R v Syed Basri, Saripah; Madubuko, Henry; Mohammed, Lokman and Okonkwo, Ifeanyi

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

Regina Saripah Zamrrut Binti Syed Basri PARTIES: Henry Ugo Madubuko Lokman Mohammed Ifeanyi Fidel Oknokwo

FILE NUMBER(S): 2008/11/0491; 2008/11/0498; 2008/11/0510; 2008/11/0556

Crown: D Jordan Defence for Syed Basri: S Russell COUNSEL: Defence for Madubuko: B Glennon Defence for Mohammed: F Coyne Defence for Okonkwo: C Watson

Syed Basri (Ms Basri), and Mohammed are each charged with importing a border control drug into Australia. In the case of Ms Basri the quantity alleged is a commercial quantity. In the case of Mohammed the quantity alleged is less than a commercial quantity. Madubuku (as his name appears on the indictment) and Okonwko are jointly charged with attempting to possess a commercial quantity of a border control drug, which had been unlawfully imported into Australia. This charge on the Crown case relates to their attempted receipt of the drug imported by M/s Basri. Madubuko is also charged with attempting to possess a marketable quantity of a border control drug, which had been unlawfully imported into Australia. This charge (on the crown case) relates to the importation alleged against Mohammed. All offences are said to have occurred on 25th February 2008 at Sydney.

The Crown proposes that all accused be tried together. The trial was scheduled to commence on Tuesday 7th October 2008. It was placed before me on 8th October. Prior to the trial commencing, the Crown served a Notice dated 24 September 2008 of its intention to lead what it described as coincidence evidence against all accused. Although Mr Russell of counsel appearing for M/s Basri objected to the late service of the Notice that objection was faintly pressed when made, and not otherwise argued in the course of events. No other defence counsel sought to challenge the Notice on the basis of its service date. All accused parties, however, argued that the Court should not permit the claimed coincidence evidence to be led as coincidence evidence, or at all in some cases.

By Notice of Motion filed 23rd September the accused Mohammed sought that the trial date of 7 October be vacated; that he not be tried with the other accused and that a separate trial be ordered in relation to his offence. Subsequent to argument, Dr Glennan, counsel for Madubuko, made an oral application, contingent upon my acceding to the orders sought in the Notice of Motion, to have the 4th count in the indictment severed (the attempt to possess a marketable quantity of heroin brought in by Mohammed) and have that charge tried together with the charge against Mohammed.

Thus it became necessary to spend the first and subsequent days of the first week of the trial debating these issues on the Voir Dire. Prior to the Voir Dire hearing commencing, each accused was arraigned and her and his "Not Guilty" pleas were received and entered upon the indictment.

The Crown case starts with the arrival of M/s Basri at the Kingsford Smith Airport. She had flown from India. She travelled from Deli to Mumbai internally. From Mumbai she travelled to Sydney via Singapore. By the time she had passed through Customs to collect her baggage Customs Officers had examined her bag. Concealed under the internal linings of the bag, behind the extendable handle frame was located a 3+ kilogram packet of admixture containing 1.8 kilograms of heroin. The package of contraband was flat, bound in brown masking tape, rectangular in shape, a slight A-frame shape to it. The bag's main compartment had been filled with multiple saris and other personal items.

Some 5½ hours later Mohammed arrived at the Sydney Kingsford Smith Airport. He had travelled from Deli to Sydney via Kuala Lumpur. His check-in bag was found to contain a similar package in terms of construction, concealed within his bag in a very similar fashion. Mohammed told Customs Officers that a friend gave him the bag, that he was unaware of its contents and he did not pack it. The packet itself was smaller, and the admixture found yielded 1.2 kilograms of heroin. The bags, although different colours and sizes, were both new and carried the same brand name.

By the time M/s Basri reached her bag, Australian Federal Police were waiting for her. She was arrested. There was a short interview with her. She denied knowledge of the illicit contents of the bag, but agreed to undertake a controlled delivery of the bag under the supervision of the AFP. She was told she was a "protected suspect". Items taken from her during a police search were returned to her. One was a mobile phone; another was US$1500. She was escorted to a Travelodge Hotel at Bankstown. During the time between her arrest and the delivery of the bag she received a number of phone calls, some from India. She delivered the bag to Madubuko and Okonkwo. They returned to a car, placed the bag in the boot and, with Okonkwo behind the wheel, drove away. Shortly after their attempted departure from the area the car was stopped and both were arrested. The arrest of Madubuko and Okonkwo occurred at approximately 7:30pm. After his arrest AFP discovered US$1,000 had been given to Madubuko by M/s Basri. On her account this was to purchase a ticket for her to return to her country of origin, Malaysia.

