Fleming v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0085

MARTY FLEMING (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]So as to prevent any risk of prejudice to the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGE:	PRIEST, KYROU and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13, 16 July 2021
DATE OF JUDGMENT:	29 July 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 206
JUDGMENT APPEALED FROM:	R v [Fleming] [2020] VSC 349

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CRIMINAL LAW — Interlocutory Appeal — Indictment in pending trial contains charges of both murder and rape — Severance refused by trial judge — Whether charges improperly joined — Whether murder and rape are ‘related offences’ — Whether charges ‘founded on the same facts’ — Whether charges ‘form, or are part of, a series of offences of the same or similar character’ — Appeal allowed — Criminal Procedure Act 2009 s 3(1), s 159(3)(c), sch 1 cl 5 — Connelly v DPP [1964] AC 1254; R v Barrell and Wilson (1979) 69 Cr App Rep 250; Ludlow v Metropolitan Police Commissioner [1971] AC 29; De Jesus v The Queen (1986) 68 ALR 1; R v Russell (No 2) [1965] Qd R 334; R v Collins; Ex parte Attorney-General [1996] 1 Qd R 631; R v Reid [1999] 2 VR 605 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr J Gullaci and Ms E Clark	Stary Norton Halphen
For the Respondent:	Dr N Rogers SC with Mr L Cameron	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
NIALL JA:

Introduction

An indictment filed in the Supreme Court charges the applicant with the murder (charge 4) and the antecedent rape (charges 1, 2 and 3), of his wife, ‘FRS’. He has pleaded not guilty.

Among a number of pre-trial applications, the applicant sought, first, severance of the rape charges from the murder charge; and, secondly, the exclusion of various hearsay representations made by FRS, principally concerned with the alleged rapes.

By a ruling dated 18 June 2021, the trial judge refused both applications (‘the ruling’ or ‘the interlocutory decision’).

On 25 June 2021, the judge certified under s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’) that the interlocutory decision concerning various hearsay representations — ‘consideration of which will inevitably raise the issue of joint or separate trials’ — is of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

Pursuant to that certification, the applicant seeks leave to appeal against the interlocutory decision on two grounds, which contend that the trial judge erred:

1. … in refusing to sever charge 4 (‘the murder charge’) from the other counts (‘the rape charges’) on the indictment.
2. … in ruling that hearsay representations made by the deceased, concerning three alleged rape allegations (and uncharged sexual acts), were admissible on the charge of murder.

In our opinion, the first ground must succeed. As we will explain, the charges of rape were not properly joined with the charge of murder. Hence, we will grant leave to appeal, allow the appeal and set aside the interlocutory decision refusing severance. We expect that a fresh indictment for murder[2] — and, perhaps, an indictment containing the present charges 1 to 3 — will be filed.[3]
[2]See CPA, s 164.
[3]In oral argument, senior counsel for the respondent informed us that, should the order refusing severance be set aside, the prosecution would seek to file fresh indictments.

Given our conclusions on the first ground, it is unnecessary to deal with the second. It is plain that the judge’s evidentiary rulings largely proceeded on the understanding that it was proper to try the charge of murder with the charges of rape. In light of our conclusions on the first ground, it is clear that the judge will need to revisit many (if not all) of those rulings. No useful purpose would be served by this Court attempting to pre-empt the judge’s determination of those matters.

The prosecution case

So as to understand the issues arising in the present application, it is necessary to provide an overview of the prosecution case.

Murder: Charge 4

FRS died in the garage of her home shortly after 11.22 am on 23 July 2018. The prosecution alleges that the applicant killed her. In essence, the prosecution alleges that the applicant assaulted FRS, strangled her, then hanged her using rope looped over the sectional garage door. The defence case appears to proceed on the basis that FRS committed suicide.

It seems that FRS and the applicant met in late 2005 or early 2006, and married in March 2007. They had three children together (born in 2009, 2011 and 2013), and settled in Cowes, Phillip Island. FRS was a psychologist. At the time of her death she worked part-time at the Cowes Medical Centre. The applicant was a ‘FIFO’ (fly-in, fly-out) construction worker in Western Australia. His roster was one month of work to one week at home.

FRS and the applicant separated in early 2017. The applicant vacated the family home in Cowes and resided variously in Paynesville, Chelsea Heights and San Remo. Family Court proceedings were initiated with respect to child custody and property.

The evidence will show that police first applied for an intervention order in favour of FRS against the applicant on 28 April 2017. Thereafter, from 19 May 2017, intervention orders prohibited the applicant from attending or being near the former matrimonial home in Cowes. Contact between the applicant and his children ceased in September 2017, when FRS refused to allow further access.

In addition to allegations of abusive and controlling behaviour, FRS complained to police of sexual offending against her by the applicant. On 3 July 2017, she made two sworn statements detailing that alleged offending. The next day, 4 July 2017, the applicant was arrested and interviewed. Police laid charges of rape — embracing what are now charges 1 to 3 of the current indictment — on 24 August 2017. Significantly, those charges were listed for a contested committal hearing at the Latrobe Valley Magistrates’ Court on 30 July 2018 (that is, a week following FRS’s death).

The prosecution alleges that in the morning of Monday, 23 July 2018, the applicant travelled to Cowes by motorcycle. FRS left home at 8.52 am to drive her children to school, before meeting friends for coffee in the shopping district of Cowes. About three minutes after she left home, the applicant approached her residence on foot (and was captured by CCTV footage doing so). At about 9.00 am, a witness observed a man — the prosecution contends that it was the applicant — entering a garden bed in the front yard of the house.

By about 11.22 am FRS had returned home, and had parked her car in the garage. The prosecution alleges that, after she did so, the applicant attacked her. As a result of the attack, FRS suffered a number of injuries, including bruising to the head, and a focal traumatic axonal injury to the brain. It is alleged that the applicant then strangled her with a length of rope, before hanging her using the rope looped over the track of the sectional garage door. He then attempted to make it appear that FRS had committed suicide by hanging herself, including by placing a small step-ladder on its side. When he left, the applicant took FRS’s white top with him. He had sustained a scratch to the nose.

In a post-mortem examination of FRS’s body, forensic pathologist Dr Sarah Parsons observed a significant number of separate injuries consistent with an assault. Dr Parsons found that blunt force trauma had been applied to FRS’s face, neck, and both arms and legs. Microscopic analyses of sections taken from bruises showed no signs of healing, suggesting that the bruising being sustained proximate to the time of death. As we have indicated, there was also evidence of a poorly developed focal traumatic axonal injury to FRS’s brain. Dr Parsons identified the cause of death as being ‘hanging in the setting of multiple blunt force injuries’.

When interviewed by police on 26 July 2018, the applicant gave ‘no comment’ answers. He was charged with murder on 2 August 2018.

Forensic biological examination rendered strong to very strong support for the proposition that the applicant contributed to DNA found on the rope used to hang FRS, including on the outer surface of the knot and the looped section of the rope below the knot. There is also extremely strong support for the proposition that the applicant contributed to DNA found under the fingernails of FRS’s left hand, and very strong support for the same proposition with respect to the fingernails of her right hand.

Rape: Charges 1, 2 and 3

The prosecution case on the three charges of rape (charges 1, 2 and 3) draws largely — although not exclusively — on the hearsay representations made by FRS to police in sworn statements on 3 July 2017.

Charge 1 relates to events in the pantry of the matrimonial home. FRS told police that, on an occasion in 2014, the applicant had returned home from work in Western Australia and, as was his habit, demanded sex. He asked her to go to the bedroom, but she told him that he would ‘have to wait for tonight’. FRS told police that at some stage during the afternoon she entered the large, walk-in pantry. The applicant followed her and locked the pantry door from the inside. He then undid her jeans as she was facing away from him. FRS said something like ‘what are you doing? The kids are out there. No’. She told police that the applicant nonetheless pulled down her underwear and penetrated her vagina. He moved his penis in and out of her vagina for a minute or two before ejaculating inside her vagina. The applicant then unlocked the pantry and left. FRS told police that this sort of thing had been happening since 2009 and that was why she ‘stood there and let it happen’. Telling the applicant ‘no’ did not work so she just stood there and let him have his way.

In addition to FRS’s statements to police, the prosecution relies upon other hearsay representations made by FRS to her friends, together with an alleged admission by the applicant to Terence Melvin, a psychologist, during a joint counselling session with the applicant and FRS on 21 April 2018.

Charge 2 relates to an incident in which the applicant is said to have sexually penetrated FRS in bed when their three-year-old son ‘R’ was present. FRS told police that on an occasion in 2014 the applicant had non-consensual sex with her at their home in Cowes whilst she was asleep and R was in the same bed. She said she woke to the applicant thrusting his penis into her vagina. Since she did not want R to wake and witness what was going on, FRS pushed back into the applicant to create physical distance between her and R. After the applicant ejaculated, he rolled over and went to sleep. FRS then got out of bed and took R back to his own bed.

