R v Lovett
[2012] WASC 511
•28/12/2012
R -v- LOVETT [2012] WASC 511
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 511 | |
| 28/12/2012 | |||
| Case No: | INS:26/2012 | 19 NOVEMBER 2012 | |
| Coram: | EM HEENAN J | 19/11/12 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application to admit evidence refused Application for a separate trial refused | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN BENJAMIN DAVID LOVETT LANCE BARRY PETTER |
Catchwords: | Criminal Procedure Act 2004 (WA) Evidence Co-conspirator's rule Admissibility of out of court statements by a third person implicating one accused No evidence to establish conspiracy or joint unlawful purpose between either accused and the maker of the statement at that time Possible inference that statement may tend to exonerate second accused Maker of statement not to be called Inadmissible Application for separate trial refused |
Legislation: | Nil |
Case References: | Ahern v The Queen [1988] HCA 89; (1988) 165 CLR 87 Ali v The Queen [2005] HCA 8 Baker v The Queen [2012] HCA 27 Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1 R v Masters (1992) 26 NSWLR 450 Russell v The State of Western Australia [2011] WASCA 246 Tsang v Commonwealth Director of Public Prosecutions [2011] VSCA 336; 255 FLR 41 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
BENJAMIN DAVID LOVETT
First Accused
LANCE BARRY PETTER
Second Accused
Catchwords:
Criminal Procedure Act 2004 (WA) - Evidence - Co-conspirator's rule - Admissibility of out of court statements by a third person implicating one accused - No evidence to establish conspiracy or joint unlawful purpose between either accused and the maker of the statement at that time - Possible inference that statement may tend to exonerate second accused - Maker of statement not to be called - Inadmissible - Application for separate trial refused
Legislation:
Nil
(Page 2)
Result:
Application to admit evidence refused
Application for a separate trial refused
Category: B
Representation:
Counsel:
Prosecution : Mr A L Troy
First Accused : Ms L B Black
Second Accused : Mr J R Noble
Solicitors:
Prosecution : Director of Public Prosecutions (Cth)
First Accused : Kate King Legal Pty Ltd
Second Accused : Jeremy Noble
Case(s) referred to in judgment(s):
Ahern v The Queen [1988] HCA 89; (1988) 165 CLR 87
Ali v The Queen [2005] HCA 8
Baker v The Queen [2012] HCA 27
Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1
R v Masters (1992) 26 NSWLR 450
Russell v The State of Western Australia [2011] WASCA 246
Tsang v Commonwealth Director of Public Prosecutions [2011] VSCA 336; 255 FLR 41
(Page 3)
1 EM HEENAN J: Benjamin David Lovett and Lance Barry Petter have been indicted under an amended indictment, charged with offences against s 302.2(1) of the Criminal Code (Cth) and s 400.4(2) of the Criminal Code (Cth). They have previously pleaded not guilty to those charges, and have been brought up today for trial before a jury. However, applications have been made which it has been necessary for me to hear and consider before the empanelment of the jury.
2 Essentially, the charges against the two accused are that they, along with a third person, James Webster, attempted to commit an offence against s 302.2(1) of the Criminal Code in that they attempted to traffic in a substance, the substance being a controlled drug, namely methamphetamine, and the quantity being a commercial quantity, contrary to s 11.1(1) of the Criminal Code (Cth).
3 The second charge against each is that they, along with Webster, were reckless as to the fact that there was a risk that the money or property with which they dealt would become an instrument of crime in relation to a defence that is a Commonwealth indictable offence, and that at the time of dealing the value of the money or property was $100,000 or more.
4 Essentially, as will be realised from those charges, it is alleged that they were in the business of possessing and dealing with a controlled drug or attempting to be in possession or control of a controlled drug. The case against them depends, to a significant extent, upon the evidence of undercover police operatives who posed as persons associated with the drug trade and who had direct or telephone communications with one or more of these three alleged offenders in preparation for a particular transaction.
