O'KEEFFE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 99 (11 May 2007)

"AND FURTHER THAT on 5 April 2002 at Forrestfield TYSSUL DAVID DAVIES attempted to pervert the course of justice."

4 Clause 9(1) of Sch 1 to the Criminal Procedure Act 2004 (WA) provides that if an indictment contains two or more charges, the charges must be tried together unless a court otherwise orders under the Criminal Procedure Act 2004.

5 Pursuant to s 133(4) of the Criminal Procedure Act 2004, if a court is satisfied that an accused is likely to be prejudiced in the trial of an indictment because it also charges one or more other accused, the court may order that one or more of the accused be tried separately from the other or others. Section 133(5) reads:

"In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -

(a) to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;

(b) to so decide irrespective of the nature of the offence or offences charged; and

(c) to so decide even if -

(i) the evidence on one of the charges is inadmissible on another; or

(ii) the evidence against one of the accused is not admissible against another,

6 The appellant applied to Mazza DCJ for a separate trial. On 5 September 2006, his Honour dismissed the application.

7 The appellant is a police officer who worked at the Fremantle police station. He was a friend of his co-accused, Davies. He was observed on 29 March 2002, together with Davies and another man, Brittain, at a picnic. The appellant was also a friend of Inspector Clay and another policeman, a Mr Steve George. Inspector Clay worked at the Midland police station as did Mr George, who was the officer in charge of the Midland Tactical Investigation Group ("TIG").

8 Mr Davies had become the focus of a police investigation and telephone calls to his mobile phone were being intercepted and transcribed. A decision was made by the police to conduct a search of Davies premises which were in Forrestfield.

9 On 4 April 2002 at approximately 2.10 pm, Detective Sergeant Dockery of the Organised Crime Investigation Unit ("OCI") telephoned Detective Sergeant George at Midland TIG to see if he could help out with a search of Davies' property at Forrestfield the following day. Mr George said that his men were not available.

10 At 2.30 pm on 4 April 2002, Detective Sergeant Dockery telephoned Detective Sergeant Graham of Midland Detectives and was able to secure his assistance for the proposed search of Mr Davies' property the following day.

11 At 3.48 pm on 4 April 2002, a telephone call was made from the Midland police station to Inspector Clay's mobile phone. The call lasted for two minutes and 42 seconds.

12 At about 4 pm on 4 April 2002, Detective Sergeant Dockery arranged for Detective Haas of OCI to make the arrangements for the search of Mr Davies' property. Detective Haas then made contact with Detective Sergeant Graham of Midland Detectives for the arrangements concerning the search the following day and arranged for a search warrant to be issued.

13 At 4.30 pm on 4 April 2002, the appellant finished work. At 5.09 pm on 4 April 2002, a telephone call originated from the Midland police station to Inspector Clay's mobile phone. It lasted for 56 seconds. At 5.36 pm on 4 April 2002, another phone call originated from the Midland police station to Inspector Clay's telephone. It lasted for two minutes and 54 seconds. At 6.18 pm on 4 April 2002, the appellant used his mobile phone to call Inspector Clay on Inspector Clay's mobile phone. The call lasted for 19 seconds.

14 At 6.48 pm on 4 April 2002, the appellant went to a public telephone box close to his home. He telephoned Mr Davies on his mobile phone and the following conversation was recorded: The letter "M" is a reference to the appellant and the letter "D" is a reference to Mr Davies.

"2048 MALE rings DAVE

(Traffic in background)

1. Hello
2. UNK no names please
3. Yeah
4. just uh be very careful next few days
5. Okay laddie
6. Catch ya later mate
7. Catch ya"

15 At 11.40 am on 5 April 2002, police officers arrived at Mr Davies' Forrestfield property to execute the search warrant. Mr Davies was not at home when the police arrived. Police introduced themselves to Mr Davies' wife and gave her a copy of the search warrant and commenced the search. No drugs were found during the search, but the police did find paraphernalia commonly associated with drug use, namely smoking implements.

16 It is then necessary to refer to some evidence of out-of-court statements which would be admissible against Mr Davies in the case against him, but would be inadmissible hearsay evidence in the case against the appellant. The evidence was as follows.

