Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal against dismissal of co­accused's application for separate trial - Four co­accused charged with murder - Trial judge's proposed directions to jury sufficient to neutralise risk of prejudice to co­accused arising from jury hearing evidence inadmissible against co­accused at a joint trial - Turns on own facts

Criminal Procedure Act 2004 (WA), s 133, sch 1, cl 7, cl 9

Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414

Kalani v The State of Western Australia [2013] WASCA 132

R v Glover (1987) 46 SASR 310

Russell v The State of Western Australia [2011] WASCA 246

The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81

The State of Western Australia v Micalizzi [2010] WASCA 147

1 McLURE P: The appellant appeals against the dismissal by McKechnie J of his application under s 133(4) of the Criminal Procedure Act 2004 (WA) (the CPA) for a separate trial. At the conclusion of the hearing of the appeal the court dismissed the appeal. These are my reasons for joining in that order.

2 The appellant (Gary David Young) is charged with Tamara Broadbent, Kym Foster and Damien Kosick that on 4 March 2012 at Wanneroo he murdered David Blenkinsopp (the deceased).

3 In broad terms, the State's case is that on the late evening of 3 March 2012 the four accused travelled by car with a gun and a shovel from an address in Morley to meet the deceased. Broadbent, who had been in a violent relationship with the deceased, lured him from an address in Wanneroo to the waiting car carrying the accused. A number of gun shots were fired at the deceased. An accused (Kosick) ran over the deceased with the car. He was then placed in the rear of the car, badly injured but still alive. All accused went in the car to a bush location where the appellant dug a hole and buried the deceased, with an accused (Broadbent) firing the gun into the sand.

4 Section 133 of the CPA relevantly provides:

(4) If a court is satisfied that an accused is likely to be prejudiced in the trial of a[n] ... 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 ...

...

(5) In deciding whether to make an order under subsection ... (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 -

...

(ii) the evidence against one of the accused is not admissible against another.

5 The prejudicial material on which the appellant relies are statements made about him by a number of co-accused in electronic records of interviews (EROI) conducted by police. The statements relied on before the primary judge were made by Damien Kosick and Kym Foster.

6 It was accepted by all parties that the statements would be admissible in the prosecution case against the co-accused who made the statement but inadmissible in the case against the appellant. Based on the material relied on by the appellant, the primary judge was satisfied that the appellant is likely to be prejudiced in a joint trial with the co-accused because the jury will hear the out of court statements made by Kosick and Foster.

7 However, the primary judge was satisfied that the prejudice could be overcome by strong directions to the jury so it was not unfair for the joint trial to proceed. The primary judge said:

It is the long experience of courts that juries are more than capable of understanding and giving effect to directions to consider evidence separately and to consider evidence which is only admissible as against a particular accused and not against another accused in a joint trial.

In this case, I propose to advise the jury in opening remarks, amongst other things, that there are in fact four separate trials being heard together and that each accused is entitled to consideration separate from the other accused and that they must reach a decision based only on the evidence admissible against that accused.

I will direct the jury in similar terms but with emphasis before it retires to consider its verdict.

At the time of tender of an EROI of a co-accused, I will advise the jury of the limited basis of the admission of the EROI and the fact that it is evidence for or against its maker only and is not to be considered in the case of any other accused.

8 There is only one ground of appeal which is in the following terms:

The learned judge at first instance erred in fact and law in failing to grant the appellant's application for a separate trial. The learned judge ... failed to identify that the weight of prejudicial evidence against the appellant was of such extent and nature that the prejudice likely to be suffered by the appellant during the trial could not be adequately overcome by a direction to the jury and, as such, the appellant would not receive a fair trial if jointly tried with his co-accused.

9 The appellant's written submissions in the appeal books did not condescend to detailed reference to, or analysis of, the out of court statements relied on as giving rise to the prejudice. The court wrote to the appellant's lawyers requiring that omission to be rectified prior to the hearing of the appeal. The appellant's lawyers failed to do so.

10 At the hearing of the appeal the appellant identified out of court statements made in an electronic record of interview with Tamara Broadbent on which he now sought to rely. Otherwise, the appellant's written and oral submissions did not travel beyond a general claim of an unacceptable risk that the appellant would not receive a fair trial because of the 'volume', 'avalanche effect', 'landslide', and 'weight' of prejudicial material against the appellant. The appellant is not adversely affected by this failure of advocacy because the court has analysed the relevant material.

11 Prior to the hearing of the appeal, the State advised the appellant's solicitors and the court of its decision not to adduce, at any joint trial involving the appellant, the relevant electronic records of the police interview conducted with Foster on 8 May 2012.

