10. Splitting a Trial — Severance and Separate Trials (Vic)¶
Scope and currency
Cheat sheet · Criminal Procedure Act 2009 (Vic) Pt 5.5 Div 3 · current to 13 August 2026
Starting point — everything on the one indictment is tried together. Section 170(1) of the Criminal Procedure Act 2009 (Vic) provides that if an indictment contains more than one charge, "the charges must be heard together unless an order is made under section 193 or 195"; s 170(2) provides that if an indictment names more than one accused, whether in the same charge or in separate charges, "the charge or charges against all accused must be tried together unless an order is made under section 193". Severance is therefore always an exception you must apply for. Work the gates below in order — and note that Gate 1 is jurisdictional, not discretionary.
The decision sequence¶
GATE 1 Was the joinder lawful in the first place? (misjoinder is not a discretion question)
The rule. Schedule 1 cl 5(1) of the Criminal Procedure Act 2009 (Vic) provides that "a charge-sheet or indictment may contain charges for related offences, whether against the same accused or different accused". "Related offences" is defined in s 3(1) as offences that are founded on the same facts, or that form, or are part of, a series of offences of the same or a similar character. An indictment filed by the Director or a Crown Prosecutor must comply with Schedule 1: s 159(3)©. Multiple accused. Schedule 1 cl 6 provides that if an offence is alleged against more than one accused, regardless of their degree of participation, the indictment may name each of those accused in the charge for the offence. No waiver, no consent. The requirement that charges be "related" is a mandatory statutory precondition to joinder. The Act does not permit an accused to waive compliance with Schedule 1 cl 5(1), and an accused cannot consent to the joinder of unrelated offences; joining unrelated charges on a single indictment is a serious departure from the prescribed processes of a trial (White (a pseudonym) v The King [2022] VSCA 278). Do not merge the two questions. The trial judge must address, separately and in order, (a) whether the joinder complies with Schedule 1 cl 5, and only then (b) whether the discretion under s 193 should be exercised to sever (R v Renzella (Unreported, Victorian Court of Appeal, 7 August 1997)). → Charges are NOT related offences: this is misjoinder, not a severance question. The charges must be severed; the s 193 discretion has no work to do. Section 166(1) provides that an indictment is not invalid by reason only of a failure to comply with Schedule 1, but a joint trial of unrelated and highly prejudicial charges is nonetheless a fundamental departure from the prescribed processes of a trial and will found a substantial miscarriage of justice on appeal (White (a pseudonym) v The King [2022] VSCA 278). → Charges are related offences: joinder is lawful. Go to Gate 2.
GATE 2 Which power are you invoking?
→ Separate trial of charges — s 193(1): "If an indictment contains more than one charge, the court may order that any one or more of the charges be tried separately." → Separate trial of accused — s 193(2): "If an indictment names more than one accused, the court may order that charges against a specified accused be tried separately." → Sexual offences — s 194: a statutory presumption of a joint trial displaces s 193 and the common law. Go to Gate 4. → Conspiracy — s 195: Criminal Procedure Act 2009 (Vic) s 195 is the discrete power to order a separate trial in a conspiracy case; s 193(4)–(8) apply to an order under s 195 as they do to an order under s 193. → Summary stream: in the Magistrates' Court a separate charge-sheet must be filed against each accused (s 56(3)), charges and accused may be heard together (s 56(2)), and the Court may order separate hearings under s 58. → Everything else: s 196 preserves the court's other powers — the s 193 regime is not exhaustive of the court's ability to manage the trial.
GATE 3 The statutory test — s 193(3)
The three limbs. The court may make an order under s 193(1) or (2) if it considers that: (a) "the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment"; or (b) "a trial with the co-accused would prejudice the fair trial of the accused"; or © "for any other reason it is appropriate to do so". The dominant consideration. The primary guide to the exercise of the discretion is the capacity of the court to ensure a fair trial for the accused, which must always remain the dominant consideration (R v Papamitrou (2004) 7 VR 375, 388). The counterweight — the policy in favour of joint trials. There is a powerful presumption in favour of a joint trial where the accused are alleged to have acted in a joint enterprise or for a common purpose, because a joint trial allows the jury to consider the whole of the facts and prevents an artificial or incomplete picture of the criminal enterprise being presented (R v Gibb and McKenzie [1983] 2 VR 155). Joint trials also serve the public interest in the efficient allocation of judicial resources, consistency of verdicts, final and expeditious litigation, and the convenience of witnesses, particularly victims (White (a pseudonym) v The King [2022] VSCA 278). The machinery. An order may be made "before trial or during a trial" (s 193(4)). If separate trials are ordered the prosecutor may elect which charge is tried first (s 193(5)). If the order is made after a jury is empanelled the court may discharge the jury from giving a verdict on the indictment (s 193(6)). The procedure on a separate trial is the same in all respects as if the charge had been set out in a separate indictment (s 193(7)), and the court may make any bail order it considers appropriate (s 193(8)).
