26.129 Sexual assault cases—especially those within a family violence context— commonly involve multiple incidents and multiple complainants. The following discussion deals with situations where there are two or more complainants who have allegedly been sexually assaulted by the same defendant—for example, in a family context, a number of siblings may allege that a parent has sexually abused them.
26.130 In such situations, the prosecution is likely to make a pre-trial application to have the counts against the defendant heard in a joint trial, rather than separate trials. The defence, in contrast, is more likely to apply for separate trials for each offence. The power to order a joint trial is discretionary and is exercised in order to prevent prejudice to the defendant. There is no limit to the circumstances which will justify separate trials. However, two factors which have received detailed consideration by the High Court are: charges where evidence in relation to one count is not admissible in relation to another, but is prejudicial; and where the charges are for sexual offences.
26.131 The threshold question for holding a joint trial is whether or not each complainant’s evidence will be admissible in respect of the charges involving the other complainant or complainants (that is, whether such evidence is ‘cross-admissible’). Decisions to hold separate trials or refuse to admit relevant tendency or propensity evidence about a defendant’s sexual behaviour can be seen as barriers to the successful prosecution of sex offences.
26.132 Laws of evidence affecting the admissibility of tendency or coincidence evidence (under the uniform Evidence Acts), and as propensity or similar fact evidence at common law, are relevant in this context. The nature and admissibility of these kinds of evidence is discussed in detail in Chapter 27.
Implications of joint and separate trials
26.133 When deciding whether to order joint or separate trials, a trial judge needs to determine whether each complainant’s evidence will be cross-admissible. A possibility of prejudice to defendants is recognised to arise from joint trials, because jurors ‘might use evidence relating to an offence charged in one count to decide that the person has also committed a different offence, even though there may be insufficient evidence to support a conviction for the second offence’. It is commonly believed that jurors will ‘assume that past behaviour is an accurate guide to contemporary conduct, and knowledge of other misconduct may cause the jury to be biased against the accused’.
26.134 This view needs to be balanced against the research on juries that shows that a significant proportion of both jurors and jury-eligible citizens believe in various myths and hold a range of prejudices and misconceptions about women and children who report sexual assault.
26.135 Separate trials can be considered to create an artificial individualised context in which the charges relating to each complainant are heard separately rather than in context. This is particularly the case where complainants come from the same family. The jury may not know that other children in the family have also made similar complaints. The prosecution case ‘will be considerably weakened’, including in family violence contexts. Separate trials are said, therefore, to ‘confer a significant tactical advantage on the accused’.
The defendant will be able to conduct his defence in each trial in isolation from the other charges and will be able to more convincingly argue that each complainant has fabricated her/his evidence due to lack of corroborating evidence from other victims, thus increasing the likelihood of acquittal.
A presumption of joint trial?
26.136 In 1997, Victoria established a presumption in favour of joint trials in sexual offence cases. The presumption is now located in s 194(2) of the Criminal Procedure Act 2009 (Vic), which provides that:
(2) … if in accordance with this Act 2 or more charges for sexual offences are joined in the same indictment, it is presumed that those charges are to be tried together.
(3) The presumption created by subsection (2) is not rebutted merely because evidence on one charge is inadmissible on another charge.
26.137 In 2008, South Australia introduced a similar presumption. The South Australian provision modifies rules for the admissibility of evidence in sexual offence cases, in response to common law restrictions on propensity and similar fact evidence.
26.138 In Western Australia, the court has a discretion to order separate trials—otherwise the decision as to whether there will be a joint trial is that of the prosecution. The Criminal Procedure Act 2004 (WA) states that a court can only order separate trials if satisfied that there would be a likelihood of prejudice to the accused by the joinder of two or more charges. However, the court does not need to automatically order separate trials of particular offences simply because they are of a particular nature or because evidence in relation to some of the charges is not admissible in relation to others. Under s 133(5), it is open to the court ‘to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury’.
26.139 At the same time, s 31A was inserted into the Evidence Act 1906 (WA) to deal specifically with the problems associated with admitting propensity evidence in a joint trial. These modifications of evidence law, and those in other jurisdictions, are discussed in more detail in Chapter 27.
