Director of Public Prosecutions v Bottom & Ors (Ruling No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2020 0174
S ECR 2020 0178

THE DIRECTOR OF PUBLIC PROSECUTIONS
v
JORDAN BOTTOM ALBERT THORN	Accused

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATES OF HEARING:	31 January and 1 February 2022
DATE OF RULING:	14 July 2022
CASE MAY BE CITED AS:	DPP v Bottom & Ors (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 401

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CRIMINAL LAW – Trial – Murder and other alleged offences – Three accused – Application for severance by one accused due to prejudicial material contained in police interviews of other accused – Section 193 Criminal Procedure Act 2009 – Applicable law – Application refused – Evidence – Application by another accused for exclusion of threat allegedly made to former partner – Section 137 Evidence Act 2008 – Probative value significant – Unfair prejudice modest – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson QC with Ms B Goding and Mr T Bourbon	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused Bottom	Mr D Cronin	Papa Hughes Lawyers
For the accused Thorn	Mr J Anderson with Mr A Pyne	Sullivan Braham Barristers & Solicitors

HIS HONOUR:

Introduction

Jordan Bottom (‘Bottom’) and Albert Thorn (‘Thorn’) are charged, along with a third accused Rikki Smith (‘Smith’) with the murder of Bradley Lyons (‘Lyons’ or ‘the deceased’) at Bruthen between 2 and 3 December 2018. In addition, Thorn and Smith are facing an earlier charge of intentionally causing injury to Lyons in Lakes Entrance, Thorn is charged with kidnapping Lyons from his residence in Lakes Entrance, and Bottom and Thorn are both charged along with Smith with falsely imprisoning Lyons at Nyerimilang and divers other locations and assaulting him.
Originally, a number of other individuals including Jana Hooper (‘Hooper’) and Nick Stefani (‘Stefani’) were also charged with various offences on the same indictment and were expected to stand trial. The prosecutions of Hooper and Stefani have resolved into pleas, which will be heard by me on 8 August 2022. The trial of Bottom, Smith and Thorn is due to commence on 15 August 2022.
Two separate matters have arisen at this time for resolution. The first involves an application by Bottom for the exclusion of an implied admission allegedly made by him, by way of a threat to his former girlfriend Jessica MacFarlane (‘MacFarlane’).
The second is an application by Thorn for a separate trial from Bottom and Smith.
Facts
The prosecution case was extensively summarised in the Summary of Prosecution Opening dated 20 August 2021 (‘the Prosecution Summary’) and it is not necessary for much to be said of the facts here. Suffice to say that it is alleged that Lyons was assaulted and abducted in his own home in Lakes Entrance by a group of people including Smith and Thorn, driven in the boot of Thorn’s vehicle to Thorn’s property at Nyerimilang, falsely imprisoned and tortured, and then driven to a remote bush location in Double Bridge near Bruthen and shot dead before being buried in a shallow grave. It is alleged that Bottom, Smith and Thorn were present at the location at which Lyons was shot dead, and that Thorn was the shooter.
Bottom’s application for the exclusion of evidence
Defence submissions
Mr Cronin for Bottom sought the exclusion of a threat allegedly made by Bottom to his girlfriend MacFarlane, set out in paragraph [118] of the Prosecution Summary, contained in the second statement of MacFarlane.
By way of background, Bottom lived with MacFarlane in a caravan on Thorn’s property at the time of the alleged offences. At the time of the threat, Bottom and MacFarlane had drifted apart and were no longer living together. She had been pregnant to Bottom and had miscarried by the time of the threat. They had recently had a fight about her having hidden a bottle of his Xanax, during which he had claimed he could not trust her. MacFarlane indicated that on an occasion after the break-up of the relationship, Bottom called her a snake, and told her that if she said anything, ‘Snakes get their heads cut off’.
In her first statement, dated 19 December 2018, MacFarlane disclosed no information about the circumstances of the deceased’s death. Indeed, she claimed she had never met or heard of him. In her second statement dated 26 March 2019, she indicated that she had left ‘a few thing’ out of her first statement due to her concerns for her safety because ‘I knew about some things which were very accurate’. She said she was scared of Bottom and Thorn.
In the second statement, MacFarlane provided detailed information of things she had seen implicating Bottom and others in the alleged offending. These matters were summarised in the Crown’s written outline of submissions dated 24 December 2021.
Mr Cronin commenced by challenging whether the statement attributed to Bottom was an admission, and then positing the question, ‘And if it is an admission, what is it an admission to?’.[1]
[1]Transcript [36].
