New South Wales Court of Criminal Appeal CITATION: Regina v HENRY; Regina v GRAVETT; Regina v SWANSSON [2008] NSWCCA 248 HEARING DATE(S): 22/10/2008 JUDGMENT DATE: 24 October 2008 JUDGMENT OF: McClellan CJ at CL at 1; Nettle AJA at 2; Simpson J at 42 DECISION: [41] It follows that I would allow the appeal in part. I would set aside the order below. In lieu thereof I would order that Mr Swansson be tried separately and apart from Mr Henry and Mr Gravett but that, subject to further order, that Mr Henry and Mr Gravett be tried together. CATCHWORDS: CRIMINAL LAW - Trial - Separate trials for co-offenders - Error in exercise of discretion - Orders for separate trials varied Criminal Appeal Act 1912, s 5F LEGISLATION CITED: Criminal Code (Cth), s 11.1(1) Criminal Code (Cth), s 11.5 Customs Act 1901 (Cth), s 233B(1B) CATEGORY: Principal judgment House v The King [1936] HCA 40; (1936) 55 CLR 499 Lui Mie-Lin v The Queen [1989] 1 AC 288 R v Alexander [2002] VSCA 183; (2002) 6 VR 53 R v Baartman (Court of Criminal Appeal, 6 October 1994 unreported) R v Bikic [2000] NSWSC 223; (2000) 112 A Crim R 163 R v BWM (1997) 91 A Crim R 260 R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428 R v Darby [1982] HCA 32; (1982) 148 CLR 668 R v Darrington and McGauley [1980] VR 353 R v Dinh (Supreme Court of New South Wales, Wood CJ at CL, 15 September 1999, unreported) CASES CITED : R v Dinh [2000] NSWCCA 536 R v Ditroia and Tucci [1981] VR 247 R v Georgiou [1999] NSWCCA 125 R v Gibb and McKenzie [1983] 2 VR 155 R v Jones and Waghorn (1991) 55 A Crim R 159 R v Matovski (1989) 15 NSWLR 720 R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported) R v Piller (1995) 86 A Crim R 249 R v Su [2003] VSC 306; (2003) 142 A Crim R 379 Swansson v R (Cth) [2008] NSWCCA 56 Swansson v R; Henry v R [2007] NSWCCA 67; (2007) 168 A Crim R 263 Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 Regina (Appellant) PARTIES: Peter James HENRY (Respondent) Hugh William James GRAVETT (Respondent) David Anthony SWANSSON (Respondent) FILE NUMBER(S): CCA 2007/14997; 2007/13589; 2007/14999 G A Farmer (Crown) COUNSEL: P F Hogan (Respondents - SWANSSON; GRAVETT) A Francis (Respondent - HENRY) CDPP SOLICITORS: Gregory Goold Richard Cummins William O'Brien & Ross Hudson LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): GRAVETT 07/11/0578; HENRY 04/11/1410; SWANSSON 04/11/1410 LOWER COURT JUDICIAL OFFICER: Sweeney DCJ LOWER COURT DATE OF DECISION: 15 September 2008 IN THE COURT OF CRIMINAL APPEAL CCA 2007/14997 CCA 2007/13589 CCA 2007/14999 McCLELLAN CJ at CL NETTLE AJA SIMPSON J Friday 24 October 2008 Regina v Peter James HENRY Regina v Hugh William James GRAVETT Regina v David Anthony SWANSSON HEADNOTE On 15 September 2008 Peter James Henry, Hugh William James Gravett and David Anthony Swansson were presented for trial on charges that between that between 1 June 2003 and 17 December 2003 Henry and Gravett conspired with each other, Anthony Edward King, Mohamad Raghid Alchikh, Robert Hands and divers other persons to import into Australia prohibited imports contrary to s 233B(1B) of the Customs Act 1901 (Cth) and s 11.5 of the Criminal Code (Cth), and that between about 28 September 2003 and 17 December 2003 Gravett aided abetted counselled and procured Anthony Edward King and Mohamad Raghid Alchikh to attempt to import into Australia prohibited imports contrary to s 233B(1B) of the Customs Act 1901 (Cth) and s 11.1(1) of the Criminal Code (Cth). All three accused pleaded not guilty. Swansson thereupon applied for an order that he be tried separately and alone and Henry applied for an order that he be tried separately from Swansson. Gravett applied for an order that he be tried separately from Henry. Sweeney DCJ ordered that each of the accused be tried separately from each other and alone. The Director of Public Prosecutions appealed against the order pursuant to s 5F of the Criminal Appeal Act 1912 on grounds that (1) the judge erred in finding that the case against Swansson was substantially different to the case against Henry; (2) that it was not open to the judge to conclude that evidence proposed to be led from Alchikh on behalf of Swansson created a real risk of positive injustice to Henry; (3) that the judge erred in finding that facts which occurred after a previous order that Swansson be tried separately from Henry and Gravett had been taken into account by the judge who had made that order; (4) that the judge had erred in holding that evidence which Henry proposed to give in explanation of telephone intercepts to be relied upon by the Crown created a real risk of substantial prejudice to Gravett; and (5) that the judge erred by making an order for separate trials of Swansson and Gravett when there was no identifiable basis for the making of that order. Per Nettle AJA (McClellan CJ at CL and Simpson J agreeing): (1) Sweeney