GATE 4 Sexual offences — the statutory presumption in s 194
Scope. Section 194(1) defines "sexual offence" as including an offence to which cl 1 of Schedule 1 to the Sentencing Act 1991 (Vic) applies. The presumption. Section 194(2) provides that if two or more charges for sexual offences are joined in the same indictment in accordance with the Act, it is presumed that those charges are to be tried together, and that presumption operates despite s 193 and despite any rule of law to the contrary (other than the Charter of Human Rights and Responsibilities Act 2006 (Vic)). The safeguard that makes the presumption bite. Section 194(3) provides that the presumption is not rebutted merely because evidence on one charge is inadmissible on another charge. Cross-admissibility is therefore not, by itself, the answer in a sexual offence case — this is the single most commonly missed point. But the presumption presupposes lawful joinder. Section 194 has no work to do unless the charges were properly joined as related offences under Schedule 1 cl 5 in the first place; if they were not, they must be severed (White (a pseudonym) v The King [2022] VSCA 278). Onus. The onus is on the accused to displace the presumption by demonstrating that a joint trial would produce unacceptable prejudice (Smith v The Queen [2007] WASCA 163, on the equivalent Western Australian provision s 585(7); Buchanan v The Queen [2022] VSCA 130).
GATE 5 Cross-admissibility — the pivot of the whole application
The admissibility framework. Whether the evidence on one charge is admissible on another is governed by ss 97 (tendency) and 98 (coincidence) of the Evidence Act 2008 (Vic). The evidence must have significant probative value (ss 97(1)(b), 98(1)(b)), and under s 101(1) tendency or coincidence evidence adduced by the prosecution is inadmissible unless its probative value substantially outweighs any prejudicial effect it may have on the accused. Single-complainant cases. There is ordinarily no need for a "special feature" to make evidence of one sexual offence probative of another, because the conduct is built upon a sexual attraction to a specific person (R v Bauer [2018] HCA 40; Buchanan v The Queen [2022] VSCA 130). Multiple-complainant cases. There must ordinarily be some common feature of or about the offending that links the two together; without that link, the fact that the accused offended against complainant A proves no more than a propensity to offend, which is not a permissible basis for admission (R v Bauer [2018] HCA 40). An example of a sufficient link is the mature man who exhibits a specific, opportunistic pattern of targeting female children under 16 under the same roof (Hughes v The Queen (2017) 263 CLR 338). Where the evidence IS cross-admissible. There is nothing to be gained by ordering separate trials, because the same evidence would be led in each separate trial in any event (De Jesus v The Queen (1986) 161 CLR 290 (Dawson J); TC v The Queen [2024] VSCA 190). Where the evidence is NOT cross-admissible. At common law the counts should ordinarily be severed, because sexual allegations are "peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard", and trying non-cross-admissible sexual offences together asks too much of a jury and pays "no more than lip service" to the rules of evidence (De Jesus v The Queen (1986) 161 CLR 290 (Gibbs CJ), citing Boardman; R v PS [2020] QCA 347). In Victoria that common law reasoning is now qualified by s 194(3) where the charges are sexual offences.
