Deakin Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Deakin Law Review |
|
DAVID ROSS QC[*]
By Indictments Act 1915 Schedule I rule 3 the Parliament of England enacted that ‘charges...may be joined in the same indictment if those charges are founded on the same facts or form or are a part of a series of offences of the same or similar character’. In time the Commonwealth and each Australian State and Territory enacted words to like effect.
The starting point is that offences will be heard separately unless the evidence proposed to be led by the prosecution shows compliance with the legislation. If the evidence would not comply then a judge must sever the indictment.[1]
The joinder of charges in one indictment has the effect of placing before a jury the allegation that the accused has broken the law on another occasion. The risk of such allegation is that a jury will use the evidence on one count to show propensity to commit the offence or offences in the other count or counts. Special rules seem to have emerged in sexual cases. Where evidence on a count is part of the proof of another count there is said to be cross-admissibility. Cross-admissibility means that the counts will ordinarily be joined. I will not deal with the cross-admissibility of uncharged acts.
Over the years judges have adopted procedures said to reduce or obviate the risk of such impermissible reasoning by a jury. To start with, an indictment is not to be overloaded. Counsel are said to have their own separate duties. The trial judge has a discretion to stay or sever counts, and appeal courts have issued diffident guidance on how that discretion is to be exercised. In the event that a trial proceeds on joint counts, warnings are given to the jury on permissible and impermissible reasoning. Appeal courts assess the correctness of what a trial judge has done.
I will examine policy and the problems caused by joinder, see how judges apply the legislation, and determine its effectiveness. I will identify problems and propose solutions. Except where other parts of this analysis call for it I will not deal separately with the joinder of more than one accused on the indictment.
In principle whenever a person performs a serious criminal act an offence can be charged. If a number of acts are all one transaction those acts should find themselves in only one count. Lord Morris said in Merriman:
...it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend on the circumstances.[2]
In Merriman the accused had stabbed the victim a number of times. If a precise understanding of the charge laid, is that it represents a single crime, although evidenced by multiple acts, then a single count is permissible.[3] But what circumstances will justify a number of acts being incorporated into one count will tend to vary according to the judge who happens to preside at the trial. In Trotter the trial judge was held wrongly to have admitted evidence of more than one indecent assault on a single count for that offence.[4] The case was a good example of the “latent ambiguity” warned against by Dixon J in Johnson v Miller.[5]
Thus it can be seen that a count will be improper if it is afflicted by duplicity including latent duplicity. Kirby J said in Walsh v Tattersall:
...the general rule of our legal system is still this: that a prosecutor may not charge in one count of an indictment... two or more separate offences provided by law.[6]
The rationale for the rule against duplicity was set forth by Gaudron and McHugh JJ in S:
...a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict...
The rule against duplicitous counts has long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. [7]
A good example of a count which may appear duplex on its face but is not, is that based on an offence which is an hendiadys: charges joined by ‘and’. Because of that the count seems to contain more than one offence. Assault and rob, aid and abet or counsel and procure (the commission of a single identified offence) are good examples. A count framed in such a way has been held not to be duplex.[8]
Assuming that a prosecutor does join counts for different offences in an indictment, that joinder will not escape scrutiny as will be seen. So where a man was alleged to have committed sexual offences against different girls it has been held that the offences against each girl should be tried separately.[9]
There are forceful reasons of policy in having different counts joined in the one indictment.[1] Some of these are based on administrative efficiency. A trial of several charges together is said to be quicker (and presumably cheaper) than separate trials for each offence. A witness who would be common to more than one offence gives evidence only once. Further, where one jury returns verdicts on each count the risk of inconsistent verdicts is reduced.
There are forceful reasons of policy in not having different counts joined in the one indictment. Lord Cross said in Boardman:
If the charges are tried together it is inevitable that the jurors will be influenced, consciously or unconsciously, by the fact that the accused is being charged not with a single offence against one person but with three separate offences against three persons. It is said, I know, that to order separate trials in all these cases would be highly inconvenient. If and so far as this is true it is a reason for doubting the wisdom of the general rule excluding similar fact evidence. But so long as there is that general rule the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence by trying the charges together.[10]
The common law on the joinder of counts prevailed in England until 1915. At that time there was a difference between felonies and misdemeanours. The first common law rule was that a count for felony could not be joined with a count for misdemeanour in the one indictment. If the indictment were to contain more than one count those counts must be for felony or for misdemeanour. The indictments were called felony indictments or misdemeanour indictments. If the multiple counts would embarrass the prisoner in his defence, the judge was able to quash an indictment or to put the prosecutor to his election on which charge would proceed.[11]
In England Indictments Act 1915 was passed. It made a substantial alteration to the common law and to the bits and pieces of legislation that had hitherto regulated the common law. Relevantly it provided:
Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts or form or are a part of a series of offences of the same or a similar character.[12]
In Australia similar provisions were enacted.[13] It is also worth noting that legislation in each State and Territory provides for joinder in summary matters.
In Queensland and Western Australia the Criminal Codes provide: ‘Except as otherwise provided, an indictment must charge 1 offence only and not 2 or more offences.’[14] No other provision has that express starting point. In those other jurisdictions there must be an implication that unless the provisions of joinder are satisfied, an indictment is to contain only one count.
An indictment must be approved by a prosecutor. When contemplating whether an indictment should join counts, not being alternatives, a prosecutor will privately have to determine the advantages and disadvantages of the joinder. The prosecutor’s role in the framing of an indictment is just as lonely as the decision on what witnesses to call at trial.[15] In Pearce, McHugh, Gummow and Hayne JJ put the duty of the prosecutor this way:
The decision about what charges should be laid and prosecuted is for the prosecution. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.[16]
In Collins, McPherson JA and Lee J said of the Queensland Criminal Code:
Generally speaking, the proper remedy for an accused who alleges improper joinder and wishes to challenge the form of the indictment is to move the court before pleading for the indictment to be quashed on the ground of formal defect: s 596; R v Pugh [1971] Qd R 249.[17]
Curiously, their Honours said that it was not proper for the trial judge to act on his own initiative under s 596.[18] I say it is curious for in a motion contemplated by s 596 the submission would be that the joinder was legally impermissible. The fact that the issue was raised by the trial judge did not mean that he made his ruling suo motu. His preliminary observations were adopted by defence counsel. A trial judge would be placed in an invidious position if he or she had suspected that the joinder had been wrong in law. A judge is not a mere umpire who can allow his or her court to be used as a forum for evidence on an indictment which he or she suspects is invalid. As was said in Canada by Lamer J (as he then was):
...it is clear that judges are no longer required to be as passive as they once were; to be what I call sphinx judges.[19]
Even if there is no defence motion pursuant to s 596, there can always be a prayer to the judge for the exercise of his or her discretion to sever the indictment. But however it is done, the application should be made at trial. If no application of any sort is made by the defence about misjoinder, the chance of such a ground’s succeeding on appeal is slim.
One of the rules insisted on by appeal court judges is that the indictment must not be overloaded by the joinder of counts. The case must be manageable by a jury. In Smart the accused was charges with 63 counts of financial misdeeds. The Full Court said:
There can be no precise mathematical limit to the number of counts that can be joined...but it is of the utmost importance that the Crown’s reasons for joining a large number of counts should be closely scrutinized with a view to ensuring that the accused is not subjected to improper prejudice.[20]
The court went on to say that it was not in the interests of the public or the accused that very long trials should result in conviction and successful appeal. For the trial judge there was an increased risk of error and an increased burden of charging the jury.[21] It is no surprise that the appeal succeeded.
Other courts have cautioned prosecutors against overloading indictments. Mr Appleby was tried on 95 counts. His convictions were quashed.[22] The combination of the joinder of 19 counts of financial impropriety and a retrial which lasted 22 months led to a successful appeal and no order for retrial in R v Wilson and Grimwade.[23]
In none of the above cases was it said that the joinder of counts did not form part of a series or were not of the same or similar character. The reasons for allowing the appeal was that the trials had miscarried due to complexity or length. Further, the prosecution ought to have foreseen what would happen and should not have proceeded with the trial which must have been envisaged.
Those are the rules governing such cases. But before the analysis of whether a conviction should stand come the questions of the legal validity of joinder. The first legal question therefore is whether the joined counts form a series.
