R v LOCKWOOD-LARBARBERA - [2019] SADC 123

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v LOCKWOOD-LARBARBERA
[2019] SADC 123
Reasons for Ruling of His Honour Judge Durrant
14 August 2019
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE
(1) The accused applied under Rule 49 of the District Court Rules for orders that the prosecution not be permitted to lead evidence relating to police surveillance, telephone intercepts and searches of the premises of another person and premises of the accused. Application granted in part and otherwise dismissed.
(2) The prosecution applied to file a Notice of Intention to lead Discreditable Conduct Evidence out of time. Application granted.
(3) Defendant objected to the admission of the evidence of discreditable conduct proposed. Discreditable conduct evidence allowed.
District Court Criminal Rules R49; Evidence Act 1924 s 34P, referred to.
Tripodi v R (1961) 104 CLR 1; R v Corak and Palmer (1982) 30 SASR 404; R v Soteriou (2013) 118 SASR 114, considered.

R v LOCKWOOD-LARBARBERA
[2019] SADC 123
Introduction

At the commencement of the trial in this matter on 14 August 2019, the accused Joseph Patrick Lockwood-Labarbera pleaded not guilty to a single count of trafficking in a controlled drug, namely methylamphetamine, contrary to s.32(3) of the Controlled Substances Act, at Paralowie or other places, knowing or being reckless as to the fact the substance was a controlled drug.
Two applications were considered prior to empanelment of a jury. First, a comprehensive Interlocutory Application of the defendant filed on 1 August 2019, pursuant to District Court Criminal Rule 49, to exclude certain evidence. Second, an oral application by the prosecution for leave to file, out of time, a Notice of Intention to lead Discreditable Conduct Evidence (the DCN).
Following a voir dire, I made a ruling in respect of both applications and indicated I would provide written reasons. I granted leave to file the DCN and excluded some, but not all, of the evidence the subject of the Rule 49 application. Consequent upon granting leave to file the DCN, counsel for the defendant objected to the admission of the evidence of discreditable conduct proposed. I allowed the discreditable conduct evidence. These are my written reasons in respect of: leave to file the DCN; the Rule 49 Application; and, the objection to the discreditable conduct evidence.
The evidence gathered by a covert police operation which commenced in October 2015 - Operation Sweep - founded the single charge against the accused. That operation started with a man called Todd Roberts who was suspected of dealing drugs in the northern suburbs of Adelaide. Operation Sweep included surveillance, telephone intercepts and an undercover police officer posing as a member of the public to engage with and purchase drugs from Todd Roberts.
Police first obtained a warrant to intercept the telephone communications of Todd Roberts and also put him under surveillance. On 28 November 2015, the intercept on Todd Robert’s phone recorded his brother Jack Roberts passing on to Todd Roberts the mobile phone number for the accused. At call 17310 Jack rings Todd Roberts and says 'Yeah, thing said can you ring him on private ASAP'. Todd Roberts replied 'Yep, send me his number'. At calls 17310-17316, Jack Roberts provided the private telephone number of the accused, a couple of times at least, to Todd Roberts. The first telephone communication between the accused and Todd Roberts was in call 17317 that same day when Todd Roberts called the accused one second after receiving the number for the accused from his brother.
Following the intercept on 28 November 2015, on Todd Robert’s phone, the accused became a person of interest and a warrant for the interception of his phone was obtained. Surveillance of the accused also commenced.
The prosecution submitted that the evidence disclosed a close association between the accused and Todd Roberts consistent with trafficking by a drug distribution network. In particular, the Crown alleged the telephone communications were atypical and consistent with the mode and method of communication between persons involved in the distribution of drugs and were designed to avoid detection.
The case intended to be prosecuted against the accused was that he and Todd Roberts had acted in furtherance of a common criminal purpose.
There was, said the prosecution, evidence of uncharged acts which could be used to show the accused was in the business of trafficking drugs. That evidence was objected to in the Rule 49 application and was also the subject of the DCN and the objection thereto.
On 13 October 2015, it was alleged that Todd Roberts sold drugs to Benjamin Fluris. After telling Fluris he was ‘out’, it was alleged Todd Roberts visited the accused to obtain drugs and, before he had even left the house of the accused, messaged Fluris, 'I got'.
On 2 and 3 November 2015, Todd Roberts told Fluris and Melissa Print he was out. Surveillance showed him later going to the home of the accused and it was alleged the accused supplied Roberts with drugs. Within 15 minutes of Todd Roberts being at the accused's home he had sent a message to Melissa Print 'I got more'.
On 28 November 2015, after telling Print and another person, Snewin, he was out, Todd Roberts paid a late-night visit to the accused at which it was alleged the accused supplied him drugs. The next day Roberts announced he 'had new'.