Categories of prejudice — identify yours precisely¶
| Category | The risk | The court's first answer | When it forces severance |
|---|---|---|---|
| Evidence admissible against one accused only | Evidence highly damaging to A is legally inadmissible against B. | A strict direction identifying the evidence and warning the jury not to use it against the unaffected accused (JCV Criminal Charge Book 1.8, citing R v Nessel (1980) 5 A Crim R 374). | Where the differences in the admissible evidence are so vast and complex that a jury cannot realistically compartmentalise it (R v Darby (1982) 148 CLR 668). |
| Antagonistic / cut-throat defences | Co-accused actively blame and incriminate each other. | Nothing — a cut-throat defence does not of itself displace the general rule in favour of a joint trial (R v Gibb and McKenzie [1983] 2 VR 155). | Rarely. A joint trial is preferred precisely because it prevents each accused presenting an artificial, uncontested version in separate trials. |
| Out-of-court statement of a co-accused | A's confession names and incriminates B; it is admissible against A but is inadmissible hearsay against B (Evidence Act 2008 (Vic) s 59). | A direction that the statement must be disregarded entirely in considering the case against B (JCV Criminal Charge Book 1.8). | Where the statement is so prejudicial that a jury could not, as a matter of common sense, put it out of their minds when assessing B (R v Gibb and McKenzie [1983] 2 VR 155; R v Darby (1982) 148 CLR 668). |
| Accused wishes to call a co-accused | Not addressed in the source material. | — | ⚠ Gap — verify separately before relying on this ground. |
| GATE 6 What can the court do short of severance? | |||
| Trial management. The judge may adjourn, sever selected charges, or make targeted evidentiary exclusions under s 135 (general discretion to exclude) or s 137 (exclusion of prejudicial evidence in a criminal proceeding) of the Evidence Act 2008 (Vic). Excluding the offending evidence is often the "appropriate, but lesser step" that removes the need for the more drastic order (Hermanus (a pseudonym) v The Queen [2015] VSCA 2). Separate consideration of charges. The jury must be told to consider each charge separately in the light only of the evidence that applies to it, and must be warned that it would be wrong to reason that because the accused is guilty of one charge he must be guilty of another (JCV Criminal Charge Book 1.8.2 and 3.8.2). Separate consideration of accused. The jury must be told that they are in substance hearing separate trials being conducted together for convenience, and that they must evaluate the case against each accused independently (JCV Criminal Charge Book 1.8). Other misconduct evidence. Part 5 Div 1 of the Jury Directions Act 2015 (Vic) governs the directions on other misconduct evidence that prevent the jury falling into prohibited propensity reasoning. The limit — your point in reply. Where the joined charges are highly inflammatory and unrelated, judicial warnings are treated as legally ineffective; the Court of Appeal has described the resulting prejudice as an incurable "tsunami of insuperable prejudice" (White (a pseudonym) v The King [2022] VSCA 278). |
GATE 7 Practice — when, where, who bears the onus
Timing. Section 193(4) permits an order before or during trial, but in practice the application belongs at an early pre-trial stage. Pre-trial admissibility questions — in particular any tendency or coincidence notice — must be resolved first, because the severance ruling depends entirely on what evidence has been held admissible. Forum. In indictable matters the application is made to the trial judge in the Supreme Court or the County Court. In summary matters it is made to a magistrate under s 58 of the Criminal Procedure Act 2009 (Vic). Onus. The onus of displacing the statutory presumption of a joint trial, or of establishing that joinder will produce injustice, lies on the applicant accused (Smith v The Queen [2007] WASCA 163; White (a pseudonym) v The King [2022] VSCA 278). Form. The source material does not specify a prescribed form for a severance application in the County or Supreme Court; check the relevant practice note and the Criminal Procedure Rules before filing.
GATE 8 Appeal routes
→ Interlocutory appeal: a refusal to sever is an interlocutory decision within s 3 of the Criminal Procedure Act 2009 (Vic) (Buchanan v The Queen [2022] VSCA 130). A party may appeal only if the trial judge certifies under s 295(3) that an appellate determination is in the interests of justice (s 295(3)(a)) and that the decision is of sufficient importance to the trial to justify determination on an interlocutory appeal (s 295(3)(b)). If the judge refuses to certify, apply to the Court of Appeal for review under s 296. The notice of application for leave must be filed within 10 days of the decision under s 298(1), reduced to 2 days if the trial has commenced or will commence within 10 days. → Standard on interlocutory appeal: the discretion is reviewed on House v The King principles — the appellant must show that the judge acted on a wrong principle, mistook the facts, took into account an irrelevant consideration, failed to take into account a material consideration, or reached a decision that was plainly unjust or not reasonably open (House v The King (1936) 55 CLR 499, 505; Buchanan v The Queen [2022] VSCA 130). → Post-conviction appeal: the test is s 276(1) of the Criminal Procedure Act 2009 (Vic) — the appellant must establish a substantial miscarriage of justice. Where joinder was lawful but severance was refused, the appellant must show that the joint trial exposed him to such an unacceptable risk of impermissible prejudice that the trial was unfair and he was deprived of a real chance of acquittal (De Jesus v The Queen (1986) 161 CLR 290). Where the joinder itself breached Schedule 1 cl 5, the misjoinder is a fundamental departure from the prescribed processes of a trial and s 166(1) does not save it (White (a pseudonym) v The King [2022] VSCA 278).
