R v Dixon

Case •

[2024] NSWDC 674

•

31 October 2024

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Dixon [2024] NSWDC 674
Hearing dates: 30-31 October 2024
Date of orders: 31 October 2024
Decision date: 31 October 2024
Jurisdiction:Criminal
Before: Neilson DCJ
Decision:

See par [64].

Catchwords:

CRIME – s21(2) CPA Application for severance of indictment into 5 different trials – 9 counts, including counts of larceny, break and enters and a take and drive conveyance without consent – Granted in part.

Legislation Cited:

Criminal Procedure Act 1986, s 21.

Indictment Act 1915 (UK).

Cases Cited:

Ludlow v The Metropolitan Police Commissioner [1971] AC 29; [1970] 1 All England Reports 567.

Billings v R [2012] NSWCCA 33 at [14]-[18].

Phillips v R [2006] HCA 4; (2006) 225 CLR 303.

Mac v R [2014] NSWCCA 24.

Texts Cited:

Nil.

Category:Procedural rulings
Parties: Crown – R (NSW)
Accused – Justin Dixon
Representation:

Counsel:
Crown – Ms Brown, A.
Accused – Mr Renard, E.

Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW)
Accused – Mayfair Lawyers
File Number(s): 2023/00449937
Publication restriction: Nil.

Judgment

  1. HIS HONOUR: Yesterday, the accused, Justin Dixon, was arraigned on an indictment, which contains nine Counts.

  2. Count 1 is an allegation that on 5 September 2023, the accused broke and entered the dwelling house of ZT at Adelong Close, at Wakeley, and did steal a silver Subaru Impreza, registered number YBJ 96T, the breaking and entering being in circumstances of aggravation, namely that he knew there was a person or persons present in the said dwelling house.

  3. Count 2 in the indictment is in the alternative to Count 1, and is an allegation of taking without the consent of ZT the said Subaru Impreza.

  4. Count 3 is an allegation that on 11 September 2023, the accused broke and entered the dwelling house of JF, at McIver Avenue in Middleton Grange and committed a serious indictable offence therein, namely damaged property, being the sliding glass door of the property in question. That is also alleged to be in circumstances of aggravation, namely that the accused was in company.

  5. Count 4 in the indictment is that on 11 September 2023, shortly after the event at Middleton Grange, the accused did break and enter the dwelling house of AB, at Rosebank Avenue, Elizabeth Hills, and committed a serious indictable offence therein, namely larceny of a handbag and keys, in circumstances of aggravation, that he was in company.

  6. Count 5 is an allegation of stealing a motor vehicle, being a Land Rover Velar, registered number EYS 54U, the property of AB.

  7. Count 6 is an allegation that, again on 11 September 2023, at Elizabeth Hills, the accused did steal a Yamaha PW50 mini dirt bike, the property of AB. Both those motor vehicles were parked on or near the property of AB at Elizabeth Hills.

  8. Count 7 alleges that on 14 September 2023, at Green Valley, the accused attempted to break and enter the dwelling house of RS at San Cristobal Drive, at Green Valley, with intent to commit the serious indictable offence of larceny, in circumstances of aggravation, namely that he was in company.

  9. Count 8 alleges that on the same day, 14 September 2023 - shortly after Count 7, the accused broke and entered the dwelling house of RK at Bernier Way and committed a serious indictable offence therein, namely larceny of two wallets and keys, in circumstances of aggravation, namely that he was in company.

  10. Count 9 is that on 19 September 2023 at Wyong Creek, the accused without the consent of WE, the owner of a motor vehicle, a white Mercedes SUV, registered number CLE 83U, did take and drive that conveyance.

  11. The application currently before me is a Motion on Notice seeking an order pursuant to s 21(2) of the Criminal Procedure Act 1986, that the current indictment be severed into five different trials, a trial for Counts 1 and 2, a second trial for Counts 3, 4, 5 and 6, and a separate trial for each of Counts 7, 8 and 9.

Circumstances of Counts 1 to 8

  1. Count 1 is alleged to have occurred at approximately 5.20am on 5 September 2023, at Adelong Close, Wakeley. The first counts in the indictment relate to suburbs just north of Liverpool, being Middleton Grange, Elizabeth Hills, Green Valley, Wakeley, and there are relevant events after the first eight counts occurring at Mount Pritchard. Tab 5 in the Crown bundle is a map showing the proximity of these suburbs of South Western Sydney. Wyong Creek, of course, is on the Central Coast.

  2. The Crown case statement, which is at tab 2 of Exhibit 1, tells me that the silver Subaru Impreza, was parked in a locked garage. According to the Crown, the person alleged to be the accused was wearing a cap, a hooded jumper, track suit pants, a backpack, gloves, and Nike Air Max Plus TN shoes. The photograph showing the accused at the front of the property does not enable me to make out with any certainty those facts.

  3. How the accused is alleged to have gained access to the locked garage is unknown. It may not have been locked at all. The car keys of the silver Subaru Impreza were left in the vehicle. The vehicle also contained ZT’s handbag, which included $500, bank cards, a driver’s licence and a Medicare card. The allegation of course is that the accused stole the silver Subaru Impreza.

  4. On 11 September, it is alleged that the accused committed the crimes referred to in Counts 3 and 4, and related to Count 4 are of course Counts 5 and 6. According to the Crown case statement, on 11 September at approximately 2.50am, the accused and an unknown co-accused were captured on CCTV, driving in the vicinity of McIver Avenue, Middleton Grange. That is the address of the complainant for that breaking and entering, JF. She was asleep there at the time.

  5. Figure 3 in the Crown case statement is a photograph showing a Subaru Impreza parked in the vicinity of McIver Avenue, Middleton Grange. It is unclear as to whether there was any numberplate on that vehicle. I cannot make out any number plate on the figure in the Crown case statement. I am confident that if a numberplate were affixed and its writing were legible, the letters and numbers of the numberplate would have been given in the Crown case statement. One can only conclude that there was a Subaru Impreza parked near the address in question.

  6. How the photograph came to be available to the police is not clear. It might be a photograph taken from some CCTV footage, but the Crown case statement does not say that. Therefore, it may only be speculation that the accused and the alleged co-accused were driving in the vicinity of McIver Avenue at the relevant time. On this occasion, the accused was said to be wearing this attire, “Cap/beanie, a hooded jumper, Champion brand tracksuit pants, black gloves, and Nike Air Max Plus TN shoes”.

  7. The co-accused was wearing, according to the Crown case statement, a hooded Elwood jumper, dark tracksuit pants, and Nike shoes. Whether those Nike shoes were the same as the Nike shoes said to have been worn by the accused is unclear.

  8. It is perhaps convenient at this stage to describe the attire alleged to be of the accused at the other events now in question. As far as Counts 4, 5 and 6 are concerned, the accused was said to be wearing a hooded jumper, Champion brand tracksuit pants, and Nike Air Max Plus TN shoes. The alleged co-accused was said to be wearing a hooded jumper, dark tracksuit pants and Nike TN shoes. If that were the same man alleged to be in company with the accused in respect of Count 3, then the Nike shoes alleged in paragraph 8 of the Crown case summary, then it is likely that those shoes were also Nike TN shoes.

  9. In respect of Count 7, the accused is alleged to have been wearing dark-coloured tracksuit pants, a hooded jumper, a Nike backpack and black and aqua Nike Air Max Plus TN shoes.

  10. As far as Count 8 is concerned, the accused is alleged to be wearing dark-coloured tracksuit pants, a hooded jumper, a Nike brand backpack, and black and aqua Nike Air Max Plus TN shoes.

  11. Count 7 is alleged to have occurred starting at 5.27am on 14 September. Count 8 is alleged to have commenced to occur at 5.16am on 14 September 2023. At 6.35am on the same day - 14 September 2023 - it is alleged that the accused was captured on CCTV driving a silver Subaru Impreza bearing Queensland registration plates, 712 HR9, on South Liverpool Road towards its intersection with Elizabeth Drive. The intersection of South Liverpool Road and Elizabeth Drive has three service stations, including a 7-Eleven and Speedway, which are located on the southern side of Elizabeth Drive, whilst a further Speedway service station is located on the northern side of Elizabeth Drive.

  12. Whilst travelling on South Liverpool Road, it is alleged that the accused stopped for a short period of time and an unknown Caucasian female left the front passenger side of the vehicle. She went to the 7-Eleven service station and made “a fraudulent transaction” with a credit card stolen from Bernier Way, Green Valley, the premises which were the subject of the breaking and entering alleged in Count 8.

  13. The unknown Caucasian female then walked towards the Speedway service station on the southern side of Elizabeth Drive where she made a further “fraudulent transaction” using the credit card stolen from Bernier Way, Green Valley, earlier that morning. Whilst the unknown Caucasian female was attending to those matters, it is alleged that the accused drove the silver Subaru Impreza with the Queensland registration plate through the Speedway service station on the north side of Elizabeth Drive. He got out of the vehicle and was captured on CCTV wearing black and aqua Nike Air Max Plus TN shoes, navy blue “Gant” shorts, and a white “Gant” brand t-shirt, and certain jewellery which I need not describe. Again, the only thing identifying the male alighting from the Subaru Impreza at the service station that ties him to the earlier alleged crime scenes was the fact that that man is seen to be wearing “black and aqua Nike Air Max Plus TN shoes”. While the man alleged to be the accused was at the service station, the unknown Caucasian female walked from the Speedway service station on the southern side towards the Speedway service station on the northern side of the intersection and she then entered the silver Subaru Impreza with the Queensland registration plates. I have been told from the Bar table without objection by Ms Brown on behalf of the Crown that the Queensland registration plates were not attached lawfully to the silver Subaru Impreza.

  14. I turn now to Count 3. Figure 4 is of a person alleged to be the accused prior to opening the side gate, giving access to the backyard at McIver Avenue, Middleton Grange. Figure 5 is a photograph showing the accused after opening the side gate. Figure 6 is a photograph showing the accused and the alleged co-accused walking down the side of the property in question. The photographic evidence contained in the Crown case statement allows me to differentiate between the person alleged to be the accused and the co-offender because Figure 11 shows the two men, one behind the other. The man on the left-hand side is wearing very dark-coloured tracksuit pants, whereas the tracksuit pants alleged to be worn by the accused were much lighter in colour. However, that photograph was taken in respect of Count 4. The photographic evidence concerning Count 3 does not allow me to differentiate between the accused and the co-accused.

  15. Continuing the narrative provided by the Crown, once at the side of the property, the accused used a knife to open the side gate, and he and the co-accused made their way down the side of the property. The accused and the co-accused then used a knife to cut blinds before entering the property. The facts appear to indicate that there was an al fresco area attached to the back of the property, which was enclosed with electric roller blinds, and using the knife to cut the blinds may constitute the breaking into the property as distinct from merely opening the side gate.

  16. The facts tell me that the accused and the co-accused were faced with a further locked and secured door, being a glass sliding door. The two men in question attempted to manipulate the door to gain entry, but were unsuccessful, but caused damage to the door, which is clearly visible in Figure 7. The facts tell me that at approximately 3.00am, the two men appeared to return to the silver Subaru Impreza. At 3.03, they then returned to the property and made their way again down the side passage. They then returned to the front of the premises briefly, before making their way down the side of the property and at 3.09am, they left the premises, but 3.38, they returned and again made their way down the side of the property.

  17. At about 3.40am, the occupier, JF, woke up to loud banging. She walked out of the room and yelled, but could still hear movement from the back of the premises, so she activated her house alarm. Once they started sounding, she turned on all the lights. The facts tell me that approximately 3.41am, the two men ran from the premises and entered the silver Subaru Impreza and drove away from the vicinity.

  18. I turn to Count 4. At 4.49am, it is alleged that the accused and an unknown co-accused were captured on CCTV, parked in the vicinity of Rosebank Avenue, Elizabeth Hills, in a silver Subaru Impreza. The occupier of that premises was AB, who lived there with her two young children and her parents. She was asleep at the time. Her two daughters and her father were also at home. AB had her vehicle, a white Land Rover Velar, registered number, EYS 54U, locked and secured in the driveway of the premises. The doors and windows to her house were also locked and secured.

  19. At approximately 4.56am, the two men made their way to the rear of the property by way of a side gate. Once at the rear of the property, the two men made their way to an al fresco area, where the accused is alleged to have attempted to access the premises by a rear door, whilst the co-accused began to wheel a blue and white Yamaha PV50 mini dirt bike out of the property before loading it into the silver Subaru Impreza.

  20. The accused was holding what is described to appear to be a “large knife” in his hands, and continued to seek to gain access to the property. He removed a fly screen before utilising the knife to break into the property via a window. Figure 11 is a figure in which, if the two men in question be the same in respect of Count 3, the co-accused is wearing much darker tracksuit pants than is the person alleged to be the accused. Figures 12 and 13 are of the two men entering the property through the window. It is alleged that the two men then entered AB’s bedroom and stole her handbag, which contained her wallet and keys to her vehicle. The two men then left the property via the rear before walking up towards the front of the property. It is alleged that the second man - not the accused - was in possession of AB’s handbag.

  21. At approximately 5.12am, it is alleged that the accused entered AB’s Land Rover vehicle whist the co-accused entered the silver Subaru Impreza. They then drove away from the location.

  22. Counts 7 and 8 are both alleged to have occurred on 14 September 2023. At approximately 5.27am, three men - one of whom is alleged to be the accused - were captured on CCTV entering the side of a property at San Cristobal Dive at Green Valley, the residence of RS. The photographs in the Crown case statement are extremely dark, and I cannot discern anything which is of any utility to me.

  23. The three men made their way down the side of the property, opening a side gate, and then they made their way into the backyard. It is alleged that one of the men - the accused and the unknown co-accused - damaged and opened a rear fly screen door. However, the main glass door was still closed and locked. The result of the attempt to enter left some damage to the fly screen of the back door. At approximately 5.38am, the man said to be the accused was captured on CCTV attempting to enter one of the vehicles parked on the driveway, the attempt being through the driver’s door.

  24. Figure 20 is alleged to be a photograph depicting the accused leaving the premises, carrying what the Crown suggests was a “crowbar”. It may be some form of jemmy. At approximately 5.42am, the three men left the premises.

  25. Count 8 is alleged to have commenced at about 5.16am. This is in itself interesting, as Count 7 is alleged to have taken place between 5.27am and 5.42am, but Count 8 is alleged to have commenced prior to it and ends at 5.42am, which is the same time as the ending of Count 7. However, the two premises, according to the map at tab 5 in Exhibit 1, are very close to each other. In fact, by reference to my street directory, the San Cristobal and Bernier Way run parallel to each other and are joined by a short road called Chappel Avenue.

  26. At 5.16am on 14 September 2023, according to the Crown case summary, “an unknown co-accused” was captured on CCTV passing in front of a property on Bernier Way, Green Valley, approaching RK’s property. At approximately 5.17am, that person briefly sat outside RK’s property. At approximately 5.27am, it is alleged that the accused and an unknown co-accused approached the home of Mr and Mrs RK at the time SSK was at home asleep. It is alleged that the accused and a co-offender, who was wearing dark-coloured tracksuit pants and a hooded jumper with white-coloured prints on them and blue and white Nike TN shoes are captured on CCTV. The accused and the unknown co-offender made their way along the side passage of the property and entered the premises by way of the closed, unlocked rear sliding door. Once inside, the men moved through the kitchen and bedroom before stealing two wallets and their contents, and a car key.

  27. Between approximately 5.30am and 5.42am, a co-offender is captured briefly on film and then returned to the residence on several occasions. At approximately 5.42am, as the accused and the unknown co-offender were leaving the premises, RK returned home and observed the two men running from the premises along Bernier Way.

Telephone Evidence

  1. The other evidence which may - and I stress the word “may” - link the accused to these breakings and enterings, or attempts to break and enter, are telephone records. They are contained behind tab 7 of Exhibit 1. They had not been made by any person from any telephone company, or persons from a telephone company, but they had been made by a police officer. There is no statement from the police officer, so I am unaware of his expertise and knowledge of these things.

  2. In general, I had thought that black “x”’s marked telephone towers. However, the first “telephone map” relates to the property, Adelong Close, Wakeley. One “x” appears to mark that address, although I am not certain of that fact. Another “x” gives me latitude and longitude, and may well represent a telephone tower. However, a red indicator dot gives me another latitude and longitude which may refer to a further phone tower.

  3. The second map marks the McIver Avenue property at Middleton Grange, the subject of Count 3 in the indictment, and that is marked with a white flag on a blue disc, and there is a red pointing arrow which gives me latitude and longitude, and may - and probably does - represent a telephone tower.

  4. Page 3 of these telephone maps identifies the property at Rosebank Avenue, Elizabeth Hills, the subject of Count 4 in the indictment with a red circle pointer, and there are three black crosses with both latitude and longitude given for them, and they appear to represent telephone towers.

  5. Page 5 identifies both San Cristobal Avenue, Green Valley, Bernier Way, Green Valley, with black crosses, and two other black crosses give me latitude and longitude for both black crosses, and they no doubt represent telephone towers. Page 6 of these “telephone maps” identifies the 7-Eleven service station and the two Speedway service stations at the intersection of Elizabeth Drive and what appears to be Meadows Road, which is somewhat different to the written information about the location of the service stations that was said to be the intersection of Elizabeth Drive and South Liverpool Road. In any event, those three places are marked with black crosses, and there are three further black crosses in the latitude and longitude. I assume them to be the local telephone towers.

  1. The problem with telling me that those towers picked up certain “pings” from the accused’s mobile telephone is that the mobile telephone said to be used by the accused was in fact registered to a lady friend of his, and the number of that device was given by him to Corrective Services officials when they wished to contact the accused. One does not know who was carrying it, and of course, the person who had it may have been somewhere nearby but not involved in the breakings and enterings or attempted breakings and enterings.

Count 9

  1. I should finally advert to Count 9 in the indictment. WE and FE lived at Horningsea Park. They are the owners of a white 2018 Toyota Corolla, bearing New South Wales registration, EHU 45L, and a white Mercedes SUV, bearing New South Wales registration, CLE 83U. Sometime between 12 midnight and 6.30am on Monday, 18 September 2023, their home was broken into whilst they were asleep. A number of items were stolen, including a handbag and keys to the white Toyota Corolla and to the white Mercedes SUV. It is not alleged that the accused was involved in the breaking and entering into the house at Rabett Crescent, Horningsea Park, but I can ascertain that Horningsea Park is a suburb in southwestern Sydney, immediately north of the intersection of Camden Valley Way and Cow Pasture Road, just north of the Western Sydney Parklands. The closest major well-known place is Liverpool.

  2. At approximately 2.00pm on 19 September 2023, the accused was captured on CCTV driving the white Mercedes SUV, registered number, CLE 83U, on Yarramalong Road, Wyong Creek. The accused is captured on CCTV driving the vehicle and leaving it before approaching a rehabilitation facility. If he be the accused, he was wearing navy blue shorts, black and aqua Nike Air Max Plus TN shoes, and certain items of jewellery, of little moment.

  3. Count 9 is both in time and in location distant from the earlier counts in the indictment, and the criminality involved might be driving a vehicle that he knew, or ought to have known, had been stolen. Count 9 is an allegation of taking and driving the conveyance. A related offence is a traffic offence, a never licenced person driving a vehicle on a road, for which he had a prior conviction. Of course, he may have merely borrowed the car from someone in whose possession it was without knowing that it had been stolen. That would provide him with a complete defence.

Coincidence Evidence

  1. There is no direct evidence that the accused was involved in any of the first eight counts in the indictment. There is no DNA evidence, for example. There is no fingerprint evidence. There is no item that can be directly linked to him that was found, for example, at any of the crime scenes. There is no evidence of his being in possession of any evidence or any items taken during a breaking and entering. The closest one gets to that is of the unknown female who is alleged to be a passenger in the Subaru Impreza that the accused is alleged to have been driving, who gets out of the vehicle at the service stations and makes some “transactions” with stolen cards at the service stations.

  2. The Crown, to overcome this difficulty, have served a coincidence notice. However, the evidence, I have decided, is far from the typical coincidence example of an unusual modus operandi. The breaking and enterings are all similar, but similar to most breakings and enterings. The clothing alleged to have been worn by the accused is common clothing, readily available at many outlets.

  3. The Crown appears to make much of the fact that the accused was wearing Nike Air Max Plus TN shoes and a number of the descriptions point out that the accused was wearing black and aqua Nike Air Max Plus TN shoes. However, Nike shoes are commonly worn by young people. At the time of each of the offences in question, the accused was 43 years old, but from his appearance here in Court today, from what I can see, he is young in body, fit and active, and might easily wear the attire of young men. For all I know, there could be shops full of Nike Air Max Plus TN shoes. It is not as if these were gold-plated special shoes worn only by a handful of people. Again, the parts of his attire are worn prolifically, and it is clear that other of the alleged offenders were wearing some form of Nike footwear.

  4. The other matter that joins these things together is the silver-coloured Subaru Impreza motor vehicle. I do know that a silver Subaru Impreza, registered number YBJ 96T, was stolen from the dwelling house of ZT on 5 September 2023, the allegation in Count 1 of the indictment. I do not know, nor would a jury without evidence, as to how common a Subaru Impreza might be. They might be prolific for all I know. I do know that my fourth Associate used to drive a silver Subaru Impreza and would drive it to Campbelltown Courthouse when I was sitting there for the best part of ten years, commencing in 2005. I did not need to use my car space there because I was transported there by a car. My Associate used to park his silver Subaru Impreza in my parking space at Campbelltown Courthouse. I do not know the model number of the silver Subaru Impreza that was stolen, whether it was of distinctive construction compared to earlier and/or later models. I do not know - nor without evidence could a jury know - whether each of the Subaru Imprezas alleged to have been driven to or from a number of these breakings and enterings was of the same type as that stolen from 3 Adelong Close, Wakeley, on 5 September 2023, nor do I know whether the Subaru Impreza bearing the Queensland numberplates that it is alleged the accused drove on 14 September 2023 in visiting the service station at the intersection of South Liverpool Road and Elizabeth Drive. Whether the photograph, which is clear, of the person alleged to be the accused with that Subaru, being figure 24 in the Crown case statement, is of the accused or not, I do not know. The stolen Subaru Impreza has not been recovered, as far as I am aware, nor has the silver Subaru that was being driven by the accused, allegedly, on 14 September 2023 been recovered, whether there be any DNA in either of those vehicles, if they were recovered, I do not know.

  5. The attempt to describe this as coincidence evidence is mainly because the best chance the Crown has of proving counts 1 to 8 is by establishing that the person at the service station later in the day on 14 September 2023 is the accused and working backwards from there.

Joinder of Counts

  1. The relevant law stems from the decision of the House of Lords in Ludlow v The Metropolitan Police Commissioner [1971] AC 29; [1970] 1 All England Reports 567, which is the report of that case available to me. The decision of the House resulted from the speech of Lord Pearson, with whom Lords Hodson, Donovan, Wilberforce and Diplock agreed. Lord Pearson took the facts from the judgment of the Court of Appeal, as given by Salmon LJ. They are these:

“As to the count of attempted larceny: on the evening of 20 August 1968, at the Windmill public house in Acton, the appellant was seen by a barman emerging from a window of the staff room, which had been left open. The barman asked him what he was doing. He did not reply, but his companion, who was standing outside the window, said, ‘You’re wasting your time, there’s nothing in there worth pinching’. The barman went into the staff room and found all the drawers left open and other indications of a search having been made. Earlier in the evening he had visited the room and found nothing disturbed. The barman called the police, but when they arrived the appellant had disappeared. On 5 September, the barman identified him to the police. When he was questioned by the police, he said, ‘He can say what he likes. My mates will fix him’. He admitted that he had been to the private part of the public house on 20 August, but denied that he had done anything there. When the appellant gave evidence, he denied that the barman had seen him emerging from the window, and suggested that it was his companion and not he who had been inside the private part of the public house, and that he had remained outside. He tried to explain his admission to the police that he had been inside the private part of the public house by saying that he had been referring to the garden. On the evening of 20 August, however, the garden had been open to the public and was being used as a beer garden. The appellant’s story was obviously very thin. There was strong evidence which clearly the jury accepted that the appellant had attempted to steal.

As to the count of robbery: on 5 September 1968, the appellant and two others were drinking in the Prince of Wales public house in Acton, where they remained for about two hours. Prior to 2.55pm, the appellant had ordered a number of rounds of drinks for the three of them and paid on each occasion. Finally, at about 2.55pm, he ordered and was supplied with three more rums. When the relief manager, Mr Fuller, asked the appellant to pay for these drinks, the appellant refused, saying, ‘You’ll have to chase me if you want paying for these’. He then walked out of the public bar. Mr Fuller followed him and threatened to call the police unless the appellant paid him for the three rums. The appellant then produced a ten-shilling note, and as he handed it to Mr Fuller, said, ‘I will only pay for my bloody drink’. Mr Fuller went over to the till and rang up nine shillings and ninepence, the price of the three drinks owed to him by the appellant. The appellant then got behind the counter and said, ‘I will break a bloody bottle if you charge me’. Mr Fuller told him to get to the public side of the counter, whereupon the appellant snatched the ten-shilling note from Mr Fuller’s hand and punched him in the face, breaking his glasses and cutting his face below the left eye and knocking a tooth out in doing so. He then ran away. The appellant stated in the witness box that he’d only ordered one drink, that he should only have been asked to pay three shillings and three pence for that drink, and then when he saw nine shillings and nine pence registered on the till, he considered himself entitled to recover the ten-shilling note. He admitted that he was wrong in using violence.”

  1. The question that was before the House of Lords was whether the two counts ought to have been pleaded in the one indictment and be tried together. His Lordship then commenced discussing the history of the provisions relating to indictments. He then referred to the Indictment Act 1915 (UK), which was enacted to simplify and rationalise the previous system of law and practice relating to the joinder of charges in an indictment. His Lordship continued thus:

“The general scheme of the provisions is plain. Section 4 contains a broad, general authorisation of the joinder of charges in indictments subject to the provisions of the rules under this Act. Then rule 3 introduces the limitation: ‘charges may be joined in one indictment if they are founded on the same facts, or form all or part of a series of offences of the same or similar character’. Section 5, sub-s(3), adds a safeguard. Even if the charges are properly joined according to the rule, the judge still has a discretionary power to order separate trials if a joint trial of the charges might prejudice or embarrass the accused in his defence”.

Of course, in this State, one can discern in section 21 of the Criminal Procedure Act 1986 similar provisions.

  1. His Lordship then continued thus:

“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 fall or be a part of a series of offences of the same or 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 form a series of offences of a similar character. There are two elements in that question.

First, were the two offences a series? Could two make a series? This point was decided by the Court of Appeal in R v Kray, and the application for leave to appeal from their decision to this House was refused both by the Court of Appeal and by this House. Widgery LJ, reading the judgment of the Court, said:   

“It may be true that the word ‘series’ is not wholly apt to describe less than three components, but so as to limit its meaning in the present context would produce the perverse result that whereas three murders could be charged in the same indictment, two could not. The construction of the rule has not been restricted in this way in practice during the 50 years which have followed the passage of the Act, and it is too late now to take a different view.”

For these reasons, the Court of Appeal decided that the two offences could constitute a “series” within the meaning of the rule, and I agree with their decision and reasons.

Secondly, were the two offences ‘a series of offences of…a similar character’ within the meaning of the rule? Counsel for the appellant argued that the phrase ‘of…a similar character’ does not mean of a similar legal character, but means exclusively of a similar factual character. Counsel for the Crown argued that the phrase means exclusively of a similar legal character, although he claimed that in this case he could show both a legal and a factual similarity between the two offences. 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 that 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 the 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 the 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. A nexus is a feature of similarity, which in all of the circumstances of the case enables the offences to be described as a series.

In R v Kray, the Court of Appeal said:

“…offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected, and that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases.”

They referred to the facts in R v Clayton-Wright and cited a passage from the judgment of Lord Goddard CJ in that case, where he said:

“One test which the learned judge applied was to consider whether the evidence with regard to the mink coat could be given in evidence on the other charges. He came to the conclusion that it could, and in the opinion of the Court, he came to a right conclusion… That was one ground, but the main on which the Court holds that there was no misjoinder is the following. The charge contained in the first three counts…in substance was that the appellant fired the yacht with the idea of swindling underwriters. The charge with regard to the mink coat was a similar charge of swindling underwriters, and, therefore, one gets what I may call a nexus of insurance, the nexus of fraudulent acts to the prejudice of the underwriters…”

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 fact, 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.”

  1. On that authority, counts 1 to 8 were, in my view, properly joined in the one indictment. Both as a matter of time and as a matter of geography, count 9 is different, and is different in substance. It is merely driving in a vehicle which had been stolen. In the other counts in the indictment, all involved seeking to obtain the property of others by theft after breaking and entering. The common element is the same motivation, the motivation to steal, the animus furandi. However, that is not the end of the matter.

  2. Section 21(2) of the Criminal Procedure Act 1986 provides this:

“(2) If of the opinion:

(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or;

(b) that for any other reason it is desirable to direct the accused person to be tried separately for any one or more of the offences charged in an indictment,

the Court may order a separate trial of any count or counts of the indictment”.

  1. The Court has a discretion. If there were evidence that would persuade a jury that the accused permitted one of the breakings and enterings or one of the attempted breakings or enterings that are pleaded between counts 1 to 8, I would not order that there be a separate trial. However, here, where there is no firm evidence that the accused committed any of the breakings and enterings or the attempted breakings and enterings the Crown has merely collated as number of what it says are related charges and served a coincidence notice seeking to charge the accused with a number of offences in which it may or may not be successful.

  2. However, the distinct impression which any jury would be given, is as has been submitted by learned counsel for the accused, that the jury would turn against the accused by reason of his being alleged to be a repeated, persistent thief. That would be to his great prejudice. They would look at all the facts together, rather than look at the facts of each particular case as they are required to do.

