Samadi and Djait v Regina [2008] NSWCCA 330 | Case summary

Samadi and Djait v Regina [2008] NSWCCA 330 | Case summary | Zoe

19 December 2008 Adel SAMADI v Regina Chebli DJAIT v Regina Headnote The appellants, Samadi and Djait, were jointly tried before her Honour Tupman DCJ and convicted by a jury upon 12 counts of jointly administering a stupefying drug to 12 separate complainants, with the intention of stealing property from each named complainant, contrary to s 38 of the Crimes Act 1900. In the same trial, Samadi was individually charged and convicted upon one count of sexual intercourse without consent contrary to s 61I of the Crimes Act. The complainant, HI, was also a complainant in one of the s 38 counts. Djait was also individually charged and convicted with 3 counts of sexual intercourse without consent contrary to s 61I of the Crimes Act. The complainant, HYA, was also another of the complainants in one of the s 38 counts. The offences of which the appellants were convicted occurred between 13 and 19 October 2004. The s 38 offences were based upon allegations that the appellants spiked the drinks of the 12 complainants with a stupefying drug, Clonazepam, with intent to enable themselves to commit an indictable offence, namely, to steal the property of the individual complainants. The basis of the sexual assault charges was that the relevant appellant took advantage of the specified complainant's drugged state to sexually assault that complainant. Tupman DCJ imposed an overall sentence on each appellant of 12 years non-parole, with an additional term of 3 years. The appellants appeal against their convictions, essentially contending i) that the trial judge erred in admitting, pursuant to s 98 of the Evidence Act 1995, the evidence in respect of the s 38 offences in consideration of each other s 38 offence, in particular, admitting into evidence the events of the incident involved in count 4, on the trial of the incident involved in counts 1-3, as being part of the one transaction, in accordance with O'Leary v R [1946] HCA 44; (1946) 73 CLR 566; ii) that there should have been joint, but separate trials in respect of the s 38 counts arising out of each of the other incidents; and iii) that there should have been individual and separate trials in respect of the sexual assault offences. The appellants also seek leave to appeal against sentence. Djait raises a further separate ground of appeal, alleging that her Honour erred in failing to discharge the jury on Djait's application following upon the fitness trial of Samadi, in circumstances where the jury did not hear evidence in the trial proper for over a week. Held per Beazley JA (Hislop and Price JJ agreeing) Did the trial judge err in applying O'Leary?

The evidence surrounding the incident in count 4, was so close in time, proximity and material particulars to evidence of counts 1-3. There was no error in the trial judge permitting the evidence in respect of count 4 to be admitted to explain and prove the state of mind of the appellants at the time of the commission of counts 1-3: [63], [172]-[173].

Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367; O'Leary v R [1946] HCA 44; (1946) 73 CLR 566 (applied); R v Adam [1999] NSWCCA 189; (1999) 47 NSWLR 267; 106 A Crim R 510 (considered); R v Player [2000] NSWCCA 123 (referred to). 2. Without the evidence in relation to count 4, the incident that gave rise to counts 1-3 would otherwise be rendered "an unreal and not very intelligible event": [63], [172]-[173]. O'Leary v R [1946] HCA 44; (1946) 73 CLR 566 (applied) 3. It was open to the jury to draw the inference, that the appellants committed the s 38 offences involved in counts 1-3, both in relation to the intention to steal and the administration of the drug Clonazepam: [63], [172]-[173]. Did the trial judge err in admitting the evidence in respect of the s 38 offences in consideration of each other s 38 offence as coincidence evidence, pursuant to s 98 of the Evidence Act 1995? 4. A determination under s 98 "is essentially evaluative and predictive" and requires an assessment upon which "reasonable minds may differ": [68], [172]-[173]. R v Zhang [2005] NSWCCA 437; 158 A Crim R 504; R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 (considered) 5. There was no error in the trial judge identifying 13 similarities, in time, place and methodology, between the s 38 counts on the indictment and concluding that those similarities were sufficient to meet the requirements of s 98 in the circumstances: [73]-[74], [81], [172]-[173]. 6. The similarities were capable of being rationally probative of the guilt of the appellants or, alternatively, rationally probative of the relevant facts in issue to prove the guilt of the appellants in relation to each of the other offences: [70], [172]-[173]. 7. For evidence to be admitted as coincidence evidence under s 98, there does not have to be an exact parallel of circumstances. Part of the purpose of coincidence evidence is to facilitate the proof of a circumstantial case: [85], [97], [172]-[173]. 8. These similarities were made out, notwithstanding that not all complainants had their property stolen, or that there could also have been some additional wrong intention, such as to sexually assault the victims in the s 38 counts: [74], [85]-[87], [89], [96], [97], [172]-[173]. 9. The probative value of the coincidence evidence did not substantially outweigh its prejudicial effect for the purposes of the Evidence Act 1995 s 101(2): [101]-[102], [172]-[173]. 10. The trial judge, having recognised the potential prejudice to the applicants in the admission of the coincidence evidence, gave appropriate directions to the jury: [102], [172]-[173]. Did the trial judge err in failing to order separate trials? 11. The question of whether there should be joint or separate trials is a matter for discretion for the judge at the trial. The discretion must be exercised judicially and not capriciously, having regard to the interests of justice as well as the interests of the accused: [108], [172]-[173]. R v Grondkowski; R v Malinowski [1946] 1 KB 369; [1946] 1 All ER 559; Merritt v Roso (1985) 19 A Crim R 360 at 364 (referred to). 12. There was no error in her Honour refusing the appellants' application for separate trials in respect of the ss 38 and 61I offences: [110]; [116], [172]-[173]. De Jesus v R [1986] HCA 65; 61 ALJR 1 (referred to). 13. Her Honour was conscious of the possible prejudices and considered that appropriate directions to the jury could overcome any possible prejudice. There was no error in that procedure, nor her Honour's directions to the jury: [117]-[118], [172]-[173]. Did her Honour err in failing to discharge the jury following the fitness trial of Samadi? 14. In determining whether to discharge a jury, the underlying principle is that an accused must receive a fair trial in accordance with law: [133], [172]-[173]. Crofts v R [1996] HCA 22; (1996) 186 CLR 427 (considered) 15. A challenge that a trial judge's refusal to discharge a jury is a challenge to conviction and in that circumstance, the court's powers to intervene are prescribed by s 6(1) of the Criminal Appeal Act 1912: [134], [172]-[173]. R v Sheikh [2004] NSWCCA 38; [2004] 144 A Crim R 124 (referred to) 16. Her Honour gave clear directions to the jury immediately upon the resumption of the hearing. There was no miscarriage of justice in this case in the trial judge refusing to discharge the jury: [137], [172]-[173]. R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1; R v Glennon [1992] HCA 16; (1992) 173 CLR 592 (referred to) Did her Honour err in sentencing the appellants? 17. Drink or food spiking is an insidious form of criminal activity, which demands severe punishment that reflects the primacy of general deterrence: [160], [172]-[173]. R v Reyes [2005] NSWCCA 218; R v Bulut [2004] NSWCCA 325; R v Harrison (1997) 93 A Crim R 314 (applied) 18. Having found special circumstances, her Honour erred in sentencing the appellants for a shorter period on parole than is contemplated even by the statutory ratio: [163]-[164], [168], [172]-[173]. 19. The appellant Samadi would have a justifiable sense of grievance in having the same sentence imposed as his co-offender, when he was convicted of one offence under s61I, whereas his co-offender Djait was convicted of three offences under the section: [167], [168], [172]-[173].

19 December 2008 Adel SAMADI v Regina Chebli DJAIT v Regina Judgment 1 BEAZLEY JA: The appellants, Adel Samadi (Samadi) and Chebli Djait (Djait), were jointly tried before her Honour Tupman DCJ and a jury upon 12 counts of jointly administering a stupefying drug to 12 separate complainants, with the intention of stealing property from each named complainant, contrary to s 38 of the Crimes Act 1900: counts 1-11 and 15. The appellants were each convicted upon all 12 of the s 38 counts. 2 Samadi was individually charged upon one count of sexual intercourse without consent contrary to s 61I of the Crimes Act: count 16 (and count 17 in the alternative). This count involved the complainant HI, who was also the complainant in count 15. Samadi was convicted on count 16. 3 Djait was individually charged with 3 counts of sexual intercourse without consent contrary to s 61I of the Crimes Act: counts 12-14. These charges involved the complainant HYA, who was also the complainant in count 11. Djait was convicted on counts 12-14. 4 Counts 11-14 and count 16-17 were also tried jointly with the s 38 counts. 5 The maximum penalty for the offences charged in counts 1-11 and 15, the s 38 offences, is a term of imprisonment of 25 years. The maximum penalty for the offences charged in counts 12-14 and 16, the s 61I offences, is a term of imprisonment of 14 years. The standard non-parole period for an offence under s 61I is 7 years: the Crimes (Sentencing Procedure) Act 1999: Pt 4, Div1A, item 7 of the table. 6 Tupman DCJ imposed an overall sentence on each appellant of 12 years non-parole, with an additional term of 3 years. 7 The appellants appeal against their convictions and also seek leave to appeal against sentence. 8 The offences of which the appellants were convicted occurred between 13 and 19 October 2004. The s 38 offences were based upon allegations that the appellants spiked the drinks of the 12 complainants with a stupefying drug, Clonazepam, with intent to enable themselves to commit an indictable offence, namely, to steal the property of the individual complainants. The basis of the sexual assault charges was that the relevant appellant took advantage of the specified complainant's drugged state to sexually assault that complainant.