Charge 3 relates to another occasion when the applicant is alleged to have sexually penetrated FRS in her sleep. FRS told police that, on an occasion in October 2016 when the applicant had returned from Western Australia, they had gone to bed together and she had fallen asleep fully clothed. She later woke up to a feeling of coldness and realised that the applicant had pulled down her pants, put lubricant on his penis and then put his penis in her vagina. FRS said that she froze for a moment before pushing herself off the applicant and getting out of bed. She said to him words to the effect of ‘you can’t do that, I was asleep, that is rape’ before going and sleeping in one of the children’s rooms. FRS told police that this was the last time the applicant had raped her.

In support of charges 2 and 3, the prosecution relies upon other hearsay representations by FRS to a friend and counsellors that there were many occasions during the marriage in which she would wake to find the applicant having sex with her.

The issues in the trial

On the charge of murder, the principal issue is whether the applicant killed FRS, or she committed suicide. With respect to the charges of rape, the issue is whether the incidents of non-consensual sex occurred.

By his defence response, the applicant admits that he attended the Cowes address on 23 July 2018, but he denies that he killed FRS. The applicant asserts that he went to FRS’s address at her invitation, but left after they argued. With respect to the rape charges, the applicant admits to having sex with FRS throughout the course of their relationship, but denies ever engaging in non-consensual sex. He denies that his relationship with FRS was controlling and abusive, and denies allegations of family violence.

Defence submissions to the trial judge

In submissions to the trial judge, counsel leading for the applicant — different counsel appeared in this Court — did not argue that the charges of murder and rape were not properly joined in the indictment. Indeed, counsel conceded the opposite. Thus, early in the course of oral argument, counsel told the judge:

Your Honour, application is made of [scil, for] severance of Charges 1, 2 and 3, being rape charges, from the murder charge, which is Charge 4 on the indictment. To confirm orally, the defence have conceded joinder, that is that the four charges are properly joined on the one indictment; however, defence respectfully submit that your Honour ought exercise your discretion pursuant to s 193 of the Criminal Procedure Act to order severance of Charges 1, 2 and 3, principally on the basis that the accused may be prejudiced in his defence of the murder charge if those rape charges were joined and form part of the one trial.

Instead, relying on ss 193(1)(a) and (c) of the CPA, the applicant’s counsel applied to the trial judge for the charge of murder to be tried separately from the charges of rape. Counsel submitted that the applicant may be prejudiced in his defence to the murder charge if the rape charges are contained on the same indictment. Moreover, counsel relied on the practice that charges for other offences are not usually included on an indictment for murder.[4]
[4]Counsel cited R v Pollitt [1991] 1 VR 299, 302 (‘Pollitt’); R v Debs and Roberts [2005] VSCA 66, [249]; R v AB & Baker (Ruling No 1) [2008] VSC 106 (‘AB’).

Counsel for the applicant argued that the jury will be asked to deal with complex issues of relationship evidence and causation on the murder charge. The need for the jury to consider the elements of rape and the relevance of various items of evidence on each of the rape charges, including complaint evidence, will be particularly complex and create an onerous task for the jury. Furthermore, the jury will be so appalled by the rape allegations that an emotional response will cloud their judgment.

The applicant’s counsel also submitted that the allegations of rape and sexual abuse should not be admitted into evidence. They are not sufficiently temporally connected to the alleged murder; and, when properly analysed, do not bear upon an assessment of the competing hypotheses of suicide or murder.

Counsel also submitted that a large number of hearsay representations by FRS bearing on context and relationship should not be admitted. Among other things, counsel submitted that various hearsay representations were not admissible under ss 65(2)(b) or (c) of the Evidence Act 2008.

Prosecution submissions to the trial judge

Given that it had not been put in issue by the defence, in their submissions to the trial judge counsel for the prosecution did not devote much attention to whether the charges of rape and murder were properly joined in the indictment, their submissions largely being directed to the issue of severance.

In written submissions provided to the trial judge, however, the respondent’s counsel did submit that the joinder of charges in a single indictment is authorised by rule 5 of Schedule 1 of the CPA. Counsel then set out rule 5, the definition of ‘related offences’ in s 3(1) and relevant parts of s 193. The submissions continued:

There are two issues for the Court to consider in relation to severance:
a. Has Rule 5 Schedule 1 of the [CPA] been complied with; and
b. Should the court exercise its discretion under s 193 [of the CPA] to order severance[?].

Passages from Reid[5] and De Jesus[6] were quoted, and counsel then submitted: ‘The statutory words are not technical; they are ordinary words that should be given their ordinary meaning’. Citing Demirok[7] and Reid,[8] counsel submitted that: ‘In exercising its discretion, the court should take into account and balance the entitlement of the accused person to a fair trial without embarrassment or prejudice on the one hand, and the entitlement of the public in the efficient allocation of judicial resources, consistency in verdicts, final and expeditious litigation and witness convenience, on the other’. The written submissions then continued:[9]

45 The charges are founded on the same facts in the sense that there is a sufficient connection or nexus between them. The evidence that is to be led either provides context for the other charges, or else is directly relevant to establishing or negating proof of an element which must be proved in another charge. The accused denies committing any of these offences (consensual sex regarding charges 1–3, causation regarding charge 4). The relationship evidence tends to make it more likely that the accused committed all of the offences as charged. The admissibility of the relationship evidence is so interconnected with the issue of severance that the rape charges cannot be separated from the murder charge.
46 Charges 1–3 are obviously to be regarded as a series of offences of the same or similar character. Charges 1–3 on the one hand, and charge 4 on the other hand, should be regarded as forming ‘a series of offences of the same or similar character’ for the purposes of Rule 5.
47 Should joinder be allowed, then a clear direction concerning separate consideration of the evidence adduced on the various charges. (However the evidence led in respect of charges 1–3 is relevant to charge 4, just as the evidence led in respect of charge 4 is relevant to charges 1–3.)
48 All four charges involve violence against the deceased; indeed her murder is a culmination of that violence. Rule 5 Schedule 1 [of the CPA] is satisfied.

[5]R v Reid [1999] 2 VR 605, 621–2 [163]–[165] (Winneke P, Buchanan and Chernov JJA) (‘Reid’).

[6]De Jesus v The Queen (1986) 68 ALR 1, 15 (Dawson J) (‘De Jesus’).

[7]R v Demirok [1976] VR 244, 255.

[8]Reid, 622 [167].

[9]Emphasis added.

When addressing the issue of severance in oral submissions, senior counsel for the prosecution told the judge that

the prosecution does not accept that there is impermissible prejudice to the accused, if the three rape charges are on the indictment with the murder charge and there are several reasons why the prosecution says this.
Firstly, at a very basic level, the details of the three sexual assaults are not particularly horrifying or sickening as is often the case, particularly with child sexual assault matters. Secondly, they are not numerous allegations of sexual assault. …
…
The third point that the prosecution wants to make is that the directions in our submission would not be so complex or so difficult for a jury to understand. Yes, the prosecution does accept that the evidence is anticipated to be lengthy, with a number of witnesses giving evidence as to certain representations that they've heard, should they be not excluded, as well as their own personal observations. However, there would be I anticipate directions concerning separate consideration, anti-propensity, and non-substitution for all charges.
…
Our final point is that simply because the court rules on the admissibility of certain aspects of hearsay representations being relevant to Charges 1 to 3 … but not to Charge 4, then that does not mean of itself, that the directions will be incomprehensible to a jury. Again, juries are not foolish and can be expected to follow the directions they are given.

Repeating much of what had been put in writing, prosecution counsel submitted that the charges are founded on the same facts in the sense that there is a sufficient connection or nexus between them. The evidence that is to be led either provides context for the other charges, or else is directly relevant to establishing or negating proof of an element which must be proved in another charge. Counsel submitted that the relationship evidence tends to make it more likely that the applicant committed all of the offences as charged. Of significance, counsel submitted that the admissibility of the relationship evidence is so interconnected with the issue of severance that the rape charges cannot be separated from the murder charge. Further, counsel argued that charges 1, 2 and 3 are obviously a series of offences of the same or similar character. Charges 1, 2 and 3 on the one hand, and charge 4 on the other hand, should be regarded as forming a series of offences of the same or similar character. All four charges involve violence against the deceased, her murder being the culmination of that violence.

Counsel also contended that various hearsay representations relating to relationship and context sought to be relied upon by the prosecution were admissible under ss 65(2)(b) and (c), and s 66A, of the Evidence Act 2008.

The ruling

In her ruling, the judge observed that the applicant

concedes that the joinder of the charges is permitted by the [CPA],[10] but argues pursuant to s 193(1) of the CPA that the Court should order that the murder charge be tried separately from the rape charges.

