1 I have had the advantage of reading in draft form the judgment of Cox J, and I agree with and adopt his Honour's statement of the primary facts; though I shall be referring further to the evidence in the course of these reasons. The appellant's principal contention is that the learned trial judge erred in the exercise of his discretion in refusing to grant the appellant a separate trial. Section 363 of the Criminal Code provides in substance that where persons are jointly charged in an indictment the judge may at any time during the trial, on the application of any of the accused persons, direct a separate trial. There is no right of appeal as such against the exercise of a judge's discretion in refusing such an application, and therefore a complaint that the discretion was wrongly exercised is ordinarily tested after the trial is over, and is subsumed within the court's power under s402 of the Code to set aside a verdict on the ground of a miscarriage of justice - Sproule v The Queen CCA 51/1962. See also The Queen v Harbach (1973) 6 SASR 427 at 433; R v Beavan (1952) 69 WN (NSW) 140; R v Kerekes (1953) 70 WN (NSW) 102.

2 If the trial judge fails, in effect, to exercise his discretion at all (R v Callaghan and Thomas [1966] VicRp 4; (1966) VR 17), or does not exercise it upon proper principles or fails to take into account all material matters, no doubt the court would be likely to hold that there had been a miscarriage of justice; although it might in Tasmania, under s402(2), dismiss the appeal if it considered that no substantial miscarriage of justice had actually occurred - cf R v Demirok [1976] VicRp 19; (1976) VR 244 at 251; Carter, Criminal Law of Queensland, 2nd ed, 474. A court of appeal will not regard the trial judge's discretion as having been erroneously exercised because its members or any of them would have decided the question otherwise. In The Queen v Moghal (1977) 65 Cr App R 56, a man and a woman were jointly charged with murder, but separate trials were ordered. The woman was tried first and acquitted. Then the man was tried, and convicted. He appealed on the ground that separate trials should not have been ordered. The Court of Criminal Appeal said that none of its three members would have ordered separate trials, but held nevertheless there was no sufficient ground for setting the verdict aside.

3 Since s363 of the Code permits the judge to order a separate trial "at any time during the trial" of the persons jointly charged, application therefor cannot be made until after it commences. However, even if an order is sought but refused in the first instance, that provision makes it clear that if it appears during the proceedings that a separate trial has become appropriate in the interests of justice, the trial judge has the power upon the application of any of the accused persons to direct accordingly - see Sproule v The Queen (supra). The position is the same in the non-Code States of Australia - R v Demirok (supra); R v Gibb and McKenzie [1983] VicRp 78; (1983) 2 VR 155.

4 The law lays down a number of rules for the guidance of a trial judge required to exercise a discretion whether or not to order a separate trial. The first is that where the case against the accused persons alleges that they were engaged on a joint or common enterprise, prima facie they should be jointly tried - Rex v Grondkowski, Rex v Malinowski (1945-46) 31 Cr App R 369; Reg v Beavan (supra) at 140; R v Kerekes (supra); R v Kray (1970) 1 QB 125; Sproule v The Queen (supra); Carter, op.cit, 474. However, the case of alleged joint or common enterprise is not the only indication that prima facie there should be a joint trial; though it is always an important factor - R v Palmer & Ors (1969) 2 NSWR 13 at 16; R v Assim (1966) 2 All ER 881, at 886 - 887; R v Harbach (supra) at 432.

5 In Moghal v The Queen (supra) the Court of Criminal Appeal went so far as to say, "We think that only in very exceptional cases is it wise to order separate trials when two or more are jointly charged with participation in one criminal offence" (supra) at 62; but the relevant general proposition is more comprehensively stated in R v Assim (supra), where the Court of Criminal Appeal said:

"Where ... the matters which constitute the individual offences of the several offenders are on the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases." (supra) at 887

6 The court illustrated the rule further by saying:

"Again, while the court has in mind the classes of case that have been particularly the subject of discussion before it, such as incidents which, irrespective of their appearing on a joint charge in the indictment, are contemporaneous (as where there has been something in the nature of an affray), or successive (as in protection racket cases), or linked in a similar manner as where two persons individually in the course of the same trial commit perjury as regards the same or a closely connected fact, the court does not intend the operation of the rule to be restricted so as to apply only to such cases as have been discussed before it."

This statement was adopted and followed by Lee J in R v Palmer & Ors (supra).

7 The Court of Criminal Appeal in England in a number of recent cases has emphasised the strength of the prima facie rule, and the reasons for it, that persons jointly indicted should be tried jointly. The learned editors of the 41st ed of Archbold state the matter thus:

"It has been accepted for a very long time in English practice that there are powerful public reasons why joint offences should be tried jointly. The importance is not merely the saving of time and money. It also affects the desirability that the same verdict and the same treatment shall be returned against all those concerned in the same offence. If joint offences were widely to be tried as separate offences, all sorts of inconsistencies might arise. Accordingly it is accepted practice that a joint offence can properly be tried jointly even though this will involve inadmissible evidence being given before the jury and the possible prejudice which may result from that."

8 Some English cases which support that proposition are: _Moghal'_s case (supra); R v Lake (1977) 64 Cr App R 172 at 175 (CA): R v Josephs & Christie (1977) 65 Cr App R 253 at 255 (CA); R v Hoggins, Bricknell and Philip (1967) 51 Cr App R 444 (CA); and R v Buggy (1961) 45 Cr App R 298.

9 Similar views have been expressed in Australian and New Zealand cases also; for example, Reg v Beavan (supra); R v Demirok (supra); R v Ditroia and Tucci [1981] VicRp 28; (1981) VR 247; R v Gibb and McKenzie (supra); R v Harbach (supra); The Queen v Iremonger, Kinley and Powell (1964) NZLR 517; and R v Kerekes (supra).

