R v Singh & Bachra (No 1) - [2010] SADC 129

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SINGH & BACHRA (NO 1)
[2010] SADC 129
Reasons of His Honour Judge Millsteed
12 October 2010
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
Applicant charged jointly with other accused on some counts and other accused charged alone on other counts in the one Information — application for separate trials — whether evidence relating to counts in which second accused charged alone admissible against applicant — whether there was a “qualitative and quantitative” imbalance between the case against the applicant and the other accused — whether applicant would suffer incurable prejudice at joint trial — application refused.
Criminal Law Consolidation Act 1935 s 278 , referred to.
R v Liddy (2002) 81 SASR 22; R v Barrel (1979) 69 Cr App R 250; R v Collins (1994) 76 A Crim R 204; R v Rigney (1975) 12 SASR 30; R v Hogan & Ors (1990) 159 LSJS 297; R v Smith, Turner & Anor (1994) 63 SASR 123; R v Bunting & Ors (No 3) (2003) 230 LSJS 410; R v Tracey & Ors (No.1) [2005] SASC 355; R v Assim [1966] 2QB 249; Webb and Hay v R (1994) 181 CLR 41; R v Harbach (1973) 6 SASR 427; R v Collie, Kranz & Lovegrove (1991) 56 SASR 302; R v Glover (1987) 46 SASR 310; R v Gibb & Mc Kenzie (1983) 2 VR 155; R v Demirok [1976] VR 244; R v Smith & Turner (No2) (1995) 64 SASR 1; R v Gillard & Preston (1998) 200 LSJS 350; R v Gillard & Preston [2000] SASC 454; R v Darby (1982) 148 CLR 668, considered.

R v SINGH & BACHRA (NO 1)
[2010] SADC 129
Introduction

The accused Harry Dev Singh and Manjit Singh Bachra are charged on the one information jointly with Aggravated Serious Criminal Trespass (count 1), Aggravated Robbery (count 2), Aggravated Threaten to Cause Harm (count 3) and Aggravated Threaten to Kill (count 4). Bachra is further charged on the same information with Aggravated Assault (count 5) and four counts of Blackmail (counts 6-9).
A joint trial of the accused has been listed to commence on 21 January 2011.
On 16 April 2010 Singh filed a Rule 9 Notice seeking an order that Counts 1-4 be severed from the counts in which Bachra alone is charged and, in the alternative, an order that he receive a separate trial from Bachra. The application was heard by me on 22 April 2010. The prosecution was represented by Mr J Powell, the accused Singh by Mr D Stokes and the accused Bachra by Ms C Demertzis. The application was neither opposed nor supported by Bachra but was opposed by the prosecution.
On 11 June 2010 I rejected Mr Singh’s application and ruled that both accused should stand trial together on the one information. I indicated that I would give written reasons for my decision. These are my reasons.
The Prosecution Case
Before considering the arguments presented in support of the application it is necessary to summarise the prosecution case against the accused.
The accused and the key prosecution witnesses Ankitkumar Rajpara, Pradeepkumar Yadav, Nilay Patel and Digant Shah are young men of Indian descent. In 2006 the four named prosecution witnesses were students and friends. Rajpara, Yadav and Patel shared a unit at Kurralta Park while Shah lived at another address.
On the evening of 19 September 2006 Rajpara was at home with Shah. At about 7:45pm Rajpara received a telephone call from a male person. The caller wanted to obtain tickets to an Indian concert that Rajpara was organising. The caller spoke aggressively and asked “Do you care who I am?” Rajpara replied that he did not care and did not know him.
A short time later Rajpara received a call from another male person who claimed to be the first caller’s cousin. He apologised to Rajpara for the manner in which he had been spoken to and said that his cousin was drunk. He said that he wanted to purchase tickets for the concert and obtained Rajpara’s address from him.
