Feeney v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0096

JACKSON FEENEY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KYROU and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2022
DATE OF JUDGMENT:	16 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 113
JUDGMENT APPEALED FROM:	DPP v JF (Unreported, Supreme Court of Victoria, Hollingworth J, 11 March 2020) (Conviction)

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CRIMINAL LAW – Appeal – Murder – Joint trial of co-accused – Record of interview of co-accused implicating the applicant – Separate trial refused – Whether substantial miscarriage of justice resulting from joint trial – Leave to appeal refused.

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Counsel
Applicant:		Mr R Nathwani
Respondent:		Mr C Boyce QC
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
WALKER JA:

Introduction

An indictment filed in the Supreme Court charged the applicant, Jackson Feeney, and Jye Kenden (‘Kenden’), with the murder of John Bourke.
The applicant sought, but was denied, a separate trial. As a result, throughout February and March 2020 he and Kenden were jointly tried.
Upon arraignment, the applicant pleaded not guilty to murder, but guilty to manslaughter. His case was that he was involved in an assault on Mr Bourke, but did not intend to cause him really serious injury.
In the morning of 11 March 2020, after a trial occupying several weeks, the jury convicted the applicant of murder.[1] The jury concurrently acquitted Kenden of murder, but were unable to agree on the alternative of manslaughter. Significantly, the jury had that morning sent a note to the trial judge indicating that they had reached the verdict with respect to the applicant on the first day of deliberations. The note was in the following terms:
We believe we’ve reached a point where a decision on [Kenden] will not be possible. Our decision on [the applicant] was reached on the first day but we’ve spent nearly a week on [Kenden] and nothing has changed.
[1]On 15 June 2021, the trial judge sentenced the applicant to 14 years’ imprisonment, with a non-parole period of nine years.
Plainly, in finding the applicant guilty of murder, the jury must have rejected his claim that he did not intend to cause Mr Bourke really serious injury.
The applicant now seeks leave to appeal against his conviction on a single ground that contends that a substantial miscarriage of justice occurred because the trial judge rejected his application for a separate trial.
For the reasons that follow, we would refuse leave to appeal.

