Franklin v The Queen

The High Court of Australia heard an application for special leave to appeal concerning the circumstances under which separate trials should be granted for co-accused. The applicant argued that the prevailing practice and judicial commentary, particularly following cases like *Darby* and *Guldur*, had created an entitlement for juries to be appraised of the "whole story" in joint trials, even when co-accused sought to attribute blame to each other. The applicant contended that this approach risked impermissible prejudice to co-accused by allowing juries to consider evidence not admissible against them individually.

The central legal issue before the High Court was whether the "whole story" approach, as applied in determining applications for separate trials, was an appropriate or misleading consideration. The applicant sought to argue that while joint trials offered efficiencies, the risk of prejudice arising from inadmissible evidence being considered by the jury in relation to a co-accused should be the primary determinant for ordering separate trials, rather than a general notion of presenting the "whole story."

The Court acknowledged that the decision of whether to grant a separate trial rests with the trial judge, who must balance the desirability of consistency, expedition, and minimising strain on witnesses against the risk of admitting inadmissible evidence against one accused in the case of another. The applicant's argument introduced a proposition that the "whole story" approach, as adopted by the Court of Criminal Appeal, might lead juries to consider evidence beyond what is strictly admissible against each individual accused, thereby potentially causing prejudice. The Court noted that the applicant sought to distinguish their argument from previous authorities by suggesting that the "whole story" consideration itself did not resolve the issue of prejudice.