R v Eade

[2002] NSWCCA 257

Reported Decision: (2002) 131 A Crim R 390

New South Wales

Court of Criminal Appeal

CITATION:	Regina v. EADE [2002] NSWCCA 257
FILE NUMBER(S):	CCA 60438/01
HEARING DATE(S):	23 April 2002
JUDGMENT DATE:	28 June 2002
PARTIES :	Regina - respondent Wayne James Eade - appellant
JUDGMENT OF:	Hodgson JA at 1; Hidden J at 57; Smart AJ at 58

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0010
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	Mr. T. Game SC with Mr. M.R. Bromwich for appellant Mr. Barrett for respondent
SOLICITORS:	Andrews Solicitors for appellant S.E. O'Connor for respondent
CATCHWORDS:	CRIMINAL LAW - EVIDENCE - admissibility of evidence of conversation obtained contrary to Listening Devices Act 1984 - Whether transcript of evidence before Royal Commission was evidence of the conversation - CRIMINAL LAW - prohibited drugs - incitement to supply - Whether tehre can be incitement to supply to oneself
LEGISLATION CITED:	Evidence Act 1995 Listening Devices Act 1984 Royal Commission (Police Service) Act 1994
CASES CITED:	Castle v. Olsen (1985) 3 NSWLR 26 R v. Assistant Recorder of Kingston-upon-Hull; Ex parte Morgan [1969] 2 QB 58 R v. Downey (1992) 66 ACrimR 1 R v. Eade (2000) 118 ACrimR 449 R v. Massie (1993) 103 ACrimR 551 Young v. Cassells (1914) 33 NZLR 852
DECISION:	Appeal dismissed.

60438/01
99/11/0010

HODGSON JA
HIDDEN J
SMART AJ

Friday 28 June 2002

REGINA v. Wayne James EADE

Judgment

1 HODGSON JA: On 7 May 2001, the appellant was arraigned on an indictment containing two counts.

2 The first charged that the appellant on 7 September 1995 at Sydney in the State of New South Wales, being a witness at a hearing before the Royal Commission into the New South Wales Police Service, knowingly gave false testimony, namely, that he had never engaged in any form of illegal conduct, which was testimony touching a matter material in an inquiry being made by the said Royal Commission into the New South Wales Police Service.

3 The second charged that the appellant on 12 September 1995 at Green Point in the State of New South Wales, did incite Therese Hart to supply a prohibited drug, namely, 3,4 Methylenedioxyamphetamine (Ecstasy).

4 The appellant pleaded not guilty to both counts. A trial before Kinchington DCJ and a jury commenced on 14 May 2001, and concluded on 18 May 2001, with a guilty verdict on both counts. The appellant was sentenced to a fixed term of fifteen months imprisonment on the first count, and a cumulative sentence of six months on the second count.

5 The appellant has appealed to this Court against his conviction on two grounds:

The learned trial judge erred in admitting into evidence at the trial of the appellant transcripts of evidence before the Royal Commission into the New South Wales Police Service that contained evidence of conversations obtained in contravention of s.5 of the Listening Devices Act 1984.

The learned trial judge erred in ruling that the appellant had a case to answer in relation to the charge of inciting the supply of a prohibited drug having regard to the particulars relied upon by the Crown.

6 The case involved a consideration of the effect of ss.12 and 13 of the Listening Devices Act 1984 (NSW), which are as follows:

12. In this Part, a reference to the giving of evidence of a private conversation that has come to the knowledge of a person as a result of the use of a listening device includes a reference to the production of a record of such a private conversation.

