R v Torralba[2020] QSCPR 16

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant is to be tried for the murder of Robert Charles Frescon and for armed robbery in company.  Two co-accused are charged with these same counts on the same indictment.  It is convenient to refer to the co-accused as CA-1 and CA-2.
2. [2]
   The applicant seeks a direction, pursuant to s 597B of the Criminal Code (Qld), that his trial be separate from the trial of the two co-accused. 

Summary of the legal principles

3. [3]
   At the hearing of the application, there was no controversy about the relevant legal principles.  They may be briefly stated: 

   1. There are “strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together”.^[1] 
   2. Consideration of the evidence by the same jury at the same trial gives the jury “the means of obtaining a conspectus of the respective roles” of each accused in the crimes with which they are charged.^[2]  It is likely to avoid inconsistent verdicts.^[3]  It also facilitates “a single and final inquiry into matters that arise out of or essentially involve common issues of fact or law” and promotes “the due and expedient administration of criminal justice”.^[4]
   3. The fact that “evidence admissible against one but inadmissible against the other accused will be before the jury is not a reason for ordering separate trials”.^[5]
   4. Courts give directions to instruct juries in their deliberations about the case put against each of a number of joint defendants and about the evidence that is admissible against each. 
   5. It is not assumed that juries are unaffected by matters of possible prejudice, but it may generally be assumed that juries comply with the directions given to them.^[6]
   6. The court’s statutory discretion to direct separate trials should be exercised where there is a real risk of positive injustice to an accused, were he or she to be tried jointly with the co-accused.^[7]
4. [4]
   Examples include: “where the evidence admissible against each accused is impossible or at least extremely difficult to disentangle and the evidence against one is highly prejudicial against the other”;^[8] where “prejudice may cause a jury even to ignore the directions of a trial judge”;^[9]  where “one case is significantly weaker than the other” and “there is a real risk that the weaker prosecution case will be made immeasurably stronger by reason of prejudicial material in the case of the other accused”;^[10] and where the prejudice to an accused from evidence admissible only in the case of another is “so great as to make it unfair to try the accused together”.^[11]
5. [5]
   In R v Dubois & O'Dempsey,^[12] separate trials were directed for the two co-accused because the jury’s assessment of the credibility of witnesses likely to be called to give evidence against each of them (but not both) was apt to be affected by a witness likely to be called to give evidence only against the other.  As Applegarth J explained:

“The essence of each applicant’s argument is that the central issue in the Crown case against him is the credibility and reliability of the witness or witnesses to whom he is alleged to have confessed: in Dubois’ case the key witness is Hall; in O'Dempsey’s case the witnesses are Scully and McDonald.  There are reasons in each case to question the witnesses’ credibility and reliability, so each prosecution case cannot be said to be strong.  In each case a fairly weak case is likely to be highly prejudiced by inadmissible evidence which is admitted in the other case.  This inadmissible evidence corroborates and bolsters the evidence of the critical, confessional witnesses.  The argument is that it is too much to expect a jury to perform the remarkable feat of assessing the credibility of a witness by ignoring evidence which corroborates that witness.  This is particularly so with the chilling and detailed account given by Hall about Dubois’ alleged confession concerning the circumstances of the rapes and murders.  The alleged confessions made by O'Dempsey to Scully and McDonald lack any of this detail, but are likely to be bolstered by this highly prejudicial, inadmissible evidence.”^[13]

6. [6]
   In R v Swan,^[14] the evidence of a co-accused, Smith, reinforced the credibility of the evidence of another witness, Mondientz, who was critical in establishing a case against Swan.  As Holmes JA observed:

“It was inevitable that the jury would regard Mondientz’ account as more credible for that reinforcement; and, as I have indicated, those circumstances were pivotal to a conviction of Swan.

… The case against Swan was not strong; it depended entirely on Mondientz’ version of events, and her credibility, which there were many reasons to question, was critical.

