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[2006] WASCA 162
Court of Appeal (WA)
2006-08-14
Wheeler JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DI LENA -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 162
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Appeal - Criminal law and procedure - Evidence - Conspiracy to possess methylamphetamine with intent to sell or supply - Evidence of drug dealing after termination date of the conspiracy - Whether admissible - Propensity evidence - Section 31A Evidence Act 1906 (WA) - Purpose for which evidence admitted - Intent to sell or supply - Whether intent in issue
Criminal law and procedure - Appeal - Evidence - Evidence led at trial same as that led on earlier trial for different offence - Accused acquitted on earlier trial for different offence - Accused acquitted on earlier trial - Whether evidence admissible - Trial Judge refusing to allow appellant to adduce evidence of earlier acquittal - Whether trial Judge required to give jury direction on effect of earlier acquittal - Whether miscarriage of justice
Criminal law and procedure - Conspiracy - Direction to jury - Whether direction that jury may have regard to the collective force of the separate acts of coconspirators in determining an accused's involvement or participation, a misdirection
Criminal law and procedure - Summing up - Conspiracy - Recordings from listening devices and telephone intercepts after termination date of conspiracy - Whether "consciousness of guilt" direction required
Evidence Act 1906 (WA), s 31A, s 32
Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87
Atholwood [2000] WASCA 76; (2000) 110 A Crim R 417
Boardman v Director of Public Prosecutions [1975] AC 421
Director of Public Prosecutions v P [1991] 2 AC 447
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437
Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590
Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202
Melrose v The Queen [1989] 1 Qd R 572
Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Pfennig v The Queen [1995] HCA 7; (1994) 182 CLR 461
R v Beserick (1993) 30 NSWLR 510
R v Best [1998] 4 VR 603
R v Christie [1914] AC 545
R v Franklin [2001] VSCA 79; (2001) 3 VR 9
R v Morgan, unreported; CA SCt of Vic; 13 August 1996
R v Shaw [1996] 1 Qd R 641
R v Storey [1978] HCA 39; (1978) 140 CLR 364
R v Sutton (1986) 5 NSWLR 697
R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412
R v White [1998] 2 SCR 72
Rogers v The Queen (1994) 181 CLR 251
Rogerson (1992) 65 A Crim R 530
S v The Queen [1989] HCA 66; (1989) 168 CLR 266
Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528
Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1
Washer & Ors v The State of Western Australia [2005] WADC 36
Wood v The State of Western Australia [2005] WASCA 179
Zoneff v The Queen (2000) 200 CLR 234
AlHashimi v The Queen [2004] WASCA 61; (2004) 145 A Crim R 186
Avis v The Queen [2002] WASCA 250
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Connell v The Queen (No 6) (1994) 12 WAR 133
Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Kwan v Kang [2003] NSWCA 336
Lyons v The Queen (1992) 1 Tas R 193
Makin v AttorneyGeneral (NSW) [1894] AC 57
O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566
Phillips v The Queen [2006] HCA 4; (2005) 80 ALJR 537
Punevski v The Queen [2000] WASCA 71
R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700
R v FJB [1999] VSCA 90; [1999] 2 VR 425
R v H [1995] 2 AC 596
R v Lavender [2005] HCA 37; (2005) 79 ALJR 1337
R v Nieterlink (1999) 76 SASR 56
Re Queen's Case [1820] EngR 563; (1820) 2 Brod & Bing 284
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458
W v The Queen [2001] FCA 1648; (2001) 189 ALR 633
WK v SR (1997) 22 Fam LR 592
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Roberts-Smith JA. I agree with those reasons and have nothing to add.
2 ROBERTS-SMITH JA: These two appeals were heard together, the appellants having been jointly convicted on 23 March 2005 following trial before Wisbey DCJ and a jury in the District Court at Perth, on one count that between 18 May and 2 June 2000 at a place or places unknown in Western Australia, they conspired with each other and one Andrea Scott to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another contrary to s 6(1)(a) and s 33(2)(a) of the Misuse of Drugs Act.
3 The appellant Washer ("Washer") has six grounds of appeal; the appellant Di Lena ("Di Lena") has four grounds of appeal, but they are identical to Washer's grounds 1, 2, 5 and 6.
4 The grounds of appeal are that the Judge erred in law by:
"1. ... admitting evidence of the appellant having dealt in drugs after the alleged conspiracy had come to an end on 2 June 2000, thereby giving rise to a substantial miscarriage of justice.
2. ... failing to direct the jury that they should ignore evidence of the appellant having dealt in drugs after the alleged conspiracy had come to an end on 2 June 2000, thereby giving rise to a substantial miscarriage of justice.
3. ... failing to allow the appellant to lead evidence of his having been charged and acquitted of conspiring to possess drugs with the intent to sell or supply between 13 April 2000 and 21 March 2001, in circumstances where evidence relating to that conspiracy charge was led in the instant trial of the appellant as proof of relationship and/or the possession with intent to sell or supply the drugs in question thereby giving rise to a substantial miscarriage of justice.
4. ... failing to direct the jury that they were bound to give the appellant the full effect of his acquittal of the offence of having conspired to possess drugs with the intent to
sell or supply between 13 April 2000 and 21 March 2001, thereby giving rise to a substantial miscarriage of justice.
5. ... inviting the jury to take into account the separate acts of each accused or the collective force of the separate acts of all other accused persons in determining the appellant's involvement or participation in the common design, thereby giving rise to a substantial miscarriage of justice.
6. ... failing to direct the jury in accordance with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 with respect to the evidence relied upon as consciousness of guilt evidence contained in listening device and telephone intercept product recorded after the alleged conspiracy had come to an end on 2 June 2000, thereby giving rise to a substantial miscarriage of justice."
5 The State case at trial was, in summary, as follows.
6 Washer and Di Lena were members of the Rebels Motor Cycle Club ("MCC") in Perth. Washer was Acting President at the relevant time. Andrea Scott ("Scott") was Di Lena's de facto partner. Washer and Di Lena had an ongoing drug dealing business, sometimes together, but also sometimes with other people. The conspiracy charged was alleged to be just part of their drug dealing business. The conspiracy was to obtain a large quantity of methylamphetamine, apparently through members of the Rebel's MCC in Brisbane, for the purpose of selling or supplying it in Perth. Di Lena was principally the organiser of the drug transaction; Washer was one of the financiers, putting in approximately $55,000; and Scott provided financial assistance by paying for the hire of a vehicle to transfer the methylamphetamine from Brisbane to Perth.
7 This particular conspiracy also involved the engagement of a courier to bring the drugs from Brisbane to Perth by car. In this case the courier was one Robert Fisher ("Fisher").
8 As a result of ongoing police investigations, the mobile phone calls of Washer and Di Lena were being intercepted and recorded, by warrant. Relevantly to this charge, Washer's calls were being monitored and recorded from mid-May 2000; Di Lena's from 10 July 2000. In addition, pursuant to another warrant, police had installed listening devices in their homes. Washer's conversations were being monitored and recorded in that way from his home at Mars Street, Carlisle from 9 June 2000. He then moved to a house in Brookvale Mews, Bullsbrook, and a listening device was installed there. Conversations between Di Lena and Scott in their house at Lesmurdie were monitored and recorded from 17 August 2000.
9 On 19 May 2000, Di Lena flew to Brisbane for the purpose of making arrangements for the drug transaction in which Fisher was to be the courier. He returned to Perth on 22 May. Once the arrangements were made, Fisher flew to Brisbane on 28 May. In Brisbane, Fisher stayed at the Airport Heritage Motel for two nights. Shortly after his arrival, Fisher made a number of phone calls, including one to Di Lena and another to a person by the name of Ian Farber ("Farber"). Farber was also an associate of Di Lena's.
10 On 30 May, Fisher's then girlfriend, Pauline Lennon ("Lennon") flew from Perth to Brisbane to join Fisher on his trip back to Perth. That same day, Washer is recorded as saying in a telephone conversation that he was in a hurry to go to Queensland and would be gone for about a week. He travelled to Brisbane and remained there until 6 June 2000. The State case was that he had a substantial interest in overseeing the transaction in Brisbane because he had put up $55,000 for it.
11 In the meantime, Fisher had organised a hire car to travel from Brisbane to Perth. He needed someone to pay for it and Di Lena arranged for Scott to make the arrangements with a Hertz office in Perth. She provided her details to make the car booking, including her credit card details, and signed an authority to allow the hire of the car in her name and for it to be charged to her account, for Fisher to take possession of in Brisbane. The arrangement was that Fisher and his girlfriend Lennon would drive back to Perth in the car and with the drugs. They left Brisbane about 31 May 2000 with the drugs, in the hire car.
12 When they got to Coonabarabran, in northern central New South Wales, on 31 May, they had an argument and Lennon drove off in the hire car leaving Fisher behind. The drugs were still in the car. Two days later she ran out of fuel about 60 kms from Coonamble, New South Wales. Lennon was spoken to by police. They went to the car where she had left it, and on searching it they in fact found 1.96 kg of methylamphetamine taped up in a Tupperware container which was hidden in a pillow case which was in turn hidden under some towels on the front passenger seat of the car. Lennon was arrested.
13 In the meantime, Fisher had booked into a motel and was making frantic attempts to find Lennon and the drugs. On 4 June 2000 he booked into the Crystal Motel in Broken Hill. Over the next two days he made numerous telephone calls from that room to a number of people, including Di Lena and Farber. Also on that day, his motel account was paid for by another male person.
14 On 6 June he made a report to the police that the hire car had been stolen. Police subsequently made the connection between the methylamphetamine found in the hire car and Fisher, and he was taken into police custody that day. He was detained in custody in various correctional facilities in New South Wales, but for some of that time was in Silverwater Correctional Facility.
16 About two hours after Fisher was arrested by New South Wales police, Di Lena and Farber, with whom Fisher had kept in contact while he was getting the drugs, spoke to each other for some time on the telephone.
17 In mid-June 2000, having ascertained that the hire car had been booked in Scott's name, Detective Garvey of the New South Wales Police telephoned her to ask about it.
18 She admitted to Detective Garvey that she had hired the Hertz car for Fisher at the request of her boyfriend (Di Lena) but said she did not know why Fisher wanted the car. She said she had just been asked to hire and pay for it.
19 On 30 June 2000, Washer had a conversation with one Gavin Whitsed at his home in Carlisle. That was being recorded. The conversation was generally about drug dealing between Washer and Whitsed, but progressed to be specific about the failure of the Brisbane deal. In the course of the conversation Washer told Whitsed he was of the view that Di Lena ought to get on a plane to go straight over to Brisbane and sort it out immediately, particularly with that amount of money involved. Washer told Whitsed that "they" were "spinning out" over there and he thought that Di Lena was "shitting himself". He said he had given over "fifty grand upfront" and it was "killing him" at the moment and he would like to know where he stood. He said that he was covered because he paid the money up front. He said Whitsed that he believed that any money Di Lena had given "them" over east was the money Washer gave up front and that he believed that Di Lena was getting his share "on tick", (that is to say, on credit). Washer said that he was covering for Di Lena all the way and that the latter was "into him" for "nearly on sixty grand now but that will sort itself out". Washer talked about people over there "going to carry some of the loss", just from what another colleague was telling him, and said he thought Di Lena was "up for about 160 grand or something". He went on to say that he had warned Di Lena about going too big, suggesting that they only wanted one pound at a time and to pay cash so there was no comeback. Again he said that he wished that Di Lena would "get off his arse" and go and sort it out because he was making all sorts of excuses. Washer told Whitsed he was hopeful of getting half his money back, so he would only be down $25,000 and that would not be such a bad loss. He was of the view that if those in Queensland said "You cop half and we'll cop half", that would be a fair thing and that was probably what they would do.
