R v Tracey (No 1)

[2005] SASC 355

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Voir Dire)

R v TRACEY & ORS (NO 1)

Reasons for Ruling of The Honourable Justice Nyland

22 September 2005

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL

Six accused charged jointly on the same information - three charged with murder and three charged with impeding the investigation of an offence - whether appropriate for murder charge to be tried with impeding charges - all charges arising out of the same body of evidence - admissibility of evidence - whether accused would be deprived of right to a fair trial - length of trial - inconvenience to witnesses - complicated jury directions in single trial - different nature of the murder charge to the impeding charges - order that impeding charges be separated from murder charge.

Criminal Law Consolidation Act 1935 (SA) s 278, referred to.
R v Assim [1966] 2 QB 249; R v Collie, Krantz and Lovegrove (1991) 56 SASR 302, applied.
Mawaz Kahn & Anor v The Queen [1967] 1 AC 454, distinguished.
Crane v Director of Public Prosecutions [1921] 2 AC 299; R v Liddy (No 2) (2002) 84 SASR 231; R v Barrell and Wilson (1979) 69 CrAppR 250; Liddy v R (2002) Leave to Appeal Refused HCA 14 August 2002; R v Farrell and Cotton (1990) 48 ACrimR 311; R v Middis NSWSC, Hunt J, 27 March 1991 (unreported); The Queen v Conlon & Anor (1982) 30 SASR 176, discussed.
The Queen v Rigney (1975) 12 SASR 30; The Queen v Hogan & Ors (1990) 159 LSJS 297; R v Smith, Turner & Anor (1994) 63 SASR 123; R v Trotter & Ors (1992) 58 SASR 223; R v Clothier and Williams (2001) 122 ACrimR 353; R v Bunting & Ors (No 3) (2003) 230 LSJS 410; Webb and Hay v R (1994) 181 CLR 41; The Queen v Darby (1982) 148 CLR 668; R v Guldur (1986) 8 NSWLR 12; R v Patsalis and Spathis (1999) 107 ACrimR 423; Kamleh v The Queen (2005) 213 ALR 97, considered.

R v TRACEY & ORS (NO 1)
[2005] SASC 355

Voir Dire Ruling as to Application for Separate Trials:

1. John Michael Craig Tracey, Joshua Heath Considine, Michael Andrew Wallace, Naomi Sarah Wallace, Shivonne Anne Tracey and Christine Yvonne Dal Santo have been jointly charged on information with offences arising out of events which took place on 31 July 2002 at Elizabeth Downs, which resulted in the death of Stuart Watson. 

   The charges against the accused:

2. Count 1 on the information alleges that John Tracey, Joshua Considine and Michael Wallace murdered Stuart Watson.

3. Count 2 is a charge against Naomi Wallace of impeding the investigation of an offence on 15 August 2002, and Count 3 is a further charge of impeding on 19 August 2002 against Naomi Wallace for providing false information to the police on each occasion. 

4. Count 4 is a charge against Shivonne Tracey of impeding the police by providing false information to the police on 20 August 2002.

5. Count 5 is a charge against Christine Dal Santo that she impeded the police on 10 August 2002, by providing false information to them.

6. Upon their arraignment each of the accused pleaded not guilty to the charge against him/her.  Pursuant to Rule 9 of the Supreme Court Rules, each of the accused has filed a notice seeking various orders. 

7. On the hearing of the voir dire each of the accused was represented as follows:  John Tracey was represented by Mr Peek QC with Mr Sale.  Joshua Considine was represented by Mr Tothill.  Michael Wallace was represented by Mr Longson.  Naomi Wallace was represented by Mr English.  Shivonne Tracey was represented by Ms Hurley.  Christine Dal Santo was represented by Mr Kane.  Ms Chapman, with Ms Geyer represented the Director of Public Prosecutions.

   Application for separate trials:

8. Each of the accused has applied for an order for a separate trial as follows:

   (a)John Tracey seeks an order that his trial be held as a trial separate from any trial of any of the co-accused, or in the alternative, that his trial be held as a trial together with the co-accused, Joshua Considine and Michael Wallace, who are jointly charged in Count 1, but separate from the other three accused who are charged with impeding offences in Counts 2-5.

   (b)Joshua Considine seeks an order that his trial be separate from the three accused charged with impeding offences in Counts 2-5.

   (c)Michael Wallace seeks an order that his trial be separated from the trial of any of the other accused.

   (d)Naomi Wallace seeks an order that her trial be separated from the trial of John Tracey, Joshua Considine and Michael Wallace with respect to the charge of murder and that it also be separated from the other two accused who are charged with impeding offences.

   (e)Shivonne Tracey seeks an order that her trial be separated from the three accused charged with murder and that she also be separated from the two other accused charged with impeding offences.

   (f)Christine Dal Santo seeks an order that her trial be separated from the trial of the three accused charged with murder.

9. Each of the accused has applied for the exclusion of various items of evidence from his/her trial and those matters are yet to be determined.  In order to determine the separate trial applications I have proceeded on the basis that all of the evidence is admissible at trial without prejudice to further argument on the voir dire as to the exclusion thereof.

   The validity of the joinder of Count 1 with Counts 2-5 as a matter of law:

10. At the commencement of the hearing of the separate trial application, Mr Peek made submissions on behalf of John Tracey, which were adopted by all other accused, that the purported joinder of Count 1, that is the murder charge, with Counts 2-5, that is the impeding charges, was invalid as a matter of law.

11. Although John Tracey seeks an order for his trial to be heard separate from any other accused, in the first instance, Mr Peek directed his submissions to the joinder of the murder charge with the impeding charges.  Mr Peek submitted that at common law there was no power to join the charges on one information as had been done in the present case, with the three accused charged with murder in Count 1 being joined with the three accused charged with impeding offences in  Counts 2-5.

    The Common law:

12. In R v Assim[1], the court said:

    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 are best served by their being tried together, then they can 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.

    [1] [1966] 2 QB 249 (at 261)

13. In The Queen v Rigney[2], however, Bray CJ doubted the correctness of the decision in Assim and said that many, though not all, of the reasons given by Lord Atkinson in Crane v Director of Public Prosecutions[3], for holding that separate indictments against different persons could not be tried together, applied also to separate counts against different persons in the same indictment.  Mr Peek adopted those remarks as correctly stating the common law position and submitted that Assim had been decided incorrectly.

    [2] (1975) 12 SASR 30 (at 45)

    [3] [1921] 2 AC 299 (at 321)

14. Bray CJ went on to say in Rigney (at 46), however, that notwithstanding his lack of conviction as to the conclusion reached in Assim being historically sound, the authority of Assim should be accepted and that apart from exceptions like the rule in Crane’s case, “questions of joinder, be they of offences or of offenders, are matters of practice on which the court has, unless restrained by statute, inherent power both to formulate its own rules and to vary them in the light of current experience and the needs of justice”.

15. Mr Peek nevertheless maintained that Assim was wrongly decided and that the acceptance of that decision in Rigney was incorrect.  He further submitted that the acceptance of Assim in Rigney was obiter as no objection had been taken in Rigney as to invalid joinder.  Assim was subsequently applied by Mullighan J in The Queen v Hogan & Ors[4], and by Perry J in R v Smith, Turner & Anor[5], but Mr Peek submitted that both judges had been in error in so doing.

    [4] (1990) 159 LSJS 297

    [5] (1994) 63 SASR 123

    Section 278 Criminal Law Consolidation Act:

16. Mr Peek further submitted that, irrespective of the common law position, s 278 Criminal Law Consolidation Act 1935 (SA) (CLCA) applied to the joinder of different parties. Section 278 is in the following terms:

    278(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 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.

    (3)     This section does not affect any other provision of this Act or any other enactment permitting more than one charge to be joined in the same information.

17. Mr Peek submitted that in the present case, the joinder of Count 1 with Counts 2-5, was invalid pursuant to this section. He submitted that the words of s 278 were clear and applied both to charges against one accused and to charges against more than one accused. The consequence was that whenever joinder was being addressed, whether it be in relation to one accused or more than one, the test contained in s 278 applied.

18. Mr Peek submitted that if joinder did not come within the requirements of s 278 there was no power or jurisdiction in the court to entitle it to proceed to hear more than one charge. In this case, joinder was precluded by s 278 because the requirements of it were not satisfied as it was not possible to say that Counts 2-5 were founded on the same facts as Count 1, nor did the counts form a series of offences of the same or similar character. Mr Peek submitted that the facts that the charges might possibly be said to have some commonality of topic did not assist the prosecution.

