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 Judgment 1THE COURT: On Monday, 10 March 2014, a trial commenced in the Common Law Division in which there were four accused, one of whom was the applicant, Ethan Wayne McKellar. Before the jury was empanelled, the applicant sought a separate trial. That application was heard and determined by the trial judge, RA Hulme J. 2The application was made by notice of motion filed on 7 March 2014. (Why the application had not been made at an earlier stage is not known, but the trial judge had received an explanation which he accepted.) The motion was supported by an affidavit filed by the applicant's solicitor, Mr Moustafa Kheir. The application was dealt with on the morning of 10 March (commencing at Tcpt, p 14(10)). The application was dismissed later that morning: Tcpt, p 23(1). The trial judge delivered reasons the following day (Tuesday, 11 March) and the jury was empanelled, the trial then proceeding, on Wednesday, 12 March 2014. 3The present application for leave to appeal from the refusal of a separate trial was brought to this Court under s 5F of the Criminal Appeal Act 1912 (NSW). There is no dispute that an interlocutory appeal is available under that provision against a decision refusing to order a separate trial: DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568: [2] (Spigelman CJ); [77] (Allsop P); [125] (Simpson J). Nevertheless, the applicant requires leave: s 5F(3)(a). There is also no doubt that the decision of the trial judge was one involving a matter of discretion, at an interlocutory stage; it was accepted that it invited the principles of restraint applicable to appellate intervention in such matters, as identified in House v The King [1936] HCA 40; 55 CLR 499. 4The relevant principles to be applied to the question of separating trials were not in dispute. The circumstance that persons jointly charged with the commission of an offence may each seek to blame the other, to some degree, is by no means novel. It gives rise to conflicting considerations, the proper balancing of which is to be determined on a case by case basis. In Webb v The Queen; Hay v The Queen [1994] HCA 30; 181 CLR 41 (perhaps better known as a case involving apprehended bias arising from the conduct of a juror in presenting a bunch of flowers to the deceased's fiancé to be given to the deceased's mother) was such a case. Toohey J (with whom Mason CJ and McHugh J agreed), adopted principles set out by King CJ in the South Australian Court of Criminal Appeal in the same matter, R v Webb and Hay (1992) 59 SASR 563 at 585. King CJ had noted the "strong reasons of principle and policy by which persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other." However, as Toohey J noted at 89: "There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused." 5Sometimes the question will arise retrospectively, following a conviction, in which case for an offender to succeed it will be necessary for the appellate court to be satisfied that there was some element of unfairness which caused the trial to miscarry. In other cases, including the present case, the issue arises prior to trial, when one accused seeks a separate trial. In the latter case, the judge will be required to determine, usually on the basis of quite limited evidence, the likelihood that a joint trial can proceed without necessary unfairness or, on the contrary, whether it will run an unacceptable risk of prejudice to the applicant. 6The trial judge set out the principles by reference to an extensive extract from the judgment of Sheller JA (James J and Smart AJ agreeing) in Symss v The Queen [2003] NSWCCA 77 at [68]-[76]. The final paragraph - [76] - was in the following terms: "For present purposes I regard it as sufficient to emphasise the factors identified by King CJ in Collie and Webb and Hay and adopted by Toohey J in Webb and Hay in the High Court. There are important reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together, particularly where each seeks to cast the blame on the other. The dangers from the admission of evidence which would not have been admitted if the appellant had stood trial alone can be obviated by express and careful directions as were given in this trial." 7The trial judge continued at [18]: "I accept that there is an inherent risk of unfair prejudice if the jury were to take into account in their determination of the case concerning Ethan McKellar what the accused Douglas and Elwood told the police. But I consider that this is a risk that can be avoided by appropriate directions." (a) first alleged error 8The first alleged mistake arose from a statement by the trial judge as to how the prosecution intended to deal with statements made by the co-accused Dennis and Elwood. The surrounding circumstances, as set out in the statements of the two co-accused, was that the applicant, his brother (Bevan McKellar) and Elwood and Dennis had gone to the home of the victims together. At the end of their respective interviews, each identified the applicant as the person who had stabbed the deceased. That evidence was inadmissible against the applicant. 9The trial judge summed up his understanding of the prosecution case in the following terms at [8]: "The Crown case, in a nutshell, is that the four accused were parties to a joint criminal enterprise to attend the home of John Gjedsted, a person known to be a small-time supplier of cannabis, in order to rob him. As I understand it, the Crown will contend that the accused must have anticipated that they would be met with some resistance. After they had arrived, one of them knocked on the door and Mr Gjedsted opened it. He was immediately attacked. Jacob Gjedsted, his son, emerged from his bedroom and saw what was occurring. Events moved out to the front of the home. They involved both father and son being assaulted and stabbed, fatally so in the case of John Gjedsted." 10The prosecution case also involved evidence suggesting that the applicant's brother, Bevan McKellar, stabbed the deceased. However, as the trial judge further noted, the prosecution case "appears to be one of a joint assault by four men upon the deceased (and his son) in circumstances where the Crown will argue that they are each criminally liable in respect of the death of the deceased (and the wounding of his son). In those circumstances, it will be unnecessary for the Crown to establish beyond reasonable doubt who it was who was responsible for the stabbings": at [13]. The trial judge then turned to the question of prejudice based upon the anticipated evidence before the jury from the two co-accused identifying the applicant as the person who stabbed the deceased. 