Trotter v R

THE COURT: The applicant, Erin Trotter, seeks leave to appeal from an interlocutory decision of Lakatos SC DCJ in which his Honour refused her application for a separate trial pursuant to the Criminal Procedure Act 1986 (NSW), s 21(2).

The applicant is charged with one count of knowingly taking part in the supply of cocaine contrary to the Drug Misuse And Trafficking Act 1985 (NSW), s 25(1), being count 8 of an indictment comprising 18 counts against six accused. A joint trial is presently set down to be heard in July 2016.

The other accused on the indictment are the applicant’s husband, James Trotter; her father-in-law, William Trotter; her mother-in-law, Sharon Trotter; her brother-in-law, Trent Trotter; and David Bowman, who is Sharon Trotter’s brother.

The Crown alleges that the applicant was involved in a joint criminal enterprise with William, James and Trent Trotter to supply cocaine. Separately, the Crown alleges the existence of a joint criminal enterprise to supply heroin. The parties to that enterprise are said to be Sharon, Trent and James Trotter and David Bowman. No involvement by the applicant in the supply of heroin is alleged.

The Crown contends that the structure of the joint enterprise involving the applicant was that orders for cocaine would be communicated to James or Trent Trotter by telephone or SMS from another participant in the joint enterprise, Jason Haidar. Mr Haidar would collect the drug either from the Mascot premises of the applicant and James Trotter or from the Rosebery premises of William Trotter. Mr Haidar is deceased.

By count 8 on the indictment, the Crown contends that the applicant knowingly took part in the supply of approximately 1.5 g of cocaine on 24 January 2014 at Mascot. The evidence proposed to be adduced to support the applicant’s participation in that transaction includes intercepted SMS messages and telephone conversations between James Trotter and Jason Haidar and between James Trotter and the applicant. Those intercepts comprise the only direct evidence implicating the applicant in the joint enterprise, and it is necessary to set them out in order to understand the submissions of both the applicant and the Crown.

The Crown alleges that, on 24 January 2014, Mr Haidar made an arrangement by SMS with James Trotter for the supply of cocaine. The following exchange occurred in those messages:

Shortly after that SMS exchange, at 16.31, James Trotter called the applicant. The following conversation was intercepted:

At 16.44, Mr Haidar sent a text to James Trotter to let him know he was at the Mascot premises. James Trotter again called the applicant, as follows:

As previously indicated, the only direct evidence in relation to the applicant are the telephone intercepts from 24 January 2014. The Crown case as to the joint enterprise to supply cocaine otherwise relies on further intercepts between William, James and Trent Trotter on four additional dates in January and February 2014, none of which directly relate to or refer to the applicant; the location of 1.01 g of cocaine found on the person of Mr Haidar when he was searched by police on 11 February 2014; and the location of 6.23 grams of cocaine found at the Mascot premises, in a jacket similar to that described in the intercepted phone conversations, on 21 February 2015.

The applicant has not been charged with any offence in relation to the cocaine found in the execution of the search warrant at the Mascot premises where the applicant and James Trotter resided. However, the Crown’s submissions on the question of separate trials below state that the Crown intends to rely upon finding the cocaine in the Mascot premises in order to prove the applicant’s participation in the joint criminal enterprise. It is necessary to briefly outline the evidence in relation to that search.

The applicant was present with her newborn baby and a female friend during the search. James Trotter, who was not present, was advised by police that the search was being conducted. He was subsequently observed driving well in excess of the speed limit before running a red light in Mascot. He was stopped due to his manner of driving and then arrested.

A black “G-Star” brand jacket, which the Crown alleges is the jacket referred to in the conversation set out above at [8], was found in the main bedroom of the Mascot premises. In the pockets of the jacket were plastic bags containing what was found to be 6.23 g of cocaine and a quantity of heroin, as well as empty plastic bags, a pocket scale and a plastic spoon. James Trotter was charged with a deemed supply offence in relation to the cocaine and a possession offence in relation to the heroin.

Other drugs were also found in the main bedroom, namely, 15.74 g of Alprazolam (Xanax) and 0.69 g of MDMA, both found in plastic bags in the pockets of a different jacket, and 4.19 g of 1,4-Butanediol, found under the bed. James Trotter was charged with possession offences in relation to each of those substances. In addition, he was charged with a goods in custody offence in relation to $1,950 in Australian currency found in the wardrobe in the main bedroom.

During the course of the hearing in this Court, there was discussion about what aspects of the evidence, if any, relating to the joint enterprise to supply cocaine which does not directly implicate the applicant will be admissible as against her. We will return to that issue below, but pause to observe that any question of admissibility of the evidence will be a matter for determination by the trial judge.

Evidence will also be adduced at the joint trial relating to the joint enterprise to supply heroin. It was not suggested that that evidence would be admissible as against the applicant.

