IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2023 0154
S ECR 2023 0155
S ECR 2023 0156
S ECR 2023 0157

DIRECTOR OF PUBLIC PROSECUTIONS 	Crown	
		
v  		
		
ZEESHAN MEHDI, MOWEIT QIAN, DARA CHAU and TRUNG NGUYEN 	Accused	

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JUDGE:	Fox J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	16 and 17 October 2024	
DATE OF RULING:	21 October 2024	
CASE MAY BE CITED AS:	DPP v Mehdi & Ors (Ruling 5)	
MEDIUM NEUTRAL CITATION:	[2024] VSC 831	

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CRIMINAL LAW — Evidence — Murder — Joint trial — Prosecution intend to lead evidence admissible in the trial of the accused Mehdi only — Counsel for the accused Qian objects to the evidence pursuant to s 135(a) of the Evidence Act 2008 (Vic) — If evidence admitted, the accused Qian seeks a separate trial — Evidence admissible — Separate trial application refused — Evidence Act 2008 (Vic) s 135; Criminal Procedure Act 2009 (Vic) ss 170 & 193; McNamara v The King (2023) 98 ALJR 1; Jones and Waghorn v R (1991) 55 A Crim R 159; R v Iaria and Panozzo [2004] VSC 110.

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr N Hutton SC, with 
Ms J Ball 	Office of Public Prosecutions	
			
For Zeeshan Mehdi	Mr M McGrath with 
Mr W Blake	Slades & Parsons Criminal Lawyers	
			
