R v C, S

Case [2018] SASCFC 125

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v C, S

[2018] SASCFC 125

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)

4 December 2018

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING

Prosecution appeal against an order of a District Court Judge staying three out of five counts on an information on the basis that prosecution on those counts was foredoomed to fail and were not adequately particularised.

The respondent was charged with three counts of trafficking in a large commercial quantity of cannabis and other counts. The prosecution case relied on intercepted telephone calls and in respect of counts 1 to 3, relied on the assertions of another man made to the appellant to prove the quantity of the cannabis allegedly trafficked.

Whether joint enterprise is available as a basis for liability in trafficking charges. Whether the co-conspirator’s rule was available and rendered the assertions of others as to quantity admissible as assertions to prove their truth. Whether adequate particulars were provided.

Held, per Kourakis CJ (Nicholson J agreeing), granting permission to appeal on ground 2 and allowing the appeal:

1. Section 33S of the Controlled Substances Act 1984 (SA) does not abrogate the co-conspirators rule (at [32]).

2.  It was necessary to identify evidence from which it could be inferred that the persons whose statements are relied on were participants in the relevant criminal conduct with which the accused was charged, independently of the evidence, the admissibility of which was disputed (at [37]).

3.  The statements of DC and AC concerned the steps that the respondent had directed them to take and were therefore made in the course of the criminal enterprise in which they had agreed to participate. The statements of DC and AC were admissible on the respondent’s trial for directing and causing steps to be taken to traffic the cannabis (at [37]).

4.  In relation to the application to stay the information on the ground that the prosecution was doomed to fail, the prosecution should have been permitted to lead its evidence, and any no-case submission, should have been entertained only at the close of the prosecution case (at [38]).

Per Vanstone J, granting permission to appeal on ground 2 and dismissing the appeal:

5.  The question whether a prosecution is foredoomed to fail is analogous to the question of whether a case to answer has been made out, and is a matter of law. The prosecution has an appeal as of right against the ruling.

6. Joint enterprise as a basis for liability is not available in a prosecution for trafficking under s 32 of the Controlled Substances Act 1984 (SA). The co-conspirator’s rule is not available in the absence of joint enterprise or pre-concert. The words of others were not available to prove…

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R v C, S [2018] SASCFC 125
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[2018] SASCFC 125
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CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Vanstone and Nicholson JJ, heard an appeal by the Director of Public Prosecutions against a District Court Judge's decision to stay three of five counts in an information. The dispute concerned the adequacy of particulars provided by the prosecution in relation to charges of trafficking in controlled drugs, specifically cannabis and MDMA, between 2012 and 2013. The prosecution's case relied heavily on interpreting coded intercepted telephone conversations and drawing inferences from them, which the defence argued necessitated more detailed particulars.

The primary legal issues before the Full Court were whether the District Court Judge erred in staying the prosecution on the basis of inadequate particulars, and consequently, whether permission to appeal on this ground should be granted. The court also considered the principles governing the admissibility of evidence of acts and declarations of alleged co-conspirators in substantive drug trafficking charges, particularly in circumstances where the prosecution case involves interpreting coded language and relies on inferences. This involved examining the distinction between evidence admissible in conspiracy trials and substantive offence trials, and the requirement for some reasonable evidence of pre-concert in the latter.

The Court reasoned that the prosecution's reliance on coded conversations and inferences made the obligation to provide particulars particularly onerous. While acknowledging the trial judge's identification of particulars upon which the trial could proceed, the Full Court found that the prosecution case was capable of particularisation and that the delay had not resulted in incurable forensic unfairness. The Court applied the principle that a stay of proceedings should only be granted in rare circumstances where the interests of justice, balancing the public interest in prosecution with the defendant's right to a fair trial, demand it. The Court also discussed the evidentiary rule concerning the admissibility of acts and declarations of parties to a common criminal enterprise, noting that for substantive offences, there must be some reasonable evidence of pre-concert before such evidence can be admitted against an accused.

The Court concluded that permission to appeal should be granted on the ground concerning the adequacy of particulars. Ultimately, the Court allowed the appeal, indicating that the stay of proceedings was not warranted.

