Citation: DSJ v R; NS v R [2014] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 13 May 2014
Judge(s): Gleeson JA; Hidden J; Rothman J
Background
Two accused faced insider trading charges under the Corporations Act 2001 (Cth), with 10 counts each on a single indictment. The prosecution alleged that the first applicant, an alleged insider at a credit ratings agency, passed confidential information to the second applicant, who then traded in shares and related financial products in seven listed companies.
The Crown served a Coincidence Notice under s 98 of the Evidence Act 1995, seeking to use the evidence from each count as coincidence evidence across all other counts. The applicants filed motions seeking separate trials for the various charges and a ruling that the coincidence evidence be excluded.
The trial judge (Hall J) dismissed both applications. The applicants sought leave to appeal that interlocutory decision to the Court of Criminal Appeal under s 5F(3)(a) of the Criminal Appeal Act 1912.
Legal Issues
- Whether leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 should be granted against the interlocutory refusal to order separate trials
- Whether the trial judge erred in refusing to order separate trials on the basis that the joint trial was unmanageable, would overwhelm the jury, and would cause unfair prejudice to the applicants
- Whether the trial judge's rulings on the admissibility of coincidence evidence under ss 98 and 101 of the Evidence Act 1995 were amenable to interlocutory appellate review via s 5F
- Whether the discretion to refuse separate trials under s 21 of the Criminal Procedure Act 1986 was exercised on correct principles
Decision
The Court declined to grant leave to appeal, applying the well-established principle that leave should not readily be granted from interlocutory orders in criminal proceedings unless an error of principle is shown that is apt to cause irregularity or injustice. A central consideration was that rulings on the admissibility of evidence are not themselves interlocutory orders within the reach of s 5F, and the coincidence evidence ruling was therefore not directly reviewable at this stage.
The Court noted that, although the separate trials application was formally an interlocutory order, the evidentiary admissibility question was central to it. This strongly weighed against granting leave, consistent with the approach taken in DAO v R [2011] NSWCCA 63. The Court distinguished DAO, where leave had been granted, on the basis that that case raised an important question of principle about the correct approach to tendency evidence under s 97 of the Evidence Act. No comparable question of principle arose here, as the applicable legal framework had already been addressed in earlier proceedings in this very matter.
Applying the appellate restraint required by House v R [1936] HCA 40, the Court found no demonstrated error in the trial judge's exercise of discretion. Hall J had considered and rejected each of the applicants' contentions, including that the trial was unmanageable, that the jury would be overwhelmed, and that the directions required would be impracticably complex. His Honour found that appropriate jury directions could address any unfair prejudice, that the financial transactions themselves were not unduly complex, and that case management techniques could assist the jury in handling the documentary evidence.
The Court also observed that any errors in jury directions, or any miscarriage of justice caused by inadequate directions, would be fully available as grounds of appeal following any conviction. The applicants' appellate rights remained protected. All three judges agreed that the application for leave should be refused.
Orders Made
No orders were made in this decision.
Key Takeaways
- Leave to appeal under s 5F of the Criminal Appeal Act 1912 against an interlocutory refusal to order separate trials is not readily granted, particularly where a ruling on evidentiary admissibility is the central issue in the underlying application.
- Under established authority, decisions on the admissibility of evidence are not interlocutory orders and are not directly reviewable via s 5F, which remains a strong consideration against granting leave even where the separate trials question nominally provides the vehicle for appeal.
- A distinction exists between DAO v R, where leave was granted because a novel and important question of principle about tendency evidence arose, and cases where the applicable legal principles have already been settled, including in earlier proceedings in the same matter.
- Appellate review of a refusal to order separate trials is governed by the restraint principles in House v R: error must be shown in the exercise of the discretion, whether by acting on a wrong principle, ignoring relevant matters, mistaking the facts, or producing a result that is plainly unjust.
- A trial judge's conclusion that unfair prejudice from a joint trial can be addressed by appropriate jury directions does not require the judge to draft those directions at the time the ruling is made; their precise form will appropriately develop as the trial progresses.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 21
- Evidence Act 1995 (NSW), ss 55, 97, 98, 101, 137
- Corporations Act 2001 (Cth), ss 1042A, 1043A
Cases
- DAO v R [2011] NSWCCA 63; 81 NSWLR 568
- House v R [1936] HCA 40; 55 CLR 499
- Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170
- DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758
- R v DSJ; R v NS (No 3) [2013] NSWSC 471
- DSJ v R; NS v R [2012] NSWSC 409
- DSJ v R; NS v R [2011] NSWCCA 222
- Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108
- Hoch v The Queen (1998) 165 CLR 292
- De Jesus v R [1986] HCA 65; 68 ALR 1
- DPP v Boardman [1975] AC 421
- Ludlow v Metropolitan Police Commissioner [1971] AC 29
- In re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318