Kalani v The State of Western Australia - [2013] WASCA 132

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KALANI -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 132

CORAM: BUSS JA
NEWNES JA
MAZZA JA

HEARD: 12 FEBRUARY 2013

DELIVERED : 24 MAY 2013

FILE NO/S: CACR 171 of 2012

BETWEEN: ARDESHIR KALANI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FENBURY DCJ
File No  :IND 1594 of 2011, IND 1597 of 2011

Catchwords:

Criminal law - Application for separate trial of coaccused - Charges of corruption - Out of court statements incriminating of appellant made by coaccused - Effect of alleged admissions by appellant - Whether prejudice to appellant can be guarded against by direction to jury

Legislation:

Criminal Appeals Act 2004 (WA), s 26
Criminal Code (WA), s 83(c)
Criminal Procedure Act 2004 (WA), s 133

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen SC
Respondent: Mr R G Wilson

Solicitors:

Appellant: Lemonis/Tantiprasut Lawyers
Respondent: Director of Public Prosecutions (WA)

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

Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20
House v The King (1936) 55 CLR 499
Leaman (1987) 28 A Crim R 104
Lowndes v The Queen (1999) 195 CLR 665
Mace v Murray [1955] HCA 2; (1955) 92 CLR 370
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
Salehi v The Queen [1999] WASCA 279
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Micalizzi [2010] WASCA 147
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302

BUSS JA: The appellant has been charged on an indictment filed in the District Court with 47 counts of corruption, contrary to s 83(c) of the Criminal Code (WA).
The appellant's co‑accused, Wathumullage Punnyasiri Wickramasinghe, has been charged on the same indictment with 48 counts of corruption, contrary to s 83(c).
It is alleged that the appellant aided Mr Wickramasinghe, a public officer, who is alleged to have acted corruptly in the performance or discharge of functions of his employment, so as to gain a benefit for Mr Wickramasinghe.
On 8 June 2012 and 4 July 2012, Fenbury DCJ heard an application by the appellant, pursuant to s 133(4) of the Criminal Procedure Act 2004 (WA), that he be tried separately from Mr Wickramasinghe.
The primary judge dismissed the appellant's application.
The appellant's trial has not been listed to start. See s 26(5) and s 26(6) of the Criminal Appeals Act 2004 (WA).
The appellant has applied for leave to appeal, pursuant to s 26(3)(b) of the Criminal Appeals Act, against his Honour's refusal to order that the appellant be tried separately.

The background facts and circumstances and the primary judge's reasons

The background facts and circumstances and the primary judge's reasons are set out in the reasons of Newnes JA. I will not repeat them except to the extent necessary to explain my reasons.

The State's case

The State's case is, in essence, that Mr Wickramasinghe acted corruptly in the performance or discharge of functions of his employment by the Department of Health (the Department) as an engineer and project manager, so as to gain a benefit for himself.
It is alleged that the appellant knowingly aided Mr Wickramasinghe in carrying out his corrupt acts.
The State has provided particulars of the indictment. These particulars indicate that, according to the State, Mr Wickramasinghe and the appellant acted jointly in a corrupt scheme under which:
(a)Mr Wickramasinghe used his position as an engineer and project manager with the Department to engage the appellant as a project administrator for various works that were being undertaken for the Department's benefit.
(b)The appellant, in turn, subcontracted some of this project administration work to Mr Wickramasinghe, without the knowledge of the Department.
(c)Pursuant to this arrangement, the appellant paid to Mr Wickramasinghe some of the money the appellant received from the Department for the project administration work, without the knowledge of the Department.
According to the State, the object of the scheme was to facilitate the improper payment to Mr Wickramasinghe of the Department's money, without Mr Wickramasinghe having to comply with policies and procedures of the Department applicable to its employees and without the Department's knowledge.
The State's case against Mr Wickramasinghe is, to a significant extent, based on direct evidence, including admissions against interest made by him in audio‑visually recorded interviews with officers of the Corruption and Crime Commission (CCC).
The State's case against the appellant is, at least to a significant extent, circumstantial. It will allege that the only reasonable inference open on all the evidence admissible against the appellant, including statements made by him in audio‑visually recorded interviews with officers of the CCC, is that he was a knowing and active participant with Mr Wickramasinghe in the corrupt scheme.

The appellant's case

The critical issue at trial, as between the State and the appellant, will be whether the appellant was knowingly a party to the corrupt scheme.
The appellant told the CCC officers during the interviews that he thought Mr Wickramasinghe's daughter, Ashara, was performing the subcontracted work and receiving the payments from him.

The grounds of appeal

The appellant relies on two grounds of appeal.
Ground 1 alleges that the primary judge erred in concluding that the likelihood of the appellant being prejudiced at his trial by evidence admissible against his co‑accused, Mr Wickramasinghe, but inadmissible against him, was ameliorated by admissions made by the appellant to the CCC officers.
Ground 2 alleges that his Honour's decision to refuse to make an order under s 133(4) of the Criminal Procedure Act was unreasonable or plainly unjust.
On 31 October 2012, McLure P referred the application for leave to appeal on these grounds to the hearing of the appeal.

The relevant text of s 133 of the Criminal Procedure Act

Section 133(1) of the Criminal Procedure Act provides that the powers in s 133 may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.
By s 133(2), a court may amend or cancel an order made under s 133.
Section 133(3) provides, relevantly, that if a court is satisfied that an accused is likely to be prejudiced in a trial of a prosecution notice or indictment because it contains two or more charges, the court may order that the accused be tried separately on one or more of the charges.
Section 133(4) provides:
If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order ‑
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
By s 133(5):
In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court ‑
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.

The proper construction of s 133(4) and s 133(5) of the Criminal Procedure Act

In Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 [335] ‑ [349], I examined the proper construction of s 133(4) and s 133(5) of the Criminal Procedure Act. It is unnecessary to reproduce what I wrote in that case.

