Criminal law - Application for separate trial - Criminal Code s 624 - Whether out of court statements of co­accused will cause irredeemable prejudice to the accused - Principles to be applied in consideration of separate trials - Matters of public interest - Judicial direction inadequate to cure prejudice

Criminal law - Application to edit video record of interview - Whether statements demonstrate empathy with co­accused - Statements to be excluded for ambiguity

Application to edit video record of interview allowed

Attorney-General's Reference No 1 of 1977 (1979) WAR 45

R v Demirok [1976] VicRp 19; [1976] VR 244

R v Middis, unreported; SCt of NSW; Library No 70412; 27 March 1991

Symss v The Queen [2003] NSWCCA 77

R v Conlon (1982) 30 SASR 176

R v Farrell & Cotton (1990) 48 A Crim R 311

R v Jones & Waghorn (1991) 55 A Crim R 159

Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41

2 The State has presented an indictment that on 16 July 2003 at Innaloo, Scott Jeremy Oblak and David Alan Tolliday wilfully murdered Celeste Assunta Vitale. Oblak has applied for a direction that his trial shall be held separately from the trial of Tolliday. That application is supported by Tolliday, but opposed by the State.

3 Section 624 of the Criminal Code provides that when two persons are charged in the same indictment the court may direct that the trial of one of them shall be had separately from the trial of the other.

4 The basis of Oblak's application is that on the trial of the accused, the State intends to lead evidence of out of court statements made by Tolliday to the effect that Oblak stated that he intended to kill the deceased, that Oblak had attacked the deceased, that Oblak had told Tolliday he had stabbed the deceased four times and that Oblak had concealed the body of the deceased with the assistance of Tolliday. At the trial of the accused, those statements are admissible against Tolliday but not against Oblak. Counsel for Oblak submits that the evidence of the out of court statements by Tolliday is seriously prejudicial to Oblak and a direction to the jury by the trial Judge could not overcome the prejudice to Oblak from their trials being heard together.

5 Section 624 of the Criminal Code confers on the court a discretion to order separate trials. There are no statutory criteria for the exercise of the discretion. The discretion to order separate trials must be exercised judicially and in its exercise the court must consider the interests of justice as well as the interests of the accused.

6 Tolliday has made out of court confessional statements to the police that contain material implicating his co-accused, Oblak. The contents of those statements are evidence against Tolliday but not against Oblak. The application for separate trials is brought on the basis that Oblak will be irremediably prejudiced if the jury hears these statements. The courts have typically resisted this argument and have consistently said that in general the prejudice is capable of being avoided by a clear direction to the jury as to the use that may be made of the confessional material. In the rare case where the prejudice is inescapable, the proper course is to order separate trials: Attorney-General's Reference No 1 of 1977 (1979) WAR 45. If a direction would be inadequate to cure the prejudice to the co-accused, separate trials must be ordered: Attorney-General's Reference No 1 of 1977, at 47 - 48, R v Demirok [1976] VicRp 19; [1976] VR 244.

7 In Symss v The Queen [2003] NSWCCA 77, the appellant and his co-accused had each been tried on three counts, including murder. On that count the appellant was found guilty and his co-accused was found not guilty of murder, but guilty of manslaughter. The appellant's grounds of appeal included that the trial Judge erred by refusing to grant the appellant a separate trial. In the course of refusing the application for a separate trial the trial Judge had said, "This is the quintessential cut-throat defence case in which each of the accused has given versions of the incident giving rise to the charge to police which implicate the co-offender and exculpate himself." Sheller J, with whom James J and Smart AJ agreed, referred to R v Middis, unreported; SCt of NSW; Library No 70412; 27 March 1991, in which Hunt J said on the question of whether there should be separate trials:

1. 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

2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and

3. where there is a real risk that the weaker Crown case against the appellant 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."

8 A determination of whether separate trials should be ordered in this case requires a consideration of the nature of the State case against each accused and the out of court confessional statements made by Tolliday.

9 The State case against the accused was outlined in the State's outline of submissions. The prosecution case is that Oblak inflicted the stab wounds from which the deceased died and that Tolliday aided Oblak. Both accused were present in an isolated bushland area for a period of approximately 2 hours, during which time the offence was committed. The State says there is abundant evidence that Oblak had a relationship with the deceased although at the time of the alleged offence they were no longer living together. Forensic evidence establishes that at the time of her death the deceased was approximately 16½ weeks pregnant and that Oblak is the father of the unborn child, to a probability of 99.96 per cent. The pregnancy became a source of angst for Oblak and his fear that he would not have access to the child is the motive for the offence, although that applies to Oblak only. Tolliday was the best friend of Oblak and went along with events in the knowledge that Oblak intended to kill the deceased.

