New South Wales Court of Criminal Appeal CITATION : Regina v Folli [2000] NSWCCA 460 FILE NUMBER(S) : CCA 060493/00 HEARING DATE(S) : 30 October 2000 JUDGMENT DATE : 30 October 2000 PARTIES : Regina v Michael Anthony Folli JUDGMENT OF : Giles JA at 1; Wood CJ at CL at 12; James J at 13 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 99/21/2160 LOWER COURT JUDICIAL Sorby DCJ OFFICER : COUNSEL : G J Cusack QC - Applicant P G Berman SC - Crown SOLICITORS : Beston Macken McMannis - Applicant S E O'Connor - Crown CATCHWORDS : INTERLOCUTORY APPEAL - offences alleged involving two complainants - application for separate trials as to each complainant - refused - admissibility of evidence of one complainant as to the offences involving the other - possibility of collusion - no error of principle or unreasonableness in judge's decision. R v Matovski (1989) 15 NSWLR 720; CASES CITED: R v Rogerson (1990) 45 A Crim R 253; R v Ho (CCA, 2 July 1994), referred to. DECISION : Application for leave to appeal dismissed. THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CA 060493/00 DC 99/21/2160 GILES JA WOOD CJ at CL BM JAMES J Monday 30 October 2000 REGINA v MICHAEL FOLLI JUDGMENT 1 GILES JA: This is an application for leave to appeal against an interlocutory judgment of Sorby DCJ. 2 The applicant is charged on fourteen counts of indecent assault and sexual intercourse without consent involving males, ten of the incidents involving a complainant whom I will call CD and four involving a complainant whom I will call RD. Some of the counts are in the alternative to others of them. Sorby DCJ refused applications for the trial of the counts relating to CD separately from the counts relating to RD and for separate trials on each individual count. Although the application to this Court was expressed to be in regard to both of those applications only the former, that is, the question of separate trials in relation to each complainant, has been pressed. 3 RD and CD are brothers, born in 1967 and 1969 respectively. The charges are of incidents on or between dates spanning a period 1 January 1979 to 31 December 1983. It was submitted to Sorby DCJ that the jury might wrongly use the evidence with respect to one of the complainants as evidence with respect to the other complainant, and that there was a possibility that the complainants had acted or would act in collusion with each other and had or would concoct a story. 4 However, his Honour considered it significant that a number of the incidents involving one complainant occurred in the presence of the other so that, at least in part, evidence of one complainant would be admissible and relevant to the charges with respect to the other complainant as evidence of the fact of what was done. His Honour noted two instances from a statement of RD and three instances from a statement of CD. It has been put to us that a closer examination of the instances suggests that they are limited to two only of the whole collection of counts, but nonetheless the point remains that there is likely to be some evidence from one complainant admissible and relevant to the charges with respect to the other as evidence of fact. 5 His Honour also noted the applicant's answers to two questions in his police interview admitting some conduct as regards CD and the anger of RD relating to that conduct, and noted also that collusion or concoction had not been put to either complainant by counsel for the applicant during a s 48E hearing. It is plain that his Honour considered collusion or concoction had not been shown to be a real possibility and that the likely admissibility of at least some of the evidence of one complainant in relation to the charges against the other made a separation of trials inappropriate. 6 It should be emphasised that the present application is an application for leave to appeal against an interlocutory judgment. Section 5F of the Criminal Appeal Act 1912 provides for appeal as of right by the Attorney General or Director of Public Prosecutions and appeal only with leave or upon a certificate of the trial judge in any other case. There was no certificate in the present case. In Regina v Matovski (1989) 15 NSWLR 720 it was said that in relation to s 5F a clear procedural distinction should be drawn between applications for leave to appeal and appeals as of right, and the restraint in granting leave to appeal illustrated in that case has later been endorsed in Regina v Rogerson (1990) 45 A Crim R 253 and Regina v Ho (CCA, 18 July 1994, unreported). 7 In the present application it was submitted that having a joint trial would bring a situation in which it would not be realistically possible for the trial judge to sum-up so as to avoid prejudice and to ensure that the jury took into account only that which it should take into account as regards the conduct towards each complainant and the conduct in each count. It was said that separate trials would not inhibit one of the complainants being called to give evidence as to the fact in the trial of the charges with respect to the other complainant, but that no matter how hard the trial judge tried he could not appropriately sum-up so as to cure prejudice likely to come from a joint trial. In relation to collusion and concoction it was fairly accepted that there was no direct case of collusion or concoction likely to be brought, but some matters were referred to as possible grounds for putting collusion and concoction at the trial so that was by no means ruled out. 8 This relevantly repeated, although in the case of possible prejudice in a slightly modified form, what had been put to Sorby DCJ. It was said that there would be a challenge to the police interview, not on the basis that what the record of interview recorded was not said but on the basis that what was said related to a different time period from the period of the incidents alleged against the applicant. That, it seems to me, only adds point, as does what was said about possibility of raising collusion and concoction, to the course taken by Sorby DCJ, which was in substance to leave joint trials as something which could be repented of if necessary in the future but to conclude that there were presently insufficient grounds for separation. 9 Careful directions to the jury will no doubt be necessary, but I see no error of principle or manifest unreasonableness in the conclusion of Sorby DCJ that the prospect of the trial miscarrying or of unfairness to the applicant was insufficient to warrant separate trials. The possibility of concoction is now material to the balance between the probative value of the evidence and any prejudicial effect it may have on the accused, in a situation such as the present when considering the admissibility of tendency evidence under ss 97 and 101 of the Evidence Act 1995 or when making discretionary and other evaluations under ss 135 and 137 of that Act. These matters may well arise at the trial, although just how and in what form they will arise, in particular given the record of interview, it is not easy to forecast. If, at the trial, questions of the admission of tendency evidence or situations of discretion arise, the trial judge can rule on them in the context of the trial as a whole, and when the evidentiary basis for a ruling in the light of the other evidence as it has emerged permits a more informed ruling than at present. 10 If at the trial concoction is alleged, for example, as to the amplitude of the complainants' evidence against the applicant, the trial judge may need to consider the further course of the trial, but a decision can then be made upon a more full understanding of the position rather than by what is really speculation at the present time. The applicant's rights will remain should there be an error. Of course, the prospect of error and a new trial and the prospect of a trial being aborted are not welcome. Nonetheless, if one asks whether Sorby DCJ departed from principle or misdirected himself so as to warrant an interference with his interlocutory judgment, in my opinion the answer must be no. 11 I therefore propose that the application for leave to appeal be dismissed. 12 WOOD CJ at CL: I agree. 13 BM JAMES J: I would also agree. 14 GILES JA: That will be the order. ____________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.