De Jesus v The Queen

(2) that on 30 April 1985 at Fremantle he committed rape upon the said Paula Cordisco,

(3) that on 31 May 1985 at Hamilton Hill, he unlawfully deprived one Maree Fumo of her personal liberty by carrying her away in a motor vehicle against her will,

(4) that on 31 May 1985 at Hamilton Hill, he unlawfully and indecently assaulted the said Maree Fumo and

(5) that on 31 May 1985 he committed rape upon the said Maree Fumo.

The charges of unlawful detention, unlawful deprivation of liberty and unlawful and indecent assault arose out of the circumstances in which the alleged rapes were respectively committed and do not require separate discussion. For the sake of simplicity, I shall discuss the matter as though two charges were joined in the indictment, one of raping Paula Cordisco at Fremantle on 30 April 1985 and the other of raping Maree Fumo at Hamilton Hill on 31 May 1985.

Section 585 of the Criminal Code WA provides that, except as thereinafter stated, an indictment must charge one offence only, and not two or more offences, but contains a proviso to the effect (inter alia) that

when several distinct indictable offences form or are a part of a series of offences of the same or a similar character charges of such distinct offences may be joined in the same indictment against the same person. The section goes on to provide that if it appears to the court that the accused person is likely to be prejudiced by the joinder, the court may require the prosecution 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. The words "form or are a part of a series of offences of the same or a similar character" appeared in r 3 of the rules in the First Schedule to the Indictments Act 1915 UK. That statute has provided a model for the provisions in force in some of the Australian States, but it has not been slavishly followed: for example, s 4 of the Indictments Act gave a general authorisation for the joinder of charges, whereas s 585 of the Criminal Code forbids joinder subject to exceptions.

At the trial, counsel for the applicant expressly conceded that the charges were correctly joined, but asked the learned trial judge to exercise his discretion and grant separate trials. The learned trial judge inquired from counsel whether there was any authority in conflict with Ludlow v Metropolitan Police Commissioner [1971] AC 29, in which Lord Pearson (at 39) gave implicit approval to the following statement in Kray [1970] 1 QB 125 at 130-131:

offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected 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. Lord Pearson (at 41-42) went on to consider the discretion given by s 5(3) of the Indictments Act 1915 to order separate trials, and said (at 41) that the judge has no duty to order separate trials under that section unless in his opinion there is some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice. He said that the principle is clearly stated in Sims [1946] KB 531 at 536, as follows: We do not think that the mere fact that evidence is admissible on one count and inadmissible on another is by itself a ground for separate trials: because often the matter can be made clear in the summing up without prejudice to the accused. In such a case as the present, however, it is asking too much to expect any jury when considering one charge to disregard the evidence on the others, and if such evidence is inadmissible, the prejudice created by it would be improper and would be too great for any direction to overcome. Sims was a case in which the accused was charged in one indictment with several charges of sodomy and gross indecency; it was held that on the trial of one of the counts the evidence would be admissible, and that the joinder was therefore properly made.

Unfortunately in the present case, neither counsel referred the learned judge to the more recent judgments of the House of Lords in Boardman [1975] AC 421 or to the decision of this Court in Sutton (1984) 152 CLR 528; 11 A Crim R 331. In Boardman the accused was charged with homosexual offences involving a number of boys and the trial judge had ruled and directed the jury that the evidence given on a count concerning one boy was admissible as corroborative evidence in relation to the count concerning another boy. The House of Lords held that the judge was entitled to direct the jury as he had done because the evidence was admissible. The case contains an important discussion of the law relating to the admissibility of evidence of similar facts, but we are not concerned with that aspect of the matter. It was accepted by a majority of their Lordships that if the evidence in relation to one count was not admissible on another count there should have been no joinder of the counts. Lord Hailsham of St Marylebone expressed this view succinctly (at 447) where, dealing with counsel's argument, he said:

Strictly speaking, it was submitted that each boy's evidence was inadmissible in considering the other charge. This is somewhat surprising, since, of course, in that event there should have been separate trials . Lord Cross of Chelsea (at 459) dealt with the matter rather more fully. He said: When in a case of this sort the prosecution wishes to adduce "similar fact" evidence which the defence says is inadmissible, the question whether it is admissible ought, if possible, to be decided in the absence of the jury at the outset of the trial and if it is decided that the evidence is inadmissible and the accused is being charged in the same indictment with offences against the other men the charges relating to the different persons ought to be tried separately. If they are tried together the judge will, of course, have to tell the jury that in considering whether the accused is guilty of the offence alleged against him by A they must put out of mind the fact - which they know - that B and C are making similar allegations against him. But, as the Court of Criminal Appeal said in Sims [1946] KB 531 at 536, it is asking too much of any jury to tell them to perform mental gymnastics of this sort. If the charges are tried together it is inevitable that the jurors will be influenced, consciously or unconsciously, by the fact that the accused is being charged not with a single offence against one person but with three separate offences against three persons. It is said, I know, that to order separate trials in all these cases would be highly inconvenient. If and so far as this is true it is a reason for doubting the wisdom of the general rule excluding similar fact evidence. But so long as there is that general rule the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence by trying all the charges together. Lord Wilberforce expressed a similar view, at 442. Although, as I have said, the case concerned homosexual offences, the reasoning of Lord Cross of Chelsea is equally applicable to heterosexual offences since in those cases the risk of prejudice will be equally great. In Sutton (a case arising under the law of South Australia) this Court applied the same principle to cases of rape. In that case I said (at 531; 333): Before us it was accepted by counsel for the prosecution that where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. That was the view taken by the majority of the House of Lords in Boardman and it is a view consonant with justice . Brennan J (at 541-542; 340-341) said: 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 is a general statement, not limited to sexual cases, and so viewed I respectfully agree with it. Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard. For that reason, I adhere to the view which I expressed in Sutton.

On the authorities cited to him, the learned trial judge not unnaturally held that the joinder was authorised by s 585; he agreed that he had a discretion in the exercise of which he might order separate trials but held that there was no special feature of the case that would lead him to exercise his discretion in that way.

The applicant appealed to the Court of Appeal but again neither counsel referred to Boardman or Sutton. The Court of Appeal found no reason to interfere with the exercise of the judge's discretion and dismissed the appeal.

There were some points of similarity between the two cases of rape - in particular, both young women were at "Visions", a night club in Fremantle, before they were allegedly approached by the applicant and in both cases the assailant allegedly put his hand round the victim's neck and started to choke or strangle her, although in the one case this was done after the rape and the other before it; in each case the applicant told the police a story, allegedly false, in an attempt to exculpate himself. There were, however, points of marked dissimilarity. In particular, Paula Cordisco was allegedly approached by the applicant outside the nightclub and led away against her will to a toilet block where she was detained and ultimately raped; on the other hand, Maree Fumo accepted an offer by the applicant to drive her home but was instead driven to a park and there raped. The applicant completely denied having been involved in the incidents described by Paula Cordisco; he admitted having had intercourse with Maree Fumo but stated that it was with her consent. It is unnecessary to go further into the details of the evidence because at no stage of the proceedings has it been contended by the Crown that the evidence of one rape was admissible on the charge of the other. The Crown relies on the fact that the learned trial judge directed the jury that the two cases should be considered separately and that no inference could be drawn from the evidence of one in relation to the other.

Since the evidence on one count was inadmissible on the other, Sutton required it to be held that the two rapes should not have been joined in the one indictment. There can be no doubt that the joinder was highly prejudicial to the applicant - indeed, it seems to me that in this case, where the applicant was raising an issue of identity in one case and an issue of consent in the other, the jury would inevitably have been influenced by the fact that the offences were tried together to find against the applicant on both issues.

It has been settled, at least since Stirland v DPP [1944] AC 315 at 327-328, that it is not necessarily fatal to an appeal that counsel for the accused at the trial failed to raise the necessary objection. Of course, if it were thought that counsel had deliberately refrained at the trial from submitting that the joinder was impermissible, in order to gain some tactical advantage, the case would be different, but it is apparent that in the present case counsel for the applicant simply proceeded on a misunderstanding, shared by counsel for the Crown, as to the correct principle to be applied.

Regrettable though it is, I am forced to the conclusion that the convictions cannot be allowed to stand. The joinder of the charges was wrongly made and was calculated to have a seriously prejudicial effect on the prospects of the applicant securing an acquittal on any charge.

I would extend the time for making the application for special leave to appeal, would grant special leave to appeal and would order new trials.

This application for an extension of time and for special leave to appeal arises out of the applicant's conviction for two offences of rape, two offences of deprivation of liberty and one offence of indecent assault. The five offences were charged in the one indictment, notwithstanding that they arose out of two separate incidents on different dates involving different women. At the beginning of the trial the trial judge refused an application by counsel for the applicant for an order directing separate trials of the offences arising out of each incident. The applicant now seeks special leave to appeal on the ground that the trial judge's discretion to order separate trials miscarried and that in the circumstances of the case this gave rise to a miscarriage of justice.

The relevant circumstances may be shortly stated. According to the Crown case, the first incident took place on 30 April 1985 when the applicant, having met a young woman at the Visions night club in Fremantle, took her against her will to a nearby toilet where he attacked and raped her. He was charged with unlawfully detaining the young woman in the toilet against her will and raping her. The second incident took place on 31 May 1985 when the applicant, having met another young woman at the same night club, offered to drive her home but instead took her to Hamilton Hill where he unlawfully and indecently assaulted her and raped her in the car. He was charged with these two offences and with the offence of unlawfully depriving her of personal liberty by carrying her away in a motor vehicle against her will.

The applicant's defence in relation to the two charges arising out of the first incident was that he was not the person responsible and that he had no involvement in it. His defence in relation to the three charges arising from the second incident was that the young woman agreed to travel in his car and consented to having sexual intercourse with him, there being no unlawful or indecent assault upon her.

The Crown case in relation to all five offences was extremely strong. It was not in issue that the complainant in the first incident was attacked and raped in the toilet. She was picked up by a taxi-driver in the vicinity of the toilet in a distressed condition when she complained that she had been attacked and raped. She had given evidence that during the incident, the applicant had taken her stockings off and that the contents of her handbag had spilled out on the floor when she dropped it. The stockings and loose money were later found on the floor of the toilet. The complainant had known the applicant for some five or six months before the incident and encountered him at the night club in the early hours of the morning of 30 April 1985 when, according to the evidence, they exhibited a mutual antagonism towards each other. The applicant attempted to set up an alibi, asserting that he had arrived at the flat of a female friend at a time which would have excluded his involvement in the incident. However, the friend gave evidence for the Crown of his time of arrival and this did not exclude his participation in the incident. There was also evidence that the applicant had been seen at "Shish Kebabs", an eating house, and had made a telephone call from there, after the time the applicant claimed to have arrived at the flat. Indeed, the evidence called in relation to the applicant's sudden decision to sleep at the flat was likely to create the impression that the purpose of the arrangement was to set up an alibi.

The Crown case on the charges arising from the second incident was just as strong. The applicant, when questioned by the police, initially denied that he was involved with the complainant at all on the morning in question, asserting that his friend Regan had been driving his car at the time, a claim which Regan denied in evidence. However, the applicant altered his account in the meantime. His case at the trial was that he drove the complainant to Hamilton Hill where intercourse took place with her consent. She gave evidence that she was menstruating and wearing a sanitary napkin at the time. He denied this. A sanitary napkin with blood on it was found in the car.

The power to order separate trials is governed by s 585 of the Criminal Code WA. The section provides that an indictment must charge one offence only and not two or more offences. However, there is a proviso in these terms:

Provided that 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 .

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.

In providing that charges of distinct indictable offences may be joined in the same indictment against the same person when they "form or are a part of a series of offences of the same or a similar character", the proviso is substantially similar to statutory provisions in force elsewhere in Australia and England. One such provision is s 278 of the Criminal Law Consolidation Act 1935 SA which was considered by this Court in Sutton (1984) 152 CLR 528; 11 A Crim R 331. There Gibbs CJ stated that where an accused is charged with a number of sexual offences with different females on different occasions, the charges should not be tried together if the evidence on one count is not admissible on another count: at 531; 333. Brennan J expressed the point in this way (at 542; 341):

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. Later his Honour said: Where the evidence admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the sound exercise of the discretion generally (if not universally) requires a direction for separate trials. The views expressed by Gibbs CJ and Brennan J were obiter because it was accepted by counsel for the prosecution in that case that where an accused is charged with a number of sexual offences the charges should not be tried together if the evidence on one count is not admissible on another count (at 531; 333).

