R v Marshall

[2020] QSC 400

SUPREME COURT OF QUEENSLAND

CITATION:

R v Marshall [2020] QSC 400

PARTIES:

THE QUEEN

(respondent)
v
TODD DAVID MARSHALL
(applicant)

FILE NO/S:

Indictment 470 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application filed on 23 June 2020

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2020

JUDGE:

Burns J

RULING:

The Crown shall not lead evidence of the conversations numbered 46, 59, 68, 69, 71, 126, 139, 143, 145, 146, 157,

167, 170, 203, 204, 211, 235, 261, 271, 275, 280 and 289 in
Exhibit 4 at the trial.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO   ADMIT   OR   EXCLUDE   EVIDENCE   –   where the

applicant is charged on indictment with one count of trafficking in dangerous drugs – where the main source of evidence making up the Crown case is comprised of intercepted telephone communications between the applicant and another man – where the Crown allege that the other man was also engaged in trafficking in dangerous drugs – where the Crown seek to rely on evidence of intercepted telephone conversations between that other man and various customers of, and suppliers to, that man – whether such evidence is admissible at the trial of the applicant – whether the probative value of such evidence is outweighed by its prejudicial  effect

– whether such evidence should be excluded in the exercise of the court’s discretion

Criminal Code Act 1899 (Qld), s 590AA

Evidence Act 1977 (Qld), s 130

Le Cornu v Thomas (DEWNR) [2019] SASCFC 154, cited

R v Christie [1914] AC 545, cited
Tsang v R (2011) 35 VR 240, cited

Walton v R (1989) 166 CLR 283, cited

COUNSEL:

S R Lewis for the applicant

S L Dennis for the respondent

SOLICITORS:

Guest Lawyers for the applicant

Office of the Director of Public Prosecutions (Qld) for the respondent

1. The applicant is charged on indictment with one count of trafficking in methylamphetamine between 9 March 2018 and 10 July 2018 at Currimundi or elsewhere in the State of Queensland. He has brought application pursuant to s 590AA of the Criminal Code (Qld) for a ruling to exclude various intercepted telephone communications from the evidence at his trial.

1. No witnesses were called to give evidence on the application, and nor was any affidavit material relied on. Instead, the parties were agreed that the application should be decided on the basis of a written statement prepared by a police officer attached to the Drug Task Force, Detective Sergeant Andrew Linton, (exhibit 1), a draft Statement of Facts outlining the Crown case (exhibit 2), a synopsis of various telephone conversations between the applicant and a man by the name of Joshua Cowan (exhibit 3) and a summary of what is described as telephone intercept material (exhibit 4).

The Crown case

1. I proceed on the assumption that the evidence comprising the Crown case is, for the purposes of this application, capable of supporting the allegations set out in the draft Statement of Facts. They may be summarised, so far as is necessary to dispose of this application, as follows.

1. In 2017, police commenced an operation targeting the sale of dangerous drugs. During the operation, they learned of the existence of a syndicate headed up by Cowan and based in the north of Brisbane. It was a significant drug trafficking enterprise. Cowan’s telephone communications were intercepted and, through this, the applicant was identified as a person who was also trafficking in dangerous drugs.

1. It is alleged that the applicant trafficked over a four month period from 9 March 2018 to 10 July 2018 and, to that end, purchased methylamphetamine from Cowan on at least seven occasions but, on two occasions, he supplied drugs to Cowan. Despite these associations, however, the Crown case is that the applicant was at all times “a principal in his own trafficking business”. To the point, I am asked to accept for the purposes of this application that the drug trafficking business conducted by the applicant was “separate and independent” from that conducted by Cowan.

1. The court was informed on the hearing of the application that the various telephone conversations between the applicant and Cowan, a synopsis for each of which appears in exhibit 3, constitutes the main source of evidence in support of the Crown case. Those conversations commenced on 10 March 2018 and ended on 9 July 2018. The Crown allege that, during many if not all of these conversations, the applicant and Cowan spoke in code. In particular, the Crown contends that the use of the words “elbow” and “angle” were understood by both men to mean quantities of

methylamphetamine and that the use of the word “bugsy” was a shortened form of the rhyming slang “bugs bunny”, and was understood by both men to mean money.

1. Detective Sergeant Linton is an experienced police officer who, for the past 13 years, has participated as a detective in a number of joint-agency investigations (including the performance of duties as the case officer in multi-disciplinary investigative teams) for protracted covert and overt controlled drug operations. The Crown intends to call DS Linton to give evidence at the trial in accordance with his statement (exhibit 1). Amongst other things, it is expected that he will say that it is common for persons involved in unlawful drug activity to communicate with each other in code to reduce the risk of detection. He will say that he has listened to the telephone conversations between the applicant and Cowan on which the Crown rely, as well as several others between Cowan and third persons. He has formed an opinion as to the meaning of the code words used in several of these conversations and his opinions support the Crown contentions in those respects.

The challenged evidence

1. The evidence under challenge is a series of telephone conversations between Cowan and persons other than the applicant commencing on 5 March 2018 and ending on 2 October 2018. These conversations are highlighted in yellow, and summarised, in exhibit 4. Each conversation is numbered individually and most are ascribed an intercept “session” identifier.

Should the challenged conversations be excluded?

1. As a general proposition only, evidence of a statement made by a person (who is not a witness in the proceeding) in the absence of an accused will be inadmissible, at least to the extent that the evidence is relied on to directly prove the truth of the facts asserted: Walton v R (1989) 166 CLR 283, 288. As such, evidence of a statement made by a co-accused in the absence of the accused will not ordinarily be received in evidence. However, there are at least three well-recognised exceptions to the general rule because evidence of that type may be admitted: (1) as original evidence; (2) under the co-conspirators’ rule; or (3) as circumstantial evidence relevant to the prosecution or defence case: Tsang v R (2011) 35 VR 240, [35] – [38]; Le Cornu v Thomas (DEWNR) [2019] SASCFC 154, [16].

1. Here, the Crown relies on the last of these three exceptions; the evidence under challenge is sought to be led as circumstantial evidence to assist in the proof of the meaning of the code words used by the applicant and Cowan. The submission was also made that the Crown will seek to rely on the evidence as circumstantial evidence that Cowan was a drug dealer, the argument being that the applicant was more likely to have been speaking to Cowan about drugs if it is demonstrated that the latter was actively involved in carrying on that business at those times.

1. If I am persuaded that the evidence is admissible, there is a further question to be considered and that is this: should the evidence (or some of it) be excluded in the exercise of the court’s discretion because its admission would be unfair to the accused (Evidence Act 1977 Qld, s 130) in the sense that its prejudicial effect would outweigh its probative value: R v Christie [1914] AC 545.

1. As a preliminary observation, it was submitted on behalf of the applicant that it will be “unnecessary” for the Crown to rely on the challenged evidence to give meaning to the code words used in the conversations between the applicant and Cowan because of the opinions SC Linton will express. Another way of putting that submission would be to say that the Crown already has evidence on the point. Such a submission is not at all attractive. If the challenged evidence is admissible and not excluded in the exercise of the court’s discretion, then the Crown are perfectly entitled to lead it.

1. That made clear, the first point to make is that, despite what was submitted during the course of the hearing (T. 1–9), not all of the conversations highlighted in exhibit 4 can really be under challenge because at least four of those conversations were between the applicant and Cowan (Nos 22 [10/03/18], 165 [26/05/18], 171 [29 May 2018] and 178 [21/06/18]). Not surprisingly, each of these conversations also appears in exhibit 3 (Slinky 0 1573, Trixie 1 2868, Trixie 1 3550 and Trixie 2 15). Each is admissible against the applicant and there is no proper basis on which the court’s discretion to exclude that evidence can be said to arise.

1. Second, not all of the challenged conversations go to the circumstantial proof of the meaning of code words. A series of telephone calls involving Cowan and others on 29 May and 3 June 2018 (No 171 [Trixie_1 3514, 3533, 3548, 350, 3620, 4089 and 4207]) are relied on as circumstantial evidence giving meaning and context to telephone conversations between the applicant and Cowan on 29 May which are summarised in exhibit 3 (Trixie 1 3405 and Trixie 1 3550) and perhaps also to a telephone conversation between the two men on 31 May 2018 (Trixie 1 3800). On the hearing of the application, counsel for the applicant rightly conceded that these conversations are admissible and it was not suggested that the court’s discretion should be invoked to exclude them.

1. Third, the conversations numbered 46 and 170 do not assist in proof of the true meaning of “bugsy”, “angle” or “elbow”. If they are admissible, that can only be on the basis that they go to prove circumstances to support an inference that Cowan was himself engaged in trafficking in dangerous drugs.

1. Fourth, each of the remaining conversations was submitted to be admissible because they constitute circumstantial evidence going to the proof of the meaning of code words used in the conversations between the applicant and Cowan. For the Crown it was submitted that, when Cowan used the same code words in conversation with others, he “unwittingly” revealed what they mean. It was also submitted, as I have already observed, that they go to prove that Cowan was a drug dealer.

1. In my view, each of these remaining conversations is admissible because they are capable of supporting, in a circumstantial way, the drawing of inferences by the jury as to the meaning of the code words used in the conversations between the applicant and Cowan. They may also be admissible to prove facts on which the jury may infer that the applicant was in discussions with someone who was a drug dealer, but it is unnecessary to decide whether that is so. The critical question, though, is whether the court should exercise its discretion to exclude the conversations.

1. In that regard, the applicant submitted that the probative value of the conversations will be outweighed by their likely prejudicial effect. This is because, it was argued, admission of the conversations would place a body of material before the jury on which they may very well conclude that Cowan was a significant drug trafficker who

was dealing with a range of different people in the illicit drug trade. If that conclusion is drawn, then there would be a real risk that the jury might also speculate that the applicant was, through his association with Cowan, also a drug dealer, and a significant one at that. The Crown, on the other hand, submitted that any such risk could be satisfactorily addressed by the giving of directions to the jury not to reason in such an impermissible way.

1. I have considered the remaining conversations. Having done so, I have reached the following conclusions:

   (a)The Crown ought not be deprived of recourse to this evidence merely because the applicant has identified a risk of misuse by the jury. Directions can, and will, address that risk but that is not to say that all such conversations should be permitted to be placed before the jury. This is for the reason that, once some conversations are led to give meaning to the code words used by the applicant and Cowan, the addition of further conversations will not add a great deal to the proof of that issue. They will, however, increase the risk of misuse. In this way the addition of more conversations than are strictly necessary to meet the Crown’s purpose will have decreasing probative value but increasing prejudicial effect. The court’s discretion must be exercised in the light of that understanding;

   (b)Working backwards, the conversations numbered 211 [11/07/18], 235 [07/08/18], 261 [08/09/18], 271 [21/09/18], 275 [23/09/18], 280 [24/09/18] and 289 [29/09/18] occurred after the trafficking period charged on the indictment. Quite apart from anything else, their probative value is only slight when compared to their potential prejudicial effect. They will be excluded in the exercise of the court’s discretion;

   (c)As earlier stated, the conversations numbered 46 and 170 do not assist in proof of the true meaning of “bugsy”, “angle” or “elbow”. To the extent that they might be admissible to prove that the applicant was in discussions with someone (Cowan) who was a drug dealer, there is ample evidence to support the drawing of such an inference from the conversations comprising exhibit 3 and the conversations I decline to exclude immediately below;

   (d)There are a number of conversations early in the trafficking period where the code words in question are used by Cowan in conversations with persons by the name of Hamilton, Mitchell, Koeford and Atkinson. They took place on 10, 14 and 15 March 2018 and are numbered 18, 36, 37, 38, 39 and 41. They go to the proof of the true meaning of the words, “bugsy” and “angle”. They will not be excluded;

   (e) The conversations numbered 59, 68, 69, 71, 126, 139, 143, 145, 146, 157, 167,

   203 and 204 add little in aid of the Crown’s purpose (assuming the conversations allowed immediately above are led) and will be excluded in the exercise of the court’s discretion because of their relative prejudicial effect.

1. For completeness, I could not find any reference to the word “elbow” in any of the challenged conversations within the trafficking period.

Ruling

1. The Crown shall not lead evidence of the conversations numbered 46, 59, 68, 69, 71, 126, 139, 143, 145, 146, 157, 167, 170, 203, 204, 211, 235, 261, 271, 275, 280 and 289 in exhibit 4 at the trial of the applicant.