R v Collie - [2006] SASC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v COLLIE & ANOR
Judgment of The Honourable Justice Bleby
13 January 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
Application for separate trials - two defendants jointly charged with two counts of murder - each defendant made an application for separate trials but on different grounds - considerations necessary to justify a separate trial - whether applicants fear of retribution in the giving of evidence sufficient - inadmissibility of prejudicial evidence against one accused - case against that accused entirely circumstantial - whether any prejudice can be cured by directions to a jury - whether applicant would suffer incurable prejudice at joint trial - likelihood of inconsistent verdicts arising from separate trials - co-accused would suffer incurable prejudice at joint trial - trials severed.
R v Conlon and Conlon (1982) 30 SASR 176; R v Leaman (1987) 28 A Crim R 104; R v Jones and Waghorn (1991) 55 A Crim R 159, applied.
R v Harbach (1973) 6 SASR 427; R v Collie, Kranz and Lovegrove (1991) 56 SASR 302; R v Glover (1987) 46 SASR 310; R v Darby (1982) 148 CLR 668, considered.

R v COLLIE & ANOR
[2006] SASC 4

BLEBY J: Mr and Mrs Collie were jointly charged with the murder of John Douglas Powers and Leila Hoppo. Both accused applied for orders for separate trials. On 7 April 2004 I granted Mr Collie’s application for severance and indicated that I would not have granted Mrs Collie’s application. I did not publish reasons at the time as it would have been inappropriate to do so.
I presided at the subsequent trial by jury of Mr Collie. He was convicted on both counts of murder on 1 July 2004. His appeal against conviction was dismissed, by a majority, on 20 April 2005.[1]
[1] R v Collie (2005) 91 SASR 339; [2005] SASC 148.
When Mrs Collie was arraigned before me on 9 January 2006 her plea of guilty to two charges of assisting an offender was accepted by the DPP in satisfaction of the information alleging the two charges of murder.
The reasons which follow are those which I prepared at the time but did not publish, pending completion of the trials of both accused.
The bodies of the two victims were found in their home on Sunday 20 January 2002. They had both been shot in the head twice at close range. The prosecution alleges that both accused were present at the shooting. On the prosecution case there were no other witnesses to the shooting.
Mr and Mrs Collie have both applied for separate trials but for different reasons and on different grounds. The grounds of Mr Collie’s application are that he will suffer incurable prejudice at a joint trial at which evidence will be admitted which is admissible against Mrs Collie only.
The grounds of Mrs Collie’s application, made in open Court, are lengthy, but because of their significance I set them out in full:
It is submitted that the accused Samantha Collie will not be able to have a fair trial if tried with the co-offender, her husband.
On the DPP case the co-offender Garry Collie shot and killed two persons. The case against the accused is that she was not the person who fired the shots but had a lesser role.
The defence of the accused will necessitate her implicating her co-offender in the shooting of the two victims. The accused believes that if she implicates the co-offender in any way she will be harmed.
In support of the application the accused will call evidence of the relationship between herself and Garry Collie which includes a history of assaults and threats against her life, her understanding of assaults and threats to the lives of others, her knowledge of his involvement in another murder charge, and her knowledge of his involvement in the shooting that led to the deaths of the victims in this matter and subsequent threatening and intimidating behaviour that she has evidenced since they were jointly charged with the murder in 2002.
She knows, and the DPP does not dispute this, that Garry Collie is a member of an outlawed motorcycle group. She is now aware through evidence at the bail application for Garry Collie in November 2003 that he has a personality disorder.
The DPP led evidence of his access to firearms and charges that arose as a result. She is aware of this access.
Such a fear is not dissipated by his being in custody. She fears that harm will be occasioned upon her if he is convicted as a result of her giving evidence implicating him, regardless of the admissibility of such evidence.
Further the applicant would not be fit to instruct if she was in the same courtroom as the co-offender for the hearing of the severance application and for the trial.
The only relevant disadvantage to the DPP in the granting of the application is the hearing of two trials. The financial cost to the state is, it is submitted, the only factor that is to be weighed against the applicants claim that she will not be able to have a fair trial without severance.
In short, she has a fear of harm to herself as a result of the evidence she would want to lead clearly implicating Mr Collie in the murders. It became evident that such was her fear that she would refuse to give evidence at a joint trial, and would thereby be prejudiced in her defence.
