R v Domokos (No 5) - [2004] SADC 119

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOMOKOS & ORS (No 5)
Reasons for Rulings of His Honour Judge Robertson
21 June 2004
CRIMINAL LAW
SEPARATE TRIALS
Applications for separate trial by three accused - principles applicable - applications refused.
Customs Act 1901 (Cwth) s233B(1)(d), referred to.
R v Burns, Thompson & Others [1999] SASC 285; R v Glover (1987) 46 SASR 310, applied.

R v DOMOKOS & ORS (No 5)
[2004] SADC 119
Judge Robertson
Criminal
Nature of the Prosecutions

There are two Counts in the Information. The First Count charges the accused Domokos and the accused Virag with being knowingly concerned in importation into Australia of a prohibited import contrary to Section 233B(1)(d) of the Customs Act 1901 (“the Act”). It relates to importation of amphetamines delivered to a Waikerie address on 10 October 2000.
The Second Count charges those two accused and two others, namely the accused Majoran and the accused Mica with being knowingly concerned in importing into Australia a prohibited import contrary to Section 233B(1)(d) of the Act. It relates to the importation of amphetamines delivered to the Angle Park address of the accused Mica on 13 October 2000.
It is the case of the Commonwealth Director of Public Prosecution that the four accused and others were part of an ongoing enterprise to import illegal drugs into Australia and that the circumstances relating to the charges laid in the Information are but two instances of such enterprise.
It needs to be recognised immediately that whilst Mr Domokos and Mr Virag are charged together in Count 1, they are not jointly charged with committing the same offence. They are each charged specifically with their respective involvement in the Waikerie importation. Whilst a number of people may be involved in a joint enterprise to import into Australia a prohibited import, the essence of the charge of being knowingly concerned with a prohibited import is that it is directed to the particular involvement of a particular person in the importation. The same observations relate to the four persons charged with the Angle Park importation in Count 2. They are not charged jointly with committing the same offence. The charge against each of them relates to the alleged particular involvement of each person charged with the Angle Park importation the subject of the offence in Count 2.
Having drawn the distinction between persons charged jointly with committing the same offence and the nature of the specific charge against each of the accused in this Information, nevertheless, in my opinion, the principles relating to joint trials and matters going to the question of separate trials remain the same. The starting point is that as each accused, in a particular count, is charged with an offence arising out of the same importation then it is desirable that they be tried together. The question which arises in the case of each Accused making an application is whether the circumstances are such that the discretion should be exercised and an order for separate trials be made.
The point of distinction to which I have referred and the question of whether the starting point is the same as that where persons are charged jointly with some offence is explained by Prior J in R v Burns Thompson and Others (1999) SASC 285 (at page 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”.
In support of this latter proposition, Prior J relied upon the observations of King CJ in R v Glover (1987) 46 SASR 310 (at 312):
“His Honour gave reasons for his ruling in which he weighed the various considerations which bore upon the issue which he had to decide. I take the view that where two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking highly desirable in the interests of justice that they should be tried together”.
Relevant Principles
The relevant principles applicable to the exercise of the discretion to grant separate trials are helpfully summarised by Prior J in Burns, Thompson and Others. Whilst it is a long passage, it is well worth repeating. At pages 2 and 3 Prior J said:
“In R v Collie, Kranz and Lovegrove (1991) 56 SASR 302, the Court of Criminal Appeal affirmed the previous authority of this Court, R v Harbach (1973) SASR 427 at 432. 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.
King CJ referred to his own remarks in R v Glover (at 312). 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’. His Honour also referred to the decision of the High Court in Darby, 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.
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’. (at 310). 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. (at 321). 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 difference 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.” (Webb v R (1994) 181 CLR 41 at 56 and 89).
At page 4 Prior J went on to observe:
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. (Deane J in Webb 181 CLR 41 at 80). 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. (Glover at 312).
The Specific Applications
I now turn to consider the specific applications of each of the accused who have made an application for a separate Trial.
Virag
Mr Aitken submitted that the case against Mr Domokos in Count 1 is stronger than the case against the accused Mr Virag. He further submitted that the case against each of the accused Domokos, Mica and Majoran is stronger than that against the accused Virag in Count 2. The Crown accepts that the case against the accused Domokos in both Counts is stronger than the accused Virag.
Mr Aitken also submitted that there is evidence against Mr Domokos with respect to Count 1 and the other three accused with respect to Count 2 which is not admissible against the accused Virag. There were other factors, which I do not stay to identify, which Mr Aitken submitted were also relevant to the exercise of the discretion.
In considering the exercise of the discretion it is important to recognise that the Crown case is that the four accused and others were part of an ongoing drug importation enterprise. The Crown alleges that there were importations in which each of the accused were involved which preceded the alleged importations the subject of each charge. The Crown says that the evidence relating to the alleged earlier importations are relevant as to whether each of the accused was knowingly concerned with respect to the importation for which an accused has been charged. There is considerable body of circumstantial evidence relating to these earlier importations. The case against Mr Virag with respect to each count also involves a significant body of circumstantial evidence common to both Counts which also is relevant to the issue of knowledge with respect to each Count.
There is, as I said, evidence relevant and admissible only to one Count and not the other. There is some evidence which is inadmissible against Mr Virag and which is likely to be prejudicial if the jury remained uninstructed. There is evidence admissible against one accused which is inadmissible against another in the same Count. This latter observation applies with respect to Mr Virag in both Counts. However, in my view, with respect to all of these matters, appropriate directions are able to be given to the jury which would overcome any prejudice arising therefrom. Furthermore, I am of the opinion that appropriate directions can be given to the jury which will make plain what evidence is admissible against Mr Virag with respect to each Count and what evidence is inadmissible.
It is clear that the strength of the case against Mr Domokos is greater than that of Mr Virag with respect to both Counts. With respect to Count 2 it appears that the case against Ms Mica is stronger than the case against Mr Virag. I doubt if the strength of the case against Mr Majoran is greater than that against Mr Virag. These are all matters which need to be weighed up when considering the exercise of the discretion as do questions of evidence admissible against other accused and not against the accused Virag.
After weighing up all the relevant factors, I am not satisfied that the circumstances indicate that it is in the interests of justice that I should order a separate trial for Mr Virag. In my view, there is no proper basis to depart from the general rule in the case of Mr Virag. Accordingly, the application for a separate trial is refused.
Majoran
The accused Majoran is only charged with the Angle Park importation the subject of Count 2. As I said when dealing with the application of Mr Virag it is important to recognise that the Crown case is that the four accused and others were part of an ongoing drug importation enterprise. I will not repeat all the observations I made when I dealt with Mr Virag’s application. However, I should say that the importation alleged in Count 2 is alleged to be part of that enterprise. There is circumstantial evidence common to both Counts which the Crown alleges is relevant to the knowledge of each accused with respect to the importation for which the accused is charged.
The evidence with respect to Count 1, being the Waikerie importation, is not admissible in Count 2 save for the evidence which is common to both to which I referred to a moment ago. There is some evidence admissible against other accused which is not admissible against Mr Majoran. However, in my view, with respect to all those factors I have outlined, appropriate directions are able to be given to the jury which would overcome any prejudice arising therefrom.
The case against Mr Domokos in Count 2 is considerably stronger than the case against Mr Majoran. The case alleged against Mr Domokos extends to far greater involvement in the importation than that of Mr Majoran. The case against Ms Mica would also seem to be stronger than the case against Mr Majoran. There is little difference (if any) in the strength of the case against Mr Virag and the case against the accused Majoran.
Following the weighing up all the relevant factors I have not reached the conclusion that the interests of justice require that there be a separate trial for Mr Majoran.
Mica
Ms Mica is only charged with Count 2. Mr Birchall, Counsel for Ms Mica, submitted that the evidence against Ms Mica is significantly weaker than the evidence of the other three accused with respect to Count 2. The Commonwealth acknowledged that the evidence against Mr Domokos was stronger than the evidence against Ms Mica. I doubt whether the evidence against Ms Mica is weaker than the evidence against Mr Virag or Mr Majoran. Indeed, in my view, the case against Ms Mica is probably stronger than that against Mr Virag or Mr Majoran with respect to Count 2.
As I mentioned when dealing with the applications of Mr Virag and Mr Majoran, it is important to note that the Crown case is that the four accused and others were part of an ongoing drug importation enterprise. The Crown alleges that there were earlier importations in which each of the accused were involved which preceded the alleged importation in Count 2. There is a considerable body of circumstantial evidence relating to these earlier importations.
The Crown says these earlier importations are relevant to the question of knowledge with respect to Ms Mica in Count 2. Furthermore, there is a considerable body of circumstantial evidence common to both Counts which the Crown says is also relevant to the question of knowledge and the accused’s involvement in the Angle Park importation, the subject of Count 2.
There is some evidence relevant to other accused persons in Count 2 which is inadmissible against Ms Mica and which could be prejudicial if the jury remained uninstructed. Clearly the evidence relevant to Count 1 is not admissible with respect to Count 2 save for the evidence common to both Counts to which I referred a moment ago. However, with all these matters I am of the opinion that appropriate directions can be given to the jury which would overcome any prejudice arising therefrom.
There were other factors apart from those which I have mentioned, which Mr Birchall pointed to support the application for a separate trial. I do not stay to detail these factors, however, I have considered them in reaching my decision.
I am not satisfied that it has been shown that prejudice will arise by the conduct of joint trials of such a nature that would require that I order a separate trial for Ms Mica. I am not satisfied in the interests of justice that there be a separate trial for Ms Mica.