Where the prosecution alleges an accused joined a common criminal enterprise, evidence of all acts done in furtherance of that enterprise — including acts predating the accused's involvement — is admissible against the accused to establish the nature of the enterprise joined. This means the evidence admissible against each co-accused at a joint trial may be virtually identical, defeating any claim of likely prejudice from differential admissibility under s 133(4) of the Criminal Procedure Act 2004 (WA). A court considering a separate trial application must form its own view of the likely admissibility of contentious evidence at trial.
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