Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Trotter v R [2016] NSWCCA 57 Hearing dates: 16 March 2016 Decision date: 19 April 2016 Before: Beazley P; Johnson J; Harrison J Decision: (1) Leave to appeal allowed; (2) Appeal dismissed. Catchwords: CRIMINAL LAW – joint criminal enterprise – limited evidence against applicant – whether separate trial PROCEDURE – joint trials – limited evidence against applicant as compared to that against co-accused – whether quantity of evidence prejudicial – whether separate trial Legislation Cited: Criminal Procedure Act 1986 (NSW) Drug Misuse And Trafficking Act 1985 (NSW) Cases Cited: DAO v R [2011] NSWCCA 63 DSJ v R; NS v R [2014] NSWCCA 77 Fattal v R [2006] NSWCCA 359 House v The King [1936] HCA 40; 55 CLR 499 Madubuko, Henry Ugo v R [2011] NSWCCA 135 Pham v Regina [2006] NSWCCA 3 R v Al Khair (unreported, NSW Court of Criminal Appeal, 20 June 1994 R v Baartman (unreported, NSW Court of Criminal Appeal, 6 October 1994) R v Chami; R v Sheikh [2002] NSWCCA 136; 128 A Crim R 428 R v Domican and Drummond (No 2) (1990) 46 A Crim R 408 R v Middis (unreported, NSW Supreme Court, 27 March 1991) R v Pham [2004] NSWCCA 190 Symss v The Queen [2003] NSWCCA 77 Webb & Hay v The Queen [1994] HCA 30; 181 CLR 41 Category: Principal judgment Parties: Erin Trotter (Applicant) Regina (Respondent) Representation: Counsel: Mr G Smith SC (Applicant) Mr E Balodis (Respondent) Solicitors: Jeffreys Lawyers (Applicant) Office of the Director of Public Prosecutions NSW (Respondent) File Number(s): CCA 2014/80329 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 20 October 2015 Before: Lakatos SC DCJ File Number(s): 2014/80329 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant is charged with one count of knowingly taking part in the supply of cocaine contrary to the Drug Misuse And Trafficking Act 1985 (NSW), s 25(1), being count 8 of an indictment comprising 18 counts against six accused. She sought leave to appeal from an interlocutory decision of Lakatos SC DCJ in which his Honour refused her application for a separate trial pursuant to the Criminal Procedure Act 1986 (NSW), s 21(2). The Crown alleges that the applicant was involved in a joint criminal enterprise with three other accused including her husband, James Trotter, to supply cocaine. Separately, the Crown alleges the existence of a joint criminal enterprise to supply heroin involving four of the other accused. No involvement by the applicant in the supply of heroin is alleged. By count 8 on the indictment, the Crown contends that the applicant knowingly took part in the supply of approximately 1.5 g of cocaine on 24 January 2014. The evidence proposed to be adduced to support that contention comprises intercepted phone and SMS conversations between James Trotter and the purchaser and between James Trotter and the applicant. The applicant's case is that she was an innocent agent for her husband in the transaction. Apart from the intercepts from 24 January 2014, which were said to be likely to take up about 30 minutes of a 5 or 6 week trial, there is no evidence directly implicating the applicant in the joint criminal enterprise to supply cocaine. However, the Crown contended that other evidence relating to that enterprise, including other phone intercept evidence and evidence of drugs and other items found in searches of the applicant's premises and elsewhere, are relevant to proving the applicant's knowing participation in the offence with which she is charged. The applicant contended that the trial judge's discretion miscarried in refusing to order that the applicant be tried separately. Specifically, she contended that his Honour erred by failing to have regard to a text message which was said to weigh against the proposition that the applicant was knowingly involved in the supply of cocaine and thus in favour of the granting of a separate trial; and that he had failed to turn his mind to the principles of joint criminal enterprise and the evidence required to satisfy them. The Court held: (1) It is clear from his Honour's reasons that he had regard to the terms of the text message sent on 24 January 2014. [50] (2) There was no error in his Honour's approach to the material upon which the Crown proposed to rely to establish the joint criminal enterprise and the applicant's involvement in it. [50] (3) In order to prove its charge against the applicant, the Crown will need to adduce evidence beyond that which directly relates to her. For that reason, the evidence relevant to the alleged joint criminal enterprise to supply cocaine will not have any substantial prejudicial effect on the applicant's case. [53]-[54] (4) The mere fact that the trial will involve evidence unrelated to the applicant, including the evidence relating to the alleged joint enterprise to supply heroin, is not sufficient