R v Dolding

[2018] NSWCCA 127

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Dolding [2018] NSWCCA 127

Hearing dates:

9 May 2018

Decision date:

25 June 2018

Before:

Simpson AJA at 1
Johnson J at 65
Harrison J at 66

Decision:

1. Appeal allowed.
2. The rulings made on 27 February 2018 rejecting the tender of certain evidence proposed to be led by the Crown set aside

Catchwords:

EVIDENCE – Evidence Act 1995 (NSW) s 87(1)(c) – whether section encompasses representations made in furtherance of a common purpose extraneous to proceedings

 

EVIDENCE – Evidence Act 1995 (NSW) – “representation” – meaning of

EVIDENCE – where evidence tendered under s 87(1)(c) – where criteria satisfied – satisfaction of criteria does not finally determine admissibility in substantive proceedings

Legislation Cited:

Criminal Appeal Act 1912, s 5F(3A)
Evidence Act 1995, s 87(1)(c); s59(1) & (2); s 56(2)
Law Enforcement (Controlled Operations) Act 1997 (NSW)

Cases Cited:

Ahern v The Queen (1988) 165 CLR 87
Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794
Australian Competition & Consumer Commission v Pratt (No 3) [2009] FCA 407; (2009) 175 FCR 558
Elomar v R (2014) 300 FLR 323; [2014] NSWCCA 303
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [No 4] [2006] NSWSC 90
Landini v State of NSW [2007] NSWSC 259
Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60
R v Macraild (unreported, NSWCCA, 18 December 1997)
R v Scott Alan May (No 2) [2008] NSWSC 595
R v Watt [2000] NSWCCA 37
Tripodi v The Queen (1961) 104 CLR 1

Category:

Procedural and other rulings

Parties:

The Crown (Appellant)
Katrina Janet Dolding (Respondent)

Representation:

Counsel:
S Dowling SC/B Baker (Appellant/Crown)
A Moen (Respondent)

    Solicitors:
Solicitor for Public Prosecutions (Appellant/Crown)
Faye Rose Legal (Respondent)

File Number(s):

2016/252118

Publication restriction:

Restricted

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 February 2018

Before:

Whitford DCJ

File Number(s):

2016/252118

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent is charged with three counts of supplying a prohibited drug (heroin), arising out of offences alleged to have been committed on 10 and 22 June and 28 July 2016. The Crown case is that on each occasion the respondent supplied the drug to M. M obtained the drug for the purpose of supplying it to another person who (unknown to M) was a “registered source” (“RS”), meaning that she cooperated with and gave information to law enforcement authorities.

Meetings and conversations took place between M and RS on the three occasions the subject of the charges. The meetings involved RS driving to M’s apartment in Waterloo, and driving, at M’s direction, to various locations in Sydney. RS was equipped with a listening device that recorded conversations between the two. Under-cover police operatives were deployed to surveille and visually record the meetings. It is the Crown case that from time to time M left the car in order to obtain the drugs that she then supplied to RS, and that the person from whom she obtained the drugs was the respondent. No part of the conversations involved the respondent. The Crown do not intend to call M as a witness at trial. To the extent that any of the communications contains any representation concerning the respondent, they are hearsay.

The Crown sought to tender the audio recordings of the conversations between M and RS in reliance of s 87(1)(c) of the Evidence Act 1995 (NSW) s 87(1)(c). The primary judge ruled that the evidence was inadmissible, for two principal reasons. First, he was not persuaded that evidence of participation in an illicit sale transaction was a sufficient basis for concluding that a common purpose existed between M and the respondent. Secondly, he was not persuaded that any of the representations relied upon by the Crown was properly characterised as having been made in furtherance of any common purpose; rather, he considered that they were in the nature of gratuitous utterances.

The Crown appealed under s 5F(3A) of the Criminal Appeal Act 1912 (NSW), seeking orders vacating the ruling of the primary judge, and that the evidence was admissible.

Held

The Court, allowing the appeal, held:

(1) Section 87(1)(c) requires a court to admit evidence of a previous representation by a person if it is reasonably open to find that the representation was made in furtherance of a common purpose that that person had with a party, but that is due for the limited purpose of determining whether that representation is taken to be an admission by the party. Section 87(1)(c) is not directed to the admissibility of evidence of the representation in the substantive proceedings.

R v Macraild (unreported, NSWCCA, 18 December 1997) referred to; Elomar v R (2014) 300 FLR 323; [2014] NSWCCA 303 referred to.

(2)   Parties to a transaction of sale and purchase have a common purpose notwithstanding that the objective of one is sale, and the objective of the other is purchase. The common purpose is the transfer of property from one to the other.

R v Watt [2000] NSWCCA 37 as explained in R v Scott Alan May (No 2) [2008] NSWSC 595.

(3) Section 87(1)(c) does not permit the admission of evidence of a representation made in furtherance of a common purpose other than the common purpose the subject of the proceedings.

(4)   For the purposes of the Evidence Act, a “representation” is the assertion of the existence of a fact or state of facts and includes non-verbal assertions to be inferred from conduct, and assertions not intended to be, and not, communicated.

Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 cited; Australian Competition and Consumer Commission v Pratt (No 3) [2009] FCA 407 cited.

(5)   Statements or conduct “in furtherance of” the common purpose are statements or conduct which advance, help forward, aid, or otherwise assist the common purpose.

Tripodi v The Queen (1961) 104 CLR 1; Landini v State of NSW [2007] NSWSC 259.

(6) A decision in an appeal under s 5F(3A) of the Criminal Appeal Act is confined to the basis on which the evidence in question was rejected. That basis may be found to have been erroneous, but it does not render the evidence admissible. There may be other reasons why the evidence is inadmissible.

The Court ordered that the rulings of the primary judge made on 27 February 2018 rejecting the tender of the evidence be set aside, but declined to make an order that the evidence would be admissible in the trial.

Judgment

1. SIMPSON AJA: Pursuant to s 5F(3A) of the Criminal Appeal Act 1912 the appellant (the Director of Public Prosecutions -“the Director”) appeals against a ruling on the admissibility of evidence made by a judge of the District Court on 27 February 2018 in relation to a trial that had been fixed to commence on the previous day. By the ruling the judge excluded certain evidence on which the Crown seeks to rely in the trial. An appeal under s 5F(3A) lies only where the ruling eliminates or substantially weakens the prosecution case. The Director seeks an order vacating the ruling, and an order that the evidence is admissible.

Background

2. The respondent, Katrina Dolding, is charged with three counts of supplying a prohibited drug (heroin), arising out of offences alleged to have been committed on 10 and 22 June and 28 July 2016. The total amount of the drug alleged to have been supplied is 10 grams.

3. The Crown case is as follows. On each occasion the respondent supplied the drug to a Ms Karla Maniskas. Ms Maniskas obtained the drug for the purpose of supplying it to another person who (unknown to Ms Maniskas) was a “registered source” (“RS”), meaning that she cooperated with and gave information to law enforcement authorities, as part of a “controlled operation” under the Law Enforcement (Controlled Operations) Act 1997 (NSW).

4. Meetings and conversations took place between Ms Maniskas and RS on the three occasions the subject of the charges. The meetings involved RS driving to Ms Maniskas’ apartment in Waterloo, and driving, at Ms Maniskas’ direction, to various locations in the inner west and other parts of Sydney. At the time RS was equipped with a listening device that recorded conversations between the two. She was also in possession of sums of money provided to her by investigating police for the purpose of purchasing drugs from Ms Maniskas. Under-cover operatives were deployed to surveille the meetings between the two women and these meetings were visually recorded. It is the Crown case that from time to time Ms Maniskas left the car in order to obtain the drugs that she then supplied to RS, and that the person from whom she obtained the drugs was the respondent. The evidence in question, that was rejected by the trial judge, was the audio recordings of the conversations. The Crown, in fact, relies on only a small proportion of the conversations recorded. A brief sample of the evidence in question will suffice for present purposes.

5. The transcript of the meeting between RS and Ms Maniskas on 10 June 2016 includes the following, attributed to Ms Maniskas:

“The good news is it’s gunna happen … bad news is it’s gunna take an hour now ‘cause she had to go out.

…

I’m gunna get you half weight for 200.

…

Um it’s usually I do them for four 20 … they’re like, ‘cause I’m getting the money off you and, um, you know, you’re just gunna be in the car a few metres away anyway. And I mean, I got to come back to my house …

You’ll be able to see me anyway. Um, I, I’ll do the, ah, I can do a full one for probably, oh, four? …”

There was other conversation concerning arrangements to meet another person.

6. In the conversation recorded on 28 July 2016, the following is attributed to Ms Maniskas:

“She only sees me ‘cause I’m a really old friend, a friend. … She only seein’ me … as a favour. Um she didn’t want any more customers. She didn’t need any more customers.

… OK. Yeah, but that’d be cool. Like, as long as I can say, you know what I mean … and see if she can do a better price for me. ‘Cause that means I’d be getting four … number … doing twice a week. So I wanted to work out the days with you …”

Again, there was other conversation indicating arrangements for meeting another person.

7. Taken alone, these passages are almost meaningless. However, in the context of the evidence to be given by RS, and the surveillance evidence, they are capable of being interpreted as part of the activity involved in the purchase of heroin by Ms Maniskas. The Crown contends that a number of references to “she” in the passages indicate that the person from whom Ms Maniskas is obtaining the drugs is female.

8. It may be emphasised that no part of the conversations the subject of the evidence in question involves the respondent. All relevant conversations are between Ms Maniskas and RS. It is not the intention of the Crown to call Ms Maniskas as a witness in the trial of the respondent. To the extent that any of the communications contains any representation concerning the respondent, they are therefore hearsay.

9. It is the intention of the Crown to call RS as a witness. RS has provided three statements in which she describes the circumstances in which she transported Ms Maniskas to the different locations, and, briefly, her engagement with Ms Maniskas. The conversations on which the Crown relies are to be interpreted in the context of those statements.

10. The Crown proposes to tender the evidence in reliance on s 87(1)(c) of the Evidence Act 1995. Section 87 appears in Chapter 3, Part 3.4 of the Evidence Act. Chapter 3 deals with “Admissibility of Evidence”. By s 59(1) (“the hearsay rule”), which appears in Part 3.2:

“(1)   Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.”

A “previous representation” is defined in the Dictionary to the Evidence Act as a representation made otherwise than in the course of giving evidence in the proceeding in which the evidence of the representation is sought to be adduced. A fact that the person may reasonably be supposed to have intended to assert by a representation is referred to in Part 3.2 as “an asserted fact” (s 59(2)). It will be necessary in due course to consider what is encompassed by “representation”.

11. The apparently blanket prohibition on the admissibility of hearsay evidence is subject to a number of exceptions. By s 81 (which appears in Part 3.4, dealing with admissions) the rule prohibiting the admission of hearsay evidence does not apply to evidence of an “admission”. The Crown seeks to tender the evidence of the conversations, most particularly the various statements attributed to Ms Maniskas, as admissions.

12. “Admission” is defined in the Dictionary to the Evidence Act as:

“... a previous representation that is:

(a)   made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b)   adverse to the person’s interest in the outcome of the proceedings.”

13. None of the statements upon which the Crown seeks to rely was made by the respondent. Prima facie, therefore, they are not subject to the exception to the hearsay rule provided by s 81, which is expressly limited to previous representations made by parties to proceedings.

14. The Crown seeks, however, by the operation of s 87(1)(c) of the Evidence Act, to attribute to the respondent the statements made by Ms Maniskas to RS. Section 87 provides:

87 Admissions made with authority

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:

(a)   when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or

(b)   when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority, or

(c)   the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

(2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove:

(a)   that the person had authority to make statements on behalf of another person in relation to a matter, or

(b)   that the person was an employee of another person or had authority otherwise to act for another person, or

(c)   the scope of the person’s employment or authority.”

The primary judgment

15. As indicated above, the question of the admissibility of the evidence was presented to the trial judge on the morning that the respondent’s trial was due to commence, and the argument continued into the following day. His Honour then delivered an ex tempore judgment, after which the Crown sought and was granted an adjournment of the trial to enable this appeal to be brought.

16. His Honour gave two principal reasons for rejecting the evidence. First, he was:

“… not persuaded that reasonable evidence as to participation as a counterparty to an illicit sale transaction is a sufficient basis for concluding that A [the respondent] and B [Ms Maniskas] are co-conspirators, or participants in a joint criminal enterprise or were otherwise in pursuit of a common purpose that might found the admissibility of the material sought to be relied upon on the basis that the representations were made in its furtherance.

The provisions of s 87 are predominantly, if not entirely, concerned with implied or attributed permission to speak on behalf of another and so founded upon notions akin to agency and authority. It does not follow that simply because two persons are willing participants on either side of a sale transaction that they are relevantly in pursuit of a common purpose, or each party to some agreement that would confer upon B the relevant characteristics of agency or authority or extend to that person any basis for attributing or implying authority to speak on behalf of the other.”

17. Secondly, he was not persuaded that any of the representations relied upon by the Crown was properly characterised as having been made in furtherance of any common purpose; rather, he considered that they were:

“… in the nature of gratuitous utterances by B to C [RS] concerning the arrangements B has made to obtain the drugs B intends to sell to C and concerning the location and movements of and other miscellaneous information about the person from whom B asserts she is obtaining the drugs.”

18. It is fair to interpret these passages as conclusions that, in the language of s 87, it was not reasonably open to find either:

(i) that the respondent and Ms Maniskas shared a common purpose; or

(ii) that the statements were made in furtherance of any such common purpose.

19. It also appears to me that, in the latter conclusion, his Honour was not prepared to find that the statements were, for the purposes of s 87, “representations” because they had no factual content, such as to be encompassed within the term “representation”. It is for that reason that it will be necessary to return to the meaning of that term as it is used in the Evidence Act.

The appeal

20. The Director takes issue with both of the reasons given by the trial judge.

21. As a preliminary matter it is appropriate to address some issues concerning s 87. It is relevant to bear in mind that s 87 applies in both criminal and civil proceedings.

22. The issue of the admissibility of the evidence was presented to the trial judge, and to this Court, on the assumption (which I consider to be erroneous) that s 87 is directed to the admission of evidence in substantive proceedings. Examination of the chapeau to s 87 shows that it is directed to an intermediate question: should a representation made by a third party be admitted “for the purpose of determining whether a previous representation made by a person [who may or may not be a party to the substantive proceedings] (‘X’) is to be taken to be an admission by a party “to the substantive proceedings (‘Y’)”. For that purpose, the court is obliged (“is to”) admit the evidence of the representation if it is reasonably open (on other evidence) to find:

(i)   that the person who made the representation (X) shared a common purpose (whether lawful or not) with a party to the proceedings (Y) (or one or more persons including Y);

(ii)   that the representation was made by X in furtherance of that common purpose [as will be seen below, the use of “that common purpose” is contentious].

23. The court must then determine whether evidence of the previous representation made by X is to be taken to be an admission by Y; and, if it so determines, whether evidence of the admission should be admitted against Y in the substantive proceedings. Thus, satisfaction of the s 87(1)(c) criteria is a step towards the admission of the evidence in the substantive proceedings.

24. In R v Macraild (unreported, NSWCCA, 18 December 1997), in a decision with which I agreed, Dunford J held:

“Section 87 reproduces the common law relating to representations made by co-conspirators: Ahern v The Queen (1988) 165 CLR 87; or in furtherance of a common purpose: Tripodi v The Queen (1961) 104 CLR 1.”

Immediately before that statement, his Honour said:

“The evidence was also admissible pursuant to s 87(1)(c) as representations made by persons … in furtherance of a common purpose in which the Crown alleged [those persons] were jointly engaged with the appellant.”

In the light of what I have said above, that statement may not be entirely accurate – that is, satisfaction of the s 87(1)(c) criteria does not render evidence of the representation admissible in substantive proceedings. That question requires a further evidentiary decision.

25. In Elomar v R (2014) 300 FLR 323; [2014] NSWCCA 303 at [289] this Court (in a decision to which I was also a party) said:

“289. Section 87(1)(c) is an exclusionary rule. It specifically permits – and requires – the admission of evidence tendered as an admission made with authority where it was made in furtherance of a common purpose. That is evidence that otherwise would be excluded by the hearsay rule.”

That statement also might need further consideration. Section 87(1)(c) states an inclusionary rule, but a rule that is inclusionary for the limited purpose of determining whether a previous representation made by one person should be taken to be an admission by a party to the proceedings. It does not, as set out above, finally determine admissibility in substantive proceedings.

26. The second thing to observe about s 87(1) is that it contains no element of discretion. If, having applied the test - was it reasonably open to find both common purpose and a representation made in furtherance of the common purpose? - the court is required to admit the evidence (although, as I have explained, for a limited purpose).

27. With those preliminary observations, it is convenient to turn to the issues raised in the appeal.

(i) “common purpose”

28. On behalf of the Director it was contended that the trial judge was in error in failing to be persuaded that it was reasonably open to find that a common purpose between the respondent and Ms Maniskas had been demonstrated. The principal argument advanced was that authority has established that s 87(1)(c) permits (and requires) admission of evidence of representations made by a person who shares a common purpose with a party to the proceedings, not only in furtherance of the common purpose alleged, but also of any common purpose. The authority for this proposition was said to be Elomar at [288]-[289].

29. Reliance on Elomar for this purpose was misconceived. There is nothing in [288]-[289] of Elomar that supports the proposition.

30. The Director also relied on the decision of this Court in R v Watt [2000] NSWCCA 37. In that case Mr Watt was charged with the supply, between 26 January 1996 and 6 March 1996, of a commercial quantity of methylamphetamine. The actual supply was alleged to have been made by a David Bowman, acting on behalf of Mr Watt. The Crown tendered evidence of a recorded conversation between Bowman and another man (as it happened, an undercover operative) on 5 March, in which there was discussion implicating Mr Watt in the possible further supply on a later date – “on Thursday”. Greg James J, with whom Grove J agreed, said:

“32. In my view, for that conversation to be admissible against this appellant as an admission by him as made by the speaker with his authority, the trial judge merely had to be satisfied that it was made in furtherance of a (not the) common purpose (s 87 (1)(c)), and that there was reasonable evidence of preconcert between them for that purpose (as there was) (bold in original).

33. In this case, the common purpose charged was that in furtherance of which the statement was made because it included the supply on the charged dates and on others (see Regina v Macraild (CCA, unreported, 3 November 1997 at 7, per Dunford J).

31. Hidden J took a different view. His Honour said:

“9. However, it was also necessary for the statements to have been made in furtherance of the alleged common purpose. In my view, there were several statements of Bowman in his telephone conversations with the undercover officer which might have fallen into that category. However, as I have said, his Honour ultimately had regard only to the tape recorded conversation of 5 March. On that occasion it was the undercover officer who introduced the appellant into the conversation, and the only statements of Bowman relating the appellant to the supply of drugs were the references to the possibility of arranging ‘another eight’ on the following Thursday.

10. True it is that those statements tend to identify the appellant as involved with Bowman in the supply of drugs. Nevertheless, the charge against the appellant was of his knowingly taking part in the supply of methylamphetamine between 21 January and 6 March 1996 (5 March being the day of the last meeting between Bowman and the undercover officer, and the day of the appellant’s arrest). Statements about the possible supply by the appellant of drugs on a day well outside that period could not be characterised as being in furtherance of the common purpose embraced by the offence charged.”

32. If, by his short judgment, Greg James J intended to say that s 87(1)(c) permits (and requires) the admission of evidence of a representation made by a third party in furtherance of a common purpose unrelated to the common purpose alleged by the Crown, I would respectfully disagree. In my opinion it is clear from the terms of s 87(1)(c) that evidence of a representation made by a person who shares a common purpose with the party to the litigation is confined to representations made “in furtherance of” the common purpose alleged. It is clear from [33] of Watt that the observation made in [32] was not essential to the conclusion that the evidence was admissible. That is because his Honour held that the statement was, as a matter of fact, made in support of the alleged common purpose on which the Crown relied, as well as an additional one.

33. Even if the statutory construction I favour is not correct, it is difficult to see how a representation made by a person in furtherance of a common purpose extraneous to the proceedings could pass the relevance test: Evidence Act s 56(2). In this respect I agree with the observations of Rothman J in R v Scott Alan May (No 2), [2008] NSWSC 595. At [25] his Honour said:

“25. It seems Watt has been misunderstood by some. The statement of principle by Hidden J on the operation of s 87 (1)(c) of the Act is not challenged by the remainder of the court, and, with respect, could not be. The difference in the approach to the disputed evidence in Watt is that Hidden J construed the conversation as in furtherance of a common purpose that was not relevant to the charge then before the court. The majority construed the conversation as, at least in part, in furtherance of the common purpose that was then the subject of the proceedings.

26. As in most cases, in Watt the existence of another uncharged common purpose (and representations made in furtherance thereof) was not relevant to, and would be excluded from, proceedings in relation to the charge before the court.”

34. The second point made on behalf of the Director has more substance (but limited relevance). It was that it is immaterial that Ms Maniskas might have been engaged in a separate common purpose with RS; the question was whether it was reasonably open to find that the respondent and Ms Maniskas shared a common purpose. That question, it was submitted, ought to be answered affirmatively; the common purpose was the sale by the respondent, and the purchase by Ms Maniskas, of the heroin.

35. By way of response on behalf of the respondent, it was submitted that the respondent and Ms Maniskas had different objectives – different “purposes” - in the transaction: the respondent’s purpose was to sell, and Ms Maniskas’ purpose was to purchase the drugs.

36. I would reject the respondent’s contention. A transaction of sale and purchase necessarily has two components, but the participants have a common goal: completion of a transaction pursuant to which property is passed from one to the other. In this respect, I consider that the conclusion of the trial judge that:

“… it does not follow that simply because two persons are willing participants on either side of a sale transaction they are relevantly in pursuit of a common purpose …”

was in error. It is inescapable that, on the evidence, it was reasonably open to find that the respondent and Ms Maniskas had a common purpose.

37. The Director was correct to argue that any separate arrangement between the respondent and Ms Maniskas did not impinge on the existence of that common purpose (and I did not understand the respondent to suggest otherwise). That question is not presently material.

38. Counsel for the respondent made another important point, arising out of what has been held (in Macraild) to be the importation of the “co-conspirator’s rule” into s 87. In both Tripodi v The Queen (1961) 104 CLR 1 and Ahern v The Queen (1988) 165 CLR 87 the High Court held that the rule could only be applied to admit evidence of the acts or statements of one conspirator against another where there was “reasonable evidence”, extraneous to the evidence in question, that a common purpose existed. In Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794, Gray J held that the same applies to s 87(1)(c) – that is, there must be evidence extraneous to the representations sought to be relied upon to establish the existence of a common purpose.

39. This does not appear to have been an argument put to the trial judge and he made no findings relevant to it. However, there was a good deal of evidence from the surveillance officers, and evidence of RS apart from her evidence of the representations the subject of the appeal, capable of supporting a finding that such a common purpose existed. It is to be borne in mind that the test imposed by s 87 – it is reasonably open to find – is not a demanding one.

40. In my opinion, the trial judge was in error in failing to find, in the terms of s 87, that it was reasonably open to find that the respondent and Ms Maniskas were parties to a common purpose.

(ii) was a “representation” made?

41. A number of observations about the relevant legislation need to be made.

42. First, the word “representation” appears in s 59, s 87, and in the definition of “admission” in the Evidence Act. Its meaning is central to the issues involved in this appeal. The Dictionary (which is usually taken to define terms) to the Evidence Act contains an entry under “representation”, but it is an entry that does not have the usual indicia of a definition. It provides:

“representation includes:

(a)   an express or implied representation (whether oral or in writing), or

(b)   a representation to be inferred from conduct, or

(c)   a representation not intended by its maker to be communicated to or seen by another person, or

(d)   a representation that for any reason is not communicated.”

43. This entry leaves open the meaning of the word “representation”. In Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60, the High Court said:

“21. ’Representation’ is often used in the law to refer to words that are intended to induce action or inaction by the person who hears or reads them. It may, therefore, seem to be an unusual word to use in this context. [the context was s 59 of the Evidence Act] But it is clear from the Interim Report of the Law Reform Commission on evidence that, in the proposals that were later formulated in the [Evidence Act], the term ‘representation’ was used to apply to statements and to conduct and was used to encompass all that those statements or that conduct would convey to the observer. It is also clear that the proposal was intended to resolve:

‘the issue of whether the proposed rules should apply to implied assertions as well as express assertions, by recommending that a distinction be drawn between intended and unintended implied assertions, with the latter outside any hearsay rule’.