13(1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5:
(a) evidence of the conversation, and
(b) evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person,
may not be given by that person in any civil or criminal proceedings (including proceedings for or in connection with the grant of bail).
(2) Subsection (1) does not render any evidence inadmissible:
(a) if all of the principal parties to the private conversation concerned consent to the evidence being given,
(b) if the private conversation concerned comes to the knowledge of the person called to give the evidence otherwise than in the manner referred to in that subsection, notwithstanding that the person also obtained knowledge of the conversation in such a manner,
(c) in proceedings for an offence against this Act or the regulations, or
(d) in proceedings for:
(i) an offence punishable by imprisonment for life or for 20 years or more, or
(ii) a serious narcotics offence,
(or in proceedings for or in connection with the grant of bail in any such proceedings) if the court considers that the evidence should be admissible.
(3) In determining whether to admit evidence as referred to in subsection (2) (d), the court shall:
(a) be guided by the public interest, including where relevant the public interest in:
(i) upholding the law,
(ii) protecting people from illegal or unfair treatment, and
(iii) punishing those guilty of offences, and
(b) have regard to all relevant matters, including:
(i) the seriousness of the offence in relation to which the evidence is sought to be admitted, and
(ii) the nature of the contravention of section 5 concerned.
(4) The court before which any proceedings referred to in subsection (2) (c) or (d) are brought may, at any stage of the proceedings and from time to time, make an order forbidding publication of any evidence, or of any report of, or report of the substance, meaning or purport of, any evidence referred to in subsection (2) (c) or (d).
(5) A person shall not contravene an order made under subsection (4).
Maximum penalty (subsection (5)): 20 penalty units or imprisonment for a term of 12 months, or both.

7 It is common ground that the second count amounted to a charge of “a serious narcotics offence” within s.13(2)(d)(ii). The following definition of “private conversation” appears in s.3(1) of the Act:

"private conversation" means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:
(a) by themselves, or
(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so.

CIRCUMSTANCES

8 The appellant was a serving police officer in 1995. In May 1995, he was served with a summons to attend the Police Royal Commission as a witness. On 25 August 1995, warrants were obtained, purportedly under the Listening Devices Act, to install listening devices in premises owned by one Ms. Hart.

9 The appellant visited those premises on 27 August 1995, 30 August 1995, and 12 September 1995, and his conversations with Ms. Hart on those occasions were recorded on audio and video tapes.

10 The appellant gave evidence at the Police Royal Commission on 7 September 1995 and 11 December 1995. On the former occasion, he gave evidence that he had never engaged in any form of corrupt or illegal conduct. On the latter occasion, he was cross-examined on the basis of the recording of his conversations with Ms. Hart. He was later charged with the offences identified above.

11 The matter came on for trial before Kinchington DCJ. Before a jury was empanelled, Counsel for the appellant sought a ruling as to the admissibility of evidence obtained as a result of the use of listening devices. Kinchington DCJ ruled that the evidence should be admitted. The appellant appealed to the Court of Appeal, and the appeal against this ruling was upheld (R. v. Eade [2000] NSWCCA 369).

12 The Court of Appeal held that the warrants obtained on 25 August 1995 were invalid, so that the giving of evidence resulting from the use of listening devices was restricted by s.13 of the Listening Devices Act. However, the Court of Appeal ruled that s.13 does not exclude evidence by a principal party to the conversation which was illegally recorded, and that the admission of the recording must be determined under s.138 of the Evidence Act, the onus being on the Crown.

13 In his judgment on this point, Greg James J said the following:

For myself, I add that the submissions on behalf of the appellant that s.13 of the Listening Devices Act 1984 would permit, in the exercise of discretion, evidence of the conversation to be led on count one, but would bar that evidence on count two, appear to have been based upon a view that s.13(3) applies whether evidence of the conversation were to be given by Ms. Hart or any other witness. But the position may be different, depending upon whether the witness giving evidence of the conversation was a participant in it or whether the conversation otherwise came to the knowledge of the witness (s.13). In the latter event, the submission would appear to be correct, but in the former event, I agree that the analysis on which Kirby, J. has embarked of the constructions of the section is necessary.

In the event that the evidence is to be led through Ms. Hart, since she was a party to the conversation and the recording was made with her complicity, she may communicate or publish to another person the record of the conversation made by use of the device (s.7(2)(b)).

Evidence may be given by her of the conversation by using the record to revive her memory. Section 13 would not apply and hence s.13(3) in particular would not be applicable. But because matters of illegality or impropriety may arise as a result of her complicity in the recording which was in breach of s.5, questions of discretion under s.138 of the Evidence Act 1995 will need to be considered.

