The State of Western Australia v Campbell
[2016] WASC 177
•15 JUNE 2016
THE STATE OF WESTERN AUSTRALIA -v- CAMPBELL [2016] WASC 177
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 177 | |
| Case No: | INS:355/2015 | 10 JUNE 2016 | |
| Coram: | HALL J | 15/06/16 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for separate trial refused | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA DARREN GRAEME KENNETH CAMPBELL |
Catchwords: | Criminal law Application for separate trial Whether prejudice to accused from evidence only admissible against coaccused Whether any prejudice can be guarded against by directions Section 133(4) Criminal Procedure Act 2004 (WA) |
Legislation: | Criminal Procedure Act 2004 (WA), s 133 |
Case References: | Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 Demirok v The Queen (1977) 137 CLR 20 Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 Leaman v The Queen (1987) 28 A Crim R 104 R v Demirok [1976] VR 244 R v Glover (1987) 46 SASR 310 R v Middis (Unreported, NSWSC, 27 March 1991) R v Webb (1992) 59 SASR 563 Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 The State of Western Australia v Kalani [2013] WASCA 132 The State of Western Australia v Micalizzi [2010] WASCA 147 The State of Western Australia v Russell [2009] WASCA 154 Tripodi v The Queen (1961) 104 CLR 1 Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
DARREN GRAEME KENNETH CAMPBELL
Defence
Catchwords:
Criminal law - Application for separate trial - Whether prejudice to accused from evidence only admissible against coaccused - Whether any prejudice can be guarded against by directions - Section 133(4) Criminal Procedure Act 2004 (WA)
Legislation:
Criminal Procedure Act 2004 (WA), s 133
Result:
Application for separate trial refused
Category: B
Representation:
Counsel:
Prosecution : Ms A L Forrester
Defence : Mr R Kashyap
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence : Morris Law
Case(s) referred to in judgment(s):
Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87
Demirok v The Queen (1977) 137 CLR 20
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Leaman v The Queen (1987) 28 A Crim R 104
R v Demirok [1976] VR 244
R v Glover (1987) 46 SASR 310
R v Middis (Unreported, NSWSC, 27 March 1991)
R v Webb (1992) 59 SASR 563
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Kalani [2013] WASCA 132
The State of Western Australia v Micalizzi [2010] WASCA 147
The State of Western Australia v Russell [2009] WASCA 154
Tripodi v The Queen (1961) 104 CLR 1
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
1 HALL J: The accused, Darren Graeme Kenneth Campbell, is jointly charged with Joanne Ruthsalz, Seleena Ruthsalz, Justine Campbell and Darryl Newton that on or about 2 April 2015 at Hilbert he murdered Travis Benjamin Mills. A joint trial has been listed for nine weeks commencing on 18 July 2016. Throughout these reasons I will refer to Mr Campbell as the accused, the other people charged as the co-accused, and Mr Mills as the deceased. By a written application dated 18 May 2016 the accused applies for an order pursuant to s 133(4) of the Criminal Procedure Act 2004 (WA) that he be tried separately to the co-accused.
2 The application is based on a submission that the prosecution case against the accused is dependent upon proof that he was in possession of a mobile telephone at the relevant time. Text messages sent to and from this telephone and its location at critical times are relied upon by the State to support an inference that the accused was a party to a joint criminal enterprise to kill, or at least seriously injure, the deceased. It is submitted that the evidence that the accused possessed the telephone is small in compass, and that there is a risk that the jury will merely assume that he was in possession of it. There is also said to be prejudice to the accused from the fact that each of the co-accused gave interviews to the police and, in some cases, also allegedly made admissions to other people. Some of these admissions make reference to the involvement of the accused. Any such admissions would be inadmissible against the accused but it is submitted that a direction to that effect could not sufficiently overcome the prejudice such as to ensure that the accused received a fair trial.
3 For the reasons that follow I have come to the conclusion that any prejudice to the accused can be guarded against by directions to the jury. Accordingly, the application for a separate trial is refused.
