R. v Jackson

[2001] NSWCCA 387

CITATION:	R. v. JACKSON [2001] NSWCCA 387 revised - 5/12/2001
FILE NUMBER(S):	CCA 60590/2001
HEARING DATE(S):	25/09/2001
JUDGMENT DATE:	25 September 2001
PARTIES :	Regina (Appellant) Lloyd Jackson (Respondent)
JUDGMENT OF:	Powell JA at 1, 14; Sully J at 12; Bell J at 13

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC01/21/0202
LOWER COURT JUDICIAL OFFICER :	Puckeridge DCJ

COUNSEL :	P.G. Berman SC (Appellant) G.D. Wendler (Respondent)
SOLICITORS:	S.E. O'Connor (Appellant) Van Houten (Respondent)
CATCHWORDS:	CRIMINAL LAW - Practice and procedure - Separate trials - Court's discretion t order - Whether discretion miscarried
DECISION:	Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60590/2001

POWELL JA

SULLY JA

BELL JA

25 September 2001

REGINA v. LLOYD JACKSON

Judgment

1 POWELL JA; This is an appeal by the Crown pursuant to the provisions of s 5F of the Criminal Appeal Act 1912 against a judgment delivered, and an order made, by Puckeridge D.C.J. on 24 August 2001.

2 The application which led his Honour to deliver that judgment, and to make that order, was an application made by Notice of Motion filed on behalf of the accused Jackson, seeking an order that an indictment which was then either prepared or in draft form be severed and that trials proceed separately in respect of counts alleging offences against each of five named persons.

3 In the event, on the application before Puckeridge DCJ, the Crown did not press for a joint hearing of all counts or proposed counts in respect of those five named persons, but indicated that it wished to proceed with a joint indictment relating to the offences affecting three only of those persons who might be identified as B, H and E.

4 It has been said (R v. Verma (1987) 30 A Crim R 441, 443) that “the most straightforward case in which separate trials will not be ordered is where the evidence admissible on the trial of one charge is in any event admissible on the trial of the other, by way (for example) of similar facts.”

5 The basis upon which Puckeridge DCJ ordered that there be separate trials is set out in his judgment as follows:

"I have considered the submissions of the Crown and also considered the statements of the three complainants which were handed up. I consider that the prejudice to the accused if the trial was to proceed on the basis of one indictment for all three complaints (sic) would be very high. Accepting that the evidence from all three complainants alleged acts which have striking similarity, and that such evidence would have significant probative value. I consider that if a trial was to proceed on the basis of the one indictment as proposed, the accused would be denied the opportunity of a fair trial.

The Crown seeks to rely on the similar acts of the three complainants to show a tendency to behave in circumstances of each particular charge and show the improbability of the offence occurring coincidentally.

It has been indicated to the Court the accused denies each and every charge. It may be that evidence adduced on behalf of one complainant might be considered by the Court not properly admissible on a charge by another complainant, despite any question of relevance.

It is a possibility which arises and I consider that the prejudice to the accused is such and the denial of the opportunity of a fair trial is such that it is inappropriate that the trial, as listed to commence on 27 August, should not proceed on the one indictment."

6 The written submissions which have been prepared on behalf of the Crown contain a table setting out, by reference to the statements which were tendered to Puckeridge DCJ on the hearing of the application, those activities on the part of the accused which as his Honour found, demonstrated a striking similarity.

7 That similarity being demonstrated, Puckeridge DCJ, having first considered the provisions of ss 97 and 98 of The Evidence Act 1995 (”the Act) was required to determine whether, by reason of the operation of the provisions of s 101 of the Act, that evidence ought, or ought not, to be admitted at a trial, whether a trial in relation to the offences against one complainant, or in relation to the offences against all three complainants.

8 Section 101 (2) of the Act provides:

"Tendency evidence against a defendant, or coincidence evidence about a defendant that is adduced by the prosecution, cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."

9 It is clear from the passage from Puckeridge DCJ’s judgment, which I have set out earlier in these reasons, that his Honour did not proceed to carry out the exercise required of him by sub-s 2 of s 101 of the Act. This being so, it appears to me that his Honour erred in the conclusion to which he came and that the Crown has made out a case to have his Honour's order set aside on the ground that the discretion vested in him miscarried.

10 As a result of discussion which has taken place during the course of submissions, it seems clear that the accused would not oppose the order made by his Honour being set aside and the matter being remitted to his Honour to be dealt with according to law, so long as it is accepted, as I do accept, that, in that event, it would be open to the accused to make a fresh application seeking to obtain an order for a separate trial, or separate trials, in relation to any charges that may be the subject of the indictment, which is ultimately preferred against him.

11 I would, therefore, propose that the appeal be allowed, that the order made by Puckeride DCJ set aside and that the matter be remitted to the District Court to be determined in accordance with law.

; I agree.

; I also agree.

; Those are the orders of the Court.

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