R v Catanzariti
[2018] SADC 6
•9 February 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v CATANZARITI
[2018] SADC 6
Reasons for Rulings of His Honour Judge Cuthbertson
9 February 2018
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
Application for a permanent stay of proceedings for failure of prosecution to provide adequate particulars.
HELD: In the special circumstances of the case particulars provided are inadequate, Stay of Proceedings is granted in relation to counts 1, 2 & 3.
Application for a permanent stay of proceedings on basis that prosecution is doomed to failure.
HELD: Counts 1, 2 & 3 doomed to failure. Stay granted for abuse of process.
Case to answer is possible on counts 4 & 5. Stay refused.
Further and better particulars required on counts 4 & 5.
Controlled Substances Act 1984 s 4; Evidence Act 1929 s 34P, referred to.
Walton v Gardiner (1992-1993) 177 CLR 278; R v Smith (1994) 73 ACrimR 384; R v El Azzi (2001) 125 ACrimR 113; R v Whittal (1991) 160 LSJS 264; Johnson v Miller (1937) 59 CLR 467; Hayes v Quinn (1992) 57 SASR 6, considered.
R v CATANZARITI
[2018] SADC 6
The applicant is presented on an Information dated 12 May 2016 on five counts of Trafficking in a Large Commercial Quantity of a Controlled Drug namely cannabis and MDMA.
The separate offences are undifferentiated in the Information save as to date and in count five as to the substance, it being alleged to be MDMA.
Application has been made for a stay of proceedings on the basis that the prosecution could never achieve a case to answer and on the basis of the failure to provide adequate particulars.
It is an abuse of process for the prosecution to proceed where it is clear that it would not be able to make out a case to answer on the charge.[1] In order for the application to succeed the court must be satisfied that the prosecution cannot succeed on the evidence available to it.[2] In Walton v Gardiner[3], Mason CJ, Dean and Dawson JJ formulated the principle as follows.
… proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.[4]
[1] See R v Smith (1994) 73 ACrimR 384.
[2] See R v El Azzi (2001) 125 ACrimR 113 at [40].
[3] (1992-1993) 177 CLR 278.
[4] See page 393.
Brennan J in the same case formulated thus,
“proceedings which will inevitably and manifestly fail …[5]
[5] See page 411.
It is to be borne in mind that it is not the mere fact that there is unlikely to be a case to answer. The fact that there will be no case to answer must be manifestly apparent or plain beyond argument. The question of whether there is a case to answer cannot be subject to being affected by the quality of the evidence that comes out at trial. Here, the case to answer, or the lack of it comes from the evidence of telephone interceptions.
Assuming the transcripts are correct, as I will for the purposes of this ruling, the utterances are set in stone. It is a question whether one can ever draw the inferences that the prosecution say can be drawn from the relevant utterances. The evidence cannot be enhanced at trial.
The task is made more difficult in this case because the nature of the prosecution case is not readily apparent. The prosecution case consists of approximately 1,700 pages of transcript of telephone calls between various individuals, only some of the transcripts relating to telephone calls involving the applicant. Almost all of the prosecution case on counts one, two and three relies on inferences from intercepted telephone calls.
Many of the telephone calls relate to what is probably illegal drug activity. Such calls are conducted in a cryptic fashion by the participants. To ascertain a meaning of the conversations implicatory of the applicant requires a judicious identification of the relevant conversations together with an explanation of what is the implicatory meaning that is to be implied from the particular language of the conversation.
I have pointed out to the prosecution, on numerous occasions, that it is not appropriate for the judicial officer to read all of the transcribed telephone conversations and select those that have an implicatory content in relation to the charges against the applicant and to determine what implicatory meaning is to be drawn from the particular conversations. To do so would be for me to enter the arena and to determine the prosecution case based on my own view as to whether a particular conversation carried with it an implicatory meaning and then, having done so to then rule on whether the conversations sufficiently establish a case to answer against the applicant in relation to a particular charge.
Neither is it fair to expect the defence to divine from the conversations what may be implicatory without assistance from the prosecution as to what they allege is implicatory.
The following is a chronology of the various relevant actions performed relative to the question of the provision of particulars.
18 November 2013 First Information filed.
Annexure A 31 March 2014 Defence letter to Prosecution requesting further and better particulars. (No reply from Prosecution)
Annexure B 8 April 2014 Defence writes to Prosecution requesting particulars. (No reply from Prosecution)
Annexure C 11 April 2014 Prosecution file fresh Information.
Annexure D 17 April 2014 Defence write to Prosecution requesting particulars. (No reply from Prosecution)
Annexure E 28 April 2014
Prosecution files fresh Information.
Annexure F
11 September 2014
Defence write to Prosecution requesting particulars. (No reply from Prosecution)
Annexure G
14 October 2014 Magistrates Court of South Australia found there was no case to answer in respect of counts 2, 6 and 7, all charges of Traffic In A Large Commercial Quantity Of A Controlled Drug, on the Information then extant before the Court. 20 February 2015 Prosecution file ex-officio Information.
Annexure H 24 June 2015 Prosecution file ex-officio Information.
Annexure I 6 April 2016 Defence write to Prosecution requesting particulars. (No reply from Prosecution)
Annexure J 10 May 2016 Prosecution file fresh ex officio Information.
Annexure K 11 May 2016 Prosecution provide Defence with letter containing ‘particulars’.
Annexure L 11 May 2016 Prosecution provide defence with witness list and specific telephone intercepts relied upon. There are 53 witnesses and 120 telephone calls.
Annexure M 10 August 2017 Defence write to Prosecution requesting particulars. (Prosecution replied on 18 August 2017 and state they will rely on the particulars from 11 May 2016)
Annexure N 20 August 2017 Rule 49(1) Application for Directions filed by Defence.
Annexure O 7 September 2017 List of Agreed Facts.
Annexure P 12 September 2017 Defence write to Prosecution suggesting Information is duplicitous. (No reply from Prosecution)
Annexure Q 18 September 2017 ‘Particulars and References to Evidence’ document provided to Defence. Annexure R 30 September 2017 ‘Summary of Prosecution Case’ documents provided to Defence.
Annexure S Telephone intercept transcripts relating to Count 1
Annexure T Telephone intercept transcripts relating to Count 2
Annexure U Telephone intercept transcripts relating to Count 3
Annexure V Telephone intercept transcripts relating to Count 4 and 5
Annexure W Note: The Annexures are not published with this Ruling but for convenience are available to the parties.
It was not until the 30 October 2017 that I finally received any intelligible explanation of the prosecution case in the form of the document described as “Summary of Prosecution Case” and dated 30 October 2017. (Annexure S)
I intend to rule on whether there is evidence capable of supporting a case to answer in relation to the present charges based on the prosecution case as it is put to me by the prosecutor and not on the basis of any more favourable conception of the prosecution case that I may be able to construct for myself.
In addition to the now considerably reduced transcripts of telephone intercepts I was informed that the prosecution will now call four witnesses at trial.[6]
[6] T19.
Most of the evidence comes from the set of Agreed Facts and from the telephone interceptions.
Application to Stay – Case Doomed to Failure
Count one[7]
[7] T83.
Count one alleges that the applicant 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 that the substance was a controlled drug.
In order for the prosecution to prove this charge it is necessary to prove the following beyond reasonable doubt.
1That there was a particular amount of cannabis of about 35 lb weight in existence in South Australia between 1 November, 2012 and 20 November 2012. (I include this as an element because the prosecution has chosen in counts one, two and three, to particularise charges that require the proof of the existence of the subject of the charge, i.e. the drugs, by the drawing of inferences from telephone intercepts.) There is no direct evidence verifying the existence of the subject matters of counts 1 to 3.
2That cannabis is a controlled drug.
3That the amount of the drug is a large commercial quantity. (A large commercial quantity in relation to cannabis is 2 kg pure or 12.5 kg in mixed form).
4
That the applicant trafficked in drugs. (Traffic means “to have possession of the substance intending to sell it” or “to sell the drug” or “to take part in the process of sale of the drug”.[8]
After several years the prosecution has finally eschewed reliance on possession by the applicant of the drugs as part of the actus reus of trafficking in any of the counts.
5That the applicant knew the substance was illegal or prohibited.
[8] See s 4 of the Controlled Substances Act 1984.
