R v Mack [2009] ACTSC 83 (16 July 2009)

Last Updated: 1 September 2009

R v EDWIN BOBBY MACK
[2009] ACTSC 83 (16 July 2009)

CRIMINAL LAW & PROCEDURE – information, indictment or presentment – joinder of counts, ss 269, 434B(1) Crimes Act 1900 (ACT) – severance of indictment, s 264(2) Crimes Act 1900 (ACT) – whether accused ‘prejudiced or embarrassed’ in their defence – discreditable nature of sexual intercourse without consent charge
Crimes Act 1900 (ACT), ss 264(2), 269, 296, 434B(1)
Evidence Act 1995 (Cth), ss 97, 101, 136
Crimes Act 1958 (Vic)
Crimes Act 1914 (Cth), s 4K(3)

Court Procedures Rules 2006 (ACT), rr 4751, 4753

Williams G, “The Count System and the Duplicity Rule” [1966] Crim LR 255
Yates C, “How Many Counts to an Indictment” [1976] Crim LR 428
Tucker P, “Joinder of Criminal Counts in Queensland – Principles, Policy and Conflict” (1998) 17 Aust Bar Rev 239
Farrin J, “Rethinking Criminal Joinder: an Empirical Analysis of the Empirical Research and its Implications for Justice” (1989) 52 Law Cont Probl 325
M Weinberg, “Multiple Counts and Similar Fact Evidence” in Campbell E and Waller L, Well and Truly Tried (Law Book Co, 1982) pp 250-270
Ross D, “Joinder of Counts Against One Accused” [2004] 9(1) Deakin LR 197

Fitzgerald v Director of Public Prosecutions & Ors (1991) 24 NSWLR 45
De Jesus [1986] HCA 65; (1986) 22 A Crim R 375
Quinn (1991) 55 A Crim R 435
Bullen (1998) 102 A Crim R 74
R v CHS [2006] VSCA 19; (2006) 159 A Crim R 560
Taipavalu (2002) 130 A Crim R 513
R v Christou [1997] AC 117
R v KRA [1999] VSCA 157; [1999] 2 VR 708
R v GAE [2000] VSCA 18; [2000] 1 VR 198
R v McBride [2007] ACTSC 8
R v TJB [1998] 4 VR 621
Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528
Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
R v Collie, Kranz and Lovegrove [1991] SASC 2996; (1991) 56 SASR 302
R v Demirok [1976] VR 244
Connelly v Director of Public Prosecutions (UK) [1964] AC 1254
Cady v Smith (1993) 117 FLR 132
R v Kristiansen [2008] ACTSC 110
Bikic [2000] NSWCCA 106; (2000) 112 A Crim R 300

No. SCC 328 of 2008

Judge: Refshauge J
Supreme Court of the ACT
Date: 16 July 2009

IN THE SUPREME COURT OF THE )
) No. SCC 328 of 2008
AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

EDWIN BOBBY MACK

ORDER

Judge: Refshauge J
Date: 16 July 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The time for making the application to sever counts on the indictment under r 4763(3) of the Court Procedures Rules 2006 (ACT) be abridged to 9 July 2009.
2. The fifth and sixth counts of the indictment be severed from the first, second, third and fourth counts.

1. The accused, Edwin Bobby Mack, has been arraigned before this court on an indictment containing six counts, one of which is in the alternative to another. Just prior to trial, the accused applied to sever all but one of the counts from the indictment.
2. The indictment signed on 14 October 2008 contains the following counts:

The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT on the 19th day of February 2008 at Canberra in the Australian Capital Territory EDWIN BOBBY MACK assaulted Vidya Nair and occasioned to her actual bodily harm.

SECOND AND IN THE ALTERNATIVE TO COUNT ONE THAT on the

COUNT 19th day of February 2008 at Canberra aforesaid EDWIN BOBBY

MACK assaulted Vidya Nair.

THIRD AND FURTHER THAT on the 24th day of March 2008 at Canberra

COUNT aforesaid EDWIN BOBBY MACK assaulted Vidya Nair.

FOURTH AND FURTHER THAT on the 13th day of April 2008 at Canberra

COUNT aforesaid EDWIN BOBBY MACK assaulted Vidya Nair.

FIFTH AND FURTHER THAT between the 3rd day of June 2008 and the

COUNT 6th day of June 2008 at Canberra aforesaid EDWIN BOBBY MACK

engaged in sexual intercourse with Vidya Nair without her consent,

knowing that she had not consented or reckless as to whether she had

consented.

