R v Mitchell (No 2) - [2020] SASC 148

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)

R v MITCHELL & ORS (No 2)
[2020] SASC 148
Reasons for Ruling of the Honourable Justice Lovell
11 August 2020
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
The accused, Alfred Rigney, is charged with two counts of murder pursuant to ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA). He is charged on a joint information with four co-accused.
Application for separate trial - where prosecution intends to lead admissions made by the co-accused which implicate the accused - whether prejudicial effect of evidence can be met by directions to the jury.
Held, dismissing the application:
1. Any prejudice faced by the accused can be met by an appropriate direction to the jury.
Evidence Act 1929 (SA) s 34T, referred to.
Nguyen v The Queen [2020] HCA 23; R v Collie, Kranz and Lovegrove (1991) 56 SASR 302; R v Gillard and Preston [2000] SASC 454; R v Glover (1987) 46 SASR 310; R v Harbach (1973) 6 SASR 427; R v Helps (2016) 126 SASR 486; R v Mitchell & Ors [2020] SASC 147; Talbot v The Queen [2019] SASCFC 112, considered.

R v MITCHELL & ORS (No 2)
[2020] SASC 148
Criminal: Application for separate trial
LOVELL J:
Overview

The accused, Alfred Rigney, pleaded not guilty to two counts of murder (one count pursuant to s 11 of the Criminal Law Consolidation Act 1935 (SA) and one count pursuant to s 12A of the same act). Mr Rigney (‘Rigney’) is charged on a joint information with four co-accused. Counsel for the accused, Mr Henchliffe QC, applied for Rigney to be tried separately from his co-accused.
It was common ground that the prosecution intend to lead admissions made by other accused which also implicate Rigney. It was submitted that statements by other accused, while admissible at the trial against those particular accused, are inadmissible against him but highly prejudicial and in these circumstances Rigney could not get a fair trial.
The alleged offending
It is necessary to set out the allegations in summary form. The prosecution allege that Benjamin Mitchell (‘Mitchell’), Jason Howell (‘Howell’), Matt Tenhoopen (‘Tenhoopen’), Aaron Carver (‘Carver’) and Rigney jointly committed the murder of Urim Gjabri (‘the deceased’). The prosecution allege a joint enterprise or at least an extended joint enterprise.
The alleged offending arose out of a “drug rip”[1] at the deceased’s home. The deceased lived alone at 17 Carousel Street, Para Vista. The deceased tended to cannabis crops, which were being grown at the property under hydroponic conditions.
[1] Detective Ward described a “drug rip” as a home invasion where drug crops are being grown.
It is alleged that at approximately 12.00 am on 9 October 2018, the five co‑accused drove to the deceased’s residence in a white Holden Commodore sedan (‘the Commodore’) and a blue Subaru WRX (‘the WRX’) with the intention of stealing the cannabis plants. The accused (some, if not all) entered the premises armed with weapons (including a cricket bat, a knife and bricks obtained from a nearby building site). The accused climbed over the fence to gain access to the property. They forced open the front door and confronted the deceased. Some accused made admissions about what occurred in the house. Rigney made no admissions. The deceased was repeatedly assaulted (likely with a cricket bat) and sustained injuries to his head and body. When not guarding the deceased, the accused “stripped” the cannabis crop from inside the house. The crop consisted of 13 mature plants. It is alleged that the accused remained in the house for up to 20 minutes. At some point, the deceased’s phone, a black Apple iPhone, was taken. The accused loaded the plants into the deceased’s car, a grey Mazda 2, and fled. The accused left the deceased inside the house. The evidence suggests that the deceased was alive at this point, despite having sustained serious injuries.
It is alleged the accused then travelled in the deceased’s car, the Commodore and the WRX to Gilbert Street, Ingle Farm. The accused were witnessed (but not all identified) moving the plants from the deceased’s car into the Commodore and the WRX. A resident reported seeing a group of six to seven men in the street. On the prosecution case, the accused spent five to 10 minutes in this location before one of the accused released the handbrake on the deceased’s car, leaving it to roll out of control into the curb. The accused then left Gilbert Street in the Commodore and the WRX.
The application
On 17 April 2020, Mr Henchliffe filed an application pursuant to rule 49 of the Supreme Court Criminal Rules 2014 (SA) seeking, among other things, an order that Rigney be tried separately to the four co-accused. He seeks that order on the following grounds:
Grounds:
A fair trial of the applicant is not possible unless he is tried separately.
