White (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0044

MARCUS WHITE (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.

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JUDGES:	PRIEST, MACAULAY and TAYLOR JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 November 2022
DATE OF JUDGMENT:	15 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 278
JUDGMENT APPEALED FROM:	DPP v White (a pseudonym) (Unreported, 30 July 2021, County Court of Victoria, Judge Gaynor) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Incest and related charges – Sexual penetration of a child between 10 and 16 and related charges – Two complainants – Charges against each five years apart – Whether impermissible joinder of charges – Whether charges founded on the same facts — Whether offences form or are part of a series of the same or similar character –Whether substantial miscarriage of justice – Counsel for applicant consented to or acquiesced in joinder – Whether accused can consent to joinder of charges for unrelated offences in a single indictment – Whether forensic advantage outweighed the prejudicial effect to the applicant – Application for leave to appeal granted – Appeal allowed – New trials ordered – Criminal Procedure Act 2009; ss159(3)(c), ss170, ss193, ss276(1) – Fleming (a pseudonym) v The Queen [2021] VSCA 206; De Jesus v The Queen (1986) 68 ALR 1; Mulligan (a pseudonym) v The Queen [2017] VSCA 94; R v Barrell and Wilson (1979) 69 Cr App R 250; Nicholls v The Queen [2016] VSCA 250; TKWJ v The Queen (2002) 212 CLR 124 considered.

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Counsel
Applicant:		Mr T Kassimatis KC with Ms G Connelly
Respondent:		Mr C Boyce KC
Solicitors
Applicant:	Balmer & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA:

Convictions and grounds of appeal

Throughout July 2021, the applicant was tried on an indictment in the County Court which charged him with six offences against his sister, ‘PS’ (charges 1 to 6); and 10 offences against a former girlfriend, ‘MK’ (charges 7 to 16).
Of the charges involving PS, four were of incest[2] (charges 2, 4, 5 and 6); one was committing an indecent act in the presence of a child under 16 (charge 1);[3] and one was common assault (charge 3).[4] Each charge alleged that the relevant offence took place within a 22 month period between 1 March 1994 and 31 December 1995, when PS was aged between nine and 11 years[5] and the applicant was aged 14 to 16.[6]
[2] Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s 44(4).
[3]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s 47.
[4]An offence at common law.
[5]Her date of birth is 15 October 1984.
[6]His date of birth is 31 March 1979.
The charges involving MK, his former girlfriend, included sexual penetration of a child between 10 and 16 (charges 7, 8, 14, 15 and 16);[7] common assault (charges 9, 10, 11 and 12); and attempted common assault[8] (charge 13). Each charge alleged that the relevant offence occurred in a period between 31 March 1999 and 19 October 2000,[9] when MK was aged 14 or 15[10] and the applicant was aged 20 or 21.
[7]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s 46.
[8]Crimes Act 1958, s 321M, and common law.
[9]Charge 13, attempted common assault, was alleged to have occurred ‘on or about the 31^st of March 2000’.
[10]Her date of birth is 20 October 1984.
On 30 July 2021, the jury found the applicant guilty of charges 1, 2, 3 and 5,[11] 7 to 12, and 14 to 16.[12]
[11]Charge 4 resulted in a directed verdict of not guilty, when PS gave no evidence of the alleged conduct foundational of that charge.
[12]The applicant was acquitted by direction on charge 6, and the jury found him not guilty on charge 13.
Ultimately, the applicant sought leave to appeal against conviction[13] on two grounds as follows:
Ground 1: A substantial miscarriage of justice [was occasioned] by the impermissible joinder of charges 1–6 with charges 7–16.
~~Ground 2: A substantial miscarriage of justice was occasioned by the manner in which the jury were invited by the crown to deal with evidence of the complainant’s distress while giving evidence.~~[14]
Proposed ground 3: A substantial miscarriage of justice was occasioned by the manner in which the jury was directed to consider and assess the applicant’s record of interview.[15]
[13]On 11 March 2022, on charges 1 to 5 — the offending against PS — the applicant was released on an undertaking to be of good behaviour for two years; and on the balance of the charges — involving MK — the applicant was sentenced to a total effective sentence of 26 months’ imprisonment, with a non-parole period of 17 months.
[14]Ground 2 was abandoned during the hearing in this Court.
[15]During the hearing, counsel sought leave to add ground 3. The Court indicated that we would hear argument and later decide whether leave should be granted. Since the ground is reasonably arguable, leave should be granted.
In our opinion, the first ground must succeed. For the reasons that follow, the applicant should be granted leave to appeal against conviction; the appeal should be allowed; the convictions should be set aside; and new trials ordered.

The alleged offending

Before turning to a consideration of the grounds, it is necessary to summarise the alleged offending.
The prosecution alleged that on a number of occasions between 1 March 1994 and 31 December 1995, the applicant sexually offended against his sister, PS. It was alleged that the applicant put his hands down PS’s pants and held his hand there for a couple of minutes, feeling in and around her vagina. This conduct occurred in the applicant’s bedroom and under the house (charge 1 – a course of conduct charge of indecent act with a child under 16).
On an occasion in about March 1994, the prosecution alleged, the applicant forced PS to perform fellatio on him in the backseat of his Ford sedan (charge 2 – incest). He tried to touch PS’s chest area, and threatened her if she told anyone. It was also alleged that he introduced his penis into PS’s mouth on other occasions.
According to the prosecution, there was an occasion when the applicant blocked PS as she was trying to walk up the garden path. When she tried to scream, the applicant covered her mouth and threw her on the ground. She could not breathe (charge 3 – common assault).
On another occasion, the applicant took PS under the house, positioned her on the ground, removed her pants and placed his penis into her mouth (charge 5 – incest) and then placed his penis into her vagina (charge 6 – incest). The applicant threatened to kill her if she told their mother. The applicant left, locking PS under the house until her other brother let her out. (PS failed to give evidence of digital vaginal penetration on that occasion, which had been the basis of charge 4, incest.)
With respect to MK, the prosecution alleged that between 31 March 1999 and 19 October 2000, the applicant sexually offended against her on a number of occasions in the course of their relationship.
In the prosecution case, the first time the applicant and MK had sex was in the applicant’s bedroom when she was aged 14 years. The applicant pulled her underpants aside and he penetrated her vagina with his penis (charge 7 – sexual penetration of a child under 16). Intercourse ceased when his mother walked into the room. The second time they had sex was on the applicant’s bed. MK said that the applicant lay on top of her, pulled her underwear aside and inserted his penis into her vagina (charge 8 – sexual penetration of a child under 16). The third time they had sex was at Mount Buller, when the applicant suggested that he and MK have sex in the snow. He made MK get on her hands and knees in the snow, and, even though she wore gloves, her hands were in direct contact with the snow and became soaked. The applicant penetrated her vagina with his penis (charge 14 – sexual penetration of a child under 16). MK’s hands became frozen during this sexual activity.
There was an occasion, MK said, when the applicant asked her for sex when she and one of his friends were in the applicant’s bedroom. MK refused, and the applicant struck her. She then taunted the applicant about a recent physical altercation that the applicant had with someone. He grabbed hold of her and smashed her head against the wall (charge 9 – common assault).
On another occasion, so it was alleged, the applicant threw a pair of scissors at MK when he was angry at her. The scissors lodged in her leg, which began to bleed (charge 10 – common assault).
It was alleged that on another occasion, after he saw her hug another male, the applicant punched MK in the face, threw her down the hallway and kicked and punched her (charge 11 – common assault).
On another occasion, the prosecution alleged, the applicant and MK went to the house of a man from whom the applicant purchased cannabis. Whilst there, that man was wearing shorts with his genitals exposed. On leaving the house, the applicant asked MK whether she had seen the man’s penis. She said she did, and the applicant dragged her across the road and kicked and punched her (charge 12 – common assault). (Charge 13, attempted common assault, based on the applicant throwing a chair in a restaurant, resulted in an acquittal.)
It was also alleged that there was an occasion in the applicant’s bedroom when the applicant had MK place a vibrator into his anus (charge 15 – sexual penetration of a child under 16).
Finally, it was alleged that there was an occasion when the applicant forced MK to perform fellatio on him while he was driving (charge 16 – sexual penetration of a child under 16).

The defence case

The applicant denied all of the conduct alleged by PS. It was all lies.
With respect to MK, the applicant admitted to being in a sexual relationship with her, but he believed she was 17. She did not disclose her age, and her appearance and behaviour were that of someone older than her actual age. The applicant denied that the charged occasions of sexual penetration and assaults occurred.
Essentially the defence case was that not only was PS lying, but she had put MK up to making false allegations. Thus, in a record of interview conducted with the applicant by police on 8 November 2016 he said:
If you have a look at all the records that my sister’s done, like, about our family, what she’s done to our family and all the rest of it, you can see that this is all crap constructed by my sister and [MK]. Like, it’s not just me they’ve stuffed around. It was at the start, it was just me. Then they started attacking my brother, my mum, everyone. They’re dangerous.
And when asked, ‘Is there any reason you could think [MK] would make up that many lies?’, he replied:
No. Like I said, she teamed up with my sister for a reason that I don’t know, unknown reason, and broke up with me. And from that moment on she was not the same person, started being a really weird person, like my sister. Like, my sister and her started being really odd. They’d spend a lot of time together, hung around these other two girls, Stacey and Kelly. … They used to live in Seville on the edge of the highway there at a guy called Blain’s house. … And they were there 24/7 after that, doing drugs and doing whatever they were doing. [MK] wasn’t on drugs when she was with me.

The course of the proceeding

5 March 2019

Initially, the prosecution filed a 10 charge indictment relating to the alleged offending against MK (the ‘first indictment’), the charges on that first indictment later becoming charges 7 to 16 on the indictment upon which the applicant was ultimately tried.
The matter first came before a judge of the County Court on 5 March 2019, when counsel announced there were a number of pre-trial issues to be determined (including whether the applicant’s mother would be called as a prosecution witness). Importantly, counsel for the defence informed the judge that he had become aware only days earlier that the applicant’s sister, PS, had made a statement to police implicating the applicant in offending against her, no indictment having been filed containing any charges relating to PS. Defence counsel told the judge that: ‘The suggestion would be that there’s collusion in relation to the two matters and they should be heard together’ (the ‘two matters’ being charges based on the allegations of MK, and any that may be laid with respect to PS). The judge was prompted to say:
As you said at the start, it would be a very brave defence counsel to run both these trials together, but that’s the way you do it if it was a collusion defence.
The prosecutor informed the judge that the allegations made by PS ‘are currently still being investigated by police’. Importantly, the prosecutor made it clear that
it’s not a situation where the Crown would consider running those two trials together. There’d be serious issues I would think in relation to joinder of those two matters.
Indeed, the prosecutor was quite emphatic in insisting that charges relating to MK and PS could not be joined and be the subject of a single trial, as is demonstrated in the following significant exchange with the judge, during which the prosecutor submitted, ‘It can’t happen as a matter of law’:[16]
[PROSECUTOR]: They’re not matters that the Crown would seek to run together. They simply can’t. There would be a severance application.
HIS HONOUR: Yes.
[PROSECUTOR]: It’s plain on just the bald facts of the two matters.
HIS HONOUR: I accept that.
[PROSECUTOR]: So for my learned friend to make an application on the basis of adjourning this trial for some collusion that might exist between the two, [PS] and [MK] in relation to allegations that are similar and again on the basis that those two matters should be run together, simply it’s just not going to happen in my submission. It can’t happen as a matter of law. It’s a serious issue in relation to whether those two charges if [PS’s] matters even do proceed to charging, we don’t know that yet at this stage, there’s a serious issue in relation to whether the Crown can properly join those two matters. I can’t run a tendency argument on those two different allegations.
HIS HONOUR: I know that. Sorry, I agree with that.
[PROSECUTOR]: Yes. And that goes to the very root in my submission of the application for an adjournment. It’s not for my learned friend to say that the accused would prefer that those two matters be run together. He simply doesn’t have a say. It’s up to the Director of Public Prosecutions how she presents the charges to the jury.
HIS HONOUR: Yes, I know that.
[16]Emphasis added to this and following passages.
Remarkably, the judge adjourned the trial, notwithstanding that no charges had been laid against the applicant with respect to PS (and it was not known at that stage whether charges would ever be laid).

17 June 2021: The first trial

On 17 June 2021, the applicant’s first trial commenced on the first indictment containing the 10 charges relating to MK. By that stage, charges had also been laid against the applicant with respect to his sister, PS. In discussion between counsel and the judge concerning edits that had been made to the applicant’s record of interview with police on 8 November 2016 — in which he had been questioned about allegations made by both MK and PS — there was the following exchange, in which defence counsel made it clear: first, that deletions that would ordinarily be made had not been made because MK and PS had ‘got together to both complain’; secondly, it was a ‘conscious’ forensic decision not to delete matter that ordinarily would be deleted; and, thirdly, it was a decision based on instructions:
[DEFENCE COUNSEL]: And he was interviewed in relation to both matters in the same interview.
HER HONOUR: So, obviously, it had to be weeded out.
[DEFENCE COUNSEL]: So, there’s quite a few blank pages.
HER HONOUR: That’s all right. I will explain to the - - -
[DEFENCE COUNSEL]: The blank pages have been left out.
HER HONOUR: I will give the usual explanation, that irrelevant matters have been deleted. Yes.
[DEFENCE COUNSEL]: And some things that normally would be deleted haven’t been deleted, on the basis that the defence say that [MK] has got together with his sister at some stage and they’ve got together to both complain about his - - -
HER HONOUR: Matter for you.
[DEFENCE COUNSEL]: Yes.
HER HONOUR: But, I understand that.
[DEFENCE COUNSEL]: But, that’s a conscious decision. So, Your Honour may raise a few eyebrows about what’s in the record of interview - - -
HER HONOUR: All right. Thank you for the warning, [defence counsel]. That’s a forensic decision by defence.
[DEFENCE COUNSEL]: It is indeed, Your Honour.
HER HONOUR: Yes.
[DEFENCE COUNSEL]: I’ve not fallen into it, and I have instructions in relation to that. …
The jury that had been empanelled were discharged the next day, however, during MK’s evidence-in-chief (given from a remote location). In an outburst that was not responsive to any question asked by the prosecutor, MK accused the applicant of raping his sister. The relevant passage of evidence is as follows:
[PROSECUTOR]: So you said - - -?---I hope he’s frigging loving this. Sorry. You’re a disgusting human, mate. You’re a disgusting fucking human.
HER HONOUR: I think - - -
[APPLICANT]: You’re a liar.
WITNESS: You’re a liar, cunt. Liar. Look at you, you piece of shit. What have you amounted to? You raped your fucking sister. You fucking raped me. You raped your fucking mother [scil, sister?]. You’re disgusting.
HER HONOUR: Turn it off. Turn it off, please. Thank you.

21 June 2021: The second trial

The applicant’s second trial commenced on 21 June 2021. Once more, the trial was conducted on the first indictment containing the charges relating to MK. After MK had given evidence-in-chief, there was a discussion between the judge and counsel as to how the applicant’s counsel might be able to cross-examine MK on having complained because she was ‘encouraged’ to do so by PS.
The next morning, the judge initiated a discussion, which included the following:
HER HONOUR: ... Can I just ask a couple of things? On what basis were the two trials severed? Was it a decision of the Crown or on the application or - - -
[PROSECUTOR]: It was a decision of the Crown, Your Honour, because there was - - -
HER HONOUR: Are we talking about collusion of complainants. Should the Crown allege collusion of complainants [sic] should the Crown reconsider its decision?
[PROSECUTOR]: No, Your Honour. No, it’s been considered, fully considered.
HER HONOUR: Yes.
[PROSECUTOR]: There’s no way those two trials could be run together.

HER HONOUR: The problem you’ve got is this, and I’ll speak to [defence counsel] in a moment. [PS] is a witness in this trial; correct?
[PROSECUTOR]: Yes, Your Honour.
HER HONOUR: Yes, all right. So it’s essentially being put that she and [MK], she and [MK], have committed perjury, that they have made this up, that what they’re saying is simply not true. That means that we run the danger of a trial within a trial, because [defence counsel] is going to have to put [PS] that she’s encouraged [MK] to lay a false statement against his client after she herself had made a false statement against police, all right, and the Crown is perfectly entitled in restoring their credit to get each of them to go into it, what the allegations were and why they say it’s true, which means [PS]. I do not see how it can possibly be the case that this trial can – if that’s the defence that’s going to be run, that the contents of [PS’s] allegations would not be made known to this jury. They’d have to be.

…
[PROSECUTOR]: Just in terms of what Your Honour says about running the trials together, or the two trials together, there is no basis for doing so in terms of tendency or coincidence.
HER HONOUR: You have the presumption, all right. You understand it. There is a presumption of joinder, all right. …

Although in the passage immediately above the judge asked, ‘On what basis were the two trials severed?’, no question of severance had arisen, since, up to that point, the charges against MK and PS had not been joined. In any event, it is plain from what she said that the judge thought that the prosecution should reconsider its decision not to have a joint trial of the charges involving MK and PS in light of the allegation of ‘collusion’, which might result in ‘a trial within a trial’. It is equally plain that the prosecution considered that there was no basis for running trials of the charges involving MK and PS together based on coincidence or tendency reasoning. And it is also plain that the judge thought — incorrectly — that the ‘presumption’ referred to in s 194 of the Criminal Procedure Act 2009 (‘CPA’) was applicable (a matter to which we will later return).
The judge went on to observe that, if the applicant was going to persist in his ‘defence’ — so that there would be a ‘trial within a trial’ — then the ‘jury should be discharged and [the] matters should be heard together’. She also repeated that there was a presumption of joinder:
It’s my view, and I’ll seek you to get some instructions on this, [prosecutor], it is my view that in these two trials, if this trial runs separately and [defence counsel] pursues this defence, and then the issue of the validity or the truth of [PS’s] allegations are going to become a subject for consideration within this trial, in other words, a trial within a trial is going to occur, and it is my view that if you are going – if [defence counsel] is going to persist, then both this jury should be discharged and these matters should be heard together. This is not just about – you don’t have cases together – sorry. The Crown is not arguing – the fact that the Crown is not arguing tendency does not mean that therefore then severance must follow. There is a presumption of joinder, which is contained in the Criminal Procedure Act. ... If you have got a situation where on the defence that’s sought to be run, arguably [the applicant], a whole lot of prejudicial material is going to come in and [the applicant] cannot receive a fair trial because of the defence he’s running, then the two matters should be heard together.
Following the judge’s expression of her views, the prosecutor took instructions. In the result, he announced that the prosecution was ‘prepared’ to conduct a joint trial of the charges involving MK and PS:
[PROSECUTOR]: Could I just put on record, taking into account the offence approach to the matter.
HER HONOUR: Absolutely.
[PROSECUTOR]: Taking into account that defence are aware of potential difficulties of an indictment of 15 or 16 charges, and also directions that will have to be given by Your Honour to the jury in relation to not treating the evidence as propensity evidence - - -
HER HONOUR: Absolutely, yes.
[PROSECUTOR]: - - - given all those matters the Director, the prosecution, are prepared to join the trials.
HER HONOUR: Excellent.
The judge then discharged the jury.

29 June 2021: The third trial

On 29 June 2021, the applicant was arraigned on a new joint indictment (the ‘second indictment’) containing the six charges relating to PS (charges 1 to 6), and the 10 charges relating to MK (charges 7 to 16), and pleaded not guilty. The jury was discharged the next day, however, when two jurors sought to be excused in the wake of initial directions by the trial judge.