10 The advantages in the public interest of persons jointly indicted being tried jointly are variously stated, but they have a common theme. This is, that it is highly desirable that one jury should be able to see and hear together in the same trial all the principal persons involved, so as to obtain an overview of the evidence as a whole and of the persons. See, for example, Rex v Grondkowski (supra); Hoggins' case (supra); R v Lake (supra); Moghal v The Queen (supra); R v Assim (supra); and R v Josephs & Christie (supra) - all English cases; in Australia and New Zealand, Reg v Beavan (supra); Palmer's case (supra); R v Harbach (supra); R v Demirok (supra); R v Gibb and McKenzie (supra); R v Ditroia and Tucci (supra); R v Kerekes (supra); and _Iremonger'_s case (supra) and see Joint Trials - The Problem of Reciprocal Blame by Mark Weinberg (1984) Crim.LJ 197. Undoubtedly an important consideration in the practice thus described is the view that it is not in the interests of justice that parties jointly indicted should, by being tried separately, have the opportunity thrown open to each to try to exculpate himself by throwing blame on the other or others in their absence.

11 It is often said that a sound reason for trying alleged joint offenders jointly is that the risk of inconsistent verdicts being returned by different juries should be avoided, or as far as possible, minimised - see the above citation from Archbold; R v Demirok (supra) at 254; R v Gibb and McKenzie (supra) at 163; R v Ditroia and Tucci (supra) at 258. A caveat should be offered about this reason, however, in that a jury in a joint trial, properly instructed as to the admissibility of evidence against the several accused, and applying that instruction, might well return inconsistent verdicts. This point was made in the reasoning of the High Court of Australia in The Queen v Darby [1982] HCA 32; (1982) 148 CLR 668, which was concerned with conspiracy. However, Weinberg is probably right in saying that inconsistent verdicts in a joint trial are unlikely (supra) at 214. In the present case, for example, if the jury had acquitted the appellant they would probably have produced consistent verdicts by acquitting his wife also; which if it had occurred would not have been exceptionable.

12 A separate trial of course is not always in the interests of all accused. A joint trial may be preferred, as in the case of one co-accused who claims to have been subject to duress or under the influence of another - Rex v Crondkowski (supra); Reg v Palmer (supra) at 16, 27; Reg v Beavan (supra) at 142 . In the case under review, the appellant's wife, who was indicted and tried jointly with him for murder, might have claimed that a separate trial would have been a disadvantage to her, but in fact she did not oppose her husband's application, nor make any application herself for a separate trial. Separate trials, also, do not always solve for those charged the difficulties inherent in trying participants in jointly committed crimes. For example, in a case which attracts public notoriety, it is probably unlikely that a later jury will be unaware of the result of an earlier trial - cf Moghal's case (supra). In relation to the present appeal, complications of this kind would have been a likely result of separate trials.

13 The prima facie rule, that persons jointly charged should be tried together, is always subject to the proviso that no accused should be thereby deprived of his right to a fair trial; but possible prejudice arising from the presentation of evidence admissible against one but not another or others does not necessarily put a fair trial at risk. In Youth v The King (1945) WN 27, the appellant and his wife were jointly tried for murder and found guilty. Part of the evidence against the wife was a statement in writing made out of court by her to the police. It was tendered in evidence against her, but was inadmissible against the husband. The Judicial Committee of the Privy Council said in the course of their reasons:

"In the present case it was said that the admission of the statement must necessarily have so influenced the mind of the jury that the appellant had been deprived of the substance of a fair trial. ... 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 in 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 admissible." (ibid) at 27

14 The foregoing statement usefully encapsulates two guiding propositions. The first is that in a joint trial where evidence inadmissible against one accused is tendered against another, the law requires the trial judge to point out clearly and explicitly to the jury the inadmissible evidence, and how it may and may not be taken into account. Unless the trial judge performs that duty a miscarriage of justice is almost automatic. The other is that, provided the trial judge's instructions to put aside inadmissible evidence where necessary is reasonably capable of performance, a jury is to be trusted to carry out that obligation. If that were not so it would be a serious objection against the trustworthiness of the jury system as a whole. Cases which exemplify the rule are R v Palmer (supra) at 13, 20, 25; Reg v Beavan (supra) at 141, 142, 143; R v Harbach (supra) at 433; Moghal v The Queen (supra) at 60; and R v Ditroia and Tucci (supra) at 256. It should be observed, though, that where a jury is instructed not to take into account against one accused evidence not admissible against him, though properly tendered against another, it is not necessary that it should put the inadmissible evidence out of mind entirely. That may be virtually impossible, but what the jury is expected to do is to leave that evidence out of account when considering the case against the accused to whom it is not applicable.

15 The reported cases show that it has very frequently been held that a joint trial was fair to all accused even though a great deal of evidence was tendered which was inadmissible against one or other of them. Many of the abovementioned authorities fall into this category. R v Harbach (supra) was one such, and there the Court of Criminal Appeal (Bray CJ, Mitchell and Sangster JJ) said this:

"It can be asked, when would a court of appeal interfere on the grounds that separate trials should have been ordered if it will not interfere when a mass of material inadmissible against one of the accused is before the jury on the joint trial. We do not say that there may not be cases where the amount of such material is so great or its effect so damaging as to compel appellate intervention." (ibid) at 434, 435

16 But in fact, cases are rare in which an appellate court has interfered on such a ground. Of these few, R v Demirok (supra), and R v Gibb and McKenzie (supra) are examples. In Demirok's case, a Court of Criminal Appeal in Victoria came to the conclusion that, as the trial had worked out there had been such an unusual combination of circumstances that a miscarriage of justice had occurred, notwithstanding that the trial judge had properly exercised his discretion initially in ordering a joint trial. In R v Gibb and McKenzie, there was a similar result, this time because the appellate court discerned that the jury had been required to perform "remarkable mental feats" which it had not been reasonable to expect of them.