[10]CPA, Rule 5 of Schedule 1 and definition of ‘related offences’ in s 3(1).

For present purposes, it is unnecessary to summarise the judge’s detailed consideration in her ruling of the admissibility of the relationship evidence, or the many hearsay representations relied upon by the prosecution to establish the nature of the relationship between the applicant and his wife. It is enough to say that, having determined relationship evidence to be admissible, and having analysed various hearsay representations relied upon by the prosecution, the judge refused severance, holding that ‘the evidence with respect to all counts is cross-admissible’ and that ‘the joint trial of all counts does not otherwise preclude a fair trial for the [applicant]’.

The judge said:

The indictment comprises only four counts in total. That will not overwhelm an attentive jury.[11] The allegations in the four counts are clear and distinct. At the same time, their inter-relatedness is obvious. That connection extends beyond the common victim. The Crown case is that the imminent hearing of the committal with respect to the rape charges provided (part of the) motive for the murder. The jury may well reason, if it accepts the prosecution argument as to motive, that the allegations of rape are more likely to be truthful and accurate.

[11]R v Smart [1983] 1 VR 265 at 283, 289; R v Reid [1999] VSCA 98, [115-116], [167-169] (per Winneke P, Buchanan and Chernov JJA); R v Walker [2004] VSC 411, [16] (per Teague J, citing R v Renzella (unreported, 7 August 1997, Victorian Court of Appeal)). (Citations as in original.)

Further, the judge said that the jury will not ‘find the elements of murder difficult to understand because of these differences in the rape counts’. The use of the evidence of sexual misconduct other than the charged acts ‘is clear and confined’:

It can be used by the jury in considering the charged acts of rape in the manner already identified. It can also be used, along with the evidence of the charged rapes, as part of the evidence of the relationship between the accused and deceased at the time of the deceased’s death. That evidence is clearly relevant to the motive alleged by the prosecution. It is also relevant to the longevity and intensity of the fear of the accused by the deceased. Therefore it is highly relevant to the factual issue of how and why the accused came to be in the garage of [FRS’s home] on 23 July 2018. And, it is a sub group of the general relationship evidence. Its detail is not of such a kind as to overwhelm the reason of the jury. The uncharged aspects of it are not detailed, other than to describe behaviour of a kind similar to the charged aspects.
The relationship evidence of non-sexual misconduct is also clear and confined … The overwhelming majority of that evidence relates to the period immediately before the accused and deceased separated and thereafter to the date of her death. It [sic] topics are readily identifiable. First, the deceased’s attempts to separate and the accused’s reaction. Second, allegations of controlling behaviour by the accused, such as monitoring the movements and electronics of the deceased, belittling of or being aggressive to the deceased and superintending domestic chores, and the deceased’s reaction to that behaviour. Third, threats made by the deceased. Fourth, expressions of fear of the accused by the deceased. Fifth, statements by the deceased to her new partner.
That the evidence may be so readily categorised and framed for the jury indicates that it will not add undue complexity to the trial. …

Ultimately, the judge observed:

Thus, in my view, the architecture of the trial will not be unduly complex. The jury will well be able to understand the differential admission and the use they may make of the relationship evidence. That evidence of controlling behaviour and fear contemporaneous with the rape allegations may be used in respect of them, but such evidence relating to the later period of separation may not is a concept a reasonable jury will readily grasp. And, the task of the trial judge in directing the jury and otherwise ensuring a fair trial of the accused will be manageable.
Finally, I note the obvious convenience to the administration of justice if the charges are heard together, given the commonality of witnesses and evidence. Of course, this factor alone would be insufficient to maintain the joinder of charges if there was otherwise prejudice to the accused.

Key provisions

Before turning to the submissions of the parties, it is necessary to advert to several of the CPA’s key provisions.

Section 159(1) of the CPA provides that, subject to the Public Prosecutions Act 1994, ‘the DPP or a Crown Prosecutor in the name of the DPP may file an indictment’. Apart from other requirements, by virtue of s 159(3)(c), an indictment must ‘comply with Schedule 1’. Significantly, cl 5(1) of Schedule 1 provides that an indictment ‘may contain charges for related offences’.[12] Also significantly, s 3(1) defines ‘related offences’ as follows:[13]

related offences means offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character’.
[12]On the assumption that charges are properly joined, s 170 of the CPA provides (so far as relevant) that ‘the charges must be heard together unless an order is made under section 193’.
[13]Emphasis added.

Submissions in this Court

As we have said, the applicant’s counsel did not submit to the trial judge that the rape charges and the charge of murder were improperly joined in the indictment. Indeed, as we have mentioned, counsel for the applicant ‘conceded joinder, that is that the four charges are properly joined in the one indictment’.[14] It is unsurprising, therefore, that the trial judge approached the issue of severance on the basis of that concession.[15]
[14]See [27] above.
[15]See [38] above.

Notwithstanding the defence concession, however, an issue arose in this Court as to whether it should continue to be accepted. After full argument, we have concluded that it should not. As we will shortly explain, we consider that the offence of murder and the offences of rape alleged in this case are not ‘related offences’. That being so, the charge of murder could not properly have been joined in the indictment with the charges of rape. Given those circumstances, the issue of severance should not have arisen.

Turning to the submissions in this Court, the respondent’s counsel initially were prepared to accept that the alleged offence of murder, and the offences of rape, did not fall within the second limb of the definition of ‘related offences’. Hence, at the outset of the hearing of the present application on 13 July 2021, in answer to a question from the Court senior counsel for the respondent expressly conceded that the rape charges on the one hand, and the murder charge on the other, were not part of ‘a series of offences of the same or a similar character’. The Court then asked counsel to explain how the rape and murder charges were said to be ‘founded on the same facts’. In the face of that question, it soon became evident that counsel at neither end of the Bar table had come prepared to make considered submissions on the issue. As a result, the hearing was adjourned for several days, and the parties were directed to file supplementary written submissions addressed specifically to the issue of joinder.

In their supplementary written submissions, counsel for the applicant resiled from the concession before the trial judge that the offences ‘form, or are part of, a series of offences of the same or a similar character’, noting that the concession was made ‘on a basis the prosecution now disavow’. Counsel then submitted that the offences were not ‘founded on the same facts’. Having cited the passage from Barrell and Wilson[16] extracted below;[17] and, applying the ‘rationale’ of that case to the present, counsel submitted that the rape charges were not ‘subsidiary charges’ to the ‘primary charge’ of murder. This was not a case where the subsidiary rape charges could not have been alleged but for the facts which gave rise to the primary charge of murder. Joinder of the rape and murder charges was therefore improper.
[16]R v Barrell and Wilson (1979) 69 Cr App Rep 250 (Shaw LJ, Boreham and Purchas JJ) (‘Barrell and Wilson’).
[17]At [76].

Somewhat remarkably, in their supplementary written submissions counsel for the respondent retreated from the concession made by senior counsel on the first day of the hearing in this Court that the charges were not part of a series of offences of the same or similar character. Counsel noted that ‘experienced defence counsel’ had ‘conceded joinder at the pre-trial argument’. Citing Reid[18] and Huynh,[19] the respondent’s counsel submitted that cl 5(1) of Schedule 1 ‘should receive a liberal interpretation’, and they contended:

The charges are ‘part of a series of offences of the same or similar character’. That is so despite the supposed ‘concession’ made by the prosecution in answer to a question from Priest JA on 13 July 2021. As his Honour pointed out, it is for this Court to be satisfied, regardless of concessions, that the charges were properly joined on the indictment.

[18]Reid, 621 [163].

[19]Huynh v The Queen [2020] VSCA 222, [38]–[40] (Priest JA, Maxwell P and Weinberg JA agreeing).

The respondent’s counsel then submitted that the ‘connection between all of the charges lies in the nature of the relationship between the accused and the deceased’. They were ‘intimate partners’ at the time the events founding both charges 1 to 3, and charge 4, were committed. The relationship between them ‘had been coercive and controlling (from the deceased’s point of view) for many years’. Counsel submitted that there were ‘many representations made by the deceased going to her fear of the accused’, and that the ‘fear held by the deceased of the accused continued up until the date of her death’. The respondent’s counsel also submitted that the ‘deceased was the primary instigator of the separation’, to which ‘the accused was resistant’; applications for family violence intervention orders were ‘made by the deceased against the accused’; the ‘accused was charged with rapes as a result of the deceased’s complaints to police’; and all four charges ‘are offences of violence allegedly committed by the accused on the deceased’. Counsel submitted that the ‘context of all of the alleged offending is important’: ‘In 2014 the relationship involved sexual violence; it became more coercive and controlling (from the deceased’s point of view); and it continued to worsen, particularly after separation’.

