R v Dinh and Le[2015] QSC 282

SUPREME COURT OF QUEENSLAND

1. In this matter I heard three applications pursuant to s 590AA of the Criminal Code.  The applications were related to each other and, to ensure consistency, it was convenient to deal with them together.  The applications were as follows:

1. the Crown applied to lead similar fact evidence in the trial of Le;
2. Dinh had an application that, notwithstanding the similar fact evidence sought to be led by the Crown was excluded, she wanted to adduce evidence like it;

3.  Le then made application for a separate trial (s 597B of the Criminal Code) in the event that Dinh was allowed to call evidence of the type outlined at (b) above.

Application to Adduce Similar Fact Evidence

2. Dinh and Le are both charged on the same indictment with possessing a dangerous drug, heroin.  In addition, Le only is charged with receiving stolen property.  So far as the drug offences are concerned, s 129(1)(c) of the Drugs Misuse Act 1986 (Qld) is to be relied upon by the Crown:

“proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person’s possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place; …”

3. The evidence which the Crown will lead at trial is that police executed a search warrant at a house shared by Le and Dinh during which three plastic bags containing powdery white rock were found in a vent on an exterior wall of the house.  An Officer Thomas will give evidence that one of the bags contained five individual rocks, each in its own plastic bag.  Another bag contained eight individual rocks, each in its own bag.  The largest of the bags contained one rock in its own individual bag.  That is, there were 14 individual bagged amounts.  An analyst’s certificate will be tendered to show that each of the five rocks found together weighed 3.5 grams, and each of the eight rocks found together weighed 1.75 grams, except for one which weighed 2.118 grams.  So that the two smaller bags weighed 20.6 grams each; the other bag weighed 29.4 grams.
4. Le and Dinh both denied knowledge of the substance.  Le and Dinh lived in the house with Dinh’s adult children and their partners.
5. In relation to the receiving charge, the Crown relies upon computers hidden inside the house.  I was informed from the bar table that Mr Le intends to plead guilty to that charge.
6. The evidence which the Crown submitted was similar fact evidence comes from an investigation, conviction and plea in 2002.  The plea was by Le, and was to possessing heroin.  The Crown wishes to call the police officer involved in the 2002 investigation, Officer Durre.  He searched a duplex occupied by Mr Le and his then girlfriend.   In that search white rock substance in a plastic bag was located inside a rice container in a kitchen cupboard, and a brown cello-taped wrapped block, 12 cm x 10 cm x 2.5 cm was found on top of a wardrobe in the spare bedroom.  The block contained compressed white powder which was 22.4 per cent heroin.  The bag in the rice container contained a substance which was 15.9 per cent heroin.  The total weight of the block was 351.8 grams and the total weight of the powder in the rice container was 28 grams.  In total a weight of 83 grams of pure heroin was found.  At the time Officer Durre asked Mr Le about the substances and he denied any knowledge of them.
7. The Crown said this was similar fact evidence because both in 2002 and 2014 there was drug offending involving the possession of heroin.  In both cases there were attempts to conceal heroin about a residential home occupied by Mr Le, and the drug was packaged on both occasions.  On both occasions, when asked to explain the presence of the drug in the house, Le denied knowledge of the drug. 
8. In addition, the Crown wish to tell the jury that Mr Le was convicted on his own plea on 30 July 2003 of possession of 83 grams of heroin found at the premises of which he was the occupier.  And that that plea was made on the basis that he had reason to suspect the drugs were in that place.  The Crown accepted that the jury would have to be told that the 2002 plea and conviction were not to be used as evidence that Mr Le owned the 2002 drugs; stored the 2002 drugs, or even that he knew the 2002 drugs were hidden where they were found, just that he had reason to suspect that the 2002 drugs were on the premises.^[1]
9. The High Court examined the principles applicable to the introduction of propensity or similar fact evidence by the Crown in the case of Pfennig v R.^[2]  The judgment of the majority traces the law from Makin v Attorney-General (NSW).^[3]  Some of those statements I find particularly illuminating in respect of the question raised by Dinh’s application (see [1(b)] above) and I will return to them below.  For the purpose of the Crown’s application, however, it is sufficient to refer to the parts of the majority judgment at pp 480-483, where it was stated that:

“… the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged.  In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged. …

This passage should not be understood as asserting that ‘striking similarities’ or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case.” – p 481-482.

