R v Burns, Thompson, Collins, Sexton & Savenkoff No. Sccrm-99-85, Dccrm-98-638 Judgment No. S285

[1999] SASC 285

R v BURNS, THOMPSON, COLLINS, SEXTON AND SAVENKOFF
[1999] SASC 285

1      PRIOR J           Late last year the trial of five persons jointly charged with being knowingly concerned in the importation of a prohibited import:  s233B(1)(d) Customs Act 1901 (Cwth) was set for Tuesday, 15 June against an estimate given at pre-trial hearings that the determination of a number of preliminary issues and the trial would last six weeks. 

2      When the matter was called on for trial, the accused Thompson, demurred to the charge, claiming that the provisions of s233B are invalid by virtue of the provisions of s80 of the Commonwealth Constitution.  The demurrer was overruled.[1]  Thompson then pleaded guilty to the charge.  He has been remanded for sentence.  Another accused, Collins, has maintained the same demurrer with his plea of not guilty.  Burns terminated his instructions to solicitors and counsel.  Sexton had been unsuccessful in an application for a stay of the proceedings against him on the ground that he was unable to afford counsel.[2]  The case was adjourned to enable the two accused then without counsel to seek legal advice and retain counsel.  Two days later, counsel indicated the hope that he could appear for Sexton the following week.  The matter was adjourned again. 

[1]       See R v Cheng; R v Chan; R v Cheng ([1999] SASC 175, CCA)

[2]      Dietrich v R (1992) 172 CLR 293

3      In the following week, counsel for Collins proceeded with an application for a separate trial.  The court was then informed that counsel previously retained for the accused Burns, was now retained again.  Pre-trial applications on behalf of Burns were therefore fixed for hearing on the ninth day set aside for the trial in conjunction with other pre-trial applications lodged by the other accused.  On that day counsel appeared and sought a further adjournment to enable submissions to be prepared with respect to particulars then sought on the prosecutor’s intended use of evidence against the accused on the basis of a joint enterprise, particularly utterances in the absence of a particular accused.  The applications of Sexton and Savenkoff for separate trials were then heard.  Counsel reserved the right to adopt the arguments foreshadowed by Burns’ counsel.  In the third week submissions were made on behalf of Burns.  Counsel for Collins requested particulars with respect to the intended use of acts or statements of other accused against Collins.  The prosecution identified the material that would be relied upon as against Sexton and conceded that the case against Savenkoff left little room for the invocation of the Tripodi[3] principles against him.  Burns served a subpoena for the production of documents by the Federal Police.  Counsel appeared to challenge production of material on the ground of public interest immunity.  That matter was listed for hearing in the fourth week.  It was then discharged when the argument on the particulars sought by Collins was heard, counsel reserving the right to issue a fresh subpoena.

[3]      Tripodi v R (1961) 104 CLR 1

4      Particulars of the s233B(1)(d) offence alleged are that between 14 July and 1 November 1997, the accused were knowingly concerned in the importation of 35kgs of cannabis.  There are two other counts on the information.  In the second, the fifth accused Savenkoff is charged in the alternative with possessing a prohibited import.  The third count is against a sixth person named Bell.  The prosecution did not oppose an order that Bell’s trial be conducted separately from the trial proposed for the other five persons named on the information.  An order has been made.  Bell’s trial is scheduled for hearing in the District Court in August.  That trial will now precede any trial of any of these accused given the delay, time taken in preliminary issues and the further time required for any trial or trials of these four accused.

The Separate Trials Applications

5      In R v Collie, Kranz and Lovegrove[4], the Court of Criminal Appeal affirmed previous authority of this Court, R v Harbach.[5]  In that case it was pointed out that when accused persons are charged with committing a crime jointly, “prima facie there should be a joint trial.”  This may occur, “notwithstanding that one result will be that evidence inadmissible against one of the accused, though admissible against (others) will be before the jury.”  It is the duty of the trial judge to make plain to a jury what evidence is inadmissible against any of the accused and to warn them they must not use such evidence against that accused.  The law assumes that a jury is capable of understanding and willing to heed such admonitions.

