Donaldson v The State of Western Australia

[2005] WASCA 196

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   DONALDSON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 196

CORAM:   WHEELER JA

ROBERTS-SMITH JA
MILLER AJA

HEARD:   16 SEPTEMBER 2005

DELIVERED          :   17 OCTOBER 2005

FILE NO/S:   CACR 82 of 2005

BETWEEN:   WAYNE KIRWAN DONALDSON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :MAZZA DCJ

File No  :POR IND 58 of 2003

Catchwords:

Criminal law and procedure - Joinder of charges of sexual offences - Application for separate trials - Trial adjourned - Preliminary appeal under s 26 Criminal Appeals Act 2004 (WA) - Section 133 Criminal Procedure Act 2004 (WA) - Principles - Whether prejudice from joinder - Risk of unfair trial - Section 31A Evidence Act 1906 (WA) - "Propensity evidence" - "Relationship evidence" - Whether evidence in respect of different complainants mutually admissible

Legislation:

Criminal Appeals Act 2004 (WA), s 26

Criminal Code (WA), s 585
Criminal Law Consolidation Act 1935 (SA), s 285A
Criminal Procedure Act 2004 (WA), s 3, s 133

Evidence Act 1906 (WA), s 31A

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr M T Ritter SC

Respondent:     Mr P D Yovich & Ms S Markham

Solicitors:

Appellant:     Dwyer Durack

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Attorney‑General's Reference No 1 of 1988 (1988) 49 SASR 1

Boardman v Director of Public Prosecutions [1975] AC 421

Catherwood v Thompson [1958] OR 326

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

De Jesus v The Queen (1986) 61 ALJR 1

Director of Public Prosecutions v P [1991] 2 AC 447

Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566

Driscoll v The Queen (1977) 137 CLR 517

Ex parte Guardian Newspapers Ltd [1999] 1 Cr App R 284

Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997

Harriman v The Queen (1989) 167 CLR 590

Hoch v The Queen (1988) 165 CLR 292

Krakouer v The Queen (1998) 194 CLR 202

Lawrence v The Queen (1981) 38 ALR 1

Makin v Attorney‑General for New South Wales [1894] AC 57

Martin v Osborne (1936) 55 CLR 367

Morin v The Queen (1890) 18 SCR 407

Newell v The King (1936) 55 CLR 707

Parker v The Queen (1982) 41 ALR 576

Perry v The Queen (1982) 150 CLR 580

Pfennig v The Queen (1995) 182 CLR 461

R v Best [1998] 4 VR 603

R v Boardman [1975] AC 421

R v Chin (1985) 157 CLR 671

R v Cicchino (1991) 54 A Crim R 358

R v Diaz [1982] WAR 60

R v H [1995] 2 AC 596

R v Jones [2003] 1 AC 1

R v Lavender (2005) 79 ALJR 1337

R v Nicolaidis (1994) 33 NSWLR 364

R v Soma (2003) 212 CLR 299

R v Swaffield (1998) 192 CLR 159

R v Talia, Centra and Maglitto [1996] 1 VR 462

R v Tonner [1985] 1 WLR 344

R v Vickers [1975] 1 WLR 811

R v Williams [1978] QB 373

Rodway v The Queen (1990) 169 CLR 515

Smith v The Queen (2001) 206 CLR 650

Stickland v The Queen [2002] WASCA 339

Sutton v The Queen (1984) 152 CLR 528

The State of Western Australia v Donaldson [2005] WADC 126

Thompson v The Queen (1989) 169 CLR 1

Wood v The State of Western Australia [2005] WASCA 179

Woolmington v Director of Public Prosecutions [1935] AC 462

Case(s) also cited:

R v Gee (2003) 212 CLR 230

R v Symons [1981] VR 297

R v Wright (1985) 19 A Crim R 17

State of Western Australia v Munmurrie [2005] WASC 133

Tweedie v The Queen [2003] WASCA 282

1. WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Roberts‑Smith JA and Miller AJA. I agree with the reasoning of Roberts‑Smith JA in relation to the construction of s 31A of the Evidence Act1906 (WA) and s 133 of the Criminal Procedure Act 2004 (WA). I would therefore dismiss the appeal.

2. Turning to the question of when the trial should be taken to have "started" for the purposes of s 26(6) of the Criminal Appeals Act2004 (WA), I agree with Roberts‑Smith JA that there are indications in the language of the statutory context, and particularly in ss 98 and 142 of the Criminal Procedure Act, which tend to suggest that a trial does not start until the accused is put in the charge of the jury. 

3. The legislative purpose in relation to that question is not easy to discern.  It must at least have been intended, as Roberts‑Smith JA observes, to avoid the public expense and inconvenience which would result from either discharging a jury or requiring the jury to wait for a significant time while an urgent appeal was determined.  As Miller AJA points out, however, an adjournment on the day appointed for trial, even before a jury is sworn, also causes expense and inconvenience and may well be particularly stressful for complainants and other witnesses.  The Second Reading Speech of the Hon the Attorney General, to which both their Honours refer, does not indicate with precision the aspects of the "ordinary conduct of trials" which it was intended to protect. 

4. Those policy issues not being clear, in my view, the question falls to be determined by reference to the language of the legislative context. I would therefore conclude that the trial starts, for the purpose of s 26(6) of the Criminal Appeals Act , when the jury is sworn and the accused is put in the charge of the jury.

5. ROBERTS-SMITH JA:  This is a preliminary appeal against an order by Mazza DCJ in the District Court at Perth, dismissing an application for separate trials. 

6. The appellant's trial is still pending.

7. Notwithstanding the early stage of the trial process, this matter has already had something of a convoluted history.

8. The appellant was originally presented on a District Court indictment dated 2 February 2004 charging him with 18 sexual offences.

1. On 5 November 2004 his Honour HH Jackson DCJ ruled on an application by the appellant for an order that the charges be tried separately in four groups.  HH Jackson DCJ dismissed the application for separate trials following a hearing under s 611A of the Criminal Code. 

2. A date for trial was subsequently set.  The trial was listed to commence on 9 May 2005.

3. In the meantime, the Criminal Procedure Act 2004 ("the CPA") and the Criminal Appeals Act 2004 ("the CAA"), together with the Supreme Court (Court of Appeal) Rules 2005 ("the Court of Appeal Rules"), came into operation on 2 May 2005.

4. On 9 May 2005 before Mazza DCJ, a notice of discontinuance under s 87 of the CPA was presented by the State.  That procedure replaced that formerly provided for in s 581 of the Code for the filing of a nolle prosequi.  The prosecutor then presented a fresh indictment dated 9 May 2005.  Except for one count where the particulars had been changed, and one which had been "upgraded" to charge a more serious offence, all the counts were identical to those in the previous indictment.

5. Prior to the empanelment of a jury, and in the absence of the jury panel, the appellant was arraigned on the new indictment and pleaded not guilty.

6. Counsel for the appellant then foreshadowed another application for an order for separate trials under s 133(3) of the CPA.  The State prosecutor took a preliminary objection.  He contended that his Honour was bound by the ruling previously made by HH Jackson DCJ.

7. Counsel for the appellant argued that because the first prosecution had been discontinued by the presentation of the notice of discontinuance, what was now before the Court was a new prosecution on an indictment presented after 2 May 2005 and so to which a different legislative scheme applied.

8. On 9 May Mazza DCJ upheld that submission in part.  He ruled that there was before him a new prosecution and that in those circumstances he was not bound by the ruling previously made by HH Jackson DCJ, although such a decision would have persuasive weight.  He considered that what fell to him was to determine the application for severance in accordance with the law as it now stood. 

1. The situation was not as difficult as appeared to be thought by all concerned.  An interlocutory ruling made by a trial Judge in relation to procedure or evidence, or indeed, on the law, either before or during the course of a trial, was always able to be revisited by the Judge until the trial was finally concluded.  That occurs not infrequently where circumstances change in the course of a trial.  For example, a ruling about relevance or admissibility made before trial on the basis of witness depositions may need to be revisited later if the evidence actually led is different.  A view that certain evidence is admissible or would not occasion unfair prejudice may come to be changed in light of the evidence actually given.  Of course, unless there has been a relevant change in the evidence or circumstances of the case, it would be expected that any renewed application would be dismissed for the reason it had already been ruled upon and nothing had been shown to justify reconsidering the point.  Be all this as it may, the present appeal is against his Honour's ruling on the separate trials application on 12 May 2005, not his ruling on the preliminary point on 9 May. 

2. By s 133(1) and (3) of the CPA, if a court is satisfied, (whether before or during a trial) that an accused is likely to be prejudiced in the trial of an indictment because it contains two or more charges, the court may order that the accused be tried separately on one or more of them and order the prosecutor to tell the court the order in which the charges will be tried.

3. By s 133(7), if a superior court makes or refuses to make such an order, the court must adjourn the trial to enable an appeal against the order or refusal to be commenced and concluded under s 26 of the CAA.

4. This appeal is brought pursuant to s 26(1)(b) of the CAA, which relevantly provides that if an accused is charged in one indictment with two or more offences, the accused may appeal to the Court of Appeal against a refusal by a Judge of a superior court to order that there be a separate trial of any of the charges.  I shall return to this section shortly.

5. Section 26 is in Div 2 of Pt 3 of the CAA.  Section 27 is in Div 3 of Pt 3.  Section 27 stipulates that leave of the Court of Appeal is required for each ground of appeal in an appeal under that part.  Accordingly, leave to appeal was required here.  That was granted on the papers by a single Judge on 18 July 2005, following the filing of the appellant's case.

6. The application for severance was made on 10 May 2005.  The order sought was that there be four separate trials with each trial encompassing all of the charges relating to a particular complainant.  The application was, by the agreement of counsel, dealt with on the papers comprising the prosecution brief, together with supplementary depositions from some of the complainants and some of the complainants' mothers.

7. The application was brought on the second day of a scheduled seven‑day trial and took up virtually all that day.   

8. Mazza DCJ reserved judgment with respect to the separate trials application until Thursday 12 May 2005. On that day he refused the application and indicated that he would deliver reasons orally the following week. Counsel informed his Honour that the appellant wished to mount a preliminary appeal pursuant to s 26 of the CAA and accordingly his Honour was compelled, by virtue of s 26(6) of the CAA, to adjourn the trial.  He made an order adjourning the trial pending the outcome of the preliminary appeal.  His Honour's reasons for decision on the application were delivered on 17 May 2005 (The State of Western Australia v Donaldson [2005] WADC 126).

