Commonwealth Director of Public Prosecutions v Burrows

[2017] NSWCCA 105

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105
Hearing dates:	21 April 2017
Date of orders:	21 April 2017
Decision date:	24 May 2017
Before:	Johnson J at [1]; Fullerton J at [83]; Adamson J at [84]
Decision:	Appeal by Commonwealth Director of Public Prosecutions dismissed.
Catchwords:	CRIMINAL LAW - prosecution appeal under s.5F(2) Criminal Appeal Act 1912 from order that Respondent be tried separately from other accused - other accused charged with conspiracy to import commercial quantity of cocaine - Respondent charged with possession of marketable quantity of cocaine - limited evidence against Respondent - primary Judge found there was real risk of positive injustice to Respondent if he was tried jointly with other accused - duties of prosecution and defence counsel concerning conduct of criminal trial - relevance of cost to Legal Aid Commission if Respondent tried jointly with other accused in a long trial - discretionary error not demonstrated - appeal dismissed
Legislation Cited:	Criminal Appeal Act 1912 Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 Evidence Act 1995 District Court Rules 1973 Legal Profession Uniform Conduct (Barristers) Rules 2015
Cases Cited:	DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 R v Bikic (2000) 112 A Crim R 300; [2000] NSWCCA 106 R v CE [2005] NSWCCA 326 R v Douglas [2000] NSWCCA 275 R v Guldur (1986) 8 NSWLR 12 R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 R v Middis (Hunt J, unreported, 27 March 1991) R v Quami and Ors (No. 3) [2016] NSWSC 15 R v Saunders (1994) 72 A Crim R 347 Symss v R [2003] NSWCCA 77 Trotter v R [2016] NSWCCA 57 Webb and Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30
Texts Cited:	---
Category:	Principal judgment
Parties:	Commonwealth Director of Public Prosecutions (Appellant) Andrew Allen Burrows (Respondent)
Representation:	Counsel: Mr DK Jordan (Appellant) Ms A Cook (Respondent)   Solicitors: Commonwealth Director of Public prosecutions (Appellant) Younes and Espiner Lawyers (Respondent)
File Number(s):	2016/121528
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 30 March 2017 Before: Her Honour Judge Sweeney File Number(s): 2016/121528

Judgment

1. JOHNSON J: By Notice of Appeal filed on 5 April 2017, the Commonwealth Director of Public Prosecutions (“the Director”) appeals under s.5F(2) Criminal Appeal Act 1912 against an order made in the District Court on 30 March 2017 that the Respondent, Andrew Allen Burrows, be tried separately from other accused persons named in an indictment filed in the District Court on 9 September 2016.

2. The Director’s appeal was heard before the Court of Criminal Appeal on 21 April 2017. At the conclusion of the hearing, the Court made an order dismissing the appeal with reasons to be published at a later time for that decision.

3. This judgment contains my reasons for joining in the order made by the Court on 21 April 2017.

Nature of the Appeal

4. The Director may appeal as of right against an interlocutory judgment or order given or made in criminal proceedings prosecuted on indictment: s.5F(2) Criminal Appeal Act 1912. An order for separate trial of an accused person is an interlocutory order within the meaning of s.5F: R v Saunders (1994) 72 A Crim R 347 at 348, 355; DAO v R (2011) 81 NSWLR 568 at 573 [2]-[3]; [2011] NSWCCA 63.

5. To succeed on this appeal, it is necessary for the Director to demonstrate error in accordance with the principles in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. It must be shown that the primary Judge, in the exercise of discretion, erred in acting on a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistook the facts, failed to take into account some material consideration or that the result is unreasonable or plainly unjust such that the Court may infer a failure to properly exercise the discretion.

6. This Court has observed that it is always a difficult matter for a Judge to be able to anticipate prior to trial quite how the trial will unfold so that the exercise of discretion on a separate trial application will not be lightly interfered with: R v Guldur (1986) 8 NSWLR 12 at 15; R v Douglas [2000] NSWCCA 275 at [74]. A high degree of restraint has always been required with regard to an appeal from an interlocutory decision on a matter of practice and procedure: DAO v R at 580 [55], 583 [70].

Material Before this Court on the Appeal

7. The hearing of the appeal in this Court proceeded by reference to the material which was before Sweeney DCJ on 30 March 2017.

8. If error had been demonstrated, the Respondent sought to rely upon the affidavit of Carol Younes sworn 20 April 2017. As error was not demonstrated by the Director, the Court did not have regard to the affidavit of Ms Younes in the determination of the appeal.

Procedural History

9. On 3 March 2015, following an extensive investigation by Australian Federal Police and other authorities, Joon Young Kwon, Adrian Scott Musumeci, Johan Manuel Quintero, Richard Antonio Mega and Zhi Jian Wan were arrested and charged arising from an alleged conspiracy to import into Australia a commercial quantity of a border-controlled drug, namely cocaine.

10. On 20 April 2016, the Respondent was arrested and charged with possession of a marketable quantity of a border-controlled drug, cocaine.

11. On 27 June 2016, Mr Quintero pleaded guilty and was committed to the District Court for sentence. On the same day, Messrs Kwon, Musumeci, Mega and Wan were committed for trial in the District Court.

12. On 22 July 2016, the trial of Messrs Kwon, Musumeci, Mega and Wan was listed to commence on 1 May 2017 with an estimate of three months.

13. On 27 July 2016, the Respondent waived his right to a committal proceeding and was committed for trial in the District Court.

14. On 9 September 2016, the Director filed an indictment in the District Court containing three counts. It was the trial of persons on that indictment (including the Respondent) which was fixed to commence on 1 May 2017.

15. The first count on that indictment charged Messrs Kwon, Musumeci and Mega that, between about 29 May 2014 and 3 March 2015 at Sydney and elsewhere, each did conspire with each other, Mr Quintero and others to import a commercial quantity of a border-controlled drug, cocaine, contrary to ss.11.5(1) and 307.1(1) Criminal Code Act 1995 (Cth).

16. The second count charged Mr Wan that, between about 13 February 2015 and 14 February 2015 at Sydney, he did possess a substance which had been unlawfully imported, being a marketable quantity of a border-controlled drug, cocaine, contrary to s.307.6(1) Criminal Code Act 1995 (Cth).

17. The third count in the indictment charged the Respondent in the same terms as Mr Wan that, between about 13 February 2015 and 14 February 2015 at Sydney, he did possess a substance which had been unlawfully imported, being a marketable quantity of a border-controlled drug, cocaine, contrary to s.307.6(1) Criminal Code Act 1995 (Cth).

18. On 17 March 2017, a readiness hearing took place in the District Court with respect to the matters listed for trial on 1 May 2017. A Notice of Motion was filed in Court on that day on behalf of the Respondent seeking an order for a separate trial. The hearing of that Notice of Motion was fixed for 30 March 2017.

19. On 30 March 2017, the separate trial application came before Sweeney DCJ in the Short Matters List. Following the hearing of the application, her Honour delivered ex tempore reasons allowing the application and directing that the Respondent be tried separately from the other accused.

20. On 5 April 2017, the Director filed the s.5F appeal to this Court, challenging the separate trial order.

21. On 13 April 2017, Mr Wan pleaded guilty to the second count in the indictment which related to him alone.

22. Accordingly, the appeal to this Court proceeded upon the basis that, if successful, the Director would proceed at a joint trial against Messrs Kwon, Musumeci and Mega (on the first count) and the Respondent (on the third count).

The Allegations Against the Respondent and Others

23. What follows is drawn from the Crown Case Statement which formed part of the material before the primary Judge.

24. Messrs Kwon, Musumeci, Mega and Quintero were the subject of a police investigation from about 19 July 2014. It is alleged that these persons had an ongoing agreement to import cocaine into Australia from Colombia concealed in boxes of flowers.

The Six Consignments

25. The prosecution involves six consignments from Colombia to a company in Australia called Uniflower Pty Limited (“Uniflower”). All consignments contained roses. Four consignments arrived in Sydney on dates between 7 November 2014 and 29 January 2015. Consignments 1, 2, 3 and 4 did not contain drugs. It is alleged by the prosecution that the first four consignments were dry runs for Consignments 5 and 6 which did contain cocaine.

26. The fifth consignment arrived in Sydney on 11 February 2015. The prosecution alleges that Consignment 5 contained cocaine concealed in the bases of a selection of the boxes. The precise quantity of cocaine is not known. The prosecution alleges that the quantity was approximately 3.8 kilograms of pure cocaine. It is alleged that Mr Wan and the Respondent possessed these boxes at a time when they contained more than a marketable quantity (two grams) of cocaine. Traces of cocaine are said to have been located on boxes involved in the fifth consignment.