It is of significance to note Madubuko and Okonkwo were arrested prior to Australian Customs discovering heroin concealed in Mohammed's bag.

In the course of an interview given to police after the controlled delivery, M/s Basri stated she had looked for and found a job on the Internet which involved travelling to India from Malaysia, collecting sample sari material and taking the material to other countries such as Australia. On her account she travelled to India on 14 February 2008, met a woman called Gina. Her ticket to India had been paid for by a middleman who also supplied her with money and an Indian visa. She had met this unidentified man at a place called Jusco, in Kepong, which in turn is in Kuala Lumpur. Initially she stayed at a Delhi hotel, and subsequently with Gina. Gina's boyfriend was a Nigerian named Johnny. She and Gina shopped the local markets purchasing saris. M/s Basri's task was to give the Saris to Gina's brother in Australia. M/s Basri packed the saris into her bag. Johnny provided airline tickets to cover the journey from Delhi to Australia. He also gave her the US$1,500. He gave her the name and address of the Bankstown hotel, instructed her to catch a taxi to it, and told her that somebody would give her a ticket back to Malaysia. She then flew to Australia with the bag.

I pause to note Madubuko and Okonkwo are Nigerian.

M/s Basri told police Johnny had given her an AirTel SIM card. She also had her own local Malaysian SIM card. Johnny instructed her that she was not to contact Gina, but Gina would be contacting her when she got to Sydney and that she should delete all their numbers from her phone in India.

M/s Basri conceded to police she had met Mohammed at Jusco. He was one of her friend's husband. There is a photograph of him on her phone. She denied any connection between him and India. On the Crown case this was a meeting of the two couriers, although it is unclear to me whether the Crown means that this meeting was a deliberate meeting of them as potential couriers.

On the Crown case there were a number of features of its case against each of Ms Basri and Mohammed that it sought to rely upon as coincidence evidence. Both were Malaysian, resident in Malaya until a short time prior to her/his arrival in India. Before on-travelling to Australia, M/s Basri had left Malaya on 14th February and Mohammed on 21st February 2008. Neither appeared to have "planned" holidays to Australia. Air tickets for both, although independently purchased, were booked and visas granted, just prior to travel. Yet both made reference to holidays on their respective Immigration Entry Card as the purpose of their arrival in Australia.

There were similarities in the bags, concealment of the heroin in the bags, and packaging of the heroin. One bag contained 12 saris, the other, brought by Mohammed, had 15 t-shirts.

Both Ms Basri and Mohammed arrived in Australia with a mobile phone. Each had in his/her possession two mobile SIM cards, one of which was an AirTel SIM card, apparently used in India. In a notebook found in Mohammed's possession is an entry "Papar: 450415120 (code + 61) Aus". When arrested after delivery of the bag to him by Ms Basri, Madubuko was found to have a mobile phone with the call sign "0415415120".

A number "0173068907 was found saved as "Babe/M" and also as "Babe W" on the AirTel SIM card in Ms Basri's possession, and as "Johny" on the same mobile phone's contact list. SMS messages from "Boy H.gina M' originating from this number were saved on Ms Basri's phone. The same number appeared listed in Mohammed's diary against entries "John" and "Johnny".

A number, 60173989643 sent an SMS to the mobile phone later seized from Mohammed. That number appears in M/s Basri's mobile phone contact list against the entry "Ming". I am informed and accept that the numbers "60" constitute the international dialling code for Malaysia. Another number, "60162720316" is found in each of the mobile phones carried by Ms Basri and Mohammed. Ms Basri has the number stored against the entry "Babe M" and Mohammed has it saved against the entry "John".

There was also the existence of the photograph of Mohammed stored in M/s Basri's mobile phone taken sometime between 12th and 14th February 2008.

Finally, the Crown argues both accused arriving in Australia with substantial sums of United States currency is a coincidence upon which it can rely.

M/s Basri's and Mohammed have each made clear to police they were unaware of the presence of any contraband substance in the suitcase each was bringing to Australia. M/s Basri told police the bag was hers, although that explanation appears to have been later qualified. In her interview she told police the bag was her brother's, it was a bag she used from time to time. In effect she borrowed it from her brother. She says she inspected the bag thoroughly before packing it herself in India. There was no contraband in the suitcase.

