R v Pugh, Cullen & Ostermann - [2006] SADC 24

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PUGH, CULLEN & OSTERMANN
Reasons for Ruling of His Honour Acting Judge Wilson
14 March 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
Four accused charged jointly on the same information - two charged with taking part in the manufacture of methylamphetamine and possesssing methylamphetamine for sale at one place (Hahndorf) - three charged with taking part in the manufacturing of methylamphetamine at another place (Cudlee Creek) - admissibility of some evidence - whether first-named accused would be deprived of a fair trial - whether remaining admissible evidence against first-named accused is significantly weaker than and different to that admissible against the other accused and contains material highly prejduiciaal to him - whether there is a real risk that the weaker Crown case against the first-named accused will be made immeasurably stronger by reason of the prejudicial material - whether positive injustice would be caused to first-named accused in a joint trial - separate trials and severance ordered

EVIDENCE
Documentary evidence - hearsay - driver's "licence" and "birth" certificate found at premises - whether admissible to show possession by the accused as one and the same person named on the "licence" and in the certificate, being something more than a link (or connection or association) between the accused and the person named in the documents
Evidence Act 1929 (SA) s47C, referred to.
R v Tracey and Ors (No. 1) [2005] SASC 355; R v Patsalis and Spathis (1990) 107 A Crim R 423; Re Gardner; Ex parte R J Gardner Pty Ltd (1967) 13 FLR 345, applied.
R v Romeo (1982) 50 SASR 243; Semple v Noble (1988) 49 SASR 356; R v Doney (1990) 171 CLR 207; Tugaga v R (1994) 74 A Crim R 190; Llewellyn v Police (2005) 91 SASR 418, considered.

R v PUGH, CULLEN & OSTERMANN
[2006] SADC 24

Phillip Anthony Pugh (“Phillip Pugh”), Amanda Maree Bryant, Michael James Cullen (“Michael Cullen”) and Dirk Ostermann were charged on information with drug offences arising out of events which occurred and activities which took place at Hahndorf in the period prior to the 8th day of September 2003 and arising out of events which occurred and activities which took place at Cudlee Creek in the same period.
It was alleged by the prosecution that the two places, Hahndorf and Cudlee Creek, were the sites of two separate, but linked, drug-manufacturing operations.
The charges against the accused
Count 1 on the information alleges that Phillip Pugh and Amanda Maree Bryant knowingly took part in the manufacture of methylamphetamine, a drug of dependence, the date and place of the offence being between the 3rd day of March 2003 and the 9th day of September 2003 at Hahndorf.
Count 2 on the information alleges that Phillip Pugh and Amanda Maree Bryant knowingly had methylamphetamine, a drug of dependence, in their possession for the purpose of selling it to another person, the date and place of the offence being on the 8th day of September 2003 at Hahndorf.
Count 3 on the information alleges that Phillip Pugh, Michael Cullen and Dirk Ostermann knowingly took part in the manufacture of methylamphetamine, a drug of dependence, the date and place being between the 3rd day of March 2003 and the 9th day of September 2003 at Cudlee Creek.
Upon their arraignment each of the accused, save and except Amanda Maree Bryant, pleaded not guilty to the charge or each of the charges, as the case may be, against him. Amanda Maree Bryant pleaded guilty to the charge in count 1 against her, and she has been remanded for the making of sentencing submissions later. No trial of Amanda Maree Bryant in relation to the allegations in count 1 remains to be held.
Applications for separate trials
Each of the male accused, Phillip Pugh, Michael Cullen and Dirk Ostermann has applied for a separate trial as follows:
(a)     Phillip Pugh seeks an order that his trial on counts 1 and 2 be held as a trial separate from any trial of himself and his co-accused on count 3, and, specifically, seeks an order that count 3 be severed from counts 1 and 2.
(b)     Michael Cullen seeks an order that his trial on count 3 be held as a trial of himself and his co-accused on count 3 separate from any trial of Phillip Pugh on counts 1 and 2, and, specifically, seeks an order that count 3 be severed from counts 1 and 2.
(c)     Dirk Ostermann seeks an order that his trial on count 3 be held as a trial of himself and his co-accused on count 3 separate from any trial of Phillip Pugh on counts 1 and 2, and, specifically, seeks an order that count 3 be severed from counts 1 and 2.
Pursuant to rule 9 of the District Court Rules Phillip Pugh has filed applications seeking various orders for the exclusion of various items of evidence from his trial on counts 1 and 2. I have deemed it appropriate to hear and determine the rule 9 applications prior to determining the separate trial applications.
The Rule 9 applications
It is part of the case for the prosecution that a document purporting to be a “New South Wales driver’s licence” was found by police in a toiletries bag in a room of a house at Hahndorf. The Crown will seek to prove the truth (or, rather, the truth and falsehood) of various printing or writing or photographic imaging on a photocopy thereof, the original having been destroyed, and, therefore, much more than the fact that a licence document, appropriately described and identified as such, was found (see Semple v Noble (1988) 49 SASR 356).