10. Later, as to the necessity for striking similarity or other such characteristics, the majority said, “Acceptance of the statement of principles stated above means that striking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics.” – p 484.
11. In this case the prosecution is not relying upon what it says is similar fact evidence to prove the case against Le; it relies upon it to rebut a defence which it anticipates he will run.  At pp 475-476 the joint judgment in Pfennig discusses what it calls the second principle from Makin – that propensity evidence which is relevant may be adduced to rebut a defence.  I do not discern from the majority judgment any separate or different test applying where the Crown seeks to lead evidence to rebut a defence.
12. In this case there is no strikingly similar fact or unity of offending apparent from the evidence which the Crown wishes to adduce.  The evidence is that 12 years previously, when living with a different person, Le was living at a house where he had reason to suspect there were drugs.  The drug is the same in each case – heroin.  But the drug was wrapped differently in each case.  It was divided differently in each case, in particular in the 2014 offending the drug was in small saleable quantities, where it was not in the 2002 case.  The drugs were hidden in different parts of the house in each case. 
13. The fact that Le denied knowledge of the drug in each case, in bland terms, could not be said to be distinctive or strikingly similar.  At one point in the 2002 record of interview, Le says that he was surprised when the police found the drug at his girlfriend’s house.^[4]  This is the only part of his denials to police in 2002 which is arguably inconsistent with the basis of his plea.  The other denials in 2002 were not denials which were inconsistent with the plea entered in respect of that offending, so that the Crown could not use the 2002 denials as evidence of a propensity in Le to falsely deny offending when confronted with evidence of it.  I am not persuaded that the one comment as to surprise changes this position.  The 2002 denials do not render it objectively improbable that his denials to police in 2014 were untrue, to adopt the words from Hoch v R^[5] cited at p 482 of Pfennig.
14. More fundamental than the factual differences outlined above, is the fact that the plea in the 2002 case could not be any evidence that Le owned, stored or knew of the drug in 2002, so that even if the method of packaging, storing and denying knowledge of the drug were similar, there are substantial logical limits to its use against Le because there is no evidence that it was his method of owning, packaging or hiding the drug used in 2002.  It could not be used against him as evidence of a system, or way of conducting himself, as regard to the possession of drug.
15. In my view, the evidence which the Crown seeks to adduce is weak in its probative force, and the risk that the jury would use it improperly, even properly warned, would be unacceptably high.  I think the risk of the jury over-estimating the significance of the evidence is made greater by the fact that the so-called similar fact evidence would be of about the same compass as all the other Crown evidence in total.   My ruling then is that the evidence which the Crown seeks to rely on as similar fact evidence should not be admitted. 

Application by Dinh to Adduce Evidence of Le’s Past Drug Offending

16. Dinh applied to lead evidence of the 2002 offending by Le, and also of offending by Le dealt with in the Magistrates Court on 24 March 2015.  That latter offending was a plea of guilty to the charge of possessing heroin on 3 November 2014 in an amount of 2.483 grams.  The drug was hidden in Le’s underwear.^[6]  Dinh contended that she would explore the facts of the 2002 offending as were apparent from the sentencing remarks, and challenge the basis of the sentence.  It was not outlined how that latter objective would be achieved.  But in any case, Dinh’s objective at trial is to introduce all the available evidence as to Le’s previous offending involving heroin.  The evidence as to Le’s prior involvement with heroin is relevant to who owned and stored the heroin at the house Dinh and Le shared.  Dinh wants to argue that this evidence shows it was much more likely to be Le’s heroin than Dinh’s, and that was the evidentiary substratum upon which the jury would be asked to believe that Dinh had no knowledge or suspicion of the presence of the drugs in the house.  Other relevant evidence was that Dinh has no history of offending in relation to heroin.  The police came with a search warrant naming Le, not Dinh.  They gave the warrant to Le on their arrival, not Dinh.  Further, Dinh wishes to rely upon Le being charged with the receipt of stolen property found hidden in the house.
17. Counsel for Dinh conceded that the evidence he sought to adduce on behalf of his client did not amount to evidence which would meet the Pfennig test for relevance and admission of similar fact evidence.  He contended that it was unnecessary for a co-accused to meet that test in circumstances such as this: where Dinh sought to use the evidence to convince the jury that probably she did not know of, or suspect, the presence of the heroin at the house.
18. This point was considered in R v Roughan & Jones.^[7]  Roughan and Jones were both charged with the murder of the deceased man who died in their company.  The deceased man was stabbed.  At the time of the offence, and at the time of the trial, Roughan had been charged with attempted murder, the facts of which involved him having “stabbed a mate with a knife”.  Roughan and Jones were tried together and counsel for Jones was permitted to cross-examine a police officer to confirm that fact.  During this cross‑examination counsel for Jones sought to elicit more details of the stabbing giving rise to the charge.  But the trial judge ruled that the questions could only be designed to elicit hearsay.  There was no challenge to this ruling.  There was no attempt by Jones to elicit the details of the stabbing charge in any different way, for example by calling the complainant.
19. Jones’ principal submission on appeal was that he was prevented from establishing that Roughan had in fact attempted to murder a friend by stabbing him.  It was said on appeal that that evidence was relevant to show that it was more likely than not that it was Roughan who struck the fatal blow.  The decision of the Court of Appeal was that the trial judge had made no ruling which precluded any attempt to lead such evidence, say from the complainant in respect of the stabbing charge.  The only ruling which had been made was to prevent further cross‑examination to elicit hearsay.  It was held that that ruling was correct – [73].  The comments of the Court of Appeal as to allowing evidence about the disposition or propensity of a co-accused must therefore be regarded as obiter. 
20. Keane JA (as he then was) was against allowing such evidence unless it met the criteria for relevance established in Pfennig.  He said:

"[69] These authorities support the general proposition that evidence showing a disposition or propensity for a co-accused to act in a certain way may be tendered by a co-accused to disprove his or her guilt. Where one or other of the co-accused must be the offender, evidence which tends rationally to show that the character and personality of one of the co-accused is such that he, rather than the other, is the guilty man will be admissible. Thus, in R v Mason and Priestley, Williams J (as his Honour then was) said of Lowery v The Queen that it:

‘establishes that if evidence tends to support the contention that one of the two accused persons alone committed the offence, it may be led as part of the case of the defendant who would thereby be exonerated, notwithstanding the fact that it really does no more than show that the other accused had a disposition or propensity to commit that particular crime … it is important to remember the peculiar circumstances on which the decision in Lowery was based; the killing was a particularly sadistic one and psychological testing indicated that one of the two accused persons had sadistic tendencies – that was therefore a relevant matter for the jury to know when they were deciding whether either or both of the accused persons was guilty of the crime.’

[70] It may, therefore, be accepted that evidence which shows a disposition or propensity of a co-accused to do the very sort of thing with which the accused are charged is not to be excluded for the reasons of policy or fairness which prevent the deployment of such evidence by the Crown.

[71] In Lowery v The Queen, the evidence showing criminal propensity was the opinion of an expert. In other cases the evidence said to demonstrate criminal propensity may involve proof of similar facts. Where it is sought to prove criminal propensity by proof of similar facts, as Connolly J, with whom Williams and Ambrose JJ agreed, said in R v Livingstone: ‘as with all similar fact evidence the occasions for its admission will be rare.’

[72] In a case such as the present where the evidence relied upon to show a co‑accused’s propensity is evidence of similar facts, those facts must exhibit the kind of ‘striking similarity’ which makes it probable that the co-accused committed the crime with which he and the co-accused are charged. In terms of the factual basis for the argument advanced on behalf of Jones, the evidence that Roughan had been charged with the stabbing of a mate was not itself apt to prove anything at all in relation to whether or not Roughan had a disposition to violence, much less that his disposition made it more probable that it was he rather than Jones who fatally stabbed the deceased.

[73] In this case, there is no evidence that the actual circumstances of the earlier stabbing were so strikingly similar as to render evidence of the earlier stabbing by Roughan admissible in the case concerning Jones for the purpose of showing that Roughan was more likely to have fatally stabbed the deceased than Jones. …” (footnotes omitted; original emphasis).

21. McMurdo J came to the opposite conclusion.  He said:

"[101] Jones complains that he was not permitted to explore the details of the other charge against Roughan. His real purpose in that was to endeavour to strengthen his ultimate argument about Roughan’s propensity. He was not wanting to prove further matters which were within his knowledge at the relevant time. The learned trial judge rightly held that such further cross‑examination of Detective Williams should not be permitted, because it would not be relevant to Jones’ state of mind, and it was hearsay as to the facts upon which the charge had been brought.

