Italiano v The State of Western Australia
[2012] WASCA 260
•6 DECEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ITALIANO -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 260
CORAM: MARTIN CJ
PULLIN JA
MAZZA JA
HEARD: 2 JULY 2012
DELIVERED : 6 DECEMBER 2012
FILE NO/S: CACR 139 of 2011
BETWEEN: DOMENIC ITALIANO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 140 of 2011
BETWEEN :CAMERON ROBERT BARNES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
File No :IND 610 of 2010
Catchwords:
Criminal law - Appeal against conviction - Sell or supply a prohibited drug - Whether a miscarriage of justice arose by reason of inadmissible, irrelevant and prejudicial evidence - Whether trial judge made a wrong decision on a question of law by failing to direct the jury that evidence of out of court statements were inadmissible - Alleged breach of the rule in Browne v Dunn
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(c), s 30(4)
Result:
Appeals allowed
Category: B
Representation:
CACR 139 of 2011
Counsel:
Appellant: Mr D Grace QC
Respondent: Mr J McGrath SC & Mr M J NewtonPalmer
Solicitors:
Appellant: Alana Padmanabham Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
CACR 140 of 2011
Counsel:
Appellant: Mr S Vandongen SC
Respondent: Mr J McGrath SC & Mr M J NewtonPalmer
Solicitors:
Appellant: David Manera
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87
APC v The State of Western Australia [2012] WASCA 159
BJH v The State of Western Australia [2011] WASCA 4
Browne v Dunn (1893) 6 R 67 HL
K v The State of Western Australia [2010] WASCA 157
Marinovich v The Queen (1990) 46 A Crim R 282
Merrey v The State of Western Australia [2010] WASCA 62
Michaels v The State of Western Australia [2009] WASCA 174
Punevski v The Queen [2000] WASCA 71
R v Soma [2003] HCA 13; (2003) 212 CLR 299
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1
MARTIN CJ: Each of these appeals against conviction should be allowed, the conviction of each appellant quashed, and a retrial ordered for the reasons given by Mazza JA, with which I agree, save in respect of ground 1 in the Barnes appeal. I will, however, add some observations of my own in relation to the grounds of appeal relating to the inadmissible evidence led from Detective Shanahan.
The inadmissible evidence of Detective Shanahan
Any correlation between the evidence led from Detective Shanahan and the evidence properly admissible on a fair trial of each accused was almost entirely coincidental. Detective Shanahan was, of course, able to give evidence of his actions in relation to the interception of the appellant's telephone calls, and of his involvement in the search of Mr Barnes' vehicle and home. Further, in the absence of any dispute with respect to his qualifications, he was able to give expert evidence in relation to common characteristics of the trade in illegal drugs, particularly methylamphetamine, including its price, packaging, the tools and techniques commonly used in that trade, and of slang, jargon or terminology characteristic of that trade.
However, the great bulk of Detective Shanahan's evidence did not fall within these areas. In the main it related to his attempts to construe the telephone calls which were intercepted, and the inferences which he drew from those telephone calls. It seems from the way in which questions were occasionally put by the prosecutor, and the way in which answers were given by Detective Shanahan, that there was a perception to the effect that this course was justified on the basis that Detective Shanahan was qualified to give evidence with respect to techniques used by drug investigators, and of the conclusions properly drawn by an experienced drug investigator from the intercepted conversations (see for example, ts 1670 onwards). If there was such a perception on the part of either counsel or the trial judge, it is misconceived. The techniques used by drug investigators, and the conclusions drawn by drug investigators were irrelevant to any issue which the jury was required to determine.
The transcript of the evidence given by Detective Shanahan creates the impression that he was being used as a surrogate for the enunciation of the prosecution case with respect to the proper inferences to be drawn from the telephone intercept material, and that defence counsel regarded his cross examination as a means of contesting those inferences. Other appeals to this court have revealed a similar tendency in relation to evidence led from police officers with respect to telephone intercept material. If these cases are indicative of a general practice to this effect, it must cease. The inferences properly drawn from telephone intercept material are matters for the jury. To the extent that those inferences depend upon the use of ordinary language, the jury can and should be assisted by submissions from counsel. To the extent that an understanding of the terminology used by the participants in the telephone conversations depends upon specialised knowledge of particular practices, such as practices customarily used in the illegal drug trade, or upon slang or jargon customarily used in that trade, the jury can be assisted by evidence from an appropriately qualified expert with respect to those customs and usages. However, that is the extent of the expert evidence that can be given, and it is not for police officers to give evidence with respect to the construction which they would place upon particular conversations, or as to the conclusions which they would draw from a particular conversation.
In this case, the prosecutor conspicuously failed to appropriately control the evidence given by Detective Shanahan. As Mazza JA points out, much of the evidence which he gave was not responsive to the questions he was asked. The inadmissible evidence which he gave was extraordinarily prejudicial to each accused. Counsel for each accused inexplicably failed to object to the inadmissible evidence. Even if they perceived that there was some forensic purpose to be served by the failure to object, that perception was utterly misconceived, given the degree of prejudice suffered by each accused as a result of the inadmissible evidence given by Detective Shanahan.
Trial judges have an overriding duty to ensure that trials over which they preside are fair and are conducted according to law. On occasions, consistently with that duty, inadmissible evidence can be received where it is clear that it is being tendered with the express or implicit agreement of all parties and that the evidence serves some legitimate forensic purpose. This was not such a case. The bulk of the evidence given by Detective Shanahan was patently inadmissible and extremely prejudicial to each accused. In accordance with the overriding duty to which I have referred, the trial judge should have intervened to prevent the evidence from being led.
Ground 1 in the Barnes appeal
I agree with Pullin JA that it is unnecessary to determine ground 1 in the Barnes appeal, as our conclusion with respect to the inadmissibility of Detective Shanahan's evidence necessitates a retrial in any event.
However, it seems to me to be fairly arguable that counsel for Mr Barnes was on notice of the distinct possibility that it might be contended that his client had sold drugs to Mr Quintal, rather than Mr Italiano, prior to the closing address of counsel for Mr Italiano (see for example, ts 2026 ‑ 2034). It is also of some significance that Mr Quintal's evidence as to the limited role which he played was clear and unequivocal and was unlikely to have been given any differently even if it was put to him that he was in fact the purchaser of the drugs.
In all events, it is sufficient for present purposes to observe that it is unnecessary, in my view, to resolve the issues raised by ground 1 of the Barnes appeal.
PULLIN JA: I agree with Mazza JA's reasons save in relation to ground 1 of Barnes' appeal. That ground alleged that the trial judge made a wrong decision on a question of law by declining to discharge the jury when counsel for Barnes made an application for a discharge order. The application was made in the following circumstances. Counsel for Italiano opened Italiano's case and cross examined Quintal in a way which suggested that Italiano's case was the same as Barnes', that is, that Quintal supplied Barnes with a small amount of methylamphetamine and that the 2 ounces of the drug found in the car belonged to Quintal.
The appellant Barnes contends that it was not until Italiano's counsel made his closing address to the jury that it became known that Italiano's defence was that Barnes had supplied Quintal with the 2 ounces of methylamphetamine. Barnes' counsel applied for the jury to be discharged on the basis that Barnes had not been put on notice that Italiano would be alleging that Barnes had supplied Quintal with the drugs that were found by the police in the car. Ground 1 of Barnes' appeal alleges a breach of the rule in Browne v Dunn (1893) 6 R 67 HL. It is not necessary to reach a conclusion on this ground, because there will be a retrial. Barnes is now on notice that Italiano's case is that Barnes supplied Quintal.
