Hough v R

1. [1]

   HOEBEN CJ AT CL: I agree with Walton J and the orders which he proposes.

2. [2]

   WALTON J: By an appeal brought pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), the applicant, Dalton Hough, seeks leave to appeal from the judgment and order of the primary judge of the trial on indictment for two related offences, Wilson SC DCJ, dismissing an application for a separate trial from the co-accused, Jake Michael Milojevic.

Background to the Appeal

1. [3]

   The applicant was indicted at the Gosford District Court on 21 May 2019 before the primary judge. The indictment alleged that on 9 December 2017, the applicant and the co-accused committed offences of break and enter the dwelling house of Gary McKew and commit a serious indictable offence therein, namely, larceny in circumstances of aggravation knowing that a person or persons were in the place where the offence was committed, contrary to s 112(2) of the Crimes Act 1900 (NSW) and two counts of recklessly wound, contrary to s 35(4) of the Crimes Act.

2. [4]

   By a notice of motion, the applicant sought an order below for a separate trial pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW).The applicant contended that he would be prejudiced in his defence by reason of being charged jointly with the co-accused by reliance on s 21(2)(a) of the Criminal Procedure Act.

Factual Background

1. [5]

   The Crown case is that on Friday, 8 December 2017, just before midnight, Gary McKew was woken in his home in Blue Haven (a suburb on the Central Coast of NSW) by a number of men making violent efforts to gain entry to the premises. Four men entered by kicking the front door in. The Crown case is that two of those four men were the applicant and the co-accused. Isaac McKew (Gary McKew’s son) was kicked and punched to his head and body, later receiving stitches for three separate head lacerations (corresponding to a reckless wounding). The men demanded money and drugs from Gary McKew whilst assaulting him, including striking him across the head with a metal wrench (a further reckless wounding charge). The assailants stole several hundred dollars and a leather bag belonging to Gary McKew.

2. [6]

   Gary McKew did not identify any of his assailants. A crime scene examination revealed forensic evidence linking the applicant and the co-accused to the scene. Each participated in a record of interview in which they denied the offences. In their respective interviews, each denied knowing the other. The applicant said that he had been to the house in question on two occasions. The co-accused denied knowing of the house or its usual occupants at all.

3. [7]

   The forensic evidence with respect to the applicant was as follows:

   1. (1)

      DNA from a blood stain on the exterior front door identified as a match with the DNA profile of the applicant;

   2. (2)

      DNA from the mouth of a “Canadian Club” bottle found outside the premises identified as a match with the DNA profile of the applicant; and

   3. (3)

      a fingerprint from the edge of the exterior wooden front door was identified as the applicant's fingerprint.

4. [8]

   The forensic evidence with respect to the co-accused was as follows:

   1. (1)

      DNA from a blood stain on the front porch pole identified as a match with the DNA profile of the co-accused;

   2. (2)

      DNA from a blood stain on the interior front door identified as a match with the co-accused; and

   3. (3)

      two fingerprints from a hallstand mirror identified as the co-accused's fingerprints.

5. [9]

   Police obtained recordings of the co-accused’s telephone calls from custody between January and March 2018. The calls included statements by the co-accused which arguably demonstrated that, in fact, he did know the applicant contrary to his denials in the ERISP and that he had been to the premises in question, but for the purposes of buying or selling cannabis.

6. [10]

   The content of the telephone calls relied upon by the Crown, which is presently applicable, is set out below:

7. [11]

   The Crown contended that it proposed to rely on the recorded telephone calls at trial to demonstrate that:

   1. (1)

      the co-accused did know the applicant, contrary to his denial in his ERISP; and

   2. (2)

      the co-accused did know of the property in question in Blue Haven, and that a person named Gary lives or lived there, again contrary to his denials in his ERISP. The Crown submitted that it did not assert that the content of the calls were admissible against the applicant.