Section 4(5) of the Act provides as follows,
For the purposes of this Act, a step in the process of sale of a controlled drug includes, without limitation, any of the following when done for the purpose of sale of the drug:
(a)storing the drug;
(b)carrying, transporting, loading or unloading the drug;
(c)packaging the drug, separating the drug into discrete units or otherwise preparing the drug;
(d)guarding or concealing the drug;
(e)providing or arranging finance (including finance for the acquisition of the drug);
(f)providing or allowing the use of premises or jointly occupying premises.
I note the argument of the applicant that inadequate particulars have been provided and in particular that the prosecution should specify the alleged involvement of the applicant with the drug by way of actus reus whereby one can determine whether he has trafficked in the drug. For the purposes of this application I am prepared to hold that there can be a case to answer if there is evidence of any involvement of the applicant in the particular drug which can fairly be described as trafficking by taking part in the sale.
I also note that there is no evidence of the existence of the drugs, the subject of the charge, save insofar as one can infer their existence from the telephone intercepts. I must bear in mind that only utterances of the applicant are admissible as evidence of the truth of them except insofar as an utterance made by another party to a conversation with the applicant may be regarded as an admission by the applicant in certain circumstances e.g. where he might be expected to deny an assertion of fact if it were not true or where the person making the utterance is doing so as part of a joint enterprise.
Further, because of the wide ranging and cryptic nature of the conversations which have been intercepted I have indicated to the prosecution that I would only rely in determining the issues on conversations that were particularised to me as being conversations relevant to a particular charge.
In addition to the Agreed Facts and the utterances particularised to me by the prosecution, the prosecution seeks to rely on general evidence of unexplained wealth of the applicant and alleged involvement in other drug transactions. They have never particularised such other illicit drug transactions.
The relevant conversations in relation to count one are as follows, (See Annexure T)
·Call No. 1144 – 17:27 on 12 November 2012
·Call No. 1196 – 17:25 on 16 November 2012
·Call No. 1096 – 11:49 on 19 November 2012
·Call No. 2 – 12:29 on 20 November 2012
All calls are between the applicant and one Dominic Condo, a man living in WA.
I do not think that it is reasonably open to infer from the calls that there ever did exist a particular amount of cannabis of about 35 lb in South Australia, which was the subject of interest by the applicant and which is the subject of count one.
I am not able to draw inferences that there was a large commercial quantity of cannabis, the subject of count one, for the same reasons.
Further I am not able to draw the inference that the applicant was criminally involved such that he “sent 35 pounds of cannabis to Condo and he received it.”[9]
[9] See “Summary of Prosecution Case” at p15.9.
I am not able to infer that this 35 lb of cannabis was trafficked to Western Australia.
Accordingly there is no evidence which could possibly establish elements one, three or four.
Further the prosecution has failed to particularise the particular facts said to constitute trafficking by the applicant that it relies on.
The information must therefore be stayed in relation to that count on the basis that the prosecution is doomed to failure.
Count two[10]
[10] T93.
In relation to count two it is alleged that the applicant, between 1 October 2013 and 6 October 2013, 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 that the substance was a controlled drug.
On this occasion the prosecution says there was an amount of cannabis in existence of approximately 19 lb which was shipped to WA between 1st and 6th October, 2013. Again no amount was ever located or seen by the authorities and the fact that it was even in existence is to be inferred from the telephone calls.
The relevant transcripts in relation to count two are as follows, (See Annexure U)
·Call No. 683 – 18:52 on 2 October 2013, Applicant and Antonio Catanzariti
·Call No. 691 – 20:18 on 2 October 2013, Applicant and Antonio Catanzariti
·Call No. 721 – 11:11 on 3 October 2013, Peter Mindis called Applicant
·Call No. 740 – 15:18 on 3 October 2013, Applicant and Antonio Catanzariti
·Call No. 156 – 12:04 on 5 October 2013, Peter Mindis called Antonio Catanzariti
·Call No. 161 – 12:26 on 5 October 2013, Antonio Catanzariti called Peter Mindis
·Call No. 892 – 12:27, 5 October 2013, Antonio Catanzariti called the Applicant
·Call No. 163 – 13:16 on 5 October 2013, Peter Mindis and the Applicant
The evidence that there ever was a quantity of 19 lb of cannabis in existence comes from a telephone call between the applicant and Antonio Catanzariti at 15:18 hours on 3 October 2013. (Annexure U) Antonio Catanzariti is the brother of the applicant and resides at North Parade, Torrensville.
His response to a question by the applicant as to how many had been put in a bag is said to establish that there was 19 lb. There were words said by a person other than the applicant. It would be hearsay evidence unless there is prior evidence that Antonio Catanzariti was part of a joint enterprise in relation to count two.
No particularisation has ever been made by the prosecution as to which statements are said to be made by Antonio as part of a joint enterprise with the applicant nor as to what other evidence independently establishes the existence of the joint enterprise involving Antonio.
Based on the submissions of the prosecution orally and in the document headed “Summary of Prosecution Case”, filed 30 October 2017 (Annexure U), I cannot come to the view that the transcript evidence referred to by the prosecution establishes the existence of a 19 lb amount of cannabis, nor that the applicant was criminally involved so as to be trafficking in relation to it, in particular by helping to send it to WA.
The count will be stayed permanently because there cannot ever be a case to answer.
Count three[11]
[11] T93.
This count refers to the Trafficking in a Large Commercial Quantity of Cannabis at Mile End and other places between 8 October 2013 and 16 October 2013.
The relevant conversations in relation to count three are as follows, (See Annexure V)
·Call No. 1138 – 9:12, 9 October 2013, Applicant called Antonio
·Call No. 212 – 15:05, 9 October 2013, Antonio Catanzariti called Peter Mindis
·Call No. 1172 – 21:07, 9 October 2013, Applicant called Antonio Catanzariti
·Call No. 241 – 12:32, 12 October 2013, Peter Mindis called Antonio Catanzariti
·Call No. 242 – 13:36, 12 October 2013, Peter Mindis called Antonio Catanzariti
None of the material referred to in the prosecution’s summary (Annexure S) is, in my view, reasonably capable of leading to the inference that there ever existed a quantity of 28 kg of cannabis or that the applicant was criminally involved in sending it to WA.
The charge will be stayed on the basis that a prosecution based on the evidence foreshadowed to support it cannot possibly succeed.
Count four and five[12]
[12] T106.
Unlike counts one to three, counts four and five are based on drugs, the existence of which can actually be verified. On 15 November 2013, at Keswick Railway Station, police seized 13.3 kg of cannabis and 20,079 ecstasy tablets. They were found in the possession of one Peter Mindis, who had booked to travel on that day by rail from Keswick to Perth. Mindis is a truck driver who regularly drives between Adelaide and Perth. Mindis and the applicant were known to each other, as is established by intercepted telephone calls between them.
The real question that must be addressed is whether there is some evidence of the criminal involvement of the applicant in relation to the shipment of the cannabis and / or the MDMA that was undoubtedly discovered at Keswick Railway Station in the possession of Mindis.
On 14 November 2013 police performed surveillance on the applicant and some of his associates. Mindis was seen to arrive at the applicant’s house at Mile End about 10.30 am leaving about half an hour later. He returned to the applicant’s home at about 12.23 pm.
At 12.50 pm on 14 November 2013 the applicant was heard to tell his mother “the old man is coming there”. (Annexure W) Within 10 minutes Mindis arrived. The fact that Mindis arrived within 10 minutes of the applicant’s utterance to his mother may reasonably lead to the inference that the applicant was referring to Mindis and had knowledge that Mindis would be arriving there shortly. Mindis then was seen to return to his vehicle.
At about 4.12 pm on 14 November 2013 one Anna Fulco asked the applicant if she was to “send the ones left over”. (Annexure W) Anna Fulco lived a short distance from the applicant at 240 South Road, Mile End and is the sister of the applicant.
The applicant replied that it depended on how many there were. Fulco replied that there were 50 and 23. The applicant said “put them in as well … mark them though.” (Annexure W)
Two and half hours later police attended at the Keswick Railway Station and seized 20,079 ecstasy pills from the luggage of Mindis. The ecstasy was packaged in bags each containing 200 tablets with the exception of two bags, one containing 56 tablets and marked “56” and the other containing 23 tablets and marked “23”.