17 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?

(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?

18 These were and are relevant questions in the present case. As a mental exercise, it was quite possible and feasible in my view for the jury when considering the case against Maxwell Leaman to leave out of account his wife's story as to how the body of the deceased came to be buried where it was found. The learned trial judge gave the jury clear, concise and repeatedly emphasised instructions as to what evidence they should disregard as against the appellant, to the extent that no criticism can be made of his performance of that duty. The jury was also given all the instructions appropriate and necessary for a case which consisted mainly of circumstantial evidence. It was submitted to us on behalf of the appellant that the evidence properly admissible against him was insufficient to support a safe and satisfactory verdict of guilty, but I do not agree. In my opinion the admissible evidence was amply sufficient for this purpose. The jury heard the appellant's sworn evidence supporting his story of finding that Pauline Glover had committed suicide, and on the evidence overall there was ample reason for their rejecting it as untrue.

19 If Larain Leaman had given evidence on oath and been subject to cross-examination by counsel for her husband, there could have been no basis for criticism that a joint trial was other than proper and fair, or that the trial judge erroneously exercised his discretion to refuse a separate trial to the appellant. It would be a strange result if the fact that she elected to make an unsworn statement, which of course was from the beginning a possibility, makes the difference between a fair and unfair trial for the appellant. In my opinion it does not. The jury, it is true, knew what her story was from the evidence of her statements to the police and her unsworn statement made at the trial, and undoubtedly this fact had potential for influencing their minds against acceptance of the suicide account given by the appellant, if they allowed it to do so. But as against that, they knew that Larain Leaman had the opportunity of giving evidence on oath, but had chosen not to, and therefore not to be cross-examined. They knew also that she had a motive which might have been very strong for reporting to the police a murder allegedly committed by her husband 16 years before, at the time his de facto wife and her then rival had disappeared; namely that she was afraid her husband was about to leave her for another woman.

20 The conclusion was fairly obvious that Larain Leaman was a woman strong and determined enough, on her own showing, to live with whatever it was had occurred 16 years before, and then to report her husband to the police when she was strongly enough motivated against him to do so. It is true that her later account to the police contained much graphic detail, but her false account years before also showed inventiveness and ability to create verisimilitude. It was not difficult to infer that she was just as capable as her husband of concocting on the later occasion a false story to explain the burial of Pauline Glover's body. They did not have the opportunity of assessing her sworn evidence and seeing and hearing her under cross-examination, because she chose to avoid that. The jury, therefore, had no substantial reason to believe or disbelieve Larain Leaman's account when considering first the case against the appellant. They did, however, have that opportunity with Maxwell Leaman, who gave sworn evidence. He was cross-examined fully upon it. The jury had every opportunity of assessing his evidence on its own merits or demerits, but without being left in the informational vacuum which would have resulted if she and her story had been absent. Once they had considered the appellant's evidence and rejected it as untrue, then the case against Gail Leaman, when they came to consider that, was considerably stronger because her husband gave sworn evidence.

21 Was it unreasonable to expect the jury to leave in a state of suspense the question of the truth or otherwise of Gail Leaman's account while they considered the case against the appellant? I do not think so. They could not reasonably have been expected to put her account out of their minds as though they had not heard it, nor should they have been. What they were instructed to do, in substance, was to suspend any judgment on the case against his wife while they considered first the case against him. It was not an easy exercise, but it was quite capable of being done, and it was right to trust the jury to do it. If separate trials had been ordered, it could have been expected that each would be tried in the absence of the other person and the other person's account. That would have been likely to produce two lopsided and truncated sets of proceedings; rather like producing two performances of Troilus and Cressida, one without him, and one without her. I think that a joint trial was the right course. There has been no miscarriage of justice, and the result of the trial should not be disturbed.

22 The appellant and his present wife, Gail Larain Leaman, were jointly indicted for the murder on the 23 May 1969 of one Pauline Glover, a woman who had for several years prior thereto lived in Hobart with the appellant as his wife and who was the mother of several of his children. The Crown case was that the appellant had murdered the victim by striking her with a shovel or other instrument and burying her alive and that Gail Leaman had aided or abetted him to commit that murder. An application by him for separate trials made at the commencement of the joint trial was refused by the learned trial judge. The jury returned a verdict of guilty of murder against the appellant and one of not guilty of murder, but guilty of being accessory after the fact to murder, against Gail Leaman. His principal ground of complaint is that there has been a miscarriage of justice by reason of the failure of the learned trial judge to order that there be separate trials.

23 The co-accused, Gail Leaman, then aged about 18 years and his junior by about 12 years, had commenced a relationship with him in February 1969 and had lived for a short time with him in Launceston leaving Mrs. Glover behind at the Hobart address she had occupied with the appellant. As at the 23 May 1969 all three, together with several of the children of the appellant and Mrs Glover, were in residence at a house at New Town. On the 27 and 28 May 1969 respectively the appellant and Gail Leaman each made written statements to police officers to the effect that at about 11 pm on the night of the 23 May 1969 Mrs. Glover had left the house and had not been seen since. No-one ever saw Mrs. Glover alive after that date. Thereafter the two co-accused lived together as man and wife, had children, and married in 1975. It was common ground that in January 1986 police excavated an area of land at a mutton bird rookery at Clifton Beach and there discovered the skeleton of Mrs Clover.

