It has long been the case in criminal law that only one criminal charge ought to be contained on an indictment. There is good reason for this. In a general sense, the law recognises the highly prejudicial nature of placing before a jury an allegation that the defendant is accused of criminal wrongdoing(s) on another occasion. The danger is that a jury’s assessment of one allegation would be clouded by the allegations pertaining to another. Or, in other words, there is a real likelihood evidence in respect of one allegation may wrongly be regarded by a jury as being more probative of the accused’s guilt than it deserves to be when considering another allegation.
In Queensland this protection is captured by section 567(2) of the Criminal Code. It provides that only one count should be contained on an indictment. More than one count may be joined under s 567(2) only if one of the following preconditions are met:
(a) “founded on the same facts”;
(b) “are, or form part of, a series of offences of the same or similar character”; or
(c) are or form a part of “a series of offences committed in the prosecution of a single purpose”.
Themes have emerged from appellate decisions about this issue.
Founded on the same facts is perhaps the most self-explanatory of the three possible limbs of joinder. The allegations must involve a common factual origin but it is not necessary for the offences to have arisen contemporaneously or to involve precisely the same facts. All that is necessary is for them to be traceable, either in time, place or circumstance, to common events.[1]
When considering whether counts form part of a series of offences of the same or similar character, the Court’s consider the ‘time, place and the other circumstances of the offences as well as the legal character or category are all factors which are considered for the purposes of seeing whether the necessary features of similarity and connection are present’.[2] But, it is not sufficient that the allegations be of similar character only, there must be something tying together the allegations that establishes them as a ‘series’.[3]
A single purpose may be alleged ‘sexual satisfaction’ or ‘drug trafficking’. The Courts must be cautious when concluding that multiple counts involve a series of offences committed in the prosecution of a single purpose.[4]
It is clearly a finely balanced exercise, and one Prosecutors must consider prior to the presentation of any indictment in the higher courts. Defence lawyers ought to also be guarded against improperly joined counts so as to prevent their clients from receiving an unfair trial.
[1] R v Collins; ex parte Attorney-General [1994] QCA 467
[2] R v Flynn [2010] QCA 254.
[3] R v Cranston [1998] 1 Qd R 159.
[4] R v Crowden and Lambert [2021] QSCPR 8, where Callaghan J considered the term “purpose”.