REGINA v YEO [2005] NSWCCA 49

New South Wales Court of Criminal Appeal

CITATION: REGINA v YEO [2005] NSWCCA 49

HEARING DATE(S): 7 July 2004

JUDGMENT DATE: 23 February 2005

JUDGMENT OF: Sheller JA at 1; Sperling J at 2; Adams J at 3

DECISION: Appeal against conviction dismissed; Leave to appeal against sentence granted; Appeal against sentence dismissed

CATCHWORDS: CONVICTION APPEAL - joint trials - whether separation wrongly refused - nature of prejudice - retrial following quashing on appeal - whether Crown significantly changed case - whether bound by way first trial conducted - whether abuse of process - conviction upheld - SENTENCE APPEAL - significance of bail conditions - whether double punishment - appeal dismissed

Criminal Appeal Act 1912 s6(1) LEGISLATION CITED: Evidence Act 1995 ss72, 137

R v Keyte (unreported, NSWCCA 26 March 1986) CASES CITED: R v Herbert (unreported, NSWCCA 4 November 1993) R v Fowler [2003] NSWCCA 321

Regina PARTIES: v Keng Hwee (Kathy) YEO (Appellant)

FILE NUMBER(S): CCA 60425/03

D Frearson (Crown) COUNSEL: P Byrne SC with G Bashir (Appellant)

S Kavanagh (Crown) SOLICITORS: C Bilinsky (Appellant)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70040/98

LOWER COURT JUDICIAL OFFICER: James J

IN THE COURT OF CRIMINAL APPEAL 60425/03

SHELLER JA SPERLING J ADAMS J

Wednesday 23 February 2005 REGINA v Keng Hwee (Kathy) YEO Judgment 1 SHELLER JA: I agree. 2 SPERLING J: I also agree. 3 ADAMS J: INTRODUCTION 4 On 15 May 2002 the appellant was convicted following trial before James J and a jury of the murder of Christopher Mark Dorrian on a date between 5 and 10 June 1997. She was jointly tried with a Mr Raymond Galea, who was charged with being an accessory after the fact to the same murder. The jury was unable to agree in respect of Galea and he was discharged. Both the appellant and Galea had been earlier tried for Dorrian's murder and, in the alternative, of being accessories after the fact. The appellant was convicted of murder but Galea was acquitted of murder and convicted, instead, of being an accessory after the fact. Both these convictions were quashed by this Court and new trials ordered. It followed, of course, that Galea could not be retried upon the murder charge of which he had been acquitted. The appellant did not give evidence at either trial. 5 The appellant submitted in this Court that, at the earlier trial, the Crown case was that one of the appellant and Galea shot Dorrian and the other was an accessory after the fact. This oversimplifies the position. The Crown case was, principally, that Dorrian was murdered in the execution of a joint enterprise of both accused but, in the alternative, the jury would conclude that one was the murderer and the other an accessory after the fact. 6 At the outset of the trial that is the subject of the present appeal each of the accused sought a separate trial. These applications were refused. A number of the grounds of appeal now brought complain, in different ways, that the failure to separate their trials, in the event, caused a miscarriage of justice. In the appellant's written submissions to this Court, she did not, contend that the evidence – including the impugned material – could not justify the verdict. Rather, it was argued that the trial miscarried because of the manner in which the Crown conducted it as compared to its conduct of the first trial. I return to this issue below. (There was some suggestion during argument that the appellant's contention that the verdict was unreasonable under s6(1) of the Criminal Appeal Act 1912 was not limited to what I might call the inconsistency of approach ground. However, it is clear that this was not the case.)