11The trial judge sought to contrast the situation before him with that discussed in R v Pham [2004] NSWCCA 190, an appeal following conviction for an execution-style murder, the appellant having been tried with two co-offenders, one of whom was his brother. The brother had made a statement to the police which implicated the appellant. The brother's confession was before the jury as part of the evidence against the brother, but was not admissible against the appellant. The person who carried out the shooting (one Tran) gave evidence against the appellant, as did another person (Lam) who was present in the vehicle which carried the victim to the place of execution, but was not present when he was shot. The prosecution case relied heavily upon the evidence of Tran and Lam, as against the appellant. However the confession by the appellant's brother did much to support the evidence of Tran and Lam which, particularly in the case of Tran, might have been rejected as unreliable. The jury was entitled to rely on the evidence of Tran and Lam in assessing the credibility of the brother's confession, and also as corroborating aspects of the case against the brother: at [33]. On the other hand, in considering the case against the appellant, the jury was directed to ignore, not only what his brother had said with respect to his role, but also the extent to which the brother's evidence might support the credibility of Tran and Lam. This Court held that, despite emphatic and precise directions as to how to approach the exercise, "it would have been virtually impossible, as a matter of common sense, for the jury to disregard [the brother's] interview in dealing with the case against the appellant": at [34]. 12The trial judge distinguished Pham, noting that in the case before him, "the Crown will be inviting the jury to reject to the relevant aspect of the claims by Messrs Dennis and Elwood as self-serving and unreliable": at [20]. 13The applicant contended that this overstated the position taken by the prosecution with respect to the statements of Dennis and Elwood. In discussing the role which the statements of Dennis and Elwood would play in the prosecution case, the prosecutor, noting various inconsistencies in their accounts had explained, at Tcpt, 10/03/14, p 19(22): "A reasonable inquiry might be if the Crown is not going to rely on some sort of inculpatory material, why leave them in the interviews? The answer to that question is simply because the representatives for Mr Elwood and Mr Dennis would expect those observations left as simply providing some explanation for why they behaved in a way, feared in a way, once they saw things happen. So, that is certainly why the prospect of deleting them entirely hasn't been taken any further, as far as the Crown is concerned. I do emphasise that the Crown is not relying on these witnesses clearly because it is inadmissible. Also, it is not altogether clear that Ethan McKellar was the stabber, in any case, as I have already explained. ... So, for all those reasons, one can see that the Crown case is certainly not reliant on the help of these two with their untested allegations of Ethan McKellar being responsible. So, for those reasons, and perhaps especially more so because your Honour can see that this is precisely the sort of joint enterprise where it is really necessary for the jury to hear all of the versions together, where anything is certainly far from being clear-cut in order to best make sense of what happened in this relatively complicated situation." 14Relying upon these statements, and particularly the penultimate paragraph that the prosecution "is certainly not reliant on" the statements of Dennis and Elwood, the applicant submitted that there was no basis for the trial judge's conclusion that the prosecution would be inviting the jury "to reject" the allegations implicating the applicant as the person who stabbed the deceased. 15This criticism must be accepted. At no point did the prosecution indicate it would invite rejection of those statements; rather, it eschewed reliance upon them. It explained the inclusion of the statements, implicitly indicating that it would not object to their exclusion if others, particularly counsel for the co-accused Dennis and Elwood, agreed. Thus, the trial judge overstated the position taken by the prosecution. 16The question is whether that overstatement is significant in the context of the application. Two points may be made in that regard. First, the purpose of the comment was to distinguish the case from the factual circumstances of Pham. There could be no criticism of the conclusion: the circumstances were indeed materially different. The overstatement of the difference did not derogate from the correctness of the conclusion. 17Secondly, the trial judge made the comparison because, as he noted at [19], he had been referred to Pham as supporting the application for a separate trial. The comparison with other factual circumstances is usually of limited assistance, as it was in this instance. The overstatement of the prosecution's position, taken in isolation, did not undermine the reasoning to any significant degree. (b) second alleged error 18The applicant then sought to make good a similar complaint with respect to the prosecution's position in relation to evidence to be given by Mr Jacob Gjedsted, the son of the deceased, who was also assaulted and stabbed in the attack, but survived. At [10], the trial judge stated: "Police spoke to Jacob Gjedsted on a number of occasions. I was provided with his statements and transcripts of interviews.... In the last of those documents he suggested that it was Ethan McKellar who did the stabbing. However, there is considerable inconsistency and doubt about this in his other accounts. It is little wonder that the Crown does not intend to submit to the jury that they should accept Mr Gjedsted's final assertion on the subject as being irrefutably correct." 