Citing Dragojlovic,[20] counsel for the respondent submitted that ‘the admissibility of the relationship evidence is so interconnected with the issue of severance that the rape charges cannot be separated from the murder charge’. Ultimately, the respondent’s counsel contended:

The joinder of the multiple charges is appropriate and proper as there is a sufficient connection or nexus between them. The nexus is established as the evidence of each of the charged counts is cross-admissible.

[20]Dragojlovic v The Queen (2013) 40 VR 71, 115 [196] (Redlich and Weinberg JJA, and Bell AJA) (‘Dragojlovic’).

When the hearing resumed in this Court on 16 July 2021, the thrust of the oral submissions by counsel for each side reflected those that had been reduced to writing.

Thus, the applicant’s counsel contended that the offence of murder charged in this case is not of the same or a similar character as the offences of rape. Counsel submitted that whist violence ‘generically’ is relied on by the prosecution, ‘the violence is not similar’. There is no suggestion ‘that as a prelude to the rape, the deceased was punched or she was strangled or she was kicked’, penetration being ‘relied on as the violence’. The sole similarity, counsel submitted, that ‘you’ve really got is the same victim’. Counsel submitted that the relationship evidence is not a matter of similarity, but simply the manner by which it is sought to prove the offences.

Counsel for the applicant submitted further that the offences charged in the indictment were not ‘founded on the same facts’. The alleged rapes and the murder are temporally disconnected; and, applying the ‘rationale’ of Barrell and Wilson, the rape charges were not ‘subsidiary charges’ to the ‘primary charge’ of murder. The relationship evidence does not alone ‘support an assertion that these offences, assuming they have been committed by the applicant, are based on the same facts’.

On the issue whether the offences form, or were part of, a series of offences of the same or a similar character, senior counsel for the respondent agreed that rape and murder have different elements, albeit, so counsel argued, that ‘they are offences of violence’. Counsel submitted that, so far as the rapes were concerned, the ‘violence’ was the penile penetration of the vagina. Senior counsel agreed that, beyond the penetration, the alleged rapes were not accompanied by other overt violence. Thus, it was not claimed that the applicant struck his wife or strangled her, let alone used rope to asphyxiate her. Counsel submitted that ‘there was sexual violence, albeit the fact of penetration of penis-vagina with no accompanying physical assaults’. Indeed, when pressed, senior counsel for the respondent agreed with the proposition that ‘the only two things that are said to be similar is the violence in the rapes constituted by the penetration, and secondly that the victim in each case was [the applicant’s] wife’. Beyond that, so counsel submitted, the similarity arose from ‘all of the offences being linked to the nature of the relationship’.

As to whether the offences were ‘founded on the same facts’, the respondent’s counsel submitted that the four offences charged in the indictment are founded on the same facts because ‘the evidence to prove each charge is the same’. Senior counsel contended orally that it was FRS’s report to police about the alleged rapes that led to her murder. She submitted: ‘The murder is inexplicable, we say, without the evidence of the rapes’. The respondent’s ultimate position on the issue is reflected in the following piece of argument, which followed upon senior counsel having been taken to the approach adopted by Fitzgerald P in Collins:[21]

[JUDGE]: … Now, carrying out the same exercise here, assuming that’s a legitimate way of doing it, what are the facts which are foundational of both the murder and the rapes? And is it only the relationship evidence or is it something else?
[SENIOR COUNSEL]: No, I think it has to be – the answer to that has to be the relationship evidence. ... The relationship evidence broadly.

[21]See [79] below.

In our opinion, the respondent’s submissions must be rejected. As we have indicated, we consider that the charges of rape were not properly joined in the indictment with the charge of murder.

Discussion
The definition of ‘related offences’

It is plain, in our view, that the word or in the definition of ‘related offences’ operates disjunctively. It is thus clear that the definition has two distinct limbs. The practical effect is that cl 5(1) of Schedule 1 permits an indictment to contain charges for more than one offence only in two circumstances: first, if the offences ‘are founded on the same facts’; or, secondly, if the offences ‘form, or are part of, a series of offences of the same or a similar character’. It will be noted in that regard that the first limb invites attention to whether the relevant offences are ‘founded’ on the same ‘facts’; and the second limb focusses on whether the offences ‘form or are part of a series’ of offences of the same or a similar ‘character’.

The roots of the definition ‘related offences’ in s 3(1) of the CPA may be traced to the provisions of the Indictments Act 1915 (UK). As Lord Devlin explained in Connelly,[22] prior to 1915 there was a rule of practice forbidding a prosecutor from including more than one felony in an indictment, and a rule of law forbidding a prosecutor from including both felonies and misdemeanours in an indictment.[23] By 1915, however, ‘a general rule of practice virtually forbidding the joinder of felonies while allowing the joinder of misdemeanours had outlived its usefulness’, the distinction between felony and misdemeanour no longer being important.[24] Hence, s 4 of the Indictments Act 1915 for the first time permitted charges for felony and misdemeanour to be joined in the one indictment. Rule 3 of Schedule 1 of that Act provided: ‘Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character’.[25] Victoria (and some other Australian jurisdictions) followed the English lead by enacting similar provisions.[26]
[22]Connelly v DPP [1964] AC 1254, 1349 (‘Connelly’).
[23]Ibid 1349; cf De Jesus, 14 (Dawson J); and see Ludlow v Metropolitan Police Commissioner [1971] AC 29, 36 (Lord Pearson) (‘Ludlow’).
[24]Connelly, 1350. See also R v Hofschuster (1992) 110 FLR 385, 387–8 (Mildren J) (‘Hofschuster’).
[25]Connelly, 1351; Hofschuster, 388 .
[26]For example, rule 2 of the Seventh Schedule to the Crimes Act 1928 provided:
Charges for any offences whether felonies or misdemeanours may be joined in the same presentment if those charges are founded on the same facts or form or are a part of a series of offences of the same or a similar character.

In this State, the immediate forerunner to cl 5(1) of Schedule 1 of the CPA was rule 2 of the (now repealed) ‘Presentment Rules’ in the Sixth Schedule to the Crimes Act 1958, which Batt JA described in GAS as having both a ‘liberalising and a restrictive effect’ upon the power of the prosecution to join charges in the same indictment.[27] Hence, Brennan J had observed in Ryan:[28]

When the applicant in this case was tried and sentenced, rule 2 in the Sixth Sch. to the Crimes Act 1958 (Vict.) provided:

‘Charges for any offences whether felonies or misdemeanours may be joined in the same presentment if those charges are founded on the same facts or form or are a part of a series of offences of the same or a similar character.’
The rule annuls the prohibition on joinder of a count of felony with a count of misdemeanour (see Clayton-Wright[29]) and it confines the joinder of counts to cases where the charges in the presentment are connected in one or other of the ways mentioned in the rule. The right of the Crown to join in the one indictment two or more felony charges or two or more misdemeanour charges which are not connected (Castro v The Queen[30]) is thus modified. The effect of the rule in confining the joinder of counts is important to the orderly administration of criminal justice both at trial and on appeal. ...
[27]R v GAS [1998] 3 VR 862, 881.
[28]Ryan v The Queen (1982) 149 CLR 1, 22 (citation as in original).
[29](1948) 33 Cr App R 22.
[30](1881) LR 6 App Cas 229, at pp 244-245.

Are the charged offences a series of the same or similar character?

As we have mentioned, having initially conceded in oral argument in this Court that the charges of rape and murder were not part of a series of offences of the same or a similar character, the respondent’s counsel ultimately sought to persuade us that the second limb of the definition of ‘related offences’ was engaged. It is convenient to deal first with that issue.

Ludlow is oft-cited in this general area of discourse. The appellant in that case was tried on an indictment that charged him with one count of attempted larceny, and one count of robbery with violence. Although the alleged offences occurred at public houses in the same geographical area, they occurred 16 days apart, and the circumstances of the offences were different. Hence, on the first charge the appellant had been seen emerging from the window of a public house, in circumstances that suggested he had been attempting to steal; and the second charge related to an incident in which the appellant tendered a bank note to a barman for drinks, before punching him and snatching back the note. A point of law was certified for the House of Lords as follows: ‘Whether on the facts of this case the joinder of counts 1 and 3 in the same indictment and the joint trial thereof was right in law particularly having regard to the Indictments Act, 1915, Schedule 1, rule 3’.

Lord Pearson, with whom the other Law Lords[31] agreed, observed that the Indictments Act 1915 contained a broad, general authorisation for the joinder of charges, but that rule 3 introduced a limitation: charges may be joined in one indictment if they are founded on the same facts, or form or are a part of a series of offences of the same or a similar character. Section 5(3) then provided a ‘safeguard’, so that, even if charges were properly joined according to the rule, the trial judge retained a discretionary power to order separate trials if a joint trial of the charges might prejudice or embarrass the accused in his defence.[32] His Lordship spelled out the approach:[33]

The first step is to ascertain whether the two charges in the present case were properly joined according to the rule. They were not founded on the same facts. Did they comply with the alternative condition that they should form or be a part of a series of offences of the same or a similar character? This question can be narrowed, because these two offences were not presented as being part of some larger series of offences and they were not of the same character. Thus the question comes to be whether these two offences formed a series of offences of a similar character. There are two elements in that question.

