Lee v Regina

Lee v Regina (1998) 195 CLR 594 R v Macraild (Dunford J, unreported 18.12.87) CASES CITED : Ahern v The Queen (1998) 165 CLR 87 Tripodi v The Queen (1961) 104 CLR 1 Daniel v Western Australia (2001) 186 ALR 369 Regina v Brownlee (1999) 105 A Crim R 214

PARTIES : LANDINI, Henry Charles v. STATE OF NSW & ORS

P: C Steirn SC/P Barham/P Strain COUNSEL : 1D: J Maconachie QC/D Mallon 2D: A Katzmann SC/I Butcher 4D: P Strickland SC

P: Burn & Swift SOLICITORS : 1D: I V Knight 2D: Australian Government Solicitor 4D: Dibbs Barker Gosling

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HENRY CHARLES LANDINI v. THE STATE OF NEW SOUTH WALES & ORS

1 HIS HONOUR: On 10 April 2006, 2 June 2006 and 16 October 2006, a witness, given the pseudonym, Mr. X, was called to give evidence in the plaintiff's case. 2 The witness gave evidence that in 1979 he took up duties as an officer of the Australian Federal Police following the disbandment of the Customs Department in which he formerly worked. In 1982, he was seconded to a Commonwealth/State joint taskforce on drug trafficking. 3 According to Mr. X's evidence, there were a number of New South Wales Police Officers appointed to the joint taskforce including a Mr. Donaldson. Commonwealth police officers had also been appointed to the taskforce. Mr. X said that he was the most junior police officer attached to the joint drug taskforce both in terms of years and experience. He stated that he was involved in an operation called Operation Snooker/Pickaxe. That operation involved a number of targets. The plaintiff was one of those targets. The operation was directed to the investigation of an alleged importation and distribution of heroin. According to Mr. X, Mr. Donaldson had overall carriage of Operation Pickaxe and he received instructions from Mr. Donaldson and also from Mr. Pattle, the fourth defendant in the present proceedings. 4 Mr. X said that he commenced surveillance work in relation to the targets of Operation Pickaxe in July 1982. He said that on 19 July 1982, he was on surveillance duties, that being the date on which the plaintiff was arrested. Mr. X had been involved in the surveillance of targets Mr. and Mrs. Thompson and he was also involved in the arrest of a person named Smittant at the Hilton Hotel in Sydney on 19 July 1982. He said that, at the time of the arrest, Mr. Dave Allen and Mr. Chris Dent were with him, they also being police officers and members of the joint taskforce. 5 On the night of 19 July 1982, the plaintiff was arrested by Mr. Donaldson. Mr. Paynter and the fourth defendant, took part in the events leading up to the plaintiff's arrest. The plaintiff was taken to CIB headquarters that evening. 6 After the arrest of Mr. Smittant, Mr. X and Mr. Dent, according to Mr. X, took Smittant to the CIB to be interviewed. The interview, to the best of his recollection, was held in the Armed Hold-Up Squad offices. At some point Mr. Dent left his presence and returned a short time later and had a conversation with him. It is this conversation that was the subject of objection and is to be dealt with by the ruling to which this judgment relates. The evidence has been admitted on a limited basis pursuant to s.52(2) of the Evidence Act 1995. The question now is whether, as the plaintiff submits, it should be admitted as evidence in the form of an admission pursuant to s.87 of that Act. 7 In support of its admissibility, Mr. Steirn, SC. relied, in particular, upon the provisions of s.87(1)(c) of the Evidence Act 1995 (NSW). That provision is concerned, inter alia, with admissions by a party where it is reasonably open to find that the representation in question was made by a person in furtherance of a common purpose (whether lawful or not) that the person had with a party or one or more persons including the party. 8 In support of its admissibility, Mr. Steirn contended (t.592):- "We say that it is further evidence of an unlawful agreement to fabricate evidence against Mr. Landini and rely on what the High Court in Regina v. (sic) Ahearn … we say that we are attempting to prove circumstantially that he said something to Mr. X to fabricate evidence and therefore unlawfully." 9 Mr. Steirn also submitted that (at t.592):- "… we anticipate there would be further evidence linking Mr. Pattle and Mr. Donaldson in relation to the present proceedings with an unlawful agreement to fabricate evidence against the plaintiff …" 10 Mr. Strickland, senior counsel for Mr. Pattle, made oral submissions on 13 October 2006 and written submissions dated 8 March 2007. Senior counsel for the first and second defendants adopted those submissions. Mr. Maconachie, QC., on behalf of the first defendant, raised a number of additional matters in support of the first defendant's objection. These were embraced and adopted by Ms. Katzmann, SC., on behalf of the second defendant and Mr. Strickland, SC., for the fourth defendant. Mr. Maconachie also relied upon his written submissions dated 26 February 2007. Ms. Katzmann relied upon her written submissions dated 26 February 2007. 11 On 2 June 2006, Mr. X gave evidence (to.1271) that whilst at the CIB offices with the target Smittant on 19 July 1982, Mr. Dent left the floor on which those offices were located and was gone "for some short period of time, and then returned". 12 Mr. Dent stated, according to Mr. X, before he left Mr. X, that he was going to "go down and speak to Donaldson …". 13 Mr. X, over objection, gave evidence that Mr. Dent said:- "I'm going down to see Donaldson to work out what we're going to put to Smittant during the record of interview." 14 He said that Mr. Dent left the room and returned a short time later, at which point he had a further conversation with Mr. X. To the best of his recollection, he said no-one else was present besides himself and Mr. Dent. Mr. X said that Mr. Dent then said to him:- "We've got Landini. We've got him out at the Kentucky Fried Chicken. Paynter's let a couple go across Parramatta Road. They have given him a gun and a knife." 15 Mr. X in further evidence said that he understood the words "given him a knife" meant that "they had fabricated evidence in respect of Mr. Landini being in possession of a knife". He also said he understood the reference to the giving a gun as meaning that the gun had been "planted" on the plaintiff. 16 The following matters in relation to the evidence of Mr. X as to what Mr. Dent is alleged to have said are noted:-

