Potier v R

[2006] NSWCCA 27

CITATION:	POTIER v REGINA [2006] NSWCCA 27
HEARING DATE(S):	30 September 2005 5 October 2005
JUDGMENT DATE:	17 February 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Hislop J at 97; Rothman J at 98
DECISION:	This decision has been amended. Please see the end of the judgment for a list of the amendments; Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - soliciting to murder - entrapment - illegally obtained evidence - vulnerability - warnings to jury regarding use of transcripts of recorded conversations - trial judge's discretion to admit evidence - hearsay evidence - investigating the mind of a juror - error on the face of the indictment
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Evidence Act 1995 Law Enforcement (Controlled Operations) Act 1997
CASES CITED:	King v The Queen (1986) 161 CLR 423 R v Mack (1988) 44 CCC (3d) 513 R v Masland (1988) 14 NSWLR 327 R v Ridgeway (1995) 78 A Crim R 307 R v Sloane (1990) 49 A Crim R 270 Richard John Sinclair Laws (No 2) (2000) 116 A Crim R 70
PARTIES:	Malcolm Huntley Potier (Appl) The Crown
FILE NUMBER(S):	CCA 2001/3101
COUNSEL:	W Roser (Crown) J W Conomos (Appl)
SOLICITORS:	Director of Public Prosecutions (Crown) McGowan Lawyers (Appl)
LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Hosking DCJ
LOWER COURT DATE OF DECISION:	30/09/2005

2001/3101

McCLELLAN CJ at CL
HISLOP J
ROTHMAN J

FRIDAY, 17 FEBRUARY 2006

POTIER, Malcolm Huntley v REGINA

Judgment

1 McCLELLAN CJ at CL: The appellant was found guilty by a jury of two counts of soliciting to murder contrary to s 26 of the Crimes Act 1900.

2 The proposed victims were Myra Linda Oswald, the appellant’s former partner with whom he had a young daughter and Glenn Wakeham who was in a relationship with Ms Oswald at the time the solicitation occurred.

3 Following his conviction the appellant was sentenced to a term of imprisonment of 6 years and 8 months to commence on 8 May 2000 and expire on 7 January 2007 with a non-parole period of 5 years, to expire on 7 May 2005.

4 The appellant appeals his conviction and seeks leave to appeal against the severity of the sentence.

5 At various stages in the proceedings the appellant has appeared for himself. This was true in the early stages of the preparation of this appeal although at the hearing he was represented by counsel. Prior to the hearing, the appellant filed written submissions which he personally prepared, which have been supplemented by a number of other written documents. At the hearing, counsel on his behalf advanced limited oral argument but after confirming his instructions indicated that the appellant wished to rely upon all of the written material that had been placed before the Court. Further written material has been received since the oral hearings. Much of the material is repetitive and some is difficult to understand. These reasons analyse the submissions as I understand them.

The Crown case

6 The Crown case was comprised of a history of the appellant’s life with his former wife and conversations in Australia with various people, some of which were recorded. The appellant had been living in a de facto relationship with Ms Oswald, and they had a young daughter, Sarah. They originally lived in, and were citizens of, the United Kingdom. The relationship broke down in August 1999 and in December 1999 the appellant flew to Australia with Sarah using false passports. In February 2000, he was detained and held at the Villawood Detention Centre, presumably as an illegal immigrant.

7 Subsequently, Ms Oswald came to Australia to rejoin her daughter. She took up residence with Mr Glenn Wakeham. The appellant believed Mr Wakeham was a paedophile who would harm Sarah. These thoughts seem to have become dominant in his thinking.

8 After coming to Australia the appellant formed an acquaintance with Ms Conway who gave evidence at the trial. She stated that she first met the appellant in late January 2000 when she was a proprietor of an internet café in Seaford, a suburb of Melbourne.

9 When the appellant first came into the shop he asked how to send anonymous email. He said his name was Bob. He later told her that he had arrived on an illegal passport under the name of Alexander Mills. He also told her he needed a driver’s licence.

10 The appellant eventually told her that he had abducted his daughter from the United Kingdom and came to Australia. The appellant told her that he was concerned about Mr Wakeham and had been told that he was a sexual deviant, that he was sexually abusive to his daughter Sarah, that he had been violent towards other children, and that he needed to protect Sarah from him.

11 Ms Conway later learned that the appellant had been detained by the Commonwealth police. The day after he was detained, he rang her at work. There were a number of telephone conversations, including one in which the appellant asked Ms Conway to marry him so he could remain in the country where he thought he would get a fairer deal over access to Sarah. He also gave her money to pay his legal representatives.

12 On one occasion when she visited him in detention the appellant gave her $10,000. He asked her to take the money and contact Dave from the United Kingdom and “it would be arranged through Dave that a prostitute would come forth and put up a story that (the appellant) had created on a floppy disc regarding Mr Wakeham.” The appellant told Ms Conway that there was a pretty bad story on the disc, which he gave to Ms Conway. She later threw the disc away. At first she kept the money in a fruit bowl at home but eventually took it to her shop and put it in her safe, which was never locked. She said that she later discovered that the money had been stolen by a casual employee.

