N11013

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 173 AND 1923 OF 2023

THE STATE

V

SAM KETENG KISSI 
(No 2)

Waigani: Berrigan, J
2023: 10 and 21 November

CRIMINAL LAW – PRACTICE AND PROCEDURE – JOINDER - Section 558, Criminal Code – Application to quash the indictment - Whether indictment containing distinct indictable offences likely to prejudice or embarrass the accused contrary to s 558(1)(a), Criminal Code – Section 531(1)(2), Criminal Code - Whether multiple counts properly joined in one indictment – Whether alleged offences constituted a series of acts done or omitted to be done in the prosecution of a single purpose – Charges properly joined – Section 531(3), Criminal Code - Whether accused likely to be prejudiced by the joinder – Accused not likely to be prejudiced – Application dismissed.

The accused was charged with the abduction, deprivation of liberty and sexual penetration of one female child under the age of 12 years on 24 September 2018, the abduction, deprivation of liberty and sexual penetration of a second female child under the age of 12 years on 8 October 2018, and the abduction and deprivation of liberty of a third female child on 25 October 2018.

The accused applied to have the indictment quashed on the bases that: a) the indictment was formally defective; and b) the counts against all three complainants were not properly joined, or alternatively, the prosecutor should be required to elect upon which of the charges she will proceed or the court should direct that the trial of the charges against each of the three complainants proceed separately.

Held:

(1)	The indictment was not formally defective.
(2)	A fair and liberal interpretation should be given to determining whether several distinct offences are alleged to be “constituted by a series of acts done or omitted to be done in the prosecution of a single purpose” for the purpose of s 531(2)(b), Criminal Code.  The offences do not need to have occurred at the same time or place or against the same complainant or even be of the same kind. Whilst such considerations may be relevant all that is necessary is that the offences are constituted by a series of acts done or omitted to be done in the prosecution of a “single purpose” and that term should not be narrowly construed. Every case must be determined on its own facts and circumstances having regard to common sense and logic.  
(3)	Even where a likelihood of prejudice exists the Court is not required to make directions pursuant to s 531(3)(a) and (b), Criminal Code. It retains a discretion which must be exercised having regard to the interests of justice with particular regard to the interests of the accused.
(4)	The interests of justice demand that charges which can be heard together should usually be heard together. This promotes consistency in decision-making and facilitates a single and final enquiry into matters which arise out of or essentially involve common issues of fact or law in relation to a particular accused. It avoids the risk of oppression to an accused faced by being brought to trial on multiple occasions. It promotes the expedient administration of justice resulting in the saving of court time, public expense and the convenience of witnesses.
(5)	The alleged offences are properly joined in the indictment. They constitute a series of acts done in the prosecution of a single purpose, namely the sexual gratification of the accused with young girls. Whilst concerning different complainants, the connection between the alleged offences in pursuit of that purpose is strong. The offences are of the same kind and allegedly occurred within a relatively short period of time against girls of about the same age and in a similar manner. 
(6)	Severance is not in the interests of justice or the due administration of it. There is no prejudice in the charges being heard together. The allegations are neither factually complex nor unduly numerous. The evidence to be called with respect to each of the complainants – if accepted – is so strikingly similar that it is cross-admissible on the charges concerning the other complainants as similar fact evidence on both a propensity and coincidence basis. 

Orders accordingly

Cases cited

Ombuso v State [1996] PNGLR 335
Wari Mugining v The Queen [1975] PNGLR 352
Connelly v Director of Public Prosecutions [1964] AC 1254
R v Collins; ex parte Attorney-General [1996] 1 Qd R 631
R v Kray [1970] 1 QB 125 at 131
R v Dwyer [1967-1968] PNGLR 104 
R v McEachern [1967-1968] PNGLR 48 
Mugining v The Queen [1975] PNGLR 352 
Ombuso v The State [1990] PNGLR 335 
Paul v The State (2017) SC1630
PLAR No. 1 of 1980 [1980] PNGLR 326
SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693
Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112
Criminal Code: Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112
R v Baird (1993) 97 Cr App Rep 308 
R v Phillips [1967] Qd R 237
Beck & Beck v R [1984] WAR 127 
Philip Kaman v The State (2021) SC2227 
Johnson v. Johnson [2000] HCA 48
R v Leckie; Ex-parte Felman (1997) 18 ALR 93; 52 ALJR 155 at 160
Gobe Hongu Ltd v National Executive Council & Ors [1999] N1964

