PARTIES: Regina v Keng Hwee (Kathy) YEO (Appellant)
JUDGMENT OF: Sheller JA Sperling J Adams J
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 70040/98
LOWER COURT JUDICIAL OFFICER: James J
COUNSEL: D Frearson (Crown) P Byrne SC with G Bashir (Appellant)
SOLICITORS: S Kavanagh (Crown) C Bilinsky (Appellant)
CATCHWORDS: CONVICTION APPEAL joint trials whether separation wrongly refused nature of prejudice retrial following quashing on appeal whether Crown significantly changed case whether bound by way first trial conducted whether abuse of process conviction upheld SENTENCE APPEAL significance of bail conditions whether double punishment appeal dismissed
DECISION: Appeal against conviction dismissed Leave to appeal against sentence granted Appeal against sentence dismissed
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
60425/03
SHELLER JA SPERLING J ADAMS J
Wednesday 23 February 2005
REGINA v Keng Hwee (Kathy) YEO
Judgment
SHELLER JA: I agree.
SPERLING J: I also agree.
ADAMS J: INTRODUCTION
On 15 May 2002 the appellant was convicted following trial before James J and a jury of the murder of Christopher Mark Dorrian on a date between 5 and 10 June 1997. She was jointly tried with a Mr Raymond Galea, who was charged with being an accessory after the fact to the same murder. The jury was unable to agree in respect of Galea and he was discharged. Both the appellant and Galea had been earlier tried for Dorrian’s murder and, in the alternative, of being accessories after the fact. The appellant was convicted of murder but Galea was acquitted of murder and convicted, instead, of being an accessory after the fact. Both these convictions were quashed by this Court and new trials ordered. It followed, of course, that Galea could not be retried upon the murder charge of which he had been acquitted. The appellant did not give evidence at either trial.
The appellant submitted in this Court that, at the earlier trial, the Crown case was that one of the appellant and Galea shot Dorrian and the other was an accessory after the fact. This oversimplifies the position. The Crown case was, principally, that Dorrian was murdered in the execution of a joint enterprise of both accused but, in the alternative, the jury would conclude that one was the murderer and the other an accessory after the fact.
At the outset of the trial that is the subject of the present appeal each of the accused sought a separate trial. These applications were refused. A number of the grounds of appeal now brought complain, in different ways, that the failure to separate their trials, in the event, caused a miscarriage of justice. In the appellant’s written submissions to this Court, she did not, contend that the evidence – including the impugned material – could not justify the verdict. Rather, it was…
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
AGLC
R v Yeo [2005] NSWCCA 49
Case
[2005] NSWCCA 49
Decision Date
CaseChat Overview and Summary
In the matter of R v Yeo, the appellant appealed against both her conviction and sentence. The conviction appeal centred on several issues, including whether the trial judge had erred in refusing to order separate trials, whether the evidence presented prejudiced the appellant, and whether the Crown's approach to the evidence at the retrial constituted an abuse of process. The sentence appeal focused on the significance of bail conditions and whether the appellant's sentence amounted to double punishment.
The court examined the appellant's argument that the refusal to order separate trials was an error, resulting in prejudice. The judge held that the joint trial was fair and did not prejudice the appellant, as the evidence introduced was an almost inevitable consequence of a joint trial. The court found that the trial judge did not err in allowing the evidence in question, and that the evidence was admissible against the appellant. The court further found that the Crown's approach to the evidence at the retrial was not inconsistent with the first trial, and therefore did not constitute an abuse of process.
