Joint trials

Gibbs CJ, Aickin, Wilson and Brennan JJ (allowing the Crown’s appeal against the respondents’ acquittal on appeal)

1. The respondent John Edward Darby Victoria on a charge that at Melbourne on 17 February 1978 they unlawfully conspired together to rob, whilst having with them a firearm, one Vladoslav Gregurek of certain money. The trial proceeded for ten days, and on 12 July 1980 the jury returned a verdict of guilty against each of the accused persons. They were each sentenced to a term of imprisonment, and the respondent was also fined the sum of $2,000.

2. Thereafter Thomas applied to the Full Court of the Supreme Court of Victoria sitting as a Court of Criminal Appeal for leave to appeal against his conviction. The application was successful. The Court gave leave, allowed the appeal, quashed the conviction and ordered that a verdict and judgment of acquittal be entered. The reason for his success lay in the Court's conclusion that while the evidence which was admissible against him established "an overwhelming case" to go to the jury that he conspired with the respondent to commit a criminal act, it fell short of establishing what that crime was.

3. The case which the Crown presented against the respondent was stronger than its case against Thomas. There was evidence of admissions made by him to police officers which if accepted by the jury established that the object of the conspiracy was armed robbery. He did not seek to challenge his conviction until Thomas's conviction was quashed. Then, on 17 October 1980, he applied for leave to appeal on the sole ground that

"the Applicant was jointly presented with one Leonard Clifford Thomas upon one count of conspiracy to rob whilst armed, the said count alleging a conspiracy between the two aforementioned persons and no-one else, and that the said Leonard Clifford Thomas was subsequently acquitted of this conspiracy by order of the Court of Criminal Appeal dated 29th September 1980."

On the hearing of the application by the Full Court (Young C.J., Anderson and Jenkinson JJ.) it was argued for the applicant and not contested by the Crown that the Court was bound on the authority of the Privy Council in Dharmasena v. The King (1951) AC 1 to hold that where two persons are jointly presented for trial on a single count of conspiracy between themselves and no other, the acquittal of one necessitates the acquittal of the other. In acceding to the submission, the Chief Justice, with whom the other members of the Court agreed, noted that the Queensland Court of Criminal Appeal had recently come to a similar decision in the case of Reg. v. Hart, Cuzzo & Smith (1980) Qd R 259 . The application was granted, the appeal allowed, the conviction and sentence quashed, and in lieu thereof a verdict and judgment of acquittal was entered. (at p671)

4. It is from that decision that the Crown now seeks special leave to appeal. It is said that the rule expressed in Dharmasena, while explicable in its historical origins, is without any present justification and is wrong in principle. This Court is now asked, in the exercise of its undoubted function, to declare the common law for Australia

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18. It is true that greater conceptual difficulties attend the task of a jury determining the guilt of both A and B on a joint trial for conspiring together (and with no one else) than in the case of separate trials. A can only be convicted if the jury is satisfied beyond reasonable doubt on evidence admissible against him, inter alia, that A and B conspired together. In essaying their duty in the case of B, the same jury which was satisfied of A's guilt in conspiring with B may on evidence admissible against B fail to be satisfied beyond reasonable doubt that B did conspire with A. The result is then that in the one trial the jury is saying at the same time that A is guilty of conspiring with B but B is not guilty of conspiring with A. In reality, of course, the apparent phenomenon is readily explained in terms of the obligation of the jury to consider separately the guilt of the two accused on the basis only of the evidence admissible against each.

19. Nevertheless, there remains an incongruity in the direction of a trial judge which on the one hand instructs the jury that they must consider separately the guilt of each accused, taking into account only the evidence admissible against each and on the other tells them that they must either convict them both or acquit them both. But it may be worse than that. Such a direction might well result in injustice to one accused. In a case where the evidence against A is overwhelming, a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act on a reasonable doubt on the evidence admissible against B.

20. In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v. The Queen (1979) 44 CCC (2d) 481 requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice. In cases where there is no material distinction in the evidence admissible against both alleged conspirators, the trial judge's advice to the jury that they will either convict or acquit both accused will continue to be appropriate not because of any technical rule but because of the circumstances of the case (cf. Lord Simon of Glaisdale in Shannon (1975) AC, at p 768

Murphy J (would dismiss the appeal)

16. In Guimond (1979) 44 CCC (2d) 481 the Supreme Court of Canada suggested separate trials where the evidence of one accused is significantly different from that against the other. The majority adopt this suggestion. In my opinion it underlines the weakness of the case for abandoning the traditional rule (as well as being productive of much inconvenience and expense).

