McKellar v R [2014] NSWCCA 35

McKellar v R [2014] NSWCCA 35

Although the trial judge overstated the Crown's position by saying the Crown would invite the jury to reject the co-accused statements identifying the applicant as the stabber, that error was not material. The case was materially distinguishable from Pham, the Crown did not need to prove who stabbed the deceased because it relied on joint criminal enterprise, and appropriate jury directions could address the risk of unfair prejudice. No material factual error or latent discretionary error was shown, and no clear case of unremediable prejudice justified stopping the trial.

Jurisdiction
Australia
Judgment Date
14 March 2014
Procedural Posture
Criminal Interlocutory Appeal / Application for Leave to Appeal Under S 5 F of the Criminal Appeal Act 1912 (nsw) From Refusal to Order a Separate Trial
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['interlocutory Appeal' 'joint Trial' 'separate Trial' 'prejudice From Inadmissible Evidence Against Co Accused' 'discretionary Decision' 'jury Directions']
['criminal Law' 'criminal Procedure' 'evidence' 'appellate Procedure'] ['interlocutory Appeal' 'joint Trial' 'separate Trial' 'prejudice From Inadmissible Evidence Against Co Accused' 'discretionary Decision' 'jury Directions']

Case Brief

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Procedural Posture

Criminal Interlocutory Appeal / Application for Leave to Appeal Under S 5 F of the Criminal Appeal Act 1912 (nsw) From Refusal to Order a Separate Trial

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from the refusal to order a separate trial.' 'Whether the trial judge made a material error of fact in refusing a separate trial.' 'Whether inadmissible evidence tendered against co-accused created an unacceptable risk of prejudice to the applicant that could not be cured by directions.' 'Whether appellate intervention was justified in a discretionary interlocutory decision.']

Ratio Decidendi

Although the trial judge overstated the Crown's position by saying the Crown would invite the jury to reject the co-accused statements identifying the applicant as the stabber, that error was not material. The case was materially distinguishable from Pham, the Crown did not need to prove who stabbed the deceased because it relied on joint criminal enterprise, and appropriate jury directions could address the risk of unfair prejudice. No material factual error or latent discretionary error was shown, and no clear case of unremediable prejudice justified stopping the trial.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.']