to demonstrate a miscarriage of justice if a separate trial is not ordered. The applicant did not demonstrate that the evidence to be adduced in respect of that joint enterprise will be overly lengthy or prejudicial to her. Further, the trial judge will be able to give directions which draw a clear distinction between the two joint criminal enterprises. [56]-[58] R v Chami; R v Sheikh [2002] NSWCCA 136; 128 A Crim R 428, distinguished (5) His Honour did not err in refusing to order a separate trial. [51]-[52] Judgment 1. THE COURT: The applicant, Erin Trotter, seeks leave to appeal from an interlocutory decision of Lakatos SC DCJ in which his Honour refused her application for a separate trial pursuant to the Criminal Procedure Act 1986 (NSW), s 21(2). 2. The applicant is charged with one count of knowingly taking part in the supply of cocaine contrary to the Drug Misuse And Trafficking Act 1985 (NSW), s 25(1), being count 8 of an indictment comprising 18 counts against six accused. A joint trial is presently set down to be heard in July 2016. 3. The other accused on the indictment are the applicant's husband, James Trotter; her father-in-law, William Trotter; her mother-in-law, Sharon Trotter; her brother-in-law, Trent Trotter; and David Bowman, who is Sharon Trotter's brother. The Crown case against the applicant 1. The Crown alleges that the applicant was involved in a joint criminal enterprise with William, James and Trent Trotter to supply cocaine. Separately, the Crown alleges the existence of a joint criminal enterprise to supply heroin. The parties to that enterprise are said to be Sharon, Trent and James Trotter and David Bowman. No involvement by the applicant in the supply of heroin is alleged. 2. The Crown contends that the structure of the joint enterprise involving the applicant was that orders for cocaine would be communicated to James or Trent Trotter by telephone or SMS from another participant in the joint enterprise, Jason Haidar. Mr Haidar would collect the drug either from the Mascot premises of the applicant and James Trotter or from the Rosebery premises of William Trotter. Mr Haidar is deceased. 3. By count 8 on the indictment, the Crown contends that the applicant knowingly took part in the supply of approximately 1.5 g of cocaine on 24 January 2014 at Mascot. The evidence proposed to be adduced to support the applicant's participation in that transaction includes intercepted SMS messages and telephone conversations between James Trotter and Jason Haidar and between James Trotter and the applicant. Those intercepts comprise the only direct evidence implicating the applicant in the joint enterprise, and it is necessary to set them out in order to understand the submissions of both the applicant and the Crown. 4. The Crown alleges that, on 24 January 2014, Mr Haidar made an arrangement by SMS with James Trotter for the supply of cocaine. The following exchange occurred in those messages: "[16:14, Jason Haidar] Was gonna come and see ya … MSG me when ya home … [16:28, Jason Haidar] … I need a full length if [sic] cooper and half length for work that sweet? [16:29 James Trotter] Only got two lengths there bra n she doesn't know what's doin" 1. Shortly after that SMS exchange, at 16.31, James Trotter called the applicant. The following conversation was intercepted: "[James Trotter] Erin [Applicant] Hi [James Trotter] Alright, listen I need you to go into my, into our room [Applicant] Mmm [James Trotter] Um, grab out, in my um, my G-Star jacket [Applicant] Yeah [James Trotter] In the pocket, grab out them two things, … [James Trotter] You got it? [Applicant] Yeah … [James Trotter] Now, those 2 things that you got in your hands I need you to split 1 and there should be a spare thing in that same pocket that you grabbed them out of. [Applicant] So … [James Trotter] So split 1 and put the other bit back. [Applicant] Ok [James Trotter] Alright now, umm, my mates gunna come past, I'll just tell him to call me when he's downstairs, just let him in, it's Jason, the bloke who was at our house on Sunday. [Applicant] I don't feel comfortable with that, I don't know who that is. [James Trotter] Baby he's harmless, I've known him all my life. [Applicant] Alright." 1. At 16.44, Mr Haidar sent a text to James Trotter to let him know he was at the Mascot premises. James Trotter again called the applicant, as follows: "[James Trotter] Babe, can you grab, meet him down at the security door please [Applicant] Umm, so how, what am I giving [James Trotter] Just the one and the half [Applicant] The one and the … ok [James Trotter] Alright bye [Applicant] Bye" 1. As previously indicated, the only direct evidence in relation to the applicant are the telephone intercepts from 24 January 2014. The Crown case as to the joint enterprise to supply cocaine otherwise relies on further intercepts between William, James and Trent Trotter on four additional dates in January and February 2014, none of which directly relate to or refer to the applicant; the location of 1.01 g of cocaine found on the person of Mr Haidar when he was searched by police on 11 February 2014; and the location of 6.23 grams of cocaine found at the Mascot premises, in a jacket similar to that described in the intercepted phone conversations, on 21 February 2015. 