THE STATE OF WESTERN AUSTRALIA -v- WHITE [2026] WASCA 68

[2026] WASCA 68 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : THE STATE OF WESTERN AUSTRALIA -v- WHITE [2026] WASCA 68 CORAM : THOMSON P HALL JA ARCHER JA HEARD : 11 MAY 2026 DELIVERED : 11 MAY 2026 PUBLISHED : 19 MAY 2026 FILE NO/S : CACR 12 of 2026 BETWEEN : THE STATE OF WESTERN AUSTRALIA Appellant AND MICHAEL ALEXANDER WHITE Respondent FILE NO/S : CACR 13 of 2026 BETWEEN : THE STATE OF WESTERN AUSTRALIA Appellant AND MICHAEL LOU BURNS Respondent -- 1 of 25 -- [2026] WASCA 68 Page 2 ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : TOVEY DCJ File Number : IND 1154 of 2024 Catchwords: Criminal law - Appeal by State against order for separate trials - Whether counts properly joined - Whether counts all arise substantially out of the same or closely related facts - Where charges include violence and drug offences - Whether all alleged offences arise in the context of drug dealing - Whether evidence cross-admissible - Whether the respondents likely to be prejudiced by a joint trial Legislation: Criminal Appeals Act 2004 (WA), s 26(1), s 26(1)(a), s 26(7) Criminal Procedure Act 2004 (WA), s 85(1), s 133(3)(a), s 133(5), sch 1 cl 2(3), sch 1 cl 7(3)(b), sch 1 cl 9(1) Result: Leave to appeal is granted for CACR 12 and CACR 13 of 2026 Appeal allowed The order that counts one to six is tried separately from counts seven to ten is set aside Category: B Representation: CACR 12 of 2026 Counsel: Appellant : G N Beggs SC Respondent : G J Barns SC & K Manglaviti -- 2 of 25 -- [2026] WASCA 68 Page 3 Solicitors: Appellant : Director of Public Prosecutions (WA) Respondent : Albert Wolff Chambers CACR 13 of 2026 Counsel: Appellant : G N Beggs SC Respondent : T A Hatelie Solicitors: Appellant : Director of Public Prosecutions (WA) Respondent : HT Legal Case(s) referred to in decision(s): Dass v The State of Western Australia [2021] WASCA 212 Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 Moore (a pseudonym) v The King [2024] HCA 30; (2024) 282 CLR 460 R v Barrell and Wilson (1979) 69 Cr App Rep 250 R v Collins; Ex Parte Attorney General [1994] QCA 467; (1994) 76 A Crim R 204 The State of Western Australia v JHN [2021] WASCA 225; (2022) 59 WAR 143 The State of Western Australia v Karolides [2017] WASCA 111 The State of Western Australia v WCM [2014] WASCA 38 WRT v The State of Western Australia [2021] WASCA 161 Zammit v The State of Western Australia [2007] WASCA 66; (2007) 170 A Crim R 324 -- 3 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 4 REASONS OF THE COURT: 1 The respondents, Michael Alexander White and Michael Lou Burns, are jointly charged on an indictment containing 10 counts. On 23 February 2026, the learned primary judge determined that the counts had been improperly joined, and ordered that counts 1 - 6 should be separately tried from counts 7 - 10. The State appealed against that order pursuant to s 26(1)(a) of the Criminal Appeals Act 2004 (WA). 2 There are two appeals, one in respect of each respondent. The appeals were heard together on an urgent basis as the first of the trials was set down to commence on 2 June 2026. At the conclusion of the appeal hearing the court unanimously made orders allowing the appeal and setting aside the order for separate trials. These are our reasons for making those orders. The prosecution case 3 The following summary is based on what the prosecution alleges. It is necessary to determine a matter of this nature on that basis as no evidence has yet been led. It must be understood that what follows are allegations not proven facts. 4 At all relevant times Mr White was living at an apartment complex in Hay Street, Perth (the Hay Street apartment). 5 From 22 March 2023, Mr White was on bail for drug offences, with conditions that included that he not use or be in possession of an electronic device capable of making encrypted communications, that he reside at the Hay Street apartment, and that he be at that address between 9.00 pm and 6.00 am each day. The prosecution case is that despite these limitations, Mr White continued to run a drug business from the apartment.1 6 Callum Adam has been known to Mr White since 2017 or 2018. Mr Adam had incurred a substantial drug debt to Mr White. As of 2023, the amount of the debt was about $20,000. To pay off his debt, Mr Adam worked for Mr White, carrying out the role of a 'runner'. In this capacity, Mr Adam would collect drugs and money for Mr White and deliver it to different places. At times, Mr Adam would also store Mr White's drugs at his own home.2 In his witness statement 1 WAB (CACR 12 of 2026) 9; WAB (CACR 13 of 2026) 9. 2 WAB (CACR 12 of 2026) 9; WAB (CACR 13 of 2026) 9. -- 4 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 5 Mr Adam states that he only did this work for Mr White because he was scared that if he did not, Mr White would harm or kill him.3 7 Mr White would often assault Mr Adam for being too slow or for lying. Mr Adam accepts that he had, on occasions, stolen money or methylamphetamine from Mr White.4 The prosecution alleges that Mr White made an implied admission to having assaulted Mr Adam in text exchanges with another person.5 Counts 1 and 2 - deprivation of liberty and assault causing bodily harm 8 In March and April 2023, Mr Adam was living at a share house in Shenton Park (the Shenton Park house). Mr White was living at the Hay Street apartment, pursuant to the terms of his bail. At this time, Mr White was using Mr Adam's home to store methylamphetamine. 9 On an unknown date, at Mr White's direction, Mr Adam brought some of the methylamphetamine to the Hay Street apartment. Shortly after arriving, Mr Adam received a telephone call from his housemate, informing him that the Shenton Park house had been 'run through'.6 10 Following this telephone call, Mr White decided to accompany Mr Adam to the Shenton Park house. Before they arrived, Mr Adam was informed by his housemate that the remaining methylamphetamine stored there had been stolen. Mr White then changed his mind about visiting the Shenton Park house, and he and Mr Adam both returned to the Hay Street apartment.7 11 Once inside the Hay Street apartment, Mr White hit Mr Adam to the head with force, causing Mr Adam to lose consciousness. Mr Adam regained consciousness that evening. He found that he was on his knees, with his hands tied behind his back with electrical tape. Mr White was wearing all black and had covered his face. Mr Adam remained bound for about five to six hours (count 1 - deprivation of liberty).8 3 WAB (CACR 12 of 2026) 133; WAB (CACR 13 of 2026) 124. 4 WAB (CACR 12 of 2026) 9; WAB (CACR 13 of 2026) 9. 5 WAB (CACR 12 of 2026) 10; WAB (CACR 13 of 2026) 10. 6 WAB (CACR 12 of 2026) 10; WAB (CACR 13 of 2026) 10. 7 WAB (CACR 12 of 2026) 10; WAB (CACR 13 of 2026) 10. 8 WAB (CACR 12 of 2026) 10 - 11; WAB (CACR 13 of 2026) 10 - 11. -- 5 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 6 12 Whilst Mr Adam was tied up, Mr White punched and slapped him, leaving bruises on his face and body (count 2 - assault causing bodily harm).9 Counts 3 and 4 - assault causing bodily harm and suffocation 13 In mid-June 2023, Mr Adam was once again at Mr White's apartment. Mr White accused Mr Adam of lying to him. Mr White then grabbed Mr Adam, took him into the bathroom, and made him strip off his clothes and stand in the bath. Mr White then took a bottle of bleach and squirted it onto Mr Adam's face, body and leg. 14 As Mr Adam yelled out, Mr White squirted the bleach at Mr Adam's face. Some of the bleach went into his eyes and mouth (count 3 - assault causing bodily harm).10 15 Mr White told Mr Adam to lie down in the bathtub. Mr Adam complied. Mr White then used a piece of fabric and the showerhead to waterboard Mr Adam. Mr White continued this conduct for about 10 minutes (count 4 - suffocation).11 Count 5 - assault causing bodily harm 16 In the week prior to 30 June 2023, Mr Adam was staying at Mr White's apartment. One night, Mr Adam returned late and apologised to Mr White. Mr White threw Mr Adam onto the floor in the kitchen, then kicked and slapped him repeatedly. 17 Mr White took a kettle, which had recently boiled, and poured scalding water onto Mr Adam. Mr White only stopped because two other men who were present intervened.12 Count 6 - assault causing bodily harm 18 On 28 June 2023, Mr Adam was driving Mr White to a house in Craigie. Mr Adam dropped Mr White at the house and returned to the Hay Street apartment. When Mr White returned, he accused Mr Adam of stealing his vehicle, and then punched and slapped Mr Adam multiple times to the face.13 9 WAB (CACR 12 of 2026) 11; WAB (CACR 13 of 2026) 11. 10 WAB (CACR 12 of 2026) 11; WAB (CACR 13 of 2026) 11. 11 WAB (CACR 12 of 2026) 11; WAB (CACR 13 of 2026) 11. 12 WAB (CACR 12 of 2026) 11 - 12; WAB (CACR 13 of 2026) 11 - 12. 13 WAB (CACR 12 of 2026) 12; WAB (CACR 13 of 2026) 12. -- 6 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 7 Counts 7 - 9 - possession of prohibited drugs with intent to sell or supply 19 At 10.51 pm on 29 June 2023, officers from the Gang Crime Squad arrested Mr White at the Hay Street apartment. Officers then entered the apartment and arrested Mr Burns, who was sitting on a couch, on suspicion of possession of a prohibited drug. Mr Adam was not present in the apartment when police arrived, as Mr White had directed him to collect a package from the basement and he had gone to do so. 20 At 10.53 pm, Mr Adam entered the lift from the basement car park. Mr White told the police that 'Callum' was about to exit the lift. Mr Adam exited the lift shortly after and was arrested by police. 21 On searching Mr Adam's satchel, police officers located a cryovac bag covered in tape. That bag contained 71.2 g of methylamphetamine in a clipseal bag (count 7), and 160.7 g of MDMA in two separate bags (count 8).14 The prosecution case is that Mr White had the drugs in his custody and control as he had directed Mr Adam to collect the package and Mr Adam was acting as his agent when doing so.15 22 Upon searching the apartment, police officers also found a second cryovac bag in a kitchen cupboard. That bag contained 277 g of methylamphetamine (count 9).16 23 During the search, police officers also found the following further items. A clipseal bag containing 1.17 g of methylamphetamine was found on Mr White's person. On top of the kitchen bench, there was a bong fashioned from a glass smoking implement, a box of black latex gloves, a quantity of rubber bands, a black bag, and two smartphones belonging to Mr White. In a black bag, there were digital scales with traces of a crystal substance on them, used black latex gloves, a magnetic box, and unused clipseal bags. A second set of digital scales was found in the kitchen drawers.17 In the lounge room, a purple Samsung smartphone belonging to Mr Adam was found. On the floor of the lounge room, a gold-coloured machete was located. On a table in the lounge room, there was a booklet, titled 'Callum's diary'. The booklet contained pages that were consistent with being a tick list, that is, a list of persons who owed money on account of drugs.18 A further 14 WAB (CACR 12 of 2026) 12; WAB (CACR 13 of 2026) 12. 15 WAB (CACR 12 of 2026) 13; WAB (CACR 13 of 2026) 13. 16 WAB (CACR 12 of 2026) 13; WAB (CACR 13 of 2026) 13. 17 WAB (CACR 12 of 2026) 95; WAB (CACR 13 of 2026) 89. 18 WAB (CACR 12 of 2026) 96; WAB (CACR 13 of 2026) 90. -- 7 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 8 such list was located in a vehicle parked in the basement of the building. The vehicle was registered in the name of Mr White's partner.19 24 When questioned under caution, Mr White admitted to using methylamphetamine, but denied any knowledge of the drugs located in Mr Adam's satchel or the methylamphetamine located in the kitchen.20 Count 10 - attempt to possess a prohibited drug 25 Upon being arrested, Mr Burns told police officers that he had a quantity of money in his pocket. Officers seized $13,150 in cash from Mr Burns' pocket. He was also found in possession of a clipseal bag containing a small quantity of MDMA.21 26 Mr Burns told police that the cash in his pocket was from selling a ute. He said that he was at the Hay Street apartment to pick up his son, however, his son had not arrived as expected. He said that his daughter knew Mr White's girlfriend. He said that he had met Mr White a handful of times. He denied being asked to come to the apartment to collect or deliver anything.22 The indictment 27 The charges on the indictment are as follows:23 1. On a date unknown between 28 February 2023 and 1 May 2023 at Perth Michael Alexander White unlawfully detained Callum Trevor Adam. 2. On the same date and at the same place as in [count 1], Michael Alexander White unlawfully assaulted Callum Trevor Adam and thereby did him bodily harm. 3. On a date unknown between 31 May 2023 and 28 June 2023 Michael Alexander White unlawfully assaulted Callum Trevor Adam and thereby did him bodily harm. 4. On the same date and at the same place as [count 3], Michael Alexander White unlawfully impeded the normal breathing of 19 WAB (CACR 12 of 2026) 97; WAB (CACR 13 of 2026) 91. 20 WAB (CACR 12 of 2026) 98; WAB (CACR 13 of 2026) 92. 21 WAB (CACR 12 of 2026) 95; WAB (CACR 13 of 2026) 89. 22 WAB (CACR 12 of 2026) 99; WAB (CACR 13 of 2026) 93. 23 WAB (CACR 12 of 2026) 42 - 43; WAB (CACR 13 of 2026) 36 - 37. -- 8 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 9 Callum Trevor Adam by using an aid, namely a wet piece of fabric, to block the nose and mouth of Callum Trevor Adam. 5. On a date unknown between 21 June 2023 and 28 June 2023 Michael Alexander White unlawfully assaulted Callum Trevor Adam and thereby did him bodily harm. 6. On 28 June 2023 Michael Alexander White unlawfully assaulted Callum Trevor Adam and thereby did him bodily harm. 7. On 29 June 2023 at Perth Michael Alexander White had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. And that the offence involved a trafficable quantity of methylamphetamine. 8. On the same date and at the same place as in [count 7] Michael Alexander White had in his possession a prohibited drug, namely 3,4-methylenedioxy-n, alpha-dimethylphenylethylamine, with intent to sell or supply it to another. 9. On the same date and the same place as in [count 7] Michael Alexander White had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. And that the offence involved a trafficable quantity of methylamphetamine. 10. On 29 June 2023, at Perth Michael Lou Burns attempted to possess a prohibited drug, with intent to sell or supply it to another. Procedural history 28 Mr Adam was charged with possession with intent to sell or supply the methylamphetamine and MDMA found in his satchel (the subject of counts 7 and 8 on the indictment). On 13 December 2024, Mr Adam entered pleas of guilty to those offences and was committed for sentence. On 31 July 2025, Mr Adam was sentenced, and it is -- 9 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 10 anticipated that he will give evidence for the State in respect of all counts on the indictment.24 29 Mr White was charged with the drug counts on 30 June 2023 (counts 7 - 9), and with the violence counts on 18 August 2023 (counts 1- 6). The drug offences were committed for trial on 29 November 2024, and the violence offences on 27 February 2025.25 30 On 3 January 2025, indictment 1154 of 2024 was filed in its original form, without any of the violence counts. On 6 May 2025, the State sought to amend the indictment by including the violence counts and renumbering counts 1 - 4 to 7 - 10. That amendment was granted on 26 September 2025, at which time the matter was listed for a 10-day trial, commencing on 2 June 2026. The matter was adjourned until 21 November 2025 to confirm the availability of the investigating officer, and to confirm that all applications had been filed.26 31 On 21 November 2025, the State sought a directions hearing to determine a propensity application to adduce evidence of Mr White's previous drug offending. Counsel for Mr Burns also sought the determination of a severance application. This application sought that count 10, the only count relating to Mr Burns, be tried separately from counts 1 - 9. The matters were listed for a directions hearing on 16 February 2026 to determine the two applications. 32 At the directions hearing on 16 February 2026, the primary judge indicated that her preliminary view was that counts 1 - 6 and 7 - 10 were improperly joined. This was not the subject of any application by either Mr White or Mr Burns. The matter was then adjourned to 23 February 2026 to allow for the provision of written submissions on the joinder question. 33 On 23 February 2026, after hearing from counsel, the primary judge held that counts 1 - 6 were not properly joined with counts 7 - 10. Accordingly, her Honour ordered that each group of charges be separately tried. Her Honour did not grant Mr Burns' application to sever count 10, finding that any prejudice to him that might arise from being tried with Mr White could be guarded against by a direction as to the evidence that was only admissible against Mr White.27 24 WAB (CACR 12 of 2026) 13; WAB (CACR 13 of 2026) 13. 25 WAB (CACR 12 of 2026) 13; WAB (CACR 13 of 2026) 13. 26 WAB (CACR 12 of 2026) 13 - 14; WAB (CACR 13 of 2026) 13 - 14. 27 WAB (CACR 12 of 2026) 14; WAB (CACR 13 of 2026) 14. -- 10 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 11 The primary judge's reasons 34 Prior to commencing her reasons, the primary judge noted that she had taken a different view as to the relevance of whether evidence was cross-admissible. Her Honour said:28 The first issue to decide is whether or not the counts on the indictment ought be joined. That, in my view, is a separate issue as to whether or not certain evidence can be led at, potentially, separate trials. 35 In her reasons, the primary judge summarised the prosecution case. In respect of counts 7 and 8, her Honour said:29 The State's case on counts 7 and 8 is that whilst the drugs were located on Mr Adam, Mr White had possession of the prohibited drugs as he directed Mr Adam to go and collect the drugs from downstairs and bring them back to the Hay Street apartment. 