Multiple charges

Gibbs CJ (would grant special leave but dismiss the appeal)

1. This is an application for special leave to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of South Australia dismissing the applicant's appeal from his conviction on eight counts of sexual offences - one of attempted rape and seven of rape as defined in the Criminal Law Consolidation Act 1935 (S.A.), as amended.

2. The first count in the information charged that the applicant on 1 August 1981 at Queenstown attempted to have oral sexual intercourse with one L.K. without her consent; the second, third and fourth counts charged that the applicant on 6 September 1981 at Woodville South had oral sexual intercourse, vaginal sexual intercourse and anal sexual intercourse respectively, with one V.A.H. without her consent; and the fifth, sixth, seventh and eighth counts charged that the applicant on 16 October 1981 at Queenstown had vaginal sexual intercourse, anal sexual intercourse, oral sexual intercourse and vaginal intercourse respectively, with one D.M.T. without her consent. At the trial, counsel for the applicant submitted that the second, third and fourth counts should be tried separately from the first count and the fifth to the eighth counts. He conceded that the charge on the first count was properly joined with the charges in the fifth to the eighth counts, although in the Court of Criminal Appeal, and before us, it was sought to submit an argument contrary to that concession Section 278(1) of the Criminal Law Consolidation Act gives power to join charges which are founded on the same facts, or form or are part of a series of offences of the same or a similar character, and s. 278(2) gives the court a discretionary power to order a separate trial of any one or more offences charged in an information. Before us it was accepted by counsel for the prosecution that where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. That was the view taken by the majority of the House of Lords in Director of Public Prosecutions v. Boardman (1975) AC 421, at pp 442, 447, 459 and it is a view consonant with justice, for, as Lord Cross of Chelsea said in Director of Public Prosecutions v. Boardman (1975) AC, at p 459 , to let in inadmissible evidence by trying the charges together would be to pay no more than lip service to the rule which excludes evidence of similar facts. The learned trial judge, Mitchell J., rejected the application for separate trials. She said that the similarities between the circumstances deposed to by the three victims of the offences "were so striking that it should be left to the jury to decide whether, upon identification to its satisfaction of the accused as the person who committed one set of rapes, it was satisfied that he must have committed the other set of rapes and must have been guilty of the attempted rape". In other words, she held that the evidence relating to any one of the charges was admissible in considering the other charges

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13. … In my opinion the present case is very near to the borderline. Nevertheless, viewing all the circumstances together, I do not consider that it has been established that the experienced learned trial judge, and the experienced members of the Court of Criminal Appeal, were wrong in regarding the undoubtedly close similarities as sufficiently striking to render the evidence on each charge admissible on every other charge. The summing-up in which the learned trial judge carefully explained to the jury the use to which the evidence might be put was not, and could not have been, the subject of objection. There was ample evidence which, if accepted, justified the conviction of the applicant on each count. For these reasons I have reached the conclusion that the judgment of the Court of Criminal Appeal should not be disturbed. However, I share a similar concern to that expressed by Lord Wilberforce in Director of Public Prosecutions v. Boardman (1975) AC, at p 445 : "But I confess to some fear that the case, if regarded as an example, may be setting the standard of 'striking similarity' too low."

Murphy J (would grant special leave but dismiss the appeal)

7. The question raised here is different from that in Perry v. The Queen [1982] HCA 75; (1982) 150 CLR 580 . There, challenged "similar fact" evidence was tendered to show that offences were committed, the defence contending that the evidence did not prove an offence by anyone. This Court held certain evidence inadmissible because it was not (in the light of all the evidence) of sufficient probative force to be relied upon to establish guilt of the offences charged. Here if the girls' evidence of the attacks is accepted, and it was not challenged, the offences charged were committed in each case by someone. The question is whether in each case the evidence of the other attacks is admissible to establish that they were all committed by one person, the accused. The principles stated in Perry are nevertheless applicable analogously. I adhere to what I said there.