… Everything turned on Mondientz’ credibility, which could be regarded differently depending on which set of evidence – that admissible against Smith or that admissible against Swan – it was assessed against.  A jury could not reasonably be expected to arrive at a view of her credit based on the case against Smith and then embark again on the same exercise, but disregarding that evidence, in relation to the case against Swan.”^[15]

7. [7]
   The categories of cases where separate trials should be directed are not closed.^[16] 
8. [8]
   Accepting that some prejudice to one or other accused is inevitable in any joint trial, a party seeking a separate trial must show that a particular prejudice, if it arises in a joint trial, would result in positive injustice to him or her.^[17]  It follows that the court should make two enquiries.  The first is about the particular prejudice that could flow from a joint trial; and the second is about whether the risk of positive injustice from that prejudice can be appropriately and effectively dealt with by directions to the jury during the course of a joint trial.
9. [9]
   At this point in time, these enquiries must be conducted on the basis of the prosecution case and the evidence disclosed by the Crown as likely to be led at a joint trial. 

The Crown case

10. [10]
    According to Mr Whitbread, who appeared for the Crown, the prosecution case on the murder count is that the applicant was party to a joint criminal enterprise with CA-1 and CA-2.  The Crown alleges the applicant formed a plan with either or both of them to confront the deceased and steal his property, contemplating that serious violence may be used, and murder was a probable consequence of the planned action. 
11. [11]
    For the armed robbery count, the Crown alleges the applicant participated in a joint enterprise with CA-1 and CA-2 to rob the deceased whilst the applicant, CA-1 and/or CA-2 were armed with knives.

The likely evidence

12. [12]
    Mr Boulten SC, for the applicant, tendered an exhibit containing four sets of transcripts and eleven statements, which constitute the prosecution evidence at this time.  
13. [13]
    These include a statement of a witness who was at the Gold Coast with CA-1 and CA-2 on 17 January 2019, before the incident.  This witness gives no evidence of any interaction with the applicant. 
14. [14]
    There are two statements from a witness who drove CA-1 and CA-2 from the Gold Coast to Brisbane late on 17 January 2019 or early on 18 January 2019, collected a person likely to be the applicant^[18] and another person in Brisbane, dropped the other person off in New Farm and then drove the applicant, CA-1 and CA-2 to Kelvin Grove, near the deceased’s flat.  The witness then drove off, but returned when called by CA-2 to pick up CA-1 and CA-2 and drive them to Albion Railway Station.  This witness’s evidence is considered below. 
15. [15]
    There is a statement from another witness who picked up the applicant and another after the incident and had a conversation with the applicant about the incident a few days after it occurred.  During the conversation, the applicant conveyed to the witness that CA-2 killed a person on the night/morning in question.
16. [16]
    There is also a statement from a witness who shared a unit with the applicant.  It says nothing about the incident or about CA-1 or CA-2.
17. [17]
    There are statements from two witnesses who spoke with CA-1 on 19 January 2019 about the attack on the deceased and three from witnesses who spoke with CA-2 after the incident.  These are considered below.
18. [18]
    There is a statement from a witness who spoke with a person, who may be CA-1, at about 5:30 am on 19 January 2019. 
19. [19]
    There is no statement by the applicant, CA-1 or CA-2. 
20. [20]
    There are a number of transcripts of conversations between police officers and CA-1 on 20 January 2019.  In two of the transcripts, CA-1 referred to a third person who was present when the deceased was attacked by CA-1 and CA-2.  According to CA-1, the third person had “no involvement”, “no idea” that CA-2 would enter the deceased’s flat and stab him with a knife, and “nothing to do with it”.  There is also a transcript of an interview between CA-2 and police officers on 20 January 2019 in which CA-2 declined to answer any questions about the incident.  So, there is no present indication that either co-accused is proposing a “cut-throat” defence in respect of the applicant or would give any other evidence that would prejudice the applicant.
21. [21]
    There is a transcript of a recording made by a law enforcement participant (LEP) placed in a cell with the applicant on the day he was arrested.  It is considered below.
22. [22]
    Mr Whitbread relied on an outline of key evidence, which summarised the statements and referred to some other evidence, including of a witness who was with the applicant at Dutton Park late on 17 January 2019 or early 18 January 2019 before the incident, met him after the incident and shared a ride with the applicant back to Dutton Park.  The outline also referred to evidence of another witness who was a neighbour of the deceased and heard “lots of banging and crashing” on the evening of the incident.  
23. [23]
    As well, the attack on the deceased was captured on a closed circuit video recording on a camera inside the deceased’s flat, with no sound.  Although the recording was not played at the hearing of this application, the things shown in it were described in the written outlines of submissions and the outline of key evidence.  They were also the subject of oral submissions by Mr Boulten and Mr Whitbread. 
24. [24]
    It was common ground that the recording shows CA-1 enter the deceased’s flat and engage in a discussion with the deceased.  After a short time, CA-1 picks up two knives from a shelf in the flat and threatens the deceased – pressing a knife blade to the deceased’s throat.  It shows the deceased defend himself, attempting to fight off CA-1, at one point throwing a piece of furniture at him.  It then shows CA-2 enter the flat, wearing a mask, with a knife in his hand and rush at the deceased.  It shows the applicant enter the flat about that time following CA-2, and stand in the doorway, not joining the affray.  It then shows CA-1 and CA-2 attack the deceased with knives.  It shows the applicant remain near the door or in the doorway apparently observing the engagement between CA-1, CA-2 and the deceased.  It shows the deceased fall to the floor, attempt to get up, and fall again.  Finally, it shows the applicant appear to bend down and do something at floor level before exiting the flat quickly with CA-1 and CA-2. 