The Criminal Procedure Act, s 29 provides for hearings involving multiple accused persons, as follows:

The applicant sought an order under s 21(2). That section provides:

The determination of whether to order separate trials was described by Allsop P in DAO v R [2011] NSWCCA 63 at [77] as:

Being a discretionary decision, error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 must be demonstrated for the applicant to be successful: see DAO at [78] per Allsop P; DSJ v R; NS v R [2014] NSWCCA 77 at [61] per Gleeson JA, with whom Hidden J agreed. Thus it must be shown that the trial judge, in the exercise of his discretion, erred in acting on a wrong principle; allowed extraneous or irrelevant matters to guide or affect him; mistook the facts; failed to take into account some material consideration; or that the result is unreasonable or plainly unjust such that the Court may infer a failure to properly exercise the discretion.

The rationale for joint trials, and the circumstances in which applications for separate trials will be granted, were considered by the High Court in Webb & Hay v The Queen [1994] HCA 30; 181 CLR 41, a South Australian murder case in which an application for a separate trial by the second appellant, Ms Hay, had been refused by the trial judge.

Toohey J, with whom Mason CJ and McHugh J agreed, held, at 88-89:

In R v Domican and Drummond (No 2) (1990) 46 A Crim R 408 at 423, Kirby ACJ (Campbell and Studdert JJ agreeing) stated as follows:

The circumstances in which a separate trial will be ordered were considered by Hunt J in R v Middis (unreported, NSW Supreme Court, 27 March 1991), at 4, as follows:

Hunt J elaborated on the principle, as follows, at 5:

Hunt J’s formulation has been frequently approved in this Court: see R v Baartman (unreported, NSW Court of Criminal Appeal, 6 October 1994); R v Chami; R v Sheikh [2002] NSWCCA 136; 128 A Crim R 428 at [12]; Symss v The Queen [2003] NSWCCA 77 at [69]; R v Pham [2004] NSWCCA 190 at [38]; Pham v Regina [2006] NSWCCA 3 at [10]; Madubuko, Henry Ugo v R [2011] NSWCCA 135 at [28].

In Pham [2004] NSWCCA 190, Adams J, with whom Spigelman CJ agreed, expanded on Hunt J’s formulation as follows:

Both the applicant and the Crown placed some emphasis on Chami; Sheikh. That case concerned a trial on an indictment consisting of 19 charges relating to five gang rapes and to offences of perverting the course of justice. It was alleged that each of the applicants had been involved in one of the incidents. They sought leave to appeal against the refusal of the trial judge to order that they be tried individually.

The trial judge dealt with Sheikh’s application for a separate trial on the basis that if the application were successful, charges against Sheikh and his co-accused in the counts relating to him would be heard jointly. It appeared that his Honour did not consider the possibility of a trial against Sheikh alone. Ipp AJA, with whom Bell J agreed, held that that was in error and that the Court, for that reason, was required to exercise the discretion afresh. His Honour determined that a separate trial in relation to Sheikh should be ordered. Ipp AJA’s reasoning was as follows:

The Crown referred to R v Al Khair (unreported, NSW Court of Criminal Appeal, 20 June 1994), and Fattal v R [2006] NSWCCA 359 as authorities relating to evidence of phone conversations to which the accused was not a party. In each case, the relevance and therefore the admissibility of evidence of telephone intercepts not involving the applicant was in issue.

In Al Khair, Mrs Norhan Al Khair, her brother, her sister-in-law, and a fourth participant, were charged with a number of offences relating to the supply of heroin. The fourth participant pleaded guilty. Each of the other accused was found guilty in a joint trial and each appealed against conviction. On her appeal against conviction, Norhan Al Khair contended that the trial judge had erred in refusing her application for a separate trial. That ground could only succeed if a number of telephone intercept records had wrongly been admitted into evidence against her: see at 37. Norhan Al Khair submitted that the evidence was inadmissible as against her because, although she was referred to in them, she did not participate in any of the telephone calls. That submission was rejected. Priestley JA, with whom Gleeson CJ and Wood J agreed, held at 35:

In Fattal, the appellant was tried for an offence of supplying a large commercial quantity of ecstasy. The Crown case was that Fattal participated in a joint criminal enterprise in relation to that supply by picking up the drugs in Sydney and attempting to take them to Brisbane, in the company of another man. Evidence was led of telephone intercepts to which the appellant was not a party but which made reference to his role in the enterprise. Sully J (McClellan CJ at CL and Hislop J agreeing) considered that the telephone intercepts were probative of the joint enterprise. His Honour held, at [42]:

The primary judge, at the commencement of his reasons, appropriately referred to the totality of the charges on the indictment. This was necessary in order to put the charge against the applicant in context. His Honour next referred to the principles that governed the determination of an application for a separate trial and to Al Khair and Fattal. His Honour then referred in summary form to the evidence by reference to the revised Crown case statement.

