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2.4 - Severance of Charges

  1. The initial decision of whether to join multiple charges in a charge-sheet or indictment is a decision for the prosecuting authorities (R v Demirok [1976] VR 244; R v TJB [1998] 4 VR 621).
  2. Multiple charges against an accused and multiple accused named on the one charge-sheet or indictment must be tried or heard together unless the court orders a separate trial or hearing (CPA 2009 s56, s170).
  3. If the judge orders separate trials or hearings, the prosecution may usually elect which proceeding will be determined first. The judge has a residual power to order that certain proceedings must be heard first in order to avoid a miscarriage of justice or an abuse of process (CPA 2009 s58, s193, s195; R v Brown [1990] VR 820; R v Cox (Ruling No 5) [2005] VSC 262).

    Power to Order Separate Trials or Hearings

  4. Where the prosecution has joined several offences on a charge-sheet or indictment, the judge has a discretion to order a separate trial or hearing in respect of one or more charges where:
    1. the case of an accused may be prejudiced because the accused is charged with more than one offence in the same charge-sheet or indictment;
    2. a trial or hearing with a co-accused would prejudice the fair trial of the accused; or
    3. for any other reason it is desirable to do so (CPA 2009 s58, s193).
  5. An order for separate trials or hearings may be made before or during a trial and may be made on the judge’s own motion (CPA 2009 s58, s193, s337).
  6. Meeting one or more of the three grounds listed above is a precondition to ordering order separate trials or hearings. Even where one or more conditions are met, the court retains a true discretion and should consider any countervailing factors. This is different to some other legislation where the term "may" can mean that, where the preconditions for the exercise of the power are met, the court must exercise the relevant power (R v TJB [1998] 4 VR 621; R v GAS [1998] 3 VR 862; GBF v R [2010] VSCA 135; c.f. Mitchell v R (1996) 184 CLR 333; [1996] HCA 45).
  7. The discretion to order separate trials or hearings must be exercised judicially. It is not necessary to show that there is some "special feature" beyond one of the preconditions before the discretion may be exercised in favour of ordering separate trials (De Jesus v R [1986] HCA 65; R v Demirok [1976] VR 244; c.f. Ludlow v Metropolitan Police Commissioner [1971] AC 29).

    Exercise of the Discretion

  8. The judge or magistrate must consider:
  9. Whilst the following principles are of general application to judges and magistrates, some principles may be of particular relevance to judges conducting jury trials.
  10. Exercising the discretion to sever charges on a charge-sheet or indictment requires a judge or magistrate to strike a balance between the interests of the accused in avoiding unnecessary prejudice due to one jury hearing evidence relating to other charges and the public interest in the efficient allocation of judicial resources, consistency of verdicts, convenience of witnesses and finality of litigation (R v Reid [1999] 2 VR 605; [1999] VSCA 98; R v Demirok [1976] VR 244; Ludlow v Metropolitan Police Commissioner [1971] AC 29; R v PHW [2004] VSC 411; R v Oliver (1984) 57 ALR 543).
  11. Despite references in some cases to the need to balance considerations of prejudice and convenience, it is wrong for a judge to apply a test of whether ‘prejudice far outweighs convenience’. Such an approach erroneously inverts the recognised power of a judge to allow joint trials where convenience far outweighs the risk of prejudice (Baini v R (2011) 33 VR 252; [2011] VSCA 298; KRM v R (2001) 206 CLR 221; [2001] HCA 11 per McHugh J at [38]).
  12. The judge may consider the complexity of the issues the jury would need to analyse. In some cases, the evidence may be so complex that the jury cannot be expected to understand and evaluate the issues in the case. In other cases, there may be a high degree of overlap in the relevant information, or the conduct on each occasion may be similar. The judge or magistrate should also consider whether the accused may be unfairly prejudiced in his or her defence to certain charges due to the joinder of other charges (R v AB & Baker (Ruling No 1) [2008] VSC 106; R v Smart [1983] 1 VR 265; R v Reid [1999] 2 VR 605; [1999] VSCA 98; R v D [1999] VSCA 148; R v Brown [1990] VR 820).
  13. The accused is likely to suffer greater prejudice as the number of charges on the indictment increases. The burden of charging the jury on the facts relevant to the elements of each offence and the complexity of any "separate consideration" directions will increase substantially. While there is no fixed maximum number of charges permitted on a charge-sheet or indictment, the court should carefully consider whether there are so many charges that prejudice to the accused is inevitable (R v Smart [1983] 1 VR 265; R v King [1897] 1 QB 214; Durovic v R (1994) 4 Tas R 113; R v PHW [2004] VSC 411).
  14. The court must order separate trials even in the absence of an application if that is necessary in order to avoid a miscarriage of justice (R v Reid [1999] 2 VR 605; [1999] VSCA 98; R v Demirok [1976] VR 244).
  15. In deciding how to exercise the discretion to order separate trials the judge should consider whether any prejudice to the accused due to the joinder of charges can be cured by appropriate directions. The judge should take into account that juries can usually be trusted to follow a judge’s directions on separate consideration and the use of evidence (R v KRA [1999] 2 VR 708; [1999] VSCA 157; R v GAE (2000) 1 VR 198; [2000] VSCA 18; R v Cogley [1999] 3 VR 366; [1999] VSCA 123; R v TJB [1998] 4 VR 621; Sutton v R (1984) 152 CLR 528; [1984] HCA 5; R v Bright (2014) 45 VR 744; [2014] VSCA 341, [51]; Huynh & Huynh v The Queen [2020] VSCA 220, [44]).
  16. Provided the offences are related offences, the Crown may join offences where the accused bears an onus of proof with offences where the accused does not bear an onus of proof. Such combination of offences is permissible and will not be enough by itself to justify ordering separate trials, even though it may place pressure on the accused to give evidence (R v McLean (2000) 2 VR 118; [2000] VSCA 217).
  17. Similarly, the mere fact that the cases on some charges are weaker or stronger than other charges will not be enough to justify an order for separate trials (R v GAS [1998] 3 VR 862).
  18. While the Crown case as alleged must be assumed to be true for the purpose of assessing whether joinder is permissible, the court when deciding severance is entitled to take into account the strength of the evidence which establishes the connection between the offences. Weak or tenuous evidence in support of the existence of a connection may provide a foundation for ordering severance even if joinder is otherwise justified (DPP v Preston (Ruling No 2) [2015] VSC 396, [27]).
  19. One common consideration when deciding the question of severance is whether there is cross-admissibility of the evidence between the different charges. While the question of cross-admissibility is important, it is not decisive. Where the evidence is not cross-admissibility, the judge will need to consider whether the risk of prejudice can be addressed by directions (R v Papamitrou (2004) 7 VR 375; [2004] VSCA 12 at [27]; GBF v R [2010] VSCA 135 at [54]).
  20. In addition, there may be cases where the evidence is not cross-admissible, but there are common witnesses. In such cases, one consideration will be whether cross-examination of common witnesses on credit issues can be conducted without creating a misleading picture (Nicholls v R [2016] VSCA 250 at [102]).
  21. Where the issue of severance is affected by questions about the cross-admissibility of evidence, the judge must determine those admissibility questions before making a ruling on severance. Otherwise there is a risk of inconsistency if the ultimate ruling about cross-admissibility is different to assumptions the judge made for the purpose of the severance application (R v Bright (2014) 45 VR 744; [2014] VSCA 341, [45]).
  22. Where charges are joined on one indictment and the evidence for some or all charges is not cross-admissible, the judge will usually need to warn the jury that each charge may only be proven by the evidence admissible on that charge and not to use evidence that is only admissible on a different charge (R v Cogley [1999] 3 VR 366; [1999] VSCA 123). See Separate Consideration in the Victorian Criminal Charge Book.
  23. In cases which are likely to provoke an emotional reaction in the jury, there may be a greater need to sever charges where evidence is not cross-admissible. For example, in R v Penrose (Ruling No 1) [2015] VSC 786, Lasry J ordered severance where the accused was charged with recklessly causing serious injury and then manslaughter of an 11 month old child. The two incidents occurred several days apart and, in the context of a child homicide case, there was a risk that the jury would impermissibly allow its findings on the recklessly causing injury charge to affect their verdict on the manslaughter charge (at [18]-[19]).
  24. The judge should give reasons for the decision to sever or refuse to sever a charge from an indictment. While the reasons can often be ascertained from the course of discussions between counsel and the court, a formal ruling will clarify the weight the judge ultimately gives to the various considerations discussed and facilitates appellate review of the decision (Bui & Hargrave v R [2011] VSCA 404; Baini v R (2011) 33 VR 252; [2011] VSCA 298; R v Bright (2014) 45 VR 744; [2014] VSCA 341, [48]-[49]).

    Multiple Accused

  25. The interests of justice normally require that all co-accused are dealt with in the one trial. A joint trial will reduce the risk of inconsistent verdicts. Prejudice associated with inadmissible material can usually be cured by appropriate directions (Webb & Hay v R (1994) 181 CLR 41; [1994] HCA 30; R v Gibb & McKenzie [1983] 2 VR 155; R v Demirok [1976] VR 244; R v Oliver (1984) 57 ALR 543).
  26. The general rule in favour of joint trials may be displaced where this course will deny an accused a fair trial (R v Oliver (1984) 57 ALR 543; R v Patsalis [1999] NSWSC 649; R v Cox & Ors [2005] VSC 255).
  27. One example of cases where this general rule will be displaced is where there will be significant evidence which implicates an accused, but is irrelevant and highly prejudicial in the trial of the other accused. The argument for a separate trial will be much stronger where the trial judge finds that the prejudice cannot be cured by judicial direction (R v Gibb & McKenzie [1983] 2 VR 155; R v Jones & Waghorn (1991) 55 A Crim R 159).
  28. There are two main forms of improper prejudice in this context. First, the evidence may be prejudicial in the traditional sense, such as evidence of bad character or other forms of collateral prejudice. Second, the evidence may improperly bolster a weak case in such a way that the jury would be unable to give effect to separate consideration directions (Young & Ors v R [2015] VSCA 265).
  29. The presumption in favour of joint trials is not rebutted simply because one or more accused intends to implicate a co-accused (a "cut-throat defence"). The judge must determine whether a joint trial could cause unfair prejudice to each accused. Such prejudice is likely to be uncommon (R v Ignjatic, Unreported, NSW CCA 6 July 1993; R v Patsalis [1999] NSWSC 649).
  30. Where an accused will rely on a "cut-throat defence", a joint trial will allow the jury to consider all the relevant facts. The evidence at separate trials is likely to be incomplete in relation to each accused and the jury would receive an artificial version of events (R v Fernando & Ors [1999] NSWCCA 66; R v Beaven (1952) 69 WN 140; R v Gibb & McKenzie [1983] 2 VR 155; R v Grondkowski [1946] KB 369).
  31. A joint trial where one accused intends to implicate a co-accused may be inappropriate where the evidence which will be led is so prejudicial that a fair trial for all accused would be impossible (R v Gibb & McKenzie [1983] 2 VR 155; R v Grondkowski [1946] KB 369; R v Patsalis [1999] NSWSC 649).
  32. Where several accused are charged as co-conspirators, they should not be tried together if the evidence against one or more is substantially different to the evidence against the others. Such a situation creates a real risk that the jury may convict one of the accused on inadmissible evidence by failing to give effect to a separate consideration direction (R v Darby (1982) 148 CLR 668; [1982] HCA 32; R v Brown [1990] VR 820).