1 July 2021: The fourth trial

The applicant’s fourth trial, which resulted in the convictions from which leave to appeal is sought, commenced on 1 July 2021. In order to understand how the first ground of appeal is put, it is necessary to refer to several things that occurred in the course of the trial.
Hence, PS gave evidence in the prosecution case and was cross-examined, yet — notwithstanding the basis upon which the judge had invited the prosecution to consider conducting a joint trial — the applicant’s counsel did not put any allegation of collusion to her. After PS had been excused (and the lunch break had intervened), the judge raised the matter with counsel:
HER HONOUR: Thank you. [Defence counsel], it occurred to me over lunch that you hadn’t put to this witness that she colluded with [MK] to bring the charges. Which is why the whole trials were put together.
[DEFENCE COUNSEL]: Yes. I thought that was clear from her evidence in relation to - - -
HER HONOUR: No, you absolutely have to put it to her.
[DEFENCE COUNSEL]: Yes.
HER HONOUR: You can go to the jury and say the evidence points this way, but if you don’t, that’s Browne v Dunn. You actually must put the proposition to her.
[DEFENCE COUNSEL]: What I was going to put to her is matters that she would agree with, which is that she went to the police with the diaries in October 2016 - - -
HER HONOUR: Yes, but you need to put it to her straight.
[DEFENCE COUNSEL]: Yes.
HER HONOUR: You need to put it to her straight. And – do you agree with that [Prosecutor]?
[PROSECUTOR]: It’s my learned friend’s case. Forensically, that’s where it’s going to run, of course.
HER HONOUR: But if he doesn’t, then I’m going to have to direct the jury that it hasn’t been put to her and we don’t know what her answer would be.
[PROSECUTOR]: Well, that’s right, Your Honour. But I’m not running his case and - - -
HER HONOUR: No, I know you’re not running his case, I might just ask him to - - -
[PROSECUTOR]: - - - you’re 100 percent correct, Your Honour.
HER HONOUR: - - - on the law. Okay. If you don’t put it, Mr - - -
[DEFENCE COUNSEL]: Yes – yes.
HER HONOUR: The other thing you haven’t put is that what your client said in the record of interview was that his relationship with [MK] was perfect, but [PS] broke it up.
[DEFENCE COUNSEL]: Yes, I didn’t put that. Well, she obviously disagrees and I’m not going to be arguing that case.
HER HONOUR: No – no, but that’s your instructions.
PS was then recalled and there was further short cross-examination. Apparently dissatisfied with defence counsel’s ‘puttage’, the trial judge in the presence of the jury told counsel that he needed to put collusion to the witness. The relevant passage of cross-examination is as follows:
[DEFENCE COUNSEL]: Now, what we say is that you went to the police with your diaries in October 2016?---Correct.
You told police about matters involving [MK], is that correct?---Yes.
And you then encouraged [MK] to complain about your brother, [named]?---I did not encourage her. I was letting her know that I was making my statement. And I simply said my opinion that if he wanted to, like, I would support it, but I believe she needed justice.
All right, so you did that because, or you made your statement and you encouraged her to make her statement because you wanted to get back at your mother.
HER HONOUR: What do you say to that?
WITNESS: Well that’s just ridiculous.
[DEFENCE COUNSEL]: What do you say to that?---It doesn’t make any sense, no. I didn’t know my mother wouldn’t even be on my side here. I thought my mother always would’ve supported.
HER HONOUR: Okay, thank you. Yes.
[DEFENCE COUNSEL]: All right. And at some stage you discussed with [MK] how you could support her complaint against [the applicant]. Is that correct, true or false?---No.
And you made a further statement in January 2017 to support her complaint?---Well that is when I spoke to the police about her, making, yes.
And just to make it totally clear, we say that you’re not telling the truth about [the applicant] assaulting you, either physically or sexually, we say he did not.
HER HONOUR: What do you say to that.
[DEFENCE COUNSEL]: What do you say?---That is one hundred per cent lies.
HER HONOUR: Okay.
[DEFENCE COUNSEL]: In relation to [MK], he says that his relationship with [MK] was perfect, but you broke them up.
HER HONOUR: What do you say that.
[DEFENCE COUNSEL]: What do you say to that?---Well that’s just lies again.
HER HONOUR: Right.
[DEFENCE COUNSEL]: Okay. Thanks Your Honour.
HER HONOUR: Okay, you need to – and the ultimate proposition, about the alleged collusion?
[DEFENCE COUNSEL]: Well it doesn’t go as far as that Your Honour, it goes as – (to witness) you and [MK] have decided to make the allegations against [the applicant]?---Actually it doesn’t work like that, you simply speak to the police and they decide whether it’s something that should be brought forward. Thank you. That’s not my decision.
In the absence of the jury there was then the following exchange, in which the judge once more expressed her evident dissatisfaction with counsel’s cross-examination:
HER HONOUR: Are you going to the jury and saying look these two have put their heads together and they’ve concocted, they’ve each concocted stories against - - -
[DEFENCE COUNSEL]: At this stage I’ll be going to the jury together and say that neither of them are telling the truth.
HER HONOUR: Yes.
[DEFENCE COUNSEL]: At this stage I don’t think there’s enough evidence to say - - -
HER HONOUR: No
[DEFENCE COUNSEL]: - - - That there’s collusion between the two,
because - - -
HER HONOUR: But [defence counsel], if that’s your instructions.
[DEFENCE COUNSEL]: Yes.
HER HONOUR: The fact that there’s not evidence – if there’s not collusion, then these two trials shouldn’t be heard together, it’s not about whether you were going to find evidence, if that’s your client’s instructions, that these two have put their heads together, or even that [PS] has concocted an untrue version of events and then encouraged [MK] to put forward an untrue version of events.
[DEFENCE COUNSEL]: That is, I think
HER HONOUR: Well could you - - -
[DEFENCE COUNSEL]: - - - what our argument would be, and I don’t think legally that’s actually collusion, I - - -
HER HONOUR: Yes it is.
[DEFENCE COUNSEL]: Yes.
HER HONOUR: Yes it is, because she’s got to agree to do it. But if that’s the way you’re saying it happened, then it needs to put to – do you want, to be put to her directly. Which is (1) ‘you have made an untrue statement to police’, she’ll say ‘no’, and then you say ‘you convinced [MK] to make an untrue statement to police as well’. What do you say – all right? [Prosecutor], is that direct enough?
[DEFENCE COUNSEL]: Pretty direct, Your Honour.
HER HONOUR: Okay. Thank you.
[DEFENCE COUNSEL]: - - - encouraged [MK] - - -
HER HONOUR: Not encouraged. You convinced her. You’re saying both the statements are untrue. You’re saying that one – she – [PS] had started it, as I understand it, and then she’s got onto [MK] and said I’ve done a statement about [the applicant], and you should too. And you encouraged her to make an un – something like, you know, we’ve got him.
[DEFENCE COUNSEL]: Well that’s what my client’s instructions are.
HER HONOUR: Well then you put them. It’s not about whether there’s evidence or not. If that’s what your client’s saying he thinks happened, that’s what - then that’s what you do. All right?
[DEFENCE COUNSEL]: It’s an area I’m quite cautious about Your Honour.
HER HONOUR: You might be. But we have joined these trials because of your client’s instructions that these two have put their heads together to make up untrue statements about him. That’s his view. It’s his instructions
[DEFENCE COUNSEL]: Yes, that’s his view, yes.
HER HONOUR: Okay. All right. You could even put it that way if you wanted to.
[DEFENCE COUNSEL]: I’ll put it the way Your Honour’s recommended.
PS was then briefly — and not very effectively — cross-examined as follows:
[DEFENCE COUNSEL]: Two more pieces of puttage. I’m putting to you that you made an untrue statement to police. What do you say to that?---That’s false.
And I further put to you you’ve convinced [MK] to make an untrue statement to the police?---That is false.
What do you say to that – thank you very much.
[DEFENCE COUNSEL]: Thanks, Your Honour.
Later in the trial, when MK was under cross-examination, in discussion we need not set out, the trial judge once more had to prompt defence counsel to allege ‘concoction’. There then occurred the following passage of cross-examination — which, it must be said, does not represent a shining example of the advocate’s art — during which the trial judge once more prompted defence counsel:
[DEFENCE COUNSEL]: He doesn’t deny that you had sex, do you agree or disagree.
[PROSECUTOR]: (Indistinct).
HER HONOUR: No – that’s not necessary [defence counsel].
WITNESS: Of course he doesn’t deny that we had sex, ‘cause that’s bragging rights with him.
HER HONOUR: Okay, we don’t need to put that.
WITNESS: If he can’t take responsibility for the actions of his - - -
HER HONOUR: No, [MK], I’ve just stopped [defence counsel] from asking that, there’s no need to put that thank you.
[DEFENCE COUNSEL]: He does deny each of the occasions that you’ve alleged. Agree or disagree?---Um, disagree.
HER HONOUR: Okay, that’s fine.
WITNESS: If, if, if the relationship was so amazing, how he puts out here, I wouldn’t be here today.
HER HONOUR: Okay, thanks [MK]. Yes.
[DEFENCE COUNSEL]: And that he believed that you were older than 16, I think you’ve already said you disagree that - - -
HER HONOUR: That’s already been – you can’t – [defence counsel].
WITNESS: No, he knew exactly how old I was, he knew I was younger than his sister.
HER HONOUR: I made it clear that she can’t state as to belief. You’ve already put to her about whether or not she told him her age, and that covers it, thank you. Yes.
[DEFENCE COUNSEL]: All right, I think I finally have to put that she’s made untrue allegations to police and she’s done that in league with - - -
HER HONOUR: Okay, stop.
[DEFENCE COUNSEL]: Yes.
HER HONOUR: All right, you need to put one proposition, the proposition being that you’ve concocted these, in the way we talked about [defence counsel].
[DEFENCE COUNSEL]: Yes. You have concocted these allegations against [the applicant].
HER HONOUR: With [PS].
[DEFENCE COUNSEL]: In conjunction, together with [PS].
HER HONOUR: What do you say to that?---No, not at all, as I said we didn’t have any communication for years, it was one text message, I can show you.
No, that’s fine - - - ?---I can show you the message.
That’s fine, thank you [MK]. Yes.
[DEFENCE COUNSEL]: I don’t believe there’s further matters Your Honour.
HER HONOUR: There was also about – you wanted to put about denying an assault after [HJ] came around?
[DEFENCE COUNSEL]: Yes.
HER HONOUR: It’s – okay. Just put it.
[DEFENCE COUNSEL]: He denies an assault occurring after [HJ] came to the house.
HER HONOUR: Do you agree
[DEFENCE COUNSEL]: Do you agree or disagree?---Disagree.
HER HONOUR: Thank you [MK]. Yes.
Finally, we note that defence counsel advanced the following arguments in his final address:
You know that [MK] did not take any action to complain about [the applicant’s] alleged behaviour until a number of words he used. ‘Encouraged’. I’d use railroaded into it, by [PS] in 2016. But too young. Seems to have taken onto the complaint with as much gusto as her friend [PS].
…
[PS] goes off to the informant with her diaries, 10 years after her initial appointment. He has to read through them and record what she says for a statement.
Obviously, they include a little about contemporary matters, or contemporary, at the time, around 2000 – in relation to [MK]. So, she gets her evidence together and talks to [PS] about what the – the informant talks to [PS] about what the diaries say about [MK]. She makes a complaint about [the applicant] on behalf of [MK]. Indicates that she could help [MK] if [MK] wants to proceed with the complaint about them.
She can’t – [MK] currently says that she was going to make a complaint anyway, but one would wonder when, if not at that point, when she was urged into it by [PS]. And the trickiness of [PS], you’ll find at page – or one of the examples of the trickiness of [PS], was when she attended at the police station in October 2016. …
…
You have to ask yourself if that’s how an honest witness would be acting. [MK] made the required statement on tape and [the applicant] was arrested an interviewed whilst the girls, who are now women, mature women – it’s clear to them what the allegations were. That they had colluded; they knew the arrest was going to occur the following night apparently. Even then [PS] says they were together one night, [MK] says they were together two nights. So it’s close but just not quite accurate. But they knew the arrest was coming and were together at the time.
It’s a few months later that [PS] makes another statement in support of [MK’s] exaggerated complaints. …
…
… So as I’ve said and I’ve probably said too many times now, be very careful of the evidence of both those girls, and they are giving evidence as women, not children. You might consider some of the answers highly manipulative. They’ve had plenty of time to get any stories together. I won’t labour that point.

Ground 1: Was there impermissible joinder of charges?

