Court of Appeal (WA)|2008-03-07|Before: Mr P, Steytler P, Lure JA, Pullin JA

UPTON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 54 (7 March 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : UPTON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 54

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Practice and procedure - Application for leave to appeal - Whether appeal has reasonable prospect of success - Extension of time to file notice of appeal

Criminal law - Evidence - Appeal against conviction under the Misuse of Drugs Act 1981 (WA) - Admissibility of intercepted phone calls - Grounds of admissibility - Relevance - Hearsay - Propensity evidence

1 STEYTLER P: On 20 February 2007 the appellant was convicted, after trial, on two charges. The first was one of selling or supplying MDMA (otherwise known as ecstasy) contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). The second was one of possession of MDMA with intent to sell or supply contrary to s 6(1)(a) of that Act. She seeks leave to appeal against both convictions. Because her notice of appeal was lodged some three months out of time, she requires an extension of time.

2 The appellant was charged on the same indictment (Indictment 941 of 2005) as two other accused. The first of these was Mr Daniel Wallace, her son. The second was Mr Michael Lawrence Armstrong. Count 1 on the indictment charged Armstrong with counselling or procuring another (Mr Victor Loffler) to possess MDMA on or about 20 January 2005. He was convicted on that charge. Count 2 on the indictment charged Wallace and the appellant with selling or supplying MDMA on 21 January 2005. This was the first of the charges on which the appellant was convicted. Count 3 charged Wallace and the appellant with possession of MDMA on 21 January 2005, with intent to sell or supply it to another. This was the second of the charges on which the appellant was convicted. Wallace was convicted only on count 2.

3 Loffler was not charged on Indictment 941 of 2005. However, he and another offender, Mr Robert Perkous, were separately charged. The two men pleaded guilty to two counts of conspiracy to sell or supply MDMA on 4 December 2004 and 5 January 2005 respectively. Loffler also pleaded guilty to a third charge of possession of MDMA with intent to sell or supply. This third charge related to the drugs the subject of count 2 on Indictment 941 of 2005.

4 The prosecution case against the appellant was largely circumstantial. It relied significantly on intercepted telephone calls. These were intercepted from Loffler's mobile telephone. The police had been intercepting calls made from and to that telephone between early December 2004 and 21 January 2005.

5 The evidence led by the prosecution at the trial established that Loffler was the manager of a night club. Armstrong worked at the night club as a crowd controller. The two men were in a drug dealing relationship. The State contended that, in the period leading up to 21 January 2005, arrangements were made between Loffler, Armstrong, the appellant and Wallace for the delivery of MDMA to Loffler. In a telephone conversation between Loffler and Armstrong on 13 January 2005, Armstrong was said to have told Loffler, using a form of code, that he wanted 300 MDMA tablets. The prosecution contended that this call, with other intercepted telephone calls (parts of which were also in code) revealed that arrangements were made between Loffler and Armstrong that Loffler would pick up the drugs from Wallace.

6 When the time to supply the drugs arrived, Wallace was running late. In one of the intercepted calls, made on 21 January 2005, Wallace told Loffler, 'If you're in a hurry I can ... just ring the old girl and tell her your comin [sic] over'. The 'old girl' was said to have been the appellant. Loffler responded, 'Yeah alright, do that'. Loffler then went to the appellant's home in Namur Street in North Perth. Her house was under police surveillance. When Loffler arrived, a Toyota motor vehicle, registered in Perkous' name, was parked outside the house. Perkous' evidence was that his car was then being driven by his girlfriend, Louise Upton. She was the appellant's daughter. Not long after Loffler arrived, an unidentified woman came out of the house, got into the Toyota and drove away. This woman may or may not have been Louise Upton. A little while later Loffler emerged from the house with the appellant. The two talked for a short while. Nothing was seen in Loffler's hands. Loffler then got into his car and drove off.

7 Loffler was stopped by police a few minutes later. They found 302 MDMA tablets in his car. These were concealed behind a gauge in the dashboard. The screws to the dashboard were found in the car's console. There was no screwdriver in the car. The tablets were divided into three plastic clip seal bags. These were wrapped in a sheet of paper towel.

