R v Cornwell

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 Howie J: On the seventh day of this trial, Wednesday 13 February, I ruled that evidence that the Crown sought to tender against the accused, Richard Bruce Cornwell, would be admitted subject to rulings to be made on specific parts of it under s 137 of the Evidence Act. I indicated that I would give further rulings and my reasons for admitting the evidence later. The following are the reasons for admitting the evidence. 2 The accused has been indicted before this Court for an offence alleging that he conspired, with a number of other persons, to import into Australia narcotic goods consisting of a quantity of cocaine being not less than the commercial quantity applicable to cocaine. The Crown case in substance comprises a number of conversations that were listened to and recorded by officers of the National Crime Authority (the NCA) under the authority of a warrant issued pursuant to the provisions of the Customs Act (Cth). I have been asked by the accused to hold that the evidence obtained as a result of the use of any listening device under the authority of the warrant is inadmissible under s 138 of the Evidence Act on the basis that the evidence was obtained in consequence of an impropriety by the investigating officers. 3 The attack upon the admissibility of the conversations relies upon what is said to be the inaccuracy of information set out in the application for the warrant authorising the use of a listening device in the accused's premises. The warrant permitted the installation and the use of a listening device in the accused's premises in Brougham Street, Woolloomooloo. The application for the warrant was made by way of an affidavit sworn by Agent Welsh, one of the investigating officers attached to the NCA. Included in the information contained in the affidavit was a reference to the surveillance of Mr Lawrence, a co-accused, on 27 February 2001, the day when the warrant was sought and issued. It was alleged that the information in the affidavit, in that respect, did not accord with observations recorded in the surveillance log for that particular day and so misled the officer who issued the warrant. It was submitted that it was improper, within the meaning of s 138 of the Evidence Act for a misstatement of fact to be made in an affidavit in support of a listening device warrant, whether that misstatement was merely negligent or was intended to mislead the issuing officer. 4 For about a month before obtaining the warrant, the NCA had been investigating a proposed importation of cocaine into Australia by Lawrence and other persons. During the course of those investigations, the NCA became interested in the accused Cornwell and his relationship with Lawrence. In January 2001 Lawrence was seen to be in the company of a person, whom the police reasonably believed was Cornwell, in Southport, Queensland. The meeting between the two, during which the person thought to be Cornwell was apparently giving instructions to Lawrence, was videotaped. A few weeks later Cornwell and Lawrence were seen to meet in a Sydney street and have a conversation together for about one minute. An intercepted telephone conversation between Lawrence's partner and Cornwell's mother on 23 February indicated that Lawrence had left the premises where he had been residing and gone to stay with Cornwell in Brougham Street. On 26 February Lawrence was seen to walk through the courtyard of the block of units in Brougham Street in which Cornwell lived and enter his motor vehicle, which was parked nearby. 5 Surveillance records for 27 February 2001 indicate that at 6:30am Lawrence's vehicle was parked unattended in McElhone Street, Woolloomooloo at the rear of the Brougham Street units. At 7.55am Cornwell drove his vehicle away from the car park of the premises and travelled towards William Street, Woolloomooloo. At 8.49am Lawrence's vehicle, in which he was the sole occupant, was seen to drive from its parking spot in McElhone Street to Botany. 6 During the investigation of Lawrence, the NCA maintained a computerised record of material relevant to the investigation. The record included case notes entered by investigating officers and reports made by analysts employed by the NCA. The following is part of the case note prepared in respect of the movements of the accused and Lawrence on the 27 February:

About 7am on 27/02/01 Jack Lawrence's vehicle RX1979 was located by NCA surveillance parked in McElhone Street outside Bruce Snapper Cornwell's apartment block at 9/79-85 Brougham Street, Woolloomooloo. About 7.56am Cornwell was observed to depart those units.

About 8.50am Lawrence was observed to depart the above unit block and drive vehicle RX1979 to the vicinity of 3 Wilson Street, Botany where he remained for approximately 20-25 minutes………………… 7 The second paragraph of that note asserts that Lawrence was observed to depart the unit block in Brougham Street, whereas the surveillance log does not refer to any such observation. It was never ascertained in the evidence before me who it was that recorded that case note or on what material it was based. 8 On the afternoon of 27 February the application was made by affidavit for a listening device warrant for Cornwell's premises in Brougham Street. The affidavit referred to the observations of Lawrence and the accused that morning in McElhone Street as follows:

On the morning of 27 February 2001 about 7am NCA surveillance observed vehicle RX1979 parked in McElhone Street, the laneway beside 79 Brougham Street, Woolloomooloo. About 7.56am Cornwell was observed to depart the premises. About 8.50am Lawrence was observed walking away from the unit block 79-85 Brougham Street. Lawrence walked along the footpath, entered his vehicle which was parked in McElhone Street, and then drove to the Botany area. 9 This account of what was observed of Lawrence's movements on the morning of 27 February contains an allegation that he was seen walking away from the unit block and along the footpath before entering his vehicle. There is, of course, no reference to those observations in the surveillance log. 10 The authorised officer who issued the warrant stated, in relation to the accused's premises in Brougham Street, that he was satisfied, by information on oath, that:

(a) there are reasonable grounds for suspecting that the premises [ ] are likely to be used in connection with the commission of narcotics offences……..; and

(b) use by officials of the National Crime Authority….of….a listening device to listen to or record words spoken by or to the persons in those premises, will, or is likely to, assist such officials in, or in connection with, inquiries that are being made in relation to the use, or likely use, of those premises in connection with the commission of such a narcotics offence. 11 On behalf of the accused Cornwell it has been submitted that the affidavit in support of the warrant in respect of the Brougham Street premises misstated the facts in relation to the movements of Mr Lawrence on the morning of 27 February and this misstatement engaged s 138 of the Evidence Act. It is further submitted that I should reject the tender by the Crown of any material resulting from the use of a listening device or devices in the accused's premises in Brougham Street because that material was obtained as a consequence of an impropriety with the terms of that section. 12 Section 138 of the Evidence Act is relevantly as follows:

