R v Jason Fairbairn
[2011] ACTSC 78
•19 May 2011
R v JASON FAIRBAIRN
[2011] ACTSC 78 (19 May 2011)
CRIMINAL LAW – trial by judge alone – charge of trafficking in a controlled drug other than cannabis – accused is guilty.
EVIDENCE – admissibility and relevancy – hearsay – whether records of telephone calls inadmissible as hearsay – admissible as admissions of accused – other party’s conversation not admitted for truth of representation.
EVIDENCE – admissibility and relevancy – tendency evidence – no notice given in time – whether prosecution should be permitted to rely on evidence – substance given well before trial – evidence admitted.
EVIDENCE – admissibility and relevancy – tendency evidence – whether of significant probative value – whether significant probative value outweighs unfair prejudice – evidence admissible.
CRIMINAL LAW – evidence – res gestae – whether doctrine survives enactment of Evidence Act 1995 (Cth).
Evidence Act 1995 (Cth), ss 59, 66, 67, 97, 100, 101, 137, Pt 3.4
Telecommunications (Interception and Access) Act 1979 (Cth), s 46
Evidence Regulations 1995 (Cth), reg 6
Supreme Court Act 1933 (ACT), ss 68B, 68C
Drugs of Dependence Act 1989 (ACT), s 192
Criminal Code 2002 (ACT), ss 602, 604
Criminal Code Regulation 2005 (ACT)
Court Procedures Rules 2006 (ACT), rr 4733, 6752
Uniform Civil Procedure Rules 1999 (Qld), rr 143(3), 151(4)
Odgers, S, Uniform Evidence Law (ThomsonReuters: Sydney, 2010) 9th ed at 280-1; [1.8.2460]
Judicial Commission of New South Wales, Criminal Trial Court Benchbook
Fleming v The Queen (1998) 197 CLR 250
R v DM [2010] ACTSC 137
R v Mulcahy [2010] ACTSC 98
R v Parkes (2003) 147 A Crim R 450
Graham v The Queen (1998) 195 CLR 606
Li v The Queen (2010) 199 A Crim R 419
Gardiner v The Queen (2006) 162 A Crim R 233
R v AB [2001] NSWCCA 496
Ming v Uvanna Pty Ltd (t/as North West Immigration Services) (1996) 140 ALR 273
R v Harker [2004] NSWCCA 427
Pfennig v The Queen (1995) 182 CLR 461
Phillips v The Queen (2006) 225 CLR 303
W v The Queen (2001) 115 FCR 41
R v Ellis (2003) 58 NSWLR 700
AE v The Queen [2008] NSWCCA 52
Tasmania v S [2004] TASSC 84
PNJ v Director of Public Prosecutions (Vic) [2010] VSCA 88
R v Ford [2009] NSWCCA 306
R v Shamouil (2006) 66 NSWLR 228
R v Blick (2000) 111 A Crim R 326
Melbourne v The Queen (1999) 198 CLR 1
Weissensteiner v The Queen (1993) 178 CLR 217
Bull v The Queen (2000) 201 CLR 443
Qualtieri v R (2006) 171 A Crim R 463
KRM v The Queen (2001) 206 CLR 221
Noto v State of Western Australia (2006) 168 A Crim R 457
R v Urbanski (2010) 108 SASR 369
R v Miller [2006] SASC 83
No. SCC 236 of 2008
Judge: Refshauge J
Supreme Court of the ACT
Date: 19 May 2011
IN THE SUPREME COURT OF THE )
) No. SCC 236 of 2008
AUSTRALIAN CAPITAL TERRITORY )
R
v
JASON FAIRBAIRN
ORDER
Judge: Refshauge J
Date: 19 May 2011
Place: Canberra
THE COURT FINDS THAT:
On the second count on the indictment, the accused is guilty.
The accused, Jason Fairbairn, was charged on indictment with two counts relating to drugs. They were:
FIRST COUNT: ... THAT on the 13th day of February 2008 at Canberra in the Australian Capital Territory JASON FAIRBAIRN possessed a drug of dependence, namely methylamphetamine.
SECOND COUNT: AND FURTHER THAT on the 13th day of February 2008 at Canberra aforesaid JASON FAIRBAIRN trafficked in a controlled drug other than cannabis, namely methylamphetamine.
Mr Fairbairn was arrested on 13 February 2008 and subsequently committed for trial in this court on 18 June 2008.
On 23 February 2009, he elected under s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) for trial by judge alone. He was arraigned on 29 September 2009 and entered a plea of guilty to the first count on the indictment and not guilty to the second count on the indictment. The trial was then listed to commence on 19 July 2010.
The trial did commence before me on that day. The first two days were, however, taken up with a voir dire on the admissibility of certain evidence. On 21 July 2010, I ruled that the evidence the subject of objection which necessitated the voir dire be admitted for the reasons that are set out below.
The trial then proceeded.
Trial by judge alone
Under s 68C of the Supreme Court Act 1933 (ACT), a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury.
The judgment of the court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. In Fleming v The Queen (1998) 197 CLR 250 (at 263; [28]) the High Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached.
Section 68C also requires me, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any Territory law requires to be given or made to a jury in such proceedings.
There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98.
As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offences charged.
If the accused does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The accused then loses the presumption of innocence and I must find him guilty.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then he remains presumed innocent and I must find a verdict of not guilty.
If I am satisfied that there may be an explanation consistent with the innocence of the accused of any charge, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.
I must determine whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness's evidence and reject part of that evidence or accept or reject it all.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experiences and wisdom in assessing the evidence.
In this case, I am asked to draw inferences from the proved facts. That is a proper role for the judge of the facts but I accept that it is necessary to be extremely careful about drawing inferences. I should examine any possible inference to ensure that it is a justifiable inference and that I should not draw such an inference unless it is the only rational inference in the circumstances.
Because the prosecution carries the onus of proof which requires it to prove its case beyond reasonable doubt as to every essential element of each offence, any inference or conclusion from proved facts relied upon by the prosecution must, of course, be a conclusion reached by me beyond reasonable doubt, having taken into consideration not only the material presented by the prosecution, but also any material presented on behalf of Mr Fairbairn and after having given careful consideration to the submission on behalf of the prosecution of Mr Fairbairn.
The voir dire
Before the trial commenced, the parties requested I consider, on a voir dire, the admissibility of certain material.
The Case Statement filed by the prosecution sets out the background to the evidence which was the subject of objection. It stated, relevantly:
On 16 January 2008, Police were issued with a warrant, pursuant to section 46 of the Telecommunications (Interception and Access) Act 1979, for the interception of communications made to or from telecommunications service [phone number provided] from 16 January 2008 to 14 February 2008. The Account Holder for this mobile service number is Jason Fairbairn, the accused.
