The State of Western Australia v Herbert [No 2]
[2016] WASC 222
•21 JULY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HERBERT [No 2] [2016] WASC 222
CORAM: CORBOY J
HEARD: 27 APRIL & 4 JULY 2016
DELIVERED : 21 JULY 2016
FILE NO/S: INS 135 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
KODEY RAY SEATON HERBERT
TRACEY CHRISTINE HEPBURN
ROCKY RAY HERBERT
Accused
Catchwords:
Criminal law - Applications for separate trials under s 133(3) and s 133(4) of the Criminal Procedure Act 2004 (WA) - No new principles
Legislation:
Criminal Procedure Act 2004 (WA)
Result:
Applications for separate trials refused
Category: B
Representation:
Counsel:
Prosecution : Ms C Barbagallo
First-named Accused : Mr A E Monisse
Second-named Accused : Mr S R McGrath
Third-named Accused : Mr B C Tyers
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
First-named Accused : Andrew Monisse
Second-named Accused : Stephen McGrath
Third-named Accused : Ben Tyers
Case(s) referred to in judgment(s):
Beck v The Queen; Smith v The Queen [1984] WAR 127
Castro v The Queen [1881] 6 App Cas 229
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
JAW v The State of Western Australia [2016] WASCA 40
Kalani v The State of Western Australia [2013] WASCA 132
Leaman v The Queen (1987) 28 A Crim R 104
R v Barrell (1979) 69 Cr App R 250
R v Braysich [2006] WASCA 220; (2006) 166 A Crim R 109
R v Collins; Ex parte Attorney-General [1996] 1 Qd R 631
R v Demirok [1976] VR 244
R v Middis (Unreported, NSWSC, 27 March 1991)
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
Smith v The Queen [2007] WASCA 163; (2007) 35 WAR 201
Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Campbell [2016] WASC 177
The State of Western Australia v Carlino [2014] WASC 174
The State of Western Australia v Micalizzi [2010] WASCA 147
The State of Western Australia v Russell [2009] WASCA 154
Zammit v Western Australia [2007] WASCA 66; (2007) 34 WAR 302
CORBOY J:
The application and the result
Kodey Ray Seaton Herbert, Tracey Christine Hepburn and Rocky Ray Herbert have been joined in an indictment that alleges that:
(1)on 2 January 2014, at South Hedland, Kodey Ray Seaton Herbert wilfully and unlawfully destroyed a motor vehicle and that the motor vehicle was destroyed by fire (count 1);
(2)between 5 November 2014 and 1 May 2016, at South Hedland and elsewhere, Kodey Ray Seaton Herbert, Tracey Christine Hepburn and Rocky Ray Herbert attempted to pervert the course of justice upon the prosecution of Kodey Ray Seaton Herbert on a charge of Criminal Damage by Fire by causing Francis Graham Bodey to swear an affidavit withdrawing his statement dated 6 November 2014 (count 2);
(3)on or about 1 February 2016, at South Hedland, Kodey Ray Seaton Herbert and Rocky Ray Herbert were armed with an offensive weapon, namely a baseball bat, in circumstances likely to cause fear to Francis Graham Bodey (count 3);
(4)on 14 February 2016, at South Hedland, Kodey Ray Seaton Herbert made a threat to unlawfully kill Francis Graham Bodey (count 4);
(5)on the same date and at the same place as count (4), Kodey Ray Seaton Herbert was armed with an offensive weapon, namely a wooden stick, in circumstances likely to cause fear to Francis Graham Bodey (count 5);
(6)at the same date and at the same place as count (4), Kodey Ray Seaton Herbert made a threat to unlawfully injure Hayley Tamara Herbert (count 6);
(7)on 30 April 2016, at South Hedland, Rocky Ray Herbert, with intent to harm Francis Graham Bodey, did an act as a result of which the life, health or safety of Francis Graham Bodey was, or was likely to be, endangered (count 7).
Mr Kodey Herbert has applied for orders pursuant to s 133 of the Criminal Procedure Act 2004 (WA) (CPA) that:
(a)count 2 be tried separately to count 1 and to all other counts on the indictment;
(b)counts 3 to 6 be tried separately to counts 1 and 2 on the indictment.
Ms Hepburn has applied for an order under s 133 CPA that count 2 on the indictment be tried separately to all other counts on the indictment.
