Michael Teague v The Commonwealth Director of Public Prosecutions
[2025] VSCA 70
•11 April 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0202 |
| MICHAEL TEAGUE[1] | Applicant |
| v | |
| THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
| S EAPCR 2024 0203 | |
[1]In order not to prejudice the administration of justice, a pseudonym has been used in place of the name of the applicants and the reasons have been prepared in a form which omits identifying details.
| CHARLES DALEY1 | Applicant |
| v | |
| THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
| S EAPCR 2024 0213 |
| THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| MICHAEL TEAGUE AND CHARLES DALEY | Respondents |
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 March 2025 |
| DATE OF JUDGMENT: | 11 April 2025 |
| MEDIUM NEURTAL CITATION: | [2025] VSCA 70 |
| JUDGMENTS APPEALED FROM: | DPP (Cth) v [Teague] & [Daley] [Nos 4 and 5] (County Court of Victoria, 8–9 October 2024 and 22 October 2024, Judge Hawkins). |
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CRIMINAL LAW – Interlocutory appeal – Conspiracy to import commercial quantity of border controlled drug – Nine ‘dry run’ consignments with consignment 10 containing 111 kg of methamphetamine – ‘Cloning methodology’ used in consignments – Whether consignments 1 to 9 irrelevant – Whether cloning methodology capable of being used as evidence of conspiracy – Significant evidence of both applicants’ participation in conspiracy –Ahern/Tripoldi ‘reasonable evidence’ test satisfied – Leave to appeal refused.
Criminal Code Act 1995 (Cth) ss 11.5(2)(b)-(c); Evidence Act 2008 s 137, considered.
DPP (Cth) v Kola (2024) 418 ALR 176, considered; Ahern v The Queen (1988) 165 CLR 87; Tripodi v The Queen (1961) 104 CLR 1, discussed; Moore (a pseudonym v The King) (2024) 419 ALR 169, applied.
CRIMINAL LAW – Interlocutory appeal – Evidence of ‘cloning methodology’ and ‘dry run’ consignments – Whether probative value of evidence outweighed risk of unfair prejudice – High probative value of evidence – No innocent explanation – Does not invite unfair speculation – Leave to appeal refused.
Damoun v The Queen [2015] NSWCCA 109; Standen v The Queen (2015) 253 A Crim R 301, considered.
CRIMINAL LAW – Interlocutory appeal – Cash totalling $1.474 million and $132,190 found in relation to applicants 1 and 2 respectively – Whether cash capable of being used as evidence of conspiracy – ‘Accoutrements of crime’ support inference of conspiracy – Cash is circumstantial evidence of ongoing business to traffick methamphetamine – Leave to appeal refused.
R v Falzon (2018) 264 CLR 361, discussed; Sultana v The Queen (1994) 74 A Crim R 27, considered.
CRIMINAL LAW – Interlocutory appeal – Six phone calls regarding transportation of consignment 10 – Alleged to be Teague’s voice – Whether Detective’s voice identification evidence was admissible as lay opinion evidence – If all or majority of voice recordings played to jury, Detective will be in no better position than jury to compare Teague’s voice with recorded voice – Leave to appeal granted – Appeal allowed.
Evidence Act 2008, s 78, discussed.
Kheir v The Queen (2014) 43 VR 308; Tran & Chang v The Queen [2016] VSCA 79, discussed; R v Smith (2001) 206 CLR 650, distinguished.
CRIMINAL LAW – Interlocutory appeal – One conspiracy charge and two proceeds of crime charges – Whether joinder of charges permissible – Evidence of cash material fact to primary charge of conspiracy – Proceeds of crime charges subsidiary to conspiracy charge – Offences founded on same material facts – Related offences – Leave to appeal granted – Appeal allowed.
Criminal Procedure Act2009, sch 1 cl 5, s 3, discussed.
R v Barrell and Wilson (1979) 69 Cr App Rep 250; R v Reid [1999] 2 VR 605; discussed; Fleming (a pseudonym) v The Queen [2021] VSCA 206; R vFalzon (2018) 264 CLR 361; R v McLean (2000) 2 VR 118; White (a pseudonym) v The King [2022] VSCA 278, considered.
CRIMINAL LAW – Interlocutory appeal – One conspiracy charge and two proceeds of crime charges – Whether accused’s right to fair trial compromised by joinder – Judge’s obiter remarks do not constitute interlocutory decision – Ground 2 incompetent.
R v McLean (2000) 2 VR 118, referred to.
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| Counsel | |||
| Applicant (Teague): | Ms J Condon KC | ||
| Applicant (Daley): | Dr G Boas with Dr EHR Kelly | ||
| Respondent: | Mr OP Holdenson KC with Mr S Ginsbourg and Ms M Cananzi | ||
Solicitors | |||
| Applicant (Teague): | Kiki Kyriacou Lawyers | ||
| Applicant (Daley): | Emma Turnbull Lawyers | ||
| Respondent: | Commonwealth Director of Public Prosecutions | ||
TABLE OF CONTENTS
PART A:. THE GROUNDS OF APPEAL
Teague — grounds of appeal
Daley — grounds of appeal
The cross-appeal
The prosecution case
PART B:. TEAGUE’S GROUNDS 1–3 AND DALEY’S GROUNDS 1–2
Applicant’s submissions — cloning
Applicant’s submissions — consignments 1–9
Director’s submissions — cloning and the consignments
Consideration — Teague’s grounds 1–3 and Daley’s grounds 1–2
Reasonable evidence of Teague’s participation in the [alleged] conspiracy
Teague — unfair prejudice and probative value (s 137 of the Act)
Daley — reasonable evidence of participation
Daley — unfair prejudice
Conclusion — cloning and C1–C9 admissibility arguments
PART C:. CASH AND OTHER EVIDENCE – TEAGUE’S GROUND 4 AND DALEY’S GROUND 3
Submissions — cash and other evidence
Consideratation – cash and other evidence
PART D:. TEAGUE’S GROUND 5 — VOICE IDENTIFICATION
Submissions — Voice identification
Consideration — Voice identification
PART E:. THE CROSS-APPEAL
The judge’s reasons
The DPP submissions
Teague’s submissions
Daley’s submissions
Consideration — the cross-appeal
Joinder
Severance of charges 2 and 3 from charge 1
PART F:.. CONCLUSION
PRIEST JA
T FORREST JA:
‘Michael Teague’ and ‘Charles Daley’ (‘the applicants’), are to face trial in the County Court, both charged with conspiracy to import a commercial quantity of a border-controlled drug contrary to sections 11.5(1) and 307.1(1) of the Criminal Code (Cth) (charge 1).[2] In an earlier indictment, the applicants were also charged with dealing with proceeds of indictable crime (charges 2 and 3).[3]
[2]Criminal Code1995 (Cth) ss 11.5(1), 307(1).
[3]Contrary to Criminal Code1995 (Cth) ss 400.3(1), 404.4(1). These provisions respectively relate to the proceeds in crime where the value is $1,000,000 or more (against Teague), or $100,000 or more (against Daley).
The applicants seek leave to appeal an interlocutory decision (Ruling No 5) made by the trial judge in the course of preliminary argument.
That ruling permitted evidence to be led in the trial that concerned:
(a)nine previous consignments of a broadly similar nature to that of consignment 10 (‘C10’) in which a large quantity of methamphetamine was detected;
(b)the methodology allegedly employed by unknown co-conspirators to facilitate the importation of consignments 1–10. This is described in evidence and in these reasons as the ‘cloning’ methodology;
(c)various alleged accoutrements of a drug trafficking business, including cash amounts of $1,474,864.55 (Teague) and $132,190 (Daley);
(d)voice identification, purportedly of a voice in a series of incriminating telephone calls, alleged to be that of Teague.
PART A:THE GROUNDS OF APPEAL
Teague’s proposed grounds cover all four sub-paragraphs set out immediately above. Daley’s proposed grounds cover sub-paragraphs (a), (b) and (c) above. We provide the proposed grounds in full below.
Teague — grounds of appeal
Ground 1: Her Honour erred in ruling evidence of consignments 1 to 9 was reasonably capable of being used as evidence in support of charge 1, and accordingly, relevant as to whether the offending alleged in charge 1 occurred.
Ground 2: Further and alternatively to Ground 1, Her Honour erred in ruling the probative value of the evidence of consignments 1 to 9 outweighed the danger of unfair prejudice for the purposes of s 137 of the Evidence Act 2008 (Vic).
Particulars:
(1)The unfair prejudice with respect to consignments 1 to 4 arises due to lack of evidence as to whether those consignments contained border-controlled drugs.
(2)The unfair prejudice with respect to consignment 5 arises by virtue of the fact that the consignment was intercepted by Malaysian authorities, yet there is no evidence of what was seized. The Crown is not in a position to allege either that consignment 5 was a dry run, or that it contained a commercial quantity of border-controlled drugs.
(3)The unfair prejudice with respect to consignment 6 arises by virtue of the fact that traces of methamphetamine were located in the consignment, but there is no evidence the consignment ever contained a commercial quantity of methamphetamine, let alone at the time of importation.
(4)The unfair prejudice with respect to consignments 7 [to] 9 arises by virtue of the fact that the allegation these consignments were ‘dry run’ importations pre-supposes criminality and inverts the burden of proof
Ground 3: Her Honour erred in ruling the evidence of the cloning methodology is admissible.
Particulars:
(1)Her Honour erred in finding the evidence of the cloning methodology was reasonably capable of being used as evidence in support of charge 1, and accordingly, relevant as to whether the offending alleged in charge 1 occurred.
(2)Her Honour erred in finding the probative value of the cloning methodology outweighed the danger of unfair prejudice for the purposes of s 137 of the Evidence Act.
Ground 4: Her Honour erred in ruling cash and various other alleged accoutrements of drug trafficking located during the execution of search warrants of properties and a vehicle connected to [Teague] are admissible.
Particulars
(1)This ground relates to $1,474,864.55 AUD, together with various credit cards, SIM cards, mobile phones, vehicle registration plates and a cash counting machine located during the execution of search warrants at properties and a vehicle connected with [Teague].
(2)Her Honour erred in finding the evidence of those items was relevant.
(3)Further and alternatively, Her Honour erred in finding the probative value of the evidence of those items outweighed the danger of unfair prejudice for the purposes of s 137 of the Evidence Act.
Ground 5: Her Honour erred in ruling the voice identification evidence of Zahan Shafeeg is admissible.
Particulars:
(1)Her Honour erred in finding the voice identification evidence of Zahan Shafeeg was relevant.
(2)Further and alternatively, Her Honour erred in finding the probative value of the voice identification evidence of Zahan Shafeeg outweighed the danger of unfair prejudice for the purposes of s 137 of the Evidence Act.
Daley — grounds of appeal
Ground 1: The learned trial judge erred in ruling that evidence of the alleged ‘cloning methodology’ was admissible in that:
(a)it could rationally affect the assessment of the probability of a fact in issue;
(b)its probative value outweighed the danger of unfair prejudice;
(c)the ‘cloning methodology’ was not impermissible coincidence reasoning.
Ground 2: The learned trial judge erred in ruling that evidence of ‘consignments 1 – 9’ was admissible in that:
(a)it could rationally affect the assessment of the probability of a fact in issue;
(b)its probative value outweighed the danger of unfair prejudice.
Ground 3: The learned trial judge erred in ruling that evidence of cash in the amount of $132,190 discovered at the Applicant’s premises was admissible in that:
(a)it could rationally affect the assessment of the probability of a fact in issue;
(b)its probative value outweighed the danger of unfair prejudice;
(c)it was a ‘logical accoutrement of [the] business of the [alleged] conspiracy’.[4]
[4]Prior to the appeal hearing and during oral submissions, Daley’s counsel submitted they would not press this sub-ground 1(c).
It is apparent that, although expressed differently as between Teague and Daley, their proposed grounds of appeal concerning the nine consignments and cloning cover the same territory and we shall consider them together. We shall consider the accoutrements of a drug business and voice identification grounds (discrete to Teague) separately.
The cross-appeal
The Director of Public Prosecutions (Cth) (‘the Director’), who is the respondent to Daley and Teague’s applications, has sought leave to appeal with respect to another of the trial judge’s pre-trial rulings, in which, on 14 October 2024, she determined that charge 1 could not be tried jointly with charges 2 and 3 (Ruling No 4). The Director asserts (among other things) that the trial judge proceeded on an incorrect understanding of the prosecution case and that the evidence relevant to proof of charges 2 and 3 was cross-admissible with charges 1 and 2.