The particular prejudice

25. [25]
    Mr Boulten identified evidence of a witness about a conversation between CA-1 and CA-2, in the absence of the applicant, at the Gold Coast some hours before the time of the recording (the Gold Coast conversation).  In it, CA-1 and CA-2 discussed robbing a person alleged to be the deceased.  The witness also says CA-1 left premises on the Gold Coast with chopping knives and CA-2 left with a face mask.  The witness does not give any evidence about the applicant, not having had any interaction with him. 
26. [26]
    Mr Boulten described this witness’s evidence about the Gold Coast conversation, when “coupled with” the recording, as “very powerful evidence of an agreement” between CA-1 and CA-2 to rob the deceased while armed with weapons.  According to Mr Boulten:

“in those circumstances, it’s a powerful piece of evidence that a jury would rely upon to conclude that from at least the time that [CA-1 and CA-2] left the premises having discussed the issues in front of [the witness] they were intent upon doing exactly what happened.”^[19]   

27. [27]
    In a written outline dated 24 June 2020, Mr Boulten identified two potential risks of injustice:

“38. In light of the evidence, it is clear that there is a very strong prosecution case against [CA-1 and CA-2] for murder and a very marginal case against the Applicant for murder, manslaughter and armed robbery in company.  The risk here is that the much weaker case against the Applicant will be made immeasurably stronger as a result of the inadmissible evidence that will be tendered against the other accused.

39. The jury will be set a difficult task to disregard the inadmissible evidence.  There is a real risk that they will impermissibly use that evidence irrespective of careful directions.  This is a case where they will be asked to perform mental feats that are outside their normal modes of thinking which will require extensive discipline that many people would find difficult.  In these circumstances, the amelioration of prejudice cannot be successfully achieved by direction.  It is proper to separate the Applicant from the two other accused.” 

28. [28]
    At the hearing, it was common ground that the prosecution would seek to lead the Gold Coast conversation evidence at any separate trial of the applicant.^[20]  Mr Boulten was “not at all sure that the applicant would succeed in an application to exclude the evidence of the pre-planning between the other two”.^[21]  This is not an instance where it is clear any prejudice that may arise from this evidence would be avoided at a separate trial.^[22] 
29. [29]
    Mr Boulten’s submission seemed to be that the jury would pay more attention to the Gold Coast conversation evidence in a joint trial, simply because they would be charged with deciding whether or not each of CA-1 and CA-2 was guilty of each of the counts on the indictment.  In a separate trial, it was said, the prosecution and the defence would assume the guilt of the two co-accused and the jury would focus only on whether the prosecution had proved its case against the applicant beyond reasonable doubt.  
30. [30]
    As Mr Boulten pointed out, there is no direct evidence of the applicant’s involvement in a plan that may involve serious or very serious harm to the deceased, which might compare with the Gold Coast conversation between CA-1 and CA-2. 
31. [31]
    On the contrary, Mr Boulten pointed to evidence of a conversation between CA-1 and the applicant in a car on the way to the deceased’s flat at Kelvin Grove.  The Crown summary describes this as CA-1 and the applicant “discussing their plan to rob someone”.  Mr Boulten correctly noted this “broad brush” way of describing the conversation does not reveal its full character. 
32. [32]
    According to the witness statement, CA-1 told the occupants of the car (i.e. the applicant, CA-2 and the witness) that “he knew a person in Kelvin Grove that may be able to help get drugs”.  The statement continues:

“During this drive I recall hearing [CA-1] and [the applicant] having a conversation in the back seats of the car.  …

[CA-1] has said something like, ‘If he cant tick^[23] we are going to rob him’

[The applicant] has said something like, ‘We won’t have to do that.’”  