At the commencement of the trial on 16 October 1985, Mr Mazza, counsel for the accused, though conceding that the offences were properly joined in the one indictment, asked the trial judge (Pidgeon J) to make an order for separate trials on the ground that there was no common thread between the two incidents. The concession that the offences were properly joined in the one indictment was correctly made. Sutton says nothing to the contrary. Counsel went on to submit that evidence of one incident would not be admissible in the trial of the offences in relation to the other incident and that, accordingly, there was a risk of probable prejudice to the accused.

The trial judge drew attention to the decision of the House of Lords in Ludlow v Metropolitan Police Commissioner [1971] AC 29, where Lord Pearson, with whose speech the other members of the House concurred, concluded (at 38) that two offences could constitute "a series" within the meaning of r 3 of sch 1 to the Indictments Act 1915 UK and (at 38-39) that offences were "of a similar character" if there were "both a legal and a factual similarity between the two offences". To use his Lordship's words, there needed to be "a sufficient nexus" between the two offences. His Lordship went on to say, at 41:

the manifest intention of the Act is that charges which either are founded on the same facts or relate to a series of offences of the same or a similar character properly can and normally should be joined in one indictment, and a joint trial of the charges will normally follow, although the judge has a discretionary power to direct separate trials under s 5(3). If the theory were still correct, it would be the duty of the judge in the proper exercise of his discretion under s 5(3) to direct separate trials in every case where the accused was charged with a series of offences of the same or a similar character, and the manifest intention appearing from s 4 and r 3 would be defeated. The judge has no duty to direct separate trials under s 5(3) unless in his opinion there is some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice. This passage was cited by the Court of Criminal Appeal (WA) in Seiler [1978] WAR 27 at 32, and applied to s 585 of the Criminal Code.

Although the trial judge specifically asked whether there was any High Court authority on the question, he was not referred to Sutton. In the course of argument he indicated that in view of the acceptance in Seiler of the principle expounded in Ludlow, it was his duty to apply that principle. Taking the last sentence from the passage which we have quoted from Lord Pearson's speech, he considered that the issue was whether there was some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused. By way of response counsel acknowledged that it was a matter of how the trial judge's judicial discretion should be exercised. His basic submission was that a joint trial would let in evidence of the commission of both offences to the prejudice of the accused, this being a relevant special feature within the Ludlow formulation, whereas if the offences were the subject of separate trials, evidence of one incident could not be admissible in the trial of offences relating to the other incident under the similar facts rule. He submitted that, none the less, there were some similarities between the incidents which would tend to mislead and prejudice the jury into thinking that one man was responsible for both incidents and that the evidence of each complainant drew support from that of the other.

The trial judge held that there was no special feature requiring separate trials and refused to make the order sought. The Court of Criminal Appeal, whose attention was also not drawn to Sutton, upheld the trial judge's decision not to order separate trials as an exercise of discretion. Smith J considered that the mere fact that evidence is admissible on one charge but not others does not impose a duty on the trial judge to order separate trials, unless any prejudice created thereby cannot be overcome by a direction to the jury. Kennedy J considered that any risk of prejudice to the applicant arising from the joint trial of the offences was substantially reduced, if not obviated, by the direction given by the trial judge to the jury in the course of his summing up. He instructed them that each charge was to be considered separately and in the light of the evidence relating to it, without any adverse inference being drawn from the fact that other offences were charged against the applicant. Kennedy J also thought it significant that the applicant's counsel did not rely on the fact that, in relation to the first complainant, the applicant denied any involvement at all and, in relation to the second complainant, denied the absence of consent. The first complainant could not have been mistaken as to the applicant's identity because she had known him for five or six months before the incident. Rowland J, though regarding the case as a borderline case, was unable to find any fault with the trial judge's exercise of discretion. Like the other members of the Court of Criminal Appeal, he could discern no miscarriage of justice.