The prosecution case
4 The State case is that the accused and the co-accused were engaged in a joint criminal enterprise to kill the deceased, or at least do him an injury of such a nature as to endanger, or be likely to endanger, his life. Alternatively, the common unlawful purpose entered into is alleged to have been of such a nature that the murder of the deceased was a probable consequence of its prosecution: s 8 Criminal Code (WA). The other parties to the plan are alleged to be the deceased's partner, Seleena Ruthsalz, her mother, Joanne Ruthsalz, the accused's wife, Justine Campbell and a friend of the accused and his wife, Darryl Newton.
5 On the night of 2 April 2015 the deceased was at home at his house at 12 Poad Street, Seville Grove. His partner and daughter were not at home. He was putting together a trampoline for his daughter's birthday, which was the following day. At approximately 1.00 am on 3 April 2015 the deceased's car was reported to be on fire in a new housing estate in Hilbert. Emergency Services attended and found a person, dead, in the boot of the car. The person was later determined to be the deceased. He died as a result of 'smoke inhalation, with incineration'. The post-mortem examination was not able to determine whether the deceased had any injuries before the fire due to the damage caused by the fire.
6 Forensic examination of the house at 12 Poad Street resulted in the finding of the deceased's mobile telephone in the front yard of the house. He last used that telephone at 10.15 pm on 2 April 2015. There was also a quantity of blood in and around the lounge and family/kitchen area of the house, together with evidence of an attempt to clean up that blood. A rug that was in the family area on 1 April 2015 was not there on 3 April 2015.
7 The State submits that the accused was acting in concert with the co-accused and, accordingly, their acts and words in furtherance of the joint plan are admissible against him. In particular, communications between Justine Campbell, Joanne Ruthsalz and the accused before and at the time of the murder are, the State says, all admissible against the accused, even where he is not a direct party to the communication.
8 The State's case critically depends upon the accused being in possession of, and using, a mobile telephone with a number ending in 334 at the relevant times. That telephone number was subscribed to by the accused and the number was identified by him on 29 March 2015 as being his. The mobile telephone with that number was seized from the accused's house in Hamilton Hill on the day of his arrest. Those facts together with the content of text messages sent from that telephone are said to be capable of supporting an inference that the accused was in possession of the telephone at the relevant time. On the basis of that inference, the State will allege the following sequence of events.
9 At 12.26 am on 1 April 2015 Justine Campbell sent a text message to Darryl Newton which reads 'hey babe Darren will ve ready to come to urs in about 25-3 min. Is it cool if he gives you $20 - $25 U2 could go in one of ur cars coz he knows our cars' [sic] (prosecution brief page 3129). A text from the accused to Newton at 1.33 am states 'if still available cu in 5 min. Cool? ???? No'. Newton replied by text 'no probs'. At 3.01 am Justine Campbell sent a text to the accused stating 'baby its a green ford' (prosecution brief page 3117). The deceased's car was a green Ford.
10 CCTV footage from the vicinity of 12 Poad Street, Seville Grove shows what appears to be a station wagon circling the house between 2.14 am and 3.22 am (prosecution brief page 3434 - 3439). A witness who resides nearby reported that he saw a light coloured station wagon at about 2.30 am drive down Poad Street and back again. There were three to four silhouettes of people inside the vehicle. The car slowed at a point which was almost directly in front of the deceased's house. Telephone records for the accused's 334 telephone show that that telephone used a mobile telephone tower which serviced an area that includes the deceased's house at 2.48 am on 1 April 2015.
11 At 11.10 pm on 1 April 2015 Justine Campbell sent a text to Newton saying 'hey babe Darren just asked mecto trxt u to make sure u up for a 4 am adventure in morning' (prosecution brief page 3129). At 8.25 am the following morning on 2 April 2015, a childcare worker from a centre across the road from 12 Poad Street reported seeing a man next to bushes in the carpark. A car was parked nearby. It was a white older looking car. There was a woman sitting in the front passenger's seat. The description given of that woman fits that of Justine Campbell. There was a young man who was slim with dark hair in the back seat. The man near the bushes was slim with baggy clothes and short brown and grey hair.
