Davidovic, v The Queen

[1990] FCA 718

Re: VASO DAVIDOVIC
And: THE QUEEN
No. ACT G28 of 1990
FED No. 718
Criminal Law
51 A Crim R 197

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Miles(1), Foster(1) and Von Doussa(1) JJ.

CATCHWORDS

Criminal Law - appeal against convictions for conspiracy to supply heroin and possession for the purpose of supply - admissibility of evidence of acts done and words uttered by other conspirators outside the presence of the accused - whether "reasonable evidence" of the accused's participation in the conspiracy - whether evidence of a common intention to supply heroin to other people - whether verdict on the charge of conspiracy unsafe or dangerous - whether evidence of participation in the conspiracy admissible on the charge of possession for supply - whether statements made outside the presence of the accused about past events as part of a statement of the present situation of the common enterprise were properly admitted.

HEARING

CANBERRA

#DATE 14:12:1990

Counsel for the appellant: Mr K. Crispin QC with

Mr F.J. Purnell

Solicitors for the appellant: Higgins Solicitors

Counsel for the respondent: Mr P. Hastings

Solicitors for the respondent: Director of Public Prosecutions

ORDER

The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The appellant was convicted upon the verdicts of a jury of the offences of conspiracy to supply heroin, and possession of heroin for the purpose of supply. He appeals against both convictions. On the original indictment the appellant was jointly charged with others but for reasons which it is not material to recite he was tried alone. The first count charged that:

Between the first day of January 1988 and the first day of March 1988 at Canberra in the Australian Capital Territory MICHAEL TEBBUTT, JANE LOUISE DIAMOND and VASO DAVIDOVIC conspired together and with divers other persons to commit offences against a law of the Commonwealth, namely, Section 4(2) of the Poisons and Narcotic Drugs Ordinance 1978, namely to supply a controlled substance, namely heroin, to other persons.

1. The second count charged that:
   

On the twenty seventh day of February 1988 at Canberra in the said Territory VASO DAVIDOVIC did have a controlled substance, namely heroin, in his possession for the purpose of supplying the said substance to another person or other persons.

1. The Crown case, in essence, on the first count was that the accused supplied heroin on a regular and frequent basis to the other conspirators who then repackaged it into smaller "deals" and distributed it to an established clientele at and from 19 Batman Street, Braddon, A.C.T., being premises occupied by Diamond and Tebbutt. The object of the conspiracy alleged was that the appellant would supply heroin to his co-conspirators who in turn would supply others.

2. The amended grounds of appeal raise for consideration three separate challenges to the conduct of the trial. The first challenge contends that the learned trial judge erred in admitting evidence of acts and of conversations involving persons alleged to be the other conspirators outside the presence of the appellant because there was insufficient other evidence to establish that he was a party to the conspiracy. This contention is said to be based upon Tripodi v. The Queen (1961) 104 CLR 1 and Ahern v. The Queen (1988) 165 CLR 87.

3. The impugned evidence was presented in the Crown case in the following way. Evidence was led from members of the Australian Federal Police that a listening device was installed in the house at Batman Street on 23 February 1988 and noises and conversations overheard in the house were recorded on tapes between 23 February and 27 February 1988. The tape recordings were proved. Evidence was led from Diamond's sister who identified the voices of Diamond and Tebbutt. The tape recordings were played to the jury, who were also provided with a transcript to assist them in their perception and understanding of the evidence contained in the tapes: cf Butera v. Director of Public Prosecutions (1987) 164 CLR 180. The voices recorded on the tapes included those of Diamond, Tebbutt and John Radecic touching the packaging and sale by them of heroin to other people who called at or telephoned the Batman Street address, and of people to whom sales were made. The conversations of Diamond, Tebbutt and Radecic also included communications by them by telephone for the purpose of conveying a message to another person who is identified by the conversations as being the supplier to them of heroin.