If the applicant is tried with the co-accused, a large amount of evidence highly prejudicial to him, which is inadmissible against him, will be heard by the jury because it is admissible against the co-accused.
In the circumstances of this case and the nature of the evidence concerned, directions to the jury to ignore that evidence when it considers whether the applicant has been proved to be guilty are bound to be ineffectual.
A joint trial of the applicant with the co-accused will result in him not having a fair trial and cause a miscarriage of justice.
Legal principles
The common law principles in relation to an application for a separate trial were not in dispute. Although not argued before me, I will consider whether s 34T of the Evidence Act 1929 (SA) (‘the Evidence Act') is engaged.
The principles in this area are well-established.[2] Whether a court should order separate trials turns on whether the evidence admissible against a co‑accused is so prejudicial to the other accused that the prejudice cannot be cured by an appropriate direction to the jury; in such circumstances the accused could not obtain a fair trial.[3] The starting point is that participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together.[4] In order for the jury to discern the truth of the matter, “it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by the alleged criminal participants in the incident”.[5] When each of the accused is seeking to cast the blame on to the other, the interests of justice demand that the jury should have the whole picture presented to them and not half of it, and should see the person on whom blame is sought to be cast as well as the person seeking to cast it.[6]
[2]    See R v Collie, Kranz and Lovegrove (1991) 56 SASR 302.
[3]    Talbot v The Queen [2019] SASCFC 112 at 12 [64] per Stanley J.
[4]    R v Glover (1987) 46 SASR 310 at 312 per King CJ.
[5]    R v Glover (1987) 46 SASR 310 at 312 per King CJ.
[6]    R v Harbach (1973) 6 SASR 427 at 433 per Bray CJ, Mitchell and Sangster JJ.
It is the duty of a trial judge to make it plain to the jury what evidence is inadmissible against any of the accused and to warn them that they must not use such evidence against that accused. The law assumes that the jury is capable of understanding and willing to heed such instructions.[7]
[7] R v Gillard and Preston [2000] SASC 454 at 22 [92] per Duggan and Bleby JJ; R v Collie, Kranz and Lovegrove (1992) 56 SASR 302 at 308 per King CJ.
A difference in the evidence admissible against each accused is a factor to be considered when exercising the discretion as to whether to order separate trials. A court should order a separate trial where the prejudice suffered by the defendant cannot be cured by an appropriate direction to the jury.
The prosecution’s case against Rigney
The case against Rigney is circumstantial. I must take the prosecution case at its highest. The following summary is compiled from the declarations in addition to the submissions made by counsel.
CCTV footage
Police seized CCTV footage from four locations in close proximity to Carousel Street, which depict the Commodore, the WRX and the accused on foot. The footage is indicative of a sequence of events involving Carver and Rigney (although not identified) conducting reconnaissance on the deceased’s premises in the Commodore before meeting Mitchell, Howell and Tenhoopen in a nearby street. On the prosecution case, the footage captures the accused armed with weapons walking towards the deceased’s premises.
Mobile phone movements
The prosecution also rely on mobile phone movements as detected by cell towers. The phone, alleged to belong to Rigney, was tracked to Murray Bridge between 7.07 am and 1.03 pm on 8 October 2018. On the prosecution’s case, this is consistent with him obtaining and registering the Commodore. At around 11.00 pm on the same date, Rigney’s phone was tracked to Ingle Farm (immediately west of the deceased’s premises), suggesting that he may have been conducting reconnaissance of the deceased’s house. It then registers at Holden Hill at 11.15 pm. At this time, there is a phone call from Rigney’s phone to Carver’s phone. On the prosecution’s case, this is consistent with Rigney arranging to meet Carver prior to the murder.
The phone is then tracked at 1.36 am, on 9 October 2018, to Mount Barker. The prosecution allege this is consistent with Rigney and Carver travelling back to Mount Barker after the murder.
Eye-witness accounts from Gilbert Street
At 12.44 am, police received two 000 calls from Gilbert Street residents in relation to a disturbance. Carmel Day, of 8 Gilbert Street, reported hearing raised voices and scuffling outside. She observed a group of six to seven males standing opposite her house. They sounded aggressive.
Kirsty Folwell (‘Folwell’) of 3 Gilbert Street, reported that people had put a cannabis plant in her skip bin and were threatening her family. She observed a group of five males and two vehicles (one of which was a white Commodore). She observed a grey Mazda mounted on the median strip.
