Court of Appeal (WA)|2009-08-25|Before: Mr J, Miller JA, McKechnie J, Lure JA, Pullin JA, Kechnie J

THE STATE OF WESTERN AUSTRALIA -v- RUSSELL [2009] WASCA 154 (25 August 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- RUSSELL [2009] WASCA 154

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Joint trial - Application for separate trials - First respondent charged with wilful murder - Second respondent charged as an accessory after the fact of wilful murder - Whether first respondent would be prejudiced by joint trial - Whether charge of accessory after the fact when charged with principal offence should be separately tried - Whether trial judge could have been satisfied of likelihood of prejudice - Whether any likelihood of prejudice could be guarded against by a direction to the jury - Criminal Procedure Act 2004 (WA) s 133(4), s 133(5)

Criminal law - Appeal - Appeal against order for separate trials - Criminal Appeals Act 2004 (WA) s 26(3)(a) - Principles to be applied

Criminal Code (WA), s 31(3) (repealed), s 31(4) (repealed), s 278 (repealed), s 279, s 562(1)

Matter remitted to next available Supreme Court status conference

Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334

Buggy v The Queen (1961) Cr App R 298

Denton v Bodycoat [2000] WASCA 424

Mansell v The State of Western Australia [2009] WASCA 140

P (a child) v The Queen (Unreported, WASCA, Library No 950469, 7 September 1995)

Quartermaine v The State of Western Australia [2008] WASCA 22

R v Grondkowski [1946] KB 369

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

The State of Western Australia v Osborne [2007] WASCA 183

Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302

3 MILLER JA: This is an appeal under s 26(3)(a) of the Criminal Appeals Act 2004 (WA). The appellant appeals against an order of McKechnie J (the trial judge) made on 11 June 2009, when his Honour ordered that there should be separate trials of the first and second respondents on indictment 163 of 2008.

4 The respondents were jointly indicted on indictment 163 of 2008 in the following way:

(1) On 7 February 2008 at Rivervale Cameron James Russell wilfully murdered Carli Anne Shaw

And that [KLA] on 7 February 2008 at Rivervale, knowing that Cameron James Russell had committed the said offence assisted him in order to enable him to escape punishment.

(2) In the alternative to Count (1), on 7 February 2008 at Rivervale Cameron James Russell murdered Carli Anne Shaw

And that [KLA] on 7 February 2008 at Rivervale, knowing that Cameron James Russell had committed the said offence assisted him in order to enable him to escape punishment.

5 The first respondent was thus indicted as a principal offender and the second respondent as 'an accessory after the fact'. The offence alleged against the first respondent was the offence of wilful murder, as it was then contained in s 278 of the Criminal Code (WA). In the alternative, the first respondent was charged with the offence of murder, as it was then contained in s 279 of the Criminal Code. The second respondent was charged with being an accessory after the fact to wilful murder or, in the alternative, to murder. The offence alleged against her was pursuant to s 562(1) of the Criminal Code, which provides that any person who becomes an accessory after the fact to an indictable offence is guilty of a crime.

6 The essential facts of the case are agreed. Those facts are set out in par 3 - 9 of the appellant's written submissions in the following terms:

The First Respondent (then aged 24) and the Second Respondent (then aged 17) were boarders in the home of Ms Shaw (then

aged 27) at Unit 2, 138 Armadale Road, Rivervale. Ms Shaw was a single mother of two young children, aged 5 and 2.

In broad terms, it is alleged that the First Respondent wilfully murdered Ms Shaw on 7 February 2008 in the home, and that he significantly or substantially caused or contributed to her death by stabbing her with a knife or knives. It is further alleged that he later dumped her body in Stirling Crescent, Hazelmere, the body being set alight and burned.
In the police interview conducted at 8.00pm on 8 February 2008, the First Respondent initially denied having assaulted or argued with Ms Shaw, and claimed that she had left the premises and not returned and he did not know what had happened to her.
He later admitted in the interview that he had argued with her, and that he must have stabbed her with knives. He admitted dragging her body into the shower, where he left her for 3 - 4 hours, and that he later disposed of her body.
He claimed to have sought the assistance of an acquaintance, Aaron Perich, who he claims set the body on fire. Perich, in his witness statement and anticipated evidence at trial, denies this and claims that he subsequently was taken to the location of the body, which was already alight, and that he saw the First Respondent pour further accelerant (petrol) on it.
It is alleged that the Second Respondent assisted the First Respondent after he had killed Ms Shaw, by cleaning up the murder scene and helping the First Respondent to place Ms Shaw's body in a doona. She subsequently accompanied him to the location where the body was dumped, and later lied to Ms Shaw's de facto partner, friends, associates and police about Ms Shaw's whereabouts and what had happened to her.
In the first part of the police record of interview conducted at 9.55pm on 8 February 2008, the Second Respondent claimed that Ms Shaw had left the home and not returned. However, in the second part of the interview, she began to tell the police about what she had seen and heard in the house at the time Ms Shaw was killed and thereafter. The interview was terminated, however, at the request of her step-father who was present at the interview.

7 Apart from this agreed statement of facts, the court has been provided with transcripts of the video records of interview between investigating police and the two respondents. The transcript of the video record of interview with the first respondent reveals that it began at 8.00 pm on 8 February 2008 and ultimately concluded at 10.02 pm on that date. The transcript occupies 85 pages.

8 There were three video records of interview with the second respondent. They began at 9.55 pm on 8 February 2008 and continued in succession until 12.20 am on 9 February 2008. The transcripts of the three records of interview occupy 58 pages.

9 Each of the video records of interview has been edited, presumably by agreement between the prosecution and defence. There are still aspects of the video record of interview of the first respondent which may provoke objection. However, at the present time, the edited versions of the video records of interview, when added to the statement of facts prepared by the appellant, constitute the totality of the evidence before this court.

Video record of interview of first respondent

10 During the course of the first respondent's video record of interview, he at first denied having assaulted or argued with the deceased on the previous day. He said that he paid no attention to what she did. When it was put to the first respondent that a person had given information which led investigating police to a burnt body, the first respondent simply said that he did not want to know about it. He insisted that the deceased was missing and that was all.

11 After a short break in the interview, between 8.57 pm and 9.12 pm, the first respondent explained to the investigating detectives what had happened. He said that what had occurred the previous evening had begun in the following way:

A. Yep. And, um, dunno what the fuck - she just started on - cos we took two potatoes or something for our dinner and I was like, 'Well fuck me, you know, we do all the cleaning and everything like that,' and then she just skitsed out, man, and started fuckin' - and then I dunno, man, I dunno - I dunno, she just - I dunno she was out in the kitchen and she started throwin' things at me, then I went in there and then, I dunno, man.

Q. What lead to the argument?

A. Oh, cos we took two potatoes out of her big arse bag when she steals mince and shit like that off us and, I dunno, it was pathetic, mate, you know what I mean.

Q. Mm.

A. I was just like, 'Whatever,' you know, and then I started walkin' off to my room and that's when she started throwin' shit at me.

...

Q. Sorry, Carly was throwin' things at you. What - what was she - - -

A. Oh, cups, plates, fuckin' everything from the - she doesn't do her dishes and shit so - - -

Q. Mm.

A. - - - and then when I walked in there she (indistinct) couple of knives and then I don't remember and I come too with (indistinct) and her on the floor and that was that.

Q. So tell me about that.

A. I don't remember.

Q. What - what - what about the knives?

A. Oh, she had - she had picked up a couple of knives when I started walkin' into the kitchen.

Q. Mm hm.

A. And then I don't remember. I had knives in my hand like - her knives that she had, I had in my hands afterwards.

Q. Mm hm.

A. And that was that. And I was freakin'. I didn't know what to do then.

12 When pressed to explain what had happened with the knives, the first respondent said:

A. I don't know what happened, man, she was just - I had 'em and she was on the ground and that was it. The last thing I remember she had 'em and we were standin' face to face and then I come too with her kids lookin' at me. And that was that. She was - I dunno, gone.

Q. Okay, when you say gone - were you - with the - you had knives in your hand did you?

A. Yeah.

Q. Okay. And what did you do with the knives in your hand?

A. I don't know (indistinct) cos they were covered in blood. I don't remember, man.

Q. Do you remember being covered in blood?

A. I wasn't covered in blood.

Q. Who was?

A. Um, she was.

Q. She was.

A Yes.

Q. Cameron, did you stab her with the knives?

A. I think so. I think so, I don't remember. All I know is that she had the knives and then I had the knives and they were covered in blood and that was it. That's all I remember. I don't remember punchin' her, I don't remember doin' anything, just coming too with her on the ground and the knives in my hand and it had all the blood and everything all over her.

13 In response to further questions, the first respondent said that he must have grabbed a knife from each of the deceased's hands. He said that he did not know where he had stabbed the deceased, but that it was '[p]robably everywhere'. He said that the second respondent was standing nearby.

14 When the first respondent was asked whether he had intended to kill the deceased, he said, 'never, ever' and explained that his intention was to ask the deceased what her problem was and to 'stop throwin' shit ... probably to restrain her'.

15 The first respondent explained that the incident had occurred in the kitchen. He then took the deceased to the shower and 'chucked her in the cold shower', but said that she 'didn't wait [sic wake] up and snap out of it'. He intended to get his friend Aaron to assist him. He covered the deceased with a blanket and then put her over his shoulder and put her in the boot of the vehicle belonging to the second respondent. He then drove away with the second respondent, their child and the deceased's children in the vehicle. It was his intention to go to Aaron's home, but there was some trouble with the vehicle. The first respondent dumped the body of the deceased where the vehicle had broken down, then he managed to restart the vehicle and took the second respondent and the children to Aaron's home. He 'went for a drive' to look for Aaron and the vehicle broke down again. Eventually, he located Aaron and the two of them went to the vehicle, syphoned out fuel and then set fire to the body of the deceased. The first respondent said that it was Aaron who actually 'set [the body] alight'. He said that only he and Aaron were involved in the burning of the body.

16 In the course of further questioning, the first respondent was asked about the incident in which the deceased was stabbed. He was asked whether he had any injuries. His response was:

A. (indistinct) I think I had this maybe - I dunno. I don't - didn't get nothin'. I fight cunts with knives all the time so it's not as if it's hard or anything like that. Just they make me snap and pull weapons and shit out.

17 The first respondent then admitted to having cleaned up the house. He said that Aaron had given him some bleach and that he had cleaned it up. He said that the second respondent had helped him.

18 When further questioned about the burning of the body, the first respondent said that it was Aaron's idea to burn the body. He contended that Aaron enjoyed it. When it was put to the first respondent that Aaron had said that when he got to the location where the deceased's body was found she was 'alive' [sic alight], the first respondent denied that this was so.

19 At the conclusion of the video record of interview, the first respondent was asked whether he wanted to give any explanation for the events that had occurred. He said:

A. Don't know but I wish it had fuckin' never happened. I wish I'd never come out of the fuckin' room, man.

Q. Mm.

A. I don't know, man. There is no explanation for it. She attacked me, I mean, man, that I don't know, man. I don't know, man

Video records of interview of the second respondent

20 When the second respondent was interviewed, she said that on the preceding night, from about 10.00 pm, she was asleep in 'Steph's house' and the first respondent and Aaron were outside working on the car. She said that she and the first respondent later went home to sleep. She also said that she knew nothing about what had happened to the deceased. When asked whether she was covering up for the first respondent, she said that she was not. She denied that she was scared of the first respondent. She said that he did not intimidate her.

21 Later (in the course of the second video record of interview), the second respondent said a good deal more. Her account of what had occurred was as follows:

[A]fter I'd cooked dinner, Cameron, and, Carly had a fight - it was like - it was over food - I don't know why, and, then, I heard Chynese screaming, and, I went into the kitchen, and, I saw Carly's legs on the floor, and, then, I just grabbed the kids, and, went into - back into the lounge room, and, then, um, we - I stayed in there with the kids.

Q. Okay. Where was Cameron at that time?

A. Um, he was in the, um, in the kitchen, and, then he went into the bathroom.

Q. Okay, so, there was an argument?

A. Yep.

Q. And, could you hear what was happening with the argument?

A. Yeah, well, I just heard them both yelling.

Q. Yep, and, do you know anything of, or, can you remember what they were saying?

A. It was just over food, because, Carly, um, I used two potatoes of Carly's, and, she had a go at us for using that, because, we didn't ask her, because, she always uses our stuff without asking us.

22 The second respondent added that both the first respondent and the deceased were angry. She said that she remained in the lounge room with the children, but then went in. She described what she saw:

Q. Okay. So, you've gone in there, and, where was Cameron?

A. Um, on the corner, next to the, um, oh, between the laundry, and, the kitchen.

Q. Yep, and, where was Carly?

A. On the floor.

Q. Okay. At what part was she lying on - like which part was - she the laundry, or, the kitchen?

A. Both, I guess, I just saw her legs.

Q. Okay, so, you couldn't see the rest of her body?

A. Nah.

Q. And, well, did you see anything else?

A. Nah.

Q. What was Cameron doing?

A. Standing over her.

Q. What did Cameron have?

A. Nothing that I saw.

Q. You didn't see him holding anything?

A. Nah, cos, I went straight into the lounge room.

23 Later, the second respondent said that when she saw the deceased lying on the floor there was blood. The deceased was on her stomach. She had a towel on her head. She was not moving. The second respondent said that she saw the first respondent take the deceased to the bathroom. The second respondent said that she went back to the lounge room whilst the first respondent remained in the bathroom with the deceased. She did not know for how long, but it was for a while. She then said:

A. Ah, yeah, he put her in the shower, and, then, went back out, and, then, she was under there for ages, and, then, um, we wrapped her up, so she stopped bleeding - or, he told me to help him wrap her up, because, he's only got one hand, and, then, I just kept - I just kept on going back, and, forth, because, the babies were crying in there.

...

A. Um, I kept on going back, and, forth from like, the bathroom to the lounge room, and, I mopped up the floor, and, then, ah, and, then I had to help him wrap her up.

Q. Okay. What did you wrap her up with?

A. Um, a, um, a blanket cover.

24 The second respondent explained how she had helped wrap the deceased in a 'blanket cover'. She then said that the first respondent had got some plastic from somewhere. It was at this point that the second respondent's stepfather, Graham Leslie Hanson, who had been present during the course of the interviews, told the second respondent that he thought she had better talk to a lawyer. When asked by investigating detectives whether that is what she wished to do, Mr Hanson answered in the affirmative. The following exchange then occurred:

MR HANSON: Because you're starting to sound like you're an accessory to the fact.

A. Only because I had to do it.

25 The second respondent thus made two references to having to help the first respondent. The first was that she said 'I had to help him wrap her up' and the second that she had 'had to do it'.

26 The trial of the respondents was listed to commence in the Supreme Court on 15 June 2009. On 11 June 2009, counsel for the first respondent made an application for separate trials, so that the first respondent should be tried separately from the second respondent. Counsel for the first respondent informed the trial judge that he had received a written note from counsel for the second respondent which made it apparent that the second respondent would be 'running a defence of duress' and it was upon that basis that the application was brought. The trial judge made the observation that he realised that duress was likely to be a possibility 'from the moment [he] looked at the brief'. Counsel for the second respondent agreed, saying that he thought that it 'would have seemed obvious from the start' that duress was a possible defence for the second respondent. Counsel for the prosecution said likewise, making reference to the second respondent's statement that she did what she did 'only because I had to do it'.

27 There was then argument before the trial judge as to whether the trials should be separated pursuant to the provisions of s 133(4)(a) of the Criminal Procedure Act 2004 (WA) and whether, in deciding that question, the likelihood of prejudice to the first respondent could be guarded against by a direction to the jury under s 133(5) of the Criminal Procedure Act.

28 The trial judge ruled that separate trials should be ordered. His Honour accepted that it was a reasonable probability that the second respondent would be advancing a defence of duress and said that, if she did so, she would be entitled to impugn the first respondent's character and lead evidence of acts of violence on his part. His Honour said:

If she does do so, as I see is a reasonable probability, then she would be entitled to impugn the accused Russell's character and lead evidence of acts of violence on the part, either if they are shown in the brief or through evidence of convictions, and he has some for violent offences, or of course through her own evidence, giving evidence to support her evidence, if given, of her apprehension of violence.

This, in my view, would undoubtedly be prejudicial to the accused because it is not evidence that would normally be led in a case of murder if he was standing trial by himself. The question then is, having been satisfied that he is likely to be prejudiced because the jury would hear details of his violent character - when I say will, most probably will hear details of his violent character which would not otherwise be admissible in a trial by himself - the question becomes whether, in the words of the section, it is open to decide that the likelihood of the prejudice can be guarded against by a direction to the jury, and I may so decide irrespective of the nature of the offences charged and even if the evidence on some charges is inadmissible or the evidence against one of the accused is not admissible against the other.

29 After making reference to a number of authorities, the trial judge expressed the view that whatever might be the position in relation to joint trials when persons were charged as principal offenders, the situation was:

[D]ifferent when one person is not accused of the crime but is accused of providing assistance afterwards as an accessory after the fact.

30 The trial judge concluded that he could not be satisfied that directions could be given to the jury to guard against any prejudice to the first respondent. He said that he considered that there was:

[A] risk of irremediable prejudice which could not be minimised sufficiently by any direction that I could give in the very unusual circumstances of this trial and therefore I will make an order for separate trials.

31 The appellant appeals with leave against the decision of the trial judge. The appeal is brought under the provisions of s 26 of the Criminal Appeals Act. Section 26(3)(a) provides:

(3) If 2 or more accused are charged on indictment with an offence -

(a) the prosecutor may appeal to the Court of Appeal against any order made by a judge of a superior court that there be a separate trial of any of the accused;

32 Section 26(5) provides that any appeal must be brought within seven days after the date of the decision and before the day on which the accused's trial is listed to start. In the present case, those requirements are satisfied.

The learned Judge erred in law in deciding that 'there is a risk of irremediable prejudice which could not be minimised sufficiently by any direction that he could give...' and thereby making an order for separate trials.
The learned Judge erred in law by failing to adequately consider the provisions of s.133(5) of the Criminal Procedure Act 2004. Had he done so he would have concluded that any likelihood of the First Respondent being prejudiced could be guarded against by a direction to the jury.
The learned Judge erred in law in concluding the fact that the Second Respondent is charged as an accessory after the fact rather than as a principal offender militated against a joint trial of the Respondents.
Further, the learned Judge erred in the exercise of his discretion under s.133(4)(a) of the Criminal Procedure Act 2004 by ordering separate trials.

34 Before dealing with each of the grounds of appeal, it is necessary to set out the relevant provisions of the Criminal Procedure Act. The starting-point is s 85 of the Criminal Procedure Act, which sets out the formal requirements of indictments. Those requirements are contained in sch 1 div 2 of the Act. Clause 7(3)(b) of sch 1 div 2 is in the following terms:

(3) A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences -

...

(b) are alleged to arise substantially out of the same or closely related acts or omissions;

It is pursuant to this provision that the indictment in the present case is framed.

(4) A prosecution notice or indictment may charge 2 or more persons with -

...

(d) being accessories after the fact to the one offence, although at different times,

and may do so whether or not the principal offender is one of the persons so charged or is charged in the same prosecution notice or indictment.

Joined charges and accused to be tried together

...

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

37 Section 133 of the Criminal Procedure Act provides, relevantly:

(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.

....

(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

...

(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,

38 Pursuant to s 133(7) of the Act, once an order for a separate trial has been made, the court must not start the trial unless it is satisfied that any appeal that has been instituted within the time period has concluded. In the present case, the trial has not taken place.

39 It is convenient to deal first with this ground, which contends that the trial judge erred in the exercise of his discretion under s 133(4)(a) of the Criminal Procedure Act by ordering separate trials. By s 133(4)(a), the trial judge had to first be 'satisfied' of likely prejudice to the first respondent before he could order separate trials. The discretion to order separate trials was only enlivened in the event that the trial judge was so satisfied.

40 To consider this question, it is, in turn, necessary to consider whether there was sufficient evidence before the trial judge in relation to the intended defence of duress.

41 The defence of duress, as it applied at the time of the commission of the alleged offence, was that contained in s 31(3) and (4) of the Criminal Code. Section 31(3) and (4) provided, relevantly:

A person is not person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances, that is to say -

...

(3) When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence;

(4) When he does or omits to do the act in order to save himself from immediate death or grievous bodily harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying of the threats into execution;

42 The provisions of s 31(3) of the Criminal Code were considered by Roberts-Smith JA in Denton v Bodycoat [2000] WASCA 424 and by the Court of Appeal in Quartermaine v The State of Western Australia [2008] WASCA 22. In the latter case, Beech JA (Pullin and Miller JJA agreeing) concluded at [39], after reference to a number of authorities, that s 31(3) contains only the objective requirement of reasonable necessity.

43 The defence provided by s 31(4) of the Criminal Code was considered by the Court of Criminal Appeal in P (a child) v The Queen (Unreported, WASCA, Library No 950469, 7 September 1995). Kennedy J (with whom Malcolm CJ and Pidgeon J agreed) expressed the view at 10 that the defence was one of 'restricted application'. His Honour said of s 31(4) at 9 - 10:

It clearly appears from the section, and it has been so held by Stanley J, with whom Townley and Stable JJ agreed, in R v Pickard [1959] Qd R 475, at 476, that the word 'immediate' qualifies the words 'death' and 'grievous bodily harm'. The word 'immediate', Stanley J considered, obviously cannot mean some wholly indefinite future time and place and must relate to some very short time after the doing or the omission of the act in question. The threat itself must be to inflict death or grievous bodily harm immediately if the person concerned fails to do (or omits to do) the act in question. It is also clearly the case that the compulsion or coercion must be operative at the time of the doing of the act or the omission to do the act - see R v Pickard (supra), at 477 - 478. The defence is one of restricted application - see O'Regan, Essays on the Australian Criminal Code, p 112.

44 This is not the occasion upon which to analyse the extent to which the defence of duress under s 31(3) or (4) of the Criminal Code may be applicable to the facts of a particular case. It is sufficient to say that, in the present case, there was nothing in the evidence before the trial judge to suggest a proper foundation for the defence. At most, there was a statement by the second respondent in the course of her video record of interview, in response to the suggestion that she was 'sounding like an accessory to the fact', that 'I had to do it'. She had previously said, 'I had to help him wrap her up'.

