R v Avis
[2000] WASC 281
•24 NOVEMBER 2000
R -v- AVIS & ORS [2000] WASC 281
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 281 | |
| Case No: | INS:122/2000 | 23 OCTOBER 2000 | |
| Coram: | HASLUCK J | 24/11/00 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| 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
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
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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 Julie Anne Harris. The indictment refers to s 278 of the Criminal Code and alleges that on 24 September 1999 at Craigie the three accused wilfully murdered Howard Lister.
2 When it is alleged that two or more persons joined in the commission of an offence, it is apparent from various provisions of the Criminal Code, including s 586 and s 587, that they may be indicted for that offence jointly in one indictment.
3 Section 624 of the Code provides that when two or more persons are charged in the same indictment, whether with the same offence or with different offences, the Court may, at any time during the trial, on the application of any of the accused persons, direct that the trial of the accused persons, or any of them, shall be had separately from the trial of the other or others of them.
4 In due course, I will turn to the legal principles bearing upon the application of these provisions to the circumstances of the present case. It is important to recognise at the outset, however, that if the considerations relied upon by counsel for the accused Avis are thought to have sufficient merit to justify directions for a separate trial, then such considerations would have to be taken into account in respect of each of the accused persons, with the result that there could be three trials of the accused persons for the separate offences of the wilful murder of Howard Lister.
5 Put shortly, although the application for a separate trial is made on behalf of the accused Avis, it also becomes necessary to review the situation of each accused and to recognise the possibility that if provision is made for the accused Avis to have a separate trial, then Winning and Harris might be thought to have a similar entitlement.
6 At the time of his death, the deceased was in a de facto relationship with the accused Harris. They lived together at an address in Craigie with the 14-year-old son of Harris. The accused Avis and Winning knew each other and at the relevant time were working together. Avis was a self-employed handyman and Winning was employed as his assistant.
7 The deceased and Harris would often drink at the Whitfords Tavern. It seems that their relationship was punctuated by violent domestic disputes brought on by the consumption of alcohol.
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8 The Crown case against the three accused is that on 23 September 1999 Avis and Winning drove to the Whitfords Tavern in Winning's vehicle. The deceased and Harris were also at the tavern during the course of that evening. Following an argument between them, the deceased was ordered by a staff member to leave the tavern, which he did.
9 The Crown says that Harris remained at the tavern and spoke to Avis and Winning. At closing time, the three accused were observed standing outside the tavern next to Winning's vehicle. Harris was then given a lift in Winning's vehicle back to her house, which was a short distance from the tavern. Upon arriving at Harris' address, she remained in the car whilst Avis and Winning went to the front door. By this stage, it was some time after midnight on 24 September 1999.
10 The Crown says that after Avis and Winning knocked on the door, it was answered by Harris' 14-year-old son. He was told to leave the house and take his dog for a walk. After the boy left, Avis and Winning entered the house and observed the deceased asleep on a chair in the lounge room.
11 The Crown says that whilst the deceased slept, Avis and Winning entered the kitchen and one of them obtained a number of knives from a kitchen drawer. One of them then approached the deceased and stabbed him a number of times whilst he slept.
12 The Crown will lead evidence to show that the deceased was stabbed twice in the neck. One wound was to the right side of the neck, which only penetrated to a depth of one centimetre, as the knife blade made contact with the spinal column. The other stab wound was to the same side of the neck, which severed the carotid artery and jugular vein. It had a depth of eight centimetres. The knife handle broke on this occasion, leaving the blade embedded in the deceased's neck. He also received a stab wound to the chest.
13 The Crown case is that the three accused then agreed to dispose of the body in the Gnangara pine plantation. Winning and Avis placed the body of the deceased into the deceased's Commodore station wagon, which was then driven by Avis. Winning followed in his vehicle. Harris remained at the house. Once at the pine plantation, Winning and Avis dug a shallow grave and buried the body. Avis then deliberately drove the deceased's vehicle into a tree, whereupon it was doused in petrol and set alight. During the course of the day of the killing, the three accused were involved in concealing evidence implicating them in the commission of the death.
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14 I was advised in the course of argument that the Crown does not intend nominating which of the accused Avis and Winning inflicted the fatal stab wound. It is the Crown's case that each of the three accused is implicated in the commission of the alleged wilful murder by virtue of the provisions of s 7 or s 8 of the Criminal Code.
15 I digress briefly to note that written submissions filed on behalf of the accused Avis in support of the application for a separate trial were generally consistent with the narrative I have just outlined, save for the central issue as to the identity of the assailant. I understand from counsel for the accused Avis that the stance of his client at trial will be that the knives were obtained and the fatal stab wounds inflicted by the accused Winning.
16 It was common ground at the hearing of the present application that each of the accused participated in video-recorded records of interview. Avis and Winning gave a number of interviews. They initially told the same misleading story that the accused Harris entered her house and stabbed the deceased whilst they sat in Winning's vehicle. That version had neither of them being aware of what Harris was going to do and their involvement being limited to assisting Harris in the disposal of the body.
17 According to the Crown, both Avis and Winning subsequently resiled from this version of the relevant events and admitted that they both entered the house at the request of Harris. Winning stated that Harris wanted the deceased "bumped off". Avis stated that Harris said she wanted the deceased "dead, out of my life". Winning said that the purpose of entering the house was to slap the deceased a few times because of his behaviour towards Harris. Avis said that he and Winning entered the house in order to tell the deceased to leave Harris alone and to hit him if he then became violent.
18 It was common ground at the hearing before me that in the recorded interviews each of Winning and Avis blamed the other for the infliction of the stab wounds. Both admitted taking part in the disposal of the body and the concealment of incriminating evidence.
19 Harris' account to the police of what she did that night was that she walked home after the tavern closed and had another argument with the deceased. He chased her out of the house and she stayed away until the following morning. When she returned home, neither the deceased nor his car was there. She did not see the deceased again before travelling to
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- Sydney by bus the following week with her son. She denied knowing how the deceased was killed.
20 I have already noted that according to counsel for the Crown, reliance will be placed upon both s 7 and s 8 of the Criminal Code.
21 Section 7 provides that when an offence is committed those who may be charged with actually committing the offence include every person who actually does the act which constitutes the offence and every person who does any act for the purpose of enabling or aiding another person to commit the offence or every person who aids another person in committing the offence.
22 Section 8 provides that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
23 It is apparent from these provisions that it is open to the Crown to assert that each of the accused is implicated, but without having to nominate which of Avis and Winning inflicted the fatal stab wound. On the other hand, each of the accused has a vital interest in being allowed an opportunity to ensure that the nature and degree of his or her involvement, if any, is clearly understood.
24 The basis of the present application is that the Crown has no independent or objective evidence as to what occurred inside the house at the relevant time; that is to say, at the time the fatal stab wounds were inflicted.
25 Further, apart from the video records of interview, the Crown is said to have no evidence that two or more persons formed a common intention to prosecute an unlawful purpose in conjunction with one another. Without the video records of interview, the Crown has no evidence that either Avis, Winning or Harris prosecuted such a purpose.
26 Counsel for the accused Avis argued also that without the video record of interview of Winning, the Crown has no evidence that the death of Lister was of such a nature that its commission was a probable consequence of the prosecution of an unlawful purpose. The Crown case basically is that the deceased was killed on the night in question and any one or more of the three accused wilfully murdered him.
(Page 7)
27 Counsel for the accused Avis submits that in Winning's video record of interview on 14 October 1999 commencing at 6.05 pm Winning for the first time gives a version implicating the accused Avis. Further, at the top of page 65 of the relevant transcript, Winning says for the first time, "Then I saw Kevin with a knife in his hand, stabbing into him … ". Counsel submits that this evidence and the ensuing video records of interview given by Winning are so prejudicial to Avis, that they cannot be overcome by a direction by the trial Judge to the effect that the out-of-court statements of the accused Winning implicating the accused Avis cannot be received and should not be treated as evidence against the accused Avis. The submission is that if, at a joint trial, Winning's interview is received as evidence against him, the graphic nature of his admissions will prejudice Avis irretrievably.
