient to cure the prejudice arising from a joint trial, particularly where the prosecution's address has actively used that material to shore up the credibility of key witnesses.
  • A verdict will not be characterised as unreasonable merely because the Crown's principal witnesses were compromised or credibility-challenged, provided the jury was entitled to accept their evidence on the essential issues and the findings were not inherently improbable.
  • Where a miscarriage is established on procedural grounds but the evidence does not compel an acquittal, the appropriate remedy is a new trial rather than a verdict of acquittal.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW) s 165

Cases:
- Gilbert v R (2000) 201 CLR 414
- R v Baartman (unreported, Court of Criminal Appeal, 6 October 1994)
- R v Fernando [1999] NSWCCA 66
- R v Middis (unreported, NSWSC, 27 March 1991)
- Webb and Hay v The Queen (1993) 181 CLR 41