disuse. The rule was made at a time when indictments, even simple ones, were lengthy and cumbersome documents which it would be difficult for a prisoner, who frequently had to defend himself, to understand. He was not then entitled to see the depositions which would have told him clearly what was the case against him. At the present time, when nearly all accused are legally aided and when the indictment is by no means the only information on which he has to prepare his defence, an absolute rule against joinder of felonies would be quite antiquated. But it was a good rule at the time when it was made and it was made by virtue of the judicial power to protect defendants from injustice and oppression. If the court has the power to see that a defendant is not oppressed by having too much put against him in one indictment, it must surely also have the power to see that he is not oppressed by having the case against him spread over too many indictments." 14. The Indictments Act 1915 (UK) contained two main provisions, s4, and r3 of Schedule 1. These provided as follows: S4: "Subject to the provisions of the rules under this Act charges for more than one felony or for more than one misdemeanour, and charges for both felonies and misdemeanours, may be joined in the same indictment, but where a felony is 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." 15. Rule 3 of Schedule 1 provided: "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." 16. The problem that arose from the rule of practice established by R v Jones was that it lead to inconvenience. If the prisoner was acquitted of murder and manslaughter he could not be proceeded against with any other charge on the indictment without the leave of the trial judge. The same rule applied if a second indictment was presented in respect of some other charge that might otherwise have been joined under Rule 3 of Schedule 1. The reason for this was to prevent injustice. There could be inconsistent verdicts; problems might arise as to whether the accused could plead autrefois acquit; the Crown might start with a minor charge as a trial run so as to test the strength of the defence; the prosecutor might seek to harass a defendant with a multiplicity of process in different courts. It was once thought that once an indictment was presented, the court could not refuse to stay it as an abuse of process. But this was rejected by Lord Devlin who said that such a power existed. His Lordship concluded (at 1202) that there was no justification for the rule of practice in R v Jones, and it should no longer have effect; Lord Reid and Lord Pearce thought likewise. 17. Consequently, in 1964, Lord Parker CJ laid down a new practice direction: "It will be for the prosecution to frame the indictment as they think appropriate, the judge having a complete discretion under s5(3) of the Indictments Act 1915 to direct that the prisoner should be tried on any one or more counts." (See (1964) 1 WLR 1244). 18. In the Code states, the matter was quite clear. The Queensland Code, by s567, enacted provisions, until 1976, that the section did not authorise the joinder of a charge of wilful murder, murder, or manslaughter, with a charge of any other offence. Western Australia's Code was in the same terms until 1982 (s585 amended by Act 20/1982, s6). The Tasmanian Code (s311(3)) appears to still provide that "No indictment for murder shall contain a charge of any other crime." In R v Packett [1937] HCA 53; (1937) 58 CLR 190, the High Court held that this did not prevent two or more counts of murder in the same indictment, although Starke J (at 204) commented that this was an undesirable practice owing to the serious nature of the charge. 19. As to the non-Code States, Victoria and South Australia followed the English lead by enacting provisions similar to the Indictments Act 1915. In New South Wales and the A.C.T., the common law continued to apply, except that s567A of the Crimes Act 1900 (NSW), by an amendment in 1979, abolished the rule that counts for felonies and misdemeanours cannot be joined in one indictment, and s370 limited the number of non-capital counts that could be joined to three, as well as a six month time limit between the first and last of the offences. 20. The position in the Northern Territory was peculiar. Other than for a brief period between 1930 and 1933, the right to trial by jury had been abolished, firstly by the Observance of Law Ordinance 1921, and secondly by the Criminal Procedure Ordinance 1933, except in the case of murder. Of necessity, this prevented any other charge being joined with that of murder. However, on 1 July 1962 the Criminal Procedure Ordinance 1962 restored the right to trial by jury in all indictable offences. At that time, the position was governed by the Criminal Law Consolidation Act and Ordinance 1876-1960, s334. In effect this meant that the common law rules applied except for very minor changes made by the Act itself. In 1968 the Indictments Ordinance came into force. By s8 it was provided that: "... charges for more than one felony or for more than one misdemeanour, and charges for both felonies and 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." 