Citation: Regina v Chami; Regina v TS [2002] NSWCCA 136; (2002) 128 A Crim R 428
Court: NSW Court of Criminal Appeal
Date: 12 April 2002
Judge(s): Ipp AJA, Sully J, Bell J
Background
Five accused persons faced a joint indictment containing 19 counts arising from a series of separate but consecutive incidents involving serious sexual offences against a complainant. Two of those accused, Chami and TS, each applied to the trial judge (Finnane DCJ in the District Court) for a separate trial. Both applications were refused.
TS was named in only two of the 19 counts, both arising from the first incident at a car park in Bankstown. He had no alleged involvement in any of the remaining 17 counts. Chami was charged in connection with a later incident at an industrial area in Chullora and similarly had no involvement in most of the other counts on the indictment.
Both accused sought leave to appeal the interlocutory refusal of their applications to the Court of Criminal Appeal. The trial was due to commence three days after the appeal was heard.
Legal Issues
- Whether the trial judge erred in refusing to order a separate trial for TS
- Whether the trial judge erred in refusing to order a separate trial for Chami
- What principles govern applications for separate trials of co-accused, and in particular what "positive injustice" means in that context
- Whether appellate intervention in an interlocutory refusal of a separate trial is warranted
Decision
The Court confirmed the governing principles by reference to Hunt J's formulation in R v Middis, as endorsed in R v Baartman. A separate trial will generally be ordered where the evidence against the applicant is significantly weaker and different from that admissible against co-accused, where highly prejudicial material admissible against co-accused is not admissible against the applicant, and where there is a real risk the weaker Crown case will appear immeasurably stronger by reason of that prejudice. The applicant must demonstrate that positive injustice would result from a joint trial.
On TS's application, Ipp AJA (with Bell J agreeing) found the trial judge had erred by failing to consider the merits of a separate trial for TS alone, having instead framed the issue as whether TS and a co-accused Skaff should be separated from the remaining accused as a group. The Court exercised its discretion afresh. Given that TS faced only two of 19 counts, the trial was expected to last 12 weeks involving approximately 70 witnesses, evidence of repeated and serious sexual offences would be led in which TS had no involvement, and the common ethnicity of all alleged offenders risked generating generalised hostility that judicial directions alone could not adequately address, the majority held a separate trial was warranted. Leave to appeal was granted and the appeal upheld.
On Chami's application, the majority declined to interfere. The basis for Chami's application was less compelling, and no error of principle was identified in the trial judge's refusal. Sully J reached the same outcome for Chami but dissented on TS's application, taking the view that the applicant had not demonstrated with sufficient precision the conjunction of factual circumstances required to establish positive injustice, noting the unknowns around what witnesses would ultimately say at trial. Sully J emphasised that an accused is entitled to a fair trial according to law, not an ideal trial in the abstract.
Orders Made
- Re Chami: Application for leave to appeal dismissed
- Re TS (by majority): Leave to appeal granted; appeal upheld; the two counts against TS severed from the indictment; separate trial ordered for TS in respect of those charges
Key Takeaways
- The established test for ordering separate trials requires an applicant to show that positive injustice would result from a joint trial, not merely inconvenience or theoretical prejudice.
- Where a trial judge frames a severance application on an incorrect basis (here, considering only whether two co-accused should be separated as a pair rather than whether one accused should be tried alone), the Court of Criminal Appeal will exercise the discretion afresh.
- Appellate courts will not readily intervene in interlocutory refusals of separate trial applications, but will do so where an error of principle is demonstrated that is apt to cause irregularity or injustice.
- Factors weighing in favour of severance include: an applicant facing a small fraction of counts on a large indictment, a significant volume of highly prejudicial evidence inadmissible against that applicant, a lengthy trial involving many witnesses, and a risk that generalised hostility arising from co-accused conduct may infect the jury's assessment of the weaker case.
- Sully J's dissent on the TS application illustrates that the threshold remains genuinely contested: in his Honour's view, positive injustice must be demonstrated through specific and concrete factual material, not inferred from general features of the trial.
Legislation and Cases Referenced
Cases:
- R v Baartman (unreported, NSWCCA, 6 October 1994)
- R v Middis (unreported, NSWSC, 27 March 1991)
- R v Patsalis [1999] NSWSC 649
- R v Van Phu Ho (unreported, NSWCA, 18 July 1994)
- R v Oliver (1984) 57 ALR 543
- R v Dellapatrona & Duffield (1993) 31 NSWLR 123
- R v Fernando [1999] NSWCCA 66
- Gilbert v The Queen (2000) 170 ALR 88
Legislation: No specific legislation was cited in the judgment.