Western Australian Current Acts Western Australian Current Acts (1) The powers in this
section may be exercised by a court on its own initiative or on an application
by an accused and may be exercised before or during a trial.
(2) A court may amend
or cancel an order made under this section.
(3) If a court is
satisfied that an accused is likely to be prejudiced in the trial of a
prosecution notice or indictment because it contains 2 or more charges, the
court may order —
(a) that
the accused be tried separately on one or more of the charges; and
(b) the
prosecutor to tell the court the order in which the charges will be tried.
(4) If a court is
satisfied that an accused is likely to be prejudiced in the trial of a
prosecution notice or indictment because it also charges one or more other
accused, the court may order —
(a) that
one or more of the accused be tried separately from the other or others; and
(b) the
prosecutor to tell the court the order in which the accused will be tried.
(5) In deciding
whether to make an order under subsection (3) or (4) in respect of an
indictment to be tried by a jury, it is open to a superior court —
(a) to
decide that any likelihood of the accused being prejudiced can be guarded
against by a direction to the jury; and
(b) to
so decide irrespective of the nature of the offence or offences charged; and
(c) to
so decide even if —
(i)
the evidence on one of the charges is inadmissible on
another; or
(ii)
the evidence against one of the accused is not admissible
against another,
as the case requires.
(6) In considering,
for the purposes of this section, the likelihood of an accused being
prejudiced in the trial by a jury of an indictment that contains 2 or more
charges of a sexual nature, the court must not have regard to the possibility
that similar fact evidence, the probative value of which outweighs its
potentially prejudicial effect, may be the result of collusion or suggestion.
(7) If a superior
court makes or refuses to make an order under subsection (3) or (4) before the
day on which the accused’s trial is listed to start, the court must not
start the trial unless the court is satisfied —
(a) that
no party who could commence an appeal against the order or refusal under the
Criminal Appeals Act 2004 section 26 intends to do so; or
(b) that
—
(i)
the time for commencing such an appeal has expired; and
(ii)
any such appeal commenced before the time expired has
been concluded.
[Section 133 amended: No. 2 of 2008 s. 26.]