Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Garcia [2019] NSWSC 1004 Hearing dates: 30 July 2019 Date of orders: 30 July 2019 Decision date: 08 August 2019 Jurisdiction: Common Law Before: Wilson J Decision: Application granted.
See [58] for orders.
Catchwords: CRIMINAL PROCEDURE – trial of five accused persons for conspiracy to import border controlled drugs – three separate conspiracies alleged – application for separate trial by one accused – applicant indicted for a single conspiracy – whether evidence against one accused significantly different to, and weaker than that against co-accused – admissibility of evidence post-dating end of alleged involvement in conspiracy – question of prejudice to accused in joint trial – evidence to prove conspiracy – co-conspirators’ rule – question of cost and convenience of separate trials – application granted
Legislation Cited: Criminal Code 1995 (Cth), ss 11.5(1) and 307.1(1)
Criminal Procedure Act 1986 (NSW), s 21(2)(b)
Evidence Act 1995 (NSW), s 191
Cases Cited: Category: Procedural rulings Parties: Regina (Crown)
Jose Garcia (Accused)Representation: Counsel:
Solicitors:
S Howell (Crown)
J Stratton SC (Accused)
Solicitor for Public Prosecutions (Cth) (Crown)
Bunton Lawyers (Accused)
File Number(s): 2017/297422 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
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HER HONOUR: On 7 September 2018 Jose Garcia (“the applicant”) was jointly arraigned before this Court with four other men (“the co-accused”), on an indictment bringing three counts. The indictment relates to three discrete but related conspiracies, charged as offences contrary to s 11.5(1) and s 307.1(1) of the Criminal Code 1995 (Cth), in the following terms:
Count 1: That between about 14 August 2014 and 13 January 2015, at Sydney in the State of New South Wales and elsewhere, Joseph D’Agostino, Frank D’Agostino and [the applicant], did conspire with each other, Person A, Benjamin Sara, and divers others, to import a substance, the substance being a border controlled drug, namely heroin, and the quantity being a commercial quantity.
Count 2: That between about 13 January 2015 and 31 May 2015, at Sydney in the State of New South Wales and elsewhere, Joseph D’Agostino, Frank D’Agostino, Francesco Pirrello, and Michael Pirrello conspired with each other, Person A, and divers others, to import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity.
Count 3: That between about 1 September 2015 and 31 March 2016, at Sydney in the State of New South Wales and elsewhere, Joseph D’Agostino and Frank D’Agostino conspired with each other, Person A, Person C, Jonathon Cooper, Richard Lipton, John Tobin, Stuart Ayrton, James Collins and divers others, to import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial…
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- AGLC
- R v Garcia [2019] NSWSC 1004
- Case
- [2019] NSWSC 1004
- Decision Date
CaseChat Overview and Summary
The court examined the nature and strength of the evidence against Garcia, finding that it was indeed significantly weaker and different from that against his co-accused. The court also considered the potential prejudice to Garcia if he were to be tried jointly, including the risk of prejudice from the co-conspirators' rule, which allows evidence of a co-conspirator's statements to be admitted against all conspirators. The court found that the evidence post-dating Garcia's alleged involvement was relevant and admissible as it demonstrated the ongoing nature of the conspiracy. The court balanced these factors against the cost and convenience of separate trials, concluding that a separate trial would be appropriate in this case to ensure a fair trial for Garcia.
In granting the application for a separate trial, the court emphasised the importance of a fair trial and the need to protect the rights of the accused. The court found that the evidence against Garcia was sufficiently different and weaker, and that a joint trial would likely prejudice Garcia. The court also considered the admissibility of post-dating evidence and the co-conspirators' rule, concluding that these factors did not outweigh the need for a separate trial. The court found that a separate trial would be in the interests of justice and granted the application.
The final orders of the court included granting Garcia's application for a separate trial, with directions for the separate trial to proceed as soon as practicable. The court also made orders to ensure the fairness and efficiency of the separate trial process.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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