19. In the course of submissions as to this aspect of the matter, Mr Peek referred to the decision of the Court of Criminal Appeal in R v Liddy (No 2)[6] which relied on R v Barrell & Wilson[7] in finding that the joinder of a charge of perverting the course of justice was properly joined with a number of sexual offences as they had a common factual origin.  Mr Peek submitted, however, that R v Barrell & Wilson was not good law in South Australia and should not be followed as in the course of argument for special leave in Liddy[8], the High Court had expressed some doubts as to the correctness of that decision.  Leave was not granted in Liddy, however, so that issue has not yet been determined. 

    [6] (2002) 84 SASR 231

    [7] (1979) 69 CrAppR 250

    [8]   Liddy v R (2002) Leave to Appeal Refused HCA 14 August 2002

20. In considering these matters, it is appropriate to return to the decision of Mullighan J in Hogan (supra). In that case, Mullighan J set out the provisions of s 278 CLCA which was in substantially the same terms as the present section. He then went on to say:

    Although s 278 speaks only of joinder of offences and not of offenders, it may readily be acknowledged that s 278 does not preclude the joinder of accused persons in the one information, nor does any other provision of the Act.

    Justification for the joinder of the accused in the present information must be found in the common law, or as it is sometimes said, in the established practice of the court. (at 306)

21. Mullighan J then referred to Assim (supra) and the passage cited above and concluded (at 308):

    To justify the joinder of the accused in the information, it must appear that the matters which constitute the individual offences are so related, whether in time or by other factors, that the interests of justice are best served by their being tried together.  It is not limited to cases of offenders acting in concert.  Obviously the judgment as to whether the joinder passes such a test must be made on the material available at the time the question is considered.  Also it is made clear in Assim that each case must be determined upon the circumstances which are shown to exist and the categories of cases where joinder of offenders is permissible are not closed.

22. In Smith, Turner & Anor (supra) an application was made for a separate trial by a woman named Altintas who had been charged with the offence of assisting Smith to escape apprehension.  One of the grounds for Altintas’ application was that she was charged with a different offence at law to that which was applicable to the other defendants.  Perry J said (at 136):

    As to that ground, the common law principles under which joinder is permitted justify joinder even where different offences are alleged.

23. Perry J then referred to, and adopted, the passage from Assim cited above and said:

    Here, while it is true that Altintas is charged with a different offence from that upon which the other accused stand trial, it is an offence in which the ‘available evidence’ is closely related both in time and in other factors to the body of evidence upon which the substantive offence is sought to be proved.

    I would have thought that it is ordinarily in the interests of an alleged accessory after the fact to have his or her charge dealt with at the same time as the hearing of the substantive offence. If separate trials were to be contemplated, the conviction of the principal offender or offenders is only prima facie evidence of the commission of the offence as to which accessorial liability is sought to be established: see R v Dawson [1961] VR 773. If the alleged accessory sought to offer evidence going to the question whether or not a principal offence had been committed, the accessory would, in the context of separate trials, inevitably have to call much evidence again. If the accessory is tried with the alleged principal offenders, he or she has the opportunity of participating in the presentation of evidence going to the commission of the principal offence, and may by cross-examination or otherwise have an opportunity of playing a part in the defence to the allegations going to the establishment of the principal offence which it would be difficult to achieve in the context of a separate trial.

24. In R v Trotter& Ors[9], Perry J considered an application for a separate trial by a woman named Jordan who was charged with being an accessory after the fact to an armed robbery.  Perry J accepted the conclusion reached by Mullighan J in Hogan that the joinder of different charges against different accused on one information was not authorised by s 278 CLCA but might be permitted at common law, and again accepted that the common law test was that set out in Assim (supra).  Similarly, in R v Clothier and Williams[10], Williams J said:

    Justification for joinder of the accused in the one information in the present instance is to be found in the common law: see Hogan (1990) 159 LSJS 297 at 306. It was suggested in argument that Criminal Law Consolidation Act 1935 (SA) (CLC Act), s 278 applies, but I do not consider that to be the case. Until its repeal in 1992, s 268(2) of the CLC Act authorised the trial of an accessory after the fact with or without the principal offender but that section was repealed by s 8 of the Statutes Amendment and Repeal (Public Offences) Act 1992 (SA) leaving the topic to be dealt with in accordance with practice and the common law: see Smith (1994) 63 SASR 123 at 137; 75 ACrimR 327 at 340-341.

    [9] (1992) 58 SASR 223

    [10] (2001) 122 ACrimR 353

25. In R v Bunting & Ors (No 3)[11], Martin J also expressed the view that the joinder of the three accused was governed by common law principles. He described s 278(1) CLCA as authorising the joinder of two or more offences in the same information if the charges were founded on the same facts, or form, or are part, of a series of offences of the same or similar character.

    [11] (2003) 230 LSJS 410 (at 462)

26. In my opinion, the weight of authority is against the submissions put by Mr Peek. I consider s 278 CLCA is only concerned with joinder of charges against one accused and that the joinder of a number of accused in one information is governed by the common law.  Although the charges against the three women charged with impeding are not temporally linked to the charge of murder in the sense that none is alleged to have been present at, or involved immediately after the crime, I accept the prosecution submission that the factual circumstances which relate to such matters as false alibis and the whereabouts of Joshua Considine’s mobile phone arise out of a similar body of evidence, and are therefore related to the charge of murder.  In accordance with the principles expressed in Assim (supra) I find, as a matter of law, that the joinder of six accused on the one information is valid.

    The severance of Counts 2-5 from Count 1 as a matter of discretion:

27. I now turn to the question of severance of the charges against the various accused as a matter of discretion.  Before determining the applications by each of the accused, it is appropriate first to consider the principles which are applicable to an application for separate trials.

28. A number of authorities which have considered the question of joint trials were helpfully brought together by King CJ in R v Collie, Kranz and Lovegrove[12].  He said:

    The relevant principles are set out in R v Harbach (1973) 6 SASR 427 at 432 as follows:

    ‘But three things are clear.  The first is that when the accused are charged with committing the crime jointly prima facie there should be a joint trial: R v Pullman [1954] SASR 116 at 121; Kerekes (1951) 70 WN (NSW) 102, per Owen J (at 104). The appellant and Munroe were jointly charged and the Crown case was one of a joint enterprise, at least to rob Meyer and perhaps, if necessary, to kill him. The second is that a joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against one of the accused, though admissible against the other, will be before the jury (R v Pullman; Youthv The King [1945] WN 27) and the third is that it may be ordered notwithstanding that one of the accused or each of the accused is trying to cast the blame for the crime on the other (R v Grondkowski [1946] KB 369), though both of these are highly relevant considerations to the exercise of the discretion: See Grondkowski (supra) at 373; 121.

    There may appear to be an anomaly here.  It may appear strange that material which would be sedulously kept from a jury, if an accused person were being tried alone, should be allowed to go before them when there is another person in the dock on the same charge.  The point is made, with his customary incisiveness, by Dr Glanville Williams in The Proof of Guilt (1955), pp 186-187.  The answer appears to be two-fold: first, that it is the duty of the 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 and that the law assumes that the jury is capable of understanding and willing to heed such admonitions; secondly, that in such cases, and particularly when each of the accused is seeking to cast the blame onto 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: Gibbins and Proctor (1918) 13 Cr App R 134 at 137; Grondkowski; Kerekes (supra).  The second consideration is presumably thought sufficiently cogent for the law to leave it to the judge's direction and warning about the use of evidence or material, such as an unsworn statement, admissible against one accused but not against the other, to act as a sufficient safeguard against injustice’.  (emphasis mine)

    [12] (1991) 56 SASR 302 (at 307)

1. King CJ went on to refer to the following passage from R v Demirok[13]:

   ‘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 retrial 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’.  (emphasis added)

   [13] [1976] VR 244 at 254:

2. Thereafter King CJ referred to his own comments in R v Glover[14] wherein he expressed the principle as follows:

   ‘I take the view that where 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’.

   [14] (1987) 46 SASR 310 (at 312)

3. In Webb and Hay v R[15], Toohey J referred to the discussion of the relevant principles by King CJ in Collie and said:

   I respectfully agree with that discussion which emphasizes that when accused are charged with committing a crime jointly, prima facie there should be a joint trial.  There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others.  There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused.  That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused.

   [15] (1994) 181 CLR 41 (at 89)

4. Although Deane J was in dissent in Webb and Hay, the following statement of principle may also be considered relevant to the present case. Deane J said (at 79):

   I would, however, wish to stress that it is important that general comments by appellate judges about the desirability of placing the whole picture before the jury should not be misconstrued as an implicit endorsement of the notion that a consideration favouring a joint trial is that it will enable evidence which is inadmissible against a particular accused to be placed before the jury charged with the determination of the guilt or innocence of that accused.  Such comments should be understood as referring only to evidence, such as the sworn evidence of one accused, which is admissible against both accused and which might otherwise be unavailable to be led by the Crown.  So far as evidence which is not admissible against both accused, such as a confessional or unsworn statement by one of them, is concerned, the fact that it will be placed before the jury charged with determining the guilt or innocence of the other accused should always be seen as a factor militating in favour of separate trials.

   Nor do I subscribe to the view that the reasons which favour the joint trial of persons who are charged with committing an offence jointly are particularly strong in cases where such persons seek to cast the blame on one another.  Particularly where the accused has made a confessional statement and in jurisdictions where an accused is permitted to make an unsworn statement, the dangers of unfair prejudice to one accused from material which is inadmissible against him or her being placed before the jury seem to me to be exacerbated in such cases.  Far from the desirability of avoiding ‘inconsistent verdicts’ assuming particular importance, there is a particular danger in such cases that popular notions of the need for consistent verdicts may tend to subvert the requirement of proof beyond reasonable doubt.  If, for example, each of two defendants seeks to exculpate himself or herself from guilt of a crime, which both or one of them undoubtedly committed, by casting the entire blame on the other, it is difficult to see any particular relevance of the need for consistent verdicts apart from the superficial and mistaken notion that there would be something ‘inconsistent’ about an acquittal of both.  Indeed, where there is a joint trial in such a case, it is desirable that the trial judge stress to the jury that, while the jury may think it apparent that the crime was committed by at least one of the accused, there would be nothing inconsistent in their finding that the guilt of neither had been proved beyond reasonable doubt.

5. In The Queen v Darby[16] the High Court said (Gibbs CJ, Aickin, Wilson and Brennan JJ) 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 (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.

   [16] (1982) 148 CLR 668 (at 678)

6. In Collie (supra), however, King CJ referred to this passage in Darby and went on to say (at 309-310):

   I do not read that passage as affecting the principles discussed in the cases which I have cited.  Their Honours in Darby 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.

   Later in that judgment, Cox J said (at 321):

   I agree with the Chief Justice that the passage from the joint judgment of Gibbs CJ and Aickin, Wilson and Brennan JJ in R v Darby (1982) 148 CLR 668 at 678, that he quotes in his reasons and upon which the appellants rely, cannot be read as abrogating the established principles relating to separate trials. Had that been their Honours' intention one might have expected them to say so, and they did not say so. Darby (supra) was a conspiracy case and so was the Canadian decision cited in the joint judgment. That the passage was written with the special problems of a conspiracy trial in mind is made clear, in my opinion, by the context and confirmed by their Honours’ encouragement, without qualification, of separate trials ‘in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other’. 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.

7. In New South Wales, the Court of Criminal Appeal has expressed the following views by reference to the decision in Darby (supra). 

   In R v Guldur[17] the court said:

   [17] (1986) 8 NSWLR 12 (at 16)

   That observation was made in the context of a trial for conspiracy, as was the trial before the Supreme Court of Canada in Guimond v The Queen (1979) 44 CCC (2d) 481.  There is admittedly an element of distinction between conspiracy trials and trials for substantive offences, but the broad thrust of the approach taken by the High Court must nevertheless be accepted as flowing over into trials for substantive charges.

   In R v Farrell and Cotton[18], Hunt J referred to Darby in the following way:

   [18] (1990) 48 ACrimR 311 (at 312)

   The Crown sought to distinguish those cases upon two bases. The first basis is that both were conspiracy cases and not trials of a substantive offence (as is the present case). They were so distinguished by the Full Court of Victoria, in Torney (1983) 8 ACrimR 437, in which the appellant and his co-accused had been jointly tried for the substantive offences of murder and armed robbery. It was held by O'Bryan J (at 449), with whom the other members of the Court agreed, that the High Court in Darby had not intended to change the pre-existing practice governing the joint trials of such substantive offences.

   Such a distinction is not available in this State. In Guldur (1986) 8 NSWLR 12 at 16-17; 25 ACrimR 271 at 275 the Court of Criminal Appeal held that, although there was admittedly an element of distinction between trials for conspiracy and trials for substantive offences, the broad thrust of the approach taken by the High Court must nevertheless be accepted as flowing over into trials for the latter. The judgment in that case does, of course, make the important point also that separate trials will not be directed in every case in which some evidence is admissible against one or some but not against all accused. In Oliver (1984) 57 ALR 543 at 547, Priestley JA said on behalf of the Court of Criminal Appeal that it was desirable to have all of the persons alleged to be concerned in the one crime dealt with in the one trial ‘unless positive injustice would be caused’ by such a joint trial. That appears to me, with respect, to be a very good practical approach. I am satisfied that positive injustice would be caused by a joint trial in the present case.

   The second basis upon which the Crown sought to distinguish what was said in Guimond and Darby is that, so far as it can be ascertained, those statements have never been applied in a case where a cut-throat defence has been raised. Domican and Thurgar was not such a case. Reliance is placed upon the approach adopted in such cases by Herron J, and followed in many cases since. In Kerekes (1951) 70 WN (NSW) 102, his Honour as the trial judge refused separate trials, saying (at 103):

   ‘Of these men, two have blamed one, and the remaining one, Kerekes, blamed the other two. In the light of commonsense and reason, it might be contrary really to the true interests of justice if the whole picture was not presented to the jury at the one time.’

   The Court of Criminal Appeal held that his Honour had exercised his discretion on proper principles: Kerekes at 105, 106. In Beaven (1952) 69 WN (NSW) 140 at 142, Herron J (as a member of the Court of Criminal Appeal in that case) expanded upon those views, in these terms:

   ‘If separate trials were had, very often only one half of the picture could be presented to the jury. In order to do complete justice, juries are entitled to see and hear all those who are alleged to have acted in common purpose, and it is neither a rule of law nor of practice that where an essential part of one accused’s defence amounts to an attack on a co-accused there must be separate trials.’

   See also Grondkowski [1946] KB 369 at 372-373.

   In my view, those statements are no longer binding upon me in the light of the decisions in Darby and Guldur, although they must of course be accorded the respect which is due to any views expressed by that very experienced trial judge.

8. In R v Middis[19], Hunt J summarised the relevant principles, which are helpfully set out by Kirby J of the Supreme Court of New South Wales in R v Patsalis and Spathis[20], as follows (at 434):

   In Middis, Hunt J identified the circumstances in which it would be appropriate to order a separate trial. He said this (at p 4):

   ‘Briefly, the relevant principles are that:

   1.    where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and

   2.    where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and

   3.    where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.’

   [19] NSWSC Hunt J, 27 March 1991 (unreported)

   [20] (1999) 107 ACrimR 432

9. Kirby J went on to say that he accepted that the formulation by Hunt J in Middis did not state exhaustively the circumstances in which it would be appropriate to order a separate trial and said (at 435):

   The touchstone must, of necessity, remain general. Is there a risk of positive injustice to the accused were he or she to stand trial jointly with a co-accused?

   Kirby J also said (at 434):

   There is a rule, and a proviso to that rule.  It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial.  That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered (Oliver (1984) 57 ALR 543).

10. In resolving the issues which now arise for decision, it is useful to return to Collie as that decision is of particular relevance to the present circumstances.  Collie, Kranz and Lovegrove were charged with murder.  They were tried on a joint information with three others.  Two were acquitted and the third, David Carter, was convicted of misprision of felony.  The trial judge refused to order separate trials.  In the course of the joint trial, evidence was admitted which was only legally admissible against Carter, but which was highly prejudicial to the appellants.  King CJ said[21]:

    There can be no doubt about the gravely prejudicial character of the statements attributed to David Carter.  He did not give evidence.  The appellants were therefore faced at their trial with hearsay statements purporting to emanate from an eyewitness, who could not be cross-examined by them, directly incriminating them.  If David Carter had not been tried jointly with the appellants, those alleged statements would not have been heard by the jury.   The reasons which indicate a joint trial had little force in relation to David Carter.  He was not charged with committing a crime jointly with the appellants but rather of committing the quite different crime of concealing their crime.  The jury would have lost no advantage if he were not present in the dock and would have been saved the difficulty and embarrassment of hearing the prejudicial statements.  It is true that the separate trial of David Carter would have involved additional expense, and inconvenience to witnesses, but he was charged with a relatively minor crime and the prosecuting authorities would have had to give serious consideration to whether another trial was justified. The learned trial judge directed the jury that the statements referred to above were evidence against David Carter only but I think that, having regard to the nature of the other evidence in the case, it would have been extremely difficult for the jury to remain uninfluenced in considering the case against the three appellants by what they had heard of the statements of a supposed eyewitness.

