GIBBS C.J.: 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.
2. Section 585 of the Criminal Code (W.A.) provides that, except as thereinafter stated, an indictment must charge one offence only, and not two or more offences, but contains a proviso to the effect (inter alia) that "when several distinct indictable offences form or are a part of a series of offences of the same or a similar character ... charges of such distinct offences may be joined in the same indictment against the same person". The section goes on to provide that if it appears to the Court that the accused person is likely to be prejudiced by the joinder, the Court may require the prosecution to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately. The words "form or are a part of a series of offences of the same or a similar character" appeared in r.3 of the rules in the First Schedule to the Indictments Act 1915 (U.K.). That statute has provided a model for the provisions in force in some of the Australian States, but it has not been slavishly followed; for example, s.4 of the Indictments Act gave a general authorization for the joinder of charges, whereas s.585 of the Criminal Code (W.A.) forbids joinder subject to exceptions.
3. At the trial counsel for the applicant expressly conceded that the charges were correctly joined, but asked the learned trial judge to exercise his discretion and grant separate trials. The learned trial judge inquired from counsel whether there was any authority in conflict with Reg. v. Ludlow (1971) AC 29, in which Lord Pearson,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
De Jesus v The Queen [1986] HCA 65
Case
[1986] HCA 65
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, De Jesus, against his conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of Queensland and sentenced to life imprisonment. The central dispute on appeal concerned the admissibility of certain evidence obtained from the applicant and the fairness of the trial process.
The High Court was required to determine whether the trial judge erred in admitting evidence that had been obtained from the applicant following his arrest. Specifically, the court had to consider whether the evidence was obtained in contravention of the applicant's legal rights and, if so, whether its admission nonetheless served the interests of justice. A further issue was whether the trial judge's directions to the jury regarding the applicant's confession were adequate.
The Court applied the principles governing the admissibility of evidence obtained in contravention of legal rights, particularly the discretion to exclude such evidence where its prejudicial effect outweighs its probative value. The judges considered the circumstances of the applicant's arrest and questioning, and the nature of the evidence obtained. They also reviewed the legal tests for admitting confessions and the requirements for a fair trial, including the need for clear and accurate jury directions.
The High Court dismissed the appeal, finding no error in the trial judge's rulings or directions that would warrant setting aside the conviction.