20 On the State case the 1.96 kg was worth $200,000 to $210,000 in that form.
21 Three days later, on 3 July, Washer had another conversation with a man by the name of Bowles at his Carlisle home. On that occasion he again spoke disparagingly about Di Lena, saying that Di Lena did not know what he was doing.
22 In a recorded conversation four days after that, on July 7, Washer was heard to say that it looked like he was going to have to go over east and sort it out and suggested that Di Lena was spineless and rude. Washer said that Di Lena had not done anyone any favours and had in fact fallen out of favour with "them" (a reference the State said, was to the suppliers in Queensland). Washer said that Di Lena was supposed to and see some people, but did not get there and that he had something lined up for Di Lena to "get him out of the shit" but believed that Di Lena had "gone to water". Washer said he was not sure what Di Lena was doing but was concerned that he might just "take off" without sorting anything out. On that occasion Washer told Bowles that Di Lena was no better than "Rob that went over" (that the State said, being a reference to the courier Rob Fisher) or "that kiwi", a reference to another person. Washer said he did not know if Di Lena was going anywhere, but he might have to take a flight to Brisbane.
23 On 10 July 2000, Di Lena received two messages from men in Brisbane asking if he was coming over so that they could catch up with him. One of them was left by a man by the name of John and another call was made from a phone registered to a Bruce Cummings.
24 There was a recorded conversation at Washer's house on 11 July 2000 in which Washer and Whitsed embarked on a lengthy discussion about drug transactions within the Rebels Club in Perth, discussing in particular amounts of drugs and moneys outstanding.
25 The purpose of leading this evidence was explained by the State prosecutor in opening (at t/s 138):
"This kind of evidence about drug transactions the state [sic] says is relevant to prove a number of things: firstly, it's to prove that Washer is not talking about sand or carrots or sausages or anything innocent, he's talking about drugs; secondly, it's to show that Washer's intention or his intention when those drugs arrived in Perth, the ones from Queensland, his intention was his share of it at least was to sell or supply them as part of his drug dealing, drug making venture - sorry, moneymaking venture."
26 On 12 July 2000, police executed a covert search warrant on Washer's house. Amongst other things, that revealed traces of methylamphetamine on a set of scales and a grinder in the kitchen.
27 The following day, Di Lena spoke on the telephone to one of the men in Brisbane who had been trying to contact him three days earlier. He agreed to fly over to Brisbane in about a week's time. Also on that day he received a message to call "John" who had also been trying to contact him three days earlier. Also on 13 July, Di Lena booked two tickets to Brisbane in the false names of "Willis" and "Wilson" for he and Washer to travel to Brisbane on 19 July.
28 They were taken to Perth airport by one Mark Walker.
29 On arrival in Brisbane, they were collected in a Trans Am car registered to a John Skilton and taken to his house in Aspley, Brisbane. They were under surveillance by police.
30 Three days after that, on 22 July, Walker telephoned Di Lena and told him he had spoken to Farber who told him that "Our boy is in Silverwater and has been there for three weeks and thinks that he is being heavied". The State case was that was a reference to Fisher.
31 The following day, Di Lena spoke with his girlfriend Scott on the phone. He was still in Brisbane at the time. He told her he was going to hand in his colours as he was sick of people "... making him look like a dickhead". On the State case that was a reference to Di Lena's involvement in the drug transaction going wrong and his discussions with his colleagues in Brisbane.
32 Di Lena and Washer returned to Perth from Brisbane the same day.
33 On 24 July, Di Lena told Scott on the phone that he helped Rob (Fisher) out and then Rob "turned around and blamed him". Later on the same day, Di Lena told Whitsed in another telephone conversation that he had learned some very valuable lessons and had let everybody down in the chapter by thinking he was high and mighty. He told Whitsed that he had been watching Washer and that Washer had been doing what he should have been doing all along.
34 On 9 August 2000 Di Lena received a telephone call from a male person ringing from a phone box in Caboolture, Queensland, just down the road from where Bruce Cummings lived. The man told him they were going to organise some money as the man had to give "that thing" to his two other partners who wanted their share. Di Lena said he would need a few weeks.
35 A conversation between Di Lena and Scott was recorded at their home in Lesmurdie on 7 September 2000 in which Di Lena told Scott it was obvious that Rob Fisher had not said anything to the police because if he had said anything, the police would not be going around asking questions but instead would be raiding various places. Di Lena told Scott that she did not have to answer questions and to say that she did not know what was going on. He said that he hoped "Rob's missus" did not know too much and that if the police could not link them to anything, the police would be unable to say they were involved in it. Later on that day, Di Lena told Walker that the biggest thing is that he "is having no contact over there now, it's all done and been sorted out" and the next contact he would have is "the national". He said that "basically we will just stay away from each other for the next year because that is how long they will take to look at us". The following day Di Lena told a person by the name of Glatz, an acquaintance, that all he "is doing now is little things" but if they bust him, then they bust him. He said he could handle a year or two in gaol but did not think he could handle 10 years in gaol. He repeated to Glatz some of the conversation he had had with Walker the previous day. He also added:
"The worst thing is this fuckwit that fucked up hasn't fucked it up with me. He's fucked it up for the other five people."
On the State case, that was a reference to Fisher and the failed attempt to get the drugs back from Queensland.
36 On 13 September Di Lena learned that there was a detective who wanted to speak to him and Scott. Later that day, Di Lena told Scott that they had to get their stories straight and he went through what Scott's story ought to be. He told her that she only knew Fisher through Di Lena and had never really spoken to Fisher. He told her (to say) that it was he who asked her to put the car on the credit card for Fisher, so that he could get home and she did not know what he was doing over there. Di Lena also talked to Scott about being in Brisbane the week before and the week after Fisher "got done". He mentioned to Scott that he had made a few phone calls to Brisbane, but said "it all means shit".
37 Fisher was again the subject of conversation between Di Lena and some other males at Di Lena's home the following day, 14 September 2000. Di Lena said he thought it was a good idea for Scott and him to sign a statement saying that all they knew about Fisher was that they loaned him the credit card to pay for the car hire and they had no idea he had any drugs on him. Di Lena said he was going to tell Scott to tell police the same story. In the course of the conversation he mentioned that he had heard that Fisher was not going to "roll" and was going to take the rap for it himself. He told his mates that he did not know that Fisher's "missus" was going to be in the car as Fisher had never said anything about that. In the same conversation, Di Lena later told his friends that he did not have much to do with Farber but had more to do with Fisher. On 18 September, Di Lena, Scott and Johnson (another associate of Di Lena's) are heard counting a seemingly large amount of money whilst talking about drug dealing, and a day later, Di Lena, Scott and another male are talking about drugs, drug dealing and weights. On 20 September 2000, Di Lena appears to be doing a drug deal with another person.
38 Finally, on 21 September 2000, the police searched various properties and seized a number of items. They included scales and grinder with traces of methylamphetamine located at Washer's house in Bullsbrook. They were found on top of the refrigerator. A business and expenditure recorder was located in the bus in which Washer was living. That record had an entry which read "29.5, 55,000 J". The State case was that was a reference to 29 May, $55,000 owned by J, being John Di Lena.
39 Traces of methylamphetamine were located on the kitchen bench, on scales, on a coffee grinder, on kitchen utensils, a cup and blending tool located in Di Lena's residence at Lesmurdie. Clip seal bags containing about 56 grams of methylamphetamine were located in Di Lena and Scott's spare bedroom and games room on 21 September.
40 Washer was interviewed by police on 21 September. He told police that he did not use amphetamines, that he was a member of the Rebels motor cycle organisation and his nickname was "Young-un". He said he was currently a business man, having a pressure cleaning business and a timber business but with no employees, just himself. He said that Bowles, one of the men to whom he was speaking in the recorded conversations at his house, was one of his business partners. He said that Bowles was also a member of the Rebels. He said he did not know Robert Fisher. He said he did know John Di Lena, who was also a member of the motor cycle club. Washer denied selling or supplying methylamphetamine to anyone. He admitted to flying to Queensland on two occasions over a couple of weeks, once by himself and once with Di Lena. He said he usually flew Qantas. On that occasion Di Lena organised the ticket and they flew together. He did not know the names they flew under. He told police that on the first occasion he went to Brisbane on his own for three or four days just to get away from them and to go somewhere for a holiday; to get away from Perth for a while. He said that when he was in Brisbane he stayed at the Rebels club house on both occasions. He said that when he went to Brisbane with Di Lena, that was just for a social visit for three or four days and that Di Lena organised the tickets but Washer paid him back in cash.
41 Counsel for the appellants at trial were each permitted to make a short statement to the jury after the prosecution opening, to indicate what the issues would be. Counsel for Washer said the prosecution case was all circumstantial and the inferences the prosecution sought to have the jury draw were not the only ones open. He said Washer's position was that he had no involvement in drugs, as was alleged, and the various things mentioned by the prosecution, such as the conversations and the entries in a book, did not relate to drugs. The flights to Brisbane were in connection with a bike run.
42 Counsel for Di Lena told the jury Di Lena was not on trial for being a member of the Rebels, nor for being a drug dealer generally, nor for possession of the 56 grams of methylamphetamine - but for the particular conspiracy charged. He said the first question would be whether there was a conspiracy - it was possible Fisher was acting alone - and if there was a conspiracy, the next question would be whether Di Lena was part of it. His position was that he was not involved.
43 The investigation concluded on 22 March 2001. Police searched various properties owned and occupied by the appellants but nothing of any great significance was located. On 22 March 2002, Washer took part in a police video record of interview. In the course of that the police played to him three excerpts from the listening device in his house. He said he did not recognise his voice. Shown a transcript, he said "it's just a good story" and he did not know anything about it. He denied that he was talking about drugs and said he would not talk about drugs with anyone. He denied ever having sold or supplied drugs to anyone or that he had ever had methylamphetamine at his house. When the police told him about the coffee grinder with traces of methylamphetamine on it, he denied it was his and said it could have come from any one of a number of people he had lived with over time. When they told him the scales he had in his possession in September 2000 had traces of methylamphetamine on them, he said that a drug dealer must have sneaked into his house to use them because he had never weighed anything on them as they were just kitchen scales. Asked about the entry in his expenditure and income ledger, he admitted it was his writing but said it meant nothing. He said he just liked writing down figures and it probably related to the stock market, probably silver or jasmine, but he could not remember what it was at the time.
Ground 1 (Both appeals) - Exclusion of evidence of drug dealing etc after 2 June 2000
44 Prior to the trial, applications were made by each appellant under the provisions of s 611A of the Criminal Code for rulings on the admissibility of evidence which the State proposed to adduce at trial. Those applications were heard by Wisbey DCJ on 28 February 2005. His Honour published his reasons for decision on them on 3 March 2005 (Washer & Ors v The State of Western Australia [2005] WADC 36).
45 The State nominated 2 June 2000 as the end date of the conspiracy to possess methylamphetamine with intent because that was the date on which the New South Wales Police found the 1.96 kg of the drug in the hire care near Coonamble.
46 In general terms, his Honour identified the issue central to the controversy before him as the use, if any, that the prosecution could make of covert telephone intercepts and conversations recorded by listening devices, which post-dated the conspiracy, that is, occurred subsequent to June 2000. The conversations, in part at least, suggested on-going drug dealing by each of Washer and Di Lena. It was contended on behalf of the appellants then, and is advanced in support of grounds 1 and 2 of this appeal, that so far as the conversations were those of a co-accused, they were not admissible under the co-conspirators' rule since they did not occur during the currency of the conspiracy, nor in furtherance of it, and so far as they were personal utterances of an accused, they were not probative of any fact in issue, were highly prejudicial, and demonstrated only a propensity to commit offences under the Misuse of Drugs Act.
47 Having referred to Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 and Atholwood [2000] WASCA 76; (2000) 110 A Crim R 417, his Honour concluded that evidence that an accused was involved in drug dealing at a time approximate to the period of the alleged offence, was probative of the element of intent to sell or supply and to rebut innocent association. He held the evidence went beyond mere propensity and notwithstanding its potential for prejudice was admissible. He was not satisfied that the actions or utterances of any accused person subsequent to 2 June 2000 could be classified as being in furtherance of the conspiracy.
48 No counsel referred his Honour to s 31A of the Evidence Act 1906 (WA), which bore directly on this question and which was in operation at that time. Senior counsel for the appellants on the appeal suggested that may have been because of a general view that s 31A applied only to sexual cases, but if that was so, it was a misunderstanding.
49 The appellant's written submissions were cast on the assumption s 31A had not been the subject of consideration by this Court, and argued that although the section had removed the applicability of the test enunciated by the High Court in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 296 and Pfennig v The Queen [1995] HCA 7; (1994) 182 CLR 461, 483 - 485, the statutory test is "perhaps not far removed" from the test customarily applied before Hoch, as instanced in Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528, 564. In that regard, reliance was placed on the observation by Brennan J in Sutton at 547 - 548 that:
"Before the trial judge is at liberty to admit similar fact evidence he must be satisfied that the probative force of the evidence clearly transcends its merely prejudicial effect ... It is the probative force (or cogency) of the evidence in comparison with the impermissible prejudice that it may produce which determines admissibility ..."
50 Section 31A of the Evidence Act provides as follows:
(a) similar fact evidence or other evidence of the conduct of the accused person; or
(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
'relationship evidence' means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion."
51 As it happens, this Court had occasion to consider s 31A in Wood v The State of Western Australia [2005] WASCA 179 (in which Pullin JA explained the legislative history of the provision) and Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122, [102] - [130]. It is clear that s 31A(2) was intended to abrogate the majority holding in Pfennig (that propensity evidence will not possess the necessarily strong degree of probative force to outweigh its prejudicial effect if, in the conclusion of the trial Judge, there is a rational view of it consistent with the innocence of the accused). The test imported by subs (2) is that formulated in the dissenting judgment of McHugh J in Pfennig (supra, 528). Likewise, s 31A(3) was designed to overcome the effect of the decision of the High Court in Hoch (in that the subject evidence would be inadmissible if there was a possibility of joint concoction, collusion or suggestion) (Wood, supra, at [41]; Donaldson, supra, at [108]).
52 The definition of "propensity evidence" in s 31A(1) of the Evidence Act is much wider than the way in which the term had been understood at common law. In particular, it includes not only "similar fact" evidence, but "other evidence of the conduct of the accused" or of an accused's "character or reputation" or of "a tendency" that the accused person has or had. These categories are remarkably wide. In each instance, the admissibility of evidence in any of the categories is conditioned (only) by the tests in subs (2), namely that the evidence would have "significant" probative value and that the probative value, compared to the degree of risk of an unfair trial, is such that fair-minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The exercise of comparison required by s 31A(2)(b) is that of comparing the probative value of the evidence against the risk of an unfair trial. And, it must be noted, the exercise to be undertaken by a trial Judge is to decide how "fair-minded people" would weigh those competing considerations. As was explained in Donaldson (supra) at [118] and [127], the governing consideration is that the evidence has probative value and that the probative value is so significant that in the opinion of fair-minded people, the public interest in producing all evidence tending to prove the guilt of the accused must take priority over the risk that the jury might use that evidence to conclude the accused must have committed the offence charged simply because he or she has committed other offences or has done (or has a tendency to do, or a reputation for doing) other discreditable things.
53 It is submitted on behalf of the appellant that in enacting s 31A, Parliament did not intend to "set at nought the body of common law principles which courts in this country and England had formulated over a period of more than 100 years, commencing with Makin v The Attorney-General (NSW) [1894] AC 57, which were designed to guide and inform as to the circumstances in which propensity evidence will satisfy the ultimate test of admissibility". That proposition was drawn from the judgment of Winneke P (with whom Charles and Batt JJA agreed) in R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412 at [20]. What his Honour went on to say immediately following that passage, was that:
"The effect of these principles is that evidence of the commission of offences other than those charged, or indeed evidence of conduct which shows generally that the accused is a person of bad character, is prima facie inadmissible because the antipathy which it is apt to engender may unjustly erode the presumption of innocence (Sutton v R at 545; 343 per Brennan J; Perry v R [1982] HCA 75; (1982) 150 CLR 580 per Murphy J at 593-594). Before such evidence may be admitted it must have such a probative force in relation to the offence charged as to justify its admission notwithstanding its inherent prejudicial effect: cf Sutton's case, per Dawson J at 565; 358-359."
54 The statutory provision under consideration in Tektonopoulos was s 398A of the Crimes Act (Vic), which, so far as is presently pertinent, provides that:
"(1) ...
(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence ..."
55 Winneke P referred to R v Best [1998] 4 VR 603; (1998) 102 A Crim R 56, in which Callaway JA (Phillips CJ and Buchanan JA agreeing) explained that the legislative purpose of s 398A was to abrogate the "no other reasonable explanation" test for the admissibility of propensity evidence as developed by the High Court in Hoch and Pfennig, in favour of the "just to admit the evidence despite its prejudicial effect" test enunciated by the House of Lords in Director of Public Prosecutions v P [1991] 2 AC 447. Winneke P concluded (supra, at [19]) that the test which s 398A now applies "is not far removed from that customarily applied in Australia before Hoch" and then set out the passage from the judgment of Brennan J in Sutton quoted above.
56 It is important to bear in mind that the task of a trial Judge, and of this Court, is to apply s 31A according to its terms.
57 Where the admissibility of propensity evidence falls for determination, the questions to be asked by a trial Judge, in accordance with s 31A, are:
1. does the evidence have significant probative value? If so,
2. would "fair-minded people", comparing that significant probative value to the degree of risk of an unfair trial, think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial?
58 The section arguably seems to accept the view hitherto taken in the authorities (see eg Toohey J in Pfennig (supra) at 507) that given the nature of propensity evidence, its introduction will always involve the risk of an unfair trial. That, indeed, has always been the underlying concern of the courts.
59 In its express terms, the section requires a comparison between the significant probative value of the propensity evidence and the risk of an unfair trial. The relevant unfairness is that I have mentioned above, or, as expressed by Winneke P in Tektonpoulos at [25] "that the jury will reason, from the mere fact of established criminal propensity, that the accused is the offender."
60 In that case the President concluded that a determination by a trial Judge to admit propensity evidence under s 398A(2) is not an exercise of discretion. Although s 31A(2) of the Evidence Act is differently worded, in my view the same position pertains. The question is one of law, not discretion, albeit a different test applies. There is no discretion, because if the trial Judge concludes the propensity evidence has significant probative value, and that fair-minded people, comparing that probative value to the risk of an unfair trial would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial, he or she is bound to admit it. I agree there would be no room for the exercise of the "Christie" discretion (R v Christie [1914] AC 545) thereafter (Pfennig (supra), at 515 per McHugh J).
61 For the appellant it is now submitted that although all counsel and Wisbey DCJ failed to appreciate s 31A applied, it did do so and having regard to it, the evidence was inadmissible.
62 At the pre-trial hearing before Wisbey DCJ, the State sought to adduce the drug dealing evidence on three bases. The first was that it consisted of words or conduct by one or more of the co-conspirators in furtherance of the conspiracy. That basis was properly rejected by the trial Judge and I do not need to deal with it further. The second was that it was evidence of statements against interest, or admissions, by a particular accused. The third was that it was probative of an element of the offence, in particular, the intent to sell or supply. This last was also said to go to prove "the conspiratorial agreement, and/or discussions" and otherwise to give the conversations meaning and proper context.
63 I note in passing that the "innocent association" argument was put as relating to association between the individuals concerned and to their association with drugs - in other words, to satisfy the jury that what they were talking about (and what the subject of the conspiracy was) was illicit drugs. That was something which counsel for the appellants later made clear was in issue.
64 The evidence, which is the subject of grounds 1 and 2, was described in argument as "the drug dealing evidence", and it is convenient to use that description. It consisted of discussions between Washer and others (Page, Bowles and Whitsed) which occurred between 29 June and 11 July 2000, and the searches of Washer's residence on 12 July and 21 September 2000 which produced material said by the prosecution to be connected with drug trafficking (scales and a grinder) and which proved positive for methylamphetamine.
65 The submission is that the drug dealing evidence, if accepted as such, revealed the commission of criminal offences other than that with which the appellants had been charged, that it was accordingly propensity evidence and had substantial prejudicial effect but little probative value.
66 It is now accepted that the admissibility of the evidence was governed by s 31A of the Evidence Act 1906 (WA).
67 The evidence which was the subject of dispute in Harriman related to his activities prior to the commission of the alleged offences. Five separate parcels of heroin had been posted by the co-offender, Martin, from London, to Western Australia, in April 1987. The prosecution relied in part upon evidence that Harriman had been involved in the sale and use of heroin in late 1986 or early 1987. The prosecution also relied upon letters from Harriman to another co-offender by the name of Lisk, written while they were both in gaol. That correspondence contained various admissions, including that of prior drug dealing.
68 Martin and Harriman were the principal shareholders and directors of a mining company which was in financial trouble. The prosecution case was that they decided to import heroin to relieve the company's financial situation. In March 1987 Harriman went to Thailand, where he was joined by Martin the following month. They travelled together to Chiang Mai by bus overnight and returned to Bangkok the next evening. Martin then went to London where he posted the heroin to Western Australia. Martin was the principal Crown witness. His evidence was that Harriman arranged for the purchase of the heroin and its collection by Martin in Chiang Mai, that he assisted Martin to repackage and conceal it and instructed Martin to post it from London to various addresses in Western Australia, two of which Harriman supplied. The defence case was that Martin had acted entirely independently of Harriman and Harriman knew nothing about it.
69 The evidence of prior drug dealings was objected to on the ground it was unfairly prejudicial in that it revealed the commission by Harriman of offences other than those on which he stood charged.
70 In his judgment, Brennan J pointed out (at 594) that:
"... where evidence does show more than the mere commission of another offence or predisposition to commit an offence and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion. If, as a matter of human experience, the evidence tends to establish the offence charged or a fact in issue otherwise than by showing merely the commission of another offence or a propensity to commit an offence, the evidence is admissible. ... I do not find the classification of evidence revealing the commission of another offence as 'circumstantial' to be helpful in ascertaining the criterion of its admissibility. Whatever the classification of the evidence, its admissibility depends on its satisfaction of the criterion that its probative force clearly transcends its merely prejudicial effect: Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, at p 300, and the cases there cited."
71 His Honour went on to say (at 595) that although evidence of prior involvement by Harriman and Martin in the sale of heroin, evidence from Lisk of prior sales of heroin by Harriman, and evidence of Harriman's use of heroin were clearly prejudicial and were not admissible unless something more than the commission of prior offences was revealed thereby, in his opinion, more was revealed. His Honour concluded that evidence of substantial participation in the heroin trade could support an inference of continued participation, although each case necessarily depends on its own facts.
72 Senior counsel for Washer emphasises that Brennan J was there referring to evidence of conduct before the offence not after it. The latter, he submits, will much less readily be admitted (citing R v Beserick (1993) 30 NSWLR 510 to which I shall come shortly). It is true his Honour was talking of conduct before the offence, but that was the nature of the evidence the subject of challenge in that case. The post offence correspondence spoke of drug dealing which had occurred in the past. What it is important to appreciate is how the evidence was seen to be so relevant to the case as to require its admission, notwithstanding its prejudicial effect. So, for example, Brennan J explained (at 596) that evidence of Harriman's participation in the heroin trade not only strengthened the Crown allegation of motive but tended to make it more likely that his relevant contacts with Martin were for a guilty rather than an innocent purpose. The evidence was highly probative of the offences charged. Importantly, his Honour noted that it was admissible "whether or not Harriman had raised in cross-examination the 'defence' that Martin was acting alone". As to the Lisk correspondence, his Honour held that proof of Harriman's involvement in other criminal importations of drugs confirmed that his participation in the heroin trade in Western Australia was not an isolated or temporary venture, but part of an illegal business. Proof of that fact was highly probative of the criminal character of his association with Martin in Thailand in April 1987.