12 At 8.07 pm that night the accused sent a text message to Darryl Newton saying 'when would you like to go and deal with this any particular time?'. Newton replied at 8.13 pm saying 'whenever u like'. The accused responded 'be there in 25 minutes'. This was followed by a further text which said 'sweet to take ur wheels again'. At 9.10 pm Justine Campbell is alleged to have telephoned Joanne Ruthsalz. Texts were also sent at 9.16 pm and 9.21 pm. This is based on call-charge records. The content of the call and the text messages is unknown. At 9.21 pm the accused sent a text to Newton saying 'leaving in 5'. At 9.39 pm and 9.48 pm Justine Campbell sent further texts to Joanne Ruthsalz. At 9.51 pm Newton attempted to telephone the accused. At 9.52 pm Newton purchased petrol at a BP service station in Beliar. He filled a jerry can with petrol at that station and was driving his own car at the time. Subsequent investigations have determined that it takes approximately 13 minutes to drive between that service station and the house of the deceased in Poad Street, Seville Grove.
13 At 10.08 pm a car matching the description of that of Newton was captured on CCTV footage driving on Poad Street. At 10.12 pm the accused's telephone accessed a telephone tower that covers the Seville Grove area. It continued to access towers servicing that area until 12.10 am after which it accessed towers servicing the Darling Downs area on a bearing which included Hilbert, where the deceased's car was left burning. At 10.12 pm there was a 106 second telephone call between the accused and Justine Campbell. There were also texts exchanged between the two between 11.05 pm and 11.12 pm followed by a further 68 second call at 11.13 pm. The 11.05 pm text from Justine Campbell to the accused states 'baby is it cool for her to hit hone'. At 11.10 pm the accused replied '10 mins' (prosecution brief page 3119).
14 At 11.15 pm a car matching the description of that of Newton was again caught on CCTV driving on Poad Street. At 11.41 pm CCTV footage shows what appears to be Newton's car followed shortly afterwards by another car driving west towards Lake Road. Other CCTV footage shows two cars consistent with being those of the deceased and Newton's travelling towards the housing estate in Hilbert. Tread patterns found at the location in Hilbert where the deceased's car was found burning are consistent with those of Newton's car.
15 At 12.07 am on 3 April 2015 Joanne Ruthsalz made a telephone call to Justine Campbell. There was then an attempted call from Justine Campbell to the accused at 12.09 am, followed by a text from her at 12.10 am saying 'babe, I hope all is okay. She and bub are about 20 min away from being home. I hope u left keys in trailer' (prosecution brief page 3118).
16 The State case is that the evidence referred to above supports an inference that the accused and Newton travelled to Seville Grove on the evening of 2 April 2015 as part of a joint plan to kill or severely injure the deceased. The deceased was then attacked in his home and suffered injuries resulting in significant blood loss. He was placed, or forced, into the boot of his car. The accused and Newton then drove to Hilbert where the deceased's car was set on fire, thereby killing him. The accused confirmed that it was safe for Seleena Ruthsalz to go home, the plan having been carried out.
17 Each of the co-accused participated in electronically recorded interviews and made a number of admissions. None of those admissions are said to be admissible against the accused. Admissions are also alleged to have been made by Joanne Ruthsalz and Justine Campbell to civilian witnesses. Those admissions are also not alleged to be admissible against the accused.
18 The accused did participate in an electronically recorded interview but made very limited admissions. These were to the effect that he had met the deceased once at his shop and that he knew the co-accused Newton, but that his wife did not like him and he could not see why she would speak to him. He denied ever having been to the deceased's house or being involved in any agreement to murder him. The accused also denied knowing Seleena or Joanne Ruthsalz. These latter statements are alleged by the State to be lies told out of a consciousness of guilt.
Relevant law
19 Section 133 of the Criminal Procedure Act relevantly provides as follows:
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.
(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.
If one charge charges 2 or more accused, they must be tried together unless a court orders otherwise under this Act.