4. The recorded conversations, together with other recorded noises which indicate the arrival or departure of people at and from the premises at Batman Street and the use of the telephone therein, established a clear and uncontested picture of a busy sales outlet for heroin to many users conducted by Diamond and Tebbutt with the assistance of Radecic. Users sometimes came to the premises by prior telephone arrangement, sometimes they came without prior arrangement, and sometimes a delivery away from Batman Street was arranged by telephone. This activity went on throughout the day. As the supply of heroin at Batman Street ran low, or when it ran out, Diamond or Tebbutt made contact with the person who supplied them by telephoning a Telecom pager operator who was requested to transmit a message to pager number 622214, the message invariably being simply "please phone David". On occasions the word "urgently", or "immediately", was added to the message. The request for the transmission of this message would be followed, sometimes quickly and sometimes after a delay, by an incoming telephone call to Batman Street. The listening device only recorded the voice of the party to the call who was at Batman Street. The conversation so recorded identifies the incoming caller in some instances as "Dave". The speaker at Batman Street on receiving such a call would say very little, and the calls were short. The following sample of recorded conversations is indicative of what occurred:
   

23 February 1988 16.47 hrs "Hello, how ya going mate, can I see ya...where can I see yer up the pub?" 23 February 1988 22.58 hrs "Hello, how ya going mate, listen ah can I see ya tomorrow morning, say nine, no I'll leave it to tomorrow morning mate nine at the boxes, okay mate I'll see ya tomorrow, okay bye."

24 February 1988 22.13 hrs "Hello. Just a minute. Ah, how long will that take? I don't know, 10 or 15 minutes. Just be here in 15 minutes. Okay, bye, bye."

25 February 1988 13.40 hrs "Hello how ya going? That's good. Um yeah... Pardon? Yeah, I'll go down there. Okay no worries. Okay bye bye." 27 February 1988 09.31 hrs "Hello. Is that you Dave? Can I see you mate? It's got to be quick mate... Where can I see you? Down the box - how long? What about 10 minutes. Okay thanks mate. See you bye."

1. The conversations and other noises recorded on the tapes reveal that soon after such an incoming telephone call, Diamond or Tebbutt would leave the house, and after a short time return with a new supply of heroin. Over the three and a half days approximately when conversations at Batman Street were being recorded, the listening device picked up communications with approximately 25 customers; 12 paging calls to pager 622214, and discussion confirming several collections of further supplies of heroin from the supplier.

2. The appellant's challenge to the admission of the evidence provided by the tape recordings is directed specifically to the evidence of conversations but applies equally to the evidence of other recorded noises. In Tripodi at p 7 the High Court said:
   

"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."

1. It is contended that "reasonable evidence of the preconcert" was not adduced by the Crown to justify the admission of the tape recordings. Evidence, apart from that provided by the tape recordings, was led by the Crown but it is contended that this was insufficient. That other evidence, which was not really attacked as to its veracity or accuracy, was that:
   . at 8.00a.m. on 10 February 1988 Tebbutt was observed at
   

Batman Street in a white Falcon sedan NSW 00Z-133, which on later occasions was observed parked at the home of the appellant at 19 Cygnet Crescent, Red Hill, ACT, and being driven by the appellant.

. on 24 February 1988 the appellant was observed driving a

Suburu utility from 19 Cygnet Crescent, to Batman Street.

. on 25 February 1988 at 13.45 hrs the appellant was

observed driving the Suburu utility to the corner of Ainslie Avenue and Currong Street, Braddon, a location close to Batman Street, where he walked to a stairwell in a block of flats and had a conversation with Diamond. After they parted Diamond returned to Batman Street.

. 26 February 1988 at 13.43 hrs the appellant was observed

driving the Falcon sedan to the intersection of Ainslie Ave and Currong Street where he alighted, went to a telephone box, then walked from the telephone box to the stairwell of the flats previously mentioned. Diamond was then observed walking from Batman Street to the stairwell of the flats. Shortly afterwards Diamond walked from the stairwell to Batman Street, and the appellant returned to his vehicle.

. on 27 February 1988 at 09.36 hrs the appellant was

apprehended whilst driving from his Cygnet Crescent address in the direction of Batman Street. He was carrying a substance which included 704 milligrams of heroin, the actual weight of the total mixture being close to 3 grams.