Ground 1 of the appeal

At the hearing before the primary judge, the appellant argued that he was likely to be prejudiced in a joint trial of the charges in the indictment because evidence that was admissible against Mr Wickramasinghe, but not admissible against him, would be adduced by the State.
The evidence in question comprises statements made by Mr Wickramasinghe during the interviews with officers of the CCC that directly implicate the appellant in the alleged corrupt scheme. For example:
(a)Mr Wickramasinghe said that the appellant knew that he (and not his daughter, Ashara) was the only person doing the subcontracted project administration work: pages 48 ‑ 49 of the prosecution brief.
(b)Mr Wickramasinghe said that it was the appellant's idea to make payments to Ashara for the subcontracted project administration work done by him, and that the appellant had probably made this suggestion because the appellant thought that Mr Wickramasinghe had a conflict of interest: pages 141 ‑ 143 of the prosecution brief.
It was common ground before his Honour that the audio‑visually recorded interviews with Mr Wickramasinghe were not admissible in the State's case against the appellant. Also, it was common ground before his Honour that the appellant was likely to be prejudiced in a joint trial of the charges in the indictment.
However, counsel for the State submitted to the primary judge (and, in essence, reiterated before this court) that, in assessing whether the likelihood of this prejudice could be guarded against by a direction to the jury, it was relevant to take into account the degree of prejudice that was likely to be suffered. According to counsel for the State, the degree of prejudice was reduced because the appellant himself had made various admissions in his own audio‑visually recorded interviews. His Honour accepted this submission.
The primary judge said in his reasons for decision:
For the purpose of this hearing, [the appellant] does, in my view, make admissions of fact that could support adverse inferences in his interview in the passages referred to in paragraph 19 of the State's submissions. In addition, [the appellant] makes admissions in his letter sent by email to the investigating officer, Forbes, on 29 July 2010 at 7.15 am.
There may be disputation about when it was that [the appellant] acquired relevant knowledge, whether before or after the investigation commenced or the conduct occurred, but that would, in my view, be a jury question. These admissions made by [the appellant] on the face of it amount to or could amount to significant incriminating (read: prejudicial) material that is admissible.
There also seems to me to be considerable similarity between [the appellant's] admissions against his own interest, above identified, and the inadmissible statements [Mr Wickramasinghe] makes about [the appellant's] conduct in [Mr Wickramasinghe's] interview. The certain presence of the admissible material referred to above in the trial before the jury does, in my view, ameliorate the potential impact of the presence of the inadmissible prejudicial material in the out-of-court statements made by the co-accused [Mr Wickramasinghe] if they were tried together.
I think this is a relevant factor to bear in mind in my contemplation of the issue of the extent of the prejudice arising from the out-of-court statements of [Mr Wickramasinghe] in a joint trial and the degree of confidence a jury would be able to apply the judicial direction to ignore [Mr Wickramasinghe's] comments about [the appellant] in their consideration of the case against [the appellant] (ts 161).
In my opinion, this passage reveals an error in the primary judge's reasoning.
The relevant prejudice to the appellant is that the jury may impermissibly use what Mr Wickramasinghe told the CCC officers about the appellant's alleged knowing and active involvement in the corrupt scheme in deciding whether the appellant in fact knowingly aided Mr Wickramasinghe, as alleged by the State.
The prosecutor will, no doubt, submit at the trial that, on the basis of all of the evidence admissible against the appellant (including his admissions to the CCC officers), the jury should be satisfied beyond reasonable doubt of the appellant's guilt; that is, the only reasonable inference open on all of the evidence admissible against the appellant is that Mr Wickramasinghe acted corruptly, as alleged by the State, and the appellant knowingly aided him in carrying out those corrupt acts, as alleged.
The appellant repeatedly denied in the interviews with the CCC officers that he knowingly aided Mr Wickramasinghe in carrying out his corrupt acts.
Before this court there was a contest between counsel for the appellant and counsel for the State as to the proper interpretation of, and whether any adverse inferences could be drawn from, various answers given by the appellant in his audio‑visually recorded interviews with the CCC officers. It is neither necessary nor appropriate for this court to express an opinion on the matters in contest. They will be resolved by the jury at trial. However, for the purposes of ground 1, I will assume (favourably to the State) that it is reasonably arguable that the appellant did make admissions against interest as asserted by the State.
The State relies on the alleged admissions by the appellant in the interviews, and other evidence admissible against him, as a basis for inferential reasoning; in particular, to infer that he knew that Mr Wickramasinghe, and not Ashara, was doing the subcontracted work and receiving the payments.
In my opinion, the relevant prejudice to the appellant cannot logically be ameliorated or reduced by the fact that it is reasonably arguable that an inference of guilt can be drawn from the appellant's out‑of‑court statements and other evidence admissible against him. The appellant's alleged admissions are not (either wholly or with immaterial exceptions) identical to Mr Wickramasinghe's alleged admissions. The probative force of the appellant's alleged admissions does not diminish the likely prejudice in a joint trial of the charges arising from the tendering of Mr Wickramasinghe's out‑of‑court statements. Indeed, at least without an appropriate direction from the trial judge, the admissions made by Mr Wickramasinghe which implicate the appellant could potentially be used impermissibly by the jury; for example, to strengthen or reinforce their satisfaction that the only reasonable inference open on all of the evidence admissible against the appellant is that he knowingly aided Mr Wickramasinghe in carrying out the corrupt acts.
Ground 1 has been made out.