Kobi Passmore (‘Passmore’) is the partner of Folwell. With his son, Codey-Folwell-Passmore (‘Folwell-Passmore’), Passmore went outside to investigate. They observed a small Mazda, a white Commodore (missing its number plate) and a black car. They observed three men transferring cannabis from the Mazda to the Commodore.
In a photographic identification procedure, Folwell-Passmore identified Carver as one of the men present at Gilbert Street. Rigney was not identified as being present at Gilbert Street, despite his photo being shown to residents.
White Holden Commodore (WWR333)
The Commodore is connected to Rigney. In October 2018, Daniel Thomas and Ebony Stevens sold the car to an Aboriginal man and woman. They described the man as missing his front teeth (which is consistent with Rigney’s appearance). At approximately 12.00 pm on 8 October 2018, Melanie Hammond (Carver’s sister) registered the vehicle in her name “as a favour” to Rigney. The murder is alleged to have occurred in the early hours of the following day.
On 13 October 2018, Rigney arranged for Elwyn Warren (‘Warren’) to swap the Holden Commodore for two other vehicles (including a red Ford Focus (XB0105)). The following day, Warren took possession of the Commodore and its registration papers. She transferred the registration into her name on 16 October 2018.
On 19 October 2018, police seized the Commodore from Warren. It was forensically examined and cannabis residue was found in the front and back of the car. Hemastix testing detected blood on the foot pedals and rear passenger door, although the car contained very low or no amounts of DNA.
DNA evidence
Police attended Gilbert Street and located the deceased’s vehicle. They impounded the car and it was forensically examined. A swab of the steering wheel revealed a mixed DNA profile of four contributors, including the deceased. When compared with a reference sample from Rigney, tests found a likelihood ratio of 76 million to one in favour of the hypothesis that Rigney was a contributor to that profile.[8] This is the only DNA evidence which will be relied upon by the prosecution in relation to Rigney. There is no DNA evidence connecting Rigney to the inside of the deceased’s house.
[8] Statement of Olivia Handt, dated 12 March 2019.
The deceased’s mobile phone
On 26 October 2018, police arrested Rigney on a Parole Board Warrant at 54 Ryan Street, Moonta Bay; the residence of Tamia Sansbury. During the search, police located a black bag containing personal items belonging to Stacey Karpany (‘Karpany’), Rigney’s partner. Police located the deceased’s mobile phone, a black Apple iPhone 5 in the bag. Karpany stated that she found the phone in the Commodore, wedged between the back seats when she was cleaning it. Rigney applied to have this evidence excluded. In a separate judgment, I dismissed his application.[9]
[9] R v Mitchell & Ors [2020] SASC 147.
The inadmissible evidence
The prosecution do not rely upon any admissions made by Rigney. The prosecution in their case against Howell and Tenhoopen will rely upon admissions made by them. Their statements are inadmissible against Rigney but implicate him in the murder.
Howell’s admissions
The following declarations contain admissions by Howell which implicate Rigney:
·Affidavit of Matthew Bengel dated 8 March 2019 (Annexure B: Record of Interview with Howell);
·Affidavit of Cassandra Dunnicliff dated 13 November 2018;
·Affidavit of Michael Newbury dated 5 March 2019 (Annexure MN5, being telephone intercepts); and
·Affidavit of Michael Bullock dated 15 November 2019.