[31]Lord Hodson, Lord Donovan, Lord Wilberforce and Lord Diplock.

[32]Ludlow, 38 (Lord Pearson).

[33]Ibid.

In answering the first element of the question — were the two offences a series? — Lord Pearson expressed his agreement with the decision of the Court of Appeal of England and Wales in Kray,[34] holding that two offences could constitute a ‘series’ within the meaning of the rule. As to the second element of the question — were the two offences ‘a series of offences of a similar character’ within the meaning of the rule? — his Lordship said:[35]
[34]R v Kray [1970] 1 QB 125 (‘Kray’).
[35]Ludlow, 39.

It seems to me that one should envisage the persons who normally have to consider whether two or more offences are of a similar character, and such persons include the draftsman of the indictment, counsel considering whether an application should be made for quashing of the indictment or for separate trials and the judge deciding such an application. Any of them would naturally and properly take into account both the intended or actual contents of the indictment and such knowledge as he has of the alleged facts of the case. A number of passages in judgments were cited, and I think the proper conclusion to be drawn from the judgments as a whole is that both the law and the facts have been and should be taken into account in deciding whether offences are similar or dissimilar in character.
In my opinion, however, it is important to notice that there has to be a series of offences of a similar character. For this purpose there has to be some nexus between the offences. Counsel criticised the wording of passages in judgments appearing to say that there cannot be similarity of character without a nexus. But I think this criticism, if it has any validity, applies only to the wording, and not to the substance, because when regard is had to the requirement of a series of similar offences it is right to look for a nexus. Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.

Lord Pearson further observed:[36]

In my opinion, there was in the present case a sufficient nexus between the two offences to make them a ‘series of offences of a similar character’ within the meaning of the rule. They were similar both in law and in act. They had the same essential ingredient of actual or attempted theft, and they involved stealing or attempting to steal in neighbouring public-houses at a time interval of only 16 days.

[36]Ibid.

It follows from Ludlow that, in determining whether offences form or are part of a series of the same or a similar character, it is necessary that ‘both the law and the facts … should be taken into account’. For offences to fit that description, there must be some nexus — or feature of similarity — ‘which in all the circumstances of the case enables the offences to be described as a series’.

De Jesus was a case in which the appellant was tried on an indictment containing charges relating to two separate incidents of rape. The alleged rapes involved different complainants, and were separated in time by a month. On the first charge, the ‘defence’ was alibi; and on the second, consent. Although there were points of both similarity and dissimilarity between the alleged offences, the prosecution did not allege that the evidence of one rape was admissible on the charge of the other. The defence conceded that the offences were ‘founded on the same facts’, and thus fell within the first limb of the proviso to s 585 of the Criminal Code (WA), but sought severance on the basis that the charged offences did not fall within the second limb. By a majority,[37] the High Court held that the charges were improperly joined. Having set out the text of s 585, Dawson J said:[38]

It was under the last part of the section that application was made to the trial judge for separate trials in this case, it being conceded that joinder was permissible under the first part of the section. I am inclined to think that the concession was correctly made. Even though only two counts of rape were charged, it is now clear that two offences might amount to a series even if in another context such a limited number might be insufficient. In R v Kray [1970] 1 QB 125 at 130, it was pointed out that this view had been accepted for 50 years and that any other view would produce the perverse result that ‘whereas three murders could be charged in the same indictment two could not’. See also Ludlow [[1971] AC 29] at 38 and R v Anderson (1973) 5 SASR 256 at 265.
However, for two or more offences to constitute a series there must be a nexus or a connection between them. This, I think, is something different from the express requirement in s 585 that the offences must be of the same or a similar character. Whatever may historically be behind the use of those words (cf Archbold’s Criminal Pleading Evidence & Practice, 42nd ed at para 1–77), as a matter of construction the requirement in my view refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance. Thus offences of rape are of the same kind and other offences of a sexual character, such as indecent assault, may be offences of a similar kind to rape.
Similarity may also indicate a nexus, but similarity of that kind relates to the facts alleged by the prosecution to constitute the offences rather than to their legal characteristics. The distinction may not be one which can be maintained with total precision, but it is useful because otherwise the expression used in s 585 — ‘a series of offences of the same or a similar character’ — is somewhat tautological, since similarity is itself one of the hallmarks of a series. Thus it was that Lord Pearson remarked in Ludlow at 39 that: ‘Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series’. Even in that statement there is an element of circumlocution, but it is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a ‘series’ without straining the word beyond the meaning which it is reasonably capable of bearing.

[37]Gibbs CJ, Brennan and Dawson JJ; Mason and Deane JJ jointly dissenting.

[38]De Jesus, 15 (emphasis added to this and passages following).

Among other things, the following may be drawn from De Jesus. First, for two or more offences to be a ‘series’, there must be a nexus or a connection between them, so much being different from the express requirement that the offences must be of ‘the same or a similar character’. Secondly, similarity indicating a nexus relates to the facts alleged by the prosecution to constitute the offences rather than to their legal characteristics. Thirdly, the second limb does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. There must be a sufficient correlation to enable the offences to be described as a ‘series’ without straining the word beyond the meaning which it is reasonably capable of bearing.

We would have little difficulty in concluding in the present case that the alleged incidents of rape founding charges 1 to 3 ‘form, or are part of, a series of offences of the same or a similar character’. Indeed, the applicant did not contend otherwise. Not only do the offences share the same ingredients, but they also bear factual similarities. The charge of murder, however, stands in a different category. In our opinion, it cannot properly be characterised as part of a series of offences — the other offences in the putative series being the three alleged offences of rape — of the same or a similar character.

As was made clear by Dawson J in De Jesus, the requirement that offences must be of the same or a similar character ‘refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance’.[39] Self-evidently, murder and rape elementally are not similar offences. Unlike the offences considered in Ludlow, they do not share ‘the same essential ingredient’ (or ingredients).
[39]See [66] above.

Moreover, quite apart from the fact that murder and rape are not ‘legally the same or similar in character’, the circumstances of the offences of murder and the rapes charged in this case are factually disparate. In our opinion, there is insufficient correlation between them to enable the offences to be described as a ‘series‘. To describe them as such would be ‘straining the word [series] beyond the meaning which it is reasonably capable of bearing’. We consider that, apart from the fact that the four offences involve a common victim, there is no other feature of similarity that connects them. Thus, other than the ‘violence’ constituted by penetration, the alleged rapes were not accompanied by any type of physical assault whatsoever, let alone the kind of physical violence which, on the prosecution case, must have been a prelude to, and culminated in, FRS’s hanging.

Finally, we consider that the relationship evidence — which, so it seems to us, the respondent’s counsel advanced as being the principal feature of similarity — is not a feature of similarity between the ‘offences’. It is simply an aspect of the evidence said to be common in proof of both the alleged murder and the rapes. The identified similarity was in the evidence going in proof of the offences, rather than attaching to the offences themselves.

The offence of murder, and the offences of rape, alleged in the present case did not form, and were not part of a series of offences of the same or a similar category. They did not fall within the second limb of the definition of ‘related offences’. Their joinder under that limb therefore was not permitted.

Are the offences founded on the same facts?

We are also of the view that the offence of murder, and the offences of rape, in the instant case are not ‘founded on the same facts’. Hence, their joinder was not permitted pursuant to the first limb of the definition of ‘related offences’.

It will be remembered that counsel for the respondent submitted that the four offences charged in the indictment are ‘founded on the same facts’, because ‘the evidence to prove each charge is the same’, and the murder is ‘inexplicable … without the evidence of the rapes’.

Both parties referred in argument to Barrell and Wilson, an authority commonly cited in cases in which the joinder of offences is said to be ‘founded on the same facts’. In that case, the Court of Appeal of England and Wales had cause to consider rule 9 of the Indictments Rules 1971 — a successor to the Indictments Act 1915 — which provided: ‘Charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character’.[40] Ultimately, the Court held that rule 9 authorised the joinder in the one indictment of a charge for the ‘subsidiary offence’ of attempting to pervert the course of justice with charges for the ‘primary offences’ of affray and assault occasioning actual bodily harm.
[40]It will be noticed that the only material difference between this definition and that in the Indictments Act 1915 is that the words ‘whether felonies or misdemeanours’ have been excised.

