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R v Cage; R v Lowcock; R v Stamp [2024] NSWSC 78 (9 February 2024)

Last Updated: 6 August 2024

Case Name:	R v Cage; R v Lowcock; R v Stamp
Medium Neutral Citation:	[2024] NSWSC 78
Hearing Date(s):	29 January 2024
Date of Orders:	05 February 2024
Decision Date:	9 February 2024
Jurisdiction:	Common Law
Before:	Yehia J
Decision:	(1) Count 4 is severed from the indictment. (2) I order a separate trial in relation to count 4 to be conducted at Newcastle District Court on a date to be fixed. (3) I adjourn count 4 for mention at Newcastle District Court on 14 March 2024 with the accused excused on that day if legally represented.
Catchwords:	CRIMINAL LAW — joinder of counts — severance of counts — whether offences arose out of same set of circumstances — s 29 of the Criminal Procedure Act 1986 (NSW) — where one count relates to an allegation of aggravated sexual assault wholly unrelated to an allegation of murder — where proof of count 4 is wholly irrelevant to proof of other counts — the interests of justice — application of s 29(2) and s 29(3) of the CPA on indictment — application of s 21(2)(b) of the CPA on indictment — whether joinder of count 4 results in a “positive injustice” to co-accused
Legislation Cited:	Crimes Act 1900 (NSW), s 61J(1) Crimes (Local Courts Appeal and Review) Act 2001 (NSW) Criminal Procedure Act 1986 (NSW), ss 3, 29(1), 29(2), 29(3), 290A, 291, 294(3)(a), 294C(1), 294CB Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW) (repealed) Evidence Act 1995 (NSW), s 165 Justices Act 1902 (NSW), s 78A (repealed) Justices (Amendment) Act 1987 (NSW) Justices Legislation Repeal and Amendment Act 2001 (NSW) (repealed)
Cases Cited:	Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250 Domican v R (1989) 43 A Crim R 24 DS v R [2023] NSWCCA 151 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd [1996] NSWSC 104; (1996) 39 NSWLR 160 FX v R; GX v R [2020] NSWCCA 189; 209 A Crim R 31 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 McNamara v the King [2023] HCA 36 Osman v R [2006] NSWCCA 196 R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529 R v Bikic [2000] NSWCCA 106; 112 A Crim R 300 R v CE [2005] NSWCCA 326 R v Christou [1997] AC 117 R v Darwiche [2006] NSWSC 929 R v Early (No 4) [2023] NSWSC 505 R v Hawkins; R v Garland [2023] NSWSC 1201 R v Karimi; R v Khoury; R v Mir (No 1) [2013] NSWSC 156 R v Qaumi & Ors (No 3) (Severance and Separate Trial) [2016] NSWSC 15 R v Roach [ 2019] NSWCCA 160 ; 344 FLR 429 Webb v R (1994) 181 CLR 41; [1994] HCA 30
Texts Cited:	Criminal Procedure Amendment (Justices and Local Courts) Bill 2001 (NSW) Explanatory Note, Criminal Procedure Amendment (Justices and Local Courts) Bill 2001 (NSW) Explanatory Note, Justices (Amendment) Bill 1987 (NSW) Justices (Amendment) Bill 1987 (NSW) Legislative Assembly, Parliamentary Debates (Hansard), 11 November 1987 Legislative Assembly, Parliamentary Debates (Hansard), 4 December 2001
Category:	Procedural rulings
Parties:	Rex (Crown) Elijah Cage (Accused) Max Vincent Lowcock (Accused) Tyson George Stamp (Accused)
Representation:	Counsel: L Shaw (Crown) A Webb (E Cage) L Rowan (M Lowcock) P Krisenthal (T Stamp) Solicitors: Office of the Director of Public Prosecutions (Crown) Adrian Kiely Legal (E Cage) George Sten Lawyers (M Lowcock) Virginia Taylor Partners (T Stamp)
File Number(s):	2021/00321898 (E Cage); 2021/00333188 (M Lowcock); 2021/00314974 (T Stamp)
Publication Restriction:	Pursuant to s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) there is to be no publication of any matter which is likely to lead to the identification of AB.

JUDGMENT

1. Proceedings against Elijah Cage, Max Vincent Lowcock and Tyson George Stamp (“the accused”) commenced by way of indictment dated 25 January 2023 (“the original indictment”). On 29 January 2024, the Crown sought leave to present an amended indictment against each accused. The original indictment contained 6 counts. Leave was granted pursuant to s 20(1) of the Criminal Procedure Act 1986 (NSW) (“CPA”) allowing the Crown to present and file in court an amended indictment. The amended indictment contains 4 counts.
2. There is a non-publication order in respect to the name of the complainant in count 2. The complainant will be referred to in this judgment by the initials “AB”.
3. On arraignment each accused pleaded not guilty to the following counts:

(1) Count 1: On 29 August 2021, at Salt Ash in the State of New South Wales, Elijah Cage, Max Vincent Lowcock and Tyson George Stamp did murder David King.

(2) Count 2: On 29 August 2021, at Salt Ash and other places in the State of New South Wales, while in the company of other persons, Elijah Cage, Max Vincent Lowcock and Tyson George Stamp took AB without her consent and with intent to obtain an advantage, namely, to avoid detection by police.

4. The Crown alleges that it was either Mr Cage or Mr Lowcock who shot David King (“the deceased”). The Crown case against the three accused is one of extended joint criminal enterprise, namely that each accused was party to a joint criminal enterprise to rob the deceased whilst armed and that each foresaw the possibility that the deceased would be shot and killed with at least an intention to inflict grievous bodily harm.
5. Mr Cage and Mr Stamp pleaded guilty to count 3, namely that on 29 August 2021, they did intentionally or recklessly destroy by means of fire a Hyundai Santa Fe, the property of Avis Budget Group.
6. Mr Cage also faces an allegation of sexually assaulting AB in circumstances of aggravation, namely that he deprived her of her liberty for a period before the commission of the offence (previously count 6 on the original indictment, and now count 4 on the amended indictment filed 29 January 2024). He has pleaded not guilty to this charge.
7. A number of pre-trial issues were identified by the parties. Relevantly, for the purpose of this judgment, each accused moves on a Notice of Motion seeking severance of count 4.

The Crown Case

8. The Crown case can be briefly summarised as follows: prior to his death, the deceased, David King, was involved in the supply of illicit drugs. AB was a long-term friend of the deceased and had, on occasion, purchased illicit drugs from him over a number of years prior to August 2021.
9. On 29 August 2021, AB arranged for the deceased to supply a quantity of methylamphetamine to a third party, whom she knew but the deceased did not. In return for arranging this transaction she would receive a quantity of methylamphetamine from the deceased.
10. The accused, Mr Cage, was a family friend of AB. They have known each other for several years prior to August 2021. The accused, Mr Lowcock, also knew AB prior to August 2021. The accused, Mr Stamp, was a friend of Mr Cage. There appears to be no dispute that the accused knew each other prior to August 2021.
11. About two weeks prior to 29 August 2021, Mr Cage had a telephone conversation with Kiara Piening, a mutual associate of Mr Cage and the deceased. This conversation was about the possibility of robbing the deceased. Ms Piening had a sexual relationship with the deceased and purchased drugs from him. During this conversation, Mr Cage asked Ms Piening whether she would be willing to assist him to rob the deceased by arranging a meeting and helping them to get into the deceased’s home so that they could take his drugs and money. Mr Cage also told Ms Piening that he had “the piece” or “a piece” during the course of this conversation. She declined to assist and later warned the deceased that he should not “do business” with Mr Cage.
12. On 20 August 2021, Mr Stamp hired a Hyundai Santa Fe (“the Hyundai”) from Avis Budget Group. The Crown alleges that Mr Stamp hired the vehicle principally for the use of Mr Cage.
13. At about 3:47am on 29 August 2021, Mr Lowcock contacted AB via Facebook messenger, indicating that he wanted to purchase drugs. Later that morning, the pair met at the home of one of AB’s associates where Mr Lowcock purchased 0.3 grams of methylamphetamine from AB for $150.
14. Between 5:39am to 8:59am on 29 August 2021, Mr Cage exchanged text messages with an associate named William Whelan. They discussed sourcing money to buy illicit drugs, including the possibility of robbing someone to do so.
15. At about 8:00am on 29 August 2021, Mr Cage contacted AB, telling her that he wanted to obtain drugs and requested that she source drugs for him. The pair exchanged a number of messages and telephone calls throughout the morning. Mr Cage initially told AB that he wanted one quarter of an ounce of methylamphetamine and was willing to pay $2,400 for this amount.
16. At 11:13am, Mr Cage made a telephone call to another associate named Darcee Martin. The recorded conversation suggests that Mr Cage had identified the deceased as a target of a robbery.
17. AB believed that she was assisting in setting up the sale of methylamphetamine from the deceased to Mr Cage. AB arranged for the deceased and Mr Cage to meet at Paul’s Corner (which is located next to a BP service station) to conduct the transaction. The arrangement was that she would receive 0.8 grams of methylamphetamine for her part in arranging the transaction.
18. At 12:51pm on 29 August 2021, the Hyundai drove through the car park of the BP service station at Paul’s Corner in Salt Ash. The Crown case is that each of the accused was in the vehicle at this time. At 1:20pm, the deceased, driving a Ford Ranger utility, turned into Cecilia Close, Salt Ash.
19. AB, accompanied by Kristina Feeney, drove into Cecilia Close at 1:25pm. AB approached the deceased’s car and observed that Mr Cage was seated in the back as the deceased sat in the driver’s seat. Mr Cage exited the car while the deceased and AB had a conversation, where the deceased asked AB how long she had known Mr Cage. She responded that she had known him for some years and the deceased could trust him.
20. Thereafter, Mr Cage got into the back seat of the deceased’s car, and they discussed the price of the drug transaction. AB was present during this discussion and attempted to facilitate the negotiations. At the same time, Mr Stamp and Mr Lowcock approached the deceased’s car and got into the back seat next to Mr Cage.
21. Mr Cage agreed to pay $5,000 for half an ounce of methylamphetamine. He then instructed his co-accused to get out of the car as there was insufficient room. Mr Stamp and Mr Lowcock got out of the deceased’s car.
22. The deceased told Mr Cage that he did not want to conduct the transaction on Cecilia Close. He drove his vehicle onto Hideaway Drive and pulled over to the side of the road. The Hyundai pulled over behind the deceased’s vehicle. The deceased handed Mr Cage a satchel containing the quantity of methylamphetamine that he had agreed to supply. Mr Cage produced a pipe and put some of the methylamphetamine into the pipe to try the drug.
23. Mr Lowcock approached the deceased’s car and got into the rear passenger seat next to Mr Cage. AB was seated in the front passenger seat of the deceased’s car. Mr Cage and Mr Lowcock got out of the deceased’s car without paying for the drugs. AB also got out of the car and followed Mr Cage, remonstrating him about the fact that he had not paid for the drugs.
24. Mr Cage retrieved a taser from the Hyundai and discharged it towards AB, impacting her chest. It is alleged that Mr Cage told AB that he was going to rob the deceased and pushed past her while he was carrying the taser. He then approached the front passenger side door of the deceased’s vehicle, which was open.
25. Mr Cage is alleged to have entered the deceased’s vehicle and said: “give me all your drugs now, hand me all your drugs now”. The deceased complied with this demand handing over a bag containing a small quantity of drugs. Mr Cage said to the deceased: “that’s not all you have, give me more, then give me all your money.” The deceased picked up a small bag containing a wad of cash. As this was occurring, AB approached the open front passenger side door of the deceased’s vehicle and said to Mr Cage: “you’re not robbing him. You can’t do this. He’s my mum’s friend”. AB was screaming and attempting to persuade Mr Cage not to rob the deceased.
26. Mr Cage is alleged to have kicked AB to the chest, causing her to fall backwards. Mr Cage closed the front passenger side door of the deceased’s vehicle, and the car began to move away along Hideaway Drive. As the car began to move away, Mr Lowcock dived into the deceased’s vehicle to the rear driver’s side passenger door.
27. The deceased drove the car along Hideaway Drive for a short distance. The car was swerving from one side of the road to the other, knocking over mailboxes. The Crown alleges that the deceased was shot once to the rear left hand side of his head and neck, by either Mr Cage or Mr Lowcock.
28. AB heard the noise of a firearm discharge and saw the deceased’s vehicle swerve off the road, striking a letterbox and then a tree. AB then ran after the deceased’s vehicle and observed Mr Cage get out of the vehicle covered in blood. She also observed that the deceased had a gunshot wound to his face. AB saw Mr Lowcock get out of the car, carrying a gun. She also observed that he had blood on him.
29. Mr Cage took a number of items from the deceased’s vehicle. He took hold of AB’s shirt and began pulling her towards the Hyundai. AB attempted to pull away from him. Mr Cage said: “shut the fuck up, you are coming with us”. Mr Lowcock then approached AB and took hold of the left-hand side of her shirt while using his other hand to carry a firearm. Mr Cage and Mr Lowcock both pulled AB towards the vehicle during which time she continued to argue with them, trying to convince them to let her go.
30. Mr Cage got into the rear seat of the Hyundai, pulling AB into the rear seat next to him. Mr Lowcock got into the front passenger seat and Mr Stamp drove the vehicle away from the scene. These are the facts constituting count 2 on the indictment.
31. Police arrived at the scene at 2:05pm, by which time it was evident that the deceased had died.
32. The accused, having detained AB in the vehicle, travelled towards Raymond Terrace. The movements of the vehicle were captured on various CCTV cameras. During that journey, AB was distressed. She was threatened by the accused, Mr Cage and Mr Lowcock.
33. Arrangements were made with Adam Garvey to swap from the Hyundai to his vehicle in an effort to avoid detection by the police. Mr Garvey is a friend of Mr Cage. Soon after, Mr Garvey drove to Raymond Terrace where he picked up AB, Mr Cage and Mr Lowcock. Mr Stamp remained with the Hyundai which he later destroyed.
34. During the journey out of Raymond Terrace, in Mr Garvey’s car, it is alleged that Mr Cage was seated in the back seat next to AB. Sometime during the journey, Mr Cage is alleged to have dismantled the shortened shot gun, breaking it into smaller pieces. It is also alleged that he placed his left hand up the leg of AB under her shorts and attempted to move his hand into her underwear. She immediately moved his hand away. She observed that his hand had blood on it. It is alleged that Mr Cage forcefully pushed his right hand up AB’s shorts, under her underwear, and penetrated her vagina with his fingers. This is the allegation constituting count 4.
35. The allegation of sexual assault (count 4) relates to Mr Cage only. The other accused are not charged with this offence and indeed, there is no evidence that they were aware of the alleged sexual assault.
36. On 1 September 2021 and 3 September 2021, AB participated in recorded interviews with police concerning the events surrounding the death of the deceased.
37. The Crown case statement details post event conduct, some of which is relied upon as constituting consciousness of guilt. It is unnecessary to summarise that conduct because it has little relevance to the present application.