2. The applicant has not been charged with any offence in relation to the cocaine found in the execution of the search warrant at the Mascot premises where the applicant and James Trotter resided. However, the Crown's submissions on the question of separate trials below state that the Crown intends to rely upon finding the cocaine in the Mascot premises in order to prove the applicant's participation in the joint criminal enterprise. It is necessary to briefly outline the evidence in relation to that search. 3. The applicant was present with her newborn baby and a female friend during the search. James Trotter, who was not present, was advised by police that the search was being conducted. He was subsequently observed driving well in excess of the speed limit before running a red light in Mascot. He was stopped due to his manner of driving and then arrested. 4. A black "G-Star" brand jacket, which the Crown alleges is the jacket referred to in the conversation set out above at [8], was found in the main bedroom of the Mascot premises. In the pockets of the jacket were plastic bags containing what was found to be 6.23 g of cocaine and a quantity of heroin, as well as empty plastic bags, a pocket scale and a plastic spoon. James Trotter was charged with a deemed supply offence in relation to the cocaine and a possession offence in relation to the heroin. 5. Other drugs were also found in the main bedroom, namely, 15.74 g of Alprazolam (Xanax) and 0.69 g of MDMA, both found in plastic bags in the pockets of a different jacket, and 4.19 g of 1,4-Butanediol, found under the bed. James Trotter was charged with possession offences in relation to each of those substances. In addition, he was charged with a goods in custody offence in relation to $1,950 in Australian currency found in the wardrobe in the main bedroom. 6. During the course of the hearing in this Court, there was discussion about what aspects of the evidence, if any, relating to the joint enterprise to supply cocaine which does not directly implicate the applicant will be admissible as against her. We will return to that issue below, but pause to observe that any question of admissibility of the evidence will be a matter for determination by the trial judge. 7. Evidence will also be adduced at the joint trial relating to the joint enterprise to supply heroin. It was not suggested that that evidence would be admissible as against the applicant. Legal principles relating to joint trials 1. The Criminal Procedure Act, s 29 provides for hearings involving multiple accused persons, as follows: "29 When more than one offence may be heard at the same time … (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances: (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice." 1. The applicant sought an order under s 21(2). That section provides: "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. The determination of whether to order separate trials was described by Allsop P in DAO v R [2011] NSWCCA 63 at [77] as: "… a procedural question involving a true discretion in the sense of a power involving a choice for or in respect of its exercise even though the condition for its exercise may have been established." 1. Being a discretionary decision, error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 must be demonstrated for the applicant to be successful: see DAO at [78] per Allsop P; DSJ v R; NS v R [2014] NSWCCA 77 at [61] per Gleeson JA, with whom Hidden J agreed. Thus it must be shown that the trial judge, in the exercise of his discretion, erred in acting on a wrong principle; allowed extraneous or irrelevant matters to guide or affect him; mistook the facts; failed to take into account some material consideration; or that the result is unreasonable or plainly unjust such that the Court may infer a failure to properly exercise the discretion. 2. The rationale for joint trials, and the circumstances in which applications for separate trials will be granted, were considered by the High Court in Webb & Hay v The Queen [1994] HCA 30; 181 CLR 41, a South Australian murder case in which an application for a separate trial by the second appellant, Ms Hay, had been refused by the trial judge. 3. Toohey J, with whom Mason CJ and McHugh J agreed, held, at 88-89: "… 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. 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. 