The State of Western Australia v Bowen
[2006] WASCA 133
•30 JUNE 2006
THE STATE OF WESTERN AUSTRALIA -v- BOWEN & ANOR [2006] WASCA 133
| (2006) 32 WAR 81 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 133 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:193/2005 | 1 MAY 2006 | |
| Coram: | ROBERTS-SMITH JA PULLIN JA BUSS JA | 30/06/06 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA MARY BOWEN STUART RAYMOND MARSHALL |
Catchwords: | Criminal law Joint trial Application for separate trials Proper construction of s 133(4) and (5) of the Criminal Procedure Act 2004 (WA) Considerations to be taken into account in deciding whether to order separate trials Out of court statements made by one accused prejudicial to and implicating second accused Whether direction to jury would guard against likelihood of prejudice |
Legislation: | Criminal Code (WA), s 586, s 624 Criminal Procedure Act 2004 (WA), s 85, s 133, Sch 1 cl 7(3) and cl 9(1) Interpretation Act 1984 (WA), s 19 |
Case References: | Ali v The Queen (2005) 79 ALJR 662 Attorney General's Reference (No 1 of 1977) [1979] WAR 45 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 De Jesus v The Queen (1986) 61 ALJR 1 Demirok v The Queen (1977) 137 CLR 20 Dinsdale v The Queen (2000) 202 CLR 321 Donaldson v Western Australia (2005) 31 WAR 122 Drummond (No 2) (1990) 46 A Crim R 408 Farrell & Cotton (1990) 48 A Crim R 311 Holden (1990) 52 A Crim R 32 House v The King (1936) 55 CLR 499 Leaman (1987) 28 A Crim R 104 Lowndes v The Queen (1999) 195 CLR 665 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 R v Andrews (No 2) [2005] SASC 301 R v Annakin (1988) 17 NSWLR 202 R v Avis & Ors [2000] WASC 281 R v Callaghan [1966] VR 17 R v Collie (1991) 56 SASR 302 R v Connell (No 1) (1992) 8 WAR 518 R v Darby (1982) 148 CLR 668 R v Deemal-Hall [2005] QCA 206 R v Demirok [1976] VR 244 R v Guldur (1986) 8 NSWLR 12 R v Iaria and Panozzo [2004] VSC 110 R v Manton [1980] 2 NSWLR 526 R v Middis, unreported; SCt of NSW (Hunt J); 27 March 1991 R v Pinkstone [2001] WASC 137 R v Wood [2000] WASC 64 Re Attorney-General's Reference No 1 of 1977 [1979] WAR 45 Robinson v The State of Western Australia [2006] WASCA 90 Salehi v The Queen [1999] WASCA 279 The State of Western Australia v Tolliday & Anor [2004] WASC 231 Torney (1983) 8 A Crim R 437 Webb v The Queen (1994) 181 CLR 41 Yuill (1993) 69 A Crim R 450 Matthews v The Queen [1973] WAR 110 Middleton v The Queen (1998) 19 WAR 179 Prashar v The Queen (1988) 1 WAR 190 Symss v The Queen [2003] NSWCCA 77 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- BOWEN & ANOR [2006] WASCA 133 CORAM : ROBERTS-SMITH JA
- PULLIN JA
BUSS JA
- Appellant
AND
MARY BOWEN
First Respondent
STUART RAYMOND MARSHALL
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MCCANN DCJ
File No : IND 560 of 2004
(Page 2)
Catchwords:
Criminal law - Joint trial - Application for separate trials - Proper construction of s 133(4) and (5) of the Criminal Procedure Act 2004 (WA) Considerations to be taken into account in deciding whether to order separate trials Out of court statements made by one accused prejudicial to and implicating second accused - Whether direction to jury would guard against likelihood of prejudice
Legislation:
Criminal Code (WA), s 586, s 624
Criminal Procedure Act 2004 (WA), s 85, s 133, Sch 1 cl 7(3) and cl 9(1)
Interpretation Act 1984 (WA), s 19
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Ms L Petrusa
First Respondent : Mr J J Scudds
Second Respondent : No appearance
Solicitors:
Appellant : State Director of Public Prosecutions
First Respondent : Porter Scudds
Second Respondent : No appearance
Case(s) referred to in judgment(s):
Ali v The Queen (2005) 79 ALJR 662
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
De Jesus v The Queen (1986) 61 ALJR 1
Demirok v The Queen (1977) 137 CLR 20
Dinsdale v The Queen (2000) 202 CLR 321
(Page 3)
Donaldson v Western Australia (2005) 31 WAR 122
Drummond (No 2) (1990) 46 A Crim R 408
Farrell & Cotton (1990) 48 A Crim R 311
Holden (1990) 52 A Crim R 32
House v The King (1936) 55 CLR 499
Leaman (1987) 28 A Crim R 104
Lowndes v The Queen (1999) 195 CLR 665
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
R v Andrews (No 2) [2005] SASC 301
R v Annakin (1988) 17 NSWLR 202
R v Avis & Ors [2000] WASC 281
R v Callaghan [1966] VR 17
R v Collie (1991) 56 SASR 302
R v Connell (No 1) (1992) 8 WAR 518
R v Darby (1982) 148 CLR 668
R v Deemal-Hall [2005] QCA 206
R v Demirok [1976] VR 244
R v Guldur (1986) 8 NSWLR 12
R v Iaria and Panozzo [2004] VSC 110
R v Manton [1980] 2 NSWLR 526
R v Middis, unreported; SCt of NSW (Hunt J); 27 March 1991
R v Pinkstone [2001] WASC 137
R v Wood [2000] WASC 64
Re Attorney-General's Reference No 1 of 1977 [1979] WAR 45
Robinson v The State of Western Australia [2006] WASCA 90
Salehi v The Queen [1999] WASCA 279
The State of Western Australia v Tolliday & Anor [2004] WASC 231
Torney (1983) 8 A Crim R 437
Webb v The Queen (1994) 181 CLR 41
Yuill (1993) 69 A Crim R 450
Case(s) also cited:
Matthews v The Queen [1973] WAR 110
Middleton v The Queen (1998) 19 WAR 179
Prashar v The Queen (1988) 1 WAR 190
Symss v The Queen [2003] NSWCCA 77
(Page 4)
1 ROBERTS-SMITH JA: I have read in draft the reasons of Pullin and Buss JJA in this matter. I agree with Pullin JA subject to the following comments.
