Billings v R [2012] NSWCCA 33

Billings v R [2012] NSWCCA 33

The applicant failed to establish discretionary error in the trial judge's refusal to sever the counts. Leaving aside counts 5 and 6, there were substantial evidentiary links between the murder count and other counts, and between other counts themselves, so that significant evidence would still be tendered even if the murder count were tried separately. The trial judge considered the risk of prejudice, the capacity of a properly instructed jury to differentiate the evidence, and the inconvenience and risks of multiple trials, and did not give excessive weight to inconvenience. It was premature to find error concerning counts 5 and 6 because the trial judge had not finally determined...

Jurisdiction
Australia
Judgment Date
16 March 2012
Procedural Posture
Criminal Appeal Interlocutory Application Under S 5 F of the Criminal Appeal Act 1912 / Application for Leave to Appeal From Refusal to Sever Counts on Indictment
Outcome
Leave to appeal refused
Legal Topics
['joinder of Counts' 'separate Trials' 'severance of Indictment' 'tendency Evidence' 'coincidence Evidence' 'unfair Prejudice' 'murder Count Tried With Other Offences']
['criminal Law' 'criminal Procedure' 'evidence' 'appellate Procedure'] ['joinder of Counts' 'separate Trials' 'severance of Indictment' 'tendency Evidence' 'coincidence Evidence' 'unfair Prejudice' 'murder Count Tried With Other Offences']

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Procedural Posture

Criminal Appeal Interlocutory Application Under S 5 F of the Criminal Appeal Act 1912 / Application for Leave to Appeal From Refusal to Sever Counts on Indictment

Legal Issues

  1. 1 ["Whether leave should be granted under s 5F of the Criminal Appeal Act 1912 to appeal the trial judge's refusal to sever counts on the indictment." 'Whether the murder count should be tried separately from other counts of armed robbery, attempted robbery, shooting and firearm offences.' 'Whether the trial judge erred by giving excessive weight to inconvenience to witnesses and insufficient weight to the risk of prejudice.' 'Whether evidence relating to one count was admissible or probative in relation to other counts, including as tendency or coincidence evidence.']

Ratio Decidendi

The applicant failed to establish discretionary error in the trial judge's refusal to sever the counts. Leaving aside counts 5 and 6, there were substantial evidentiary links between the murder count and other counts, and between other counts themselves, so that significant evidence would still be tendered even if the murder count were tried separately. The trial judge considered the risk of prejudice, the capacity of a properly instructed jury to differentiate the evidence, and the inconvenience and risks of multiple trials, and did not give excessive weight to inconvenience. It was premature to find error concerning counts 5 and 6 because the trial judge had not finally determined...

Court Disposition

Leave to appeal refused

Orders

  • ['Leave to appeal refused']