10 Oblak came from the Meckering area, where he lived, to Perth on the date of the alleged offence and contacted the deceased by telephone, arranging that they should meet at the Innaloo cinema complex. When she left to meet with Oblak, the deceased told her brother, David Vitale, that she was going to meet Oblak at the Innaloo cinemas and sort something out. She did not return. Her brother was unable to contact her by way of her mobile phone the following day and ultimately her body was found in bushland approximately 6 weeks later. There is evidence to establish that both accused travelled about together in each other's company on the evening in question. Oblak telephoned from Stirling train station and the two obtained a taxi back to Tolliday's home before returning to the Stirling train station, where they met the deceased before the three proceeded to walk across bushland towards the Innaloo cinema complex.

11 On the relevant Wednesday evening, the two accused left Tolliday's mother's address in Craigie, Tolliday telling her that they were going to the movies in Innaloo. She dropped the two at Whitfords train station around 8 pm. Tolliday returned to the house for a very short time, about an hour later, and that is broadly consistent with the taxi journey. Some days later Tolliday's mother found a bloodstained T-shirt under his bed. Tolliday later told her that the T-shirt might be Oblak's, but that he knew nothing about it. Oblak purchased bus tickets in advance in relation to the return journey which both accused made the next morning from Perth to Northam, back to Oblak's residence.

12 The prosecution relies on two "Edwards" lies in the 10-page formal statement given by Oblak to the missing person investigation unit on 6 August 2003. In that statement Oblak said that on the evening in question he met with the deceased at the Innaloo cinema complex and had a disagreement with her there (when she did not reach the cinema in fact) and secondly that he was alone and not with Tolliday when he met with the deceased.

13 The State submits that the principal evidence against Tolliday consists of his admissions. The case against Oblak is a circumstantial case. It rests on opportunity, motive and Edwards lies.

14 The relevant out of court statements by Tolliday were made in the course of three video recorded interviews. The first took place at the offices of the major crime investigation unit on 26 August 2003. The second occurred at the Stirling train station and the bushland area, also on 26 August 2003. The third took place at the major crime investigation unit offices on 27 August 2003.

15 In the interview on 26 August 2003 Tolliday describes the movements of himself and Oblak. Tolliday also tells of arrangements made by Oblak to meet the deceased at Stirling train station. Tolliday describes the three of them walking from the train station into the bushed area. He describes Oblak and the deceased arguing about the baby. Tolliday then goes on to make statements to the effect that Oblak attacked the deceased and stated that he had stabbed her.

16 In the video taken at the Stirling train station and bushland area, Tolliday pointed out to the police where he said Oblak had killed the deceased. There is evidence that the following day the police found the body of the deceased in that area.

17 In his interview of 27 August 2003 Tolliday added to what he had said in his interview of 26 August. He said that Oblak had told him that he came to Perth with the intention of killing the deceased. Tolliday described Oblak's attack upon the deceased. The description is detailed, emotional and disturbing.

18 Some of the details described by Tolliday are corroborated by evidence that is admissible against both accused. For example, Tolliday says that Oblak said that he had stabbed the deceased four times. The post-mortem corroborates that the deceased was stabbed four times.

19 In my view, Oblak will be irremediably prejudiced if the jury hears the out of court statements by Tolliday. The prejudice would be so great that it could not be overcome by a direction from the trial Judge pointing out to the jury that the evidence is not admissible against Oblak and is to be disregarded by the jury in considering the case against Oblak.

20 The State submits that a strong direction would be required so far as Tolliday's admissions are concerned. I have considered the nature and extent of the directions that might be given to the jury. In my view, they would not be sufficient to prevent an injustice being caused to Oblak in a joint trial.

21 The case against Oblak is circumstantial. There is no direct evidence of what happened to the deceased between leaving Stirling train station and her body being found in the bushland area that is admissible against Oblak. There is a real danger that notwithstanding any direction from the trial Judge to the contrary the jury would be unable to avoid using, if only subconsciously, the out of court statements by Tolliday to fill in the gaps in the State's circumstantial case against Oblak. The videotaped interviews are extensive. The interviews lasted for approximately 1¾ hours, half an hour and 1 hour respectively. In addition to the matters I have referred to, Tolliday makes a number of statements reflecting the bad character of Oblak. They include that Oblak has inflicted violence, or "done damage", on people in the past. They include statements by Tolliday that he did what he did because he was scared of Oblak.

22 In considering an application for separate trials, the Court must have regard to matters of public interest. The matters of public interest may be summarised as follows. First, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. Those considerations are not of very great weight in this case. Secondly, it is against the interests of justice that there should be inconsistent verdicts and those interests require that where the accounts of accused persons differ or conflict, their differences should be resolved by the same jury at the same trial. Those considerations are not of as great weight in this case as in other cases. The case against each of the accused is quite different. The case against Tolliday is based principally on his admissions. The case against Oblak is a circumstantial case. A jury might consistently find Tolliday guilty based on his own admissions and find Oblak not guilty on the basis that the circumstantial evidence is not sufficient.