There can be no joinder of counts in the one indictment unless they comprise a series of offences of the same or similar character. The courts have had no end of trouble in their interpretation of those words.
The formidable Dixon J seemed to have difficulty in coming to grips with the word “series”. In Packett he said,
The word ‘series’ is somewhat vague, but it connotes some connection between the crimes.[24]
Since then other judges have had no more comfort. In the Kray appeal the Court of Appeal had to decide whether counts of murder had been properly joined in one indictment together with counts of being accessories after the fact. There had been ten accused, one of whom had been acquitted. Widgery LJ said:
It may be true that the word ‘series’ is not wholly apt to describe less than three components, but so to limit its meaning in the present context would produce the perverse result that whereas three murders could be charged in the same indictment, two could not. The construction of the rule has not been restricted in this way in practice during the fifty years which have followed the passage of the Act and it is too late now to take a different view.[25]
These sentiments were approved by the House of Lords in Ludlow.[26] In Australia a definition continued to be elusive. In Sutton, Brennan J approved Lord Pearson’s observation in Ludlow ‘that both the law and the facts have been and should be taken into account in deciding whether offences are similar or dissimilar in character.’[27] Brennan J went on:
If the offences are similar in character they may constitute a series. ‘Series’ does not import a clear criterion for determining what charges may be joined in the same information. Perhaps little more can be said about its meaning than Dixon J said in Packett v R... namely that ‘it connotes some connection between the crimes’.[28]
The word “series” has to my mind a difference in meaning from the phrase “same or similar character”. The word imports a course or sequence of offences, part of a routine, and likely to be planned. The phrase seems to relate to offences which are matching and are of the same kind. Dawson J showed the relationship between the two in De Jesus.[29] The accused had been convicted of two counts of rape. The offences were alleged to have occurred at different times and in different places. There were two victims. Other offences of deprivation of liberty (two counts) and indecent assault (one count) were also on the indictment. They were alleged to have occurred before the rapes. The High Court allowed the appeal 3-2, the majority taking the view that because the evidence on one rape was inadmissible on the other, the counts ought not to have been joined. Dawson J said:
However, for two or more offences to constitute a series there must be a nexus or connection between them. This, I think, is something different from the express requirement in s 585 that the offences must be of the same or similar character...[A]s a matter of construction the requirement in my view refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance...
Similarity may also indicate a nexus, but similarity of that kind relates rather to the facts alleged by the prosecution to constitute the offences rather than to their legal characteristics...
[B]ut it is clear enough that by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a ‘series’ without straining the word beyond the meaning which it is reasonably capable of bearing.[30]
It is now well established that two events can constitute a “series”. The issue is well illustrated in Iongi. The accused was convicted on a two count indictment of rape in 1980 and indecent assault in 1992. It was the same victim who said she had been raped (count 1) and subjected to repeated sexual indignities until the indecent assault (count 2). The court of appeal held that the two counts were a series.[31]
Assume that the indictment complies with the rules of joinder that the counts are a series or are of the same or similar character. The parties will nevertheless still be in the hands of a judge where the defence says it will be unfairly prejudiced by joinder. The trial judge will be asked to exercise a discretion to order a stay of prejudicial counts or even those which are too trifling to be included.[32]
Sexual offences are treated with special care according to the judges. In De Jesus Gibbs CJ said:
Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard.[33]
Dawson J said:
But as a general rule sexual offences form a special class of offences which should be tried separately except where the evidence on one count is admissible on another count.[34]
In Hoch the accused had been convicted of three joined counts of indecent dealing with three separate boys on separate occasions. Two of the victims were brothers and one victim at least bore antipathy to the accused before the alleged offences. The High Court struck down the convictions and entered verdicts of acquittal. The professed reason was the real chance that the victims had concocted their stories. But as to the joinder of the counts, Brennan and Dawson JJ said in a joint judgment:
It does not necessarily follow that, because counts are properly joined in one indictment, the trial on each count should not be severed from the others. If the evidence admissible on each count is not admissible on the other counts and there is a consequent risk of impermissible prejudice to an accused in the conduct of a single trial on all counts – and there usually is such a risk in sexual cases – separate trials should be ordered.[35]
Why is it that some judges should have taken the view comparatively recently that there is a special risk of joinder in sexual cases? It certainly has not always been the accepted view. Recall what Lord Cross said in Boardman in 1974:
The attitude of the ordinary man to homosexuality has changed very much even since R v Sims [1946] KB 531 was decided and what was said on that subject in 1917 by Lord Sumner in Thomson v The King [1918] AC 221 at 235 – from which the view that homosexual offences form a class apart appears to stem – sounds nowadays like a voice from another world.[36]
Liddy[37] stands out as an exception. The prosecution case was that Mr Liddy, a magistrate, had subjected five young boys to years of sexual abuse “of a most depraved kind”.[38] Most of the acts were charged. The complainants, now men, also gave evidence of uncharged acts. The Court of Criminal Appeal found that the charged (and uncharged) acts were cross-admissible [39] and dismissed the appeal on that ground and many others.