As we followed the argument, the applicant's case that the trial judge erred in refusing to order separate trials and that this refusal resulted in a miscarriage of justice was founded upon three principal considerations:

(1) that the trial judge in conformity with the views expressed in Sutton, should, in the exercise of his discretion, have ordered separate trials once it appeared that evidence in the trial of the offences relating to one incident would not have been admissible in the trial of offences relating to the other incident;

(2) that the reception of evidence concerning both incidents at the trial necessarily resulted in prejudice to the accused amounting to a miscarriage of justice, despite the trial judge's direction to the jury to consider each offence in the light of the evidence applicable to it; and

(3) that the joint trial of the issues of no involvement in one incident and denial of absence of consent in the other was unfair to the applicant.

We are willing to assume both the correctness of the proposition stated by Brennan J in the last passage which we have quoted from Sutton and that a refusal by a trial judge to accede to an application to apply that proposition in deciding an important point of procedure in a criminal trial, resulting in a substantial miscarriage of justice, would warrant the grant of special leave to appeal. However, even on those assumptions, we do not consider that the circumstances of this case justify the grant of special leave. In particular, we do not think that the trial judge's refusal to order separate trials, viewed in the wider framework of the applicant's trial, gives rise to any miscarriage of justice.

At the trial, it was common ground that the only issue was how the trial judge's discretion should be exercised and in the Court of Criminal Appeal whether it had been erroneously exercised. It was not submitted, in accordance with the views expressed by Gibbs CJ and Brennan J in Sutton, that the trial judge was bound to order separate trials because evidence admissible on one set of counts was inadmissible on the other. At first instance the debate centred on the existence or non-existence of a "special feature", to use the words of Lord Pearson in Ludlow, a notion which, on the applicant's argument in this Court, has no place in the regime for which s 585 provides. In this situation we agree with the Court of Criminal Appeal that it has not been shown that the trial judge erroneously exercised his discretion if one has regard only to what was put to him in argument. And it is certainly not a case in which we should grant special leave to appeal so that the court may authoritatively determine the correctness or otherwise of a general proposition which was not put to him in argument and has never been advanced on behalf of the applicant, namely, that, in accordance with the concession made and some of the views expressed in Sutton, a trial judge is always or generally bound to order separate trials of alleged sexual offences committed against different persons on different occasions if it appears that the evidence on one charge or set of charges is inadmissible on the other. As has been seen, the basis on which the application for separate trials was made to the trial judge and the manner in which the applicant's case was presented in the Court of Criminal Appeal in the present case were inconsistent with any such general proposition. Nor was any such general proposition advanced on the applicant's behalf in this Court where counsel who now appears for him, understandably did not seek to depart from the manner in which the case was presented in the courts below. In these circumstances, and in the absence of full argument and of the benefit of the views of the Court of Criminal Appeal, it would be difficult to imagine a more inappropriate case for determining the correctness of that general proposition.

It is true that the fact that a point has not been raised on behalf of an accused at his trial or, after conviction, on appeal, does not necessarily preclude it from constituting the basis of a finding by an appellate court that there has been a miscarriage of justice. In the present case, however, there are other factors which weigh heavily in favour of an opposite finding. Ordinarily, there would be considerable force in the applicant's argument that the consideration that the applicant's defence to one set of charges was mistaken identity while his defence to the other set of charges was consent, was a matter to which the trial judge should have paid particular regard in determining whether he should exercise his discretion to direct separate trials. In fact, the reason why the learned trial judge did not pay particular regard to that consideration was that the applicant's counsel refrained from informing him of the intention to rely on the contrasting defences to the different sets of charges. It is scarcely conceivable that that was something which would have escaped counsel's attention and it was not suggested that it did. If the failure to inform the trial judge of the contrasting defences at the time when the application for separate trials was made was deliberate for forensic or appellate purposes, as in the absence of any explanation it would seem to have been, the applicant can hardly complain of the consequences of that failure. Indeed, it is difficult to see how a party can even argue that a trial judge's exercise of discretion miscarried, let alone that there was a substantial miscarriage of justice, by reason of a failure to give weight or sufficient weight to a factual matter of which the trial judge was deliberately kept in ignorance by that party. Moreover, this Court always pays close attention to the manner in which a party deliberately conducts his case at the trial and takes some care to ensure that it does not, by acceding to arguments not put at the trial, encourage the approach that a failure to raise matters at the trial is likely to be rewarded, in the event of conviction, with the opportunity to conduct the case in a different way on a second trial with consequent damage to the administration of criminal justice. This is particularly so where, as here, the primary witnesses are two complainants of rape, each of whom would be required again to give evidence of her harrowing ordeal, one of whom would again be subjected to lengthy and hostile cross-examination aimed at showing that she consented to sexual intercourse.