DCJ did not err in holding that the case against Swansson was substantially different to the cases against Henry and Gravett: [15] – [17]. R v Dinh (Supreme Court of New South Wales, Wood CJ at CL, 15 September 1999, unreported); R v Dinh [2000] NSWCCA 536 referred to. (2) It was not shown that Sweeney DCJ was in error in holding that the evidence proposed to be led from Alchikh on behalf of Swansson created a real risk of positive injustice to Henry: [24] – [27]. R v Su [2003] VSC 306; (2003) 142 A Crim R 379; R v BWM (1997) 91 A Crim R 260; R v Matovski (1989) 15 NSWLR 720 referred to. (3) Sweeney DCJ did not find that facts which occurred after the previous order for a separate trial of Swansson had been taken into account by the judge who made that order: [30]. (4) Sweeney DCJ had erred in holding that evidence which Henry proposed to give in explanation of telephone intercepts to be relied upon by the Crown created a real risk of substantial prejudice to Gravett: [35] - [36]. (5) It did not appear that there was an adequate basis to order that Gravett be tried separately from Swansson, but it made no difference because it was not wrong to order that Swansson be tried separately from Henry and, since Swansson would need to be tried separately from Henry, the most appropriate order was for Gravett and Henry to be tried together and that Swansson be tried alone: [37] - [38]. (8) The orders made below are set aside and it is ordered that David Anthony Swansson be tried separately and apart from Peter James Henry and David Anthony Swansson and that subject to further order Peter James Henry and Hugh William James Gravett be tried together: [42]. IN THE COURT OF CRIMINAL APPEAL CCA 2007/14997 CCA 2007/13589 CCA 2007/14999 McCLELLAN CJ at CL NETTLE AJA SIMPSON J Friday 24 October 2008 Regina v Peter James HENRY Regina v Hugh William James GRAVETT Regina v David Anthony SWANSSON Judgment 1 McCLELLAN CJ at CL: I agree with Nettle AJA. 2 NETTLE AJA: This is an appeal by the Director of Public Prosecutions under s 5F of the Criminal Appeal Act 1912 against the interlocutory judgment and order of her Honour Judge Sweeney given and made on 15 September 2008 that each of the accused men, Henry, Gravett and Swansson, be tried separately from each other and alone. 3 Henry and Gravett are charged pursuant to s 233(1B) of the Customs Act 1901 (Cth) and s 11.5 of the Criminal Code (Cth) that between 1 June 2003 and 17 December 2008 they conspired with Anthony Edward King, Mohamed Raghid Alchikh, Robert Hands and divers others to import into Australia prohibited imports, namely, not less than a commercial quantity of 3, 4 methylene dioxy–n –methyl amphetamine (MDMA) comprised of 165,000 tablets of MDMA, otherwise known as ecstasy. The importation is alleged to have occurred on 3 December 2003 when the P&O NedLloyd vessel Botany docked at West Swanson dock in Melbourne. The ship was carrying a container of 54 bar refrigerators with 23 kilograms of ecstasy hidden in the foam lining of the doors of six of those refrigerators. 4 Swansson is charged pursuant to s 233(1B) of the Customs Act 1901 (Cth) and s 11.1(1) of the Criminal Code (Cth) that between 28 September 2003 and 17 December 2003 he did aid abet counsel and procure the commission of an offence, namely, the attempted importation by King and Alchikh of the MDMA. 5 All three accused and co-accused Alkarim, Warner, Hands and Gibson, were first presented for trial together, albeit on separate indictments, in February 2005. On 2 February 2005, his Honour Judge Woods ordered that Swansson and Alkarim be tried separately from Henry, Gravett, Warner, Hands and Gibson. Alchikh was separately presented and pleaded guilty to conspiring to import ecstasy. Thereafter he was sentenced on the basis of an undertaking to give evidence against his co-accused. 6 The trial of Henry, Gravett, Warner, Hands and Gibson began on 7 February 2005 and concluded on 26 May 2005. Warner was acquitted, and the jury could not reach a verdict in the case or Hands and Henry. Gravett was convicted of conspiring to import the MDMA. 7 Swansson and Alkarim were put up for trial and Hands for retrial in August 2005. The trial began on 1 August 2005 and concluded on 20 October 2005. Alkarim and Hands were convicted of conspiring to import the MDMA and Swansson was convicted of aiding and abetting the attempted importation of the MDMA. 8 After successful appeals to this Court, the convictions were quashed on the ground that the several accused should have been presented on a single indictment; and, in the case of Henry and Gravett, it was ordered that new trials be had (Swansson v R; Henry v R [2007] NSWCCA 67; (2007) 168 A Crim R 263). Swansson advanced additional grounds of appeal but ultimately failed in an application for a direction for the entry of a judgment and verdict of acquittal (Swansson v R (Cth) [2008] NSWCCA 56). 