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

MITCHELMORE JA: I agree with Dhanji J.
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.
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.
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.
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…

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: [2023] NSWCCA 237
Decision Date: 27 September 2023

CaseChat Overview and Summary

The applicants, Singh and Dhillon, sought leave to appeal against their convictions for their involvement in an alleged home invasion. The appeals were heard in the Court of Criminal Appeal. The applicants argued that their cases were weak and that there was no evidence at a joint trial that would be inadmissible if tried separately. They applied for separate trials under section 5F(3) of the Criminal Appeal Act 1912 (NSW). The central legal issue was whether the applicants were entitled to separate trials, given the weakness of the prosecution's case against each of them and the lack of evidence that would be inadmissible at a joint trial. The court considered whether separate trials were necessary to ensure a fair trial for each applicant.

The Court of Criminal Appeal found that the prosecution's case against each applicant was weak, and there was no evidence that would be inadmissible if the trials were held jointly. The court determined that the interests of justice required separate trials to ensure that each applicant had a fair opportunity to present their defence. The court granted the applicants leave to appeal and dismissed the appeals, affirming the conviction but allowing for a retrial with separate trials for each applicant. The court held that separate trials were necessary to ensure a fair trial and to protect the applicants' right to a fair hearing.

Orders