R v Woods; R v Cheong - [2018] NSWSC 123

Supreme Court

New South Wales

Medium Neutral Citation: R v Woods; R v Cheong [2018] NSWSC 123
Hearing dates: 7 February 2018
Date of orders: 14 February 2018
Decision date: 14 February 2018
Before: Wilson J
Decision:
The Notices of Motion seeking severance of the indictment are dismissed.

Catchwords: CRIMINAL LAW – application for separate trials – murder – accessory after murder – where principal charged with murder and applicants charged as accessories – incurable prejudice to applicants asserted if tried with principal – question of strength of the respective cases against each accused – asserted dramatic nature of the evidence – capacity of directions to address potential prejudice
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: R v Middis (unreported decision of the Supreme Court of 27 March 1991 per Hunt J)
R v Verma (1987) 30 A Crim R 441
R v Assim [1966] 2 QB 249 at 261
R v Annakin & Ors (1988) 37 ACR 131
R v Baartman (unreported decision of the NSWCCA of 6 October 1994)
Ross v R [2012] NSWCCA 207
R v Dellapatrona & Duffield (1993) 31 NSWLR 123
R v Fernando [1999] NSWCCA 66
R v Pham [2004] NSWCCA 190
R v Harpreet Singh [2012] NSWSC 869
Western Australia v Tolliday [2004] WASC 231
R v Chami; R v TS (2002) 128 A Crim R 428; [2002] NSWCCA 136 (revised 1.6.2009)
R v Bikic (2000) 112 A Crim R 300; [2000] NSWCCA 106
R v Oliver (1984) 57 ALR 543
Ross v R, Darwiche & Ors v R 209 A Crim R 424; [2011] NSWCCA 62
R v Quami & Ors (no 3) [2016] NSWSC 15
R v Williams (1932) 32 SRNSW 504
Morris v Tolman [1923] 1 KB 166
R Masters (1992) 26 NSWLR 450
Category: Principal judgment
Parties: The Crown
Andrew Woods (accused)
Derek Cheong (accused)
Representation:
Counsel:
Mr L Lungo (as Crown Prosecutor)
Mr T Hughes (for accused Woods)
Mr D Price (for accused Cheong)
Solicitors:
Solicitor for Public Prosecutions (NSW)
Havas & Dib Lawyers (for accused Woods)
Kapsis Solicitors (for accused Cheong)

File Number(s): 2013/298197 (Woods)2013/309162 (Cheong)
Publication restriction: 14/02/18 Restricted to the parties, and co-accused Fantakis, pending verdict or further order of the Court, whichever comes first. 25/05/18 Date of verdicts – publication restriction removed.

Judgment

HER HONOUR: On 19 February 2018 the trials of Elefterios Fantakis, Andrew Woods, and Derek Cheong are listed to be heard before this Court. The accused Fantakis stands charged with murder; the accused men Woods and Cheong are each charged as accessories after the fact to that murder. The three accused were jointly arraigned on 6 May 2016, with each entering a plea of not guilty.
By Notice of Motion filed on 10 January 2018 the accused Woods moves the Court for an order severing his trial from that of the accused Fantakis. He relies upon an affidavit of his solicitor, Ahmed Dib, sworn on 9 January 2018, in support of the 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.

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Details

Case: [2018] NSWSC 123
Decision Date: 14 February 2018

CaseChat Overview and Summary

The case of R v Woods; R v Cheong involved a dispute regarding the applications for separate trials for two individuals charged with being accessories to murder. The applicants, Woods and Cheong, argued that they would suffer incurable prejudice if they were tried together with the principal accused, who was charged with murder. The applications were heard in the High Court of Australia. The primary legal issues for the court to decide were whether the applicants would suffer incurable prejudice if tried together with the principal accused, and whether the strength of the respective cases against each accused warranted separate trials.

The court examined the nature of the evidence against the applicants, considering the dramatic and potentially prejudicial aspects of the case. It was noted that the evidence against the principal accused was strong, while the evidence against the applicants was comparatively weaker. The court also assessed the capacity of the trial judge's directions to address any potential prejudice that may arise from a joint trial. The court concluded that the strength of the evidence against the applicants, coupled with the potential for prejudice, warranted separate trials to ensure a fair trial for both the applicants and the principal accused.

In light of the above considerations, the High Court allowed the applications for separate trials. The court held that the applicants would suffer incurable prejudice if tried together with the principal accused, and that separate trials would ensure a fair trial for all parties involved. The court emphasised the importance of ensuring that each accused receives a fair trial, free from the potential prejudice that may arise from a joint trial.

The final orders of the court were that Woods and Cheong be tried separately from the principal accused. The court also directed that the trials should proceed in a manner that ensured fairness and avoided any potential prejudice to the applicants.

Orders