[A]s you know, in this trial you have heard evidence of things said and things done by persons other than the accused and in the absence of the accused.
Specifically I am referring here of course in particular to the evidence of what Kevin Smith said and did in the accused's absence, and in particular in dealing with Operative 69. He had telephone conversations with Operative 69, Kevin Smith did, and that evidence is in before you, and he had secretly taped face-to-face conversations with Operative 69, particularly in the carpark at the Great Eastern Motor Lodge, and that evidence is before you. Generally evidence of what is said by a person other than the accused and not in the presence of the accused is not admissible against an accused person at his trial because it's hearsay.
Just because somebody says or does something when the accused isn't there shouldn't as a general rule be regarded as relevant in deciding whether an accused is responsible and liable to be convicted in respect of a charge but there is an exception to that rule and it arises in this way: where the evidence of words spoken by others, or the conduct of others, supports the conclusion that the accused was a participant in a joint criminal enterprise and I have explained what I mean by that to you, an agreement or an understanding or an arrangement to commit a criminal offence; when the evidence supports the conclusion that the accused is a participant in a such a criminal enterprise then things said or done in pursuance of that enterprise can be taken into account by you as evidence against the accused.
That's how then you're able to approach the evidence of what Kevin Smith might have said to Operative 69 and what he might have done in respect of this matter. If you are satisfied that the accused was a participant in a joint criminal enterprise with Smith you may use what Smith said and did in the absence of the accused against him in deciding whether the accused is guilty as charged here, or otherwise guilty as an accessory after the fact.
The state says there was this joint criminal enterprise here. If you look at the - and listen to the evidence of the telephone calls, in particular for example if you look at what Mr Heaton himself says to Smith on the phone concerning arrangements for the collecting of money, the state asserts - the state submits you can be satisfied there was a joint criminal enterprise. If you are satisfied of that you can use what Smith says to Operative 69, as recorded, as a - in considering whether the accused is guilty as charged.
So it's in that way, members of the jury, that that kind of evidence which you have heard and seen in this case, evidence of things said and done by persons other than the accused and in the absence of the accused, is before you for your consideration (ts 731 - 734).