The circumstances of the killing

It is necessary to provide a brief overview of the circumstances of Mr Bourke’s killing as revealed by the evidence.
Mr Bourke suffered from brittle bone disease, osteogenesis imperfecta. As a result, he was more prone to broken bones and tissue damage than another without that condition. He used crutches and a mobility scooter to be mobile. Neither the applicant nor Kenden knew him.
On the night of Saturday, 14 July 2018, the applicant and Kenden attended a party hosted by ‘ALO’ at premises situated a few doors away from Mr Bourke’s house. They drank alcohol before and throughout the party, which started around 7.30 pm. Although the precise amount that they drank is unknown, many witnesses described the applicant as being very drunk. In the early hours of the next day, Sunday, 15 July 2018, they entered Mr Bourke’s Maryborough home and attacked him. Mr Bourke subsequently died from injuries inflicted upon him. At the time of the attack, the applicant was aged 15 years, and Kenden was 17.
The impetus for the attack appears to have been the following. A few months prior to the attack on Mr Bourke, one of the applicant’s close female friends, ‘HM’, had told him that she had been sexually assaulted by her father, who, coincidentally, lived on the same street as Mr Bourke. Witnesses described the applicant on the night of the party as being emotional about HM’s complaint and also about unrelated sexual assault allegations made against him by a girl, ‘KW’. At some stage in the early hours of the Sunday morning, the applicant decided to go and confront HM’s father. Kenden agreed to go with him. They both left ALO’s premises in order to do so. Tragically for Mr Bourke, the two of them went to the wrong house.
The evidence established that, having left the party, the applicant and Kenden walked the short distance down the road to Mr Bourke’s house. The applicant went to the back door and tried unsuccessfully to kick it in. He and Kenden then went to the front of the house, and forced entry through the security and front doors.
Mr Bourke had come to the front door, using a crutch to stand. The applicant and Kenden then attacked Mr Bourke, who fell to the floor, his body lying within the front entrance. They entered the house and continued to assault him. The applicant kicked and punched Mr Bourke, stomping on, and kicking, his head. Kenden punched Mr Bourke to the head, and stomped several times on his legs. Kenden told police that at some point he tried to stop the applicant continuing to assault Mr Bourke, but the applicant kept going.
Mr Bourke suffered multiple injuries in the attack, which in the aftermath left him dead or seriously injured. Ultimately, he died from craniofacial injuries, caused by blunt force trauma to his head and face. His injuries included subdural and subarachnoid haemorrhages; serious fractures of the facial bones, including nasal and cheekbones; fractured jawbone and right eye socket; multiple bruises and lacerations to the face and head; lacerations to the tongue; and bruising to the chest wall. Mr Bourke’s body was discovered later on the Sunday morning, when one of his neighbours went to investigate why the front door was open, and the porch light was still on.
After the applicant returned to the party, he and Kenden spoke with several people. The applicant variously said that he had bashed or hurt someone; that he thought the person was dead; and that he had been in a fight with HM’s father. Thus, for example, he told ‘DM-W’, ‘I think the dude [is] dead’, and ‘TW’, ‘[TW], I think I hurt someone’.
Having spent the rest of the night at a friend’s house, the applicant and Kenden were picked up the next morning and driven down the street where the party had been held. Kenden was overheard saying to the applicant, ‘We got the wrong house’.
The applicant was arrested on the Sunday evening and taken to the Maryborough Police Station for interview. He admitted walking to HM’s father’s house. The applicant told police that he intended to speak with HM’s father about the sexual assault allegations, and possibly to bash him. He remembered kicking a man a couple of times, possibly to the right jaw and cheekbone; a flashback of a man’s face with blood on it; and running out the front door to return to the party. The applicant believed that he had assaulted HM’s father. He said he thought that he had bashed him, but did not know the man was dead. Among other things, the record of interview included the following:[2]
[2]Emphasis added.
Q 154 … What relationship is [HM] to you?
A       Just a good friend.
Q 155 Sorry?
A       Just a good friend.
Q 156 Yeah. You were obviously upset by what [HM] had told you.
A       Yeah.
Q 157 Did she tell you that – what her dad had done to her?
A       Yeah.
Q 158 O.K. So what were you gunna speak to her dad about?
A       That.
Q 159 And what were you gunna achieve by talking to him. What did you wanna achieve?
A       Nothing. Just talk to him.
Q 160 Were you angry with him?
A       Yeah. I was drinking.
Q 161 Yeah. So what happened then?
A       I don’t remember.
Q 162 O.K.
A       I don’t remember.
Q 163 Is [Kenden] with ya?
A       Not at that stage.
Q 164 All right. So what happened next?
A       I dunno.
Q 165 Well, when’s the next thing you remember [Kenden] being with you?
A       Honestly, this morning.
Q 166 Yeah, O.K., all right. So then last night you say you have – when do you have this flashback you talk about?
A       I dunno, I just remember him laying on the ground, that’s all.
Q 167 And who is it?
A       I dunno.
Q 168 Well, who did you think it was?
A       [HM’s] dad.
Q 169 O.K. So that’s what you wanted to do to [HM’s] dad?
A       No. I didn’t wanna kill him, no.
Q 170 What did you wanna do?
A       I was probably just gunna bash him.
Q 171 Mm.
A       That wasn’t meant to happen.
Q 172 What wasn’t meant to happen?
A       Whatever has happened.
Q 173 All right. So you say you kicked him a couple of times, this bloke?
A       Yeah. That’s all I remember.
Q 174 O.K. When you kick him, has he got blood on his face already?
A       Yeah. A bit.
Q 175 And where did you kick him?
A       Around here.
Q 176 You’re just indicating to your right jaw or cheekbone. Is that right?
A       (NO AUDIBLE REPLY)
Q 177 Eh?
A       Yeah.
Q 178 But he already had blood on him, did he?
A       Yeah.
Q 179 O.K. So and you don’t recall how you got there?
A       No.
Q 180 You don’t recall if you entered the right house?
A       (NO AUDIBLE REPLY)
Q 181 At the – on the night I’m talking about, I’m not talking about in the morning.
A       No. I don’t remember nothin’, no.

