Corbett v The State of Western Australia - [2016] WASC 313

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CORBETT -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 313

CORAM: CHANEY J

HEARD: 21 SEPTEMBER 2016

DELIVERED : 21 SEPTEMBER 2016

PUBLISHED : 29 SEPTEMBER 2016

FILE NO/S: INS 39 of 2016

BETWEEN: MARK DAVID CORBETT
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal procedure - Separate trials - Co-accused's jointly charged on one count - Only one accused charged on second count - Whether prejudice can be cured by jury direction

Legislation:

Criminal Procedure Act 2004 (WA), s 133(3), s 133(4), s 133(5)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     Mr F Merenda
Respondent:     Ms L E Christian
Co-accused:     Mr D J McKenzie

Solicitors:

Applicant:     Sklarz Lawyers
Respondent:     Director of Public Prosecutions (WA)
Co-accused:     David McKenzie Legal Pty Ltd

Case(s) referred to in judgment(s):

Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20
R v Jones (1991) 55 A Crim R 159
CHANEY J:
(This judgment was delivered extemporaneously on 21 September 2016 and has been edited from the transcript)

This is an application by Mr Corbett for separate trials in relation to the charges which are brought against him and a co‑accused, that on 19 May 2015 they murdered Wade Cameron Dunn. The trial is listed to commence on 31 October 2016. Initially, both accuseds were charged with that offence, and that was all that was the subject of charges, but on 15 August 2016 the State filed a fresh indictment, adding a further count which is relevant only to the co‑accused. Count 2 alleges that, between 17 December 2015 and 30 March 2016, the co‑accused conspired with another or others to pervert the course of justice on his prosecution on the murder charge.
The gravamen of the allegations in relation to count 2 is that, whilst remanded in custody in respect of the murder charge, the co‑accused conspired with a fellow inmate, Mr Speer, and another to assault Aaron David Corbett, who is the son of the applicant, in an attempt to induce Aaron Corbett to retract a statement made to police. The essence of this application is that the hearing of count 2 on the indictment at the same time as the hearing of count 1 in respect of both accuseds would be unfairly prejudicial to the applicant in a way which could not be cured by directions to the jury as to the separate use to be made of particular evidence in relation to count 2.
The State's case against the applicant consists of alleged admissions to Aaron Corbett and to another witness, Mr Callum McDowell, and admissions said to have been made to a prison informant, Mr Speer. There is also evidence to be led of what is said to be an attempt to enlist the assistance of a Mr Staveley in the proposed assault on the deceased. In addition, the State will rely on a range of forensic evidence and some CCTV footage of an altercation outside the applicant's house on the night the offence is said to have occurred.
In relation to count 2, the case against the co‑accused will consist of evidence of Mr Speer. Mr Speer will also give evidence of admissions said to have been made by the co‑accused as to an offence the subject of count 1. In addition, in relation to count 2, there is evidence of notes are said to have been created by either Mr Speer or the co‑accused, or both, relating to the alleged conspiracy, and there is also reliance by the State on some recorded conversations concerning the alleged conspiracy.
There is no issue between the parties before me as to the test to be applied in relation to the ordering of separate trials. Section 133(3) and (4) of the Criminal Procedure Act 2004 (WA) provides that the court may provide separate trials if, in prescribed circumstances, it is satisfied that an accused is likely to be prejudiced.
Section 133(5) of the Act provides that it is open to a court to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury, regardless of whether the evidence against one accused is not admissible against the other.
Essentially, the test to be applied is whether or not the applicant for a separate trial can be afforded a fair trial by avoiding the prejudice which will flow from the matters being dealt with together. It is also common ground between the parties that it can be assumed that a properly instructed jury is capable of distinguishing between evidence that is admissible and usable against one accused but not admissible and not able to be used against another accused. Reference is made by both parties to Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, being the authority for that proposition.
The essential propositions upon which the applicant relies in this application are found at [20] ‑ [23] of the written submissions. The first proposition is that, because the jury will be likely to glean from the evidence in support of count 2 that the co-accused's conduct tends to corroborate the truthfulness of the evidence of Mr Aaron Corbett and Mr McDowell against each accused, no curative direction could be given to overcome that prejudice.
It is further said that Mr Speer's complicity and cooperation with the State in respect of their investigation of count 2, being a matter being completely peripheral to the charge against the applicant on count 1, will unfairly bolster the credibility of his evidence as to the alleged admissions that the applicant made in his presence, that credibility being very much a live issue in the applicant's trial. In that sense it is said that the admission of the evidence in relation to count 2, which is only admissible against the co‑accused, will undermine the applicant's prospects of a fair trial because the evidence of those people to whom admissions have been said to have been made will be bolstered by evidence which would not be admissible in a separate trial.