73 Dawson J acknowledged (at 598) that the view of propensity evidence which had prevailed since Boardman v Director of Public Prosecutions [1975] AC 421, was that propensity evidence was not irrelevant as such, but was excluded for reasons of policy unless it had sufficient probative force. He later (at 599) described it as requiring "a high degree of relevance", and (at 602) noted that, in accordance with Hoch, such evidence ought not be admitted if the Judge was of the opinion there was a rational view of it inconsistent with the guilt of the accused. As I have observed, that test has now been abrogated by s 31A(2) of the Evidence Act.
74 The other members of the Court took a similar approach to the principles applying to the admissibility of propensity evidence. Even so, it was held by all members of the Court that the evidence of Harriman's prior involvement with Martin in the sale of heroin was admissible, as was the Lisk correspondence, because it was highly probative of the criminal character of his association with Martin in Thailand in 1987.
75 Senior counsel for Washer argued strongly that the challenged evidence ought not to have been admitted because it did not go to any contested issue in the case. He contended that even at the time of the pre-trial argument, his Honour and the State were under no illusions that if the State were able to prove the agreement the subject of the conspiracy charge, "there was going to be no issue about the possession of the necessary intent because after all possession of two kilograms could hardly be said by anyone to be for their personal use, it had to be with an intent to sell or supply" (Appeal t/s 7) and then added (Appeal t/s 8) that even though that element had to be proved, "... prior to the trial before any evidence was heard before the jury counsel had already told his Honour the issue of intent was not an issue." Asked whether there was any offer to make an admission, senior counsel said there was no offer to make an admission but as the trial progressed it became absolutely clear that there was no issue about the aspect of intent.
76 In this respect, senior counsel relied upon the following passage from the judgment of Toohey J in Harriman at 608:
"... the admissibility of evidence cannot always depend upon the line taken by the defence at trial for, at the stage the evidence is to be adduced, the nature of the defence may not be known. Evidence of similar facts may be led 'to rebut a defence which would otherwise be open to the accused' (Makin [1894] AC at p 65). In Markby (1978) 140 CLR at pp 116-117, Gibbs ACJ observed of that statement: 'the words ... do not mean that the admissibility of the evidence depends on the line taken by the defence at the trial, that is, on whether the accused has raised or disclaimed a particular defence.' As a general observation, the same may be said of the admissibility of any evidence. In a criminal trial there is an indictment. The admissibility of evidence depends upon its relevance to issues raised by the indictment including defences available to the accused. If the accused is concerned that evidence sought to be adduced is relevant only to a defence upon which he does not intend to rely and that it is prejudicial to him, his counsel may so inform the court. Presumably the evidence will not then be pressed or, if pressed, it is likely to be rejected because it is not probative of any disputed fact. Equally, a particular line of defence may serve to point up the admissibility of the evidence to which objection is taken." (Emphasis added)
77 The submission founded on the above passage is further elaborated in this way. It is said that, notwithstanding the pre-trial ruling was that the evidence was admissible to prove first the appellant's association with drugs and secondly an intent to sell or supply, when directing the jury at the end of the trial the trial Judge declined to leave it to them on the first basis because (as senior counsel expressed it) "that was just propensity evidence", so all the evidence was left to go to was the intent to sell or supply - which, senior counsel says, was not in issue. In those circumstances, the submission is, the prejudice clearly outweighed any (proper) probative effect and the evidence should not have been admitted.
78 However, it was never the situation that either appellant made a formal admission at trial that he had an intent to sell or supply. Such a procedure is available under s 32 of the Evidence Act which provides that an accused, either personally or by his counsel in his presence, may admit at trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence.
79 The making of an admission pursuant to s 32 relieves the prosecution from the need to adduce evidence of that fact or element. Of course, the prosecution has always to prove every element of an offence to secure a guilty verdict, but as a matter of law, such an admission is sufficient by itself to prove the element beyond reasonable doubt.
80 Given that they were denying the existence of the conspiracy charged, or alternatively, that they had any involvement in it, it is not surprising the appellants made no formal admission of an intent to sell or supply. Nonetheless, in the absence of a formal admission under s 32 of the Evidence Act, the prosecution here was obliged to lead evidence to prove that element.
81 There can be little doubt that when Toohey J in Harriman at 608 spoke of an accused's counsel informing the court that the accused did not intend to rely upon a particular defence open to him, his Honour had in mind the making of a formal admission (or a formal undertaking by counsel not to rely upon a particular defence) such as would dispense with any requirement for the prosecution to lead further evidence on the point.
82 It must also be borne in mind that the presumption of an intent effected by s 11 of the Misuse of Drugs Act 1981, where the quantity of a prohibited drug exceeds the prescribed amount, does not operate on a charge of conspiracy to possess a prohibited drug (Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202).
83 Furthermore, not only was there here no formal admission, but I do not think it can properly be said that there was any admission of the element of intent to sell or supply.
84 The highest it can be put is that all counsel recognised the difficulty of the defence suggesting that possession of a quantity of almost 2 kilograms of heroin could be for any purpose other than to sell or supply it. Had a forensic opportunity fortuitously arisen to contend otherwise, there would have been nothing in the way their case had been conducted, to prevent the appellants capitalising on it to argue the evidence did not establish the relevant intent.
85 Intent had not been admitted; it was an issue upon which the jury had to be satisfied beyond reasonable doubt on the evidence before them and they were directed by the trial Judge accordingly.
86 In Atholwood (supra), the appellant was convicted of three counts of possessing prohibited drugs with intent to sell or supply. The counts related to 449.28 grams of methylamphetamine, 28.79 grams of amphetamine and 150 ecstasy tablets (36.78 grams) respectively, found in an ammunition box buried under a concrete slab in a garden shed. A further small quantity of methylamphetamine and another of ecstasy were found in clothing belonging to the appellant in his house. Objection was taken to evidence of the drugs found in the appellant's clothing and to drug paraphernalia in the kitchen. The drugs in the clothing were not of the same chemical composition as those under the shed. It was argued the evidence of the drugs in the house and the drug paraphernalia was no more than evidence of propensity. The evidence was admitted at trial.
87 On appeal, Malcolm CJ (Wallwork and Anderson JJ concurring) held (at [9]) that where the issue at trial is whether a person found in possession of a drug possessed it for sale or supply, the fact that the person is currently engaged in the business of a drug dealer is a fact relevant to the issue. It is not mere evidence of propensity to commit crimes. His Honour explained (at [10]):
"The evidence of the drugs found in the bedroom and at the paraphernalia in the kitchen was also relevant to negativing an innocent association between the appellant and the drugs in the same way as evidence may be led to negative innocent association between one person and another or a person and a building ..." (Citations omitted)
"... evidence tending to show that an accused is or has been dealing in drugs is relevant and admissible on the issue of his intention to sell or supply a quantity of drugs found in his possession. In this context, the evidence falls into a category where its probative value on the issue of intent outweighs any prejudicial effect."
88 As to the point that the drugs were of a different chemical composition, the Chief Justice said (at [25]):
"... it was not necessary to show that the drugs or traces of drugs which the appellant had in his possession among his clothing were of the same composition or manufactured in the same way as those found in the shed. The probative value of the evidence was that, taken together with the paraphernalia found in the kitchen, it tended to show that he was a person who dealt in drugs. In the context, that evidence was relevant and admissible on the issue of his intention so far as the drugs found in the shed were concerned, assuming he was found in possession of them."
89 R v Beserick was a case of a very different kind to the present. That involved three offences of child sexual assault. It turned on the application of s 409B(3) of the Crimes Act 1900 (NSW) which made inadmissible any evidence which disclosed or implied that the complainant had, or may have had, sexual experience or taken part in any sexual activity except in six strictly defined situations, and then only where its probative value outweighed any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission. Hunt CJ at CL (with whose judgment Finlay and Levine JJ agreed) held (at 519) that the admissibility of such evidence was subject first to the protection afforded to the complainant by the requirement of s 409B(3) that its probative value outweigh any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission and secondly, to the protection afforded to the accused by the common law discretion to exclude such evidence if its prejudicial effect outweighs its probative value. So far as the latter was concerned, the test to be applied was that derived from Hoch, Harriman and S v The Queen [1989] HCA 66; (1989) 168 CLR 266.
90 In the passages relied upon, his Honour was expressing his conclusion about the evidence under challenge in that case, in the context of his earlier analysis of the statutory provision and the effect of the common law rules about the admissibility of similar fact or propensity evidence. He observed in the above passages (as he had earlier) that he was not prepared to say that evidence of post-offence conduct could never be relevant to put evidence of earlier activity, upon which a charge is based, in its proper context. The offences charged there - and the subsequent conduct relied upon - were of particular sexual activities and extended over three to four years after the offence charged, which was said to be the very first occasion of sexual activity between the appellant and the complainant. Hunt CJ at CL expressly agreed (at 520) with an earlier decision of the New South Wales Court of Criminal Appeal in Rogerson (1992) 65 A Crim R 530 in which the Court explained (Beserick at 519):
"Harriman v The Queen is therefore not an authority for the broad proposition that, where evidence tends to disclose criminality other than that charged, it must have a high degree of probative force to be admissible. Only if it is tendered merely as 'propensity' or 'similar fact' or 'improbability' evidence must it pass some such initial test. If it is tendered to prove a fact in issue otherwise than by merely showing the commission of another offence or a propensity to commit an offence, the evidence is admissible. In that event, the trial judge still has a residual discretion to reject the evidence on the ground that its prejudicial effect is disproportionate to its probative value." (My emphasis)
91 In the particular context of child sexual abuse cases, his Honour said that trial Judges are required to give close consideration to the weight of each piece of evidence tendered to establish guilty passion on the part of the accused, and remoteness of the other sexual activity from the time of the offence charged goes to the weight of that evidence. He continued (at 522):
"The more remote the other sexual activity is, the less will be its weight; and, in general (as a matter of commonsense), the weight to be afforded to subsequent sexual activity will be less than that to be afforded to previous sexual activity."
92 It is clear from those and other similar remarks, that his Honour was prepared to accept that evidence of conduct subsequent to the offence charged could not only be relevant, but sufficiently probative to require its admission, depending upon the circumstances of the particular case and the nature of the evidence. There is no reason why that should not be so as a general proposition.
93 The drug dealing evidence here had substantial probative force to negate a proposition that the appellants' association with each other and with others concerned in giving effect to the conspiratorial agreement, was not an innocent association, but an aspect of the appellant's drug dealing business. It similarly tended to negate the suggestion advanced on behalf of the appellants, that they were talking about things other than methylamphetamine, and that the book entry was to do with share or commodity trading. The evidence also tended to prove the element of intent to sell or supply. Indeed, it was not put otherwise either to us or at trial: the argument was not that the evidence did not have probative value in that way, but rather that it ought not to have been led because it was unnecessary as that element was not in issue.
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.
95 In respect of Washer there was an additional submission going to this ground. It was advanced for the appellant by Mr Boyce. It is also relevant to Washer's ground 3. It is put that a contention which was (and is) at the forefront of Washer's submissions as to why the drug dealing evidence should not have been led against him, was that it had already been led at a trial on an earlier conspiracy charge against him, of which he had been acquitted ("the previous acquittal") and that its admission on his trial in 2005 served to undermine the full effect of the previous acquittal.
