Citation: R v SIKOS [2016] NSWDC 435
Court: District Court of NSW
Date: 30 November 2016
Judge(s): Judge S Norrish QC
Background
The accused faced a proposed six-count indictment arising from three alleged drug supply transactions in December 2014 and January 2015. The Crown case was that the accused acted as an intermediary in a joint criminal enterprise with two others: Mihelic, who dealt directly with an undercover police officer, and Peovski, who was alleged to be the primary drug supplier. The accused was said to have carried drugs from Peovski to Mihelic before each transaction, and then transported cash back to Peovski afterwards.
Each pair of counts corresponded to one transaction: counts 1 and 2 to 22 December 2014, counts 3 and 4 to 30 December 2014, and counts 5 and 6 to 8 January 2015. Each transaction involved the supply of MDMA and cocaine to the undercover officer. Marked cash handed over by the undercover officer was later found in Peovski's possession following his arrest in February 2015.
On the first day of trial, the accused applied for the counts to be tried separately. The Crown opposed the application, arguing the offences arose from an ongoing business arrangement and that appropriate jury directions could cure any prejudice.
Legal Issues
- Whether the six counts in the proposed indictment should be severed and tried in separate proceedings under section 21 of the Criminal Procedure Act 1986
- Whether evidence relating to one drug supply transaction was cross-admissible in respect of the other transactions
- Whether trying all six counts together would cause real prejudice or embarrassment to the accused that could not be cured by jury directions
Decision
Issue 1: Separate trials for each pair of counts
The court ordered three separate trials: counts 1 and 2 together, counts 3 and 4 together, and counts 5 and 6 together (at [1]-[5]). The motion as originally filed sought only two trials, but during argument the court raised the question of whether the accused's own arguments applied equally to justify three separate trials, and the motion was amended accordingly (at [4]-[5]).
Issue 2: Cross-admissibility of evidence
The court found that the Crown had given no notice of any tendency evidence application, meaning no basis existed to admit evidence from one transaction to prove the accused's guilt in relation to another (at [31]). Each transaction stood independently in terms of the proof required. Although the court acknowledged a degree of contextual connection between the three transactions, including communications between the undercover officer and Mihelic that bridged the episodes, that context did not rise to the level of an ongoing business arrangement of the kind identified in the South Australian decision of R v Ngo and Le (at [65]-[66]).
Issue 3: Prejudice notwithstanding jury directions
The court accepted the general proposition that juries follow directions carefully, and noted its own trial experience in support of that view (at [39]-[40]). However, the court concluded that the critical issue of the accused's knowledge of the presence of drugs in his possession depended on the unique circumstances of each separate transaction (at [56]). Because the evidence establishing knowledge for one transaction could not legitimately assist in proving knowledge for another, there was a real risk that jurors would subconsciously draw impermissible inferences across counts, a risk that directions alone could not adequately address (at [68]).
Issue 4: Contextual evidence in the separate trials
Ordering separate trials did not eliminate all contextual evidence. The court indicated that some evidence of the connection between the undercover officer and Mihelic would need to be introduced in each separate trial to give the jury a proper understanding of the circumstances, without necessarily revealing that other drug supply transactions had occurred (at [69]-[70]).
Orders Made
- Separation of counts 1 and 2 from counts 3 and 4, and counts 5 and 6, resulting in three separate trials
Key Takeaways
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Where the Crown has not served tendency evidence notice, a court considering a severance application will closely examine whether evidence from one count genuinely assists proof of another, or whether jurors would be left to reason impermissibly across transactions (at [31], [55]-[56]).
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The District Court confirmed that similarity in modus operandi across separate drug transactions does not, by itself, establish the degree of cross-admissibility needed to justify a joint trial; the evidence relevant to proof of guilt must do more than reflect a common pattern (at [55], [66]).
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Even where a trial judge is confident that juries follow directions, a real risk of subconscious prejudice can still warrant severance, particularly where the central contested issue (here, knowledge of drug possession) turns on transaction-specific evidence that has no legitimate bearing on the same issue in a companion count (at [56], [68]).
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A contextual connection between separate alleged transactions, such as communications between co-participants that bridge one episode to the next, may be acknowledged by the court without being sufficient to support joinder (at [65]-[66]).
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The court noted, without formal criticism, that last-minute applications going to the form of the indictment, filed on or shortly before the trial date in a matter long listed for hearing, contribute to delay and are procedurally unacceptable, particularly where an accused has been in custody for a substantial period (at [6]-[10]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 - s.21
- Drug Misuse and Trafficking Act 1985
Cases
- Mac v The Queen [2014] NSWCCA 24
- R v Quach [2002] NSWCCA 519
- Harriman v R (1989) 167 CLR 590
- Sutton v The Queen (1983-84) 152 CLR 528
- R v Ngo and Le [2002] SASC 373