The facts of Barrell and Wilson briefly were these. Both appellants, and a third man, Mizon, attacked the manager and an employee of a discotheque. As a result, they were charged with affray (charge 1) and assault occasioning actual bodily harm (charge 2). Two months later, Wilson allegedly offered the manager money, in an effort to induce him to modify his evidence. That conduct led to a charge of attempting to pervert the course of justice (charge 3). At trial, the judge refused to sever charge 3. Both appellants were convicted of affray; Wilson was convicted of the assault (to which Barrel had earlier pleaded guilty); and Wilson alone was convicted of attempting to pervert the course of justice. On appeal, counsel for Wilson submitted that charge 3 was not ‘founded on the same facts’ as the affray and assault occasioning actual bodily harm. Instead, so counsel argued, it derived from a new and different set of facts which was not only different in its nature, but also separated by a substantial interval of time from the set of facts which gave rise to counts 1 and 2. Counsel contended that to justify joinder under rule 9 ‘the subsidiary offence must … be an integral part of the primary offences and must not be separated from them by any distance in time’.[41] Rejecting that contention, Shaw LJ (delivering the judgment of the Court) said:[42]

This contention rests on too narrow a construction of the language of the statute and the relevant rule. The phrase ‘founded on the same facts’ does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin. If the charge described by counsel as the subsidiary charge is one that could not have been alleged but for the facts which give rise to what he called the primary charge, then it is true to say for the purposes of rule 9 that those charges are founded, that is to say have their origin, in the same facts and can legitimately be joined in the same indictment.

[41]Barrell and Wilson, 252.

[42]Ibid 252-3 (emphasis added).

According to the test in Barrell and Wilson — putting to one side the wisdom of attempting to substitute for the statutory language[43] — charges will be ‘founded on the same facts’ if they ‘have a common factual origin’. Such common factual origin will exist if ‘the subsidiary charge is one that could not have been alleged but for the facts which give rise to … the primary charge’.
[43]See Catlow v Accident Compensation Commission (1989) 167 CLR 543, 550 (Brennan and Gaudron JJ); Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J), 437 (Toohey J); Marshall v Director‐General, Department of Transport (2001) 205 CLR 603, 632–3 [62] (Hayne J); Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259, 270 [31] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 265 [33]–[34] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Brennan v Comcare (1994) 50 FCR 555, 572–3 (Gummow J); Ogden Industries Pty Ltd v Lucas [1970] AC 113, 127 (Lord Reid, Lord Hodson, Lord Upjohn, Lord Donovan and Lord Pearson); Bainiv The Queen (2012) 246 CLR 469, 476 [14] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Roberts v The Queen [2020] VSCA 277, [23].

Collins[44] was concerned with s 567(2) of the Criminal Code (Qld), which provided that charges for more than one indictable offence ‘may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose’. The indictment in that case contained three charges. Count 1 charged arson of a building; count 2 charged breaking, entering and stealing in relation to the same building; and count 3 charged — as an alternative to count 2 — receiving property stolen from the building. The first two counts related to a breaking at a warehouse on 13 June 1993, during which money, a shotgun and jewellery, were stolen from it. At about the time of the break-in, the warehouse was set on fire. Four days after the fire, a police agent purchased the shotgun stolen during the break-in from the applicant; and, a day later, the stolen jewellery was also purchased. The trial judge ruled that the joinder of the arson count with the alternative receiving count was not permitted by s 567(2), so that the indictment was bad. Questions reserved for the Queensland Court of Appeal under s 669A of the Code included: ‘Was the trial judge correct in ruling that a count of arson was not able to be joined with counts of breaking, entering and stealing, and (in the alternative) receiving?’.
[44]R v Collins; Ex parte Attorney-General [1996] 1 Qd R 631 (Fitzgerald P, McPherson JA and Lee J) (‘Collins’).

Fitzgerald P observed that, in order to determine whether the first and third charges were ‘founded on the same facts’, it was helpful to identify the ‘facts’ on which each of those charges was ‘founded’, and ‘which, if any, of the facts were the foundation of both charges’. Having done so, he could not discern any basis upon which it could be contended that the two charges were not founded on the same facts.[45]
[45]Ibid 634.

In their joint judgment, McPherson JA and Lee J observed that s 567(1) of the Code ‘sets up a general prohibition in relation to the joinder of multiple counts in the one indictment’, to which s 567(2) ‘sets up an exception’. They then said:[46]
[46]Ibid 636–7.

It has long been accepted that the basic criterion for the joinder of counts under subs (2) is the existence of some connection or nexus between them, each limb of the subsection being illustrative of the circumstances giving rise to that nexus: Ludlow v Metropolitan Police Commissioner [1971] AC 29, 39; R v Kray [1970] 1 QB 125, 130–131; R v Clayton-Wright [1948] 2 All ER 763, 765; R v Cranston [1988] 1 Qd R 159, 164. In defining in broad terms what connection is sufficient for this purpose, an examination of the cases demonstrates that an appropriately liberal reading be given to the text of the section, consistent with its underlying policy. That policy, it was stated in Kray, is to enable the joinder of charges which may be ‘properly and conveniently’ dealt with together: 131; see also Ludlow, 38. …

McPherson JA and Lee J also observed:[47]

The counts in the present indictment plainly display the requisite nexus. If nothing else, all of the offences charged had their genesis in the events of 13 June 1993 and in that sense attract the operation of the first limb of the subsection. For offences to be ‘founded on the same facts’ they must have a ‘common factual origin’: R v Barrell and Wilson (1979) 69 Cr App R 250; Bellman [[1989] AC 836], 850; Cranston [[1988] 1 Qd R 159], 162. But that is a phrase which is not to be narrowly construed. In particular, it is not necessary for the offences to have arisen contemporaneously or to involve precisely the same facts. All that is necessary is for them to be traceable, either in time, place or circumstance, to common events.

[47]Ibid 637 (emphasis added).

Reid concerned the application of the immediate forebear of cl 5(1) of Schedule 1 of the CPA. When discussing the policy underpinning rule 2 of the Presentment Rules, this Court said:[48]

Section 371 of the Crimes Act provides that, subject to the rules under that Act, charges for more than one indictable offence may be joined in the same presentment.^[[49]] Rule 2 provides that charges for any offences may be joined in the same presentment if they are founded on the same facts or form or are part of a series of offences of the same or similar character. In our view, each of the requirements contemplated by the rule has been made out in this case (although it would have been sufficient if only one had been satisfied).
Before analysing the two requirements, it is desirable to mention that it has long been accepted that the rule should receive a liberal interpretation consistent with the policy underlying it, namely, to enable the joinder of charges which may be ‘properly and conveniently’ dealt with together. This involves the striking of a balance between on the one hand, the need to ensure that by charging the accused with separate offences in the one presentment he or she is not thereby unduly prejudiced or embarrassed at trial by reason of evidence being led in respect of each of the charges and, on the other, the interest of the public in the efficient allocation of judicial resources, consistency in verdicts and expeditious and final litigation as well as with the convenience of witnesses: R v Demirok at 254-5; Ludlow v Metropolitan Police Commissioner [1971] AC 29; R v Kray [1970] 1 QB 125 at 130-1; R v Collins; Ex parte Attorney-General [1996] 1 Qd R 631 at 636-7.
The requirement that the charges are to be founded on the same facts does not mean that the facts in relation to the charges must be identical in substance or be virtually contemporaneous. It is sufficient if the charges have a common factual origin (R v Barrell and Wilson (1979) 69 Cr App R 250 at 252-3), or if there is a sufficient connection or nexus between them (R v Collins at 636). In order to determine if the relevant nexus exists, one has regard to the charges and, broadly, the evidence that is to be led in relation to them by the parties. …

[48]Reid, 621 [162]–[164] (emphasis added).

[49]Compare s 159(3)(c) of the CPA.

In Reid, the applicant was convicted of a number of charges arising from the collapse of an airline company of which he was a director. The charges alleged multiple offences of theft, obtaining property by deception and false accounting under State law, and also multiple offences of failing to act honestly as a director, falsifying books of a company and furnishing false information under the Commonwealth Corporations Law. In this Court, a challenge by the applicant to the joinder of the charges failed, it being held that the charges both were founded on the same facts, and were part of a series of offences of the same or similar character. The Court held that the charges were founded on the same facts given that the factual origin of the charges, and the nexus between them, was the applicant’s endeavours to mollify his financing bank and prevent it from pressing him to repay the large debt he owed it. So as to do so, he falsely represented that he was owed large sums by another entity. He hid the true position through interconnected thefts of money and the provision of false documentation and information.

Although not of relevance to the present discussion, we digress to note that the Court in Reid also held that the offences were part of a series of the same or similar character:[50]

It is also plain that the offences in question form a series of transactions (or offences) which are of the same or similar character within the meaning of r 2. It is the presence of a nexus or connection between the charges that establishes they constitute a series of such transactions or offences: De Jesus v R (1986) 68 ALR 1 at 15; 22 A Crim R 375 at 389; Ludlow v Metropolitan Police Commissioner at 39-40; R v Kray at 130-1; R v Collins at 636; R v Clayton-Wright [1948] 2 All E.R. 763 at 765. That the counts form part of a series of interconnected transactions or that there is a sufficient nexus that exists between them in this case can be seen from the fact that these counts and the evidence led in respect of them, are so closely interwoven that it would not have been appropriate to sever them.