2 Section 624 of the Criminal Code vested in the court a discretion which was at large. It was unconfined by any statutory criteria. It was, of course, a judicial discretion which had to be exercised judicially, having regard to relevant considerations and disregarding irrelevant considerations. What was relevant on an application under that section fell to be determined by authority, on a case by case basis. Some of the relevant authorities are discussed by Buss JA.
3 There is, however, an obvious difference with s 133(4) of the Criminal Procedure Act 2004 (WA). The discretion to make an order under s 133(4)(a) or (b) is enlivened only if the court is satisfied that the accused is likely to be prejudiced in the trial by reason of the fact that the indictment charges one or more other accused.
4 The words "to so decide" in s 133(5)(a), (b) and (c) on their plain grammatical construction relate back to the words "in deciding whether to make an order under subsection … (4)". They are disjunctive and each has independent operation (Donaldson v Western Australia (2005) 31 WAR 122, [96] - [97]).
5 Although the word "may" ("the court may order") imports a discretion, it is impossible to see how any discretion to make or not to make an order under either s 133(4)(a) or (b), could remain were the court to conclude under s 133(5)(a) that there was a likelihood of the accused being prejudiced in the trial, which likelihood could not be guarded against by a direction to the jury.
6 It is important to appreciate that s 133(4) presupposes an indictment charging more than one accused. In that circumstance, where one of those jointly charged is concerned that they may be prejudiced by a joint trial, that accused may apply to the court for an order under s 133(4). It is only if the court is satisfied the accused is likely to be prejudiced (notwithstanding any direction to the jury) that the court can make such an order. If the court is not so satisfied, the application must be dismissed and the (joint) indictment will stand.
7 I agree with Pullin JA that there is no room - and indeed no purpose - in the exercise of this statutory discretion for any consideration of administrative matters, such as court time and public expense, or even matters such as the possibility of inconsistent verdicts, forensic
(Page 5)
- expedition, the interest of witnesses and the like. These are matters which bear upon the exercise of the prosecutorial discretion whether or not to charge multiple accused jointly. A decision having been made to present an indictment charging a number of accused jointly, the court will only order severance (in one of the ways contemplated in s 133(4)(a) or (b)) if satisfied an accused so charged is likely to suffer such prejudice from a joint trial, that it cannot be guarded against by a judicial direction.
8 Looked at in that way, it seems to me the section poses a stringent test to be met before such an order will be made, but where that test is met there can be no further factors to be taken into account and such an order must be made.
9 PULLIN JA: The respondents to this appeal were charged on indictment that:
"On 24 September 2003 at Northam MARY BOWEN and STUART RAYMOND MARSHALL had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another."
10 The first respondent applied for a separate trial and McCann DCJ granted the application and made an order for separate trials.
11 This appeal is by the State of Western Australia against that order.
The facts leading to arrest and relating to subsequent interviews
12 On 24 September 2003 at 12.30 am Mr Marshall was driving a Ford utility which was owned by Ms Bowen. A third person, a Ms McMeekan, was asleep in the rear of the utility. The police, in a police car, activated their emergency lights, requiring the utility to pull over and stop. Mr Marshall and Ms Bowen then changed seats so that by the time the police came alongside the vehicle Ms Bowen was sitting in the driver's seat.
13 According to the police, Mr Marshall was "acting strange", tried to dispose of a syringe and resisted arrest. The vehicle was searched and drugs were found, along with clip-seal bags and syringes. Ms Bowen denied knowledge of the items. Mr Marshall was interviewed on Wednesday 23 September 2003 and made no admissions about the drugs or other items. Later in the day, during the process of having his fingerprints and DNA taken, Mr Marshall alleged that the drugs were passed to him by "Mary". The reference to "Mary" was a reference to Ms Bowen. Subsequently, on 25 September 2003, Mr Marshall was
(Page 6)
- interviewed again. This interview was recorded on video, and in it Mr Marshall claimed that the drugs belonged to Ms Bowen, that she attempted to pass them to him and that Ms Bowen was a drug dealer.
14 The oral statement to the police at the time of fingerprinting and the statements made about Ms Bowen in the second video-recorded interview would be inadmissible as hearsay in the trial of Ms Bowen: see Re Attorney-General's Reference No 1 of 1977 [1979] WAR 45.
15 The prosecutor intended that there should be a joint trial and intended that the full videos and the oral statement should be led in evidence at the trial as evidence against Mr Marshall. The prosecutor agreed that such evidence was inadmissible against Ms Bowen. Defence counsel for Mr Marshall wanted the whole of his police videos and the oral statement led in evidence. I do not comment on whether or not all this material would be admitted as evidence in a joint trial. I will however, assume for the purposes of this appeal that it will be.
The statutory provisions governing the application
16 Section 85 of the Criminal Procedure Act 2004 (WA) ("CPA") states that Sch 1 has effect in relation to indictments and charges in them. Clause 9(2) in Sch 1 of the CPA provides that if one charge is against two or more accused, they must be tried together unless a court otherwise orders under the CPA.