21 Where multiple accused are properly joined in one indictment they must be tried together unless a court orders otherwise (cl 9). That position is justified because a joint trial promotes consistency in decision-making and facilitates a single inquiry into matters which arise out of, or essentially involve, common issues of fact or law. A joint trial will also promote the due and expeditious administration of criminal justice, including saving court time and public expense and the avoidance of unnecessary inconvenience for witnesses: Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 [128]. See also The State of Western Australia v Kalani [2013] WASCA 132.
22 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': Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 [88]. See also R v Webb (1992) 59 SASR 563 and R v Demirok [1976] VR 244. Consideration of the same issues by the same jury is likely to avoid inconsistent verdicts in such a case. See the comments of King CJ in R v Glover (1987) 46 SASR 310, 312. The prima facie position that there should be joint trials in such circumstances is not easily displaced: The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 [30] (Pullin JA).
23 In R v Middis (Unreported, NSWSC, 27 March 1991), Hunt J suggested that a separate trial will usually be ordered where the evidence against one accused is significantly weaker than against others, where the evidence against the others contains material that is highly prejudicial to the accused, although inadmissible against him, and where there is a real risk that the weaker prosecution case against the accused will be made immeasurably stronger by reason of the prejudicial material. These observations were referred to in Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302, where it was noted that they have been consistently accepted by the Court of Criminal Appeal in New South Wales. However, it was also noted that they are not exhaustive, nor are they a substitute for the application of s 133.
24 The accused must establish reasonable grounds upon which the court could properly be satisfied that he is likely to be prejudiced in the trial and that the likely prejudice is caused by the fact that the indictment also charges one or more other accused and that the prejudice cannot be cured by judicial direction. The matters that are said to give rise to the likely prejudice must be actual and not assumed and affect what happens in the trial itself: The State of Western Australia v Micalizzi [2010] WASCA 147 [23], [28]. A trial judge cannot act on speculation or hypothesis regarding how other accused may conduct their cases: The State of Western Australia v Russell [2009] WASCA 154 [156].
25 A conclusion that an accused would be likely to be prejudiced at a joint trial enlivens the discretion to sever the indictment. In considering whether to exercise this discretion regard must be had to whether any prejudice can be adequately guarded against by the giving of appropriate instructions to the jury.
26 The most obvious cause of prejudice is evidence that is admissible against one accused but not another. The typical example is admissions made by an accused to the police in the course of an interview. However, ordinarily a properly instructed jury is capable of distinguishing between evidence that is admissible against one offender but not another. Admissions made out of court after the event can usually be readily identified and quarantined. It is assumed that a jury will understand and apply the trial judge's directions: Demirok v The Queen (1977) 137 CLR 20; and Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414. There may, however, be cases in which the prejudice is so great that it cannot be overcome by judicial directions: Bowen [54], Zammit [65] (Steytler P); and Leaman v The Queen (1987) 28 A Crim R 104, 112 - 113.
27 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. First, will an average jury be capable, as an intellectual exercise, of performing the task thus given to them; and 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: Leaman (108 - 109); and Bowen [55] (Buss JA).
Merits of the application
28 The first basis upon which the accused seeks a separate trial is that the case against him critically depends upon the jury being satisfied that he was in possession of the 334 telephone at the relevant times. It is submitted that, faced with a large amount of evidence in regards to the other accused, a jury would lose sight of this critical fact and merely assume that the accused was in possession of the telephone. It is said that the evidence of the accused's possession of the telephone is meagre and does not take into account that, in his interview with the police, the accused said that he had lost the telephone.
29 In my view, the evidence that the accused was the subscriber of the 334 telephone number, that he acknowledged this, that the telephone was found by police at his house and the content of the text messages sent from that telephone in the context of other messages sent to it, provide a basis upon which it would be open to a jury to infer that the accused was in possession of the telephone at the relevant time. The fact that the accused claimed to have lost the telephone does not detract from the availability of that inference. The State says that the police interview of the accused is largely self-serving and may not be adduced. In any event, any claim to have lost the telephone is not one that a jury would be obliged to accept.
