Suppressed - [2019] WASC 324

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BLURTON [2019] WASC 324
CORAM:   VAUGHAN J
HEARD:   3 SEPTEMBER 2019
DELIVERED          :   9 SEPTEMBER 2019
FILE NO/S:   INS 12 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
MALCOLM STIRLING BLURTON
First Accused
CLINT JAMES HORTON
Second Accused

Catchwords:

Criminal law - Practice and procedure - Application for separate trials - Whether likely prejudice to the accused - Whether directions could guard against likely prejudice - Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA), s 133

Result:

Application dismissed

Category: B

Representation:

Counsel:

Prosecution	:	J G Nicholls
First Accused	:	K Pearson
Second Accused	:	J J Morris

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
First Accused	:	Justine Fisher Barrister & Solicitor
Second Accused	:	Morris Law Pty Ltd

Cases referred to in decision:

Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Herbert v The State of Western Australia [2016] WASCA 235
Kalani v The State of Western Australia [2013] WASCA 132
R v Braysich [2006] WASCA 220; (2006) 166 A Crim R 109
R v Pinkstone & Ors [2001] WASC 137
R v Wood [2000] WASC 64
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
Ruthsalz v The State of Western Australia [2018] WASCA 178
Smith v The Queen [2007] WASCA 163; (2007) 35 WAR 201
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Carlino [2014] WASC 174
The State of Western Australia v Herbert [No 2] [2016] WASC 222
The State of Western Australia v Karolides [2017] WASCA 111
The State of Western Australia v Micalizzi [2010] WASCA 147
The State of Western Australia v Russell [2009] WASCA 154
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302

VAUGHAN J:

Summary

Clint Horton is charged with two offences which are counts 1 and 2 on an indictment dated 2 May 2019. A co‑accused, Malcolm Blurton, also faces counts 1 and 2. In addition the indictment charges Mr Blurton with a further four offences (counts 3 to 6). Mr Horton has applied under s 133(4)(a) of the Criminal Procedure Act 2004 (WA) for an order that he be tried separately from Mr Blurton.
The application for a separate trial is based on the contention that Mr Horton will be prejudiced in the trial if his trial on counts 1 and 2 proceeds at a trial in which Mr Blurton is tried on counts 3 to 6 (and all the more so if the indictment is amended to add a new count 3). It is said that evidence against Mr Blurton in relation to counts 3 to 6 (and the new count 3) will not be admissible against Mr Horton.
For the reasons developed below I have come to the conclusion that the prejudice to Mr Horton can be guarded against by directions to the jury. Accordingly, Mr Horton's application for a separate trial is refused.

Factual background

Mr Horton and Mr Blurton have been joined in an indictment that alleges that:
1.On 24 May 2018 at Mount Nasura [Mr Blurton and Mr Horton] entered or were in the place of [Ms C] without her consent, with intent to commit an offence therein. And that [Mr Blurton and Mr Horton] were armed with dangerous weapons or instruments, namely a shotgun and a machete. And that [Mr Blurton and Mr Horton] were in company with each other. And that immediately before the commission of the offence [Mr Blurton and Mr Horton] knew or ought to have known that there was another person in the place. And that the place was ordinarily used for human habitation.
2.On the same date and at the same place [Mr Blurton and Mr Horton] stole from [Ms C], with threats of violence, mobile phones, a wallet and its contents, a watch and assorted jewellery items the property of [Ms C]. And that [Mr Blurton and Mr Horton] were armed with dangerous weapons or instruments, namely a shotgun and a machete. And that [Mr Blurton and Mr Horton] were in company with each other.
3.On 26 May 2018 at Gosnells [Mr Blurton] unlawfully detained [Mr N].
4.On the same date at Gosnells [Mr Blurton] stole from [Mr N], with threats of violence, a sum of money and a mobile phone the property of [Mr N]. And that [Mr Blurton] was armed with a dangerous weapon, namely a shotgun.
5.On the same date at Gosnells [Mr Blurton] attempted unlawfully to kill [Mr P].
6.On or about 28 May 2018 at Canning Vale [Mr Blurton] made a threat to unlawfully kill police officers.
At the outset of the hearing of the application counsel for the State informed the court that the State intended to amend the indictment to add a new count 3 in the following terms:
On 25 May 2018 at Kelmscott [Mr Blurton] was armed with a dangerous weapon, namely a 12 gauge double shotgun, in circumstances likely to cause fear to [Ms B] or other persons.
Counsel for Mr Blurton and Mr Horton were only informed of the intended amendment immediately before court commenced. In the circumstances counsel for Mr Blurton was unable to deal with the intended amendment (the intended amendment necessitating instructions from Mr Blurton). The question of the intended amendment was stood over to the next status conference. It was accepted, however, that I should consider the application for a separate trial on the basis that the new count 3 was also to be tried with the existing counts 1 to 6. It is appropriate to do so; that is the position that is most advantageous to Mr Horton in assessing the application for a separate trial. I will refer to the proposed amended count 3 as the 'new count 3'. I will continue to refer to the existing counts 1 to 6 under the indictment dated 2 May 2019 as counts 1 to 6. The amended indictment proposes that existing counts 3 to 6 be renumbered as counts 4 to 7 respectively.
Counts 1 and 2 arise from a home invasion type offence. The offences are alleged to have occurred late in the afternoon of Thursday, 24 May 2018 in Mount Nasura. The State alleges that there were two co‑offenders, Mr Blurton and Mr Horton. Mr Blurton is alleged to have been armed with a 12 gauge double barrel shotgun. Mr Horton is alleged to have been armed with a machete. The two accused are alleged to have entered Ms C's residence, at a time when she and four other people were present, and to have demanded that those present hand over phones and other property. It is alleged that items were stolen including two phones, a purse containing $150 and a black bag.
Mr Horton is alleged to have threatened to harm Ms C's dog and to have placed the machete against Ms C's throat. No injury was sustained. Mr Blurton is alleged to have threatened to shoot Ms C in the leg if she tried anything.
Mr Horton was arrested shortly after the alleged offences the subject of counts 1 and 2. It is alleged that police officers witnessed Mr Horton fleeing Ms C's residence from a rear door armed with a machete and carrying a black bag. When arrested Mr Horton is alleged to have been wearing an ammunition belt containing 17 rounds of live ammunition for a 12 gauge shotgun.