24 When confronted by police with the fact of this discovery, the appellant in a signed record of interview admitted burying Mrs Glover on the night she was said to have gone missing in the presence of and with some assistance from the co-accused, but he denied that either of them had caused her death. This he claimed had occurred by way of suicide effected by Mrs Glover while he and Gail Leaman had been absent from the house in the early evening of the 23 May 1969. On their return they had found Mrs Glover's dead body hanging by a thin nylon rope from a piece of wood lying across the opening of a manhole in a passage of the residence. The reason advanced by him for Mrs Glover taking her life was distress caused by the assertion to her by Gail Leaman that the latter was expecting a child by the appellant. He claimed to have got the body down, in the course of which it fell on the floor, and that he and Gail Leaman had taken it to Clifton Beach in a car which he had coincidentally hired earlier that day to enable them to visit a drive-in theatre that night and that they had buried it at the beach in a hole which he then dug for that purpose. The body had been dragged from the car to the grave by him and he had fallen over at least twice. In the course of covering the body with soil one of the deceased's arms had been pushed down with a shovel. When invited to offer explanations for various signs of trauma found on the skeleton by the Government pathologist he suggested that these could have been caused by the falls and contact with the shovel which I have mentioned.

25 The Crown case against the appellant was a circumstantial one based on motive, opportunity, the falsity of his report of Mrs. Glover's disappearance to the police, the falsity of parts of the suicide story (eg the Crown produced evidence indicating that there had never been a manhole in the passage in question), the pathologist's evidence of trauma to the body consistent with blows being struck with considerable force and generally the allegedly untenable nature of the suicide version.

26 The Crown case against Gail Leaman differed intrinsically in character from that against the appellant in that it rested primarily upon her own statements to the police that she had accompanied the appellant and Mrs. Glover who was still alive and uninjured to Clifton Beach and had there seen the appellant strike the deceased with considerable force over the head and thereafter bury her while she was still alive. In addition there was a verbal statement when she had initially informed on the applicant that "We did a murder" There was clearly a case to answer on the count of murder, but having regard to her age at the time and the circumstances in which she said the deed occurred' it is not surprising that the jury acquitted her of murder but convicted her of being an accessory after the fact in view of her deliberate participation in the deception of the police as to the victim's disappearance.

27 It is at once apparent that on a joint trial it was inevitable that the jury would hear the accusations of Gail Leaman which directly implicated the appellant as the principal culprit. Evidence of such accusations was admissible against her, but clearly inadmissible against him. Having regard to the nature of the case against each, evidence of such accusations was damaging to the appellant because they directly contradicted the innocent suicide hypothesis which was advanced by him and which far from merely transferring the blame from him to the co-accused as is so often the case actually exculpated them both. Furthermore, as it happened, at the trial the co-accused maintained the substance of her out of court statements in an unsworn statement from the dock. That too was inadmissible against him but was even more damaging to him. Whereas the out of court statements might have been explained as the angry accusation in the heat of the moment of a woman scorned, they were repeated by her to the jury as a considered response to the very serious charge levelled against her, notwithstanding that they re-affirmed the principal evidence on that charge admissible against her and constituted an unequivocal admission of guilt as an accessory after the fact to the serious crime of murder.

28 A consideration of the case law on the subject of applications for separate trials establishes two basic propositions which have recently been re-stated by this Court in the unreported judgment of Unsworth v The Queen, CCA A63/1986, where Underwood J said on behalf of the Court at 8 - 9:

"It is well established that where the crime is one in which the Crown alleges a common purpose in two persons to commit a crime, prima facie, they should be tried together; R v Grondkowski (1946) KB 369; R v Sproule CCA 51/1962. It is equally well established that, if the trial judge in refusing to order separate trials, exercised his discretion in accordance with proper principles this court will not interfere unless it can be shown from events that occurred during the course of the hearing the refusal to order separate trials resulted in a miscarriage of justice; R v Demirok [1976] VicRp 19; (1976) V R 244; R v Kerekes (1953) 70 WN (NSW) 102; R v Gibb and Mackenzie [1983] VicRp 78; (1983) 2 VR 155; Murray and Manton v The Queen (1980) 2 A Crim R 418."

29 A third proposition, however, is equally clear from the cases and was stated thus by Lord Goddard C.J. in _Grondkowski'_s case (supra) at 372:

"The law is, and always has been, that this is a matter of discretion for the judge at the trial. ... The discretion, no doubt, must be exercised judicially, that is, not capriciously. The judge must consider the interests of justice as well as the interests of the prisoners. ... If once it were taken as settled that every time it appears that one prisoner as part of his defence means to attack another, a separate trial must be ordered, it is obvious there is no room for discretion and a rule of law is substituted for it."

30 Thus it is wrong to assume that some extraordinary consideration must be shown to exist before there can be a departure from the usual practice of ordering joint trials. It must be a matter in every case of considering the competing interests of justice to the community at large and of the accused and each of them and after giving due weight to each of those interests determining the course to be adopted. The degree of prejudice to the accused flowing from a joint trial will vary in each case. In some cases it will be so slight that there is no risk of injustice in conducting a joint trial. In others it may be so great that separate trials will be necessitated.