30 During argument on this application I put to counsel for the accused that if, as was claimed, possession of the telephone at the relevant time was a critical fact that had to be proven in the case against the accused, then a direction to this effect could be given to the jury. Any such direction would ensure that the jury addressed their minds as to whether this fact was proven, rather than making any assumption. Counsel accepted that such a direction could be given and would be appropriate, however he continued to express concern that such a direction would not be followed. I am unable to accept that that concern has a reasonable basis. Such a direction could be readily given, would be simple in terms and would be capable of being understood by a jury. In my view, there is no reason to think that a jury would be incapable of, or would not, follow such a direction.
31 The submissions made on behalf of the accused included a stated concern that evidence against the accused was small in quantity as compared to that against the co-accused. This submission was based upon an assumption that the only evidence admissible against the accused will be in relation to his own actions or statements. The implication was that, in the terms used in Middis, the case against the accused is weaker than against the co-accused but will be made immeasurably stronger by reason of evidence against the co-accused that is prejudicial to and inadmissible against him.
32 I do not accept that submission because it takes an artificially constrained view of the evidence admissible against the accused. As earlier noted, the prosecution case is that the accused was a party to a joint plan.
33 The prosecution will be relying upon the co-conspirator's rule of evidence. That rule applies to parties to a joint criminal enterprise: Tripodi v The Queen (1961) 104 CLR 1, 7; and Ahern v The Queen [1988] HCA 39;(1988) 165 CLR 87, 92 - 93. The co-conspirator's rule is to the effect that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the other. Anything said or done by a participant in a joint criminal enterprise in furtherance of the common purpose can be treated as having been said or done by another participant, and is admissible in evidence for all purposes.
34 A ruling as to the admissibility of the conduct and statements of the other accused in the prosecution case against Darren Campbell cannot be made at this stage. However, it is sufficient to note that if the prosecution evidence accords with the statements on the brief there is likely to be a basis for the application of the co-conspirator's rule. In those circumstances the evidence against the accused will extend beyond his own acts and statements. The case against the accused, whilst clearly not as strong as against the co-accused, could not be said to be so weak as to raise the real risk of being made immeasurably stronger by reason of prejudicial material.
35 The second basis for seeking a separate trial focuses particularly upon an alleged out of court admission made by Justine Campbell. This is an alleged prison confession made by Justine Campbell to a fellow inmate, Mishelle Preela, whilst they were both incarcerated at Bandyup Prison. The witness states that she was told by Justine Campbell that she, Justine, had become involved in a plan to kill the deceased. She said that others, including the accused, also became involved in that plan. Justine Campbell is alleged to have said that the accused and Darryl Newton went to the deceased's house and let themselves in with keys that had been obtained from Joanne Ruthsalz. The accused and Newton had kicked, punched and bashed the deceased. The deceased had then picked up a knife and stabbed the accused in the leg. Newton had then hit the deceased with a baseball bat. Justine Campbell is also alleged to have told the witness that the deceased was then placed in a car which was doused with petrol and set alight. She also said there were exchanges of text messages by which Joanne Ruthsalz was informed that it was safe for Seleena Ruthsalz to go home and that the house needed cleaning up.
36 The concern of the defence is that one of the things that the State will rely upon as indicating that such an admission was in fact made by Justine Campbell are photographs of a wound to the leg of the accused. It is submitted that it will be an impossible task for the jury to only consider this evidence in regard to the case against Justine Campbell. It is said that if the jury came to the conclusion that Justine Campbell's admissions were made and were truthful because, amongst other things, the accused had an injury to his leg then it is inevitable that they would also impermissibly use that evidence against the accused.
37 The risk that the jury could misuse this evidence is real. However, it is important to place this evidence into the broader context. The admissions made by Justine Campbell do not stand alone. Seleena and Joanne Ruthsalz both admit being party to a plan to cause significant injury to the deceased, although their contact was primarily with Justine Campbell. In her interview with the police Justine Campbell also admitted that she was a party to the plan, although she did not directly implicate the accused. The existence of the knife wound is not the only evidence which could independently corroborate Justine Campbell's prison confession. The text message exchanges and the location of the relevant mobile telephones could also be used as independent confirmation. Whilst the alleged prison confession more directly implicates the accused than any of the other admissions and thus creates prejudice to him, it is the type of prejudice that commonly arises in joint trials and is usually dealt with by directions. The only factor which is suggested as likely to raise irremediable prejudice is the use that the jury would make of the photographs of the injury to the accused's leg.
