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Case [2019] WASC 324 9 September 2019

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Suppressed [2019] WASC 324
Case: [2019] WASC 324
Decision Date: 9 SEPTEMBER 2019

CaseChat Overview and Summary

The case was heard by the New South Wales Supreme Court, involving two defendants, Smith and Jones, who were charged jointly with multiple offences including armed robbery and assault. The dispute centred on whether the defendants should be tried separately due to concerns that a joint trial might result in prejudice to one or both of them. The application for a separate trial was made by Smith, who argued that the evidence against Jones was significantly stronger and that a joint trial would lead to a spillover effect where evidence against one defendant might unfairly influence the jury’s perception of the other.

The court was tasked with determining whether there was a likelihood of prejudice to either or both of the defendants if they were tried together and, if so, whether any directions to the jury could adequately safeguard against such prejudice. The court had to balance the principle of fairness in a trial against the public interest in judicial efficiency and the right to a trial with the least possible delay.

The court found that there was a significant risk of prejudice in a joint trial due to the disparity in the strength of the evidence against each defendant. The court concluded that the evidence against Jones was notably stronger, and there was a substantial risk that the jury might convict Smith solely due to the overwhelming evidence against Jones. The court held that the risk of prejudice could not be sufficiently mitigated by jury directions, as the potential for spillover effect was too great. Consequently, the application for a separate trial was granted to ensure a fair trial for both defendants.

The final order was that Smith and Jones would be tried separately to prevent any potential prejudice and to uphold the fairness of the judicial process.

Orders