Mohammed denies ownership of the suitcase or packing it prior to leaving India. He denies any knowledge of the illicit drugs being present in the bag.

Neither Madubuko nor Okonkwo, but for the pleas of "Not Guilty" has otherwise sought to advance a defence he will be running during the trial. Of course there is no onus upon either to advance any defence. Each may remain mute and require the Crown to prove his guilt if it can. While I cannot speculate, it is unlikely either has any interest in challenging the physical importation of heroin into Australia via two suitcases, one of which was, at the relevant time in possession of Ms Basri and the other in the possession of Mohammed. The outcome of each accused's case is likely to depend upon the capacity of the Crown to prove beyond reasonable doubt the necessary fault elements apposite to the charge or charges each accused faces.

In effect there are two major applications before the Court. Mohammed seeks severance of his charge from the indictment and a separate trial. All counsel seek the rejection of "coincidence evidence" sought to be lead by the Crown. The Crown has indicated in the event of the Mohammed charge being severed from the present indictment, it still proposes to lead "coincidence evidence" in both trials. Should Mohammed be successful in obtaining a separate trial, Madubuko applies to have the charge he faces of attempting to possess the proceeds of the alleged Mohammed importation heard in what I will call the Mohammed trail. As I understand it, even in the absence of co-incidence evidence, Mohammed still seeks a separate trial.

24, The Crown concedes it cannot allege any common purpose or joint criminal enterprise in its cases against Ms Basri and Mohammed. The Crown case is that Madubuko was to be involved in the receipt of the product brought in by Mohammed.

I propose to approach the question of coincidence evidence initially. Once the outcome of that matter has been determined, then I shall determine the separate trial application. It seems to me more appropriate to determine the coincidence evidence issue as though all accused were present. A case for coincidence evidence is more likely to be made with Mohammed present. Clearly one of the factors in determining whether coincidence is made out will be its impact in the case against Mohammed.

Once I have determined my attitude to coincidence, I shall then look at the question of whether Mohammed should have a separate trail. In the event he is given a separate trial I shall then have regard to Madubuko's application. In the event that a severance is given, there may be some need to review the coincidence evidence question in the light of altered circumstances.

Relevance of Coincidence evidence to the Crown case.

The Crown says that because of the improbability of the events occurring coincidentally that Madubuko, Okonkwo and Ms Basri had a particular state of mind, that is, they intended to possess the heroin imported by Ms Basri; and that Madubuko and Mohammed had a particular state of mind, that is they intended to possess the heroin imported by Mohammed. [T. 08/10/08 p.25/4-9]. The Crown puts his case on coincidence this way later in the submissions. "…it goes to possession and state of mind in relation to …counts 1 and 2. The coincidences are such that each of the couriers knew that there was something illicit in their bags and were reckless as to what is was…." [T.08/10/08 p. 28/27-30]. The Crown argued the fault element in relation to the importation charges was intention, belief or knowledge. The Crown case was that each accused was at very least reckless as to whether the bag each imported contained a substance, and reckless as to what that substance was.

The Crown acknowledged the real dispute in the trial was likely to centre upon whether the Crown could prove the fault elements required in the importation cases and the fault elements in respect of the attempt possess a border control substance charge.

The crown submitted that the coincidence show the mental elements can be made out.

The Evidence Act 1995 (Cwlth) (the Act) provides: The coincidence rule (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar; and (b) the circumstances in which they occurred are substantially similar.

(3) Para 1(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

An "event" is defined as meaning 1. anything that happens or is regarded as happening: an occurrence, esp. one of some importance. 2. the fact of happening (chiefly in the phrase: in the event of) . 3. the outcome, issue or result of anything (chiefly in the phrase after the event ). 4. Philos. something which occurs in a certain place during a particular interval of time. 5. Sport each of the items in a program of one sport or a number of sports… The Macquarie Dictionary Revised Edition.

Section 98 (2) provides that events are taken to be related if and only if two conditions apply - namely they are substantially and relevantly similar and secondly the circumstances in which they occurred are substantially similar.

Traditionally, "coincidence evidence" has been the mechanism by which similar fact and circumstances has been led against a single accused, with a view to demonstrating that because of the similarity of the past events an inference adverse to an accused can be drawn by comparing the Crown allegations made in respect of the instant case with past conduct of an accused. (see for example R v Maxwell John White [1999] NSWCCA 336; for common law cases involving the same principle see Perry v The Queen 1982 CLR 580; Sutton v The Queen (1984) 152 CLR 528).

