R v Featherstone; R v Bloxsome (No 2) - [2019] ACTSC 90

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Featherstone; R v Bloxsome (No 2)
Citation:	[2019] ACTSC 90
Hearing Date:	1 April 2019
DecisionDate:	1 April 2019
Reasons Date:	2 April 2019
Before:	Mossop J
Decision:	See [29]
Catchwords:	CRIMINAL LAW – PROCEDURE – application for separate trial – sexual assault allegations – previous application to sever dismissed – where refusal to sever leads to co-accused unable to elect for trial by judge alone trial – no prejudice in joint trial – application dismissed
Legislation Cited:	Court Procedures Act 2004 (ACT), ss 76, 76(2), 76(3) Evidence Act 2011 (ACT), s 192A Supreme Court Act1933 (ACT), s 68B(1)(d)
Cases Cited:	The Queen v AI, AD and JR [2013] ACTCA 16 R v Assim [1966] 2 QB 249 The Queen v CHS [2006] VSCA 19; 159 A Crim R 560 R v Demirok [1976] VR 244 R v Featherstone; R v Bloxsome [2019] ACTSC 66 R v Fernando [1999] NSWCCA 66 R v GG [2017] ACTSC 12 R v McBride [2007] ACTSC 8
Parties:	The Queen (Crown) Damien Featherstone (Accused) Rodney Bloxsome (Accused)
Representation:	Counsel A Williamson (Crown) J Purnell SC and J Dempster (Accused - Featherstone) J Stewart (Accused - Bloxsome)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Accused - Featherstone) Boxall Legal (Accused - Bloxsome)
File Numbers:	SCC 164 of 2018 (Featherstone) SCC 165 of 2018 (Featherstone) SCC 166 of 2018 (Featherstone) SCC 184 of 2018 (Bloxsome)

MOSSOP J:

Introduction

Mr Damien Featherstone made an application (dated 31 March 2019) to sever from the present indictment Counts 1 and 5. Those are the charges which he is facing to which he will plead not guilty. Count 1 is a count arising from an allegation that Mr Featherstone shot Justin Diaz at a house in Narrabundah. Count 5 is a count of unlawful confinement of a person who I will refer to as the complainant, jointly committed by Mr Featherstone and his co-accused Mr Rodney Bloxsome. There are a total of 15 counts in the indictment that will not be discontinued by the Crown. Mr Featherstone has pleaded guilty to Counts 2, 11, 12, 13, 14 and 15.

His co-accused, Mr Bloxsome indicated that he would plead not guilty to counts 3, 4, 5, 6, 7, 8, 9, 10 and 11 but would plead guilty to counts 12, 13 14 and 15. Among the charges to which Mr Bloxsome indicated an intention to plead not guilty were three counts of sexual intercourse without consent (counts 7, 8 and 10).

In oral submissions, senior counsel for Mr Featherstone put a proposition which was somewhat different from that articulated in the application in proceeding, namely, that there should be a separate “rape trial”. As I understood it, that contemplated a separate trial for Mr Bloxsome on counts 7, 8 and 10.

Counsel for Mr Bloxsome made no submissions on the application. The application was opposed by the Crown.

An earlier application to sever by…

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.

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Details

Case: [2019] ACTSC 90
Decision Date: 1 April 2019

CaseChat Overview and Summary

In the case of R v Featherstone; R v Bloxsome (No 2), the accused, Featherstone and Bloxsome, faced allegations of sexual assault. The dispute centred on whether the court should grant an application for a separate trial for Featherstone, which had previously been dismissed. Featherstone argued that the refusal to sever the trials led to him being unable to elect for a trial by judge alone, while Bloxsome preferred a jury trial. The court had to determine if the joint trial would prejudice Featherstone to the extent that a separate trial was warranted.

The primary legal issue was whether the joint trial would cause such prejudice to Featherstone that it would be unjust to proceed without a severance. The court examined the nature of the allegations against Featherstone and Bloxsome, the evidence available, and the potential prejudice to Featherstone if a joint trial proceeded. The court considered the fact that Featherstone had not demonstrated how the joint trial would result in prejudice, particularly given that Bloxsome had a right to a jury trial. The court also noted that Featherstone had not provided any evidence of how the joint trial would be detrimental to his defence.

The court held that there was no sufficient evidence of prejudice that would warrant a separate trial for Featherstone. It was found that the joint trial would not cause unfair prejudice, and the application for severance was dismissed. The court emphasised that Featherstone had not shown how the joint trial would lead to an unfair outcome or prejudice his right to a fair trial. The court concluded that a joint trial would not substantially prejudice Featherstone, and therefore, the application for a separate trial was denied.

The final orders of the court were to dismiss Featherstone's application for a separate trial. Featherstone and Bloxsome would proceed with a joint trial, with Bloxsome electing for a jury trial. Featherstone was not entitled to a separate trial by judge alone, and the court found no grounds for severance.

Orders

Orders of the court

See [29]

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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