Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: MADUBUKO, Henry Ugo v R [2011] NSWCCA 135
• Hearing dates: 8 June 2011
• Decision date: 08 June 2011
• Before: Hodgson JA at [1], [41]; Hoeben J at [39]; Grove AJ at [40]

Decision

Appeal dismissed.

• Catchwords: CRIMINAL LAW - Appeal against conviction - Whether separate trials of co-accused should have been ordered - Applicable principles - Whether there was a significant risk that evidence inadmissible against one accused could have turned a potential acquittal into a conviction.
• Legislation Cited: Criminal Appeal Act 1912 s 6(1)
• Cases Cited: Evans v R [2006] NSWCCA 277; Friend v R [2007] NSWCCA 41; Gilbert v R [2000] HCA 15; (2000) 201 CLR 414; Kennedy v R [2008] NSWCCA 21; (2008) 181 A Crim R 185; KRM v R [2001] HCA 11; (2001) 206 CLR 221; R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported); R v Pham [2004] NSWCCA 190; R v Piller (1995) 86 A Crim R 249; Symss v R [2003] NSWCCA 77
• Category: Principal judgment
• Parties: Henry Ugo MADUBUKO (appellant); CROWN (respondent)
• Representation: Dr Bernard Glennon (appellant); David Jordan (respondent); David H Cohen & Co. (Appellant); Commonwealth Director of Public Prosecutions (Crown)
• File Number(s): 2008/00008434004

Decision under appeal

• Date of Decision: 2008-11-05 00:00:00
• Before: Judge J C Nicholson SC
• File Number(s): 2008/8434

Judgment

1 HODGSON JA: On 13 October 2008 the appellant and two co-accused, Ms Saripah Syed Basri and Mr Ifeanyi Okonkwo, were arraigned before Nicholson DCJ on drug charges.

2 The charge against Ms Basri was that she, on 25 February 2008, at Sydney New South Wales, did import a substance, the substance being a border-controlled drug, namely, heroin, and the quantity imported being a commercial quantity.

3 The charge against the appellant and against Mr Okonkwo was that they, on 25 February 2008, at Sydney New South Wales, did attempt to possess a substance, being a border-controlled drug, namely heroin, which had been unlawfully imported and the quantity imported being a commercial quantity.

4 All accused pleaded not guilty, and they were tried together before Nicholson DCJ and a jury.

5 On 4 November 2008, the jury returned verdicts of guilty against all three co-accused. The appellant was sentenced to imprisonment for six years six months, with a non-parole period of four years two months, to date from 25 February 2008. The appellant appeals from his conviction.

6 At the trial, there was a statement of facts agreed to by the three co-accused and the Crown:

1. On 12 February 2008 Ms Basri was issued with a 6 month visa allowing her to enter India.

2. On 13 February 2008 Ms Basri was issued with an airline ticket by Festive Travels S.B. in Jalan Tun Sambathan, Brickfields Kuala Lumpur for flights booked:

a. Air India flight 433 from Kuala Lumpur to Delhi on 14 February 2008; and

b. Air India flight 432 from Delhi to Kuala Lumpur on 18 March 2008.

3. On 14 February 2008 Ms Basri travelled from Kuala Lumpur to Delhi on air India flight 433 arriving in Delhi on 14 February 2008.

4. Ms Basri spent about 10 days in Delhi before leaving for Mumbai by air. Upon arriving in Mumbai she transferred to Qantas international flight QF124 from Mumbai to Sydney.

5. At about 2.56pm on Monday 25 February 2008 Ms Basri arrived at Sydney Kingsford Smith airport, Mascot, on board Qantas Flight QF124 from Mumbai, India. In India, Ms Basri had checked into hold luggage a single black-coloured trolley-style suitcase, "American Tourister" brand, measuring approximately 74cm long, 40cm wide and 25cm high.

6. Upon arrival of QF124 [at] Sydney Kingsford Smith Airport and prior to Ms Basri's suitcase being sent onto the carousel delivery point, it was seized and inspected by members of the Australian Customs Service and Australian Federal Police.

