R. v. Muscat and Kelly, 2015 ONSC 4350

R. v. Muscat and Kelly, 2015 ONSC 4350

CITATION: R. v. Muscat and Kelly, 2015 ONSC 4350

COURT FILE NO.: 1741/13

DATE: 20150720

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Mary Muscat and S. Kelly

BEFORE: The Honourable Mr. Justice Russell Raikes

COUNSEL: K. Leszczynski, Counsel for Provincial Crown M. Robb, Counsel for Federal Crown S. Murphy, Counsel for M. Muscat M. Moon, Counsel for S. Kelly

HEARD: June 17, 2015 at Sarnia, Ontario

ENDORSEMENT

Applications

1Both defendants move to sever counts 4 to 7 of the indictment. The defendant, Kelly, seeks an order severing his trial from that of the defendant, Muscat, only if the request to sever counts 4 to 7 is denied.

2The indictment dated January 20, 2014 states:

MARY ALICE MUSCAT STANDS CHARGED:-

1. That between the 12^th^ and 13^th^ day of April in the year 2013 inclusive, at the City of Sarnia, in the Province of Ontario, being together with Daniel William Donald Mitchell, did attempt to murder Je Vang, contrary to section 239(b) of the Criminal Code of Canada.

MARY ALICE MUSCAT AND STEVEN TERRENCE KELLY STAND FURTHER CHARGED:-

2. That between the 12^th^ and 13^th^ day of April in the year 2013 inclusive, at the City of Sarnia, in the Province of Ontario, being together with Daniel William Donald Mitchell, did without lawful authority confine Je Vang, contrary to section 279(2) of the Criminal Code of Canada.

MARY ALICE MUSCAT AND STEVEN TERRENCE KELLY STAND FURTHER CHARGED:-

3. That between the 12^th^ and 13^th^ day of April in the year 2013 inclusive, at the City of Sarnia, in the Province of Ontario, being together with Daniel William Donald Mitchell, did wound Je Vang thereby committing an aggravated assault, contrary to section 268 of the Criminal Code of Canada.

MARY ALICE MUSCAT STANDS FURTHER CHARGED:-

4. That on or about the 23^rd^ day of April in the year 2013, at the city of Sarnia, in the Province of Ontario, did possess a substance included in Schedule 1, to wit: methamphetamine, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

MARY ALICE MUSCAT STANDS FURTHER CHARGED:-

5. That on or about the 23^rd^ day of April in the year 2013, at the city of Sarnia, in the Province of Ontario, did possess a substance included in Schedule 1, to wit: morphine, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

MARY ALICE MUSCAT STANDS FURTHER CHARGED:-

6. That on or about the 23^rd^ day of April in the year 2013, at the city of Sarnia, in the Province of Ontario, did possess a substance included in Schedule 1, to wit: Fentanyl, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

MARY ALICE MUSCAT STANDS FURTHER CHARGED:-

7. That on or about the 23^rd^ day of April in the year 2013, at the city of Sarnia, in the Province of Ontario, did possess a substance included in Schedule 1, to wit: Heroin, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

3As the indictment indicates, Muscat and Kelly are jointly charged with the unlawful confinement and aggravated assault of Je Vang on April 12 and 13, 2013. Ms. Muscat is also charged with attempted murder in respect of the same incident. The controlled substances charges are against Muscat only. Each charge is for possession for the purpose of trafficking a different controlled substance found in the Defendant’s home on April 23, 2013. This matter is scheduled for trial by jury on September 28, 2015.

4The defendant, Kelly, asserts that the evidence with respect to the controlled substances charges against Muscat has no probative value to the charges against him, but will have a significant prejudicial effect on his ability to have a fair trial. Specifically, there is a real danger of propensity reasoning by the jury; that the evidence of Muscat’s drug trafficking will cause the jury to infer that he is a bad person, one involved in the drug trade, and he will be guilty by association.

5The defendant, Muscat, asserts that the charges have no real or temporal connection to the charges concerning the assault on Vang. The drugs seized which form the basis for the controlled substances charges against Muscat came from the execution of a separate search warrant 10 days after the alleged assault. There is a real danger that the jury will be drawn to conclude that Muscat is a drug dealer (if the controlled substances evidence is persuasive) and, hence, more likely to have engaged in the violent acts on April 12 and 13, 2013 against Vang.