13 Whilst in detention, the appellant spoke to Ms Conway about gaining custody of Sarah. He was confident he could do this but also said he had a plan B, which he had pre-arranged with Dave before he left the United Kingdom. That plan was to kill Mr Wakeham, but that he did not intend at that time to kill Ms Oswald because he believed she served the purpose of looking after Sarah.

14 The appellant also asked Ms Conway to contact Mr Wakeham’s ex-wife Patricia Wakeham. He believed that Patricia would say Mr Wakeham was guilty of sexual misconduct. Ms Conway told him that she spoke to Patricia who said that she could no longer recall the alleged sexual abuse. The appellant told Ms Conway to tell Patricia that she had to remember in order to get any monies from him.

15 After the appellant was transferred to Villawood there was a conversation concerning family law proceedings on 21 March 2000. The appellant said that he was outraged, fuming, that his ex-wife had gone up to Townsville and was “in his bed now.” He also said it was time to call up the favour from Dave. Two days later the appellant called Ms Conway again and said he now wanted the favour doubled. She asked him what he meant and he said he also wanted Ms Oswald killed. He said that she no longer served the purpose and was no longer needed. In cross-examination the appellant denied these conversations took place.

16 Ms Conway eventually spoke to Dave in the United Kingdom about doing favours for the appellant. She told the appellant that Dave said that nobody would be doing anything for the appellant because he still owed money for favours that he had been doing back there for him. The appellant later told Ms Conway that he had rung Dave and everything had been fixed up and that he would give Ms Conway a description of Ms Oswald and Mr Wakeham to pass on to Dave. As it happened, Ms Conway had a friend in the Commonwealth Police to whom she was passing on this information.

17 In early April 2000, the appellant told her “God has provided.” The following day the appellant told her that he had met an inmate for whom he was going to pay the bond for his release. He had discussed with the inmate, named Basso, that Basso would kill Ms Oswald and Mr Wakeham. In the week between his release and leaving the country, Basso would travel to Mr Wakeham’s house and make it look like a drug related robbery gone wrong. In cross-examination the appellant denied this conversation took place.

18 After learning that Basso had been released, Ms Conway called the police and spoke to Det Small, and later Dets Laidlaw and Platt. Two days after Basso was released, the appellant asked Ms Conway to send Basso an SMS text message saying, “hope all goes well. If can’t get two, one, the woman, will do.”

19 A couple of weeks later, when it became apparent that Basso was not going to do anything, Ms Conway had a conversation with the appellant where he said that his solicitor had given him a number for a “hit-man” named Chris, that he had been trying to ring him, but could not get through. Ms Conway said that the appellant asked her to ring him and tell him the appellant was “kosher” and that everything was OK. Shortly after this, Ms Conway spoke to Det Small, who, on 27 April 2000 was at Ms Conway’s residence, when the appellant rang again. Ms Conway told the appellant that she had met with an associate of the hit man, M, who wished to meet the appellant at Villawood.

20 On 2 May 2000, Det Small returned and placed a telephone intercept on her home phone. In evidence, Ms Conway said that at some point before her phones were tapped the appellant told her he was going to use the codeword of “gathering legal evidence” to mean having Ms Oswald and Mr Wakeham murdered. This evidence was critical to the prosecution’s understanding of the relevant conversations that were recorded.

21 A conversation recorded at 10.28 pm on 2 May 2000, following the appellant’s first meeting with M, contains the following:

“A. Yeah, that’s absolutely fine, they’re going to see if they can find the evidence that’s needed. Um, obviously they wanted some sort of, you know, up front expenses …
…
C: Just one?
A: No, no, well, you know, it depends what sort of evidence they can get … but they certainly reckon they can get one, one person, maybe two.”

22 There was a conversation on 3 May 2000 at 7.03 pm and continued at 7.18 pm, which related to sorting out the issue of where the money would come from and that things had to be done quickly. There was also reference to the possibility that M might have been a “plastic”, which was apparently a reference to the possibility that he was a Federal Police officer. There was a discussion about Ms Oswald being with Mr Wakeham. Then the following was said:

“C: I don’t believe for making that mistake she deserves the retribution you’re about to take.
A: I have no choice because that’s the only way I can solve it.”

23 There was a further conversation at 10.34 pm on 3 May 2000 mainly concerning whether Ms Conway had placed the phone call the appellant wanted her to make.

24 A conversation at 5.33 pm on 5 May 2000 contained the following:

“A: Well, I was actually wanting you to make a call for me and to talk to these people … who are getting me the evidence and say, now look you know you promised this evidence this morning and it didn’t arrive, right.
…
A: I’d like to say to them, ‘Look guys, this is getting even more serious. We need legal evidence now, I’m prepared to pay a bonus for it.’
…
C: Well, I thought Wakeham was one of the main concerns to start off with, he’s still going to be walking around then.
A: Well, one step at a time, eh. One step at a time.”