In his written outline and early in his oral submissions, Mr Cronin advanced matters other than the charged offences to which the admission, if it was one, might relate, including the animosity between Bottom and MacFarlane, the lack of trust engendered by her theft and hiding of his Xanax, the infidelity between them, or a connection with other offending.
Mr Cronin directed the Court’s attention to the defence response, and submitted that in light of what is actually in issue between Bottom and the prosecution, the comment to MacFarlane has no work to do.
Mr Cronin did not dispute that the evidence would be relevant, but in light of the uncertainty over what it was to which the comment related, Mr Cronin submitted that it would possess limited probative value, which would be outweighed by the substantial prejudice associated with evidence indicating Bottom had threatened the safety of his former partner. Mr Cronin sought the exclusion of the evidence under s 137 of the Evidence Act 2008.
Prosecution submissions
Mr Gibson QC, who appeared with Ms Goding and Mr Bourbon for the Crown, submitted that a threat of the type allegedly uttered here to a witness with the knowledge MacFarlane had pointing to Bottom’s involvement in the offending should be viewed as ‘classic post-offence conduct and the sort of thing that courts have admitted by way of incriminating conduct for a very long period of time’.[2]
[2]Transcript 48-9.
In respect of Mr Cronin’s submission based on the limited matters actually in dispute in the trial, Mr Gibson submitted that it is not actually too clear what Bottom has admitted to, or indeed, what his defence to the charge of murder will be.
Mr Gibson elaborated on the observations attested to by MacFarlane in her second statement implicating Bottom in the crimes, and submitted that there was nothing in the threat uttered by Bottom indicating it related to anything other than her knowledge of his connection with the crimes.
He submitted that the threat should be seen in the context of the fact that Bottom and MacFarlane had recently broken up, and he was legitimately concerned that given that they were no longer a couple, she might ‘spill the beans on what she’d witnessed and what admissions [he] had made’.[3] He submitted that it was a very serious threat which a jury may consider to be referable to his involvement in the torture and murder of the deceased.
[3]Ibid 53.
Mr Gibson submitted that the admission of the evidence would not occasion any unfair prejudice to Bottom. Insofar as there may be some prejudice attaching to evidence showing Bottom had seen fit to threaten the life of his former partner, this should be viewed in light of the substantial probative value of the evidence.
Thorn’s application for a separate trial
Defence submissions
Mr Anderson, who appeared with Mr Pyne for Thorn, outlined in detail, in both his written and oral submissions, the reasons why a separate trial should be granted to Thorn. At the time the oral submissions were advanced before me, Stefani was still charged with the murder and his matters had not been resolved. During the hearing, it was indicated by the prosecution that discussions with Stefani were well advanced and his matters would likely resolve. In the end, resolution was reached, and as indicated earlier, Stefani will appear before me in a plea hearing on 8 August 2022.
A number of aspects of Mr Anderson’s submissions to me assumed the participation by Stefani in a trial with Thorn. Aspects of the evidence in a joint trial resulting from such participation have now fallen away and I will not deal with them in any detail.
The defence application for a separate trial for Thorn should be seen in the context of the apparent defence of Thorn, foreshadowed clearly enough in the defence response which sets out, in part, as follows:
1.        It is not in issue that:
a.Thorn and others attended Lyons’ home where Lyons was assaulted and kidnapped.
b.        Lyons was taken to Thorn’s home by Thorn in the boot of his car.
c.        Lyons was held at Thorn’s property for a number of hours.
d.Lyons was then taken from the property in the boot of Thorn’s mother’s white Corolla.
e.Lyon was subsequently shot in the back of the head and buried in a shallow grave.
2.Thorn admits to participating in an assault on Lyons in Lyons’ home and the kidnapping of Lyons. Thorn will plead guilty to intentionally causing injury and kidnapping in relation to his criminal conduct.
3.It is denied that Thorn further assaulted Lyons at Thorn’s property, that Thorn travelled to the site where Lyons was killed or that Thorn was a party to the killing of Lyons.[4]4
[4]Defence Response, 5 November 2021, [1]-[3].
Mr Anderson indicated that, following on from the above, in issue in the trial will be:
a.What happened to Lyons at Thorn’s property;
b.Thorn’s role in removing Lyons from his property; and
c.Thorn’s role in killing Lyons.
