R v Garcia - [2019] NSWSC 1004

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:
R v Lipton [2019] NSWSC 372
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22

Category: Procedural rulings
Parties: Regina (Crown)
Jose Garcia (Accused)
Representation:
Counsel:
S Howell (Crown)
J Stratton SC (Accused)
Solicitors:
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

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…

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 Garcia

Details

AGLC: R v Garcia [2019] NSWSC 1004
Case: [2019] NSWSC 1004
Decision Date: 08 August 2019

CaseChat Overview and Summary

In the matter of R v Garcia, five individuals were brought before the court on charges of conspiracy to import drugs, with three distinct conspiracies alleged. One of the accused, Garcia, sought a separate trial, arguing that the evidence against him was significantly weaker and different from that against his co-accused. Garcia was indicted for involvement in only one of the alleged conspiracies, and he argued that the evidence against him was not only weaker but also post-dated his alleged involvement in the conspiracy. The central issues for the court were whether Garcia's evidence was significantly different and weaker than that of his co-accused, the admissibility of evidence that post-dated the end of his alleged involvement, and the potential prejudice to Garcia if he was tried jointly with the others. Additionally, the court had to consider the co-conspirators' rule, the cost and convenience of separate trials, and whether a separate trial would be in the interests of justice.

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