8 The police searched the appellant's home. They found 558 MDMA tablets in a black purse in a dog food container. The tablets were in clip seal bags. Other clip seal bags were found in the house. These were identical in appearance to those found in the dog food container. They were also identical to the bags found in Loffler's car. The tablets found in the dog food container were identical to those found in Loffler's car.

9 A roll of paper towels was also found in the appellant's house. This was examined by Senior Constable Gary Hyde, a qualified forensic investigation officer. He compared the roll with the paper in which the drugs found in Loffler's car had been wrapped. Both had similar patterns. The single sheet of paper found in Loffler's car was aligned with the end of the roll found in the appellant's house. This revealed that the damage to each that had been caused in the tearing off process was in alignment. Also, the pattern on the roll was the same as, and in alignment with, that on the sheet. However, there was not an exact fit between the two items. Constable Hyde suggested that this might be because the sheet had been treated with ninhydrin for the purpose of obtaining fingerprints. This might have caused it to expand whilst wet and to contract when drying. He said that he could not exclude the possibility that the sheet came from another roll of paper towels.

10 The police found other items in the appellant's home. There were PVC pipes which were sealed at either end. These were said to be the kind of items that were used to store or bury drugs. A set of scales was found with traces of methylamphetamine on them. Other small amounts of ecstasy and methylamphetamine were found. $2,030 in cash was also found.

11 The prosecutor contended that all of this evidence, including the telephone intercepts, established that the appellant and Wallace were engaged in drug dealing. The 558 ecstasy tablets found in the appellant's house (the drugs referred to in count 3) were said to have been part of her stock-in-trade. The 302 ecstasy tablets found in Loffler's car (the drugs referred to in count 2) were said to have come from that stock and to have been sold to him by the appellant.

12 In common with the other defendants, the appellant elected not to give, or to call, any evidence at the trial.

13 In his closing submissions, her counsel contended, in effect, that it had not been proved that the association between the appellant and Loffler was other than innocent. He suggested to the jury that Loffler had not got the drugs found in his car from her. He pointed to the fact that nothing was seen in Loffler's hand as he left her house. He also pointed to the fact that only $2,030 in cash was found. He said that there was no evidence as to when the drugs found in Loffler's car were placed there. He suggested that they were already there when Loffler visited the appellant. There was also some suggestion that, if the drugs were obtained at the appellant's home, they might have been supplied by the woman who was seen leaving it.

14 Counsel for the appellant also stressed that there was no DNA or fingerprint evidence linking the drugs found in Loffler's car to the appellant. He said that the evidence concerning the paper towel was not conclusive. He disputed that the appellant knew about the presence of the 558 tablets found in the dog food container. Again, there was no DNA or fingerprint evidence linking these drugs to her. She was not the only person who lived in the house. She lived there with a man known as Mr Robert Loles. Wallace also lived there from time to time. Loles' fingerprints were found on the dog food container. The evidence concerning the telephone intercepts was said to have been inconclusive.

15 As I have said, the jury convicted the appellant on both counts.

16 There are two grounds of appeal. These read as follows:

Ground 1

The learned trial Judge erred in law by finding that various intercepted telephone calls between others, namely a Mr Loffler and Mr Armstrong, were admissible against the Appellant pursuant to s 31A of the Evidence Act 1906 (WA).

Ground 2

The learned trial Judge erred in law by failing to direct the jury that they could not use the intercepted telephone conversations, to which the Appellant was not a party, as evidence in considering the case against the Appellant.

Particulars

The telephone calls were inadmissible as evidence against the Appellant; and

The determination of the admissibility of evidence is not a matter for the jury to decide, it is a matter for the learned trial Judge to direct the jury on accordingly.