For Moweit Qian	Mr G Casement with 
Ms L Andrews	Chester Metcalfe & Co	
			
For Dara Chau	Mr J Desmond	Giorgianni & Liang Lawyers	
			
For Trung Nguyen	Mr P Smallwood with 
Mr J Cleveland	Hofman Carroll Criminal Law	

HER HONOUR:
Introduction
1	The four accused, Zeeshan Mehdi (‘Mehdi’), Moweit Qian (‘Qian’), Dara Chau (‘Chau’) and Truong Nguyen (‘Nguyen’) are jointly charged with murder and will be tried together.  Each accused is also charged with affray.  Mr Casement, on behalf of the accused Qian, has made two applications:
(a)	An application to exclude evidence of what Mehdi said to certain persons after the alleged murder.  The application is made pursuant to s 135(a) of the Evidence Act 2008 (Vic) (‘Act’).
(b)	If the evidence is not excluded, the accused Qian applies for a separate trial.
2	The two applications substantially overlap and will be dealt with in the one ruling.
Overview of prosecution and defence cases
3	An overview of both the prosecution and defence cases is set out in my first ruling.  This ruling should be read together with my first ruling, insofar as the necessary background matters are found in that ruling.  Very briefly, all four accused are charged with the murder of Tommy Loulanting.  It is alleged that on 8 July 2022, the deceased violently assaulted Mehdi over an unpaid debt.  Mehdi then decided to take revenge on the deceased by either killing him or causing him really serious injury.  Mehdi arranged for the three co-accused to assist him in this venture.  During the early hours of the morning of 11 July 2022,  Mehdi lured the deceased to Unit 2/88 Corrigan Road, Noble Park (‘Unit 2’) under the guise of wanting to pay the debt.  The deceased attended, together with Christina Subu (‘Subu’) and Reza Misawi.  Mehdi opened the front door and the deceased was immediately ambushed by the four accused.  He was shot twice, once to the left knee and once to the face.  He was also slashed three times.  He died almost immediately.  The cause of death was a gunshot wound to the face.  On the prosecution case, it is unknown which of the four accused fired the gun or inflicted the incised wounds.  The prosecution case relies on complicity: the four accused agreed upon a plan to kill or really seriously injure the deceased.  Alternatively, they each assisted, encouraged or directed the principal offender to kill or cause really serious injury to the deceased.
4	All four accused admit presence at the scene.  All deny shooting or slashing the deceased.  All deny being party to an agreement to murder the deceased, and all deny they assisted, encouraged or directed the shooter to kill the deceased.
Summary of ruling
5	The evidence objected to pursuant to s 135 concerns what the accused Mehdi said to the witnesses Matilda McLaren (‘McLaren’) and Gabbi Jabbour (‘Jabbour’) in the hours after the shooting.  The same evidence, assuming it is not excluded, underpins the separate trial application.
6	It is common ground that the material is not evidence in the trial of Qian, and a jury would need to be so directed.  Mr Casement argues the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to ‘a party’, being Qian.  If not excluded, Qian should be tried separately from Mehdi.
7	Mr McGrath, on behalf of the accused Mehdi, would have no objection if the evidence was excluded in its entirety.  However, if only the parts that concern Qian are excluded, the remaining evidence will result in unfairness to Mehdi.  This may result in further applications, including a separate trial application, being made on behalf of Mehdi.
8	The prosecution intend to lead the whole of the conversations.  The parts objected to by Qian provide necessary context, and as a matter of fairness to Mehdi, both the inculpatory and exculpatory parts of the conversations should be placed before the jury.
9	The prosecution submit the evidence has substantial probative value.  Mehdi admits he is the shooter.  While he goes on to contradict himself, he still admits knowledge of the firearm and that he physically held the firearm, at least at one stage.  There is no relevant danger of unfair prejudice.
10	On 21 October 2024, I ruled that:
(a)	the evidence is not excluded pursuant to s 135 of the Act; and
(b)	the separate trial application of Qian is refused.
11	I delivered oral reasons and indicated I may publish written reasons at a later date.  These are those reasons.
The evidence
12	A short time after the shooting, Mehdi, who is also known as ‘Zac’, told McLaren several things, including:
(a)	‘I shot him’;
(b)	A dude he did not even know, but who was good friends with ‘Dee’, came to the house when everything happened;
(c)	That man took the gun off Zac and shot the guy;
(d)	The guy who shot the Islander guy (the deceased) was wearing kind of similar clothes;
(e)	Zac was wearing all black;
(f)	He felt like it was a set up;
(g)	The guy who shot him was mates with Dee; and
(h)	An Asian looking person shot this guy and he did not know him.
13	This evidence will be led through the witness McLaren (‘the McLaren conversation’).  ‘Dee’ is the nickname of Dara Chau.  A reasonable inference is that the ‘Asian looking person’ who shot the deceased was Qian.
14	Following this, Mehdi, McLaren and Michael Kolio (‘Kolio’) attended at the home of Jabbour.  While they were there, the topic of the shooting was raised, and Jabbour asked them to leave his house.  Mehdi told Jabbour that ‘the Islander guy’ (the deceased) was standing at the front door of the Corrigan Street house and that he got killed.  Mehdi said he was standing there, and he had the gun in his hand, and he was shaking.  Mehdi said Qian came from behind him and took the gun and straight away, without asking questions, shot the guy in the neck.
15	This evidence will be led through the witness Jabbour (‘the Jabbour conversation’).