Orders

Orders of the court

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Background

Background to the litigation

I would grant permission to appeal on the second ground, that is, the question whether the Judge’s decision to stay the prosecution on the basis of inadequate particulars was correct. As will be seen, this question has direct relevance to the first issue. It assumed a particular relevance because of the diffuse nature of the prosecution case, the plainly inadequate particulars originally provided and because of the repeated requests for particulars made by the respondent’s legal advisors. The case against the respondent relied almost wholly on intercepted telephone conversations. In these conversations the respondent and his associates spoke largely in code. The prosecution contended, as well, that much was left unsaid. In these circumstances the prosecution case involved both interpreting the content of the conversations and relying on inferences which it was said flowed from them. This rendered the obligation upon the prosecution to provide particulars a more than usually onerous one. In these circumstances, and because the Judge’s decision is before us in any event, permission to appeal should be granted on ground 2.Background The information on which the Judge ruled is dated 12 May 2016. It contains 5 counts, the first four of those charging trafficking in a large commercial quantity of a controlled drug. That charge invokes s 32(1) of the Controlled Substances Act 1984 (SA). (Relevant provisions of the Controlled Substances Act are set out as an appendix at the end of these reasons.) The first 3 charges concern the respondent alone. The particulars of count 1 are that he ‘between 1 November 2012 and 20 November 2012, at Mile End and other places, trafficked in a large commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug. Counts 2 and 3 are identical to count 1, except that count 2 alleges the same conduct between 1 October 2013 and 6 October 2013 and count 3 alleges conduct between 8 October 2013 and 16 October 2013. Count 4 alleges the same charge and the same particulars, except that, here, the respondent is charged jointly with his wife, Carolyn (‘Carolyn’), and the dates are between 12 November 2013 and 15 November 2013. Count 5 alleges trafficking in a large commercial quantity of MDMA (or ecstasy) and the respondent is jointly charged with Carolyn and his sister, between 12 November 2013 and 15 November 2013. As will be appreciated, all the particulars allege conduct ‘at Mile End and other places’. A statement of agreed facts filed on 7 September 2017 records that the respondent was on electronically monitored home detention bail at his home at Mile End between 26 April 2013 and 16 November 2013. That period spans counts 2 to 5. Indeed, the prosecution does not now allege that any of the respondent’s conduct said to constitute any offence took place outside his home. Subdivision 1 of Division 2, Part 5 of the Controlled Substances Act provides offences of trafficking in controlled drugs. As mentioned, s 32(1) provides the offence of trafficking in a large commercial quantity of a controlled drug. Section 32(2) and (3) provide the offences of trafficking in a commercial quantity of a controlled drug, and, merely, trafficking in a controlled drug, respectively. Thus it is necessary for the prosecution to select the appropriate offence depending on the quantity alleged. If there is some doubt, an offence involving a lesser quantity could be provided as an alternative.