17. The evils flowing from this abandonment are manifold. First and worst is the degradation of the effect of every acquittal. Second, some persons acquitted of conspiracy will be subjected to the outrage of the criminal justice system declaring them guilty by convicting others of engaging jointly with the acquitted person in the commission of the very crime of which he was acquitted. By logical extension to other joint crimes or crimes dependent on the guilt of another, some persons acquitted of a crime will be defamed similarly when other persons are convicted as accessory to the commission by the acquitted person of that very crime. Third, uncertainty and confusion will occur about whether those accused of joint crimes should be tried together (because the evidence against them is much the same) or separately, because it is not. When questions of evidence in favour of each of the accused are also taken into account with the inevitable jockeying by the prosecution and various accused having different views of the desirability of separate trials, the new approach is bound to encourage time-wasting and expensive pre-trial proceedings, and multiply trials and appeals. Fourth, if the suggestions about not considering cases separately on a joint trial (see Lord Salmon in Shannon) are accepted, this will erode another fundamental rule of criminal justice.

18. Although no judgment acknowledges it, the real reason for the proposal for separate trials appears to be that it would offend the sense of justice of the community (as represented by the jury) to be told that on a trial of two persons accused of conspiring with each other the jury could acquit (or be directed to acquit) one, yet convict the other.

Hunt J

At 1

Each of the five accused has been charged with the murder of Raeleen Middis on 9 April 1990. The Crown case is that the accused Middis was the person who actually strangled the deceased (who was his wife). The murder occurred during the night, when the deceased was lying on her back on the bed in which she had been sleeping. Each of the other accused is alleged to have been present at the time when Middis strangled her and to have assisted him in that act in one way or the other, by holding on to the deceased's limbs or otherwise being available to give assistance if required.

At 4 and 5

Each applicant claims that he or she will be prejudiced in a joint trial by statements made by the other accused to the investigating police which are not admissible against him or her but which are highly prejudicial to his or her case. The principles upon which separate trials will be ordered in those circumstances were laid down by the Supreme Court of Canada in Guimond v The Queen (1979) 44 CCC (2d) 481, and approved by the High Court of Australia in Darby v The Queen (1982) 148 CLR 668 at 678. See also the decision of the Court of Criminal Appeal in Regina v Oliver (1984) 57 ALR 543 at 547. I have discussed those principles in a number of cases, principally Regina v Domican and Thurgar (1989) 43 A Crim R 24 and Regina v Farrell and Cotton (1990) 48 A Crim R311.

Briefly, the relevant principles are that:

(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 applicant will be made immeasurably stronger by reason of the prejudicial material,

a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.

At 8

Another matter of some debate before me was whether a judge hearing an application for separate trials is obliged to disregard the interests of the administration of justice once such prejudice has been established. It was submitted that no question of mere convenience to the Crown or to the orderly dispatch of the criminal list should permit a joint trial to proceed if such positive injustice would be caused to one or more of the accused in that trial.

That submission cannot be accepted. It is clear from Regina v Oliver (at 547) that the judge must also take into account: "the public interest in the efficient dispatch of trials, the conserving of costs and the avoidance of any inconvenience to witnesses by having to attend a number of trials."

Gleeson CJ

At 1

This is an urgent application for leave to appeal against a decision of Abadee J who refused an application made by Jon Leslie Baartman for a separate trial in relation to proceedings that have been fixed to commence on 10 October 1994. I should mention that I deplore the lateness of the stage at which the application for a separate trial was made, but something by way of an explanation for that was advanced on behalf of the applicant.

At 2

The following is a brief, and no doubt in various respects, inadequate summary of the nature of the case. The Crown case is that Paul Thomas Crofts shot the victim and that the victim ultimately died from the wound so inflicted. It is alleged that Baartman was acting as a look-out at the time of the shooting. As I understand it, it is not the Crown case that the shooting was done with intent to kill. It is my understanding of the Crown case that Crofts was engaged to shoot a person - other than the ultimate victim - in the leg by way of reprisal for adulterous behaviour.

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What ultimately led to the charging of Paul Thomas Crofts and Baartman with murder was that the police received information, including information conveyed to them through an intermediary by a man named Bicanic, and they then undertook surveillance of the home of the Crofts pursuant to the Listening Devices Act. The surveillance of the Crofts' home was undertaken in some kind of co-operation with a television company, which ran a story about the killing of the victim. The police managed to get a tape recording of the reaction of the Crofts brothers, including Paul Crofts, to the television programme as it was being televised, and immediately thereafter.