In accordance with the warrant, the telephone conversations and text messages from and to service number [phone number provided] were recorded during the period 16 January 2008 to 14 February 2008, inclusive. The recordings of telephone conversations include calls to and from the accused during which the purchase and supply of drugs (including ‘rock’ and ‘ice’) are discussed. There are also recordings of a number of telephone calls in which the accused identifies himself and provides personal details.
What was sought to be tendered were two sets of materials, being the transcripts of the messages and text messages obtained from the intercepted telephone communications. The first set amounted to material which showed that a certain telephone number was that used by Mr Fairbairn. These were intercepted communications with various government agencies and businesses. Mr Fairbairn is said to have identified himself in these conversations.
The second set of material was of intercepted communications, in particular, twelve conversations between 18 January 2008 and 11 February 2008 and fifty-six text messages between 23 January 2008 and 11 February 2008. From this material, it was submitted by Mr A Doig, who appeared for the prosecution, that the judge of the facts could find that Mr Fairbairn was engaged in dealing in drugs.
Mr T Sharman, who appeared for Mr Fairbairn, objected to the admission of this material on three grounds: that it was hearsay, that it was tendency evidence and no notice, as required under s 97(1)(a) of the Evidence Act 1995 (Cth) (the Evidence Act), had been given and, finally, that the prejudicial effect of the evidence outweighed its probative effect. In argument, he also submitted that the material was not of significant probative effect.
I shall deal with each of these challenges in turn.
Hearsay(a)
Mr Sharman submitted that the evidence of the conversations was hearsay, that is evidence of a previous representation intended to prove the existence of a fact. Under s 59 of the Evidence Act, such evidence is inadmissible (the hearsay rule), unless one of the exceptions to the hearsay rule, set out in the Act, applies.
He pointed out that the other party to each conversation had not been identified; indeed, perhaps no steps had even been taken to try and identify them. In that event, the maker of those representations was unavailable which would mean that no relevant exception to the hearsay rule applied.
Mr Doig submitted that, so far as the recording of what Mr Fairbairn said in the conversations or the text of what he sent, the exception in s 66 of the Evidence Act applied. That section relevantly provides:
(1)This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2)If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a)that person; or
(b)a person who saw, heard or otherwise perceived the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
It would seem clear that the representation, being contemporaneously recorded, was clearly fresh in the memory of Mr Fairbairn. Mr Doig relied on what was said by Ipp J (with whom Bell J agreed) in R v Parkes (2003) 147 A Crim R 450 (at 459-60; [50] to [51]):
‘Availability,’ in the sense the term is used in s 65 and s 66, concerns the availability of a witness to be called to give evidence and to be cross-examined. That is, availability to testify about the veracity of representation previously made by the witness to another person. In the present circumstances, the critical aspect of the appellant’s availability is whether he would notionally be available, as part of his case, to confirm that the statement he had made to Jenkinson was true. The appellant was, in fact, so available. In the circumstances, in my opinion, the appellant was available to give evidence within the meaning of s 66(1). In other words, the appellant was available, as part of his case (albeit not as part of the Crown case) to give evidence about the representation he had made to Jenkinson.
On the basis of this reasoning, the only remaining issue that needs to be addressed under s 66(2) is whether, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the appellant (see s 66(2)).
His Honour, having considered the meaning of “fresh” in Graham v The Queen (1998) 195 CLR 606 (at 608), held that the representation there made was fresh and admissible.
With the greatest of respect to their Honours, I am convinced that the decision of Hulme J, who dissented on this point but not on the disposition of the appeal, is more compelling and an accurate construction of the section. His Honour said (at 470; [135] to [136]), after setting out the terms of s 66(1) and (2) (which are reproduced above at [29]):
Thus to render the evidence of Mr Jenkinson the subject of this ground admissible, at the time the question arose it had to be established that the Appellant, who was the author of the representation, had given evidence or would be called. Not all that was said by counsel during the trial has been recorded but counsel appearing for the Appellant on the appeal conceded that the trial judge was not told at any time relevant to the present issue that the Appellant would be called. Certainly the issues were such that no commitment to call the Appellant would at that time have been made. It follows that at the time His Honour struck out the evidence of Mr Jenkinson, which is the subject of this ground of appeal, that evidence was not admissible.
Nor did the situation as to the calling of the Appellant change at any time while Mr Jenkinson was in the witness box. Thus the evidence was not available in cross-examination either.
There are, however, two other issues to be considered which, it seems to me, render the telephone and text intercepts admissible. In the first place, another of the exceptions to the hearsay rules is for evidence that constitutes admissions. Except in certain circumstances set out in Pt 3.4 of the Evidence Act, admissions of an accused are admissible in his or her trial. In my view, none of the exclusions in that Part are relevant here.
An admission is defined in the Dictionary to the Evidence Act as follows:
Admission means a previous representation that is:
(a)made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b)adverse to the person’s interest in the outcome of the proceeding.
In my view, the words spoken by Mr Fairbairn in each of the sets of material amount to representations and were adverse to his interest in the outcome of the proceedings.
So far as the first set of material was concerned, they constituted admissions that the phone being used was Mr Fairbairn’s or, at the very least, one that he regularly used. Since reliance on the other communications were material to the case of the prosecution, by which it would show that Mr Fairbairn was using that phone for the purpose of drug dealing, the statements from which it could be inferred that the phone was his or regularly used by him were adverse to his interests in the proceedings.
So far as the second set of materials was concerned, they constituted admissions of drug dealing. Since the prosecution wished to rely on Mr Fairbairn’s drug dealing to show that the drugs were in his possession with the intention of selling it, the statements which showed the prior dealings were adverse to his interests in the proceedings.
As for the conversations themselves, the statements made by the other parties to the conversations or messages are, of course, not admissible as admissions and would remain hearsay if adduced for the purpose of proving the facts asserted in them. That, however, was not the prosecution’s purpose. It was, rather, to show the context of the statements made by Mr Fairbairn so as to give them meaning.
In Li v The Queen (2010) 199 A Crim R 419, Howie and Hall JJ (with whom Macfarlan JA agreed), helpfully set out a summary of the principles concerning the admissibility of statements made outside court. Their Honours said (at 425-6; [35]):
(1)The common law does not exclude all evidence of statements made outside court. If relevant, evidence is admissible to prove that a statement was made and, also, to prove its contents. From that evidence, inferences may be drawn. Commonly, inferences may be drawn as, for example, to the speaker’s intention, emotion or knowledge of or belief in the facts stated: Papakosmas v The Queen (1999) 196 CLR 297 at 312 per Gaudron and Kirby JJ.
(2)The challenge to the admissibility of the evidence of the intercepted telephone conversations has to be considered in light of the Crown case including in particular the elements constituting the matters which the Crown was required to establish. It is equally important to take into account the basis upon which the Crown at trial relied upon the evidence.
(3)The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-court statements relied on for another purpose are not excluded by the rule: Walton v The Queen (1989) 166 CLR 283 at 288; 38 A Crim R 276 at 278 per Mason CJ.
