R v Pinkstone
[2001] WASC 137
•1 JUNE 2001
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| CITATION | : | R -v- PINKSTONE & ORS [2001] WASC 137 |
| CORAM | : ROBERTS-SMITH J | ||
| HEARD | : 4 MAY 2001 | ||
| DELIVERED | : 1 JUNE 2001 | ||
| FILE NO/S |
| ||
| BETWEEN | : THE QUEEN |
AND
ANTHONY JOHN PINKSTONE
WAYNE JOHN YANKO
MICHAEL BRAZIERPAUL PHILLIP BRAZIER
Catchwords:
Criminal law - Indictment - Multiple charges - Applications for severance -
Principles
Criminal law - Drug offences - Joint trial of four accused - Applications for separate trials - Relevant principles
Legislation:
Criminal Code (WA), s 585, s 586(7), s 587, s 624
Result:
Applications refused
[2001] WASC 137
Representation:
Counsel:
| Crown | : | Ms G A Archer |
| First-named accused | : | In person |
| Second-named accused : | Mr O P Holdenson QC | |
| Third-named accused | : | Mr A Palumbo |
| Fourth-named accused : | Mr A Palumbo |
Solicitors:
| Crown | : | State Director of Public Prosecutions |
| First-named accused | : | In person |
| Second-named accused : | Amidzic & Co | |
| Third-named accused | : | Laurie Levy |
Fourth-named accused : A Palumbo
Case(s) referred to in judgment(s):
Atholwood v The Queen [2000] WASCA 76
Baartman, unreported; CCA SCt of NSW; No 60499 of 1994; 6 October 1994
Beck & Smith v The Queen [1984] WAR 127
De Jesus (1986) 61 ALJR 1
DPP v Merriman (1972) 56 Cr App R 766
Evans v The Queen [1999] WASCA 252
Fernando [1999] NSWCA 66
Georgiou [1999] NSWCA 125
Leaman (1987) 28 A Crim 104
Ludlow v Metropolitan Police Commissioner (1971) 54 Cr App R 233
Patsalis & Spathis (1999) 107 A Crim R 432
R v Barrell and Wilson (1979) 69 Cr App R 250
R v Connell, Lucas & Carter (No 1) (1992) 8 WAR 518
R v Darby (1981-82) 148 CLR 668
R v Grondkowski & Malinowski [1946] 1 KB 369
R v Harbach (1973) 6 SASR 427
R v Middis & Ors, unreported; SCt of NSW; 27 March 1991
R v Piller, Kramer & Edwards (1995) 86 A Crim R 249
R v Potter and McKenzie [1959] Qd R 378
Subramaniam v The Public Prosecutor [1956] 1 WLR 965
Sultana (1994) 74 A Crim R 27
[2001] WASC 137
Case(s) also cited:
Alexander v The Queen (1981) 145 CLR 395
Bannon v The Queen (1995) 185 CLR 1
Crawford (1989) 2 Qd R 443
Pfennig v The Queen (1994-5) 182 CLR 461
R v Berghella, unreported; CCA SCt of WA; Library No 940313; 3 June 1994
R v Dawson (1990) 47 A Crim R 458
R v Demirok [1976] VR 244
R v Holden, unreported; CCA SCt of SA; 259 of 1990; 18 December 1990
R v Kray [1970] 1 QB 125
R v Merritt (1985) 19 A Crim R 360
R v Oliver (1984) 57 ALR 543
R v Prashar (1988) 37 A Crim R 70
Rintel v The Queen [1986] WAR 175
Verma (1987) 30 A Crim R 441
[2001] WASC 137
ROBERTS-SMITH J
ROBERTS-SMITH J: The four accused men are charged jointly on an indictment dated 17 January 2001. The indictment contains four counts:
(1) On 7 October 1999 at Perth Airport ANTHONY JOHN PINKSTONE supplied a prohibited drug, namely methylamphetamine, to another. (Contrary to s 6(1)(c) Misuse of Drugs Act 1981 (WA)). (2) AND FURTHER that on the same date and at the same place, WAYNE JOHN YANKO had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. (Contrary to s 6(1)(a) Misuse of Drugs Act). (3) AND FURTHER that on the same date and at the same place, ANTHONY JOHN PINKSTONE attempted to supply a prohibited drug, namely cocaine, to another. (Contrary to s 6(1)(c) and s 33 Misuse of Drugs Act). (4) AND FURTHER that on the same date and at the same place, MICHAEL BRAZIER and PAUL PHILLIP BRAZIER attempted to possess a prohibited drug, namely cocaine, with intent to sell or supply it to another. (Contrary to s 6(1)(a) and s 33 Misuse of Drugs Act).
This is my ruling on applications by the three accused other than Anthony John Pinkstone ("Pinkstone") for severance and separate trials. To put the applications in perspective, it is necessary to say something about the history of the matter.
On 20 November 2000, Pinkstone and Wayne John Yanko ("Yanko") were committed for trial following a preliminary hearing. Pinkstone was committed on a charge that on 7 October 1999 at Perth Domestic Airport he supplied to another a prohibited drug, namely methylamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act. Yanko was committed on a charge that on 7 October 1999 at Perth Domestic Airport he had a prohibited drug, namely methylamphetamine, in his possession with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act.
On 1 December 2000, Pinkstone and Michael Brazier ("M Brazier") and Paul Phillip Brazier ("P Brazier") were committed for trial following a preliminary hearing. M Brazier and P Brazier were committed on a charge that on 7 October 1999 at Perth Airport they attempted to possess cocaine with intent to sell or supply it to another contrary to s 33(1) and s 6(1)(a) of the Misuse of Drugs Act. A charge against Pinkstone that on
[2001] WASC 137
ROBERTS-SMITH J
7 October at Perth Airport he supplied to another a prohibited drug, namely cocaine, contrary to s 6(1)(c) of the Misuse of Drugs Act was dismissed but he was committed on a charge of attempting to supply cocaine. A charge that between 17 September and 7 October 1999 Pinkstone and M Brazier conspired with one another to possess cocaine with intent to sell or supply was dismissed, the prosecution not having sought to pursue it.
In very broad terms the prosecution case will be that Pinkstone, Yanko and M Brazier were the subject of surveillance operations run by the Western Australian Police Organised Crime Squad in 1999. On 7 October that year, Pinkstone went to the Ansett Air Cargo depot at Sydney airport and consigned two parcels to Perth. Each parcel contained a small digitally-coded safe which in turn contained a packet of prohibited drugs. The consignment notice in relation to one of them recorded the consignor as an A Freeman from Commercial Security Ltd, High Street, Randwick in New South Wales. The Crown evidence will be that is an alias commonly used by Pinkstone. The consignee was shown as "One on One Security: Attention John White". A mobile telephone number was given. That mobile telephone number is one used by Yanko. The other parcel was consigned to "Innaloo Plasterers and Security".
The Ansett employee in Sydney who received the consignment for shipment to Perth was a Mr O'Brien who will give evidence that the person who gave him the parcels was Pinkstone.
When the parcels arrived in Perth they were examined by waiting police officers, marked in a particular way and then kept under surveillance.
It is the Crown case that in due course Yanko arrived at the Perth Domestic Airport terminal and collected the parcel that had been consigned to One on One Security. He filled in a receipt in the name of John White and took the parcel to his car and drove off. He was under surveillance by police and was seen to go to an address at 47 Salisbury Street. He later left those premises and was arrested at a Shell Service Station in Applecross.
When the police searched 47 Salisbury Street they found the consignment in a rear shed. The consignment was still intact, it was still packaged and still bore the markings police had made on it at the airport. On further examination it was found to contain 725 grams of methylamphetamine of over 50 per cent purity.
[2001] WASC 137
ROBERTS-SMITH J
Pinkstone had consigned both parcels about 12.30 pm on 7 October 1999 in Sydney. They were airfreighted on an Ansett flight to arrive in Perth at 9.20 pm Perth time. Yanko collected the parcel containing the methylamphetamine about 10.05 pm on 7 October 1999.
The second parcel, which was consigned to Innaloo Plasterers, contained cocaine. The Crown case will be that M Brazier arranged for his brother P Brazier to collect it from Ansett Air Cargo in Perth and that P Brazier attended there about 9.20 pm Perth time and attempted to claim the parcel. On being told that it was not yet available for collection, he had a further telephone conversation with his brother. He then re-attended the Ansett Air Cargo office in Perth and was told the parcel still was not available from the aircraft. After some further telephone conversations with his brother he returned home.
In addition to evidence of police observations of these events, there is to be led extensive evidence of telephone intercepts from various telephones of Pinkstone, Yanko and M Brazier. Some of the conversations were between Pinkstone and Yanko; some were between Pinkstone and M Brazier and others were between M Brazier and P Brazier.
Yanko's application by notice of motion dated 23 April 2001 is for an order that count 2 on the indictment be severed from and tried separately from the remaining counts pursuant to s 585 and/or s 264 (sic: presumably s 624) of the Criminal Code.
There is no written application by M Brazier, but submissions dated 20 April 2001 were filed by Mr Levy on his behalf and Mr Palumbo made further oral submissions before me on 4 May 2001. Apart from his application for a separate trial, M Brazier also applied to have certain evidence of Detective Kanawati excluded from the trial. The contention in relation to the latter was that during the course of the preliminary hearing Detective Kanawati gave evidence that P Brazier had attended the Perth Domestic Airport on 7 October 1999 and made enquiries about the parcel said to contain the cocaine. During the course of cross-examination by Mr Palumbo on behalf of Mr P Brazier, Detective Kanawati stated that he had never seen a photograph of P Brazier prior to or after 7 October 1999 and that he did not know the person who had attended the counter to obtain the package. It was submitted that there is no other evidence that Detective Kanawati ever viewed a photoboard or a police line-up in order to positively identify P Brazier and that without such evidence neither he, nor any other witness, can state that it was
[2001] WASC 137
ROBERTS-SMITH J
P Brazier who attended at the Perth Airport and enquired about the package that night.
At the hearing on 4 May, Ms Archer who represented the Crown, pointed out that neither in his statement nor in his examination-in-chief at the preliminary hearing, had Detective Kanawati ever purported to identify P Brazier as the person he saw at the Perth Domestic Airport terminal on 7 October 1999 and that the Crown does not intend to lead evidence at the trial that he did so identify him. That matter therefore falls away.
The third application is that of P Brazier, made by notice of motion dated and filed 23 April 2001. The orders there sought are that the applicant be severed (sic) from the indictment and stand trial alone on the single count of attempting to possess cocaine and that it be remitted to the District Court at Perth for a plea.
