Singh v The King; Dhillon v The King

[2023] NSWCCA 237

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Singh v R; Dhillon v R [2023] NSWCCA 237

Hearing dates:

8 September 2023

Date of orders:

27 September 2023

Decision date:

27 September 2023

Before:

Mitchelmore JA at [1];
Dhanji J at [2];
Sweeney J at [33].

Decision:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

Catchwords:

CRIME – appeals – application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) – application for separate trials – alleged home invasion – where case against each applicant is weak – where not established that there will be any evidence led at a joint trial which will be inadmissible as against the applicants – leave granted – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), s 61, s 112(2)

Criminal Appeal Act 1912 (NSW), s 5F(3)(a)

Criminal Procedure Act 1986 (NSW), s 21

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(4)

Cases Cited:

DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63

R v Mitchison; R v Wells; R v Whelan [2016] NSWSC 463

Trotter v R [2016] NSWCCA 57

Category:

Principal judgment

Parties:

Amandeep Singh (Applicant)
Jagjit Singh Dhillon (Applicant)
Rex (Respondent)

Representation:

Counsel:
E Ozen SC (Applicants)
M Millward (Respondent)

Solicitors:
Dib & Associates Lawyers (Applicants)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2021/140261; 2021/143241

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

14 April 2023

Before:

Bourke SC DCJ

File Number(s):

2021/140261; 2021/143241

JUDGMENT

1. MITCHELMORE JA: I agree with Dhanji J.

2. DHANJI J: Amandeep Singh and Jagjit Singh Dhillon (the applicants), seek leave pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), to appeal against the interlocutory judgment of Bourke SC DCJ on 14 April 2023, in which his Honour refused their applications for a separate trial.

3. The applicants are due to stand trial on 8 April 2024 in the District Court at Sydney on an indictment in respect of one count of aggravated break, enter and commit a serious indictable offence, namely, intimidation, contrary to s 112(2) of the Crimes Act 1900 (NSW) (count 1) and two counts of common assault, contrary to s 61 of the Crimes Act 1900 (counts 2 and 3). The applicants are jointly indicted alongside three co-accused, Hassan Nadeem, Sumit Singh Rana, and Rajesh Kumar Singh.

4. On 10 April 2023, the applicants, by Notices of Motion, sought orders, pursuant to s 21 of the Criminal Procedure Act1986 (NSW) that their trials be heard separately from the trial of the three co-accused. They did not seek to be tried separately from each other. Following argument on 12 April 2023, Bourke SC DCJ, on 14 April 2023, delivered judgment refusing the applications.

5. The applicants now seek leave to appeal the decision of Bourke SC DCJ. There is no issue that the order of the District Court refusing the applicants’ motion to order separate trials is an “interlocutory judgment or order given or made in the proceedings” and, as such, the proposed appeal pursuant to s 5F(3) of the Criminal Appeal Act is competent.

6. Leave is additionally required as the Notices of Appeal were filed more than 14 days after the delivery of the interlocutory judgment: Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(4). The Notices of Appeal were not filed until 9 June 2023, the relevant judgment having been given on 14 April 2023. The application for an extension of time explains that a delay was caused as a result of the unavailability of counsel’s advice. In determining whether an extension should be granted, it is necessary to consider the merits of the proposed appeal.

The Crown Case

7. The three counts on the indictment all relate to an alleged home invasion on 16 May 2021, at a residential property where the complainants, Amandeep Singh-Johal and Khushwinder Singh-Sidhu, lived. The applicants, together with the three further co-accused, are charged jointly with respect to each of those counts.

8. At the time of the alleged offending, the complainants and their cousin, Gagandeep Singh, were to be called as witnesses in separate criminal proceedings in the Local Court. The applicants’ three co-accused in the present proceedings, Hassan Nadeem, Sumit Singh Rana, and Rajesh Kumar Singh, were defendants in those proceedings. They were alleged to have assaulted Gagandeep Singh and Amandeep Singh-Johal in the same residential property as the present offending.

9. It is the Crown case that on 16 May 2021, the applicants, the three co-accused, and an unidentified sixth person, entered the residential premises through an unlocked rear door with baseball bats and metal rods and assaulted the complainants. During the incident, it is the Crown case that a number of the assailants threatened the complainants that, inter alia, “if you give … witness statement against us, we going to … hurt you really badly, we’re going to kill you and it can be bad for you”.