(4)Evidence of an out-of-court statement may constitute original evidence, in that it has independent evidentiary value in proving a relevant matter as, for example, the author’s intentions where such intentions are a fact in issue or a fact relevant to a fact in issue. Testimony of such a statement does not infringe the hearsay rule: Walton at 289; 279.
(5)Whether the evidence takes the form of conduct or statements, the same principles should be applied with respect to the admission in evidence or the rejection of the material as each mode of assertion is apt to be an equally communicative form of expression: Walton at 292; 281.
In that case, neither party to the telephone conversations was the accused so whether they were admissions was irrelevant. The conversations were admitted because “what was said in [them] permitted an inference to be drawn that the participants ... were talking about one particular subject–matter” (at 426; [41]).
Here, the words recorded that were spoken by the other party to the conversation are sought to be admitted so that the words spoken by Mr Fairbairn can be understood and given meaning. They are not asserted for the purpose of proving their truth.
To test that, one may ask whether it would matter if the other party was lying when he or she said what is recorded, or whether it would matter if the other party or parties were setting Mr Fairbairn up as a scam or whether they were undercover police officers who were conducting a controlled operation. It seems to me that in each of these situations, there would be no truth in the facts allegedly asserted in the representations, but the words would still be admissible to explain the words used by Mr Fairbairn.
For these reasons, I held that the intercepted telephone conversation and text material was admissible, but only in the way set out above.
(b)Tendency and notice
There was no real dispute as to whether the evidence was tendency evidence or not. Section 97 of the Evidence Act defines tendency evidence. It provides:
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Paragraph (1)(a) does not apply if:
(a)the evidence is adduced in accordance with any directions made by the court under section 100; or
(b)the evidence is adduced to explain or contradict tendency evidence adduced by another party.
Section 100 permits the court to dispense with notice in the circumstances set out in s 97 by giving a direction that the tendency rule not apply, notwithstanding the failure to give notice.
The prosecution sought to adduce this material as evidence to prove, either of itself or in conjunction with other evidence, that Mr Fairbairn had a particular intention on the occasion of his arrest. The establishment of the tendency of Mr Fairbairn to deal in drugs is then open to be applied by the judge of fact in drawing an inference that he had that intention when arrested and was admittedly in possession of drugs on 13 February 2008.
I hold that the evidence is tendency evidence. It is, therefore, inadmissible unless the prosecution “gave reasonable notice in writing ... of [its] intention to adduce the evidence”. Rule 6752 of the Court Procedures Rules 2006 (ACT) (the Rules) provides:
A notice of intention to adduce tendency evidence under the Commonwealth Evidence Act, section 97 must be in accordance with the form approved under the Court Procedures Act 2004, section 8 for section 97.
An approved form, Form 6.18 (AF 2007-76), has been prescribed for this rule. It requires the party to set out the substance of the evidence and to set out particulars of the character, reputation, conduct or tendency of the party which the evidence was to prove.
In this case, no such notice was filed and served. The prosecution sought to argue that notice had been given for the purposes of the Evidence Act in the Case Statement filed under r 4733(c)(i) of the Rules, part of which is extracted above (at [22]). This, it was submitted, was notice in writing as required by s 97 of the Evidence Act.
In the alternative, relief from non-service was sought under s 100 of the Evidence Act, especially in the light of the terms of the Case Statement.
As to the first argument, I do note that s 99 of the Evidence Act requires:
Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.
There being a rule, r 6752 of the Rules, it seems to me that the Evidence Act itself requires the prescribed form to be used; the Case Statement is not an adequate substitute.
In Gardiner v The Queen (2006) 162 A Crim R 233, Simpson J discussed briefly the requirements for a tendency notice. She said (at [128]):
A properly drafted tendency evidence notice should, in my opinion, explicitly identify the fact or facts in issue upon which the tendering party asserts the evidence bears. It should also explicitly identify the tendency sought to be proved.
The substance of the evidence may be set out in another document, not necessarily in the notice itself: R v AB [2001] NSWCCA 496 (at [13] to [15]). Thus, the material in the Case Statement would be sufficient if referred to in the properly drawn tendency notice.
This is, of course, subject to prescriptions in the Rules and the Approved Forms. It is also subject to reg 6(2) of the Evidence Regulations 1995 (Cth) which provides:
(2) A notice given under subsection 97(1) of the Act (relating to the ‘tendency’ rule) must state:
(a)the substance of the evidence of the kind referred to in that subsection that the party giving the notice intends to adduce; and
(b)if that evidence consists of, or includes, evidence of the conduct of a person, particulars of:
(i)the date, time, place and circumstances at or in which the conduct occurred; and
(ii)the names of each person who saw, heard or otherwise perceived the conduct;
(iii)in a civil proceeding – the address of each person so named;
So far as they are known to the notifying party.
Thus, it is relevant that the evidence to be adduced was clearly set out in the Case Statement and Mr Sharman was clearly under no illusion that it was to be led and to be led as tendency evidence for the purpose of inviting the judge of fact to draw an inference that Mr Fairbairn had the drugs in his possession on 13 February 2008 for the purpose of selling them.
While bearing no probative burden, I do note that Mr Sharman identified no prejudice that his client had suffered from the failure to give the notice. Hill J in Ming v Uvanna Pty Ltd (t/as North West Immigration Services) (1996) 140 ALR 273 said (at 282; [49]) of an application to adduce evidence despite failure to give a relevant notice (there under s 67 of the Evidence Act):
No criteria are laid down by the Evidence Act upon which the Court is to proceed. However, and without attempting to in any way define appropriate criteria exclusively, matters relevant to the Court in exercising the discretion, which would need to be exercised judicially, would include the prejudice to the parties by dispensing with the requirement to give notice; as well as, for example, in a case involving s 64, matters of expense and delay which might point in favour of permitting the evidence to be adduced.
The real prejudice is, of course, that which flows from the failure to give reasonable notice so that Mr Fairbairn is not in a position to meet the evidence: R v Harker [2004] NSWCCA 427 (at [41]).
A number of circumstances, where a direction was given that the restrictions on the admissibility of evidence should not apply notwithstanding the failure to give notice, are set out in Odgers, S, Uniform Evidence Law (ThomsonReuters: Sydney, 2010) 9th ed (at 280-1; [1.8.2460]).
Having regard to these issues, it seems to me that there is no prejudice to Mr Fairbairn in giving the direction sought. Mr Fairbairn and his lawyers have been well aware of the issue since the filing of the Case Statement. Mr Sharman came to trial well prepared to mount the arguments that he did, especially as to the third matter I will turn to presently, thus showing he was well aware of the issue. I will, accordingly, give the relevant direction.
The Crown ultimately filed what was called a tendency notice. While it did not comply with the prescribed form or what Simpson J had described as the requirements (see above [53]).