[102] It was open to Jones to lead evidence of Roughan’s propensity by reference to this other charge. In particular, Jones could have called the complainants in that matter in an endeavour to prove the facts upon which that charge was based. I agree with Keane JA that Jones could have led evidence of the propensity of Roughan which would not be admissible if led by the prosecution in its case against Roughan. However, I would not accept that in this context the propensity of a co-accused would have to be the subject of evidence showing some striking similarity between the other matter and the present charge, or that, for example, it would have to bear any other characteristic as described in the joint judgment of Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen. So in Lowery v The Queen, an accused was permitted to lead evidence of the propensity of the co-accused, not by similar fact evidence, but by a psychologist’s evaluation.” (footnotes omitted).

22. Speaking of this same point in relation to other evidence, McMurdo J concluded:

"[106] Jones does complain about the trial judge’s refusal to allow his counsel to explore the matter of CDs found in Roughan’s bedroom. This was said to be relevant to the proof of a propensity of Roughan to be violent. The trial judge ruled that there could be no probative value in this evidence. The defence proposed to prove by cross-examining a detective that at Roughan’s place were found about 90 CDs, almost all of which had subjects like ‘Death’, ‘Violence’ and ‘Killing’. In my view, the trial judge should have allowed this evidence. It had some relevance to the question of Roughan’s propensity to violence, a question properly arising in Jones’ case. The fact that Roughan was also being tried was not a basis for excluding or limiting this evidence. This was not a balancing exercise for the trial judge and nor did her Honour so rule. It was simply considered to be irrelevant. In my respectful view it was relevant and it was for the jury to consider what they made of this evidence. …” (original emphasis).

23. Muir JA agreed with both Keane JA and McMurdo J except on this point, as to which he said, “… I do not find it necessary, however, to express a view on whether, in a case such as this, the general principles governing the admissibility of similar facts as evidence of a co-accused’s propensity to commit a crime of the nature of the subject crime are always applicable without qualification.” – [88].
24. Jones appealed to the High Court.^[8]  The High Court did not determine the point which I must determine in this case saying, “As the admissible evidence of Roughan’s propensity which the appellant claims to have been prevented from adducing is unknown, this appeal does not provide the occasion to consider the principles discussed in Randall.” – [22].  Nonetheless, the Court did make the following comments:

"[21] In Pfennig v R … a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they raise the same considerations in terms of admissibility was noted. It was explained that the requirement that evidence of similar facts when adduced by the Crown possess a ‘striking similarity’ is because the capacity of the evidence to establish a step in the proof of the prosecution case on the criminal standard depends upon the improbability of its having some innocent explanation. The appellant was not seeking to adduce similar fact evidence to prove Roughan’s guilt by a process of improbability reasoning. He was seeking to demonstrate that Roughan was a person having a particular propensity which made it more likely that Roughan had killed the deceased, as the appellant claimed that he had done. The issue which appears to have troubled Keane JA was whether evidence of some general propensity in Roughan to behave violently had a capacity rationally to bear on the determination of the likelihood that it was he who carried out this murderous assault.

[22] … It is trite to observe that all evidence, including that adduced by an accused in order to raise a doubt as to guilt, must be relevant in the sense that it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. At the trial, in the course of the submissions made prior to the initial ruling, the appellant’s counsel identified the propensity which he sought to establish as ‘a propensity to violence’. On the appeal senior counsel identified it with greater particularity, as a propensity to form an intention to kill and to use a knife to give effect to that intention. Accepting for present purposes, that proof that Roughan was a person with a propensity to have this state of mind and to act in this way, may support a reasonable possibility that the appellant’s account (given in his interview with the police) was true, the fact remains that counsel did not seek to adduce admissible evidence that Roughan had such a propensity.” (footnotes omitted, my underlining).

25. As noted earlier, I think that some of the statements in Pfennig bear upon this question.  In particular, when discussing the history of the similar fact rule, the majority in Pfennig extracted passages from Cross LJ’s judgment in Reg v Boardman.^[9]  The High Court said this:

“Lord Cross of Chelsea, who reflected the majority view in Boardman, observed that the reason for the general rule of exclusion in relation to propensity evidence is:

‘not that the law regards such evidence as inherently irrelevant but that it is believed that if it were generally admitted jurors would in many cases think that it was more relevant than it was, so that … its prejudicial effect would outweigh its probative value.  Circumstances, however, may arise in which such evidence is so very relevant that to exclude it would be an affront to common sense.’