Brennan J (would grant special leave but dismiss the appeal)

5. When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted. There may be an exceptional case where countervailing factors appear but I do not presently foresee them. As Lord Cross of Chelsea observed in Director of Public Prosecutions v. Boardman (1975) AC 421, at p 459 , so long as the general rule excluding similar fact evidence is maintained "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 all the charges together". It would be misleading for a judge to require some further "special feature of the case" - the criterion adopted by Lord Pearson in Ludlow v. Metropolitan Police Commissioner (1971) AC, at p 41 - before giving a direction for separate trials. The purpose of provisions such as s. 278 is to avoid the technicalities and rigid rules of criminal pleading and procedure, but not to impair the administration of criminal justice. Irvine C.J. pointed out in R. v. Brent [1919] VicLawRp 6; (1919) VLR 46, at pp 52-53 with respect to the corresponding Victorian provision, that it did not "intend to introduce any fundamental alteration in the general rule that the tribunal to determine the guilt or innocence of a person charged should not be affected by the evidence given in relation to another charge - certainly not the evidence given by another person in relation to another charge". The price of dispensing with the technicalities and rigid rules of criminal pleading and procedure is the imposition upon the trial judge of the onerous function of directing the course of proceedings to ensure that justice is properly administered. To that end he is given a discretion to order separate trials. Where the evidence admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the sound exercise of the discretion generally (if not universally) requires a direction for separate trials (cf. per Lord Hailsham of St. Marylebone in Boardman (1975) AC, at p 447 ; Novac (1976) 65 CrAppR 107, at p 111 ).

6. Usually, there is no risk of impermissible prejudice arising from the conduct of a single trial upon an indictment containing more than one count where the evidence relating to the accused's implication in an offence charged in one count is admissible in proof of his guilt of the offence or offences charged in the other count or counts. The admissibility of the evidence relating to one count upon a trial for another count is thus a question of importance affecting both the exercise of the discretion under s. 278(2) and, in the event of a trial on multiple counts, on the direction given to the jury relating to the way in which they may use the evidence tendered in proof of each count at the trial.

7. In the present case, Mitchell J. declined to direct a separate trial for the offences charged in counts 2, 3 and 4, holding that the evidence implicating the accused in the commission of a set of offences against the one complainant was admissible in proof of his guilt of the offences against the other complainants…

Deane J (would refuse special leave)

11. The principal issue - indeed, the only real issue - between the Crown and the applicant in relation to each of the eight charges against him was the identity of the assailant. Once the conclusion is reached that the similarity between the three occurrences was so striking as to warrant a conclusion by the jury that the assailant on each occasion was the same person, it is apparent that evidence that the applicant was the assailant in the case of any one of the assaults was relevant and possessed probative force in relation to the question whether the applicant was the assailant in relation to the other occurrences. That is not to say that the evidence was admissible on the basis of an assumption that the applicant was guilty of the offence which was the subject of a particular charge or of the offence or offences which related to other occurrences. It is simply to recognize that, once the similarity between the three occurrences is accepted as being such as to warrant a conclusion by the jury that the assailant on each occasion was the same, evidence that the applicant was the assailant on one of the other occasions is material and has probative force on the question whether he was the assailant on the occasion to which the charge relates and evidence that he was the assailant on the occasion to which the charge relates is material and has probative force on the question whether he was the assailant on the other occasions.

12. It follows that Mitchell J. was correct in holding that, in the circumstances of the present case, evidence in relation to the other occurrences was admissible on the charge or charges relating to each occurrence for the reason that it came within the exception to the general rule excluding evidence of other criminal offences. It was common ground on the hearing of the present application that the consequence of a decision to that effect was that all three issues which the applicant wishes to raise must be resolved adversely to him. I would, accordingly, refuse the application for special leave to appeal.