. following his arrest a search of the appellant's house led

to the discovery of a telephone directory containing an entry "Mick" (the Christian name by which Tebbutt was known) against the telephone number of the Batman Street premises. In an entry in a memo book was a page of figures consistent with financial dealings, and entries for "Mick". These entries were identified as being in the handwriting of the appellant by the witness Mrs Coyle. The sum of $9,200 cash was discovered in a safe. The appellant told the police this had been recently won on horses.

. telepager number 622214 had been purchased by Mrs Coyle on

17 September 1987. Mrs Coyle gave evidence that her need for the pager in her business disappeared at Christmas 1987 and from that time until the end of February 1988 the pager was mainly in the possession of the appellant with whom she was acquainted. On occasions when she required the pager in the evening it was returned to her. On some of these occasions the pager transmitted a message which she recollected to be "call David" or "please call David". The pager was a device that displayed the message on a screen. Mrs Coyle also said that on one occasion when she was at the appellant's house Tebbutt arrived and remained for a brief time.

1. It is contended on the appellant's behalf that these pieces of evidence taken alone or together, in isolation from the tape recordings, fail to establish a conspiracy of the kind alleged, let alone the appellant's participation in the conspiracy and therefore fail to constitute "reasonable evidence of the preconcert".

2. The appellant's submissions misconceive the principles enunciated in Tripodi and Ahern. The submissions fail to recognise the clear distinction which is to be drawn between the existence of a conspiracy, on the one hand, and the participation of each of the alleged conspirators in it, on the other hand. For the purpose of establishing that there was a conspiracy of the kind alleged, evidence may properly be led which includes the oral statements of one or more of the other alleged conspirators made outside the presence of the accused. In Ahern the importance of the distinction was explained at p 93:
   

"In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.

Thus it was said in Tripodi, at 6, that proof of the crime of conspiracy

'may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment.'"

1. In our opinion the evidence provided by the tape recordings was admissible for the purpose of establishing that there was a combination between a number of people including Diamond, Tebbutt and Radecic, the object of which was to distribute by way of sale heroin obtained from a particular supplier to the clientele of Diamond and Tebbutt. The evidence was admissible not only to establish the bare fact of a combination of people in a common enterprise which had an illegal object, but to show the mode of operation and the extent of the common enterprise.

2. The admission of the tape recordings for this purpose did not, without more, allow the evidence to be used for the further purpose of proving against the appellant the truth of the oral statements made by the other alleged conspirators, for example to establish that the supplier to the common enterprise was "Dave", that a message had been sent to telepager 622214 at the times recorded, or that shortly thereafter, following an incoming telephone call to Batman Street, someone left the house (on occasions at a time which coincided closely with the appellant's presence near Batman Street) and on return said words which established that a further supply of heroin had been received.

3. The requirement that there be "reasonable evidence of the preconcert" of the appellant was one which arose for consideration in the circumstances of this case not as a pre-condition to the admission of the tape recordings for the purpose of establishing the existence of a conspiracy of the kind alleged, but as a pre-condition for the further use of that evidence as evidence to establish the truth of the oral statements of the other alleged conspirators against the appellant. It is to this question that the passage previously cited from Tripodi is directed. In Ahern the Court said at p 100:
   

"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." (Emphasis added)

1. Ahern holds that it is for the trial judge to determine whether "reasonable evidence" that the accused was a participant has been adduced so as to allow the evidence to be left to the jury, whose decision it ultimately is to decide whether both the existence of the conspiracy and the accused's participation therein are proved beyond reasonable doubt. In the instant case the decision in Ahern was not specifically drawn to the attention of the trial judge. Rather he was referred to the earlier decision of the Full Court of Victoria in R. v. Minuzzo and Williams (1984) VR 417 in support of the proposition that the evidence provided by the tape recordings of overt acts and oral statements of the other alleged participants in the common enterprise could only be used as evidence against the appellant to establish his participation in the common enterprise if there were "prima facie" evidence of that participation otherwise proved. The reference to R. v. Minuzzo and Williams led to extensive argument before the trial judge as to whether there was such a prima facie case, and he ruled that there was. In Ahern, the High Court preferred the words "reasonable evidence" to "a prima facie case" to describe the requisite standard of proof of participation. The Court said at p 100:
   

"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 is 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."