…” – p 478. (my underlining).

26. The High Court also extracted what the majority referred to as the second principle from Makin:

“The second principle was that ‘the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused’.  It is evident that there was an element of tension between the two principles as thus stated.  That tension was partly due to the ambiguity inherent in the use of the word ‘relevant’.  The second principle, as expressed by Lord Herschell, seemed to imply that propensity evidence was not as such [ir]relevant to the determination of the crime charged, rather that it was relevant to that determination but inadmissible for some overriding policy reason, i.e., that in many cases its prejudicial effect would outweigh its probative force.” – pp 475-476. (my underlining).

27. Lastly the Court in Pfennig cited the passage from Hoch v R (above):

“Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force … That strength lies in the fact that the evidence reveals ‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.” – p 482.

28. I think it is important that these judgments acknowledge that propensity evidence is not irrelevant, but that it is usually excluded because its prejudicial value is greater than its probative value.  The Court in Pfennig described similar fact evidence as “a special class of circumstantial evidence” – p 482.  When viewed in that way, it is logical that it will not be admitted unless logic or experience necessitate the conclusion that it clearly points to the guilt of the accused – Pfennig p 482.  All that is in the context of the evidence being used by the Crown to prove a case beyond reasonable doubt.  Where the Crown puts a case before a jury which is entirely, or almost entirely, circumstantial the jury is told that they cannot bring in a verdict of guilty unless the inference is not just a reasonable one from the evidence, but the only reasonable inference.  It is in this context that the test for the Crown’s adducing similar fact evidence is high, in similar terms to this standard direction.
29. However, when one co-accused wishes to introduce evidence of propensity on the part of the other co-accused, that evidence is not being led to establish the guilt of the second co‑accused.  Unless statute otherwise provides (as here), it is not even being led to establish the innocence of the accused; it is being led to raise a reasonable doubt in the minds of the jury.  In this case, because of s 129(1)(c), the purpose of the evidence is to prove on the balance of probabilities^[10] that Dinh neither knew, nor had reason to suspect, the drug was in her house.  The evidence is relevant to that issue.  In my view, having regard to the purpose for which it is sought to be led, that is a sufficient basis for its admission.^[11]  Questions as to its prejudicial value do not arise.  Considerations as to whether the inferences which can be drawn from it are the only rational inferences available do not arise, so that the high test for admission of similar fact evidence is not appropriate.^[12]  Accordingly, my ruling is that the evidence which Dinh seeks to lead in her case is admissible.

Separate Trials

30. In Jones v R (above) Hayne J warned that “the adducing of evidence by one co-accused about the propensities of another co-accused presents real difficulties for the conduct of a trial, especially a joint trial.” – [37].  It appears that his Honour was mostly concerned with questions of the trial becoming diverted by collateral issues.  However, there is a good deal of case law dealing with the difficulty which the admission of propensity evidence by one co-accused causes in terms of prejudicing the fair trial of the other co‑accused.^[13]
31. It may be accepted that generally speaking co-accused defendants ought to be tried together, particularly if one or both of them seeks to contend that the other is the offender.^[14]  There are compelling matters of public interest and common sense militating in favour of one jury hearing and determining all the conflicting evidence.  However, in some cases where one co-accused contends that the other co-accused is more likely to be the guilty party, and relies on propensity evidence to prove this, it can be impossible to give the jury sensible directions about the use they may make of the propensity evidence.  The directions extracted at [58] of the appeal decision in R v Roughan & Jones, and the directions extracted at [72] of Russell v Western Australia, clearly illustrate these difficulties. 
32. In Winning (above) Olssen AJ said:

"[42] In the event that an accused seeks to lead propensity evidence against a co-accused which, of its nature, is such that no directions of a trial Judge would be adequate to ensure that a jury could be expected to perform ‘the remarkable mental feats required of them’, the appropriate course is to direct a separate trial of the co-accused, however inconvenient that may be (R v Gibb & Anor [1983] 2 VR 155 at 165-166; see also R v Demivrok [1976] VR 244).”