The Director’s proposed grounds of appeal are expressed as follows:
Ground 1: The learned trial judge erred in determining that clause 5(1) of Schedule 1 of the Act did not permit the joinder of charge 1 with charges 2 and 3 on the indictment dated 23 September 2024.
Particulars
The learned trial judge erred in determining that charge 1 was not ‘founded on same facts’ as charges 2 and 3 with the consequence that the charges were not ‘related offences’ as defined in section 3 of the Act.
Ground 2: The learned trial judge erred in determining that an order pursuant to section 193(1) of the Act for severance of charges 2 and 3 from charge 1 should be made in the event that, contrary to Ruling #4, clause 5(1) of Schedule 1 permitted joinder of the charges.
Particulars
The learned trial judge erred in determining that the accused’s right to a fair trial would be compromised by the retention of charge 1 together with charges 2 and 3 in the same indictment even in the event that, as the learned trial judge subsequently ruled, the evidence supporting charge 1 was cross-admissible with the evidence supporting charges 2 and 3.
The Director required an extension of time within which to file a notice of application for leave to appeal against Ruling No 4. Since, at the hearing of the applications in this Court, an objection to the extension of time was not pressed, we granted it.
The prosecution case
It is necessary to set out the prosecution case on the conspiracy charge in some detail. For these purposes we have drawn upon:
(a)the Further amended summary of prosecution opening for trial, dated 9 August 2024 (‘Prosecution opening’);
(b)Particulars of charge 1, dated 9 August 2024 (‘Particulars’);
(c)Indictment (Cth), dated 25 October 2024 (‘Indictment’); and largely upon
(d)Director’s summary of contentions prepared for this interlocutory appeal, dated 9 December 2024 (‘Director’s contentions’).
The applicants are charged that between 20 April 2021 and 17 November 2021 they conspired with each other, ‘RT’[5] and unknown others at Ravenhall, Victoria, and elsewhere to import a commercial quantity of methamphetamine contrary to sections 11.5(1) and 307(1) of the Criminal Code (Cth).[6] Further particulars of the charge specify that the conspiracy concerned an agreement to import multiple consignments that contained commercial quantities of methamphetamine using a methodology described in those particulars as cloning.[7] Citing R v Shepherd[8] as authority, the Director’s contentions state the conspiracy charge is ‘… framed to give effect to the well recognised purpose of the offence to expose the organisational framework of ongoing criminal activity by individuals acting in combination’.
[5]A pseudonym.
[6]Criminal Code (Cth) ss 11.5(1) and 307(1).
[7]Particulars of charge 1, dated 9 August 2024, [5].
[8]R v Shepherd (1988) 94 FLR 55, 62 (Street CJ), 64 (Lee J) cited in DPP (Cth) v Knopp (A pseudonym) (2023) 73 VR 73; [2023] VSCA 315, [50]–[51].
The prosecution relies on evidence of a number of consignments, each declared to be of commercial equipment weighing at least 200 kg which it says the conspirators imported, or attempted to import, into Australia in furtherance of the conspiracy. Each consignment was to be by air, and each was camouflaged as a legitimate commercial consignment by the use of a methodology given the short-hand appellation, ‘cloning’.
Cloning, in this context, involved conspirators impersonating representatives of legitimate local businesses in order to facilitate the importation of ostensibly unremarkable commercial equipment within which may sometimes (but not always) be secreted large quantities of methamphetamine. Transport and logistics companies were engaged by the largely unknown conspirators using emails that falsely represented that they were from the legitimate company whose identity had been appropriated by the conspirators. Those transport and logistics companies were engaged to effect the importations.
Between 20 April 2021 and 31 September 2021 ten consignments, utilising four cloned companies, were either imported, or attempted to be imported into Australia in furtherance of the conspiracy.[9] The table below has been extracted from the Director’s contentions:
[9]Director’s contentions, [5].
Consignment number
Arrival date
Cloned company consignee
Examined by law enforcement?
Evidence of contents upon examination
1
20 April 2021
ICE[10]
No.
N/A.
2
4 May 2021
ICE
No.
N/A.
3
30 June 2021
ICE
No.
N/A.
4
14 June 2021
ICE
No.
N/A.
5
N/A[11]
ICE
No evidence of examination.
N/A.
6
31 August 2021
KEA[12]
No.
Recovered remnants bore traces of methamphetamine.
7
30 September 2021
B & S[13]
Yes, by ABF.
Did not contain drugs.
8
8 October 2021
Shakra[14]
Yes, by ABF.
Did not contain drugs.
9
14 October 2021
B & S
Yes, by ABF.
Did not contain drugs.
10
31 September 2021
KEA
Yes, in Canada (and then substituted).
Found on examination to contain 111 kg of methamphetamine.
[10]International Catering Company Pty Ltd.
[11]This consignment was shipped from Malaysia on or about 16 August 2021 and was destined for Australia, but did not arrive in this country.
[12]Kitchen Equipment Australia Pty Ltd.
[13]B & S Commercial Kitchens Pty Ltd.
[14]Shakra Group Pty Ltd.
A number of observations may be made of these consignments. On the prosecution case:
(a)Consignment number 1 (‘C1’) to consignment number 4 (‘C4’) were not examined by law enforcement officers;
(b)Consignment number 5 (‘C5’) was intercepted in Malaysia on about 16 August 2021. It was destined for Australia but did not arrive in this country;
(c)Consignment number 10 (‘C10’) was intercepted in Canada while en route to Australia. Concealed within a modified internal cavity of a Hobart brand commercial dough mixer (‘Hobart mixer’) was 111 kgs of methamphetamine. Canadian authorities substituted an inert substance for the methamphetamine;
(d)C1 to C10 each employed the cloning methodology;
(e)Consignment number 6 (‘C6’) which arrived in Australia on 31 August 2021 involved the importation of another ‘Hobart’ brand commercial dough mixer. Its internal cavity was modified in a manner similar to the C10 Hobart mixer. It was discovered on the day of Teague’s arrest at premises in outer Melbourne connected with him. Upon examination, positive traces of methamphetamine were found;
(f)C6 was imported by the same cloned company as C10;
(g)C1 to consignment number 5 (‘C5’) accrued costs paid by a debit card in the name of ‘Derek Singh’, a stolen identity. At the time of the arrests of both applicants (17 November 2021) police located a debit card, in the name of Derek Singh, under the back verandah of Teague’s premises;
(h)Teague allegedly participated in six telephone calls with transport and logistics company representatives using telco services subscribed in false names. In each call, it is alleged that he assumed the identity of ‘Mohsen’, the first name of a director of the legitimate consignee company (KEA). In the first of the 10 calls, he allegedly paid transportation costs using a MasterCard in the stolen identity of ‘Caleb Newton’. The account for this card previously was used to pay costs for C6. Detective Senior Constable Zahan Shafeeg (‘Detective Shafeeg’) purportedly identifies Teague’s voice[15] in all 10 calls relating to C10. This is the subject of Teague’s ground 5: the jury will be invited to make the comparison between what is demonstrably Teague’s voice and the six ‘Mohsen’ calls. In the event we have excluded this voice identification evidence of Detective Shafeeg, but the jury will still be invited to make the voice comparison itself;
(i)C10 was transported to an address in Ravenhall. Teague had previously negotiated a lease of this premises using an apparently innocent business pretext;
(j)Daley operated a logistics and transport business. He was involved in the transportation of all consignments bar C2. He exchanged emails and received payments from falsely registered bank accounts;
(k)The prosecution case against Daley is that (at some stage) he knew these communications and payments were a sham. This can be inferred from, amongst other things, evidence relative to his conduct in relation to C10;
(l)Daley arranged and undertook transportation of C10 and its storage. A hidden camera in Daley’s factory is said by the prosecution to show Daley inspecting the modified internal cavity of the Hobart mixer and operating a radio frequency scanner close by. This is said to be for the purpose of detecting whether the consignment was being monitored by authorities;
(m)Police surveillance and video evidence is said by the prosecution to establish that two days before his arrest on 17 November 2021, Daley and RT transported C10 to a remote location in central Victoria where he and RT abandoned it after discovering that the methamphetamine had been substituted. Authorities had applied forensic tracing powder to packages of the substituted drugs in C10. Two pairs of gloves located in a vehicle used by Daley after the C10 abandonment bore Daley’s DNA and the aforementioned forensic tracing powder.
[15]Captured in various telephone calls.
The above is a bald summary of the consignments and the alleged activities of the applicants in respect of them. Additionally, the prosecution case on the conspiracy charge relies on the applicants’ possession of large sums of cash. At Teague’s residences and in his vehicle, police recovered a total of $1,474,864.55. At Daley’s residence, police located $132,190. Police also recovered three mobile telephones and a laptop computer said to be used by Teague. The prosecution contend these are the accoutrements of a drug trafficking and/or importation business.
The prosecution contends that the evidence concerning the cash and accoutrements is circumstantial evidence that the accused were engaged in the business of importing methamphetamine, and therefore were parties to the charged conspiracy. It relies on the reasoning in R v Falzon[16] in that respect. When the cash evidence is considered, along with all other evidence in the case, the prosecution contends that it supports the inference ‘that the accused had profited from the earlier, successful importation of methamphetamines, as in C6, and that the accused kept a readily available means of funding the significant ongoing costs of the business’.[17]
[16](2018) 264 CLR 361; [2018] HCA 29.
[17]Director’s contentions, [12].
The prosecution contended both before the judge and in this Court that the evidence of cloning set out above and the evidence surrounding C1 to C9 is relevant in four ways:
(a)proof of the existence, nature and scope of the conspiracy;
(b)proof of each accused’s participation in the conspiracy;
(c)the accused and other parties to the conspiracy intended that an offence would be committed pursuant to the agreement for the purpose of s 11.5(2)(b) of the Criminal Code (Cth);[18]
(d)the evidence relating to C1 to C9 is relevant to prove that the parties to the conspiracy committed a multitude of overt acts for the purposes of s 11.5(2)(c) of the Criminal Code (Cth).[19]
[18]This provision requires that, inter alia, proof of guilt involves that the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement: Criminal Code (Cth) s 11.5(2)(b).
[19]Criminal Code (Cth) s 11.5(2)(c).
In Ruling No 5 the judge ruled that evidence relating to:
(a)the cloning methodology;
(b)consignments 1–9; and
(c)the accoutrements of a drug trafficking business (primarily cash);
were admissible in support of charge 1.
It is unnecessary to rehearse the judge’s reasons for these conclusions in any detail. As this is an interlocutory appeal its focus is the correctness of these determinations, rather than whether they were reasonably open to the judge.[20] In Moore (a pseudonym v The Queen),[21] the High Court held that the review of a decision under s 137 of the Evidence Act 2008 (‘the Act’) engages the ‘correctness’ standard, so that this Court determines for itself the correct outcome, while making due allowance for such advantages as may have been enjoyed by the trial judge.
[20]See House v The King (1936) 55 CLR 499, 505; [1936] HCA 40 (Starke, Dixon, Evatt and McTiernan JJ).
[21](2024) 419 ALR 169; [2024] HCA 30. See also DPP v Pham [2024] VSCA 266; Jacobs (apseudonym) v The King [2024] VSCA 309.
The parties accepted that the Court should apply the correctness standard.[22] We have done so.
PART B:TEAGUE’S GROUNDS 1–3 AND DALEY’S GROUNDS 1–2
[22]See Commonwealth Director of Public Prosecutions (DPP) v Knopp (a pseudonym) (2023) 73 VR 73, 104 [160]; [2023] VSCA 315.
Applicant’s submissions — cloning
Senior counsel for Teague abandoned objection to C6. It’s not clear to us whether counsel for Daley adopted this abandonment when adopting Teague’s submissions in relation to the consignments, but that does not have an impact upon our conclusions on this or any aspect of this application.
Teague contended that there were two foundational questions relevant to ground 3.
The first question is this: was this a broad brush agreement to import a commercial quantity of methamphetamine (as found by the judge[23]) or was the agreement (as opposed to the statements of the offence) more finely focussed? Specifically, it was contended that the judge approached the conspiracy simply as an agreement to import a border controlled drug and treated the cloning methodology as an overt act or acts in furtherance of the conspiracy, rather than part of the unlawful agreement itself.[24] Proof of the conspiracy, Teague contended, necessarily involved proof of the cloning methodology. He relied on this passage from the particulars:
During the period between 20 April 2021 and 17 November 2021, the accused were all parties to an agreement to import multiple consignments that contained commercial quantities of methamphetamine. By 20 April 2021, [Daley] and [Teague] had entered into the agreement with each other and unknown people. By 19 May 2021, [RT] had joined the agreement.