On 27 December 2015, the prosecution said the accused trafficked in drugs as he used Zach Jordan's phone to direct Todd Roberts to sell drugs to a person at Solver Paints at the intersection of Grand Junction and Churchill Roads.
On 4 January 2016, the prosecution alleged that the accused supplied Todd Roberts drugs when he attended at his home. Todd Roberts texted an unknown person he had 'got new'.
On 14 January 2016, the prosecution alleged the accused had directed his mother to supply Todd Roberts with drugs using the words 'Do you know what I mean'.
On 28 January 2016, the prosecution said the evidence showed that Todd Roberts and the accused were together and the accused and Adam Grinsted agreed to meet. Todd Roberts arranged to be picked up from Adam's house by cab and then told Melissa Print he had new.
On 9 February 2016, it was alleged that the accused involved Todd Roberts in a drug deal with Matthew Nudo. On that occasion, the accused asked Todd Roberts for the ‘same green shirt’.
On 13 February 2016, the accused corresponded with Darren Schmidt and asked Todd Roberts to ‘pop past Schmidty's for his birthday’ and said, 'you know what I mean'. The prosecution alleged that was a direction by the accused to Todd Roberts to supply drugs to Darren Schmidt.
It was also alleged that Todd Roberts had sold drugs on many occasions to the undercover operative U63 and in respect of the charged offence, intended to sell drugs to U63 but was arrested before the transaction was complete.
Ms Davey, for the defendant, acknowledged that the evidence was interwoven and the Court must, in considering the defendant’s Rule 49 application, consider each piece of surveillance, telephone intercept and physical evidence referred to, in order to see exactly how the prosecution intended to close to the jury and any necessary and consequential directions.
The Rule 49 application filed was extensive. I was, however, asked only to rule in respect of paragraphs 5, 9, 12 to 20, 21 (as amended) and 22 to 29.
It was common ground that, in respect of the Rule 49 Application, the prosecution case relied on the co-conspirators rule as outlined in Tripodi v R [1]. For the objected to evidence to be admissible the prosecution must establish reasonable evidence of a preconcert as a condition precedent. That concept is based on the implied authority between co-conspirators that if words or actions are in furtherance of a common purpose, the words and actions are on behalf of all in that common purpose.
[1] (1961) 104 CLR 1 at 6-7. See also R v Corak and Palmer (1982) 30 SASR 404 at pp 405-6.
It was not seriously in dispute that Todd Roberts was trafficking in methylamphetamine. The question for consideration was whether there was reasonable evidence that the defendant was involved in a conspiracy to traffic drugs with Todd Roberts and when that involvement might have begun. Further, the intercepts and surveillance and search evidence needed to be relevant. Finally, the defence submitted, in respect of some of the evidence, I should exercise my discretion to exclude.
It was conceded by defence that, at some point of time, reasonable evidence of a conspiracy existed. The evidence sought to be excluded therefore fell into a few categories:
·surveillance evidence of Todd Roberts and his associates on 13 October 2015 prior to the identification of the accused as a person of interest on 28 November 2015, which included the attendance at the accused’s house;
·surveillance of the accused and his associates before the point in time when reasonable evidence could be identified of a conspiracy between the accused and Todd Roberts;
·vague and uncertain telephone communications which were not notified to be the subject of expert evidence indicating the meaning of those communications;
·telephone communications which the defence said were obviously innocent; and
·evidence obtained in a search of the residence of Todd Roberts and in a search of the separate residence of the accused.
In assessing the application, I have had regard to the whole of the evidence referred to in argument to determine whether I am satisfied there was reasonable evidence of conspiracy and a real possibility of pre-concert.
I am satisfied there is such evidence. The telephone intercept evidence referred on 13 October 2015 and the surveillance of Todd Roberts attending at the house of the accused that day is sufficient. Further, the evidence on 2 and 3 November 2015, 28 November 2015, 27 December 2015, 4 January 2016, 14 January 2016, 15 January 2016, 16 January 2016 and 31 January 2016 also constitutes reasonable evidence of a conspiracy to traffic drugs between the accused and Todd Roberts.
Having come to such a conclusion, I consider that the surveillance evidence and the telephone intercepts of Todd Roberts and his associates both prior to and after the identification of the accused as a person of interest are, subject to relevance to the charge, admissible.
The submission of the defendant that vague, elliptical and uncertain telephone intercept evidence should not be admitted, unless accompanied by expert evidence providing an interpretation of meaning, is rejected. The meaning of the intercepts, if relevant and otherwise admissible, is a matter for the jury. The evidence of a qualified expert, such as an experienced police officer conversant in the dealing of drugs, may assist the jury but in the end, it is a matter for the trier of fact.