Ground 2 of the appeal

Counsel for the appellant submitted in essence that the decision of the primary judge to dismiss the appellant's application for a separate trial was unreasonable or plainly unjust. He asserted that it can be inferred from the result that his Honour failed properly to exercise the discretion conferred by s 133(4) read with s 133(5) of the Criminal Procedure Act.
It was submitted on behalf of the appellant that:
(a)for the State to prove its case against the appellant at trial, the State will first have to establish that Mr Wickramasinghe committed the principal offence;
(b)when the jury is deciding whether the State has established that Mr Wickramasinghe committed the principal offence, it will take into account Mr Wickramasinghe's admissions, including those which implicate the appellant; and
(c)it is unreasonable and unrealistic to expect that the jury will be able to 'disentangle' the evidence and the findings it may make in relation to the State's case against Mr Wickramasinghe from the evidence it is permitted to take into account in considering the State's case against the appellant.
I am not persuaded that there is merit in ground 2.
In my opinion, appropriate directions by the trial judge will be sufficient to guard against or overcome any prejudice to the appellant arising from the out‑of‑court statements made by Mr Wickramasinghe in relation to him.
It is not apparent that the case at trial will involve a complicated mixture of admissible and inadmissible material which a jury could not reasonably be expected to evaluate in detail. The contentious item of evidence comprises an audio‑visual record of interviews. This is a common occurrence in trials involving an alleged joint enterprise.
The trial judge will expressly and carefully direct the jury as to the use which the jury may make of the evidence, so far as it concerns each of Mr Wickramasinghe and the appellant. A separate consideration direction will be given. The jury's task will not be to 'disentangle' evidence or findings. Its task will be to examine the case against each accused separately by reference to the evidence admissible against him. The jury will be required to put aside the evidence and findings it may make in relation to one accused when considering the case against the other accused. I am satisfied that the jury will be capable of performing these tasks in accordance with the trial judge's instructions. It is reasonable to expect that the jury, properly directed, will not take into account, when it considers the State's case against the appellant, any prejudicial evidence which is inadmissible against him.
No doubt, the trial judge will assess whether the requisite directions should be given to the jury, not only during his or her summing up, but also when Mr Wickramasinghe's audio‑visual record of interviews is played to the jury and tendered by the prosecutor. I anticipate that the trial judge will also assess whether it is desirable to inform the jury generally about the issue at the beginning of the trial.
In the present case, separate trials are not required to ensure that the appellant receives a fair trial.
In any event, the trial judge has power, on his or her own initiative or on an application by the appellant, to revisit the question of separate trials if unfairness to the appellant, which is not discernible at this stage and which cannot be guarded against or overcome by judicial directions, emerges during the trial. See s 133(1) of the Criminal Procedure Act.
Ground 2 fails.

The consequences of ground 1 having been made out

Section 26(7) of the Criminal Appeals Act provides that, on an appeal under s 26 against an order or a refusal to make an order, this court 'may confirm the order or refusal, or set it aside and make any order that could have been made on the application for a separate trial'.
An appellate court is not justified in interfering with a decision made in the exercise of a discretionary judgment unless it reaches the clear conclusion that, by reason of some error of fact or law, the primary judge 'not only has taken a view different from that which the judges of the court of appeal would have taken if they had been in his place, but has

failed properly to exercise the discretion committed to him': Mace v Murray [1955] HCA 2; (1955) 92 CLR 370, 378 (Dixon CJ, Webb, Fullagar, Kitto & Taylor JJ).

In my opinion, for the reasons I have given when examining ground 2, the decision of the primary judge to dismiss the appellant's application for a separate trial was correct. My view as to the outcome of the application is not different. His Honour's order should therefore be confirmed.

Conclusion

I would grant leave to appeal on ground 1 but refuse leave on ground 2. The appeal should be dismissed.
NEWNES JA: This is an appeal against a decision of Fenbury DCJ who dismissed an application by the appellant for an order that the appellant be tried separately from his co‑accused.
The appellant requires leave to appeal. On 31 October 2012, McLure P ordered that the application for leave be heard with the appeal.