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 … 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." (citations omitted) 1. In R v Domican and Drummond (No 2) (1990) 46 A Crim R 408 at 423, Kirby ACJ (Campbell and Studdert JJ agreeing) stated as follows: "The principle to be applied is not in doubt. It is that separate trials should be granted if to refuse them may result in a miscarriage of justice: see Annakin (1988) 37 A Crim R 131 at 138. Normally, where a common purpose is alleged (as in the count charging conspiracy) the persons involved should be jointly tried: Merritt (1985) 19 A Crim R 360 at 364-365. In such circumstances, separate trials should only be ordered where the evidence against each of the accused is "significantly different": Darby (1982) 148 CLR 668 at 678. The mere fact that some evidence against one of the accused may be admitted in a joint trial which would be inadmissible against the other in a separate trial does not, of itself, warrant the separate trial of the accused or the setting aside of a conviction entered against one or both of them: Guldur (1986) 8 NSWLR 12 at 16; 25 A Crim R 271 at 275." 1. The circumstances in which a separate trial will be ordered were considered by Hunt J in R v Middis (unreported, NSW Supreme Court, 27 March 1991), at 4, as follows: "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." 1. Hunt J elaborated on the principle, as follows, at 5: "… 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 … Obviously enough, all manner of prejudice may be surmised which, if it arises, would not result in such positive injustice. In my opinion, an applicant for a separate trial must demonstrate that there is a real risk (as opposed to a remote possibility) that there will arise in a joint trial prejudice of the type which - if it arises would result in positive injustice to him." 1. Hunt J's formulation has been frequently approved in this Court: see R v Baartman (unreported, NSW Court of Criminal Appeal, 6 October 1994); R v Chami; R v Sheikh [2002] NSWCCA 136; 128 A Crim R 428 at [12]; Symss v The Queen [2003] NSWCCA 77 at [69]; R v Pham [2004] NSWCCA 190 at [38]; Pham v Regina [2006] NSWCCA 3 at [10]; Madubuko, Henry Ugo v R [2011] NSWCCA 135 at [28]. 2. In Pham [2004] NSWCCA 190, Adams J, with whom Spigelman CJ agreed, expanded on Hunt J's formulation as follows: "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." See also Madubuko at [29]. 1. Both the applicant and the Crown placed some emphasis on Chami; Sheikh. That case concerned a trial on an indictment consisting of 19 charges relating to five gang rapes and to offences of perverting the course of justice. It was alleged that each of the applicants had been involved in one of the incidents. They sought leave to appeal against the refusal of the trial judge to order that they be tried individually. 2. The trial judge dealt with Sheikh's application for a separate trial on the basis that if the application were successful, charges against Sheikh and his co-accused in the counts relating to him would be heard jointly. It appeared that his Honour did not consider the possibility of a trial against Sheikh alone. Ipp AJA, with whom Bell J agreed, held that that was in error and that the Court, for that reason, was required to exercise the discretion afresh. His Honour determined that a separate trial in relation to Sheikh should be ordered. Ipp AJA's reasoning was as follows: "17 The central point made by [counsel for Sheikh] is that while Sheikh was involved in the first incident he was not involved in the others. Sheikh has been joined in an indictment which contains 19 counts, only two of which are in respect of him. None of the evidence that relates to the other 17 counts bears on Sheikh's guilt or otherwise in respect of the two charges he faces. The trial is likely to last some 12 weeks and involve some 70 witnesses. The charges against Sheikh should not take more than two weeks (and could take less) and will involve far fewer witnesses. 18 Essentially, the prejudice that is likely to be suffered by Sheikh were the trial not to be separated falls into two categories. The first, and most serious, is that evidence relating to sexual assaults and other sexual misconduct, inadmissible against him, would be led at the trial. 19 The conduct giving rise to the 19 counts on the indictment can only be described as brutal, cruel, callous and horrifying. The alleged offenders are all, or all but one, from the same ethnic group. The details of the offences are likely to arouse extremely hostile feelings against these persons. The common ethnicity of the offenders could well give rise to generalised feelings of disgust and anger. It is possible that the jury may be influenced by such feelings, brought about by the conduct of all the offenders, when considering their verdict in respect of the counts alleged against Sheikh. 