1. Following a trial in the County Court, the applicant was found guilty by a jury of 12 sexual offences against his former wife, 'YD', and his two step-daughters, 'ND' and 'JD'.
2. Subsequently, on 1 June 2022, the trial judge sentenced the applicant to a lengthy period of imprisonment.[2]
3. By a notice filed on 14 June 2024, the applicant seeks an extension of time within which to file a notice of application for leave to appeal against conviction. The extension of time was not opposed by the prosecution. We will grant it.
4. The applicant seeks to challenge his conviction on three grounds:
   1. A substantial miscarriage of justice occurred by reason of the impermissible joinder of Charges 1 - 12 with Charges 13 - 15.
   2. A substantial miscarriage of justice occurred by reason of the defence application to have Charges 13 - 15 included on the same indictment as Charges 1 - 12, in circumstances where such application had no rational justification.
   3. The learned trial judge erred in directing the jury as to tendency evidence in an incomplete and erroneous manner, resulting in a substantial miscarriage of justice.
5. Very fairly, counsel for the respondent has conceded that ground 1 should succeed, accepting that there was impermissible joinder of charges on the indictment upon which the applicant was tried, so that 'a substantial miscarriage of justice has been occasioned, and a re-trial must be ordered'.[3]
6. For the reasons that we will briefly set out, we consider that the concession of the respondent's counsel was properly made and should be accepted.
7. We will thus grant leave to appeal against conviction on ground 1; allow the appeal; set aside the convictions; and order a new trial.

1. To understand the issues raised by the first ground, it is necessary to set out in some detail what occurred pre-trial.
2. On 12 April 2019, the applicant was committed to stand trial in the County Court on a number of charges related to sexual offending against three complainants: his former wife, YD, and his two step-daughters, ND and JD.
3. An initial directions hearing was conducted on 29 April 2019. At that stage, the prosecution had filed a 17 charge indictment against the applicant alleging sexual offending against all three complainants.
4. At another directions hearing on 12 December 2019, defence counsel foreshadowed an application for severance of the indictment would be made, which, if granted, would result in two trials, one involving charges relating to YD, and the other involving charges relating to ND and JD. At a further directions hearing on 20 February 2020, however, defence counsel indicated that the foreshadowed application for severance would not be pursued.
5. Notwithstanding that defence counsel did not pursue severance, the prosecution determined that severance should occur, and, on 24 November 2020, filed over two new indictments, one containing charges for alleged offences against YD, and the other containing charges for alleged offences against ND and JD.
6. In the course of a further directions hearing on 5 February 2021, defence counsel indicated that they would be seeking to have all charges joined, senior counsel for the applicant complaining to the presiding judge that 'unilaterally without reference to our side, the Crown chose to sever the indictment'. The judge then expressed a preliminary view that the charges should not be rejoined.
7. On 8 February and 10 February 2021 respectively, defence counsel and prosecution counsel filed written submissions directed to the issue of joinder and severance.
8. On 10 February 2021, pre-trial argument proceeded before the judge. Defence counsel sought 'an order that the two indictments: one concerning the [respondent's] two step-children ... and one concerning ... the mother of the [respondent's] step-children and former wife of the [the respondent] ... be re-joined in circumstances where ... there was originally one indictment [but] the Crown took the view that there ought be severance and there are now two [indictments] as a result of [that] decision to sever'. The prosecutor expressed concerns about the prejudice to the applicant should all charges be heard together. Senior Counsel for the applicant made it clear that the manner in which the defence case was to be run required all charges be heard together. In essence, the defence case was not only that YD was lying, but she had also recruited her daughters to make false allegations against the applicant.
9. The judge did not rule. Addressing the prosecutor, however, the judge said she 'just can't see how the prosecution can maintain the line that it does', in circumstances where 'we have senior experienced counsel who's considered the issues in this matter and have a particular forensic purpose in mind for keeping, or putting the two indictments together, and in circumstances where that prejudicial material would be introduced by defence in any event'.
10. In the result, in response to the defence request for joinder, the prosecution filed over a further new 15 charge indictment, joining all charges against all three complainants. It is clear that the prosecution's decision to join the charges in a single indictment was made at the request of senior counsel for the applicant, and notwithstanding the prosecutor's expressed concerns.
11. Between 29 November and 13 December 2021, the applicant was tried on the new indictment which contained in total eight charges of committing an indecent act with or in the presence of a child under 16[4] (charges 1 to 4, 6, and 8 to 10); two charges of incest[5] (charges 5 and 7); two charges of sexual assault[6] (charges 11 and 12); and three charges of rape[7] (charges 13 to 15). The charges related to the three complainants as follows:
    • ND: five charges of indecent act (charges 1, 2, 3, 4 and 6) and two charges of incest (charges 5 and 7).
    • JD: three charges of indecent act (charges 8, 9 and 10) and two charges of sexual assault (charges 11 and 12).
    • YD: three charges of rape (charges 13, 14 and 15).
12. On 6 December 2021, the applicant was acquitted by direction on charges 8, 9 and 10 (relating to JD); and, on 13 December 2021, the jury found the applicant guilty of the remaining charges.

