Michaels v The State of Western Australia - [2009] WASCA 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MICHAELS -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 174

CORAM: OWEN JA
McLURE JA
MILLER JA

HEARD: 13 AUGUST 2009

DELIVERED : 7 OCTOBER 2009

FILE NO/S: CACR 182 of 2008

BETWEEN: PAUL JAMES GREGORY MICHAELS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCOTT DCJ
File No  :IND 1525 of 2007

Catchwords:

Criminal law - Appeal against conviction - Manufacture of methylamphetamine - Alternative legal formulations of liability resting on the same or substantially similar facts - Whether jury unanimity on path to verdict required - Identification of appellant from telephone intercepts - Whether direction to jury adequate - Whether evidence of communications between co-conspirators admissible - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr P D Yovich

Solicitors:

Appellant: Henry Sklarz
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Coates v The State of Western Australia [2009] WASCA 142
Fermanis v The State of Western Australia (2007) 33 WAR 434
Gillard v The Queen (2003) 219 CLR 1
Jones v The Queen [1980] WAR 203
McAuliffe v The Queen (1995) 183 CLR 108
Mills v The State of Western Australia [2008] WASCA 219
Mouritz v The State of Western Australia [2006] WASCA 165
R v Braysich (2006) 166 A Crim R 109
R v Cramp (1999) 30 MVR 9
R v Leivers [1999] 1 Qd R 649
Tripodi v The Queen (1961) 104 CLR 1
Upton v The State of Western Australia [2008] WASCA 54
Willers v The Queen (1995) 81 A Crim R 219

OWEN JA: I agree with McLure JA.
McLURE JA: The appellant seeks leave to appeal and to appeal against his conviction after trial of one count of manufacturing a prohibited drug namely methylamphetamine.
During a search of a house in Barragup (the premises) on 18 April 2007, police located a small quantity of methylamphetamine together with apparatus and chemicals for the manufacture of that drug. The persons present at the premises at the time of the search were Joanne Hersey, Na Jan Wong and Simon Thorburn. The appellant was not present.
The evidence adduced by the prosecution at the appellant's trial included telephone intercepts and SMS messages between the appellant and Hersey, a telephone intercept between the appellant and Wong and telephone intercepts and an email between Hersey and Wong. A police officer who had listened to around 5,000 intercepted telephone calls gave evidence that on hearing the voice of the appellant at the police station she recognised his voice as the person she heard on the telephone intercepts. Further, the appellant admitted he was the owner of a mobile telephone containing a sim card with the number the subject of the relevant telephone intercepts. There was also evidence that the appellant and Hersey visited the premises on the night before the police raid.
The state case concerning the appellant's participation in the offence was in the alternative. The state contended that the appellant was a party to a joint criminal enterprise or alternatively that the appellant did an act for the purpose of enabling or aiding another person to commit the offence. The trial judge directed the jury that to return a unanimous verdict of guilty did not require all members of the jury to agree on either or both of the alternative bases of participation (ts 130).
The appellant relies on four grounds of appeal. He contends the trial judge erred:
1.in directing the jury that they did not need to agree unanimously on whether the appellant was a party to a joint criminal enterprise or alternatively enabled or aided the commission of the offence;
2.by inadequately directing the jury on the identification of the appellant as the person recorded in the telephone intercepts;
3.in permitting the admission into evidence of the telephone intercepts and emails between Hersey and Wong; and

4.in the alternative to ground 3, in failing to direct the jury as to the relevance and limited purpose of the evidence of the communications between Hersey and Wong.

Ground 1 - unanimity on path to verdict

The factual and legal analysis on this subject in the appellant's case is minimalist. It was supplemented after the hearing of the appeal by further written submissions in which reliance was placed on a recent decision of this court, Coates v The State of Western Australia [2009] WASCA 142.
Analysis of the detail of the state case and the relevant case law reveals this ground to be unarguable. The appellant principally relied on authorities on duplicity. Patent or latent duplicity in a charge gives rise to a miscarriage of justice. Duplicity occurs where there is a single charge which on its face (patent duplicity) or on the facts adduced at trial (latent duplicity) gives rise to more than one offence. The appellant relied on Jones v The Queen [1980] WAR 203 and Willers v The Queen (1995) 81 A Crim R 219, both of which are examples of latent duplicity. In each case there was only one charge on the indictment but two separate acts were relied on by the prosecution, each of which was itself capable of constituting the offence. Fermanis v The State of Western Australia (2007) 33 WAR 434 is also a case of latent duplicity.
No issue of duplicity arises where, as in this case, the prosecution relies on alternative bases to prove participation in a single offence under s 7 to s 10 of the Criminal Code (WA) (Code). The question in issue here is whether there must be unanimity on either or both of the participation pathways to a guilty verdict. The decision in Coates has no relevance to that issue.
Where there are alternative legal formulations of liability which rest on the same or a substantially similar factual foundation and which do not involve materially different issues or consequences, the jury only has to be unanimous in the verdict; it is not necessary that all members of the jury arrive at the same verdict by the same pathway: Mouritz v The State of Western Australia [2006] WASCA 165 [9] ‑ [17], [28]; R v Leivers [1999] 1 Qd R 649, 662; R v Cramp (1999) 30 MVR 9 [65] ‑ [68]. The principle applies to alternative offences (Cramp) and alternative bases of responsibility for a single offence (Leivers and the numerous authorities considered in Cramp at [31] ‑ [43]).
In Leivers the prosecution formulated its case against the appellants on a charge of murder on the basis that the appellants were involved in the prosecution of a common purpose (s 8 of the Criminal Code (Qld)) or alternatively aided the commission of the offence (s 7(1)(c) of the Criminal Code (Qld)). The trial judge directed the jury that they might reach the same conclusion by different routes but in the end they must all agree with the verdict which was announced. The appellants contended that was a misdirection. Dismissing that contention, the court said:
[G]uilt by reference to s 7(1)(c) required participation in [the victim's] murder by the appellant in question with knowledge that [the victim] was to be murdered; guilt by reference to s 8 required participation with knowledge that [the victim] was to be severely beaten and with his murder objectively a probable consequence of that beating. The same activities by each appellant were sufficient for either purpose. The essential issue raised for consideration is whether the jury could properly convict either of the appellants if some members concluded that that appellant knew that [the victim] was to be murdered while other jury members concluded that that appellant believed that only a severe beating (with murder as its probable consequence) was intended … A conclusion of guilt by virtue of s 7(1)(c) necessarily subsumed the less serious findings which were necessary to a conclusion of guilt by virtue of s 8. Guilt on the basis of s 8 involved an intention that [the victim] receive a beating which had murder as its objective probable consequence. That was plainly less than was necessary for guilt under s 7(1)(c), which involved knowledge that [the victim's] beating was intended to cause his death or grievous bodily harm (663).
The court in Cramp drew a distinction between alternative factual bases of liability (where unanimity is required) and alternative legal formulations of liability based on the same or substantially the same facts (where unanimity on other than the verdict is not required). Roberts-Smith JA in Mouritz referred with approval to a practical test of this distinction. Roberts-Smith JA said:
During the course of their judgment [in Cramp] their Honours reviewed a wide range of cases decided in Australia and other common law jurisdictions. They referred to the opinion of Professor Sir John Smith who, in his paper 'Satisfying the Jury' [1988] Crim LR 335 at 344, proposes a principle of general application that when the prosecution allege more than one factual basis for the crime charged and it is not possible to say 'if it was not the one, then it must have been the other' the jury should always be directed that they must all be satisfied as to the one basis or all satisfied as to the other, or both [15].
The circumstances of this case have to be considered against that legal framework. The state case was not that the appellant was a principal under s 7(a) of the Code because he physically committed the offence charged. The state relied on the doctrine of joint criminal enterprise. The High Court has explained that pursuant to this doctrine, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission: McAuliffe v The Queen (1995) 183 CLR 108, 114; Gillard v The Queen (2003) 219 CLR 1, 35 ‑ 36.
The trial judge directed the jury that there were two steps in determining whether the appellant was involved in a joint criminal enterprise. He said:
You must consider whether the prosecution has proved beyond reasonable doubt that this was a joint criminal enterprise and if so, with respect to the accused man, whether the prosecution has proved beyond reasonable doubt that he participated in that joint criminal enterprise (ts 129).
He described the state case in the following terms:
[T]he prosecution alleges in this case, that there was a joint criminal enterprise to manufacture methylamphetamine and that the accused man … participated in it, relevantly by providing the house in which to his knowledge, the drug was to be manufactured. A person participates in that joint criminal enterprise, either by committing the agreed crime himself or by encouraging, aiding and assisting the other or others of them who are part of the enterprise to commit the agreed crime (ts 128).
Thus, the state case was that the appellant's participation in the joint criminal exercise was by providing the house in which, to his knowledge, the methylamphetamine was to be manufactured. That conduct was also relied on for the purpose of establishing that the appellant had enabled and aided the commission of the offence by the co‑offenders. There is a closer connection between participation on the basis of aiding under s 7(c) of the Code and pursuant to the joint criminal enterprise doctrine than there is between s 7(c) and s 8 of the Code, which is a modified form of joint criminal enterprise where the offence committed must be the objective probable consequence of the offence the subject of the agreement. All of the facts relevant to the joint criminal enterprise relied on by the state in this case are also relevant to the alternative basis of aiding another person in committing the offence. Although the elements of each basis are not identical, a conclusion of guilt by virtue of a joint criminal enterprise in this case subsumes the findings necessary to a conclusion of guilt by virtue of s 7(c).
The alternative legal formulations of liability in this case are based on the same or substantially the same facts and are alternatives that satisfy the practical test identified by Professor Smith. Leave to appeal should be refused.

