Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : MIHIC -v- THE STATE OF WESTERN AUSTRALIA [2006] WADC 107

Criminal law and procedure - Jurisdiction, practice and procedure - Information, indictment or presentment - Joinder of offences - Joinder of offenders - Offences part of a series of the same or a similar character - Offences alleged to arise substantially out of the same or closely related acts or omissions - Offences properly joined

Criminal Procedure Act 2004 (WA), s 133, Sch 1

Ah Poh Wai v The Queen (1995) 15 WAR 404

Barnes v The Queen [2001] WASCA 86

Beck & Smith v R [1984] WAR 127

Connelly v Director of Public Prosecutions [1964] AC 1254

Cookson (1989) 45 A Crim R 121

De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1

Director of Public Prosecutions v Merriman [1973] AC 584

Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19

Lancaster v The Queen [1989] WAR 83

Leaman (1987) 28 A Crim R 104

Ludlow v Metropolitan Police Commissioner [1971] AC 29

Mackay v The Queen [1977] HCA 22; (1977) 136 CLR 465

Mihic v The State of Western Australia [2006] WADC 107

Patsalis [1999] NSWSC 649; (1999) 107 A Crim R 432

R v Anderson [1994] 2 Qd R 409

R v Bargenquast (1981) 5 A Crim R 126

R v Barker, Alderman and Hughes [1993] 2 Qd R 673

R v Barrell and Wilson (1979) 69 Cr App R 250

R v Bellman [1989] AC 836

R v Clayton-Wright [1948] 2 All ER 763

R v Collins; Ex parte Attorney-General [1996] 1 Qd R 631

R v Conley (1982) 30 SASR 226

R v Connell (No 1) (1992) 8 WAR 518

R v Cranston [1988] 1 Qd R 159

R v Crawford [1989] 2 Qd R 443

R v Danes and Taylor [1965] Qd R 338

R v Demirok [1976] VicRp 19; [1976] VR 244

R v Ford [1967] Tas SR 20

R v Harbach (1973) 6 SASR 427

R v Kray [1970] 1 QB 125

R v Leslie [1989] 2 Qd R 378

R v Phillips [1967] Qd R 237

R v Pinkstone [2001] WASC 137

R v Potter [1959] Qd R 378

R v Russell, Szann and Patterson (No 2) [1965] Qd R 334

R v Sims [1946] KB 531

Rintel v The Queen [1986] WAR 175

Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528

Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41

1 STEYTLER P: This appeal raises the question whether charges against different persons were properly joined in one indictment. The charges in the indictment read as follows:

"On 13 September 2002 at Perth Norbert John Mihic and Andhra-Kumar Ponnusamy had in their possession a prohibited drug, namely 3, 4-Methylenedioxy-N, alpha-Dimethylphenylethylamine (MDMA) with intent to sell or supply it to another ["count 1"].

On 13 September 2002 at Perth Norbert John Mihic and Andhra-Kumar Ponnusamy sold a prohibited drug, namely 3, 4-Methylenedioxy-N, alpha-Dimethylphenylethylamine (MDMA), to another ["count 2"].

On 13 September 2002 at Kensington Daniel William Zammit attempted to possess a prohibited drug, namely 3, 4-Methylenedioxy-N, alpha-Dimethylphenylethylamine (MDMA), with intent to sell or supply it to another ["count 3"]."

The primary Judge ruled that the joinder was appropriate. The appellant takes issue with that conclusion.

2 At the trial, the prosecutor proposes to lead evidence which, he contends, will establish the following facts.

3 The appellant, who lives in Perth, moved for a short time in about 2000 or 2001 to the Gold Coast in Queensland. There, he met Daniel Nardone. The two men spoke about drugs. The appellant told Nardone that he could "get rid of a heap of ecstasy tablets over in Perth" and that he would "pay $23 or $24 per ecstasy tablet if they were delivered to Perth". About a year later, in early 2002, Andhra-Kumar Ponnusamy was conducting an illicit drug business in the Eastern States. He was contacted by Nardone. Ponnusamy thereafter supplied Nardone with small quantities of MDMA or ecstasy, ranging from 50 to 100 tablets, on a regular basis. Nardone on-sold the MDMA to others. After a while, Ponnusamy asked Nardone if he could sell larger amounts of MDMA to anyone. Nardone told Ponnusamy that he knew someone in Perth who might buy larger amounts and who was willing to pay $23 or $24 per tablet. Nardone did not say who this was. However, he was thinking about the appellant.

4 In about September 2002, after ascertaining that the appellant was still willing to buy a large amount of MDMA tablets (he understood that the appellant would buy at least 5000 tablets), Nardone arranged with Ponnusamy that he and Ponnusamy should travel to Perth to supply Nardone's contact with the tablets. Nardone called the appellant and made it plain to him that Nardone was "with the person who would organise bringing the ecstasy to Perth". They travelled to Perth on 12 September 2002. Ponnusamy arranged for a third man also to travel to Perth. He was to bring with him a large quantity of MDMA tablets. Ponnusamy told Nardone that he had made this arrangement but did not identify the man who would carry the drugs. In fact, this man was Norbert Mihic. Ponnusamy did not tell Nardone "exactly" how many MDMA tablets would be taken to Perth, but he understood that there would be between 5000 and 10,000 tablets.

5 After arriving in Perth and booking into the Sheraton Hotel (where Ponnusamy was also staying), Nardone again contacted the appellant. He had a number of discussions with him. On the afternoon of 13 September 2002 the appellant told Nardone that a couple of people he had "lined up" to buy ecstasy tablets from him had "pulled out" and that he consequently wanted only 2000 tablets. Nardone relayed this to Ponnusamy, identifying the appellant only as his "mate". That evening, Ponnusamy received a call from Mihic. As a result of it, Ponnusamy told Nardone that he should get the money for the MDMA tablets from his "friend". Ponnusamy told him that he was to take $4 per tablet sold out of the money paid by the appellant and give the rest to Ponnusamy. Nardone was to receive, from the money removed, $1 for every MDMA tablet sold and Ponnusamy was to receive $3 for every tablet sold. Nardone went to the appellant's home. The appellant told him he wanted 3000 MDMA tablets. The agreed price was $22 per tablet. The appellant gave Nardone a box with money in it. Nardone took the box and went back to his hotel room. There, he removed $12,000 from it. He went to Ponnusamy's hotel room and gave the rest of the money to him. Ponnusamy left the room and then returned with the box, which now contained 3000 MDMA tablets. While on his way to deliver these drugs to the appellant, Nardone was arrested. The police found the box containing the 3000 tablets. Each was green and imprinted with a fish logo. The tablets were packaged into three heat-sealed bags of about 1000 tablets each.