45 It can be seen immediately that the second respondent did not suggest in any of her answers either that she performed the acts in question in order to resist actual and unlawful violence threatened to her, or that she did the acts in question in order to save herself from immediate death or grievous bodily harm threatened to be inflicted upon her by the first respondent and in circumstances in which she believed herself to be unable otherwise to escape the carrying of the threats into execution.

46 The trial judge recognised at one point during argument that '[w]e are all speculating'. This was correct. It was speculative to say that on the evidence before the trial judge there was a sufficient foundation for the defence of duress to be raised by the second respondent. Much more was required in terms of evidence before it could confidently be said that the second respondent would be 'advancing ... a defence of duress'.

47 It is no answer to say that the parties to the proceedings accepted that the defence of duress would be advanced. Such acceptance was acceptance that on the facts a conclusion of law was open. The court is not bound by it. In Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, Kirby J at [143] expressed the relevant principle in the following terms:

Inadmissibility of erroneous legal concessions: Like the courts of South Australia, this Court is not in a position to accept an incorrect understanding of the law. It cannot accept an agreement of the parties that does not reflect the binding law of qualified privilege, moulded to the Constitution where it applies. The Constitution cannot be ignored as a result of mistakes or misunderstandings of the parties or judges in earlier proceedings. Subject to law, parties can agree between themselves as they like. But if they invoke the courts of this country they cannot expect the courts to go along unquestioningly with their erroneous understandings of the law.

48 In my opinion, the conclusion reached by the trial judge that the second respondent had open to her the defence of duress within the meaning of s 31(3) or (4) of the Criminal Code was not based on any facts found or agreed, but was purely hypothetical. In Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ made it clear that courts cannot make orders on purely hypothetical facts. At [49], their Honours said:

As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy.

49 In my opinion, the determination made by the trial judge was based on hypothetical facts. There was no evidence before him to establish a foundation for the defence of duress for the second respondent. At most, the parties had agreed an understanding of the law which may or may not have been correct.

50 It follows, in my opinion, that the discretion to order separate trials was never enlivened. Ground 4 of the grounds of appeal is thus made out.

51 The appellant has suggested in its written case that these two grounds can be dealt with together.

52 The trial judge was of the opinion that because there was a reasonable probability that the second respondent would be advancing a defence of duress (as to which I have already indicated there was no foundation laid for such a defence), she would be entitled to impugn the first respondent's character and lead evidence of acts of violence on his part, either by way of evidence ('if they are shown in the brief') or by reference to previous convictions.

53 The first respondent did have a number of previous convictions. They included a number of traffic matters, but also, relevantly, common assault, burglary, assaulting a public officer, breach of a violence restraining order and assault occasioning bodily harm. It is questionable whether convictions for burglary would demonstrate a propensity to violence. The extent to which the convictions for assaulting a public officer, common assault, assault occasioning bodily harm and breach of a restraining order would demonstrate a propensity to violence may need to be the subject of evidence, but for the purposes of the appeal it may be taken that this was so.

54 The appellant has conceded in written submissions that the first respondent did have a number of prior convictions for offences 'of a violent nature' in his criminal history, being the convictions for common assault, assaulting a public officer, breach of a violence restraining order and assault occasioning bodily harm. The appellant has also conceded that the second respondent would be entitled to lead evidence of the fact of those convictions.

55 In my opinion, the concession that the second respondent would be entitled to lead evidence of the fact of the first respondent's convictions may have been too readily made. It may be arguable whether the fact of those convictions is admissible, depending upon what evidence is given by the second respondent. It is speculative to embark upon a consideration of what the second respondent may say. One possibility is that she may say that she was aware of the respondent's violent nature because of his convictions. However, that is a hypothetical consideration (see Bass v Permanent Trustee Company Ltd at [49]). In the absence of evidence (or an agreed statement of facts on the issue), it is not something that can be taken into account.

56 I have already concluded that the trial judge was unable to be 'satisfied' that the first respondent was likely to be prejudiced in his trial by reason of the fact that he was being jointly tried with the second respondent: Criminal Procedure Act s 133(4). The trial judge could only be satisfied of likely prejudice on facts agreed or proven. He could not act on speculation or hypothesis (see Bass v Permanent Trustee Company Ltd at [49]).

57 Because I have found that the trial judge erred in concluding that he was satisfied that the first respondent was likely to be prejudiced in a joint trial with the second respondent, it is strictly unnecessary to deal with the provisions of s 133(5) of the Criminal Procedure Act. However, if I had not come to that conclusion, it would be necessary to consider the provisions of s 133(5) of the Act; namely, whether any likely prejudice could be guarded against by a direction to the jury.

58 In my opinion, a direction to the jury could have overcome any potential prejudice to the first respondent occasioned by the admission into evidence of his prior convictions for violent offences.

59 The trial judge did not give any reasons why he considered that there was a risk of irremediable prejudice which could not be minimised sufficiently by a direction to the jury. His Honour simply said that the risk could not be overcome by such a direction.

60 The first respondent would suffer prejudice in consequence of admission into evidence of details of his prior convictions for offences of violence. In many joint trials, there will be prejudice occasioned to a co-accused (see The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 per Buss JA at [61] and cases cited therein).

61 In Bowen, Pullin JA said of s 133(5) of the Criminal Appeals Act at [30] - [32]:

In Webb [Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41], Toohey J referred to the prima facie position that there should be a joint trial. That is so under the CPA because of cl 9 of Sch 1. The prima facie position is not easy to displace: Holden (1990) 52 A Crim R 32 at 44; R v Avis & Ors [[2000] WASCA 281] at [33]. This is because of the strength of the policy considerations which have justified the requirement that there should be a joint trial unless otherwise ordered.

The provision in s 133(5), which provides that it is open to the Court to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury, is soundly based in principle because, as Barwick CJ observed in Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20 at 22, in the administration of the criminal law, it must be accepted until the contrary is demonstrated that the jury accept and faithfully apply the Judge's directions. This observation was approved by the Full Court of this State in Salehi v The Queen [1999] WASCA 279 and by the New South Wales Court of Criminal Appeal in Yuill (1993) 69 A Crim R 450.

However, it is necessary to keep in mind that some evidence may be so prejudicial that even with a full direction to ignore it, the prejudicial effect will remain. This was explained in Leaman (1987) 28 A Crim R 104 at 108 - 109 where Neasey J said (Underwood J concurring):

'A basic question faced by a trial judge considering whether to order a separate trial, or an appellate court considering whether a miscarriage of justice has occurred because he did not, always is whether the prejudicial effect of the inadmissible evidence is (or was) capable of being adequately neutralised by appropriate instructions to the jury. That question will usually involve two further issues, namely:

(1) Will an average jury be reasonably capable, as an intellectual exercise, of performing the task thus given them? And

(2) Is the prejudice likely to be so great in the circumstances that it would not be reasonable to expect the jury to leave the prejudicial evidence out of account against a particular accused even though it is inadmissible against him?'

See also R v Connell (No 1) (1992) 8 WAR 518 at 528.

62 In Bowen, the decision of a trial judge to order separate trials was reversed. The circumstances were that one accused intended to say that another was a drug dealer. Pullin JA at [41] was of the opinion that a clear direction would need to be given that none of the out-of-court statements by one accused provided any evidence against the other in the jury's consideration of the case against the other. They were statements which must be ignored when considering the case against that accused. His Honour said that he saw no reason why the jury would not be capable of performing the intellectual task of complying with such a direction.

63 In Bowen, Roberts-Smith JA (who agreed with Pullin JA) analysed s 133(4) and (5) of the Criminal Procedure Act and said at [3] - [8]:

[T]he discretion to make an order under s 133(4)(a) or (b) is enlivened only if the court is satisfied that the accused is likely to be prejudiced in the trial by reason of the fact that the indictment charges one or more other accused.

The words 'to so decide' in s 133(5)(a), (b) and (c) on their plain grammatical construction relate back to the words 'in deciding whether to make an order under subsection ... (4)'. They are disjunctive and each has independent operation (Donaldson v Western Australia [2005] WASCA 196; (2005) 31 WAR 122, [96] - [97]).

Although the word 'may' ('the court may order') imports a discretion, it is impossible to see how any discretion to make or not to make an order under either s 133(4)(a) or (b), could remain were the court to conclude under s 133(5)(a) that there was a likelihood of the accused being prejudiced in the trial, which likelihood could not be guarded against by a direction to the jury.

It is important to appreciate that s 133(4) presupposes an indictment charging more than one accused. In that circumstance, where one of those jointly charged is concerned that they may be prejudiced by a joint trial, that accused may apply to the court for an order under s 133(4). It is only if the court is satisfied the accused is likely to be prejudiced (notwithstanding any direction to the jury) that the court can make such an order. If the court is not so satisfied, the application must be dismissed and the (joint) indictment will stand.

I agree with Pullin JA that there is no room - and indeed no purpose - in the exercise of this statutory discretion for any consideration of administrative matters, such as court time and public expense, or even matters such as the possibility of inconsistent verdicts, forensic expedition, the interest of witnesses and the like. These are matters which bear upon the exercise of the prosecutorial discretion whether or not to charge multiple accused jointly. A decision having been made to present an indictment charging a number of accused jointly, the court will only order severance (in one of the ways contemplated in s 133(4)(a) or (b)) if satisfied an accused so charged is likely to suffer such prejudice from a joint trial, that it cannot be guarded against by a judicial direction.