21. Section 19 empowered the court to order separate trials if the accused: "... may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in the same indictment ..." (This was the same provision as in s597A of the Queensland Code (inserted in 1976).) 22. There was no statutory provision in the Indictments Ordinance prohibiting a charge of murder being joined with any other type of charge. This remained the position until 1 January 1984 when the present Criminal Code came into force. It is to be noted that, except in limited circumstances, if the facts disclosed some offence other than that charged, the prisoner was entitled to be acquitted. The only exceptions were that on a charge of murder, a verdict of guilty of manslaughter might be entered; and the Criminal Law Consolidation Act and Ordinance (s345) permitted the jury to find the accused guilty of an attempt in any case, whether the charge was one of felony or misdemeanour. 23. It is often said that the Northern Territory's Criminal Code is based upon the Queensland Code, but that is far from being an accurate statement. Even the most cursory comparison between the two codes shows how much they differ. In relation to the provisions I am now called upon to interpret, they obviously come from sources other than the Queensland Code as it stood in the early 1980s. The provisions of s316 of the Northern Territory's Code are similar to those contained in s576 of the Queensland Code as it existed before 1976, but quite different from the provision in force thereafter. Prior to 1976, as I have pointed out, s567 of the Queensland Code specifically prevented a charge other than murder being joined in an indictment for murder. Section 567(2) of the Queensland Code as it was after 1976 is in para materia to s309 of the Northern Territory Code. The language of the two Queensland Code provisions have always been in conformity with one another. When, in 1976, the Queensland Code was amended to permit other charges to be included on an indictment which contained a murder charge, s576 was amended to acknowledge this difference. Why the draftsman of the Northern Territory Code modelled s316 of the Northern Territory Code on the pre-1976 Queensland form and s309 on the post 1976 Queensland form is difficult to fathom. Mr McDonald, for the prisoner, submitted that notwithstanding that s309 of the Code, which permits the joinder of more than one charge in the indictment, does not have a specific provision expressly excluding murder or manslaughter from its purview, s316 has this effect nevertheless. 24. Section 316 provides: "316. INDICTMENT CONTAINING COUNT OF MURDER OR MANSLAUGHTER (1) Upon an indictment charging a person with murder he may be convicted alternatively of manslaughter, but not of any other offence except as otherwise expressly provided. (2) Upon an indictment charging a person with manslaughter he cannot be convicted of any other offence except as otherwise expressly provided." 25. The word "indictment" is not the same as a charge or a count. It is defined by s298 as the written document which contains the charge. The present Queensland provision (s576) acknowledges this difference. It says: "Upon an indictment ... containing a count of the crime of murder, he may be convicted on that count of the crime of manslaughter..." etc. (emphasis mine). Mr McDonald further submits that, so far as the words "except as otherwise expressly provided" are concerned, they apply in the circumstances of this case only to s318 which permits a verdict of guilty of a dangerous act contrary to s154, as an alternative to murder or manslaughter. I note that s317 also specifically provides for alternatives to murder and manslaughter in the case of victims who are children recently born. 26. Mr Wallace, for the Director of Public Prosecutions, conceded that s316 was badly drafted, but he pointed out that s316 was contained in Div 3 of Part IX of the Act, "EFFECT OF INDICTMENT: ALTERNATIVE VERDICTS", whereas s309 was in Div 2, "INDICTMENTS." Therefore, s316 had to be read as limiting provisions such as ss320,325 (attempts) and 326 of the Code. Thus, for example, if the Crown failed to prove that the victim had died, attempted murder under s316 is not an alternative. 27. Read literally, Mr McDonald's submission has considerable force, but I do not consider that I am bound, even when interpreting the Criminal Code, to give s309, which is a procedural provision, a limited construction, if on a consideration of the Act as a whole, the intention of the legislature is manifest. Nor should I attempt to interpret the Code by reference to the practice as it existed prior to the enactment of the Code unless the provisions are doubtful or have previously acquired a technical meaning: Sungrave Pty Ltd v Middle East Airlines Airlibaw S.A.L.