Subsequently, Rajpara answered a knock on the front door. He saw three men and allowed them inside. A short time later another three men entered the unit without invitation. All six men were of Indian descent and appeared intoxicated. Two of the men were later identified from photographs by Rajpara as the accused Bachra and Singh. The accused, and their companions, claimed to be members of an Indian gang called “Sly Gabaru” which had been formed to “deal with Caucasian people”. They accused Rajpara and Shah of betraying them. The accused Singh, bragged that he was a dentist in the army. Some of his companions claimed to be police and air force officers. Apparently, it is not in dispute that Singh was an army dentist at the time.
The men taunted and harassed Rajpara and Shah. Bachra then slapped Rajpara across the face. Two of the men then held Rajpara against a wall while another man threatened to “cut off his balls” with a knife, obtained from the kitchen. Rajpara was then taken into the bathroom, told to get undressed and forced to get into the bathtub. Singh then poured a bottle of vodka over Rajpara. Bachra then held a cigarette lighter near Rajpara and threatened to set him on fire. The accused and their companions then left the unit. Rajpara then discovered that several items had been stolen from the unit including his Apple iPod, Sony Ericsson mobile phone, gold bracelet and jacket.
A few minutes later, two of the men returned and collected a jacket that one of the offenders had left behind. The prosecution does not suggest that Singh was one of the men. Rajpara asked them to return his property. They laughed and proceeded to choke and punch him. At that point the accused Bachra entered the unit and punched Rajpara in the face. The men warned Rajpara and Shah not to contact the police and left.
The first five counts in the information are based on the events which I have just summarised. On the prosecution case, the accused and their companions were parties to a joint enterprise pursuant to which they and their accomplices committed the first four counts on the information, namely Aggravated Serious Criminal Trespass in a Place of Residence (count 1), Aggravated Robbery of the property belonging to Mr Rajpara (count 2), Aggravated Threaten to Cause Harm that involved a threat to cut off Mr Rajpara’s testicles (count 3) and Aggravated Threaten to Kill that involved a threat to incinerate Rajpara (count 4). The prosecution accepts that it is possible that the accused Bachra was acting on a frolic of his own when he is alleged to have returned to the unit and punched Mr Rajpara in the face. Accordingly, only the accused Bachra is charged with the offence of Aggravated Assault (count 5).
I continue with the sequence of events alleged by the prosecution.
At about 9:30am the following day, 20 September 2006, Shah was alone in Rajpara’s unit. He received a call on his mobile phone from the accused Bachra. He said that he wanted an opportunity to discuss the incident that had occurred the previous night.
About one hour later Bachra attended the unit and drove Shah in a green Commodore to a McDonald’s restaurant. He told Shah that the incident had been triggered by Rajpara having spoken badly to them over the telephone the previous night. He then proceeded to tell Shah that he had a contact in the Immigration Department who could arrange for Shah to be deported unless he gave him money through Bachra. Bachra then drove Shah back to the unit.
Rajpara, Patel and Yadav were at the unit when they returned. Bachra told the students that the men he was with the night before were wealthy, influential and corrupt. He said they included a police officer, a customs officer, a real estate agent and an army dentist. He further suggested that the men could arrange for false criminal charges to be brought against the victims. Bachra again claimed that he had a contact in the Immigration Department who could arrange for their deportation unless they gave Bachra $6,000 which would then be passed on to him. The students agreed to pay but explained that they only had $1,300 immediately available and that they would require more time to pay the balance. Bachra arranged to meet them at 12:30pm that day at the Sands Motel on Glen Osmond Road, Fullarton. He then left.
The four blackmail charges (counts 6, 7, 8 and 9) are founded on Bachra’s alleged demands for money. Each of the alleged victims is the subject of a separate count. The prosecution accepts that there is no evidence establishing a nexus between the accused Singh and the commission of the blackmail offences. In other words, the blackmail offences (as with count 5) may have involved Bachra going off on a frolic of his own.
