Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: DSJ v R; NS v R [2014] NSWCCA 77 Hearing dates: 3 September 2013 Decision date: 13 May 2014 Before: Gleeson JA at [1];
Hidden J at [212];
Rothman J at [213]Decision: 2010/34654 (DSJ v R)
Application for leave to appeal dismissed.
2010/40493 (NS v R)
Application for leave to appeal dismissed.
Catchwords: APPEAL- Appeal - General principles - Right of appeal -When appeal lies - From interlocutory decisions - Leave to appeal
CRIMINAL LAW - Appeal - Interlocutory orders - Section 5F(3) Criminal Appeal Act 1912 - Interlocutory order not to order separate trials - Application of Section 21 Criminal Procedure Act - Question of admissibility of evidence central to decision of primary judge - Admissibility of coincidence evidence - Section 98 and 101 Evidence Act 1995 - Whether leave ought to be grantedLegislation Cited: Constitution s 80
Corporations Act 2001, s1042A, 1043A
Criminal Appeal Act 1912, s5F
Criminal Procedure Act 1986, s21
Evidence Act 1995, s55, 97, 98, 101 and 137Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170
DAO v R [2011] NSWCCA 63; 81 NSWLR 568
De Jesus v R [1986] HCA 65; 68 ALR 1
DPP v Boardman [1975] AC 421
DPP v Kilbourne [1973] AC 729
DSJ v R; NS v R [2011] NSWCCA 222
DSJ v R; NS v R [2012] NSWSC 409
DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758
Hoch v The Queen (1998) 165 CLR 292
Holborn v Guardians of Union Chertsey (1884) 15 QBD 76
House v R [1936] HCA 40; 55 CLR 499
In re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318
Kocer v Regina [2006] NSWCCA 328
Ludlow v Metropolitan Police Commissioner [1971] AC 29
Maxwell v Keun [1928] 1 KB 645
Noor Mohamed v The King [1949] AC 182
Peterborough v Overseers of the Parish of Wilsthorpe (1883) 12 QBD 1
Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108
R v DSJ; R v NS [2011] NSWSC 894
R v DSJ; R v NS (No 3) [2013] NSWSC 471
R v DSJ; R v NS (No 4) [2013] NSWSC 472
R v DSJ; R v NS (No 5) [2013] NSWSC 473
R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31
R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
R v Frazer [2002] NSWCCA 59; 128 A Crim R 89
R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487
R v Georgiou [1999] NSWCCA 125
R v JGW [1999] NSWCCA 116
R v Lock (1997) 91 A Crim R 356
R v Lockyer (1996) 89 A Crim R 457
R v Powch (1988) 14 NSWLR 136
R v Smith [1981] 1 NSWLR 193
R v Steffan (1993) 30 NSWLR 633
R v Van Phu Ho (NSWCCA,…
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- AGLC
- DSJ v R; NS v R [2014] NSWCCA 77
- Case
- [2014] NSWCCA 77
- Decision Date
CaseChat Overview and Summary
The applicants, DSJ and NS, appealed against the trial judge's decision to deny separate trials and the admissibility of coincidence evidence in their criminal cases. The trial judge ruled that the evidence of coincidence had significant probative value and would not order separate trials. The applicants sought leave to appeal the trial judge's decision, but the appeal was only granted on a limited basis, specifically on the trial judge's interpretation and application of s 98 and s 101 of the Evidence Act 1995. The applicants argued that the trial judge erred in grouping cases where there was no evidence that DSJ had received inside information with cases where the Crown contended there was such evidence. The Court declined to grant leave to appeal on this issue, as well as on the issue of prejudice to the applicant and the trial judge's conclusion that any prejudice could be cured by directions.
The applicants' attempt to re-agitate the same arguments in respect of which the Court had previously refused leave to appeal was one of the relevant considerations raised by the present applications. The Court found that the trial judge's approach to the interpretation and application of s 98 and s 101 of the Evidence Act 1995 was not in error. The Court found that the trial judge's decision to not order separate trials was also not in error, as any prejudice could be cured by directions. The Court also found that the admissibility of coincidence evidence was properly considered by the trial judge.