17 At 11.42 am on 5 April 2002, police used a mobile telephone and spoke to Mr Davies and told him that they were at his house and wanted to know if he would be home soon. At 11.45 am on 5 April 2002, Mr Davies on his mobile phone, called a person called Mary and told her that the police were at his house doing a raid. He told her that he had "cleaned up for 'em this morning so it should be right". At 11.49 am on 5 April 2002, Mr Davies called someone called Brittain and told Brittain that the police were searching his house. Mr Davies told Brittain that the police would not have any luck because "our mate from ah picnicking ... gave us a tinkle yesterday". At 11.54 am on 5 April 2002, Davies on his mobile telephone, called a person called "Filthy" on his mobile phone and told him about the raid on his house. Davies told Filthy that it was all right as he had "got the nod yesterday".

18 At 12.10 pm on 5 April 2002, Mr Davies arrived home to the waiting police. They obtained his consent to have two teams of police searching the property, one team to have Mr Davies in their presence. During the course of the search, Mr Davies told the police that they would not find anything as he knew they were coming.

19 Mazza DCJ summarised the prosecution case in the following words:

"In very broad terms, the state allege that Mr O'Keefe [sic], who was at the relevant time a serving police officer, and Mr Davies were friends. On 4 and 5 April 2002 the police were monitoring Mr Davies' telephone. At about 8.48 hours - that may be eastern time so it might be 6.48 hours western time - on 4 April 2002 the police intercepted a very brief telephone call from Mr O'Keefe [sic] to Mr Davies during which Mr O'Keefe [sic] is alleged to have said, 'Just be very careful next few days.'

According to the state, Mr O'Keefe [sic] had become aware of police interest in Mr Davies and was tipping him off over an impending police search for drugs of Mr Davies' property. The next day, 5 April 2002, the police executed a search warrant at Mr Davies' property and found no drugs. The police alleged that Mr Davies had got rid of any illicit drugs as a result of Mr O'Keefe's [sic] warning the day before.

So the state's case is that Mr O'Keefe [sic] attempted to pervert the course of justice by warning Mr Davies of the impending search, and Mr Davies committed the same offence by getting rid of evidence which would have been revealed in the search and which may have implicated him in the commission of a drug offence."

20 His Honour noted that it was obvious that although the accused were charged separately with the same offence, the two cases had much in common. His Honour observed that the common aspects of the two cases included the relationship between the two men, their contact on 5 April 2002 [sic 4 April] and the search which occurred on 5 April 2002. His Honour noted that he was satisfied having regard to the common facts and subcl 7(3) of Sch 1 of the Criminal Procedure Act, that the two charges had been properly joined in the one indictment. No submission to the contrary is made to this Court.

21 His Honour then correctly noted however, that this did not preclude the application under s 133(4) of the Criminal Procedure Act. His Honour set out the section and the provisions of s 133(4) and (5). His Honour referred to the submission made by the appellant's counsel that evidence which was to be led against Mr Davies, was hearsay against the appellant and inadmissible against him. His Honour said:

"The evidence which Mr Dunn refers to is evidence of conversations which Mr Davies allegedly had on 5 April 2002, during the police search, with four people on his telephone. Transcripts of these conversations are to be found at brief pages 57 to 51 [sic] inclusive. Mr Dunn also refers to the evidence of two police officers, Messrs Haas and Munday. They were present during the course of the search. To both officers it is said that Mr Davies stated that the police would not find anything in the search, during the search.

Mr Munday in his statement says that Mr Davies told him in effect that he had been told of the search by someone else. Mr Dunn also points to the evidence of Mr Bernard Brittain. He is one of the people to whom Mr Davies spoke during the police search. The gist of all this evidence is that Mr Davies told various people that as a result of his conversation with Mr O'Keefe [sic] the day before he became aware that police might search his property and that he had gotten rid of anything incriminating before the arrival of the police.

In other words, it is alleged by the state that Mr Davies had admitted in these conversations to acts which constituted the charged offence against him."

