R v Sikos

[2016] NSWDC 435

District Court

New South Wales

Medium Neutral Citation:	R v SIKOS [2016] NSWDC 435
Date of orders:	30 November 2016
Decision date:	30 November 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Separation of counts 1 and 2 from counts 3 and 4 and counts 5 and 6
Catchwords:	Criminal - Separate Trial Application
Legislation Cited:	Criminal Procedure Act 1986 - s.21 Drug Misuse and Trafficking Act 1985
Cases Cited:	Mac v The Queen [2014] NSWCCA 24 R v Quach [2002] NSWCCA 519 Harriman v R (1989) 167 CLR 590 Sutton v The Queen (1983-84) 152 CLR 528 R v Ngo and Le [2002] SASC 373
Texts Cited:	Uniform Evidence Law
Category:	Principal judgment
Parties:	Regina George Sikos - Accused
Representation:	Counsel: Mr McCarthy - Crown Mr Picken - Accused
File Number(s):	2015/40892

Judgment

1. HIS HONOUR: In the matter of George Sikos, I indicated from the outset that I propose to order separate trials of the accused in respect of counts 1 and 2 as opposed to counts 3 and 4 as opposed to counts 5 and 6. In other words, the effect of the order that I propose to make is that there be three separate trials in respect of the allegations to be brought against him.

2. There are some preliminary remarks I need to make about the matter. Firstly, I am giving this decision and my remarks on that decision about half past three, on what was supposed to be the first day of the trial, in relation to a matter about which I knew almost nothing when I came on the bench this morning.

3. A motion had been filed in this Court on 28 November 2016 seeking that the accused be tried separately from his “co-accused” in respect of matters with which I am concerned and further, seeking initially that “counts 1 and 2” be tried separately to counts 3 to 6.

4. The second order sought was amended in the course of argument because amongst other things it seemed to me when I raised it with learned counsel for the accused that the arguments being put on behalf of the accused had, for want of a better description, equal relevance or salience to an application for three separate trials rather than two separate trials.

5. Having discussed the matter with learned counsel for the accused the motion was amended in respect of the second order sought to now read “counts 1 and 2 be tried separately to counts 3 and 4 in turn to be tried separately from counts 5 and 6”.

6. I must say with no criticism of learned counsel for the accused or his solicitor it is another unacceptable situation where a motion that goes to the very form of the indictment proposed to be filed by the Crown is filed on the day that the matter is to proceed to trial, the matter having been listed for trial as I would understand it last Monday.

7. One of the reasons I am giving this decision so late in the afternoon is because I have been preoccupied for much of the day - apart from trying to understand what the Crown case is against the accused - with issues raised by the legal representatives of the Commissioner of Police.

8. Again, nothing I say is of any personal criticism of the great professionalism of learned counsel for the Commissioner and his solicitor, but it is to my mind unacceptable that matters of significance raised by the Commissioner’s legal representatives are brought to the attention of the Court with a motion that was filed, as I understand it, late last week in circumstances where the trial of this accused was apparently listed to commence on 28 November as early as March of this year.

9. That particular feature of the matter has equal relevance to the comments I have made about the late filing of the application for separate trials. I appreciate of course the current learned counsel for the accused told me, and I accept, that he came into the matter late. Thus consideration of the issue of the separation of counts so far as that counsel was concerned could only arise in recent times. But this particular case exemplifies much that contributes to the delay in people being brought to trial.

10. The accused has been in custody as I understand it for almost two years and yet matters of significance as to how a particular witness will give his evidence, how the indictment should be framed, are being raised at the last moment thus delaying the commencement of the trial.

11. The indictment that the Crown has provided to me, although at this stage the accused has not been arraigned for obvious reasons, proposed that the accused be tried in respect of six counts concerning three separate episodes of “drug trafficking”.