Mr Anderson noted that the prosecution narrative in the Prosecution Summary as to what occurred at Thorn’s property, incorporating the allegations of Lyons having been imprisoned for a time in the boot of Thorn’s vehicle, removed from the vehicle at the instigation of Thorn and tied to a massage table and tortured in various ways as efforts were made to extract a confession from him, was drawn entirely from the police interviews of Bottom and Smith. Those interviews, not admissible against Thorn, inculpated him in very serious offending.
As for the removal of Lyons from the property, his transportation to the bush location, the digging of a grave there, and the alleged murder of Lyons by Thorn, again, the prosecution narrative was based on admissions made by Bottom and Smith, so it was submitted.
Mr Anderson noted that there would be no direct evidence from any witness at the trial of Thorn having assaulted Lyons at the Nyerimilang property or being involved in transporting Lyons to Bruthen or being present there when he was shot. In those respects, he submitted, the case against Thorn would be entirely a circumstantial one. He did allegedly make an admission to his daughter Rusty Thorn (‘Rusty’) of having killed Lyons, but that would be strongly in dispute at the trial.
In respect of the events at Nyerimilang, Mr Anderson dealt in detail with the statements made by Bottom and Smith in their police interviews touching on the events. If there was a joint trial, there would be evidence before the jury, not admissible against Thorn, showing that Thorn:
tortured Lyons in a grave and utterly shocking manner, that he was the leader and the driver of that torture, that he encouraged other persons to torture the victim and that he yelled at those who sought to intervene on the victim’s behalf.[5]5
[5]Transcript 73.
He touched on evidence MacFarlane could give as to the bad character of Thorn. Such evidence would not be sought to be led by the Crown against Thorn, but might be elicited in a joint trial by Bottom or Smith in a character assassination of Thorn.
Mr Anderson submitted that it would be one thing to kidnap a person, bashing him in the process, but that if Thorn was considered to have taken the extreme steps attributed to him by Bottom and Smith in overseeing the torture of Lyons, the subsequent step of murdering Lyons would be an entirely logical one.
Mr Anderson submitted that the involvement of Thorn in the torture, as outlined by his co-offenders, would not only provide a strong motive for the murder, but would be highly prejudicial because it would establish Thorn as being at the top of the hierarchy of offenders.
Whilst the evidence would not be admissible against Thorn, Mr Anderson submitted that the prejudice flowing from the evidence to Thorn would not be capable of satisfactory amelioration by judicial directions. This would be so for a number of reasons, including the graphic and grave nature of the allegations and the fact that they would emanate from two sources, namely, Bottom and Smith, each of whom may, during the trial, be seeking to support the truthfulness of what they had told the police about Thorn’s conduct. The fact of the evidence having come from more than one source would make it very difficult for the jury to put the evidence out of their consideration in the case against Thorn, and in fact to do other than treat the evidence as truthful and cogent, no matter what directions they were given.
Whilst acknowledging the fundamental importance in our system of justice of the proposition that juries are presumed to be able to understand and follow directions of law, Mr Anderson pointed out that the authorities recognise that there will be occasions when a jury would be so severely tested by the requirement to obey directions there could be no confidence that justice would be done to an accused. This, he submitted, is such a case.
In the course of his submissions, Mr Anderson referred to and placed reliance upon R v Demirok,[6] Young & Ors v The Queen,[7] and DPP v Mwamba.[8]
[6][1976] VR 244 (‘Demirok’).
[7][2015] VSCA 265 (‘Young’).
[8][2015] VSCA 338 (‘Mwamba’).
In elaborating on the magnitude of the prejudice attaching to the out-of-court statements of the other accused about Thorn’s actions, Mr Anderson described the evidence as highly prejudicial because it would indicate that he tortured the very person the prosecution allege he killed. He submitted that ‘there wouldn’t be many cases of material which has more prejudicial effect’.[9]
[9]Transcript 81.
Part of the problem, he submitted, was that the admission of the accounts of the other accused of Thorn having tortured the complainant would bolster a ‘non-existent or weak case’ on the charge against Thorn of the common assault upon the deceased at Nyerimilang.[10] Furthermore, it would touch on an important aspect of the Crown’s circumstantial case on the murder charge.
[10]Charge 4.
In support of his description of the case against Thorn on the common assault charge, that is, his involvement in the torture of Lyons at the property as being ‘non-existent or weak’, Mr Anderson asserted that in paragraphs [88] to [93] of the Prosecution Summary, the Crown had ‘confected a narrative, cherry-picked from inadmissible statements against Mr Thorn’. Mr Anderson asked rhetorically, ‘How is it that a jury won’t fall into the trap of being influenced by inadmissible evidence where essentially the Crown’s fallen into that very trap?’[11]
[11]Transcript 83.