6Counsel for Kelly acknowledged in his submissions that there is a strong rationale for the charges involving the alleged acts against Vang to be tried together. The defendants are jointly charged with unlawful confinement and aggravated assault of Vang. He notes, however, that if the controlled substances charges against Muscat are not severed, then the danger of propensity reasoning is so extreme that what he termed “the nuclear option” must apply; the trials of the accused should be severed notwithstanding the inconvenience, expense and risk of inconsistent findings.

7The applications to sever are opposed by both the Provincial and Federal Crowns, although counsel for the Federal Crown made submissions only on Muscat’s application. There are no controlled substances charges against Kelly and, accordingly, he lacked standing to make any submissions on that application.

8The Provincial Crown argues that the evidence of Muscat’s involvement in the trafficking of crystal methamphetamines is an integral part of the Crown’s case. It provides the context and motivation for the alleged assault of Vang. He was confined and assaulted by Muscat and Kelly precisely because he was a competitor to Muscat’s drug enterprise. Accordingly, the evidence of Muscat’s drug operation will be before the jury in any event. The jury will have to be cautioned in any event that there are no drug charges against Kelly, and the Crown does not assert the Kelly was part of Muscat’s drug operations.

9Further, the Provincial Crown submits that the evidence of the drugs found in Muscat’s residence corroborates the anticipated evidence of Crystal Gilbert, a woman who acted as a “mule” for Muscat who will be testifying to the nature and extent of Muscat’s drug enterprise, the persons involved in it and their roles. She will also testify with respect to events leading up to the alleged assault on Vang and statements made by Muscat both prior to and post-offence which shed light on the motive or animus for the assault. She will testify as to statements made by Kelly concerning the attempted clean-up of blood evidence from the assault.

10The Federal Crown argues that there is a real and substantial nexus between the Criminal Code and controlled substances charges, both factual and temporal. The assault on Vang took place on April 12 and 13, 2013 in the basement of Muscat’s home. Vang was seriously wounded and was taken to hospital by someone known to Muscat. At the time, Vang was under police surveillance as a suspected drug dealer. Police followed Vang to the hospital. As soon as Vang was well enough to disclose what had happened at Muscat’s home, the police obtained a search warrant to collect evidence related to the unlawful confinement and assault. That warrant was executed on April 23, 2013 at which time the drugs in counts 4-7 were found in Muscat’s home. Additional quantities of methamphetamines were found the next day in Muscat’s home secreted in other locations when a second warrant was executed, this time for the purpose of searching for drugs.

11The Federal Crown argues that as it relates to the accused, Muscat, the evidence of drugs found in Muscat’s home on April 23 and 24, 2013 supports the motive for the confinement and torture of Vang by, inter alia, Muscat. The Federal Crown asserts that the accused has not met her burden to show that the accused would be unfairly prejudiced by trial together of these counts.

12Although there is some overlap in theme and analysis between the positions advanced by Muscat and Kelly on their applications to sever, I will deal with each separately in the analysis section below.

THEORY OF CASE – CROWN

13The Crown’s case can be summarised as follows:

14Muscat was a drug dealer in the city of Sarnia. One of the products sold by her was crystal methamphetamine. Several months prior to April 12, 2013, Vang moved to the City of Sarnia, in large part, to sell crystal methamphetamine to its residents. He became Muscat’s competition.

15The Crown anticipates that Vang will testify that he had several conversations and meetings with Muscat prior to April 12, 2013 in which she admitted that she also sold crystal methamphetamine in the City of Sarnia and that she wanted him to increase the price that he was selling this drug to create a “fairer” market in which they could compete. The Crown anticipates that Krystal Gilbert will corroborate Vang’s evidence regarding Muscat’s involvement in the trafficking of crystal methamphetamine and Muscat’s expressed frustration regarding Vang’s competition over the share of that market in the City of Sarnia.

16Gilbert will testify that Muscat was a leader in a major drug trafficking enterprise in Sarnia that sold both crystal methamphetamine and heroin. She will testify that she worked for Muscat as a drug runner. She routinely picked up significant quantities of illegal drugs in Toronto and brought them back to Sarnia for Muscat to sell. She also dropped off significant quantities of cash for Muscat to persons in Toronto for the purchase of these illegal drugs.

17Gilbert will testify that she was aware that Muscat knew Vang and that Vang attended Muscat’s residence on at least one occasion before April 12, 2013 for the purpose of discussing the price at which he was selling crystal methamphetamine in the city of Sarnia.

18The Crown alleges that Muscat invited Vang to her residence in Sarnia during the evening of April 12, 2013 to discuss the price at which she and Vang were selling crystal methamphetamine in the City of Sarnia. Once Vang entered her house, Muscat lured him to the basement where he was ambushed by Dan Mitchell and the co-accused, Steven Kelly, with Muscat’s assistance. Vang was placed in handcuffs and handcuffed to a chair in Muscat’s basement. He was then interrogated and beaten for several hours by all three parties: Muscat, Kelly and Mitchell.

19The purpose of the interrogation was to obtain Vang’s true identity as Muscat believed he may have been part of an organized crime group called the “Triads” or was an undercover police officer. Vang will testify that Muscat told Mitchell to get a hammer which he then used to hit Vang on the head several times. Muscat also told Mitchell to get a knife and directed Mitchell to stab Vang which he did it twice to Vang’s abdomen.

20Vang will testify that Muscat hit him several times with weapons including a leather strap and continued to beat him both before and after Mitchell struck him with a hammer and stabbed him in the abdomen.

21On April 13, 2013, Vang was taken from Muscat’s home by an individual known to Muscat. He was transported to hospital where he underwent extensive medical treatment for his injuries.

22Gilbert will testify that she attended Muscat’s home the morning after Vang was beaten and stabbed, i.e. on April 13, 2013. When she arrived at approximately 9:30 AM, Muscat and Kelly were at Muscat’s residence. Mitchell arrived on foot shortly after. Gilbert will testify that when Muscat saw Mitchell wearing bloodied shoes that morning, she asked him, “Why are you still wearing those shoes? There is blood on them.”

23Muscat put Mitchell’s shoes in a garbage bag, gave them to Gilbert and told Gilbert to throw them in a dumpster. Gilbert complied. She took the garbage bag with the bloodied shoes and disposed of them in a garbage pail at the Tim Horton’s located on Exmouth Street in Sarnia.

24After returning from Tim Horton’s to Muscat’s house, Gilbert spoke with Muscat who told her “that they had tied [Vang] up, she had stabbed him and that Dan and them had beaten him up a little bit and that John Williams was the one that came and got him from the house and drove him away from the house.” Muscat appeared worried and told Gilbert “I’m gonna to go to jail for this, and I’m probably gonna be charged for this.” Muscat also told Gilbert that she “should have murdered him because now what’s going on and Dan, I guess wanted to do it and she had said no and whatever so.”. Gilbert will testify that Muscat told her that she stabbed Vang and Muscat was acting proud of it. Muscat told Gilbert that Mitchell and Kelly were hitting him and punching him and putting the fear into him.

25Muscat told Gilbert that Kelly was downstairs cleaning her basement. Gilbert could smell the bleach.

26Later that same day, before driving Kelly back to London, Gilbert went to Winners in Sarnia and purchased a new pair shoes for Mitchell, very similar in appearance to the ones that she had discarded for him. Gilbert will testify that Muscat and Kelly were scared that they were going to be charged for what they did or were afraid that Vang was going to say something.

27Muscat directed Gilbert to take Kelly back to his residence in London, Ontario. Gilbert did so. Muscat accompanied her and Kelly to London.

28Gilbert will testify that approximately one or two days after Vang was stabbed, Gilbert went with Muscat to visit someone she knew as “Biggsy” to find out what happened to Vang. Gilbert remained in the car while Muscat spoke with Biggsy. When Muscat returned to the car, she told Gilbert that Vang was in critical condition in hospital. She also told Gilbert that it was John Williams who took Vang to hospital. Muscat was upset with Williams.

