CRIMINAL LAW - PROCEDURE - application for separate trial - sexual assault allegations - previous application to sever dismissed - where refusal to sever leads to co-accused unable to elect for trial by judge alone trial - no prejudice in joint trial - application dismissed

Court Procedures Act 2004 (ACT), ss 76, 76(2), 76(3)

Evidence Act 2011 (ACT), s 192A

Supreme Court Act 1933 (ACT), s 68B(1)(d)

The Queen v AI, AD and JR [2013] ACTCA 16

R v Assim [1966] 2 QB 249

The Queen v CHS [2006] VSCA 19; 159 A Crim R 560

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

R v Featherstone; R v Bloxsome [2019] ACTSC 66

R v Fernando [1999] NSWCCA 66

R v GG [2017] ACTSC 12

R v McBride [2007] ACTSC 8

J Purnell SC and J Dempster (Accused - Featherstone)

Sharman Robertson Solicitors (Accused - Featherstone)

1. Mr Damien Featherstone made an application (dated 31 March 2019) to sever from the present indictment Counts 1 and 5. Those are the charges which he is facing to which he will plead not guilty. Count 1 is a count arising from an allegation that Mr Featherstone shot Justin Diaz at a house in Narrabundah. Count 5 is a count of unlawful confinement of a person who I will refer to as the complainant, jointly committed by Mr Featherstone and his co-accused Mr Rodney Bloxsome. There are a total of 15 counts in the indictment that will not be discontinued by the Crown. Mr Featherstone has pleaded guilty to Counts 2, 11, 12, 13, 14 and 15.

2. His co-accused, Mr Bloxsome indicated that he would plead not guilty to counts 3, 4, 5, 6, 7, 8, 9, 10 and 11 but would plead guilty to counts 12, 13 14 and 15. Among the charges to which Mr Bloxsome indicated an intention to plead not guilty were three counts of sexual intercourse without consent (counts 7, 8 and 10).

3. In oral submissions, senior counsel for Mr Featherstone put a proposition which was somewhat different from that articulated in the application in proceeding, namely, that there should be a separate "rape trial". As I understood it, that contemplated a separate trial for Mr Bloxsome on counts 7, 8 and 10.

4. Counsel for Mr Bloxsome made no submissions on the application. The application was opposed by the Crown.

5. An earlier application to sever by Mr Featherstone was made on 7 March 2019. That was heard and determined by Elkaim J on 19 March 2019: see R v Featherstone; R v Bloxsome [2019] ACTSC 66. The reasons for that application were summarised by his Honour as follows:

1. 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.

6. His Honour summarised the arguments put forward by Mr Featherstone as follows:

1. 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 offences 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 shot gun 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.

7. While his Honour considered the matter as being "close to the edge of requiring a separate trial", he declined to order a separate trial and made specific reference to the capacity to give directions to the jury.

8. The grounds of the present application are largely similar to the matters raised before Elkaim J. Some additional matters are said to give rise to a change in circumstances:

(a) that Mr Featherstone has pleaded guilty to counts 14 and 15;

(b) that the prosecution has indicated that it believes that the complainants in the trial are being threatened by associates of the co-accused Mr Bloxsome and, should the Crown receive admissible evidence, that would be adduced at trial;

(c) counsel for Mr Bloxsome has advised that he will be leading "extremely prejudicial evidence" against Mr Featherstone by way of crossexamination; and

(d) counsel for Mr Bloxsome intends to cross-examine one witness about counts 16, 17 and 18 on the indictment (being counts which the Crown is not proceeding on).

9. The nature of the prejudicial evidence was not explained or identified.

10. Counsel for Mr Featherstone emphasised that it was perfectly open to the Crown to run a separate trial in relation to the allegations of sexual intercourse without consent. Those are events alleged to have occurred when Mr Bloxsome was alone with the complainant. He emphasised the prejudice that might be caused to Mr Featherstone by his association with allegations of this nature. He referred to the decision of Burns J in R v GG [2017] ACTSC 12 and the decision of Connolly J in R v McBride [2007] ACTSC 8.

11. Counsel for the Crown pointed to s 76(3) of the Court Procedures Act 2004 (ACT) and submitted that the subsection applied and meant that the ruling previously made by Elkaim J was binding unless "in the opinion of the trial judge it is not in the interests of justice for the order, ruling or direction to remain binding". He indicated that the Crown did not have admissible evidence of threats being made and hence such evidence would not be led.