9 Before Swansson's additional grounds of appeal were finally heard and determined, Henry and Gravett were put up for retrial in January 2008, and retried between 29 January 2008 and 18 March 2008 (At that stage Swansson was still seeking a direction for entry of a judgment and verdict of acquittal.). On that occasion, however, the jury failed to reach a verdict. 10 Following the rejection of Swansson's additional grounds of appeal, in September 2008 Henry, Gravett and Swansson were put up for retrial together. At the outset, counsel for Henry sought an order that Henry be tried separately from Swansson. The principal basis of his application was that counsel for Swansson proposes to call Alchikh to give evidence which it is believed will exonerate Swansson but which it is feared may be prejudicial to Henry. On the same day, counsel for Gravett moved ore tenus for an order that Gravett be tried separately from Henry. Counsel for Swansson made submissions in support of both applications. 11 After receiving written submissions and hearing oral argument, the judge allowed the applications. Her Honour held that each of the accused had established by reference to the Middis criteria (See R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported)) that they should have separate trials and that the interests of justice required that each of the accused be tried separately from each other and alone. Relevant principles 12 The principles which govern an application for separate trials are tolerably clear: 1) First, there are strong reasons of policy and principle why persons charged with committing an offence jointly or charged as participants in different degrees in relation to the same offence should be tried together ( Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 88-9). The concerns which support a joint trial in such circumstances include the trauma and inconvenience to witnesses which are involved in subjecting them to more than one trial; the increased time and expense involved in separate trials; and the highly desirable objective of avoiding inconsistent verdicts as between trials ( R v Jones and Waghorn (1991) 55 A Crim R 159, 185). 2) Secondly, the accused bears the burden of establishing that there is a need for separate trials. Separate trials should not be ordered unless it is demonstrated that there is a real risk of positive injustice as a consequence of a joint trial ( R v Bikic [2000] NSWSC 223; (2000) 112 A Crim R 163, 167 [22]-[23]). 3) Thirdly, while most joint trials may be productive of some degree of prejudice, prejudice of that sort will not be taken to amount to positive injustice unless it is of a kind which is not really amenable to nullification by judicial directions to the jury ( R v Ditroia and Tucci [1981] VR 247, R v Jones and Waghorn (1991) 55 A Crim R 159, 185). 4) Fourthly, one situation in which there may be grounds for separate trials is where the evidence admissible against one accused is significantly different from the evidence admissible against the other ( R v Darby [1982] HCA 32; (1982) 148 CLR 668, 678). Another, is where there is a likelihood that some evidence which is led against one accused will be prejudicial to the other, albeit inadmissible against him or her. A separate trial may be also required in some cases where the evidence against one accused may in effect swamp the jury's consideration of the case against the other accused. The same may be true where the circumstances are such as to create a serious risk of an irrational finding of guilt by association ( R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428, 431). 5) In R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported, 4); see also R v Baartma n (Court of Criminal Appeal, 6 October 1994 unreported); R v Piller (1995) 86 A Crim R 249; R v Georgiou [1999] NSWCCA 125, [5]), Hunt CJ at CL identified three categories of case in which an order for separate trials may be warranted as follows: a) Where the evidence against an applicant is significantly weaker than and different to the evidence admissible against other accused. b) Where the evidence against a co-accused contains material which is highly prejudicial to the applicant although not admissible against him or her. c) Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably (in the sense of significantly albeit incomeasurably) stronger by reason of the prejudicial material. 6) It is recognised, however, that such guidelines as have been proffered cannot be exhaustive and that each case will depend upon its own facts. Each case involves a discretionary balancing exercise in which the concerns which support a joint trial must be weighed against the prejudices to the applicant ( R v Alexander [2002] VSCA 183; (2002) 6 VR 53, 67 [31]). 13 Different considerations may apply depending upon whether the trial judge is considering an application for severance at the outset of the trial or whether an appellate court is considering whether injustice has accrued to one of the accused from a joint trial (Ibid). Ground 1(a) 14 As first formulated, Ground 1(a) of the appeal was that the judge erred in finding that the case against Swansson was substantially different from the case against his co-accused. But as so put, the ground was untenable. As the Crown now concedes, her Honour made no such finding and her reasoning was not dependent on the idea of there being a substantial difference between the case against Swansson and the case against his co-accused. Counsel for the Crown sought therefore to argue in the alternative that the judge had erred in accepting that there was 'some merit' in a submission put on behalf of Swansson that the Crown case against him was 'substantially different in character' from the case against his co-accused. In counsel's submission, there was no merit in that argument because the evidence to be led against each accused would be substantially the same, namely, surveillance evidence and telephone intercepts of each of them engaging in various activities associated with the importation. 15 As far as I can see, her Honour did not make any error of that kind either. Relevantly, her Honour observed: Mr Swansson's application was made on the basis that he is charged with a different offence of different scope to that of the other two accused; that he is not charged with conspiring with the people with whom Mr Henry and Mr Gravett are charged with conspiring; that he is not charged with a conspiracy at all and that the time period of his charge is more limited; he is charged only with aiding and abetting the attempted importation by Mr King and Mr Alchikh… So that it was submitted on behalf of Mr Swansson there is a substantial difference in the cases which will be presented against Mr Swansson and against the other accused and that evidence of the actions of Mr King and Mr Henry, for example will not be admissible against Mr Swansson. 16 Thereafter, although her Honour expressly declined to decide the issue of whether evidence of the actions of King and Henry would be admissible against Swansson, she noted that, in order to prove the offence with which Swansson is charged, the Crown would probably have to present much the same if not all of the evidence that it proposes to lead against Henry and Gravett. Her Honour's observation as to there being 'some merit' in the arguments put on behalf of Mr Swansson' is thus to be read as subject to that recognition. I take it to mean that, even though the evidence to be led against each of them may be the same, the case to be presented against each of them will be substantially different. 17 With respect, I agree with her Honour. Like her Honour, I consider that there is a substantial difference between the case which will be presented against Mr Swansson and the cases which will be presented against the other accused. For whether or not the evidence to be presented in each case turns out to be the same, there is on any analysis a substantial difference between the case to be presented against an aider and abetter of an offence of attempted importation and a case of conspiracy to effect the importation (R v Dinh, R v Dinh (Supreme Court of New South Wales, Wood CJ at CL, 15 September 1999, unreported), [68]-[70]; R v Dinh [2000] NSWCCA 536 [27]). Ground 1(b) 18 I turn to Ground 1(b). After Alchikh was arrested on 17 December 2008 he made a record of interview in which he stated that Swansson was not aware that the drugs were in the refrigerators. He repeated those facts in a detailed police statement dated 13 August 2004 and also in affidavits relied upon by the Crown in support of proceedings to extradite King and Salhari in April and August 2004. Alchikh also gave evidence to that effect at a bail hearing in July 2004, and for the Crown at the committal proceedings of Henry Gibson, Swansson and Alkarim in November 2004, and again to the same effect at his own sentencing hearing in August 2005, and at the trial of Swansson, Alkarin and Hands in 2005 (where he was called by the Crown and made available for cross-examination). 19 Consistently with views expressed by the Magistrate at the committal hearing and Judge Woods at the first trial, the Crown now takes the view that Alchikh is not a reliable witness and does not propose to call him at the retrials of Henry Gravett and Swansson, or to make him available for cross-examination. Counsel for Swansson, however, proposes to call Alchikh to give evidence to exonerate Swansson and, in order to establish that Alchickh was at one stage regarded by the Crown as a reliable witness, he intends to elicit from Alchikh that he made statements to the police on which the Crown relied. 