19After noting the statements implicating the appellant in the claims of Messrs Dennis and Elwood, the trial judge returned to consider Mr Gjedsted's evidence in that context. He said at [21]: "... I have considered whether there is a risk that the jury may impermissibly reason that the claims of the two co-accused to the police that Ethan McKellar was the stabber may bolster evidence that Jacob Gjedsted may give to that effect. Upon reflection I do not believe that this raises a concern of any real significance; particularly with the Crown not advocating that the jury would accept Mr Gjedsted's claim as being irrefutably correct and arguing against the reliability of the co-accused's versions. Again, directions to the jury should suffice to overcome any concern that may be perceived after all of the evidence is in." 20The allegation of factual error in these passages was somewhat obscure. The trial judge had two applications before him: in addition to the application for a separate trial, he was asked to allow the cross-examination of Mr Jacob Gjedsted on a voir dire, before the jury was empanelled, in accordance with the procedure contemplated in R v Basha (1989) 39 A Crim R 337 at 341-342, in circumstances where either there had been no committal hearing or the impugned witness had not been called at the committal. (In the present case, there had been a committal hearing and Mr Gjedsted had been called, though not cross-examined.) That application was rejected. 21In the course of considering that application, the trial judge asked the prosecutor how he was going to open to the jury with respect to Mr Gjedsted's evidence concerning the role played by the applicant. The prosecutor indicated that he intended in "fairly neutral" terms to outline the various versions of events given by Mr Gjedsted: Tcpt, p 10(35)-(48). The trial judge then expressly asked whether it was the prosecution case that the applicant was the person who stabbed the deceased. The response was as follows (Tcpt, p 11(4)): "CROWN PROSECUTOR: The Crown case is that it is likely that Ethan McKellar was the stabber. Ethan McKellar and the remaining three, I will explain to the jury, were involved in a joint criminal enterprise which had a number of complexions, but, in effect, one of them was the stabber. On the evidence, it was most likely Ethan, but there is also some suggestion that it might have been Bevan who was the stabber .... HIS HONOUR: So, the Crown is not dependent upon affirmatively establishing the identity of the stabber? CROWN PROSECUTOR: No, no. ..." 22To describe the prosecution case, in negative terms, as not relying upon Mr Gjedsted's identification of the applicant as the stabber as "irrefutably correct" may have involved an element of rhetorical flourish, but it demonstrated no error. To the extent that it accepted (if only by implication) that more reliance might be placed on the evidence of Mr Gjedsted in this regard than appeared likely from the prosecutor's statements, it did not demonstrate a view which was adverse to the applicant's case for a separate trial. (c) third alleged error 23Finally, factual error was sought to be identified in the proposition set out above from [10], that it was only in "the last" of the statements given by Mr Gjedsted to the police that he suggested that it was the applicant who did the stabbing. The submission stated that the prosecution "may" argue that Mr Gjedsted had told a uniformed police officer that it may have been the applicant, that is, on an earlier occasion than his last statement. 24The error was identified by reference to a passage in the transcript in which counsel for the applicant explained to the trial judge the content of Mr Gjedsted's last statement (of 25 May 2011). It is convenient to go to the original. The opening paragraphs of the statement set out the background in which the witness had come to know the applicant. He then explained how he had identified the applicant on the night of the attack, even though he had not seen his face, other than his nose. The statement continued: "12. This person who looked like Ethan is the one who had the knife that night. This person is the one who stabbed me, and also the one who stabbed my Dad. I didn't see anyone else with a knife that night. 13. After the attack and we were back in the house, my friend ... said to me "Do you know who did it?" I said, "I think Ethan MCKELLAR". 14. Later a uniformed Police Officer said to me "Did any of them look familiar" or something like that. I said, "Yeah, I thought I saw Ethan MCKELLAR". 25The applicant relied upon the contents of paragraph 14 of the statement as indicating at least a possibility that Mr Gjedsted had identified Ethan McKellar as the person who stabbed him and his father in a conversation with a uniformed police officer on an earlier occasion. The statement contains no such express suggestion. Nor is it apparent why it should be read as stating more than it did. Accordingly, there was no mistake in the way the trial judge described the "last" statement as the first in which Mr Gjedsted had identified the applicant as the stabber. On the evidence available to him, that attribution was clearly correct. Conclusion 26There being no suggestion that the trial judge misapprehended the relevant principles to apply in determining whether to order separate trials, the applicant's case depended upon either a material error of fact or some unexplained error which could be inferred from the refusal of the application. The one matter which might properly be described as a factual error was not shown to be material to the outcome. The refusal of the application in the circumstances available to the trial judge at the time the application was made was unremarkable. It certainly demonstrated no latent error. 27There is a further reason to reject the application. The assessment made at the beginning of the trial will be open to reassessment as the trial proceeds. Decisions will be made as to the admissibility of evidence, the content of final addresses and the way in which the judge leaves the case to the jury. If developments demonstrate that the initial assessment was based on an erroneous expectation of the trial process, the applicant will be able to raise a fresh objection. If convicted he may have a ground of appeal based on what will by then be known events, rather than predictions. This Court will not readily intervene to stop the trial going ahead, unless a clear case of unremediable prejudice is made out. No such threshold has been reached. 28For these reasons, the Court, while granting leave to appeal, dismissed the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2014