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Court of Criminal Appeal 21 May 2025

R v CS; R v CL

[2025] NSWCCA 72

Assault & violenceHomicideTheft & property
CRIME APPEALS CROWN INTERLOCUTORY APPEAL MURDER ROBBERY WITH WOUNDING 4 COUNTS ON INDICTMENT

Citation: R v CS; R v CL [2025] NSWCCA 72
Court: Court of Criminal Appeal
Date: 21 May 2025
Judge(s): Price AJA, Cavanagh J, Yehia J

Background

Two respondents (referred to by initials) were due to stand trial on four counts alleged to have been committed jointly over the course of a single night in January 2022. The counts comprised murder, armed robbery with wounding, aggravated break and enter, and attempted robbery in company. The alleged sequence of events ran from a residential break-in and car theft, through an attempted armed robbery at a service station, to a fatal attack on a man walking along a street.

Before trial, the respondents applied for a separate trial on the two later counts (aggravated break and enter and attempted robbery) from the murder and armed robbery counts. The primary judge (Sweeney J) accepted that evidence relating to those earlier counts was inadmissible in relation to the murder and armed robbery counts, and ordered a severance accordingly.

The Crown appealed under sections 5F(2) and 5F(3A) of the Criminal Appeal Act 1912 (NSW). It contended that all events formed part of a single transaction and that the excluded evidence was relevant to establishing a continuous state of mind, relying principally on the principle in O'Leary v The King (1946) 73 CLR 566.

  • Whether the evidence relating to counts 3 and 4 (and associated uncharged acts) was admissible in the trial of counts 1 and 2 on the basis that all events formed part of a single transaction under the O'Leary principle
  • Whether the excluded evidence was relevant to any fact in issue in respect of the murder and armed robbery counts
  • Whether the exclusion of that evidence eliminated or substantially weakened the Crown's case, so as to enliven the Court's jurisdiction under s 5F(3A) of the Criminal Appeal Act
  • Whether the primary judge's severance decision was unreasonable or unjust within the meaning of s 5F(2)

Decision

The Court dismissed the appeal by majority (Cavanagh J, with whom Yehia J agreed; Price AJA dissenting). The majority held that the O'Leary principle was misapplied by the Crown. That principle applies where events are so interconnected that isolating the charged conduct would render the alleged offence unreal or unintelligible. The majority found that the earlier offences, a car theft and a service station robbery attempt, did not satisfy that test in relation to the murder and armed robbery of the deceased.

The majority found that the evidence in respect of counts 3 and 4, and the associated uncharged acts, was not probative of any fact that remained genuinely in issue in the murder and armed robbery counts. The Crown had expressly disavowed reliance on the evidence as tendency evidence, and the majority held it could not be admitted on any other available basis. Evidence that carries no probative value on the facts in issue is, by definition, only prejudicial.

Because the excluded evidence was not probative of any fact in issue, its exclusion could not be said to substantially weaken the Crown's case. The majority held this meant the Court's jurisdiction under s 5F(3A) was not engaged. Even assuming jurisdiction was established, the primary judge's approach was correct. The severance decision was neither unreasonable nor unjust.

Price AJA dissented. His Honour considered that all events occurred in close temporal proximity and that the excluded evidence gave context and intelligibility to the respondents' conduct toward the deceased. Without it, the attack on the deceased would appear as an unexplained spontaneous event. Price AJA found the evidence had high probative value and that its probative value was not outweighed by the risk of unfair prejudice, meaning the primary judge had acted on the wrong principle and the severance should have been set aside.

Orders Made

• The appeal be dismissed

Key Takeaways

  • The O'Leary principle ("transaction evidence") requires that the earlier conduct be so integral to the charged offence that the charged offence cannot be truly understood without it. The Court of Criminal Appeal confirmed the principle does not extend to prior offences that merely precede, or provide general context for, the offending charged.

  • Where the Crown disavows reliance on evidence as tendency evidence, that evidence cannot be admitted through the O'Leary principle as a mechanism to achieve the same result by another route.

  • Under s 5F(3A) of the Criminal Appeal Act 1912, the Crown must establish that the ruling it challenges eliminates or substantially weakens its case before the Court of Criminal Appeal has jurisdiction to hear the appeal. Where excluded evidence bears no probative value on any fact remaining in issue, that jurisdictional threshold is not met.

  • A severance order will not be found unreasonable or unjust under s 5F(2) where the underlying admissibility ruling is correct and presenting the inadmissible evidence in the same trial would be unfair to the accused.

  • The correctness standard of appellate review (not the House v The King error standard) applies to rulings on admissibility challenged under s 5F(3A), consistent with Moore (a pseudonym) v The King [2024] HCA 30.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 38, 97, 98, 112
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 21, 29
- Evidence Act 1995 (NSW), ss 55, 137, 184

Cases
- O'Leary v The King (1946) 73 CLR 566; [1946] HCA 44
- Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510
- R v Lameri; R v Cohen [2004] NSWCCA 217
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Ratten v The Queen [1972] AC 378
- Martin v Osborne (1936) 55 CLR 367; [1936] HCA 23
- R v Chase [2018] NSWCCA 71
- R v Mostyn [2004] NSWCCA 97; (2004) 145 A Crim R 304
- Samadi and Djait v R [2008] NSWCCA 330; (2008) 192 A Crim R 251