17 During the course of argument, counsel for the appellant sought leave to add a further ground of appeal. This was to the effect that the trial judge erred in failing to direct the jury that they could not rely on evidence of prior drug dealing by the appellant to reason that she was the type of person likely to have committed the offences charged against her. The respondent did not 'strenuously oppose' the application to amend. Nor was there any objection to the application for an extension of time, even though the explanation for it was not particularly compelling.

Admissibility of the intercepted telephone calls

18 Ground 1 does not clearly identify those calls that were said to have been inadmissible against the appellant. However, in oral submissions, counsel for the appellant identified these as being calls numbered 1 to 10, 14 to 18, 20 to 28 and 30 to 42 in a schedule listing some of the intercepted calls.

19 Call number 1 was made by Loffler to Wallace. In the course of it, Loffler asked Wallace if he could send him his 'mum's new number'. Wallace said that he would do so. Wallace also told Loffler that he would send him 'a business card'.

20 Except for call 3, calls 2 to 10 were all conversations between Loffler and Armstrong. Call 3 was a message left by Armstrong for Loffler. Some of these calls involved references to dinner reservations, in the course of which the two men discussed how many people would be present at the 'dinner'. The word 'reservations' was said by the State to be code for drugs and the numbers were said to reflect the quantities, in hundreds, of the drugs to be supplied. There was also a conversation in the course of which Armstrong mentioned a 'good looking friend' of Loffler's who was 'coming to dinner with us next week'. He said that he had 'helped her out this week' and that 'fucking Smelly just found out about it' and was 'gonna keep it up his sleeve and use it against me'. 'Smelly' was acknowledged to have been a nickname for Perkous.

21 Calls 11, 12 and 13 (to which no objection was made) were calls between Loffler and the appellant. In the first of them, made on 18 December 2004, Loffler told the appellant that all was 'good' at his end, bar one thing. The one thing was that a person, to whom he referred as 'Bobby', had said to a 'couple of people' who, Loffler said, were 'two of ours', that he could 'do better'. This was said by the State to be a reference to 'Bobby' having offered to sell drugs to two of Loffler and the appellant's customers at a cheaper price. The appellant responded by saying, 'I'll fuckin pull his fuckin head in up his arse'. She also said, 'Louise has been telling me he's like this hey ... And every time I have a go at him he denies it'. She told Loffler to 'Leave it in my capable hands'. The second call involved a request by Loffler to the appellant to keep his name 'out of it'. In the third call, made by the appellant to Loffler, she told Loffler that she needed to meet him that day. She arranged to meet him 'at the Dome'.

22 Calls 14, 15 and 20 to 28 were between Loffler and Armstrong. All of these took place over the period 20 December 2004 to 3 January 2005. The conversations between the two men seemingly related to dealings in drugs although, once again, all references are in code. Calls 16, 17, and 18 were between Loffler and Wallace. The last two of these calls were made on 28 December 2004. In the first of them, Loffler asked Wallace whether his 'mum' was home. He was told that she was, but that she had a headache. Loffler asked if she would mind if he popped around and 'quickly [saw] her for two secs'. Wallace responded by saying that her headache was not too bad yet and that she shouldn't mind. The second call on that day was made some three minutes later, at 21:36. Loffler remarked that he would not 'worry about it today' because he could see that the appellant's lights were off and it looked as if she was asleep. When Wallace asked if it was important, Loffler responded by saying, 'Nah, nah, nah. Just wanted to talk to her about, what, what'. Loffler asked Wallace whether the appellant was 'okay'. He was told that she was not happy. A little later in the conversation, Wallace explained to Loffler that the appellant's unhappiness was not directed at him but at 'the other one'. He said, 'She reckons that there's some, some dodgiments goin on'.

23 Call number 19 (not objected to) was made by Loffler to the appellant on 30 December 2004. He told her that he was 'going to come over and visit'. She responded by saying, 'Alright I think I know why'. Loffler asked her, 'Has someone fucked up?' She responded, 'No, no'.

24 Call number 29 (also not objected to) took place on 3 January 2005. It was a very short conversation in the course of which Loffler arranged to see the appellant at her home in about 10 minutes.