SIXTH AND FURTHER THAT between the 3rd day of June 2008 and the

COUNT 6th day of June 2008 at Canberra aforesaid EDWIN BOBBY MACK

assaulted Vidya Nair.

3. An application in proceedings, required to bring this matter before the court (rr 4751, 4753 of the Court Procedures Rules 2006 (ACT)), was filed on 9 July 2009 and returnable on 10 July 2009. The rules require such an application to be made 14 days prior to trial and the trial was scheduled to commence on 20 July 2009. An application made too close to the trial can lead to the vacation of the trial date which can be disruptive and distressing to the accused, any complainant and the witnesses, not to mention the problems to court listings. In any event, as no objection was taken by the prosecution, I heard the application and am prepared to abridge the time for it.
4. The application sought the following substantive orders:

1. That the Counts in the Indictment dated 4 [sic] October 2008 following Count 1 be severed from the Indictment;
2. In the alternative that the Indictment dated 4 [sic] October 2008 be stayed as being oppressive.

5. It appeared to have been prepared with less than the care one would have ordinarily expected. The incorrect date of the indictment could be excused as a regrettable typographical error but it is hard to see how the first order could be likely to be successfully sought, at least in its present form, given that the second count is expressly an alternative to the first.
6. Such applications are not mere pieces of paper to get an advocate before the court to enable him or her to seek whatever orders seem available at the time. They are there to provide a fundamental part of the fair trial process, namely to give proper notice of what is being sought, a form of procedural fairness. It also has other benefits, such as permitting the court to know what is at issue and to arrange its business accordingly: see Fitzgerald v Director of Public Prosecutions and Ors (1991) 24 NSWLR 45 (at 47).
7. The written submissions handed up by Mr R Thomas, who appeared for the accused, did rectify that issue, but without seeking to amend the application. Those submissions made plain that what was now being sought was that:

Counts 1 and 2 should be severed from the Indictment and a separate trial ordered in respect of them.
Counts 3, 4, 5 and 6 should be severed and separate trials should be ordered in respect of each of those counts.
Alternatively, pursuant to section 269 of the Crimes Act 1900, count 5 should be severed from the Indictment and a separate trial ordered in respect of that count.

8. Presumably, the second order in the filed application was therefore abandoned. At least, I took it to be so. It is not clear why the orders as set out in the written submissions could not have been included in the application in proceedings.
9. The application was supported by an affidavit of the accused’s solicitor. This annexed a copy of the indictment. It did refer to it as dated 4 October 2008 even though the copy annexed was clearly dated 14 October 2008. It also annexed the case statement. This is an important document. While it does not absolutely bind the prosecution in the presentation of the case at trial, it is very helpful for the accused to know the way in which the prosecution puts its case and the general outline of how the evidence supports it. It is a mix between a pleading and an advice on evidence. It is particularly helpful to the court, especially in applications such as this one, so that the court can understand the case being put and give a context to the application.
The allegations in the prosecution case
10. The case statement was nearly six pages in length and it is not necessary to reproduce it in full for the purposes of these reasons, though I did read it carefully and had regard to it in coming to my views.
11. The complainant is the wife of the accused. They met in London and married in Canberra on 8 December 2007.
12. The allegations said to support the first two counts are that the two were driving to the accused’s business on 19 February 2008 when the complainant received a text message from her brother reminding her of her father’s birthday. The accused became angry and at the business they argued. They then returned to where the car had been parked, the argument continuing. The complainant finally climbed into the car and swiped her right hand near the accused’s face and the accused used his left elbow to hit her in the mouth, which bled. The fight continued and the complainant slapped the accused who then pushed the complainant’s head into the windscreen, resulting in a large bump to the upper left side of her head.
13. The allegations said to support the third count is that on 24 March 2008, the accused and complainant again argued at home. The accused left in his car; the complainant threw a nectarine at him which hit the car. The complainant then also climbed into the car and as the accused drove off, he used his left hand to try and push the complainant out of the car.
14. The allegations said to support the fourth count relate to an incident on 13 April 2008 when the complainant and accused were staying with the complainant’s mother at her home. The accused went out but later returned after being requested to do so. They went to get some medication for one of the accused’s children and on returning, though without any medication, an argument developed. The accused then grabbed the complainant, threw her against the wall and punched her in the back of the head.
15. The allegations said to support the fifth and sixth counts were said to have occurred on 4 or 5 June 2008. An argument developed about breakfast and the accused left after further argument. He later returned and began to kiss the complainant, who asked him to leave her alone. The accused then demanded oral sex and she refused. The accused then forced her to have vaginal intercourse. Later that evening the complainant and the accused argued further and then the accused went to leave but the complainant stood in front of the door to prevent him from going. The accused started kicking the door and the complainant decided to open it for him to stop him kicking it. While doing so, she put her hand on the door knob and the accused kicked it.
16. The evidence referred to in the case statement as supporting the case was the evidence of the complainant and photographs of damage to the door (referred to in count 6).
17. This is, of course, a relatively brief summary of the allegations but it is sufficient to give an understanding of the issues involved.
The contentions of the accused
18. Mr Thomas commenced his submissions by referring to a passage of the noted English academic and writer on criminal law, the late Professor Glanville Williams. In an article “The Count System and the Duplicity Rule” [1966] Crim LR 255, Professor Williams said (at p 255):

