McKellar v The Queen - [2014] NSWCCA 35

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McKellar v R [2014] NSWCCA 35
Hearing dates: 14 March 2014
Decision date: 14 March 2014
Before: Basten JA;
Button J;
RS Hulme AJ
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords: APPEAL - criminal - interlocutory appeal - joint trial - prejudice to applicant from inadmissible evidence tendered against co-accused - refusal by trial judge to order separate trial - trial judge held appropriate directions on evidence would suffice - whether there was a material error of fact in refusing a separate trial - errors alleged regarding the intended use of evidence by the Crown - Criminal Appeal Act 1912 (NSW), s 5F
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F
Cases Cited: DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568
House v The King [1936] HCA 40; 55 CLR 499
R v Basha (1989) 39 A Crim R 337
R v Pham [2004] NSWCCA 190
R v Webb and Hay (1992) 59 SASR 563
Symss v The Queen [2003] NSWCCA 77
Webb v The Queen; Hay v The Queen [1994] HCA 30; 181 CLR 41
Category: Interlocutory applications
Parties: Ethan Wayne McKellar (Applicant)
Regina (Respondent)
Representation:
Counsel:

Mr I H Wallach (Applicant)
Mr P Ingram SC (Respondent)
Solicitors:
Birchgrove Legal (Applicant)
Solicitors for Public Prosecutions (Respondent)

File Number(s): CCA 2011/144687
Decision under appeal

Jurisdiction:

9111

Date of Decision:

2014-03-10 00:00:00

Before:

R A Hulme J

File Number(s):

SC 2011/144687

Judgment

THE COURT: On Monday, 10 March 2014, a trial commenced in the Common Law Division in which there were four accused, one of whom was the applicant, Ethan Wayne McKellar. Before the jury was empanelled, the applicant sought a separate trial. That application was heard and determined by the trial judge, RA Hulme J.

The application was made by notice of motion filed on 7 March 2014. (Why the application had not been made at an earlier stage is not known, but the trial judge had received an explanation which he accepted.) The motion was supported by an affidavit filed by the applicant's solicitor, Mr Moustafa Kheir. The application was dealt with on the morning of 10 March (commencing at Tcpt, p 14(10)). The application was dismissed later that morning: Tcpt, p 23(1). The trial judge delivered reasons the following day (Tuesday, 11 March) and the jury was empanelled, the trial then proceeding, on Wednesday, 12 March 2014.

The present application for leave to appeal from the refusal of a separate trial was brought to this Court under s 5F of the Criminal Appeal Act 1912 (NSW). There is no dispute that an interlocutory appeal is available under that provision against a decision refusing to order a separate trial: DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568: [2] (Spigelman CJ); [77] (Allsop P); [125] (Simpson J). Nevertheless, the applicant requires leave: s 5F(3)(a). There is also no doubt that the decision of…

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 McKellar v The Queen

Details

AGLC: McKellar v The Queen [2014] NSWCCA 35
Case: [2014] NSWCCA 35
Decision Date: 14 March 2014

CaseChat Overview and Summary

In the case of McKellar v The Queen, the applicant sought an interlocutory appeal against a decision of the trial judge not to order a separate trial for him and his co-accused. The dispute arose from concerns that the applicant would be prejudiced by inadmissible evidence that was to be tendered against his co-accused. The application was heard by the Court of Criminal Appeal in New South Wales.

The central legal issue before the court was whether the trial judge had made a material error of fact in refusing to order a separate trial for the applicant. The court had to consider whether there was any error in the trial judge's assessment that appropriate directions to the jury regarding the use of the evidence would be sufficient to prevent any prejudice to the applicant. Additionally, the court needed to determine if there were any errors in the trial judge's findings regarding the intended use of the evidence by the Crown.

The court found that the trial judge had not made a material error of fact in refusing to order a separate trial. The court held that the trial judge had carefully considered the potential prejudice to the applicant and concluded that the appropriate directions to the jury would mitigate any risk. The court found no error in the trial judge's assessment of the intended use of the evidence by the Crown, and thus, the appeal was dismissed. The court emphasised the importance of ensuring that a fair trial is conducted, but also noted that the refusal to order a separate trial did not necessarily mean that the applicant's rights were infringed.

Orders