9. When the appeal came on for hearing on 16 September 2005, the Court informed counsel that we would wish to hear submissions on the combined effect of s 137(7) of the CPA and s 26(5) and (6) of the CAA.  Counsel said that was not an aspect which they had considered and sought leave to deal with it by way of written submissions.  We gave leave and have considered the submissions subsequently filed.

10. Section 612 of the Code previously read:

    "At the time appointed for the trial of an accused person he is to be informed in open court of the offence with which he is charged, as set forth in the indictment, and is to be called upon to plead to the indictment, and to say whether he is guilty or not guilty of the charge.

    The trial is deemed to begin when he is so called upon."

11. Section 611A provided:

    "(1)   Before an indictment has been presented to a court against a person committed to the court for trial or after an indictment (including an ex officio indictment) has been presented to a court against a person and before a jury is sworn, the court may ‑

    (a)determine any question of law or procedure if it considers it is convenient to do so to facilitate the preparation for, or the conduct of, the trial, or is otherwise desirable;

    (b)determine any question of fact which in a trial may be determined lawfully by a judge alone without a jury;

    (c)permit the person committed or indicted to make admissions under section 32 of the Evidence Act 1906, notwithstanding that the person's trial has not begun;

    (d)make an order under section 43A of the Juries Act 1957.

    (2)   The judge constituting the court which deals with any matter under subsection (1) need not be the judge who constitutes the court when the trial of the person committed or indicted takes place before a jury.

    (3)   Any proceedings under subsection (1) occurring before the trial of the person committed or indicted has begun are to be taken as being part of the trial.

    (4)   The powers in subsection (1)(a) and (b) may be exercised where a person has been committed to a court for sentence.

    (5)   Without limiting section 610, if after an indictment has been presented to a court the court in proceedings under subsection (1) -

    (a)makes a requirement or gives a direction under section 585(4), or

    (b)refuses to make requirement or give a direction under section 585(4), the court is to adjourn the trial to enable any appeal under section 688 to be made and determined."

12. Section 611A(5) was inserted by Act No 46 of 2004 and came into operation on 1 January 2005.  It was not in the section when HH Jackson DCJ made his decision in November 2004.

13. Section 585, as it relevantly stood at November 2004, was in the following terms:

    "Except as hereinafter stated, an indictment must charge one offence only, and not 2 or more offences:

    Provided that when several distinct indictable offences form or are part of a series of offences of the same or a similar character or when several distinct indictable offences are alleged to be constituted by the same acts or omissions, or by a series of acts done or omitted to be done in the prosecution of a single purpose, charges of such distinct offences may be joined in the same indictment against the same person.

    In any such case the several statements of the offences may be made in the same form as in other cases, without any allegation of connection between the offences.

    But, if in any such case it appears to the court that the accused person is likely to be prejudiced by such joinder, the court may require the prosecutor 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."

14. I have already mentioned the terms of s 133(7) of the CPA. So far as is pertinent to this appeal, s 26 of the CAA provides as follows:

    "(1)If an accused is charged in one indictment with 2 or more offences -

    (a)the prosecutor may appeal to the Court of Appeal against any order made by a judge of a superior court that there be a separate trial of any of the charges; and

    (b)the accused may appeal to the Court of Appeal against a refusal by a judge of a superior court to order that there be a separate trial of any of the charges.

    (2)If an accused is tried at one trial with 2 or more offences charged in one indictment and is convicted of any of those offences, an appeal by the accused under this Part against that conviction on any ground that relates to the joinder of the charges in the indictment cannot be allowed on that ground if the accused has already appealed under subsection (1)(b), except on the basis of any relevant matter that emerged at any time after the decision that was the subject of that appeal.

    …

    (5)An appeal under this section against a decision must be commenced within 7 days after the date of the decision and before the trial of the accused starts.

    (6)If an appeal under this section is commenced after the trial of the accused concerned has started, it must be dismissed.

    (7)On an appeal under this section against an order or a refusal to make an order, the Court of Appeal may confirm the order or refusal, or set it aside and make any order that could have been made on the application for a separate trial."

15. The threshold question which arises is whether the trial of the appellant has started, within the meaning of that expression in s 26(5) and (6) of the CAA.

16. In R v Cicchino (1991) 54 A Crim R 358, Murray J (with whom Malcolm CJ and Wallwork J agreed), discussed various provisions of the Code on the question of when the trial of the accused was to be taken to have started for the purpose of determining whether a statutory amendment allowing for an alternative verdict applied.  The amendment came into operation after the appellant in that case had been arraigned, but before he was arraigned again and put in the charge of the jury some nine months later.

17. Murray J held (at 363) that the section made it clear the trial was deemed to commence upon the arraignment of the accused "at the time appointed for his or her trial" (my emphasis), but added there was nothing in s 612 of the Code to suggest an accused may not be arraigned on more than one occasion - and noted it was indeed the practice to do so (first at an early stage and later again in the presence of the jury).

18. From an examination of the Code provisions, his Honour concluded (at 364) that if a trial had commenced when the appellant was first arraigned, it had been adjourned, and when he was subsequently arraigned again in open court in the presence of the jury, a further trial commenced, on that occasion upon his plea of not guilty, to be a trial by jury which concluded with his conviction by verdict of the jury.  His Honour said it was at that point that it became relevant to consider the state of the law as to the verdicts which it was open to the jury to return.  That last issue his Honour resolved by finding the amendment to be procedural only (at 366).

19. Sections 611A and 612 of the Code were amongst those provisions which were repealed by s 22 and s 24 of the Criminal Procedure (Consequential and Other Provisions) Act 2004 (WA).  All of the relevant statutory provisions are now to be found in the CPA.  There is no specific equivalent to s 611A of the Code, although it was broadly replaced by s 98 of the CPA, which allows for the making and determination of pre‑trial applications.  There is now no specific provision stipulating when a trial is deemed to have commenced.  An accused may be required to plead to an indictment at any time (s 91 CPA).

20. I return to the threshold question.

21. The words "trial date" are defined in s 3 of the CPA as meaning the date set for the start of the trial.

22. There is no similar definition in the CAA, and, as I have said, nor is there any statutory prescription of when the trial of the accused is deemed to have started.

23. One can readily discern a legislative purpose for allowing an application for separate trials to be made and appealed before the trial of an accused starts before a jury, but not during the course of a trial and not otherwise (except than on the basis of any relevant matter that emerges at any time after the decision that was the subject of a preliminary appeal: s 26(2) of the CAA). The legislative purpose is clearly to encourage - and indeed require - applications of this kind to be dealt with in advance of the trial, particularly so that juries are not empanelled only then to be kept out of court (sometimes for days) while such applications are dealt with by the Judge. Further, it would not be sensible to read the expression as preventing a preliminary appeal under s 26 merely because an accused had been arraigned before a Judge, but no jury had been empanelled. It would make a nonsense of s 26 of the CAA to hold that the trial started once the accused was arraigned. That could take place shortly after the accused's committal to the Supreme or District Court and months before trial. The legislature cannot have intended that an appeal against a severance application refused months before the actual trial had commenced would have to be dismissed because the trial had started upon arraignment. On the other hand, a consequence obviously to be avoided would be to have a jury empanelled, kept out while the application was argued, and then discharged because the trial had to be adjourned under s 133(7).

1. The starting point must be the position at common law.  One must then determine whether that position has been changed by statute in the particular jurisdiction.

2. At common law and in the absence of any statutory provision, the trial of an accused begins when the jury is sworn and the accused is put in its charge.

3. In R v Tonner [1985] 1 WLR 344 the point arose because the Criminal Justice Act 1982 (Eng), which abolished the right of an accused to make an unsworn statement from the dock, came into operation after the appellant had been arraigned and his trial then aborted, but before he was re‑arraigned on his re‑trial.  The abolition of the right was expressed not to apply to a trial which began before the amendment came into force.  The Court of Appeal (Criminal Division) held a trial only began when the jury had been sworn and were seized of the issue, and not when the accused was arraigned to plead to the indictment.

4. One argument advanced on behalf of the appellant there, relied upon s 7 of the Courts Act 1971 (Eng) which provided that the trial was deemed to begin when the accused was arraigned and which served a purpose similar to s 612 of the Criminal Code.  Watkins LJ, who delivered the judgment of the Court, held that the clear (and sole) purpose of that provision was to provide a time limit within which an accused was to be brought to trial once committed for trial.  The intention was to provide a clear yardstick by which it could be seen the accused had been brought to their trial.  The Court held (at 354‑355) s 7 was of no assistance in deciding when, as a matter of law, a trial by jury could properly be said to begin.  The reasoning is consistent with that of Kennedy J in R v Diaz [1982] WAR 60 in respect of s 612 of the Code.

5. The Court of Appeal referred to R v Vickers [1975] 1 WLR 811 in which a pre‑trial legal ruling was sought to be challenged on appeal. At 355, Watkins LJ set out the following passage from the judgment of Scarman LJ (ibid, 814):

   "After a short adjournment, the charge was then put to the appellant, who pleaded guilty to the conspiracy.  We think it clear that the proceedings in which the ruling was given were not part of the trial.  Arraignment is the process of calling a defendant forward to answer an indictment.  It is only after arraignment, which concludes with the plea of the defendant to the indictment, that it is known whether there will be a trial and, if so, what manner of trial.  Hale's Pleas of the Crown, 1736 ed, vol II, p 219, describing arraignment, says that, if the prisoner pleads not guilty: 'the clerk joins issue with him … and enters the prisoner's plea: then he demands how he will be tried, the common answer is "by God and the country" and thereupon the clerk enters "po. se." [Ponit se in patriam].'  In Hale's time trial by compurgation or battle were possible alternatives to trial by jury.  Not so today; but even today there is no trial on a plea of guilty: for 'An express confession … is the highest conviction that can be,' Hawkins, Pleas of the Crown, c 31, s 1.  Thus it still remains true that there is no trial until it is known whether one is necessary: upon a plea of guilty, no trial is needed for the entering of the plea is the conviction."

6. As to that, Watkins LJ said (at 356):

   "It might be said that for the purpose of the determination of the issue in that appeal what Scarman LJ there said was obiter dicta.  But obiter or not we find it to be a very comprehensive and accurate statement of the law as to the commencement of trial."

7. His Lordship made reference to a number of other cases, including R v Williams [1978] QB 373, in which Shaw LJ noted that historically, arraignment was treated as coming within proceedings "before trial" and made it plain the court was accepting the proposition that the trial began when the jury were seized of the issue. Another case referred to was Catherwood v Thompson [1958] OR 326, in which the Canadian Court of Appeal held that generally speaking, a trial may be said to have actually commenced when all preliminary questions have been determined and the jury enter upon the hearing and examination of the facts for the purpose of determining the questions in controversy.

