R v Syed Basri, Henry Ugo Madubuko, Lokman Mohammed and Ifeanyi Fidel Okonkwo [2008] NSWDC 223

New South Wales District Court

CITATION: R v Syed Basri, Henry Ugo Madubuko, Lokman Mohammed and Ifeanyi Fidel Okonkwo [2008] NSWDC 223

HEARING DATE(S): 08-10-08 to 09-10-08

JUDGMENT DATE: 13 October 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

Application for separate trial by Mohammed: Accused Mohammed be tried separately. Severence Application by Madubuko - Count 4 severed from indictment.. DECISION:

further order that Henry Madubuko be tried on that charge at a time and place when Lockman Mohammed is tried upon the first count in the said indictment.

CATCHWORDS: Co-incidence ecidence - distinction between matterof circumstance and "related event" - traditional use of similar fact evidence equated to coincidence evidence - distinction between "related" event and "same" event. - Separate trial - reliance upon identical defence by both importers - absence of knowledge of presence of heroin in luggage - real risk of impermissible comparison of identical defences - functions of an indictment. - Severance application - difference in strength of Crown case on each count - more appropriate to be tried with alleged co-offender in specified unlawful importation.

LEGISLATION CITED: Evidence Act 1995 (Cwlth)

R v Maxwell John White [1999] NSWCCA 336 Perry v The Queen 1982 CLR 580 Sutton v The Queen (1984) 152 CLR 528 CASES CITED: R v Assim [1966] 2 QB 249 R v Annankin (1988)17 NSWLR 202 R v Janeceski (2005) 64 NSWLR 10 R v Middis unreported NSWSC 27 March 1991 per Hunt CJ at CL R v Baartman (unreported) NSWCCA 6 October 1994