Application for a separate trial refused

Pre-trial, counsel for the applicant filed written submissions in support of an application for a separate trial, relying principally on seven matters:
9. First, both [the applicant] and [Kenden] both [sic] participated in [records of interview] where both made admissions to committing some type of assault upon the deceased.
10. Second, those [records of interview] are admissible only in the trial of the particular accused (unless a co-accused adopts the entirety of the [record of interview] of a co-accused).
11. Third, in [Kenden’s record of interview] there is highly prejudicial material that is adverse to the interests of [the applicant] that would not be material placed before the jury if [the applicant] were tried alone.
12. Because throughout [Kenden’s record of interview] there is an attempt to enlarge the role of [the applicant] and to downplay the actions of [Kenden] as well as making claims that [the applicant] had made admissions to him. …
13. Fourth, there is a real and serious risk that this will unfairly infect the trial of [the applicant].
14.Fifth, any curative judicial directions on separate consideration – and that the [record of interview] that [Kenden] participated in is not in any way evidence against [the applicant] – is unlikely to be a sufficient prophylactic against impermissible reasoning by the jury.
15. Sixth, this is particularly so in circumstances where [the applicant] is likely to plead guilty to manslaughter in the presence of the jury and where it is expected – given the defence response of [Kenden] – that he will plead not guilty to both murder and manslaughter.
16. Finally, in an attempt to gain a forensic advantage in [Kenden’s] own trial he may well adopt the contents of the [record of interview] conducted with [the applicant]. If that occurs it is hard to see how any separate consideration could work at all to ensure a fair trial for [the applicant] when his co-accused relies on both his own and [the applicant’s record of interview].
At a directions hearing on 6 December 2019, the trial judge refused the application for a separate trial. Although she did not deliver a formal ruling, the gist of the judge’s reasoning may be gleaned from the following exchange:
HER HONOUR: … I’ve seen the outline of your submissions in relation to severance. It seemed to me that was something that needed clarifying because I must say I assumed it was some complicity basis but it wasn’t actually spelt out.
[APPLICANT’S COUNSEL]: It’s helpful to have that clarification, we’re grateful for it. I understand exactly Your Honour has done that given the argument. The argument is maintained. I don’t think it will take very long to litigate at all. It’s as straightforward as we foreshadowed previously. Just to assist with the typed document, because I know you’re likely to come onto the other issues, but we’ve had a discussion and I hope I don’t speak out of turn that there’s a few legal issues, severance is one, admissibility of two of the witnesses, three major issues that we think could be dealt with in one day.
HER HONOUR: The complicity though is being dealt with today. That was what the direction was for. I propose to make the decision – sorry, the severance issue, I’m going to make a decision on today, that’s why I wanted submissions.
[APPLICANT’S COUNSEL]: Sorry, I reread the transcript yesterday and it didn’t come across as such. I understood Your Honour saying to be making directions in relation to – it doesn’t matter, we can deal with it.
HER HONOUR: But in any event, what more is there to be said?
[APPLICANT’S COUNSEL]: No, I agree.
HER HONOUR: I understand you’re formally making it but I don’t see how there’s going to be severance particular with complicity.
[APPLICANT’S COUNSEL]: I understand.
HER HONOUR: If you want, if you’ve come here not ready to argue it and you want to think about it more and argue it next time, you can do that, but at the moment, I’ll be perfectly frank, I don’t see any basis for severance.
[APPLICANT’S COUNSEL]: As I’ve said, it’s a straightforward argument. It’s a matter of discretion for this court given this arguments [sic]. We understand that we say it should be severed. The Crown say, understandably, judicial direction can cure, it’s a matter for Your Honour.
HER HONOUR: Yes.
[APPLICANT’S COUNSEL]: It’s not going to get better than that.
HER HONOUR: And the fact of the matter is that I certainly understand why your client wants to make the application. But this is a problem that arises frequently with co-accused. It’s a problem that the courts recognise can in most cases be dealt with by appropriate directions. They’ll need to be strong directions. I’ll speak to you in due course about the content, et cetera.
[APPLICANT’S COUNSEL]: Of course.
HER HONOUR: But I feel comfortable about that.
[APPLICANT’S COUNSEL]: I understand that. Can I just make clear, because I understand what your decision is of course. If matters change during the trial, it may be that we seek to renew but Your Honour understands that.
HER HONOUR: Absolutely. As you know with severance, things can change.
[APPLICANT’S COUNSEL]: Of course.
HER HONOUR: And so I’m not meaning to ambush you if you – if there’s things you want to say, I’ll hear further from you but at the moment, they’re continuing on together.
[APPLICANT’S COUNSEL]: All right, thank you.