Looked at in that way, it seems to me the section poses a stringent test to be met before such an order will be made, but where that test is met there can be no further factors to be taken into account and such an order must be made.

64 Applying the test so formulated by Roberts-Smith and Pullin JJA in Bowen, the question is whether, in the present case, prejudice which the appellant concedes the first respondent would suffer in consequence of evidence being adduced in relation to his prior convictions for offences of violence could be adequately guarded against by a judicial direction.

65 In my opinion, it could. It can confidently be said that a jury is capable of performing the intellectual task of complying with a direction that evidence of the first respondent's prior convictions for offences of violence is not to be used as evidence against him, but only to be used in considering the case against the second respondent. See Bowen per Pullin JA at [41]; The State of Western Australia v Osborne [2007] WASCA 183 per Wheeler JA at [39]; Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 per Steytler P at [65]; Mansell v The State of Western Australia [2009] WASCA 140 per Miller JA at [48] - [50].

66 In my opinion, the trial judge was in error to conclude that a proper direction could not be given to overcome prejudice that would be occasioned to the first respondent by reason of the admission into evidence of his prior convictions for offences involving violence.

67 I consider that grounds 1 and 2 of the grounds of appeal are made out.

68 This ground contends that the trial judge erred in law in concluding that because the second respondent was charged as an accessory after the fact rather than as a principal offender, this militated against a joint trial of the respondents.

69 As I have pointed out, the trial judge concluded that whilst principal offenders might properly be tried together, the situation is different when one person is not accused of the crime, but is accused of providing assistance afterwards as an accessory after the fact.

70 The trial judge's conclusion runs counter to English authority: Buggy v The Queen (1961) Cr App R 298 at 301 - 302.

71 The provisions of cl 7(4) of sch 1 div 2 of the Criminal Procedure Act contemplate that principal offenders and accessories after the fact may be charged in the same indictment.

72 The fact that one accused is intending to say that he or she acted under duress by the other accused (whether both are charged as principal offenders or as principal offender and accessory after the fact) is not of itself a valid reason for severing the trial of individual accused persons: R v Eriemo [1995] 2 Cr App R 206 at 211; R v Grondkowski [1946] KB 369 per Lord Goddard CJ at 372 - 374.

73 In my opinion, the trial judge was in error to conclude that there is a distinction to be drawn between 'ordinary' cases of accused persons charged as principal offenders and cases in which one accused is charged with being a principal, but the other an accessory after the fact. No authority was relied upon by the trial judge in reaching the conclusion he did, and, in my view, such authority as there is is to the contrary.

74 In my opinion, the appeal should be allowed and the decision of the trial judge ordering separate trials should be set aside. The respondents should appear before a judge of the Supreme Court at the next available status conference or mention day.

75 Section 133(1) of the Criminal Procedure Act makes it clear that the power to order a separate trial exists both before and during a trial. Where, in an application made prior to trial, there has been an order for separate trials or a refusal to order separate trials, s 26 of the Criminal Appeals Act provides a mechanism for an appeal against that order. The trial cannot commence until appeal proceedings have concluded: Criminal Procedure Act s 133(7)(b)(ii).

76 In most cases, the prosecution brief will provide sufficient material to enable an application for separate trials to be considered before trial. Often, the application will be made on behalf of an accused person because the depositions reveal evidence which can be said to be likely to cause prejudice to one or other accused. The prosecution case will contain that evidence, either from prosecution witnesses to be called, or from records of interview with accused persons. In such cases, an application for a separate trial can readily be made before the trial begins.

77 In other cases, it is apparent that it will not be until evidence is adduced that the question of likely prejudice to one or other accused can be determined. This will often be the case where (as in the present case) the evidence to be given by accused persons jointly indicted is unknown. There is no obligation upon an accused person to declare his or her hand. The depositions may suggest the possibility of certain lines of defence, but it will often be hypothetical to consider an application for separate trials until such time as evidence has been given. This necessarily means that sometimes an application will have to be made for a separate trial after the trial has begun. Hopefully, cases of that nature will be rare, but sometimes the interests of justice will necessitate that it be so.

THE STATE OF WESTERN AUSTRALIA -v- RUSSELL [2009] WASCA 154 (25 August 2009)

At a glance

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Judgment (134 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- RUSSELL [2009] WASCA 154 (25 August 2009)

Video record of interview of first respondent

Video records of interview of the second respondent

Legislation Cited (2)

Cases Cited (8)