20 It is true that the trial judge would no doubt give very careful and explicit directions warning the jury against allowing any such feelings to affect their judgment. But in the highly charged atmosphere of such a trial where there will be a mass of evidence of these appalling crimes, it may be difficult for a jury, with the best will in the world, to remain entirely objective. In summary, I think that there is a risk of guilt by association. … 22 I turn to another category of prejudice that, while relevant, is less important. The trial will be a very long one. As I have said, several weeks of the trial will involve evidence unrelated to Sheikh. It is arguably unfair to require him to bear the vast and unnecessary cost of legal representation that would be required in such a lengthy case when only such a small proportion of it involves the charges faced by him." 1. The Crown referred to R v Al Khair (unreported, NSW Court of Criminal Appeal, 20 June 1994), and Fattal v R [2006] NSWCCA 359 as authorities relating to evidence of phone conversations to which the accused was not a party. In each case, the relevance and therefore the admissibility of evidence of telephone intercepts not involving the applicant was in issue. 2. In Al Khair, Mrs Norhan Al Khair, her brother, her sister-in-law, and a fourth participant, were charged with a number of offences relating to the supply of heroin. The fourth participant pleaded guilty. Each of the other accused was found guilty in a joint trial and each appealed against conviction. On her appeal against conviction, Norhan Al Khair contended that the trial judge had erred in refusing her application for a separate trial. That ground could only succeed if a number of telephone intercept records had wrongly been admitted into evidence against her: see at 37. Norhan Al Khair submitted that the evidence was inadmissible as against her because, although she was referred to in them, she did not participate in any of the telephone calls. That submission was rejected. Priestley JA, with whom Gleeson CJ and Wood J agreed, held at 35: "This submission seems to me to miss the point of the evidence, or at least the point of an important aspect of it. The evidence could be taken by the jury as showing that a drug supply business was being carried on at the premises. That fact, if the jury accepted it as the fact, was relevant in the case against Mrs Norhan Al Khair, even although she [was not staying at the premises at the relevant time] because the jury were also entitled on the evidence, which showed a considerable intimacy between Mr R Al Khair and his sister Norhan, to conclude that if a drug business was being conducted from the premises when Mrs Norhan Al Khair went to stay there, then she knew of it, and this in turn was relevant to the question whether her anxiety about the arrival of Mrs El Ahmed was about the arrival of heroin for supply." 1. In Fattal, the appellant was tried for an offence of supplying a large commercial quantity of ecstasy. The Crown case was that Fattal participated in a joint criminal enterprise in relation to that supply by picking up the drugs in Sydney and attempting to take them to Brisbane, in the company of another man. Evidence was led of telephone intercepts to which the appellant was not a party but which made reference to his role in the enterprise. Sully J (McClellan CJ at CL and Hislop J agreeing) considered that the telephone intercepts were probative of the joint enterprise. His Honour held, at [42]: "It is, of course, the fact that the appellant was not a party to any of the conversations. There was, however, undisputed evidence in the Crown case that put the appellant at the actual handing over of the tablets to Forrest; and that put the appellant, very shortly thereafter, in a hotel room as a joint occupant overnight with Forrest of the room in anticipation of their joint flying to Queensland on the following day. Had the appellant not been present at Rockdale at the time of the supply to Forrest as agent for the Queensland buyers; and had there been no subsequent attempt at joint travel by him with Forrest to Queensland, then, absent any other evidence of things actually said or done by the appellant himself, the evidence of the contents of the conversations would have been admissible, in my opinion, in order to prove the relevant joint criminal enterprise, and in order to prove that the principals in the enterprise, who were conversing, were intending to make use of the appellant. Without more, the contents of the conversations could not have established that in fact the appellant participated to the intended extent in the particular joint criminal enterprise. That potential gap was filled, - or more precisely it was in my opinion open to the jury to find that