Kenden’s record of interview

It is necessary to turn to Kenden’s record of interview, which formed the basis of the application for a separate trial, and is pivotal to the application in this Court.
Police interviewed Kenden on 15 July 2018 in the presence of his mother, first, between 10.23 pm and 10.56 pm, and, secondly, between 11.50 pm and 12.19 am the following morning. Throughout the interview he referred to the applicant as ‘Jack’ or ‘Jacko’. Kenden told police that, after going to Mr Bourke’s residence, he gave Mr Bourke ‘a couple’ and stomped on his legs. He said that the applicant ‘gave him a couple’ and started stomping on Mr Bourke. Kenden said he had to pull the applicant away, but he ‘just wouldn’t stop’ and ‘kept going back for more’. He also told police that on one occasion after the applicant had returned to the party from Mr Bourke’s residence, he told Kenden, ‘I just gave it to him some more’.
Salient parts of the interview included the following:[3]
[3]Emphasis added.
Q 68 O.K. And what happened?
A I don’t know, Jack went off – left for a bit, and then we went looking for him and then we came back and he was at the party.
Q 69 Yep.
A And then he was back at that house down the road, and he was fuckin’, like, calling him a peado and that .......... then, yeah, he gave him a couple and then I gave him a couple too, and then – yeah, I don’t know, he started stomping him and then I threw him down the stairs, like, Jacko. I said, ‘All right, stop, bro, come on,’ and then he just wouldn’t stop, and then I left and then he just kept going back to the house for more.
Q 70 Who’s that?
A Jacko.
Q 71 Where did you go?
A Back to the party, which was, like, two houses up.
Q 72 O.K., all right. So you – where did you – where did the fight start?
A On his balcony.
Q 73 When you say balcony, front or back?
A On his front one.
Q 74 O.K. So how did he come to be out the front?
A I think – ‘cause Jacko’s like, ‘This is the house,’ whatever. I didn’t even know what he was doing there. I was just standing out the front, like, on his lawn and he was like, ‘Hey, what are ya doing?’ I said, ‘I’m just standing here, like, what are you doing?’ And he’s like, ‘No, you’re fuckin’ not, you’re doing more than standing there.’ I was like, ‘What the fuck?’ And then Jacko come round the side and then that’s when it started.
Q 75 Yeah. And what happened?
A He – like, Jacko went up the stairs at him and then, fuckin’ – yeah, he’s, like, saying shit and that, I don’t know, a few words got said and that, and then I was, like, standing down on the grass, and they were up on the balcony, and then Jacko, like, hit him, and I went up the stairs and then he, like, went back inside his house and, like, I hit him once in the head on the ground with my fist, and then I was – like, I’m pretty sure I stomped his legs a couple of times, but then I – like, he was saying, like ‘Stop it,’ and that, ‘Stop it, stop it,’ so I pulled Jacko out of the house and pulled him down the stairs and said, ‘Bro, we fuckin’ – we’ve gotta stop, man,’ and then he just kept going back for more.
Q 76 Yep.
A Yep.
Q 77 And were you there when he just kept going back for more?
A Nuh, ‘cause I just didn’t wanna do it any more.
…
Q 191 Was he – was he drinking more than you or just was drunk?
A Well – well, we had the – we should’ve had the same amount of beers but I couldn’t tell ya if he had more than me or not?
Q 192 Yeah, right, O.K. And what was he going off about?
A I don’t know, he was calling him a paedophile but - - -
Q 193 This bloke?
A Yep.
Q 194 Right. Was he – so how did it come about that you left the party?
A ‘Cause it’s, like, only two houses down and I could hear Jacko going off out the front, so I, like, walked out there.
Q 195 So Jacko had left the party before you?
A Yeah.
Q 196 Right, O.K. So you could hear it from the party?
A Yeah.
Q 197 What happened then?
A I just walked – walked out and he’s like, ‘Come on, bro .......... then he was like – Jacko and that were, like, around the side of the house, I don’t know what he was doing, and I was just standing on the lawn, and then that guy’s like, ‘Hey, what are you doing?’ I was like, ‘Nuh, just standing here,’ and he’s like, ‘Nuh, you’re doing fuckin’ more than that.’ I was like, ‘Whatever,’ and then Jacko come back around the side of the house and that, went up the stairs and shit, that’s when it all started, yeah.
Q 198 Was he on crutches or anything like that?
A He had – I think he did have one crutch.
Q 199 Yeah.
A Yep.
Q 200 And what happened then?
A Jacko just hit him.
Q 201 Yep.
A Like, I run up the stairs and that and grabbed him, and then he, like, when back inside his house, he was on the ground, and I hit him once while he was standing up and then he was on the ground. I hit him again and then at first I stomped him and that, and then I just stomped on his legs and he’s like, ‘Stop, stop, stop, stop, stop,’ so I pulled Jacko, whatever, I was like, ‘Well, we better fuckin’ stop.’
Q 202 So is this inside of the house, this is occurring?
A Just – yeah, just inside the door.
Q 203 Yep. And was the door open, closed?
A No, it was open, and then he was, like, trying to push it shut and then Jack opened it and shit.
Q 204 Yeah. What happened then?
A He just kept stomping him. I was like, ‘Whatever, cunt, I’m leaving him’.
Q 205 Yep.
A And then he’d come back probably a couple of minutes after that and then he just kept going back, he probably done it, like, twice or three times maybe, went back to that joint.
Q 206 How do you know he went back to that joint?
A ‘Cause he told me when he come back to the party. He’s like - - -
Q 207 Sorry?
AHe told me when he come back to the party, and he went there, like, two or three times.
Q 208 And what did he do?
A I don’t know exactly what he done, but I’d say - - -
Q 209 Did he tell you what he did?
A Well, the first time when he come back, he said, ‘I just gave it to him some more.’

Q 210 Yep.
A Just, like, ‘All right,’ I said, ‘Just stop going back there.’ But he just kept saying, ‘He’s a fuckin’ paedo, but’ – just, whatever, like - - -

Q 211 Yep.
A Mm.
Q 212 What happened then?
A Not much, we just – I just went back to [TLM’s] and went to sleep.

Q 213 Mm. Did you tell anyone at the party that you did this?
A       I didn’t.
Q 214 Did Jacko?
A       I don’t know, he might’ve. It was pretty loose.
Q 215 Mm. So how many times do you reckon you hit him?
A       Altogether, I reckon about five.
Q 216 How many times did you hit him with your fists?
A       Like, twice.
Q 217 How many times did you stomp him?
A       Around about three – three or four times.
Q 218 So why would you stomp his legs?
A I don’t know, I didn’t really wanna fuckin’ hurt his head that much, I didn’t wanna fuckin’ kill him.
Q 219 Could it be that you were stomping his legs ‘cause Jacko was stomping his head - - -
A Nuh.

Q 220 - - - at the same time?
A Nuh.
Q 221 How did he end up on the ground?
A I think he just got pushed over.
Q 222 Mm.
A Or knocked over, I’m not sure.
…
Q 265 When you pulled Jacko off and said, ‘That’s enough - - -’
A I – I threw him down the stairs too, Jacko.
Q 266 Yeah, what happened there?
A Well, he half tried to fight me - - -
Q 267 Yeah.
A - - - going, ‘He’s a fucking though,’ and that, I said, ‘Well, fuckin’ whatever, man.’
Q 268 So what happened there?
A I just walked back to the party.
Q 269 And what did Jacko do?
A Sam – I’m pretty sure someone was trying to stop him and stuff, but he was walking back with me, probably ‘cause I was pushing him. I’m pretty sure someone was trying to hold him out the front of the party and then he just kept running back there.
Q 270 Right. So when you left, as far you’re aware, he was still alive?
A Yeah, he was still talking when I left.
Q 271 What was he saying?
A He was just like, ‘Stop, stop,’ and that, ‘Stop.’
Q 272 Was he in a lot of pain?
A Yeah, I think so.
Q 273 Yeah. And where was he when you left him?
A He was, like, over this way a bit more.
Q 274 What do you mean ‘over this way’?
A Like, so here’s the door, you’re going straight in - - -
Q 275 Yep.
A - - - he’s, like, a bit more over to the left.
Q 276 Was he in the hallway?
A Yeah, a bit. Like – there was, like – I’m pretty sure there was, like, a door there and another door there. He was, like, straight in over that way a bit.

