R v Michael Phillip Martin; R v Candace Martin

1. [1]

   Michael Phillip Martin and Candace Martin stand jointly charged on an indictment containing five counts as follows:

   1. (1)

      Attempted murder of Michael Anthony Martin on 7 April 2014 (accused charged jointly).

   2. (2)

      In the alternative to (1) and against Candace Martin only, accessory after the fact to count (1).

   3. (3)

      Causing grievous bodily harm to Edmund Manning with intent to cause grievous bodily harm on 7 April 2014 (accused charged jointly).

   4. (4)

      Murder of Michael Anthony Martin on 13 June 2014 (accused charged jointly).

   5. (5)

      In the alternative to (4) and against Candace Martin only, accessory after the fact to count (4).

2. [2]

   In view of the similarity in the name of the male accused and the alleged victim of counts (1) and (4), who are father and son, I will refer to them as “Mr Martin” and “the deceased”.

3. [3]

   Previously, there was a third accused on the indictment, a young woman called Jessica Honey Fallon. She was charged with the attempted murder of the deceased on 7 April 2014 and the infliction of grievous bodily harm on Mr Manning on the same date. Both Ms Fallon and Ms Martin made applications for orders separating their trials from the trial of Mr Martin. Those applications came before Latham J on 15 and 23 June 2017. Ultimately, the Crown consented to the separation of Ms Fallon’s trial and her Honour made orders accordingly.

4. [4]

   On 23 June 2017, her Honour was told that Candace Martin’s separate trial application turned on a ruling as to the admissibility of certain evidence which the Crown seeks to lead as an admission on the part of Candace Martin. The admission is said to arise by virtue of Candace Martin’s failure to refute an admission by Mr Martin made in a letter he wrote to her in late February or early March of 2015. There seems to be no dispute that the letter is admissible in Mr Martin’s case. The parties and her Honour agreed that it was a matter that should be dealt with by the trial Judge. The trial is due to commence in Lismore on 28 August 2017 and I am to preside over the trial.

5. [5]

   The matter came before me on 3 August 2017. Candace Martin asked to be arraigned and entered pleas of not guilty to the three substantive charges (counts 1, 3 and 4) but entered pleas of guilty to the two accessory charges (counts 2 and 5). Evidence was tendered on the evidentiary issue and the separate trial application. The parties provided written submissions and oral arguments were heard on that day. The matter was adjourned until 22 August 2017 for decision on the separate trial application and the admissibility issue. Further submissions were made on 22 August 2017 concerning the impact of Candace Martin’s pleas of guilty to the accessory after the fact charges.

6. [6]

   On the hearing of the separate trial application on 3 August 2017, counsel for Mr Martin indicated that he did not seek to be heard on the application, stating that he had no “dog in the flight”, and asked to be excused because he was appearing in another trial. He was not present when Candace Martin entered the pleas of guilty to the accessory charges, although I proceeded on the basis that both Mr Martin and his lawyers were aware that she would do so. In this context, his neutrality on the issue of separate trials was surprising.

7. [7]

   On the day the matter was listed for judgment (that is, today, 22 August 2017), I called for further submissions on the question of the impact of Candace Martin’s pleas of guilty on the trial of Mr Martin. Counsel for Mr Martin submitted that the counts of accessory after the fact to murder should be severed from the indictment. He submitted that it would be confusing to the jury, and unfair on Mr Martin, to have the jury hear Candace Martin enter those pleas of guilty because the pleas contained an admission that Mr Martin was guilty of the substantive charges. The Crown opposed any order for severance. Candace Martin also opposed an order for severance. Both the Crown and Candace Martin took the view that severance might operate unfairly to Candace Martin. She wishes to have the jury hear her pleas of guilty so that it is clear, in her case and from the outset, that she acknowledges her guilt on those charges but denies being part of any joint criminal enterprise to murder the decease. Mr Martin accepted that if the trials were separated, the application for severance would fall away.