    The prejudice to Collie and Kranz arising from statements attributed to David Carter was compounded, in my opinion, by evidence, which was inadmissible against them, in the case of Lovegrove.  Lovegrove’s statement to the police implicated them directly.  This is a common problem in a joint trial and ordinarily can be met satisfactorily by an appropriate direction to the jury. In this case, however, the potential for prejudice is increased by the accumulative effect of the statements attributed to David Carter.  What is perhaps more serious, however, is that the issues arising out of Lovegrove’s statement let in highly prejudicial material as to rumours concerning the crime.  Lovegrove’s defence was that his statements to the police concerning his participation in the incident were the product of delusions.  This defence led to cross-examination of Lovegrove as to the means by which he could have acquired information conveyed to the police if he were not present at the murder.  This line of cross-examination elicited answers from Lovegrove about rumours which he had heard in the Elizabeth district implicating Collie and Kranz in the murder.

    I think that, viewing the case as a whole, there is a grave risk that the minds of the jurors were influenced by the combination of hearsay statements by a supposed eyewitness and rumours circulating in the district.  It would have been extremely difficult for the jury to focus attention upon the evidence properly admissible against the appellants uninfluenced by the atmosphere created by the evidence of the hearsay and rumour.  I have reached the conclusion that the joint trial had the effect of depriving all three appellants of a fair trial and that the convictions in consequence of such a trial cannot be sustained.

    Against that background, I now turn to the submissions made on behalf of each of the accused.

    [21] R v Collie (supra at 310-311)

    Relationship of parties:

1. In order to understand the prosecution case against the various accused, it is necessary to have regard to the relationship between them.  The accused who are charged with murder are John Tracey, Joshua Considine and Michael Wallace (Count 1).  Naomi Wallace, Shivonne Tracey and Christine Dal Santo are charged with impeding offences.  Naomi Wallace (Counts 2 and 3) is the sister of Michael Wallace, and the partner of Joshua Considine.  Shivonne Tracey (Count 4) is the sister of John Tracey.    Christine Dal Santo (Count 5) is the partner of Michael Wallace.

   Prosecution case:

   Count 1: 

2. The prosecution allege that John Tracey, Joshua Considine and Michael Wallace jointly committed the crime of the murder of Stuart Watson.  It is alleged that on 31 July 2002, the three of them left John Tracey’s house armed with a loaded rifle to go to a fight at 3 Filsoll Street, Elizabeth Downs where Stuart Watson was later shot.  Before leaving the house, Joshua Considine made phone calls to Jarrod Puro and Craig Bolland, from John Tracey’s home telephone.  The prosecution allege that Joshua Considine received two further calls from Naomi Wallace and Jarrod Puro on his mobile phone whilst enroute to 3 Filsoll Street, and that shortly after the shooting of Stuart Watson, Michael Wallace received two phone calls on the same mobile phone from Jarrod Puro and Matthew Cotton.  It is alleged that Michael Wallace was the driver of the car which went to the house in Filsoll Street, and that John Tracey and Joshua Considine were the passengers.  It is alleged that within moments of arriving at Filsoll Street, John Tracey fired the rifle, thereby killing Stuart Watson.  Thereafter all three fled the scene.

3. Evidence relating to the whereabouts of Joshua Considine’s mobile phone is relied upon by the prosecution to prove the involvement of John Tracey, Joshua Considine and Michael Wallace in the shooting that night.  The location of mobile phone towers would be relied upon to give approximate areas in which the mobile phone was used with the various calls made/received which on the prosecution case would place the accused at the scene of the shooting.

4. Joshua Considine, however, told the police in a statement dated 19 August 2002, that his mobile phone was in the possession of Shivonne Tracey at the relevant time and that he collected it from her the following day.  The prosecution case is that Joshua Considine lied about those matters.  It is alleged that John Tracey and Michael Wallace were aware of and complicit in the lies about the mobile phone and that is part of the evidence relied upon by the prosecution to prove the joint charge against the three of them.

   Counts 2 and 3: 

5. The prosecution allege that Naomi Wallace intended to impede the police in the investigation by giving false information to them, in particular to police officer Peter Loch on 15 August 2002 (Count 2) and in her statement on 19 August 2002 (Count 3).  In particular, the false information alleged against her relates to (a) the whereabouts of Joshua Considine’s mobile phone during the afternoon/evening of 31 July 2002, going into the morning of 1 August 2002 and (b) the whereabouts of Joshua Considine during the afternoon/evening of 31 July 2002, going into the morning of 1 August 2002.  The effect of those statements is that Joshua Considine was at home at the relevant time and his mobile phone was in the possession of Shivonne Tracey.

   Count 4: 

6. It is alleged that Shivonne Tracey intended to impede the police investigation by giving false information to them, in particular to Peter Loch on 20 August 2002 concerning the whereabouts of Joshua Considine’s mobile phone during the afternoon/evening of 31 July 2002, going into the morning of 1 August 2002.  In that statement she said she was in possession of the phone at the relevant time.

   Count 5: 

7. The prosecution alleged that Christine Dal Santo intended to impede the police investigation by giving false information to police, in particular to Peter Loch and Lynton Strange during an interview which took place on 10 August 2002.  In particular it is alleged that the false information concerned (a) the whereabouts of her white Commodore car during the evening of 31 July 2002 and (b) the whereabouts of Michael Wallace during the evening of 31 July 2002.

8. In her interview, Christine Dal Santo told the police that she was the owner of a white Commodore, registered number UYL 791 and that she was in charge of the vehicle on the night of the murder and that her vehicle was parked at her home all day and night.  She said that Michael Wallace arrived home at about 4.30 pm and had remained home that evening and had not left the house.

   Admissibility of evidence:

9. In arguing that the trial of Count 1 should be severed from Counts 2-5, counsel for each of the accused relied upon the different nature of the case against those accused charged with murder as opposed to the case against each of the alleged impeders.  In addition, each counsel referred to items of evidence which would not be admissible against a particular accused but which would be led at a joint trial thereby creating considerable prejudice to the particular accused which was not capable of being cured by direction.

10. It would appear that the evidence which is not admissible against all the accused, can be categorised as follows:

    (1)Conversations recorded by the use of listening devices.

    (2)Interviews and statements made by each accused to the police in the absence of others.

    (3)Out of court statements made by various accused to other witnesses in the absence of other accused.

    Listening Device evidence:

11. At trial the prosecution propose to rely on evidence of conversations recorded by means of a listening device involving the various accused and others.  These have been reduced to 48 CD’s (although the prosecution in the course of argument indicated they do not seek to use CD 43 which is conceded not to be admissible against any accused).

12. A précis of the relevant portions of each CD, the participants in that conversation, and what is thereby sought to be proved, is set out in a schedule which is annexed to the outline of submissions filed on behalf of the Director of Public Prosecutions (DPP).  Ms Chapman, in her document headed “Evidence Tables” also sets out particulars of evidence which is alleged to be admissible against all accused and I will discuss those matters later in these reasons.

    John Tracey:

13. Mr Peek prepared a similar schedule which is marked “Chart A” and is annexed to his written submissions.  That chart identifies those conversations in which John Tracey is present.  Of the 47 CD’s set out in the schedule John Tracey is alleged to be present during 15 of them, namely:

    With Michael Wallace, Joshua Considine and Naomi Wallace: 12 and 13.

    With Joshua Considine and Michael Wallace: 20.

    With Joshua Considine: 48.

    With Michael Wallace: 14, 15 and 17.

    With Shivonne Tracey:  21, 22, 23 and 24.

    With other persons not charged: 25, 26, 27 and 28.

    Joshua Considine:

14. Joshua Considine is involved in 24 conversations, namely:

    With Michael Wallace, John Tracey and Naomi Wallace: 12 and 13.

    With John Tracey: 48.

    With Michael Wallace: 20.

    With Naomi Wallace: 5, 6, 7, 8, 9, 10, 11, 18, 19, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 39.

    Michael Wallace:

15. Michael Wallace is alleged to be involved in eight conversations, namely:

    With John Tracey, Joshua Considine and Naomi Wallace: 12 and 13.

    With John Tracey: 14, 15 and 17.

    With Joshua Considine: 20.

    With unknown male: 16.

    Naomi Wallace:

16. Naomi Wallace is alleged to be involved in 25 conversations, 20 of which are with Joshua Considine as set out above.

    With Michael Wallace and John Tracey: 12 and 13.

    With persons not charged:1, 2 and 4.

    Shivonne Tracey:

17. Shivonne Tracey is alleged to be involved in 11, namely:

    With John Tracey: 21, 22, 23 and 24.

    With Christine Dal Santo: 40.

    With unknown/not charged: 41, 42, 44, 45, 46, 47.

    Christine Dal Santo:

18. Christine Dal Santo is alleged to be involved in two, namely:

    With Shivonne Tracey: 40.

    With a person not charged: 3.

19. Mr Peek referred to various matters of prejudice arising out of the listening device evidence.  By way of example, in CD 1, statements made by Naomi Wallace in the absence of John Tracey purport to put John Tracey at the scene of the alleged crime.  In the same conversation, there is a statement “John got fuckin, he’s gotta go to court over knuckle dusters, fucken that he got busted for three years ago”.  There is also a conversation in the same CD relating to stolen cars or car parts.  In CD 2, Naomi Wallace, in the absence of John Tracey, says “Yeah, um basically they, the boys, … Josh; Michael and Josh, didn’t even know that John brought the gun”.

20. It is unnecessary, however, to go through each one of the recordings to resolve this issue.  It can be seen from the above summary that, even if an order is made separating Count 1 from the other counts, there remains a substantial body of evidence which would be admitted at a joint trial of the accused charged with murder, although not necessarily admissible against all of them.  In this regard, Ms Chapman pointed out that the joinder of the s 241 CLCA allegations with the murder trial would only involve the addition of the following items of evidence:

    (a) Listening device conversations: 1, 2, 3, 4, 40, 41, 42, 44, 45, 46 and 47, (although Ms Chapman indicated that on the joint trial of all accused she would not lead the contents of CD 2).

    (b)Statement of Naomi Wallace dated 19 August 2002 and interview dated 19 December 2002. 

    (c)Statement of Shivonne Tracey dated 28 August 2002.

    (d)Interviews of Christine Dal Santo dated 10 August 2002 and 10 December 2002.

21. Ms Chapman submitted that any prejudice arising from the admission of these conversations in a joint trial was minimal as many of the conversations which involved an accused in the absence of a co-accused, and therefore inadmissible against that particular co-accused, involved topics of conversations that were the subject of other taped conversations by that particular accused.

    Statements of the co-accused:

22. Mr Peek set out in the chart marked “B”, statements and interviews of co-accused which are inadmissible against John Tracey.  They are as follows:

    (1)   Statement of Joshua Considine dated 19 August 2002.

    (2)   Record of interview of Michael Wallace on 10 August 2002.

    (3)   Statement of Naomi Wallace dated 20 August 2002.

    (4)   Record of interview  of Naomi Wallace on 19 December 2002.

    (5)   Statement of Shivonne Tracey dated  20 August 2002.

    (6)   Record of interview of Shivonne Tracey on 12 December 2002.

    (7)   Record of interview of Christine Dal Santo on 10 August 2002.

    (8)   Record of interview of Christine Dal Santo on 20 December 2002.

23. Mr Peek’s Chart “C” is a list of the evidence of proposed witnesses which refer to out of court statements by Joshua Considine and other witnesses, namely:

    (1)   Statement of Alan Considine dated 7 January 2003.

    (2)   Statement of Marcia Sumner dated 9 January 2003.

    (3)   Statement of Marcia Sumner dated 23 February 2005.

    (4)   Statement of Craig Bolland dated 25 November 2002.

    (5)   Statement of William Lang dated 18 November 2002.

24. It is, however, unnecessary at this stage of the proceedings to consider the matters raised in Charts “B” and “C” as those matters relate more to the application for severance inter se rather than the application to sever Count 1 from Counts 2-5.

    Joshua Considine:

25. Mr Tothill adopted Mr Peeks’ submissions as to the law and also submitted that the case against Joshua Considine was very different to the case against those accused charged with impeding.  Mr Tothill, in his submissions primarily focused on statements made by Christine Dal Santo and Naomi Wallace in their interviews with the police.  The prosecution case against Dal Santo centres on lies allegedly told by Dal Santo to the police concerning the whereabouts of a white Commodore owned by her and the whereabouts of Michael Wallace.  The police interviewed Dal Santo on two occasions, in the course of which the police put to her what Mr Tothill submitted was an impermissible narrative of events.  This included evidence that was hearsay and inadmissible as against Joshua Considine but extremely prejudicial to him.

26. Mr Tothill submitted that the prejudice arose in the form of impermissible comments by the police with respect to ultimate issues to be determined by the jury suggesting that Dal Santo was lying to them and that all the independent circumstantial evidence pointed that way.  Mr Tothill submitted that the police took a similar approach in the record of interview conducted with Naomi Wallace on 19 December 2002.

27. Ms Chapman submitted, however, that the references to Joshua Considine in the interview with Christine Dal Santo on 10 August 2002 were limited to the following:

    (1)That Joshua Considine is Rebecca’s sister and Naomi’s boyfriend (p7).

    (2)At the time of a phone call from Naomi Wallace, Naomi did not mention that Joshua was there, but I assume he would’ve been (p8).

    (3)That Michael Wallace knows Rebecca through Josh (p16).

28. The references to Joshua Considine in Christine Dal Santo’s interview of 10 December 2002 were as follows:

    (1)That Naomi and Joshua’s landline rang her address at 7.18 pm (p6).

    (2)At 9.47 there was a call from her landline to Naomi and Josh’s place (p11).

    (3)At 10.02 pm, Naomi and Joshua’s home landline contacts her landline again (p12).

    (4)Joshua Considine is Naomi’s boyfriend and a friend of Michael’s (p13).

29. Ms Chapman submitted that there was nothing prejudicial to Joshua Considine in either of these interviews.  The jury would be directed that evidence of out of court statements made by a co-accused, such as occurred with respect to these two interviews, was not evidence against Joshua Considine when they came to consider the case against him.  Ms Chapman also submitted that the statement of Naomi Wallace dated 19 August 2002, and her interview of 19 December 2002 were exculpatory of Joshua Considine’s involvement in the shooting as she in effect provided an alibi for him at the time of the crime.

    Michael Wallace:

30. In his submissions, Mr Longson acknowledged the principle that where several accused are charged with committing a crime jointly, they should normally be tried together.  Mr Longson, however, referred to the table of conversations recorded by listening devices upon which the prosecution proposed to rely at trial and pointed out that Michael Wallace was a participant in only eight of those conversations.

31. Mr Longson referred to a conversation recorded on 13 January 2003 at 8.20 pm, between Joshua Considine, Naomi Wallace and Jody Prior (CD 36) which contains the following passage:

    Jody:         ‘You didn’t tell him to do it.’

    Joshua:      ‘Hey?’

    Jody:         ‘You didn’t tell him to do it.’

    Joshua: ‘We all, we all decided together to take the thing so that’s what it’s gonna come down to.’ (my underlining)

32. Mr Longson argued that the use of the pronoun “we” by Joshua Considine inferred that Michael Wallace and John Tracey were present and that the Crown was likely to infer that the use of the words “the thing” related to the gun.  Mr Longson also referred to the conversation recorded by a listening device on 13 January 2003 at 10.24 pm between Joshua Considine and Naomi Wallace CD37 which contained the following passage (at p3):

    Joshua:‘Me and fucken … (inaudible) … they’re looking at life.’

    Naomi:‘And Michael cause he was driving, he, he’s even …’

    Joshua:‘… 25 years.’

    Naomi:‘Michael is definitely, probably Michael might even be looking at more Joshua, because usually the drivers go for more because for the simple fact that they’ve seen the incident and then they’ve gone ohhh well now I’ll get you out of here and they’ve taken off.  Do you know what I’m saying?  Do you know what I’m saying?’

    Joshua:‘… (inaudible) …’

    Naomi:‘That’s that’s how they usually look at it, usually look at the driver as having more as, than the shooter.’

33. Mr Longson submitted that although Wallace did not participate in this conversation it was highly prejudicial to him as, notwithstanding proper directions, a jury could not be expected to make what would amount to an artificial distinction between the various accused on issues central to the Crown case.  Mr Longson also referred to a number of out of court statements made in the absence of Michael Wallace, namely:

    (a)An alleged conversation between Marcia Sumner and Joshua Considine, referred to in the declaration of Marcia Sumner dated 9 January 2003 at p 3 [para 5]. 

