McKellar v R [2014] NSWCCA 35

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McKellar v R [2014] NSWCCA 35 Hearing dates: 14 March 2014 Decision date: 14 March 2014 Before: Basten JA; Button J; RS Hulme AJ Decision: 1. Grant leave to appeal. 2. Dismiss the appeal. Catchwords: APPEAL - criminal - interlocutory appeal - joint trial - prejudice to applicant from inadmissible evidence tendered against co-accused - refusal by trial judge to order separate trial - trial judge held appropriate directions on evidence would suffice - whether there was a material error of fact in refusing a separate trial - errors alleged regarding the intended use of evidence by the Crown - Criminal Appeal Act 1912 (NSW), s 5F Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F Cases Cited: DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568 House v The King [1936] HCA 40; 55 CLR 499 R v Basha (1989) 39 A Crim R 337 R v Pham [2004] NSWCCA 190 R v Webb and Hay (1992) 59 SASR 563 Symss v The Queen [2003] NSWCCA 77 Webb v The Queen; Hay v The Queen [1994] HCA 30; 181 CLR 41 Category: Interlocutory applications Parties: Ethan Wayne McKellar (Applicant) Regina (Respondent) Representation: Counsel:

Mr I H Wallach (Applicant) Mr P Ingram SC (Respondent) Solicitors:

Birchgrove Legal (Applicant) Solicitors for Public Prosecutions (Respondent) File Number(s): CCA 2011/144687 Decision under appeal Jurisdiction: 9111 Date of Decision: 2014-03-10 00:00:00 Before: R A Hulme J File Number(s): SC 2011/144687