The case of each of the parties

1. [8]

   The prosecution case is that the two accused entered into a joint criminal enterprise to murder the deceased, who was Mr Martin’s father. Mr Martin took out insurance policies on his father’s life. By 24 February 2014 there were two life insurance policies in the amounts of $1.5 million (payable to the deceased’s estate, of which Mr Martin was one of three beneficiaries) and $1 million (payable to Mr Martin). Candace Martin is (or was) Mr Martin’s wife and the Crown case is that she also stood to gain financially from the murder.

2. [9]

   On or about 7 April 2014, [1] there was an attempt on the deceased’s life. The Crown case is that the accused procured Ms Fallon to carry out the murder and that Ms Fallon and Mr Martin were present. [2] The deceased was stabbed several times when he opened the door of his home. In the course of the attempt to kill the deceased, Mr Manning was seriously injured.

3. [10]

   The prosecution case is that Mr Martin killed the deceased on 13 June 2014 by stabbing him on a number of occasions.

4. [11]

   It is the prosecution case that the two accused acted in concert. Accordingly, each is responsible for the acts of the other and (generally speaking) evidence of acts carried out in furtherance of the common purpose is admissible against each of them. It is axiomatic that co-accused charged in such circumstances are ordinarily to be tried together.

5. [12]

   Candace Martin’s case, reflected in the pleas that she entered on 3 August 2017, is that she became aware of her husband’s actions after the murder and that she is not criminally liable for the substantive offences but is guilty of being an accessory after the fact of each of the substantive charges in which the deceased was the victim.

6. [13]

   The precise content of Mr Martin’s defence is not known. However, it appears that his defence involves a denial of involvement in the events of 7 April and that he was a victim, along with the deceased, of the violence on 13 June 2014. The Crown Case Statement provides details of things he said to police after his father was killed. This included version of events to the effect that he and his father were victims of a home invasion in which his father was killed and he assaulted, bound with tape and hit to the head. A witness came upon Mr Martin who had “gaffer” tape over his eyes and binding his wrists and legs. He was making a muffled cry for help. Once the tape was removed, Mr Martin said “Oh my dad is up there, they got my dad.” The Crown case is that this was staged.

The evidence on the application

1. [14]

   The prosecution tendered four documents on the separate trial application:

2. [15]

   The three documents comprising Ex VD A were originally attached to the written submissions of the learned Crown Prosecutor (MFI 1).

3. [16]

   Candace Martin read an affidavit of the instructing solicitor, Mr Bell, and this included the following annexures:

4. [17]

   The written submissions of counsel for Candace Martin became MFI 2.

5. [18]

   While all of the detail of the evidence that the Crown intends to adduce is not known, it seems to be clear from a perusal of the material tendered on the pre-trial issue that there will be a substantial amount of evidence which is common to both trials. Equally, it is apparent that there will be substantial bodies of evidence adduced by the prosecution, which is admissible against one accused only and not against the other. On 22 August 2017 counsel for Mr Martin indicated that he would apply for a view of the scene of both crimes and the Crown said that this course was not opposed. Given her admissions as to Mr Martin’s involvement, it seems unlikely that a view would be necessary or desirable in a trial of Candace Martin alone.

6. [19]

   I am unable to accept a submission by her barrister that the case against Candace Martin is purely based on admissions she allegedly made to various people. It is certainly true that the Crown will place particular reliance on such evidence in the case against her. However, as I perceive it, the Crown will also rely on a body of circumstantial evidence including evidence of the actions of Mr Martin. The full extent of the common evidence is not known because the parties did not tender all of the material upon which the Crown will rely and neither counsel identified all of the common evidence or the evidence admissible only against one of the accused. However, the parties seems to agree that the Crown Case Statement and the material attached to the affidavit in support of the notice of motion is sufficient to understand the nature of the case against each accused for the purpose of the present application.

7. [20]

   The parties were jointly of the view that the merit of the separate trial application hinged to a greater or lesser degree on the admissibility against Candace Martin of an admission contained in a letter sent to her by Mr Martin.