Submissions on behalf of Qian
16	Mr Casement argued the whole of both the McLaren conversation and the Jabbour conversation should be excluded, or at least the parts that concern his client.  Mr Casement conceded the evidence had ‘some value’ in the trial against Mehdi.  Mr Casement’s real focus was the prejudice such evidence would cause in the trial of Qian.
17	For the purposes of s 135(a), the alleged unfair prejudice is:
(a)	The jury will misuse the evidence against Qian despite directions to the contrary.  Mehdi says, once by inference and once directly, that Qian is the shooter of the deceased;
(b)	Qian cannot effectively challenge the evidence as he was not a party to the conversations; and
(c)	The evidence will unfairly bolster the credit of the witness Subu, who is the most critical prosecution witness.  This cannot be cured by judicial direction, because any direction would be incomprehensible and impossible for any jury to follow or apply.
18	Mr Casement stressed that his argument does not rest only on the problem created by Mehdi blaming Qian and saying Qian was the shooter.  That contributes to the overall danger of unfair prejudice, but there are other significant problems which arise from the evidence.  He argued that the evidence of the witness Subu will be impermissibly bolstered if the jury hear the disputed evidence.  She is a critical witness in the trial.  She was at the front door of Unit 2 and witnessed the shooting.  It will be impossible for a jury to consider her credibility in the trial of Mehdi, and then consider it on a different basis in the trial of Qian.  In particular, the evidence will bolster Subu’s evidence that this was a summary shooting that happened very quickly and shortly after the door was opened.
19	Mr Casement drew attention to the statement by Mehdi that, ‘he felt like it was a set up’.  Mr Casement argued that one interpretation of this comment is that Mehdi believed this was a set up by Qian, so Qian could shoot the deceased, with whom Qian had a grudge or dispute.  This would be unfair to Qian and invite impermissible and prejudicial speculation on the part of the jury.
20	In written submissions concerning the separate trial application, Mr Casement also submitted that the credibility of the witness Jabbour will be bolstered by the evidence.  I will address that when dealing with the separate trial application, but I have also considered the argument for the purposes of the s 135 ruling.
Submissions on behalf of Mehdi
21	Mr McGrath argued that the evidence should be excluded in the trial of Mehdi, but conceded there was little he could really submit at this stage of the argument.  He submitted the evidence is unclear, but did not suggest it had no relevance or probative value in the trial of Mehdi.  If the statements relied on as admissions are admitted, then the whole of the conversation should be led, otherwise the lack of context would result in real unfairness to Mehdi.
Submissions on behalf of the prosecution
22	Mr Hutton SC submitted the prosecution are willing not to lead the statement about Mehdi feeling like it was a ‘set up’.  This omission would not create any unfairness in the trial of Mehdi, as the jury would still have enough context to fairly assess the statement, ‘I shot him’.
23	Dealing with s 135(a), Mr Hutton argued that any alleged unfair prejudice falls to be assessed in the context of all the evidence to be led in Qian’s trial.  There is substantial evidence to be led against Qian, including his alleged admission and the fact he was found with a single barrel sawn‑off shotgun in a red bag three months after the shooting.  This evidence, which is not admissible against Qian, is not highly prejudicial when the evidence is considered as a whole.  To the extent there is any risk of unfair prejudice, it can be addressed by an appropriate judicial direction.
24	Dealing with the separate trial application, Mr Hutton submitted that the issues in this trial are not uncommon in a joint trial and, again, are able to be dealt with by appropriately crafted judicial direction.  The evidence of Subu is not critical to the prosecution case and, arguably, what Mehdi says in the McLaren and Jabbour conversations does not bolster her credit in any event.
25	In written submissions, Mr Hutton relied on the public policy reasons that favoured a joint trial.  In particular, this is a case where the interests of justice favour one jury hearing the case against all four accused, to avoid the risk of inconsistent verdicts.
Section 135 and legal principles
26	Section 135(a) of the Act states:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a) 	be unfairly prejudicial to a party …
27	The Act applies to all proceedings in a Victorian court.  For some purposes, the Act draws a distinction between a ‘civil proceeding’ and a ‘criminal proceeding’; however, s 135 draws no such distinction.  Relevantly here, the ‘proceeding’ for the purpose of s 135 is the joint trial.  Further, the expression ‘a party’ used in s 135(a) includes the prosecution and each co-accused or defendant in the joint criminal trial.
28	The principles to be applied when considering an application pursuant to s 135(a) may be stated as follows:
(a)	The burden is on the party opposing the admission of the evidence.
(b)	The court must first assess the probative value of the evidence sought to be admitted.
(c)	The court must then determine whether, on balance, there is a danger that the evidence might be unfairly prejudicial to a party.  It is not necessary to find that the evidence would be unfairly prejudicial.