The four students then drove to a Bank SA ATM on Glen Osmond Road where Rajpara withdrew $300 and Patel $500 from their respective Commonwealth Bank accounts. The prosecution will tender bank records of the relevant withdrawals.
The students then drove to the Sands Motel where they met the accused Bachra in the car park and gave him the money withdrawn from the ATM. Yadav further gave him $450 cash. Bachra said that he would call them later that day to arrange for payment of the balance. He then drove away in a light green Holden Commodore sedan.
Later that afternoon Shah received a call on his mobile phone from Bachra. Shah told Bachra that they were unable to raise anymore money and handed the phone to Rajpara. Bachra told Rajpara that they were “fucked” if they did not give him more money and said that he would contact them later. The students then drove to the unit at Kurralta Park where they collected their passports and some belongings. They then drove to a friend’s home where they rang the police and reported the matter.
On either 20 or 21 September 2009 Rajpara told his neighbour, Mr Hemendra Patel, about what had happened. He specifically mentioned that the offenders claimed to be part of a group called ‘Sly Gabaru’. Hemendra Patel then used his computer to access a website called ‘klubsutra’. Apparently, the web site is managed by persons who conduct functions for people of Indian descent and displays photographs taken at such functions. Rajpara recognised Bachra in two photographs which appeared on the web site and pointed him out. Mr Patel recognised him as a person he had previously seen at ‘klubsutra’ functions and who he knew to be the accused Bachra. The photographs were given to the police.
On 21 September and 25 September 2006 police examined the unit at Kurralta Park. The front door was damaged consistent with forced entry. The police seized various items including a cigarette butt and an empty cigarette packet located in a rubbish bin in the lounge room, a cigarette lighter found on a sink in the bathroom and an empty 750 millilitre Smirnoff vodka bottle located in the kitchen.
On 17 October 2006 police attended the home of Mr Bachra at Rostrevor. Upon their arrival the police saw a green Holden Commodore sedan parked in the driveway and Mr Bachra standing nearby. He was arrested and declined to answer questions. The police searched the premises and located Mr Bachra’s mobile phone in his bedroom. Telephone call charge records relating to that phone indicate that on the morning and afternoon of 20 September calls were made from his mobile phone to the mobile phone of Shah.
The police also searched the Commodore and located in the cabin an Apple iPod and a Sony Ericsson mobile phone that were later identified by Mr Rajpara as his property. The police further located in the boot of the Commodore a key for room 12, Frewville Lodge. Subsequent police enquiries with the Sands Motel (formerly called the Frewville Lodge) on Glen Osmond Road established that a person giving the name Singh had booked into room 12 for one night on 18 September and room 2 for one night on 20 September 2006. The prosecution contends that it was the accused Manjit Singh Bachra and not the accused Harry Dev Singh who made the bookings.
Police investigations did not focus on the accused Singh until 2009. On 16 January 2009 Detective Andrew McDonald obtained Singh’s mobile telephone number and rang him. The accused declined to answer questions. He was later arrested on 11 March 2009.
The police subsequently conducted photographic identification procedures in relation to the accused Singh. The witnesses Rajpara and Shah, on 24 June 2009 and 25 July 2009, respectively, identified the accused Singh from a selection of photographs as one of the offenders.
In July 2009 Ms P King, a forensic scientist with the Forensic Science Centre, examined the cigarette butt and cigarette lighter recovered by police from the unit at Kurralta Park. She located a complete DNA profile on the cigarette butt that the DNA profile of the accused Singh. She obtained a mixed DNA profile on the cigarette lighter that was consistent with having originated from at least three individuals. The accused Singh was excluded as a possible contributor to the mixed profile.
On 5 May 2010 a police fingerprint investigator compared fingerprint impressions obtained by police from the accused Singh with fingerprints located on the Smirnoff vodka bottle recovered from the unit at Kurralta Park. The investigator concluded that two of the fingerprints matched the right ring finger impression obtained from Singh.