8. [21]

   However, the Crown submitted that, even if that evidence is not admissible against Candace Martin as an admission, it may nevertheless be tendered at her trial and be subject to directions as to its use. If the letter was said to be inadmissible against her altogether, the jury could receive (and would obey) a direction that this particular part of the evidence can only be used against Mr Martin and must not be used in considering the case against Candace Martin. Alternatively, if the evidence was held to be admissible on some basis other than as an admission (a matter to which I will return), the jury would receive (and obey) directions as to the limitations on its use, including a direction that it could not be used as an admission by Candace Martin. In either event, the Crown submits that the case should proceed as a joint trial.

9. [22]

   Counsel for Candace Martin submitted that his client could not receive a fair trial if the evidence was not admissible against her (or admissible on some basis other than as an admission) and that it would be impossible for a jury to disregard the letter if it was called upon to consider the letter as an admission in the case of Mr Martin. Whilst this was an important aspect of the separate trial application, counsel also relied on an assertion that the case against his client was substantially different (and weaker) than the case against Mr Martin. Nevertheless, he seemed to accept that if the letter was admissible as an admission by Candace Martin, the separate trial would probably fail.

The admission to which objection is taken

1. [23]

   To appreciate the arguments put on both sides as to whether the letter from Mr Martin to Candace Martin is admissible as an admission by or against Candace Martin, it will be necessary to set out that letter in full. It is a nine page closely typed document which chronicles the lengthy history of the relationship between husband and wife including its many ups and downs. It culminates with a plea for reconciliation. On page 7 of the letter, Mr Martin wrote:

2. [24]

   Based on the surrounding circumstances, the timing of events and the content of the letter, this part of the letter is capable of being relied on by the Crown as an admission by Mr Martin of his involvement in his father’s death. However, it is the prosecution case that the first paragraph quoted above involves an assertion by Mr Martin that Candace Martin was a party to the plan to kill the deceased. The prosecution relies on words such as “we concocted a bright idea” and “our guilt has stuck” to advance the argument that the reference to the fact that “plans were set” is a reference to the joint plans of both accused.

3. [25]

   As I understand it, the evidence is silent as to when the letter was written and sent. However, on 3 March 2015 Candace Martin sent a text message to Mr Martin in the following terms: –

4. [26]

   The prosecution case is that this text message refers to the letter sent by Mr Martin. Candace Martin submits that there is an element of speculation in that proposition. I accept that submission but, for present purposes, I will act on an assumption that the text message refers back to the letter. If admitted, that would be a question for the jury to resolve.

Is the evidence admissible to prove an admission?

1. [27]

   The prosecution submits that the failure of Candace Martin to deny the suggestion or implication on page 7 of the letter that the plan to kill the deceased was a joint one, is evidence by which the jury could conclude that Candace Martin accepted the proposition. In other words, her silence in the face of the letter constitutes an admission by her that the contents of the letter, and the inferences to be drawn from those contents, were accepted by her. Thus, her silence can be used as an admission that she and her husband had a “bright idea” involving a joint plan to kill the deceased and that, as a result, their (joint) “guilt has stuck”.

2. [28]

   Paragraph 27 of the Crown’s written submission states:

3. [29]

   The facts of Freeman were quite different. That case involved the failure of a public solicitor on a bail application to deny (on the accused’s behalf) certain allegations ventilated before a magistrate. Ultimately, the Court of Criminal Appeal held that the evidence of the solicitor’s failure to contradict the asserted facts was not admissible as a tacit admission by silence. Its admission caused the trial to miscarry. However, the decision turned on its facts and the following passage in the judgment of Street CJ is relevant to the question of admissibility that arises in the present case:

4. [30]

   Counsel also took me to the Victorian case of R v MMJ [2006] VSCA 226. That was a case of child sexual assault. The victim was the child of the accused. The Crown led evidence from the mother of the child (and wife of the accused) that the accused remained silent when she put a number of questions to him. She said “he ignored a lot of my questions” and he “would only answer questions that he wanted to answer.” The Court was divided over the issue of admissibility and the question of whether his silence or selective answering of questions ought to have been left to the jury as an admission. Warren CJ took the view that the evidence was admissible and set out her reasons at [15]-[20]. Her Honour relied (at [18]) on the following passage from the judgment of Isaacs J in R v Grills (1910) 11 CLR 400; [1910] HCA 68:

5. [31]

   Buchanan and Ashley JJA, in separate judgments, took a different approach. Buchanan JA said at [53] that the reception of the evidence and the prominence that it took in the trial was “extremely prejudicial to the applicant” and that “the generality of the evidence deprived it of any significant probative effect.” Ashley JA took the view at [85] that the evidence may have been admissible as part of the “relationship” between the parties but doubted that it was evidence of an admission to any particular allegation. His Honour referred to the well-known statement by Windeyer J in Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23 at 541:

6. [32]

   In addition to the two authorities referred to by the parties, I have also considered the civil cases of Mundey v Askin [1982] 2 NSWLR 369 and Thatcher v Charles (1961) 104 CLR 57; [1961] HCA 5.

7. [33]

   In Mundey v Askin, the Court (Moffit P, Reynolds and Samuel JJA) said at 373:

8. [34]

   In Thatcher v Charles, the High Court was concerned with whether the silence of a civil litigant could be used against him in a driving case. Fullagar J (with whom Kitto J agreed) set out the relevant matter of principle in the context of the alleged admissions as follows:

9. [35]

   It is implicit in the italicised portion of Fullagar J’s judgment that such evidence might more readily be admitted in a civil case than in a criminal case. However, the principles are the same.

10. [36]

    These cases demonstrate that the question of when silence in the face of an accusation might be construed to be an admission will turn on all of the circumstances. The question, ultimately, is whether the circumstances and the nature of the accusation or statement were such that a denial would be expected or, where the case is being tried by a jury, whether it would be open to the jury to decide that a denial would be expected because the failure to respond to, or deny, the accusation is a tacit admission by the accused person.

11. [37]

    It is in that context that it is necessary to consider that the particular passage upon which the Crown seeks to rely falls towards the end of a lengthy and discursive piece of correspondence detailing many other facts and circumstances. To appreciate that, it is necessary to consider the entirety of the letter. The full text is included as an annexure to this judgment.

12. [38]

    It is then necessary to consider Candace Martin’s response in her text message of 3 March 2015. She said that she had received the letter (again, assuming it is the same letter) and that she had read it. However, she said it is “too much to deal with” and does not respond to any of its substantive parts (apart from indicating she wants to be alone to look after the children). Given the length of the letter, it is impossible to conclude that the particular admission and implication was clear to her at the time. I accept that when the matter was brought to her attention by investigating police she understood the implication, but that does not address the question of whether the nature of her texted response was such that a denial was to be expected.

13. [39]

    I am unable to conclude that it would be reasonable to infer an admission by silence from Candace Martin’s failure to refute the contents of the particular passages relied upon. Even those passages are somewhat ambiguous in their nature, although I accept that it would be open to the jury to conclude that they constitute an admission on the part of Mr Martin.

14. [40]

    This case is very different from cases where an accused person is confronted with accusations in person and either fails to deny those accusations or chooses to respond selectively.

15. [41]

    Accepting that the evidence passes the threshold test of relevance in ss 56-56 of the Evidence Act, I am of the opinion that the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to Candace Martin or may be misleading: s 135 Evidence Act 1995 (NSW). I am also of the view that the probative value of the evidence is outweighed by the danger of unfair prejudice to Candace Martin: s 137 Evidence Act.

16. [42]

    For those reasons the evidence of the contents of the letter (and the reply by text message) is not admissible to prove an admission on the part of Candace Martin.

Is the evidence otherwise admissible and, if so, in what form?

1. [43]

   The Crown submits that the evidence is admissible on another basis. The Crown points to evidence that establishes that Candace Martin took steps on Mr Martin’s behalf to remove the letter from his office on around 1 April 2015 and that she lied about her knowledge of the letter (and the steps she took to retrieve it) when interviewed by police on 9 April 2015.

