A severance application is a formal request made to a court asking that charges or accused persons, which have been joined in the one proceeding, be tried separately. Prosecutors often join related counts or co-accused together to save court time and present a coherent narrative of alleged conduct. But joinder can create real prejudice for a defendant, and a severance application is the mechanism for challenging it.
Why joinder happens in the first place
Courts permit the joining of multiple counts in a single indictment when the charges arise out of the same transaction or series of transactions, or when they are of a similar character. The same logic applies to multiple accused: if two people allegedly committed an offence together, a single trial is usually more efficient and avoids inconsistent verdicts.
Efficiency, though, isn't the defendant's concern. A jury hearing ten counts on the one indictment may start treating each count as confirmation of the others, even when the evidence for each stands alone. That bleed of prejudice is precisely what severance applications target.
Grounds for severance
There is no single rule that automatically entitles a defendant to a separate trial. Courts weigh the potential prejudice against the interests of efficiency and finality. The defendant must demonstrate that a joint trial would cause actual unfairness, not just inconvenience. Common grounds include:
- The evidence on one count is not admissible on another, and a jury is unlikely to keep the counts compartmentalised.
- A co-accused intends to run a defence that is directly inconsistent with the applicant's defence, or that implicates the applicant.
- The volume of counts is so large that a jury cannot properly focus on each one individually.
- Joinder of a very serious count alongside lesser counts creates a risk that the lesser counts will be decided on emotion rather than evidence.
The leading principle across Australian jurisdictions is that severance should be granted when the interests of justice require it. Convenience alone will not override that standard, but neither will mere theoretical prejudice.
Severance of co-accused
Splitting a trial involving co-accused raises additional complexity. Where one accused has made a statement that incriminates another, a joint trial forces the second accused to sit before a jury that has heard that material, even if it is technically not evidence against them.
Judges can direct juries to disregard such statements when considering the case against the other accused. But directions have limits. If the incriminating material is so powerful that no direction would neutralise the prejudice, a severance application has real force. Courts have accepted this argument where one co-accused's out-of-court admissions were detailed and highly incriminating of the other.
Mutually inconsistent defences are another strong ground. If Accused A says the offence happened but Accused B did it alone, and Accused B says neither of them did it, their interests are fundamentally opposed. Trying them together effectively turns each into a de facto prosecutor against the other.
When to make the application
Severance applications are typically made before the trial commences, often at a pre-trial directions hearing. Courts expect the issue to be identified early, because reorganising a trial after it has started wastes resources and can cause prejudice of its own.
That said, the power to sever is not lost once the trial begins. If circumstances emerge mid-trial that create fresh prejudice (for example, a co-accused unexpectedly runs a defence that implicates the applicant), a severance application can still be made. The court retains a discretion to discharge the jury in respect of one accused and order a fresh trial.
It's worth noting that a severance application sits alongside other pre-trial mechanisms. A voir dire is often used to resolve admissibility disputes that feed directly into whether a joint trial is workable. Resolving those questions early can strengthen or resolve the severance question at the same time.
How courts decide
The judge weighs the risk of prejudice to the accused against the cost of running separate proceedings. Relevant factors include the likely length of the joint trial, the degree of factual overlap between counts, and whether appropriate directions can cure the prejudice. Courts are realistic about the limits of jury directions. A direction can tell a jury to disregard something, but it cannot undo what the jury has heard.
Where the prosecution relies on tendency evidence across multiple counts, the severance question and the tendency direction question often collide. A tendency direction instructs a jury on the limited purpose for which they may use evidence of a defendant's past conduct, and the strength or weakness of that direction can determine whether severance is necessary.
If the prejudice is manageable by direction, courts will generally prefer a joint trial. Only where the prejudice is substantial and real, and not curable by careful judicial management, will severance be ordered.
Practical implications for the defence
A successful severance application does not end the prosecution. It means the defendant faces a separate trial on the severed counts, or that a co-accused is tried separately. That is not always a straightforward win. Separate trials mean two sets of costs, two sets of witnesses, and two opportunities for a jury to convict.
The strategic calculation depends on the nature of the prejudice. Where the real risk is that a jury will reason from one count to another in a way that distorts the evidence, severance can be essential. Where the counts genuinely overlap, the defence may be better served by addressing the joinder head-on at trial rather than fragmenting the proceedings.
Ann Valos Criminal Law assesses severance applications as part of a complete pre-trial strategy. Ann Valos Criminal Law brings over 15 years of experience and accredited specialist expertise to criminal matters across NSW, identifying procedural issues early and pressing every legitimate advantage before the trial begins.
Getting advice early
Severance applications require careful analysis of the indictment, the evidence, and the co-accused's likely defence strategy. The window for making the application is not unlimited. If you are facing a trial involving multiple counts or multiple accused persons, speaking with an accredited criminal law specialist as early as possible is the most effective step you can take.
Ann Valos Criminal Law accepts enquiries at any stage of a matter, including before charges have been formalised. Early advice on joinder and severance can shape the entire course of a proceeding.