(d)	If the court concludes there is such a danger, it must weigh that danger against the probative value of the evidence.  In balancing the factors, the court must have regard to the extent that problems could be lessened by actions other than exclusion, such as limiting the use of the evidence or, in a jury trial, by directions.  The imbalance must result in a danger that the unfair prejudice will substantially outweigh the probative of the evidence.  This may be contrasted with s 137, where the probative value must only be ‘outweighed’ by the danger of unfair prejudice.  For this reason, where the evidence is adduced by the prosecution against an accused, defence applications usually rely on s 137 not s 135.
(e)	Unfair prejudice has been held to have the same meaning in each of the sections in pt 3.11 of the Act and in s 101.  It may encompass procedural disadvantage, although this is less clear in the case of s 135 than s 137.  Section 135 talks of ‘the evidence’ being unfairly prejudicial, whereas s 137 talks more generally of ‘the danger of unfair prejudice’.
29	Here, in determining the s 135(a) question, it is necessary to weigh the probative value of the evidence to the prosecution in the trial of Mehdi, against the prejudicial effect it will have on the accused Qian.
Analysis and conclusion
30	In my view, it is not appropriate to exclude the parts of the conversations that concern Qian; this would distort the evidence and cause unfairness to the accused Mehdi.  Therefore the question is whether, if the matter continues as a joint trial, the entirety of the conversations should be excluded.
31	The probative value of the evidence to the prosecution in the case against Mehdi is high.  The prosecution case is that after the shooting, Mehdi calls Subu and tells her, ‘I just shot your boy’.  In the conversation with McLaren, Mehdi admits to shooting the deceased, although he then goes on to say an ‘Asian looking person’ took the gun off him and shot the deceased.  The three accused, Nguyen, Chau and Qian, are all capable of fitting the description ‘Asian looking person’.  However, the person is also said to be mates with ‘Dee’, which would exclude Chau.  On the evidence, Qian is a friend of Chau’s.  It is less clear who is friends with Nguyen and how he came to be involved.
32	The probative value of the conversation between Jabbour and Mehdi is not as high, but it is still significant.  Mehdi does not admit to shooting the deceased, but he admits having and holding the gun at the time the deceased was standing at the front door of Unit 2.  In this conversation, Mehdi is clear that Qian was the shooter, albeit he says Qian shot the guy in the back, which is contradicted by the evidence of the forensic pathologist.
33	The evidence incriminates Qian.  It is inadmissible in his trial, and creates some risk that it might be unfairly misused by a jury to find that Qian shot the deceased.  However, the evidence does not introduce general bad character evidence, or prior convictions.  It is limited to the events in question.  It is meaningfully different to the evidence admitted in Jones and Waghorn v R (‘Waghorn’) where there was evidence in the trial — inadmissible against Waghorn —that Jones told police he was terrified of Waghorn’s disposition to violence and murder, and that Waghorn was a professional criminal.  Jones also accused Waghorn of instigating the killing, encouraging Jones to help him in the stabbing, and burying the body in lime in the backyard.
34	There is some procedural disadvantage caused to Qian if this evidence is admitted in the joint trial.  He is not able to challenge the evidence in cross-examination, in the sense that he cannot ‘put’ to either witness what was, or was not, said during the conversation.  Mehdi has indicated, through his defence response, that he will challenge the evidence.  That challenge may only concern the parts of the conversations that incriminate Mehdi, although it is difficult to see how such a challenge could be effectively mounted.  Unchallenged, the evidence in some ways assists Qian, given Mehdi says to McLaren that he, Mehdi, shot the deceased.  As the witness McLaren noted, Mehdi was saying two different things.  This point can be made by Mr Casement on behalf of Qian.  There is some procedural disadvantage to Qian, but I do not regard it as significant.
35	In my view, the evidence does not support the evidence of Subu.  Subu says when the door was opened, Mehdi was standing there.  She does not say he was holding a firearm.  In stark contrast, Mehdi tells both McLaren and Jabbour that he was holding a gun.  I deal with this further when considering the separate trial application, but in my view, the challenged evidence does not unfairly bolster the credibility of Subu in the trial of Qian.  In some ways, it could be said to assist him, as Mehdi initially admits to being the shooter.  Mehdi tells Jabbour that Qian shot the deceased but says he shot him in the back, which is objectively contradicted by medical evidence.
36	The prejudice must be viewed as a whole.  It is not appropriate to weigh each alleged prejudice against the probative value of the evidence and reach a conclusion.  When, as here, a number of matters are relied upon, the overall prejudice must be determined and balanced against the probative value of the evidence.
37	In my view and taking all matters into account, any danger that the evidence might be unfairly prejudicial does not substantially outweigh the probative value of the evidence.  The jury will be given a strong direction that what Mehdi tells others after the shooting is not evidence in the trial of Qian and cannot be used against Qian.  Directions concerning the evidence of Subu and Jabbour can also be given, if required.
38	The evidence is not excluded pursuant to s 135.  Given this conclusion, it is necessary to address the separate trial application.
Separate trial application
Legislation and legal principles
