R v Campbell; R v Waters (No. 2) - [2023] NSWDC 627

District Court

New South Wales

Medium Neutral Citation: R v Campbell; R v Waters (No. 2) [2023] NSWDC 627
Hearing dates: 29 May 2023
Date of orders: 29 May 2023
Decision date: 07 June 2023
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Application refused. For order see [21].

Catchwords:
Applications for discharge of the jury and a separate trial - S21 Criminal Procedure Act 1986.

Legislation Cited:
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
De Jesus v R (1986) 68 ALR 1
Kamm v R [2007] NSWCCA 201
Sutton v R (1984) 152 CLR 528

Category: Procedural rulings
Parties: The Commonwealth Director of Public Prosecutions (The Crown)
David Edward John Campbell (Accused Campbell)
Tristian Egon Sebastian Waters (Accused Waters)
Representation:
Counsel:
Mr S Flood (Crown)
Mr M Varley (Crown)
Mr R Driels (Accused Campbell)
Mr D Dalton SC (Accused Waters)
Mr P Hogan (Accused Waters)
Solicitors:
Ms C Patrizi (Crown)
Ms N Anastasiou (Accused)
Mr T Dib (Accused Waters)

File Number(s): 2018/17350 (Campbell) & 2018/20632 (Waters)
Publication restriction: Nil.

JUDGMENT

On 15 May 2023 the co-accused were arraigned on the following counts on the Indictment:-

Count 1 that between about 18 January 2017 and about 24 October 2017, at Sydney in the State of New South Wales and elsewhere, they did conspire with each other, Rohan Peter Arnold and divers others to import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity.

Count 2 that between about 24 October 2017 and 16 January 2018, at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Rohan Peter Arnold and divers others to possess a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity.

The accused Campbell pleaded not guilty to both counts and the accused Waters pleaded not guilty to Count 1 and guilty to Count 2 “but for the date range which was from about 26 December 2017 to 16 January 2018”.
Count 2 on the Indictment was subsequently amended by consent pursuant to s20 of the Criminal Procedure Act 1986 by adding the words “and the substance having been unlawfully imported”. Further, with the agreement of the parties, the co-accused were not re-arraigned – see Kamm v R [2007] NSWCCA 201 at [37].
Following empanelment of the jury on 16 May the trial was adjourned until 22 May 2023 because of the risk of COVID-19 infection raised properly by counsel for Campbell.
On Monday 22 May 2023 opening addresses took place and the Crown called its first two witnesses. Unfortunately, on 23 May 2023 the matter was adjourned further as a result of myself as trial judge testing positive to COVID-19. The matter was stood over until 29 May 2023.
On 29 May 2023 counsel for Campbell applied to discharge the jury in Mr Campbell’s trial and applied for a separate trial pursuant to s21 of the Criminal Procedure Act 1986…

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 v Campbell; R v Waters (No. 2)

Details

AGLC: R v Campbell; R v Waters (No. 2) [2023] NSWDC 627
Case: [2023] NSWDC 627
Decision Date: 07 June 2023

CaseChat Overview and Summary

In the case of R v Campbell; R v Waters (No. 2), the applicants, Campbell and Waters, sought a discharge of the jury and a separate trial, respectively, under Section 21 of the Criminal Procedure Act 1986. The matter was heard in a higher court, where the applicants' requests were ultimately refused. The applicants argued that they were prejudiced by the conduct of the trial and that they required separate trials to ensure a fair process.

The court was tasked with determining whether the applicants' requests were justified under the statute. Specifically, the court needed to assess whether the trial's conduct prejudiced the applicants' right to a fair trial and whether separate trials were necessary to avoid that prejudice. The court also had to consider the potential impact of a separate trial on the efficiency and fairness of the judicial process.

In refusing the applications, the court held that the trial's conduct did not prejudice the applicants' right to a fair trial. The court found that the jury's impartiality was not compromised, and any errors in the trial did not result in a miscarriage of justice. The court also noted that separate trials were not necessary to avoid prejudice, as the evidence against each applicant was distinct and could be effectively managed within a single trial. The court concluded that granting the applications would unduly delay the judicial process and was not in the interests of justice.

Orders

Orders of the court

Application refused. For order see [21].

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Campbell; R v Waters (No. 2) [2023] NSWDC 627
Hearing dates:	29 May 2023
Date of orders:	29 May 2023
Decision date:	07 June 2023
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Application refused. For order see [21].
Catchwords:	Applications for discharge of the jury and a separate trial - S21 Criminal Procedure Act 1986.
Legislation Cited:	Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 (NSW)
Cases Cited:	De Jesus v R (1986) 68 ALR 1 Kamm v R [2007] NSWCCA 201 Sutton v R (1984) 152 CLR 528
Category:	Procedural rulings
Parties:	The Commonwealth Director of Public Prosecutions (The Crown) David Edward John Campbell (Accused Campbell) Tristian Egon Sebastian Waters (Accused Waters)
Representation:	Counsel: Mr S Flood (Crown) Mr M Varley (Crown) Mr R Driels (Accused Campbell) Mr D Dalton SC (Accused Waters) Mr P Hogan (Accused Waters) Solicitors: Ms C Patrizi (Crown) Ms N Anastasiou (Accused) Mr T Dib (Accused Waters)
File Number(s):	2018/17350 (Campbell) & 2018/20632 (Waters)
Publication restriction:	Nil.