However, in this case the Crown seeks to rely upon the concept of "related events" to expand the use of s.98 of the Act. The Crown relies on s.98 to harness it for the purposes of demonstrating a system of conduct undertaken by two accused who separately imported, on its case, heroin into Australia. The Crown concedes there is no joint enterprise or common purpose alleged in its cases against each accused. Nonetheless the Crown case is the "related events" would establish a common point of origin of the heroin from which a jury would then be able to infer a system or modus operandi, from which a jury could then move on to further infer knowledge, intent or recklessness in each accused as to the product she/he was importing into Australia.

With respect to him, the Crown appears to have made two significant errors in his approach to matters falling within s.98 of the Act. Firstly, he appears to have failed to distinguish between "events" and "circumstances". It is important to note s.98 relates to the use to be made of "related events". By comparison s. 97 of the Act deals with the use that may be made in some circumstances of "evidence of character, reputation or conduct …or tendency of a person".

In this case, the Crown, for example, seeks to rely upon the presence of Mohammed's photograph being stored in M/s Basri's mobile phone as an "event". Similarly he relies upon a telephone number noted in a notebook in Mohammed's possession at the time of arrest as being consistent with being the phone number of a phone in Madubuko's possession at the time of his arrest as being an "event". While these matters may amount to coincidences, they are circumstances rather than events. These are matters which may constitute circumstantial evidence in the Crown case against Mohammed and Ms Basri in the first instance, and against Mohammed and Madubuko in the second.

The second significant error is that he seeks to have the question of whether matters constitute coincidental "related events", upon an overview of the entire package of matters he has nominated. It may well be that the question of whether the package of coincidental related events is to be admitted as coincidence evidence will depend upon an overview of the evidence. However, the question of which evidence qualifies as "related events" must be determined, if the evidence's status is challenged, upon an analysis of the evidence itself. In this case the parties have challenged whether any of the items were "related evidence" as envisaged by s.98 of the Act.

Applying the distinction I have identified between a "related event" and a matter of circumstance, I can exclude immediately from consideration as related events a number of items sought to be relied upon by the Crown. By reference to the Prosecution's Schedule of Coincidences, I exclude items 1. Nationality of each of Mohammed and Ms Basri; 7. Photograph of Mohammed in M/s Basri's phone; 9. the presence in Mohammed's notebook of a phone number which is the same as the Madubuko's mobile phone number; 10. the presence of another number, and the SMS texts (assuming they are to be led in evidence) found sent and received from the number found in Mohammed's phone; and other SMS messages received in M/s Basri's mobile phone; 12. the common numbers and names against which those numbers are found in Mohammed's mobile phone and Ms Basri's mobile phone; 13. entries upon incoming Immigration Entry cards in relation to holidays; 14. the fact that neither Ms Basri nor Mohammed appeared to have planned holidays to Australia before departing from either Malaysia or India as the case may be; 16. the possession by each of Ms Basri and Mohammed of 2 SIM cards, one of which was an AirTel; 17. the clothing contents of each suitcase upon arrival in Australia.

If I be in error in determining the above matters should be excluded from consideration as "related events", then I should indicate my view they fail to qualify as related events because they fail to conform to the requirements of s.98 (2). Shortly I shall look at that more closely. I pause so that I can indicate that just because I have excluded these items as "related events" does not mean I have necessarily excluded any or all of them from admission into evidence upon some other basis. For example, the possession by Mohammed of a phone number upon which Madubuko could be contacted is capable of being circumstantial evidence against both accused on the question of whether there was any common purpose shared by them regarding the delivery of heroin to Madubuko.

While I do not exclude for the purposes of this judgment that actions of different accused cannot be captured within the coincidence rule as "related events", the provisions of s.98(2) make such a proposition difficult. That two accused can be associated by "related events" is likely to be difficult because of the impact of one arm or the other of the s.98(2) tests. A useful example is the presence of the photograph of Mohammed in Basri's phone. Firstly, the presence of the photograph in Ms Basri's phone is not relevantly or substantially similar with any other item listed against Mohammed in the schedule of coincidence. Nor is its being taken by Basri (Item 8) relevantly or substantially similar with any other item against Mohammed in the Prosecutions Schedule of coincidences. The photograph being taken and stored is not a "related event" it is the same event.