References cited

Sections 109(4) and 158(2) of the Constitution
Sections 229A, 350, 355, 531, 558, Criminal Code
Section 100 of the District Court Act 1965 

Counsel

Ms E Kave for the State 
Mr B Popeu for the accused 

RULING ON APPLICATION TO QUASH THE INDICTMENT

1.	BERRIGAN J: The State presented an indictment against the accused containing nine counts.  In summary the accused is charged with the abduction, unlawful deprivation and sexual penetration of a young girl on 24 September 2018, the abduction, unlawful deprivation and sexual penetration of a second young girl on 8 October 2018, and the abduction and unlawful deprivation of a third young girl on 25 October 2018. 

2.	The accused seeks to quash the indictment on two bases, namely that it is formally defective, and secondly that it is calculated to embarrass the accused in his defence pursuant to s 558(1)(a) and (b) of the Criminal Code, respectively.  

Allegations

3.	Counts 1 to 3 charge the accused with the abduction with intent to carnally know, the unlawful deprivation of and the sexual penetration of a female child under the age of 12 years, namely SR, then 9 years old, on 24 September 2018, contrary to ss 350(1)(a)(i), 355(1)(b) and 229A(1)(2) of the Criminal Code, respectively.

4.	Counts 4 to 6 allege that the accused committed the same offences, abduction with intent carnally know, unlawful deprivation and sexual penetration of a second female child, namely VP, then 10 years old, on 8 October 2018, respectively. Count 7 alleges a further charge of sexual penetration of VP on the same date. 

5.	Counts 8 and 9 allege the abduction with intent to carnally know and the unlawful deprivation of a third child, namely EK, then 13 years of age, on 25 October 2018.

6.	The brief facts allege on Counts 1 to 3 that sometime between 12 pm and 1 pm on 24 September 2018 SR, 9 years old, was walking towards Erima Flyover in Port Moresby, after finishing school at Wardstrip Primary School, when she was approached by the accused in his vehicle as she came close to the Chinese Embassy. He asked her if she knew a girl who also went to Wardstrip Primary School. She said she did not. The accused told her that he knew her father because they worked together and told her to get in the vehicle and he would take her to buy her some food and take her home. After the complainant got into the vehicle he drove her to Vision City, then through the tunnel at Waigani Central, on to Boroko, and then to SVS at Two Mile, where he bought chicken and chips and a drink and gave it to the complainant. He then drove to Badili, Lawes Rd, the stadium at Konedobu, then towards Police Headquarters and finally to the car park at International SOS where he parked the vehicle. He told the complainant to remove her shirt and she started to cry. He threatened that he would get a pocketknife and kill her if she did not obey him. He went to the back of the vehicle where the complainant was sitting and removed all of her clothes. He then took his clothes off and sexually penetrated the complainant by inserting his penis into her vagina. Afterwards he told her to put her clothes back on before putting his back on and driving to Hanuabada market. There he asked her where she lived and she said Erima.  He drove through Tokarara, Waigani, past the Convention Centre and on towards the National Library before turning towards the Erima flyover where he dropped her at the side of the road, where her father observed her alighting from the vehicle. She reported the matter to her father and then her mother and the matter was reported to police before the complainant was hospitalised at the Port Moresby General Hospital for two nights.

