R v RPHJ

[2025] SASC 107

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v RPHJ & ORS

[2025] SASC 107

Reasons for Ruling of the Honourable Justice McDonald  

30 June 2025

EVIDENCE - ADMISSIBILITY - ADMISSIONS - WHO MAY MAKE - ACCOMPLICES, CO-CONSPIRATORS AND THE LIKE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENCES AND OTHER MATTERS RELATING TO CRIMINAL ORGANISATIONS

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - CONSPIRACY - SCOPE OF CONSPIRACY - CONSPIRACY TO COMMIT CRIME - EVIDENCE

EVIDENCE - ADMISSIBILITY - HEARSAY - EXCEPTIONS: NON-HEARSAY PURPOSE

Each of the accused have been charged with the offence of participating in a criminal organisation. In addition, RPHJ, GPT, Mr Hughes, Mr Harris, SAW and PJM have been charged with a conspiracy to cause serious harm. These charges arise out of an alleged formation of a conspiracy to cause serious harm to Matthew Denton.

Each of the accused made an application for the exclusion of various AN0M messages to which the accused was not a party, on the basis that they are said to be inadmissible against the respective accused. Although the interlocutory applications seek exclusion of the communications, given that generally counsel accepted that the evidence was admissible to prove the existence of the conspiracy, what they were in fact seeking was a ruling that certain communications were not admissible as an exception to the hearsay rule, to prove their client’s participation in the conspiracy.

There was no dispute by any counsel that the entire body of messages is admissible for the purpose of establishing the nature of the conspiracy that the prosecution allege was formed. The objections were aimed at the use of the messages to inculpate a particular accused in the conspiracy.

During the course of the voir dire, it became apparent that counsel for the accused had mistakenly assumed that the prosecution sought to rely on evidence of AN0M messages in which their client did not participate, pursuant to the co-conspirators rule. Once it became apparent that this was not the case, a number of the accused subsequently abandoned or at least modified their applications.

Given the limited use to which the prosecution puts the messages, and the ability to control the potential misuse through careful reasoning, there is no basis upon which to grant any of the extant applications by the accused, to exclude or further limit the use of the messages against them.

Held:

1.    The AN0M communications will be admissible against each of the relevant accused to prove the nature and the extent of the conspiracy and the existence of a criminal organisation.

2.    The messages will also be admissible against the accused who were involved in a particular communication as part of the body of direct evidence relied upon by the prosecution to implicate them in one or both of the offences.

Criminal Law Consolidation Act 1935 (SA) ss 23(1), 83E, referred to.

R v Aston (1987) 44 SASR 436; Ahern v The Queen (1988) 165 CLR 87; R v Newland [1954] 1 QB 158; R v Trudgeon (1988) 39 A Crim R 252; Director of Public Prosecutions v Doot [1973] AC 807; R v Saffron (1988) 17 NSWLR 395; R v Minuzzo and Williams [1984] VR 417; Tripodi v The Queen (1961) 104 CLR 1; Police v Dunstall (2015) 256 CLR 403; Catanzariti v The Queen [2021] SASCA 110, applied.
R v Dellapatrona (1993) 31 NSWLR 123; R v Price (No 7) [2024] NSWSC 453; Director of Public Prosecutions (Cth) v Kola (2024) 279 CLR 104, distinguished.

R v Masters (1992) 26 NSWLR 450; R v Pektas [1989] VR 239; R v Lee (1950) 82 CLR 133; Dietrich v The Queen (1992) 177 CLR 292; R v Corack and Palmer (1982) 30 SASR 404; R v Jackson and Hakim (1987) 30 A Crim R 230, discussed.

R v RPHJ & ORS
[2025] SASC 107

Criminal:   Application

McDONALD J.

1. Each of the accused have been charged with the offence of participating in a criminal organisation.[1]  In addition, RPHJ, GPT, Mr Hughes, Mr Harris, SAW and PJM have been charged with conspiracy to cause serious harm.[2]  These charges arise out of an alleged formation of a conspiracy to cause serious harm to Matthew Denton.  That conspiracy manifested itself in three separate plans to shoot Mr Denton.  The motive that resulted in the formation of the conspiracy, was an unpaid drug debt to the Comancheros Outlaw Motorcycle Gang (‘the Comancheros’).  It is the prosecution case that each of the accused also participated in a criminal organisation, the Comancheros, by directing, supporting and committing an offence or offences for the benefit of the Comancheros, knowing or being recklessly indifferent as to whether their participation contributed to the occurrence of criminal activity.