29Gilbert will also testify that in the days following the stabbing and beating of Vang, Muscat told her that she had Vang’s cell phones, the owner’s manual for his motor vehicle and the dealer package for his vehicle including ownership and insurance. Subsequently, Gilbert drove Muscat to a white house on Russell Street in Sarnia where Muscat dropped off Vang’s belongings in order to get the evidence out of her house.

30On April 23, 2013, members of the Sarnia Police Service executed a Criminal Code search warrant at Muscat’s house. This warrant was obtained in respect of the beating and unlawful confinement of Vang and was for the purpose of obtaining evidence to corroborate those crimes.

31During the execution of the warrant on April 23, 2013, a bag of crystal methamphetamine was found on the floor in the laundry room of Muscat’s home. A search warrant was then obtained pursuant to section 11 of the Controlled Drugs and Substances Act to search Muscat’s residence. That warrant was executed by police on April 24 and 25, 2013. Police found large quantities of cash, crystal methamphetamine, fentanyl patches, heroin, morphine pills, debt lists and other items consistent with a drug trafficking enterprise.

32The drugs found at Muscat’s home during the initial Criminal Code search warrant on April 23, 2013, and the drugs found during the April 24 and 25, 2013 CDSA search warrant form the basis of counts 4-7 of the indictment above.

33There is no evidence, nor does the Crown contend that Kelly was part of Muscat’s drug enterprise or trafficking activities. The charges against Kelly relate solely to the attack on Vang at Muscat’s home on April 12 and 13, 2013. There is also no suggestion that the drugs found in Muscat’s home on April 23, 24 and 25, 2013 belong to Kelly. So far as is presently known, he has no connection to those drugs.

LAW

34Section 591 of the Criminal Code governs the joinder of counts in an indictment. Except for murder, section 591(1) places no restrictions on the number of counts that can be tried together on a single indictment: R. v. Last (2009), 2009 SCC 45, 247 C.C.C. (3d) 449 at paragraph 14.

35On an application to sever a multi – count indictment, the overarching criteria are the interests of justice. The interests of justice under section 591(3) encompass those of the accused, the co—accused, and the community as represented by the prosecution: R. v. Savoury (2005), 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 at paragraph 22.

36The onus lies on the accused seeking the severance to persuade the court on a balance of probabilities that the interests of justice require severance: R. v. Jeanvenne, 2010 ONCA 706 at paragraph 26. The ultimate question in deciding whether to grant a severance application is whether severance is required in the interests of justice per section 591(3) of the Code: R. v. Last, supra, at paragraph 16.

37The interests of justice encompass the accused’s right to be tried on the evidence admissible against him, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner: R. v. Last, supra, at paragraph 16. Joinder of counts may create the potential for cross – pollination on credibility assessments and a risk that the jury will engage in prohibited propensity reasoning: R. v. Last, supra, at paragraph 36. There is also the risk that when counts are tried together, evidence admissible only on one count will influence the verdict on an unrelated count: R. v. Last, supra, at paragraph 16.

38The trial judge must weigh these sometimes competing interests and will direct severance only if the accused seeking severance satisfies the trial judge that severance is required. To satisfy that burden, the accused must overcome the presumption that co – accused who are jointly charged and are said to have acted in concert, should be tried together: R. v. Savoury, supra, at paragraph 22. The policy behind the presumption is that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion: R. v. Savoury, supra, at paragraph 22.

39It is important to recall that the interests of justice often call for a joint trial. Severance can impair not only efficiency but the truth – seeking function of the trial: R. v. Last, supra, at paragraph 17. The case authorities referring to a “strong presumption” against severance must be looked at carefully when considering a situation in which the counts on the indictment do not arise out of the “same transaction”. Even in such a case, the onus still remains on the defence to establish that severance is required in the interests of justice. The presence or absence of a joint enterprise or common transaction may be an influential factor: R. v. Anderson, [2011] O.J. No. 2872 at paragraph 4. “Transaction” is a comprehensive and flexible term that can include a series of interconnected events closely related as to time and space: R. v. Melaragni, [1992] O.J. No. 2294 (Ont. Ct. Gen. Div.).