7.	It is alleged on Counts 4 to 7 that two weeks later on 8 October 2018 VP, 10 years old, also a student at Wardstrip Primary School was walking home after finishing school at about 2 or 230 pm. As she came to the Chinese Embassy bus stop the accused approached her in the same vehicle before stopping and asking her if she knew a girl by the name of “S”. The complainant replied that she did. He told her that he knew her parents and used to carry her when she was a baby. He asked her if she was hungry and when she said she was told her to get on the vehicle and he would take her and buy her lunch. At first she was afraid but he convinced her and she got on the vehicle at the back. He told her to sit next to him so she did. He drove her to Datec and then to Konedobu and to a car park near the stadium, where he stopped before going to Hanuabada market, where he got out and bought betelnut. The complainant moved to the back of the vehicle and he told her to get back in front. He then drove back to the car park near the stadium where he stopped the vehicle. He grabbed her hair and pulled her into the back seat.  He asked her if she wanted to go home or die and she said she wanted to go home. He threatened to kill her with a gun before removing her clothes, his own clothes and sexually penetrating her by inserting his penis into her vagina.  He told her to put her clothes on and then drove on to an empty block of land at East Boroko before going to the KMC shop at East Boroko where he sexually penetrated her again by inserting his penis into her vagina. Afterwards he asked her where she lived and dropped her on the side of the road near the Erima flyover. The complainant reported the matter to her aunt and was admitted to the Port Moresby General Hospital until 12 October 2018.  

8.	Acting on information the accused was apprehended by police on 10 October 2018 and charged in relation to the first two complainants. The accused was released on K2000 bail on 15 October 2018.  

9.	It is alleged on Counts 8 to 9 that on 25 October 2018 the accused approached 13 year old EK at Six Mile in his vehicle near the line of shops. He gave her K10 to buy a prepaid card, which she did. When she returned to the vehicle with the card he told her he felt sorry for her and that he would take her and buy her lunch and give her K20.  She refused but he convinced her and she got in to the vehicle. He asked her if she chewed betelnut and she said yes and he told her they would go and buy some. They drove through Five Mile to East Boroko and to Manu Auto Port and turned towards Vadavada upon which the complainant became frightened and asked the accused to drop her off. He continued driving and she started screaming and punching him in response to which he punched her on the face and head and told her to be still but she continued struggling until she managed to pull the steering wheel and the vehicle ran off the road to a roadside drain. The complainant escaped from the vehicle and ran to two women. The accused was apprehended by police following assistance from bystanders. 

FORMALLY DEFECTIVE

10.	Defence counsel reduced his contentions to a notice of motion. In it he contends that the indictment is formally defective because it contains charges in Counts 1, 2 and 3 which were not the subject of a ruling under s 100 of the District Court Act, 1965 to discharge or commit, that is those charges were not the subject of any committal proceeding or decision by the District Court.  

11.	The application was made by defence counsel on the basis that the file contains two notices of committal and it can be inferred therefore that the accused was committed in respect of alleged offences against only two complainants and not three.  

12.	The affidavit of the accused in support, however, says that he was committed to the National Court on 14 December 2022 in respect of two charges only which he understood to be the subject of committal proceeding CR 173/2023. He attaches a copy of the notice of committal he says is the subject of CR 173 of 2023. 

13.	He subsequently made a human rights application which was heard on 5 September 2023.  It appears from the decision that on 2 October 2023 Cannings J ordered that the accused’s matter be referred to the Judge Administrator of the Crimes General Track at Waigani to be dealt with as a matter of some priority.  The accused says that it was only after those orders that a notice of committal numbered 1923 of 2023 was transmitted to the National Court.  

14.	The State maintains that charges pertaining to all three complainants were the subject of a committal proceeding at the District Court and that the accused was committed with respect to charges against all three complainants. 