The submissions in this Court

The applicant’s counsel drew attention to aspects of Kenden’s record of interview – many of which are set out above – which, he submitted, were unfairly prejudicial to the applicant. Counsel contended that the unfairness occasioned to the applicant by a joint trial could not be ameliorated effectively by judicial directions. And he contended that, despite the judge’s repeated admonitions not to have regard to the contents of Kenden’s record of interview when determining the case against the applicant, a question asked by the jury during deliberations demonstrates that they must impermissibly have used Kenden’s record of interview when considering the case for murder against the applicant. He relied upon the fact that, on 6 December 2020, the third day of deliberations (they had retired on 4 December 2020) the jury asked the following question:
If [Kenden] withdrew from the agreement, arrangement or understanding, and did everything he could to stop the other accused from causing the fatal acts but was unsuccessful whilst still present at the scene of the crime while the attempts were made to stop the accused, is that still withdrawal?
Resisting the grant of leave to appeal, counsel for the respondent submitted that separate trials ought not be granted simply because one accused apportions blame to another. It is against the interests of justice that there should be inconsistent verdicts. Counsel submitted that the jury were repeatedly directed (or reminded) of the importance of giving separate consideration to the evidence admissible solely against each accused, and that it was impermissible to use what the two accused said in their respective records of interview against each other. It must be assumed that the jury acted upon these instructions.[4]
[4]Counsel cited Abukar v The Queen [2021] VSCA 238, [126] (Kyrou, McLeish and Emerton JJA).
Moreover, the respondent’s counsel submitted that, putting to one side the contents of Kenden’s record of interview, there was ample evidence upon which the jury were entitled to find the charge of murder proven against the applicant (including the answers he gave to police in his own record of interview). Counsel for the respondent submitted that, contrary to what was advanced on behalf of the applicant, the question asked by the jury does not suggest that they used Kenden’s interview against the applicant in an impermissible manner. As to that, it ought be remembered that the applicant had pleaded guilty to manslaughter, thereby admitting that he had consciously, voluntarily and deliberately performed an act (or acts) that caused Mr Bourke’s death. The only live issue in the trial was whether, when he performed that act (or those acts), the applicant had an intention to cause Mr Bourke really serious bodily injury.

