Di Lena v The State of Western Australia [2006] WASCA 162

Di Lena v The State of Western Australia [2006] WASCA 162 - WASCA 2006 case summary — Zoe

[181]

94 There is no difference in principle between evidence of pre-offence drug dealing and post-offence drug dealing which has the capacity to show an accused has engaged in a business of that kind. So too, evidence of participation in drug dealing after 2 June 2000 could support an inference that such was a continuation of earlier drug dealing activities. Each case, though, necessarily turns on its own facts. Unlike Beserick, where the post-offence conduct extended over some three to four years, here it covered a period of only three months, from 2 June to about 21 September 2000. Some of the conversations related directly to the conspiracy charged, in that they referred to the transaction which was the subject of it, and from which inferences could be drawn about the existence of the conspiracy and the role of the individual offender in it. The conversations were proximate in time to the offence charged and a number of them concerned it directly. Otherwise, they went to prove the appellant's involvement with illicit drugs, which tended to negate their claims of innocent, not conspiratorial, discussions and the intent with which they were seeking to be in possession of the drugs. The impugned evidence did have significant probative value. That was the conclusion reached by Wisbey DCJ and he was correct to reach it. His other conclusion was that the probative value of the evidence so outweighed its potentially prejudicial effect that it was admissible notwithstanding that potential. That of course was not the second question he was required to ask himself when applying the second test in s 31A. But the test his Honour did apply, was more stringent than that in s 31A(2)(b) and it follows that his conclusion would necessarily have been the same had he considered it in the terms of that subsection. Given the significant probative value of the drug dealing evidence, there could have been no conclusion other than that fair-minded people, comparing that significant probative value to the degree of risk of an unfair trial, would think the public interest in adducing all relevant evidence of guilt must have priority over that risk. I reiterate, this is not a matter of discretion, so that once that finding is made, the evidence must be admitted. In respect of Di Lena there was, accordingly, no miscarriage of justice. I would not uphold ground 1 on his account.

[225]

"The state [sic] refers to a call on 30 May between Wash [sic] and Tippett where Washer indicated that he was - had to leave in a hurry for a trip to Brisbane. He says that the recorded conversations, some of them between Washer, Whitsed and Bowles evidence of drug dealing by Washer. Whilst I have mentioned Whitsed and Bowles, reference has been made by counsel to them, you are not to involve yourselves in speculating about Whitsed and Bowles. Your task is to address the indictment that is presently before you and the people on that indictment.

If the state [sic] says that the recorded conversations are indicative of drug dealing by Washer, if you are satisfied that that conclusion could be reached, as I said to you its use would be limited to considering the question of his intent if and when he possessed the methylamphetamine, if you are satisfied that he conspired to possess it. You may recall that the state [sic] referred to a conversation recorded on 3 June 2000 between Washer and Whitsed, number 7 on the schedule of calls, which the state [sic] says is eloquent of Washer's involvement with drugs and where he makes reference to the fact that he had given 55,000 up-front and should be going over east to see what is going on.

The state [sic] says that this is confirmatory of his involvement in the conspiracy. He goes on to talk about warning to stay small and he only wanted a pound at the time. The state [sic] says that the reference to 55,000 sits fairly easily with the evidence of Steel concerning the price of this type of substance. In a recorded conversation between Washer and Bowles on 3 July, he makes derogatory reference to a John. The state [sic] would suggest it's a reference to Di Lena and was made because of what had happened concerning the drug deal.

In a further recorded conversation on 7 July between Washer and Bowles, Washer makes reference to a John coughing up with the cash. The state [sic] would [sic] says the 55,000 and suggests that he is the one who is going to have to go over. Generally the state [sic] says that the recorded conversations properly interpreted, contain admissions by Washer of an involvement in the attempt to obtain the methylamphetamine in combination with Di Lena and the state [sic] further says that there is evidence of his involvement in drug dealing which is indicative of an intent to sell or supply."

[237]

"SCUDDS, MR: Mr Washer and the other two gentlemen were charged in relation to those calls, that they were involved in a conspiracy to possess methylamphetamine with intent to sell or supply. He was acquitted of that charge. Otherwise the jury will simply think that it's sitting out there and the allegation is that he's involved in drug conversations with those two gentlemen, and with all respect he should be given the full benefit of the acquittal. It's as simple as that.

WISBEY DCJ: He has got the full benefit of the acquittal because this case is nothing about that.