20 Counsel for Henry argued below that he was concerned that, in that event, Alchikh might say something adverse to Henry which would necessitate an application for discharge of the jury and that the risk of discharge should be avoided by granting Henry a separate trial. In order to meet those concerns, the Crown proffered an undertaking that it would not cross-examine Alchikh about the things which he had said in previous evidence concerning Henry and would object if there were any attempt by Alchikh to give evidence about those things. The judge took the view that, despite the proffered undertaking, the prospect of Alchikh saying something prejudicial to Henry was sufficient to warrant an order that Henry be tried separately from Swansson. As her Honour put it: There was an affidavit before me from Ms Armstrong of the DPP attaching statements and transcript of evidence previously give by Mr Alchikh, in which he had said that he had told the police he could implicate Mr Henry, whom he knew as Frank Moore, which on the Crown case is a false name used by Mr Henry to enter Australia on a false travel document, that Mr Henry gave him money in large quantities of cash, which were to be transferred to Mr King in England. Clearly those things would be prejudicial if they were given in evidence by Mr Alchikh in a trial involving Mr Henry. … It seems that what Mr Henry, through his counsel, fears is that Mr Alchikh may be something of a loose cannon and that he may say something which may give rise to a need for an application to discharge the jury. While I accept the Crown's undertaking that it will not seek to cross-examine Mr Alchikh about Mr Henry and that it would object if Mr Alchikh gave any evidence against Mr Henry, that in my view does not deal with the risk of Mr Alchikh being a loose cannon. With respect to all counsel involved they cannot necessarily control Mr Alchikh or what he will say and I think there is a very real risk, as opposed to a remote risk, given what Mr Alchikh has said in the past about Mr Henry, that if Mr Henry were tried with Mr Swansson that Mr Alchikh could give evidence highly prejudicial to Mr Henry, which would be avoided if Mr Henry and Mr Swansson were not tried together. I think that is a stronger ground for Mr Henry and Mr Swansson having their trials separated than the argument put on behalf of Mr Swansson that the Crown case against the persons in the conspiracy charge is stronger against him than the Crown case against Mr Swansson alone. 21 Under cover of Ground 1(b) the Crown contends that it was not open to the judge on the evidence to come to that conclusion. Indeed, as the Crown would have it, there is not even a remote possibility that Henry's case would be prejudiced. Contrary to the judge's reasoning, it was submitted, the assertion that Alchikh told police that he could 'implicate' Henry is not something which could be given in evidence - it was simply an assertion; the fact that Henry used the false name of 'Frank Moore' is something which the Crown proposes to prove aliunde, by means of Henry's admission that he used that false name; and the fact that Henry gave Alchikh money in large quantities of cash will be proved by evidence of telephone intercepts between King and Henry. 22 At first sight there appeared to me to be something in that contention. Given what the Crown now says about its ability and intention to prove Henry's use of the false name 'Frank Moore' and the receipt of large amounts of cash, one might doubt that anything which Alchikh could say about Henry's involvement would be any more prejudicial to Henry than would otherwise be in evidence. Additionally, as was noted in the course of the Crown's oral argument, the evidence which Alchikh gave on the last occasion about the receipt of money was, from the Crown's perspective, tentative at best: at one point in his evidence he deposed, contrary to the Crown case, that the money was not for drugs but for another business (See T950.25 –T951.13 (AB 106-107) and T 953,15 (AB 109)). 23 It is true, as the judge observed, that Alchikh told police in his statement of 13 August 2004 and in his sworn affidavits in the extradition proceedings relating to King and Salhani, that King was the principal of the syndicate, Henry was his Australian second-in-command and Gravett and Salhani, Hands, Warner, Saxby and Cerisola were all party to the conspiracy. It is conceivable that, if details of that kind were to surface in the course of the trial, they could add 'immeasurably' to the case against Henry. It is also true, as the judge in effect said, that the possibility of a witness misbehaving cannot be excluded. But it was not suggested that there is anything in the way in which Alchikh gave evidence in the previous trial or on other occasions that should excite concerns about the way in which he is likely to behave in the coming trial. Thus I was at first inclined to the view that anything which Alchikh might say about Henry's involvement could be excluded as irrelevant in the case against Swansson and that it would be possible to confine Alchikh accordingly to the evidence which it is proposed he give in exoneration of Swansson. 24 On further reflection, however, I do not think that one can at this stage exclude the possibility that something of what Alchikh told the police about the conspiracy and of Henry's involvement in it may be admissible in Swansson's defence - in order perhaps to demonstrate the depth and completeness of the admissions which Alchikh made to police and thus to imply that what he says about Swansson is equally deep and complete (See and compare R v Su [2003] VSC 306; (2003) 142 A Crim R 379). Another possibility, which was advanced by counsel for Swansson in the course of oral argument, is that he will seek to lead those details from Alchikh in order to demonstrate that there was a detailed criminal enterprise in myriad aspects of which Swansson plainly never took part. If so, it would not be sufficient to exclude the evidence that it might be prejudicial to Henry. Subject to the s 135 discretion, a trial judge cannot exclude evidence favourable to one accused on the ground that it might be prejudicial to another (R v Gibb and McKenzie [1983] 2 VR 155, 171; Lui Mie-Lin v The Queen [1989] 1 AC 288; cf. R v Darrington and McGauley [1980] VR 353, 384–385), and when it comes to contrasting probative value against prejudice for the purposes of s 135, it is of course prejudice to the accused, not a co-accused, which must be borne in mind. 25 It is also well to remember that a trial judge is usually in a better position to assess the likely course of evidence than an appellate court and as part of that to assess his or her own capacity to control proceedings when dealing with objectionable evidence and problematic witnesses. Within reasonable bounds, it is not for this court to substitute its own perception of how a trial should be conducted for a trial judge's assessment of the way in which the course of evidence is likely to turn out. Especially is that so in a case like this in which there have already been several problematic trials. In my view, the judge was not wrong to approach the matter as one which warranted an additional degree of circumspection. 26 Finally, on this point, and perhaps most importantly, it is necessary to bear steadily in mind that an appeal under s 5F is not a rehearing. As this Court has held repeatedly, a trial judge's findings of fact and exercise of discretion may only be attacked where error is involved (R v BWM (1997) 91 A Crim R 260, 265-266; R v Matovski (1989) 15 NSWLR 720, 723). Where, as here, one is concerned with the exercise of discretion, it is plainly not enough to warrant appellate interference that the judges of the appellant court may consider that they would have taken a different course to the primary judge. It must first be demonstrated that the primary judge has acted upon a wrong principle, or taken into account extraneous matters, or made a mistake of fact or failed to take into account some material consideration (House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-5). 27 In the result, and despite my initial misgivings as to the risk of any prejudice to Henry, I am not satisfied that error of the kind identified in Ground 1(b) has been established. Accordingly, I reject that ground. Ground 2 28 I turn to Ground 2. When narrating the history of the matter at the outset of her ruling, the judge said this: These accused were previously before Woods DCJ of this court in a trial in 2005 and the first issue which arises in respect of Mr Swansson's application is whether the decision made by Woods DCJ in that trial to sever the trial of Mr Swansson and another person, Mr Alkarim who is not on this indictment, needs to be revisited or whether that decision stands. The submission was made by Mr Hogan, counsel for Mr Swansson, that that order should stand, that there has not been any change of circumstances which would cause that order of Woods DCJ to be revisited. The Crown made a submission that many circumstances have changed, including that since then Mr Alkchikh has given evidence, has been sentenced, that it is known what Mr Alchikh will say, all of which were matters which his Honour Woods DCJ took into account in his judgment. But the Crown says fundamentally the most important thing which has changed is that the Court of Criminal Appeal held that the trial in which Woods DCJ made that decision or ruling was a nullity or not held according to law because the Crow had presented a number of indictments against a number of accuse in the one trial. 