26.140 NSW and Queensland have considered—but specifically recommended against—the adoption of a presumption of joint trial due to concerns that juries may improperly use evidence in relation to one count when considering another count. As discussed below, there are different views on the extent to which this concern may be able to be addressed through appropriate directions to the jury.
26.141 In the Consultation Paper, the Commissions proposed that federal, state and territory legislation should create a presumption of joint trial when two or more charges for sexual offences are joined in the same indictment and provide that this presumption is not rebutted merely because evidence on one charge is inadmissible on another charge. This wording closely followed that of the Victorian provision.
Submissions and consultations
26.142 A number of stakeholders agreed that legislation should provide for a presumption of joint trial. Dr Anne Cossins, for example, submitted that there are ‘good public interest reasons’ for joint trials, particularly given the frequency and serial nature of sex offending:
[w]hile trial judges must consider the accused’s right to a fair trial when considering whether to order joint or separate trials, legislation governing this procedural issue shows that the decision is not black or white. In other words, it is possible to hold a joint trial that does not ‘prejudice or embarrass’ an accused’s defence.
26.143 The DPP NSW strongly supported the proposal in the Consultation Paper, despite the rejection of this idea in 2005 by the NSW Sexual Offences Taskforce. The DPP NSW noted that ‘the separation of trials can weaken the case to the point that there is no prospect of conviction’. Further, if trials are separated, complainants may have to give evidence in more than one trial and their evidence needs to be confined when it is not their own complaint. Severance of trials ‘increases the likelihood of inadmissible evidence being given inadvertently and possibly aborting the trial’. The DPP also referred to the negative effects on complainants that may arise as a result of uncertainty about how trials are to proceed.
When the decision is finally made to proceed on separate indictments either by the court or the prosecutor, it can be devastating for complainants. This is probably a significant factor contributing to attrition during the prosecution phase of the case.
26.144 Women’s Legal Services NSW (WLS NSW) stated that separating trials means that juries ‘do not get a full picture’ of the context and circumstances of the alleged offence and ‘is particularly difficult for child witnesses in child sexual assault matters and all witnesses/complainants in interfamilial matters’. WLS NSW supported the introduction of a presumption of joint trial based on the Victorian model.
26.145 Others argued against the introduction of any presumption of joint trial and considered jury directions unlikely to be effective in ensuring that evidence is not improperly taken into account by jurors. The Law Council, for example, submitted that where evidence is not cross-admissible, ‘the presumption should be that trials are separated’ to avoid the danger of unfair prejudice to the defendant.
26.146 NSW Public Defenders stated that ‘there can be no legitimacy in conducting joint trials in circumstances other than where the evidence in one charge is admissible on the other charge’. The Public Defenders also observed that any higher rate of conviction in trials where evidence is not cross-admissible could only result from, in effect, ‘endorsing the suspension of the rule of law—or hoping that juries will disregard judicial direction as to the evidence which may be taken into account by them in connection with each charge’.
26.147 The Time for Action report recommended that state and territory sexual assault legislation should be reviewed to ensure it ‘ceases the artificial separation of court hearings involving multiple victims of the same offender’.
26.148 In some cases, however, it is clear that the separation of court proceedings will be justified and not ‘artificial’. Even in those jurisdictions that have implemented a presumption of joint trial in sexual offence proceedings, some matters are still separated for valid reasons, notably the right of the defendant to a fair trial. It should be open to a court to order separate trials where evidence on one charge is inadmissible on another charge—for example, because its probative value is outweighed by the danger of unfair prejudice to the defendant. In a recent case involving consideration of the presumption of joint trial, the Victorian Court of Appeal noted that
[t]he capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of a 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.
26.149 On the other hand, the present situation in some jurisdictions appears to place judges in a difficult position in ordering joint trials of sexual offences. If the judge rules in favour of a joint trial which results in one or more convictions, it is said to be ‘almost inevitable’ that there will be an appeal against both the joinder and the trial judge’s decision to admit the evidence. If the appeal is successful, this ‘will result in re-trials with all the attendant emotional costs to the complainants and financial costs to the State and the defendant’. In this context, the DPP NSW stated that:
Sexual assault indictments in NSW involving more than one victim are regularly severed; indeed, it could be said anecdotally [that] there is a presumption in favour of separation.
