KK v Director of Public Prosecutions

Evidence given by a co-defendant in a Newton hearing is inadmissible in the separate trial of another co-defendant unless that person is called as a witness in that trial. A conviction cannot safely stand where the trial judge relied materially on such evidence and the appellate court cannot disentangle its effect.

Where a guilty plea is rejected on a factual basis, the Newton hearing will ordinarily follow the co-defendant’s trial before the same tribunal. In the Youth Court or Magistrates’ Court, however, a different tribunal may be required where the trial judgment necessarily determines an issue that the Newton hearing must reconsider. Once that problem is identified, case-management decisions and procedural delay do not justify proceeding unfairly.

KK was tried in the Youth Court for robbery alongside a co-defendant, MGS, who had pleaded guilty but whose basis of plea was not accepted. The District Judge directed that KK’s trial and MGS’s Newton hearing should take place together and delivered one judgment.

MGS gave evidence during the hearing. The judge relied on that evidence in finding that KK had committed the robbery with a knife. On a case stated, the principal issues were whether MGS’s evidence was admissible in KK’s trial, whether the conviction could stand without it, and how such linked proceedings should be conducted in the Youth Court.

1. Disposition. The appeal was allowed. The conviction was quashed and KK was to be re-tried before a different judge as soon as possible.
2. MGS was not called by the prosecution, by KK, or by the judge as a witness in KK’s trial. He was therefore not a witness in that trial. His evidence in the Newton hearing should not have been admitted or taken into account when determining KK’s guilt.
3. The District Judge had relied on MGS’s evidence in deciding that KK was the robber. Although there was other identification evidence, the appellate court could not determine that the conviction would have followed without the inadmissible evidence. Applying the approach in R v Turnbull [1976] 3 All ER 549, the conviction was unsafe.
4. The usual practice identified in R v Patrick Smith (1988) 10 Cr App R (S) 271 is that the Newton hearing follows the co-defendant’s trial. Evidence from the trial may generally be taken into account in the Newton hearing, which should ordinarily be conducted by the same judge or bench.
5. That practice does not invariably apply in the Youth Court or Magistrates’ Court. A different tribunal is required in the rare case where the trial judgment must make an express finding on an issue which the Newton hearing would need to reconsider. Here, the trial judgment would necessarily have determined whether a knife had been used, making it unfair for the same judge to assess evidence from MGS that no knife had been used.
6. Once the issue was identified, the judge should have heard the trial and adjourned the Newton hearing before a different judge. The failure to raise the issue earlier did not justify continuing with an unfair procedure.

• Youth Court: The District Judge convicted KK of robbery after conducting his trial together with MGS’s Newton hearing and relying on MGS’s evidence.
• High Court (Administrative Court): The conviction was quashed and a re-trial before a different judge was directed.