8. Watkins LJ then turned to the decision of the Supreme Court of Canada in Morin v The Queen (1890) 18 SCR 407 in which the six Judges were evenly divided on the question whether the trial in that case had commenced. His Lordship said (at 357):

   "The judgment of Ritchie CJ is, we think, worthy of very careful study.  It is instructive in that the Chief Justice examined a large number of authorities, most of them English.  He relied quite heavily on the work of Chitty on Criminal Law 2nd ed (1826) in reaching this very clearly stated final conclusion, at p 415:

   'Until a full jury is sworn there can be no trial, because until that is done there is no tribunal competent to try the prisoner.  The terms of the jurymen's oath seem to show this.  And as is to be inferred as we have seen even from what Lord Campbell says that all that takes place anterior to the completion and swearing of the jury is preliminary to the trial.  How can the prisoner be tried until there is a court competent to try him?  And how can there be a court until there is a judge on the bench and a jury in the box duly sworn?  Until there is a court thus constituted there can be no trial, because there is no tribunal competent to try him.  But when there is a court duly constituted the prisoner being present and given in charge to the jury his trial in my opinion commences, and not before.'

   That expresses more aptly and clearly than we think we could what we deem to be the true position.  We go further and say that our experience as judges in the criminal courts leads us inevitably to the conclusion, unassisted by the authorities to which we have referred in the course of this judgment, that it would be wholly insensible to speak of the commencement of a trial as being  other than when the jury have been sworn and take the prisoner into their charge, to try the issues and, having heard the evidence, to say whether he is guilty or not of the charge against him; always remembering that it is inevitably a trial by jury, not by a judge.  A trial can take place only if the defendant himself demands it by pleading not guilty.  If he pleads guilty there is no issue to be tried."

9. Tonner was followed in Ex parte Guardian Newspapers Ltd [1999] 1 Cr App R 284, in which the Court of Appeal said (at [10]) it was:

   "… well settled that a trial does not start on arraignment, unless there is any statutory provision creating this effect.  It starts when a jury is sworn and the defendant is put into the charge of the jury.  The entering of a plea of 'not guilty' does not mark the commencement of a trial but merely establishes the need for a trial" (citations omitted).

   (See also R v Jones [2003] 1 AC 1 at [5] and Archbold, "Criminal Pleading, Evidence and Practice" 2005, Sweet and Maxwell, at [4‑93].)

10. In my opinion this reflects the position at common law in Western Australia.

11. As Miller AJA points out, in the various Australian jurisdictions there are different statutory provisions which govern the question when the trial of an accused begins.

12. In Newell v The King (1936) 55 CLR 707 the High Court held the appellant's trial in the Tasmanian Supreme Court commenced when he was arraigned and put in charge of a jury. However, the jury was unable to agree and was discharged. Before his re‑trial, the Jury Act 1936 (Tas) was amended to allow majority verdict of not fewer than 10 jurors.  The appellant was convicted by majority verdict.  The appeal in the High Court turned on whether the amendment was procedural or affected substantive rights.  The Court held the trial by a jury of 12 was an essential part of the appellant's right to trial by jury and was not merely procedural.  The Tasmanian Criminal Code provided that a trial was deemed to be begun when the accused is called upon to plead, which was "many months" before the amendment.  Dixon J said (at 712) that when the amendment was expressed to apply "on the trial of any criminal issue" those general words should not be understood as applying to a trial already begun of issues already joined; they should be taken to mean on the trial of any criminal issue joined after the commencement of the Act.

13. In Attorney‑General's Reference No 1 of 1988 (1988) 49 SASR 1, King CJ (with whom Millhouse J agreed) held (at 5 ‑ 6) that under the provisions of the Criminal Law Consolidation Act 1935 (SA), in South Australia, the trial commences when, the accused having been arraigned before the Judge who is to try him, that Judge embarks upon the hearing and determination of any preliminary questions or upon the empanelling of the jury.

14. Attorney‑General's Reference No 1 of 1988 was overruled by the High Court in Rodway v The Queen (1990) 169 CLR 515 at 523, although that was on the holding that the previous statutory provision provided substantive protection against conviction and was to be treated as conferring substantive rights as opposed to relating to matters of mere procedure.

15. On a different appeal by way of a case stated, the High Court in Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 said (at 578) that statement was to be contrasted with the position in other States and that:

    "It may be that the answer to the question - when does the trial begin - requires consideration of the context within which that question arises and does not admit of an answer of the generality given in Attorney‑General's Reference No 1 of 1988."  (Citations omitted)

16. The High Court decided in that case that the trial of the accused had not begun until he was arraigned, and as the questions reserved for the Full Court concerned what had occurred prior to that, they had not arisen "at the trial" within the meaning of s 350(1A) of the Criminal Law Consolidation Act and the Judge had no power to reserve them.

17. The question in R v Nicolaidis (1994) 33 NSWLR 364 was not "when did the trial begin?" but was rather one purely of statutory construction concerning the meaning of the words "on or before arraignment".

18. Statutory abolition of the right of an accused to make an unsworn statement at his trial was the cause of an appeal also in R v Talia, Centra and Maglitto [1996] 1 VR 462. The accused having been arraigned, they applied for, and were granted, a stay pending a grant of legal representation. Thereafter the Evidence (Unsworn Evidence) Act 1993 (Vic) came into force.  That abolished the right of accused persons to give unsworn evidence or make unsworn statements at their trial.  Section 7(1) provided that the abolition should apply to trials commencing on or after the commencement of the Act.  Section 7(2) provided that for the purposes of subs (1) a trial commenced on arraignment of the accused.  The accused were subsequently granted legal aid.  Centra applied for a ruling that he could give unsworn evidence.  The Judge ruled that he had no such right.  The accused were re‑arraigned before the jury panel, a jury was empanelled and the hearing commenced.  Centra was convicted.  He applied for leave to appeal on grounds which included that the trial Judge erred in refusing to allow him to give unsworn evidence.

19. The Victorian Court of Appeal (Winneke P, Charles JA and Southwell AJA) allowed the appeal, holding that the time of the arraignment referred to in s 7 was that when the applicant was first called upon to plead, and his subsequent re‑arraignment did not obscure the fact that the procedure of formal arraignment occurred when he had first, by his plea, joined issue with the prosecution.  Thus, upon his (first) arraignment, the applicant had the right to give unsworn evidence and the Judge's refusal to allow him to do so was an error which went to the root of his trial.

20. As the Court there recognised (at 468), the critical question was whether, on the date the amendment came into force, the applicant's trial had "commenced" in the sense that he had been "arraigned".  That was a question of statutory construction which turned in large part on the fact that it concerned legislative removal of a substantive right of the applicant.

21. Their Honours drew a clear distinction between the time at which an accused is arraigned and the point at which the accused's trial commences. It was the former which the legislature had selected to identify a particular point in time after which the right to give unsworn evidence would be lost. They said (at 475) there was little point in seeking to interpret the word "arraignment" in the amending legislation by resort to arguments based on the time which might elapse between the arraignment contemplated by s 391A of the Crimes Act 1958 (Vic), that is, the first, formal arraignment after committal, and the empanelment of the jury. That time could be lengthy. Their Honours continued (at 476):

    "Indeed the procedure stipulated by ss 391 and 391A itself contemplates that the arraignment of the accused is to be divorced, perhaps by long periods, from the point in time when a jury is empanelled.  The length of time however cannot alter the inescapable fact that the accused has been 'arraigned' for his trial in accordance with the relevant procedure laid down in this State.  Arguments of this type seem to us to confuse the concept of 'arraignment' with the concept of 'when a trial begins'.  The trial judge in his reasons appears to have fallen into this error.  A jury trial may well 'commence' at various times depending upon the context in which the concept is being considered.  This was the view expressed by the Court of Criminal Appeal in this State in the case of Symons, supra: see in particular the views of Young CJ at 299 and Tadgell J at 308ff. In the case of Tonner, Rees, Harding & Evans v R (1985) 80 Cr App R 170, the court was of the view that a jury trial commenced at the time when the accused was placed in charge of the jury. Indeed Tonner was a case in which the court had to consider the question of when 'the trial commenced' because the statute there under consideration made that time the 'cut off point' after which accused persons in the United Kingdom were to lose their right of making unsworn statements.  Indeed the court was at pains to point out that, at law, a jury trial did not commence when the accused was arraigned.  It adopted the views of the trial judge in this regard which it expressed as follows at 179:

    Mr Clegg's contention was and remains that the trial … had commenced when [the accused] was arraigned as long ago as April 1983; and that accordingly … it was self evident that [the] section did not apply; that the trial was, as it were, in midstream.  The judge … came to the conclusion that [the trial] commences at the time when the jury are sworn and the defendant is put in charge of that jury.  It did not begin, and never has begun, he said, with the arraignment of the defendant.

    These cases are, in our view, of little relevance in determining the central issue which has been raised for our consideration because the statute here specifically defines 'the commencement of the trial' as being the 'arraignment of the accused'.  As we have already indicated that time, in this State, can only be the time when the accused is arraigned in accordance with the Crimes Act.  The applicant, in accordance with that procedure, had been arraigned at the time when the Evidence (Unsworn Evidence) Act became law.  The applicant thus retained his right to give unsworn evidence on his trial."  (My emphasis).

22. Section 98 of the CPA replaced s 611A of the Code.  The former relevantly provides that:

    "(2)At any time before the accused's trial begins, the court ‑

    (a)may determine any question of law or procedure, give any direction, or do any other thing, that is necessary or convenient in order to facilitate the preparation for, or the conduct of, the trial, or that is otherwise desirable;

    (b)may determine any question of fact that in a trial may be determined lawfully by a judge alone without a jury;

    …

    (6)Any proceedings under subsection (2) are to be taken to be part of the accused's trial."  (My emphasis)

23. It can immediately be seen that the legislature has specifically contemplated these matters occurring "before the accused's trial begins", yet has decreed any such proceedings are "to be taken to be part of the accused's trial".  That is consistent with the previous s 611A, which expressly contemplated rulings being made after an indictment was presented but before the jury were sworn (s 611A(1)) and yet deemed those proceedings to be part of the trial, even though the trial had not begun (s 611A(3)).

24. It is pertinent to note the provisions of s 695 of the Code, now repealed, which dealt with time for appealing to the Court of Criminal Appeal.  The second paragraph of subs (1) provided:

    "In the case of an appeal under section 688(2)(aa) or (3) notice of appeal must be given within 7 days after the decision complained of and cannot be given after a jury is sworn."

25. Appeals under s 688(2)(aa) and (3) were against any decision under s 611A(5)(a) or (b) (on an application for severance under s 585(4)).

