1.8 - Separate Consideration

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Multiple Accused

  1. If two or more accused stand trial together, the judge must direct the jury that they are to consider the case against each accused separately (R v Harbach (1973) 6 SASR 427; R v Nessel (1980) 5 A Crim R 374; R v Minuzzo and Williams [1984] VR 417; R v Mitchell 5/4/95 NSW CCA; Nicoletti v R 4/11/97 WA CCA).
  2. If evidence is given which is not admissible against each accused,[1] the judge must also instruct the jury:
  3. The judge should usually tell the jury that a certain item of evidence is inadmissible against a particular accused at the time that evidence is tendered. However, whether or not such a direction is given at that stage, it must always be given in the judge’s summing up (R v Nessel (1980) 5 A Crim R 374; R v Towle (1955) 72 WN (NSW) 338).
  4. In the judge’s summing up, he or she must specify which evidence the jury may consider in relation to each accused, and which evidence is inadmissible against each accused. It is insufficient simply to rely on a direction that the jury are to consider the case against each accused separately (R v Towle (1955) 72 WN (NSW) 338; R v Minuzzo and Williams [1984] VR 417; R v Mitchell 5/4/95 NSW CCA; Nicoletti v R 4/11/97 WA CCA. See Judge’s Summing Up on Evidence and Issues for further information).

    Multiple Counts

  5. If the presentment contains multiple counts, the judge must direct the jury that they have to consider each of the counts separately (R v PMT (2003) 8 VR 50; MFA v R (2002) 213 CLR 606; KRM v R (2001) 206 CLR 221; R v TJB [1998] 4 VR 621; R v Robertson [1998] 4 VR 30; R v J (No.2) [1998] 3 VR 602).
  6. Such a direction should be given even if all of the evidence is admissible in relation to each count,[2] because a jury still needs to reach separate verdicts on the counts even if, in reaching those verdicts, it considers the totality of the evidence (R v Mitchell 5/4/95 NSW CCA).
  7. If evidence is given which is not admissible in relation to each count,[3] the judge must also instruct the jury:
  8. It is also customary to instruct the jury that:
  9. These directions will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part (MFA v R (2002) 213 CLR 606).
  10. The jury should not be told that each count “must be given the same ultimate determination because you will ultimately be asked… your verdict in regard to each count”. Such a direction is likely to be confusing to a jury (R v Robertson [1998] 4 VR 30; R v Ev Costa 2/4/96 Vic CA).
  11. In the judge’s summing up, he or she must carefully explain which evidence relates to which count, and which evidence is inadmissible on each count. It is insufficient simply to rely on a direction that the jury are to consider each count separately (T v R (1996) 86 A Crim R 293; R v Mooseek (1991) 56 A Crim R 36. See Judge’s Summing Up on Evidence and Issues for further information).
  12. Judges must not direct the jury that if they doubt the truthfulness or reliability of the complainant’s [4] evidence in relation to one charge, then that doubt must be taken into account in their assessment of the truthfulness or reliability of the complainant’s evidence generally or in relation to other charges. This does not limit the ability of a party to make such an argument, or the obligation of the judge to refer to how the parties put their case (Jury Directions Act 2015 ss44F-44G, as amended in 2017; see also R v PMT (2003) 8 VR 50; contra R v Markuleski (2001) 42 NSWLR 82).

    Related Matters

    Tendency Warning

  13. At common law, it was considered prudent to warn the jury against “tendency reasoning” in cases involving multiple counts, as well as the “separate consideration” direction (see R v J (No.2) [1998] 3 VR 602; R v TJB [1998] 4 VR 621).
  14. Under the Jury Directions Act 2015, evidence relevant only to other counts, or admissible on a limited, contextual, basis, will usually fall within paragraph (c) of the definition of “other misconduct evidence” (see Jury Directions Act 2015 s26).
  15. Where evidence of other counts is “other misconduct evidence”, the judge does not need to give a warning against tendency reasoning, unless the direction is requested (see Jury Directions Act 2015 ss15, 29, 30). See Tendency Evidence.

    Notes

[1] If the evidence against one accused is not admissible against a second accused, and this creates a risk that the second accused will be impermissibly prejudiced, the judge may need to consider ordering separate trials (see, e.g., R v Hauser (1982) 6 A Crim R 68; Webb v R (1994) 181 CLR 41).

[2] If evidence which is admissible in relation to one count is admissible in relation to another count as “similar fact evidence”, an appropriate direction as to the permissible and impermissible uses of such evidence will be needed (see Tendency Evidence and Coincidence Evidence).

[3] If evidence which is admissible in relation to one count is not admissible in relation to another count, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see, e.g., R v TJB [1998] 4 VR 621. See also Crimes Act s372).

[4] Jury Directions Act 2015 s44F uses ‘victim’ instead of ‘complainant’. We have retained ‘complainant’ to maintain consistency across the Charge Book.

Last updated: 2 October 2017

In This Section

1.8.1 – Charge: Separate Consideration - Multiple Accused

1.8.2 – Charge: Separate Consideration - Multiple Charges

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings