Oakley v The State of Western Australia

[2005] WASCA 65

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   OAKLEY -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 65

CORAM:   MALCOLM CJ

ROBERTS-SMITH JA
MCLURE JA

HEARD:   10 MARCH 2005

DELIVERED          :   5 APRIL 2005

FILE NO/S:   CCA 176 of 2004

BETWEEN:   REVEL RONALD OAKLEY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :FRENCH DCJ

File No  :CAR 28 of 2003

Catchwords:

Criminal law - Appeal against conviction - Conspiracy to possess a prohibited drug with intention to sell or supply - Whether reasonable independent evidence of participation - Failure to direct as to purpose of participation - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 33

Result:

Appeal allowed
Conviction quashed
Retrial ordered

Category:    B

Representation:

Counsel:

Appellant:     Mr W B Harris

Respondent:     Ms T D Sweeney & Ms E Abou­Merhi

Solicitors:

Appellant:     William Berkley Harris

Respondent:     State Director of Public Prosecutions

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

Ahern v The Queen (1988) 165 CLR 87

R v Marinovich, Romeo & Ricciardello (1990) 46 A Crim R 282

Case(s) also cited:

R v Nirta (1983) 51 ALR 53

R v Ross (1987) 29 A Crim R 77

Mickelberg v The Queen [1984] WAR 191

Krakouer v The Queen (1998) 194 CLR 202

Davis v The Queen (1991) 103 ALR 417

1. MALCOLM CJ:  In my opinion, this appeal should be allowed, the appellant's conviction and sentence set aside and a new trial ordered.  I have reached this conclusion for the reasons to be published by McLure JA with which I am in entire agreement.

2. ROBERTS-SMITH JA:  I have read in draft the reasons for judgment of McLure JA.  I agree with her Honour's reasons, conclusions and proposed orders.

3. In relation to ground 3, the State conceded that on the indictment presented to the jury it was incumbent upon the State to prove that the appellant agreed to jointly possess the drugs with intent to sell or supply them to another and it was not sufficient for the State to show only that the appellant had knowledge that others would possess the drugs with that intent and be willing to lend assistance in some way.

4. The trial Judge in her directions, described the question to be determined by the jury variously as being whether the appellant was included in the arrangement, that he was part of the team, that he "was in the loop", that he was involved in an agreement for all of them to be involved in purchasing the drugs and then selling them and making money; that the general arrangement was that the appellant was going to assist by keeping his eyes and ears open, by providing protection in effect for what was going on and to warn of any possible police interference in the scheme.  She repeatedly described the significant issue as being whether he was involved in the scheme or part of the conspiracy or the plan or that he was in the loop, or part of the team and that what he was agreeing to do was to provide the protection which he was in a position to provide.

5. Her Honour's directions gave an erroneous characterisation of the case as charged, which was that the State was alleging the appellant had agreed to jointly possess the drugs with the requisite intent.  At no stage did her Honour draw a distinction between that and proof only that the appellant had knowledge that the others were arranging to possess the drugs with intent to sell or supply and that he would be willing to lend assistance in some way.

6. It is trite and fundamental that the prosecution must prove the conspiracy actually charged, not some other conspiracy (R v Marinovich, Romeo & Ricciardello (1990) 46 A Crim R 282, 313 ‑ 315). As it is not only possible, but likely, that the verdict of the jury was reached upon a satisfaction that the appellant had associated himself with an arrangement

by other members of his family that they would obtain possession of cannabis with intent to sell or supply it to others, but without joining in any agreement to jointly possess the drug, the conviction must be quashed.  Under the circumstances the case is not one for the application of the proviso.  I agree that there should be an order for a retrial.

1. MCLURE JA: The appellant was convicted on 20 October 2004 after trial of one count of conspiring with named others to possess a prohibited drug, namely, cannabis, with intent to sell or supply it to another, contrary to s 33 of the Misuse of Drugs Act 1981 (WA). He appeals against the conviction.

2. The State alleged that the persons involved in the conspiracy were all immediate members of the appellant's family.  Other than the appellant, they included his de facto wife Cicily Anne Dowden, his niece Kaylene Oakley and her de facto husband Gara Bero.

3. The appellant was employed in Carnarvon as an Aboriginal Police Liaison Officer with the Western Australian Police Service.  An undercover police officer who went by the code name "113" was attached to a police internal investigation.  For this assignment, operative 113 assumed the pseudonym Dylan D'Costa.  Operative 113 recorded telephone conversations and other encounters with Kaylene Oakley and a number of people.

4. The grounds of appeal are that the trial Judge erred:

   (1)in finding there was reasonable independent evidence of the participation of the appellant in the illegal combination;

   (2)in directing the jury that "the conspiracy or agreement, the unlawful agreement, is their agreement with the undercover officer to purchase drugs";

   (3)in failing to direct the jury that regardless of whether they found that the appellant had agreed not to arrest D'Costa if he sold drugs to Kaylene Oakley, or if they found that the appellant was the "eyes and ears of the operation" nevertheless they could only find the appellant guilty if they found, that he intended to jointly possess the cannabis with the others.

Reasonable Independent Evidence (Ground 1)

1. Prior to the prosecutor's opening address to the jury the learned trial Judge, French DCJ, was asked to rule on the sufficiency of the independent evidence of the appellant's participation in the illegal combination.  The trial Judge ruled that there was sufficient independent evidence of the appellant's participation to render admissible the words and conduct of a person alleged to be a co‑conspirator. 

