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Court of Criminal Appeal 13 March 2015

KG v R

[2015] NSWCCA 33

Sexual offences
CRIMINAL LAW LEAVE TO APPEAL APPEAL LEAVE GRANTED APPEAL DISMISSED

Citation: KG v R [2015] NSWCCA 33
Court: Court of Criminal Appeal, NSW
Date: 13 March 2015
Judges: Ward JA (principal judgment); Simpson J and Davies J (agreeing)

Background

The appellant was charged alongside her husband (the co-accused) with a series of sexual offences against their three daughters. The appellant faced 15 counts, including acts of indecency, indecent assault, and one count of sexual intercourse without consent, largely involving allegations that she demonstrated and instructed sexual acts to her daughters. The co-accused faced 87 counts involving a much larger and more serious body of conduct, including repeated penetration with implements and other violent and sadistic acts against the principal complainant.

The two accused were to be tried jointly in the District Court. The appellant applied to Christie ADCJ for a separate trial, arguing that she would suffer significant prejudice from being tried alongside her husband given the disparity in the nature and volume of the evidence against each accused. That application was refused on 16 September 2014.

The appellant then sought leave to appeal to the Court of Criminal Appeal from that interlocutory decision, also seeking an extension of time to file the application. The Crown did not oppose the extension of time but opposed the grant of leave and the appeal itself.

  • Whether Christie ADCJ erred in the exercise of his discretion in refusing to order a separate trial for the appellant.
  • Whether the prejudice to the appellant from a joint trial was of the kind that could not adequately be addressed by appropriate jury directions.
  • Whether the three circumstances identified in R v Middis (in which a separate trial would usually be ordered) were present and required severance.

Decision

The Court of Criminal Appeal granted the extension of time and leave to appeal, but ultimately dismissed the appeal. The applicable standard for appellate intervention was the House v The King test: the appellant had to demonstrate that the primary judge acted on a wrong principle, allowed extraneous or irrelevant matters to influence the decision, made an error of fact, or failed to take into account a material consideration, or that the outcome was so unreasonable as to bespeak error of that kind.

The appellant relied on the three Middis circumstances: that the evidence against her was significantly weaker and different from the evidence against the co-accused; that the violent and sadistic acts alleged against the co-accused were highly prejudicial to her but inadmissible against her; and that there was a real risk that the jury would use evidence against the co-accused to reason improperly against the appellant. Ward JA acknowledged that these concerns had real substance, particularly given the volume and nature of the Crown case against the co-accused.

Despite those concerns, the Court found no appellate error in Christie ADCJ's conclusion that the prejudice could be adequately addressed by strong jury directions. The primary judge had reasoned that a substantial volume of the evidence relating to the co-accused would, in any event, be admissible as context evidence in a separate trial of the appellant. He also found that separating the trials would require the principal complainant to give repetitive evidence of her history of sexual assault across two proceedings.

Ward JA noted that an appropriate course at trial may be to have the jury deliberate first on the charges against the appellant before turning to those against the co-accused, and that the kind of strong quarantining directions considered in Darwiche v R would be expected. The conclusions reached by the primary judge were neither unfounded nor unreasonable, and no error warranting appellate intervention was established.

Orders Made

  • Extension of time to file the application for leave to appeal granted (to 23 October 2014).
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an interlocutory refusal of a separate trial application will only be disturbed on appeal where error of the House v The King variety is demonstrated: wrong principle, irrelevant considerations, factual error, or an outcome so unreasonable as to bespeak such error.
  • The three Middis circumstances (materially weaker evidence against one accused, highly prejudicial but inadmissible evidence from the co-accused's case, and risk of jury reasoning contamination) remained the accepted framework for identifying when separate trials would ordinarily be ordered, but their presence does not automatically mandate severance.
  • A trial judge's finding that prejudice can be adequately managed by strong jury directions is a legitimate basis for refusing severance, even in a joint trial involving violent and sadistic conduct alleged only against one accused.
  • Where co-accused evidence would in any event be admissible as context evidence in a separate trial, the weight of that prejudice argument is reduced accordingly.
  • The Court observed that directing a jury to deliberate on charges against one co-accused before turning to the other's charges may be an appropriate mechanism for managing the risk of cross-contamination in a joint trial of this kind.

Legislation and Cases Referenced

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

Cases
- House v The King [1936] HCA 40; (1936) 55 CLR 499 (standard for appellate intervention in discretionary decisions)
- R v Middis (Supreme Court (NSW), 27 March 1991, unrep) (three circumstances where separate trial usually ordered)
- Darwiche v R [2011] NSWCCA 62 (strong quarantining directions in joint sexual assault trials)
- De Jesus v The Queen [1986] HCA 65; (1986) 22 A Crim R 375 (sexual cases particularly likely to arouse jury prejudice)
- Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
- Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
- R v Demirok [1976] VR 244
- Verma v R (1987) 30 A Crim R 441