In its Interim Report, the Commission went on to state why it excluded unintended implied assertions from the operation of a hearsay rule and its exceptions. Chief among those reasons was the conclusion that it is unlikely that the person making some implied assertion would deliberately attempt to mislead if the implied assertion was not intended.

22. Section 59 must be understood in this light. The rule’s operation requires consideration first of why it is sought to lead evidence of something said or done out of court (a previous representation). What is it that that ‘previous representation’ is led to prove? In particular, is it sought to lead it to prove the existence of a fact that the person who made the representation intended to assert by it? The fact that the statement or the conduct concerned might unintendedly convey some assertion is not to the point. The inquiry is about what the person who made the representation intended to assert by it.”

44. In Australian Competition and Consumer Commission v Pratt (No 3) [2009] FCA 407; (2009) 175 FCR 558 Ryan J noted the Evidence Act Dictionary entry with respect to “representation” and turned to dictionary definitions to ascertain its meaning as used in the Evidence Act. Referring to the second edition of the Oxford English Dictionary, he quoted:

“4.a The action of placing a fact etc before another or others by means of discourse or account esp. one intended to convey a particular view or impression of a matter in order to influence opinion or action.”

and, from the third edition of the Macquarie Dictionary:

“14 a description or statement of things true or alleged.”

45. To my mind, subss (1) and (2) of s 59 make reasonably plain that the concept underlying “representation” as used in the Evidence Act is that the existence of a fact or state of facts is asserted. The entry in the Dictionary is designed to broaden the means by which, for the purpose of the admissibility or otherwise of evidence of the representation, the assertions of the existence of a relevant fact may be conveyed. Indeed, the entry allows for “representation” to include the assertion of the existence of a fact that is not conveyed or communicated. There is an important, though subtle, distinction between what was intended to be asserted, and what was conveyed, or intended to be conveyed, by the person who made the “representation”. But the hallmark of the concept is the assertion of a fact or a state of facts.

46. As the Dictionary entry makes clear, it is not necessary that the existence of a fact intended to be asserted by the maker of the representation was also intended to be conveyed by that person. Paragraph [22] of Lee makes the same point.

47. There can be little doubt that “representation” was intended to have the broadest application. It includes non-verbal representations to be inferred from conduct, and representations not intended to be, and not, communicated.

48. As I have mentioned above, taken in isolation, the statements attributed to Ms Maniskas assert little in the way of factual matter. In this case, those statements should not be treated in isolation from the conduct to which they were an accompaniment – that is, the transport of Ms Maniskas by RS from place to place, and the activities by Ms Maniskas in (on the Crown case) obtaining drugs and the exchange of money for drugs. Those activities (assuming the jury accepted the evidence of RS and the surveillance officers) gave context to the words attributed to Ms Maniskas. Taken together, they could readily be seen as representations (that Ms Maniskas was obtaining drugs) that could then, by operation of s 87(1)(c), be attributed to the respondent as admissions.

49. The Director relied on the evidence of the statements attributed to Ms Maniskas and did not argue that those statements were so intricately entwined with the conduct of which RS would give evidence that they could not be separated. But it is entirely artificial to separate the two. The conduct gave context and meaning to the statements and conversations. Moreover, by reason of para (b) in the “representation” entry in the Dictionary, a “representation” could be inferred from Ms Maniskas’ conduct in directing RS to drive to the various locations and in leaving the car and returning with heroin. It would be open to a jury to infer from the conduct of Ms Maniskas in directing RS where to drive, in leaving the vehicle and returning with heroin and in paying money, that Ms Maniskas was representing that she could (and did) obtain and supply the drug to RS. The conversations are capable of throwing some light on that conduct and the conduct is capable of throwing light on the conversations and statements.

50. As I have indicated above, it seems to me that the correct interpretation of the trial judge’s reasons is that the statements made by Ms Maniskas were not “representations” for the purpose of s 87(1)(c) because they were, in effect, devoid of factual content.

51. In my opinion, that was not correct. The statements, in the light of the accompanying conduct, were capable of interpretation by a jury as containing assertions of fact such as to constitute representations.

(iii) “in furtherance of the common purpose”?

52. It also appears from the judge’s reasoning that he did not consider it reasonably open to find that the statements attributed to Ms Maniskas were made “in furtherance” of the common purpose.