[4] (1991) 56 SASR 302

[5] (1973) 6 SASR 427 at 432

6      King CJ referred to his own remarks in R v Glover.[6]  There may be circumstances in a particular case for the prosecution that are so prejudicial to a particular accused “that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together”[7].  His Honour also referred to the decision of the High Court in Darby[8] where, in a case involving a charge of conspiracy, four justices, in a joint judgment, expressed the view that separate trials should be ordered where evidence admissible against an accused is significantly different from the evidence admissible against another.

[6] (1987) 46 SASR 310 at 312

[7] (1987) 46 SASR 310 at 312

[8]      R v Darby (1982) 148 CLR 668 at 678

7      King CJ said that he did not read that passage as affecting the principles discussed in Glover and Harbach.  His Honour acknowledged that where evidence against one accused is significantly different from that adduced against another, it may be appropriate to order a separate trial.  As His Honour put it, “the difference in the evidence admissible against each accused may be an important factor in the exercise of the discretion as to whether to order separate trials.”[9]  That being said, King CJ said that he did not consider Darby’s case to in any way modify, “the accepted principles with respect to joint trials and particularly the principle that ordinarily persons accused of committing a crime jointly ought to be tried jointly."  Cox J referred to Darby in his judgment.[10]  He agreed with what the Chief Justice said about it.  In his view, what was then said could not be read as abrogating the established principles relating to separate trials.  In joint trials, not being conspiracy trials, Cox J observed that what was likely to matter was “not so much that there are significant evidential differences but that certain evidence admissible against one accused but not against the others might have a tendency to prejudice the others.”  What is of importance is that a marked quantitative imbalance in the prosecution case against different co-accused, whether there is also prejudicial evidence of the more obvious kind or not, “is one of the matters to be taken into account; occasionally, but not often, it may be decisive.”  In the end, it is a matter of weighing competing considerations and deciding what the interests of justice require.  Since Darby the High Court has agreed with what King CJ said in Collie.[11] 

[9] (1991) 56 SASR 302 at 310

[10] (1991) 56 SASR 302 at 321

[11]     Webb v R (1994) 181 CLR 41 at 89 and 56

8      In this case, I think the accused are not jointly charged with the same offence as much as that they all stand charged with being knowingly concerned in the same incident.  Their differing involvements are said to establish each as being knowingly concerned in the same importation.  On that approach, perhaps a single joint charge is not as correct as a joinder of separate counts in the same information in which each accused is being knowingly concerned in differing ways in the same act of importation.  Nevertheless, the question with respect to joint trials is the same when, as here, the accused participated in the same event and are charged with offences arising out of an incident in which it is alleged that they have all participated.[12]

[12] (1987) 46 SASR 310 at 312

9      The court must consider what evidence might be inadmissible against particular accused.  The presence of such evidence is a factor militating in favour of separate trials.[13]  This goes to the question whether circumstances surrounding the case for the prosecution are so prejudicial to a particular accused that a separate trial is imperative, remembering that “generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together.”[14]

[13]     Deane J in Webb 181 CLR 41 at 80

[14] (1987) 46 SASR 310 at 312

Collins

10     The evidence sought to be led against the accused Collins was said to be significantly different from that sought to be led against the other accused.  At all relevant times Collins was in custody, serving a sentence of imprisonment.  He is alleged to have been involved in the charge by arranging for money to be paid into his solicitor’s trust account and then paid out in favour of persons involved in the consignment of plywood from South Africa by Zozo Import Export Company.  The prosecution seeks to adduce evidence of a shipment with respect to which it cannot adduce direct evidence as against Collins’ involvement at all.  It says that this evidence is nonetheless admissible as against Collins, as it serves to explain the arrangement of a second shipment to which he is said to have been a party.  It was in the second shipment of plywood that the cannabis was concealed within a plywood box.  It was discovered by police when the vessel Don Giovanni arrived at Port Adelaide in October 1997.  The container was consigned to a warehouse of Intracon Pty Ltd at Holden Hill.

11     Police had been alerted to a series of suspect overseas financial transactions involving the accused Burns and Intracon of which the accused Sexton was then a director.  These transactions occurred in October 1997.  They involved disbursements to the Netherlands and Durban.  There were payments to Zozo from Collins’ trust account arranged by his solicitor in company with the accused Burns on 16 October.  On that occasion, funds were also transmitted to Thompson, then in Amsterdam.

12     On Friday, 17 October, the prosecution alleges Burns went again to the same bank to amend the transfers arranged the day before.  Burns presented a further $100,000 cash in the presence of Collins’ solicitor, to be credited to the accused Collins in his solicitor’s trust account.  Burns then instructed the bank to send funds to Thompson in Amsterdam.

13     The prosecution alleges that the arrangement to consign plywood was a sham, lacking commercial worth and nothing more than a shield for a deliberately planned importation of cannabis.  It is also the prosecution’s case that there was a third shipment planned but frustrated by police intervention.

14     The October payments all occurred whilst the Don Giovanni was in transit.  Counsel for Collins emphasised that the monies paid to the credit of Collins in his solicitor’s trust account occurred after the vessel had already called at Fremantle before proceeding on to eastern states’ ports and then to Adelaide.

15     The prosecution’s case was that, at the time when police observed the accused Burns and Savenkoff at the Holden Hill warehouse with the consignment from the Don Giovanni, there was still plywood from the first shipment on those premises.  The prosecution case is that the local shipping agent was paid for the costs associated with the delivery of the plywood and cannabis by payments shared by Sexton, Burns and Thompson.  As for the export company Zozo, the prosecution’s case is that that company was paid for what it sent by Burns, Collins and Sexton’s company Intracon Pty Ltd. 

16     The prosecution’s case includes observations of the unloading of the shipment to Intracon from Zozo by Burns and Savenkoff on 30 October.  Film and audio of the activities of those two accused at the Holden Hill site is to be tendered consistent with the prosecution case that both Burns and Savenkoff were expecting to receive drugs within the shipment of plywood.  The prosecution case includes observations of Burn’s car leaving the warehouse and going to a house where a quantity of the cannabis marked by the police was later found.  Ten of the 18 packages of cannabis unearthed by police at the wharf were found in the house to which Burns was followed. Further drugs were found in the boot of Burns’ car.  All these packages are identified by markings placed on the packages by police when they first discovered the drugs at Port Adelaide.  The prosecution alleges that other packages from the container were placed in Savenkoff’s car and taken interstate.

17     The prosecutor claimed that there is reasonable evidence of a joint enterprise in relation to the charge so that statements of the other accused, communications and notes are admissible against each accused.  The statement made in opening may have been misunderstood, perhaps explaining the applications for particulars.  The prosecution accepts that it must identify some evidence of confederation or pre-concert between one accused and another before acts or words of another in that accused absence become admissible against that accused.[15]  Particulars given with respect to the application of the Tripodi principle as against Collins acknowledge that the prosecution cannot identify any evidence that Collins was in any contact or confederation with other accused before 20 September 1997.

[15]     Tripodi v R (1961) 104 CLR 1 at 6 - 8; Ahern v R (1988) 165 CLR 87 at 99, 104 - 105

18     Collins asserts that the payments in and out of his trust account are with respect to the sale of a large debt he was owed by a company, Burns having purchased that debt.  The prosecution’s case is that this is not a true statement of affairs, particularly in light of the fact that, at the relevant time, there were proceedings instituted in the District Court by Collins with respect to the alleged debt, the defendant in those proceedings denying that any money was owed to Collins at all.  The prosecution’s case is that no person would sensibly purchase such a contested debt, certainly not to the full value of a contested debt.  The prosecution says that Collins’ trust account was being used as a conduit for the common purpose of importing cannabis, with Burns controlling where the money went and that the use of a solicitor’s trust account would not have been necessary if Burns’ payments were legitimate.  The prosecution claims that the explanation given by Collins in relation to the payments is also suspect.  As to a payment of $20,000 sent to Zozo Imports on 16 October 1997, in a statement to police Collins said that this related to someone having a sick wife, yet there is evidence of a separate payment to a hospital in Mombassa inconsistent with the need for both payments for the same purpose.  The evidence the prosecution seeks to rely upon has to overcome certain limitations upon the proper use of a substantial quantity of material.  Suffice to notice the potential difficulties and possible solutions at this stage.[16]

[16]             See R v Romeo (1982) 30 SASR 243 at 260 - 267; Evidence Act 1938, eg, s 45, s 45a, s 45b and s 59j

19     The prosecution says that it is of particular significance that Burns visited Collins when he was in custody on 20 September 1997, a few days before the first payment went into the trust account of Collins’ solicitor.  Again, that date is said to be relevant against the objection taken in the course of submissions on behalf of Collins that evidence as to payments being made after the consignment was already in Australia was inconsistent with the criminal participation by Collins.

20     The prosecution also has evidence of telephone contact between some of the accused.  In particular, with respect to Collins it referred to contact between Collins and Sexton against Collins’ assertion that he had done swimming pool business with Sexton some 20 years ago.  Against the denial by Collins of being involved in any joint enterprise or common purpose with the other accused, the prosecution points to meetings Collins had with Thompson and Burns, whilst Collins was in custody, on a number of occasions in 1998, when the matter the subject of this charge was discussed between them.  In particular, reference is made to two exchanges, one on 27 February, the other on 18 March 1998.  The prosecution also relies upon evidence which it says establishes that Collins was assisting Thompson to prepare documents to enable him to get out of the country, something plainly inconsistent with the asserted lack of knowledge or involvement in the matter the subject of the charge.

21     Counsel for Collins submitted that whilst the general principle was that accused jointly charged should be tried together, there was good cause to order a separate trial of Collins because much of the evidence did not relate to him, so much so that to have that evidence before the jury as against Collins would mean that he could not receive a fair trial.  It was said that no direction could cure what would be highly prejudicial evidence being led against Collins, the prosecution’s case being one of circumstantial evidence, more against Sexton, Thompson and Burns than against Collins, particularly in view of the fact that the use of monies for the consignment the subject of this charge is not properly related to payments through Collins’ trust account at times that have the consignment out of Durban on 6 October and into Fremantle on 16 October.  Counsel says that evidence of Thompson and Sexton being in South Africa is of no relevance to any of the evidence properly admitted against Collins.  It was submitted that there was nothing in the evidence to suggest that Collins was aware of the first import.  It is put that this is not a case where the prosecution can directly link payments to the importation the subject of the charge; Collins could not receive a fair trial if his trial proceeds with the other accused because so much of the evidence relates to the first shipment with respect to which there is no evidence of Collins’ involvement.  Further, the case against Collins is said to be “different in substance” than that against the other accused.  The other accused are persons said to have been involved in trade and importation.  Collins was someone in custody giving instructions to his solicitor with respect to the receipt and payment of money.  The payment of money is said not to be sufficient to link it with the other accused and other activities said to be relevant to the charge.  If a joint trial were to occur, the necessary directions to the jury would be “quite complex”.  Counsel submitted that a separate trial of Collins would not be of the duration involved in the trial involving the other accused.  It was said that the evidence of the first transaction would not be led.  Collins was described as a late-comer, if anything, so that it would be unfair to insist upon a joint trial.  The evidence of the first transaction was said to be highly prejudicial.  Collins could not receive a fair trial if that evidence was led against three jointly tried with him.  Any  evidence admissible against Thompson, Burns and Sexton, on the basis that they were shown to be acting together with a common plan, would be prejudicial against Collins.  No direction would avoid that risk.  Further, it was said that the evidence as against Savenkoff and Burns as to what they did on 30 October 1997, was not evidence properly admissible against Collins.  However, there was a real risk that a jury would be swayed to use that evidence improperly against Collins.

22     I am not satisfied that the interests of justice require that there be a separate trial for Collins.  The evidence said to be inadmissible against him may be properly described as not directly implicating him but still part of “the whole picture” properly presented.[17]  The prosecutor says that on any separate trial of Collins the evidence of the first shipment would be admissible.  That material would relate to the circumstance surrounding the commission of the offence charged and properly before the jury.  Assuming that submission is correct, that material does not seem to be “so prejudicial” against Collins that a separate trial is “imperative”.[18]  It is part of the factual circumstances surrounding the shipment that contained the material the subject of the present charge.  I reject the submission that the prosecution’s case at a joint trial contains highly prejudicial evidence against Collins.  There is no proper basis made out to depart from the general rule.  Directions can be given as to the admissibility and proper use of evidence against particular accused, including the limitations applicable to evidence sought to be admissible against Collins by any proper application of the Tripodi principle.  That matter is dealt with further in conjunction with the response to submissions put on behalf of Burns and later adopted by counsel for Collins.