Legal principles
The joinder of charges against one accused person is governed by s 278 of the Criminal Law Consolidation Act 1935 which relevantly states:
(1)Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2)Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information…(italics added)
The test of whether charges are founded on the same facts is whether the charges have a common factual origin: see R v Liddy (2002) 81 SASR 22 at 122-123, 512 and 560, and R v Barrel (1979) 69 Cr App R 250. For the purposes of this test all the offences need not have been contemporaneous or to have involved precisely the same facts, but they must all be traceable to common events: see R v Collins (1994) 76 A Crim R 204.
In the present case, there is no dispute that counts 1-4 were properly joined against each accused because they arose out of the same incident. There is also no dispute that as against the accused Bachra counts 5-9 were properly joined with the first four counts because they were traceable to the events upon which counts 1-4 are based. The contentious issue is whether the accused Singh should be tried jointly in respect of counts 1-4 in circumstances where the accused Bachra is required to stand trial on the additional counts 5-9.
It is well established that s 278 neither prohibits nor authorises the joinder of two or more accused persons in the one information for the section speaks only of offences and not offenders. Justification for the joinder of more than one accused in the same information is to be found in the common law or in the established practice of the Court: R v Rigney (1975) 12 SASR 30 Bray CJ at 46; R v Hogan & Ors (1990) 159 LSJS 297 Mullighan J at 306; R v Smith, Turner & Anor (1994) 63 SASR 123 Perry J at 136; R v Bunting & Ors (No 3) (2003) 230 LSJS 410 Martin J at 462; R v Tracey & Ors (No 1) [2005] SASC 355 Nyland J at [26].
The English Court of Appeal in R v Assim [1966] 2 QB 249 (at 261) stated the common law position as follows:
As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice best served by their being tried together, then they can be properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases.
There are three fundamental principles that govern an application for separate trials. The first is that when accused persons are charged with committing a crime jointly, prima facie there should be a joint trial: Webb & Hay v R (1994) 181 CLR 41 per Toohey J at 89; R v Harbach (1973) 6 SASR 427 at 432; R v Collie, Kranz & Lovegrove (1991) 56 SASR 302. As King CJ observed in R v Glover (1987) 46 SASR 310 at 312:
[W]here two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at 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 all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, 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.
The second principle is that the prima facie rule is not displaced merely because evidence will be placed before the jury, which though admissible against one accused is inadmissible against, and prejudicial to, another accused: R v Harbach (1973) 6 SASR 427 at 432; R v Gibb & McKenzie (1983) 2 VR 155 at 163. Indeed, such evidence, including statements made by one accused person that serve to incriminate another accused, are a common feature of a joint trial: R v Collie, Kranz & Lovegrove (1991) 56 SASR 302 per King CJ at 308, 319; Webb & Hay v R (1994) 181 CLR 41 per Toohey J at 89.
In a joint trial it is the duty of the trial judge to identify the evidence which is inadmissible against any of the accused and to direct them that they must not use such evidence against the accused in question. The law assumes that a jury is usually capable of understanding and is willing to apply heed such warnings (R v Harbach (1973) 6 SASR 427 at 432; referred to with approval in Webb & Hay v R (1994) 181 CLR 41 per Toohey J at 41; R v Collie, Kranz & Lovegrove (1991) 56 SASR 302 per King CJ at 308). However, the nature of the evidence may be such that no warning by the trial judge would be effective. In such a case fairness to the accused requires that he or she receive a separate trial
The third principle is that a joint trial may be ordered though one or each of the accused is trying to cast blame for the charged crime on the other. Indeed, such circumstances are a cogent reason for holding a joint trial. In such cases the interests of justice demand that the jury 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 blame: R v Harbach (1973) 6 SASR 427 at 432; cited with approval in R v Collie Kranz & Lovegrove (1991) 56 SASR 302, King CJ at 308; R v Demirok [1976] VR 244 at 254, cited with approval in Webb & Hay v R (1994) 181 CLR 41, Toohey J at 89.