Admissions to Detective Brevet Sergeant Bengel
On 14 December 2018, Detective Brevet Sergeant Bengel (‘Bengel’) interviewed Howell. During that interview, Howell made the following admissions, which implicate Rigney in the murder:
·he knew “Alfie” through Carver; he was always there when he went to pick up large quantities;
·he described “Alfie” as a “large fellow, bald head, dark skin, pretty heavy set” “Aboriginal” with no facial hair;
·Carver, Mitchell, Tenhoopen and Howell travelled to Adelaide in Mitchell’s blue WRX;
·“Alfie” arrived in a white VZ Commodore at the building site;
·Carver and “Alfie” walked down the street and came back with tools;
·Carver smoked a cigarette and “Alfie” told him to put it out;
·at the house, “Alfie” told Howell to jump the fence of the house, telling him he would “cave (his) … head in” if he didn’t;
·“Alfie” jumped the fence while holding a cricket bat;
·Mitchell and Tenhoopen kicked the wooden doors in;
·as they went through the front door, Carver shined a torch into the house and said, “It’s the police get down”;
·Howell saw someone in the kitchen who said, “you can have it all”;
·“Alfie” screamed at him to get on the bed;
·the man got on the bed and “Alfie” hit him across the face with the cricket bat;
·“Alfie” hit the man on the top of his head and blood started “squirting” everywhere;
·“Alfie” hit the man in the legs and then Tenhoopen had the cricket bat;
·“Alfie” and Carver loaded the cannabis from the house into the victim’s car;
·Howell was in the victim’s car with Tenhoopen (who was driving), “Alfie” was in his Commodore with Carver and Mitchell was driving his WRX;
·they drove to another spot, where “Alfie” and Tenhoopen moved the cannabis into the WRX;
·neighbours came out onto the street and Carver told one of them that they had been raided;
·Howell, Mitchell and Tenhoopen left in the WRX and Carver and “Alfie” left in the white Commodore;
·“Alfie” changed his car number plate;
·they went to a service station and Carver disposed of the man’s phone;
·“Alfie” threw the cricket bat and the gloves out of the window somewhere along the highway; and
·both cars drove back to Murray Bridge.
Admissions to Cassandra Dunnicliff
Cassandra Dunnicliff (‘Dunnicliff’) is the former partner of Howell. On a trip to Queensland in the weeks following the deceased’s death, Howell is alleged to have made the following admissions to Dunnicliff which tend to implicate Rigney:
·there were five people involved in the murder (Alfie, Aaron Carver, Matt Tenhoopen, Ben Mitchell and himself);
·“Matt” and “Alfie” kept assaulting the victim;
·“Alfie” hit the victim quite a few times with a bat;
·Howell or “Alfie” broke the victim’s legs;
·“Alfie” and “Aaron” had been doing “this type of job for a while”; and
·“Alfie” is not a “white guy”.
Admissions to his mother
Annexure MN-5 to the affidavit of Michael Newbury contains transcripts of telephone conversations between Howell and his mother. On 11 November 2018, there was a phone conversation between Howell and his mother in which they discussed the police asking Howell’s mother about the names of people connected to the case. Howell asked her whether police had mentioned the names “Alfie”, “Matt”, “Ben” and “Aaron”.
Howell told his mother that he was “terrified” of Rigney. He stated that if he was in the same gaol as “Alfie” he would “end up dead within a month”.
Admissions to Michael Bullock
Michael Bullock (‘Bullock’) met Howell while they were in custody at Yatala Labour Prison. He stated that in September 2019, Howell made the following admissions to him:
·“Aaron” and “Alfie” used to “case out” hydro-shops and follow people away from them;
·“Aaron” and “Alfie” followed the deceased back to a house in Para Vista;
·he was with four other people and they went to “the guy’s place, got in and stole some plants and killed him”;
·they drove to a house near Carousel Street, Ingle Farm;
·they all entered the house;
·“Alfie” pulled out the cricket bat, “swung it over his head and diagonally downwards striking the male on the right side of his head”;
·almost instantly, “Alfie” swung the bat diagonally upwards striking the male a second time and under the left side of his jaw”;
·the man fell onto a bed;
·“Alfie” continued to strike the man on his legs with the cricket bat;
·“Matt” took the bat from “Alfie”;
·“Matt” spat on the man and struck him a few times with the bat;
·“Alfie” took 10 plants and put them into the man’s car;
·the group drove two streets away and unloaded the plants into the WRX;
·“Aaron” and “Alfie” drove off in “Alfie’s” Commodore; and
·the group went to Jervis Street, Murray Bridge where they divided the cannabis.
Bullock alleged that Howell gave him a number of handwritten notes which implicate Rigney in ways generally consistent with the above. The notes allege that Rigney threatened to “bash” Howell with a bat if he “didn’t do as he was told”. The notes state that Carver and Rigney tried to break into Howell’s house one night after the murder to kill him but that he escaped.
Tenhoopen’s admissions
The following statements contain admissions by Tenhoopen which implicate Rigney:
·Affidavit of Bridie McCormack dated 20 November 2018; and
·Affidavit of Scott Watts dated 20 December 2018.
