R -v- AVIS & ORS [2000] WASC 281

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 281
Case No:	INS:122/2000	Heard:	23 OCTOBER 2000
Coram:	HASLUCK J	Delivered:	24/11/00
No of pages:	14	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	THE QUEEN KEVIN LESLIE AVIS MARK DOUGLAS WINNING JULIE ANNE HARRIS
Catchwords:	Criminal law and procedure Joint indictment for wilful murder Application for separate trials Principles to be applied Directions to jury concerning out-of-court statements General rule favouring joint trial applied
Legislation:	Criminal Code, s 7, s 8, s 278, s 586, s 587, s 624
Case References:	Demirok v The Queen (1977) 137 CLR 20 Holden (1990) 52 A Crim R 32 R v Berghella & Anor, unreported; SCt of WA; Library No 940313; 3 June 1994 R v Connell, Lucas & Carter (No 1) (1992) 8 WAR 518 R v Grondowski [1946] 1 KB 369 R v Guldur (1986) 8 NSWLR 12 R v Wood [2000] WASC 64 Rintel v R [1986] WAR 175 Seel v R, unreported; CCA SCt of WA; Library No 960199; 12 April 1996 Webb v R (1993) 122 ALR 41 Carter v The Queen (1994) 12 WAR 310

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : R -v- AVIS & ORS [2000] WASC 281 CORAM : HASLUCK J HEARD : 23 OCTOBER 2000 DELIVERED : 24 NOVEMBER 2000 FILE NO/S : INS 122 of 2000 BETWEEN : THE QUEEN

AND

KEVIN LESLIE AVIS

MARK DOUGLAS WINNING

JULIE ANNE HARRIS

Catchwords:

Criminal law and procedure - Joint indictment for wilful murder - Application for separate trials - Principles to be applied - Directions to jury concerning out-of-court statements - General rule favouring joint trial applied

Legislation:

Criminal Code, s 7, s 8, s 278, s 586, s 587, s 624

Result:

Application dismissed

(Page 2)

Representation:

Counsel:

Crown : Mr P J Urquhart

The Accused Avis : Mr S V Smith

The Accused Winning : Mr T B Grantham

The Accused Harris : No appearance

Solicitors:

Crown : State Director of Public Prosecutions

The Accused Avis : Stephen Smith

The Accused Winning : Pearman Grantham

The Accused Harris : No appearance

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

Demirok v The Queen (1977) 137 CLR 20
Holden (1990) 52 A Crim R 32
R v Berghella & Anor, unreported; SCt of WA; Library No 940313; 3 June 1994
R v Connell, Lucas & Carter (No 1) (1992) 8 WAR 518
R v Grondowski [1946] 1 KB 369
R v Guldur (1986) 8 NSWLR 12
R v Wood [2000] WASC 64
Rintel v R [1986] WAR 175
Seel v R, unreported; CCA SCt of WA; Library No 960199; 12 April 1996
Webb v R (1993) 122 ALR 41

Case(s) also cited:

Carter v The Queen (1994) 12 WAR 310

(Page 3)

1 HASLUCK J: This is an application by the accused Kevin Leslie Avis to have a trial separately from the accused Mark Douglas Winning and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Avis

Details

AGLC: R v Avis [2000] WASC 281
Case: [2000] WASC 281
Decision Date: 24 NOVEMBER 2000

CaseChat Overview and Summary

The case of R v Avis involved two defendants who were jointly indicted for wilful murder. The applicants sought separate trials on the grounds that it was in the interests of justice to do so, due to the differing versions of events presented by each. The matter was heard in the High Court of Australia. The central legal issue before the court was whether the general rule favouring joint trials in cases of joint indictment should be departed from in this instance.

The court considered the principles that should be applied when deciding whether to grant an application for separate trials. It was established that the general rule is to favour joint trials, and any departure from this rule must be justified on compelling grounds. The court also examined the directions to be given to the jury concerning out-of-court statements made by the defendants. The court found that there were no compelling reasons to depart from the general rule in this case, and therefore dismissed the application for separate trials. The court emphasised that the interests of justice were best served by a joint trial, which would allow the jury to assess the credibility of the evidence presented by both defendants in a single proceeding.

The court's reasoning was based on the principle that joint trials are generally in the interests of justice, as they allow for the most efficient and effective use of judicial resources, and enable the jury to assess the evidence as a whole. The court found that the potential prejudice to one defendant by being tried jointly with the other did not outweigh the benefits of a joint trial. The court also noted that the jury would be properly directed to consider the out-of-court statements in the context of the entire case, and that any prejudicial effect could be mitigated by appropriate directions.

The final orders of the court were that the application for separate trials was dismissed, and the defendants would be tried jointly. The court's decision reinforces the importance of the general rule favouring joint trials in cases of joint indictment, and highlights the need for compelling reasons to depart from this rule.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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