23 Thirdly, it has always been the policy of the law to reach finality as expeditiously as possible and not to permit the repeated retrial of the same issues. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials. If there are separate trials some witnesses will inevitably be required to give evidence at both trials. However, there is not a complete overlap of witnesses. Many of the witnesses to be called in the trial of Tolliday will not be required to give evidence at Oblak's trial because counsel for Tolliday requires the witnesses to give evidence whereas counsel for Oblak does not. This consideration is not as of great weight as in some cases.

24 In my view, the predominant consideration in the circumstances of this case is that if there is a joint trial Oblak will be irremediably prejudiced.

25 For those reasons, I direct that the trial of Oblak shall be had separately from the trial of Tolliday.

26 Tolliday has applied to the Court for a ruling that a part of the video record of interview of 26 August 2002 should be edited and not admitted in evidence at his trial.

27 Before setting out the part of the interview in question I will set it in context. Tolliday referred to a conversation with Oblak at Tolliday's house earlier in the day on which he said Oblak stabbed the deceased. Tolliday said that Oblak told him the deceased was pregnant. Tolliday said that it was in his memory that Oblak was the father so he gathered Oblak would have said that. Tolliday said he could not recall the exact words. The following exchange then occurred:

"Q. No, that's okay. No. I mean, as I said earlier, you know, all we want you to do is recall, you know, best you can. What about - did - did he say what he was going to do as far as the baby's concerned, as far as his - his responsibilities are concerned?

A. Um, no. Oh, like, she - he reckoned she wouldn't let him see - see the baby once it - once it was born and that.

Q. And how did he feel about that?

A. Pretty pissed. I would have been, if I wanted to see the baby and that, yes. You know.

Q. When you say 'pretty pissed', what - what do you mean?

A. I'd be pretty angry if I couldn't see my baby.

Q. Was he angry?

A. Yeah. Well, he didn't smash anything, that angry, but yeah, I'd say he would have been angry.

Q. How do you - how do you know?

A. I - I would be angry.

Q. Yeah. All right. So - okay. Did he say he was angry?

A. No.

Q. No? It's just that you're - the way you were thinking.

A. My point of view, yeah.

Q. Yup. Okay.

A. I'd be angry."

28 Counsel for Tolliday submitted that the evidence set out is speculative and irrelevant. It is said that Tolliday was speculating about how Oblak felt about the situation.

29 The State submits that what Tolliday has said concerns the critical issue of motive. The State submits that Tolliday's answers are probative in that, although the interview is asking as to Oblak's feelings, Tolliday's empathy with the co-accused is significant, given that the prosecution case is that Tolliday has aided Oblak.

30 The first question asked by the interviewing police officer was: "How did he feel about that?" Tolliday replied: "Pretty pissed. I would have been, if I wanted to see the baby and that, yes. You know." It is ambiguous whether Tolliday was saying that Oblak was pretty pissed, that is, Tolliday's observations of Oblak led Tolliday to that conclusion, or whether Tolliday was in the course of the interview speculating how Oblak had felt about the matter. That he was speculating is perhaps reinforced by the next question and answer, that is when asked what he meant he said: "I'd be pretty angry if I couldn't see my baby." Tolliday was then asked: "Was he angry?" Again, his answer is ambiguous. Tolliday might be understood to be saying that from his observations he concluded at the time that Oblak was angry or he might be understood to be saying that at the time of the interview he speculates that Oblak would have been angry.

31 The 6th Australian edition of Cross on Evidence refers to the problem of ambiguous admissions at par [33735] on page 1020. It is there said that:

"[ambiguous admissions] have been held liable to rejection on discretionary grounds; yet if they are genuinely ambiguous the prosecution will have failed to establish that they are in truth admissions at all, and they should be excluded as a matter of law, not discretion."

32 In my view, the statements by Tolliday are ambiguous. He might be stating his state of mind at the time of his conversation with Oblak, that is he believed Oblak was angry, or he might be stating his state of mind at the time of the interview with the police, that is he thinks Oblak would have been angry on the day of his conversation with Oblak because he (Tolliday) would have been in similar circumstances.

33 The State relies upon the fact that Tolliday empathised with Oblak in the situation Oblak was then in. However, that is only relevant if Tolliday experienced that empathy on the day of his conversation with Oblak. In my view, it is ambiguous whether or not he did so. In those circumstances, Tolliday's statements are not admissions and should be excluded as a matter of law.

34 I direct that that part of the interview commencing with the question: "And how did he feel about that?" and concluding with the words of Tolliday: "I'd be angry," are inadmissible and should be edited from the video of the interview to be tendered in evidence.