IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2020 0174
S ECR 2020 0176
S ECR 2020 0178

THE DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
JORDAN BOTTOM
RIKKI SMITH
ALBERT THORN		

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JUDGE:	Tinney J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	19 April 2023	
DATE OF RULING:	21 April 2023	
CASE MAY BE CITED AS:	DPP v Bottom & Ors (Ruling No 4)	
MEDIUM NEUTRAL CITATION:	[2023] VSC 207	
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CRIMINAL LAW – Trial – Murder and other alleged offences – Three accused – Application by one accused for separate trial from other accused – Previous application refused – New circumstances - Additional layer of complexity to required directions to jury – Directions still capable of being understood and complied with – Potential prejudice to accused capable of being ameliorated by judicial directions – Powerful reasons for all three accused to be tried together – Application refused.
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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr R Gibson KC with
Ms B Goding and
Mr T Bourbon	Abbey Hogan, Solicitor for Public Prosecutions 	
			
For the Accused Bottom	Mr D Cronin	Papa Hughes Lawyers 	
			
For the Accused Smith	Mr J Lavery	Valos Black & Associates 	
			
For the Accused Thorn	Mr J Anderson with
Mr A Pyne 	Sullivan Braham Barristers & Solicitors 	

HIS HONOUR:
Introduction
1	Albert Thorn (‘Thorn’) is one of three men due to stand trial commencing next week on a number of charges including the murder of Bradley Lyons (‘Lyons’). The other accused are Jordan Bottom (‘Bottom’) and Rikki Smith (‘Smith’). Thorn applies for a separate trial from the trial of the other two accused. This is the second such application made on behalf of Thorn. The first application was made early last year, and refused by me on 14 July 2022. An interlocutory appeal (‘IA’) was foreshadowed by the defence, and on 22 July 2022, an application was made for me to certify pursuant to s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’.) I declined to do so. In the end, no IA was launched.
2	The facts of the case, the basis of the first application for a separate trial, the submissions on both sides in connection with the application, and the law applicable to such applications, are sufficiently set out in the first ruling, and in the Revised Amended Summary of Prosecution Opening for Trial (‘the Prosecution Summary’) filed and dated 14 April 2023.
Background
3	By way of brief background to this application, it is alleged that Lyons was assaulted and abducted in his own home in Lakes Entrance by a group of people including Smith and Thorn, driven in the boot of Thorn’s vehicle to Thorn’s property at Nyerimilang, falsely imprisoned and tortured, and then driven to a remote bush location in Double Bridge near Bruthen and shot dead before being buried in a shallow grave. It is alleged that Bottom, Smith and Thorn were present at the location at which Lyons was shot dead, and that they acted together in murdering him.
4	In due course, all three accused were interviewed by police, and gave varying accounts of their involvement in the events, as set out in the Prosecution Summary. In simple terms, Thorn denied presence at the scene of, or responsibility for the murder of Lyons. He claimed that he had asked the other two accused to remove Lyons from the Nyerimilang property in the boot of his, Thorn’s, motor vehicle, later finding out that Lyons had been shot, an act in which he was not involved. The other two accused admitted being present when Lyons was shot, but claimed that Thorn was the shooter. 
5	The case against Thorn is a multi-faceted one as the Prosecution Summary reveals. One aspect of the evidence against him is admissions he allegedly made to his daughter RT the day after the murder as to his involvement in the crime. Those admissions were described by RT in her second VARE on 21 August 2020, and are set out in the Prosecution Summary. 
6	A trial of this matter proceeded in this Court in August and September last year. When arraigned before the jury panel, Thorn pleaded guilty to intentionally causing injury, kidnapping and false imprisonment, but not guilty to the assault upon Lyons at Nyerimilang and his subsequent murder. During the trial, RT was called to give evidence. Her VARES were played and she was examined and cross-examined to a point, before being unable to continue her evidence due to her obviously distressed state. In the end, Mr Anderson, senior counsel for Thorn, conceded that RT was unavailable as defined in the Evidence Act 2008 (‘the Evidence Act’), and no further effort was made to elicit evidence from her. She was excused. 
7	Following the coming to light of additional evidence in the case concerning the finding and later testing of a fired shotgun cartridge at Thorn’s premises, an application for discharge of the jury was made by Mr Anderson based on a number of matters, including the unavailability of RT. The application was supported by counsel for Bottom and Smith. I acceded to the application and discharged the jury on 12 September 2022. The accused were all remanded in custody for a re-trial to commence on 17 April 2023.
8	As it transpired, RT remained unavailable, as has been conceded by counsel for Thorn, and it is proposed that her evidence would be placed before the jury by the playing of her VARES, some of the evidence she gave in the first trial, and the evidence she gave at a hearing pursuant to s 198B of the CPA on 20 April 2021.
9	One other change which has occurred since the first application for a separate trial is that it has now emerged that counsel for Bottom and Smith will each seek to rely upon the statements made by Thorn to RT in their respective cases, pursuant to s 83(2) of the Evidence Act.
Defence submissions
10	Mr Pyne, for Thorn, relied upon the defence written and oral submissions preceding the first ruling, paragraphs [13] to [19] of the written outline in support of the discharge application dated 8 September 2022, as well as his oral submissions before me in support of the separate trial application.