    (b) An alleged conversation between Alan Considine, Joshua Considine and John Tracey referred to in the declaration of Alan Considine, dated 24 March 2003 at p 2 [paras 2-5].

    (c) An alleged conversation between Troy Murray and John Tracey referred to in the declaration of Troy Murray dated 4 March 2003 at p 7 [para 2].

    (d)An alleged conversation occurred between Troy Murray and Joshua Considine referred to in the declaration of Troy Murray dated 4 March 2003 at p 7 [para 3].

    (e)Alleged threats made by unknown persons referred to in the declaration of Troy Murray dated 4 March 2003 at p 8 [para 2].

34. Mr Longson submitted that the evidence arising out of the above statements was so prejudicial that if led at a joint trial it would cause Michael Wallace to receive an unfair trial and he should therefore be granted a separate trial.  Each of these matters, however, is more relevant to the inter se application for separation between the accused on Count 1 as opposed to the severance of Counts 2-5 from Count 1.

    Naomi Wallace:

35. Mr English also submitted that the prosecution case against Naomi Wallace was starkly different from the case against those accused charged with murder.  There was no evidence that Naomi Wallace had participated in the killing of Stuart Watson, nor that she had been present at or near the crime scene, nor that she rendered assistance to any one or more of the alleged principal offenders immediately following the commission of the offence.  The prosecution case against Naomi Wallace relied solely upon the allegation that she provided false information to the police concerning the whereabouts of Joshua Considine and his mobile phone when she made statements to the police on 15 August 2002, and 19 August 2002 respectively.  Those statements were, however, provided to the police more than two weeks after the alleged murder.  Further, they were not volunteered but were actively sought by the police.

36. Mr English accordingly submitted that the alleged conduct of Naomi Wallace was too remote in time and circumstance to justify a joint trial with the three accused charged with murder.  Mr English further submitted that only a small part of the evidence which would be presented by the prosecution in a joint trial involved Naomi Wallace.  He submitted that a separate trial for her could be disposed of in four to five days.  A separate trial for Naomi Wallace would not prejudice nor compromise the prosecution case against her or her co-accused.  He submitted that it was fundamentally unfair to Naomi Wallace that she should be used as a “stalking horse”[22], in what was essentially a murder trial projected to run over two to three months, when her charges could be disposed of in a matter in days without disadvantage to the jury or the prosecution.  Mr English acknowledged that the cost and convenience to witnesses were important considerations in the exercise of the discretion to grant separate trials.  As, however, Naomi Wallace was not charged with respect to a common enterprise to commit murder it was likely that a separate trial would involve little if any extra cost to the State and inconvenience to witnesses.  Further, Mr English argued that Naomi Wallace’s inclusion in a joint trial had the potential to complicate and protract proceedings.  He referred to the comments of Hunt J in Farrell and Cotton (supra) wherein he said (at 314):

    There is, it was claimed, a large body of evidence admissible against both accused, and that it is therefore in the interests of the administration of justice that they be tried jointly.  Cases such as Flaherty (1968) 89 WN (Pt 1) (NSW) 141 AT 145, 150 AND Palmer (1968) 90 WN (Pt 1) (NSW) 188 at 196-197, 202 emphasise that such interests are as relevant as the interests of the parties; see also Grondkowski at 372. Such interests are important, but I would add that recent experience of joint trials suggests that some of them would have taken longer to try than it would have taken to try each accused separately: see, eg, McPhail (1988) 36 ACrimR 390.

    [22] The Queen v Conlon & Anor 30 SASR 176 (at 185) per Cox J

1. Mr English further submitted that a joint trial was likely to involve a jury in being administered complicated directions of law and fact which might lead to confusion.  In particular, where listening device evidence was admissible against Naomi Wallace and one or more of the accused charged with murder, the jury might have significant difficulty in distinguishing and understanding how the same body of evidence was to be applied in relation to proof of murder, as opposed to proof of accessorial liability under s 241 CLCA.  Mr English also submitted that a further fact militating in favour of separate trials concerned the practical operations of s 241.  Even if the prosecution were to prove that Naomi Wallace knew or believed that her co-accused committed an unlawful killing and then initially impeded the investigation of the offence, the charge was not necessarily thereby made out.  Pursuant to the provisions of s 241(2) CLCA the applicant was to be found not guilty unless it was established that the principal offender was guilty of murder or manslaughter.  Thus a separate trial for Naomi Wallace would not only reduce the length and complexity of a joint trial, but it might do away with the necessity of any trial at all for Naomi Wallace if the co-accused were acquitted of the charge of murder/manslaughter.

2. Mr English submitted that there was a large body of highly prejudicial listening device material which would be admitted in a joint trial but which would be inadmissible against Naomi Wallace.  This included a number of intercepted conversations involving the three accused charged with murder to which Naomi Wallace was not a party.    These included the following:

   (1)CD 48 which is a conversation between John Tracey and Joshua Considine on 20 December 2002 in which Joshua Considine mentions that he would tell Craig Bolland (Pommie) that Naomi got arrested because of what he said to the police.

   (2)CD 15 which involves John Tracey and Michael Wallace on 20 December 2002 in which there is mention of trying to assure Naomi and others that the boys had it all under control and would intimidate witnesses to make sure it would work out.

   (3)CD 20 involving John Tracey, Joshua Considine and Michael Wallace on 5 January 2003 in which there is discussion on Naomi Wallace’s bail conditions.

   (4)CD 21 to 28 involving John Tracey, Shivonne Tracey and another person on 9 January 2003, where there is a discussion of the use of physical violence against Alby Considine. 

3. Ms Chapman maintained, however, that it was clear from the prosecution case that Naomi Wallace was not a party to any plans to engage in any intimidatory proposal of witnesses.  Mr English submitted, however, that the conversations complained of suggested that Naomi Wallace was a willing party to plans of her co-accused actively to engage in criminal conduct which amongst other things involved a willingness to physically intimidate potential prosecution witnesses.  Even a strongly worded direction to the jury would not cure the prejudicial effect of that evidence in a joint trial.  This was particular so, knowing the close relationship which existed between Naomi Wallace, her de facto Joshua Considine, and her brother, Michael Wallace.

4. Naomi Wallace also seeks a separate trial from Christine Dal Santo on the basis that the prosecution case against her is significantly different to that of Dal Santo.  Ms Chapman submitted, however, that the fact that Dal Santo was alleged to have provided a false alibi for Michael Wallace, and Naomi Wallace was alleged to have provided a false alibi for Joshua Considine, was not a proper basis for a separate trial.

5. Naomi Wallace also seeks a separate trial from Shivonne Tracey on the basis of conversations recorded by the listening devices (CD 21 to 28).  Ms Chapman pointed out, however, that Naomi Wallace was not a party to that conversation and therefore not a party to the language of those conversations.  Further, on the prosecution case, Naomi Wallace did not know of the plans to intimidate Alby Considine until he had been intimidated by John Tracey and Joshua Considine (CD 29).  It would therefore be contrary to the evidence to suggest that Naomi Wallace was part of a plan to intimidate Alby Considine.

   Shivonne Tracey:

6. Ms Hurley also adopted the outline and argument put by Mr Peek with respect to the validity of the joinder of the murder charge with the trial of the accused charged with impeding.  In para 5 of her written outline, Ms Hurley set out the following factual basis upon which she sought an application for separate trial for Shivonne Tracey:

   (a)Evidence sought be led by the prosecution against all accused, if a joint trial of all accused was maintained, was either hearsay as against Shivonne Tracey or its prejudicial effect outweighed its probative effect.  In this regard Ms Hurley referred to all the LD transcripts.

   (b)Evidence sought to be led by the prosecution against all accused, if a joint trial of all accused was maintained, would have the effect of introducing evidence of unchanged acts as against the principle offenders that was not admissible against Shivonne Tracey.  Ms Hurley referred to LD 17: (i) at p 8; (ii) at pp 21, and 23; (iii) at pp 1 and 2; and (iv) by inference in LD’s 13, 15, 48, 17, 30, 29, 32 and 34.

   (c) Evidence sought to be led by the prosecution against all accused in a joint trial was evidence that was inadmissible as against Shivonne Tracey but a jury could improperly use that evidence to the prejudice of the character of Shivonne Tracey, namely the evidence relating to the principals’ conversations with respect to intimidating witnesses.  Shivonne Tracey was alleged only to be present during part of one of these conversations, but a direction to the jury would not be capable of minimising the highly prejudicial nature of this evidence to the fair trial of Shivonne Tracey.