25 Calls 30 to 36 and 38 to 42 were between Loffler and Armstrong. Calls 32 and 33 involved a brief exchange between the two over an answering service. All of these calls seemingly refer to drug-dealings between the two. Again, code is used.

26 Call number 37 was made by Loffler to Wallace. Wallace was not at home. Loffler left a message for him to 'give [him] a call on [his] mobile'.

27 The calls intercepted on 20 and 21 January 2005 were not objected to. There were seven of these.

28 The first of them was between Armstrong and Loffler, on 20 January 2005. Loffler asked, 'Are we on for this week?' Armstrong responded, 'What'd you mean? You told me the old lady was all good this week'. The 'old lady' is alleged to have been the appellant. Loffler then told Armstrong that 'we weren't sure if we're gonna do uh, since fuckin Fat Boy'. He went on to say, 'We weren't sure about things since Fat Boy'. In the course of the conversation, Armstrong told Loffler that he did not want to 'have to go and see her'.

29 In the next conversation, also on 21 January, Loffler asked Armstrong if he was 'sorted'. Armstrong said, 'You told I [sic] didn't have to. You said you were seein the old lady'. Loffler responded by saying 'Okay, no I thought you might have gone'. Armstrong said, 'No mate'.

30 The next conversation, on the same day, was a telephone call initiated by Loffler to Wallace. In the course of it, Wallace asked Loffler, 'Wanna catch up with me or old girl?' The two arranged for Wallace to meet Loffler at his 'place'.

31 Some three minutes later the appellant telephoned Loffler. She said, 'Do you want me to come over there for coffee or you wanna come here?' Loffler told her that he had just telephoned 'younger one'. He said, 'Well do you wanna? Um, its up to you'. She responded, 'Nah, I; well, I don't know what he's doing'. Loffler said, 'He's on his way' and the appellant responded, 'Okay, no worries'.

32 Some 38 minutes later, Armstrong telephoned Loffler. Armstrong asked Loffler, 'What's up; how long you gonna be mate?' Loffler said that he was 'waiting'. Loffler immediately telephoned Wallace. Wallace said that he had been delayed and that he would probably be 'half an hour'. He said, 'If you're in a hurry I can fuckin just ring the old girl and tell her you're coming over'. Loffler asked him to do that. The last of these seven telephone conversations followed immediately. Loffler telephoned Armstrong and told him, 'I'm gonna go there myself now'. The two arranged to meet later.

33 As I have said, ground 1 contends that the trial judge erred by finding that the intercepted telephone calls between Loffler and Armstrong were admissible against the appellant under s 31A of the Evidence Act 1906 (WA) (Act). However, no such ruling was made, expressly, by the trial judge.

34 Before evidence of the intercepts had been led, counsel for the appellant objected to it. The telephone calls between Loffler and Armstrong were said not to involve the appellant in any way and to have no bearing on the two charges brought against her. However, they were said to be prejudicial because they might, 'by some form of osmosis, land upon the [appellant]'.

35 In response, the prosecutor acknowledged that the evidence in question was propensity evidence, but said that it would be led to rebut any defence of innocent association with the MDMA found in the appellant's home and in Loffler's car.

36 The trial judge then dealt with the objections. She mentioned that the telephone intercepts on 20 and 21 January 2005 were not challenged. She went on to say:

Broadly, the evidence in issue is this: the state relies on the evidence of a person called Perkous, who claims to have been involved in dealing in ecstasy with Armstrong and Loffler prior to 20 January 2005. Further, the state relies on telephone intercepts as far back as 15 December 2004 to show the relationship between Loffler and Armstrong and to put the telephone intercepts on 20 and 21 January 2005 and the telephone intercepts before then into context.

... Also the telephone intercepts between Loffler and Wallace are relied upon to show the identity of mobile phones and to show the relationship of Loffler and Wallace and the relationship of Loffler and Upton. I am not sure that the defence are intending to dispute that evidence but there has been no categorical indication that that's the case.