Mr Horton has been remanded in custody since the events of Thursday, 24 May 2018. That is of particular relevance as all of the subsequent counts occur after 24 May 2018.
New count 3 is alleged to have occurred on Friday, 25 May 2018. As to the alleged circumstances of new count 3 counsel for the State referred me to the statement of Ms B. The statement records that a person, allegedly Mr Blurton, was in the garage of Ms B's Kelmscott residence (and nearby) between 8 and 9 pm on 25 May 2018. Ms B was present as were others. It is alleged that Mr Blurton was carrying a gun and handled bullets from the gun while speaking to Ms B. Ms B gives a description of the gun and says she was very scared because she thought she was going to die. Mr Blurton is alleged to have run off after police sirens were heard. On the State's case the gun was the same 12 gauge shotgun as was in Mr Blurton's possession on the other occasions.
The alleged offences the subject of counts 3 (ie the existing count 3) and 4 are said to have occurred two days after the events allegedly involving Mr Horton, namely, during the evening of Saturday, 26 May 2018. Mr Blurton is alleged to have been at premises in Gosnells armed with a 12 gauge shotgun. Mr N attended the address to collect cash relating to a debt. Mr Blurton is alleged to have ordered Mr N to lie face down on the ground and to have demanded money. A small amount of money and a mobile phone are alleged to have been stolen. Mr N is alleged to have been held on the ground for 10 to 20 minutes while Mr Blurton pointed the shotgun at him.
During the incident Mr Blurton is alleged to have taken a call on Mr N's phone from Mr P (described as an associate of Mr N's). Mr P is said to have agreed to collect Mr N. After the phone call Mr Blurton is alleged to have walked Mr N to a car and the car is said to have been driven to the Southern River Tavern ‑ where the events the subject of count 5 are alleged to have occurred.
Count 5 is a charge of attempted unlawful killing. It concerns the alleged firing by Mr Blurton of a 12 gauge shotgun at close range to a motor vehicle in which there were two occupants, at a carpark in Gosnells, shortly after the alleged offences the subject of counts 3 and 4. The car with Mr Blurton and Mr N was being driven by another person. Mr N is said to have been in the front passenger seat with Mr Blurton lying in the rear passenger seat holding the 12 gauge shotgun. As the car approached the vehicle in which Mr P was sitting, Mr Blurton is alleged to have pointed the shotgun out of a window at Mr P and to have fired one shot. Mr P is said to have been struck by pellet rounds in his right upper arm, chest and left side of his face.
Count 6 concerns an alleged threat to kill that Mr Blurton is said to have made to police officers during his arrest at Canning Vale late in the night on Monday, 28 May 2018. Mr Blurton is alleged to have stated words to the effect of '[y]ou come in and I will shoot you' when members of the police force attended an address at which Mr Blurton was present to arrest him. The State's case is that at the time of his arrest Mr Blurton was in possession of a 12 gauge double barrel shotgun and 12 rounds of live ammunition.
There is no suggestion by the State that Mr Horton had any involvement in the alleged offending of Mr Blurton on 25 May 2018 (ie new count 3), 26 May 2018 (ie existing counts 3 to 5) or 28 May 2018 (ie existing count 6). To the contrary Mr Horton was in custody as at the time of those alleged offences.
On the State's case it is relevant that Mr Blurton was in possession of a 12 gauge shotgun, with ammunition, for each of the four occasions. The State says that is a 'common factual thread'. Apart from that the State says that the justification for joining counts 1 and 2 with counts 3 to 6 (and new count 3) is that they form or are a part of a series of offences alleged to have been committed by Mr Blurton which are of the same or a similar character.
The State alleges that the various offending alleged against Mr Blurton is cross‑admissible against him but accepts that evidence in relation to the events that are alleged to have occurred on 25, 26 and 28 May 2018 is inadmissible in the case against Mr Horton.