Submissions on behalf of the Accused

38. Although three separate cases, each accused moves on a Notice of Motion seeking severance of count 4. The submissions relied upon by each accused are similar in nature and can be summarised compendiously.
39. By way of Notice of Motion filed on 15 January 2024 the accused Mr Lowcock seeks to sever count 4 from the amended indictment. The accused, Mr Stamp, joined this application by way of a Notice of Motion filed on 16 January 2024. Mr Cage, against whom the charge of sexual assault is laid, also joined the application to sever count 4 by a Notice of Motion filed on 28 January 2024.
40. Each application was separately brought pursuant to s 29 of the CPA. During oral submissions some doubt was raised as to whether the accused Stamp and Lowcock can rely on ss 29(2) and 29(3) of the CPA to make an application to sever count 4. This is a question to which I will return in due course.
41. Count 4 is an offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW). Aggravated sexual assault is a “prescribed sexual offence” defined in s 3 of the CPA and within the meaning of s 290A of the CPA.
42. The accused Lowcock submitted that count 4 ought to be severed from the indictment for a number of reasons. Primary amongst them is the assertion that there is no evidence relevant to the allegation of aggravated sexual assault that informs the facts in issue with respect to counts 1 and 2. It is submitted that count 4 stands in isolation and does not further the allegations in counts 1 and 2 and is not causally related to an extended joint criminal enterprise.
43. Mr Stamp and Mr Lowcock are not charged with the sexual assault of AB. There is no evidence that they held knowledge of, or contemplated, the alleged sexual assault. It is submitted that the joinder of a “prescribed sexual offence” unrelated to each of these accused would import evidence from the complainant that is irrelevant and prejudicial to them and would affect the manner in which the Crown’s primary witness, on the murder, would give her evidence.
44. Mr Stamp and Mr Lowcock submitted that the events comprising count 4 do not arise out of the same set of circumstances as counts 1 and 2. It was also submitted that the sexual assault allegation is not part of a series of offences and is of an entirely different character to that of the other charges. Mr Cage adopts these submissions.
45. Additionally, it is submitted that the sexual offence is likely to elicit “strong emotional responses” from jury members and there is a risk that the jury may engage in “guilt by association” reasoning against the accused Mr Lowcock and Mr Stamp.
46. It is submitted on behalf of all three accused that AB is an essential Crown witness with respect to counts 1 and 2. Her credit and reliability will be central to the issues in the trial, particularly with respect to her role in the events that are alleged to have occurred on 29 August 2021, her relationship with the deceased, and the scope of the potential unreliable witness warning to the jury pursuant to s 165 of the Evidence Act 1995 (NSW).
47. Given the centrality of AB’s evidence with respect to the allegation of murder, there will be a robust challenge to her credibility. As I understand the submissions, she would, in the normal course, be required to give evidence in court.
48. Given that count 4 is a “prescribed sexual offence” within the meaning of s 290A of the CPA, AB would be entitled to give evidence in closed court (s 291 of the CPA); via audio visual link (s 294(3)(a) of the CPA); and to have a support person present (294C(1) of the CPA).
49. Additionally, s 294CB of the CPA would prohibit cross-examination of AB about her sexual relationship with the deceased. The accused submit that this sexual relationship is a significant area of proposed cross-examination of the witness which is said to be relevant and probative of her motive to lie in her evidence.
50. Whether pursuant to s 29(3) of the CPA or looking to the common law, each accused submitted that joinder of count 4 would result in a “positive injustice” which cannot be cured by judicial direction. It is submitted the only remedy is to sever count 4.

