WA v Russell

[2009] WASCA 154

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Joint trial
3. › Application for separate trials
4. › Principal offender and accessory after the fact
5. › Whether accused likely to be prejudiced by joint trial
6. › Whether sufficient evidentiary foundation for anticipated defence of duress
7. › Whether court can act on hypothetical facts
8. › Criminal Procedure Act 2004 (WA), s 133(4), s 133(5)
1. Criminal Law
2. › Joint trial
3. › Application for separate trials
4. › Whether likelihood of prejudice could be guarded against by direction to jury
5. › Evidence of co-accused's prior convictions for violent offences
6. › Criminal Procedure Act 2004 (WA), s 133(5)
1. Criminal Law
2. › Joint trial
3. › Application for separate trials
4. › Whether charge of accessory after the fact when charged with principal offence should be separately tried
5. › No distinction between joint trial of principals and joint trial of principal and accessory
6. › Criminal Procedure Act 2004 (WA), Sch 1 Div 2, cl 7(4)
1. Criminal Law
2. › Appeal
3. › Appeal by prosecution against order for separate trials
4. › Principles to be applied
5. › Criminal Appeals Act 2004 (WA), s 26(3)(a)

Quick Take

An application for separate trials under s 133(4)(a) of the Criminal Procedure Act 2004 (WA) must be supported by evidence establishing a proper foundation for the anticipated prejudice; a court cannot act on speculation or hypothesis about defences that may be raised. No distinction is to be drawn between joint trials of principal offenders and joint trials of a principal offender and an accessory after the fact. Where the evidence to be given by co-accused is unknown, it may be necessary to defer the application until after the trial has commenced.