10. When first spoken to by the police, Amandeep Singh-Johal was able to name the three co-accused (Hassan Nadeem, Sumit Singh Rana, and Rajesh Kumar Singh), but was unable to name any of the other three alleged assailants. Khushwinder Singh-Sidhu was also able to identify the three co-accused and said he did not know the other three offenders. He described one of the unidentified assailants as having a tattoo on his right leg.

11. The complainants discussed the matter with Gagandeep Singh, including the identity of the, as yet, unidentified assailants. Gagandeep Singh said that he was told by Khushwinder Singh-Sidhu that one of the men had a tattoo on his leg. Amandeep Singh has a tattoo on his leg, a fact known by Gagandeep Singh. Gagandeep Singh said he was also told by one of the complainants, apparently, though it is not entirely clear, Amandeep Singh-Johal, that he recognised one of the men (allegedly Jagjit Singh Dhillon), as having been present at a birthday party some time earlier.

12. As a result of the above discussions, on 17 May 2021 (the day after the offence), Gagandeep Singh sent the complainants photographs of the applicants on Facebook, with the, at least, implicit suggestion being they may have been among the assailants. Amandeep Singh-Johal identified the applicants from those photographs. In his recorded interview, Amandeep Singh-Johal told police that he had never met Amandeep Singh before, but recognised him in the photograph and, with respect to Jagjit Singh Dhillon, told police that he did not know him but had seen him at a birthday party some 12 to 18 months prior. Khushwinder Singh-Sidhu’s interview with police is silent as to this identification process. Gangadeep Singh, however, told police that Khushwinder Singh-Sidhu was able to identify the applicant Amandeep Singh but that he did not ask him about the applicant Jagjit Singh Dhillon. The evidence of identification is central to the Crown case against the applicants and is discussed further below.

The principles to be applied on an application for a separate trial

13. The primary judge referred to the reasons of R A Hulme J in R v Mitchison; R v Wells; R v Whelan [2016] NSWSC 463 with respect to the principles to be applied on an application for a separate trial. The applicants raised no issue with that summary of the principles, reproducing his Honour’s reasons in their written submissions. In that case, R A Hulme J adopted the following summary provided by counsel (at [56]):

“The Court has the power to order a separate trial if the Court is of the opinion that the matters, ‘ought to be heard and determined separately in the interests of justice’ (Criminal Procedure Act 1986 (NSW), ss 21 and 29).

The cases have established the following principles:

(a) Where the Crown case is an allegation that the accused were parties to a joint enterprise the starting point is that the matter should be heard as a joint trial, which particularly applies if the co-accused place the blame on each other. (Webb & Hay (1994) 181 CLR 41 at 88-89 per Toohey J; Dominican & Thurgar (1989) 43 A Crim R 24 at 26)

(b)    The jury will act upon directions given to them by the Judge in relation to which evidence applies to an accused. (R v Pham [2004] NSWCCA 190 at [40]-[41])

(c)    There is a public interest in the avoidance of the risk of inconsistent verdicts. (Ross v R [2012] NSWCCA 207 at [24])

(d)    There is a public interest in avoiding the inconvenience to witnesses, ensuring finality is reached as expeditiously as possible in one trial. (Ross v R at [24])

(e)    The interests of justice are not limited to the interests of the accused.

(f)    The accused bears the onus of establishing the reasons for the making of an order granting a separate trial. (R v Bikic (2000) 112 A Crim R 300 at [21])

(g)    The applicant for a separate trial must demonstrate there is a real risk that a positive injustice would be caused to him as a consequence of the joint trial. (R v Patsalis & Spathis (No 1) (1999) 107 A Crim R 432 at [6]-[13])

(h)    A positive injustice can be demonstrated where the prejudicial and inadmissible material against an accused would be likely to turn a potential acquittal into a conviction. (R v Pham at [39] per Adams J (applied in Madubuko v R [2011] NSWCCA 135 at [32] per Hodgson JA))

(i)    Hunt J said in R v Midis (NSWSC, 27 March 1991, unreported) applied in R v Baartman (NSWCCA, Gleeson CJ, Power JA and Smart J, 6 October 1994, unreported) and Ross v R [2012] NSWCCA 207 at [25]:

(i)    where the evidence against the applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him (cf R v Pham per Adams J at [40]; Madubuko v R per Hodgson JA at [29]);

(ii)    where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and

(iii)    where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant, the applicant must show that a positive injustice would be caused to him in a joint trial.

The term “immeasurably” has been held to mean “significant although not incommensurable” (R v Pham at [32]). There is also subsequent authority casting real doubt as to whether the proposition that the case against the applicant is significantly weaker than that against the co-accused is a relevant consideration (R v Pham per Adams J at [40]; Madubuko v R per Hodgson JA at [29]).”