Crown Submissions

51. During oral submissions the Crown contended that s 29 of the CPA is not available to the accused Mr Stamp and Mr Lowcock as a basis for severance because ss 29(2) and 29(3) do not apply to proceedings on indictment. In making that submission the Crown relied on McNamara v R [2023] HCA 36 (“McNamara”) at [30]-[33].
52. The Crown accepts that Mr Cage can apply to sever count 4 pursuant to s 29(1) of the CPA. The Crown also accepts that Mr Stamp and Mr Lowcock can apply to sever count 4 under common law principles relating to a fair trial but must establish a “positive injustice” would occur unless count 4 is severed.
53. The Crown submitted that the joinder of counts 1 to 4 on the indictment is on the basis that all the alleged offences arose out of the “same set of circumstances” within the meaning of s 29(1)(b) of the CPA. The sexual assault of AB is alleged to have occurred shortly after the events in which the deceased was fatally shot. The sexual assault contains a circumstance of aggravation, namely, that AB was deprived of her liberty for a period of time before the commission of the offence. The Crown submitted that AB’s deprivation is the circumstance that links the sexual assault allegation to count 2 (which alleges that all three accused detained AB immediately after the shooting of the deceased).
54. A further circumstance linking the offences is said to be the observations made by AB that when Mr Cage digitally penetrated her vagina, he had blood on his hands. The inference the Crown will invite the jury to draw, is that the blood was that of the deceased.
55. The alleged sexual assault perpetrated on AB, is said to be relevant to a fact in issue, namely each accused’s disregard for her. It is relevant to whether she was a “dupe” in the plan to rob the deceased, or whether she was aware and a willing party to the robbery.
56. It is difficult to accept this submission in circumstances where the evidence relating to the allegation of sexual assault is not admissible, and cannot be relied upon by the jury, in the cases of Mr Stamp and Mr Lowcock. Put another way, the Crown could not rely upon the allegation of sexual assault to submit that it demonstrates the other accused’s disregard for the complainant or as relevant to whether or not she was a “dupe” in the plan to rob the deceased.
57. The sexual assault allegedly committed upon AB is also relied upon as relevant to her fear and lack of complete candour with investigating police in her interviews on 1 September 2021 and 3 September 2021.
58. The Crown concedes that the allegation of sexual assault does not form and was not part of a series of offences of the same or similar character for the purposes of s 29(1)(c) of the CPA.
59. In response to the assertion that it is in the interests of justice that count 4 be severed, the Crown submitted that the relevance of any purported sexual relationship between the deceased and AB is not known, apart from the suggestion that it gives her a motive to lie. Furthermore, the Crown (in written submissions) suggested that the accused’s representatives may be able to cross-examine AB in relation to any previous sexual relationship with the deceased if they were to satisfy one of the exceptions under s 294CB of the CPA.
60. In oral submissions, the Crown conceded that none of the exceptions pursuant to s 294CB of the CPA are satisfied and therefore the accused would not be able to cross-examine AB about any sexual relationship she may have had with the deceased. However, the Crown submitted that there is a volume of material to demonstrate that AB had a very close relationship with the deceased.
61. The Crown emphasises that the interests of justice are not limited to the interests of the accused. They include the interests of the Crown, the witnesses and the public. In that regard, severance would involve additional time, costs and inconvenience to witnesses. The Crown submitted that in addition to AB, other witnesses and evidence would have to be called again in a separate trial with respect to the allegation of sexual assault.

Consideration

Application of s 29(2) and 29(3) of the CPA to proceedings on indictment

62. In R v Christou [1997] AC 117 Lord Taylor described the factors to be taken into account on an application to sever counts in an indictment. His Lordship said at 129:

“...They will vary from case to case, but the essential criterion is the achievement of a fair resolution of the issues. That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are: how discrete or interrelated are the fact giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families and on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together.”

63. Before considering these factors in the present case, it is necessary to say something about the application of ss 29(2) and 29(3) of the CPA to proceedings on indictment. It has become apparent that ss 21 and 29 of the CPA are sometimes conflated in practice. It is important to bear in mind that they have different purposes. It is also important to bear in mind that in practice an application by an accused to be tried separately from another accused can be a distinct and separate matter from an application to sever a count on an indictment, charged against a co-accused only (as in the present case). The latter does not necessarily result in a separate trial from a co-accused on the counts which both are charged jointly, but rather the separate trial of the co-accused on the count that is severed.
64. Section 29 provides:

29 When more than one offence may be heard at the same time

(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances—

(a) the accused person and the prosecutor consent,
(b) the offences arise out of the same set of circumstances,
(c) the offences form or are part of a series of offences of the same or a similar character.

(2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances—

(a) the accused persons and the prosecutor consent,
(b) the offences arise out of the same set of circumstances,
(c) the offences form or are part of a series of offences of the same or a similar character.

(3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

65. Prior to the judgment of Gageler CJ, Gleeson and Jagot JJ in McNamara (see [30]-[33]), it appears that ss 29(2) and 29(3) of the CPA were considered applicable on indictment.
66. The origin, construction and application of s 29 of the CPA were considered in FX v R; GX v R [2020] NSWCCA 189 (“FX”) at [164]-[176], [192]-[206] where it was held that two accused persons had consented to a joint trial for the purpose of s 29(2)(a) but that, in any event, it would have been open to the trial judge to conclude that the requirements of s 29(2)(c) had been satisfied and that, for the purpose of s 29(3), the interests of justice did not require that the trials of the accused persons should proceed separately. The key question in FX related to the concept of “consent” in the context of s 29(2)(a) of the CPA, but the Court did address some principles of assistance in understanding the general operation of s 29 of the CPA at [164]-[166], [171]:

“[164] Section 29 Criminal Procedure Act 1986 is the successor to s.78A Justices Act 1902. Section 78A was repealed in 2001 and re-enacted (in an amended form) as s.29 Criminal Procedure Act 1986. Whereas s.78A Justices Act 1902 applied to summary hearings only in the Local Court, s.29 lies within Part 3 of Chapter 2 of the Criminal Procedure Act 1986 which is entitled “Criminal proceedings generally” and which Part applies, to the extent it is capable of being applied, to all offences, however arising (whether by statute or at common law), whenever committed and in whatever court dealt with: s.28(1) Criminal Procedure Act 1986.

[165] Accordingly, since 2001, ss 21 and 29 Criminal Procedure Act 1986 have been applied when issues of joinder of counts against one accused person and joinder of counts against two or more accused persons arise for consideration in trials on indictment.

[166] Decisions of single Judges and of this Court on separate trial applications have addressed both ss 21 and 29 see, for example R v Qaumi and Ors (No. 3) (severance and separate trial) [2016] NSWSC 15 at [83]- [97], [121]; Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105 at [47]- [53].

...

[171] The phrase “part of a series of offences [or crimes] of the same or a similar character” now in s.29(2)(c) Criminal Procedure Act 1986 had its origin in the Indictments Act 1915 (UK). The meaning of the word “series” in that context was described by Dixon J as “somewhat vague, but it connotes some connection between the crimes”: Packett v The King [1937] HCA 53; (1937) 58 CLR 190 at 207; [1937] HCA 53. In Sutton v The Queen (1983-1984) 152 CLR 528; [1984] HCA 5, Brennan J said at 540-541:

‘If the offences are similar in character, they may constitute a series. ‘Series’ does not import a clear criterion for determining what charges may be joined in the same information. Perhaps little more can be said about its meaning than Dixon J. said in Packett v. The King [1937] HCA 53; (1937) 58 CLR 190, at p 207, namely, that ‘it connotes some connection between the crimes’.”