27. The sixth consignment, which was destined for Australia, was seized in Colombia on 28 February 2015. Cocaine was concealed in the bases of a selection of boxes. The sixth consignment contained 5.9 kilograms of impure cocaine which was calculated to include 3.8 kilograms of pure cocaine.

28. None of the flowers in Consignments 1-5 were distributed or sold. Rather, they were discarded and left to rot in the Uniflower warehouse at Asquith before being disposed of.

Alleged Role of the Respondent

29. The Director does not allege that the Respondent was party to the activities of the cocaine importation group until he became involved with Consignment 5 on 13 and 14 February 2015. The prosecution alleges that, between 13 and 14 February 2015, the Respondent and Mr Wan attended the Uniflower warehouse at Asquith, discarded the flowers onto the floor of the warehouse and then flattened each box with Mr Wan transporting the flattened boxes from the warehouse to an unknown location.

30. The Director alleges that, on 17 February 2015, the Respondent and Mr Wan returned the flattened boxes (which had been ripped) to the Uniflower warehouse. It is alleged that cocaine was concealed in the lining of a selection of the boxes and that the cocaine was removed from the boxes by ripping the boxes at an unknown location. It is further alleged that the cocaine had been removed from the boxes by the time that they were returned to the Uniflower warehouse on 17 February 2015.

31. The entirety of the alleged involvement of the Respondent with respect to this criminal enterprise is summarised at paragraphs 153-172 of the Crown Case Statement, being alleged activity in the period 13-17 February 2015 with the offence of possession said to have been committed between 13 and 14 February 2015.

32. It is not alleged that the Respondent played any part with respect to Consignment 6.

33. On 3 March 2015, the Respondent was arrested and a search warrant was executed on his premises at Granville. The Respondent participated in a record of interview with police in which he admitted to attending the Uniflower warehouse with a school friend to unpack flowers, that he was paid about $150.00 for the work, that the boxes were all the same, that he was snorting ecstasy when he was at the warehouse and he denied knowing that there were drugs in the boxes (paragraphs 317-318, Crown Case Statement).

34. Following these events on 3 March 2015, it was not until 20 April 2016 that the Respondent was charged and on that occasion he declined to participate in a further interview (paragraph 319, Crown Case Statement).

The Hearing and Judgment on 30 March 2017

35. The hearing of the Notice of Motion came before Sweeney DCJ in the Short Matters List. Her Honour received the documentary material relied upon by the parties, including written submissions on behalf of the Director and the Respondent.

36. Having considered that material in Chambers, her Honour proceeded with the hearing at which submissions were made and counsel responded to questions from the presiding Judge with respect to the interlocutory application.

37. Her Honour delivered an ex tempore judgment at the conclusion of the hearing. After outlining the way in which the prosecution put its case with respect to Consignments 1-6 and the limited role of the Respondent (confined to the fifth consignment only) her Honour continued (Judgment, pages 2-5):

“The application by Mr Burrows is made on two bases. One is that the bulk of the evidence in respect of the alleged conspiracy in count 1 will not be admissible against him, that that will take up most of the time in the trial, which is estimated to run for two to three months as I understand it, that the evidence admissible against him is in short compass and that there is a risk of prejudice to Mr Burrows if he is required to stand trial with the accused the subject of count 1, because of “guilt by association” in the jury hearing the evidence, which I understand will consist of electronic surveillance and physical surveillance of Mr Musumeci, Mr Kwon and Mr Mega, and it is submitted that there is a risk that that prejudice could not be overcome by directions to the jury.

There is a secondary argument that there will be a cost to Mr Burrows of having to be present and represented during the trial for a period of some months where the evidence which is relevant to him will take a short part of that trial and where his counsel will only play a role in the trial at the end of the trial, as the Crown intends to present its case chronologically, and therefore there is an unnecessary drain on the resources of the Legal Aid Commission anticipated if Mr Burrows is required to be present and represented throughout the whole of the trial.

The Crown submits that the evidence in respect of the first four consignments is admissible against Mr Burrows. The Crown submits in this application that there has been no ruling made at this stage that the evidence in respect of the first four consignments is not admissible against him. The Crown submits that the evidence in respect of the first four consignments is admissible to show that there was cocaine present in the fifth consignment, and the Crown’s submission is that the different treatment of the contents of the first four consignments, where the boxes were placed in the warehouse and nothing was done with them, and the different treatment of consignment 5, in respect of which the flowers were unpacked from the boxes and the boxes taken away, is evidence from which the Crown will ask the jury to infer that there was cocaine present in the fifth consignment, and that it will not be sufficient for the Crown to ask the jury to infer there was cocaine present in consignment 5 to simply rely on the presence of cocaine in consignment 6 and the similarities in packaging, but that the contrast between the treatment of consignments 1 to 4 and the treatment of consignment 5 provides a basis for the jury to draw the inference that there was cocaine in consignment 5. I understand that argument.

