R (Cth) v Lipton

[2019] NSWSC 372

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R (Cth) v Lipton [2019] NSWSC 372

Hearing dates:

28 March 2019

Date of orders:

05 April 2019

Decision date:

05 April 2019

Jurisdiction:

Common Law - Criminal

Before:

Wilson J

Decision:

The application for a separate trial is refused

Catchwords:

CRIMINAL PROCEDURE – trial of three accused persons for conspiracy to import border controlled drugs- application for separate trial – whether evidence against one accused significantly different to, and weaker than that against co-accused – question of prejudice to accused in joint trial – evidence to prove conspiracy – co-conspirators’ rule - question of cost and convenience of separate trials – application refused

Legislation Cited:

Criminal Code 1995 (Cth)

Drug Misuse and Trafficking Act 1986 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39

Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105

Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20

Madubuko v R [2011] NSWCCA 135; (2011) A Crim R 249Mulcahy v The Queen (1868) LR 3 HL 306

Osman v R [2006] NSWCCA 196

R v Baartman (unreported, Court of Criminal Appeal 6 October 1994) 

R v Dellapatrona & Duffield (1993) 31 NSWLR 123

R v Fernando [1999] NSWCCA 66

R v Glennon (1992) 173 CLR 592; [1992] HCA 16

R v Lisoff [1999] NSWCCA 364

R v Masters, Richards & Wunderlich (1992) 26 NSWLR 450

R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported) 

R v Oliver (1984) 57 ALR 543

R v Oliver;R v Annakin & Ors (1988) 37 A Crim R 131

R v Pham [2004] NSWCCA 190

Symss v R [2003] NSWCCA 77

Tripodi v The Queen 104 CLR 1; [1961] HCA 22

Verma v R (1987) 30 A Crim R 441

Webb and Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30

Category:

Principal judgment

Parties:

Regina (Crown)
Richard Lipton (Accused)

Representation:

Counsel:
S Howell (Crown)
M Johnston SC / K Averre (Accused)

Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
Sankey Legal (Accused)

File Number(s):

2016/387604

Publication restriction:

Judgment previously restricted pending finalisation of all co-accused trials and related appeals. Anonymised and/or redacted to excise any matters the subject of a non-publication order pursuant to s 7 of the Courts Suppression and Non-Publication Orders Act 2010 (NSW).

Judgment

1. HER HONOUR: On 7 September 2018 Richard Lipton (“the applicant”) was jointly arraigned with Jonathan Cooper and Stuart Ayrton (“the co-accused”) before this Court on an indictment bringing four counts. The indictment charges all three men jointly with counts 1 and 2, offences contrary to s 11.5(1) and s 307.1(1) of the Criminal Code 1995 (Cth) (“the Code”), as follows:

That between 1 September 2015 and 31 March 2016, at Sydney in the State of New South Wales and elsewhere, [the applicant and the co-accused] conspired with each other, Person A, Person C, Joseph D’Agostino, Frank D’Agostino, John Tobin, James Collins, and diverse others, to import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity.

That between 1 April 2016 and 25 December 2017, at Sydney in the State of New South Wales and elsewhere, [the applicant and the co-accused] conspired with each other, Person A, Person C, John Tobin, Graeme Toa Toa, Reuben Dawe, and diverse others, to import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity.

2. Count 3 of the indictment charges Mr Cooper separately with an offence contrary to s 400.5 of the Code of dealing with the proceeds of crime, whilst count 4 charges the applicant separately with an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1986 (NSW), in these terms:

That between 1 September 2015 and 25 December 2016, at Sydney in the State of New South Wales and elsewhere, did supply a prohibited drug, namely cocaine, and the quantity was not less than the large commercial quantity for that drug.

3. All three matters are jointly listed for trial before this Court on 5 August 2019, with an estimate of 8 to 10 weeks.

4. By Notice of Motion filed on 6 November 2018, the applicant seeks an order pursuant to s 21(2)(b) of the Criminal Procedure Act 1986 (NSW) (“the Criminal Procedure Act”), severing his trial from that of his two co-accused. The motion is supported by an affidavit of Danny Sankey, sworn on 6 November 2018.

5. The applicant relies upon the Crown Statement of Facts, together with [REDACTED], to argue that, if tried jointly with the co-accused, he would suffer impermissible prejudice, such that his trial would be unfair.

The Proposed Evidence at Trial

6. An account of the evidence the Crown proposes to lead at trial is summarised in the Crown Statement of Facts, and given more detail in [REDACTED]. Although I have considered each of those documents for the purposes of determining the application for a separate trial, it is not proposed to reproduce their content in any detail, save where that is necessary to consider a particular aspect of the matter. The information is dense and it is not necessary to set it out at length for present purposes.

7. Although there is clearly a great deal of evidence relating to intercepted telephone traffic, including intercepts from the applicant’s service, that material is not before the Court on this application. Neither is any of the other surveillance evidence, whether physical or electronic.

8. Briefly, it is alleged that the applicant and his co-accused were jointly involved, with others, in two discrete conspiracies to import large amounts of cocaine into Australia by ship. The conspiracies have come to be known by reference to the names of the vessels used to facilitate each proposed importation: the Saxon Progress conspiracy, and the Dalrymple II conspiracy. Count 1 of the indictment relates to the former, whilst count 2 reflects the latter.

9. By the time of the applicant’s alleged involvement, there had been earlier and contemporaneous attempts by some of those involved to bring cocaine into Australia, in conspiracies referred to as the Fiji conspiracy, the Eclipse conspiracy, and the Dalrymple I conspiracy. Each intended importation failed.

The Allegations Concerning the Saxon Progress Conspiracy

10. The events concerning the Saxon Progress conspiracy occurred between about 1 September 2015 and 31 March 2016 and involved Person A, Person C, John Tobin, brothers Joseph D’Agostino and Frank D’Agostino, James Collins, the applicant, and the co-accused.

11. The agreement between the conspirators was for the importation of a large amount of cocaine, delivery of which was to be taken at sea using a local vessel, the MV Saxon Progress. In the period of the conspiracy the principle conspirators were in discussion as to matters such as the delivery at sea, the size of the vessel needed for the voyage to collect the drugs, means of communications, how to package and waterproof the drugs, the departure and arrival ports for the drugs, and the quantity of drugs to be imported. Steps were taken to facilitate the importation.

12. The first meeting of the applicant and others to discuss a proposal to import cocaine was arranged in telephone communications that took place on 31 August 2015. On 1 September 2015 the applicant met with the D’Agostino brothers and, the following day, he had a second meeting with Joseph D’Agostino. Separately, Joseph D’Agostino and Person A held discussions, following which, on 5 September 2015, Person A made contact with James Collins to arrange for the charter of a boat, the Saxon Progress. Mr Collins was at that time employed as the Master of the 32.2 metre fishing trawler, flagged in Australia and ordinarily berthed in Victoria.

13. At about this time the applicant told Person C, whom he had known for some years, that he had a contact with access to a fishing boat, and the two discussed using the boat to bring drugs into Australia. Later, the applicant asked Person C if he knew anyone who could supply drugs for the importation, and Person C subsequently introduced the co-accused, Jonathan Cooper, to the conspiracy. Person C was thereafter more actively involved in advancing the conspiracy, but it is the Crown’s case that he acted with the applicant’s knowledge and concurrence, and on his behalf.

14. In September 2015 there were a number of meetings or telephone calls exchanged between the applicant and Joseph D’Agostino, and Joseph D’Agostino and Person A. In late September 2015, Person A was in discussion with Collins about the use of the Saxon Progress, and the logistics involved in its use. Joseph D’Agostino and the applicant were in constant contact in this period and into October 2015.

15. On 10 December 2015 there was a meeting of Person A, Person C, and Frank D’Agostino, in which they discussed the sort of boat required for the importation. Person C acted as the applicant’s representative at this and subsequent meetings.