Counts 1, 2 and 3 12 Counts 1, 2 and 3 related to a single incident which was referred to, both at trial and on the appeal, as incident 1, alleged to have occurred on 13 October 2004. On that date, two women, TV and PD, were at the Pontoon Bar at Darling Harbour, at about 8.30 pm. TV was a resident of Sydney and PD was a friend of hers visiting from interstate. At the Pontoon Bar, they met JA, a visitor from Adelaide who was attending a work conference. JA had gone to the Pontoon Bar for a drink. Whilst those three persons were talking, the appellants approached them and introduced themselves as "Andy" (Djait) and "Dylan" (Samadi). They socialised together for some time. JA gave one or both of the appellants his business card. Samadi went to the bar and bought drinks for TV, PD and JA. TV began to feel a bit drowsy, but did not say anything at the time. At about midnight, one or other of the appellants suggested the group move to another location to continue drinking. TV, PD and JA began to walk from the Pontoon Bar with the appellants, but not long afterwards, they parted company, and TV, PD and JA ultimately ended up in JA's hotel room, where they passed out. 13 Each has either no memory, or only a patchy memory, of what occurred from the time they left the Pontoon Bar. None has any real memory of going to the hotel room. When they woke the next morning, each realised they could not remember parts of the previous evening. They all had the same physical symptoms, feeling unwell, disoriented and hungover, notwithstanding that the amount of alcohol each had drunk would not have been sufficient to produce that degree of hangover. 14 Both PD and JA left Sydney in accordance with their plans. 15 The appellants were arrested on 19 October 2004, in respect of some of the later offences and their arrest attracted media publicity, to the effect there were allegations that they had been spiking tourist's drinks in the Sydney CBD area. TV, who was a journalist, saw the media reports and recognising that she had suffered the same symptoms, she reported the incident to the police. No forensic testing was undertaken of TV, PD and JA. However, JA's business card was found in the possession of Samadi on his arrest. In addition, TV identified both of the appellants at a photo identification parade sometime after their arrest. There was no other identification of either appellant for these three charges. 16 Djait did not dispute that he was present with Samadi and each of TV, PD and JA on 13 October 2004 and the other occasions relevant to the counts on the indictment. However, that concession was not made until counsel for Djait's opening address to the jury. By that time, the trial judge had made rulings on the appellants' applications for separate trials, the severance of the counts on the indictment and in respect of the Crown's intended reliance on evidence in one group of counts as coincidence evidence in other groups of counts.

Counts 5 and 6 20 Incident 3, which gave rise to the charges on counts 5 and 6, occurred on the evening of 14 October. KH and TM, both young Japanese women living temporarily in Sydney, were walking up Liverpool Street in the city. The appellants walked past them, and one of them asked KH and TM if they would like a drink, suggesting the nearby Shark Bar, which was in Liverpool Street. KH and TM agreed and went to the bar with the appellants. Djait introduced himself as "Andy". Each of the appellants told KH and TM that they were from New Caledonia. One or other of the appellants purchased drinks for them and shortly after drinking them, the young women began to feel tired. The appellants walked them home to their Darlinghurst address. Both victims felt unsteady on their feet during the walk home and both had fragmented and blurry memories of the walk home and of arriving home. 21 KH woke the next morning and went to work. TM did not wake until 5 pm the following afternoon. She noticed her wallet was missing from her handbag. She found it on the ground near the door to her unit, but her credit and other cards were missing. In addition, American Express travellers cheques worth about ¥20,000, about $200-300 in Australian currency and a gold ring with rubies in it, were also missing. 22 The credit card had been used for a cab charge after it was stolen. 23 KH and TM were told of media reports about drink spiking incidents, following the arrest of the appellants, after which they reported their incident to police. The symptoms each of them experienced after the encounter was similar to those experienced by other victims. 24 One of TM's missing travellers cheques was found in Djait's premises during a search conducted there after his arrest. 25 Neither of these complainants was able to identify either appellant during a photo identification process. However, each provided some recognition of a photograph of Djait. There was no blood or urine analysis done and both KH and TM's evidence was that no property was stolen from KH.

Counts 7 and 8 26 The events comprising incident 4 occurred in the early hours of 16 October 2004. On the previous evening, that is, 15 October 2004, YS and RW were at the Three Wise Monkeys hotel on the corner of George and Liverpool Streets Sydney, with their friend ME. The three women were Japanese, in Australia on working holiday visas. They met the appellants not long after midnight. They had previously met Djait about a month earlier, at the same hotel, when he had introduced himself as "Andy". On the night of 15 October, Djait introduced Samadi as "Dylan". The appellants purchased drinks for the three women, the last of which was a sweet, coloured cocktail. After drinking that, each began to experience symptoms, including full or partial memory loss. YS could not remember how she got home. However, shortly after 2 am, Samadi was seen on surveillance footage assisting her to leave the hotel. She returned alone, about 30 minutes later, but in such a state the security officer at the hotel obtained permission to escort her to her flat nearby. 27 RW has no memory of how she got home, but surveillance footage showed that Samadi walked her home to her flat at about 1.45 am. He took her to her bedroom, where he remained for about 20 minutes, leaving the premises at about 2 am. At about that time, he made a telephone call to Djait and shortly afterwards returned to the Three Wise Monkeys. He was seen leaving the bar with YS at about 2.15 am. 28 RW woke next morning feeling symptoms of muscle weakness and nausea. A digital camera, mobile phone and $59 in cash had been stolen from her handbag, which she had with her when she entered her flat with Samadi. The evidence suggested the appellant Samadi used the SIM card from RW's phone to make the telephone call to Djait as he was leaving the premises at about 2 am. 29 No property was stolen from YS. 30 The three women went to the police the next day and had blood and urine samples taken. The presence of the drug Clonazepam was detected in all three samples. 31 During the course of the evening, YS had taken some photographs and gave her camera for processing. 32 RW's camera was subsequently located in Djait's premises after his arrest. There were digital photographs on the camera of the appellants together with the three women at the Three Wise Monkeys on 15 October 2004. YS and RW identified both of the appellants during a photo identification parade.

Counts 9, 10 and 11 33 These counts involved incident 5 and occurred on 17-18 October 2004. HK and HA, two young Korean women, and JH, a young Swiss man, were friends working and holidaying in Sydney. On 17 October, they were at the Shark Bar in Liverpool Street, where they were drinking together and playing pool. 34 The appellants approached them and joined their game of pool. Djait introduced himself as "Andy" and said he was from New Caledonia. The appellants bought drinks for the group and a round of cocktails on learning that it was JH's birthday the following day. Shortly after drinking the cocktail, the two women started to feel symptoms, including a loss of coordination, weakness in their limbs and disorientation. The appellants suggested the group move to another location to continue celebrating. They did so, although neither HK or HA have any memory of events from this time. 35 One of the young Korean women (identified) woke the next morning in her flat and discovered her wallet was missing, containing her Visa card, $70 in cash, a Commonwealth bank card and her Korean driver's licence. 36 JH had no memory of events from just before midnight on 17 October, when he left the Shark Bar with the two women and the appellants. He woke in the afternoon the next day, having made his way back to his backpacker's hotel in Kings Cross. He had a cut to his right eye and blood on his hands, but he had no recollection of how that had occurred. His mobile phone had been stolen. 37 HA went to Djait's unit at Peakhurst in a taxi with him. Subsequent events are the subject of the three sexual assault matters involving Djait and are dealt with below. HA reported that her digital camera was stolen from her during the course of that evening. Earlier, photographs had been taken of the appellants with the HK, HA and JH on the camera. The camera was found in Djait's premises after his arrest. All three victims reported the offences to police late on 19 October 2004. Testing done on blood and urine samples revealed the presence of Clonazepam in the bloodstream of each. 38 JH identified both appellants during a photographic identification procedure. HA identified Djait in a photographic identification procedure. The photographs used in these identifications had been taken from YS's camera, one of the victims in incident 4. 39 On the afternoon of 19 October 2004, JH saw Djait walking past a coffee shop in Kings Cross near the Highfield Hotel. He contacted police who attended and arrested Djait. 40 It is convenient to next deal with incident 6, which was the last count, alleging an offence contrary to s 38 of the Crimes Act.