The state alleges that there were two criminal enterprises operating round this time, in late 2004 and early 2005. One was between Armstrong and Loffler, as revealed in the telephone intercepts, and the other was between Wallace and Upton, as a result of which Upton and Wallace ended up supplying Loffler with the 302 ecstasy tablets, and it's said that Loffler, to use counsel's expression, 'swings between the two enterprises'.

37 The trial judge next referred to evidence that the prosecutor proposed to lead from Perkous. In the course of doing so, she said:

On 30 December 2004 Loffler telephoned Perkous and they arranged to meet Armstrong at Loffler's place. There was a discussion relating to Perkous collecting drugs from Loffler's place the next day. Perkous said he wanted 200 pills and the price was set at $6200. He collected the drugs from Armstrong and Loffler the next day. I will refer to this as the Perkous evidence.

She then turned to the intercepts of conversations between Armstrong and Loffler, to which she referred as 'the Armstrong intercepts'. She said that these were said by the prosecutor to relate to drug-dealing transactions involving Loffler, Perkous and Armstrong.

38 The trial judge dealt first with objections that had been made to evidence proposed to be led from Perkous, in the course of which he would 'give meaning' to the telephone intercepts involving him. She said that this evidence was relevant to prove that Armstrong was in the business of drug dealing, including dealing in ecstasy. It was also relevant to establish that Armstrong and Loffler had a relationship that involved dealing in drugs. She said that the evidence consequently went beyond mere propensity evidence and was probative of a fact in issue. She ruled that it was consequently admissible.

39 She then dealt with objections to the Armstrong intercepts. She said that these were admissible to prove that Armstrong and Loffler had a relationship of some sort and were in relatively regular communication with one another. She went on say (ts 103):

In my view, the telephone intercepts between Armstrong and Loffler are admissible against Armstrong, as I have already outlined. Standing alone, the conversations don't appear to implicate Upton, nor without some explanation from other evidence do they specifically implicate Armstrong, save to the extent that I have outlined.

The state has not yet outlined whether those telephone intercepts are also admissible against Upton. I don't envisage that the state will need to open on their relevance or otherwise to the case against Upton. Accordingly, a final decision on the issue of the admissibility against Upton and indeed Wallace will await the emergence of the evidence. If the evidence is not admissible against Upton and Wallace, then I will give the jury the appropriate direction in that regard.

40 The trial judge never did rule, expressly, on the admissibility, as against the appellant, of the telephone intercepts between Armstrong and Loffler. However, when she came to direct the jury, she appears to me to have treated them as having been admissible against the appellant. No request for a redirection was made by counsel for the appellant.

41 Ground 1 refers only to the telephone calls between Loffler and Armstrong. However, as I have mentioned, the appeal was argued by counsel for the appellant on the assumption that evidence of the calls between Loffler and Wallace prior to 20 January was also objected to. I will treat the ground as if it encompassed these calls.

42 Counsel for the appellant contended that the telephone calls to which objection is made should have been ruled inadmissible. He said that they were entirely irrelevant as against the appellant. He also objected to this evidence upon the basis that it infringed the hearsay rule. Finally, he seemed to say, perhaps by way of an alternative submission, that the evidence was propensity evidence and should have been excluded upon the basis that it did not satisfy the provisions of s 31A of the Act.

43 Counsel for the respondent contended that the telephone calls to which objection has been made were not left with the jury upon the basis that they were admissible against Upton. He said that the trial was run upon the basis that they were irrelevant in respect of the case against her. He contended that the trial judge directed the jury upon that basis.

44 In the parties' closing submissions, and in the trial judge's summing up, the intercepted calls appear to have been divided into three categories. The first was one of 'background phone calls', being calls leading up to 20 January 2005. The second was the 'Perkous phone calls' being calls (some of which were also background calls) made by or to Perkous or in which his name was mentioned. The third category comprised the calls made on 20 and 21 January 2005.

