AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 14 March 2014

McKellar v R

[2014] NSWCCA 35

Assault & violenceHomicide
APPEAL CRIMINAL INTERLOCUTORY APPEAL JOINT TRIAL ACCUSED CRIMINAL APPEAL ACT 1912 (NSW), S 5F

Citation: McKellar v R [2014] NSWCCA 35
Court: Court of Criminal Appeal, NSW
Date: 14 March 2014
Judge(s): Basten JA; Button J; RS Hulme AJ

Background

The applicant was one of four accused standing trial in the Common Law Division on charges arising from a fatal home invasion and robbery. The prosecution alleged that all four participated in a joint criminal enterprise to rob the deceased, and that during the attack both the deceased and his son were stabbed. Two of the co-accused had given police statements identifying the applicant as the person who inflicted the fatal stab wounds. Those statements were inadmissible against the applicant but were before the jury as evidence against the co-accused who made them.

Before the jury was empanelled, the applicant applied for a separate trial, arguing that the inadmissible statements created an unacceptable risk of prejudice. The trial judge dismissed the application, concluding that appropriate jury directions would be sufficient to manage that risk. Reasons were published the following day and the joint trial proceeded.

The applicant then sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW), which permits interlocutory appeals against refusals to order separate trials.

  • Whether the trial judge erred in refusing to order a separate trial, given that inadmissible statements by co-accused identified the applicant as the stabber
  • Whether the trial judge made a material error of fact in characterising how the prosecution intended to use that evidence
  • Whether the trial judge made a material error of fact in describing the sequence of witness identifications of the applicant
  • Whether appellate intervention was warranted at an interlocutory stage, applying the restraint principles from House v The King

Decision

The Court confirmed that the trial judge had applied the correct legal principles. In joint trials, there are strong policy reasons for trying co-accused together, particularly where each seeks to blame the other. The risk of prejudice from inadmissible evidence is ordinarily managed through careful jury directions, unless the prejudice is so severe that directions cannot remedy it. The trial judge's conclusion that directions would suffice was a discretionary judgment entitled to appellate restraint under House v The King.

The applicant raised two alleged factual errors. The first concerned the trial judge's description of how the prosecution intended to use the co-accused's statements. The Court accepted there was a degree of imprecision in the trial judge's characterisation, but held it was not a material error: the prosecution case rested primarily on the joint criminal enterprise theory, meaning it did not need to establish who delivered the fatal blows, and the trial judge had correctly understood that dynamic.

The second alleged error concerned whether the trial judge had wrongly described a particular witness statement as the first occasion on which the victim's son identified the applicant as the stabber. The Court examined the relevant paragraph of that statement and found it did not disclose an earlier identification. No factual error was established.

The Court also noted that the assessment made at the outset of a joint trial is not fixed. As the trial proceeds, rulings on admissibility, addresses, and the summing-up may alter the picture, and the applicant would retain the ability to raise fresh objections or, if convicted, to ground an appeal on actual events rather than predictions. The threshold for interlocutory intervention, namely a clear case of unremediable prejudice, had not been met.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that interlocutory appeals against refusals to order separate trials are available under s 5F of the Criminal Appeal Act 1912 (NSW), though leave is required and appellate restraint principles from House v The King apply.
  • A refusal to order a separate trial will not be overturned on appeal unless the applicant demonstrates a material error of fact, a misapplication of legal principle, or some other identifiable error in the exercise of discretion.
  • Where inadmissible evidence from a co-accused is before the jury, the general approach is that careful and express jury directions can adequately manage the resulting prejudice, unless the prejudice is so severe it is effectively irremediable (as the Court found was the case in R v Pham).
  • No error was established on either factual ground the applicant advanced, and the Court declined to intervene.
  • An initial refusal of a separate trial remains open to reassessment as the trial unfolds; a conviction following joint proceedings may later ground an appeal based on what actually occurred, rather than what was merely predicted at the pre-trial stage.

Legislation and Cases Referenced

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

Cases
- DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568
- House v The King [1936] HCA 40; 55 CLR 499
- R v Basha (1989) 39 A Crim R 337
- R v Pham [2004] NSWCCA 190
- R v Webb and Hay (1992) 59 SASR 563
- Symss v The Queen [2003] NSWCCA 77
- Webb v The Queen; Hay v The Queen [1994] HCA 30; 181 CLR 41