R. v. JACKSON [2001] NSWCCA 387

New South Wales Court of Criminal Appeal

CITATION : R. v. JACKSON [2001] NSWCCA 387 revised - 5/12/2001 FILE NUMBER(S) : CCA 60590/2001 HEARING DATE(S) : 25/09/2001 JUDGMENT DATE : 25 September 2001

PARTIES : Regina (Appellant) Lloyd Jackson (Respondent) JUDGMENT OF : Powell JA at 1, 14; Sully J at 12; Bell J at 13

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC01/21/0202 LOWER COURT JUDICIAL Puckeridge DCJ OFFICER :

COUNSEL : P.G. Berman SC (Appellant) G.D. Wendler (Respondent) SOLICITORS : S.E. O'Connor (Appellant) Van Houten (Respondent) CATCHWORDS : CRIMINAL LAW - Practice and procedure - Separate trials - Court's discretion t order - Whether discretion miscarried DECISION : Appeal allowed

IN THE COURT OF CRIMINAL APPEAL

60590/2001 POWELL JA SULLY JA BELL JA 25 September 2001

REGINA v. LLOYD JACKSON

Judgment

1 POWELL JA; This is an appeal by the Crown pursuant to the provisions of s 5F of the Criminal Appeal Act 1912 against a judgment delivered, and an order made, by Puckeridge D.C.J. on 24 August 2001. 2 The application which led his Honour to deliver that judgment, and to make that order, was an application made by Notice of Motion filed on behalf of the accused Jackson, seeking an order that an indictment which was then either prepared or in draft form be severed and that trials proceed separately in respect of counts alleging offences against each of five named persons. 3 In the event, on the application before Puckeridge DCJ, the Crown did not press for a joint hearing of all counts or proposed counts in respect of those five named persons, but indicated that it wished to proceed with a joint indictment relating to the offences affecting three only of those persons who might be identified as B, H and E. 4 It has been said (R v. Verma (1987) 30 A Crim R 441, 443) that "the most straightforward case in which separate trials will not be ordered is where the evidence admissible on the trial of one charge is in any event admissible on the trial of the other, by way (for example) of similar facts." 5 The basis upon which Puckeridge DCJ ordered that there be separate trials is set out in his judgment as follows: "I have considered the submissions of the Crown and also considered the statements of the three complainants which were handed up. I consider that the prejudice to the accused if the trial was to proceed on the basis of one indictment for all three complaints (sic) would be very high. Accepting that the evidence from all three complainants alleged acts which have striking similarity, and that such evidence would have significant probative value. I consider that if a trial was to proceed on the basis of the one indictment as proposed, the accused would be denied the opportunity of a fair trial.