The agreement contemplated that the conspirators would use ‘clones’ of companies — which operated legitimate businesses — to covertly control consignments. These consignments would be addressed to the cloned companies and would purport to be legitimate commercial importations. The conspirators would pose as representatives of the company and deal with the consignments in connection with their importation, they would do so by using a combination of the falsely subscribed mobile telephones, fraudulently obtained bank accounts and email accounts that were different to any which were used by the legitimate company.
The conspirators intended that the methamphetamine would be smuggled within some of the consignments. The remaining consignments — which would not contain methamphetamine — would be ‘dry runs’. The purpose of the dry run consignments was to test the efficacy of the cloning methodology and to surround the importations which contained methamphetamine with apparently legitimate business activity.[25]
[23]DPP (Cth) v [Teague] & [Daley] [No 5], County Court of Victoria, 29 October 2024, [6] (‘Reasons — Ruling No 5’).
[24]Ibid [6].
[25]Particulars of charge 1, [5]–[7].
The second question is whether there is ‘reasonable evidence’ of his participation in the combination such as to engage the co-conspirators’ rule in Ahern.[26] Senior counsel for Teague contended that there was no evidence (leaving aside evidence of telephone calls that is the subject of ground 5) capable of demonstrating that the applicant was part of any aspect of the cloning methodology. In other words, there was no evidence that he participated in the more focussed conspiracy as framed by the prosecution.
[26]Ahern v The Queen (1988) 165 CLR 87 (Mason CJ, Wilson, Deane, Dawson and Toohey JJ) (‘Ahern’).
The co-conspirators’ rule requires that evidence in the form of acts done or words uttered in an accused’s absence 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:
(a)there was a combination of the type alleged; and
(b)that the acts were done or the words uttered by a participant in furtherance of the common purpose of the combination; and
(c)there is reasonable evidence apart from the alleged co-conspirators acts or words, that the accused was also a participant.[27]
[27]Ibid 100.
Daley contended through counsel that the key issue regarding the admissibility of the cloning methodology was whether there was reasonable evidence against him on the threshold participation issue. He submitted that there was none. He adopted Teague’s submission on the more finely focussed nature of the agreement requiring therefore reasonable evidence that he participated in an agreement to use cloning methodology to effect the importation of border controlled substances.
Thus, neither applicant in this application disputed that:
(a)there was a combination of the type alleged in the particulars; and
(b)acts were done by co-conspirators in furtherance of its common purpose.
Both, however, contended that the Ahern requirement that there is reasonable evidence of their participation in the conspiracy was absent.[28] In the absence of ‘reasonable evidence’ it did not advance the prosecution’s cases against them and therefore is irrelevant and inadmissible.
[28]Ibid.
Applicant’s submissions — consignments 1–9
The applicants’ contentions on the admissibility of C1 to C9 effectively turned on the outcome of the cloning argument. The activities of various co-offenders in relation to C1 to C9 (excluding, in Teague’s case, C6), may be evidence that there was a combination of the type alleged in the particulars and that acts were done by the co-conspirators in furtherance of its common cause. Both applicants contended, however, that, absent the cloning methodology evidence, there was no reasonable evidence they (or either one of them) participated in the conspiracy.
Specifically, Teague contended:
(a)there is no evidence whether C1 to C4 contained border controlled drugs;
(b)there is no admissible evidence — or indeed any evidence — that C5 contained border controlled drugs; and
(c)C7 to C9 were examined by Australian Border Force and did not contain border controlled drugs.
Teague argued that whilst the prosecution case was that all these consignments were the subject of cloning methodology and therefore purposively nefarious, this contention was obviously dependant on the admissibility against him of the cloning evidence. Absent the cloning evidence, the C1 to C5 and C7 to C9 importations are innocuous and irrelevant. Teague contended, however, that, if the cloning evidence is admissible in the trial, and the evidence of the impugned consignments is relevant, the evidence should nonetheless be excluded under s 137 of the Act.
Daley contended that all of his alleged overt acts related to C1 to C9 were readily capable of an innocent explanation; that is, that his company (LMLT) in the usual and legitimate course of its business would engage in just the kind of conduct that constituted those overt acts. By receiving instructions from apparently legitimate consignees, collecting the imported goods, transporting them, storing them and ultimately delivering them he was doing no more than ‘business as usual’.
Similarly, the documentation that surrounded these alleged overt acts was equally innocent, and knowledge of the combination or participation in the conspiracy could never be inferred.
Insofar as C4 was concerned, counsel for Daley accepted that, while the evidence disclosed that Daley may have committed a minor offence by using false registration plates on his brother’s truck to transport C4, this could not be said to give rise to any inference of knowledge of the combination or participation in it. There were many other alternative explanations that fall well short of demonstrating knowledge or participation.
Insofar as Daley’s overt acts concerned C10, he contended that most of those acts could also be characterised as part of his company’s legitimate transportation business. He submitted that his inspection of the interior of the Hobart mixer and assistance in the disposal of the substituted inert contents of the mixer, could at most constitute an accessorial charge to C10 and did not demonstrate actual knowledge of the combination nor participation in the conspiracy.
It follows, so Daley’s submission maintained, that these other reasonable explanations for his overt acts meant that the Ahern ‘reasonable evidence’ threshold was not met. There was no reasonable evidence to found the conspiracy charge, nor to provide a basis for admitting the cloning evidence or C1 to C9 against him; the overt acts carried out by him were therefore irrelevant — they cannot rationally affect the assessment of the probability of a fact in issue in the proceeding.
Both applicants relied on s 137 of the Act as a fall back to their primary relevance arguments.[29] The danger of unfair prejudice arising from the admission of the cloning evidence and/or C1 to C9 was said to outweigh the probative value of the evidence. These arguments were pressed relatively faintly in oral submissions. We shall consider them later in these reasons in paragraphs [48]–[59].
[29]Evidence Act 2008, s 137.
Director’s submissions — cloning and the consignments
Senior counsel for the Director provided an overview of the prosecution case. We have largely appropriated this, rearranged it slightly and reproduced it at paragraphs [9]–[17] of these reasons. On the issue of the admissibility of the cloning and C1 to C9, the Director made the following submissions:
(a)C1 to C9 and the associated cloning methodology are relevant to the conspiracy charge in four ways when assessed in the context of C10:
(i)proof of the existence, nature and scope of conspiratorial agreement;
(ii)proof of each applicant’s participation in the conspiratorial agreement;
(iii)proof that both applicants and other parties to the agreement intended that an offence would be committed pursuant to the agreement for the purpose of s 11.5(2)(b) of the Criminal Code (Cth); and
(iv)evidence concerning C1 to C9 is relevant to prove that the parties committed a multitude of overt acts for the purpose of s 11.5(2)(c) of the Criminal Code (Cth);
(b)most of the Director’s written and oral submission focussed on paragraph [(a)(ii)] above, as did the applicants’ submissions. The Director submitted that under Ahern principles, the existence, nature and scope of the unlawful agreement may be proved by the non-hearsay use of co-conspirator’s acts and declarations outside of the presence of the applicants (or either of them as the case may be). In this case, C1 to C9 and the accompanying cloning methodology demonstrate that C10 was just one instance of a much broader scheme on foot at least over a seven-month period and utilising four cloned companies. At least one prior methamphetamine importation was effected (C6). It can be inferred this was on a scale comparable with C10. Consignments 7–9 allow an inference that they were carried out to facilitate future importations — as ‘dry runs’ to test the continuing efficacy of the cloning process and to disguise or camouflage future methamphetamine importations using the same methodology. Thus C10 ‘did not define the conspiracy, rather it was a product of it’;
(c)the acts and declarations of the co-conspirator’s point to a common design and when considered in combination, prove there was a combination such as that alleged; and
(d)in this case, the conduct of each applicant supports the conclusion that they participated in the agreement. The Director submitted that ‘[the] evidence is both reasonable for the purpose of Ahern principles, and sufficient to allow the inference that they participated’. The evidence of each applicant’s varied involvements in the consignments supports the conclusion that their involvement in C10 was neither isolated nor innocent.
Consideration — Teague’s grounds 1–3 and Daley’s grounds 1–2
It will be recalled that a central plank of Teague’s submissions, adopted by Daley, was that the actual conspiracy alleged, and which the prosecution undertook to prove, was much more focussed than a mere agreement to import border controlled drugs. We do not understand this proposition to have been in dispute. Whilst the Indictment is drafted in narrow terms — that the applicants between 20 April 2021 and 17 November 2021 ‘conspired with each other, [RT] and unknown others to import a substance, the substance being a border controlled drug , namely methamphetamine, and the quantity being a commercial quantity’[30] — the Prosecution opening and Particulars frame the agreement alleged in much more specific terms. The conspiracy alleged concerned an agreement to import multiple consignments containing commercial quantities of methamphetamine, utilising the cloning methodology over a period of seven months. In the Director’s written case on this issue, the Director states:
The conspiracy charge is framed to give effect to the well-recognised purpose of the offence to expose the organisational framework of ongoing criminal activity by individuals acting in combination.[31] In DPP (Cth) v Knopp,[32] this Court endorsed the framing of a conspiracy charge in materially identical terms.[33]
[30]Indictment (Cth), dated 25 October 2024, 2.
[31]R v Shepherd (1988) 94 FLR 55, 62 (Street CJ), 64 (Lee J), cited in DPP (Cth) v Knopp (2023) 73 VR 73, [50]– [51]; [2023] VSCA 315 (‘Knopp’).
[32](2023) 73 VR 73; [2023] VSCA 315.
[33]Knopp (2023) 73 VR 73, [1], [12]–[14], [90]–[98], [104]–[105], [114], [118]–[122]; [2023] VSCA 315.
The applicants contended that the judge’s reasons in paragraph [6] of Ruling No 5 (which simply recite the elements of the offence) suggest that she approached the relevance and s 137 arguments from an erroneous perspective, and Kola[34] made it clear that there must be no conflation between the elements of the conspiracy offence on the one hand, and the evidence that is to be called to support the scope and existence of the agreement on the other hand.[35]
[34]DPP (Cth) v Kola (2024) 418 ALR 176; [2024] HCA 14 (‘Kola’).
[35]Kola (2024) 418 ALR 176, 187–8 [43]–[44]; [2024] HCA 14.
It is unnecessary to determine whether the judge did so confine her understanding of the framework of the conspiracy. The issues in this appeal concern the correctness of the admissibility rulings, not every step in the reasoning process.
As we have said, in these applications it has been accepted by all parties that the evidence disclosed there was a combination of the type alleged in the particulars and that acts and declarations were carried out by the co-conspirators in furtherance of the conspiracy. Specifically, we refer to the C1 to C9 consignments together with the associated fraudulent cloning methodology, that attended each consignment (whether concealing methamphetamines or not), and the circumstances of C10 including the 111 kg of concealed methamphetamines and its transportation and ultimate disposal. The live question under these grounds is whether there is reasonable evidence of the participation in the conspiracy by the applicants, or one or other of them.
Reasonable evidence of Teague’s participation in the [alleged] conspiracy
The classic statement of the co-conspirators’ rule deriving from Tripodi[36] and Ahern[37] was restated very recently in Kola:[38]
At common law, on a charge of conspiracy, evidence of the acts and declarations of each of the co-conspirators, even if engaged in each other’s absence, is admissible to prove, by inference, the existence of the conspiratorial agreement,[39] including its nature and scope.[40] Under the Evidence Act 1995, evidence of any such declaration is not excluded by the hearsay rule as it is not adduced to prove the truth of any fact asserted;[41] ie, it is admissible for a non-hearsay purpose.[42] However, ‘evidence in the form of acts done or words uttered outside [an accused’s] 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 [alleged co-conspirator’s] acts or words, that the accused was also a participant’.[43] The question of whether there is such reasonable evidence is for the trial judge to determine.[44] Once that threshold is overcome, then the acts done or words uttered by the alleged co-conspirators outside the presence of the accused are evidence of the nature and extent of the accused’s participation in the conspiracy.[45]
[36]Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 (‘Tripodi’).
[37]Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 (‘Ahern’).
[38]Kola (2024) 418 ALR 176, 188 [44]; [2024] HCA 14 (citations in original).
[39]Tripodi v The Queen (1961) 104 CLR 1, 6; [1961] ALR 780; Ahern v The Queen (1988) 165 CLR 87, 93; 80 ALR 161, 163 (Ahern); see also Tsang v The Queen (2011) 35 VR 240; [2011] VSCA 336, [37] (‘Tsang’).