28 Counsel for the accused Avis submitted further that notwithstanding any directions given by the trial Judge with a view to establishing that the out-of-court statements made by Winning are not admissible as against Avis, the jury, in effect, will be left with two versions of what occurred and will finish up deciding to believe one version or the other. This gives rise to a risk of the jury bringing in a verdict against Avis on the balance of probabilities rather than to the required standard of proof beyond reasonable doubt.
29 I have already drawn attention to the rule that where persons are jointly charged with an offence they can be jointly tried. It is apparent from s 624 of the Code, however, that there is a discretion to order a separate trial. The decided cases indicate that the discretion must be exercised judicially, and in its exercise the trial Judge must consider the interests of justice as well as the interests of the accused: R v Connell, Lucas & Carter (No 1) (1992) 8 WAR 518.
30 There are various matters of public interest which must be considered. 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. Other considerations concern the public expense of separate trials (which should not, however, be the major concern), the desirability of reaching finality as expeditiously as possible, and the convenience of witnesses: Criminal Law Western Australia at 3405.
31 These principles are reflected in the reasoning of a majority of the High Court in Webb v R (1993) 122 ALR 41. In that case the appellants,
(Page 8)
- Webb and Hay, were charged with the murder of Patrick. The three of them had been drinking together in a bus shelter one evening and Patrick was found dead the following morning from a savage beating. When interrogated by the police, Webb gave several versions of events, but he did not give evidence at the trial. There was no statement by Hay adduced in evidence at the trial. The High Court was not prepared to hold that separate trials should have been ordered. Toohey J said this at 76:
"The justification, indeed the alleged necessity, for separate trials lies in the fact that in three records of interview with Webb, which could be expected to be and were adduced in evidence by the prosecution, Webb made assertions that Hay had engaged in a violent and sadistic attack on the deceased. And, it was said, although the trial judge warned the jury that this evidence was not admissible against Hay, such a direction could not cure the overwhelming prejudice inevitably caused to Hay.
King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other.' What King CJ referred to as 'strong reasons of principle and policy' were discussed by his Honour in R v Collie. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused."
"In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another
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- way, whether improper prejudice has been created against an accused.
In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed:
'That is a common feature of a joint trial and does not of itself render separate trials necessary.'
Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred."
33 The reasoning of the High Court in Webb v R (supra) demonstrates that separate trials will not be ordered as a matter of course. The rule that there should be a joint trial where the accused are charged with committing a crime jointly is not easily displaced: Holden (1990) 52 A Crim R 32. Where an application is made for separate trials, the question is whether the joint trial has the potential to bring about a miscarriage of justice: R v Wood [2000] WASC 64.
34 The decided cases suggest that where the defence of one of two joint accused will involve an attack on the other, that is a relevant, but not a decisive, circumstance. It is a circumstance which frequently arises in a joint trial. It is a matter for the exercise of the discretion of the trial Judge in each particular case.
35 There are a number of cases arising under the Criminal Code in Western Australia where the discretion to order separate trials has been examined.
36 For example, in Rintel v R [1986] WAR 175, where two persons were tried together and one made an out-of-court statement prejudicial to the other which would have been inadmissible if the latter were tried separately, the Court of Criminal Appeal held that the discretion to order separate trials should have been exercised, notwithstanding that it was open to the trial Judge to direct the jury on the non-admissibility of the statement. One has to appreciate, however, that in Rintel the offences did not arise out of the same or closely related acts.
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37 In another case, where two persons were jointly indicted for wilful murder, the trial Judge was prepared to order separate trials: R v Berghella & Anor, unreported; SCt of WA; Library No 940313; 3 June 1994. I pause to note, however, that in Berghella there was a significant difference between the evidence against each accused. The principal evidence against each accused consisted of the testimony of an accomplice. Corroborative evidence was available as against one of the accused but not as against the applicant for a separate trial.
38 In the recent case of R v Wood (supra) two persons were charged with jointly committing murder. The first made a statement to the police which would be inadmissible against the second if that second person was tried separately. The Chief Justice held that it may not be necessary to order separate trials where the trial Judge is able to instruct the jury to put the statement to one side when considering the verdict against the second person. The direction should be sufficient to avoid prejudice against the second person.