At 3

What is said in the present case is that the principal evidence, although not the only evidence, against the Crofts and, in particular, Paul Crofts, is evidence of a dramatic, incontrovertible and highly prejudicial nature in the form of the statements made to which I have referred above.

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The Crown accepts that the relevant principles are adequately summarised in the unreported decision of R v Middis, unreported, New South Wales Supreme Court 27 March 1991 where Hunt J said:

"Briefly, the relevant principles are that:

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 applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial."

In my view in the circumstances of this particular case those three conditions are satisfied. As to the first condition, whilst the Crown case against Baartman is by no means a weak case, on the face of it the Crown case against Paul Crofts is overwhelmingly strong and, in that sense, the case against Baartman is significantly weaker and different from the case against the Crown. It is common ground that the evidence against Crofts contains material highly prejudicial to the applicant, although not admissible against him. Furthermore, in my view, there is a real risk that the case against Baartman, formidable as it is, will be made very much stronger by reason of the prejudicial material. In those circumstances, and notwithstanding my consciousness of the fact that we are dealing with a discretionary judgment of a first instance judge, I consider that there should have been an order for a separate trial.

Powell JA

At 5

I agree, and I would not wish to add anything.

Smart J

At 5

I agree

Mason CJ and McHugh J (would dismiss the appeal)

21. We agree with the reasons of Toohey J for concluding that the remaining grounds of appeal also fail.

Brennan J (would allow the appeal on other grounds and did not address the joint trial ground)

8. The deceased Patrick had been killed by an injury inflicted in the course of a brutal assault upon him. The brutality and force of the assault were not disputed. Webb had given statements to the police in which he blamed Hay for inflicting the fatal blow. Hay had given evidence in which she had, by implication, attributed the infliction of the fatal blow to Webb. Each of the accused sought to escape conviction by attributing criminal responsibility solely to the other.

Deane J (would allow the appeal, but not on the joint trial ground)

22. The first of those grounds is that there should have been an order for separate trials. In the particular circumstances of this case, it was strongly arguable that separate trials were appropriate. On the other hand, the trial was destined to be a lengthy one and there were strong considerations, including the desirability of placing the whole picture before the jury, favouring a joint trial in the interests of the administration of justice. The question for this Court is not whether it was, on balance, preferable that an order should have been made for separate trials. It is whether there was, in the event, a miscarriage of justice by reason of the fact that Ms Hay was subjected to a joint trial. In my view, in the context of the directions given by the learned trial judge, it cannot be said that there was such a miscarriage of justice.

23. I would, however, wish to stress that it is important that general comments by appellate judges about the desirability of placing the whole picture before the jury should not be misconstrued as an implicit endorsement of the notion that a consideration favouring a joint trial is that it will enable evidence which is inadmissible against a particular accused to be placed before the jury charged with the determination of the guilt or innocence of that accused. Such comments should be understood as referring only to evidence, such as the sworn evidence of one accused, which is admissible against both accused and which might otherwise be unavailable to be led by the Crown. So far as evidence which is not admissible against both accused, such as a confessional or unsworn statement by one of them, is concerned, the fact that it will be placed before the jury charged with determining the guilt or innocence of the other accused should always be seen as a factor militating in favour of separate trials.

24. Nor do I subscribe to the view that the reasons which favour the joint trial of persons who are charged with committing an offence jointly are particularly strong in cases where such persons seek to cast the blame on one another. Particularly where the accused has made a confessional statement and in jurisdictions where an accused is permitted to make an unsworn statement, the dangers of unfair prejudice to one accused from material which is inadmissible against him or her being placed before the jury seem to me to be exacerbated in such cases. Far from the desirability of avoiding "inconsistent verdicts" assuming particular importance, there is a particular danger in such cases that popular notions of the need for consistent verdicts may tend to subvert the requirement of proof beyond reasonable doubt. If, for example, each of two defendants seeks to exculpate himself or herself from guilt of a crime, which both or one of them undoubtedly committed, by casting the entire blame on the other, it is difficult to see any particular relevance of the need for consistent verdicts apart from the superficial and mistaken notion that there would be something "inconsistent" about an acquittal of both. Indeed, where there is a joint trial in such a case, it is desirable that the trial judge stress to the jury that, while the jury may think it apparent that the crime was committed by at least one of the accused, there would be nothing inconsistent in their finding that the guilt of neither had been proved beyond reasonable doubt.