[40]R v Masters (1992) 26 NSWLR 450, 464 (‘Masters’); R v Bilick (1984) 36 SASR 321, 331–2; Caratti v The Queen (2000) 22 WAR 527; [2000] WASCA 279, [153]; R v Dinh (2000) 120 A Crim R 42; [2000] NSWCCA 536, [51]–[52].
[41]Compare s 59(1) of the Evidence Act 1995 (Cth); see Tsang, [37].
[42]Section 60(1) of the Evidence Act.
[43]Ahern at CLR 100; ALR 168; ss 57(2) and 87(1)(c) of the Evidence Act; R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127, [38].
[44]Ahern at CLR 103; ALR 171; ss 57(2) and 87(1)(c) of the Evidence Act.
[45]Ahern at CLR 95; ALR 165.
In our view, there is a significant body of evidence of Teague’s participation in the conspiracy — certainly enough to justify the appellation ‘reasonable evidence’ — all of it related to Teague’s conduct in respect of the various consignments. In particular we refer to the following evidence:
(a)a debit card using the stolen identity of Derek Singh was located by police under the back verandah of Teague’s premises at the time of his arrest;
(b)the account to which this debit card was linked was used to pay costs associated with C1 to C5;[46]
(c)the remnants of the Hobart mixer the subject of C6 were found at Teague’s property at the time of his arrest. Components had been removed to create an internal cavity in a similar manner to the Hobart mixer used in C10. Swabs of the cavity revealed traces of methamphetamine. It would be open to a jury to infer that C6 was a successful importation of border controlled drugs in a commercial quantity similar to C10;
(d)later in these reasons we set out six telephone calls allegedly concerning the applicant posing as Mohsen and another person. If the jury accepts that the voice they hear claiming to be Mohsen is Teague’s voice, this is powerful evidence of participation in the conspiracy:
(i)using a falsely subscribed telephone, Mohsen participated in six telephone calls with transport and logistics companies directing the movement of C10;
(ii)Mohsen is the first name of the director of the consignee company; and
(iii)in the first phone call, transport costs were paid using a MasterCard account in the stolen identity Caleb Newton. This account for this card had previously been used to pay costs relating to C6 — the remnants of which had been found at Teague’s property.
(e)further, around the time of these calls, Teague used an innocent business pretext to negotiate the lease of a premises in Ravenhall. C10 was, for a time, stored at this premises; and
(f)$1.474 million in cash found by police in Teague’s residences and his vehicle.
[46]We note that Teague submitted that the evidence does not demonstrate that the card was used to make all payments or in any event that he was the person who did. The card located at Teague’s premises was a Visa debit card issued to Derek Singh with a number ending 6465. Bank account statements record that a debit or credit card ending 6465 was used to pay C1 to C4 from a bank account ending 3159 in the name of Derek Singh. A payment receipt which the conspirators sent to Seaway Logistics in connection with C5 shows that the payment was made using a Visa card with a number ending 465 and in an amount which matches an ‘EFTPOS payment’ on a statement for the same bank account that is differently formatted to those which show the earlier payments. When viewed in the context of the evidence as a whole, it is open to infer that Teague used the card and details of the associated bank account to make the payments.
We consider there is considerable direct evidence against Teague to satisfy the ‘reasonable evidence’ test. The evidence relating to all consignments and the cloning methodology is admissible in his case in proof of the existence of the nature and scope of the conspiracy, in proof of his participation in the conspiracy, in proof that he and other parties intended that an offence would be committed pursuant to the agreement for the purpose of s 11.5(2)(b) of the Criminal Code (Cth), and in proof that the parties to the conspiracy committed numerous overt acts for the purpose of s 11.5(2)(c).[47]
Teague — unfair prejudice and probative value (s 137 of the Act)
[47]Criminal Code (Cth) ss 11.5(2)(b), 11.5(2)(c).
In written submissions, Teague contended that, if the evidence of the previous consignments and the associated cloning methodologies were relevant to the conspiracy charge, then the probative value of the evidence was slight and outweighed by the risk of unfair prejudice, so that the evidence fell to be excluded under s 137 of the Act.
It was submitted that the unfair prejudice would arise as follows:
(a)there was no evidence that C1 to C4 contained border controlled drugs and a jury may speculate impermissibly that one or more of these consignments did in fact contain border controlled drugs;
(b)C5 was intercepted by Malaysian authorities yet there is no evidence of what was seized. The Director cannot allege that C5 was a dry run or that it contained border controlled drugs. It is an invitation to speculate;
(c)C6 contained traces of methamphetamine but there is no evidence that it even contained a commercial quantity of border controlled drugs; and
(d)C7 to C9 did not contain any border controlled drugs. The allegation that the consignments were dry run importations pre-supposes criminality and inverts the burden of proof.
The Director submitted C1 to C9 have high probative value for the reasons expressed above and that the evidence concerning the inter-related cloning methodology also had high probative value. Neither applicant has identified any fact that would impair a properly instructed jury’s capacity to try the issues fairly and impartially. The Director submitted that ‘there is no risk that the admission of consignment 5 will unfairly prejudice the accused in circumstances where the jury will have before them the email sent by the conspirators[48] containing an innocent explanation for the abandoned importation of that consignment’.
[48]A further co-conspirator (not Teague or Daley).
We do not accept Teague’s submissions regarding s 137. Each consignment, whether containing border controlled drugs or not, was imported using the same fraudulent cloning methodology. C1 to C5 and C7 to C9 are not evidentially impotent because it cannot be proven that they contained border controlled drugs. If these were legitimate importations of heavy commercial equipment the question arises — why use the fraudulent cloning methodology? In our view there is no apparent innocent explanation. The inference that these were dry runs, testing the efficacy of the cloning system as part of the criminal conspiracy is readily available. The probative value of the cloning methodology and the associated consignments is very high for the reasons that we have expressed. The danger of unfair prejudice arising from speculation about the contents of unexamined consignments (C1 to C4) or the Malaysian consignment (C5) can be minimised or extinguished by judicial direction.
Teague further submitted that the Derek Singh debit card found under his back verandah floor is of little (if any) probative value and invites unwarranted and prejudicial speculation. It was submitted that the judge erred in ruling that this evidence ‘logically and reasonably’ would enable a jury to infer that the applicant fraudulently obtained and operated a bank account in the name of Derek Singh and that he used it to pay costs associated with C1 to C5. The fact that a bank card in Derek Singh’s name was located at the applicant’s property — so Teague’s submission continued — does not mean the applicant obtained or operated that account.
Viewed in isolation, the submission concerning this evidence might have some force, however the Derek Singh evidence is part of a much wider body of circumstantial evidence available against Teague which we have reviewed at paragraphs [43]–[45] of these reasons. It includes the location of the C6 Hobart mixer at Teague’s property, his purported telephone calls concerning the C10 consignment, $1.474 million found when he was arrested, and his negotiation for the lease of a factory used to temporarily store C10. The Derek Singh credit card — fraudulently obtained using a stolen identity and used to pay costs associated with C1 to C5 — is part of a solid body of evidence linking Teague to the conspiracy. It is highly probative and does not invite unfair speculation. The asserted prejudice that is summarised at paragraph [47] is not unfair prejudice. For the reasons explained, the ‘prejudice’ to Teague lies in the combined strength of the evidence, and its capacity — legitimately — to establish the prosecution’s case against him. It does not invite unfair speculation or invert the burden of proof.
Daley — reasonable evidence of participation
There is also a significant body of evidence available against Daley that, in our view, comfortably satisfies the Ahern/Tripodi ‘reasonable evidence’ test. In particular, we refer to:
(a)Daley collected and delivered C3, C4, C6, C7, C9 and C10 through his freight and forwarding business (LMLT), and he was involved in the transportation of C8 and C1 through other means;[49]
[49]For consignments 3, 4 and 7 the evidence does not spell out that LMLT physically collected and delivered the consignments but the paper trail of the delivery/collection was through LMLT. Physical collection and delivery are alleged to have occurred through LMLT for C6 and C10. Daley is alleged to have also been involved in the following consignments (but not via LMLT): C8 (evidence of email screenshot / phone intercept) and C1 (evidence of C1 invoices on Daley’s MacBook).
(b)he created and received documents in respect of these consignments;
(c)he collected and delivered C4 in a truck fitted with fraudulent number plates;
(d)in respect to C10:
(i)at 1.14 pm on 22 October 2021 a covert surveillance device captured the sound of what is alleged to be a radio frequency detector in close proximity to C10, which at that time was stored at his Williamstown warehouse. This is said by the prosecution to be for the purpose of detecting hidden investigative devices;
(ii)at about 4.43 am on 27 October 2021 at Daley’s Williamstown warehouse, optical surveillance and a covert listening device captured Daley using a radio frequency detector. He scanned the device over C10 and two trucks (including his white Isuzu truck). The optical device captured Daley putting on gloves and removing a panel from the side of C10. He then took photographs of the inside of the C10 mixer before replacing the panel. These were photographs of an internal cavity of the mixer;
(iii)on the morning of 28 October 2021, Daley and Teague met at the Shell service station in Brooklyn;
(iv)on 15 November 2021 at 2.26 pm, police surveillance evidence captured Daley driving his white Isuzu truck — which displayed false number plates — to an address in Ravenhall. C10 had been moved to the nature strip from inside that address;
(v)earlier at about 11.37 am, Daley attempted to borrow another truck for a few hours to ‘pick up a few pallets’. He offered $15,000 for this service but the offer was declined;
(vi)at 2.29 pm, RT’s black Subaru arrived at the Ravenhall address;
(vii)at 2.56 pm, Daley left the address in the white Isuzu truck with C10 loaded on the back. RT left the premises in his car. The convoy travelled via a circuitous route through Gisborne to a rural unsealed road in Bullengarook;
(viii)between 4.00 pm—4.41 pm, CCTV footage showed the same vehicles returning to Melbourne without C10;
(ix)at 9.34 pm, police located C10. The plastic wrapping, previously applied by Daley had been removed, it had been partially dismantled with the side panel removed and packages containing the inert substances were scattered about;
(x)two pairs of gloves subsequently located in one of Daley’s vehicles bore his DNA and forensic tracing powder which had been applied to the packages of substituted drugs in C10 during its controlled delivery;
(e)on 17 November 2021, in a lawful search of Daley’s residence, police located $132,190 in five separate bundles;[50] a radio frequency device was located in Daley’s passenger vehicle located outside Daley’s residence;
(f)in September 2020, Daley hired a storage unit in Keilor East using fraudulent identification details;
(g)when police searched this unit, a hot plate and kitchen items were located. It is alleged these items were some of the contents of C2, C3 and C4;
(h)when police searched Daley’s warehouse in Williamstown on 17 November 2021, they located an unopened cardboard box containing a pizza oven. This is alleged to be part of C7.
[50]This is the subject of a separate ground, Daley’s ground 3. See paragraphs [60(b)] and [63] of these reasons.
We are satisfied that there is ‘reasonable evidence’ of Daley’s participation in the conspiracy. Whilst the majority of the evidence relates to C10, and there may be some force to Daley’s contention that his activities in transporting earlier consignments did not necessarily demonstrate anything beyond the usual and legitimate course of his business, his activities — when viewed through the prism of C10 — go far beyond this point. It will be open to the jury to conclude that he transported C10; he conducted countersurveillance; he internally examined C10 where the border controlled drugs had been secreted; he assisted in further transporting it via a circuitous route to a remote location; and he then assisted in dispersing the substituted inert substances. Additionally, at his residence, he possessed a large sum of cash. This is evidence that places his previous activities into relief. The combination of all this evidence is, we consider, ‘reasonable evidence’.
We do not accept Daley’s contention that the evidence against him proves no more than an accessorial connection to C10. Nor do we accept that reasoning backwards from C10 somehow involves ‘reverse engineering’ or circular reasoning. We consider that the evidence would permit a jury to conclude that the conspiracy was ongoing for at least seven months before C10, and that Daley joined it at some stage during its continuing existence. Accepting this, the evidence of the relevant acts and declarations of the co-conspirators over the course of the conspiracy and carried out in furtherance of it becomes admissible against Daley to demonstrate the nature and scope of the conspiracy and, where relevant, his participation.[51]
Daley — unfair prejudice
[51]Damoun v The Queen [2015] NSWCCA 109, [27]; Standen v The Queen (2015) 253 A Crim R 301, 364–6 [414]–[418].
