Citation: Regina v Nedjelko BIKIC [2000] NSWCCA 106; (2000) 112 A Crim R 300
Court: NSW Court of Criminal Appeal
Date: 30 March 2000
Judge(s): Stein JA, Sully J, Kirby J
Background
Seven persons were to stand trial jointly before Hidden J on an indictment charging them with the murder of two named victims. One of the seven, the respondent, successfully applied to Hidden J for a separate trial on the basis that he wished to run an alibi defence supported by evidence from certain co-accused.
Those co-accused were willing to give evidence for the respondent only in a separate trial, where they could do so without placing themselves in jeopardy. In support of the application, the respondent's counsel presented statements from four co-accused in sealed envelopes, proposing that the trial judge examine the contents without giving the Crown full access to them. Hidden J declined to open the envelopes on those terms but nonetheless accepted counsel's assurance from the bar table that the statements would support the alibi, and granted the separate trial order.
The Director of Public Prosecutions appealed under section 5F of the Criminal Appeal Act 1912 (NSW), seeking to have the separate trial order vacated before the joint trial commenced the following Monday.
Legal Issues
- Whether Hidden J erred in the exercise of his discretion to grant the respondent a separate trial
- Whether the material placed before Hidden J constituted evidence properly admitted and accepted, capable of justifying a departure from the ordinary rule that alleged joint offenders be tried together
- Whether a respondent to a separate trial application can effectively dictate conditions on which supporting material is tendered, so as to shield it from proper scrutiny by the Crown
Decision
The Court of Criminal Appeal held that the sole question on appeal was whether Hidden J had fallen into error in his approach to the separate trial application. The applicable principles were those stated in House v The King (1936) 55 CLR 499: an appellate court will not lightly disturb a discretionary decision, but must intervene where error is demonstrated.
Sully J, with whom Stein JA and Kirby J agreed, identified the central flaw as evidentiary. To justify departing from the well-established rule favouring joint trials of alleged joint offenders, the respondent bore an onus to place credible, properly admitted evidence before the court. The sealed statements from the co-accused were never tendered or admitted in evidence. Hidden J acted only on an assurance from the bar table as to their contents.
The Court found that the respondent could not discharge his onus by presenting sealed documents on terms designed to prevent the Crown from properly testing their contents, either on the interlocutory application or at any subsequent trial. Allowing such an approach would, in the Court's view, improperly curtail the legitimate public interest in the detection and prosecution of crime.
Sully J also noted the respondent's alibi notice under section 405A of the Crimes Act 1900 (NSW) was given very late, postdating Hidden J's refusal of an earlier separate trial application that had failed for want of any particulars at all. The Court observed that Hidden J himself had recognised reasonable grounds for suspicion about the purpose of the application, but found that this suspicion alone would not have been sufficient to refuse the order had there been proper evidence supporting it. The deficiency was not the suspicion but the absence of admissible evidence.
Orders Made
- The appeal was allowed.
- The order of Hidden J for a separate trial was vacated.
Key Takeaways
- A defendant applying for a separate trial bears an onus to adduce credible evidence, properly admitted and accepted, that is capable of justifying a departure from the ordinary rule of joint trial for alleged joint offenders.
- An assurance from the bar table as to the contents of documents that were never formally tendered does not constitute evidence sufficient to discharge that onus.
- Where a respondent proposes to tender material only on conditions that restrict the Crown's ability to examine or use it, the court is not obliged to accept those terms. Allowing such conditions would improperly limit the Crown's ability to test the evidence on both the interlocutory application and at any subsequent trial.
- The Court of Criminal Appeal confirmed that the principles in House v The King govern Crown appeals against discretionary interlocutory orders, but that demonstrated error in the evidentiary foundation of such an order warrants appellate intervention.
- Under section 405A of the Crimes Act 1900 (NSW), alibi notice requirements are strictly governed, and a late or incomplete notice is a relevant surrounding circumstance in assessing a separate trial application, even if not itself determinative.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1900 (NSW), s 405A
Cases
- House v The King (1936) 55 CLR 499
- Regina v Fernando & Anor [1999] NSWCCA 66