As to the submission that certain of the intercepts contained obviously innocent communication, that is not a matter which, I find, is obvious. The communications which the defendant says are innocent are vague, uncertain and elliptical and capable of a meaning consistent with the commission of the uncharged acts and charged act. They are relevant and it is a matter for the trier of fact to determine meaning.
Paragraph 5 sought to exclude the surveillance and observations of police on 23 December 2015. That surveillance evidence included surveillance of the accused and Todd Roberts and their associates allegedly dealing in and taking steps to deal in drugs. That evidence was relevant and is probative as it goes to uncharged acts of trafficking in drugs and to the relationship between the accused and Todd Roberts.
Paragraph 9 sought to exclude the items found in the searches of the residence of Todd Roberts and the separate residence of the accused. A number of items were seized at Todd Roberts house including large quantities of high denomination cash, digital scales, pre-seal bags, methylamphetamine and tick lists. Further, cannabis and bongs were found. They are relevant to show that Roberts was dealing in drugs and to the allegation that the accused was directing him. A search of the defendant’s residence did not disclose any such items. I excluded the evidence of items seized in the search of the defendant’s premises as being more prejudicial than probative.
Paragraph 12 sought to exclude the surveillance observations of police and telephone intercepts obtained by police on 13 October 2015. As already noted, that evidence related to Todd Roberts, the accused and their associates, dealing in and taking steps to deal in drugs. The defence contended in the Rule 49 application the evidence amounted to discreditable conduct evidence under s 34P and failed the test outlined in s 34P(2) of the Evidence Act 1924. That evidence was relevant and highly probative as an uncharged act and satisfies the test in s 34P(2).
Paragraph 13 sought to exclude telephone intercept calls 8502 and 8503 relating to the uncharged act alleged on 2 November 2015. Those SMSs were between Benjamin Fluris and Todd Roberts. Fluris asks for drugs and Roberts tells him he doesn’t have any. That evidence was relevant and probative as an uncharged act.
Paragraphs 14 to 17 and 19 to 29 sought the exclusion of a number of intercepts. I will consider those intercepts in bundles where possible.
I have already mentioned the intercepts on 28 November 2015, (calls 17310-17462) that involved Todd Roberts, his brother Jack Roberts, the accused (on one occasion) and other persons. Those intercepts involve Jack Roberts being notified by the accused of his ‘private’ phone number and passing that onto his brother who then contacts the accused. The prosecution said the surveillance evidence, also sought to be excluded, established the accused and Todd Roberts knew each other and the evidence of the accused passing on his ‘private number’ to Todd Roberts, a drug dealer, is consistent with behaviour within drug distribution networks. The balance of the calls in 17310-17462 relate to alleged trafficking by Todd Roberts. The intercepts are relevant and highly probative and the prejudice to the defendant derives from the probative force of the evidence. The application to exclude those intercepts was refused.
Calls 915 to 985 and 2432 to 2454 on 27 December 2015 involve calls between Todd Roberts and the accused. The Crown said call 983 was between the accused using the phone of another person, Zach Jordan. Those calls are relevant to an uncharged act and also to the manner of communication between Todd Roberts and the accused designed to avoid detection. The application to exclude was refused.
Calls 4281, 3324 to 3413 on 4 January 2016, 5658 and 5661 and 5287 on 10 January 2016, 6550 and 6551 on 14 January 2016, 7053 and 7056 and 7037 on 15 January 2016, 7293 to 7380 and 7341 to 7250 on 16 January 2016, 7804-7806 on 18 January 2016, calls 8406-8422 on 22 January 2016, 9483-9720 on 26 January 2016, calls 11455-11498 on 29 January 2016, calls 10607-10611 on 31 January 2016, calls 13754-13758 on 10 February 2016, calls 116801-11138 on 3 February 2016, check calls 11459 and 11501 on 4 February 2016, calls 12318 to 12644 on 9 February 2016, calls 18156 and 18615 on 28 February 2016, call 20450 on 4 March 2016, calls 13754 to 13758 on 4 February 2016, calls 12726 to 127818 on 10 February 2016, call 1279 on 11 February 2016, calls 13318 to 13320 on 13 February 2016, calls 17194 to 20443 and 17195 to 20443 on 4 March 2016, calls 17644 to 17676 on 7 March 2016, calls 18054 to 18065 on 10 March 2016, call 18144 on 11 March 2016 and call 18234 on 13 March 2016 are relevant to the charged act, to uncharged acts to the manner of communication between Todd Roberts and the accused and to the consciousness of guilt. The application to exclude was refused.
Calls 17515 to 17525 on 29 November 2014 related to Todd Roberts informing his customers they ‘got now’. They are relevant to uncharged acts and the application was refused.
Calls 4781-4790 on 6 January 2016 involved intercepts on the accused phone. An associate informed him that he had seen, near the accused house, about twenty detective cars looking like they were ready to set up a raid. The accused passed that information onto others, including his mother, using coded language. That evidence is relevant and probative to the conduct of a drug distribution network and uncharged acts. The application to exclude was refused.
Calls 9945 to 11188 on 28 January 2016, involved intercepts between the accused and Adam Grinsted, who the prosecution said was a crucial player in the charged act. That series of intercepts are part of the evidence to place the accused and Todd Roberts with Grinsted in respect of an uncharged act of trafficking going to show the accused was in the business of trafficking drugs, thereby making it more likely that he committed the charged offence. The application to exclude was refused.
On 5 March 2016, the day after Todd Roberts was arrested, there were a number of attempts by the accused to contact Todd Roberts. The accused speaks to the sister of Todd Roberts, offered to find Roberts a lawyer, offered to help his sister out with money if she needed it and wanted to know what had happened with Todd’s bail. That evidence, said the prosecution, was to consciousness of guilt. Subject to a direction to the jury about the use they can make of the evidence, it is relevant, and the application to exclude it was refused.
Call 18190 on 12 March 2016 also related to conduct after the arrest of Roberts and was relevant and admissible as going to consciousness of guilt.
Calls 1763-1769 on 30 March 2016 related to intercepts of calls from the mother of Todd and Jack Roberts to the accused. They are relevant to the relationship between Todd Roberts and the accused. There was no prejudicial effect to that communication.
Calls 2679 to 2817 on 4 April 2016 involved the accused discussing with Adam Grinsted and Jack Roberts a raid that had been effected on his house. The raid ended at 5.01pm on 4 April 2016 and the accused immediately placed a call to Adam Grinsted, who the prosecution says was involved in the charged offence. He also called Jack Roberts, the brother of Todd Roberts, to tell him about the raid. That evidence went to consciousness of guilt and was admissible.
During the course of argument, the Crown indicated that in respect of certain telephone intercepts, evidence would not be led. They have been noted on the transcript and will not be canvassed in these reasons. Further, as a consequence of my oral ruling referred to earlier, the Crown indicated that it would not lead evidence containing a reference to matters excluded or associated with matters excluded.
In respect of the DCN, I accept that it was, as a consequence of oversight, not filed within the time required by the rules. Mr Walker, for the prosecution, was properly candid in that respect and submitted that no prejudice arose. He submitted the nature of the evidence proposed to be led indicated the nature of the evidence as uncharged acts of drug trafficking. The Crown contended that evidence was permissible as the accused was in the business of trafficking drugs thereby making it more likely that he committed the charged offence.
Mr Walker informed me that the evidence intended to be led in respect of the particularised discreditable conduct had been disclosed in the ordinary course and was, as detailed above, also the subject of the Rule 49 Application and the objections to evidence raised therein.

The DCN required a consideration of s 34P of the Evidence Act 1924.
While I accept that different principles arise in respect of the DCN and the Rule 49 application, I consider that the Rule 49 indicates that the defence had turned its mind to that evidence. As noted, the terms of the objection in the Rule 49 application was framed first, on the basis of relevance, and second, on the basis the evidence, if relevant, was more prejudicial than probative.
The defendant did not refer to any demonstrable prejudice if I allowed late filing of the DCN. Leave was granted to file the DCN as to the evidence referred to herein.
The uncharged acts referred to in paragraphs 10 to 19 herein were the subject of the DCN. The DCN concerns itself with evidence that the accused in this case has engaged in discreditable conduct, and that evidence taken together, is capable of demonstrating that the accused in the past trafficked drugs. I find that the evidence of the uncharged act does tend to demonstrate that the accused had in the past engaged in trafficking drugs and accordingly s 34P is engaged.[2]
[2] R v Soteriou (2013) 118 SASR 114.
Further, I find that the probative value of the evidence exceeds its prejudicial value. The evidence has a strong probative value in relation to a number of issues at trial, including, the method and manner of communication with Todd Roberts, the relationship with Todd Roberts, and the conduct of drug distribution networks, and whether the accused was trafficking in drugs and the improbability that Todd Roberts obtained drugs from other than the accused.
The evidence is prejudicial but I rule it is admissible because it has a high probative value.
Having determined the relevance of the surveillance, intercepts and items found in searches the subject of the Rule 49 notice, counsel for the defendant asked me, in any event, to exclude certain evidence in exercise of my discretion. Other than as noted herein, I have declined to do so. Calls 9955 to 9963 and call 200450 are excluded on that basis.