Area of Law – Practice and Procedure

An Article about Separate trials

Separate trials
In criminal cases trying to get a separate trial is often the most important issue in the case. If the other accused has some terribly damaging evidence against them and you do not then you would want to be separate from them if you could be.

Sometimes a co-accused has said things about you in a record of interview that are damning. Strictly they are not evidence against you but you would rather not test the jury’s ability to follow a Judge telling them that.

Below are some of the main principles in applying for a separate trial;

Piller & Ors Supreme Court New south Wales 86 A Crim R 249 – Four people charged with murder from bungled armed robbery

Various interviews then further statements by accused.

Principles to be applied in applying for a separate trial

1) where the evidence against an applicant for separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him

2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and

3) where there is a real risk that the weaker crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material

Factors from R v Demirok [1976] VR 244
Firstly, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted

Secondly, it is against the interest of justice that there should be inconsistent verdicts and those interests require that where the accounts of accused person differ or conflict their differences should be be resolved by the same jury at the same time.

Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required

Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.


Date: 01/09/2009