   (d)Evidence sought to be led by the prosecution against all accused, in a joint trial of all accused was evidence of conversations in the absence of Shivonne Tracey and therefore inadmissible against her.  R v Walsh (1998) 105 ACrimR 448 per Brooking JA (at 469):

   … the fundamental notion that the guilt of an accused person can be proved only by evidence admissible against that person and the fundamental principle which excludes hearsay evidence, there being no exception to that principle within which the case can be brought.  It is true that the accessory after is not a party to the principle offence.  But the commission of that offence by the principle is an element of the offence committed by the accessory and, like the other elements, must be proved by evidence admissible against the accessory.

   (e)Evidence sought to be led by the prosecution against all accused, if a joint trial of all accused was maintained, is evidence that would preclude the applicant from running a defence she is entitled to run: R v Walsh (supra).

   (f)Evidence sought to be led by the prosecution against the other two female accused, if a joint trial of the three female accused was ordered, was evidence of conversations in the absence of Shivonne Tracey and were inadmissible against her.

   (g)If Shivonne Tracey was successful in her Rule 9 application in which she seeks her trial be separated from the trial of the three accused charged with murder, and her statement to police of 20 August 2004 was ruled inadmissible, if she were ordered to stand trial with the accused Naomi Wallace then:

   (i)     Naomi Wallace’s statement to police and her record of interview which would be sought to be led by the prosecution, were inadmissible against Shivonne Tracey, yet the prosecution would need to lead that evidence in the prosecution of Naomi Wallace, that would in effect nullify a favourable ruling on Shivonne Tracey’s Rule 9 notice.

7. Ms Hurley submitted that in view of the various matters, the associated admissibility and prejudicial issues that arose were incapable of being cured by appropriate directions to the jury.

   Christine Dal Santo:

8. Mr Kane’s submissions on behalf of Christine Dal Santo were in similar terms.  He submitted that the evidence relating to discussions between the three alleged principals with respect to strategy and plans had nothing to do with Christine Dal Santo’s state of mind on 10 August 2002 when it is alleged that she impeded the police.  Those statements were, however, highly prejudicial to her.  Mr Kane also mentioned in the course of his submissions that Dal Santo was pregnant and was due to be confined on a chart on 20 May 2005 and that might ultimately lead to some difficulty in the orderly conduct of a joint trial were it to proceed in the near future.

9. Ms Chapman argued, however, that any prejudice arising from the admission in a joint trial of the conversations between the principals could be dealt with by a clear direction that such conversations were inadmissible against Christine Dal Santo.  Further, it was not as though admissible material was bolstering an otherwise weak case against Christine Dal Santo as she was party to an out of court conversation (with a person not charged with any offence) in which she effectively admitted her own guilt by referring to herself and Michael Wallace as “first time offenders”.

   Prosecution submissions:

10. I earlier referred to the “Evidence Tables” annexed to Ms Chapman’s outline, which includes a list of evidence which is said to be admissible against all accused.  The table also includes a list of evidence admissible against John Tracey and Michael Wallace, and other evidence consisting of statements/interviews by the accused and sets out their admissibility in the following way:

    1.     Statement of John Tracey on 10 August 2002: admissible against John Tracey.

    2.     Statement of Joshua Considine on 15 August 2002, statement of Nelson (Shell Service Station video shows Naomi in phone box on 1 August 2002): admissible against Joshua Considine.

    3.     Interview of Michael Wallace on 10 August 2002, statement of Eli Buckley (bank records): admissible against Michael Wallace.

    4.     Statement of Naomi Wallace on 15 August 2002 (dated 19 August 2002), interview of Naomi Wallace on 19 December 2002, statement of Nelson (Shell Service Station video shows Naomi Wallace in phone box on 1 August 2002): admissible against Naomi Wallace.

    5.     Interviews of Christine Dal Santo on 10 August 2002 and 10 December 2002: admissible against Christine Dal Santo.

    6.     Statement of Shivonne Tracey on 10 August 2002, statement of Nelson (Shell Service Station video shows Naomi Wallace in phone box on 1 August 2002): admissible against Shivonne Tracey.

11. In addition, there is reference to “other evidence in out of court conversations with other people”.  This refers to a statement of Marcia Sumner dated 9 January 2003 which refers to conversation with Joshua Considine and which is admissible against him.

    Mawaz Khan & Anor v The Queen[23]:

    [23] [1967] 1 AC 454

12. Before argument as to these matters was concluded, Ms Chapman made further submissions by reference to the case of Mawaz Khan.  Although the table referred to above describes each of the interviews by an accused as admissible only against that accused, Ms Chapman indicated that she had since reconsidered the matter.  She submitted that Mawaz Khan was authority for the proposition that when two or more accused concoct a false story, and that false story is separately told by each of them out of court, the false story is then admissible against each of them, not as evidence as to the truth of the matter, but going to the fact that each had concocted a similar false story. 

13. Ms Chapman accordingly submitted that the statement made by Joshua Considine in his statement dated 19 August 2002 as to the whereabouts of his mobile phone, and the statement of Naomi Wallace dated 20 August 2002 as to that matter and the statement of Shivonne Tracey dated 20 August 2002 with respect to the same matter were cross-admissible, not for the truth of what they said (which the prosecution say were lies), but to establish that the three accused had collaborated to concoct a false story.  That was therefore relevant to the state of mind of both Naomi Wallace and Shivonne Tracey.  The fact that each of them had told the same false story was something which would go to the proof of guilt of Joshua Considine and his involvement in the murder.  In other words, that Joshua Considine told a false story about an important piece of evidence which put him at the scene of the crime. 

14. Ms Chapman made similar submissions with respect to the statements made by Christine Dal Santo in her interviews and the statements made by Michael Wallace in his interview, as on the prosecution case they gave a joint false alibi.  The statements made by each of them with respect to that matter were therefore admissible against the other to prove that they had got together and concocted a false story.  That was something that went to the state of mind and knowledge of Christine Dal Santo and was a piece of circumstantial evidence which established the guilt of Michael Wallace.

15. Similarly, that part of the statement of Naomi Wallace in which it is alleged she gave a false alibi for Joshua Considine, by saying that he was home and Joshua Considine’s statement that he was at home, established that they had concocted a false joint story which was therefore admissible against each of them.  On that basis the evidence was cross-admissible with respect to the various accused and was a further factor to be taken into account when considering whether there should be a joint trial.

16. In Mawaz Khan (supra), the prosecution case with respect to the two appellants charged with murder, rested on circumstantial evidence connecting them with the scene of the crime.  It relied strongly on the fact that each appellant had in his statement sought to set up a joint alibi which the evidence showed to be false.  The statement of each appellant was then used against him.  The trial judge had directed the jury that (at 461):

    A statement which is made by an accused person in the absence of the others is not evidence against the others; it is evidence against the maker of the statement, but against him only …The Crown’s case here is not that these statements are true and that what one says ought to be considered as evidence of what actually happened.  What the Crown say is that these statements have been shown to be a tissue of lies and that they disclose an attempt to fabricate a joint story. … if you come to that conclusion then the fabrication of a joint story would be evidence against both.  It would be evidence that they had co-operated after the alleged crime.

17. The court held that not only could the statements of each appellant be used against each appellant individually, as the judge directed, but they could, without any breach of the hearsay rule be used, not for the purpose of establishing the truth of the assertions contained therein, but for the purpose of asking the jury to hold the assertions false and to draw inferences from their falsity.

18. A similar approach was taken in Kamleh v The Queen[24], a judgment of the High Court delivered on 3 February 2005.  Kamleh was charged jointly with Zappia with the crime of murder, although they were subsequently granted separate trials.  Kamleh and Zappia were separately interviewed by police and gave substantially similar accounts of their movements on the night in question.  Both relied on the alibi that they went together to a nightclub and had remained there at the relevant time.  The trial judge found that, in collaboration, the two of them had concocted a false account with respect to the time of their arrival at the club with a view to providing each other with an alibi.  The trial judge held his reflected a consciousness of guilt on the part of Kamleh.  That finding was affirmed by the High Court on appeal.

    [24] (2005) 213 ALR 97

19. The reasoning behind the approach in Kamleh is obvious.  There is, however, a clear distinction between the circumstances of cases such as Kamleh and Mawaz Khan as opposed to this case.  In the former cases, false stories were provided by the two accused who were jointly charged with participating in the murder.  Evidence which established that they had collaborated in concocting a false alibi, was clearly relevant and admissible against each of them with respect to that charge.  That is quite a different situation from the circumstances of this case where it is sought to make the evidence as to the purported false story cross admissible between the murder charge and the impeding charges.  The alleged false story constitutes the respective impeding charge whereas it would be an item of circumstantial evidence in the murder charge.  I also think that there would be considerable difficulty in appropriately directing the jury as to the manner in which purported lies told by a particular accused was to be taken into account with respect to each of them.