The applications for severance are opposed by the State. Mr Rocky Herbert has made no application in respect of the charges alleged against him. Accordingly, references in the reasons that follow to Mr Herbert are to Mr Kodey Herbert.
I have concluded that the applications should be refused for the reasons that follow.
The facts alleged by the State
The relationship between the accused and the complainant
Ms Hepburn and Mr Rocky Herbert are in a relationship from which they have three children: Hayley Herbert, Levi Herbert and Mr Herbert. Mr Bodey is in a relationship with Ms Hayley Herbert, so that Ms Hepburn and Mr Rocky Herbert are Mr Bodey's parents‑in‑law and Mr Herbert is his brother‑in‑law.
The arson charge
The State alleges that sometime between 6 pm on 1 January and 9.45 am on 2 January 2014, a vehicle was stolen from the front yard of a house in South Hedland. The vehicle belonged to Mr Terrence McInnes. Sometime before 9.45 am on 2 January 2014, Mr Herbert arrived at Mr Bodey's residence driving Mr McInnes' motor vehicle. Mr Herbert and Mr Bodey drove the vehicle around for a time until it was driven into a storm drain. They are then alleged to have set fire to the vehicle using fuel as an accelerant.
Mr Estrada‑Gray and Mr Conohan separately came across the burning vehicle. Mr Estrada‑Gray called the police and, while he was on the phone, Mr Herbert and Mr Bodey ran from the direction of the vehicle towards where he and Mr Conohan were standing. Mr Bodey told Mr Estrada‑Gray and Mr Conohan that they had seen 'the whole thing' and had checked the vehicle and nobody was inside.
The police subsequently retrieved a T‑shirt and a singlet from nearby streets. The State alleges that the clothing belonged to Mr Herbert and Mr Bodey.
The State also alleges that on 3 January 2014, Ms Sarah Waters overheard Mr Herbert and Mr Bodey talking about how they had set fire to a car belonging to 'Terry'. Further, Mr Estrada‑Gray made a digiboard identification of Mr Bodey as one of the two men that he saw in the vicinity of the burning vehicle.
On 12 March 2014, Mr Herbert and Mr Bodey were arrested and each participated in an electronically recorded interview. They were released following those interviews.
On 6 November 2014, Mr Bodey was again arrested and charged with arson. He provided a signed statement to the police in which he admitted setting fire to Mr McInnes' car. He implicated Mr Herbert in the offence.
Mr Herbert was subsequently arrested and charged with arson. He declined to participate in a further electronically recorded interview with police.
Mr Bodey pleaded guilty to the charge of arson on 7 May 2015. He was sentenced to a term of 2 years' imprisonment, conditionally suspended for 18 months.
Mr Bodey will be called as a witness at the trial of the accused. It is apparent that the State's case against Mr Herbert on count 1 depends substantially on the evidence of Mr Bodey.
Count 2
On 20 November 2014, Mr Bodey made an affidavit in which he stated that he had previously signed a statement implicating Mr Herbert in the arson offence because he had been threatened and induced by the police to make the statement. He asserted that Mr Herbert had not been involved in setting fire to the vehicle. The State alleges that the affidavit was delivered to the South Hedland police station by Ms Hayley Herbert.
Mr Bodey made a further statement to the police on 15 January 2016. He stated that his first statement to the police implicating Mr Herbert in the arson offence was true and that the affidavit made by him on 20 November 2014 was false. He further stated that he made the affidavit on 20 November 2014 as a result of statements made to him by Ms Hepburn and Mr Rocky Herbert.
On 11 December 2014, Mr Herbert and Ms Hepburn were charged with attempting to pervert the course of justice. The charge was based on recorded prison calls. A search warrant executed at Ms Hepburn's house located documents and computer records which the State alleges establish that Mr Bodey's affidavit had been prepared on Ms Hepburn's computer.
Count 3
The statement made by Mr Bodey on 15 January 2016 was served on Mr Herbert's solicitor on 1 February 2016. The State alleges that on 1 February 2016, and after Mr Bodey's statement had been served on Mr Herbert's solicitor, Mr Herbert and Mr Rocky Herbert threatened Mr Bodey with a baseball bat.
Counts 4 - 6
The State alleges that on 14 February 2016, Mr Herbert again confronted Mr Bodey. Mr Herbert was armed with a wooden stick and threatened to kill Mr Bodey. Mr Bodey ran away and escaped over a fence.
