135 The judge then in his ruling dealt with the evidence relied on by Hartwick's counsel in seeking separate trials. As his Honour noted, in a case like the present there is a strong prima facie case against separate trials. His Honour was satisfied that there would be real additional time and expense involved in conducting separate trials, and the possibility of inconsistent verdicts. A large number of witnesses were to be called. Hartwick's counsel had submitted that a joint trial would expose his client to serious unfair prejudice which could not be sufficiently addressed by appropriate directions to the jury about the use of evidence. Ultimately his Honour accepted that Hartwick would suffer disadvantages if the matter proceeded as a joint trial, but was not persuaded that these disadvantages created such a situation of prejudice to Hartwick that the prima facie rule should not apply.
136 In this Court Mr Tehan argued that a separate trial should be ordered when the applicant can show a real risk of positive injustice were he to be tried jointly, and that that risk of positive injustice might arise from any of the following factors all of which were said to be present in this case. He argued that the evidence against John Hartwick was significantly different from the evidence admissible against the co-accused. The evidence against the co-accused contained material highly prejudicial to Hartwick although not admissible against him. There was, it was submitted, a real risk that the weaker Crown case against John Hartwick would be made immeasurably stronger by reason of the inadmissible prejudicial material. It was submitted that that prejudice was not of a kind amenable to nullification by judicial direction. The evidence that was said to be so prejudicial that no judicial direction could remedy it included statements by both co-accused alleging that the applicant played an active part in the offences, the statement by Keith Canham that Lisa Hartwick had said that John Hartwick "stabbed a bloke", and statements by Lisa Hartwick that Hartwick had been violent towards her and forced her to go to the deceased's premises. It followed that the Crown case was that Hartwick, far from being a peacemaker, as he claimed, was the controlling influence of the events on the night of the offences. It was also submitted that because Paula Rodwell's evidence was in part confirmed by statements of the co-accused in their records of interview, the jury would give her evidence unfair weight insofar as it concerned Hartwick.
137 Counsel for John Hartwick had repeated the application for a separate trial on numerous occasions. During the trial evidence was given to the effect that Hartwick had a previous hostile altercation with the deceased and had tried to run him over on the day of the offences, collected and used drugs in the past and on the night of the offences, was wont to carry knives and poles in his car, had used poles to attack a person in the past, had been previously violent towards Keith Canham, had beaten his wife during their marriage and had a propensity to steal. Mr Tehan argued that the combined force of these matters which occurred during the course of the joint trial had led to a miscarriage of justice occurring in consequence of that joint trial even though at the outset the judge might have been correct in not ordering separate trials. Accordingly it was submitted that the Court should find that the joint trial had so prejudiced the applicant that there had been a miscarriage of justice.
138 In his argument to this Court Mr Tehan submitted that there were at least two significant ways in which the records of interview of the co-accused and the evidence given by Rodwell had been bolstered in consequence of a joint trial being added. First, a critical question was whether Hartwick had been armed. Rodwell had said in evidence that all the accused had a knife and a bar, evidence from which he submitted she had moved from time to time. Both Clayton and Lisa Hartwick had answered questions in such a way during their records of interview as to suggest that John Hartwick was armed with a carving knife. The question whether Hartwick was armed or not was a very significant one and the evidence of Rodwell was supported by the records of interview of the co-accused.
139 Secondly, a major question, so Mr Tehan submitted, was whether John Hartwick played a leading role in the attack on the deceased. Rodwell's evidence had been that John Hartwick indeed had played a leading role, saying when the deceased first appeared that "fucking oath, I'm going to kill you". This evidence was allegedly supported both by Clayton and Lisa Hartwick in their records of interview. Accordingly, Mr Tehan submitted that the judge had been wrong to find that the credit of the chief Crown witness was not bolstered by the evidence of the co-accused in their records of interview.
140 Thirdly, the co-accused had given detailed accounts of the deceased's house and the circumstances surrounding the attack on him in their records of interview, whereas Hartwick himself had given no such account. The result was much pressure had been placed on Hartwick to give evidence on oath during the trial. In consequence of a joint trial being had, the likelihood was that his prior convictions would have been cross-examined into evidence. As to these, he had extensive convictions for armed robbery and many dishonesty offences which would inevitably have been revealed to the jury. Had he been granted a separate trial he would have been able to avoid giving sworn evidence if tried on his own.
