Criminal Trial Courts Bench Book — Trial Instructions H–Q

Section 21 provides that a court can order separate trials if it is of the opinion an accused may be prejudiced or embarrassed in their defence by being charged with more than one offence in the same indictment, or for any other reason it is desirable the accused be tried separately for any one or more offences charged in an indictment. Sections 21 and 29 (which provides for when more than one offence may be heard at the same time) have different provenances and distinct operations and should not be conflated. Section 21 applies to proceedings on an indictment, however s 29 does not: McNamara v The King [2023] HCA 36 at [30]–[33].

Some risk of forensic prejudice to an accused in a joint trial is inherent and is not of itself inconsistent with the overall interests of justice supporting a joint trial. Prejudice to a co-accused will not result in the ordering of a separate trial if it is amenable to nullification by jury directions: McNamara v The King at [42]; [101]; R v Henry [2008] NSWCCA 248 at [12]. Given matters of public policy and principle, even substantial prejudice to a co-accused of a kind not readily cured by directions will not result in the ordering of a separate trial “as a matter of course”: McNamara v The King at [42]; [99]. To justify the ordering of a separate trial, the particular prejudice to a co-accused must occasion “positive injustice”: McNamara v The King at [42]; Caleo v R [2021] NSWCCA 179 at [137]–[138].

The relevant prejudice is the danger the jury may misuse the evidence on a basis logically unconnected with the issues at trial, by way, for example, “appealing to the jury’s sympathies, arousing a sense of horror or provoking an instinct to punish”: DS v R [2023] NSWCCA 151 at [85]; Castagna v R [2012] NSWCCA 181 at [67]. Once the court determines an accused may be prejudiced or embarrassed in their defence, the discretion to order separate trials is affected by a number of considerations such as the likely degree of prejudice or embarrassment, the ability to cure or mitigate any prejudice by judicial direction; the extent of the severance required; the cross-admissibility of evidence; the impact of severance on witnesses who may be required to give evidence on two or more occasions; the complexity of directions required in order to ameliorate any prejudice or embarrassment, and the nature of the offence or offences to be severed: DS v R at [86]; Allen v R [2020] NSWCCA 173 at [55].

As to the public policy considerations favouring joint trials, see Webb v The Queen (1994) 181 CLR 41 per Toohey J and McNamara v The King at [37]–[41]; [99]. Generally, there will or should be a joint trial when co-accused raise “cut-throat” defences — when each seeks to blame each other for their liability in the joint criminal enterprise: Webb v The Queen at [89]; R v Hawkins [2023] NSWSC 1201 at [82]. For the principles to be applied in deciding to grant a separate trial, see Ross v R [2012] NSWCCA 207 at [24]–[26] and R v Middis (unrep, 27/3/1991, NSWSC) at 5; McNamara v The King at [42].

See generally Criminal Practice and Procedure NSW at [2-s 21.15] and Criminal Law (NSW) at [CPA.21.20]ff.

Where the evidence at the trial is admissible against each accused, it is not necessary for the judge to address the case against each separately: Huynh v The Queen [2013] HCA 6 at [51].

It is convenient to approach the admissibility of evidence on the basis that the jury should assume that the evidence is admissible against all of the accused unless told otherwise. See relevant sections of Suggested (oral) directions for the opening of the trial following empanelment at [1-490]. The Crown should be required to indicate to the jury, when calling a particular piece of evidence or a particular witness, if it is not tendered against all the accused and the limited basis upon which it is being tendered. The trial judge should direct the jury as to the limited use to be made of evidence tendered against an individual accused, see R v Masters (1992) 26 NSWLR 450 at 455. This is particularly so where the evidence is of an admission implicating a co-accused. Where evidence tends to inculpate one accused and exculpate another, see [3-615] Notes, note 10. As to the admissibility of evidence adduced by one accused in the trial of another see McNamara v The King at [1], [53]–[75].

It is suggested that directions as to the admissibility of evidence against a particular accused and the limited use that can be made of the evidence be given at the time the particular evidence is led before the jury. Later the summing up should make it clear what is the particular case against each of the accused and direct the jury against using evidence admitted against one accused as evidence against another accused.

It has not been thought inappropriate to refer to multiple accused’s as “co-accused” who are “jointly charged” on a “joint indictment” and to refer to the resultant trial, in the event of pleas of not guilty, as a “joint trial”. It is also appropriate to refer to the Crown “case” against each co-accused and the defence “case” for each co-accused: McNamara v The King at [35]–[36].