In addition, Mrs Collie also sought to have her application for a separate trial be heard in a closed court and in the absence of Mr Collie. Her refusal to give evidence extended to giving evidence in Mr Collie’s presence in support of her application for a separate trial.
The Prosecution Case
What follows is based on the written depositions which have been filed. It would seem that Mr Powers, with the assistance of his partner, Ms Hoppo, was heavily involved in drug trafficking and in transporting drugs between Adelaide and various places in northern New South Wales and Queensland. A number of people had visited their house, apparently for the purpose of drug trafficking during the course of Saturday 19 January 2002. There is evidence that the victims were about to embark on a trip to Queensland, taking a quantity of cannabis with them. The prosecution alleges that they were shot in the lounge room of their house some time between about 5.10 pm and 5.20 pm on that Saturday afternoon. Mr and Mrs Collie had both been present in the house during the afternoon. They were friends of Mr Powers and Ms Hoppo. They had been seen there by others who were there doing business with Mr Powers.
The time of the shooting is crucial to the prosecution case. In order to prove the case it is necessary to establish the time of the shooting and that the defendants were present at the house at that time. The prosecution says that the period during which the shooting could have occurred is established by the times of two telephone calls made on mobile phones.
One of the witnesses, Mr Maiorano, having effected a drug deal with Mr Powers, left the house and immediately made a telephone call on his mobile phone. That was at 5.09 pm. Powers was alive when Mr Maiorano left the house.
The witnesses Darren Horbury and Marc Davies arrived at the house by prior arrangement with Mr Powers to do another drug deal. No-one answered the door. Dogs barked inside the house when they knocked. Blinds on some of the windows were drawn and the television was on. The cars of Mr Powers and Ms Hoppo were at the front of the house. Having been unable to raise anyone inside, Mr Horbury, on his mobile phone, telephoned Mr Powers’ number at 5.24 pm while outside the house. The telephone was not answered.
After that time there were no calls made from any telephones owned by the victims, and no calls either to the landline in the house or to their mobile telephones were answered. The receiver of the landline telephone in the house had been removed from the handset.
Other witnesses attended the house between 7 and 8 pm by arrangement with Ms Hoppo, and no-one answered the door. Mr Horbury returned to the house later that evening and nothing had changed. There is also evidence that some cannabis left with the Powers by Mr Maiorano late in the afternoon was in the same condition when police entered the house on the Sunday as it was when the witness left it in the house at about 5.00 pm on Saturday. It had not been packaged for transport to its intended destination in Queensland.
It is principally from these facts that the prosecution will invite the inference that the shooting occurred between Mr Maiorano’s telephone call and the unanswered call by Mr Horbury.
Whether Mr and Mrs Collie were at the house at that time is also a matter of crucial importance to the prosecution and is also a matter of inference. They had been seen in the house by others visiting it late that afternoon. Mr Maiorano had seen two people, whom he did not know, in the lounge room as he left. The prosecution case is that they were Mr and Mrs Collie.
While Mr Horbury and Mr Davies were at the house, a man whom the prosecution alleges was Mr Collie appeared at the front of the house. Mr Collie is alleged to have said of Mr Powers that he was not at home and that he had seen him “jump into a brown Commodore”. The person alleged to be Mr Collie also said that he had “had a fight with his Missus”, and that she had thrown his car keys in the bushes. He asked if they would help him look for the keys, which they did. Mr Collie then walked out of the driveway out of sight, and the two visitors then saw him drive off in his own car. As he left he shouted to Mr Horbury, “If you see my Missus tell her to ring me”.
The prosecution alleges that after the two victims were shot, Mr Collie went to the house of a Mr Bevelander, the rear yard of which backed onto the victims’ property. He did so to retrieve his car keys which had been thrown there. Mr Bevelander helped him retrieve the keys. He estimated that this was between 5 pm and 5.30 pm. The man said to be Mr Collie left via the front of Mr Bevelander’s property. The prosecution alleges that it was following that that Mr Collie appeared at the front of the victims’ house, consistent with his having come from Mr Bevelander’s house, and had the conversation with Messrs Horbury and Davies. The Crown alleges that he then told them two lies upon which the Crown relies as being told out of a consciousness of guilt. The first was that he had had an argument with Mrs Collie and said that he was looking for the car keys, whereas by then he had already found them. The second alleged lie was that he said he had seen Mr Powers leaving the house. That too was a lie because it is alleged that Mr Powers, as Mr Collie well knew, was then in the house and was dead.
