R v Hardstaff

Case [2016] QSC 299

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hardstaff [2016] QSC 299

PARTIES:

THE QUEEN
v
KELLY-MAREE JOYCE DENISE HARDSTAFF

(applicant)

FILE NO/S:

Indictment No 1053 of 2016

DIVISION:

Trial Division

PROCEEDING:

590AA pre-trial hearing

ORIGINATING COURT:

  Supreme Court at Brisbane

DELIVERED ON:

15 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2016, 8 November 2016

JUDGE:

Ann Lyons J

ORDER:

1.   The application to exclude the telephone communications on phones utilising the numbers 0411 192 786, 0481 780 723, 0414 729 277 and 0423 246 916 (the Lawler phones) is refused.

2.   The telephone communications on the phone utilising the number 0413 906 022 (Webb’s phone), which relate to communications with mobile phone numbers 0487 564 448 and 0407 121 214, sent on 30 April 2016 and 1 May 2016, are excluded.

3.   The application to exclude the telephone communications on Webb’s phone which relate to communications with mobile phone number 0431 624 331 is refused.

4.    Any references to variation of bail are to be removed from the text messages sent from the phone utilising 0431 624 331 to Webb’s phone.

5.   The application to exclude the telephone communications on phones utilising the number 0411 990 163, which relate to communications with mobile phone numbers 0421 953 031, 0421 481 587 and 0481 252 467 (phones that relate to the evidence of Ten-Bohmer) is refused.

6.   The words “in jail” are to be removed from the text message sent from 0481 252 467 to 0411 990 163.

7.   The application to sever Counts 1 and 2 from Counts 3-5 on the Indictment is refused.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – HEARSAY – PARTICULAR MATTERS – TELEPHONE CALLS – where the applicant applies under s 590AA(2)(e) of the Criminal Code to exclude telephone communications on the basis they contain third party communications – where the respondent submits there is reasonable evidence of pre-concert between the applicant and the co-conspirators of the type of offence alleged – whether the evidence is admissible against the applicant

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – where the applicant applies under s 590AA(2)(e) of the Criminal Code to exclude telephone communications on the basis of their prejudicial content – where the respondent submits that the prejudice can be overcome by the removal of certain words – whether the evidence is admissible

CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE – ADMISSIBILITY AND RELEVANCY – PROPENSITY EVIDENCE – EVIDENCE OF UNCHARGED ACTS – where the applicant is charged with various offences under the Drugs Misuse Act 1986 (Qld) – where there were two separate periods of offending – whether evidence of one period of offending is admissible as evidence of the other

CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE – JOINDER OF PERSONS OR COUNTS – where the applicant is charged with various offences under the Drugs Misuse Act 1986 (Qld) – where there were two separate periods of offending – where the…

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Details
AGLC
R v Hardstaff [2016] QSC 299
Case
[2016] QSC 299
Decision Date

CaseChat Overview and Summary

The case of R v Hardstaff involved the applicant, Hardstaff, who was charged with various offences under the Drugs Misuse Act 1986 (Qld). The central issue in the case was the admissibility of certain intercepted telephone communications, particularly those involving third-party communications and their potential prejudicial content. The applicant sought to exclude these communications under specific sections of the Criminal Code, arguing that they were inadmissible due to hearsay, lack of direct evidence linking him to the phones, and potential prejudice. The respondent argued that there was sufficient evidence of pre-concert and corroboration to admit the evidence against Hardstaff.

The court examined the legal principles surrounding the admissibility of third-party communications in conspiracy cases, the standard of proof required to establish pre-concert, and the discretion of the trial judge in determining whether evidence should be excluded due to its prejudicial nature. The court considered whether the Crown could establish the necessary connection between Hardstaff and the intercepted communications to overcome the hearsay objection. It also assessed whether the prejudicial content of certain communications could be mitigated by redactions.

The court ruled that the intercepted telephone communications were admissible against Hardstaff. It found that there was reasonable evidence of pre-concert and corroboration that connected Hardstaff to the conspiracy. The court rejected Hardstaff's argument that the evidence was inadmissible because the phones were not registered to him or seized from him, holding that the Crown could establish his connection to the phones through other means. The court also determined that any prejudicial content could be addressed through redactions, rather than excluding the evidence entirely.

The court's final orders included the refusal to exclude certain intercepted communications, the exclusion of specific communications due to their prejudicial nature, and the redaction of certain terms from the text messages. Additionally, the court refused to sever the counts on the indictment, finding that they were properly joined.

Orders

Orders of the court

1. The application to exclude the telephone communications on phones utilising the numbers 0411 192 786, 0481 780 723, 0414 729 277 and 0423 246 916 (the Lawler phones) is refused.

2. The telephone communications on the phone utilising the number 0413 906 022 (Webb’s phone), which relate to communications with mobile phone numbers 0487 564 448 and 0407 121 214, sent on 30 April 2016 and 1 May 2016, are excluded.

3. The application to exclude the telephone communications on Webb’s phone which relate to communications with mobile phone number 0431 624 331 is refused.

4. Any references to variation of bail are to be removed from the text messages sent from the phone utilising 0431 624 331 to Webb’s phone.

5. The application to exclude the telephone communications on phones utilising the number 0411 990 163, which relate to communications with mobile phone numbers 0421 953 031, 0421 481 587 and 0481 252 467 (phones that relate to the evidence of Ten-Bohmer) is refused.

6. The words “in jail” are to be removed from the text message sent from 0481 252 467 to 0411 990 163.

7. The application to sever Counts 1 and 2 from Counts 3-5 on the Indictment is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Counsel for the applicant contends that in short, the Crown must be able to point to “reasonable evidence” of pre-concert and corroboration. The third party telephone intercepts themselves cannot be used as the evidence of the conspiracy or to establish the pre-concert:[2] “[9] The implied authority on the part of one conspirator to act or speak on behalf of another will only arise if the latter is part of the combination. Evidence of the acts or declarations of the former may, however, be led to prove that very fact. That is where the dilemma lies in cases of conspiracy because, to assume the participation of the latter in order to admit the evidence on the basis of implied authority is to assume the very fact which is sought to be proved by that evidence. If there were no prerequisite to the admission of such evidence "hearsay would lift itself by its own bootstraps to the level of competent evidence": Glasser v. United States [1942] USSC 36; (1942) 315 US 60, at p 75. In that case, Glasser, who was charged with conspiracy to defraud the United States, had red hair. Evidence was led of a declaration by an alleged co-conspirator in the absence of Glasser that "he would have to see 'Red,' or send the money over to the 'red-head,' etc., in connection with 'fixing' cases" (at p.73). In accordance with accepted principle, such evidence was held to be admissible "only if there is proof aliunde that he is connected with the conspiracy" (at p.74). That, of course, still leaves two questions. The first is the degree or standard of proof of the evidence from another source which is required. The second is whether it is for the trial judge or the jury to decide whether proof of the required standard exists.”[2] Ahern v R [1988] HCA 39.Exclusion of evidence from the “Lawler Phones” The applicant argues that it was Tiarna Lawler who utilised the three numbers 0411 192 786; 0481 780 723; 0414 729 277 and notes that none of these phones are registered to the applicant or were seized from the applicant. It is argued therefore that the Crown cannot establish by direct evidence that the applicant was ever in actual possession of the phones, or that the applicant actually sent the messages. In a recorded interview with police at the watch house Lawler in fact admitted to owning the phones. It is also argued that the evidence of Ten-Bohmer is the only direct evidence that the applicant used certain phones, none of which are the same as the “Lawler” phones. These telephone numbers are not referred to in Ten-Bohmer’s statement. Any purported self-identification by the applicant is vague. The applicant states that terms such as “kel”, “Kelly” and “LLR” are proffered as self-identification but there is no voice identification or other corroborating evidence to link those names to the applicant. The applicant submits therefore that the telephone communications in relation to the “Lawler” numbers be excluded; or in the alternative that all communications in relation to 0411 192 786 after 21 February 2016 be excluded and all communications in relation to 0481 780 723 after 25 February 2016 be excluded.Mobile phone number 0411 192 786

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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