15.	In support of its submissions the State relies on the affidavit of Joseph Sangam, Senior Sergeant of Police and Police Prosecutor at the Waigani District Court who was responsible for conducting the committal proceeding in relation to all three complainants. He stated that the accused was prosecuted for a total of nine charges, including abduction, deprivation of liberty and sexual penetration, which were dealt with together in one proceeding. Submissions as to sufficiency of evidence was made with respect to all three complainants by both parties. Sometime towards the end of 2022 District Court Magistrate Danny Wakikura found that there was sufficient evidence against the accused for all charges and invited the accused to give a s 96 statement.  The accused provided three separate s 96 statements with respect to the charges against each of the three complainants. In December 2022 Mr Wakikura found that there was a prima face against the accused for all charges and committed the accused to the National Court for trial with respect to each of the complainants.  There are no matters currently pending against the accused at the committal court. 

16.	I note here that defence counsel explained that he obtained a copy of the accused’s file from the National Court Registry following orders by Cannings J directing the Public Solicitor to assign a lawyer to take carriage of the matter.  In response to a question by the Court defence counsel advised that the copy of the court file he obtained only comprised one volume and did not contain depositions pertaining to Counts 1 to 3 of the indictment only Counts 4 to 9, hence the application.  The Court file is two volumes. The State indicated that its copy comprises two volumes and depositions for all three complainants. Defence counsel indicated that he would not make further submissions in the circumstances but asked the Court to give a ruling in view of the issues raised concerning committal.

Consideration

17.	I accept the affidavit evidence of the Police Prosecutor which is consistent with the Court file. 

18.	The Court file, CR 173 of 2023, contains two notices of committal issued by District Court Magistrate Danny Wakikura on 14 December 2022.  As is the practice the notices of committal do not make clear on their face the dates of the alleged offences nor the complainants to which they relate. The first notice on the file is the notice relied upon by the accused. It commits the accused on charges of the unlawful taking of an unmarried girl and unlawful deprivation. Together with the first notice is the second notice of committal which commits the accused on charges of abduction, unlawful deprivation of liberty and sexual penetration (2 Counts).  

19.	It is apparent from the Court file and the alleged facts presented by the State in the National Court that the accused is alleged to have committed offences against SR and VP on 24 September 2018 and 8 October 2018, respectively. The accused was apprehended and taken to Boroko Police Station on 10 October 2018 where he was allegedly identified by both complainants. Informations were laid at the District Court in relation to those matters on 12 and 15 October 2018, respectively. He was released on District Court bail on 15 October 2018 following which it is alleged that he committed the offences against EK on 25 October 2018.  He was charged in relation to those offences on 26 October 2018.  It appears that those charges were joined with the proceeding already before the District Court, which concerned the two complainants, SR and VP.  

20.	Whilst it was not necessary to read the contents of the materials in any detail, it is clear from the Court file that those three matters were dealt with together as part of one committal proceeding, CR 173 of 2023. The informations, depositions, and submissions by the parties on the file pertain to all three complainants the subject of the indictment and the accused made s 96 statements with respect to each of the complainants.   

21.	As for the notice which has been given number CR 1923 of 2023 it is simply a photocopy of the second notice of committal contained on the file CR 173 of 2023.  It is not clear when or by whom or for what purpose it was marked CR 1923 of 2023. 

22.	The submissions of defence counsel and the evidence of the accused are somewhat at odds. The accused says there was only one notice of committal in proceedings 173 of 2023 but it is apparent from the file that the contention is incorrect. 

23.	Furthermore, whilst on the face of it there might be a basis for defence counsel’s argument that the second committal notice only pertains to VP it is clear from the court file as a whole together with the history of the matter and the affidavit of the police prosecutor that the notice concerns the alleged offences against both SR and VP. Furthermore, it appears to me that the first notice of committal on the file pertains to the alleged offences against EK.  

24.	In summary, I am satisfied that the accused was committed to the National Court to face charges pertaining to the abduction, deprivation of liberty and sexual penetration of each of SR and VP and the abduction and deprivation of liberty of EK and, as above, those matters were dealt with together. 