Admissions to Bridie McCormack
Bridie McCormack (‘McCormack’) was Tenhoopen’s partner at the time of the alleged offending. On 16 November 2018, she gave a statement to Senior Constable Van Heer. McCormack said that on 7 October 2018, Tenhoopen told her that he had a plan to steal cannabis with Carver. On 9 October 2018, Tenhoopen is alleged to have made the following admissions to McCormack:
·Tenhoopen, “Ben” and two other males, referred to as “Alfie” and “Jason” were involved in stealing the cannabis;
·they drove two cars to Adelaide to steal cannabis (one of which was “Ben’s Subaru”);
·they broke into the house as one of the group identified the house as being a “grow house”;
·“no one was meant to be home” but there was a foreign man staying inside the house;
·all of them went inside the house;
·Tenhoopen saw “Alfie” and “Jason” beat up the male inside the house;
·Tenhoopen stole cannabis from inside the house;
·somebody, possibly “Alfie”, asked Tenhoopen to hit the man on the arm with a weapon and he did so; and
·they put the cannabis into Mitchell’s car.
On 22 October 2018, Tenhoopen told McCormack:
·when the group left the house, the man was alive; and
·the others went back into the house and “Jason” “finished him off”.
Admissions to Scott Watts

On 20 December 2018, Scott Watts (‘Watts’) provided a statement to Senior Constable Cushnie. Watts was in custody in the Adelaide Remand Centre at the same time as Tenhoopen. On 3 December 2018, Watts and Tenhoopen shared a cell. Watts said he knew Tenhoopen from Murray Bridge. Tenhoopen told Watts that he was charged with murder. Tenhoopen is alleged to have made the following admissions to Watts:
·“Aaron Carver”, “Alfie”, “Ben” and “Jason Howie” were involved;
·Tenhoopen tried to kick the front door in but it was reinforced;
·they shone torches into the house and said they were the police;
·they used an axe to smash a window but there was tin blocking it;
·a man was lying on the floor;
·the man made a phone call but deleted the number that he had rung;
·a Mercedes Benz pulled into the driveway of the house;
·Carver threw the axe through the window and the vehicle drove away;
·“Alfie” hit the man on the head with something;
·they took all the cannabis and a wad of money from the house;
·they scooped the drying cannabis into “donna covers” from the house;
·they all “had a go at watching” the man;
·the man was alive when they left the house;
·they loaded the cannabis into the cars (including the man’s car);
·“Alfie” and Carver were “yelling and screaming”;
·a neighbour came outside and they yelled at him to get back inside; and
·there was a gun from the job buried at the Murray Bridge golf course.
Consideration
When considered together and taken at its highest, the evidence against Rigney places him at the scene. It is open to infer his involvement from the evidence of his DNA on the steering wheel of the deceased’s car and his possession of the deceased’s mobile phone. Mr Henchliffe submitted that the difficulty in proceeding is that the inadmissible evidence goes further than confirming Rigney’s involvement in the offence. The inadmissible evidence provides detail of the role played by Rigney and positions him as the most violent towards the deceased; it places him at the centre of the offending.
The prejudicial effect of this evidence is compounded by the “bad character” evidence which suggests that Rigney has a general propensity to partake in “drug rips”, to threaten others and to act violently. Without a separate trial, the jury will hear that Howell fears Rigney. As Mr Henchliffe submitted, the cumulative effect of the evidence is that he is “a man of the worst possible character”. The particular difficulty faced by Rigney is that he does not have standing to argue that the evidence of bad character should be excluded (as the evidence is not being admitted against him). Mr Henchliffe submitted that there is a real danger that the weaker case against Rigney will be made immeasurably stronger by the jury hearing the inadmissible evidence.
Given the amount of evidence and the nature of the prejudice attached to it, Mr Henchliffe further submitted that directions will not immunise the jury against prejudicial reasoning. In his submission, it is simply not realistic to think that directions can stop what the jury will think is a natural way of thinking.
As set out above, two of the co‑accused made admissions, implicating Rigney, to a number of witnesses. Although there are some discrepancies between the admissions, the statements are largely consistent. This is not the case where only one of the accused made admissions in the course of a police interview.
Unlike their case against Carver, Tenhoopen, Howell and, to a lesser extent, Mitchell, I accept that the prosecution case against Rigney, does not rely on any admissions made by him.
However, the cases against all accused are strongly linked. The accused are charged with the same offences arising from the same factual matrix. The prosecution allege a joint criminal enterprise or an extended joint enterprise. This is not a case where the roles of the accused in the charged act differ such that a separate trial should be ordered. The prosecution do not need to prove that Rigney was at the centre of the offending to prove his guilt. The case against Rigney is not weak merely by reason of it being circumstantial. The jury will be directed to consider all of the circumstances established by the evidence in deciding whether there is an inference consistent with innocence reasonably open on the evidence. Rigney’s involvement in the offence can be inferred from the prosecution’s evidence against him.
