Citation: R v DK [2008] NSWCCA 249
Court: NSW Court of Criminal Appeal
Date: 8 October 2008
Judge(s): Hodgson JA, Kirby J, Hislop J
Background
The applicant faced three counts on a single indictment in the District Court. The first two counts alleged obtaining a financial advantage by deception, and the third alleged dealing with the proceeds of crime where the amount exceeded $100,000. All three counts arose under the Criminal Code Act 1995 (Cth).
The applicant applied to the trial judge, Toner DCJ, to sever the third count from the indictment so that it would be tried separately. That application was refused. The applicant then sought leave to appeal that refusal to the Court of Criminal Appeal.
Legal Issues
- Whether the three counts appropriately belonged in the one indictment, given the applicant's contention that they did not arise from the same set of circumstances
- Whether evidence admissible on the proceeds-of-crime count could be improperly used by the jury when considering the deception counts
- Whether joining the counts would unfairly deprive the applicant of lines of defence available to him if the counts were tried separately
Decision
Hodgson JA, with Kirby J and Hislop J agreeing, held that no reasonable possibility of error in the primary judge's decision had been shown on any of the three grounds raised.
On the question of whether the counts arose from the same circumstances, the Court of Criminal Appeal accepted the trial judge's view that they did, having regard to the Crown's outline of submissions setting out the factual matrix of the case.
On the risk of cross-contamination of evidence, Hodgson JA reasoned that evidence relevant to each count was likely to be relevant and admissible in relation to the others. Where any particular piece of evidence was not admissible on all counts, appropriate jury directions were considered sufficient to address any resulting prejudice.
On the deprivation of defence argument, the Court noted that no evidence had been put forward in support of that claim. Without evidentiary foundation, there was no basis to disturb the trial judge's conclusion.
Orders Made
- Application for leave to appeal refused
Key Takeaways
- No error was established in the trial judge's refusal to sever a proceeds-of-crime count from two fraud counts on the same indictment, where all three counts arose from the same factual circumstances.
- The Court of Criminal Appeal confirmed that the risk of a jury misusing evidence across counts does not automatically warrant severance; appropriate directions to the jury are generally regarded as an adequate safeguard.
- A bare assertion that joined counts will deprive an accused of lines of defence carries no weight without supporting evidence.
- Refusing leave to appeal, the Court of Criminal Appeal applied the principle that leave will not be granted where no reasonable possibility of error in the primary decision has been demonstrated.
- Under the Criminal Code Act 1995 (Cth), offences of obtaining a financial advantage by deception and dealing with proceeds of crime can be charged together in one indictment where the factual circumstances sufficiently connect them.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), s 134.2.1 (obtaining a financial advantage by deception)
- Criminal Code Act 1995 (Cth), s 400.4.1 (dealing with proceeds of crime, amount exceeding $100,000)
Cases: No cases were cited in the judgment.