We have already mentioned the strength of the Crown case on each of the charges. The case on each charge was so strong that even if there had been separate trials, it is not easy to conceive that a rational jury, properly instructed, would have acquitted the applicant. No reason emerges for thinking that the first complainant could have been mistaken as to the identity of her assailant. And, in the situation which we have outlined, no reason emerges for thinking that the second complainant consented to sexual intercourse, more especially when the applicant's initial claim was that he was not involved, a claim which he abandoned when Regan declined to support it.

In these circumstances, it is unrealistic to speak of there having been a miscarriage of justice. To the extent to which the jury might otherwise have been influenced by superficial similarities in the two incidents which lacked probative value the direction of the trial judge instructed them to consider each charge separately and in the light of the evidence relating to it and not to draw any inference from the coexistence of the two sets of charges. And, as we have already indicated, to the extent to which the trial judge's failure to order separate trials created a difficulty in maintaining a defence of denial of identity on one set of charges and a denial of consent on the other, that failure in the absence of any explanation at all, appears to have been brought about by a deliberate decision made for forensic reasons.

For these reasons we would refuse the application for special leave to appeal and, in the event that the court grants the application, dismiss the appeal.

The applicant was charged on indictment before the Supreme Court (WA) on five charges of sexual offences against two women. The first set of offences allegedly occurred on 30 April 1985 and the second set on 31 May 1985. The Crown joined the charges of these five offences in the one indictment in purported reliance upon s 585 of the Criminal Code WA, the relevant provisions of which are set out in the judgment of the Chief Justice. Counsel for the applicant at the trial conceded that the charges were properly joined though it is difficult to see what was the connection between the first set of offences and the second which made them part of a single series of offences. Counsel applied for an order that the two sets of offences be tried separately. That application necessarily proceeded on the footing that the offences were part of a single series. Prior to ruling on the application, the learned trial judge looked at the evidence to be called on the trial of the two sets of offences. Either then or when the evidence was actually called, it was clear that the evidence admissible on the trial of one set of offences was not admissible on the trial of the other set of offences. In those circumstances, some observations made by the Chief Justice and by me in Sutton (1984) 152 CLR 528; 11 A Crim R 331 were relevant to the exercise of the judge's discretion. Unfortunately, the trial judge's attention was not drawn to that case. The application for separate trials was refused. The applicant was convicted on all counts. He appealed to the Court of Criminal Appeal on the ground that separate trials should have been ordered. Again their Honours' attention was not drawn to the observations in Sutton. The appeal was dismissed.

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 at 541-543; 340-342) 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. I agree with the Chief Justice that sexual cases are likely to arouse prejudice and that a direction to the jury is unlikely to give sufficient protection to an accused. Though I would not place sexual cases in a special category for the purpose of applying the general statement I made in Sutton, it would be an extremely rare case in which the difference in the view expressed by the Chief Justice and my view would result in a different exercise of discretion.

This was a clear case where separate trials were essential to avoid impermissible prejudice but the inability to find a further special feature of the case led to a miscarriage of the discretion. In consequence, evidence of an impermissibly prejudicial kind was admitted on the trial of each set of offences. The error is so manifest, the miscarriage of justice by the wrongful admission of evidence so substantial and the giving of effect to the relevant observations in Sutton so important that special leave to appeal should be granted. The appeal must be allowed and, regrettably, there must be new trials on each set of offences.

The applicant was convicted upon two counts of rape which were joined in the one indictment, together with counts charging him with associated offences. The circumstances in which the rapes were alleged to have been committed have already been referred to and it is enough for me to say that they were quite distinct offences separated in time by a month, although in each case the applicant met the victim at "Visions", a night club in Fremantle. Clearly, the evidence which was admissible upon one count was not admissible upon the other. In the one case the applicant's defence was an alibi and in the other consent.