    Homicide

  33. Although courts have previously been reluctant to allow joinder of other offences with murder charges, this view is no longer prevalent. In some cases it is possible for the same jury to determine homicide and non-homicide offences (R v AB & Baker (Ruling No 1) [2008] VSC 106; c.f. R v Pollitt [1991] 1 VR 299).
  34. The court must consider whether separate trials are necessary in order to ensure that the issues for the jury are manageable. A judge will often need to give numerous and complex directions in a murder trial and inclusion of other charges risks placing an intolerable burden on the jury which creates a risk of an unfair trial for the accused (R v Debs & Roberts [2005] VSCA 66; R v Pollitt [1991] 1 VR 299).

    Sexual Offences

  35. Section 194 of the CPA 2009 creates a presumption of joinder for charges of "sexual offences":[1]

    (2) Despite section 193 and any rule of law to the contrary (other than the Charter of Human Rights and Responsibilities), if in accordance with this Act 2 or more charges for sexual offences are joined in the same indictment, it is presumed that those charges are to be tried together.

    (3) The presumption created by subsection (2) is not rebutted merely because evidence on one charge is inadmissible on another charge.

  36. Section 194 of the Act reflects the former s372(3AA) of the Crimes Act 1958. Section 372(3AA) was introduced to change the previous practice in Victoria that trials for sexual offences against different complainants must be heard separately unless the complainant’s evidence was cross-admissible (R v KRA [1999] 2 VR 708; [1999] VSCA 157; R v Hakeem [2006] VSC 265; R v Papamitrou (2004) 7 VR 375; [2004] VSCA 12; De Jesus v R [1986] HCA 65; Sutton v R (1984) 152 CLR 528; [1984] HCA 5; R v TJB [1998] 4 VR 621).[2]
  37. Section 194 creates a prima facie presumption that sexual offences may be tried together when they have been properly joined in the one indictment (R v D [1999] VSCA 148; R v TJB [1998] 4 VR 621).
  38. Where evidence is cross-admissible, there will usually be no point in ordering separate trials (De Jesus v R [1986] HCA 65; R v Bright (2014) 45 VR 744; [2014] VSCA 341).
  39. For this reason, a judge must generally determine issues of admissibility before making any decision on the question of severance. Questions of severance should not be determined on the basis of global assumptions about admissibility, as this can produce difficulties if the ultimate rulings vary from the assumptions made for the purpose of determining severance (R v Bright (2014) 45 VR 744; [2014] VSCA 341, [45]; De Jesus v R [1986] HCA 65).
  40. However, s194 does not dictate that sexual offences must be heard together in all cases, even where the evidence is not cross-admissible. Cross-admissibility continues to be a powerful factor that influences whether court should order separate trials. Directions on separate consideration are likely to be less effective when the jury must consider the evidence of a large number of separate complainants and where the evidence appears to be probative (R v Papamitrou (2004) 7 VR 375; [2004] VSCA 12; R v Buckley (2004) 10 VR 215; [2004] VSCA 185; R v TJB [1998] 4 VR 621; R v GAE (2000) 1 VR 198; [2000] VSCA 18).
  41. Evidence of one charge may be admissible on a second charge even if evidence of the second charge is not admissible on the first charge. In this situation, evidence on the charges may still be treated as cross-admissible and justify a court refusing to order separate trials (R v Renzella, Unreported, VSCA, 7 August 1997).
  42. Previous decisions in this area can only provide limited guidance. The judge in each case must consider where the interests of justice lie (R v Papamitrou (2004) 7 VR 375; [2004] VSCA 12).
  43. Evidence in sexual offence cases is particularly likely to arouse prejudice and directions to the jury designed to overcome those prejudices are likely to be less effective than usual. Section 194 does not ignore that reality and the court must continue to consider those factors when determining severance (R v TJB [1998] 4 VR 621; De Jesus v R [1986] HCA 65).
  44. In R v TJB [1998] 4 VR 621, Callaway JA set out five principles to provide guidance on the exercise of the discretion to sever an indictment:

    1. A presentment[3] 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. In that respect sexual offences are no different from other offences.