it had been filled, - by the evidence, essentially undisputed, of relevant prior associations; of relevant presence; and of relevant subsequent conduct; all of which were consistent, to say the least, with participation as alleged in the supply charged." Primary judge's reasons 1. The primary judge, at the commencement of his reasons, appropriately referred to the totality of the charges on the indictment. This was necessary in order to put the charge against the applicant in context. His Honour next referred to the principles that governed the determination of an application for a separate trial and to Al Khair and Fattal. His Honour then referred in summary form to the evidence by reference to the revised Crown case statement. 2. His Honour, after outlining the evidence intended to be adduced against the applicant, summarised the Crown's position as follows: "In short, the Crown contends that the large majority of the evidence establishes the joint criminal enterprise between the co-accused to supply heroin and cocaine. The specific evidence relevant to 24 January 2014, according to the Crown, evidences Erin Trotter's participation in that joint criminal enterprise. Accordingly, it is submitted that the evidence is relevant and admissible against Erin Trotter." 1. Strictly, his Honour is incorrect in this statement to the extent that he stated, or at least implied, that all the evidence relating to both joint criminal enterprises was relevant to the application. No complaint is made as to that overstatement and it is apparent from his Honour's reasons overall that this was a slip and did not reflect a finding that evidence in relation to the heroin was to be adduced against the applicant. 2. After referring to the telephone and SMS intercepts of 24 January 2014, his Honour noted that there was no other direct evidence against the applicant in relation to her involvement in the actual supply of or in a joint criminal enterprise to supply prohibited drugs. His Honour also referred to the applicant's submissions which emphasised the limited nature of the direct evidence against her and of the evidence directed to her involvement in a joint criminal enterprise; to her argument that no inference could be drawn from the evidence that she knew that cocaine or any other prohibited drug was involved; to the submission that the evidence against her was weaker than and different from the evidence against the other accused persons; and to the applicant's contention that there was a large volume of material proposed to be presented by the Crown that was not admissible against her but would be highly prejudicial to her. 3. His Honour accepted that there was "some merit" in the applicant's contention that the case against her was significantly weaker than that against the other accused. However, his Honour noted that, apart from the quantity of the evidence against the other accused, the applicant had failed to articulate a way in which that material would be prejudicial to her. His Honour considered that the applicant's contention that the evidence to be adduced at the joint trial that did not relate to her was 'overwhelming' evidence could go two ways in that: "… the comparative sparsity of evidence against [the applicant] may provide a powerful argument that the latter was not involved in any joint criminal enterprise or did not have the requisite knowledge." 1. In the result, his Honour considered: "Given that appropriate directions will be provided about admissible evidence to each accused, the jury will, I hope, be under no illusion of the weight of the evidence against the other co-accused as any legitimate part in their decision-making process so far as Erin Trotter is concerned." 1. His Honour further commented that the authorities to which he had referred supported the proposition that participation in a joint criminal enterprise could be proved by evidence that did not directly involve an accused person, in this case the applicant. His Honour concluded that the applicant had not established that there was a risk that the joint trial would result in a positive injustice to her. Submissions 1. The applicant's case is that she was an innocent agent for her husband James Trotter in the one transaction in relation to which she is charged. She submitted that the primary judge erred in failing to make reference to that part of the intercepted message from her husband to Jason Haidar that stated "she doesn't know what's doin'", which she contended supported her case and demonstrated the weakness of the Crown case that she was part of the larger joint criminal enterprise. In oral argument, when pressed to identify a ground on which it might be found that the trial judge erred in the exercise of his discretion, counsel for the applicant further submitted: "The ground is that he hasn't properly addressed his mind to the concept of joint criminal enterprise so far as the applicant is concerned." 