The discretion to order separate trials under s 133(4) of the Criminal Procedure Act 2004 (WA) requires satisfaction of a threshold condition: likely prejudice 'in the trial' caused by the joint indictment. Pre-trial prejudice such as expense, anxiety, inconvenience to witnesses, and interference with the accused's life is irrelevant to this threshold. Delay may enliven the discretion only where it causes actual prejudice in the trial itself, such as adversely affecting the availability of a material defence witness. General assertions about fading memories are insufficient without specific evidence of how delay would impact the trial.
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