I agree with the orders proposed by Mazza JA.
MAZZA JA: Domenic Italiano and Cameron Robert Barnes were charged as follows:
(1)On 31 July 2009 at South Perth Cameron Robert Barnes supplied a prohibited drug, namely methylamphetamine, to another.
(2)On the same date at Osborne Park Domenic Italiano had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
On 20 June 2011, after a 17 day trial before Eaton DCJ and a jury in the District Court, each appellant was convicted as charged. Each now appeals to this court against their conviction.
Overview of the facts
Between February 2009 and 31 July 2009, the Western Australian Police were lawfully intercepting Italiano's mobile telephone service and were monitoring and recording his telephone conversations and text messages. The State's case relied in large part, but not exclusively, on these intercepted communications which involved Italiano, Barnes, Angelo Rossi, Dan Rossi, Alan Macri, and between 23 July 2009 and 31 July 2009, Patrick Quintal. The State's case was that these communications revealed that Italiano and Barnes were drug traffickers and were organising a drug transaction on 31 July 2009.
On that day, the apartment block in South Perth at which Barnes lived was placed under surveillance. Police officers observed Italiano attend at this address in a Nissan Patrol being driven by Quintal.
On the State's case, Quintal waited in a public common area in the apartment block for Italiano who went upstairs to Barnes' apartment (ts 1455). There, it was alleged that Barnes supplied Italiano with approximately 56 g of methylamphetamine. The State alleged that Quintal, knowing that Italiano had possession of the drugs, then drove Italiano from the apartment block onto the Mitchell Freeway. On the Powis Street off ramp the vehicle was intercepted by the police (ts 956). A search revealed the drugs which Barnes had allegedly supplied in a package hidden in a hole in the glove box. Italiano was seated immediately in front of the glove box (ts 913). Originally, Italiano and Quintal were charged with possession of the 56 g of methylamphetamine with intent to sell or supply it to another. Prior to the trial before Eaton DCJ, Quintal pleaded guilty to this charge, on the basis that the drugs were Italiano's and that he had aided him to commit the offence by driving him to and from Barnes' apartment knowing Italiano was to be supplied the drugs which were found in the car. He gave an undertaking to give evidence at the appellants' trial. As a result of his promised cooperation, Quintal was sentenced to a suspended term of imprisonment.
Quintal testified that he and Italiano were users of methylamphetamine. He said that on occasions Italiano had supplied him with quantities of the drug. Quintal's evidence was that on 31 July 2009 he did not go to Barnes' apartment but waited in the common area. He said that when he realised his vehicle was being pulled over by the police, he told Italiano to throw the drugs out of the vehicle. According to Quintal, Italiano ignored this advice saying 'it'll be right' and stuffed the package containing the drugs into the glove box (ts 1473).
In addition to Quintal's evidence the State's case against the appellants comprised:
1.The intercepted telephone conversations and text messages. It was alleged that from these communications the jury could infer that Italiano and Barnes had discussed the purchase of the drugs in question and their cost. Further, they showed that Italiano had asked Quintal to drive him to Barnes' apartment on 31 July 2009 (ts 1168 ‑ 1170).
2.The evidence of Detective Shanahan. Detective Shanahan was one of the police officers involved in the investigation. He gave evidence that he had been monitoring the intercepted communications and on 31 July 2009, he was in touch with police officers in the field informing them of what was being said by the appellants. Detective Shanahan, as an experienced drug investigator also gave expert evidence about methylamphetamine, how it is sold, its packaging, its price and some of the commonly seen indicia of drug dealers. The State adduced other evidence from Detective Shanahan which is the subject of challenge in this appeal. I will describe this evidence later in these reasons.
3.The surveillance of Barnes' apartment block on 31 July 2009.
4.The discovery of approximately 56 g of methylamphetamine in Quintal's vehicle.
5.Forensic evidence which showed a close similarity between the paper towels which the drugs were wrapped in and the paper towels found at Barnes' apartment (ts 966, 979, 1220).
6.Items found during a search of Italiano's home including three implements used to smoke methylamphetamine (ts 1060, 1062, 1063), a small amount of a cutting agent (ts 1058, 1096) and surveillance equipment.
7.Items found during a search of Barnes' vehicle including the mobile telephone that was used by him in the intercepted communications with Italiano on 31 July 2009 (ts 1168 ‑ 1170).
8.Items found during a search of Barnes' apartment. These items included tick lists, two sets of scales with methylamphetamine on them, a small bag with traces of methylamphetamine and some plastic bags similar to one of the bags used to package the drugs found in Quintal's car. The police also found $20,700 in cash in a safe which the State alleged corresponded closely to its estimate of the cost of the methylamphetamine found in Quintal's vehicle (ts 1283).
9.Items found in a search of Quintal's house including scales with methylamphetamine on them (ts 1011), a taser disguised as a torch (ts 1007 ‑ 1008), surveillance equipment (ts 1015), and documents said to be drug tick lists (ts 1006 ‑1007).
10.DNA evidence, including testimony that Barnes could not be excluded as a contributor of DNA taken from the bag which contained the cash found in his apartment.
The grounds of appeal
Italiano's grounds of appeal are as follows:
1.A substantial miscarriage of justice arose by reason of the incompetence of trial counsel
Particulars
a.Failure to object to inadmissible, irrelevant and prejudicial evidence being given by the witness Shanahan and by eliciting inadmissible, irrelevant and prejudicial evidence in his cross examination of the witness Shanahan when the failure could not have been based upon any rational forensic decision.
b.Failure to put a number of significant propositions to two witnesses resulting in the Learned Trial Judge directing the jury in accordance with the principles enunciated in the case of Browne v Dunn adversely to the interests of the defence case.
c.Failure to object to the summing‑up of the Learned Trial Judge in relation to the requirement of a clear direction to ignore the inadmissible, irrelevant and prejudicial evidence given by the witness Shanahan
2.By reason of inadmissible, irrelevant and prejudicial evidence given by the witness Shanahan the Appellant did not have a fair trial in accordance with law and suffered a substantial miscarriage of justice.
3.The Learned Trial Judge erred in law by failing to:
a.Prevent the eliciting of inadmissible, irrelevant and prejudicial evidence from the witness Shanahan; and/or
b.Direct the jury adequately or at all to ignore the inadmissible, irrelevant and prejudicial evidence given by the witness Shanahan
thereby giving rise to a substantial miscarriage of justice.
Leave to appeal has been granted in respect of ground 2. The question of leave to appeal in respect of grounds 1 and 3 was referred to the hearing of the appeal.
In his oral submissions counsel for the appellant, Mr Grace QC conceded that ground 3 added nothing to ground 2 (appeal ts 14).
Barnes' grounds of appeal are as follows:
1.The learned trial Judge made a wrong decision on a question of law by declining to discharge the jury from giving its verdict on the basis of the failure of counsel for the accused, Domenic Italiano, to:
a.put to the appellant in cross examination the nature of the case on which he ultimately relied.
b.put to the appellant in cross examination the grounds upon which he ultimately invited the jury to disbelieve the appellant's evidence.
2.In the alternative to ground 1, there was a miscarriage of justice occasioned by the failure of counsel for the accused, Domenic Italiano, to:
a.put to the appellant in cross examination the nature of the case on which lie ultimately relied.
b.put to the appellant in cross examination the grounds upon which he ultimately invited the jury to disbelieve the appellant's evidence.
3.There was a miscarriage of justice occasioned by the introduction of inadmissible and materially prejudicial evidence that was given by Peter Gerard Shanahan at the appellant's trial, in circumstances in which is not open to infer that the appellant's counsel failed to object to the evidence in the furtherance of a forensic strategy.