31 In the present case the learned trial judge was asked to exercise his discretion to order a separate trial, primarily because of the status of the two accused as husband and wife. It was submitted that the protection given them by the Evidence Act 1910 would somehow be lost to them if a joint trial proceeded. Counsel for the Crown on the other hand argued that if separate trials proceeded there was some risk that the spouse not the subject of the first trial could be called as a witness for the defence thereat and procure immunity from prosecution thereafter, pursuant to s87 of that Act. With respect I consider there is little merit in either contention and no specific set of circumstances in which such provisions might be relevant was foreshadowed at that initial stage of the trial, nor can now be seen to have developed during the trial. Concentration on these provisions tended to distract from the crucial issue which was not really articulated, namely that the prejudice to the appellant by the admission on a joint trial of the co-accused's out of court statements might be so great that, no matter how emphatically the learned trial judge told the jury to ignore them in assessing the case against the appellant, the jury might not be able to eradicate them from their minds and, further, that this prejudice might be compounded if the co-accused repeated the accusations in the form of an unsworn statement.

32 It should first be observed that the learned trial judge had no means of anticipating what defences the accused might resort to nor of predicting the manner in which they might be presented. For all he knew the appellant might have abandoned the suicide story as one told to the police in order to protect Mrs. Leaman who had committed the murder and whom he had helped in its concealment. Equally the co-accused might have resiled from her statements to the police that the appellant had murdered the deceased and have claimed with him that they had merely concealed a suicide. The learned trial judge had no way of knowing whether either or both would give evidence, stay silent or make an unsworn statement. All he could reasonably anticipate was that the co-accused's out of court statements to the police if shown to be voluntary would be received in evidence in the case against her, necessitating in consequence a clear direction that they should be ignored by the jury in considering the case against the appellant.

33 As I have said, the domestic circumstances in which, on the evidence, those statements came to be made were such that the jury, even without the required admonition from the judge, might well have regarded them as unreliable in any event. However, given in addition the learned trial judge's explanation why the law regards such hearsay as having no probative weight and his direction that the jury should accordingly ignore it, I see no reason to suppose the jury could not, and did not, put it out of their minds as in any way part of the ammunition used in the case against the appellant. As an intellectual exercise, had the matter stopped there, it would not have been an insuperable feat to ignore those statements in considering the strength of the purely circumstantial Crown case against the appellant. It cannot therefore be said in my respectful view that his Honour in any way erred in the exercise of his discretion. For this court to intervene it must be established that in the events which happened after his Honour ruled against separate trials, the appellant has suffered a prejudice amounting to a miscarriage of justice. If that be so, the Court has jurisdiction under s402 of the Code to set aside the verdict .

34 What did happen was that the appellant gave sworn evidence adhering to the suicide story previously told to the police, thereby enabling the jury to make their own assessment of him, while the co-accused gave an unsworn statement in which she adhered in substance to the accusations she had previously made against him to the police. This statement was reduced to writing, read in person by the co-accused and then tendered as an exhibit. The unsworn statement did not really add anything to what the jury knew on the Crown case against her she had already told the police, but being made at her trial for murder some months after her disclosures to the police it was obviously a much more considered one than her original statements which could well have been prompted by passing anger or spite. The fact that she maintained her original accusations on her trial, when it might have been thought in her own best interests to espouse her husband's version, especially if it were true, must have given her unsworn statement a greater solemnity and have made those accusations much more compelling.

35 Another matter which in my view would have been difficult to eradicate from the jury's minds was the knowledge that the only available eye witness to the events described by the appellant not only did not support his version, but flatly contradicted it. On a separate trial, if called, she may have exercised her right as a spouse not to give evidence at all. The trial judge in such a case would be bound to instruct the jury that no inference adverse to the accused could be drawn from his wife's refusal to testify - Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20 at 22. Deprived of that knowledge and told not to draw adverse inferences from the absence of evidence from the wife, the jury's assessment of the appellant's evidence and of its reasonableness as a hypothesis which explained the facts established on the Crown's circumstantial case might have resulted in my view in a different conclusion.

36 The ability of the jury, in the unusual circumstances of this case, to obey the learned trial judge's direction to put aside when considering the appellant's case this prejudicial material, which was not only admissible but was actually common ground between the Crown and Mrs Leaman in her case, becomes of crucial significance. In Demirok v The Queen (supra) at 22) Barwick CJ said in relation to the adverse inference I have referred to:

"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 direction. The law cannot be administered upon any other basis."

37 Nevertheless, the remaining four members of the Court, while accepting the adequacy of the trial judge's direction, were not satisfied that it would necessarily remove from the jury's mind the improper influence the refusal of an eye witness spouse to give evidence might have created. (See the reasons for judgment of Gibbs J at 31). Other instances where the possibility that miscarriages of justice can occur, notwithstanding the trial judge's directions to a jury, are R v Demirok [1976] VicRp 19; [1976] VR 244; R v Maric (1978) 20 ALR 513; R v Sarek [1982] VicRp 99; [1982] VR 971 and R v Gibb and McKenzie [1983] VicRp 78; [1983] 2 VR 155. In the second and third of these cases the evidence in question had been improperly admitted while in the first and last it had been properly admitted on the trial of a co-accused but was inadmissible on the trial of the appellant. In the last mentioned cases it is for the appellant to show that a miscarriage of justice has occurred, whereas if error is first established it is for the Crown to show that there has been no miscarriage of justice. Another instance of a possible miscarriage of justice notwithstanding a trial judge's directions was adverted to by Brennan J in Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 541 - 542, when considering the joinder of counts constituting a series of offences of a similar character where evidence, though admissible on one count, is not admissible towards proof of guilt on another count. His Honour's views have been endorsed in the recent unreported decision of the High Court in De Jesus v The Queen (12 November 1986).

38 With great respect I am of the view that the unsworn statement, in the exceptional circumstances of this case, was so prejudicial to the appellant that notwithstanding the clear directions of the learned trial judge the jury could not be expected to consider the case against the appellant uninfluenced by it.