12. Counts 1 and 2 are concerned with events on 22 December 2014. Count 1 is an allegation of supplying not less than a commercial quantity of the prohibited drug 3,4-methylenedioxymethylamphetamine in an amount of 245.9 grams. Count 2 is an allegation of supplying a prohibited drug, namely cocaine, in an amount of 139.2 grams. Those two counts are concerned with the one transaction undertaken between an undercover officer whose real name is suppressed and a man known as “Christopher Mihelic”.

13. Counts 3 and 4 are concerned with the one episode in effect occurring on 30 December 2014 at San Souci.

14. Count 3 likewise to count 1 is a supply not less than a commercial quantity of the drug 3,4 methylenedioxymethylamphetamine, being 235.1 grams. Count 4, the supply of the prohibited drug cocaine in an amount of 139.7 grams.

15. Counts 5 and 6 are concerned with the same transactions occurring on 8 January 2015. Count 5, to be distinguished from counts 1 and 3, involves the supply of a prohibited drug, namely 3,4 methylenedioxymethylamphetamine, but in this instance being an amount of less than a large commercial quantity of that drug, that is 718.6 grams. Count 6 as with counts 2 and 4 involves the supply of the prohibited drug, namely cocaine, in the amount of 139.4 grams.

16. As with counts 1 and 2 the events giving rise to counts 3, 4 then 5 and 6, involve the supply to an undercover police officer by Mihelic of the prohibited drugs.

17. The Crown has provided me most helpfully with its opening address which has not been the subject of any particular complaint or issue raised on behalf of the accused. There are some aspects of this opening address as it summarises the Crown case against this accused, that need to be pointed out.

18. The accused, Mr Sikos, Mihelic, and a man whose name is Aleksandar Peovski, were all arrested on 9 February 2015 and charged with offences, so far as I understand it, common to the three of them, relating to the three transactions to which I earlier referred, giving rise to the six counts in the indictment proposed to be filed by the Crown.

19. I am mindful of the fact that there may well have been many other charges laid against one or other of the accused, but as I understand the anticipated Crown case against this accused, Mr Sikos, the Crown would allege in respect of each of the transactions, each transaction as I said earlier giving rise to counts in the indictment, Mr Sikos, Mr Mihelic and Mr Peovski were involved in a “joint criminal enterprise” to supply the respective and relevant quantities of the particular prohibited drug identified in the counts in the indictment.

20. The evidence of the arrest of Mr Peovski and the search of his premises gives rise to various pieces of evidence that should be pointed out that are relevant to each, or either, of the respective three transactions to which I have referred. The reason the three men were arrested is essentially because, firstly, Mr Mihelic had initially communicated with and then conducted the respective transactions with the undercover police officer to which I have referred. It follows from the very character of that relationship, if I might call it that, that at relevant times, as I understand it, each of the three accused at various times were subject of police surveillance, both electronic and visual, and as I understand the matter from the detail of the Crown’s outline of its case, there will be extensive evidence to demonstrate a relationship of the accused with both Mr Mihelic and Mr Peovski.

21. I also point out in the context of what could be called the “circumstantial evidence case” relied upon to prove the guilt of Mr Sikos, that part of the material that was found on searching Mr Peovski’s premises was a quantity of cash that had serial numbers that matched the cash handed over to Mr Mihelic by the undercover police officer in relation to each of the transactions.

22. In respect of evidence relevant to counts 1 and 2, $40,750 of the $47,500 handed over by the undercover officer was found in the possession of Mr Peovski. In relation to counts 3 and 4, $39,500 of the $47,500 used by the undercover officer was found in the possession of Mr Peovski. In relation to counts 5 and 6, $28,900 of the $61,500 handed over by the undercover officer to Mihelic was found in Peovski’s possession.

23. The essence of the joint criminal enterprise is, to summarise it, in respect of each of three transactions as follows. Mr Mihelic had contact with the undercover officer. Mr Mihelic afterwards had contact with the accused, who then respectively had contact with Mihelic and Peovski. The Crown case, as I would understand it, is that Mr Sikos, the accused, in respect of each of the three transactions, was the intermediary between Mihelic and Peovski. There is evidence foreshadowed in the Crown’s address that Mihelic could at least be inferred to be aware of the identity of Peovski and his role.

24. The Crown case in each instance is that Peovski was the person providing the drugs for Mihelic to give to the undercover officer, with the accused in each instance carrying the drugs, as I said, from Peovski to Mihelic. Mihelic on each occasion meeting the undercover police officer by himself. On receiving the cash in each, passed over by the undercover officer in relation to each transaction, as I understand it Mihelic provided the cash to the accused, and the accused then provided that cash to Peovski.

25. There is one slight difference, if I might use that expression, arising out of the circumstances of the third transaction which appears clear to my mind from the terms of a conversation that occurred after the accused obtained the cash from Mihelic to pass on to Peovski. That is on that occasion Mr Mihelic would appear, at this stage acting as the judge finding facts not acting as a jury determining facts, to have indicated to the accused that he had kept some of the money that had been handed to him by the undercover officer. This may explain the significantly smaller proportion of the marked or identified bank notes found in the possession of Peovski from the transaction of 8 January 2015, compared to the proportion of the marked bank notes which were found in respect of the other two transactions.

26. I should point out in relation to the matter, in the context of some submissions made by the Crown, I have borne in mind, as I understand the facts from the Crown’s address proposed to be made to the jury on opening its case, that in respect of the first transaction the MDMA that was handed out had a purity of 19.5%, the cocaine had a purity of 76.5%. In respect of the second transaction on 30 December 2014 the purity of the MDMA was 20.5%, the purity of the cocaine was 90% - it should be pointed out a very high percentage - but consistent with certain representations made by Mihelic to the undercover officer at various times. In respect of the third transaction the purity of the MDMA that was provided was 20.5% and the purity of the cocaine supplied in the third transaction was 90%.

27. When Mr Peovski’s home was searched on 9 February, apart from the cash which connects, if I could use the expression, fairly directly Mr Peovski with the undertakings of Mr Mihelic, the drug MDMA, as it is shortly called, was found in a quantity of 558.6 grams and 28.46 grams of cocaine was found. There was also found, I hasten to say, various indicia of drug supply or drug trafficking, including scales, plastic bags, metal rulers and the like. The MDMA was 19.5%, which is entirely consistent with the purity of the MDMA supplied in the first transaction and very close to the purity of the MDMA supplied in the second and third transactions. The cocaine that was found in Mr Peovski’s possession was 84% pure, again similar in purity, slightly less than the second and third transactions, slightly more than the first transaction.

28. In relation to the Crown case it seeks to establish the guilt of the accused both by reference to the surveillance and the electronic communications that are by mobile telephone and the like, and particularly having regard, of course, to the conversations between Mihelic and the undercover officer, which in respect of each transaction would be evidence of the relevant joint criminal enterprise alleged in respect of each transaction involving each accused. The Crown case is that the accused knew that Mihelic was dealing with another person, obtaining cash from that person, and that at relevant times the accused gave to Mihelic, as I earlier pointed out, packages which contained, the Crown would say, the relevant prohibited drugs and then received from Mihelic packages that contained the cash.

29. My understanding of the case anticipated by the Crown is that with the exception of the third transaction and particularly that aspect of it concerning the alleged delivery by Mr Sikos of the cash back to the initial drug provider, Mr Peovski, that the drugs that were transported by Sikos from Peovski to Mihelic to the undercover officer, and the cash that was transported after being handed over by the undercover officer by Mihelic to Sikos and then back to Peovski, were in each instance to be seen by surveillance police as being carried in identical or very similar types of “plastic bags” and the like. In other words there is considerable similarity in the description of the various packages used to transport the drugs from Peovski to the undercover officer, and then the cash from the undercover officer ultimately to Peovski.