It is further alleged that Mr Herbert threatened Ms Hayley Herbert during the same incident. She eventually escaped and called emergency services.
Count 7
The State alleges that on 30 April 2016, Mr Bodey received a text message from Mr Matthew Roberts inviting him to visit Mr Roberts at his unit in South Hedland. Mr Bodey alleges that he was struck by a metal pole when he entered Mr Matthew Roberts' unit. He fell backwards and continued to be assaulted with the pole until he managed to escape. The State alleges that Mr Rocky Herbert committed the assault in the company of Mr Roberts and two others.
The statutory framework
Section 85 of the CPA provides that sch 1 to the Act has effect in relation to indictments and charges in them and that an indictment must comply with the requirements of sch 1, div 2 (clauses 2 ‑ 8 of the schedule).
Clause 7(3) of sch 1 provides that a prosecution notice or indictment may charge two or more offences if the offences:
(a)form or are a part of a series of offences of the same or a similar character; or
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose.
Clause 7(4) of sch 1 provides that a prosecution notice or indictment may charge two or more persons with, among other things, committing the one offence.
Clause 9(1) of sch 1 provides that if one prosecution notice or indictment contains two or more charges, the charges must be tried together unless a court orders otherwise under the CPA. Clause 9(2) similarly provides that if one charge charges two or more accused, they must be tried together unless a court orders otherwise.
The power to make an order for separate trials is conferred by s 133 of the CPA. In particular, s 133(3), (4) and (5) provide that:
(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 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.
The meaning and effect of s 133
The meaning and effect of s 133 of the CPA has been considered by the Court of Appeal in a number of cases. Accordingly, the principles to be applied in determining an application under the section are well established: see, for example, Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122; The State of Western Australia v Bowen& Anor [2006] WASCA 133; (2006) 32 WAR 81; The State of Western Australia v Micalizzi [2010] WASCA 147; The State of Western Australia v Russell [2009] WASCA 154 and Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326. The principles in relation to an application under s 133(4) were recently summarised by Hall J in The State of Western Australia v Campbell [2016] WASC 177.
Subject to making allowance for the different context, the principles to be applied in determining an application under s 133(3) and s 133(4) are substantially the same. It is not necessary to repeat the principles other than to note the following matters that are particularly relevant to the applications made by Mr Herbert and Ms Hepburn:
(a)The discretion to order separate trials under s 133(4) of the CPA is not enlivened unless the court is satisfied that an accused is likely to be prejudiced in the trial of an indictment because it alleges more than one charge or because it also charges one or more other accused.
(b)There must be reasonable grounds upon which the court can be properly satisfied that an accused is likely to be prejudiced by a joinder of charges or accused: Micalizzi [24] (McLure P).
(c)The matters said to give rise to the likely prejudice must impact or affect what happens in the trial. The likely prejudice must be actual and not assumed: Micalizzi [25] (McLure P). The prejudice must be apparent on facts agreed or proven and not based on speculation or hypothesis: Western Australia v Russell [56] (Miller JA).
(d)A trial judge is required to indicate to the jury where evidence that is inadmissible against one accused is led against another accused in a joint trial. The jury should be advised of the limited use that may be made of the evidence at the time that it is elicited as well as in the trial judge's final directions. The trial judge should clearly identify the evidence and direct the jury on its use in the case against each accused. Similarly, a trial judge is required to identify for the jury what evidence is admissible on each count in an indictment that contains multiple counts.
(e)A jury is to be entrusted to carry out those directions provided that the trial judge's instruction to put aside inadmissible evidence is reasonably capable of being performed. Accordingly, the question of whether a direction can guard against the prejudice to an accused from incriminating evidence that is admissible only in the case against a co‑accused will usually involve two issues: first, will an average jury be reasonably capable, as an intellectual exercise, of performing the task given to them and second, is the prejudice likely to be so great in the circumstances that it would not be reasonable to expect a jury to leave the prejudicial evidence out of account against a particular accused even though it is inadmissible against him or her: Bowen [55] (Buss JA, citing with approval Leaman v The Queen (1987) 28 A Crim R 104). Again, similar considerations arise in relation to an indictment that contains multiple counts.
(f)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 the others, where the evidence against the others contains material that is highly prejudicial to the accused, although inadmissible against him or her, 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.
