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Abuse of process

Double jeopardy and other bars to re-litigation of issues

Duplicity

Judicially directed acquittal at trial

Mental impairment and unfitness to be tried

Separate trials of counts against one accused

Separate trials of one accused from another

> Abuse of process

version 24 July 2008

A prosecution which is an abuse of process to be stayed. Walton v Gardiner (1993) 177 CLR 378; R v NRC (No 2) [2001] VSCA 210; R v Swingler [1996] 1 VR 257; DM Paciocco (1991) 15 Crim LJ 315.

Possibly where without consent it is sought to hold a trial without committal proceedings: Barton v R (1980) 147 CLR 75.

Unnecessary exposure of accused to excessive trials arising out of same circumstances, see further below this page.

Prolonged delay usually not an abuse: Jago v District Court (1989) 168 CLR 23; R v Clarkson [1987] VR 962; R v Boehm [1990] VR 494; Edebone v Allen [1991] 2 VR 659.

Improper motive: Miller v Ryan [1980] 1 NSWLR 93 (proceeding to avoid costs). Very strong evidence of ulterior purpose would be required: Williams v Spautz (1992) 174 CLR 509.

Conspiracy instead of or together with available substantive charges: R v Mills [1986] VR 179 but only as reported in (1985) 17 A Crim R 214.
Presentment on identical or similar charges to those which have been subject of Nolle Prosequi might be an abuse in some circumstances: R v Swingler [1996] 1 VR 257; contra R v Doyle (1987) 30 A Crim R 379.

Proceeding upon a count held by the trial judge duplicitous in sense that it alleged two different offences defined by law: R v His Honour Judge Hassett; ex parte DPP (1994) 76 A Crim R 19.

Proceeding upon lesser offence to avoid time bar: Saraswati v R (1991) 172 CLR 1.

Where there is in existence an extradition treaty which is knowingly circumvented by the prosecuting authorities (principle of speciality): considered in R v Phong [2005] VSCA 149.

Where an offence or an element of it has been procured by unlawful conduct on the part of the law enforcement officers: Ridgeway v R (1995) 184 CLR 19.

Entrapment amounting to an affront to the public conscience: R v Vuckov (1986) 22 A Crim R 10 (not so held on facts); R v Hsing (1991) 25 NSWLR 685.

Destruction of evidence: Holmden v Bitar (1987) 47 SASR 509.

Proceeding unfairly upon a matter before a related matter: R v Brown [1990] VR 820.

Where conviction would be inconsistent with an acquittal already recorded of an accused in another case: R v Catalano (1992) 61 A Crim R 323.

Proceeding upon unsupportable case: R v Smith [1995] 1 VR 10.

Proceeding where inability for defence cross-examination of important witness: considered in R v NRC (No 2) [2001] VSCA 210.

Unfair publicity: R v Von Einem (1991) 52 A Crim R 373 (unsuccessful).

> Double jeopardy and other bars to re-litigation of issues

version 24 July 2008

There are various bars which can operate at a criminal court against the re-litigation of issues already concluded by conviction or acquittal.

(1) Plea in bar - autrefois acquit or autrefois convict - prevents proceeding upon an alleged offence where there has already been a verdict for an offence the elements of which were identical or in which all of the elements were wholly included: Charter of Human Rights and Responsibilities Act s.26; Pearce v R (1998) 194 CLR 610; R v Mason [2006] VSCA 55; R v Langdon [2004] VSCA 205, (2004) 11 VR 1; R v Weeding [1959] VR 298; Reardon v Baker [1987] VR 887. Some have expressed the view the underlying principle for this is res judicata. Plea in bar also prevents proceeding where there has been a verdict on an offence which is practically the same: Pearce v R; R v HMcL [1998] VSCA 61; R v Sessions [1998] 2 VR 304; R v Weeding. Indeed, it may well be that, in given circumstances, a conviction on a lesser offence will create a bar to subsequent prosecution on a more serious offence; this will occur where the subsequent prosecution for more serious offence amounts to prosecution for an aggravated form of the offence earlier prosecuted, but relies for its proof on the same evidential fact: DPP v Collins [2004] VSCA 179. There is no plea in bar where there has been a dismissal not on the merits: Davern v Messell (1984) 155 CLR 21; Howard v Pacholli [1973] VR 833. There is no plea in bar where a charge or count has been subject of dismissal or directed acquittal for duplicity: R v VN [2006] VSCA 111, (2006) 162 A Crim R 195. It seems that in summary proceedings, no plea in bar is possible but the same principle is effected as stay for abuse of process.

(2) Stay of proceeding for abuse of process, especially where it would be harsh or oppressive to pursue an offence arising out of some matters previously canvassed in a trial for another offence: R v Carroll (2002) 213 CLR 635; R v Clarkson [1987] VR 962. Also where there has already been a result for an offence the elements of which were practically the same. Formerly this would have been only as plea in bar but Pearce v R appears to to place it in this category; in Victoria, there is uncertainty whether it can still be put as plea in bar; DPP v Collins [2004] VSCA 179 seems to indicate so, but R v Langdon [2004] VSCA 205 not so.

(3) Interpretation of Legislation Act s.51 extends to prevent additional conviction under another law being recorded in respect of the same act or omission, the idea being that punishment, to which the section refers, includes conviction: R v Filipovic [2008] VSCA 14; R v Ngo [2007] VSCA 240; R v Novak [2003] VSCA 46; R v Sessions [1998] 2 VR 304. See further site notes sentencing.

Issue estoppel is the wider idea, known to civil law, that a legal or factual point necessarily determined as part of earlier court proceeding can be re-litigated. Except to the extent that the bars above might be seen by some as examples of it, issue estoppel does not have any application in criminal law: Rogers v R (1994) 181 CLR 251 (per Mason CJ, Deane and Gaudron JJ). However, at least sometimes abuse of process applies in such a situation, as for example with the previously excluded the prosecution evidence in Rogers. Rogers must be taken to have confined the operation of the principles as to abuse of process - insofar as those principles are to be applied to debar re-litigation of previous decisions of courts - to instances where a determination of fact or law has been made by a previous court and where such determination was a final one; the principles it enunciates cannot therefore apply where there was neither a determination of fact or law, nor was it a final determination, because the decision of the judge to disallow the admission evidence was made in the course of proceedings in which the decision in the case was overturned on appeal: R v Edwards [1997] VICSC 21, [1998] 2 VR 354; R v Lewis [2000] VSCA 14 . There are also principles directed to ensuring the incontrovertible character of judicial decisions which prevent re-litigating a precisely same point already decided by the same judge at the same trial, and perhaps go further. It has been suggested there may also be a principle of true estoppel resulting from the failure to raise some issue which could reasonably have been raised in earlier proceedings but that principle, if it be one, is to be treated with caution: Rogers per Deane and Gaudron JJ.

> Duplicity

version 24 November 2008

On a contest, it is the defect of duplicity for a count to allege more than one occurrence of an offence. The rule against duplicity rests on various considerations. Some are to do with the orderly administration of criminal justice: 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 also rests upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. See S v R (1989) 168 CLR 266, especially per Gaudron and McHugh JJ. Another consideration is avoidance of the risk that individual jurors identify different occasions as constituting an offence so that there is no unanimity in verdict: S v R, per Dawson J.

The duplicity may be overt, that is to be seen from the words of the count: Walsh v Tattersall (1996) 188 CLR 77; Chugg v Pacific Dunlop Ltd [1988] VR 411; Byrne v Baker [1964] VR 443. There is no overt duplicity where a single offence is defined in the alternative, for instance the provisions as interpreted in Hedberg v Woodhall (1913) 15 CLR 531 and R v Ginies [1972] VR 394. In determining whether a statutory provision creates a single offence in the alternative, or separate offences, it is a guide towards the latter if separate penalties are provided: R v His Honour Judge Hassett (1994) 76 A Crim R 1.

The duplicity may be latent, that is, seen only by reference to the alleged facts; sometimes the terminology is "concealed" instead of "latent". It occurs where alleged facts supporting the count have more than one specific occurrence of the offence alleged in the count: S v R (1989) 168 CLR 266; Johnson v Miller (1937) 59 CLR 467; R v Rigoli [2006] VSCA 1; R v Suckling [1998] VSCA 60; R v Trotter (1982) 7 A Crim R 8. Sometimes it is called the defect of of uncertainty. It is not latent duplicity merely because there are specific occurrences of uncertain dates: R v Robinson [1996] 1 VR 402. There is no latent duplicity where a single offence defined in the alternative is put in the alternative without being made overtly so, as for instance often with common law murder and manslaughter: cases cited in R v Walsh [2002] VSCA 98 (though where the proof of an essential ingredient of the crime charged is put in the alternative, the jury must be directed of the need for unanimity on that proof: R v Klamo [2008] VSCA 75). It is not latent duplicity to allege as a single offence one activity even though it may involve more than one act eg the attempted murder alleged to lie in discrete acts of shooting in close sequence in R v Goldman [2007] VSCA 25 or the sexual activity in R v Yankovski [2007] VSCA 259. It is not latent duplicity to allege a single offence where the offence definition extends to continuing offending being acts on separate occasions eg the drug trafficking provisions in R v Komljenovic [2006] VSCA 136, R v Lao [2002] VSCA 157, R v Giretti (1986) 24 A Crim R 112; obtaining by deception or theft as in DPP v Stark [2006] VSCA 61. There is no duplicity in alleging a single occurrence of an offence by alternative factual scenarios of different occasion: R v Senese [2004] VSCA 136.

Duplicity at trial is overcome if the prosecution makes an election: Johnson v Miller (1937) 59 CLR 467. This requires identifying the specific alleged occurrence of the offence which is relied upon. With latent duplicity, the election must identify the occasion, transaction or occurrence to which the count refers and distinguish it from other like occasions, transactions or occurrences indifferently answering the description contained in the complaint: Johnson v Miller per Dixon J; DPP v Judge Lewis [1997] 1 VR 39 (tie the evidence to one of the instances and make it incapable of equal application to each of the other instances): R v Best [1998] 4 VR 603. For some years a troublesome problem was whether simply nominating a "first occasion" avoided latent duplicity: see R v NVD [2007] VSCA 230; DPP v Judge Lewis. By R v DWB [2008] VSCA 223, the technique of nominating a "first occasion" will not overcome the difficulties identified in S v R unless there is some way that the specific act that constitutes the offence charged in any particular count can be identified and distinguished from all other similar conduct.

The remedy for refusal or failure to elect a specific offence depends on the circumstances. It may include stay of count for abuse of process, quashing of count, exclusion of evidence, directed acquittal, discharge of jury or on appeal, quashing of conviction.

On a plea of guilty, a duplicitous count is permitted; the practice is known as a rolled up or lumped count: R v Shannon [2005] VSCA 143.

"Duplicity" is sometimes used in another sense namely whether a count has another count duplicating it. In R v Warburton [2006] VSC 446, an issue arose in advance of jury trial whether counts were "duplicitous" in this sense (and held on review not so). Issues of this kind really are ones of forestalling or dealing with double jeopardy (see above).

> Judicially directed acquittal at trial

version 24 July 2008

Upon closure of the prosecution case, each accused is asked what course the defence proposes to follow: Crimes Act s.418. Practice varies whether this enquiry is in presence of jury. The options are to call defence evidence, not to call defence evidence or to submit no case to answer ie that there be judicially directed acquittal. A submission of no case to answer is heard in the absence of the jury. With multiple accused, a submission of no case to answer is not allowed until it is seen that all the evidence that other accused may wish to call has been received. If it will enable this position to be reached, accused may be permitted to defer electing whether or not to call evidence: R v Faure and Corrigan [1978] VR 246; R v Webster [1974] VR 457.

In principle, there seems no reason why an issue of no-case to answer cannot be raised, even by judge, up until verdict.

On the test for no-case, see Doney v R (1990) 171 CLR 207 and Chidiac v R (1991) 171 CLR 432.

The court in Doney confirmed the basic obligation of a trial judge to direct a jury to acquit after the close of the prosecution case where there is an absence of evidence. The equivalent obligation extends to the Magistrates' Court and other criminal law courts without jury: May v O’Sullivan (1955) 92 CLR 654.

A notion current some time ago was that a trial judge could direct a jury to acquit after the close of the prosecution case on a rather vague ground of that though there was sufficient evidence, conviction would be unsafe in the sense of leaving a lurking doubt. The existence of such an unsafeness ground stands rejected in Victoria: Attorney-General's Reference [1983] 2 VR 410 and elsewhere. The High Court in Doney confirmed that there is no such judicial power.

A slightly different notion current sometime ago was that a trial judge had power to direct an acquittal where the evidence had a tenuous character or an inherent weakness or vagueness. In Doney, the High Court ruled that there is no such judicial power. The relevant words of the court are: "If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."

The court in Doney recognised an alternative route by which a judicially-directed acquittal continues to be obtainable in at least some of the circumstances where it would have been obtainable if there were a "tenuousness" ground. According to the court, it may happen "although it should be but rarely" that evidence heard by a jury is of such poor quality that it is to be withdrawn from the jury, with the possible consequence there is an absence of evidence, requiring the direction of an acquittal.

Another course relevant in this context occasionally taken is a "Prasad invitation". This is a judicial invitation to jury to acquit an accused notwithstanding that there is evidence upon which the accused could lawfully be convicted, because the evidence is so lacking in weight and reliability that the jury could not safely convict on it: R v Prasad (1979) 23 SASR 161; mentioned in R v Huynh [2006] VSCA 213. Ordinarily there will be brief directions to jury pointing to the law, difficulties in prosecution case and leaving the options of unanimous acquittal or that the case continue.

Sometimes an acquittal is judicially directed when, before a jury has been empanelled, the Crown announces that no evidence will be led. This procedure has a statutory basis in Victoria: Crimes Act s.391. It also sometimes occurs that the Crown, after leading some evidence, consents to the direction of an acquittal after some plea negotiation or encountering unexpected difficulties.ion of the Crown

> Mental impairment and unfitness to be tried as in Victoria

version 24 July 2008

An issue which can arise is whether an accused by time of trial or plea of guilty hearing is fit to be tried: Crimes (Mental Impairment and Unfitness to be Tried) Act; R v Langley [2008] VSCA 81. There is then trial before jury solely as to the issue of fitness to plead. Section 6 provides:
(1) A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired, the person is or, at some time during the trial, will be—
(a) unable to understand the nature of the charge; or
(b) unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or
(c) unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or
(d) unable to follow the course of the trial; or
(e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f) unable to give instructions to his or her legal practitioner.
(2) A person is not unfit to stand trial only because he or she is suffering from memory loss.

In the event of verdict of fit to plead, the case proceeds as normally, before fresh jury if there is still contest. A verdict of unfit to be tried is no sense a finding of defence. It gives the judge powers depending upon the circumstances either to postpone trial of the allegations or proceed to special hearing of them before a fresh jury. A judge has power to vacate an order that there be an investigation of fitness to stand trial if circumstances change before a jury is empanelled: R v Demicoli [2006] VSCA 69. Prior to this enactment, if found unfit by jury, the result used to be indefinite detention "at the governor’s pleasure": some old cases of note are R v Judge Martin [1973] VR 339; R v Khallouf [1981] VR 360; R v Presser [1958] VR 45; R v Allen (1993) 66 A Crim R 376; Kesavarajah v R (1994) 181 CLR 230; see also Eastman v R (2000) 203 CLR 1 .

Mental impairment is a limited defence: Crimes (Mental Impairment and Unfitness to be Tried) Act. The time in issue is the time of the alleged offence. It is a limited defence because if found, there is still to be sentencing, though various special sentencing options are provided. There is, before the empanelment of jury, judicial power to to direct a verdict of not guilty by reason of mental impairment where the prosecution and the defence agree that the proposed evidence establishes the defence: Crimes (Mental Impairment and Unfitness to be Tried) Act s.21(4); R v Whelan [2006] VSC 319. For mental impairment, the Act extends to summary hearings at the Magistrates' Court. Prior to this enactment, the nearest comparable defence was known as " insanity". The defence if successfully taken used to result in indefinite detention "at the governor’s pleasure". Given the severity of the result, the defence was rarely taken except to murder. A High Court case of note (on appeal from Tasmanian law) is Hawkins v R (1994) 174 CLR 500.

On trial or special hearing, intellectual disability and mental illness can matter also as to whether the acts of the person were voluntary and whether there was a required intent. The relationship between the insanity defence and these other issues was considered by the High Court in R v Falconer (1990) 171 CLR 30.

Intellectual disability and mental illness are also important considerations in ordinary sentencing, see further site notes sentencing.

C R Williams article [2000] MULR 28.

> Separate trials of counts against one accused especially as in Victoria

version 24 July 2008

The document which contains the charges for a County Court or Supreme Court criminal case is known as the presentment. A trial can be of only one presentment but more than one charge (known as a "count") can be upon a presentment where the law permits it. The law is provided by the Crimes Act and some cases.

Joinder of counts against one accused within a single presentment document

CRIMES ACT s.371. Joinder of charges in the same presentment
Subject to the provisions of the rules under this Act charges for more than one indictable offence may be joined in the same presentment.

CRIMES ACT SIXTH SCHEDULE RULE 2. Joining of charges in one presentment
Charges for any offences may be joined in the same presentment if those charges are founded on the same facts or form or are part of a series of offences of the same or a similar character.

The cardinal criterion for the joinder of counts is a link or other nexus that is sufficient to give effect to the underlying policy that the Rules were designed to implement. Nexus, as it is understood in this context, is or includes "a feature of similarity which in all the circumstances of the case enables the offences to be described as a series". The policy is to enable the joinder of charges which may be "properly and conveniently" dealt with together: R v McLean [2000] VSCA 217, (2000) 2 VR 118. The charges will be founded on the same facts if for instance the subsidiary charge could not have been alleged but for the facts that gave rise for the primary charge: R v Barrell (1979) 69 Cr App R 250. Whether a series of offences is of same or similar character depends upon regard to law and the facts. It is not necessary that the evidence relating to one charge be admissible upon another charge: R v Papamitrou [2004] VSCA 12, (2004) 7 VR 375; R v Cogley [1999] VSCA 123, [1999] 3 VR 366; R v Wright [1983] 1 VR 65. It is enough if they have, for example, a common genesis or, on some other basis, may fairly be treated for the purposes of the trial as linked or associated, rather than separate or discrete: R v McLean.

The issue is to be determined by an examination of the presentment in light of the evidence or anticipated evidence: R v Smart [1983] VR 265. There is not to be overly narrow approach: R v Renzella [1997] VICSC 37. Complaint that counts have been included in a presentment to impermissible extent are uncommon. Successful complaint would ordinarily result in prosecution filing over separate presentments, but in face of prosecution intransigence, remedy would be judicial quashing of the presentment.

Judicial discretion to order separation (severance) of trials of counts against one accused

Where counts are properly joined in the one presentment document, there remains a judicial discretion to order separate trials of counts. The test is different to that in the Sixth Schedule which permits joinder in the same presentment document. Thus it not uncommonly occurs that a court finds joinder in the same presentment document proper but nevertheless in exercise of the judicial discretion orders separate trials. The judicial discretion is provided by Crimes Act s.372(3) which states:
Where before trial or at any stage of a trial the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in a presentment the court may order a separate trial of any count or counts of such presentment.

On the judicial discretion to order separate trials, see R v TJB [1998] 4 VR 621 per Callaway JA. "1. A presentment should always be severed where that is both desirable and practicable in order to ensure a fair trial. It is for defence counsel to persuade the judge that that is so..... 2. One aspect of a fair trial is the taking of reasonable steps to prevent a jury from misusing evidence. That is not limited to propensity evidence... 3. It is usually to be assumed that the jury will comply with any directions they are given by the judge. A fair-minded lay observer takes that very factor into account in considering whether a trial is fair: cf. Webb v R (1994) 181 CLR 41 at p.55. 4. There are nevertheless cases where the risk of prejudice is unacceptable. It will often be found that that is so in the case of offences of an unnatural character or offences that arouse strong emotions or excite revulsion. 5. There is also a greater risk that a direction will be ineffectual if evidence in relation to one complainant is probative in relation to another but either the Crown does not rely on it for that purpose or the judge rules that it is inadmissible because of prejudice." See also R v Renzella [1997] VICSC 37.

The cross-admissibility of evidence of complainants is in most cases a powerful (although not necessarily dominant) factor influencing the exercise of discretion under s.372 so as to refuse separate trials: R v CHS [2006] VSCA 19, (2006) 159 A Crim R 560; R v Papamitrou [2004] VSCA 12, (2004) 7 VR 375; R v Buckley [2004] VSCA 185. One instance of cross-admissibility is as propensity evidence under Crimes Act s.398A: see further notes 3.

Depending on the sort of case, and not infrequently in cases of commercial fraud, it is enough for joint trial that offences or groups of offences have a common genesis or are otherwise linked and associated by commonality of parties or transactions: R v Heinze [2005] VSCA 124; R v McLean [2000] VSCA 217, (2000) 2 VR 118.

It is not necessarily reason for separate trial that there is a mix of reverse onus and normal onus counts: McLean.

One reason for grant of separate trial may be excessive complexity from number and nature of counts: R v Verma (1987) 30 A Crim R 441; R v Smart [1983] 1 VR 265; R v Clark [1962] VR 659.

Another reason is for conspiracy and substantive offences:
CRIMES ACT s.372 (3A)
Where a presentment contains a count of conspiracy to commit an offence and another count alleging the commission of that offence, the court shall, unless it is of the opinion that to try those counts together would be in the interests of justice, order that the count of conspiracy shall be tried separately from the other count, and the prosecution may elect which count shall be tried first.

See also R v Hoar (1981) 148 CLR 32.

For alleged sex offences with separate victims, there is additional provision. At one time, separate trials were usually granted for these cases where sought, except where the evidence in respect of one alleged victim was admissible in respect of another alleged victim: Sutton v R (1984) 152 CLR 528; De Jesus v R (1986) 61 ALJR 1; Hoch v R (1988) 165 CLR 292. Amendments introduced these provisions in 1998:

CRIMES ACT s.372 (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.
CRIMES ACT s.372 (3AB)
The presumption created by sub-section (3AA) is not rebutted merely because evidence on one count is inadmissible on another count.
CRIMES ACT s.372 (3AC) In sub-section (3AA) "sexual offence" means--
(a) an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I or under any corresponding previous enactment or an attempt to commit any such offence or an assault with intent to commit any such offence; or
(b) an offence to which clause 1 of Schedule 1 to the Sentencing Act 1991 applies.

The leading case on these sub-sections is R v TJB [1998] 4 VR 621. The applicant's stepdaughter, son and daughter each alleged sexual offences were committed upon them. Their evidence was not mutually admissible. The applicant was refused separate trials in relation to each alleged victim. The Court stated that sub-section (3AB) simply introduces a new element into the exercise of discretion for separate trials in sexual cases. Where the evidence on one count is inadmissible upon another, if there is a reason due to the prejudice to the accused in sexual offences, coupled with a doubt about misuse of the evidence, separate trials are to be ordered where sought. The mischief sought to be addressed by the amendments was the practice which had developed whereby severance was almost automatically granted. See also R v GAE [2000] VSCA 18, (2000) 1 VR 198; R v KRA [1999] VSCA 157, [1999] 2 VR 708.

See also David Ross "Joinder of Counts against One Accused" [2004] Deakin Law Review

> Separate trials of one accused from another especially as in Victoria

version 24 July 2008

There must be separate trials if the prosecution has made the accused subject of separate presentment documents: R v Scott Ct Crim App Vic 2 June 1987; R v Landy [1943] VLR 73. A State presentment and Commonwealth indictment though may proceed jointly provided they are drawn and signed as a single document: R v Nicola [1987] VR 1040.

Joinder of more than one accused within a single presentment document
is permitted situations which include:

1. the accused are alleged to be principal and abettor or accessory before an offence: common law;
2. the accused are alleged to be abettors or accessories before an offence: Crimes Act s.363;
3. the accused are alleged to be principal and accessory after the fact: Crimes Act s.325;
4. the accused are alleged to have acted in concert: R v Brown [1924] VLR 491;
5. the accused are alleged with reference to the same theft of having at different times or at the same time handled all or any of the stolen goods: Crimes Act s.93;
6. wherever the matters constituting individual alleged offences of accused are so related in time or by other factors that the interests of justice are best served by their being tried together: Assim following longstanding common law. Accused allegedly acting separately but, as the product of one conspiracy is one example: R v Ditroia and Tucci [1981] VR 247. A contrary illustration was provided in Assim. The court said "...it would be obviously irregular to charge two men in separate counts of the same indictment with burglary simply and solely because they had purely by coincidence separately broken into the same house on the same night at different times."

Any persistence of the prosecution with a presentment joining accused in circumstances not permitted by law should result in quashing the presentment or an order for stay.

If the prosecution wishes to join accused within a single presentment, a question arises whether the counts should be joint or separate. To begin with, each offence must be subject of a separate count: Crimes Act, Presentment Rule 3(2); R v Scalia [1971] VR 200. A single offence may, however, have multiple participants. Multiple participants in a single offence may be joined in a single count and ordinarily in practice are so joined. At common law multiple participants in a single offence are those who act in concert in its commission (each is regarded as a principal), a principal offender and an aider and abettor, and a principal offender and an accessory before the fact: R v Lowrey and King (No 2) [1972] VR 560. A principal offender and an accessory after the fact are, however, viewed as committing separate and different offences: an exception is the Drugs, Poisons and Controlled Substances Act s.80. For offences under the Crimes Act, s.323 might be thought to eliminate the need for particularisation of the mode of participation of those joined in a single count. In King v R (1986) 161 CLR 423, the High Court indicated however "that wherever a non-principal offender is presented, sufficient particulars should be included to reveal the mode of participation alleged". Dawson J. (with whom Wilson and Brennan JJ. agreed) acknowledged nevertheless that "...no doubt there will be cases in which the degree of participation is not known so that it is appropriate to charge them all as principals". It occasionally arises that the prosecution knows insufficient to specify whether the accused allegedly have participated in a joint offence or committed separate offences. For instance, a person surrounded by a crowd or group may be able to give only a sketchy account of attack by identifiable surrounding individuals and there may be no other evidence. In King it is accepted that a joint count is permissible in such circumstances.

Judicial discretion to order severance of trials of one accused from another

The existence of a discretion to order severance of trials of accused has been long accepted by the cases though it lacks statutory basis: R v Downey [1910] VLR 361; R v Alexander and McKenzie [2002] VSCA 183, (2002) 6 VR 53; R v Debs and Roberts [2005] VSCA 66; R v Vollmer [1996] 1 VR 95.

An application for severance, which need not necessarily be made before plea, is to be determined upon the material then before the court which ordinarily will be the depositions and the attached exhibits: R v Demirok [1976] 244 at 251-2. If not initially successful, the application may be renewed whenever fresh circumstances emerging in the course of the trial so justify.

Some factors supporting an application for judicial severance

1. Evidence admissible against a co accused but inadmissible and prejudicial against the applicant: R v Guthrie and Nuttal [2006] VSCA 192; R v Murphy [2004] VSCA 23; R v Jones and Waghorn (1991) 55 A Crim R 159; R v Demirok [1976] VR 244. Given that the jury may be warned against using this kind of inadmissible evidence these cases have suggested this factor to be weak, cf R v Lam [2008] VSCA 109. The High Court has stated that the factor would have special force in conspiracy cases: R v Darby (1982) 148 CLR 668. Another example is similar fact evidence against co-accused inadmissible and prejudicial against applicant such as held in the circumstances of Alexander and McKenzie should have caused separate trial .
2. Expectation of a defence to be offered by a co-accused which is antagonistic to the applicant. Examples are the giving of implicatory evidence against the applicant: R v Teitler [1959] VR 321, and the giving of propensity evidence against the applicant: R v Lowrey and King (No 3) [1972] VR 939, on appeal [1974] AC 85; R v Darrington and McGauley [1980] VR 353; R v Gibb and McKenzie [1983] 2 VR 155. Given that a jury may be warned against misuse, the factor has been said to be weak: Gibb and McKenzie at 164.
3. Susceptibility of applicant to an attack upon character within Crimes Act s.399 if giving evidence against co-accused: R v Ditroia and Tucci [1981] VR 247.
4. Co-accused notoriously of prior conviction or subject to overt special security arrangements: R v Callaghan [1966] VR 17;
5. Expectation that accused has evidence exculpatory of the applicant which would be given upon separate trial: Demirok at 253.
6. Relative seriousness of the allegations against the applicant: Demirok at 253; Gibb and McKenzie at 162.
7. Undue complexity or length of a joint trial: R v Clark [1962] VR 657.
8. In a conspiracy case, significant difference between the evidence admissible against the applicant and against a co-accused: Darby at 678.

Some factors opposing an application for judicial severance

1. Significant inconvenience to be caused in terms of court time and public expense: R v Demirok [1976] VR 244; R v Ditroia and Tucci [1981] VR 247.
2. Joint participation: R v Guthrie and Nuttal [2006] VSCA 192; Demirok at 252; R v Ditroia and Tucci [1981] VR 247 (only in exceptional cases that accused persons charged with joint or related offences arising from the one transaction or series of transactions will be permitted to stand trial separately).
3. The prospect of inconsistent verdicts upon separate trials: Demirok at 254; Ditroia and Tucci at 250.
4. Inconvenience to witnesses: Demirok at 254.

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page author
Don Just barrister
of Victorian Bar
Melbourne, Victoria, Australia

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