White (a pseudonym) v The King

[2022] VSCA 278

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Conviction
4. › Miscarriage of justice
5. › Error or irregularity in trial
6. › Impermissible joinder of charges
7. › Whether charges were 'related offences'
8. › Whether founded on same facts or forming series of same or similar character
9. › Criminal Procedure Act 2009 (Vic), ss 159(3)(c), 170, 193, 276(1), Sch 1 cl 5(1)
1. Criminal Law
2. › Indictment
3. › Joinder of charges
4. › Related offences
5. › Whether mandatory statutory requirement can be waived by accused
6. › Whether accused can consent to joinder of unrelated offences
7. › Criminal Procedure Act 2009 (Vic), s 159(3)(c), Sch 1 cl 5(1)
1. Criminal Law
2. › Appeal
3. › Conviction
4. › Miscarriage of justice
5. › Defence counsel's forensic decisions
6. › Whether acquiescence in impermissible joinder was rational forensic decision
7. › Whether forensic advantage outweighed prejudicial effect
8. › TKWJ v The Queen (2002) 212 CLR 124
1. Criminal Law
2. › Practice and procedure
3. › Trial judge's role
4. › Whether trial judge may press prosecution to join charges
5. › Limits of judicial intervention in prosecution decisions

Quick Take

Under the Criminal Procedure Act 2009 (Vic), the requirement that only charges for 'related offences' be joined in a single indictment is mandatory and cannot be waived by the accused's consent or acquiescence. Charges involving different complainants where the offending is temporally disconnected (five years apart), involves different relationships (sibling vs girlfriend), and different factual circumstances (incestuous compulsion vs consensual underage sexual activity) are not 'related offences'. A collusion defence can be advanced in a trial of one complainant's charges without joining the other complainant's charges. [name withheld] left open whether there may be any circumstances in which unrelated offences could be joined.