The Crown concedes that the jury could not be asked to use the evidence in respect of the different treatments of consignments 1 to 4 and consignment 5 as proving Mr Burrows’ knowledge or recklessness in respect of there being cocaine in the boxes which the Crown says he was asked to unpack.

The Crown argues in written submissions that the ordinary position is that where people are jointly charged there should be a joint trial. The Crown argues that there will be a cost consideration in terms of the Crown having to effectively present the same trial twice if Mr Burrows is separated from the other persons on the indictment and there will be inconvenience to witnesses having to give evidence twice.

Mr Howell, counsel for Mr Burrows, submits that there is a distinction in this case in that it is not a case, for example, which involves a sexual assault charge and a complainant [about] whom there is a greater public concern about inconvenience to such witnesses having to give evidence twice.

I have raised in the course of submissions my concerns that the evidence which the Crown proposes to lead in respect of the first four consignments in its entirety, in terms of conversations between the alleged co-conspirators and the actions of those co-conspirators, whether that evidence would be admissible against Mr Burrows. The Crown maintains that it would be although I have some concerns. But I am concerned that if that evidence is presented in a trial where Mr Burrows is present, with the three accused who are the subject of the alleged conspiracy, that despite directions, and despite strong directions to a jury, that that evidence in terms of the nature of it and the quantity of it, will be so overwhelming that there is a risk, and in my view a serious risk, that a jury would not comply with directions, even though juries are presumed to comply with the judge’s directions, that a jury would be overwhelmed by that evidence to the prejudice of Mr Burrows. I think that for Mr Burrows to be in a joint trial with the three accused in count 1 in the presence of all that evidence would be prejudicial to him in a way that cannot be overcome by directions.

The cost aspect, I appreciate, was put on behalf of Mr Burrows as a secondary consideration but I think that it is a consideration in a trial like this where the trial is estimated to go for two to three months and the role played by Mr Burrows and his counsel is for a short period of that time, although the Crown insists that the trials would effectively be duplicated if Mr Burrows was separated. But in my view, the potential prejudice to Mr Burrows if he were to be in a trial with the three accused in count 1 must be given greater weight than the inconvenience to Commonwealth Crown witnesses and inconvenience to the Crown, and the cost of the Crown having to run two trials. I am not persuaded that the second trial would have to be a mirror image of the first, although that is a matter for the parties to discuss. But in my view Mr Burrows has discharged his onus in satisfying the Court that it is in the interests of justice that he receive a separate trial, and therefore the order I make is that Mr Burrows be tried separately in respect of count 3 on the indictment.”

The Grounds of Appeal

38. The Director relied upon two grounds of appeal:

1. Ground 1 - Her Honour incorrectly characterised a large portion of the evidence against Messrs Mega, Kwon and Musumeci as not being admissible in the case against the Respondent; and

2. Ground 2 - her Honour incorrectly concluded that no directions the trial Judge could give to the jury would alleviate any prejudice caused by the adducing of evidence not admissible against the Respondent if he were to stand trial with Messrs Kwon, Mega and Musumeci.

Submissions of the Parties

39. Mr David Jordan, counsel for the Director, submitted that the primary Judge had fallen into error in that her Honour had effectively reversed the onus which lay upon the Respondent to demonstrate that a separate trial should be ordered. It was submitted that the primary Judge approached the application upon the basis that it was effectively for the prosecution to demonstrate that the evidence relevant to the first count was admissible against the Respondent as well and, if that be the case, that directions to a jury could overcome any potential unfairness to the Respondent.

39. It was submitted as well for the Director that a type of onus had been placed on the prosecution to show that a separate trial of the Respondent would not be significantly shorter than a joint trial. It was submitted that her Honour had erred in apparently leaving open the prospect that there could be discussions between the parties as to the manner of presentation of evidence admissible against the Respondent at a separate trial and that, in this respect, the primary Judge had taken into account an irrelevant consideration. It was submitted further for the Director that the primary Judge had erred in the approach to prejudice arising from a joint trial in circumstances where the judgment of her Honour did not purport to make a ruling concerning admissibility but expressed “concerns” about the risk of unfairness to the Respondent.