Principles on application for separate trial

Section 85(1) of the Criminal Procedure Act 2004 (WA) provides that sch 1 to the Act has effect in relation to indictments and charges in them. An indictment must comply with the requirements of sch 1, div 2 (s 85(2)). Clause 7(3) of sch 1 provides that an indictment may charge one or more persons with two or more offences if, among other things, the offences form or are a part of a series of offences of the same or a similar character or where the offences are alleged to arise substantially out of the same or closely related acts or omissions. Clause 7(4) of sch 1 provides that an indictment may charge two or more persons with, among other things, committing the one offence.
Clause 9(1) of sch 1 provides that if an indictment contains two or more charges, the charges must be tried together unless a court orders otherwise under the Criminal Procedure Act 2004 (WA). Clause 9(2) similarly provides that if one charge charges two or more accused, they must be tried together unless a court orders otherwise under the Act.
The purpose and object of cl 7 and cl 9 of sch 1 the Criminal Procedure Act 2004 (WA) is readily comprehendible by reference to reasons of long‑standing principle and policy explaining why persons charged with committing an offence jointly ought to be tried together: consistency in decision‑making; the facilitation of a single and final inquiry into matters arising out of or involving common issues of fact; and the promotion of the due and expedient administration of criminal justice.[1]
[1] The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 [25] - [26] (Bowen); Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 [128].
Counsel for Mr Horton did not submit that the counts were not properly joined in the indictment. To the contrary it was expressly accepted that the counts were properly joined on the same indictment.[2] The application before me was one for severance. Mr Horton sought an order under s 133(4)(a) of the Criminal Procedure Act 2004 (WA) that he be tried separately from Mr Blurton. Any such separate trial would only be as to counts 1 and 2.
[2] ts 23.
Section 133 of the Criminal Procedure Act 2004 (WA) deals with the court ordering separate trials. Relevantly, it provides:
(1)The powers in this section may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.
(2)A court may amend or cancel an order made under this section.
(3)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order:
(a)that the accused be tried separately on one or more of the charges; and
(b)the prosecutor to tell the court the order in which the charges will be tried.
(4)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order:
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
(5)In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court:
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if —
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
Sub‑sections 133(3) and (4) are cognate provisions. Accordingly, in broad terms, decisions explaining the principles relevant to s 133(4) apply by analogy to s 133(3) and vice versa.[3]
[3] The State of Western Australia v Karolides [2017] WASCA 111 [23] (Karolides).
The principles that apply on an application under s 133(4)(a) for an order for a separate trial are well‑established:
(1)The prima facie position that there should be joint trials is not easily displaced. This is due to the strength of the policy considerations, already referred to (see par 21 above), which inform the statutory requirement that there should be a joint trial unless otherwise ordered.[4]
[4] Bowen [30]; The State of Western Australia v Russell [2009] WASCA 154 [61].
(2)If no likelihood of prejudice is demonstrated it is not open under s 133(4)(a) to make a separate trials order.[5] However, a conclusion that an accused would be likely to be prejudiced at a joint trial does not necessarily require that a separate trial be ordered. It merely enlivens the discretion to make such an order.[6]
[5] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [98], [99(2)], [101] (Donaldson).
[6] Bowen [60]; Donaldson [95]; The State of Western Australia v Carlino [2014] WASC 174 [27].
(3)The discretion under s 133(4)(a) is not enlivened until the court is satisfied of two matters. First, that an accused is likely to be prejudiced 'in the trial'. Second, that the likely prejudice is caused by the fact that the indictment also charges one or more other accused. Reasonable grounds must exist upon which the court can properly be satisfied of those two elements.[7]
[7] The State of Western Australia v Micalizzi [2010] WASCA 147 [23] - [24] (Micalizzi).
(4)The expression 'in the trial' means in the hearing at which the verdict on each charge the subject of an indictment is determined on the evidence adduced at that hearing. Thus the matter said to give rise to the likely prejudice must impact or affect what happens in the trial. The likely prejudice must be actual, not assumed, and must be in the trial itself.[8] The prejudice must be apparent on facts agreed or proven and not based on speculation or hypothesis.[9]
[8] Karolides [25]; Micalizzi [25].
[9] The State of Western Australia v Russell [56].
(5)Prejudice for the purpose of s 133(4) may stem from circumstances other than the admission of otherwise inadmissible and prejudicial evidence.[10] It is accepted, however, that those circumstances (ie the reception of inadmissible and prejudicial evidence) may constitute prejudice which enlivens the discretion.[11] Indeed, in this context the 'most obvious cause of prejudice' has been said to be evidence that is admissible against one accused but not another.[12]
(6)There is no impermissible prejudice from a joinder of charges or accused where evidence on one charge is admissible on other charges.[13]
(7)In deciding whether to make an order under s 133(4) it is open to the court ‑ by reason of s 133(5) ‑ to decide that any likelihood of prejudice can be guarded against by direction to the jury.[14] In consequence the court may decline to order separate trials.[15] In making that decision the starting point is the law's general presumption that the jury will accept and faithfully apply the trial judge's directions.[16]
(8)However, there will be cases in which the prejudice is so great that it cannot confidently be concluded that a direction will overcome the prejudice.[17]
(9)The question of whether a direction can guard against the prejudice to an accused from incriminating evidence that is admissible only against a co‑accused will usually involve two issues:[18]
(a)First, will an average jury be capable, as an intellectual exercise, of performing the task thus given to them?
(b)Second, is the prejudice likely to be so great in the circumstances that it would not be reasonable to expect the jury to leave the prejudicial evidence out of account against the particular accused even though it is inadmissible against him or her?
(10)It has been suggested that a separate trial will usually be ordered where: (a) the evidence against one accused is significantly weaker than against the others; (b) the evidence against the others contains material that is highly prejudicial to the accused although inadmissible against him or her; and (c) there is a real risk that the weaker prosecution case against the accused will be made immeasurably stronger by reason of the prejudicial material.[19]
[10] Micalizzi [27]; Karolides [28].
[11] See eg Karolides [34].
[12] The State of Western Australia v Carlino [27].
[13] Donaldson [101].
[14] Karolides [26], [33]; Donaldson [95], [98], [99(4)].
[15] Karolides [26]; Donaldson [98].
[16] Karolides [33]; The State of Western Australia v Russell [61]; Bowen [31], [57].
[17] Karolides [33]; The State of Western Australia v Russell [61]; Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [63] - [65] (Zammit); Bowen [32].
[18] Karolides [34]; The State of Western Australia v Russell [61]; Bowen [32], [55].
[19] Zammit [63] - [64].