Plainly the jury will have before it inadmissible evidence implicating Rigney. Additionally, and importantly, the jury will have before it inadmissible evidence alleging he is of bad character (discreditable conduct) as outlined earlier.
In my view, any prejudice arising from the prosecution leading evidence admissible against his co-accused but inadmissible in the case against Rigney, including the evidence of bad character, can be met by appropriate instructions to the jury. The directions are straightforward and not complicated. Here, the direction is simply that such evidence, which can be clearly identified, is not admissible against Rigney. It cannot and must not be used in any manner when the jury considers the evidence against Rigney. As mentioned, the courts presume that the jury can follow directions.
I find that the prejudice can be met by appropriate directions to the jury.
I turn to consider s 34T of the Evidence Act.
Section 34T states:
Where –
(a)2 or more defendants are charged in the same information; and
(b)a party proposes to adduce discreditable conduct evidence; and
(c)a defendant (the applicant) applies prior to or during the trial for a separate trial or for a charge to be severed from the information,
the court, when considering the application, must give strong weight to a real possibility that the applicant may be prejudiced by –
(d)evidence proposed to be adduced by the prosecutor against another defendant which is not admissible against the applicant; or
(e)evidence proposed to be adduced by another defendant which is not admissible against the applicant; or
(f)the applicant’s inability to adduce with respect to another defendant relevant evidence that would be admissible but for the operation of s 34P.
Section 34T is engaged where a party proposes to adduce discreditable conduct evidence. The section requires a court, when considering an application for a separate trial, to give “strong weight to a real possibility that the applicant may be prejudiced by” evidence proposed to be adduced by the prosecutor against another defendant which is not admissible against the applicant.
For s 34T to be engaged, there must be, on foot, an application for a separate trial. To that extent, the common law principles still apply. Section 34T provides additional protection for an accused where discreditable conduct evidence is proposed to be led. The expression “discreditable conduct evidence”, as used in this Division of the Evidence Act relates to evidence, in general terms, other than evidence of the offending. Obviously, evidence directed to proof of the offence itself cannot amount to discreditable conduct evidence.
For example, out of court statements by an accused that include allegations implicating Rigney in the actual offending, whilst inadmissible against Rigney, do not attract the operation of s 34P of the Evidence Act. Statements by another accused that Rigney had participated in other “drug rips” and that he had a propensity for violence clearly amounts to evidence of discreditable conduct.
What is unusual about this matter is that the evidence of discreditable conduct is adduced by the prosecution in its case against another accused but not against Rigney. The prosecution seek to lead statements against self-interest made by Howell. The statements against self-interest are clearly admissible against Howell. However, the prosecution have an obligation to tender all of Howell’s statements, including his exculpatory statements attacking the character of Rigney.[10] Howell has not sought to exclude these statements. Rigney has no right to seek to have them excluded as they are, in any event, inadmissible against him. It could not be said, where such discreditable conduct evidence is led by the prosecution, that Howell “proposes to adduce discreditable evidence”, even though the evidence may benefit him. Nor could it be said that the prosecution propose to adduce discreditable conduct evidence against Rigney; the evidence proposed to be led is only admissible against Howell.
[10] Ngyuen v The Queen [2020] HCA 23; R v Helps (2016) 126 SASR 486.
In these circumstances, is s 34T engaged? The issue was not argued before me. It is arguable that the terms of ss 34T(b) and (d) should be interpreted broadly, given that s 34T is intended to protect an accused. That is, where the prosecution proposes to lead evidence at trial which falls within the definition of “discreditable conduct evidence” against an accused, even though it is inadmissible against that particular accused, s 34T is engaged.
When considering the common law discretion, I had regard to the prejudice that arose due to the admission of the discreditable conduct evidence. I considered it to be an important and significant matter in favour of granting the application. Section 34T requires me to give “strong weight to a real possibility that the applicant may be prejudiced by” the admission of that evidence when considering the application for a separate trial. I will apply the test on the basis that s 34T is engaged, without reaching a conclusion on the point.
Applying that test does not change my conclusion. I am satisfied that, even when applying the direction prescribed in s 34T, the application should be dismissed.
I dismiss the application for a separate trial.
Order
1.The application for a separate trial is dismissed.