14. Given the approach of the applicants, it is unnecessary to go beyond the above statement of relevant principles.

The appeal

15. No grounds of appeal have been filed in support of the applications. Written submissions filed in support of the application did not articulate any ground of appeal. This deficiency was pointed out in the written submissions filed by the respondent. This did not result in any attempt to rectify the situation.

16. The determination of an application to order a separate trial brought pursuant to s 21(2)(a) of the Criminal Procedure Act involves the exercise of a discretion: DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [77] (per Allsop P). In the present matter, no application was made to adduce “fresh, additional or substituted evidence”. The appeal is therefore to be determined on the evidence before the court below: Criminal Appeal Act, s 5F(4). In this circumstance, the observations of this Court in Trotter v R [2016] NSWCCA 57 apply. There, their Honours (Beazley P, Johnson and Harrison JJ) said (at [20]):

“Being a discretionary decision, error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 must be demonstrated for the applicant to be successful: see DAO at [78] per Allsop P; DSJ v R; NS v R [2014] NSWCCA 77 at [61] per Gleeson JA, with whom Hidden J agreed. Thus it must be shown that the trial judge, in the exercise of his discretion, erred in acting on a wrong principle; allowed extraneous or irrelevant matters to guide or affect him; mistook the facts; failed to take into account some material consideration; or that the result is unreasonable or plainly unjust such that the Court may infer a failure to properly exercise the discretion.”

17. The written submissions for the applicants commenced by setting out the relevant principles to be applied in determining an application for a separate trial, as referred to above. The submissions then sought to highlight the difference between the cases against the applicants and the cases faced by the other three co-accused, extracted a portion of his Honour’s reasoning and then, again, highlighted the weakness of the case against the applicants. To the extent that any error was asserted, the written submissions state the primary judge erred in making the following finding:

“This is not a case where it has been argued that there is some evidence inadmissible against either of the applicants and prejudicial to them such that the case against either of them will be made significantly and unfairly stronger.”

18. The applicants argued there was a significant body of evidence that was not admissible as against them that would be admitted as against the co-accused. It was further submitted that that material was not only inadmissible as against the applicants but created a significant risk of unfair prejudice. The applicants submit that their counsel below did point to some evidence said to be inadmissible against them, being the motive of the three co-accused to commit the offence, a motive not shared by them.

Determination

19. It can be accepted at the outset that the case against the applicants is significantly weaker than that against the other three co-accused.

20. As set out above, there was a home invasion in which violence was visited on the two complainants. Those complainants recognised the three co-accused. Those three co-accused had a motive to commit the offence in that they wished to dissuade the complainants from giving evidence against them in the Local Court proceedings. That motive was made explicit in the course of the attack, during which the complainants were questioned as to why they had complained and given a written statement “against us”. Reference was made to “our case”. The reliability of the complainants’ evidence that they recognised three of the assailants, thus receives significant support (assuming their credibility), from the statements made in the course of a joint enterprise in which the assailants identified themselves as defendants in the earlier case.

21. In addition to the above, there is circumstantial evidence linking the other three co-accused to the offence, including DNA evidence linking Hassan Nadeem and Sumit Singh Rana with two cars connected with the offence and communications between the three co-accused on 16 and 17 May 2021. Additionally, those three co-accused were located together in the late afternoon of the day following the offence in a residence where the keys to the two vehicles linked with the offence were also found. Those vehicles were themselves located nearby.

22. By contrast, the evidence against the applicants appears weak. Amandeep Singh was not recognised by the complainants at the time. There is a suggestion that Jagjit Singh Dillon was recognised as a person who attended a party some 12 to 18 months prior but without any greater degree of familiarity between him and the complainants. Neither is suggested to have a motive for the attack, other than, perhaps, a vague suggestion, of questionable admissibility, that they were supporters of the co-accused. It appears that their identification only occurred as a result of the suggestion of Gagandeep Singh. Gagandeep Singh told police that he was informed one of the attackers had a “tattoo on the leg”. As noted above Khushwinder Singh-Sidhu, but not Amandeep Singh-Johal told police one of the then unrecognised assailants had a tattoo on his leg. Gagandeep Singh told the police that, from what he was told, including the information about the tattoo, he thought “it could be those people”, referring to the applicants. He told police that he first sent a group photograph but the complainants were unable to “pick ‘em out of that”. He then sent individual photographs of the two applicants resulting in Amandeep Singh-Johal identifying them as two of the three previously unidentified assailants and, as discussed above, according to Gagandeep Singh, Khushwinder Singh-Sidhu identifying at least the applicant Amandeep Singh as one of the unidentified assailants.

