R v Scott Alan MAY [2008] NSWSC 595 | Case summary

"Q. Just tell us, as best you can, what Sean Rafferty said to you? A. That, to the effect of that, you know, I had to match what, you know, what Al was doing, as much money as Al was doing, because Al was making, making the other guy $11,000 a day and so he was, you know, a bit under pressure to perform and so like, but things were a little bit slow at the time." 4 In cross-examination Mr Watts, who appears for the accused, asked a number of questions one of which was in the following terms: "Q. Well, when was it that he said to you you're meant to be selling $11,000 a day? A. What he was actually saying, and it wasn't that time, I think it was a couple of times after that, he was panicking because he was saying - when he says, 'I am meant to be', like we are meant to be making $11,000 because that's what Al used to make this guy and now we've got to be making $11,000 or, you know? Do you know what I mean? Like he - like we should be making $11,000, we should be doing what Al used to do, you know. He wants to make that amount of money again, like. So I can only do what I can do, I can only--" 5 The conversation was adduced by the Crown in chief, without referring to the identity of "the other guy" or "this guy", and the identity of that person was not sought to be explored by the Crown in chief, nor in any way opened up as a subject matter by Mr Watts in cross-examination. 6 In those circumstances, the questions that go to the identification of the person referred to by DN as "the other guy" or "this guy" are questions that do not arise from cross-examination. Section 87(1)(c) of the Evidence Act 7 The Crown seeks leave to ask further questions in chief exploring the identity of "the other guy" and, therefore, the issue of the relevance and admissibility of the material arises. The Crown asserts admissibility on the basis of the terms of s 87(1)(c) of the Act. 8 It is said by the Crown that there is a common purpose between Mr Rafferty and the accused, either or both, in the sale of drugs and/or in the taking over of the business of the deceased. The provisions of s 87(1)(c) of the Act are in the following terms: "87(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: … (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party." 9 These provisions require that, for an admission by one person in the absence of another to be permitted to be adduced into evidence in the circumstances there adumbrated, the representation must be made by the person, in this case by Mr Rafferty, in furtherance of a common purpose that Mr Rafferty had with, relevantly, the accused. 10 However, the attempt by the Crown to adduce this material is premature. The Crown assumes and/or asserts, without evidence (other than the evidence in dispute), that such a common purpose between the witness, Mr Rafferty, and the accused, Mr May, existed. 11 The commencement point for such an analysis is the judgment of the High Court of Australia in Ahern v R [1988] HCA 39; (1988) 165 CLR 87. In that judgment the Court (Mason CJ, Wilson, Deane, Dawson and Toohey JJ) said: "In our view, the test adopted in Tripodi is the appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant. The words 'reasonable evidence' have provided a standard which has been applied without difficulty in this country for some years, at least in cases where preconcert has been the basis upon which evidence has been led in cases other than conspiracy, and there is no reason to suppose that if it has provided an appropriate test in those cases, it will not do so where conspiracy is charged. If there is any difference between 'reasonable evidence' and 'a prima facie case', which in this context we very much doubt, then the words 'reasonable evidence' are to be preferred providing, as they do, a test of admissibility for which no more precise expression is needed. The aim in limiting the use which might be made of a co-conspirator's acts or declarations is to exclude such evidence when its admission might operate unfairly against an accused. For this purpose, the element of discretion implicit in the term 'reasonable evidence' is desirable." (at 100 [17]) 12 The Court had earlier discussed the necessity to cut the Gordian knot of the issue, discussed in a variety of cases, that most evidence of this kind is probative, not only of the admission or conduct, but also to the very existence of the conspiracy or common purpose. It is, as the High Court judgment adumbrates, necessary for there to be established that there was a combination in which the accused was a participant and such must be established otherwise than by the acts or words sought to be adduced. 13 In this case such other evidence has not yet been adduced. Further, the material sought to be adduced requires reasonable evidence not only of a common purpose between Mr Rafferty (the person making the representation) and the accused to sell drugs, but a common purpose between Mr Rafferty and the accused to sell drugs to or through the deceased and/or a common purpose between Mr Rafferty and the accused to take over the drug business of the deceased. No evidence, other than that which may be inferred from the evidence sought to be adduced, is to that effect, at this stage. 14 The judgment in Ahern, supra, predated the Act. However, it is fairly clear that the Act reflects the rationale of the High Court in Ahern. 15 The issue was discussed by the Court of Criminal Appeal (Sully, Dunford and Simpson JJ) in R v Macraild, unreported, NSWCCA, 18 December 1997. The Reasons for Judgment of Dunford J (with which Sully and Simpson JJ agreed) held that s 87 of the Act "reproduces the common law relating to representations made by co-conspirators: Ahern; or in furtherance of a common purpose: Tripodi v R (1961) 104 CLR 1." 16 The Court of Criminal Appeal took the same approach to the necessity for other evidence to satisfy the precondition for admissibility under s 87(1)(c) of the Act in R v Sukkar [2005] NSWCCA 54 (Wood CJ at CL, Hidden J and Smart AJ) in which the Court held that there was sufficient prima facie circumstantial evidence to satisfy the precondition in Tripodi v R [1961] HCA 22; (1961) 104 CLR 1 and Ahern. 17 As was made clear in Brownlee v R [1999] NSWCCA 57; (1999) 105 A Crim R 214, the satisfaction of the statutory precondition is not formulaic. It is necessary to have reasonable independent evidence of the participation of the accused in the common purpose. "Independent", in that context, means separate from the evidence sought be adduced under the section, and does not require evidence from independent sources. The Court (Adams J, with whom Spigelman CJ and Abadee J agreed) cited, as applicable, the following passage, from Tripodi: "When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case. In The King and The Attorney-General of the Commonwealth v. Associated Northern Collieries (the Coal-Vend Case) [1911] HCA 73; (1911) 14 CLR 387 Isaacs J. said of evidence of the acts of individuals done in furtherance of a preconcerted common design in cases of conspiracy what is doubly true when such evidence is tendered in proof of a charge of a substantive crime committed by several acting in preconcert : 'It is an error to say that acts of one defendant, however numerous, and however pointedly in furtherance of the prohibited purpose, are necessarily admissible as overt acts of (an) offence against a co-defendant charged with conspiring with the first. They are not so admissible unless the two defendants are shown to be associated for that purpose, so as to make the purpose common to both.' (1911) 14 CLR, at p 400 . It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or pre-concert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts." 18 As Brownlee makes clear, there must be "independent" evidence of the common purpose. That is a necessary, but not sufficient, basis for the admission of the previous representation. It is also necessary for the Court to have reasonable evidence, other than the evidence sought to be adduced, from which it can be ascertained that the representation was made in furtherance of that common purpose. This is not differentiating the burden of proof, but simply restating the requirements of the section. 19 The mere existence of a common purpose does not make every representation by one participant in the combination evidence against another party to it. The representation must be in furtherance of the common purpose, utilising the same underlying principles as the rule relating to agency or partners in a business: Ahern at 95, [8]. 20 In order for this evidence to be admitted at this stage, there must be independent evidence of the common purpose, lawful or otherwise, that exists between Mr Rafferty and the accused and reasonable evidence from which I can infer that the representations are in furtherance of the common purpose. At this stage of the proceedings, no such independent evidence exists. 21 In those circumstances, at this stage of the proceedings, I am not minded to allow the evidence to be adduced. However, I will give leave to the Crown to reopen the question, if and when there be independent evidence of a common purpose between the accused and Mr Rafferty that satisfies the test. 22 Lastly, counsel for the accused submits that s 87 of the Act can be used to admit evidence only of the representations in furtherance of a common purpose that is the subject of the charges before the Court. Counsel submits there is no authority on point. 23 The Court of Criminal Appeal has, in passing, dealt with something similar to the issue: R v Watt [2000] NSWCCA 37. The reasons for judgment of the Court were, except on this issue, given by Hidden J. His Honour proposed the orders of the Court. In a short note, Greg James J agreed with reasons of Hidden J, except as to the admissibility of a conversation. On the question of that admissibility, Greg James J said: "[32] In my view, for that conversation to be admissible against this appellant as an admission by him as made by the speaker with his authority, the trial judge merely had to be satisfied that it was made in furtherance of a (not the) common purpose (s.87(1)(c)), and that there was reasonable evidence of pre-concert between them for that purpose (as there was).