Turning to the other main aspect of his concern about the prejudicial effect of the out- of-court statements of the other two accused against Thorn, that is, the matter of Thorn’s alleged attendance at the murder scene and carrying out of the murder itself, Mr Anderson highlighted the way in which Bottom’s version came to light. He initially claimed personal responsibility for the shooting before later accusing Thorn of that act. He took the police to the location where the body was found, lending credibility to his account. He made clear his fear of Thorn. In his police interviews, Bottom’s anguish was clear. And his account was supported by Smith’s account. It would be extremely prejudicial against Thorn for him to be confronted in a trial with those accounts, which are entirely inadmissible against him.
Mr Anderson relied, also, on the fact that Bottom and Smith gave an explanation in their interviews for their mobile phones having been inactive for a number of hours on the night and morning of 2 and 3 December 2018, along with Thorn’s. They claimed to have been directed by Thorn to turn off their phones. Hence, there would be an inadmissible explanation in the evidence, as against Thorn, for the apparent fact of all three phones having been surprisingly inactive for a number of hours surrounding the time of the murder. It would be very difficult for the jury to put this evidence out of their minds when they come to assess the significance of the phone evidence as against Thorn. Mr Anderson went as far as to submit that if it was accepted by a jury that Thorn directed Bottom and Smith to turn off their phones, Thorn’s defence is ‘dead in the water’.[12]
[12]Ibid 96.
Mr Anderson noted the prosecution reliance on admissions allegedly made by Thorn to his daughter Rusty. He submitted that were the jury considering the case against Thorn to know that his two co-accused both claimed to the police that Thorn was responsible for the murder, there would be a real risk that their assessment of Rusty’s evidence would be influenced adversely to Thorn.
In addition to the above matters, Mr Anderson relied also upon the fact that each of Bottom and Smith made statements to the effect that Thorn is a person of bad character, violent and dangerous.
Mr Anderson submitted that were Thorn to be tried together with Bottom and Smith, there would be a substantial risk of unfair prejudice flowing to him which would not be capable of amelioration by judicial directions. The need for a fair trial would demand that a separate trial be granted to Thorn.
In support of the application, Mr Anderson made the submission that a trial of Thorn alone would be of modest duration. He further submitted that the joint trial of the other two accused would itself be substantially reduced in duration.
Prosecution submissions
The prosecution submissions on the separate trials application were contained in the written outline of submissions filed on behalf of the prosecution and the oral submissions of Mr Bourbon. In the written outline, the relevant principles of law were summarised by reference to the statutory provision and the decisions of Demirok, Webb v The Queen,[13] R v Gibb and McKenzie,[14] Jago v The District Court of New South Wales,[15] and Jarvie v The Magistrates’ Court of Victoria.[16]
[13](1994) 181 CLR 41.
[14][1983] 2 VR 155 (‘Gibb and McKenzie’).
[15](1989) 168 CLR 23.
[16][1995] 1 VR 84.
The prosecution submitted that each of the considerations referred to in Demirok at page 254 are relevant in this case. First, it was submitted that this case is a complex matter with voluminous materials. The ordering of separate trials would result in an even larger amount of court time being expended at great public expense. This factor, while not determinative, should carry greater weight now in these days of increased court backlogs due to the COVID-19 pandemic. Mr Bourbon challenged the defence estimate of the likely duration of a sole trial involving Thorn. He submitted that such a trial would likely take in excess of a month.
Secondly, it was submitted that the interests of justice would favour trying the three accused together to obviate the risk of inconsistent verdicts. If separate trials were ordered, each of the accused would be permitted to assert with impunity that one of the other accused was responsible for the commission of the offending. The authorities make it plain that it would be very desirable for such issues to be resolved by the same jury in one trial. Mr Bourbon submitted that the desirability of trying co-accused together is amplified in circumstances such as those in this case where co-accused will seek to attribute criminal responsibility for the offending to each other.

The prosecution did not accept that the evidence against Thorn in respect of the areas of dispute is as different from that available against the other two accused as maintained by the defence. In a number of areas, the evidence against all accused is similar.
Thirdly, it was submitted that the ordering of a separate trial for Thorn would delay the finalisation of the overall prosecution for a murder committed more than three years ago.
Fourthly, the ordering of a separate trial for Thorn would necessitate the calling of numerous witnesses to give evidence an additional time which is clearly undesirable.