For reasons already stated, we consider the evidence of C1 to C9 and the associated evidence of cloning have high probative value. Without them there is no prosecution case on the conspiracy charge. Most of the evidence is circumstantial in nature, not particularly amenable to cross-examination, and not subject to the reliability and credibility weaknesses of human recollection.
As we have said concerning Teague, we see no real potential at this stage for there to be unfair prejudice from the admission of the cloning evidence or the consignment evidence. The prejudice arising from the admission of this evidence in both applicants’ cases arises from its high probative value.
Conclusion — cloning and C1–C9 admissibility arguments
We consider that the cloning methodology evidence and the evidence of consignments C1 to C9 is admissible in the trial.
In relation to Teague, leave to appeal on proposed grounds 1–3 must be refused.
In relation to Daley, leave to appeal on proposed grounds 1 and 2 must also be refused.
PART C:CASH AND OTHER EVIDENCE – TEAGUE’S GROUND 4 AND DALEY’S GROUND 3
Submissions — cash and other evidence
It will be recalled that large amounts of cash and other alleged ‘accoutrements of crime’ were found upon the search and seizure of both applicants’ properties and storage units:[52]
(a)at properties in connection with Teague, police located a total of approximately $1.45 million:
(i)at one address $458,100 was detected in plastic bags secreted at three separate locations;
(ii)at another residence, $923,837 was detected and secreted at eight separate locations;
(iii)at the Ravenhall factory, during the presence and arrest of Teague and RT, $53,617.55 was detected in a black ‘Targus’ bag. Teague’s DNA was not excluded from elastic bands and envelopes which held the cash. Also, upon Teague’s arrest at the Ravenhall factory, police seized three mobile phones and a laptop computer. When asked to provide access to information pursuant to s 3LA of the Crimes Act 1914, he failed to provide sufficient information to enable access;[53]
(iv)in his car, $12,310 was found in the boot and console.
(b)at Daley’s Keilor East residence, police located $132,190 in five separate bundles.
[52]In relation to Daley (at his residence, warehouse, storage unit, and in his truck) police seized cash, a radio frequency scanning device, fraudulent identification card, false car registration plates, hot plates and kitchen equipment, plastic bags, clip seal bags, a glass pipe, pizza oven, black fabric gloves. In relation to Teague (at two residences in his vehicle, and at RT’s factory) police seized cash, a planetary mixer (allegedly containing meth), Derek Singh’s credit card, a bug detector, three mobile phones and a laptop.
[53]Crimes Act 1914, s 3LA.
Over objection, the judge admitted this evidence, observing:
The prosecution rely on the large quantities of currency possessed by [Teague] and [Daley] as evidence that they were both engaged in a business that involved the importation of drugs, and therefore that they were joint participants in the charged conspiracy. They submit that significant investment would have been required to support the operation of that business.
In Falzon’s case, the High Court upheld the admissibility of the location of $120,800 cash at the respondent’s premises in support of a charge of trafficking in cannabis on the date that the cash was located. The court considered that the cash ‘was admissible as an item of circumstantial evidence that, in conjunction with evidence of other indicia of drug trafficking, was capable of founding the inference that, as at [the charge date], the respondent was carrying on a business of trafficking in cannabis’. The Court observed that it was well established that the existence of such a business could be established by evidence that ‘an accused who is found in possession of a prohibited drug, is also found in possession of the accoutrements of a drug trafficking business, such as scales, re-sealable plastic bags, firearms, a multiplicity of mobile telephones or significant quantities of cash’.
In Falzon, evidence that the accused was engaged in a business of trafficking cannabis was admitted to prove that cannabis found in his possession was possessed by him for the purpose of selling it. Clearly here, the accused are not presented on a charge of trafficking. In Parker v R, the New South Wales Court of Appeal accepted that evidence of the location of $5.37 million in cash at the home of an accused was admissible by analogous reasoning in support of charges of importing a commercial quantity of cocaine.
The Crown submit that the facts and reasoning in Falzon and Parker demonstrate that cash and electronic devices may be relied on as drug offending paraphernalia in the absence of direct proof that the cash or electronic devices had been, or would be used in connection with a charged drug offence. This is so because they are admissible as items of circumstantial evidence that are relevant when they are assessed in the context of the evidence as a whole and not merely in isolation.
Defence counsel join to submit that the actual charge alleged against their clients is demonstrably different and distinguishable from those in Falzon. In Falzon the trafficking charge was the substantive offence while here it is one of conspiracy. They submit that that case is not an authority for a principle that the Crown can lead evidence of money in support of the existence of a conspiracy or agreement. Nor can the money rationally affect the assessment of the probability of the existence of a fact in issue in this proceeding as it does not involve drug trafficking. [Teague’s Defence Counsel] observed that the finding of a substantial amount of cash is not evidence of enrichment that can be anchored to the life of the agreement here.
I accept that neither Falzon nor Parker concerned a conspiracy charge, but the latter did consider the use of cash in an importation charge. There, cash was not alleged to be the direct product of drug trafficking, but had relevance to the substantive importation offence. I therefore turn to consider whether the cash has relevance in this case.
Logically, the manner in which the Crown puts its’ case regarding the cash has resonance when viewed against the backdrop of the history of ten prior importations of goods using the cloning methodology, (whether or not each consignment contained [border controlled drugs]). Such a business, conducted for illegitimate purposes, would require significant funds. The cash is therefore a logical accoutrement of the business of that conspiracy, whether or not there is direct evidence of its’ origin, or the time frame in which it was amassed.
The secretion of cash at each accused’s premises has capacity to rationally affect the assessment of a fact in issue, specifically whether the accused intentionally agreed with others to import a commercial quantity of methamphetamine. It is relevant, and viewed in context adds significant probative value to the prosecution case, which is not outweighed by any identified unfair prejudice to the accused.
Evidence of the cash is admissible.[54]
[54]DPP (Cth) v [Teague] & [Daley] [No 5], County Court of Victoria, 29 October 2024, [78]–[86] (‘Reasons — Ruling No 5’) (citations omitted).
Under cover of proposed ground 4, Teague contended:
(a)The prosecution seek to lead the evidence as circumstantial evidence relevant to the conspiracy charge, based on the reasoning from Falzon[55] and Parker.[56] It was submitted that those cases were distinguishable in that ‘no substantive offence is alleged against [Teague]’, unlike Falzon and Parker.
(b)Alternatively, if there were some relevance to the conspiracy charge, the risk of unfair prejudice outweighs it. The evidence is apt to be misused, not amendable to judicial direction and would invite speculation as to the applicant’s criminal activities.
[55]R v Falzon (2018) 264 CLR 361; [2018] HCA 29 (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) (‘Falzon’).
[56]Parker v The Queen [2020] NSWCCA 206 (‘Parker’).
In support of his proposed ground 3, Daley made similar submissions, that:
(a)neither on the opening or in its particulars did the prosecution identify the cash as a particular of the conspiracy charge;
(b)it was originally the subject of a separate count on the indictment;
(c)to link the cash to the conspiracy charge requires ‘impermissible speculation of inference upon inference’;
(d)the reliance by the prosecution on Falzon and Parker is inappropriate. Daley sought factually to distinguish those cases from the conspiracy allegation made in this case. He submitted that there was a ‘qualitative difference between the use of cash located at an accused’s premises in a case like Falzon, where it forms part of the accoutrement of trafficking and a conspiracy to import on the facts as they present here’.
(e)Parker provides no support for the prosecution’s argument;
(f)it ‘cannot be said that the only rational explanation for the cash located at [Daley’s] residence ($132,190) was that he was a participant in the alleged agreement’;
(g)Daley ran a freight forwarding company and ‘there is no reason to rationally exclude the possibility that the cash was associated with legitimate business conducted through that company’;
(h)the danger of the unfair prejudice is high, even if the cash were relevant. ‘The jury would inevitably engage in unfairly prejudicial reasoning by dint of the presence of the cash ...’
The Director, relying on Falzon, submitted that it was well established that an accused’s possession of cash and other ‘accoutrements of a drug business’ (which in that case included scales, resealable plastic bags, firearms and a multiplicity of mobile telephones)[57] was admissible to support an inference that the accused was engaged in the business of selling drugs and that the existence of this business was logically probative of his guilt on a charge of drug trafficking. This reasoning applies by analogy to render admissible evidence of both the cash and other items in Teague’s possession to prove that the accused were participating in the ongoing conspiracy alleged in ground 1.
[57]Falzon (2018) 264 CLR 361, 366 [1]; [2018] HCA 29.
Consideratation – cash and other evidence
In Falzon, the High Court considered $120,800 in cash located at the respondent’s premises as admissible as relevant to a charge of trafficking cannabis on the date that the cash was located.[58] It was held that:
… the cash was admissible as an item of circumstantial evidence that, in conjunction with evidence of other indicia of drug trafficking, was capable of founding the inference that, as at the date that the search warrants were executed, F was carrying on a business of trafficking in cannabis …[59]
[58]Ibid.
[59]Ibid.
The permissible use of this type of business evidence is not limited to proof of intention. In Sultana v The Queen,[60] cited with approval by the High Court in Falzon, the New South Wales Court of Criminal Appeal accepted that business evidence was also admissible to disprove an accused’s assertion that police had planted heroin on his person, and also to support the evidence as to the location of the drugs.[61] In this Court the Director contends that the applicants had joined an ongoing conspiracy to import commercial quantities of methamphetamine. The jury could infer that there had been at least one successful importation of a significant quantity of that drug (C6). The nature of the cloning methodology, the ‘dry runs’ and the labour needed to facilitate the same necessarily mean that significant sums would need to be expended in the hope of reaping vast profits.
[60](1994) 74 A Crim R 27 (‘Sultana’).
[61]Falzon (2018) 264 CLR 361, 375–6 [37]; [2018] HCA 29 citing Sultana (1994) 74 A Crim R 27, 28 (Gleeson CJ).
The cash in Falzon was held to be admissible as circumstantial evidence, along with other evidence in the case, that could found an inference that Falzon was carrying on the business of trafficking in cannabis.[62] In this case, it is circumstantial evidence, along with other evidence, that Teague and Daley are part of an ongoing business to import methamphetamine. Viewed this way, there is no practical distinction between Falzon on the one hand and Teague and Daley on the other. All were alleged to be in an ongoing drug related business. The cash was/is relevant to proof of that proposition.
[62]Ibid 379 [45].
The other ‘accoutrements of crime’, found in Teague’s possession (including the phones and laptop computer) in conjunction with the other evidence, including the cash found in his possession, are capable of supporting the same inference.
There is no error in the judge’s ruling on this evidence. Teague should be refused leave to appeal on ground 4; and Daley should be refused leave to appeal on ground 3.
PART D: VOICE IDENTIFICATION — TEAGUE’S GROUND 5
Submissions — Voice identification
Teague’s proposed ground 5 contests the admission of voice identification by Detective Shafeeg as lay opinion evidence pursuant to s 78 of the Act.[63] Detective Shafeeg asserts familiarity with Teague’s voice and expresses his opinion without reservation. The content of the impugned calls has been referred to earlier in these reasons.[64] A voice, said to be Teague’s, assumes the identify of ‘Mohsen’,[65] a director of KEA — the company cloned for the purposes of C6 and C10. Over the course of three telephone intercepts of 0480050921, and four audio tracks, ‘Mohsen’ provides directions concerning C10. It is sufficient to say that these directions very likely came from a participant in the criminal conspiracy.
[63]Evidence Act 2008, s 78.
[64]See paragraph [14(h)] of these reasons.
[65]The precise spelling of this name varies: during trial, the prosecution referred to a person named ‘Mohsen - or Mosen or Moshen’. Written submissions by prosecution and Teague’s counsel refer to ‘Mohsen’. Detective Shafeeg (and the judge in her ruling) refers to a person named ‘Moshen’.
Detective Shafeeg was part of the investigation team and was involved in listening to and reviewing telephone intercepts of ‘targets’ and also reviewed recordings made by Direct Couriers. As a consequence, he listened to 107 minutes of calls, in some cases repeatedly, in which ‘Mohsen’ was a participant.
He has listened to and reviewed the voice of Mohsen Younes, owner and managing director of KEA. Additionally, he was present with Teague for three hours on the day of his arrest.
Detective Shafeeg states the following:
[25] I believe the ‘Moshen’ identified in the following conversations is not Moshen YOUNES:
(a)telephone intercepts relating to 0480050921;
(b)phone calls provided by Direct Couriers Audio.
[26] I believe that ‘Moshen’ identified in paragraph 25 is [Teague].
The real Mohsen Younes states that he did not make the impugned calls or have the conversations. The prosecution case is that these calls were made by Teague, impersonating Mohsen, in participation of the conspiracy and in attempting to facilitate the importation of 111 kg of methamphetamine in C10 as an overt act of that conspiracy.
The trial judge ruled as follows:
L/S/C Shafeeg proffers an opinion based on being present with [Teague] for over three hours on the day of his arrest in 2021, and from subsequently listening to over 120 minutes of telephone intercepted conversations involving [Teague], that the person identified as ‘Moshen’ in telephone intercepts relating to the number 0480 050 921, and in certain audio tracks, is [Teague].
In Smith, the High Court considered an analogous situation where two police officers purported to identify the accused man in security photographs on account of previous dealings with the accused. The High Court held that that evidence was simply not relevant. Notwithstanding that the police officers had previous encounters with the accused, they were in no better position to make a comparison between the accused and the person in the photographs than the jurors.
Counsel for [Teague] submit that the same is true in the present case, and the fact that L/S/C Shafeeg was present with the accused for approximately three hours during his arrest does not place Shafeeg in a better position to compare the voice on various recordings than the jury.
However, these recordings contain irrelevant and possibly prejudicial material. If the jury were asked to listen to them so that they were able to make a voice comparison between the accused’s voice and the intercepted phone call there is a real risk that the jury would be distracted from their central task.
Furthermore, in Smith the jury were able to view the accused in the dock each day. The jury will not necessarily have that same opportunity to hear [Teague’s] voice in court.
The evidence of Shafeeg is relevant, probative, and avoids the risk of unfair prejudice to the accused.
Voice identification by L/S/C Zahan Shafeeg that ‘Moshen is [Teague]’ will be admissible.[66]
[66]Reasons — Ruling No 5, [96]–[102] (citations omitted).
Regrettably, there is little analysis of the merits of this argument, save that ‘the jury will not necessarily have the same opportunity to hear [Teague’s] voice in court’.[67]
[67]Ibid [100].
Section 78 of the Act relevantly provides as follows:
Exception—lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if—
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event … [68]
[68]Evidence Act 2008, s 78.
In Victoria, s 78 is the accepted basis upon which a person may give voice identification evidence.[69]
[69]Although in NSW, ad hoc expertise pursuant to s 79 is treated as a statutory basis for that admission of voice recognition evidence.
In Kheir,[70] a ground of appeal was that the informant was permitted to give evidence of his recognition of the applicant’s voice in various intercepted telephone conversations.[71] His recognition was based on his familiarity with the applicant’s voice having listened to it over 1,000 telephone calls in the space of about a month and ‘over and over again’.[72] His evidence was admitted as a lay opinion pursuant to s 78 because he had a broader experience of the applicant’s voice than the jury had.[73] Absent the informant’s evidence, the jury’s only exposure to the applicant’s voice (at least in the Crown case) would be his ‘no comment’ responses in his record of interview.[74] The Court said this:[75]
In our view, the evidence of Sergeant Bray was more appropriately viewed as falling within s 78 than s 79. The ‘matter’ of which Sergeant Bray had a ‘perception’ was the audio recordings of the telephone intercepts, the recordings of the applicant’s record of interview and a comparison of the two. His perception of that comparison met the test of relevance because he was in a better position to make that comparison than the jurors were.[76] Whether the voice heard in the intercepts was also that in the record of interview was a fact in issue, and the comparison could rationally affect the assessment of the probability of that fact. Sergeant Bray’s opinion was based upon that comparison, and his opinion — that the voices on the two tapes were the same — was necessary to shed light upon the observations he made about the voices’ similarities.[77]
[70]Kheir v The Queen (2014) 43 VR 308; [2014] VSCA 200 (‘Kheir’).
[71]Ibid 323 [65]; [2014] VSCA 200 (Maxwell P, Redlich and Beach JJA).
[72]Ibid 316 [40]; [2014] VSCA 200.
[73]Ibid 318 [48]; [2014] VSCA 200.
[74]Ibid 325 [74]; [2014] VSCA 200.
[75]Ibid 323 [65]; [2014] VSCA 200 (Maxwell P, Redlich and Beach JJA).
[76]Cf Smith v R (2001) 206 CLR 650, 654–5, [9]; [2001] HCA 50.
[77]Cf Odgers, Uniform Evidence Law in Victoria, Thomson Reuters, (2010) at [1.3.4180] where reasoning in R v Leung (1999) 47 NSWLR 405, 412 [34]; [1999] NSWCCA 287 is criticised as follows: ‘It was a fact in issue whether the two accused were the persons recorded speaking on the DAT tapes. Evidence of their voices recorded on another occasion was relevant to that fact in issue since a comparison between the voices on the two sets of tape recordings could rationally affect the assessment of the probability of the existence of the fact in issue. That comparison was a relevant ‘matter or event’ in the proceeding although … it is not necessary that the ‘matter or event’ must itself be relevant. The interpreter’s opinion was based on what he heard when he listened to the two sets of tape recordings and engaged in such a comparison. In addition, evidence of that opinion was arguably necessary to obtain an adequate account or understanding of his perception of the similarities between the two sets of voices’.
In Tran,[78] this Court applied the principles from Kheir.[79] Evidence of professional Vietnamese translator who had listened to 37 intercepted calls which captured the voice of a person speaking in Vietnamese and compared it to the accused’s voice in his record of interview.[80] The interpreter stated that she had listened to all calls over a two-month period, repeatedly.[81] The trial judge in Tran considered that the reasoning in Kheir applied to the interpreter’s attribution evidence.[82] The Court of Appeal described the charge, as it concerned voice identification, as impeccable.[83]
[78]Tran v The Queen [2016] VSCA 79 (‘Tran’).
[79]Ibid [105] (Weinberg, Santamaria and McLeish JJA).
[80]See ibid [62].
[81]Ibid [80].
[82]Ibid [103].
[83]Ibid [119] (Weinberg, Santamaria and McLeish JJA).
Consideration — Voice identification
Detective Shafeeg’s opinion is based on his involvement in Teague’s investigation:[84]
(a)he was part of the investigation from October 2021. Part of his role was to listen to and review telephone intercepts and phone numbers;
(b)the ‘consignment 10 calls’ relate to six calls concerning C10. The first three calls took place on 11 October 2021 in which ‘Mohsen’ engaged Direct Couriers to collect C10 from Seaway logistics;
(c)the next two calls took place on 5 November 2021. ‘Mohsen’ (using a number ending in 921) answered two calls from a delivery driver who had collected C10 from Daley’s factory. He redirected delivery to a factory at Ravenhall;
(d)in the last of the six calls, on 15 November 2021, ‘Mohsen’ used the 921 number to discuss details concerning the whereabouts of C10, with the owner of the Ravenhall factory.
[84]The following information was set out in a document placed before the trial Judge entitled Prosecution submissions regarding Zahan Shafeeg’s statement, dated 14 October 2024.
The total length of these six calls is approximately 26 minutes.
In this case it is anticipated that the jury will hear what is demonstrably Teague’s voice. These are identified as ‘evidentiary calls’ in the depositions. It is proposed by the prosecution to play 11 evidentiary calls, occupying 14 minutes in total. We understand that a further six calls, irrelevant but for voice identification purposes may be played to the jury. The total time of these six calls is approximately 40 minutes.
Thus, in total, the prosecution propose that the jury would hear either 14 minutes or 54 minutes of calls featuring what is demonstrably Teague’s voice. It may be that some recordings from the day of his arrest may be played, but this is unknown at this stage.
Teague did not participate in a police interview. It is obviously unknown whether he will venture into the witness box.
Against this, as we have observed, Detective Shafeeg was with Teague for most of a three-hour period immediately post arrest. Teague responded to cautions in three audio visual recordings, and answered questions concerning the orders under s 3LA of the Crimes Act 1914 (Cth). All of this has been recorded.
Detective Shafeeg has also listened to a total of 107 minutes of calls intercepted in relation to Teague’s ‘overt’ service in addition to the 14 minutes or 54 minutes that the jury will hear. He has now listened to most of these calls on at least two occasions.[85]
[85]Detective Shafeeg’s statement, dated 10 October 2024.
Thus, for the purposes of the ‘Kheir comparison’, Detective Shafeeg will have listened for the purposes of the voice comparison to around 150 minutes of what is demonstrably Teague’s voice in telephone intercepts.[86] Additionally, he was in his presence for about three hours on the day Teague was arrested and had various conversations with him in person.
[86]The ‘Kheir comparison’ refers to the threshold described in Kheir (2014) 43 VR 308; [2014] VSCA 200 and is quoted in paragraph [79] of these reasons.
In oral submissions, Senior Counsel for Teague put the applicant’s position quite clearly. The essence of the ground is a ‘straight Smith’s situation’: the jury will be in the same position as Detective Shafeeg — no better, no worse. This is because all of the material Detective Shafeeg had access to, including the three hours in which Teague was in his company on 17 November 2021 can be played to the jury and compared to the C10 calls.
Senior Counsel contended that the judge’s remarks at paragraph [99] were erroneous. It will be recalled that the judge concluded that the recording of these three hours contained ‘irrelevant and possibly prejudicial material’ and that there was a risk that the jury could be distracted from their central task.[87]
[87]Reasons — Ruling No 5, [96]–[102] (citations omitted), quoted in paragraph [75] of these reasons.
Senior Counsel contended on his application that it would be quite open to the prosecution to play to the jury this ‘three hour material’ (excised, if necessary) of any ‘irrelevant or prejudicial material’.
It seems to us that there is force with this argument. If the prosecution is in a position to play all the recordings that form the basis of supposed lay opinion voice recognition evidence, and if the defence agree to that material being put before the jury (excised if necessary), then the recordings should be played to the jury and tendered in evidence.
In that case, the jury will have had the same opportunity (or something very close to it) as Detective Shafeeg had to make a comparison of Teague’s voice and that of ‘Mohsen’, so as to determine whether or not they are satisfied beyond reasonable doubt that the voice heard in the C10 calls is Teague’s voice.[88]
[88]See Haddara v The Queen (2014) 43 VR 53; [2014] VSCA 100.
In the language of Smith, Detective Shafeeg would be in no better position than the jury to compare Teague’s voice to that of ‘Mohsen’ in the C10 calls.
We will grant leave to appeal on ground 5, allow the appeal on that ground, and set aside so much of the judge’s decision that relates to the voice identification since we consider that the voice recognition evidence of Detective Shafeeg is inadmissible evidence of opinion under s 76 of the Act, that is not saved by s 78 (or s 79).[89]
[89]Evidence Act 2008, ss 76, 78.
We emphasise that this conclusion is predicated on the basis that all, or the great majority, of the recordings considered by Detective Shafeeg will be played to the jury as part of the prosecution case. In light of the indication given to us by Senior Counsel during oral submissions, we consider the prosecution have a duty to place this material before the jury once it is requested by the defence. Should, for any reason, the defence’s position change, that ruling may have to be revisited.
It is unnecessary to consider Teague’s alternative s 137 argument.
PART E:THE DIRECTOR’S APPEAL
The Director’s appeal concerns Ruling No 4 given on 22 October 2024 (with reasons following on 29 October 2024). In this ruling, the judge concluded that:
(a)the conspiracy charge was impermissibly joined with two proceeds of crime charges, one concerning Teague, the other concerning Daley; and
(b)the judge stated that she had to determine whether the conspiracy and proceeds of crime charges be tried separately pursuant to s 193 of the Criminal Procedure Act 2009 (‘CPA’), in both cases she would have made such an order.
The judge’s reasons
In her reasons, the judge briefly summarised the sums of cash found by the police in relation to each of the applicants upon their arrests. She then set out the relevant legislation regarding the principles of joinder, including ss 3 and 159(3)(c) of the CPA,[90] and the two limbs in which ‘related offences’ can be joined to an indictment:
(a)if the offences are founded on the same facts; or
(b)if the offences form or are part of a series of offences of the same or similar character’.[91]
[90]CPA, ss 3, 159(3)(c) and sch 1 cl 5(1).
[91]DPP (Cth) v [Teague] & [Daley] [No 4], County Court of Victoria, 14 October 2024, [10] (‘Reasons — Ruling No 4’). See Fleming (a pseudonym) v The Queen [2021] VSCA 206, [58] (‘Fleming’).
