I consider these remarks to be entirely correct.
33 As the evidence of the earlier incidents will, in any event, be admissible against Chami, the powerful considerations involving avoidable inferences of guilt by association and additional cost and inconvenience that I regarded as being of paramount importance in the case of TS do not apply to Chami.
34 In the circumstances, I am not persuaded, in relation to Chami, that the decision by Finnane DCJ is wrong. I would dismiss the application for leave to appeal by Chami.
35 SULLY J: So far as the application by Chami for leave to appeal is concerned, I respectfully agree with the learned presiding Judge. I do not need to add anything to what has fallen from his Honour in connection with either the relevant law or the relevant facts.
36 So far as concerns the application for leave by TS, I regret to say that I have come to a conclusion contrary to that reached by his Honour the presiding Judge.
37 I accept of course that the decisions in Middis and Baartman to which his Honour has referred may be taken as stating in the aggregate the basic principles now relevant. I draw attention, in connection with the decision in Middis, to the proposition advanced by Mr Justice Hunt that "the applicant must show a positive injustice would be caused to him in a joint trial". There are several things to be said about that statement. The first is that it conveys the proposition that there is imposed upon the applicant for a severed trial a burden of proof of real substance. That is a burden which is directed, not at what might be known in other jurisdictions as the balance of convenience, but at the very different proposition that a severed trial if it is to be justified at all, must be justified by "positive injustice".
38 To my mind, what is conveyed by Mr Justice Hunt's proposition is that the applicant to sever a trial undertakes no light burden. It is the fixed position of the common law, at least as I apprehend it, that people who are charged as co-offenders in connection with what might be understood reasonably as a fairly unbroken continuum of serious crime, are ordinarily and properly to be tried together. There are fundamental propositions of public policy, as I respectfully apprehend the relevant stance of the law, that underpin and explain that approach.
39 It is convenient to refer to some observations of McHugh J in a comparatively recent judgment of the High Court: Gilbert v The Queen 170 ALR 88 at pp 96 and 97.
40 The passages are short passages, and I trust that it will not be thought untoward of me if I take a moment to read them in order that those who are listening to what is being said will get at least the general sense of what it is that I take from the decision.
41 Gilbert was convicted by a jury of murder. It was contended for him on his appeal to the High Court of Australia that the trial Judge had erred in not leaving to the jury the possible alternate verdict of manslaughter. One of the arguments put for the appellant appears to have been that if manslaughter had been left as an issue, the jury might well have convicted him of manslaughter, notwithstanding that their verdict necessarily showed that they were satisfied beyond reasonable doubt that the "facts" upon which the "defence" of manslaughter depended were not true. Mr Justice McHugh expresses the view, as his Honour puts it, "that this argument should be rejected as a matter of legal policy as well as legal principle and established authority". There then follows the statements which seem to me to be of particular relevance for the purposes of the present application. Those statements are as follows.
"The argument for the appellant is a claim that this court should proceed on one of two bases, each of which necessarily involves an assumption that, if manslaughter had been left as an issue, the jury might have disregarded their sworn duty to give a verdict in accordance with the evidence. The first assumption is that, if manslaughter had been left, the jury might have convicted of manslaughter even though they knew, because of the trial judge's directions, that the appellant was guilty of murder. The second assumption is that the jurors were not convinced beyond reasonable doubt that the appellant knew that his brother intended to kill or to inflict grievous bodily harm on (the victim), that they knew therefore that he was not guilty of murder, but that they nevertheless convicted him of murder rather than acquit him and see him go free. In my respectful opinion, as a matter of legal policy, no court of justice can entertain either assumption.
The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was now rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials."
42 I am in respectful and complete agreement with those propositions put by his Honour. I have quoted them at such length because fundamental to the present application is, precisely, the proposition that the jury at the proposed joint trial, if properly directed by the presiding Judge as to the relevant principles of law, cannot be trusted, to put the matter plainly, to then act reasonably, and in accordance with the directions of law that they will have thus been given.
43 For myself, I would never lightly accept that such an inference was to be drawn about the likely course of any trial by jury. As I understand the comments stated with such authority by McHugh J, in my respectful opinion they are entirely correct in principle and are relevant in connection with the present application.
44 The next thing that I would observe about the present application is based upon the celebrated statement of Mr Justice Oliver Wendell Holmes, as he subsequently was, that the life of the law has not been logic, but experience. It would be entirely naïve, in my respectful view, not to understand that there lies behind most, if not perhaps literally all, applications for separate trials, not only a concern with high matters of legal philosophy and principle, but hard, cold, strategic calculations and tactical calculations in connection with the presentation, with the maximum tactical and strategic advantage, of the trial which it is proposed should be severed.
45 The present case furnishes, I think, a very good example of the possibilities that are open in that regard. I imagine that if the Court were to sever the trial of TS, it could be expected reasonably that the trial of the remaining co-accused would thereupon proceed, TS's trial being set aside until it was known what had happened in the cases of the other offenders. That, of course, puts TS, not in the position where he is able to avoid positive injustice, so much as in a position where, depending of course upon how the putative joint trial had turned out, he might be able to procure in substance no less positive an injustice by avoiding a verdict which was in a true sense not representative of where he really stood in the scheme of things, once that entire scheme had been looked at as a whole. [I would presume from what the learned presiding Judge said as a "valuations tactical argument". I regard it as a proposition of established practice in the criminal courts of this State.] [JUDGE'S NOTE: The material in brackets makes, obviously, no sense. The judgment was delivered ex tempore and not from prepared notes. It is impossible to reproduce from unaided recollection what was actually said] I would for myself never lightly encourage that view or that approach to matters of the seriousness of the present matters.
46 It seems to me that before one could say with proper confidence that the applicant had shown that "positive injustice" could result we should look at of the need to know with precision, which I at least do not perceive in the material before the Court, first, what exactly in the end the complainant will say about the applicant; secondly, what in particular the applicant will say about the complainant; thirdly, what in particular other people concerned, in particular other co-accused, will say either about the applicant or about the complainant. These are not artificial considerations. They are the bones and sinew of the practical conduct of the trial of the kind that is proposed to commence next Monday.
47 It seems to me that the party bearing the onus of proof, that is to say the applicant in the present case, needs to demonstrate in a real, practical, positive way some such conjunction of facts and circumstances as to those three matters of which I have spoken, as to justify a reasonable mind in drawing the inference that there is indeed demonstrated "positive injustice" in the sense which I apprehend to have been intended by Mr Justice Hunt in his Honour's judgment from which I have been quoting.
48 I agree, and for the reasons given by the learned presiding Judge, that it is possible to make a case, and a not unpersuasive case, based upon mere convenience; but that does not seem to me to be relevant in a case such as the present kind. It has been stated repeatedly by Courts is that an accused is not entitled to a fair trial in some vague and abstract sense. He is entitled to a fair trial according to law, that being said in the sense that in the world of human affairs the law, like everything else, cannot be expected to be absolutely ideal and absolutely perfect in all circumstances and at all times.
49 I am not at all persuaded that, if the present applicant is presented in a joint trial such as is proposed, he cannot receive a fair trial according to law.
50 For those reasons and with all proper deference to his Honour, I cannot join his Honour in the order that he proposes in relation to the application of TS. That application, too, I would refuse.
51 BELL J: In respect of the applications I agree with the reasons of the presiding judge and with the orders of the presiding judge.
52 IPP AJA: The order of the court will be as I have indicated.