25 A further conversation at 7.30 pm on 5 May 2000 had the appellant noting that ‘It’s gotta be a permanent solution.” He also told Ms Conway to tell the boys to hurry up. The appellant then received a phone call from M. After that conversation, the appellant called Ms Conway at 8.43 pm and told her that he had now spoken with them:

“I had a call on the other line when I was talking to you… and I said that you’d be in touch.”

26 He also tells her that apparently there were some “shadows” with Oswald.

27 A conversation at 11.09 am on 6 May 2000 had the appellant noting: “I’m a non-violent person. I don’t do the shooting.”

28 A further conversation at 6.18 pm on 7 May 2000 contained the following:

“C: Well maybe we should have given Linda a choice.
A: She has, she made it.
…
C: You didn’t tell her your plan of action if she …
A: Yes, she knows and she put it in affidavits what my plans were. (pause) Right. She’s filed affidavits back in the UK and in Australia that I would stop at nothing. I would hire hit men, I would kidnap the child. I would do this, that and the other, right.
…
A: … So she has to accept the consequences. And she knows what the consequences are. She’s already put that in affidavits.”

29 A conversation at 4.55 pm on 8 May 2000 shortly after the second visit to the appellant by M, records the appellant telling Ms Conway he has just had a visit from “these people gathering evidence”, and to expect a call in 15 minutes in relation to the paying of the money.

30 A conversation at 5.23 pm on 8 May 2000 records the appellant pressing Ms Conway to tell the men that the money would be guaranteed. He stressed that it was very urgent, because “they can do it now … but they may not be able to do it in half an hour.”

31 A further conversation at 6.24 pm on the same day contained the following:

“C: … They had her all lined up for an accident, but because … the money wasn’t there she’ll live another day.
…
A: So is he going to send someone tomorrow?
…
A: Well she was out shopping on her own you see … so it was the perfect opportunity … this opportunity may not come again … but she may not have finished shopping yet … the idea is to say look, if you can do it now, do it now.”

32 At 6.55 pm on 8 May 2000, the appellant is recorded in a conversation as telling Ms Conway that he was upset that the matter had not been sorted out that afternoon and there was a further conversation about sorting out the money.

33 On 9 May 2000 the appellant was arrested and taken into police custody.

34 Ms Conway gave evidence that the recordings of the conversations were as she remembered them with nothing deleted or edited.

Problems with telephone calls

35 There was an issue at the trial as to whether the recordings that were tendered were of phone calls that had actually been made. Apparently, telephone providers are able to provide what is referred to as “web trace” of a particular telephone service, which provides details of phone calls made to and from a particular number. The web trace of Ms Conway’s telephone service did not contain a record of some of the calls.

36 This matter was addressed in evidence given by David Finlay, an officer of the Optus telephone company. His evidence indicated that, on occasions, the Optus trace may not be complete because it would not record calls from a Telstra service, that are forwarded through more than one exchange.

37 The appellant complained through his counsel on the appeal that Mr Finlay was called to give evidence without prior knowledge to the appellant or his counsel that this would occur. Accordingly it was submitted that the trial had miscarried.

38 However, an examination of the transcript reveals that before Mr Finlay was called, the appellant’s counsel was aware that he was to give evidence and furthermore was granted an adjournment to confer with him during the course of his cross examination. The transcript does not otherwise reveal any application being made for an adjournment and, in my opinion, there can be no suggestion that the trial miscarried because of the evidence of Mr Finlay.

Undercover operative M

39 Undercover operative M, as he was described, gave evidence. On 2 May 2000, after receiving a listening device and attending a briefing, he went to the Villawood Detention Centre where he had a conversation with the appellant between 7 and 7.30 pm. The following was said:

“M: All right so matey what’s the go … if you’ve got any … problems with me, you may as well say something now, because otherwise I don’t want to waste my time …
A. Well you know what I want you to do is to get this thing sorted out …
….
M. And I’m certain that you want, you want them knocked basically
A. Mm
…
M. Who do you want knocked, two or one? …
A. I suppose probably one, one certainly, and maybe two you know …
…
A. And I’ve got to be very careful what I say to you because you know I mean you might be wired up.
…
A. In a perfect world I would say about getting evidence on at least two people …
M. Right, okay, evidence on those two people …
A. But if, if, I had a choice of one or the other, well I want to get evidence on the woman.
M On the woman. Which is, which is Linda, Linda.
A. That’s right.
…
M. So we’re talking about Linda, definitely one, and this Glenn Wakeham or whatever, the boyfriend, the current boyfriend, yeah.
A. Okay.
[then there is a conversation about money, where M asks for cash up front, and the appellant agrees to $10,000 up front and then another $10,000]
M. … how would you like it done? … Do you want any pain involved?
A. Listen, from my point of view I want to get the evidence, just the two … evidence of the woman principally …
M. It doesn’t matter what type of evidence, which way it goes, with the evidence.
A. As long as it’s legal, that all (unintelligible) … but you’ve got to understand that with, with gathering evidence on the woman that the daughter is going to be very close. All right?
M. And you don’t want any harm to the daughter?
A. Put it this way, that’s if, if, if, if, if something happened to my daughter, I don’t think life would be (unintelligible)
…
M. Now mate, … have you thought about when this evidence is gathered right? … that possibly a situation of police could come knocking on the door here … and I’m gunna be one person that they’ll want to speak to, right. I’ve got to have, know some pretty good answer.
[Then there is a conversation where the appellant tells M of an affidavit he has filed concerning Wakeham, a prostitute in Townsville and Wakeham sexually using her child]
A. What I’m saying is … I’ve employed you to find, is to find that person, if you possibly can, OK? So if anybody asks me why did you come, I’ll say I asked him to go and get the evidence.
…
A. I know that, I know if I screw up you’ll kill me, right, let’s not be stupid about it, a spade a spade. That’s what you do …”

