Area of Law – Sexual Offences

An Article about separate trials in sex case

Separate trials in sex cases
In a sexual offences case it is presumed that the counts/charges will be heard at the same time. That is that the normal issues about separate trials and severance of offences is dealt with on the presumption that they will he triable together.

The Crimes Act indicates the following in relation to separate trials in sex cases:

“(3) Where 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 defence by reason of being charged with more than one offence in the same presentment 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 a presentment the court may order a separate trial of any count or counts of such presentment.

(3AA) Despite subsection (3) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together.

(3AB) The presumption created by subsection (3AA) is not rebutted merely because evidence on one count is inadmissible on another count.”

Winneke P considered the issue in Papamitrou:

This application brings into focus, once again, the problems confronted by trial judges in this State when presentments are filed containing multiple counts alleging sexual offences against different victims. There is no doubt that such presentments are properly formed, in the sense that they comply with the Presentment Rules found in the 6th Schedule to the Crimes Act 1958.

The issue, which invariably arises, is whether the interests of fairness dictate that the counts should be severed; and, if not, what directions should be given by the judge to secure a fair trial for the accused. What is fair and proper must depend entirely upon the circumstances of the particular case, and particularly the issues which arise in that case.

… where multiple sexual offences against more than one complainant have been properly joined in the one presentment in accordance with the Presentment Rules contained in the 6th Schedule to the Crimes Act, the discretion to sever, at least in this State, is not necessarily dictated by ‘mutual admissibility’ or the lack thereof. The amendments to s 372 of the Crimes Act made by the Crimes (Amendment) Act 1997 (to which I have referred in [2] and [3] above) were introduced to ensure that trial judges carefully considered whether severance was necessary even where the judge concluded that the evidence of complainants was not ‘cross-admissible’.

As this court pointed out in R v KRA, these amendments make it appropriate that severance of the presentment:

‘… should be approached on the basis that the rule of law or practice which had hitherto existed in this State had been, and was intended to be, modified by these amendments in favour of the more pragmatic approach adopted in the case of Christou.’

In particular, the court pointed out that the trial judge should consider whether potential prejudice could be overcome by appropriate directions, bearing in mind that juries can be trusted to heed the directions of the trial judge.

Nevertheless, it seems to me to remain a sound approach in cases such as the present for the trial judge, in exercising the discretion given by s 372(3), to determine whether the evidence of the several complainants is cross-admissible because such a determination will – in most cases – be a powerful factor influencing the discretion. The capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion; and the more complainants there are whose evidence is not admissible in the trials affecting other complainants, the more difficult it will be for adequate directions to be given by the trial judge to avoid prejudice occurring to the accused. To that extent, the views expressed by the High Court in De Jesus and Sutton (to which I have referred in [3]) will remain influential in this State

How that evidence can sometimes be used in a trial:

The probative value of the evidence of each complainant may lie not so much in a displaying a striking similarity system or pattern, but by virtue of there being underlying unity between the evidence of the various complainants. See R v Rajakaruna 2004 VSCA 114.

R v INS [2009] VSCA 61


Date: 09/01/2009