6 On the evening of Nardone's arrest, the police executed search warrants on several rooms at the Sheraton Hotel. One of these was Nardone's room. In it they found $12,000. Another was the room in which Mihic was staying. There, the police found $54,000 in a safe. There was an additional sum of $1305 in a nearby backpack. They also found about 7000 ecstasy tablets in the safe. These were green, with a fish logo. They were packaged in seven heat-sealed bags, each containing about 1000 tablets. The prosecutor proposes to argue at the trial that the $54,000 was the money that had come from the appellant. A chemical comparison of the MDMA tablets seized, respectively, from Nardone and Mihic revealed that they were consistent with each other and had been produced by the same tablet-making equipment.

7 Count 1 on the indictment relates to the 7000 tablets found in the safe in Mihic's hotel room. Each of counts 2 and 3 relates to the 3000 tablets sold to the appellant.

8 On 7 July 2006 the appellant brought an application under s 133(4) of the Criminal Procedure Act 2004 (WA) ("Act") for an order that the charge against him (count 3) be tried separately from the charges in counts 1 and 2. He contended that count 3 had not lawfully been joined with counts 1 and 2. He also contended in the alternative that, if the three counts were lawfully joined, the prejudice to him arising out of the joinder was so great that a separate trial of count 3 should be ordered in any event. The primary Judge dismissed that application on 21 July 2006.

9 Section 85 of the Act provides that the legal requirements of indictments are provided for by Sch 1. Clause 2(3) of that Schedule reads as follows:

"A prosecution notice or indictment must contain one charge only, unless clause 7 or another written law permits otherwise."

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

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

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

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

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

"(1) If one prosecution notice or indictment contains 2 or more charges the charges must be tried together unless a court orders otherwise under this Act.

(2) If one charge charges 2 or more accused, they must be tried together unless a court orders otherwise under this Act."

12 Section 133 of the Act reads, so far as it is presently relevant, as follows:

"(1) The powers in this section may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.

(2) A court may amend or cancel an order made under this section.

(3) If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -

(a) that the accused be tried separately on one or more of the charges; and

(b) the prosecutor to tell the court the order in which the charges will be tried.

(4) If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -

(a) that one or more of the accused be tried separately from the other or others; and

(b) the prosecutor to tell the court the order in which the accused will be tried.

(5) In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -

(a) to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;

(b) to so decide irrespective of the nature of the offence or offences charged; and

(c) to so decide even if -

(i) the evidence on one of the charges is inadmissible on another; or

(ii) the evidence against one of the accused is not admissible against another,

13 The primary Judge found that all three limbs of cl 7(3) were applicable. He accepted a submission by the prosecutor that all three offences charged arose from a series of acts done in the prosecution of a single purpose shared by all three accused, being the supply of MDMA tablets to the appellant: Mihic v The State of Western Australia [2006] WADC 107 at [28]. Next, he mentioned (at [30]) that each of the accused knew of the existence and "the significance" of the others, although Ponnusamy and Mihic did not know the appellant's name, Nardone and the appellant did not know Mihic's name and the appellant did not know Ponnusamy's name. He went on to say (also at [30]) that there was a nexus between the offences in the indictment and that they formed or were part of a series of offences of the same or similar character. Finally, he considered (at [31]) that the offences charged could be said to arise substantially out of the same or closely related acts or omissions.

14 The primary Judge declined, in the exercise of his discretion under s 133(4), to order a separate trial of the charge against the appellant, count 3 in the indictment. Although he regarded the materials before him as being insufficient to enable him to conclude whether much of the evidence to be adduced by the prosecutor was admissible in respect of all three counts and against all three accused, he considered (at [32]) that "the inevitable prejudice that will arise upon the joinder of the trial of count 3 with counts 1 and 2 should be capable of being dealt with by an appropriate direction to the jury". He went on to say that he agreed with the prosecutor that it was desirable and in the interests of justice that all three men charged be tried together.

15 There are two grounds of appeal. They read as follows:

"Ground 1

The Learned Trial Judge erred in law in finding that Count three was properly joined with Counts one and two.

Ground 2

The Learned Trial Judge erred in law in finding that there was no prejudice that could not be guarded against by appropriate direction and thereby erred in failing to order a separate trial."

16 The effect of s 85 of the Act, read with cl 2(3) and cl 7(3) of Sch 1, is that, absent some legislative authority, an indictment must contain only one charge. In this case the only authority relied upon is that provided by cl 7 of Sch 1. Before deciding whether or not it provides the requisite authority in the circumstances of this case, it is instructive to consider the existing legislation in its historical context.

17 Under the common law at the time of enactment of the Criminal Code (WA) ("Code"), two or more offenders could be joined in one indictment if it was alleged that they had committed an offence jointly (Director of Public Prosecutions v Merriman [1973] AC 584 at 607), but not if they had committed distinct offences (R v Potter [1959] Qd R 378 at 381, per Philp SPJ). When the Code was first enacted, s 585 (which had its origins in the Indictments Act 1915 (UK): see the discussion by Dawson J in De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 at 8 - 9) read as follows:

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

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

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

But, if in any such case it appears to the Court that the accused person is likely to be prejudiced by such joinder, the Court may require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately.

This section does not authorise the joinder of a charge of wilful murder, murder, or manslaughter, with a charge of any other offence."

18 In 1972 the Code was amended by the Criminal Code Amendment Act 1972 (WA). That Act added a new s 586(7) which read as follows:

"Any number of persons charged with committing different or separate offences may be charged in the same indictment and tried together if the offences arise substantially out of the same or closely related facts."

When the Bill for the amending Act was introduced into Parliament, the proposed s 586(7) continued with the words "or if a substantial part of the evidence is relevant to all charges". That phrase was removed by the Legislative Council because it was thought to be unfair for an accused to be tried with another person whose alleged offence consisted of different facts, but involved substantially overlapping evidence: Parliamentary Debates, Legislative Council, 10 May 1972, pp 1430 - 1431. It is consequently plain that the legislature then distinguished between facts and evidence for the purposes of s 586(7).

19 By the time of its repeal in 2004, s 585 had been amended. Subsection (2) of the amended section then read as follows:

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

The third paragraph of the original s 585 had, by then, become s 585(3) and read as follows:

"If charges are joined under subsection (2), the several statements of the offences may be made in the same form as in other cases, without any allegation of connection between the offences."