2. [44]

   In a telephone call at 14:40 on 1 April 2015 the two accused were recorded having the following discussion over the telephone:

3. [45]

   Later that day there was a further telephone conversation in which Mr Martin asked Candace Martin “So you haven’t been to work yet?” to which she replied “no not yet.”

4. [46]

   On 3 April 2015 there was a further call in which Mr Martin asked Candace whether she had been to work for him and she replied “I did. Um, it’s not there.”

5. [47]

   The Crown then points to the lengthy recorded interview between police and Candace Martin that took place on 9 April 2015 commencing at about 9:30am and concluding at 1:30pm. Towards the end of that interview, the police (at Q 1430) told the accused that they had seized the letter while executing a search warrant on Mr Martin’s office. They read passages of the letter to the accused and asked her to explain them. They put to her that Mr Martin had asked her to retrieve the letter from the drawer in his office and that she had agreed to do so. She denied any knowledge of the letter and denied agreeing to take steps to remove it from Mr Martin’s office.

6. [48]

   The Crown will rely on those responses as lies demonstrating a consciousness of guilt.

7. [49]

   After the interview, the accused spoke with an undercover police officer and the conversation was recorded by listening device. This occurred at around 6:30pm on 9 April 2015. She told the undercover officer police “He wrote me a letter and ... the police found it.” She said “it was pretty much a written confession.” Later the undercover officer asked her “Do they [investigating police] have much on him?” and Candace Martin replied, “that letter. And now me.” [4]

8. [50]

   This body of evidence is capable of establishing that Candace Martin took steps to retrieve the letter (or at least agreed to do so) and that she told lies to the police on this subject. Accordingly, the evidence is relevant and admissible. It is capable of being used by a jury to establish a consciousness of guilt in Candace Martin. However, contrary to what I understood the Crown Prosecutor to submit, that decision does not mean the evidence become admissible as a tacit admission because of her failure to refute part of its contents in the text message of 3 March 2015. Nor does it mean that the letter itself, or its precise contents, should be or need to be elicited before the jury.

Principles

1. [51]

   Section 21(2) of the Criminal Procedure Act is as follows:

2. [52]

   Section 21(6) says “any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.”

3. [53]

   Section 29(3) provides “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.”

4. [54]

   I summarised the relevant principles in R v Roff [2015] NSWSC 1853 at [34]-[57]. The learned Crown Prosecutor referred to a similar, more authoritative but less current, summary undertaken by Sheller JA in Symss v R [2003] NSWCCA 77 at [68]-[73]:

5. [55]

   In the context of co-conspirators, the High Court considered when trials should be conducted jointly in the case of The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32. Gibbs CJ, Aickin, Wilson and Brennan JJ concluded at 678:

6. [56]

   This passage underpinned the oft-cited decision of Hunt J in Middis to which Sheller JA referred in Symss.

7. [57]

   Counsel for Candace Martin, in written and oral submissions, acknowledged that the starting point was that the trials should be heard together. However, it was submitted that the case falls within the kind of case contemplated in Middis. Reliance was placed on the decision in R v Pham [2004] NSWCCA 190. In that case, Adams J explained that the expression “immeasurably stronger” used by Hunt J in Middis should be understood to mean “significant, though not incommensurable". Spigelman CJ and RS Hulme J agreed with Adams J subject to some additional observations in the judgment of RS Hulme J. RS Hulme J emphasised that:

8. [58]

   That conclusion arose because of admissions made by the brother that tended to corroborate the evidence of the witnesses in question but which was not admissible against the appellant. All three judges were of the opinion that Pham’s trial miscarried. The factual circumstances in R v Pham were quite different to those of the present case although there are some common features. The most significant of those features is that the jury would be called upon to assess the same evidence on different bases and the accused would be required to face a trial where an admission made by her co-accused, which is not admissible against her as an admission, may be capable of suggesting that she was involved in the crime.

Application of these principles to the present case

1. [59]

   I have concluded the correct application of those principles, and the proper exercise of the discretion provided by ss 21, 29 and the common law, is to order separate trials.