Discussion

Although the applicant’s sole ground of appeal asserts that a substantial miscarriage of justice occurred because the trial judge ‘rejected [his] application for a separate trial from his co-accused’, counsel for the applicant made it clear in oral argument that no criticism was made of the manner in which the trial judge exercised her discretion based on the material then before her. Rather, counsel for the applicant contended that the record of the trial now demonstrates that a substantial miscarriage of justice resulted from a joint trial. As counsel put it, the allegations against the applicant in Kenden’s record of interview ‘coloured the factual matrix’.
Various provisions of the Criminal Procedure Act 2009 (‘CPA’) govern the joinder and severance of charges in an indictment, and orders for separate trials of co-accused. Relevantly, s 170(2) of the CPA provides that, if an indictment names more than one accused, ‘the charge or charges against all accused must be tried together unless an order is made under section 193’.[5] By virtue of ss 193(2) and (3) of the CPA, a trial judge may order that an accused, charged on the same indictment with another, be tried separately if the court considers that ‘a trial with the co-accused would prejudice the fair trial of the accused’ or ‘for any other reason it is appropriate to do so’. For a trial judge to exercise his or her discretion to order a separate trial, however, not only must there be substantial prejudice to an accused arising from a joint trial, but the prejudice must be of a kind not really amenable to nullification by judicial direction.[6]
[5]See also R v Grondkowski & Malinowski [1946] KB 369; R v Demirok [1976] VR 244 (‘Demirok’); R v Torney (1983) 8 A Crim R 437; Collie v The Queen (1991) 56 SASR 302 (‘Collie’); Webb v The Queen (1994) 181 CLR 41, 88–9 (Toohey J); R v Alexander and McKenzie (2002) 6 VR 53, 67 [31] (Winneke P); R v Ferguson (2009) 24 VR 531, 587 [310] (Maxwell P, Buchanan and Weinberg JJA) (‘Ferguson’).
[6]R v Jones & Waghorn (1991) 55 A Crim R 159, 164 (Crockett J) (‘Jones and Waghorn’); Ferguson, 587 [310] (Maxwell P, Buchanan and Weinberg JJA); Samuels-Orunmwense v The Queen [2015] VSCA 152, [22] (Priest JA). See also R v Gibb & McKenzie [1983] 2 VR 155 (Young CJ, Crockett and King JJ) (‘Gibb and McKenzie’); R v Ditroia & Tucci [1981] VR 247.
In this State, the matters of public interest to be considered in all such cases are undoubted, and were spelled out in Demirok:[7]
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.
[7]Demirok, 254 (Young CJ, Lush and Crockett JJ). See also Collie, 308–10 (King CJ). Compare Western Australia v Bowen (2006) 32 WAR 81, 90–1 [25]–[32] (Pullin JA), which was concerned with s 133 of the Criminal Procedure Act 2004 (WA), a provision which, although not identical, bears some similarities to s 193 of the CPA. And see Western Australia v Blurton [2019] WASC 324 [19]–[28] (esp [27]), [45]–[51] (Vaughan J).
When she declined to order separate trials, the trial judge did so on the basis of the depositions and summary of prosecution opening, and without being able to predict with absolute precision the course that the trial would take. This Court views the matter, however, through the lens provided by the record of the completed trial. Having scrutinised the record of the trial, intervention is warranted only if the applicant satisfies the Court that due to an error or irregularity in or in relation to the trial, or for any other reason, there has been a substantial miscarriage of justice.[8] Once more, guidance may be derived from Demirok:[9]
When the judge’s exercise of his discretion comes to be challenged in an appellate court, the trial has been completed and the appellate court has the advantage of knowing how in the end it was conducted. This circumstance means that any review of the judge’s discretion has unusual qualities. If it can be shown that the judge made an error in the exercise of his discretion the appellate court will nevertheless not put the judge’s decision aside and substitute a different view of its own unless, in the event, it considers that the course of the trial constituted a miscarriage of justice. Conversely, if the decision of the trial judge was made on correct grounds and was in itself a decision which the appeal court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. In the latter case, the ground of appeal taken no doubt should not be the ground that the trial judge’s discretion miscarried, but simply that because of the course of events which developed during the trial, the nature of the trial constituted such a miscarriage.
[8]CPA, s 276(1)(b)-(c).
[9]Demirok, 251 (Young CJ, Lush and Crockett JJ) (emphasis added). See also Collie, 310 (King CJ).
The principles to be drawn from Demirok were applied in Gibb and McKenzie, a case referred to by both parties. In that case, the two applicants and another man, Christopher Claridge, were tried for the shooting murder of one Stephen Haines. The prosecution alleged that the fatal shot was fired by Gibb whilst McKenzie and Claridge were present, the asserted motive for the killing being a belief that Haines had done (or would do) ‘a deal’ with the police to inform on the applicants with respect to criminal activity. Gibb’s defence was that he was not present at the scene of the killing. He made an unsworn statement from the dock[10] and he called a witness, Yvonne Kemp, to prove his alibi. Both McKenzie and Claridge admitted being present when Haines was shot, their defence being that they were acting under the duress of Gibb.
[10]See fn 13 below.
In records of interview with police, both McKenzie and Claridge implicated Gibb as the principal offender, and they confirmed the truth of those records of interview in unsworn statements from the dock. Moreover, through cross-examination of prosecution witnesses and in their statements from the dock, each conveyed to the jury that Gibb was a person with a violent disposition, and elicited other damaging and prejudicial material against Gibb, which the prosecution would not have been permitted to introduce. In the result, the jury convicted both Gibb and McKenzie of murder, but acquitted Claridge.
On appeal, Gibb relied on seven reasons for saying that there should have been separate trials, or that, notwithstanding the proper conduct of the trial, because of the course of events at the trial there had been a miscarriage of justice. It is unnecessary to repeat them, save to observe that those seven factors included that McKenzie’s and Claridge’s records of interview were inadmissible against Gibb, but included material that supported the credibility of crucial prosecution witnesses against him, whose evidence otherwise required corroboration. Moreover, their records of interview and statements from the dock contained material not only directly implicating Gibb in the murder, but also suggesting that he was a person of bad character. As the Court said, ‘the main thrust of [Gibb’s] argument in support of the application of the principles in Demirok’s Case lay in the fact that a large amount of material which was highly prejudicial to Gibb and which would not have been admissible if Gibb had been tried separately had been placed before the jury’.[11]