17 Section 133 of the CPA reads:
"133 Separate trials, court may order
(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.
…
(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;
(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.
(7) If a superior court makes or refuses to make an order under subsection (3) or (4), the court must adjourn the trial to enable an appeal against the order or refusal to be commenced and concluded under the Criminal Appeals Act 2004 section 26."
(Page 8)
18 The right of the State to join more than one accused in an indictment was formerly permitted under s 586 of the Criminal Code. The same is now permitted by Sch 1 of the CPA. The Court's power to order separate trials of persons jointly charged on an indictment was previously conferred by s 624 of the Criminal Code.
The Judge's reasons for decision
19 His Honour held that, for the purpose of the application, at the time the police arrested the respondents, Mr Marshall knew that amphetamines, or at least an illegal drug of a similar type, were in the clip-seal bags found in the vehicle. His Honour also noted that Mr Marshall said in the second record of interview that Ms Bowen tried to give them to him. His Honour said that this evidence was exculpatory insofar as Mr Marshall said this occurred as the police were moving in and that he did not take possession of the drugs and refused to take possession, but his Honour said that it was partly inculpatory in that it showed that he knew and admitted that amphetamines were in the car and that he had a fair idea that Ms Bowen might be carrying illegal drugs.
20 His Honour also referred to the fact that the State had evidence that Mr Marshall knew that one of the passengers in the utility, namely Ms McMeekan, had travelled to Perth for the purpose of acquiring drugs and, in Mr Marshall's first video record of interview, he said that he knew that Ms McMeekan was going to Perth to see his co-accused, Ms Bowen. In the second record of interview, Mr Marshall said that in Coolgardie he saw Ms McMeekan counting a sum of $4000 and that Ms McMeekan was going to give the $4000 to Ms Bowen and that he saw Ms McMeekan give Ms Bowen the money.
21 His Honour correctly directed himself by referring to s 133. He considered whether he was satisfied that Ms Bowen was likely to be prejudiced and also directed himself to consider subs (5). His Honour concluded that there was potential for prejudice. His Honour then went on to consider the question about whether the prejudice could be ameliorated if a joint trial proceeded by the giving of a direction by the trial Judge. His Honour said that he took into account that a joint trial is common in cases involving the so-called "cut throat defence" and that the prima facie rule is that joint crimes require joint trials in order to avoid the risk of inconsistent verdicts.
22 His Honour then said:
(Page 9)
- "The complicating factor in this case is the State intend[s] to lead the two video records of interview and probably also the evidence of a remark made by Mr Marshall whilst he was being fingerprinted to the effect that Ms Bowen had passed the drugs to him. This is different from a case where a co-accused testifies in court and is able to be cross-examined by the co-accused because in this case it may very well transpire at trial that Mr Marshall elects not to give evidence and rests his case on the video record of interview which contains exculpatory as well as inculpatory statements.
In addressing the question as to the direction to be given to the jury, it is necessary to bear in mind, in my view, that there are actually two directions required, one in respect of the case against Mr Marshall and one in respect of the case against Ms Bowen. In terms of the case against Mr Marshall, the jury will be told that there is evidence both for and against him whereas in the case against Ms Bowen the jury will be told that it is not evidence in her trial at all.
It seems to me that if the jury can use the video record of interview to exculpate Mr Marshall it would be because there are statements made in it which tend to establish facts upon which the jury could act which would incline to inculpate Ms Bowen, that is to say that she had passed the drugs to him and that they were in her possession at all material times and he never had any opportunity to exercise dominion over them because they were thrown on the floor of the car during the panic that ensued as the police moved in to make the arrests.
The problem as I see it is that the evidence in the video record of interview goes beyond evidence of Ms Bowen merely passing the drugs to Mr Marshall in the car. It goes to her history of drug use, her propensity to use drugs and indeed to her having formerly been a drug dealer.
In my view there is a real chance of the jury misusing that evidence unless there is a clear-cut direction given to them not to do so. The question I have to decide is whether or not it is likely, in other words, there is a substantial or real chance as opposed to a remote chance of the jury being unable to act on the judicial direction.
(Page 10)
- Allied to this is the point that the jury are going to be asked to make findings in Mr Marshall's trial, in other words determine what the facts were which are relevant to his defence, and one of those facts might be that Ms Bowen was a drug dealer and that she and Ms McMeekan were between themselves and to the exclusion of Mr Marshall involved in a drug run from Perth to Kalgoorlie, and yet then be asked to ignore those facts in Ms Bowen's trial.
It seems to me that the distinction the jury are going to be asked to make is potentially a somewhat artificial one because if they are facts in Mr Marshall's trial it will be difficult for the jury to be asked to proceed on the basis that they are not facts in Ms Bowen's trial. The judge trying the case will no doubt very carefully direct the jury about this matter, but it seems to me that there is a real risk here of a jury being unable to observe the necessary intellectual rigour, notwithstanding the best of intentions and the best of directions from the trial judge.
…
It's important to bear in mind the prima facie rule that juries do act on directions that they are given by a trial judge and I am firmly of the view that juries do diligently attempt to do that, but the problem here is that an important finding which the State are going to ask the jury to make in the case against Mr Marshall - or even if they don't ask the jury to make it the jury are the masters of their own destiny in terms of the facts, they may make it themselves - is that Ms Bowen is a drug dealer, but as I have pointed out, there is also a real chance of the jury misusing evidence about the drugs being passed to Mr Marshall in the car.
I would be less concerned if it weren't for the evidence about her being a drug dealer, and I think a jury could probably see their way clear to ignore the evidence of the bare passing of the drugs to Mr Marshall.