40. Ms Angela Cook, counsel for the Respondent, submitted that no error had been demonstrated in the discretionary order made by the primary Judge. It was noted that the Respondent did not seek a ruling on evidence as part of his application for a separate trial and that he was not required to do so. Rather, the Respondent had raised significant concerns about the admissibility of evidence surrounding the first count as against the Respondent and the adequacy of directions which the trial Judge could give to the jury, should part of that evidence be admissible for one purpose only. It was emphasised that the hearing before the primary Judge had proceeded upon the basis that the Crown sought to rely upon the evidence of the earlier consignments to prove that cocaine was involved in the fifth consignment, and not for the purpose of establishing the relevant state of mind (recklessness) as against the Respondent. It was submitted that the primary Judge had expressed understandable concerns about this distinction when it came to directions which would be given to the jury at any joint trial.

41. If it came to a determination as to admissibility, Ms Cook submitted that there was a substantial basis upon which the evidence concerning the first four consignments ought be held to be irrelevant (s.55 Evidence Act 1995) or, even if relevant, ought be excluded under s.137 Evidence Act 1995.

42. With respect to the second ground, Ms Cook submitted that it was clearly open to the primary Judge to find that there was a serious risk of unfair prejudice in that the jury would be overwhelmed by the lengthy and substantial evidence of electronic recordings of conversations between the other accused persons, which would take many days to tender before a jury at trial. It was submitted that there was a real risk of the Respondent being found “guilty by association” in this case, in particular through the substantial risk of clearly impermissible use of the evidence involving the other accused persons as bearing upon proof of the mental element against the Respondent.

43. It was submitted, as well, that it was open to the primary Judge to have regard to the cost burden on the Respondent and the Legal Aid Commission in the event that the Respondent and his legal representatives were involved in a lengthy joint trial, as opposed to a much shorter separate trial involving the Respondent only.

44. Counsel submitted that the primary Judge well understood the onus of proof on the application which was applied expressly in her Honour’s ex tempore decision.

45. It was submitted for the Respondent that error having not been demonstrated, the Director’s appeal ought be dismissed.

Applicable Legal Principles

47. The principles to be applied on a separate trial application under s.21(2)(b) Criminal Procedure Act 1986 are well settled. There are strong reasons of principle and public policy why persons charged with committing an offence jointly should be tried together: Webb and Hay v The Queen (1994) 181 CLR 41 at 88-89; [1994] HCA 30. These public interest concerns include conserving costs, avoiding inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts: Symss v R [2003] NSWCCA 77 at [68]. The third concern is particularly important where one accused may try to cast blame on the other accused: Webb and Hay v The Queen at 88-89.

48. The Respondent bore the onus of establishing that a separate trial order should be made: R v Bikic (2000) 112 A Crim R 300 at 305 [21]; [2000] NSWCCA 106.

49. It was for the Respondent to demonstrate that there was a real risk that a positive injustice would be caused to him as a consequence of a joint trial: R v CE [2005] NSWCCA 326 at [4].

50. In R v CE, Grove J (Hall J and Smart AJ agreeing) continued at [5], citing the well-known statement of Hunt J in R v Middis (unreported, 27 March 1991, BC9102181):

“It is inevitable that an application must be considered prospectively. In R v Middis NSWSC, unreported 27 March 1991, Hunt J observed:

‘I do not believe that the Court of Criminal Appeal in Oliver intended an applicant for a separate trial to demonstrate that positive injustice would more likely than not be caused by a joint trial (as it was suggested in argument); nor do I accept that a mere possibility of prejudice is sufficient (as it was also suggested in argument). In my view, what the Court of Criminal Appeal was saying was that as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would - if it arises - result in positive injustice to him in a joint trial’.”

51. Whilst most joint trials may be productive of some degree of prejudice, such prejudice will not be taken to amount to positive injustice unless it is of a kind which is not really amenable to nullification by judicial directions to the jury: R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 (“R v Henry”) at [12].

52. In R v Henry, Nettle AJA (as his Honour then was), with the agreement of McClellan CJ at CL and Simpson J, said at [12]:

“… one situation in which there may be grounds for separate trials is where the evidence admissible against one accused is significantly different from the evidence admissible against the other (R v Darby [1982] HCA 32; (1982) 148 CLR 668, 678). Another, is where there is a likelihood that some evidence which is led against one accused will be prejudicial to the other, albeit inadmissible against him or her. A separate trial may be also required in some cases where the evidence against one accused may in effect swamp the jury’s consideration of the case against the other accused. The same may be true where the circumstances are such as to create a serious risk of an irrational finding of guilt by association (R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428, 431).”

