R v Jabal; R v Jabal; R v Poulakis
[2019] ACTSC 319
•19 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Jabal; R v Jabal; R v Poulakis |
Citation: | [2019] ACTSC 319 |
Hearing Date: | 21 August 2019 |
DecisionDate: | 19 November 2019 |
Before: | Burns J |
Decision: | See [33] |
Catchwords: | CRIMINAL LAW – PRE-TRIAL APPLICATION – Application to sever indictment – drug importation allegations – five accused awaiting trial – fourteen charges contained in a single indictment – some charges allege joint offences and others relate to the individual accused – balancing considerations of fairness to the accused and the public interest |
Legislation Cited: | Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 43 Court Procedure Rules 2006 (ACT) r 4751 Evidence Act 2011 (ACT) |
Cases Cited: | R v Featherstone; R v Bloxsome(No 2) [2019] ACTSC 90 |
| R v Reid [1999] VSCA 98; 2 VR 605 R v Darby (1982) 148 CLR 668 O’Leary v R (1946) 73 CLR 566 | |
Parties: | The Queen (Crown) Adam Jabal (Accused) Youssef Jabal (Accused) Peter Poulakis (Accused) |
Representation: | Counsel D Renton (Crown) K Ginges (Accused) M Kukulies Smith (Accused) G Brady (Accused) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) Kamy Saeedi Law (Accused) McKenna Taylor (Accused) | |
File Numbers: | SCC 79 of 2019; SCC 82 of 2019; SCC 122 of 2018; SCC 128 of 2018; SCC 130 of 2018; SCC 132 of 2018 |
BURNS J:
The accused, Bilal Omari, Youssef Jabal, Adam Jabal, Peter Poulakis and Emin Yavuz are currently awaiting trial in this Court on various charges contained in a single indictment dated 6 June 2019. Some of the charges allege joint offences, and some of the charges relate to the individual accused only. All of the charges are said to arise from a course of conduct by the accused which the Crown says establishes that each of them were part of a drug trafficking enterprise.
By an application dated 1 August 2019, the accused Youssef Jabal seeks orders that the indictment be severed such that Counts 1 and 2 be heard at a trial not including Counts 5 through to 14. He also seeks orders that the Crown not be permitted to lead or rely upon tendency or coincidence evidence at his trial where a relevant notice under the Evidence Act 2011 (ACT) (the Evidence Act) has not been served on him. A similar application was filed by Peter Poulakis. Adam Jabal has also filed an application seeking orders that the indictment be severed so as to require Counts 13 and 14 to be heard in a trial not involving Counts 1 to 6. No application for severance of the indictment was pursued by Emin Yavuz or Bilal Omari.
The Crown opposes each of these applications.
The charges
The indictment contains fourteen counts, which may be summarised as follows:
Count 1: a charge that between about 28 August 2017 and 6 December 2017 each of the accused, with the exception of Adam Jabal, jointly imported a marketable quantity of a border controlled drug, namely MDMA.
Count 2: a charge that between about 13 November 2017 and 30 November 2017 each of the accused, with the exception of Adam Jabal, jointly imported a commercial quantity of a border controlled drug, namely MDMA.
Count 3: a charge that between 19 September 2017 and 20 September 2017, Peter Poulakis engaged in transactions for the purpose of avoiding reporting under s 43 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
Count 4: a charge that between 14 November 2017 and 15 November 2017, Peter Poulakis engaged in transactions for the purpose of avoiding reporting under s 43 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
Count 5: a charge that on 5 December 2017, Peter Poulakis trafficked in a controlled drug other than cannabis, namely dibutylone.
Count 6: a charge that on 5 December 2017, Peter Poulakis possessed a firearm that he was not authorised by a licence, permit or otherwise to possess.
Count 7: a charge that on 8 September 2016, Bilal Omari trafficked in a trafficable quantity of cannabis.
Count 8: a charge that on 5 December 2017, Bilal Omari trafficked in a controlled drug other than cannabis, namely cocaine.
