Hough v The Queen - [2019] NSWCCA 293

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hough v R [2019] NSWCCA 293
Hearing dates: 21 October 2019
Date of orders: 11 December 2019
Decision date: 11 December 2019
Before: Hoeben CJ at CL at [1]
Walton J at [2]
Price J at [43]
Decision:
Leave to appeal is refused.

Catchwords: CRIMINAL LAW – appeal against interlocutory judgment or order – applicant sought an order below for a separate trial pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW) – whether primary judge erred in dismissing an application for a separate trial from the co-accused – whether evidence is of a kind which is not amenable to judicial directions to the jury – whether the prejudice associated with the telephone intercepts cannot be cured by a direction to the jury –principle that jurors accept and obey the directions given to them by the trial judge – no error has been demonstrated in the judgment below – leave to appeal refused
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
R v Chami; R v Sheikh (2002) 128 A Crim R 428; [2002] NSWCCA 136
R v Middis (Unreported, Supreme Court of New South Wales, 27 March 1991)
Trotter v R [2016] NSWCCA 57
Webb & Hay v R (1994) 181 CLR 41; [1994] HCA 30
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
Category: Principal judgment
Parties: Dalton Hough (Applicant)
Regina (Respondent)
Representation:
Counsel:
H White (Applicant)
H Roberts (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/104463
Decision under appeal

Court or tribunal:

District Court, Gosford

Jurisdiction:

Criminal

Date of Decision:

22 May 2019

Before:

Wilson SC DCJ

File Number(s):

2018/104463

Judgment

HOEBEN CJ AT CL: I agree with Walton J and the orders which he proposes.
WALTON J: By an appeal brought pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), the applicant, Dalton Hough, seeks leave to appeal from the judgment and order of the primary judge of the trial on indictment for two related offences, Wilson SC DCJ, dismissing an application for a separate trial from the co-accused, Jake Michael Milojevic.

Background to the Appeal

The applicant was indicted at the Gosford District Court on 21 May 2019 before the primary judge. The indictment alleged that on 9 December 2017, the applicant and the co-accused committed offences of break and enter the dwelling house of Gary McKew and commit a serious indictable offence therein, namely, larceny in circumstances of aggravation knowing that a person or persons were in the place where the offence was committed, contrary to s 112(2) of the Crimes Act 1900 (NSW) and two counts of recklessly wound, contrary to s 35(4) of the Crimes Act.
By a notice of motion,…

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 Hough v The Queen

Details

AGLC: Hough v The Queen [2019] NSWCCA 293
Case: [2019] NSWCCA 293
Decision Date: 11 December 2019

CaseChat Overview and Summary

In the case of Hough v The Queen, the applicant, Hough, appealed against the interlocutory judgment or order made by the court below, which dismissed an application for a separate trial from his co-accused. The case involved criminal charges against Hough and others, and the evidence against Hough included telephone intercepts. The application for a separate trial was made under section 21(2) of the Criminal Procedure Act 1986 (NSW).

The legal issues that the court was required to decide were whether the primary judge had erred in dismissing the application for a separate trial and whether the evidence, particularly the telephone intercepts, was of a kind which was not amenable to judicial directions to the jury. The court also needed to determine whether the prejudice associated with the telephone intercepts could be cured by a direction to the jury and whether the principle that jurors accept and obey the directions given to them by the trial judge applied in this case.

The court found that no error had been demonstrated in the judgment below. The court held that the evidence was amenable to judicial directions to the jury, and the prejudice associated with the telephone intercepts could be cured by a direction to the jury. The court also found that the principle that jurors accept and obey the directions given to them by the trial judge applied in this case. As a result, the appeal was dismissed, and leave to appeal was refused.

The final orders of the court were that Hough's appeal against the interlocutory judgment or order made by the court below was dismissed, and leave to appeal was refused.

Orders