R v Yavuz
[2020] ACTSC 117
•3 March 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Yavuz |
Citation: | [2020] ACTSC 117 |
Hearing Date(s): | 2 March 2020 |
DecisionDate: | 3 March 2020 |
ReasonsDate: | 14 May 2020 |
Before: | Loukas-Karlsson J |
Decision: | The application to sever the indictment is refused. |
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 other accused |
Legislation Cited: | Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 43 Court Procedures Rules 2006 (ACT) r 4751 Crimes Act 1900 (ACT) s 264 |
Cases Cited: | Batistatos v Road and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90 Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11 Rogers v R (1994) 181 CLR 251 R v AI, AD and JR [2013] ACTCA 16 R v Assim [1966] 2 QB 249; 2 All ER 881 R v Dellapatrona and Duffield (1993) 31 NSWLR 123 R v Demirok [1976] VR 244 R v Fernando [1999] NSWCCA 66 R v Gibb and McKenzie (1982) 7 A Crim R 385 R v Hamzy (1994) 74 A Crim R 341 R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 R v Jabal; R v Jabal; R v Poulakis [2019] ACTSC 319 Ross v The Queen [2012] NSWCCA 207 The Queen v CHS [2006] VSCA 19; 159 A Crim R 560 Williams v Spautz (1992) 174 CLR 509 |
Parties: | The Queen (Crown) Emin Yavuz (Accused) |
Representation: | Counsel D Renton (Crown) G Wendler (Accused) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Criminal Law Specialists (Accused) | |
File Number(s): | SCC 83 of 2019 |
Loukas-Karlsson J
Introduction
On 3 March 2020 I made an order refusing the application to sever the indictment.
I indicated at that time that reasons would be published at a later date. The reasons follow.
This was an interlocutory application pursued by Emin Yavuz in respect of an indictment dated 6 June 2019. The applicant sought to be severed from the indictment with a further order that he be tried separately from the co-accused identified on that indictment, Bilal Omari, Adam Jabal, Youssef Jabal, and Peter Poulakis. The charges on that indictment were, in general terms, as follows:
(a) 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.
(b) 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.
(c) Count 3: a charge that between 19 September 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).
(d) Count 4: a charge that between 14 November 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).
(e) Count 5: a charge that on 5 December 2017 Peter Poulakis trafficked in a controlled drug other than cannabis, namely dibutylone.
(f) Count 6: a charge that on 5 December 2017 Peter Poulakis possessed a firearm that he was not authorised by licence, permit, or otherwise to possess.
(g) Count 7: a charge that on 8 September 2016 Bilal Omari trafficked in a trafficable quantity of cannabis.
(h) Count 8: a charge that on 5 December 2017 Bilal Omari trafficked in a controlled drug other than cannabis, namely cocaine.
(i) Count 9: a charge that on 5 December 2017 Bilal Omari attempted to pervert the course of justice.
(j) Count 10: a charge that on about 6 December 2017 Bilal Omari possessed prohibited weapons that he was not authorised by permit or otherwise to possess.
(k) 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.
(l) Count 12: a charge that on 5 December 2017 Youssef Jabal attempted to pervert the course of justice.
(m) 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.
(n) Count 14: a charge that on 5 December 2017 Adam Jabal attempted to pervert the course of justice.
By an application dated 2 March 2020 the accused Emin Yavuz sought orders that the indictment be severed and a further order that he be tried separately from the co-accused on Counts 1 and 2 of the indictment.
The accused Youssef Jabal, Adam Jabal, and Peter Poulakis had made separate applications for severance before Burns J on 21 August 2019. Those applications were refused on 19 November 2019: R v Jabal; R v Jabal; R v Poulakis [2019] ACTSC 319.
Alleged Facts
The Prosecution Case Statement alleges that the accused Yavuz, Youssef Jabal, Poulakis, and Omari in combination and on two separate occasions imported the border controlled drug MDMA. Count 1 relates to the first consignment which arrived in Sydney from Germany on 3 November 2017. Count 2 relates to the second consignment which arrived in Sydney from the United Kingdom on 30 November 2017. The accused Yavuz was at all relevant times in custody at the Alexander Maconochie Centre serving a sentence for an unrelated matter.