(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2)………

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 13 Mr Temby QC, who appears on behalf of the Australian Crime Commission (as the NCA is now known), has submitted that it has not been shown that there was any misstatement made in the affidavit about the observations made of Mr Lawrence on the morning of 27 February. He points out that, although Agent Welsh gave evidence before me on this very matter, she was never asked whether what was contained in the affidavit, which she prepared, misstated the material available to the NCA at the time the affidavit was prepared. Both Agent Welsh and Agent McMahon, who was the officer in charge of the investigation and assisted in the preparation of the affidavit, gave evidence that they obtained their information, not only from the surveillance logs, but also from conversations with, or reports from, the officers who carried out the surveillance. Neither officers Welsh or McMahon were asked any question about who was responsible for the case note in respect of the observations of 27 February or whether that case note accurately reflected information in the possession of the NCA at the time the note was made. 14 The Crown Prosecutor also submitted that in the circumstances of this particular case and in light of the evidence, or the lack of it, concerning the insertion of the impugned statement in the affidavit, it could not reasonably be concluded that there was either a misstatement or, if there were, that it amounted to an impropriety for the purposes of the section. 15 I reject the submission that I cannot conclude that the statement in the affidavit misrepresented the actual observations made of Lawrence on the morning of 27 February. I am prepared to infer, at least on the balance of probabilities, that any observations of Lawrence on that morning would have been recorded in the surveillance log, at least where that observation related to Lawrence's connection with the Brougham Street premises. I am satisfied on the balance of probabilities that both the case note and the statement in the affidavit are inaccurate in that Lawrence was not actually observed to leave those premises that morning. The question then arises as to whether that misstatement was an impropriety for the purposes of s 138 of the Evidence Act. 16 During the course of argument there was some discussion between counsel and myself as to the meaning of the word "impropriety" for the purposes of s 138. During the course of his submissions, Mr Boulten, who appears for the accused Cornwell, referred me to cases where individual judges have considered whether particular conduct amounted to an impropriety for the purposes of the section or otherwise. In my view such cases are of very limited, if any, assistance. They are merely factual determinations made about particular conduct in particular circumstances. It is clear that conduct that may be characterised as improper in one set of circumstances may not be so considered in another set of circumstances notwithstanding that the conduct under consideration is substantially the same. 17 I respectfully agree with the view, expressed by Smart AJ in DPP v Carr [2002] NSWSC 194 at [27] that there is little purpose in attempting to define the terms "improperly" or "impropriety". However, I cannot embrace all of his Honour's remarks about the scope of the section. Smart AJ went on to hold that s 138(2) and s 139 of the Act

"indicate that the word 'improperly' and the phrase 'in consequence of an impropriety' should not be narrowly construed" 18 Subsection s 138(2) and s 139 are in effect deeming provisions which provide that certain types of evidence shall be taken to have been obtained improperly or as a consequence of an impropriety where that evidence is obtained in particular, specified, factual situations. The first provision relates to admissions or evidence obtained as a consequence of an admission, made in the course of questioning where the questioner has acted in the manner set out in the subsection. Section 139 relates to evidence obtained in circumstances where there has been a failure of the police to caution a person during the course of official questioning. These are provisions that require a court to find that s 138(1) applies notwithstanding that the court might not have considered that, on the particular facts and circumstances before it, the evidence was improperly obtained or obtained as a result of an impropriety. In effect those sections extend the ambit of s 138(1) to evidence that might not otherwise have fallen within the scope of the section. 19 With respect to Smart AJ, I do not see that the existence of those two provisions indicates that the words of the section should be construed in any particular manner. Rather, it seems to me that the fact that the legislature thought it necessary to enact those particular provisions tends to suggest that there was a concern that the normal meaning to be attributed to the words of the section, when applied to the kind of facts and circumstances with which those two provisions are concerned, may not have resulted in the court finding that the evidence was obtained improperly or as a consequence of an impropriety. It appears to me to be significant that the provisions are concerned with evidence obtained as a result of official questioning. 20 I am of the view that, otherwise than when subs 138(2) or s 139 apply, the court should determine whether the section is engaged having regard to the particular facts and circumstances before it but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding. Not every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects, inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect. On the other hand the terms of subs 138(3)(e), which subsection requires the court to take into account whether the "impropriety or contravention was deliberate or reckless", make it clear that the conduct need not necessarily be wilful or committed in bad faith or as an abuse of power. 21 I am prepared to accept for present purposes that any misstatement of fact in an affidavit in support of a warrant for the use of a listening device on private premises may be an impropriety within s 138, notwithstanding that the misstatement was not intended by the person preparing the affidavit to influence the officer who was to act upon that material in determining whether to issue the warrant. I accept the submission made by Mr Boulten that a person preparing an affidavit for the purposes of obtaining a warrant for the use of a listening device in a private home must be scrupulous to ensure that the contents of the affidavit fully and accurately set out the factual material relevant to the determination whether the warrant should be issued. The question of whether the misstatement was intentional, reckless, or inadvertent and the motive, if any, for the misstatement will be matters which are relevant to the gravity of the impropriety and the exercise of discretion to permit the Crown to lead the evidence notwithstanding that it was obtained improperly or as a consequence of an impropriety. 22 Mr Boulten has stressed that, in determining whether the misstatement amounted to an impropriety in the present case, it should be borne in mind that the warrant was in respect of the Brougham Street premises and it was based upon a belief that Lawrence had a connection with them because he was staying there at the relevant time. The subject of the investigation at the stage the warrant was sought was Lawrence, not Cornwell. The misstatement concerned the possible connection between Lawrence and Cornwell's premises in Brougham Street, that connection being the only possible basis for a warrant being issued in respect of those premises. The misstatement, so it was argued, had the effect of over-stating the evidence supporting the connection between the premises and Lawrence and, thereby, bolstering the NCA's case for the issuing of the warrant. 23 In the present case the misstatement has to be seen in the light of the accuracy or otherwise of the affidavit as a whole. There is no evidence that there was any other material inaccuracy or misstatement in the affidavit. Rather the evidence is that despite a significant misstatement as to the number of times Cornwell and Lawrence had met over a three day period which was contained in the case notes, the affidavit reflected the true situation. Further, although the misstatement was in respect of the possible connection between Lawrence and Cornwell's premises, this was not the only material in the affidavit to support such a connection. There was the telephone call indicating a belief on the part of Lawrence's partner that he was living in those premises, there was the presence of his vehicle in the street behind those premises on the mornings of both 26 and 27 February, and, perhaps more importantly, there was the sighting of Lawrence in the courtyard of those premises on 26 February. This material had to be viewed in the context of recent sightings of Lawrence in company with Cornwell. There was ample information in the affidavit that would lead to the inference that, when Lawrence entered his motor vehicle on the morning of 27 February, he did so having left the block of units in Brougham Street. 24 In those circumstances and in the absence of any investigation before me as to the source of the material in the case note, or the circumstances in which the alleged misstatement was placed into the affidavit, or any suggestion made to Agent Welsh that she acted improperly in respect of the material placed in the affidavit, I am unpersuaded that any impropriety occurred in relation to the making of the affidavit or its use to support the application for the warrant. The only reasonable inference to draw is that, if the relevant passage in the affidavit were a misstatement, it was an inadvertent one made by an officer who had otherwise taken care to ensure the accuracy of information in the affidavit and had, apparently, been misled by the case note. Such conduct could not alone, in my view, be reasonably regarded as improper notwithstanding the significance of swearing an affidavit in support of a listening device warrant. 25 But even if I were wrong in that finding, I am completely unpersuaded that the impropriety resulted in the issuing of the warrant and thus the obtaining of the conversations to which objection is taken. The accused must satisfy the court that there is a causal connection between the impropriety and the obtaining of the impugned evidence; R v Dalley [2002] NSWCCA 284. If the court cannot be satisfied of that matter, the section has no application. I appreciate that the connection between the improper conduct and the obtaining of the evidence may be indirect. I accept that there could be a sufficient connection found between a misstatement in an affidavit in support of a warrant and the evidence obtained as a result of the issuing of the warrant so as to engage the section. 26 But in this case, there was ample information contained in the affidavit to support the issuing of the warrant, if the misstatement were to be disregarded. I do not intend to repeat that material. Further, there was ample material upon which it could be inferred that Lawrence did leave from the premises on 27 February even though he may not have been observed to do so. I would comfortably reach the conclusion, if it were required, that, having regard only to the balance of the material in the affidavit relating to the connection between Lawrence and the premises, that it would have been unreasonable for the officer to have refused the application. It should be noted that it was unnecessary that the issuing officer reach any concluded or positive view about whether a connection between Lawrence and the accused's premises actually existed. It was enough if he were satisfied that there were reasonable grounds for suspecting that the premises were likely to be used in connection with the commission of a relevant offence. 27 It is unnecessary that I proceed to consider the residual discretion to admit evidence notwithstanding that it was improperly obtained, because the accused has failed to satisfy me that, even if there were an impropriety, the evidence was obtained as a consequence of it. I would note, however, that in all the circumstances of this matter, if it were necessary to consider the exercise of that discretion, there could only be one result: the discretion would be exercised in favour of its admission. It should be clear by now that I would be of the view that the misstatement was not reckless or intentional and that, in the circumstances of this particular case, any impropriety was of a relatively minor nature. The conversations, considered as a whole, are highly probative of the allegations made by the Crown as to the existence of the charged conspiracy and the accused's participation in it. They are of fundamental importance to the Crown's case against the accused. The charge is clearly a most serious one. No other consideration, either referred to in s 138(3) or otherwise, would have led me to conclude that the evidence should not be admitted. The balance would have been overwhelmingly in favour of the Crown. 28 However, there has been objection taken to the whole of some of the conversations recorded as a result of the use of the listening device installed in the accused's premises in Brougham Street and parts of others on the basis that the conversations contain material which is either irrelevant or unfairly prejudicial within the meaning of s 137 of the Evidence Act. At this stage I have not heard the tapes played and the submissions were made on the basis of transcripts of the conversations. It should be noted that the conversations recorded between April and March 2001 contain the whole of the material upon which the Crown relies to prove the participation of the accused in the alleged conspiracy. 29 As is so often the case, not every part of each conversation is intelligible and a jury would have difficulty at times understanding what the participants are talking about. There are in most, if not all conversations, words spoken that have not been transcribed because the person responsible for the transcript could not understand them. As I understand it, much of the recording is difficult to hear or understand and the transcripts to be used in the trial have been prepared by a person who has listened to the tapes repeatedly and used other techniques to enhance his capacity to understand what is said. But simply because some part of a conversation is unintelligible, it does not necessarily follow that the conversation, or that part of it, should be rejected. It is for the jury ultimately to ascribe a meaning and import, if they can, to the conversation played to them. Nor is it simply the transcribed words, considered without hearing the taped conversation, that are important in an understanding of what is being said and what might be inferred from what is gleaned of the conversation. 30 There seems to me to be a substantial risk that unnecessary editing of a recorded conversation might inhibit the jury in understanding what is being said and the importance of the words spoken either to the Crown case or the defence. The words of the conversation as a whole are part of the circumstances surrounding the relevant part of it and give context to that part upon which one or other of the parties rely. It seems to me that as a general rule, if a conversation or some part of it, is relevant to an issue before the jury, the whole of the conversation should be admitted unless it, or some part of it, is unfairly prejudicial; s 137 of the Evidence Act or the playing of the whole conversation would result in unnecessary waste of time or might confuse or mislead the jury: s 135. But simply because some part of the conversation may not be understood by the listener or might not appear to be relevant to the issues raised in the trial, it should not necessarily be excised from the recording and the transcript. Its relevance is found simply in the fact that it is part of the conversation being played to the jury. 31 In the present case defence counsel sought to have excluded from the conversations tendered anything that could not be shown to be relevant to the Crown case. In other words, the submission was that, unless some particular part of the conversation could be shown to relate to the conspiracy alleged, it should be edited from the conversation. I do not believe that is a proper approach. The jury are entitled to have the relevant part of the conversation placed within the context of what else is said at the time. Unless there is a real risk that the jury may use part of the conversation for a purpose for which it is not before them or may be deflected from the relevance of the particular part of the conversation by other material in it, there is no reason to exclude any of the conversation simply because it may not appear to have any real relevance or value if taken by itself. The court should not too readily assume that a jury would understand the relevant material in the conversation and appreciate its significance to the issues before them, even though surrounding parts of the conversation, which appear to have no bearing on the matter, are excluded. The jury are entitled to have the relevant material placed in the context of the conversation as a whole. The simple fact that the conversation appears to have been edited may itself be enough to raise uncertainty in the mind of the jury as to the weight they should place on the material in evidence before them. Unless it is really necessary to sanitise the conversation by removing unfairly prejudicial material from it, the conversation should be played to the jury in its entirety. 32 Simply because parts of a conversation are indistinct or because not all the words spoken could be transcribed, or because the particular context of the utterances is not clear, it does not follow that the conversation should be rejected as evidence or that the unintelligible parts of the conversation must be excised out of it. Unless it can be said that the non-transcribed parts or the unintelligible parts of the conversation could work unfairly against the accused in the jury's assessment of that part of the conversation upon which the Crown relies, the whole of the conversation should be played to the jury and the accompanying transcript admitted into evidence. In R v Dellapatrona and Duffield (1993) 31 NSWLR 123 at 132 this Court stated:

Thirdly, it was said that the transcripts were inadmissible. It was not easy at the hearing of the appeal to obtain a satisfactory submission as to why that should be so. It was suggested that it was because the tapes were of extremely poor quality. However, it is the very need for a tape which is indistinct to be played over repeatedly in order to discover what was said which makes a transcript of it admissible, as a means of assisting the jury in the perception and understanding of the evidence tendered by the playing of the tape: Butera v DPP (at 187-188).

Then it was suggested that it was unfair to Dellapatrona to allow the jury to have access to the transcripts because there were many places on the tapes where nothing distinct could be heard, even by being played over repeatedly. If it were being suggested that those parts of the tape which were distinct (upon either a first hearing or repeated hearings) gave such an incomplete account of the conversation being recorded as to make that account an unfairly distorted one, there may perhaps have been available an argument that the tape should have been rejected upon discretionary grounds, but that would not affect the admissibility of the transcript once the tape was in evidence. No such suggestion was in fact made. Indeed, it could not validly have been made, as those parts of the tapes which were distinct (in the sense to which we have referred) contained in general obviously self-contained extracts which were highly incriminating. As most of the participants in the conversations recorded were either called as witnesses (the Greens) or able to give their own version (Dellapatrona), there was no unfairness in the tender of the tapes. 33 Where the conversation recorded is difficult to understand because it is inaudible or unintelligible in part, expert evidence can be called in respect of a transcript of the conversation prepared and tendered by the Crown as an aid to the jury in understanding what is recorded on the tape of the conversation played in court. In Butera v DPP (Vic), above, in the joint judgment of Mason CJ, Brennan J and Deane J at 186 the following is stated (footnotes not reproduced):

The basis on which a transcript may be provided to the jury was stated by Cooke J, speaking for the majority in Reg. v Menzies. Noting that Phipson said that the relaxing of the rules of evidence tended "to effect economy, convenience and dispatch", his Honour said: "The problem is how best to enable a jury to assess the contents of a tape, in the light of those aims. It is a problem sui generis and not automatically answered by settled principles. If the tape is reasonably short and clearly audible there can normally be no justification for allowing a transcript as well as playing the tape. But there will be cases in which the aid of an expert is reasonably necessary. For example, there may be the use of a foreign language. Or deficiencies in the recording may make it necessary to play tapes more than once to enable a better understanding, yet the sheer length of the tapes may mean that inordinate time would be taken by replaying them to the jury. In such cases, while there should normally be at least one playing to the jury, the evidence of an expert should be admissible as an aid to the jury. He may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc. And we see no compelling reason why his evidence should not take the form of production of a transcript which can be admitted as an exhibit. Whether the Judge allows the jury to have copies of the transcript, as distinct from merely hearing it read, must be a matter for his discretion in the particular case, bearing in mind the requirements of justice and any risk of unfairness to the accused."