30. As I said, in the third transaction, whilst the accused is said after meeting with Mihelic to arrive at Mr Peovski’s home, there is no information in the detail of what I have been provided as to whether he had anything in his hands at that time or there was any particularly identifiable package.

31. Before I come back to the gravamen of the matter as I understand it from the Crown case, it is important that I perhaps identify what were the respective submissions put by the parties. First of all it was submitted, and this is not the subject of dispute by the Crown, that the Crown has not sought to provide notice of a claimed tendency on the part of the accused to act in a particular way or have a particular state of mind that might permit evidence in relation to “one transaction” to be admissible in proof of guilt of the accused in relation to other transactions and vice versa.

32. The learned counsel for the accused said that with the counts together there was a considerable danger that the jury would either consider evidence relevant to particular counts impermissibly or alternatively would be prejudiced in their judgment of the relevant evidence in relation to each of the transactions by evidence that would seek to establish or prove that the accused was involved in more than one drug transaction. Learned counsel for the accused pointed to the fact that the respective transactions were temporally, that is in terms of time, “disconnected”.

33. He also submitted on the basis of the facts of the Crown case that this is not a case of one joint criminal enterprise involving various actions in furtherance of the joint criminal enterprise that might give rise to different offences. There were in fact three separate groups of offences which each involved a separate “joint criminal enterprise”. I will come to another matter in a moment even though it was not conceded by his counsel, there was a context to be considered in relation to the various transactions that were undertaken.

34. It was submitted on behalf of the accused ultimately what we have here were three separate offences and there was no proper basis for permitting a joinder as sought by the Crown. Learned counsel for the accused picked up the very considerable volume on Uniform Evidence Law written by the learned author Stephen Odgers SC, and without citing a particular page referred me to a passage with which I am familiar and which Mr Odgers’ footnotes many cases to this effect dealing with the issue of joinder of counts or joinder of offences in an indictment in order to permit the matters to be considered by reference to a proper context or a common motive or a common state of mind that had bearing upon the proof of guilt of the accused.

35. He said in his submissions that the issue raised on behalf of the accused was his “knowledge” of the fact, as the Crown would submit and would appear to me to be clearly established, that at various times he was carrying packages that contained prohibited drugs and that further, after the transactions between the undercover officer and Mr Mihelic, he was carrying cash for at least part of the cash paid by the undercover officer in consideration of the prohibited drugs provided back to the man that the Crown said was the primary supplier.

36. He submitted that, in effect, there was really no common evidence between the three transactions. I am against him on that in one respect but I will come back to that. Citing various provisions of the Criminal Procedure Act he submitted that a joinder of the counts would give rise to an impermissible prejudice or embarrassment to the defence as it is expressed in s 21 Criminal Procedure Act 1986.

37. The learned Crown Prosecutor opposes the application of the accused. He cited various provisions of the Criminal Procedure Act to which I will come back to. He referred to the policy of the Criminal Procedure Act and the allowance under the Act of joinder of counts. He put a submission to me that if the accused had been tried for lesser quantities of the same prohibited drugs pursuant to s 25A Drug Misuse and Trafficking Act 1985, which permits prosecution in respect of three separate transactions committed within 30 consecutive days, no complaint could be made. I do not propose to dwell on that particular submission because as I made clear that situation is entirely different from the matter with which I am concerned. That particular section creates the one offence arising out of three separate criminal transactions and thus there would be no issue of either joinder or separation required to be considered by a Court.

38. He took me to the terms of s 21(1)(a) Criminal Procedure Act 1986 and submitted that the issue of prejudice, the embarrassment could be cured by appropriate direction. The Crown submitted that on the basis of the claim of joint criminal enterprise the Crown would claim that the offences were committed in the context of an “ongoing business arrangement” and that in the circumstances with appropriate direction to the jury no prejudice or embarrassment would arise.

39. It is to be pointed out before I turn to the law to be applied that the Crown is entirely correct to point out, and I undoubtedly accept because I have seen it in action over many years, that juries are not only expected to act upon the directions of law given to them by a trial judge but, in fact, will do so.

40. Without unnecessarily dwelling upon ‘war stories’, I tried a man called Phoung Ngo, after he had been convicted of murder of a New South Wales politician, in respect of an alleged extortion of a Vietnamese businessman. Everybody in the Court I am sure, including the jury without me having to say it, knew that Mr Ngo had recently been convicted of murder. Furthermore his co-accused in the extortion matter wished to raise his good character. Mr Ngo, of course, could not raise his good character because he was a convicted murderer. The elephant in the room remained firmly seated within the courtroom for the full duration of the trial. The co-accused ran his good character and got an appropriate direction in respect of which concerning Mr Ngo I could say nothing. Ultimately the jury returned with verdicts of ‘not guilty’ in relation to both men. I have learnt from that particular case, given the attention to detail for directions to ensure a fair trial, that clearly the jury had followed the directions that had been given to them.

1. If I could just turn to the legislation. S 21 Criminal Procedure Act 1986 (“the Act”) provides that if of the opinion than an indictment is defective but having regard to the merits of the case can be amended without injustice, the Court can make such order for the amendment of the indictment if it thinks necessary to meet the circumstances of the case. S 21(1)(a) provides that if the court is of the opinion:

(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment , or

(b) that for any other reason it is desirable to direct that an accused person be tried separately from any one or more offences charged in an indictment the Court may order a separate trial of any count or counts of the indictment.

42. Other related provisions adverted to, particularly by the learned Crown after some discussion with me, include s 23 of the Act which provides, “up to three counts may be inserted in the same indictment against the same person for distinct offences of the same kind permitted against the same person”. The section does not apply “if more than six months have elapsed between the first and last of the offences” which does not apply here.

43. Furthermore s 29(1) of the Act provides that a Court may hear and determine together proceedings related to two or more offences alleged to have been committed by the same accused person in any of the following circumstances the accused person and the prosecutor consent, the offences rise out of the same set of circumstances or the offences form or are part of a series of offences of the same or similar character.

44. Clearly that is so. There is no dispute that it is within the power of the Crown to settle an indictment in the form proposed but, of course, the provisions in ss 23 and 29 of the Act obviously need to be considered in the context of the power to, in effect, separate counts in the indictment that arises under s 21(2) of the Act.

45. In the context of the submissions that were made by the learned counsel which were most helpful I have considered one particular judgment which, in fact, is referred to in the Butterworths Practice in the commentary to s 21 at p 6323 of the volume that I possess. That decision is Mac v The Queen [2014] NSWCCA 24. This was an appeal by an accused against failure by a trial judge to separate counts in the following form, there were two counts, the first and second counts in the indictment alleged to be breaches of Commonwealth law under the Commonwealth Criminal Code 1995. Count 1 was concerned with “attempting to import a marketable quantity of heroin”. Count 2, “dealing with money that was the proceeds of crime”. Counts 3 and 4 of the counts in the indictment were “State” offences pursuant to s 25(2) Drug Misuse and Trafficking Act 1985 being supply of large commercial quantities of heroin and methylamphetamine respectively.

46. I do not need to go into the detail of the facts of the matter except to point out, firstly, that the first count of attempting to import heroin was related to the receipt in Australia, after a trip to Vietnam by the prisoner in October of 2010, of a package which arrived in Australia on 7 November 2010 from Vietnam which was said to contain heroin.

47. On 12 November 2010 police searched the premises of the appellant and found the sum of $554,250 in cash in a safe, which was the subject of the second count, and in the same safe found large quantities of heroin the subject of the third count and methylamphetamine the subject of the fourth count, together with a set of scales. Around the premises were various indicia of drug supply. In respect of this accused in this trial, there is nothing that I understand that arises from the arrest of the accused that was found at his home or not found at his home that is of relevance to the charges with which I am concerned.