The submissions as developed by Mr Holdenson QC on behalf of Yanko (and adopted by Mr Palumbo as counsel for both M Brazier and P Brazier) were in substance that:
1. The charges are improperly joined; 2. Even if properly joined, they should be severed; 3. As a matter of discretion I should order separate trials because of the risk of improper prejudice to the particular applicant.
As the factual situation of each applicant is different, the precise bases of their applications differ. I will deal with them separately below, but it is first appropriate to consider the general principles regarding the joinder of accused and joinder of charges on one indictment.
It is convenient to examine the general principles in the context of Yanko's application.
The submissions made on behalf of Yanko further elaborate on the Crown case. It is said that at approximately 9.20 pm on 7 October 1999 P Brazier attended the Ansett Australia terminal at Perth Airport to take possession of the first digital safe. He was informed the plane had not yet arrived. He returned at approximately 9.40 pm, but upon being told that the cargo was being unloaded, said he would return in the morning. During this time telephone calls between P Brazier and M Brazier were being monitored by the police. They reveal that P Brazier was nervous about collecting the item because of the presence of police at the airport. They also reveal that M Brazier was aware of the contents of the package
[2001] WASC 137
ROBERTS-SMITH J
which he described to P Brazier as "Charlie" (TI 7/10/99 at 9.25 pm). At 10.05 pm on 7 October 1999 Yanko attended the Ansett Australia cargo terminal at Perth Airport to collect the second digital safe which was addressed to John White. At the counter he produced a piece of paper with the words "One on One Security" and the consignment number. On collecting the item Yanko signed for it in the name "John White" and left the terminal with the cargo. He took the parcel to a house at 47 Salisbury Street, Como where it was placed near the garage. He was arrested a short time later and charged with being in possession of a prohibited drug with intent or supply. Between 7 and 13 October 1999 telephone services used by Pinkstone, M Brazier and P Brazier were monitored by the police. On 13 October, Pinkstone (who was then in Perth) and M Brazier were arrested. P Brazier was arrested on 19 October 1999.
It is submitted that there is no evidence of any connection between Yanko and either P Brazier or M Brazier that is relevant to the case against Yanko, nor any evidence that Yanko had any knowledge of or connection with the forwarding and collection of the digital safe containing cocaine.
It is submitted that the fact Yanko attended Perth Airport and collected the parcel containing the second digital safe will not be in issue at the trial; what will be in issue is whether at the relevant time he was "lawfully in possession of both the safe and its contents and in particular whether at the relevant time he had the necessary mens rea".
In the written outline of submissions filed on Yanko's behalf by Mr Shirrefs dated 23 April 2001 the submissions in relation to joinder are that s 585 of the Criminal Code permits joinder of offences provided they form or are a part of a series of offences of the same or a similar character, in which case they may be joined in the same indictment against the same person. Pursuant to s 585 the only counts that are properly joined in the present indictment are the two counts against Pinkstone. The joinder of the single count against Yanko in an indictment containing similar but (as against Yanko) unrelated offences against other accused is not permitted by s 585 and the count should be severed.
In his oral submissions on behalf of Yanko, Mr Holdenson put it somewhat differently: for the purposes of this application only, he conceded that counts 1 and 3 are properly joined, both being counts against Pinkstone, and that counts 3 and 4 are also properly joined. His submission was that count 2 was not properly joined on this indictment with those other counts.
[2001] WASC 137
ROBERTS-SMITH J
In her submissions Ms Archer contended that counts 1 and 2 were properly joined pursuant to s 586(7) of the Criminal Code, because they arise out of the same or closely related facts, as are counts 3 and 4 for the same reason. She argued that M Brazier and P Brazier are properly joined in count 4 pursuant to s 586(7) and 587 of the Code. The Crown contends the fact that other counts on the indictment relate to persons other than the accused under consideration does not make the joinder unlawful.
Joinder of charges
The starting point is s 585 of the Criminal Code which authorises the joinder of offences charged against the same person:
"Except as hereinafter stated, an indictment must charge one
offence only, and not 2 or more offences:Provided that when several distinct indictable offences form or are a part of a series of offences of the same or a similar character or when several distinct indictable offences are alleged to be constituted by the same acts or omissions, or by a series of acts done or omitted to be done in the prosecution of a single purpose, charges of such distinct offences may be joined in the same indictment against the same person.
…
But, if in any such case it appears to the court that the accused person is likely to be prejudiced by such joinder, the court may require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately."
As I have observed, Mr Shirrefs' outline of submissions on behalf of Yanko argues that the only counts properly joined on the indictment are counts 1 and 2, namely the two counts against Pinkstone, in that they "form a series of identical offences against the same person". (Outline [17]). Whilst I accept the conclusion that the two counts against Pinkstone are properly joined, it is not for that reason but because they form a series of offences of a similar character. On the prosecution case both counts relate to the supply (or attempted supply) of a prohibited drug to another, the drugs were consigned by Pinkstone from Sydney Airport at the same time on the same day, they were both consigned to addressees in
[2001] WASC 137
ROBERTS-SMITH J
Perth, the parcels each contained the same type of digitally coded safe, the drugs were contained in packages in the safes, and there will be other evidence relating to Pinkstone confirming his awareness of and involvement in the supply of those drugs to the intended recipients in Perth. To use the language of Brinsden and Smith JJ in Beck & Smith v The Queen [1984] WAR 127, there was a clear temporal and factual nexus between them.
So far as count 4 is concerned, I cannot accept the Crown submission with respect to s 587 of the Criminal Code. That section provides that:
"A person who counsels or procures another person to commit an offence, or who aids another person in committing an offence, or who becomes an accessory after the fact to an offence, may be charged in the same indictment with the principal offender, and may be tried with him or separately, or may be indicted and tried separately, whether the principal offender has or has not been convicted, or is or is not amenable to justice."
In its terms that section authorises the joinder of charges on the same indictment against a principal offender and an accessory - it does not authorise the joinder of the principal and accessory in the same charge. However, that result is achieved by virtue of the operation of s 7 which enables both to be charged in one count as joint offenders.
Joinder of charges
The relevant provision is s 586(7) of the Criminal Code. That
provides that:
"(7) Any number of persons charged with committing different or separate offences may be charged in the same indictment and tried together if the offences arise substantially out of the same or closely related facts."
Mr Holdenson's argument to s 586(7) does not authorise the joinder of counts 1 and 2 turned on the construction of that subsection in light of the definition of "offence" in s 2 of the Criminal Code. That section states that:
"An act or omission which renders the person doing the act or
making the omission liable to punishment is called an offence".
[2001] WASC 137
ROBERTS-SMITH J
Mr Holdenson argues that in order to permit the joinder of counts 2 and 4 the Crown must demonstrate that the possession of the parcel by Yanko arises substantially out of the same or closely related facts to the attempt by P Brazier and M Brazier to obtain possession of a different parcel. He argues that applying the definition of "offence" to the text of s 586(7) demonstrates that the acts of Yanko in relation to his attendance and conduct at the airport and subsequent disposition of his package on the one hand and the directions given by M Brazier to his brother and the brother's subsequent attendance at the airport on the other, must be the "same or closely related facts" to which the subsection is directed - and the Crown cannot satisfy that requirement. He referred to the cross-examination of Detective Tuttle on the preliminary hearing eliciting evidence to the effect that Pinkstone, Yanko and M Brazier were the primary targets of the police operation. Tuttle was asked whether he had established during the course of his enquiries any linkages or contact between M Brazier and Yanko - which he answered in the negative - and whether he had established any contact between P Brazier and Yanko - which he again answered in the negative. Tuttle agreed that he never had evidence of Yanko going to the Braziers' place of business nor either of the Braziers going to Yanko's home address. He was then asked whether it was his view that the Brazier/Pinkstone connection was totally separate from the Pinkstone/Yanko connection to which he replied (T 99):
"… too (sic: two) different operations, I would say".
This founded the submission by Mr Holdenson that on the evidence there were on the night of 7 October 1999, two separate or discrete attendances by two different persons at the airport seeking two different items, each person doing so totally independently of the other and Yanko having no knowledge of the attendance of any person at the airport that night for any other purpose. There were, he said, two different, discrete and independent operations. On that basis the argument was put, it could not be said counts 2 and 4 arise substantially out of the same or closely related facts.
For the purposes of the analysis urged by Mr Holdenson it is helpful to recast s 586(7) incorporating the definition of "offence" in s 2. Subsection 7 could thus be recast:
"Persons charged with doing different or separate acts rendering them liable to punishment may be charged in the same indictment and tried together if the acts so rendering them liable
[2001] WASC 137
ROBERTS-SMITH J
to punishment arise substantially out of the same or closely
related facts."
It is not the acts of each accused which must be the same or closely related - rather, those acts must arise out of facts which are substantially the same or closely related. The Crown case here is that the acts of Yanko and the Braziers arose out of the facts of Pinkstone's own actions and arrangements in the preparation and consignment of the two parcels by the same method and at the same time. Further, in my view, whether a police officer believes particular matters are or are not connected for operational purposes or indeed even for the purposes of statutory provisions such as s 585, s 586 and s 587 of the Criminal Code, is simply irrelevant. The question is one of law. The counts are either properly joined as a matter of law or not.
In Beck & Smith v The Queen (supra), Beck had been convicted on two counts of rape and one of attempted murder and Smith had been convicted of one count of rape against the same complainant. Each of those counts were on the one indictment and the appellants were tried together. The complainant was Beck's de facto wife. Smith was Beck's cousin. The three of them had been at Beck's home when Beck told his wife that he had not had intercourse with her for some time and wanted it that evening. He and Smith went into a bedroom and called for her. After an initial refusal and as a result of being threatened with injury by Beck she went into the bedroom where she found both of them had exposed themselves. She was unable to get out of the room although she tried. She said she did not want sex with either of them but was threatened and then pushed onto the bed and held down. Beck had intercourse with her without her consent and despite her resistance. After Beck finished he invited Smith to have intercourse with her which Smith did whilst Beck held her down. The complainant later made a complaint to a neighbour who called the police. Before the police arrived Beck, who had in the meantime returned with Smith to the latter's house, came back to his own home and upon learning that the police had been called, attacked the complainant and attempted to kill her.
On appeal Brinsden J held the joinder of the two counts of rape and that of attempted murder in relation to Beck was justified pursuant to s 585 of the Code as forming or being part of a series of offences of a similar character. His Honour referred to Ludlow v Metropolitan Police Commissioner (1971) 54 Cr App R 233 as authority for the proposition that when considering whether offences form or are part of a series of offences of a similar character, both the law and the facts applicable
[2001] WASC 137
ROBERTS-SMITH J
should be taken into account and there must be a nexus between them, that is, a feature of similarity which in all the circumstance of the case enables the offences to be described as a series. His Honour held that a nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other. In that case he had no doubt that the evidence of the rape offences would be admissible on the trial of the charge of attempted murder and probably vice versa. He was also of the view that they were a series of offences of a similar character.
It is not entirely clear from the report but it does appear from the dissenting judgment of Rowland J (at 141 ibid) that the indictment charged three separate offences, namely that:
1. Beck committed rape upon the complainant; 2. Smith and Beck committed rape upon the complainant, and 3. Beck attempted unlawfully to kill her. The second count related to Smith raping the complainant with Beck's assistance.
In connection with the second count, Brinsden J noted (at 134 ibid) that the effect of a joint charge was explained by the House of Lords in DPP v Merriman (1972) 56 Cr App R 766, the analysis being that a joint charge against two or more accused alleges against each of them a separate offence committed on the same occasion and as part of the same transaction, the connection between them being no more than that as against each accused evidence of not only his own acts but also those of the other accused may be relied upon by the prosecution. Viewed in that way the joinder of Beck and Smith in the one count of rape amounted to an allegation of two separate offences in one indictment against the two accused. His Honour concluded that it was clearly lawful to have indicted Beck and Smith jointly in the one count of rape notwithstanding Smith's argument that the joinder of that count with the two others against Beck on the same indictment would infringe s 585 of the Code. As to this his Honour said (at 135 ibid):
"Sections 586 and 587 make provision for joinder of offences which could not otherwise be joined under s 585: see Mack CJ, R v Phillips and Lawrence [1967] Qd R 237 at 246. A joint count in respect of an offence whether pursuant to s 586 or s 587 inevitably means not only the joinder of two offenders in the one indictment but of two offences: DPP v Merriman.
[2001] WASC 137
ROBERTS-SMITH J
Section 585, therefore, has no application to the joinder of Beck and Smith in the count of rape. Once they are correctly joined, s 585 has no longer anything to say, except that in relation to Beck further counts may be joined in the same indictment against him provided they come within the provisions of s 585. Though Smith is correctly joined in the rape count, I am unable to see how the joinder becomes unlawful merely because there are additional counts against Beck. R v Phillips and Lawrence seems to be by inference support for this view. In that case there were ten counts joined, in respect of one of them (robbery in company) all five accused were indicted jointly. Additionally, there were nine other counts relating to separate offences in respect of which each was involved in at least one. Section 585 (s 567 Q) could not be relied on to justify the joinder in respect of separate offences against the one person for it was held, at least by Mack CJ at 246 and apparently by Hart J, that it could not be said that the offence was done in the prosecution of a single purpose, but contra Hanger J (as he then was) at 256. However, all the judges held that all of the offences could be joined by reason of s 586(6)(Q). In this particular case reliance is not sought on s 586 for the joinder of the other counts against Beck but on s 585. In my view, R v Phillips and Lawrence inferentially supports the joinder here and directly does so far as the judgment of Hanger J is concerned. His Honour in my view in the exercise of his discretion was right to refuse Smith a separate trial." (Emphasis added).
For his part Smith J observed that in the Code States, unless authorised by statute, the joint trial of separate offences is contrary to law and is contrary to the fundamental requirements of the administration of justice, citing R v Potter and McKenzie [1959] Qd R 378. So far as the question of the lawfulness of the joinder of all the charges preferred against Beck in the one indictment was concerned, Smith J pointed out that in Ludlow the House of Lords had held that two offences may constitute "a series of offences" (139 ibid) and that when looking at both the law and the facts to determine whether "a series of offences" is of a "similar character" there must be a nexus between them and although such nexus is established if the evidence which goes to prove one offence is admissible on the trial of the other, that is not the only test for the existence of a nexus. He referred to R v Barrell and Wilson (1979) 69 Cr App R 250 in which the English Court of Appeal held that the phrase
[2001] WASC 137
ROBERTS-SMITH J
"founded on the same facts" in r 9 of the Indictment Rules 1971 did not mean that the facts had to be identical in substance nor virtually contemporaneous, but the test was rather whether the charges had a common factual origin. Such a common factual origin was found to exist in that case where three men were charged with affray and assault. Two months later and before trial one of them visited a witness and by offering him money, tried to induce him to change his evidence about the assault when the matter came on for trial. A count of attempting to pervert the course of justice against that accused alone was then included in the indictment. It was held that if that charge could not have been alleged but for the facts which gave rise to the primary charge, the charges were founded "on the same facts" for the purpose of r 9 and could legitimately be joined in the same indictment.
Smith J concluded that there was a sufficient nexus between the offences of rape and attempted murder to make them a "series of offences of a similar character" for the purposes of s 585 of the Code. This reasoning supports the conclusion I have already mentioned above, namely that the joinder of the two Braziers in count 4 is proper as is the joinder on the one indictment of counts 1 and 3 against Pinkstone.
As to whether it was permissible for the trial Judge to allow both Beck and Smith to be tried at the same trial Smith J said (139, 140 ibid):
"In the present case there is no challenge to the joinder of the appellant Smith in an indictment charging the appellant Beck with rape. In these circumstances there is merit, I think, in the submission of the Crown Prosecutor that, once it is concluded that the joinder of the counts of rape and attempted murder against Beck in the indictment is valid, that is the end of the matter subject to the exercise by the trial judge of his discretion in the event of an application being made for separate trials under s 624 of the Criminal Code. In any event, to my mind, the exception contained in s 586(7) of the Criminal Code that any number of persons may be charged in the same indictment and tried together 'if the offences arise out of the same or closely related facts' covers the situation."
Mr Holdenson submits that Beck is not authority for a proposition that if all counts other than count 2 are properly joined under s 586(7) of the Code then so is count 2. His submission is that counts 2 and 4 are improperly joined on this indictment as a matter of law. He submits Beck is distinguishable by reference to the way in which the indictment was
[2001] WASC 137
ROBERTS-SMITH J
drafted in that case, his contention being that in that case it was the lawful joinder of Smith and Beck in count 2 which led to the conclusion that the other two counts were properly joined. That situation is to be distinguished, he says, from that here where Yanko is not charged in any count jointly with any other accused.
I do not accept that is a relevant point of distinction. In my view Beck is applicable to the circumstances of the present case and I am of course bound by it. Thus, it being conceded (so far as Yanko is concerned) that counts 1 and 3 are properly joined in this indictment, then on the reasoning of the majority in Beck, if it be right that count 4 is properly joined with counts 1 and 3, then count 2 is also properly joined with counts 1 and 3, and nor can the joinder of counts 2 and 4 be unlawful.
It is conceded (so far as Yanko is concerned) that counts 1 and 3 are properly joined and that counts 3 and 4 are properly joined. In my view count 2 is properly joined with count 1. Even if it could not be said that s 586(7) also authorises the joinder of count 2 with counts 3 and 4 (which I consider it does), at the very least it could not be said their joinder is unlawful if the joinder of counts 1 and 2 is proper.
I accept that for offences to be "of a similar character" within the meaning of s 585 there must be a nexus between them. There will be such a nexus if the evidence of one is admissible on the trial of the other, but that is not the only test. In the present case the evidence on count 1 would be admissible against Pinkstone on count 3 and vice versa. That would be so because - at the very least - it is part of the res gestae or more particularly simply because it would be probative of the offences charged in each instance (Sultana (1994) 74 A Crim R 27, Evans v The Queen [1999] WASCA 252 and Atholwood v The Queen [2000] WASCA 76).
In my view the joinder of counts 1 and 2 is authorised under s 586(7). Those alleged offences are essentially part of the one transaction. The same applies as between counts 3 and 4. The common features of all the counts is that they are properly joined to each other as (a) relevant offences by Pinkstone (counts 1 and 3) or (b) are offences properly joined on the indictment because they are charges of offences by other accused which arise substantially out of the same or closely related facts as those in respect of the counts against Pinkstone. Joinder is authorised if there is such a connection at least between one count and each other count. As is established by Beck, once joinder of different counts against the same accused is authorised in this way, s 585 has done
[2001] WASC 137
ROBERTS-SMITH J
its work and it has nothing further to say about the fact that there is no other connection between the accused or between the offences alleged in the various counts.
The same reasoning necessarily applies in respect of the applications by M and P Brazier insofar as they rely on improper joinder.
In my view the joinder of all four counts on this indictment is lawful.
If the joinder is proper, should separate trials be ordered?
Section 624 of the Criminal Code provides that:
"When 2 or more persons are charged in the same indictment, whether with the same offence or with different offences, the court may at any time during the trial, on the application of any of the accused persons, direct that the trial of the accused persons, or any of them, shall be had separately from the trial of the other or others of them, and for that purpose may, if a jury has been sworn, discharge the jury from giving a verdict as to any of the accused persons."
I will refer more specifically to the particular submissions advanced on their behalf when I come below to deal with the individual applicants, but at this point it can be said that in broad terms they raise claims that the evidence against them is different, there is much that would be inadmissible against the particular applicant although admissible against another or others of the accused and each applicant would suffer serious prejudice which could not be cured by direction were there to be a joint trial.
Again it is convenient to begin with the arguments advanced on behalf of Yanko.
The essential proposition is that a separate trial should be ordered because a joint trial would cause positive injustice to him. This is said to be because there is a large amount of evidence implicating Pinkstone, M Brazier and P Brazier which is inadmissible against Yanko and which would expose him to "collateral prejudice". It is said that the evidence admissible against Pinkstone with respect to his supply of the package containing cocaine and the evidence admissible against M Brazier and P Brazier on the count of attempted possession of cocaine is irrelevant to and inadmissible on Yanko's trial. Likewise it is said that the evidence admissible against Pinkstone with respect to his supply of the
[2001] WASC 137
ROBERTS-SMITH J
methylamphetamine is also inadmissible against Yanko other than that of his recorded telephone calls with Yanko. It is said that the danger to Yanko in a joint trial is that the strength of the evidence against Pinkstone and the Braziers, and particularly against M Brazier (who is said to be the intended recipient of the consignment from Pinkstone) and which demonstrates his knowledge of the contents of that consignment, will impermissibly lead the jury to conclude that Yanko (who received a different package from Pinkstone in very similar circumstances) must also have been informed by Pinkstone of the nature of the consignment.
These contentions were developed rather more extensively by Mr Holdenson in his oral submissions. According to him, it is inevitable that the jury will find that Pinkstone sent two parcels together from Sydney to Perth on 7 October 1999; that each parcel was for a fictitious addressee and was identical in appearance; that one parcel contained a further package in which was methylamphetamine and the other contained a package in which there was cocaine; that the parcels arrived together at Perth Airport on the night of 7 October 1999 and that subsequently Yanko attended and collected and took away the parcel containing methylamphetamine. The jury will find (he says) that P Brazier at the behest of, and under the direction of M Brazier, sought to collect the other parcel, which contained cocaine. Mr Holdenson says that on Yanko's trial on count 2 there will be no issue as to his attendance at the airport, his collection and removal of the parcel from the airport, nor the fact that it in turn contained methylamphetamine: the sole issue will be whether the Crown can prove beyond reasonable doubt that Yanko knew the nature of the prohibited substance in the parcel. To put it in terms of the onus of proof, the question will be whether or not the Crown could exclude as a reasonable hypothesis that Yanko was ignorant as to the nature of the contents of the package. In this regard Mr Holdenson noted that according to the prosecution brief, the parcel collected by Yanko was not opened subsequent to its collection and removal from the airport, there were no fingerprints of Yanko inside the parcel and there is no evidence anywhere in the material that Yanko knew of the sending from Sydney of any other parcel on 7 October 1999 and certainly no evidence that he knew there was another package which contained cocaine. It is said that if Yanko is tried with the Braziers on count 4 and Pinkstone on counts 1 and 3, much evidence will be led by the Crown which could not under any circumstances be admissible against Yanko on count 2 and the nature of that evidence is such that it would create a risk of positive injustice to him.
[2001] WASC 137
ROBERTS-SMITH J
Put more specifically, it is said that the danger to Yanko is that the strength of the evidence particularly against M Brazier which demonstrates his knowledge of the contents of the Innaloo Plasterers parcel will impermissibly lead the jury to conclude that Yanko, who received a different parcel, albeit identical in many respects, also from Pinkstone in very similar circumstances, must also have been informed by Pinkstone as to the nature of the contents of the One-on-One Security parcel. It is said furthermore there is a real risk that the evidence of the nature of the interaction or relationship between Pinkstone and M Brazier, although inadmissible against Yanko, will lead the jury to regard Pinkstone's relationship with Yanko to be on the same or similar terms - namely one in which Pinkstone informed Yanko as to the nature of the contents of the package. It is submitted that this is an impermissible line of reasoning, that it is a seductive line of reasoning and it is also one which no judicial direction could cure or prevent.
There is, I think, no dispute between the parties as to the principles which are applicable to the exercise of the discretion to order separate trials.
In R v Harbach (1973) 6 SASR 427 the two accused were jointly charged with murder and their application for separate trials was refused. The order refusing separate trials was upheld on appeal. The Court of Criminal Appeal referred to three propositions which it thought were clear (ibid 432). The first is that when the accused are charged with committing the crime jointly prima facie there should be a joint trial. The second is that a joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against one of the accused, although admissible against the other, will be before the jury. The third was that a joint trial may be ordered notwithstanding that one or both of the accused is trying to cast the blame for the crime on the other. The latter two however are highly relevant considerations to the exercise of a discretion. As to the circumstance that in that case there was a considerable body of evidence led which was inadmissible against one or other of the accused, the court said (ibid 434):
"… the law forbids us to say that improper prejudice, such as to produce a miscarriage of justice, was necessarily caused to the appellant because evidence admissible against Munro but inadmissible against him was before the jury on the joint trial. The learned Judge fulfilled and more than fulfilled his obligation to direct the jury how they should deal with that and
[2001] WASC 137
ROBERTS-SMITH J
the division of the summing up tended to reduce rather than
increase any prejudicial possibilities.Before we leave the topic we should add this. It can be asked, when would a Court of Appeal interfere on the grounds that separate trials should have been ordered if it will not interfere when a mass of material inadmissible against one of the accused is before the jury on the joint trial? We do not say that there may not be cases when the amount of such material is so great or its effect so damaging as to compel appellate intervention. But we are bound to hold that the mere presence of such material is not enough in itself for that purpose."
The applicants rely upon R v Darby (1981-82) 148 CLR 668. That of course was a case in which the point at issue was whether the law in Australia was that where two persons are jointly presented for trial on a single count of conspiracy between themselves and no other, the acquittal of one necessitates the acquittal of the other. The High Court held that not to be the law. The salient remarks made by the majority (Gibbs CJ, Aikin, Wilson and Brennan JJ) were made in the specific context of the potential difficulties confronting a Judge and jury on a case of conspiracy between two accused and no others where the evidence admissible against each of them is different. An outcome of a guilty verdict against one accused but a verdict of acquittal in respect of the other is explicable in terms of the obligation of the jury to consider the guilt of the two accused separately and only on the basis of the evidence admissible against each. The incongruity which remains is that where the trial Judge directs the jury on the one hand that they must consider the guilt of each accused separately taking into account only the evidence against each and yet at the same time directs them that they must either convict both or acquit both. It was in light of that and the consideration that in a case in which the evidence against one accused is overwhelming, a jury which is directed that they must either convict or acquit both, may find it practically impossible to sustain and act on a reasonable doubt on the evidence admissible against the other, that the majority thought there was much to be said for requiring separate trials in cases in which the evidence admissible against one accused is significantly different from the evidence admissible against the other. Their Honours encouraged the adoption of such a practice (ibid 678), but noted that in cases where there is no material distinction in the evidence admissible against both alleged conspirators the trial Judge's advice to the jury to either convict or acquit both would continue to be appropriate not because of any technical rule but because of the circumstances of the case. I would not see Darby for present purposes as
[2001] WASC 137
ROBERTS-SMITH J
articulating any different proposition than that the relevant consideration is not whether inadmissible evidence may be led against one accused on a joint trial but rather whether for that reason there may be a risk of positive injustice to that accused. (See also De Jesus (1986) 61 ALJR 1).
The point that possible prejudice arising from the presentation of evidence admissible against one but not another or other accused does not necessarily put a fair trial at risk was referred to by Neasey J in Leaman (1987) 28 A Crim 104 at 107. Although Neasey J was in the minority in Leaman, there was no disagreement between his Honour and the majority (Cox and Underwood JJ) as to the relevant principles, merely the application of those principles to the facts of that case. At 108 Neasey J articulated two guiding propositions:
"The first is that in a joint trial where evidence inadmissible against one accused is tendered against another, the law requires the trial Judge to point out clearly and explicitly to the jury the inadmissible evidence, and how it may and may not be taken into account. Unless the trial Judge performs that duty a miscarriage of justice is almost automatic. The other is that, provided the trial Judge's instructions to put aside inadmissible evidence where necessary is reasonably capable of performance, a jury is to be trusted to carry out that obligation."
His Honour noted that the reported cases show it has frequently been held that a joint trial was fair to all accused even though a great deal of evidence was tendered which was inadmissible against one or other of them.
His Honour said (ibid 108):
"A basic question faced by a trial Judge considering whether to order a separate trial, or an appellate court considering whether a miscarriage of justice has occurred because it did not, always is whether the prejudicial effect of the inadmissible evidence is (or was) capable of being adequately neutralised by appropriate instructions to the jury. That question will usually involve two further issues, namely:
(1)
will an average jury be reasonably capable, as an intellectual exercise, of performing the task thus given them? and
[2001] WASC 137
ROBERTS-SMITH J
(2) is the prejudice likely to be so great in the circumstances that it would not be reasonable to expect the jury to leave the prejudicial evidence out of account against a particular accused even though it is inadmissible against him?"
In the same case, Cox J observed (ibid 112):
"… it is wrong to assume that some extraordinary consideration must be shown to exist before there can be a departure from the usual practice of ordering joint trials. It must be a matter in every case of considering the competing interests of justice to the community at large and of the accused and each of them and after giving due weight to each of those interests determining the course to be adopted. The degree of prejudice to the accused flowing from a joint trial will vary in each case. In some cases it will be so slight that there is no risk of injustice in conducting a joint trial. In others it may be so great that separate trials will be necessitated."
In R v Connell, Lucas & Carter (No 1) (1992) 8 WAR 518 the accused Carter applied for a separate trial on the ground that the case against him was significantly different from and weaker than the case against Connell and Lucas, that there was a real risk Carter would be dragged down by the sheer volume and effect of the evidence against the other two accused and that the weaker case against him would be greatly strengthened by the prejudicial material not admissible against him.
The material before Seaman J included statements of some 350 witnesses and documentary exhibits running to approximately 80,000 pages. There were over 1500 particulars of overt acts. The prosecution's case statement was 278 pages. It was anticipated that the Crown would be put to strict proof of every fact. The trial was expected to be extremely long.
Nonetheless, his Honour held (at 530 - 531):
"In my view the submission for Mr Carter is essentially that he will be dragged down by the weight of evidence of misconduct against his co-accused. I accept that there is likely to be a great deal of evidence which can be led against the co-accused which is only admissible against Mr Carter because it goes to show that the true financial position of Rothwells Ltd was not as
[2001] WASC 137
ROBERTS-SMITH J
stated in the published account. I also proceed on the basis that
some of it will be inadmissible against him.Segregation of the direct evidence against each of the accused will be a critical matter in a joint trial but an average jury would, in my view, be quite capable of recognising the distinctions between the evidence against Mr Carter and the evidence against his co-accused. The law cannot proceed upon the assumption that jurors would depart from their oaths to find Mr Carter guilty by association because he appears day-by-day over a long period in the dock with two other accused against whom the Crown hopes to prove a long sequence of fraudulent activities.
There may be cases in which the distinction between the case of one accused and his co-conspirators is apparent at the conclusion of the prosecution's opening. There may be other cases where it becomes clearly apparent as the trial progresses…
Likewise there may be cases in which the strength of a distinctly different but stronger case against other co-accused becomes quite clear to the jury as the trial progresses and reinforces in their minds the distinction between the position of the accused against whom lies the weaker case and the co-accused.
In my view this is such a case because a jury is very likely to appreciate the marked distinction between the case against Mr Carter and his co-accused from an early stage without the necessity for any direction, although they will obviously be directed to the separate evidence against each and the need to consider the case against each separately.
As the months of the trial go by I have no doubt that the conduct of Mr Carter's defence will make the distinction even plainer.
In my opinion Mr Carter would secure certain tactical advantages if he could persuade me to direct that he be tried separately from the co-accused but I have not been satisfied that he is likely to be deprived of the opportunity of a fair trial by being dealt with jointly with the co-accused.
[2001] WASC 137
ROBERTS-SMITH J
I refuse the application for a separate trial."