The jury should be instructed that the purpose of admitting a transcript is not to provide independent evidence of the conversation but so as to aid them in understanding what conversation is recorded on the tape, and that they cannot use the transcript as a substitute for the tape if they are not satisfied that the transcript correctly sets out what they heard on the tape. In Hopes v Her Majesty's Advocate, the evidence (set out in a transcript) of a person who listened to an indistinct tape played over out of court was held to be "very doubtfully competent" on the ground that it was primary evidence by an ad hoc expert of the tape's content. With respect, it seems better to acknowledge that such a transcript is merely an aid to the jury's understanding of the evidence derived from playing over the tape in court 34 Further s 48(1) of the Evidence Act would appear to make the transcript of a recorded conversation admissible as evidence of the contents of the recording. The section is relevantly as follows:

48 (1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods: (a)….., (b) , (c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing) - tendering a document that is or purports to be a transcript of the words,

The Act defines a document to include "anything from which sounds, images or writings can be reproduced with or without the aid of anything else". The definition clearly includes a tape recording. 35 In the present case, as I understand what is intended, an expert will give evidence as to the preparation of the transcripts from the tapes. The Crown has made a concession that, unless a particular word is audible on the tape it will not be reflected in the transcript and the jury cannot, therefore, take into account what the expert might have heard on the tape unless the jury can also hear it. The trial will, of course, proceed on the basis of that concession, although I should not be taken to accept that it necessarily represents the law. 36 The most controversial parts of the recorded conversations, which the Crown wishes to tender against the accused, are those from which a jury might infer that the accused is of bad character either in a general sense, in that he has been involved generally in criminal conduct in the past, or in a specific sense, in that he is involved in trafficking in drugs at the time the conversations take place. In particular, the first conversation in which the accused is involved raises the suggestion that he has been under investigation by the police at a time prior to the commission of the offence before the jury and has the wherewithal to obtain police intelligence. 37 While conceding that the conversations are generally relevant to prove the relationship between the accused and persons who are alleged to be co-conspirators, Mr Boulten argues that parts of them are unfairly prejudicial having regard to the probative value of the evidence to the Crown's case in light of the prejudicial effect of the jury knowing of the accused's involvement in criminal activities. In relation to one conversation, which appears to occur in the course of Cornwell and Lawrence operating a business in trafficking in drugs, the submission is that the evidence is tendency evidence within the meaning of s 97 of the Evidence Act and should be excluded as having insufficient probative value. 38 Simply because otherwise admissible evidence reveals that an accused is generally or specifically of bad character, or that he may have committed uncharged offences, it does not follow that there is any basis for rejecting it. Provided that the evidence is relevant for some purpose other than to raise the accused's character or suggest that he has a propensity to commit crimes, either generally or of a specific nature, the evidence is prima facie admissible and is not subject to the tendency rule contained in s 97 of the Evidence Act; R v Quach [2002] NSWCCA 519, applying Harriman v The Queen (1989) 167 CLR 590. The evidence may be admitted notwithstanding its prejudicial effect because it is necessary to give context or background to the other evidence placed before the jury, because it is relevant to show the relationship between relevant persons, such as alleged co-offenders or the accused and the victim, or because it is part of the fact and circumstances surrounding the commission of the offence charged. But these are merely examples of situations in which evidence suggesting the bad character of an accused, may be relevant for a specific purpose other than as a basis for propensity reasoning: R v Quach, above per Spigelman CJ at [8]. 39 The present charge is one of a conspiracy alleged to have occurred over a period of about four months. Clearly in such a case the conduct of persons alleged to be participants in that conspiracy over that period of time will generally be relevant to disclose their relationship with one another, and to place the conduct alleged against them as being in furtherance of the conspiracy in the context of what else they may have been doing over the relevant period. Evidence probative of those matters which also discloses that a particular accused has committed uncharged criminal acts or is otherwise of bad character will not be excluded on that account alone. 40 In R v Quach, above, the Chief Justice analysed the judgments in Harriman v The Queen when considering whether telephone conversations between the appellant and another person which disclosed that the appellant had been dealing in heroin were admissible on a charge of supplying heroin on a particular date after the telephone calls had been made. On the basis of that analysis and after considering the provisions of the Evidence Act the Chief Justice concluded that the evidence was properly before the jury. I do not intend to repeat the analysis or to quote from passages in Harriman that are set out in the judgment in Quach. But it seems to me that in some respects the present is a stronger case than Harriman for the admission of evidence of other criminal activity involving drugs between Lawrence and Cornwell. In the present case the activity was occurring at the very time that the Crown alleges that these two accused were participants in a conspiracy to import a substantial amount of cocaine. The fact that conversations occurring during the alleged conspiracy by alleged participants in it, that is Cornwell, Lawrence and Diez, tend to reveal that at the time they were involved in the business of supplying drugs is in my view highly probative evidence of their participation in that conspiracy. 41 The relevance of that evidence does not depend upon tendency or propensity reasoning. It not only shows the nature of their relationship between the persons involved in the conversations, a matter highly relevant in proof of a charge of conspiracy, but it also discloses the facts and circumstances surrounding the conduct upon which the Crown relies to prove the charge. The relevance of the evidence is found not simply in the fact that the conversations may disclose that these persons are supplying drugs at the relevant time, but arises from the fact, if it be found by the jury, that they are conducting a business in drug trafficking involving not insubstantial amounts of money. As prejudicial as that fact might be to the persons involved in those conversations, I fail to see how it is not highly relevant to whether such persons were, at the time of the activity, participants in a conspiracy to import a commercial quantity of cocaine. The evidence is part of the facts and circumstances surrounding the commission of the offence alleged against the accused. It is as relevant to the present allegation as would be the fact that, on a charge of receiving stolen videos, the accused operated a video store. The difference is found only in a consideration of the prejudice that might flow from the admission of evidence of the nature of the business being conducted by the present accused. The evidence does not merely supply context or background to the specific allegations made by the Crown, although it does that, but it shows motive for the accused to participate in the conspiracy alleged against them. In my view evidence proving that at the time of the conspiracy alleged the accused, Lawrence and Diez were involved in the business of trafficking in drugs, be it cocaine or otherwise, is part of the facts and circumstances supporting the charge in the indictment. 42 In Harriman McHugh J stated at 633:

If evidence which discloses other criminal conduct is characterized as part of the transaction which embraces the crime charged, it is not subject to any further condition of admissibility. Evidence which directly relates to the facts in issue is so fundamental to the proceedings that its admissibility as a matter of law cannot depend upon a condition that its probative force transcends its prejudicial effect. No doubt in a criminal trial a judge always has a general discretion to exclude prejudicial evidence. But it is difficult to see how evidence directly related to the very facts in issue can be excluded simply because it reveals other criminal conduct on the part of the accused.………. 43 Brennan J stated at 595 of Harriman:

……….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 would therefore respectfully agree with McHugh J that evidence of events which are part of the res gestae is admissible - and will usually be admitted - even if that evidence reveals the commission of an offence other than the offence charged." 44 In my view, although the term "res gestae" appears to have fallen out of fashion after the introduction of the Evidence Act, the evidence of the accused Cornwell being in the business of supplying drugs with two of his alleged co-conspirators at the time the conspiracy alleged was on foot falls into that class of evidence to which their Honours were referring in those two passages. But even if did not, the evidence is of such probative value as circumstantial evidence tending to prove their participation in the conspiracy that it ought to be admitted notwithstanding it's prejudicial effect. 45 In respect of the relevance of a person's involvement in the heroin trade on one occasion, to a charge of supplying that drug on some other occasion, Brennan J stated at 596

………………..A person who is shown to have participated to a substantial degree in that trade - I am not speaking of mere use or of an isolated sale - is likely to have incentives to continue his participation in the trade and, because of the nature of the trade, is more likely to have done so than one who has not been a substantial participant. Evidence of substantial participation in the heroin trade can support an inference of continued participation although, of course, each case depends on its own facts. In determining whether or not evidence of participation can support such an inference regard must be had to the extent and duration of past participation, the proximity in time between the past participation and the offence charged and the whole of the circumstances of the case. 46 In my view the nature of the accused's involvement in the trade of supplying drugs was so substantial and so proximate to the activity, which is the subject of the charge, that it supports an inference of his involvement in the conspiracy simply as a matter of common sense and experience. A person involved in the drug trade has to obtain his supplies from somewhere. When that trade is as substantial as appears to be that in which the accused was involved, it is well open to the jury to find that the accused would be a participant in a conspiracy to obtain a substantial amount of drug for the purpose of carrying out the trade in which he was involved. The prejudicial effect of the evidence in raising his bad character or the risk of the jury engaging in propensity reasoning from that evidence is clearly, in my view, outweighed by the very substantial probative value of that evidence.

Conversation 1 - 9 March 2001 47 The first conversation recorded was between the accused and Diez, and occurred on 9 March 2001. It is conceded by Mr Boulten that a jury could infer from the contents of the conversation that the accused was endeavouring to persuade Diez that Lawrence was a person who could be entrusted with the responsibility of collecting the drug, which was about to be brought from South America and which is the subject of the conspiracy alleged. According to the Crown case, at this point in time an associate of Diez in Panama had purchased a boat, The Flaning, which was to be used to convey the drugs to Australia. The Crown submits that the conversation is highly probative because it is evidence that, not only proves the participation of the accused in the conspiracy, but also his role in it. The Crown submits that it is relevant to the relationship that then existed between the accused and Diez, on the one hand, and the accused and Lawrence, on the other. 48 In order to impress upon Diez that Lawrence is reliable, Cornwell shows him a document which he says is an "investigation plan" or an "operation plan" that was obtained from a police officer. The circumstances in which the plan was obtained are not altogether clear, but they involved the officer being at a nightclub where a person, who Cornwell describes as "my bloke", physically assaulted him and stole his property, including a badge, gun, and hand-cuffs. According to what Cornwell tells Diez, the document relates to June the year before and came into Cornwell's possession in October. Cornwell apparently shows the document to Diez and indicates a person referred to in it as "my Josie". The Crown asserts that there is evidence that can prove that this is a reference to Lawrence. Cornwell tells Diez that Josie "is a boss mate, he doesn't do the work…He is the boss of the work". He tells Diez that "he would fucking do anything for me" and that he is "a real man mate". 49 There is clearly material within the conversation that is not only highly relevant to the case to be presented by the Crown but is also otherwise prejudicial to the accused Cornwell, Lawrence and to a lesser extent Diez. The circumstances surrounding the obtaining of the document and its contents (insofar as they can be ascertained from the conversation) raise a suggestion that both Cornwell and Lawrence are generally of bad character and had been under investigation, with others, for unspecified criminal activity. It is the sort of material that should be excluded unless to do so would deprive the jury of the basis for understanding and appreciating the significance of the material in the conversation that ought to be placed before them. 50 In an appropriate case it may be that material of this nature is so unfairly prejudicial that the whole of the conversation should be excluded notwithstanding its importance to the Crown case. I have given anxious consideration as to whether I should exclude the evidence of this conversation or attempt to sanitize it of the offending material without depriving the jury of an understanding of the relevance of the conversation, but I have reached the view, after considering all of the conversations to be tendered against Cornwell, that I should not reject the conversation or any part of it. 51 The evidence is highly probative of the relationship between Cornwell and Diez, and Cornwell and Lawrence. Although it does not itself touch upon the conspiracy alleged in the indictment, it is relevant and highly significant as part of the Crown's case to show the nature of the relationship of persons who, the Crown alleges, are the three major participants in the conspiracy at the time it is on foot. I note that the evidence involving Cornwell is made up almost exclusively of eight conversations that took place over a very short period of time. It is important, the Crown says, for the jury to understand why Cornwell does not appear to be actively engaged in the conspiracy apart from these conversations, and that, so the Crown submits, is because of his standing and role in the organisation behind the conspiracy. In effect the Crown case is that Cornwell was the head of the Australian arm of the conspiracy and responsible for the retrieval of the drug from The Flaning and its subsequent distribution. On the Crown case, Cornwell fulfilled his role by operating through Lawrence. The Crown submits that it is essential for the jury to understand from the limited evidence available against Cornwell his relationship with Diez that is disclosed, in part, by this conversation. 52 Mr Boulten has submitted that, at the very least, the conversation should be edited so that the jury do not understand the nature of the document being shown to Diez or its provenance. But after carefully considering the contents of the conversation and the submissions made by the parties in respect of it, I believe that the conversation should be admitted as it is, subject to a particular objection as to a reference by Cornwell as to his acquittal of a matter in 1995 and the ability of Lawrence to obtain "chips" for mobile phones. I believe that the nature of the document shown by Cornwell is critical to the jury understanding the conversation and appreciating its significance. In my view the nature of the document is inextricably bound up with the subject matter of the conversation. If the conversation were edited in an attempt to conceal the nature of the document, it would, in my view, be almost unintelligible and the jury might simply not be prepared to act upon it in the way in which the Crown will legitimately ask them to do. 53 The importance of the nature of the document runs throughout the conversation. Cornwell tells Diez that the reason he brought him to his premises that evening was to the see the document, which he had there with him for that purpose. He uses the document to demonstrate, not only that Lawrence can be trusted, but also that he, Cornwell, has the resources to find out information in the hands of the investigating agencies: he has people available who can find out what is happening. This is the significance of the fact that Cornwell tells Diez that he has a list of the names of informants working in Sydney. Cornwell is attempting to ensure that Diez understands that he can rely upon both him and Lawrence to ensure that the venture is not discovered. 54 I do not intend, at this stage, to allow the Crown to lead evidence as to the ability of Lawrence to obtain chips for mobile telephones. It seems to me to be at the very margin of the Crown's case against Cornwell and Diez. It may not, in the light of other evidence that I intend to admit, have very great prejudicial effect, but on the material presently before me it has little probative value. I have indicated that I am prepared to revisit evidentiary rulings as the trial progresses if needs be.