26. In the Consideration in Detail on the Criminal Appeals Bill 2004 (Western Australia, Parliamentary Debates, Legislative Assembly, 21 September 2004, 6164 – 6165) the Hon Attorney General explained:

    "Clause 26:  Separate trial decision, interlocutory appeal against … (5)  An appeal under this section against a decision must be commenced within 7 days after the date of the decision and before the trial of the accused starts.

    These amendments provide a base for the provisions sought to be inserted through the Criminal Law Amendment (Sexual Assault and Other Matters) Bill, which is currently being debated in the Legislative Council. The amendments will achieve a reformation of section 585(5) of the Criminal Code to make it clear that the court will decide an application upon joinder. This will enable better definition of the decision upon which a preliminary appeal may be instituted. Accordingly, 'form a view' and its equivalents are to be replaced with 'decide'. A change to the term 'charges' is also proposed so that it will more specifically and properly refer to charges of offences. …

    The amendments will also alter what was section 684 of the Criminal Code to provide an exception for any person from exercising a right of appeal to a Court of Criminal Appeal on a ground related to joinder if the person exercised the right to institute a criminal appeal. The exception is available when relevant matters have emerged after the making of the decision that was the subject of the preliminary appeal. This exception is essential to ensure that an accused person retains the opportunity to institute an appeal despite having instituted that preliminary appeal against a decision to join charges on indictment. Subsequent to the earlier decision, new facts and circumstances have arisen that may be relevant to the appropriateness of charges being drawn for trial.

    Finally, the amendments reflect section 695 of the Criminal Code that are required to ensure that once a trial commences, an appeal cannot be instituted against a decision regarding joinder of charges. This amendment is necessary to ensure that the capacity to institute preliminary appeals does not interfere with the ordinary conduct of trials, and, in particular, to prevent the appeal provision being used as a device to bring a trial to a premature conclusion by the later institution of a preliminary appeal."  (My emphasis)

27. If it be accepted that the intention was to reflect s 695 in the respect mentioned, to construe the expression "before the trial starts" as meaning before the jury is sworn would give effect to that intention.

28. In his written submissions, senior counsel for the appellant drew our attention to a number of transcript references which he contended showed both the trial Judge and counsel had a common belief or understanding up to and including 12 May 2005 that the trial of the appellant had not begun.  Whether that be so or not, it cannot be determinative.  As a matter of law, the trial had either started or it had not.

1. I come to the submission that the trial of the appellant could not be taken to have started (within the meaning of s 26(6) of the CAA) because until his Honour ruled on the severance application made on 10 May 2005 it was not known what trial was going to commence - that is, whether it would be on the indictment as framed or on fewer charges or a different indictment.  Although initially attracted to that submission, on reflection I cannot accept it.  That is because the power of the Court to order separate trials may be exercised "before or during a trial" (s 133(1) of the CPA). On the face of it, s 133(1) of the CPA is difficult to reconcile with subss (5) and (6) of s 26 of the CAA. The only way in which effect may be given to all these provisions is to construe them as requiring an appeal against a decision under s 133 made before a trial has started to be commenced within seven days after the date of the decision and before the trial starts, but as precluding an appeal against a decision made on a separate trials application during the course of a trial, until after the trial has concluded.

2. The statutory provisions distinguish the making of an application (or an order in respect of) separate trials under s 133(1) of the CPA on the one hand, and the commencement of an appeal against such an order or refusal, on the other (s 26(5) and s 26(6) of the CAA).  The application (or order) may be made at any time, before or during a trial.  An appeal against such an order can only be made before, or after, a trial - it cannot be made during a trial.  I accept the appellant's submissions on this that these provisions give effect to the legislative purpose that appeals from such rulings should not be permitted mid‑trial, so as to avoid cost and inconvenience to the Court, jurors and witnesses from interruption of a trial which has begun.

3. There is further statutory support for the view that a trial does not "start" until the accused is arraigned before and put in the charge of the jury. It is to be found in s 142 of the CPA.  That section provides that:

   "Whether or not an accused has previously pleaded to a charge, the court trying the accused on the charge must, at the start of the trial and in such manner as the court decides is just ‑

   (a)inform the accused of the charge; and

   (b)require the accused to enter a plea in accordance with section 126(1) and (4)."  (Emphasis added).

   (Section 126(1) sets out the pleas which may be made to a charge; s 126(4) says that unless the accused pleads guilty, two or more pleas may be made together).

4. The words emphasised above are a clear acknowledgement by the legislature that the arraignment of an accused does not of itself signal the start of the accused's trial.

5. Having regard to the structure of s 26 and the legislative purpose which is to be discerned, the expression "before the trial of the accused starts" must be taken to be a reference to the trial commencing once the accused is in the charge of the jury.

6. That is sufficient to determine the point insofar as it affects the present case. Although the application was made after the trial date, the appellant's trial had not started before the jury; no jury has yet been empanelled and the appeal was accordingly instituted before the trial of the accused had started. Accordingly, s 26(6) does not require that this appeal be dismissed on that account.

7. The trial Judge commenced by noting that the general rules with respect to indictments are now to be found in the Sch 1 of the CPA. He noted that cl 2(3) of Sch 1 stipulates that an indictment must contain one charge only, unless cl 7 or another written law permits otherwise. He then set out cl 7(3), which provides that:

   "A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences ‑

   (a)form or are a part of a series of offences of the same or a similar character;

   (b)are alleged to arise substantially out of the same or closely related acts or omissions; or

   (c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,

   and may do so without alleging a connection between the offences."

8. His Honour was of the view that the offences charged plainly formed a series of offences of the same or similar character, although as he correctly pointed out, the fact that they had been properly joined in the one indictment did not prevent the appellant applying for severance. 

9. His Honour then set out the terms of s 133(3) of the CPA and said that in deciding whether to order severance, it was open for him to decide that any prejudice to the appellant could be guarded against by an appropriate direction to the jury and that might apply even to cases of a sexual nature where the evidence on one charge was inadmissible on another (s 133(5)). He pointed out that by virtue of s 133(6), one factor to which he must not have regard in considering the question of prejudice, was the possibility that any similar fact evidence may be the result of collusion or suggestion.

10. His Honour explained the submissions being advanced on behalf of the appellant were that he was likely to suffer prejudice if the indictment was allowed to stand, such prejudice arising because the evidence of each complainant was inadmissible in respect of the charges relating to the others and as all the offences were sexual offences, no direction would be sufficient to cure the highly prejudicial nature of the evidence.

11. Referring to the submissions advanced on behalf of the State, his Honour said they were that the evidence of each complainant was admissible in respect of each of the others because they constituted propensity evidence under s 31A of the Evidence Act 1906 (WA), went to rebut a number of possible lines of defence open to the appellant and were admissible relationship evidence within s 31A of the Evidence Act.

12. His Honour said (at [12]) that if the State made good its submission he would dismiss the appellant's application and allow the joinder, because while the accused would suffer prejudice by such joinder, it would not be unfair prejudice.

13. Turning then to the question of admissibility of the evidence, his Honour first referred to s 31A of the Evidence Act and set that section out.

14. He then considered the meaning of the expression "similar fact evidence" in s 31A of the Evidence Act, that being an expression not defined in that Act.  His Honour held it encompasses a number of different types of evidence, classically being evidence of behaviour which is strikingly similar to that said to constitute the offence or offences before the Court.  He said it could also be evidence which shows unusual features, underlying unity, system or pattern, citing Pfennig v The Queen (1995) 182 CLR 461 and Hoch v The Queen (1988) 165 CLR 292. He said evidence of prior similar conduct may also be led to rebut a defence raised by an accused or to establish that an act was intended and not accidental, referring to Makin v Attorney‑General for New South Wales [1894] AC 57 and Harriman v The Queen (1989) 167 CLR 590.

15. The Judge then proceeded to consider the first group of charges, which concerned the complainant KML.  She was born on 14 July 1983.  She is a sister of RKL.  She says that when she was about 8 years of age, she and RKL joined a swimming school.  The appellant was one of the coaches.  When her mother and father separated in 1993 she stayed with her mother.  His Honour then set out extensive passages from KML's deposition.

16. RKL was born on 5 November 1986.  She started going to the swimming club in 1992.  Initially she was coached by a woman, but later, half‑way through 1994 the appellant became her coach.  His Honour then set out the relevant passages from her deposition. 

17. Counts 12 to 15 on the indictment related to a complainant NDP.  She was born on 29 January 1984.  She joined the accused's swimming squad in the year she was in grade 7 when she was 9 years old.  She met KML and CAM who were fellow swimming squad members and they became best friends.  In 1997 after a bout of illness she started participating in a running programme conducted by the appellant and later that year she resumed swimming training.  His Honour set out the relevant passages from her deposition.

18. Counts 16 to 18 were charges relating to the complainant CAM.  She was born on 28 January 1984.  She joined the Scarborough Surf Lifesaving Club in the 1995/96 summer season.  The appellant was also a member of the same club.  At the end of that season he asked her to start training with him.  She did swimming, running and gym training with him.  She trained with him from 1996 to March or April 1999.  She was friends with KML, RKL and NDP.  His Honour set out the relevant passages from her deposition. 

19. KPL is the mother of KML and RKL.  After she separated from her husband, she helped the appellant in the administration of his coaching work between 1993 and 1998.  She and the appellant engaged in a sexual relationship which they wanted to keep from her daughters.  She said that the accused often used to buy the girls gifts.  She recalled that both girls received bathers, cards and money from him.  She also recalled that KML received a tracksuit top from him.

20. His Honour summarised his views in respect of this evidence at [26] ‑ [29]:

    "26     There are some offences which have aspects of striking similarity.  For example, both RKL and CAM allege they were all provided with bathers by the accused immediately before the commission of some offences and that he spoke to them on occasions whilst offences were being committed as if nothing was happening.  These striking similarities are not uniform to all complainants nor are they uniform to all the offences allegedly committed against RKL and CAM.  Some of the sexual conduct is similar as to place, for example, offences against KML and NDP along with counts 17 and 18 relating to CAM allegedly occurred in a vehicle being driven by the accused.  There are also similarities as to the type of offending, for example, there are seven charges involving allegations of digital penetration of RKL, NDP and CAM.

    27However, overall I do not think this case is a similar fact evidence case constituting strikingly similar allegations of sexual misconduct.  In truth the charges are alleged to have occurred in a variety of ways and at various times and places.  That finding does not resolve the matter because in my opinion there is an underlying unity, system or pattern in the accused's behaviour towards all of the complainants.

    28I have arrived at this opinion because of the combined strength of six factors.  Those factors are:

    (1)Each complainant was a female member of the swimming squad which the accused coached.

    (2)All of the alleged offences occurred during the time that the accused was acting as each complainant's swimming coach; he thereby held a position of influence and trust over them.  Further, his position enabled him to be with the complainants alone without arousing undue suspicion.

    (3)Each complainant, when the offences were committed, was about the same age.  KML was between the ages of 10 to 12, RKL was between the ages of 9 to 11, NDP was 13, CAM was between the ages of 12 and 13.

    (4)All of the alleged offences, save count 4, occurred in circumstances in which the accused was alone with the complainant.  Count 4 was committed on KML when RKL was present in the car but in circumstances where she, that is RKL, could not have seen what occurred.

    (5)The accused committed offences against a background of having ingratiated himself towards each of the four complainants.  To KML and RKL he made gifts of swimsuits, cards and money.  To RKL he made another gift of a CD.  He took NDP and CAM to a concert.  He took NDP to dinner.  To CAM he provided her with a pair of bathers.

    (6)The accused committed the offences in circumstances where he instilled an atmosphere of normality when in reality such a circumstance did not exist.  To KML he said immediately before he committed each offence words like, "My hands are cold."  To RKL, whilst touching her, he would talk to her about such things as swimming training and school.  To CAM he spoke to her whilst committing offences against her about training or school work.  To NDP, having taken her to dinner, he invited her into the back seat of his car and asked her if she felt comfortable.

    29It is my opinion that the underlying unity pattern or system which I have identified is similar fact evidence and thereby constitutes propensity evidence as defined by s 31A(1)(i) of the Evidence Act."

21. Having earlier noted that neither similar fact evidence, nor other evidence of the conduct of the accused, is admissible under s 31A of the Evidence Act unless it fulfils two criteria, namely whether the evidence would (either by itself or having regard to the other evidence to be adduced) have significant probative value and secondly, that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial, his Honour next proceeded to determine whether the evidence here fulfilled those criteria.

22. He concluded (at [36]) that the evidence does have "significant probative value" within the meaning of s 31A(2)(a)). He set out the passage from the dissenting judgment of McHugh J in Pfennig v The Queen, at 528 ‑ 529:

    "If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation.  The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted.  Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial."  (My emphasis)

    and then concluded (at [40] ‑ [42]):

    "40     In my opinion the propensity evidence sought to be adduced in this case has very real probative value.  I will not repeat what I have already said about this.  As to the degree or risk of an unfair trial I accept there is a significant degree of risk of an unfair trial because of the danger that a jury will adopt impermissible propensity reasoning.  That can, to some extent, I believe, be guarded against by an appropriate and strong direction by the trial judge.  Nevertheless, a significant degree of risk of an unfair trial remains.  However, in my opinion, given the facts of this case, the probative value of the evidence outweighs that risk.

    41What then would fair minded people think?  A fair minded person would, in my view, believe that in order for justice to be done in this case one jury should decide the case on all of the admissible evidence.  The alternative would be that four separate juries would consider the case as it relates to each complainant without having a complete picture of the accused's conduct.  If such a situation occurred there is a very real risk that the public interest would not be served.  This is a case where I believe fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

    42For these reasons I conclude that the evidence of the four complainants is admissible propensity evidence pursuant to s 31A of the Evidence Act."

23. His Honour then referred to s 133 of the CPA and stated that in his opinion the counts in the indictment "must" be tried together; the evidence of the complainants is admissible "one against the other" and for these reasons he dismissed the application for severance.

24. Before dealing with the individual grounds of appeal, it is necessary to consider the process which a court is required to undertake when making a decision on an application under s 133(3) of the CPA.  I shall confine my discussion to a situation in which an accused is seeking separate trials of multiple counts on an indictment.

25. The starting‑point is the proposition in s 133(3) of the CPA that if the court is satisfied there is likely to be prejudice to an accused by the joinder of two or more charges, the court may order separate trials.

26. In considering the likelihood of an accused being so prejudiced in the trial of an indictment containing two or more charges of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion (s 133(6)).

27. It is self‑evident that a court cannot make a severance order under s 133(3) unless satisfied there would be a likelihood of prejudice to the accused.

28. But satisfaction that there is such a likelihood does not mean an order for severance must be made.  In deciding whether or not to make such an order, it is open to the court to conclude that such likelihood can be guarded against by direction to the jury (s 133(5)(a)).

29. There is a question whether the words "to so decide" in s 133(5)(b) and (c) refer to the decision to make an order under subs (1) or to the decision that the likelihood of prejudice may be guarded against by a direction to the jury, under subs (5)(a).

30. Senior counsel for the appellant submitted the words "to so decide" in subss (5)(b) and (c), must be a reference to the decision referred to in subs (5)(a).  Counsel for the respondent agreed.  I accept that submission.  The only alternative construction would be that it is a reference to the opening words of subs (5), being the decision whether to make an order under subs (3).  The latter construction does not make sense; the former does.  There would be nothing left upon which (b) and (c) could sensibly operate once the court had decided that likely prejudice to the accused could (or could not) be guarded against by a direction to the jury.

31. The central test for the making of a decision under s 133(1) is whether the court is satisfied the accused is likely to be prejudiced because the indictment contains two or more charges. If there is not such a likelihood, the order cannot be made. If there is, the court may nonetheless refuse to order severance if satisfied that the likelihood can be guarded against by a direction to the jury.

32. The way in which these provisions logically fall to be determined, in practical terms, therefore seems to me to be as follows:

    (1)If the court is satisfied the accused is likely to be prejudiced by the joinder of two or more charges on an indictment, the court may order separate trials.

    (2)If the court is not so satisfied, the order cannot be made.

    (3)In cases involving sexual charges, in considering the likelihood of prejudice from the joinder, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion.

    (4)Notwithstanding the court is satisfied there is a likelihood of prejudice from the joinder, then

    -irrespective of the nature of the offences (subs (5)(b)); and

    -even if the evidence on one count is not admissible on another (subs (5)(c)),

    it is open to the court to decide the likelihood of prejudice to the accused can be guarded against by a direction to the jury (subs (5)(a)), so that an order for severance need not be made.

33. I can now return to his Honour's reasons and the grounds of appeal.

1. His Honour began by accepting the proposition that if the evidence in respect of the charges relating to one complainant was admissible on charges in respect of the others, he would dismiss the application for separate trials because there could be "no unfair prejudice".  It will be apparent from what I have said above, that that was a correct approach.  By his gloss of "unfair" prejudice, I take it his Honour meant simply prejudice other than that naturally flowing from the tendency of the subject evidence to show the guilt of the appellant.  All probative evidence is prejudicial in that sense.  The section is concerned with "impermissible prejudice" (per Brennan J in Sutton v The Queen (1984) 152 CLR 528, 542); furthermore, the prejudice of which the section speaks is only that flowing from a joinder of the charges on the same indictment. If the evidence on one count was admissible in respect of the others (and vice versa), there clearly could be no prejudice from the joinder.  If there was no such likelihood of prejudice demonstrated, it was not open to his Honour to make a separate trials order.

2. As the learned author of "Criminal Law Western Australia" pointed out in the (now superseded) commentary on s 689 of the Code (at [689.70]) there is a distinction between propensity, relationship and similar fact evidence and those terms have sometimes been used loosely and inappropriately.

3. The characteristic which has long been regarded as giving rise to unfairness to an accused is the potential for a jury to use mere "propensity" reasoning, to conclude that because the accused has committed other similar offences, they must have committed those with which they stand charged. 

4. As the primary Judge recognised, similar fact evidence gains its probative value not from showing the accused is a person likely to commit such offences, but because, in the absence of concoction, the "striking similarities" in the evidence tend to show each of the offences was committed by the same person (or to identify the offender as the accused) (Boardman v Director of Public Prosecutions [1975] AC 421; Perry v The Queen (1982) 150 CLR 580; Thompson v The Queen (1989) 169 CLR 1 and Martin v Osborne (1936) 55 CLR 367) or because of the improbability of witnesses giving such similar accounts unless they were true.

5. In Hoch v The Queen (supra) the accused was charged with sexual offences against three boys aged between 10 and 13.  Each boy gave evidence of being indecently dealt with by the accused in circumstances bearing a striking similarity to the others.  Two of the boys were brothers and the third was a friend.  They lived together in a boys' home in which the accused was a recreation officer.  There was evidence that the boys had an antipathy to the accused which may have been unrelated to any sexual offending.  The High Court held that the charges should not have been heard together because the evidence admissible on each was not admissible on the others.  That was because (per Mason CJ, Wilson and Gaudron JJ) there was a reasonable possibility of concoction - and that being so, the evidence lacked that probative value which was the condition of its admissibility.

6. The majority explained (at 295) that the value of similar fact evidence lies in the improbability of witnesses giving accounts having the requisite degree of similarity unless the events they described actually occurred.  The probative value of the evidence, upon which its admissibility depends, lies in the quality that it is not reasonably explicable on the basis of concoction.

7. Brennan and Dawson JJ noted (at 298) that it does not necessarily follow that because counts are properly joined in one indictment, the trial on each count should not be severed from the others.  They pointed out that:

   "If the evidence admissible on each count is not admissible on the other counts and there is a consequent risk of impermissible prejudice to an accused in the conduct of a single trial on all counts - and there usually is such a risk in sexual cases - separate trials should be ordered: De Jesus v The Queen (1986) 61 ALJR 1."

8. As this Court explained in Wood v The State of Western Australia [2005] WASCA 179 per Pullin JA at [41], s 585(6) of the Code as it stood after 1 January 2005 and s 31A(3) of the Evidence Act were designed to overcome the effect of the decision in Hoch. Section 585(5) and s 585(7) of the Code were designed to overcome De Jesusv The Queen (1986) 61 ALJR 1, and s 31A(2) of the Evidence Act is a statutory adoption of what McHugh J said in Pfennig.

9. Section 585 was repealed on 2 May 2005. Since that date the equivalent provisions to s 585(5) and s 585(6) are to be found in s 133(5) and s 133(6) of the CPA. There is no equivalent to s 585(7).