Separate trials have been ordered where a real risk of possible injustice was perceived by reason of conflicting accounts given by co-accused in police interviews, particularly where reinforced by similar accounts given by way of an unsworn statement from the dock (see eg Leaman supra and R v Piller, Kramer & Edwards (1995) 86 A Crim R 249), but that will not always be the case. In R v Middis & Ors, unreported; SCt of NSW; 27 March 1991, Hunt J granted the application by one of five accused for a separate trial but refused similar applications by the other four accused. Each of the five accused had been charged with the murder of Middis' wife. The Crown case was that Middis actually strangled her during the night when she was lying on her back on the bed on which she had been asleep. Each of the other accused was alleged to have been present at the time and to have assisted him in one way or another, by holding on to her limbs or otherwise being available to give assistance if required. The applications for separate trials were founded on claims that the individual accused would be prejudiced in a joint trial by statements made by the other accused to investigating police and which were not admissible against the particular applicant but which were highly prejudicial to their case.
Hunt J summarised the relevant principles as being (ibid 4):
"(1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and
(2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial."
His Honour did not accept that an applicant for a separate trial must demonstrate that positive injustice would more likely than not be caused by a joint trial nor that a mere possibility of prejudice would be sufficient. In his Honour's view the law is that as some prejudice to one or other
[2001] WASC 137
ROBERTS-SMITH J
accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would, if it arises, result in positive injustice to him in a joint trial. Thus, an applicant for a separate trial must demonstrate that there is a real risk (as opposed to a remote possibility) that a joint trial would give rise to prejudice of the type which would result in positive injustice to him. His Honour then added (ibid 6):
"It should be kept in mind that a decision made prior to a trial to refuse an application for separate trials may always be reviewed during the course of the trial itself. Some additional circumstances may become apparent which had not been foreseen earlier. What may have been thought to be no more than a remote possibility may become only too real as the trial proceeds. In those circumstances the Judge has a choice. He may discharge the jury in relation to the accused who is prejudiced and proceed against the other accused, or in some cases it may be necessary for him to discharge the jury generally and to start again with wholly separate trials. The Crown, having sought the joint trial, can hardly complain in relation to the additional expense and inconvenience which would result to the administration of justice by such a course being followed.
It should also be kept in mind that, in a joint trial, not only is the jury given specific directions that evidence admissible against only one accused is not to be taken into account against the other accused (usually both when the evidence itself is tendered and also in the summing up) but also the jury must be directed separately in the summing up in relation to the evidence admissible against each accused."
In the event, Hunt J concluded that the case against one accused was significantly different to and weaker than the cases against the others and there was in his view a real risk that that case would be made immeasurably stronger by the presence of the inadmissible material which would be led in relation to the others. It was for that reason he ordered a separate trial in respect of that accused; however he refused the applications of the other four accused.
| 70 | The principles articulated by Hunt J in Middis have repeatedly been accepted by the Court of Criminal Appeal in New South Wales (see Baartman, unreported; CCA SCt of NSW; No 60499 of 1994; 6 October |
[2001] WASC 137
ROBERTS-SMITH J
1994; Fernando [1999] NSWCA 66 and Georgiou [1999] NSWCA 125). They were accepted and applied by Kirby J in Patsalis & Spathis (1999) 107 A Crim R 432, to which I was referred by Mr Holdenson.
In Patsalis, although accepting the Middis formulation, Kirby J emphasised that it did not state exhaustively the circumstances in which a court should order a separate trial. The touchstone must necessarily remain general: is there a risk of positive injustice to the accused were he or she to stand trial jointly with a co-accused?
I accept as a succinct statement of the relevant principle that an applicant for a separate trial must demonstrate that there is a real risk (as opposed to a remote possibility) that there will arise in a joint trial prejudice of the type which - if it does arise - would result in positive injustice to him. In my view this test is in substance the same as that applied by Seaman J in Connell (No 1) (supra) in which his Honour held that where different charges against a number of accused are properly joined, a separate trial should only be ordered where there is risk of a miscarriage of justice, or prejudice of such a nature as to prevent a fair trial (ibid 529).
I accept the Crown's submissions that increased costs to an accused have no bearing on the question whether there was a risk of relevant injustice to the applicant. Nor does the fact that an accused may secure certain tactical advantages if he were to be tried alone (R v Connell (No 1) ibid at 531), nor that each counsel could defend each accused more easily were they to be tried separately (R v Grondkowski & Malinowski [1946] 1 KB 369 at 373).
In the present case the prosecution brief comprises in excess of 2000 pages. There are approximately 80 witnesses listed on the back of the indictment. Counsels' current estimates for the trial range from 6 to 10 weeks. It is submitted on behalf of Yanko that the scope of the evidence admissible against him is very limited and that were he to be tried separately his trial would take approximately only 3 to 4 days. It is said that much of the Crown evidence will not be necessary because appropriate admissions would be made.
On the other hand, Ms Archer submits most of the evidence which would be led on a joint trial would be admissible on a separate trial of Yanko and that if admissions can be made on a separate trial they can likewise be made on a joint trial. Ms Archer submits alternatively, that even assuming evidence relating to the other counts is inadmissible as
[2001] WASC 137
ROBERTS-SMITH J
against Yanko, a separate trial for him would still take significantly longer than 3 or 4 days. She contends the Crown would be entitled to lead all of the evidence relating to Pinkstone and Yanko's relationship at the relevant time. That would include not only their telephone calls (involving witnesses Turnbull, Stevenage, Schlesmiak, Heller, N Jamieson, D Jamieson, Sciortino, G Fendel, B Fendel, Coleman, Findlay, Dagg, Foster, Elliott, Brophy, Zapulla, Kirkby and Tuttle) but also their meetings (involving numerous surveillance operatives including numbers 4, 9, 15, 19, 23, 30, 31, 32, 33, 35, 36 and arguably 26) and the evidence of Pinkstone's visit to Perth the day before the consignment. In addition there is the evidence of the occupants of 47 Salisbury Street, the police officers who searched that address, Yanko's home and Yanko's car, those who apprehended Yanko, and those who examined the parcel (which include Heppenstal, McGorrigan, Bryson, Schubert, Fucile, Miller, Hampson, Post, Alver, Forward, Steel, Benson and Williams). There are also the witnesses who will give evidence relating to the movement of the parcel (namely O'Brien, Kanawati and Wellstead) and the chemist who analysed the contents. This would be a total of 47 witnesses.
It is obviously the case that if admissions are to be made by any particular accused they can as readily be made on a joint, as much as a separate, trial - although of course I appreciate that the practical effect of making them on a joint trial may be substantially negated if the same admissions are not made by all of the accused. In any event, I consider I am in no position to assume that any admissions would be made and I am certainly not prepared to act on this application on any such assumption.
I now turn to the particular items of evidence which Mr Holdenson says are inadmissible as against Yanko and impermissibly prejudicial to him. They are listed on his schedule headed "Items of Evidence Not Admissible Against Yanko on Count 2" and I shall refer to them by the numbers they are given on that document.
The Crown's submission in this regard as I have said, is that the only inadmissible matter referred to in the schedule and possibly prejudicial to Yanko is item 12 and that everything else listed is either admissible against him or not such as to cause prejudice which could not be overcome by an appropriate direction to the jury. Ms Archer submits in the alternative, that if I were to form the view that a particular piece of evidence (and she was here really referring to item 12) would be so prejudicial as not to be capable of being overcome by judicial direction, then the Crown should be given the option of not leading that evidence rather than having an order for separate trials made. Whether that
[2001] WASC 137
ROBERTS-SMITH J
submission be upheld or not in the end, I think Ms Archer was correct to express it in terms of the Crown being given the option not to lead the evidence; that is because if the evidence is properly admissible against one or more accused, I consider it would not be open to me to exclude it on the ground that it would cause impermissible prejudice to another - the appropriate remedy in that situation would be an order for separate trials.
I accept the Crown's submission that it is not enough that there is a much greater extent of evidence against Pinkstone and the Braziers, nor that the cases against them are stronger, than against Yanko (which the Crown does not concede). What Yanko must demonstrate in this regard is that not merely is the case against him significantly different to and weaker than the cases against the other accused, but that there is a real risk the case against him will be perceived by the jury (consciously or subconsciously) as being strengthened by the presence of the evidence which is inadmissible as against him.
It is apposite at this point to deal with Mr Holdenson's argument that the Crown is seeking to show that because M Brazier knew the nature of the contents of his package, so must Yanko have known the contents of his, and that is an impermissible process of reasoning (which he characterised as "similar fact reasoning"). The Crown he says, is seeking to put to the jury that if M Brazier is guilty, so is Yanko.
This submission is drawn in particular from pars 24 to 30 inclusive of the schedule to the Crown's outline, under the heading "Is the evidence in relation to count 3 admissible on the trial in relation to count 2?" I set them out below:
"24.
In relation to count 2, it is relevant and admissible to lead evidence of the degree of sophistication and extent of the supplier's operation, and of all of the surrounding circumstances, from which inferences can be drawn.
25.
A defence that could be open to Yanko is that he believed the contents to be other than prohibited drugs ('innocent association').
26.
To rebut that defence, the Crown would be entitled to lead evidence to demonstrate that Pinkstone was conducting a high level and sophisticated operation, and was a drug dealer. In those circumstances, a jury would be entitled to infer that it is extremely unlikely that the job of collecting the methylamphetamine parcel would be
[2001] WASC 137
ROBERTS-SMITH J
given to 'an innocent patsy' who had no knowledge of its contents. It is even more unlikely that the job of collecting the methylamphetamine parcel would be given to an 'innocent patsy', when the job of collecting the cocaine parcel was given to a person who was aware of the illicit contents.
27. However, not all of the core evidence in relation to count 3 is admissible to be same extent as it is admissible in relation to count 2.
28. Obviously, the Crown could not rely on the truth of conversations between Pinkstone and Michael Brazier against Yanko, as such evidence would be hearsay in relation to him.
29. However, if the fact of the conversations and content are relevant to count 2, the hearsay rule has no application. The Crown submits that the fact of the conversations is relevant as showing, for example, the sophisticated nature of Pinkstone's operation.
30. In respect of the vast majority of conversations between Pinkstone and Brazier, the Crown is not seeking to prove the truth of what was said in any way against any of the accused. And in those instances where the Crown does rely on the truth to prove a fact against Pinkstone or Brazier, the evidence is still admissible against Yanko for the fact of the conversations."