40 On 4 May 2000, at 5.40 pm, there was a recorded telephone conversation between M and the appellant where M tells the appellant that his “missus” is no longer in Townsville and is coming down to Sydney. The following was also said:

“M. … We are going to neglect looking at number two Glen, OK.
…
A. All right well you have to go for the woman.
M. We’ll go for the woman, the business will be done for the woman, mate, no problems.
…
M. Once, once my mate does the business your daughter is going to be left on her own.
A. Yeh, well, it won’t be long I’m sure
…
M. So basically, yeh, what I’m saying is you got no problems with my mate doing it in front of your daughter. Doing the business in front of her?
A. I haven’t got the choice.
…
M. All right, well the situation could be a car accident or something along those lines mate.
A. You’ve got to do it. I mean (inaudible) what happens is she’s going to be in the Family Court tomorrow.
[On 5 May 2000 the appellant was before the Family Court for an appeal hearing].”

41 A further telephone conversation was recorded between M and the appellant at 7.35 pm on 5 May 2000. However, part of the conversation was not recorded due to a malfunction of the relevant equipment. M made notes of the missing conversation at the time to the best of his recollection and gave evidence of that conversation at the trial:

“The appellant told M that he had seen his daughter that day (at court) and that she was shy, introverted and bruised, and he wanted to swear an affidavit about this but was told not to bother. The following was also said:
M. Mate, there’s been two blokes with your missus. My mate thinks they are Federal Police – cops …
…
A. Nothing has changed … in any shape or form or whatever.
M. Yeh. No well, all I want to let you know is that the job will be done but it might be changed in how we do it.
A. Well, it’s just got to be done, hasn’t it?
…
M. All right, so it’s going to change and mate I think it’s going to get to the stage where we might have to poison her.
A. So be it.
…
M. Mate, don’t worry he’ll knock her …”

42 On 8 May 2000, at 4.15 pm, M visited the Villawood Detention Centre and had a recorded conversation with the appellant. They spoke about the money that had previously been organised but had not yet been paid. The following was also said:

“M. My mate’s ready, he could do it. And it makes it easier for him because your little daughter’s away. He can do the knock easier.
A. Mm.
…
M. What comes to say that we do the knock and come through you and there’s no money. What happens then? … That’s what gives me the shits, I don’t know whether you’re trying to double cross or what.
A. ‘A’ I’ve got the cash here, all right.
…
M. Well that’s right. Mate, that’s why Jacko’s ringing me in a flap, because there’s no money there. He’s not gunna do a knock for nothing.
A. No, no, no.”

43 In cross-examination M denied his job was to encourage the appellant to say he wanted a contract killing done, but instead he was to assess the situation and use his undercover skills to the best of his ability.

44 In re-examination, M said that in relation to the meetings and telephone calls with the appellant nothing had been deleted, added, or changed from the tapes.

The appellant’s evidence

45 The appellant gave evidence at his trial. In relation to some of the telephone conversations, he suggested that the tapes had been altered and others were fakes. He also sought to explain the reference to obtaining evidence as being a reference to obtaining evidence about Mr Wakeham so that he would have a basis for applying for joint custody of his daughter.

46 Evidence was given of the serious distress that the appellant experienced due to his incarceration and concerns in relation to his daughter. Records from the Detention Centre indicate that he had had suicidal tendencies for which he was put on medication. These problems are reflected in the telephone conversations on various occasions.

47 It is apparent that the jury did not accept the appellant’s account of the events and were satisfied beyond reasonable doubt that the recorded conversations were reliable and disclosed the elements of the relevant offences.

The appeal – submissions of counsel

48 At the hearing of the appeal, counsel for the appellant advanced a submission that the trial had miscarried because the trial judge had not adequately identified for the jury the relevant elements of the evidence of Ms Conway. In particular, it was submitted that the defence challenge to her credit, which was based on the loss of the $10,000 given to her by the appellant, was not put before the jury. The assertion was that Ms Conway had concocted the allegations against the appellant so that she could effectively “steal” the money. Criticism was also made in relation to his Honour’s discussion of the taped conversations. A submission was also made that there was fresh evidence, which was now available from Telstra which, if it had been available to the appellant at the trial, would have provided assistance in relation to his allegation that some of the telephone calls had been fabricated. Finally, counsel submitted that the appellant had been disadvantaged by a failure by the Crown to inform his counsel that Mr Finlay would be called and an indication given of the evidence that he would give.