10. In his Second Reading Speech on the Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004 (Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4607) the Hon Attorney General said (at 4608):

    "First, the Bill amends the law relating to joinder. The Criminal Code currently provides that an indictment must charge one offence except if the charges are part of a series of offences of the same or a similar character. If several charges are joined, the accused is then entitled to separate consideration of each charge and to a separate verdict from the jury on each charge. If the trial judge foresees the danger of an unfair trial from the joinder, the court retains the discretion to order separate trials. In some cases, a jury direction is sufficient to overcome any prejudice to the accused. However, in the case of multiple sexual offences, the High Court held in Hoch v The Queen (1988) 165 CLR 292 that when evidence on one joined charge is inadmissible on another, a jury direction is insufficient to overcome the prejudice to the accused. In this instance, the charges must be severed and separate trials ordered. This means that children who may be a complainant in one case and a witness to another may be required to give evidence more than once. Further, juries hear the evidence of each complainant in a vacuum, unaware that the alleged offender has also been charged with offences against other complainants. Though the nature of offending against children often means that victims have a common connection, such as being from the same family or same social group, courts will generally rule that there is a possibility of collusion or concoction of evidence and order that separate trials be held.

    The Bill will therefore amend the Criminal Code and the Evidence Act so that if a defendant is accused of committing multiple offences, the prosecution may more readily be able to join the charges to be dealt with under the one indictment. An accused person will have a right to appeal against such joinder of offences. At the same time, the proposed amendments will provide the courts with greater capacity to admit propensity and relationship evidence. The court will still need to be satisfied that the evidence has a significant probative value and that the probative value outweighs the risk of an unfair trial. These changes reflect recommendations 271, 272, 275 and 276 of the Law Reform Commission of Western Australia's report titled, 'Review of the Criminal and Civil Justice System in Western Australia'."

11. The Law Reform Commission recommendations to which the Hon Attorney General referred, were:

    "271.   The existing principles of law which hold that a direction by the trial judge to the jury cannot overcome the prejudice to the defendant arising from joinder of charges should be overridden.  The law should be amended so that if the judge before whom the issue of joinder is brought concludes that prejudice can be overcome by an appropriate direction by the trial judge joinder of charges at trial should be permitted.  [26.6]

    272.   In considering potential prejudice, embarrassment or other reason for ordering separate trials under provisions relating to the joinder of alleged offences of a sexual nature, the court should not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion.  [26.8]

    …

    275.   When a ruling on a separate trial application on indictment has been made:

    (1)the right to appeal should be open to the prosecution as well as the defence;

    (2)the right of appeal should be to the Court of Criminal Appeal;

    (3)strict time limits should apply to prevent any disruption to the trial process - for example, the appeal should be lodged seven days from the making of the order; and

    (4)no right of appeal on the ruling will be available after the trial or trials have been conducted. [26.15]

    276.   An equivalent provision to that set out in Recommendation 275 should be included in the Justices Act for appeals against a ruling on a separate summary trial application with a final right of appeal to a judge of the Supreme Court. [26.15]"

12. It is quite clear that these amendments were intended to override the effect of the restrictions upon joinder and the use of similar fact or propensity evidence (particularly in cases of sexual offences) which had been established by the authorities, including Hoch, De Jesus and Pfennig.  Reliance upon those authorities (as by the appellant here) is accordingly misplaced.  One must look to the wording of the provisions themselves and construe them so as to give effect to their legislative purpose (s 18 Interpretation Act 1984 (WA); R v Lavender (2005) 79 ALJR 1337, [33]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384.)

13. At common law, relationship evidence was seen as going to the background of the contacts between and events involving the complainant and the accused.  As the learned author of "Criminal Law Western Australia" explained (ibid):

    "Relationship evidence comprises the background to events or a series of incidents said to have occurred between the complainant and the accused.  It is often led in prosecutions of sexual offences and in those cases was said, in the phraseology of earlier times, to show the accused's 'guilty passion' for the complainant.  It is allowed to be led because, it is said, it puts in the proper context the specific allegations which constitute the offences on the indictment.  But it is hard to see that facts led about events occurring between A and the accused can establish anything about a relationship between the accused and B."

14. On the distinction between propensity and similar fact evidence, Mason CJ, Deane and Dawson JJ said in Pfennig (supra) (at 464 ‑ 465):

    "[t]here is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged.  It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence.  Those categories are not exhaustive and are not necessarily mutually exclusive.  The term 'similar fact' evidence is often used in a general but inaccurate sense."

15. Propensity evidence within the meaning of s 31A of the Evidence Act is evidence which has such logical relevance and probative value that it ought to be admitted notwithstanding its potentially prejudicial effect.  Although dissenting, it was the judgment of McHugh J in Pfennig which is the source of the statutory formula for admissible propensity evidence in s 31A of the Evidence Act -

    "(1)   In this section ‑

    'propensity evidence' means ‑

    (a)similar fact evidence or other evidence of the conduct of the accused person; or

    (b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

    'relationship evidence' means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

    (2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers ‑

    (a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

    (b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

    (3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion."

16. Under that section, "propensity evidence" includes "similar fact" evidence.  "Relationship evidence", as now statutorily defined, also includes any evidence of an accused person's conduct, character, reputation or tendency.  Such evidence will be admissible if the court considers that, either alone or in combination with other evidence, it would have "significant probative value" and that its probative value compared to the degree of risk of an unfair trial, is such that fair‑minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

17. In its terms, this definition is considerably wider than what relationship evidence meant at common law.

18. The threshold test for admissibility of any evidence is relevance (Smith v The Queen (2001) 206 CLR 650, [6]). Evidence is relevant if it tends to prove a fact in issue or a fact relevant to a fact in issue. The probative value of relevant evidence is the extent of the tendency of the evidence to do that. Other than similar fact evidence, propensity evidence as defined in s 31A is clearly now admissible precisely because it shows the propensity of an accused to commit offences of the kind charged (in the sense that he or she is a person who has committed other offences). It is a matter of degree. Such evidence will not be admissible if its probative value is less than "significant", nor unless its (significant) probative value, weighed against the risk of an unfair trial, is such that fair‑minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The expression "relevant evidence of guilt" is tautologous because it is only relevant if it is evidence of guilt. Nonetheless, the expression shows the legislature was concerned here with evidence of guilt of the offence(s) charged, rather than, for example, inclination or mere bad character.

19. The rationale for the submission of propensity evidence at common law was the subject of review by the House of Lords in Director of Public Prosecutions v P [1991] 2 AC 447. The appellant was charged with the rape and incest of his two daughters. The trial Judge refused an application for separate trials. In upholding his appeal against conviction, Lord Lane CJ, speaking for the Court of Appeal, commented that the prosecution might like to consider whether the time had not come for the House of Lords to be asked to look again at this branch of the law. Not surprisingly, the prosecution took up that suggestion. The House of Lords upheld the prosecution appeal.

20. In his speech (with which the other Lords agreed), Lord Mackay of Clashfern LC said (at 460) that as the matter was left in R v Boardman [1975] AC 421, it was not appropriate to single out "striking similarity" as an essential element in every case allowing evidence of an offence against one victim to be heard in connection with an allegation against another. His Lordship said that obviously in cases where the identity of the offender is in issue, evidence of a character sufficiently special, reasonably to identify the perpetrator is required; however, the essential feature of evidence to be admitted, is that its probative force in support of the allegation that the accused committed the offence charged is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. His Lordship observed that such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed, but restricting admissibility to such circumstances is to restrict the operation of a principle in a way which gives too much effect to a particular manner of stating it, and is not justified. He continued (at 460 ‑ 461):

    "Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises demonstrates that there is no single manner in which this can be achieved.  Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree."

21. At 462 his Lordship concluded:

    "When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it, notwithstanding the prejudicial effect of admitting the evidence.  This relationship, from which support is derived, may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances.  Relationships in time and circumstances other than these may well be important relationships in this connection.  Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary.  To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle."

22. This reformulation of the "similar fact" evidence test so as to focus on sufficient probative value to justify admission notwithstanding its prejudicial effect, was subsequently described by Lord Lloyd of Berwick in R v H [1995] 2 AC 596 at 626, as having released the law from the bondage of "striking similarity". The question in that case was whether evidence of similar facts from witnesses between whom there was a possibility of concoction or collusion, could meet the requirement for "independent" evidence so as to constitute corroboration. The arguments put to the House included the proposition (accepted in Hoch) that where there is a real risk of collusion, similar fact evidence is not logically probative and so is neither admissible nor corroborative.

23. The Lord Chancellor held (at 609) where the evidence is such that a jury could properly accept that it was not contaminated, it is right for the Judge to leave it to the jury for them to assess its weight. 

24. In this respect, his Lordship expressly declined to follow Hoch (ibid 610 ‑ 611), as did Lord Mustill (at 618 and 621).

25. In Director of Public Prosecutions v P and R v H, the House of Lords has come to the same position on the issue of admissibility and the possibility of concoction, in substance at least, as the legislature has statutorily mandated in this State in s 31A of the Evidence Act.  The admissibility of any evidence (including similar fact or relationship evidence) which tends to show an accused has committed other offences or been guilty of other discreditable conduct, is to be determined by weighing its probative value against its prejudicial effect - and in making that determination, the Judge is to assume the witnesses will come up to proof and will not be shaken in cross‑examination.  That being so, the possibility of concoction does not arise at that stage, but is ultimately a matter for the jury (R v H per the Lord Chancellor at 604 ‑ 605, 609, 611 ‑ 612; Lord Griffiths at 613 ‑ 614; Lord Mustill at 621 ‑ 622; Lord Lloyd of Berwick at 624 and Lord Nichols of Birkenhead at 627). The test, now decisively stated in Director of Public Prosecutions v P, is that evidence which discloses the accused has committed other crimes or engaged in other discreditable conduct will be admissible if so probative of the crime charged, that fairness and common‑sense demand that it be admitted. 

1. This ground was not argued on the basis advanced in Best that whilst the "mere possibility" of concoction cannot be a ground for inadmissibility, a "substantial" or "cogent" risk may be, but both arguments involve a reading of the relevant statutory provisions which strain their language.

2. Subsection (3) of s 398A of the Crimes Act 1958 (Vic) stated that:

   "The possibility of a reasonable explanation consistent with the innocence of the person charged … is not relevant to the admissibility of [the] evidence …"

3. In her Second Reading Speech, the Hon Attorney‑General said of this:

   "Accordingly, the mere possibility of concoction, collusion, infection or coincidence will not be a ground for inadmissibility of propensity evidence leading to the separation of trials.  However, implicit in the provision is the notion that where the court is satisfied that there is a substantial risk of concoction having occurred it would not be just to admit the evidence in a single trial."  (Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1997, 431)

4. There are four things to be said about this.  The first is that the submission was rejected in Best. Callaway JA pointed out (at 609) that the "possibility" to which Mason CJ, Wilson and Gaudron JJ were referring in Hoch at 296, was a reasonable possibility. That must also be the meaning of the words in s 398 and one could not deduce from those words what level of probability would be sufficient to render such evidence inadmissible. The omission could not be supplied, consistently with sound constitutional practice, from the Second Reading Speech (Callaway JA at 610):

   "It is Parliament that makes the law.  Extrinsic materials are an aid to construction, not a substitute for legislation … The distinction between a reasonable possibility, which is the meaning of subs (3), and a possibility supported by cogent evidence cannot be derived from the words of the section but only, at best, from the second reading speech.  It is even more unlikely that Parliament intended that a reasonable possibility should be irrelevant but that a substantial risk could be taken into account and more importantly it has not said so."