I think a jury would adopt the commonsense view and understand that he had an axe to grind in that regard, so it seems to me that so long as the State are intending to put in the video record of interview in its entirety, leaving out those parts which are obviously related to other offences which Mr Marshall was
(Page 11)
- being interviewed about, then there's a real chance that when the jury come to consider the case against Ms Bowen, they will be prejudiced because they may act on a finding that they are led to make in Mr Marshall's case which they can't act on in her case, but feel that commonsense leads to no other conclusion. It seems to me that there should be split trials in relation to this matter."
The nature of the appeal and the grounds of appeal
23 This appeal is an appeal against the exercise of a discretionary judgment of the primary Judge. Numerous authorities make it clear that the exercise of discretion about whether or not to order separate trials should not be lightly interfered with. See for example R v Manton [1980] 2 NSWLR 526; R v Callaghan [1966] VR 17. However, like all discretionary judgments, an appellate court may interfere if any of the limited grounds for review are made out. The well established principles governing an appeal against an order made in the exercise of a discretion are as follows. First, an appellate court may not substitute its own opinion for that of the primary Judge merely because the appellate court would have exercised its discretion in a manner different from the primary Judge. If an appeal is to succeed then it must be shown that the Judge acted on wrong principle by failing to understand or applying the relevant law, mistook the facts, failed to take into account relevant considerations, took into account considerations which were irrelevant, or, if no error is shown in any of those respects, but it is a case where it does not appear how the primary Judge reached the result embodied in the order but the order on the facts is plainly unjust or unreasonable, then the appellate court may infer that there has been a failure to properly exercise the discretion (Lowndes v The Queen (1999) 195 CLR 665 at [15]; House v The King (1936) 55 CLR 499).
24 The grounds of appeal read:
"1. The learned judge erred in law in that his Honour failed to determine the first respondent's application for separate trials on the basis required by s.133(4) of the Criminal Procedure Act 2004, that is by concluding 'that there is a real chance that when the jury come to consider the case against Ms Bowen they will be prejudiced because they may act on a finding that they are led to make in Mr Marshall's case, which they can't act on in her case, but feel that common sense leads to no other conclusion'.
(Page 12)
- 2. The learned judge erred in law by failing to adequate consider the provisions of the s.133(5) of the Criminal Procedure Act 2004. Had he done so he would have concluded that any likelihood of the first respondent being prejudiced could be guarded against by a direction to the jury.
3. The learned judge erred in law by failing to consider the provisions of s 133(5)(c)(ii) and concluding that a jury properly directed could not act on the judicial direction that an out of court statement and a video record of interview were only evidence against the second respondent and not admissible against the first respondent.
4. Further, the learned judge erred in the exercise of his discretion under s.133(4)(a) of the Criminal Procedure Act 2004 by ordering separate trials."
The case law relevant to or relating to s 133 of the CPA or its predecessor
25 In Webb v The Queen (1994) 181 CLR 41 at 88, Toohey J was dealing with a submission that the trial Judge should have ordered separate trials in a murder case. One of two co-accused had, in three records of interview, implicated the other accused. It was argued that although the trial Judge warned the jury that this evidence was not admissible against the latter accused, such a direction could not cure overwhelming prejudice to that accused. Toohey J said at 88 - 89:
"King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other' ((1992) 59 SASR 563 at 585). What King C J referred to as 'strong reasons of principle and policy' were discussed by his Honour in R v Collie (1991) 56 SASR 302 at 307-311. I respectfully agree with that discussion which emphasises 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 (R v Demirok [1976] VR 244 at 254). There are of course dangers
(Page 13)
- 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 (R v Harbach (1973) 6 SASR 427 at 433).
In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused.
In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore was not subject to cross-examination, thought the jury heard his statements to the police implicating Hay. But, as King CJ observed … 'That is a common feature of a joint trial and does not of itself render separate trials necessary'. Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred."
26 In the case of R v Collie (1991) 56 SASR 302, King CJ set out the relevant matters of policy which, in my opinion, justify the enactment of a provision like cl 9 of Sch 1 of the CPA and s 133. His Honour mentioned matters of public interest such as the wasted cost and time if more than one trial were conducted and the desirability of avoiding inconsistent verdicts and reaching finality as expeditiously as possible. The convenience of witnesses is another factor: R v Demirok [1976] VR 244 at 254. However, while these considerations explain and justify the enactment of provisions like cl 7(3) and cl 9(1) of Sch 1 of the CPA (which allow indictments which charge two or more persons and which direct that such persons must be tried together unless a court otherwise orders), they are not factors relevant to the exercise of the discretion under s 133. Comments to the contrary in The State of Western Australia v Tolliday & Anor [2004] WASC 231 at [22] and R v Avis & Ors [2000] WASC 281 (concerning s 624 of the Criminal Code (WA)) must not, in my opinion, be treated as applicable to s 133. Section 133 does not require these policy considerations to be taken into account in the exercise of the discretionary power conferred by the section.
(Page 14)
27 Toohey J in Webb (ibid) said that the critical question is whether, by reason of a joint trial, there has been a substantial miscarriage of justice or improper prejudice created against an accused. See also King CJ in R v Collie (supra, at 310). The question has been formulated in different words on other occasions ("risk of a miscarriage of justice" (Drummond (No 2) (1990) 46 A Crim R 408); "prejudice so as to prevent a fair trial" (R v Annakin (1988) 17 NSWLR 202 at 139); "impermissible prejudice" (De Jesus v The Queen (1986) 61 ALJR 1)), but they are all to the same effect. The same question arises for consideration under s 133.
28 Roberts-Smith JA in Donaldson v Western Australia (2005) 31 WAR 122 at [94] to [99] set out the steps in the process of applying s 133. His Honour was there considering an indictment against one accused containing several charges. His Honour said that it was self-evident that a court cannot make a severance order under s 133(3) unless satisfied that there would be a likelihood of prejudice to the accused, but that the existence of such satisfaction does not mean an order for severance must be made. In deciding whether or not to make such an order, it is open to the court to conclude that such likelihood can be guarded against by direction to the jury.
29 His Honour went on to say:
"The central test for the making of a decision under s 133(1) is whether the court is satisfied the accused is likely to be prejudiced because the indictment contains two or more charges. If there is not such a likelihood, the order cannot be made. If there is, the court may nonetheless refuse to order severance if satisfied that the likelihood can be guarded against by a direction to the jury."
- The court may "so decide" in terms of s 133(5)(a) "even if the evidence against one of the accused is not admissible against the other" (s 133(5)(c)(ii)).
30 In Webb (supra), Toohey J referred to the prima facie position that there should be a joint trial. That is so under the CPA because of cl 9 of Sch 1. The prima facie position is not easy to displace: Holden (1990) 52 A Crim R 32 at 44; R v Avis & Ors (supra) at [33]. This is because of the strength of the policy considerations which have justified the requirement that there should be a joint trial unless otherwise ordered.
31 The provision in s 133(5), which provides that it is open to the Court to decide that any likelihood of the accused being prejudiced can be
(Page 15)
- guarded against by a direction to the jury, is soundly based in principle because, as Barwick CJ observed in Demirok v The Queen (1977) 137 CLR 20 at 22, in the administration of the criminal law, it must be accepted until the contrary is demonstrated that the jury accept and faithfully apply the Judge's directions. This observation was approved by the Full Court of this State in Salehi v The Queen [1999] WASCA 279 and by the New South Wales Court of Criminal Appeal in Yuill (1993) 69 A Crim R 450.
32 However, it is necessary to keep in mind that some evidence may be so prejudicial that even with a full direction to ignore it, the prejudicial effect will remain. This was explained in Leaman (1987) 28 A Crim R 104 at 108 - 109 where Neasey J said (Underwood J concurring):
"A basic question faced by a trial judge considering whether to order a separate trial, or an appellate court considering whether a miscarriage of justice has occurred because he did not, always is whether the prejudicial effect of the inadmissible evidence is (or was) capable of being adequately neutralised by appropriate instructions to the jury. That question will usually involve two further issues, namely:
(1) Will an average jury be reasonably capable, as an intellectual exercise, of performing the task thus given them? And
(2) 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 a particular accused even though it is inadmissible against him?"
- See also R v Connell (No 1) (1992) 8 WAR 518 at 528.
Merits of the appeal
33 As I have said, this is a review of a discretionary decision of the primary Judge. His Honour correctly identified and directed himself by reference to s 133(1) and (5) of the CPA. His Honour quickly concluded that the inadmissible statements by Mr Marshall, seeking to implicate Ms Bowen, were likely to be prejudicial to Ms Bowen. The State does not challenge that conclusion.
(Page 16)
34 His Honour then dealt with the directions which would have to be given to the jury, but said that:
"There is a real risk here of a jury being unable to observe the necessary intellectual rigour, notwithstanding the best of intentions and the best of directions from the trial judge."
35 His Honour's concern was driven mainly by evidence about Ms Bowen being a drug dealer. He said that he would be "less concerned" if it were not for that evidence and he considered that a jury "could probably see their way clear to ignore the evidence of the bare passing of the drugs to Mr Marshall."
36 Counsel for the respondent before this Court emphasised this aspect of the case and submitted that the inadmissible material about Ms Bowen being a drug dealer is so prejudicial that no direction will overcome or neutralise its effect.
37 His Honour reached his conclusion at the end of his reasons for decision where he said:
"… there's a real chance that when the jury come to consider the case against Ms Bowen, they will be prejudiced because they may act on a finding that they are led to make in Mr Marshall's case which they can't act on in her case, but feel that commonsense leads to no other conclusion."
38 The language his Honour has employed here is not found in s 133(5). The subsection requires consideration to be given as to whether any likelihood of the accused being prejudiced "can be guarded against by a direction to the jury." To formulate the test in terms as to whether there is a "real chance that when the jury come to consider the case against Ms Bowen they will be prejudiced" is not what the section requires. I am conscious that I should not be overly critical of a decision delivered orally after only a short time for consideration and after hearing further submissions on the day the decision was given. In Dinsdale v The Queen (2000) 202 CLR 321 at [65], Kirby J observed that reasons of busy Courts of Criminal Appeal should not be scrutinised with a fine-tooth comb to detect error. This applies even more so in a busy trial court. As Kirby J said at [65] "mere verbal infelicity in reasons" should generally be ignored. However, the language used by his Honour in this case is not, in my opinion, "mere verbal infelicity".
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39 If a provision in a statute is reformulated in the Judge's own words, it makes it more difficult, if the decision appears to be wrong, to say how the error in reasoning has occurred. That is so in this case. In my respectful opinion, the conclusion reached appears to be manifestly unreasonable. In Dinsdale at [58] Kirby J referred to the "brake" imposed upon undue appellate disturbance of primary decisions and the need to identify an error that justifies and authorises appellate intervention. Usually, in the case of appellate intervention in relation to discretionary decisions, the error has to be shown in terms of incorrect principle giving weight to extraneous or irrelevant matter or failing to give weight to some material consideration or a mistake as to the facts. He went on to refer to House (supra) and said (at [59]):
"As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly."
40 In my opinion, the decision is manifestly unreasonable. The prima facie requirement that there should be a joint trial is well justified here. The same prosecution witnesses would have to give the same evidence if there were separate trials. The charges arise out of the same facts which occurred over a short time span. The same expert evidence applies to both charges.