48. In respect of the discussion of the relevant principles, Hidden J who gave the lead judgment to the Court, although Basten JA commented upon a matter relating to joint Federal and State jurisdiction, referred to three principal decisions, R v Quach [2002] NSWCCA 519, a decision of Spigelman CJ, the famous ‘common law’ decision of Harriman v R (1989) 167 CLR 590 and a famous ‘similar fact’ decision, again a ‘common law’ decision if I might call it that, in other words, a pre-Evidence Act decision, of Sutton v The Queen (1983-4) 152 CLR 528. From my own memory I remember several decisions of the 1980s particularly concerned with the admissibility of similar fact evidence that also examined the joinder of counts of similar offending on the one indictment and when or not it was appropriate to do so. Such as the decision of De Jesus from the 1980s, the citation of which I do not have readily available to me.

49. There is no need for me to dwell upon his citation of parts of these judgments beyond noting the observations that Hidden J makes at [27] in respect of the obiter in Sutton v R concerning the joinder of counts where there is cross-admissibility of evidence. I pause for a moment to point out that if there was cross-admissibility of evidence, particularly in a substantial way, such as a tendency case sought to be run by the Crown or a coincidence case sought to be run by the Crown, no issue would arise as to separating the counts in the indictment.

50. His Honour also cited extensively from the judgment of Spigelman CJ in Quach which I earlier cited, (particularly at [23]-[25]) cited in Hidden J’s judgment at [30]). At [26] of Quach, Spigelman CJ, in some depth, analysed the relevance of the decision in Harriman, and the facts of that case, as it supported the claim for the joinder of counts that militated against an application for the separation of counts in the decision of Quach. Hidden J said at [31] of Mac:

“Turning to the facts of Quach itself his Honour (the Chief Justice) concluded that the evidence of prior dealings between the appellant and the accomplice was relevant to show that their contact on the occasion in question was to adopt the phrase of Brennan J ‘for a guilty rather than innocent purpose’.”

51. That approach is pertinent to the present case. At [44] The Chief Justice in Quach referred with approval to a passage, also pertinent in the present case, in a South Australian decision which did involve cross-admissibility of evidence between counts in an indictment. The relevant passage in [44] refers to the South Australian decision of R v Ngo and Le [2002] SASC 373.

52. To cite part of the passage quoted in Mac from the judgment of Quach, Spigelman CJ pointed out:

“In that case also there were a number of intercepted telephone calls in which a rudimentary code was used. It was submitted that evidence of the conversation which was relevant to the earlier counts could have relevance to the later counts as propensity evidence”.

53. In the South Australian decision, the lead judgment of Besanko J noted:

“The jury was entitled to use the evidence of the telephone calls between April and August 1998 in assessing it in determining who was in possession of the heroin in the main bedroom and laundry of the house [at a particular address] on 17 August 1998 and in the various places at [another address]. Equally, the jury was entitled to use the evidence of the telephone calls as assisting it in determining who was in possession of the heroin at [one address] on 15 November 1997. Such a use of the evidence does not involve the jury reasoning on a propensity basis. The evidence, together with the evidence of the financial positions of the appellants was capable of establishing the fact that as at the time of the first recorded telephone call in April 1998 and for some time prior to their date there was a well-established and large scale business in operation. In other words, the evidence was not put forward to support a conclusion that the appellant was a person likely from his criminal conduct or character to have committed the offences”.(emphasis added).

54. Hidden J then turning his attention to the facts of Mac and concluding that the judge was not in error in separating the counts made these observations at [32]-[33].

“The submissions of the Crown Prosecutor in this Court that the evidence relating to the four counts was cross-admissible are persuasive. In relation to count 1, the attempted importation of heroin, the critical issue was whether the appellant was proved to have known that the package contained heroin and was reckless as to that matter. The appellant’s case was that he had no knowledge of its contents. The Crown had to rely upon circumstantial evidence to establish the contrary, plainly enough, evidence relating to the other three counts to the effect that he had large quantities of drugs in his possession for sale, together with a large sum of cash and various indicia of drug supply, was strongly probative on that question. It might be added that the quantities of heroin the subjects of count 1 and 3 were both found to be of south eastern origin with similar purity levels”.

55. I pause for a moment to point out that the substantial evidence in relation to proof of guilt of this accused in relation to counts 1 and 2, as opposed to counts 3 and 4, as opposed to counts 5 and 6, is not cross-admissible. That the respective transactions in terms of the proof of the guilt of the accused each stand on their own. Although there is a similar modus operandi at work, the evidence is not available in respect of one transaction to prove a ‘tendency’ on the part of the accused to do what is alleged against him in relation to another transaction or other transactions. This is a significant matter to point out in the context of both Ngo the South Australian case and Mac, there being as I said by quoting the judgments, clear evidence of “cross-admissibility” in respect of the respective matters giving rise to the counts in order to establish the guilt of the accused of a particular count. But cross-admissibility not dependent upon “tendency reasoning”.

56. In relation to the matter that I am concerned with at this particular time where proof of knowledge as the Crown’s case is dependent upon the unique circumstances in relation to each offence, it appears to me clear, notwithstanding any direction that I would give the jury, a clear risk of prejudice to the accused of the jury subconsciously being infected by satisfaction of the accused’s knowledge of the presence of drugs in his possession when determining that same issue in relation to other transactions where the evidence relevant to proof of knowledge in respect of a particular transaction can in no way assist in the proof of his knowledge in relation to other transactions on the Crown case. Unless, of course, the jury was invited to undertake some form of “tendency” reasoning.

57. To move on to [33] of Mac, his Honour pointed out, to basically confirm the issue of cross admissibility:

“Equally the evidence relating to counts 1, 3 and 4 pointing to the appellant’s involvement in the importation and supply of illicit drugs was relevant and probative in respect of count 2, the money laundering count. Particularly this was so given the appellant’s defence that it was the proceeds of gambling. Similarly the evidence relating to counts 1 and 2 was important considering the issue raised by counts 3 and 4, the supply of the heroin and methylamphetamine. These counts relied upon the deeming provision to be found in s 29 of the Drug Misuse and Trafficking Act and the appellant bore the burden of proving that he possessed them otherwise than for supply. His case, as I have said, was that he was minding them for another person (albeit with that person’s permission to use some of them).”

58. In other words, at that trial the issue of “knowledge” of the presence of drugs was not in the dispute. His Honour pointed out further at [34]:

“The appellant has no legitimate complaint if the joint trial of the counts had indeed left the jury ‘with a great deal of scepticism’ about his defence to each of them. A realistic assessment of each defence would not have been possible without the evidence relating to the other counts. Justice would not have been done by separate trials of the counts, with each jury left to evaluate the defence case and ignorance of the whole of the circumstances established by the evidence on the other counts.”

59. His Honour’s observations there of course do not apply in relation to this case. His Honour made some observations in considering, as I would understand it, a related admissibility point of whether evidence said to be common to each count was outweighed in its probative value by the prejudicial effect that that issue I do not need to consider.

60. Having made those observations and accepting the essential submission that the proof of guilt of the accused in relation to each of the transactions is based upon the evidence, in terms of time, particular to each of those transactions, both immediately before the passing of the drugs to the undercover officer and by that I mean including some days before and immediately after the relevant transaction, that does not mean that I have concluded that there is not a connection between the respective transactions.

61. First of all, in respect of the first transaction, there was the circumstance of the offender Mihelic who like Peovski has pleaded guilty to various offences relating to these matters, coming in contact with the undercover officer and making arrangements for the supply of the drugs. I am mindful of the fact that in respect of the first supply, there is reference to the earlier conversations leading to a connection between Mihelic and the undercover officer. After the first transaction was completed before the events giving rise to the second transaction, the undercover officer sent an email to Mihelic order:

“The same for next Tuesday”.

62. I am mindful of the fact that when the second transaction was being consummated, that is when the drugs were handed over and then the undercover officer handed over the $47,500, the undercover officer asked Mihelic about getting “3,000 pills”. Mihelic replied, “Done” and that the undercover officer asked for a “cheaper price” and that Mihelic indicated that he would “do it cheaper” and would find out “the price”.

63. I am mindful of the fact that on 1 January 2015, Mihelic and the undercover officer communicated by email message and that Mihelic had said that he was “all organised” for the cocaine and he was “trying to get the pills for $7 but he could not promise that price”.

64. It is important to point out in dealing with these various parts of the Crown case that either link transactions with one another, or introduce the circumstances in which transactions occurred, that the communications in question are not between this accused and the undercover police officer but are communications between the UCO and another person, admittedly part of the joint criminal enterprise. I make that observation just to make the point that the matter that I am addressing at the moment would have far greater salience in favour of joinder of the counts if in fact this accused was in the position of Mihelic, rather than being the position that I have identified before as a middleman between Mihelic and Peovski on the Crown case.

65. What I have striven to do at this late hour is to acknowledge, although it was not expressly identified, that there is to be fairly said evidence connecting the transactions in the ways I have identified, and perhaps in some other ways as well, that provides “a context” for the circumstances in which for example the second transaction followed the first transaction, the third transaction followed the second transaction.

66. However, by reference to the South Australian authority of Ngo, the circumstances of Quach and of course the circumstances of Mac, the evidence that I advert to and the evidence in the Crown’s opening does not by reference to the three transactions with which I am concerned establish, so far as it involves the accused, a circumstances of “an ongoing business” as was expressed to be the situation in the South Australian decision of Ngo particularly. Thus it came to pass that in my consideration of this matter, which has been earnest and I must say it has been a difficult matter to decide perhaps to be fairly said “closely run”, I had to then determine whether conceding or acknowledging the relevant “context” whether the counts of relating to different transactions ought be joined in order to provide the Crown with an opportunity to provide a relevant “context” for a particular transaction occurring. Because the Crown case to implicate the accused is, as I have said earlier, on analysis so self-confined in strict terms in proof of guilt in respect of each transaction, I have concluded that whilst I acknowledge the existence of a particular context, the context of the material of itself is not such as to conclude that the accused person:

“may not be prejudiced or embarrassed in his...defence by reason of being charged with more than one offence in the same indictment”.

67. The use of the expression “defence” does not necessarily in my view turn upon the claim of defence acknowledged or identified by his counsel.

68. It seems to me in the circumstances where there will be available to the jury an opportunity for proper independent consideration of each transaction, a real risk of “prejudice” in the conduct of the case on behalf of the accused notwithstanding any careful directions I gave the jury, particularly in the circumstance where there was insufficient cross admissibility of evidence available to permit the jury properly to consider the three transactions together to determine whether the accused was guilty of each of the offences.

69. It is in those circumstances that I have concluded that I should order a separation of counts 1 and 2 from counts 3 and 4 and counts 5 and 6. This unfortunately, or fortunately as the case may be, leads inevitably on the basis of the decision that there will be three trials. However, having said that, and this is a matter that will need to be discussed by the learned Crown and Mr Pickin, it appears to me that there must be introduced into the evidence in respect of each trial some evidence of the “context” nature without having to necessarily reveal the fact that part of the circumstances of the relevant contextual matter were in fact concerned with the supply of drugs on a particular occasion. In other words, the events concerning the connection between the undercover officer and Mihelic will in some way need to be introduced.

70. Further, there may need to be introduced in respect of the time between the events giving rise to counts 1 and 2 and to the events giving rise in relation to counts 3 and 4 some evidence of contact between the undercover officer and Mihelic. Likewise thus in relation to counts 5 and 6 when separately considered. Obviously the jury cannot be denied the context in which matters occurred.

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Decision last updated: 15 August 2017