Did the trial judge err in applying O'Leary ?: Samadi ground 2: Djait ground 7 47 It was alleged that her Honour erred in admitting into evidence the events of incident 2 (count 4) upon the trial of incident 1 (counts 1-3) as being part of the one transaction. It was submitted that this was not a case where the approach permitted by the principles stated in O'Leary applied. 48 The Crown, at trial, proposed to rely upon the evidence in relation to count 4 to prove, that in respect of counts 1, 2 and 3, the appellants had an intention to steal, notwithstanding that there was no evidence of any property having been stolen. It was proposed to prove that intention from the circumstances surrounding the interaction of the complainants with the appellants, as well as the circumstances surrounding the offence and actual theft of property from the complainant in count 4. It will be remembered that the incidents in counts 1, 2 and 3 and in count 4 occurred on the same night and within a relatively short time of each other. 49 The Crown relied upon the principles stated in O'Leary as permitting it to pursue that course. The principle had earlier been stated by the High Court in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367. In that case, Dixon J, with whom Latham CJ agreed, stated, at 375: "If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued ." (Emphasis added) 50 In O'Leary, the appellant was convicted of a murder which was committed on 7 July 1946. A question arose as to the admissibility of evidence of assaults upon other persons committed by the accused on 6 and 7 July 1946. Those assaults were violent and unprovoked and the victims were fellow employees of both the appellant and the man killed. The victim had been struck violently on the head about eight or nine times and then kerosene had been poured on him and his clothes set on fire. Evidence of the other assaults was admitted at trial upon the grounds that the attack upon the deceased was brutally violent, that the deceased was drunk and helpless at the time and that the injuries had been inflicted to the head. The two former characteristics were present in the case of the other assaults proved and in one or two of them there were head injuries. The evidence had been admitted as similar evidence of acts which showed more than a general disposition to violence or his bad character. 51 This basis of admissibility was rejected by the High Court. However, there was an alternate basis upon which it was held to be admissible. Dixon J stated, at [577]-[578]: "The evidence disclosed that, under the influence of the beer and wine he had drunk and continued to drink, he engaged in repeated acts of violence which might be regarded as amounting to a connected course of conduct. Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's generally violent and hostile conduct might well serve to explain his mind and attitude and, therefore, to implicate him in the resulting homicide. Examples of the admission of evidence of connected incidents of one transaction will be found in R. v. Cobden (1862) 3 F. & F. 833 [176 E.R. 381]; R. v. Voke (1823) Russ. & Ry. 531, at p. 533 [168 E.R. 934, at p. 935]; R. v. Rearden (1864) 4 F. & F. 76 [176 E.R. 473], and as to this case see per Cussen J. in R. v. Herbert (1916) V.L.R. 343, at p. 349." 52 Latham CJ rejected the basis upon which the evidence had been admitted at trial. He said, at 574-575, that it would be a dangerous extension of the principles relating to the admissibility of similar fact evidence to hold that the circumstance that a crime was savage and brutal was sufficient to justify evidence that on other occasions the accused had been guilty of savage and brutal acts. The Chief Justice considered, however, that there was another basis upon which the evidence was admissible. After referring to the fact that all the assaults were incidents in a drunken orgy that took place over the course of the evening of 6 July and the early hours of 7 July, his Honour said that such evidence "was admissible to show the probability that [the accused] would attack another man in a fit of drunken fury". Evidence that the accused had actually attacked particular fellow employees without cause during this period was also evidence showing the probability that he would attack some other fellow employee. His Honour then said: "Such evidence puts the act of attacking [the victim] in a setting which makes it possible for the jury to obtain a real appreciation of the events of the day and the night. It is evidence of 'facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.' - per Dixon J. in Martin v. Osborne ." (Citation omitted) 53 The principle stated by Dixon J in O'Leary was considered by this Court in R v Adam [1999] NSWCCA 189; (1999) 47 NSWLR 267; 106 A Crim R 510. There, the Court, constituted by Spigelman CJ, James and Bell JJ (as her Honour then was), were concerned with an appeal from a murder conviction of an off-duty police officer. The appeal was allowed, but on a point not concerned with the Court's comments relating to O'Leary. In Adam, evidence had been admitted at trial that the accused, some time before the first stage of the attack on the deceased, had been staring at one of the patrons at the tavern where the murder occurred. In his address to the jury, the Crown had referred to this incident, stating, "there is aggressiveness, it is not as if they are just peace loving types". The comment was made in respect of the accused and one other person. 54 On the appeal in Adam, it was submitted that this evidence was admissible as tending to show the accused's state of mind at the time of the offence. It was also submitted that it was admissible under the principles stated in O'Leary, namely, that the accused's conduct "formed an integral part of a 'transaction' consisting of connected events, including both phases of the attack on [the deceased]". It was argued on the appeal that the principle of the admissibility of evidence stated in O'Leary had been abolished by the Evidence Act. This argument was rejected (see at [24] ff). 55 It had also been argued that evidence of that incident was "tendency evidence" within Pt 36 of the Evidence Act and was not admissible to prove the accused had a tendency to act in a particular way, or had a particular state of mind, because the preconditions for the admission of such evidence under the Act had not been satisfied. The Court, at [27], said: "If evidence of the appellant staring at Dennis Oshana was an integral part of a connected series of events happening on the night of 18 April 1997, which included the assaulting of David Carty and which could not be truly understood without reference to the evidence (that is, if the evidence came within the O'Leary principle) or if the evidence of the appellant staring at Dennis Oshana was evidence of conduct by the appellant at a time sufficiently proximate to the time of the alleged assaulting of David Carty to permit an inference to be drawn that the appellant had the same continuing state of mind at the time of the alleged assaulting of David Carty as he had at the time of the staring, then such evidence would not, in our opinion, be tendency evidence within Pt36." 56 The Court noted, however, that there would have been a serious question in the case whether evidence that at some indeterminate time prior to the assault of the deceased, the appellant had stared, even hostilely, at some other person in the tavern, would be admissible on the bases in O'Leary and the other bases upon which the Crown had relied. However, the jury had been appropriately directed that that incident was of no moment and that they should not draw any inference from it: see also R v Player [2000] NSWCCA 123 at [14]-[16]. 57 In the matter presently before the Court, the trial judge ruled that the evidence on count 4 was admissible in respect of counts 1-3 in accordance with the principles in O'Leary. Her Honour's reasoning was as follows: "It seems to me that in the case before me the evidence surrounding count 4 indeed is evidence so close both in time and physically to the other three that it can be said to be part of the same transaction and the circumstances surrounding count 4 are relevantly admissible to explain and prove the state of mind of the [appellants] at the time they were with the first three complainants and to be used by the jury to draw the inferences the Crown will ask them to draw, both in relation to intention to steal and the administration of the drug Clonazepam based on the reportedly described symptoms." 58 The appellants contended that this evidence was not so . They submitted that the incidents are quite different transactions. In incident 1, two women were involved (in fact, it was two women and one man). In incident 2, a homosexual man was involved. It was submitted that mere temporal proximity was not a legitimate basis for admission. Further, it was submitted that simply because two events could be characterised as involving the same two men drugging two sets of victims on the same night, it was not indicative of both events being part of the same transaction. 59 It was also submitted that when regard was had to the use to be made of the evidence relating to incident 2, it was to prove the appellants' intention to enable each appellant to commit the indictable offence of stealing property. It was submitted that such reasoning in this case was flawed, because there was a more compelling inference, or at least, an equally available inference, that the intention could have been of an attempt to sexually or indecently assault the female victims. 60 It was also submitted that incident 2 was quite different in that the drink spiking took place in the victim's home, whereas in incident 1, the drink spiking had occurred at a bar. 61 The Crown contended that her Honour had correctly admitted the evidence in respect of incident 2 as evidence relating to the counts arising out of incident 1, within the principles of O'Leary. Three matters were in issue in the counts arising out of each of those incidents: first, the identity of the offenders; secondly, whether the offenders had administered a stupefying drug to the victims; and thirdly, the intention of those offenders when doing so. 62 The Crown submitted that given the following matters, the evidence was admissible in accordance with the principles in O'Leary. First, both incidents involved the same two offenders. Secondly, both incidents were integral parts of a connected chain of events involving the appellants at and about the vicinity of the Pontoon Bar at around midnight on 13-14 October. Incident 2 began almost immediately upon the cessation of incident 1, in the vicinity of the Pontoon Bar, where SM was approached by the appellants. Finally, the Crown contended that incident 1 could only be presented as an "unreal and not very intelligible event" without: (1) forensic evidence that the appellants had administered Clonazepam to SM, the victim in incident 2, thereby providing an appropriate evidentiary basis for the inference the appellants had also administered that drug to the victims in incident 1; and (2) the evidence that the appellants had done so to enable the larceny of the property of SM provided an appropriate evidentiary basis for the inference that the appellants had similarly administered the drug to the victims of incident 1 to enable the larceny of their property. 63 In my opinion, there was no error in the trial judge permitting the evidence in respect of count 4 to be admitted to explain and prove the state of mind of the appellants at the time they were with the complainants in incident 1 and to be used by the jury to draw the inference, both in relation to the intention to steal and the administration of the drug Clonazepam, based upon their symptoms. Had the jury been instructed that the evidence in incident 2 was not part of the same overall circumstances, incident 1 would, in my opinion, be, as was said in O'Leary, "an unreal and not very intelligible event". It would simply be an event where persons had some wrong purpose. 64 The question then becomes whether the relevant intention for the purposes of s 38 could be inferred, or whether, as was submitted by the appellants, the more compelling, or at least equally available inference, was that the appellants intended to sexually assault the women. In my opinion, the relevant intention for the purposes of s 38 could be inferred from the circumstances proved in respect of count 4. However, even if there was arguably more than one intention operating on the minds of the appellants at the time that they spiked the drinks, that does not mean that the Crown could not restrict its case and allege an offence in respect of one of those intentions. Not does it diminish the force of the evidence that that on that night, the appellants were involved in a process of spiking the victims' drinks for the purpose of committing an indictable offence which was to enable them to steal, even if they may also have had some other intention, such as, for example, to commit a sexual offence. Accordingly, this ground of appeal should be dismissed.

[13]

In five of the six incidents one or other of the accused bought drinks for the complainants or it could be inferred that this occurred, that latter being the sixth incident. The remaining incident is count 4 in which there is no evidence in relation to that but which, following an order I have already made, will be heard together with counts 1, 2 and 3." 70 At the time her Honour was dealing with this application, each element of the offence was in issue, including identification. Her Honour referred to Zhang, noting that her task was an "evaluative and predictive one". Her Honour considered the circumstances surrounding each offence were "so strikingly and substantially similar" that the similarities were capable of being "rationally probative of the guilt of [the appellants]" or, alternatively, "rationally probative of the relevant facts in issue to prove the guilt of [the appellants] in relation to each of the other offences". 71 The appellants contend that the evidence in respect of the s 38 counts were not each so strikingly similar with respect to their facts such as to demonstrate that it was the intention of the appellants jointly and/or individually to steal from the victims, as contended on the Crown case. This submission accepted that there was, or at least may have been, a striking similarity in relation to the identification of the appellants and the fact that either together, or one or other of them, administered the stupefying drug Clonazepam. Notwithstanding these similarities, it was submitted that the evidence was not properly admitted as coincidence evidence. Alternatively, it was submitted the evidence was not available as coincidence evidence, because its probative value did not substantially outweigh its prejudicial effect: see the Evidence Act, s 101(2). 72 The appellants accepted that the evidence upon some of the counts was probative of the fact that one or both of them had drugged the victims to steal their property, but that this was not the case in relation to all counts. In some counts, for example count 16, the evidence was probative of the fact that one of the appellants, with or without the knowledge of the other, used the fact that the victims had been drugged to sexually assault them. It was submitted, however, that except for incident 2, which gave rise to count 4, the various incidents could be seen to be probative of the intention of the appellants, either jointly or individually, to steal or sexually assault the victims. It was submitted that in this regard, they were not strikingly similar. The point of this submission was to contradict the Crown's argument that it was the intention of both appellants to steal from the victims by drugging them. It was said that this was not the only logical inference, nor was it a striking similarity to be inferred from all of the incidents. 73 Coincidence evidence may be led to prove that a person did a particular act or had a particular state of mind. As I have stated, there were 13 similarities found by the trial judge on the s 98 application. The relevant similarity under discussion at the moment was that property had been stolen from victims in five of the six incidents. There was proof that some of the items stolen in those five incidents were located in the possession of one or other of the appellants. There was also the use of a credit card shortly after the time of the association between the appellants and the victim. In my opinion, the circumstances of the s 38 offences were substantially and relevantly similar and the circumstances in which they occurred were substantially similar. Those substantial similarities were identified by her Honour and I would agree that they each satisfied the test of being "related events" for the purposes of s 98. 74 This is so notwithstanding that in respect of counts 1-3, being the counts that arose from incident 1, there was no theft of property. Nonetheless, I consider it was open to her Honour to say that there was such a stark similarity between those offences, in time, place and methodology, that the similarity between those matters where property was stolen and counts 1-3, were probative of the appellants having the intention to enable the larceny of the property of the victims in all of the s 38 counts. It does not matter, in my opinion, that it might also be argued that there could have been some additional wrong intention, such as to sexually assault the victims in the s 38 counts. 75 The appellants, however, contend that when properly analysed, there were significant dissimilarities in the evidence, such that the requirements of s 98 for the admissibility of coincidence evidence have not been satisfied. Further, it was submitted that when the similarities identified by her Honour were properly analysed, there was significant overlapping, so that the "stark similarities" were not as numerous as her Honour identified. 76 It is convenient to deal with the analysis of the similarities first. The first similarity was that all the events occurred at more or less the same time, that is, between 13 and 19 October. The appellants take no point in respect of that matter. It was submitted that the second, third and eleventh items were correctly identified as one matter and not three. Those matters were: that the offences all involved two men: item (2); that the descriptions given by the twelve complainants are of two men and the descriptions were similar: item (3); and, in most cases, the two appellants used the names "Andy" and "Dylan", which are not their names: item (11). In my opinion, it is of little importance whether these matters are identified as components of one item, or separately. The fact is there were three relevant similarities: (1) that two men were involved; (2) that the descriptions of those men were similar in each count; and (3) that they used the same pseudonyms. 77 No complaint is made about any doubling up with item (4), which, it was accepted, stood on its own. It was then said that items (5) and (6) in her Honour's list amounted to the same thing. Again, the same point can be made, namely, whether one itemises these two together or separately, they contain two quite distinct components, namely, that the offence was initiated at or near a bar and those bars were within close proximity to each other. 78 It was alleged that items (7) and (8) also amounted to one similarity, namely the use of the drug Clonazepam. There is an initial attraction in the argument that there was no differentiation between these items. However, properly analysed, each deals with a different aspect of the same circumstance. Item (7) relates to the actual drug used; item (8) deals with the symptoms each victim described. The relevance of the separate identification of the symptoms the complainants experienced is that it was probative that the complainants were unaware that either the s 38 offences or the sexual assault offences were occurring. The drug used also forms a basis for the inference that explains the symptoms experienced by those complainants who did not undergo a blood or urine test. 79 The next items said to amount to a single similarity were items (9) and (13), relating to the opportunity to spike the victims' drinks. In my opinion, these two items again differentiate aspects relating to the immediate drink spiking: item (13) relates to the purchasing of drinks (other than in respect of count 4); item (9) relates to an opportunity to spike the drink. In my opinion, they are quite independent factors and were properly identified separately. 80 Item (10) was that in five of the six incidents, there was property stolen from the complainants. The appellants complain that other than for property alleged to have been stolen from RW (count 8), the stolen property was found in the possession of Djait and not Samadi. However, the Crown case based on the s 38 counts was of a joint criminal enterprise. It is not relevant, therefore, that more stolen property was found in the possession of one only of the appellants. The similarity relied upon was that property was stolen, not who retained possession of that property. 81 As will appear from the comments I have made in analysing the above, I am of the opinion that her Honour correctly identified the similarities and that it is irrelevant, in assessing such evidence as to whether it should be characterised as one similarity with a number of features or separate features, or whether the separate features should, or may be, separately identified. The appellants' point seems to have been that if the number of similarities could be reduced, either the 'stark' coincidence was reduced, or perhaps, more likely, that there were not sufficient similarities to amount to coincidence evidence. For the reasons I have given, neither of those points has been made out. 82 The appellants then argued that there were significant dissimilarities in the various incidents and had those been analysed, her Honour would not have found that the similarities were sufficient, when weighed with the dissimilarities, to fall within s 98. 83 The first, and most obvious dissimilarity upon which the appellants relied, was that there were two occasions of sexual assault, which did not occur in the other cases. It could not be said, therefore, on this argument, that the evidence in each count was strikingly similar. 84 Next, it was argued that in counts 1-3, there was no evidence of the victims being stolen from or sexually assaulted. It was argued that, as the victims in counts 1-3 were significantly affected by some intoxicating agent, it would have been an easy matter for the appellants to steal from them, or to separate the women from the man for the purposes of engaging in non-consensual sexual activity. It was submitted that JA was in such a condition that he would not have been able to protect the two women. Accordingly, it was said there was no coincidence in the circumstances of these two incidents. 85 I do not agree. In the first place it is speculative. But in any event, for evidence to be admitted as coincidence evidence under s 98, there does not have to be an exact parallel of circumstances. Indeed, part of the purpose of coincidence evidence is to facilitate the proof of a circumstantial case. Further, not only do the similarities not have to be identical, there were 13 similarities, many of which were to be found in counts 1-3. The other aspects of the coincidence evidence were available in relation to incident 1. The similarity of the other factors permitted an inference to be drawn that the intention of the drink spiking in respect of incident 1 was to steal from the victims. Further, the fact that there were dissimilarities does not of itself mean that evidence in the various counts could not be used as coincidence evidence in respect of each of the other counts. Nor does it matter, in my opinion, that arguably the appellants might have had more than one intention in the administration of the drug. 86 The appellants further contend that the Crown case based upon the 13 similarities is further flawed when regard is had to the sexual assault counts, counts 12-14, arising out of incident 5. The Crown case in respect of those counts was that Djait had taken advantage of HA's drugged state to sexually assault her. The appellants say that it is simply not open to the Crown to rely upon the theft of HA's camera as being the original intention in that case. It was possible that the theft of the camera may simply have been an afterthought, having effected the original purpose of sexual assault. It was also submitted there could possibly have been two purposes involved in the drink spiking incident: one, to sexually assault and two, to steal from the victim. Alternatively, it may have been that Djait's original intention was to sexually assault HA and that he took the camera to remove potential identification evidence, which might have been disclosed by photographs taken on the camera whilst they were together at the Shark Bar. It was submitted, therefore, that it was at the most, mere conjecture that Djait's intention when drugging the victims involved in incident 5 was either jointly or separately to steal from them. It was submitted the most compelling inference was that he intended to sexually assault one of the young women. It followed on this argument that an intention to steal was not a striking similarity with all the other offences and certainly not the case in respect of counts 1-3. 87 This argument has already been answered above. It does not matter that there may have been more than one intention operating. Provided that the Crown establishes on the relevant standard of proof that the appellants had the intention to steal, being the offence with which they were charged, then any argument about some other intention becomes irrelevant. 88 The appellants next submitted that the evidence relating to incident 2 (count 4) was different not only from incident 1, but all other incidents, because it involved a homosexual man. The other incidents all involved young women. Further, this incident did not involve buying the victim alcoholic drinks, nor did it involve buying him drinks in a bar. Nor did the incident take place in a bar involving, or likely to attract, tourists. Accordingly, it was argued, incident 1 could not be used as coincidence evidence arising out of count 2, giving rise to count 4, nor could the evidence in relation to count 4 be relied upon as coincidence evidence of any of the other counts. 89 The answer to this complaint is the same as that which has already been given above. There were two significant dissimilarities arising from count 4, namely, that the complainant was a homosexual man, and he was not approached in a bar and drinks were not purchased for him in a bar or elsewhere. The incident occurred in the complainant's unit. Nonetheless, there were other substantial similarities which were sufficient such that the evidence of the counts could be admitted as coincidence evidence in respect of the others. For instance, the appellants befriended the complainant outside the Pontoon Bar, located within the tourist precinct of Darling Harbour, immediately after parting from TV, PD and JA, and suggesting that they share a drink with the complainant. It is also noted that in respect of incidents 3 and 4, the appellants went to the complainant's residential address, and no sexual assault occurred. Rather, property of the complainants was subsequently found to be missing. 90 The appellants next submit that in respect of incident 5, counts 9-11, it is not relevant that property was stolen from the other two victims, that is HMK and JH (being the victims who were not subject of the sexual assault), because it was possible that the appellants might have had different intentions each to the other, one, that Djait's intention may have been to sexually assault the victim, whereas the intention in relation to the other two victims may have been larceny. The difficulty with this submission, however, is that all three victims had property that was missing the day after they had been drinking with the appellants. To the extent the appellants advance a number of other possibilities, such as that the victims may have spent the money that was allegedly stolen, or lost the other items such as the wallet and phone, given their drug-affected states, these are merely speculative matters. There was no evidence suggesting that any of these possibilities had or might have occurred. 91 Where the Crown case was that the appellants drugged the victims to thereby steal from them, it is irrelevant that the complainant in incident 2 was homosexual. In any event, the Crown summary of trial indicated that there was evidence to suggest that one of the appellants had indicated to the complainant that they were likewise of homosexual orientation, presumably to befriend the complainant. 92 The appellants advance similar arguments in respect of incident 3. In particular, it was submitted that it was possible that the purpose of the appellants' actions in drugging the drink of KH was for the purposes of engaging in sexual conduct with her, either consensual or non-consensual. In support of this argument, the appellants point out that there was no property stolen from her. However, to the extent that the Crown placed reliance upon the fact that there was property stolen from her companion, TM, being the complainant in respect of count 6, it did not support an inference that there was an intention to steal from her. It was argued that it was possible the appellants' intention was to engage in sexual conduct with TM and that Djait thereafter took the opportunity to steal from her. Whatever the position, it was argued there were a number of available interpretations of their joint or individual intentions, but no facts from which it could be clearly inferred their joint or individual intentions with respect to the other incidents. 93 Similar arguments are made in respect of incident 4, where YS and RW were accompanied by the appellants to their respective apartments. Only RW reported any of her property missing. 94 Finally, regarding incident 6, the appellants submitted that the most compelling inference available, if it was accepted that the appellant was involved in drugging HI, was that he did so in order to thereafter sexually assault her. It was submitted that although HI did lose some property, the evidence did not disclose the appellants being involved with the missing property. Therefore, it was submitted that the events were more consistent with an intention to sexually or indecently assault the victim. 95 In my opinion, the similarities identified by her Honour were also applicable to incident 6: the timeframe; the manner of befriending HI, a Swedish national; and inviting her to lunch at Opera Bar, a bar and tourist precinct, where it could be reasonably inferred that alcoholic beverages were purchased for HI by the appellants. The same stupefying symptoms associated with Clonazepam were also experienced by HI. If the sole intention was to have sexual relations with HI, against this inference is that the evidence showed that whilst Samadi pursued HI alone, Djait later joined Samadi and HI at Opera Bar. 96 These might be arguments that were available to counsel in their addresses to the jury. However, as I have already indicated, the trial judge was dealing with a pre-trial application to determine whether or not this evidence could be admitted as coincidence evidence. The similarities were sufficient for the evidence to be admitted on that basis. 97 Whilst an array of circumstances might be posited against the availability of drawing an inference, s 98, at the admissibility level, does not work in that way. The Court is concerned with determining whether evidence is substantially and relevantly similar and occurred in substantially similar circumstances, so that those events may be relied upon to prove, if accepted, that it is improbable that the events occurred coincidentally. In determining that question, the Court is not required to engage in a imaginative task of speculating what possible other explanations there could be for the circumstances relied upon. 98 The appellant also contends that the s 98 application should have been refused because the probative value of the evidence could not be found to substantially outweigh any prejudicial effect: see s 101 of the Evidence Act. That section provides: " 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. …. 99 The appellants contended that that there was a risk that the jury would be convinced, by the sheer number of counts alone, that the appellants must be guilty. 100 The trial judge understood that this argument was advanced not only on the basis that the coincidence evidence should be rejected because of its prejudicial value, but also to support the argument that the counts in the indictment be severed. In her judgment of 27 January 2009 at [16], her Honour acknowledged that there was a potential prejudice in that a jury might use the number of counts to reason that the appellants must be guilty, rather than properly using the coincidence evidence on the basis of its similarities or, for that matter, assessing what might be thought to be the dissimilarities in the evidence. 101 Her Honour said that such a prejudice arose in any trial where there were a number of counts being tried together. Her Honour concluded, however, that the similarities amongst the incidents were so striking that any prejudice could be cured by a direction to the jury that they would not be entitled to reason in such a way. Her Honour also considered that notwithstanding there was a possibility of such prejudice, it was substantially outweighed by the probative value of the similarity of these incidents. 102 In my opinion, her Honour, having recognised the potential prejudice, gave appropriate directions to the jury. In any event, the appellants' contention that the jury was likely to be persuaded by the sheer number of counts fails to grapple with the reality of the circumstances of the case. Whilst there were a large number of counts, those counts arose out of six incidents. The number of counts would not, in my opinion, lead a jury, properly applying its mind to the task, to reason that simply because there were a number of incidents with striking similarities, that the appellants must be guilty of all offences. There were distinct issues relating to each count. For example, Samadi's identification was in issue in each count; the question of consent was in issue in the sexual assault count; the question of theft was in issue in the s 38 counts. The jury were given appropriate directions, about which, I should add, there was no complaint. In my opinion, this ground has not been made out.