39 In that regard, it seems, one should take account of the view expressed by Barwick CJ in Demirok v The Queen (1977) 137 CLR 20 at 22 that in the administration of the criminal law, it must be accepted, until the contrary is demonstrated, that the jury accept and faithfully apply the Judge's directions. The law cannot be administered upon any other basis.
40 Let me refer also to Seel v R, unreported; CCA SCt of WA; Library No 960199; 12 April 1996. The accused in that case admitted stabbing the deceased after being told by his female partner, the co-accused, that she had been molested by the deceased. Out-of-court statements made by the co-accused were received in evidence at the joint trial, albeit that such statements revealed the accused's intention to kill the deceased. An appeal against the conviction was dismissed upon the basis that the judge's directions to the jury that the statements of the co-accused were not evidence against the accused were sufficient.
41 It emerges, then, that where an application for a separate trial is made on the basis of the likely prejudicial effect of out-of-court statements of a co-accused, it is for the trial Judge to balance the effect of the prejudicial statement on the mind of the jury against the likely effectiveness of the usual warnings, but the general rule that persons jointly charged with an offence should be jointly tried is not easily displaced: Holden (supra) per Perry J at 44. The mere fact that some evidence against one of the accused may be admitted in a joint trial which would be inadmissible against the other in a separate trial does not, of itself, warrant the separate
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- trial of the accused: R v Guldur (1986) 8 NSWLR 12 at 16; Webb v R (supra).
42 I digress briefly to note that this approach was approved in R v Grondowski [1946] 1 KB 369. That was a case in which the appellants were jointly indicted on a charge of murder arising out of a common enterprise to rob the deceased. Both appellants admitted being present at the time of the shooting, but each put the blame on the other. An appeal against a refusal of separate trials failed.
43 Lord Goddard CJ noted that where two persons are jointly indicted for a crime alleged to have been committed in pursuance of a common enterprise and an application for a separate trial is made on the ground that an essential element of the defence would consist in the making of an attack on a fellow prisoner, the granting or refusing of the application is a matter of discretion. He said this at 371:
"Each prisoner sought to put the blame for the actual shooting on the other and each denied that he intended to offer violence or even to rob. There was ample evidence from which the jury could infer a common intention to rob and to use such violence or other means as was necessary to effect that purpose. Which of the two actually fired the fatal shot was therefore immaterial, but, of course, the jury might have found that one or other was present with no intention of robbing the deceased but merely as a peaceful passenger in the car. Prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise, it is obviously right and proper that they should be jointly indicted and jointly tried, and in some cases it would be as much in the interest of the accused as of the prosecution that they should be. Suppose, for instance, that the defence of one was that he or she was acting under the positive duress of the other. It would be obviously right that they should be tried by the same jury, who might see in one prisoner a harmless or nervous looking little man or woman, and in the other a savage brute whom they might deem capable of forcing his co-prisoner against his will into assisting in a crime."
44 When the principles I have drawn attention to are applied to the circumstances of the present case, there are various considerations to be addressed.
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45 According to the Crown, there has been no sufficient reason advanced which would justify separate trials in the circumstances of the present case. There is a public interest in co-offenders being tried jointly. The circumstances of the case do not justify the expense of two, possibly three, separate trials if a separate trial was ordered with respect to the accused Avis.
46 The Crown submits that there is a real likelihood of inconsistent verdicts should the trial of Avis be separated from the trial of Winning. It is not beyond the bounds of possibility that both accused could be acquitted by each jury on the basis that the other was solely responsible for the homicide.
47 The Crown submits further that the circumstances of this matter are not such that there is a real potential to bring about a miscarriage of justice if the three accused are jointly tried. This is not a case where the evidence against each of the accused is significantly different and the present case can, therefore, be distinguished from R v Berghella (supra). It is not a situation in which the case against Avis, as the applicant for a separate trial, is significantly weaker than the case against Winning.
48 On the other hand, as I have already indicated, counsel for the accused Avis submits that the out-of-court statements made by Winning, that would otherwise be admissible against Avis, are so highly prejudicial that they cannot be overcome by directions to the jury that these statements should not be treated as evidence against Avis. There is a further risk, counsel argues, that the jury will finish up deciding to believe one version or another, and thus, in effect, bring in a verdict upon the balance of probabilities, contrary to the requirement that the Crown case against each accused be established beyond reasonable doubt.