Conversation 3 - 24 March 2001 55 On 24 March there is a third conversation between Cornwell and Diez. The admissibility of this material is highly contentious. To place it in context I shall briefly mention the second conversation, which occurred on 13 March. That conversation relates in substance to two matters: the fact that Diez is awaiting a call from America and arrangements between Cornwell and Diez to permit them to communicate with one another without speaking on Cornwell's telephone. Cornwell tells Diez that he is frightened of having his voice on his phone. The conversation concludes with Diez asking if he can contact Josie (Lawrence) with a view to meeting him. 56 The third conversation, or a significant part of it, appears to relate to concerns held by Diez that Cornwell is not able to distribute drugs, which have been brought into the country by those whom Diez represents, quickly enough. Cornwell explains, "Its everywhere mate". There are discussions about whether Diez should get someone else "to move the other half", but Cornwell tells him, "They won't move it any different to us". Diez is concerned that people are putting pressure on him, but Cornwell says, "It wont go any quicker than what its going". Diez states that he knows someone who can move "twenty in one day", but Cornwell treats the suggestion with contempt; "Well fucking bullshit". 57 In this context, Diez asks Cornwell, "Now tell me how you gonna justify…when the big one is coming here buddy what are we going to do with that the big one?" The jury could clearly infer from the conversation leading up to the question, that this is a reference to the potential importation that is the subject of the charge. Cornwell explains, "The only reason this is going slow mate is cause its every fuckin' where". He says to Diez, "What do you want to do? You want to lie down and cry about it or something?" Diez complains, "I dealing with very, very, very heavy people there… my family…there…putting pressure me". Cornwell tells him, "Well then, everything will go along smoothly and it'll all get done. I can't go out there and fucking start snorting it". The jury might well infer that the subject of the conversation is cocaine. 58 There is further discussion including references to the imminent arrival of "the Dutchman" who was "just about to get here" and "the one hundred and twenty one". The jury could infer that this part of the conversation related to the importation of 120 kilograms of cocaine that is the subject matter of the charge on the indictment. One alleged co-conspirator, a witness at the trial, is named Wouter van Bommel. It is the Crown case that he came to Australia in advance of the arrival of the drug. Diez continues to voice his concerns about the venture and Cornwell berates him saying, "You're carrying on like a fucking pussy". Diez complains that, "I wish they can turn around and go back home believe me, that's what I want now". Cornwell responds, "Well your talking shit now". Diez indicates that he wants to talk to "Josie" and toward the end of the conversation says to Cornwell, "We have to sell it….man. They need their money for our work here." 59 Clearly the material in this conversation is highly probative to the Crown's case. It is important to establish the relationship between Diez and Cornwell and their knowledge and interest in the pending importation. Some of that conversation the Crown will use to identify that Lawrence and Cornwell are speaking about Diez in later conversations. For example Cornwell later refers to a person as "a pussy" when speaking to Lawrence. Again there is material in the conversation that tends to suggest other on-going criminal activity between Cornwell and Diez in the supply of drugs, possibly cocaine. But the jury could have no understanding of the balance of the conversation that suggests their knowledge and interest in the expected arrival of the drug, which is the subject of the charge, without the context supplied by the prejudicial material. In any event, I have already expressed the view that evidence of drug dealings between Cornwell, Diez and Lawrence current at the time of the alleged conspiracy is admissible in its own right.

