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District Court 13 October 2008

R v Syed Basri, Saripah; Madubuko, Henry; Mohammed, Lokman and Okonkwo, Ifeanyi

[2008] NSWDC 386

Drugs
CRIMINAL LAW INDICTMENT CLAIMED AREAS OF COINCIDENCE IDENTIFIED SEPARATE TRIAL APPLICATIONS DANGEROF JU SEPARATE TRIAL GRANTED TO MO

Citation: R v Syed Basri, Saripah; Madubuko, Henry; Mohammed, Lokman and Okonkwo, Ifeanyi [2008] NSWDC 386
Court: District Court of New South Wales
Date: 13 October 2008
Judge(s): Nicholson SC DCJ

Background

Four accused faced drug importation and related charges arising from events at Sydney's Kingsford Smith Airport on 25 February 2008. One accused (referred to here as Ms Basri) was charged with importing a commercial quantity of heroin, concealed in a suitcase lining, after arriving from India via Singapore. A second accused (Mohammed) arrived approximately five and a half hours later on a separate flight from India via Kuala Lumpur, carrying a similarly constructed package of heroin in his luggage.

Two further accused (Madubuko and Okonkwo) were jointly charged with attempting to possess the commercial quantity of heroin imported by Ms Basri. Madubuko faced an additional charge of attempting to possess the marketable quantity of heroin attributed to Mohammed. The Crown alleged all four were operatives of the same drug syndicate and proposed a single joint trial.

Before the trial commenced, Mohammed applied by Notice of Motion for a separate trial. Madubuko applied (contingently, by oral application) to have the count relating to Mohammed's importation severed from the indictment against him. The Crown also sought to lead coincidence evidence against all accused under section 98 of the Evidence Act 1995 (Cth). All of these interlocutory matters were argued on the voir dire (a preliminary hearing before the judge, outside the jury's presence).

  • Whether the Crown's proposed coincidence evidence satisfied the requirements of section 98(2) of the Evidence Act 1995 (Cth), specifically whether the nominated "events" had sufficient features of similarity and were genuinely related events rather than mere circumstances.
  • Whether Mohammed was entitled to a separate trial, having regard to the risk of prejudice from evidence relevant only to other accused, particularly evidence arising from Ms Basri's controlled delivery.
  • Whether count 4 on Madubuko's indictment (the attempted possession charge relating to Mohammed's importation) should be severed and tried alongside Mohammed's separate trial.

Decision

Coincidence evidence rejected

The Crown sought to use similarities between the two importations, including the comparable concealment method, the brand of luggage, the India departure point, and an alleged meeting between Ms Basri and Mohammed in Kuala Lumpur, as coincidence evidence linking all accused to a single drug syndicate. The court rejected this application. Coincidence evidence under section 98(2) of the Evidence Act must connect related events to the same accused. The court drew a firm distinction between "related events" (which satisfy the provision) and "matters of circumstance" (which do not). The similarities nominated by the Crown were characterised as matters of circumstance common to the two importations, not discrete events capable of satisfying section 98(2).

Separate trial granted to Mohammed

The court applied the established principles governing separate trial applications, drawn from cases including R v Middis and R v Baartman. Three key considerations were identified: the risk of the jury being unable to separate the evidence as it relates to each accused; the risk that a weaker Crown case is made stronger by prejudicial material from a co-accused's case; and whether positive injustice would result from a joint trial. The court found a material risk that a jury would use Ms Basri's controlled delivery evidence, which significantly strengthened the case against her, to fill evidentiary gaps in the case against Mohammed, with whom there was no equivalent evidence. That risk of spillover prejudice was sufficient to warrant a separate trial for Mohammed.

Madubuko's severance application granted

Count 4 against Madubuko (relating to Mohammed's importation) was severed from the remaining indictment. The court reasoned that the Crown's case against Madubuko was materially stronger on the count relating to Ms Basri's importation (count 3) than on count 4. Requiring Madubuko to face count 4 in the same trial as the more powerful case on count 3 created a real risk of prejudice. As a matter of fairness, count 4 was to be tried together with Mohammed's separate proceedings.

Orders Made

  • Lokman Mohammed is to be tried separately on the charge upon which he was arraigned on 8 October 2008.
  • Count 4 in the indictment against Henry Madubuko is severed from that indictment.
  • Henry Madubuko is to be tried on count 4 at the same time and place as Lokman Mohammed is tried on count 1 of the indictment.

Key Takeaways

  • Section 98(2) of the Evidence Act 1995 (Cth) requires that coincidence evidence be founded on related events, not merely on circumstances that happen to be common across separate alleged offending. The District Court held that structural and logistical similarities between two separate importations did not constitute "related events" for the purposes of the provision.
  • A separate trial will generally be ordered where there is a real risk that evidence admissible only against one co-accused will improperly strengthen the jury's assessment of the Crown's case against another, particularly where the evidence is of a kind likely to carry significant weight with the jury.
  • Where a controlled delivery forms a central part of the prosecution case against one accused, evidence emerging from that controlled delivery carries a real risk of prejudicing a co-accused against whom no equivalent evidence exists.
  • Severance of a count from an indictment may be appropriate not only where the count itself is weak, but where trying it alongside a materially stronger count creates a risk that the stronger case will distort the jury's evaluation of the weaker one.
  • The court confirmed that the principles governing separate trial applications apply with equal force to applications for severance of individual counts within an indictment.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (Cth), section 98(2)

Cases
- R v Middis (unreported, NSWSC, 27 March 1991, 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