1. In the present instance no error flowed from counsel for the appellant urging before the trial judge the "prima facie case" test. We are satisfied that in substance his Honour considered the correct issue. Having made the ruling as to the admission of the evidence as evidence of the appellant's participation in a conspiracy of the kind alleged, his Honour correctly directed the jury that they had to be satisfied beyond reasonable doubt that there was a conspiracy as alleged, and that the appellant was a participant in it.

1. In deciding whether the Crown had adduced reasonable evidence sufficient to establish that the appellant was a participant in the conspiracy disclosed by the recorded acts and words of the other alleged conspirators (or as the trial judge was urged to do, in deciding if there were a prima facie case in this respect) it was proper, indeed necessary, for the trial judge to have regard to the nature of the conspiracy which had been disclosed, and to the mode of operation adopted in the implementation thereof. The appellant's contention that the decision should have been made by the trial judge without reference to the nature of the conspiracy as disclosed by the tape recordings is, in our opinion, erroneous. Without regard to details of the conspiracy alleged by the Crown, an evaluation of the significance of the other evidence led to establish the appellant's participation would be a barren and unrealistic exercise. The mode of operation of those involved in the conspiracy alleged is vital to the evaluation of the probative force of the items of evidence led for this purpose which are summarised above, and in particular to the probative value of the evidence that the appellant, for most of the time, was the person having actual possession of pager number 622214. When the items of evidence led by the Crown, apart from the tape recordings, are viewed against the mode of operation of the enterprise being conducted that evidence is particularly strong, and clearly meets the requirement of being "reasonable evidence" of participation by the appellant. In our opinion the submission of the appellant to the contrary fails.

2. In Pektas, Pektas, Ceylan and Mehmedoff (1988) 37 A Crim R 229 the members of the Court of Criminal Appeal in Victoria canvassed difficulties which they anticipated in the practical application of the Ahern principles in some cases, particularly where the issue whether there was a conspiracy on foot of the type alleged in the presentment is hotly contested. The instant case however is not one of that type. The fact of a conspiracy of the kind alleged by the Crown was established by evidence of the most cogent kind about which there was no real contest.

3. The second ground upon which the appellant challenges his conviction on the conspiracy count seeks to draw a parallel between the evidence at his trial, and that which was the subject of consideration in Trudgeon (1988) 39 A Crim R 252. In Trudgeon the conspiracy alleged was that the co-conspirator, Cheung, would supply Trudgeon with heroin and Trudgeon would sell it to others. As a matter of objective fact it was proved that Cheung sold and delivered to Trudgeon what they both thought was nine kilograms of heroin and received $35,000 which was apparently in full payment. The existence of the conspiracy fell to be inferred from this manifestation of a common intention that an unlawful act occur. The Court of Criminal Appeal held that the objective facts provided no evidence of any intention in Cheung that Trudgeon would on-sell the heroin to another person or persons. Whilst the amount and the price of the material made it highly probable that Trudgeon was buying it for the purposes of resale, it was held that a critical distinction existed between the entertainment by Cheung of an expectation that the heroin would be on-sold, on the one hand, and the making of an agreement between Cheung and Trudgeon in the sense of a manifestation of a common intention that that should occur. It was consistent with the facts that Cheung really could not have cared what Trudgeon did with the material, and was not a party to any agreement with Trudgeon about that matter: see p 257.

4. The appellant contends that the same distinction is crucial in the present case. It is submitted that the evidence is not capable of supporting a finding beyond reasonable doubt that the appellant was a party to an agreement for the supply of heroin by the other conspirators to other people. Rather, the evidence could at the most establish only that the appellant participated in an agreement to supply heroin to the other conspirators to do whatever they wished with it.