[17]     R v Harbach (1973) 6 SASR 427 at 433

[18] (1987) 46 SASR 310 at 312

Sexton

23     For Sexton it was put that a separate trial should be ordered given significant differences in the evidence admissible against him.  Reference was made to the period of time referred to in the charge.  The case against Sexton was said to be one dependent upon circumstantial evidence whereas in relation to other accused the evidence was more direct.  When, on the prosecution case, Burns and Savenkoff were seen to be taking things from the container at Intracon’s Holden Hill warehouse, Sexton was overseas.  Evidence of financial dealings between Collins and Emacourt Autos was said not to directly relate to Sexton nor be admissible against him.  It was also said that evidence of the sighting of Burns’ car, where some of the drug was found, and of the discovery of particulars of florescent tracer powder on the driver’s seat and in the boot of the car was inadmissible against Sexton.  This evidence would be prejudicial against Sexton in any joint trial.  It was also said that evidence of telephone contact between Collins and Burns in 1997 was inadmissible against Sexton and unduly prejudicial against Sexton in any joint trial.  Evidence of discussions between Collins, Burns and Thompson was said to be inadmissible as against Sexton.  The prosecution was unable to establish any evidence of preconcert against Sexton to enable any statements and acts made by co‑accused admissible against him.[19]  A separate trial was said to be the only way that Sexton could receive a fair trial.

[19] (1961) 104 CLR 1 at 7

24     The prosecution alleges that there was reasonable evidence of a joint enterprise before the court separate and apart from any statements or letters emanating from another accused.  That evidence would entitle the court to rule that statements, utterances and letters of one accused could be used against others.  It was submitted that a joint trial was not inappropriate for Sexton given evidence showing his personal involvement in negotiations, not only in relation to the Don Giovanni but also the first vessel.  That apart, there is evidence that he had travelled to South Africa, where the consignment of drugs was said to have originated, as well as to Holland, where money had been sent through the agency of the trust account of Collins’ solicitor.  Add to that the fact that Sexton’s warehouse was used for delivery of the materials imported, a joint trial was appropriate.  Reliance was placed upon material seized from Sexton’s office, particularly a letter of 26 May as evidence of Sexton’s involvement in a joint enterprise, at least with Thompson if not Burns and others.

25     The prosecution submitted that the essence of its case against Sexton would be the same no matter who was on trial.  There would still be evidence about arrangements made for the importation and involvement of Thompson, Burns and Sexton in that there would still be evidence of Collins and Burns putting money into the trust account of Collins’ solicitor and it being sent off overseas.  There would still be evidence about the delivery of the container and the unpacking of it by Burns and Savenkoff, the conversations between them and the evidence of Burns taking some of the cannabis away in his car to a house at Parafield Gardens.

26     I agree with the submissions that some evidence is admissible no matter who is on trial.  I cannot readily identify, in that material, evidence significantly prejudicial to Sexton to warrant a separate trial.  The evidence is evidence of particular accused fulfilling their roles in a single importation.  The jury can be told whether, for example, Collin’s activities in relation to money, or Burns’ activities in relation to taking cannabis away from Holden Hill has any relevance to the case against a particular accused.  Prejudice is not shown by evidence that is relevant and probative.  The jury is entitled to have the total picture of the enterprise alleged and consider where, in that context, a particular person fits in, if at all.  The prosecution must establish the fact of importation of the drug.  Then as against a particular accused it must establish that he was knowingly concerned in that act of importation.  The prosecution concedes that most of the documents found in Sexton’s possession are not probative of facts against others but if documents admissible against Sexton have some particular prejudicial effect against another accused, the prosecution said it would consider withholding that in a joint trial. 

27     I refuse Sexton’s application for a separate trial.  There is no substantial risk of prejudice to him resulting from the joint trial and the admission of evidence in that trial, whether that evidence be admissible as against him or not.  Proper and adequate directions can and must be given to the jury about the relevance of particular items of evidence as against particular accused.  It will be for the trial judge to determine whether the prosecution is correct in its assertion that things said between Burns and Savenkoff at the warehouse are admissible against Sexton or any other accused.  If it is not, no significant prejudice would result from that evidence in any joint trial of Sexton.  The interests of justice require a joint trial.

Savenkoff

28     The prosecution’s case against Savenkoff is that he had been called to the warehouse by Burns, knowing what was to take place and assisting in unpacking the cannabis and disposing of it by placing some in to Burns car and leaving the scene with some himself.  An application for a separate trial for Savenkoff claims that the case against Savenkoff is significantly different from that against the co-accused and that, whereas against other accused there is documentary evidence consistent with being knowingly concerned in the importation of drugs, there is no such evidence against Savenkoff.  So too with the material related to financial transactions; none of that is said to have involved Savenkoff.  The submission was put that if Savenkoff was knowingly concerned in the importation of drugs, one would expect some material implicating him with respect to money payments.  It was also put that the material discloses that importation of the drug was at an end before Savenkoff’s involvement is the subject of any evidence.  The submission was that once the drugs had been processed through customs the importation had ceased, certainly by the time that there is a video record of Savenkoff unloading the contents of the container.  Whilst there is evidence of telephone contact between Savenkoff and Burns before the container landed and at significant times on 30, 31 October, it was submitted that no inference could be drawn against Savenkoff from that evidence, that he was knowingly concerned in the importation alleged.  It was submitted that there was no reasonable evidence of Savenkoff acting in preconcert to permit evidence of exchanges between other persons as evidence admissible against him.  Conversations between a number of persons may be admissible against another said to be acting jointly with that other person if the words or other conduct “might fairly be regarded as having been done or said in furtherance of a common purpose existing between those persons.”[20]  Before such evidence is admissible against an absent party, “reasonable evidence of the preconcert” must first be adduced.[21]

“When the case for the prosecution is that in the commission of a crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case. ... It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others.”

[20]     Smith, Turner and Altintas (1994) 75 A Crim R 327 at 336

[21]     Tripodi v R (1961) 104 CLR 1 at 7

29     It is for the judge and not the jury to determine the question of admissibility.[22]  The judge must decide whether there is reasonable evidence of the preconcert to provide a basis for the admission of the challenged evidence.  On the material presently before the court, the only possible basis for the invocation of the Tripodi principle against Savenkoff would relate to exchanges involving Burns after proof of Savenkoff’s joinder with him.  The prosecution did not contend otherwise.  Savenkoff’s counsel submitted that a joint trial was inappropriate here because of the difficulty of maintaining directions to the jury as to the evidence admissible as against Savenkoff.  The directions were said to be necessarily complicated and numerous “to continually keep the jury on track as to what was relevant against Savenkoff and what may be relevant against others.”  On that basis the exercise of a discretion to order a separate trial in favour of Savenkoff was called for.  It would be extremely difficult for the jury to focus attention on the evidence properly admissible against Savenkoff.

[22]     Ahern v R (1988) 165 CLR 87 at 103

30     Counsel for the prosecution submitted that it was ultimately a question of fact where importation started and finished.  This was not a relevant question on the application for separate trials.  The principle issue for the court on this application was whether the case against Savenkoff was markedly different from that against his co-accused.  It was admitted that the case against him was “quite a different case from that against (the co-accused)” but Savenkoff’s role was an integral part of the whole operation.  The fact that there was other evidence with respect to the co-accused going to activities in which there is no evidence that Savenkoff participated, was said to be not to the point.  That evidence does not prejudice Savenkoff.  Proper directions can be given.  It was submitted that by unpacking the cannabis, as the prosecution alleges, Savenkoff was playing a central role in the importation of the drug.  He was, on the prosecution case, there by prearrangement, helping to unpack the drug and leaving with some of it.  Other accused may have particular roles.  The fact that they do not all take part in every task is not extraordinary.  It is inevitable that in a joint enterprise this will be so.  It does not follow that separate trials must be ordered because the roles of the co-accused differ.

31     With respect to the argument that importation ceased before Savenkoff could be shown to be involved, reference was made to Courtenay-Smith No 2[23].  Importation extends on both sides of the actual act of importing into the country.  That is the view of Barwick CJ in Forbes[24].  Importation does not cease at the moment of an import.  Whether a particular act is proximate to the act of importing is a question of degree or decision in a particular case.  It is sufficient to prove a person knowingly concerned in importation if the concern is manifested in the venture which centred upon the importation.[25]  Where an imported product was still in a container held in a hired factory in suburban Sydney, a distance from the airport where it arrived before distribution to the markets for which it was clearly intended, the process of importation contemplated by the Customs Act had not relevantly ceased.  I cannot accept the submission that importation was at an end when evidence arises implicating Savenkoff.  I refuse his application for a separate trial having regard to the principles identified in the passages cited from Harbach, Glover and Collie.  Whilst there is a substantial quantity of evidence going to proof of importation or the involvement of others and not Savenkoff, there is no relevant prejudice resulting from the introduction of that evidence in a joint trial.  I agree with the submissions put for the prosecution.  Proper directions can be given.

[23] (1990) 48 A Crim R 49 at 63 - 64

[24] (1970) 126 CLR 429 at 432

[25]     R v Yong (1975) 7 ALR 271; Kelly v R (1975) 12 SASR 389

32     In so deciding against the order sought I have paid close attention to the fact that the same quantity of evidence to be adduced at a joint trial would not be called in a separate trial of Savenkoff.  Nevertheless, it is not just the time and expense to which Savenkoff might be exposed by the length of a joint trial that is to be considered.  I take that factor into account, particularly in the case of this accused but decline the order sought given the general principle, the absence of identifiable prejudice and the factors going to support the prima facie expectation of a joint trial where the same incident is said to have resulted in or included the commission of criminal offences.[26]

[26]     See also Jones and Waghorn (1991) 35 A Crim R 159

Burns

33              In response to the application for particulars by Burns, the prosecutor said that the case against him was based first and foremost on direct evidence of Burns liaising with the local shipping agent, taking delivery of the container at Holden Hill, unpacking the cannabis and playing a role in its distribution.  Further, the prosecution said that it relied upon evidence that Burns provided cash for payment into the Paul Kirk Roberts’ trust account and gave directions as to payments out of it and that he sent monies overseas as detailed in a chart of financial transactions prepared for the trial.  The prosecution also said that in respect of some of the activities identified, it was contended that it was plain that Burns was pursuing a plan in combination with others.  By way of example it said that the liaison with Bachelor, the local shipping agent, was shared with Sexton and Thompson.  As for unpacking the cannabis and playing a role in distributing it, the prosecution said that Burns was plainly proceeding in accordance with an arrangement arrived at with Savenkoff to unpack and remove the cannabis.  Similarly, it was said it appeared that Burns and Collins had reached an agreement as to payment of monies into and out of the Paul Kirk Roberts’ trust account.  That being said, it was asserted that proof of any of those agreements was not essential to the prosecution case against Burns.  The prosecutor said that its case did not presently include evidence from which Burns’ involvement in the offence charged could be inferred any earlier than 20 September 1997, there being evidence of his involvement in dealings with Collins’ solicitor commencing by 21 September 1997.  However, the prosecution said that, on its case, proof of the precise date was not essential.  The prosecutor declined to enumerate each and every utterance and document of others to which the prosecution might eventually point as assisting its case.  It was put that Burns’ activities could be relied on as reasonable evidence of a joint enterprise with Collins, Sexton and Thompson to import prohibited imports.  If at the end of the evidence the trial judge found that this was so the prosecution was “likely (to) point to actions, words or letters, or the like, of those men which were in the course of, or in furtherance of such activities as were identified in the particulars.”

34     Against this particularisation it was put that the nature of the separate documentary evidence against the accused “pointed towards the need for a separate trial so that it became manageable for a trial judge to direct the jury in relation to the evidence admissible against each accused.”  The huge diversity in the number of documents sought to be led against separate accused, on the basis of documents having been found in possession of a particular accused, was said to generate particular difficulties and called for separate trials.

35     Counsel for Burns submitted that the prosecution could not properly rely upon separate alleged plans or arrangements between two or more of the accused at different times before the act or conduct of Burns alleged to show his direct involvement after 20 September 1997.  I think that, properly understood, the prosecution is entitled to prove the relevant act of importation as against Burns by relying upon evidence of events occurring before that date.  That is not to say that the prosecution is entitled to use things said by any accused before that time as proof of Burns’ state of mind or “knowing concern” at that time.  That evidence relates to the proof of the act of importation with respect to which Burns is said to have been knowingly concerned, at least after 20 September 1997.  I did not understand the prosecution to be submitting otherwise.  An offence against s 233B(1)(d) of the Customs Act 1901 (Cwth) is made out by proof of importation and a person’s involvement before that actual importation and/or during it.[27]

[27]     Tannous (1986) 32 A Crim R 301 at 305

36     Counsel for Burns maintained that the real difficulty in this case for a trial judge was that, in the end, directions that would have to be given about each of the different blocks of documentary evidence.  In particular some were said to be admissible against some but “potentially inadmissible” against others.  The submission was that the joinder generates insuperable difficulties for a trial judge.  The judge would have to determine not only the admissibilty of each and every document against each separate accused, but also direct the jury as to the proper use in the separate case against each accused.

37     Besides raising the quantity of evidence, the different nature of it against particular accused and their different roles, counsel for Burns emphasised that in electing to charge under s 233B(1)(d) the prosecution was not charging the accused with a joint enterprise.  That being so, it was submitted that the prosecution was not entitled to draw upon principles of the kind enunciated in Tripodi.[28]  That case was considered in a relevant decision of the Court of Appeal, Gray & Others[29].  There, Glidewell LJ pointed out that Tripodi was a case related to a group of men acting in concert to commit two offences.  The case then before the Court of Appeal was, as I think this case truly is, one where there were a number of separate substantial offences alleged against each accused, even if they were properly described as committed in pursuance of some general scheme or agreement with respect to a single importation.  That being acknowledged, nevertheless, the principle is that where two persons are engaged in a common enterprise, acts and declarations of one in pursuance of that common purpose are admissible against the other provided that the evidence sought to be admitted is evidence showing involvement of each of the accused in the commission of the offence or offences charged.  In Gray there was not one network alleged.  Some accused were charged with operating separately from others.  So too here, by the particulars supplied the prosecution alleges some activity between some accused not involving others.  A jury would not be entitled to treat as probative material that, on no view, could be probative of the issues before it.  The issues before the jury in this case are whether particular accused were knowingly concerned in a particular importation of drugs.  An accused’s involvement being different does not make a particular accused’s  involvement significantly different for the purposes of considering the application for separate trials absent identifiable prejudice to an accused from the joinder.  Whatever the limits of the principle in Tripodi it cannot extend to permit the use of evidence against one accused because of a proven agreement between two others.[30]

[28] (1961) 104 CLR 1 at 6

[29]     Gray (1995) 2 Crim App R 100

[30]     (1995) 2 Crim App R 100 at 130, 131

38     I did not understand that the prosecution intends to pursue a course against any accused inconsistent with Tripodi although some submissions made with respect to the admissibility of things said between Burns and Savenkoff being admissible against Collins and Burns seems inconsistent with the approach in Gray.  Whilst it may be correct to say that a purpose of the separate offence created by s 233B(1)(d) of the Customs Act is for liability to attach without proof of an agreement or common purpose of any other, it does not follow that the Tripodi principle cannot be invoked where its terms are met.  I am not persuaded that separate trials should be ordered now because of a real possibility that the quantitative and qualitative nature of the evidence against each accused could result in applications for separate trials occurring at the conclusion of the Crown case, immediately after some selection process then by the prosecution and a ruling by the trial judge in relation to evidence said to be probative against particular accused in accordance with the proper application of the Tripodi principle.

39     Overall, the Tripodi principle is likely to play a very minor role in any joint trial given the clarification resulting from submissions in the applications for separate trials.  I cannot identify a real risk of particular prejudice to any accused resulting from their joint trial nor do I accept that the trial judge’s task in giving proper directions as to the proper use of evidence is so difficult or challenging that separate trials should be ordered.  In Burns’ case, the activities alleged against him touch on that of others.  Links spoken of in submissions may well be the subject of correction at the trial for reasons already advanced.  No real significant prejudice to Burns from a joint trial has been identified.  His application also fails.  The interests of justice require a joint trial of Burns and the other three.