District Court New South Wales Medium Neutral Citation: R v Campbell; R v Waters (No. 2) [2023] NSWDC 627 Hearing dates: 29 May 2023 Date of orders: 29 May 2023 Decision date: 07 June 2023 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Application refused. For order see [21]. Catchwords: Applications for discharge of the jury and a separate trial - S21 Criminal Procedure Act 1986. Legislation Cited: Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 (NSW) Cases Cited: De Jesus v R (1986) 68 ALR 1 Kamm v R [2007] NSWCCA 201 Sutton v R (1984) 152 CLR 528 Category: Procedural rulings Parties: The Commonwealth Director of Public Prosecutions (The Crown) David Edward John Campbell (Accused Campbell) Tristian Egon Sebastian Waters (Accused Waters) Representation: Counsel: Mr S Flood (Crown) Mr M Varley (Crown) Mr R Driels (Accused Campbell) Mr D Dalton SC (Accused Waters) Mr P Hogan (Accused Waters) Solicitors: Ms C Patrizi (Crown) Ms N Anastasiou (Accused) Mr T Dib (Accused Waters) File Number(s): 2018/17350 (Campbell) & 2018/20632 (Waters) Publication restriction: Nil. JUDGMENT 1. On 15 May 2023 the co-accused were arraigned on the following counts on the Indictment:- 1. Count 1 that between about 18 January 2017 and about 24 October 2017, at Sydney in the State of New South Wales and elsewhere, they did conspire with each other, Rohan Peter Arnold and divers others to import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity. 2. Count 2 that between about 24 October 2017 and 16 January 2018, at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Rohan Peter Arnold and divers others to possess a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity. 1. The accused Campbell pleaded not guilty to both counts and the accused Waters pleaded not guilty to Count 1 and guilty to Count 2 "but for the date range which was from about 26 December 2017 to 16 January 2018". 2. Count 2 on the Indictment was subsequently amended by consent pursuant to s20 of the Criminal Procedure Act 1986 by adding the words "and the substance having been unlawfully imported". Further, with the agreement of the parties, the co-accused were not re-arraigned – see Kamm v R [2007] NSWCCA 201 at [37]. 3. Following empanelment of the jury on 16 May the trial was adjourned until 22 May 2023 because of the risk of COVID-19 infection raised properly by counsel for Campbell. 4. On Monday 22 May 2023 opening addresses took place and the Crown called its first two witnesses. Unfortunately, on 23 May 2023 the matter was adjourned further as a result of myself as trial judge testing positive to COVID-19. The matter was stood over until 29 May 2023. 5. On 29 May 2023 counsel for Campbell applied to discharge the jury in Mr Campbell's trial and applied for a separate trial pursuant to s21 of the Criminal Procedure Act 1986 (NSW) on the basis of embarrassment and prejudice that had been created to his client arising from the opening address of Senior Counsel for Waters. 6. The portion of learned Senior Counsel's opening relied on by counsel for Campbell was as follows:- "The second count relates to a conspiracy to possess those same drugs between 24 October that end date for count 1 and 16 January 2018. Now, you might recall, when he pleaded guilty to that charge, he actually said he disputed the dates and that his involvement was from approximately 26 December 2017 through to the same end date, being 16 January 2018. I anticipate that, in the evidence in relation to his involvement in count 2 for which he has pleaded guilty, accepted responsibility there will be evidence that he also participated in that offence whilst being often rewarded at the outset ultimately only under duress, being threats, not only to his life, but to the life of his wife and infant son, and he is also the subject of attacks. But, he has accepted that the defence of duress in his circumstances would not be satisfied and he's accepted his responsibility for his involvement in that offence. That's because, as much as he was in fear of his life and the lives of his wife and child, he didn't attempt to go to the police, particularly in Serbia or in Dubai or contact the police in Australia because, as Mr Crown said, he was then living in Dubai. He has accepted his responsibility. So, the major issue in this trial in relation to Mr Waters is your determination in regards to whether or not he's guilty, whether the Crown can prove beyond reasonable doubt and has proved to your satisfaction, after you've heard all the evidence that he is guilty of conspiring to import this cocaine." 