Particulars
The inadmissible and materially prejudicial evidence comprised evidence of Shanahan's opinions about the proper interpretation to be given to a number of recorded telephone communications that had been intercepted under the authority of a warrant in respect of Italiano's mobile telephone.
4.The learned trial Judge made a wrong decision on a question of law by failing to direct the jury that evidence of out of court statements that were alleged to have been made by Domenic Italiano in the absence of the appellant were not admissible in the case against the appellant, or, alternatively, such failure occasioned a miscarriage of justice.
Leave to appeal has been given in respect of these grounds.
Before dealing with the grounds of appeal it is necessary to describe some parts of the trial.
The opening address on behalf of the State
The State prosecutor, Ms Austin, outlined the State's case in much the same terms as I described it earlier in these reasons. The prosecutor gave some prominence to the anticipated testimony of Quintal and to the intercepted telephone conversations and text messages. As to this material she said:
There won't just be evidence from Mr Quintal, and there won't just be phone calls played though. In this case, you'll hear some evidence from some expert police officers. They're expert witnesses because they are police officers who are people who have listened to telephone intercept material, who are expert drug investigators, who are people who are qualified to interpret how people who deal with drugs speak to each other on the phone and the sort of language they use. And just from the beginning, the State says to you that, as his honour said, approach the evidence with an open mind, because an expert witness will be testifying in this trial about the language that people who are trafficking in drugs use when they're talking to each other on the phone, about how they behave when they are doing drug deals, about whether or not a drug dealer or a person purchasing drugs for another person, for example, would take them to meet their supplier or whether they would go by themselves to purchase those drugs, because if you introduce your supplier to the person you are purchasing the drugs for, you might cut yourself out of the deal because they'll start dealing directly with each other and the middle man is gone (ts 914).
The 'expert witness' referred to by the prosecutor is Detective Senior Constable Shanahan.
The opening address on behalf of Italiano
At trial, Italiano was represented by Mr Margaretic.
In his opening address, Mr Margaretic told the jury that there had been a previous trial in which Mr Barnes and Mr Quintal, but not Mr Italiano were charged with offences in relation to the methylamphetamine found in Quintal's vehicle. Mr Margaretic told the jury that the trial 'did not conclude' (ts 925).
Mr Margaretic told the jury that at the earlier trial, the State's case was that Barnes supplied Quintal with the methylamphetamine and that Italiano had acted as a middle man (ts 925). Mr Margaretic asked the jury to note the difference between the State's position then and its position now. He rhetorically asked the jury why the State's position had changed. He suggested that it was because Quintal had done 'a deal' with the State (ts 926). He asserted that Quintal was a liar, who, in order to get a lesser sentence, was willing to falsely implicate Italiano and reduce his own role in the transaction.
Mr Margaretic told the jury that Italiano's case was that the drugs found in the car were not his and that he did not know they were there (ts 927). Mr Margaretic asserted that Quintal was a drug dealer and he suggested that the drugs found in the vehicle were Quintal's.
At no stage did Mr Margaretic state that it was part of his client's case that Barnes had supplied the drugs found in Quintal's vehicle.
The opening address on behalf of Barnes
At trial, Barnes was represented by Mr Skerritt.
In his opening address, Mr Skerritt told the jury that Barnes was a drug user who, on occasions, purchased drugs from Quintal. Mr Skerritt described Quintal as a drug dealer. Mr Skerritt said that, by giving evidence for the State, Quintal was trying to 'squirm his way out of any responsibility ... so ... he doesn't go to gaol' (ts 934 ‑ 935). Mr Skerritt did not identify with precision his client's defence, although the clear implication from what he told the jury was that Barnes had not supplied any methylamphetamine.
In respect of the intercepted communications he said this:
The police didn't see a drug deal and the police didn't tape it, didn't record it; it's mostly speculative. And what the police will come along and tell you is their interpretation of a lot of things like telephone intercepts and those types of things, but as I said before, ladies and gentleman, that the police are looking for something specific. They have what we call a confirmation bias that anything that confirms with their idea that this drug deal is going on is latched onto, but in my respectful submission, a lot of the evidence has been latched onto too hard and that the evidence is not indicative of my client being a drug dealer (ts 935).
The evidence of Detective Shanahan
Detective Shanahan's role in the investigation was to monitor the telephone and text communications which the police were intercepting. On 31 July 2009, in addition to monitoring the communications between Italiano, Barnes and Quintal he was also part of the team that searched Barnes' vehicle and home (ts 1666).
It was accepted both at trial and in this appeal that Detective Shanahan had expertise in the field of drug investigation.
He testified in an uncontroversial way about matters such as the quantities in which methylamphetamine were sold, its price at the relevant time, the way methylamphetamine is commonly packaged and some of the common indicia of drug dealing. The indicia he referred to were electronic scales, the presence of bags, a cutting agent, weapons, surveillance systems and cash.
The prosecutor led him one by one through various intercepted telephone conversations and text messages between 23 July 2009 and 31 July 2009. To the extent that he testified as to the meaning of some of the terminology used in those communications, which the State alleged was code, Detective Shanahan's evidence was unobjectionable. However, his examination in chief on the intercepted communications strayed well beyond the bounds of permissible expert testimony.
Detective Shanahan's examination in chief commenced at 2.16 pm on 7 June 2011 and was not concluded until 2.31 pm on 8 June 2011. The testimony is extraordinary for how much inadmissible opinion evidence was adduced which was prejudicial to each appellant. Equally as extraordinary was the failure of defence counsel to object to it.
The forensic technique frequently adopted by the prosecutor was to elicit comment from the witness of 'a drug investigator's perspective' of the significance of a particular intercepted communication of series of communications. This request frequently met with a long and uncontrolled commentary in which the witness informed the jury as to how the investigation proceeded, the opinions, beliefs and theories of the investigators and his own insights into the roles he believed the appellants were playing and what was developing between the appellants and Quintal. He tended to deliver speeches that were unresponsive to what he was asked. Those speeches had the character of a prosecutor's closing address. Although there were times when his Honour sought to exercise control over the witness, he was, more often than not, allowed to testify in the way he did. A few examples will suffice.
At one point, in the examination in chief, the prosecutor asked this question:
In relation to the business of drug dealing, is there a particular reason why someone might - who is going to purchase a prohibited drug or sell a prohibited drug to someone and need to go somewhere to do that, require someone to drive them to a certain place as opposed to driving themselves?‑‑‑ (ts 1696).