41 In my opinion, the jury will not have any more difficulty following the direction to disregard Mr Marshall's statements about Ms Bowen being a drug dealer than they will have in following the direction to disregard the statement that she had the drug in her possession and attempted to pass it to Mr Marshall. The clear direction will be that none of these out of court statements made by Mr Marshall provide any evidence against Ms Bowen in the jury's consideration of the case against her. They will be told that these statements must be ignored when considering the case against Ms Bowen. The jury would well understand that statements by a co-accused heaping blame on the other co-accused must be regarded with care, even if they were admissible. When directed that the out of court statements by Mr Marshall are not evidence against Ms Bowen, I see no reason why the jury would not be capable of performing the intellectual task of complying with such a direction.
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42 I would therefore allow the State's appeal. I would quash the order for separate trials.
43 BUSS JA: The material facts and the grounds of appeal are set out in the reasons for judgment of Pullin JA.
44 I agree with Pullin JA that the appeal should be allowed and that the order of the learned primary Judge should be quashed. I disagree, however, with his Honour's construction of s 133(4) and (5) of the Criminal Procedure Act 2004 (WA); in particular, the considerations which may be taken into account by a Court in deciding whether to order separate trials where two or more accused are charged with committing an offence jointly. My reasons in relation to that issue and the merits of the appeal are set out below.
Section 133 of the Criminal Procedure Act
45 Section 133(3) of the Criminal Procedure Act provides, relevantly, that if a Court is satisfied that an accused is likely to be prejudiced in a trial of a prosecution notice or indictment because it contains two or more charges, the Court may order that the accused be tried separately on one or more of the charges.
46 Section 133(4) provides:
"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."
47 By s 133(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;
- (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."
48 Section 133(6) is not relevant to this appeal: it is concerned with an indictment that contains two or more charges of a sexual nature.
Section 624 of the Criminal Code (WA) and relevant authorities
49 The provisions of s 133(4) and (5) of the Criminal Procedure Act, in effect, superseded s 624 of the Criminal Code. Section 624 conferred on the Court a discretionary power to order separate trials for alleged joint offenders. It did not specify the considerations to be taken into account by the Court in exercising its discretion. Section 624 provided:
"When 2 or more persons are charged in the same indictment, whether with the same offence or with different offences, the court may at any time during the trial, on the application of any of the accused persons, direct that the trial of the accused persons, or any of them, shall be had separately from the trial of the other or others of them, and for that purpose may, if a jury has been sworn, discharge the jury from giving a verdict as to any of the accused persons."
50 Prior to the enactment of s 133 of the Criminal Procedure Act, the principles governing the determination of an application for separate trials, where two or more accused were charged with committing an offence jointly, were reasonably well-established. The overriding question was whether separate trials were required to ensure that both or all of the accused received a fair trial. The determination of that question involved a consideration of the interests of the accused and also the public interest.
51 In R v Collie (1991) 56 SASR 302, King CJ said, at 308 - 309:
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- "The reasons why there should ordinarily be a joint trial of accused persons charged with committing the crime jointly are expressed in the judgment of the Full Court of the Supreme Court (Vic) in R v Demirok [1976] VR 244 at 254:
'The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated 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.'
In R v Glover (1987) 46 SASR 310 at 312 I 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'."
52 Those observations of King CJ were referred to with approval in Webb v The Queen (1994) 181 CLR 41. Toohey J (with whom Mason CJ and McHugh J agreed in relation to that issue) said, at 88 - 89:
"King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other' ((1992) 59 SASR at 585). What King CJ referred to as 'strong reasons of principle and policy' were discussed by his Honour in R v. Collie ((1991) 56 SASR 302 at 307-311). I respectfully agree with that discussion which emphasises 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 (R v. Demirok [1976] VR 244 at 254). 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 (R v. Harbach (1973) 6 SASR 427 at 433)."
53 More recently, the issue of separate trials, where two or more accused are charged with committing a crime jointly, was considered by Callinan and Heydon JJ in Ali v The Queen (2005) 79 ALJR 662. Their Honours said, at 670 [58]:
"Any application for a separate trial would have been doomed to failure. Section 597B of the Criminal Code (Qld) confers a discretion on the trial judge, at any time during the trial of two
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- or more persons, as here, charged in the same indictment, that the persons charged be tried separately. The events leading up to the murder and dismemberment of the infant, and the guilt or innocence of the appellant and the co-accused, were closely interconnected. Their relationship, their similar motives, their almost equal opportunity to commit the crimes, and their capacity, either separately or jointly to commit them, all argued very strongly in favour of a joint trial. There were no special or other features of the case requiring that they be tried separately. That one might seek to incriminate the other, as each accused here did, could provide no justification for a direction that the appellant and his co-accused be tried separately (R v Palmer [1969] 2 NSWR 13). A joint trial of the appellant and the co-accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged."
54 In Re Attorney-General's Reference No 1 of 1977 [1979] WAR 45, Burt CJ (with whom Jones and Smith JJ agreed) held that a trial Judge does not have a discretion to exclude evidence admissible against an accused in respect of whom it is tendered on the ground that it is inadmissible against and prejudicial to other accused persons who are properly being tried together. His Honour said, at 47:
"[Where two or more accused persons are tried together] … it is … commonplace that one or more of the accused persons has made an out of court statement which implicates the maker of it in the commission of the offence charged as against him and which, questions of admissibility aside, implicate each of the other persons charged in the commission of the offence charged as against him. But such a statement is, of course, not evidence admissible in the trial of any of the others and the trial judge will direct the jury accordingly and having done so that, generally speaking, will be enough to ensure a fair trial. As it is put in the advice of the Privy Council in Youth v R [1945] WN 27: 'It was true, no doubt, that in all joint trials the mind of the jury might be influenced by the reception of evidence which was only admissible against one of the accused, but the practice in this country has always been on a joint trial to admit such evidence leaving it to the presiding judge to warn the jury that the evidence must not be used to strengthen the case against, or lead to the conviction of, a prisoner against whom it was not
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- admissible' (see also R v Beavan (1952) 69 WN (NSW) 140, particularly at p 143).