There are other strands of circumstantial evidence, such as the fact that Mr and Mrs Collie had had drug dealings with the victims, that there had been some animosity at least between Mr Collie and Mr Powers over a gun belonging to Mr Collie which had been confiscated by police from Mr Powers in New South Wales, and a suggestion of an unpaid drug debt.
At the time of the shooting, Mr and Mrs Collie had been married for almost a year. Mr Collie had a car but did not normally drive it because of a shoulder injury and the fact that he did not hold a driver’s licence. Mrs Collie did most of the driving.
There is some highly significant additional evidence against Mrs Collie in the form of statements that she made to the police and to her father after the event. There are inconsistencies in the statements, and Mrs Collie says that the first statement given to the police was untrue, designed to mislead them. The effect of her subsequent statements, however, is that she was present in the lounge room of the house and saw Mr Collie shoot Mr Powers and Ms Hoppo. She immediately ran out through the back door through the back yard and climbed over the back fence into a vacant allotment. She was pursued by her husband who was shouting at her. She threw the car keys back over the fence, but they landed in Mr Bevelander’s backyard. She intended to walk to a friend’s place and was subsequently picked up by her husband driving the car, and they went home. They then went to her parents’ house and spent most of the evening at the Walkers Arms Hotel.
The statements to the police and to her father, while normally admissible against Mrs Collie, are not admissible against Mr Collie.
Mr Collie’s application
As can be seen from the above, the case against Mr Collie is entirely circumstantial. There are weaknesses in it, which Mr Collie is likely to want to exploit.
It is apparent that the credibility of many prosecution witnesses will be under strong attack. Many of the witnesses acknowledge involvement in drug dealing with Mr Powers. In particular this applies to Maiorano, Davies and Horbury, witnesses crucial to proving the activities, identity and presence of Mr Collie at the house at the relevant time. Davies and Horbury can be shown to have lied to the police. Their declarations manifest some uncertainty as to the time at which they came to the house on the Saturday afternoon. They were at the house for the purpose of trading in drugs. Other witnesses who deposed to the movements of Mr and Mrs Collie earlier in the day are in a similar situation.
Mr Collie will be seeking to cast doubt on the time of the shooting and the times when he was seen at or near the premises. The pathology evidence suggests that the time of death of the victims was between 7.30pm on the Saturday evening and 5am on the Sunday. However, the pathologist acknowledges that the methods used and weather conditions at the time render those estimates unreliable.
Mr Bevelander, the neighbour, cannot be certain of the precise time of his visitation by the person unknown to him. He did not hear any gunshots during the afternoon. He went to bed at about 11.30pm on Saturday. He says he is a heavy sleeper, but he and his partner were both woken up during the night by a loud noise. He did not know what it was.
The Crown case against Mr Collie relies on an inference dependent on the fact that he was in the house shortly before the time at which it is alleged that the shootings must have occurred and that he was outside the front of the house shortly after that time, and that while he was outside the house he told lies which demonstrate a conscious of guilt. Being a circumstantial case, the jury will have to be satisfied beyond reasonable doubt that the only inference available on the evidence against Mr Collie is that he was guilty of the shooting. From the defence point of view the case will be that no such inference can safely be drawn either as to Mr Collie’s presence or as to the time of the shootings.
Mrs Collie has forecast a challenge to the admissibility against her of her statements to the police. The prosecution claims that the first of them, containing the false information, is admissible against both defendants, when taken in conjunction with conversations between them heard by the means of a listening device, to prove a common purpose in the killing of the deceased and of a subsequent arrangement for Mrs Collie to make a false statement to the police. Even if the evidence of the conversations with the police is excluded, there appears to be no ground to exclude evidence of a conversation Mrs Collie had with her father in which she described the events in the manner set forth above.
In those circumstances, Mr Collie argues that, with a fragile circumstantial case against him, he would suffer irremediable prejudice by the evidence to be led against Mrs Collie, a prejudice which could not be cured by any direction given to the jury.