Counts 3 and 4 are brought against the accused Poulakis and relate to money laundering offences alleged to be associated with the importation offences in Counts 1 and 2. The allegations in Counts 5 and 6 emerge from the execution of a search warrant at the residence of Peter Poulakis on 5 December 2017 where police allegedly located 1.19 kg of dibutylone and a black Crosman CO2-powered airgun in the garage of the premises.
Police executed a search warrant on 5 December 2017 at the Australian National University (ANU), which was the workplace of the accused Omari. Police located a mobile telephone which was linked to the drug importations alleged in Counts 1 and 2, however its service was subscribed in the name of GI. The accused Omari told police that he had obtained the mobile telephone from the accused Poulakis. It is alleged that while that search warrant was being conducted the accused Omari contacted a number of people by telephone, speaking in Arabic, one of those people being the accused Youssef Jabal, who subsequently arranged for the accused Adam Jabal to remove drugs which were located in the vehicle. Police then located that vehicle and allegedly observed the accused Adam Jabal in the vicinity. Over 32 g of cocaine and other items alleged to be related to drug trafficking were found 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 another location within the ANU which was said to be an alternative work location for the accused Omari. Upon conducting that search the police allegedly found three extendable batons located in a cabinet behind the accused Omari’s workstation. This is the basis of Count 10 on the indictment.
The Prosecution Case Statement filed with the Court contains 137 paragraphs. The first 37 of those relate directly to the accused Yavuz in combination with the alleged co-offenders. The prosecution’s case on the issue of the accused Yavuz’s participation relies predominantly upon a large body of telephone communications between himself and the accused Omari and Poulakis which were recorded on the gaol telephone system.
Legislation
The application is made pursuant to s 264(2) of the Crimes Act 1900 (ACT) which provides as follows:
264 Orders for amendment of indictment, separate trial and postponement of trial
...
(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.
…
In addition, r 4751 of the Court Procedures Rules 2006 (ACT) relevantly provides:
4751 Supreme Court criminal proceedings—application for separate trials
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.
Note Pt 6.2 (Applications in proceedings) applies to the application.
Submissions on behalf of the accused Yavuz
Counsel for the accused Yavuz submitted that the form of the indictment is of fundamental importance to the validity of the trial: R v Hamzy (1994) 74 A Crim R 341. It was submitted that of the 14 counts, only the first two concern the accused Yavuz, and that the evidence in respect of the remaining counts is not admissible against him. It was submitted further that the accused Yavuz would “suffer impermissible prejudice by being swamped with evidence” which was neither relevant nor admissible against him. Counsel noted that only the first 37 of the 137 paragraphs contained within the Police Case Statement relate to the accused’s alleged involvement in the offences contained within Counts 1 and 2 on the indictment. (T 8.15-20). It was submitted that because of the large body of inadmissible material against the accused Yavuz in combination with his “deep social connection” and friendship with the other accused there is a real danger that the jury will be influenced by that material when considering the issue of the existence of an agreement and his participation in that alleged agreement (T 8.30-45)
Counsel sought to distinguish the evidence being brought against the accused Yavuz from that of his alleged co-offenders on the basis of the submission that the evidence is weaker and essentially relies on a body of “cryptic” or coded telephone conversations between the accused Yavuz and the accused Omari and Poulakis. It was submitted that the evidence which will be brought against the co-accused will have a “smear by association” effect on the accused Yavuz. Counsel submitted that “…he will be effectively smeared by association in relation to the - concerning the fact that the other co-accused are charged with disparate and serious offences which may have a subtle influence on proof of the two counts against the accused” (T 4.38-40). It was submitted that the prosecution case against the applicant “wholly depends” (T 3.5) upon the applicant’s association with the co-accused identified in the first two counts, in conjunction with evidence with respect to their relationship and a significant number of telephone intercepts to which the applicant was a party. The inferences which could be drawn from these intercepts with respect to the accused’s participation, and knowledge that he was participating in the importations were described by counsel as being critical to the success of the prosecution’s case. The applicant’s participation in and knowledge of the importations were described by counsel as being “absolutely critical” to the prosecution’s case (T 4.20-21).
It was submitted further that the evidence concerning drug supply by some of the co-accused, and evidence relating to the perverting the course of justice charges would smear the accused by association, distract the jury, and potentially impermissibly influence the question of the accused’s participation in the joint criminal enterprise alleged in Counts 1 and 2 (T 5.10-25). Counsel submitted that “the issue of participation and his knowledge that he was participating in the two importations are absolutely critical so far as the case against the accused Mr Yavuz is concerned” (T 4.20-23).