The public policy considerations that normally require the holding of a joint trial were discussed by the Full Court of Victoria in R v Demirok [1976] VR 244 at 254
The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters 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 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 witnesses should not be required to give evidence of the same events at a succession of trials.
The principles expressed in Demirok have been widely endorsed. They were approved by the Court of Criminal Appeal (SA) in R v Collie Kranz & Lovegrove and later by Toohey J in Webb & Hay v R (1994) 181 CLR 41.
The application
As earlier observed, Mr Stokes, counsel for Singh, submitted that the counts in which Singh and Bachra are jointly charged (counts 1-4) should be severed from the counts in which Bachra alone is charged (counts 5-9). In the alternative, Singh should receive a separate trial from Bachra.
The application was founded on two arguments:
·First, the evidence relating to counts 5-9 was inadmissible against, and prejudicial to, Singh.
·Second, that there was a “qualitative and quantitative imbalance” between the case against Bachra, on the one hand, and the case against Singh, on the other, the former being so much stronger that the jury’s consideration of the case against Singh would be prejudiced.
Consideration
First argument
Mr Stokes initially submitted that all of the evidence relating to counts 5-9 was inadmissible in relation to counts 1-4 in the case against Singh. I do not think that that is necessarily so. For example, if the accused Singh at trial denies that he was one of the men who attended the unit on the night of 19 September then proof that the accused Bachra was one of the men who attended, and that Singh was an associate of Bachra, would constitute an item of circumstantial evidence admissible in the case against Singh.
In any event, the critical issue is to identify the evidence relating to counts 5-9 that is both inadmissible against, and prejudicial to, the accused Singh. In my view, the only evidence which falls into that category consists of the statements that Bachra is alleged to have made in the course of committing the blackmail offences on 20 September 2006, in particular his assertion that his accomplices on the previous night were influential and corrupt and included an army dentist (see [16]). I did not understand Mr Stokes to suggest otherwise.
He submitted that Bachra’s reference to one of his companions being an army dentist would be particularly prejudicial because there is a risk that the jury might use the statement as evidence serving to confirm or support the identification and circumstantial evidence connecting him to the offences the subject of counts 1-4.
Though not specifically raised by Mr Stokes, it might also be said that Bachra’s assertions that his companions were corrupt and disreputable people who had the capacity to arrange deportations and the institution of false criminal charges might, if accepted by the jury, be used as evidence showing the accused Singh to be a person of bad character. But having said that it must be remembered that, on the prosecution case, the statements made by Bachra about his companions being corrupt, and so on, were entirely false and uttered for the purpose of instilling fear in the alleged victims. In those circumstances there would be little risk in the jury using the statements to infer that the accused Singh was in fact corrupt or was associated with corrupt persons.
I reject Mr Stokes argument that the impugned statements - including Bachra’s statement that one of his companions was an army dentist - warrant a severance of counts 5-9 or the grant of separate trials. In my opinion any risk of prejudice to the accused Singh can be obviated by careful directions to the jury. There is nothing about the nature of the statements allegedly made by Bachra or the circumstances in which they were uttered that suggest otherwise.
As earlier observed, prejudicial out of court statements made by an accused person about a co-accused are a common feature of a joint trial. Indeed, the potential for prejudice in the present case is significantly less than that which has arisen in many cases where joint trials have proceeded despite such evidence-compare prejudicial records of interview and other incriminating statements made by co-accused in R v Harbach (1973) 6 SASR 427; Webb & Hay v R (1994)181 CLR 41; R v Smith & Turner (No2) (1995) 64 SASR 1; R v Gillard & Preston (1998) 200 LSJS 350 (Mullighan J); R v Gillard & Preston [2000] SASC 454 (Court of Criminal Appeal).