Mr Finlay’s evidence

49 I have already referred to the position in relation to Mr Finlay’s evidence. With respect to the Telstra material, the Crown tendered evidence on the appeal, which indicates that the relevant material was included in the Crown brief, which was provided to the appellant’s solicitors before the trial. Accordingly, any submission that the material is fresh evidence, which could now be of assistance to the appellant, must be rejected.

The summing up in relation to Ms Conway

50 During his summing up, the trial judge gave the jury a detailed analysis of much of the evidence given at the trial. On a number of occasions during the summing up, reference is made to the evidence of Miss Conway and M and the content of the recorded conversations is also referred to. This was inevitable having regard to the nature of the Crown case. The judge was also careful to put before the jury the response, which the appellant made to that evidence and the challenge that had been brought to it in cross-examination. As I have indicated, a significant issue in the appellant’s case was that the money, which the appellant had given to Ms Conway, rather than being stolen by one of her employees, was wrongly taken by Ms Conway herself.

51 In his summing up, the trial judge drew attention to these matters and also provided a detailed account of the submissions, which the appellant’s counsel had made to the jury in the course of his address. Amongst other matters his Honour said:

“Mr Lucas, on behalf of the accused, reminded you that this trial is not a popularity contest. He said that the accused’s purpose was to come to Australia to try to get evidence to protect his daughter Sarah. Mr Lucas asked, can there be any doubt that the accused was concerned about Sarah and wanted evidence to try and protect her. Mr Lucas pointed out to you that there are no recorded conversations before 2 May 2000 and that in considering evidence of earlier conversations you should bear in mind that Debbie Conway is not in fact a decent person who just wished to help the accused, that the accused was in fact a very naïve person when it came to Debbie Conway.
Mr Lucas said that the question of whether Ms Conway stole the accused’s money is not irrelevant because you can look at that question to determine her credibility. Mr Lucas says the money was obviously not stolen by Kelly and suggests that Ms Conway had in her mind that she also had a chance to get hold of the money that the accused gave Basso.”

52 I have carefully reviewed the totality of the summing up. Having regard to the evidence, which comprised the Crown case and the nature of the appellant’s case, I am satisfied that the summing up by the trial judge was both fair and adequately reflected the appellant’s defence.

53 At the end of the summing up, the trial judge asked counsel whether there were matters that required further consideration. Counsel for the appellant raised a concern that, because it was central to both the Crown case and the defence case that the recorded conversations were in fact accurate recordings of the actual conversations, his Honour should be careful to remind the jury that they cannot act upon the tapes unless they were satisfied that they are in fact accurate recordings of what was actually said. Although his Honour believed that he had given appropriate directions, he acceded to the application and the jury were recalled and his Honour gave the following further directions:

“Mr Lucas asked me to make clear to you, if I have not already made it clear, one matter. The one matter is this. As I have told you the Crown relies upon the conversations directly, these conversations, the four of them, between the undercover operative M and the accused to prove the soliciting with intent to murder. If you are not satisfied beyond reasonable doubt that the portions of those conversations that the Crown must rely on to prove the two solicitations as set out in the indictment, if you are not satisfied beyond reasonable doubt that those conversations occurred then it is your duty to acquit the accused. But put another way, if you have a reasonable doubt that those conversations ever took place in those terms at that time, you should acquit the accused. Is that clear enough”

54 Having already completed his summing up, these further directions by his Honour must have assumed significant importance in the minds of the jury. Although I am satisfied that the summing up was balanced, these further directions ensured that the appellant’s position was clearly and adequately put before the jury.

55 I have reached a similar conclusion in relation to his Honour’s summing up with respect to the individual tape recordings. It is plain that if this evidence was to be adequately explained to the jury his Honour must refer to it. That reference had to include a reference to the various conversations allegedly recorded which were of relevance to the Crown case. A reading of the summing up confirms, in my opinion, that it was fair but if there was any need to ensure balance, this was again provided by the additional directions which his Honour gave and to which I have already referred.

The appellant’s written submissions

56 A number of written submissions were filed by the appellant together with submissions by way of “commentary” on the Crown submissions. The submissions are lengthy and in many places repetitive. Some lack clarity. However, I have attempted to identify each element about which the appellant complains and determine whether it has substance.

Entrapment

57 The appellant submits that M was an agent provocateur and at the time he was alleged to have committed the offences there was no person in Australia who could, in fact, have carried out any possible killing. Without the visit of M to the Villawood Detention Centre, the appellant says he would have had no opportunity to commit the crime. There was no-one else he could have engaged to organise the undertaking.

58 It is not apparent how the appellant says that he was entrapped nor the evidence on which he relies to support the submission. The evidence from M was of conversations he had with the appellant during which the appellant expressed his wish, upon which he had already determined, to harm the proposed victims. Entrapment involves “as a necessary element the idea that an accused person has been induced to commit a crime which he or she otherwise would not have committed or would have been unlikely to commit” R v Sloane (1990) 49 A Crim R 270 at 272-3. This was not the case here.