[50]Reid, 622 [165] (emphasis added).

In Dragojlovic,[51] the two applicants were husband and wife. They were both directors and shareholders of a family company, ‘Jontaz’. The wife was also an employee of a Commonwealth agency, Centrelink, and had access to its computerised records. Jontaz was a labour hire company, providing workers to farmers’ market gardens. The company was obliged to pay income tax based on the total fees it received from the farmers, and to remit group tax deducted from the workers’ wages to the Australian Taxation Office. By understating both the wages of the workers and the income earned by Jontaz, the applicants succeeded in evading both group tax and income tax. As an employee of Centrelink, the wife accessed Centrelink computer records relating to the workers supplied by Jontaz, with a view to accessing information about them that might assist her and her husband in perpetrating the tax frauds. Each applicant was charged with 20 counts of defrauding the Commonwealth pursuant to s 29D of the Crimes Act 1914 (Cth) (counts 1 to 20), and the wife was charged with a further 48 counts of intentionally and without authority obtaining access to data stored in a Commonwealth computer pursuant to s 76B(2) (counts 21 to 68).
[51]Dragojlovic, 115 [196].

Rejecting the contention that the judge erred in failing to order severance of the counts under s 76B(2) from those under s 29DA, the Court observed:[52]

It is well established that joinder of multiple charges will be permitted if they have a ‘common factual origin’[53] or a ‘sufficient connection or nexus’.[54] Such a ‘nexus’ will be established if the evidence on one charge would be admissible in the trial with respect to another.[55] As the evidence upon which the Crown sought to rely plainly had a sufficient nexus, no error has been shown in [the trial judge’s] refusal, on that account alone, to sever counts 21 to 68.

[52]Ibid (citations as in original). In that case, the Court considered rule 2 of the Presentment Rules in the Sixth Schedule to the Crimes Act 1958.

[53]R v Barrell and Wilson (1979) 69 Cr App Rep 250, at 252–3.

[54]R v Collins [1996] 1 Qd R 631, at 636; R v Kray [1970] 1 QB 125, at 130.

[55]R v Kray [1970] 1 QB 125, at 131.

We consider that, when it is contended by the prosecution that the joinder of charges is warranted on the basis that they are ‘founded on the same facts’, it is necessary as a first step to determine the ‘facts’ of the offences which are said to be the ‘same’, and upon which the offences are ‘founded’.

The relevant ‘facts’, in our view, will be those necessary to establish the offences. Hence, in Russell, a case in which three accused were charged with multiple counts of rape upon the same complainant, Gibbs J (with whom Mack and Jefriess JJ agreed), in dealing with s 568(6) of the Criminal Code (Qld),[56] made it clear that the

facts out of which an offence arises within the meaning of the subsection are the facts which the Crown must prove to obtain a conviction — that is, the facta probanda — and do not include all the evidence to prove the offence.[57]

[56]It provided: ‘Any number of persons charged with committing different or separate offences arising substantially out of the same facts or out of closely related facts so that a substantial part of the facts is relevant to all the charges may be charged in the same indictment and tried together’.

[57]R v Russell (No 2) [1965] Qd R 334, 337.

The Court in Russell observed that the question of whether ‘one set of facts is closely related to another is simply one of degree’.[58] In that case, the two relevant sets of facts were found to be closely related because they were related in time, place, the nature of the crime, the identity of the victim and the circumstances in which each offence was allegedly committed.[59]
[58]Ibid.
[59]See also Zammit v Western Australia (2007) 34 WAR 302, 314–5 [35]–[39].

In this case, the respondent agreed with the proposition that the only fact that is foundational of both the alleged murder and the rapes is the relationship evidence relied upon in proof of the offences. In other words, the ‘facts’ relied upon by the prosecution amounted in reality to nothing other than the evidence by which it was sought to prove the offences.

We consider, however, that ‘facts’ upon which the ‘offences’ must be ‘founded’ for the purposes of the first limb of the definition of ‘related offences’ are the material facts required to prove the offences, as opposed to the evidence sought to be adduced to prove those material facts. Looked at in this way, it is clear that the charges of rape and of murder in this case were not ‘founded on the same facts’.

The practice of not joining other charges to a charge of murder

Counsel for the applicant before the trial judge, and in this Court, relied on the venerable practice of not joining other charges to a charge of murder in support of the contention that severance should have been ordered. Given that we have concluded that the joinder of the rape charges to the murder charge in this case was — because they were not ‘related offences’ — impermissible, it is strictly unnecessary to determine whether the time-honoured practice should have tipped the balance in favour of severance. We would, however, make the following observations.

Albeit that it is possible to do so in an appropriate case, it has been a long-standing practice in this State not to join other charges to a charge of murder. Thus, it was observed in Wright and Haigh:[60]

Although it is uncommon to join more than one count of murder in a presentment, it is not prohibited by any rule of law.

[60]R v Wright and Haigh [1983] 1 VR 65, 67 (O’Bryan J, Young CJ and Murphy J agreeing).

Indeed, in Pollitt, Beach J expressed the view that ‘it is highly undesirable to include any other count on a presentment that contains one or more counts of murder and that course should only be permitted in exceptional circumstances’.[61]
[61]Pollitt, 302.

The origins of the practice appear to be these. After the Indictments Act 1915 (UK) permitted the joinder of counts for felony in an indictment, a rule of practice appears to have been adopted in England whereby charges for other offences were not joined with a charge of murder. Thus, in Jones it was held that in a case of murder the indictment ought not to contain a count of such a character as robbery with violence. Lawrence J, giving the judgment of the Court of Criminal Appeal, said:[62]

The charge of murder is too serious a matter to be complicated by having alternative counts inserted in the indictment. In the opinion of the court the Indictments Act, 1915, did not contemplate the joinder of counts of this kind. The proper course in a case like this is to have two indictments so that the second charge may be subsequently tried if the charge of murder fails and it is thought desirable to proceed upon the second charge.

[62]R v Jones [1918] 1 KB 416, 417.

Jones provided a rule of practice that seems to have been adopted and long-followed in this State (notwithstanding that in Connelly a majority of the House of Lords considered that the practice contemplated in Jones should not continue to be followed).[63] The existence of the practice was acknowledged in Debs and Roberts, a case in which the evidence of a number of armed robberies (dubbed the ‘Hamada robberies) — which were uncharged — was led in support of charges of murder. Holding that it was proper not to join charges of armed robbery with charges of murder, Vincent JA said:[64]

Although there are examples of situations in which one or more counts of murder have been joined in a single presentment with counts relating to other offences about which evidence was to be given in the trial, to my understanding the inclusion of separate counts to encompass those offences has never been required. Indeed, the joinder of such additional counts was regarded as inappropriate and rarely permitted until relatively recently. In 1990, Beach J, reflecting the generally accepted approach, expressed the view that
it is highly undesirable to include any other count on a presentment that contains one or more counts of murder and that course should only be permitted in exceptional circumstances.[65]
There is no need in the present matter to canvass at length the possible rationales for the adoption of this stance, but they include a desirability (unfortunately sometimes forgotten by those drafting presentments) that the number of counts which the jury will need to consider, and about which the trial judge will be required to provide instructions, be kept to the minimum necessary in the circumstances, and concerns about the introduction of undue complexity, prejudice and the potential diversion of jury deliberations into what might be, in the context of the specific case peripheral areas that may result. There was no circumstance in the present matter, either as a matter of law or arising from the factual situation or issues, that can be seen to have necessitated, or, on balance, rendered desirable, the joinder of counts relating to the Hamada robberies.

[63]See Connelly, esp. 1348–53, 1358–9 (Lord Devlin)

[64]R v Debs and Roberts [2005] VSCA 66, [249]–[250] (Warren CJ and Winneke P agreeing) (citations as in original; emphasis added).

[65]R v Pollitt [1991] 1 VR 299 at 302.

In AB, a presentment filed against two accused contained a count of murder, a count of affray, and 18 counts of violent offences of various types. The trial judge, Whelan J, was ‘satisfied that each accused may be prejudiced or embarrassed in his defence by reason of being charged with the counts other than murder in the same presentment as the murder and [directed] that the murder count be tried separately to the other counts on the presentment’.[66] Without providing distinct reasons for doing so, however, Whelan J accepted the conclusion that the conventional practice should not continue to apply. He said:[67]

I accept that the strict traditional approach to the separate trial of murder counts is no longer warranted. There will be circumstances where there will be no prejudice or embarrassment to the defence in another count or counts being tried with a murder count and where such a trial will be appropriate. In my view, however, this is a case where the traditional approach should be followed.