[t]he accumulation of charges tends to blacken the defendant in the eyes of the jury. They reason that a man charged with so many things must be guilty of something. Also, the accumulation of charges makes it almost impossible to give practical effect to the general rule of evidence that a man cannot be convicted of one offence by showing that he committed another. The judge may tell the jury that they should pay no attention to the evidence given on one charge when considering a different charge; but it is practically impossible for a lay tribunal to compartmentalise its mind in this way.

19. While these words do have force, the law has for long permitted more than one count to be joined in an indictment. There has, however, long been criticism of joinder. See, for example, Yates C, “How Many Counts to an Indictment” [1976] Crim LR 426, Tucker P “Joinder of Criminal Counts in Queensland – Principles, Policy and Conflict” [1998] 17 Aust Bar Rev 239, Farrin J “Rethinking Criminal Joinder: an Empirical Analysis of the Empirical Research and its Implications for Justice” (1989) 52 Law Cont Probl 325.
20. Mr Thomas also referred to what had fallen from Gibbs CJ in De Jesus (1986) 22 A Crim R 375 (at 378), namely that “[s]exual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard”.
21. Reference was made to ss 264(2) and 269 of the Crimes Act 1900 (ACT). The former is the basis of the application, for it permits severance where “[an accused] person ... may be prejudiced or embarrassed in his ... defence because of being charged with more than 1 offence in the same indictment”.
22. Section 269 permits joinder. It provides:

[i]n every case counts may be inserted in the same indictment, against the same person, for any number of distinct offences of the same kind, not exceeding 3, committed against the same person if no more than 6 months have elapsed between the first and the last of those offences.

23. Mr Thomas submitted that “of the same kind” requires a legal and not a factual connection. The correlative provision in NSW has been construed by the Court of Criminal Appeal of that State in Quinn (1991) 55 A Crim R 435 (at 440-2) to provide that the prosecution could include more than one count in an indictment. The accused may then call upon the prosecution to elect which on counts it wishes to proceed and the balance may be ordered to be tried separately, but where there are three or less counts, the prosecution cannot be put to that election.
24. Much of the submissions by Mr Thomas were directed to the cross-admissibility of evidence on the various counts. His submission was that where evidence on one count was not admissible on the other counts, then severance should be ordered. He did not, however, analyse the evidence in detail to show how it would be inadmissible. He did submit that it would be tendency evidence and be subject to s 101 of the Evidence Act 1995 (Cth). See [28] below.
25. He also relied on a number of statements which particularly referred to the position of sexual offences. For example, he noted the comment of Callaway JA in Bullen  (1998) 102 A Crim R 74 (at 80):

...it has never been the law that separate trials are ordered because evidence on one count is inadmissible on another. The true position was, and remains, that where evidence on one count is admissible on another, there is no point in ordering separate trials: See De Jesus [at 390] per Dawson J. The prejudice to the accused must usually be borne and mitigated, so far as possible, by appropriate directions to the jury. The significance of evidence on one count being inadmissible on another count is that it makes it practicable to order separate trials if there is a reason to do so. The reason is not the inadmissibility of the evidence but, in the case of sexual offences, the prejudice to the accused coupled with a doubt about the efficacy of any warning against misuse of the evidence.

26. Mr Thomas also relied upon what fell later from his Honour (at 83):

...although criminal trials are generally conducted on the assumption that a jury will comply with the judge’s direction, it is acknowledged in the authorities that warnings about propensity evidence are not always effective. A blind and unquestioning faith in the efficacy of judicial warnings would lead to the conclusion that severance should never be ordered on account of prejudice, because any prejudice at all could be overcome by judicial instruction. No one supposes that that is so.