The combined evidence of the link between Mindis and the applicant (established by evidence of him visiting the applicant’s home) and the applicant’s knowledge of his impending arrival at his mother’s home and the link between Fulco and the applicant established by their telephone call and the evidence that Fulco told the applicant that “there were 50 and 23” and that the applicant directed her to “put them in as well … mark them though”, and the fact that the police located with the ecstasy tablets a secondary lot of 56 and 23 tablets marked accordingly in my view is sufficient to establish that the applicant was knowingly concerned in the ecstasy tablets that were in the possession of Mindis at the Keswick Railway Station .
The inference arises from the facts that Fulco is the sister of the applicant and she was directed by the applicant to “put them in as well … mark them though” referring to items 56 and 23 in quantity.[13]
[13] See Call 3160 from telephone intercepts.
It is true that the drugs seized had 56 tablets and not 50 in a separate packet. That can reasonably be inferred to be a mistake.
The fact that 2 ½ hours later there was an item seized from Mindis (a person known to the applicant) which comprised 56 and 23 tablets marked “56” and “23” is so coincidental as to lead to the inference that the applicant was referring to the ecstasy tablets possessed by Mindis and that the applicant was giving instructions concerning them and in particular as to the “left over” tablets of MDMA.
Given the number of tablets and the fact that it might be inferred that they were about to be taken to Perth on the train leads to the inference that they were being trafficked.
The fact that there is evidence that the applicant gave directions in relation to that amount of tablets leads to the inference that he was involved in the trafficking by giving directions concerning the tablets such that he was trafficking.
In my view the prosecution is likely, if this evidence is led to make out a prima facia case in relation to count five.
Accordingly there is no order that the proceedings be stayed.
When the MDMA was located by police at Keswick Railway Station they also located a quantity of cannabis being 13 ½ kg. There is no direct evidence against the applicant in relation to the cannabis except that it was found with the MDMA in respect of which there is some evidence of his involvement by the giving of directions.
Arguably there is other evidence of a general nature that the applicant was involved in trafficking in cannabis, although the prosecution has never particularised that evidence.
Notwithstanding my directions to the prosecution that I wanted full details of their case in great detail, nothing has been provided and I am left to speculate as to whether the applicant’s other alleged involvement in cannabis trafficking is asserted to be sporadic or regular. The evidence for it apparently comes from inferences to be drawn from many transcripts of telephone interceptions. I have already indicated that I think it is highly inappropriate that I should read all of the huge number of telephone intercepts that have been presented as part of the prosecution case and should have to decide for myself the extent to which inferences of involvement in cannabis can be drawn from highly cryptic conversations. Nor do I think it is reasonable to expect the defence to do so in order to object to certain evidence if the inference is not clearly apparent. The prosecution should indicate what inferences they say are available. Only then can we measure if the proposed evidence passes the test for discreditable conduct evidence.
I will consider the matter on the basis that there may, in a general sense, be other evidence of the applicant’s involvement in cannabis.
The question is whether it can be inferred that, because the applicant is criminally involved in a quantity of ecstasy which was seized at the Keswick Railway Station, he is logically criminally involved in a shipment of cannabis found in the possession of the same person.
There is no material before me from which I can say whether Mindis regularly took shipments of cannabis for the applicant, or whether he took shipments on behalf of others or on his own behalf. The shipment of the MDMA was in a separate black wheeled bag to the cannabis.[14] There is no suggestion of a link by the use of similar packaging etc. used for the cannabis and MDMA.
[14] T139.
In the circumstances I cannot say that the inference cannot reasonably be drawn that the applicant is responsible for trafficking both amounts.
In my view there may be evidence from which an inference could reasonably be drawn that the applicant is criminally involved in the cannabis.
Accordingly there will be no stay in relation to count four.
I have borne in mind at all times, in respect of all five counts, that in making the assessment of whether inferences could reasonably be drawn in favour of guilt that I should draw all such inferences as are reasonably available to me to be drawn and that the facts proposed to be led by the prosecution should be accepted for the purpose of making the assessment.
Failure to Provide Particulars
Where the prosecution does not give particulars which have been ordered, and thus there cannot be a fair trial, the court may stay the proceedings for abuse of process.[15] Where no satisfactory particulars are suppled after an order for further and better particulars has been make, the information may be dismissed.[16]
[15] See R v Whittal (1991) 160 LSJS 264.
[16] See Johnson v Miller (1937) 59 CLR 467 & Hayes v Quinn (1992) 57 SASR 6.
In this case there is a special requirement for particulars due to the complication of the case and the fact that it relies in major respects upon voluminous telephone transcripts. It is apparent from the transcripts that the participants in the conversations are involved in illegal drugs and that they are speaking cryptically so as to avoid detection.
I have indicated to the prosecution, on a number of occasions, that it is the task of the prosecution to indicate which conversations carry with them an implication of guilt or an implication of a matter the prosecution intend to prove at the trial as relevant to guilt, and it is the duty of the prosecution to indicate what inference it says can be taken from any particular conversation.
In Johnson v Miller[17] (1937) 59 CLR 467 Evatt J said at 497-498,
The court possesses an inherent authority to require that the particulars of a charge shall be furnished. In this court the matter of particulars has been recently adverted to in cases like R. v. Weaver (1931) 45 CLR 321; R. v. Hush; Ex parte Devanny at 515 and Davies v. Ryan at 386. It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer. I think that the observations of Napier J. in Tucker v. Noblet (1924) SASR 326 at 340 support the view that, at the outset of the hearing, the prosecutor may be called upon to select his charge and particularize his complaint, and that in the absence of the necessary information, and, as a last resort, the court has inherent power to dismiss the complaint. … No plea can be taken, no evidence can be admitted, nothing can be done, an adjournment will be useless, if a prosecutor is set upon a refusal to particularize.
I am therefore of opinion that, independently of the statutory authority for dismissing, the magistrate had also inherent power to dismiss the present complaint, and that he took the correct course in so acting.
[17] Ibid.
It is not the job of the Judge nor is it fair on the defence to ask them to read through the voluminous material and then determine for themselves what passages may be implicatory and what it is that the passage implies that is implicatory. What may be implicatory is frequently not apparent.
The prosecution has failed to supply the requisite particulars over a lengthy period of time despite my requests.
The case is unusual and outside of the usual case of trafficking in drugs. Usually, the drugs are known to exist because they are seized by the police and so the subject of the charge can be objectively established and both prosecution and defence are aware of the drugs which are the subject of the charge. In this case, the prosecution have even failed, in counts one to three, to provide any particulars from which the defence could ascertain the identity of the drugs the subject of the charge.
Each of the counts one to three is in similar terms and does not identify by description the drugs, the subject of any of the three counts so as to differentiate them from the drugs, the subject of another count, save for a particularisation of the offence having occurred between particular dates.
The first difficulty, then, is the failure to provide any particularisation as to the identity of the drugs, the subject of a count, right up until 30 October 2017.
The prosecution also indicate that it is alleged that the identified drugs have been trafficked to Western Australia. Nothing has been forthcoming from the prosecution as to how that is to be established.
It was not until the provision of some particulars on 11 May 2016 (Annexure L) that the particular telephone calls and the particular utterances were pointed out from which the prosecution ask that the existence of drugs the subject of counts one to three be inferred.
I indicate that I do not agree that the utterances specified can lead to the inferences the prosecution assert. The argument, which took place on 31 October 2017 and the utterances indicated as being evidence in proof of the existence of the drugs, the subject of counts one to three, illustrate, however, the reasons why the prosecution particularisation is far from adequate and leads to unfairness to the applicant.
Some of the statements of fact made in the intercepted telephone conversations are statements made by the other party to the conversation and not the applicant. The question arises as to whether, if a statement is made by another person to the conversation, it is admissible evidence of the truth of the assertion. Some statements made by another party to the transaction may be admissions of the applicant and available as evidence of the truth of them by virtue of the principle relating to statements made in the presence of an accused person and adopted by the accused. Some of the statements by the person other than the applicant may be admissible against the applicant as being statements made in the course of the commission of a joint enterprise crime.
It is necessary for the prosecution to indicate in relation to any assertions of fact they rely on of persons other than the applicant, which, if either of the two principles they are asserting is applicable. It is unfair for the defence to have to speculate as to which of the two principles is being relied on so as to consider the admissibility of that evidence without the prosecution’s indication as to how they say it is admissible.
If it is the principle that makes admissible utterances in the furtherance of a criminal joint enterprise that the prosecution is relying on, the prosecution should provide particulars of the joint enterprise that they say is on foot and the telephone intercepts and inferences therefrom that establish it.
