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Court of Criminal Appeal 23 October 2020

Pantea v R

[2020] NSWCCA 278

Theft & property
CRIMINAL LAW PRACTICE AND PROCEDURE WHERE APPLICANT AND CO ACCUSED AND A WITNESS WHERE CO WHERE NEITHER THE CO

Citation: Pantea v R [2020] NSWCCA 278
Court: NSW Court of Criminal Appeal
Date: 23 October 2020
Judge(s): Hoeben CJ at CL, Harrison J, Bellew J (unanimous)

Background

The applicant was jointly indicted in the District Court with a co-accused on two counts of robbery in company, arising from incidents in Surry Hills in the early hours of 29 November 2018. The Crown case alleged that the applicant, the co-accused, and a third person (who had already pleaded guilty) carried out two separate street robberies within a few hours of each other, with CCTV footage and witness evidence linking all three to the offending.

The difficulty for the applicant arose from two telephone conversations in which the co-accused made admissions about the offending to a witness. Those conversations did not mention or implicate the applicant in any way. The applicant applied to the trial judge for a separate trial, arguing that the admission of those conversations in a joint trial would cause him specific prejudice.

The trial judge, Judge King SC, refused the separate trial application. The applicant sought leave to appeal that refusal to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912 (NSW).

  • Whether the trial judge erred in the exercise of his discretion by refusing the applicant's application for a separate trial.
  • Whether the admission of the co-accused's telephone conversations, which contained admissions not implicating the applicant, would cause specific prejudice to the applicant in a joint trial.
  • Whether standard jury directions, instructing the jury not to have regard to those conversations when considering the case against the applicant, would be sufficient to address any prejudice.
  • Whether the decision in Hamalainen v R [2019] NSWCCA 276, where a separate trial was granted because co-accused admissions implicated the other accused, applied to the present facts.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, with reasons given by Bellew J (Hoeben CJ at CL and Harrison J agreeing). The Court granted leave to appeal but concluded that the trial judge had not erred in refusing the separate trial application.

The Court's analysis centred on a key factual distinction. The co-accused's admissions to the witness were about the co-accused's own conduct only; neither the co-accused nor the witness implicated the applicant in the telephone conversations. Because the admissions carried no reference to the applicant, the Court found it difficult to identify any mechanism by which those admissions could be impermissibly used by the jury to undermine or bolster assessments of the applicant's case. The jury would, in any event, be directed not to have regard to those conversations when considering the evidence against the applicant.

The Court distinguished the present facts from those in Hamalainen v R, where a separate trial had been granted because the admissions made by one accused directly implicated the co-accused, creating a real risk that the jury would use inadmissible evidence to assess credit against that co-accused. That risk did not arise here. The Court found no specific prejudice to the applicant from a joint trial that would warrant the grant of a separate trial.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A refusal to grant a separate trial is a discretionary decision; the Court of Criminal Appeal confirmed that appellate intervention is only warranted if the trial judge erred in the exercise of that discretion, applying the principles in House v The King (1936) 55 CLR 499.
  • Where a co-accused's out-of-court admissions do not mention or implicate the other accused, the risk of specific prejudice justifying a separate trial is substantially diminished.
  • The Court of Criminal Appeal distinguished Hamalainen v R [2019] NSWCCA 276 on its facts: that case required separate trials because the admissions of one co-accused directly implicated the other, whereas no such implication arose here.
  • Jury directions instructing the jury to disregard certain evidence when considering a particular accused remain a relevant factor in assessing whether a joint trial causes impermissible prejudice.
  • No error was established in the trial judge's refusal of the separate trial application, and the Court treated the availability of appropriate jury directions as adequate to address the applicant's concerns.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW)

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hamalainen v R [2019] NSWCCA 276
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- DR v R [2019] NSWCCA 320
- Hough v R [2019] NSWCCA 293
- R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248
- R v Middis (Supreme Court (NSW), 27 March 1991, unreported)
- R v Baartman (Court of Criminal Appeal (NSW), 6 October 1994, unreported)