R v Brennan & Sipple
[2024] QSCPR 27
•23 MAY 2024
QUEENSLAND COURTS AND TRIBUNALS
TRANSCRIPT OF PROCEEDINGS
© The State of Queensland (Department of Justice and Attorney-General). Apart from any use permitted under the Copyright Act
1968 (Cth), all other rights are reserved. Providing a copy to a legal practitioner for the purpose of obtaining professional advice is
considered fair use under section 43(2) of the Copyright Act 1968 (Cth) and does not require copyright release. For all other uses,
you must not copy, modify or distribute this material without the written authority of the Director, Recording and Transcription
Services, Queensland Courts.
SUPREME COURT OF QUEENSLAND
CRIMINAL JURISDICTION
COPLEY J
Indictment No 1011 of 2023
THE KING
v.
JORDAN ROMAN BRENNAN Defendants BRENDAN JOHN SIPPLE BRISBANE
10.38 AM, THURSDAY, 23 MAY 2024
DAY 1RULING 23052024/BSD13/Copley J
HIS HONOUR: Well, I will give my ruling. It is going to take a few minutes because I am going to read it. The accused men, Jordan Brennan and Brendan Sipple, are to stand trial on Monday 27 May 2024. Each is to be tried on a count of
attempting to possess a commercial quantity of an unlawfully imported border-
5 controlled drug contrary to section 307.5(1) of the Criminal Code (Commonwealth). Each count is pleaded to have occurred between 2 June 2020 and 13 June 2020. They have not been indicted on the same count; rather count 1 concerns Brennan only and Count 2 concerns Sipple only.
10 On 20 May 2024, both accused applied pursuant to section 590AA of the Criminal Code (Queensland) for a ruling that evidence, broadly identified in their counsels’ joint outline of submissions, be excluded from the Prosecution case against each of them. The Prosecution has provided particulars which contain, among other things, particulars of the conduct that each accused allegedly engaged in in his attempt to
15 possess a border control drug, which the Prosecution alleges each believed to be in a particular shipping container stored at or near the port of Brisbane.
In relation to Brennan, the conduct relied on is his attendance at or in the vicinity of the port and things done there with Sipple on 2, 3 – sorry, things done and/or said
20 there with Sipple on 2, 3, 10, 11 and 12 June 2020. And also his attendance there and actions done in the absence of Sipple and things he said in the absence of Sipple on the 6th of June 2020. In relation to Sipple, the conduct relied on is his attendances at or in the vicinity of the port and things he did there or said or was a participant in conversations with Brennan on 2, 3, 10, 11 and 12 June 2020.
25
As I understand the Prosecution case, the Prosecution will largely be relying on a combination of surveillance evidence, CCTV footage, intercepted and recorded telephone calls, and recorded face-to-face conversations Brennan and Sipple had between themselves in an endeavour to prove count 1 against Brennan and count 2
30 against Sipple.
The evidence to which objection is taken falls into two categories. The first category is evidence of a series of intercepted communications that allegedly revealed the accuseds’ involvement coincidentally in an earlier extraction of cocaine from another
35 shipping container. The communications occurred on 6, 10, 11 and 12 June 2020. Apart from the intercepted communication of 6 June 2020, which involved Brennan and a person whose identity is not known to the Prosecution, all these other communications occurred between the accused and only the accused.
40 The second category of evidence is surveillance evidence of movements and actions undertaken or performed by both accused men between 9 May 2020 and 12 May 2020. Concerning this second category, Mr Holt KC, who represents Brennan, acknowledges the exclusion of the surveillance evidence depended upon the exclusion of the intercepted communications evidence – meaning that if the
45 argument for exclusion of the intercepted communications failed then the argument for the exclusion of the surveillance evidence would necessarily fail too. Mr Underwood, Sipple’s counsel, took the same position. So it is not necessary to refer to the surveillance evidence in any detail at all. It is necessary though, to set out the evidence derived from the intercepted communications.
23052024/BSD13/Copley J
And I am not going to read from MFI 1 and the schedule of facts that the AF –
Australian Federal Police prepared, from paragraphs 106 – three, rather. Through to
111:
5
At 9.46 pm on the 2nd of June 2020, Brennan, in a telephone call to a person that the Prosecution cannot ascertain the identify of said –
10 And I might, gentlemen, just leave out some of the expletives because we do not need to read all of this out. It is just the gist of it.