Count 9: a charge that on 5 December 2017 Bilal Omari attempted to pervert the course of justice.
Count 10: a charge that on about 6 December 2017, Bilal Omari possessed prohibited weapons that he was not authorised by a permit or otherwise to possess.
Count 11: a charge that on 5 December 2017, Youssef Jabal was knowingly concerned in the commission of an offence by Bilal Omari, being trafficking in a controlled drug other than cannabis, namely cocaine.
Count 12: a charge that on 5 December 2017, Youssef Jabal attempted to pervert the course of justice.
Count 13: a charge that on 5 December 2017, Adam Jabal was knowingly concerned in the commission of an offence by Bilal Omari, being trafficking in a controlled drug other than cannabis, namely cocaine.
Count 14: a charge of that on 5 December 2017, Adam Jabal attempted to pervert the course of justice.
The allegations
Counts 1 to 4 allege the importation of border controlled drugs, and associated money laundering offences. It is alleged by the Crown that the evidence will establish that each of the accused, with the exception of Adam Jabal, between 5 May 2017 and 4 December 2017 entered into agreement to import border controlled drugs into Australia. It is alleged that two such importations occurred. It is accepted by all parties that these charges should be heard together.
Counts 5 and 6 relate solely to Peter Poulakis. At about 10 am on 5 December 2017 it is alleged that police executed a search warrant at the residence of the accused Peter Poulakis and his partner. During the course of the search, police allegedly located approximately 1.19 kg of dibutylone in the garage of the premises. This is the basis of Count 5. Police also located a black Crosman-brand CO2-powered airgun in the garage. This is the basis of Count 6.
On 5 December 2017 police also executed a search warrant at the Australian National University (ANU), the workplace of the accused Omari. During the course of the search, police located a mobile telephone which was linked to the drug importation alleged in Count 1. A telecommunications service linked to this device was subscribed in the name of GI, and this name and device were linked to the second alleged importation described in Count 2. The accused Omari told police that he had obtained that mobile phone from the accused Poulakis. During the course of the execution of the search warrant, it is alleged that the accused Omari contacted a number of people by telephone and, while speaking in the Arabic language, arranged through the accused Youssef Jabal for the accused Adam Jabal to go to his motor vehicle parked in a car park at the ANU to remove a quantity of drugs located in the vehicle. Police subsequently located that vehicle and allegedly observed the accused Adam Jabal in the vicinity. Police located over 32 g of cocaine and indicia of drug trafficking in and around that vehicle. These allegations form the basis of Counts 8, 9, 11, 12, 13 and 14 on the indictment.
On 6 December 2017, police executed a search warrant at the ANU College of Business and Economics, said to be an alternative work location within the ANU for the accused Omari. Police searched the accused Omari’s workstation and allegedly found three extendable batons located in a cabinet behind his desk. This is the basis of Count 10 on the indictment.
The above is a very brief sketch of the allegations made against the accused. The Compilation Statement of Facts prepared by the Crown runs to over 340 paragraphs, and refers to a substantial quantity of telephone intercept material involving the accused. The Crown case is that the accused, with the exception of Adam Jabal, were all party to an agreement to conduct a drug trafficking enterprise, with the various acts which form the basis of the charges on the indictment being part of that agreement.
Relevant principles
Rule 4751 of the Court Procedure Rules 2006 (ACT) (CPR) states:
An accused person may apply for –
(a) separate trials of different charges alleged against the person in the same indictment; and
(b) a separate trial from that of someone else committed for trial and charged in the same indictment.
An accused person may also apply pursuant to s 264 of the Crimes Act 1900 (ACT) to have charges alleged against them in an indictment severed from other charges in the same indictment. Section 264(2) provides:
(2)If, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his or her defence because of being charged with more than 1 offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for 1 or more offences charged in an indictment, the court may order a separate trial of a count or counts of the indictment.
Recently, in R v Featherstone; R v Bloxsome(No 2) [2019] ACTSC 90, Mossop J considered the principles applicable in an application to sever an indictment as between the accused, and said at [16] – [17]:
16. The starting point is that where offences are related by time or other circumstances then the interests of justice are best served by having them tried together. A convenient starting point is the decision in R v Assim [1966] 2 QB 249 (quoted with approval by the New South Wales Court of Criminal Appeal in R v Fernando [1999] NSWCCA 66 at [199]). There, Sachs LJ delivering the judgment of the Court of Criminal Appeal said:
As a general rule, it is of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are, upon the available evidence, so related whether in time or other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases.
17. The reasons for this are articulated in the decision of R v Demirok [1976] VR 244 at 254:
The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be a very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.
The Crown also drew my attention to the decision in R v Reid [1999] VSCA 98; 2 VR 605:
162. S371 of the Crimes Act 1958 provides that, subject to the Rules under that Act, charges for more than one indictable offence may be joined in the same presentment. R2 provides that charges for any offences may be joined in the same presentment if they are founded on the same facts or form or are part of a series of offences of the same or similar character. In our view, each of the requirements contemplated by the Rule has been made out in this case (although it would have been sufficient if only one had been satisfied).
163. Before analysing the two requirements, it is desirable to mention that it has long been accepted that the Rule should receive a liberal interpretation consistent with the policy underlying it, namely, to enable the joinder of charges which may be "properly and conveniently" dealt with together. This involves the striking of a balance between on the one hand, the need to ensure that by charging the accused with separate offences in the one presentment he or she is not thereby unduly prejudiced or embarrassed at trial by reason of evidence being led in respect of each of the charges and, on the other, the interest of the public in the efficient allocation of judicial resources, consistency in verdicts and expeditious and final litigation as well as with the convenience of witnesses (R v Demirok, at 254-255; Ludlow v Metropolitan Police Commissioner[1971] AC 29; R v Kray[1970] 1 QB 125, 130-131; R v Collins (1994) 76 A Crim R 204, 208).
164. The requirement that the charges are to be founded on the same facts does not mean that the facts in relation to the charges must be identical in substance or be virtually contemporaneous. It is sufficient if the charges have a common factual origin (Barrell v Watson (1979) 69 Cr App 250, 252-253), or if there is a sufficient connection or nexus between them (R vCollins, at 208). In order to determine if the relevant nexus exists, one has regard to the charges and, broadly, the evidence that is to be led in relation to them by the parties. In the present case, it is fairly plain that the charges have the same factual origin. Put briefly, on the prosecutor's case, the factual origin of the charges and the nexus between them was the applicant's endeavour to keep his bank at bay and prevent it from pressing him to repay the large debt he owed it. In pursuit of that end, he falsely represented to it that he was owed substantial sums by SCA. A successful float of SCA was a necessary condition precedent to the appellant gaining funds to repay the bank so that his actions in relation to it including theft of money belonging to SCA and the false documentation and information he provided in connection with that transaction in order to hide the true position, are all inter-connected. In turn, they gave rise to the cover up during the second phase of his deceitful conduct which we have previously summarised. In the circumstances, therefore, the charges were founded on the same facts within the meaning of R2.
165. It is also plain that the offences in question form a series of transactions (or offences) which are of the same or similar character within the meaning of R2. It is the presence of a nexus or connection between the charges that establishes they constitute a series of such transactions or offences (De Jesus v R (1986) 22 A Crim R 375, 389; Ludlow v Metropolitan Police Commissioner, at 39-40; R v Kray, at 130-131; R v Collins, at 208, R v Clayton-Wright[1948] 2 All ER 763, 765). That the counts form part of a series of interconnected transactions or that there is a sufficient nexus that exists between them in this case can be seen from the fact that these counts and the evidence led in respect of them, are so closely interwoven that it would not have been appropriate to sever them...
Counsel for Adam Jabal referred to the decision of Hunt J at CL in R v Middis (Unreported, New South Wales Supreme Court, Hunt J, 27 March 1991):
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 will be caused to him in a joint trial.
Submissions on behalf of the accused
The accused Adam Jabal submitted that it is not alleged that he was involved in either of the drug importations alleged in Counts 1 and 2 on the indictment, nor is it alleged that he was involved in the events relevant to Counts 3 to 6 which concern only the accused Poulakis. He further submitted that Count 7 concerned a quantity of cannabis located at the accused Omari’s workplace in September 2016 and Count 10 concerned three batons located in a search of Omari’s workplace. He submitted that he was not implicated in any of those alleged offences. Adam Jabal submitted that the Crown’s Case Statement made only very brief references to him prior to the events of 5 December 2017, and that none of these references implicated him in any offences that occurred prior to that date. It was his ultimate submission that Counts 8, 9, 11 to 14 should be severed from the current indictment and tried separately.
The accused Youssef Jabal conceded that there was significant cross admissibility as between Counts 1 to 4 and that those matters should therefore be heard together. He submitted that as Counts 5 and 6 relate solely to the accused Poulakis, there was a risk of unfair prejudice to him if a joint trial were held on an indictment with those counts. He submitted that there was no cross admissibility of evidence, and the evidence raised a real risk of “guilt by association”. With regard to Count 7, the accused submitted that it was remote in time from any allegation concerning him, and was not relevant to prove any of the matters alleged against him. He again submitted that there was a real risk of unfair prejudice by “guilt by association”. With regard to Counts 8 to 14, the accused submitted that there was a very limited cross admissibility as between these counts and Counts 1 and 2. He submitted that the allegations pertaining to cocaine and associated allegations of attempting to pervert the course of justice are in substance separate and distinct from the matters arising in Counts 1 to 4 inclusive, as well as Counts 5, 6 and 7. He submitted that there is a real risk of unfair prejudice to him in the event that Counts 8 to 14 were to be heard together with the other matters. He submitted that the jury would have before it evidence of matters that are in essence separate and distinct from each other, but nonetheless reveal evidence of further alleged criminality. Youssef Jabal submitted that Counts 1 to 4 be heard alone, that Counts 8 to 14 be heard separately, and that Counts 5 to 7 also be heard separately.
Supplementary submissions were received on behalf of Youssef Jabal in response to submissions made on behalf of the Crown. I will refer to these supplementary submissions while outlining the Crown’s submissions.
The accused Poulakis sought orders that Counts 1 to 4 be heard separately from Counts 7 to 14, or, alternatively, that his trial be heard separately from the trial of the remaining co-accused. He submitted that where evidence of the implication of the accused in one offence is likely to have adverse effect on the jury’s mind in deciding the accused’s guilt with respect to a second offence, and the evidence is not admissible towards proof of the second offence, the accused must be protected against the risk of impermissible prejudice. If a direction to the jury is not sufficient to guard against that risk, the trials should be separated: R v Verma (1987) 30 A Crim R 441. He also submitted that even where common purpose was alleged against a number of accused, separate trials may still be required where the evidence against one accused is significantly different to the evidence against the co-accused: R v Darby (1982) 148 CLR 668.
The accused Poulakis submitted that Counts 7 to 14 do not involve him at all, and there is nothing to link him to those charges. He submitted that the evidence relating to those charges was not admissible against him. He said that he understood that the Crown intended to use the evidence relating to those charges in the following ways:
(a)as context, background and relationship evidence;
(b)as circumstantial evidence of the association between each of the accused and their association with drugs;
(c)as negativing innocent association;
(d)as demonstrating an understanding between them as well as trust between them; and
(e)as evidence from which both the existence of the agreement generally in relation to all the relevant accused, and their specific participation in the agreement can be established circumstantially.
The accused Poulakis submitted that this would lead to significant prejudice against him as:
(a)evidence wholly inadmissible against him will be used to establish the existence of an agreement, which if established can be used against him;
(b)it would be almost impossible for a jury to use the evidence of the other counts to establish the existence of the agreement generally against others but then not use that against the accused. This risk could not be ameliorated by appropriate directions to the jury;
(c)there is a risk that the jury will misuse the evidence;
(d)a significant portion of the trial will be taken up with the evidence concerning Counts 7 to 14, and separating the evidence at the end of the trial will be a difficult task; and
(e)the applicant will be required to fund a trial that is likely to be twice as long as that which would occur if he were tried alone.
The Crown’s submissions
The Crown case is that each of the accused, with the exception of Adam Jabal, were part of an agreement to traffic in drugs, including importing and distributing illicit drugs. The Crown contended that the evidence relating to Counts 1 to 4 is circumstantial evidence relevant to Counts 8 and 9 and 11 to 14 and vice versa. In particular, the Crown submitted that the evidence in relation to Counts 8 and 9 and 11 to 14 can provide proof of the fact, nature and scope of the agreement alleged in Counts 1 to 4. The Crown submitted that this is thus capable of rationally affecting the assessment of the existence of a fact in issue in the proceeding. The Crown also seeks to rely on the acts and declarations of each accused, “not as proof of the truth of any assertion or implied assertion of the participation of the other, but as facts from which the combination might be inferred” and the participation in it by the relevant accused: Ahern v R (1988) 165 CLR 87 at [6] – [7].
The Crown submitted that the evidence directly relevant to the different counts is properly regarded as background or relationship evidence relevant to each applicable accused’s state of mind, or relevant circumstantial evidence on which the Crown is entitled to rely because of its interrelationship with other pieces of evidence. The Crown referred me to the decision of the New South Wales Court of Criminal Appeal in R v Serratore [2001] NSWCCA 123, at [37], where Beazley JA, with whom Grove and Whealy JJ agreed, said “Evidence of the conduct of an accused, which is part of a series of connected events, to prove the state of mind of the accused is admissible provided that it is relevant…”. The Crown also referred me to the decision of the Victorian Court of Appeal in Hothnyang v The Queen [2014] VSCA 64 at [20], where the Court adapted and adopted the words of Dixon J in O’Leary v R (1946) 73 CLR 566 at 577, to the effect that without evidence of what occurred at each significant step of the sequence of events, the relevant events could not be truly understood and could only be presented as isolated and not very intelligible events.
With regard to the present case, the Crown submitted that the evidence supporting Counts 1 to 4 (involving Youssef Jabal and Omari) is cross admissible as against Counts 8 and 9, and 11 to 14 (also involving Youssef Jabal and Omari) and vice versa on the basis that it is relevant context, background and relationship evidence. Counts 1 to 4 span the period 28 August 2017 to 6 December 2017. During that period, it is alleged that there were two importations of MDMA pursuant to an agreement. The conduct the subject of Counts 8 and 9 and 11 to 14 occurred on 5 December 2017 at or around the time of the anticipated arrival of the consignments the subject of Counts 1 to 4. The Crown submitted that a central issue at the trial will be establishing the existence of the agreement to import drugs and the participation of each relevant accused in that agreement. It submitted that evidence which tends to establish the relationship between the accused is relevant to establishing both the existence of an agreement and participation therein. The Crown submitted that the fact that Youssef Jabal and Omari are alleged to be parties to the agreement relating to Counts 1 to 4 while engaging in the conduct the subject of Counts 8 and 9 and 11 to 14 demonstrates the nature of the relationship between them and its association with drugs.
The Crown further submitted that the evidence is relevant to the likelihood that Youssef Jabal was aware of the nature of the item that Omari wanted removed from his car, despite Omari not explicitly stating it. The Crown submits that there was a shared understanding about the topic, which is evidenced by Youssef Jabal not asking what it was that needed to be removed. The Crown further submitted that the request by Omari to Youssef Jabal to remove the item in the circumstances and manner in which it was made demonstrates that the two were trusted associates and specifically that Omari trusted him to remove drugs from his car prior to police attending.
The Crown further submitted that the background evidence from Counts 1 to 4 counters an argument that Omari’s request was one for an innocent purpose rather than a guilty one. The existence of the agreement to import drugs provides, the Crown says, a basis for explaining the shared understanding about what it was that needed to be removed from Omari’s car and why it was that Omari asked Youssef Jabal to remove the item when he was unable to contact his brother.
The evidence relating to Counts 8 and 9, and 11 to 14, the Crown submitted, is also relevant to the likelihood that Youssef Jabal and Omari were parties to an agreement to import drugs. It is evidence from which both the existence of the agreement generally in relation to all of the relevant accused, and their specific participation in the agreement can be established circumstantially. It also assists in demonstrating that their association was not an innocent one. The Crown submitted that it also supports an inference that when Youssef Jabal provided funds to the group relating to Counts 1 to 4, he did so knowing that it would be used for drug-related activity.
The Crown accepted that the position in relation to Adam Jabal is different to that of the other co-accused. It acknowledged that he was not charged with being criminally involved in Counts 1 to 4. The Crown submitted that the evidence relating to Counts 1 to 4 has limited cross admissibility to the later charges involving him on the basis of relationship, background and context evidence. It submitted that the evidence is admissible to support an inference of an awareness by Adam Jabal of the alleged activities of the other accused involved in Counts 1 to 4 and consequently to explain his willingness to participate in getting an item from Omari’s car by breaking into it, coupled with an awareness of the likely nature of the item. The Crown accepted that there is prejudice to Adam Jabal from the evidence concerning Counts 1 to 4, but it was not so high that a properly worded direction to the jury would not adequately deal with the situation.
Similarly, the Crown submitted that any prejudice arising from the joinder of Counts 5 and 6, relating to the accused Poulakis, can be dealt with by appropriate directions from the trial judge. The Crown submitted that the evidence is relevant to his potential participation in the agreement and his association with drugs. The Crown also submitted that Count 7, alleging cannabis trafficking by Omari, relates to his potential participation in the agreement in that it demonstrates a prior involvement in drug trafficking. This is relevant, the Crown submitted, to the nature of the agreement which involved using Omari’s place of business, the ANU, as a destination for the receipt of the consignments the subject of Counts 1 to 4. Similarly, the evidence of Counts 1 to 4 is relevant to Count 7 as evidence of his use of his place of business for drug-related activity.
Finally, Count 10, relating to alleged weapon possession by Omari, arises from the same factual circumstances in that it was located during the execution of the search warrant. The Crown accepts that evidence relating to this charge is not capable of rationally affecting the jury’s consideration of the guilt of the other accused. It submitted that the joinder of this charge is supported by pragmatic reasons.
The Crown submitted that none of the evidence involved tendency reasoning.
Consideration
In my opinion, the submissions of the Crown should be accepted. Balancing considerations of fairness to the accused and the public interest in the efficient allocation of judicial resources, consistency of verdicts, convenience of witnesses and finality of litigation leads me to conclude that the accused should face a joint trial on the present indictment. The evidence relating to the charges against Adam Jabal cannot be led in a vacuum. It is accepted by the accused Adam Jabal that the trial of the two counts in which he is named, Counts 13 and 14, must of necessity proceed in a joint trial with Counts 8, 9, 11 and 12. I am satisfied that the evidence relating to Counts 1 to 4 is relevant to Counts 8, 9, 11 and 12 in the way submitted by the Crown. The evidence relevant to Counts 5 and 6 are connected in time with the evidence relating to the other charges. The evidence relating to Count 5 is relevant to demonstrating the accused’s involvement with illicit drugs at about the time of Counts 1 to 4, and is relevant to negativing any suggestion of innocent association with his alleged co‑accused. Any prejudice arising from the evidence relating to Count 6 can be addressed by appropriate directions to the jury.
The evidence relating to Count 7 is relevant in the way submitted by the Crown. The evidence relating to Count 10 is linked in time to Counts 8 and 9, and 11 to 14, and for pragmatic reasons it should not be separated from the indictment. Any prejudice to Omari or the other accused can be dealt with by appropriate directions by the trial judge.
Conclusion
The applications to sever the indictment should be refused.
This decision is not to be published other than to parties until the accused’s trial is completed.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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