The joinder of accused in an indictment promotes consistency in decision‑making, facilitates a single and final enquiry into matters which arise out of, or essentially involve, common issues of fact and promotes the due and expedient administration of justice: Russell v The State of Western Australia [128] (McLure P). The prima facie position that there should be joint trials is not easily displaced: Bowen [30] (Pullin JA), cited with approval by Miller JA in The State of Western Australia v Russell [61]. That is also the position where an indictment properly alleges more than one charge.
The application by Mr Herbert
The joinder of counts
It was accepted by Mr Herbert that the charges alleged by the State had been properly joined in a single indictment. That concession was rightly made.
In R v Barrell (1979) 69 Cr App R 250, three accused were charged with affray and assault. One of the accused was also charged, in the same indictment, with attempting to pervert the course of justice. It was alleged that he had approached a witness and offered money if the witness would alter his evidence concerning the assault. The relevant rule of criminal procedure permitted charges to be joined in the same indictment if the charges were 'founded on the same facts, or form or [were] part of a series of offences of the same or a similar character’. The English Court of Appeal held that:
The phrase 'founded on the same facts' does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin. If the charge described by counsel as the subsidiary charge is one that could not have been alleged but for the facts which give rise to what he called the primary charge, then it is true to say for the purposes of [the] rule … that those charges are founded, that is to say have their origin, in the same facts and can legitimately be joined in the same indictment (252 ‑ 253).
R v Barrell has been cited with approval and followed in a number of cases including Beck v The Queen; Smith v The Queen [1984] WAR 127; R v Collins; Ex parte Attorney-General [1996] 1 Qd R 631 and Zammit v Western Australia [2007] WASCA 66; (2007) 34 WAR 302.
Mr Herbert's submissions
It was submitted that Mr Herbert would be prejudiced by a trial of all counts alleged in the indictment in a way that was explained by Lord Blackburn in Castro v The Queen [1881] 6 App Cas 229:
[I]t was frequently not fair to do it, because it might embarrass a man in the trial if he was accused of several things at once, and frequently the mere fact of accusing him of several things, was supposed to tend to increase the probability of his being found guilty, as it amounted to giving evidence of bad character against him (244).
Reference was also made to the observations of Brennan J in Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528:
When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted (541 ‑ 542).
It was submitted that the offences alleged by counts 2 ‑ 6 of the indictment were of a different character to the charge of arson alleged in count 1 of the indictment and that the offence alleged by count 2 was different in character to the offences alleged by counts 3 ‑ 6. Consequently, evidence relevant to those counts would not be admissible in proof of the arson charge as:
(a)there was no basis for an application under s 31A of the Evidence Act 1906 (WA);
(b)the evidence relevant to counts 2 ‑ 6 could not be characterised as post offence conduct for the purpose of the arson charge because of the significant gap in time between the charges.
It was further submitted that Mr Herbert was prejudiced by the fact that Mr Bodey was both the principal witness for the arson charge and the complainant in respect of the other charges (except for count 6). The jury would, so it was submitted, be swayed by the fact that Mr Bodey had pleaded guilty to the arson charge when they came to assess his evidence – that is, it is likely that the jury would reason that Mr Bodey was telling the truth as he had confessed to his involvement in the arson offence.
The State's submissions
The State submitted that Mr Herbert's application for separate trials ought to be refused as:
(a)The charge alleged by count 1 in the indictment provides the context for the charge alleged by count 2 and counts 1 and 2 provide the context for the charges alleged in counts 2 ‑ 6. That meant that not only were the counts properly joined in the indictment but that evidence relevant to each count would be 'cross‑admissible' across all counts.
(b)The prejudice alleged by Mr Herbert was neither unfair nor impermissible prejudice. The jury would be entitled to hear and use evidence concerning the entirety of Mr Herbert's conduct as alleged by the various counts on the indictment. The evidence provided context for each charge and was relevant to:
(i)establishing the relationship between the various parties;
(ii)proving a motive for the alleged offending;
(iii)negating any suggestion of an innocent explanation for Mr Herbert's conduct and to any defence that might be open.
(c)The essence of Mr Herbert's submissions was that 'he does not want the jury to know about all of his bad behaviour towards [Mr] Bodey which has its genesis in Kodey Herbert's distain for [Mr] Bodey's cooperation with the police'. Mr Herbert had failed to particularise the unfair or impermissible prejudice that he was likely to experience in the trial and he had failed to establish reasonable grounds upon which the court could properly be satisfied that he was likely to be prejudiced in the trial and/or that any likely prejudice was the result of the joinder of the charges alleged against him.