Reasons for Decision

1. [12]

   After referring to the “telephone intercept transcripts” (which ultimately came before the Court in a redacted form provided by the Crown marked as Exhibit A), and the contents of the Crown case statement, his Honour summarised the ERISP’s for the applicant and co-accused. His Honour then referred to the four phone calls asserted by the Crown to be relevant to the case against the co-accused. His Honour’s summary of those calls may be described as follows:

   1. (1)

      Call 1: the reference by the co-accused’s mother to meeting with "Dalton's mum" as a reference to the applicant, which is inconsistent with the assertions of both the co-accused and the applicant in their respective ERISPs that they do not know one another.

   2. (2)

      Call 2: a statement by the co-accused inconsistent with his assertion that he did not know the applicant.

   3. (3)

      Call 3: a statement by the co-accused that he had been to the subject property but had not wanted to tell the police that he had been "selling to the bloke".

   4. (4)

      Call 4: a call in which the co-accused either “expressly or impliedly” acknowledged that he knew a person named “Gary” who lived at Blue Haven (Gary McKew being the complainant in the matter).

2. [13]

   His Honour then described arguments advanced by the applicant in favour of separate trials, as follows:

3. [14]

   In terms of the fourth and fifth factors (relating to the third and fourth phone calls), his Honour stated:

4. [15]

   As to the first factor (the second call), namely, the statement by the co-accused that he knows the applicant, his Honour noted that this was said to have significance because the applicant had, in his ERISP, denied knowing the co-accused. His Honour noted that it might be said that this admission would contradict the applicant’s statement and therefore cast doubt on his credibility.

5. [16]

   His Honour observed in that respect that the relevance of that evidence must be considered in the context of what the Court anticipated the evidence to be. His Honour observed that the DNA evidence, vis-à-vis blood stains on the exterior front door and on a Canadian Club bottle on the ground outside the premises, showed that at some stage the applicant was at the premises where the offending occurred. There was also a finger print on the exterior wooden door. Further, it should be remembered, his Honour noted, that four men gained access to the premises by one or more of them ripping the screen door off its hinges. This was part of a circumstantial case.

6. [17]

   His Honour then stated, before referring to authority, that “the question is the extent to which [the applicant] is affected by an admission to be tendered only in the case against [the co-accused] that he knew [the applicant]”.

7. [18]

   His Honour recognised that a question was whether it was a real result that the weaker Crown case against the applicant would be made significantly stronger by reason of the prejudicial material to be adduced against the co-accused.

8. [19]

   His Honour acknowledged that the case against the applicant was weaker than the case against the co-accused having regard to DNA evidence and the telephone intercepts but was “not satisfied that the evidence to be adduced against the co-accused [contained] material which [was] highly prejudicial to the applicant, although plainly inadmissible against him”.

9. [20]

   His Honour further considered that there was not a real risk that the Crown case against the applicant would be made considerably stronger by reason of the material adduced which was not admissible against the applicant.

10. [21]

    After considering Webb & Hay v R (1994) 181 CLR 41; [1994] HCA 30 (“Webb”) and noting that a “balancing exercise” was required to be undertaken by a judge determining an application for separate trials between community interests and the question of “undue prejudice to an accused”, his Honour found:

Submissions for the Applicant

1. [22]

   In summary, the submissions advanced by counsel on behalf of the applicant were as follows:

   1. (1)

      It was acknowledged that there were strong reasons of principle and public policy that persons charged with committing an offence jointly should be tried together.

   2. (2)

      The trials are expected to be short. Although there will be some inconvenience to witnesses, the two important Crown witnesses are the complainant, Gary McKew and the neighbour, Mr Smithson.

   3. (3)

      Concerning the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts, any inconsistency in verdicts would be explicable in terms of the different Crown cases against each of the accused.

   4. (4)

      There is a real risk that a positive injustice could be caused to the applicant as a consequence of a joint trial.