Putting aside any question arising from the fact that the original document was destroyed and that only a photocopy remains, the material on the licence, in the absence of any other evidence, is, though prima facie inadmissible as hearsay evidence, being put forward as proof of the truth of the statement explicit in it; namely, that a person named “Scott Jones”, otherwise known as Phillip Pugh, was the possessor of the “licence” at a place of residence in Hahndorf where it was found, and the licence-holder is, therefore, identified to be the person in possession of the licence there.
It is always important to ascertain for precisely what purpose any evidence, which is under scrutiny and subject to an admissibility argument, is being tendered – R v Romeo (1982) 50 SASR 243 per Cox J at p.262.
In the present case, the purpose for which the licence is to be tendered is to prove not only the truth of the statement explicit on it; namely, that a man named “Scott Jones” is the holder of that driver’s licence, but also that a man of that name or otherwise known by that name was in possession of that driver’s “licence” at Hahndorf. It is not a legitimate forensic purpose merely to prove that a link exists between Phillip Pugh and the Hahndorf property, or an association between Phillip Pugh and the Hahndorf property.
Unless it is shown that Phillip Pugh was in some way identified as being connected with the “licence”; for example, that he had applied for the issue of it or that he had the licence in his possession at the Hahndorf property, I consider that it has no probative value as original evidence, and that its only probative value is as hearsay and, as such, is inadmissible - see Re Gardner; Ex parte RJGardner Pty Ltd (1967) 13 FLR 345 per Gibbs J, as he then was, at p.349 - see also R v Romeo supra at p.262.
A subsidiary question arises from the fact that the licence was apparently destroyed and only a photocopy remains in existence. I would not exclude the evidence upon the ground that it is only a photocopy and not original evidence. Section 45C of the Evidence Act overcomes that apparent difficulty for the Crown, the Crown being able to bring this prosecution case within the parameters of section 45C. No unfairness to the accused arises, especially as the existence of a photocopy means that something can be done to rectify and remedy the absence of the original evidence. It must be remembered, however, that the operation of section 45C cannot (and does not) make a photocopy better evidence than the original evidence of which the photocopy is a copy.
The documents labelled by police ROV55 were also destroyed by the police, but photocopies thereof remain. While section 45C provides the Crown with a way of overcoming potential inadmissibility on account of the absence (through destruction) of the original documents, I am less convinced that no unfairness arises than I was in the case of the “licence”. I accept that the destruction of the original document was inadvertent and not negligent, but the accused’s counsel would not, I think, be able to cross-examine properly as to the documents in question, and there is a real lack of forensic detail to be seen in the photocopies. Unfairness to the accused is likely to arise here, and it is likely to justify the exclusion of the evidence in question.
For these reasons, no reference is to be made to the finding (or locating) of the “licence”, (standing, as it does, alone) and to what is apparent from a visual examination thereof, that is to say, the writing, printing and/or images thereon. I emphasise the words in parenthesis : ‘standing alone’. I do so bearing in mind the principles laid down and discussed in R v Doney (1990) 171 CLR 207 and Tugaga v R (1994) 74 A Crim R 190.
I am not persuaded that any forensic purpose will be served by the tender of an assortment of various types of documents, albeit photocopies, in the names of “Mr Pugh” and “Mr Palmer”. It is not to the point that the prosecution in this instance (and unlike the situation with reference to the driver’s “licence”) does not seek to prove what is written or printed on those documents or the images appears thereon.
Another part of the case for the prosecution is that a document purporting to be a “birth” certificate of Phillip Pugh was found by police at the Hahndorf property. The Crown will seek to prove the truth of the writing and printing on a photocopy thereof (the original having been destroyed) and, therefore, much more than the fact that a document appropriately described as a certificate was found. Putting aside any question arising from the fact that the original was destroyed and only a photocopy remains, the material on the certificate, in the absence of any other evidence, is, though prima facie inadmissible as hearsay evidence, being put forward as proof of the statement explicit in it.
In the present case, the purpose for which the certificate is to be tendered is to prove not only the truth of the statements explicit in it; namely, that a man named Phillip Pugh was born on the stated date, but also that a man of that name was in possession of that certificate at Hahndorf. It is not a legitimate forensic purpose merely to prove that a link exists between Phillip Pugh and the Hahndorf property, or an association between Phillip Pugh and the Hahndorf property.
Unless it is shown that Phillip Pugh was in some way identified as being connected with the certificate, for example, that he had applied for the issue of it or had the certificate in his possession at the Hahndorf property, I considered that it has no probative value as original evidence and that its only probative value is as hearsay and, as such, is inadmissible.
In my opinion there is no impediment to the use of a photocopy in circumstances of which the original has been inadvertently destroyed. But the question of inadmissibility remains.
For these reasons, no reference is to be made to the finding (or locating) of the “birth” certificate (standing alone) and to what is apparent from a visual examination thereof, that is to say, the writing and printing thereon.
My ruling would have been otherwise if the evidence was that the driver’s licence and/or the “birth” certificate had been found or located on the accused’s person or otherwise in his possession. It is clear that, if it is shown that an accused “had access to and control over the contents of a document” those contents (what is written and/or printed thereon) may be proved against him as evidence of their truth - see Cross on Evidence (Australian Edition) para.33,510.