In the first place, the evidence of Mrs Collie’s admission that she saw Mr Collie shoot the victims is, of course, highly prejudicial to Mr Collie. Mr Boylan QC, for Mr Collie, argues that it would be impossible for members of a jury to keep that evidence out of their minds when considering the circumstantial evidence against Mr Collie, no matter how clearly or how often they were directed by the judge that they should ignore it when considering the case against him. Mr Boylan further points out that, in assessing the credibility of prosecution witnesses, especially that of Davies and Horbury, and in particular whether they can be believed as to the events at the front of the house, the jury would inevitably be conscious of the conversation led against Mrs Collie which would explain her absence at that time and would tend to confirm their story. He argues that the jury could not properly assess the weight of the evidence as to the time of death without excluding from their mind Mrs Collie’s assertion to her father that Mr Collie had shot both the deceased about the time when the deceased stopped answering their telephones. None of these effects, he submits, could be cured by direction.
Indeed, Mr Boylan submits that the directions that would have to be given to the jury could only result in misunderstanding and confusion. In assessing the credibility of Messrs Horbury and Davies in the case against Mr Collie, the jury could only take into account evidence properly admissible against Mr Collie. Yet, in assessing their credibility for the purposes of the case against Mrs Collie they could take into account the confessional evidence admitted against Mrs Collie, thereby possibly placing the jury in the anomalous and quite untenable situation of having to decide to accept their evidence in the case against Mrs Collie but of being not satisfied of its veracity, because it had nothing to support it, in the case against Mr Collie.
Secondly, it is argued that the prejudice will be compounded by the fact that Mrs Collie is unlikely to give evidence at Mr Collie’s trial, whether that is a joint trial or a separate trial. Mrs Collie was previously given an indemnity against prosecution if she gave evidence at Mr Collie’s trial. She refused to give evidence. The trial was adjourned and she was then indicted for murder along with her husband. In that situation she is obviously not a compellable witness at Mr Collie’s trial. The indication is that she will continue to refuse to give evidence on a joint trial. Mr Collie will therefore be denied any opportunity of cross-examining her on the version of the facts given to her father. The fact that her assertions are unchallenged can only increase their prejudicial effect.
The third aspect of the case which is likely to render it unfair for Mr Collie to have a joint trial is that it is evident from the conversation with her father that Mrs Collie has lived in fear of Mr Collie. They are now separated and estranged. There is other evidence in the depositions that Mr Collie has a disposition towards violence. Even if Mrs Collie does not give evidence herself, there is every likelihood that she will wish to introduce such evidence in cross-examination as part of her case and even to lead evidence of violence towards her, whether or not such evidence would be admissible against Mr Collie if led by the prosecution. Such evidence, if led, would be gravely prejudicial to Mr Collie.
Mrs Collie’s application
I have already set out the grounds on which Mrs Collie made her application for a separate trial. I decided to hear, in camera, the application by her that her application for a separate trial should itself be heard in camera or in the absence of Mr Collie.[2] She gave evidence in support of her application that the application for separate trials be held in camera. At the conclusion of her evidence in camera I expressed certain views about the success of her application on the grounds on which it was made, and on the assumption that Mrs Collie’s fears were genuinely held. As will become apparent, it is not necessary for me to form any view on whether or not those views are genuinely held, and it was not necessary to decide whether her application for a separate trial should be held in camera. It is not necessary to elaborate further on the details of Mrs Collie’s application.
[2] The Full Court has since held that this procedure was inappropriate: R v Collie (2005) 91 SASR 339.
The relevant principles

The principles governing consideration of an application for separate trials are well known. The Court of Criminal Appeal in R v Harbach[3] explained three of them:
1.Where accused are jointly charged, prima facie there should be a joint trial.
2.A joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against one of the accused, although admissible against the other, will be before the jury.
3.A joint trial may be ordered notwithstanding that one or both of the accused is trying to cast the blame for the crime on the other.
[3] (1973) 6 SASR 427 at 432.
In R v Collie, Kranz and Lovegrove[4] King CJ identified other relevant considerations:
The reasons why there should ordinarily be a joint trial of accused persons charged with committing the crime jointly are expressed in the judgment of the Full Court of the Supreme Court (Vic) in R v Demirok (1976) VR 244 at 254:
‘The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. 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.’
In R v Glover (1987) 46 SASR 310 at 312 I expressed the principle as follows:
‘I take the view that where two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is, generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together’.
[4] (1991) 56 SASR 302 at 308-309.