12 I omit the statements of Foster made on 8 May 2012 relied on before the primary judge in view of the State's decision not to adduce that evidence at trial. If Foster gives evidence at trial the statements will be admissible in the case against the appellant. If Foster does not give evidence, the out of court statements in question will be inadmissible hearsay.

13 The out of court statements made by Kosick relied on below are recorded in the trial judge's reasons as follows:

EROI on 28 March 2012 at 04.48

On page 30: You are going to get me fucken murdered ...

On page 31: If I say a fucken word alright my dad gets whacked alright.

On page 32: [I] had a fucken gun pointed at me dope.

EROI on 28 March 2012 at 11.48

Page 10: So, yeah (indistinct) prepared to fucken, you know what I mean, get rid of all of us.

Page 12: Q: So, and the fourth person has basically forced you to drive him David to the, er, bushland where you showed us and disposed of the body? And that was done to you at gunpoint?

That's the truth of what happened.

On page 18: He could've walked in and fucken gunned any of us down.

On page 21: 'Youse cunts fucken talk and you're fucken dead'.

EROI on 17 April 2012 at 11.26

Page 21: Um, Gary, um, planned to use Tamara as the bait, to, lure him out and shoot dead.

Page 26: Um, Gary was pretty well just telling us, you know, he was going to waste him.

Page 34: [G]ary was, he did say to me, 'Get [t]he fuck out of the car' and the gun was fuckin pointed at me while I was in the driver's seat.

Page 42: Gary's pretty well shot at the both of them. He didn't care who he killed, as long as he killed someone.

Page 56: [and] Gary was like, well, you know, he goes: 'If I was 20 years younger', he goes 'I'd fucken shoot every one of youse' you know. ... 'I'd shoot every fucken witness'.

Page 64: [Gary] was going to shoot [Irish] in the back of the head.

Page 65: [If] anything had gone wrong he would've shot us.

On page 68: I was stuck with him [Gary] and I had the fucken threats.

Page 69: '[You] talk I'll fucken gun your Dad down' ... 'I'll fucken shoot fucken Kym, Tamara, I'll shoot you'.

14 The out of court statements made by Broadbent referred to in oral submissions at the hearing of the appeal are as follows:

EROI on 28 March 2012 at 10.57

Page 6: - - - then a couple of gun, gunshots went off. I don't wanna say who done it, alright?

Page 60: I don't really wanna say [who had possession of the gun].

...

Q. Was it a fact that Gary was brought along to provide the firepower? To provide the firearm?

A. Yeah, but, I don't really wanna say.

Page 64 - 65: I think Kym was standing on that side, Gary had walked towards him - - -

Q. With the firearm?

A. Mm.

Q. So, did the car move forward before the shots, or after the shots?

A. I can't recall.

Q. Is it a possibility that he was shot a number of times and staggered forward and the car ran into Dave at that stage?

A. Yeah, I think the shots fired before, one, two, but, I don't, I can't, I can't - - -

Q. You can only recall two shots?

A. Yep, and one beside.

Q. Mm. And, you believe that Gary was standing on the, on the grass verge - - -

A. Yeah.

15 Before filing the appeal books, the appellant's solicitors filed a schedule of extracts from the electronic records of interview (the Schedule). However, the Schedule was not included in the appeal books. At no stage before or during the hearing of the appeal did the appellant make any application to rely on the Schedule. Its existence but not its content was brought to the notice of the coram at the hearing. The content of the Schedule insofar as it relates to the co-accused Broadbent and Kosick is reproduced in an annexure to these reasons. Kosick's statements in the Schedule go well beyond those relied on by the appellant below. Although no application was made at the hearing of the appeal to rely on the Schedule, I have had regard to the Kosick and Broadbent extracts.

16 Finally, there is material in a statement of proposed prosecution witness Kay-Marie Kosick of 21 March 2013 which is admissible in the State case against the appellant and which may tend to support some aspects of the accounts given by Damien Kosick and Broadbent. The State's case is that on the night of the murder, the accused left from Mrs Kosick's house and returned there the following morning. She says:

Page 4: Gary always portrayed himself as some kind of gangster hit man.

Page 28 - 29: Then Gary came in. I could see he had something on his side. He came up to me and I saw it was a gun. He pushed it hard into my left side and said, 'If you don't comply with what I ask you to do, I will sit and watch my kids get murdered one by one'.

Page 30: I heard Gary say 'You'd better shut your mouth or you'll be dead like Dave'.

Page 36: Gary told me to keep my mouth shut. He said that every time I saw him.