It simply set out the tendency alleged by the prosecution. The tendency was described as follows:
(a)the accused had a tendency to purchase illicit drugs which he might use; and
(b)the accused had a tendency, when asked by others, to sell to them some or all of the illicit drugs in his possession.
Taken together with the Case Statement, it does seem to me that this suffices and, at least, sets out with precision the tendency that is alleged. This is a reasonable requirement and, albeit late, has now been met. I directed that the evidence may be adduced notwithstanding the late service of a tendency notice.
Unfairly prejudicial outweighing the probative value(c)
Once the tendency rule does not apply, tendency evidence must still pass the test set out in s 101(2) of the Evidence Act which provides:
(2)Tendency evidence about a defendant or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
Thus, admission of such evidence is a two-step process as noted in R v Harker (at [35]).
Admissibility under s 101(2) of the Evidence Act would appear to exclude reliance on s 137 of the Evidence Act; once the former is engaged, the latter has no work to do: R v Harker (at [46]).
Mr Sharman submitted that really there were two issues I should address and which, if addressed, he submitted, would lead to a rejection of the evidence by operation of s 101(2) of the Evidence Act. In the first place, he submitted that I should apply the test of admissibility to the section that was articulated by the High Court in Pfennig v The Queen (1995) 182 CLR 461 and secondly, that the unfairness of the admission of the evidence was that it would require Mr Fairbairn to give evidence, thus surrendering his right to silence.
Mr Sharman submitted that the test in Pfennig v The Queen applied. That test was, of course, a test of the common law in relation to the admission of evidence known as “similar fact evidence”. The majority of the High Court prescribed, in that case, a more restrictive approach than had previously been articulated. They held (at 481-2) that:
... the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged ...
(Footnotes omitted)
Mr Sharman appeared to submit that the application of this test would lead to the refusal to admit the evidence. He relied on a statement of the court in Phillips v The Queen (2006) 225 CLR 303 (at 323-4; [63]) to a similar effect, but that was an appeal from the Supreme Court of Queensland, which State does not have the Evidence Act provisions.
It seems to me that the present position is that the “no reasonable explanation” test does not apply, at least not generally, under the Evidence Act. This was first so held in W v The Queen (2001) 115 FCR 41, a decision of the Federal Court on appeal from this court. There, Miles J held (at 59-60; [53]):
Returning to the application of Pfennig and Hoch, my view is that the decision in neither case governs completely a question of admissibility of evidence which is subject to the Evidence Act. There is nothing in the Evidence Act that says that for the purpose of deciding pursuant to s 101 whether probative value substantially outweighs likely prejudice, the trial judge must be convinced beyond reasonable doubt as a matter of fact that, if the challenged evidence is accepted, there is no reasonable hypothesis consistent with innocence. The dissenting judgment of McHugh J in Pfennig at 530-532 provides strong reasons for not reading that implication into the Evidence Act. Furthermore, whilst it is true that tendency evidence under s 97, and evidence subject to the coincidence rule under s 98 is circumstantial evidence, it is now well established that not every item in the circumstantial evidence chain which goes to prove guilt must itself be proved beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573. It would be strange if a judge was required to find a fact established beyond reasonable doubt for the purpose of admissibility when the jury might take the same fact into consideration for the purpose of guilt even when it had not been proved to that standard.
Madgwick J, also expressed the same support (at 71-3; [102]) for the approach that had been taken by McHugh J in Pfennig v The Queen rather than that of the majority. His Honour quoted extensively from what McHugh J there said, but the essence of it is captured in the following passage (at 528-9):
If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
In New South Wales, a different approach was initially taken (applying the Pfennig test, but described as the “no rational explanation” test) partly, it appears, because of a tendency to construe the Evidence Act in the light of the pre-existing common law. A bench of five judges, however, in R v Ellis (2003) 58 NSWLR 700 held (per Spigelman CJ at 717; [88], with whom Sully, O’Keefe, Hidden and Buddin JJ agreed) that the “no rational explanation test” was not consistent with the statutory test. The statutory test requires a balancing process and, while tilting that process in the same direction, uses different terminology, namely “substantially”.
As Mr Sharman pointed out, however, the court did not completely abandon the “no rational explanation test” for Spigelman CJ said (at 218; [96]):
My conclusion in relation to the construction of s 101(2) should not be understood to suggest that the stringency of the approach, culminating in the Pfennig test, is never appropriate when the judgment for which the section calls has to be made. There may well be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the “no rational explanation” test were satisfied.
There is, however, a difficulty in determining when this higher standard will be appropriate. One occasion may be where there is a possibility of concoction; then the higher test may be appropriate: AE v The Queen [2008] NSWCCA 52 (at [44]); Tasmania v S [2004] TASSC 84 (at [8] to [11]); PNJ v Director of Public Prosecutions (Vic) [2010] VSCA 88 (at [28]). That does not apply here.
Mr Doig relied substantially on the relatively recent decision of the NSW Court of Criminal Appeal in R v Ford [2009] NSWCCA 306. There, the court set out to show how the relevant sections of the Evidence Act should be applied. Campbell JA (with whom Howie and Rothman JJ agreed) identified in the first place what was the evidence that s 97 covered. His Honour said (at [39] to [41]):
39.Of course, before any question can arise of section 97 being applicable to evidence that a person has some particular tendency, whether that person has such a tendency must itself be relevant to a fact that is in issue concerning the particular crime that is charge. This was recognised in R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492, when Simpson J (with whom McClellan CJ at CL agreed) said (at 495 [22]-[23]):
Proof of a tendency to act in a particular way of itself goes nowhere. Evidence that a person had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, that person acted in a particular way (or had a particular state of mind); that is, to provide the foundation for an inference to that effect.
Put another way, tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind).
40.Similarly in R v Harker [2004] NSWCCA 427 at [57], Howie J (with whom Santow JA and Bell J agreed) said:
... tendency evidence is placed before the jury as evidence tending to prove the guilt of the accused. The jury are asked to reason that, because the accused acted in a particular way on some other occasion or occasions, he or she must have acted in the same way on another occasion.
41.The case law contains examples of the way in which a tendency to engage in a particular type of behaviour can be relevant to whether an accused has committed a particular crime charged, even though that tendency does not in itself involve performance of a contravention of the same provision of the criminal law as that charged, or closely similar behaviour. In R v Li [2003] NSWCCA 407, Dunford J (with whom Spigelman CJ agreed) said at [11]:
Section 97 is not directed only at evidence showing a tendency to commit a particular crime but showing a tendency ‘to act in a particular way’. In this case it was directed to showing that the appellant had a tendency to use violence to the complainant and to seek to control her in stressful marriage situations, and was relevant to whether he did by his actions on the night in question effectively ‘detain’ her; but it was not necessary for this purpose to show that he had detained her on any other occasion.