16. The following day Person A again spoke with Collins about arrangements for the charter of the Saxon Progress, for a period of about two weeks in the middle of January 2016. On 12 December 2015, Person C and Frank D’Agostino met and discussed matters such as the vessel to be used, the use of Blackberry devices for communication, and the amount to be paid the conspirators. Person C told D’Agostino that he would report back to the applicant about the meeting.

17. The applicant later arranged for Blackberry devices for Person C to use, and he and Person C, and the co-accused Cooper, communicated through these devices from time to time.

18. A week later, on 19 December 2015, the same three men, Person A, Person C, and Frank D’Agostino, met to discuss various matters connected with the importation, such as the date of the importation, the boat to be used, and arrangements for bringing the drugs ashore. Frank D’Agostino told Person C that, should he need to speak to D’Agostino, he could contact him through the applicant.

19. Later in December 2015 Frank D’Agostino and Person A had separate discussions about the arrangements, as did Person C and Frank D’Agostino.

20. On 5 January 2016, Person A travelled from Sydney to Hobart to discuss matters connected with the charter of the Saxon Progress with Collins, including payment of $1 million, with $4 million “for the next one”. He returned to Sydney the same day, meeting Person C and Frank D’Agostino the following day to discuss the importation. They discussed a delay in the importation, the originating country for the drugs, how to avoid detection by the Fisheries Authority, and the money to be made, amongst other things.

21. There is evidence that the applicant communicated and met with the co-accused Cooper at around this time, to discuss communications whilst Person C was at sea.

22. Arrangements for the charter of the Saxon Progress continued throughout January 2015, principally between Person A and Collins.

23. On 30 January 2016 Person A, Person C and Frank D’Agostino met in Double Bay and discussed the importation. Person C was able to report that the international boat had been at sea for the previous 2 weeks, and the three discussed packaging of the drugs, the mechanism for transfer at sea, and so on.

24. In early February 2016 James Collins withdrew from active involvement in the importation, as a consequence of diagnosis with a serious illness, for which he needed to start immediate treatment. He did, however, make efforts to find an alternative skipper for the Saxon Progress, and discussed possibilities with Person A during February 2016.

25. Unbeknownst to the conspirators a Panamanian flagged yacht, the Vague A L’ame, was intercepted by the French Navy in French Polynesian waters on 14 February 2016. She was found to be loaded with 610 kilogram blocks of cocaine. The drug was seized and crew were detained.

26. On 17 February 2016 Person A returned to Hobart and met with Collins to discuss crew for the Saxon Progress. On the same day Person A telephoned the co-accused Stuart Ayrton to inquire if he would be interested in well-paid work as skipper or engineer on a voyage. He also spoke to the owner of the Saxon Progress about the charter (on the basis it was for the purposes of discovering or assessing new fishing grounds).

27. On 26 February 2016 Person A had further discussions with Ayrton about acting as skipper for a surveying voyage up the East Coast.

28. The following day Person A, Person C, and Frank D’Agostino met in Double Bay to discuss arrangements. The rough date for the collection of the drugs was then 15 March 2016, and the three men discussed arrangements to take delivery of the drugs and bring them on shore.

29. On 1 March 2016 the co-accused Ayrton travelled from Melbourne to Sydney, where he was met by Person A. The two discussed the purpose of the voyage, with Ayrton agreeing to crew the Saxon Progress. He then returned to Melbourne.

30. On 5 March 2016 Person A, Person C, and Frank D’Agostino met in Double Bay to finalise arrangements. During discussions that day Person C asked Frank D’Agostino if he knew the applicant, referring to him as “the Jewish bloke”. Person C had regularly reported events to the applicant.

31. Person A continued in discussions with Collins about the crew for the Saxon Progress over the next couple of days.

32. On 8 March 2016 Person A and Ayrton separately flew to Tasmania, to meet the Saxon Progress, moored at Triabunna. Each was in discussion with each other and Collins about the arrangements for the voyage.

33. The following day Person A ordered fuel for the Saxon Progress, and Person C flew from Sydney to Hobart, where he and Person A met. The ticket for Person C’s flight to Hobart had been obtained for and provided to him by the applicant, with the ticket issued in a false name. The applicant was aware that the purpose of Person C’s journey to Tasmania was to join the Saxon Progress.