(d)The directions required to be given by the trial judge to avoid any likelihood of prejudice were simple and capable of being easily followed and applied by the jury.
Determination of the application
In my view, Mr Herbert has not established that he is likely to be prejudiced in the trial by the joinder of counts 1 ‑ 6 in the indictment and by each of those counts being tried together. That is because, as the State submitted:
(a)Evidence relevant to the charge alleged by count 1 is admissible on the charge alleged by count 2. The arson offence provides the context in which it is alleged that Mr Herbert and others together attempted to pervert the course of justice - a matter that is immediately apparent from the wording of the charge.
(b)Evidence relevant to the charges alleged in counts 1 and 2 is admissible on the charges alleged by counts 3 ‑ 6 of the indictment for the reasons given by the State.
Further, counts 2 ‑ 6 allege conduct by Mr Herbert subsequent to the arson offence the subject of count 1. Evidence concerning that conduct would be admissible as part of the State's case on count 1 if the jury was satisfied beyond reasonable doubt that Mr Herbert had engaged in the conduct and that he had done so out of a consciousness of guilt. Similarly, Mr Herbert's conduct as alleged in counts 3 ‑ 6 would be admissible as part of the State's case on count 2 if the jury was satisfied beyond a reasonable doubt that Mr Herbert had engaged in the conduct and that he had done so out of a consciousness of guilt.
Accordingly, I am satisfied that Mr Herbert has not established that he is likely to be prejudiced in the trial of the indictment because it contained multiple counts. There is no impermissible prejudice from a joinder of charges or accused where evidence on one charge is admissible on other charges: Donaldson and see also, for example, JAW v The State of Western Australia [2016] WASCA 40.
However, if I am wrong in that conclusion, I am further satisfied that any likelihood of prejudice can be guarded against by appropriate directions to the jury. Although they are connected, the charges alleged against Mr Herbert relate to separate incidents. Consequently, a comprehensive 'separate consideration' direction and directions relating to the evidence admissible on each count (including directions on the use that might be made of evidence that is 'cross‑admissible') would be straightforward and, in my view, capable of being readily comprehended and applied by the jury.
It is relevant to note in this context a second aspect of the appeal in R v Barrell. It was contended that the charge of attempting to pervert the course of justice ought to have been severed and tried separately from the affray and assault charges even if the charges had been properly joined in the indictment. That complaint was also dismissed by the English Court of Appeal:
The gravaman of the argument was that the prejudice created by the allegations of an attempt at corrupting a principal witness was such as to preclude even the possibility of an acquittal on counts 1 and 2 in the case of Wilson. That his position, in the view of the jury, would not have been improved by the introduction of the evidence in support of count 3 [perverting the course of justice] was no doubt true; but even if that count was not tried together with counts 1 and 2 the evidence related to it would have been relevant and admissible to demonstrate Wilson's true position in regard to those earlier counts. Whatever odium arose from that situation would be precisely the same. The jury were told to consider each count (and each defendant) separately …
The appellant Barrell echoes the same complaint with the emphasis that as he was in no way concerned in the attempt to pervert the course of justice, it was doubly unfortunate for him that the atmosphere was tainted with the evidence of the alleged effort at bribery by his co‑accused. Here again, however, the jury were told in clear terms that they were not to hold it in any way against Barrell, and that it did not reflect adversely on his position at all (253).
The application by Ms Hepburn
Mr Hepburn's submissions
Ms Hepburn's application for a separate trial rested on the following observations made by Hall J in The State of Western Australia v Carlino [2014] WASC 174:
A conclusion that an accused would be likely to be prejudiced at a joint trial does not necessarily require that a separate trial be ordered. It merely enlivens the discretion to make such an order. In considering whether to exercise the discretion regard must be had to whether any prejudice can be adequately guarded against by the giving of appropriate instructions to the jury. The most obvious cause of prejudice is evidence that is admissible against one accused but not another. There are however other possible sources of prejudice, including delay caused when one accused is charged at a much later time to another and the cost burden on an accused where the evidence is relevant and admissible against him or her represents only a relatively small part of the total evidence [27].
