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Court of Criminal Appeal 16 March 2012

Billings v R

[2012] NSWCCA 33

Assault & violenceHomicideTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL S 5F WHERE ONE COUNT IS A COUNT OF MURDER

Citation: Billings v R [2012] NSWCCA 33
Court: Court of Criminal Appeal, NSW
Date: 16 March 2012
Judges: McClellan CJ at CL, R A Hulme J, Schmidt J

Background

The applicant faced a recast indictment of 14 counts arising from nine separate events across the Sydney metropolitan area between December 2006 and February 2007. The charges included murder, armed robbery, attempted armed robbery, assault with intent to take a motor vehicle, shooting with intent to murder, and shooting with intent to cause grievous bodily harm.

Before trial, the applicant applied under s 21(2) of the Criminal Procedure Act 1986 to sever the murder count from the remaining counts, and in the alternative, to sever some of the other counts. The applicant also sought pre-trial rulings on the admissibility of tendency and coincidence evidence. The trial judge rejected both the primary and alternative severance applications, and declined to rule on tendency and coincidence admissibility before trial.

The applicant then sought leave to appeal under s 5F of the Criminal Appeal Act 1912, arguing the trial judge had given excessive weight to the inconvenience that multiple separate trials would cause to witnesses, at the expense of fairness to the accused.

  • Whether the trial judge erred in refusing to sever the murder count from the other 13 counts on the indictment
  • Whether the trial judge erred in refusing to sever any of the other counts from each other
  • Whether the trial judge gave excessive weight to witness inconvenience when balancing the interests of justice under s 29(3) of the Criminal Procedure Act 1986
  • Whether counts 5 and 6 (events at Liverpool and Miller on 7 January 2007) were properly joined where no evidence from those counts appeared directly relevant to any other count

Decision

McClellan CJ at CL, with whom Hulme J and Schmidt J agreed, found that the trial judge had not erred in his overall approach. The evidence relating to counts 1, 7, 8, 13 and 14 was relevant and probative in relation to the murder count (count 11), and evidence from each of the remaining counts (other than counts 5 and 6) was admissible in relation to at least one of those counts. Given that evidentiary web, the Chief Judge concluded it was appropriate for all those counts, except possibly counts 5 and 6, to be heard together.

On the question of inconvenience to witnesses, the Court accepted that the trial judge had considered it but did not give it excessive weight. The overall conclusion on joinder was open to the trial judge on the evidence and the statutory framework.

Counts 5 and 6 presented a distinct concern. The Court noted that no evidence from those counts appeared relevant to any other count, other than potentially through tendency or coincidence reasoning, which the trial judge had not yet resolved. McClellan CJ at CL expressed doubt about whether counts 5 and 6 should remain joined if the trial judge ultimately found that their evidence could not be used for tendency or coincidence purposes in relation to other counts. However, because the trial judge had not yet made that final determination, it was premature for the Court of Criminal Appeal to intervene. McClellan CJ at CL observed that the prosecutor should give further consideration to whether counts 5 and 6 should be retained, and that the issue might appropriately be re-agitated before the trial judge prior to the jury being empanelled.

The Court refused leave to appeal, finding that no error by the trial judge had been established that required intervention.

Orders Made

• Leave to appeal refused

Key Takeaways

  • The Court of Criminal Appeal confirmed that the joinder of counts under s 29 of the Criminal Procedure Act 1986 is governed by whether the offences arise from the same circumstances or form a series of offences of the same or similar character, subject always to the interests of justice under s 29(3).
  • In dismissing the leave application, the Court found that a trial judge's consideration of inconvenience to witnesses, the prosecution, and the defence does not automatically amount to excessive weight being placed on those factors, provided it forms part of a broader balancing exercise.
  • Where evidence relating to several counts is cross-admissible and relevant to a murder charge, a trial judge's decision to hear those counts together is unlikely to constitute appellate error.
  • A distinct threshold applies to the joinder of counts where no evidence from those counts is directly relevant to any other count on the indictment. Without admissibility through tendency or coincidence reasoning, the justification for joinder may be insufficient, particularly if the accused faces a real risk of significant prejudice.
  • Under s 5F of the Criminal Appeal Act 1912, interlocutory appeals from pre-trial rulings require the applicant to establish actual error by the trial judge; the mere presence of complexity or multiple counts is not sufficient.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 21, 29
- Evidence Act 1995 (NSW), Part 3.6 (tendency and coincidence evidence)

Cases
- DAO v The Queen [2011] NSWCCA 63; 278 ALR 765
- De Jesus v The Queen [1986] HCA 65; (1986) 22 A Crim R 375
- DPP v Coelho, Tabbit and SPA [2007] VSC 137
- Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
- KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
- Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
- R v Pollit [1991] 1 VR 299
- R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504
- Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528