MR TRIGGER: Thank you, your Honour.
15 MR HOLT: Thank you, your Honour. HIS HONOUR:
We left, bro. We left that night. Cut half the floor open with a
20 four-inch grinder – a hand grinder with a battery. Wouldn’t even go through it. The cunt told us the wrong thing. If we had a nine- inch grinder with a power cord with continuous power, would have
cut straight through it. Aluminium plates, the whole thing. We
missed out on 90 kegs. We took 400 kegs. Unloaded them all into
25 a wheely bin and put them all into the back of a van and took off. Then we clocked onto the cypher. And never spoke to him again. Changed our names. Moved countries. Did it for a tonne, bro.
That’s a fair bit.
30 So just pausing there, in that conversation which is Brennan is having, he is speaking about something that he did with somebody else – if he was to be taken literally, that involved using a particular implement which was not adequate for the task, which
meant that they missed out on 90 kegs. Is he speaking there literally or figuratively?
A keg is a – something in ordinary language that some people might think is a
35 receptacle for containing liquid. But it would seem that the Prosecution case is that keg is some sort of a euphemism or a slang term for kilograms. Well, who knows? But often times context and subsequent conversations can further illuminate.
Now on the – at 10.36 on the 10th of June 2020, Brennan said to Sipple:
40
I’ve still got this saved in my phone just to remind me.
And Sipple said, “Oh.”
45 And Brennan said:
Just look at it.
And Sipple said:
23052024/BSD13/Copley JI dreamt about it the other day. That was like where we were meant to cut, was like real thin.
5 Brennan said:
Do you know what the thing is here? Look how many packed up was there, right? One, two, three, four, five high.
10 Sipple said:
That was the ones they put in there.
Brennan said:
15
Yeah. I don’t know if they put it in there but I’m telling you this right now, there’s a lot more than 90 there. Look how many is there. Each one of those is five stack. One, two, three, four, five and 10 of 15. Fifteen, 30, 45, 60, 90. Ninety is about there.
20
Sipple says, “Yeah.”
Brennan says:25 So that shows on some jobs there’s two or 300 and put in a box more. That’d be too much to extract, bro, in a situation like this. You couldn’t do it. I mean, you could but you literally need to have it out there fast and have to park the car up, bro. Have to be a suitable car that’s got a power shutting door. Three hundred
30 weighs the car down heaps, bro. It changes the whole dynamic of things.
Pausing there. That conversation tends to put a different light on an earlier reference about kegs. At 2.22 am on the 11th of June, Sipple said:
35
I still can’t believe we went in there that day with them grinders.
And Brennan said, “I know.”
40 At 2.29 am on the 11th of June, Brennan said:
I can’t believe we found the last one, bro. If we didn’t find that last one last time, we wouldn’t be continuing with this job because we’d think it was just, like, like, there’s no point.
45
Sipple interrupted and said, “A gee-up.”
And Brennan said:
23052024/BSD13/Copley JBut the fact that we found the last one was so close to fucking – to getting in the paper. It just kept us fucking invested in this one.
And Sipple said:
5
We nearly had seven bikkies each, bro.
Again, I stop to notice that if that is to be taken literally, they failed to achieve possibly something like seven biscuits. But that would seem to be implausible.
10 Brennan says:
That’s ridiculous –
Not meaning what I said, but what had occurred before:
15
That’s actually a joke.
Sipple said:
20 We were one nine-inch grinder away from it. Unbelievable. Can’t believe it.
Brennan said:
25 Well, don’t live with your regrets, brother.
Sipple said:
It’s not a regret.
30
Brennan says:
It would’ve been mad.
35 Sipple said:
It was like an eye-opener. Like wake up, mate. This is what you can make. Pull your head in.
40 Brennan said:
It is, bro. One hundred per cent. If we had a nine-inch grinder from the start, put it this way, we had so many hours there that if we’d had the correct tools from the start, regardless of what they
45 were, brother that was ours.
Sipple said, “Hundred per cent”. Brennan said:
That’s a big earn, bro.
23052024/BSD13/Copley J
Sipple said:
Brother, that’s a big earn, lad. A big, big earn.
5
Then at 2.31 on the 11th of June 2020, Sipple said:
Brother, I think these fellas are – these cunts are working with the
Colombians.
10
Brennan said, “You reckon?” Sipple said:
I’ve just got this hunch that it is, aye?