Background

The appellant and Wathumullage Punnyasiri Wickramasinghe (Wickramasinghe) have been charged on one indictment with 47 counts of corruption, contrary to s 83(c) of the Criminal Code (WA). On each count Wickramasinghe is charged that, being a public officer, he acted corruptly in the performance of a function of his employment so as to gain a benefit for himself. The appellant is charged with aiding Wickramasinghe. The charges have been joined in one indictment pursuant to cl 7 of sch 1 div 2 of the Criminal Procedure Act 2004 (WA) (the Act).
Wickramasinghe was at all material times employed as an engineer and project manager by the Department of Health. The prosecution's case, in substance, is that in the five year period from 1 July 2004 to 31 October 2009 the appellant and Wickramasinghe acted jointly in a corrupt scheme. Under the alleged scheme, Wickramasinghe used his position as project manager with the Department to engage the appellant as a project administrator for various works that were being carried out for the Department. The appellant then engaged Wickramasinghe to carry out some of the work for which the appellant had been engaged. The fact that Wickramasinghe was carrying out some of the work was concealed from the Department. The appellant used some of the money he was paid by

the Department as project administrator to pay Wickramasinghe, again without the Department's knowledge.

The prosecution case is that the appellant knowingly assisted Wickramasinghe by:
1.arranging for the invoices rendered by Wickramasinghe to the appellant to be in firm names, 'Star 12' and 'Ashara Engineering Design and Drafting' (Ashara is the name of Wickramasinghe's daughter);
2.invoicing the Department in sums of less than $10,000 so that they could be authorised by Wickramasinghe;
3.requesting a letter of introduction from Wickramasinghe to indicate falsely that others did the work;
4.paying on invoices in the firm names although he knew that the payment was going to Wickramasinghe;
5.paying on false invoices for work which could not have occurred;
6.altering the description of works of previously issued invoices; and
7.sending correspondence to Wickramasinghe in terms that purport to be to 'Star 12' and 'Ashara Engineering Design and Drafting'.
It will be alleged that the effect of the scheme was to enable Wickramasinghe to receive money from the Department without its knowledge and without complying with its relevant policies and protocols.
The substance of the appellant's case appears from interviews with the appellant conducted by officers of the Corruption and Crime Commission. In essence, the appellant denied being involved in any corrupt scheme with Wickramasinghe. The appellant told the investigating officers that he thought Wickramasinghe's daughter, Ashara, was carrying out the work and receiving the payments from the appellant for it.
I understood it to be common ground on the appeal that the main issue in the case against the appellant will be whether the appellant was knowingly and intentionally a party to the alleged scheme with Wickramasinghe.
The appellant applied to be tried separately from Wickramasinghe, pursuant to s 133(4) of the Act. The appellant contended that he was likely to be prejudiced if tried with Wickramasinghe because evidence of out of court statements made by Wickramasinghe incriminating of the appellant would be adduced by the prosecution at trial in the case against Wickramasinghe. While those statements were admissible against Wickramasinghe they were not admissible against the appellant. However, they were likely to be used impermissibly by the jury in deciding the case against the appellant.