King CJ then went on to consider a passage from the joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ in R v Darby[5]. Because it has some significance to the application of the principles in this case, I repeat what was said by the High Court and King CJ’s comments on it. The Judges of the High Court said:[6]
In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada, in Guimond v The Queen (1979) 44 CCC (2d) 481 requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice. In cases where there is no material distinction in the evidence admissible against both alleged conspirators, the trial judge’s advice to the jury that they will either convict or acquit both accused will continue to be appropriate not because of any technical rule but because of the circumstances of the case.
[5] (1982) 148 CLR 668 at 678.
[6] Ibid.
Of that passage King CJ said in R v Collie, Kranz and Lovegrove:[7]
I do not read that passage as affecting the principles discussed in the cases which I have cited. Their Honours in R v Darby (supra) were considering the embarrassment to a jury in the trial of accused persons jointly charged with conspiracy where the cases against the alleged conspirators are significantly different. The problem there arises from the fact that the agreement between the alleged conspirators is the gist of the crime charged. It may be very difficult for a jury which finds that A is guilty of conspiring with B, to find also, because of the difference in the evidence which is admissible against B, that B is not guilty of conspiring with A. For that reason it may be desirable, perhaps even necessary, to achieve a just result in conspiracy cases in which the evidence against the alleged conspirators is significantly different to try them separately. No doubt the same problem may be present to some degree in certain cases of persons accused of committing a crime, other than conspiracy, jointly, and the difference in the evidence admissible against each accused may be an important factor in such cases in the exercise of the discretion as to whether to order separate trials. I do not consider, however, that the passage cited above from Darby’s case in any way modifies the accepted principles with respect to joint trials and particularly the principle that ordinarily persons accused of committing a crime jointly ought to be tried jointly.
[7] (1991) 56 SASR 302 at 309-310.
These considerations have relevance for this case because, although the accused are charged jointly with the two murders, the prosecution case against them is very different. It has never been suggested by the prosecution that Mrs Collie was directly involved in the killing. On the prosecution case her role has only ever been that of an accessory, albeit as part of a joint enterprise with Mr Collie. As has been seen, the evidence against her is very different from that of the evidence against Mr Collie, and some of the most significant evidence against her is not admissible against Mr Collie. Therefore, whilst it is undoubtedly the case that in ordinary circumstances persons accused jointly of committing a crime should be tried jointly, there will be circumstances, and I believe that this case is one of them, where because of circumstances like those I have mentioned, separate trials will be necessary in the interest of justice and to avoid what would almost certainly be an unfair trial to one of the accused.
Before considering these principles in relation to Mr Collie’s application, it is convenient to deal with the grounds of Mrs Collie’s application.
The grounds of Mrs Collie’s application
Mrs Collie’s application is based essentially on a fear of harm to herself if she gives evidence in the presence of Mr Collie and in particular if her evidence were to play a part in the conviction of Mr Collie.
If Mrs Collie has a genuine defence which entails the giving of evidence which may, at the same time, bring an alleged murderer to justice, she should be allowed to give that evidence, to speak the truth freely, and to do so with the benefit of the various protections that the State offers to persons who are prepared to speak the truth. It is not necessary to list all those protections, but they relate to procedures during the trial itself and to various measures available to protect the identity of a witness in the community. Whether Mrs Collie is prepared to accept those protections is a matter for her. However, the mere fact that she may fear harm to herself because in speaking the truth she convicts Mr Collie, is no reason to order a separate trial from that of Mr Collie.
The Court cannot be held hostage to threats, whether real or perceived, of harm to witnesses who speak the truth. If the court were to succumb to a submission that it should mould its procedure to protect a witness from real or perceived threats of harm from those who have no respect for the law or for human life, then the law itself and the administration of justice will become hostage to thuggery and standover tactics. The Court cannot allow itself and those who appear in it, to become refugees from the truth by virtue of threats or of lawlessness or violence.
If a person who is accused of a serious crime considers it necessary for their proper defence that certain evidence should be led, then the Court must facilitate the leading of that evidence, and the Court and the instrumentalities of the State must do all in their power to eliminate any barriers to its presentation. However, that will not extend to yielding to possible threats designed to undermine the proper administration of justice.
Nevertheless, if, on a joint trial, the evidence which is required to be led in the proper defence of an accused person is not admissible against that person’s co-accused, and is evidence which would be highly prejudicial to the proper defence of that co-accused, such as to render the trial of that co-accused unfair, then there may be good reason, on other grounds, to sever the trials. In other words, I would not sever the trials because of Mrs Collie’s fears of retribution in the giving of her evidence, but I would sever the trials if the evidence to be led were to prejudice, irreparably, the fair trial of Mr Collie.