The fact that a jury considering the case against Thorn would be faced with the inadmissible admissions of the other two accused is not a factor which, on its own, would warrant the ordering of a separate trial, it was submitted. The accused Thorn would need to establish not only that he would suffer substantial prejudice if tried with the others, but that the prejudice would be of a kind that is not amenable to nullification by judicial directions.
On the latter score, it was submitted that if Thorn is tried together with the other accused, the jury would be directed in clear terms and on numerous occasions throughout the trial that the case against each accused must be considered separately by the jury in light of the evidence admissible against each of them, and that nothing said by any accused to the police or any other person is admissible for or against any other accused. Mr Bourbon submitted that the contentions made on behalf of Thorn as to the difficulty a jury would have in adhering to judicial directions not to have regard to inadmissible evidence against Thorn underestimates the experience of courts in this and other states of Australia that juries are well capable of adhering to judicial directions and deciding cases on the basis of admissible evidence only. There would be no reason to doubt that a jury would follow the clear directions which would be given in this case.
Directions of that kind are routinely given in criminal trials and are very easy for a jury to understand. There would be nothing to suggest that a jury would disregard or fail to comply with such directions. After all, it is fundamental to the criminal justice system that juries are assumed and expected to faithfully and carefully adhere to the directions of law given by a trial judge.
Insofar as counsel for Thorn submitted that extreme prejudice would flow to Thorn from the statements made by the other accused about the alleged torture of the deceased at Nyerimilang because it would give rise to a strong motive in Thorn to kill him, the Crown made the point that such a strong motive would be able to be established against Thorn in any event by his admitted involvement in the kidnapping, assault and false imprisonment of the deceased.
As for the defence contention that the inadmissible statements by the co-accused would place Thorn at the top of the hierarchy of offenders, Mr Bourbon submitted that the admissible evidence in any event would place him at the top end of the hierarchy.
The Crown pointed to the strength of the prosecution case against Thorn as an important consideration in the application. This is not a case where it could be said inadmissible and prejudicial evidence may impermissibly bolster a weak prosecution case. The circumstantial case against Thorn would point strongly to his having been involved in the murder. In addition, he made admissions to his daughter of having killed the deceased. The case against him on the murder is far from weak.
Mr Bourbon took issue with the defence description of the case against Thorn on charge 4 as being non-existent or weak. He highlighted the admissible evidence pointing to Thorn’s guilt of that charge of having assaulted the deceased at Nyerimilang, including statements made by Thorn to the police and Kerry-Anne Whelan about the deceased having been tied to a massage table in the shed and beaten, statements attributed to Thorn by other witnesses made in the lead-up to and after the kidnapping of the deceased as to what would be done to him, and the incriminating conduct of Thorn in destroying the massage table. Mr Bourbon submitted that on all of the admissible evidence, a jury would be entitled to find that Thorn, who had been heavily involved in the offending against the deceased and had previously discussed bashing him and extracting a confession from him, was a party to the beating of the deceased at Nyerimilang.
As for the defence reliance on the prejudice that would flow to Thorn from statements by the other accused pointing to Thorn’s capacity to be violent, this would not be a matter which would justify the ordering of a separate trial. This is especially so because at this time, it is unclear what reliance, if any, Bottom and Smith would seek to place on the issue in a trial. If either of the co-accused may seek to rely upon the violent capacity of Thorn as explaining or justifying their conduct, that would weigh against the ordering of a separate trial. The uncertainty about the defence of the other accused illustrates the difficulty, referred to in both Demirok and Gibb and McKenzie, faced by a court in determining a separate trials application in advance of the trial. Whilst the application might be renewed at a later point once the trial has been commenced, as things currently stand, it would be premature to order a separate trial for Thorn based on this consideration.
Furthermore, it was submitted that any prejudice flowing to Thorn from the impugned passages in the interviews of Bottom and Smith would be amenable to being cured by judicial directions.
Mr Bourbon dealt with the defence criticism of the fact that the Prosecution Summary had set out a narrative reliant upon the statements of Bottom and Smith. He made the point that the summary was no more than that and that it had never been suggested that the out-of-court statement of co-accused would be admissible against Thorn. He noted, also, that it would not be incumbent on the Crown to prove the exact contents of a narrative against Thorn in any event, but rather, the elements of the offence being considered. He indicated that it would be made clear to the jury in the prosecution opening address that the jury’s decision as against any accused must be made on the basis of admissible evidence only.
In respect of some of the evidence pointing to the bad character of Thorn, the Crown would not be seeking to lead it and it may not end up seeing the light of day even if sought to be admitted by a co-accused as it is seemingly inadmissible, lacking relevance.