[33] In this case, the common purpose charged was that in furtherance of which the statement was made because it included the supply on the charged dates and on others (see Regina v. Macraild (CCA, unreported 3 November 1997 at 7, per Dunford, J.)." (emphasis in original) 24 In an even shorter note, Grove J agreed with the orders proposed by Hidden J and said: "… I would adopt the approach to utilisation of s 87(1)(c) of the Evidence Act 1995 specified in the reasons of Greg James J." 25 It seems Watt has been misunderstood by some. The statement of principle by Hidden J on the operation of s 87(1)(c) of the Act is not challenged by the remainder of the Court, and, with respect, could not be. The difference in the approach to the disputed evidence in Watt is that Hidden J construed the conversation as in furtherance of a common purpose that was not relevant to the charge then before the Court. The majority construed the conversation as, at least in part, in furtherance of the common purpose that was then the subject of the proceedings. 26 As in most cases, in Watt the existence of another uncharged common purpose (and representations made in furtherance thereof) was not relevant to, and would be excluded from, proceedings in relation to the charge before the Court. 27 The proceedings in this matter now before the Court are different. The disputed representation and common purpose are not alleged to be part of a common purpose for the commission of the offence charged. The defendant does not suggest, nor could he, that the alleged common purpose is irrelevant. The Crown case alleges that the common purpose is the supply of drugs and the takeover of the drug business of the deceased, which common purpose was the motive for the offence charged. 28 Evidence probative of the common purpose and its extent is relevant and admissible as is the representation. Subject to the precondition which I have already discussed, the representation would, therefore, be admissible pursuant to the terms of s 87(1)(c) of the Act, the provisions of which do not confine the admissibility of representations to the common purpose subject to the charges before the Court. The judgment of the Court of Criminal Appeal in Watt is not authority to the contrary. It is authority for the principle that the common purpose and representation must be relevant to the charges before the Court. 29 The question (and answer) is not, at this stage, permitted but, if independent evidence were before the Court, then the disputed evidence would be.

R v Scott Alan MAY

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