In summary, the applicants sought leave to appeal against the trial judge's decision to deny separate trials and the admissibility of coincidence evidence in their criminal cases. The Court declined to grant leave to appeal on the issue of prejudice to the applicant and the trial judge's conclusion that any prejudice could be cured by directions. The Court found that the trial judge's approach to the interpretation and application of s 98 and s 101 of the Evidence Act 1995 was not in error, and the trial judge's decision to not order separate trials was also not in error. The Court found that the admissibility of coincidence evidence was properly considered by the trial judge.
The applicants' attempt to re-agitate the same arguments in respect of which the Court had previously refused leave to appeal was one of the relevant considerations raised by the present applications. The Court found that the trial judge's approach to the interpretation and application of s 98 and s 101 of the Evidence Act 1995 was not in error. The Court found that the trial judge's decision to not order separate trials was also not in error, as any prejudice could be cured by directions. The Court also found that the admissibility of coincidence evidence was properly considered by the trial judge.
In summary, the applicants sought leave to appeal against the trial judge's decision to deny separate trials and the admissibility of coincidence evidence in their criminal cases. The Court declined to grant leave to appeal on the issue of prejudice to the applicant and the trial judge's conclusion that any prejudice could be cured by directions. The Court found that the trial judge's approach to the interpretation and application of s 98 and s 101 of the Evidence Act 1995 was not in error, and the trial judge's decision to not order separate trials was also not in error. The Court found that the admissibility of coincidence evidence was properly considered by the trial judge.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The applicants sought and obtained leave to appeal on 9 September 2011 against the decision of Hall J. Leave was granted only on a limited basis - namely, on the trial judge's approach to the interpretation and application of s 98 and, to the extent that it flowed through, on his approach to the operation of s 101 of the Evidence Act: DSJ v R; NS v R [2011] NSWCCA 222 at [5] per Allsop P (Kirby and McCallum JJ agreeing) (Leave decision). Leave was not granted in respect of the other matters complained of in the proposed grounds of appeal, which included the way in which the trial judge would deal with the issue of prejudice if the trials were not severed and the so-called circularity of reasoning in the Coincidence Notice: at [6] Leave decision. The refusal of this Court to grant leave to appeal in respect of the other matters is of some significance for the present applications. First, the reference to the so-called circularity of reasoning in the Coincidence Notice, is a reference to ground 4 of DSJ's application for leave to appeal filed 23 August 2011 (WB 1023). NS adopted this ground in his application for leave to appeal filed 24 August 2011 (WB 1027). Ground 4 was in the following terms: The written submissions of DSJ in support of the leave application dated 6 September 2011, advanced the complaint that (a) Table A of the Coincidence Notice relied on each event to prove both the "act" and "state of mind" on each charge in relation to each other charge; and (b) the events on each charge are relied on to prove each other event in the same charge. It was argued by DSJ that this involved circular reasoning and to this extent the Coincidence Notice had no probative value at all, much less "significant" probative value (WB 1046-1047). This submission was expanded upon at some length in the written submissions of DSJ, and supplemented by DSJ's written submissions in reply on that leave application (WB 1082-1083), which included: The complaint made by DSJ was that, in Judgment No 1, the trial judge had accepted the grouping of essentially dissimilar cases, by allowing cases where there was no evidence that DSJ had received inside information to be grouped with cases in which the Crown contended there was such evidence. As already noted, this Court declined to grant leave in respect of this ground. Secondly, Ground 1 of DSJ's previous application asserted that the trial judge erred in declining to order separate trials. The written submissions of DSJ in support of this ground advanced arguments on the issue of prejudice to the applicant, separate to the arguments based on the admissibility of the coincidence evidence. This Court declined to grant leave to appeal in respect of that issue. Thirdly, Ground 5(b) of DSJ's previous application for leave asserted that the trial judge erred in concluding that any prejudice could be cured by directions. Again, this Court declined to grant leave to appeal on that issue. One of the relevant considerations raised by the present applications is the attempt by the applicants to re-agitate the same, or substantially similar, arguments in respect of which this Court has previously refused leave to appeal.
Ratio Decidendi
Legal Principle Established
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