5. The facts of the present case are quite different from those in Trudgeon. Once the tape recordings were ruled admissible to prove the participation of the appellant in a conspiracy of the type alleged, the jury were entitled to have regard not only to the evidence, independent of the tape recordings, which provided the "reasonable evidence" on which that ruling was based, but to the evidence provided by the tape recordings as well. Once the tape recordings became available as evidence on the issue of the appellant's participation, the coincidence between messages despatched via pager 622214 for supplies, and the appellant's presence at or near Batman Street could leave no real doubt about his involvement in a conspiracy to supply heroin to Diamond and Tebbutt. The substantial remaining question is whether the evidence in its totality is capable of supporting a finding beyond reasonable doubt that the accused participated in that supply with the intention that the heroin, or some of it, would be supplied to other people. In our opinion it was open on the evidence for the jury, acting reasonably, to reach this conclusion having regard to the evidence of an established pattern of supply to users calling at Batman Street, the established procedure whereby those residing at Batman Street obtained supplies from the appellant as required, the frequency of those supplies, and the evidence provided partly by the appellant's memo book and partly by the conversations revealed by the tape recordings that the appellant extended credit to Diamond and Tebbutt. The established procedure for supply employed a code which led the appellant to telephone Batman Street in response to a telepage message. In the telephone conversations which then occurred, so it might reasonably be inferred, neither party to the conversation had need to spell out the purpose of the call, or to discuss quantities or price, or the location for delivery, because there was in place already a well-established arrangement. The tape recordings also reveal that the arrangement provided for those at Batman Street to communicate with the appellant by the telepager at any hour during the day up to 12 midnight. The tape recordings reveal that the standard quantity of material supplied by the appellant when a delivery was requested was about 3 grams at a cost of about $900. The frequency of deliveries and their value make it highly likely that at least a substantial part of each delivery was to be resold. The inference is clearly open that the appellant would not extend credit in the circumstances unless he intended the heroin to be resold thereby providing a source of money to repay him and to enable his profitable distribution through Batman Street to continue.

6. In the charge to the jury the learned trial judge emphasised to them that they had to be satisfied beyond reasonable doubt that the appellant was a party to an agreement that the heroin delivered to the occupants of Batman Street would be supplied by them to other people. His Honour directed them that an immediate expectation on the appellant's part that this would occur would not be enough. Unlike Trudgeon, the distinction between an expectation of this kind and proof that the appellant was a party to the agreement to supply to others was clearly explained to the jury.

7. As an alternative submission it was contended that the evidence as to the appellant being a party to such an agreement was so inadequate that the verdict was unsafe and dangerous. We are unable to agree. In our opinion there was ample evidence to support the conspiracy verdict.

8. The grounds of appeal which are based on Trudgeon fail.

9. The final challenge by the appellant contends that the learned trial judge erred in allowing the second count in the indictment to go to the jury, or alternatively in failing to direct them that the evidence provided by the tape recordings had been admitted for purposes limited to the first count and was not to be used in the second count which charged the substantive offence of possession for supply. This submission assumes that even if the evidence provided by the tape recordings of acts and declarations of the other conspirators made outside the presence of the appellant were admissible as to the truth thereof on the conspiracy count to prove his participation in a common enterprise with the object alleged, the evidence could not be used upon the second count as proof that the appellant was in possession of heroin found in his clothing at the time of his arrest for the purpose of supplying it to other people. This assumption is ill-founded. The rule that acts done and statements made by another person in the absence of the accused are admissible against the accused if done or made in furtherance of a common criminal purpose to which both are parties is the same whatever the charge. The principles which governed the admission of the tape recordings into evidence on count one applied also to count two: Ahern at p 100 and The Queen v. Corak and Palmer (1982) 30 SASR 404. Where the charge is one of conspiracy the evidence may be more readily admitted as combination is an element of the offence: Tripodi at p 6. Where only a substantive offence is charged the admission of the evidence is conditioned on there being reasonable evidence from which the accused's participation in the combination may be inferred, but once this threshold is passed, the evidence "may be used to prove, not the fact of participation in the combination, but the offence charged": Ahern p 100. That threshold was passed in the present case, and the evidence was available to prove both the object of the conspiracy and the purpose of the appellant's possession of the heroin.