Dawson J (would refuse special leave)

2. The questions which arise upon this application are whether it was proper to join all the counts in the same information and, if so, whether the trial judge nevertheless erred in the exercise of her discretion in refusing to sever the information and direct separate trials in relation to some of the counts. Even if the charges were properly joined and the trial judge did not err in the exercise of her discretion, a third question arises whether the trial judge should have directed the jury to consider the evidence separately in relation to the counts involving each of the girls.

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5. The trial judge took the view that if the evidence admissible to prove the charges involving one girl was admissible to prove the charges involving the others, then the offences in question formed a series of offences of the same or a similar character and that there could be no basis for the exercise of her discretion to direct separate trials. There can be no doubt that the trial judge was correct in taking this view. Whatever might otherwise be considered to be a sufficient connexion between separate offences or sets of offences to constitute them a series, it will be enough if the evidence admissible to prove one offence is admissible in the proof of the others. Such evidence of similar facts will only be admissible, for reasons to which I shall immediately turn, if there is a clear connexion between the different offences. It is, therefore, appropriate to deal first with the question of admissibility.

Gibbs CJ (would allow the appeal)

1. The applicant was tried on indictment in the Supreme Court of Western Australia on five counts, namely (1) that on 30 April 1985 at Fremantle he unlawfully detained one Paula Cordisco in a toilet against her will, (2) that on 30 April 1985 at Fremantle he committed rape upon the said Paula Cordisco, (3) that on 31 May 1985 at Hamilton Hill he unlawfully deprived one Maree Fumo of her personal liberty by carrying her away in a motor vehicle against her will, (4) that on 31 May 1985 at Hamilton Hill he unlawfully and indecently assaulted the said Maree Fumo and (5) that on 31 May 1985 he committed rape upon the said Maree Fumo. The charges of unlawful detention, unlawful deprivation of liberty and unlawful and indecent assault arose out of the circumstances in which the alleged rapes were respectively committed and do not require separate discussion. For the sake of simplicity, I shall discuss the matter as though two charges were joined in the indictment, one of raping Paula Cordisco at Fremantle on 30 April 1985 and the other of raping Maree Fumo at Hamilton Hill on 31 May 1985.

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4. … Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard. For that reason, I adhere to the view which I expressed in Sutton v. The Queen.

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7. There were some points of similarity between the two cases of rape - in particular, both young women were at "Visions", a nightclub in Fremantle, before they were allegedly approached by the applicant and in both cases the assailant allegedly put his hand round the victim's neck and started to choke or strangle her, although in the one case this was done after the rape and the other before it; in each case the applicant told the police a story, allegedly false, in an attempt to exculpate himself. There were, however, points of marked dissimilarity. In particular, Paula Cordisco was allegedly approached by the applicant outside the nightclub and led away against her will to a toilet block where she was detained and ultimately raped; on the other hand, Maree Fumo accepted an offer by the applicant to drive her home but was instead driven to a park and there raped. The applicant completely denied having been involved in the incidents described by Paula Cordisco; he admitted having had intercourse with Maree Fumo but stated that it was with her consent. It is unnecessary to go further into the details of the evidence because at no stage of the proceedings has it been contended by the Crown that the evidence of one rape was admissible on the charge of the other. The Crown relies on the fact that the learned trial judge directed the jury that the two cases should be considered separately and that no inference could be drawn from the evidence of one in relation to the other.

8. Since the evidence on one count was inadmissible on the other, Sutton v. The Queen required it to be held that the two rapes should not have been joined in the one indictment. There can be no doubt that the joinder was highly prejudicial to the applicant - indeed, it seems to me that in this case, where the applicant was raising an issue of identity in one case and an issue of consent in the other, the jury would inevitably have been influenced by the fact that the offences were tried together to find against the applicant on both issues.

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10. Regrettable though it is, I am forced to the conclusion that the convictions cannot be allowed to stand. The joinder of the charges was wrongly made and was calculated to have a seriously prejudicial effect on the prospects of the applicant securing an acquittal on any charge.