53. Where a separate trial application is made, a discretionary balancing exercise is required in which the concerns which support a joint trial must be weighed against the prejudice to the applicant: R v Henry at [12].

Decision

54. The present appeal arises from an interlocutory decision concerning a matter of practice and procedure made by an experienced Judge of the District Court. It does not matter that the primary Judge made the decision in the Short Matters List, and not as the trial Judge who was to preside at the trial.

55. It is necessary to keep in mind that the Respondent is not alleged to be party to the conspiracy contained in the first count. Rather, the Respondent is charged solely with an offence of possession of the quantity of cocaine alleged to have been imported in the fifth consignment. The Respondent’s alleged involvement is confined to a period of days in February 2015 relating to that consignment.

56. It is not alleged that there was direct contact between any of the alleged conspirators in the first count and the Respondent. These aspects should be kept in mind when considering broad statements of principle concerning the desirability of persons alleged to have been part of the same criminal enterprise being tried together (see [47] above).

57. This is not a case where the concept of cutthroat defences or the risk of inconsistent verdicts have relevance. The Respondent is not charged jointly with any other accused person. The charge against him stands alone.

58. With respect to the claim of reversal of the onus of proof, regard should be had to the practical context in which the application came to be heard. The Respondent had proceeded by Notice of Motion seeking an order for a separate trial in accordance with Part 53 Rule 10(2)(d) District Court Rules 1973. The Notice of Motion came before a Judge in the Short Matters List. Documentary material was put before the Court in the form of an affidavit in support of the Notice of Motion, the Crown Case Statement and written submissions on behalf of the Respondent and the Director. Her Honour read that material and proceeded with the hearing of the application. The hearing involved the making of further submissions by counsel and her Honour posing questions to counsel for the purpose of testing the propositions being advanced at the hearing.

59. In circumstances where the Respondent was the subject of a separate count on the indictment confined to limited activities in a short time span, it was understandable that her Honour posed questions to the prosecution concerning the proposition that the great bulk of evidence to be admitted at the trial of the alleged conspirators in Count 1 would be admissible against the Respondent. The discussion between the primary Judge and counsel proceeded at a level of generality, where the manner in which evidence would be said to be admissible against the Respondent was not demonstrated with particular clarity. A similar process was undertaken in this Court at the hearing of the appeal where, once again, it was not expressed with clarity as to how a multitude of conversations between other persons would be admissible against the Respondent.

60. I do not consider that the manner in which the hearing of the Notice of Motion proceeded in the District Court supports the Director’s contention that there was a form of reversal of onus of proof applied to the determination of the separate trial application.

61. The primary Judge stated that the onus lay with the Respondent on the separate trial application. It has not been demonstrated that her Honour departed from this approach in the determination of the separate trial application.

62. It is the case that the Respondent did not seek a ruling in his Notice of Motion concerning the admissibility of the evidence to be adduced against the alleged conspirators in the first count as against him on the third count. It may sometimes be the case that a ruling as to admissibility of evidence will be related to, or give rise to, a separate trial application. There may be a practical relationship between the two issues which bears upon the outcome of a separate trial application: DAO v R at 573 [3], 593 [124]-[126].

63. In some circumstances, it may be appropriate to defer a ruling on the separate trial application until a determination is made concerning the admissibility of evidence. The commencement of the trial may have been deferred until such time as a ruling was made concerning the admissibility of the evidence relating to the alleged conspirators in the first count as against the Respondent on the third count. Such a course was not proposed in the present case. It would have had unsatisfactory consequences if it had been proposed.

64. With respect to the first ground of appeal, it should be kept in mind that the argument for the Director at its highest before the primary Judge (and in this Court) was that the evidence as against the alleged conspirators in the first count would be admissible for one purpose only as against the Respondent on the third count, namely to establish that cocaine was actually imported in the firth consignment. It was made clear that the prosecution could not rely upon this evidence with respect to the mental element of recklessness as against the Respondent on the third count.

65. Accordingly, this was not a case where that evidence could be admitted for all purposes as against the Respondent. Further, it was made clear before the primary Judge (and again in this Court) that there was a very live question as to whether the evidence bearing upon the first count was admissible at all against the Respondent.