39	The starting point is the Criminal Procedure Act 2009 (Vic) (‘CPA’).  Pursuant to s 170(2) of the CPA, if an indictment names more than one accused, the charge or charges against all accused must be tried together unless an order is made under s 193.
40	Section 193 relevantly states:
(1) 	If an indictment contains more than one charge, the court may order that any one or more of the charges be tried separately.
(2) 	If an indictment names more than one accused, the court may order that charges against a specified accused be tried separately.
(3) 	The court may make an order under subsection (1) or (2) if the court considers that—
(a) 	the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment; or
(b) 	a trial with the co-accused would prejudice the fair trial of the accused; or
(c) 	for any other reason it is appropriate to do so.
41	The principles to be applied have been discussed in a number of earlier authorities.  Where the trial judge is considering the application, the accused must show that there is a real risk of positive injustice to the accused were he or she to be tried jointly, and that the prejudice is of a kind not really amenable to nullification by judicial direction.
42	In R v Iaria and Panozzo, Nettle J listed as cumulative the following factors emerging from Waghorn that would likely mean an accused would not receive a fair trial:
(a)	There exists evidence that is admissible against one accused and inadmissible against another; 
(b)	The jury would find it difficult to exclude that evidence from consideration against the other accused; and
(c)	That evidence would be likely to strengthen the credibility of a critical witness against that other accused, and thereby turn what is a weak case against him into a strong one.
43	The following principles are relevant when considering whether a separate trial should be ordered:
(a)	The prima facie rule is that where more than one accused are charged jointly, the trials should be heard together, particularly where the accused are charged with identical offending and on a complicity basis.
(b)	Matters of public interest as articulated in R v Demirok must be considered.  Those matters include the efficient use of resources and court time; the policy of the law to reach finality as expeditiously as possible; and the convenience of witnesses.
(c)	If one accused seeks to blame another, separate trials should ordinarily not be granted.  It is against the interests of justice that there should be inconsistent verdicts, and where accounts of accused differ or conflict, the differences should be resolved by the same jury at the same trial.
(d)	Every accused who is tried jointly is entitled to have his or her guilt determined solely on the basis of evidence admissible in his or her trial.
(e)	If the inadmissible evidence impacts the credibility of a key witness in the trial of the particular accused, the jury may have to be told that some matters that bear positively on the credit of the witness can only be taken into account in the trial of one accused and not the other.  Inadmissible evidence that impacts negatively on the credit of a key witness is unlikely to result in an unfair trial of the particular accused.
(f)	If the inadmissible evidence would turn a weak case into a strong case against that particular accused, this would weigh in favour of separate trials.
Analysis and conclusion 
44	A review of the authorities reveals that particular concerns arise when the inadmissible evidence raises bad character or introduces the prior convictions of the accused who seek a separate trial.  Such evidence can be more difficult for a jury to disregard.  The evidence here is not of that type.
45	I repeat what I have said about any alleged procedural disadvantage.  In my view, any procedural disadvantage is not a matter of great significance.  The evidence is only part of the overall prosecution case against Medhi.  The witness Jabbour will be otherwise cross-examined by counsel for Qian, and I am told his credit will be challenged by all counsel.
46	I turn to the argument that the evidence of what Mehdi tells Jabbour will unfairly bolster the credibility of Jabbour.  At around 2:54am, Mehdi, Chau and Jabbour drive in Chau’s car to the home address of Qian.  It is during this drive that Jabbour allegedly observes the red/maroon sports bag containing the shotgun and cartridges.  Qian is not present.  Jabbour did not approach or enter Unit 2, and cannot say who shot the deceased.  I would not describe Jabbour as a key or essential prosecution witness in the proceeding, given all the accused admit presence.
47	The evidence of Jabbour is that after the shooting, there were people running everywhere and, as the car he was in drove off, Qian tried to break a window using the back of a ‘rifle’.  According to Mr Casement, it is the credibility of this evidence which will be bolstered if the jury learn of what Mehdi said to McLaren and Jabbour after the shooting.  It is necessary to consider all the evidence in the trial.  There is CCTV footage which shows Qian with the shotgun on Corringan Road, and arguably he is pointing it at Subu.  There is the implied admission of Qian himself, made on 15 September 2022, which is set out below.  In my view, the credibility of Jabbour’s evidence that Qian had possession of the shotgun immediately after the shooting will not be meaningfully bolstered, if it is bolstered at all, by what Mehdi tells McLaren and Jabbour.
48	The Crown case against Qian is not weak.  The following should be noted:
(a)	Arguably, the most compelling evidence that Qian was the shooter comes from Qian himself by way of an implied admission.  In a Signal message chat on 15 September 2022, he writes: ‘I knew i shouldve dropped her too lol’, ‘I reloaded for her.  But didnt pull. 6am traffic in corrigan’ and ‘Fkn mo lol’.  There is a very strong available inference that Qian is referring to how he should have shot Subu as well as the deceased.