34. Person A subsequently spoke with Ayrton about communications during the voyage. Person C and Person A later travelled to Triabunna, as did John Tobin in a separate trip.

35. The Saxon Progress left Triabunna on the morning of 10 March 2016. Ayrton was in command of the vessel. The following day, having received the co-ordinates for the meeting at sea to take delivery of the drugs, he expressed concern about the location in a text message to Person A. On 12 March 2016 the two discussed the pick-up co-ordinates by telephone. There were difficulties with telephone communication and internet access, and the two discussed the problem on 12 March 2016, and over the next couple of days.

36. On 14 March 2016 the Saxon Progress anchored in Quarantine Bay in Sydney in an attempt to resolve persistent communications problems. Person A went out to the boat by water taxi and handed over some packages to those on board. Ayrton subsequently reported to Person A that the vessel was again on its way.

37. Later that same day Frank D’Agostino, who had become aware from the applicant of the seizure of the Vague A L’ame, called Person A from a public telephone and told him to “get onto whoever it is” and tell them to return to port. Person A later telephoned Ayrton and told him to return to Tasmania. The ship returned to port.

38. When Person C was able to access his Blackberry device with better reception he received a number of messages from the applicant, telling him that the importation had been called off and to return. The applicant had received the information about the seizure of the drugs from the co-accused Cooper. Person C replied to those messages confirming he had received them, and was returning to port. He later sent messages to the applicant to ask what had happened and why the arrangement had been called off.

39. Later, there were discussions between and amongst Person A, Person C, Ayrton, and Frank D’Agostino about what had taken place, and payment for those involved.

40. Person C met with the applicant at a location in Double Bay on his return to Sydney to discuss the failed operation, and the prospects of any future importation. He passed on to the applicant what he had himself been told about the interception of the ship that was to meet the Saxon Progress. Person C also told the applicant that, once he had information about the new job, he would pass the information on. The two agreed that, with respect to the Saxon Progress, they had “fulfilled [their] part of the bargain”.

41. The third charge faced by the applicant, count 5, reflects an allegation that he was to sell or otherwise distribute the cocaine received as payment by Person C and Person A.

The Second Dalrymple Conspiracy

42. The events concerning the Second Dalrymple conspiracy occurred between about 1 April 2016 and 25 December 2016, overlapping with the end of the First Dalrymple Conspiracy, although involving a different group of conspirators, being Person A, Person C and Tobin, Graeme Toa Toa and Reuben Dawe, together with the applicant and the co-accused.

43. The conspiracy was to import about 500 kilograms of cocaine from South America. A large quantity of cocaine was ultimately brought into waters off Sydney to be landed, at which time the conspirators were arrested.

44. On 1 April 2016 Person C and Person A met in a café, with Person C confirming that “they’re ready to go”. The two discussed various matters connected with the importation, such as the location at which the local boat would rendezvous with the international vessel.

45. On 11 April 2016 there was a further meeting of the two men in Berry. There was discussion connected with a proposed importation, including that “it” had left Europe. Person C and Person A met again ten days later where more discussions on the subject were held.

46. Person C met the applicant on 30 April 2016 at Bondi Junction. The two men discussed payment, it seems from the failed Saxon Progress importation.

47. On 2 May 2016 Person C met with Person A, Frank D’Agostino and another man, Darren Mohr, at a park in Double Bay. On 4 May 2016 Person A had some discussions with Ayrton about expenses, the guy who was in France, and it being another couple of weeks before the money came. Jonathan Cooper was in France at the time.

48. On 14 May 2016 Person C and the applicant met at a café, where they discussed “the Captain” and Frank being “squeezed out”. Person C said, “this is the deal [indecipherable] we get our cut, I look after you, Frank and [Person A], that’s his fucking problem”. They discussed “the next thing”, and it being on its way, with Person C in possession of the “co-ords”.