  3. In Billings v R [2012] NSWCCA 33, it fell to the Court of Appeal to consider whether multiple counts should be heard together where one count was of murder and whether evidence of one count was admissible in relation to another count. Commencing at [14], McClellan CJ at CL, with RA Hume and Schmidt JJ concurred, said this:

“[14] The approach which this Court must take to the present application was considered in DAO v Regina [2011] NSWCCA 63; (2011) 278 ALR 765, in which it was held that an order providing for separate trials is an interlocutory judgment or order for the purpose of section 5F of the Criminal Appeal Act. Whether there should be a joint or separate trial of individual counts is a matter within the discretion of the trial judge, although that discretion must be exercised according to established principles; DAO & Regina v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504. To succeed in this Court, the applicant must establish error in that the trial judge acted on a wrong principle, was influenced by an extraneous or irrelevant matter, mistook the facts or failed to take into account some material consideration. Where one or more of these difficulties is not apparent, error may nevertheless be identified if the decision is unreasonable or plainly unjust.

[15] In Sutton [citation below], the High Court considered whether a number of sexual assault charges should have been tried together. The Court identified that the problem with a joint trial was that unless evidence on one count was admissible on another count, the Rule which excludes evidence of similar facts would be of little or no consequence. Brennan J said (at 541-2) that:

“When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect, which evidence of his implication in one of the offences charged in the indictment is likely to have on the jury’s mind in deciding on whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes, a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.”

[16] Gibbs CJ recognised in De Jesus [citation below] that sexual cases raised particular problems. However, the Chief Justice confirmed (at 378) that the remarks of Brennan J in Sutton were of general application.

[17] In KRM, McHugh J said at [38]:

‘In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence for a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count or counts in the presentment. If that risk exists, the judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or counts, unless, of course, the evidence is admissible in respect of that count or counts. An example of such a risk is the accused being charged on the one presentment with offences against different victims and the evidence in respect of one or more counts being inadmissible in respect of the other counts. (T (1996) 86 A Crim R 293). Ordinarily, however, the Court should order separate trials where there are different victims, where the evidence in respect of one victim is not relevant to the charge in respect of the other victims, and where the joinder of charges creates a risk of prejudice (Sutton v R [1984] HCA 5; (1984) 152 CLR 528 at 531, 541-542; De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1 at 3, 7, 8; [1986] HCA 65; 68 ALR 1 at 4-5, 12, 13). But in some cases, an application for the trial of separate counts may be refused on the ground that the convenience of trying the charges together far outweighs any risk of prejudice or, more usually because a separate trial is not sought: see, for example, T (1996) 86 A Crim R 293. If that occurs, a propensity warning will almost certainly be required’.”

  1. In [18] of the judgment in Billings v R, his Honour also referred to Phillips v R [2006] HCA 4; (2006) 225 CLR 303 as emphasising the rule in regard to sexual assault offences. His Honour went on to cite the Victorian authority to the same effect.

  2. I have also had regard to the decision of the Court of Criminal Appeal in Mac v R [2014] NSWCCA 24. In my view, the joinder of the counts in the present indictment would create completely unfair prejudice to the accused. The jury might look at the number of counts and the circumstances of the breaking and entering or attempted breaking and entering, and looking at the picture overall rather than looking at the facts relevant to each charge, and conclude that it is likely that the accused was the person identified by the Crown as him when it was not open to do so if looked at individually. I have seen to the application that has been made. There is only one matter where I disagree with what has put to me by Mr Renard, who appears for the accused.

Decision

  1. In my view, counts 7 and 8 could be tried together. They occurred on the same day. They occurred in premises physically close to each other, but clearly Count 9 must be tried separately to all the other counts.

  2. For those reasons, I order that counts 1 and 2 in the present indictment be tried together. Counts 3, 4, 5, 6 are to be tried on the same indictment, separately to counts 1 and 2, and separately to counts 7, 8 and 9. I order that counts 7 and 8 be tried on the same indictment, separately to counts 1 and 2, and separately to counts 3, 4, 5 and 6, and separately to Count 9. I order that Count 9 be tried on a separate indictment.

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Decision last updated: 21 May 2025

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Cases Cited

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Zreika v R [2012] NSWCCA 33
Phillips v The Queen [2006] HCA 4
KRM v The Queen [2001] HCA 11