The decision of the primary judge

The primary judge noted that the prosecution case included evidence of out of court statements by the appellant and Wickramasinghe respectively, all of which were on DVD and would be put into evidence at the trial. His Honour further noted that in Wickramasinghe's out of court statements, Wickramasinghe made extensive reference to his dealings with the appellant, much of which was incriminating of the appellant. While the statements were not admissible against the appellant, it was not in dispute that the appellant's defence would be significantly prejudiced by those statements. Nor was it in dispute that the prejudice arises because the appellant is charged on the same indictment as Wickramasinghe. His Honour considered that because the relevant statements were an important part of the case against Wickramasinghe there was little scope for editing them out.
In the exercise of his discretion the primary judge concluded, however, that there should be a joint trial. His Honour noted that the charges arose out of the same facts and much of the alleged conduct involved the activity of both accused acting in concert or with the appellant assisting Wickramasinghe. If there were separate trials the same prosecution witnesses would have to give the same evidence in each.
In considering the nature and extent of the prejudice to the appellant, the primary judge referred to certain admissions said to have been made by the appellant in his out of court statements and in an email sent to the investigating officer on 29 July 2010. His Honour considered that the admissions amounted to, or could amount to, significant admissible and incriminating material against the appellant. His Honour also noted that there seemed to be 'considerable similarity' between those admissions and the (inadmissible) statements made by Wickramasinghe about the appellant. His Honour considered it was a relevant factor that if they were tried together the presence of the appellant's admissions would 'ameliorate' (by which I understand his Honour to mean lessen) the potential impact of the presence of the inadmissible prejudicial material in the out of court statements made by Wickramasinghe.
The primary judge concluded that the prejudice to the appellant could be overcome by an appropriate direction to the jury. He considered that a jury would be reasonably capable of distinguishing between what evidence was admissible against the appellant and what was not. His Honour therefore dismissed the application.
The appellant has appealed against his Honour's decision.

The relevant statutory provisions

Section 133 of the Act, so far as relevant, is as follows:
(4)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
(5)In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
Section 26(7) of the Criminal Appeals Act 2004 (WA) provides that on an appeal against a decision to grant or to refuse a separate trial (as the case may be) this court 'may confirm the order or refusal, or set it aside and make any order that could have been made on the application for a separate trial'.

The grounds of appeal

The appellant relied upon the following grounds of appeal:
1.The learned primary judge erred in the exercise of his discretion, when refusing to make an order pursuant to s 133(4) of the Criminal Procedure Act 2004 (WA), in concluding that the likelihood of the appellant being prejudiced at his trial by evidence admissible against his co‑accused, but inadmissible against the appellant, was ameliorated by admissions that were made by the appellant to Corruption and Crime Commission officers; and
2.The decision of the learned primary judge to refuse to make an order pursuant to s 133(4) of the Criminal Procedure Act 2004 (WA) was unreasonable or plainly unjust.

Disposition of the appeal

It is convenient before turning to the grounds of appeal to refer briefly to the relevant legal principles.
A decision under s 133(4) of the Act whether or not to order separate trials involves an exercise of discretion. It is well‑established that an appellate court will not interfere with an exercise of discretion unless it is shown that the primary judge made a material error of law or fact. An appellate court is not entitled to substitute its own view for that of the primary judge merely because the appellate court would have exercised the discretion differently. See Lowndes v The Queen (1999) 195 CLR 665 [15]; House v The King (1936) 55 CLR 499.
Where charges against two or more accused are contained in one indictment, they must be tried together unless a court orders otherwise: cl 9, sch 1 div 2 of the Act. That is because a joint trial promotes consistency in decision‑making and facilitates a single inquiry into matters which arise out of or essentially involve common issues of fact or law. It also promotes the due and expedient administration of criminal justice, including a saving in court time and public expense, and greater convenience for witnesses: Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 [128].
The question of whether the court should order separate trials involves two steps. Before the discretion under s 133(4) of the Act to order separate trials is enlivened, the court must be satisfied that there exist reasonable grounds upon which a court could properly be satisfied that:
(a)an accused is likely to be prejudiced in the trial; and
(b)the likely prejudice is caused by the fact that the indictment also charges one or more other accused.
The matters said to give rise to the likely prejudice must be actual (not assumed) and affect what happens in the trial itself. See The State of Western Australia v Micalizzi [2010] WASCA 147 [23] ‑ [28].
Then, if the discretion is enlivened, the overriding question in exercising the discretion is whether separate trials are required to ensure that the accused receive a fair trial: The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 [67].
The fact that evidence is admissible against one accused but not against another is not, of itself, a sufficient reason to order separate trials. It is common in a joint trial that evidence admissible against only one of two or more accused is received into evidence. In deciding whether to make an order under s 133(4) of the Act it is open to the court to decide that any likelihood of prejudice can be guarded against by a direction to the jury: s 133(5). In making that decision it must be presumed that the jury will accept and faithfully apply the trial judge's directions: Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22; Salehi v The Queen [1999] WASCA 279 [43]; Bowen [31].
Whether the prejudicial effect of the inadmissible evidence is capable of being adequately guarded against by an appropriate instruction to the jury will usually involve two issues; namely, will the average jury be reasonably capable, as an intellectual exercise, of performing the task given to them; and, is the prejudice likely to be so great that it would not be reasonable to expect the jury to leave the prejudicial evidence out of account against a particular accused even though it is inadmissible against that accused: Leaman (1987) 28 A Crim R 104, 108 ‑ 109; Bowen [32].
In the ordinary case, a properly instructed jury is capable of distinguishing between evidence that is admissible against one offender but not admissible against another. There will, however, be cases in which the prejudice is so great that it cannot confidently be concluded that it will be overcome: Zammitv The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [65]; Leaman (112 ‑ 113).
It should also be noted that where an order for separate trials is sought and refused before trial, that is not necessarily the end of the matter. If subsequently further circumstances emerge from which it appears that there ought to be a separate trial, the trial judge has the power at any stage to order a separate trial: s 133(1), (2) of the Act; Zammit [66].