40The courts have identified a non-exhaustive list of factors which can be considered and weighed in the assessment and determination of the interests of justice in a particular case. These factors are set out in R. v. Last, supra at paragraph 18 as follows:

1. the general prejudice to the accused;
2. the legal and factual nexus between the counts;
3. the complexity of the evidence;
4. whether the accused intends to testify on one count but not another;
5. the possibility of inconsistent verdicts;
6. the desire to avoid a multiplicity of proceedings;
7. the use of similar fact evidence at trial;
8. the length of the trial having regard to the evidence to be called;
9. the potential prejudice to the accused with respect to the right to be tried within a reasonable time;
10. the existence of antagonistic defences as between co-accused persons.

41All of the relevant factors must be considered and weighed cumulatively to determine whether the interests of justice require severance: R. v. Last, supra, at paragraphs 45 and 47.

42It is open for a trial judge to conclude that a proper jury instruction can overcome any potential prejudice to an accused, but this should be done only where there are sufficient countervailing facts providing a rationale for a joint trial. A limiting instruction and its utility are but one factor in the balancing exercise: R. v. Last, supra, paragraphs 45 and 46.

ANALYSIS

A) Kelly Application

43The starting point for my analysis is to consider first the general prejudice to the accused, Kelly, if the counts are not severed. In my view, there is no prejudice for reasons which follow. I am also satisfied that Kelly’s concern about “guilt by association” can be adequately addressed by instructions to the jury which would be necessary even in a situation where the charges against Kelly proceeded entirely independent of the charges against Muscat.

44The alleged confinement and wounding of Jang did not happen at random or in a vacuum. The evidence of Muscat’s drug enterprise, her past dealings with Jang and her reasons for the events of April 12 and 13, 2013 are inextricably connected to the charges against Kelly. The evidence of drugs found in Muscat’s home at the time of the Criminal Code search and the next day pursuant to the CDSA warrant are corroborative of Muscat’s involvement in trafficking illicit drugs including methamphetamines which underlies her motive. The search on April 23, 2013 was directly related to the charges which Kelly now faces. It was reasonably proximate in time to the events in issue and the drugs found are directly relevant to the motive and narrative for the assault.

45In my view, severing counts 4 to 7 of the indictment will not insulate Kelly from the evidence of Muscat’s alleged drug operations, nor even the evidence of the drugs found on April 23 and 24, 2013. That evidence is probative and corroborative of the evidence of each of Jang and Gilbert. Counsel for Kelly pointed out that a Vetrovec warning will likely be required for both of those witnesses. The drugs found at Muscat’s residence in the course of and incidental to the search for evidence of the assault on Jang may corroborate the testimony by Jang and Gilbert as to Muscat’s drug operations, and her motive for inviting Jang to come to her home on April 12, 2013. Certainly, there is no admission by Muscat that she was engaged in trafficking drugs at that time.

46Even if the charges against Kelly proceeded entirely independent of the charges against Muscat, which I decline to order, the evidence of Muscat’s drug trafficking operations including her past dealings with Jang and motive for the assault would be before the jury in any event. Jang’s testimony will be that he was interrogated by, inter alia, Kelly with respect to whether he had ties to police or to another gang known as the “Triad”. Jang was Muscat’s competitor. The evidence of the drugs found in Muscat’s home when the police searched for evidence of the assault is directly relevant to Muscat’s business activities and her motive for the attack on Jang of which Kelly was a part.

47The jury must be advised that Kelly is only charged with counts 2 and 3; that he is not charged with counts 1, and 4 to 7. As in any case of jointly accused persons, the jury will be instructed to determine guilt for each accused separately and only on the evidence relevant to the elements required to be proven for that accused. The instructions to the jury will go further to specifically caution them against the kind of propensity reasoning put forward by Kelly on this application. Such a caution is inevitable in respect of the charges against Kelly regardless the form the trial may take.

48This is not a case where there are cut-throat defences, nor does Kelly indicate any intention to testify at trial. He is free to do the latter since he has no jeopardy on the drug charges. This is not a case where he would like to testify on some but not all of the charges.

49The evidence to be tendered by the Crown is not unduly complex. There is a factual and legal nexus to the charges. It makes eminent practical sense for the charges against Kelly and Muscat to proceed together both for efficiency purposes and to avoid the risk of inconsistent verdicts.