66. It was in this context that the primary Judge expressed concerns that, even if the evidence was admissible for one purpose only, there was a real risk that a jury would have regard to that evidence for an impermissible purpose (the Respondent’s mental state) because of the many days of the trial which would be occupied to adduce that evidence, thereby rendering it a major component of the trial. The test, of course, is expressed in terms of a real risk of positive injustice to be determined prospectively (see [49]-[50] above). Her Honour was satisfied that there was “a serious risk that a jury would not comply with directions” and “would be overwhelmed” by the evidence to the prejudice of the Respondent (see [37] above). Those conclusions were open to the primary Judge in the circumstances of this case.

67. The primary Judge did not fall into error in approaching the decision on the separate trial application in the way in which she did.

68. Even before this Court, counsel for the Director was not in a position to articulate, by reference to any analysis of the evidence on the first count, how that evidence would be admissible against the Respondent to prove that Consignment 5 contained cocaine.

69. In the course of argument on appeal, the areas of evidence to be relied upon by the prosecution on this issue seemed to fall into two areas. The first area concerned the physical location of boxes and flowers and details of importations with respect to the first four consignments, and then the fifth consignment itself. If admissible against the Respondent, it might be thought that the evidence of physical matters of that type may be adduced at a separate trial of the Respondent in an efficient way through a Customs officer or officers and/or an officer of the Australian Federal Police. The trial Judge would be entitled to expect that prosecuting and defence counsel would facilitate the way in which such evidence was to be adduced at trial (if held to be admissible against the Respondent) in discharge of the obligations of the prosecutor and defence counsel under the provisions in Division 3 of Part 3 of the Criminal Procedure Act 1986 (NSW) (ss.134-149F) and Rule 58 of the Legal Profession Uniform Conduct (Barristers) Rules 2015, about which more will be said shortly.

70. However, it was the second area which remains controversial. In circumstances where the Respondent has indicated an objection to the tender of other evidence (including electronic evidence containing many conversations) arising from the first count, an assessment as to the admissibility of particular pieces of evidence (including conversations between the alleged conspirators in the first count) would require an understanding of what it was in particular conversations which was sought to be tendered against the Respondent, and how evidence of admissions made in conversations by other parties could be admissible against him on the third count. This process would involve, amongst other things, consideration of provisions in Part 3.4 of the Evidence Act 1995 with respect to admissions.

71. It was apparent at the hearing of the appeal in this Court that the Crown proposal to tender evidence with respect to the first count against the Respondent had not descended to that level of detail. It is sufficient to observe in this respect that the primary Judge’s expression of concern on this topic was understandable.

72. Once again, if evidence in this category was admissible against the Respondent on the third count, it might be thought that the parties (after a ruling concerning admissibility) could engage in a practical discussion in discharge of their professional duties so as to facilitate the adducing of such evidence in a timely way at a separate trial of the Respondent. It is pertinent in this respect to note the obligations upon both prosecuting and defence counsel under Clause 58 Legal Profession Uniform Conduct (Barristers) Rule 2015 which states:

“58    A barrister must seek to ensure that work which the barrister is briefed to do in relation to a case is done so as to:

(a)    confine the case to identified issues which are genuinely in dispute,

(b)    have the case ready to be heard as soon as practicable,

(c)    present the identified issues in dispute clearly and succinctly,

(d)    limit evidence, including cross-examination, to that which is reasonably necessary to advance and protect the client’s interests which are at stake in the case, and

(e)    occupy as short a time in court as is reasonably necessary to advance and protect the client’s interests which are at stake in the case.”

73. Counsel for the Director sought to rely upon two decisions of this Court in s.5F appeals arising from separate trial applications. Mr Jordan referred to the decision of this Court in Trotter v R [2016] NSWCCA 57, where the Court was not satisfied that error had been demonstrated on the part of the primary Judge in refusing to order separate trials. The appellant in Trotter v R was charged with one drug supply offence only, unlike her co-accused (largely members of her own family) who were charged in the same indictment with a range of other drug supply offences. In this way, Ms Trotter was an accused in a lengthy trial where a relatively small part of the evidence was concerned directly with the charge against her. The Court made clear (at [53]) that a substantial part of other evidence in the trial was admissible to prove the nature of the substance that Ms Trotter allegedly supplied. Further, and importantly, this evidence was relevant as well to establish the joint criminal enterprise that the Crown sought to prove against Ms Trotter and the other accused with respect to the supply of cocaine.