SCUDDS, MR: Well, it is. In this case they say that that is not an innocent association, that's what the crown [sic] position is in relation to this matter, and those conversations do not involve Mr De Lena [sic], they involve Mr Washer, Mr Whitsed and Mr Bowles.

WISBEY DCJ: Yes, Ms Barbagallo?

BARBAGALLO, MS: Thank you. Your Honour, my respectful submission is the jury's version or jury's decision in relation to those calls on a different charge at a different time and a different place, different everything, cannot conceivably be relevant to this jury. What another set of people thought about another conspiracy involving three other people is just irrelevant. I mean, it's a conspiracy. A jury could have returned a verdict of not guilty based on the fact that they didn't think they were in an agreement; not that they weren't involved in drugs, they weren't in an agreement.

Can I just add this to my submission: if these calls could in any way be argued inadmissible or having no weight due to some previous jury verdict then they should never have been put before this jury and in fact my learned friend argued that. Your Honour did not find favour with that submission properly for the reasons that your Honour ruled in their admissible [sic].

SCUDDS, MR: Sir, I refer you to the case of Storey which is a similar situation where the [sic] was the fact of a prior incidence and then an allegation of forcible removal and then an allegation of rape, and the fact that the matter was raised in relation to the forcible removal. I would have thought that it is relevant that in fact they're acquitted of that charge. That's my respectful submission.

BARBAGALLO, MS: Is that a New South Wales decision?

SCUDDS, MR: I believe it's a High Court decision.

WISBEY DCJ: In my view it is not appropriate to ask this witness about another charge and the outcome of that other charge.

SCUDDS, MR: If your Honour pleases. ..."

[266]

"[L]ogically there are two steps to be taken considering a conspiracy case. The first step is to consider whether you are satisfied beyond reasonable doubt that there was a conspiracy; that is, you have to be satisfied that at least two of the accused entered into an agreement to do an unlawful act; that is, to possess methylamphetamine with an intent to sell or supply it to another or others.

The second step, if you are satisfied that a conspiracy existed, is to consider separately the case relating to each accused; that is, to consider whether you are satisfied beyond reasonable doubt that the particular accused whose case you are considering was a party to the conspiracy. So to deal more fully with what I have just outlined, the first step the prosecution must take is to establish a common design, a combination or conspiracy; that is, a common agreement. The second step it has to take is to prove the participation of each accused in that common design, combination or conspiracy.

So the first step is to establish that there was a common design, combination or a conspiracy. The second step is to prove the participation of each accused in that common design and if you follow that twofold approach, it is unlikely that you will go wrong. The first question you must ask yourselves is whether the fact of a conspiracy has been satisfied. As I say, if you are satisfied that a conspiracy existed, then you go on to determine the participation or the extent of that participation, if any, of each accused in the conspiracy.

In considering the threshold question of whether a conspiracy has been established and then the further question of the extent of the participation, if any, of each of the accused in that conspiracy, you may rely upon two branches of evidence. In the first place, you can rely upon the evidence of the acts and statements of the accused whose case you are considering. In the second place, you can rely upon the evidence of the acts and statements of a co-accused from which the conclusion that there was a common design can be drawn. Although the separate acts and statements of each accused may be relevant only to the case against the individual, the collective acts of all three accused may in combination point to a common design, combination or conspiracy.

Upon a charge of conspiracy obviously proof may well consist in evidence of the separate acts of the individuals charged which, although separate acts, point to a common design, and when considered in combination, justify the conclusion that there must have been a combination or agreement as alleged in the indictment. Where the separate acts of the accused persons collectively point to a common design on the part of all or some of them those separate acts may be relied upon to establish the fact of a conspiracy.

So in deciding the first threshold question of whether the fact of a conspiracy has been proved you should consider the separate acts of each accused in examining the case against that person, and if necessary, the collective force of the separate acts of all three accused which may, when looked at together, point towards a common design. Assuming you are satisfied that there was a common design for conspiracy between at least two accused persons then you have to determine the second issue, namely, the involvement, if any, of each of the accused in the common design.

Once again, you take into account the separate acts of each accused, including in the case of the accused whose position you are considering, his or her acts post 2 June 2000. When considering that person's involvement you also take into account the collective force of the separate acts of all other accused persons before 2 June which may point to the participation of one or more of them in the common design you find proved. ..." (Emphasis added)

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Di Lena v The State of Western Australia [2006] WASCA 162 (14 August 2006)

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Cases Cited (34)