R v McParland; R v Wingate (No 2)

[2011] NSWDC 265

District Court

New South Wales

Medium Neutral Citation:	R v McParland; R v Wingate (No 2) [2011] NSWDC 265
Decision date:	18 July 2011
Before:	Cogswell SC DCJ
Decision:	Application for separate trials rejected.
Catchwords:	CRIMINAL LAW - Procedure - separate trials - inconsistent accounts to police - risk of prejudice cured by directions to jury.
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s 21.
Cases Cited:	R v Baartman (Court of Criminal Appeal (NSW), 6 October 1994, unrep). R v Middis (Supreme Court (NSW), 27 March 1991, unrep). Webb and Hay v The Queen (1994) 181 CLR 41.
Category:	Procedural and other rulings
Parties:	Regina (Crown) Troy McParland (Accused) Luke Wingate (Accused)
Representation:	Counsel: F M Sullivan (Crown) N E Keay (Accused - McParland) J E Healey (Accused - Wingate)
File Number(s):	DC 2010/388494 (McParland) DC 2010/394917 (Wingate)

Judgment

1. Troy McParland and Luke Wingate have been jointly charged with the offence of aggravated break and enter and commit serious indictable offence in company. Briefly, the circumstances are that they were found by the police in the early hours of the morning near some equipment which had been recently stolen from a site in the vicinity of where they were found. Each of them was arrested and interviewed. Each of them gave an account of what they were doing at the scene at the time. Those accounts, I accept, were inconsistent.

1. Ms Healey of counsel who appears for Mr Wingate has applied for a separate trial on behalf of her client. Her application, which was made by notice of motion, is supported an affidavit of Matteo Russoniello. Ms Keay who appears for the co-accused Troy McParland supports the application of Luke Wingate.

1. The application is made under s 21 of the Criminal Procedure Act 1986 (NSW). I may make an order for a separate trial if I am of the opinion that it is desirable to direct that one accused be tried separately for the offences charged on the indictment.

1. The law regarding separate trials was set out in the judgment of the Court of Criminal Appeal in R v Baartman (Court of Criminal Appeal (NSW), 6 October 1994, unrep), which in turn applied the judgment of the then Chief Judge at Common Law, Hunt J in R v Middis (Supreme Court (NSW), 27 March 1991, unrep).

1. Ms Healey argues that the different account given by Mr McParland and her client in the record of interview will mean that the jury will take into account impermissibly the inconsistencies in their accounts. That is in admissible and prejudicial material. She also argues that there were some items found in the car driven by Mr McParland which, she says, are not admissible against her client.

1. Ms Keay in supporting the application argues that the inconsistent accounts given by both accused to the police will lead the jury inevitably to the conclusion that one of them is lying, that there is a real risk that the jury will act upon that conclusion and take those inconsistencies into account impermissibly.

1. Ms Sullivan who appears for the prosecution claims that this is a classic case for a joint trial because a common purpose is alleged between the accused. The law is that they should be tried jointly. That is desirable as the High Court said in Webb and Hay v The Queen (1994) 181 CLR 41. She argued that any impermissible prejudice can be fixed by directions from me.

1. I do not propose to separate the trials. I consider it desirable in a case such as this that there be a joint trial of the two accused. There is a risk, as Ms Healey and Ms Keay say, that there is exposed to the jury impermissible and prejudicial material, namely the inconsistent accounts given by them and not admissible against the other. However, the courts have long regarded juries as not only capable of taking into account directions given by trial judges, but as acting upon those directions. It seems to me that the risk of prejudice in this case is more appropriately dealt with by very clear directions from me as to what may and may not be taken into account against the respective accused.

1. There is no real risk, in my opinion, that the case against Mr Wingate will be made immeasurably stronger by reason of the prejudicial material. That is substantially because of the directions which I will give the jury.

1. For those reasons I propose to reject the application.

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Decision last updated: 06 February 2014