7. Ms Basri's suitcase was found to contain a package concealed within the lining of the suitcase.

8. The package weighed 3.2kg total (that is, including the package wrapping and its contents).

9. The package was found to contain 3.045kg of brown powder, which tested positive for heroin.

10. Later testing showed powder to be 61.8% pure heroin, meaning the package found concealed within Ms Basri's suitcase contained 1.881kg of heroin.

11. The package was removed from the suitcase by officers of the Australian Customs Service and the Australian Federal Police and replaced with an inert substance.

12. Australian Customs Officers found US$1,500 cash (being 15 x US$100 notes) in Ms Basri's handbag.

13. When spoken to Ms Basri denied all knowledge of her suitcase containing prohibited drugs.

14. The Australian Federal Police tested the package concealed in Ms Basri's suitcase and removed at the airport for fingerprints and DNA evidence. No evidence was found to link any defendant to the package of drugs removed from the bag at the airport.

15. None of the accused is previously known to Police and [each] has no criminal record.

16. Ms Basri agreed to assist Police by taking the suitcase to a location she had been given information about in what is known as a 'controlled delivery'.

17. After the controlled delivery of Ms Basri's suitcase had taken place at Bankstown, and upon search, Mr Madabuko was found to have US$1,000 (being 10 x US$100 notes). Ms Basri had US$500 remaining in her possession after the controlled delivery.

7 Other significant evidence in the Crown case against the appellant came from officers of the Australian Federal Police involved in the controlled delivery referred to in paragraphs 16 and 17 of the agreed statement, and from surveillance running sheets created by AFP officers.

8 This evidence included the following, which was not the subject of dispute:

(1) At about 4.25pm at the AFP office at the airport Ms Basri's mobile phone rang. She thereafter had a phone conversation, and after that conversation Ms Basri said words to the effect that "they" wanted to know if she had her bag and told her about going to the hotel, which Ms Basri identified as the Bankstown Travelodge.

(2) There were other mobile phone calls to Ms Basri, including one at about 4.37pm, after which Ms Basri said words to the effect that "He wants me to go to the reception of the hotel and book a room."

(3) A little later Ms Basri said she had been given the United States money in India, that 500 was to pay the hotel and things like that, and she was told to give 1000 to the friend she was going to meet here.

(4) While police were escorting Ms Basri to the hotel, her mobile phone rang. She had a conversation after which she said "They wanted to know where I was and I said I was in a taxi going to the hotel."

(5) At about 6.10pm at the hotel Ms Basri's mobile phone rang. She had a conversation, after which she said she had told them she was going to room 415.

(6) At about 7.00pm in room 415 Ms Basri's mobile phone rang. She had a conversation, after which she said words to the effect that "They want me to go to the car park of the hotel" and she said she was on her way there.

9 This body of evidence also included the following evidence supported by running sheets, which were not the subject of dispute.

(1) Ms Basri was observed to go to the car park of the hotel with a black suitcase, and wait there from 7.12pm to 7.28pm, when she was observed using a mobile phone.

(2) Between 7.20 and 7.30 the appellant and Mr Okonkwo were observed in Stewart Lane Bankstown, near the Travelodge, walking up and down with both appearing to use a mobile phone several times.

(3) At 7.29pm Ms Basri, still wheeling the black suitcase, left the hotel, walked into Mona Street and through a car park towards Stewart Lane, and then to the end of the car park where she appeared to have a conversation with the appellant and Mr Okonkwo.

(4) Then the appellant and Mr Okonkwo walked up Stewart Lane with Ms Basri following them, still wheeling the black suitcase.

(5) When they got to Chapel Road South outside the Westpac Bank, Ms Basri and the appellant appeared to have a conversation.

(6) Ms Basri and the appellant walked down Chapel Road South and went out of sight and Mr Okonkwo followed a couple of minutes later.

(7) A couple of minutes later again, a car with Mr Okonkwo as driver and the appellant as front passenger reversed out of a parking spot on Chapel Road South.

That car was stopped and the black suitcase was found in the rear of the vehicle. Also found under the passenger seat of the vehicle was a mobile phone with text messages including a message "No room 415". The appellant and Mr Okonkwo were then arrested.

10 Neither the appellant nor Mr Okonkwo participated in any interview with police, but Ms Basri did and her record of interview (ROI) was admitted against her.

11 The trial judge told the jury at the commencement of the trial that the ROI was not admissible against the appellant or Mr Okonkwo. However, towards the end of the trial Mr Okonkwo's counsel took an AFP officer to the interview in cross-examination, leading to an application by the Crown to have the ROI admitted against Mr Okonkwo. Ultimately Mr Okonkwo consented to this.

12 The question as to what should then happen was discussed in terms showing that the trial judge was alive to the possibility of prejudice from the admission of the ROI against Mr Okonkwo and not against the appellant. However, ultimately the trial judge rejected an application for a separate trial of the appellant, saying that he would publish his reasons later. No such reasons were later published.

13 None of the defendants gave evidence at the trial.

14 The Crown address and the trial judge's summing up several times referred to the ROI not being admitted against the appellant, and explained the need to consider the case against each defendant separately on the basis of evidence admissible against that defendant.

15 The appellant relies on the following ground of appeal: That the learned trial judge erred in not granting the appellant a separate trial from Ms Syed Basri and Mr Okonkwo.

16 Dr Glennon, for the appellant, referred the Court to the cases of 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 at [38] and R v Piller (1995) 86 A Crim R 249.

17 Dr Glennon pointed to what he submitted were prejudicial matters in the ROI, notably matters set out as follows in his written submissions:

Q.78- That she went from Malaysia to India to obtain work.

Q.89- She was to go to Australia to meet Gina's brother.

Q.94- In Australia she was to meet a guy.

Q.95- She thought the person she was to meet in Australia was Indian.

Q.381- Person she went to see in India was Gina.

Q.392- She stayed with Gina and her boyfriend in India.

Q.467- Johnnie [the boyfriend of Gina) spoke Nigerian and was Nigerian.

Q.472- Johnnie had mostly Nigerian friends.

Q.476- Gina pleaded with her to take Sari's and Punjabi suits to Gina's brother in Australia.

Q.478- Gina gave her $1,500 - $1,000 for her to give to Gina's brother in Australia to pay for her ticket to return.

Q.484- She didn't realise that Gina's brother could change colour to be black, she assumed that he would be Indian like Gina.

Q.498- Johnnie gave her the money, it was he who kept ringing her when she got to Australia.

Q.502- Johnnie mentioned the room number, and that the guys were black, then he told her black guys would meet her -she had assumed Indian.

Q.503- Johnnie was Gina's boyfriend.

Q.505- Johnnie told her two black guys were outside (hotel in Bankstown ).

Q.506 - Johnnie told her black guys Were near the bus stop (in Bankstown).

Q.618- Contact details were given to her by a Nigerian.

18 Dr Glennon submitted that the jury had been told at the beginning of the trial that they could not use the ROI against either Mr Okonkwo or the appellant, so that when they were later told they could use it against Mr Okonkwo, it was unrealistic to expect that they could put prejudicial material aside in considering the appellant's case. Also, he submitted, the late change from the ROI being admitted only against Ms Basri unfairly put a spotlight on the ROI in the eyes of the jury.

19 Dr Glennon referred to references in the Crown address and the summing up to the ROI, and submitted that these references had the potential to highlight the prejudice by drawing attention to what was clearly stated by Ms Basri in her record of interview touching on issues relevant to the appellant's case.

20 Dr Glennon submitted that the trial judge fell into error in not giving reasons for the decision to refuse the appellant's application for a separate trial, and referred to Kennedy v R [2008] NSWCCA 21; (2008) 181 A Crim R 185 at [25[-[26].

21 Finally, he submitted that the proviso in s 6(1) of the Criminal Appeal Act 1912 ought not to be applied.

22 Considering first the question of failure to give reasons, such failure does generally constitute an error of law where reasons are appropriate, but this does not necessarily require that an appeal be upheld. In particular, if the matter as to which reasons are not given is one on which an appeal court can come to its own view, and if that view is that the result arrived at by the primary judge was correct, then normally an appeal would be dismissed.

23 In the present case, in my opinion there was no significant advantage to the trial judge over this Court in determining whether a separate trial should be granted. There was in fact no significant issue of credibility in the case. The real question in the case was what inferences should be drawn from primary facts which were not substantially in dispute. The case of Kennedy referred to by Dr Glennon was one where the deficiency of reasons supported an inference that the sentencing judge in that case had overlooked material matters, and the Court of Criminal Appeal reached its own view, contrary to that of the sentencing judge.

24 I note that in Evans v R [2006] NSWCCA 277 James J, with Hidden and Hoeben JJ agreeing, rejected a ground of appeal relying on the failure of the trial judge to give reasons, saying this:

[271] The various rulings her Honour made were significant rulings and the appellant was entitled to have reasons given by her Honour for her rulings, particularly where reasons were requested and her Honour undertook to provide reasons. See Harris v R NSWCCA (2005) 432 at para 21 per Studdert J on behalf of the Court.

[272] Her Honour was remiss in not stating, even if quite succinctly, her reasons for a number of her rulings. However, I do not consider that her Honour's failure to state her reasons in separate judgments amounted, as was submitted by counsel for the appellant, to such a fundamental procedural irregularity as to warrant setting aside the appellant's convictions. All, or almost all, of the applications by counsel for the appellant at the trial were argued at considerable length. The competing submissions of the parties were stated and, indeed, often repeated a number of times. The views the trial judge was forming on each application were revealed by frequent remarks made by her in the course of the argument. I consider that in the present case it can be inferred from the transcript of the argument what were her Honour's reasons for making each of her rulings and it is possible for this Court to determine whether her Honour erred in making the rulings.

[273] Counsel for the appellant referred to Fleming v R (1998) 197 CLR 250. However, Fleming , while of some indirect relevance, was a case of a trial by a judge alone.

25 In my opinion, failure to give reasons in this case was not a fundamental procedural irregularity. However, it is appropriate for this Court to reach its own view on whether a separate trial should have been ordered.

26 The Crown relied on principles of law in relation to separate trials stated in Middis , referring to a statement by Sully J, with Spigelman CJ and Hislop J agreeing, in Friend v R [2007] NSWCCA 41 at [147] that "The guiding principles of law are not in doubt: they are summarised by Hunt CJ at CL in R v Middis unreported, 17 March 1991)."

27 However, I do not think this means that the summary was exhaustive and definitive. There was a useful further discussion of principle by Sheller JA, James J and Smart AJ agreeing in Symss v R [2003] NSWCCA 77 at [66-76]:

[66] On 28 November 2000 Simpson J refused to order separate trials. The application for a separate trial was renewed before the trial Judge who refused it. Counsel for the appellant submitted to Howie J that the prejudice which would flow from a joint trial where Masson made assertions in his ERISPs about the appellant having committed armed robberies and having an association with a bikie gang, could not be cured by directions. In a passage already quoted, his Honour said:

"This is the quintessential cut-throat defence case in which each of the accused has given versions of the incident giving rise to the charge to police which implicate the co-offender and exculpate himself."

[67] The trial Judge said that there would be no evidence led in the trial to prove the truth of any of these allegations. The Crown did not seek to prove them. He noted that the Crown's case was that most of what Masson said in his statements to the police was false. The only relevance of the assertions against the appellant was that it "caused [Masson] to remain with Symss and to accompany him to Broken Hill, notwithstanding that he knew that Symss had murdered the deceased." In his further notes of argument the appellant relied upon his submissions under ground 2 about the effect of the admission of prejudicial evidence against him.

[68] The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts.

[69] In an unreported decision of 27 March 1991, in R v Middis 70412 of 1990, Hunt J said on the question of whether there should be separate trials:

"Briefly, the relevant principles are that:

1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and

2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and

3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,

a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial."

[70] A little later in his judgment at p5 Hunt J said:

"I do not believe that the Court of Criminal Appeal in Oliver [(1984) 57 ALR 543] intended an applicant for a separate trial to demonstrate that positive injustice would more likely than not be caused by a joint trial (as it was suggested in argument); nor do I accept that a mere possibility of prejudice is sufficient (as it was also suggested in argument). In my view, what the Court of Criminal Appeal was saying was that, as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would - if it arises - result in positive injustice to him in a joint trial."