96 Following completion of the investigation into these matters, Washer was arrested and charged on 22 March 2001. He was charged with two offences. The first was the conspiracy between him, Di Lena and Scott, the subject of this appeal. The other was a charge of conspiracy that between 12 April 2000 and 21 March 2001, he conspired with Whitsed and Bowles to sell methylamphetamine to another. The DPP agreed that there be separate trials of these two charges. Washer was tried on the charge of conspiracy with Whitsed and Bowles first. He was acquitted. In that trial, the State relied upon overt acts and led evidence of listening device and telephone intercept product of various conversations between him, Whitsed and Bowles and others. The State also relied upon the police search video of Washer's home property on 22 March 2001 and the financial books and other items seized in that search.
97 The respondent concedes that most, if not all, of the recorded conversations had been led against the appellant on his earlier trial.
98 When this point was raised at the pre-trial hearing before Wisbey DCJ, the State pressed the argument that Washer had been acquitted of the conspiracy, not the conversations. His Honour accepted that argument. He held that the leading of the evidence would not call the previous acquittal into question.
99 The edited conversations particularly identified by counsel as constituting the evidence relevant to this submission (and to ground 3), that is to say, which was led as part of the prosecution on the other conspiracy, are:
1.27. 29/6/00 - Listening device at 3/16 Mars Street, Carlisle, conversation Washer and Page.
1.28. 30/6/00 - L.D. Conversation between Washer and Whitsed at Mars Street, Carlisle.
1.29. 3/7/00 - L.D. Conversation between Washer and Bowles at Mars Street, Carlisle.
1.30. 7/7/00 - L.D. Conversation between Washer and Bowles at Mars Street, Carlisle.
1.32 11/7/00 - L.D. Conversation between Washer and Whitsed at Mars Street, Carlisle.
100 In the conversation on 29 June 2000, Washer and Page are first talking about something which was going for about six or seven grams, but Page weighed it and afterwards found it to be only about four grams. He says it was not a lot, but it was the principle. Washer says it is a lot. Page says it is $200 or $300 cash. Washer says "its not that, it's not the cash; it's a lot for one person to be using". Washer then says that is why he is not with someone any more, because "she was the same ... drug fucked as shit, mate". He goes on, talking about how "they get worse and worse" and "if you stop dealing they'll just get it from someone else", and describes someone telling him the previous night it was not for her but for someone else, asking him every day and finally he would not give her any more.
101 The tape of what was said between Washer and Whitsed on 30 June 2000 comprised a number of selected extracts from a much longer conversation on that day. There is no issue about the editing. This tape includes references to "Booger" having "bought a half as well", "Drifty" taking one cut, and "Mischka" taking "a full one". Washer is heard adding figures, such as three and two point eight and working out what he has left of something. They talk about what he should have left. Whitsed tells Washer "bit of money that's come in too" and Washer says that is what he has to give Whitsed anyway. They discuss how much certain people have given, at the end of which Washer calculates that he has to give Whitsed "2790" and comments "now that's a bit fuckin better than it has been, 'ay". After a few other exchanges about figures, Washer says "Yeah, oh well, yeah well youse are better at me anyway, cause Johnno won't fuckin, won't make anything I think (indecipherable) ..." On the prosecution case, "Johnno" was a reference to Di Lena. Then followed the conversation about it being a lot of money, which is why Washer would like to see Di Lena go over east and see what is going on. That is the conversation in which he talks about having given "55 grand upfront" and it was "killing" him.
102 The conversation continues about other matters, including such comments as "... good gear in that shit". Washer talks about "going bush" and going out "there" and living in a bus and using a shed to get his workshop going and doing up motors. Whitsed talks about getting $1600 a month for something he was doing before, and Washer comments "Yeah, but you make that in a fuckin week". The conversation continues in this vein for some time. They then come to how "this last lot" has shaken everyone up and how Washer is probably down 50 grand. I have already outlined this conversation above.
103 They then talk about making money on the stock market and how difficult it is to make money generally. Eventually Washer comes back to talking about hopefully getting half his money back, so instead of 55, he is only to go down 25, and about "they" saying they would "cop half", and how it is "his" problem, not Washer's. There is then more discussion about property investments and the like, to the end of the extract.
104 The conversation between Washer and Bowles on 3 July 2000 concerns talk about how much of something Bowles has (Washer asks if it is an ounce) and keeping something separate so someone else knows what is going on. They talk about that person taking Bowles' customers because "he's got no money floating around" or nothing happening, and going back to his small customers. Again, on the prosecution case they are talking about Di Lena. Bowles says he does not like the way he (Di Lena) does business.
105 The conversation between Washer and Bowles on 7 July 2000 is quite lengthy, going for some 14 minutes. I have already described the content of that sufficiently above.
106 The last conversation the subject of this submission was between Washer and Whitsed on 11 July 2000. It is not necessary to detail the content of it beyond what I have already.
107 The authorities on which counsel for Washer primarily relies are Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437; R v Storey [1978] HCA 39; (1978) 140 CLR 364 and R v Carroll (2002) 213 CLR 635.
108 In Garrett, the appellant was convicted of rape in July 1976. Intercourse was admitted, but consent was in issue. Over objection, the Crown led evidence from the prosecution that the appellant had earlier been tried on a charge of raping her in November 1975 and acquitted. Her evidence was that intercourse had occurred, but without her consent on that occasion. Barwick CJ (Stephen, Mason and Jacobs JJ concurring) held that evidence was inadmissible and quashed the conviction.
109 Critically in that case, the appellant's guilt of the alleged 1975 rape was asserted, notwithstanding his acquittal of it (Barwick CJ at 444). But that was not the reason for the decision, which was that, quite apart from the fact of the earlier trial and acquittal, evidence of an earlier rape of the prosecutrix was simply not admissible (ibid). Garrett is crucially distinguishable from the present case therefore, because here the drug dealing evidence was admissible for the reasons I have already explained on ground 1.
110 Be that as it may, Barwick CJ did make some obiter observations about the earlier acquittal, to which reference should be made. In the course of his directions the trial Judge had told the jury the acquittal of the appellant was a neutral fact. As to this, Barwick CJ said (445):
"But it was not neutral and, if the prosecutrix were rightly permitted to give the evidence she gave, the acquittal was a dominant fact of which the applicant was entitled to full credit. To have said that the acquittal was neutral was to deny the applicant the full benefit of the acquittal and not to lay that emphasis upon it for which the circumstances called."
"... in my opinion the former acquittal could not be called in question by evidence led by the Crown in the subsequent trial. This conclusion does not depend on the purpose which the Crown sought to achieve by the admission of the evidence. It depends entirely on the tendency of the evidence itself.
The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds. ..."
"... the direct tendency of the evidence of the prosecutrix was to establish rape on the former occasion. It inevitably challenged the verdict of acquittal. It was therefore, on basic principle, without resort to any issue estoppel which might be suggested, inadmissible."
112 The challenge to a previous verdict was less direct, but not less fatal, in Storey. There the respondents had been charged with forcible abduction of the complainant from a railway station with intent to rape her. They were acquitted. They were then charged with the subsequent rape of the same woman. The Court of Criminal Appeal of Victoria quashed the conviction for rape and ordered a new trial on the ground the Crown was seeking in effect, to establish the respondents were guilty of the offence of which they had earlier been acquitted. That decision was affirmed by the High Court, which held however, that evidence tending to show an accused is guilty of an offence of which he has been acquitted may be admissible if it is otherwise relevant and if the jury is directed not to interpret it in such a way as to deny the acquittal.
113 According to Barwick CJ (at 372) the principles of issue estoppel have no application to criminal proceedings. The correct principle concerning the admissibility at a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal, is that a verdict of acquittal shall not be challenged in a subsequent trial. The accused must be given the full benefit of his acquittal on the earlier occasion. Significantly, his Honour held that evidence which was admissible to establish the earlier offence was not inadmissible merely because it was tendered in the earlier proceedings, but it could not be used for the purpose of challenging or diminishing the benefit to the accused of the acquittal.
114 Although the Chief Justice was in dissent on the outcome, all members of the Court, other than Jacobs J, were in agreement that the evidence was admissible on the subsequent trial.
115 Gibbs J was also in dissent, but not on that point. His Honour also agreed (at 387) that the principle is that a verdict of acquittal once given is binding and the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has previously been acquitted. Accordingly, if the only relevance of the evidence is to show the accused was guilty of an offence of which he had been acquitted, it will be inadmissible. However, evidence otherwise relevant is not rendered inadmissible by the fact that it has that tendency. His Honour said (at 389) that in endeavouring to prove that the appellants were guilty of rape, the Crown did not seek to show they were guilty of the abduction of which they had been acquitted. He acknowledged it was true the Crown led evidence which tended to show the appellants had abducted the prosecutrix, but that alone did not make it inadmissible; the relevance of the evidence did not depend upon whether they had abducted her. The Crown, by leading the evidence did not challenge, nor call in question the acquittal on the abduction charge (ibid 390).
116 Mason J held (at 396) that the principle of res judicata as applicable in criminal proceedings will preclude the prosecution from challenging the effect of a previous acquittal. However, at 397, his Honour held that compliance with the principle of res judicata does not necessarily entail the exclusion at a subsequent trial of relevant evidence which might on its face, if unexplained, tend to suggest that the accused was guilty of an offence of which had already been acquitted.
117 Jacobs J held that the evidence had been wrongly admitted, but his Honour was in the minority in so holding.
118 Murphy J held (at 412) that the earlier acquittal created an estoppel only on the general issue of abduction which was not an issue in the second trial. Accordingly, on the second trial, the prosecution was entitled to lead evidence relevant to the charge of rape and not otherwise inadmissible, even if it tended to establish the elements which had to be proved to secure a conviction of the abduction of which the respondents had been convicted.
119 Aickin J (with whom Stephen J agreed) said (at 424) that the only matter established by the acquittal was the ultimate conclusion that the respondents were not guilty of the abduction, and none of the possible individual issues involved in that could be said to have formed a necessary foundation for that ultimate conclusion. His Honour held (ibid) there is no estoppel as to evidentiary facts found in the course of determining an issue in a criminal trial and so nothing to prevent a party, in a later proceeding in relation to a particular issue of fact negatived in the earlier proceeding, tendering evidence of those same facts directed to a different issue. His Honour pointed out that Garrett made it clear that the Crown may not challenge the ultimate result of the previous trial, namely the acquittal on the charge of abduction. However, giving full effect to the acquittal did not require that evidence given at the previous trial must necessarily be excluded because it might, in the absence of explanation, suggest to the jury that the accused was guilty of an offence of which he had been acquitted.
120 Carroll was a case which primarily concerned the application of the principle of double jeopardy. Garrett, Storey and Rogers v The Queen (1994) 181 CLR 251 were referred to and discussed. However, nothing that was said in Carroll either extends or detracts from the principles articulated by the High Court in Garrett and Storey.
121 It is clear from those authorities that the fact of Washer's acquittal on the earlier and different charge of conspiracy with Whitsed and Bowles did not preclude the State leading much of the same evidence again in the subsequent trial to prove a different conspiracy, so long as it was otherwise relevant and admissible. I have already concluded that it was. There is accordingly no substance in this submission and I would therefore not uphold ground 1 on Washer's account either.
Ground 2 (Both appeals): Failure to direct jury to ignore evidence of subsequent drug dealing
122 This ground follows from ground 1, but is predicated on the fact the evidence was admitted at trial. The submission is that his Honour should have directed the jury to ignore the drug dealing evidence. It will be apparent from my reasons in respect of ground 1 that I cannot accept this submission.