26.150 In ALRC 84, the ALRC and the Human Rights and Equal Opportunity Commission (HREOC) noted that when the complainant’s credibility is attacked in a separate trial, ‘evidence that would support his or her credibility is disallowed and the jury are kept in ignorance of the fact that there are multiple allegations of abuse against the accused’. This is a situation which may appear to offend common sense and experience, and have the potential to cause unfairness and injustice.
26.151 Further, if separate trials are held, children involved may have to give evidence numerous times in their own trial, as well as in other trials, a process which can multiply the emotional stress experienced by child complainants. Child complainants may have protection as complainants, which may not be extended to them as witnesses in separate trials, despite facing the same accused. Adult victims of sexual offences in a family violence context also face additional trauma, especially as the pattern of offending is often long term rather than centred on one specific incident.
26.152 In the Commission’s view, a presumption of joint trial, along the lines of the Victorian provision, is desirable to encourage judges to order joint trials in sexual offence proceedings wherever possible. The main justification for this recommendation is that joint trials tend to reduce trauma for complainants.
26.153 There is some reason to suggest that joint trials can be more frequently conducted without unfair prejudice to defendants. The Victorian reforms were evaluated by the VLRC in its 2004 Sexual Offences report. The evaluation found that the new legislation had made it easier for sexual offence matters involving multiple complainants to be heard together. Stakeholders also suggested that the reforms in Western Australia have been successful in ensuring that more joint trials proceed than would otherwise have been the case. The Commissions understand that there are very few challenges when the prosecution charges on joint indictments.
Recommendation 26–5 Federal, state and territory legislation should:
(a) establish a presumption that, when two or more charges for sexual offences are joined in the same indictment, those charges are to be tried together; and
(b) state that this presumption is not rebutted merely because evidence on one charge is inadmissible on another charge.
Criminal Procedure Act 1986 (NSW) s 21(2); Criminal Code (Qld) s 597A(1AA); Criminal Law Consolidation Act 1935 (SA) s 278(2a); Criminal Code (Tas) s 326(3); Criminal Procedure Act 2009 (Vic) s 194; Criminal Procedure Act 2004 (WA) s 133; Crimes Act 1900 (ACT) s 264; Criminal Code (NT) s 341.
 See ThomsonReuters, The Laws of Australia, vol 11 Criminal Procedure, 11.7,  (as at 22 March 2010). See, eg, De Jesus v The Queen (1986) 61 ALJR 1; Sutton v The Queen (1984) 152 CLR 528.
 In NSW, Gallagher and Hickey compared the outcomes of joint trials with the outcomes from separate trials involving multiple complainants against the same accused. They found that ‘the proportion of guilty and not guilty verdicts [was] quite close when there was one trial, while for multiple trials, the vast majority result[ed] in not guilty verdicts’: P Gallagher and J Hickey, Child Sexual Assault: An Analysis of Matters Determined in the District Court of New South Wales during 1994 (1997), prepared for the Judicial Commission of New South Wales, 20. The study examined the prosecution of 158 child sex offences in joint trials and 43 such offences in separate trials.
 Tasmania Law Reform Institute, Evidence Act 2001 Sections 97, 98 & 101 and Hoch’s Case: Admissibility of Tendency and Coincidence Evidence in Sexual Assault Cases with Multiple Complainants, Issues Paper 15 (2009), [3.3.14], quoting Victorian Law Reform Commission, Sexual Offences: Discussion Paper (2001), [8.51].
 Tasmania Law Reform Institute, Evidence Act 2001 Sections 97, 98 & 101 and Hoch’s Case: Admissibility of Tendency and Coincidence Evidence in Sexual Assault Cases with Multiple Complainants, Issues Paper 15 (2009), [3.3.16]; footnotes omitted.
 These include the beliefs that: delay in complaint is evidence of fabrication; sexual assault will result in physical evidence and injury; a rape victim would scream and shout; a rape victim would be visibly upset in court; children are easily manipulated into giving false reports of sexual abuse; and a victim of sexual abuse will avoid the offender: See N Taylor and J Joudo, The Impact of Pre-recorded Video and Closed Circuit Television Testimony by Adult Sexual Assault Complainants on Jury Decision-Making: An Experimental Study (2005), 59; A Cossins, ‘Children, Sexual Abuse and Suggestibility: What Laypeople Think They Know and What the Literature Tells Us’ (2008) 15 Psychiatry, Psychology and Law 153, 156; A Cossins, J Goodman-Delahunty and K O’Brien, ‘Uncertainty and Misconceptions about Child Sexual Abuse: Implications for the Criminal Justice System’ (2009) 16 Psychiatry, Psychology and Law 435, 440. See also D Koski, ‘Jury Decisionmaking in Rape Trials: A Review and Empirical Assessment’ (2002) 38 Criminal Law Bulletin 21.