141 Next it was claimed that in the records of interview of the co-accused, evidence had been included of Hartwick's bad character. Furthermore, Lisa Hartwick had said that she was forced to go down to the deceased's house by Hartwick and that she had been directed by him after the event to wash the knives that were used.
142 Accordingly, so it was said, much supporting evidence had been introduced of Hartwick being armed and taking a leading role from the records of interview of the co-accused. The directions given to the jury were, it was said, quite insufficient to prevent a miscarriage of justice arising from the joint trial of the three accused.
143 Under grounds 2 and 15, Mr Boyce for Clayton argued that the judge erred in the exercise of his discretion in failing to order a separate trial for this applicant also, and that as a result of the course of events which developed during the trial, a miscarriage of justice was caused by virtue of Clayton also not being granted a separate trial.
144 In his opening address to the jury counsel for John Hartwick had argued that Clayton must have been the person responsible for the death of the deceased. Reliance was placed on evidence given by one Macko. Macko gave no admissible evidence against John Hartwick, or, for that matter against Clayton. At an earlier time, Macko was alleged to have said to police that Clayton had told him that she had stabbed the deceased in the neck. Both at committal and at trial, Macko said that this was not true and that the applicant had never said such a thing to him. These statements resulted in Clayton's counsel formally applying for a separate trial, relying on the prejudicial statements contained in Lisa Hartwick's record of interview, and John Hartwick's counsel's cross-examination of Macko. The judge ruled against the separate trial application.
145 Mr Boyce accepted that accused persons jointly charged with having committed one offence should ordinarily be tried together. He also accepted that the fact that one accused may seek to implicate another during the course of a trial is not a sufficient ground for granting separate trials. He argued however that the trial judge's discretion to order a separate trial ought be exercised in order to preserve an accused's right to fair trial and that the basic question for the judge was whether the prejudicial effect of any admissible evidence could be neutralised by appropriate instruction to the jury. Mr Boyce argued that although the judge may have made no error in failing to grant a separate trial, it was apparent with the benefit of hindsight that a miscarriage had arisen by virtue of there having been a joint trial, in particular because of the evidence obtained through the record of interview of Lisa Hartwick accusing Clayton of being the "stabber", and because of the attempt by counsel for John Hartwick to establish in the mind of the jury that there was some truth in Macko's mistaken statement to police that he had been told by Clayton that she had stabbed the deceased in the neck.
146 Mr Boyce accepted that the judge had "warned the jury independently about the misuse of each independent evidential source of counsel's attack". The judge had warned the jury against misusing counsel's cross-examination of Macko and his invitation to speculate, and had also warned the jury several times against using material in a co-accused's record of interview against the applicant. It was submitted nonetheless that the combined power of these events was potentially devastating and that the prejudice sustained could only have been further enhanced when there was thrown in evidence given by a witness, Gower, of his observations of Clayton earlier on the evening of the death of the deceased, saying that she was then in an aggressive state. All this was said to lead to Clayton not having received a fair trial.
147 In response, Mr Hillman relied on the prima facie rule that persons charged jointly with one offence should be tried together, subject to the question of prejudice. He argued that in exercising his discretion the judge took into account and gave sufficient weight to all the relevant factors. His Honour took into account the circumstance that the Crown would rely on the evidence of Rodwell and of the admissions by the co-accused not admissible against John Hartwick. His Honour had taken the view that the situation was not one where it could be said that the inadmissible evidence against John Hartwick bolstered the credit of the chief Crown witness in any general or blanket way. The Crown submission was that it was wrong to suggest that the evidence of Rodwell had been bolstered by the records of interview of the co-accused, rather their statements had in fact disputed Rodwell's account in a number of significant areas. His Honour had taken the view that it was possible to explain the case against each of the co-accused with clear definition, separating the evidence admissible against each applicant from that which would be classified as inadmissible against another being a straightforward exercise and capable of being understood by a jury with the necessary directions. Such directions, Mr Hillman submitted, had been repeatedly given by the judge during the trial. Accordingly, he argued, the judge had correctly applied the relevant test at the outset of the trial. Insofar as it was argued that prejudice arose during the course of the trial, the additional matters included evidence regarding an intervention order being taken out by Lisa Hartwick against John Hartwick and evidence of the supposed bad character of John Hartwick. As to these matters it was plain that the judge was not satisfied that counsel for John Hartwick had established the necessary real risk of prejudice to warrant the grant of separate trials. Furthermore, the judge had given appropriate directions at length in his charge as to separate consideration of the case against each applicant. Accordingly it was submitted that this could not be classified as one of those rare cases in which, although the trial had been correctly conducted, the result had been to expose John Hartwick to a conviction influenced by material that was both highly prejudicial and inadmissible, leading to a miscarriage of justice.