(b)	Qian admits presence at the scene.
(c)	Qian is arrested with a single barrel sawn-off shotgun in a red or maroon bag.  The prosecution cannot prove it was the murder weapon, but it is consistent with being the murder weapon.  The bag is consistent with the bag Mehdi is holding at the Highways Hotel, which can be seen on CCTV footage.  It is also, arguably, consistent with the bag described by the witness Jabbour.
(d)	Qian is seen on CCTV footage in possession of a shotgun in the course of the affray, which occurs immediately after the shooting.
(e)	Qian tells a number of significant lies in his record of interview.  Whether these lies can be used as evidence of incriminating conduct or as going only to credit remains to be argued, but it is likely that at least some of the material lies may be used as an implied admission to murder.
49	This is not a situation where evidence, which is inadmissible in the trial of Qian, will turn a weak case into a strong case.  The prosecution case against Qian may fairly be described as strong.
50	The witness Subu is an important prosecution witness, but the case does not ‘stand or fall’ on her testimony alone.  Subu does not positively identify the shooter.  As to the argument that the evidence of what Mehdi said to McLaren and Jabbour after the shooting will impermissibly bolster the credibility of Subu in the trial of Qian, there are a number of problems with that argument. They are:
(a)	First, as I have already said when dealing with s 135, what Mehdi allegedly says in the McLaren and Jabbour conversations contradicts the evidence of Subu.  In particular, Mehdi says he was holding the firearm when the door to Unit 2 was opened.  Subu was there when the door was opened.  According to Subu, Mehdi was not holding anything.
(b)	Mehdi was not describing all of what occurred, or providing a narrative.  These were short conversations, and may be contrasted with a situation where an accused gives a detailed account to police in a record of interview.  Mehdi does not describe the speed of the incident, other than to say that Qian shot the deceased ‘straight away’ after taking the gun from Mehdi.
(c)	There is other evidence, including objective evidence, which supports Subu on the question of how quickly the incident unfolded.  This includes the timing of the gunshots which can be heard on CCTV footage and the timing of the 000 call.  There is also the CCTV footage of the affray, which occurs immediately after the shooting, showing Qian with the shotgun.
51	As observed by Weinberg and Beach JJA in Destanovic v The Queen, in the vast majority of joint trials, the task of assessing a witness’ credibility will be undertaken by having regard to the entirety of the witness’ evidence.  A direction to a jury that they must disregard what Mehdi tells others after the shooting when assessing the credibility of Subu in the trial of Qian may or may not prove necessary.  Commonly, the direction is given when some matters that bear positively on the credibility of the witness can only be taken into account in the case of one accused, and not another.  Currently, that does not appear to be this case, as the matters do not bear positively on Subu’s credibility.  What Mehdi says about the shooting, if accepted, undermines rather than bolsters Subu’s credibility.  However, in my view, any such direction, if required in this trial, is capable of being understood and applied by a jury.
52	The matters that favour of a joint trial are considerable.  In particular, the accused are all charged with the same offence, they were all present at the scene, and the case against all accused rests on complicity.  It is against the interests of justice that there should be inconsistent verdicts, and those interests require that the matter proceed as a joint trial.  There are a number of lay witnesses in this trial, including the two children of the deceased, and it is undesirable that the witnesses should be required to give evidence in more than one trial.  While considerations of convenience and court administration cannot override justice, they are nonetheless matters which weigh in favour of a single joint trial.
53	Finally, there is some risk that one or more of the accused in this trial may seek to blame another accused.  In the four defence responses, no one admits shooting the deceased, but all accused do admit presence.  Thus it may be inferred that all accused know who shot the deceased.  Based on the prosecution evidence, Mehdi admits he was the shooter, and Qian impliedly admits he was the shooter.  Whether a ‘cut throat’ defence arises remains to be seen, but the possibility cannot be eliminated.  I have not placed any weight on this consideration in reaching my decision; I merely note that where one accused seeks to blame another, it provides a further reason for the trial to remain a joint trial.
54	I accept that there is a possibility of prejudice flowing to Qian from what Mehdi says after the shooting.  Mehdi tells McLaren (by inference) and Jabbour (directly) that Qian shot the deceased.  That evidence is inadmissible in the trial of Qian, and creates some risk of unfair prejudice.  However, in my view, any prejudice can be adequately mitigated by judicial direction.  The jury will be told that what one accused says about another accused or about any matter, after the alleged offence, is not evidence in the trial of anyone but the accused who said it.  The jury can be directed that what Mehdi said to McLaren and Jabbour is only evidence in the trial of Mehdi, and cannot be used by the jury in the trial of Qian.  If necessary, directions can be given shortly after the evidence is given, and repeated in my charge.
55	The application is refused.