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Court of Criminal Appeal 11 December 2019

Hough v R

[2019] NSWCCA 293

Assault & violenceTheft & property
CRIMINAL LAW ACCUSED LEAVE TO APPEAL REFUSED

Citation: Hough v R [2019] NSWCCA 293
Court: Court of Criminal Appeal, New South Wales
Date: 11 December 2019
Judges: Hoeben CJ at CL, Walton J, Price J

Background

The applicant and a co-accused were jointly charged in the Gosford District Court with breaking and entering a dwelling with a serious indictable offence, and two counts of recklessly wounding the occupants. The Crown alleged that on the night of 8 December 2017, four men forced entry into a home at Blue Haven on the NSW Central Coast, demanded money and drugs, assaulted two occupants, and stole several hundred dollars and a bag. The Crown's case against both accused rested substantially on forensic evidence: DNA matches from blood stains and fingerprints placed each accused at the scene.

Police obtained recordings of telephone calls made by the co-accused from custody between January and March 2018. Those calls included statements inconsistent with the co-accused's police interview denials, particularly his claims that he did not know the applicant and had never been to the property. In one call, the co-accused's conversation partner suggested his DNA could be explained by a prior visit to buy cannabis, and the co-accused responded that he had not wanted to tell police he had been "selling to the bloke."

The applicant applied for a separate trial under s 21(2) of the Criminal Procedure Act 1986 (NSW), arguing that the telephone intercept evidence, admissible only against the co-accused, would unfairly prejudice his defence. The primary judge dismissed that application. The applicant then sought leave to appeal that interlocutory ruling to the Court of Criminal Appeal.

  • Whether the primary judge erred in dismissing the application for a separate trial from the co-accused under s 21(2) of the Criminal Procedure Act 1986 (NSW)
  • Whether the telephone intercept evidence was of a kind not amenable to curative jury directions
  • Whether any prejudice to the applicant arising from that evidence was so significant that adequate jury directions could not address it

Decision

The Court of Criminal Appeal unanimously found no error in the primary judge's decision and refused leave to appeal.

The Court accepted that the telephone intercept material was admissible only against the co-accused, and that the Crown had already made redactions removing the most potentially prejudicial references, including mentions connecting the applicant to a particular location. The Court found that the remaining content did not give rise to any significant available inference against the applicant, noting specifically that the co-accused's statement about "selling to the bloke" was offered as an exculpatory explanation for the presence of the co-accused's forensic material at the scene, rather than as evidence implicating the applicant in drug activity or providing him with a motive to offend.

The Court confirmed that the prejudice associated with the telephone intercepts could be adequately addressed by judicial directions to the jury. Relying on the well-established principle that juries are presumed to accept and act on directions given by the trial judge, the Court held there was no sufficient basis to conclude the jury would be unable or unwilling to follow appropriate directions limiting the use of the intercept evidence to the case against the co-accused only.

The Court also noted it was not necessary for the primary judge to address every possible remote inference in his reasons. The primary judge had adequately assessed the potential for prejudice arising from the inadmissible evidence in the context of the overall case.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Refusing the application, the Court of Criminal Appeal confirmed that the mere fact that intercept evidence is inadmissible against one co-accused does not, of itself, warrant a separate trial where adequate jury directions can cure any prejudice.
  • A long-standing principle underpins this area of law: courts proceed on the basis that juries will accept and obey directions given by the trial judge, including directions limiting the use of evidence to a specific accused.
  • Under s 21(2) of the Criminal Procedure Act 1986 (NSW), an applicant seeking a separate trial on grounds of prejudice must demonstrate that the prejudice is of a kind not amenable to such curative directions.
  • Where telephone intercept material is framed in the co-accused's own conversation as an exculpatory explanation rather than as inculpatory evidence, the inference chain required to implicate the other accused may be too remote to sustain an argument of incurable prejudice.
  • No error was established in a trial judge's reasons simply because every conceivable remote inference from intercept evidence was not expressly addressed in the judgment below.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 112(2)
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
- Criminal Procedure Act 1986 (NSW), s 21(2)

Cases:
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- R v Chami; R v Sheikh (2002) 128 A Crim R 428; [2002] NSWCCA 136
- R v Middis (Unreported, Supreme Court of New South Wales, 27 March 1991)
- Trotter v R [2016] NSWCCA 57
- Webb & Hay v R (1994) 181 CLR 41; [1994] HCA 30
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28