    Length of trial:

20. In the course of her submissions, Ms Chapman referred to Smith and Turner  (supra) and submitted that an offence pursuant to s 241 might be properly joined with the offence of murder and further submitted that there were important considerations relevant to joint trial of the murder charge with the s 241 allegation.  These included administrative matters such as court time and the public expense if more than one trial was to be conducted as the trials in each would be considerably lengthy and the policy of the law was to reach finality as expeditiously as possible.  It was also necessary to consider the convenience of a large number of witnesses.  Perhaps most significantly, Ms Chapman pointed out that s 241 (2) CLCA required the Crown to prove the commission of the principle offence.  Consequently there was a substantial body of evidence which was admissible both in the trial of the three accused charged with murder as well as the trial of the three accused charged with the s 241 offences. 

21. I am mindful of the fact that in the event of separate trials being ordered, the conviction of the principal offender is only prima facie evidence as to the commission of the offence as to which accessorial liability is sought to be established.  This is a matter adverted to by Perry J in Trotter (supra).  At the conclusion of the argument on the voir dire however, each of the accused charged with a s 241 offence filed an affidavit giving various undertakings. 

22. The affidavit of Naomi Wallace dated 21 March 2005 (Exhibit VDNW030) contains the following undertakings:

    If Her Honour Justice Nyland grants my application for a separate trial from the three accused on Count 1 of the Information, and if there is a verdict of guilty of murder or manslaughter returned by the jury with respect to the accused Joshua Considine then on the basis of the matters referred to in the preceding paragraphs, I am prepared to admit and accept that for the purpose of s241 (2) (Supra) I will not re-agitate at my separate trial on Counts 2 and 3 whether ‘… the principal offender…’ committed the offence charged.

    If Her Honour Justice Nyland grants my application for a separate trial from the three accused on Count 1 of the Information, and if there is a verdict of guilty of murder or manslaughter returned by the jury with respect to the accused John Tracey and Michael Wallace then on the basis of the matter referred to in the preceding paragraphs I am prepared to undertake that I will not put the DPP to proof of the conviction of John Tracey and Michael Wallace.

    However, I agree to be bound by the undertaking contained within the preceding paragraph 7 hereon on the following conditions:-

    (a) That the DPP will not commence my separate trial until the expiration of the appeal period (at present 21 days) within which John Tracey, Joshua Considine and Michael Wallace can lodge an appeal against conviction;

    (b)If John Tracey, Joshua Considine or Michael Wallace lodges an appeal against conviction within the appeal period, that my separate trial will not commence until he has received a judgement on appeal.” (paragraphs 6, 7 & 8)

1. Naomi Wallace subsequently gave sworn evidence in which she affirmed the contents of her affidavit (Exhibit VDNW030) and confirmed that she would honour the undertakings contained therein even if she were to change her legal representation.

2. Shivonne Tracey filed an affidavit sworn on 23 January 2005 (Exhibit VDST031).  Paragraphs 6 and 7 contain the following undertakings:

   If Her Honour Justice Nyland grants my application for a separate trial from the 3 accused charged on count 1 of the information, and if there is a verdict of guilty of Murder or Manslaughter returned by the jury with respect to the accused Joshua Considine then on the basis of the matters referred to in the preceding paragraphs, I am prepared to admit and accept that for the purpose of S,241 (2) (supra) I will not re-agitate at my separate trial on count 4 whether ‘… the principle offender…’ committed the offence charged.

   If Her Honour Justice Nyland grants my application for a separate trial from the 3 accused charged on count 1 of the information, and if there is a verdict of guilty of Murder or Manslaughter returned by the jury with respect to the accused John Tracey and/or Michael Wallace then on the basis of the matters referred to in the preceding paragraphs, I am prepared to undertake that I will not put the DPP to proof of the conviction of John Tracey and/or Michael Wallace.

3. Paragraph 8 (Exhibit VDST031) states:

   However, I agree to be bound by the undertaking contained within paragraph 6 and 7 herein only on the following conditions:

   (a)That the DPP will not commence my separate trial until the expiration of the appeal period (at present 21 days) within which John Tracey, Michael Wallace and Joshua Considine can lodge an appeal against conviction;

   (b)If John Tracey, Michael Wallace or Joshua Considine lodges an appeal against conviction within the appeal period, that my separate trial will not commence until each has received a judgement on appeal.

4. Shivonne Tracey also gave sworn evidence in which she confirmed the undertakings contained in that affidavit and agreed that she accepted those undertakings even though her counsel may change.

5. Christine Dal Santo swore an affidavit on 21 March 2005 (Exhibit VDCD032).  She also gave sworn evidence in which she confirmed the undertaking contained in that affidavit which was in the following terms:

   If Her Honour Justice Nyland grants my application for a separate trial from the three accused charged on Count 1 of the Information, and if there is a verdict of guilty of murder or manslaughter returned by the jury with respect to the accused Michael Wallace, then on the basis of the matters referred to in the preceding paragraphs, I am prepared to admit and accept that I will not re-agitate or re-argue at my separate trial on Count 5 whether ‘… the principle offender ..’ committed the offence charged.

   If Her Honour Justice Nyland grants my application for a separate trial from the three accused charged on Count 1 of the Information, and if there is a verdict of guilty of murder or manslaughter returned by the jury with respect to the accused John Tracey and/or Joshua Considine then on the basis of the matter referred to in the preceding paragraphs I am prepared to undertake that I will not ask or require the DPP to prove the conviction of John Tracey and Joshua Considine. (pars 6 and 7)

6. Paragraph 8 (Exhibit VDCD032) also contained the following provision:

   However, I agree to be bound by the undertaking contained within paragraphs 6 and 7 only on the following conditions:

   (a) That the DPP will not commence my separate trial until the expiration of the appeal period (at present 21 days) within which John Tracey, Joshua Considine or Michael Wallace can lodge an appeal against conviction;

   (b)If John Tracey, Joshua Considine or Michael Wallace lodges an appeal against conviction within the appeal period, that my separate trial will not commence until they have received a judgment on appeal.

7. At the conclusion of the evidence as to these matters, Ms Chapman asked whether at any subsequent trial following the conviction of any or all of the accused, John Tracey, Joshua Considine or Michael Wallace, with a charge of murder/manslaughter, there would be an agreed fact in accordance with the undertakings:

   1.That the crime of murder/manslaughter had been committed with respect to Stuart Watson, and

   2.That the particular accused who were/was convicted of the crime of murder/manslaughter had committed that crime.

8. Counsel for Naomi Wallace, Shivonne Tracey and Christine Dal Santo each confirmed that was agreed.  My concern as to the administrative difficulty and expense involved in multiple trials has therefore been alleviated by those undertakings.

   Conclusion:

9. In my opinion, the views expressed by King CJ in Collie particularly where he discussed what he described as the “gravely prejudicial character of the statements attributed to David Carter”[25] are particularly persuasive and, in my view, are applicable to the circumstances of this case.

   [25] R v Collie & Ors (supra) (at 310-311)

10. On the basis that there is a joint trial of the three accused charged with murder in Count 1, without the other charges, there still remains a large body of evidence which would be inadmissible against all three and which would therefore need to be the subject of careful jury directions.  To require the jury, at the same time, to consider directions relating to evidence arising with respect to the impeding charges, which are obviously of a different nature to the murder charge, albeit arising out of the same body of evidence would, in my opinion, result in an accumulation of complicated directions.  This would create a situation of extreme difficulty for the jury to clearly understand exactly what evidence was properly admissible with respect to each accused. In my opinion, that would lead to a substantial risk that the various accused would be deprived of a fair trial.

11. On 30 March 2005 I therefore ruled:

    1.     Counts 2-5 should be severed from Count 1.

    2.     Count 1 should proceed first and Counts 2-5 should not proceed until at least 21 days after a verdict is returned with respect to Count 1.

    3.     In the event of an appeal being lodged against any conviction recorded with respect to Count 1, the separate trial should not commence until judgment has been given on appeal.

12. I was mindful of the fact that there were further inter se applications for separate trial with respect to Count 1, but I deferred my decision in relation to that aspect of the matter pending resolution of evidentiary matters on the voir dire and further submissions from counsel.  Similarly, I did not reach any final decision as to separate trials between those accused charged with impeding, as it was agreed by those accused that was a matter that should properly await the outcome of the trial of Count 1.