123 His Honour directed the jury (t/s 711) in respect of the telephone intercepts and listening device recordings, that it was important for them to remember they could only use the conversations of each accused when considering the case against that accused. His Honour then said (t/s 712):
"The state [sic] says to you in respect to the recorded conversations, that some of the interviews - some of the recorded conversations it says are evidence of drug dealing by the accused person, subsequent to the period alleged in the indictment, that is the period of the conspiracy.
If you are satisfied that that was the case, that it was evidence of drug dealing, you could only use it for a limited purpose and that purpose is in making a determination if you are satisfied that the accused person had entered into a conspiracy to possess the amphetamine. You can only use that material in determining whether it was proper to draw the inference from all the facts that the intention of the accused in possessing the methylamphetamine was to sell or supply it to another.
The fact that the accused person has been involved in drug dealing if that was your finding, is no basis for concluding that person's guilt in respect of the charge that you are being asked to consider. That charge can only be proved by the evidence directly referable to it. As I have said, you cannot reason and it would be quite impermissible reasoning to say if you were satisfied that the evidence disclosed, drug dealings by the accused subsequent to the period of the indictment, that that was evidence which indicated that the accused was guilty of the offence charged."
124 The Judge turned to a different evidentiary aspect of this evidence at t/s 714:
"The state [sic] also says to you that some of the references in the recorded material constitute, it says, admissions by one or other of the accused of an involvement in the offence. Before you could use the statement as an admission, it would of course be necessary for you to be satisfied on the evidence that the statement was made and ... before you could use any statement as an admission or as evidence of an involvement or participation in the offence alleged, you would need to be satisfied that an acknowledgement of participation was the only reasonable interpretation that could be placed on the words used in the context in which those words were used."
125 Likewise, in relation to intent, his Honour said (t/s 723):
"In considering the question of intent, if you were satisfied that the accused person had entered into an agreement to possess the methylamphetamine - and you are looking at the question of the intent to sell or supply - you would be entitled to look at the amount of the drug and for the accused person's involvement in the dissemination of drugs in the period immediately or reasonably approximate to the offence, since those matters would clearly be relevant factors to take into account in inferentially concluding what the person's intention was, if that person had obtained possession of the substance.
It was on that issue of intent, as I have explained to you a couple of times, that much of the surveillance material is relevant, the state [sic] says, to you, the recorded conversations, properly interpreted, demonstrate a dealing in illicit substances by the accused persons and that is a factor which you could take into account in determining what the accused person's intention was in respect of the methylamphetamine which we are concerned. I mention it again because it is very important, the fact that an accused person was dealing in drugs, if that be your finding, subsequent to the period alleged in the indictment - or prior thereto for that matter - is no basis for determining that he or she is guilty of the offence charged."
126 His Honour later canvassed the evidence relative to each accused, and with respect to Washer, said (at t/s 734 - 735):
"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."
127 He subsequently gave specific consideration to the case against Di Lena. In that regard, he reiterated (t/s 744):
"Whilst the evidence of that material may suggest that Di Lena was dealing in drugs at the time you cannot reason from that that he committed the offence alleged, and I have already explained to you the method in which, or the manner in which you are able to use that sort of evidence."
128 Having regard to the basis upon and purposes for which the evidence was properly admissible, these directions were appropriate and correct in law.
129 The appellant's submission that ultimately the Judge left the drug dealing evidence to the jury only on the issue of intent to sell or supply is correct. However, that does not assist the appellant. As I have explained, the evidence was relevant and admissible not only on that basis, but also as going to negative innocent association and to show the true colour of the relationship between the conspirators.
130 To the extent his Honour's direction failed to mention this latter aspect, it was unduly favourable to the appellant.
131 There was no requirement for the Judge to direct the jury to ignore evidence of the appellants having dealt in drugs after the alleged conspiracy had come to an end on 2 June 2000. This ground fails.
Grounds 3 and 4 (Washer): Evidence of, and directions on, Washer's previous acquittal
132 These grounds relate only to Washer. Following the Judge's pre-trial ruling that the drug dealing evidence was admissible, it was led by the State at this trial. There was no evidence before the jury that Washer had been charged with, tried or acquitted of the alleged conspiracy with Whitsed and Bowles to (jointly) possess methylamphetamine with intent. Nor was anything said about that in counsel's addresses or his Honour's summing-up.
133 Although counsel for Washer at trial sought to adduce evidence of the previous acquittal, objection was taken and the Judge ruled that he could not do so. That occurred in the course of cross-examination of one of the police witnesses. Counsel asked a series of questions about the recorded conversations. He referred specifically to those between Washer and Bowles on 3 and 7 July 2000 and between Washer and Whitsed on 11 July 2000 and then asked (t/s 463):
"In relation to Mr Washer, Bowles and Whitsed, you in fact charged those ..."
134 The State prosecutor immediately objected and his Honour sent the jury out. There were then the following exchanges (t/s 463 - 464):
"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. ..."
135 Although Garrett turned on the holding that evidence of the earlier rape was simply inadmissible, Barwick CJ did go on to discuss the effect of the direction given by the trial Judge that the evidence was "neutral". I have set out above what his Honour said about that at 445. On that point, his Honour then went on to say that had the evidence been admissible, the summing-up would have been wrong to a significant degree in that respect.
136 There was, understandably, more discussion of the appropriate direction required when the same evidence as resulted in an earlier acquittal was led on a subsequent trial of a different offence, in Storey. On that point, Barwick CJ said (Storey, at 372) that:
"Where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal."
137 It may be noted that the type of evidence to which his Honour was referring was that which would tend to prove the earlier charge or some element of it. Not all evidence will necessarily have that character. The evidence on the earlier trial in respect of a different offence might have had probative value in relation to that offence only in combination with the other evidence in that trial. It may not have the same probative value tending to prove the earlier charge, in the context of different evidence or a different charge.
138 In Storey, Barwick CJ held the whole of the evidence in question was admissible and it did not have to be emasculated in order to ensure the respondents had the full benefit of the earlier acquittal. The Chief Justice went on to say (375):
" If the Crown is not allowed to use the evidence simply to challenge the former verdict and if the presiding judge by suitable direction ensures that the jury understand that full effect must be given to that verdict, the accused will not in any sense have been placed in double jeopardy merely because evidence given at the former trial is repeated in the later trial. That the evidence was so given cannot in itself be a ground for rejecting it."
"It would have been enough to have emphasized that the respondents had been acquitted and that the jury [the Judge] was addressing must give full effect to that verdict: that they must approach their task in relation to the charges of rape on the footing that the accused had been acquitted of having forcibly taken her away from the Clifton Hill railway station."
139 From these passages it can be seen the concern always is the tendency of the evidence to undermine, challenge or controvert the previous acquittal.
140 Where Barwick CJ departed from the majority in that case was not in his conclusion that the evidence was rightly admitted, but that the trial Judge's directions were sufficient to secure to the respondents the full benefit of their acquittal on the charge of abduction.
141 Dealing with the same point, Gibbs J was of the view that a judicial direction will not always be necessary. He said (at 388):
"Where such evidence is admitted it will sometimes be necessary to warn the jury that the accused having been acquitted in the previous proceedings is to be taken as entirely innocent of the offence with which he was then charged. Such a warning will hardly be necessary if the question whether the accused has committed that offence is not raised in the later proceedings, and it would not be likely to occur to the jury to consider that question." (My emphasis)
142 Gibbs J would have allowed the Crown appeal because in his opinion the evidence was properly admissible and there was no misdirection. As he observed (at 390), the jury could have accepted as true every word of what was said in the rape case without necessarily concluding that the respondents had been guilty of abduction.
"Fairness to the Crown and to the accused ... suggests that the totality of the prosecutrix's testimony as to the events occurring at the railway station should have been led at the second trial and that it should have been accompanied by a direction that the respondents' acquittal on the charge of abduction could not be challenged and that the evidence must be understood in this light. The summing up by the trial judge was deficient in that, although his Honour instructed the jury that ' ... you are relieved of the task of considering whether the accused were, or were not guilty of forcible abduction, and you will confine your deliberations to the various counts of rape', he did not give sufficient emphasis to the fact that the jury were bound to accept the verdict of acquittal of the charges of forcible abduction as the only possible view of the evidence relating to those charges ..."
144 The considerations of fairness referred to by Mason J of course were dictated by the nature of the evidence and the circumstances of that case. If all the evidence of the prosecutrix as to the events at the railway station was to be admitted, that would have directly challenged the element that she was taken from the station against her will, an element of the abduction charge. It was the possibility the second jury might find that, which made the direction about the effect of the previous acquittal imperative.
145 In his judgment, Murphy J said (at 412 - 413) that:
"In fairness, the accused should be entitled to prove that they had been acquitted and were innocent of the charge of abduction, that is, of taking by force (or threats of force) with intent to know carnally, and the Crown should concede this in order to give them the full benefit of the acquittal."
146 But that comment followed immediately upon his acceptance that on the second trial the prosecution was entitled to lead the evidence in question even if it tended to establish the elements which had to be proved to secure a conviction of the abduction of which they had been acquitted.
147 In holding that the requirements of res judicata were not inconsistent with the admission of the evidence in question (424 - 425) Aickin J said that was so long as it was made clear to the jury that the prior acquittal could not be challenged and the evidence must not be taken as showing or proving guilt on the prior charge. Again, however, his Honour was talking about what directions were required in that case having regard to the nature of the evidence itself and its tendency to bring into question the previous acquittal. As his Honour said (at 425):
"It will in every case necessarily depend upon the particular circumstances whether such evidence may be given without the jury thinking that it is invited to overturn the previous acquittal."
148 The authorities do not enunciate any binding principle that in every case in which evidence previously led in the trial on a charge of which an accused is acquitted is led on the subsequent trial of that accused on a different charge, the Judge must allow evidence of the acquittal to be given and, or, must direct the jury that the previous acquittal cannot be challenged and the jury must give full effect to it. I do not discern in the authorities any rejection of the proposition articulated by Gibbs J in Storey at 388. It follows that when considering what the law requires in a particular case, it is necessary to have regard to the particular evidence and its evidentiary effect in the context of the subsequent trial. In this case, the question whether Washer had committed the offence of conspiring with Whitsed and Bowles to jointly possess methylamphetamine with intent to sell or supply never arose before the jury, nor would it have been likely to occur to the jury to consider that question. Furthermore, the jury was neither invited nor required to make any finding of fact that any element of the conspiracy of which Washer had been acquitted existed. In these circumstances the trial Judge did not err in refusing to allow Washer to lead evidence of his previous acquittal and nor did he err in not directing the jury they were bound to give full effect to that acquittal. Washer's grounds 3 and 4 have not been made out.
Ground 5 (Washer); Ground 3 (Di Lena) - Direction on involvement or participation in common design
149 As Mr Grace QC advanced his submissions on this ground, it appeared that it did not accurately reflect the point he was seeking to make. He accordingly sought leave to amend, which was granted. The ground, as amended, is:
"3. The learned trial judge erred in law by inviting the jury to take into account the collective force of the separate acts of all other accused persons in determining the appellant's involvement or participation in the common design, thereby giving rise to a substantial miscarriage of justice." (Emphasis in original)
150 The appellant's submissions are as follows. In directing the jury as to the law of conspiracy, his Honour explained that a two-stage process was involved. That involved first, establishing whether there was in fact a conspiracy and secondly, whether the accused whose case was being considered was a party to, involved in, or participated in that conspiracy. His Honour said that in considering each stage, two branches of evidence could be considered. On the one hand they were the acts and declarations of the accused under consideration and on the other, the acts and statements of others. The ground challenges, in particular, the following direction as set out in the appellant's outline:
"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 that common design... Once again, you take into account the separate acts of each accused, including 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 in original)
151 It is then submitted that to the extent that acts or declarations of co-conspirators carried out or made in the absence of an accused suggest that accused's participation in a conspiracy (as distinct from the combination itself), such evidence is admitted as an exception to the hearsay rule, citing Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 at 93 and Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1 at 7. It is contended that by directing the jury as set out in the passage as quoted above, his Honour invited them to use acts and declarations of co-conspirators committed or made in an accused's absence in order to prove that particular accused's participation - and the difficulty with that approach was that there were no such acts or declarations prior to 2 June 2000 "that were sufficient" to prove the participation of that particular accused in the conspiracy.