15 Brennan said:
I wouldn’t say 100 per cent, but.
And Sipple said:
20
How did them cunts land bricks? I didn’t say 100 per cent, I’ve got a hunch.
Now, according to the admissions document, admission number 94 is proposed it
25 will be this:
That CCTV footage depicted Brennan and Sipple entering the container yard at 4.10 am.
30 And admission number 95 is:
At about 5.20 am, Brennan and Sipple return to the van.
And admission number 96, and following, concerns the vans various movements in a
35 southerly direction towards the Gold Coast. But prior to those movements, at about 5.19 am on the 12th of June, Brennan said to Sipple:
I’m really pissed off that you’ve done these two with me. And, like, you’ve done them with me and you’ve got nothing to show for them,
40 brother. I want to make these cunts fucking give you something, bro. They’re salvos, bro. They make fucking stacks.
Brennan and the other fellow says, “Yeah”. And then the conversation has Brennan saying, he goes:
45
The boys should be getting paid too. The other guys to locate the box, they’re getting paid to locate it.
And he goes:
23052024/BSD13/Copley J
That’s a separate job to extracting itself. So bro, these cunts should throw us some paper just for fucking there twice, finding the
boxes twice, trying to get the concealing open. Imagine if we got
5 that fucking massive one open and there was nothing in there. I would’ve lost my shit.
At 5.23 on 12 June, Sipple said:
10 Bro, my heart went when we found it. I was like, fuck.
And Brennan said:
Just got to stay calm, but we worked perfectly, bro. Even getting
15 out there, we didn’t even get noticed. You know what I mean? He
said 20. There was supposed to be 20 on each left and right. That’s a basic, bro. Like, the last one they had, you won’t find it, you know what I mean? Unless they scan the whole thing, and they see an anomaly in the floorboards. In which case, we would’ve
20 went in there. You would’ve seen it all ripped up and they would’ve known that, you know what I mean?
“Yeah”, says Sipple. And then at about 5.40 am, Sipple says:
25 Tell them to send another one of them ones in the fucking –
And Brennan says – interrupts and says, “walls”. And Sipple says, “Yeah”. And
Brennan said:30 Yeah. But just put a key on the outside so you can punch it out – or punch it out and make it a bit easier. Lock it with the key. Push one panel up and have a safe with the key and just do it like that.
And Sipple said, “You reckon?” As a question, it seems. And Brennan said:
35
It was easy to pump up, but they do it the way they do it for a reason.
And Sipple is alleged to have said:
40
I reckon the floor ones the go.
And then Brennan goes on to say:
45 Yeah. But see these fellows are idiots. They told us last time to go there with a hand grinder. We got in there and it was as strong as.
Sipple said that they were “dumb”. Brennan said that they smashed so much. Sipple interrupted and said they were “arrogant retards”. And Brennan said:
23052024/BSD13/Copley J
They smashed so much product but they’re just as dumb as.
Sipple said that:
5
None of them get on the rack.
Brennan said:
10 Oh. Don’t they get on it?
And Sipple said:
No. I’ve never met one that gets on. They all smoke weed.
15
And Brennan said:
No. But the actual proper cartels. Like, these probably aren’t even proper cartels, bro. They’re probably just cunts that can find mad
20 product and have someone like everyone’s unintelligible in South America, bro.
The Prosecution argues that this evidence is admissible on the basis or bases that (a) it bears upon or is relevant to whether there is a rational inference available that each
25 accuseds’ actions or conduct in relation to the count he faces was engaged in for any purpose other than attempting to possess the border-controlled drug, believed to be in the container. And (b) it bears upon or is relevant to what each accused man’s
intention was at the time it describes as the relevant point in time, namely, at the time
those conversations occurred.30
Looked at this way, the Prosecution says the evidence objected to is circumstantial evidence relevant to each accused man’s state of mind. The Prosecution disavows any reliance upon the evidence objected to as similar fact evidence. The Prosecution
says that some of the recorded conversations occurred as the accused conducted35 surveillance in their preparation – or in preparation for their attempt to possess the border-controlled drug in June. And were coincidental to their discussions and surveillance in preparation for the attempted possession that they are indicted for.
