R. v. Novac, R. v. Johannsen
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01519.x |
| Date | 01 January 1979 |
| Published date | 01 January 1979 |
110
THE
MODERN LAW REVIEW
[Val.
42
have a similar
mens
rea
to that required by the common law? In
Churchill
v.
Wulton,lS
the House held that to be guilty of common
law conspiracy, the parties need at least to have known or intended
that their course of conduct would be
“
unlawful,” even if they had
not appreciated that it would indeed be criminal. It would clearly
be
a
retrogressive step
to
replace a common law offence with such
a
mens reu
by a statutory crime of stricter liability. Yet the
courts may be reluctant to go
so
far as to hold that only knowledge
or intention as to the criminality of an agreed course of conduct
should be sufficient
mens tea
for the new ,offence.
D.P.P.
v.
Nock
opens the way for the adoption of a moderate approach similar to
the common law, as manifested in
Churchill
v.
Wulton.
ROBINA
DEXTER.
R.
v.
NOVAC,
R.
v.
JOHANNSEN
IN
R.
v.
Novac’
and
R.
v.
Johunnsen2
the Court of Appeal has
again had to deal with the problems of similar fact evidence, and
joinder and severance
of
counts. Both cases are concerned with
a
series of homosexual offences involving several boys. While the
cases add to the ever-growing mountain of authority on similar
fact evidence, the real interest lies in the Court’s statement as to
when a judge should exercise his discretion to sever counts joined
in one indictment, and how he should deal with problems concern-
ing severance before the trial is heard by the jury.
A
judge may sever counts in two instances. The first arises when
there has not been compliance with Rule
9
of the Indictment Rules
1971
relating to joinder. The second occurs when the counts fall
under the Indictments Act
1915,
s.
5
(3).
Under
s.
5
(3)
there are
two situations in which a judge may order the counts to be severed
and tried separately:
(a)
Where the court is of the opinion that
a
person accused may
be prejudiced or embarrassed in his defence by reason of being
charged with more than one offence in the same indictment, and
(b) For any other reason it is desirable to direct that the person
be tried separately for any one
or
more offences charged in the
same indictment.
It is within the judge’s discretion to decide whether
a
particular
case falls under the provisions of section
5
(3)
and the appellate
courts have been reluctant to interfere with the exercise
of
this
discretion.8 However, in the cases of
Novac
and
Johunnsen
the
Count
of
Appeal was required
to
consider whether this discretion
should h,ave been exercised.
15
119671 2
A.C.
224.
1
(i977)
’65
Cr.App.R.
107.
a
(1977) 65
Cr.App.R.
101.
3
See
Hall
[1952]
1
K.B.
302;
Pluck
(1969)
53
0.App.R.
166:
Curris
(1913)
9
Cr. App.R.
9.
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