148 There was, we think, nothing in the evidence produced during the trial regarding either the intervention order, or the supposed evidence of bad character of John Hartwick, which was of significance. The tender of the intervention order was itself not objected to by counsel for John Hartwick. Insofar as evidence of bad character was given, it was of little significance in the overall conduct of the trial, covering matters such as going to the premises of Bi-Lo to get cannabis, and evidence by Canham that John Hartwick had previously attacked someone with poles. The actual presence of poles in Hartwick's car was relevant to issues raised in the trial. The jury were told by the judge, in his charge, to ignore this evidence against Hartwick.
149 In our opinion, John Hartwick failed to make good either of grounds 1 or 2. The judge correctly rejected the original application for separate trials, and nothing occurred during the course of the trial to justify ordering a separate trial against him.
150 We turn to the like applications made on Clayton's behalf during the course of the trial. At the outset, the trial judge stated his view that counsel for Clayton had not reached the necessary point that prejudice might be suffered warranting the granting of separate trials. When the application was reviewed from time to time by Clayton's counsel, much reliance was placed on the evidence bearing on the conversation with Macko. Prior to charging the jury, the judge set out to counsel the proposed direction he intended giving in regard to the evidence of Macko. In his charge, the judge directed the jury as to separate consideration of the cases against each of the applicants and directed them at considerable length not to use evidence that was admissible against one in their consideration of a case against another where that evidence was not admissible. His Honour made specific reference to the evidence of Macko and directed the jury in strong terms that Macko's evidence had no evidentiary value in considering the case against any of the applicants.
151 In our view the judge did not err in refusing the application for a separate trial on behalf of Clayton, whether at the outset, or during the trial itself.
152 Each of John Hartwick's grounds 1 and 2, and Clayton's ground 2, 3 and 15 should be rejected.
Prior inconsistent statements
First applicant - Ground 16
Third applicant - Ground 17
153 The argument under these grounds, made by Mr Tehan, was that the judge erred in failing to give the jury any direction in relation to prior inconsistent statements. This ground may be dealt with very briefly, since it was not submitted that this ground alone would have been sufficient to overturn the convictions.
154 Paula Rodwell was cross-examined at great length, by counsel for each applicant, and her evidence was on a number of occasions shown to have been inconsistent with prior statements she had made both in her evidence of the offences themselves, and as to surrounding matters. Furthermore, statements made by Keith Canham were also shown to have been inconsistent with earlier statements made by him.
155 Mr Tehan accepted that whilst extensive reference was made by all counsel to the prior inconsistent statements of these witnesses, both in cross-examination and addresses, no counsel asked the judge to give any direction as to how the jury might use such prior inconsistent statements, nor was any direction given by his Honour during the charge to the jury. Of course, no exception was taken by counsel to the fact that his Honour had given no such direction. Indeed, in relation to Rodwell, the judge said that he would not refer to her cross-examination on prior statements which were said to be inconsistent, as they had been referred to extensively in counsel's addresses.
156 It was submitted that the judge should have directed the jury on how they could or should use prior inconsistent statements in assessing the reliability of the evidence of Rodwell and Canham. It was argued that without proper direction the jury may well have regarded the time spent by counsel on exploring prior statements as a distraction. It was submitted that proper directions could well have had an important bearing on the jury's assessment of evidence bearing on critical issues including John Hartwick's demeanour after the deceased rammed his car into the applicants' cars and John Hartwick's role in the offences at the house of the deceased. Reliance was placed on Driscoll v. R.[114] and R. v. Schmahl[115].