Some of the conversation occurred immediately after returning from the container
40 after having attempted to enter it and the Prosecution says that conversation is inextricably intertwined with their discussions about the earlier actions performed – sorry, that conversation is inextricably intertwined with their discussion about the actions performed only minutes earlier. The Prosecution relies upon Harriman v R [1989] 169 CLR 390 at 594, at 609, at 613 and at 632.
45
Mr Holt contended that the intercepted communications evidence was in substance similar fact evidence, and it did not meet the Pfennig Test. Concerning the Prosecution argument that the evidence is relevant to what I have called Issue A, which is its bearing upon or being relevant to whether there is a rational inference
23052024/BSD13/Copley J
available that each man’s actions or conduct in relation to the count he faces was engaged in for any purpose other than attempting to possess the border-controlled drug he believed to be in the container, Mr Holt says, no one contends or will
contend that there is any truly innocent explanation for the accuseds’ repeated
5 presence at the – presences at the port. And that no one contends or will contend that their presence or presences was or were connected with some matter other than drugs, for example, stoves or tobacco, or some other product.
Even if it is not regarded as similar fact evidence, which Mr Holt says is a fiction or
10 is an untenable characterisation of it, his contention is that where the evidence reveals the commission of another offence – another uncharged offence, Harriman stands for this proposition: that the only circumstances in which one can avoid the Pfennig Test is if the evidence is admissible as part of the res gestae, the transaction the subject of the count. For this, he relies on the judgment of Justice McHugh at
15
some aspects, such as what he said was the unfeasibility of contending that any of the
632 to 633 in Harriman. Mr Underwood advanced the same position and amplified to enter the container constituted evidence of the res gestae. 20 In my view, the contention made by Mr Holt that the only circumstance in which one can avoid the Pfennig Test is if the evidence is admissible as part of the res gestae is not correct. And so I will now refer to some passages from Harriman. When I say, it is not correct, I mean to make it a little clearer, it did not represent the views of all
the members of the High Court. And there has been at least one case since that case
25 where there have been observations made that are not consistent with the contention that Mr Holt has put to me. So dealing with Harriman, in that case Justice Toohey said, in the last paragraph on page 607, if any – if you gentlemen want to read along:
There is an underlying principle –
30
Justice Toohey said, “That of” – well, I should say quote:
There is an underlying principle that of relevance, which in some cases must be the focus of inquiry. This is such a case. The first
35 question which arises…is whether the evidence...was relevant to any fact required to be established by the Crown…if the evidence was so relevant only then does it become necessary to consider
whether it was inadmissible by reason of any of the exclusionary
rules or whether its admissibility was governed by any of the
40 special rules that have been developed such as those relating to propensity and similar facts.
Unquote. Justice Brennan, at 592 to 593 said, quote:
45 The argument against admission of the disputed evidence is simply that that evidence revealed the commission…of offences other than those on which he stood charged…
Over the page, his Honour said:
23052024/BSD13/Copley J
The disputed evidence is not evidence of similar facts.
Further down that – unquote, further down that paragraph, his Honour said:
5
However, the two principles which apply to evidence of similar facts apply in the mutatis mutandis to evidence revealing other offences which are not similar to the offence charged: The first principle…is that the evidence…is not admissible if it shows only
10 that the accused had a propensity or disposition to commit crime or crime of a particular kind, or that he was the sort of person likely to commit the crime charged. The second principle, which is a corollary of the first, is that the evidence is admissible if it is relevant in some other way, that is, if it tends to show that he is
15 guilty of the crime charged for some reason other than that he has committed crimes in the past or has a criminal disposition.
Unquote. Further down on page 593, his Honour said:
20 Evidence that an accused has committed other offences of the same or similar character is inadmissible unless the evidence is of such probative force in the instant case as to be an affront to commonsense not to admit it. Or, to put it another way, unless the probative force of the evidence clearly transcends the merely
25 prejudicial effect of showing that the accused had committed other offences.
Unquote. Further down on page 594, Justice Brennan said:
30 However, where evidence does show more than the mere commission of another offence or predisposition to commit an offence – and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion. If it’s a matter of human experience, the evidence tends
35 to establish the offence charged or a fact in issue otherwise than by showing merely the commission of another offence or a propensity to commit the offence, the evidence is admissible.
Unquote. And I pause to observe that I remember Mr Holt attributed significance to
40 the sentences which follow. I have not overlooked that in my consideration.