As we have indicated, the prosecution’s initial position was that joinder of charges relating to MK and PS was improper. During the hearing on 5 March 2019, the prosecutor said, ‘It can’t happen as a matter of law’, and she made it plain that it was not for defence counsel ‘to say that the accused would prefer that those two matters be run together’. Similar sentiments were expressed in the course of the second trial, in which the prosecutor said that the matter had been ‘fully considered’, and there was ‘no way those two trials could be run together’.
Quite plainly, it was only after the judge expressed an apparently strongly held view that there should be a joint trial, and observed that there was a presumption that the two sets of charges could be heard together — and intervened to the extent of inviting the prosecutor to get further instructions — that the prosecution indicated that it was ‘prepared’ to conduct a joint trial of the charges relating to both complainants.
Apart from the prosecutor’s statement made immediately before the discharge of the jury in the second trial[17] — in which he asserted that, taking into account the position of the defence, the Director was ‘prepared to join the trials’ — it has never been explained how it was thought that the charges could or should be joined. Indeed, when counsel for the respondent was pressed in this Court, he simply resorted to not conceding that there was misjoinder.[18]
[17]See [34] above.
[18]See [61]–[62] below.
As to that, we pause to observe that, in our opinion, had the prosecution resisted joinder of the two sets of charges, it is extremely doubtful that the trial judge possessed power to order joinder (even if joinder were otherwise permissible). That view is supported by Cooper,[19] a case in which the applicant complained that the Director of Public Prosecutions had failed to join counts of armed robbery and burglary in a single presentment; and that the Chief Judge of the County Court had been wrong in failing to order — on an application by the defence — that charges of burglary be joined on the same presentment with a charge of armed robbery. In that case, the prosecution contended that it was not possible to join the two sets of charges, since they were neither ‘founded on the same facts’, nor formed ‘part of a series of offences of the same or a similar character’, as required by Rule 2 of the Presentment Rules in the Sixth Schedule of the Crimes Act 1958. Ormiston J (with whom Young CJ and Murray J agreed) doubted that there was any power ‘to order consolidation of criminal trials’ (although other inherent powers might be utilised to prevent an abuse of process). We know of no authority that would suggest otherwise.
[19]R v Cooper (Unreported, 19 February 1988, Vic, CCA, Young CJ, Murray and Ormiston JJ) (‘Cooper’).

In that general vein, we note that in oral argument in this Court senior counsel for the applicant said that he and junior counsel ‘have been unable to find a single instance … where defence counsel has sought to join charges on two separate indictments involving two complainants for forensic reasons’. So much accords with our experience. Indeed, the only case we have ever encountered in which the defence sought to compel joinder of charges which the prosecution had not sought to join in a single presentment or indictment — as opposed to failing to ask for severance — is Cooper (which, as we have indicated, was not a case of sexual offending involving more than one complainant).

Joinder of related offences involving multiple complainants in a single indictment

Whether charges involving more than one complainant are properly joined in an indictment is dictated by the terms of the CPA.
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’. By reason of s 159(3)(c), an indictment must (apart from other requirements) ‘comply with Schedule 1’. Significantly, cl 5(1) of Schedule 1 provides that an indictment ‘may contain charges for related offences’.[20] Also significantly, s 3(1) defines ‘related offences’ as follows:[21]
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.
[20]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’.
[21]Emphasis added.
By virtue of s 193(1), if an indictment contains more than one charge, the court may order that any one or more of the charges be tried separately. Subsection (2) provides that the court may make an order under s 193(1) if the court considers that the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment, or for any other reason it is appropriate to do so.
Further, s 170(1) of the CPA provides: ‘If an indictment contains more than one charge, the charges must be heard together unless an order is made under section 193 or 195’.
And, finally, s 166(1) provides: ‘An indictment is not invalid by reason only of a failure to comply with Schedule 1’.
Recently, in Fleming,[22] a case where charges of murder and rape had been joined in a single indictment, this Court had cause to consider when charges are ‘founded on the same facts’, or ‘form, or are part of, a series of offences of the same or similar character’.
[22]Fleming (a pseudonym) v The Queen [2021] VSCA 206 (Priest, Kyrou and Niall JJA) (‘Fleming’).
Having carried out an extensive review of authority, including what Dawson J said in De Jesus[23] concerning whether charged offences constitute a series of offences of the same or similar character, the Court in Fleming observed:[24]
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.
[23]De Jesus v The Queen (1986) 68 ALR 1, 9.
[24]Fleming, [67].
As to whether offences are founded on the same facts, once more after an extensive review of authority, the Court in Fleming said[25] 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.
And the Court went on to observe[26] that the
‘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.
[25]Ibid [86]–[87].
[26]Ibid [90].
In our view, it is plain that the charges involving MK and PS were neither founded on the same facts, nor formed, or were part of, a series of offences of the same or similar character.

The applicant’s submissions

In oral argument, senior counsel for the applicant submitted that ‘from the very beginning the prosecution … correctly and emphatically insisted [the indictment] could not go before a jury because the charges were not properly joined’. He drew attention to cl 5 of Schedule 1 of the CPA, and submitted that charges 1 to 6 involving PS, and charges 7 to 16 involving MK, were not properly joined in the indictment. Counsel submitted that the trial judge’s repeated reference to the ‘presumption’ in s 194 of the CPA — that when charges for sexual offences are joined in the same indictment, ‘it is presumed that those charges are to be tried together’ — misunderstood that s 194 presupposes that the charges for the relevant sexual offences have been properly joined in the first place. The so-called presumption has no work to do if the sexual offences are not ‘related offences’ within the meaning of cl 5 of Schedule 1.
Counsel submitted that, assuming that there was ‘a good faith basis for putting collusion’, there was little or no forensic advantage to the applicant flowing from joinder of the charges. Indeed, the applicant suffered ‘a tsunami of insuperable prejudice’. The jury got to hear that he had offended against two underage females, in circumstances where his ‘defence’ in relation to PS was that nothing occurred, and his defences in relation to MK were that he believed her to be aged 17, and he did not treat her badly.
In ‘cascading’ propositions, counsel submitted: first, there was a fundamental defect in a trial of all charges proceeding on the one indictment; secondly, even if counsel had instructions, and ‘the puttage was legitimate and properly founded’, trial counsel’s forensic choice ‘betrays irrationality’ when objectively viewed; and, thirdly, if counsel did not ‘have a proper foundation to commence the chain of events that led to a joint trial’, and ultimately pursued ‘a forensic strategy without a proper basis’, he had breached his duties. Counsel emphasised that concoction and collusion could have been put in a trial of charges involving MK without joinder of the charges involving PS.

The respondent’s submissions

Counsel for the respondent submitted that the present case ‘is a rerun of Mulligan’.[27] Rhetorically, counsel asked, ‘His defence is collusion, how can he run collusion unless they’re both there?’, and he submitted, ‘You can’t run it unless they’re both there’. Somewhat curiously, although counsel had to ‘confess’ that he did not know why ‘ultimately they were joined’, he did not ‘concede that there was mis-joinder’. As we understood his submissions, however, he offered no explanation as to how the charges could properly have been joined.
[27]Mulligan (a pseudonym) v The Queen [2017] VSCA 94 (Redlich, Weinberg and Priest JJA) (‘Mulligan’).
When asked directly by the Court whether he was submitting that the charges were ‘related offences’, counsel responded that he was ‘not conceding that they were improperly joined’. (Counsel’s failure to grapple directly with the question — so it seemed to us — amounted to an implied acknowledgment that they were not related offences.) Senior counsel submitted that it was, in any event, a ‘red herring’ in light of s 166(1) of the CPA, which provides that an indictment ‘is not invalid by reason only of a failure to comply with Schedule 1’. And unlike s 194, s 166 does not presuppose that charges are properly joined. And even if there had been ‘misjoinder’, it was not a ‘fundamental defect’.
Ultimately, counsel submitted that any risk of prejudice flowing from a joinder of the charges was ameliorated by strong separate consideration and anti-propensity reasoning directions by the judge.