Alleged error in directions given in respect of consideration of the evidence relating to sexual assault: Djait appeal ground 10 103 The appellants make three complaints in respect of her Honour's refusal to order that there be separate trials in respect of the various counts. 104 First, they contend that there should have been separate trials in respect of the s 38 counts arising out of each incident. They acknowledge that it was appropriate that they be tried jointly in respect of such offences: Samadi grounds 3-10; Djait grounds 1-6 and 8-9. 105 Secondly, they contend that her Honour should have ordered that there be a separate trial on counts 1-3 from the other counts on the indictment. The appellants again acknowledged that it would be appropriate that such separate trial be held jointly between them: Samadi ground 3; Djait ground 1. 106 Thirdly, they contend that the sexual assault counts should have been heard separately from each other and separately from all other counts on the indictment: Samadi grounds 9-10; Djait grounds 8-9. Further, the appellants submitted that her Honour erred in her directions to the jury regarding the use the jury could make of the evidence admitted pursuant to s 98 of the Evidence Act: Samadi grounds 9-11; Djait ground 10. 107 In their written submissions, the appellants indicated that the first and second of these complaints could conveniently be dealt with together. However, on the hearing of the appeal, the emphasis was upon the second complaint, relating to counts 1-3, for obvious reasons. Separate arguments were advanced in respect of the third of these complaints. 108 The question of whether there should be joint or separate trials is a matter for discretion for the judge at the trial: see R v Grondkowski; R v Malinowski [1946] 1 KB 369; [1946] 1 All ER 559; Merritt v Roso (1985) 19 A Crim R 360 at 364. The discretion must be exercised judicially and not capriciously, having regard to the interests of justice as well as the interests of the accused: see Slattery CJ in CL and Carruthers J at 364. 109 The appellants frankly conceded that the success of the grounds that relate to the first and second question depended upon the Court's determination in respect of whether there was error in permitting evidence in relation to the different incidents in respect of the s 38 counts as coincidence evidence pursuant to s 98. They also conceded that the success of these grounds was dependent upon the determination of ground 2, relating to the application of O'Leary. As I have concluded these matters against the appellants, these grounds should be determined against the appellants. 110 Accordingly, I consider that Samadi grounds 3-8 and Djait grounds 1-6 should be rejected. 111 The trial judge refused the application that the sexual assault counts be heard separately from the s 38 counts and separately in respect of each appellant. Her Honour's ruling on this was as follows: "They are not joint counts … the evidence in relation to the connected s 38 offence for each of these two sexual assault charges would be admissible and in fact inextricably linked as evidence of knowledge of lack of consent in the sexual assault offence involving the same complainant. For each sexual assault offence the Crown would be entitled to lead evidence of events immediately before the alleged sexual assault to prove that the [appellant] in each case, if the jury were satisfied he had been involved in spiking the drink of the complainant, must have known that she was not consenting. Thus, in the absence of any unfair prejudice to one or other of the [appellants], it is appropriate that each sexual assault charge, at the least be heard together with the relevantly connected s 38 charge, even though the sexual assault offences involve one appellant only. Each of the [appellants] has identified what is said to be an unfair prejudice flowing from the sexual assault offences being heard together with s 38 offences or, for that matter, being heard together in one overall trial. Each of them … argues that to hear the sexual assault offence at the same time as the relevantly connected s 38 offence would give rise to an unfair prejudice to the extent that a jury would be, even if satisfied that the sexual assault offence occurred, prejudiced against the [appellants] and use that alone, impermissibly, to reason that he must have committed the connected s 38 offence.

There is a connection between the drink spiking offences and the sexual assault offences because, as you know, the complainants in two of the drink spiking charges are the same complainants in four of the sexual assault offences, two sexual assault incidents. The Crown relies on what they say you would accept in the long run, namely that the [appellants] together had administered Clonazepam to these two complainants, [HA] and [HI], and knew that they were suffering the consequences of that drug to prove both lack of consent and knowledge of consent. It is for that reason that the sexual assault offences and the drink spiking offences were heard together in the same trial. They are however, separate charges and you will need to bring in separate verdicts for the separate sexual assault charges. For that matter, also for the other twelve drink spiking offences, but I will say more about that later. It will not necessarily follow that even if you find the relevant [appellants] guilty of the connected drink spiking charge, that you would correspondingly find him guilty of the sexual assault offence involving the same complainant. You would only do so if you were satisfied beyond reasonable doubt that the Crown had proved each of the essential elements of the sexual assault offences beyond reasonable doubt." (Directions 21.03.06) 114 The appellants contend that the prejudice in having the sexual assault counts against each appellant heard together and with the other joint enterprise offences was overwhelming, and that the direction given was incapable of curing the prejudice. The particular prejudice identified was that there was likely to have been a cross-contamination of the evidence, both in relation to the sexual assault charges themselves, as well as in respect of the s 38 counts. In particular, it was submitted it was likely the jury would reason that the sexual assault charges were part of the joint enterprise. This was apparent, it was said, because the drink spiking episodes in which both appellants were involved, as part of a joint enterprise, were the circumstances that facilitated the assaults. 115 The trial judge recognised there was a real possibility that the jury could use the evidence in this way and thus engage in impermissible behaviour. Nonetheless, her Honour gave precise directions, explaining to the jury that they were not to engage in that process of reasoning. I refer below to the institutional respect that is afforded to the jury because of the Court's long experience that juries diligently apply themselves to the task entrusted to them, including following directions given to them by the trial judge. The comments that I make below on this matter also apply here. 116 In my opinion, there was no error in her Honour's refusal of the application for separate trials in respect of the sexual assault matters. As her Honour pointed out, the Crown would be entitled, and it would be expected that it would, lead evidence in respect of the related s 38 counts. It would follow that it would be likely there would be joint trials at least of those offences, and there would have been no error in her Honour ordering that the sexual assault counts be heard with the related s 38 counts. Once that position is reached, the question becomes whether her Honour erred in ordering that the sexual assault counts be heard together with all the s 38 counts. 117 The underlying principle is whether the appellants could thereby receive a fair trial. As I have said, her Honour was conscious not only of the possibility of some prejudice, but understood precisely what that prejudice was and considered that any possible prejudice could be overcome by appropriate directions to the jury. Her Honour's directions, which I have set out above were, in my opinion, clear. The jury could have been left with no misapprehension as to the manner in which they were to approach their task in relation to the sexual assault offences; what evidence they were to take into account in respect of each of the sexual assault offences; and what reasoning processes they could and could not engage in. As I consider further below, although this trial had its complexities, the alleged facts relating to each incident were straightforward and distinct. In my opinion, there was no error in her Honour not ordering that there be separate trials of the sexual assault matters. 118 Accordingly, I consider that Samadi grounds 9-10 and Djait grounds 8-9 should also be rejected.

That being the case, and there's nothing for you today either, there is still matters that I need to determine. I'm sorry that this has happened. It sometimes does happen in trials. I said to you at the beginning, particularly so in lengthy trials, that these sorts of things are more likely to happen. That being the case, you are now free to go today. You won't need to come back until Thursday 16 February." 120 The reason for adjourning the proceedings at that stage was because on 10 February, Samadi had made an application that there be an enquiry as to his fitness to stand trial: Mental Health (Criminal Procedure) Act 1990. The application was heard by her Honour on that day, upon which she was concerned to determine whether the application was made in good faith: see s 10(2). Her Honour determined that Samadi ought to be given an opportunity to obtain evidence to support his application that a fitness hearing be conducted. 121 On 14 February 2006, trial counsel for Samadi sought an adjournment until the commencement of the following week, for the purposes of obtaining appropriate psychiatric evidence in addition to that which had already been obtained. Her Honour refused the application and directed that the fitness enquiry commence the next day, 15 February. Her Honour noted for that purpose, a separate jury would be sworn to hear the evidence on the enquiry and make the determination. 122 At the commencement of proceedings on 15 February, her Honour raised the question as to whether she should give reasons as to why she considered a separate jury was required for the fitness hearing. That question had arisen because there was a question whether certain amendments to the Mental Health (Criminal Procedure) Act had come into force. Within what could only have been a minute or two of her Honour raising these matters, trial counsel for Samadi informed her Honour that his instructions were withdrawn. Counsel informed her Honour that his solicitor's instructions had also been withdrawn but that the solicitor proposed to contact the Legal Aid Commission urgently to try and have someone appointed to represent Samadi as soon as possible. Later in the morning, a Mr Lynch, from the Legal Aid Commission, announced his presence in the Court. Thereafter, there was further discussion about the enquiry as to the fitness hearing. Her Honour eventually stood over the fitness hearing until Monday 20 February. 123 On 20 February 2006, the matter commenced in the absence of the jury. Her Honour commented that she proposed to bring the jury in to inform them that issues had arisen which needed to be determined before the trial could commence. Her Honour was then informed by counsel for Djait that, at an appropriate time, he would make an application for a discharge of the jury. At that point, Mr Lynch made it apparent that he was appearing only as amicus for Samadi and that the jury should not be told he was appearing for Samadi in the trial. The jury were then brought into court and her Honour informed them that, as they would have observed, Samadi's counsel was no longer at the bar table and that there was a person from the Legal Aid Commission who was present, but in the role of amicus to try and assist with the continuing representation of Samadi. Her Honour informed the jury that the reason for that was of no concern or interest to them and that they were not to speculate about it one way or the other. Her Honour said: "Its just simply a fact but it means there are some practical difficulties … about taking over at short notice and coming to grips with all of the evidence that's been heard so far." 124 The fitness trial was conducted over 20 and 21 February and the trial jury returned on 22 February. However, at that point, Samadi had no legal representation, although Mr Lynch again attended court, as amicus. 125 Counsel for Djait made an application that the jury be discharged, given the possible prejudice to Djait due to the time the jury had been out of court. 126 The trial judge refused the application. In her judgment given on 22 February 2006, her Honour outlined the circumstances as to why the trial had been interrupted. Her Honour, at 3, identified the bases upon which the application for the discharge of the jury had been made. The first basis of the application was that the delay of some seven court days (or 10 days including weekends) may have had an impact on the jury's losing focus on the evidence that had been adduced to date and thus not being in a position to focus on that evidence when the time came for their deliberations. It had been submitted that itself would cause an unfairness to Djait. Her Honour rejected that argument. She acknowledged that it wasn't the perfect situation for there to be a delay in a trial. Her Honour noted, however, that it was not uncommon in long trials for juries to spend days at a time in a jury room, whilst non-jury issues were being resolved. Her Honour considered that it was relevant that a transcript of all of the evidence would be available to the jury and that counsel would have an appropriate opportunity in their addresses to the jury to refer to whatever portions of the transcript they considered relevant. Her Honour concluded that, although not ideal, the situation was not one requiring the jury to be discharged. She was not satisfied that the jury would have forgotten the evidence and noted that in an eight week trial it was likely the jury would need to be reminded of certain specific aspects of the evidence, even if they had been sitting in the court every day hearing evidence. 127 The second basis advanced in support of the application for discharge was that the jury might speculate adversely to Djait as to the reasons for the delay in the proceedings. Her Honour noted that no specific propositions had been put to support that argument. Her Honour referred to her direction to the jury that they were not to speculate about the fact that Samadi's legal representation had changed and said that they would also be given an instruction in due course that the delay was not a matter relevant to any issue at the trial and that they ought not speculate about it. Her Honour considered it was hard to see how a jury would form an adverse view of Djait in relation to the delay from the circumstances of which they were aware. She was also satisfied that to the extent they might speculate, any problems arising could be cured by strong directions. As it turned out, the original counsel for Samadi returned to the trial, although the jury was aware that there had been some interruption in relation to Samadi's legal representation. 128 Although in the written submissions some emphasis was placed upon the fact that the jury would have been confused by the revolving representation for Samadi during this period, the complaint as to her Honour's refusal to discharge the jury was eventually articulated solely upon the basis that the hiatus in the trial was so substantial, in effect bisecting the evidence, that it was likely that a jury would be affected in their recollection of the evidence. It was also submitted that there was an unfairness in that the evidence in respect of the "weaker counts", identified as counts 1-4, was given prior to the adjournment and that the evidence on the "stronger counts" was given thereafter. This submission is not entirely correct, as prior to the adjournment, the totality of the evidence had been given in respect of counts 1-9, as well as part of the evidence in respect of counts 15, 16 and 17. The remaining evidence given after the trial resumed was the continuation of the cross-examination of HI and the entirety of the evidence of JH relating to count 10 and of HA in respect of counts 11-14. 129 The Crown contends there was no miscarriage of justice in her Honour refusing the adjournment application. First, it was submitted that her Honour was satisfied that the jury could be appropriately reminded of the evidence by having access to the transcript. Secondly, the jury had been warned they were not to speculate as to the reason for the delay. The Crown also submitted it would have been obvious to the jury, having regard to the changes in legal representation for Samadi, that Djait was not responsible for the hiatus. No adverse impression, therefore, would have been gained by them in respect of Djait's conduct. Further, the Crown points out that the trial judge gave directions to the jury on their return on 22 February and also gave directions the following day, when the original defence counsel again appeared for Samadi. It is appropriate to consider that direction. 130 The direction by her Honour in respect of the delay was given just before the end of the day on 22 February, when the jury returned and her Honour informed them the trial would commence the following day. The directions were in the following terms: "The issues that needed to be resolved before we could continue have now been resolved, and all things being equal the trial will resume tomorrow at 10 or not long after 10 with further evidence being called.

