R v McBride [2007] ACTSC 8

3. It alleges that Mr McBride, on the same date, assaulted Mr Kamely, occasioning to him actual bodily harm, and in the alternative that he committed common assault on Mr Kamely on that date.

4. The Crown case, as set out in the case statement filed with the indictment of 8 August 2006, is that Mr Kamely, who was visiting Canberra from Sydney, attended at a Canberra bar in the early hours of 17 July 2006. He then is alleged to have become involved in an altercation with Mr Jesse Bullock. It is alleged that as a consequence of this Mr Jesse Bullock was escorted from the bar by security staff, and that he then attended another Civic bar where his cousin, the accused Mr Wayne Bullock, was drinking with the accused Francis Louis. It is alleged that Mr Jesse Bullock told his cousin about the altercation and, as a consequence, Mr Wayne Bullock, Mr Louis Francis, and others attended the original bar and commenced assaulting Mr Kamely.

5. It is alleged that Mr McBride had been drinking in the original bar, and that after observing Mr Bullock and Mr Francis assaulting Mr Kamely, he kicked Mr Kamely on a number of occasions. It is not alleged that he accompanied Mr Bullock and Mr Francis, or that he aided and abetted either of them in their alleged offences.

6. The principles to be applied in applications to separate counts on an indictment to proceed to separate trials involving numerous accused are well settled. In Webb v R and Hay v R [1994] HCA 30; (1994) 181 CLR 41 at 88-89, Toohey J (with whom Mason CJ and McHugh J agreed) referring to the decision below, said:

King CJ dealt with this ground by pointing out that there are "strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together ... What King CJ referred to as "strong reasons of principle and policy" were discussed by his Honour in Reg v Collie [1991] SASC 2996; (1991) 56 SASR 302 at 307-311. I respectfully agree with that discussion which emphasizes that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others.

7. Of course, these issues of practicality and convenience must give way to the overwhelming interest, now recognised by the Human Rights Act 2004, that every accused must be afforded a fair trial.

8. In his submissions, counsel for the Crown, appropriately, it seems to me, submitted that the following principles emerge from Webb and R v Fernando [1999] NSWCCA 66 at [210]:

(a) Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and

(b) Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and

(c) Where there is real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.

9. Counsel for Mr McBride submits that the three accused cannot be said to be committing a crime jointly, in that the Crown case is that Mr Bullock and Mr Louis were acting jointly. After hearing of the earlier incident from Mr Bullock's cousin, they left the bar they were drinking in to come to the bar and deal with Mr Kamely. Mr McBride, on the Crown case, was not involved in this enterprise, but decided, opportunistically, to kick Mr Kamely when he was on the ground as a consequence of the alleged assaults by Mr Bullock and Mr Louis. In this sense, says Mr McBride, he was not, even if acting as alleged, acting in the same enterprise as the other accused.

10. Whilst this is true, it seems to me that there was the one course of conduct. At the hearing of the application on 7 December 2006 I had the advantage of written submissions by the parties, but I invited the Crown to submit additional submissions on the nature of the evidence proposed to be lead. This was partly in response to the submission by Mr McBride's counsel that "there is no evidence that the accused actually made contact with the alleged victim and the Crown is unable to point to any injury inflicted on the alleged victim by the accused".

11. In submissions received on 29 January 2007, counsel for the Crown submit that they will present two witnesses who were at the nightclub and who will say that they saw Mr McBride kick Mr Kamely. One will also say that Mr Bullock also assaulted Mr Kamely, and another will say that they saw another person assault Mr Kamely.

12. It seems to me that, on this evidence, it can be said that there was one course of conduct and, more significantly, to order separate trials would lead to the real possibility, adverted to by Toohey J in Webb of:

... inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others.

13. If the trials were separated, it is clear that in the trial of Bullock and Louis, witnesses may give evidence, either in chief or in cross-examination, that they saw Mr McBride kick Mr Kamely. This would open a strategy for the defence to put that any injuries sustained by the victim were the consequence of Mr McBride's actions. Equally, in a separate trial of Mr McBride, witnesses would say or concede in cross-examination that they saw Mr Bullock or another person assault Mr Kamely, again opening the strategy that any injuries sustained were caused by Mr Bullock or Mr Louis as each of the persons is charged with assault occasioning actual bodily harm as well as common assault.

14. These factual issues, it seems to me, are best resolved by a single jury hearing the whole case. To the extent that the Crown case against Mr Bullock and Mr Louis is that they planned to leave the premises where they were drinking and go to the subject bar to deal with Mr Kamely, whereas the Crown case against Mr McBride is that it was an opportunistic assault on a person lying on the floor after being assaulted by others, clear directions can be given to the jury. As Calloway JA said in the Victorian Court of Appeal in Bullen (1999) 102 A Crim R 74 at 84:

It is usually to be assumed that the jury will comply with any directions that they are given by the judge. A fair-minded lay-observer takes that very factor into account in considering whether a trial is fair.

15. A similar view has been taken by the House of Lords in R v Christou [1997] AC 117; 2 ER 927. His Lordship there said, in determining an application for separate trials of one accused on a number of counts, that:

... the essential criterion is the achievement of a fair resolution of the issues. That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are:- how discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judge's directions of law are to be applied faithfully. Experience shows ... that juries, where counts are jointly tried, do follow the judge's directions and consider the counts separately.

16. It seems to me that the applicant has not established any prejudice should the trial proceed jointly. Indeed, were the trials to be separated, the prosecution could suffer the real prejudice of the individual trials focussing on the involvement of the other absent party, in the manner described by Toohey J in Webb. While the Crown case will involve certain evidence in the aiding and abetting counts involving the relationship between Mr Bullock and Mr Louis, and that will not be admissible against Mr McBride, the jury can be clearly instructed that this is the case. They should understand the nature of the Crown case, from the opening, that Mr Bullock and Mr Louis are alleged to have acted together and Mr McBride to have acted independently and opportunistically, in a series of assaults, closely connected in time and place, on Mr Kamely. The eye-witnesses, on the material provided to the Court by the Crown, will give evidence of seeing Mr McBride and the others involved in certain activities with Mr Kamely. There is a real advantage in this evidence being given once and properly tested in cross-examination.

17. The application for a separate trial is dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Solicitor for the Defence: Darryl Perkins Solicitor

Dates of hearing: 22 November 2006 and 7 December 2006