22 The prosecution made submissions that the statement made by Mr Davies on 5 April 2002 and by him during the search on the same day were admissible against the appellant by reason of the co-conspirator's rule and the doctrine of res gestae. Mazza DCJ rejected those submissions and they were not renewed by the respondent at this hearing.

23 His Honour then summed up by noting that the conversations of Mr Davies on 5 April 2002 were not admissible evidence against Mr O'Keeffe, but observed that the fact that the evidence was inadmissible against the appellant did not necessarily decide the application in the appellant's favour. His Honour referred to s 133(5) of the Criminal Procedure Act.

24 The appellant's submission to his Honour was that no direction could be strong enough to cure the grave prejudice which he alleged would result from the joinder. Counsel for the appellant referred his Honour to Rintel v The Queen [1986] WAR 175; Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20 and Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81, in support of his submissions. His Honour in his reasons acknowledged the reference to those cases and particularly to what was said in Bowen's case in [25] to [32] and then concluded:

"I readily acknowledge that there is a possibility of prejudice resulting from the jury hearing inadmissible evidence as against Mr O'Keefe [sic], but I am firmly of the view that the risk is nowhere near as grave as Mr Dunn suggests. In my opinion the jury will, I am sure, having been assisted by careful directions, readily appreciate that the cases against the two accused are different and separate, although there is a large body of evidence which is common and clearly admissible in both cases.

In my opinion, I am well able to guard against any possible prejudice, any likely prejudice that is caused by the joinder in this case. Accordingly, I refuse the application for severance."

"Ground 1: The learned trial judge erred in refusing the Appellant's application for a separate trial; and, in particular, his Honour erred:

• (a) in holding, in effect, that any likelihood of the Appellant being prejudiced would be able to be guarded against by a direction to the jury;
• (b) in failing to hold (i) that it was inevitable that the Appellant would be prejudiced by reason of a joint trial and (ii) that any such prejudice could not be cured by directions to the jury.

Ground 2: The learned trial judge erred in refusing the Appellant's application for a separate trial; and, in particular, his Honour erred in failing to take into account, adequately or all, relevant considerations, namely:

• (a) the extent of the prejudice in hearing a joint trial;
• (b) the emasculation of his defence as a result of a joint trial, including the resulting inability to cross-examine on gravely prejudicial evidence not admissible against him and the fetter on his giving evidence in his own defence as a result of forensic disadvantage he would suffer in so doing;
• (c) the differences in the nature and strength of the respective prosecution cases against the Appellant and the co-accused;
• (d) the fact that the particular directions that he might give in an attempt to cure the prejudice would serve also to increase that prejudice."

25 This ground and the written submissions in support are merely a further rehearsal of what was put to the primary Judge, accompanied by a submission that this Court should come to a different conclusion. That argument cannot succeed. This is an appeal against the exercise of a discretionary judgment of the primary Judge. An appellate court may only interfere with such a judgment if any of the limited grounds for review are made out. The well-established principles governing an appeal against an order made in the exercise of a discretion are as follows. First, an appellate court may not substitute its own opinion for that of the primary Judge merely because the appellate court would have exercised its discretion in a manner different from the primary Judge. Secondly, if an appeal is to succeed, then it must be shown that the Judge acted on wrong principle by failing to understand or apply the relevant law, mistaking the facts, failing to take into account relevant considerations, or, taking into account considerations which were irrelevant. If no error is shown in any of those respects, but it is a case where it is not apparent how the primary Judge reached the result embodied in the order and the order on the facts is plainly unjust or unreasonable, then the appellate court may infer that there was a failure to properly exercise the discretion: Bowen's case at [23]; Lowndes v The Queen (1999) 195 CLR 665 at [15]; House v The King (1936) 55 CLR 499.

26 However, the appellant's counsel asked that this ground be read as alleging that the decision was "manifestly" wrong, meaning that the decision was "plainly unjust or unreasonable" so that this Court should conclude that there was a failure to properly exercise the discretion.

