R v Dougas; R v Read; R v Linke; R v Casamento; R v Counihan (No 2) [2021] NSWSC 682

Supreme Court New South Wales

Medium Neutral Citation: R v Dougas; R v Read; R v Linke; R v Casamento; R v Counihan (No 2) [2021] NSWSC 682 Hearing dates: 7-8 June 2021 Date of orders: 8 June 2021 Decision date: 11 June 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW), order that count 2 on the indictment dated 5 November 2020 be tried separately from count 1 on the indictment. (2) Subject to (3), rule that the evidence in (a)–-(f) in the Schedule to these reasons (the Schedule) is not admissible in the trial of any accused on count 2. (3) The ruling in (2) does not apply to the evidence in (c), (e) and (f) in the Schedule, in so far as the evidence is capable of proving Mr Linke's state of mind in the trial against him on count 2 for a purpose other than a tendency purpose. (4) Rule that the evidence in (g), (h) and (i) in the Schedule is not admissible in the trial of any accused on count 1. (5) Subject to (6), rule that the evidence in (j) in the Schedule is admissible only in the trial with respect to the count which covers the period of time within which the particular document was created. (6) The ruling in (5) does not apply to documents in (j) which pertain to count 1 but which are capable of proving Mr Linke's state of mind in the trial against him on count 2 for a purpose other than a tendency purpose. Catchwords: CRIMINAL PROCEDURE — Indictment — Application for severance — Indictment charging five accused as being party to one, or both, of two separate conspiracies, in different locations, between different people and relating to different countries, with no overlap in time — Counts 1 and 2 are to be tried separately EVIDENCE — Alleged cross-admissibility of evidence relating to one conspiracy to proof of the other —Relevance other than to the state of mind of alleged common conspirator not established — Ruling made Legislation Cited: Criminal Code 1995 (Cth), s 70.2 Criminal Procedure Act 1986 (NSW), ss 21, 29 Evidence Act 1995 (NSW), ss 135, 137, 165 Cases Cited: D F Lyons Pty Limited v Commonwealth Bank of Australia (1991) 28 FCR 597 Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; (2014) 300 FLR 323 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 R v Guldur (1986) 8 NSWLR 12 R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 R v Masters (1992) 26 NSWLR 450 R v Quach [2002] NSWCCA 519; (2002) 137 A Crim R 345 Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528 Category: Procedural rulings Parties: Proceedings 2018/150442 Regina Paul Peter Dougas (Accused)