36 The primary judge set out the procedural history and the general principles relating to severance. Her Honour noted that the State relied only upon cl 7(3)(b) of sch 1 of the Criminal Procedure Act 2004 (WA) (CPA) for the joinder of all 10 counts in the indictment. She noted that that clause had been considered by Steytler P in Zammit v The State of Western Australia.30 Her Honour also referred to WRT v The State of Western Australia.31 37 After referring to the submissions of the parties, the primary judge concluded:32 In this case, there are clear differences as to time and nature of the offences alleged by counts 1 through to 6 and the offences alleged by counts 7 through to 10. The circumstances in which the offences have allegedly been committed are quite different. In my view, the allegations the subject of counts 1 through to 6 and, relevantly, for Mr White, counts 7 through to 9, do not meet the test for joinder provided by clause 7(3)(b). I do not find that counts 7 to 9 arise substantially out of the same or closely related acts or admissions required for joinder with counts 1 through to 6. Now, for the sake of completeness, I do find that the allegations the subject of counts 1 through to 6 do arise substantially out of the same or closely related acts or admissions. It follows that I find that counts 1 through to 6 should be tried separately. 28 ts 66. 29 ts 69; WAB (CACR 12 of 2026) 50; WAB (CACR 13 of 2026) 44. 30 Zammit v The State of Western Australia [2007] WASCA 66; (2007) 170 A Crim R 324; ts 72. 31 WRT v The State of Western Australia [2021] WASCA 161 [90] - [95] (Buss P); ts 72. 32 ts 77; WAB (CACR 12 of 2026) 58; WAB (CACR 13 of 2026) 52. -- 11 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 12 38 The primary judge then turned to consider whether count 10 alone, the count relating to Mr Burns, should be severed from the indictment:33 Given my view regarding counts 1 through to 6 ought be tried separately, some of the argument for severance of count 10 does fall away. Having said that, I do find the allegations the subject of counts 7 through to 10 meet the criteria for joinder by clause 7(3), but in particular, I find the allegations the subject of counts 7 through to 10 meet the test provided by clause 7(3)(a) and clause (7)(3)(b). The next question to consider is whether Mr Burns is to be prejudiced in the trial, noting section 133(3) and (5) of the Criminal Procedure Act, which I have already referred. Now, in that regard, trials involving the joinder of two accused on an indictment which alleges one accused possessed a prohibited drug with intent to sell or supply and which alleges another accused attempted to possess a prohibited drug with intent to sell or supply to another or - indeed - another accused possessed a prohibited drug with intent to sell or supply to another are common trials within this court. In my view, the likelihood of Mr Burns being prejudiced can be guarded by a direction to the jury as to the evidence which is permissible to be led only as against Mr White, and I do not regard the matters raised by [counsel for Mr Burns] as a reason for otherwise there to be prejudice to Mr Burns in not having Mr Burns and Mr White be tried together on what is currently counts 7 through to 10 on the indictment. These rulings, however, do not mean that the evidence of drug dealing or alleged drug dealing or the alleged nature of the relationship between Mr Adam and Mr White cannot be led at separate trials. There seems to me, a number of issues to consider in this regard. The first is whether the alleged relationship between Mr White and Mr Adam can be led at a separate trial involving the drug related offences, ie counts 7 through to 10, as the indictment currently stands. 39 There followed some argument on whether evidence relating to each group of offences could be led at the trial of the other group, but no final determination was reached at that time. It is evident from her Honour's reasons, and the comment referred to at [34], that she did not consider that the cross-admissibility issue was relevant to the joinder question.34 33 ts 77 - 78; WAB (CACR 12 of 2026) 58 - 59; WAB (CACR 13 of 2026) 52 - 53. 34 ts 78 - 79. -- 12 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 13 The grounds of appeal 40 As noted earlier, there are two appeals, one in respect of each respondent. The grounds of appeal in each appeal are identical. The grounds are:35 1. The primary judge erred in the application of cl 7(3) (b) of Sch 1 of the [CPA] in determining that counts 1 to 10 were not properly joined on the indictment. (Ts 77) 2. The primary judge erred in ordering that counts 1 to 6 be tried separately from counts 7 to 10. (Ts 77) Relevant statutory provisions 41 Section 85(1) of the CPA provides that sch 1 to the Act has effect in relation to indictments and charges in them.36 Clause 2(3) of sch 1 provides, relevantly, that an indictment must contain one charge only, unless cl 7 or another written law permits otherwise.37 42 Clause 7(3) provides:38 A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences - (a) form or are a part of a series of offences of the same or a similar character; or (b) are alleged to arise substantially out of the same or closely related acts or omissions; or (c) are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose, and may do so without alleging a connection between the offences. 43 Clause 9(1) of sch 1 provides that if two or more charges are properly joined in an indictment, those charges must be tried together, unless a court orders otherwise under the CPA.39 44 Section 133(3)(a) of the CPA provides, relevantly, that if a court is satisfied that an accused is likely to be prejudiced in a trial of an indictment because it contains two or more charges, the court may 35 WAB (CACR 12 of 2026) 7; WAB (CACR 13 of 2026) 7. 36 CPA, s 85(1). 37 CPA, sch 1 cl 2(3). 38 CPA, sch 1 cl 7(3). 39 CPA, sch 1 cl 9(1). -- 13 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 14 order that the accused be tried separately on one or more of the charges.40 45 Section 133(5) of the CPA provides:41 In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court - (a) to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and (b) to so decide irrespective of the nature of the offence or offences charged; and (c) to so decide even if - (i) the evidence on one of the charges is inadmissible on another; or (ii) the evidence against one of the accused is not admissible against another, as the case requires. 46 Section 26(1) of the Criminal Appeals Act provides:42 If an accused is charged in one indictment with 2 or more offences - (a) the prosecutor may appeal to the Court of Appeal against any order made by a judge of a superior court that there be a separate trial of any of the charges; and (b) the accused may appeal to the Court of Appeal against a refusal by a judge of a superior court to order that there be a separate trial of any of the charges. 47 By s 26(7) of the Criminal Appeals Act, on an appeal against a decision to grant or refuse a separate trial (as the case may be), this court 'may confirm the order or refusal, or set it aside and make any order that could have been made on the application for a separate trial'.43 40 CPA, s133(3)(a). 41 CPA, s 133(5). 42 Criminal Appeals Act (2004) (WA), s 26(1). 43 Criminal Appeals Act, s 26(7). -- 14 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 15 Relevant legal principles 48 The expression in cl 7(3)(b) 'arise substantially out of the same or closely related acts or omissions' was considered by Steytler P (Wheeler and Pullin JJA agreeing) in Zammit. His Honour noted that previously existing similar provisions had been given a broad interpretation.44 For example, the English Court of Appeal had held that the similar phrase 'founded on the same facts' did not require that the facts founding each charge be identical in substance or virtually contemporaneous and that it was enough if they had a common factual origin.45 49 Steytler P went on to say that cl 7(3)(b) seemed to be even wider in its formulation than the previously existing provisions and drew attention to the words 'arise substantially out of' and 'the same or closely related acts or omissions'. His Honour then concluded this part of his reasons by saying:46 Considered against this background, it seems to me that the expression 'arise substantially out of … the same or closely related acts or omissions' is intended to have a relatively wide reach. So to read the expression is consistent with the cases suggesting that such provisions are not to give an unduly restrictive meaning, especially when regard is had to the broad discretion given to the Court by s 133 of the Act or equivalent provisions. 50 For the purposes of cl 7(3)(b), the acts or omissions from which each alleged offence arises must be identified. The requisite connection between the identified acts or omissions and the alleged offence is a nexus that ordinarily involves offending which develops or stems from the identified acts or omissions. Critically, cl 7(3)(b) does not confine inquiry to the acts or omissions needed to be proven in order to convict the accused of the offence. 51 In WRT, Buss P said:47 In my opinion, the acts or omissions out of which an alleged offence arises, within the meaning of cl 7(3)(b), are not confined to the acts or omissions which the State must prove to secure a conviction for the offence. If that had been intended cl 7(3)(b) would not have referred to each alleged offence '[arising] … out of' acts or omissions, but would 44 Zammit [36] (Steytler P, with Wheeler & Pullin JJA agreeing). 45 R v Barrell and Wilson (1979) 69 Cr App Rep 250. See also R v Collins; Ex Parte Attorney General [1994] QCA 467; (1994) 76 A Crim R 204, 737. 46 Zammit [39] (Steytler P, with Wheeler & Pullin JJA agreeing). 47 WRT [91] - [95] (Buss P). -- 15 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 16 have referred to the acts or omissions 'constituting' or 'comprising' each alleged offence. The phrase '[arising] … out of' points to a nexus between the relevant acts or omissions, on the one hand, and the alleged offence, on the other. The requisite nexus includes that the alleged offence has developed out of or stemmed from the acts or omissions (including the historical acts or omissions) of the accused in relation to the complainant. However, those acts or omissions do not necessarily include all of the acts or omissions in respect of which evidence is admissible at the trial. The word 'substantially' is a relative term and takes colour from the context in which it is used. In cl 7(3)(b), 'substantially' is a term of some elasticity. It connotes 'largely', 'for the most part', 'by and large', 'in the main'. See, generally, Oxford English Dictionary Online Version. In my opinion, two or more offences will 'arise substantially out of … closely related acts or omissions', within cl 7(3)(b), if the acts or omissions out of which each offence arises are 'largely', 'for the most part', 'by and large' or 'in the main' closely related. The question whether an act or omission is 'closely related' to another act or omission is one of degree. An act or omission from which an offence arises may be 'closely related' to another act or omission from which another offence arises because there is a relationship between the acts or omissions in question. One set of acts or omissions will largely or for the most part be 'closely related' to another set of acts or omissions if there is a close association or connection between the acts or omissions in question having regard, for example, to time, place, the nature of the offences, the identity of the complainant and the circumstances in which the offences have allegedly been committed. See, generally, Russell (No 2) (337); Mackay v The Queen; Zammit [37] - [39]. (citations omitted) 52 It should be noted that the other members of the court in WRT (Beech and Vaughan JJA) considered that it was neither necessary nor desirable in the circumstances of that case to determine the proper construction of cl 7(3)(b). That was because their Honours were of the view that even if there had been an improper joinder in that case, no miscarriage of justice had occurred.48 53 The courts have consistently held that multiple charges that can be joined without prejudice to the accused should be