R v Fischer (No 1)
[2012] SADC 186
•6 November 2012
District Court of South Australia
(Criminal)
R v FISCHER & ORS (No 1)
[2012] SADC 186
Reasons of His Honour Judge Slattery (ex tempore)
6 November 2012
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS
CRIMINAL LAW - EVIDENCE
Applicant is one of three co-accused charged with trafficking in a controlled drug – applicant seeks separate trials – applicant seeks to adduce evidence of discreditable conduct of a co-accused – applicant seeks have evidence of police search excluded – prosecution claims public interest immunity – applicant seeks exclusion of expert evidence.
Held: application refused. Record of interview to be amended to remove specific portions of excluded evidence.
Controlled Substances Act 1984 (SA) s32(3); Evidence Act 1929 (SA) s18, s34O, s34P, 34T (d)(e)(f); Summary Offences Act 1953 (SA) s67(4)(a), 74D; District Court Criminal Rules Rule 9, referred to.
Rogers v The Queen (2011) 109 SASR 307 ; Bannon v The Queen (1995) 185 CLR 1; R v Singh and Bachra (No. 1) [2010] SADC 129 ; Abbott v Ramm BC 9503114 ; R v Bonython (1984) 38 SASR 45; Clark v Ryan (1960) 103 CLR 486 , applied.
R v McKelliff (2004) 87 SASR 476 ; Haydon v Magistrates Court of South Australia [2001] SASC 65; R v Andrews [2010] SASCFC 5 , discussed.
McNeil v Commissioner of Taxation (2003) 202 ALR 35 ; Straker v R (1977) 15 103 ; R v Tang 161 A Crim R 377 , considered.
R v FISCHER & ORS (No 1)
[2012] SADC 186
The co-accused Shane Ronald Fischer (Fischer), Neil Hankins (Hankins) and Paula Maria Wilkey (Wilkey) were charged on information with the offence of trafficking in a controlled drug contrary to s32(3) of the Controlled Substances Act 1984. The particulars of the offence were that Fischer, Hankins and Wilkey, on 23 July 2011 at Salisbury, trafficked in methylamphetamine.
The material facts are that on or about 9:50am on Saturday 23 July 2011, police conducted a search of a property at 23 Fleet Street Salisbury SA 5108, being a rental property occupied by Hankins. Police entered a rear shed on the property and in that shed they located the accused Hankins who was then seated on a couch. The accused Wilkey and the accused Fischer were standing at a pool table which was situate within the shed. The police observed Fischer attempting to secrete a plastic tub underneath a pullover on the pool table.
The plastic tub was seized and was examined. The examination of the contents of the tub revealed that it weighed 7.53 grams and contained 3.63 grams of methylamphetamine.
Swabs of the tub revealed a combined DNA of Hankins (major contributor) and Fischer (minor contributor).
During a search of the shed, the police also identified that there was a press seal bag on the pool table which contained a lumpy crystalline powder weighing 0.16 grams which contained methylamphetamine. The police also located at the same place empty press seal bags, a nail file, a syringe, black tape (the major DNA component on the black tape matched Hankins) and digital scales with traces of methylamphetamine on the scales.
On a corner table, a small bag containing a crystalline powder weighing 0.12 grams was located. That bag was found to contain methylamphetamine.
On the floor of the shed, the police located a small press seal bag that contained a lumpy crystalline substance weighing 0.11 grams which also contained methylamphetamine.
The police then questioned Hankins. On his person, the police located money in the amount of $1315 mainly in fifty dollar notes. Police also located $1800 in fifty dollar notes inside Hankins’ wallet located in his bedroom inside his residence.
During their search, the police seized a phone belonging to Hankins which contained text messages received on the day and the content of those text messages suggested that Hankins was involved in buying and selling methylamphetamine.
Hankins was then asked a series of questions, and the questions and responses were recorded in the handwriting of the interviewing police officer.
The police attempted to interview Fischer but he declined to answer questions.
Hankins was then formally interviewed.
During the interview with Hankins, which was recorded, Hankins informed the police that the money located was pension money and that he was not a user of methylamphetamine. He said that he had not touched any methylamphetamine in the shed and was not aware of any methylamphetamine being in the shed until police arrived.
Wilkey was separately interviewed by the police and her interview was recorded. In her interview, Wilkey said that she attended Hankins’ address on this occasion to sell amphetamine. She told the police that she attended on the day because someone had wanted to purchase a $200 deal (inferentially Fischer). She said that she was familiar with the pricing and packaging of amphetamines and that she had brought with her the scales, money bags, nail file and a tub with black tape wrapped around it which contained between 3-4 grams of methylamphetamine. Wilkey told the police that she had already weighed quantities of the drug using the nail file and scales and placed these amounts into two deal bags before the police arrived. She also said that when the police arrived she was in the process of instructing someone to weigh a further deal and that she regularly sells illicit drug to support her own drug habit.
Hankins issued a Rule 9 Application[1] and sought the following orders:-
[1] Rule 9 District Court Criminal Rules (soon to be Rule 15 District Court Criminal Rules 2012).
1. That there be separate trials in this matter;
2.That the record of interview of the second accused made on 23rd July 2011 be excluded;
3.In the alternative that the following parts of the record of interview of the second accused made on 23rd July 2011 be excluded as follows:
a.Q34 to A34
b.Q46 to A51
c.Q153 to A161
d.Q173 to A173
e.Q197 to A209
f.Q221 to A225
4.That all the evidence obtained as a result of the search of the premises at 23 Fleet Street Salisbury on the morning of 23rd July 2011 be excluded;
5.That the evidence of Alison Jayne Klingberg regarding the conversation with the second accused set out at page 2 of her Statement of Witness dated 2 March 2012 be excluded;
6.That the evidence of Craig Warren Glasson set out [at the] third paragraph at page 2 of his Statement of Witness dated 13 March 2012 be excluded;
7.That the evidence of Mark Sheehy set out in his Statement of Witness dated 19 October 2012 be excluded.