In counsel’s submission, the indictment as a whole was “over-rigged” in the sense that a number of the offences which are alleged within it are “highly significantly disparate charges” (T 3.20-21). It was submitted that this adds unnecessary complexity and distraction to the jury, and that there was a real danger that the trial would “become a form of sensory overload for the jury” (T 5.4-5). It was submitted that “in this sense it may be argued that the indictment in its current form is an abuse of process and any further proceedings upon it stayed” and that the joinder of the disparate charges upon the indictment will create serious prejudice to the accused Yavuz and to the other accused, noting that the High Court has consistently held that there are no closed categories of abuse of process: Williams v Spautz (1992) 174 CLR 509; Rogers v R (1994) 181 CLR 251; Batistatos v Road and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256.
Counsel noted that there had been earlier unsuccessful applications by the co-accused Adam Jabal, Youssef Jabal, and Omari to have their indictments severed and separate trials ordered, but that this did not mandate that the accused Yavuz’s application should be dismissed. It was submitted that this application is significantly different from that of his co-accused, as the accused Yavuz is only charged with two counts on the indictment and yet is “held hostage” to disparate counts alleging disparate criminality by the co-accused (T 5.35-40)
Counsel accepted that the onus was on the accused to show a positive injustice, submitting that this positive injustice could be seen in a combination of factors including the fact that he is currently in custody compounded by the “vast body of evidence” which is inadmissible against the accused. It was submitted that this evidence would influence the issue of whether the accused is involved in a joint enterprise or not. Counsel sought to distinguish the circumstances of this matter against one where there is an allegation of joint criminal enterprise and some evidence is stronger against one accused than another, or there is a record of interview which implicates one accused but not another, and that not being the basis for a separate trial (T 9.15-23).
Submissions on behalf of the Crown
Counsel for the prosecution relied upon the reasoning of Burns J in R v Jabal; R v Jabal; R v Poulakis [2019] ACTSC 319 as to whether the matters were properly joined (T 6.4-6). The prosecution accepted that the discretion of the Court is not bound by that decision (T 6.34-42). It was submitted that the evidence relevant to proving whether each participant to the agreement to import the MDMA was in fact a participant would turn on the evidence that relies on the acts and declarations of that particular accused. It was submitted with respect to the accused Yavuz, that the primary evidence in relation to his alleged participation would be the recorded telephone conversations. It was submitted that these recordings would be relevant to both his participation, and the fact in issue, that being the nature, scope, and existence of the agreement itself.
It was submitted that “[t]here is no question that the jury cannot use the evidence in relation to those offences as evidence of the accused Yavuz's participation in the agreement but given that he is charged with a joint commission offence, it is entirely appropriate for the jury to have regard to that evidence to determine the existence of the fact in issue in his trial being the existence of the agreement and its nature and scope.” (T 6.22-27). It was submitted that “it would be perverse” for the evidence that is to be admissible in the trials of the other joint enterprise charged accused with respect to whether there is an agreement and what it relates to be available to a jury in that trial, but be excluded from consideration in relation to the accused Yavuz (T 6.23-32).
Counsel for the prosecution submitted that there is a distinction between direct or circumstantial evidence that goes to the question of whether there is an agreement (and if so, its nature, characteristics, and scope) and the question of whether there is participation in that alleged agreement (T 7.4-6). It was submitted that there would be no question that the jury would be directed that the actions of the other accused do not make the accused Yavuz guilty because of what they did (T 7.6-9). Counsel for the prosecution distinguished the joint commission charges from a type of charge such as conspiracy, where an overt act done by one conspirator is enough to determine the guilt of the others (T 7.9-10). It was submitted that the jury’s focus, having considered the existence of an agreement is to consider the participation of those who they consider to be parties to that agreement (T 7.10-15).
Consideration
The principles to be applied are usefully and comprehensively set out by Nettle AJA (as his Honour then was) in R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 at [12]:
1) First, there are strong reasons of policy and principle why persons charged with committing an offence jointly or charged as participants in different degrees in relation to the same offence should be tried together (Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 88-9). The concerns which support a joint trial in such circumstances include the trauma and inconvenience to witnesses which are involved in subjecting them to more than one trial; the increased time and expense involved in separate trials; and the highly desirable objective of avoiding inconsistent verdicts as between trials (R v Jones and Waghorn (1991) 55 A Crim R 159, 185).