49. On 28 May 2016 Person C and the applicant met again, and discussed money, the fact that Person C referred to the applicant as “the Jew” in discussion with Person A and others, payment for the applicant, and the boat being fifty days away. Person C said that they would pick “it” up and bring “it” back in a month or two. He told the applicant he needed him and his connections to move the gear. They discussed the price and quality of Blackberry devices.

50. Later in May and up to mid-June 2016 Person C met Person A and Frank D’Agostino to discuss the proposed importation and four or five options, including one involving Mr Mohr in Thailand. They discussed finding a boat, and making money, methods of concealment for drugs, and the drugs coming in from the Dominican Republic.

51. Person C and the applicant met on 18 June 2016, after Person C had met up with Person A. The applicant said that he had received updates, and everything was fine, with the delay “standard”.

52. There followed a meeting between Person C and Person A on 25 June 2016, with Person C meeting the applicant the same day, and passing on Person A’s request for more money to the applicant. The applicant responded “we said no”. They spoke about a boat, pick-up, and the middle of July. There was also discussion about moving stuff, and the applicant said he would have to drop his price if the quality was poor.

42. On 2 July 2016 Person C again met with Person A to discuss a person called “Gutterball”, and everything being ready to go for August, with a charter boat to be arranged. Later that morning, Person C met the applicant, and they discussed a drop-off point and a rendezvous on 11 August 2016. Person C suggested organising buyers but the applicant said it wasn’t a good idea yet. There was a discussion about expenses claimed by Person A.

43. Person C met with Person A during the course of July 2016, meeting with the applicant on 23 July 2016, following a meeting with Person A. They discussed something happening in one, two, or three months, and a person referred to as “Gift”, being Joseph D’Agostino, communicating with the applicant directly, including about an “inspector” coming. The applicant referred to someone with a Greek name.

44. On 29 July 2016 Farid Mhennaoui flew into Sydney from Indonesia. The following day Person C met with Person A and told him that “our guy” is here and wanted to inspect the vessel. Arrangements to show the inspector the boat were discussed.

45. On 4 August 2016 Person C and Person A met with Mhennaoui and Jonathan Cooper at Sydney Fish Markets, and Person A showed the others the MV Kaybeanna. There were various discussions between these men, or some of them, during the day, concerning arrangements, including for the transfer of drugs from a boat at sea.

46. The following day the applicant and Person C met at a café and Person C told him about the meeting at the Fish Markets.

47. There followed further meetings in August between Person A and Person C about arrangements for an importation using a commercial vessel. Person A took steps during that period to acquire an ocean going vessel, including making inquiries about a boat in the USA.

48. Meeting the applicant on 22 August 2016, Person C told him that everything would be “right very very soon”, and they were looking to depart at the end of September.

49. On 24 August 2016 Darren Mohr left Australia for Santiago, Chile.

50. On 27 August 2016 at another meeting Person C told the applicant that he was getting updates and it was full steam ahead. There were later discussions between Person C and Person A about a ship, crew, and money.

51. On 31 August 2016 Mohr returned from Santiago, meeting Person A the following day.

52. On 8 September 2016 Joseph D’Agostino was arrested in relation to unrelated drug offences and, on 17 September 2016, the applicant and Person C met, discussing the arrest amongst other topics. The applicant suggested that D’Agostino had nothing on Person C to give to police, and he didn’t think he would give up his (the applicant’s) name in exchange for a lesser sentence. Person C thought otherwise. The applicant thought D’Agostino’s arrest was the best outcome as he was “a train wreck” who would give up names and the gear if caught. They discussed what information he would have about them.

53. Person C told the applicant that there were no updates. They also discussed using Blackberry devices for secure communication.

54. Plans for the acquisition of a boat proceeded, with Person A buying the MV Dalrymple, and arranging to have it brought to Sydney.

55. Person C continued to meet with Person A to discuss arrangements for the importation with each taking steps towards it.