25.	The application to have the indictment quashed for being formally defective is refused.

JOINDER

26.	Defence counsel submitted that the indictment contains nine counts in breach of s 531 of the Criminal Code concerning three different complainants. The general rule under s 531 of the Criminal Code is that an indictment should charge one offence only: Ombuso v State [1996] PNGLR 335. In this case there are nine charges alleged to have been committed against three different complainants involving three sets of witnesses. Section 531 does not apply. The charges cannot be regarded as being constituted by the same acts for the purpose of s 531(2)(a) or a single purpose for the purpose of s 531(2)(b). If, however, the Court finds that the counts can properly be joined in the one indictment the accused is prejudiced in his defence and the prosecution should be asked to elect upon which of the charges it will proceed or the Court should direct that the trial of the charges proceed separately. The proceedings would be prejudicial because the allegations concern different victims on different dates and times. 

27.	The State submits that several distinct counts may be joined against a single accused under s 531 provided they arise out of the same or closely related facts and were done in the prosecution of a single purpose: Wari Mugining v The Queen [1975] PNGLR 352. The question is one of degree. In this case the alleged offences are similar in nature and show a pattern of behaviour. The alleged offences occurred within close proximity in time. The indictment is not prejudicial to the accused in his defence. 

Consideration 

28.	There are two main issues raised by the accused’s application.  The first is whether the counts have been properly joined in the indictment. The second is whether, in the event they are found to have been so joined, and it appears that the accused is likely to be prejudiced by the joinder, the prosecutor should be required to elect on which of the charges she will proceed or the Court should direct that the charges or any of them be tried separately. 

29.	Section 532, Criminal Code provides (emphasis mine):

JOINDER OF CHARGES: GENERAL RULES.

(1) Subject to this Code, an indictment must charge one offence only, and not two or more offences.
(2) Subject to Subsection (3), when several distinct indictable offences are alleged to be constituted–
(a) by the same acts or omissions; or
(b) by a series of acts done or omitted to be done in the prosecution of a single purpose,
charges of such distinct offences may be joined in the same indictment against the same person, and the several statements of the offences may be made in the same form as in other cases, without any allegation of connection between the offences.
(3) If in a case to which Subsection (2) applies, it appears to the court that the accused person is likely to be prejudiced by the joinder, the court may–
(a) require the prosecutor to elect on which of the several charges he will proceed; or
(b) direct that the trial of the accused person on each or any of the charges be had separately.
(4) This section does not authorize the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence.

30.	As a general rule an indictment must charge one offence only and not two or more offences: s 531(1), Criminal Code.  That is qualified, however, by the exceptions contained in s 531(2) which allow the joinder of two or more distinct offences in one indictment where they are alleged to be constituted by the same acts or omissions or by a series of acts done or omitted to be done in the prosecution of a single purpose: 531(2)(a) and (b), respectively.  Where two or more charges might properly be joined in one indictment, the court may nevertheless require the prosecution to elect on which of the charges it will proceed or direct that the trial on each or any of the charges be heard separately if it appears that the accused person is likely to be prejudiced by the joinder: s 531(3), Criminal Code.  

31.	For obvious reasons the courts have long adopted the rule that matters which may be tried together should be tried together unless the accused will be prejudiced: Connelly v Director of Public Prosecutions [1964] AC 1254.  This is for several reasons. It promotes consistency in decision-making and facilitates a single and final enquiry into matters which arise out of or essentially involve common issues of fact or law in relation to a particular accused. It avoids the risk of oppression to an accused faced by being brought to trial on multiple occasions. It promotes the expedient administration of justice resulting in the saving of court time, public expense and the convenience of witnesses: R v Kray [1970] 1 QB 125 at 131; see also R v Collins; ex parte Attorney-General [1996] 1 Qd R 631 at 637, which whilst not binding is persuasive.  

32.	The effect of defence counsel’s submission is that whilst the charges concerning each of the three complainants might properly be joined and heard together in three separate trials the nine charges against all three complainants may not be joined in one indictment.  

33.	The issue for determination is whether the allegations against the accused in relation to all three complainants might be regarded as offences alleged to have been constituted by “a series of acts done or omitted to be done in the prosecution of a single purpose” for the purpose of s 531(2)(b), Criminal Code.