20 Section 586(7) had not been amended at the time of its repeal. There had, by then, been no unanimity concerning the answer to the question whether the "facts" referred to in that section meant only the facta probanda, or facts which the State was required to prove in order to obtain a conviction, and not all of the admissible evidence tending to prove those facts, as had been held by Gibbs J (with whom Mack and Jeffries JJ agreed) in R v Russell, Szann and Patterson (No 2) [1965] Qd R 334 at 337 in respect of the similar, but not identical, Queensland provision (then s 568(6), and currently s 568(12), of the Criminal Code (Qld)) (see also R v Danes and Taylor [1965] Qd R 338; R v Leslie [1989] 2 Qd R 378; and R v Crawford [1989] 2 Qd R 443; but cf R v Ford [1967] Tas SR 20). By way of illustration, in Rintel v The Queen [1986] WAR 175 at 180 Franklyn J cited Russell with approval (Burt CJ reasoned, at 176, that there were, in that case, no closely related facts because the evidence against each accused had "little if any relevance to the Crown's case" against the other and Wallace J agreed with both Burt CJ and Franklyn J) but in an earlier case, Beck & Smith v R [1984] WAR 127, Smith J said (at 140) that, because s 586(7) was worded differently to its Queensland equivalent (which contained the restricting words "so that a substantial part of the facts is relevant to all the charges"), "facts" in s 586(7) did not refer only to the facta probanda. The Court in Rintel appears not to have been referred to the judgments in Beck.

21 Whatever may be the position in that respect, cl 7(3) of Sch 1 to the Act, which has replaced the now repealed provisions of s 585(2), s 585(3) and s 586(7), substantially adopts the language of s 585(2), although it is, to some degree, a hybrid of the three sections. A comparison between cl 7(3) and s 585(2) reveals that the words "distinct indictable offences" have become simply "offences". The words "or omissions" have been added to par (c) after "acts". The words "and may do so without alleging a connection between the offences" have been added, although, as will be apparent, this phrase originates in the now repealed s 585(3) of the Code. The most significant of the changes, for present purposes, are that the words "constituted by" have been replaced with "arise substantially out of" (the phrase used in the former s 586(7)) in par (b) and with the words "arise from" in par (c); and the words "the same acts or omissions" have become "the same or closely related acts or omissions" in par (b) (the words "or closely related facts" appeared in the former s 586(7)). I will return to this below when considering the second of the three limbs of cl 7(3).

22 The meaning of the words "series of offences of the same or a similar character", which appear in cl 7(3)(a), has been considered in cases in Australia and in the United Kingdom.

23 In R v Kray [1970] 1 QB 125 the Court of Appeal in England considered the effect of r 3 of Sch 1 to the Indictments Act 1915 (UK) which read as follows:

"Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character."

24 The Court (Widgery and Fenton Atkinson LJJ and James J) considered (at 130) that the word "series", in this context, encompassed two or more components (it was followed in this respect in Lancaster v The Queen [1989] WAR 83 at 86). The Court said, of the words "offences ... of a similar character" (at 130 - 131):

" ... [O]ffences 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 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 went on to illustrate this by reference to R v Clayton-Wright [1948] 2 All ER 763. In that case four counts against the accused had been joined, being arson of a vessel, arson of the same vessel with intent to prejudice the insurers, attempting to obtain money by false pretences from those insurers in respect of a policy on the vessel and attempting to obtain money by false pretences from insurers by falsely pretending that a mink coat had been stolen from his motor car. Lord Goddard said at 765 that the charge with regard to the mink coat "was a similar charge of swindling underwriters, and, therefore, one gets what I may call the nexus of insurance, the nexus of fraudulent acts to the prejudice of the underwriters ... ".

25 In Ludlow v Metropolitan Police Commissioner [1971] AC 29, the House of Lords held that a "sufficient nexus" encompassed both the law and the facts relating to the offences (this conclusion was agreed with by Brennan J in Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 540 - 541). The indictment in Ludlow alleged two counts. The first was attempted larceny from a public house. The second was robbery with violence, which also occurred at a public house when the accused refused to pay for a drink. The two offences were committed within 16 days of one another. The House of Lords held that the offences were similar in law, since both contained stealing or attempted stealing as an element. They also had similar factual features, because both took place at public houses within a relatively short period of time. The Court also approved what had been said in Kray to the effect that, while a nexus is certainly established if the offences are so connected that the same evidence would be admissible in respect of each, the rule was not restricted to such cases.

26 In De Jesus at 9, Dawson J accepted that for two or more offences to constitute a series there must be a connection or nexus between them. He went on to say:

"This, I think, is something different from the express requirement in s. 585 that the offences must be of the same or a similar character. Whatever may historically be behind the use of those words (cf. Archbold's Criminal Pleading Evidence & Practice, 42nd ed. at par. 1-77), as a matter of construction the requirement in my view refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance. Thus offences of rape are of the same kind and other offences of a sexual character, such as indecent assault, may be offences of a similar kind to rape.

Similarity may also indicate a nexus, but similarity of that kind relates rather to the facts alleged by the prosecution to constitute the offences rather than to their legal characteristics. The distinction may not be one which can be maintained with total precision, but it is useful because otherwise the expression used in s. 585 - 'a series of offences of the same or a similar character' - is somewhat tautological, since similarity is itself one of the hallmarks of a series. Thus it was that Lord Pearson remarked in Ludlow, at 39 that 'Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series'. Even in that statement there is an element of circumlocution, but it is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a 'series' without straining the word beyond the meaning which it is reasonably capable of bearing."

27 Dawson J accepted that two rapes that occurred in the early hours of the morning after the accused had been to a particular night club formed a series of offences of a similar character. He said that there were dissimilarities and that the question, being one of degree, is one upon which reasonable minds might differ (as is evidenced by the different approach adopted by Brennan J in that case who, at 7, said that, although it had been conceded at the trial that the charges were properly joined, it was "difficult to see what was the connection between the ... offences ... which made them part of a single series of offences"). However, Dawson J said (at 9) that the fact that reasonable minds might differ in this respect is of less significance 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. He said that, because of the discretion, the provision allowing joinder should not be given an unduly restricted meaning: see also Kray at 131; Ludlow at 39 - 40; Barnes v The Queen [2001] WASCA 86 at [12].

28 In R v Cranston [1988] 1 Qd R 159 at 164 Macrossan J said of the words "a series of offences of the same or similar character" that, however imprecise those words might be, they "call for the administration of a test in which time, place and other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present". He went on to express the opinion that the "courts may find that an appropriately liberal exercise to sever is called for in doubtful cases" and that "it will be necessary to be cautious in concluding that multiple counts do truly involve a series of the same or similar character". He suggested that this approach would "at lease ensure that time is not wasted in trying cases involving multiple counts which appeal courts, taking a different view from the trial judge, consider do not satisfy the test and were improperly joined". These comments were applied and endorsed by Lee J in R v Anderson [1994] 2 Qd R 409 at 412 - 413, in respect of the third limb of s 567(2) of the Criminal Code (Qld), which refers to "a series of offences committed in the prosecution of a single purpose".

29 The former s 585 has often been considered in this State. For present purposes, four cases, in particular, provide useful illustrations of its application.

30 The first of these is Beck, in which Ludlow was applied by Brinsden J at 133 and by Smith J at 138 - 139. In that case Beck and Smith had together gone into a bedroom with the complainant. There Beck raped her. After he had done so, Smith raped the complainant while Beck held her down. Beck and Smith then left the house. Beck returned a short while later. He learned that the police had been summoned. He attacked the complainant with the intention of killing her. The two men were charged in the one indictment. Smith was charged with one count of rape. Beck was charged with two counts of rape and one of attempted murder. Brinsden and Smith JJ (Rowland J dissenting) found that the charges were correctly joined. Each of the majority relied upon the fact that the evidence of each offence would be admissible in respect of the other offences. However, they also found that the offences amounted to a series of offences of a similar character because they involved assaults of personal violence on the same complainant in a short space of time (see Brinsden J at 133 and Smith J at 139).

31 The second case is Lancaster. The applicant had been charged with four counts in one indictment, two of armed robbery (the robberies occurred respectively on 17 and 30 October 1985) and two of assault with intent to resist lawful arrest (both occurring on 30 October 1985). Unsurprisingly, counts 1 and 2 were found to have constituted a series of offences of the same or similar character within the meaning of s 585, as was the case with counts 3 and 4. Ludlow was applied by Malcolm CJ at 86, by Smith J at 92 and by Franklyn J at 96. What was said by Dawson J in De Jesus at 9 was applied by Smith J at 93.

32 The third case, Barnes, concerned a series of corrupt dealings between an Assistant Shire Clerk, Barnes, and the contractor for the construction of a council swimming pool, Chamberlain. Counts 1, 2, 5 and 6 of the indictment alleged corrupt payments by Chamberlain to Barnes. Counts 1 and 5 charged Chamberlain with making the corrupt payments and counts 2 and 6 charged Barnes with receiving them. Count 4 alleged that the pair stole over $51,000 from the Boddington Shire Council when Chamberlain made a false claim for variations on the construction contract. Count 3 alleged that Chamberlain and Barnes fraudulently obtained funding from the State Ministry of Sport for the non-existent variations. Counts 3 and 4 were charged jointly against Chamberlain and Barnes. The appellants contended that, because the evidence relating to counts 1 and 2 and counts 5 and 6 was not relevant to counts 3 and 4, the trial of counts 3 and 4 should have been held separately from the trial of the other four counts. Although the offences were not as closely related in law as in De Jesus (where the offences were of the same kind) or in Ludlow (where stealing or attempted stealing was a common element), and although the offences took place over a period of some six months, Parker J (with whom Wallwork and Wheeler JJ agreed) held that the counts were correctly joined under s 585. The Court, relying upon what had been said in Ludlow, held that the joinder was appropriate because the offences constituted a series of a similar character for the purposes of s 585. This, in turn, was because each charge alleged dishonesty and involved conduct by Barnes and Chamberlain, in connection with the swimming pool project, for the purpose of one or other of them benefiting financially by fraud or corrupt means, from or through the Shire ([22] of the judgment of Parker J).

33 The fourth case, Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19, concerned an indictment containing three counts. Count 1 charged the applicant with the sale of about 27 grams of heroin to an undercover police officer. Count 3 charged him with possession of 100 grams of heroin, on the same night, with intent to sell or supply. This last quantity of heroin had been found in the shower recess of his home. Murray J (at [10]), said that these counts were properly joined on either of two bases. The first was that they amounted to "a series of offences of the same or a similar character". The second was that the two offences were alleged to be constituted "by a series of acts done or omitted to be done in the prosecution of a single purpose", being in each case the unlawful trafficking in heroin. He said that a clear inference was available on the evidence to establish that the heroin the subject of count 1 was part of the general stock of heroin the subject of count 3 that had been found in the appellant's home. The other two Judges in that case gave no attention to the joinder of these two counts (the issue of the propriety of the joinder of counts 1 and 3 was not raised in the appeal).

34 Before leaving this discussion of the first limb, I should mention that counsel for the appellant contended that cl 7(3)(a) is intended only to cover cases involving multiple offenders where the offenders are alleged to have acted in concert in the course of committing a "string" of closely connected offences as, for example, systematic stealing from an employer. I am unable to accept that submission. There is nothing in cl 7(3)(a) which should be taken to require that offenders must act in that way before a series can exist. Also, that contention is not supported by the cases to which I have referred.

35 The words "founded on the same facts", where they appear in r 3 of Sch 1 to the Indictments Act 1915 (UK) (quoted earlier in these reasons) and, since 1971, in r 9 of the Indictment Rules 1971 (UK), have been interpreted widely. For example, in R v Barrell and Wilson (1979) 69 Cr App R 250 the English Court of Appeal held that this phrase did not require that the facts founding each charge must be identical in substance or virtually contemporaneous and that it was enough if they had a common factual origin. In that case three men had been charged with affray and assault. One of the three men was also charged, in the same indictment, with attempting to pervert the course of justice. Acting alone some two months after the assault, he was said to have approached a witness and offered him money if he would modify his evidence concerning the assault. This charge was held to have been founded on the same facts, for the purposes of r 9, as the affray and assault charges.

36 In R v Collins; Ex parte Attorney-General [1996] 1 Qd R 631 the same phrase was considered by the Court of Appeal in Queensland in the context of s 567(2) of the Criminal Code (Qld). McPherson JA and Lee J said, at 637, that for offences to be "founded on the same facts" they must have a "common factual origin" (applying Barrell and Wilson) and that that is a phrase which is not to be narrowly construed. They said, also at 637, that all that was necessary was for the offences "to be traceable, either in time, place or circumstance, to common events". In that case the accused had been found in possession of goods stolen from a warehouse that had been broken into and set alight on the previous day. Counts of possession of stolen goods, break and enter and arson were held to have been validly joined.