Toohey J (would dismiss the appeal)

5. The deceased, Lance Edward Patrick, met the appellants in a hotel in Mount Gambier one evening. The three left the hotel at about 10.25 p.m., taking with them a cask of moselle, and began drinking in a bus shelter. They were still there at 11.50 p.m. Just after midnight Webb was seen walking across a car park adjacent to the bus shelter, wearing the deceased's boots. Hay was in a telephone box across the road. Between 11.50 p.m. and just after midnight a person living nearby heard a loud, strong scream by a male voice, followed by two or three other screams. King CJ, with whose judgment Cox and Matheson JJ agreed, said ((114) ibid. at 566.) that the "overwhelming inference is that the incident which caused the death of the deceased occurred between 11.50 pm and 12.05 am". The appellants spent the rest of the night in a motel room which they entered without permission. At some point Webb deposited the deceased's jacket and belt in a used car yard but he retained the deceased's boots. Webb gave the buckle from the belt to another occupant of the house in which he and Hay were living. He burned the deceased's boots and his own jacket.

6. The deceased's body was found that morning. It had extensive injuries to the face, throat and upper body, consistent with kicks, and injuries to the face, consistent with blows from the buckle of the deceased's belt. The cause of death was a fracture of the cricoid cartilage in the throat, a fracture which could have been caused by blows inflicted by a boot. Footmarks discernible on the throat matched the pattern of the sole of Webb's shoes and, in one case, the pattern of the sole of Hay's shoes.

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24. The first of these other matters is the failure of the trial judge to order separate trials for the appellants. The justification, indeed the alleged necessity, for separate trials lies in the fact that in three records of interview with Webb, which could be expected to be and were adduced in evidence by the prosecution, Webb made assertions that Hay had engaged in a violent and sadistic attack on the deceased. And, it was said, although the trial judge warned the jury that this evidence was not admissible against Hay, such a direction could not cure the overwhelming prejudice inevitably caused to Hay.

25. King CJ dealt with this ground by pointing out that there are "strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other" ((1992) 59 SASR at 585.). What King CJ referred to as "strong reasons of principle and policy" were discussed by his Honour in Reg. v. Collie ([1991] SASC 2996; (1991) 56 SASR 302 at 307-311.). I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others (Reg. v. Demirok [1976] VicRp 19; (1976) VR 244 at 254.). There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused (Reg. v. Harbach (1973) 6 SASR 427 at 433.).

The Court (Newman, Studdart and James JJ)

1. The appellants Brendan Fernando and his cousin Vester Allan Fernando were jointly indicted on charges of the murder and aggravated sexual assault of Sandra Hoare. Both appellants pleaded not guilty but after a lengthy trial the jury found them guilty of murder. In the case of Brendan Fernando he was found guilty on the second count as charged. In the case of Vester Fernando the trial judge directed a verdict of not guilty on the aggravated sexual assault charge but the jury found him guilty of assault with intent to have sexual intercourse without consent in circumstances of aggravation.

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195. As we have noted above one of the grounds of appeal most strenuously urged on behalf of the appellant Vester Fernando, is that both his Honour Temby AJ and Abadee J should have acceded to applications that Vester Fernando be tried separately. The application before Temby AJ had been made on 23 April 1997 that is approximately a fortnight before the commencement of the subject trial. During the course of the trial this application was unsuccessfully renewed to Abadee J a number of times. The basis of each application was identical.

196. The nub of the submission made in this regard related to the admissions made by Brendan Fernando in the interview originally recorded in Det Pearson's notebook, the contents of which were put to Brendan Fernando during the course of the electronically recorded interview and the electronic recording made of Brendan Fernando's statements and actions during what is colloquially known as a "runaround". The submission was that what was recorded so directly implicated Vester Fernando as to be unfairly prejudicial to him as to prevent him having a fair trial.

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202. In R v Grondkowski (1946) 1 KB 369 the Court of Criminal Appeal at 373 cited with approval the following paragraph from R v Gibbons & Proctor (1918) 13 Cr App R p 134:

"It is not enough to say that counsel could have defended them more easily if they had been tried separately ... there may have been many things made clear to the jury which would not have been made clear if the prosecution had been embarrassed by having to deal with the two cases separately. The whole story was before the jury of what went on in the house where the two appellants lived together."

203. Grondkowski was a case involving cut-throat defences. As we apprehend the passage cited and other passages from the judgment it was considered that cases of that kind are better heard together. The reason for that is the opportunity given to the jury to observe each of the accused and to consider the whole of the relevant facts rather than what may be a misleading portion of them. In Grondkowski it was also said:

"Prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise that it is obviously right and proper that they should be jointly indicted and jointly tried and in some cases it would be as much in the interests of the accused as of the prosecution that they should be."