Detective Shanahan's response is as follows:
By all means. Okay. Drivers are very common in ‑ in the drug business. And ‑ and ‑ and the reasons why is that removes risk or mitigates risk. How I get ‑ well, I guess to be ‑ be ‑ I guess complete in what I ‑ what I say, you have your manufacturers of drugs up the top or with people who organise the manufacture or importation, you have ‑ and then you have your drug users down the bottom. And in between you have different layers, the dealers. Some people may ‑ at the top may, yeah, organise a cook for a couple of kilograms and then it comes down to pounds and ounces and then out to eight balls and then down to, you know, grams, half grams where it's actually used on the streets. Okay. And interspersed in those levels are people that are designed to remove the risk. A drug mule is a ‑ is a perfect example of someone who's there to remove the risk. If I want to bring drugs in from Sydney I'm not going to bring them in myself. Like, I'm going to pay someone who has obviously knowledge of what's happening because they've got to carry the drugs themselves. Although, in saying that, you could use a legitimate courier and you don't have to declare what's in that box or what's in that suitcase. But generally, a drug mule will bring those drugs in, they know very little about what's happening, because, of course, you're not going to give away your methodologies or what you do, it's ‑ as an example it's go to this hotel and then walk up and meet me on the corner and tell me the room number and I'll arrange the rest. You don't tell, you know, your drug mule. But ‑ but that person just minimises the risk for me because I don't have to bring the drugs across the Nullarbor, I have to fly them in, train ‑ I don't have to worry about it. I don't even have to go to a room and get that, I then use somebody else to go and get those drugs, in which to minimise the risk to my ‑ risk of apprehension of myself. Now, what I just said to you there, is just one way in which it can be done. It can be done many, many ways. The drivers are used exactly the same. In the sense that if I need to hire a car ‑ sorry, if I need to get from point A to point B and I'm in possession of drugs, if I'm the only person in that car and it's my car, as a police officer, I stop you and I find those drugs, you're getting charged. But if somebody else is in that car or a number of people are in that car and it's not my car or it's a hire car and I can't establish whose drugs they are, in fact, you know, there's ‑ there's no other information available to me as an investigator, no one is getting charged. So ‑ so the use of drivers is significant. Again, when you're conducting an investigation and you see, you know, somebody wanting a ride, regardless of whether the person has got a licence or not, that's ‑ that's the interest to us. All of a sudden we start putting who's who in the zoo and who ‑ which role people are playing in this particular enterprise. So drivers are ‑ drivers minimise the risk of a ‑ of a ‑ a principal player getting apprehended in the possession of drugs. When you think about it, if it's a hire car, or it's not my car and they're in the boot, well, I've never looked in the boot, it's a mate ‑ it's his all right and I've just jumped in and I've got no idea what's going on. So drivers are very, very common, extremely common (ts 1696 ‑ 1697).
Later an intercepted telephone call between Barnes and Italiano which occurred at approximately 1.05 pm on 31 July 2009 (CSN 3678) is played to the jury. Some of the conversation is in code. Italiano says to Barnes at one point:
All right. Um, I was going to, um, come down and, ah, - with someone that wants to get something - have some house - like, ah, see what you can do for like, some plans or something, see if you've got some (indistinct)? (Italiano blue/green appeal book page 180).
The prosecutor then asked:
Now, Detective, this phone call's at 13.05.40 from Mr Italiano to Mr Barnes on 31 July 2009. It's five past one, approximately, in the afternoon. It's about a little over a minute after Mr Italiano's rung Mr Quintal. Before I talk to you about that, is there anything in this phone call that's of significance to you as a drug investigator, and was it significant to the Organised Crime Squad of the day of 31 July?‑‑‑ (ts 1727).
Detective Shanahan's response is as follows:
Yeah, look, it was, and it actually confused the situation somewhat, because up until now, and I guess with what I've been ‑ you know, my evidence state has been we're, you know, we're listening to people, we're watching people, and we're putting ‑ we're trying to establish who's who in the zoo, whose role it is, and up until this point in time, yes, whilst Mr Quintal's trying to raise money we had Mr Quintal, I guess, firmly as a person who drives Mr ‑ and I think it's been established early in the piece (indistinct) will drive Mr Italiano around. But then this call comes in, as you say, and the time's important, the ‑ the sequence. You've got ‑ so we've got 13.04.14. So what've we got ‑ 46 seconds there, so 86 seconds later, that's from the start of that first phone call, too, mind you, so it's probably only seconds later, Mr Italiano jumps on the phone to Mr Barnes and let's just take him literally. I'm not going to ‑ there's no ‑ no point reading ‑ I'm not going to ready anything into anything, but let's just take this literally. And he says:
AUSTIN, MS [sic - Detective Shanahan continues]: I was going to come down with someone that wants to get something. Now, if we want to reconfirm the roles that we're attributing to ‑ to ‑ to different players in this ‑ this ‑ this enterprise, okay, Mr Italiano was bringing someone ‑ someone to get something off Mr Barnes. So whatever it is Mr Barnes has got, whatever, it is that they're after. Couple with other calls, Mr Barnes is a drug dealer. He's got whatever it is the rest are chasing. Okay. And that's just taking it literally. Then Mr Italiano goes on: Like, see what you can do for, like, some plans or something. Now, sorry - sorry, go back. He says: Have some house, pause, like, see what you can do for, like, some plans or something. See if you've got something ‑ that's indistinct. Now, house plans are paper. Any reference to paper, whether it be ‑ and house plans actually quite common, interestingly enough, but textbooks (ts 1727 ‑ 1728).
At another point in the examination in chief, four telephone calls from Mr Italiano at approximately 5.00 pm on 31 July 2009 were played to the jury. The following exchange then took place between the prosecutor and Detective Shanahan:
AUSTIN, MS: Now, Detective, that group of phone calls, can you say anything about those phone calls?‑‑‑Although the ‑ the interaction with Mr Rossi is just typical of what we've seen throughout the investigation. Prior to catching up with Mr Barnes, there's always a ‑ there's always contact Mr Rossi.
Okay?‑‑‑And that's ‑ and again, we're just seeing the same thing here again
Okay?‑‑‑And it's a ‑ and I ‑ and I guess from a ‑ an investigation evolving, as far as we're ‑ it's evolving the way that we ‑ we ‑ we believe it would. That's ‑ that's probably all I can say.
That ‑ if you just have a look at call sequence number 3715, the transcript for that at 17.03.00 on 31 July 2009?‑‑‑Yes. Three ‑ 3715?
3715?‑‑‑Yep, yep.
Is that we ‑ phone call that you're talking about when you say there's interaction with Mr - - - ?‑‑‑No, I'm referring to the attempts as well.
Okay?‑‑‑So obviously Mr Italiano is ‑ is ‑ what we've seen he's told Mr Barnes, 'Yep, fine, coming now'. And now he's in touch with ‑ with Mr Italiano ‑ sorry, Mr Rossi again. And as we've seen, you know, in every sort of sequence of phone calls is that Mr Rossi is always ‑ when there's been interaction with Mr Barnes, then ‑ between Mr Italiano and Mr Barnes, then there's interaction between Mr Italiano and Mr Rossi. So that's important to us because it tells us that things are evolving in much the same fashion as they have previously. Those attempts and also actually when Mr Rossi has ‑ and indeed when they have actually spoken. So ‑ and obviously we've got Mr Italiano actually going to Mr Rossi's house, so to catch up with him.
Then there's contact with some other people who aren't identified, and can you comment on any of those phone calls? Are there any significance to Mr Italiano ringing people asking them to come past. That ‑ ‑ ‑ ?‑‑‑Look, I mean, they are what they are. He's contacting other people and asked them to come and see him it's.
Now, does that have any significance in relation to his going anywhere later in the day?‑‑It's - it's - it's significant to a drug investigator because what we're (ts 1745 ‑ 1746).
Further examples can be found in examination in chief at ts 1700, 1714, 1722, 1733, 1747 ‑ 1748, 1752 ‑ 1753 and 1756 ‑ 1757.
The witness's non‑responsive style continued in cross examination.
At one point Mr Margaretic sought to ask Detective Shanahan about a telephone conversation between Italiano and Quintal on 29 July 2009 at just past midnight (CSN 351 green appeal book pages 155 ‑ 157). Part of that conversation is in these terms:
ITALIANO: I was just ringing I was just about to go to bed, fucking didn't hear from you so I didn't know what's going on.
QUINTAL: Still trying to get money together.
ITALIANO: How you going to do that at home?
QUINTAL: Fucking ...
ITALIANO: Are you waiting for people?
QUINTAL: Yeah.
