R v Syed Basri, Saripah - [2008] NSWDC 386

CITATION: R v Syed Basri, Saripah; Madubuko, Henry; Mohammed, Lokman and Okonkwo, Ifeanyi [2008] NSWDC 386

JUDGMENT DATE:
13 October 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: 1. Determination of the Notice of Motion:
Lokman Mohammed be tried separately.
2. Severance Application by Madubuko granted in part
Application of Crown to lead coincidence evidence rejected.

CATCHWORDS: Criminal law - indictment - application for separate trials by two accused - application to lead coincidence evidence - B and Mo allegedly responsible for separate importations of heroin 5 hours apart - alleged operatives of same drug syndicate - claimed areas of coincidence identified - areas of coincidence confined to B and Mo with view to linking them to same drug syndicate - coincidence evidence traditionally links "related events" to same accused - distinction between 'related events" and "matters of circumstance" so called "events" nominated by prosecution fail to comply with s.98(2) Evidence Act 1995 - separate trial applications - dangerof ju - ry comparing cases of alleged importers in respect of explanations given by each for importing contraband - controlled delivery engaged ikn by B enhances prosecution case against her - danger of prejudice where there is no evidence of controlled delivery - separate trial granted to Mo - allegation of Mo to link up with Ma also severed.

LEGISLATION CITED: Evidence Act 1995 (Cwlth)

CASES CITED: R v Middis unreported NSWSC 27 March 1991 per Hunt CJ at CL.
R v Baartman (unreported) NSWCCA 6 October 1994.
R v Assim [1966] 2 QB 249
Annankin v R (1988) 17 NSWLR 202
R v Maxwell John White [1999] NSWCCA 336
Perry v The Queen 1982 CLR 580
Sutton v The Queen (1984) 152 CLR 528
R v Janeceski (2005) 64 NSWLR 10

PARTIES: Regina
Saripah Zamrrut Binti Syed Basri
Henry Ugo Madubuko
Lokman Mohammed
Ifeanyi Fidel Oknokwo

FILE NUMBER(S): 2008/11/0491; 2008/11/0498; 2008/11/0510; 2008/11/0556

COUNSEL: Crown: D Jordan
Defence for Syed Basri: S Russell
Defence for Madubuko: B Glennon
Defence for Mohammed: F Coyne
Defence for Okonkwo: C Watson

JUDGMENT

1. Syed Basri (Ms Basri), and Mohammed are each charged with importing a border control drug into Australia. In the case of Ms Basri the quantity alleged is a commercial quantity. In the case of Mohammed the quantity alleged is less than a commercial quantity. Madubuku (as his name appears on the indictment) and Okonwko are jointly charged with attempting to possess a commercial quantity of a border control drug, which had been unlawfully imported into Australia. This charge on the Crown case relates to their attempted receipt of the drug imported by M/s Basri. Madubuko is also charged with attempting to possess a marketable quantity of a border control drug, which had been unlawfully imported into Australia. This charge (on the crown case) relates to the importation alleged against Mohammed. All offences are said to have occurred on 25th February 2008 at Sydney.

2. The Crown proposes that all accused be tried together. The trial was scheduled to commence on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWDC 386
Decision Date: 13 October 2008

CaseChat Overview and Summary

In the case of R v Syed Basri, Saripah, the respondents, Syed Basri and Saripah, faced charges related to drug importation. The dispute involved two accused individuals, Basri and Saripah, who were alleged to be part of a drug syndicate and to have imported heroin on separate occasions. The court was tasked with deciding whether the accused should be tried separately and whether coincidence evidence could be admitted to link the two separate importations. The legal issues revolved around the interpretation of the Evidence Act 1995 and the potential prejudice that could arise from a joint trial.

The court examined the application for separate trials and the admissibility of coincidence evidence under section 98(2) of the Evidence Act 1995. It was argued that the two importations were related events that could be linked to the same syndicate. However, the court found that the nominated events did not meet the criteria for coincidence evidence as they were not strictly "related events" but rather matters of circumstance. Additionally, the court considered the potential prejudice that could arise from a joint trial, particularly in light of the controlled delivery that was engaged in by one of the accused. The court concluded that separate trials were warranted to avoid any risk of prejudice.

The court granted the application for separate trials for both Basri and Saripah. It also rejected the application to lead coincidence evidence, finding that the nominated events did not comply with the statutory requirements. The court ordered that Lokman Mohammed, another accused, be tried separately from the others. Furthermore, the application by Madubuko to sever the allegation of linking up with Ma was granted in part. The final orders included the separate trials for the accused and the rejection of the coincidence evidence application.

Orders

Orders of the court

1. Determination of the Notice of Motion:

Lokman Mohammed be tried separately.

2. Severance Application by Madubuko granted in part

Application of Crown to lead coincidence evidence rejected.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Syed Basri, Saripah; Madubuko, Henry; Mohammed, Lokman and Okonkwo, Ifeanyi [2008] NSWDC 386
JUDGMENT DATE:	13 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	1. Determination of the Notice of Motion: Lokman Mohammed be tried separately. 2. Severance Application by Madubuko granted in part Application of Crown to lead coincidence evidence rejected.
CATCHWORDS:	Criminal law - indictment - application for separate trials by two accused - application to lead coincidence evidence - B and Mo allegedly responsible for separate importations of heroin 5 hours apart - alleged operatives of same drug syndicate - claimed areas of coincidence identified - areas of coincidence confined to B and Mo with view to linking them to same drug syndicate - coincidence evidence traditionally links "related events" to same accused - distinction between 'related events" and "matters of circumstance" so called "events" nominated by prosecution fail to comply with s.98(2) Evidence Act 1995 - separate trial applications - dangerof ju - ry comparing cases of alleged importers in respect of explanations given by each for importing contraband - controlled delivery engaged ikn by B enhances prosecution case against her - danger of prejudice where there is no evidence of controlled delivery - separate trial granted to Mo - allegation of Mo to link up with Ma also severed.
LEGISLATION CITED:	Evidence Act 1995 (Cwlth)
CASES CITED:	R v Middis unreported NSWSC 27 March 1991 per Hunt CJ at CL. R v Baartman (unreported) NSWCCA 6 October 1994. R v Assim [1966] 2 QB 249 Annankin v R (1988) 17 NSWLR 202 R v Maxwell John White [1999] NSWCCA 336 Perry v The Queen 1982 CLR 580 Sutton v The Queen (1984) 152 CLR 528 R v Janeceski (2005) 64 NSWLR 10
PARTIES:	Regina Saripah Zamrrut Binti Syed Basri Henry Ugo Madubuko Lokman Mohammed Ifeanyi Fidel Oknokwo
FILE NUMBER(S):	2008/11/0491; 2008/11/0498; 2008/11/0510; 2008/11/0556
COUNSEL:	Crown: D Jordan Defence for Syed Basri: S Russell Defence for Madubuko: B Glennon Defence for Mohammed: F Coyne Defence for Okonkwo: C Watson