Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against order for separate trials - Discretion to order separate trials under s 133(4) of the Criminal Procedure Act 2004 (WA) - Relevance of delay in holding joint trial

Criminal Procedure Act 2004 (WA), s 76, s 133, cl 9(2)

Orders for separate trials made on 1 April 2010 set aside

Respondent's application under s 133(4) dismissed

Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17

Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81

The State of Western Australia v GBT [2006] WASCA 75

1 McLURE P: The State of Western Australia appeals from the order made by Martino ACJDC on 1 April 2010 that the first and second respondents be tried separately.

2 By an indictment dated 27 February 2009 the respondents are jointly charged with two counts, one of possessing a quantity of MDMA with intent to sell or supply and one of possessing a quantity of methylamphetamine with intent to sell or supply.

3 The alleged facts of the offences are as follows. At about 12.01 am on 5 March 2008 the accused departed from Bankstown airport in New South Wales and flew to Jandakot airport in a small plane piloted by Mr Santos. They landed at Jandakot airport about 3.50 pm - 4.00 pm and were spoken to by police. The plane was subsequently searched and a black sports bag was located in the cargo hold of the plane. It was found to contain vacuum sealed bags which contained a total of approximately 30,000 ecstasy tablets weighing 8.843 kg and further vacuum sealed bags containing a total of 21.85 kg of methylamphetamine.

4 Each of the accused denied any knowledge of the bag or its contents. There is no forensic evidence to link either accused to the bag or the drugs. The first respondent (Mr Micalizzi) was found to be in possession of a false New South Wales driver's licence in the name of Tony Rizzo and had no cash or credit cards on him. He was also found to be in possession of a mobile telephone which had been activated on 4 March 2008 in a female's name at an address at which that name is not known. An analysis of Mr Micalizzi's phone showed that it had been contacted by two other mobile phones during the course of the flight and also shortly prior to the plane landing at Jandakot airport. The two other phones were also activated on 4 March 2008 in names which were not known at the addresses given to the telephone company. Mr Micalizzi denied that the bag or its contents belonged to him but made no other comment.

5 The second respondent (Mr Santos) was found in possession of almost $9,000 in cash. He was also found to be in possession of two mobile phones which were not subscribed for in his name or at addresses associated with him. In a record of interview at the scene, Mr Santos claimed that Mr Micalizzi was on a joy flight and had offered to pay for the cost of the fuel from New South Wales to Western Australia, albeit that no money had been paid to him at that time. He said he did not know the name of the passenger, that the black bag was not his and that he did not know if the passenger had any bags when he came aboard the plane.

6 On 7 August 2008 Mr Micalizzi was granted bail. It was a condition of his bail that he remain in Western Australia.

7 After an initial unsuccessful bail application, Mr Santos applied for and was granted bail on 13 October 2008. Upon being granted bail, Mr Santos returned to New South Wales where he was arrested by New South Wales police on charges of cultivation of a commercial quantity of cannabis. Mr Santos has been remanded in custody in New South Wales since his return to that State.

8 On 28 November 2008, Mr Micalizzi appeared in the Perth District Court for the first time and the State indicated it intended to present a joint indictment against both accused. After several unsuccessful attempts, on 20 February 2009 Mr Santos was committed to appear in the Perth District Court.

9 The State filed a joint indictment in the Perth District Court on 27 February 2009.

10 After an earlier indication by Mr Santos of a possible plea of guilty to the New South Wales charges, he indicated to the District Court at a trial listings hearing on 12 June 2009 that he intended to plead not guilty to the New South Wales charges.

11 By letter dated 2 July 2009, the Western Australian Director of Public Prosecutions (WA DPP) wrote to the New South Wales Director of Public Prosecutions (NSW DPP) asking for his assistance in facilitating the transfer of Mr Santos back to Western Australia to stand trial. By letter dated 14 July 2009, the NSW DPP advised that he would not recommend to the New South Wales Attorney General that he consent to the transfer of Mr Santos to Western Australia to stand trial.

12 On 17 July 2009, a District Court judge listed the matter for a seven-day trial to begin on 9 November 2009, notwithstanding that the court was made aware of the NSW DPP's negative response to the request for the transfer of Mr Santos to Western Australia. On Mr Micalizzi's application, the commencement of the trial was deferred to 12 November 2009.

13 The WA DPP remained in contact with the NSW DPP concerning the progress of Mr Santos's committal proceedings in New South Wales. The committal proceedings, which commenced on 30 July 2009, were adjourned on 26 October 2009 due to illness of the presiding magistrate. The adjourned hearing of the committal proceedings was listed for 10 February 2010 but was later adjourned to 29 April 2010 because of the continuing illness of the presiding magistrate. At the time of the hearing of this appeal, the committal proceedings were still not completed. At all material times the NSW DPP has maintained his position that he would not agree to the transfer of Mr Santos to Western Australia to stand trial before the completion of proceedings in relation to the New South Wales charges. If Mr Santos was committed to trial on those charges, his conservative estimate for the listing of the trial would be the last three months of 2010.

14 By application dated 4 November 2009, the State applied to adjourn the District Court trial. An adjournment was granted.

15 At a further trial listings hearing in the Perth District Court on 4 December 2009, a six-day trial was listed to commence on 6 April 2010. On 1 April 2010 the State applied for a further adjournment. Mr Micalizzi made an application for separate trials. The State accepted in the hearing below that there may have to be some alterations to the bail condition requiring Mr Micalizzi to remain in Western Australia (ts 3 - 4).

16 Clause 9 of sch 1 of the Criminal Procedure Act 2004 (WA) (the Act) provides in subcl 9(2) that:

If one charge charges 2 or more accused, they must be tried together unless a court orders otherwise under this Act.

17 Section 133 of the Act deals with the power to order separate trials. It relevantly provides:

(1) The powers in this section may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.

...

(3) If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -

(a) that the accused be tried separately on one or more of the charges; and

(b) the prosecutor to tell the court the order in which the charges will be tried.

(4) If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -

(a) that one or more of the accused be tried separately from the other or others; and

(b) the prosecutor to tell the court the order in which the accused will be tried.

(5) In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -

(a) to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;

(b) to so decide irrespective of the nature of the offence or offences charged; and

(c) to so decide even if -

(i) the evidence on one of the charges is inadmissible on another; or

(ii) the evidence against one of the accused is not admissible against another,

as the case requires.

18 The primary judge accepted that the need for an adjournment was not attributable to any fault on the part of the State or the WA DPP, there being no basis upon which the New South Wales authorities could be compelled to release Mr Santos in order to stand trial in Western Australia. He also accepted, correctly in my respectful opinion, that he must accede to the WA DPP's application for an adjournment of the trial unless he ordered separate trials.

19 The primary judge noted that s 133(4) is commonly considered in situations where an accused submits that he or she will be prejudiced if there is a joint trial because of matters such as prejudicial evidence which would not be admissible against one or other co-accused (ts 56). He continued:

However, it's my view that section 133(4) is a wide provision, and that a court does have power to order separate trials, if satisfied that it's appropriate to do so, because an accused would be prejudiced by delay if separate trials are not ordered (ts 57).

20 The primary judge accepted it was very likely that each co-accused would run a cut-throat defence, that is, each seek to blame the other. He continued:

When considering his application, I take as the paramount consideration the attainment of justice. On the one hand, the State has an interest in the trial being a joint trial and in accordance with the authorities and principles to which I've just referred. On the other hand, any accused person has a legitimate expectation that the trial will proceed as soon as reasonably possible. And any delay does cause prejudice to an accused person.

There is evidence before me of prejudice in the form of expense and inconvenience to witnesses. There's also the inevitable prejudice of anxiety and interference with the life of an accused person if a trial is delayed. And in this regard, it is relevant that the accused man, Mr Micalizzi, is a resident of New South Wales and that he's been here by reason of this prosecution.

It's these competing interests that I need to balance to come to a conclusion on the applications before me. Having regard to the period since 5 March 2008, it's my view that the scales favour granting a separate trial. I reach that conclusion on the basis that by reason of that lengthy period, the prejudice to the accused man, Mr Micalizzi, by refusing separate trials and therefore granting the adjournment is such that I should not do so (ts 58 - 59).

21 The grounds of appeal are in the following terms:

(1) The learned judge erred in law in deciding that an order for separate trials could be made under section 133(4) of [the Act] on the basis that the first respondent would be prejudiced by a delay in holding a joint trial, and in making an order for separate trials on that basis.

(2) In the alternative to ground 1, the learned trial judge erred in law by failing to consider the provisions of section 133(5) of [the Act] and in particular whether any likelihood of the first respondent being prejudiced by delay could be guarded against by a direction to the jury.

(3) Further and in the alternative to ground 1, the learned judge erred in the exercise of his discretion under section 133(4) of [the Act] by concluding that a delay of approximately three years between the alleged commission of the offence and trial, resulting in:

(a) expense (to the first respondent);

(b) inconvenience to witnesses (to be called by the first respondent);

(c) anxiety (suffered by the first respondent); and

(d) interference with the life of the first respondent,

constituted sufficient prejudice to justify an order for separate trials.

22 The grounds of appeal do not clearly identify the real issues. The State contends in substance that (1) the delay in holding the joint trial is incapable of enlivening the court's discretion to order separate trials because it did not permit the court to be satisfied that Mr Micalizzi was likely to be prejudiced in the trial of the indictment; (2) the primary judge took into account irrelevant considerations; and (3) the exercise of the discretion to order separate trials was unreasonable in the sense that it gave rise to an appealable error.

The proper construction of s 133

23 The discretion to order separate trials under s 133(4) of the Act is not enlivened unless and until the court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused.

24 Thus, the first task of the court is to seek to satisfy itself of two matters; first, that an accused is likely to be prejudiced in the trial and secondly, that the likely prejudice is caused by the fact that the prosecution notice or indictment also charges one or more other accused. This threshold condition, which must be satisfied before any discretion is enlivened, is not purely subjective. There must exist reasonable grounds upon which a court could properly be satisfied of the two elements which comprise the condition: Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17 [54].