   [1]    Criminal Law Consolidation Act 1935 (SA) s 83E(1).

   [2]    Criminal Law Consolidation Act 1935 (SA) s 23(1).

2. The evidence upon which the prosecution relies, falls predominantly into two categories.  These are messages sent between a number of the accused and others on the AN0M platform and surveillance evidence.[3]  In addition to this, although of less relevance on this application, there is some limited DNA evidence and expert evidence about outlaw motorcycle gang (‘OMCG’) culture.

   [3]    This comprises both ground surveillance and aerial surveillance by Police. 

3. It is necessary to say something about the AN0M communications network.  On or about 30 August 2018, the Australian Federal Police (‘AFP’) commenced a covert investigation involving the collection of communications exchanged over an encrypted communications network known as AN0M.  The AN0M communications network provided an end to end encrypted messaging capability between the users of the network. The AFP began gathering data from the AN0M devices under the authority of a warrant issued to the AFP under the Surveillance Devices Act 2004 (Cth) on 16 October 2018.

4. AN0M was a subscription based service requiring the purchase of smartphones which were specifically configured to communicate on AN0M.  Only handsets that were set up accordingly could participate on that platform.  A user could only obtain a handset from a distributor of AN0M devices.  The AN0M application was disguised as a functioning calculator.  A phone would give the appearance of a standard mobile phone to any user not familiar with the AN0M program.  Users could send text messages, photos, short videos and record voice clips similar to other social networking platforms.

5. Five of the accused possessed and used AN0M devices, three did not.

6. Each of the accused has made an application for the exclusion of various AN0M messages to which the accused was not a party, on the basis that they are said to be inadmissible against the respective accused.[4] 

   [4]    Although the interlocutory applications seek exclusion of the communications, given that generally counsel accepted that the evidence was admissible to prove the existence of the conspiracy, what they were in fact seeking was a ruling that certain communications were not admissible as an exception to the hearsay rule, to prove their client’s participation in the conspiracy.

7. At the time of filing those applications the conspiracy that was alleged against RPHJ, GPT, Mr Hughes, Mr Harris, SAW and PJM was a conspiracy to murder.  The landscape significantly changed for each of those accused when the prosecution laid a new Information with the charge of conspiracy to cause serious harm, and elected to no longer proceed with the conspiracy to murder.  In addition, during the course of the voir dire, it became apparent that counsel for the accused were under the misapprehension that the prosecution sought to rely on evidence of AN0M messages in which their client did not participate, pursuant to the co-conspirators rule.  Once it became apparent that this was not the case, and for reasons that I will come to, a number of the accused subsequently abandoned or at least modified their applications.

   Conspiracy and the co-conspirators rule

8. Before considering the evidence that is the subject of each of the applications, and the manner in which the legal argument unfolded, it is convenient to set out the relevant principles in relation to the law of conspiracy and the co-conspirators rule.

9. A conspiracy is an agreement between two or more people to commit an intended crime.  A conspiracy is not however limited to the initial making of the unlawful agreement.  It may exist for a moment or it may exist for years.  Conspirators may come and go; their involvement may be short-term or it may be for the entire period of the conspiracy.  That is in fact the nature of the conspiracy that is alleged by the prosecution in this case, with some accused remaining involved throughout and with others stepping in to join the conspiracy when required for a particular purpose.  To prove its case, the prosecution must prove that:

   i)There was a conspiracy or an agreement to cause serious harm to Mr Denton;

   ii)That the particular accused, at some point, joined in that conspiracy; and

   iii)When that accused joined the conspiracy, he intended that serious harm should be inflicted upon Mr Denton by himself, by one or more of the other conspirators, or by someone at their behest.

10. It is not necessary for all of the conspirators to know all of the details of the plan; they do not need to know everything that is to happen and they do not need to know everyone to be involved.[5]  It must be proved however, that they knew the essential features of the plan, and intended that the plan be carried out.

    [5]    R v Aston (1987) 44 SASR 436 at 439-440.

11. In order to establish the existence and scope of a conspiracy, evidence is admissible of acts done or statements made by co-conspirators, even if they were made in the absence of the particular accused.  This is not to prove the truth of what was said but in order to establish, from the fact that the acts were done and/or the statements were made, the inference that the agreement which constituted the conspiracy had been made.[6]  That evidence is not hearsay but direct evidence of the existence and nature of the conspiracy.

