R v Ford, Jackson, Harrington & Thorn [2008] ACTSC 66 (26 June 2008)

Last Updated: 28 July 2008

R v STEVEN FORD, JOSHUA JACKSON, RYAN HARRINGTON

and JAMES THORN

[2008] ACTSC 66 (26 June 2008)

EX TEMPORE JUDGMENT

No. SCC 317, 318, 319, 321 of 2007

Judge: Higgins CJ

Supreme Court of the ACT

Date: 26 June 2008

IN THE SUPREME COURT OF THE )

) No. SCC 317, 318, 319, 321 of 2007

AUSTRALIAN CAPITAL TERRITORY )

R

v

STEVEN FORD

JOSHUA JACKSON

RYAN HARRINGTON

JAMES THORN

ORDER

Judge: Higgins CJ

Date: 26 June 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The applications of Mr Ford and Mr Jackson for separate trials be granted.

2. Mr Ford be tried separately from Messrs Jackson, Harrington and Thorn.

3. Mr Jackson be tried separately from Messrs Ford, Harrington and Thorn.

1. HIS HONOUR: I say at the outset that in the case of an accusation of a joint enterprise which in this case, of course, is an alleged aggravated robbery embracing an assault occasioning actual bodily harm, it would normally be desirable for each accused to be tried jointly with the others. That, of course, is not an immutable principle, but is one that is the prima facie position.

2. It is desirable to avoid inconsistent verdicts; it is not prejudicial or is fairly prejudicial, for instance, that, at a trial where various accused might give evidence against each other implicating each other or some one or other of them. That is not a reason for ordering separate trials. The reasons for ordering separate trials are, as was cited in R v Fernando [1999] NSWCCA 66 at [210] and, I might say, also cited by Connolly J in the case of R v McBride [2007] ACTSC 8 and in that case set out at [8] of his Honour's judgment, that:

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

(b) Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and

(c) Where there is real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.

3. It follows that the applicants do bear the onus of persuading the court that, to quote Hunt J in R v Midis (unreported, Supreme Court of NSW, 27 March 1991) as cited in Fernando (supra), "positive injustice would be caused to him [or them] in a joint trial."

4. In this case it is plain that the records of interview of Mr Harrington and Mr Thorn, if admitted in evidence in the same trial, would contain material that is very significantly prejudicial to Messrs Ford and Jackson. I appreciate too that there is also some conflict between the records of interview of Messrs Ford and Jackson which might be prejudicial against them, but the major source of prejudice that I have been referred to is that of Mr Harrington's record of interview.

5. It does, of course, depend on how much of that the Crown seeks to rely upon. In theory the Crown could adduce the evidence of admissions made by Mr Harrington and omit any reference to Mr Ford or Mr Jackson that might be prejudicial to them. But that, of course, is to ask the Crown effectively to tie one hand behind its back and prosecute on only half the evidence that is available. That is in relation to, say, Mr Harrington.

6. It would not be ordinarily required of the Crown to weaken its case against one accused in order to protect another accused. I do not think Mr Lundy was, indeed, really asking for that. So I have to assume that the records of interview of the other accused in respect of Mr Ford and Mr Jackson would be heard by the jury in their trial and perhaps seen, and that all these taped records would presumably have been not only done orally, but with video as well. That could lead the jury to endeavour to compare the demeanour of each of the accused, one with the other, and certainly unconsciously, to prefer the version given by one accused as more likely than that given by another to the prejudice of any accused for whom that would be a disadvantage.

7. As discussed with Mr Lundy, there are some advantages, of course, in separate trials and I will not repeat what those advantages may be; save to say, it enables the guilt of the particular accused to be assessed in respect of all the material available against that accused, and could lead to one or other of the accused deciding to give evidence, depending on what has happened in relation to that particular accused, and the Crown could proceed with the strongest case against one of the accused, whichever one it thought was the most likely to be convicted. Upon conviction - if that occurred - that person might well decide to assist the Crown. At least that opportunity would be there.

8. In this case there is certainly material from Mr Harrington's account of it, which is detailed, which a jury might well unconsciously regard as persuasive, even if they formally ignore it as they would be instructed to do. Indeed, Mr Lundy identified that tactical advantage as being a reason why the Crown would prefer to have a joint trial.

9. There are some cases where the implication by one accused of the other is so slight or so severable that it is easier to instruct a jury to ignore it and where one can be confident that it will happen, or at least not persuaded that it will not happen. Unfortunately, I do not think that is so in this case and that is one reason why I propose to accede to the applications of Messrs Ford and Jackson for separate trials from Messrs Harrington and Thorn. I note Messrs Harrington and Thorn make no application for separate trials, at least at this stage.

10. There is another matter and that is the intention on the part of each of Messrs Ford and Jackson to adduce evidence of their own good character. There was a suggestion that they might well be assisted if they could give evidence as to Mr Thorn's bad character, that is to say in relation to his reputation for violence. I say nothing about whether that is the truth, but if that evidence were to be adduced it would plainly be prejudicial to Mr Thorn, even if it did assist Messrs Ford and Jackson. It would be unfair to them not to allow them to adduce such evidence, if it was properly admissible otherwise. Indeed, if it were to be artificially restricted it may permit a case - this is a little speculative - that the Crown would have some evidence of that bad character also and wish to adduce it, but not be able to do so if Mr Thorn was being tried jointly with the others.

11. There is no such inhibition if the trials are separated. There is also the consideration which applies, probably more to Mr Harrington, but would seem probably to Mr Thorn as well, that if Messrs Ford and Jackson gave positive evidence of their good character the contrast with the other two would be apparent. Whilst that is a quandary because one can either direct the jury to disregard the fact that they have given no evidence about their good character which immediately draws attention to it, or just ignore the whole issue and hope the jury does not draw the inference that one fears they will. Either way it is not satisfactory. So that would be another reason which certainly adds to the force of the first reason in acceding to the applications.

12. So I direct a separate trial in relation to Mr Ford.

13. Now I assume that you Messrs Gill and Archer would wish the trials of each of your clients be separate from the other?

14. MR GILL: Yes, your Honour.

15. HIS HONOUR: That is the application. That application is granted so Mr Ford will be tried separately from Messrs Jackson, Harrington and Thorn. Mr Jackson will be tried separately from Messrs Ford, Harrington and Thorn.

16. HIS HONOUR: I make the order in relation to these two applications. The Court will now adjourn.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 11 July 2008

Counsel for the Crown: Mr J Lundy

Solicitor for the Crown: Director of Public Prosecutions for the ACT

Counsel for the applicant Mr Ford: Mr K Archer

Solicitor for the applicant Mr Ford: pappas, j. - attorney

Counsel for the applicant Mr Jackson: Mr S Gill

Solicitor for the applicant Mr Jackson: Legal Aid Office (ACT)

Counsel for the defendant Mr Harrington: Mr R Thomas

Solicitor for the defendant Mr Harrington: John O'Keefe

Counsel for the defendant Mr Thorn: not present

Solicitor for the defendant Mr Thorn: not present

Date of hearing: 26 June 2008

Date of judgment: 26 June 2008