The grounds upon which the Orders were sought were as follows:-
1.There should be separate trials on the basis that that the evidence sought to be adduced from Paula Wilkey’s record of interview that “she attends Hankins house to sell amphetamine” is prejudicial to the second accused and is not admissible against the second accused. (Section 34T Evidence Act)
2.That the material referred to in paragraph 3 of the Orders sought is more prejudicial than probative. If the whole of the record of interview is not excluded, the editing is so extensive that it will inevitably lead the jury to speculate as to what material is excluded from the record of interview
3.That the material discloses past offending and is more prejudicial than probative. Further, the material was a repeat of a conversation that was conducted without compliance with section 74D of the Summary Offences Act 1953
4.The police officers who searched 23 Fleet Street Salisbury on the morning of 23 July 2011 did not have reasonable cause to suspect any of the matters set out in Section 67(4)(a) of the Summary Offences Act 1953
5.The accused was not given his rights pursuant to section 74D of the Summary Offences Act 1953 pursuant to the conversation
6.The witness is not qualified to give this evidence had has failed to disclose the specialised knowledge, training, material or research that enables him to give that opinion evidence.
The other co-accused, Fischer and Wilkey, brought no application and did not seek to be heard on the application of Hankins.
The first ground argued
Ground number 4 was the first ground argued; that all evidence obtained as a result of the search of the premises at 23 Fleet Street Salisbury on the morning of 23rd July 2011 be excluded. The grounds disclose that it is alleged that the police officers who searched the premises on that date did not have reasonable cause to suspect any of the matters set out in sub-paragraph s67 (4)(a) of the Summary Offence Act 1953 (“SOA”).
That subsection reads as follows:
“s67 (4) The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a) the officer may, with such assistants as he or she thinks necessary, enter into,
break open and search any house, building, premises or place where he or she
has reasonable cause to suspect that—
(i) an offence has been recently committed, or is about to be committed;
or
(ii) there are stolen goods; or
(iii) there is anything that may afford evidence as to the commission of an
offence; or
(iv) there is anything that may be intended to be used for the purpose of
committing an offence;
Under the relevant sub-paragraph of that section, a police officer named in a warrant may enter into any house where he/she has reasonable cause to suspect that an offence has recently been committed or is about to be committed, or that there is anything that may afford evidence as to the commission of an offence.
The relevant officer who formed the suspicion for s67 SOA was Detective Brevet Sergeant Alison Jayne Klingberg. In a statement of 11 October 2011 Detective Klingberg informs the Court that at about 8.23am on 23 July 2011, she was performing plain clothes investigation duties at the Drug Investigation Branch and received a briefing from Detective Brevet Sergeant Craig Glasson. Detective Glasson explained to her that he had received information that Neil Hankins of 23 Fleet Street Salisbury was dealing methylamphetamine from his home address.
Relying upon the information that she had received from Detective Glasson, Detective Klingberg formed the suspicion that the accused, Neil Hankins, was dealing methlyamphetamine from his home address. She then proceeded to enter that address.
The first submission of the prosecution was that it did not need to proceed any further than to have satisfied the Court that as a result of the information that she had received from Detective Glasson, Detective Klingberg had formed the reasonable suspicion as required by s67(4) SOA. Alternatively, the prosecution argued that if Ms Klingberg was required to give evidence before the Court, there would be a claim for public interest immunity in relation to how the information was received so that the matter could not go any further in evidence.
The prosecution’s principal position was that it was Detective Klingberg’s state of mind that was relevant. The information she received from Detective Glasson (that is, the fact of having received the information), was the fact that could be disclosed. What is not disclosed is the information received by Detective Klingberg from Detective Glasson. The circumstances of the receipt of the information by Detective Glasson and the communication of the content of that information was made the subject of a claim for public interest immunity by Detective Klingberg and, in turn, the prosecution.
The prosecution relied upon the decision of the Court of Criminal Appeal of South Australia in R v McKelliff.[2] In that case, the Court was asked to consider circumstances where a claim for public interest immunity had been made in answer to a subpoena brought by an accused seeking production of a number of documents held by the Commissioner of Police concerning the circumstances in which a general search warrant had been issued by the Commissioner of Police. Objection was taken by the Commissioner to the production of the documents listed in the subpoena on the grounds of relevance and public interest immunity. For present purposes I am only concerned with the aspect of public interest immunity. That claim was based upon the fact that the documents contained information that would or might tend to identify an informant who had given information to the police as result of which the decision was made to search the appellant’s premises. The trial Judge upheld the objection to the subpoena on the basis that the claim for public interest immunity should be upheld.
[2] (2004) 87 SASR 476.
I pause to mention that in this matter, counsel for Hankins asked me to adjourn the matter to enable him to issue a subpoena for the production of the documents subject to the claim for public interest immunity. I refused that application. The reasons for my refusal are consistent with the matters that I set out hereunder in relation to the claim for public interest immunity.
In McKelliff, the Court upheld the trial Judge’s decision. The Court held[3] that there are two lines of authority as to the way in which the test for public interest immunity should be formulated in the case of police informers. The Court reiterated its approach in Haydon[4] that the correct approach was for the Court to undertake a balancing exercise weighing the asserted public interest against disclosure against the public interest in ensuring that the Court has access to all relevant evidence. The Court also held that the weight of authority is in favour of the view that the claim for immunity in its application to material identifying police informers will weigh heavily in the balancing exercise and ordinarily will only be displaced where disclosure is likely to assist the defendant in proving his or her innocence.
[3] The decision of the Court was given by Justice Perry.
[4] Haydon v Magistrates Court of South Australia [2001] SASC 65.
In this case, no submission was made by Hankins that the disclosure of the information communicated to Detective Klingberg by Detective Glasson would be likely to assist Hankins in proving his innocence.
The Court also held that the balance is unlikely to be struck in favour of the defendant unless there is some concrete ground for a belief which takes the case beyond a mere fishing expedition.
I allowed Hankins, through his counsel, to cross examine Detective Klingberg on the voir dire.
During that cross examination, Detective Klingberg made claims for public interest immunity in relation to the information communicated to Detective Glasson which was then communicated to Detective Klingberg and upon which Detective Klingberg formed her suspicion that an offence had been committed or was about to be committed, and there was evidence as to the commission of an offence at the home of Hankins at 23 Fleet Street Salisbury.
In my view, I am unable to accept the prosecution’s submissions that the fact that the actual information that had been disclosed was sufficient to create a reasonable suspicion to warrant a search. That may well be the case in the event that some information is provided to the Court which can be objectively assessed, about whether it discloses a sufficient ground upon which a reasonable suspicion to warrant a search may be formed. This is not such a case (see Rogers v The Queen (2011) 109 SASR 307).
Finally, the prosecution made a submission[5] that if the prosecution was required to go further, then in accordance with the decision of the Court of Criminal Appeal of South Australia in R v Andrews[6], that information would be disclosed in a closed Affidavit given to me.
[5] T9.31-37
[6] [2010] SASCFC 5.
The position in R v Andrews was that in not dissimilar circumstances a claim for public interest immunity was made and because of the brevity of time in which to consider the matter, the trial Judge considered the claim through evidence that was given in the absence of the accused and counsel for the accused. The issue of public interest immunity was to keep confidential the identity of a police informer.
The Appeal Court decided by a majority that the procedure followed by the Judge in excluding the accused and counsel, whilst this relevant evidence was given, did not give rise to any material unfairness or a risk of miscarriage of justice. Justice White, in dissent, was of the view that the process used by the trial Judge was an irregularity and the appropriate way to proceed was by way of an Affidavit.[7] It is appropriate that in the factual circumstances of this case (there is no brevity of this issue in this case), the prosecution be asked to provide an Affidavit.
[7] Particular reference is made to his Honour’s judgment at paragraphs [130]-[132].
In this instance, I was unable to accept the first submission of the prosecution because the information upon which Detective Klingberg formed her opinion that a search should be made, is information which is not being communicated to the Court. In those circumstances, it is appropriate that I make an Order that, in this instance, an Affidavit be filed by the prosecution disclosing the following information:-
The material that Detective Klingberg used to form a reasonable suspicion including any material that is subject to public interest immunity;
The basis for the claim of public interest immunity and the material to which the immunity is said to attach including an explanation in relation to any claim for maintenance of the complete confidentiality of that material.
I also order that the prosecution provide an open Affidavit to be delivered to me and to defence counsel that explains in sufficient detail the reasons why the prosecution requests the information that is the subject of the claim for public interest immunity should remain confidential. I order that the prosecution provide to me a sealed Affidavit from an appropriate deponent identifying the factual basis for the claim of public interest immunity, the requirement to keep that material confidential and, if an informer (police) is involved, whether that informer requires that his/her identity be kept confidential and the reasons consistent with the approach of the Court of Criminal Appeal in R v McKelliff.
In my view, having regard to the information before the Court, no basis has yet been made out to disclose that the formation of the suspicion by Detective Klingberg was reasonable in all of the circumstances. In that respect, I refer in particular to the judgment of Justice Duggan in R v Rogers[8]. Accepting that suspicion lives in the consciousness of uncertainty,[9] “suspicion” is a less onerous state of mind to establish than belief or knowledge and for a suspicion to be reasonable, it is necessary to import objectivity into that assessment. That aspect of reasonableness attaches to the suspicion and this requires consideration of the circumstances as they are known by the police officers. In those circumstances, it would be necessary for me, in the exercise of my discretion in this matter having regard to the application before me, to know what was in the mind of the police officers. [10]
[8] (2011) 109 SASR 307 and the comments of his Honour at paragraphs [17]-[29] inclusive.
[9] Henderson v Surfield [1927] SASR 192 at 196.
[10] In the course of delivering these ex tempore reasons, I have received two documents from the prosecution. First, an open Affidavit of Deborah Jean McLean sworn 6 November 2012 that I have marked as VDP2. Second, an Affidavit handed to me in a sealed envelope and I was requested by the prosecution to make Orders that it was a confidential Affidavit. I was asked to order that it should be sealed and not be opened except by my Order or by an Order of a Judge of this Court. I have read the sealed Affidavit. I am satisfied of the following: its contents disclose information communicated to Detective Klingberg on 23 July 2011; the content of that information was a sufficient basis upon which Detective Klingberg could form a reasonable suspicion for the purposes of s67(4) SOA; that the contents revealed sufficient reason for me to be satisfied that it is and must remain a confidential Affidavit; that it is appropriate that I make an Order that the Affidavit remains sealed and that it not be opened except upon an Order made by me or by a Judge of this Court.
Before leaving this point, there are a number of further matters that arose in the cross examination of Detective Klingberg that I need to mention.
In cross examination, Detective Klingberg identified that she understood that Detective Glasson had read the PIMS[11] record in relation to Hankins. Detective Klingberg believed that Detective Glasson had already done that prior to the briefing on 23rd July 2011 and she gave evidence that Detective Glasson did not inform her of the content of that document.
[11] Police Incident Management System.
Mr Redford, counsel for Hankins, called for production of the PIMS document. His argument was that it was a document that was looked at by Detective Glasson and that therefore it was a document that should be seen by Mr Hankins. The prosecution objected to the production of the document. I refused the request for production because I formed the view that Detective Klingberg was relevantly operating upon information that she had received during the course of the meeting on 23rd July 2011. The view that I formed was that there was a synapse of logic between the request in respect of Detective Glasson and the cross examination of Detective Klingberg because it was not proved that Detective Glasson had informed Detective Klingberg of the content of that document or that the content of the PIMS operated on the mind of Detective Klingberg. To the contrary, the only information possessed by Detective Klingberg was that Detective Glasson had read the PIMS relating to Hankins.