joined. The policy reasons that underpin this position include the desirability of 48 WRT [155] - [156] (Beech & Vaughan JJA). -- 16 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 17 consistency in decision making and the facilitation of a single and final enquiry into alleged offences which arise out of, or essentially involve, common issues of fact or law. Furthermore, joinder promotes the proper and efficient administration of criminal justice, including saving court time and public expense, and greater convenience for witnesses.49 54 The discretion to order separate trials under s 133 of the CPA is not enlivened unless and until the court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains two or more charges. Thus, s 133 necessitates an inquiry into whether an accused is likely to be prejudiced in the trial, and, if so, whether that prejudice is caused by the fact that there are multiple charges on the indictment.50 55 Section 133(5)(a) provides, in effect, that if a court is satisfied that an accused is likely to be prejudiced in the trial of an indictment that contains two or more charges, and the court is considering whether to order separate trials, it is open to the court to decide that any likelihood of prejudice 'can be guarded against' by directions to the jury, and, in consequence, decline to order separate trials.51 56 Prejudice may arise from the jury hearing about other conduct that they would not hear about if the counts were dealt with in separate trials. However, if the relevant evidence is cross-admissible, the ordering of separate trials will achieve nothing as the same evidence would be led at both trials. There would be no proper basis in such a case for claiming that a joint trial would be unfairly prejudicial.52 Appellant's submissions 57 The appellant submits that the question of whether the counts have been properly joined is an evaluative decision which has only one possible correct answer. The appellant submits that that decision is to be contrasted with a decision made under s 133, which is said to be discretionary in nature. In the present case, the decision under appeal is whether the counts were properly joined. In these circumstances, the 49 Zammit [59] (Steytler P, with Wheeler & Pullin JJA agreeing); WRT [87] (Buss P); The State of Western Australia v Karolides [2017] WASCA 111 [21]. 50 Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [98] (Roberts-Smith JA); The State of Western Australia v WCM [2014] WASCA 38 [14] (McLure P, with Buss JA agreeing) ; Karolides [24] - [25]. 51 CPA, s133(5)(a). 52 The State of Western Australia v JHN [2021] WASCA 225; (2022) 59 WAR 143 [88]; Dass v The State of Western Australia [2021] WASCA 212 [42] - [44]. -- 17 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 18 appellant submits that this appeal should be determined on the basis of the correctness standard. 58 The appellant submits that the nexus between all of the counts is Mr White's commercial drug dealing.53 Counts 1 - 6 relate to alleged acts of violence perpetrated against Mr Adam, who was acting as a courier to pay off a drug debt owed to Mr White. Counts 7 and 8 relate to the alleged possession of drugs which were found on Mr Adam while he was acting under the direction of Mr White. Count 9 relates to drugs found in Mr White's kitchen. Count 10 relates to the alleged attempted possession of drugs by Mr Burns, who was present at Mr White's apartment to purchase drugs from Mr White. 59 The appellant submits that the primary judge focussed on the lack of similarity between the type of offence in each group and the times at which the offences were allegedly committed but did not engage with the circumstances in which the offences were allegedly committed. Although her Honour made a brief reference to the circumstances being 'quite different', she did not expand on why that was so. The appellant submits that her Honour overlooked that the common thread underpinning all of the counts on the indictment was Mr White's drug dealing activities that he conducted from his apartment.54 60 The appellant submits that the acts out of which the alleged offences arise are Mr White's drug dealing, be that in person, or through his agent, Mr Adam. As to counts 1 and 2, the appellant says that the violence perpetrated against Mr Adam arose out of Mr White's use of Mr Adam as a drug runner. As to counts 3 and 4, the appellant says that the assaults arose out of an accusation of lying and this shows Mr White's position of ascendancy over Mr Adam, which is relevant to the nature of their relationship as regards the drug business. As to counts 5 and 6, these offences occurred in the Hay Street apartment where Mr Adam lived at the time in exchange for working as a courier in the drug business. Again, this assault is said to show Mr White's position of ascendancy over Mr Adam. As to counts 7 and 8, Mr Adam was acting under instructions and as the agent for Mr White when collecting the drugs. Count 9 stemmed from Mr White's drug dealing from the Hay Street apartment. Count 10 represents the other side of a 53 WAB (CACR 12 of 2026) 18; WAB (CACR 13 of 2026) 18 - 19. 54 WAB (CACR 12 of 2026) 18; WAB (CACR 13 of 2026) 18 - 19. -- 18 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 19 drug transaction, namely, an attempted purchase of drugs by Mr Burns from Mr White.55 61 The appellant says that all 10 counts are closely related because of the nature of the relationship between Mr Adam and Mr White, which informs the underlying circumstances of the offending. All of the offences were committed in Mr White's apartment, in the same broad context of his drug dealing business. It was only because of Mr White's drug dealing that Mr Adam was working for him. It was only because of that relationship that Mr Adam was forced to obey Mr White's demands. Count 10 arises out of Mr White's drug dealing. 