Discussion

As we have mentioned, s 159(3)(c) of the CPA provides that an indictment filed by the DPP or a Crown Prosecutor ‘must … comply with Schedule 1’. In order that there be compliance with Schedule 1 — and, in particular, cl 5(1) — only charges for related offences may be joined in an indictment. It is thus a mandatory statutory requirement that only charges for 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, may be joined in an indictment.
Importantly, nothing in the CPA permits that mandatory requirement to be waived, or permits an accused person to consent to joinder of charges in an indictment in disobedience of that mandatory requirement.[28] Hence, if the charges against MK and PS were not for related offences — and in our view they were not — as a matter of law they simply could not be joined in a single indictment, no matter the attitude of the applicant.
[28]In Brown v The Queen (1986) 160 CLR 171 — a case in which an accused person purported to waive the requirement in s 80 of the Constitution that ‘the trial on indictment of any offence against any law of the Commonwealth shall be by jury’ — Gibbs CJ observed (at 178) that ‘it has been a principle of statutory interpretation ever since the time of Sir Edward Coke — expressed in the maxim quilibet potest renunciare juri pro se introducto — that any person can waive a statutory provision introduced entirely for his or her own benefit’, but that if ‘the provision is enacted for the benefit of the public, a private individual cannot waive it’. Of course, the presumption must give way to any express words in the relevant statute to the contrary, the matter always being one of construction.
As we have said, we consider that the two sets of alleged offences were not founded on the same facts. In the seminal case, Barrell and Wilson,[29] it was made clear that charges will be ‘founded on the same facts’ if they ‘have a common factual origin’. Thus, Shaw LJ (delivering the judgment of the Court) said:[30]
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.
[29]R v Barrell and Wilson (1979) 69 Cr App R 250.
[30]Ibid 252–3 (emphasis added).
Quite plainly, the applicant’s alleged offending against his sister, PS, does not have a common factual origin with the alleged offending against his former girlfriend, MK.
Nor can it be said that the two sets of offences form, or are part of, a series of offences of the same or similar character. In general, the alleged offending with respect to PS is incestuous in nature accompanied by a degree of compulsion, whereas the sexual offending alleged against MK relates to consensual sexual activity with a child under 16 who is not a relative. Furthermore, the two sets of offending are temporally disconnected, having allegedly occurred five years apart. There is no nexus or connection between them, and — ‘without straining the word beyond the meaning which it is reasonably capable of bearing’ — there is insufficient correlation to enable them to be described as a ‘series’.
Since it is clear that the charges against MK and PS were not properly joined, it is plain that there has been an ‘error or an irregularity in, or in relation to, the trial’ within the meaning of s 276(1)(b) of the CPA. The live question is whether, as a result of that error or irregularity, ‘there has been a substantial miscarriage of justice’. As to that, at one point in oral argument, senior counsel for the applicant seemed to suggest that a trial on an indictment containing improperly joined charges was a ‘nullity’; and at another point that a trial on improperly joined charges constituted a ‘fundamental irregularity’ which could not be waived. The starting point, however, must be the words of the statute, which, as we have said, require that there be a substantial miscarriage of justice as a result of the error or irregularity in, or in relation to, the trial.
As was made clear in Baini,[31] however, there is no ‘single universally applicable’ definition of a ‘substantial miscarriage of justice’. That is because the possible kinds of miscarriage of justice dealt with by s 276(1) are ‘too numerous and too different to permit prescription of a singular test’. With respect to s 276(1)(b) (and (c)), the types of substantial miscarriage of justice include cases where ‘there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial’. Paragraph (b) (and paragraph (c)) also covers cases where ‘there has been a serious departure from the prescribed processes for trial’.[32] Moreover, a ‘substantial miscarriage of justice’ may occur where there has been a ‘departure from process’ even if the ‘verdict was open or it is not possible to conclude whether the verdict was open’. In cases where evidence has been wrongly admitted or excluded, the court cannot determine that there has been no substantial miscarriage of justice ‘unless it determines that it was not open to the jury to entertain a doubt as to guilt’. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made’.[33]
[31]Baini v The Queen (2012) 246 CLR 469 (‘Baini’).
[32]Ibid 479 [26].
[33]Ibid 479–80 [27].
We consider the joinder of the two sets of charges involving PS and MK was a serious departure from the prescribed processes of a trial. The mandatory statutory requirement that only charges for related offences be joined in an indictment was ignored (albeit with the consent or acquiescence of the defence). As a result — as senior counsel for the applicant somewhat colourfully put it — there was ‘a tsunami of insuperable prejudice’ which infected the applicant’s trial. In particular, when the jury came to evaluate the applicant’s ‘defence’ in relation to the charges involving MK, they fell to do so in the wake of allegations that he had compelled his sister — aged between nine and 11 years — to take part in penetrative sexual activity. The jury would likely have found the applicant’s alleged activities to have been repugnant. Judicial directions and warnings would be unlikely to hold back the tide of prejudice flowing as a result. Had there not been a joint trial of the two sets of charges the jury would not have been confronted with the prejudicial evidence of the applicant’s offending in relation to one complainant when evaluating the charges relating to the other. Indeed, we consider that ‘the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made’.
In so concluding, we reject the contention that the allegation of collusion in MK’s case — that is, that PS put MK up to making false allegations — could not have been made unless the two sets of charges were joined. We also reject the contention that the allegation of collusion made to PS as a witness in MK’s trial would necessarily have led to the introduction of evidence concerning the alleged offending against PS. In a trial of the charges involving MK, any cross-examination of her and PS concerning the allegation of collusion could — with a modicum of skill exercised by the cross-examiner, and with adequate judicial management — have been conducted in such a way that evidence of the applicant’s alleged incestuous offending was quarantined. We are at something of a loss to comprehend why it was thought that an allegation of collusion in a trial of the MK charges would necessarily invite or permit wholesale ventilation of the alleged offending against PS.
As was made clear in Baini, not every departure from the prescribed processes of a trial will lead to the conclusion that there has been a substantial miscarriage of justice. And, as we have said, apart from Cooper, we know of no case which is directly analogous, in the sense that the accused has consented to, or acquiesced in, the joinder in one indictment of charges against multiple complainants which are not based on the same facts, or which do not form, or are not part of, a series of offences of the same or similar character.
There are cases, however, in which the single trial of an accused person on multiple indictments, in circumstances where the charges contained in the multiple indictments could properly have been joined in a single indictment, have been described as a ‘nullity’ or an ‘irregularity’. Thus, in McDonnell,[34] the English Court of Criminal Appeal held that the trial of different offences appearing in different indictments cannot be taken together, and the resulting trial was a ‘nullity’. Similarly, in Olivo, Tucker J (delivering the judgment of the Court) said:[35]
It appears to be the fact that three indictments were tried together at the same time. That irregularity is most unfortunate for several reasons. First, there is no reason why all these three charges should not have been included in one indictment, in which case there would have been no objection to all three being investigated together. That would have been the proper and normal procedure to adopt. Furthermore, in this particular case there appear to be no merits in the appeal. None the less, it has for a great number of years been elementary in criminal procedure that, if there is more than one indictment, the indictments cannot be tried together, and any so-called trial at which such a procedure has been adopted is a complete nullity.
[34]R v McDonnell (1928) 20 Cr App R 163 (‘McDonnell’).
[35]R v Olivo (1942) 28 Cr App R 173 (Viscount Caldecote LCJ, Tucker and Cassels JJ) (emphasis added).
McDonnell was followed in Landy,[36] a case in which the applicant had been convicted at trial on two charges of false pretences and one charge of larceny. One charge of false pretences was contained in one indictment, and the other charge of false pretences and larceny were contained in a second indictment, in circumstances where the three charges were of a kind, and represent offences committed upon a date, which would have made it quite proper and usual for all three to have been joined in one presentment, and accordingly tried together.[37] Giving the judgment of the Court, Mann CJ said:[38]
Upon the whole, the position seems to be this, that both the Indictment Act 1915 in England and the Presentments Act 1916 in Victoria, while providing that different offences might be included in one presentment or in England in one indictment, and thereupon tried together subject to the discretion of the trial Judge, make no provision for trying offences of the same kind together if included in separate indictments. It is difficult to support the objection on grounds of reason, but we have after careful consideration come to the conclusion that we should follow the decision of the English Court and substantially on this simple ground, that whereas the Presentments Act (now the Crimes Act 1928, sec. 397 and following) has altered the law by allowing more than one offence to be tried together, it has either deliberately or from oversight omitted to authorise their being tried together where the offences are set out in two separate presentments.
We think, therefore, that the convictions appealed against should be set aside on this ground …
[36]R v Landy [1943] VLR 73 (Mann CJ, Gavan Duffy and Martin JJ).
[37]Ibid 73–4.
[38]Ibid 74–5.