Although the criteria under s.138 are not precisely the same as those under s.13(3), since they speak to a more general position, nonetheless in the particular circumstances the precise application of them would appear to be very much to the same substantive effect as those under s.13(3).

14 Section 138 of the Evidence Act is in the following terms:

138(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

15 As noted above, the trial proceeded in May 2001. The Crown contended that Kinchington DCJ should exercise his discretion under s.138 in favour of the Crown, and either admit the audio and video tapes into evidence through Ms. Hart, or at least allow Ms. Hart to refresh her memory therefrom if necessary in order to give evidence as to the conversations and the events recorded in those tapes. This was opposed by Counsel for the appellant.

16 Kinchington DCJ expressed himself as satisfied that there had been no impropriety or recklessness by persons involved in the use of the listening devices and that any illegality was of a technical nature; and that there would be no unfairness to the appellant in admitting the tapes into evidence. Accordingly, he exercised his discretion under s.138 in favour of the Crown and admitted the tapes into evidence. In those circumstances, he saw no need to rule on the alternative proposition that Ms. Hart refresh her memory from them.

17 The transcript of the appellant’s evidence before the Police Royal Commission on 7 September 1995 and 11 December 1995 was tendered before the jury and admitted over objection. It was agreed between the Crown Prosecutor and Counsel for the appellant that it was not necessary for the Crown to call the court reporters who made the transcript.

18 The video and audio tapes of the conversations on 27 August 1995, 30 August 1995, 7 September 1995 and 12 September 1995 were tendered and admitted on the basis that Ms. Hart was to be called as a witness. They were played while Ms. Hart was in the witness box.

19 The appellant gave evidence at the trial, and was cross-examined by reference both to the material on the video and audio tapes and the transcript before the Police Royal Commission. As noted earlier, he was convicted.

GROUND 1: ERROR IN ADMITTING TRANSCRIPTS

20 It is to be noted that there is no challenge made in this appeal to the primary judge’s exercise of his discretion under s.138 of the Evidence Act, and there is no challenge made to the admission into evidence of the video and audio tapes: the challenge under this ground is only to the admission of the transcript of evidence before the Police Royal Commission.

21 Mr. Game SC for the appellant submitted that parts of the transcripts of evidence before the Police Royal Commission contained quotations of parts of the illegally-recorded conversations, and also statements of the substance of and summaries of such conversations. Accordingly, he submitted, they were evidence of the conversations within s.13(1)(a) of the Act. Furthermore, the conversations in question had come to the knowledge of the Commissioner (Wood CJ at CL), Counsel assisting (Ms. Bell) and the court reporters who recorded the transcript as a result of the use of listening devices in contravention of s.5 of the Act, within the meaning of s.13(1) of the Act. Accordingly, he submitted, all those persons were precluded from giving evidence of the conversations, and that included the production of a record of the conversations (s.12). The transcript of the Police Royal Commission was a record of the conversation, contributed to by Commissioner Wood and Ms. Bell and actually recorded by the court reporters, therefore it could not be given in evidence.

22 Mr. Game submitted that the transcript did not fall within any of the exceptions in s.13(2), apart from s.13(2)(d)(ii). The appellant, being one of the principal parties, did not consent (s.13(2)(a)), and the conversation did not come to the attention of any of these persons otherwise than as a result of the use of listening devices (s.13(2)(b)). On these matters, the onus lay on the Crown which asserted admissibility.

23 Mr. Game conceded that, as regards the second count in the indictment, the case fell within s.13(2)(d)(ii); and did not contend that any exercise of discretion under s.13(3) should go the appellant’s way; but he submitted that the second count was knocked out by the second ground of appeal.

24 Mr. Barrett for the Crown submitted that the relevant transcript, namely that of 11 December 1995, was evidence not of the conversations but of what was said at the Police Royal Commission, this being relevant to prove both the falsity of the appellant’s testimony of 7 September 1995 and also his lack of belief in the truth. Mr. Barrett referred to s.9 of Royal Commission (Police Service) Act 1994 (NSW).

25 He also submitted that, because the Royal Commission evidence was directly a result of information and evidence from Ms. Hart and only partly and indirectly for use of the listening device, it was rendered inadmissible by the Listening Devices Act: see R v. Downey (1992) 66 ACrimR 1.

26 In my opinion, it is important first to note that “private conversation” in s.13(1) means “any words spoken” in the circumstances set out in the definition; so what is being referred to is not the mere fact of the occurrence of a private conversation, or even just the whole or the substance of its contents, but extends to “any words spoken” during the course of the conversation.

27 In so far as the transcript of the Police Royal Commission for 11 December 1995 includes quotations from tapes obtained by use of listening devices, it is in my opinion fanciful to suggest that knowledge of those words by the persons using them (Commissioner Wood and Ms. Bell) or the persons recording them (court reporters) was other than a result, direct or indirect, of the use of the listening devices. It may well be that the fact of the conversations and their general tenor became known to Ms. Bell and Commissioner Wood, at least, through Ms. Hart; but at least the precise quotes used must have come to their knowledge, and through them to the knowledge of the court reporters, through the use of the listening device. Although it is not quite so clear, in my opinion, the same must apply to those questions which used the substance of parts of the conversations rather than exact words.

28 I accept the submission of Mr. Game that the appellant should not be disadvantaged because he did not insist that the court reporters be called at the trial, so if the evidence notionally given by the court reporters through the transcript is “evidence of the conversation” within s.13(1) of the Act, the giving of such evidence would be prohibited. The question thus is, is such evidence, namely the evidence of the court reporters through the transcript, “evidence of the conversation”, that is, evidence of “words spoken” in the conversation.

29 In my opinion, in so far as the court reporters through the transcripts gave evidence of questions asked by Ms. Bell or Commissioner Wood in which words were quoted or the substance of parts of the conversation given, this is only evidence of questions asked and cannot be evidence of the conversation or of words spoken in them.

30 In so far as the court reporters gave evidence of answers by the appellant (which had to be understood by reference to the questions), this could amount to indirect evidence of the conversations and the words spoken in it, by way of admissions by the appellant. However, the question whether this material was therefore “evidence of the conversation” within s.13(1) must be considered in the light of the following two matters:

(1) The recordings themselves were already in evidence, and there was no suggestion that those recordings were otherwise than accurate or that there was any doubt about their authenticity.
(2) The substantial relevance of the transcript was not that it conveyed some of the contents of the conversations, but that it conveyed the appellant’s evidence concerning such matters.

31 If the recordings themselves had not been in evidence, and if the Crown had relied to any extent at all on the appellant’s admissions in order to prove the content of the conversations, I think the court reporters’ evidence of admissions by the appellant could be “evidence of the conversation” within s.13(1). However, in circumstances where there was absolutely no issue about the authenticity and accuracy of the recordings themselves which were in evidence, where the Crown did not rely at all on the appellant’s admissions to prove the content of the conversations, and where the transcript was led for a different purpose, the recordings were not in substance “evidence of the conversation”. Accordingly, in my opinion, this ground of appeal fails.

32 I note that these reasons depend to some extent on the circumstance that the recordings themselves were in evidence: as noted, that was not challenged below, except on the s.138 basis, or here. However, I should record that in my opinion there is another question which would, if the point were taken, need to be considered before a recording derived from illegal use of a listening device is admitted into evidence through one of the participants in the conversation. The only way the participant can lay the foundation for the admission of the recording is to say that he or she has listened to it and that it constitutes an accurate record of the conversation. However, the giving of evidence to that effect would in my view involve a response to a leading question, giving rise to the matters dealt with in s.37 of the Evidence Act.

33 “Leading question” is defined in the dictionary of the Evidence Act as follows:

"leading question" means a question asked of a witness that:
(a) directly or indirectly suggests a particular answer to the question, or
(b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked.

34 However identification of a recording of a conversation is raised with a witness who had no part in making the recording but did take part in the conversation, what in substance is being done is to have the witness assent to the conversation having occurred precisely as recorded; so inevitably a particular answer is suggested. The witness is not being asked what was said or even asked whether the conversation was in general terms to a certain effect; but rather, whether the very words recorded were in fact spoken. Accordingly, if objection were taken (s.37(1)(c)), then generally leave under s.37(1)(a) would be required, requiring consideration of the matters referred to in s.192 of the Evidence Act. The same discretionary considerations as supported the decision under s.138 may well have justified the giving of leave under ss.37 and 192 in this case; but it is my opinion a separate question.