It was submitted, by reference to those observations, that count 2 on the indictment should be severed and tried separately as:
(a)Ms Hepburn was only a party to one of seven counts on the indictment;
(b)the potential evidence against Ms Hepburn was only contained in half of the prosecution brief;
(c)the evidence against Mr Herbert on the remaining counts on the indictment was irrelevant to the charge alleged against Ms Hepburn;
(d)Ms Hepburn would be prejudiced by the costs of a trial where much of the evidence was inadmissible against her;
(e)a properly instructed jury would not be capable of distinguishing between evidence that was only admissible against Mr Herbert and the evidence that was only admissible against Ms Hepburn.
The State's submissions
The State emphasised that Ms Hepburn did not allege that the evidence against her was significantly weaker than the evidence proposed to be adduced against the co‑accused or that the evidence that was admissible against the co‑accused was highly prejudicial as against her; that is, Ms Hepburn did not allege that she was prejudiced in the manner identified by Hunt J in Middis. The State further submitted that the costs involved in defending the charge was not prejudice of a kind relevant to s 133(4) as it was not prejudice 'in the trial'. Further, and in any event, the likelihood of any prejudice could be adequately guarded against by appropriate directions to the jury having regard to the nature of the charge alleged against Ms Hepburn and the allegations made by the remaining counts in the indictment.
I agree with the State’s submission that the prejudice identified by Ms Hepburn was not prejudice in the trial for the purpose of s 133(4). Accordingly, the court has no discretion to order a separate trial.
In any event, I would not exercise a discretion to sever the indictment for the following reasons.
First, much of the evidence to be adduced by the State at the trial concerns counts 1 and 2. As has been noted, evidence on count 1 is relevant to the State's case against each of the accused on count 2.
Second, for the reasons that have already been noted in relation to Mr Herbert's application, it will not be difficult for the jury to follow and apply directions that will guard against any prejudice to Ms Hepburn from a joint trial.
Third, there has been some difference of opinion over the extent to which the court may have regard to what was referred to in R v Demirok [1976] VR 244 as 'administrative' matters - that is, matters relating to the public interest and the interest of the parties in criminal proceedings – in exercising a discretion under s 133(4). In Bowen, Pullin JA (with whom Roberts‑Smith JA agreed on this point) concluded that matters of public interest, such as the wasted cost and time if more than one trial were conducted and the inconvenience of witnesses were irrelevant to the exercise of the discretion conferred by s 133 of the CPA. Buss JA (as his Honour then was) reached a different conclusion. His Honour considered that:
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 [67].
However, the matters identified by Buss JA concern the exercise of the discretion conferred by s 133 – a discretion that only arises if the applicant has first demonstrated prejudice as a result of the joinder of charges or accused in an indictment.
The difference of views in Bowen was noted but not further analysed by Martin CJ in R v Braysich [2006] WASCA 220; (2006) 166 A Crim R 109. In Russell v Western Australia, Buss JA noted that observations by McLure P in Micalizzi (at [28]) suggested that the view that his Honour had taken in Bowen was to be preferred. Nevertheless, his Honour applied the construction of s 133 favoured by the majority in Bowen. Further, in Kalani v The State of Western Australia [2013] WASCA 132, Newnes JA stated that if the discretion conferred by s 133 was enlivened, 'the overriding question in exercising the discretion is whether separate trials are required to ensure that the accused receive a fair trial' [76].
It is also relevant in this matter to note what was said by Buss JA in Smithv The Queen [2007] WASCA 163; (2007) 35 WAR 201 in dismissing an appeal against a refusal to order separate trials:
[t]he fact that one appellant will not be actively involved in the trial for significant periods during which evidence will be led which is relevant only to the other, does not constitute a sufficient basis for ordering separate trials, at least on the facts of the present case. See R v Braysich (2006) 166 A Crim R 109; R v Connell (No 1) (1992) 8 WAR 518 [40].
With great respect to Hall J, in my view the matters identified by Ms Hepburn as the likely cause of prejudice (other than the prejudice said to flow from the admissibility of evidence) are irrelevant to the exercise of the court's discretion on the majority view in Bowen. Further, those matters would not justify making an order for separate trials even if an expansive view was taken of factors that are relevant to the exercise of the court's discretion as they do not demonstrate that such an order is necessary to ensure that Ms Hepburn receives a fair trial and/or are insufficient to justify the exercise of the discretion in the circumstances.
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