Whence comes the recent view of the High Court justices? According to Mason CJ, Wilson and Gaudron JJ the conclusion that the victims in Hoch may have concocted their stories comes from “common sense and experience”. They use the phrase three times.[40] No doubt they were conscious of the words of Lord Hailsham in Boardman:
The rules of logic and common sense are not susceptible of exact codification when applied to the actual facts of life in its infinite variety.[41]
Brennan CJ quoted it with approval in BRS.[42]
At the time of writing it would seem that sexual offences are confirmed as a special category in which the presumption is against joinder at least where there are different victims at different times. That does not seem to be too new at least so far as heterosexual activity is concerned. As far back as 1918 the Victorian Full Court held that an indictment joining separate counts for a separate offence against different girls was not proper.[43]
The concern about joinder of sexual offences perhaps stems from the same experience and common sense of judges referred to in Hoch, or perhaps it is an over-compensation for Thompson and Sims, those voices from another world. Again, for some reason, there are any number of cases showing that an indictment alleging a number of sexual offences were improperly joined, but few which result in the same finding of other offences. Even counts of murder are joined with each other or with other offences, as will be seen.
There have been legislative alterations in Victoria. By amendments passed in 1997, Crimes Act 1958 ss 372(3AA) and (3AB) now provide:
(3AA) Despite sub-section (3) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together.
(3AB) The presumption created by sub-section (3AA) is not rebutted because evidence on one count is inadmissible on another count.
The Court of Appeal has considered the provision. In TJB the court held that a trial court retains a discretion to order separate trials under Crimes Act s 372. Callaway JA set out five considerations for the guidance of trial judges in exercising that discretion.[44] Nevertheless where evidence on sexual offences is cross-admissible, a court is unlikely to order severance.[45] R H McL[46] was a High Court appeal whose ground was that the Victorian Court of Appeal had imposed a wrong sentence for sexual indignities visited by a man on two stepdaughters. All the justices except Kirby J said as a starting point that the offences had been properly joined. Kirby J held that the sentences were wrongly passed but said nothing about the joinder.
Cross-admissibility is the term used to explain how the evidence is mutually admissible on counts joined on the same indictment. A good example is Cookson.[47] He was convicted of counts of stealing as a servant and of armed robbery. The prosecution case was that he stole $4,200 from his employer and that a two days later committed an armed robbery to reimburse his employer. The stealing provided a motive for the armed robbery.
As has been seen, the High Court has regularly struck down convictions where unfair prejudice flows from the joinder of counts in the one indictment. The one qualification is said to occur when evidence on the counts is cross-admissible. In Sutton, Brennan said:
Where that evidence is not admissible towards proof of his guilt on the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice.[48]
In De Jesus, Gibbs CJ held that the counts were wrongly joined ‘since the evidence on one count was inadmissible on the other...’[49]. Dawson J was more expansive:
...recognised instances occur where the [similar fact] evidence is relevant to prove intent or to disprove innocent association. Where evidence of the commission of one offence is, upon such a basis, admissible in proof of the commission of another, there will be nothing to be gained by directing separate trials because the same evidence would be admissible in each trial.[50]
An example of the cross-admissibility principle is to be found in GAE. The accused was charged with 28 joined counts of sexual misconduct against three victims. He was convicted on 18 counts. The Court of Appeal unanimously held the joinder to be proper because the evidence was cross-admissible.[51]
In Mayfield, Cox J, delivering the leading judgment of the Court of Criminal Appeal, said after examining High Court authority:
Where the evidence on the different counts is cross-admissible, so that the evidence relating to all counts would be admissible on a trial of any one of them, the accused will not be able to show any relevant prejudice or embarrassment.[52]
In my view Cox J overstated the law. As will be seen when the discretion is examined, a trial judge may find that notwithstanding cross-admissibility, justice requires severance and would sever because of incurable prejudice.