37 Clause 7(3)(b) of the Schedule seems to me to be wider in its formulation than the UK and Queensland provisions. It is also wider than its predecessor, s 585(2) of the Code. I have mentioned that the words "be constituted by" in the former provisions of s 585(2) have been replaced, in cl 7(3)(b), with the words "arise substantially out of" (used in s 586(7) of the Code) and that the words "the same acts or omissions" have become "the same or closely related acts or omissions" (the words "or closely related" having also been used in s 586(7)).

38 In Russell, the Full Court of the Supreme Court of Queensland, referring to s 568(6) of the Criminal Code (Qld), said (at 337) that the question of whether one set of facts is closely related to another is simply one of degree. There the two sets of facts were found to be closely related because they were related in time, place, the nature of the crime, the identity of the victim and the circumstances in which each offence was allegedly committed. Russell appears to have been approved by the High Court in Mackay v The Queen [1977] HCA 22; (1977) 136 CLR 465 at 469, per Barwick CJ, Gibbs and Mason JJ. In Rintel, Franklyn J pointed out that, while both cases dealt with joint charges of rape, they clearly indicate what is contemplated by the expression "closely related facts".

39 Considered against this background, it seems to me that the expression "arise substantially out of ... the same or closely related acts or omissions" is intended to have a relatively wide reach. So to read the expression is consistent with the cases suggesting that such provisions are not to give an unduly restrictive meaning, especially when regard is had to the broad discretion given to the Court by s 133 of the Act or equivalent provisions: see De Jesus at 9; Kray at 131; Ludlow at 39 - 40 and Barnes at [12]; but cf Cranston at 164 - 165 and Anderson at 412 - 413.

40 What I have said concerning the meaning of the word "series" is of course applicable also to the use of that word in cl 7(3)(c).

41 The word "purpose", where it appears in that clause, has been given a broad meaning in this State.

42 In Beck at 133, Brinsden J (obiter) thought that there was a lot to be said for the proposition that the offences in that case could have been joined upon the basis that they arose out of a series of acts done in the prosecution of a single purpose, "the single purpose being to have sexual intercourse against the consent of the complainant without being called upon to account". He referred to R v Phillips [1967] Qd R 237. In that case, Hanger J said, at 256:

"The charges against Phillips of indecent assault, sodomy and robbery are alleged by the Crown to be in the prosecution of a single purpose - the spoliation of Innes. A purpose may be defined widely or narrowly. Indecent assault, sodomy and robbery may each be regarded as a single purpose. Each act of an individual may be regarded separately and as having an immediate purpose; but if these acts may be regarded as part of wider purpose, I think that is sufficient for the purpose of s 567 [of the Criminal Code (Qld)]. So also with the offences charged against Lawrence; the charge of a threat to injure, which, according to the evidence, had as its purpose the preventing of disclosure of the other offences, may be regarded as incidental to a wider purpose - spoliation with immunity from punishment".

43 I have mentioned that in Lancaster the applicant had been charged in one indictment with four counts, two of armed robbery and two of assault with intent to resist lawful arrest. In that case Malcolm CJ and Smith J (Franklyn J dissenting) found that counts 2, 3 and 4 were properly joined, being part of a series of acts done in the prosecution of a single purpose, namely that of "robbery with immunity from punishment" (at 87 per Malcolm CJ). Once again, reliance was placed upon what had been said by Hanger J in Phillips (by Malcolm CJ at 87, Smith J generally agreeing). In Cookson (1989) 45 A Crim R 121 at 129 Malcolm CJ again referred to the judgment of Hanger J in Phillips with apparent approval and repeated what he had said in that respect in Lancaster. Brinsden J agreed with him.

44 I have said that in Anderson Lee J preferred a narrower construction of the word "purpose" and suggested that a court should be cautious in concluding that multiple counts in an indictment truly involve a series of offences committed in the prosecution of a single purpose.

45 There is no contest as regards the proposition that counts 1 and 2 are properly joined. That concession is rightly made. The joinder of those counts is justified under each of the first two limbs of cl 7(3). They respectively involve possession with intent to sell or supply and sale of the same kind of prohibited drug (as to which see Grakalic at [10] per Murray J; R v Conley (1982) 30 SASR 226 at 230) and the State proposes to establish that the 7000 MDMA tablets the subject of count 1 were from the same stockpile as the 3000 tablets the subject of count 2, that all of the drugs came from the same batch and that the whole stockpile was brought to Perth, at least in part, for the purposes of the sale transaction charged in count 2 and otherwise for the purposes of sale generally. The offences charged consequently form part of a series of offences of a similar character and they are alleged to arise substantially out of closely related acts.

46 In my opinion count 3 is properly joined with counts 1 and 2. While count 3 involves a different offender, it seems to me that there is a series of alleged offences of a similar character. All three offences are drug offences (respectively involving possession with intent to sell, sale and an attempt to possess for the purpose of sale a drug of the same kind). The offences are alleged to have taken place in Perth (and largely to have involved dealings in the same hotel) on the same night. They were directly connected in other ways. The 3000 tablets giving rise to the sale charged in count 2 are the same tablets that the appellant is said to have attempted to possess for the purposes of count 3, by means of the same sale. Ponnusamy and Mihic are said to have come to Perth in order to sell drugs to the appellant (in a quantity greater than that actually purchased by him) even if, as seems to me to be irrelevant for this purpose, they did not know the name of their buyer. Also, I have mentioned that the State's case is that the balance of the sum of $66,000 paid by the appellant for the drugs found its way to Mihic (and was found in his safe), after deduction of the commission of $12,000 (found in Ponnusamy's hotel room). Although counsel for the appellant contended that possession of the money was not a significant connection because it is uncorroborated, the court does not examine the strength of the evidence in deciding whether to order joinder: Sutton at 541. Moreover, as I have said, all three offences had a common factual origin in the sense that they originated in the bringing to Perth, for the purposes of sale, of the single stockpile of 10,000 ecstasy tablets: Grakalic at [10]; Barnes at [22] and Cranston at 164.

47 It also seems to me that counts 1, 2 and 3 fall within the second limb of cl 7. They arise substantially out of closely related acts or omissions. The State alleges that the appellant attempted to possess the drugs sold to him by Mihic and Ponnusamy. Consequently the acts charged in counts 2 and 3 effectively represent the two sides of the same transaction and, as I have said when dealing with counts 1 and 2, that transaction is alleged to have arisen substantially out of acts that were closely related to those the subject of count 1. Also, as I have stressed, the money found in Mihic's safe is alleged to have come from the appellant as payment for the drugs and all three offences originated in the bringing to Perth, for the purposes of sale (at least primarily to the appellant) of the single stockpile of drugs: Barrell and Wilson; Collins at 637.