27 The appellant argued that the case is indistinguishable from the decision in Rintel v The Queen (supra) and that that being so, that case compelled the primary Judge to allow the application. That submission must be rejected. The case is distinguishable on the facts. The facts are summarised by Steytler P in Zammit v The State of Western Australia [2007] WASCA 66 at [48]. A further summary of the facts is as follows. One accused was charged with possession of a quantity of heroin with intent to sell or supply and a second man was charged that he had attempted to obtain a quantity of the heroin with intent to sell or supply. The prosecution case was that the appellant was in possession of heroin in a hotel, but was arrested before making contact with the other man. The case against the other man was that he had been found in his car near the hotel with a large sum of money which he admitted was to be used for the purchase of heroin from a person who was to meet him there. The court found that the offences did not arise substantially out of the same or closely related acts. That is not the conclusion of the primary Judge in this case. His conclusion was that the cases had much in common. This conclusion is not challenged. Further, it is to be observed that in Zammit, Steytler P said that the reasoning in Rintel was in some respects "obscure": see [49]. Burt CJ in Rintel appeared to have based his conclusion upon the ground that the evidence relating to each charge was unlikely to be relevant to the other, Franklyn J concluded that there was no evidence admissible against both accused to connect the two offences and Wallace J agreed with both of them.

28 The appellant also submitted in written submissions that the two counts "are put by the prosecution rather in the style of a conspiracy" and that "the principles in The Queen v Darby (1982) 148 CLR 668 should be regarded as applicable such that there is no doubt that a separate trial should be ordered".

29 R v Darby (1981) 148 CLR 668 stands as authority for the proposition that the conviction of a conspirator whether tried together with an alleged co-conspirator or separately, may stand, notwithstanding that the latter is acquitted or his conviction is quashed on appeal, unless in all the circumstances the conviction is inconsistent with the acquittal of the other person. In the joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ, their Honours said that the conviction of one conspirator and the acquittal of the other, may readily be explained in terms of the obligation of the jury to consider separately the guilt of the two accused, and then went on to say (at 677):

"Nevertheless, there remains an incongruity in the direction of a trial judge which on the one hand instructs the jury that they must consider separately the guilt of each accused, taking into account only the evidence admissible against each and on the other tells them that they must either convict them both or acquit them both."

30 The reference to a direction that the Judge would tell the jury in the joint trial of conspirators that they must either convict or acquit both is a reference to the law as expressed by Lord Morris of Borth-y-Gest (Lord Reid agreeing) in Director of Public Prosecutions v Shannon [1975] AC 717 at 754 - 755. The Judges in the High Court in Darby then continued (at 677 - 678):

"But it may be worse than that. Such a direction might well result in injustice to one accused. In a case where the evidence against A is overwhelming, a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act on a reasonable doubt on the evidence admissible against B.

In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v The Queen (1979) 44 CCC (2d) 481 requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice. In cases where there is no, material distinction in the evidence admissible against both alleged conspirators, the trial judge's advice to the jury that they will either convict or acquit both accused will continue to be appropriate not because of any technical rule but because of the circumstances of the case (cf. Lord Simon of Glaisdale in Shannon [1975] AC, at p 768)"

31 Having made those observations, their Honours then said that they would "redirect" the common law in Australia and held that whether conspirators are tried jointly or separately, the conviction of one may stand notwithstanding the acquittal of the other. Nothing said in Darby took into account legislation of the kind which is in force here; however, there is no doubt that the prejudice which might be suffered where there are two accused and where the evidence against one is inadmissible against the other, has to be considered because s 133 requires consideration of the prejudice. Further, s 133(5) expressly requires the court to consider whether the likelihood of prejudice can be guarded against by a direction to the jury.

32 The observations made by the court in Darby do not require a particular result. The facts of each case have to be considered separately.

33 The appellant submits that the primary Judge failed to grasp how prejudicial the admissions made by Davies would be to the appellant. This is said to be revealed by the Judge's use of the word "possibility" or "likely" when describing prejudice. In my opinion, the use of those words do not reveal any error. Section 133(5)(a) requires the Judge to consider the risk of prejudice in the terms of "likelihood". His Honour was well aware of the law which governed the exercise of his discretion. He referred to Bowen's case and he used language consistent with the section when describing the existence of prejudice. Counsel for the appellant submitted that his Honour should have said that prejudice was certain. That submission cannot be accepted. His Honour was applying the terms of the section. He acknowledged that prejudice was possible but concluded that "any" prejudice could be overcome by proper directions.

