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Court of Criminal Appeal 15 September 2005

Regina v CE

[2005] NSWCCA 326

Sexual offencesAssault & violence
CRIMINAL LAW AND PROCEDURE NECESSARY ORDER TO AVOID UNFAIR TRIAL

Citation: Regina v CE [2005] NSWCCA 326
Court: NSW Court of Criminal Appeal
Date: 15 September 2005
Judge(s): Grove J, Hall J, Smart AJ

Background

Three accused, referred to as CE, BT, and CP, faced an indictment in the District Court arising from alleged events at a Sydney flat on 30 July 2004. The charges included assault occasioning actual bodily harm and multiple counts of sexual intercourse without consent with actual bodily harm, framed as joint offences between CE and each co-accused respectively.

When the indictment was presented, CE applied for a separate trial from BT and CP. The District Court judge (Shadbolt DCJ) refused that application, prompting CE to seek leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.

The appeal turned on whether trying CE jointly with BT would cause CE positive injustice, given the defence BT intended to run.

  • Whether the interlocutory refusal of a separate trial was appealable under s 5F of the Criminal Appeal Act 1912
  • Whether the particular prejudice CE would face in a joint trial with BT was of a kind that could cause positive injustice, not merely some inconvenience
  • Whether any judicial direction could adequately address that prejudice
  • Whether the accumulation of prejudicial factors, including the contrast with CP's good character direction, reinforced the case for a separate trial

Decision

The general rule, confirmed in Webb v The Queen, is that persons jointly charged should be tried together, even where they seek to blame each other. However, that rule yields where a joint trial would cause positive injustice to an accused. The applicable threshold, drawn from Hunt J's analysis in R v Middis, is that the particular prejudice relied upon must be shown to be of a kind that, if it arises, would result in positive injustice rather than mere inconvenience.

The Court found that BT's proposed duress defence would require adducing highly prejudicial material about CE, including assertions that CE was a violent man, a member of a motorcycle gang, had a collection of guns, and had served a prior gaol sentence for menacing. None of this evidence was part of the Crown's case, and its potential introduction arose solely from CE and BT being tried together. The Court found CE's criminal record, consistent with some of those assertions, would be further exposed if CE gave evidence.

Grove J held that the trial judge had recognised that CE might suffer "difficulties" but had not adequately identified what those difficulties were or explained how judicial directions could ameliorate them. Smart AJ added that no direction would be sufficient to neutralise the prejudice arising from BT's proposed defence, reinforced by disclosure of CE's record. The Court also noted the contrast with CP, who had no prior convictions and would be entitled to a good character direction, though this factor alone would not have justified separate trials.

The Court acknowledged the burden placed on the complainant by requiring testimony in more than one proceeding, but weighed that against the risk of conducting a trial likely to generate appellate consequences producing further, more delayed proceedings. The Court considered that, if multiple trials were inevitable, it was preferable they occur promptly.

Orders Made

  • Leave to appeal against the order refusing separate trials granted
  • Appeal allowed and the order of the District Court refusing separate trials quashed
  • In lieu thereof, CE to be tried separately from BT and CP on the indictment

Key Takeaways

  • The threshold for ordering a separate trial is not that positive injustice is more likely than not, nor that a mere possibility of prejudice exists. Rather, the applicant must show that the particular prejudice relied upon would, if it arises, result in positive injustice in a joint trial.
  • Where a co-accused's intended defence would introduce highly prejudicial character evidence about another accused, and that evidence is entirely foreign to the Crown's case, the joint trial framework may not be capable of producing a fair result for that other accused.
  • Judicial directions are not always an adequate remedy for prejudice in joint trials. The Court of Criminal Appeal confirmed that where the nature and volume of prejudicial material is such that no direction could realistically neutralise it, separation is the necessary order.
  • The accumulation of prejudicial factors is relevant. Although the contrast between an accused with a criminal record and a co-accused entitled to a good character direction would not alone justify separate trials, it formed part of the overall assessment of the likely injustice to CE.
  • Inconvenience to a complainant who may be required to testify more than once is a legitimate consideration, but it does not override the obligation to avoid conducting a trial that is predictably likely to result in unfairness.

Legislation and Cases Referenced

Legislation:
- s 5F, Criminal Appeal Act 1912 (NSW)

Cases:
- Webb v The Queen (1994) 181 CLR 41
- R v Oliver (1987) 57 ALR 543
- R v Patsalis & anor (1999) 107 A Crim R 432; [2001] NSWCCA 476
- R v Middis, NSWSC, unreported, 27 March 1991