67. The judgment of Gageler CJ, Gleeson and Jagot JJ in McNamara, appears to make clear at [30]-[32] that s 29(2) and s 29(3) have no application to proceedings on indictment:

“[30] To confine one jury to one trial on one indictment has never been thought incompatible with charging one accused with more than one offence on one indictment or with charging multiple accused with one or more offences on one indictment as occurred in the present case. In this respect, something needs to be said of two provisions of the Criminal Procedure Act which have sometimes of late been conflated in practice but which have different provenances and distinct operations.

[31] The first is s 21(2)(b), which appears within Pt 2 headed "Indictments and other matters". Section 21(2)(b) is expressed to empower a court to "order a separate trial of any count or counts of [an] indictment" if the court forms the opinion that "it is desirable to direct that an accused person be tried separately for any one or more offences charged in [the] indictment". The reference to "an accused person" is to any accused person charged in the one indictment. That provision assumes the capacity of the Crown to charge multiple accused with one or more offences on one indictment, thereby resulting in a single trial, and restates the power which a court had at common law nevertheless to order separate trials and thereby to bring about a severance of the indictment.

[32] The second is s 29(2), which appears within Pt 3 headed "Criminal proceedings generally" and which is explained by s 28(1) to apply "to the extent that it is capable of being applied, to all offences, however arising ... in whatever court dealt with". Section 29(2) is expressed to empower a court in specified circumstances to "hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons" subject to the prohibition in s 29(3) that "[p]roceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice". Despite the generality of their language, s 29(2) and (3) are properly construed against the background of the provenance of s 29 in the Justices Act 1902 (NSW) and its subsequent legislative history as confined to summary proceedings. In respect of summary proceedings, as Munday v Gill established, the "one indictment, one jury" rule had no analogue: separate proceedings against different accused charged on different informations could be heard together without affecting the jurisdiction of the justices to hear them.” (Footnotes omitted.)

68. To understand this conclusion, it is necessary to trace the legislative history of s 29(1). Section 29 of the CPA was inserted by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW). It sits in Pt 3, Ch 2 of the CPA. Section 29 was included in Schedule 1 of the Criminal Procedure Amendment (Justices and Local Courts) Bill 2001 (NSW).
69. When the Criminal Procedure Amendment (Justices and Local Courts) Bill was read for the second time in the Legislative Assembly, the following was said (Legislative Assembly, Parliamentary Debates (Hansard), 4 December 2001 at 19492):

“The Criminal Procedure Amendment (Justices and Local Courts) Bill sets out the procedure for dealing with criminal matters in the Local Court. The bill amends the Criminal Procedure Act 1986. This means that all the provisions for dealing with criminal cases across New South Wales jurisdictions will be found in the one piece of legislation.”

70. With respect to Chapter 2 of the CPA, the Explanatory Note to the Criminal Procedure Amendment (Justices and Local Courts) Bill states the following:

“Schedule 1 Amendments

Amendments relating to criminal law generally

The proposed Schedule amends the Criminal Procedure Act 1986 (the Principal Act) so as to group provisions applying generally to the criminal law, offences and criminal proceedings. The amendments do this by re-numbering existing provisions of the Principal Act and by re-enacting provisions of the Justices Act 1902 (the Justices Act). In cases where provisions of the Principal Act and Justices Act currently have the same or a similar effect, the provisions of the Principal Act have been retained and applied in respect of criminal proceedings to which the Justices Act currently applies. The regrouped provisions are to be contained in proposed Chapter 2 of the Principal Act as re-numbered.”

71. In light of the above, it is necessary to consider that the provisions contained within s 29 of the CPA (as it currently stands) were previously enacted in s 78A of the Justices Act 1902 (NSW).
72. Section 78A provides:

78A Provision for hearing cases together

(1) Where the defendant is charged with 2 or more offences, the Justice or Justices have jurisdiction to hear and determine the charges together if:

(a) the defendant and the informant or complainant consent,
(b) the offences arise out of the same set of circumstances, or
(c) the offences form or are part of a series of offences of the same or a similar character.

(2) Where 2 or more defendants are separately charged with offences, the Justice or Justices have jurisdiction to hear and determine the charges together, if:

(a) the defendants and the informants or complainants consent,
(b) the offences arise out of the same set of circumstances, or
(c) the offences form or are part of a series of offences of the same or a similar character.

(3) Any such charges shall not be heard and determined together if the Justice or Justices are of the opinion that the charges ought to be heard and determined separately in the interests of justice.

73. Section 78A was inserted into the Justices Act by the Justices (Amendment) Act 1987 (NSW). Bell J commented in R v Darwiche [2006] NSWSC 929 (“Darwiche”) at [117]:

“...The reason for its enactment appears to have been in order to overcome the requirement for the consent of one or more defendants, or for related charges against the one defendant, before they might be heard together by a magistrate. ...”

74. When the Justices (Amendment) Bill 1987 (NSW) was read for the second time in the Legislative Assembly, the following was stated by the Attorney-General (Legislative Assembly, Parliamentary Debates (Hansard), 11 November 1987 at 15833):

“The second purpose of the Bill is to insert a new section 78A of the Justices Act to enable summary matters involving one or more defendants, or related charges against one defendant, to be heard together without the consent of the parties when the charges arise out of the same set of circumstances or are, or form part of, a series of offences of the same or a similar character. Provision is made also to enable multiple related matters to be heard together where these criteria are not met but the prosecution and the defence both consent. In all of these circumstances the magistrate hearing the matters will retain a discretion to order that the charges be heard separately if he or she considers it is in the interests of justice to do so. Under the existing section 78A of the Justices Act charges involving joint defendants or related charges against a single defendant may be heard together only if both parties consent. It is therefore possible for a party to force a separate hearing for each matter merely by withholding consent, even though common sense would suggest that the matters be heard together. The result is a duplication of evidence, gross inconvenience and additional expense to witnesses, and the wasting of valuable court time.

By removing the prerequisite of consent the procedure in the Local Courts will be consistent with that adopted by the higher courts. In both the District Court and Supreme Court the judge has a discretion to hear charges at the same time, irrespective of the number of accused persons, and does not rely upon the consent of the accused or the prosecution.”

75. The Explanatory Note to the Justices (Amendment) Bill 1987 (NSW) also indicates the following with respect to the purpose of the introduction of s 78A:

“Schedule 1(2) substitutes section 78A of the Principal Act. The new section 78A expands the circumstances in which a Justice or Justices may hear charges together. At present, charges may be heard together only with the consent of the parties. The new section 78A will also allow a Justice or Justices to hear charges together if the alleged offences arise out of the same sets of circumstances or form or are part of a series of offences of the same or a similar character.”