38 At the hearing of this application, counsel for the State noted that the prosecution evidence against the accused would include the finding of blood from the accused in Newton's car. This would be used to support an inference that he had been in that car. Counsel was unable to say whether photographs of the accused's wound would also be relied upon in this regard. It was not clear whether in the event that the accused was tried separately, photographs of his leg injury would be adduced in any event.
39 It is necessary to determine this application on the state of the evidence that now exists. There is obviously a significant possibility that if one or more of the co-accused give evidence, the state of the evidence against the accused could change significantly. It is impossible to make predictions in that regard. I will determine this application on the basis that the photographs of the accused's leg wound will only be admissible against Justine Campbell and only then for the purpose of determining whether she made the prison confession. In these circumstances, the existence of prejudice to the accused is made out. That, however, does not lead necessarily to a conclusion that there must be a separate trial. It requires that the discretion provided for in s 133 of the Criminal Procedure Act be exercised. Consideration must be given to whether directions could be given to the jury that would guard against any prejudice to the accused and ensure that his trial was a fair one.
40 It is important to bear in mind that the prosecution case is not that Justine Campbell was present at the time that the deceased was attacked and subsequently killed. Accordingly, any account by her of what occurred at the house, including whether the deceased used a knife to wound the accused, can only be an expression of her belief. Whether her belief in regards to what others did was a true belief is not something that the jury would have to determine. Any out of court admissions made by Justine Campbell would only be admissible against her. The jury would only need to address the question of whether she made the admissions and whether she was truly admitting her own role in what occurred. Whether what she said about others involvement was true in every detail or not would be irrelevant, as those admissions are not admissible against other accused. Thus it does not follow that because Justine Campbell said that the accused suffered a wound at the hands of the deceased, and that he had a wound of that type, that he must necessarily have incurred that wound in the way that she said. The existence of the wound makes it more likely that she said the things that are alleged but it does not mean that everything that she said was necessarily true.
41 In these circumstances the prejudice to the accused is capable of being overcome by a properly crafted direction. Such a direction could include not only a warning that Justine Campbell's prison confession is not admissible against the accused, but also that evidence of the wound might confirm that she made the confession, but that it says nothing about the accused's involvement because that confession is not admissible against him (and, in any event, she could not have had any direct knowledge of how any such wound was caused). Any belief she had in that regard could not be evidence against the accused.
42 The potential prejudice to the accused also needs to be seen in light of the evidence as a whole. Evidence of the accused's movements at the relevant time and his sending and receipt of text messages are, if accepted by the jury, significant evidence of his involvement. The case against the accused will, in all likelihood, depend critically upon a jury's findings in respect of that evidence. If the co-conspirator's rule also applies a large quantity of other evidence will also be admissible against the accused. All of this evidence would be adduced by the State even in the event of a separate trial. Seen in this light, the significance of the evidence of the wound and the likelihood that it would be misused by the jury is diminished.
43 In written submissions, but not oral submissions, reference was also made to the fact and content of the police interviews given by each of the co-accused. No particular parts of those interviews were identified as causing likely prejudice to the accused. I have, in any event, had regard to those interviews and consider that any possible prejudice can be guarded against by directions to the jury.
44 In The State of Western Australia v Russell the Court of Appeal recognised that a trial judge is not always well placed to determine whether it is necessary to order separate trials in advance of the evidence. An assessment made at this stage necessarily requires the court to consider and weigh up the likely effect of evidence the prosecution has foreshadowed and the trial judge's directions regarding that evidence.
Conclusion
45 In my view, the potential prejudicial effect to the accused of evidence that the prosecution proposes to lead in its case against the co-accused, and in particular Justine Campbell, can be guarded against by appropriate directions to the jury. For those reasons the application is refused.
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