[66]AB, [13].

[67]Ibid [10].

In other parts of Australia it has been recognised that ‘at least as a matter of preference or practice, an indictment for murder … should not contain other charges’,[68] albeit that Mildren J observed in Hofschuster:[69]

There is no practice that has grown up in the Northern Territory that counts, other than for murder, are never charged in the same indictment containing a charge of murder, although instances of this occurring in the past are relatively rare. The usual course is for the Crown to present an indictment for murder only. Sometimes, if the Crown intends to rely upon the commission of what the common law referred to as a felony instead of, or in addition to, proof of an intent to kill or cause grievous harm … , the relevant ‘felony’ was also charged. However that may be, the course taken in the present case is not of that kind and I think it may be accurate to describe it as novel, at least in the Northern Territory, although I note that a similar course was permitted in Victoria in R v Demirok [1976] VR 244 and in R v Bazley (1986) 21 A Crim R 19. Be that as it may, Beach J recently said, in R v Pollitt [1991] 1 VR 299 at 302:
… in my own view it is highly undesirable to include any other count on a presentment that contains one or more counts of murder and that course should only be permitted in exceptional circumstances.
The reason for this attitude was explained by the Court of Criminal Appeal in R v Jones [1918] 1 KB 416 at 417 …

[68]R v Tailford [2021] NSWSC 248, [58] (Rothman J).

[69]Hofschuster, 387.

Of course, the practice of not charging other offences with murder grew up when the sentence for murder was death. Despite the fact, however, that the death penalty was abolished in 1975[70] — the maximum penalty now being life imprisonment — murder remains the most serious offence that may be tried under State law.
[70]See the discussion in Hunter v The Queen (2013) 40 VR 660, 673–4 [46]–[51] (Priest JA).

We consider that general adherence to the customary practice has much to commend it. In our opinion, there is a deal to be said for the view that ‘murder is too serious a matter to be complicated by having alternative counts inserted in the indictment’. We agree with Vincent JA — who presided over a great many murder trials — as to the desirability of limiting the number of charges that a jury will need to consider, and about which the trial judge will be required to provide instructions, so as to avoid undue complexity, prejudice and the potential diversion of jury deliberations into what might be, in the context of the specific case, peripheral areas.

There will, of course, be cases in which rape and murder are so closely connected that joinder is appropriate, Bayley[71]and Todd[72] being examples (although contrast Camilleri).[73] There will also be cases in which it is proper to charge more than one offence of murder in an indictment where each offence was part of a series, as was the case in Kray and Wright and Haigh. And there will be cases in which, for example, it is proper to join other charges such as burglary and arson to a charge of murder, as occurred in Japaljarri.[74]
[71]Bayley v The Queen (2013) 43 VR 335.
[72]Todd v The Queen [2020] VSCA 46.
[73]R v Camilleri [1999] VSC 184; on appeal, R v Camilleri (2001) 119 A Crim R 106.
[74]R v Japaljarri (2002) 134 A Crim R 261.

A degree of circumspection is, however, required before the usual practice is departed from. And although we would not endorse the notion that ‘exceptional circumstances’ are required before an offence for another charge is joined with a charge of murder, departure from the usual practice should only be contemplated when there are cogent reasons for doing so.

Some other observations

It is clear, as we have said, that the trial judge’s evidentiary rulings will need to be revisited in light of our conclusions on joinder.

Without in any way pre-empting how the judge might rule, we note that the prosecution seeks to rely on the applicant’s ‘controlling behaviour’ — constituted by the alleged rapes and other behaviour — in proof of the murder.

To our minds, however, that the relationship between the applicant and FRS was characterised by controlling behaviour says little about whether the applicant killed his wife (as opposed, say, to portraying him simply as a man of bad character). What appears to us to be far more important than the detail of the alleged rapes, is the fact that the applicant had been charged with them and was to face the charges at a committal in a week’s time. So much provides a powerful motive for the alleged murder.

Moreover, the simple fact that there was an intervention order on foot strikes us as far more important than evidence of the particular conduct that led to its grant. The fact that an intervention order was in place might be used to raise an inference that FRS would not have invited the applicant to her home.

In trials for murder, evidence of the relationship between the accused and the deceased has been admitted, not simply because it describes the relationship between the two, but because particular acts or statements occurring within that relationship are relevant to the issues arising in the case; for example, was the killing deliberate or an accident; or was the killing an act of aggression or done in lawful self-defence?

Thus, in Wilson[75] — the statements from which have been referred to and applied in many cases in this country[76] — the applicant had shot and killed his wife, claiming that her death was caused by the accidental discharge of a gun. The prosecution adduced evidence, however, that the deceased in quarrels with the applicant had said to him in the presence of witnesses: ‘I only know you want to kill me for my money’, and ‘I know you want to kill me, why don’t you get it over with’. Barwick CJ said:[77]

It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance, it is inadmissible … It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn … Here the evidence was of quarrelling and bad relationship over a considerable period stretching up to the time of the death of the deceased. In my opinion, the evidence of the relations which had developed between the applicant and his wife was admissible.

[75]Wilson v The Queen (1970) 123 CLR 334 (‘Wilson’).

[76]See, for example, R v Anderson (2000) 1 VR 1, 12–14 [30]–[33] (Winneke P, Chernov and Phillips JJA); R v Gojanovic (No 2) [2007] VSCA 153, (Ashley and Kellam JJA, and Kaye AJA) (‘Gojanovic‘).

[77]Ibid 339 (emphasis added).

And Menzies J observed:[78]

Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.

[78]Ibid 344 (emphasis added).

In Gojanovic, the applicant contested the prosecution case that he had killed his wife by a conscious, voluntary and deliberate act. Evidence was led by the prosecution to establish that the applicant had assaulted his wife some months before her death. The Court observed:[79]
[79]Gojanovic, [87] (citations as in original; emphasis added).

It is well established that, in a case involving an alleged offence arising out of or in the course of a marital or defacto relationship, evidence as to the background relationship between the accused and the victim is admissible provided it is relevant to an issue between the Crown and the accused. It is insufficient for the evidence to be admissible simply on the basis that it relates to or bears upon the relationship between the accused and the victim. Rather, as evidence arising from the relationship, it must as a matter of logic add to or detract from the probabilities of the Crown case in respect of one or more of the elements of the offence which must be established by the Crown. Those principles are not in dispute, and derive from cases such as Wilson v R;[80] R v Iuliano;[81] R v Hissey;[82] R v Anderson;[83] R v Frawley.[84]

And also:[85]

In cases of murder, the admissibility of evidence as to relationship has been upheld, not only where it bears on issues such as whether the accused had the requisite mens rea, or whether the accused might have been acting in self-defence or under provocation, but also on issues such as whether an accused had a motive to intentionally murder his or her victim. Thus in Wilson v R, the issue was whether the accused fired the fatal shot, or whether the firearm discharged after the accused had placed it on a haystack. In R v Hissey the question was whether it was the accused who had struck the fatal blow to the deceased. In both cases the admissibility of prior relationship evidence between the accused and his victim was upheld on the basis that it bore on the issue of the motive of the accused.
As stated by Winneke P in Anderson’s case, evidence as to the previous background between the parties is also relevant as to the state of mind of the deceased at or about the time of the killing. In particular it may be relevant whether the deceased might have engaged in conduct attributed to her by the accused as instigating the chain of events which culminated in her death.[86] Thus in Anderson’s case Winneke P[87] observed that the evidence was admissible to enable the jury to understand the relationship between the parties, and thus to enable them ‘… to better evaluate the respective intentions with which the parties had acted on the night in question’.

[80](1970) 123 CLR 334 at 337 and 339 (Barwick CJ); 344 (Menzies J).

[81][1971] VR 412 at 416.

[82](1973) 6 SASR 280 at 288–9.

[83](2000) 1 VR 1 at 12–16 (Winneke P).

[84](1993) 69 A Crim R 209 esp, 222–3 (Gleeson CJ).

[85]Gojanovic, [89]–[90] (citations as in original; emphasis added).

[86]R v Parsons (2000) 1 VR 161.

[87]At p 16.

In circumstances in which the principal issue confronting the jury boils down to a choice between suicide or murder, the evidence that the relationship between the applicant and FRS had reached a point where, through police, she had taken out intervention orders against him, and made allegations resulting in charges of rape against him, is highly relevant to that principal issue. The particular conduct leading to the intervention orders and charges, however, and the fact that the applicant had been involved in controlling behaviour, is of much less relevance.

Conclusion

Leave to appeal will be granted and the appeal allowed.

The interlocutory decision dated 18 June 2021 will be set aside.

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[2021] VSCA 206

29 July 2021