In oral submissions, Ms Archer explained the Crown would be seeking to invite the jury to draw the inference that Pinkstone did tell Yanko what was in the parcel he was to collect. She referred to evidence that Pinkstone visited both intended recipients the day before the consignment. On 6 October 1999 he flew to Perth and during a visit of less than four hours, visited three people - they being an Helena Stein, Yanko and M Brazier. There will be evidence of telephone calls from Pinkstone to both M Brazier and Yanko from which the jury would be asked to infer they were discussing the consignment of prohibited drugs. Approximately an hour before Pinkstone attended the Ansett Air Cargo depot in Sydney, he spoke to Yanko on the telephone and talked (inter alia) about having to "go overboard" because of the "puppy smell". The jury will be asked to infer this discussion was about the need to
[2001] WASC 137
ROBERTS-SMITH J
thoroughly wrap the drugs to prevent them being detected by the sniffer dogs at the airport. There will be evidence that following Pinkstone's consignment of both parcels on the same flight, each intended recipient telephoned him that night. There will be evidence of telephone calls from M Brazier to Pinkstone and a call from Yanko to Pinkstone. The latter was made from a public telephone booth and Yanko was observed to make it by surveillance operatives following him.
I am conscious that questions of the admissibility of evidence have not yet been argued before me. What I say in these reasons is not intended to pre-empt any ruling I may make in respect of any particular item of evidence following full argument; nonetheless I must do the best I can for the purposes of these applications.
On the charge that Yanko was in possession of methylamphetamine the Crown would have to prove:
• Yanko had physical custody or control of the drug; • the substance was methylamphetamine; • Yanko knew the substance was a prohibited drug, and • he possessed it with intent to sell or supply it to another.
It is fundamental principle that all evidence which is relevant is admissible unless excluded by a particular rule of evidence, and that evidence is relevant to a fact in issue if it proves, or renders probable, the existence of that fact.
For present purposes I am prepared to accept that most of the evidence in respect of count 1 would be admissible on count 2 against Yanko. This would include evidence that Pinkstone was conducting a business of supplying prohibited drugs and the manner in which he conducted that business. Thus, statements made to M Brazier as to the arrangements made for the consignment of the parcel to Innaloo Plasterers, the way in which the drugs had been packed in the package, the giving of the code to open the digital safe, and his telephone and personal contacts with M Brazier, shown to be similar to his dealings with Yanko, would be admissible against the latter. What was said between Pinkstone
[2001] WASC 137
ROBERTS-SMITH J
and M Brazier would not be excluded by the rule against hearsay. That prohibits the leading of evidence of out of court statements made by a person other than the accused, and in the absence of the accused, in order to establish the truth of those statements. Where the evidence is led to establish the fact the statement is made and that fact is relevant to a fact in issue in the case, it is not excluded by the rule against hearsay (see Subramaniam v The Public Prosecutor [1956] 1 WLR 965).
The Crown says it wishes to lead evidence to show that Yanko was part of an organised activity by Pinkstone, which Pinkstone conducted in a particular way, and which involved the receipt of packages of drugs by persons to whom Pinkstone had made the contents known. If the jury was satisfied that was how Pinkstone conducted his operation and that in a number of other respects his dealings with Yanko were conducted in the same way as his dealings with M Brazier, it would be open to them to draw the inference that he also made the contents of the One-on-One Security package known to Yanko.
The evidence would not be led as to the truth of the statements but as to the fact of how Pinkstone was conducting his illicit drug operation (see Atholwood (supra) and Evans v The Queen (supra)).
If any particular telephone conversation between eg Pinkstone and M Brazier is looked at in isolation, even if not falling within the description of hearsay for the purposes of the exclusionary rule, (because not led as to the truth of its content) it would likely be inadmissible to the charge against Yanko for lack of relevance on its face. But an individual piece of evidence is not to be looked at in that way. Its relevance will often depend upon and derive from its relationship with other evidence in the case. Thus, a conversation between Pinkstone and M Brazier about a transaction to eg launder the proceeds of crime, or about the shipment of unlicensed firearms, would have no relevance to the charge against Yanko and simply be admissible on that account. So too if there had been no evidence that Pinkstone was dealing with both Yanko and M Brazier in an organised way, making similar arrangements, at the same time, in respect of consignments both sent in the same way on the same occasion, then the evidence of the telephone calls standing alone would be irrelevant as tending to prove nothing against Yanko but would nonetheless be unfairly prejudicial to him. But where the Crown case is that Yanko was in possession of the methylamphetamine as a result of his participation in an activity being organised by Pinkstone in a particular way, the fact of how that was organised is relevant to Yanko's knowledge of the contents of the
[2001] WASC 137
ROBERTS-SMITH J
parcel if evidence of that organisation or method proves or tends to prove
Pinkstone told Yanko what was in the parcel.
This does not amount to arguing that if the jury were to find M Brazier guilty then Yanko must be guilty; and the jury would have to be clearly told not to reason that way.
I should say, however, that I do have real difficulty with the proposition as expressed at [26] of the schedule to the Crown's outline, that in circumstances in which there was evidence Pinkstone was operating as a drug dealer, then:
"… In those circumstances, a jury would be entitled to infer that it is extremely unlikely that the job of collecting the methylamphetamine parcel would be given to 'an innocent patsy' who had no knowledge of its contents. It is even more unlikely that the job of collecting the methylamphetamine parcel would be given to an 'innocent patsy', when the job of collecting the cocaine parcel was given to a person who was aware of the illicit contents."
To put it that way would, in my view, be inviting the jury to speculate and would not be permissible.
And so I come to the individual items identified by Mr Holdenson as inadmissible against Yanko but improperly prejudicial to him.
Item 1: Statement made by Pinkstone to the witness Craig O'Brien, the
Ansett Air Cargo employee in Sydney, at the time of his
consignment of the two packages on 7 October 1999 (pb 381)
What is complained of is Pinkstone's statement that: "I'll have my guys there at 9.40 pm."
The inference is that Pinkstone had arranged to have two people in Perth when the plane landed for the purpose of collecting the two packages which he was in the process of consigning through Mr O'Brien. Mr Holdenson submits that is only admissible against Pinkstone and so only admissible on counts 1 and 3. It is arguable that the statement is admissible against Yanko simply as evidence of the arrangements Pinkstone was making for the consignment of the parcel; but even if that not be so, I can see no improper prejudice to Yanko - and certainly none which not be readily cured by direction.
[2001] WASC 137
ROBERTS-SMITH J
Item 2: Telephone call from Pinkstone to M Brazier at 16:58:25 hours on
17 September 1999 (prosecution brief ("pb") 1908.5).
(In these reasons the times stated for telephone intercepts will be Perth time unless indicated otherwise).
In that conversation M Brazier tells Pinkstone that a friend of his just called him from Melbourne and said he had "half an elbow" and that he was interested in "off-loading the whole lot". Mr Holdenson says that is clearly a discussion in code from which it would be open to a jury to find that M Brazier and Pinkstone are discussing dealing in drugs.
That evidence would clearly be admissible against Pinkstone and M Brazier as the fact that they were currently in the business of drug dealing is a fact relevant to the issues in the case and is not mere evidence of propensity to commit crime or bad character (see Gleeson CJ in Sultana (supra), at 28-29); Atholwood (supra) and Evans (supra). In each of those cases the evidence was led to show the accused was a drug dealer, but the principle has application where it is relevant to the charge against Yanko to show that Pinkstone was in the business of dealing drugs and doing so in a particular way where that bears upon whether the parcel sent to Yanko in fact contained methylamphetamine: and Yanko's knowledge of that).
Ms Archer foreshadows the Crown would be leading evidence of three consignments of prohibited drugs prior to 7 October 1999, one of which was collected by a person known to be an associate of Yanko and driven to the location of Yanko's home. I am prepared to accept for present purposes that this evidence would be admissible on count 2 to show Pinkstone was a drug dealer; whether it could be used against Yanko in any way other than that remains to be seen. On the assumption that it would be not, I consider a direction to the jury to use it for that limited purpose would be sufficient to avoid any improper prejudice to Yanko.
Item 3: Telephone call from Pinkstone to M Brazier at 08:02:13 hours on
7 October 1999 (pb 1959.8-1960.5)
Here Pinkstone tells M Brazier that something was going to be another week away and he told someone else that rather than do that he would get one, so he got it last night and what he was actually going to do was to send it to M Brazier by TNT tomorrow. There is then some discussion about what name to use and reference to Innaloo Plasterers.
[2001] WASC 137
ROBERTS-SMITH J
Pinkstone also says something is "unbelievable" and "as good as gold". Mr Holdenson says this is clearly a discussion between the two in which it is clear that Pinkstone is not sending money on consignment from the airport; this evidence therefore would rebut any defence offered by M Brazier that there was cash money being sent in that package.
That this would be advanced by way of defence on the part at least of M Brazier was apparently foreshadowed in the preliminary hearing, it also being suggested that references in the telephone intercepts to "Charlie" were references to cash rather than cocaine.
Once again, this would be admissible as against Pinkstone, Brazier and Yanko to show that Pinkstone was engaged in the business of drug dealing; and in any event whether admissible against Yanko or not it could hardly be improperly or unfairly prejudicial to him in the circumstances, given his defence is apparently to be simply that he was unaware of what was in the parcel.
Item 4: Telephone call from Pinkstone to M Brazier on 7 October 1999 at
10:38:58 hours (pb 1971-1974)
M Brazier asks whether something should go in his name or go in "under a bodgy". There is then some talk about his birthday being on 4 October and M Brazier says if he just receives a message on his message service telling him to go and pick up his present. Pinkstone then gives him a series of numbers (which apparently refer to the consignment note) and there is a reference to Innaloo Plasterers and Security. Pinkstone then says that "it" would be there tonight at 20 to 10 at Ansett Freight. Pinkstone tells M Brazier to telephone him as soon as he has got it because he would have to give Brazier a code to get into it - he would not to be able to get into it without the code. At the conclusion of the conversation Pinkstone tells M Brazier to make sure that he checks that it is the one for Innaloo Plasterers because there are two there and to give him a ring as soon as he has got it. This item of evidence ties in with the next item objected to by Mr Holdenson and I will deal with them together.
Item 5: Telephone call from M Brazier to P Brazier 16:31:05 hours
7 October 1999 (pb 1975-1977)
M Brazier gives P Brazier the number of the consignment note just given to him by Pinkstone and tells him that "its coming from Sydney to Innaloo Plasterers". M Brazier tells his brother to take it home and "I'll get it off you". He says 20 to 10 at the Ansett Terminal and tells him to
[2001] WASC 137
ROBERTS-SMITH J
take it home and give him a call and just say "I've got the plans". He says he does not want P Brazier to say anything else and that if anyone says anything to say that he just got a message to pick up some plans for Innaloo Plasterers.
Mr Holdenson submits these two conversations clearly do not refer to M Brazier telling his brother to go and pick up some cash that is coming through in the package.
The evidence of these two telephone conversations is clearly admissible against the Braziers; in my view it would not be admissible against Yanko. Nonetheless, it would give rise to no prejudice to Yanko which could not be obviated by a suitable direction to the jury.
Item 6: Telephone call to M Brazier from an unknown female 16:51:16
hours 7 October 1999 (pb 1980-1983)
The female says she is calling to see if his cousin Charles turned up, to which M Brazier says, "No apparently he is not in town" and "it" may be "here on the weekend apparently". M Brazier repeats that "it" may come in on the weekend. They then talk about the circus which had been playing in Perth.
Mr Holdenson suggests that passage is clearly admissible in evidence only against M Brazier and the references to cousin Charles and "it" turning up clearly undermine any defence about any use of the word "Charlie" being referrable to cash as distinct from something else. He says item 6 is also related to a telephone intercept on 28 September 1999 (pb 1917) where there is a similar message left on M Brazier's telephone message bank from an unknown female wanting to know if "Uncle Charlie" is in town. Mr Holdenson says that each of those passages could be relied upon by the Crown to undermine any defence proffered by M Brazier that the use of the word "Charlie" is referrable to cash rather than cocaine.
This evidence is clearly admissible against M Brazier, but not Yanko. I do not see it as giving rise to any prejudice to Yanko which could not be satisfactorily met by direction.
[2001] WASC 137
ROBERTS-SMITH J
Item 7: Telephone call from M Brazier to P Brazier 21:25:25 hours,
7 October 1999 (pb 1985-1988)
M Brazier makes a telephone call to P Brazier while the latter is at Perth Airport. P Brazier says he has "just been in" and was told it would be about 15 to 20 minutes so he said he might pop back tomorrow but then "he" came back and said maybe 10 minutes and P Brazier tells his brother that "there are dogs everywhere". P Brazier says it is up to his brother whether or not he wants him to wait and says he was told it had just landed. M Brazier says he cannot get it until 20 to 10 because that is what time it gets there. P Brazier says he is there and it is up to his brother and asks "how dodgy is it". M Brazier assures his brother the telephone he is talking to him is OK so there is no problem there and then P Brazier asks: "What's in it?" to which M Brazier responds: "There should be some Charlie in it" although he says he does not know how much and P Brazier asks: "Are they going to sniff it out?" In their following conversation M Brazier tells his brother that he (P Brazier) does not know anything about it, he just got a message from his answering machine to pick it up for Innaloo Plasterers. Mr Holdenson submits that the content of this telephone conversation is admissible only against the Braziers and not against Pinkstone, let alone Yanko. He submits that on that evidence the Crown clearly has an especially strong case in respect of the knowledge of the Braziers as to the content of the parcel that P Brazier was there to collect. Ms Archer submits with respect to item 7 (as with items 5 and 9 inclusive) that evidence of this conversation is not prejudicial to Yanko.
I accept that any unfair prejudice to Yanko could be allayed by direction to the jury that this is not evidence against him and must be put to one side when considering the case against him. I consider the strength or weakness of and the differences between the cases against the respective accused would be appreciated by the jury and that would of course be supplemented by directions referring to the separate evidence against each and the need to consider the case against each separately.
Item 8: Telephone call from M Brazier to P Brazier at 21:41:13 hours,
7 October 1999 (pb 1989-1900)
This is a short conversation to the effect that P Brazier said he had just been back in there and "he" (presumably the airline clerk) told him they were running five minutes late because it had not even landed yet, although he told P Brazier two minutes earlier that it had landed. There is a query about whether this is "suss" and P Brazier says the clerk does not
[2001] WASC 137
ROBERTS-SMITH J
look right there. All that Mr Holdenson says about this is that the discussion is clearly inconsistent with any contention proffered by either of the Braziers that the parcel contained something legitimate.
My conclusion about this is the same as for item 7.
Item 9: Telephone call from M Brazier to P Brazier 21:54:38 hours
7 October 1999 (pb 1995-1996)
This is a short discussion similar to that in item 8. P Brazier repeats that the person there did not look right with the others with him behind the desk and there is some reference to "smelling it" at the other end. Once again, says Mr Holdenson, this is inconsistent with any suggestion by the Braziers that their belief was that whatever was in the parcel was legitimate.
I consider this falls in the same category as items 7 and 8.
Item 10: Telephone call from Pinkstone to M Brazier at 06:25:57 hours,
8 October 1999 (pb 2000-2001)
In this conversation M Brazier makes some reference to going out there last night and hanging around for 40 minutes but it was a "bit suss" so he came home. Pinkstone says "because it was bad weather wasn't it?" with which M Brazier agrees. M Brazier then asked Pinkstone whether his other mate had been out there and Pinkstone says "Yes, everything was fine. He said it was just late, that was all." M Brazier then tells Pinkstone he will get (it) and Pinkstone says:
"… you're better off going out there as soon as possible if you can, I know it’s a pain in the butt mate but the longer it lays there you know its, its um, you know what I mean."
M Brazier then says he will get his brother to go out there.
Mr Holdenson says the Crown will no doubt invite the jury to find this was another discussion in code (with the references to "bad weather") and it is important because the "other mate" is clearly referable to Yanko, tying him in with criminal conduct yet as out of court statements made by these two persons, inadmissible against him.
| 117 | Assuming this to be inadmissible against Yanko, I would not consider it to create prejudice not capable of being overcome by direction, given Mr Holdenson's indication that at trial Yanko will not be disputing |
[2001] WASC 137
ROBERTS-SMITH J
that he did in fact collect the parcel which in fact contained methylamphetamine and there will be other evidence that Yanko did telephone Pinkstone after collecting the parcel.
Item 11: Telephone calls from Pinkstone to Tracey Yanko 08:30:48 hours (Sydney time, 06:30 hours Perth time), 8 October 1999 (pb 2005-2007)
These are in fact two brief telephone calls a few minutes apart. In the first Tracey Yanko advises Pinkstone that she cannot talk because she has a few things to organise with lawyers. In the second call Pinkstone enquires what happened, is "he alright" and again asks what happened. She tells Pinkstone that "he's" got to go to court in the morning, says something about the Drug Squad and in response to further questions by Pinkstone about what happened, said they apparently smashed into his car. She then terminates the call. In this way, immediately after his conversation at 6.26 am Perth time with M Brazier, Pinkstone acquires knowledge of the arrest of Yanko by the Drug Squad late the previous night.
It is to be expected there will be no dispute about the fact, time nor manner of Yanko's arrest. The fact of Pinkstone's enquiry about Yanko's arrest the night before is relevant and admissible against Pinkstone. Ms Archer concedes it is not admissible against Yanko (T 163). In my view, even if not admissible against Yanko, the evidence of this conversation could not be unfairly prejudicial to him in any way.
Item 12: Telephone call from Pinkstone to M Brazier 06:33:28 hours,
8 October 1999 (pb 2008-2010)
This is Perth time. The call is made some 30 seconds after Pinkstone has spoken to Tracey Yanko and learned of Yanko's arrest the night before. Pinkstone tells M Brazier not to send his brother out there just yet, that he has just spoken to his "other mate's girl" and that apparently something happened to him last night. Pinkstone then says:
"… he doesn't usually go out there and get it himself he usually
gets someone else to go out and get it right."Mr Holdenson rightly says Yanko is now being specifically identified in this conversation by reference to his wife.
[2001] WASC 137
ROBERTS-SMITH J
Also in the conversation there is a reference to Yanko doing: "… a lot of running around with a lot of other things" and M Brazier reports that his brother said it was "suss" and there were a lot of dogs out the back. There is some further discussion about that.
Mr Holdenson says the reference to Yanko running around with a lot of other things is almost an invitation to the jury to infer that he does a lot of criminal things.
Towards the end of the conversation Pinkstone tells M Brazier that the "drug blokes" actually just broke into the car he was driving along and says that he would have thought they would have got him at the airport. He then asks M Brazier to listen to the radio to see if there was anything about Yanko and M Brazier says if "they" come knocking for Innaloo Plasterers he does not know what they are talking about and Pinkstone repeats "you don't know anything".
Mr Holdenson submits the concoction of a false story and denial of knowledge will be said to evince a consciousness of guilt on the part of Pinkstone and M Brazier. However, he submits the conversation contains assertions of serious misconduct by Yanko and that it is inadmissible against him on count 2.
The Crown concedes that the reference to Yanko not usually going and getting it himself could be unfairly prejudicial to Yanko but submits this is the only item of evidence which falls into this category. The Crown has foreshadowed that if I were to take the view it is inadmissible and unfairly prejudicial then the Crown should be given the option of not leading that part of the conversation. I am of that view; however if those two references, namely:
"… he doesn't usually go out and get it himself. He usually gets
someone else to go out and get it right."
and
"… now he does a lot of running around with a lot of other
things."
were to be omitted, I would not regard the balance of that conversation as
being unfairly prejudicial to Yanko, even if not admissible against him.
[2001] WASC 137
ROBERTS-SMITH J
Item 13: Telephone call from Pinkstone to M Brazier 06:50:39 hours,
8 October 1999 (pb 2014-2015)
Pinkstone again asks M Brazier to listen to the radio and says he will call him later to see if he hears anything. Mr Holdenson submits this conversation is inconsistent with knowledge by them that what had been sent was something legitimate. Again, even if this evidence were inadmissible against Yanko in respect of count 2, it is simply not unfairly prejudicial to him.
Item 14: Telephone call from Pinkstone to M Brazier 08:31:16 hours,
8 October 1999 (pb 2018-2019)
This is another conversation between Pinkstone and M Brazier which is specifically referable to Yanko and what happened to him the previous night. In response to Pinkstone's enquiry, M Brazier says he has heard nothing at all, although he listened to the news that morning. Pinkstone then indicates he does not know if he was on his way there; M Brazier says he presumes "this one" could well be monitored too and there is then some discussion about just because its raining the blokes would still be working inside. M Brazier says he cannot imagine why that other bloke did not get the work; he was on his way to work, it was just the rain forced him off or was he on his way home? Pinkstone says that is exactly what he does not know. Overall, it will be suggested this conversation is all about whether or not Yanko was on his way to the airport or on his way home when he was arrested by the Drug Squad, and expressing some concern about their own position.
Again, given the nature of Yanko's defence as foreshadowed by Mr Holdenson, even if evidence of this conversation is inadmissible against Yanko, I do not consider it cannot properly be isolated and disregarded by the jury in their separate consideration of the case against him.