5. It can as well be said of s 31A(3) that nor has the legislature said the possibility of concoction cannot be taken into account when considering the probative value of the evidence but can when considering the risk of an unfair trial.

6. The second point is that there is nothing in the Second Reading Speech on the Western Australian amendment which suggests any such qualification as was expressed by the Victorian Attorney‑General.

7. The third point is that once a determination is made under s 31A(2)(a), there is nothing further upon which the possibility of concoction may operate again under s 31A(2)(b).

8. The risk of an unfair trial here referred to must be that which comes from the introduction of evidence which has little or no probative value, or at least not such as to outweigh the possible prejudice that it might be misused by the jury.

9. As explained, the possibility of concoction otherwise goes to destroy that very probative value of the evidence which is the condition of its admissibility.  That is the way counsel for the appellant was compelled to argue the point, returning to the submission that his Honour ought to have held the evidence inadmissible, because of the limited probative force of the evidence of each of the complainants compared to the high risk of an unfair trial.

10. The clear effect of s 31A(3) of the Evidence Act and s 133(6) of the CPA is that since 2 May 2005 the possibility (or more) of concoction is not a factor which can be taken into account by a court in considering an application for separate trials.  The balance has been struck by the legislature, which has determined that (subject to the other considerations in those provisions) a jury should have available to it, evidence of an accused's alleged sexual offences (or other discreditable conduct) against the same victim and any others, leaving the issue of concoction to be considered by the jury on the evidence led before it.

11. The fourth and final point on this aspect is that there was nothing before his Honour to suggest a reasonable possibility of concoction.  With the agreement of the State prosecutor and for the purposes of the submission only, counsel for the appellant before his Honour relied upon the depositions of NDP and CAM (AB 79 ‑ 80).  There NDP says that about two weeks after "it happened" she told her best friend CAM.  She wrote in a letter what the appellant had done to her.  She gave the letter to CAM while they were at the movies with their boyfriends.  CAM read the letter there and was shocked. NDP asked her to destroy it.  NDP says that she does not recall whether she set out in the letter any details of the incident with the appellant.

12. In her deposition, CAM says of this:

    "Before the movie started we went to the toilets and [NDP] said she had to tell me something but she wanted me to read this letter she wrote first.  I read the letter and started asking her for details.  The letter said that [the appellant] had done something to her when they had gone out and she wanted to talk to me about it.  We spoke about it the next day and she explained what had happened with [the appellant]"

13. Counsel's submission was that this provided some evidence of the possibility that there had been some sort of contact between those complainants "that might amount to collusion in relation to the recent complaint".  His Honour said he was unable to see how that might be so.

14. Quite apart from the effect of s 31A(3) of the Evidence Act, the situation here highlights the impracticality of a Judge having to make any assessment of the evidentiary strength of evidence said to raise a reasonable possibility of concoction.  That could not be done without hearing the evidence.  It would involve a consideration of whether the possibility of concoction was such as to be capable of giving rise to a reasonable doubt that the evidence of the complainant(s) was true.  That is precisely the issue the jury would have to resolve.  It is not a finding a Judge can or should be called upon to make (R v H (supra)).

15. There was a further way in which this ground was advanced for the appellant. It was that as s 31A(3) of the Evidence Act refers to "collusion, concoction or suggestion" and s 133(6) refers only to "collusion or suggestion", the legislature intended that the possibility of concoction is still a factor which may be taken into account when considering the likelihood of an accused being prejudiced in their trial on an indictment containing two or more charges of a sexual nature, under s 133. That submission cannot be accepted. It is the same concept. Where two witnesses are giving similar accounts it can only be because they have colluded or the accounts have been suggested to them, in either of which case the accounts are concocted (in that they are false), or because their accounts are true. To allow a Judge to have regard to the possibility of "concoction" in such cases would necessarily be to allow resort to the possibility of "collusion" or "suggestion". The section would be entirely defeated.

16. None of the appellant's grounds have been made out.  That is sufficient to dispose of the appeal.  But the respondent has filed a notice of contention and given that this is one of the first occasions this legislation has come for consideration, it is as well to deal with it.

Notice of contention

1. The respondent contends that the Judge ought to have based his decision to refuse separate trials on the following additional grounds, namely that:

   1.the evidence of each of the four complainants was "relationship evidence" within the meaning of s 31A(1) of the Evidence Act 1906 (as amended) and was admissible evidence on the trials of the complaints of each of the others.

   2.three of the complainants' evidence was admissible to rebut potential lines of defence raised by the accused and was by reason thereof admissible evidence on the trials of the complaints of each of the others.

2. In the circumstances of this case, the only live question with respect to the first contention really is whether the nature of the evidence sought to be relied upon by the State also falls within the statutory description of "relationship evidence". That is because it is the same evidence which his Honour (in my view correctly) found to be "propensity evidence" and to meet the criteria for admissibility in s 31A(2) of the Evidence Act. The question may be shortly answered. Clearly, as a matter of language, the appellant's alleged sexual conduct towards each of the complainants was evidence of his "attitude or conduct" towards each of them, over a period of time. It accordingly is "relationship evidence" as defined. And given his Honour's findings under s 31A(2)(a) and (b) with respect to that evidence, (which have not been demonstrated to have been wrong) it is admissible as such.

3. The second contention goes to the probative value of the evidence.  It is said to be relevant (and hence probative) to rebut possible lines of defence.  It is a question of relevance.

4. The fact that evidence tends to show an accused has been guilty of criminal acts other than those covered by the indictment:

   "… does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused".  (Makin v Attorney-General for New South Wales (supra) at 65)  (My emphasis)

5. The State seeks to adduce evidence from all four complainants at the one trial to rebut potential defences available to the appellant as follows:

   •In relation to KML - specifically counts 1 to 4 - to rebut any possible assertion by the appellant that he only placed his hand down her tracksuit pants because his hands were cold and he wanted to warm them up.  In other words, that he put his hands down her tracksuit pants with no indecent intention and for an innocent purpose.

   •In relation to RKL - specifically count 10 - that his conduct in sliding the bottom of the complainant's bathers across and digitally penetrating her was either accidental or innocent because of an ostensible intention to assist her in trying on the new bathers which he had given to her.

   •In relation to CAM - specifically count 16 - to rebut a potential defence that he touched her on the vagina innocently whilst massaging her in attempting to give her relief for a damaged muscle.

6. The appellant submits the postulated lines of defence are entirely speculative and speculation is an inappropriate basis upon which to determine the admissibility of "highly prejudicial" evidence of other complainants and in turn defeat an application for separate trials.  It is said there is neither evidence nor indication of what defence the appellant may advance.  There has been no notification to the prosecution.  There is nothing by way of answers by the appellant to police officers, which would indicate what might be relied upon by the appellant at trial.

1. The appellant's submission must be rejected.  The appellant has pleaded not guilty.  That plea puts the prosecution to proof of every element of each offence charged - and to exclude any defence which might arise (Woolmington v Director of Public Prosecutions [1935] AC 462; Krakouer v The Queen (1998) 194 CLR 202 at [36]). It is no answer to argue that if the appellant were to raise some particular line of defence during the trial, the State could meet it in rebuttal. The prosecution is always required to offer all its proofs during its own case and before the accused is called upon to present their defence; the prosecution is not permitted to "split its case" (R v Soma (2003) 212 CLR 299). The power to allow further evidence to be called by the prosecution after it has closed its case is discretionary and is sparingly exercised (Parker v The Queen (1982) 41 ALR 576). It has been said the circumstances must be "very special or exceptional" and generally not if the occasion for calling the further evidence ought reasonably to have been foreseen (R v Chin (1985) 157 CLR 671, 676 ‑ 677, 684 ‑ 686; Lawrence v The Queen (1981) 38 ALR 1, 3).

2. In my opinion the evidence is admissible for the purposes identified.  Furthermore, if separate trials were ordered for charges relating to each individual complainant, the jury would not know of the complaints of the other three complainants and would be deprived of probative background evidence which would tend to show that the accused's touching of the three complainants was not accidental or innocent or not indecent.  On the other hand, if the evidence relating to all three complainants is adduced at the one trial, the jury, knowing of the allegations of all complainants, would be able to judge the facts of each allegation in their true context.

3. I would accordingly uphold both grounds on the notice of contention. I would dismiss the appeal. It follows that pursuant to s 26(7) of the CAA I would order that his Honour's refusal to order separate trials be confirmed.

4. MILLER AJA:  I have had the opportunity of reading in draft the reasons for judgment of Roberts‑Smith JA.  I agree that the appeal should be dismissed.

5. I respectfully agree with Roberts‑Smith JA's reasoning in relation to the provisions of s 31A of the Evidence Act1906 (WA) and s 133 of the Criminal Procedure Act 2004 (WA). In particular, I respectfully agree with his Honour's construction of the way in which the provisions of s 133 of the Criminal Procedure Act fall to be determined. 

1. I would, however, dismiss this appeal on the ground that the trial of the appellant had started within the meaning of s 26(6) of the Criminal Appeals Act 2004. Section 26(6) requires that if an appeal is to be brought pursuant to s 26(1)(b) against a refusal of a Judge to order separate trials, the appeal must be brought before the trial of the accused has started, otherwise it must be dismissed. Roberts‑Smith JA has concluded that the expression "before the trial of the accused starts" must be taken to be a reference to the trial commencing once the accused is in the charge of the jury. I respectfully disagree. In my view, the purpose of the section is to prevent appeals against orders refusing separate trials where an application is made to the trial Judge for a separate trial on or after the day upon which the trial of the accused was set to begin.

2. The question of when a trial has commenced is generally governed by the particular statutory provisions of a jurisdiction. The Criminal Code, s 612, provided that the trial of an accused person was deemed to begin when the accused was called upon to plead to the indictment. In R v Diaz [1982] WAR 60, Kennedy J summed up the effect of the relevant provisions of the Criminal Code in the following way (at 63):

   "By virtue of the provisions of s 612 of the Code, as soon as the accused is called upon to plead to the indictment the trial is deemed to have begun. That being so, in my opinion, the accused will then have been 'brought to his trial' within the meaning of the third paragraph of s 608. To hold otherwise would be to deny s 610 its full effect. Once the trial has begun, the court is empowered, pursuant to s 610, and whether a jury has or has not been sworn, to adjourn that trial."