53. The notion of “in furtherance of the common purpose” is part of the “co-conspirator’s rule” (referred to in Macraild as the forerunner or predecessor of s 87(1)(c)). The co-conspirator’s rule was succinctly stated in Ahern at 94-95 as:

“…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 implies 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 the 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.” (internal citation omitted)

The reference was to Tripodi.

54. It was not necessary in Ahern (and, it seems, it has rarely been necessary) to explore what is encompassed by “in furtherance of” or “in pursuance of”. But in Tripodi, passing reference was made to the question. The court (Dixon CJ, Fullagar and Windeyer JJ) said:

“It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise.” (italics added)

55. In Landini v State of NSW [2007] NSWSC 259, Hall J noted what he called “the preconditions” of s 87(1)(c), of which the fourth was:

“(d) The phrase ‘in furtherance of’ carries with it the ordinary English Dictionary meaning encapsulated in the word ‘furtherance’, namely, the fact of being helped forwards; the action of helping forwards; advancement, aid, assistance … in the context of s 87(1)(c), it denotes an act done to advance, aid or help a common purpose whether that purpose is a lawful or not.”

56. Again, if taken in isolation, the statement attributed to Ms Maniskas might seem little more than (as the trial judge called them) “gratuitous utterances”. But when taken with the evidence of RS, they are capable of establishing that the expeditions undertaken by RS and Ms Maniskas were for the immediate purpose of the purchase of heroin by Ms Maniskas. It is immaterial that a secondary purpose may have been a further sale, by Ms Maniskas to RS. It was reasonably open to find that the representations said to have been made by Ms Maniskas, orally and in the context of her conduct, advanced the object of the agreement Ms Maniskas was said to have had with the respondent.

56. It follows from what I have said that the trial judge ought to have held that it was reasonably open to find:

(i)   that the respondent and Ms Maniskas shared a common purpose; and

(ii)   that Ms Maniskas made representations in furtherance of that common purpose

and should therefore have admitted evidence of those representations in the determination of whether those representations ought to be taken to be admissions by the respondents.

58. The question before his Honour was not whether evidence of those representations ought to be admitted in the trial. That was a subsequent question to which, for example, ss 84, 85 and 86, and ss 135 and 137 of the Evidence Act may need consideration. (In Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [No 4] [2006] NSWSC 90, McDougall J held that s 87 does not exclude the application of s 135).

Jurisdiction

59. For this Court to have jurisdiction under s 5F(3A) of the Criminal Appeal Act, it is necessary that the appellant establish that the effect of the ruling is to eliminate or substantially weaken the prosecution case.

60. On behalf of the respondent it was conceded that the jurisdictional test was passed, in that the evidence of the audio recordings is a substantial and important part of the prosecution case, absence of which would substantially weaken that case. Initially, I was sceptical about whether this concession was properly made, but, on reflection, I am satisfied that it was.

61. It is clear from what I have said that in my opinion the appeal must be allowed. The question is what orders ought to be made.

62. As mentioned at the outset of these reasons, the Director seeks, not only an order that the ruling made by the trial judge on 27 February 2018 be vacated, but also an order that the evidence sought to be relied on by the Crown is admissible.

63. An order of the latter kind can seldom be appropriate in an appeal under s 5F(3A) of the Criminal Appeal Act. What is litigated in such an appeal is confined to the basis on which the evidence was rejected. That basis may be found to be erroneous, but it does not follow that the evidence is therefore admissible. There may be other reasons, not yet apparent, or not yet raised, that makes the evidence inadmissible, or raise discretionary issues for consideration before a final determination is made. The most this Court should, in my opinion, do, in the ordinary case, is declare that the evidence is not inadmissible on the basis on which it was, at first instance, rejected. In this case, as I have indicated, there are other issues pertaining to the admissibility of evidence of admissions.

64. The orders I propose are:

1.   Appeal allowed;

2.   The rulings made on 27 February 2018 rejecting the tender of certain evidence proposed to be led by the Crown set aside.

65. JOHNSON J: I agree with the reasons and proposed orders of Simpson AJA.

66. HARRISON J: I agree with Simpson AJA.

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Decision last updated: 19 August 2019