[71] In Webb and Hay v The Queen (1994) 181 CLR 41 at 88-89 Toohey J, with whom Mason CJ and McHugh J agreed, said on the question of whether there should have been separate trials:

"King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other.' R v Webb and Hay (1992) 59 SASR 563 at 585. What King CJ referred to as 'strong reasons of principle and policy' were discussed by his Honour in R v Collie (1991) 56 SASR 302 at 307-311. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others R v Demirok (1976) VR 244 at 254. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused R v Harbach (1973) 6 SASR 427 at 433.

In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice, or put another way, whether improper prejudice has been created against an accused.

In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed (1992) 59 SASR at 585: 'That is a commonplace feature of a joint trial and does not of itself render separate trials necessary.' Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred."

[72] In R v Patsalis and Spathis (1999) 107 A Crim R 432 Kirby J refused an application for separate trials which was opposed not only by the Crown but also by the co-accused. In his reasons for judgment, which on appeal to the Court of Criminal Appeal (2001) NSWCCA 476 at 148, Heydon JA, as his Honour then was, described at 148 as a model of their kind, Kirby J said at 434:

"There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered; R v Oliver (1984) 57 ALR 543."

[73] Dealing with cut-throat defences Kirby J referred to the decision of Hunt CJ at CL in Ignjatic (1993) 68 A Crim R 333 and to Webb and Hay . In Ignjatic Hunt CJ at CL, after referring to earlier decisions, said at 339,:

"Obviously, there will be cases in which cut-throat defences are raised where it may be appropriate to order separate trials, but they would not in my view arise frequently . In a proper summing up, the jury will be directed separately in relation to the evidence admissible against each accused; Masters (1992) 26 NSWLR 450 at 455. The undoubted prejudice created by such an unsworn statement by a co-accused in a joint trial is usually considerably lessened in such circumstance, and thus it would not amount to the positive injustice required to warrant separate trials." (emphasis added)

[74] In this Court in Fernando (1999) NSWCCA 66 the trial judge had refused to order separate trials. The Court identified the issue which gave rise to the application for separate trials in these words at para 220:

"The tenor of Brendon Fernando's statements to the police was that while he was present during most of the events which occurred he was subject to the control of Vester Fernando, who was armed with a machete. Indeed, he stated to the police at the time when the victim was killed he was not present, having left the company of Vester Fernando and the victim shortly before the lethal event must have occurred. Thus, while his statements may not be considered as being a complete 'cut-throat' defence they are certainly exculpatory to a degree of his own participation and thoroughly implicate Vester Fernando."

[75] Brendon Fernando did not give evidence so that his statements were not capable of being tested by either the Crown Prosecutor or Vester Fernando's counsel. Even so, the Court said at para 222:

"However, his recorded admissions do, in the Court's view, fall within the type of evidence adverted to in the authorities and particularly by Toohey J in Webb and Hay which support the contention that there ought to have been a joint trial."

[76] For present purposes I regard it as sufficient to emphasise the factors identified by King CJ in Collie and Webb and Hay and adopted by Toohey J in Webb and Hay in the High Court. There are important reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together, particularly where each seeks to cast the blame on the other. The dangers from the admission of evidence which would not have been admitted if the appellant had stood trial alone can be obviated by express and careful directions as were given in this trial.

28 An explanation and possible qualification to what was said in Middis was expressed as follows by Adams J, with Spigelman CJ agreeing and Hulme J expressing no disagreement, in R v Pham [2004] NSWCCA 190 at [38-40]:

[38] In R v Baartman (unreported, Court of Criminal Appeal 6 October 1994) this Court approved the following summary of the relevant principles enunciated by Hunt J in R v Middis (unreported, NSWSC 27 March 1991), an approval repeated by Fernando [1999] NSWCCA at [210] -

"Briefly, the relevant principles are that:

1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and

2. Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and

3. Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial."