35 As suggested in the earlier Court of Appeal decision, a participant could give evidence of the conversation using the record to revive memory. However, if this was to be done in court, leave would be required under s.32 of the Evidence Act, again bringing s.192 into play.

INCITING SUPPLY

36 At the hearing of the appeal, Mr. Game for the appellant sought leave to rely on an additional ground of appeal in relation to the second count, namely:

The trial judge failed to direct the jury adequately in relation to the second count in the indictment.

37 In order to deal with the original ground relied on concerning this count and also the additional ground, it is necessary to set out some circumstances.

38 On 28 October 1998, the appellant’s solicitors wrote a letter to the DPP requesting particulars of the charges, including the following particulars in relation to the second charge:

The Hart matter:
(a) On which day or days is it alleged that the accused incited Ms. Hart to supply a prohibited drug.
(b) To whom is it alleged the accused incited Ms. Hart to supply the said drug.
(c) What drug is it alleged the accused incited Ms. Hart to supply.
(d) What quantities of the specified drugs is it alleged the accused incited Ms. Hart to supply.
(e) Where the drugs in fact supplied.
(f) How is it alleged Ms. Hart purchased the drugs allegedly supplied.
(f) What statements and which parts of those statements of Therese Hart does the Director rely upon to establish the incitement.
(g) Has Ms. Hart made any other statements relevant to this matter to either police, Royal Commission investigators or the Royal Commission. Please supply copies of any such statements.
(h) In addition to those portion (sic) of Ms. Hart’s statements what other evidence does the Crown seek to rely upon to establish the offence.

39 By letter dated 23 November 1998, the DPP replied, and the relevant parts of the letter were as follows:

In relation to your request for particulars please be advised that the documentary material contained in the brief together with informations disclose the particulars of the matter and the evidence relied upon by the prosecution in support of the charges.

Without limiting the generality of the above, particulars are set out for your assistance. These particulars are set out to assist your understanding of the case the Prosecution will present at committal.

The Prosecution is not bound by the following particulars which do not purport to be a statement of the evidence which the Prosecution will present at committal.

The right is reserved to delete, add to vary or amend any particulars to the extent that such deletion, addition, variation or amendment may appear necessary or desirable in light of the evidence given at committal hearing, or further information which may come to the notice of the Prosecution.

…

In relation to the matter that you refer to as the “Hart matter” I confirm that your client has been charged with one count of Incite the Supply of a Prohibited Drug pursuant to s25/s27 of the Drug Misuse and Trafficking Act and one count of Give False Testimony pursuant to the Royal Commission Act.

In relation to the Supply charge the Crown can indicate the following particulars in response to your request:

a) It is alleged that Eade incited GDU 7 to supply a prohibited drug on 12 September 1995.
b) It is alleged that Eade incited GDU 7 Hart to supply the said drug to Steve McClelland.
c) It is alleged that Eade incited GDU 7 to supply ecstasy tablets.
d) Unknown.
e) Unknown.
f1) Unknown.
f2) The Crown relies on the brief of evidence as served on you by the PIC with particular reference to the following material:

· The statement of GDU 7 dated 29/10/1966, particularly paragraph 12.

· The Record of Interview between Taggart and GDU 7 dated 13/9/1995.

· The Record of Interview between Taggart and GDU 7 on 29/10/1996 particularly page 7 and 8.

g) GDU 7 participated in 25 Record of Interviews with officers from the Royal Commission that relate to her ongoing relationship with Eade and the drugs she obtained for him. I am advised that these Interviews comprise Volume 3 of the Brief of Evidence served on you on 25 June 1998.
h) In addition to the evidence of GDU 7 the Crown seeks to rely upon the following evidence:

· The Surveillance tape no. 41 (video and audio) dated 12/9/1995.

