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Court of Criminal Appeal 19 December 2008

Samadi and Djait v Regina

[2008] NSWCCA 330

Also reported as (2008) 192 A Crim R 251
Sexual offencesDrugsTheft & property
CRIMINAL LAW CRIMES ACT, S 38 DRINK SPIKING CRIMINAL LAW ADMISSIBILITY OF COINCIDENCE EVIDENCE S 98 EVIDENCE ACT

Citation: Samadi and Djait v Regina [2008] NSWCCA 330
Court: NSW Court of Criminal Appeal
Date: 19 December 2008
Judge(s): Beazley JA; Hislop J; Price J

Background

The two appellants were jointly tried in the District Court before Tupman DCJ and convicted by a jury of 12 counts each of administering a stupefying drug (Clonazepam) to 12 separate complainants with intent to steal their property, contrary to s 38 of the Crimes Act 1900. All offences occurred within a narrow window in October 2004. The prosecution case was circumstantial, relying heavily on the similarity of the conduct across multiple incidents.

In the same trial, one appellant was convicted of one count of sexual assault, and the other was convicted of three counts of sexual assault, both contrary to s 61I of the Crimes Act 1900. In each case, the prosecution alleged that the relevant appellant exploited the drugged state of a complainant who was also a victim in one of the drink-spiking counts. The trial judge sentenced each appellant to an overall term of 12 years non-parole with an additional term of 3 years.

Both appellants appealed against their convictions and sought leave to appeal against sentence. One appellant also separately argued that the jury should have been discharged after a fitness hearing for the other appellant caused a gap of more than a week in the trial proper.

  • Whether the trial judge erred in admitting evidence relating to one count as part of the same transaction as other counts, under the principle in O'Leary v R
  • Whether coincidence evidence across the 12 drink-spiking counts was properly admitted under s 98 of the Evidence Act 1995, and whether its probative value was substantially outweighed by its prejudicial effect under s 101
  • Whether the trial judge erred in failing to order separate trials for the s 38 drink-spiking counts (arising from separate incidents) and for the individual sexual assault counts
  • Whether the jury should have been discharged following the fitness hearing gap in the trial
  • Whether the sentences contained appealable error, including breach of the statutory ratio between non-parole and parole periods, and failure to maintain parity between co-offenders

Decision

Coincidence evidence and the O'Leary principle: The Court found no error in the trial judge's application of O'Leary v R. The evidence surrounding one incident (count 4) was so close in time, proximity, and material detail to the adjacent counts that admitting it was necessary to render those counts intelligible. Without it, the relevant incidents would have been, in the Court's words, an "unreal and not very intelligible event." The trial judge had correctly identified 13 similarities across the counts in time, place, and methodology, and those similarities were sufficient to satisfy the requirements of s 98.

Limits of the coincidence evidence ruling: The Court confirmed that s 98 does not require an exact parallel of circumstances. Coincidence evidence assists in proving a circumstantial case, and the relevant similarities were capable of being rationally probative of guilt even though not all complainants had property stolen and some counts involved an additional intent to sexually assault. Critically, however, the Court found that the probative value of the coincidence evidence did not substantially outweigh its prejudicial effect under s 101(2). The trial judge had recognised the potential prejudice and gave the jury appropriate directions to address it.

Joint trial grounds: The Court dismissed the arguments that the trial judge should have ordered separate trials for the drink-spiking counts arising from different incidents, and for the individual sexual assault counts. No miscarriage of justice arose from the joint trial of the appellants on the s 38 counts or from trying each sexual assault count in the same proceeding. The application to discharge the jury following the fitness hearing gap also failed.

Sentence appeals: Both sentence appeals were allowed. The Court found appealable error in the statutory ratio between non-parole and parole periods, and also identified a parity issue between the sentences imposed on the two co-offenders, who had been convicted of sexual assaults on separate complainants. The Court quashed the original sentences and re-sentenced both appellants, resulting in overall effective sentences of 14 years and 6 months (non-parole period of 10 years and 7 months) for one appellant and 15 years (non-parole period of 11 years) for the other.

Orders Made

Samadi:
- Conviction appeal dismissed
- Leave to appeal against sentence granted; sentence appeal allowed
- Sentences quashed and appellant re-sentenced:
- Fixed terms of 5 years imposed on multiple groups of counts, commencing in cascade from October 2005 through October 2009
- On the sexual assault count: non-parole period of 4 years 7 months commencing October 2010, with balance of term of 3 years 11 months
- Overall effective sentence: 14 years 6 months, comprising a non-parole period of 10 years 7 months; earliest release date 19 May 2015

Djait:
- Conviction appeal dismissed
- Leave to appeal against sentence granted; sentence appeal allowed
- Sentences quashed and appellant re-sentenced:
- Fixed terms of 5 years imposed on multiple groups of counts, commencing in cascade from October 2005 through October 2009
- On the sexual assault counts: non-parole period of 5 years commencing October 2010, with balance of term of 4 years
- Overall effective sentence: 15 years, comprising a non-parole period of 11 years; earliest release date 18 October 2015

Key Takeaways

  • The O'Leary v R principle permits evidence from a closely related incident to be admitted as part of the same transaction where excluding it would render the primary event unintelligible, even where the related incident is separately charged.

  • Under s 98 of the Evidence Act 1995, coincidence evidence does not require an exact parallel of circumstances across counts; the provision is designed to assist the proof of circumstantial cases, and partial divergence in the facts does not defeat admissibility.

  • A determination of probative value under s 98 is evaluative and predictive, and courts have recognised that reasonable minds may differ on the outcome; the standard is not one of certainty.

  • Sufficient similarity across multiple counts, combined with appropriate jury directions addressing the risk of prejudice, can justify a joint trial without producing a miscarriage of justice, even where the counts span several separate incidents and separate complainants.

  • Sentencing error arising from a breach of the statutory non-parole to parole ratio, and failure to maintain appropriate parity between co-offenders convicted of relevantly similar sexual assault offences, each constitute grounds for appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 38, 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4, Div 1A
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), ss 98, 101
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 10(2)

Cases:
- O'Leary v R [1946] HCA 44; (1946) 73 CLR 566
- Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606
- Crofts v R [1996] HCA 22; (1996) 186 CLR 427
- De Jesus v R [1986] HCA 65; 61 ALJR 1
- Driscoll v R [1977] HCA 43; (1977) 137 CLR 517
- R v Adam [1999] NSWCCA 189; (1999) 47 NSWLR 267
- R v Zhang [2005] NSWCCA 437; 158 A Crim R 504
- R v Fletcher [2005] NSWCCA 338; 156 A C