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Court of Criminal Appeal 25 September 2001

R. v. JACKSON [2001] NSWCCA 387 revised - 5

[2001] NSWCCA 387

Public order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE SEPARATE TRIALS COURT'S DISCRETION T ORDER WHETHER DISCRETION MISCARRIED

Citation: R v Jackson [2001] NSWCCA 387
Court: NSW Court of Criminal Appeal
Date: 25 September 2001
Judge(s): Powell JA, Sully J, Bell J

Background

The respondent, Jackson, faced an indictment containing charges relating to alleged offences against multiple complainants. He applied by Notice of Motion seeking to have the indictment severed so that each complainant's charges would be tried separately. The Crown, having already narrowed its position, sought a joint trial on charges involving three complainants, identified as B, H, and E.

The District Court judge, Puckeridge DCJ, granted the severance application and ordered separate trials. He accepted that the evidence from all three complainants demonstrated striking similarity and acknowledged that evidence would have significant probative value, but concluded that a joint trial would deny the accused a fair trial.

The Crown appealed under s 5F of the Criminal Appeal Act 1912, arguing that the District Court judge's exercise of discretion had miscarried.

  • Whether Puckeridge DCJ erred in ordering separate trials by failing to apply the correct statutory test under the Evidence Act 1995.
  • Whether the trial judge properly balanced the probative value of the tendency or coincidence evidence against its potential prejudicial effect before making the severance order.
  • Whether the discretion to order separate trials had miscarried so as to warrant the Court of Criminal Appeal setting aside the order.

Decision

The Court of Criminal Appeal found that Puckeridge DCJ made a legal error in the manner in which he approached the severance application. Although his Honour acknowledged the striking similarity between the complainants' accounts and the significant probative value of that evidence, he did not go on to perform the balancing exercise required by s 101(2) of the Evidence Act 1995.

Section 101(2) provides that tendency or coincidence evidence adduced by the prosecution cannot be used against a defendant unless the probative value of the evidence substantially outweighs any prejudicial effect on the defendant. Powell JA held that because the trial judge did not apply this test, his conclusion was flawed and the discretion had miscarried.

The Court allowed the Crown appeal and set aside the severance order. The matter was remitted to the District Court to be determined according to law. The Court also accepted that, on remittal, the accused would remain free to make a fresh application for separate trials in relation to any charges ultimately preferred against him.

Orders Made

  • Appeal allowed.
  • Order of Puckeridge DCJ set aside.
  • Matter remitted to the District Court to be determined in accordance with law.

Key Takeaways

  • Before ordering separate trials where the prosecution relies on tendency or coincidence evidence, a court must apply the balancing test in s 101(2) of the Evidence Act 1995, asking whether the probative value of the evidence substantially outweighs its prejudicial effect on the defendant.
  • Acknowledging that evidence has significant probative value and striking similarity is not sufficient on its own. A failure to then weigh that probative value against prejudicial effect constitutes a legal error that can vitiate the exercise of discretion.
  • The Court of Criminal Appeal confirmed that where a discretion to order separate trials has miscarried due to a failure to apply the correct statutory test, the Crown may successfully appeal under s 5F of the Criminal Appeal Act 1912.
  • Remitting a matter for reconsideration does not extinguish a defendant's procedural rights. The Court expressly preserved the accused's ability to bring a fresh severance application on remittal.
  • Under s 97 and s 98 of the Evidence Act 1995, read together with s 101, the threshold for admitting tendency and coincidence evidence in Crown prosecutions is governed by a statutory framework that must be methodically applied, not merely acknowledged.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 97, 98, 101(2)

Cases:
- R v Verma (1987) 30 A Crim R 441