1. Charges 1 and 2 were alleged offences involving ND. The relevant offending allegedly occurred between 1 June 2014 and 31 August 2016 when ND, the applicant's younger step-daughter, was aged between 12 and 14, and involved the applicant touching her breasts. Charge 3 also involved the applicant touching ND's breasts between 20 June 2015 and 31 July 2015, when she was aged 13 years. Charge 4 once more involved the applicant touching her breasts, allegedly occurring between 1 August 2015 and 31 March 2016, when ND was either 13 or 14 years of age; and charge 5 involved the applicant digitally penetrating ND's vagina during the same episode as the event founding charge 4. And charges 6 and 7 were other alleged incidents of breast touching and digital penetration in 2016 when ND was aged 14.
2. Charges 11 and 12 related to alleged sexual assaults on the applicant's older step-daughter, JD, occurring between 1 January 2016 and 25 September 2016, when JD was aged 17 years. They involved the applicant allegedly touching JD's breasts and thigh.
3. Charges 13, 14 and 15 related to alleged rapes of the applicant's former wife, YD. The event founding charge 13 allegedly occurred at the family home during November 2016 when the applicant penetrated his wife's vagina with a cucumber; charge 14 involved the applicant penetrating his wife's mouth with his penis in the family home in August 2017; and charge 15 involved the applicant anally raping his wife with his penis in April 2018, at an area of parkland near the family home.

1. Whether charges involving more than one complainant are properly joined in an indictment is dictated by the terms of the Criminal Procedure Act 2009 ('CPA').
2. Section 159(1) of the CPA provides that, subject to the Public Prosecutions Act 1994, 'the DPP or a Crown Prosecutor in the name of the DPP may file an indictment'. By reason of s 159(3)(c), an indictment must (apart from other requirements) 'comply with Schedule 1'. Significantly, cl 5(1) of Schedule 1 provides that an indictment 'may contain charges for related offences'.[8] Also significantly, s 3(1) defines 'related offences' as follows:

related offences means offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character.

1. In White,[9] this Court determined that, properly construed, cl 5(1) of the CPA effected a complete prohibition on joinder of unrelated offences,[10] and that the provisions of the CPA did not permit an accused person to waive the requirement that only charges for related offences be joined in an indictment.[11]
2. In the present case, the respondent's counsel in this Court conceded that the offences against the two child complainants, JD and ND (charges 1 to 7, 11 and 12), and the adult complainant, YD (charges 13 to 15), were not founded on the same facts. The incidents founding charges 1 to 7 and 11 and 12 occurred between 1 June 2014 and 31 December 2016, and those founding charges 13 to 15 occurred between 22 November 2016 and 20 April 2018. Although the charges involving JD and ND were cross-admissible and properly joined, the factual basis of charges involving YD existed independently of the child complainant charges.
3. Moreover, counsel for the respondent conceded that the offences do not form part of a series of offences of the same or similar character. Offending against children is of a completely different character to offending against an adult. YD alleged she was raped in the context of a relationship breakdown over a period of three years, the first offence potentially occurring sometime before the offending against the children had ceased.
4. Further, the offending against the children involved touching the breast and thigh, and also digital penetration. The only possible nexus between the charges is the relationship between the parties and the threat made by the applicant to YD that he would sexually assault the children if she did not comply with his demands. So much does not elevate the offending to a series of offences of the same or similar character. Whilst YD did state that she complied with the applicant's demands to protect her children, the applicant had moved out of the family home by this time.
5. Counsel for the respondent properly conceded that, since the offences do not form part of a series of offences of the same or similar character, a trial of the offences joined in a single indictment resulted in a substantial miscarriage of justice.
6. Ground 1 must succeed.

1. In light of our conclusions on the first ground it is unnecessary to consider grounds 2 and 3.[12]

1. For the foregoing reasons, leave to appeal against conviction will be granted; the appeal will be allowed; the convictions sustained by the appellant in the County Court will be set aside; and a new trial will be ordered.

[1] To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] DPP v Langley (a pseudonym) [2022] VCC 799 ('Reasons for Sentence').

[3] Counsel for the respondent also fairly conceded that the direction complained of in ground 3 was erroneous and 'had the capacity to affect the outcome of the trial'.

[4] Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014, s 47(1). The maximum sentence is 10 years' imprisonment.

[5] Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s 44(1). The maximum sentence is 25 years' imprisonment.

[6] Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014, s 40(1). The maximum sentence is 10 years' imprisonment.

[7] Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 38(1). The maximum sentence is 25 years' imprisonment.

[8] On the assumption that charges are properly joined, s 170 of the CPA provides (so far as relevant) that 'the charges must be heard together unless an order is made under section 193'.

[9] White (a pseudonym) v The King [2022] VSCA 278 ('White').

[10] White, [64] (Priest and Taylor JJA).

[12] During the hearing in this Court, senior counsel for the applicant agreed that, if the Court was minded to act on the respondent's concession concerning the first ground, it would be unnecessary to consider grounds 2 and 3.