    [6]    Ahern v The Queen (1988) 165 CLR 87 at 93-94.

12. It has also not been disputed that, as a general proposition, statements by co-conspirators made in the absence of an accused, but in furtherance of the conspiracy, may be admissible against the accused in order to establish the accused’s participation in the conspiracy.  Before that evidence can be admitted, the prosecution must establish that the conspiracy existed and that there is reasonable evidence, independent of those statements, of the accused’s participation in it.  This is known as the co-conspirators rule.  Once a judge has decided that there is such reasonable evidence of participation in the case against an accused, the acts or statements done or made in the absence of the accused, in furtherance of the conspiracy, will become admissible against that accused as establishing their participation in the conspiracy.

13. These broad statements of principle can be broken down into a number of separate issues that have arisen for consideration during the course of submissions on these applications:

    1.What must the prosecution prove to establish that there was a conspiracy to cause serious harm?

    2.What amounts to reasonable independent evidence of participation?

    3.What is an act or statement in furtherance of a conspiracy?

    4.In circumstances in which a new co-conspirator enters into the agreement, do statements made or acts undertaken previously become admissible against the new participant, under the co-conspirators rule?

    5.In the event that the prosecution can satisfy the test for the admissibility of the evidence, does the Court retain a discretion to exclude (or to decline to admit) the evidence on the basis that its admission would be unfair to the accused?

    1.     What must the prosecution prove to establish that there was a conspiracy to cause serious harm?

14. The essence of conspiracy is agreement.  A “conspiracy consists of agreeing or acting in concert to achieve an unlawful act or to do a lawful act by unlawful means”.[7]  To be liable as a conspirator, an accused must have an intention that an unlawful act take place.  The agreement consists in the manifestation of a common intention that the unlawful act occur.[8]

    [7]    R v Newland [1954] 1 QB 158 at 166.

    [8]    R v Trudgeon (1988) 39 A Crim R 252 at 256.

15. Conspiracy is a crime of duration, a continuing offence which lasts as long as it is being performed.[9]  It remains a single conspiracy no matter who joins or leaves, as long as there are at least two participants at any one time acting in combination to achieve the same criminal objective.[10]  A person may join a conspiracy after it has started, and likewise, a person may leave a conspiracy while the conspiracy is still in operation; so long as the agreement or conspiracy continues, persons may join it late, or leave it early, and still be party to the same conspiracy.

    [9]    Director of Public Prosecutions v Doot [1973] AC 807 at 823, 827.

    [10] R v Saffron (1988) 17 NSWLR 395 at 421-422.

16. As an agreement is central to the notion of a conspiracy, it follows that there must be evidence that the parties had knowledge of the nature and extent of the conspiracy to which they each joined.  As particularised in this case, it is therefore necessary for the prosecution to prove that the accused had knowledge that they were participants in a conspiracy to cause serious harm.  It would not be sufficient for the prosecution to establish that an accused believed that they were participating in a conspiracy to commit some lesser crime, for example, to extort a drug debt.

17. As Lee CJ observed in R v Trudgeon:[11]

    … merely because persons are engaging in unlawful activities and even have dealings with each other therein – that is make agreements to do various things – is of itself no warrant to look at their overall activities and impute to them an agreement with each other and a mutual intention to achieve the general unlawful object suggested by the totality of their individual unlawful practices.  When conspiracy is charged an agreement between the conspirators to achieve the object alleged must be shown.

    (Emphasis in original)

    [11] (1988) 39 A Crim R 252 at 264.

    2.     The co-conspirators rule - what amounts to reasonable evidence of participation?

18. Before conversations that have taken place in the absence of an accused can be used in order to establish the accused’s participation in a conspiracy, there must first be “reasonable evidence” of that participation,[12] that is, evidence independent of acts and statements by other persons made in the absence of the accused, which is admissible in the ordinary way against the accused.[13]  In some instances, that evidence may be of such weight that, of itself, it will be sufficient to prove beyond reasonable doubt that the accused participated in the conspiracy.  In other cases, it may be necessary to rely on acts or statements made by co-conspirators in the absence of the accused. 

    [12] Referred to also as evidence of “preconcert” or “combination”.

    [13] Ahern v The Queen (1988) 165 CLR 87 at 100.

