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

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R (Cth) v Lipton

Details

AGLC: R (Cth) v Lipton [2019] NSWSC 372
Case: [2019] NSWSC 372
Decision Date: 05 April 2019

CaseChat Overview and Summary

The Commonwealth brought proceedings against three accused persons for conspiracy to import border controlled drugs. The three accused applied for separate trials, arguing that the evidence against one of them was significantly weaker than that against the other two, and that a joint trial would be prejudicial to the weaker case. The application was heard in the Federal Court of Australia. The court was required to determine whether there was sufficient evidence to prove the existence of a conspiracy, and whether the evidence against one accused was so weak that a joint trial would be prejudicial. The court also had to consider the cost and convenience of separate trials.

The court found that the evidence was sufficient to prove a conspiracy and that there was no significant difference in the evidence against the three accused. The court noted that the co-conspirators' rule, which allows for the admission of statements made by one conspirator to be used against another, applied in this case. The court found that there was no likelihood of prejudice to the accused in a joint trial and that the cost and convenience of separate trials outweighed any potential prejudice. The court refused the application for separate trials.

The Federal Court of Australia found that the evidence was sufficient to prove a conspiracy between the three accused persons, and that there was no significant difference in the evidence against them. The court held that the co-conspirators' rule applied, and that a joint trial would not be prejudicial to the accused. The court also found that the cost and convenience of separate trials did not justify the separation of the trials. The application for separate trials was refused.

Orders