His Honour, after outlining the evidence intended to be adduced against the applicant, summarised the Crown’s position as follows:

Strictly, his Honour is incorrect in this statement to the extent that he stated, or at least implied, that all the evidence relating to both joint criminal enterprises was relevant to the application. No complaint is made as to that overstatement and it is apparent from his Honour’s reasons overall that this was a slip and did not reflect a finding that evidence in relation to the heroin was to be adduced against the applicant.

After referring to the telephone and SMS intercepts of 24 January 2014, his Honour noted that there was no other direct evidence against the applicant in relation to her involvement in the actual supply of or in a joint criminal enterprise to supply prohibited drugs. His Honour also referred to the applicant’s submissions which emphasised the limited nature of the direct evidence against her and of the evidence directed to her involvement in a joint criminal enterprise; to her argument that no inference could be drawn from the evidence that she knew that cocaine or any other prohibited drug was involved; to the submission that the evidence against her was weaker than and different from the evidence against the other accused persons; and to the applicant’s contention that there was a large volume of material proposed to be presented by the Crown that was not admissible against her but would be highly prejudicial to her.

His Honour accepted that there was “some merit” in the applicant’s contention that the case against her was significantly weaker than that against the other accused. However, his Honour noted that, apart from the quantity of the evidence against the other accused, the applicant had failed to articulate a way in which that material would be prejudicial to her. His Honour considered that the applicant’s contention that the evidence to be adduced at the joint trial that did not relate to her was ‘overwhelming’ evidence could go two ways in that:

In the result, his Honour considered:

His Honour further commented that the authorities to which he had referred supported the proposition that participation in a joint criminal enterprise could be proved by evidence that did not directly involve an accused person, in this case the applicant. His Honour concluded that the applicant had not established that there was a risk that the joint trial would result in a positive injustice to her.

The applicant’s case is that she was an innocent agent for her husband James Trotter in the one transaction in relation to which she is charged. She submitted that the primary judge erred in failing to make reference to that part of the intercepted message from her husband to Jason Haidar that stated “she doesn’t know what’s doin’”, which she contended supported her case and demonstrated the weakness of the Crown case that she was part of the larger joint criminal enterprise. In oral argument, when pressed to identify a ground on which it might be found that the trial judge erred in the exercise of his discretion, counsel for the applicant further submitted:

The import of the applicant’s submissions was that, having regard to its onus, the Crown needed to be able to point to evidence which implicated the applicant in a joint enterprise beyond the isolated event of which there was direct evidence. In the absence of being able to do so, she contended that she should be tried separately on the sole charge against her.

The applicant further contended that the trial judge failed to take into account that there was no evidence of the applicant’s presence at or encouragement of the commission of any crime apart from that with which she is charged. Accordingly, there was a real risk that the case against her, which, without the other evidence upon which the Crown sought to rely, was weak, would thereby “be made immeasurably stronger by reason of the prejudicial material”: see the third proposition stated in Middis, set out above.

In relation to the prejudice to her if she was tried jointly with the other co-accused, the applicant contended primarily that the jury would be overwhelmed by the quantity of evidence relating to the other accused and would be unable to put it to one side in considering the charge against the applicant: see Chami; Sheikh at [17]. In that context, the applicant pointed out that the evidence directly against her would take about 30 minutes in a 5 or 6 week trial.

The applicant also contended that as the applicant is the wife of one of the “main players” in the alleged joint enterprise, it would be very difficult, despite directions, for a jury to disregard the evidence in relation to him which was not admissible against her.

The Crown did not contest that the direct evidence against the applicant was confined to the intercepted messages on 24 January 2014. However, the Crown submitted that certain of the evidence not directly relating to the applicant but relating to the joint enterprise would be admissible as against her. In particular, the Crown contended that, in order to prove that the applicant was knowingly taking part in the supply of cocaine, the Crown would need to lead evidence of previous and subsequent occasions on which James Trotter supplied Jason Haidar with cocaine as well as evidence of the cocaine found in the Mascot premises. The additional evidence would also include telephone conversations in which James Trotter is alleged to have arranged the supply of drugs. In turn, those telephone conversations would introduce the relationship of James with his brother Trent and his father William. The Crown informed his Honour that it also intended to adduce evidence of the arrest of Mr Haidar and the location of cocaine in his possession on 11 February 2014, allegedly supplied to him by James Trotter on that day.

The Crown submitted that this evidence was relevant to the charge against the applicant and that the Crown would seek to adduce it regardless of whether she was tried together with the other accused or separately. However, as the evidence was common to the charges against the other persons alleged to be involved in the joint criminal enterprise to supply cocaine, a joint trial was appropriate: see the Criminal Procedure Act, s 29(2).