5 The transaction in question was the delivery and exchange of a backpack alleged to, or believed to, have contained the controlled drug, but in reality having been substituted by some innocuous substance because of the intervention of police officers. That took place, so it is alleged, in a car park on 31 July 2011, and it is alleged that Lovett and Petter were discovered in a vehicle a short time after this alleged transaction with the knapsack containing the substituted substance in the vehicle, and so it is alleged, by extension, in the possession of one or other of them, and that they were acting in conjunction with Webster in what amounted to a conspiracy between the three to become involved in this illegal transaction.
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6 Originally the indictment named Webster as a co-accused but he has since pleaded guilty to the charges and has been dealt with separately. The indictment has been amended, as I have already mentioned, to name Lovett and Petter as the sole accused. But the allegation that they were involved in the criminal enterprise with Webster remains.
7 As a result of a revision of the case for the prosecution following the plea of guilty by Webster, the prosecution has decided that it will not adduce certain evidence at this trial which had previously been contained in the brief. The explanation for why that decision has been taken will emerge from what I say a little later, but essentially it is because as a result of submissions made by counsel for Mr Lovett, the prosecution has concluded that the particular evidence is not admissible against him and for that reason will not be led.
8 This decision has caused disquiet on the part of Mr Petter and his legal representatives because in their assessment this has the potential to deprive them of evidence which may be helpful to Mr Petter's case and, in particular, to diminish his role in any alleged wrongdoing.
9 In order to understand those contentions a little better it is necessary to make reference to the foreshadowed defences of both Lovett and Petter. I stress that these are foreshadowed because naturally the evidence does not emerge in the brief, and no evidence has yet been taken. But the contention apparently by each of Lovett and Petter is that neither was aware that the backpack which was delivered into the car and was found in the car with them shortly afterwards contained, or was intended to contain, the alleged illegal drug or its substitute, or any illegal substance.
10 The position of Mr Petter appears to be that he was ignorant of any wrongdoing and was certainly not aware that the backpack was intended to contain drugs. For this reason Mr Petter, by his counsel, presses that the evidence which the prosecution has decided not to lead against Mr Lovett should nevertheless be led, or that, as a substitute, he should be in a position to cross-examine certain prosecution witnesses to ensure that the evidence emerges. Or as a further alternative, that he should be in a position to adduce that evidence at his trial. It is necessary, therefore, to have some regard to the evidence which is the subject of this application.
11 By a written application dated 19 November 2012, counsel for Mr Petter applies for three orders. First, an order that Mr Petter be permitted to play portions of the 'OBH audio recording of 29 July 2012' which is a reference to a recording in which Webster discusses his
(Page 5)
- brother-in-law referred to in the brief at pages 414 to 415. Secondly, he seeks an order that he be permitted to play the portion of the above recording in which Webster states, 'I'll have a driver with me to take the stuff away, mate', a reference to evidence in the brief at page 402. Thirdly, as an alternative, an order is sought that Mr Petter's counsel be permitted to cross-examine police confirming that Webster had indicated the above.
12 Failing success on any of those three applications, and as a residual application to which I will later refer, Mr Petter applies for an order that he be tried separately from his co-accused, Lovett.
13 Now, the evidence which is the subject of the OBH audio recording is evidence to the effect that Webster, the person who has pleaded guilty, said to the undercover police officers without realising who they were, believing them to be sympathetic to his project, that he had made arrangements for Ben, his brother-in-law, to drive the car and, in the second reference, that he 'would have a driver with me to take the stuff away, mate', again, an identifiable reference to Ben, being Benjamin Lovett, the first-named accused.
14 The significance of the evidence, so it was submitted by counsel for Mr Petter, is that this emphasises the role that Lovett was to play in the unlawful enterprise without in any way identifying Petter or referring to him, directly or indirectly. This, it was further submitted, lays the basis for a contention that Petter was not involved or had a lesser role or was not at that point a participant in any unlawful operation and that on those matters being established or inferred, support is given for Petter's foreshadowed defence that he was not aware that the backpack discovered in the car with him contained or was intended to contain drugs.
15 A further matter which needs to be mentioned is that all the counsel accept, including counsel for the prosecution, that as at 29 July 2011 when this recording was made, there is no admissible evidence to be led to this court which would establish that Lovett or Petter was a member of a conspiracy or unlawful enterprise, so that while this evidence may be incriminating and admissible against Webster, it is not admissible against either Lovett or Petter because there is no independent evidence to establish that, at that time, either was a member of an alleged illegal conspiracy or unlawful enterprise.
16 That is the reason why the prosecution has accepted that the evidence should not be adduced against Lovett. It also provides a reason why it
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- should not be adduced against Petter. The problem from Petter's perspective is that by this evidence not being adduced in any way, it deprives Pettter, so it was submitted, of the opportunity to try and establish that he had no role in the conspiracy at that date, or only a diminished role, and so support his contention that he was not aware that the backpack contained or was intended to contain any illegal contents.
17 Firstly may I say that the contention that this evidence helps to establish the purpose which counsel for Mr Petter advanced seems rather tenuous. But that may be a matter of fact and degree upon which the tribunal of fact could, if it was entitled to do so, make its decision. For the moment, therefore, I will proceed on the basis, which I stress is not one which I fully accept at this point, that this evidence may help to assist Petter in the manner indicated.
18 The question is whether, in those circumstances, the evidence or any of it is admissible in this trial, either if led from the prosecution or emerging by cross-examination of police officers by Petter, or even if it was to be adduced by Petter directly as part of his case.
19 I come, therefore, to the authorities. The first case relied upon by counsel for Mr Petter, Mr Noble, is the decision in Ahern v The Queen [1988] HCA 89; (1988) 165 CLR 87. This was a decision dealing with the admissibility of acts and declarations of alleged co-conspirators, and it dealt with the question of whether evidence coming within the co-conspirator's rule could be alleged or adduced against an accused when there had been no evidence or no sufficient evidence to establish that that particular accused was a member of the unlawful association or conspiracy at the time of those statements. I read now from the headnote of the case:
Where an accused is charged with conspiracy evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will be admissible to prove the participation of the accused in the conspiracy but only where it is established that there was a combination of the type alleged, the acts were done, or the words were uttered by a participant in furtherance of its common purpose, and there is reasonable evidence apart from the acts or words that the accused was also a participant.
20 This is relevant because in the present case there is no such evidence to establish either that either Lovett or Petter was a member of an unlawful conspiracy or combination at the date of the recorded conversation with Webster and, on that basis, the evidence does not come
(Page 7)
- within the co-conspirators rule and would not have been admissible against either Lovett or Petter under that principle.
21 The second case referred to is the decision in the New South Wales Court of Criminal Appeal in R v Masters (1992) 26 NSWLR 450. Again this is a case dealing with the co-conspirators rule including questions of the admissibility of statements before and after recruitment and whether or not the statements would prove participation and whether they were dependent upon reasonable independent evidence of participation. There the court comprised by Hunt CJ at Common Law, Allen and Badgery-Parker JJ decided that statements by existing members of a conspiracy, made before one accused was recruited but from which an inference is available that a conspiracy existed, are admissible against that accused in order to establish the fact of the conspiracy but they are not admissible against him to establish the truth of what was said.
22 That rule would exclude this evidence in the present case because, at the time if Webster's conversation of 29 July 2011, there is no independent evidence to establish that either Lovett or Petter was a member of the alleged conspiracy and there is no suggestion that anyone else was. So that evidence would be admissible only against Webster.
23 Secondly, in Masters it was decided that statements by co-conspirators made in the absence of an accused but in furtherance of the conspiracy are admissible against the accused in order to establish his participation in it. Where it has been established that the conspiracy existed and where there is reasonable evidence independently of those statements of the accused's participation in it, the so-called co-conspirators rule will support the admission of that evidence. This is a direct application of the decision in Ahern. Again, it means that the particular evidence in this case would not be admissible because there has been no independent evidence to show that Petter or Lovett were members of the conspiracy at the time that the conversation with Webster was recorded.