11	He submitted that notwithstanding the conclusion I had reached in the first ruling that the fair trial of Thorn could be ensured by the giving of appropriate directions to the jury, two developments in the case, namely, the anticipated reliance on s 83 of the Evidence Act by each of the other accused, and the alternative way in which RT’s evidence would be placed before the jury due to her unavailability, would mean that the required directions would be ‘bordering on metaphysical’, and would be impossible for a jury to understand, much less apply. 
12	Mr Pyne submitted that the authorities to which I was referred in the earlier application, namely R v Demirok, R v Jones and Waghorn, and R v Gibb and McKenzie, illustrate the proposition that the prejudice to an accused in a joint trial increases greatly as the complexity of the requisite directions increases. Crucially, he submitted, in such cases complexity often arises from the different ways in which the evidence of a particular witness may be used in the cases against the individual accused. He submitted that that proposition is pertinent in this case. 
13	He submitted that the call for a separate trial here is very strong when regard is had to the matters relied on in the first application, supplemented by the convoluted and counterintuitive directions that would now be required.
14	Underpinning Mr Pyne’s submission was the contention that the significance of the evidence of RT is substantial, the admissions allegedly made by Thorn to his daughter being likely to be central to the prosecution closing address to the jury.
15	Mr Pyne submitted that in light of the use the co-accused would seek to make of the evidence of RT in their cases, different directions would be required to be given to the jury in relation to how the evidence may be used compared with the directions required to be given in respect of Thorn. A Burns v The Queen direction would be required in the latter case, but not in the former. In their cases, the admissions would be utilised to a different end in seeking to establish a reasonable doubt, whereas in the case against Thorn, the Crown would rely upon the evidence in seeking to prove its case beyond reasonable doubt. The jury would not need to be satisfied to the same level or degree when taking the admissions to RT into account in considering the cases against Bottom and Smith. In addition, the jury would not need to consider the forensic disadvantage to Thorn when determining whether to take the admissions made to RT into account in the trials of the co-accused.
16	It was submitted that the required directions would be contradictory and undermining of the critical direction that the jury would receive concerning the proposition that the statements of Bottom and Smith in their interviews, very damaging towards Thorn, cannot be used against him. 
17	The directions would further undermine the forensic disadvantage warning required to be given in Thorn’s case. Indeed, that warning, highlighting amongst other things the difference between cross-examination of a witness at a s 198B hearing and in a trial, would be difficult to convey meaningfully, it was submitted.
18	Furthermore, it was submitted that the forensic disadvantage warning would ‘be rendered completely inutile by the reality of the way the co-accused could permissibly close to the jury’. They would rely upon the admissions to RT in order to prove that Thorn shot Lyons, and in that respect, there would be the combined and forceful effect of three parties, namely Bottom, Smith and the prosecution, urging the jury to rely upon the evidence of RT. 
19	Having detailed the directions that would be required to be given, Mr Pyne submitted:
The submission that I would make about all of that is that that is an impossible task, and that it answers the descriptions in the authorities of a level of abstraction so unreal and contrived – not to say convoluted – that a judge might be excused from attempting to give such a direction, or a jury [for] failing to understand it, but still less for failing to act upon it. My submission is that it is difficult…for experienced lawyers…to try and understand and comprehend such a direction; and that it is a wholly unreasonable expectation to think that members of the community would be able to think in such a convoluted and abstract way. And that, in the circumstances, the risk of misusing the evidence is heightened, and, in turn, the risk of an unfair trial is so great that the remedy ought to be the granting of a separate trial. 
Prosecution submissions
20	Mr Bourbon, who made submissions on behalf of the prosecution, indicated that he relied on the prosecution’s written submissions filed in the lead-up to the first application, as well as the oral submissions made on 1 February 2022.
21	He began by contrasting this case with the position in Luna v The Queen, a case referred to by Mr Pyne in the course of his submissions in connection with the forensic disadvantage directions he said would be required. Mr Bourbon pointed out that in Luna, the trial judge decided to permit the prosecution to lead the evidence of the complainant, who was deceased, in front of the jury by the tendering of her statements and a transcript of her committal evidence. By contrast in this case there would be a recording of RT giving evidence in the s 198B hearing, so the jury would have the opportunity of viewing her actually giving evidence, which is a matter of great significance. Whilst the Crown accepted that some forensic disadvantage directions would be required, Mr Bourbon challenged the contention that such directions would be difficult for a jury to understand. 
22	Mr Bourbon indicated that the prosecution relied upon the factors set out by the Court of Criminal Appeal in Demirok in resisting the separate trial application, noting that the inconvenience to be caused to witnesses would still be a factor notwithstanding the prospect of some evidence from the first trial being replayed.
23	He submitted that it is not enough for an accused person who applies for a separate trial to establish that he would suffer prejudice as a result of a joint trial. He must establish that he would suffer substantial prejudice of a kind that is not amenable to nullification by judicial directions. 
24	He emphasised, in the case of multiple accused charged with offences arising from an incident in which it is alleged they jointly participated, the strong desirability of their being tried together, especially in circumstances such as the present case in which co-accused are effectively blaming each other for the offending.
25	Mr Bourbon noted that an important plank relied on by the defence in the first application, namely, the expectation or prospect that evidence of the bad character of Thorn would be introduced by the co-accused, is no longer available, because the concerns did not eventuate in the first trial. 
26	Mr Bourbon contrasted the evidence of bad character against Thorn contained in the co-accused’s interviews with the type of bad character evidence considered in the authorities, submitting that it does not come close to the extreme evidence of bad character pointed to in the cases. 
27	He emphasised what he submitted were two important findings I made in the first ruling. The first was that the case against Thorn could not be described as deficient or weak. He submitted that there is a strong circumstantial case against Thorn, so that this could not be viewed as a situation in which an otherwise weak case may be impermissibly bolstered by inadmissible material. 
28	The other important finding to which he referred was the proposition that there were very powerful reasons at the time of the first ruling why Thorn should be tried together with the co-accused. Those powerful reason remain, submitted Mr Bourbon.
29	In respect of the asserted complexity of the directions which would be required to be given to the jury, whilst acknowledging that the directions would be more complicated than previously envisaged, Mr Bourbon said that this would not rise to the level of complexity observed in some of the authorities. It would be apparent to the jury from an early stage in the trial that the statements made by each accused would generally only be admissible for or against that accused, but that in respect of a very confined piece of evidence, namely, what RT said about admissions allegedly made by her father, there would be an exception to the general rule. There is no reason why the jury would not be able to understand and apply the necessary directions. The level of complexity would be well below that which was found to exist in Jones and Waghorn and other cases. Furthermore, in Jones and Waghorn, it was a combination of three really strong factors which compelled the conclusion that a separate trial should have been granted. 
30	In conclusion, Mr Bourbon submitted that whilst the new matters which had arisen since the first ruling would add a level of complexity to the necessary jury directions, this would not reach a level which would justify or necessitate the ordering of a separate trial, having regard to all of the relevant factors in this case. 
Analysis
31	I have carefully considered the matters relied upon in support of this application by Thorn for a separate trial. That process has involved a consideration of all of the matters relied upon in the first application, as well as the additional matters which have arisen since that time. I have of course considered the combined effect of all of these matters in determining the application. 
32	I accept, as conceded by the Crown, that a level of complexity would be added to the directions required to be given to the jury due to changes to the overall circumstances. That may increase the risk of prejudice to the accused. The question, however, is whether the potential prejudice flowing to Thorn from the combination of matters relied upon would be incapable of effective nullification by judicial directions. 
33	Having considered the type of directions that would be necessary in this case as a result of recent developments, in the context of the directions which previously would have been required, I am not sure that much is added to the mix. Fundamentally, it will be critical for the jury to understand that the case against each accused is to be decided solely upon the evidence admissible against that accused, that generally the rule is that out-of-court statements by one accused may only be used for or against that accused, that there will be an exception to that general rule in the case of the admissions allegedly made by Thorn to RT, that it will be spelt out to them what evidence is admissible against the respective accused, and that it will be required of them as a matter of law to carefully abide by all directions of law I give them. 
34	I reached a conclusion in the previous ruling that as things then stood, this would not be a case in which the evidence admissible against Thorn would be impossible or difficult to disentangle from the overall evidence. Nothing has occurred which would change that conclusion. As for the directions of law required to be given to the jury in light of the circumstances of this case, I do not accept they would be so counterintuitive and abstract as to be impossible to understand or apply. 
35	I am no less confident now than I was previously of the prospect of the jury conscientiously and carefully adhering to the directions I would give them in carrying out their sworn or affirmed duty of giving a true verdict according to the evidence. As I said in the first ruling, a preparedness to trust jurors to be true to their oath or affirmation is at the very heart of our system of justice and has been shown to be well warranted, as the authorities clearly reflect. 
36	The powerful reasons why Thorn should be tried with Bottom and Smith, to which I referred in the first ruling, remain the same. 
37	In my view, it would not be appropriate to order that Thorn be tried separately from the other two accused. 
Conclusion
38	The application by Thorn for a separate trial is refused.