The joinder of charges other than sexual counts in one indictment has not generally excited courts because of the nature of the charges themselves. Even murder is in no special category.
It is now clear that provided the offences form a series or are of the same or similar character, counts of murder can be joined with other counts, even other murder counts. Kray in England has already been referred to. Messrs Wright and Haigh faced five joined counts of murder. The Full Court of Victoria found on appeal that there was the necessary nexus between the counts, and followed Kray.[53] In Demirok it was that a count of murder could be joined with other counts.[54] The appeal succeeded because the trial with his wife as co-accused resulted in a miscarriage of justice. In Bazley there were joined counts of conspiracy to murder, theft, and two counts of murder. On appeal against conviction the court held that the trial judge had been correct in refusing to sever counts.[55] In Bush the accused was charged with the attempted murder of his wife and the murder of her paramour. Both charges arose from the same incident. There was no submission at trial or on appeal that the counts were not properly joined.[56] In Von Einem [57] two counts of murder were joined but the report fails to show whether an application for severance was made. The infamous Truro murders resulted in seven counts being heard together with convictions on six of them.[58]
Two separate counts of murder were joined in McCarthy. The trial judge refused severance. The Court of Criminal Appeal found that the trial judge had not been wrong in his ruling but that the events as they unfolded at trial showed that ‘with the wisdom of hindsight that these two charges in the interests of justice should have been severed...’[59]
The application for the exercise of discretion does not necessarily rest on the nature of the counts, except perhaps for sexual counts, as has been seen.
The exercise of a judge’s discretion to order severance of joined counts in an indictment derives either from provisos to the legislation which enables joinder to be made or from the inherent or implied power to secure a fair trial. A trial judge is given the power by legislation to order that counts be tried separately if the accused would suffer prejudice (WA)[60] or prejudice or embarrassment (Vic and SA).[61] The test in NSW is whether the matters should be heard and determined separately in the interests of justice.[62] The position in Queensland is well analysed by Tucker.[63]
Reports of orders by a trial judge for severance of counts are necessarily rare. A trial judge will be expected to apply the principles set forth in the judgments of courts above him or her in the hierarchy.
The House of Lords in Christou[64] set out guidelines for the exercise by a trial judge of the discretion to order severance of counts. Lord Taylor of Gosforth CJ gave the leading judgment. He said:
...the statutory provisions undoubtedly give the trial judge a discretion. To hold that he must decide the question of severance in a particular way would be to fetter that statutory discretion.[65]
His Lordship then said:
...the essential criterion is the achievement of a fair resolution of the issues. That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are: - how discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together.[66]
His Lordship went on to say that experience shows that juries follow judge’s directions. The High Court put that proposition more precisely. In Gilbert, Gleeson CJ and Gummow J said:
The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.[67]
Appeal courts often express the sentiment that juries will do as they are told. Such a proposition is no more than speculation. The speculation probably has two bases. The first is that in a criminal justice system where a jury will decide whether an accused person is guilty judges cannot say that juries do not follow directions without undermining the whole system. The second is that juries considering joined counts will sometimes acquit of some. Appeal courts extrapolate that acquittals prove that juries follow directions, or at least the directions to give independent consideration to each count. But some empirical studies show that there is an increased likelihood of conviction if offences are joined rather than heard separately.[68]
The fact is that it is simply impossible to tell whether a judge’s direction has overcome the clear prejudice caused by a jury’s hearing evidence of an accused’s misdeeds on other occasions.
As for the observations in Christou that a trial judge in exercising his or her discretion that a consideration on whether a joint trial should be had can depend on the families of accused and victim is novel to say the least. Is it possible that an accused could ask for severance but the families and the victim be given locus standi to oppose the application? The proposition has only to be stated to be rejected.
I suspect that counts are joined in the interests of professed efficiency. Where there is a trial on joint counts over the objection of the accused, the trial judge’s ruling may be based on expediency rather than on a concern that a jury will be irretrievably prejudiced against an accused on hearing all the allegations of misdeeds. In a trial on a single count the policy of the law is to stop a jury from hearing of other charges, convictions or any form of bad character save in exceptional circumstances. The joinder of counts undermines that policy. Appeal courts regularly say in other than sexual cases that there was no injustice or unfair prejudice. The reasons are first, because the rules of joinder were complied with, and secondly because the jury would have done what the trial judge directed.
Compliance with the rules is not enough. In Demirok the Court of Criminal Appeal set aside convictions. The court conceded that the trial was correctly conducted but in the result inadmissible and highly prejudicial evidence was given.
...it is not satisfactory to say that, the rules governing trials having been observed, there has been no miscarriage of justice. To do so is to elevate the rules above the end which they are designed to produce.[69]
In Sutton, Deane J said:
It is the duty of the presiding judge at a criminal trial to set the essentials of justice above the strict rules of evidence if the strict application of the latter would operate unfairly against the accused.[70]
To my mind those remarks drip wisdom.
I suggest that the following principles apply to joinder of counts in the one indictment for trial:
| 1. | Joinder of counts in one indictment has the capacity to introduce evidence of a highly prejudicial character. The founding principle should be one offence, one trial. |
| 2. | Where the joinder is not of offences founded on the same facts or part of a series or of the same character, the counts should be severed. |
| 3. | Where joinder is objected to by the accused, the same principles of severance should apply as the High Court has held applicable in sexual cases. |
| 4. | A test for reception of evidence should be as for res gestae. |
| 5. | Where a trial proceeds with joined counts, the trial judge should give consideration to directing the jury on one count or group of counts and taking a verdict on that direction before proceeding to direct on the next count or group of counts. Such a course by a trial judge was approved in Mitchell.[71] |
[*] Member of the Victorian Bar.
[1]The document which initiates the indictable offences for trial. In Victoria the document for State offences is called the presentment: Crimes Act 1958 (Vic) s 351. In South Australia, the information: Criminal Law Consolidation Act 1935 (SA) s 275. In all other prosecutions in all Australian jurisdictions the document is called the indictment. In England and New Zealand it is an indictment.
[2] DPP v Merriman [1973] AC 584, 607.
[3] Montgomery v Stewart [1967] HCA 11; (1967) 116 CLR 220; Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 107 (Kirby J).
[4] R v Trotter (1982) 7 A Crim R 8, 16-18.
[5] [1937] HCA 77; (1937) 59 CLR 467, 486.
[6] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 107 (Kirby J).
[7] S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 284.
[8] R v Smith & Kirton (1990) 47 A Crim R 43 (NSWCCA).
[9] Rex v Brent [1918] ArgusLawRp 108; [1919] VLR 46 (FC); R v Bell [1962] VicRp 22; [1962] VR 135 (ruling of Lowe J).[]
[10] DPP v Boardman [1975] AC 421, 459. Approved in Sutton v R [1984] HCA 5; (1984) 152 CLR 528, 531(Gibbs CJ).
[11] Seymour F Harris, Principles of the Criminal Law (Stevens & Haynes, London, 1892) pp 228 and 357.
[12] Indictments Act, 1915, Schedule I, rule 3. The provision is now in Indictment Rules, r. 9.
[13] Crimes Act 1914 (Cth) s 4K(3); Criminal Code (Qld) s 567(2); Criminal Code (WA) s 585; Criminal Code (Tas) s 311(2); Criminal Code (NT) s 309(1); Criminal Procedure Act 1986 (NSW) s 29; Crimes Act 1958 (Vic) s 371 and Sixth Schedule Rule 2; Criminal Law Consolidation Act 1935 (SA) s 278; Crimes Act 1900 (ACT) s 434B.
[14] Criminal Code (Qld) s 567(1); Criminal Code (WA) s 585.
[15] cf. The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 575.
[16] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 620-621.