Once the discretion is enlivened the overriding question is whether separate trials are required to ensure that the accused receives a fair trial.[20]
[20] Karolides [29]; Kalani v The State of Western Australia [2013] WASCA 132 [76].
Different views have been expressed as to the scope of the discretion under s 133(3) once enlivened. On the narrow view the discretion to order severance would be exercised if ‑ and only if ‑ the accused is likely to suffer prejudice from a joint trial that cannot be guarded against by a judicial discretion.[21] On that view there is no room to consider administrative matters or even matters such as the possibility of inconsistent verdicts.[22] The broader view is that the discretion, once enlivened, permits attention to a range of considerations (including, for example, the costs of the trial).[23]
[21] Bowen [6] - [8], [26].
[22] Bowen [7].
[23] Bowen [67]; cf Russell v The State of Western Australia [343] - [350], [413]. See also Micalizzi [28].
It is unnecessary to address that difference any further in these reasons. Mr Horton's application was advanced only in terms of likely prejudice by reason of reception of evidence on counts 3 to 6 (and the new count 3) in relation to Mr Blurton that could not be guarded against by a judicial direction.

The submissions on the application

Mr Horton contended that he was likely to be unfairly prejudiced in a trial on counts 1 and 2 should the jury considering the case against him hear evidence in relation to counts 3 to 6 (and all the more so if new count 3 was added). The self‑evident point was made that the events of counts 1 and 2, on the one hand, and the events of counts 3 to 6 (and new count 3), on the other, involved different factual scenarios. Mr Horton contended ‑ and the State did not contest ‑ that the evidence in relation to the other counts was not cross‑admissible against him on counts 1 and 2.
The primary basis on which a separate trial was sought for Mr Horton was the prejudice Mr Horton believed he would suffer as a result of Mr Blurton's additional charges. Mr Horton contended that:
•the weight and nature of that material was such that a jury would not be able to disentangle the allegations in relation to Mr Blurton and counts 3 to 6 (including new count 3) from the admissible evidence against Mr Horton in relation to counts 1 and 2; and
•the volume of the prejudicial material was such that even with the strongest direction there would be an unacceptable risk that Mr Horton would not receive a fair trial.
Counsel for Mr Horton contended that the volume of the prejudicial material would have an 'avalanche' effect on Mr Horton ‑ it was said the evidence in relation to the other counts was such that a jury would be unable to excavate Mr Horton from beneath a landside of prejudicial material.
The contended for prejudice was elaborated upon in oral submissions. Counsel for Mr Horton said that it would be open to the jury to characterise Mr Blurton as having undertaken an ongoing course of interconnected criminal conduct that amounted to a crime spree. There was a risk, according to the submission, that the jury would see the alleged course of criminal conduct as something that Mr Horton was part of. Counsel suggested that Mr Horton might be swept up in the case against Mr Blurton and the more limited case against Mr Horton would not be dealt with separately and distinctly on its merits. In support of that submission it was said that the majority of the evidence would not relate to Mr Horton. The concern was expressed that, by association, Mr Horton would be prejudiced at a joint trial as the evidence against Mr Blurton would overwhelm and subsume the jury. Counsel for Mr Horton said that there were too many charges against Mr Blurton, and it was too complex, to disentangle the complaints against Mr Blurton and Mr Horton.
Counsel for Mr Horton also highlighted that the most serious charge was count 5 ‑ the attempted unlawful killing charge ‑ and this was solely directed to Mr Blurton.
The State accepted that Mr Horton could suffer prejudice in the trial by reason of the fact that Mr Blurton faced additional charges. The State thus conceded that the discretion under s 133(4)(a) was enlivened. However, the State contended that any such prejudice could be readily guarded against by appropriate judicial direction. The State said that the court should be satisfied that Mr Horton will receive a fair trial.
Importantly, the State informed the court that, in terms of the manner in which it is intended to present the State case, the State will do so sequentially. The State will first call those witnesses relevant to counts 1 and 2 before moving on to the evidence relating to the other counts. Accordingly, the State will commence the trial with the evidence going to counts 1 and 2. (However, counsel for the State, quite properly, drew my attention to the fact that the prosecution brief currently contains a ballistic report that, among other things, addresses an alleged drive‑by shooting in early May 2018. I was informed that the State had determined not to proceed with any charge in relation to this incident. The State does not intend to lead any evidence as to this matter at the trial. Accordingly, despite being mentioned in the prosecution brief, this matter may be ignored for the purpose of the application.)
Counsel for the State said that it was no part of the State's case that Mr Horton knew of Mr Blurton's alleged tendency or capacity to behave in an increasingly violent way before 24 May 2018. There was said to be no evidence which suggested such knowledge. The State emphasised that counts 1 and 2 were the first offences in time. The State submitted that a 'separate consideration' type direction would be adequate and this was all the more so as the evidence would be dealt with sequentially. Dealing with the evidence sequentially would, in the State's submission, clearly delineate between the evidence relevant to counts 1 and 2 and the other counts. It would also, according to the State, assist in countering the concern that Mr Horton might be prejudiced by reason of association with Mr Blurton.
The witnesses relevant to counts 1 and 2 are Ms C and two other civilian witnesses together with a series of police officers.
The State informed the court that one of the civilian witnesses, a Gavin Taylor, will give evidence of an alleged conversation between Mr Blurton and Mr Taylor that occurred after the events of 24 May 2018. The State accepts that this conversation is not admissible against Mr Horton. So too the State accepts that evidence of alleged post‑24 May 2018 conduct on the part of Mr Blurton, as is also intended to be the subject of Mr Taylor's evidence, is not admissible against Mr Horton.
Mr Taylor is said to be the only civilian witness who has 'mixed' evidence to give (ie evidence that cuts across both counts 1 and 2, on the one hand, and counts 3 to 6 and new count 3, on the other). Otherwise the police officers who were involved in and investigated the events of 24 May 2018 are different to the police officers who were involved in and investigated the events that involved Mr Blurton to the exclusion of Mr Horton.
Based on the parties' submissions the central issue on the application is whether ‑ assuming that Mr Horton is likely to be prejudiced in a trial of counts 1 and 2 because the indictment also charges Mr Blurton with other counts ‑ the likely prejudice can be guarded against by a direction to the jury.
Significantly, the basis for the application for an order for a separate trial was not that there should not be a joint trial of Mr Blurton and Mr Horton on counts 1 and 2. Counsel for Mr Horton accepted that there would be no basis for an order for a separate trial if what was contemplated was simply a joint trial of Mr Blurton and Mr Horton on counts 1 and 2.[24] It was accepted that there was no difficulty in a joint trial on counts 1 and 2, involving Mr Horton with Mr Blurton, which ended in a full stop drawn at the arrest of Mr Horton.[25] It was, however, contended for Mr Horton that prejudice would arise because, with the joinder of counts 3 to 6 on the indictment (and all the more so with the possible addition of new count 3), the jury trying Mr Horton would also hear the evidence against Mr Blurton on those additional counts.
[24] ts 22.
[25] ts 22.
Accordingly, the concern that arose and grounded the application was as to likely prejudice in the trial to Mr Horton in being tried with Mr Blurton where Mr Blurton faced the other charges as well as counts 1 and 2.[26]
[26] ts 22.

