Citation: R v Thomson; R v Dann [2002] NSWCCA 400
Court: NSW Court of Criminal Appeal
Date: 30 September 2002
Judges: Santow JA; Hidden J; Adams J
Background
Two respondents were jointly charged by indictment on two counts pleaded in the alternative. The first count alleged that, on a specific date, they supplied heroin. The second count alleged that, over a later period, they had falsely confessed to owning that heroin with intent to pervert the course of justice.
The factual backdrop was distinctive. Police found heroin at a third party's home. Four months later, both respondents walked into a police station and handed over affidavits confessing ownership of the drugs. The Crown simultaneously regarded those confessions as suspicious and advanced them as the basis of the supply charge, while also prosecuting the respondents for making false confessions.
At first instance, Shadbolt DCJ ordered that the two counts be severed, concluding that presenting mutually exclusive charges to a jury was improper and created unacceptable difficulties with the burden of proof. The Crown appealed that severance order.
Legal Issues
- Whether an indictment may properly contain two counts that are mutually exclusive (that is, where proof of one necessarily disproves the other)
- Whether the trial judge had a proper basis to order severance of the counts before the prosecution case had concluded
- What conditions must be satisfied before mutually exclusive counts can lawfully remain joined in a single indictment
Decision
The Court of Criminal Appeal set aside the severance order and allowed the Crown's appeal. Santow JA, with Hidden J and Adams J agreeing, held that there is no rule of law preventing the inclusion of mutually exclusive counts in a single indictment. The court drew on the House of Lords decision in R v Bellman [1989] 1 AC 836, which had been followed in Australian jurisdictions, to confirm that proposition.
The court identified three conditions that must be satisfied to justify keeping mutually exclusive counts joined. First, the evidence must establish a prima facie case on both counts at the close of the prosecution case. Second, the evidence relevant to each count must be substantially similar, though not necessarily identical. Third, the trial judge must be able to give a direction that adequately removes the risk of the jury misunderstanding the logical implications of an acquittal on one count for the other.
Santow JA emphasised that at the pre-trial stage, when the severance application was made, it was not yet possible to determine whether those conditions would be satisfied. The appropriate point to assess severance, if at all, is at the conclusion of the prosecution's evidence. Ordering severance prematurely carried its own risks.
Hidden J acknowledged that Shadbolt DCJ's concerns about the Crown's course were entirely understandable, but noted that it was a course sanctioned by authority that had not been drawn to his attention. The Court made clear that the question was not whether the Crown's approach was unusual, but whether it was lawfully permitted.
Orders Made
- The order made by Shadbolt DCJ on 22 May 2002, that the counts in the indictment be severed, was set aside.
- No order as to costs.
Key Takeaways
- No rule of law in NSW (or in English and Australian law generally) prohibits a single indictment from containing mutually exclusive counts, provided certain conditions are met.
- Three cumulative conditions govern the legitimacy of joined mutually exclusive counts: a prima facie case on both counts at the close of the prosecution case; substantially similar underlying evidence; and the availability of a jury direction that addresses the logical relationship between the counts.
- The correct time to assess whether severance is warranted is at the conclusion of the prosecution case, not at an interlocutory stage before evidence has been tested.
- In allowing the appeal, the Court of Criminal Appeal confirmed that R v Bellman [1989] 1 AC 836 is persuasive authority in NSW, and that its approach had been followed in Queensland and Western Australia.
- A trial judge's intuition that the Crown's conduct in advancing contradictory charges is incongruous does not, without more, constitute sufficient grounds to order severance.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 64(2)(a)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
Cases
- R v Bellman [1989] 1 AC 836 (House of Lords)
- R v Collins [1996] 1 Qd R 631
- R v Healy (1995) 15 WAR 104
- Regina v Paul Maharaj (NSWCCA, 14 December 1995, unreported)