29 The Crown's argument in support of Ground 2 is that the judge thereby erred in holding that Judge Woods had taken into account that Alchikh had been sentenced for his part in the offence, and after being sentenced had given evidence favourable to Swansson, and therefore that there was some certainty as to the evidence he might give in the forthcoming trial. Counsel for the Crown submitted that it is plain that Judge Woods could not have taken those matters into account because none of them occurred until after his Honour made the order for separate trials, and that the judge's misunderstanding of that fact in this case had inflated her Honour's perception of the possible prejudice to Henry of the evidence which Alchikh might give against him if called to give evidence on behalf of Swansson. 30 I reject that argument. In my view the judge made no error of the kind alleged. Read in the context of the whole of the passage of the ruling to which I have referred, it is obvious that what her Honour meant by the words 'all of which were matters which his Honour Woods DCJ took into account in his judgment' is that what Judge Woods took into account at the time of his ruling was that Alchikh had not been sentenced or given evidence and therefore that there was no certainty to what he would say. 31 In case it matters, I add that I doubt that the point would be of any significance in any event. As it appears to me, the judge decided herself that the possibility of prejudice to Henry was such as to warrant an order for separate trials. Thus, whatever her Honour may have thought about the reasoning of Judge Woods was really by the by. It is true that her Honour said that she regarded Judge Wood's ruling as persuasive. But there was no error involved in taking that view of it. Even if that there had been some changes since the ruling was published, Judge Wood's decision was still something to which her Honour could properly have regard in coming to the conclusion that she did. Indeed it would have been surprising if her Honour had not taken it into account. Ground 3 32 I turn to Ground 3. As already noted, Henry and Gravett are charged with conspiring with each other and with others to import prohibited drugs. Gravett's application for a trial separate from Henry was based on an affidavit sworn by his solicitor, Mr Cummins, concerning the fact that a substantial amount of the evidence which the Crown proposes to adduce at the trial consists of intercepts of telephone conversations, many of which involved Henry and King but not Gravett. The affidavit recorded that, at the previous trial, Henry had given evidence in which he sought to explain the conversations with King as relating to a criminal enterprise for the importation of counterfeit sunglasses and handbags, in which he implicated Gravett by reason of being involved in one of those conversations. Gravett elected not to give evidence and it is said that he proposes to adopt the same course at the coming trial. 33 The judge held that the combination of the prejudicial effect of that evidence coupled with the effect upon the jury of seeing Henry give evidence and Gravett electing not to do so, was sufficient to warrant that he be tried separately from Henry. As her Honour put it: it would ordinarily not be permitted that evidence of an accused person's involvement in other alleged criminal activities, which he does not choose to give evidence about, would be admitted in evidence against him at his trial. In the situation where Mr Gravett chooses to not give evidence that he was involved in the importation of allegedly counterfeit items rather than the importation of drugs, then it seems to me to be prejudicial for him that a co-accused gives evidence that he was involved in that other criminal activity and highlights the fact that he has not given evidence. Even if Mr Henry's counsel were not to make any comment, then an observant jury would likely notice the difference between one co-accused giving evidence and one not. Now, I accept that that commonly happens when two accused persons are tried together. But I think given the combination of the one accused electing to give evidence and the other choosing to exercise his right to silence and the prejudicial evidence of other criminality being given by a co-accused, that that is evidence which is prejudicial to Mr Gravett and not admissible against him in terms of the evidence of other alleged criminality. For that reason it is my view that Mr Gravett should be tried separately from Mr Henry. 