10. There is no absolute rule that a count charging conspiracy may not be joined with a count charging a substantive offence constituted by one of the overt acts relied on as proof of the conspiracy, although in many circumstances it may be undesirable to do so as the combination of one or more conspiracy charges with one or more substantive charges may give rise to a very real risk that a jury will encounter difficulty in reasonably separating out or isolating evidence which is only admissible on one count from evidence which is only admissible on another: R. v. Griffiths and Anor (1966) 1 QB 589, Moore (1987) 25 A Crim R 302, Hurrey (1987) 29 A Crim R 42 and R. v. Hoar (1981) 148 CLR 32. However the present case is not one where complexities of the kind discussed in the cases cited was likely to arise, and significantly no application was made on the appellant's behalf to sever the two counts. Here the evidence admitted on the conspiracy charge, once the trial judge ruled that it was available to prove the participation of the appellant in the conspiracy alleged, was also admissible to prove the purpose of his possession of the heroin on 28 February 1988. The Crown case was that his possession was for the purpose of supply to other people in furtherance of the common enterprise. This being so, no direction was required that parts only of the evidence admitted on the conspiracy count could be used by the jury in relation to the other count. Counsel who appeared at the trial for the appellant apparently perceived no error in this aspect of the charge to the jury as no objection was made to the trial judge at the time.

11. The grounds of appeal relating to count two also fail.

12. There is one aspect of the evidence revealed by the tape recordings upon which we comment briefly as it was referred to in argument by counsel for the respondent. No ground of appeal alleges error in the admission of the evidence to which we refer. In accordance with the principles enunciated in Tripodi and Ahern, evidence of acts done and words uttered by a participant in a conspiracy outside the presence of the accused are admissible insofar as those acts and words take place in furtherance of the common enterprise. Words uttered which are not in furtherance of the common enterprise, but which constitute only a narrative account of past events ordinarily are not admissible against a party not present when the utterances occurred. In Tripodi at p 7 the Court said:
    

"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."

1. On an occasion on 25 February 1988 the conversations recorded between Diamond, Tebbutt and Radecic, shortly after Tebbutt had returned to Batman Street following an absence of a day or two whilst he attended a detoxification centre, proceeded as follows (omitting expletives and irrelevancies):
   "TEBBUTT How's Biso (business) been going?
   

DIAMOND Not bad.

TEBBUTT Remember you gotta give Dave 1800, OK? DIAMOND Yeah I know, he reminded me this afternoon. He was pretty good, he came up last night and he said oh if you got any hassles just ring me anytime day or night... TEBBUTT Your only going to be doing it for another two days.

DIAMOND Yeah I know...I'm going to have to make sure, at least I paid the rent and the phone bill today. TEBBUTT You did?

DIAMOND Yeah.

TEBBUTT Oh good on ya, you didn't lose any money with the dope?

DIAMOND Hey?

TEBBUTT You didn't lose any money with the dope? DIAMOND No, that batch, the one that you, just before you left, we made only 800 bucks on so we had to chuck a hundred in but then I made money on this... TEBBUTT So how much heroin have we sold today? DIAMOND Ah well, we got 3 grams last night, about 10.30. I think I sold 300 bucks worth last night and I sold the rest of it today and I got another 3 grams and sold that and this another 3 grams. I've sold about 300 out of that Mick. TEBBUTT How much money did you make today darling? DIAMOND Um profit or,...six...about 650 to 700. TEBBUTT Today, is that all.

DIAMOND Is that all]

TEBBUTT 650, 700 dollars.

DIAMOND Profit]

TEBBUTT Oh right."

1. This conversation provided information about the quantity and value of deliveries received from the appellant, and about the indebtedness of Diamond and Tebbutt to him. This evidence was the clearest (but not the only evidence in the tapes) on these matters which were relied on by the Crown to demonstrate the significance of the quantity of heroin in the possession of the appellant when he was arrested en route from his home to Batman Street shortly after a pager message. In the conversation Diamond was recounting past events, but in our opinion the evidence was nevertheless correctly admitted as her utterances were by way of a statement as to the present situation of their common enterprise made as part of its ongoing administration, and as a prelude to continuing with it.

2. In our opinion the appeals should be dismissed.