Ground 2 - identification

The appellant's complaint centres on the following direction from the trial judge:
Detective Leslie, defence says that she was not reliable because she did not [make certain enquiries]. Consequently, her evidence with respect to the recognition of the voice on the intercepts may not be and ought not be considered automatically reliable. You've got to consider her evidence generally to see whether you're satisfied beyond reasonable doubt that this was [the appellant's] voice, if you look at that evidence in company with the evidence on the search DVD, to which I've already referred (ts 138).
The gravamen of the complaint is that the trial judge ought to have directed the jury of the need to approach Detective Leslie's identification evidence (her recognition of the appellant's voice) with some caution rather than simply repeat the defence submission.
I am not persuaded the final two sentences of the quoted paragraph would have been understood by the jury as the judge recapping the defence case on the subject. Even if that was the case, there is nothing in the nature or circumstances of Detective Leslie's evidence, which would be classified as recognition not identification evidence (Mills v The State of Western Australia [2008] WASCA 219 [5]) in the context of the identification evidence as a whole that required a direction from the trial judge that they approach her evidence with caution. Leave to appeal on this ground should be refused.

Grounds 3 and 4

The appellant contended that the evidence of communications between Hersey and Wong was inadmissible or alternatively admissible for limited purposes that did not include the truth of the out of court statements.
The trial judge's ruling on admissibility is as follows:
I've determined that the evidence of the telephone intercepts and the SMS between Hersey and Wong are admissible in this case against the accused, as is the email to which reference has been made in this case, being the email from Mr Wong to Ms Hersey. I made that finding initially on the basis that the State's case was [that] Messrs Hersey, Thorburn, Wong and the accused man, were parties to a joint criminal enterprise to manufacture methylamphetamine.
I should further say that in my view, there has been demonstrated a prima facie case on the independent evidence admissible against the accused man, excluding evidence of the hearsay conversations of the alleged co‑offenders, that the accused was a party to a joint criminal enterprise with Ms Hersey, Thorburn and Wong to manufacture methylamphetamine.
So I only need to be persuaded on prima facie case on that independent evidence. To that end I refer to the telephone intercepts between the accused and Ms Hersey, comprising 29 telephone conversations and eight SMSs, in which there is reference to a number of matters, including the accused sourcing a place. The accused finding a place. The accused arranging to meet at the place on 17 April 2007, by which there is surveillance evidence.
On a view of that evidence he did. Discussions concerning whether the accused could provide a stainless steel frying pan, a welding mask or gas mask, each item of equipment being utilised in the actual manufacture of the methylamphetamine. Also, a telephone intercept between Mr Wong and the accused, dated 17 April 2007. Also, the evidence of the surveillance operatives as to the movements of the [accused's] vehicle on 17 April 2007, particularly at the Barragup address and in meeting up with Hersey.
My view is that the evidence provides an adequate foundation for an inference to be reasonably drawn that the accused man was a party to the joint criminal enterprise, with Hersey, Thorburn and Wong, to manufacture methylamphetamines (ts 121).
What is known as the 'co‑conspirators rule' applies to parties to a joint criminal enterprise: Tripodi v The Queen (1961) 104 CLR 1, 7; R v Braysich (2006) 166 A Crim R 109 [36] ‑ [39]. The co‑conspirators rule is to the effect that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others; the combination implies an authority in each to act or speak on behalf of the other: Tripodi (7). As anything said or done by a participant in a joint criminal enterprise can be treated as having been said or done by another participant, it is admissible for all purposes. Accordingly, not only were the communications in question admissible as essential background and context (see Upton v The State of Western Australia [2008] WASCA 54 [58]), they were also admissible as an exception to the hearsay rule.

In oral submissions at the hearing of the application, counsel for the appellant attempted to move beyond the grounds of appeal to assert that there was inadequate evidence of pre‑concert to enliven the application of the co‑conspirators rule. Bare assertions made on the run in the course of a hearing can appropriately receive short shrift. The evidence identified by the trial judge in his ruling clearly satisfies the evidentiary foundation for the co‑conspirators rule.
Leave to appeal should be refused on all grounds and the appeal dismissed.
MILLER JA: I agree with McLure JA.