CRIMINAL LAW - Pre-trial application - co-accused - application for separate trials - opposed by the Crown - sexual assault matters relating only to one co-accused - unfair prejudice

R v Demirok [1976] VicRp 19; [1976] VR 244

Hoyle v The Queen [2018] ACTCA 42

SCC 164 of 2018; SCC 165 of 2018; SCC 166 of 2018; SCC 184 of 2018

1. This matter involves the joint trial of Mr Damien Featherstone and Mr Rodney Bloxsome. They face an indictment containing 18 counts although each count does not allege a joint offence. An analysis of the indictment reveals that Mr Featherstone is the sole accused in four of the counts. Mr Bloxsome is the sole accused in six of the counts. The two accused are jointly charged in one count. There are four counts in which the two accused are jointly charged but also with a third person, NQ. There are two counts in which Mr Featherstone is jointly charged with NQ, but without Mr Bloxsome.

2. It was pointed out however that NQ has entered pleas of guilty concerning their involvement and is to be a witness for the Crown. I was also told that Mr Featherstone has indicated a willingness to admit some of the charges against him, although it is not entirely clear which charges. He will still face trial on serious allegations. There will no doubt be a fresh indictment.

3. By an application dated 7 March 2019 Mr Featherstone has applied for orders which would entitle him to a separate trial in respect of some of the counts. Primarily however he wishes to have his trial heard entirely on its own. In this case he would be entitled to elect to be tried by a judge alone. This option would be denied to him in a joint trial, in particular because the joint trial will involve sexual offences for which a judge alone trial is not available.

4. The Crown opposes the application pointing out that the onus is on the applicant to establish the entitlement to have a separate trial or for the indictment to be severed. The Crown says, notwithstanding that each accused may face separate charges the background to the offences are derived from a "common factual matrix" so that to have a severance or separate trials would result in a factual confusion in which relevant parts of the alleged activities of the accused, if excluded, would not allow the Crown to present a complete case capable of being understood by a tribunal of fact.

5. It is important to note that the factual scenario described by the Crown in its written submissions is accepted as being an accurate summary of the alleged facts, remembering of course that neither accused concedes their individual involvement.

6. The Crown referred me to the Victorian case of R v Demirok [1976] VicRp 19; [1976] VR 244 in which the following statement of principle appears:

The matters of public interest which must be considered on this case, as all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matter in many cases will not be of very great weight, in others they may assume real significance. Secondly, it is against the interest of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice is so required. Fourthly, the convenience of the witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason, witnesses should not be required to give evidence of the same events at a succession of trials.

7. The main thrust of the applicant's submissions is that he will face unfair prejudice if a jury hears evidence concerning matters in which he was not involved. He is concerned, understandably, that the crimes of the other offenders will, in effect, rub off on him. He particularly points out that none of the sexual offences concern him but yet he will be exposed to a factual scenario in which sexual misconduct plays a significant part. He has not been charged with any sexual offence and, he says, he should not be tarred by the evidence against the other accused. He points out that some of the facts surrounding the sexual offences, such as the insertion of a shotgun barrel into a woman's vagina, are so emotive that a jury is likely to be influenced by any person involved in the whole of the background facts.

8. The Crown response is that the offending of both of the accused can only be properly understood within the overall circumstances of what occurred. In relation to the sexual offences the Crown says that the prejudice has been exaggerated. The Crown points out that "although undoubtedly serious, there is nothing particularly gruesome or horrific about the rape allegations". This is a somewhat surprising statement. Every victim of rape, no matter what the individual facts, has faced an horrific experience.

9. The Crown then goes on to say, in what I consider a much more persuasive point, that "the portions of the evidence that relate only to the six counts concerning Mr Bloxsome are, in the scheme of the whole case, relatively small and straightforward. A jury will have no difficulty in being able to identity with precision which points of the evidence are not admissible against the accused Mr Featherstone".

10. Further, says the Crown, a jury will receive directions which will cure any possible prejudice to Mr Featherstone. I was referred to the decision of the Court of Appeal in Hoyle v The Queen [2018] ACTCA 42 where the Court stated, at [125]:

It is mere speculation that the evidence of more serious sexual misconduct towards TL was unfairly prejudicial because the jury may have accorded disproportionate weight to it or been emotionally affected by it. Modern life is confronting. Juries are robust. There is no good reason to think that jurors would be so scandalised by the allegations relating to TL that they would be incapable of dispassionately determining the charges concerning the other complainants.

11. In relation to Mr Featherstone's desire for a judge alone trial the Crown points out that a jury trial is essentially a default position which over the years, and traditionally, has been regarded as the best means to provide an accused person with a fair trial.

12. The attitude taken on behalf of Mr Bloxsome is that he does not wish individual counts to be separated. He says that there should either be an entirely separate trial or a trial of both accused in respect of all of the charges. He says that a separate trial on only some of the counts would prevent him from putting forward his defence and he would necessarily, by cross-examination, need to bring in the whole of the context of the alleged offending which includes the involvement of Mr Featherstone.

13. I think this case is close to the edge of requiring a separate trial. However I do not think it quite gets over the mark, in particular when one considers the capacity of directions to instruct a jury in respect of the involvement of different accused in different counts. As conceded by the Crown there will be a measure of prejudice to the accused but it is not so great that it necessitates a separate trial.

(a) The application dated 7 March 2019, is dismissed.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.