   5. (5)

      The Crown case against the applicant is not strong. The only evidence implicating the applicant is the forensic evidence. This evidence was located on the outside of the premises. There is no evidence of any association between the applicant and the other offenders. The only evidence of association with the complainant, Gary McKew is the applicant being aware of who he was and having been to the premises on two prior occasions. The applicant did not make any admissions in relation to the offence in his interview with the Police.

   6. (6)

      If the jury find that there is a reasonable possibility of an innocent explanation in relation to the forensic evidence, the Crown case will fail.

   7. (7)

      The Crown case against the co-accused is a lot stronger than the case against the applicant. There is forensic evidence located inside the premises. There are telephone calls involving the co-accused which consist of admissions made by the co-accused in relation to the offences.

   8. (8)

      These admissions against the co-accused are not admissible against the applicant and the basis of the applicant's application for a separate trial was that these telephone calls are highly prejudicial to the applicant's defence of the charges.

   9. (9)

      There is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of these telephone calls.

   10. (10)

       The primary judge did not consider all available inferences of fact adverse to the applicant based on the telephone calls. His Honour only identified there being disadvantage because the co-accused knew the applicant, the co-accused sold the drugs and knew where Gary McKew lived. He did not consider the applicant being involved in criminal activities.

   11. (11)

       As to selling drugs and knowing where Gary Mckew lived, the primary judge considered the matters not to be of “any relevance or significance to the defence by the applicant”.

   12. (12)

       it is submitted that the telephone calls give rise to adverse inferences that the applicant was involved in criminal activities, had a motive to attend the subject premises to commit the offences with the co-accused to support the co-accused in relation to the co-accused’s drug supply activities with Gary McKew and the applicant lied in his record of interview because he knew he was guilty of the offence. These adverse inferences are all relevant and significant to the applicant's defence of the charges. The presiding judge did not consider those inferences of fact in determining the prejudice of the applicant for the purpose of the application.

   13. (13)

       The defence of the applicant is that he was not one of the four persons who entered the premises and committed the subject offences. Any evidence that gives rise to an inference that the applicant was one of the four persons who attended the premises and committed the subject offences must be "relevant" (or "significant") to the applicant's defence.

   14. (14)

       The inferences of fact found by the presiding judge (the second and third argument advanced in support of a separate trial) relate to the co-accused selling drugs and the co-accused knowing Gary McKew. Those facts give rise to conclusions reasonably open to the jury, namely, that the applicant was motivated to commit the offence with the co-accused due to his association with co-accused and to support the co-accused in relation to his drug supply activities with Gary McKew.

   15. (15)

       Accordingly, the presiding judge was in error in finding that the second and third arguments were not relevant (or significant) to the applicant's defence.

   16. (16)

       There was a particular concern where one accused may try to cast blame on the other.

   17. (17)

       The evidence is of a kind which is not really amenable to nullification by judicial directions to the jury. In particular, the prejudice associated with the telephone calls cannot be cured by a direction to the jury.

   18. (18)

       Applying a discretionary balancing exercise in which the concerns which support a joint trial must be weighed against the prejudice to the applicant, separate trials should be ordered.

   19. (19)

       The decision appealed against should be vacated and an order be made granting separate trials (s 5F(5) of the Criminal Appeal Act).

Relevant Principles

1. [23]

   The determination of an application under s 21(2)(a) of the Criminal Procedure Act involves the exercise of a discretion described by Allsop P in DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [77] as being a procedural question involving “a true discretion”. The power involves a choice for or in respect of its exercise, even though the condition for its exercise may have been established.

2. [24]

   In Trotter v R [2016] NSWCCA 57 (“Trotter”), the Court (Beazley P, Johnson and Harrison JJ) set out the legal principles applicable to an appeal of this nature at [19]-[32]. The Court held at [20]:

3. [25]

   As Ms H Roberts for the Crown correctly submitted, it was necessary for the applicant to demonstrate House v King error in order to succeed in the application.

