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Court of Criminal Appeal 19 April 2016

Trotter v R

[2016] NSWCCA 57

Drugs
CRIMINAL LAW JOINT CRIMINAL ENTERPRISE LIMITED EVIDENCE AGAINST APPLICANT WHETHER SEPARATE TRIAL PROCEDURE JOINT TRIALS ACCUSED

Citation: Trotter v R [2016] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 19 April 2016
Judge(s): Beazley P; Johnson J; Harrison J

Background

The applicant faced a single count of knowingly taking part in the supply of cocaine under the Drug Misuse and Trafficking Act 1985 (NSW). She was charged alongside five co-accused, including her husband and members of his family, on an indictment comprising 18 counts in total. The joint trial was set down for July 2016.

The Crown alleged two separate joint criminal enterprises: one involving the applicant and three co-accused relating to cocaine supply, and a distinct enterprise involving four other accused relating to heroin supply. The applicant had no alleged involvement in the heroin enterprise.

The direct evidence against the applicant was narrow, consisting of intercepted phone and SMS conversations from a single day, 24 January 2014. Those intercepts showed her husband directing her to retrieve items from a jacket pocket and hand them to a visitor. Her case was that she acted as an innocent conduit, unaware of the nature of what she was passing on. A District Court judge refused her application for a separate trial, and she sought leave to appeal that interlocutory decision.

  • Whether the trial judge's discretion to refuse a separate trial under s 21(2) of the Criminal Procedure Act 1986 (NSW) miscarried.
  • Whether the trial judge failed to have regard to a specific text message that arguably weighed against the applicant's knowing participation in the supply.
  • Whether the trial judge failed to properly apply the principles of joint criminal enterprise to the evidence proposed to be led by the Crown.
  • Whether the volume of evidence unrelated to the applicant, particularly evidence concerning the heroin enterprise, would cause such prejudice as to amount to a miscarriage of justice if a separate trial was not ordered.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the trial judge's exercise of discretion.

On the first specific ground, the Court found it was clear from the trial judge's reasons that he had, in fact, considered the text message the applicant identified. No relevant omission was established.

On the broader question of the joint criminal enterprise evidence, the Court found no error in the judge's approach. Because the Crown needed to prove the applicant's knowing participation, much of the enterprise evidence was properly admissible against her. That evidence would not therefore carry any substantial prejudicial effect beyond its legitimate probative use.

Regarding the heroin enterprise evidence, the Court accepted that the applicant would be present at a trial where some evidence had no bearing on her. However, it held that the mere existence of unrelated evidence is insufficient to demonstrate a miscarriage of justice. The applicant had not shown that this evidence would be overly lengthy or particularly prejudicial, and the Court noted that a trial judge could give clear directions distinguishing the two enterprises. The Court distinguished R v Chami; R v Sheikh [2002] NSWCCA 136, where highly emotive evidence and the risk of ethnic generalisation had created a qualitatively different kind of prejudice not present here.

Orders Made

• Leave to appeal allowed
• Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a disparity in the volume of evidence between co-accused does not, by itself, justify a separate trial order under s 21(2) of the Criminal Procedure Act 1986 (NSW).
  • Where evidence of a joint criminal enterprise is legitimately admissible to prove an individual accused's knowing participation, that evidence does not carry a "substantial prejudicial effect" against that accused simply because it also implicates co-accused more extensively.
  • The mere fact that a joint trial will involve evidence wholly unrelated to one accused, including evidence of a distinct criminal enterprise, is not sufficient to establish a miscarriage of justice in the absence of a separate trial.
  • Appropriate jury directions remain a significant tool available to trial judges in managing potential prejudice arising from the presence of multiple accused and distinct factual allegations within one proceeding.
  • R v Chami; R v Sheikh was distinguished on the basis that its recognised prejudice arose from the emotive character of the evidence and the risk of racial generalisation, circumstances not replicated by the general co-existence of unrelated evidence in a multi-accused trial.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 21(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- R v Chami; R v Sheikh [2002] NSWCCA 136; 128 A Crim R 428
- DAO v R [2011] NSWCCA 63
- DSJ v R; NS v R [2014] NSWCCA 77
- Fattal v R [2006] NSWCCA 359
- House v The King [1936] HCA 40; 55 CLR 499
- Madubuko, Henry Ugo v R [2011] NSWCCA 135
- Pham v Regina [2006] NSWCCA 3
- R v Pham [2004] NSWCCA 190
- Symss v The Queen [2003] NSWCCA 77
- Webb & Hay v The Queen [1994] HCA 30; 181 CLR 41
- R v Al Khair (unreported, NSW Court of Criminal Appeal, 20 June 1994)
- R v Baartman (unreported, NSW Court of Criminal Appeal, 6 October 1994)
- R v Domican and Drummond (No 2) (1990) 46 A Crim R 408
- R v Middis (unreported, NSW Supreme Court, 27 March 1991)