R v Scardigno - [2014] SADC 169

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SCARDIGNO & ANOR
[2014] SADC 169
Ruling of His Honour Judge Slattery
7 November 2014
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
Application by the accused Scardigno for a stay of prosecution in relation to Count 1 and severance of Counts 2, 3, 4, 5 and 6 from the co-accused.
Application by the accused Stratis for a stay of proceedings in relation to Counts 4, 5 and 6, or alternatively, severance of Counts 4, 5 and 6 for separate hearing.
Held:
1. Both applications for stay are dismissed.
2. Order for severance of Counts 4, 5 and 6 for separate hearing against the accused Stratis.
Firearms Act 1977 (SA) s 11; Evidence Act 1929 (SA) s 34P; Controlled Substances Act 1984 (SA) ss 4, 32; Firearms Regulations 2008 (SA) r 5; Criminal Law Consolidation Act 1935 (SA) s 278, referred to.
R v Austin (1995) 84 A Crim R 374; Walton v Gardiner (1993) 177 CLR 378; Jago v District Court (NSW) (1989) 168 CLR 23; R v El Azzi (2001) 125 A Crim R 113; Rona v District Court (SA) (1995) 63 SASR 223; Rogers v R (1994) 181 CLR 251; R v Chapman [2008] SADC 158; R v Smith [1955] 1 VR 10; R v Harbach (1973) 6 SASR 427; R v Collie & Ors (1991) 56 SASR 302; R v Demirok [1976] VR 244; Webb; Hay v R (1944) 181 CLR 41; R v Gillard & Preston [2000] SASC 454, considered.

R v SCARDIGNO & ANOR
[2014] SADC 169

In this action there are three remaining defendants. A fourth defendant, Collings, was charged as follows:
Trafficking in a Large Commercial Quantity of a Controlled Drug. (Section 32(1) of the Controlled Substances Act, 1984).
Collings entered a guilty plea to that charge and has been dealt with by the court on sentence.
The three remaining defendants are charged as follows:
Phillip John Iskra and Susan Kellie Scardigno are charged with the following offence:
First Count
Statement of Offence
Trafficking in a Large Commercial Quantity of a Controlled Drug. (Section 32(1) of the Controlled Substances Act, 1984).
…
Phillip John Iskra is charged with the following offences:
Second Count
Statement of Offence
Trafficking in a Controlled Drug. (section 32(3) of the Controlled Substances Act, 1984).
…
Third Count
Statement of Offence
Possessing a Prescribed Drug Without a Licence. (section 18(3) of the Controlled Substances Act, 1984).
…
Apostolos Stratis is charged with the following offences:
Fourth Count
Statement of Offence
Possessing a Class H Firearm Without a Licence. (section 11(1) of the Firearms Act, 1977).
…
Fifth Count
Statement of Offence
Possessing a Class H Firearm Without a Licence. (Ibid).
…
Sixth Count
Statement of Offence
Possessing a Class H Firearm Without a Licence. (Ibid).
…
The defendant Scardigno and Stratis have each brought applications in the following terms:
Scardigno Rule 14 Notice
The applicant hereby applies to the court for the making of the following orders:
1.   That the proceedings in relation to Count 1 as alleged against the applicant be permanently stayed.
Particulars of grounds relied upon are as follows:
1.1 The continuation of these proceedings would bring the administration of justice into disrepute and would constitute an abuse of the processes of the Court as the prosecution of this count as against the applicant is foredoomed to failure.
There is no evidence that the applicant sold the drugs at issue or possessed them with an intent to sell. Nor otherwise is there any evidence that the applicant took part in the process of sale in that she stored the drugs, carried transported, loaded or unloaded the drugs, packaged the drugs, guarded or concealed the drugs, provided finance for the drugs or provided premises for use in connection with the alleged offence.
The state of the evidence is as follows:
1.1.1There is no evidence that the applicant had possession of the drugs at issue at any stage.
1.1.2There is no evidence that the applicant was present at any stage of the alleged commission of this offence.
1.1.3There is no physical evidence linking the applicant to the crime of the drugs at issue.
1.1.4None of the relevant evidence is linked to the applicant’s home or her property otherwise.
1.1.5It is not alleged that the applicant had any contemporaneous involvement in any aspect of the commission of the alleged offence.