24 I now pass to a recent decision of the High Court of Baker v The Queen [2012] HCA 27. This concerned a question of the admissibility of out of court confessional statements made by one accused which could be regarded as capable to some degree of tending to exonerate another co-accused. It was held that those statements were not admissible. The court decided that assertions which directly or indirectly conveyed that the appellant was not involved in any assault on the deceased before his fall were not against the co-accused's penal interests and there was no reason
(Page 8)
- to suppose that the co-accused apprehended that it was to his prejudice to have made admissions implicating himself alone, meaning that those parts of the statement were not admissible even against him. Further, French CJ and Gummow, Hayne, Crennan, Kiefel and Bell JJ decided that third party confessions did not constitute an exception to the hearsay rule so as to allow evidence in those confessions to be admissible to exonerate a co-accused. The case contains a detailed discussion of why that is so.
25 Baker followed and applied the earlier decision of the High Court in Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1 where it was held that similar statements were inadmissible in exculpation of a co-accused because they were insufficiently reliable and probative of his innocence to satisfy any exception to the hearsay rule even if, which was not decided, such an exception were to be recognised.
26 The case of Baker takes the matter one step further in declining to recognise any such exception. The same principle was referred to by the Court of Appeal of Victoria in the case of Tsang v Commonwealth Director of Public Prosecutions [2011] VSCA 336; 255 FLR 41. The particular passages are to be found well into the judgment at [74] - [75]. I read from those paragraphs. Their Honours said:
However, the statements by Ho (one accused) that Charlie (another accused) would make arrangements, and that Charlie would tell Chan how to 'spend' (or launder) the money were not simply circumstantial evidence from which it could be inferred that Tsang was aware of the contents of the consignment. Rather, they were hearsay assertions from which the Crown sought to have the jury infer that the applicant was knowingly involved in arranging the trafficking of the imported drug. It follows that the evidence could only be admitted under the co-conspirators rule.
27 I agree, with respect, with that conclusion. What follows in [75] is what is crucial to the present case and which is in conformity with the decisions which I have already cited. Their Honours said:
Before such evidence could be admitted, the judge had to be satisfied that there was reasonable evidence capable of supporting a finding by a jury of an agreement between a finding by a jury of an agreement between Ho, Tsang and Chan of the kind alleged (that is, an agreement to traffic in the imported ecstasy), that the statements made were in furtherance of that common purpose and that the accused was a participant.
28 That is a direct application of the rule in Ahern and in Masters and, as I have already said, that evidence is absent here.
(Page 9)
29 That being the case, I am satisfied that the evidence proposed is not admissible in the present proceedings either by the prosecution or by Lovett or by Petter. It follows that the application that Petter be permitted to play portions of the OBH audio containing the passages to which reference has already been made from the discussion with Webster of 29 July 2012 cannot be permitted. To do so would be to introduce impermissible hearsay evidence.
30 This conclusion was challenged by counsel for Mr Petter. The authorities which I have explained were sought to be distinguished on the basis that the evidence tended to identify the nature and scope of the alleged conspiracy or unlawful enterprise and so by implication to identify who were or who were intended to be participants in it. But the problem with that submission is the same as with the issues which I have already been discussing. It would, if accepted, allow the evidence of a witness who is not giving evidence in court to be brought in by hearsay to implicate, or exonerate, others at a time when the others are not shown to be members of the alleged conspiracy and therefore not within the co-conspirator's rule.
31 It would be, as was the evidence in Baker, to allow an unjustified exception to the hearsay rule and for that reason the submission must be rejected. I hasten to add that these rulings are made at the commencement of a trial on the basis of a foreshadowed course of evidence to be led by the prosecution. If Webster were to be called for the prosecution and/or for either accused, circumstances may change and it may be possible for him to be asked in evidence-in-chief or in cross-examination, 'Who were members of the alleged conspiracy and at what times?' but that is not presently proposed.