56. On 5 November 2016, after a voyage on the Dalrymple, Person C met with the applicant, complaining about the level of involvement expected of him by others. The applicant suggested he tell them to “go jump”. Person C responded that he had obligations. He said that when he came back, he would “take all their stuff, drop it off […] we’ll have ours left over, come and see you, where do you want yours […]”. The applicant said it was difficult to get reliable people for “projects”, to which Person C responded that the “hands on guys are actually getting a cut, like me, you […]”. The two men discussed payment, and deducting money for sums owed.

57. Person A took steps to arrange crew for the voyage, including securing Ayrton as skipper. Other steps were taken to advance the importation, with Person C purchasing items of equipment for it.

58. On 19 November 2016 Person C again met with the applicant, with Person C telling the applicant that he had been left in charge of the operation whilst Person A took an overseas holiday. He told the applicant he had been buying equipment, and told him that Tobin was to be on the boat.

59. Planning continued, and the Dalrymple ultimately sailed in December 2016, and took possession of a cargo of cocaine at sea. On the return of the vessel to Sydney on Christmas Day 2016, Person C was apprehended, as was Person A. Other arrests followed.

60. Ayrton was arrested with other crew of the Dalrymple on 25 December 2016 when she was boarded by police some miles out to sea off Sydney. He refused to be interviewed. Cooper was arrested later that night at his home. He too refused to be interviewed.

61. The applicant was arrested the following day. A search of his home revealed documents listing Blackberry user names, an EFTPOS receipt in Person C’s name, a number of empty Blackberry boxes, and a number of mobile telephones. He refused to be interviewed.

62. Some 501 kilograms of cocaine was seized from the Dalrymple.

The Respective Involvement of the Applicant and Co-accused – in Summary

74. In summary, the involvement of the applicant and the co-accused with whom he has been arraigned is as follows.

75. For the Saxon Progress conspiracy, the applicant introduced Person C to Joseph D’Agostino, and facilitated meetings between Person C and others during the planning stages, together with providing advice and assistance with communications and payment. Ayrton was to skipper the vessel for the voyage to rendezvous at sea and collect cocaine, and for the return journey carrying the cargo. Cooper was financier, and the ultimate recipient of the cocaine.

76. For the Dalrymple II conspiracy, the applicant again provided support and advice to Person C, for an expected payment. Ayrton was to skipper the Dalrymple for her voyage to collect the cocaine and return it to Australia. Cooper was involved as financier and recipient.

The Principles Relevant to a Separate Trials Application

77. Subject to the provisions of s 29(3) of the Criminal Procedure Act, s 29(2) allows for two or more accused persons to be tried together:

29   When more than one offence may be heard at the same time

(1) […]

(2)  A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances:

(a)  the accused persons and the prosecutor consent,

(b)  the offences arise out of the same set of circumstances,

(c)  the offences form or are part of a series of offences of the same or a similar character.

(3)  Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

78. The application has been made pursuant to s 21(2)(b) of the Criminal Procedure Act, which provides for a court to order a separate trial (although, more usually, with respect to counts against an accused on indictment):

21   Orders for amendment of indictment, separate trial and postponement of trial

(1)  […]

(2)  If of the opinion:

(a)  […], or

(b)  that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,

the court may order a separate trial of any count or counts of the indictment.

79. Ordinarily, where the Crown alleges that two or more accused persons have committed a crime or crimes jointly, prima facie there should be a joint trial: Webb and Hay v The Queen(1994) 181 CLR 41 at [88]-[89]; [1994] HCA 30. There are strong reasons of principle and policy that this should be so.

80. It is desirable that the various people allegedly concerned in one crime are dealt with in the same litigation: R v Oliver (1984) 57 ALR 543 at [547]. Joint trials further the public interest in the efficient and timely disposition of trials, conserve costs, and minimise the inconvenience that would be occasioned to witnesses in attending more than one hearing: R v Oliver;R v Annakin & Ors (1988) 37 A Crim R 131at [138]; Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105 at [47]. Proceeding in that way also avoids the prospect of inconsistent results: Symss v R [2003] NSWCCA 77 at [68].

