When assessing prejudice from a co-accused's inadmissible out-of-court statements for the purpose of a separate trial application, the probative force of the accused's own admissions does not diminish the likely prejudice arising from the co-accused's statements. The prejudice can only be assessed by reference to the risk of impermissible use of the inadmissible material, not by reference to the strength of the admissible case. However, an appellate court may confirm the refusal of separate trials notwithstanding such an error if the decision was ultimately correct.
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