1. It was submitted that by raising the defence of duress and stating that it did not apply in his circumstances, "notwithstanding that he was in fear of his life and the lives of his wife and child but did not attempt to go to the police", gave rise to embarrassment and prejudice to Campbell in putting the same defence of duress uninhibitedly to the jury in circumstances where both the prosecution and a co-accused were indicating that going to the police may be sufficient in those circumstances to alleviate the duress, particularly having regard to the words used by Senior Counsel, "as much as he was in fear of his life and the lives of his wife and child". Counsel submitted that this resulted in embarrassment and prejudice to Campbell that could not be overcome by any direction to the jury. The Crown opposes the application 1. The Crown opposed the application and referred the court to s10.2 of the Code which provides as follows:- "10.2 Duress (1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress. (2) A person carries out conduct under duress if and only if he or she reasonably believes that: (a) a threat has been made that will be carried out unless an offence is committed; and (b) there is no reasonable way that the threat can be rendered ineffective; and (c) the conduct is a reasonable response to the threat. (3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out." 1. The Crown submitted the onus will be on the Crown to establish beyond reasonable doubt that the accused was not acting under duress. The Crown submitted that by qualifying his remarks learned Senior Counsel for Waters made it clear that the defence of duress did not apply "in his circumstances" which clearly qualified his position. 2. The Crown submitted the jury will be told that there are separate trials occurring in relation to each count and to consider the evidence in relation to each of those trials separately and that they will be given directions in relation to the nature of duress and how they must then apply those directions to the facts as they find them in each of the separate cases. Therefore the capacity for Campbell to run a defence in circumstances where Waters has entered a plea of guilty is not embarrassed. He is still perfectly capable of doing that and the law is clear that juries are assumed to follow directions. 3. There was no application brought by counsel for Waters. Determination 1. I refused the application and these are my reasons for doing so. 2. S21 of the Criminal Procedure Act 1986 provides relevantly as follows:- "21 Orders for amendment of indictment, separate trial and postponement of trial (2) If of the opinion— (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment." 1. Campbell claims embarrassment and prejudice here by virtue of the fact that in his opening to the jury, Senior Counsel for Waters disavowed reliance on the defence of duress "in his circumstances" because as much as he was in fear of his life and the lives of his wife and child, he did not attempt to go to the police. Campbell claims that he was taken by surprise by the entry by Waters of a plea of guilty to Count 2 (albeit restricted to dates) as upon arraignment before other pre-trial matters were determined he had entered pleas of not guilty to both Counts on the Indictment. 2. The Crown here was entitled to join both accused in the same Indictment in respect of Counts 1 and 2 given the matters are so inextricably interrelated, but for the dates particularised in each count. Clearly Count 2 follows chronologically upon Count 1. 3. It is likely that the evidence adduced in the Crown case will be admissible against both co-accused, however if it is not, clear directions can be given to the jury about that. 4. The fact that Waters by his Senior Counsel has disavowed reliance upon a defence of duress in respect of Count 2 does not prevent Campbell from relying upon such a defence if he chooses to do so. The onus will then be on the Crown pursuant to s10.2 of the Code to prove beyond reasonable doubt that the accused was not acting under duress. 5. No prejudice arises to Campbell to raise duress if it is available to him. 6. This is not a situation where there is a risk of inadmissible evidence being misused by the jury giving rise to embarrassment or prejudice to a co-accused. Further, if any such risk did arise, clear directions can be given to the jury to guard against the risk of impermissible prejudice - see De Jesus v R (1986) 86 ALR 1 where the High Court applied Sutton v R (1984) 152 CLR 528. Order 1. For the above reasons I order the application to be refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2024