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Hamalainen v R

Hamalainen v R

Case [2019] NSWCCA 276 15 November 2019

Appeal

Admissibility of Evidence

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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)
Solicitors:
AXL Legal (Applicant)
Solicitor for Prosecutions (NSW) (Respondent)

File Number(s): 2017/00356657
Publication restriction: See non-publication and suppression orders made by Wright J on 26 August 2019.
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Crime

Citation:

[2019] NSWSC 1176

Date of Decision:

27 August 2019

Before:

Wright J

File Number(s):

2017/00356657

Judgment

THE COURT: The applicant, Sami Hamalainen, seeks leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) from an interlocutory order made by Wright J on 27 August 2019, dismissing his application for a trial separate from that of his co-accused, Robert McCloskey (“RM”).
The applicant has pleaded not guilty to an indictment containing one count of murdering John Salafia on 23 June 2013. RM is the co-accused on that indictment. The applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hamalainen v R

Details

AGLC: Hamalainen v R [2019] NSWCCA 276
Case: [2019] NSWCCA 276
Decision Date: 15 November 2019

CaseChat Overview and Summary

In the matter of Hamalainen v R, the appellant, Hamalainen, appealed against an interlocutory order dismissing his application for a trial separate from his co-accused. The case involved admissions made by his co-accused to an informer witness, which were ruled inadmissible against the accused. The nature of those admissions supported the evidence of admissions made by the accused to other informer witnesses and were consistent with the Crown case. The appeal focused on whether there was an unacceptable risk that the inadmissible admissions would be used by the jury to assess the reliability of the informer witnesses' evidence, which would cause a real prospect of positive injustice to the accused. It was also argued that the prejudice could not be adequately addressed by jury directions.

The legal issues before the court were whether the inadmissible admissions would cause a real prospect of positive injustice to the accused and whether the prejudice could be adequately addressed by jury directions. The court considered the potential impact of the inadmissible admissions on the accused's right to a fair trial and whether a separate trial was necessary to ensure a fair trial. The court also considered whether the prejudice could be adequately addressed by jury directions or whether a separate trial was necessary to avoid the risk of prejudice.

The court held that there was a real prospect of positive injustice to the accused if the inadmissible admissions were used by the jury to assess the reliability of the informer witnesses' evidence. The court found that the prejudice could not be adequately addressed by jury directions, as the risk of prejudice was too great. The court also considered the potential impact on the accused's right to a fair trial and the need to avoid any risk of prejudice. The court concluded that a separate trial was necessary to ensure a fair trial for the accused and ordered a separate trial.

The court ordered a separate trial for the accused to ensure a fair trial and to avoid any risk of prejudice caused by the inadmissible admissions. The court held that the real prospect of positive injustice to the accused and the inability to adequately address the prejudice by jury directions justified the separate trial. The court emphasised the importance of ensuring a fair trial for the accused and the need to avoid any risk of prejudice.

Orders