The judge outlined the requirements on the prosecution to prove the proceeds of crime charges against Teague and Daley,[92] and further stated that:
The predicate offending for a [proceeds of crime] charge must be a substantive offence. It is an element of that offence that the accused dealt with the property that was the proceeds of crime. Proceeds of crime is property that is derived and realised, directly or indirectly, from the commission of an offence.[93]
With respect to the drug offence, proceeds are ‘derived or realised’ from the substantive dealing with those drugs whether it be through possession for sale, trafficking, or importation. Money is not ‘derived or realised’ from a mere conspiracy to commit a substantive offence. To make good the conspiracy charge, the Prosecution must prove each accused entered an agreement with another person to commit an offence and intended to conspire with that person in the manner alleged.[94]
[92]Reasons — Ruling No 4, [19].
[93]Criminal Code (Cth) s 11.5(2).
[94]Reasons — Ruling No 4, [26]–[27].
Summarising her understanding of the prosecution case, the judge stated:
The Prosecution accept that put this way, the [proceeds of crime] charges do not form part of a series of offences in that they are not of the same character as the conspiracy charge. They submit, however, that these charges are properly joined with the conspiracy charge as predicate offending, providing a common factual origin for all three offences. They submit that the [proceeds of crime] charges could not have been alleged but for the conspiracy charge providing the proceeds of crime underpinning these charges.[95]
[95]Ibid [30].
In considering whether the conspiracy and proceeds of crime charges should be joined, the judge found that:
(a)there was no evidence as to how or when Teague or Daley’s cash came to be on/nearby their properties;[96]
(b)C6 was alleged to contain traces of methamphetamine and neither applicant was charged with any substantive offence in relation to C6;[97]
(c)there was ‘ample evidence’ for bringing the proceeds of crime charge against both applicants without requiring the conspiracy charge;[98]
(d)‘the overt acts relied upon in support of the conspiracy count, simply … cannot predicate offending for the purposes of the [proceeds of crime] charges’;[99]
(e)the proceeds of crime and the conspiracy charge are not founded on the same facts, and therefore the first limb of the joinder principles is not satisfied;[100] and
(f)there is no nexus or sufficient features of similarity between the proceeds of crime and conspiracy charge, and therefore the second limb of the joinder principles is also not satisfied.[101]
[96]Ibid [21].
[97]Ibid [21].
[98]Ibid.
[99]Ibid [28].
[100]Ibid [31].
[101]Ibid [32].
The judge then considered whether the conspiracy and proceeds of crime charges should be tried separately pursuant to s 193 of the CPA.[102] She stated that:
Mr [Teague] did not participate in a record of interview with respect to any charge. To successfully defend the [proceeds of crime] charge he would likely be required to proffer an explanation for the presence of this cash to the jury. If both charges are joined, this course may compromise his defence of the conspiracy charge.
Furthermore, Mr [Daley] submits there is no evidence as to when or how the money got to his premises. It was found in various locations to which both he and his wife had access. There remains a question as to whom, if anyone, dealt with this money.
…
There is a real risk that the accused’s’ right to receive a fair trial would be compromised by the retention of both offence types on the present indictment.[103]
[102]Criminal Procedure Act, s 193 (‘CPA’).
[103]Reasons — Ruling No 4, [35]–[36], [38].
The Director’s submissions
The grounds of the Director’s appeal are as follows:
Ground 1: The learned trial judge erred in determining that clause 5(1) of Schedule 1 of the Act did not permit the joinder of charge 1 with charges 2 and 3 on the indictment dated 23 September 2024.
Particulars
The learned trial judge erred in determining that charge 1 was not ‘founded on same facts’ as charges 2 and 3 with the consequence that the charges were not ‘related offences’ as defined in section 3 of the Act.
Ground 2: The learned trial judge erred in determining that an order pursuant to section 193(1) of the Act for severance of charges 2 and 3 from charge 1 should be made in the event that, contrary to Ruling #4, clause 5(1) of Schedule 1 permitted joinder of the charges.
Particulars
The learned trial judge erred in determining that the accused’s right to a fair trial would be compromised by the retention of charge 1 together with charges 2 and 3 in the same indictment even in the event that, as the learned trial judge subsequently ruled, the evidence supporting charge 1 was cross-admissible with the evidence supporting charges 2 and 3.
In summary, the Director submitted on ground 1:
(a)the trial judge wrongly concluded that the Barrell and Wilson[104] test, as it applied to the question of whether charge 1 was founded on the same facts as charges 2 and 3, did not permit joinder of the charges;
[104](1979) 69 Cr App Rep 250, 252–3.
(b)charges 2 and 3 could not have been alleged but for the facts which gave rise to charge 1;
(c)without the charge 1 facts, charges 2 and 3 would not be supported by evidence that identified any particular kind of indictable offence from which the cash was derived, either wholly or partly and directly or indirectly;[105]
[105]As requested by s 400.1(1) of the Criminal Code (Cth).
(d)the trial judge misunderstood the prosecution case. She said the prosecution ‘do not assert that the money was derived from drug trafficking, importation, or is otherwise the direct fruits of the conspiracy charge’.[106] The Director submits that:
[106]Reasons — Ruling No 4, [21].
the prosecution case is that the cash must have been at least partly derived, directly or indirectly, from drug importation, given the accused’s participation in the business demonstrated by the evidence supporting charge 1, which included consignment 6, and the lack of any innocent explanation for the location of the cash.
(e)the trial judge incorrectly reasoned that the ‘predicate offending for a [proceeds of crime] charge must be a substantive offence’[107] and that ‘[money] is not “derived or realised” from a mere conspiracy to commit a substantive offence’.[108] Further the judge erred in stating that ‘overt acts relied upon in support of the conspiracy count simply, therefore, cannot predicate offending for the purposes of the [proceeds of crime] charges’;
(f)relatedly, the judge relied on the absence of any substantive charge for C6;
(g)the judge overlooked the inferential reasoning to prove the criminal provenance of the cash, and wrongly concluded that there was ‘no evidence’ as to how the money came to be at each applicants’ properties;
(h)the judge was incorrect to conclude that the only nexus between charge 1 and charges 2 and 3 was the fact that the charges 2 and 3 cash happened to be located during the charge 1 investigation;
(i)the judge concluded that there was ‘ample evidence’ other than charge 1 evidence, to support charges 2 and 3 independently. The ‘ample evidence’ included drug manufacturing paraphernalia. The prosecution did not rely on this paraphernalia in support of charges 2 and 3 and there was no warrant for the judge to consider it;[109]
(j)what the Barrell and Wilson test required was an assessment of whether the removal of any allegation of fact from the prosecution case supporting a charge on the indictment — being a fact which also gave rise to another charge on the indictment — would deprive the former charge of a sufficient factual foundation;
(k)the trial judge appeared to proceed on the basis that the charges were only ‘founded on the same facts’ if there was an overlap between the elements of the charged offences. This misapplied the Barell and Wilson test and deprived the joinder rules of the flexibility intended by Parliament.
[107]Ibid [26].
[108]Ibid [27].
[109]Ibid [30].
On ground 2, the Director contended that the judge justified the severance of charges 2 and 3 from charge 1 on the basis that ‘[there] is a real risk that the [applicants’] right to receive a fair trial would be compromised by the retention of both offence types on the [original indictment]’.[110] It was contended that the judge seemed to accept the applicants’ submission that they would be forced to forgo their right to silence on charge 1 if they were to give evidence to explain their possession of the cash in defence of charges 2 and 3. The judge considered this to be unfair.
[110]Ibid [38].
The cash found (in both applicant’s cases) was cross-admissible between charge 1 and charges 2 and 3. Thus, the Director contended, only evidence by the defence in defence of charges 2 and 3, would also be relevant and admissible on charge 1. There can be nothing unfair about joinder especially where, unlike R v McLean, there is no difference in the onus of proof applicable to the charges.[111]
[111](2000) 2 VR 118, 133–6 [32]–[37] (Tadgell JA, Phillips CJ agreeing at 119 [1], Batt JA agreeing at 139 [50]); [2000] VSCA 217 (‘McLean’).
Teague’s submissions
On ground 1, Teague in reply contended that:
(a)the original three-charge indictment did not comply with sch 1 cl 5 of the CPA.[112] This provides that an indictment may contain charges for related offences. ‘Related offences’ means that offences that are founded on the same facts or form, or are part of a series of offences of the same or similar character;[113]
(b)charges will be ‘founded on the same facts’ if they have a ‘common factual origin’.[114] A common factual origin will arise if ‘the subsidiary charge is one that could not have been alleged but for the facts which give rise to the … the primary charge’[115] (‘the Barrell and Wilson test’); and
(c)in Fleming,[116] the relevant ‘founding’ facts are the material fact required to prove the offences, as opposed to the evidence sought to be adduced to prove those material facts.[117]
[112]CPA, sch 1 cl 5.
[113]Ibid s 3 (definition of ‘related offences’).
[114]R v Barrell and Wilson (1979) 69 Cr App Rep 250 (‘Barrell and Wilson’).
[115]Ibid; Fleming [2021] VSCA 206, [77].
[116]Fleming [2021] VSCA 206.
[117]Ibid [90].
Thus, so Teague contended, the material facts required to prove the conspiracy (charge 1) are:
(a)that he entered an agreement with one or more persons;
(b)that he and one or more persons intended that an offence would be committed pursuant to that agreement; and
(c)that he, or at least one other person committed an overt act pursuant to that agreement.
Teague contended that these can be contrasted with the material facts required to prove charge 2 (in Teague’s case) — namely that:
(1)Teague dealt with money or property;
(2)believing it to be the proceeds of indictable crime or intending it to become an instrument of indictable crime; and
(3)at the time of the dealing, the value of the money was $1,000,000 or more.
The submission contended that the trial judge was correct to observe that the ‘predicate offending’ for a charge of dealing with the proceeds of crime charge be a substantive offence. Money is not ‘derived or realised’ from a mere agreement to commit a substantive offence.
Teague contended that even if there were an inference available that C6 was a successful importation of a large commercial quantity of methamphetamine, ‘there is no evidence as to when, where or how that methamphetamine was removed and dealt with. Similarly, there is no evidence of how or when the money came to be at [Teague’s property]’. Further, there is ample evidence to bring the proceeds charge against Teague, absent the conspiracy charge. The Barrell and Wilson test is therefore not met in this case. Charges 1 and 2 (and by extension charge 3 concerning Daley) are not related offences and do not comply with the presentment rule.
Insofar as ground 2 is concerned, Teague contended that even if charges 1 and 2 were properly joined on the indictment, the trial judge was correct to sever the indictment because the case against Teague would be prejudiced if the two charges were to be heard together. First, the evidence is apt to be misused by the jury — in order to use the evidence, the jury will be invited to infer that Teague possessed the spoils of C1 to C9. This is not part of the prosecution case against him, is without support in their evidence and is highly prejudicial. Second, even if they jury are directed that the possession of the cash is not evidence of Teague’s involvement in the sale of drugs pursuant to the conspiracy, they must necessarily be invited to conclude that Teague was otherwise involved in selling drugs and third, in order to defend charge 2, Teague may be coerced into the witness box to explain the origin of the seized money. This may well comprise his defence of the conspiracy charge.
Daley’s submissions
Daley, in comprehensive submissions, echoed the submissions made by Teague. In very short compass, as to ground 1 he submits:
(a)the ‘first limb’ of ‘related offences’ is the basis for the joinder;
(b)the conspiracy charge on the one hand, and charges 2 and 3 on the other are not ‘founded on the same facts’ in the Barrell and Wilson sense (that is, having a common factual origin whereby a subsidiary charge cannot be alleged but for facts giving rise to the primary charge);[118]
[118]Barrell and Wilson (1979) 69 Cr App Rep 250, 252–3.
(c)the judge’s characterisation of the prosecution case, and her application of legal principle are immaterial to the final question — can the proceeds of crime charge be alleged, absent the facts giving rise to the conspiracy charge;
(d)the relevant provision for the proceeds charge does not require the Director to specify anything more than a class of offence, such as a drug importation. It is unnecessary to prove a particular offence was committed. Further it is permissible for the prosecution to allege multiple classes of indictable offences, as long as each class of offence is an indictable offence;[119]
(e)if there is circumstantial evidence ‘other than the overt acts’ which would prove the proceeds of crime charge, then the Barrell and Wilson test must be resolved in the applicant’s favour — the proceeds of crime charge can proceed without reference to the facts giving rise to the conspiracy charge. There is no ‘common factual origin’ and the ‘first limb’ of ‘related offences’ is not satisfied. The subsidiary charge can be sustained absent the facts giving rise to the conspiracy charge. Daley relies on:
(i)the cash itself;
(ii)his tax records; and
(iii)the fact of multiple SIM cards, mobile phones and cash counting machines found at Teague-connected locations;
(f)as to ground 2, this proposed ground does not propose an appeal from any order made by the trial judge — it is concerned only with obiter;
(g)in any event, when paragraphs [37] and [38] of Ruling No 4 are read in its proper context, the judge does not refer to any suggested loss of the right to silence made by Teague but does refer to matters raised elsewhere in the defence outline of submissions on severance.[120]
[119]See Acts Interpretation Act 1901 (Cth) s 23.