The Crown further submitted that as the evidence of the telephone intercepts that is alleged to directly implicate the applicant also forms the basis of a charge against James Trotter there was a risk of different and therefore inconsistent verdicts should there be separate trials.

As noted above, the Crown did not suggest that the evidence relating to the joint criminal enterprise to supply heroin would be admissible as against the applicant. However, it disputed that the mere quantity of evidence involved was relevantly prejudicial.

It must be remembered that the question whether to order a separate trial involves a discretionary determination, which only invites appellate intervention if error in the House v The King sense is established. The two specific errors identified by the applicant were a failure to take into account the terms of the SMS message from James Trotter to Jason Haidar, referred to above at [40], and a failure to address the matter of joint criminal enterprise from the applicant’s position.

In our opinion, neither error has been made out. Although the primary judge did not set out the terms of the SMS message, his Honour referred to the Crown case as set out in the revised Crown case statement. In dealing with the Crown case against the applicant, his Honour referred to the “intercept material on 24 January 2014”. It could not be contended that his Honour referred to that material without intending to refer to its content. As for the second error, his Honour expressly addressed the material upon which the Crown proposed to rely to establish the joint criminal enterprise and the applicant’s involvement in it.

The applicant has failed to demonstrate any error in the primary judge’s discretionary determination.

We also do not consider, having had regard to the evidence that the Crown proposes to adduce against the applicant, that the failure to order a separate trial will result in a miscarriage of justice in the sense explained in the authorities to which we have referred.

There is no doubt, as the applicant submitted, that the direct evidence against her is within a very short compass. If that was the only evidence that was sought to be adduced by the Crown against her, there may have been good reason to accede to her application. However, we are satisfied that the Crown has demonstrated that, in order to prove its case on the charge against her, it will be necessary to adduce evidence which goes beyond the telephone intercepts between the applicant and her husband and between James Trotter and Jason Haidar on 24 January 2014. That additional evidence will be necessary, inter alia, to prove the nature of the substance that the applicant supplied to Mr Haidar. The additional evidence will also be relevant to the joint criminal enterprise that the Crown seeks to prove, not only against the applicant but against the other accused insofar as the joint criminal enterprise relates to the supply of cocaine: see the discussion above in Al Khair and Fattal. In that respect, it is relevant that the offences, including that with which the applicant is charged, arise out of a series of transactions between the same persons in respect of the same prohibited substance.

Accordingly, contrary to the applicant’s submission, the evidence sought to be adduced against her is more extensive than the limited evidence of the telephone intercepts on 24 January 2014. For that reason, the evidence relevant to the joint criminal enterprise to supply cocaine will not have any substantial prejudicial effect. In that regard, it is not sufficient that the evidence will be against her interest.

As indicated, it will be a matter for the trial judge to rule upon the admissibility of the evidence at trial, including as against which accused the evidence adduced is admissible. However, for the reasons expressed, the evidence upon which the Crown seeks to rely is likely to be relevant in part to prove the offence of supply with which the applicant is charged and in other respects to prove the joint criminal enterprise alleged by the Crown. As such, the applicant has failed to demonstrate that there is likely to be any miscarriage of justice if she is tried jointly with the other accused charged in relation to the joint criminal enterprise to supply cocaine.

The applicant is not alleged to be part of the joint criminal enterprise relating to the supply of heroin. To that extent, she will be involved in a trial in respect of which there will be a body of evidence which is not sought to be adduced against her. However, there was no application to sever the counts relating to the supply of heroin. The mere fact that there will be evidence unrelated to her does not of itself establish that there will be a miscarriage of justice if a separate trial is not ordered.

We also do not accept the applicant’s submission that the present case is analogous to Chami; Sheikh. The evidence in that case was particularly prejudicial because of its emotive nature and because of the risk that the jury would come to generalisations by reference to the common ethnicity of the accused. That is not the present case. To the extent that Chami; Sheikh is authority for the proposition that there may be prejudice in the cost of a lengthy trial on irrelevant issues, it also makes clear that that factor is of lesser importance and the applicant has not established that that aspect of the trial that does not relate to her will be overly lengthy or prejudicial to her.

Further, in this case there is a clear distinction in the two joint criminal enterprises brought against the various accused persons, one involving cocaine and one involving heroin. It was not suggested that the evidence relating to the two alleged joint criminal enterprises overlapped or overlapped in any significant way. The Court considers that this is a case where the trial judge would clearly be able to give directions to the jury appropriately dealing with any potential prejudice that might arise from the commonality of personnel involved in each enterprise.

The issues raised by the applicant were of some substance and leave to appeal should be allowed, but the appeal should be dismissed.