27. Mr Thomas further relied, as did Mr J Lundy, who appeared for the prosecution, on the guidance provided by his Honour (at 84):

[s]ome guidance must, however, be essayed. I would venture the following:

1. A presentment should always be severed where that is both desirable and practicable in order to ensure a fair trial. It is for defence counsel to persuade the judge that that is so. In that respect sexual offences are no different from other offences.
2. One aspect of a fair trial is the taking of reasonable steps to prevent a jury from misusing evidence. That is not limited to propensity evidence and again is not peculiar to trials of sexual offences. See, for example, Smart especially at 283 and 289; 194-195, 196-197.
3. It is usually to be assumed that the jury will comply with any directions they are given by the judge. A fair-minded lay observer takes that very factor into account in considering whether a trial is fair: compare Webb [1994] HCA 30; (1994) 181 CLR 41 at 55; [1994] HCA 30; 73 A Crim R 258 at 266.
4. There are nevertheless cases where the risk of prejudice is unacceptable. It will often be found that that is so in the case of offences of an unnatural character or offences that arouse strong emotions or excite revulsion.
5. There is also a greater risk that a direction will be ineffectual if evidence in relation to one complainant is probative in relation to another but either the Crown does not rely on it for that purpose or the judge rules that it is inadmissible because of prejudice.

28. Further submissions were made by Mr Thomas on the need for cross-admissibility of evidence in relation to each of the counts, though Mr Thomas did specifically draw my attention to the following comments of Eames JA in R v CHS [2006] VSCA 19; (2006) 159 A Crim R 560 (at 575-6): 

[w]here evidence on one count has relevance in proof of another count, beyond showing mere criminal propensity, then it would be admissible on a separate trial of the other count, so there would be no point in ordering separate trials. Where the evidence as to one count is not admissible on another then the exercise of the discretion is made against the background that it is practicable to order separate trials, but it nonetheless remains for the applicant to satisfy the judge that there is a reason to order severance. The mere fact that the evidence on one count is inadmissible on another does not determine the question of severance; the judge must consider the prejudice to the accused which will arise and assess whether that prejudice can be removed by an appropriate direction to the jury against misuse of the evidence on one count in proof of another.

29. Mr Thomas rightly pointed out that where cross-admissibility was important, the nature of the use to which the evidence was to be put was also important. If, for example, it was tendency evidence, then it had to meet the tests set out in ss 97 and 101 of the Evidence Act 1995 (Cth). These sections relevantly provide

97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
...

101. Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

30. I was not informed whether a notice under s 97 had been served or not. Further, Mr Thomas made no specific submissions about either the probative value of any of the evidence on the various counts nor of its comparative prejudicial effect save insofar as he referred to the comments about the particular nature of cases of a sexual nature.
The contentions of the prosecution
31. Mr Lundy submitted that the counts could all be tried together and noted that the applicant for severance bears the burden of satisfying the court that severance should be ordered. He referred to the comments by Callaway JA in Bullen referred to above (at [26] - see guideline 1 there reproduced) and to Taipavalu (2002) 130 A Crim R 513 (at [8]) to the like effect. I am not sure that this is a fair use of what Sully J said in Taipavalu, however, for his Honour was there referring to the burden of proof in seeking leave to appeal; that is not the same thing necessarily as the burden on the applicant for severance.
32. Mr Lundy referred me, also, to the speech of Lord Taylor of Gosforth in R v Christou [1997] AC 117 where (at 129) his Lordship said about the factors to be taken into account in an application to sever counts in an indictment:

[t]hey will vary from case to case, but the essential criterion is the achievement of a fair resolution of the issues. That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are: how discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judge’s directions of law are applied faithfully. Experience shows, as for example in Reg v Blackstock, 70 Cr App R 34 and in the instant case, that juries, where counts are jointly tried, do follow the judge’s directions and consider the counts separately.