I say that, generally speaking, such a direction to the jury will be enough to ensure a fair trial because there might well be a case in which, as it appears at the beginning it is proper that the accused persons should be tried together but which as it develops it can be seen that the out of court statements made by one of them are so prejudicial to the position of the other that even with such a direction given in the strongest terms the prejudice cannot be assumed to have been removed. In such a case it may be right to direct that the trial of one or more of the accused be had separately and to discharge the jury from giving a verdict as to one or more of them: s 624 of the Criminal Code. …"
- Burt CJ summarised the position, at 48, as follows:
"So the position, as I apprehend it, is that it is generally enough when, upon the trial of persons together, evidence being an out of court statement which is admissible as against the accused person who made it but not against the others who are on the indictment is led that the jury be directed that the statement is only admissible in the trial of the person who made it and is not to be considered in reaching their decision as against the other persons. In some cases that may not be enough. In such cases the only course open is to order separate trials. …"
"A basic question faced by a trial judge considering whether to order a separate trial, or an appellate court considering whether a miscarriage of justice has occurred because he did not, always is whether the prejudicial effect of the inadmissible evidence is (or was) capable of being adequately neutralised by appropriate instructions to the jury. That question will usually involve two further issues, namely:
(1) Will an average jury be reasonably capable, as an intellectual exercise, of performing the task thus given them? and
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- (2) 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 a particular accused even though it is inadmissible against him?"
- Although Neasey J was in dissent, Underwood J agreed, at 117, with those observations. See also R v Pinkstone [2001] WASC 137 at [56] - [72]; R v Deemal-Hall [2005] QCA 206 at [69]; Robinson v The State of Western Australia [2006] WASCA 90 at [16].
56 In R v Wood [2000] WASC 64, Malcolm CJ explained the nature of the direction which a trial Judge should give in relation to evidence which is admissible solely against one co-accused, but is or may be prejudicial against the other co-accused, and when the direction should be given. His Honour said, at [9]:
"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: R v Short [1928] St R Qd 246. In R v Tool [1955] 2 WN (NSW) 338 at 340 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."
57 The trial Judge should identify for the jury the evidence which is relevant and admissible in relation to each co-accused, and should direct them as to the use of that evidence. In the administration of the criminal law, it must be accepted, until the contrary is demonstrated, that the jury accede to and faithfully apply the trial Judge's directions. See Demirok v The Queen (1977) 137 CLR 20 per Barwick CJ at 22.
58 I should mention R v Darby (1982) 148 CLR 668. In Darby the High Court held that the conviction of a conspirator, whether tried jointly with an alleged co-conspirator or separately, may stand, notwithstanding that the alleged co-conspirator is acquitted, unless, in all of the circumstances, the conviction is inconsistent with the alleged co-conspirator's acquittal. The joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ refers, at 677, to the conceptual difficulties which attend the task of a jury determining the guilt of both A and B on a joint trial for conspiring together (and with no-one else). Their Honours said, at 677:
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- "It is true that greater conceptual difficulties attend the task of a jury determining the guilt of both A and B on a joint trial for conspiring together (and with no one else) than in the case of separate trials. A can only be convicted if the jury is satisfied beyond reasonable doubt on evidence admissible against him, inter alia, that A and B conspired together. In essaying their duty in the case of B, the same jury which was satisfied of A's guilt in conspiring with B may on evidence admissible against B fail to be satisfied beyond reasonable doubt that B did conspire with A. The result is then that in the one trial the jury is saying at the same time that A is guilty of conspiring with B but B is not guilty of conspiring with A. In reality, of course, the apparent phenomenon is readily explained in terms of the obligation of the jury to consider separately the guilt of the two accused on the basis only of the evidence admissible against each.
Nevertheless, there remains an incongruity in the direction of a trial judge which on the one hand instructs the jury that they must consider separately the guilt of each accused, taking into account only the evidence admissible against each and on the other tells them that they must either convict them both or acquit them both. But it may be worse than that. Such a direction might well result in injustice to one accused. In a case where the evidence against A is overwhelming, a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act on a reasonable doubt on the evidence admissible against B."
- Their Honours then observed, at 678:
"In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v The Queen ((1979) 44 CCC (2d) 481) requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice. …"
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- Darby were not intended to modify the principles governing joint trials in relation to substantive offences (including the principle that, ordinarily, where accused are jointly charged, there should be a joint trial). See, for example, Collie at 309 - 310, 321 - 322; Torney (1983) 8 A Crim R 437 at 449; R v Connell (No 1) (1992) 8 WAR 518 at 529; Pinkstone at [58] - [73]; R v Iaria and Panozzo [2004] VSC 110 at [27]. In New South Wales, the observations in Darby appear to have been applied more broadly; in particular, they have not been confined to charges of conspiracy. See, for example, R v Guldur (1986) 8 NSWLR 12 at 16 - 17; Farrell & Cotton (1990) 48 A Crim R 311 at 312 - 313. Darby was, of course, decided before Webb, and none of the judgments in Webb refer to Darby. This, and the context in which the observations in the joint judgment in Darby were made, suggest that those observations apply only in relation to a charge of conspiracy between two persons (or, perhaps, conspiracy generally), and not in relation to substantive offences. In my opinion, the line of authority in this State, Victoria and South Australia in relation to this issue is, with respect, correct.