74. Trotter v R may be distinguished from the present case. Here, the prosecution seeks to adduce evidence relevant to the first count against the Respondent only on the issue of the identity of the substance, and not because of any alleged joint criminal enterprise said to exist between the Respondent and the alleged conspirators in the first count.

75. Counsel for the Director placed particular reliance, as well, upon the decision of the Court of Criminal Appeal in R v Henry, where an appeal was allowed (in part) from an order for separate trials. Nettle AJA accepted that a number of telephone conversations between co-accused would be admissible as well against the person in whose favour an order for separate trials had been made (Mr Gravett) and that the primary Judge had erred in reaching a contrary view. After explaining this approach (at [32]-[36]), Nettle AJA said at [37]:

“In so saying, I am of course conscious of the need to avoid transgressing upon a trial judge’s exercise of discretion simply on the basis that I take a different view as to the manner in which it should be exercised. But it seems to me that the difference here is that the judge apparently failed to take into account the evidence of telephone calls between King and Henry to which Gravett was not party but which is unarguably admissible against Gravett, and thus to some extent may implicate him whatever criminal or other activity was the subject of those discussions. In my view, that amounts to an error which vitiates the exercise of discretion and creates a need for it to be exercised afresh. On that basis, I would uphold Ground 3.”

76. In my view, the Director derived no assistance from this decision in the present appeal. Here, it cannot be said that there is evidence of telephone calls between third parties which is “unarguably admissible” against the Respondent and “thus to some extent may implicate him whatever criminal or other activity was the subject of those discussions”. Neither at first instance, nor before this Court, has the Director identified evidence to make good such a proposition.

76. The Director is not assisted in this appeal by anything said in Trotter v R and R v Henry.

77. It was open to the primary Judge to have regard to the likely cost to the Legal Aid Commission if the Respondent was to be represented for the duration of a joint trial with an estimate of two-to-three months. Courts have referred to the conservation of costs as being a relevant factor in determining a separate trial application: Symss v R at [68] (at [47] above). Although this concept has been understood ordinarily as concerning the costs to be met by the State and prosecution for two trials rather than one, there is no reason to confine this factor to such circumstances. The financial demands upon the Legal Aid Commission with respect to the conduct of criminal trials in this State are well known. Courts are well aware that there is not an open-ended or unlimited fund available for representation of legally aided persons before the criminal courts.

78. In this case, it was a relevant factor for the primary Judge to consider that a joint trial would involve the legally aided Respondent being represented at a trial extending for two-to-three months as opposed to a separate trial which, properly conducted by counsel for the prosecution and defence (see [69] and [72] above), should occupy perhaps two weeks. This was of particular relevance because the prosecutor had made a submission in the District Court that a separate trial of the Respondent would effectively duplicate the trial of the alleged conspirators (see [37] above). Her Honour’s observation that the parties could discuss the manner in which evidence was to be adduced at a separate trial of the Respondent reflected the expectation that counsel would act in accordance with their professional duties. The expense to the community via the Legal Aid Commission was a factor to be taken into account on the application: R v Quami and Ors (No. 3) [2016] NSWSC 15 at [124]. As the primary Judge observed, this aspect was not a decisive feature, but it remained a relevant factor to be considered in the exercise of discretion involved on an application for a separate trial.

79. Before concluding this judgment, it is appropriate to make a final observation. At one point in submissions for the Director before this Court, the argument came close to an assertion that the dismissal of this appeal would give rise to difficulties in other cases where an alleged small participant (in a large drug importation enterprise) sought to be tried separately from other persons alleged to be part of that enterprise. Having raised that topic, counsel for the Director understandably drew back from a “flood gates argument” (T14, 21 April 2017). The decision on this appeal relates to the particular facts and circumstances of this case and involves the application of well-known principles. The Court has not purported to lay down any new principle or approach with respect to separate trial applications generally.

80. The Director has not demonstrated error on the part of the primary Judge in the order made for separate trials.

81. It was for these reasons that I joined in the order of the Court made on 21 April 2017 dismissing the appeal from the order for a separate trial of the Respondent.

82. FULLERTON J: I gratefully adopt and endorse the reasons given by Johnson J for joining in the order made on 21 April 2017 that the Director's appeal under s.5F(2) of the Criminal Appeal Act 1912 be dismissed.

83. ADAMSON J: I agree with Johnson J.

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Amendments

13 September 2018 - coversheet - publication restriction notation removed

Decision last updated: 13 September 2018