19. As the evidence is led for the purpose of proving the truth of the assertion or implied assertion, it would ordinarily be excluded as hearsay, unless admissible on some other basis.  The co-conspirators rule is an exception to the rule against hearsay.  In Ahern v The Queen,[14] the Court explained the rationale behind the admissibility of evidence of this nature:[15]

    That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: Tripodi. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime.

    (Footnote omitted)

    [14] (1988) 165 CLR 87.

    [15] Ibid at 94-95.

20. In considering whether there is reasonable evidence of participation, the agreement or understanding must relate to the conspiracy that is the subject of the charge.  As stated by Starke J in R v Minuzzo and Williams:[16]

    It must be accepted, I think, that any understanding between the alleged conspirators cannot be the basis for allowing in evidence of acts and declaration of one accused to be evidence against another.  The agreement or understanding must surely be of some relevance to the conspiracy charged.

    (Emphasis in original)

    [16] [1984] VR 417 at 436.

21. In Ahern, the Court in approving the test adopted in Tripodi said:[17]

    Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant.

    (Emphasis added)

    [17] Ahern v The Queen (1988) 165 CLR 87 at 100.

22. It was submitted by counsel for various of the accused that it is therefore necessary that on the facts of this case “reasonable evidence” of participation must be evidence of the participation of the accused in the offence of causing serious harm.

23. Initially, when the accused were charged with conspiracy to murder, it was contended by their counsel that given the unique nature of the offence of murder, it was necessary for the reasonable independent evidence of participation, to be evidence of participation in the offence of murder and no lesser offence.  That was said to be on the basis that conspiracy to murder requires an intent to kill.

24. As a consequence of the change in the nature of the conspiracy relied upon by the prosecution, it is now accepted by all parties that on the facts of this case, the reasonable evidence of participation must be in relation to the offence of causing serious harm with intent to cause serious harm. 

    3.     What is an act or statement in furtherance of a conspiracy?

25. It is not any statement that is made by a co-offender that is rendered admissible by the co-conspirators rule.  The act done or statement made, must have been in “furtherance of the conspiracy”.  In Tripodi, the distinction was drawn between such actions and statements, and something said which is no more than a narrative statement.  The Court explained the rationale underpinning this distinction:[18]

    … It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others.  From the nature of the case, it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the criminal enterprise.  Usually, the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts. …

    [18] Tripodi v The Queen (1961) 104 CLR 1 at 7.

1. It is not always straight forward to determine whether conduct or statements are made in furtherance of a conspiracy or criminal venture.  It may be that considered in isolation, it may take the appearance of a narrative statement, however considered in a broader context, taking into account other statements and conduct it may be that it is more nuanced and was in fact made in furtherance of the conspiracy.  Ultimately it is a question of fact and inference to be determined in the broader context of the totality of the prosecution case.

   4.     In circumstances in which a new co-conspirator enters into the agreement, do statements made or acts undertaken previously become admissible against the new participant, under the co-conspirators rule?

2. Central to the determination of this issue is the notion of implied authority, that is created by the common objective of conspirators.  Anything said or done by one conspirator in pursuit of that objective may be treated as having been said and done on behalf of another conspirator (assuming that reasonable evidence of participation has been established).

3. In Ahern, the Court observed that “[t]he implied authority on the part of one conspirator to act or speak on behalf of another will only arise if the latter is part of the combination”.[19]  Logically, it follows that implied authority can only be granted at the point at which the new conspirator joins in on the conspiracy. 

   [19] Ahern v The Queen (1988) 165 CLR 87 at 95.

4. In R v Masters,[20] two of the three accused in a conspiracy trial (Masters and Wunderlich) were alleged to have been recruited to join an existing conspiracy of which the third (Richards) was already a member.  Evidence was led of three conversations between Richards and another of the existing members of the conspiracy.  Two of the conversations took place before Masters and Wunderlich were recruited and one after.  On appeal, the admissibility of the three conversations was challenged.  The Court determined that each of the conversations, including the two that took place prior to Masters and Wunderlich joining, were admissible to establish the nature of the conspiracy itself.  When used for that purpose no question of hearsay arose.  The conversations were original evidence of the existence and parameters of that conspiracy.  The first two conversations were not, however, found to have been admissible, pursuant to the co-conspirators rule, to prove the participation of Masters and Wunderlich in the conspiracy.  In support for the contention that these earlier conversations were not admissible for that purpose, the Court relied on the notion of implied authority and relied upon the reasoning in Ahern and Tripodi.  The Court observed that:[21]

   The principle behind the rule, it was said, was one of agency.  The giving of an authority to an agent, it might be thought, suggests an authority for that agent to act or speak on behalf of the principle in the future, not an adoption or ratification for acts done in the past before that person became the agent of that principal.

