(b) Secondly, the membership of the joint taskforce including, in particular, Mr. X, Mr. Donaldson, Mr. Dent, Mr. Pattle and Mr. Matinca and others and their involvement or participation in Operation Snooker/Pickaxe.
21 I will return to the above matters below.
22 Membership of a particular group would not normally permit the inference of authority to make statements on behalf of the group for the purpose of applying s.87(1)(a) of the Evidence Act: Daniel v. Western Australia (2001) 186 ALR 369 at [9] per Nicholson, J.. In this case also membership of the joint taskforce and involvement in Operation Snooker/Pickaxe would not necessarily and of itself establish a common purpose within the meaning of s.87(1)(c).
23 It is, as stated above, necessary, for the purposes of admissibility under s.87(1)(c), that it is "reasonably open to find" that the pre-conditions in s.87(1)(c) exist. Whether the representation was made in furtherance of a common purpose is a matter to be determined on the balance of probabilities: Regina v. Brownlee (1999) 105 A. Crim. R. 214 at [20].
24 The representation said to have been made by Mr. Dent, to be admissible under s.87(1)(c) must, as Mr. Strickland submitted, more precisely be a representation made by him in furtherance of a common purpose that existed at the time it was made between himself and a party to the proceedings to falsify or fabricate evidence against the plaintiff or to take steps to that end.
25 A representation will usually need to be more than a narrative statement of account of some past event in order for it to be a representation described in s.87(1)(c): Tripodi (supra) at 7. Representations within that provision will often be in the nature of directions, instructions, arrangements or statements accompanying acts, as has been observed, is usually the position concerning the admissibility at common law of statements against parties to an unlawful conspiracy or combination: see Tripodi (supra) at 7. It is, of course, possible to envisage a statement concerning a past activity that may carry with it an implication that the activity is to form the basis for a future arrangement and thereby relate to a combination or common purpose that existed at the time the statement was made. However, I do not consider that applies to the statement said to have been made by Mr. Dent.
26 The statement in question said to have been made by him to Mr. X is not in the nature of a direction, instruction or arrangement. Nor could it be said that there is evidence from which a finding could be made that the statement in question was one which was capable of advancing, aiding or helping a common purpose such as that relied upon by the plaintiff in the present proceedings.
27 The plaintiff has relied, in relation to the matter under consideration, upon evidence given by Mr. X in relation to his evidence as to statements allegedly made by Mr. Donaldson to him concerning the preparation of his own statement of evidence, the claim that there was a "scrum down" and other matters related thereto as "evidence of pre-concert". I have borne this evidence in mind as well as the evidence of Mr. Matinca in relation to his evidence concerning Mr. Donaldson and the making of his statement in determining whether such matters are relevant to the plaintiff's contention of a common purpose within s.87(1)(c). I do not consider that evidence on those matters that are said to have occurred on and after 20 July 1982 assists in the resolution of the particular ruling under consideration as relevant to Mr. Dent's alleged participation in a common purpose.
28 Further, the matters referred to in paragraph [20] cannot, in my opinion, in themselves constitute evidence sufficient for a finding in terms of s.87(1)(c). Whether or not they may conceivably, in some way, be relevant to a non-hearsay purpose, is a matter about which I do not express any conclusion.
29 It follows that there being no evidence of a common purpose involving Mr. Dent within s.87(1)(c), that the alleged representation by Mr. Dent to Mr. X cannot be found to be one made in furtherance of such a combination or purpose.
30 Accordingly, the statement of Mr. Dent to Mr. X cannot be admitted under s.87(1)(c) as an admission by Mr. Donaldson.
31 Ms. Katzmann sought a reconsideration of my ruling admitting the evidence of Mr. X under s.57(2) of the Evidence Act as to the statement attributed to Mr. Dent to which I have referred. The alleged statements, if accepted, attributed to Mr. Donaldson and of Mr. Dent to Mr. X may be regarded as verbal acts by Mr. Donaldson and/or Mr. Dent in his statement to Mr. X. Given my ruling referred to in paragraph [30], the question ultimately is whether, for a non-hearsay purpose, any such verbal acts could be relevant to facts in issue including, in particular, whether a combination or common purpose existed at all, if so when it existed and, depending upon the answer to the questions, possibly to the identity of the participants in any such combination.
32 The evidence of Mr. X as to what was allegedly said by Mr. Dent, if ultimately admitted and accepted as relevant can, accordingly, be evidence admitted only for a non-hearsay purpose or purposes.
33 Whether the evidence of Mr. X referred to above is relevant to any or all of facts referred to in paragraph [31] remains to be determined at the conclusion of the evidence in the proceedings.
34 Accordingly, I decline to reconsider my previous ruling in relation to the admission of evidence in question given by Mr. X on the basis upon which it has been admitted. Further, the evidence having been admitted as provisionally relevant for a non-hearsay purpose, the application made on behalf of the second defendant pursuant to s.136 of the Evidence Act does not, at this point, arise for determination.
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