The exchange between Mr Margaretic and Detective Shanahan in relation to this intercept reads:
MARGARETIC, MR: How you going to do that at home? And he says: Are you waiting for people? And Mr Quintal says: Yeah. Now, would you agree with me that people refer to more than one person?‑‑‑I would agree with that.
And would you agree with me that the tenor of that call is that Mr Quintal is waiting to get money from people who owe him money?‑‑‑Does it actually say that, though? Does he actually say:
MARGARETIC, MR [sic - Detective Shanahan continues]: I'm waiting to get money from people that owe me money? 'or, because he's just ‑ and correct me if I'm ‑ I'm ‑ there may be something I'm actually missing, but what I'm reading here is he's got: Just trying to get the money together. Then he says, and obviously then we've got where Mr Italiano says: I'll get Chopper to come and see you and get the money out. And then he ‑ and this goes: I'll see what I can get now. Now, so, look, I ‑ I ‑ but at no stage, and correct me if I'm wrong, but at no stage there does Mr Quintal say ‑ and we go back, sorry ‑ go back to 3563. I don't have page numbers so we'll go back to CSN 3563. And we heard Mr Quintal saying ‑ ‑ ‑
MARGARETIC, MR: Can I just ask one question?
EATON DCJ: You'd better let him finish ‑ finish the answer (ts 1786 ‑ 1787).
The pattern continued in Mr Skerritt's cross examination of Detective Shanahan. At one point, Mr Skerritt referred to Detective Shanahan's evidence to the effect that the intercepted telephone conversations showed interaction between Italiano, Barnes and one of the Rossi's. Detective Shanahan agreed that he had testified to that effect. Mr Skerritt then put to the witness that there was no evidence of any direct communication between Mr Rossi and Mr Barnes, a proposition with which Detective Shanahan agreed. The following exchange then took place:
SKERRITT, MR: So how then could you say that all three parties are interacting, if Mr Rossi and Mr Barnes have no contact?‑‑‑We have ‑ we have - because we have Mr Barnes. No, what ‑ what I said is the contact between Mr Barnes and Mr Italiano, sends Mr Italiano into a panic where he contacts Mr - Mr Rossi. So all three, in my opinion, are ‑ I know ‑ I know the technical points you're going to bring up, and you're probably right, okay? But all three of them are involved in the one enterprise, that's my evidence (ts 1828).
In a re examination that could be characterised as wide ranging, the prosecutor directed Detective Shanahan's attention to an intercepted telephone conversation between Italiano and Quintal on 30 July 2009 at approximately 6.00 pm (CSN 3657). After playing the audio of the conversation, the prosecutor asked Detective Shanahan whether he heard it properly. After answering in the affirmative he said:
Well, it is of interest, just ‑ I mean I ‑ I ‑ I mentioned before in my evidence that I reviewed all the calls, and ‑ obviously to come up with an opinion as to ‑ as to these people are involved in the distribution of drugs. And 3653 is just another call that ‑ that ‑ than enhances that opinion and where I believe Mr Italiano was speaking to Mr Quintal where he says, asks the question (ts 1859).
The defence cases
Italiano elected not to give evidence or adduce evidence in his defence.
Barnes elected to testify. Barnes denied being a drug dealer but admitted that he was a user of methylamphetamine.
Barnes testified that he, as a franchisor, had sold Italiano a tanning salon franchise and that they had become friends. His evidence was that on 31 July 2009, Italiano brought Quintal (whom he knew by the nickname 'Wazza') to his apartment. Barnes said that Italiano went out onto the balcony of his apartment and had a smoke. Meanwhile, Quintal produced two plastic clipseal bags and proceeded to sell Barnes $250 worth of methylamphetamine which he (Barnes) weighed out on some scales he owned (ts 1972). After this, Italiano came inside and the three men had a conversation. Shortly after, Italiano and Quintal left the apartment.
With respect the intercepted communications, Barnes said that prior to 31 July 2009, he and Italiano were in regular contact over matters connected with Italiano's tanning salon business. Barnes explained many of the conversations which the State alleged were incriminating as merely conversations associated with his business. However, he agreed that some of the communications used coded language and concerned the purchase of methylamphetamine from Quintal (see, for example, ts 2010 and ts 2017 ‑ 2018).
Barnes said that the money found by the police in his safe belonged, in part, to his then girlfriend and that the rest had been legitimately acquired through his work and business interests (ts 2020).
Barnes was shown what the State had alleged to be tick lists in a diary found at his apartment. He said that the entries were not related to drugs (ts 2022 ‑ 2025).
Towards the end of Barnes' examination in chief, and in the absence of the jury, Mr Margaretic clarified with the learned trial judge that the State's case was that Barnes supplied Italiano and that Italiano was charged with possession as a principle offender. He expressed the concern that if the jury thought that Barnes had supplied Quintal it might be said by the State that Italiano was guilty on the basis that he aided Quintal to possess the drugs. The prosecutor told his Honour that the State's case was in substance narrowly framed and if the jury found that Barnes had supplied Quintal and not Italiano the verdict in respect of each charge would be not guilty (ts 2033 ‑ 2035).
Mr Margaretic's cross examination of Barnes was very brief. It occupies less than one page of transcript. It is as follows:
MARGARETIC, MR: Yes, very briefly, your Honour. Mr Barnes, you're aware that I act for Mr Italiano?‑‑‑Yes, I do.
And so you're under no misapprehension that I do not act in your interests?‑‑‑Correct.
On your evidence to Mr - in-chief, in answers to Mr Skerritt's questions, please correct me if I'm wrong, in the period 23 to 30 July, this is the day before Mr Quintal came to your apartment the second time, you had met with Mr Italiano on ‑ on my calculations between five and seven occasions?‑‑‑Correct.
And on each of those occasions you met with Mr Italiano, is it not the case that you met with him alone ?‑‑‑This is true.
Now, its not my concern whether you're a drug dealer or not, Mr Barnes. But would you agree with the proposition that if you were going to sell two ounces of amphetamines to Mr Italiano, you had the opportunity to do that on at least seven occasions in the days before he came to your apartment with Mr Quintal. If that were ‑ ‑ ‑?‑‑‑Yeah. Yeah, sure.
Because would you agree with the proposition that if you were going to sell drugs to Mr Italiano you didn't need Mr Quinlan there, did you?‑‑‑No, that'd make sense.
And that's because of the fact, it is, is it not, that you never sold two ounces of methylamphetamines to Mr Italiano?‑‑‑Correct.
And your business with Mr Quintal was your business with Mr Quintal, correct?‑‑‑Absolutely.
MARGARETIC MR: I've no further questions (ts 2039).
At no time did Mr Margaretic suggest to Barnes that he had sold or supplied Quintal with the methylamphetamine found in the vehicle. No such proposition had been put by Mr Margaretic to Quintal in his lengthy cross examination of him. In fact, Mr Margaretic put to Quintal a position consistent with Barnes' case that in truth Quintal had sold a small amount of methylamphetamine to Barnes (ts 1558).
However, towards the end of his examination in chief, the following exchange took place between Barnes and Mr Skerritt:
Okay. All right. Now, Mr Barnes, just to wrap up your evidence, you've heard the allegation that Mr Quintal came to your apartment on 31 July 2009?‑‑‑Yep.
And it's alleged that you sold Mr Quintal some drugs. Is that true?‑‑‑No, not at all.
Okay. Have you ever sold drugs?‑‑‑No (ts 2038).
This exchange is curious because no allegation had been made in the presence of the jury that Barnes had sold Quintal drugs, although, the possibility had been raised by Mr Margaretic when he sought to clarify, in the absence of the jury, the State's case.
