Citation: R v McParland; R v Wingate (No 2) [2011] NSWDC 265
Court: District Court of New South Wales
Date: 18 July 2011
Judge(s): Cogswell SC DCJ
Background
Two co-accused, McParland and Wingate, were jointly charged with aggravated break and enter and committing a serious indictable offence in company. Police found both men in the early hours of the morning near equipment recently stolen from a nearby site. Each was arrested and separately interviewed by police.
The accounts each accused gave during their police interviews were inconsistent with each other. Additionally, certain items found in the vehicle driven by McParland were said to be inadmissible against Wingate.
Counsel for Wingate applied for a separate trial, supported by counsel for McParland. The prosecution opposed the application and argued that a joint trial was appropriate given the allegation of common purpose.
Legal Issues
- Whether the court should order separate trials under s 21 of the Criminal Procedure Act 1986 (NSW)
- Whether the inconsistent police accounts given by each accused constituted inadmissible and prejudicial material that could not be adequately managed in a joint trial
- Whether items found in McParland's vehicle, said to be inadmissible against Wingate, created an additional basis for severance
- Whether judicial directions to the jury were a sufficient remedy for any risk of prejudice
Decision
Cogswell SC DCJ refused the application for separate trials. The judge accepted that the inconsistent accounts given by each accused in their respective police interviews were not admissible against the other, and that this created a potential risk of prejudice if the jury drew impermissible inferences from those inconsistencies.
However, the court found that this risk was not sufficient to warrant severance. The judge noted that courts have long regarded juries as both capable of receiving, and willing to act upon, directions given by trial judges. Clear directions about what may and may not be taken into account against each accused were considered the more appropriate mechanism for managing any prejudicial material.
The court also concluded that the case against Wingate would not be made "immeasurably stronger" by reason of the prejudicial material, particularly given the directions that would be provided. A joint trial was considered desirable given the allegation of common purpose between the two accused, consistent with the approach endorsed by the High Court in Webb and Hay v The Queen.
Orders Made
• Application for separate trial rejected
• Joint trial of the two accused to proceed
Key Takeaways
- The District Court confirmed that, where co-accused are alleged to have acted in common purpose, a joint trial is generally the preferred course and severance requires a compelling basis.
- Under s 21 of the Criminal Procedure Act 1986 (NSW), a court may order a separate trial only where it considers such an order "desirable"; the mere existence of inconsistent statements between co-accused does not automatically meet that threshold.
- The risk of a jury drawing impermissible inferences from inadmissible material is, in appropriate circumstances, adequately addressed by clear judicial directions rather than by severing the proceedings.
- Refusing the application, the court relied on the long-established principle that juries are capable of following and acting upon directions given by trial judges, including instructions to disregard material inadmissible against a particular accused.
- The High Court's observation in Webb and Hay v The Queen (1994) 181 CLR 41 that joint trials are generally desirable for co-accused was applied in support of maintaining the single proceeding.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 21
Cases
- R v Baartman (Court of Criminal Appeal (NSW), 6 October 1994, unreported)
- R v Middis (Supreme Court (NSW), 27 March 1991, unreported)
- Webb and Hay v The Queen (1994) 181 CLR 41