2. [60]

   The material tendered on the separate trial application included two versions of the Crown Case Statement and the documents annexed to the affidavit of Candace Martin’s solicitor. The decision must be made in the light of that material and without knowing all of the detail in the Crown’s brief.

3. [61]

   As I have said, there appears to be a considerable body of evidence that is common to both accused. It seems this will include evidence proving the incidents giving rise to the charges, evidence going to the injuries and cause of death, witnesses who will testify about the movements of the two accused prior to and around the time of the offences, evidence concerning the insurance policies and Mr Martin’s interaction with the insurers, and communications between the two accused before and after the offences were committed.

4. [62]

   There are also separate bodies of evidence admissible against each accused that is not admissible against the other. This includes their interviews with police and evidence of post offence conduct, including lies, relied on by the Crown to demonstrate a consciousness of guilt.

5. [63]

   The issue for the jury will be different in each case as a result of the pleas of guilty entered by Candace Martin. In her case, Mr Martin’s involvement in the serious assaults of 7 April 2014 and the killing on 7 June 2014 will be admitted. That admission is inherent in her pleas of guilty. Mr Martin’s case appears to be that he was not involved in the first incident and was a victim in the second. This is not strictly a “cut throat defence”. Rather, like the case of R v Roff, it involves one accused implicating the co-accused while the other accused denies involvement. In Roff, the co-accused (Tarrant) implicated Mr Roff by her admissions to police. In the present case, Candace Martin will implicate Mr Martin by the solemn admissions inherent in her pleas of guilty to the accessory after counts.

6. [64]

   The Crown case is that there was longstanding animosity between Mr Martin and the deceased, and that the reconciliation that occurred in the early part of 2014 was a “ruse” to justify the taking out of the insurance policies that provided the financial motive for the killing. The Crown will seek to establish that Candace Martin “encouraged and emboldened” her husband by taking part in the “ruse” and agreeing to cover for him. [6] In light of her pleas of guilty, the issue appears to be when she became aware of her husband’s plans and whether she was an accessory before (as opposed to after) the offence or (put another way) whether she was party to a joint criminal enterprise to kill the deceased. Her liability for the grievous bodily harm of Mr Manning involves the application of the principle of extended joint criminal enterprise.

7. [65]

   Insofar as it is possible to make an assessment on the material tendered on the application, it appears that the case against Mr Martin is stronger than the case against Candace Martin. That assessment is based on Mr Martin’s direct involvement in the two incidents, his presence at the scene of the murder, the evidence connecting him to the taking out of the insurance policies, his status as a beneficiary of those policies, the animosity between him and the deceased and the admissions made in the letter to Candace Martin.

8. [66]

   The prosecution will rely on the letter from Mr Martin to prove an admission. The jury will be required to consider the contents of the letter and decide whether it constitutes an admission (and, if so, to what) or whether it is capable of some other explanation. Having undertaken that task, and used the letter in that way in the case against Mr Martin, it would undoubtedly be difficult for the jury to follow and to obey directions that it should disregard the letter in the case against Candace Martin except for the purpose of determining whether her attempt to retrieve it for her husband, and her subsequent lies about it, demonstrated a consciousness of guilt (and, if so, in respect of which offence). I accept Mr Healy’s submission that the adducing of the letter in her trial will make the case against her significantly stronger, albeit that it is not admissible against her and that the jury would be directed accordingly. That conclusion is not determinative of the application for a separate trial but it is very important in determining whether Candace Martin would be “prejudiced or embarrassed in her defence” and whether it is in the interests of justice to separate the trials.