The proper construction of s 133(4) and (5) of the Criminal Procedure Act
60 The power of a Court under s 133(4) of the Criminal Procedure Act to order separate trials is not enlivened unless the Court is satisfied that an accused is likely to be prejudiced by a joint trial. If the Court is satisfied that an accused is likely to be so prejudiced, the Court may, relevantly, in its discretion, order that the accused be tried separately from the other or others.
61 Some prejudice to one or more co-accused will often occur in any joint trial. See Deemal-Hall at [66]. Compare R v Middis, unreported; SCt of NSW (Hunt J); 27 March 1991 at 5 and R v Andrews (No 2) [2005] SASC 301 at [10], where the existence of some such prejudice in a joint trial was described as "inevitable".
62 Section 133(5)(a) of the Criminal Procedure Act provides, in effect, that if a Court is satisfied that an accused is likely to be prejudiced by a joint trial, and the Court is considering whether to order separate trials, "it is open" to the Court to decide that any likelihood of prejudice "can be guarded against" by a direction to the jury and, in consequence, to decline to order separate trials.
63 The words "to so decide" in pars (b) and (c) of s 133(5) refer to the decision under par (a) of that subsection that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury. See Donaldson v Western Australia (2005) 31 WAR 122 per
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- Roberts-Smith JA at 141 [96] - [97] (with whom Wheeler JA and Miller AJA agreed in relation to that issue of construction).
64 The apparent purpose or object of Parliament in enacting s 133(5), in the context of a Court's power to order separate trials where two or more offenders are jointly charged, was to give effect to Recommendation 273 in the Law Reform Commission of Western Australia's Final Report on the Review of the Criminal and Civil Justice System (Project 92), dated September 1999. The modern approach to statutory interpretation enables a Court, at common law and apart from any reliance on such provisions as s 19 of the Interpretation Act 1984 (WA), to have regard to reports of law reform bodies to ascertain Parliament's intention in enacting a statutory provision. See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112 - 113. Recommendation 273, at page 221 of the Final Report, was in these terms:
"The existing principles of law which hold that a direction by the trial judge to the jury cannot overcome the prejudice to co-defendants arising from joinder should be overridden. The law should be amended so that if the judge before whom the issue of joinder is brought concludes that prejudice can be overcome by an appropriate direction of the trial judge, joinder of defendants at trial should be permitted."
65 In my opinion, Recommendation 273 did not accurately state the principles which had developed in relation to the exercise of a Court's discretionary power to order separate trials where two or more accused were jointly charged. The true principles, of relevance, were that, subject to the observations in the joint judgment in Darby in relation to conspiracy trials:
(a) a Court would order separate trials if it was satisfied that, in the circumstances, the risk of prejudice to an accused from a joint trial could not adequately be neutralised by a direction to the jury, so as to ensure a fair trial;
(b) if, however, the Court was satisfied that any risk of prejudice could be neutralised by an appropriate direction, so as to ensure a fair trial, it would not, ordinarily, order separate trials.
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66 The form and content of s 133(5) reflect Recommendation 273 (and also Recommendation 271 in relation to the joinder of two or more charges against an accused).
67 In my opinion, if a Court is satisfied, for the purposes of s 133(4), that an accused is likely to be prejudiced by a joint trial, the Court, in deciding whether or not to exercise its discretionary power under s 133(4) to order separate trials, may take into account whether or not the likelihood of such prejudice can be guarded against by a direction to the jury. The phrases "In deciding whether to make an order under subsection … (4)" and "it is open", in s 133(5), are significant. They indicate that whether or not the Court's discretionary power under s 133(4), to order separate trials, should be exercised, is not to be determined solely by a decision, under s 133(5)(a), as to the efficacy of a direction in guarding against the likelihood of prejudice. Section 133(5) emphasises that the Court may refuse to order separate trials on the ground that the likelihood of prejudice to the accused can be guarded against by a direction, notwithstanding the existence of any of the matters referred to in pars (b) and (c) of that subsection. Otherwise, the provisions of s 133(4) and (5) do not specify, emphasise or restrict the considerations which the Court may take into account in determining whether or not to exercise its discretionary power under s 133(4). In my opinion, if a Court is satisfied, for the purposes of s 133(4), that an accused is likely to be prejudiced by a joint trial, then, subject to s 133(5), the considerations which the Court may take into account in deciding whether or not to order separate trials are those which were relevant prior to the enactment of s 133. The overriding question is whether separate trials are required to ensure that both or all of the accused receive a fair trial. The determination of that question involves a consideration of the interests of the accused and also the public interest.
The merits of the appeal
68 I agree with Pullin JA (for the reasons given by his Honour) that the learned primary Judge erred in law in his exercise of the discretionary power conferred by s 133(4).
69 I also agree with Pullin JA that the learned primary Judge should not have made an order for separate trials. In my opinion, an appropriate direction by the trial Judge to the jury will be sufficient to neutralise any prejudice to the first respondent arising from the out of court statements made by the second respondent in relation to her. The case under appeal does not involve a complicated mixture of admissible and inadmissible
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- evidence which a jury could not reasonably be expected to analyse in detail. An express and careful direction by the trial Judge, as to the use which the jury may make of the evidence, so far as it concerns each of the first and second respondents, will be sufficient to ensure a fair trial. The jury should be capable of performing that task. It is reasonable to expect that the jury, properly directed, will not take into account any prejudicial evidence against the first respondent which is inadmissible against her. There are no special or other features of the proceedings which require the first and second respondents to be tried separately.
70 I would allow the appeal.
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