81. Where an accused person seeks to have his or her trial severed from that of others alleged to have been involved in the same criminal enterprise, he or she bears the onus of establishing that a joint trial carries a risk of impermissible prejudice, which cannot sufficiently be cured by a direction to the jury: Verma v R (1987) 30 A Crim R 441 at [445], per Hunt J (as he then was), with whom Wood and Campbell JJ agreed.

82. An order granting or refusing a separate trial application is a discretionary decision for the court; it is ultimately a question of ensuring that an accused person receives a fair trial, weighing in the balance other issues such as cost and convenience.

83. The circumstances in which it may be appropriate to order a separate trial were considered by Hunt J in the frequently cited decision of R v Middis, an unreported decision of this Court of 27 March 1991, approved in R v Baartman, unreported decision of the Court of Criminal Appeal 6 October 1994, and countless others. In Middis, his Honour said,

Briefly, the relevant principles are that:

1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and

2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and

3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,

a separate trial will usually be ordered in relation to the charges against the applicant.

The applicant must show that positive injustice would be caused to him in a joint trial.

84. The phrase “immeasurably stronger” in the third principle referred to by his Honour has been said to mean significant, though incommensurable: R v Pham [2004] NSWCCA 190 at [48]; Madubuko v R [2011] NSWCCA 135; (2011) A Crim R 249 at [28].

85. Later in Middis Hunt J said:

[…] 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.

The Submissions of the Parties

86. The applicant contends that, if tried with the co-accused, he will be unfairly prejudiced. He submits that each of the three principles referred to in Middis (and extracted at [83] above) are present in his case and, further, there may be a potential for any jury to be discharged [on the application of a co-accused] as a consequence of the admission of evidence relevant to him, but which is prejudicial to the co-accused.

87. [REDACTED].

88. [REDACTED].

89. [REDACTED].

90. The case against the applicant, it is submitted, is much weaker than that against either Cooper or Ayrton, with the stronger evidence against the co-accused prejudicing his case.

91. The Crown disputes the applicant’s characterisation of the case against him as significantly weaker than that against the co-accused. [REDACTED]. It refers to the co-conspirators’ rule.

92. The Crown submits that the applicant has not established that positive injustice would be occasioned to him by a joint trial, and considerations of the public interest in a joint trial outweigh any question of prejudice to the accused, which is not, in any event, impermissible prejudice.

Consideration

93. There will be a criminal conspiracy where two or more individuals agree to do an unlawful act, or to do an otherwise lawful act by unlawful means: Mulcahy v The Queen (1868) LR 3 HL 306 at [317], per Willes J. The agreement to engage in the common unlawful enterprise is at the heart of a conspiracy.

94. A conspiracy is identified by both subject matter and purpose. Proof of it frequently requires the Crown to call evidence of acts done and things said by the conspirators in furtherance of its object, as evidence against each, since there is rarely direct evidence of the agreement reached by the conspirators. This is generally referred to as the co-conspirators’ rule: Tripodi v The Queen 104 CLR 1; [1961] HCA 22. In Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 the High Court said, at [93], that the agreement:

[…] can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.

Thus it was said in Tripodi that proof of the crime of conspiracy “may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment” [footnote omitted].

95. At [94]-[95] the Court commented further on the issue of proof of an accused person’s participation in a conspiracy, and the co-conspirators’ rule.

However, it is not in all cases that evidence of the separate acts of the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation. Evidence of the acts or declarations of others led for this purpose will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations. It would be excluded as hearsay or its equivalent were it not admissible upon some other basis.

That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: Tripodi. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime.

The implied authority on the part of one conspirator to act or speak on behalf of another will only arise if the latter is part of the combination. Evidence of the acts or declarations of the former may, however, be led to prove that very fact [footnote omitted].

96. In these principles is much of relevance to determining the present application.

97. [REDACTED].

98. Whilst there is a potential for evidence broader than the applicant’s involvement to prejudice his case, the fact of prejudice is neither certain nor inevitable.

99. [REDACTED].

100. [REDACTED].

101. [REDACTED].