33. [33]
    On the basis of the statements and transcripts there are other matters distinguishing the applicant from his co-accused.  For example, there is no evidence that the applicant armed himself before he went to the deceased’s flat or that he was armed when he arrived there.  The recording does not show the applicant as armed when he entered the flat.  It does not show him attack the deceased in the flat.
34. [34]
    In the transcript of the recording made in a cell shortly after his arrest, the applicant told the LEP he did not have any intention of hurting anyone and he did not know that the person who stabbed the deceased was going to do so. 
35. [35]
    Aside from the Gold Coast conversation, the evidence identified by Mr Boulten as inadmissible in the case against the applicant is evidence of admissions allegedly made by each of CA-1 and CA-2 after the death of the deceased.  This evidence may be briefly stated.

    1. A witness recalls CA-1 said “he had murdered someone” and had “stabbed a guy in the neck with the guy’s own kitchen knife”. 
    2. Another witness says CA-1 told her he had “stabbed him in the neck with a knife I got out of the guys kitchen drawer”. 
    3. Yet another witness says CA-1 told him CA-2 stabbed someone in the neck with a knife that was on the table and that the stabbed person was dead. 
    4. After his arrest, CA-1 told police officers that a man had entered the deceased’s flat and stabbed the deceased in the throat. 
    5. A witness says in the early hours of 18 January 2019 CA-2 told her, in the presence of CA-1, that they had come back from robbing someone and that he (CA-2) had stabbed someone. 
    6. Another witness says CA-2 told her “I stabbed him in the throat”.
36. [36]
    Given the recording, the jury will be able to form a view about the attack and the person or persons who stabbed the deceased.  The prosecution will not submit that the applicant attacked or stabbed the deceased.  As noted above, the prosecution case against the applicant is that he was party to a plan to confront and rob the deceased which contemplated very serious or serious harm to the deceased, with death a probable consequence. 
37. [37]
    Mr Whitbread says the Crown will ask the jury to infer from the recording that:

    1. the applicant arrived at the deceased’s flat with CA-1 and CA-2, remained outside with CA-2 while CA-1 spoke with the deceased inside the flat and attacked the deceased with two knives already in the flat;
    2. although there is no audio on the recording, the conflict between CA-1 and the deceased would have been very noisy, with a chair thrown and voices raised, so that the applicant would have heard the struggle from outside the flat;^[24]
    3. after a short time, the applicant entered the flat with CA-2, who was wearing a mask and carrying a knife, and remained in the doorway or entry area;
    4. the applicant observed CA-1 and CA-2 attacking the deceased with knives, did nothing to assist the deceased, and picked up something from the floor while the attack ensued; and
    5. when the deceased had collapsed on the floor, the applicant departed the flat with CA-1 and CA-2. 
38. [38]
    Mr Whitbread says the prosecution will also ask the jury to accept that, on the recording, the applicant did not appear to be surprised by the knife attack on the deceased and that he must have seen CA-2 carry and put on the mask before CA-2 entered the flat. 
39. [39]
    The jury would have to be satisfied beyond reasonable doubt that the applicant was intending to aid or to give assistance to CA-1 and CA-2 in the robbery by his presence at the flat.  To be criminally responsible for the homicide, the jury would have to be satisfied that the applicant foresaw a likelihood of infliction of harm or, for murder, very serious harm to the deceased. 
40. [40]
    The prosecution may also rely on evidence of the applicant’s conversations with other witnesses after the incident.  One might be a basis to infer the applicant was unsurprised and unaffected by the outcome of the visit to the deceased’s flat with CA-1 and CA-2.  The other conversation involves the applicant disclaiming any intention to hurt anyone.  Like the recording, such evidence would be admissible against the applicant in any trial for these offences. 
41. [41]
    When pressed to identify risk of the positive injustice to the applicant, Mr Boulten responded:

“It’s my submission, here, that this is one of these cases where there is such a significant disparity in the evidence that is admissible on the one hand against the other two, compared to the evidence which is admissible solely in relation to my client on the other, that the disparity is likely to overwhelm the jury against my client in a manner which the proper analysis of the evidence won’t allow for, or should not allow for.”^[25]

42. [42]
    In reply, Mr Boulten put the applicant’s case in this way:

“At a joint trial, the jury will have to determine whether the other two people are guilty.  They will take up the lion’s share of the discussion, the argument [and] consideration, so that by the time they come to consider whether or not the applicant is also guilty, and, if so, of what, they will have already reached conclusions about the existence of a plot, the existence of a plan, the likelihood of violence, the fact that the other two went armed in the same car as my client travelled in and went to the very house with the applicant.  The jury will be invited to infer that the applicant knew that violence was being perpetrated and went into the premises to give effect to it.

… but in circumstances at a separate trial where it’ll be taken as a given that the other two were actually guilty and where there will be no effort made by the applicant to, in that sense, differentiate himself from the decision-making process of the jury.  The jury won’t have to decide the guilt of the other two at a single trial – single accused trial.  Both parties would be conducting it on the basis that there is only one issue, and that is whether it’s proved that the accused was guilty.”^[26]

43. [43]
    Mr Boulten expressed the concern that at a joint trial, by the time the jury turned to consider the case against the applicant, there was “a real risk … the jury will have already dealt with the matter as a group lot, as it were”.^[27]  This seemed to be a submission that a joint trial risked the jury deciding whether or not all three were guilty, rather than whether each was guilty.  He encapsulated the applicant’s concern in this way:

“there’s a real risk that despite the need for very particular focus the atmosphere of a joint trial will be quite different and will potentially lead the jury into a groupthink approach.”^[28]

44. [44]
    Another way of understanding the submission is that the risk is the jury would consider the matters of joint enterprise, common plan and contemplation of what could occur at the deceased’s flat among all three defendants collectively, rather than in respect of each of the defendants separately. 

The directions at a joint trial

45. [45]
    At a joint trial, the judge would give the usual directions that the jury must consider whether the prosecution has proved each element of each offence against each of the defendants and that each defendant is entitled to have his case decided solely on the evidence admissible against him. 
46. [46]
    The judge would also give clear and firm directions as to the evidence admissible against the applicant, to ensure that the jury followed the directions to consider the case against him, without being influenced by the evidence led only against CA-1 and CA-2.^[29]  As the case presently stands, the directions would only concern evidence of the alleged admissions by CA-1 and CA-2 led against each of the co-accused at a joint trial.
47. [47]
    The evidence of witnesses about the alleged admissions by CA-1 and CA-2 does not implicate the applicant.  It was not suggested that CA-1 or CA-2 would give evidence which might implicate the applicant.  The complexities considered in Webb v The Queen (1994) 181 CLR 41 at 65-66 and 92-95 were not part of the applicant’s case for a separate trial.