At the hearing of this appeal, Mr Vandongen SC on behalf of Barnes suggested that Mr Skerritt may have made an error when he referred to Quintal in this exchange and that in fact he meant Italiano. I think there is some force in Mr Vandongen's submission. The exchange occurred at the conclusion of examination in chief when counsel frequently put to an accused the allegation against him or her seeking to elicit a denial to the charge. Further an allegation that Barnes had sold drugs to Quintal was not something that had been put to the jury at that time by anyone. Thus the questions seem to be out of context. Of course Barnes answered the questions and did not seek clarification as to whether counsel was referring to Quintal or Italiano. It may be he did not correct counsel because he understood counsel to be referring to Italiano.
Defence counsel's closing addresses
The closing address on behalf of Barnes
Mr Skerritt submitted that Barnes was not a drug dealer. He asserted that Quintal was the true drug dealer and on 31 July 2009 Quintal had sold Barnes 'a couple of points' of methylamphetamine for $250. Barnes had not, as alleged by the State, supplied Italiano with 56 g of methylamphetamine.
Mr Skerritt submitted that Quintal was a liar who had given evidence for the State in order to receive a more lenient sentence.
Mr Skerritt asserted that the intercepted telephone conversations were 'ambiguous' (ts 2556).
In substance, Mr Skerritt submitted that the intercepted communications which had been tendered in the trial were small in number and did not represent the true nature of the relationship between the appellants.
Mr Skerritt alleged that Mr Shanahan had adopted a 'blinkered approach' (ts 2562) to the evidence in that he was unaware that Barnes and Italiano were friends and had an association through the tanning salon business. He also observed that only Italiano's mobile phone had been monitored and that other phone calls which had not emanated from Italiano's mobile telephone or their face to face meetings had not been recorded. Consistently with his opening address, he alleged that the police investigation was guilty of 'confirmation bias'.
Mr Skerritt urged the jury to accept that Barnes was telling the truth in his sworn testimony.
Mr Skerritt did not embark upon any analysis of Detective Shanahan's evidence to show bias. His submissions concentrated on the argument that the jury did not have all the information with respect to the relationship between Barnes and Italiano. If Detective Shanahan's evidence was allowed in, as part of a forensic plan by Mr Skerritt, there is nothing in the closing address to indicate it.
The closing address on behalf of Italiano
Mr Margaretic was the last counsel to address the jury in closing. Contrary to the way in which Italiano's case had been put in opening, Mr Margaretic, in effect, submitted that the jury should find that Barnes had supplied Quintal with the 56 g of methylamphetamine and that Italiano's role had been to facilitate the transaction for which he was paid a 'spotters fee' of $1000. He expressed it in this way:
And, with the greatest of respect to Mr Barnes and my learned friend Mr Skerritt, who made submissions to you yesterday, I have great difficulty in accepting some of the interpretation of the calls that's been placed on them by Mr Barnes. I don't think - that's possible that it happened, but I think - when you look at the evidence independently, I don't think that is what happened ... now, this is just my opinion and I'll show you why I have come to this conclusion. And I think you might find that my conclusion is quite compelling. I think that Mr Barnes possibly did sell two ounces of methylamphetamine, but not to Mr Italiano; to Mr Quintal. And that Mr Italiano, based on all of the evidence that I'm going to go through with you, never possessed those drugs. He was simply in some way facilitating the transaction, putting the two parties in contact with each other. Why? Because, I will submit to you, he was the one who was the drug addict at the time, and he was the one who, ladies and gentleman, I would submit to you, was trying to get a spotter's fee (ts 2579).
Later, he said to the jury:
[I]f I was you - but I'm not, but if I was - I'd completely disregard what Mr Quintal says, I'd completely disregard what Mr Barnes says (ts 2593).
Mr Margaretic told the jury that the intercepted telephone conversations 'say what they mean' and had 'been confirmed by Detective Shanahan' (ts 2577).
This was not the only reference to Detective Shanahan's evidence in Mr Margaretic's closing address (see ts 2583, 2585, 2587 ‑ 2588, 2590). Some of these references are uncontroversial aspects of Detective Shanahan's evidence, for example, the common use by drug dealers of electronic scales in the context of the submission that Mr Quintal was a drug dealer (ts 2587) and that drug dealers split larger quantities of methylamphetamine into smaller quantities. Mr Margaretic submitted that there was no evidence Italiano had any indicia of drug dealing (ts 2590). Mr Margaretic referred to evidence that Detective Shanahan had given that drug dealers should go to university and study 'debt collection 101' (ts 2583). He also referred to evidence that Detective Shanahan gave about a police car pulling into Mr Italiano's driveway which had nothing to do with their drug investigation (ts 2585) and a portion of Detective Shanahan's evidence where he agreed that based on what others had told him he told Mr Barnes that more than one person had been seen going upstairs to Barnes' apartment (ts 2588).
Apart from the very general submissions that the telephone intercepts 'say what they mean' and that had been confirmed by Detective Shanahan, Mr Margaretic did not seek to take any forensic advantage from Detective Shanahan's evidence.
Counsel for Barnes applies to discharge the jury
After Mr Margaretic's closing address, Mr Skerritt applied to the learned trial judge to discharge the jury from giving a verdict in respect of Barnes. Mr Skerritt submitted that Mr Margaretic had breached the rule in Browne v Dunn (1893) 6 R 67 HL, by failing to put to Barnes that he had supplied Quintal with 56 g of methylamphetamine and that Barnes had not been given any opportunity to deal with these allegations (ts 2374). Mr Skerritt submitted that what occurred was unfair to his client and this unfairness was, in effect, compounded by the fact that it was impractical to recall Barnes and that he had no opportunity to reply to Mr Margaretic's submissions (ts 2375).
The learned trial judge declined to discharge the jury saying that he could give directions that would overcome any unfairness to Barnes (ts 2375).
The learned trial judge's directions as to the breach of the rule in Browne v Dunn
The learned trial judge's initial direction on Mr Margaretic's failure to put to Quintal and Barnes that Quintal had purchased 2 ounces of methylamphetamine from Barnes was in these terms:
Counsel for Domenic Italiano, Mr Margaretic, in his closing address suggested to you that you should completely disregard what both Patrick Quintal and Cameron Barnes said in their evidence and concentrate on the telephone intercept material. He suggested to you that Domenic Italiano's interest in what occurred on the night of 31 July 2009 is clearly set out in call sequence number 3679. Domenic Italiano, he suggested, wasn't getting two ounces of methylamphetamine from anyone. He was getting $1,000 from Patrick Quintal who was purchasing two ounces of methylamphetamine from Cameron Barnes. The $1,000 to be paid as a spotter's fee for lining up the deal. What's been suggested by counsel for Domenic Italiano in his final address to you was, so far as I can tell, not put to either Patrick Quintal or Cameron Barnes in cross examination by him of those witnesses. What was put to Patrick Quintal by Mr Margaretic was a scenario that, on the face of it, accorded with Mr Barnes's evidence as to what happened on the night in question. That being that he'd gone to the apartment, that is, that Patrick Quintal had gone to the apartment and sold to Cameron Barnes a small quantity of methylamphetamine for $250. What was not put to Patrick Quintal in cross examination by Mr Margaretic was that he had purchased the two ounces of methylamphetamine from Cameron Barnes at the apartment in circumstances where Domenic Italiano would benefit only to the extent of $1,000 by way of a spotter's fee. In cross examination of Cameron Barnes counsel for Domenic Italiano, Mr Margaretic, put to him that he'd never sold two ounces of methylamphetamine to Domenic Italiano. Cameron Barnes agreed with that. He was not challenged on his evidence that he'd only purchased a small amount of methylamphetamine from Patrick Quintal and yet in his final address to the jury, Mr Margaretic suggested that neither Cameron Barnes nor Patrick Quintal should be believed and that you, the jury, should accept that what in fact happened was that in the South Perth apartment, on 31 July 2009, Cameron Barnes sold two ounces of methylamphetamine to Patrick Quintal and that Domenic Italiano would benefit only to the extent of receiving a spotter's fee from Cameron Barnes of $1,000 (ts 2475).