The telephone intercept evidence is voluminous. It behoves the prosecution to particularise the allegations that they are going to rely on. Is the defence to simply speculate from all the telephone intercepts which are cryptic, which ones and which utterances are being relied on to establish the joint enterprise and what inferences they say come from the proved utterances.
Moreover, presumably if the prosecution is right about all or some of the inferences that they say can be drawn there is a question of whether it is discreditable conduct.
The defence cannot know in advance in a case such as this what items of discreditable conduct are to be led against them without knowing which utterances, of all the many utterances in the intercepted telephone messages, are to be led against them and what inferences are to be drawn.
It is especially important because the prosecution have, in a general sense, indicated that they intend leading evidence of a general nature of the involvement of the applicant on other occasions in trading in drugs. This evidence comes from the telephone transcripts and the applicant is entitled to know which particular utterances of the many to be led carry with them some sort of implication of drug trading and the alleged extent of it.
The proposed evidence, if it carries with it the implications the prosecution assert, in a general sense would be discreditable conduct evidence. Most of it can only be relevant as propensity evidence.[18] It would therefore be subject to the more demanding test as prescribed in s 34P(2)(b) of the Evidence Act 1929. Thus there is an even greater need for the applicant to know in advance which of the many utterances are said to carry with them implications harmful to his case and what those implications are.
[18] See Summary of Prosecution Case – Annexure S.
The applicant is required to object, in advance of the trial, to evidence of discreditable conduct.
I note the provisions of s 34P(4) of the Evidence Act.
Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
The prosecution has singularly failed in compliance with this provision, which, in my view, requires some specificity rather than broad allegations.
The applicant still does not know the nature of the evidence of discreditable conduct because he has never been told which conversations are said by the prosecution to carry with them implications of drug trafficking, beyond what is directly relevant to a particular charge.
In my view the crux of the prosecution case is to establish the actus reus of the applicant i.e. what acts the applicant is alleged to have done that, the prosecution say, demonstrates his involvement in trafficking. The prosecution should provide more than the mere broad allegations they have provided. They have, some four years after relying on the concept of possession as at least in part the basis for the actus reus, eschewed that reliance[19] and are still relying on a series of acts, still unspecified, which denote taking part in trafficking.
[19] See T18/9/17 P2.
The prosecution have been requested by me on a number of occasions to provide detailed particulars. They have failed to do so.
I would permanently stay counts one, two and three for failure to provide adequate particulars to enable the applicant to properly defend the matter.
I regard counts four and five as being in a slightly different category to counts one to three. The failure to provide particulars in relation to counts four and five has been remedied to a degree as at 31 October 2017. The applicant now knows the specific allegations in counts four and five and the specific intercepted telephone calls which are relied on by the prosecution to establish counts four and five. I do not propose to dismiss counts four and five on the basis of the failure to provide particulars.
Unlike counts one to three, I think there is arguably a case to answer in relation to count four and five. That is not to say that I do not regard the matter as totally unsatisfactory in relation to the provision of particulars.
The prosecution say that part of the evidence against the applicant in relation to counts four and five is that the applicant and Condo were in a business relationship whereby it was the practice for Condo to deliver drugs for the applicant to Western Australia. The prosecution say that that evidence makes it more likely that this particular drug consignment that was seized by police from the possession of Condo at the Keswick Railway Station was being trafficked by the applicant and that the cannabis located was being trafficked by the applicant.
No particulars have been provided as to which telephone calls and what inferences are to be relied on to establish a propensity by the applicant to trade in illicit drugs through Condo.
In relation to count four and five, therefore, I propose to order that the prosecution provide further and better particulars in relation to the following matters,
1Nominate all items of discreditable conduct the prosecution intends to lead.
2Nominate in relation to each item whether the evidence to be led to prove it comes from a witness statement and if not which intercepted telephone calls does it come from?
3Where the evidence is to come from a telephone transcript, nominate the transcript and if the evidence includes an assertion that evidence arises by inference from a passage in a telephone transcript, indicate the passage and the inference said to arise.
4Nominate in respect of each offence all acts the prosecution is alleging as acts of taking part in the process of sale of the drug the subject of the charge.
My orders are as follows,
Counts 1, 2 and 3 stayed as an abuse for want of particulars requested and on the basis that the prosecution is doomed to fail.
Counts 4 and 5 particulars to be provided as ordered.
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