59 The appellant accepts that Australian law does not recognise a defence of substantive entrapment. However, if the relevant circumstances exist, evidence obtained through means which themselves involve the commission of an offence or are otherwise improper may be excluded: R v Ridgeway (1995) 78 A Crim R 307. I can identify no capacity for the application of those principles in the present case. Furthermore, the submission that there was an entrapment is not consistent with the defence that the appellant put forward at the trial and which he seeks to sustain on the appeal: ie that he did not commit the offence and his conversations were related to other matters. In my opinion, this ground has no substance.

60 When considering the admission of this material at the trial, his Honour also considered the provision of s 138 of the Evidence Act. Because the evidence was, in my opinion, properly obtained, consideration of the section is unnecessary. In any event, I can discern no error in the approach which his Honour took to the application of the section in the circumstances of this case.

Use of recordings

61 Under the heading “Use of recordings”, the appellant submits that, because the evidence of the conversations was illegally obtained, the trial judge failed to properly consider whether it should be admitted into evidence having regard to the provisions of s 138(1) of the Evidence Act 1995. The factual basis for the appellant’s submissions is not clear. Warrants to permit that evidence to be obtained were apparently issued and the trial judge found that the evidence was lawfully obtained. His Honour found that “all the telephone intercepts and the recordings of the face to face conversations were authorised by appropriate warrants.”

62 The matter was the subject of a voir dire hearing and judgments by his Honour on 19 September and 25 September 2001. Those judgments are comprehensive and consider the relevant principles and apply them to the factual matters found by his Honour. His Honour said:

“I will secondly deal with the question of the listening device and telephone intercepts and their transcripts. The voir dire question before me involved determining whether the pre-conditions for the interception have been satisfied. That is to say a valid authorisation, and that the investigation was carried out in accordance with that authorisation. I am satisfied that there was proper authorisation for these intercepts in accordance with the warrants issued” (T 25/09/01 p 15).

63 In these circumstances, the complaint that his Honour failed to appropriately apply the principles found in s 138 of the Evidence Act is, as with the submission in relation to entrapment, difficult to understand.

64 His Honour also considered the challenge which the appellant made to the authenticity of the recordings and held, in my opinion correctly, that any question of inaccuracy or falsification of a recording was a matter for the jury having regard to all the relevant evidence.

Vulnerability of the appellant

65 Under this heading, the appellant emphasises that, prior to the police operation, he had been put on suicide watch and was under strong medication. He says as a consequence he was a vulnerable person made so by his concern as to the welfare of his daughter who was then in the company of a person whom the appellant believed to be a sexual deviant. In these circumstances the appellant submits that, being vulnerable, the evidence obtained by the police operation should have been excluded from the court. He refers to the decision of the High Court in Ridgeway and R v Mack, a decision of the Canadian Court of Criminal Appeal (1988) 44 CCC (3d) 513.

66 I can find no substance in this submission. There is no question that the appellant was burdened by concerns for his daughter’s welfare, whether real or imagined, and the fact of his incarceration at the time he committed the relevant offence. It may be that these matters caused him to lose his balance leading to the commission of the offence. However, there is no suggestion, either at his trial or on this appeal, that the appellant was suffering from any condition affecting his capacity to commit the relevant offence. Instead, his defence has been that he did not intend harm to the prospective victims and his conversations were innocent and have been misunderstood as having sinister connotations.

Use of transcripts

67 I have previously considered some aspects of the appellant’s concerns in relation to the use of the recordings of various conversations. In his written document, the appellant again challenges the accuracy of the recordings. That issue was considered by the jury. Concerns are also raised in relation to the web trace and the fact that it does not record all of the conversations with Ms Conway. I have previously discussed that matter. With respect to the conversation with M, which was not adequately recorded, M utilised his contemporaneous note to give evidence as to the content of that conversation and, accordingly, that evidence was, in my opinion, correctly admitted. Other transcripts of the recordings were not challenged as an accurate record of the conversation.

68 His Honour was careful to confine the jury’s use of transcripts and, in relation to the recordings and transcripts, gave the following directions:

“The recordings which the Crown relies upon between the accused and Debbie Conway and more directly, the accused and the undercover operative Mal, you will have with you in the jury room as exhibits H and J in the form of those CD’s and I will ensure that there is some form of CD player in there so that you can play them again if you wish to do so.
Although I told you during the course of the trial that in the ordinary course of events you and I do not get to see documents marked for identification. The bundle of transcripts which is marked for identification ten is an exception to that rule. Those transcripts have not been marked as an exhibit in the trial as have all the other exhibits that you will have because as I said earlier, the transcripts themselves are not the evidence, the evidence is the actual recordings themselves that is to say the sounds that you hear on the recording. I will repeat part of the important direction that I previously gave you in relation to these transcripts. The evidence of the conversation which the transcript purports to describe is not what the transcript says but rather the sounds on the recording itself. As I said earlier, the transcript is simply an attempt by somebody to record what they think can be heard on these recordings. You might think that the transcripts are substantially accurate, although not completely accurate. What is important is what you believe you can hear on the recordings and not what the person who prepared the transcript thought that they could hear. The transcripts were given to you simply to assist you in following what is said on the recordings themselves. As I said to you earlier, you must not form any conclusion of fact or draw any inference against the accused on the basis of anything contained in any of those recordings unless you are satisfied that the particular words can be heard on the recordings themselves. If the transcript suggests that the recording contains words which are said by the Crown to be against the accused, or you think are against the accused, then you should disregard those words unless and until you are satisfied that the recordings actually contain those words.
There is one exception to this, and that is the recording of the telephone call between the accused and Mal on 5 May 2000 as per Tab B in the folder. That has in fact been tendered and is a separate exhibit, exhibit E. You will recall that in that conversation or during that conversation there are a series of what sounds like electronic noises where words are obscured and that the undercover operative said that he was obliged to supplement the words that can be heard with notes that he took. He said that in parts of that transcript, exhibit E and Tab 12 comprise his reconstruction of what was said where the actual words uttered cannot be heard. You will remember that evidence was given by the undercover operative that because of that poor recording, he said we, that is to say the police, took it to a technical section to see whether that recording could be enhanced, but that they were unable to enhance it and that he was unable to explain why those electronic noises appear on that recording. He said that he made those notes of what was said only a matter of minutes after the conversation actually took place.
In relation to that particular recording and that particular exhibit, exhibit E or Tab 12 if you like, I give you this direction, if you think that any of the words which cannot be heard are critical then you must be satisfied that they were in fact spoken as alleged by the undercover operative before you can take them into account against the accused. Please remember that the accused says that that conversation simply did not occur. The accused has told you that it is not his voice on that recording and that that particular recording is a complete fabrication.”

69 In my opinion, in the circumstances, these directions were adequate and appropriate.

Interim rulings

70 The appellant raises a number of matters under the heading of “Interim Rulings”. They include late delivery of documents by the Crown, late disclosure of the existence of Federal Police Superintendent John Draffin, the operation of the Law Enforcement (Controlled Operations) Act, 1997, questions of whether the transcripts were substantially accurate, admission of his ERISP, email-plan B and witness coaching.

71 Many of the matters raised under this heading involve an exercise of the trial judge’s discretion to admit evidence. The appellant was represented by experienced and competent counsel at his trial and it is not apparent that, by reason of the time at which documents were disclosed and other information given to the appellant’s defence lawyers, any difficulty arose that would require this Court to intervene.

72 With respect to the Law Enforcement (Controlled Operations) Act, 1997 the appellant submits that a necessary authorisation was not obtained, although he does not articulate how that has infected the trial process. The “Controlled Operations Act” does not exhaust the means by which the police can investigate allegedly criminal conduct. In any event, his Honour was required to consider whether or not the evidence could be admitted in the exercise of the discretion provided by s 138(1) of the Evidence Act. I cannot identify any error in his Honour’s consideration of these matters.

73 With respect to the admission of the ERISP the appellant complains that, being a citizen of the United Kingdom, he had particular rights pursuant to the Crimes Act 1914 (Cth) s 23L and 23P whilst he was in custody. He submits that these rights were ignored by the NSW Police and accordingly the interviews were inadmissible.

74 His Honour the trial judge dealt with this submission concluding that if there was a difficulty, it arose only in relation to Commonwealth crimes. The appellant, having been charged with a breach of State legislation, the Crimes Act 1914 (Cth) was of no relevance. In my opinion, this conclusion was correct.

75 The reference to “email-plan B” is a reference to a ruling made by his Honour to exclude from the evidence an email said to emanate from John Widdoes. During the course of the cross-examination of the appellant, reference was made to plan B. His Honour’s exclusion of the email from the evidence did not prohibit reference being made to Plan B and so far as I can discern (the transcript references were not provided by the appellant) no objection was taken to the cross-examination when it occurred. The application made for the discharge of the jury was in my opinion correctly refused by the trial judge.

76 It is suggested that his Honour’s ruling “represents an exhibition of bias against the appellant.” In my opinion, this submission has no substance and should be rejected.

77 With respect to the alleged coaching of a witness this submission is made in relation to Ms Conway. She was asked about this matter when cross-examined and, accordingly, the jury was able to assess the veracity of Ms Conway for themselves. I can find no substance in this ground of appeal.

Judge’s summing up

78 The appellant makes a number of criticisms of the summing up of the trial judge. Some of those criticisms have been identified by counsel in the oral submissions and it is unnecessary for me to refer to them again. Consideration of the summing up reveals, in my opinion, a careful analysis by his Honour of the relevant evidence and the response which the appellant made to it. I am satisfied that the summing up was appropriately balanced.

79 Complaint is also made that his Honour, by providing guidance on lying, raised in the jury’s mind a concern that the appellant may have lied. The appellant asserts that he did not tell lies on any occasion and, accordingly, his Honour was in error in providing the usual direction in relation to that aspect of the matter.

80 In my opinion, this submission has no substance. The Crown case was based upon the proposition that the appellant had lied on a number of occasions in relation to relevant matters. Accordingly, a direction was called for. It did not presuppose any opinion from his Honour as to the veracity of the appellant’s evidence but a reminder to the jury of the way in which it should approach the evidence if it concluded that the appellant had lied.