48 In resisting joinder of any of the counts under the second limb of cl 7(3), the appellant relies upon what was said by the Full Court in Rintel, suggesting that that case (decided under the former provisions of s 586(7) of the Code), is indistinguishable from this. In that case the Court ordered that two offenders, one charged with the sale of drugs and the other with attempted possession, be tried separately. The charge against the appellant was that on 29 February 1984 he had in his possession a quantity of heroin with intent to sell or supply. In the same indictment a second man, Young, was charged that, on the same date, he had attempted to obtain a quantity of heroin with intent to sell or supply. The prosecution case was that the appellant was in possession of heroin in the vicinity of the Hyde Park Hotel with intent to sell or supply it to Young, but was arrested before making contact with Young. The case against Young was that he had been found in his car near the Hyde Park Hotel with a large sum of money which he admitted was to be used for the purchase of heroin from a person who was to meet him there. The Court found that the offences did not arise substantially out of the same or closely related acts and that the two men should not have been charged in the same indictment.

49 The reasoning in that case is in some respects obscure. However, the decision seems to have turned on the Court's approach to the facts of the case, to the extent that the Court considered that they might be proved by admissible evidence. Burt CJ appears to have based his conclusion upon the ground that the evidence relating to each charge was unlikely to be relevant to the other. Franklyn J concluded that there was no evidence, admissible against both accused, to connect the two offences. I have mentioned that Wallace J agreed with both of them.

50 The judgments in Rintel preceded the decision in each of Collins and Grakalic. Moreover, there was in Rintel no analysis of the history, context and (at least in any detail) operation of the then provisions of s 586(7) of the Code. Whatever may have been the correct application of the former provisions to the facts of that case, it seems to me to be plain enough in the present case that, when the current provisions of cl 7(3)(b) are considered in the light of the general trend of the cases to which I have referred (including those which suggest that clauses such as cl 7(a) and cl 7(b) should not be given an unduly restricted meaning), cl 7(3)(b) is applicable for the reasons I have outlined.

51 Given the conclusion at which I have arrived concerning the application of the first two limbs of cl 7(3), it is unnecessary for me to consider whether the primary Judge was correct in finding that the third limb is also applicable.

Must each count be capable of being joined with every other count?

52 Although it is unnecessary for me to do so, I will deal next with a submission advanced on behalf of the respondent to the effect that it is unnecessary for all three counts to fall within one or more of the limbs of cl 7(3) and that it is enough if count 1 is properly joined with count 2 and count 2 is properly joined with count 3. The issue has been considered in three cases decided under the repealed provisions.

53 The first of these is Beck. I have said that the indictment in that case charged three offences, one of rape against Beck, one of rape against each of Beck and Smith as co-offenders and one of attempted murder against Beck. Brinsden J, at 135, said that s 586 and s 587 make provision for joinder of offences that could not otherwise be joined under s 585, that a joint count in respect of an offence, whether pursuant to s 586 of s 587, inevitably meant not only the joinder of two offenders in one indictment but also the joinder of two offences (applying Merriman) and that s 585 therefore had no application to the joinder of Beck and Smith in the count of rape. He went on to say:

"Once they are correctly joined, s 585 has no longer anything to say, except that in relation to Beck further counts may be joined in the same indictment against him provided they come within the provisions of s 585. Though Smith is correctly joined in the rape count, I am unable to see how the joinder becomes unlawful merely because there are additional counts against Beck. R v Phillips and Lawrence [[1967] Qd R 237] seems to be by inference support for this view. In that case there were ten counts joined, in respect of one of them (robbery in company) all five accused were indicted jointly. Additionally, there were nine other counts relating to separate offences in respect of which each was involved in at least one. Section 585 (s 567 Q) could not be relied on to justify the joinder in respect of separate offences against the one person for it was held, at least by Mack CJ at 246 and apparently by Hart J, that it could not be said that the offence was done in the prosecution of a single purpose, but contra Hanger J (as he then was) at 256. However, all the judges held that all of the offences could be joined by reason of s 586(6) (s 568(6) Q). In this particular case reliance is not sought on s 586 for the joinder of the other counts against Beck but on s 585. In my view, R v Phillips and Lawrence inferentially supports the joinder here and directly does so far as the judgment of Hanger J is concerned."

54 Smith J pointed (at 139) to the fact that there had been no challenge to the joinder of Smith in an indictment charging Beck with rape. He went on to say (at 139 - 140):

"In these circumstances there is merit, I think, in the submission of the Crown Prosecutor that, once it is concluded that the joinder of the counts of rape and attempted murder against Beck in the indictment is valid, that is the end of the matter subject to the exercise by the trial judge of his discretion in the event of an application being made for separate trials under s 624 of the Criminal Code. In any event, to my mind, the exception contained in s 586(7) of the Criminal Code that any number of persons may be charged in the same indictment and tried together 'if the offences arise out of the same or closely related facts' covers the situation."

55 A different approach appears to have been adopted by Malcolm CJ in Lancaster. Having found in that case that counts 3 and 4 were properly joined with count 2 and that "counts 1 and 2 (apart from counts 3 and 4)" were properly joined, he went on to say (at 87) that it did "not necessarily follow that all four counts were properly joined". Franklyn J said (at 96) that two questions arose. The first was whether the four offences were alleged to have formed or were part of a series of offences of the same or similar character. The second was whether it was alleged that they were severally constituted by a series of acts done or omitted to be done in the prosecution of a single purpose. He went on to say that, unless one of these questions was answered in the affirmative, any joinder of one or more of the four counts with the others or another of them which did not produce an affirmative answer was unlawful.

56 In the third case, R v Pinkstone [2001] WASC 137, Roberts-Smith J applied Beck (he was seemingly not referred to Lancaster). The indictment in that case contained four counts. Counts 1 and 3 charged the appellant Pinkstone with supplying drugs to a man named Yanko (count 1) and to two brothers named Brazier (count 3). Count 2 charged Yanko with possession of drugs. Count 4 charged the Braziers with attempted possession. Roberts-Smith J held that counts 1 and 3 were properly joined against Pinkstone as they were offences of a similar character. He found that counts 1 and 2 were properly joined because they related to the same transaction, as was the case with counts 3 and 4. Counsel for Yanko argued that counts 2 and 4 were improperly joined. Roberts-Smith J rejected this argument, saying (at [47]):

"The common features of all the counts is that they are properly joined to each other as (a) relevant offences by Pinkstone (counts 1 and 3) or (b) are offences properly joined on the indictment because they are charges of offences by other accused which arise substantially out of the same or closely related facts as those in respect of the counts against Pinkstone. Joinder is authorised if there is such a connection at least between one count and each other count. As is established by Beck, once joinder of different counts against the same accused is authorised in this way, s 585 has done its work and it has nothing further to say about the fact that there is no other connection between the accused or between the offences alleged in the various counts."