As to the things said by Bottom and Smith in their interviews pointing to the bad character or violent disposition of Thorn, this material, submitted Mr Bourbon, was not of the same order as the prejudicial material admitted into evidence in cases such as Gibb and McKenzie and R v Jones and Waghorn[17] which concerned the commission of very serious crimes and time spent in gaol for such crimes.
[17](1991) 55 A Crim R 159 (‘Jones and Waghorn’).
In respect of the admissions allegedly made by Thorn to his daughter Rusty, these would constitute powerful evidence pointing to Thorn’s guilt of murder, and would not be bolstered by the inadmissible statements made by the co-accused to the police.
As for the phone records evidence, Mr Bourbon submitted that the corresponding periods of inactivity on the phones of all three accused would be a powerful piece of circumstantial evidence against Thorn without any regard to the inadmissible claims of the co-accused that he told them to turn their phones off. Again, this would be a topic well suited to the giving of a direction to a jury.
Dealing with the decision in Demirok, Mr Bourbon noted that the wife in that case had not been charged with the murder, and that the Full Court had expressly stated that had she been so charged, along with her husband, it would not have found that a miscarriage of justice had occurred as the result of the holding of a joint trial.
Analysis
Bottom application for exclusion of evidence
Section 137 of the Evidence Act 2008 provides:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
As noted earlier, Mr Cronin does not challenge the relevance of the impugned evidence. Rather, he questions the extent of the probative value attaching to it, and submits this would be outweighed by the danger of unfair prejudice, due to the ‘significant repulsion’[18] a jury may feel about Bottom having made a threat to the life of his former domestic partner.
[18]Transcript 39.
I do not believe that the probative value of the evidence is as limited as was asserted by Mr Cronin. MacFarlane, having in her first statement to the police failed to disclose anything which would implicate Bottom in the crimes, in her second statement made a number of disclosures of observations by her which would be very damaging to Bottom and would strongly advance the contention that he was involved in the kidnapping and murder of the deceased. In that context, his alleged threat to her to, in effect, keep her mouth shut or he would kill her may be considered by a jury to be telling.
It would of course be a matter for the jury what to make of the evidence of the threat, assuming they are satisfied that the threat was in fact made. It would be open to the jury in my view to consider that the reason why Bottom uttered the threat was because he realised that MacFarlane possessed knowledge which would tend to implicate him in the offending, was concerned that because they were no longer together and had been in dispute, that she may reveal this knowledge, and wanted to prevent that from happening.
The threat has been included in a Crown incriminating conduct notice in respect of Bottom. Although this particular aspect has not yet been the subject of specific submissions or consideration by the Court, on the face of it the evidence would seem to satisfy the precondition for use as incriminating conduct.[19]
[19]Jury Directions Act s 20(1)(b).
As for the danger of unfair prejudice pointed to by the defence, I do not consider that this would outweigh the probative value of the evidence. It is true that the making of a threat to kill a domestic partner would be viewed by anyone as significantly poor behaviour, but the accused is charged with very serious criminal offending, in the context of which a threat even of this magnitude would not loom large. And the jury would well understand the limited way in which the threat is relied upon by the Crown, and that in no way should they hold against Bottom the fact that he may be the sort of person to utter such a threat.
I am not satisfied that it would be appropriate to exclude the evidence pursuant to s 137 of the Evidence Act 2008.
Thorn application for separate trial
If an indictment names more than one accused, a court may order that charges against a specified accused be tried separately.[20] Such an order may be made if the court considers that a trial with the co-accused would prejudice the fair trial of the accused.[21]
[20]Criminal Procedure Act 2009 (‘CPA’), s 193(2).
[21]CPA, s 193(3).
Not surprisingly, the parties were at one as to the applicable law in respect of the exercise of the discretion contained in s 193(3). This has been clearly set out in a number of Victorian appellate decisions over the years.
It has long been recognised that where two or more persons are charged with offences arising out of an incident in which it is alleged that they jointly participated, it is generally highly desirable that they be tried together.[22] In Demirok, the Full Court explained:
The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.[23]
[22]Young, [29].
[23]Demirok, 254.
