Conclusion
30 That being the circumstance I conclude that there is no logical reason why an evidentiary rule that is based upon common sense principles, that is that proof that a number of people have combined with the intention of helping another to commit a crime, is not available to be applied to cases which arise under the Code and to cases brought pursuant to s.11.2 of the Code. I do not see that the application of the rule in Tripodi is inconsistent and incompatible with the terms of liability provided for under the Code or inconsistent with an indictment that accused persons have aided and abetted an offence.
31 Furthermore, I conclude that where there is, as in the present case, evidence which demonstrates that a number of persons have combined together with a common purpose to assist and/or facilitate the commission of an offence, then as a matter of both law and common sense, the planning activities related to the provision of such assistance and/or facilitation, including relevant acts and conversations, are admissible to prove such a combination, and the fact of a common intention. Furthermore in certain circumstances such evidence may be admissible to prove the extent of the participation of those persons in the commission of the crime.
32 In my view, evidence of acts and utterances is prima facie admissible to demonstrate that there was a combination, as alleged by the prosecution in this case, between such accused persons as to whom the evidence relates, to import narcotic goods into Australia. This evidence may be led not to prove the truth of any assertion or implied assertion but to establish that there was a combination and a common intention for such accused persons to combine to engage in assisting with the importation of heroin into Australia.
33 The issue which then arises is whether there is sufficient independent evidence of the participation of any individual accused person so as to enable the evidence to be used to prove the participation of that accused person in the combination. That is, are there circumstances in which evidence of the acts and declarations of other participants outside the presence of the individual may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation? In my view, and notwithstanding the fact that the Code appears not to contemplate proof of criminal responsibility by application of the concept of acting in concert, where there is evidence that co-accused and or others have participated in the carrying out of a joint arrangement which is relevant to the offence with which they are charged then such evidence is admissible in accordance with established principles. Furthermore, by structuring criminal responsibility in the way that it appears to have done, it is highly unlikely that Parliament did intend to remove what is a clearly established principle of evidence from application to cases prosecuted under the Code provisions.
34 Separate rulings in relation to individual persons will deal with the issue of the consequence of this "in principle" ruling. Furthermore, as I understand it, further submissions are yet to be made in the event that I rule, as I have done, that as a matter of principle, evidence may be led as to the acts and utterances of one or more of the accused persons, in the absence of other accused persons to prove the fact of the combination of persons for a guilty purpose, and not to establish the truth of the acts or utterances.