Regina v CE [2005] NSWCCA 326

New South Wales Court of Criminal Appeal

CITATION: Regina v CE [2005] NSWCCA 326

HEARING DATE(S): 8 September

JUDGMENT DATE: 15 September 2005

JUDGMENT OF: Grove J at 1; Hall J at 20; Smart AJ at 21

DECISION: LEAVE TO APPEAL GRANTED; ORDERS: See par 19

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - INTERLOCUTORY ORDER REFUSING SEPARATE TRIALS - PARTICULAR PREJUDICE TO ONE OF THREE ACCUSED - NOT REASONABLY CAPABLE OF AVOIDANCE BY JUDICIAL DIRECTION - NECESSARY ORDER TO AVOID UNFAIR TRIAL

LEGISLATION CITED: s 5F Criminal Appeal Act 1912

R v Middis, unreported NSWSC 27 March 1991 R v Oliver 1987 57 ALR 543 CASES CITED: R v Patsalis & anor 1999 107 A Crim R 432;[2001] NSWCCA 476 Webb v The Queen 1994 181 CLR 41

PARTIES: Regina v CE

FILE NUMBER(S): CCA 2005/1674

G.I.O. Rowling (Crown) COUNSEL: G. Nicholson QC (Applicant)

S. Kavanagh (DPP) SOLICITORS: William S. Whitby (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0577

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

- 5 - IN THE COURT OF CRIMINAL APPEAL 2005/1674

GROVE J HALL J SMART AJ

15 September 2005 REGINA v C.E. Judgment

1 GROVE J: This is an application for leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 seeking to challenge the order of Shadbolt DCJ refusing the applicant a trial separately from two co-accused BT and CP. It is not disputed that such is of interlocutory nature within the scope of s 5F. As trial is imminent, the accused are referred to by initial to avoid any possible complaint of prejudice from publicity, if such were to occur. 2 On 1 September instant the applicant and co-accused had presented against them an indictment charging the applicant on counts of assault occasioning actual bodily harm, jointly with BT of having sexual intercourse without consent and at the time inflicting actual bodily harm on the victim, and two further similar counts charging such offence jointly with CP. 3 On presentation of the indictment the applicant sought separate trial from the co-accused. The Crown case asserts that all of the events giving rise to the charges occurred on 30 July 2004 in a flat in suburban Sydney. 4 It is well established that principle and policy both indicate that persons charged with committing an offence jointly ought be tried together, even where accused persons seek to cast the blame upon each other: Webb & anor v The Queen 1994 181 CLR 41. That rule is subject to a proviso that, if a joint trial would cause positive injustice to an accused then a separate trial should be ordered. R v Oliver 1987 57 ALR 543; R v Patsalis & anor 1999 107 A Crim R 432 (Kirby J) and [2001] NSWCCA 476. 5 It is inevitable that an application must be considered prospectively. In R v Middis NSWSC, unreported 27 March 1991, Hunt J observed: "I do not believe that the Court of Criminal Appeal in Oliver intended an applicant for a separate trial to demonstrate that positive injustice would more likely than not be caused by a joint trial (as it was suggested in argument); nor do I accept that a mere possibility of prejudice is sufficient (as it was also suggested in argument). In my view, what the Court of Criminal Appeal was saying was that as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would – if it arises – result in positive injustice to him in a joint trial". 6 This application was supported by an affidavit of the applicant's solicitor, the content of which was not challenged. In summary, the legal representatives of the co-accused BT have stated an intention of raising a "defence of duress", that is, an assertion that BT acted in fear of the applicant who, it will be alleged, threatened him with a knife with the result that BT believed he would be stabbed by him if he did not do his bidding. In support of this "defence" the solicitor was informed that BT would give evidence that he has known the applicant for some time, knows him to be a violent man who stands over people and who has served a gaol sentence for menacing people. Further, he will say that the applicant is a member of a motorbike gang and has on occasion exhibited a collection of guns including handguns. 7 The applicant has a criminal record, which is consistent with some of the above assertions. It is also intended to reveal this and, if the applicant elects to testify on his own behalf, to cross examine him on the detail of the record. 8 For the purpose of this application the Court was supplied with a copy of the statement of the complainant. Paragraphs 18 and 19 thereof describe the alleged specific conduct of BT, which it is not necessary to recite. Whilst what the complainant states does not support an assertion of duress exercised by the applicant on BT, it can be remarked that the detail does not inherently contradict such a claim. 9 It was acknowledged by the Crown Prosecutor that, if BT either adduces evidence himself or points to evidence which is sufficient to justify leaving the issue to the jury, it will become incumbent upon the prosecution to negative the "defence" beyond reasonable doubt. 10 The learned judge at first instance referred to the ingredients which are generally required to sustain the "defence" but did not appear then to turn to weigh whether the foreshadowed exploration of particular facts asserted about him would cause positive injustice to the applicant in the conduct of his case. As was candidly stated by the Crown Prosecutor it is no part of the prosecution case to seek to adduce the highly prejudicial evidence and the potential for its being adduced emerges directly from the circumstance that BT and the applicant are being tried together. 11 His Honour adverted to the increase of the possibility of inconsistent verdicts which has been recognized in the case of separate trials, but, whilst this must be accepted as a generality, it would not be a matter of inconsistency if, say, one perpetrator was found responsible for his acts and another not responsible because his will had been overborne by duress. 12 His Honour stated that it was the normal rule that those accused of joint criminal enterprise should be tried together. This is indisputably correct, but although he recognized that the applicant might suffer "difficulties" which he considered could be "ameliorated by appropriate direction", he did not elaborate what he identified as specific difficulties or how such could be "ameliorated". 13 Kirby J commented in Patsalis: "A further way in which there may be a risk of injustice ….. is in circumstances where one accused has a prior criminal history, and the other does not. The accused with the history may, in a joint trial, feel some inhibition in giving evidence. That may work an injustice." 14 CP has no prior convictions and it has been indicated that he would be seeking a "good character" direction which, of course, would not be available to the applicant. The contrast would be discernible to the jury. 15 This is not an uncommon feature of joint trials and I would not, for this reason, regard separate trials as appropriate. It is a situation capable of being well accommodated by directions of a trial judge. It is, however, an accumulating matter to be taken into account in the present case when assessing the potential impact of the "difficulties" which the applicant can be predicted to encounter in a joint trial with CP and BT. 16 Having regard to the matters above indicated, I consider that the applicant has succeeded in demonstrating that he would suffer positive injustice if tried with BT and that his Honour's discretion has miscarried. 17 It is important to recognize that an order for separate trials necessarily involves, to say the least, inconvenience, but more particularly the undoubted burden upon the complainant of being required to testify on more than one occasion, a situation which should be avoided if possible. The need for that avoidance, however, must be balanced against avoidance of conducting a trial which is conducted in a manner which is predictably likely to carry a potential appellate consequence that multiple trials, therefore separated by significant lapse of time, may eventuate. If it be the case that the complainant will be required to testify more than once, it is perceptibly more desirable that this be done promptly so that, from her point of view, proceedings are brought to finality. 18 An order was sought that the trial of the applicant proceed before those of BT and CP. In my view that is a matter for the District Court (and the prosecution) and this Court should not make any order in that regard. 19 I propose the following orders: