Hamalainen v R [2019] NSWCCA 276

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hamalainen v R [2019] NSWCCA 276 Hearing dates: 28 October 2019 Date of orders: 15 November 2019 Decision date: 15 November 2019 Before: Payne JA at [1]; Harrison J at [1]; N Adams J at [1] Decision: (1) Leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) be granted; (2) Appeal allowed; (3) Set aside Order 1 made by Wright J on 27 August 2019 dismissing the application for a trial separate from the trial of the co-accused, Robert McCloskey; (4) In lieu thereof order that the applicant be tried separately from his co-accused, Robert McCloskey. Catchwords: CRIME – appeals – appeal by accused against interlocutory order dismissing his application for a trial separate from his co-accused – where admissions made by his co-accused to an informer witness ruled inadmissible against the accused – where the nature of those admissions inadmissible against the accused supports the evidence of admissions made by the accused to other informer witnesses and are consistent with the Crown case – whether unacceptable risk those admissions inadmissible against the accused will be used by the jury to assess the reliability of the informer witnesses' evidence – real prospect of positive injustice to the accused – prejudice cannot be adequately addressed by jury directions – separate trial ordered Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F Criminal Procedure Act 1986 (NSW), ss 29, 142 Cases Cited: DAO v R [2011] NSWCCA 63 DSJ v R; NS v R [2014] NSWCCA 77 House v The King (1936) 55 CLR 499; [1936] HCA 40 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 R v McCloskey; R v Hamalainen [2019] NSWSC 1175 R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep) R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965 R v Pham [2004] NSWCCA 190 Trotter v R [2016] NSWCCA 57 Webb v The Queen; Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30 Category: Principal judgment Parties: Sami Esko Hamalainen (Applicant) Regina (Respondent) Representation: Counsel: G Brady SC (Applicant) H Roberts (Respondent)