The Full Court in Demirok went on to explain that there will nevertheless be cases where the application of the general principle favouring joint trials should not prevail:
Essentially, an accused man is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him is admissible evidence and that he is not exposed to prejudice by the introduction against him of material which is irrelevant or, in some situations, only marginally relevant. In very rare cases, of which we think this is one, although the trial has been correctly conducted, the result may nevertheless have been to expose the accused man to a conviction influenced by material which was both inadmissible and highly prejudicial. In such a situation, we think that it is not satisfactory to say that, the rules governing trials having been observed, there has been no miscarriage of justice. To do so is to elevate the rules above the end which they are designed to produce. The miscarriage lies in the fact that, despite the correct application of the various rules, the trial has not been of the kind which those rules are intended to produce.[24]
[24]Ibid 255-6.
Having considered authorities including Demirok, Gibb and McKenzie and Jones and Waghorn, the Court of Appeal in Young noted:
The above authorities demonstrate that the general rule in cases such as the present is that the accused should be tried jointly. It may be appropriate to depart from that rule if evidence admissible in respect of the trial of one accused but inadmissible against the other is unfairly prejudicial against the other in at least one of two senses. First, it may be that such evidence may create unacceptable collateral prejudice in the sense of establishing bad character or other prejudicial connotations that cannot be cured by judicial direction. On the other hand, it may be unfair in the sense that there is a real possibility that evidence which is powerful in the case in which it is admissible impermissibly bolsters what is otherwise a relatively weak case against another accused in which the same evidence is inadmissible and that this cannot be cured by judicial direction.[25]
[25]Young [37].
In refusing leave on grounds of appeal relating to the refusal of the trial judge to order separate trials, the Court in Young stated:
In our view, this was not a case which required separate trials. There were powerful considerations favouring a joint trial. The offending involved concerted action over an extended period of time in which each accused took interrelated but different parts. The Crown case in the first instance depended upon the credibility of Bond as a witness. He could not sensibly be required to give his evidence separately and repeatedly against each accused in separate trials. The Crown case also involved a complex matrix of circumstantial evidence. Inconsistencies in the positions of the different accused should in the interests of justice have been resolved by the same jury. The fact that there was some evidence which was inadmissible against individual applicants does not demonstrate of itself that separate trials should have been held. The evidence now relied on as generating unfair prejudice was limited in compass when the full force of the Crown case is considered. The case against each of the applicants was strong. The evidence objected to did not involve collateral prejudice. Insofar as it was potentially prejudicial it is complained of because it contained direct or implied admissions. We are not persuaded that his Honour’s directions were inadequate to enable the jury to deal with the evidence properly and in accordance with law. This is not a case where the jury were required to perform impossible mental feats. Accordingly, the proposed grounds of appeal with respect to separate trials should not be the subject of leave.[26]
[26]Ibid [62].
In Mwamba, the Court of Appeal spoke strongly of the experience of courts of the conduct of juries in criminal, and indeed, civil trials:
Our system of criminal justice must operate on the assumption that, as a general rule, juries will understand and follow directions given to them by trial judges. And the experience of the Court is that juries do adhere to directions to consider the cases of co-accused separately, and only in light of the evidence admissible in the case of each. Kaye J observed in Mokbel:[27]
[27]R v Mokbel (2009) 26 VR 618, 636–7 [86] (‘Mokbel’).
The weight given by the courts to the effect of judicial directions to juries has been based on a number of considerations. First, it is fundamental to our criminal justice system that we assume and expect that juries will faithfully and carefully adhere to directions given to them by the presiding trial judge. That assumption is the basic underpinning of each criminal trial before a jury. As McHugh J stated in Gilbert v R:[28]
The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge’s directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one— accused, trial judge or member of the public — could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.
And later his Honour observed:[29]
In addition, it has long been the experience of trial judges in this State, and in this country, that jurors in criminal (and indeed civil) trials are particularly astute and conscientious in adhering to directions given to them as to their role, and as to the principles which they are to apply in determining their verdicts. It is important not to overlook, nor to underestimate, the capacity of juries and the increasing sophistication of them. The recorded cases are replete with statements by judges reflecting the experience of the common law courts that juries have consistently, for many decades, been particularly rigorous in the performance of their judicial roles. …
It would be naive, however, blindly to assume that a jury’s decision-making will always be immune from improper prejudice, or that in every case improper prejudice will be capable of cure by judicial direction. In cases where the effective amelioration of prejudice cannot be achieved by direction, it will be proper to sever an indictment. But accepting that — even in cases involving the joint commission of offences — there will be cases in which it is appropriate to order separate trials of co-accused, for example, where the evidence admissible against each of the accused is impossible (or, at the least, extremely difficult) to disentangle, and where the evidence admissible against one accused is highly prejudicial to the other; and further acknowledging that there will be cases in which the attendant prejudice is such that it may cause a jury to disregard the directions of a trial judge, in our view this is not such a case. In joint trials of co- accused it frequently occurs that the admissions against interest of one — whether in or out of court — have the potential to prejudice the case of another or others. That fact alone can neither justify a separate trial, nor lead to the conclusion that a substantial miscarriage of justice has been occasioned by there having been a joint trial.[30] As we earlier observed, it is only where the relevant prejudice is incapable of effective nullification by direction that the conclusion might be reached that there has been a substantial miscarriage of justice.[31] In our view, the directions given in this case were well capable of ameliorating any prejudice flowing to the cases of Mbuyi, Pierre and Tshiswaka from a joint trial with Madjaga.[32]
[28](2000) 201 CLR 414, 425 [31].