Supplementary to my rejection of that application, Mr Redford then informed the Court that he intended to make an application in Court to issue a subpoena for the same documents and have it returnable in sufficient time for him to complete cross examination of Detective Klingberg. I refused that application for the same reasons.
Second application, application for separate trials
In paragraph one of the Orders sought, the accused Hankins sought an order for separate trials in the matter. The grounds which Hankins outlined were that the evidence sought to be adduced from the co-accused Paula Wilkey from her record of interview that “she attends Hankins’ house to sell amphetamine” is prejudicial to the second accused and is not admissible against the second accused (s34T Evidence Act).
Notwithstanding the content of the Rule 9 application and its grounds, I was informed[12] that “where the prosecution and Hankins seem to disagree” is that the issue of an application for separate trials must also be looked at in the context of a discreditable conduct application that will in turn apply to and inform the application for a separate trial.
[12] T37.32 et seq.
By a notice of intention by a defendant to adduce evidence of discreditable conduct (Evidence Act 1929 s34P(4)) Hankins gave notice that at the trial of this information, he would seek to adduce evidence of discreditable conduct of the co-accused Fischer and Wilkey.
The particulars were:-
[a.] In relation to Fischer, pages 3 and 6 of the record of interview
[b.] In relation to Wilkey, pages 1, 7, 8, 10, 11, 12 and 13 of her record of interview.
Ultimately in argument, Hankins abandoned paragraph [a] as referred to above. The focus of the application was in respect of the statements by Wilkey as referred to in [b] of sub-paragraph 1 of the notice given by Hankins.
In the notice of intention filed by Hankins, the witnesses identified are all the relevant investigating police officers and the use identified is that Neil Hankins was not trafficking in methylamphetamine and that Fischer and Wilkey were trafficking in methylamphetamine.
The position of the prosecution was that the notice under s34P (4) of the Evidence Act issued by Hankins was in error. The prosecution points out that what Wilkey actually said in her record of interview was that she attended Hankins’ house on this occasion to sell drugs (my emphasis).
S34P of the Evidence Act reads as follows:-
“s34P
(1) In the trial of the charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence) –
(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)is inadmissible for that purpose (impermissible use); and
(c)subject to subsection 2, is inadmissible for any other purpose.
(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if –
(a)The Judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)In the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue – the evidence has strong probative value having regard to the particular issue or issues arising at trial
(c)In the determination of the question in subsection (2)(a) the Judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.”
The central feature of s34P (1) of the Evidence Act is that the discreditable conduct must be conduct other than conduct constituting the offence.
An admission by Wilkey that she was attending the house of Hankins’ on this occasion to sell drugs is not conduct other than conduct constituting the offence, but is in fact conduct which constitutes the offence committed by Wilkey. In my opinion, (in light of the abandonment by Hankins of sub-paragraph [a] of the notice of intention) under s34P(4) of the Evidence Act, the conduct of Wilkey referred to and in respect of which the notice was given, is in fact conduct constituting the offence by Wilkey. That being so, the notice given by Hankins is in error and needs no further consideration.
The second basis is that, having regard to common law principles that operate in respect of evidence of a hearsay nature against a co-accused, Hankins is unable to adduce the evidence which he would seek to adduce against Wilkey and Fischer, unless that evidence falls within the permissible exceptions (which it does not in this circumstance). It is to be recorded that the co-accused, Fischer and Wilkey, did not issue a s34P Evidence Act Notice of Discreditable Conduct against Hankins. In my view this is quite important. During argument I asked counsel for Fischer and Wilkey whether they had any application to bring or were proposing to issue any notice or application. I was told no in respect of each. I have proceeded to consider this matter in that background.
The reasons in respect of this second basis are well settled. In Bannon v The Queen[13] the High Court reaffirmed that, generally, a co-accused may not give hearsay evidence against another co-accused and that evidence is not evidence in the trial of the other accused. The High Court held at page 22 of Bannon as follows:-
“Admissibility of the evidence
Earlier in this judgment mention is made of a passage from the trial Judge’s direction to the jury in which he said: “what is said out of Court and not in the presence of the co-accused is not evidence in the trial of the other accused.” This is undoubtedly correct as a general proposition. Out of Court statements are not evidence of the truth of what is said unless the statement falls within an exception against hearsay. One such exception admits evidence of a confessional nature against the maker. Another renders admissible a statement made by a third party, since deceased, which is against his or her pecuniary or proprietary interests.
As the law stands in this country, there is no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co-accused or by a third party.[14] No Australian Court at least in any reported decision appears to have taken the approach adopted by the Court of Appeal in England in R v Beckford[15] that if the consequences of inadmissibility are that the jury does not hear an alternative version of the events giving rise to the charge, the conviction of an accused may be unsafe and unsatisfactory and accordingly set aside. It should be noted that in Beckford, the co-accused did not give evidence and the prosecution was unable to give evidence of the confession because the trial Judge held that it was not given voluntarily.
[13] (1995) 185 CLR 1 at page 22.
[14] See Re in Re Van Beelan 919740 9 SASR 163.
[15] [1991] CLR 833.
Hankins did not submit that the hearsay evidence he wished to lead fell within any of the hearsay exceptions. In my opinion, absent an effective notice under s34P (4), Wilkey is not entitled to give hearsay evidence against Hankins nor Hankins against Wilkey. I will address s18 of the Evidence Act later in these reasons.
On the issue of prejudice, the application of Hankins ultimately evolved to a consideration of a number of statements made by Wilkey in her record of interview namely that “after work she came here (the address of Hankins’) to, with my, with, to sell some drugs”. That was reaffirmed at question 10 where the police officer asked Wilkey to confirm: “…that you came here to sell drugs is that what you said?” (my emphasis). The answer was “yep”.
