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

1. 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 quantity.

2. As can be seen, the applicant is charged with only one of the three counts, count 1, in which he is accused jointly with Joseph D’Agostino and Frank D’Agostino. The Crown does not allege that he was involved in any later conspiracy, and his alleged involvement in the events charged as count 1 is said to have ceased on 4 December 2014.

3. Having entered a plea of not guilty to count 1, the applicant’s trial was fixed for 14 October 2019 before this Court, jointly with that of the co-accused, with a ten week estimate.

4. By Notice of Motion filed on 4 November 2018, the applicant sought an order pursuant to s 21(2)(b) of the Criminal Procedure Act 1986 (NSW) (“the Criminal Procedure Act”), severing the trial for count 1 from the proceedings relating to the balance of the indictment. The motion is supported by an affidavit of Barry Bunton, sworn on 26 October 2018, in which Mr Bunton, the applicant’s solicitor, opines that the applicant would be prejudiced by a joint trial with proceedings relating to counts 2 and 3.

5. The Motion was heard on 30 July 2019, and the Court made the order sought by the applicant at the conclusion of the hearing. Reasons for making that order were reserved until today.

The Relevant Law

6. There was no issue as to the law which governs the determination of the application. In a recent related matter of R v Lipton [2019] NSWSC 372 I set out the law and principles at [77] – [85], extracted below.

Subject to the provisions of s 29(3) of the Criminal Procedure Act, s 29(2) allows for two or more accused persons to be tried together:

29   When more than one offence may be heard at the same time

(1) […]

(2)  A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances:

(a)  the accused persons and the prosecutor consent,

(b)  the offences arise out of the same set of circumstances,

(c)  the offences form or are part of a series of offences of the same or a similar character.

(3)  Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

The application has been made pursuant to s 21(2)(b) of the Criminal Procedure Act, which provides for a court to order a separate trial (although, more usually, with respect to counts against an accused on indictment):

21   Orders for amendment of indictment, separate trial and postponement of trial

(1)  […]

(2)  If of the opinion:

(a)  […], or

(b)  that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,

the court may order a separate trial of any count or counts of the indictment.

Ordinarily, where the Crown alleges that two or more accused persons have committed a crime or crimes jointly, prima facie there should be a joint trial: Webb and Hay v The Queen(1994) 181 CLR 41 at [88]-[89]; [1994] HCA 30. There are strong reasons of principle and policy that this should be so.

It is desirable that the various people allegedly concerned in one crime are dealt with in the same litigation: R v Oliver (1984) 57 ALR 543 at [547]. Joint trials further the public interest in the efficient and timely disposition of trials, conserve costs, and minimise the inconvenience that would be occasioned to witnesses in attending more than one hearing: R v Oliver;R v Annakin & Ors (1988) 37 A Crim R 131 at [138]; Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105 at [47]. Proceeding in that way also avoids the prospect of inconsistent results: Symss v R [2003] NSWCCA 77 at [68].

Where an accused person seeks to have his or her trial severed from that of others alleged to have been involved in the same criminal enterprise, he or she bears the onus of establishing that a joint trial carries a risk of impermissible prejudice, which cannot sufficiently be cured by a direction to the jury: Verma v R (1987) 30 A Crim R 441 at [445], per Hunt J (as he then was), with whom Wood and Campbell JJ agreed.

An order granting or refusing a separate trial application is a discretionary decision for the court; it is ultimately a question of ensuring that an accused person receives a fair trial, weighing in the balance other issues such as cost and convenience.

The circumstances in which it may be appropriate to order a separate trial were considered by Hunt J in the frequently cited decision of R v Middis, an unreported decision of this Court of 27 March 1991, approved in R v Baartman, unreported decision of the Court of Criminal Appeal 6 October 1994, and countless others. In Middis, his Honour said,

Briefly, the relevant principles are that:

1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and

2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and

3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,

a separate trial will usually be ordered in relation to the charges against the applicant.

The applicant must show that positive injustice would be caused to him in a joint trial.

The phrase “immeasurably stronger” in the third principle referred to by his Honour has been said to mean significant, though incommensurable: R v Pham [2004] NSWCCA 190 at [48]; Madubuko v R [2011] NSWCCA 135; (2011) 210 A Crim R 249 at [29].

Later in Middis Hunt J said,

[…] as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would – if it arises – result in positive injustice to him in a joint trial.

The Crown Case

7. To permit the application to be determined, the Court was provided with a copy of the Crown Case Statement, [REDACTED], and a copy of a transcript of a conversation recorded on 22 October 2014. What follows is a brief summary drawn from that material.

8. The applicant was charged as a consequence of a police investigation known as Operation Okesi. The investigation focused on five discrete conspiracies, the alleged object of each being the importation of a large quantity of a border controlled drug into Australia. The Crown Case Statement deals with the first three alleged conspiracies which have been termed, respectively, the Fijian Conspiracy, the Eclipse Conspiracy, and the Saxon Progress Conspiracy. The three conspiracies are reflected by counts 1, 2, and 3 of the indictment of 7 September 2018. The applicant’s alleged involvement is confined to the Fijian Conspiracy.

9. In relation to the Fijian Conspiracy the Crown alleges that the applicant became involved in the plot through his friendship with Joseph D’Agostino, whom he had known since his youth.

10. Joseph D’Agostino had borrowed substantial sums of money, both from the applicant and his family, and from [REDACTED] Person A; money he did not have the means to repay. The applicant took possession of a residential property owned by D’Agostino, intending that it be sold to cover part of the debt owed to him. Person A met the applicant when he viewed the property as a potential purchaser.

11. Thereafter, D’Agostino, Person A, and the applicant met occasionally for coffee, initially to discuss the possible sale of the D’Agostino property, but eventually discussing other money making ventures raised by D’Agostino. Joseph D’Agostino proposed taking advantage of Person A’s experience and contacts as a commercial fisherman to take delivery of illicit drugs at sea, for importation to and sale in Australia.

12. On 7 August 2014 there was a meeting between D’Agostino, his brother Frank, Person A, and the applicant, at a sailing club in Double Bay. The importation of drugs was discussed.

13. There was a further discussion on the subject on 14 August 2014, although the applicant was not involved in that discussion, meeting the others afterwards.

14. On 19 September 2014 Person A and the applicant met and the two discussed the proposed importation. After their discussion, Person A provided an update on the discussions to another purported conspirator, who was in fact an undercover police operative (“the UCO”).

15. On 20 October 2014 other conspirators met to discuss the importation, with Person A reporting on the involvement of the applicant. Person A gave an update to the UCO the following day.

16. On 22 October 2014 the applicant met with Joseph D’Agostino and Person A at a Sydney café, discussing with them specifics of the proposed importation, such as the quantity of drugs to be imported, packaging, the means of communication, and the respective roles of those involved. Unlike other meetings involving the applicants, this meeting was the subject of electronic surveillance, and a recording of the conversation is available to the Crown. The transcript records the applicant discussing the location of any drug collection, his intention to “keep an eye” on everything and to move the importation along, and the price, amongst other aspects of the plan.

17. Meetings between other of the conspirators followed over the next few months, although none involving the applicant. On 4 December 2014 the applicant and Person A discussed the plan, with the applicant telling Person A he should not be further involved. There was some discussion about a possible separate future plan, but nothing of a concluded nature. The applicant was not further involved with the Fijian Conspiracy.

18. The other conspirators, including Person A, continued with the planned importation, with arrangements made for the collection of drugs in Fiji, and the use of a particular vessel for the voyage to Australia.

19. The importation was ultimately frustrated by the seizure in Fiji on 20 December 2014 of 28.15 kilograms of heroin that had been secreted in a quad bike tyre in a container at Lautoka Wharf. The drug was worth as much as twenty one million dollars on the streets of Australia.

20. The applicant had no further involvement in any conspiracy to bring drugs into the country. The D’Agostino brothers and Person A continued with plans for an importation, with the second such plan giving rise to the Eclipse Conspiracy, in which Joseph D’Agostino, Frank D’Agostino, Person A, Francesco Pirrello, Michael Pirrello and others were alleged to be involved.

21. The plan agreed between the conspirators was to import 400 kilograms of cocaine, to be collected at sea from a Colombian vessel. Between 13 January 2015 and 31 May 2015 there were a number of meetings between conspirators and the UCO to make arrangements for the importation. The cargo left Colombia by ship, with Person A in communication with the ship to arrange co-ordinates for the transfer of the drugs at sea.

22. The Crown alleges that two local fishing boats were used, the Kaybeanna and the Eclipse, and Person A involved [REDCATED] Michael and Francesco Pirrello, who were commercial fishermen operating the Kaybeanna, in the drug collection.

23. The Kaybeanna left Sydney on 28 May 2015, with the Eclipse departing the following day. The Kaybeanna, crewed by Francesco Pirrello, was to act as support vessel for the Eclipse, aboard which were Person A and Michael Pirrello. The two boats put out to sea, but contact was unable to be made with the Colombian ship carrying the drugs, and the boats returned to port in Sydney on 31 May 2015 without the expected drug cargo.

24. The third conspiracy, reflected by count 3, is the Saxon Progress Conspiracy. It involved Joseph D’Agostino and Frank D’Agostino, Person A, Person C, Jonathan Cooper, Richard Lipton, John Tobin, Stuart Ayrton, James Collins and others in a planned importation of about 610 kilograms of cocaine from South America.

25. The conspirators met or were otherwise in communication between about 5 December 2015 and mid-March 2016 to further the plan. An ocean going vessel, the Saxon Progress, was chartered by Person A, and crew secured for its voyage to meet a ship expected to be off Australian waters in March 2016. The plan was to collect 24 or 25 bales of cocaine at sea, from the Vague A L’Ame, a yacht sailing from South America, with each bale expected to contain 25 kilograms of cocaine.

26. The importation was frustrated when the French Navy intercepted the Vague A L’Ame in French Polynesian waters, and seized the crew and cargo. Found aboard was 610 kilograms of high purity cocaine, packed in 46 bales.

27. Not knowing of the seizure of the Vague A L’Ame, the Saxon Progress sailed from port in Tasmania for the anticipated rendezvous. The fate of the drugs and the South American ship was soon discovered, and the Saxon Progress returned to port.

The Submissions of the Parties

28. The applicant contends that each of the three considerations enumerated in Middis applies to his case. He submits that the evidence against him is both weaker than and different to that of the others indicted with him; and that some of the evidence against the other accused is inadmissible against, and prejudicial to him; some of it highly prejudicial.

29. Conceding that, ordinarily, trials involving co-accused should be jointly held, he contends that, in the circumstances of this matter, the balance of convenience does not point strongly to a joint trial. A joint trial for five accused over a number of months would involve the applicant in time and expense that is not referable to the charge against him. Conversely, a trial of count 1 alone, or of the applicant alone, would have a much narrower focus than a lengthy multiple-accused trial, with fewer issues likely to arise for determination.

30. The applicant submits that the interests of justice require that count 1 be separately tried from counts 2 and 3.

31. The Crown opposes the severance of the indictment, arguing that the public interest is firmly in favour of a joint trial. It points to the lesser cost of a single trial than multiple trials; the inconvenience to witnesses common to all counts and cases against the accused persons if multiple trials were conducted; the need to finalise the trial process as expeditiously as possible; and the minimisation of the risk of inconsistent findings and outcomes where fewer trials are held. The Crown further submits that in a trial for a criminal conspiracy, evidence will be led to establish the existence and nature of the conspiracy, and the co-conspirator’s rule will apply.

32. Bearing in mind the limited nature of any prejudice that might flow to the applicant from a joint trial, the Crown submits that the balance of his interests in receiving a fair trial, and those of the community in the efficient and expeditious disposition of trials, favours a joint trial.

33. The parties agreed that the order that the Court should consider was one to separate the trial of the applicant for count 1 from the trial of the co-accused for that count, and from the trial relating to counts 2 and 3. Different considerations apply to the co-accused in count 1 and this applicant cannot determine the position relevant to the D’Agostino brothers.

34. In circumstances where no other accused person has made an application for a separate trial, and where the Crown does not propose to sever any count or accused from the indictment it presents, the order if it were to be made would be an order to separate the trial of the applicant from his present co-accused.

Consideration

35. The question of whether one count on an indictment should be tried jointly with other counts, or whether one accused person should be jointly tried with other accused persons, is rarely straightforward. There are frequently competing interests to consider, and it is seldom that all merit falls on one side of the argument.

36. As the applicant conceded, the determination of an application such as that made by him is governed by the interests of justice, and it is for him to establish that a separate trial order should be made because a joint trial would give rise to a real risk of positive injustice to him.

37. Although it is not determinative, I have had regard to, and accept, the applicant’s submissions as to the balance of convenience. Ordinarily, that is a feature which favours related matters being heard together, for the sake of efficiency and convenience, but I am persuaded that, in the circumstances of this case, the resources required to hear a separate trial will not greatly add to those consumed by a joint trial.

35. If the applicant is tried separately from the co-accused, and from proceedings for counts 2 and 3, there will be some duplication of evidence, and some inconvenience to witnesses, but it will be confined.

36. The Court was advised that the applicant does not dispute the evidence relating to physical surveillance placing him at various locations on particular dates; this evidence could thus be led from a single police witness, or placed before the jury by statement of agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW). The time that would otherwise be spent in taking evidence from surveillance officers, and which would be led at any joint trial, will be saved.

37. [REDACTED].

38. Finally, the electronic evidence relevant to the applicant is very limited.

39. There is a realistic prospect that a trial of the applicant alone will be short and efficient.

40. At any joint trial the applicant will be put to the very considerable expense of funding legal representation over a number of months, as opposed to days or weeks. He will also be obliged to be present in court every day, even though there may be only a small number of those days taken up with evidence or submissions of relevance to his case.

41. Overall, I am persuaded that there will be no great saving to the community in a joint trial involving the applicant, and no great expense or inconvenience if the applicant’s trial is separately heard.

42. That is a consideration, but other features carry greater weight. In ordering that the applicant’s trial be separately heard from that of the four co-accused I concluded that a joint trial could in this instance lead to incurable prejudice to the applicant. My concern was that the evidence against the applicant was different to, and lesser than, that admissible against the co-accused, and that impermissible prejudice could flow to the applicant as a consequence of a jury hearing all of the evidence together.

43. In part, that arises because only one of the three counts is relevant to the applicant. Although he has been joined as an accused in an indictment charging three separate offences, his alleged involvement is confined to count 1 only, and in circumstances where that involvement is of shorter duration than the involvement of the co-accused.

44. The evidence of the applicant’s involvement is, in summary form, [REDACTED], evidence of physical surveillance from police officers [REDACTED], and a recording of the conversation of 22 October 2014. The electronic evidence is suggestive of a degree of reticence on the applicant’s part as to his involvement in the plot, and the Crown case is that he played no further part in the Fijian Conspiracy after 4 December 2014.

45. The involvement of the two co-accused is alleged to have continued after that date, with positive steps taken to effect the importation of heroin, including making arrangements for the UCO to travel to Fiji to liaise with a contact there about it.

46. As the Crown pointed out, the co-conspirators rule applies to considerations of admissibility: Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22. However, even accepting that the Crown can establish the applicant’s participation in the conspiracy such as to make evidence of the statements and acts of other conspirator’s admissible against him, in my conclusion the case against the applicant is nevertheless weaker than that of the other accused charged by count 1, because of the limited electronic evidence involving him, the seemingly equivocal nature of his recorded comments of 22 October 2014, and his early withdrawal from the scheme.

47. [REDACTED]. In the circumstances of this matter, the case against the applicant is not as strong as that against the co-accused, against whom there is a greater weight of independent evidence.

48. Acknowledging that the Court has not heard full argument from trial counsel on this issue, and thus what follows could only be a preliminary view, the evidence relevant to counts 2 and 3 is, in my opinion, not admissible against the applicant. Although it may be that the Crown will not seek to rely upon this evidence in support of its case against the applicant, the Crown was not able to confirm that such was certainly the position.

49. In particular, some references in the evidence to the applicant relevant to events after 4 December 2014, and after the end of the Fijian Conspiracy, may be relied upon by the Crown to demonstrate an association between the applicant and other alleged conspirators, and to establish that further plans for an importation were being formulated. Such evidence could only be prejudicial to the applicant.

50. Whilst it may be that a clear direction to the jury hearing a joint trial could address that potential prejudice, I am concerned that no direction could adequately deal with the prejudice occasioned to the applicant by associating him with the vast amount of evidence relevant to counts 2 and 3, evidence and charges reflecting acts that have no connection with him.

51. The bulk of the evidence to be led before the jury at a joint trial of the five accused persons concerning three charges will not be admissible against the applicant, and many weeks will be taken up hearing evidence that has no relevance to him. There is a clear danger that any jury could be overwhelmed by this evidence, and find it difficult to separately consider the case against the applicant, without being swayed by other evidence heard during the course of the trial overall.

52. There is a risk that the Crown’s case against the applicant could be strengthened by the effect of evidence inadmissible against him; in effect, the applicant might appear to be guilty to any jury because of his association with the co-accused and the considerable evidence against each going to counts 2 and 3.

53. If this risk manifested, the applicant could not receive a fair trial.

54. Being persuaded that there was such a risk to the applicant if his trial proceeded jointly with that of the four co-accused, the Court granted the application for a separate trial. The orders made were as follows.

orders

58. The orders of the Court are:

1. Pursuant to s 21(2)(b) of the Criminal Procedure Act 1986 (NSW), count 1 be severed as it applies to Jose Garcia and that a separate trial be held for him on the charge with which he is indicted;

2. Reasons are reserved;

3. Matter to be listed for mention on a date to be fixed to fix a fresh trial date; 

4. [REDACTED].

1. [REDACTED].

2. [REDACTED].

1. [REDACTED];

2. [REDACTED];

3. [REDACTED].

3. [REDACTED].

4. [REDACTED].

5. Vacate trial date of 14 October 2019 for Garcia only;

6. Vacate s 77 order for his attendance on 14 October 2019.

*********

Amendments

07 November 2024 - Typographical amendment to coversheet.

Decision last updated: 07 November 2024