33. He noted that these comments had been cited with approval in R v KRA [1999] VSCA 157; [1999] 2 VR 708 (at 714) and R v GAE [2000] VSCA 18; [2000] 1 VR 198 (at 215). They were also adopted by Connolly J in R v McBride [2007] ACTSC 8 (at [15]).
34. It has to be said, however, as Callaway JA observed in R v TJB [1998] 4 VR 621 (at 626), that amendments to the Crimes Act 1958 (Vic) in 1997 had substantially changed the law in that jurisdiction by amendments that were intended to “overrule” De Jesus. His Honour further observed that the House of Lords in R v Christou had reviewed De Jesus and Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 and Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 and had rejected their application in England. In the light of this, one must use statements in R v Christou and in post-1997 Victorian authority with some caution.
35. Mr Lundy submitted that the counts on the indictment were properly joined because they all related to the same complainant and occurred over a relatively short space of time. This submission appears to rely on the test that the offences form or are part of a series of offences, though he did not analyse that concept.
36. He further submitted that evidence in one count would be relevant to the others. He did not, however, express the precise way in which that would be so in each case. It was not clear whether the evidence was, as suggested by Mr Thomas, to be tendency evidence, or whether it was of another admissible kind such as relationship evidence, context evidence or something else. It is important that the use for which such evidence is to be put is clearly identified for that brings into play provisions such as the notice provisions in s 97 and the limiting provision in s 136 of the Evidence Act 1995 (Cth).
37. He also relied on a summary of the relevant factors which he submitted had been identified by King CJ in R v Collie, Kranz and Lovegrove [1991] SASC 2996; (1991) 56 SASR 302, when his Honour “discussed ‘strong reasons of principle and policy’ for not ordering a separate trial”. That case was, of course, a case about the joint trial of accused persons charged with committing other crimes jointly and the issues there are somewhat different to what is at issue here. Nevertheless, there are important policy reasons for considering trials of multiple counts on an indictment. The passage to which I believe Mr Lundy was referring was an extract cited by King CJ from the decision of the Full Court of the Supreme Court of Victoria in R v Demirok [1976] VR 244, a case which did involve the joinder of counts rather than joinder of accused. The Full Court said (at 254):

[t]he matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.

38. Mr Lundy submitted that, having regard to these matters and to the fact that the counts relate to the same complainant, and occurred over a relatively short period (a period less than that referred to in s 269 of the Crimes Act 1900 (ACT)) and “in the context of the relationship between the accused and the complainant”, the counts should not be severed.
Joinder of counts
39. The history of the joinder of counts on an indictment is an interesting one. It is not necessary to trace it here; it is set out briefly in De Jesus in the judgment of Dawson J (at 388-9). See also Weinberg M, “Multiple Counts and Similar Fact Evidence” in Campbell E and Waller L, Well and Truly Tried (Law Book Co, 1982) pp 250-270, and Ross D, “Joinder of Counts Against One Accused” [2004] 9(1) Deakin LR 197. In any event, the trial of this matter is to commence on 20 July 2009 so I do not have the advantage of being able to recount the history though it sets a context to the current law nor to analyse the current law in any detail.
40. There are a number of reasons favouring joinders of counts in an indictment. These include fairness to an accused who may be quite disadvantaged by multiple trials, or the prosecution “splitting its case” (Connelly v Director of Public Prosecutions (UK) [1964] AC 1254 (at 1296, 1359-60, 1367-8), fairness to witnesses who may have to give evidence on many occasions and be cross-examined, fairness to the community when the fair presentation of a case is made at trial. There is also, of course, the advantage to the justice system in avoiding inconsistent verdicts and in expeditious finality to litigation and more so, of course, when lists are already long, perhaps too long.
41. Similarly, there are good reasons against joinder of counts in an indictment. It seems likely that convictions are more common with multiple count indictments, “overloading” an indictment can be oppressive, and an accused person suffers the prejudice of having other discreditable conduct before a jury when otherwise such evidence might well be excluded. The community also demands a fair trial.
42. The law seeks to balance these interests and has evolved rules and practices to do so. This has evolved over time and especially as the law of evidence has changed, particularly with the introduction of the Evidence Act 1995 (Cth).
43. The statute law in the Territory is sparse. There is a real need for attention to be given to a proper criminal procedure act so that issues such as this can be clarified so far as is possible.
44. In addition to s 269 of the Crimes Act 1900 (ACT) (as to which see [21] above) there are two other relevant provisions of that Act, namely s 264(2) and s 434B(1). They respectively provide:

264. Orders for amendment of indictment, separate trial and postponement of trial

...

(2) If, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his or her defence because of being charged with more than 1 offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for 1 or more offences charged in an indictment, the court may order a separate trial of a count or counts of the indictment.

...
434B Joinder of charges
(1) Charges against the same person for any number of offences against the same provision of a territory law may be joined in the same information or summons if the charges are founded on the same facts or form, or are part of, a series of offences of the same or a similar character.