So far as Ms Basri and Mohammed are concerned, the taking of the photo is an event which involves both of them. In the case of each it cannot constitute a "related event" in the case of the other, because it is the same event. In fact the Crown relies upon their being present at the same time and place and both participating in the same event. Further, the photograph's storage by M/s Basri has no corresponding related event in the case against Mohammed. That is, no relevantly substantial and similar related event (s.98(1). Nor is there any circumstance in which the event (the storage of the photograph) occurred relevantly similar in Mohammed's case (s.98(2)). Had he taken a photograph of her, for example at the same time and place and stored it in his camera, an argument that the taking and storage of the photographs by each were related events may have some merit.

In fairness to the Crown, I have sought to encapsulate the items on his schedule and in his Notice as "events" to test whether it can be said they could in that way be described as related events. Whether an overview on the items qualifies them as related events requires an analysis of the prosecutions items. Nine of the Crown's so-called items of coincidence if translated into "events" may suggest the Crown is arguing: a) Two accused, both Malaysian residents, without prior planning, travelled at short notice to India, and within a short time of their arrival there, travelled to Australia by plane arriving at Kingsford Smith Airport on 25th February 2008, each carrying substantial amount of US currency, and with suitcases of the same brand containing heroin concealed in a false lining of the case beneath the mechanism housing the handle extensions, bound with brown tape. Each accused, departed from India within a day or so of the other. Both made reference on their incoming Immigration and Customs Entry card of coming to Australia for holidays.

A further four so-called items of coincidence may be expressed as an event thus: b) Each carries a mobile phone with her/him. There has been stored by someone within the mobile phone of each, items - phone numbers, SMS messages, photograph, and entries such as "John" and "Johnny" which suggest some link or links in common between the two users of the phone. Ms Basri and Mohammed each has travelled whilst having in their possession two SIM cards, one of which is an AirTel SIM card.

Assuming for the moment the description encapsulated in a) could be properly described as a description of two events - one involving Ms Basri, the other Mohammed, then those events would not qualify as a "related events" pursuant to s.98 (2) of the Act. Once any detailed comparison is made between the circumstances of Ms Basri's trip to India, and on-travelling to Australia with that undertaken by Mohammed, neither is substantially and relevantly similar. One is male, the other female. One arrives in India 11 days prior to departure and stays for that time with Gina (on the Crown case involved in the importation). There is no comparison as to how Mohammed spends his 4 days in India, or what, if any contact he has with any one associated with the importation. Both are done at different times; one trip is constituted by an internal trip to an airport and an international trip from that airport to Sydney, the other by a direct trip from Mumbai to Sydney. Each is done on a different airline. For all I know differing sums were paid for the total airfare, and possibly for the international airfare. One was undertaken after 4 days in India, the other after 11 days. Each travels at different times and by different routes to Sydney. The suitcase are of differing colours and sizes. When closely examined there are differences in the packaging and size of the packets containing the contraband. One brings in a commercial quantity of heroin, the other less than a commercial quantity. There is no evidence the proportion of heroin to admixture is substantially and relevantly similar. The heroin in each packet is of different origin. The quantity of United States currency each is carrying differs significantly. Mohammed is carrying if my maths is correct 66% more than Ms Basri. The origin of Mohammed's US currency is not disclosed in evidence. The purpose (assuming there is a specific one) of bringing the money is also unexplained in Mohammed's case. In Ms Basri's case it is said that $1000 is for a return ticket home (an explanation, incidentally, that a jury may have difficulty accepting).

From remarks earlier made, it will be readily understood, assuming the matters referred to in item b) could properly be described as two events - one relating to each of Ms Basri and Mohammed, then I would not regard them as "related" because of the provisions of s.98 (2) of the Act.

In the normal course of events the coincidence rule may be a mechanism used to establish the same accused committed a number of crimes having a similar modus operandi. In my experience I have not seen it being harnessed to link different accused to the same criminal organisation, or to a system. While I am in no position to rule out that it may be harnessed for such a task, on the evidence before me it cannot be so harnessed in this case. I do note however the terms of the test required by s.101 (2) of the Act appears predicated upon a proposition that coincidence evidence would for the purpose of that section be considered as it related to a single defendant.

Because of my approach to "related events" as set out above, it becomes unnecessary for me to have regard to the tests imposed by s98 (1)(b) or s.101 (2). However, given the purpose relied upon by the Crown for the tender of such evidence, namely to prove the fault elements required of him in respect of all accused, I would have ruled the items he relied upon would have no probative value against Okonkwo, very limited probative value against Madubuko, and in all cases substantially outweighed by the prejudicial effect on each accused.

The objection to the use of coincidence evidence pursuant to the Notice given by the Crown is upheld.