34 The gist of the Crown's argument under Ground 3 is that what was there said was in error because it was not open to the judge to conclude that evidence of telephone call intercepts between Henry and King in which the accused was not involved was inadmissible against Gravett. In the alternative it was submitted that the judge had erred in failing to consider the Crown's submission that evidence of telephone call intercepts admissible against Gravett implicated him in other illegal activity and that at the previous trial Gravett had not sought to cross-examine Henry about those matters. In the further alternative, it was said that, if the evidence were not admissible against Gravett, any prejudice could be dealt with adequately by directions to the jury. 35 In my view, there is force in those submissions. In the way in which the Crown now intends to put its case against Henry and Gravett, the evidence of telephone calls between Henry and King to which Gravett was not party will be admissible against Gravett. In the end, so much was properly conceded by counsel for Gravett in the course of oral argument. Contrary, therefore, to the way in which the judge approached the matter, it is clear that there will be evidence before the jury which will to some extent tend to implicate Gravett in the activities the subject of those conversations. It is true that the evidence which Henry is likely to give will be that the conversations were to do with an illegal enterprise for the importation of counterfeit sunglasses and handbags, rather than drugs. It is also true that, if that evidence is given, it will have the capacity to implicate Gravett in an illegal enterprise for the importation of counterfeit sunglasses and handbags. In that sense, it has the capacity to disclose that Henry was involved in criminal activity other than that with which he is charged. But with respect to the judge, it seems to me that the possibility that Gravett was engaged in such an enterprise as opposed to one for the importation of drugs could only be of assistance to Gravett's defence or, at worst, that the gravity of such criminal activity when compared to the offence with which he is charged is so relatively innocuous that any resulting prejudice to Gravett could readily be dealt with by appropriate directions. 36 I take a similar view about such if any prejudice as may be involved in the jury noting the difference between Henry's decision to give evidence and Gravett's decision to remain in the dock. It is the sort of thing which is commonplace in criminal trials for conspiracy or otherwise in which there are multiple accused and, as is usually the case, I should think that it could to be dealt with adequately by appropriate directions. 37 In so saying, I am of course conscious of the need to avoid transgressing upon a trial judge's exercise of discretion simply on the basis that I take a different view as to the manner in which it should be exercised. But it seems to me that the difference here is that the judge apparently failed to take into account the evidence of telephone calls between King and Henry to which Gravett was not party but which is unarguably admissible against Gravett, and thus to some extent may implicate him whatever criminal or other activity was the subject of those discussions. In my view, that amounts to an error which vitiates the exercise of discretion and creates a need for it to be exercised afresh. On that basis, I would uphold Ground 3. Ground 4 38 Under Ground 4, the Crown complains that there was no basis for an order for separate trials of Swansson and Gravett. In counsel's submission, there was no evidence in support of the order. Nor is there anything in the judge's ruling to explain why her Honour considered it to be necessary to make the order, apart from the conclusory observation that each of the applicants had brought themselves within the Middis criteria. 39 Once again, it appears to me that there is some force in the Crown's submission. So far as I can see, there is nothing in the judge's ruling to explain her Honour's reasons for ordering that Gravett be tried separately from Swansson, and counsel for the respondents did not suggest that there was anything which otherwise supports the making of such an order. 40 In the end, however, I doubt that it makes any difference. Since (for the reasons already given) I am not persuaded that the judge erred in ordering that Swansson be tried separately from Henry, I take the view that it will be necessary for there be at least two trials. And since, in that event, Swansson would need to be tried separately from Henry, it strikes me that the most appropriate orders to make would be that Gravett and Henry to be tried together and that Swansson be tried alone. Conclusion and orders 41 It follows that I would allow the appeal in part. I would set aside the order below. In lieu thereof I would order that Mr Swansson be tried separately and apart from Mr Henry and Mr Gravett but that, subject to further order, that Mr Henry and Mr Gravett be tried together. 42 SIMPSON J: I agree with Nettle AJA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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