25 The expression 'in the trial' means in the hearing at which the verdict on each charge the subject of the prosecution notice or indictment is determined on the evidence adduced at that hearing. That is, the matters said to give rise to the likely prejudice must impact or affect what happens in the trial. The likely prejudice must be actual (not assumed) and must be in the trial itself.

26 However, the presence of s 133(5) does not compel or require that the prejudice must be of such a nature as can be guarded against by a direction to the jury. Subsection (5) identifies what is permissible; its purpose and effect is not to circumscribe the matters that are capable of constituting prejudice for the purposes of s 133(4).

27 Thus, prejudice for the purposes of s 133(4) may stem from some circumstance other than the admission of otherwise inadmissible and prejudicial evidence: The State of Western Australia v GBT [2006] WASCA 75 [50]. I see no reason in principle why delay prior to trial could not in appropriate circumstances give rise to relevant prejudice in the trial itself. Delay which adversely affects the availability of a material defence witness may fall within that category.

28 It is unnecessary for the purposes of this appeal to address the question of the scope of the discretion to order separate trials once it has been enlivened. However, it may be thought that the above construction of what can constitute prejudice favours the minority view on the scope of the discretion in The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81.

29 The primary judge erred in failing to address himself to the first task in s 133(4). In particular, he failed to consider and satisfy himself that Mr Micalizzi was likely to be prejudiced in the trial because of the joint indictment but rather went straight to discretionary considerations. He approached the exercise of the power to order separate trial in much the same way as would have occurred under s 624 of the Criminal Code (WA), the predecessor of s 133 of the Act. Unlike s 133, the discretion in s 624 was not conditional.

30 The primary judge in the purported exercise of the discretion took into account delay caused prejudice in the form of additional expense prior to trial, inconvenience to witnesses, anxiety to Mr Micalizzi and the interference with his life pending the trial, it being a condition of his bail that he, a resident of New South Wales, remain in Western Australia. These considerations are irrelevant to establishing the condition necessary to enliven the discretion because of the absence of any connection with likely prejudice in the trial.

31 Thus, the primary judge erred in failing to satisfy himself of the statutory matters necessary to enliven the discretion to order separate trials. That error requires the intervention of this court unless the error would have no effect on the outcome.

32 Mr Micalizzi's application for separate trials was supported by an affidavit sworn by him on 30 March 2010 and an affidavit from his mother sworn the same date. Both affidavits are general and assertive in nature and do not provide a sound foundation to enable the court to be satisfied that there was a likelihood of prejudice in the joint trial.

33 Mr Micalizzi deposes to suffering psychologically as a result of spending five months in custody and having to reside in Western Australia as a condition of his bail; difficulty coping with the uncertainty resulting from the trial hanging over his head; the fact that he has incurred substantial legal costs in getting the matter up for trial in November 2009 and then April 2010. The only matter which he relates to the trial is a statement that 'the memories of myself and defence witnesses are now being affected through the passage of time' [19]. That general assertion is an inadequate foundation for a likelihood of actual prejudice. That is particularly so in the absence of a direct and positive statement that he will give evidence and call other witnesses at trial and how the delay attributable to a joint trial would impact on the subject matters they would address.

34 Having regard to the evidence adduced by the parties, the court could not be satisfied on reasonable grounds that Mr Micalizzi was likely to be prejudiced in the trial because of the joint trial. Although delay may cause prejudice which can enliven the court's discretion to order separate trials it, does not do so in the circumstances of this case. I would uphold ground 1. As the discretion was not enlivened, grounds 2 and 3 do not arise for determination.

35 I should add for the sake of completeness that the first respondent accepted that the circumstances did not give rise to any claim for undue delay at common law as explained by the High Court in Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, or to a claim for a permanent stay under s 76 of the Act.

36 I would allow the appeal, set aside the order for separate trials made on 1 April 2010 and dismiss the first respondent's application under s 133(4) of the Act.

37 OWEN JA: I have seen the reasons that McLure P proposes to publish. I agree with her Honour's conclusion that the appeal should be allowed and that the order for separate trials ought to be set aside. I also agree with her Honour's reasons for reaching that conclusion.

38 The question in this appeal is whether the discretion available under s 133(4) to order separate trials was enlivened. On the evidence presented to the primary judge that question had to be answered in the negative. It follows that the discretion whether or not to make such an order did not arise for determination and thus has not been dealt with in this appeal. The matrix of factors that can properly be taken into account in the exercise of the discretion may arise for consideration at some time in the future.

39 MAZZA J: I agree with McLure P and Owen JA that ground 1 of the appeal must be upheld and the appeal allowed. I respectfully agree with McLure P's construction of s 133(4) and (5) of the Criminal Procedure Act 2004 (WA).

40 Further, I agree with McLure P and Owen JA that on the evidence that was presented to Martino ACJDC the discretion to order separate trials under s 133(4) of the Act was not enlivened. However, further lengthy delay in bringing the accused to trial may give rise to prejudice in the trial. In the present case, it is conceivable that the issue may arise again when it becomes clearer how long it will be before Mr Santos can be returned to Western Australia for a joint trial and whether Mr Micalizzi can demonstrate actual and not assumed prejudice in the trial itself.