Evidence

Evidence Before The Court

The cross-admissibility of the acts and declarations of parties to a common enterprise against each other was again considered by the High Court in Ahern v The Queen.[13] After discussing the limited way in which the separate and individual acts and statements of any one of the alleged parties to a conspiracy may be considered for the purposes of determining whether or not another person was a party to it, the Court explained the broader permissible use of those acts and statements once participation in the criminal arrangement is established:[14]However, it is not in all cases that evidence of the separate acts or the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation. Evidence of the acts or declarations of others led for this purpose will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations. It would be excluded as hearsay or its equivalent were it not admissible upon some other basis.That basis is provided in an appropriate case by the rule which states 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 implied an authority in each to act or speak on behalf of the others. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime.(footnotes omitted; emphasis added)[13] (1998) 165 CLR at 87.[14] Ahern v The Queen (1998) 165 CLR 87 at 94-95. In The Queen v Corak, King CJ explained the position in this way:[15]Counsel stressed that this was a charge of possession of Indian hemp for trading, not a charge of conspiracy. The rule of evidence under which the evidence was admitted is, however, the same whatever the charge. The rule is that acts done and statements made by another person in the absence of the accused are admissible against the accused if done or made in furtherance of a common criminal purpose to which both are parties. There is, however, a problem inherent in the application of the rule which arises because the evidence is admissible to prove the very common purpose whose existence provides the justification of the admission of the evidence. The efforts of the courts to minimize this problem have produced a difference in the practical application of the rule in trials of substantive charges and trials of conspiracy charges. In the former ‘some reasonable evidence of the preconcert must be adduced’ before evidence of acts or words of one of the parties in the absence of the other is admissible against that other (Tripodi v. The Queen). In the latter it is not necessary to look for evidence of common purpose other than the evidence whose admissibility is in question before admitting the latter evidence. The reason for this difference in application of the rule is to be found in the nature of the charges to be proved. Proof of a charge of conspiracy is proof of the common criminal purpose. The evidence cannot therefore be misused. If the evidence proves the conspiracy it also proves the common criminal purpose which justifies the admission of the evidence. The verdict itself justifies the admission of the evidence. If the evidence does not prove the conspiracy, the charge fails and it is immaterial that the common purpose required to justify the admission of the evidence is seen not to exist. An accused may be convicted on a charge of a substantive offence without proof of common purpose between the accused on the one hand and the maker of the statement or the doer of the act sought to be introduced into evidence on the other. There is a danger of misuse. A jury might be influenced to convict by evidence of such statement or act although it might turn out that, there being no common purpose, it ought not to be used against the accused. On trials of substantive charges, at least where proof of the charge is not inseparably linked with proof of common purpose, the evidence is not admitted unless there is some other reasonable evidence which makes the existence of a common purpose a real possibility. Once admitted, of course, the evidence is available to prove the existence of the common purpose.Counsel argued that the evidence of the conversations could not be admitted unless there was some evidence of acts or statements indicating participation in the common design, done or uttered by the particular accused at an earlier time than the statements whose admission is under challenge. The charge is not a conspiracy charge. It is a charge of a substantive offence which could be proved against the appellants without proof of pre-concert with Waters and could be proved against Corak without proof of pre-concert with Palmer. In cases such as the present case, there must, as I have already pointed out, be evidence raising at least a real possibility of pre-concert before the challenged evidence is admitted. The real possibility of the common design or purpose which in appropriate cases is a condition precedent to admission of the evidence, may, however, be indicated by evidence of acts or statements done or made by the accused or in his presence, whether those acts or statements were done or made before or after the challenged conversations, if they tend to show the existence of a common purpose in pursuance of which the conversations under challenge took place.(footnotes omitted)[15] (1982) 30 SASR 404 at 405-406.

Decision

Reasons for decision

Nonetheless, prosecutions are brought in the public interest. Public and statutory responsibility for the bringing of prosecutions lies with the Director. It is the duty of courts to hear and determine criminal proceedings brought before them. If the evidence is lacking, the charges will be dismissed on a no-case submission at the end of the trial. Only in rare circumstances will the courts decline to hear charges brought by the Director by staying the proceeding. The relevant criterion is the interests of justice which balances both the public interest in the trial of criminal prosecutions and the defendant’s interests in a fair trial and protection from persecution. As I have just observed, the Judge identified the particulars on which the trial could fairly proceed. No submission was made at trial, or on appeal, that the delay had resulted in incurable forensic unfairness. There being a strong prosecution case, which always was manifestly capable of particularisation, that the appellant had directed or caused steps to be taken to traffic cannabis, was the delay here cannot be characterised as persecution. There is no suggestion that the Director had embarked on a deliberately improper strategy. A stay should not be granted against the public interest as a sanction because the legal work of a particular officer or officers in the Director’s Office falls below the standard of the model litigant but has not caused a material injustice.Conclusion For the reasons now given, I would allow the appeal. VANSTONE J: The Director of Public Prosecutions appeals against a decision of a Judge of the District Court on an issue antecedent to trial, namely an order staying three counts of five on an information, on the basis that prosecution of those counts was doomed to fail. This is ground 1 in the notice of appeal. The Director also seeks permission to appeal against the Judge’s further decision – effectively in the alternative – that those counts should be stayed because the particulars provided by the Director were inadequate. This is ground 2.The right of appeal The appeal provision upon which the Director relies is s 352(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). Relevant definitions appeared in s 348 of the CLCA. The appeal notice was lodged on 2 March 2018. On 5 March 2018 the Summary Procedure (Indictable Offences) Amendment Act 2017 (SA) commenced. It repealed Part 11 of the CLCA (Appellate proceedings) which included s 348 and 352, which are here relevant. Those provisions are now found in the Criminal Procedure Act 1921 (SA). The transitional provision in s 41 of the Amendment Act reads as follows:41—Transitional provisionThe amendments made by this Act apply to proceedings relating to an offence that are commenced after the commencement of this Act, regardless of when the offence occurred (and the Acts amended by this Act, as in force before the commencement of this Act, continue to apply to proceedings that were commenced before the commencement of this Act).Accordingly, the appeal proceeds pursuant to s 352 of the CLCA.

Ratio Decidendi

Legal Principle Established

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