152 Although senior counsel expressly disavowed any ground going to, or any separate reliance upon, it, the further submission was made that his Honour had not first determined that there was "reasonable evidence" of the combination apart from the acts or declarations of the absent conspirator sufficient to justify the admission of hearsay evidence. This submission was put forward it seems, only to suggest that if his Honour had undertaken that exercise, he would have appreciated there was no such evidence.
153 As always, the challenged direction must be read in the context in which it was given. Relevantly, that was (t/s 719 - 721):
"[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)
154 It can be seen this ground and the submissions made in support of it, are directed to the notion that the Judge was inviting the jury to use the acts and declarations of co-conspirators done or made in the absence of a particular accused, as to that accused's participation in the conspiracy, to prove that participation. That was the notion with which the High Court was concerned in Ahern. It was expressed by the court at page 93, when they explained that a conspirator may, in the absence of another person alleged to be a co-conspirator, say or do something carrying with it the implication that the other person is involved. The test articulated by the court in Ahern at 100 was that:
"... the test adopted in Tripodi is the appropriate one. When an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant."
155 It is evidence of this type which would otherwise be excluded by the hearsay rule. But the Court recognised evidence of a different kind concerning the conduct or words of a co-conspirator tending to prove another accused's participation, which would not be hearsay and would be admissible for that purpose and it is evidence of that kind to which his Honour was referring here.
156 In Ahern, the court drew a distinction between proof of the unlawful combination on the one hand, and proof of a particular accused's participation in it, on the other. In the course of discussing proof of the combination, the court observed (at 93 - 94) that:
"Thus it was said in Tripodi (1961) 104 CLR, at 6 that proof of the crime of conspiracy 'may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment'. For example, it may be possible in a case of conspiracy to commit armed robbery to conclude from the fact that one accused wearing a disguise was present in a bank at the same time as another accused, similarly disguised, was waiting outside the bank in a motor vehicle with the motor running, that both were engaged in a common enterprise to rob the bank. For the purpose of reaching that conclusion it is permissible to use the acts and declarations of each, even in the absence of the other, not as proof of the truth of any assertion or implied assertion of the participation of the other, but as facts from which the combination might be inferred. Utterances for this purpose may be regarded as facts no less than acts and, indeed, in the United States are sometimes called verbal acts. In the example given it would be possible to reach the conclusion, admitting the evidence for the purpose described and considering it against each accused separately, not only that there was a conspiracy but also that each of the two accused was a participant. It was such a situation that Isaacs J had in mind in R and Attorney-General (Cth) v Associated Northern Collieries ('the Coal-Vend Case') [1911] HCA 73; (1911) 14 CLR 387 when he pointed out that both the fact of combination and the participation of the participants may be proved by the same evidence. He said [33] :
' ... though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge'." (Emphasis added)
157 Their Honours then went on in the following passage (at 94) to make it clear that the test which was their primary concern in that case, was not about evidence of the separate acts of a co-conspirator proving both the combination and the participation of the individual accused in it, but about acts and declarations of co-conspirators, done or made in the absence of the accused, led for the purpose of showing that accused's participation:
"However, it is not in all cases that evidence of the separate acts of the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation." (Emphasis added)
158 His Honour's reference in this case to "the collective force of all the accused persons" which the jury might find pointed to the participation of one or more of them, is a clear reference to evidence of the first kind identified by the High Court in Ahern, and illustrated by the bank robbery example. The direction instead concerned evidence of conduct of the co-conspirators which, taken together with the separate acts (and statements) of the particular accused tended to show both the common design and that accused's participation in it.
159 This ground, as are the submissions put to support it, is founded on a misstatement of what the impugned direction was about. I would not uphold ground 5.
Washer - Ground 6 (Di Lena - Ground 4) - "Consciousness of guilt"
160 The submission advanced in support of this ground is encapsulated in the appellants' outlines. It is said that the State's allegation, "in essence" was that the appellants exhibited a "consciousness of guilt" in the listening device and telephone intercept recordings. It is put, for example, that the State's argument with respect to evidence of Washer's conversations about Di Lena, was that his interest in Di Lena was unnaturally high for an innocent person. It is submitted that the argument that by expressing such an interest in Di Lena's welfare, Washer was conscious of his own guilt, was raised "inferentially" in the State's final address, where Washer's interest in Di Lena's fate was relied upon as an implied admission made by Washer. Reference was particularly made to t/s 679 - 680. The submission is that this evidence and the importance it had to the State's case against Washer, called for a consciousness of guilt direction in the form of that postulated in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. It is submitted the effect of such a direction would have been to emphasise, with the authority of the Judge's office, that the appellant's degree of interest in Di Lena did not mean that he was guilty and that there were other good reasons why he may have had this interest. Di Lena was after all, Washer's underling at the motorcycle club.
161 Before turning to deal with the recordings to which specific reference was made in the course of oral argument, which were rather more limited, it is necessary to consider the relevant authorities and then to return to the submissions just mentioned.
162 Edwards was a case about lies said to have been told by an accused in his evidence-in-chief. The prosecution sought to rely upon the alleged lies as corroboration of the complainant's account and as evidence of the accused's guilt. The principle stated by the High Court (Deane, Dawson and Gaudron JJ) in that case (at 210 - 211) was:
"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest (see M v R (unreported; SA Court of Criminal Appeal; 18 August 1993; pp 4-5). And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it (see, eg, Credland v Knowler (1951), 35 Cr App R 48; Tripodi v The Queen [1961] HCA 22; (1961), 104 CLR 1, at p 10; Reg v Buck (1982), 8 A Crim R 208, at p 214; Reg v Preval [1984] 3 NSWLR 647, at pp 650-651; Reg v Evans (1985), 38 SASR, at pp 348-349; People v Showers (1968), 440 P 2d 939, at p 942) and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of 'a realization of guilt and a fear of the truth'.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. (See, eg, Lonergan v The Queen [1963] Tas SR 158, at p 160; Broadhurst v The Queen [1964] AC, at p 457). A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission."
163 The principle has since been affirmed (Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316; Zoneff v The Queen (2000) 200 CLR 234).
164 Zoneff was also a case about lies. Although in that case the Crown had not relied upon the alleged lies of the accused as indicating a consciousness of guilt, the trial Judge referred to his directions to the possibility that they had been told for that reason. The majority (Gleeson CJ, Gaudron, Gummow and Callinan JJ) held that where the Crown did not rely upon the answers of an accused to found a submission that he had lied out of consciousness of guilt, it was unnecessary and undesirable that an "Edwards" direction be given. Their Honours agreed (at [15]) with the suggestion by Hayne JA in R v Morgan, unreported; CA SCt of Vic; 13 August 1996 (at 4) that rigid prescriptive rules as to when and in what precise terms an "Edwards" direction should be given, cannot be comprehensively stated. They went on to say (at [16]):
"There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards [1993] HCA 63; (1993) 178 CLR 193 at 211, 'the accused knew that the truth ... would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)"
165 Their Honours were of the view there that as the prosecution did not either expressly or by implication, suggest that any answer given by the accused was a lie told out of consciousness of guilt, it was not only unnecessary, but was indeed undesirable that an "Edwards" direction be given in the circumstances of that case. It could have had the effect of raising an issue on which the parties had not joined and highlighted issues of credibility so as to given them an undeserved prominence to the prejudice to the appellant. They held the direction should not have been given. Their Honours repeatedly described that case as "unusual", not least of all because (the applicant conducting his own defence) the prosecution had not made a closing address. They referred (at [22]) to the trial Judge's apparent concern that having regard to some of the cross-examination, there was a serious risk that the jury might engage in an impermissible process of reasoning in relation to the matter of lies, and suggested (at [23]):
"A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:
'You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.'"
166 Use of the phrase "consciousness of guilt", in cases where the strength of the evidence does not prove guilt directly, but merely forms part of the body of circumstantial evidence tending to prove guilt, has been criticised. The criticism is that the expression suggests a conclusion about the conduct which undermines the presumption of innocence (Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479 per Winneke P at [19]; R v Franklin [2001] VSCA 79; (2001) 3 VR 9; per Ormiston J at [118]). The preferable approach is to recognise the evidence is just another type of circumstantial evidence and to deal with it as such, describing it in more neutral language than "consciousness of guilt", such as "post-offence" or "after the fact" conduct (R v White [1998] 2 SCR 72 at 85, quoted by Kirby J (dissenting) in Zoneff at [63]).
167 As is apparent from the foregoing, evidence of this kind is not confined to lies. Post-offence conduct has included escaping from police, going into hiding (Melrose v The Queen [1989] 1 Qd R 572), absconding while on bail or from a correctional centre (R v Shaw [1996] 1 Qd R 641) or suborning witnesses to mention a few. The principles explained in Edwards and Zoneff apply just as much to them. But as Street CJ said in R v Sutton (1986) 5 NSWLR 697, 701:
"... reliance by the Crown on collateral conduct eloquent of guilt, such as flight or a lie, is fraught with the risk of miscarriage. The link between the conduct and the crime in question must be demonstrable."
168 The transcript references given in Washer's outline of submissions relate to that part of the prosecution closing address where she discussed the drug dealing evidence. That commenced at t/s 677. At t/s 679 - 680 the prosecutor is talking about conversations between Washer and Whitsed. She puts the proposition that what the jury should glean from the conversations, should be that Washer was talking about the failed drug transaction in a way which indicated not only that he had been involved in it with Di Lena, but also that he regarded it as Di Lena's problem, which Di Lena had to sort out. She continued (t/s 680):
"So Washer is of the view that it's Di Lena's problem because, ultimately, my learned friend Mr Scudds is going to say to you, well, when Washer and Di Lena flew to Brisbane in the July of 2000, they got to Brisbane, they were picked up at the airport, they went to John Skilton's place, one of the Rebels members in the Trans Am, and then Di Lena and Skilton go off together to the pub and have a beer and they come back sometime later in the day. Washer and Di Lena separate. My learned friend Mr Scudds will say to you, 'Well, if this was - if they were in a conspiracy together, then why didn't Washer go?' Because Washer regarded this failed drug transaction as Di Lena's problem. Di Lena had to sort it out. Washer's only role was to get Di Lena over there to sort it out because Di Lena wasn't doing it himself.
There's [sic] also conversations on 3 July 2000 where Washer is engaging in drug discussions with Bowles. They talk about halves, they talk about small customers and so on. On 7 July 2000, Washer is again talking to Bowles and Washer says to Bowles - and he says this, 'Like the way he's done this, John, I'm still going to have to be the one to go over. He's spineless. Give him the rope and he will hang himself eventually.' So Washer is talking about having to go over with Di Lena."
169 These and the following parts of the prosecutor's address advance an argument that the particular remarks by Washer which are relied upon can be taken by the jury as implied admissions by him of his involvement in the conspiracy. These were not relied upon by the State as demonstrating a "consciousness of guilt". It was a matter for the jury to make their own assessment of what Washer was talking about in these conversations and what he meant. The Judge gave a proper direction about this evidence (at t/s 734 - 735):
"... 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 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 says [sic] 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."
170 His Honour concluded his directions about Washer specifically by summarising (at t/s 736) the way the State was putting its case:
"In respect to the case against Washer, the state [sic] says that having regard to his pre conspiracy period association with Di Lena, the trips by himself and Di Lena to Brisbane both before and after the period alleged in the indictment, the entries in the red book and the content of his recorded discussions, the only reasonable inference, the compelling inference is that he was in a criminal partnership with Di Lena to possess the methylamphetamine being conveyed in the hire car.
Further, having regard to what the state [sic] said is evidence of his involvement in drugs, the intercepts, it is clear that his intention was to acquire it for sale or supply. ..."
171 If satisfied Washer was talking about drugs and the failed drug importation into Western Australia, it was open to the jury to conclude that was evidence about the existence of a conspiracy and his participation in it. It was not a question of competing inferences at all. No other conversations or transcript references were relied upon by senior counsel for Washer in support of this ground. Accordingly, Washer's ground 6 must fail.
172 As the submissions on behalf of Di Lena were developed in oral argument, counsel identified specific portions of the prosecutor's final address which he said referred to particular conversations, the subject of Di Lena's ground 4.
173 The references include Di Lena telling Scott on 24 July 2000 (CSN 290) that Fisher was a "needle head" and her saying "as long as he's not doing anything, saying anything" that was going to get him into trouble with anyone, and Di Lena's reply that it would be "a junkie's word".
174 The next reference was to a conversation between Di Lena and Whitsed on 24 July 2000 (CSN 295) in which Di Lena speaks of having been watching Washer and having learned some valuable lessons from him to "... just look after ourselves" and "stick by each other" and that he had been letting everyone in the Chapter down because he had been acting "too high and mighty" but he had really woken up to it now. This conversation is mentioned by the prosecutor at t/s 688, but only the course of her narrative of the events. It can only go to provide contextual background to the relationship between the appellants. It has no greater relevance than that. The prosecutor did not suggest it had. She certainly did not suggest (even by implication) that it was evidence capable of demonstrating a consciousness of guilt. I cannot see how this ground could possibly be made out in respect of this evidence.
175 The appellant lists part of the conversation between himself and Scott on 7 September 2000 (GAB 110) in which they express general concern about Fisher and discuss how to respond to police questions and to Fisher "rolling". About this conversation, the prosecution said to the jury (t/s 688):
"Di Lena talks about Rob's missus and says, 'She's obviously rolled to as much as she knows, which, let's hope, she only knows so much. Know what I mean.' This is Di Lena talking about what Lennon knows and his concern about what Lennon is doing, concerned that if Rob rolls, then - 'If Rob's rolled, then houses would be raided.' Di Lena tells Scott that she doesn't have to answer all the questions and has to say, 'Look, I don't know what's going on.' Di Lena tells Scott if the police can't link them to anything, the police are then unable to say they were involved in it. So it's more than just rumour and innuendo. Di Lena, you might think and Scott are concerned about Rob rolling, talking to the police and the police then coming to them."
176 Once again, the prosecutor is simply narrating the course of events as revealed by the evidence, but arguing to the jury that the cumulative effect of them indicates a knowledge of the failed drug transaction, the existence of a conspiratorial agreement in relation to it and Di Lena's participation in it.
177 The same is seen to be so by the next conversations identified, they being between Di Lena and others, including Scott, on 13 September 2000. Counsel for Scott at the trial had put to the jury that when Di Lena had first asked Scott to put the hire car for Fisher on her credit card, she had refused. He told her that indicated she could not have been party to any agreement involving use of that car to come into possession of drugs. The counter argument put by the prosecutor was that the obvious reason for Scott refusing was because it would have directly linked her and Di Lena with the car (and hence the drugs) if anything went wrong. She then continued (t/s 671):
"Here we have her drug-dealing boyfriend asking her to pay for a hire car on a bloke she hardly knows, doesn't know anything about his financial situation, doesn't really know why he's in Brisbane and doesn't know how long it's going to take for him to get back to Perth but she willingly, after John Di Lena tells her he's got the cash when he gets back, says, 'Okay, I'll hire it.' Or is it the case, members of the jury, that Di Lena and Scott had an interest in these drugs and when there were no other options available to Fisher, that afternoon, on 30 May, she caved on [sic] because there were no other options available. You can't have your courier and two kilograms of drugs sitting in Brisbane when you want them in Perth and that's what really changed between the morning and the afternoon. No other options."
178 To this extent, the conversations were relied upon as implied admissions and they did not require any direction in terms of either Edwards or Zoneff.
179 The prosecution made no mention of the quite extensive parts of the conversation in which Di Lena and Scott talk about getting their stories straight and agreeing that Di Lena knew nothing of what Fisher was doing in Queensland, but when Fisher asked him to help him by hiring a car in Queensland so he could drive back to Perth, Di Lena said he would and then asked Scott to authorise it on her credit card, when she did as a favour, and it came as a complete surprise to both of them to later be told there were drugs in the car.
180 It was never suggested to the jury these conversations were probative because they demonstrated a "consciousness of guilt". They were relied upon as part of the combination of circumstances which together pointed (the State said) irresistibly to the existence of the conspiracy and Di Lena's participation in it. Counsel for Di Lena submits the trial Judge was obliged to direct the jury that there was an alternative hypothesis which they would have to have excluded beyond reasonable doubt before they could rely on this evidence as tending to prove guilt. That hypothesis, it is said, was that Di Lena and Scott were naturally concerned about what had happened to Fisher, as a person who they knew and with whom they were (innocently) associated, had spoken to a lawyer about what might happen and were doing nothing more sinister than discussing what in fact their involvement had truthfully been. That alternative view of the evidence had been squarely put to the jury at some length by Di Lena's counsel at trial. In fact, the trial Judge expressly remind the jury of what had been put on Di Lena's behalf in this respect.
181 I have already set out in my consideration of ground 2 some of the directions given by the trial Judge which also bear upon Di Lena's ground 4. I will not repeat them. His Honour first distinguished between those parts of conversations upon which the State relied as admissions by one or other of the accused of an involvement in the offence. At t/s 714 (which I set out at [124] above) he gave a specific and appropriate direction about that.
182 Later, his Honour reminded the jury the case against each accused was circumstantial and so the prosecution was relying on inferences to be drawn from all the circumstances. He explained the nature of circumstantial evidence and gave examples of the drawing of inferences. At t/s 727 the Judge instructed the jury that before they could draw an inference or come to a conclusion against an accused, they had to be satisfied it was the only reasonable inference that could be drawn consistent with the proven facts. He told them they had to ask themselves whether there were any other explanations which commonsense and human experience would tell them were not fanciful and were open on the facts they found to be established. The Judge explained that before they could an inference adverse to an accused, they had to be satisfied it was the only reasonable inference capable of being drawn from the facts found by them.
183 He turned to a consideration of the evidence, first that which was applicable to all of the accused generally, and then to that which related only to a particular accused.
184 Pertinent to Di Lena's ground 4, having referred to the conversation between Di Lena and Scott on 7 December 2000 in which they talk about it being obvious that "Rob" (Fisher) had not said anything because otherwise there would have been police raids, his Honour said the State case was that the conversation "was a clear acknowledgement of their involvement in what had taken place". He referred to the conversation between Di Lena and Scott on 13 September 2000 and said (t/s 738):
"... there was discussion about just getting our stories straight and De Lina [sic] outlined his account of the situation. The state [sic] would say there is reference to a comment that unless we admit to anything they can't prove the case. This is the conversation where the state [sic] says that Scott indicates that she was not happy to hire the car because it linked directly to her what was taking place.
The state [sic] says that's the only proper interpretation on that discussion but that's a matter that you will need to visit having regard to the directions that I have given you."
185 His Honour then briefly summarised the way the State was putting its case against Di Lena, before turning to the evidence in respect of Scott.
186 After that, the Judge reiterated that in general terms the State case was based upon evidence of a number of facts which, the State said, when viewed in isolation, might not be of great consequence, but the cumulative effect of which, when viewed in their totality, established the conspiracy beyond reasonable doubt.
187 Later, his Honour turned to what had been put forward on behalf of each of the accused. In relation to Di Lena, he pointed out the intercepted telephone and listening device product involving him all occurred well after the termination date of the alleged conspiracy. He discussed various aspects of the evidence concerning Di Lena, and as to the recorded conversations themselves, reminded the jury (t/s 746):
"It is said on Di Lena's behalf that the telephone intercepts and listening device product of which he would necessarily be unaware are [sic far] from being evidence of guilt properly understood contain protestations of innocence and non involvement with the Fisher transportation of drugs. Reference was made to the fact that Scott gave evidence that Di Lena was obsessed with the situation; that he had obtained legal advice and having regard to that and his obsession it is not surprising that he would be discussing with Scott the advice that he had been given, and that is the only proper interpretation to be placed on the calls, not plotting or planning to get stories straight."
188 That was an accurate and sufficiently comprehensive reiteration of the alternative construction of those conversations, which had been advanced on behalf of Di Lena. Combined with his Honour's directions on circumstantial evidence and the drawing of inferences, the jury could have been in no doubt that if they thought that alternative was a
reasonably possible explanation of the conversations, they could not rely upon that evidence in any way as evidence of guilt.
189 In my opinion, having regard to the way in which the State had put its case, nothing more was required. In particular, it was not a case in which a direction such as that contemplated in either Edwards or Zoneff was necessary. Di Lena's ground 4 must also fail.
190 As no ground in either appellant's appeal succeeds, each appeal must be dismissed.
191 PULLIN JA: I have had the advantage of reading a draft of the reasons for decision of Roberts-Smith JA. I agree with his Honour's reasons and the orders proposed. I wish to add only the following comments concerning Washer's ground 5 and Di Lena's ground 3 which complain about the trial Judge's direction concerning involvement or participation in the conspiracy.
192 These grounds I found difficult to understand by reference to the written and oral submissions. The written and oral submissions suggest that the complaint is that there was "no reasonable evidence" (see Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 at 100) which would make admissible the evidence of participation via acts done or words uttered outside the presence of an accused. These submissions do not relate to the ground which is directed to an erroneous direction to the jury. It is therefore unnecessary to say, but I do say, that there was reasonable evidence to conclude that there was a conspiracy.
193 The written submissions for Di Lena also read that:
"... the Judge had not first determined that there was 'reasonable evidence' of the combination of all co-conspirators apart from the acts or declarations of the absent conspirator sufficient to justify the admission of hearsay evidence. This is not and can never be a task for the jury: see Ahern."
194 The last sentence in the passage quoted suggests to me that the complaint is that the trial Judge's direction was wrong because it left the jury with the impression that they had to decide whether there was admissible reasonable evidence of a conspiracy before considering evidence about participation. See Ahern at 103.
195 The fact is, however, that the trial Judge did not invite the jury to decide any question of admissibility.
Di Lena
The State of Western Australia [2006] WASCA 162
(1977) 139 CLR 437
(1988) 165 CLR 292
(1998) 197 CLR 316
(1993) 30 NSWLR 510
(1978) 140 CLR 364
(2000) 98 FCR 204
(1992) 1 Tas R 193
(2005) 80 ALJR 537
(2005) 79 ALJR 1337
(2000) 199 CLR 620
(1997) 22 Fam LR 592
(1911) 14 CLR 387
(1988) 165 CLR 87
(2005) 31 WAR 122
(1993) 178 CLR 193
(1989) 167 CLR 590
(1998) 194 CLR 202
(1994) 182 CLR 461
(2002) 213 CLR 635
(2001) 3 VR 9
(1986) 5 NSWLR 697
(1994) 181 CLR 251
(1989) 168 CLR 266
(1984) 152 CLR 528
(1961) 104 CLR 1
(2000) 200 CLR 234
(1997) 187 CLR 384
(1994) 12 WAR 133
(2003) 217 CLR 1
(1946) 73 CLR 566
(2003) 58 NSWLR 700
(1999) 76 SASR 56
(2001) 189 ALR 633
(1982) 150 CLR 580