Joinder has two separate meanings: - When an indictment contains more than one count each for a separate offence, the counts are said to be joined. - Where more than one accused is charged on the same indictment, the accused are said to be joined. Their trial is a joint trial. In _R v Harris_ [1969] 3 WLR 745; [[1969] 2 All ER 599; 53 Cr App R 376](https://anzlaw.thomsonreuters.com/Link/Document/FullText?findType=Y&serNum=1969019514&pubNum=0004660&originatingDoc=I0de700d60b3011ea83b0ac48dfa2554a&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=657827d7fd754225979e92fc273c02ca&contextData=\(sc.Default\)) it was held that a separate count of indecent assault should not have been joined with a count of buggery where they were both arising from the same incident to the same complainant. In [_R v Kray_ [1970] 1 QB 125; [1969] 3 All ER 941; 53 Cr App R 569](https://anzlaw.thomsonreuters.com/Link/Document/FullText?findType=Y&serNum=1969019520&pubNum=0003898&originatingDoc=I0de700d60b3011ea83b0ac48dfa2554a&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=657827d7fd754225979e92fc273c02ca&contextData=\(sc.Default\)) Widgery LJ said (at 130; 944; 574): > It may be true that the word “series” is not wholly apt to describe less than three components, but so to limit its meaning in the present context would produce the perverse result that whereas three murders could be charged in the same indictment, two could not. The construction of the rule has not been restricted in this way in practice during the 50 years which have followed the passage of the Act and it is too late now to take a different view. In [_De Jesus v The Queen_ (1986) 61 ALJR 1; 22 A Crim R 375; 68 ALR 1](https://anzlaw.thomsonreuters.com/Link/Document/FullText?refType=U2&serNum=1986182807&pubNum=0005147&originationContext=document&transitionType=DocumentItem&ppcid=657827d7fd754225979e92fc273c02ca&contextData=\(sc.Default\)) Dawson J said (at 9; 15; 389): > (I)t is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a “series” without straining the word beyond the meaning which it is reasonably capable of bearing. # Founded on the same facts In [_R v Barrell and Wilson_ (1979) 69 Cr App R 250](https://anzlaw.thomsonreuters.com/Link/Document/FullText?findType=Y&serNum=1979025304&pubNum=0004705&originatingDoc=I0de700d60b3011ea83b0ac48dfa2554a&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=657827d7fd754225979e92fc273c02ca&contextData=\(sc.Default\)) Shaw LJ said (at 252–253): > The phrase “founded on the same facts” does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin. # The potential prejudice against the accused In [_Castro v The Queen_ (1881) 6 App Cas 229](https://anzlaw.thomsonreuters.com/Link/Document/FullText?findType=Y&serNum=1881185266&pubNum=0004907&originatingDoc=I0de700d60b3011ea83b0ac48dfa2554a&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=657827d7fd754225979e92fc273c02ca&contextData=\(sc.Default\)) (HL) Lord Blackburn said (of joinder) (at 244): > [I]t was frequently not fair to do it, because it might embarrass a man in the trial if he was accused of several things at once, and frequently the mere fact of accusing him of several things, was supposed to tend to increase the probability of his being found guilty, as it amounted to giving evidence of bad character against him. In [_DPP v Boardman_ [1975] AC 421; [1974] 3 All ER 887; 60 Cr App R 165](https://anzlaw.thomsonreuters.com/Link/Document/FullText?findType=Y&serNum=1974027103&pubNum=0004651&originatingDoc=I0de700d60b3011ea83b0ac48dfa2554a&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=657827d7fd754225979e92fc273c02ca&contextData=\(sc.Default\)) (HL) Lord Cross said (at 459; 911; 186–187): > If the charges are tried together it is inevitable that the jurors will be influenced, consciously or unconsciously, by the fact that the accused is being charged not with a single offence against one person but with three separate offences against three persons. It is said, I knew, that to order separate trials in all these cases would be highly inconvenient. If and so far as this is true it is a reason for doubting the wisdom of the general rule excluding similar fact evidence. But so long as there is that general rule the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the admissible evidence by trying the charges together. # Similar circumstances In [_R v Kray_ [1970] 1 QB 125; [1969] 3 All ER 941; 53 Cr App R 569](https://anzlaw.thomsonreuters.com/Link/Document/FullText?findType=Y&serNum=1969019520&pubNum=0003898&originatingDoc=I0de700d60b3011ea83b0ac48dfa2554a&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=657827d7fd754225979e92fc273c02ca&contextData=\(sc.Default\)) (CACrD) Widgery LJ said (at 130–131; 944; 574): > [O]ffences cannot be regarded as of a similar character for the purposes of joinder unless some _sufficient nexus_ exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases. In [_Ludlow v Metropolitan Police Commissioner_ [1971] AC 29; [1970] 1 All ER 567; (1970) 54 Cr App R 233](https://anzlaw.thomsonreuters.com/Link/Document/FullText?findType=Y&serNum=1970020610&pubNum=0004651&originatingDoc=I0de700d60b3011ea83b0ac48dfa2554a&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=657827d7fd754225979e92fc273c02ca&contextData=\(sc.Default\)) (HL) Lord Pearson said (at 39; 573; 242): > I think the proper conclusion to be drawn from the judgments as a whole is that both the law and the facts have been and should be taken into account in deciding whether offences are similar or dissimilar in character. > In my opinion, however, it is important to notice that there has to be a _series_ of offences of a similar character. For this purpose there has to be some nexus between the offences … Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series. In [_De Jesus v The Queen_ (1986) 61 ALJR 1; 68 ALR 1; 22 A Crim R 375](https://anzlaw.thomsonreuters.com/Link/Document/FullText?refType=U2&serNum=1986182807&pubNum=0005147&originationContext=document&transitionType=DocumentItem&ppcid=657827d7fd754225979e92fc273c02ca&contextData=\(sc.Default\)) Dawson J (at 9; 15; 389) described Lord Pearson's last sentence as containing “an element of circumlocution”. His Honour said earlier: > (A)s a matter of construction the requirement in my view refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance. Thus the offences of rape are of the same kind and other offences of a sexual character, such as indecent assault, may be offences of a similar kind to rape. DPP v Iliopoulos (Ruling No 1) [2016] VSC 32 by Kaye, JA [at 94]: >[94] While the question of cross-admissibility is central to the issue of severance, nevertheless it is not decisive. If the evidence is not cross-admissible, the critical question, in each case, will be whether the admission of the evidence admissible on some of the charges joined in the indictment carries the risk of impermissible prejudice to the accused in respect of the trial of the other charges in respect of which it is not admissible.