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10
Court of Criminal Appeal 8 June 2011

MADUBUKO, Henry Ugo v R

[2011] NSWCCA 135

Also reported as (2011) 210 A Crim R 249
Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER SEPARATE TRIALS OF CO ACCUSED SHOULD HAVE BEEN ORDERED APPLICABLE PRINCIPLES

Citation: MADUBUKO, Henry Ugo v R [2011] NSWCCA 135
Court: Court of Criminal Appeal, New South Wales
Date: 8 June 2011
Judge(s): Hodgson JA (lead judgment); Hoeben J; Grove AJ

Background

The appellant was charged with attempting to possess a commercial quantity of heroin that had been unlawfully imported into Australia. He was tried jointly with two co-accused: a woman who had carried the heroin concealed in her suitcase from India to Sydney, and a third co-accused who was arrested alongside the appellant.

The case arose from a controlled delivery operation at a Bankstown hotel on 25 February 2008. AFP officers accompanied the female co-accused to the hotel with the suitcase after substituting the heroin for an inert substance. Surveillance evidence showed the appellant and the third co-accused meeting her in the vicinity shortly afterwards. The three were observed together before the appellant and the third co-accused drove away in a car containing the suitcase. The appellant was arrested and found to be holding USD 1,000 in cash.

A complication arose during the joint trial when the third co-accused's counsel cross-examined an AFP officer on the female co-accused's record of interview (ROI). The Crown then successfully applied to have the ROI admitted against that third co-accused. The ROI had already been ruled inadmissible against the appellant. The trial judge refused the appellant's application for a separate trial, and the appellant appealed that refusal.

  • Whether the trial judge erred in refusing to order a separate trial for the appellant once the co-accused's ROI, inadmissible against the appellant, had been admitted against the third co-accused in the joint proceedings.
  • Whether the prejudice from the jury's exposure to the ROI created a significant risk that evidence inadmissible against the appellant could have converted a potential acquittal into a conviction.
  • Whether directions given to the jury adequately addressed any prejudice arising from the admission of the ROI.

Decision

The Court of Criminal Appeal, with Hodgson JA delivering the leading judgment, dismissed the appeal. The governing principle, drawn from R v Middis and affirmed in subsequent authorities, is that a separate trial should be ordered where there is a significant risk that inadmissible evidence could turn a potential acquittal into a conviction. The court confirmed that this test requires a realistic assessment of both the prejudicial content of the inadmissible material and the strength of the admissible evidence against the accused in question.

The ROI contained a reference by the female co-accused to two "black guys" she was to meet, which the appellant argued implicated him in a way the jury might carry over despite directions to the contrary. The court accepted that this was a matter deserving scrutiny, but concluded that the reference added little, if anything, of significance given the rest of the evidence.

The admissible evidence against the appellant was characterised as overwhelming. Surveillance observations placed him near the hotel during the controlled delivery, recorded his conversation with the female co-accused, and established his presence in the car when the suitcase was recovered. The discovery of USD 1,000 in his possession, matching the amount the female co-accused had been told to hand to her contact, strongly supported the inference of a deliberate transaction.

The trial judge's directions to the jury were assessed as appropriate. The summing-up repeatedly reminded jurors that the ROI was not evidence against the appellant and instructed them to assess each accused's case separately on the basis of admissible evidence only. The court found no basis to conclude those directions were inadequate, and it was therefore unnecessary to consider the proviso under s 6(1) of the Criminal Appeal Act 1912.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The applicable test for ordering a separate trial is whether there is a significant risk that inadmissible evidence could turn a potential acquittal of one accused into a conviction, not merely that some prejudice exists from a joint trial.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where the admissible evidence against an accused is overwhelming, a reference to that accused in inadmissible material will not ordinarily satisfy the threshold for severance.
  • Appropriate jury directions that clearly identify inadmissible material and instruct separate consideration of each accused's case can adequately address residual prejudice arising from a co-accused's record of interview being admitted mid-trial.
  • A failure by a trial judge to publish reasons for refusing a severance application did not, of itself, ground a successful appeal where the Court of Criminal Appeal was able to assess the merits of the refusal from the record.
  • Prejudice must be assessed against the totality of the admissible evidence: surveillance observations, physical proximity to the suitcase, mobile phone activity, and matching cash amounts were treated collectively as compelling proof of the appellant's participation.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported)
- KRM v R [2001] HCA 11; (2001) 206 CLR 221
- R v Piller (1995) 86 A Crim R 249
- Gilbert v R [2000] HCA 15; (2000) 201 CLR 414
- Evans v R [2006] NSWCCA 277
- Friend v R [2007] NSWCCA 41
- Kennedy v R [2008] NSWCCA 21; (2008) 181 A Crim R 185
- R v Pham [2004] NSWCCA 190
- Symss v R [2003] NSWCCA 77