(1974-5) [1975] HCA 6; 134 CLR 1 at 22 per Mason J. 28. One thing that stands out immediately when looking at the provisions of each of the sections in Division 3 of the Code, is that every section is in the same form as s316. Each section begins with the words "upon an indictment charging a person" and none of the sections refer to counts in an indictment. This supports the view that the words "upon an indictment charging a person" were meant to refer to, where there was more than one count, the relevant count in the indictment. Further, s309 contains no express prohibition against joining other counts to an indictment containing a charge of murder, unlike the Tasmanian provision, and the former Queensland and Western Australian provisions. The fact that s316 is in Div 3 dealing with alternative verdicts, whereas s309 is in Div 2, dealing with indictments, is further support for this construction. Further, s316(1) uses the word "alternatively" although I note that this word is not used in s316(2). However, it lends some further support to Mr Wallace's submision. No injustice or inconvenience which cannot be remedied will occur by giving s316 the construction contended for by Mr Wallace, as s341 gives to the court a broad discretion to order separate trials if for any reason the court thinks it desirable, notwithstanding that there is no prejudice or embarrassment to the accused. On the other hand, injustice could occur to an accused person, for the reasons mentioned by Lord Devlin, if s316 is construed in the manner contended for by Mr McDonald. Finally, it would seem most odd that the Legislative Assembly, which had previously not enacted any such restriction as Mr McDonald contends for, should have wished to have imposed one in 1984, when the trend elsewhere had been to move in the opposite direction. I therefore conclude that s316 does not preclude the joinder of counts permitted to be joined by s309 to a count of murder in an indictment. The motion to quash the indictment on this ground therefore fails. 29. Mr McDonald's next submission was that s309 did not permit the joinder of the other counts in the circumstances of this case. Mr Wallace mainly relied upon a submission that the offences were founded on the same facts and in any event were a series of offences committed in the prosecution of a single purpose. At this point it is necessary to briefly consider the facts of the Crown's case. 30. The Crown alleges that the accused and his victim were two of a group of five men who came together on Christmas eve, 1991, and had a lot to drink in the lounge of the caravan where the accused lived. Following an argument, the accused went to the bedroom of his caravan, loaded a .303 rifle, pointed it at his victim, and pulled the trigger. The rifle jammed and his victim left. The accused announced that he would shoot his victim if he returned. These are the main facts relied upon by the Crown in order to support the first and second counts. 31. Perhaps half an hour later, the victim returned. The accused was waiting with his rifle behind a tree. He shot his victim at a range of four to six metres. The victim ran off, but collapsed and eventually died. The accused in his record of interview claims that he acted in self-defence against a knife attack, but the Crown intends to show that, whilst the victim did have a knife in his possession, the wound to the deceased will demonstrate that his arm was not raised, as the accused claims, when the shot was fired. These facts are relied upon by the Crown in order to support count three, the murder charge. 32. Count four relates to what happened about thirty minutes later when police arrived. The police were attempting to find their way to the caravan. One had a torch which was lit. The accused fired at the light. The accused claimed that he was concerned that his victim, or a friend of his victim, or both, might be coming back. 33. Mr Wallace contended, and Mr McDonald conceded, that the whole of the evidence the Crown intended to call, would be relevant and admissible in relation to the charge of murder. 