At a glance — which provision, which test, who bears the onus¶
| Situation | Provision | Test | Onus |
|---|---|---|---|
| Charges unrelated | Sch 1 cl 5(1); s 3(1); s 159(3)© | Jurisdictional — not "related offences", so they cannot be joined; no discretion arises | n/a |
| Multiple charges, related | s 193(1), (3)(a), (3)© | Case of the accused may be prejudiced by being charged with more than one offence in the same indictment | Applicant |
| Multiple accused | s 193(2), (3)(b) | A trial with the co-accused would prejudice the fair trial of the accused; strong policy favouring joint trials for joint enterprise | Applicant |
| Two or more sexual offences | s 194(2)–(3) | Presumption of joint trial, not rebutted merely because evidence on one charge is inadmissible on another | Applicant, to displace |
| Conspiracy | s 195 | Separate power; s 193(4)–(8) machinery applies | Applicant |
| Summary proceeding | ss 56(2), 56(3), 58 | Charges/accused may be heard together; court may order separate hearings | Applicant |
Paste-ready propositions¶
• Opening on misjoinder: "The applicant's primary submission is not a submission about discretion. Charges [X] and [Y] are not related offences within s 3(1) of the Criminal Procedure Act 2009 (Vic): they are neither founded on the same facts nor part of a series of offences of the same or a similar character. Schedule 1 cl 5(1) therefore did not permit them to be joined, and the accused cannot cure that by consent: White (a pseudonym) v The King [2022] VSCA 278."
• Opening on the discretion: "If the charges were properly joined, the applicant applies under s 193(1) and s 193(3)(a) of the Criminal Procedure Act 2009 (Vic). The capacity of the Court to ensure a fair trial is the dominant consideration in the exercise of that discretion: R v Papamitrou (2004) 7 VR 375, 388."
• The cross-admissibility submission: "The evidence on count [X] is not admissible on count [Y]. It is tendency evidence within s 97 of the Evidence Act 2008 (Vic); there is no common feature of or about the offending that links the two, so the evidence proves no more than a propensity to offend: R v Bauer [2018] HCA 40. Its probative value does not substantially outweigh its prejudicial effect and s 101(1) excludes it."
• Meeting s 194: "The applicant accepts that s 194(2) creates a presumption of a joint trial and that, by s 194(3), the presumption is not rebutted merely because the evidence on one charge is inadmissible on another. The applicant's case does not rest on cross-admissibility alone. It rests on [the inflammatory disparity between the allegations / the volume of evidence admissible against the co-accused only / specify], which no direction can neutralise."
• On the co-accused's confession: "The record of interview of the co-accused is inadmissible against this applicant as hearsay under s 59 of the Evidence Act 2008 (Vic). It names the applicant and attributes to him [specify]. The direction the Crown proposes asks the jury to perform a feat of compartmentalisation that, as a matter of common sense, they cannot perform: R v Gibb and McKenzie [1983] 2 VR 155; R v Darby (1982) 148 CLR 668."
• On the limits of directions: "Directions are not an answer where the joined charges are highly inflammatory and unrelated. In such a case the jury is exposed to an incurable tsunami of insuperable prejudice: White (a pseudonym) v The King [2022] VSCA 278."
• Closing: "For those reasons the case of the accused may be prejudiced by the joinder within the meaning of s 193(3)(a), no direction can cure that prejudice, and the Court should order that charges [X] be tried separately."
Two provision corrections carried into this sheet
First, the default "tried together" rule for multiple accused is s 170(2), not s 168A(3); s 168A is Charges returned to Children's Court. Second, s 195 is* Order for separate trial — conspiracy, not a second general severance power, and s 194 is Order for separate trial — sexual offences. Sections 170, 193, 194 and Schedule 1 cll 5 and 6 in this sheet were checked against the consolidated Act; the case years were taken from one source and were not independently confirmed except* R v Gibb and McKenzie [1983] 2 VR 155. Verify the medium-neutral years on AustLII before quoting.
Currency watch¶
• 28 December 2025 — the Justice Legislation Amendment (Committals) Act 2025 (Vic) commenced. It inserted Pt 5.5 Div 3A (ss 198, 198A, 198B) and abolished the Basha procedure by s 198C. Pre-trial cross-examination is no longer available at committal for sexual offence, family violence offence and stalking charges, which increases the practical significance of getting the severance and tendency rulings right at the pre-trial stage.
• Sequence to insist on — resolve the s 97/98/101 tendency and coincidence notices before the s 193 severance ruling. A severance ruling made before the admissibility ruling is made on an unknown evidentiary base and is vulnerable on appeal.
• Not covered by the source notes — the position where an accused wishes to call a co-accused as a witness, and the prescribed form for a severance application, are not addressed in the source material. Verify separately before relying.