57 A contrasting approach to that adopted in Beck and Pinkstone was adopted by the Court of Criminal Appeal in Queensland in R v Barker, Alderman and Hughes [1993] 2 Qd R 673. The reasoning in that case was based upon the proposition that s 567(2) of the Criminal Code (Qld) (largely equivalent to the former provisions of s 585(2) of the Code in this State) did not enlarge the circumstances in which separate offenders could be required to answer different charges in one indictment. Consequently, the separate offenders in that case could only be charged in one indictment and tried together if the conditions prescribed by s 568(6) (now s 568(12)) of the Criminal Code (Qld) were satisfied. I have said that that provision, while otherwise generally equivalent to the former s 586(7) of the Code in this State, contained the additional words "so that a substantial part of the facts is relevant to all the charges" (my italics). However, it seems to me that this difference (recognised in Barker at 678) is not now significant and that, whatever the position may have been under the former provisions of the Code, the words "the offences", where they appear in the second line of cl 7(3) of the current legislation (which, as I have said, now regulates both the joinder of charges and the joinder of accused), refer to all of the offences charged. Accordingly, for the joinder of the three offences charged in this case to be authorised by that clause, one or more of its three limbs must apply to all three offences. Consequently, if I had not concluded that all three offences satisfy that requirement, I would necessarily have concluded that the joinder of count 3 was not authorised by cl 7(3).

58 That brings me to ground 2. Even though cl 7 provides the requisite authority for joinder of the charges, the court has a discretion under s 133 of the Act to order separate trials.

59 For policy reasons, the courts have long adopted a general rule that matters which can be joined without prejudice to the accused ought generally to be joined: R v Bellman [1989] AC 836 at 850; Connelly v Director of Public Prosecutions [1964] AC 1254; R v Bargenquast (1981) 5 A Crim R 126; Collins at 637; R v Harbach (1973) 6 SASR 427; Pinkstone at [57]; Ah Poh Wai v The Queen (1995) 15 WAR 404 at 431; Grakalic at [13]; R v Demirok [1976] VicRp 19; [1976] VR 244. A number of factors justify this prima facie rule. It promotes consistency in decision-making and facilitates a single and final inquiry into matters which arise out of or essentially involve common issues of fact or law: Collins at 637; Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 89; Demirok at 254. It also promotes the due and expedient administration of criminal justice: Collins at 637; Demirok at 254. This encompasses a saving in court time and public expense and greater convenience for witnesses: Demirok at 254; Kray at 131.

60 The cases to which I have earlier referred make it plain that the fact that the joinder will result in evidence that would otherwise be inadmissible against one of the accused being heard by the jury is not, of itself, necessarily a sufficient reason for ordering separate trials (see also R v Sims [1946] KB 531 at 536). That is now made plain by s 133(5) of the Act which, as will be apparent, provides that, in deciding whether to make an order under s 133(4) or s 133(5), it is open to a superior court to decide that any likelihood of prejudice can be guarded against by a direction to the jury even if the evidence on one of the charges is inadmissible on another or the evidence against one of the accused is not admissible against another. However, the existence of either circumstance inevitably raises a question whether separate trials should be ordered: Conley at 231 per King CJ.

"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 upon the jury's mind in deciding 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."

This extract was applied by the Court in Barnes at [14]. In that case Parker J went on to observe (as had Brennan J in Sutton at 541) that the facts to be taken into account by the trial Judge in determining whether charges are properly joined in an indictment are the facts alleged by the prosecution and that it is immaterial that they are disputed by the defence ([15] of the judgment).

62 Brennan J's comments in Sutton were approved in De Jesus by Gibbs CJ at 3, by Mason and Deane JJ at 5 and by Dawson J at 8. In that case Brennan J said (at 7):

"Once it was conceded that the two sets of offences were part of a single series, it was for the judge in the exercise of his discretion to grant or refuse the application for separate trials. I have already stated my view in Sutton as to the way in which the exercise of that discretion should be approached (see 541 - 543) and it is unnecessary to repeat it. Suffice to say that when the admission of the evidence admissible on the charges joined in an indictment carries the risk of impermissible prejudice to the accused if the charges are tried together, separate trials should be ordered. There is no requirement that some further 'special feature of the case' appear before separate trials are ordered."

Each of Gibbs CJ, Brennan J and Dawson J (who comprised the majority in De Jesus) considered that sexual cases were particularly likely to arouse prejudice against which a direction to the jury was unlikely to guard (see at 3, 7 and 10 respectively).

63 In Pinkstone at [67] - [68] Roberts-Smith J referred to, and relied upon, what had been said by Hunt J in R v Middis, unreported; SCt of NSW; 27 March 1991. In that case Hunt J said that the applicant for a separate trial must show that positive injustice would be caused by a joint trial. He also said that where:

(a) the evidence against an applicant was significantly weaker than and different to evidence admissible against another of the accused to be jointly tried with him;

(b) the evidence against those other accused contains material that is highly prejudicial to the applicant although inadmissible against him; and

(c) there is a real risk that the weaker prosecution case against the applicant will be made immeasurably stronger by reason of the prejudicial material

a separate trial will usually be ordered in relation to the charges against the applicant. Hunt J's observation that an applicant for a separate trial must demonstrate that there is a real risk (as opposed to a remote possibility) that a joint trial will give rise to prejudice of the type which will result in positive injustice to him was endorsed by Roberts-Smith J at [68].

64 As Roberts-Smith J pointed out in Pinkstone at [70], the principles articulated by Hunt J in Middis have repeatedly been accepted by the Court of Criminal Appeal in New South Wales. One of the cases in which Middis has been approved is Patsalis [1999] NSWSC 649; (1999) 107 A Crim R 432. In that case Kirby J emphasised that what was said by Hunt J in Middis did not state exhaustively the circumstances in which a court should order a separate trial and that the touchstone must necessarily remain the general one of whether there is a risk of positive injustice to the accused if he or she was to stand trial jointly with a co-accused.