34. There are few authorities which discuss the meaning of the phrase "founded on the same facts." In R v Barrell and Wilson (1979) 69 Crim App R 250, the test laid down was whether the charges have a "common factual origin." Although in that case the events were not closely connected in proximity or time, they were held to be properly joined. Thus it would appear that if the third and fourth charges are best explained by reference to the facts of the first and second charges, the charges have the necessary factual origin. It seems to me that it could not be said that the facts of the third or fourth counts would be properly explained without reference to the facts of the first and second counts, and that therefore they have the necessary factual nexus to permit the joinder on this basis. A similar result was reached by the Full Court in R v Demirok, supra, at 249 where the charges arose from one series of events occurring in close proximity and time and involving the same persons. Although the persons involved in count four in this case are not the same, the Crown case is that the accused thought that the deceased may have been coming back to the caravan, and in my opinion the events in this case were connected in a way which could properly be described as a series which occurred in close proximity and time. On either basis, it seems to me that the offences are all "founded on the same facts." 35. If I am wrong in this conclusion, I would nevertheless hold that on the Crown case the offences as alleged were a series committed in the prosecution of a single purpose, namely to kill the victim. 36. I therefore reject the motion to quash on this ground and hold that the charges are properly joined. 37. The next submission was that the indictment was "vexatious and embarrassing" and I should quash it pursuant to s339(1)(a). No submission was made that the conduct of the prosecutor was vexatious in the sense that the proceedings were an abuse of process; rather the force of the submission was that the proceedings were calculated to embarrass, firstly, by distracting the jury from its main task of determining the issues raised by count three, and secondly, by the place on the indictment of the murder charge. I was referred, in support of this submission, to the observations of Muirhead J in R v Siugzdinis and Mauri (1984) 32 NTR 1 at 9 and 11-12 which I have considered, which relate to the power of the court to quash or stay proceedings where, due to a multiplicity of charges, an accused may be embarrassed. Muirhead J observed (at 11): "But when the indictment is presented in the criminal jurisdiction of this court and is met by motion to quash, the court must determine the matter in accordance with s339. This will involve considerations of the processes of the trial - the governing principle being one of fairness. Multiplicity of counts may embarrass, joinder of charges not sufficiently associated in nature, time or place may also do so. Joinder of trivial or unnecessary counts may be regarded as vexatious, joinder of accused persons in the one indictment may embarrass. A judge in determining the many issues which may arise for consideration under this section must, however, keep in mind the practical aspects of trial by jury." 38. However, it is clear any embarrassment due to multiplicity of charges does not require automatically that the indictment be quashed or that some or all of the charges be stayed. The alternative course under s341, to order separate trials, must also be considered. I am not convinced that the additional charges are embarrassing in any sense other than the possible risk of compromise verdicts, which I will discuss later. They could not be said to be trivial, and although close together in time, they could not be said to be all so much part of the same episode that it was unnecessary to sever the separate acts into separate offences. I think any danger to the accused due to embarrassment could be adequately met by ordering separate trials. I consider that the motion to quash should be dismissed. 39. This leaves the question of whether the count for murder should be separately tried. As I am not persuaded that there would be any actual prejudice or embarrassment, other than the risk of compromise verdicts, which could not be overcome by adequate warnings and instruction to the jury, the main question is whether this risk is sufficient or whether, for any other reason, separate trials should be ordered. 40. Under the Northern Territory's Criminal Code, the offences of murder and manslaughter are not the same as those offences at common law, and have their own peculiarities which are not always easy to understand or explain. The main reason for this is s154, which establishes a crime unknown to the common law, viz dangerous act. The effect of the provisions of the Code relating to murder, manslaughter and dangerous act, is that in some circumstances, what would amount to murder or manslaughter in other jurisdictions is the crime of dangerous act in this Territory. The origin of s154 may be traced to the suggestion of Barwick CJ in R v O'Connor [1980] HCA 17; (1980) 146 CLR 64 at 87. In the context of a murder charge, and the alternative charge of manslaughter, where lack of intent due to intoxication or lack of actual foresight is involved, not only must the jury be charged on the elements of what is a dangerous act (s154(1)), but also in relation to the circumstances of aggravation referred to in s154(3) and (4); and it is