39 Of all the hypotheses which could explain the primary facts which might be found by the jury, the Crown sought to persuade them that the only reasonable one was that the appellant had wilfully murdered the deceased and that the version of her suicide and of his involvement only in her burial should be rejected as not a rational inference or conclusion. There was no evidence, direct or indirect, as to how or when any blows were administered to the deceased nor, save for his admission that he used a shovel in the course of burial, was there any evidence of any implement which might be described as the murder weapon. Yet when they retired to consider their verdict against him and had to deliberate as to whether or not there had been a murder at all they were required to shut out of their minds the co-accused's repeated admission against her own interest that the appellant had in fact, murdered the deceased and her graphic and horrifying description of the sequence of blows and other events which led to Mrs. Glover's death. Not only would it have been a very difficult feat in itself to ignore the claims of an eye witness whose circumstantial account was consistent with the pathologist's findings and who on the face of it had little if any reason to lie, but in the course of that same retirement the jury was required to assess her part in the crime she not only admitted but continued to assert, without being liable to cross-examination, had been committed. In my respectful opinion, having regard to the circumstances of this case, in the events which transpired at the trial, the conducting of a joint trial produced a miscarriage of justice insofar as the appellant is concerned and his conviction ought to be quashed.

40 Counsel for the appellant submits that if this Court is of the view that there has been a miscarriage of justice there should not be an order for a re-trial. He submits that a verdict based on the admissible circumstantial evidence would be unsafe and unsatisfactory. I think it is unnecessary and undesirable to traverse all the circumstances in detail. I am quite satisfied that on the whole of the evidence it was reasonably open for the jury to be satisfied beyond reasonable doubt that the deceased was killed by blows of considerable force administered by another person and that the appellant was the person who inflicted them. In my opinion there should be a re-trial.

41 I have had the advantage of reading in draft form, the reasons for judgment of Neasey and Cox JJ. Like Neasey J, I agree with and accept the statement of primary facts set out in the judgment of Cox J.

42 The appellant was jointly indicted with his wife upon one count of murder. The particulars make it clear that the Crown case against the appellant was that it was he who struck the fatal blows and his co-accused who aided and abetted him in the commision of the crime.

43 In this State the authority for the joinder of two accused in a single indictment is s330(1) of the Criminal Code which provides:

(a) to be parties within the meaning of the Code to the same crime (notwithstanding that some other party or parties to that crime is or are not included in the indictment or is or are not amenable to justice); or

(b) to have committed different crimes arising substantially out of the same facts or closely related facts,

may be joined in the same indictment and tried together or separately."

44 The section has its origins in the common law which has long recognised that in cases where it is alleged that two or more accused joined in the commission of an offence such accused may be joined in a single indictment. See R v Atkinson 1 Salk 382; 91 ER 333; R v Benfield and Saunders [1760] EngR 263; 2 Burr 980 at 985[1760] EngR 263; , 97 ER 664 at 667 and R v Trafford [1831] EngR 375; 1 B & Ad 874 at 887[1831] EngR 375; , 109 ER 1011 at 1016 (a joint trial was held to be proper as the individual acts of several accused together resulted in a single public nuisance). The common law position was substantially extended by Act No 13 of 1957 which added the provisions presently set out in ss330(1)(b) and (2).

45 Section 363 of the Code, which gives a trial judge an unfettered discretion to order separate trials, also has its origins in the common law. See Dibble v R. [1908] I Cr App F 155; R v Bradlaugh & Ors [1883] 15 Cox CC 217. The discretion must of course be exercised judicially. Gibbons & Proctor v The Queen [1918] 13 Cr App R 134.

46 The Code makes no provision for an appeal against a refusal to order separate trials and it is now well established that upon an appeal against conviction the appellant must show that the failure to order separate trials resulted in a miscarriage of justice. R v Grondkowski [1946] KB 369; Sproule v The Queen CCA 51/1962; Unsworth v The Queen CCA A63/1986.

47 I respectfully agree with Neasey J, for the reasons expressed by him and on the basis of the authorities he refers to, that prima facie, where the case alleged against accused persons is that they were engaged in a joint or common enterprise they should be tried together. However, I confess to entertaining some doubts with respect to the validity of the claim that a joint trial in the case of an alleged joint or common crime, avoids the risk of inconsistent verdicts. The existence of that risk is asserted without justification in R v Demirok [1976] VicRp 19; [1976] VR 244 at 254 and referred to in R v Gibbs & McKenzie [1983] VicRp 78; [1983] 2 VR 155 in the following passage at 163:

"The interests of justice are not confined to the interests of the accused. It would usually be scandalous and a serious blot on the administration of justice if the ordering of separate trials in such cases resulted in inconsistent verdicts: see R v Demirok, [1976] VicRp 19; (1976) VR 244, at p254 where the other matters of public interest to be considered are also referred to."

48 The validity of this proposition as a factor to be taken into account upon an application for separate trials is examined by Mr Weinberg in his article, Joint Trials - The Problem of Reciprocal Blame [1984] 8 Crim. LJ 197 at 214:

"One should be cautious about the proposition that separate trials may lead to 'inconsistent verdicts'. Assume that it is clear that one or other (if not both) of two accused persons must be guilty of the crime charged. If they are tried separately each may blame the other. Different juries may acquit each of them. The likelihood of this happening in a joint trial is minimal. Yet the decision to acquit both may be entirely justified. It may be no more then a proper application of the incidence of the legal burden of proof at its appropriately high standard. A jury which is satisfied that one or other accused did commit the crime, but which cannot be satisfied that they both did, or which one it was, is bound to bring in verdicts of not guilty. Such verdicts are only 'inconsistent' in the crudest lay terms, and not in any meaningful legal sense."