3. The relevant provisions of the Criminal Code have now been repealed:  Criminal Procedure (Consequential and Other Provisions) Act 2004, ss 22 and 24.  It is to be noted, however, that under the provisions of the Criminal Code the commencement of the accused's trial was not dependent upon the jury having been sworn.

4. In the various Australian States there are different statutory provisions which govern the question when the trial of an accused begins.  The High Court has observed that it may well be that the answer to the question requires consideration of the context within which the question arises and it does not admit of a general answer:  Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 at 578.

5. South Australia had, in 1998, a provision in the Criminal Law Consolidation Act 1935 (SA), s 285A which provided that a court before which a person had been arraigned could, if it thought fit, hear and determine any question relating to the admissibility of evidence and any other question of law affecting the conduct of the trial before the jury was empanelled. In Attorney‑General's Reference No 1 of 1988 (1988) 49 SASR 1, King CJ held that in South Australia the trial commenced when the accused having been arraigned before the Judge who was to try him, that Judge embarked upon the hearing and determination of any preliminary questions or upon the empanelling of the jury. In Director of Public Prosecutions, South Australia v B, Gaudron, Gummow and Hayne JJ at [16] ‑ [17] said:

   "This may be contrasted with the position in other States.  Thus, to take one example from the decisions of this Court, it was held in Newell v The King (1936) 55 CLR 707 that a trial in Tasmania commenced on the date of the accused's first arraignment before the Court, s 351(6) of the Criminal Code (Tas) providing that:  'The trial shall be deemed to begin when the accused is called upon to plead.'  (cf Crimes Act 1900 (NSW), s 395; Crimes Act 1958 (Vict), s 391; Criminal Code (Q), s 594; R v Talia [1996] 1 VR 462 at 470 ‑ 476; Bond v The Queen (1992) 62 A Crim R 383 at 394‑395; R v Judge Noud; Ex parte MacNamara [1991] 2 Qd R 86 at 99‑100). There is no equivalent provision in South Australia.

   It may be that the answer to the question - when does the trial begin - requires consideration of the context within which that question arises (cf R v Howard (1992) 29 NSWLR 242 at 246‑250; R v Nicolaidis (1994) 33 NSWLR 364 at 367; R v Symons [1981] VR 297; R v Talia [1996] 1 VR 462 at 470‑476) and does not admit of an answer of the generality given in Attorney-General's Reference No 1 of 1988 (1988) 49 SASR 1. We need not decide if that is so."

6. It has been held in England that in the absence of any statutory provision the trial of an accused person begins when the jury is sworn and the accused is taken into its charge:  R v Tonner [1985] 1 WLR 344 at 357. Watkins LJ, who delivered the judgment of the Court, reviewed (at 355 ‑ 357) numerous authorities in England which were to the effect that the trial begins when the jury is seised of the issue. Reference was also made to a Canadian case, Catherwood v Thompson [1958] OR 326, where it was held that, generally speaking, a trial begins when all preliminary questions have been determined and the jury, or a judge in a non‑jury trial, enter upon the hearing and examination of the facts for the purpose of determining the questions in controversy in the litigation.  At 357 Watkins LJ said of the English position:

   "… our experience as judges in the criminal courts leads us inevitably to the conclusion, unassisted by the authorities to which we have referred in the course of this judgment, that it would be wholly insensible to speak of the commencement of a trial as being other than when the jury have been sworn and take the prisoner into their charge, to try the issues and, having heard the evidence, to say whether he is guilty or not of the charge against him, always remembering that it is inevitably a trial by jury, not by a judge."

7. Whatever may be the position at common law, the High Court has made it clear that the question can only be answered in the context within which it arises, and that normally will be within the statutory framework of a particular jurisdiction.  This was recognised in R v Talia, Centra and Maglitto [1996] 1 VR 462, where Winneke P, Charles JA and Southwell AJA said at 476:

   "A jury trial may well 'commence' at various times depending upon the context in which the concept is being considered.  This was the view expressed by the Court of Criminal Appeal in this State in the case of R v Symons [1981] VR 297: see in particular the views of Young CJ at 299 and Tadgell J at 308ff."

1. R v Talia contains a valuable summary of the development of the process of arraignment and the time at which, at common law, the trial of an accused person began (see particularly page 472).

2. The question in the present case is to be determined by consideration of the provisions of the Criminal Appeals Act s 26(6) and the factual circumstances of the case. It appears that on 9 May 2005, the appellant was brought before the District Court for trial. The 9 May was the trial date which had been set. It was therefore the "trial date" within the meaning of s 3 of the Criminal Procedure Act, namely, "the date set for the start of the trial". 

3. On 9 May, the State presented a notice of discontinuance of an indictment dated 2 February 2004 and presented a fresh indictment dated 9 May 2005.  The only variation between the two indictments seems to be that particulars had been changed on one count on the later indictment and another count had been altered to charge a more serious offence. 

4. A jury panel was present at the District Court for the trial of the appellant on 9 May.  That trial was scheduled for seven days.  It had been listed by the Chief Judge of the District Court on 13 December 2004. 

5. On 6 May 2005, the appellant filed with this Court a notice of appeal in respect of a decision of HH Jackson DCJ refusing an order for separate trials.  That order had been made on 5 November 2004 and prior to the operation of the provisions of the Criminal Appeals Act and associated legislation.  The adjournment of the trial listed for 9 May 2005 was sought to enable the appeal from the decision of HH Jackson DCJ to proceed. 

6. Mazza DCJ reserved his decision on the adjournment application and on the morning of 10 May 2005 dismissed the application.  Application was then made to sever the indictment of 9 May 2005 so that the appellant would have separate trials.  A jury panel, from which the jury was to be empanelled for the trial of the appellant, was still waiting outside the court.

7. The appellant was arraigned on 10 May.  It appears that there had been a failure to arraign him the day before.  This should have been done prior to the application for the adjournment, but nothing turns on it.

8. Prior to the application for separate trials, Mazza DCJ pointed out that 10 May was "supposed to be day two of the trial" and that there was a jury panel waiting.  A decision was made to put the indictment to the appellant and that was done.  Mazza DCJ made several references to "getting a start" with the trial.  From this, counsel for the appellant suggests that it was clear that the trial had not begun.  Whatever Mazza DCJ may have thought, the question whether the trial had begun depends upon an interpretation of the provisions of the Criminal Procedure Act and Criminal Appeals Act, not upon what the learned Judge himself thought.

9. The jury panel was discharged until the afternoon of 10 May.  What happened to the jury panel thereafter is not clear, but the learned Judge's decision on the question of severance of the indictment was not delivered until 12 May, when the application for separate trials was refused.  I note that the transcript of proceedings refers, on 10, 11 and 12 May, to the proceedings being before Mazza DCJ "and a jury of twelve", although it is clear that no jury had been empanelled.  A jury panel seems to have been kept in reserve. 

10. In any event, upon the learned Judge refusing the application for separate trials, an application was made on behalf of the appellant for an adjournment of the trial to enable the appellant to bring an appeal to this Court pursuant to the provisions of s 26(1)(b) of the Criminal Appeals Act.  Mazza DCJ referred to the appellant's right to "an adjournment of this trial" and then said that "if the submission was going to be [that] the trial had not commenced, which I suppose must be, I would agree with that".

11. Notwithstanding his Honour's somewhat tentative suggestion that the trial had commenced, he had, in the same breath, expressed the view that an adjournment "of this trial" would have to be granted.  As I have said, the view of the learned Judge on the question of whether the trial had commenced or whether it had not is of little significance.  The question is to be determined having regard to the facts of the case and the relevant statutory provisions.  As to the facts, there seems to have been considerable confusion about what was happening.  One thing is clear, and that is the trial of the appellant had been listed to begin on 9 May and a jury panel was present for the purpose of a jury of 12 being empanelled.  Presumably, all witnesses, including the young complainants, were at the court, because the anticipation of the State was that the case was going to proceed.  Argument about an adjournment of the trial and whether there should or should not be separate trials proceeded over a period of three days, but ultimately the jury was empanelled and the case began on 12 May.  In my opinion, this was simply a delay in proceedings which had commenced by way of trial listed for and (for the purposes of the Criminal Appeals Act) commencing on 9 May 2005. 

12. Whatever may be the position at common law, I do not think it is necessary under the Criminal Appeals Act for the accused to be "in the charge of the jury" before the trial commences.  The legislative purpose seems to me to be to ensure that all applications for separate trials are made well before the trial date which has been set.  Good reason can be seen for this.  On the trial date, the jury panel is assembled and in the ordinary circumstances, the prosecution would have all complainants present, together with other relevant witnesses.  The need for the complainants to be at the Court would be a traumatic event for them, especially in cases where they are young children.

13. The legislation is clearly intended to guard against what I would term "last‑minute applications" for separate trials on the date fixed for trial and on which witnesses, including the complainants, are present.  This is consistent with the expression of policy contained in the Attorney General's Second Reading Speech upon the introduction of the legislation:  Western Australian, Hansard Parliamentary Debates, Legislative Assembly, 21 September 2004, 6165:

    "This amendment is necessary to ensure that the capacity to institute preliminary appeals does not interfere with the ordinary conduct of trials, and, in particular, to prevent the appeal provision being used as a device to bring a trial to a premature conclusion by the later institution of a preliminary appeal."

14. In written submissions filed by counsel for the appellant, reliance was placed upon provisions of the Criminal Procedure Act, including ss 83, 91, 92, 98, 103, 136 and 142, suggesting that these provisions lead to a conclusion that the trial of an accused person does not start until the accused is informed of the charge and required to plead "for the purpose of commencing the trial". 

15. However, it is unnecessary to deal with these sections.  None of them assists by way of a clear statement as to when the trial of an accused person begins.  Unlike the provisions of the Criminal Code, the Criminal Procedure Act does not define when the trial of an accused person actually begins. The conclusion is to be reached by a consideration of the context in which ss 26(5) and (6) of the Criminal Appeals Act occur and by reference to the policy considerations to which I have referred. 

16. In my view, the trial of the appellant had started at least when he was arraigned. That should have been on 9 May, but it was deferred until 10 May. Arguably, the trial actually began on 9 May when the appellant faced the Court on the day set for trial, but it certainly started when he was arraigned on 10 May. Accordingly, his appeal against the order of Mazza DCJ refusing separate trials was precluded under the provisions of s 26(6) of the Criminal Appeals Act.