Often accused persons will face several criminal allegations during the same trial. This occurs when the "information" or the "indictment" contains more than one charge or "count." Most often the counts arise out of the same event. Where this is so it is permissible to use evidence presented about one of those counts when disposing of the other accounts.149At times, however, different counts will relate to different events. Shearing, for example, was charged in one indictment with twenty sexual offences against eleven different complainants that happened on different occasions, while Arp was charged in the same indictment with two separate sexual slayings.150Multi-count informations and indictments that allege separate incidents immediately raise the risk of prejudice, given that the triers of fact will be learning during the same trial about separate allegations of misconduct by the accused. The similar fact evidence rule influences how this risk is dealt with. There are three relevant scenarios.
First, the accused may apply for an order "severing" the counts so that they will be tried in separate proceedings. If the court rules that the counts can be used as similar fact evidence this "will favour a joint trial since the evidence on all incidents would have to be introduced in
any event."151The severance motion will likely fail. If the similar fact evidence rule is not satisfied and there are no compelling reasons to try the multiple counts together (such as a meaningful legal and factual nexus between counts, the risk of inconsistent verdicts, potential prejudice caused by delay, or efficiency and cost effectiveness) severance may be required to prevent the pointless risk of prejudice.152It is important for accused persons opposing the use of similar fact evidence to apply for severance of counts rather than to simply object to admissibility. Not only will severance prevent the trier of fact from hearing about the other alleged misconduct, but also courts have held that where unrelated incidents are going to be tried jointly in any event, the gateway for admission of similar fact evidence is more welcoming. This is because most of the "reasoning prejudice" concerns that might impel exclusion in separate trials do not apply.153The second scenario applies where the evidence relating to one or more different event counts is not admissible as similar fact evidence on the other counts but where the counts are not severed...