Kautoga v The Queen - [2017] NSWCCA 107

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kautoga v R [2017] NSWCCA 107
Hearing dates: 8 May 2017
Date of orders: 24 May 2017
Decision date: 24 May 2017
Before: Beazley ACJ [1];
Adamson J [2];
Wilson J [35]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against interlocutory judgment – refusal by trial judge to sever indictment – use of coincidence and tendency evidence – whether risk of prejudice to applicant arising from evidence inadmissible for one purpose but admissible for another can be ameliorated by jury directions – where trial judge finds it is in interests of justice for counts on indictment to be tried together – whether trial judge made an error in exercise of discretion – HELD –appeal dismissed – no error in decision to refuse application for separate trials and for severance of indictment
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
Criminal Procedure Act 1986 (NSW), ss 21, 21(2), 29, 29(1)(c), 29(3)
Evidence Act 1995 (NSW), ss 97, 98, 101, 101(2), 137
Cases Cited: DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
House v The King (1936) 55 CLR 499
R v Gale; R v Duckworth (2012) 217 A Crim R 487; [2012] NSWCCA 174
Category: Principal judgment
Parties: Ratu Pio Kautoga (Applicant)
Regina (Respondent)
Representation:
Counsel:
G James QC (Applicant)
T Smith (Crown)
Solicitors:
Lenz Legal (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/195264
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

8 March 2017, 13 March 2017

Before:

Woodburne SC DCJ

File Number(s):

2014/195264

Judgment

BEAZLEY ACJ: I have had the advantage of reading in draft the reasons of Adamson J. I agree with her Honour’s reasons and proposed orders.
ADAMSON J: The applicant seeks leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) against an order made by Woodburne SC DCJ refusing his application, by notice of motion, that the five counts in the indictment (with the exception of counts 2 and 3) be tried separately.

Relevant legislative provisions

As the motion turned, at least in part, on the application of various provisions, it is convenient to set them out.

Criminal Procedure Act 1986 (NSW)

Section 29 relevantly provides:

“29 When more than one offence may be heard at the same time
(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:
. . .
(b) the offences arise out of the same set of circumstances,
(c) the offences form or are part of a series of offences of the same or a similar character.

. . .
(3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion…

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.

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Details

Case: [2017] NSWCCA 107
Decision Date: 24 May 2017

CaseChat Overview and Summary

The case of Kautoga v The Queen involved the appellant, Kautoga, who appealed against an interlocutory judgment made by the trial judge in the Supreme Court of New South Wales. The trial judge had refused to sever the indictment which contained multiple charges against the appellant, all of which were to be tried together. The nature of the dispute was whether the risk of prejudice arising from the use of coincidence and tendency evidence could be sufficiently mitigated by jury directions, and whether the trial judge had erred in his discretion to try the counts together in the interests of justice.

The legal issues before the court included whether the risk of prejudice to the appellant from evidence that was inadmissible for one purpose but admissible for another could be adequately addressed by the trial judge through jury directions. Another issue was whether the trial judge had exercised his discretion to try the counts together appropriately, given the potential for prejudice. The court needed to determine if the trial judge had erred in his assessment of the interests of justice in deciding to try the counts together.

The court found that the trial judge had not made an error in his exercise of discretion. The judge had considered the potential for prejudice and had determined that it could be sufficiently managed through the use of jury directions. The court held that the risk of prejudice did not necessitate a severance of the indictment or separate trials. The judge had appropriately balanced the interests of justice, considering the efficiency of the trial process and the potential for prejudice. Therefore, the appeal was dismissed as there was no error in the trial judge's decision to refuse the application for separate trials and the severance of the indictment.

Orders