Reliance was placed by the applicant on the decision of R v Jones (1991) 55 A Crim R 159, which dealt with a similar question. In [19] of the State's submissions, a number of bases for distinguishing the facts of this case from those in Jones are set out. That paragraph reads:
The circumstances of this case are distinguishable from those in Jones for a number of reasons:
(a)In Jones it was not the mere fact that the inadmissible evidence, which was out of court statements of the co‑offender, had the potential to bolster the credibility of a crucial witness that meant separate trials were required. It was a combination of factors. Here, only the one factor is relied upon.
(b)The evidence in respect of Count 2 is not capable of bolstering the credibility of Aaron Corbett, let alone that of Callum McDowell. The Accused Jackson's conduct of itself (as opposed to in combination with other factors) says nothing about the truthfulness of Aaron Corbett's statement. On its own Jackson's desire to dissuade Aaron Corbett from giving evidence is equally consistent with Aaron Corbett's evidence being untrue. It is that conduct in combination with other evidence that could lead a jury to be satisfied that the only reasonable explanation for Jackson's conduct is that what he told Aaron Corbett was true.
(c)Mr Speer's complicity in Count 2 and his cooperation in respect of giving evidence against the Accused are unlikely to be things that will bolster his credibility. An accomplice warning will be given and it is likely that it will be alleged Mr Speer has a powerful motive to lie about both Accused making confessions to him, namely to avoid prosecution in respect of the conspiracy.
(d)In Jones the evidence by the main witness that was said to be bolstered by the inadmissible evidence was evidence about what she saw and heard that directly implicated both accused in the murder. It would be absurd to expect that a properly instructed jury in those circumstances could evaluate the credibility and reliability of that same evidence separately and differently when it came to considering the case against each accused, particularly in circumstances where the incriminating statements of one of the accused confirmed the witness's account. In this matter the evidence of Aaron Corbett, Callum McDowell and Laith Speer that is admissible against each Accused is distinct. Juries are routinely told that they do not have to accept all of a witness's evidence. In the circumstances of this matter it would be open for the jury to believe that admissions were made to one or more of the three witnesses by one Accused, but not by the other Accused. A contrived and convoluted direction would not be required in this case.
(e)In this matter the State is not substantially relying upon the evidence of one, or two, key witnesses which is open to serious challenge making the inadmissible evidence against the Applicant particularly dangerous.
(f)This is not a case where only one of the Accused has made admissions against interest. Both Accused have made admissions, or confessions, to the same three witnesses. Neither Accused has made admissions as to his involvement in the killing of the Deceased in a record of interview.
(g)The case against the Accused Jackson is not much stronger than the case against the Applicant.
I consider that there is merit in that submission, and I accept and adopt those distinguishing factors set out in [19] of the submissions of the State as forming the basis for my decision in this case.
It also can be said that this is not a case where the case against the applicant is weaker than the case against his co‑accused. Indeed, so much is accepted by the applicant's counsel, but the proposition is that balance will be upset because of the potential to add credibility to the evidence of Mr Speer by reason of corroborating evidence in relation to count 2 so that the case against Mr Corbett would be made stronger than it otherwise would be if that evidence was not admitted.
I have undertaken a review before this hearing of the various statements to which my attention has been drawn and the written submissions, and some other parts of statements relating to the evidence of alleged admissions and the evidence in relation to count 2. Having undertaken that process, I am satisfied that the evidence is sufficiently discrete (that is, the evidence relating to count 2 is sufficiently discrete and is easily identified) and, therefore, is capable of clear direction to the jury as to the use that could be made of that particular evidence.
It seems to me that the concerns as to the potential to bolster credibility of other witnesses are overstated by the applicant. Their evidence is discrete. It is open to the jury to accept part of their evidence and not accept other parts, and that is a direction which will be given to them at the time of trial.
Having considered all of the submissions, I have reached the conclusion that there is no reason why a jury properly directed cannot deal with the evidence in respect to the particular accused in respect of which it is admissible, and that there is no undue prejudice which cannot be cured by such a direction. It is on that basis that I propose to dismiss the application.