R v Cage; R v Lowcock; R v Stamp [2024] NSWSC 78

R v Cage; R v Lowcock; R v Stamp [2024] NSWSC 78

Count 4 (aggravated sexual assault alleged against Cage only) does not arise out of the same set of circumstances as the other counts. Its joinder would result in positive injustice to the co-accused (Lowcock and Stamp) by exposing them to prejudicial evidence irrelevant to the charges against them, and deny them important forensic opportunities (including full cross-examination of a key witness). The prejudice cannot be cured by judicial directions. Severance is required in the interests of justice.

Jurisdiction
Australia
Judgment Date
09 February 2024
Procedural Posture
Criminal / Pre Trial Ruling on Severance of Counts
Outcome
Count 4 severed from indictment. Separate trial ordered.
Legal Topics
['joinder of Counts' 'severance of Counts' 'interests of Justice' 'separate Trials' 'sexual Assault' 'murder']
['criminal Law' 'criminal Procedure'] ['joinder of Counts' 'severance of Counts' 'interests of Justice' 'separate Trials' 'sexual Assault' 'murder']

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Procedural Posture

Criminal / Pre Trial Ruling on Severance of Counts

Legal Issues

  1. 1 ['Whether count 4 (aggravated sexual assault) ought to be severed from the indictment for a separate trial' 'Whether the offences arose out of the same set of circumstances within the meaning of s 29(1)(b) Criminal Procedure Act 1986 (NSW)' "Whether joinder results in 'positive injustice' to accused not charged with count 4" 'Availability of severance under Criminal Procedure Act 1986 (NSW) ss 21 and 29']

Ratio Decidendi

Count 4 (aggravated sexual assault alleged against Cage only) does not arise out of the same set of circumstances as the other counts. Its joinder would result in positive injustice to the co-accused (Lowcock and Stamp) by exposing them to prejudicial evidence irrelevant to the charges against them, and deny them important forensic opportunities (including full cross-examination of a key witness). The prejudice cannot be cured by judicial directions. Severance is required in the interests of justice.

Court Disposition

Count 4 severed from indictment. Separate trial ordered.

Orders

  • ['Count 4 is severed from the indictment.' 'A separate trial in relation to count 4 is to be conducted at Newcastle District Court on a date to be fixed.' 'Count 4 is adjourned for mention at Newcastle District Court on 14 March 2024 with the accused excused on that day if legally represented.']