New South Wales Court of Criminal Appeal CITATION : Regina v Minh Than DO [1999] NSWCCA 328 FILE NUMBER(S) : CCA 60570/99 HEARING DATE(S) : 19 October 1999 JUDGMENT DATE : 19 October 1999 PARTIES : Regina Minh Than DO JUDGMENT OF : Sully J at 1; Hulme J at 11; Hidden J at 12 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70071/98 LOWER COURT JUDICIAL OFFICER : Barr J COUNSEL : R. D. Ellis - Crown L. Flannery - Respondent SOLICITORS : S. E. O'Connor - Crown T. A. Murphy - Respondent CATCHWORDS : ACTS CITED : Criminal Appeal Act DECISION : Appeal allowed - trial date vacated - proceedings to be listed for callover on 5.11.99 - if by that time co-offender extradited, proceedings involving him also to be listed at callover on 5.11.99 - at that callover dates for any desired 'Basha' type hearing to be fixed for earliest practicable date in the year 2000. IN THE COURT OF CRIMINAL APPEAL 60570/99 SULLY J HULME J HIDDEN J 19 October 1999 REGINA v Minh Than DO JUDGMENT 1 SULLY J: The Director of Public Prosecutions appeals pursuant to s 5F of the Criminal Appeal Act against a judgment of Barr J of this Court refusing an application to vacate a trial fixed to commence on Monday next. The trial is that of one Minh Than Do. Mr Do is to be indicted for murder, the relevant facts being, put simply, that he is alleged to have stabbed fatally a fellow prison inmate. Evidence has come lately to hand suggesting that it is now possible to identify a man named Kah as a co-offender in that fatal stabbing. It is sufficient to say of that new material that it is prison informer evidence. 2 Mr Kah is at present in New Zealand. He is, as it would seem, in lawful custody; and is to be the subject of an application made on Monday next to the appropriate Court in New Zealand for his extradition to New South Wales for prosecution in connection with his alleged involvement in the fatal stabbing. In the event that Mr Kah is extradited to New South Wales, - and the available evidence does not suggest any reason why that is not likely to happen, - then it is the intention of the Crown to present against him an ex officio indictment, so as to enable an expeditious joint trial of Mr Kah and Mr Do. 3 Barr J accepted, and in my respectful view correctly so, that, on the known facts, there ought to be a joint trial of Messrs Do and Kah, if a joint trial could be arranged with justice to all concerned. His Honour took the view, as I have understood his brief remarks when giving judgment, that the practical effect of vacating Mr Do's present fixture would be that Mr Do would have to wait, as his Honour put it, "for the extradition, the committal, and the management of the trial in this Court of the second accused. On present cases, the second accused could not get a fixture in this Court before the second half of 2000." 4 It is the case that Mr Do is at present in lawful custody serving a sentence of penal servitude, or of imprisonment, the terms of which require that he will be in full custody at least until 13 March 2001. The view of Barr J as to that aspect of the matter was expressed by his Honour in these terms: "I think he is entitled to have his trial. Indeed, he should have had it before now. The delay in bringing the trials on in this Court has been commented on adversely many times." 5 It is trite that Barr J, when he dealt with the application of which I have been speaking, was exercising a judicial discretion proper to him. It is trite that this Court will not lightly interfere with the exercise of such a discretion. I would wish for myself to say at once that I think it entirely understandable that his Honour hesitated to vacate the fixture for the trial of Mr Do. I think, however, that with all proper respect to his Honour, the exercise of his Honour's discretion did miscarry. 6 There is an abundance of authority to explain why the balance of justice normally entails that co-offenders should be presented for trial jointly. For a variety of reasons that cannot always be done. It remains, however, the stance of the Courts that it ought to be done whenever it is justly possible to do it. 7 In the present matter, the material to hand seems to me to establish convincingly that, at least prima facie, there ought to be a joint trial of Messrs. Do and Kah. If that proposition be correct, then the next relevant inquiry is whether there has been demonstrated some such potential injustice to Mr Do by the vacating of the fixture for his trial as would justify this Court in refusing to vacate that date so as to facilitate a joint trial. I am not persuaded that there is any such balance of injustice from the point of view of Mr Do. Mr Do, I say again, is in custody until 13 March 2001. On the most pessimistic view of the relevant procedures, it should be possible to bring Mr Kah and Mr Do to a joint trial, properly constituted and regularly conducted, well in advance of 13 March 2001. 8 So far as both proposed joint accused are concerned, it will be possible by such procedures as a "Basha" type inquiry to do all that justice requires in the matter of properly testing the evidence lately to hand, which evidence provides the substance of the argument in favour of the vacating of the trial date fixed for Mr Do and the holding in its place of a joint trial. 9 I think that justice would be done if the following orders were made: 1 That the appeal be allowed; 2. That the trial of the respondent now listed for hearing in the Supreme Court on 25 October be vacated; 3. That those proceedings be listed for call over in the Supreme Court on 5 November 1999; 4. That if by that time the proposed co-offender has been extradited, that the proceedings involving him also be listed at the call over on 5 November 1999; 5. That at the call over on 5 November 1999 dates for any desired "Basha" type hearing be fixed for the earliest practicable date in the new year 2000, it being noted that present estimates suggest three days as the time required for any such hearing or hearings; 6.That a trial date for the joint trial of Messrs Do and Kah be fixed in June, July, or August 2000. 10 I propose orders accordingly. 11 HULME J: I agree with the orders proposed and with the reasons of the presiding judge. I would add only this, we are, of course, interfering with a discretionary judgment on the part of Barr J. No express error of principle is, I think, to be found in his Honour's reasons, but his conclusion, in my view, demonstrates either or both of the propositions that his Honour gave inadequate weight in the interests of the Crown and the community in having a joint trial of persons accused of joint participation in an offence and gave undue weight to the interests of the present respondent in having his trial held in the immediate future. 12 HIDDEN J: I also agree with the orders proposed. 13 SULLY J: The orders will be as proposed. ********** 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.