necessary, if a verdict of guilty of a dangerous act is reached, to receive separate verdicts in relation to each circumstance of aggravation. Thus, in a typical case, the jury must consider separately murder, manslaughter, dangerous act and at least one, if not two, circumstances of aggravation. To add to the jury's difficulties, a trial judge is required to explain the difference between the foresight attributable to a "reasonable person," which, by reason of s31(2), is relevant to a charge of manslaughter, and the foresight attributable to an "ordinary person similarly circumstanced" which is required by a charge under s154(1). As well, intoxication for the purposes of murder, manslaughter and s154(4) has differing relevance and differing legal tests and standards and even the onus of proof varies in certain respects so far as manslaughter is concerned. 41. In the context of the present case, it seems reasonably probable that I shall have to direct the jury on provocation, and self-defence in relation to the murder charge. As intent is also an issue, both by reason of the fact that the accused denies any intent, and also, possibly, by reason of intoxication, manslaughter might arise either because of provocation (where there is an intent to kill) or because of lack of intent but actual foresight of death occurring as a consequence of discharging the weapon. Thus the issues to be tried in respect of the charge for murder alone are both serious as well as complex. 42. When one has regard to the two main other charges, which are two different forms of attempted murder under s165 of the Code, and both of which also require an intent to kill, it is evident that these charges are liable to distract the jury from their main task. In considering counts one and four, the intent to be proven must be to kill. Count two is present on the indictment if the intent is to cause grievous harm. Thus the accused could be convicted in relation to the first and second episodes with either intent. But in relation to the first episode (the attempted shooting inside the caravan), the jury must agree on which intent it is, whilst in relation to the second episode (the murder), they need not, as long as they are agreed in the result. In relation to count four, the intent must be to kill; nothing else will do. Thus the jury would be required to consider the state of mind of the accused at three separate stages, leading to the risk of compromised verdicts. In relation to each stage, the defences will not necessarily be the same. Provocation for instance seems to be inapplicable to count four, although as mistake may well arise, it is by no means impossible, and in this situation provocation can be an absolute defence, and not merely a defence which reduces murder to manslaughter as in the case of count three (see s34(1)). If it does arise, there are also conceptual difficulties in distinguishing between "acts not likely to cause death or grievous harm" on the one hand (s34(1)(e)), and "an act likely to endanger human life" (s165(b)) on the other. Finally, dangerous act is an alternative to counts one and two and would also have to be separately considered, with the relevant circumstances of aggravation under s154(4). 43. As opposed to that, I recognise that I have to also weigh up the cost to the Crown if separate trials are ordered. But the cost in this case would not be significant. Only a few witnesses, mostly police, are involved. There are no other factors in favour of hearing the charges together. There is no serious risk that if the accused were to be acquitted of murder he could not be convicted of the other offences. Mr Wallace submitted that there may be a doubt as to whether counts one, two and four were "similar offences" within the meaning of s18 of the Code (which deals with autrefois acquit). I am unable to see how any such doubt exists. If attempted murder is indeed or ever could be a similar offence to murder, it is strange that s316 of the Code expressly excludes that offence as an alternative verdict to murder. If the purpose of the Crown is to charge attempted murder as a separate count because they are "similar offences" and in order to side-step s326 of the Code, I do not think that I should facilitate that purpose. 44. In conclusion, I consider that there ought to be a separate trial of the murder charge from the other charges, because of the complexities involved in having to decide more than the murder charge in this case, and the risk of compromise verdicts. 45. Accordingly, I order that count three in the indictment be tried separately from counts one, two and four. Obviously I expect the Crown to proceed with the murder charge first. If this does not occur, I would entertain a further motion under s339 of the Code. 46. I direct that these reasons be not published except to the parties until after the trial on the charge for murder is concluded.