1.1.6There is no evidence of the usual indicia of drug trading which attracts to the applicant.
1.2 The evidence to be led in support of this charge, if accepted, is incapable of proving the charge as alleged against the applicant.
Scardigno Rule 15 Notice:
The applicant hereby applies to the court for the making of the following orders:
1.   The trial in relation to Count 1 is heard separately from the trial in relation to the balance of the charges on the Information, comprising counts 2 to 6 inclusive.
Particulars of grounds relied upon are as follows:
1.1 Counts 4 to 6 do not form part of the same facts as the remaining charges nor are they part of a series of offences of the same or similar character as required by section 278(1) Criminal Law Consolidation Act 1935 (SA). They are not properly joined to counts 1 to 3 inclusive as a result.
1.2 That if the charges are considered to be properly joined that they ought to be severed as their joinder will cause the applicant to be prejudiced and/or embarrassed in the presentation of her defence. This complaint applies to counts 2 to 6 inclusive.
1.3 A joint trial will result in evidence being before the jury that is not relevant to the case against the applicant.
1.4 A joint trial will result in evidence being before the jury that is inadmissible against the applicant and otherwise prejudicial in nature.
1.5 The admissible evidence to be led against the applicant is susceptible to being afforded disproportionate weight as a result of the introduction of irrelevant and/or inadmissible evidence that will be led at a joint trial.
1.6 The prejudice suffered as a result of the joinder of all charges is such that the risk of potential misuse of evidence is not capable of being obviated by directions to the jury.
Stratis Rule 15 Notice:
Background
1.   Mr Stratis is charged on Ex-Officio Information with Possessing a Class H Firearm Without a Licence x 3.
2.   He is charged jointly with the Defendants Iskra and Scardigno, however those defendants face charges of Trafficking a Controlled Drug and Possessing a Prescribed Drug Without a Licence.
3.   The Crown alleges that Mr Stratis intended to supply the alleged firearms the subject of counts 4,5 and 6 on the Information to the alleged “cannabis syndicate” comprised by Defendants Iskra, Scardigno and Collings (separately charged), and that telephone intercept material reveals that Mr Stratis had previous dealings with firearms with Mr Iskra.
4.   Mr Stratis contends that the charges concerning him are improperly joined to the other charges on the Information or that they ought to be severed from these other charges.
5.   Separately, Mr Stratis seeks a permanent stay of the proceedings against him because the prosecution is foredoomed to failure. [footnotes omitted]
I deal first with the stay argument of the defendant Scardigno. Before embarking on the merits of the application, it is worthwhile to identify the basis upon which the prosecution puts its case against Ms Scardigno.
At the relevant time, the co-accused Iskra lived at 49 Seaview Road, Tennyson. Ms Scardigno lived at 478 Grange Road, Fulham Gardens. Mr Stratis lived at 12 Henry Street, Croydon. Mr Collings was apprehended on the Sturt Highway on 20 January 2013 whilst travelling on a Toyota Land Cruiser to Sydney New South Wales. Secreted within a specially built compartment in the Land Cruiser body was some 40 kilograms of cannabis with a street value of upwards of $232,000.
At Collings home, the police found a Ford Territory 4-wheel drive motor vehicle with an adjusted fuel tank. The fuel tank could be used as a hiding place in the same fashion as the space within the Land Cruiser.
The evidence discloses that in the period from about June or July 2012, there were a number of telephone communications between Iskra, Scardigno and Stratis. Some of those communications have been reproduced. They reveal the usage by the participants of language in the form of code. This type of language is well familiar to the courts as that used in drug dealings; it is ordinarily used by participants to confuse and to obviate detection and identification of activities.
The prosecution case is that the three participants were involved in a joint enterprise. Some of the usual directions given to a jury on the topic of a joint enterprise include the following:
Joint Enterprise
If two or more persons join together in a joint criminal enterprise:
Every act done, and word spoken, in furtherance of that enterprise by any one of them, is, in law, done and spoken by all of them;
The combined actions of two or more persons with a common criminal intent in implementing an arrangement previously agreed to by them will make them all guilty of the resulting crime;
The concept of a joint criminal enterprise implies that the persons concerned are acting as a team to achieve a mutually agreed result.
The persons’ presence must be by agreement with the other for the purpose of furthering and achieving the commission of the crime.