12. No party made submissions as to how s 76(3) should be interpreted. Section 76(3) refers to an order made under s 76(2), namely, "Any orders, rulings or directions that may be made by the Supreme Court for the purposes of a trial for an indictable offence...". There are two possible interpretations to this. First, it might only apply to those orders, rulings or directions that relate to the manner in which the trial is to be conducted or the evidence to be led. Thus, where it is intended that a pre-trial ruling govern the manner in which the trial is conducted then the provision makes it prima facie binding upon the trial judge. The most obvious example is a pre-trial ruling under s 192A of the Evidence Act 2011 (ACT), which is made by a judge other than the ultimate trial judge. Second, it might apply to any order ruling or direction made during the course of pre-trial proceedings because all such orders are made for the ultimate purpose of having a trial conducted in the Supreme Court.

13. An order such as that refused by Elkaim J is not a pre-trial ruling in the sense referred to in the first interpretation. Although it does influence the nature of the trial to be conducted, it is more in the nature of an application as to whether a trial should be conducted that includes particular allegations. It is more analogous to a stay application than to a pre-trial ruling on evidence.

14. Given the absence of submissions on the scope or operation of s 76, it was not appropriate that I attempt to resolve any issue as to its interpretation. Further, given that I did not attempt to resolve an issue as to its interpretation, it is inappropriate that the outcome of the present application turn upon the interpretation of the section.

15. However, even in the absence of a provision such as s 76(3) it was relevant to take into account the undesirability of allowing parties to make multiple applications relating to the same subject matter before different judges in the hope of achieving a different result.

16. The starting point is that where offences are related by time or other circumstances then the interests of justice are best served by having them tried together. A convenient staring point is the decision in R v Assim [1966] 2 QB 249 (quoted with approval by the New South Wales Court of Criminal Appeal in R v Fernando [1999] NSWCCA 66 at [199]). There, Sachs LJ delivering the judgment of the Court of Criminal Appeal said:

As a general rule, it is of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are, upon the available evidence, so related whether in time or 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.

17. The reasons for this are articulated in the decision in R v Demirok [1976] VicRp 19; [1976] VR 244 at 254:

The matters of public interest which must be considered in this case, and in 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 matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests 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 so required. Fourthly, the convenience of 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.

18. The decision in Demirok was quoted with approval by the Court of Appeal in The Queen v AI, AD and JR [2013] ACTCA 16 at [22].

19. The applicant for severance of the indictment, Mr Featherstone, bears the burden of showing that it is both desirable and practicable to do so in order to ensure a fair trial: The Queen v CHS [2006] VSCA 19; 159 A Crim R 560 at [73].

20. Essentially, Mr Featherstone seeks to avoid the prejudice which may arise because of the allegations of sexual intercourse without consent levelled against Mr Bloxsome. As will be apparent from the extracts of the reasons given by Elkaim J, that is substantially the same point made previously.

21. There is said to be prejudice to Mr Featherstone arising from:

(a) the nature of the allegations; and

(b) the fact that the allegations of sexual assault removes Mr Featherstone's capacity to elect to have a trial by judge alone.

22. As articulated in submissions, the latter point was given less emphasis. The argument that was ultimately put by counsel for Mr Featherstone involved, as I understood it, the severance of the sexual assault allegations, leaving counts 1 and 5 to be tried along with the other allegations involving Mr Bloxsome. That was different to what was formally sought in the application in proceedings. There is no evidence that Mr Bloxsome would have elected for a trial by judge alone and hence that is a form of trial which would not be available even if severance occurred: Supreme Court Act 1933 (ACT) s 68B(1)(d). In any event, even if a trial by judge alone would have been available to Mr Featherstone, a trial by jury is the norm, not an unfair trial, and no particular reason was advanced why the case was one where trial by judge alone was important for the accused's defence.

23. So far as prejudice arising from a joint trial involving sexual assault allegations is concerned, I accept that there is a risk of prejudice arising from a joint trial involving the sexual intercourse allegations. The obvious feature which gives rise to this potential is the use of the weapon in count 7. However:

(a) that feature alone is not likely to provoke such an emotional reaction as to vitiate the utility of directions given to the jury about how they are to consider the evidence;

(b) the circumstances are not such as to lead a jury to be unable to distinguish between the actions of the two accused; and

(c) it is not a case where there is such a disparity in the gravity of the conduct alleged against each accused or the strength of the Crown case that it could be said that there was a real risk that the gravity of conduct of one accused or the strength of the Crown case against an accused would be unfairly attributed to or taken into account in relation to another.