4. [26]

   The Court in Trotter also approved the statement of principle in R v Middis (Unreported, Supreme Court of New South Wales, 27 March 1991) (at 4 and 5) as follows:

5. [27]

   Lastly, in Webb, Toohey J (with whom Mason CJ and McHugh J agreed) held (at 88-89):

Consideration

1. [28]

   In my view, the fundamental flaw in the contentions advanced by the applicant was a failure to demonstrate that the evidence deriving from the telephone intercepts and the apparent differences between the cases of the applicant and the co-accused were not amenable to jury directions.

2. [29]

   Appellate courts have consistently proceeded on the basis that jurors accept and obey the directions given to them by the trial judge: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31]; Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 per Kirby J at [65].

3. [30]

   There is, in my view, no basis established by the applicant as to why a careful and explicit direction given by the primary judge may not exclude from its deliberations at the trial evidence not admissible against the applicant but admissible against the co-accused. In other words, a clear and relatively straight forward direction may be given that the material arising from the telephone intercepts is only relevant to the prosecution of the co-accused and may not be used against the applicant.

4. [31]

   There is nothing about the nature or content of that evidence which would make such a direction ineffective in regulating the jury’s deliberations. The evidence is not excessively lengthy. Nor is it distressing or emotive, complex or confusing: R v Chami; R v Sheikh (2002) 128 A Crim R 428; [2002] NSWCCA 136 at [17]-[22].

5. [32]

   Further, I do not accept the applicant’s contention that the cases against the applicant and the co-accused are “significantly different” and will “swamp” the consideration of the applicant’s case.

6. [33]

   The potential for prejudice on the applicant’s contention arises from the following facts: first, that the applicant denied knowing the co-accused, and the telephone records could be (improperly) taken into account by the jury in casting doubt on the truth of his assertion, and secondly, from the jury using the association between them to draw an inference that the applicant was involved in the offending conduct to assist the co-accused in some dispute he had arising from his drug dealing activities or more broadly, criminal activities. The primary judge considered both of these possibilities. The second one he held was not significant, as discussed above.

7. [34]

   The applicant told police that he knew the occupant of the house and he had been there previously, although he did not specify the circumstances of his visits. Even so, the jury may reject this as a reasonably possible explanation for the type and location of the forensic evidence located in the examination of the crime scene. The blood and its location are consistent with the Crown case.

8. [35]

   The case against the co-accused is very similar. It relies upon a rejection of a reasonable possibility that a DNA match in blood on the front door is a result of a visit to the premises on another occasion. In addition, the Crown may be able to rely upon a consciousness of guilt lie by the co-accused in his ERISP.

9. [36]

   Further, the evidence of the recorded telephone calls of the co-accused was not sufficiently prejudicial, primarily given there was no significant risk that a jury would be unable or unwilling to follow adequate directions.

10. [37]

    It was not necessary for the primary judge to refer in his judgment to all possible inferences that might arise from the telephone intercepts material, and particularly not those that were remote.

11. [38]

    It may be possible for a jury to draw an inference from the intercepted statement of the co-accused that he did not want to tell police “I’m selling to the bloke” that the co-accused lied in his ERISP as to his familiarity with the complainant or perhaps that he was involved in criminal activity (although the Crown was correct to submit that was contained in the co-accused’s statement as an exculpatory statement concerning how the forensic evidence was at the property in question).

12. [39]

    However, it does not follow that there is an available inference that the applicant was selling drugs to the occupant of the house, had a motive to assault Gary McKew or was involved in criminal activities. Nor does it permit an inference that the applicant was motivated to carry out home invasion offences in order to support the co-accused in drug supply activity or resolve a dispute arising in that respect.

13. [40]

    Overall, I consider that the primary judge adequately assessed the potential for any prejudice arising from the inadmissible evidence of the telephone calls in the context of the overall case against the applicant and available jury directions.

Conclusion

1. [41]

   In my view, no error has been demonstrated in the judgment below and leave to appeal should be refused.

Order

1. [42]

   I would propose the following order:

   1. (1)

      Leave to appeal is refused.

2. [43]

   PRICE J: I agree with Walton J.