33. Keane JA referred to this passage in R v Roughan & Jones.  He thought a sensible direction in that case would not have been possible:

“… it is to require the jury to perform the kind of ‘remarkable mental feat’ deprecated in the passage from Winning v R cited above, to direct them that the evidence may be used to confirm that the jury ‘might think that Jones was of a less violent disposition than Roughan’ but not that Roughan ‘is the sort of person likely to have committed the offence’.  The distinction being drawn here is so fine as to be illusory.  If Jones is less violent than Roughan, and one or other of them killed the deceased, then the only relevance of the fact that Jones was of ‘a less violent disposition’ is that Roughan, having the more violent disposition, is more likely to have been the killer.” – [59].

34. In R v Gibb & McKenzie^[15] the Full Court of the Supreme Court of Victoria ordered separate trials in circumstances where propensity evidence was admissible by one co‑accused against the other:

“… the course the trial took and in particular the evidence to which we have referred was so prejudicial to Gibb, and prejudicial to him in a way that would not have been possible if he had been tried separately, that we are called upon to weigh that prejudice against the matters of public interest referred to in R v Demirok [1976] VR 244, at p 254.  The length of the trial has underlined the significance of those matters.  If ever the power referred to in that case is to be exercised this seems to be the occasion for it.  The combination of circumstances was most unusual but in the balance between the public interest and a fair trial for Gibb we think that the scales come down in favour of Gibb.”^[16]

35. No doubt the facts of each case will determine whether the discretion to order a separate trial ought to be exercised.  I note that a case of R v Murrell^[17] was discussed by Buss JA in Russell v Western Australia – [325] ff.  That was a case where one co-accused introduced (it was held correctly) evidence of another co-accused’s prior convictions for importing illicit drugs.  Both accused faced a charge of conspiracy to import an illicit drug.  In that case it was found that an appropriate direction was able to be given “without causing perplexity to the jury” – [29].  In Russell v Western Australia it was found, that on the facts in that case, no appropriate direction could overcome the prejudice, so that a separate trial was necessary – [399] and [379]; Mazza J having discussed the separate trial principles at [419] ff. 
36. In this case my view is that there ought to be separate trials.  The evidence which I have ruled admissible in Dinh’s case is prejudicial to Le and I cannot see that a direction would be adequate to remedy this prejudice.  The jury would be told that they could use the evidence of Le’s past offending and drug use in considering whether the heroin found hidden at the house belonged to Le, and that Dinh did not know of it.  But, on the other hand, they could not use the evidence of Le’s prior convictions to reason that he was guilty of the offence charged.  I do not see how a jury could sensibly apply such a direction.  Further, in this case the large proportion of trial‑time which would be taken up in proving Le’s past convictions and drug use, compared to what would otherwise be a short Crown case on the basis of the evidentiary provision at s 129(1)(c) of the Drugs Misuse Act, would very much increase the prejudice which Le would suffer.  I therefore order that Dinh and Le be tried separately.

Appeal Costs Certificates

37. Le asked for a certificate under the Appeal Costs Fund Act 1973 and Dinh joined in this application.  The argument was that the matter was set down to commence as a trial on 7 September 2015, but that trial could not go ahead because the Crown raised its application for similar fact evidence on that day.  That in turn resulted in both Le and Dinh making their respective applications.  Thus it was said that, pursuant to s 22(1)(c), the hearing of the trial had been discontinued and a new trial ordered, and that was not attributable to the fault of the defendants.
38. In my view that argument must be rejected.  The trial of the matter did not begin on 7 September 2015 – Le and Dinh were not arraigned – see s 597C(3) of the Criminal Code.  I therefore think that within the ordinary meaning of the terms, the trial did not commence and was not discontinued.  Nor do I think that a new trial was ordered.  I adjourned the trial.  A new trial date will eventually be allocated by the criminal list manager, but there is not in any real sense a new trial. 
39. Further, in the case of Dinh, the application to adduce evidence in her case ought to have been made prior to trial (see s 590AA of the Criminal Code) and was not.  Thus, I do not think the fact that the trial could not go ahead was without fault of that defendant.  Indeed, it seems that some of this fault must be shared by Le.  The same solicitors instructed counsel for Le and Dinh and thus it appears that both Le and Dinh ought to have anticipated that the applications each of them made should have been made before the trial.