45 In support of his submission that the first and second categories were treated by the trial judge as irrelevant to the case against the appellant, the prosecutor relied, in particular, upon two passages from her summing up. The first follows the trial judge's discussion of a number of calls between Armstrong and Loffler, and also some discussion of the 'Perkous evidence' (by which expression she seems to have referred to his oral evidence and also to telephone calls involving or concerning him). She said (ts 560):

So the state says that the Perkous evidence and the background calls lead you to a finding by drawing a number of inferences that there was a relationship between Loffler and Armstrong and that relationship involved drug dealing.

Counsel for the respondent contends that this passage makes it plain that the trial judge regarded the evidence to which she referred as being relevant only for the purpose of proving the relationship between Loffler and Armstrong.

46 The second passage that is particularly relied upon by the respondent (ts 577) reads as follows:

In relation to Ms Upton, again it's suggested to you that the evidence may cause you to be suspicious but suspicion is not enough. There were thousands of phone calls that were intercepted by police, near to 3000, and those involving Ms Upton, only six have been recorded for your consideration. Those six were on 18 December, when there were two; 20 December, when there was one; 30 December, 3 January and 21 January.

47 Counsel for the respondent contended that, when these two passages are read in the overall context of the trial judge's summing up, it must have been obvious to the jury that, when considering the case against the appellant, they should focus only on the six identified conversations in which she participated and not on the other telephone calls.

48 Finally, counsel for the respondent contended that, in any event, evidence of the telephone conversations to which objection was made (challenged calls) was admissible against the appellant.

49 The hearsay point is easily disposed of. Evidence of a statement made to a witness by a person who is not called to give evidence is hearsay and generally inadmissible when the object of the evidence is to establish the truth of what is contained in or implied by the statement. The evidence is not hearsay, and is admissible, when it is led, not to establish the truth of the statement, but only to establish the fact that it was made: Subramanian v Public Prosecutor [1956] 1 WLR 965, 970 (PC); R v Murphy (1985) 4 NSWLR 42, 61 (Street CJ, Hope, Glass, Samuels & Priestley JJA).

50 None of the challenged calls was relied upon for the purpose of establishing the truth of any statement concerning the appellant or to prove her participation in any conspiracy (none having been alleged in the charges against her): see in this last respect Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, 7 (Dixon CJ, Fullagar & Windeyer JJ) and Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87, 92 - 93 (judgment of the court). Counsel for the appellant was invited to identify an instance when hearsay evidence was relied upon for the truth of its contents in the case against the appellant. He was unable to do so.

51 As to the issue of relevance, I do not accept the respondent's proposition that the trial judge treated the challenged calls as irrelevant to the case against the appellant in the course of her summing up to the jury.

52 The first of the two passages relied upon by counsel for the respondent in this respect (that at ts 560) does not advance his contention that the trial judge treated the challenged calls as irrelevant to the case against the appellant. The observation by the trial judge in that passage was made in the course of dealing with the charge against Armstrong. She was not commenting, either expressly or impliedly, on the admissibility, or relevance, of the challenged calls in the case against the appellant.

53 Nor is the respondent's contention advanced by the second of the two passages (that at ts 577). The trial judge did not there say that the six telephone calls to which she referred were the only ones that were admissible in the case against the appellant. All that she said, in the context of her summing up read as a whole, was that only six of the many conversations recorded involved the appellant as a participant.

54 Other observations by the trial judge seem to me plainly to suggest that she regarded the challenged calls as relevant and admissible in the case against the appellant.

55 After referring to the Perkous evidence and to many of the calls between Loffler and Armstrong, the trial judge said (ts 559):

I think it's important to make this observation, and it's only an observation: you may think, and it's a matter for you, that the calls I have spoken about so far don't indicate, but it's a matter for you, that either Wallace or Upton were involved in those alleged dealings with Perkous, but it's a matter for you.

This observation seems to me unambiguously to suggest that the evidence to which the trial judge referred was regarded by her as being admissible in the case against the appellant, although she obviously regarded the calls to which she referred as failing to indicate any involvement by the appellant in the dealings referred to in them.