Disposition

The State conceded that the discretion under s 133(4) of the Criminal Procedure Act 2004 (WA) was enlivened. That concession was properly made. It is well understood that some prejudice to one or more co‑accused will often occur in any joint trial.[27] Mr Horton is likely to be prejudiced in the trial of the indictment because it also charges Mr Blurton. The likely prejudice arises as the jury will also hear the evidence against Mr Blurton on the other counts of the indictment. This is a case ‑ as is once again properly accepted by the State ‑ where the evidence against Mr Blurton in relation to the counts on the indictment other than counts 1 and 2 will not be admissible against Mr Horton. Mr Horton is likely to be prejudiced absent a direction to the jury as to the use which the jury may make of the evidence as against each of the accused. Absent a direction to the jury there is an unacceptable risk that the jury may impermissibly rely on that inadmissible evidence in the case against Mr Horton.
[27] Bowen [61].
It is also the case that, while a significant portion of the evidence at trial will be directed to counts 1 and 2, the bulk of the evidence will focus on the other counts as solely directed to Mr Blurton. In that regard counsel for Mr Horton was correct in characterising the alleged offending of Mr Blurton in relation to count 5 as being the most serious of the charges.
The discretion to order a separate trial being so enlivened the question is whether, in the present case, the prejudice which the State concedes Mr Horton is likely to suffer in consequence of evidence being adduced in relation to Mr Blurton can be guarded against by judicial direction.
The fact that in a joint trial a considerable body of evidence may be led which is inadmissible against a particular accused does not of itself dictate an order for separate trials.[28] It is common in a joint trial that evidence admissible against only one accused is received in evidence.[29] Ordinarily the fact that the jury will hear evidence which is admissible against one co‑accused alone does not, of itself, require that a separate trial be ordered.[30] The authorities establish ‑ and s 133(5) makes plain ‑ that the circumstance that joinder will result in evidence that would otherwise be inadmissible against one of the accused being heard by the jury is not, of itself, necessarily a sufficient reason for ordering separate trials.[31] As was said recently by a unanimous Court of Appeal in Karolides:
The fact that evidence is admissible against one accused, but not against another, or that evidence is admissible on one charge, but not in relation to another, is not of itself a sufficient reason to order separate trials. It is common in a joint trial that evidence admissible against only one of two or more accused is received into evidence. Similarly, it is common in a trial of more than one charge against an accused that evidence may be admissible in respect of only one of the charges.[32]
[28] R v Pinkstone & Ors [2001] WASC 137 [152].
[29] Russell v The State of Western Australia [130].
[30] Ruthsalz v The State of Western Australia [2018] WASCA 178 [206].
[31] Zammit [60] (referred to with approval in Smith v The Queen [2007] WASCA 163; (2007) 35 WAR 201 [37]).
[32] Karolides [32].
Directions are commonly made to guard against prejudice to an accused in this position. As was said by Corboy J in The State of Western Australia v Herbert [No 2]:
A trial judge is required to indicate to the jury where evidence that is inadmissible against one accused is led against another accused in a joint trial. The jury should be advised of the limited use that may be made of the evidence at the time that it is elicited as well as in the trial judge's final directions. The trial judge should clearly identify the evidence and direct the jury on its use in the case against each accused. Similarly, a trial judge is required to identify for the jury what evidence is admissible on each count in an indictment that contains multiple counts.[33]
[33] The State of Western Australia v Herbert [No 2] [2016] WASC 222 [29(d)].
The nature of the direction, and when it should be given, was also referred to by Malcolm CJ in R v Wood[34] in terms that were apparently approved of by Buss JA (as his Honour then was) in Bowen.[35] As Buss JA summarised, the trial judge should identify for the jury the evidence that is relevant and admissible in relation to each co‑accused, and should direct them as to the use of that evidence. Malcolm CJ had stated more fulsomely:
In a joint trial of two or more accused, when evidence is admissible against one but not another, it is necessary for the trial Judge to point this out to the jury when the evidence is given or during the summing up or preferably on both occasions. In R v Tool it was suggested that it is desirable that it be done both when the evidence is given and in the summing up. The evidence against each should be dealt with separately and considered separately. (citations omitted)
[34] R v Wood [2000] WASC 64 [9].
[35] Bowen [56].
I understood the State's suggested 'separate consideration' direction to be a direction of the type referred to in the two preceding paragraphs. That type of direction was also outlined by the Court of Appeal in Herbert v The State of Western Australia.[36]
[36] Herbert v The State of Western Australia [2016] WASCA 235 [47]. See also The State of Western Australia v Herbert [No 2] [42]. Karolides refers to a different form of common direction in dealing with multiple charges for the one accused (at [49]) and notes that such directions are 'readily capable' of being understood by a jury (at [50]).