[29]Mokbel (2009) 26 VR 618, 638 [90] (footnotes omitted).
[30]See, for example, Demirok; Collie; Webb; Gibb; R v Box and Martin [2001] QCA 272 (citations in original).
[31](citation omitted).
[32]Mwamba [44]-[45] (citations in original).

Having considered the submissions made in support of the application for a separate trial on behalf of the accused Thorn, and notwithstanding the strength of those submissions and the forceful and effective way in which they were advanced by Mr Anderson, I am not satisfied that this is a case in which it would be appropriate to depart from the general rule requiring co-accused charged with joint offending to be tried together.
The potential prejudice attaching to the out-of-court statements by Bottom and Smith implicating Thorn in the torture of the deceased at Nyerimilang and the subsequent murder of the deceased is obvious enough. That does not mean, however, that the joint trial of Thorn with the other accused would not be a fair one.
From the very outset of the trial, the jury would well understand that the statements made by Bottom and Smith to the police are admissible for or against the maker of the statements only, and can in no way be used against Thorn. That would be pointed out to the jury by the prosecutor in opening the case, and from an early stage and repeatedly in the trial, would be clearly explained to the jury by me. It is not a difficult concept for a jury to understand that the case against a particular accused is to be assessed only on the evidence admissible against that accused, and that out-of-court statements by other accused are in no way part of that material. In my view, juries are well able to accept that fairness and logic fully support and justify the proposition contained in judicial directions that statements made by one accused in a police interview cannot be used against any other accused.
This would not be a case in which the evidence admissible against Thorn would be impossible or difficult to disentangle from the overall evidence. The evidence admissible against Thorn would be easy to outline, and no doubt would be drawn into sharp focus as the trial proceeds. The concept that the statements of one accused are not admissible against another accused is a simple one. The directions of law on the matter would be clear. No impossible mental feat would be required of the jury in fairly considering the case against Thorn. It is a matter of whether in the circumstances of this case there would be any reason why the jury would be unable to give full and proper effect to the legal directions they would receive. In my view, there would be no such reason.
Insofar as Mr Anderson has described the prosecution case on charge 4 as non-existent or weak, I do not accept that contention, for the reasons advanced by the prosecution. Nor could the Crown case on the murder be described as weak or deficient. It could not be said, therefore, that this is a case in which powerful evidence admissible against one accused might impermissibly bolster a relatively weak case against another accused.
In respect of the lengthy passage from Mwamba set out above concerning the experience of this Court and other courts as to the willingness and ability of juries in criminal trials to follow judicial directions, I can only say, respectfully, that those sentiments accord entirely with my own experience. Time and again, juries show themselves to be assiduous and fair in their compliance with judicial directions, often in difficult circumstances. A preparedness to trust jurors to be true to their oath or affirmation is at the very heart of our system of justice and has been shown to be well warranted. I do not believe that the circumstances of this case would call into question the expectation that when armed with appropriate directions of law, the jury would decide the case against Thorn solely on the evidence admissible against him.
As for the evidence which might potentially point to the bad character or violent disposition of Thorn, it is unclear what evidence in this regard may in the end be before the jury, but in any event, even at its highest, it would be of a much lower order than the sort of material which was of concern in the reported decisions, and could be adequately dealt with by directions of law.
To my mind, there are very powerful reasons why Thorn should be tried together with Bottom and Smith. These do not need to be again spelt out, and are quite apparent from the authorities to which I have been referred.
In my view, it would not be appropriate to order that Thorn be tried separately from the other two accused.
Conclusion
In the case against Bottom, I decline to exclude the evidence of the alleged threat made to MacFarlane.
I refuse the application made on behalf of Thorn for a trial separate from the other accused.

[2022] VSC 401

14 July 2022