[39] Two phrases in this summary need some explanation. In ordinary speech, "immeasurably" usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant "significant, though incommensurable". The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to "positive injustice". Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence.

[40] I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant's case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender's case is material. Indeed, the opposite would seem to be the case since, if the co-accused's case was weak, or weaker than the applicant's, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case.

29 I agree with those views expressed by Adams J.

30 In Pham , an appeal was allowed on the basis of a failure to order separate trials where a record of interview given by one accused was admitted, with a jury being told it was not evidence against the other accused. In that case there were two eyewitnesses, who gave evidence against both accused and whose credit was questionable and was strongly attacked. The record of interview was supportive of the account given by these eyewitnesses, and the Court considered that the jury could not separately form two assessments of the credibility of these witnesses, one assessment using the record of interview and the other ignoring it. I note that no similar issue arises in this case where, as I have said, there was no significant dispute as to the primary facts.

31 It was submitted for the Crown that the first of the three requirements stated by Hunt CJ at CL in Middis was not satisfied in this case, in that the evidence against the appellant was not "significantly weaker" than that against Mr Okonkwo, since the appellant was found with $US1,000 and he was seen to walk out of sight with Ms Basri. Whether or not that is so, for the reasons given by Adams J in Pham , I do not think this would, in any event, necessarily be fatal to the appellant's appeal.

32 In my opinion the primary question is whether there was a significant risk that prejudicial material in the ROI, which was not admissible against the appellant, could have turned a potential acquittal to a conviction. If that was the case, this could amount to a positive injustice requiring the ordering of separate trials.

33 Dr Glennon relied particularly on matters in the ROI dealing with the fact that despite Ms Basri's initial belief that her friend Gina's brother would meet her, who she assumed must be Indian like Gina, she was told by Gina's boyfriend, Johnny, that she was to meet two black guys. In my opinion, neither that material, nor any other material in the ROI, was materially prejudicial; and to the extent that there might have been some risk of prejudice, the risk was at most slight and was such as could have been overcome by appropriate directions and, in fact, was so overcome.

34 The evidence of frequent mobile phone calls, the arrangement to meet the person to whom the bag was to be given in the car park of the hotel, the subsequent movements of Ms Basri following another apparent mobile phone call to encounter the appellant and Mr Okonkwo in the vicinity of Stewart Lane, the subsequent movements of Ms Basri and Mr Okonkwo and the appellant, and the reappearance of the appellant and Mr Okonkwo in a car with the suitcase a couple of minutes later, overwhelmingly supported the inference that the appellant was a person that Ms Basri was, pursuant to the phone calls, to meet to hand over the suitcase.

35 In addition, the finding of ten $US100 notes in the possession of the appellant and five $US100 notes remaining in the possession of Ms Basri overwhelmingly supported the inference that there was a transaction in which Ms Basri gave the appellant ten of the fifteen $US100 notes, which she had had in her possession, which she had said to the AFP officers at the airport that she had been told to give to the friend she was going to meet here.

36 Having regard to all that evidence, in my view, what was in the ROI concerning two black guys added little, if anything, of significance.

37 In my view, the appellant's attempted reliance on the content of the Crown address and the summing up do not directly go to the ground of appeal, since these matters occurred after the decision complained about. No further application was made to the trial judge for a separate trial of the appellant after that decision. It could, however, be said that what happened after that decision simply showed the prejudice that should have been anticipated at the earlier time, or else possibly supported an appeal on some basis outside the existing ground of appeal. Whether or not these arguments are available, in my opinion there was nothing in the Crown address or the trial judge's summing up which supports them, and indeed, in my opinion the trial judge's summing up appropriately stressed that the ROI was not admitted against the appellant and appropriately dealt with any slight risk of prejudice that there may have been (cf Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 at [31].)

38 For those reasons, in my opinion the ground of appeal is not made out and it is not necessary to consider the proviso. I propose that the appeal be dismissed.

39 HOEBEN J: I agree.

40 GROVE AJ: I also agree.

41 HODGSON JA: So the order of the Court is: appeal dismissed.

oOo

Decision last updated: 27 June 2011