Now, in Roach v R (2011) 242 CLR 610. The High Court considered an argument that relationship evidence – which in that case consisted of evidence of other assaults than the charged act, was only admissible if it satisfied the Pfennig Test for the
45 admissibility of similar fact evidence. In the reasons of Chief Justice French and Justices Hayne, Crennan and Kiefel, at paragraph 12 they said:
The first requirement which must be fulfilled, for evidence to be admissible, is that it be relevant. The question as to relevance is
23052024/BSD13/Copley J
whether the evidence, if accepted, could rationally affect the
assessment by the jury of the probability of the existence of a fact in
issue. It may do so indirectly. As Gleeson CJ observed in HML v
The Queen, evidence may be relevant if it assists in the evaluation
5 of other evidence.
And then at paragraphs – from paragraph 40, this was said by their Honours:
…it was put that in cases involving domestic violence,
10 "relationship" evidence can only, in truth, be admissible as evidence of propensity. The Court of Appeal appears to have been of a similar view…Such a view may confuse evidence that may show propensity with evidence used in proof of the offence charged.
15
In HML v The Queen, Gleeson CJ observed that it is necessary to consider Pfennig in its context. It was a case about the fact of propensity as circumstantial evidence in proof of the offence charged. It was not a case involving evidence that happened to
20 show propensity. In such a case, if the evidence has other, sufficient, probative value, it may be necessary to give directions to the jury as to its specific use. If evidence is admissible on one issue, the fact that it may be logically, but not legally, relevant to another issue does not render it irrelevant and therefore
25 inadmissible on the first issue.
The purpose of the evidence in Pfennig may be contrasted with that for which the evidence in question was tendered in the present case. Here the complainant gave direct evidence both of the
30 alleged offence and of the "relationship" evidence. The latter evidence, which included evidence of other assaults, was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant's conduct on the day of the offence would not appear
35 "out of the blue" to the jury and inexplicable on that account…
It followed the Prosecution and the complainant – it allowed the Prosecution and the complainant – rather:
40 …the Prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury
As I understand it, Brennan’s conversations with somebody on 6th June 2020, is sought to be adduced in order to render intelligible the conversations Brennan and
45 Sipple had on the 10th of June 2020 from 10.36 to 2.31 on the 11th of June 2020. So that conversation and by that I mean the 6th of June conversation is admitted on that basis. These last [indistinct] conversations, meaning the ones that happened on the 10th of June and on the 11th of June, up until 2.31, are admissible not withstanding their references to or allusions to an earlier offence because they bear upon or are
23052024/BSD13/Copley J
relevant to whether there is a rational inference available that each accused’s actions
or conduct in relation to the count he faces was engaged in for any purpose other
than attempting to possess the border-controlled drug believed to be in the container.5 Additionally, and contrary to Mr Underwood’s submission, I consider that the conversations had on the 10th of June and up to 2.31 on the 11th of June, are part of the res gestae, in which case in any event the Defence do not suggest that the test for similar fact evidence need be met.
10 The Prosecution case is that the attempt to enter the container, believed to contain 48 kilograms of cocaine, occurred prior to the conversation at 5.19 am on the 12th of June 2020. That conversation and those which follow it, until a little after 5.40 am, are admissible because not withstanding references to earlier offending, the accused make statements or do not demur to statements made in an accused’s own presence
15 by the other, which are capable of amounting to admissions to committing the offence each is charged with. And these admissions are inextricably intertwined with the references to some earlier behaviour that may have constituted to separate offence.
20 I trust I do not do any disservice to Mr Holt by observing that he ultimately acknowledged that these admissions – or these statements capable of being admissions were in inextricably intertwined. However, with the benefit of further
submissions, my – I consider that the conversation at 5.40 am on 12 June 2020, is only admissible – well, it is admissible, but I exclude that part of the conversation
25 that occurs after Sipple says:
I reckon the small one’s the go.
Or:
30
I reckon the floor one’s the go.
Because what is said after that is referable only to some other occasion and it can be
– it is not inextricably intertwined with what is said in the seconds proceeding35 Sipple’s remark which I have read out according to two different versions of the transcript. Therefore, each accused man’s application to exclude the two categories of evidence is refused, except to the extent that I have just set out in relation to the 5.40 am conversation. So directions will be required in due course so that the jury has a correct understanding of what use they may make of this evidence of other
40 matters. And what use they cannot make of this evidence of other matters. So that completes the ruling.
45
0