Her Honour indicated that she expected the hearing to commence at 10 am or shortly thereafter. 131 At the commencement of the hearing on 23 February, Dr Glennon, Samadi's counsel, again appeared and informed her Honour that he understood his instructions had been reinstated and that he wished to confirm that with Samadi. Her Honour granted an adjournment until 11.30 am. 132 At about 11.50-55 am, the trial recommenced and her Honour gave the jury a direction in the following terms: "Ladies and gentlemen … we're back to the evidence and the trial all things being equal will continue to the end. I understand or I anticipate as I said yesterday it's well within the estimate I already gave eight to ten weeks … I just wanted to bring your attention to one thing and that is that Dr Glennon's back at the bar table appearing for [Samadi] and I told you I think Monday the 20th that he was not at that stage appearing for him. That's now no longer the case, he's back and the reasons for that as I said to you then and again yesterday that is not a relevant matter in this trial at all and not a matter for your speculation and I direct you that you must not speculate about what those reasons might be because they are simply not relevant to this trial. 133 There is no dispute as to the principles which apply in determining whether there has been an error by the trial judge in refusing to discharge a jury. The underlying principle is that an accused must receive a fair trial in accordance with law. In Crofts v R [1996] HCA 22; (1996) 186 CLR 427 the principle was stated in the plurality judgment (Toohey, Gaudron, Gummow and Kirby JJ) at 440-441, in the following terms: "No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

The onus of proving that proposition rests upon the appellant: see Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 at 526 per Barwick CJ. 136 In R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1 Mason P and Barr J, when dealing with a direction given by a trial judge to the jury to ignore certain evidence, commented, at [82], that it is the experience of courts "that reliance upon the integrity and sense of duty of jurors is not misplaced": see R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 614-615 per Dawson J. Their Honours considered that it was correct for the trial judge to believe a jury was likely to follow an instruction to ignore the evidence that had been struck out. 137 I am not satisfied there was any miscarriage of justice in this case in the trial judge refusing to discharge the jury. Although counsel for Djait originally sought to place emphasis upon the fact that what she categorised as the "weaker counts" was given prior to the adjournment and evidence on the other counts was given when the trial resumed, this understanding of the course of the trial was not accurate. The complaint came down merely to the length of time in which the jury was not hearing evidence. 138 The trial in this matter occupied 30 days. Although some difficult legal issues arose, particularly regarding the manner in which the evidence on different counts could be used in relation to other counts, the evidence in respect of each individual incident was quite simple and the facts were within a short compass. In my opinion, it would not have been difficult for the jury to keep in mind the different witnesses in each complaint and the different circumstances relating to each complaint. Her Honour gave clear directions to the jury immediately upon the resumption of the hearing. In addition, the addresses to the jury were detailed, as was her Honour's summing up. In my opinion, Djait has not demonstrated that there was a risk of a substantial miscarriage of justice by her Honour's refusal to discharge the jury.

(vii) Upon count 16: a non-parole period of 6 years commencing 20 October 2010 and expiring 19 October 2016 with a balance of term of 3 years expiring on 19 October 2019. 140 Her Honour thus imposed an overall effective sentence of 15 years and a non-parole period of 12 years. The sexual assault offence, count 16, carried a standard non-parole period of 7 years. Her Honour stated: "[This offence] seems to me must come to, if not above the middle range of offences objectively at the very least because [the appellants] in each case knew that the [victim was] under the influence of drugs which [the appellants] themselves had in fact administered and would be unable to resist the sexual intercourse." (ROS 37) 141 Samadi makes three complaints in respect of these sentences. First, it was submitted that there was an element of double punishment in the fact that the administration of the drug was the very basis of the lack of consent in the sexual offence matter, but that this feature, that is, the administration of the drug, had otherwise been dealt with upon sentence with respect to the s 38 offences. Secondly, it was submitted the sentence imposed for the sexual assault offence was otherwise excessive. Thirdly, it was submitted that the non-parole periods of 5 years in respect of the s 38 offences were also excessive. It was submitted that this was particularly so, given that the total period of criminality was over a period of less than one week, no victim sustained any lasting physical injury, Samadi had no prior criminal history and this involved his first sentence of imprisonment which he was serving upon protection. Finally, it was submitted that the overall non-parole period was excessive in the circumstances. This ground was directed to her Honour's finding that even though she found it difficult to assess the appellants' prospects of rehabilitation, she considered they might be assisted by somewhat longer than normal period of supervision after their release. 142 Samadi complains that given the periods of partial accumulation, the overall proportion of the non-parole period to the head sentence was 80 per cent, which was in fact higher than the usual proportion of 75 per cent. 143 The same sentences were imposed on Djait, with this difference. Djait was convicted of three sexual assault offences, being counts 12, 13 and 14. Her Honour imposed concurrent sentences of 6 years, with a non-parole period of 3 years. In addition, the first sentence was commenced from 19 October 2004, being the date that he was taken into custody. 144 The concurrent sentences imposed on Djait for the sexual assault offences has given rise to a further ground of appeal in the case of Samadi, in that he says he has a justifiable sense of grievance that he was subject to the same effective sentence, given that he was convicted of one count of sexual assault, whereas Djait was convicted of three. 145 Except for this last matter, Djait raises the same arguments. 146 Neither of the appellants challenge her Honour's findings that the s 38 offences were serious offences that the appellants had planned and carried them out in a systematic and coordinated way. They had obtained the drug legally upon prescription and each had had their individual prescriptions for 200 tablets filled during the time the offences were committed, one just before the first of the offences and the other just before the last. They carried the drugs on them in Tic Tac containers, which, her Honour considered, was done so that they would not arouse suspicion and enable them to administer the drugs easily to the victims. Her Honour also accepted the complainants were targeted, in the sense that they were likely to be tourists; that the drug was used so it was less likely the appellants would be detected because the complainants would suffer memory loss; and that the complainants were out enjoying themselves, making it less likely they would realise they had been robbed, after having their drinks spiked, rather than the possibility of simply losing or having their property stolen in crowded hotels or nightclubs. Her Honour considered that it was also relevant that the complainants who gave the appearance of tourists might have been expected to be less likely to report the offences and that the appellants knew that the impact of the drug would seriously hinder their ability to remember accurate details of the evening. Her Honour also referred to the risk of long-term physical harm from the drug. The evidence in the trial was that there was a possibility that any of the complainants could have suffered fatal consequences from ingesting the drug, although the risk was somewhat remote.