157 As Mr Hillman said in argument, cross-examination of Rodwell about prior statements made by her had been dealt with in particular by counsel for John Hartwick, who spent much time in his address on the subject. Counsel told the jury repeatedly that these prior misstatements went to the credit of the witness and the jury were told how the evidence could be used to attack her credibility. If counsel had thought it necessary for any such direction to have been given by the jury, no doubt it would have been asked for. It is unnecessary to deal further with this ground.
Bad character and propensity
First applicant - Ground 17
Third applicant - Ground 16
158 Under John Hartwick's ground 17 Mr Tehan argued that the judge erred in failing to give any direction in relation to evidence of his client's bad character, being the evidence previously referred to in grounds 3, 4, 5 and 6. It was submitted that the judge should have given a strong warning to the jury that they could not use evidence of his bad character to reason that he was the kind of person who would commit the offences with which he was charged, that they could not use this evidence as a basis for their verdict, nor as proof of the offences charged. Most of the evidence, it was submitted, was tendered simply to show that the applicant was of bad character. Accordingly it was submitted that the judge had to give an appropriate direction such as that given in R. v. Grech[116].
159 Mr Boyce for Clayton adopted Mr Tehan's argument.
160 It is sufficient to say that Mr Hillman submitted that the evidence of bad character and/or propensity referred to was quite insignificant in the context of the trial as a whole, and that, by the time of the charge, counsel may well have taken the view that it was better not to highlight these matters and that it was desirable that they not resurface in the minds of the jury by their being reminded of them. No serious prior convictions were referred to and the relevant evidence in the context of the whole trial was little importance. No relevant exception was taken.
161 As we noted when dealing with grounds, 3, 4, 5 and 6, the bulk of the evidence which is the subject of those grounds was led to show the nature of the relationship between the applicants and the deceased and was admissible as part of the history of events showing the nature of the relationship between the applicants and the deceased and by comparison with the evidence of acts with which each applicant was charged, it was of minimal prejudicial effect. As already explained, we do not consider that there is any real risk that the jury made impermissible use of the evidence in reasoning to a conviction. We are strengthened in that conclusion by the fact that the judge specifically directed the jury that they were to exclude bias and sympathy and prejudice from their considerations and to decide each count on the basis only of the evidence which related to that count.[117] In some other cases it may have been necessary for the judge to go further than that, and specifically to direct the jury as to the limited purpose for which the evidence had been admitted [118] and that they were not to reason that because the applicants were the sort of people who had done things of that kind that they were more likely to be the kind of people who would commit the offences with which they were charged.[119] But, in our judgment, this was not such a case.[120] We reject grounds 16 and 17.
Appeal against conviction allowed in part
162 For the reasons which we have given, each applicant's application for leave to appeal against conviction will be allowed and each applicant's appeal against conviction will be taken to have been instituted and heard instanter and allowed in part. The conviction entered against each applicant on the count of having intentionally causing serious injury to Paula Rodwell (count 2) will be quashed and it will be ordered that a new trial be had. Otherwise, however, each appeal against conviction will be dismissed.
Resentencing
163 The quashing of the convictions on count 2 necessitates reconsideration of the non-parole period ordered in respect of each applicant and consequently reopens the sentencing discretion generally in respect of each applicant. Celia Clayton's application for leave to appeal against sentence will therefore be allowed and her appeal against sentence will be treated as having been instituted and heard instanter and allowed. Subject to anything which counsel may say, we propose also to treat each other applicant as applying for leave to appeal against sentence and to allow their applications and to treat their appeals as instituted and heard instanter and allowed. That said, however, we see no reason to disagree with the learned judge's analysis of sentencing considerations or his Honour's sentencing synthesis in respect of count 1 and accordingly we have concluded that that each should be re-sentenced on the count of murder (count 1) to 18 years' imprisonment and should serve not less than 14 years' imprisonment before being eligible for parole.