Joint trials

The general purpose in having persons tried together “is a public interest in the avoidance of the risk of inconsistent verdicts, of inconvenience to witnesses, and in ensuring finality is reached as expeditiously as possible by having one trial”

The general purpose in having persons tried together “is a public interest in the avoidance of the risk of inconsistent verdicts, of inconvenience to witnesses, and in ensuring finality is reached as expeditiously as possible by having one trial” (ROSS James John v R [2012] NSWCCA 207). The “inconvenience” and delay is particularly problematic when it comes to alleged victims, and it is the community’s interest that such matters move to finality as quickly as possible.

A further matter militating in favour of joint trials is the obvious problem of the state’s resourcing, in terms of courts, prosecutors, and legal aid.

Separate trials are most commonly ordered where there are significant portions of the crown case that are admissible against one defendant but not the other. This can include, in particular, admissions made other than in the presence of the co-accused, such as during a police interview (Bannon v The Queen (1995) 185 CLR 1). In some cases where the evidence against one accused is substantially stronger than the evidence against the other, it can have the consequence that it is “practically impossible to sustain and act on a reasonable doubt on the evidence admissible” (R v Darby [1982] HCA 32).

It is always possible for a trial judge to provide strong directions to the jury about what evidence is actually admissible against each co-accused, but in some cases it may be that “such a direction could not cure the overwhelming prejudice inevitably caused” (Webb & Hay v R [1994] HCA 30).

Darby

R v Darby [1982] HCA 32

“In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v. The Queen (1979) 44 CCC (2d) 481 requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice”