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2.3 - Joinder of Charges

  1. A charge-sheet or indictment may contain charges for more than one offence where all offences are "related offences" (CPA 2009, Schedule 1, clause 5(1)).
  2. In addition, a single charge may allege that the offence was committed by multiple accused. This gives rise to separate charges against each named accused that shall be determined in the one proceeding unless the charges are severed (CPA 2009 Schedule 1, clause 6).
  3. In a criminal trial, the prosecution must specify all charges and all accused in the one indictment (the "one indictment, one jury" rule). In contrast, while a single charge-sheet may allege charges against multiple accused, the prosecution must file an individual charge-sheet for each accused (R v Landy [1943] VLR 73; CPA 2009 s56).
  4. All offences that are related offences should be included in the one charge-sheet or indictment. Courts may exercise their power to prevent an abuse of process where the prosecution seeks to bring proceedings for offences that should have been included in an earlier charge-sheet or indictment (R v Harris (No 2) [1990] VR 305; Connelly v DPP [1964] AC 1254).
  5. It is not appropriate to include additional (rather than alternative) charges in an indictment where, as a matter of substance, the charges are alternatives or are based on the same facts. The judge should require the prosecution to amend the indictment to state that the offences are pleaded in the alternative or order a stay of proceedings for the additional charges (R v Mai & Tran (1992) 26 NSWLR 371; Pereira v DPP [1988] HCA 57; R v Simonidis [1983] 2 Qd R 54).
  6. In Victoria, there is a long-standing practice not to join other charges to a charge of murder. Part of the basis for this practice is that ‘murder is too serious a matter to be complicated by having alternative counts inserted in the indictment’. This practice may be departed from where there are cogent reasons to do so, such as where the non-murder offences are closely connected to the murder charges (Fleming v The Queen [2021] VSCA 206, [91]-[101]).

    Meaning of "Related Offences"

  7. "Related offences" are defined as:

    Offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character (CPA 2009 s3).

  8. The first ‘or’ in the definition operates disjunctively. The definition therefore proposes two alternate limbs:
  9. The first limb directs attention to the facts which found the offences, whereas the second directs attention to the character of the offences (Fleming v The Queen [2021] VSCA 206, [58]).
  10. Offences are ‘founded on the same facts’ focusses attention on the material facts required to prove the offences and not the evidence sought to be adduced to prove those material facts (Fleming v The Queen [2021] VSCA 206, [90]).
  11. Clause 5(1) and the definition of "related offences" should be given a broad interpretation and should not be constrained by inflexible principles. The purpose of the rule is to promote flexibility and to overcome rigidity that once existed in criminal pleadings (R v Renzella, Unreported, VSCA, 7 August 1997; R v Gregory (No 1) [2009] VSC 358).
  12. The words of the definition are not technical and should be given their ordinary meaning (Nicholls v R [2016] VSCA 250 at [55]).
  13. The purpose of clause 5(1) is to allow all charges that can properly and conveniently be dealt with together to be joined on a single charge-sheet or indictment. The clause also allows a single magistrate or jury to make findings on the whole of the facts alleged against the accused (R v McLean (2000) 2 VR 118; [2000] VSCA 217; R v Kray [1970] 1 QB 125; R v Collins; ex parte Attorney-General [1996] 1 Qd R 631; [1994] QCA 467).
  14. It is not possible to state a precise formula for when two or more offences will be "related offences". The broad definition has a flexible operation that allows it to be applied to the facts of each case (R v McLean (2000) 2 VR 118; [2000] VSCA 217; R v Renzella, Unreported, VSCA, 7 August 1997).
  15. The test is designed to be easily satisfied, with the risk of injustice addressed by the discretion to order separate trials (Nicholls v R [2016] VSCA 250 at [59]; De Jesus v R [1986] HCA 65).
  16. Courts have used certain phrases to test whether two or more offences are "related offences":
  17. Offences may also be related if the evidence on one charge would be admissible in the trial of another (Dragojlovic v The Queen (2013) 40 VR 71, [196]; c.f. Fleming v The Queen [2021] VSCA 206, [89]-[90]).
  18. It is not appropriate to concentrate solely on the form of the charge-sheet or indictment, as that may not sufficiently reveal the similarities between the charges. The court must consider legal similarities between the offences as well as common facts the prosecution alleged, even if the defence disputes that evidence (R v Smart [1983] 1 VR 265; R v McDonald (1979) 21 SASR 198; Sutton v R (1984) 152 CLR 528; [1984] HCA 5; R v Renzella, Unreported, VSCA, 7 August 1997; R v Gregory (No 1) [2009] VSC 358; Ludlow v Metropolitan Police Commissioner [1971] AC 29).
  19. However, the mere existence of legal similarities between the different offences is not sufficient, if the commission of the offences in their factual settings are different (De Jesus v The Queen [1986] HCA 65; Fleming v The Queen [2021] VSCA 206, [67]).
  20. Because questions of joinder and severance must be determined at the start of proceedings, it is necessary to analyse the issues on the basis of the Crown case as alleged and ask whether, if the Crown case is proved, then there would be the necessary nexus (DPP v Preston (Ruling No 2) [2015] VSC 396, [26]). Offences may be part of a series if the earlier offences provide the context necessary to understand the accused’s conduct in relation to the later offences. Offences are more likely to be related when evidence is cross-admissible between certain charges (R v Spina [2005] VSCA 319).
  21. Offences may be part of a series if the earlier offences provide the context necessary to understand the accused’s conduct in relation to the later offences. Offences are more likely to be related when evidence is cross-admissible between certain charges (R v Spina [2005] VSCA 319; c.f. Fleming v The Queen [2021] VSCA 206, [71]).
  22. Charges may have a common factual origin where there are ‘primary charges’ and ‘subsidiary charges’, such that the subsidiary charges could not have been alleged but for the facts giving rise to the primary charges (R v Barrell & Wilson (1979) 69 Cr App R 250, 252).
  23. It is not necessary for the offences to be committed in an identical fashion or at the same time before they may be described as a series. Existence of a common factual basis does not require obvious factual similarities or even close similarity (R v Reid [1999] 2 VR 605; [1999] VSCA 98; R v McLean (2000) 2 VR 118; [2000] VSCA 217; R v Cogley [1999] 3 VR 366; [1999] VSCA 123; Ludlow v Metropolitan Police Commissioner [1971] AC 29; R v Kray [1970] 1 QB 125; R v Barrell & Wilson (1979) 69 Cr App R 250; R v Gregory (No 1) [2009] VSC 358 at [13]).
  24. In cases of financial fraud, it will be sufficient if the alleged offences have a “common genesis or are otherwise linked and associated by commonality of parties or transactions” (R v Heinze [2005] VSCA 124 at [48]).
  25. Other sources of commonality include a common modus operandi, a common target of the offending or a combination of things which, individually, may not create a ‘nexus’ but do so together (DPP v Preston (Ruling No 2) [2015] VSC 396, [24]).
  26. All offences joined on a charge-sheet or indictment must be related to one another. It is not permissible to join offences which are only related by a common, third offence (R v Collins; ex parte Attorney-General [1996] 1 Qd R 631; [1994] QCA 467; R v McLean (2000) 2 VR 118; [2000] VSCA 217).[1]
  27. A difference in time may mean that offences cease to be part of a series (R v Gregory (No 1) [2009] VSC 358).
  28. A charge-sheet or indictment may contain both a course of conduct charge (within the meaning of CPA 2009, Schedule 1, clause 4A) and an ordinary charge of the offence covered by the course of conduct charge as an alternative (CPA 2009, Schedule 1, clause 5(3)). The alleged date of commission of the relevant offence in the alternative charge must be within the period to which the course of conduct relates.
  29. However, a charge-sheet or indictment must not contain both a course of conduct charge and a charge for an offence against s47A of the Crimes Act 1958 (persistent sexual abuse of a child under the age of 16) (CPA 2009, Schedule 1, clause 5(5)).

Footnotes:

[1] - Tadgell JA in R v McLean (2000) 2 VR 118; [2000] VSCA 217 explained at [26] that:

where three charges (call them x, y and z) are joined, and joinder of x and y and of y and z is clearly valid, the joinder of x and z can be justified only if those two could stand had y not been included.

Last updated: 14 October 2021

See Also

Chapter 2 – Commencement of Proceedings

2.1 - Charge-Sheet and Indictment

2.2 - Duplicity

2.4 - Severance of Charges

2.5 - Summary and Indictable Offences

2.6 - Time Limits

2.7 - Penalty and offence information