62 For these reasons, the appellant says that counts 1 - 10 arose out of the same or closely related acts as they all had their genesis in Mr White's drug dealing business. The counts were correctly joined and the decision of the primary judge was in error.56 63 At the hearing of the appeal, senior counsel for the State acknowledged that the primary judge only determined the question of whether the counts on the indictment were properly joined under cl 7. Because, in her Honour's view, they were not, it was unnecessary to consider whether the counts should be severed in the exercise of the discretion under s 133 of the CPA. Though no decision in that respect was made, the State sought a determination from this court on that question to avoid the possibility of a second appeal.57 64 In the State's submissions, the evidence relevant to each group of offences was cross-admissible, and there was no prejudice that could not be adequately addressed by directions. The evidence of counts 1 - 6 is said to be admissible in relation to counts 7 - 10 as common law relationship evidence because the evidence of the relationship makes it more likely that counts 7 and 8 occurred as alleged. That evidence explains why Mr Adam, and not Mr White, was found in possession of the drugs the subject of counts 7 and 8. It also makes it more likely that Mr White was in possession of the drugs found in the kitchen. Similarly, the evidence of Mr Adam is necessary to explain why Mr Burns was in the apartment on the evening in question.58 65 The appellant says that, in any event, there is no prejudice that could not be cured by standard directions. The appellant acknowledges 55 WAB (CACR 12 of 2026) 18; WAB (CACR 13 of 2026) 19 - 20. 56 WAB (CACR 12 of 2026) 20; WAB (CACR 13 of 2026) 22. 57 Appeal ts 14. 58 Appeal ts 17. -- 19 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 20 that Mr Burns is more obviously prejudiced by the evidence relating to counts 1 - 6 as it is not suggested that he had any involvement in the violence against Mr Adam, however, this evidence is discrete and could readily be made the subject of direction to the jury.59 Respondents' submissions 66 Mr White does not take issue with the applicable legal principles and accepts that the words 'substantially' and 'closely related' in cl 7(3)(b) are to be given a liberal construction.60 67 Mr White submits that the 'acts or omissions' out of which an offence arises are not to be confused with a broad conclusion, characterisation, or inferred criminal status said to emerge from the case as a whole. The appellant's reference to a 'drug dealing enterprise' is said to be a conclusion, not an act or omission for the purposes of cl 7(3)(b). It may be relevant to admissibility of evidence, but it does not address the requirements of cl 7(3)(b). The appellant's submissions are said to reduce the joinder inquiry to only requiring that each count have some association with an alleged drug dealing business.61 68 Mr White accepts that counts 1 - 6 are properly joined, and that counts 7 - 10 are properly joined. However, he submits that the two groups are not properly joined with each other and that the primary judge was correct. Mr White says that the nexus between the two groups of offences is too attenuated.62 In oral submissions, senior counsel for Mr White pointed to the fact that, with the exception of counts 1 and 2, there was no direct link between the violence and the drug related work being done by Mr Adam for Mr White.63 However, senior counsel accepted that the evidence of violence could be admissible in respect of counts 7 and 8 as being relevant to whether Mr Adam was acting as the agent of Mr White.64 69 Alternatively, Mr White submits that, even if all of the counts were properly joined, separate trials are nevertheless required because of the risk of prejudice. The violence offences are extremely serious and could be viewed as torture. There is said to be a real risk that the nature of these allegations would so prejudice the jury against 59 Appeal ts 22. 60 WAB (CACR 12 of 2026) 28. 61 WAB (CACR 12 of 2026) 29 - 30. 62 WAB (CACR 12 of 2026) 35 - 36. 63 Appeal ts 30. 64 Appeal ts 26. -- 20 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 21 Mr White that they would convict him of the drug offences merely on grounds of bad character, regardless of the evidence. It was submitted that this risk could not be addressed by directions. Senior counsel suggested that, if there were to be separate trials, it is arguable that the evidence of the assaults would be excluded at the trial of the drug offences because its prejudicial effect would exceed its probative value.65 70 Mr Burns' submissions regarding the joinder of the two groups of offences are essentially the same as those of Mr White. Mr Burns says that he was not involved in the violence offences. His concern is with the prejudice to him that might flow from the jury thinking that he was associated with Mr White, who had committed serious acts of violence. This prejudice is said to be such that it could not be alleviated by a direction.66 71 It was pointed out that Mr Burns had not cross-appealed the decision of the primary judge to dismiss the application for a separate trial of count 10 alone. In those circumstances, he would be exposed to whatever prejudice comes from hearing counts 7 - 10 together in any event. That may include the fact that evidence of the violence would be admissible at the joint trial with Mr White of those counts. Counsel sought to address this dilemma by suggesting that this court could order a separate trial of count 10, notwithstanding that no appeal against the primary judge's decision in that regard had been brought.67 The merits of the appeal 72 The issue on this appeal is whether the primary judge was correct to conclude that counts 1 - 6 and counts 7 - 10 were not properly joined. It was on that basis that an order for separate trials was made. This depends on whether the test in cl 7(3)(b) is met, that is, that all of the counts 'arise substantially out of the same or closely related acts or omissions.'68 73 Whilst the determination of whether the requirements of cl 7 have been met is evaluative, once that evaluative decision has been made there is no discretion regarding the joinder question. The counts either are, or are not, properly joined.69 Discretion only arises if the counts 65 Appeal ts 27. 