Mr Stokes relied upon the decision in R v Collie, Kranz & Lovegrove (1991) 56 SASR 302 wherein the Court of Criminal Appeal held that a joint trial had been productive of a miscarriage of justice. The essential facts of that case were as follows. The three appellants were jointly charged with murder and convicted of that crime following trial by jury. They were charged on the same information as a person named David Carter. Carter was charged with the crime of misprision of a felony and tried by the same jury. He declined to give evidence and was convicted.
The case against Lovegrove was based in part on a record of interview in which he implicated himself, Collie and Kranz in the abduction and murder of the deceased. A key witness for the prosecution in the case against each accused was a person named Brannan. Brannan gave evidence that together with David Carter they witnessed the deceased’s abduction from a unit. There were difficulties associated with Brannan’s identification of Collie and Lovegrove and to a lesser extent Kranz. Brannan gave evidence that in the course of the abduction David Carter said to him: ‘It’s Harry, Crunch and Turtle,’ they being the nicknames of Collie, Kranz and Lovegrove.
The Court of Criminal Appeal held that the joint trial resulted in a miscarriage of justice in the cases of Collie and Kranz. The court considered that notwithstanding Collie and Kranz’s sworn evidence that they did not participate in the abduction and murder of the deceased, Lovegrove’s record of interview implicating them in those crimes was not, standing alone, a sufficient basis for separate trials and that the problem could be met by appropriate directions from the trial judge.
The court, however, considered that the trial had miscarried because the prejudicial effect of the Lovegrove interview was compounded by two other features of the evidence that were gravely prejudicial to Collie and Kranz. First the remarks of David Carter, ‘It’s Harry, Crunch, and Turtle’ constituted hearsay evidence emanating from an eyewitness who could not be cross-examined by reason of his failure to give evidence. The second difficulty was that issues arising out of Lovegrove’s statement let in highly prejudicial material as to rumours concerning the crime that linked Collie and Kranz to the killing. Cross-examination of Lovegrove about the rumours was relevant to an assessment of the reliability of Lovegrove’s statement to police but was prejudicial to his co-accused.
Mr Stokes argued that there were similarities between Collie and the present case in that the statements made by David Carter in Collie and the statement made by Bachra that one of his confederates was a dentist in the army constituted inadmissible hearsay evidence prejudicial to the accused in circumstances where identity is in issue. So much is true. But the similarities between the cases stop there. First, it is not known whether or not the accused Bachra will give evidence. If he does he will be subject to cross-examination unlike David Carter. But more than that, the prejudice that arose in Collie was an accumulation of prejudicial factors which are not present here. The prejudicial effect of the statements made by Carter were compounded by the admission of Lovegrove’s record of interview and his cross-examination on rumours that Collie and Kranz were involved in the murder. There is no similar accumulation of prejudice in the present case. Collie was a decision which turned on a very unusual and special set of facts. (see King CJ at 310-311, Cox J at 319).
Second argument
Mr Stokes submitted that separate trials were appropriate because there was such a “qualitative and quantitative imbalance” between the prosecution cases against the accused Bachra and the accused Singh that the latter would be prejudiced by a joint trial. In other words, the case against the accused Bachra was so much stronger than the case against Singh that the jury might use the former as a makeweight when considering the case against Singh.
This argument is founded on the principle expressed in the joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ in R v Darby (1982) 148 CLR 668 at 678:
In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v The Queen (1979) 44 CCC (2d) 481 requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice. In cases where there is no material distinction in the evidence admissible against both alleged conspirators, the trial judge's advice to the jury that they will either convict or acquit both accused will continue to be appropriate not because of any technical rule but because of the circumstances of the case.