56 Also, when dealing with one of the calls made by Loffler to the appellant, in the course of which Loffler said to the appellant, 'Do you want me to come over there for coffee or are you going to come here?', the trial judge said (ts 564):

The State says that when you consider all of the evidence combined with this phone call, you may conclude that Ms Upton is not simply talking about having a coffee with Mr Loffler; when Loffler says, 'I've just spoke to the younger one,' he's talking about speaking to Wallace. In any event, Upton says she hasn't spoken to him; that is, the younger one, yet and Loffler ends up by saying he's on his way.

The State says you can draw an inference that this is a discussion between Loffler and Upton in which it is being sorted out who of the two of them; that is, Wallace or Upton, is going to be involved in handing over the drugs on this particular occasion.

The trial judge's invitation to consider that phone call in combination with 'all of the evidence' seems to me to be explicable only upon the basis that she considered all of the evidence to be admissible in the case against the appellant.

57 The same seems to me to be true of the following extract from the trial judge's summing up (ts 568):

The State case is that the 558 tablets found in Namur Street were part of the stash of ecstasy which Wallace and Upton had and from which they supplied the 302 tablets to Loffler and that given the phone calls between Wallace and Loffler and Upton and Loffler and all of the surrounding circumstances, you would be entitled to find that the 558 tablets, according to the State case, is what is described as the stock in trade of Wallace and Loffler and that what Loffler got and what Loffler was found with, the 300-odd tablets, came from Wallace's and Upton's stash of ecstasy.

58 In my opinion the challenged calls were undoubtedly relevant to the case against the appellant. This evidence placed the relevant events in their true context. Without it, the essential background could not be understood properly: B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 610 (Deane J); R v AH (1997) 42 NSWLR 702, 708 - 709 (Ireland J, Hunt CJ at CL & Levine J concurring) (CCA); R v Lock (1997) 91 A Crim R 356, 364 (Hunt CJ at CL); R v Fordham (1997) 98 A Crim R 359, 367 (Howie AJ, Hunt CJ at CL & Smart J concurring); Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204 [86] - [101] (Miles, van Doussa & Weinberg JJ); R v Toki (No 3) [2000] NSWSC 999; (2000) 116 A Crim R 536 [24] - [26] (Howie J).

59 I have said that the appellant's defence was that there was nothing to connect her with the drugs found in Loffler's possession or with those found in her home. Necessarily, that entailed a contention that her relationship with Loffler was innocent. In order to negative that possibility, and the possibility that she was unaware of the existence of the drugs found in her house, the State was obliged to lead evidence to establish that the appellant's relationship with Loffler was not innocent and that she was privy to, or played a part in, his drug dealing activities. The evidence of the challenged calls does much to achieve that objective. It establishes that Loffler and Armstrong were engaged in drug-dealing. It also establishes that they spoke in a code very similar to that used by Loffler in the course of his conversations with the appellant. If the jury were required to ignore these calls when considering the case against Upton, it would be difficult for them to understand the meaning and significance of the conversations between the appellant and Loffler, or the nature of the relationship between the two. On the other hand, by permitting the jury to take these calls into account, the trial judge enabled them to understand the drug dealing relationship between Loffler and Armstrong. They were also able to understand what the appellant knew and understood about Loffler's activities, and consequently to draw the logical and compelling inference that the appellant's relationship with Loffler was not innocent: Wilson v the Queen [1970] HCA 17; (1970) 123 CLR 334, 339 (Barwick CJ).

60 At least some of the evidence of the challenged calls was propensity evidence. This evidence revealed criminal or discreditable propensities of the appellant, such as to suggest, very strongly, that she dealt in drugs and, hence, was the sort of person who was likely to have committed the offences charged, in the sense that her association with Loffler and with the drugs found was unlikely to have been innocent. The same is true of at least one of the telephone conversations to which no objection is made. That is the first of the telephone conversations between Loffler and the appellant that took place on 18 December 2004. I have said that, in the course of that conversation, Loffler told the appellant that 'Bobby' had spoken to 'a couple of people', being 'two of ours' and that he had said that he could 'do better'. Read in its context, what was said was readily capable of being understood as meaning that 'Bobby' had offered to sell drugs at a price less than that charged by Loffler and the appellant. The appellant's response is strongly suggestive of her involvement with Loffler in a drug dealing organisation, at a level where she was in a position to discipline 'Bobby'. This conversation had nothing to do with the offences charged.