It is accepted, at least in the ordinary case, that a properly instructed jury is capable of distinguishing between evidence that is admissible (and therefore usable) against one accused person but not admissible (and therefore not to be taken into account) in relation to another.[37] That is consistent with the principle that, until the contrary is demonstrated, it must be accepted that the jury will accept and faithfully apply a judicial direction.[38]
[37] Zammit [65] (referred to with approval in Smith v The Queen [37]).
[38] Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22.
In considering the question of whether a likelihood of prejudice could, in a given case, be guarded against by a direction to the jury, it is necessary to undertake a detailed evaluation of the respective bodies of evidence.[39] The authorities suggest that consideration be given to whether the evidence could be 'quite readily segregated and distinguished'[40] as opposed to being a 'complicated mixture' of admissible and inadmissible evidence as between the two accused which the jury could not reasonably be expected to analyse in detail.[41] An alternative formulation is to consider whether the jury will be required to disentangle evidence or findings.[42] In the absence of such 'complexity' it becomes difficult to suggest that a common direction frequently given ‑ such as a separate consideration direction ‑ will stretch the comprehension capacity of a jury.[43]
[39] R v Braysich [2006] WASCA 220; (2006) 166 A Crim R 109 [53].
[40] R v Braysich [53].
[41] Herbert v The State of Western Australia [46]; Smith v The Queen [40]; Bowen [69].
[42] Herbert v The State of Western Australia [47].
[43] See eg Russell v The State of Western Australia [131].
I have previously outlined the nature of the State's case on the seven counts (including, for this purpose, the new count 3). The evidence in respect of the State's case may be divided into three classes:
•Evidence as to the events of 24 May 2018 (likely to be generally admissible against Mr Horton).
•Mr Taylor's intended evidence (discussed further below).
•Evidence as to the events of 25, 26 and 28 May 2018 (inadmissible against Mr Horton).
So understood there is a clear distinction between the evidence that is admissible against Mr Horton on counts 1 and 2 and that which is admissible against Mr Blurton on those and the other counts. Apart from the mixed evidence of Mr Taylor ‑ discussed further below ‑ the evidence is quite separate and distinct. There is not a complicated mixture of admissible and inadmissible evidence as between Mr Horton and Mr Blurton and the charges that they respectively face. A jury would not, in my view, face a difficult disentangling of evidence and findings. To the contrary this is a case where the evidence can be readily segregated and distinguished. There is no reason to think that it would be difficult for a trial judge to identify the evidence which is admissible against Mr Horton ‑ distinguishing it from that which is not and is solely admissible against Mr Blurton ‑ and for a jury to keep in mind and apply the limit of the admissible evidence when considering the charges against Mr Horton. That is a necessary consequence of the fact that counts 3 to 6 (including the new count 3) relate to separate incidents that occurred after Mr Horton was remanded in custody.
As the State pointed out in the course of submissions, this is not a case where one co‑accused implicates another co‑accused. Both Mr Horton and Mr Blurton declined to participate in a recorded interview with police. In any case the principle that accused persons who are alleged to have offended jointly should ordinarily be tried together is not usually weakened by the fact that one co‐accused implicates another co‐accused.[44] The only identified concern in this respect is Mr Blurton's conversation with Mr Taylor.
[44] Ruthsalz v The State of Western Australia [210].
On the State's case Mr Blurton and Mr Horton travelled to the residence in Mount Nasura using a Great Wall ute belonging to Mr Taylor. It will be alleged that, after the events of 24 May 2018, there was a conversation between Mr Blurton and Mr Taylor. Mr Taylor asked Mr Blurton where the ute was (having earlier made unanswered telephone calls and text messages). Mr Blurton is alleged to have said words to the effect of: 'Things went bad and the car is in a safe place'. On Mr Taylor's intended evidence reference was also made to Mr Horton having the keys and Mr Blurton not knowing where Mr Horton was. Later, another person ‑ not Mr Blurton ‑ is alleged to have said that Mr Horton had been arrested.
Prima facie that implicates Mr Blurton more than Mr Horton. The high point of the intended evidence so far as it concerns Mr Horton is that he is said to have had the car keys. However, the suggestion that things went bad might be thought to implicate Mr Horton. The reference to Mr Horton being arrested is likely to be relatively uncontroversial insofar as there appears to be no dispute that Mr Horton was arrested on 24 May 2018.
The State accepts that the evidence of the conversation between Mr Blurton and Mr Taylor, and Mr Blurton's conduct at the time of the conversation, is not admissible in the State's case against Mr Horton on grounds 1 and 2. The trial judge will be able to give a direction that this evidence of Mr Taylor is not admissible against Mr Horton.
The prejudicial and inadmissible part of Mr Taylor's intended evidence vis‑à‑vis Mr Horton is a short and confined aspect of Mr Taylor's intended evidence. Even more so it is short and confined when viewed against the whole of the evidence to be considered by the jury in relation to counts 1 and 2. In my opinion that part of Mr Taylor's intended evidence is not so voluminous, intermingled with other evidence and ill‐defined that ‑ on receipt of an appropriate direction by the trial judge ‑ the jury will be unable to identify the parts of the evidence they are required to ignore when considering the State's case against Mr Horton.