45. This latter provision is much narrower than the common form provision, for it refers to “the same provision of a territory law”, a limitation that is not to be found in other State legislation. It is in the same terms as s 4K(3) of the Crimes Act 1914 (Cth) which was held in Cady v Smith (1993) 117 FLR 132 to mean exactly what it says, namely the one statutory offence provision.
46. The interaction between ss 269 and 434B of the Crimes Act 1900 (ACT) has not been the subject of any judicial consideration as far as I can see. This uncertainty is another reason for there to be reform through a criminal procedure act. Nevertheless, it is common for indictments presented to include a variety of counts which are appropriately connected but which are not based on the one statutory provision. See, for example, R v Kristiansen [2008] ACTSC 110.
47. In the exercise of the discretion under s 264(2) of the Crimes Act 1900 (ACT), the test is whether the accused would be prejudiced or embarrassed in his defence, or for some other reason. The accused bears the onus of proof in such an application: Bikic [2000] NSWCCA 106; (2000) 112 A Crim R 300 (at 305).
48. One clear ground on which an application to sever joined counts will ordinarily be refused is where the evidence on one count is admissible on the other or others. Nevertheless, the High Court, though perhaps holding it to be a necessary precondition to joined counts in sex cases, has not stated definitively that separate trials of separate counts must always be ordered if the evidence on each count is not cross-admissible.
49. It is common, however, for that issue to be of considerable importance in the decision of whether to sever counts or not. That has perhaps permitted a wider number of joint trials, because of the now more numerous ways in which evidence of what might be called discreditable conduct may be admitted. When such evidence was only admissible as similar fact evidence, with the high threshold requirement of striking similarity, the other considerations referred to in the cases may have also played a greater role.
50. Now, where under the Uniform Evidence Act, tendency evidence is admissible if significantly probative to an extent that substantially outweighs any prejudicial effect, the issue is less constricted. In addition, evidence is admissible to explain the relationship between accused and complainant, to reveal a motive for the crime and to put other relevant evidence in context. As a result, there is rarely a need to travel outside the question of whether the evidence adduced under the other counts is cross-admissible when considering applications for severance. If the evidence is cross-admissible, there is no point in severing the counts, as Eames JA pointed out in R v CHS, as cited above (at [27]). That evidence could, in any event, almost certainly be admitted as uncharged acts in the permitted trial.
Consideration
51. It seems to me that the first four counts can all be heard together. They are clearly of the same kind. The evidence of one would clearly be admissible in respect of the others. They would show, for example, that each occasion of violence is not isolated and they would give context to the offences. They would also show the nature of the relationship between the accused and the complainant. If they were sought to be admitted as tendency evidence then the provisions of ss 97 and 101 of the Evidence Act 1995 (Cth) would need to be considered and met.
52. While to some extent distant in time from each other, though perhaps not by reference to s 269 of the Crimes Act 1900 (ACT), the events in each of these counts do seem to amount to a series, though I would not base my decision solely on that ground. At least so far as the second, third and fourth counts are concerned, they are also offences against the same provision of the Territory law.
53. The same cannot be said of the fifth count. While there is always present in non-consensual intercourse an element of violence, it was not an act of violence of the same kind as in the other counts. It is also not the case that it is the same kind of offence. That is not to say that sexual offences and non-sexual violence offences could never be tried together, but the specific circumstances here are not of that kind.
54. Again, there is no compelling reason made out – indeed none was really offered – as to why the evidence on the fifth count would be admissible on the other counts. I do not say that it could not be admissible if a proper case was made out, but none was submitted to me.
55. As against that, there is the inevitable prejudice of the serious and particularly discreditable allegation in itself. In addition, while the violence disclosed in the other counts may be admissible in support of the fifth count, the evidence would not be likely to be admissible the other way.
56. I have also given anxious consideration as to whether the sixth count should be severed from the other four counts. It has a clear affinity with the first four counts. It is, however, at least temporally and perhaps more intimately connected with the fifth count. I see no reason why the fifth and sixth counts could not be tried together.
Order
57. Accordingly, I propose to order that the fifth and sixth counts of the indictment be severed from the first, second, third and fourth counts. It is a matter for the prosecution whether it wishes to proceed with the first four counts at trial or the fifth and sixth counts.
58. I shall hear the parties as to any consequential orders or directions if any are required.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 16 July 2009

Counsel for the Crown: Mr J Lundy
Solicitor for the Crown: Director of Public Prosecutions (ACT)
Counsel for the applicant Mr R Thomas
Solicitor for the applicant: S & T Lawyers
Date of hearing: 10 July 2009
Date of judgment: 16 July 2009