Ground 1

It was submitted on behalf of the appellant that the primary judge erred in assessing the likely prejudice to the appellant. The likely prejudice was the risk that the jury would impermissibly use what was said by Wickramasinghe about the appellant's involvement in the alleged scheme in deciding whether the appellant was jointly involved in the scheme. Senior counsel for the appellant submitted that the prejudice was exacerbated because the case against the appellant was circumstantial. It was further submitted that his Honour had misconstrued what had been said by the appellant in the interview and that there were no admissions by the appellant from which an inference of guilt might be capable of being drawn. On the contrary, the appellant had steadfastly and consistently denied that he had knowingly aided Wickramasinghe in carrying out the corrupt acts.
Senior counsel for the appellant argued that, in any event, it was not to the point in assessing the prejudice arising from Wickramasinghe's out of court statements that an inference of guilt might be capable of being drawn from admissions made by the appellant.
Counsel for the respondent argued that, as the primary judge had found, the extent of the prejudice to the appellant had to be assessed, among other things, in light of the incriminating statements made in the appellant's own interview with investigating officers. Whether that was expressed as 'ameliorating' the effect of the prejudicial material or otherwise, it was appropriate for the primary judge to take into account the overall effect or impact at the trial of that material in the light of the other evidence. To that end, counsel drew attention to a number of passages in the transcript of the interview to which the primary judge had referred in his reasons as being admissions by the appellant which were similar in effect to the statements made by Wickramasinghe.
There is no doubt, as the primary judge found, that a number of statements made by Wickramasinghe in his interviews with officers of the Corruption and Crime Commission were prejudicial to the appellant. It is unnecessary to refer to the passages from the transcripts of those interviews which were referred to by counsel in the course of argument. It is also unnecessary to refer to the statements which the primary judge identified as constituting admissions by the appellant similar in nature to the statements made by Wickramasinghe. Whether the statements made by the appellant constituted admissions at all was, as mentioned above, in issue on the appeal. That, however, is not a matter for this court to resolve; it is a matter for trial.
In my opinion, it was appropriate in considering whether to order separate trials that the primary judge make an assessment of the nature and extent of the prejudice to the appellant at trial from the out of court statements made by Wickramasinghe incriminating of the appellant. And there may be cases where the extent of the prejudice arising from out of court statements made by one co‑accused incriminating of the other accused is lessened by out of court admissions made by the other accused. Such a case might arise where it is clear that the incriminating statements made by the co‑accused are to the same effect as admissions made by the other accused. This, however, is not such a case. What are said to be admissions made by the appellant are not clearly to the same effect as the statements made by Wickramasinghe.
Having regard to the nature of the statements made by Wickramasinghe and the appellant respectively, I consider the primary judge erred in concluding that the extent of the prejudice to the appellant from the out of court statements made by Wickramasinghe was lessened in a significant way by the out of court statements the appellant made.
I would allow this ground of appeal.