 A Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (2010), prepared for the National Child Sexual Assault Reform Committee, 179.
 Ibid, 181.
Crimes Act 1958 (Vic) s 372(3AA)–(3AC).
Criminal Law Consolidation Act 1935 (SA) s 278(2a).
Criminal Procedure Act 2004 (WA) s 133(3). When considering the likelihood of prejudice to the accused from joinder of charges, the court cannot take into account that the evidence of two or more complainants or witnesses may be the result of collusion or suggestion: s 133(6).
 Ibid s 133(5) is similar to Criminal Procedure Act 2009 (Vic) s 194 because it envisages that a joint trial may be held even where the evidence of two or more complainants is not cross-admissible. It differs because it envisages that the risk of impermissible propensity reasoning by juries and prejudice to the accused can be corrected by an appropriate judicial direction: Donaldson v Western Australia (2005) 31 WAR 122, .
 Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 85; Queensland Law Reform Commission, The Receipt of Evidence by Queensland Courts: The Evidence of Children, Report 55 (Part 2) (2000), 400.
 Consultation Paper, Proposal 17–4.
Criminal Procedure Act 2009 (Vic) s 194(2).
 Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010; Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010; A Cossins, Submission FV 112, 9 June 2010; Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010; Commissioner for Children (Tas), Submission FV 62, 1 June 2010.
 A Cossins, Submission FV 112, 9 June 2010.
 Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 85.
 Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.
 Women’s Legal Services NSW, Submission FV 182, 25 June 2010. WLS NSW and other stakeholders also referred to the distress that may be caused by inconsistent outcomes in separate sexual offence proceedings involving victims from the same family: Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010. Also National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010. The Canberra Rape Crisis Centre commented that sometimes ‘clients do not understand why this evidence is “not relevant” and are distressed when they are not believed or when they hear evidence adduced from the alleged offender that is patently untrue’: Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010.
 Public Defenders Office NSW, Submission FV 221, 2 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010.
 Law Society of New South Wales, Submission FV 205, 30 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010. WLS Qld also questioned whether it is possible to give ‘clear and understandable’ directions to a jury in these circumstances. Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.
 Law Council of Australia, Submission FV 180, 25 June 2010.
 Public Defenders Office NSW, Submission FV 221, 2 July 2010.
 National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 121, Outcome 4.3.4.
 For example, in the case of tendency evidence under Uniform Evidence Acts, ss 97, 101.
CGL v Director of Public Prosecutions (Vic)  VSCA,.
 A Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (2010), prepared for the National Child Sexual Assault Reform Committee, 180.
 Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.
 Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84 (1997), 334–335.
 Ibid, 334. For example, although a complainant’s evidence may be held to be generally inadmissible in relation to the charges involving other complainants, portions of a complainant’s evidence may be admissible for a non-tendency or non-propensity purpose. See also Tasmania Law Reform Institute, Evidence Act 2001 Sections 97, 98 & 101 and Hoch’s Case: Admissibility of Tendency and Coincidence Evidence in Sexual Assault Cases with Multiple Complainants, Issues Paper 15 (2009), [3.2.2], [3.2.4].
 For example, in relation to the means of giving evidence or the coverage of vulnerable witness protections.
 Victorian Law Reform Commission, Sexual Offences: Final Report (2004), 251. The VLRC noted that the Victorian Court of Appeal had recognised that the ‘mischief’ to which the new provisions were directed is ‘the rule of practice that had developed whereby severance was almost automatically granted’. The provisions now started from the presumption that such matters will be heard together: Victorian Law Reform Commission, Sexual Offences: Final Report (2004), 251.
 Judicial Officer (WA), Consultation, Perth, 5 May 2010; Office of the Director of Public Prosecutions (WA), Consultation, Perth, 4 May 2010.