32 Similarly, if one accused were to give evidence on his own behalf and to be cross-examined, it is possible that he may be asked questions about who were members of the conspiracy and at what time. I do not intend this ruling to apply to circumstances which might arise in those exigencies. Nor do I wish to imply that if any of these things were to happen, this evidence would necessarily be admissible. One would have to consider the question in the light of the factual issues as they stood at that point of the trial before making any final decision in that regard. But it may be necessary to re-examine the question if either of those contingencies were to occur. The contingencies I have in mind are if Webster were called to give evidence by any party or if Lovett or Petter themselves gave evidence. There is, of course, no obligation on either of the accused to do so.
(Page 10)
33 This means that I refuse the application brought by counsel for Mr Petter dated 19 November.
34 There is, as I have already mentioned, a supplementary application that, pursuant to s 133(4) of the Criminal Procedure Act, Petter be granted a separate trial because, so it was submitted, he would suffer prejudice by being unable to adduce or rely upon the evidence which I have been describing in the present trial.
35 As to that, I can only say that I am not in the least persuaded that the position would be any different if Petter were to be tried alone. The principles and authorities which I have been examining indicate, at least in my view, that even if he were being tried alone Petter would not be permitted to adduce this evidence for the very same reasons.
36 As to whether or not there should be a separate trial under s 133 of the Criminal Procedure Act, I have been referred to the principles discussed by the Court of Appeal recently in the case of Russell v The State of Western Australia [2011] WASCA 246. In that case, Buss JA at [304] - [334] undertook a very detailed examination of the principles applicable to the power to grant separate trials on indictment - on criminal charges both at common law and independently of s 133 of the Criminal Procedure Act. At [304] his Honour said:
Before the enactment of s 133 of the Criminal Procedure Act, the principles governing the determination of an application for separate trials, where two or more accused were charged with committing an offence jointly, were reasonably well-established. The overriding question was whether separate trials were required to ensure that both or all of the accused received a fair trial. The determination of that question involved a consideration of the interests of the accused and the public interest.
37 Then at [307] his Honour referred to observations of Callinan and Heydon JJ in the case of Ali v The Queen [2005] HCA 8 where their Honours said of the particular case:
Any application for a separate trial would have been doomed to failure. Section 597B of the Criminal Code of Queensland confers a discretion on the trial judge at any time the trial of two or more persons -
- as here -
charged on the same indictment that the persons charged be tried separately.
(Page 11)
38 Their Honours then went on to examine the particular features of that charge involving alleged joint complicity in a particularly nasty murder, before going on to say that:
A joint trial of the appellant and the co--accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged.
39 Then his Honour Buss JA examined the authorities and, in particular, the requirements of s 133(4) of the Criminal Procedure Actand [335] - [350] of Russell and said, at [339], that:
The true principles of relevance in relation to the grant of separate trials was set out in the joint judgment in R v Darby [1982] HCA 32 that (a) a court would order separate trials if it was satisfied that that in the circumstances the risk of prejudice to an accused from a joint trial could not adequately be neutralised by a direction to the jury so as to ensure a fair trial and (b) if, however, the court was satisfied that any risk of prejudice could be neutralised by an appropriate direction so as to ensure a fair trial, it would not ordinarily order separate trials.
40 At [343] and [344] his Honour explained how those principles should be adopted and applied under s 133. I should add that in Russell convictions were quashed because it was considered that prejudice emerging from the conduct of a joint trial in that particular instance had not been averted by directions given by the trial judge and that there ought to have been separate trials. As a consequence, new trials were ordered.
41 In the present case, none of those issues, effectively, arises because I am satisfied that there is no prejudice, in the requisite sense, which might be suffered by Mr Petter in proceeding with the joint trial. This is because the evidence which he seeks to have adduced is, I am satisfied, inadmissible, whether at a joint trial or at a single trial.
42 No question of balance, therefore, arises in the present circumstances and the application for a separate trial will be refused, and I have already refused the applications for the orders concerning the ability to adduce evidence from the intercepted discussions with Webster of 29 July, whether directly or by cross-examination.
43 That brings us to the point where I think we can proceed.
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