49 Against this background I must now draw together the threads of earlier discussion. When two or more persons are charged in the same indictment, the Court may, on the application of any of the accused persons, direct that the trial of any of them shall be had separately from the others. The general rule that there should be a joint trial where the accused are charged with committing a crime jointly is not easily displaced, but separate trials should be granted if to refuse them might result in a miscarriage of justice.
50 The likelihood that out-of-court statements made by a co-accused which would be inadmissible against the applicant for a separate trial if he
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- were tried separately might form part of the evidence at a joint trial is not sufficient of itself to warrant the separate trial of the applicant accused.
51 Nonetheless, in a case where each accused tries to cast the blame on the others, a separate trial might be ordered by the trial Judge in the exercise of his discretion if the out-of-court statements are so highly prejudicial to the applicant accused that it would be impossible for the prejudice to be overcome by directions given to the jury that the statements about what the applicant accused allegedly said or did were not admissible and should not be regarded as part of the case against the applicant accused.
52 In circumstances where the evidence against each accused was significantly different, or the case against the applicant accused is weaker, a warning to the jury may not be sufficient to avert the possibility of a miscarriage of justice with the result that a separate trial may be warranted.
53 In the present case, I must proceed upon the basis of the materials presently before me including the depositions and the submissions made by counsel for the Crown and counsel for the accused Avis. I must assume that in pleading not guilty each of the three accused requires the Crown to prove the constituents of its case beyond reasonable doubt and that no admissions will be made.
54 It follows from earlier discussion that there is a real likelihood that if the indictment against each accused is presented at a joint trial, then out-of-court statements made by Winning as to what happened on the subject premises on the night in question will be admitted as part of the Crown case against him. Those statements include passages suggesting that the accused Avis was the person at the scene who struck the fatal blows. Statements of this kind, although not admissible against Avis, will undoubtedly have a prejudicial effect upon the Avis defence.
55 In reviewing the relevant considerations, however, I am also obliged to take account of the other factors mentioned earlier. The Crown case is that both Winning and Avis were in the house at the same time and the allegations against them are essentially the same, save for the controversy as to who struck the fatal blow.
56 There is little difference between them in regard to the evidence to be adduced in support of the Crown case, and it cannot be said that the case against Avis is significantly weaker than the case against Winning. Segregation of the evidence against each accused will be a critical matter
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- at the trial, but a jury would, in my view, be capable of recognising a distinction between evidence against Avis and the other accused.
57 Avis argues that the graphic nature of the out-of-court statements made by Winning may have an unduly prejudicial effect, and weigh heavily against Avis. I am not persuaded to this point of view. The out-of-court statements in question were made in the course of lengthy interviews and in a context where both protagonists changed their stories. It will be for the jury to make an appraisal of the personalities involved and to decide what weight should be given to utterances made at various stages of the investigation.
58 In my view, having balanced the various considerations, full and careful directions to the jury that out-of-court statements made by one accused are not admissible against another accused will be sufficient to ensure that the accused Avis receives a fair trial. I take account of the reasoning in Webb, Holden, Seel and Wood where the courts, in similar circumstances, were not persuaded of the need for separate trials. Likewise, I am not persuaded that the jury in the present case will, in essence, choose between alternative versions of what took place and finish up by bringing in a verdict on the balance of probabilities. That, too, is a risk that can be obviated by full and careful directions to the jury as the nature of their responsibilities.
59 In summary, then, in my view, the reasons which have been advanced in support of the application by the accused Avis for separate trials are not sufficient to justify the exercise in his favour of the discretion allowed for by s 624 of the Criminal Code. The general rule that there should be a joint trial where the accused are charged with committing a crime jointly should be applied in the circumstances of the present case (where each of the accused tries to cast the blame on the others) as a means of avoiding inconsistent verdicts. Accordingly, the application by the accused Kevin Leslie Avis to have a trial separately from the accused Mark Douglas Winning and Julie Anne Harris will be dismissed.
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