It is reasonable to expect that a jury, properly directed by the trial judge, will not take into account any prejudicial evidence against Mr Horton (introduced in the case against Mr Blurton) which is inadmissible against Mr Horton. That is the case for both the mixed evidence of Mr Taylor and the post‑24 May 2018 evidence going to the events the subject of counts 3 to 6 (including new count 3).
A separate consideration direction ‑ as suggested by the State ‑ which expressly and carefully directs the jury as to the use which they may make of the evidence so far as it concerns each of Mr Blurton and Mr Horton will be sufficient to ensure a fair trial. That is all the more so given the segregated nature of the evidence as far as it concerns Mr Horton as against the evidence as a whole. The temporal separation between the evidence relevant to both Mr Horton and Mr Blurton on counts 1 and 2 and the evidence relevant to Mr Blurton alone on the other counts provides a firm line of demarcation which means that, properly directed, the jury should be able to follow and apply a separate consideration direction. This will be assisted by the State's proposal to lead the evidence sequentially. It will not be difficult for the jury to follow and apply a judicial direction that will guard against any prejudice to Mr Horton from a joint trial. The nature of the case is such that a jury can reasonably be expected to evaluate and deal with the evidence appropriately. There is no reason, in the circumstances of the case, to conclude that the prejudicial effect of the inadmissible evidence is likely to be so great that it would not be reasonable to expect a jury to leave it out of account in the jury's deliberations in relation to Mr Horton. When regard is had to the nature of the State's case and the intended evidence there is no reason to doubt that a jury could and would act in accordance with a separate consideration direction.
Nor, in my view, is the position in this case affected by the circumstance that much of the evidence at trial will not involve Mr Horton. As was said by Buss JA in Smith v The Queen in dismissing an appeal against a refusal to order separate trials:
[T]he fact that one appellant will not be actively involved in the trial for significant periods during which evidence will be led which is relevant only to the other, does not constitute a sufficient basis for ordering separate trials, at least on the facts of the present case.[45]
[45] Smith v The Queen [40].
In that regard, as previously mentioned, there is an issue as to whether it is permissible to take into account the costs of a trial. It has, however, been said that even if it is permissible to take into account the costs of a trial where much of the evidence in the State brief is inadmissible against an accused, relevant prejudice does not arise where the estimated length of the trial is only three weeks.[46] In the present case the trial is estimated at two weeks.
[46] Herbert v The State of Western Australia [44].
As expressed by his counsel, Mr Horton's concern did not appear to be costs. It was more that Mr Horton might be dragged down by the weight of evidence of alleged ongoing criminal activities by Mr Blurton. The concern was one of guilt by association. That too can be overcome by the suggested separate consideration direction. If, as the trial develops, the trial judge perceives that something more is required, then he or she may provide a further direction as is appropriate. The trial judge may reinforce that the jury's task is to examine the State's case against Mr Horton, in the context of all of the evidence that was admissible against him, separately from Mr Blurton, and solely by reference to the evidence that was admissible against Mr Horton. The trial judge may make plain that, in assessing the case against Mr Horton, no account whatsoever is to be had to the events post‑24 May 2018 in relation to Mr Blurton.
In short, the trial judge will be in a position to provide any necessary or appropriate direction to negate the possibility of guilt by association. He or she will be able to do so informed by what has transpired in the trial and sensitive to what, if any, further direction is necessary or appropriate to ensure a fair trial.
For the reasons already given I am satisfied that an average jury would be capable of recognising the distinctions between the evidence against Mr Horton and the evidence against Mr Blurton. I am also satisfied that an average jury would be capable, when considering the case against Mr Horton, of putting aside the evidence and findings it had made in relation to Mr Blurton. It is reasonable to expect that the jury, properly directed, would leave the inadmissible evidence out of account against Mr Horton when considering the case against him. There is nothing particularly unusual in the case before me such as might suggest any real possibility that jurors would depart from their oaths and find Mr Horton guilty on inadmissible evidence or guilty by association.
In the circumstances of the case I am satisfied that the likelihood of Mr Horton being prejudiced in a trial of counts 1 and 2 because the indictment also charges Mr Blurton on those and other counts can be guarded against by a direction to the jury. The prejudicial effect of the inadmissible evidence ‑ and any prejudice by association through being tried with Mr Blurton ‑ is capable of being neutralised by appropriate instruction. Separate trials are not required to ensure that Mr Horton receives a fair trial.

Conclusion

The discretion under s 133(4) of the Criminal Procedure Act 2004 (WA) is enlivened. Nevertheless, I am satisfied that the likelihood of Mr Horton being prejudiced in his trial because of being tried jointly with Mr Blurton (in circumstances where Mr Blurton is also being tried on the additional charges) can be guarded against by judicial direction.
A separate trial order is not required to ensure that Mr Horton receives a fair trial. Accordingly, Mr Horton's application for a separate trial is refused. It is the case, however, that a trial judge has power, either on application or on his or her initiative, to revisit the question of a separate trial.[47] If, which is not apparent at this stage, some unfairness to Mr Horton emerges which cannot be guarded against or overcome by direction, the matter can be revisited at that time.[48]
[47] Criminal Procedure Act 2004 (WA), s 133(1).
[48] Herbert v The State of Western Australia [49]; Zammit [66] (referred to with approval in Smith v The Queen [37]).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZC
Associate to the Honourable Justice Vaughan
9 SEPTEMBER 2019