23. Beyond this, the only evidence before the primary judge linking the applicants to the offence was evidence, in a summary form, of data obtained from telephones connected to each of the other three co-accused. The data in relation to each telephone records that there were “numerous calls” between those handsets and handsets linked to the applicants on 16 and 17 May 2021. The content of the calls is not known. The number of calls is not known. Nor is it known what other calls were made. For all that is known, to the extent that the applicants were in communication with the other three co-accused, they may have been trying to dissuade them from their plan.

24. Further, care is required in considering the evidence of identification and the evidence of association cumulatively. That is because it cannot be assumed that the two strands of evidence are independent. To the contrary, Gagandeep Singh told the police that the applicants were “supporting the other side”, referring to the co-accused. It seems likely his nomination of the applicants, leading to their identification, was based, to a significant extent, on his understanding that they were associates and supporters of the other co-accused and that the applicant Amandeep Singh has a tattoo on his leg.

25. No further analysis is required to conclude that the case against each applicant is weak. It might be wondered if those cases would be pursued were a case not being run against the other three co-accused. It is not, however, the role of this Court to intervene on this basis. The Director has chosen to bring the applicants to trial. The applicants’ complaint is that, not only is the case against them weak, but they will be affected by inadmissible and prejudicial evidence led in the trial of the three co-accused. It is this complaint that is to be evaluated.

26. The difficulty for the applicants is that it is by no means clear that the evidence to be led against the co-accused will be inadmissible against them. No rulings have been made. It was not conceded by the Crown that the evidence to be led against the three co-accused is not admissible against the applicants. The primary judge was not asked to decide the matter on the basis that significant parts of the evidence would be inadmissible as against the applicants. It is not for this Court to make such rulings.

27. The submissions on behalf of the applicants in the Court below, in fact, accepted that the evidence to be led against the co-accused would be admissible against them. In the course of submissions, the primary judge put to counsel for Amandeep Singh (who led the argument for the applicants) that “[i]t is not really an unfair prejudice argument, it’s essentially an inherently weaker case argument”. Counsel responded, “I think that’s a fair summary” but then submitted that “[p]erhaps the only piece of evidence which may be the subject of objection at trial is whether or not the evidence led about the local court matter, which the applicants have nothing to do with, was admissible against the applicants”. However, when his Honour responded “[w]ell I thought it was probably admissible but only as context evidence”, counsel responded “I think that’s right”.

19. Absent the concession made by counsel below, I would, in any event, have come to the same conclusion. The matter can be analysed in the following way. The Crown case is the applicants were two of six assailants. Three of those assailants had a motive for the attack and were recognised by the complainants. The other three had no motive. As against the applicants, the Crown case is they were later identified by the complainants as two of the three previously unidentified attackers.

20. In addition to the identification, the Crown, as against the applicants, seeks to prove the commission of the offence by the three co-accused. Such proof is relevant to proof of the happening of the event itself (although, I accept this would be very unlikely to be an issue in any separate trial of the applicants). More significantly, the Crown relies on evidence of the association between the applicants and the three co-accused on 16 and 17 May 2021. This circumstantial evidence relies, for its probative value, on proof of the commission of the offence by the co-accused. It is thus far from clear that evidence which goes more directly to prove the offence against the co-accused will not be admitted against the applicants.

21. The applicants have not established that there will be any evidence led at a joint trial which will be inadmissible as against them, let alone that inadmissible and prejudicial evidence will be led at a joint trial. No error was made by the primary judge. The application must fail.

22. While I have found no error in the refusal to order a separate trial, it remains the case, as recognised by the trial judge, that, assuming a trial against the applicants proceeds based on the identification and limited evidence of association as discussed above, careful directions will be required. Those directions will need to make clear (assuming it remains the case) that the only issue with respect to each applicant is identification and the limited relevance of significant parts of the evidence as a result. Obviously, directions will also be needed with respect to the inherent weakness of the identification evidence, and the limitations of any evidence of association between the applicants and the three co-accused, to the extent that may not otherwise be apparent to the jury.

23. Having had full argument on the matter, I would grant leave to appeal, but dismiss the appeal.

24. SWEENEY J: I agree with Dhanji J.

**********

Amendments

02 June 2025 - Publication restriction removed

Decision last updated: 02 June 2025