Mason and Deane JJ (would dismiss the appeal)

1. This application for an extension of time and for special leave to appeal arises out of the applicant's conviction for two offences of rape, two offences of deprivation of liberty and one offence of indecent assault. The five offences were charged in the one indictment, notwithstanding that they arose out of two separate incidents on different dates involving different women. At the beginning of the trial the trial judge refused an application by counsel for the applicant for an order directing separate trials of the offences arising out of each incident. The applicant now seeks special leave to appeal on the ground that the trial judge's discretion to order separate trials miscarried and that in the circumstances of the case this gave rise to a miscarriage of justice.

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3. The applicant's defence in relation to the two charges arising out of the first incident was that he was not the person responsible and that he had no involvement in it. His defence in relation to the three charges arising from the second incident was that the young woman agreed to travel in his car and consented to having sexual intercourse with him, there being no unlawful or indecent assault upon her.

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16. We have already mentioned the strength of the Crown case on each of the charges. The case on each charge was so strong that, even if there had been separate trials, it is not easy to conceive that a rational jury, properly instructed, would have acquitted the applicant. No reason emerges for thinking that the first complainant could have been mistaken as to the identity of her assailant. And, in the situation which we have outlined, no reason emerges for thinking that the second complainant consented to sexual intercourse, more especially when the applicant's initial claim was that he was not involved, a claim which he abandoned when Regan declined to support it.

17. In these circumstances it is unrealistic to speak of there having been a miscarriage of justice. To the extent to which the jury might otherwise have been influenced by superficial similarities in the two incidents which lacked probative value the direction of the trial judge instructed them to consider each charge separately and in the light of the evidence relating to it and not to draw any inference from the co-existence of the two sets of charges. And, as we have already indicated, to the extent to which the trial judge's failure to order separate trials created a difficulty in maintaining a defence of denial of identity on one set of charges and a denial of consent on the other, that failure in the absence of any explanation at all, appears to have been brought about by a deliberate decision made for forensic reasons.

Brennan J (would allow the appeal)

2. Once it was conceded that the two sets of offences were part of a single series, it was for the judge in the exercise of his discretion to grant or refuse the application for separate trials. I have already stated my view in Sutton as to the way in which the exercise of that discretion should be approached (see pp.541-543) and it is unnecessary to repeat it. Suffice to say that when the admission of the evidence admissible on the charges joined in an indictment carries the risk of impermissible prejudice to the accused if the charges are tried together, separate trials should be ordered. There is no requirement that some further "special feature of the case" appear before separate trials are ordered. I agree with the Chief Justice that sexual cases are likely to arouse prejudice and that a direction to the jury is unlikely to give sufficient protection to an accused. Though I would not place sexual cases in a special category for the purpose of applying the general statement I made in Sutton, it would be an extremely rare case in which the difference in the view expressed by the Chief Justice and my view would result in a different exercise of discretion.

3. This was a clear case where separate trials were essential to avoid impermissible prejudice but the inability to find a further special feature of the case led to a miscarriage of the discretion. In consequence, evidence of an impermissibly prejudicial kind was admitted on the trial of each set of offences. The error is so manifest, the miscarriage of justice by the wrongful admission of evidence so substantial and the giving of effect to the relevant observations in Sutton so important that special leave to appeal should be granted. The appeal must be allowed and, regrettably, there must be new trials on each set of offences.

Dawson J (would allow the appeal)

10. In the present case the two counts of rape with which the applicant was charged were the same offences in law. There was, I think, a sufficient similarity in fact to constitute them a series in that the Crown alleged that each offence occurred in the early hours of the morning after the attendance of the accused at the same nightclub. Of course, there were dissimilarities and, the question being one of degree, it is one upon which minds might differ. But, as the authorities recognize, that is of less significance because of the discretion given to the trial judge to direct separate trials if prejudice to the accused is likely to arise from the joinder and the provision allowing joinder should not, because of the discretion, be given an unduly restricted meaning: Kray at p.131.

