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 |
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…
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- Case
- [2019] ACTSC 90
- Decision Date
CaseChat Overview and Summary
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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