76. The Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW) (which inserted s 29 into the CPA) was introduced with two other pieces of legislation; the Justices Legislation Repeal and Amendment Act 2001 (NSW) and the Crimes (Local Courts Appeal and Review) Act 2001 (NSW). As noted in Darwiche at [118] this suite of legislation effected significant operational changes to Local Courts. At the point at which the Criminal Procedure Amendment (Justices and Local Courts) Act was enacted, its predecessor, the Justices Act was complex, disjointed, procedure oriented and difficult to interpret. This was largely due to the fact that the Justices Act was a consolidation of colonial legislation and over time had been amended “hundreds of times in an attempt to graft contemporary practices and procedures onto the original structure” (Legislative Assembly, Parliamentary Debates (Hansard), 4 December 2001 at 19428).
77. With respect to s 29, Bell J considered in Darwiche that when the provision was viewed in light of the parcel of legislation in which it was introduced, “it is not clear that the inclusion of s 29 in Pt 3 of the CPA was intended to effect material change to the law with respect to the joinder of offences on indictment.”: see Darwiche at [118]. Bell J ultimately concluded at [120] that:

“It is not necessary for me to determine what, if any, change to the law relating to the joinder of offences in the indictment has been effected by the introduction of s 29 into Pt 3 of the CPA, since I am satisfied that the offences form or are part of a series of offences of the same or of a similar character. I do not consider the circumstance that the accused Abbas Osman is not charged with each of the offences in the indictment forming part of that series to mean that the provisions of s 29(2)(c) are not met.”

78. Although there has been no consideration of what has been said in McNamara (at [30]-[33]), I am bound by the conclusion reached therein, namely, that ss 29(2) and 29(3) do not apply to proceedings on indictment. It follows that the accused Mr Stamp and Mr Lowcock cannot make an application to sever count 4 pursuant to these subsections.

S 29(1)(b) of the CPA – Application to sever count 4 on behalf of Mr Cage

79. Mr Cage makes an application to sever count 4 pursuant to s 29(1). Sections 29(1)(b) and 29(2)(b) are in identical terms.
80. With respect to the purpose of s 29(1) of the CPA, Bathurst CJ, Bell P (as his Honour then was) and Johnson J observed in R v Roach  [2019] NSWCCA 160 ; 344 FLR 429 (“Roach") at [80] that s 29(1) – the subsections of which are in the same terms as s 29(2) – is designed to facilitate the fair and efficient disposition of criminal justice and affords the Court a broad power to hear and determine related offences.
81. Building on this understanding, I said, in the decision of DS v R [2023] NSWCCA 151 (“DS”) that “the expression “arise out of”, used in ss 29(1)(b) and 29(2)(b), is of particular broad ambit and is used in other contexts to promote the efficient resolution of related disputes” citing Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd [1996] NSWSC 104; (1996) 39 NSWLR 160 at 165 (noting that this decision dealt with arbitration agreements).
82. The Court in DS upheld the decision of the District Court to refuse an application to sever an indictment. The applicant sought leave to appeal on two grounds, one of which was “that the trial judge erred in refusing the application to sever the indictment prior to the commencement of the trial which led to a miscarriage of justice and an unfair trial”: DS at [5].
83. However, the facts in DS were very different and distinguishable from the present case. In DS the applicant was charged with nine counts of physical and sexual assault against his former partner, the complainant. Of relevance to the appeal, counts 4 (aggravated sexual intercourse without consent) and 5 (attempted sexual intercourse without consent) related to an allegation the applicant dragged the complainant to a dog kennel and had sexual intercourse with the complainant, without her consent. At trial, the Crown led evidence the applicant attempted to insert their dog’s penis into the complainant’s vagina, however, the complainant gave evidence to the effect that she was not penetrated. The Crown applied to amend count 5 to reflect the complainant’s evidence. The application was refused and consequently the Crown directed that no further proceedings would be taken with respect to count 5. An application to discharge the jury by reason of the prejudicial effect of the evidence adduced in support of count 5 was rejected.
84. On appeal, the applicant submitted that the trial judge erred in refusing the application to sever counts 4 and 5 from the indictment prior to the commencement of the trial which led to a miscarriage of justice. Specifically, and with respect to counts 4 and 5, although two separate allegations, the Court found they are “proximate in time and location”: DS at [21].
85. Importantly, however, the allegations against the applicant, involved acts of physical and sexual violence between November 1992 and November 2018 perpetrated by the applicant against the complainant, his de facto partner. This occurred in the context of a long-term relationship between the applicant and the complainant: DS at [8]. The Court discussed the trial judge’s characterisation of the applicant and complainant’s relationship in the following way at [91] of that decision:

“The Crown case was that the long relationship featured enduring and repeated physical and sexual violence. The trial judge expressly referred to this feature in her judgment. A discrete number of five instances had been selected from over a period of approximately 25 years, which were particularly or starkly memorable to the complainant and where a number of her daughters had witnessed the injuries inflicted as a result of the violence. The Crown was permitted to rely upon context evidence to the effect that the relationship involved repeated instances of violence perpetrated by the applicant against the complainant, and the trial judge directed the jury on the use of context evidence in the summing up.”

86. In upholding the lower Court’s decision, the Court concluded that the offending the subject of the appeal had arisen out of the same set of circumstances. In DS at [90], I said that in referring to the test in s 29(1) – subsection (1)(b) of which also includes the phrase “same set of circumstances” – that set of circumstances was “the relationship between the applicant and the complainant.” The set of circumstances from which counts 4 and 5 and the remainder of charges stemmed from in DS were considered in the context of an ongoing long-term relationship characterised by violence. This is clearly distinguishable from the present case where the set of circumstances giving rise to counts 1-3, are different from the set of circumstances giving rise to count 4.
87. While there may be some temporal connection between the circumstances giving rise to each count – as is the case with respect to all of the present charges – that is not sufficient to satisfy the requirement of s 29(1)(b). In my view, something more than a mere temporal connection is required. In DS, while there was a connection between the allegations in time and place, the substantive connection between them related to the context in which the offences were alleged to have been committed. The relationship between the accused and complainant was critical to that context.
88. Although count 4 contains a circumstance of aggravation, namely, that the complainant was deprived of her liberty for a period of time before the commission of the offence, that does not establish that count 4 arose from “the same set of circumstances” as the other counts on the amended indictment. Additionally, count 2 does not allege that AB was detained with an intention to sexually assault her, but rather with an intention to avoid detection by police. The relevant intention for the purposes of count 2 is entirely different to the relevant elements of count 4.
89. Furthermore, there are a number of intervening events between the circumstances giving rise to counts 1 and 2, and the circumstances giving rise to count 4. Those events include arrangements being made with Adam Garvey to swap his vehicle; the accused Mr Lowcock and Mr Cage getting into Mr Garvey’s vehicle with AB; Mr Garvey driving out of Raymond Terrace and towards Newcastle; Mr Cage dismantling the shortened shot gun and breaking it down into smaller pieces; and the group driving through the outlying suburbs of Newcastle before approaching Mayfield.
90. In addition, while the observations of AB include that Mr Cage had blood on his hands when he digitally penetrated her vagina, these observations do not connect the offences in such a way that can lead to a conclusion they arose out of the same set of circumstances. In any case, there is no issue in this trial that Mr Cage was present when the deceased was shot.
91. R v Karimi; R v Khoury; R v Mir (No 1) [2013] NSWSC 156 (“Karimi”) involved an application by one of three accused to sever four counts on an indictment. The accused were charged with conspiracy, larceny, robbery, being armed with an offensive weapon, murder, conspiracy to murder and possessing a firearm without being authorised and in the presence of others. The severance application related to conspiracy to rob, conspiracy to murder, possessing an offensive weapon while in company and possessing a firearm without being authorised to do so. Much of the consideration of the case was directed to the terms of ss 29(1)(b) and 29(3). Johnson J ultimately considered with respect to s 29(1)(b) that a number of factors weighed in characterising the counts as arising out of the same set of circumstances. These factors included a temporal connection between the offending, the co-offender’s involvement in planned offending and links between “persons and weapons” at [32]:

“In circumstances where, within a period of days, it is alleged that persons were involved in planned criminal activities involving the use of weapons, including the .22 shortened firearm and the machete, and that there are links between these persons and weapons, I am satisfied that it can be said that the offences arise out of the same set of circumstances or are part of a series of offences of the same or a similar character. The linkage between persons and items and the readiness of members of the group, on the Crown case, to utilise these weapons are factors pertinent to this conclusion.”

92. The circumstances are again distinguishable. In Karimi, not only was there a temporal connection between the offending but the evidence included common involvement in planned offending and links between individuals and weapons used.
93. In R v Qaumi & Ors (No 3) (Severance and Separate Trial) [2016] NSWSC 15 (“Qaumi”) Hamill J dealt with eight accused who stood charged on a single indictment with a total of 36 offences said to have occurred between July 2013 and January 2014.
94. It was agreed between the accused (and his Honour was satisfied that) counts 11-29 of the indictment arose out of the same set of circumstances, those circumstances being, the “activities of a criminal gang known as the Blacktown Chapter of the Brothers for Life (BFL Blacktown)” or “differences and violent animosity which existed between the Blacktown and Bankstown chapters of the BFL”: at [1], [87]. With respect to the remainder of the charges, some of the accused submitted a number of those charges were “motivated by different and disparate things” and it could therefore not be said they were offences of a similar character: at [90]. His Honour was not disposed to find that a “set of circumstances” for the purposes of s 29(1)(b) could be so “loosely defined as the criminal activities of the BFL Blacktown.”: at [91]. His Honour was however, satisfied at [91] that in respect of various other counts, those offences were “part of a series of offences of the same or similar character” largely because the offences:

“...involved members of the BFL Blacktown discharging firearms in the course of the commission of serious criminal offences. Each involved members of the group acting at the direction of either Farhad or Mumtaz. My somewhat tentative view is that such similarities are sufficient to fall within the provision in s 29 (1)(c).”

95. Once again, insofar as some counts were joined, the facts can be distinguished from the present case. In Qaumi, the joint counts arose out of the same set of circumstances which included the common activities of a criminal gang; the differences and animosity which existed between different chapters of the same criminal gang; and the fact that each member of the group acted at the direction of two particular members of the same group.
96. I am not satisfied that the offence of sexual assault arises out of “the same set of circumstances” as counts 1-3, in the way comprehended by s 29(1)(b) of the CPA. It is conceded by the Crown that the offences do not form and are not part of a series of offences of the same or similar character: s 29(1)(c) of the CPA.

Section 21 of the CPA - can the accused Stamp and Lowcock make an application to sever count 4 pursuant to s 21(2)(b) of the CPA?

97. Section 21 provides:

21 Orders for amendment of indictment, separate trial and postponement of trial

(1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.

(2) If of the opinion—

(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or
(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,

the court may order a separate trial of any count or counts of the indictment.

98. With respect to the power in s 21(2)(b) for a court to direct an accused be tried separately for any one or more offences charged in an indictment, Gageler CJ, Gleeson and Jagot JJ, said the following in McNamara at [30]-[31]:

“[30] To confine one jury to one trial on one indictment has never been thought incompatible with charging one accused with more than one offence on one indictment or with charging multiple accused with one or more offences on one indictment as occurred in the present case. In this respect, something needs to be said of two provisions of the Criminal Procedure Act which have sometimes of late been conflated in practice[34] but which have different provenances and distinct operations.” (Footnotes omitted.)

[31] The first is s 21(2)(b), which appears within Pt 2 headed "Indictments and other matters". Section 21(2)(b) is expressed to empower a court to "order a separate trial of any count or counts of [an] indictment" if the court forms the opinion that "it is desirable to direct that an accused person be tried separately for any one or more offences charged in [the] indictment". The reference to "an accused person" is to any accused person charged in the one indictment. That provision assumes the capacity of the Crown to charge multiple accused with one or more offences on one indictment, thereby resulting in a single trial, and restates the power which a court had at common law nevertheless to order separate trials and thereby to bring about a severance of the indictment.”

99. Consideration of s 21(2)(b) of the CPA has, in the main, involved applications to separate trials, as opposed to applications by an accused to be tried separately for any one or more offences charged on indictment. The question of whether to make an order under s 21(2)(b) is a discretionary one. The appropriate disposition of such an application involves a close examination of the facts and evidence in the particular case, the extent of prejudice to an accused, and the availability of appropriate directions to cure that prejudice: R v Hawkins; R v Garland [2023] NSWSC 1201 per Hamill J at [39], [94] .
100. In an application such as this, the exercise of discretion is based on well- established principles. Where a Crown case is that the accused were party to some form of joint enterprise, the starting point is that they should be tried jointly: Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 88-89; [1994] HCA 30 at [25] per Toohey J; Domican v R (1989) 43 A Crim R 24 per Hunt J at 26.
101. The accused bears the onus of establishing the reasons for the making of an order granting the separate trial of one of the counts on the indictment: R v Bikic [2000] NSWCCA 106; 112 A Crim R 300. To succeed, an accused must demonstrate that there is a real risk that a “positive injustice” would be caused to him or her as a consequence of a joinder: R v CE [2005] NSWCCA 326 per Grove J at [4]-[5].
102. I am satisfied that the accused Stamp and Lowcock have available to them s 21(2)(b) of the CPA. The power to sever the indictment by ordering separate trials of any one or more charges against any one or more accused is available under s 21(2)(b): see McNamara at [41]. I am also satisfied that each of these accused has established that a “positive injustice” would result by reason of being tried on an indictment that joins count 4.
103. The precise “positive injustice” is addressed below in the context of my consideration of the interests of justice.