102. Directions to the jury should be capable of addressing the sort of prejudice which is accepted as ordinarily arising where a joint trial is held, and the Court must proceed on the basis that the jurors will approach their task conscientiously, and do as they are instructed to do: R v Glennon (1992) 173 CLR 592; [1992] HCA 16, per Mason CJ and Toohey J at [603], per Brennan J at [614]; Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20at [247]-[248]; R v Lisoff [1999] NSWCCA 364 at [49].

103. It is acknowledged that the applicant will bear greater costs, and spend greater time in court, if tried jointly than if tried alone; that is axiomatic. However, since the Crown would lead much of the evidence at a trial of the applicant alone that it would lead at a joint trial, to establish the object and scope of the conspiracy as well as the applicant’s alleged role in it, the question of unnecessary expenditure of resources is not of great significance in the circumstances of this matter.

104. Having regard to that feature of the forthcoming trial, and the application of the co-conspirators’ rule, it cannot be said that the applicant’s case is significantly different to the cases against the co-accused. Each of the three men had different roles to play in furtherance of the conspiracy, but that is the nature of a conspiracy. One conspirator may be more involved in the execution of the conspiracy, as Ayrton is alleged to have been; one may be more involved in finance, as Cooper is alleged to have been; another may be more involved in the logistics; as the applicant is alleged to have been as a person with knowledge of the use of encrypted Blackberry devices. That does not, however, make the case against one or the other significantly different. Neither does it make the case against one or the other significantly weaker. That is particularly so where the acts of each may be relevant and admissible in the case against the other.

105. Each of the three accused men is alleged to have reached an agreement with each other and other men, even in circumstances where not each of the individuals had direct dealings with each other. The applicant is alleged to have had direct contact with only Joseph D’Agostino, Frank D’Agostino, Person C, and the co-accused Cooper, and none at all with Ayrton, but that too is often the nature of a conspiracy. It does not alter the basic issue at trial: whether the Crown can prove to the criminal standard that each of the accused joined an agreement to import a large quantity of a border controlled drug, and how that allegation is proved.

106. To discharge that burden the Crown will rely upon much the same evidence in a separate trial of the applicant as it would in a joint trial of him and the co-accused. If the applicant’s trial were to be severed, there would be some saving in time and costs to him, but considerable increase in the expenditure of resources over all; for the court in hearing two jury trials rather than one, and for the community in bearing all of the greater associated costs of two criminal trials. There would be significant duplication of evidence [REDACTED]. There is some evidence directly relevant to both the charges against the applicant and the co-accused Cooper that would have to be given twice.

96. As was observed in Osman v R [2006] NSWCCA 196 at [22],

the interests of justice involve more than the interests of the accused […]the interests of the Crown, the witnesses and the public must also be considered.

108. There is also the question of the desirability that those engaged in the same enterprise have returned against them the same judgment, an objective not met by severing the applicant’s trial from that of the co-accused.

109. It is necessary for the Court to strike a balance between the public interest in related matters being jointly tried, and the interests of the applicant in receiving a fair trial: R v Dellapatrona& Duffield (1993) 31 NSWLR 123 at [133]; R v Fernando [1999] NSWCCA 66 at [212].

110. Having considered those matters raised by the parties, I am not satisfied that the applicant has discharged the onus he bears of demonstrating that a separate trial is warranted in the interests of justice. I am not persuaded that he will face positive injustice if tried jointly.

111. However, should there be any significant difference in the evidence the Crown seeks to lead at a joint trial to that here considered, it is open to the applicant to renew his application. This application has been determined at a relatively early stage, and at a time when, the Court was told, Mr Lipton has not been fully served with the whole of the Crown’s brief of evidence. If anything in the unserved evidence materially alters the position, or if, during the trial, evidence falls from witnesses in a way not expected that has the same affect, a further application is not foreclosed.

orders

112. The order of the Court is:

1. The application for a separate trial is refused, and the Notice of Motion of 6 November 2018 is dismissed.

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Amendments

07 November 2024 - Typographical amendment to coversheet.

Decision last updated: 07 November 2024