That agreement may be:
The result of a carefully worked out plan; or
It may be made on the spur of the moment and without spoken words; and
It may arise as a matter of inference from proven conduct established beyond reasonable doubt.
What the prosecution must prove is that the way the crime was actually committed must have been in the contemplation of the parties, including the accused, as an incident or outcome of their joint criminal enterprise.
This is not an exhaustive list. It emphasises the aspect of the need for the jury as the trier of the facts to objectively ascertain agreement and purpose, whether planned or spontaneous and arising actually or by inference.
At the commencement of this application I asked the prosecutor the following questions:
1What is the joint enterprise that is alleged?
2What is the evidence of the joint enterprise?
3What is the evidence of trafficking of a large commercial quantity of cannabis?
4What is the evidence connective Ms Scardigno to the joint enterprise?
5What is the evidence of the knowledge of Ms Scardigno of the trafficking of a large commercial quantity of cannabis?
I did so because I was of the view that the responses given would better inform the defendants of the approach of the Director.
The prosecution has submitted that its case against Ms Scardigno in relation to Count 1 was an inference based case and that there was a reliance upon circumstantial evidence. It follows that the aspect of the circumstantial evidence case requires a direction to be given that if the jury reaches the conclusion on the facts of the guilt of one or more accused then it must be the only conclusion available on the evidence.
The evidence the prosecution seeks to lead against Ms Scardigno is in several forms. Her home was searched, a safe was located and in it, police found $35,750 in cash. Ordinarily this would at least fall into the category of discreditable conduct evidence for section 34P of the Evidence Act 1929 (SA). There were also some receipts in the safe.
The prosecution will make much of the amount of money in the safe in a domestic home for a person such as Ms Scardigno who may otherwise not be able to explain the presence of such a large amount of cash in her home safe. It is no leap of faith to suggest that Ms Scardigno was holding money intended to be used in or derived from illicit transactions. The money, inferentially, is not derived from Ms Scardigno’s domestic activities and I think a jury would have little trouble with that proposition.
Ms Scardigno also had a level of contact with the co-accused Iskra. In the home of Iskra, the police found all of the usual indications that Iskra is heavily involved in the operation (if there is one) leading to a finding, for example, of a connection with the cannabis in the vehicle driven by Collings on the highway to New South Wales. And drugs and paraphernalia were found in the house connected with methylamphetamine possession and use. This evidence is all potentially very prejudicial to Iskra’s position.
On 17 July 2012, Iskra was involved in phone text exchanges concerning the purchase of a Land Cruiser. There are discussions about the purchase price and about registration papers. Scardigno is told of the purchase. In early January 2013, there are exchanges concerning Collings possession of the vehicle. Those exchanges continue until 19 January 2013 and Collings was arrested on 20 January 2013 in the Toyota Land Cruiser whilst he was in possession of 40 kilograms of cannabis.
There are a number of obviously strong inferences arising from this evidence. The intercepts from Ms Scardigno’s phone disclose at least inferentially that Ms Scardigno had attended to payment of a number of creditors to whom Iskra owed money or inquired about payment of them. There is a number of what may be called “code” conversations. It is to be expected that there will be expert evidence given about these conversations and that the expert evidence will be that the drug transactions are the topics of the conversations.
There were also conversations about the transfer of money. These were potentially about legitimate transactions that involved Iskra and Scardigno but that may well be a matter for the jury. Closer to the events of 20 January 2013, the conversations became more cryptic. On 4 December 2012, there was a conversation about Iskra having a party (an obvious and common euphemism for a meeting) and that some paperwork (a common expression for money or transaction documents) is to be dropped off by Collings, the courier of the drugs.
On 12 December 2012, there is an intercepted conversation between Scardigno and Collings, the courier of the drugs. In it, Collings asks Scardigno about paperwork for a 4-wheeler. A Toyota Land Cruiser is usually a permanent 4-wheel drive vehicle. Collings explains that that the receipt (and the inference is that Scardigno gave him the receipt) had faded so much that it was ineffective. The obvious inference is that the receipt is connected to the vehicle to be driven by Collings. In my view a jury would have no difficulty inferring that the vehicle referred to is the Land Cruiser. To suggest otherwise is almost counter-intuitive and slightly facile.
Scardigno informs him that the vehicle is registered. The vehicle could be the Ford Territory which is at Collings’ home or the Toyota Land Cruiser. Either way, there are a number of important features of circumstantial evidence here. The fact that Collings makes an enquiry of Scardigno about a car (one of them) is also connected (inferentially) with the significance of the prosecution assertion that Scardigno operated as the “bookkeeper” of the joint enterprise. There are two very obvious comments to be made here. If the car belonged to Collings, it is a strange result that Scardigno would hold the registration papers of another person’s car. I think that the jury will have little difficulty with this. The second is the obverse of the first. If Scardigno is a person holding the registration papers why would she be prepared to give them over to Collings in the absence of some understanding between them about both the car and its use.
As a matter of ordinary inference, it is one thing to lend someone your car and give them your keys. It is an entirely different matter to make the car available with the registration papers in the absence of some larger purpose. In my opinion, to suggest otherwise is risible. Later in the same conversation, Collings says (after Scardigno says that she does not have the receipts (demonstrably for the purchase of the car)) as follows:
Collings:No, no, that’s fine. But I thought I better at least have the rego papers with me. You know what I mean?
Scardigno:Oh, alright. Yeah, … I think I’m – I’m pretty sure I’ve got it cause I only paid it recently, didn’t I?
Collings:Yup
It may well be that the expression “didn’t I” is a figure of speech. Equally it may well be that it is not a figure of speech. If it is not, why would Collings know of the process of registration payment unless it was information received from Scardigno and it was a matter of concern to him because it was intrinsic to what he was about to do or was planning to do. The answer “Yup” tends to the latter inference. And what he then did was undertaken in the Land Cruiser and a view of the facts may be taken by the jury that the vehicle being discussed was the Land Cruiser.
These are all jury questions and they are not matters to be answered by me here.
The joint enterprise and the evidence of it, on the prosecution case, must arise by inference. The trafficking evidence and the connection of Scardigno to it, as well as her knowledge of it, also are said to arise on the evidence as a matter of inference and circumstantial evidence.
Ms Scardigno submits that there is no evidence in the declarations that she sold the drugs or possessed them with intent to sell. With reference to section 4 of the Controlled Substances Act 1984 (SA) Ms Scardigno asserts that there is no evidence that she took part in the process of sale:
In that she (did not) store the drugs, carry, transport, load or unload the drugs, package the drugs, guard or conceal the drugs, provide finance for the drugs or provide premises for use in connection with the alleged offence…
Ms Scardigno alleges that there was no evidence that she was present at any stage of the alleged commission of the offence. I am unable to completely agree with that submission. As I have set out above, there is evidence to go to the jury. It is also a matter for the trial judge in the end when deciding any application made at trial by Scardigno. I am unable to agree that there is no actual evidence linking Ms Scardigno to the alleged crime of the drugs in issue or that she did not have any contemporaneous involvement in any aspect of the alleged offence. In my view, Ms Scardigno has put her argument too broadly in that respect and I do not have to decide here whether the case put by the prosecution might survive a no case to answer submission by Ms Scardigno. A careful distinction between those two things must also be maintained here.[1]
[1] R v Austin (1995) 84 A Crim R 374 at 380.
In summary, Ms Scardigno submits that the prosecution case is foredoomed to fail. There was some agreement and some differences in relation to the relevant principles and their application to the facts of this matter. The focus of Ms Scardigno was on the issue of her alleged inability to obtain a fair trial because the prosecution case amounts to an abuse of process. The case would be an abuse of process because, on the argument as it was put, the processes and procedures of the court were being used as instruments of “injustice and unfairness”. As such, no fair trial could be held as a result.
In reliance on the decision of the High Court in Walton v Gardiner[2] the factors on which Scardigno focused in her application were: fairness; that the continuation of the prosecution case was unjustifiably vexatious and oppressive to Ms Scardigno; and, the interests of the administration of justice. It is enough that if one of these tests is satisfied, a stay should follow.[3] A court must be satisfied, that on all of the evidence available to it, the prosecution cannot succeed.[4] Ms Scardigno contends that on the evidence as it is known, the prosecution will demonstrably not be able to satisfy the requirements of section 32 of the Controlled Substances Act 1984 (SA) as it is informed by section 4 of the Act.
[2] (1993) 177 CLR 378 at 396.
[3] Jago v District Court (NSW) (1989) 168 CLR 23 per Mason CJ at 29; Deane J at 56-62; Gaudron J at 75.
[4] R v El Azzi (2001) 125 A Crim R 113.

It is common between the parties, that the presumption in aid of proof does not arise in this case. The prosecution did not make submissions in contradiction of the submissions of Ms Scardigno about section 4 and section 32 of the Controlled Substances Act. The focus of the prosecution submissions was its inference and circumstantial evidence case that I have set out above.
In response, Ms Scardigno contended that the information relied upon by the prosecution does not permit the prosecution to “draw the necessary inferences required to inculpate Ms Scardigno in the alleged offending”. In my opinion, it is not necessary for the prosecution to prove that position on this application. No burden falls upon the prosecution on this application (it falls upon Scardigno) and its case is to be assessed at its highest. The difficulty I have with the submission of Ms Scardigno is that, in the context of the abuse of process contention that she puts, in my view there is insufficient put by her to satisfy me that it is not possible for her to have a fair trial. Nor am I satisfied that the continuation of the proceedings is unjustifiably oppressive or vexatious or brings the administration of justice into disrepute. There is no basis made out and upon which I could make such a finding.
I have formed the view that the prosecution case is not strong, relying as it does on circumstantial evidence and inferences but I am not in a position to say that a jury would not or could not draw the necessary inferences required to inculpate Ms Scardigno. I am satisfied that there is an amount of admissible evidence on the essential elements on this case. I am also satisfied that section 4(5) of the Controlled Substances Act is not an exclusive code of definition that forecloses on any other basis of proof of what is described as the taking of a step in the process of sale of a controlled drug. Thus the questions of if, when and how a jury might draw particular inferences and rely upon particular strands of evidence on an inference basis or in combination on a circumstantial evidence basis to form a view that guilt is the only conclusion, is not a matter which I can finally decide here.
I would not embark upon that process in circumstances where I think that, although the case is not strong, there are in my opinion, significant matters of relevant and admissible evidence that can be put before a jury for their consideration in relation to the position of Ms Scardigno. On one view, it might be said that the prosecution case against Ms Scardigno has particular strength because of the combination of circumstances and facts which lead to an indication of a triumvirate of participation by Scardigno, Collings and Iskra.
In my opinion, I am in the same position that confronted the Court of Appeal in Rona v District Court (SA).[5] The lack of strength of the case against Scardigno enlivens the discretion to stay. In my opinion, the necessary balancing exercise required of me on this application, requires that I give consideration to the public interest in the determination of serious charges, the conviction of the guilty, fairness to the accused and maintenance of public confidence in the administration of justice.[6] I have undertaken that exercise. Having done so, I have decided, in the exercise of my discretion to refuse the stay. I so order.
[5] (1995) 63 SASR 223 at 227-230.
[6] Jago (supra) at 33 per Mason CJ; Walton v Gardiner (supra) at 396 per Mason CJ, Deane and Dawson JJ; Rogers v R (1994) 181 CLR 251 at 256-257 per Mason CJ.
A second application for stay is made by the accused Stratis concerning the nature of the firearms, the subject of the charges against him. These charges are as follows:
Apostolos Stratis is charged with the following offences:
Fourth Count
Statement of Offence
Possessing a Class H Firearm Without a Licence. (section 11(1) of the Firearms Act, 1977).
…
Fifth Count
Statement of Offence
Possessing a Class H Firearm Without a Licence. (Ibid).
…
Sixth Count
Statement of Offence
Possessing a Class H Firearm Without a Licence. (Ibid).
…
Mr Stratis alleges that a permanent stay should be ordered because the prosecution is foredoomed to failure. Primarily, Mr Stratis says that Counts 4 and 5 relate to a Denix imitation single action percussion cap revolver. He alleges that a percussion cap revolver is really a euphemism for a cap gun which is a children’s toy or a novelty item and therefore under regulation 5(2)(c) of the Firearms Regulations 2008 (SA), such an item is excluded from the definition of firearms.[7] Mr Stratis also submitted that the firearm the subject of Count 6 described as an EMGE starter pistol that is self loading and designed to use noise producing 6-mm blank crimped cartridges is not a firearm.
[7] 5—Certain imitation firearms included within definition of firearm
Mr Stratis submits that a starting pistol is not a firearm. He relies upon the decision of Judge Rice of this court in R v Chapman[8]. Stratis concedes, based upon that decision that a modified pistol might be a firearm.
[8] [2008] SADC 158.
I am unable to accept this submission of Stratis. The focus of the decision of Judge Rice in Chapman was on the question of whether the object was designed to be carried by hand and was modified to enable it to fire a projectile (see the definition of firearm: section 5(a)).
Chapman was decided in the background of regulation 5 of the Firearms Regulations 1993 (SA). At that time, regulation 5 provided as follows:
A toy firearm that is not designed to fire metallic projectiles is not included in the definition of firearm in the Act unless, in the Registrar’s opinion, it should be regulated as a firearm under the Act and is the subject of a declaration to that effect by the Registrar published in the Gazette.
Regulation 5 of the Firearms Regulations 2008 is in quite different terms. There is no longer a focus upon a design to fire metallic projectiles. The focus is upon whether the item in question contains a mechanism that imitates that loading mechanism or firing mechanism of a firearm, or as an item that is an imitation of the receiver of a firearm.
Accepting the position of both parties that a toy may be seen as a child’s play thing, meant for amusement rather than serious use,[9] it is not now necessary to show that a toy firearm is one not designed to fire metallic projectiles as was the case under regulation 5 of the 1993 Regulations. The emphasis and focus of the 2008 regulations is quite different. I therefore disagree with the submission of Mr Stratis that the decision in Chapman stands for any proposition that a starting pistol is not a firearm. As a matter of fact, that position might be accepted by a jury, but on a preliminary basis, on a stay argument, that contention is not one that is accepted by me as being sufficient to justify a stay.
[9] See definition of ‘toy’ in the Collins Australian Pocket English Dictionary (10981) at page 903.
There are a number of other reasons for my decision. The question of whether any of the pistols are an item that is a children’s toy or a novelty item, is a question of fact to be assessed in the whole of the background circumstances of the case. Included within that assessment of position is the knowledge, for example, that the items were in the possession of Stratis and that Stratis’ DNA was found on one of the packages of cannabis which was in the car driven by Collings and in respect of which Collings has pleaded guilty and has been sentenced. A further matter is that I have seen the photographs which I have marked Exhibit A5.
Those photographs are to be seen in the background of the other material found in the house. The first firearm was a BBM blank firing imitation pistol. Stratis entered a guilty plea at committal in respect of that firearm. The third firearm was a Class A firearm namely a Sportco Bolt Action rifle which was in operational condition and was loaded with a magazine and ammunition. Stratis entered a guilty plea in respect of that firearm.
The second firearm was the Denix imitation revolver which is the subject of Count 4. That revolver is disclosed in photographs 23-25. The depositions indicate that the revolver has a firing mechanism which imitates the firing mechanism of a gun. There was a sold obstruction in the barrel so that it was incapable of firing live ammunition however it weighed 1.02 kilograms unloaded and so it is a substantial and is a quite heavy item. It is not obviously a children’s toy or novelty item.
The firearm which is the subject of Count 5 is a Denix imitation revolver. It is disclosed in photographs 4 and 5 of Exhibit A5. It has an orange cap on the end of it and it came out of a box in the house. When the hammer of that item is cocked, the cylinder revolves and the hammer falls forward when the trigger is pulled so this imitates the loading and firing of a firearm. There is a metal obstruction in the barrel about 55 mm from the muzzle so the item is incapable of firing ammunition but it also weighs 1 kilogram unloaded. It is therefore also a comparatively heavy item as is the Denix imitation revolver the subject of Count 4. For the same reasons it is not obviously a children’s toy or novelty item. And to succeed in this application, Mr Stratis must do more than make factual assertions from the bar table.
The item under the charge for Count 6 is a starter pistol. It is disclosed in photograph 11 of Exhibit A5. It uses noise producing 6 mm black crimped cartridges and its mechanism was designed to discharge blank cartridges as they were used. This item does not discharge any more than one cartridge because of a malfunction within the item. It weights 280 grams and it imitates the firing mechanism of a gun because it discharges a blank, it makes a loud noise on the pull of a trigger and so, arguably, fulfils regulation 5.
Having seen all of these items within the Exhibit A5, I am satisfied that these are matters for the jury and are not matters in respect of which I would exercise my discretion to stay the charges. To the contrary, I am satisfied having seen the photographs, having heard submissions and having received further information about the firearms themselves that they are matters that should go to the jury and I am also satisfied that they are matters where a jury properly instructed, may well form the view that they are firearms for the purposes of the Firearms Act. However that is a matter upon which I do not need to express a concluded view. I therefore refuse the application for stay because I am not satisfied that the prosecution case suffers from an incurable defect which is readily apparent and clearly fatal to the prospect of success of the prosecution.[10] I am not satisfied that the defence has discharged the onus upon it to achieve an order for a stay of the prosecution and I am certainly not satisfied that the Crown case is defeated by its own expert evidence and therefore is foredoomed to failure.
[10] See Brooking J in R v Smith [1955] 1 VR 10 at 28-29.
In exercise of my discretion I dismiss the application for stay brought by Stratis.
I then turn to the question of the severance of the charges against Stratis. This application is brought by both Scardigno and Stratis. Scardigno applies for an order that the trial in relation to Count 1 be heard separately from the trial in relation to the balance of the charges comprising Counts 2-6 or alternatively that Counts 4-6, the firearms charges, should be severed and heard separately from Counts 1-3. No significant submission was put by Scardigno in relation to the first alternative (the severance of Count 2-6) and I will therefore focus only on the question of the severance of Counts 4-6. For the sake of completeness I would not have granted the application in relation to Counts 2 and 3 in any event and my focus here is upon counts 4, 5 and 6 of the Information.
Scardigno and Stratis submit that Counts 4-6 do not form part of the same facts as the other counts which are drug related matters. They also submit that these counts do not form part of a series of offences of the same or similar character.[11] Scardigno contended that there is also a potential for prejudice or embarrassment in the presentation of her defence but she made no substantive submissions in relation to that matter. That submission was made in support of the severance application for Counts 2-6 but, in the absence of any significant submission from her in relation to Counts 2 and 3, I will deal with the matter on the basis that the submission is made in relation to Counts 4-6 (the firearms matters).
[11] Criminal Law Consolidation Act 1935 (SA) s 278(1).
No doubt, in a jury trial there will be evidence brought in relation to the firearms charges that may be inadmissible against Scardigno and which may cause her prejudice. There is also a possibility of affording disproportionate weight as a result of the introduction of this material before the jury and therefore some prejudice will be suffered. Merely because some prejudice may be suffered in that respect is not, and has never been, the basis for an order for severance.[12]
[12] R v Harbach (1973) 6 SASR 427 at 432; R v Collie & Ors (1991) 56 SASR 302 at 308-309; R v Demirok [1976] VR 244 at 254.
In my opinion, it is often the case that the involvement of a person such as Mr Stratis in the charges brought against Iskra and Scardigno is slightly tangential but is also very compelling. It is also often the case that in drug transactions, there is a separation of responsibility and conduct and one person, for example, may arrange for and supply the drugs, another may be a courier and a third may, for example, provide forms of protection for the whole transaction. The usual forms of protection include the provision of firearms. That is a very general summary of very well known circumstances in prosecutions in drug cases. The provision of a firearm is often the forerunner to the commission of the whole offence. Thus, the provision of firearms may be seen as being intrinsically involved in the whole transaction. In those circumstances, the person who, for example, supplies the firearms will be charged as a participant in the overall offending. That is not the case with Mr Stratis.
My approach to this matter is informed by a number of very well settled principles most of which are directed toward persons being charged with committing crimes jointly but this is not such a case. I have already mentioned that apart from being in possession of the firearms, the only other connection between Mr Stratis and the drug transaction, the subject of the principle charges against the other defendants is the trace of DNA of Mr Stratis found on one of the packages of cannabis detected in the car driven by Collings. The prosecutor has not charged Mr Stratis under Count 1 and I will presume that this follows a decision made by the prosecutor based upon the whole of the available evidence in this matter. That is a matter that I will take into account in the exercise of my discretion on this application.
I have earlier indicated that there are some guiding principles. It is necessary to state them briefly in order to explain my reasoning in this application.