17 Based on all of the material, including that of Kosick and Broadbent in the Schedule, the statements of the co-accused that are inadmissible in the case against the appellant can be categorised as follows:

1. statements relating to the appellant's participation in the offence;
2. statements suggesting that Kosick participated in the events involving and surrounding the death of the deceased under duress from the appellant;
3. statements, express and implied, to the effect that because of things the appellant had said and done and his propensity for violence, Kosick and Broadbent were afraid to speak candidly to police because they were very fearful that the appellant would kill them and/or members of their families.

18 The accused are properly joined in the indictment under cl 7(4)(a) of sch 1 of the CPA. Under cl 9(2) of sch 1, all of the accused must be tried together unless a court orders otherwise under s 133 of the CPA.

19 King CJ in R v Glover (1987) 46 SASR 310 explained the rationale for a joint trial in these circumstances:

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 (312).

20 Thus there is a presumption, which is not easily displaced, in favour of a joint trial when two or more accused are charged for the same offence: The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 [30]; Russell v The State of Western Australia [2011] WASCA 246 [420].

21 Before the discretion in s 133(4) of the CPA to order a separate trial is enlivened, the court must be satisfied, on reasonable grounds, that an accused is likely to be prejudiced in the trial of an indictment because it also charges one or more other accused. If the discretion is enlivened, the overriding question in exercising the discretion is whether a separate trial is required to ensure that the accused receives a fair trial: The State of Western Australia v Micalizzi [2010] WASCA 147 [23] - [24]; Kalani v The State of Western Australia [2013] WASCA 132; Bowen.

22 The prejudice must be unfair or impermissible prejudice: Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [101] - [107].

23 There is a conflict of authority in this court as to whether the policy and other factors underpinning the rationale for joint trials are relevant once the discretion to order joint trials is enlivened. By a majority (Pullin JA, Roberts-Smith JA agreeing) the court in Bowen said that the factors underpinning the rationale are reflected in the enactment of cl 9(2) of sch 1 of the CPA and are not to be taken into account in the exercise of the discretion in s 133 [26]. In Russell, Buss JA, who was in dissent on this point in Bowen, confirmed his view that the factors underpinning the rationale for joint trials are relevant at the stage of the court exercising its discretion under s 133(4) ([343] - [350]). Mazza J (as he then was) agreed with Buss JA on that point [413]. See also Kalani at [26] (Buss JA, Mazza JA agreeing at [97]). It is unnecessary to resolve that conflict for the determination of this appeal.

24 What is clear from the authorities as a whole is that a separate trial of accuseds charged with committing the same offence is, as a matter of fact, exceptional both in this jurisdiction and elsewhere. My research reveals only one case in this jurisdiction in which a joint trial gave rise to a miscarriage of justice and that was in Russell.

25 Buss JA in Russell lists the reasons for his conclusion that the joint trial of the appellant, who was charged with wilful murder, and his co-accused, an accessory after the fact, gave rise to a miscarriage of justice. They include the following: there was highly prejudicial evidence that was not admissible in the State case against the appellant; at the time of its admission the trial judge did not warn or instruct the jury of its limited relevance; the highly prejudicial evidence was adduced by the co-accused in support of her defence of duress which defence should not have been left to the jury, the evidentiary onus not having been satisfied; the appellant's credibility was crucial to his defence; the order of addresses and cross-examination by counsel at trial involved counsel for the appellant addressing after the prosecutor and before counsel for the co-accused and counsel for the appellant cross-examining the State's witnesses before counsel for the co-accused; a significant amount of the highly prejudicial evidence was adduced by counsel for the co-accused asking leading questions; and the trial judge had not identified to the jury all of the prejudicial evidence that was inadmissible in the State case against the appellant. Buss JA's conclusion was based upon the combined force of all of the many matters to which he referred [400].

26 Mazza JA said in Russell that the damaging effect and the volume of the prejudicial (inadmissible) evidence in that case could not be overcome by judicial direction [428]. However, reading Mazza JA's reasons as a whole, it was not solely the volume of prejudicial evidence that informed his conclusion that the joint trial had occasioned a miscarriage of justice.

27 Russell is distinguishable on its facts. The way the trial was conducted had a significant impact on the outcome.

28 The appellant made very few relevant admissions in his electronically recorded interview with police on 28 March 2012. He denied any involvement in the death of the deceased. However, the appellant does not claim that the inadmissible out of court statements may be used to inappropriately buttress a weak prosecution case against him. Although the prosecution case against the appellant is largely circumstantial, it cannot on any view be characterised as weak. It is unnecessary to say anything further on that subject.

29 Further, the State case against Kosick will be that he is untruthful in claiming that he was threatened by the appellant or that he acted under duress or compulsion.

30 At their joint trial the defences of the individual accuseds are likely to be personally exculpatory to the disadvantage of other accuseds and it can be anticipated that the appellant will defend the charge in a similar vein. Moreover, an admission of Mrs Kosick that she had lied to police may be used as a springboard for an attack on the reliability of her evidence, which is inconsistent with some of the statements made by the co-accused. The individual defences will all unfold before the jury which will have little difficulty in understanding the cross-interests in play.

31 It is common in a joint trial that evidence admissible against only one accused is adduced in evidence. Cut-throat defences, claims of duress and compulsion and evidence of bad character (including convictions) are common features of joint trials and do not ordinarily result in impermissible prejudice giving rise to an unfair trial. That is because in the administration of the criminal law it is accepted, unless and until the contrary is demonstrated, that the jury will accept and faithfully apply the trial judge's directions: Gilbert v The Queen (2000) 201 CLR 414 [13]; Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22. The type and timing of the directions foreshadowed by the primary judge (who will also be the trial judge) in this case will neutralise or sufficiently neutralise the risk of any prejudice to the appellant. Directions of that nature are routinely given in this jurisdiction and in my experience are capable of being understood by a jury.

32 The appellant failed to establish that a separate trial is required in order to ensure a fair trial.

And a couple of gunshots went off. I don't want to say who done it, alright.

Q: Okay. Now, it was on tape but, you agree that we had, we've had an interview about the murder of David Blenkinsopp earlier today?

And, um, yeah, well, um, Kym got us safely in the car, and, er, I think he got a few more, um, um, then gone through and started walking down towards the hill ...

A: So, you know what I mean, if he's prepared to fuckin, you know what I mean, get rid of all of us.

A: Just prepared to do it. So I'm not going to argue with someone with a semi-automatic gun, I'm sorry.

Q: So, and the fourth person has, um, basically forced you to drive him, David, to the, er, bushland where you showed us and disposed of the body? And that was done to you at gunpoint? Okay. Dan, is there anything that you'd like to ask?

A: That's in my head, that's the truth of what happened. What I can put it to the best of my knowledge.

A: Me? I, I don't know. I didn't even agree to pick it up in the first place but he [w]anted to get his baby and fuckin show it off or, or what, or whatever, at first.

Q: So if there was talk of a murder at your wife's house, then why did you get in the car and go looking for David? Surely you must have ...

A: Because I've got a person sitting in my driveway with an unlocked car with a fuckin semi-automatic gun. They could walk in. My kid's asleep on the fuckin back, um back outside watching TV. He could have walked in and gunned any of us down

And um yeah and fuckin Tamara was grabbed and it was just Kym helped get Tamara in the fuckin car ...

Um, fuckin Kym fighting it out and then came I didn't see the you know I knew it w[a]s there and it's bang bang you know

Up the up the road up um up the slip road. I drove nervously I was like you know Gary saying you know what the fuck you know. It was just like 'drive, drive the car. I don't give a fuck, see cops whatever' and he was like 'I'll fuckin shoot them fuckin dead' you know 'Youse cunts talk you're fuckin dead' ... 'you should have whacked him you know what I mean'

As I said before you know I sort of gave in to go to his house you know ...

Do you know what I mean it's just so you know what I mean you've got other dudes to suss them out ...

Q: I understand that. The person you're concerned about is in custody. He's with police at the moment.

I want to go somewhere else to the toilet or another room where you can't hear anything

We were on the piss and on the drugs and that. I'd gone out earlier with Gary ...

Q: That's fine. Um so you and Gary were just talking about stuff? ...

That was not even discussed. We had the yeah we had the gun in the vehicle

Q: Yes unless there are other things but no that's um

Q: Well that's something we can talk about a bit later. Um personally I think that's a very good thing that you did tell us about that. Um to me

Tamara was talking about um another day that Blenkinsopp and - Gary once he drinks um he becomes more aggressive and more violent and you know I'll put a you know I'll fuckin get rid of him

And where I was that's where I was right but until I went up to um up to there no that was planned between her and Gary

Um Gary was pretty well just telling you know how he was going to waste him ...

None no that's what he usually wears did you find it?

And Gary loads the gun up and just I don't know how many shots how many shots did you find through the head?

Hang on I don't. Gary told me to burn so I, I set the first fire and burnt the um seat covers and that off ...

You know Gary was going off. I wanted him gone and then once they took off you know I had I was stuck with him and I had the fuckin threats ...