24. I did not accept the submission made by counsel for Mr Featherstone that the circumstances of the sexual intercourse charges may be readily separated from the circumstances of the other charges. The relationship between the charges is illustrated by this a summary of the factual circumstances alleged by the Crown:

(a) The Crown case is that the relevant events occurred at a house in Narrabundah and a house in Casey. At the house in Narrabundah, Raymond Russell and Dominic Dimitrov are alleged to have been forcibly confined. Mr Diaz is alleged to have been shot by Mr Featherstone and then stabbed by Mr Bloxsome.

(b) The complainant was then forcibly confined and taken to the house in Casey. This is count 5 alleged against both Mr Featherstone and Mr Bloxsome.

(c) Mr Bloxsome is alleged to have taken the complainant into the garage at that house and assaulted her. This is count 6 alleged against Mr Bloxsome. Mr Bloxsome is then alleged to have tied her hands together and made her lie in the back seat of a car in the garage. He is then alleged to have committed two acts of sexual intercourse without consent. These are counts 7 and 8.

(d) Mr Featherstone is then alleged to have gone into the garage and told him to stop. The complainant was then walked into the lounge room where she was hit across the face by Mr Featherstone with the bristles of a broom. She was then taken to the kitchen and punched in the face by Mr Featherstone, Mr Featherstone's wife and another offender [NQ].

(e) Mr Bloxsome is then alleged to have threatened to slit the complainant's throat and pushed a knife against her throat to the extent that it broke her skin. This is alleged in count 9 to be assault occasioning actual bodily harm.

(f) Mr Bloxsome is then alleged to have directed her to go upstairs and to have engaged in sexual intercourse with her without her consent. This gives rise to Count 10.

25. No admissions have been made by Mr Bloxsome. It would be open to the accused to assert that the events did not happen or that the sexual intercourse was consensual. The evidence led by the Crown will need to address both such issues. So far as the issue of consent is concerned, the factual background to the charges of sexual intercourse without consent may be of significance because the confinement and assaults would significantly strength and the Crown case that there was no consent. The Crown also contends that the witnessing by the complainant of the acts giving rise to count 1 and count 2 were part of the motive for the forcible confinement during which the assaults and sexual intercourse occurred.

26. If the trials were separated then it is likely that either much of the evidence in the two trials would need to be repeated or the jury would be denied the full context in which the assaults are alleged to have taken place. The burden of having to repeat the evidence is not simply a burden on the Crown, but also a burden on the most significant witnesses who would be required to give evidence twice and be subject to crossexamination twice. The burden of that is all the more so when the application to sever the proceedings is made at the point where the trial was to commence and where there is likely to have been an expectation that the criminal process in which the relevant witnesses were involved would be concluded at the end of the trial.

27. Finally, I note that counts 1 and 5 are the only counts against Mr Featherstone in relation to which he has pleaded not guilty. Although there are pleas of guilty on the balance of the charges against him, there is no agreement as to the facts relating to those charges. The submissions made on behalf of Mr Featherstone did not explain how those facts were to be found other than during the course of the trial. That simply reinforces the point that severance of the sexual intercourse without consent charges would require substantial repetition of the evidence with a corresponding additional burden upon the Crown and the witnesses.

(a) the application was made late, immediately prior to the commencement of the trial;

(b) the application raised issues which were substantially the same as those raised and determined against the applicant previously by Elkaim J;

(c) the changes in circumstances since the decision of Elkaim J were not such as to alter the considerations relevant to the exercise of discretion;

(d) the offences alleged in counts 1 to 10 all occurred during a course of events on a single day in which both co-accuseds are alleged to have been involved;

(e) the severance of the trial would require duplication of substantial amounts of evidence in two trials with a corresponding burden upon the Crown and, more significantly, the relevant witnesses; and

(f) the sexual assault allegations are not of such a nature as to vitiate the effectiveness of directions given to the jury or otherwise overwhelm the jury's consideration of the evidence in relation to the other charges.

29. For these reasons, the applicant failed to persuade me that it was both desirable and practicable to sever the indictment in order to ensure a fair trial and, as a consequence, I dismissed the application yesterday.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.