34.	A review has revealed that there are very few authorities dealing with the meaning of the sub-section in this jurisdiction.  Time has not permitted an extensive review of authorities from similar jurisdictions like England and Australia. The review that has been undertaken suggests that some caution must be exercised in considering such authorities as it appears that the precise terms of s 531(2) are somewhat peculiar to Papua New Guinea.   

35.	In R v Dwyer [1967-1968] PNGLR 104 the prosecution sought to join one count of stealing between 31 March 1966 and 9 May 1966 with fifteen counts of fraudulent false accounting between 20 November 1963 and 1 March 1966. Frost J held that acts done or omitted to be done in the prosecution of the same or similar purpose which is renewed or revived from time to time are not done or omitted to be done in the prosecution of a single purpose. He held that whilst the offences of stealing and of fraudulent false accounting may have had the same or similar purpose, having regard to the lapse of time over a period of more than two years, it could not be said that they were done in the prosecution of a single purpose. In my view this approach is overly restrictive. A review of authorities show that the case has not been applied since. It is clearly not in accordance with current practice.  

36.	In R v McEachern [1967-1968] PNGLR 48 Clarkson J held that the words “constituted by” should bear an extended meaning. In that case fifteen counts (forgery, uttering false documents, unauthorised making of documents with intent to defraud and fraudulent false accounting whilst acting as a servant) were properly joined in one indictment as the distinct offences alleged to be constituted by the series of acts were done in the prosecution of a single purpose namely the unlawful maintenance of a position of control and advantage in the hotel of the accused’s employer. 

37.	In Mugining v The Queen [1975] PNGLR 352 the accused threatened to kill his employer with a knife if she did not come into the house and have sex with him. She ran from the house and shouted to her neighbours following which the appellant stabbed her before escaping. He was convicted of assault with intent to rape and of causing grievous bodily harm. The Supreme Court upheld the convictions. Raine J held that both offences were done in a single purpose. Williams J declined to decide because there had been no miscarriage of justice. Saldanha J whilst finding that there was no single purpose also found that there had been no miscarriage and dismissed the appeal. 

38.	In Ombuso v The State [1990] PNGLR 335 the Supreme Court upheld an appeal against conviction on the joint trial of wilful murder with that of rape. The appellant was convicted of raping a woman at gunpoint in a garden following which he left. She left the garden and went to her village where she reported the matter to her father. Her father left the village and went looking for the appellant with his own gun. When he came upon the appellant the appellant shot and killed him. The Court expressed the view that the two offences could not be regarded as constituting a series of acts done in the prosecution of a single purpose albeit the case was primarily concerned with the prohibition under s 531(4) and the joining of a homicide offence with any other.

39.	More recently the Supreme Court in Paul v The State (2017) SC1630 dismissed the contention that six charges of the child sex offence of abuse of trust between November 2010 and April 2011 were not properly joined pursuant to s 531(2), finding that the charges constituted a series of similar acts against the appellant.  In that case the appellant committed the offences against the same complainant with whose family he would often stay when he was in town over the weekend.

40.	It is clear from the few cases referred to that what is meant by the phrase “constituted by a series of acts done or omitted to be done in the prosecution of a single purpose” is subject to interpretation. 

41.	Before proceeding any further to consider the interpretation required I remind myself of the principles governing statutory interpretation, starting with ss 109(4) and 158(2) of the Constitution.  The Supreme Court in PLAR No. 1 of 1980 [1980] PNGLR 326, per Wilson J stated the relevant principles in these terms:
“... there is no place in a developing country where the courts, as well as the Law Reform Commission, are given special responsibilities in the process of development, for the narrow interpretation of statutes without adequate regard to the social purpose of particular legislation. Development is difficult to achieve if courts adopt too conservative an approach to the interpretation of statutes. There has been a tendency in our National Judicial System, less evident in some recent decisions of the courts but still perceptible, to over-emphasize the literal meaning of a provision at the expense of the meaning to be derived from other possible contexts; the latter including the application of the “mischief” rule, the recognition of the general legislative purpose, as well as the obligations laid down under the Constitution such as, for example, the obligation upon the courts in interpreting the law to give ‘paramount consideration to the dispensation of justice’...”