[17] R v Collins, ex parte Attorney-General [1996] 1 Qd R 631, 637.
[18] Ibid, 637-638.
[19] Brouillard v The Queen [1985] 1 SCR 39, 44.
[20] R v Smart [1983] VicRp 22; [1983] VR 265, 283.
[21] Ibid., 284.
[22] R v Appleby (1996) 88 A Crim R 456 (Vic CA).
[23] [1995] VicRp 11; [1995] 1 VR 163 (CCA).
[24] Packett v The King [1937] HCA 53; (1937) 58 CLR 190, 207.
[25] R v Kray and Others [1970] 1 QB 125,130.
[26] Ludlow v Metropolitan Police Commissioner [1971] AC 29, 38 (Lord Pearson).
[27] Ibid 39.
[28] Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528, 540-541.
[29] De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1.
[30] Ibid 9.
[31] R v Iongi (1993) 69 A Crim R 441 (Qld CA).
[32] R v Ambrose (1973) 57 Cr App R 538, 540 (Lawton LJ); R v Siugzdinis (1984) 32 NTR 1, 12 (Muirhead J).
[33] Ibid 3.
[34] Ibid 10.
[35] Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 298.
[36] DPP v Boardman [1975] AC 421, 458.
[37] R v Liddy (2002) 81 SASR 19.
[38] Ibid. 146 [537] (Gray J).
[39] Ibid., 136-140 [494]-[506] (Mullighan J) with whom the other judges agreed
[40] Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 297.
[41] DPP v Boardman [1975] AC 421,452.
[42] BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 285.
[43] Rex v Brent [1919] VR 46, applied R v Bell [1962] VicRp 22; [1962] VR 135 (ruling of Lowe J).
[44] R v TJB [1998] 4 VR 621, 630-631.
[45] R v GAE [2000] VSCA 18; (2000) 1 VR 198.
[46] R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452.
[47] Cookson v The Queen (1989) 45 A Crim R 121 (WA CCA).
[48] Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528,542.
[49] De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1, 3.
[50] Ibid 10.
[51] R v GAE [2000] VSCA 18; (2000) 1 VR 198. (Winneke P would have allowed the appeal on another ground).
[52] R v Mayfield (1995) 63 SASR 576.
[53] R v Wright and Haigh [1983] VicRp 6; [1983] VR 65.
[54] R v Demirok [1976] VicRp 19; [1976] VR 244.
[55] R v Bazley (1986) 21 A Crim R 19 (Vic CCA).
[56] Bush v The Queen (1993) 43 FCR 416.
[57] R v Von Einem (1991) 55 SASR 199.
[58] Miller v The Queen (1980) 55 ALJR 23.
[59] R v McCarthy (1984) 14 A Crim R 155, 161 (NSW CCA).
[60] Criminal Code (WA) s 585.
[61] Crimes Act 1958 (Vic) s 372(3); Criminal Law Consolidation Act 1935 (SA) s 278(2).
[62] Criminal Procedure Act 1986 (NSW) s 29 (3).
[63] Philip Tucker, ‘Joinder of Criminal Counts in Queensland – Principles, Policy and Conflict’ (1998) 17 Australian Bar Review 239.
[64] Reg. v Christou [1997] AC 117.
[65] Ibid 128.
[66] Ibid 129. Followed: R v KRA [1999] VSCA 157; [1999] 2 VR 708 at 715 [20].
[67] Gilbert v The Queen (2000) 201 CLR 414, 420.
[68] James Scott Farrin, ‘Rethinking Criminal Joinder: An Empirical Analysis of the Empirical Research and its Implications for Justice’ (1989) 52 Law and Contemporary Problems 325; Sally Lloyd-Bostock, ‘The Effects on Juries of Hearing About the Defendant’s Previous Record: A Simulation Study’ [2000] Crim LR 734; Penney Lewis, ‘Similar Facts and Similar Allegations in Delayed Criminal Prosecutions of Child Sexual Abuse’ [2004] Crim LR 39.
[69] R v Demirok [1976] VicRp 19; [1976] VR 244, 255-256.
[70] Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528, 558.
[71] R v Mitchell [1971] VicRp 5; [1971] VR 46.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/DeakinLawRw/2004/8.html