The principles may be described as follows:
1When accused are charged with committing a crime jointly, prima facie there should be a joint trial.[13]
2There are usually good reasons of principle and policy why persons who are alleged to have committed offences jointly, ought to be tried together.[14]
3Consideration by the same jury at the same trial is likely to avoid inconsistent verdicts; the jury should be given an opportunity to hear the full case and have before it the respective accounts and explanations which were given by all the alleged participants in an incident.[15]
4The same witnesses will be called by the Crown in relation to all of the cases against all of the defendants and so obviate any necessity to call a witness twice.
5The question of inadmissible evidence being led against one or other of the accused can be overcome by careful directions as to the use that can be made of that evidence but this possibility does not of itself render separate trials necessary. Juries are capable of appreciating the use that may be made of evidence.
6There is an obvious prejudice to the administration of justice by causing there to be separate trials.
[13] R v Harbach (1973) 6 SASR 427 at 432-433; Webb; Hay v R (1993-1994) 181 CLR 40 at 89; R v Gillard & Preston [2000] SASC 454 at [87]; R v Collie & Ors (1991) 56 SASR 302 at 308-310.
[14] R v Demirok (1976) VR 244 at 254; Webb; Hay v R (supra) at 88-89; R v Collie & Ors (supra) at 307-311.
[15] R v Demirok (supra) at 254; R v Collie & Ors (supra) at 309.
A consideration of these principles indicates, ordinarily, that there is some connection (however indistinct) between the parties who have been charged with common offences. In this case, there is no charge against Mr Stratis of having committed a crime jointly with Iskra and Scardigno. In my opinion, that does not exclude, as a matter of principle and policy, a possibility that the charges against Mr Stratis could or should be heard jointly together with the other charges against Iskra and Scardigno. That said, ordinarily there is some connection to be made between the charges against each of the respective accused which is in some way or other connected with the charges against each of them. That is not the case in this matter. The firearms charges against Mr Stratis stand quite separately from the charges against Iskra and Scardigno. The only connection currently relates to some telephonic contact and the DNA of Mr Stratis on one of the packages found in the Land Cruiser vehicle driven by Collings. That evidence is not sufficiently strong for the prosecutor to have charged Mr Stratis under Count 1 of the Information. Similarly, that evidence would not necessarily or at all lead to the conclusion that in respect of the firearms offences only, Mr Stratis should be charged jointly on the same Information with Iskra and Scardigno.
In my opinion, there is a clear and obvious delineation between the cases to be brought against Iskra and Scardigno and the case to be brought against Mr Stratis. That is apparent based upon the recitation of facts that I have set out above. That being so, there is in my opinion, a very real and substantial prejudice to be suffered by Mr Stratis if the charges against him were heard at the same time as the charges against Iskra and Scardigno. In my opinion, that prejudice would be quite inherent in the presentation of the cases against each of the other accused. Notwithstanding any directions that might be given to the jury, there is a real risk of substantial prejudice being suffered by Mr Stratis. In my opinion, merely because the DNA evidence was discovered (but is not sufficient to cause the prosecution to charge Stratis jointly with Iskra and Scardigno) is not sufficient, of itself, to justify the maintenance of the charges against Mr Stratis on the same Information as the charges against Iskra and Scardigno.
It is with some reluctance that I accede to the application of Mr Stratis for severance of counts numbered 4, 5 and 6 from the Information which I order to be heard separately from the other counts on the Information against Iskra and Scardigno. I so order.

(1) Pursuant to paragraph (c) of the definition of "firearm" in section 5(1) of the Act, a regulated imitation firearm is declared to be a firearm for the purposes of the Act.
(2) A regulated imitation firearm is—
(a) an item that contains a mechanism that imitates the loading mechanism or firing mechanism of a firearm; or
(b) an item that is an imitation of the receiver of a firearm,
other than—
(c) an item that is a children's toy or a novelty item; or

(d) an item determined by the Registrar under sub regulation (3) not to be a regulated imitation firearm.
(3) The Registrar may, on application or on the Registrar's own initiative, determine that a particular item is not a regulated imitation firearm if satisfied that the item cannot readily be adapted to function as a firearm.
(4) The Minister may, by notice in the Gazette, declare an item of a specified class to be a regulated imitation firearm (and such a notice has effect according to its terms despite subregulation (2)).
(5) The Minister may, by subsequent notice in the Gazette, vary or revoke a notice made under this regulation.