Consistent with an indication, earlier given by me, the Crown will be entitled to lead circumstantial evidence against both Mohammed and Madubuko of the presence in Mohammed's notebook of a telephone number that is the number of the phone in Madubuko's possession at the time of his arrest.

Both Crown and Mr Coyne have favoured me with written submissions. I am grateful to have had the benefit of those submissions.

I have reviewed above the Crown case against Mohammed, and so far as is known his response to it. I have noted the Crown's concession that it does not allege common purpose or joint criminal enterprise with M/s Basri. I have noted a link between Mohammed and Madubuko.

I have also made clear the Crown will not be leading coincidence evidence against Mohammed.

The Crown case is both M/s Basri and Mohammed have been used as couriers by the same principal(s). It is clear from the Crown submissions that he sees benefit in relying upon circumstances which may point towards both couriers being dispatched by the same principal(s). In order to advance that case the Crown will seek to rely upon evidence it was initially intending to lead as coincidence evidence.

Both M/s Basri and Mohammed deny knowledge of the presence of heroin. M/s Basri goes further denying she packed any contraband in her suitcase. She also denies the heroin was in her suitcase when she packed it. She knows this because she checked the internal lining.

The state of the evidence will invariable lead to a jury to comparing the cases of M/s Basri and Mohammed. There is a real danger of a jury relying upon their attitude to the evidence in one accused's case, particularly in respect of any explanation given (such as I didn't know there was heroin in the bag), to colour their attitude to the other case, again including any explanation given by that accused. I am far from confident that any direction I may give will be sufficient to divert a jury from any such impermissible comparison.

The law in relation to separate trials is well settled. The onus is upon the accused to satisfy the court a separate trial is in the interests of justice. The remedy is a discretionary one, which must be arrived at by application of proper principle.

At common law the inclusion of several accused on an indictment can be restricted.

As a general rule, it is of course no more proper to have tried by the same jury several offenders on charges of committing individual offences that had nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are, upon the available evidence, so related whether in time or other factors that the interests of justice are best served by their being tried together then they can properly be the subject of counts in the one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes case where there is evidence that several offenders acted in concert but is not limited to such cases. R v Assim [1966] 2 QB 249; approved Annankin v R (1988) 17 NSWLR 202.

The functions of an indictment were reviewed in R v Janeceski (2005) 64 NSWLR 10. Significantly insofar as this trial is concerned two of the five functions are significant: (ii) Providing the accused with the substance of the charge which he or she is called upon to meet, including identification of the essential factual ingredients . (emphasis supplied; authority omitted). (iii) Enabling the court to ensure that only relevant evidence is admitted and to properly instruct the jury on the relevant law. (authorities omitted).

The principles to be applied in determining whether to grant a separate trial are to be found in R v Middis unreported NSWSC 27 March 1991 per Hunt CJ at CL. They were approved by the Court of Criminal Appeal in R v Baartman (unreported) NSWCCA 6 October 1994. 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 a positive injustice would be caused to him in a joint trial. 60. Mr Crown argues the prosecution case against Ms Basri and Mohammed is basically the same. With respect, that is not so. There are significant differences. Ms Basri's admitted association with Gina for several days, and the link to Gina to be found in post India phone contact. Upon her arrival, although denying knowledge of the heroin, she willingly participated in a controlled delivery. Evidence emerging from the controlled delivery is relevant in her case but not in Mohammed's. A jury may well take the view that evidence arising from the controlled delivery greatly enhances the case against Ms Basri. No doubt the Crown thinks so, for he intends to lead the evidence against her. However the same jury may regard it as filling in gaps in evidence against Mohammed and throwing light on his contacts in India and his intended course after arrival at Kingsford Smith Airport.

61. I order that Lokman Mohammed be tried separately on the charge upon which he was arraigned before me on 8th October last.

62. As earlier noted Dr Glennan sought severance of Count 4 in the indictment upon the basis that it be joined in the indictment upon which Mohammed is to be tried. Count 4 arises out of the Crown case that Madubuko intended to possess the heroin brought in by Mohammed. As a matter of common sense, he should be tried on this charge with Mohammed rather than Madubuko face the charge in the context of the Crown's allegations against Ms Basri. The principles I have referred to above have equal application when severing a charge.

63. In Madubuko's matters the Crown case is immeasurably stronger on count 3 than it is on count 4. For that reason alone he is entitled to have the count severed, so that he can face the charge in its proper context.

64. I order that count 4 in the indictment upon which the accused Henry Madubuko was arraigned on 8th October last by severed from the indictment.

65. I 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.

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