204. Grondkowski has been consistently followed by courts in this State including R v Kerekes (1973) WN; R v Flaherty & Ors (1968) 3 NSWLR and R v Merrett 19 A Crim R 363. As was pointed out in the joint judgment of Slattery CJ at CL and Carruthers J in the last mentioned case citing from Grondkowski, it is necessary for the judge to consider the interests of justice as well as the interests of the prisoners. The interests of justice do not mean only the interests of prisoners. There is an additional interest in conserving costs and avoiding inconvenience to witnesses properly to be taken into account: see R v Oliver 57 ALR 543 at 547. Further, there is the undesirable risk the separate trials will lead to verdicts which are inconsistent on the facts. R v Lake 64 Cr App R 172.

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212. Accordingly, in determining whether a separate trial should be granted the court must carry out a balancing process between the community interest described by Herron J in Beavan and Toohey J in Webb and Hay and the question of undue prejudice to an accused as described in the authorities to which we have referred.

Allsop P

3. At the time of the offences the appellant was in his mid-twenties, a truck driver and a casual friend of the mother of the complainant. Their relationship was a sexual one.

4. The appellant and the mother faced trial together upon an indictment containing 34 charges of sexual offences relating to the daughter, who was at the time 13 years of age. The offences were said to have taken place in three episodes and at three locations.

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8. There was a joint trial in September 2008 before a judge of the District Court (Black DCJ) and jury at Lismore. Black DCJ refused an application for a separate trial. The complainant's evidence was given by video and a record was kept of it. Both the appellant and the mother gave evidence at that trial. The jury was discharged following alleged impropriety during deliberations.

9. On the re-trial before Woods DCJ, the ruling as to a joint trial was not canvassed. The complainant's evidence at the first hearing and the record of two interviews that she gave to the police (24 October and 8 November 2005) were read to the jury. The appellant's and the mother's evidence from the earlier trial was tendered by the Crown. Neither the appellant nor the mother gave or called any evidence in their cases at the re-trial.

10. It is important to note at this point that while the evidence of the appellant and the mother was admissible against each other at the first joint trial, the evidence of each at the retrial was only evidence against them individually. This was potentially productive of difficulty since there were important inconsistencies in their evidence. Most importantly, in relation to the second episode at Yamba, the mother said that, after having taken some time to have a shower and taking some drugs, she re-entered the living room to find the appellant and the complainant naked on the sofa bed with the complainant having a vibrator inside her vagina. The mother said that she protested and began to dance flirtatiously to distract attention from the daughter. The appellant denied that these events took place, denied any sexual contact with the complainant and denied being naked. I will return to the evidence shortly. It should be noted that there was no objection to the reading of the accused’s evidence to the jury on the retrial. Clear directions were given about its use. There was no revival of any application for a separate trial.

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24. The appellant and the mother were jointly charged with a number of the offences. In the ordinary course one would not expect them to be tried separately: R v Demirok [1976] VicRp 19; [1976] VR 244 at 254; Demirok v R [1977] HCA 21; 137 CLR 20; and see generally R v Fernando [1999] NSWCCA 66 at [199]- [212]. The danger that may exist is by the admission of evidence against one only of the accused. This risk is to be obviated by express and careful directions as to the use of evidence: R v Harbach (1973) 6 SASR 427 at 433. There is a public interest in the avoidance of the risk of inconsistent verdicts, of inconvenience to witnesses, and in ensuring finality is reached as expeditiously as possible by having one trial. The interests of justice in this respect are not limited to those of the accused: Demirok; Webb and Hay v R [1994] HCA 30; 181 CLR 41 at 89.

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26. There is a balance to be struck between the public interest and any prejudice to the accused, relevant to which assessment is whether there is positive injustice to the accused: R v Dellapatrona (1993) 31 NSWLR 123 at 133.

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42. The trial judge and the jury were faced with a difficult task, given how the trial had come about. The starting point is to recognise that the trial judge gave the clearest possible directions, both in writing and orally, about the necessity to decide the appellant's case without the evidence of the mother and exhibits S, T, U, V and W (being the records of conversations). No complaint was made about those directions. The operation of the criminal law requires the assumption that, as a general rule, juries follow directions: Gilbert v R [2000] HCA 15; 201 CLR 414.

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44. The appellant argued that there was irretrievable and unavoidable prejudice. I do not agree. A misuse of the evidence against the mother was possible. It should not be assumed that it occurred. It has not been demonstrated to have occurred.

Hidden J

69. I agree with the orders proposed by the President and with his Honour's reasons. As to ground 2, it may well be that the Reeves line of authority will need to be reconsidered in an appropriate case, but I agree with the President that this is not that case.

Davies J

70. I agree with Allsop P.