De Jesus v The Queen [1986] HCA 65

High Court of Australia Gibbs CJ Mason, Brennan, Deane and Dawson JJ De Jesus v The Queen [1986] HCA 65

ORDER Application for special leave to appeal granted Appeal allowed

Cur adv vult

12 November 1986 Gibbs CJ.

The applicant was tried on indictment in the Supreme Court (WA) on five counts, namely:

(1) that on 30 April 1985 at Fremantle, he unlawfully detained one Paula Cordisco in a toilet against her will,

(2) that on 30 April 1985 at Fremantle he committed rape upon the said Paula Cordisco,

(3) that on 31 May 1985 at Hamilton Hill, he unlawfully deprived one Maree Fumo of her personal liberty by carrying her away in a motor vehicle against her will,

(4) that on 31 May 1985 at Hamilton Hill, he unlawfully and indecently assaulted the said Maree Fumo and

(5) that on 31 May 1985 he committed rape upon the said Maree Fumo.

The charges of unlawful detention, unlawful deprivation of liberty and unlawful and indecent assault arose out of the circumstances in which the alleged rapes were respectively committed and do not require separate discussion. For the sake of simplicity, I shall discuss the matter as though two charges were joined in the indictment, one of raping Paula Cordisco at Fremantle on 30 April 1985 and the other of raping Maree Fumo at Hamilton Hill on 31 May 1985.

Section 585 of the Criminal Code WA provides that, except as thereinafter stated, an indictment must charge one offence only, and not two or more offences, but contains a proviso to the effect (inter alia) that

when several distinct indictable offences form or are a part of a series of offences of the same or a similar character charges of such distinct offences may be joined in the same indictment against the same person. The section goes on to provide that if it appears to the court that the accused person is likely to be prejudiced by the joinder, the court may require the prosecution to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately. The words "form or are a part of a series of offences of the same or a similar character" appeared in r 3 of the rules in the First Schedule to the Indictments Act 1915 UK. That statute has provided a model for the provisions in force in some of the Australian States, but it has not been slavishly followed: for example, s 4 of the Indictments Act gave a general authorisation for the joinder of charges, whereas s 585 of the Criminal Code forbids joinder subject to exceptions.