For those reasons I consider that there is no substance in the grounds of Mrs Collie’s application, even if she were genuinely to hold the fears which she has expressed.
The grounds of Mr Collie’s application
I turn to consider the substance of the grounds put forward on behalf of Mr Collie for the severance of the trials.
In normal circumstances the mere fact that evidence inadmissible against one accused is led at the trial will be insufficient to justify separate trials. The restricted use of that evidence can usually be explained in terms that are readily understandable and that are capable of application by most juries. However, the exceptional circumstances in this case include the fact that the case against Mr Collie is entirely circumstantial, that it has a number of obvious points of weakness which Mr Collie is entitled to exploit, that the case against Mrs Collie is not entirely circumstantial and that the evidence to be led against her, whilst inadmissible against him, in all the circumstances will be extremely prejudicial to him in a way that cannot be cured by directions to a jury.
In R v Conlon and Conlon[8] the charges concerned injury to a small child while in the exclusive care of its parents. The parents were jointly charged with maliciously causing harm and assault occasioning actual bodily harm. The wife’s statements to the police described in great detail how the child received the injuries at the hand of her husband. There was an unresolved question as to whether the evidence was admissible against the wife. The trial Judge proceeded on the footing that the greater part of the evidence would be led by the Crown, but that some may also be introduced through cross-examination at the instance of the wife’s counsel. It was a matter of some conjecture, without the confessional evidence, whether the injury was caused by the husband, by the wife or by both. The case for a common enterprise was “far from strong”. The case against the wife “as the actual perpetrator, going beyond a suspicion of guilt (was) not much stronger”. Of those considerations Cox J said:[9]
These considerations appear to me to be important in deciding the present application by Mr. Conlon for a separate trial. He faces the prospect, if his application is refused, of standing trial together with someone against whom the Crown has not, to say the least, a strong case but who will nevertheless provide an avenue for the introduction into the trial of a very great amount of highly prejudicial evidence against him, evidence which no-one would argue for a moment could be led if he were tried separately. Indeed, it is not beyond the bounds of possibility that, if the case against the two accused were to proceed jointly, it would transpire at the close of the Crown case that Mrs. Conlon would have to be discharged because a case to answer had not been made out against her. Of course, I have not heard the evidence or any argument on the point, and cannot express even a tentative view on that question at this stage of the proceedings. However, the possibility of the Crown running into difficulties of this kind cannot be dismissed out of hand, and in the particular circumstances of this matter I think it proper to bear that possibility in mind … I emphasize that this is not a decision resting merely upon the weight of the prejudicial evidence that would be introduced were the joint trial to proceed. What weighs with me critically is the nature of the Crown case and, in particular, its relative weakness so far as a joint enterprise is concerned and so far, also, as an individual case against Mrs. Conlon, who will be the avenue for the prejudicial evidence, is concerned. Given the state of the case against her, as disclosed by the depositions, it is not too much to say that, if the two accused were to be tried jointly, Mrs. Conlon’s objective role would for practical purposes be almost confined to acting as a stalking horse in the Crown’s case against her husband.
[8] (1982) 30 SASR 176.
[9] Ibid at 184-185.
No one case can ever be identical with another, but there are many parallels in this case. The case for a joint criminal enterprise is entirely circumstantial and not particularly strong. The case against Mrs Collie as the actual perpetrator is even weaker, especially on the evidence, which the Crown would lead, of statements of Mrs Collie to her father and to the police. It is that evidence, itself highly prejudicial to Mr Collie, that will also be the avenue for the introduction of further evidence also highly prejudicial to Mr Collie.
A not dissimilar situation arose in R v Leaman.[10] A husband and wife were jointly charged with murder. It was a circumstantial but a reasonably strong circumstantial case against the husband. The case against the wife was always as an accessory. There was a confessional statement by the wife implicating the husband, but in addition to that, the wife made an unsworn statement at the trial to the same effect described as “even more damaging to (the husband)”.[11]
[10] (1987) 28 A Crim R 104.
[11] Ibid at 112.
By a majority decision the Tasmanian Supreme Court held that there had been a miscarriage of justice and a re-trial was ordered.
