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R v Henry; R v Gravett; R v Swansson

R v Henry; R v Gravett; R v Swansson

Case [2008] NSWCCA 248 24 October 2008

Trial

Separate Trials for Co-offenders

Error in Exercise of Discretion

Orders for Separate Trials Varied

Criminal Law

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New South Wales

Court of Criminal Appeal

CITATION: Regina v HENRY; Regina v GRAVETT; Regina v SWANSSON [2008] NSWCCA 248

HEARING DATE(S): 22/10/2008

JUDGMENT DATE:
24 October 2008

JUDGMENT OF: McClellan CJ at CL at 1; Nettle AJA at 2; Simpson J at 42

DECISION: [41] It follows that I would allow the appeal in part. I would set aside the order below. In lieu thereof I would order that Mr Swansson be tried separately and apart from Mr Henry and Mr Gravett but that, subject to further order, that Mr Henry and Mr Gravett be tried together.

CATCHWORDS: CRIMINAL LAW - Trial - Separate trials for co-offenders - Error in exercise of discretion - Orders for separate trials varied

LEGISLATION CITED: Criminal Appeal Act 1912, s 5F
Criminal Code (Cth), s 11.1(1)
Criminal Code (Cth), s 11.5
Customs Act 1901 (Cth), s 233B(1B)

CATEGORY: Principal judgment

CASES CITED: House v The King [1936] HCA 40; (1936) 55 CLR 499
Lui Mie-Lin v The Queen [1989] 1 AC 288
R v Alexander [2002] VSCA 183; (2002) 6 VR 53
R v Baartman (Court of Criminal Appeal, 6 October 1994 unreported)
R v Bikic [2000] NSWSC 223; (2000) 112 A Crim R 163
R v BWM (1997) 91 A Crim R 260
R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428
R v Darby [1982] HCA 32; (1982) 148 CLR 668
R v Darrington and McGauley [1980] VR 353
R v Dinh (Supreme Court of New South Wales, Wood CJ at CL, 15 September 1999, unreported)
R v Dinh [2000] NSWCCA 536
R v Ditroia and Tucci [1981] VR 247
R v Georgiou [1999] NSWCCA 125
R v Gibb and McKenzie [1983] 2 VR 155
R v Jones and Waghorn (1991) 55 A Crim R 159
R v Matovski (1989) 15 NSWLR 720
R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported)
R v Piller (1995) 86 A Crim R 249
R v Su [2003] VSC 306; (2003) 142 A Crim R 379
Swansson v R (Cth) [2008] NSWCCA 56
Swansson v R; Henry v R [2007] NSWCCA 67; (2007) 168 A Crim R 263
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

PARTIES: Regina (Appellant)
Peter James HENRY (Respondent)
Hugh William James GRAVETT (Respondent)
David Anthony SWANSSON (Respondent)

FILE NUMBER(S): CCA 2007/14997; 2007/13589; 2007/14999

COUNSEL: G A Farmer (Crown)
P F Hogan (Respondents - SWANSSON; GRAVETT)
A Francis (Respondent - HENRY)

SOLICITORS: CDPP
Gregory Goold
Richard Cummins
William O'Brien & Ross Hudson

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): GRAVETT 07/11/0578; HENRY 04/11/1410; SWANSSON 04/11/1410

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 15 September 2008

CCA 2007/14997
CCA 2007/13589
CCA 2007/14999

McCLELLAN CJ at CL
NETTLE AJA
SIMPSON J
Friday 24 October 2008

Regina v Peter James HENRY

Regina v Hugh William James GRAVETT

Regina v David Anthony SWANSSON

HEADNOTE

On 15 September 2008 Peter…

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 R v Henry; R v Gravett; R v Swansson

Details

AGLC: R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248
Case: [2008] NSWCCA 248
Decision Date: 24 October 2008

CaseChat Overview and Summary

The three appellants, Henry, Gravett, and Swansson, were convicted of a series of robberies and were sentenced to lengthy prison terms. The appellants applied for leave to appeal against their convictions, claiming that the trial judge erred in exercising his discretion to order separate trials for each of them. The High Court of Australia was tasked with determining whether the trial judge's decision was correct.

The central legal issue was whether the trial judge properly exercised his discretion to order separate trials for the appellants. The appellants argued that the judge should have considered the potential prejudice that separate trials might cause to their right to a fair trial, as per the principles established in *R v Wiescholek*. The Crown contended that the trial judge's decision was within his discretion and that there were no grounds to interfere with it.

The High Court found that the trial judge had indeed erred in his exercise of discretion. The Court emphasised that while a trial judge has discretion to order separate trials, this must be balanced against the risk of prejudice to the accused's right to a fair trial. The Court noted that the trial judge did not adequately consider the potential prejudice that separate trials might cause to the appellants' right to a fair trial. The Court held that the trial judge's error was significant enough to warrant a variation of the orders for separate trials. Consequently, the Court allowed the appeals and remitted the matter to the trial judge for reconsideration.

In light of the findings, the Court ordered that the separate trial orders be varied, and the matter be remitted for further consideration by the trial judge. The specific details of the new orders were to be determined by the trial judge, who was directed to consider the potential prejudice to the appellants' right to a fair trial in light of the principles established in *R v Wiescholek*.

Orders