The point upon which the applicant relies in order to justify the grant of special leave to appeal is the failure of the trial judge to direct that the trial of the applicant upon each of the charges of rape should proceed separately. Upon application made by the applicant to the trial judge, it was conceded that the charges might be joined as a matter of law, but it was submitted that the trial judge ought to sever the indictment in the exercise of his statutory discretion. The refusal of the trial judge to exercise his discretion in this manner would not, of itself, ordinarily raise a question which would attract special leave to appeal. However it appears that, apparently by oversight rather than design, neither in the application made to the trial judge, nor in the subsequent appeal against conviction made to the Western Australian Court of Criminal Appeal, was any reference made to the recent decision in Sutton (1984) 152 CLR 528; 11 A Crim R 331, in which relevant observations were made by members of this Court. Moreover, the trial judge, in refusing to sever the charges, relied upon a passage in the speech of Lord Pearson in Ludlow v Metropolitan Police Commissioner [1971] AC 29 at 41, in which it is said that, where counts are properly joined, a trial judge has no duty to direct separate trials unless, in his opinion, there is some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice. The learned trial judge in making his ruling expressed the view that "the mere fact alone of two similar charges being joined of itself would not be a ground for saying that it is of itself so prejudicial that the joinder should never be made" and went on to say that he must direct his mind "to see if there is that special feature present". He concluded that there was no special feature which would justify his ordering separate trials.

Had the trial judge been referred to Sutton it is unlikely that he would have adopted this approach. That was a case involving multiple counts of rape charged in the same information. Gibbs CJ said (at 531; 333):

Before us it was accepted by counsel for the prosecution that where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. That was the view taken by the majority of the House of Lords in Boardman [1975] AC 421 at 442, 447, 459, and it is a view consonant with justice, for, as Lord Cross of Chelsea said in Boardman at 459, to let in inadmissible evidence by trying the charges together would be to pay no more than lip service to the rule which excludes evidence of similar facts. The concession made by counsel and referred to by the Chief Justice clearly reflected the view which his Honour held.

Brennan J in Sutton at 541-542; 340-341, expressed his views as follows:

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. Brennan J went on to refer to the same observation of Lord Cross of Chelsea as that referred to by the Chief Justice.

Neither Murphy J, Deane J nor I found it necessary in Sutton to go further than to conclude that the evidence admissible upon one count was admissible upon the others and for that reason the trial judge in that case properly refused to order separate trials. However, nothing which we said would detract from the force of the observations made by the Chief Justice and Brennan J. Even if, viewed strictly, those observations were no more than obiter dicta, having regard to the context in which they were made, they were nevertheless of such relevance that failure to refer to Sutton deprived the trial judge of assistance which he ought to have had and may have contributed to his mistaken belief that he must look for some special feature in order to justify separate trials. When the error was compounded by failure to refer to Sutton in the Court of Criminal Appeal so that the appeal proceeded in disregard of recent authority in this Court upon the point in issue, then, in my view, the point assumes a general importance which justifies the grant of special leave.

Provision is made in each State, based upon the Indictments Act 1915 Imp, for the joinder of more than one charge in the same indictment. At common law charges of felony and charges of misdemeanour could not be tried together because the incidents of trial of each were different, particularly the challenges available. There was, however, no legal objection to the joinder of any number of felonies or any number of misdemeanours. Nevertheless, the unfairness of joinder to the accused in some cases was recognised and

frequently the mere fact of accusing him of several things, was supposed to tend to increase the probability of his being found guilty, as it amounted to giving evidence of bad character against him: see Castro (1881) 6 AC 229 at 244, per Lord Blackburn. Where unfairness resulted from the joinder of charges of more than one felony in the same indictment, the prosecutor was put to his election to proceed upon one only. The same practice was, apparently, not normally applicable to misdemeanours: see Ludlow at 36. Section 4 of the Indictments Act 1915 provided for the joinder of charges in the same indictment, both of felonies and misdemeanours, and provided that where a felony was tried together with any misdemeanour "the jury shall be sworn and the person accused shall have the same right of challenging jurors as if all the offences charged in the indictment were felonies". The further provision which was made under that Act and its Rules with respect to the joinder of charges is reflected in s 585 of the Criminal Code WA. That section provides, so far as is relevant: Except as hereinafter stated, an indictment must charge one offence only, and not two or more offences:

Provided that 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.