Item 15: Telephone call from Pinkstone to M Brazier 09:00:01 hours,
13 October 1999 (pb 2044-2047)
This call is approximately a week after that at item 14. By this time Pinkstone is in Perth. The police have attempted to apprehend him at Cottesloe but he escaped in his car which he later dumped. He has telephoned M Brazier and asked Brazier to pick him up because there is "a bit of heat" behind him. At the end of this telephone call M Brazier says there are some "building inspectors" behind him and they have been
[2001] WASC 137
ROBERTS-SMITH J
behind him since he left the Carousel Shopping Centre to collect Pinkstone. He says the last thing he needs to do is to lead them to Pinkstone. Mr Holdenson says this conversation may be relied upon by the Crown as evidencing consciousness of guilt on the part of Pinkstone and M Brazier.
In my view this evidence is not admissible against Yanko in respect of count 2 but a jury could be satisfactorily directed to disregard it when considering the case against Yanko.
Item 16: Evidence concerning Pinkstone's attempted flight from the police
officers who sought to arrest him
The Crown proposes to lead the evidence of many police officers of Pinkstone's attempted flight by car and subsequently by motor cycle. There will also be surveillance evidence going to the same issue. This will be led against Pinkstone, presumably as consciousness of guilt.
I hold the same view of this as I have expressed above in relation to
item 15.
Item 17: Evidence of P Brazier and M Brazier concocting a false story concerning the purpose of P Brazier attending Perth Airport on 7 October 1999 (pb 1692-1705)
This is in particular a reference to a telephone conversation between the Braziers at 18:12:53 hours on 18 October 1999 which is a telephone call by M Brazier to P Brazier at the Canning Vale Remand Centre. At the end of a long conversation about jobs of work, the Braziers discuss P Brazier being interviewed by police sometime during the following day. M Brazier tells him that he had done nothing, that he had gone down to pick up some cash and that was all. M Brazier reiterates that is what he told his brother to do and that is the end of the story. There is some further discussion about that. The Crown will put to the jury that this part of the conversation shows the Braziers reiterating their concoction of a false story that they were expecting to receive cash in the parcel.
I would not see this evidence as being admissible against Yanko on count 2, but again the jury could be satisfactorily directed to disregard it in that context. The Crown concedes that in relation to Yanko, this evidence is irrelevant and inadmissible but contends it is not prejudicial to him. I accept that submission.
[2001] WASC 137
ROBERTS-SMITH J
Item 18: Statement by M Brazier concerning "Charlie" (pb 1706-1714)
This is a recording of a telephone call from Lisa Brazier (M Brazier's wife) to M Brazier in Canning Vale Remand Centre. There is a discussion about P Brazier having to speak to the police and then some conversation about lawyers and bail applications. M Brazier warns his wife that the police will try and make something "like they always do and twist words" and then says:
"Like he said Charlie, now you know that means cocaine, that doesn't mean cash, you know that's a load of bullshit you know."
Mr Holdenson submits it would be very open to a jury, assuming no evidence to the contrary, to find that M Brazier is there saying that when one uses the word "Charlie" one means cocaine and not cash, because if one were to assert that the word "Charlie" means cash, that would be "a load of bullshit". He says the Crown would seek to rely on that as a clear admission by M Brazier. He points out that at the preliminary hearing in November 2000, Detective Tuttle gave extensive evidence about the use of the word "Charlie" as referring to cocaine and the word "dogs" as referring to police, or surveillance police in particular. He says that what this (together with all of the other items complained of) adds up to in combination, is an extremely strong case against Pinkstone and M Brazier and perhaps to a lesser extent P Brazier, as to their knowledge of the nature of the contents of the parcel sent by Pinkstone for M Brazier and that it was in fact cocaine, described as "Charlie".
I consider the jury would have no difficulty in segregating the evidence of this conversation about "Charlie", or cocaine, from that relating to the count against Yanko, which relates to methylamphetamine. I do not consider the perceived strength of the case against M Brazier would lead the jury, by impermissible reasoning, to see that as adding strength to the different case against Yanko, in the face of the directions they will have to be given not to do that.
In the course of her submissions to me on 4 May concerning the proposition that the Crown would be entitled to lead evidence to demonstrate that Pinkstone was conducting a sophisticated drug dealing operation, Ms Archer ventured to give a concrete example. She said that there was a listening device in Pinkstone's Perth unit from which was recorded a conversation between Pinkstone and M Brazier in which they discussed the business of drug dealing and complained that other drug dealers do not do the job as well as they do (t 153-154). She said that
[2001] WASC 137
ROBERTS-SMITH J
particular evidence is directly relevant to Pinkstone's relationship with M Brazier and to prove that at the time Pinkstone was in the business of dealing drugs. Ms Archer's submission is all that is presently before me in relation to that evidence; I do not know its full content nor context and its admissibility has not been argued. Mr Holdenson said he was previously unaware of it but in light of Ms Archer's submission, would add it to his schedule as item 19.
I am prepared for the moment to assume that the evidence would be admissible against Yanko on count 2 for the reasons articulated above in reference to other evidence of Pinkstone's drug dealing activities or business, but even if it is not, I would again consider (particularly given the nature of Yanko's foreshadowed defence) that the jury could be satisfactorily given an appropriate direction in relation to it.
In light of the foregoing, (and subject to the Crown accommodating my findings in respect of item 12) I am not satisfied that on behalf of Yanko it has been demonstrated there is a real risk (as opposed to a remote possibility) that there will arise in his joint trial with his co-accused on this indictment, prejudice of the type which - if it were to arise - would result in positive injustice to him. To put it another way, it has not been demonstrated there is a real risk a joint trial would give rise to prejudice of such a nature as to prevent Yanko receiving a fair trial. His application is therefore refused.
The application of M Brazier
On behalf of both M and P Brazier, Mr Palumbo adopted the submissions made by Mr Holdenson but declined to identify the evidence which was said to be inadmissible against, or prejudicial to, either applicant.
He contended there is no nexus between the facts and the evidence at the core of the allegations giving rise to the several charges, that there is no nexus (other than Pinkstone) here as between counts 1 and 2 on the one hand and counts 3 and 4 on the other. So far as the police evidence is concerned, there were two distinct police operations and the method of intercepting the parcels was quite separate and distinct. There were two separate preliminary hearings and it was only after the four accused were committed for trial that they were brought together on the one indictment.
| 144 | Mr Palumbo further submitted that the evidence in relation to counts 1 and 2 is significantly different from the evidence admissible |
[2001] WASC 137
ROBERTS-SMITH J
against the Braziers on count 4. There is no evidence whatsoever of any association or relationship, casual, business or otherwise, between Yanko and the Braziers.
Conversely to what had been advanced by Mr Holdenson, Mr Palumbo submitted that the cases against Yanko and Pinkstone are considerably stronger than the case against the Braziers - notably, Yanko actually collected the parcel from the airport and the drug was in his possession or physical custody at the time of his arrest. There is none of that sort of evidence (he says) in relation to the Braziers.
The major thrust of Mr Palumbo's submission is encapsulated at
T 132-3:
"… although it may have been helpful to particularise each item of evidence that we say would not be admissible in relation to the Braziers, that is not the basis upon which the submissions that are before you, your Honour, are going to be made but a more, I should say, simplistic approach has been taken in relation to these matters, and that is simply to clearly identify the fact that counts 1 and 2 clearly do not relate in any way, shape or form to counts 3 and 4 and although perhaps it might be conceded that a separate trial for Paul Brazier alone may in all of the circumstances not be appropriate, it is definitely submitted that counts 3 and 4 ought be tried separately and severed from counts 1 and 2 insofar as counts 3 and 4 represent one distinct and separate operation, certainly in the eyes of the police officers involved, and simply on the facts."
In addition, Mr Palumbo submitted an important consideration is that a joint trial will involve significantly increased costs for both Braziers.
All of these submissions (including those going to joinder under s 586(7) of the Criminal Code) are effectively covered in my ruling on the applications by Yanko and P Brazier and it is not necessary to say more here. The application by M Brazier will be refused.
The application of P Brazier
Mr Palumbo says that so far as P Brazier is concerned, the evidence will be that he became involved at a late stage (on 7 October 1999) and his involvement was brief, and that out of 119 Crown witnesses (Mr Palumbo's figure) to be called on a joint trial, really only three could
[2001] WASC 137
ROBERTS-SMITH J
give any evidence which would be of any weight against P Brazier. Furthermore, it would be unrealistic to expect the jury to be able to differentiate between P Brazier's role and those of the other accused.
Mr Palumbo says that the issues in relation to P Brazier can be narrowed and "a large number of matters" can properly be agreed on a separate trial which would not be agreed on a joint trial. He foreshadowed that at trial the issues with respect to P Brazier would be knowledge of the content of the parcel and whether "the intent formed to commit the substantive offence was clearly established" (T 136). As to this last, he said it would be put that after acquiring knowledge of the contents of the package, "whether it be cash or Charlie or otherwise" P Brazier entered the Ansett terminal with the intention of disassociating himself from the whole thing and informing Detective Kanawati that he was not interested in collecting the parcel, that somebody else would do that.
The Crown does not accept that were P Brazier to be tried separately, the evidence would be nearly so limited as suggested by Mr Palumbo. Whatever the precise extent of it may be, I accept it would be significantly greater than he suggested.
Be that as it may, for the reasons already canvassed above, the fact that on a joint trial a considerable body of evidence may be led which is inadmissible against a particular accused does not of itself dictate an order for separate trials - and here Mr Palumbo has not sought to identify specifically evidence which he contends would give rise to prejudice of a type which would result in positive injustice to P Brazier.
I do not consider it at all unrealistic to expect the jury to be able to differentiate between P Brazier's role and those of the other accused and nor am I prepared to make any assumptions about what admissions might be made on a separate trial. What would be unrealistic, in my view, would be for P Brazier to be tried separately from M Brazier. And the charge against them (count 4) being properly joined with that in count 3 against Pinkstone, is then properly joined with counts 1 and 2 for the reasons already discussed.
The joinder being proper, the interests of justice prima facie call for the charges to be tried together. As with the count in respect of Yanko, these interests include considerations of expense to the community, the desirability of having related matters dealt with together and the convenience of witnesses. Nothing has been advanced on behalf of
[2001] WASC 137
ROBERTS-SMITH J
P Brazier (nor the other two applicants) to demonstrate a risk of prejudice which would result in positive injustice, such as to warrant an order for separate trials. This application too will be refused.
6
4
1