50On balance, I find that the interests of justice favour a single trial on all counts in the indictment. The accused’s right to make full answer and defence and to have a fair trial are not compromised by proceeding in this fashion. The accused has failed to meet the burden upon him to satisfy me that, on a balance of probabilities, a severance of counts or accused is necessary for the interests of justice.

B) Muscat Application

51Similarly, I reject the application by Muscat to sever counts 4 to 7 as:

1. There is no prejudice to Muscat of these charges being tried together with counts 1 to 3. The evidence is probative of her illegal drug operations and her motive for the unlawful confinement and assault of Jang. It is also corroborative of the evidence of Jang and Gilbert with respect to her drug trafficking operations. That she was Jang’s competitor and physically injured him in furtherance of her business activities will be before the jury in any event;
2. The drugs indicated in counts 4 to 7 were found in her home, the same location as the alleged assault of Jang;
3. The drugs indicated in count 4 are the same kind of illicit drug about which she had her disagreements on pricing with Jang;
4. The drugs were found during the search for the evidence of the assault, and the CDSA warrant issued as a result the next day. There is a factual and temporal nexus;
5. Her involvement in drug trafficking is an integral piece of the narrative which underpins the events in question with Jang;
6. The same officers who investigated the assault were involved in the searches;
7. The evidence of the drugs seized is not unduly complicated and will not likely cause confusion for the jury on the issues related to counts 1 to 3;
8. This avoids a risk of inconsistent verdicts;
9. It will not significantly increase the time for trial if these charges are heard together but would result in significant duplication of time and evidence if the charges are severed;
10. There are no antagonistic defences as between Muscat and Kelly.

52Severance of the charges would not likely affect or prejudice the accused’s right to be tried within a reasonable time so this is a neutral factor.

53There was a suggestion by counsel for Muscat that she might testify in respect of the drug charges if they were severed. I can put it no higher than “might”. Certainly, there was no affidavit filed or any other evidence to indicate that this was seriously considered and contemplated.

54The leading case on the import of whether an accused wishes to testify in the context of a severance application is R. v. Last, supra. Justice Deschamps for the court wrote:

“25. In assessing the accused’s testimonial intention on a severance application the underlying concern is for the accused’s ability to control his defence, and, more specifically, his right to decide whether or not to testify with respect to each of the counts unimpaired by inappropriate constraints.

26. Both the Crown and the defence submit that the accused’s intention should be objectively justifiable. This requirement is, indeed, a threshold. The accused’s expression should have both a subjective and an objective component. However, while a formulaic expression of a subjective intention is not sufficient in and of itself to discharge the accused burden to have the counts severed, the trial judge should not substitute his or her own view for that of the accused and determine that the accused should testify or not. Rather, the trial judge must simply satisfy him or herself that the circumstances objectively establish a rationale for testifying on some counts but not others. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention. That information could consist of the type of potential defences open to the accused or the nature of his testimony: Cross, at page 421. However, the accused is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in a manner he deems appropriate.

27. While an accused’s provisional intention with respect to testifying is certainly a consideration which should be given significant weight, it is but one factor to be balanced with all the others. An accused’s stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of a severance application. It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying, or be outweighed by factors that demonstrate that the interests of justice require a joint trial.”

55The accused has failed to provide any information or evidence to convey objectively that there is any substance to a testimonial intention in this case. Frankly, the suggestion that the accused might testify came only in the course of oral submissions by Muscat’s counsel and, to some degree, only in passing. Certainly, this position was not forcefully advanced. The evidence before me lacks any basis on which I could objectively infer a justifiable intention to testify on some but not all counts. There was no request for an adjournment to permit Muscat to file or tender such evidence.

56In any event, I find that the other factors referred to above significantly outweigh the possibility that the accused might wish to testify on the drug charges if severed. On balance, the interests of justice favour a single trial where the same evidence with respect to the drugs found in Muscat’s home will be tendered once. Her ability to make full answer and defence and her right to a fair trial are not compromised. I find that the accused has not met her burden to satisfy me on a balance of probabilities that a severance should be granted in the interests of justice.

57In the result, the applications to sever by the accused, Kelly, and the accused, Muscat, are dismissed.