It seems to me, applying this approach, that the evidence sought to be led of the telephone conversations and texts did constitute a tendency to act in a certain way, or a pattern of behaviour, namely dealing in drugs. A single instance may have been much more problematic, but here there was, in effect, also a text “advertisement” which was responded to by text or telephone conversation. It was, as I said above, (at [44]) tendency evidence.
The next issue is whether it has significant probative value. In R v Shamouil (2006) 66 NSWLR 228, Spigelman CJ (with whom Simpson and Adams JJ agreed) said (at 237; [61] to [62]):
In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, ‘the extent to which the evidence could rationally affect the assessment ...’. The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not, direct attention to what a tribunal of fact is likely to conclude. Evidence has ‘probative value’, as defined, if it is capable of supporting a verdict of guilty.
This conclusion is reinforced by the test that evidence must ‘rationally affect’ the assessment. As Gaudron J emphasised in Adam v [The Queen [2001] HCA 57; (2001) 207 CLR 96 at 115 [60]], a ‘test’ of ‘rationality’ also directs attention to capability rather than weight. (original emphasis)
Thus, the judge in making the decision about probative value does not usurp the function of the jury. The question is about the capability of the evidence to lead, through the reasoning process required, to a finding that would be open to the jury.
In this case, it seems to me that the evidence has that capacity. That Mr Fairbairn dealt in drugs and in short order before the time when he was apprehended, and in circumstances where he could be said to have “advertised” that he had drugs available, is probative of whether the drugs of which he was found to be in possession were drugs of which he had an intention to sell.
As to the prejudice, which must be balanced, Campbell JA said helpfully in R v Ford (at [55] to [56]):
55It has also been noticed that there is a textual difference between section 101(2) on the one hand, and section 135 and 137 on the other, in that the latter sections talk of unfair prejudice, while the former talks about a ‘prejudicial effect’. A course of authority makes reasonably clear that this difference is not one of substance.
56.The unfair prejudice referred to in section 137 is not that the evidence is harmful to the interests of the accused because it tends to establish the Crown case. If that were so, then the more powerful the evidence was in showing the guilt of the accused, the greater would be the difficulty of the Crown in putting the evidence before the jury. Rather, the unfair prejudice referred to in section 137 is harm to the interests of the accused that is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way: R v BD (1997) 94 a Crim R 131 at 139 per Hunt CJ at CL; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at 325 [91] per McHugh J. In R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at 199 [116], Wood CJ at CL (with whom Sully and Howie JJ agreed) said that the prejudice referred to in section 137 meant ‘damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves’.
The only prejudice identified by Mr Sharman was that the evidence would require Mr Fairbairn to give evidence. I shall deal with that below.
Finally, the balancing task was described by Sheller JA (with whom James and Dowd JJ agreed) in R v Blick (2000) 111 A Crim R 326 (at 332-3; [19] to [20]):
19.When an application is made by a defendant pursuant to s 137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion: see the cases referred to by Priestley JA in Moran v McMahon [(1985) 3 NSWLR 700] at 716 and following, particularly Lee Transport Co Limited v Watson (1940) 64 CLR 1 at 13 and Miller v Jennings (1954) 92 CLR 190 at 197. In the second of those cases, Dixon CJ and Kitto J, in an appeal against damages awarded by the trial judge, said of the sum awarded that it was ‘reached after a very full and careful examination of the facts of the case and it represents an informed judgment upon a matter which must largely be one of opinion and must be governed to a not inconsiderable degree by an estimate formed of the witnesses and in particular the appellant’. Translated to the task set by s 137, a trial judge’s estimate of how the probative value should be weighed against the danger of unfair prejudice will be one of opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge’s own trial experience. In that sense, the result can be described as analogous to a discretionary judgment: see Heydon, A Guide to the Evidence Act (2nd ed, 1997), par 3.725.
20.Even so, and with due respect, there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected.
I shall adopt this approach and proceed accordingly.
Mr Sharman, submitted that the evidence would require Mr Fairbairn to give evidence (see [67] above). This, he submitted, would abrogate his right to silence and thus render the trial unfair.
It is not necessary for me to detail the evidence in great detail. An instructive example was as follows. On 7 February 2008, Mr Fairbairn sent a text message on his phone “I am all good again with good quality ... (it’s jas)’. On 9 February 2008, Mr Fairbairn has a conversation with a person on his phone; it contains the following (M2 being Mr Fairbairn):
...
M1Is it all right if I could someone to the shops you can meet up with them
M2 Eh yeah yeah
M1 We’re just chasing down a half
M2 Yeah no worries um when are they coming
M1 Um won’t be for a little while yet
M2Yeah mate just give me a call when they’re on their way and I’ll sort it out for ‘em
M1All right well yeah so probably soon as I call ‘em back they’ll probably be on their way
...
M2just um yeah just tell ‘em to fucking well you tell me or get something so I know they’re at the shop
M1 Yeah yeah I’ve charged them one fifty for it
M2 Yeah good shit man
On 11 February 2008, Mr Fairbairn (marked “J” below) calls on his phone a male (marked “M” below) and, in part, the conversation is as follows:
...
M... look yeah I’ve got some boys down from PERTH good mates of mine
J Yeah
M just after some fucking after some ROCK some ICE if you can
J Yeah
M Yeah but see you know I don’t deal in this stuff so
J Yeah
Mthey but they do an eight balls and fucking it’s all different lingo so I don’t know how the fuck it works
J Yeah
MBut um well there’s four us mate so you know to hook me up I don’t know if I can how much can do four of us
JWell depends what you how much you want I mean fuck you know like
MWell they’re talking they’re talking two point nine grams how much would that set us back
J How much how much
M Two point nine
J Two point nine
M Yeah
JWell you fucking that’s you just go three and then an eight balls three and a half
M eight balls three and a half
J right
M Yeah I thought so yeah yeah
J Right so an eight balls fourteen hundred
M Fourteen hundred
J Yeah
M All right can you do half of that
J Um what
M You don’t split usually do ya
JWell I can but it’s just fuck it works out more expensive its’ about fucking five hundred a gram right
M Yeah
Jso it’s better you’re better off getting it like in an eight that’s the way I buy it
M Yeah
J so you work that out it’s ...
M You know I don’t dabble in it I’m just looking after the ...
J Yeah
M Um how about just you wanna go an eight ...
JYeah yeah I can get you that I’ll have to make a phone call I haven’t got that much on me now
M All right
J um
(MALE talking off line – He can do one four for an eight that’ll fuck us)
M Hold on
(MALE talking off line – do youse want it one four for an eight ball yeah same bloke)
(People in background)
M Can you get us more GAS for a us too mate
JEh yeah I’ll have to fucking you’ll have to leave that one with me ‘cause I’ve run out and I have to go and get some more of that as well
...