42.	It is well settled that legislation must be given its fair and liberal meaning so as to give effect to the intent of Parliament behind the provisions in question: SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693 and many others; as cited in Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112 at [11] to [12]. 

43.	Furthermore, the ordinary rules of construction shall be applied in construing the Criminal Code: Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112 at [25].

44.	It follows that a fair and liberal interpretation should be given to determining whether several distinct offences are alleged to be “constituted by a series of acts done or omitted to be done in the prosecution of a single purpose”, bearing in mind the purposes of s 531, Criminal Code, discussed at [31] above.  That is particularly so where the interests of justice require that matters continue to be dealt with expeditiously despite increasing case loads and limited court resources and the fact that the court retains the discretion under s 531(3). 

45.	The meaning of “series” in other jurisdictions has most often been considered in relation to the question of whether the offences are or form part of a series of “offences of the same or similar character”. The test does not appear in our legislation.  Nevertheless, the principles regarding the meaning of the word “series” are persuasive. 

46.	It has long been accepted that a series of offences may be constituted by only two: R v Kray [1970] 1 QB 125, 53 Cr App Rep 569, CA.  Although to be part of a series the offences need not arise out of the same facts or be part of a system of conduct there must be some connection between them: R v Kray [1970] 1 QB 125, 53 Cr App Rep 569.  In R v Baird (1993) 97 Cr App Rep 308 counts of assaults committed nine years apart were held to form part of a series although it may be that the greater the time gap, the stronger other factors establishing a nexus may need to be to establish a series.  

47.	The critical issue in this jurisdiction, however, is whether the series of offences are committed in the prosecution of a “single purpose”.  “Purpose” simply means the reason something is done:  The New Oxford English Dictionary.  

48.	For the reasons outlined above, there is limited assistance from other jurisdictions.  As observed, purpose might be defined narrowly or widely: Hangar J in R v Phillips [1967] Qd R 237.  In Beck & Beck v R [1984] WAR 127 the two appellants raped the complainant and left the house. Upon learning that police had been called Beck returned to kill the complainant. Whilst not required to decide, Brinsden J expressed the view that the offences could have been joined on the basis that they arose out of a series of acts done in the prosecution of a single purpose, namely to have sexual intercourse against the consent of the complainant without being called to account.  See Phillips for a similar example.  

49.	Applying the principles of interpretation outlined above, “single purpose” should be given its fair and liberal meaning in this jurisdiction. 

50.	It follows that the offences do not need to have occurred at the same time or place or against the same complainant or even be of the same kind. Whilst such considerations may be relevant all that is necessary is that the offences are constituted by a series of acts done or omitted to be done in the prosecution of a “single purpose” and that term should not be narrowly construed. Every case must be determined on its own facts and circumstances having regard to common sense and logic.  

51.	In this case the alleged offences constitute a series of acts done in the prosecution of a single purpose, namely the sexual gratification of the accused with young girls.  Whilst concerning different complainants, the connection between the alleged offences in pursuit of that purpose is strong. The offences are of the same kind and allegedly occurred within a relatively short period of time against young girls of about the same age and in a similar manner. 

PREJUDICE, ELECTION OR SEVERANCE

52.	The question now arises, whether despite being properly joined, the prosecution should be asked to elect upon which of the offences it intends to proceed or the Court should direct that the charges against each of the complainants should be tried separately pursuant to s 531(3), Criminal Code.

53.	As a starting point, it is clear from the terms of s 531, Criminal Code that even where the likelihood of prejudice exists the Court is not required to make directions pursuant to s 531(3)(a) and (b). It retains a discretion. Any such discretion must be exercised having regard to the interests of justice and in a criminal case that means having particular regard to the interests of the accused person.