1. The import of the applicant's submissions was that, having regard to its onus, the Crown needed to be able to point to evidence which implicated the applicant in a joint enterprise beyond the isolated event of which there was direct evidence. In the absence of being able to do so, she contended that she should be tried separately on the sole charge against her. 2. The applicant further contended that the trial judge failed to take into account that there was no evidence of the applicant's presence at or encouragement of the commission of any crime apart from that with which she is charged. Accordingly, there was a real risk that the case against her, which, without the other evidence upon which the Crown sought to rely, was weak, would thereby "be made immeasurably stronger by reason of the prejudicial material": see the third proposition stated in Middis, set out above. 3. In relation to the prejudice to her if she was tried jointly with the other co-accused, the applicant contended primarily that the jury would be overwhelmed by the quantity of evidence relating to the other accused and would be unable to put it to one side in considering the charge against the applicant: see Chami; Sheikh at [17]. In that context, the applicant pointed out that the evidence directly against her would take about 30 minutes in a 5 or 6 week trial. 4. The applicant also contended that as the applicant is the wife of one of the "main players" in the alleged joint enterprise, it would be very difficult, despite directions, for a jury to disregard the evidence in relation to him which was not admissible against her. 5. The Crown did not contest that the direct evidence against the applicant was confined to the intercepted messages on 24 January 2014. However, the Crown submitted that certain of the evidence not directly relating to the applicant but relating to the joint enterprise would be admissible as against her. In particular, the Crown contended that, in order to prove that the applicant was knowingly taking part in the supply of cocaine, the Crown would need to lead evidence of previous and subsequent occasions on which James Trotter supplied Jason Haidar with cocaine as well as evidence of the cocaine found in the Mascot premises. The additional evidence would also include telephone conversations in which James Trotter is alleged to have arranged the supply of drugs. In turn, those telephone conversations would introduce the relationship of James with his brother Trent and his father William. The Crown informed his Honour that it also intended to adduce evidence of the arrest of Mr Haidar and the location of cocaine in his possession on 11 February 2014, allegedly supplied to him by James Trotter on that day. 6. The Crown submitted that this evidence was relevant to the charge against the applicant and that the Crown would seek to adduce it regardless of whether she was tried together with the other accused or separately. However, as the evidence was common to the charges against the other persons alleged to be involved in the joint criminal enterprise to supply cocaine, a joint trial was appropriate: see the Criminal Procedure Act, s 29(2). 7. The Crown further submitted that as the evidence of the telephone intercepts that is alleged to directly implicate the applicant also forms the basis of a charge against James Trotter there was a risk of different and therefore inconsistent verdicts should there be separate trials. 8. As noted above, the Crown did not suggest that the evidence relating to the joint criminal enterprise to supply heroin would be admissible as against the applicant. However, it disputed that the mere quantity of evidence involved was relevantly prejudicial. Consideration 1. It must be remembered that the question whether to order a separate trial involves a discretionary determination, which only invites appellate intervention if error in the House v The King sense is established. The two specific errors identified by the applicant were a failure to take into account the terms of the SMS message from James Trotter to Jason Haidar, referred to above at [40], and a failure to address the matter of joint criminal enterprise from the applicant's position. 2. In our opinion, neither error has been made out. Although the primary judge did not set out the terms of the SMS message, his Honour referred to the Crown case as set out in the revised Crown case statement. In dealing with the Crown case against the applicant, his Honour referred to the "intercept material on 24 January 2014". It could not be contended that his Honour referred to that material without intending to refer to its content. As for the second error, his Honour expressly addressed the material upon which the Crown proposed to rely to establish the joint criminal enterprise and the applicant's involvement in it. 3. The applicant has failed to demonstrate any error in the primary judge's discretionary determination. 