[11]Gibb and McKenzie, 162 (Young CJ, Crockett and King JJ).
Ultimately, the Full Court quashed Gibb’s conviction for murder, observing that ‘the combination of circumstances was most unusual’, including that evidence highly prejudicial to Gibb – prejudicial in a way ‘that would not have been possible if he had been tried separately’ – had been introduced. The Court said:[12]
Whilst none of the matters to which we have referred might standing alone necessarily be regarded as producing the result that there was a miscarriage of justice, we have come to the conclusion after prolonged consideration that a combination of all of them means that there was. It was probably not possible to determine in advance that a joint trial would or might have that effect, for it depended to a considerable degree on the course of the trial, the defences taken and the courses taken by the various accused. As in Demirok’s Case, so in this case we do not think that the learned trial Judge made any error in refusing the application for separate trials. But the course the trial took and in particular the evidence to which we have referred was so prejudicial to Gibb, and prejudicial to him in a way that would not have been possible if he had been tried separately, that we are called upon to weigh that prejudice against the matters of public interest referred in to R v Demirok, [1976] VR 244, at p 254. The length of the trial has underlined the significance of those matters. If ever the power referred to in that case is to be exercised this seems to be the occasion for it. The combination of circumstances was most unusual but in the balance between the public interest and a fair trial for Gibb we think that the scales come down in favour of Gibb.
[12]Ibid 166 (emphasis added).
Jones and Waghorn was another case in which both applicants had been jointly tried for murder. The deceased, a man by the name of John Turner, died after being repeatedly stabbed. Jones made a number of unsworn statements implicating Waghorn in Turner’s killing, those statements being inadmissible against Waghorn.
The prosecution alleged at trial that, after a dispute between Jones and Turner, with respect to heroin that Turner had supplied, Jones attacked Turner, punching him to the head and body. When Turner fought back, Jones struck him with a clothes iron, sending him to the ground. It was alleged that, whilst Turner was on the ground, Waghorn attacked him with a kitchen knife. Jones then joined in the attack with another kitchen knife. They continued the attack until Turner died, subsequently burying his body in the backyard of the premises where the killing took place. The prosecution case was that Turner died from the combined effect of some 38 wounds inflicted by the applicants, but was unable to prove that any particular wound caused death, or that either applicant had struck a fatal blow. At trial, the prosecution argued that both applicants ought to be convicted on the basis that they acted in concert, or that one or other or both of them struck the fatal blow or blows when each was aiding and abetting the other.
About a week and a half after the killing, Jones made a statement to police in which he alleged that Waghorn had confessed to him that he and a man called Ashman had killed Turner. Acting on that statement, police exhumed Turner’s body. Waghorn was then arrested and charged with the murder. A few days later, Jones made another statement to police giving further details of the alleged confession made to him by Waghorn, and further implicating Ashman in the killing. Shortly after the completion of this second statement, Jones admitted his role in the killing, and said Ashman was not present. Jones made full admissions in a videotaped record of interview. Waghorn made various statements to police denying any knowledge or involvement in the killing of Turner.
At trial, Jones gave unsworn evidence,[13] whilst Waghorn stood mute. Neither called evidence. The principal issue in the case against Jones was whether the wounds were a cause of the death or whether morphine Turner had ingested had killed him. Waghorn maintained that he was not involved in any attack, his counsel advancing the theory that someone else in a drug milieu had attacked Turner, thereafter attempting to set Waghorn up by leaving physical evidence. The principal issues in the case against Waghorn were causation and whether he was involved in the attack. Jones’ out of court statements to police, his record of interview and his unsworn evidence in court, were all inadmissible against Waghorn.
[13]Prior to 1 July 1986, an accused person had the right to make an unsworn statement from the dock. That right was abolished by the Crimes (Amendment) Act 1986, which permitted an accused person instead to give unsworn evidence. The right to give unsworn evidence was itself abolished by the Evidence (Unsworn Evidence) Act 1993, which commenced on 11 May 1993.
Importantly, Lynette Maloney, an occupant of the premises where the killing took place, who was in her bedroom throughout, gave evidence on oath. It seems that in the course of the attack on Turner the knives being employed bent or broke. Maloney’s evidence was that either Jones or Waghorn came to the door of her bedroom to ask Maloney for the small pocket knife she possessed. She did not open the bedroom door and refused to supply the knife to assist in the killing of ‘me mate’. Maloney could hear the screams of Turner during the attack, who called out to her by her nickname, and pleaded for his life. The attack continued for a considerable time. When the noise ceased the body of Turner was enclosed in two garbage bags and it was carried into the bedroom occupied by Maloney.
The evidence on oath of Maloney was critical in placing Waghorn at all material times at the scene, and making incriminating statements during a struggle in which the deceased was killed and after which she saw Waghorn with blood on his clothes. In the light of Waghorn’s denial that he was present at the scene, the acceptance by the jury of Maloney’s evidence that he was at the scene would be likely to have spelt his conviction. At trial, Maloney’s credit was attacked, and it was put that she was not a witness of reliability or credibility. She had many convictions; was a drug addict; was an intimate friend of the deceased; and had spent the day in question shoplifting. Thus, had her evidence stood alone against Waghorn, it would not have been surprising had the acceptance of her word remained a matter of reasonable doubt.[14]
[14]Jones and Waghorn, 166 (Murphy J).