This was not a case involving a preliminary ruling on joint or separate trials. The point was made that the trial judge had no way of knowing whether evidence would be led to the same effect as the wife’s confessional statement. All three Judges considered that the trial judge did not err in the exercise of his discretion in deciding that the trial should proceed as a joint trial. The decision was made on what in fact occurred at the trial, and there is no doubt that the unsworn statement was a significant influence on that outcome.
The question to be decided here is, without knowing precisely what course the trial will take, whether it is likely that in any event Mr Collie will not be able to have a fair trial unless the trials are separated. There is, of course, no possibility of an unsworn statement, but evidence is likely to be led of Mrs Collie’s confessional statements directly implicating Mr Collie. Crucial to the proof of Mr Collie’s guilt is proof that he was at the premises both immediately before and immediately after the time of the shooting alleged by the Crown. The credibility of those who give evidence of those events is likely to be under severe attack. Without Mrs Collie’s confessional statement, there is no evidence of Mr Collie being in the house at the time of the shooting or of her leaving the house. It is open to Mr Collie to use the latter fact to his advantage on a circumstantial case by suggesting that Mrs Collie cannot be excluded as a person who may have killed the two deceased, because what happened to her at the relevant time is unknown. The jury would be asked to exclude from their minds Mrs Collie’s confessional statements when they are asked to consider whether it is possible that the deceased may have been killed at some other time, a time at which the prosecution evidence will show that Mrs Collie was not at the premises. The jury would be asked to exclude that evidence from their mind in deciding whether there was some other hypothesis consistent with innocence in considering the case against Mr Collie.
Although there is no likelihood of Mrs Collie giving an unsworn statement, the confessional evidence of Mrs Collie would have a very similar effect if Mrs Collie does not give evidence at the trial. That is quite possible for a number of reasons. I cannot presume that she will give evidence. She may successfully submit no case to answer. She may choose, for a variety of reasons, not to give evidence herself. As long as she does not give evidence there is substance in what Mr Boylan submits.
However, if she does give evidence and if she stands by her story, that is evidence which will properly be admissible against Mr Collie and will be subject to cross-examination by him. Mr Boylan’s complaints would then lack substance. However, in that event there are other circumstances which come into play which would also render the trial substantially unfair to Mr Collie. I will return to discuss that situation below. It remains that if Mrs Collie did not give evidence at a joint trial, there is substance in Mr Boylan’s submission as to the irremediable prejudicial effect that the evidence inadmissible against Mr Collie would have on his case.
There is also substance in the submission as to the misunderstanding and confusion that would result in directions that would need to be given to the jury as to assessing the credibility of witnesses.
In R v Jones and Waghorn[12] the defendants were jointly charged with murder. After making statements to the police implicating Waghorn, Jones, in due course, made full admissions. Waghorn denied to the police any knowledge of or involvement in the killing. Jones made an unsworn statement at the trial. Waghorn did not give evidence. Issues in the case against Waghorn included his involvement in the murder and causation. Waghorn’s appeal on the basis that there should have been separate trials was successful. Not only did Jones’ statements to the police implicate Waghorn, but there were a number of other features which tipped the scales in favour of allowing the appeal. Jones’ statements suggested a motive for Waghorn to kill the deceased, when no motive was apparent from any other evidence led against Waghorn. The statements contained a less than veiled suggestion that Waghorn was capable of killing and was likely to kill his wife and his daughter. Jones’ statements also included evidence damning of Waghorn’s character, including evidence of a disposition to violence and murder. This latter evidence was of particular significance in a case where the Crown relied heavily on conduct of Waghorn showing a consciousness of guilt in its case on causation against Waghorn and on his involvement. The evidence was of a type which, so the Victorian Court of Criminal Appeal held, the jury could not be expected to keep out of their minds, even if given appropriate warnings, and would be likely, despite appropriate warnings, to accept the allegations as true.[13]
[12] (1991) 55 A Crim R 159.
[13] Ibid at 184.

