R v Hutchison, Lee & Wilby - [2005] VSC 165

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1484 of 2004

THE QUEEN

BROCK HUTCHISON, LINTON LEE AND KURTIS WILBY

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 APRIL 2005
DATE OF RULING:	29 APRIL 2005
CASE MAY BE CITED AS:	R v BROCK HUTCHISON, LINTON LEE AND KURTIS WILBY
MEDIUM NEUTRAL CITATION:	[2005] VSC 165

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Criminal Law – Ruling – Application for separate trial of second accused – Prejudicial effect on the second accused of evidence contained in statement of third accused considered – Applicability of principles relating to separate trials discussed – Prejudicial effect of material in statement unable to be neutralised by judicial direction - Separate trials ordered to ensure fair trial for second accused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Ryan	Stephen Carisbrooke, Acting Solicitor for Public Prosecutions
For the First Accused	Mr S. Russell	Leanne Warren & Associates
For the Second Accused	Mr M. Tovey QC with Mr J. Dounias	Roberts Beckwith Partners
For the Third Accused	Mr S. Johns	White & Associates

HIS HONOUR:

Application is made on behalf of the accused Lee for a separate trial of the counts before this court.

The principles relating to the discretion to order separate trials are relatively well settled. The paramount principle for a trial judge exercising that discretion is to ensure a fair trial for the accused person. As the Full Court stated in R v. Demirok[1]:

"Essentially, an accused man is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him is admissible evidence and that he is not exposed to prejudice by the introduction against him of material which is irrelevant or in some situations only marginally relevant."

[1][1976] VR 244 at 255

There are, of course, public interest considerations which must also be taken into account. In Demirok's case the court referred to these public interest considerations in these terms:

"In the first place there is the question of the administrative matter 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 re‑trial 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…

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: [2005] VSC 165
Decision Date: 29 April 2005

CaseChat Overview and Summary

The case of R v Hutchison, Lee & Wilby involved three defendants who were charged with serious criminal offences. The nature of the dispute centred around the application for a separate trial of one of the accused, Lee, who argued that the evidence contained in the statement of the third accused, Wilby, was highly prejudicial to his own defence. The matter was heard in the Supreme Court of Victoria. The legal issues that the court was required to decide included whether the evidence contained in Wilby's statement was so prejudicial to Lee that it necessitated a separate trial and whether the principles relating to separate trials were applicable in this case.

The court examined the nature of the evidence in Wilby's statement and its potential prejudicial effect on Lee. The court found that the material in Wilby's statement could not be neutralised by any judicial direction and that it would have a substantial prejudicial impact on Lee's defence. The court also considered the principles relating to separate trials, which require that a separate trial should only be granted if it is necessary to ensure a fair trial for the accused. The court concluded that, in this case, a separate trial was necessary to protect Lee's right to a fair trial and to prevent the prejudicial effect of Wilby's statement from unfairly impacting his defence.

The Supreme Court of Victoria ordered that Lee be tried separately from the other two accused, Hutchison and Wilby. This decision was based on the court's determination that the evidence contained in Wilby's statement was so prejudicial to Lee that it would not be possible to ensure a fair trial for him if he were tried jointly with the other two accused. The court's ruling was in line with the principles relating to separate trials and aimed to protect Lee's right to a fair trial. The final orders of the court included the direction that Lee be tried separately from Hutchison and Wilby to ensure that he received a fair trial and that the prejudicial effect of the evidence in Wilby's statement did not unfairly impact his defence.

Orders