2. The relevant legal rule is that where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co‑conspirator will be admissible to prove the participation of the accused in the conspiracy only where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant:  Ahern v The Queen (1988) 165 CLR 87 at 100.

3. There is no dispute that the evidence of the undercover operative established a combination of the type alleged and that the acts and words of Kaylene were in furtherance of the alleged common purpose, being to possess cannabis with an intention to sell or supply.  The only issue in the appeal is whether there was reasonable evidence, apart from otherwise inadmissible evidence, that the appellant was a participant in the combination of the type alleged.

4. The State relies on three matters.  Firstly, on instructions or requests communicated by operative 113 to Kaylene Oakley for a meeting with the appellant in relation to the proposed supply of drugs.  Between 3 February 2003 and 30 March 2003, operative 113 had a number of communications with Kaylene Oakley all of which were recorded.  From as early as 6 February 2003 operative 113 made it clear to Kaylene Oakley that he wanted a meeting with the appellant.  For example, on 9 March 2003 operative 113 informed Kaylene that he wished to meet with the appellant for his blessing; on 24 March 2003 the appellant told Kaylene that he would only deliver a large amount of cannabis on credit if he could be assured the appellant would look after them.  Statements of a similar kind were made prior to 1 pm on 30 March 2003.  These statements are relied on as direct evidence of what was said to Kaylene rather than hearsay evidence of the truth of the statements.

5. The second matter relied on is that on 20 February 2003 the appellant accessed the police mainframe computer to search the name "D. DeCosta".

6. The third matter is that in company with Kaylene, operative 113 visited the appellant at his home in Carnarvon.  Kaylene showed operative 113 into the house and introduced him to Bero and the appellant.  The discussion was recorded but large portions of it are unintelligible.  Part of the exchange is as follows (RO is the appellant, KO or Oakley is Kaylene):

   "#113Yeah, well thanks for taking the time out mate it was good of you.

   ROYeah no worries for that, yeah

   #113Excellent

   KOThere you go

   #113Yeah no it's good

   KOThat's the closest you will ever get to him, he seen you at the TAB this morning.

   #113Yeah

   ROYeah I saw him

   KOAh you knew Uncle Revel, why didn't you walk up to him.

   #113Ah know it's rude you know yeah ah it's good.

   RO(unintelligible).

   #113Yeah (unintelligible), Couple of girlies staying down here at the moment, so, yeah.  Beautiful.  Mate are you right with what were doing with Kaylene, is all pretty sweet.

   ROWhatever you (unintelligible) it's got nothing to do with me mate.

   #113Na na, Oh it's fine I just want to make sure.

   RO(Unintelligible)

   KOYou'll be right from here okay

   RO(Unintelligible)

   KOYou'll be right from here.

   RO(Unintelligible)

   KOHe doesn't talk about it but he.

   #113Sorry mate

   RONah

   KOHe'll be your eyes.

   RO(Unintelligible)

   KO(Unintelligible)

   #113Yeah

   OAKLEYYou've got to get out by yourself

   RO(Unintelligible)

   KOHe will tell you things or tell me things and let us know.

   #113Okay, I just wanted to make sure I wasn't going to get pinged, if we did bizz, you know what I mean."

7. Against the background of operative 113 seeking the appellant's blessing before proceeding with an arrangement to supply a substantial amount of cannabis on credit, the appellant accessed the police computer to check the name used by the police operative and subsequently participated in the meeting with the operative and Kaylene.  I am satisfied that those matters together constitute reasonable independent evidence of the appellant's participation in the combination of the type alleged.  I would dismiss ground 1.

Prosecutor's Statement (Ground 2)

1. In his opening address, the prosecutor erroneously informed the jury that "the unlawful agreement, is their agreement with the undercover officer to purchase the drugs …".  The error was not repeated in the closing address by the prosecution or the defence.  Further, the trial Judge did not adopt the prosecutor's erroneous characterisation of the agreement to be proved.  The trial Judge in her summing up made it clear on a number of occasions that the alleged agreement was made between the people named in the indictment.  The prosecutor's error in opening was effectively negatived and cured by the trial Judge's directions.  I would dismiss this ground.

Direction as to Purpose of Appellant's Involvement (Ground 3)

1. The State conceded that the trial Judge erred in failing to direct the jury on this issue as a result of which the trial miscarried.  In my view the concession is correctly made for the following reasons.  The State had to prove that the appellant agreed to possess the drugs with intent to sell or supply to another.  It would not be sufficient for him to have knowledge that others would possess the drugs with intent and be willing to lend assistance in some way:  R v Marinovich, Romeo & Ricciardello (1990) 46 A Crim R 282 per Malcolm CJ and Kennedy J at 313 ‑ 315.

2. At no stage during the trial was a contrast drawn between a willingness to assist other parties to possess cannabis with an intention to sell or supply and an agreement to jointly possess cannabis with intent to sell or supply.  As a result, the jury may have been left with the erroneous impression that if they were satisfied beyond reasonable doubt that the appellant knew that Kaylene Oakley had reached an agreement to purchase cannabis from operative 113 and was prepared to turn a blind eye to it or warn her of any police interference, then the conspiracy was made out against the appellant.  This possible interpretation of the evidence is inconsistent with a guilty verdict and was not drawn to the attention of the jury.  I would uphold this ground of appeal.

Conclusion

1. This Court has not been called upon to consider and determine whether the verdict is unsafe or unsatisfactory.  In those circumstances the appropriate course is to allow the appeal, set aside the appellant's conviction and sentence and order a retrial.  I would make those orders.