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.

It was under the last part of the section that application was made to the trial judge for separate trials in this case, it being conceded that joinder was permissible under the first part of the section. I am inclined to think that the concession was correctly made. Even though only two counts of rape were charged, it is now clear that two offences might amount to a series even if in another context such a limited number might be insufficient. In Kray [1970] 1 QB 125 at 130, it was pointed out that this view had been accepted for fifty years and that any other view would produce the perverse result that "whereas three murders could be charged in the same indictment two could not": see also Ludlow at 38 and Anderson (1973) 5 SASR 256 at 265.

However, for two or more offences to constitute a series there must be a nexus or a connection between them. This, I think, is something different from the express requirement in s 585 that the offences must be of the same or a similar character. Whatever may historically be behind the use of those words (cf Archbold's Criminal Pleading Evidence & Practice (42nd ed, 1985, 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.

In the present case the two counts of rape with which the applicant was charged were the same offences in law. There was, I think, a sufficient similarity in fact to constitute them a series in that the Crown alleged that each offence occurred in the early hours of the morning after the attendance of the accused at the same night club. Of course, there were dissimilarities and, the question being one of degree, it is one upon which minds might differ. But, as the authorities recognise, that 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 and the provision allowing joinder should not, because of the discretion, be given an unduly restricted meaning: Kray at 131.

In this case, I think that the trial judge erred in the exercise of his discretion by failing to require the indictment to be severed. The test is not whether there is some special feature of the case over and above the joinder of the charges in question which can be seen to give rise to possible prejudice. I very much doubt whether Lord Pearson in Ludlow intended to use the expression "some special feature" in this way. At all events, it is clear that the very nature of some offences is such that as a general rule they should not be tried together because of the risk of prejudice where the evidence admissible in proof of one is not admissible in proof of the other.

The risk of prejudice is, of course, the risk that, notwithstanding any direction to the jury to consider the offences separately, they will treat the evidence upon one charge as evidence of similar facts in support of the other. Similar fact evidence is excluded by the law where it can do no more than demonstrate a criminal propensity, because the prejudicial effect of the evidence is far greater than any relevance which it might have. However, where the evidence has relevance beyond showing a criminal disposition then it will be admissible provided its probative value is sufficient to outweigh its prejudicial effect. The subject is examined in Sutton and I shall not repeat the examination here.

It is sufficient to say that it was pointed out there that the cases in which similar fact evidence may have sufficient probative value to make it admissible are not confined, but recognised instances occur where the evidence is relevant to prove intent or to disprove accident, to prove identity or to disprove innocent association. Where evidence of the commission of one offence is, upon such a basis, admissible in proof of the commission of another, there will be nothing to be gained by directing separate trials because the same evidence would be admissible in each trial.

In this case, however, there is no suggestion that the evidence admissible upon one count was admissible in proof of the other. That is because of the ordinary principle that similar fact evidence which shows no more than propensity is to be excluded because of the inevitable prejudice which it carries with it. In cases where the prejudice is such that upon a joint trial it cannot be satisfactorily excluded by a direction to the jury from the trial judge, then separate trials should be required and that is the question to which the trial judge ought to have directed his mind.

I have said that the very nature of some offences is such that, as a general rule, they ought not to be tried together if the evidence on one count is not admissible on another count and I think that sexual offences fall into that class. That was the view taken by the Chief Justice in Sutton and it is a view which is acted upon in practice. It is a view which derives support from the majority in Boardman [1975] AC 421. I prefer to express myself in a general way rather than categorically, because it is possible to conceive of instances where the high degree of prejudice which can usually be expected to arise from evidence of offences of a sexual nature does not, in fact, arise or may be adequately overcome, by a proper direction. Where, for example, the sole evidence implicating an accused person in a number of offences of rape is the one confession, it may well be that no unfair prejudice will arise from a joint trial of those offences: cf McDonald (1979) 21 SASR 198. But as a general rule, sexual offences form a special class of offences which should be tried separately except where the evidence upon one count is admissible upon another count. The trial judge, in looking for some special feature in this case to justify an order for separate trials, failed to have regard to the nature of the offences involved. That, of itself, required the making of the order sought.

It follows from what I have said that I would grant special leave to appeal and allow the appeal.