Ground 2

The appellant contends under this ground that the decision of the primary judge was plainly unjust and unreasonable, and therefore error is to be inferred.
It was submitted on behalf of the appellant that it was important to appreciate that in order to prove the case against the appellant the prosecution will need to establish that Wickramasinghe committed the offence. Therefore at a joint trial, in order to determine whether Wickramasinghe is guilty of the offences with which he is charged, the jury will be required to assess all of the evidence admissible against Wickramasinghe, including his out of court statements about the appellant's alleged involvement in the scheme. In turn, in order to determine whether the appellant is guilty of the offences with which he is charged, the jury will be required to assess all of the evidence admissible against the appellant to determine whether that evidence establishes that Wickramasinghe committed the offence and that the appellant was guilty of aiding Wickramasinghe. In relation to the case against the appellant, the jury will be required to put out of its mind the evidence of Wickramasinghe's admissions, including his admissions that refer to the appellant's alleged involvement.
It was submitted that it was unreasonable and unrealistic to expect that a jury would be able to 'disentangle' the evidence relating to, and any findings it makes about, the conduct of Wickramasinghe and the appellant in the case against Wickramasinghe, from the evidence it is permitted to take into account in determining the guilt of the appellant. The danger that the jury would consciously or unconsciously use statements by Wickramasinghe about the appellant's involvement in deciding whether the appellant was guilty was increased because the case against the appellant was circumstantial. The prejudice could not be overcome by a direction. It was submitted that in the circumstances the decision of the primary judge to dismiss the appellant's application for a separate trial was plainly unjust and unreasonable.
I do not accept that submission. The prejudicial evidence in question is, as the respondent submitted, readily identifiable. It is contained in one exhibit, Wickramasinghe's video record of interview. True it is that the jury will have to keep in mind that what is contained in that record of interview is only admissible in the case against Wickramasinghe; that it is not evidence in the case against the appellant and that the case against the appellant must be decided without any regard to it. That will require the jury to keep separate the evidence and its findings in the case against Wickramasinghe on the one hand, and the evidence and its findings in the case against the appellant on the other hand.
I consider, however, that the likelihood of prejudice to the appellant is capable of being overcome by an appropriate direction to the jury. The trial judge will be required to identify for the jury the evidence which is admissible in relation to the charges against Wickramasinghe and the evidence which is admissible in relation to the charges against the appellant respectively, and the use to which that evidence can be put in each case. It is not a question of the jury 'disentangling' evidence but rather, in determining the guilt of the appellant, putting aside what was said by Wickramasinghe in his video record of interview. That is a task which is capable of being the subject of a clear direction to the jury and in

my opinion it is a task which the average jury would be capable of performing successfully.

I do not accept that the prejudicial effect of Wickramasinghe's statements is so great that it is unreasonable to expect the jury to leave them out of account in deciding the case against the appellant. Those statements are not of such a nature that the prejudice would be incapable of being overcome by an appropriate direction to the jury.
This ground of appeal should be dismissed.

Conclusion

I would confirm the order made by the primary judge. Although his Honour erred in finding that admissions by the appellant lessened the effect of the prejudicial statements made by Wickramasinghe, for the reasons set out in relation to ground 2, I consider his Honour was correct to conclude that the prejudice to the appellant can properly be guarded against by an appropriate direction by the trial judge and accordingly to dismiss the application for a separate trial.
I would dismiss the appeal.
MAZZA JA: I agree with Buss JA.