49 Notwithstanding the somewhat doubtful validity of the claim that separate trials may give rise to inconsistent verdicts, a joint trial in the present case was authorised by the provisions of the Code and prima facie proper having regard to the nature of the Crown case alleged against each of the co-accused. This being so, the question for present determination is whether the joint trial denied the accused a fair trial and resulted in a miscarriage of justice. The appellant claimed it did because the evidence led on the trial of his co-accused and not admissible upon his own trial, was of such a nature that no jury properly instructed could put that evidence out of their consideration when deliberating his guilt or innocence.

50 In most joint trials evidence will be led that is admissible against only one of the accused. It is the duty of the trial judge to instruct the jury what evidence they may or may not take into account when considering the case against each of the accused. This having been done in the present case I agree with Neasey J, when he says:

"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:

(i) will an average jury be reasonably capable, as an intellectual exercise, of performing the task thus given them? and

(ii) 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?"

51 However, it is with regret that I find myself in disagreement with his Honour with respect to the correct answer to that question in this case.

52 The case against the appellant was strong but circumstantial. There was evidence of the false account he and the co-accused together gave the police following the disappearance of the deceased. There was evidence of trauma to the body consistent with the application of several heavy blows. There was evidence of motive and opportunity. The Crown also relied upon the improbability of the suicide version given by the accused in both his out of court statements and his evidence at the trial. Prefacing a direction to the jury with respect to the circumstantial nature of the case against the appellant the learned trial judge said:

"The case against Maxwell Keith Leaman is circumstantial. I have already explained what that means. It means there is no direct evidence that he struck Pauline Glover (the deceased) at all. There is no one who saw it, there is no confession by him that he did it. In order to be satisfied that he did strike Pauline Glover, and caused her death, you would have to draw an inference from other facts - from the fact that he was with her, for example, and from the facts of the injuries themselves. So it is that sort of case which rests upon inference. The standard of proof is still proof beyond reasonable doubt ... but in that sort of case you could not be satisfied beyond reasonable doubt unless the inference of his guilt was the only inference reasonably available on the evidence. (His Honour then referred to the written memorandum). When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypotheses other than the guilt of the accused. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt should be a rational inference, but that it should be the only rational inference that circumstances would enable them to draw."

53 In many joint trials each accused attempts to place the blame on the other, and therefore it can properly be said that one jury should try both in order to get an overview of the evidence. However, here the appellant did not attempt to implicate the co-accused in the commission of any crime at all. On the trial of the appellant there was no evidence of the circumstances surrounding the death of the deceased other than the suicide account given by him and such inferences as they could safely draw from the evidence of trauma to the skeleton. In order to reach a finding of guilt upon the evidence admissible against the appellant, the jury had to reject his account, accept that the deceased met her death by the infliction of violence and that no rational hypothesis was open upon the evidence other than it was the appellant who, with the necessary state of mind, struck the fatal blows.

54 The Crown case against the co-accused was quite different. There was evidence that, believing her husband to be having an affair with another woman, she led police to the body and subsequently made some out of court statements which incriminated both her and the appellant. These statements constituted a graphic and detailed version of how the appellant, seventeen years previously had murdered his de facto wife who was also the mother to his then young children.

55 It would be difficult but not impossible, for a jury not to take into account the out of court statements made by the co-accused when considering the guilt of the appellant. Neither the jury nor the appellant were present when those out of court statements were made. The explanation that it is unfair and unreliable to take into account accusations made against an accused person when neither he nor the jury were present is a concept most fair minded citizens can readily understand and accept. An appropriate direction with respect to the use of out of court statements of co-accused is commonplace in a joint trial.

56 In this case however, the graphic and only "direct account" of the murder of the deceased was in substance repeated by the accused in an unsworn statement. In it she said:

"I was 18 years old when I met Max Leaman. I was pregnant at the time. He is not the father of that child.

Shortly after I met Max Leaman we went to Launceston to live as I have told the Police. I was in love with Max Leaman. We moved back to Hobart from Launceston about four days before the incident in which Pauline was killed. I had not lived with Max in Hobart apart from the brief stay before we moved to Launceston and the few days before Pauline was killed. It was not a relaxed home with Pauline and me living under the same roof with Max. I tried to keep out of Pauline's way as much as possible.

At no time did Max and I discuss any violence or plan to kill Pauline.

On the night of the 23rd May after the children had gone to bed I did have an argument with Pauline. It was not a violent argument. I was upset. I walked out of the house. I don't know what the argument was about. I do know that I did not tell Pauline that I was having Max's baby. I never discussed this with her. I had walked to the end of Swanston Street when Max and Pauline pulled up in a car. Max was driving. The front passenger door was opened and I was asked to get in. There was some mention about taking me home.

Max and Pauline were sitting in the front and I got in beside Pauline. The car had been hired. Max drove taxies in Hobart when I first met him and he usually had a taxi for his own personal use on weekends while we were going out and before we went to Launceston. This was the first weekend we had been back from Launceston and did not have a taxi. I didn't hear any conversation between Max and Pauline about going to the drive-in that night.

I can't now remember any of the conversation in the car as Max drove, if there was any. We went over to the Eastern Shore, my parents lived at Warrane. I was upset still and I really didn't take that much notice of where we were going.

What I said in my statements to the Police in 1986 is correct. There was some discussion about my relatives living out there between Pauline and Max as the car was driven towards Clifton Bluff. I can't remember what I thought but it didn't seem important at the time. I was still upset.

The car stopped near the big pine trees and then Max got out. He didn't say anything, he opened the back door and hit Pauline with something. It was that quick. Nothing was said. I got out of the car as soon as Max hit Pauline. I was sitting close to her.