4. We also do not consider, having had regard to the evidence that the Crown proposes to adduce against the applicant, that the failure to order a separate trial will result in a miscarriage of justice in the sense explained in the authorities to which we have referred. 5. There is no doubt, as the applicant submitted, that the direct evidence against her is within a very short compass. If that was the only evidence that was sought to be adduced by the Crown against her, there may have been good reason to accede to her application. However, we are satisfied that the Crown has demonstrated that, in order to prove its case on the charge against her, it will be necessary to adduce evidence which goes beyond the telephone intercepts between the applicant and her husband and between James Trotter and Jason Haidar on 24 January 2014. That additional evidence will be necessary, inter alia, to prove the nature of the substance that the applicant supplied to Mr Haidar. The additional evidence will also be relevant to the joint criminal enterprise that the Crown seeks to prove, not only against the applicant but against the other accused insofar as the joint criminal enterprise relates to the supply of cocaine: see the discussion above in Al Khair and Fattal. In that respect, it is relevant that the offences, including that with which the applicant is charged, arise out of a series of transactions between the same persons in respect of the same prohibited substance. 6. Accordingly, contrary to the applicant's submission, the evidence sought to be adduced against her is more extensive than the limited evidence of the telephone intercepts on 24 January 2014. For that reason, the evidence relevant to the joint criminal enterprise to supply cocaine will not have any substantial prejudicial effect. In that regard, it is not sufficient that the evidence will be against her interest. 7. As indicated, it will be a matter for the trial judge to rule upon the admissibility of the evidence at trial, including as against which accused the evidence adduced is admissible. However, for the reasons expressed, the evidence upon which the Crown seeks to rely is likely to be relevant in part to prove the offence of supply with which the applicant is charged and in other respects to prove the joint criminal enterprise alleged by the Crown. As such, the applicant has failed to demonstrate that there is likely to be any miscarriage of justice if she is tried jointly with the other accused charged in relation to the joint criminal enterprise to supply cocaine. 8. The applicant is not alleged to be part of the joint criminal enterprise relating to the supply of heroin. To that extent, she will be involved in a trial in respect of which there will be a body of evidence which is not sought to be adduced against her. However, there was no application to sever the counts relating to the supply of heroin. The mere fact that there will be evidence unrelated to her does not of itself establish that there will be a miscarriage of justice if a separate trial is not ordered. 9. We also do not accept the applicant's submission that the present case is analogous to Chami; Sheikh. The evidence in that case was particularly prejudicial because of its emotive nature and because of the risk that the jury would come to generalisations by reference to the common ethnicity of the accused. That is not the present case. To the extent that Chami; Sheikh is authority for the proposition that there may be prejudice in the cost of a lengthy trial on irrelevant issues, it also makes clear that that factor is of lesser importance and the applicant has not established that that aspect of the trial that does not relate to her will be overly lengthy or prejudicial to her. 10. Further, in this case there is a clear distinction in the two joint criminal enterprises brought against the various accused persons, one involving cocaine and one involving heroin. It was not suggested that the evidence relating to the two alleged joint criminal enterprises overlapped or overlapped in any significant way. The Court considers that this is a case where the trial judge would clearly be able to give directions to the jury appropriately dealing with any potential prejudice that might arise from the commonality of personnel involved in each enterprise. Conclusion 1. The issues raised by the applicant were of some substance and leave to appeal should be allowed, but the appeal should be dismissed. ********** Amendments 17 May 2017 - Publication restriction removed – judgment republished 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: 17 May 2017