9. [67]

   I accept that the starting point is that the trials should be conducted jointly. I have taken into account the potential or risk of inconsistent verdicts if the trials are separated. I also accept that there will be a degree of duplication in the tendering of common evidence in separate trials and that this will involve some inconvenience to the witnesses and will, almost certainly, lengthen the proceedings. However, the eliciting of the evidence proving the attempted murder and murder, and Mr Martin’s involvement in those events, is likely to be much simpler in Candace Martin’s trial as a result of her admission (inherent in her plea) that Mr Martin is guilty of both offences in which she is alleged to be an accessory. Further, if the trials are separated the jury will not be required to approach that body of evidence on two different bases. That is, the jury will not be required to approach Candace Martin’s case on the basis that the inferences the Crown asks it to draw against Mr Martin should be accepted while, in Mr Martin’s case, deciding whether there is any other explanation available.

10. [68]

    I accept that, generally, juries are able to discern between the cases for co-accused and are fastidious in obeying the directions of trial judges, including directions to disregard evidence tendered against one accused but not against the other. [7] However, as I said in a different context, this principle can only be taken so far:

11. [69]

    It is one thing for a jury to understand and obey a direction that it is to disregard altogether evidence tendered against one accused but not admissible against another. It is a more difficult thing for a jury to come to certain conclusions about whether a piece of evidence constitutes an admission in one case, and to put those conclusions out of its mind while considering the same evidence (in the other case) on the issue of whether the accused demonstrated a consciousness of guilt by taking steps to hide the evidence and by lying about it.

12. [70]

    Having considered all of the above matters, I am satisfied that it is in the interests of justice to make the order that Candace Martin be tried separately from Mr Martin. I am also satisfied that the accused will be embarrassed or prejudiced in her defence if the trials are conducted jointly. The factors militating in favour of making the order overcome the considerable hurdle, and prima facie position, that those alleged to have been jointly responsible for a crime or crimes should be tried together.

13. [71]

    I have taken into account the desirability that the accused be tried together in terms of the convenience of witnesses and likely savings in court time. I have considered the risk of inconsistent verdicts. Without attempting to be exhaustive, and in short summary form, the matters that persuade me that there should be an order for separate trials are:

    1. (1)

       The case against the Mr Martin is considerably stronger than the case against Candace Martin.

    2. (2)

       The case against Candace Martin will be made stronger by the admission in a joint trial of evidence that is not admissible against her (namely, the admission made by Mr Martin and the full text of the letter in which that admission is made).

    3. (3)

       While there is a significant body of common evidence, there are also substantial bodies of evidence which are either admissible against one accused only or unlikely to be disputed (and able to be elicited briefly, or made subject to admissions) in Candace Martin’s case.

    4. (4)

       The jury would be required to consider the evidence of the letter on the basis that it may constitute an admission against Mr Martin in deliberating on his case, while being required to ignore the text of the admission in Candace Martin’s case in considering whether her actions in attempting to retrieve the letter and telling lies about the letter in one case.

    5. (5)

       In spite of firm and clear directions, even the most conscientious juror will struggle to obey such directions because of the sub-conscious impact of the assessment of the admissions in Mr Martin’s case when the jury considers the consciousness of guilt evidence in Candace Martin’s case.

14. [72]

    The impact of Candace Martin’s pleas of guilty to the accessory after charge also militates in favour of separating the trials of the two accused. I accept the submission of the Crown Prosecutor and counsel for Candace Martin that severance of those counts may operate unfairly to Candace Martin. However, there is some force in the submission that Mr Martin may be embarrassed or prejudiced if he were tried by the same jury that heard Candace Martin enter pleas of guilty which have, as their foundation, the guilt of Mr Martin. It is not necessary to consider this matter further as I have not heard full submissions on the issue and no application for separate trials was made by Mr Martin. However, it is a further matter that fortifies the conclusion that I should exercise the discretion to separate the trials of the two accused.

15. [73]

    Accordingly, I will make an order that Candace Martin be tried separately to Phillip Martin.

16. [74]

    For the foregoing reasons, I make the following orders and evidentiary rulings:

    1. (1)

       The evidence of the letter and the text message in response is not admissible as an admission by Candace Martin.

    2. (2)

       The evidence of Candace Martin’s attempt to retrieve the letter and her lies in relation to the letter are admissible to prove a consciousness of guilt.

    3. (3)

       Order that Candace Martin be tried separately to Michael Phillip Martin