11. In this case I think that the trial judge erred in the exercise of his discretion by failing to require the indictment to be severed. The test is not whether there is some special feature of the case over and above the joinder of the charges in question which can be seen to give rise to possible prejudice. I very much doubt whether Lord Pearson in Ludlow intended to use the expression "some special feature" in this way. At all events, it is clear that the very nature of some offences is such that as a general rule they should not be tried together because of the risk of prejudice where the evidence admissible in proof of one is not admissible in proof of the other.

12. The risk of prejudice is, of course, the risk that, notwithstanding any direction to the jury to consider the offences separately, they will treat the evidence upon one charge as evidence of similar facts in support of the other. Similar fact evidence is excluded by the law where it can do no more than demonstrate a criminal propensity, because the prejudicial effect of the evidence is far greater than any relevance which it might have. However, where the evidence has relevance beyond showing a criminal disposition then it will be admissible provided its probative value is sufficient to outweigh its prejudicial effect. The subject is examined in Sutton v. The Queen and I shall not repeat the examination here.

Hamill J

1. Eight accused currently stand charged on a single indictment with a total of 36 offences said to have occurred between July 2013 and January 2014. The offences allegedly arose out of the activities of a criminal gang known as the Blacktown Chapter of the Brothers for Life (BFLBlacktown). Thirty three of the offences (counts 1-31 and 33-34) involve the possession, use and discharge of a number of firearms. Those offences include two charges of murder arising out of separate incidents on 29 October 2013 and 16 December 2013 (counts 11 and 30). Four incidents occurred in November 2013 giving rise to offences including shooting at nominated people with intent to kill (counts 14-28). Three incidents in July, August and October 2013 involve what might generally be described as extortion or intimidation offences in which firearms were discharged and/or used to threaten the victims (counts 1, 4 and 8). There are also charges of possession of various firearms and the supply of a large commercial quantity of a prohibited drug. The counts name individual accused and combinations of the eight accused in relation to the different offences. Each of the accused also stands charged with an offence of participating in a criminal group (counts 35-36).

2. By separate notices of motion and supporting affidavits, seven of the accused seek various orders whereby certain counts would be severed from the indictment or individual accused subject to separate trials. One accused, AC, makes no application in relation to the indictment. She is content to proceed with a joint trial of all accused and all charges.

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5. The Crown relies on s 29(1) of the Criminal Procedure Act 1986 (NSW) which allows the Court to hear and determine proceedings relating to two or more offences alleged to have been committed by the same accused person where the offences arise out of the same set of circumstances, or the offences form part of a series of offences of the same or similar character. The Crown also relies on s 29(2) which allows the Court to hear and determine offences alleged to have been committed by two or more accused persons where the offences arise out of the same set of circumstances or the offences form part of a series of offences of the same or similar character.

6. The accused, in various ways and to varying degrees, rely on s 29(3) which provides that “proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice”.

7. The accused also rely on the provision in s 21 of the Criminal Procedure Act 1986 (NSW) which provides a discretion to order a separate trial of any count or counts where an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment or where, for any other reason, it is desirable that the accused person be tried separately.

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84. With the exception of AC, none of the accused consent to the conduct of the trial in the manner contended for by the Crown. Accordingly, neither s 29(1)(a) or 29(2)(a) are engaged.

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87. I am satisfied that each of the offences charged in counts 11 through to 29 arose out of the same set of circumstances, namely the differences and violent animosity which existed between the Blacktown and Bankstown chapters of the BFL.

88. The situation is more complicated in respect of counts 1 through 10 and counts 30 through to 36.

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91. I am inclined to accept the submission of the accused in respect of sub- paragraph (b). That is, I am not disposed to find that the relevant “set of circumstances” for the purpose of s 29(1)(b) and 29(2)(b) can be as loosely defined as the criminal activities of the BFL Blacktown. However, I am inclined to agree with the prosecution in respect of counts 1, 2, 3, 4, 5, 8, 9, 10 and 30 that the offences were part of a series of offences of the same or similar character. Each of the counts that I have identified involved members of the BFL Blacktown discharging firearms in the course of the commission of serious criminal offences. Each involved members of the group acting at the direction of either Farhad or Mumtaz. My somewhat tentative view is that such similarities are sufficient to fall within the provision in s 29 (1)(c).