(a) The conversation is said to have occurred when, as noted above, Mr. Dent and Mr. X were alone together at the CIB offices.

(b) Mr. Dent had earlier that evening been involved in the arrest of Smittant at the Hilton Hotel Sydney and was not present at the Kentucky Fried Chicken premises where the plaintiff was arrested.

(c) Mr. X said Mr. Dent went down to speak to Mr. Donaldson. Mr. Donaldson stated in evidence that it was Mr. Dent who came to see him in Mr. Donaldson's office at CIB headquarters that evening. Mr. Donaldson accepted that he spoke to Mr. Dent that evening.

(d) Mr. X's account of what Mr. Dent allegedly said to him does not record who Mr. Dent said spoke about the events surrounding the plaintiff's arrest. For the purpose of this ruling on evidence, if it were ultimately accepted that the words attributed to Mr. Dent were said, then at least one possible inference is that Mr. Dent was conveying something said to him by Mr. Donaldson. 17 The chain of communication on that assumption was Mr. Donaldson to Mr. Dent and Mr. Dent to Mr. X. What was allegedly said by Mr. Dent to Mr. X as to what Mr. Donaldson had said to Mr. Dent was in the nature of hearsay evidence. See Lee v. Regina (1998) 195 CLR 594. 18 For s.87(1)(c) to apply it must be "reasonably open" to the Court to find that:-

(a) Mr. Dent, who is said to have made the representation , made it "in furtherance of" a common purpose whether lawful or not.

(b) Mr. Dent had a common purpose with a party to the proceedings (eg., the fourth defendant Pattle, and/or the fifth defendant Matinca and/or the first or second defendants) or with one or more persons including a party. 19 In relation to the pre-conditions of s.87(1)(c), I note the following:-

(a) In Regina v. Macraild (18 December 1987, BC 9707215), Dunford, J. (with whom Sully and Simpson, JJ. agreed) stated that s.87 reproduces the common law relating to representations made by co-conspirators: Ahern v. The Queen (1998) 165 CLR 87; or in furtherance of a common purpose: Tripodi v. The Queen (1961) 104 CLR 1.

(b) Under the common law, an admission by A is admissible against B if the court decides that there is "reasonable evidence" of common purpose and the admission was made in furtherance of that common purpose: see Ahern (supra).

(c) The pre-conditions specified in s.87(1)(c) depend, inter alia, upon whether "… it is reasonably open to find that …" the representation made by Mr. Dent to Mr. X was in furtherance of a common purpose that Mr. Dent had with a party or one or more persons including a party. The expression "common purpose" is a familiar one particularly in the field of criminal conspiracy. See, for example, Tripodi (supra) at 6 to 8. It, generally speaking, involves the concept of a combination or some form of preconcert formed between two or more persons to do an act or acts of a particular kind. When used in s.87(1)(c), it applies to a common purpose whether that common purpose be a lawful one or not. I have concluded that it is not possible on the evidence to make a finding that Mr. Dent was a party to a common purpose within s.87(1)(c) at the time the representation was allegedly made. I will explain the basis for this conclusion below.

(d) The phrase "in furtherance of" carries with it the ordinary English dictionary meaning encapsulated in the word "furtherance" , namely, the fact of being helped forward; the action of helping forward; advancement, aid, assistance: Shorter Oxford English Dictionary, fifth ed., Vol. 1, p.1053. In the context of s.87(1)(c), it denotes an act done to advance, aid or help a common purpose whether that purpose is a lawful one or not. 20 I have, inter alia, given consideration in determining whether there is evidence to support a finding of common purpose within s.87(1)(c) to two matters:-

(a) Firstly, whether, inferentially, it would be open to find that Mr. Dent was a party to a common purpose with one or more of the parties. In this respect, if it be assumed that what Mr. Donaldson is said to have said to Mr. Dent is capable of being understood as a disclosure by Mr. Donaldson of unlawful actions by police officers at the Kentucky Fried Chicken premises to "load" or fabricate evidence during an arrest, whether such alleged disclosure may be seen as made by Mr. Donaldson to Mr. Dent in circumstances in which Mr. Donaldson, it might be inferred, was comfortable in the knowledge that Mr. Dent would not expose or disclose such activities because he, Mr. Dent, was on some basis, complicit in a common purpose with a party.

(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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