Wilkey volunteered in other parts of the interview that she was doing a $200 deal (inferentially with Fischer) when the police walked in. She informed the police that she is a drug user and that she does deal in drugs in order to pay for her habit. She identified that she was dealing with Fischer, that there were drugs on the table (on the pool table in a plastic container), that the other person (inferentially Fischer) was transferring a portion of amphetamine from the tub to a money bag using a nail file because she could not do that herself because she was too shaky as she had been working all night.
She confirmed that the reason she was at the house was to pick up her daughter as well. The words “…as well” were identified by Mr Redford, for Hankins, as indicating prejudice that may be suffered by a co-accused by any jury hearing such evidence in a joint trial because it leads inevitably to a conclusion that Hankins’ home is being used as a “drug house” for the procuring and sale of drugs.
The application of Hankins ultimately became that, by virtue of the prejudicial nature of that evidence, there was sufficient justification for an order for the separation of trials.
There are two answers to the submission of Hankins, both of which gainsay the propositions that are put on his behalf. The first is that on any ordinary reading of the record of interview of Wilkey, she was attempting to lay blame entirely at her own feet in relation to the drug dealing. She identified that it was only after work that she came (here) to sell some drugs. She did not say that she was using the premises with the permission of Hankins to sell the drugs, all she said was that she had come there to sell drugs. She identified those drugs as amphetamines. She describes the process of the sale (inferentially to Fischer). She does not in any way implicate Hankins in that process. She deliberately excludes Hankins. It is a matter entirely for the jury whether they believe the version put forward by Wilkey but, in relation to the matters to be dealt with by the Court in this application, that is the nature of the evidence. That evidence is not sufficient, of itself, to attract an Order of the Court for a separate trial.[16]
[16] That said, there is an air of unreality about the versions of events put forward by Wilkey. It may be postulated that she is attempting to protect another person. That is not a matter for decision here.
The second reason is that the relevant common law principles concerning separation of trials do not support the proposition put by the accused. Those principles were summarised by Judge Millsteed in his decision of R v Singh and Bachra (No. 1)[17] commencing at paragraphs 34 and ending at paragraph 39 as follows:
[17] [2010] SADC 129.
[34]There are three fundamental principles that govern an application for separate trials. The first is that when accused persons are charged with committing a crime jointly, prima facie there should be a joint trial: Webb & Hay v R (1994) 181 CLR 41 per Toohey J at 89; R v Harbach (1973) 6 SASR 427 at 432; R v Collie, Kranz & Lovegrove (1991) 56 SASR 302. As King CJ observed in R v Glover (1987) 46 SASR 310 at 312:
[W]here two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together.
[35]The second principle is that the prima facie rule is not displaced merely because evidence will be placed before the jury, which though admissible against one accused is inadmissible against, and prejudicial to, another accused: R v Harbach (1973) 6 SASR 427 at 432; R v Gibb & McKenzie (1983) 2 VR 155 at 163. Indeed, such evidence, including statements made by one accused person that serve to incriminate another accused, are a common feature of a joint trial: R v Collie, Kranz & Lovegrove (1991) 56 SASR 302 per King CJ at 308, 319; Webb & Hay v R (1994) 181 CLR 41 per Toohey J at 89.
[36]In a joint trial it is the duty of the trial judge to identify the evidence which is inadmissible against any of the accused and to direct them that they must not use such evidence against the accused in question. The law assumes that a jury is usually capable of understanding and is willing to apply heed such warnings (R v Harbach (1973) 6 SASR 427 at 432; referred to with approval in Webb & Hay v R (1994) 181 CLR 41 per Toohey J at 41; R v Collie, Kranz & Lovegrove (1991) 56 SASR 302 per King CJ at 308). However, the nature of the evidence may be such that no warning by the trial judge would be effective. In such a case fairness to the accused requires that he or she receive a separate trial
[37]The third principle is that a joint trial may be ordered though one or each of the accused is trying to cast blame for the charged crime on the other. Indeed, such circumstances are a cogent reason for holding a joint trial. In such cases the interests of justice demand that the jury have the whole picture presented to them and not half of it, and should see the person on whom blame is sought to be cast as well as the person seeking to cast blame: R v Harbach (1973) 6 SASR 427 at 432; cited with approval in R v Collie Kranz & Lovegrove (1991) 56 SASR 302, King CJ at 308; R v Demirok [1976] VR 244 at 254, cited with approval in Webb & Hay v R (1994) 181 CLR 41, Toohey J at 89.
[38]The public policy considerations that normally require the holding of a joint trial were discussed by the Full Court of Victoria in R v Demirok [1976] VR 244 at 254
The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated trial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.
[39]The principles expressed in Demirok have been widely endorsed. They were approved by the Court of Criminal Appeal (SA) in R v Collie Kranz & Lovegrove and later by Toohey J in Webb & Hay v R (1994) 181 CLR 41.
In the application of the relevant principles, there is a prima facie presumption that there should be a joint trial. Second, that prima facie rule is not displaced merely because the evidence that will be placed before the jury (though admissible against Wilkey) is inadmissible against and prejudicial to Hankins. Thirdly, it is my duty to identify any evidence which is inadmissible against Hankins, being the evidence given by Wilkey in this instance, and to give a direction to the jury that they will not use any such evidence against Hankins. In my opinion, a jury is well capable of understanding and would be willing to heed any warning that I give.
Fourth, in my view, the nature of the evidence is not such that any warning given by me would not be effective. In my view, this is not a case where there would be such a level of unfairness to the accused that he should have a separate trial.
In this case, it does not appear to be the position that one or each of the accused is trying to cast blame for the charged crime on the other. Each appears to be treating the question of blame separately and there is no evidence before me that each or any of them are trying to cast blame to the charged crime on the others.
That, of course, may change but I have come to my decision in the light of the materials that are currently before me. No submissions were put on behalf of the co-accused Fischer and Wilkey by their counsel. No s34P Evidence Act notice of discreditable conduct has been delivered by them and so none is anticipated (s34P(4) and (5) of the Evidence Act 1929). If such a notice was planned to be issued by them at the time of this argument and of my consideration of the issue for decision, it would be inappropriate if the Court was not informed of that position whilst it was dealing with the s34P notice issued by Hankins (which was dealt with in the context of the s34T point on severance and the application under common law principles for severance of the charges against the co-accused).
In these circumstances, it is my view that any differences or conflict in the versions of events given by any of the accused in this matter should be resolved by the same jury at the same trial. Reaching finality of these matters as expeditiously as possible is a proper consideration in the administration of justice in this State.
S34T Evidence Act 1929
In his submissions, Mr Redford counsel for Hankins also made the submission that s34T of the Evidence Act has application in these particular circumstances and that it ousts the common law. Mr Redford did not develop that submission in any detail and his only submission on the point was that in order to satisfy s34T of the Evidence Act, the common law test is reduced presumably in respect of those persons who would rely upon that provision.
It is first to be noted that s34O of the Evidence Act 1929 reads as follows:-
“s34O – Application of Division
(1) This division applies to the trial of a charge of an offence and prevails over any relevant common law of admissibility of evidence to the extent of any inconsistency.
(2) This division does not apply to –
(a)Evidence adduced pursuant to s18; or
(b)Evidence of the character, reputation, conduct or disposition of a person as a fact in issue.
As I read the content of s34O of the Evidence Act, the ouster of the common law as described therein is specifically limited to rules in relation to the admissibility of evidence. There is no similar or identical provision in relation to concepts of severance which are dealt with in s34T of the Evidence Act.
S34T of the Evidence Act reads as follows:-
“s34T – severance
Where –
(a) Two or more defendants are charged in the same information; and
(b) A party proposes to adduce discreditable conduct evidence; and
(c) A defendant (the applicant) applies prior to or during a trial for a separate trial or for a charge to be severed from the information,
The Court, when considering the application, must give strong weight to a real possibility that the applicant may be prejudice by –
(d) Evidence proposed to be adduced by the prosecutor against another defendant which is not admissible against the applicant; or
(e) Evidence proposed to be adduced by another defendant which is not admissible against the applicant; or
(f) The applicant’s inability to adduce with respect to another defendant relevant evidence that would be admissible but for the operation of s34P
The submission of Mr Redford for Hankins in this respect was that if I was against him in relation to his s34P discreditable conduct argument and the severance argument based upon the evidence of Wilkey, then s34T would not apply and under the common law test, his client would not be successful in an application for separate trials. Presumably this was because there were questions arising about issues of admissibility of evidence and, as a consequence, there was a real possibility of prejudice. No specific submission to that effect was put but in my view, it is appropriate for me to proceed on that basis.
In this instance, the three accused are charged on the same information. Also a party, namely the prosecution, has proposed to adduce discreditable conduct evidence. The accused Hankins had proposed to adduce discreditable conduct evidence in respect of his co-accused but, in my judgment for the reasons as set out above, that notice is ineffective. Notwithstanding, the prosecution does propose to adduce discreditable conduct evidence and the accused applicant has prior to the trial, sought a separate trial and in the event that I am wrong in my view I should say something briefly about s34T of the Evidence Act and express my concluded views on the matter.
The relevant question for consideration here turns upon the following expressions: “must give strong weight”; “to a real possibility”; “that the applicant may be prejudiced by” ((d) (e) (f)).
(d) evidence proposed to be adduced by the prosecutor against another defendant which is not admissible against the applicant; or
(e) evidence proposed to be adduced by another defendant which is not admissible against the applicant; or
(f)the applicant's inability to adduce with respect to another defendant relevant evidence that would be admissible but for the operation of section 34P.
I have set out the relevant common law tests in relation to separation of trials as they were helpfully summarised by Judge Millsteed in R v Singh and Bachra (no.1). It is apparent that s34T does not automatically displace the prima facie position that there should be a joint trial in respect of co-accused. The same general principle of reasoning applies namely, that it would be unsatisfactory for jurors to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. The section does not purport to displace the prima facia rule that merely because evidence will be placed before the jury which though admissible against one accused is inadmissible against and prejudicial to another accused means that, a fortiori, a separate trial should be ordered.
The question for consideration here is whether or not prejudice will be suffered by one accused (here the applicant) because of the content of evidence proposed to be adduced by the prosecutor against another accused which is not admissible against this applicant, or by evidence by one accused which is not admissible against this applicant or, in respect of what may be described as an impermissible use of evidence under s34P of the Evidence Act.
In the operation of s34T, I am obliged to give strong weight to a real possibility that the applicant may be prejudiced by such matters.
In giving consideration to the question of the real possibility of prejudice, it is apparent that it is necessary for me to take into account the effect of any warning that I may give to the jury about such evidence, the effectiveness of that warning and whether fairness to the accused requires that there be a separate trial. All of those matters will be weighed in the balance as to whether there is a real possibility of such prejudice.
That prejudice may occur as a result of a single matter or an accumulation of matters or an accumulation of different issues into one or several matters that give rise to the necessary level of unfairness for an accused.
S34T Evidence Act anticipates that a party, including the prosecution, may propose to adduce discreditable conduct evidence. One of the considerations relevant to a decision on prejudice would be whether the applicant is unable to adduce evidence of discreditable conduct with respect to another defendant, because that evidence, though otherwise of relevance, is inadmissible because of the operation of s34P.
On the materials before me none of these relevant considerations apply and they do not require any further attention as a matter of fact.
In this instance, the applicant Hankins has not identified any inability to adduce relevant evidence with respect to another defendant in the proceedings that would be admissible but for the operation of s34P. Similarly, there is no suggestion that evidence is proposed to be adduced by one defendant which is not admissible against the applicant. Conversely, evidence proposed to be adduced by the prosecutor against another defendant is not admissible against the accused Hankins.
I have already weighed that matter in the balance and in my opinion there is no real possibility that the applicant will be prejudiced by the evidence proposed to be adduced by the prosecutor against another co-accused (which is not admissible against the applicant).
Therefore, it is not necessary to make a final decision in relation to the meaning of s34T but in this instance, it is necessary to state that one major consideration in an application under s34T is that a party, in this instance the prosecution, does propose to adduce discreditable conduct evidence (against Hankins) and that the Court must weigh in the balance the proposal to adduce that discreditable conduct evidence in the trial.
It is not necessary to make a final decision in relation to those matters because of the concession, properly made by Mr Redford, that if my decision is not to exclude the evidence of Ms Wilkey in her transcript of interview then the common law test applies. Thus it is not necessary to give further consideration to that matter.
If I was required to make a decision on Hankin’s s34T separate trial application, I would have refused that application because of the absence of any possibility that the applicant may be prejudiced by any of the matters set out in s34T(d)(e) and (f) of the Evidence Act. I have described above my reasons for reaching that view.
The next argument put by Mr Redford concern s18 of the Evidence Act. That section reads as follows:
18—Accused persons competent to give evidence
(1)Every person charged with an offence shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: Provided as follows:
(a)a person so charged shall not be called as a witness in pursuance of this Act except upon his own application;
(b)the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution;
(c)a person charged and being a witness in pursuance of this Act may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged;
(d)a person charged and called as a witness in pursuance of this Act shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless—
(i)the evidence to be elicited by the question is admissible as tending to show that he is guilty or not guilty of the offence with which he is charged; or
(ii)he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character or has given evidence of his good character; or
(iii)he forfeits the protection of this paragraph by virtue of subsection (2); or
(iv)he has given evidence against any other person charged with the same offence;
(e)every person called as a witness in pursuance of this Act shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence;
(f)nothing herein contained shall affect the provisions of section 110 of the Justices Act 1921.
(2)A defendant forfeits the protection of subsection (1)(d) if—
(a)the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or a witness for the prosecution; and
(b)the imputations are not such as would necessarily arise from a proper presentation of the defence.
(3)Notwithstanding the provisions of subsection (2), a defendant does not forfeit the protection of subsection (1)(d) by reason of imputations on the character of the prosecutor or a witness for the prosecution arising from evidence of the conduct of the prosecutor or witness—
(a)in the events or circumstances on which the charge is based; or
(b)in the investigation of those events or circumstances, or in assembling evidence in support of the charge; or
(c)in the course of the trial, or proceedings preliminary to the trial.
Particular reference was made by Mr Redford to s18 (1)(d). The argument put was that if the accused Hankins gives evidence that whatever drugs were found were not his and, it follows, those drugs must belong to somebody else then he is, ipso facto, pointing to a co-accused and putting his own credit and character in issue as well as the credit and character of his co-accused and, accordingly, those matters can be the subject of cross examination. I am unable to accept this submission.
The commencement of s18 of the Evidence Act 1929 preceded the insertion of s34P-T inclusive of that Act. It exists in other complimentary state evidence statutes in generally the same form. It has always operated in the context of joint trials and its proper operation and effect is generally dependent upon the control to be exercised by a trial Judge at the trial and particularly, in relation to proper directions to a jury. It has always been possible for one co-accused to give evidence against another co-accused. It is to be assumed that Parliament took into account the existence and operation of s18 of the Evidence Act when considering the amendments to s34 of the Evidence Act. That much is self evident by the terms of s34O.
I am unable to accept the submissions of the accused Hankins and my reasoning is that the operation of s18 is specifically preserved under s 34O(2). In s18 Evidence Act, Parliament has specifically provided the statutory exceptions that are to apply to a defendant where particular evidence of the nature described therein is given by an accused. Certain consequences follow and that position is not affected by the inclusion of s34O-s34T inclusive of the Evidence Act 1929. In that context, it is of no significance that Hankins may seek to argue that the drugs were not his.
In the circumstances as I have found them, it is not necessary for me to have reference to the second reading speech of the amendments introducing s34T of the Act. [18] In coming to my conclusion in relation to this application, in my view, the question of whether s34T of the Evidence Act ousts the common law is unnecessary to be decided. I am unable to accept that submission but that is a matter for another day.
[18] In the second reading speech of the Honourable Attorney General in the House of Assembly on Wednesday 6 April 2011 (page 3287) the Honourable Attorney General said the following: “secondly, the Bill recognises, in s34T, the major practical problems that can arise from the defence seeking to use evidence of discreditable conduct against the co-defendant at a joint trial. Such a joint trial may become too entangled and a jury, even if given detailed directions, may be unable to prevent undue prejudice to the co-defendant. In such circumstances, the Bill, confirming and reinforcing existing practice in this area, provides this to be a strong factor to be taken into account in the trial Judge’s existing common law discretion in deciding whether to order separate trials”.
The exclusion of evidence
I refer to paragraph 3 of the rule 9 notice of Hankins. In argument, Mr Redford for Hankins abandoned paragraph 2 which sought the exclusion of the record of interview of Hankins.
There are six separate aspects of evidence that I refer to in sub-paragraphs (a)-(f) inclusive.
The prosecution conceded the content of (d), (e) and (f) subject to the maintenance of the questions and answers in (c) (namely question 153 to answer 161).
It is therefore necessary to consider only sub-paragraphs (a), (b) and (c) of the application. Having heard the submissions of the parties, I am not satisfied that the question and answer number 34 should be excluded. I am satisfied that question 46 to answer 51 should also remain within the transcript. I will develop reasons for that later. I am not satisfied that the whole of the content of question 153 to answer 161 should remain within the transcript. In my view, the following matters must be excluded: answer 154, question 155, question 156, answer 156, question 157, question 158, answer 158, question 160, answer 160, question 161, answer 161.
In my view, the excluded material is substantially more prejudicial than probative.
In relation to question 46 to answer 51, in my opinion, when regard is had to the content of s67 (4) and s75D (1) SOA, it was necessary in the circumstances for those questions to be put again and the answers to be confirmed on tape. I accept the submissions of the prosecution that consistent with the decision of Justice Debelle in Abbott v Ramm[19] the process of attendance, investigation and formation of the suspicion of an indictable offence is at least a two step process and that, in the circumstances, Detective Klingberg was required to investigate the factual circumstances at the relevant address and then form the suspicion about an indictable offence having been committed. In those circumstances, it was not only appropriate but it was also necessary under those relevant provisions of the SOA, for Detective Klingberg to have put the content of questions 46-51 to the accused. I am unable to accept this ground of the application by the accused Hankins.
[19] BC 9503114.
Expert Evidence of Detective Brevet Sergeant Sheehy
I turn then to the application in paragraph 7 of the Rule 9 notice. The objection raised to Detective Sheehy giving expert evidence relates to the content of his statement of 19 October 2012. In that statement, Detective Sheehy identifies that he has been asked to provide comment in relation to a number of SMS messages. He makes specific reference to an SMS message on 27 July 2011 at 10:34am and the content of that message described thus: “a reference is made in this message using the words “50 or 100” and then the SMS states to: “make 2 50 just in case”. Detective Sheehy then opines about the meaning of those words.
The challenge by Mr Redford[20] is that the whole of the statement is merely an interpretation of a set of words on an SMS document and that Detective Sheehy is no better qualified to assess those words than a member of the jury.
[20] T78.10
The response of the prosecution was that the only use to be made of the SMS evidence is that it is consistent with being a drug transaction because the prosecution cannot say definitely it is a drug transaction. It is in that evidentiary context that the prosecution seeks to lead the expert evidence of Detective Sheehy.
I am unable to accept the submissions of the accused Hankins.
Detective Sheehy has been with the police force since 1997, and has been attached to the Drug Investigation Branch as a Detective since 2009. He has completed the clandestine laboratory course and regularly updates his drug-related knowledge via publications, discussions with colleagues and personal involvement in investigations. I am satisfied that Detective Sheehy possesses a sufficient level of knowledge and experience in the illicit drug trade in South Australia and is otherwise properly qualified so as to be able to offer his opinions to the Court as an expert.[21]
[21] R v Bonython (1984) 38 SASR 45, 47.
The admissible use of expert evidence is confined to subjects which are not, or are not wholly, within the knowledge and experience of ordinary persons.[22] I am satisfied that the topic discussed in Detective Sheehy’s statement dated 19 October 2012, namely the common pricing of illicit drugs, fits within that category. The Jury may well be inexperienced with regard to such topics, and they may need assistance in order to become “capable of forming a correct judgement upon it”.[23]
[22] R v Bonython (1984) 38 SASR 45, 46 per King CJ.
[23] Clark v Ryan (1960) 103 CLR 486, 491.
The expert evidence directly impacts on the probability of a fact in issue, namely whether the commodity being traded via text message is a controlled drug.[24]
[24] McNeil v Cmr of Taxation (2003) 202 ALR 35.
Mere speculation or conjecture does not qualify as expert evidence.[25] However, the guidance provided by Detective Sheehy in his statement is based upon his field of knowledge and practical experience, is within his area of expertise and is not based on a subjective belief or any unsupported speculation.[26]
[25] Straker v R (1977) 15 103.
[26] R v Tang (2006) 161 A Crim R 377.
I refuse to exclude the evidence provided in Detective Sheehy’s statement. However, I will give a direction to the Jury that they are entitled to reject the evidence of any witness, regardless of whether that witness is an expert. Ultimately, the meaning of the text messages will still be a matter for the Jury.
Formal Orders
I make the following formal Orders.
1. I reject the second accused’s application for separate trials
2.I reject the accused’s application in relation to the record of interview of the second accused made on 23 July 2011 as follows:-
a) …
b) …
c)I accept the second accused’s application in relation to the content of questions 153 to answer 161 upon the terms as I have set them out above
d)(e) (f) The parties have agreed that question and answer 173, question 197 to answer 209 and question 221 to answer 225 should be excluded (on the basis of my findings in respect of (c)
3.I reject paragraph 4 of the application
4.I reject paragraph 5 of the application
5.I reject paragraph 6 of the application
6.I reject paragraph 7 of the application.
If requested I would make a further Order striking out the notice of intention by Hankins to adduce evidence of discreditable conduct under the Evidence Act 1926 s34P (4) dated 5 November 2012. In paragraph 1 of the notice there were two bases set out in sub-paragraphs [a] and [b]. In argument, the accused abandoned the argument under sub-paragraph [a]. The accused’s argument in relation to sub-paragraph [b] was that I should be satisfied that on the overall reading of the record of interview, it was more prejudicial than probative to the accused Hankins and should be excluded. I have already addressed that matter in these reasons and I have rejected that application.
Notwithstanding my findings, the true difficulty with the notice is that it does not comply with s34P of the Evidence Act because it does not point to conduct other than conduct constituting the offence as the discreditable conduct. The conduct pointed to by the accused in relation to the statements made by Paula Wilkey relate, in my opinion, to the conduct of Paula Wilkey concerning the offence with which she is charged. It is my opinion that on a proper reading of the whole of that evidence, Ms Wilkey has gone to considerable efforts to attempt to protect other persons involved at the relevant time by suggesting that she is the person who is involved in the drug transactions to the exclusion of the accused Hankins. As I have said in argument, it is a matter entirely for the jury as to whether they accept Wilkey’s version of events[27] but that is the position that is disclosed on the face of the interview.
[27] I have serious misgivings about the genuineness of the version given by Wilkey but in the absence of an s34P notice from her or any indication of a change of position I proceed on the basis that this is the version to be put to the jury in this trial.
That being the case, the conduct identified is not conduct other than conduct constituting the offence allegedly committed by Paula Wilkey. It therefore does not form part of the conduct that may be relied upon in relation to an s34P (4) notice.
14
1