R v DK [2008] NSWCCA 249

New South Wales Court of Criminal Appeal

CITATION: R v DK [2008] NSWCCA 249

HEARING DATE(S): 8 October 2008

JUDGMENT DATE: 8 October 2008

JUDGMENT OF: Hodgson JA at [1], [8]; Kirby J at [6]; Hislop J at [7]

EX TEMPORE JUDGMENT DATE: 8 October 2008

DECISION: Application for leave to appeal is refused.

CATCHWORDS: CRIMINAL LAW – Application for leave to appeal – Refusal by trial judge to sever one count from others in the indictment – Whether possible error shown.

LEGISLATION CITED: Criminal Code Act 1995 s 134.2.1; s 400.4.1

CATEGORY: Principal judgment

FILE NUMBER(S): CCA 2008/00006219

COUNSEL: W G ROSER SC (Applicant) S BUCHEN (Crown)

Barrak Lawyers (Applicant) SOLICITORS: Commonwealth Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0336

LOWER COURT JUDICIAL OFFICER: Toner DCJ

LOWER COURT DATE OF DECISION: 30 September 2008

IN THE COURT OF CRIMINAL APPEAL CCA 2008/00006219

HODGSON JA KIRBY J HISLOP J

WEDNESDAY 8 OCTOBER 2008 Regina v DK Judgment 1 HODGSON JA: This is an application for leave to appeal from a refusal by Toner DCJ to sever count three from an indictment under which the applicant is charged on three counts. The first two counts charge the applicant with the offences of obtaining a financial advantage by deception, contrary to s 134.2.1 of the Criminal Code Act 1995. The third count charges the applicant with dealing with the proceeds of crime where the amount exceeds $100,000, contrary to s 400.4.1 of the Criminal Code Act 1995. 2 The complaint of the applicant goes essentially to two matters. Firstly, whether the different counts can appropriately be included in the one indictment, on the basis that according to the applicant they cannot be said to arise out of the same set of circumstances. Secondly, it is said that evidence admissible in relation to count three might be improperly used by the jury in relation to counts one and two. There is a further complaint that the combination of these counts might unfairly deprive the applicant of lines of defence that he might otherwise follow. 3 In my opinion, on all of these matters there is no reasonable possibility shown of error in the decision of the primary judge. In the circumstances of the case as set out inter alia in the outline of submissions for the Crown, I see no reason for disagreeing with the primary judge's view that the alleged offences do arise out of the same set of circumstances. I think there is good reason for considering that evidence relevant to each of the three counts will be relevant and admissible in relation to other counts. If there is any particular evidence in relation to some of the counts that is not admissible in relation to other counts, then I do not think there is any reason to think that that cannot be dealt with by appropriate directions. 4 In the circumstances where the claim in relation to unfair deprivation of lines of defence is not supported by any evidence, I see no reason to disagree with the primary judge's view on that matter either. 5 For those reasons, in my opinion this is not a case in which leave to appeal should be granted, and I would refuse the application for leave to appeal. 6 KIRBY J: I agree. 7 HISLOP J: I also agree. 8 HODGSON JA: That will be the order of the court: the application for leave to appeal is refused. oOo