65 There is now a good deal of authority to support the proposition that, at least in the ordinary case, a properly instructed jury is capable of distinguishing between evidence that is admissible, and therefore usable, against one offender but not admissible, and therefore unable to be taken into account, in respect of another: see, for example, Ludlow at 40 - 41; Beck at 135; Leaman (1987) 28 A Crim R 104 at 108; R v Connell (No 1) (1992) 8 WAR 518 at 530 - 531. However, there will undoubtedly be cases in which the prejudice is so great that it cannot confidently be concluded that it will be overcome: Rintel at 179, 182; Harbach at 435; Leaman at 112 - 113.

66 Finally, as regards this discussion of some of the considerations that are relevant to the exercise of a discretion of the kind afforded by s 133, it should be kept in mind, as Hunt J pointed out in Middis, that a decision made prior to a trial to refuse an application for separate trials may be reviewed during the course of the trial itself: see, in this State, s 133(1) and s 133(2) of the Act. Hunt J said that additional circumstances may then become apparent and that what might have been thought to be only a remote possibility may become real. In that event the judge is always able to discharge the jury in relation to the accused who is prejudiced and to proceed against the other accused or, for that matter, to discharge the jury generally and to start again with wholly separate trials. Hunt J also observed that it should be kept in mind that, in a joint trial, in addition to the specific directions to a jury as regards the admissibility of evidence and the use to which it might be put, the jury will be directed separately in the summing up in relation to the evidence admissible against each accused.

67 In this case, there is a clear distinction between the evidence that is admissible against the appellant and that which is admissible against his co-offenders.

68 In order to prove the case against the appellant, the prosecutor will no doubt lead evidence from Nardone concerning the sale the subject of counts 2 and 3. Counsel for the appellant contended in this respect that the sale charged in count 2 was to Nardone and not to the appellant and, hence, was irrelevant to the charge against the appellant. I am unable to accept that that is so. This submission relied upon language used by Nardone in his statement to the police in which he repeatedly says words to the effect that the appellant was his buyer or the person to whom he was to sell the drugs. However, the proper characterisation of Nardone's role is one of law and, whatever words Nardone may have used to describe it, the State's contention that Nardone was acting as agent for Ponnusamy and Mihic, as unidentified principals, is amply supported by the evidence proposed to be led.

69 There was also debate during the hearing of the appeal concerning the question whether evidence of the discussions that took place between Nardone and the appellant in the Gold Coast during 2000 or 2001 will be admissible against the appellant. However, the answer to that question seems to me to be irrelevant to the question whether the joint trial of count 3 is appropriate. On any view, that evidence, if admissible at all (prima facie, at least, there seems to be no reason why Nardone need say anything more in this respect than that, in about September 2002 and prior to coming to Perth, he ascertained from the appellant that the appellant wished to buy a quantity of ecstasy tablets), would be admissible in respect of count 3. There can be no suggestion that evidence of that kind, if admissible, is admissible only against one or both of Ponnusamy and Mihic, but not against the appellant. All that could be admissible against Ponnusamy and Mihic in this respect is that Nardone told them that he had a buyer in Perth for at least 5000 ecstasy tablets. His reasons for believing that are irrelevant to the charges against them.

70 However, it is common cause that there will be other evidence, admissible against Ponnusamy and Mihic, that will not be admissible against the appellant. Surveillance evidence concerning the drug activities of Ponnusamy and Mihic and evidence to be given by Nardone concerning his discussions with Ponnusamy as regards the transportation of drugs to Perth may be relevant and admissible for the purpose of establishing that Ponnusamy was connected with the 7000 tablets found in Mihic's hotel room and also for that of establishing the intention which Ponnusamy and Mihic are alleged to have had in bringing 10,000 ecstasy tablets to Perth. That evidence would be irrelevant, or at least largely irrelevant, to the charge against the appellant. Consequently, the answer to the question whether the primary Judge erred in the exercise of his discretion depends upon whether it was open to him to conclude that the prejudice likely to arise from the admission of that evidence was such that it could be guarded against by a direction to the jury. Although the primary Judge made no specific analysis of the likely admissibility of the evidence to be led (saying, in effect, that it was premature for that to be done), I have said that he accepted at [32] that the joinder would give rise to "inevitable prejudice" but found that this was capable of being guarded against by an appropriate direction to the jury.

71 Counsel for the appellant contends that the primary Judge was wrong in that conclusion and that the admission of this evidence at the trial of count 3 will give rise to irreversible prejudice against the appellant. He suggests that that is so primarily because Nardone's credibility is critical to the case against the appellant and because a corroboration warning is likely to be considered to be necessary by the trial Judge. He contends that this will require the separate identification of evidence which might be corroborative of Nardone's evidence against the appellant, on the one

hand, and of his evidence against Ponnusamy and Mihic, on the other, in circumstances in which the latter evidence, or much of it, will very probably be inadmissible against the appellant. He says that a direction of this kind would be difficult to give and that it would be most unlikely that a jury would adhere to it when considering the case against the appellant.

72 I am not persuaded that this contention has been made out. It seems to me that it was open to the primary Judge, on the facts revealed to him, to arrive at the conclusion reached by him in the exercise of his discretion. The charge against the appellant is not complicated and it should be reasonably obvious what evidence is admissible in support of it and also what parts of that evidence are corroborative of Nardone's evidence against the appellant. There is presently no reason to think that it would be difficult for a trial judge to identify that evidence and for a jury to keep in mind its limits when considering the charge against the appellant. There is also no reason, in the circumstances of this case, to doubt that the jury would be true to its oath in that regard: see, in this respect, Ludlow at 40 - 41; Beck at 135; Leaman at 108 and Connell at 530 - 531. As to the assessment of Nardone's credibility generally, it seems to me that a jury would be aided, rather than hampered, by hearing the whole of his evidence.

73 In my opinion this is consequently not a case in which, as matters stand, there is a real risk that the admission of extraneous evidence will lead to incurable prejudice. The decision arrived at by the primary Judge was accordingly open to him. Should the situation alter when the evidence emerges at the trial, it will be open to the trial Judge then to re-evaluate the position and, if necessary, to discharge the jury in relation to the appellant.

75 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with them, with one reservation. That reservation is that, because it is unnecessary to do so, I do not decide the issue dealt with by his Honour under the heading "Must each count be capable of being joined with every other count?" at [52] - [57].

76 PULLIN JA: I agree with the President's reasons and the orders he proposes.