In conclusion, the court dismissed the appeal against the conviction, finding that the appellant's conviction was consistent with the verdicts in the first trial and that the Crown did not undermine the verdicts in the first trial. The court also dismissed the appeal against the sentence, finding that the bail conditions did not amount to double punishment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The sections that follow deal with the particular complaints made by the appellant on this appeal.The evidence of Mark Benjamin Mark Benjamin was a former patient of the appellant at Palm Court, having been admitted for about six weeks from October 1996. He had been her lover prior to her relationship with Dorrian, at a time when she was living with Galea. When the trial commenced it was not expected that he would be a witness, as the police had not found him. However, he was located on the twenty-second day of the trial and the prosecutor indicated that he proposed to call him to give evidence. Counsel for the defence then took a number of objections to parts of Benjamin’s statements which the prosecution proposed to adduce. Benjamin’s relationship or possible relationship with the appellant had already been the subject of evidence. There had been evidence that Benjamin’s primary nurse during his admission had observed that the appellant was spending a lot of time with him. She said that the appellant instructed her that she (the appellant) was taking over Benjamin’s care as his primary nurse. This was reported to management. The Acting Deputy Director of Nursing, Ms Blair, spoke to the appellant about allegations that she was in a sexual relationship with Benjamin. The appellant became very distressed, began dry retching and ran from the room. In effect, she denied the allegations. (I interpolate here that it was submitted in this court that this evidence should have been excluded as unfairly prejudicial since it suggested, it was contended, that it showed that the appellant was adept at feigning distress. It was not part of the Crown case that this was established. The point of the evidence was to prove that the appellant was indeed very distressed at the prospect that she might suffer some disciplinary action. Ms Blair said she believed her. Furthermore, it is part of the normal range of human behaviour that, as with lies, feigning emotions is part of the ordinary armour of all but the most exceptional. The fact that a person did this is not unfairly prejudicial in the sense that a jury would be likely to use it improperly. This submission is unconvincing.) No action was taken by the hospital. It is clear that a relationship such as was alleged would have been grossly improper, that the appellant was aware of this and that she was very troubled at the prospect of exposure. A nurse, Norbert Alcala, had acted in a support role when the appellant was interviewed about allegations that she was having a sexual relationship with Benjamin and, he said, vehemently denied them. He disclosed in cross-examination by Galea’s counsel that he became aware, within a couple of weeks, that Galea believed that the appellant was having an affair, although Galea did not know it was Benjamin. It is obvious that one of the possible motives that the appellant had for killing Dorrian was her fear that he might disclose their relationship, a fear that – the jury could have considered – was very evident in her extreme reaction when Ms Blair put to her the allegations that had been made about the existence of such a relationship with Benjamin.
Decision
Reasons for decision
It is submitted that, having regard to all these matters, including the fact that Galea called character evidence, the directions “failed to cure the prejudice caused by the conduct of joint trials”. This submission should, I think, be understood in the sense that no directions could have corrected the situation created by the conduct of the joint trials. Conclusion I have already stated that, in my respectful opinion, James J was correct in declining to order separate trials. The joint trial that ensued was, in my view, completely fair to the appellant even though, it may be, material was introduced that was, in one respect or another, adverse to her case and which would not have been before the jury unless a joint trial had been conducted. This is an almost inevitable consequence of a joint trial. That does not make the trial unfair. There is no assumption that, to be fair, a trial should normally be conducted in a way in which only the Crown and the particular accused are parties. The very point of a joint trial will often be to allow the jury to evaluate evidence that is adduced by all parties to an alleged criminal transaction. It is only where that evidence, or a part of it, is not admissible against one of the parties yet is of such a character that there is a substantial risk that the jury will wrongly use it against that party that the question arises whether the trials should be or should have been separated. I am satisfied that this did not eventuate in the appellant’s case. Accordingly I would dismiss the appeal so far as it relies on the conduct of a joint trial with Galea. I have already stated that, in my respectful opinion, James J did not err in permitting the evidence as to which issue is taken in this appeal to be adduced in evidence against the appellant. Insofar as the grounds of appeal comprehend these matters, they must be dismissed.Abuse of process The appellant submits that, having regard to the way in which the original trial was conducted, the instant trial was an abuse of process because the Crown approached the evidence in a way that was significantly different. In the first trial the Crown case was that the appellant and Galea were part of a joint criminal enterprise to murder Dorrian and dispose of his remains, whomever of them actually shot him but, in the alternative, one or other of them was guilty of being an accessory after the fact by assisting in the disposal of the body. At the second trial, of course, the Crown was not able to conduct the case that Galea was guilty of the murder of Dorrian, whether by himself or as part of a joint enterprise with the appellant. This limitation applied both to the way in which it conducted the case against Galea and also the case against the appellant. In the first trial it was not necessary for the Crown to prove, in its case against the appellant, that she fired the fatal shot and it did not undertake to do so. This does not mean, of course, that it was the Crown case that she did not do so; nor was it the Crown case that it was not possible to determine whether or not she did so. In the second trial, the Crown undertook the burden, in effect, of proving that the appellant had shot Dorrian, of which the obverse case was, necessarily, that Galea had not done so. It was not the Crown case in the first trial that Galea had not shot Dorrian; it was that, whether he had done so or not, he was acting in concert with the appellant. It seems to me obvious that, although the Crown cast its case against the appellant differently in the second trial to the way it had put in the first, the two cases were not inconsistent in any way that rendered the second trial an abuse of process. Put in another way, the appellant’s conviction at the second trial was consistent with her conviction in the first and there is no basis for surmising that the jury considered in the first trial that she had not actually fired the gun and was guilty because she acted with Galea. The verdicts in the first trial make it virtually certain, in my view, that the jury doubted that Galea had fired the gun – not only in the case against him but, realistically, in the case against the appellant. Far from the Crown attempting to conduct a case that was inconsistent with or undermined the verdicts in the first trial – which verdicts were, at all events, quashed on appeal – the Crown undertook a case which was entirely consistent with those verdicts. This cannot constitute an abuse of process.Inappropriate submission by Crown prosecutor