Consideration of the submissions

48. [48]
    The applicant is charged with the same offences as each of CA-1 and CA-2.  The events leading up to the alleged murder and armed robbery and the guilt or innocence of the applicant and the co-accused are closely interconnected. 
49. [49]
    The presentation of the applicant’s defence and the jury’s consideration of it will not be “swamped” by numerous other charges against other defendants.^[30] 
50. [50]
    The evidence the applicant could exclude at a separate trial would be the evidence of alleged admissions by CA-1 and CA-2 after the attack.  That evidence is about which of the two struck the fatal blow, while both were engaged in the attack on the deceased shown on the recording.  It is not impossible or extremely difficult to disentangle this from the evidence admissible against the applicant.  It can be easily identified in directions and it would not be difficult for a jury to follow them. 
51. [51]
    None of the alleged admissions by CA-1 and CA-2 inculpates the applicant.  They say nothing about the applicant.  In particular, they say nothing about his foreknowledge of what might occur when CA-1 and then CA-2 entered the deceased’s flat.  Any prejudice that might flow from this evidence would have little significance in the overall context of a trial in which the recording would be viewed by the jury. 
52. [52]
    Evidence of alleged admissions by CA-1 or CA-2 might be important to the applicant’s case.^[31]  His defence might point to evidence consistent with CA-1 being shocked and surprised by the actions of CA-2 as a basis for a reasonable doubt  that the applicant contemplated serious harm to the deceased.  
53. [53]
    The evidence of the Gold Coast conversation and about the alleged post-offence admissions may be regarded as prejudicial to the applicant in a general sense.  It may tend to show that the applicant associated with persons who had an intent to commit robbery, equipped themselves with knives and a mask, and stabbed the subject of their robbery plan.  However, that evidence is not highly prejudicial to the applicant.  The same general prejudice might be thought to flow from the evidence of the applicant travelling to Kelvin Grove with CA-1 and CA-2 and the recording showing the applicant being present during the attack on the deceased.  The potential prejudice is not of a kind that may cause a jury to disregard the directions of the trial judge.    
54. [54]
    The applicant is not in the position of the co-accused in Dubois.  Unlike Swan, any evidence admissible only against CA-1 or CA-2 likely to be led from any single witness would not affect the jury’s assessment of that witness’s evidence against the applicant.  There is only one such witness: the driver who picked up the applicant and drove him with CA-1 and CA-2 to Kelvin Grove.  
55. [55]
    The relevant risk identified by Mr Boulten in his reply is that a jury might fail to consider for each of three defendants his individual foreknowledge, planning and the contemplation of what might occur in a robbery of the deceased.  The concern is that at a joint trial the jury will deal with them “as a group lot”. 
56. [56]
    To the extent that such a risk may arise at a joint trial of the applicant and the two co-accused, it must arise in most trials of more than one person accused of jointly committing the same offence or offences.  Notwithstanding this risk, joint trials remain the norm.  That a defendant must share the spotlight with others at a joint trial is not a basis for directing a separate trial. 
57. [57]
    The import of Mr Boulten’s oral submissions was that the applicant should have a separate trial because the evidence against him was “weak”, at least by comparison with the evidence against CA-1 and CA-2.
58. [58]
    It is plain that the prosecution case against the applicant is considerably weaker than that against CA-1 and CA-2.  He did not attack the deceased, as CA-1 and CA-2 are shown to do in the recording.  There is no witness to the applicant agreeing to a plan to rob the deceased, as there is between CA-1 and CA-2.  The prosecution case depends upon the jury drawing inferences from the applicant travelling to Kelvin Grove with CA-1 and CA-2 and the recording showing the applicant present during the fatal attack on the deceased.
59. [59]
    At a joint trial, clear and firm directions would be required.  
60. [60]
    There is no apparent difficulty in formulating a coherent and comprehensible direction to explain the evidence that the jury may consider in the applicant’s case and the evidence admissible only against CA-1 and CA-2.  The evidence is not of a nature that would make such directions ineffective in regulating the jury’s deliberations.  It is not lengthy.  Nor is it complex or confusing.  It heralds the possible commission of a crime, perhaps involving knives and a mask, but it is not so emotive or distressing as might distract a jury from following directions.  Appropriate directions could be formulated and understood readily by a jury. 
61. [61]
    Other usual directions would instruct the jury to consider separately whether the applicant had the requisite knowledge and intention required for the charged counts.  Following such directions could not fairly be described as involving extraordinary mental gymnastics.^[32]   
62. [62]
    If, as anticipated, evidence is led at a joint trial that CA-1 and CA-2 planned a robbery, that CA-1 armed himself with knives and CA-2 brought a mask with him before meeting the applicant, it may make it easier for a jury to conclude that CA-1 and CA-2 had a plan and contemplated serious harm or very serious harm may be inflicted upon the deceased.  The applicant’s absence from those discussions, the absence of evidence that he armed himself, the evidence that, shortly before the attack, the applicant thought they would not have to rob the deceased, that CA-1 entered the flat unarmed, and the absence of direct evidence that he saw CA-1 or CA-2 armed before he entered the flat may make it easier for the jury to entertain a reasonable doubt that the applicant had the necessary intention and knowledge to be guilty of one or both of the charged offences. 
63. [63]
    To the extent that there may be a risk that the applicant’s defence to the weaker prosecution case against him might be prejudiced in some general way by the stronger prosecution cases against CA-1 and CA-2, that prejudice is capable of effective nullification by directions at a joint trial.^[33]
64. [64]
    In the circumstances, I am not persuaded that a joint trial would pose a real risk of positive injustice to the applicant.

Disposition of the application

65. [65]
    The application for a direction for a separate trial should be dismissed.