Citation: Singh v R; Dhillon v R [2023] NSWCCA 237
Court: NSW Court of Criminal Appeal
Date: 27 September 2023
Judges: Mitchelmore JA, Dhanji J (with reasons), Sweeney J
Background
Two of five co-accused, facing trial in the District Court for an alleged home invasion, applied for their trials to be heard separately from the other three co-accused. All five were jointly charged with one count of aggravated break, enter and commit a serious indictable offence (intimidation), and two counts of common assault, arising from an incident on 16 May 2021 at a residential property in Sydney.
The alleged home invasion involved a group entering the premises with baseball bats and metal rods and threatening two complainants, who were due to give evidence as witnesses in separate Local Court proceedings involving the three other co-accused. The three co-accused were known to the complainants before the attack. The two applicants, by contrast, were not named by the complainants until the day after the offence, when photographs sent via Facebook prompted identification by one complainant.
The primary judge, Bourke SC DCJ, refused the separation applications on 14 April 2023. The applicants sought leave to appeal that interlocutory decision, with the notices of appeal filed some weeks outside the 14-day limit due to a delay in obtaining counsel's advice.
Legal Issues
- Whether leave to appeal out of time should be granted under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW)
- Whether the primary judge erred in refusing to order separate trials under s 21 of the Criminal Procedure Act 1986 (NSW)
- Whether there was a real risk that inadmissible and prejudicial evidence led against the three co-accused would positively injure the applicants at a joint trial
- Whether the identification evidence against the applicants was sufficiently weak, compared to the case against co-accused, to warrant separate trials
Decision
The Court of Criminal Appeal granted leave to appeal, treating the merits as relevant to the extension of time question, but unanimously dismissed the appeal.
Dhanji J, with whom Mitchelmore JA and Sweeney J agreed, applied the established principles from R v Mitchison; R v Wells; R v Whelan [2016] NSWSC 463 and DAO v R (2011) 81 NSWLR 568. The key inquiry was whether the applicants had demonstrated a real risk of positive injustice from a joint trial. Central to that inquiry was whether prejudicial and inadmissible evidence against the co-accused would be led at a joint trial in a way that could convert a likely acquittal into a conviction.
The applicants' identification evidence was acknowledged as weak. The Crown case against them rested on a post-event Facebook photograph identification by one complainant, facilitated by their cousin, who knew of the applicants before the process began. There were real questions about the reliability of that identification. However, the Court found that the applicants had not established that any evidence led at a joint trial would be inadmissible against them. In particular, the Crown's evidence of association between the applicants and the three co-accused on 16 and 17 May 2021 drew its probative value from proof of the co-accused's commission of the offence. That evidence was unlikely to be inadmissible as against the applicants.
Because the threshold requirement of inadmissible and prejudicial evidence was not met, the application for a separate trial failed. The primary judge was found to have made no error. Dhanji J noted, however, that if trial proceeds on the identification evidence and limited association evidence, careful jury directions will be needed regarding the sole issue of identification, the inherent weakness of the identification evidence, and the limited relevance of much of the other evidence to the applicants specifically.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- An application for a separate trial requires the applicant to demonstrate a real risk of positive injustice at a joint trial, not merely that the Crown case against them is weaker than the case against co-accused.
- The Court of Criminal Appeal confirmed that the critical threshold is whether inadmissible and prejudicial evidence will be led against co-accused at the joint trial. Without establishing that, the application fails regardless of weaknesses in the identification evidence.
- Where circumstantial association evidence against an applicant derives its probative value from proof of a co-accused's commission of the offence, that evidence is not readily classified as inadmissible against the applicant.
- Acknowledging the weakness of identification evidence is not sufficient on its own to ground a separate trial order. The applicants' weak case and the strength of the Crown's case against the co-accused were not, standing alone, enough to compel separate proceedings.
- In dismissing the appeal, the Court flagged that careful jury directions at trial will be necessary given the narrow Crown case against the applicants, the inherent frailties in the identification evidence, and the limited relevance to the applicants of much of the evidence that will be led in the joint trial.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61, 112(2)
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
- Criminal Procedure Act 1986 (NSW), s 21
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(4)
Cases:
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- R v Mitchison; R v Wells; R v Whelan [2016] NSWSC 463
- Trotter v R [2016] NSWCCA 57
- Webb & Hay (1994) 181 CLR 41
- R v Pham [2004] NSWCCA 190
- Ross v R [2012] NSWCCA 207
- R v Patsalis & Spathis (No 1) (1999) 107 A Crim R 432
- R v Bikic (2000) 112 A Crim R 300
- Madubuko v R [2011] NSWCCA 135