Mr Sharman very properly conceded “... that the text messages and the intercepts give rise [to an inference of] dealing. I don’t think I could contend otherwise [than that they give rise to] the inference of dealing.” That must be right. As such, it had significant probative value, given the proximity in time of these communications to the time Mr Fairbairn was found in possession of drugs.
Mr Sharman submitted, however, that it was accepted by the prosecution that Mr Fairbairn was also a user of drugs. That makes the inference to be drawn perhaps less certain, but not of insignificant or no significant probative value.
He submitted that the issue was somewhat complicated when the trial was by judge alone. He referred to what McHugh J said in Melbourne v The Queen (1999) 198 CLR 1 (at 17; [40]) as follows:
The ‘no other reasonable explanation’ test requires the judge to come to a view as to the guilt of the accused before the evidence in question is admitted. If, at the state of determining whether the evidence is admissible, the judge decides that there is no ‘reasonable explanation’ for the evidence other than inculpation of the accused, the evidence will be admitted. The judge has then, in effect, determined that the accused is guilty of the charges although, of course, it is for the jury to determine the ultimate question of the guilt or innocence of the accused on the whole of the evidence. Where the trial is by a judge without a jury, he or she must also examine the whole of the evidence before finding the accused guilty, notwithstanding that he or she has already decided that there is no reasonable explanation for the disputed evidence other than the accused’s guilt.
Mr Sharman submitted that in a trial by judge alone, the admissibility test is a higher test, perhaps more akin to the “no reasonable explanation test”. He then submitted:
That might be a difficult proposition for me to make good on, your Honour, the concept that significant probative value should attract some sort of higher test in a judge alone trial. But that would be the reasoning that I’d follow in relation to that argument. And it’s really because, in my submission, it shouldn’t be that just because a person elects for a judge alone trial that this should become a non-issue, that ultimately the judge should just receive everything and make appropriate directions and consider the evidence appropriately.
I have to say that I did find this argument a little difficult to follow. It seems to me that the effect of s 68C of the Supreme Court Act is that the trial by judge alone should be conducted as much as possible as if it were a trial by jury, but simply with the judge of the law and the judge of the facts the one person. Ordinarily, the test for admissibility of evidence should be the same. Clearly there will be cases where evidence is sought to be adduced, for example by tender of a document, and it is ultimately ruled inadmissible, even though the judge has seen it. The judge conducting a trial without a jury will put its contents out of consideration. That would be one difference, for usually the adduction of inadmissible evidence before a jury would require its discharge.
I do not see, however, that the evidence should be more restricted when the trial is by judge alone. Principle might suggest it could be less restricted because of the expectation that a judge can ignore inadmissible evidence and not be subject to the same prejudice as a jury, though I consider that to be a dangerous approach and would not encourage it without specific legislative direction.
There does not seem to me to be any basis for the approach suggested by Mr Sharman in this regard.
He then submitted that there would, if the evidence was admitted, “...be an overwhelming pressure perhaps on an accused because a judge has made a pre-trial determination that the only inference available on the Crown case is the guilt of the accused”. This may be so on the “no reasonable explanation test” if one applied the approach articulated by McHugh J in Melbourne v The Queen (see [89] above). I do not consider that this is the approach here.
Mr Sharman submitted that were the evidence admitted, “the accused is faced in [sic] a position where they have to respond ... to give up his right to silence”. That may be so, but it is always a question for the accused. If the prosecution case is strong and there is an explanation that the accused can give, then the accused may be faced with having to give it or risk that he or she will be found guilty. That does not mean that the court, whether judge alone or judge and jury, can, other than in exceptional circumstances, draw an inference from the accused’s silence. It is not, however, an unfair trial where the strength of the prosecution case is such that it calls for an answer. To articulate the proposition in that way shows that it is incorrect.
As Campbell JA said in R v Ford (see [80] above), it is not unfairly prejudicial for there to be a strong prosecution case. There has to be more, namely the unfairness of the trial. I know of no authority which holds that, where the prosecution case is such that it effectively requires the accused to give evidence to answer it, the trial is unfair. Indeed, it might be argued that such a proposition cannot stand with decisions such as Weissensteiner v The Queen (1993) 178 CLR 217 (however limited its application may be).
In my opinion, no unfair prejudice has been shown to Mr Fairbairn by the admission of the intercepted texts and telephone conversations and I will admit them.
Res Gestae(d)
Mr Doig did make one further submission in support of the admissibility of the relevant material. He submitted that it was part of the res gestae of the offence alleged, since he submitted the “advertisement” was, in respect, inter alia, of the drugs which Mr Fairbairn was said to have possessed when arrested on 13 February 2008.
The doctrine of res gestae is a common law doctrine. See Bull v The Queen (2000) 201 CLR 443 (at 475-7; [108] to [115]).
In view of my decision on the issues above, I do not need to consider this argument. In any event, there is a serious question about whether the doctrine has survived the enactment of the Evidence Act in those jurisdictions where the Act applies. Certainly, Miles and Madgwick JJ did not think so in W v The Queen (at [43] and [97]). I doubt that it has.
Further direction or warning(e)
Mr Sharman suggested I should give myself a “tendency direction” at the time I admitted the evidence. He relied on a reference to this in the Criminal Trial Court Benchbook of the Judicial Commission of New South Wales (at 632; [43]). The reference cited Qualtieri v R (2006) 171 A Crim R 463 (at 487; [80]).
I have to say, with the greatest of respect, that I do not read the passage referring to the giving of a jury direction to tendency evidence at all, but to relationship evidence, especially where it consists of or suggests prior illegal acts.
In addition, I note what McHugh J said in KRM v The Queen (2001) 206 CLR 221 (at 235; [39]):
In most cases, however, the need for a propensity warning arises from evidence concerned with subsidiary issues rather than the existence of a multiplicity of counts involving the same or similar offences or by reason of the admission of similar fact or propensity evidence in respect of some but not all counts. If evidence tendered to prove a subsidiary issue (including the relationship between the parties) reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning. In some cases, giving the warning may excite the very prejudice that it purports to eliminate. And if evidence has been admitted generally as propensity evidence, it is difficult to see how a propensity direction is ever required. In that class of case, the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he or she is charged. To require a propensity direction would contradict the basis on which the propensity evidence is admitted. And that is so, whether the propensity evidence consists of uncharged acts or evidence supporting the charge in one count that is also relevant to charges in other counts in the presentment. Conversely, a propensity warning will be required if propensity evidence is admissible in respect of some but not all counts in the presentment and there is a risk of prejudice in respect of those other counts.
See also Noto v State of Western Australia (2006) 168 A Crim R 457 (at 464; [26] to [28]).
Nevertheless, I am clear that I cannot rely on the evidence to prove a pattern of behaviour which reveals that Mr Fairbairn has a tendency to act in a certain way, namely to sell illicit drugs when requested, unless I am satisfied of that evidence beyond reasonable doubt. If I am so satisfied, I can use the evidence in considering whether Mr Fairbairn committed the offence with which he has been charged. I cannot and will not reason that because he has committed one crime he is a person of bad character and for that reason must have committed the offence with which he has been charged.
Significant probative value(f)
Mr Sharman further submitted that the evidence could not be of significant probative value because there was no evidence of a request for Mr Fairbairn to sell drugs after he had obtained possession of them. That the evidence be of significant probative value before it can be admitted is required by s 97(1)(b) of the Evidence Act.
His submission was that it could not assist in proving the state of Mr Fairbairn’s mind at the relevant time. The articulation of the tendency was put by the prosecution in the following terms:
... a tendency when asked by others to sell them some or all of the illicit drugs in his possession.
Mr Sharman submitted that this would require a request to have been made to Mr Fairbairn before the relevant intention could be formed. Here, he submitted, there was no such request.
It seems to me that there is nothing in this point. An intention to sell can be formed prior to a request being made and if the obtaining of the drugs is achieved in the context of Mr Fairbairn being willing to sell as alleged, then I am not satisfied that this tendency is not probative of the state of mind of Mr Fairbairn at the relevant time.
It also seems to me that one can have an intention to sell that is not exclusive of an intention to use some of the drugs or, if a sale does not eventuate in a time-frame of the possession that, the drugs may be used by the possessor instead. Clearly one cannot sell and use the same drugs but the intention may be held in the alternative, with a consecutive concept (I will sell but if I cannot sell, I will use) or an intention of both as to parts of the whole.
That Mr Fairbairn was dealing shortly before he was found in possession and after he had effectively invited people to contact him if they sought drugs seems to me of significant probative value.
There is no substance in this part of the objection.
The trial
As a result, the trial proceeded. Mr Doig called Detective Senior Constable Peter Dean, the informant for the charges laid against Mr Fairbairn.
Through Detective Senior Constable Dean, Mr Doig tendered:
· Two statements of Detective Senior Constable Dean.
· A statement of Constable Nicholas Arley.
· A statement of Constable Benedict Chapman.
· The transcripts of telephone conversations and text messages that had been lawfully intercepted under warrant.
· The transcripts of the telephone conversations where Mr Fairbairn identified himself as using the relevant telephone service.
· Some transcripts of text messages sent to and from Mr Fairbairn’s telephone on 13 February 2008.
· Photographs of items seized from Mr Fairbairn.
· Certificate under s 192 of the Drugs of Dependence Act 1989 (ACT) (the Drugs of Dependence Act) recording the results of tests on items seized from Mr Fairbairn.
· Photographs taken during the execution of the search warrant on Mr Fairbairn’s house.
As a result of reading this material and hearing the submissions of counsel, I am able to make the following findings of fact to the required standard of satisfaction:
On 16 January 2008, a warrant was issued under s 46 of the Telecommunications (Interception and Access) Act 1979 (Cth) authorising police to intercept communications made from telecommunications service [phone number provided] and police did that between 16 January 2008 to 14 February 2008.
The account holder for the service was Mr Fairbairn and during the period of interceptions, the communications monitored showed that he, and only he, regularly used the service. I am satisfied that the service is one that he uses and that communications made from it, unless the contrary is shown in a particular case, are made by him and communications to it are received by him, unless in a particular case the contrary is shown. No such contrary cases were made out in these proceedings.
The communications showed that Mr Fairbairn was knowledgeable about and involved with the use and distribution of illegal drugs, usually referred to as “rock” and “ice”. In particular, I can infer that he was involved with the use and distribution of methylamphetamine.
For example, on 23 January 2008, Mr Fairbairn received a text in the following terms:
My boss is after 50 worth of some sort of fast, but we both start work at 3.00.
He responded: Min amount of gas is half a gram an that is 100 an there is someon at my place now that can do it for you ... Let me know if you want it.
He received a message: Ok ill get the half, i should b their bout 2.30.
He responded: Just ask for Paul.
He then sent a message to another service: Hey bro can you do me up half a gr of gas an a guy called jeff will pick it up at 2.30 ...... Is that cool?
The next day a similar exchange occurred.
On 25 February 2008, a series of text messages were sent to and from Mr Fairbairn’s service which I am satisfied involved him arranging to purchase drugs. The first message sent to him read “Hey bro u need any at tha moment my mates lookin 2 shift sum?” The exchange continued (omitting irrelevant messages):
Mr Fairbairn sent: “What can you do 20 for”
Mr Fairbairn received: “20 for 20”
Mr Fairbairn sent: “Wat ya got”
Mr Fairbairn received: “Supamans there good”
Mr Fairbairn sent: “Can you deliver to me an they beta be good ... bro”
Mr Fairbairn received: “Yeh should be able 2 deliver bro, i woulnt give ya shit stuff”
Mr Fairbairn sent: “Wen will you be around”
Mr Fairbairn received: “Bout an hour”
On 7 February 2008, Mr Fairbairn sent thirteen messages to various (and different) services all of which were in the following terms “I am all good again with good quality ... (Its jas).” I am satisfied that this was in the nature of an invitation to people to approach him to obtain drugs from him.
A telephone conversation on 9 February 2008 which was received by Mr Fairbairn’s service from one of the recipient services of the messages sent on 7 February 2008. In it the caller says “We’re just chasing down a half” and Mr Fairbairn replies “Yeah no worries...” I am satisfied that the conversation was the making of arrangements for Mr Fairbairn to sell drugs to the caller.
A number of messages from a particular service appeared to respond on 10 February 2008 commencing with a message to Mr Fairbairn, “Hey mate u good 4 an 8b”, continuing with arrangement for the supply of that for a price and the method of delivery. I am satisfied that this was the sale of drugs.
On 11 February 2008, Mr Fairbairn called another person seeking to access “some more um stuff” because he had people “asking for it left right and centre”.
As Mr Sharman properly conceded the material is the basis for a clear and unarguable inference that Mr Fairbairn was dealing in drugs during the period when his communications were intercepted. I am also satisfied that he dealt both directly from what he had and also facilitated supply from third parties to those who had sought supply from him.
On 6 February 2008, police obtained search warrants under the Drugs of Dependence Act authorising them to search Mr Fairbairn, a white Hyundai Accent sedan which surveillance showed Mr Fairbairn was driving and his premises at O’Connor.
At about noon on 13 February 2008, Detective Senior Constable Dean became aware of intercepted communications to and from Mr Fairbairn’s service which showed he was arranging for a purchase of drugs at about 3.00 pm that day. Detective Senior Constable Dean arranged for Mr Fairbairn’s movements to be monitored from about 2.00 pm. He was seen to arrive at an address in Mawson at 4:05 pm.
At 4.24 pm, the white Hyundai Accent sedan was stopped by police in the suburb of Pearce, ACT. Mr Fairbairn was driving and a female passenger was also in the car. Mr Fairbairn was spoken to by police. He sought to speak to a solicitor and a police officer gave him his phone from the car to locate the phone number of his solicitor. The phone was then seized by Constable Chapman. Mr Fairbairn contacted his solicitor on a police phone.
The car was then searched. Nothing relevant was located and no property seized. Mr Fairbairn was then taken to Woden Police Station and placed in an open cell. Constable Chapman then searched his clothing and found a clip seal bag in the pocket on the right hand side of his jeans. It contained a pale yellow crystalline powder which was later analysed and shown to be 3.359 grams of powder containing 50.4% methylamphetamine, being 1.692 grams of pure methylamphetamine. This is less than the quantity of two grams which is prescribed under the Criminal Code Regulation 2005 (ACT) for the purposes of s 604 of the Criminal Code 2002 (ACT).
Police then went with Mr Fairbairn to his home in O’Connor. When they arrived they found a male there who was Paul David Kelly. The premises were searched and in the garage a box of multiple weighing units and numerous clip seal bags were located. The bags had blue star, black scorpion and yellow smiley face motifs on them. These items were subjected to forensic tests but nothing relevant to the charge was ascertained.
The contentions
As Mr Fairbairn had pleaded guilty to the charge of possession of the drug of dependence, namely methylamphetamine, the only issue in respect of the charge to which he has pleaded guilty, is whether he was, in the terms of s 602 of the Criminal Code 2002 (ACT), trafficking in it. The relevant meaning as asserted by the prosecution was that set out in s 602(e), namely that he “possesses the drug with the intention of selling any of it”.
The prosecution case depended on the inferences that I could draw from the intercept material and the circumstances of the purchase. The prosecution relied on a number of elements from the intercept material. It relied on the ordinary sales that clearly were completed by Mr Fairbairn; it relied on what was termed “pooling” where Mr Fairbairn and others would pool together to purchase through him (which has been held to involve supply in R v Urbanski (2010) 108 SASR 369); it relied on an occasion where in response to a complaint that a sale through his “missus” was short weight, he used his own drugs to make up the deficiency; it relied on the “advertisement” of availability only four days before he was arrested; it also relied on the fact that on a number of occasions, Mr Fairbairn was, in the intercepted material, dealing in an “eight ball”, the amount he sought on 13 February 2008 and appeared to have in his possession on that day.
Mr Sharman did not challenge the lawfulness of the interceptions or of the searches and did not require the warrants to be tendered. His point was really quite a short but significant one which he put in this way:
Your Honour has before you clear evidence of what occurred on the day – an invitation from somebody else, an invitation that was accepted, an 8-ball that was purchased and an 8-ball that was found in his possession. I don’t seek to address your Honour on the inferences that your Honour can take. As I said, it’s clear – that not being in contest, the clear inference you take it that he’s open to dealing illicit substances, commercially, otherwise, that he’s open to source them, it seems, on a reasonable inference from some of the intercepts for other people, but that he also uses drugs. He buys them in that form ... Is the inference that it was for supply an inference which your Honour can take from that material, the only rational inference that your Honour can take? It simply is not.
Mr Sharman relied on the concession by the prosecution that Mr Fairbairn was a “user dealer”; that is to say, he is a drug user but also a dealer. He also relied on the express disclaimer of the prosecution that it was relying on either the weight or the purity of the substance.
Mr Sharman accepted that Mr Fairbairn came into possession of the drug sometime between 4.04 pm and 5.27 pm (when the drugs were located) on 13 February 2008. What was missing, Mr Sharman submitted, was any contemporaneous request for Mr Fairbairn to sell the drugs or any part of them found in his possession.
Mr Sharman submitted that, until Mr Fairbairn received a request for the sale of the drugs, no intention was or could be formed. In other words, I had to be satisfied that his state of mind was that he had an actual intention to sell between 4.04 pm and 5.27 pm. There was, and he noted, no admission as to that.
Consideration
Despite being a short and discrete point, this is not an easy one to decide. I must be careful not to reason impermissibly in that I must not reason that because Mr Fairbairn has acted in a certain way on one occasion, he will inevitably act in the same way on the alleged occasion unless I am satisfied of that beyond reasonable doubt.
There are two matters that, in my view, need to be addressed. The first is the nature of the intention. There is no evidence that before or after Mr Fairbairn came into possession of the drugs (as is admitted by him) that he was approached to sell the drugs nor that he sought out a buyer.
Clearly one can have an intention to sell in respect of some goods even without a direct request. That is how all retailers operate.
In R v Miller [2006] SASC 83, the South Australian Court of Criminal Appeal cited with approval the following formulation of the trial judge’s articulation of the relevant intention that founded a conviction for possession of drugs for sale (at [40]):
Before concluding, I go back to my findings in relation to the possession for sale counts that some at least of the tablets were for sale. I do not mean to imply that the accused had in her mind the number of tablets which she intended to sell and the number of tablets which she intended to consume. I am satisfied, however, that her state of mind at the relevant time was that she would sell some at least of the tablets, with the actual number to be determined as and when the opportunity or opportunities arose.
It seems to me that this correctly expresses not only the way in which intention can properly be assessed, it also raises the second issue.
Not in issue is whether one can have an intention to sell goods even if they may be at some stage available for self use. A corner store owner who has milk for sale but ends up using some for himself or herself has an intention to sell all the milk in the store’s refrigerated display until he or she appropriates that carton for self use.
In my view, one can have such an intention. Even were there to be an immediately formed intention to use some of the drugs himself, Mr Fairbairn can have an intention to sell an undifferentiated part of the drugs involved.
Thus, the only real question is whether I can be satisfied beyond reasonable doubt that Mr Fairbairn’s state of mind was that he would sell at least some of the drugs when the opportunity arose, whether or not he intended to use some of the drugs for his own use.
If, however, I cannot be satisfied that he was not intending to use all the drugs for his own use, I must acquit him of the offence.
I have given careful and anxious consideration to this issue. I have read carefully the transcripts of the intercepted telephone calls and texts. It is clear that Mr Fairbairn had a range of purchasers who contacted him, as well, as the “advertisement” must have suggested, that he was contacted when he “drummed up trade”.
This strongly suggests to me that Mr Fairbairn would ordinarily have drugs on hand and that is re-inforced by the message he sent only four days earlier to let people know that he had drugs available to sell.
While he is an admitted user, and is likely to use some of the drugs in his possession, I am satisfied that he is willing to sell even some intended for his own use when the circumstances arise.
As a result, I am satisfied beyond reasonable doubt that Mr Fairbairn had an intention to sell at least a part of the drugs found in his possession on 13 February 2008 and is therefore guilty of count two on the indictment and I will so find.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 19 May 2011
Counsel for the Crown: Mr A Doig
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr T Sharman
Solicitor for the defendant: Kamy Saeedi Lawyers
Date of hearing: 19, 20 and 21 July 2010
Date of judgment: 19 May 2011
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