R v Featherstone; R v Bloxsome

[2019] ACTSC 66

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Featherstone; R v Bloxsome

Citation:

[2019] ACTSC 66

Hearing Date:

19 March 2019

DecisionDate:

19 March 2019

Before:

Elkaim J

Decision:

The application is dismissed.

Catchwords:

CRIMINAL LAW – Pre-trial application – co-accused – application for separate trials – opposed by the Crown – sexual assault matters relating only to one co-accused – unfair prejudice

Cases Cited:

R v Demirok [1976] VR 244

R v Hoyle [2018] ACTCA 42

Parties:

The Queen (Crown)

Damien Featherstone (First Defendant)

Rodney Bloxsome (Second Defendant)

Representation:

Counsel

Mr A Williamson (Crown)

Mr J Lawton (First Defendant)

Mr J Stewart (Second Defendant)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Robertson Solicitors (First Defendant)

Boxall Legal (Second Defendant)

File Number:

SCC 164 of 2018; SCC 165 of 2018; SCC 166 of 2018; SCC 184 of 2018

Publication Restriction:

Not to be published until after the trial

ELKAIM J:

1. This matter involves the joint trial of Mr Damien Featherstone and Mr Rodney Bloxsome. They face an indictment containing 18 counts although each count does not allege a joint offence. An analysis of the indictment reveals that Mr Featherstone is the sole accused in four of the counts. Mr Bloxsome is the sole accused in six of the counts. The two accused are jointly charged in one count. There are four counts in which the two accused are jointly charged but also with a third person, NQ. There are two counts in which Mr Featherstone is jointly charged with NQ, but without Mr Bloxsome.

1. It was pointed out however that NQ has entered pleas of guilty concerning their involvement and is to be a witness for the Crown. I was also told that Mr Featherstone has indicated a willingness to admit some of the charges against him, although it is not entirely clear which charges. He will still face trial on serious allegations. There will no doubt be a fresh indictment.

1. By an application dated 7 March 2019 Mr Featherstone has applied for orders which would entitle him to a separate trial in respect of some of the counts. Primarily however he wishes to have his trial heard entirely on its own. In this case he would be entitled to elect to be tried by a judge alone. This option would be denied to him in a joint trial, in particular because the joint trial will involve sexual offences for which a judge alone trial is not available.

1. The Crown opposes the application pointing out that the onus is on the applicant to establish the entitlement to have a separate trial or for the indictment to be severed. The Crown says, notwithstanding that each accused may face separate charges the background to the offences are derived from a “common factual matrix” so that to have a severance or separate trials would result in a factual confusion in which relevant parts of the alleged activities of the accused, if excluded, would not allow the Crown to…