Citation: R v Dougas; R v Read; R v Linke; R v Casamento; R v Counihan (No 2) [2021] NSWSC 682
Court: Supreme Court of New South Wales
Date: 11 June 2021
Judge: Adamson J
Background
Five accused were charged on a single indictment with participation in one or both of two alleged conspiracies to bribe foreign public officials, contrary to s 70.2 of the Criminal Code 1995 (Cth). The first conspiracy concerned payments to Filipino public officials, allegedly between January 2000 and June 2005, and involved three of the accused. The second concerned payments to Vietnamese public officials, allegedly between December 2006 and June 2012, and involved a different group of three accused. One accused, Linke, was named in both counts.
The Crown alleged each conspiracy operated through a single engineering company and involved overlapping personnel, including a key witness granted indemnity from prosecution. However, the Crown did not allege a single overarching conspiracy: it charged two distinct agreements, involving different people, different countries, different locations, and separated by approximately 17 months with no temporal overlap.
Each of the five accused applied by notices of motion for severance, seeking an order that the two counts be tried separately. They argued that a joint trial would cause prejudice and that the evidence relating to each conspiracy was not cross-admissible to prove the other.
Legal Issues
- Whether the two counts should be severed and tried separately under s 21(2) of the Criminal Procedure Act 1986 (NSW), on the grounds that a joint trial would prejudice the accused or that it was otherwise desirable to order separate trials
- Whether the evidence relating to the Philippines conspiracy was admissible in the trial on the Vietnam conspiracy count, and vice versa
- Whether any cross-admissibility of evidence could be established on a basis other than tendency reasoning (which is subject to heightened scrutiny under the Evidence Act 1995 (NSW))
Decision
Adamson J granted the severance application and ordered that the two counts be tried separately. The central reasoning was that the Crown had itself charged two distinct conspiracies with no temporal overlap, different participants, and different countries. Because the Crown did not allege a single overarching conspiracy, the differences between the two counts were not merely peripheral but went to the fundamental character of each charge.
On the cross-admissibility question, her Honour ruled that most of the evidence specific to the Philippines conspiracy was not admissible in the Vietnam trial, and vice versa. The Crown's primary argument was that evidence from one conspiracy was relevant to proving the existence and nature of the other. The court found this argument was not established on any basis other than tendency reasoning. Tendency evidence (broadly, evidence that a person acted consistently with a pattern of past conduct) attracts strict admissibility requirements under the Evidence Act 1995 (NSW), and the Crown had not satisfied those requirements here.
A limited exception was carved out for evidence relevant to Linke's state of mind, given that he was a party to both counts. Certain items of Philippines conspiracy evidence were held admissible in Linke's Vietnam trial, but only for a purpose other than establishing tendency. Similarly, documents spanning the conspiracies were held admissible only in the trial for the count during whose period they were created, subject to the same Linke exception.
The court also noted that the Crown's decision to charge two separate conspiracies rather than one was an exercise of prosecutorial discretion that, while not reviewable, carried forensic consequences. That charging decision shaped both the severance analysis and the cross-admissibility rulings.
Orders Made
- Count 2 on the indictment is to be tried separately from count 1, pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW)
- Evidence in Schedule items (a) to (f) (relating to the Philippines conspiracy) is not admissible in the trial of any accused on count 2 (the Vietnam conspiracy), subject to an exception for items (c), (e) and (f) insofar as they are capable of proving Linke's state of mind on count 2 for a purpose other than tendency
- Evidence in Schedule items (g), (h) and (i) (relating to the Vietnam conspiracy) is not admissible in the trial of any accused on count 1 (the Philippines conspiracy)
- Evidence in Schedule item (j) (documents including emails, budgets, and correspondence demonstrating the alleged methodology) is admissible only in the trial for the count during whose period each document was created, subject to an exception for Linke where count 1 documents are capable of proving his state of mind on count 2 for a purpose other than tendency
Key Takeaways
- Where the Crown charges two separate conspiracies rather than a single overarching one, that prosecutorial choice has direct forensic consequences, including on severance applications and the admissibility of evidence between counts.
- Severance was appropriate because the two conspiracies involved different participants, different countries, different locations, and no temporal overlap, such that a joint trial risked prejudicing the accused without corresponding case-management benefits.
- Evidence going to conduct in one conspiracy is not automatically cross-admissible in the trial of another conspiracy merely because both involved similar methods or personnel: relevance beyond tendency reasoning must be independently established.
- Tendency evidence under the Evidence Act 1995 (NSW) attracts heightened admissibility scrutiny, and the court declined to admit evidence from one conspiracy count in the trial of the other on that basis.
- An accused charged in both conspiracies occupied a different evidentiary position: evidence from the first conspiracy was capable of proving that accused's state of mind in the second conspiracy for a non-tendency purpose, and a tailored ruling was made accordingly.
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth), s 70.2 (offence of bribing a foreign public official)
- Criminal Procedure Act 1986 (NSW), ss 21 (severance of counts), 29 (joint trials)
- Evidence Act 1995 (NSW), ss 135, 137, 165 (tendency evidence and discretionary exclusion)
Cases
- Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8
- Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; (2014) 300 FLR 323
- R v Masters (1992) 26 NSWLR 450
- R v Guldur (1986) 8 NSWLR 12
- R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248
- R v Quach [2002] NSWCCA 519; (2002) 137 A Crim R 345
- Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528
- D F Lyons Pty Limited v Commonwealth Bank of Australia (1991) 28 FCR 597