I have tried to think for the Police as they have asked me many times what was going through my mind at that time. I don't know if I was scared of Max actually attacking me as well or of just being hit because I was sitting there. I really don't know what went through my mind in that short space of time. I was scared. I do know I got out of the car pretty quick as soon as he started to hit her.

Max took Pauline to a spot some way from the car. I followed and he put her in the hole. That's when I knew he was going to kill her. I didn't stop him, I didn't know what to do. I did not help him. I am sure the hole was dug because I first saw the spade when Max bent down to pick it up after he had put Pauline in the hole. There could not have been time for him to dig the hole. I did not help and I can't explain but I didn't run away or tell him to stop even though I didn't want him to kill her. I was afraid and I just didn't know what to do. I was not holding a torch because there wasn't one. I certainly did not want Max to kill anyone and I didn't do anything to encourage or help him in any way.

After he had covered over the body I don't know how long we were there for but we went home and somewhere on the way home he started to talk about reporting it to the Police and what would have to be said.

I went along with the disappearance story. I know I was worried about my parents and what they would think and I know I loved Max. I can't explain now why I went along with the disappearance story but whenever the Police spoke to me in 1969 Max was there as well.

It is no excuse but I was 18, pregnant and naive as I have said to the Police.

I knew I had done wrong and I expected to be dealt with when I reported it to the Police in January this year. I did this because I suspected Max was leaving me. I had been beaten as I have told the Police and I wanted that to stop. I had been drinking when I first reported it to the Police. I was angry. I know I did not say 'we did a murder' I said 'he did a murder' when I first spoke to Constable Jarman. I did help but only by helping tell the false story about her going missing."

57 In the statement made to the police and referred to in the unsworn statement the co-accused added this detail:

"Max got out of the car and he then got into the back seat and he started to hit Pauline in the back of the head with something long and round and it looked like a rolling pin. When he hit her I jumped out of the car. He kept on hitting her in the car. The next thing I remember he was dragging her behind the pine trees, and she said 'what's happening Max what has happened Max' and he said 'you've been in a car accident' and she asked something about the kids and he said they weren't with us. I remember running along behind. Max then threw her in a hole, the hole was already dug. When she went in the hole she was sitting up and he pushed her down and she started to moan and he hit her with the shovel. He only hit her a couple of times and she was still moaning and then he started filling the hole in he just shovelled the dirt in on top of her."

58 The impact on the jury of that only "direct account" of the murder was heightened by the fact that:

(1) Unlike the out of court statements, the unsworn statement was made to the jury in the presence of the appellant by the co-accused (not her counsel) reading it aloud.

(2) During a period of approximately two weeks prior to the making of that statement the jury had had the opportunity of observing the demeanour of the co-accused in the dock. At one stage during his cross examination the appellant denied assaulting the co-accused except "a few times only for her own good". The transcript discloses that an unidentified voice, undoubtedly the co-accused, then said, "well you're a bloody liar Max".

(3) The unsworn statement amounted to a clear confession of guilt to the crime of being an accessory after the fact of murder. This admission against the interest of the maker of the statement gives veracity of the whole of the account which is in effect, a detailed description and the only detailed description, of how the appellant committed the crime with which he is charged.

59 It cannot be denied that such an account, once told by the co-accused from the dock could not be erased from the collective jury mind. The question is whether the jury was reasonably capable, as an intellectual exercise, of performing the task given them by the directions of the learned trial judge. He suggested that the jury consider the case against the appellant first. He gave them directions to the effect that the case against each accused must be separately considered and then said:

"It is vital that you do not reach a verdict using inadmissible evidence. I therefore suggest, and this is not binding on you, but I strongly suggest to you that you consider each case separately and that you consider the case of Maxwell Leaman first. When you come to do so, I would advise you to take out of your folders, or take off the table the unsworn statement of Mrs Leaman (co-accused), her 1969 statement and the two records of interview and put them on the floor, so that you cannot possibly get them mixed up in your consideration of the evidence against Maxwell Leaman. They are not evidence against him, and you should put them out of sight while you are considering your verdict in relation to him. You should also put out of your mind while you are considering your verdict in relation to him the evidence of Constable Jarman and Detective Renshaw as to what Mrs Leaman said to them."

60 No doubt the jury physically put those statements by the co-accused to one side. But, when considering whether the guilt of the appellant was the only rational hypothesis open upon the evidence against him, it would have been impossible for the jury to have eliminated from their deliberations the information contained in those statements; information which in substance had been conveyed to them the previous day from the lips of the co-accused. There was no confessional evidence on the trial of the appellant. Evidence of his guilt was wholly circumstantial. On the trial of the co-accused there was both direct and confessional evidence; the principal thrust of both was to graphically describe the guilt of the appellant. The case was not one of each accused attempting to place the blame on the other.

61 The unsworn statement of the co-accused was given added veracity by its confession to the commission of a serious crime. There was evidence on the trial of both that jealousy over the appellant's association with another woman may well have been the motivation for the co-accused making her various statements. The combination of all these factors made it impossible for the jury to perform the intellectual exercise required of them to confine their consideration of the guilt or innocence of this appellant to the circumstantial evidence.

62 I accordingly conclude that the failure to order separate trials in the very unusual circumstances of this case has resulted in a miscarriage of justice. At the beginning of the trial when the application for the order was made, the learned trial judge was faced with the extremely difficult task of anticipating the possible courses the trial might take and weighing the possible prejudicial effect to the appellant upon the happening of any one of them. The performance of that difficult task was not made any easier by the submissions made to him which did not advert to the crucial matters and which appear to have been based upon matters not relevant to the exercise of this discretion.