As we have mentioned, however, in several out-of-court statements in writing, Jones accused Waghorn of being the instigator of the killing, who encouraged Jones to help him in the stabbing, and who buried the body in lime in his own backyard, and disposed of his blood-spattered clothing at the tip. Jones’ out-of-court statements confirmed Maloney’s account of the circumstances of the killing, and, since he implicated himself – together with Waghorn – in his third statement, it was unlikely that it was untrue, for he was admitting to a murder committed with Waghorn.
Crucially, Jones’ out of court statements to police, his record of interview and his unsworn evidence in court, were, as we have said, all inadmissible against Waghorn. Notwithstanding that this was so, and notwithstanding warnings by the trial judge, the jury might have seen them as bolstering Maloney’s credit.
In separate judgments, all members of the Court were of the view that Waghorn’s conviction for murder should be set aside. After a review of authority, Crockett J adverted to the difficulty of giving a direction to the jury sufficient to nullify the prejudice to Waghorn. He said:[15]
What emerges from this discussion is, I think, that, if there is not only substantial prejudice to an accused arising from a joint trial but that prejudice is of a kind not really amenable to nullification by judicial direction, then the claim for a separate trial is very much stronger. This conclusion is confirmed, I think, by the Full Court’s reasons for the conclusion it reached in Gibb and McKenzie [1983] 2 VR 155; (1982) 7 A Crim R 385. But it does not follow that an application for severance in such a circumstance will succeed as a matter of course: see Ditroia and Tucci [1981] VR 247.
It might be said that the essential problem faced by the applicant in the present case (and for that matter in Demirok’s case ) could, in a sense, be overcome by an appropriate warning to the jury. It might be told, for instance, that when dealing with the case against Waghorn it should when considering Maloney’s evidence put out of its mind any opinion it had formed of her credibility when considering the case against Jones by calling in aid Jones’s police statement. It might then be told that it should consider afresh Maloney’s credibility without recourse to the evidence against Jones which was inadmissible against Waghorn. But such a direction is so unreal and contrived, not to say convoluted, that a judge might be excused from attempting to give it, or a jury from failing to understand it, still less for failing to act upon it. No direction in such a specific form appears to have been given in this case although it seems that in Demirok’s case some such direction may have been undertaken ...
[15]Ibid 164 (emphasis added). See also, ibid 167.
Smith J observed:[16]
The law recognises how difficult it is for any tribunal of fact to avoid being influenced by evidence of bad character. The jury, in this case, could not be expected to keep it out of their minds if given appropriate warnings and would be likely, despite appropriate warnings, to accept the allegations as true. No specific warnings were attempted. The only warnings given did not deal with these particular unfairly prejudicial aspects. Whether such warnings would have helped is debatable, for they would also highlight the inadmissible evidence going to his bad character. This highlights what ultimately appears to me to have been an intractable problem created by having a joint trial of the applicants.
[16]Ibid 184.
When the trial judge in the present case refused the application for a separate trial, she did so cognisant of the possible prejudice flowing to the applicant from Kenden’s record of interview. She took the view, however, that any prejudice could be dealt with acceptably by ‘strong’ directions. Significantly, the applicant’s counsel in this Court did not impugn the judge’s exercise of discretion. Moreover, although he had signalled pre-trial that he might renew the application for a separate trial if there was a deviation in the anticipated course of the trial, counsel subsequently did not do so. The record of the trial amply demonstrates why he would not have done so.
Unlike cases such as Demirok, Gibb and McKenzie and Jones and Waghorn, nothing changed in the course of the applicant’s trial to bring about a combination of unusual circumstances of the kind that applied in those cases, or to raise issues of collateral prejudice of the kind that there arose. Hence, nothing in the evidence elicited at trial in this case painted the applicant as a person of bad character, or resulted in the possibility of Kenden’s record of interview being used by the jury impermissibly to support in some material way the evidence of an important prosecution witness. Furthermore, there was nothing in Kenden’s record of interview – taken alone or in combination with the other evidence in the trial – which dictated that any directions given by the trial judge to guard against prejudice to the applicant flowing from a joint trial would be ‘unreal and contrived’ or ‘convoluted’, or would be of such a nature that the jury would fail to understand or act upon them.
The trial judge’s directions in the instant case were unimpeachable. She gave repeated and emphatic directions to the jury at various stages of the trial that they could not use Kenden’s record of interview when considering the prosecution’s case against the applicant. She also provided the jury with a ‘question trail’, which was designed to ensure that the jury should consider the case against the applicant first, and only then turn to the case against Kenden. The applicant’s counsel accepted that the design of the question trail was, ‘in part, to ensure that the jury did not use Kenden’s interview inappropriately against the applicant’.
Counsel for the applicant did not seek to impugn the nature or content of the trial judge’s directions, but submitted that they were insufficient to guard against the prejudice to his client flowing from a separate trial. We do not agree.
As we have said, counsel for the applicant contended that the jury’s question, asked in the course of deliberations, showed that the jury must impermissibly have used Kenden’s record of interview when considering the case for murder against the applicant.[17] We fail to see that this is so. To our minds, the question asked is perfectly consistent with a consideration of the case against Kenden who, after all, had given a version of events to police consistent with having initially participated in an agreement or understanding to take part in an attack on Mr Bourke which might cause him injury (or really serious injury), but had subsequently withdrawn from the agreement or understanding. Our view is fortified by the jury’s statement – which we have no reason to doubt – that they had decided on the verdict in the applicant’s case on the first day of deliberations, the balance of the time being devoted to a consideration of verdicts in Kenden’s case. The jury’s statement is consistent with them having followed the question trail provided by the trial judge.
[17]See [23] above.
In the final analysis, the applicant has failed to persuade us that the jury might have failed to have understood, or to have applied, the trial judge’s frequent forceful directions designed to guard against the jury’s possible misuse of Kenden’s record of interview in their consideration of the applicant’s case. Indeed, there is nothing in this case that might persuade us that the applicant has suffered a substantial miscarriage of justice.
Leave to appeal must be refused.
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[2022] VSCA 113

16 June 2022