34 Counsel for the appellant, in the course of oral submissions, asserted that the case against the appellant was weak and that tried alone, the appellant would likely be acquitted. That assertion cannot be accepted. The prosecution case is that the appellant made a clandestine telephone call from a public telephone box, warning Mr Davies not to use names and warning Mr Davies to be careful the next few days. This telephone call was made and the warning given after telephone calls had been made to the appellant by a police officer from the Midland police station where arrangements were being made to search Davies' premises the next day. That is not a weak case. A jury would be entitled to infer that the words could bear no meaning other than that the appellant was "tipping off" his friend Davies about the planned search.

35 Counsel for the appellant also attempted to persuade the court that the jury would not be able to adhere to the clear instructions in summing up and during the trial that the statements made by Davies out of court, could not be used to convict the appellant. The oral submission made by counsel cannot be accepted in view of the fact that the authorities make it plain that a properly instructed jury is to be taken as capable of distinguishing between evidence that is admissible and therefore usable against one offender, but not admissible and therefore unable to be taken into account in respect of the other. See Zammit at [65] and the authorities referred to there.

36 The appellant has not demonstrated that the primary Judge's decision was plainly unjust or unreasonable.

37 Appellant's counsel in effect, repeated the submissions made in relation to ground 1 in support of ground 2. The appellant under this ground submitted that the primary Judge failed to appreciate or take into account the "emasculation of the appellant's defence". It is submitted that the appellant "would not be able to cross-examine on the evidence of admissions either effectively or at all, since it is not admissible in his case and one must assume that Mr Davies may not give evidence, as is his right." This submission cannot be accepted. Counsel for the appellant should not want to cross-examine the witness adducing the evidence about the admissions made by Mr Davies. As indicated above, the trial Judge will direct the jury that the out of court statements by Mr Davies do not constitute evidence against the appellant. As stated above, a properly instructed jury would be capable of distinguishing between evidence admissible and usable against Mr Davies, but not admissible and therefore not useable in the case against the appellant. See Zammit at [65]. It is only in cases where the prejudice is such that it cannot be concluded that it will be overcome that a separate trial will have to be ordered. See Zammit at [65]. This is not such a case. The direction which will have to be given is not complicated and is easily understood.

38 The appellant also complains that the primary Judge made no mention of the "very significant differences" in the nature and strength of the respective prosecution cases against the appellant and the co-accused. The appellant repeated his submission that the case against him is much the weaker than the case against Mr Davies because the case against Mr Davies is supported by admissions made by him. The fact is that the strength of the cases against two accused to be tried in one trial, will often be different. It will often be the case that one accused is alleged to have made admissions and the other has not. The mere fact that there is a difference in the strength of the cases, or the mere fact that one has made admissions and the other has not, does not compel a Judge to order separate trials. It does not do so here. The case against both men is based on some evidence common to both accused. The case against Mr Davies is stronger because of his out of court admissions, some of them unguarded in conversations with acquaintances and some to the police. As already indicated, the jury will be given clear directions not to use such evidence against the appellant.

39 The final submission was that the primary Judge "paid no regard" to the fact that the giving of strong and careful directions to neutralise the likelihood of prejudice "would itself give rise to prejudice". That submission seems to be made on the basis that the warning will merely emphasise the evidence. That submission must be rejected. The implicit submission is that the jury either will not understand the direction or will disregard it. That implicit submission must be rejected. See Zammit at [65].

40 Ground 2 must be dismissed. All of the considerations referred to were taken into account by the primary Judge.

41 The conclusion is that no error has been revealed in the primary Judge's reasons for his decision. The conclusion he reached was reasonably open to him. The appellant cannot succeed just because this Court might have reached a decision different from the primary Judge.

43 MILLER AJA: I have had the opportunity of reading in draft the reasons for judgment of Pullin JA. I agree with those reasons and agree that the appeal should be dismissed.

44 LE MIERE AJA: I have had the advantage of reading in draft the reasons for judgment of Pullin JA. I agree with his Honour, that the appeal should be dismissed, for the reasons given by his Honour.