Finally, in Scott,[39] the applicant was tried in the County Court on two presentments, one charging him with nine counts of theft and two of damaging property, and the other with 21 counts of theft and seven of damaging property. Allowing an appeal against conviction, Young CJ said (giving the judgment of the Court):
It is a little curious that the offences with which the applicant was charged might all have been joined together in the one presentment without breach of the Presentment Rules. The fact, however, is that they were not and, accordingly, the position is that there was no jurisdiction in the County Court to have the two presentments tried together. That conclusion is established by an earlier decision of this Court in R v Landy [1943] VLR 73 which was itself based on a long line of English authority. …
There being no jurisdiction in the County Court to have tried the applicant on the two presentments concurrently, it has from time to time been said that the trial is a nullity, whatever that might mean. If the trial were a nullity, there might be thought to be some difficulty in seeking leave to appeal to this Court against a conviction which is also a nullity.
[39]R v Scott (Unreported, 2 June 1987, Vic, CCA, Young CJ, Kaye and Gray JJ) (‘Scott’).
The irregularity in the Victorian cases of Landy and Scott involved departure from the prescribed processes of a trial by conducting a single trial on multiple presentments or indictments, in circumstances in which the charges in the multiple presentments or indictments could have properly been joined in a single presentment or indictment. In the present case, the irregularity consisted of the trial of the applicant on a single indictment in which the charges involving different complainants could not properly have been joined in one indictment. There should have been two separate indictments and two separate trials. As a result of the departure from the prescribed processes of a trial in the present case, the jury was confronted with a deal of prejudicial and otherwise inadmissible evidence in their consideration of the charges relating to each complainant. To that extent, the ramifications of the irregularity for the jury’s consideration of the cases relating to each complainant, were far more serious than the irregularity in Landy and Scott.
As we have mentioned, counsel for the respondent submitted that the present case ‘is a rerun of Mulligan’[40] (which, incidentally, involved the same trial defence counsel). It is not. In Mulligan, the applicant was tried on charges of intentionally causing injury and rape (two charges) involving an adult female, ‘MG’; and charges of intentionally causing injury, rape, making a threat to kill and false imprisonment involving another adult female, ‘ST’. The defence that was ultimately run was that MG and ST were ‘women scorned’. It was put that both complainants had a motive to fabricate allegations of rape against the applicant, and that MG had been prompted into making her complaint by learning of ST’s allegations.
[40]See [61] above.
The important difference between Mulligan and the instant case is that it was not suggested in Mulligan that the charges against the two complainants, MG and ST, were not properly joined in the indictment. Rather, defence counsel at trial should have sought a separate trial, despite instructions not to do so. By reason of there having been a joint trial of the allegations made by both MG and ST, there had been a substantial miscarriage of justice. The crux of the applicant’s argument was that the particular defence run at trial — that the complainants were ‘women scorned’ — did not require that there be a joint trial. Instead, there should have been separate trials, each involving one of the complainants. And it was submitted that the defence that was ultimately run — that both complainants had a motive to fabricate allegations of rape against the applicant, and that MG had been prompted into making her complaint by learning of ST’s allegation — could have been advanced without the overwhelming prejudice associated with the conduct of a joint trial.
Having referred to and cited a number of authorities — including TKWJ,[41] Knowles,[42] Nicholls,[43] Birks,[44] Nudd[45] and Patel[46] — this Court recognised that trial counsel had been put in ‘an invidious position’. He had been given unequivocal instructions not to seek separate trials, but to run a ‘women scorned’ defence in the context of a joint trial. Despite what the applicant contended on appeal, however, the Court held it was not impossible to conduct a defence of that kind. Such a defence did, however, ‘require a measure of finesse and nuance, which was not ultimately achieved’.[47] But it could not be said ‘that there was no rational basis upon which the applicant might have conducted his defence as he did even though, in the context of a joint trial, there would have been some significant disadvantage in doing so’.[48] The Court ultimately observed:[49]
Certainly, it cannot be said that in the present case trial counsel’s conduct was ‘flagrantly incompetent’. Indeed, it might fairly be said that, faced with the applicant’s instructions, trial counsel had no choice but to conduct the trial in the way that he did. Contrary to the applicant’s submissions before this Court, he was under no obligation to withdraw, rather than present the defence that he did.
[41]TKWJ v The Queen (2002) 212 CLR 124, 147–50 [74]–[77], [79]–[80] (McHugh J) (‘TKWJ’).
[42]Knowles (a pseudonym) v The Queen [2015] VSCA 141, [131] (‘Knowles’).
[43]Nicholls v The Queen [2016] VSCA 250 (‘Nicholls’).
[44]R v Birks (1990) 19 NSWLR 677, 685.
[45]Nudd v The Queen (2006) 225 ALR 161.
[46]Patel v The Queen (2012) 247 CLR 531, 562 [114] (French CJ, Hayne, Kiefel and Bell JJ).
[47]Mulligan, [70].
[48]Ibid [64].
[49]Ibid [72].
Nicholls was also referred to in oral argument. In that case, the appellant was convicted at trial of two charges of intentionally causing serious injury. His counsel did not seek severance of the indictment so as to effect a separate trial of the charges. The charges related to two separate incidents, more than five months apart, each of which involved the appellant allegedly shooting his (different) victims. Unlike the present case, the charges on the indictment were properly joined. Hence, a ground which contended that there had been misjoinder was rejected by the majority (Osborn and Santamaria JJA), who held that the two charges on the present indictment were ‘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’. They said:[50]
In the present case, there was ‘a sufficient correlation to enable the offences to be described as a “series”’. The test is straight-forward and readily satisfied; any injustice is guarded against, as Dawson J said in De Jesus v R, ‘because of the discretion given to the trial judge to direct separate trials if prejudice to the accused is likely to arise from the joinder’.[51] The charges were in respect of the same offence: intentionally causing serious injury; the circumstances in which the conduct was said to have occurred was similar: the offences were said to have involved drug debts; the mode of the offending were sufficiently similar: the victim was shot in the leg; and, finally, the offences took place within only a seven month period.
[50]Nicholls, [59].
[51](1987) 61 ALJR 1, 9.
In Nicholls it was also contended that the trial miscarried because defence counsel’s forensic decision not to seek separate trials could be explained ‘on the basis that it resulted or could have resulted in a forensic advantage’ to the appellant.[52] Maxwell P would have upheld the appeal on the basis that any forensic advantage accrued to the appellant from having the charges heard together was slight in comparison with the disadvantage resulting from that course, so that it could not be said that the failure to seek severance was the result of an informed and deliberate decision.[53] Osborn and Santamaria JJA, however, considered that there was no miscarriage of justice resulting from defence counsel’s failure to seek separate trials of the two charges, since it could not be said that it was not reasonably open to make the forensic choice to have the two charges heard together. Adopting that course permitted an attack on a principal prosecution witness’s credibility, which was the ‘cornerstone’ of the defence.[54]
[52]TKWJ, 133 [27]; James v The Queen (2013) 39 VR 149, 6 [14]; Knowles, [131]–[134].
[53]Nicholls, [4], [31].
[54]Ibid [117].
As we have indicated, the important difference between the present case on the one hand, and Mulligan and Nicholls on the other, is that in the instant case the two sets of charges involving the two different complainants were not properly joined.
The unhappy fact is that the two sets of charges in the applicant’s case came to be joined as a result of the trial judge’s interference. Initially the prosecution stated emphatically, ‘as a matter of law’, that the charges could not be joined, an attitude that was thereafter repeated. That position was entirely correct. As has been seen, the prosecution’s attitude only changed during the second trial after the trial judge pressed the prosecutor to seek instructions with a view to having the two sets of charges joined in the one indictment. The judge’s invitation was, however, based on two flawed premises: first, that collusion could not be advanced by the defence unless there was a joint trial of the charges; and, secondly, there was a presumption that the charges could be joined. In the result, the prosecution succumbed to the judge’s importuning and joined the charges in a single indictment. The prosecution was wrong to do so. And defence counsel was wrong to have acquiesced in the course adopted.
Theoretically, had a mantle of enlightenment descended upon him, the applicant’s trial counsel could then have sought severance of the indictment. Given the attitude of the judge, however, any such application would doubtless have failed.
As we have said, the applicant’s trial counsel acquiesced in the charges being joined. He should not have done so. The decision not to have challenged joinder cannot have been the product of any rational forensic decision. Gaudron J explained the relevance of that fact in TKWJ:[55]
The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that was fairly open’. The word ‘fairly’ should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.
One matter should be noted with respect to the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.
As already indicated, if there is a defect or irregularity in the trial, the fact that counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel’s conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.
Even though there is no defect or irregularity in a trial, a question may arise whether there was a miscarriage of justice. Such is the case, for example, when it is argued that a verdict should be set aside because of the discovery of evidence that was not available or, with reasonable diligence, could not have been made available at the trial — ‘fresh evidence’, as it is usually called. The question may also arise if counsel fails to call evidence that was available or fails to elicit evidence in cross-examination. In that situation, it has been customary to focus on the competence of defence counsel, it being said that there must be ‘flagrant incompetence’, an ‘egregious error’, ‘extreme conduct’ or ‘significant fault’. Thus it was that the argument in the present case was premised on counsel having made a ‘wrong’ decision.
Apart from the difficulties involved in an appellate court reviewing the conduct of counsel to determine whether it justifies one or other of the above descriptions or, even, whether it involved error, that is not an exercise that is directly required by s 6(1) of the Criminal Appeal Act. Relevantly, the question posed by s 6(1) is whether ‘on any other ground . . . there was a miscarriage of justice’. The words ‘on any other ground’ do not postulate the demonstration of error. Rather, they simply require that ‘something occurred or did not occur’ in the trial.
As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of ‘flagrant incompetence’, ‘egregious error’ or the like.
An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial. …
[55]TKWJ, 133–4 [26]–[32] (footnotes omitted; emphasis added).
And as was observed in Knowles:[56]
TKWJ reinforced earlier decisions which had emphasised that where it is contended on appeal that a trial went wrong because of counsel’s ‘flagrant incompetence’,[57] what must be investigated is whether the process failed so as to result in a miscarriage of justice; rather than upon why — that is, the alleged incompetence of counsel — the process failed. But the importance of TKWJ is that it was stated or agreed in by four of their Honours, with more or less emphasis, that in determining whether the process failed, the subjective reason why counsel took the course complained of — it might be not seeking a particular direction, or making a particular submission, or not adducing particular evidence — was ordinarily irrelevant. The question whether the process failed, in the kind of case now under discussion, was to be resolved by deciding whether the course taken, objectively ascertained, was capable of explanation as having been taken for the purpose of obtaining a forensic advantage (although the fact that a forensic advantage might be objectively perceived did not necessarily mean that there had been no miscarriage of justice). Framing the enquiry that way gave due recognition to the fact that counsel will likely make many forensic decisions in the course of a trial, and an accused is ordinarily bound by the way in which his or her counsel conducted the trial.
[56]Knowles, [131] (emphasis in original).
[57]A term used by Gleeson CJ, when his Honour was Chief Justice of the New South Wales Supreme Court, in R v Birks (1990) 19 NSWLR 677.
As we have endeavoured to explain, the charges involving MK and PS were not related offences. They could not (and should not) have been joined in the one indictment. Joinder of the charges in the one indictment — resulting from the judge’s insistence that that was the correct course — was an error or an irregularity in, or in relation to, the trial. Although, ultimately, defence counsel acquiesced in that joinder, his acquiescence in that course — and his subsequent failure to seek a separate trial of the charges — cannot be said to be the product of a rational forensic decision. It resulted in immense prejudice to the applicant, with little or no forensic advantage. As a result, there has been a substantial miscarriage of justice, since the result of the trial (or trials) may have been different had the error not been made.