    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 and again is not peculiar to trials of sexual offences. See, for example, R. v Smart especially at 283 and 289.

    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 55; [1994] HCA 30.

    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.[4]

  45. A corollary to the fifth principle from R v TJB (above) is that where propensity evidence is not probative, there will usually be less risk of the jury relying upon it improperly when suitable directions are given. The risk arises where the evidence is ruled inadmissible on one charge due to the prejudicial effect of the evidence and the jury may be unable to understand why they are required to disregard the evidence (R v TJB [1998] 4 VR 621).
  46. If there is limited cross-admissibility of evidence between charges, the judge should consider whether the directions on the permissible and impermissible uses of the evidence would be comprehensible and whether the jury would be able to apply the directions. Generally, directions on separate consideration of charges against different complainants are sufficient, as there is no reason to think that such directions are not followed. However, in some cases there will be an unacceptable risk that the jury will use the evidence in an impermissible manner and the judge must address this risk by making appropriate orders for severance (GBF v R [2010] VSCA 135; DR v R [2011] VSCA 440).

    Conspiracy and Substantive Offences

  47. A charge of conspiracy to commit an offence should not be tried together with a charge alleging the commission of the principal offence unless the court considers that it is in the interests of justice to try the charges together (CPA 2009 s195).
  48. The burden is on the prosecution to show that it is in the interests of justice for a substantive offence and a related conspiracy to be heard together (R v Pollitt [1991] 1 VR 299).
  49. It is generally undesirable for an accused to be charged with both conspiracy to commit an offence and the substantive offence where the criminality of the accused can be adequately represented in a single charge. The prosecution must ensure that the accused does not face the prospect of an unnecessarily complex trial due to inappropriate charges on the indictment (R v Hoar (1981) 148 CLR 32; [1981] HCA 67; R v El-Kotob (2002) 4 VR 546; [2002] VSCA 109; R v Pollitt [1991] 1 VR 299; R v Moore [1988] 1 Qd R 252).
  50. The judge should take into account that it is difficult for a jury to properly apply directions in relation to statements by co-conspirators and avoid the hearsay use of statements when considering substantive offences (R v Moore [1988] 1 Qd R 252. See also Ahern v R (1988) 165 CLR 87; [1988] HCA 39; R v Pektas [1989] VR 239).
  51. The court should also be very cautious before allowing a charge of conspiracy to commit an offence and attempting to commit that offence to be tried together. While this is not proscribed by s195, the same principles apply (Krakouer v R (1998) 194 CLR 202; [1998] HCA 43).

Footnotes:

[1] – Sexual offence is defined in s3 of the Act to mean:

(a) an offence under Subdivision (8A), (8B), (8C), (8D) or (8EAA) of Division 1 of Part 1 of the Crimes Act 1958 or under any corresponding previous enactment; or

(b) an attempt to commit an offence referred to in paragraph (a); or

(c) an assault with intent to commit an offence referred to in paragraph (a).

In s197, sexual offence is defined to also include offences listed in clause 1 of schedule 1 of the Sentencing Act 1991 ("serious sexual offender offences").

[2] – Section 194 only applies to criminal trials. There is no equivalent provision for summary hearings (CPA 2009 s58).

[3] – Prior to the CPA 2009, proceedings in the County and Supreme courts were almost always commenced by "presentment". Proceedings are now commenced by indictment.

[4] - For information on when evidence of other discreditable acts may be led even though it is not relied on as being tendency or coincidence evidence, see Other Forms of Other Misconduct Evidence in the Victorian Criminal Charge Book.

Last updated: 30 August 2021

See Also

Chapter 2 – Commencement of Proceedings

2.1 - Charge-Sheet and Indictment

2.2 - Duplicity

2.3 - Joinder of Charges

2.5 - Summary and Indictable Offences

2.6 - Time Limits

2.7 - Penalty and offence information