Hearsay – The evidence of Mr Finlay

81 A further submission is made that the evidence of Mr Finlay was hearsay and should have been excluded. This submission is made because apparently it appeared in the course of his cross-examination that Mr Finlay was giving evidence about the operation of the Optus equipment, which was in part based on knowledge he had been given by another person in Optus.

82 The difficulty with this submission is that when it became apparent that Mr Finlay’s knowledge was in part based upon information given to him by others, no application was made to have the evidence struck out nor was any other application made. The matter was simply not raised.

83 Of course it would have been open to the Crown to call other persons to give evidence about exactly the same matter. Furthermore, it was open to the defence to call a witness to contradict the testimony of Mr Finlay if it was in fact disputed. However, no complaint was made and it must be assumed that experienced counsel considered that the identified difficulty was of no concern. The fundamental issue was that the web trace was not necessarily determinative and did not establish that a call had, or had not, been made. Accordingly, as the evidence did not purport to prove that a conversation had in fact occurred, this being proved by other independent evidence, the matter was of little consequence in the trial.

Book - “Secrets of the Jury Room”

84 One of the jurors at the trial was a professional journalist. He has since published a book, which relates his experiences as a juror.

85 The appellant now seeks to investigate the mind of the author and asks that the Court consider sections of the book, which he submits reflect the jury’s consideration of relevant parts of the evidence. An application was made on 16 September 2005 that this Court require the author of the book to attend to give evidence at the hearing of this appeal. That application was rejected.

86 In my opinion, it would not be permissible for this Court to investigate the mind of the juror either directly or by consideration of anything published in the book see R v Emmett; R v Masland (1988) 14 NSWLR 327; see also Richard John Sinclair Laws (No 2) (2000) 116 A Crim R 70.

87 This submission is rejected.

Error on the face of the indictment

88 The appellant complains that the form of the indictment could not support the charge for which he was convicted. The indictments were in the following form:

“That (the appellant) between 2 May and 8 May 2000 at Villawood in the State of New South Wales, did solicit an undercover police operative with the assumed name of ‘M’ to murder Myra Linda Oswald/Glenn Stuart Wakeham.”

89 The appellant’s complaint is that, because the alleged arrangement was that M would engage a person named “Jacko” to effect the murders, the indictment did not accord with s 26 of the Crimes Act. The argument, as I understand it, is that the indictment should have referred to “Jacko” as the person solicited.

90 I do not accept this argument. Even though the understanding may have been that M would engage another to carry out the killing, the relevant offence was committed once the arrangement between the appellant and M was effected (King v The Queen (1986) 161 CLR 423). The person who M might engage to carry out the necessary physical act did not have to be named in the indictment.

Other matters

91 I have indicated that the appellant provided the Court with written material. It includes a document headed “Commentary on Crown Submissions”, which takes issue with various submissions made by the Crown in a written document. That document and the appellant’s observations on the Crown submissions join issue with various propositions advanced by the Crown. Those matters are raised in the consideration that I have already given the appellant’s submissions and it is unnecessary to further refer to them.

92 Further documents were received. One was headed “Additional Representations” and relates to the publication by the juror. I have already considered that matter. Further documents headed “Grounds of Appeal” and “Additional Representation” were also reviewed. All of the written material provided by the appellant has been considered in preparing these reasons.

Conclusion

93 Although the appellant’s counsel advanced only confined grounds of appeal they have been significantly expanded by the appellant in his written submissions. I have reviewed the entirety of those submissions and considered the evidence tendered at the trial. It is apparent that the jury accepted the evidence of Ms Conway, which enabled the various conversations to be placed into an appropriate context and the appellant’s intentions understood. The jury also accepted the integrity of the recordings of various conversations. Once those conversations are understood, with the benefit of Ms Conway’s evidence as to the “code” the appellant used, the Crown case can only be described as strong. I can find no basis for this Court to intervene.

Sentence

94 Application was made for leave to appeal against sentence. It was not supported by written submissions and the Court was not directed to any written submissions on this aspect in a letter from the appellant’s solicitors dated 28 November 2005, which identified the documents the Court is asked to consider in the appeal.

95 The offences of which the appellant was convicted were serious, carrying a maximum penalty of twenty-five years imprisonment. They were deserving of a significant term of imprisonment, both as punishment of the appellant and to fulfil the need to provide specific and general deterrence. I can discern no error in the sentence which the trial judge imposed.

Orders

96 In my opinion, the appeal should be dismissed. I would grant leave to appeal against sentence and dismiss that appeal.

97 HISLOP J: I agree with McClellan CJ at CL.

98 ROTHMAN J: I agree with McClellan CJ at CL.

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Amendments
Since delivering judgment in this matter the Court has become aware that matters of sentence of the appellant were dealt with by this Court on an earlier occasion. Accordingly, the reference to an application for leave to appeal against sentence at paras [3], [4], [94] and [95] is redundant. As the matters of sentence have already been disposed of these proceedings were concerned only with the appeal against conviction.

Accordingly, the appropriate order of the Court is:

1. Appeal dismissed.