That case has relevance for two aspects of this case. The first relates to the directions that would have to be given concerning the assessment of the credibility of a number of prosecution witnesses. In R v Jones and Waghorn the question of the credibility of a Mrs Maloney’s evidence was crucial. Smith J described the problem as follows:[14]
First, in considering the case against Jones, the jury would have considered, among other things, whether to accept Mrs Maloney’s evidence on the question of causation and on the question of whether Jones was acting in concert with or aiding and abetting Waghorn. It would have had little difficulty in accepting her evidence against Jones because it was extensively supported by his record of interview and his unsworn evidence. Thus, before considering the case against Waghorn the likelihood is that the jury would have accepted her evidence, evidence crucial to the case against Waghorn. It would then have been extremely difficult for the jury to consider afresh whether to accept her evidence against Waghorn. It may be doubted whether a specific direction to the jury would have been effective and none was attempted.
[14] Ibid at 180.
Of the same problem Crockett J said:[15]
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’ 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.
[15] Ibid at 164.
In this case, for example, the jury would be told that in considering the credibility of Messrs Horbury and Davies, in the case against Mrs Collie, they could take into account her confessional statements, and they might well use those to decide to accept the evidence of Horbury and Davies because of its apparent consistency with Mrs Collie’s reported statements. However, the jury would also have to be told that when assessing the credit of these witnesses in the case against Mr Collie, they would have to dismiss from their mind Mrs Collie’s confessional statements. That becomes an unreal and impossible direction.
The other significance of R v Jones and Waghorn concerns the content of Jones’ statements damning of Waghorn’s character, to the effect that Jones was terrified of Waghorn and believed that he had a disposition to violence and murder and was a professional criminal, which was evidence inadmissible on Waghorn’s trial. This evidence, together with the difficulty relating to the jury’s consideration of the credibility of Mrs Maloney on the two cases constituted a miscarriage of justice in Waghorn’s trial.
I have already dealt with the situation on the assumption that Mrs Collie does not give evidence. If she does give evidence, it is apparent from the grounds advanced in support of her application for a separate trial that the evidence proposed to be led by her in her defence may well include evidence of Mr Collie’s tendency of violence towards her and to others, including a confession to being involved in another murder, and other evidence damning of Mr Collie’s character, all of which is inadmissible against him. This evidence would properly be led by Mrs Collie and would be admissible on her trial in order to explain her own actions both at the scene and in respect of subsequent events. The evidence is designed to portray Mr Collie’s character in the worst possible light and to suggest that he has the ability and the inclination to commit crimes of the very type with which he is charged. It would be highly prejudicial to Mr Collie and to the defence of the charges against him. It would be inadmissible against him.
It would be difficult to conceive how members of the jury could possibly dismiss this evidence from their minds when considering the circumstantial case against Mr Collie, notwithstanding the strongest of directions from the trial Judge. It is the sort of evidence which, if led in any other circumstances, would justify the discharge of the jury and a re-trial.
In my opinion, these various objections to a joint trial are not outweighed by other relevant factors. It is not the sort of case where one defendant is likely to seek to cast blame on the other and where that can only be resolved by the jury hearing both sides. It has never been the prosecution case that Mrs Collie was directly involved in the shooting. The case against her has always only been as an accessory.
There will be the expense of two trials and the need to recall witnesses on both. There will be additional court time and the public expense of two trials. However, whilst it is always desirable to avoid such circumstances where possible, these cannot outweigh the prejudice that would occur if the matter proceeded as a joint trial.
As best I can tell on the depositions before me, there is little likelihood of inconsistent verdicts arising from separate trials. It would not be inconsistent for Mr Collie to be convicted and Mrs Collie acquitted, for Mr Collie to be convicted and Mrs Collie to be convicted nor for Mr Collie to be acquitted and Mrs Collie acquitted. The situation which might give rise to some anomaly on its face would be if Mr Collie were acquitted and Mrs Collie were convicted. However, closer analysis would suggest that that could only be as a result of evidence admissible only against Mrs Collie. For that result to occur, it would probably be on the basis of Mrs Collie’s liability as an accessory, the jury having to be satisfied that Mr Collie carried out the shooting. However, if that is so, it is likely to be based on Mrs Collie’s statements to the police or her own evidence at the trial. There must be some uncertainty as to whether she will give evidence. If she does not, the only likely basis for an inconsistent verdict would be as a result of evidence admissible against Mrs Collie and not admissible against Mr Collie. While there is some risk of a possible inconsistent verdict in one respect only, and then only if Mrs Collie gives evidence at her trial, again this does not outweigh the other factors which, in my opinion, require separate trials.
Accordingly, in my opinion, in the rather exceptional circumstances of this case, an order for separate trials is justified.