We would accordingly grant the application for leave to appeal against conviction; allow the appeal; set aside the convictions; and order that there be new trials.

MACAULAY JA:

I have had the advantage of reading in draft the reasons for judgment of Priest and Taylor JJA. They have concluded that the charges involving MK and PS were not for related offences and ‘could not’ and ‘should not’ have been joined in one indictment. For that reason they find that there was an error or irregularity in the trial which occasioned a substantial miscarriage of justice.
I agree that the charges involving MK and PS were not for related offences. I further agree that the charges relating to MK ‘should not’ have been joined with the charges relating to PS. I reached that conclusion for all the reasons advanced by the applicant’s counsel — and referred to by Priest and Taylor JJA — as to why the acquiescence of defence counsel to the joinder, on the grounds of a supposed forensic advantage (or, perhaps the avoidance of a forensic disadvantage) to his client, lacked a rational foundation.
Although the respondent argued that there was a rational foundation because the applicant’s consistent instructions were that the two women had colluded in making their complaints, the two complainants had a mutual loathing of the applicant, and they met together before the charges were laid — any forensic advantage to the applicant in having a joint trial was at best only ‘slight’ in comparison to the gravity of the prejudice a joint trial would introduce.
The forensic advantage could only have worked one way — that is, the defence of collusion was only applicable to the charge relating to the complaint made by MK. MK’s complaint was said to be the product of PS’s encouragement or incitement, not the other way around.
Moreover, as defence counsel appeared to concede during the trial, the evidence for actual collusion, beyond his client’s assertion, was scant. Such an analysis ought to have been drawn from the outset. The transcript of the trial discussions between the judge and defence counsel (including the discussion of pre-trial issues, the ‘first’, ‘second’ and ‘third’ trials) does not reveal careful analysis on the part of defence counsel of the evidentiary elements of the collusion defence, and how they may be put to the complainants in either a separate trial or joint trial situation. Acknowledging that the test for the existence of a rational foundation is objective,[58] nevertheless no support for the existence of a rational foundation is derived from examining those discussions nor from observing the way that collusion was put to the witnesses or argued before the jury.

[58]TKWJ v The Queen (2002) 212 CLR 124, 131 [17], 133 [27], 158 [107].

Had the trials of the two sets of charges been conducted separately, and the allegation of collusion put to MK and to PS (as a witness in the trial of the complaint made by MK), any insuperable prejudice resulting from the jury hearing of a complaint made by the ‘other girl’ would at least have been confined to the one trial.
In my view, the result of the joinder was that the applicant was deprived of a fair trial such that the joinder occasioned a substantial miscarriage of justice. Whether or not the joinder was an irregularity or error, the joinder was at least an ‘other reason’ for that substantial miscarriage of justice: CPA, s 276(1)(c).

At the present time, however, I refrain from reaching the conclusion that joinder ‘could not’ have been properly made even if the offences were not ‘related offences’. As Priest and Taylor JJA point out, in R v Cooper[59] this Court doubted that a judge had the power to order the consolidation of criminal trials for unrelated offences. But that is not what happened here. Here, the Crown agreed to join the charges on the one indictment, seemingly persuaded because the judge was convinced that, not doing so, would make it very difficult for the applicant to conduct his defence of mutual collusion without the two complaints being heard together and the credit of each complainant being tested in front of the same jury. Defence counsel at least acquiesced in such a course, if not positively embraced it, for the forensic advantage which he perceived.
[59]See fn 17 above.
Clause 5 of Schedule 1 to the CPA does not say, in terms, that only related offences may be joined in the one indictment. Rather, it provides that the Crown ‘may’ join charges if they are for related offences. The CPA does not expressly forbid the joinder of unrelated offences in circumstance where it may be perceived that a joint trial would better promote a fair trial for the accused.
Perhaps, in light of the antecedent common law, the correct statutory construction is that the CPA mandates that only charges for related charges may be joined in an indictment. But, since it is unnecessary to reach that conclusion to agree in the disposition that Priest and Taylor JJA propose, I am not presently prepared to say that, as a matter of law, charges for unrelated offences may never be joined in the one indictment.
I agree in the orders proposed by Priest and Taylor JJA.
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[2022] VSCA 278

15 December 2022