54.	The purpose of the discretion under s 531(3)(b) is to avoid prejudice that may arise where even though the counts are properly joined the evidence on one count is not admissible on another. In jurisdictions where there is a jury, even where the risk of prejudice exists, an application for separate trials may be refused if grounds exist to favour the joining of the charges and the risk of prejudice can be alleviated by appropriate directions. 

55.	In this jurisdiction, however, there is no jury. Judges are trained in law and the proper use of evidence. Moreover, a trial judge must give reasons for their verdict on each count contained in an indictment, which reasons are open to scrutiny.  

56.	In the circumstances it is my view that the interests of justice demand that the discretion should not be exercised unless good reasons can be shown for doing so. 

57.	Returning to the present case, I am not satisfied that the accused will suffer any prejudice as a result of the counts concerning each of the complainants being heard together. The allegations are neither factually complex nor unduly numerous. Whilst the number of witnesses listed on the indictment is larger than most trials, at thirty, it can hardly be regarded as oppressive and the trial is estimated to take no more than a few days. Furthermore, whilst it is not necessary to my decision, the evidence in respect of the counts concerning each of the complainants is admissible on each of the other counts.  

58.	In particular I am satisfied that having regard to the following features of the evidence to be called (as outlined in the allegations) that if accepted - and I emphasise that is yet to be determined - it is so strikingly similar that it is cross-admissible on the charges concerning the other complainants as similar fact evidence on the basis that it is admissible to show that the accused had a propensity to do the acts constituting the offences and to exclude the possibility that the acts were committed by a person other than the accused, such that its probative value outweighs its prejudicial value, having regard to the alleged:

a.	age of the complainants; 
b.	manner in which the accused approached the complainants by vehicle;
c.	description of the said vehicle;
d.	manner in which the accused lured the complainants into the vehicle 
e.	fact that the accused brought treats for the complainants prior to any sexual penetration 
f.	manner in which the accused drove about to various locations for some time prior to any sexual penetration
g.	manner in which the accused threatened the complainants when they resisted his sexual advances;
h.	timeframe within which the acts took place. 
 
59.	In the case of the first two complainants the following additional alleged features are common:

a.	the time and location at which they were approached by the accused on a school day;
b.	the sexual penetration was penile;
c.	the accused continued to drive about the city after the sexual penetration before dropping them at the Erima flyover near their homes.

60.	Regardless of whether there is a risk of prejudice, there is no basis for the accused not to face trial on the charges brought against him by each of the three complainants and none has been offered. The offences committed against each of the complainants are serious and require determination.
 
61.	It follows that even if there was a likelihood of prejudice, severance of the trials would not be in the interests of justice or the due administration of it.  It would not only result in three separate trials but the State would be entitled to call each of the complainants on the three separate trials as their evidence would be admissible on a similar fact basis. This would cause unnecessary cost and inconvenience to the State and its witnesses and similar inconvenience if not oppression to the accused and inevitably delay the resolution of the charges against him.  It would also place an unnecessary burden on limited judicial resources.  

62.	In summary, there is no risk of prejudice. To the extent that there is any such likelihood the accused has failed to persuade me to exercise either discretion under s 532(3).  There is no basis for requiring the prosecutor to elect on which charges to proceed.  The interests of justice require that the charges be heard together. This will avoid the time, cost and inconvenience of separate trials.  It will bring finality to the matters in issue. 

Conclusion

63.	The application to quash the indictment on the basis that it is calculated to embarrass or prejudice the accused is refused. The application to have the prosecutor elect upon which of the several charges she intends to rely is refused.  I refuse to direct that the trial of any of the charges be had separately. 

64.	It follows that defence counsel may require additional time in preparation for the trial. He shall be granted an adjournment for that purpose.

Orders accordingly.
_______________________________________________________________
Lawyer for the State:	Public Prosecutor
Lawyer for the accused:	Public Solicitor