40 On 18 April 2001, the appellant’s solicitors wrote a further letter to the DPP on this matter, which included the following:

I refer to my letter dated 28 October 1998 by which I requested particulars to the charges that my client was then facing. I also refer to your letter dated 23 November 1998 supplying the particulars sought.

Although the Director's letter states that the prosecution is not "bound" by the particulars provided , I assume that in the absence of advice to the contrary, those particulars have not changed in any material way (apart from the no-billed Scott matter), whether by addition, amendment, variation or deletion. If that assumption is not correct, please advise me of any such addition, amendment, variation or deletion to 'the particulars supplied as a matter of urgency. As the trial is set down for 7 May 2001, please furnish any such advice by or before Monday 23 April 2001 in order that my client's case for trial may be properly prepared.

41 In its reply dated 26 April 2001, the DPP relevantly stated:

The facts on which the crown intends to rely have not changed in any material way. The indictment has not been changed.

42 It will be noted that in its letter of 23 November 1998, the DPP signified intention to rely on the surveillance tape dated 12 September 1995, and that tape set out the actual conversation which the Crown alleged amounted to the offence of inciting to supply. That tape includes a statement by the appellant “Steve wants some eccies”; a statement by Ms. Hart “Well, which is more important, your coke or Steve’s eccies?”; a statement by the appellant “Well how long is it to get the eccies?”; and a statement by Ms. Hart “Well, the eccies are gonna have to wait because it means if, if Steve’s not gonna give me some money for M I’m gonna have to do … roll something over for Kim’s brother, like I did for Con”.

43 In cross-examination, Ms. Hart agreed that there was no suggestion that she would give the drugs to Steve herself; and agreed that for all she knew, the appellant could have simply been seeking information under the pretext of obtaining a supply of ecstasy.

44 The trial judge agreed that the effect of the evidence of Ms. Hart was that the appellant had asked her to supply him with ecstasy, and that he had said he would pass it on to somebody else.

45 In summing up to the jury, the trial judge explained the meaning of the charge by saying “By ‘incited’ it is meant to urge somebody to do something”. He also gave the following directions:

As to the second charge which relates to 12 September 1995, I identified the essential elements in regard to that charge that the Crown must prove as being that on 12 September 1995 the accused incited the witness named Unwin to supply a prohibited drug, namely Ecstasy, to him. I then went on to deal with those essential elements.

So far as that second charge is concerned, before you can return a verdict of guilty on it not only must you be satisfied that the accused incited the person Unwin to supply the prohibited drug Ecstasy, but it is implicit in you so concluding and necessary for you to be satisfied from the accused's words and actions at that time that he intended Miss Unwin to procure the prohibited drug Ecstasy by those words.

...

As to the second count the Crown says, well that emanates from the conversation that took place on 12 September and is shown on the video tape exhibit "G". The Crown says that that evidence is clear, that there is a conversation, that he is urging, and intentionally urging Miss Unwin to obtain some eccie tablets for him under the pretext of getting them and passing them on to Steve McClelland an officer in the Police Force.

46 Mr Game submitted that there was no evidence that the appellant incited Ms. Hart to supply drugs to Steve, and that accordingly, that being the only offence particularised, there should have been a directed verdict in favour of the appellant.

47 He further submitted that the primary judge, having refused a directed verdict, permitted the Crown to address on the basis that the appellant was urging Ms. Hart to obtain ecstasy tablets for him under the pretext that he would pass them on to Steve; and thus that the Crown had been permitted to change its case after the close of evidence. Furthermore, Mr. Game submitted that a request by A to B to supply a drug to A cannot amount to inciting: otherwise, every time an addict requested a drug from a supplier, this would amount to the serious offence of inciting supply, and not the much less serious offence of possession.

48 Mr. Game submitted that, in his summing up, the trial judge did not put the case on the basis particularised by the Crown, or even as it was outlined during the hearing, that it was a matter of on-supply. Rather the trial judge put the case on the basis that the offence consisted of the appellant inciting the Ms. Hart to supply the drugs to him.