[120]Dated 6 September 2024.
Consideration — Director’s appeal
Joinder
In our view, charges 2 and 3 were properly joined with the first charge.
The starting point of any analysis must be s 159(3)(c) of the CPA, which provides that an indictment must comply with Schedule 1.
Clause 5(1) of Schedule 1 permits ‘related offences’ to be joined in the same indictment. It provides:
5 Joinder of charges
(1)A charge-sheet or indictment may contain charges for related offences, whether against the same accused or different accused.
Section 3(1) defines ‘related offences’ as follows:
related offences means offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character; …
Charges are ‘founded on the same facts’ if they have ‘a common factual origin’.[121] As the Court observed in Dragojlovic:[122]
It is well established that joinder of multiple charges will be permitted if they have a ‘common factual origin’[123] or a ‘sufficient connection or nexus.[124] Such a ‘nexus’ will be established if the evidence on one charge would be admissible in the trial with respect to another.[125]
[121]Barrell and Wilson (1979) 69 Cr App Rep 250, 252–3 (Shaw LJ).
[122]Dragojlovic v The Queen (2013) 40 VR 71, 115 [196] (Redlich and Weinberg JJA, and Bell AJA) (citations as in reported version); [2013] VSCA 151. In that case, the Court considered Rule 2 of the Presentment Rules in the Sixth Schedule to the Crimes Act 1958.
[123]Barrell and Wilson (1979) 69 Cr App Rep 250, at 252–3.
[124]R v Collins [1996] 1 Qd R 631, at 636; R v Kray [1970] 1 QB 125, at 130.
[125]R v Kray [1970] 1 QB 125, at 131.
In Reid, when discussing the forebears of clause 5(1) of Schedule 1, the Court analysed the policy underpinning the rule it contains.[126] Applying Reid, it may be concluded that Clause 5(1) of Schedule 1, and the definition of ‘related offences’ in s 3 of the CPA, should be given a broad interpretation and should not be constrained by inflexible principles. The rule’s purpose is to promote flexibility and to overcome rigidity. The words of the definition in s 3 of the CPA are not technical and should be given their ordinary meaning. Thus, the Court in Reid observed:[127]
Section 371 of the Crimes Act provides that, subject to the rules under that Act, charges for more than one indictable offence may be joined in the same presentment. Rule 2 provides that charges for any offences may be joined in the same presentment if they are founded on the same facts or form or are part of a series of offences of the same or similar character. In our view, each of the requirements contemplated by the rule has been made out in this case (although it would have been sufficient if only one had been satisfied).
Before analysing the two requirements, it is desirable to mention that it has long been accepted that the rule should receive a liberal interpretation consistent with the policy underlying it, namely, to enable the joinder of charges which may be ‘properly and conveniently’ dealt with together. This involves the striking of a balance between on the one hand, the need to ensure that by charging the accused with separate offences in the one presentment he or she is not thereby unduly prejudiced or embarrassed at trial by reason of evidence being led in respect of each of the charges and, on the other, the interest of the public in the efficient allocation of judicial resources, consistency in verdicts and expeditious and final litigation as well as with the convenience of witnesses: R v Demirok at 254-5; Ludlow v Metropolitan Police Commissioner [1971] AC 29; R v Kray [1970] 1 QB 125 at 130-1; R v Collins; Ex parte Attorney-General [1996] 1 Qd. R. 631 at 636-7.
The requirement that the charges are to be founded on the same facts does not mean that the facts in relation to the charges must be identical in substance or be virtually contemporaneous. It is sufficient if the charges have a common factual origin (R v Barrell and Wilson (1979) 69 Cr App R 250 at 252-3), or if there is a sufficient connection or nexus between them (R v Collins at 636). In order to determine if the relevant nexus exists, one has regard to the charges and, broadly, the evidence that is to be led in relation to them by the parties. …
[126]R v Reid [1999] 2 VR 605, 621 [162]–[164] (Winneke P, Buchanan and Chernov JJA); [1999] VSCA 98 (‘Reid’).
[127]Ibid.
Section 193 of the CPA permits a judge to sever charges joined on an indictment. Since the grounds presently under consideration turn on whether the charges were properly joined, however, it is unnecessary at this juncture to do any more than acknowledge the powers reserved to a judge under s 193.
The first ‘or’ in the definition of ‘related offences’ operates disjunctively[128] and provides in effect that offences falling within one or other of two limbs may meet the definition. The grounds under consideration call into question whether charges 2 and 3 fall within the second limb. That is, are charges 2 and 3 ‘founded on the same facts’ as charge 1?
[128]Fleming [2021] VSCA 206, [91]–[101] (Priest , Kyrou and Niall JJA).
The ‘facts’ upon which the ‘offences’ must be ‘founded’ for ‘the purposes of this first limb … are the material facts required to prove the offences, as opposed to the evidence sought to be adduced to prove those material facts’.[129]
[129]Ibid [90].
It is not possible to state a precise formula for when two or more offences will be ‘related offences’. The definition, as we have said, has a flexible operation.[130] In order to determine whether the offences are founded on the same facts, however, it is necessary to analyse the issues on the prosecution case as formulated and consider whether, assuming the case is proved, there would be the required relationship.
[130]McLean (2000) 2 VR 118, 128 [23] (Tadgell JA, Phillips CJ agreeing at 119 [1], Batt JA agreeing at 139 [50]); [2000] VSCA 217.
Charges may have a common factual origin where, as here, there are primary charges and subsidiary charges. Where the subsidiary charges could not be alleged but for the facts giving rise to the primary charges, the charges will be ‘founded on the same facts’ and thus related. As was observed in Barrell and Wilson: [131]
The phrase ‘founded on the same facts’ does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin. If the charge described by counsel as the subsidiary charge is one that could not have been alleged but for the facts which give rise to what he called the primary charge, then it is true to say for the purposes of rule 9 that those charges are founded, that is to say have their origin, in the same facts and can legitimately be joined in the same indictment.
[131]Barrell and Wilson (1979) 69 Cr App Rep 250, 252–3 (Shaw LJ).
It will be recalled that in the conspiracy trial the prosecution will be permitted to lead evidence that at Teague-related properties,[132] police located $1.45 million. At Daley’s property, police located $132,190. This evidence is admissible in the conspiracy trial as circumstantial evidence along with the rest of the evidence, that Teague and Daley are part of an ongoing business of importing methamphetamine.
[132]Including his car.
Applying Falzon reasoning, the jury will be invited to conclude that Teague and Daley had profited from the business including at least one earlier successful importation of methamphetamine (C6) and that they were part of a business that had significant ongoing costs that would require injections of cash.[133]
[133]Falzon (2018) 264 CLR 361, 379 [45]; [2018] HCA 29.
We consider that the evidence of cash, at both applicants’ properties is on both applicants’ cases a material fact to the conspiracy alleged in charge 1. As we have said, along with the other circumstantial evidence in the case, it provides some proof that the ongoing business had completed at least one successful importation. It is a substantial piece of evidence in the trial of charge 1.
Charges 2 and 3, the proceeds of crime charges, are cross-admissible as we have observed, and obviously enough have a common factual origin with the substantial piece of evidence in the conspiracy charge — namely the detection of very large sums of money at each applicants’ properties.
We consider the trial judge to have erred in stating that the prosecution ‘do not assert that the money was derived from drug trafficking, importation, or is otherwise the direct fruits of the conspiracy charge’.[134] The prosecution case is that the cash found must have been at least partly derived directly or indirectly from drug importation that occurred as a result of the ongoing unlawful agreement (which resulted in at least one successful importation) and the lack of any innocent explanation for the large amounts of cash. Indeed this evidence was admitted by the judge as relevant to charge 1 on exactly that basis. Evidence will be led of each applicant’s taxable income as inconsistent with their cash holdings. In reaching this conclusion we have not overlooked that Daley’s attributed cash amount is less than 10% of that of Teague, however Daley’s overall sum ($132,190) is still sufficiently large, in our view, for the same reasoning to apply.
[134]Reasons — Ruling No 4, [21].
As a consequence of the judge’s misunderstanding, she wrongly applied the Barrell and Wilson test. For the reasons set out above, material facts in the primary offence (conspiracy) and the subsidiary offences (the proceeds of crime charges) have a common factual origin. It is not to the point that the offence is a ‘mere conspiracy’. It is an ongoing joint enterprise to import large commercial quantities of methamphetamine. As we have said, it can reasonably be inferred that at least one overt act (C6) has resulted in a successful importation. That overt act is predicate offending for the purpose of charges 2 and 3. We know of no authority that precludes an established overt act to a conspiracy from serving as a predicate for proceeds of crime charges. It would be an unusual state of affairs if prosecutors were compelled to charge overt acts as substantive offences, as well as conspiracy, in order to secure joinder.
We also are of the view that the trial judge erred in relying on ‘ample evidence’ which included a drug press which was available to support charges 2 and 3 should they be heard separately. The prosecution did not rely on that evidence to support charges 2 and 3 and the Barrell and Wilson test does not contemplate consideration of other evidence outside the prosecution case. The question to be determined was this: on the prosecution case if the cash found was removed from the conspiracy charge, would it deprive the proceeds of crime charges of a factual foundation? Plainly enough it would.
We would allow the Director’s appeal on ground 1. The charges were properly joined.
Severance of charges 2 and 3 from charge 1
Counsel for Daley correctly observed that this proposed ground does not in fact relate to any order made by the trial judge and instead is concerned only with an obiter remark in respect of s 193(1) of the CPA, the trial judge having already found that the charges were impermissibly joined.
We agree. The judge’s obiter remark cannot constitute an ‘interlocutory decision’, engaging the provisions of s 295 of the CPA. Ground 2 of the Director’s putative appeal is therefore incompetent.
It would be inappropriate to provide an advisory opinion on the merits of this obiter remark. We would observe, however, that if the judge’s comment that there was a ‘real risk that the accused’s right to receive a fair trial would be compromised by the retention …’ of charges 2 and 3,[135] was in response to a submission that the accused would forgo their right to silence on charge 1 in defending charges 2 and 3, then we believe this submission, and the judge’s response to it, to be misconceived. First, the evidence on charges 2 and 3 was admissible on charge 1. Whether or not there was discretionary severance, the accused would have to confront the evidence of the cash at trial. Whether they do so by going into evidence is a matter for them and their advisors. As we see it, however, the cash evidence that they have to confront is identical in either event. Second, unlike McLean where one of the charges carried with it a reversal of the burden of proof,[136] in this case that burden rests with the prosecution on both charges throughout. In McLean, it was held that the reverse onus provision provided no basis for severance of the secret commission charges. There is force in the Director’s contention that this conclusion applies with even greater force in the present case ‘where the justification for severance is not supported by any difference in the onus of proof applicable to the charges’.
[135]Reasons — Ruling No 4, [38].
[136]In McLean, the charge of receiving a secret commission carried the reversal of the burden of proof: McLean (2000) 2 VR 118, 133–5 [32]–[37]; [2000] VSCA 217.
As we have said, however, since the impugned remark cannot constitute an interlocutory decision for the purposes of the CPA, this proposed ground of appeal is incompetent.
PART F:CONCLUSION
We consider the cloning methodology evidence and the evidence of consignments C1 to C9 is admissible in the trial. Application for leave to appeal on Teague’s grounds 1–3 and Daley’s grounds 1–2 must be refused.
There was no error in the judge’s ruling on the admissibility of cash and other accoutrements of crime. Application for leave to appeal on Teague’s ground 4 and Daley’s ground 3 is refused.
We will grant Teague leave to appeal on ground 5, allow the appeal on that ground, and declare the voice recognition evidence of Detective Shafeeg inadmissible evidence of opinion (s 76 of the Act) that is not saved by s 78.[137] This conclusion is predicated on the basis that all or the very great majority of the recordings considered by Detective Shafeeg would be played to the jury as part of the prosecution case.
[137]Evidence Act 2008, ss 76, 78.
We will allow the Director’s cross-appeal on ground 1. Charges 2 and 3 were properly joined with charge 1.
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