66 WAB (CACR 13 of 2026) 33; Appeal ts 40. 67 Appeal ts 40 - 41. 68 CPA, cl 7(3)(b). 69 Moore (a pseudonym) v The King [2024] HCA 30; (2024) 282 CLR 460 [15]. -- 21 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 22 are properly joined and s 133 of the CPA is engaged. The primary judge in this case determined the matter at the joinder stage and did not consider the prejudice question (except, on a different basis, in relation to count 10). Accordingly, the correctness standard applies to this appeal. This court must make its own determination on the joinder question. A detailed analysis of the primary judge's reasons is not required. 74 The relevant acts and omissions are not confined to those that are necessary to prove each count. The acts can include the relevant circumstances in which the alleged offences occurred. The following alleged acts and circumstances are relevant: 1. At all relevant times, Mr White was operating a drug business from his apartment in Hay Street. 2. That drug business included the use of Mr Adam as a runner to collect and deliver drugs and cash payments. 3. Mr Adam's involvement arose because he had a significant drug debt with Mr White and was required to work it off. 4. All of the violence offences (counts 1 - 6) occurred whilst Mr Adam was working for Mr White in the drug business. 5. The violence offences occurred over a four-month period from 28 February 2023 to 28 June 2023. 6. The drug offences (counts 7 - 10) are all alleged to have occurred on 29 June 2023. 7. Both the violence offences and the drug offences all occurred at the Hay Street apartment. 8. Mr Adam was acting on the instructions of Mr White when he went to the basement carpark, retrieved the drugs the subject of counts 7 and 8 and brought them back to the apartment. 9. At that time, Mr Burns was waiting in the apartment with Mr White and was in possession of a large quantity of cash. 10. Mr Adam will say that he worked for Mr White, and followed his instructions, because he feared being hurt or killed. -- 22 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 23 75 It is apparent that all of the counts arise out of the conduct by Mr White of a drug business from the Hay Street apartment. Mr Adam was employed in that business in a subservient role. The violence offences are not distinct and separate offending that is unconnected to the drug offences. The violence offences directly relate to the relationship between Mr White and Mr Adam, and in particular, Mr Adam's obedience to Mr White in carrying out drug related tasks. 76 Counts 1 - 10 all arise substantially out of the same or closely related acts or omissions. Accordingly, counts 1 - 10 were properly joined on the same indictment. The primary judge erred in concluding to the contrary. 77 That conclusion is supported by the fact that evidence of the violence offences is admissible in respect of counts 7 and 8. The issue in respect of counts 7 and 8 will likely be whether Mr White had control over the drugs in Mr Adam's satchel. The nature of the relationship between Mr White and Mr Adam is relevant to that issue. The fact that Mr Adam was compliant with Mr White's drug-related instructions because he feared being hurt makes it more likely that any drugs in the physical possession of Mr Adam were under the control of Mr White. 78 The cross-admissibility of evidence is relevant to both joinder and prejudice. A nexus between offences is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but the rule is not restricted to such cases. 79 Although the primary judge did not deal with the prejudice question, it has been raised by the respondents as an alternative basis upon which the severance order should be upheld. The prejudice is said to arise from the nature of the violence offences. In effect, the respondents submit that the violence offences would so inflame jurors that they would reflexively find them guilty of the drug offences without proper regard to the evidence. 80 The respondent's arguments cannot be accepted. 81 Firstly, for the reasons referred to above, evidence of the violence offences is admissible in respect of counts 7 and 8. Accordingly, severance of counts 1 - 6 from counts 7 - 10 would achieve nothing as the evidence of violence could be led at both trials. -- 23 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 24 82 Secondly, the probative value of the violence evidence arises from the serious nature of that violence and the likelihood that it would cause Mr Adam to be subservient to Mr White. That probative value exceeds any possible prejudice to Mr White. 83 Thirdly, the prejudice referred to by the respondents is readily capable of being addressed by directions. The evidence is discrete and easily identified. The use that could be made of it is easily explained. The impermissible and prejudicial use identified by the respondents could be the subject of a very clear warning (similar to that given in every case involving propensity evidence). 84 Finally, the suggestion made on behalf of Mr Burns that this court should entertain a new application to sever count 10 on grounds of prejudice cannot be accepted. The primary judge dealt with the application to sever count 10 alone and no appeal from that decision has been brought. In any event, it is accepted by Mr Burns that count 10 is properly joined with counts 7 - 9. For the reasons already given, at any trial of counts 7 - 10 the evidence of violence could be adduced as being relevant to the relationship between Mr White and Mr Adam. Any prejudice to Mr Burns could be addressed by an appropriate direction. Conclusion 85 For those reasons at the conclusion of the appeal hearing we made the following orders in respect of both CACR 12 and CACR 13 of 2026: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The order that counts 1 - 6 be tried separately from counts 7 - 10 on IND 1154 of 2024 is set aside. -- 24 of 25 -- [2026] WASCA 68 REASONS OF THE COURT Page 25 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. RR Associate to the Hon. Justice Hall 19 MAY 2026 -- 25 of 25 --