Interests of justice considerations under the common law

104. Joinder of count 4, a “prescribed sexual offence”, would result in AB giving evidence by audio-visual link. AB is the primary prosecution witness with respect to both counts 1 and 2. Her credibility and reliability will be the subject of robust challenge. In the normal course, AB would be required to give evidence in court before the jury. Constraining a party to cross-examining a witness by video link will not always, but may sometimes, involve a degree of unfairness to that party, depending on all the circumstances of the case. The assessment of unfairness necessarily involves a judgement of an evaluative character: Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 25, per Bell P (as his Honour then was), and with whom Bathurst CJ and Payne JA agreed at [50].
105. In R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529, Hamill J said, at [34]:

“As I did in R v Al Batat (No 1), I prefer to follow the more recent decision of the Court of Appeal. That is, I am satisfied that where an important witness is to be subject to a credibility attack, it is preferable that the witness gives evidence in the courtroom. This approach accords with observations made in other cases decided at first instance: ASIC v Rich [2004] NSWSC 467; (2004) 49 ACSR 578 at [22] (Austin J) and Hughes v Whittens Group P/L [2017] NSWSC 329 at [21].”

106. In R v Early (No 4) [2023] NSWSC 505 (“Early (No 4)”) at [32], I referred to the observations of Hamill J, cited above. In Early (No 4), the issue of whether a witness could give evidence via AVL arose. It was submitted by the accused, at [25], that given the serious nature of the charge (murder) the accused was entitled to ensure that the jury was in the “best possible position to observe the demeanour” of the witness to properly assess his credibility and reliability.
107. In that case, I said at [35]:

“That does not mean, however, that cost efficiency and the desire to reduce inconvenience eclipse the fundamental right of an accused to a fair trial. In some cases, a fair trial will require the attendance of a witness in court to give evidence in person. That is because in some cases the evidence is crucial to the Crown case; the witness may have given several accounts, not all consistent; cross-examination may be impeded if the witness were to give evidence by AVL; and to the extent the demeanour is relevant to an assessment of credibility and reliability, attendance in person may provide a jury with a better opportunity to assess those factors. Each case will depend upon its particular circumstances.”

108. Furthermore, although the accused would be able to cross-examine AB about her close friendship with the deceased, they would be prohibited from cross-examining her about any sexual relationship she had with him. The nature and intimacy of the relationship between AB and the deceased, is relevant to any asserted motive for her to lie by minimising the role played by the deceased in the incident.
109. The way in which AB would give her evidence as a complainant of a “prescribed sexual offence”, is different, in important respects, to the way in which she would give her evidence as a witness in a trial involving an allegation of murder.
110. The additional prejudice to the accused Mr Stamp and Mr Lowcock arises from the assertion in the Crown case that they were close friends of Mr Cage at the relevant time and that they continued to associate after 29 August 2021. Allegations involving sexual assault are likely to evoke strong emotional responses which may impermissibly influence members of the jury. There is a risk that some members of the jury would engage in “guilt by association” reasoning which would adversely impact upon the case of Mr Lowcock and Mr Stamp.
111. There is also a risk that the jury would misuse the evidence relating to the sexual assault allegation. Such misuse is demonstrated in the Crown’s written submissions where the Crown contends that the “treatment of AB at the hands of Mr Cage is relevant to a fact in issue, namely their disregard for her. It is relevant to whether she was used as a “dupe” in the plan to rob David King on 29 August 2021, or whether she was aware and a willing party to a planned robbery of David King, as may be suggested by the defence.”
112. This submission is misconceived. The evidence relating to the allegation of sexual assault is not relevant or admissible in the case of the accused Mr Stamp and Mr Lowcock. The submission demonstrates the way in which the evidence of sexual assault might be misused by the jury.
113. The factors identified as giving rise to prejudice are not to be assessed separately but considered in their totality for the purpose of determining whether count 4 ought to be heard and determined separately in the interests of justice. The interests of justice are not, however, limited to the interests of the accused.
114. In the context of s 29(3) the interests of justice encompass the interests of the Crown, witnesses, and the public: see Roach at [82], citing Osman v R [2006] NSWCCA 196 at [22]. In a different context, the High Court of Australia has observed that the interests of justice will often pull in different directions, involving consideration of the interests of an appellant (an accused person) as well as the interests of the Crown and the community: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32].
115. In Roach, the Court said at [80]-[82]:

“[80] Section 29(1) is an important provision designed to promote and facilitate the fair and efficient disposition of criminal justice. It affords the court a broad power to hear and determine related offences. In this regard, as Mr Glissan QC accepted, the expression “arise out of” in subsection (b) is of particularly broad ambit. It is an expression which is used in other contexts to promote the efficient resolution of related disputes: Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd [1996] NSWSC 104; (1996) 39 NSWLR 160 at 165.

[81] Section 29(3) Criminal Procedure Act is also important:

‘Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.’

[82] In the context of s 29(3), this Court has observed that the interests of justice extend beyond the interests of an accused person, with the interests of the Crown, witnesses and the public to be considered as well: Osman v R [2006] NSWCCA 196 at [22]. In a different context, the High Court of Australia has observed that the interests of justice will often pull in different directions, involving consideration of the interests of an appellant (an accused person) as well as the interests of the Crown and the community: Kentwell v The Queen (2014) 252 CLR 601 at 614; [2014] HCA 37 at [32].”

116. In the event count 4 were severed, a separate trial would have to be conducted which would involve more than one witness having to give evidence a second time. A separate trial would involve further cost and inconvenience to witnesses. These are important considerations that must be balanced against the interests of the accused.
117. Ultimately, I am comfortably of the view that count 4 should be heard and determined separately in the interests of justice. Each accused has established the joinder of count 4 would result in a “positive injustice”. It follows that I have concluded that the prejudice that would flow to the accused if count 4 were joined cannot be cured by judicial directions.
118. Accordingly, I grant the application. The formal orders are as follows:

(1) Count 4 is severed from the indictment.

(2) I order a separate trial in relation to count 4 to be conducted at Newcastle District Court on a date to be fixed.

(3) I adjourn count 4 for mention at Newcastle District Court on 14 March 2024 with the accused excused on that day if legally represented.

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