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122. The “interests of justice” in s 29(3) is an expression of very wide import and the provisions provide the Court with a wide discretion to make orders for the severance of counts and the conduct of separate trials of individual accused. The provisions, the cases decided under ss 21 and 29 and the common law which precedes them, require the court to bring to account a wide range of considerations and factual circumstances.

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124. This is a particularly significant factor in the present case and both sides have mounted arguments based around such practical considerations. The prosecution has emphasised the fact that its case is reliant on the twelve informant witnesses. Because these witnesses require special arrangements to ensure their attendance and safety, there is a powerful reason to attempt to ensure that they are required to give evidence on one occasion or, if that is not achievable, on as few occasions as possible. On the other hand, a number of the accused point to the fact that they are charged with very few of the offences on the thirty six count indictment and that if the case proceeds as proposed by the prosecution they will be required – at great expense to the community via the NSW Legal Aid Commission – to sit through a trial that will last for many months when the evidence touching upon them will be in very short compass. This is a very potent consideration in the cases of Nasiri, Bishop and Zarshoy, each of whom is charged with two or three specific offences as well as the general offence of participation in the criminal group (and Nasiri has been discharged in relation to that offence). It is also a relevant consideration for Kalal and Jamil

Qaumi, each of whom stands charged with far fewer offences than do Farhad and Mumtaz.

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149. Nor am I persuaded (on the limited arguments advanced) that the evidence of the earlier offences (counts 1-10) or the Antoun murder possess significant probative value as tendency evidence given the different nature of the events and the different tendencies involved in those events. Unless the tendency is cast as widely as a tendency to engage in criminal activity or a tendency to discharge firearms or something similar, the “extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue” is limited. While it has been held that tendency evidence under s 97 (unlike coincidence evidence under s 98 and similar fact evidence at common law) does not require there to be an “underlying unity” or “striking similarity” to be admissible, it has also been held that the more general the tendency asserted the less probative value the evidence is likely to have. Even if it is accepted that the evidence has significant probative value for the purpose of s 97, that probative value does not substantially outweigh the prejudicial effect that the evidence may have on the accused.

150. I can envisage no direction that would engender confidence in the Court that a jury could put aside the relevantly prejudicial impact of conducting the two unrelated murder charges together, one involving what might be seen as a gangland war and the other that is cast as a contract killing. I have little doubt that any guilty verdict returned if these counts were run together in one trial would be tainted by the possibility that the jury was simply overwhelmed by the prejudice created by the joint trial. I have considered the Crown’s submission, based on the observations of Martin J in R v Bunting and Ors (at [409]), that the jury is entitled to “the full story” rather than a “fragmented and distorted picture”. However, such a submission might be made in any case. The essential questions in a case such as this are whether the evidence to prove one count is admissible to prove the other and whether the conduct of the trials jointly may be “productive of a miscarriage of justice”: cf Makarov v R (No 3) [2008] NSWCCA 293 at [54], [73]-[82]. That is a question of judgment to be made in the circumstances peculiar to each case. There is a certain danger in applying the findings and language employed by a trial Judge in a case as extraordinary and extreme as that which confronted Martin J in Bunting and Ors.

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152. I have also taken into account the inconvenience and possible danger to the witnesses in being required to give evidence on more than one occasion. The orders I propose will require most, if not all, of the informant witnesses to give evidence on more than one occasion. I have given this matter anxious consideration and the orders I will make minimise or alleviate that concern as much as possible, within the overarching requirement that each of the accused receive a fair trial according to the law.