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Court of Criminal Appeal 24 May 2017

Commonwealth Director of Public Prosecutions v Burrows

[2017] NSWCCA 105

Drugs
CRIMINAL LAW LIMITED EVIDENCE AGAINST RESPONDENT DISCRETIONARY ERROR NOT DEMONSTRATED APPEAL DISMISSED

Citation: Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105
Court: Court of Criminal Appeal, New South Wales
Date: 24 May 2017
Judges: Johnson J (with whom Fullerton J and Adamson J agreed)

Background

The respondent was charged with possession of a marketable quantity of cocaine, alleged to have occurred over two days in February 2015. His alleged involvement was limited to attending a warehouse and handling flower boxes from which cocaine had apparently already been removed. Four co-accused faced a separate, substantially heavier charge: conspiracy to import a commercial quantity of cocaine spanning roughly nine months.

All five accused were named on a single indictment, with the joint trial listed to commence on 1 May 2017 with a three-month estimate. The respondent applied in the District Court for a separate trial, arguing that being tried alongside the conspiracy accused would cause him real injustice given the disparity in the evidence and the nature of the charges.

On 30 March 2017, Sweeney DCJ granted the application. The Commonwealth Director of Public Prosecutions then appealed to the Court of Criminal Appeal under s 5F(2) of the Criminal Appeal Act 1912, seeking to reinstate the joint trial.

  • Whether the primary judge erred in the exercise of discretion by ordering a separate trial for the respondent
  • Whether the risk of positive injustice to the respondent was a sufficient basis for the separate trial order
  • Whether the cost implications for the Legal Aid Commission were a relevant consideration on a separate trial application
  • Whether the volume of evidence relating to the conspiracy count would prejudice the respondent's fair trial if the matters proceeded jointly

Decision

The court applied the well-established test from House v The King (1936) 55 CLR 499, which requires an appellant to demonstrate that the primary judge acted on a wrong principle, was guided by irrelevant matters, mistook the facts, failed to consider a material matter, or reached a result so unreasonable as to suggest a failure to exercise the discretion properly. The court emphasised that separate trial orders are interlocutory decisions about practice and procedure, attracting a high degree of appellate restraint.

The court found no such error. The primary judge was entitled to conclude that the respondent faced a real risk of positive injustice if tried jointly. The conspiracy charge involved allegations spanning many months and would generate a substantial body of evidence with no bearing on the respondent's two-day involvement. The disparity in the scale and nature of the charges was a legitimate basis for concern about fairness to the respondent.

Johnson J also addressed the practical conduct of the proposed separate trial, observing that professional obligations on prosecution and defence counsel would significantly limit any duplication of evidence. A separate trial of the respondent, properly conducted, was expected to occupy approximately two weeks rather than three months. The court affirmed that the expense to the community through the Legal Aid Commission was a factor capable of being weighed in the discretionary exercise, though it was not treated as decisive.

The court was explicit that its decision turned on the particular facts of this case. Johnson J specifically noted that counsel for the Director had come close to raising a "floodgates" argument about small participants in large drug importation matters, but appropriately drew back from that position. The court stated clearly that no new principle concerning separate trial applications had been laid down.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • Appellate courts apply a high degree of restraint when reviewing interlocutory decisions on separate trial applications, given the difficulty of anticipating how a trial will unfold before it begins.
  • Under the House v The King principles, an appellant must demonstrate a specific form of error in the exercise of discretion; it is not enough to argue that a different outcome was also available.
  • A risk of positive injustice to an accused can justify a separate trial order where the volume and nature of evidence on charges against co-accused greatly exceeds the evidence relevant to that accused's own charge.
  • The Court of Criminal Appeal confirmed that cost implications for the Legal Aid Commission are a relevant, though not determinative, consideration on a separate trial application, following R v Quami and Ors (No. 3) [2016] NSWSC 15.
  • In dismissing the appeal, the court was careful to confine its reasoning to the specific facts, expressly declining to establish any broader principle governing separate trial applications involving alleged minor participants in large drug importation conspiracies.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Criminal Code Act 1995 (Cth), ss 11.5(1), 307.1(1), 307.6(1)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Legal Profession Uniform Conduct (Barristers) Rules 2015
- District Court Rules 1973 (NSW)

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- R v Guldur (1986) 8 NSWLR 12
- R v Douglas [2000] NSWCCA 275
- R v Saunders (1994) 72 A Crim R 347
- R v Quami and Ors (No. 3) [2016] NSWSC 15
- R v Bikic (2000) 112 A Crim R 300; [2000] NSWCCA 106
- R v CE [2005] NSWCCA 326
- R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248
- R v Middis (Hunt J, unreported, 27 March 1991)
- Symss v R [2003] NSWCCA 77
- Trotter v R [2016] NSWCCA 57
- Webb and Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30