49 In my opinion, the identification of the person to whom the incited supply is to be made is not an element in the offence. A person accused of the offence of inciting is entitled to particulars, and there could be unfairness possibly amounting to a miscarriage of justice if the Crown case departed from particulars that had been given. In this case however, although the particulars identified Steve as the person to whom Ms. Hart was incited to supply drugs, the transcript of the conversation alleged to amount to the incitement was also supplied. The question whether this conversation amounted to an incitement to supply to Steve or to the appellant for on-supply to Steve, or whether the mention of Steve was merely a pretext, were matters of interpretation of the basic facts which were supplied to the appellant.

50 In those circumstances, in my opinion there was no unfair departure by the prosecution from the particulars it had supplied.

51 I agree with Mr. Game’s submission that a mere request by an addict to the addict’s supplier for drugs would not normally amount to the offence of inciting; but in my opinion that is not because the requested supply is to the person asking, but rather because in the normal case the element of incitement is absent. The element of incitement is generally absent in such cases because the drugs are being acquired from a person understood by the acquirer to be ready, willing and able to supply drugs forthwith to the acquirer; and incitement does not occur because it is not required.

52 One would expect incitement to occur only in those cases when a person is seeking a supply of drugs from another person not understood by the former to be ready, willing and able forthwith to supply the drugs as sought. It is in those cases that the extra element of incitement might occur, so as to bring it about that the other person is induced to become ready, willing and able to make the supply.

53 In Castle v. Olen (1985) 3 NSWLR 26, Yeldham J was dealing with an alleged offence of supplying a drug of addiction within an extended definition of “supply” which included “causing … exposure for sale”. At p.30, his Honour said this:

I am satisfied that more is required to constitute a “causing” than a mere request to a friend to obtain and sell to the person charged a prohibited drug. Certainly the evidence supports the view that the plaintiff sought from Pearce a supply to him for his own use. If the plaintiff had some authority over Pearce or was able to exert some pressure upon him to require him to procure the drug, then it would have been necessary to determine whether the fact that it was to be sold to the plaintiff for use by him and not for re-sale would, as counsel for the plaintiff submitted, affect the situation. In this respect the decision of the Court of Criminal Appeal in R v Coles [1984] 1 NSWLR 726 at 733-734, would be no doubt of relevance. I say nothing about that matter and leave it for determination when and if it later arises for consideration.

54 I see no reason why, if a person urges another person to go and obtain drugs so that the drugs may be supplied to the person doing the urging, that cannot amount to incitement to supply.

55 In the present case, there is no suggestion that Ms. Hart was holding herself out to the appellant as ready, willing and able forthwith to supply ecstasy to him, or that the appellant believed she was ready, willing and able to do this, so that all that would be required, in the appellant’s understanding, was a simple request. In circumstances where no such suggestion was being made, in my opinion there was no need to do more than the trial judge did to explain the offence, namely to draw the jury’s attention to the meaning of incite, and direct the jury that this is what had to be found beyond reasonable doubt against the appellant.

CONCLUSION

56 For those reasons, in my opinion the appeal should be dismissed.

57 HIDDEN J: I agree with Hodgson JA.

58 SMART AJ: The facts and circumstances are set out in the reasons of Hodgson JA with which I am in agreement. I add the following comments.

59 In Young v Cassells (1914) 33 NZLR 852 Stout CJ, in an oft quoted passage said: "The word 'incite' means to rouse; to stimulate; to urge or spur on; to stir up; to animate." In R v Massie (1998) 103 A Crim R 551 at 564 Brooking JA, with whom Winneke P and Batt JA agreed, said of 'incite', "common forms of behaviour covered by the word are 'command', 'request', 'propose', 'advise', 'encourage', or 'authorise'". Whether in a particular case what was said amounts to incitement depends upon the context in which the words were used, and the circumstances.

60 It was pointed out in Regina v Asst Recorder of Kingston [1969] 2 QB 58 at 62 that with the offence of incitement it is merely the incitement which constitutes the offence and that it matters not that no steps have been taken towards the commission of the substantive offence nor whether the incitement had any effect at all. In the present case the applicant urged Ms Hart to supply prohibited drugs.

61 I agree with the orders proposed by Hodgson JA.

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