Mr Margaretic took exception to this direction. Its effect, he said, was to indicate to the jury that they should 'set aside' his submissions on Italiano's behalf (ts 2476). Mr Skerritt said that he had addressed his Honour on the issue of Browne v Dunn and had nothing to add (ts 2477). The prosecutor joined with Mr Margaretic in seeking a further direction on the point (ts 2478).
His Honour gave the jury further directions as follows:
Now, what I said to you a little while ago was a reference to that rule of conduct or practice. It's actually referred to by lawyers as the rule in Browne v Dunn, which is a somewhat ancient case. As I say, it is a rule of conduct or practice; it's not a rule of law. And it's a rule that attempts to ensure that witnesses are afforded fairness when they're giving their evidence. Now, the reason why I brought the various matters to you, that I did before you went back into the jury room, was not to suggest that to you for one moment that you should ignore what Mr Margaretic has said to you in his final speech; far from it.
Counsel in their final speeches are entitled to sum up, as I said to you earlier, their perspective on the evidence and what you should make of it. And to that extent Mr Margaretic has done that. So I'm not suggesting by reason of the suggested breach of the rule in Browne v Dunn that you should ignore what he said. That's not the case at all. You should take into account what he said. Nor am I suggesting that you should draw any inference adverse to Mr Italiano by the apparent breach of the rule in Browne v Dunn. It does seem to me that if the rule had been adhered to then certain matters, which are probably obvious to you now, should have been put both to Mr Quintal and Mr Barnes. Particularly in circumstances where, in general terms, Mr Margaretic says well you should not believe either of them. However, there we are. I'm not suggesting that you should draw any inference adverse to Mr Italiano by reason of what's been said, or, as I say, that you ignore what Mr Margaretic has said to you (ts 2486 ‑ 2487).
Did the appellants suffer a miscarriage of justice by reason of Detective Shanahan's evidence?
It is convenient to deal with the issue of whether the appellant suffered a miscarriage of justice by reason of Detective Shanahan's evidence. This is a central argument in both appeals. It is raised in ground 2 of Italiano's appeal and ground 3 of Barnes' appeal.
It was through Detective Shanahan that the respondent adduced the intercepted telephone conversations and text messages. It is not disputed that he had experience in the field of drug investigation. As a result, he could give expert opinion evidence about such matters as the characteristics of methylamphetamine, its price, how it is packaged and the terminology including any code or slang, used by those who participate in the drug trade: Marinovich v The Queen (1990) 46 A Crim R 282, 301.
Detective Shanahan was also an active participant in the investigation and could give evidence about what he did on 31 July 2009 and in the preceding days. None of this evidence is controversial in this appeal.
The controversy in this appeal concerns the evidence given by Detective Shanahan that I have described between [38] ‑ [50] of these reasons.
It is common ground that this evidence was inadmissible. However, it was not objected to by either defence counsel. This is not, then, an appeal based on a wrong decision on a question of law by the trial judge: s 30(3)(b) of the Criminal Appeals Act 2004 (WA); R v Soma [2003] HCA 13; (2003) 212 CLR 299 [42]. For the appellants to succeed before this court, each needs to establish that the admissible evidence gave rise to a miscarriage of justice: s 30(3)(c) of the Criminal Appeals Act. If a miscarriage of justice is established, the State has not sought to invoke the proviso in s 30(4) of the Criminal Appeals Act.
It is difficult to establish a miscarriage of justice where evidence is admitted without objection. This is because, generally, an accused is bound by the way defence counsel conducted the trial: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8], [24] ‑ [33], [43], [102] ‑ [104].
When it is alleged that evidence adduced without objection produced a miscarriage of justice, at least two matters must be considered. First, was the evidence admissible? Second, if it was inadmissible, was the failure to object for rational forensic reasons? See APC v The State of Western Australia [2012] WASCA 159 [82].
In this case the answer to the first question is straight forward. Detective Shanahan's evidence, as the parties agree, was inadmissible. In short, he gave irrelevant opinion evidence.
The answer to the second question is not quite as straight forward.
The submissions of Mr Grace QC on behalf of Italiano and Mr Vandongen SC on behalf of Barnes were, on this point, essentially the same. They submitted that no counsel acting rationally would have allowed Detective Shanahan to give such inadmissible evidence and, they assert, such highly prejudicial evidence.
Mr McGrath SC for the respondent accepted that the evidence should not have been led by the prosecutor. As Mr McGrath put it in oral argument:
A prudent prosecutor wouldn't have come within a bull's roar of leading this evidence (appeal ts 79).
Nevertheless, he submitted that there was a rational forensic reason for allowing the State to adduce the inadmissible evidence because it demonstrated the case put on behalf of each of the appellants at trial, that the police investigation was biased.
In relation to the question of whether there were rational forensic reasons for Mr Margaretic's failure to object to the evidence of Detective Shanahan, Italiano sought, at the outset of the appeal to rely on affidavits sworn on his behalf by his instructing solicitor at trial, Alana Mariamma Padmanabham, and an affidavit sworn by Italiano's wife, Svetlana Spaseska. In response, the State filed an affidavit by Mr Margaretic. Ultimately, the parties expressly declined to rely upon them and they were not admitted into evidence in this appeal (appeal ts 77). This is because an appellate court does not examine whether a decision taken by an accused's counsel at trial was, in fact, taken for the purpose of obtaining a forensic advantage. Rather, an appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character: BJH v The State of Western Australia [2011] WASCA 4 [21].
Reading Detective Shanahan's evidence as a whole, one is immediately struck by the volume of inadmissible evidence he gave and by how extraordinarily prejudicial it was to each appellant. Detective Shanahan was impermissibly allowed to comment, with little or no limitation, on the intercepted communications which were central to the State's case against each appellant. The prejudicial effect of this was enormous. On an objective analysis, any tactical decision to allow the State to adduce this evidence could not be reasonably viewed as rational.
Even if there was some forensic advantage in Detective Shanahan's evidence, the advantage was slight in comparison with its inadmissible and highly prejudicial nature. Gaudron J in TKWJ contemplated such a situation and concluded that there may nevertheless be a miscarriage of justice. Her Honour said:
As already indicated, if there is a defect or irregularity in the trial, the fact that counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice [28]. (citation omitted)
The clear conclusion that I have reached is that despite the fact that all counsel in the trial could be regarded as experienced, none of them seemed to appreciate that much of Detective Shanahan's evidence was inadmissible. I have come to this conclusion because it is inconceivable that a prosecutor would even attempt to lead the evidence unless he or she thought it was admissible. The absence of objection by defence counsel in this case is more likely explained by the failure on their part to appreciate its inadmissibility as opposed to some deliberate forensic strategy. In this light, defence submissions alleging bias on the part of Detective Shanahan might well have been made in answer to evidence which was assumed to be admissible.
In my opinion, the admission of Detective Shanahan's evidence was a material irregularity in the trial. It cannot be explained after objective analysis by a rational forensic decision made by counsel. The evidence was of a highly prejudicial nature. There is a significant possibility that the irregularity affected the outcome of the trial. Each appellant has established that by reason of the inadmissible evidence of Detective Shanahan a miscarriage of justice has occurred. I would uphold ground 2 of Italiano's appeal and ground 3 of Barnes' appeal. As the State did not seek to invoke the proviso, the appropriate course is to order a re‑trial.