Conversation 4 - 4 April 2001 60 On 4 April there is a conversation between Cornwell and Lawrence that appears to relate to their substantial involvement in the distribution of drugs for profit. The conversation is not clearly transcribed and there are many places where a word or words have been omitted because they were unintelligible or inaudible. But considering the contents of the conversation as whole, it leads to a clear inference that the two accused were running a business in the distribution of drugs. Even if, when viewing the conversation in isolation, there were some doubt about the nature of the business in which the accused were involved, the jury could clearly draw such an inference when other conversations are considered. 61 The conversation includes a complaint by Cornwell that someone is "pinching our customers", and him telling some person to "go and establish a market and establish…in the cross". He complains to Lawrence that "this market is nowhere near as big as every cunt thinks it is" and Lawrence later says, "Its out, its just no one's buying". The conversation relates to sums of money in the thousands of dollars and what people have and do not have in terms of "blocks" and who will be given what. At one stage Cornwell tells Lawrence, "Don't get confused bars with a block. A block is two kilos". 62 At one stage in the conversation Cornwell complains:

The night before…..and he said how do you know that….I said I had to fucking go and ring the cunt now and tell him you want them back …and you fucking giving me twenty thousand (wds) and you nearly got us pinched so (wds)…. don't get nothing…now fucking give him a ring.. he's selling it undercutting us…..I said they are creating a market here for when it comes. I said right what are you going to do with it, give it away for nothing". 63 In my view the conversation is probative of the fact that Cornwell and Lawrence were involved in the drug trade and the extent of their involvement. It indicates that they are not merely street dealers but that they have a network operating in which they can determine who gets what drug and when. It is clearly open to the jury to infer the business involves many thousands of dollars in takings. Whether or not the discussion involves cocaine does not seem to me to be decisive on the question of its admissibility given what can be inferred about the size of the business of drug trafficking in which they are involved. But there is evidence in a previous conversation between Cornwell and Diez that one drug that they are selling, or trying to sell, is cocaine. The conversation should be admitted notwithstanding its prejudicial effect.

Conversation 5 - 9 April 2001 64 This conversation is between Cornwell and Lawrence. Its relevance is principally in the fact that it reflects the relationship between the two and their business dealings. It includes references to how sales are proceeding and who owes what money. In my view it is admissible to show the nature and extent of the business dealings between Cornwell and Lawrence at the time of their alleged involvement in the conspiracy the subject of the charge. 65 During the course of the conversation Cornwell refers to Lawrence as "my partner and my friend". However, the relationship is not without its difficulties and Lawrence complains that he is the one "taking the fucking odds all the time" and he protests about their respective roles in a "job" that Lawrence is waiting for. Cornwell tells Lawrence that "..I've got all the buyers, all bar the Coogee fucking mob" and that he has "got the gear for us". It is well open to the jury to conclude that this is a discussion about the drug being imported and what each is doing in that regard. 66 In particular there is a discussion about Cornwell's ability to handle a particular person, which appears to be part of Cornwell's duties. The jury could infer from what is said about this person and his being described by Cornwell as "a baby" and "a fuckin pussy cat" that it is a reference to Diez. Later in the conversation there are further complaints by Lawrence about what he has to do in relation to a boat and going to Melbourne and discussions about a four-wheel drive vehicle. The jury could infer that all of this conversation relates to the alleged conspiracy. Later the two return to the subject of a person the jury might conclude is Diez because Cornwell complains that "he keeps this fuckin pressure on all the time about how they're gonna fuckin kill his family and all this shit every second day". In a previous conversation Diez complains to Cornwell about the pressure being placed on his family by unnamed persons. 67 The Crown has agreed to delete some part of the conversation as being irrelevant, but the balance in my view is clearly admissible and ought to be admitted notwithstanding any prejudice to which it might give rise.

The balance of the conversations 68 It should be obvious by now the basis upon which I consider conversations in which the accused was a participant to be admissible. The fact that the conversations may disclose that the accused was involved in the business of trafficking in drugs is admissible. Further, the fact that some parts of the conversations may not be shown to be relevant to the charge does not necessarily mean that that part of the conversation should be excluded. 69 The balance of the conversations tendered against the accused Cornwell are with Lawrence. They are much the same as the earlier conversations to which I have referred in some detail. They clearly contain material that is relevant to the charge and so much was conceded by Mr Boulten. At times the conversations move from discussions apparently about the impending importation to discussions apparently concerned with present drug transactions. Much of it is about money and who owes what amount. There may be grounds to dispute whether a particular part of the conversation concerns the role of the accused in future importation or his part in the present distribution of drugs. In the circumstances of this case, and having regard to my view about the admissibility of the latter to prove the former, it may not matter very much at least on the question of the admissibility of the evidence. 70 Ultimately whether the content of the conversations proves that the accused was a participant in the conspiracy alleged by the Crown is a matter for the jury having regard to the conversations as a whole and what inference, if any, can be drawn from them. I am told that the accused's defence will be that he was never involved in an agreement that the drugs should be imported. But a statement of the accused's defence is not decisive on the issue of whether the Crown is entitled to call evidence about an element of the offence that it is required to prove beyond reasonable doubt even though there may be no dispute about the matter. 71 Apart from conversations relating to the purchase by Lawrence of a firearm, the material in the balance of the conversations is generally admissible and there is no basis to exclude them or any part of them under any provision of the Evidence Act. I will hear further argument about the relevance of firearms later as the evidence on that matter transcends the particular conversations with which I am presently concerned. The Crown agreed during argument that it would not lead certain parts of the conversations and that concession has been noted in the trial transcript. I am prepared to revisit particular matters in the transcripts, which I have described as the minutiae, if the need arises and when I have a better understanding of the totality of the evidence in the Crown's case. **********

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