There has been a lot of attention surrounding the trial and conviction of Australian TV star Robert Hughes, who played the father in the 1980s sitcom Hey Dad!
Hughes was recently found guilty of 10 child sex offences dating back to the 1980s. He will be sentenced in May.
During the trial, the court heard evidence relating to five different complainants all aged between seven and 15 at the time.
The evidence of all five complainants was heard in the one trial, but the result may have been different if the trials for each complainant were separated, and heard as individual cases.
Joinder or separation of trials
In the context of sexual offending, where there is more than one complainant, joining or separating the allegations of each complainant can be significant to the outcome of the trial.
We must be cautious of the evidence of one complainant giving credit to the evidence of another complainant solely because they are heard in the one trial.
The evidence of each complainant must be considered carefully on its own.
The essence of the judicial system is that each charge must be proven by the prosecution or the police to a standard of beyond reasonable doubt.
For a trial involving one complainant but many offences, it is a relatively clear process.
For example, if someone is charged with three counts of sexual assault against a victim on three separate occasions, the jury has to consider the evidence in relation to each occasion, and see if each alleged incident is proven beyond reasonable doubt.
If there is more than one complainant, that is, three people alleging sexual offending against them by the one defendant, the jury must be careful to still consider whether the evidence proves each charge and not to leap toward a conclusion of guilt solely because of the existence of one or more complainant.
Criminal defence lawyers strive hard to guard against juries spring-boarding toward the conclusion of guilt. It is the right of every accused to have each offence considered carefully by a jury.
A good example of this kind of thinking is if you are on the jury for a trial involving an assault by a man on his wife.
If you are told this person has a conviction record for assaulting previous female partners, you may leap to the conclusion: “Well, if he has assaulted one partner before, he is likely have assaulted his current partner.”
But this thought process is not fair to the defendant, who is entitled to have each of the charges proven in court.
His previous history ought to have no bearing on who he is now.
So when can trials be joined?
Trials can be joined when the prosecution wants to allege what is called ‘tendency and coincidence’ evidence.
The law in this area is incredibly complex.
Even the top criminal legal minds have difficulty deciphering the case law and applying it to defending or prosecuting cases.
Put broadly and simply, the prosecution can join the trials when it is alleged that there is a ‘striking similarity’ or ‘underlying unity’ to the evidence.
As discussed above, there must be extreme caution in saying because a person has acted in one way before they have a tendency to act in that way again.
An allegation of sexual assault on different children is not enough.
There must be an underlying theme or unity to the way in which the assaults took place.
For instance if the acts were all committed with a highly similar modus operandi, such as all occurring in a public toilet to children of the same age, this may suggest the acts were done by the one person and therefore the trials could be joined.
In the case of Robert Hughes, this is probably why the complainants were joined.
We don’t know whether his lawyers fought hard against this, but there could have been a different outcome if the trials were separated.
Our similar experience
We successfully defended a joinder application by the prosecution for tendency/coincidence evidence purposes recently.
Our client was found not guilty in all five back-to-back sexual assault trials.
The allegations arose from events that happened more than 20 years ago, when it is alleged our client sexually interfered with children at his home.
Our client denied the allegations.
Five different juries across each trial unanimously found our client not guilty of 21 ‘sex offences‘.
The prosecution wanted all of the charges to be heard together.
Sydney Criminal Lawyers successfully argued for the cases to be tried separately as there was no underlying unity to the offending.
Our client was entitled to have each charge considered carefully.
In the end our client was vindicated.
You may see in this example how important it can be to have the trials separated.
It is possible that there could have been quite a different and unjust outcome had the trials been joined.