Subjective circumstances of Djait 149 Djait was older, being aged 36 as at the time of sentence and approximately 34 as at the date of the offences. He too was from Algeria and came to Australia as a refugee in 1998. His family has remained in Algeria and he has had no contact with them since being arrested for these offences. He has a previous criminal history involving one conviction for assault occasioning actual bodily harm, in 2004. That matter was dealt with in the Local Court under the provisions of the Mental Health (Criminal Procedure) Act and was dismissed and he was discharged on condition he undergo psychiatric treatment. Her Honour did not take that conviction into account in determining the appropriate sentence to be imposed in this case. Her Honour treated, as a mitigating factor, that he was a person without prior relevant convictions. Her Honour noted there was also a history of psychiatric treatment, but she was not able to discern what psychiatric conditions he had or was suffering from. She accepted, however, that he was suffering from and being appropriately treated for depression at the time of the offences. There was no clear evidence of an ongoing psychotic illness. Her Honour found that whatever psychiatric or psychological condition Djait was suffering from, there was no evidence that it played any part in the commission of these offences. She considered, however, that his psychiatric condition to some extent mitigated what would otherwise be an appropriate sentence, but held that it would be of limited significance. 150 Samadi, even after conviction, denied committing the offences. Her Honour considered there was no remorse or contrition on his part to be taken into account as a matter of mitigation. 151 Djait had, apparently, expressed remorse to Dr Westmore, psychiatrist, and indicated some empathy for his victims. However, he did not give any evidence himself of this. 152 On the sentence hearing before her Honour, Djait submitted that he should be afforded some utilitarian discount, because he had not put his identity in issue, nor his presence with the victim of the sexual assault. Her Honour rejected this and noted that the complainants, for the most part, were required to come to Sydney either from overseas or from interstate to give evidence and each was subjected to lengthy cross-examination on behalf of both Djait and Samadi. Her Honour rejected, in the circumstances, that there was any utilitarian value in Djait's admission of his presence and the fact of sexual intercourse because his defence was that this had been consensual. Her Honour considered that the admissions did not indicate a willingness by Djait to facilitate to administration of justice. Her Honour pointed out, however, that this was not an aggravating feature, but said that it would not be taken into account as a mitigating feature. 153 Her Honour also took into account the fact that each of the appellants was in protection in prison, on their own applications, and even though she had little evidence of the circumstances of their imprisonment, she accepted this would probably limit their access to prisoner programmes, although Djait had taken advantage of some programmes whilst in prison, up to that point in time. 154 I have already referred above to her Honour's consideration of the seriousness of the sexual assault charges, having regard to the standard non-parole period. 155 Her Honour considered that there was a wide range of sentences available in respect of the drink spiking offences, and little by way of assistance from statistics or decided cases. In assessing the objective seriousness of the offences, her Honour considered that a s 38 offence involving an intention to steal was less serious than an offence of causing physical harm to a person or to sexually assault a person. Her Honour also considered that, for the most part, the property stolen was of small value. Nonetheless, her Honour stated that "rendering someone unconscious" is serious. Likewise, targeting vulnerable people, either because they were drunk, as in the case of SM, or because they were tourists who were unlikely to report the commission of such a crime, was serious. Her Honour added, "drink spiking is serious and potentially fatal". It followed, in her Honour's opinion, that a "strong message of general deterrence" should be sent to the community by the sentences to be imposed. 156 Her Honour also turned her attention to the question of parity, considering that parity should apply. She said: "There is no real difference in terms of their involvement in any of the offences and the jury's verdicts confirm that. Their subjective circumstances are very similar. It seems to me that there is no real difference between the two of them and I propose that the same sentence be applied to each." 157 Her Honour did not, however, give any consideration to the question of the difference in the number of sexual assault offences committed by Djait, as compared to Samadi. Samadi complains that he has a justifiable sense of grievance in the circumstances, in being given the same overall sentence as Djait. 158 Her Honour emphasised that general deterrence was important in sentencing for these offences. I agree. Drink or food spiking is a particularly insidious form of criminal activity. As Grove J pointed out in R v Reyes [2005] NSWCCA 218 at [81], (Wood CJ at CL and Hoeben J agreeing): "… a gauge to the seriousness with which Parliament has regarded offences of this type can be found in the prescription of a maximum term of twenty five years imprisonment. Except where life sentence is available this is the equivalent of the highest available determinate sentence to be found in the Crimes Act. For these offences it is of great importance to pay heed to general deterrence and significant weight should be given to it: R v Bulut [2004] NSWCCA 325." 159 In Bulut, Hoeben J (Spigelman CJ and Barr J agreeing) referred to R v Harrison (1997) 93 A Crim R 314 at 320, where the Court referred to the primacy of general deterrence in the following terms: "Except in well defined circumstances such as youth or the mental incapacity of the offender … public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed." 160 In my opinion, the sentencing purpose of general deterrence given the nature of this offence, including its insidiousness and the potential serious effects of the administration of this drug on unwitting recipients, underscores the seriousness with which the s 38 offences should be approached. Those who might think that drink or food spiking is a soft crime should be under no misapprehension that it is not so viewed by the legislature or by the Courts. Those who are convicted of such offence should expect to be dealt with by the courts on the basis that it is a very serious crime. 161 Her Honour carefully examined the subjective circumstances of each appellant and I agree with her findings on those matters. 162 I also agree with her Honour's finding of special circumstances, which was well founded. I would add that, in accordance with well-accepted sentencing authority, the accumulation of the sentences provides another reason for finding special circumstances. 163 Her Honour was faced with a difficult sentencing task. Unfortunately, however, the overall effective sentence imposed by her Honour did not reflect her finding of special circumstances. Section 44(2) of the Crimes (Sentencing Procedure) Act provides that the balance of term of the sentence to be imposed, after the non-parole period has been stated, must not exceed one-third of the non-parole period for the sentence unless the Court finds special circumstances, in which case it is required to state the reasons for the finding of special circumstances. This section permits, but does not require, the Court to vary the specified ratio. However, the very purpose of finding special circumstances is to provide the basis upon which the court may, and as a matter of sentencing practice will, vary the specified ratio favourably to the accused, to allow, inter alia, for a longer period of parole, so as to assist the convicted person to reintegrate into society. 164 Her Honour gave reasons for finding special circumstances. However, the effect of the overall sentence imposed was that the ratio between the non-parole period and the overall effective sentence was 80 per cent and thus provided a shorter period on parole than is contemplated even by the statutory ratio. Had she applied the ratio referred to in s 44(2), the non-parole period would have been 11 years 3 months. It is likely that after such a difficult sentencing exercise her Honour did not appreciate the effect of her overall sentence was to impose a non-parole period in excess of the ratio of 75 per cent that is derived from s 44(2): see my comments in Hogan v Regina [2008] NSWCCA 150. 165 In my opinion, the appellants are entitled to be sentenced so that the finding of special circumstances is appropriately reflected in the overall sentence imposed, so that some other sentence is warranted in law: s 6(3) of the Criminal Appeal Act. 166 That leaves only the question of parity as between the sexual assault offences. The principles in this are well-known and do not need to be restated in this appeal: see Lowe v R [1984] HCA 46; (1984) 154 CLR 606; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295. 167 In my opinion, Samadi would have a justifiable sense of grievance in that he was charged with one offence, rather than three offences, as was Djait. There has to be balanced against this, however, the fact that Djait's offending was all part of one incident, so that it was appropriate for her Honour to make those sentences concurrent. I would propose to deal with this aspect of the case by reducing both the non-parole period and the balance of term as compared to Djait. 168 In the case of Samadi, therefore, I have reached the conclusion that there was error in the trial judge's sentencing approach, both in failing to impose a sentence that gave effect to the finding of special circumstances, and in failing to have regard to the greater number of offences in respect of which Djait was convicted. In the case of Djait, I am of the same opinion in relation to the failure to give effect to the finding of special circumstances. There should, therefore, be a slight adjustment of the sentences imposed by her Honour. 169 The re-sentencing process has presented its own difficulties. In the end, the allowance for special circumstances, which is logically made on the last sentences imposed by her Honour, has resulted in a lesser sentence on the sexual assault counts that she imposed. That is not to suggest that this Court has taken a lesser view of the seriousness of those offences. To the contrary. The variation of those sentences is only so as to give proper effect to the finding of special circumstances and additionally in the case of Samadi to reflect my conclusion on parity. 170 Finally, I would add that I propose that otherwise there be fixed terms imposed for the s 38 offences as any non-parole period would have been absorbed in the later sentences. 171 The orders that I propose are as follows:

Samadi and Djait v Regina

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