61 It is well established that evidence of propensity or disposition is admissible at common law if it is sufficiently highly probative of a fact in issue as to outweigh the prejudice it might cause. It ought not be admitted at common law if there is a rational view of the evidence which, when considered with other relevant evidence, is inconsistent with the guilt of the accused: Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 481 - 483 (Mason CJ, Deane & Dawson JJ); Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 296 (Mason CJ, Wilson & Gaudron JJ); BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 298 - 299 (Gaudron J). In this jurisdiction that test has since been replaced by s 31A of the Act: Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] - [73] (Roberts-Smith JA, Wheeler & Pullin JJA concurring); Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26] (McLure JA, Steytler P & Wheeler JA concurring). That section reads as follows:

(1) In this section -

'propensity evidence' means -

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

'relationship evidence' means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

62 For the reasons already given, it seems to me that the evidence objected to would, either by itself or having regard to other evidence adduced, undoubtedly have significant and direct probative value: Zaknic Pty Ltd v Svelte Corp Pty Ltd [1995] FCA 1739; (1995) 61 FCR 171 [13] (Lehane J); Tully v The Queen [2006] HCA 56; (2006) 231 ALR 712 [140], [144], [145], (Callinan J, Heydon & Crennan JJ concurring). It was highly probative of a fact in issue, namely that the appellant dealt in drugs. It also seems to me to be plain that the probative value of the evidence, compared to the degree of risk of an unfair trial, is such that fair-minded people would inevitably think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. In my opinion, there is an air of unreality in the suggestion that, in a case such as this where the context of the appellant's dealings with Loffler and with drugs in general was vital to an understanding of her conversations and dealings with Loffler that related to the events that led to the charges against her (and to her defence of innocent association), fair-minded people would have any doubt at all that the public interest in adducing all relevant evidence of guilt had priority over the risk of an unfair trial.

63 In the circumstances, it seems to me that the evidence of the challenged calls was admissible under the common law as contextual or background evidence and, so far as it amounted to propensity (or relationship) evidence for the purposes of s 31A of the Act, the evidence satisfied the requirements of s 31A(2).

64 It follows from what I have said, when dealing with ground 1, that ground 2 fails.

65 The same is true of the proposed ground 3. Under the common law, if evidence is admitted generally as propensity evidence, a propensity warning is not required. That is because the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the crime charged. A propensity direction would contradict the basis on which that evidence was admitted: KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [39] (McHugh J). The same is true of evidence admitted as propensity or relationship evidence under s 31A. If that evidence satisfies the test for admissibility (as it must do), no propensity direction is required: Noto [26] - [28]. That is not to say that no warning of any kind is required in respect of the evidence. What needs to be said will necessarily depend upon the individual circumstances. In this case, the trial judge made it plain that it was only if the jury were satisfied of the guilt of the appellant beyond reasonable doubt, after considering all of the evidence, that they could convict her, and that evidence leading only to 'suspicion' was not enough. Nothing more was required.

66 Because of the lack of any expressed opposition to the application for an extension of time, and because it seems to me (not without some hesitation) that the grounds of appeal had reasonable prospects of succeeding (see in this respect Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473), I would be willing to grant the necessary extension. I would also be prepared to grant the appellant leave to amend her grounds of appeal by the addition of ground 3 in the terms to which I have referred. Next, because I am satisfied (albeit hesitantly) that the grounds of appeal had reasonable prospects of succeeding, I am prepared to give leave to appeal in respect of each of the three grounds. However, I would dismiss the appeal for the reasons I have given.

UPTON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 54 (7 March 2008)

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UPTON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 54 (7 March 2008)

Legislation Cited (1)

Cases Cited (14)