Likewise, my ruling would have been otherwise if the evidence was that the driver’s “licence” and/or the “birth” certificate had been produced by the accused to the police; such would be relevant, probative and admissible evidence - see Llewellyn v The Police (2005) 91 SASR 418.
The applications for separate trials
I need not deal with all the principles which govern the situation in which there are applications for separate trials. I follow and apply the law of severance (as a matter of discretion) as set out in the recent decision of the Supreme Court in R v Tracey and Ors (No.1) [2005] SASC 355 in which Nyland J applied R v Collie, Krantz and Lovegrove (1991) 56 SASR 302, R v Demirock (1976) VR 244, Webb and Hay v R (1994) 181 CLR 41, R v Darby (1982) 148 CLR 668 at p.678, R v Guldu, (1986) 8 NSWLR 12, R v Middis NSWSC, Hunt J, 27 March 1991, and R v Patsalis and Spathis (1999) 107 A Crim R 423 per Kirby J at p.434 where his Honour summarised the relevant principles as follows :
Briefly, the relevant principles are that:
1.     where the evidence for 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.
Applying what Kirby J referred to as ‘the relevant principles’ the remaining admissible evidence against Phillip Pugh, an applicant for a separate trial, is, in my view, “significantly weaker than and different to that of admissibility against the other accused” who are, at this point in time, proposed to be jointly tried with him; namely, Michael Cullen and Dirk Ostermann. In my view, the evidence against those other accused at Cudlee Creek contains material “highly prejudicial to Phillip Pugh, although not admissible against him. In my view, “there is a real risk that the weaker Crown case against (Phillip Pugh at Hahndorf) will be made immeasurably stronger by reason of the prejudicial material”. Phillip Pugh has shown, to my satisfaction, that positive injustice would be caused to him in a joint trial.
This is a case for separate trials to be ordered - see R v Domican (1989) 43 A Crim R 24 per Hunt J at pp.26-28 and R v Leslie (1989) 2 Qld R 378.
The remaining admissible evidence against Phillip Pugh is extraordinarily weak. It does not now include the driver’s “licence”; it does not now include the “birth” certificate. The purported identification evidence to the effect that a person who “looks like” Phillip Pugh was seen at the Hahndorf property coming from the shed and up to see the landlord is weak and, very likely, will be excluded based upon Doney and Tugaga principles. The finding of drugs in his blood, on his hands and in his fingernail scrapings is in no way linked to the Hahndorf property. The finding of photographs, whether of Phillip Pugh or not, is equivocal; the fact that the photograph of a person is found at a place is no proof at all that the subject of the photograph is residing at or connected with that place.
There is forensic scientific evidence purporting to identify or link each of the three accused, Phillip Pugh, Michael Cullen and Dirk Ostermann, with the laboratory alleged to have been found at Cudlee Creek. This is in stark contrast to what was found at the Hahndorf property.
For all these reasons, the application by Phillip Pugh for severance (and separate trials) is granted.
With reference to the application of Dirk Ostermann for a separate trial of count 3 and the severance of counts 3 from counts 1 and 2, I repeat my conclusions as to the inadmissibility of the evidence and the weakness of the case as against Phillip Pugh directed to counts 1 and 2.
The original residential tenancy agreement purporting to show Dirk Ostermann as the credit referee is not admissible, in the absence of any evidence to the effect that Dirk Ostermann knew that his name was being used and consented thereto, to prove his participation in a residential tenancy agreement relating to the Hahndorf property. It remains as impermissible hearsay, which is inadmissible against Dirk Ostermann.
I am persuaded by Mr Edwardson that the listing by the accused, Amanda Maree Bryant, of Dirk Ostermann as her “nearest relative or friend” is patently inadmissible as an out of court hearsay written statement giving rise to no more than speculation.
The evidence of Dirk Ostermann leaving the Hahndorf property, with a bullet being located in the vehicle of “flight”, and a sum of money also being located, comprise weak circumstantial evidence of “flight” showing, potentially, a consciousness of guilt. The comparative weakness of the evidence against Dirk Ostermann in relation to counts 1 and 2 would be sufficient to justify severance in circumstances in which severance had not been justified upon the application of Phillip Pugh.
With reference to the application of Michael Cullen for a separate trial of count 3 and the severance of count 3 from counts 1 and 2, I, as with Dirk Ostermann’s application, repeat my conclusions as to the inadmissibility of the evidence and the weakness of the case as against Phillip Pugh directed to counts 1 and 2. Mr Moffa was right to say that “there is no evidence with respect to (Michael Cullen’s) involvement in Hahndorf” and “there is no evidence against Mr Cullen whatsoever with respect to Hahndorf”. If I had not been minded to grant Phillip Pugh’s application for severance I would grant the application of Michael Cullen for severance.
I am not persuaded, at this stage of these proceedings, to conclude that the evidence of Dirk Ostermann and Michael Cullen in relation to count 3 is weak. I do not characterise the prosecution case in relation to any of the accused as “an exercise in guilt by association”.
As separate trials are to be held as to counts 1 and 2 on the one hand, and count 3 on the other hand, it remains for me to consider the order in which the trials are to be held.