I wish to make it clear that I regard this case as exceptional. It should be seen as one very much confined to its facts. The case in no way diminishes the general position that an accused will be bound by the way his or her counsel conducted the trial.
It is convenient to next deal with ground 4 of Barnes' appeal which raises an issue that will be relevant to any re‑trial.
Did the learned trial judge err in failing to direct the jury that certain out of court statements made by Italiano were not admissible against Barnes?
This ground of appeal concerns evidence that Quintal gave about conversations he had with Italiano in the absence of Barnes that took place on 30 and 31 July 2009.
Quintal testified that on 30 July 2009 Italiano told him that 'he's going to see a mate tomorrow who's - who's got something and asked if I'd give him a lift there' (ts 1440). Quintal said that he understood this conversation to mean that he and Italiano were going to 'score' some methylamphetamine and that Italiano would 'sort me out' meaning that Quintal would get 'something' for driving Italiano.
Later in his examination in chief Quintal expanded on this conversation saying that Italiano told him 'we were going to see a mate that had something'. Quintal explained that the 'something' he referred to was drugs (ts 1447).
Quintal also testified that on 31 July 2009 while on their way to Barnes' apartment the only conversation he had proceeded along these lines:
I asked him what he was getting and he just said a couple (ts 1454).
When he was asked what he understood 'a couple' to mean he replied 'possibly 2 ounces' (ts 1454).
Mr Vandongen submitted that the evidence of these conversations was hearsay as against Barnes and was inadmissible in his case. Mr Vandongen submitted that none of the recognised exceptions to the rule against hearsay applied so as to render the evidence admissible against Barnes.
Mr Vandongen accepted that Barnes' trial counsel made no objection to the evidence. He submitted that the failure to object could not have been to gain a forensic advantage.
Mr Vandongen's submission was that if the evidence of the conversations was inadmissible against Barnes the learned trial judge was obliged to point this out to the jury: The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 [56] ‑ [57].
The respondent submitted that the evidence of Quintal was admissible against Barnes pursuant to the 'co conspirator's rule'. The effect of that rule is that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others despite their absence. The rationale behind the rule is that the combination implies an authority in each to act or speak on behalf of the other: Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, 7; Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87, 92 ‑ 93; Michaels v The State of Western Australia [2009] WASCA 174 [23].
Two things must be established before the conduct is admissible against an accused who was not present. First there must be evidence that the combination was for an unlawful purpose of the same general character as the offence charged. Second, there must be evidence that the accused was a participant in the alleged combination. That evidence must be independent, that is, other than the evidence in question: Punevski v The Queen [2000] WASCA 71 [38] ‑ [40].
I accept the respondent's submission that there was ample independent evidence apart from the impugned evidence that Barnes and Italiano had been, in the days leading up to 31 July 2009, engaged in a common unlawful purpose which involved Barnes selling or supplying methylamphetamine to Italiano. The respondent in its written submissions refers to a substantial number of intercepted telephone conversations which took place between the appellants on 26 ‑ 31 July 2009 inclusive, the content of which shows very clearly that the two men had come to an arrangement by which Barnes was to sell drugs to Italiano.
Having regard to these intercepted telephone conversations there was independent evidence of a combination for the unlawful purpose of buying and selling methylamphetamine and that Barnes was a participant in it. Accordingly, the statements made by Italiano in his conversations with Quintal were admissible against Barnes.
I would dismiss ground 4 of Barnes' appeal.
The remaining grounds of appeal
I now turn to the remaining grounds of appeal.
It is, strictly speaking, unnecessary to decide them. As there will be a re‑trial there is nothing to be gained by dealing with particulars (a) and (c) of ground 1 in Italiano's appeal and I decline to do so.
I will however deal with particular (b) in ground 1 of Italiano's appeal and ground 1 of Barnes' appeal. In broad terms these grounds raise the alleged failure by Italiano's trial counsel to comply with the rule in Browne v Dunn and any consequences that flowed from that failure.
There is no need to canvass the rule in Browne v Dunn as it applies to criminal proceedings. This was recently done in Merrey v The State of Western Australia [2010] WASCA 62 [8] ‑ [18] and in K v The State of Western Australia [2010] WASCA 157 [27] ‑ [34], [90] ‑ [95].
Although there is, as far as I am aware, no decision in Australia on the point, I agree with the learned author of Cross on Evidence (8th ed) [17435] that the rule in Browne v Dunn
applies equally to counsel for one defendant who proposes to suggest that another defendant is not telling the truth as it does to counsel for parties on the opposite side of the record to the party calling the witness.
Accordingly, Mr Margaretic should have put to Barnes in cross examination that he (Barnes) had supplied Quintal with the 2 ounces of methylamphetamine. Mr Margaretic also should have put that proposition to Quintal in cross examination. I do not regard the exchange between Mr Skerritt and Barnes at [60] as absolving Mr Margaretic of that obligation.
The point raised in particular (b) of ground 1 of Italiano's appeal is that Mr Margaretic's failure to comply with the rule in Browne v Dunn produced a miscarriage of justice because it led to his Honour giving the directions he did on Mr Margaretic's failure to comply with the rule.
I do not accept this proposition. When read as a whole, and particularly having regard to his Honour's re‑direction, Italiano suffered no disadvantage because of those directions. His Honour made it perfectly clear that they should not ignore what Mr Margaretic had said or drawn any adverse inference against Italiano because of Mr Margaretic's failure to cross examine Quintal and Barnes on the issue. Particular (b) of ground 1 in Italiano's appeal has not been made out.
I now turn to ground 1 of Barnes' appeal.
It is clear that Italiano's defence as expressed by his counsel changed during the course of the trial. Based on the way Mr Margaretic opened Italiano's case and his cross examination of Quintal, it appeared that Italiano's case was the same as Barnes, that is, Quintal supplied Barnes with a small amount of methylamphetamine and that the 2 ounces of the drug found in the car belonged to Quintal.
It was not until Mr Margaretic's closing address that it became known that Italiano's defence was that Barnes had supplied Quintal with the 2 ounces of methylamphetamine. It may be reasonably inferred that Mr Margaretic made the decision to change tack when it was confirmed that the jury would be directed that if it found that Barnes had supplied Quintal and not Italiano the verdict in respect of each charge would be not guilty. However, Mr Margaretic did not put Barnes on notice that he would be alleging that Barnes had supplied Quintal with the drugs that were ultimately found by the police in the car.
Of course, by the time Mr Margaretic addressed the jury, Mr Skerritt had completed his closing address. He was unable to answer or in any way deal with Mr Margaretic's arguments. What occurred, was, in my opinion, unfair to Barnes.
It is understandable that Mr Skerritt applied to discharge the jury from returning a verdict in respect of Barnes. His Honour said that any unfairness could be remedied by direction. However, his Honour did not give the jury any directions which specifically dealt with the impact on Barnes of Mr Margaretic's failure to comply with the rule in Browne v Dunn by not putting to Barnes that he had supplied Quintal with the drugs nor did his Honour say anything designed to remedy the unfairness to Barnes caused by Mr Margaretic's closing address.
I would have upheld ground 1 of Barnes' appeal.
Conclusion
By reason of the inadmissible evidence of Detective Shanahan each appellant's appeal must be allowed. I would make the following orders in relation to each appeal:
1.The appeal is allowed.
2.The conviction is set aside.
3.The appellant is to be retried.
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