different offence at law to that applicable to the other defendants."

Ground 2 is: "The case against Laura Altintas is weak and she will suffer prejudice by being tried jointly with Turner."

Before a further directions hearing heard on 30 September 1994, when I intended to deal with Altintas' application, Mr Richards intimated that he did not have anything further to put in support of her application.

Her application for a separate trial falls to be determined against that somewhat unsatisfactory background.

Dealing with the application by Smith, there is nothing in the Criminal Law Consolidation Act which speaks of joinder of accused persons on the one information. S.278 deals with joinder of charges but ss.(2) of that section makes it clear that it is dealing with the joinder of charges against one accused. Justification for the joinder of the accused in this case must be found in the common law "or as it is sometimes said, in the established practice of the court": R v Hogan and Ors (1990) 159 LSJS 297 per Mullighan J at 306.

As to Smith's application, it will have been seen from the only ground upon which it is pursued, that there is no attack upon the propriety as a matter of law of his joinder with Turner on the information. His application comes down to the proposition that evidence admissible against Turner is said to be so prejudicial to the trial of the charge against Smith that no judicial warning would be adequate to ensure a fair trial for Smith. "When accused are charged with committing a crime jointly, prima facie there should be a joint trial": Webb and Anor v R [1994] HCA 30; (1994) 68 ALJR 582 per Toohey J at 606.

See also Holden (1990) 52 A Crim R 32 per Perry J (with whom King CJ agreed) at 44: "As to the discretion to order separate trials, the prima facie rule is that there should be a joint trial when the accused are charged with committing the crime jointly: see Harbach (1973) 6 SASR 427 at 432, and see also Demirok [1976] VicRp 19; (1976) VR 244; Gibb and McKenzie [1983] VicRp 78; (1983) 2 VR 155; (1982) 7 A Crim R 385; and Glover (1987) 46 SASR 310.

Where the application for a separate trial is put forward on the basis of the likely prejudicial effect of out-of-court statements of a co-accused, it is for the trial judge to balance the effect of the prejudicial statements on the minds of the jury against the likely effectiveness of the usual warnings, but the prima facie rule is not easily displaced: see the remarks of Cox J in Conlon (1982) 30 SASR 176 at 183."

I have held the out-of-court statements by Turner to Roberts to be admissible against both accused jointly charged: those which took place on the night of the alleged offence being admissible under the exception to the hearsay rule relating to statements made during the course of a joint enterprise, and the statements made subsequently being admissible, at least to explain the lapse of time before Roberts went to the police.

It follows that the evidence as to which concern has been expressed is, under one head or the other, admissible against both Turner and Smith.

True it is that if the statements made after the night upon which the alleged offence was committed were to be taken in isolation, it might be suggested that their prejudicial effect outweighs their probative value, at least so far as Smith is concerned. But it seems to me that the earlier statements being admissible upon the footing to which I have referred, there is really no substance in the suggestion that the later statements are likely to have an unduly prejudicial effect.

It follows that this case points more strongly than otherwise might be the case towards the desirability of a joint trial of the accused who are jointly charged, in that there is no body of evidence admissible only against one of them, as to which a particular warning confining its use against the other is involved.

The application by Smith was, therefore, dismissed.

As to the application by Altintas, the first ground is: "1. The offence for which Laura Altintas is charged is a different offence at law to that applicable to the other defendants."

As to that ground, the common law principles under which joinder is permitted justify joinder even where different offences are alleged.

See Assim (1966) 2 QB 249 per the judgment of the Court of Criminal Appeal at 261: "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 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."

Here, while it is true that Altintas is charged with a different offence from that upon which the other accused stand trial, it is an offence in which the "available evidence" is closely related both in time and in other factors to the body of evidence upon which the substantive offence is sought to be proved.

I would have thought that it is ordinarily in the interests of an alleged accessory after the fact to have his or her charge dealt with at the same time as the hearing of the substantive offence. If separate trials were to be contemplated, the conviction of the principal offender or offenders is only prima facie evidence of the commission of the offence as to which accessorial liability is sought to be established; see R v Dawson [1961] VicRp 117; (1961) VR 773. If the alleged accessory sought to offer evidence going to the question whether or not a principal offence had been committed, the accessory would, in the context of separate trials, inevitably have to call much evidence again. If the accessory is tried with the alleged principal offenders, he or she has the opportunity of participating in the presentation of evidence going to the commission of the principal offence, and may by cross-examination or otherwise have an opportunity of playing a part in the defence to the allegations going to the establishment of the principal offence which it would be difficult to achieve in the context of a separate trial.

Until its repeal, s.268 of the Criminal Law Consolidation Act provided in part: "(1) ... (2) An accessory after the fact may be informed against, tried and convicted either together, with or without the principal felon and whether the principal felon has or has not been convicted or is or is not amenable to justice."

That section was repealed as from 6 July 1992 by s.8 of the Statutes Repeal and Amendment (Public Offences) Act 1992 No 35. The subject matter is now dealt with by s.241 which omits any reference to the manner in which an alleged accessory may be tried. Furthermore, that section now provides that the accessory is not guilty of an offence unless it is established that the principal offender committed an offence that the accessory "knew or believed the principal offender to have committed" or "some other offence committed in the same or partly in the same circumstances" (see s.251(2)(a)(i) and (ii)). An offence on the part of the alleged accessory may also be established even if the principal offender is found not guilty of the offence charged, but the Court is satisfied that another person was guilty of the offence (see s.241(5) and Williams [1932] NSWStRp 28; (1932) 32 SR(NSW) 504).

Notwithstanding the changes in the statutory provisions, it seems to me that at common law the principles which find expression in the passage which I have cited above from Assim still apply. In particular, it is within the discretion of the Court to permit the joint trial of an accessory, that is, a trial together with the trial of the alleged principal offender or offenders.

It is true that it is alleged that Altintas is an accessory after the fact to Smith and not to Turner. But because of the ruling which I have made as to the admissibility of evidence against Turner and Smith, it does not seem that anything turns upon that consideration.

As to the second ground put forward on behalf of Altintas, namely, that the case against her is weak "and she will suffer prejudice by being trial jointly with Turner", it is true that, viewed objectively, the evidence foreshadowed so far as against her does not suggest that the case is strong. Sometimes that is a consideration which has been taken into account in ordering a separation of trials. But in this case, I am unpersuaded that proper directions to the jury will not enable them to consider the case against Altintas on its merits.

It seems to me that there are strong reasons of policy and convenience in trying the charge against an alleged accessory with the hearing of the charge against the alleged principal offender.

I could not see in all the circumstances of this case that a proper basis had been made out to disengage the trial of the charge against Altintas from that against the other accused.

For those reasons, her application was also dismissed.