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Supreme Court 4 October 2000

R v Ngo; Dao; Dinh

[2000] NSWSC 964

Homicide
CRIMINAL LAW & PROCEDURE THREE ACCUSED JOINT & SEPARATE TRIALS

Citation: R v Ngo; Dao; Dinh [2000] NSWSC 964
Court: Supreme Court of New South Wales, Common Law Division
Date: 4 October 2000
Judge(s): Dunford J

Background

Three accused were each charged with the murder of John Newman, the state member for Cabramatta, who was shot and killed on 5 September 1994. The Crown alleged that the first accused was the instigator and organiser of the killing, that the second accused drove the getaway vehicle, and that the third accused was the shooter. An accomplice, who had originally been charged alongside them, later pleaded guilty and agreed to give evidence for the Crown.

A prior order had directed that the first two accused be tried together but that the third accused face a separate trial. That joint trial commenced in February 2000 but ended in May when the jury failed to reach a verdict. A new joint trial for the first two accused was listed for 29 January 2001, with the third accused's separate trial set for the same date.

The Crown applied to have all three accused tried together. The third accused opposed the application, the first accused took a neutral position, and the second accused did not consent but made no submissions.

  • Whether the earlier order directing a separate trial for the third accused should be revoked
  • Whether a joint trial of all three accused would cause unfair prejudice or injustice to the third accused
  • Whether the risk that the accomplice witness might minimise his own role by implicating the third accused was a sufficient ground for a separate trial
  • Whether the significant delay already accumulated in the proceedings was a relevant consideration in determining the trial structure

Decision

Dunford J reviewed the Crown case in detail. The accomplice witness was the primary source of evidence against the third accused and had given an account placing the third accused in the getaway vehicle as the shooter. The judge found that the evidence against all three accused arose from a single joint enterprise and that the general rule favouring joint trials for co-accused charged with the same offence applied.

The third accused argued that a joint trial would expose him to prejudice because the substantial body of evidence going to the earlier planning and procurement of firearms involved only the first and second accused, not him. Dunford J rejected this argument, finding that where that earlier evidence was admissible against the third accused, it could properly be placed before the jury. To the extent any evidence was admissible only against the other accused, the judge considered a jury could be directed appropriately.

Dunford J acknowledged a genuine risk that the accomplice witness, himself present in the car on the night of the shooting, might seek to minimise his own involvement by exaggerating the role of the third accused. However, the judge was satisfied that this was a matter a jury could understand and weigh, particularly with proper directions, and that it did not justify a separate trial.

The court also noted, as a secondary consideration, that almost six years had passed since the killing and that maintaining separate trials would likely delay the third accused's trial by at least a further year. While this consideration alone would not override the interests of justice, Dunford J found it reinforced the conclusion that a joint trial was appropriate.

Orders Made

  • The order directing a separate trial for the third accused was revoked.
  • Leave was granted to the Crown, if it wished to do so, to present a joint indictment against all three accused.

Key Takeaways

  • The Supreme Court confirmed that the general rule is in favour of joint trials where co-accused are charged with the same offence arising from a common enterprise.
  • Grounds for displacing that general rule must be established by the party opposing the joint trial; the mere fact that much of the evidence relates more directly to some accused than others does not, of itself, satisfy that threshold.
  • Where an accomplice witness has a potential motive to shift blame onto a co-accused, that risk is relevant but does not automatically warrant a separate trial if it is a matter the jury can be directed to consider and assess.
  • Significant unexplained delay in bringing an accused to trial was treated as a relevant, though not determinative, factor in the structural organisation of proceedings.
  • Appropriate jury directions are the primary mechanism for managing the risk of prejudice in joint trials, rather than an automatic entitlement to severance.

Legislation and Cases Referenced

Cases Cited:
- R v Fernando [1999] NSWCCA 66
- R v Georgio [1999] NSWCCA 125
- R v Midis (CCA, 27 March 1991)
- R v Baartman (CCA, 6 October 1994)
- R v Masters (1992) 26 NSWLR 450
- R v Chai (1992) 27 NSWLR 153
- R v Louden (1995) 37 NSWLR 683
- R v Nguyen (CCA, 23 September 1998)
- R v Saunders (1994) 72 A Crim R 347

Legislation: No specific legislation cited in the judgment.