2) Secondly, the accused bears the burden of establishing that there is a need for separate trials. Separate trials should not be ordered unless it is demonstrated that there is a real risk of positive injustice as a consequence of a joint trial (R v Bikic [2000] NSWSC 223; (2000) 112 A Crim R 163, 167 [22]-[23]).
3) Thirdly, while most joint trials may be productive of some degree of prejudice, prejudice of that sort will not be taken to amount to positive injustice unless it is of a kind which is not really amenable to nullification by judicial directions to the jury (R v Ditroia and Tucci [1981] VR 247, R v Jones and Waghorn (1991) 55 A Crim R 159, 185).
4) Fourthly, one situation in which there may be grounds for separate trials is where the evidence admissible against one accused is significantly different from the evidence admissible against the other (R v Darby [1982] HCA 32; (1982) 148 CLR 668, 678). Another, is where there is a likelihood that some evidence which is led against one accused will be prejudicial to the other, albeit inadmissible against him or her. A separate trial may be also required in some cases where the evidence against one accused may in effect swamp the jury’s consideration of the case against the other accused. The same may be true where the circumstances are such as to create a serious risk of an irrational finding of guilt by association (R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428, 431).
5) In R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported, 4); see also R v Baartman (Court of Criminal Appeal, 6 October 1994 unreported); R v Piller (1995) 86 A Crim R 249; R v Georgiou [1999] NSWCCA 125, [5]), Hunt CJ at CL identified three categories of case in which an order for separate trials may be warranted as follows:
a) Where the evidence against an applicant is significantly weaker than and different to the evidence admissible against other accused.
b) Where the evidence against a co-accused contains material which is highly prejudicial to the applicant although not admissible against him or her.
c) Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably (in the sense of significantly albeit incomeasurably) stronger by reason of the prejudicial material.
6) It is recognised, however, that such guidelines as have been proffered cannot be exhaustive and that each case will depend upon its own facts. Each case involves a discretionary balancing exercise in which the concerns which support a joint trial must be weighed against the prejudices to the applicant (R v Alexander [2002] VSCA 183; (2002) 6 VR 53, 67 [31]).
The starting point is that where offences are related, the interests of justice are best served by a joint trial. In R v Assim [1966] 2 QB 249; 2 All ER 881 (quoted with approval in R v Fernando [1999] NSWCCA 66 at [199]), it was stated:
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.
R v Demirok [1976] VR 244 (Demirok) at 254 underlines that the public interest must be considered. The public interest includes court time, public expense, questions of inconsistent verdicts, dealing with cases expeditiously and the convenience of witnesses. The decision in Demirok was quoted with approval by the Court of Appeal in R v AI, AD and JR [2013] ACTCA 16 at [22]. See also: R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90.
This case involves a discretionary balancing exercise in which the considerations which support a joint trial must be weighed against prejudice to the applicant.
The applicant for severance of the indictment bears the burden of establishing that there is a need for a separate trial: The Queen v CHS [2006] VSCA 19; 159 A Crim R 560 at [73]. That burden has not been met in this case for the following reasons:
(a) The interests of justice clearly favour joinder in accordance with the principles elucidated in R v Assim [1966] 2 QB 249; 2 All ER 881; R v Fernando [1999] NSWCCA 66; Demirok; R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90; and Ross v The Queen [2012] NSWCCA 207;
(b) The positive injustice relied upon concerns a number of matters including the impermissible prejudice of being swamped by irrelevant and inadmissible material and “smear by association” (T 4.39-40; 8.35-36; 10.17-20) in the context of “deep social connection” (T 8.22-23) Counsel submitted there was a weaker case against the appellant in the context of an “over-rigged” indictment that would result in “sensory overload” for the jury (T 5.4-6). I am not persuaded that this amounts to “positive injustice” in accordance with the authorities. If the question may arise of prejudice it can be dealt with by way of an appropriate legal direction in accordance with R v Dellapatronaand Duffield (1993) 31 NSWLR 123; R v Gibb and McKenzie (1982) 7 A Crim R 385 and R v AI, AD and JR [2013] ACTCA 16. In particular I note Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11 at [125]:
Modern life is confronting. Juries are robust. There is no good reason to think that jurors would be so scandalised by the allegations … that they would be incapable of dispassionately determining the charges...
For these reasons the order was made refusing the application to sever the indictment.
Order
The application to sever the indictment is refused.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: |
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