In R v Collie, Kranz & Lovegrove (1991) 56 SASR 302 the Court of Criminal Appeal rejected a submission that the principles governing joint trials had been modified by the views expressed in Darby. King CJ said (at 309-310):
I do not read that passage as affecting the principles discussed in the cases which I have cited. Their Honours in R v Darby (supra) were considering the embarrassment to a jury in the trial of accused persons jointly charged with conspiracy where the cases against the alleged conspirators are significantly different. The problem there arises from the fact that the agreement between the alleged conspirators is the gist of the crime charged. It may be very difficult for a jury which finds that A is guilty of conspiring with B, to find also, because of the difference in the evidence which is admissible against B, that B is not guilty of conspiring with A. For that reason it may be desirable, perhaps even necessary, to achieve a just result in conspiracy cases in which the evidence against the alleged conspirators is significantly different to try them separately. No doubt the same problem may be present to some degree in certain cases of persons accused of committing a crime, other than conspiracy, jointly, and the difference in the evidence admissible against each accused may be an important factor in such cases in the exercise of the discretion as to whether to order separate trials. I do not consider, however, that the passage cited above from Darby's case in any way modifies the accepted principles with respect to joint trials and particularly the principle that ordinarily persons accused of committing a crime jointly ought to be tried jointly…
Similarly Cox J observed (at 321-322):
A significant difference in the respective bodies of evidence led against two accused might well, without more, create difficulties in a conspiracy trial, for the reasons that the Chief Justice has explained. See also R v Brown [1990] VR 820. In other joint trials what is likely to matter is not so much that there are significant evidential differences but that certain evidence admissible against one accused but not against the others might have a tendency to prejudice the others — typified by the statement made out of court by D1 that implicates him in the alleged crime but also, on the face of it, implicates an absent D2 as well. Nevertheless, Darby is a reminder that a marked quantitative imbalance in the Crown cases against different co-accused, whether there is also prejudicial evidence of the more obvious kind I have mentioned or not, is one of the matters to be taken into account; occasionally, but not often, it may be decisive. Cf R v Crawford [1989] 2 Qd R 443, and see generally R v Guldur (1986) 8 NSWLR 12 at 16-17. Always it will be a matter in the end of weighing the competing considerations and deciding what the interests of justice require.
The judgments of King CJ and Cox J recognise that a marked imbalance in the evidence against different accused is a factor to be considered in determining whether or not to grant an application for a separate trial but it does not displace the general principle that ordinarily persons accused of committing crimes jointly ought to be tried together.
In the present case, the evidence implicating the accused Singh in relation to counts 1-4 comprises:
·The identification of Singh from photographs by Rajpara and Shah.
·The presence of Singh’s fingerprints on the vodka bottle.
·The presence of a DNA profile on the cigarette butt that matched Singh’s.
The evidence implicating Bachra in relation to counts 1-4 comprises:
·The identification of Bachra from photographs displayed on the ‘klubsutra’ website by Rajpara.
·The finding of Rajpara’s property in Bachra’s Commodore.
·The evidence that serves to show that he was the person who committed the blackmail offences counts 6-9 and that he, therefore, must have been one of the persons who invaded the unit on the night of 19 September, namely:
· The telephone records which show that calls were made from Bachra’s mobile phone to Shah’s mobile phone on 20 September.
· The finding of the motel key in Bachra’s Commodore.
Plainly there are differences in the nature of the admissible evidence implicating Bachra and that implicating Singh. However, I reject the submission that there is a qualitative or quantitative imbalance such that the case against Bachra is markedly stronger. In my opinion, the evidence which serves to implicate the accused Singh in counts 1-4 is just as strong as the evidence implicating Bachra.
Conclusion
The prosecution case is that the two accused Bachra and Singh were parties to a joint enterprise to commit counts 1-4. The potential for prejudice to the accused Singh by reason of the out of court statements made by Bachra does not render a severance of counts 5-9 or the grant of separate trials necessary. Nor can it be said that there is an imbalance between the case against Singh and the case against Bachra less still one that makes a severance of counts or an order for separate trials imperative. In my opinion, an application of the public policy factors discussed in Demirok (see [38] herein) require the holding of a joint trial.
Order
The application by the accused Singh for severance of counts 5-9 from a joint trial of the two accused on counts 1-4 is refused. The alternative application that the accused Singh be granted a separate trial from the accused Bachra is also refused.