Under s 133(4) of the Criminal Procedure Act 2004 (WA), the power to order separate trials is enlivened only if the court is satisfied the accused is likely to be prejudiced by a joint trial. The majority (Roberts-Smith and Pullin JJA) held that administrative considerations such as court time, public expense, and the risk of inconsistent verdicts are not relevant to the exercise of the discretion under s 133, though Buss JA disagreed on this point. All three judges agreed that where co-accused out-of-court statements implicate the other accused, the presumption that juries follow judicial directions applies, and a direction to disregard such statements will ordinarily be sufficient to guard against prejudice under s 133(5)(a). The court left open the question of the precise scope of the Darby principle regarding separate trials in conspiracy cases versus substantive offences.
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