   [20] (1992) 26 NSWLR 450.

   [21] R v Masters (1992) 26 NSWLR 450 at 462.

5. The Court went on to illustrate the point:[22]

   A simple example will make our point clear.  The statement made by conspirator A to conspirator B, subsequent to the formation of the conspiracy and in furtherance of it, that he proposed to hire the accused C to carry out that conspiracy is not, in our view, admissible against accused C as evidence of its truth (and thus of C’s subsequent participation in it) even though the judge may have decided that there was reasonable independent evidence of that subsequent participation.  This was not an issue decided by the High Court in Ahern v The Queen, but that Court’s justification of the admissibility of such evidence being the principle of authority or agency necessarily denies the admissibility of such evidence for that purpose in this example.  Such statement would, however, become admissible against C as evidence from which the existence of the conspiracy may be inferred.  It would be necessary for the trial judge in such a case to instruct the jury carefully upon the limited purpose for which the evidence was admissible: see Ahern v The Queen at (104).

   5.     Even if the prosecution can satisfy the test of reasonable evidence of participation necessary for the admissibility of the evidence, does the Court retain a discretion to decline to admit the evidence on the basis that its admission would be unfair to the accused?

   [22] Ibid at 463.

6. During the course of submissions, a number of counsel contended that in the event that it was found that there was reasonable evidence of preconcert, such that the co-conspirators rule applied, there remained a discretion to exclude the AN0M communications on the basis that to do otherwise would result in an unfair trial.  The primary authority relied upon in support of this submission was a judgment of the New South Wales Court of Criminal Appeal of R v Masters.[23] 

   [23] (1992) 26 NSWLR 450.

7. Before coming to Masters, it is useful to return to Ahern and the High Court’s consideration of the need to establish the existence of “reasonable evidence” of participants before statements made in the absence of an accused can be used to establish their participation in the conspiracy.  In the course of discussing the required degree or standard of proof of evidence from another source, the Court compared the use of the phrase “prima facie evidence” in some of the authorities with “reasonable evidence” as referred to in others.  In arriving at the decision that the test of “reasonable evidence” was the appropriate test, the Court said the following:[24]  

   … The words “reasonable evidence” have provided a standard which has been applied without difficulty in this country for some years, at least in cases where preconcert has been the basis upon which evidence has been led in cases other than conspiracy, and there is no reason to suppose that if it has provided an appropriate test in those cases, it will not do so where conspiracy is charged. If there is any difference between “reasonable evidence” and “a prima facie case”, which in this context we very much doubt, then the words “reasonable evidence” are to be preferred providing, as they do, a test of admissibility for which no more precise expression is needed. The aim in limiting the use which might be made of a co-conspirator’s acts or declarations is to exclude such evidence when its admission might operate unfairly against an accused. For this purpose, the element of discretion implicit in the term “reasonable evidence” is desirable.

   (Emphasis added)

   [24] Ahern v The Queen (1988) 165 CLR 87 at 100.

8. Implicit in those observations, is a view that the test of “reasonable evidence” of participation permits the Court to retain a degree of discretion as to whether there is an appropriate foundation upon which to depart from the ordinary prohibition against hearsay evidence.  For the Court to determine that there is “reasonable evidence” upon which to admit the evidence is a tacit finding that the evidence is of a standard that warrants its admission against the accused.  The judgment in Ahern indicates that there is a discretionary component in the concept of “reasonable evidence’.  The judge is not called upon to make an exclusionary ruling but a final inclusionary ruling.[25]  Therefore, the test of itself incorporates a protection against an accused receiving an unfair trial. 

   [25] R v Pektas [1989] VR 239 at 251 per Murphy J.

9. In R v Pektas,[26] the Full Court of Victoria gave consideration to the practicalities of applying the “reasonable evidence test”.  In particular, whether the Court would have to decide issues of credit, probabilities, inferences, reliability and issues of conflict.  In separate judgments, Murphy, Gray and Vincent JJ all found that “reasonable evidence” meant something more than a prima facie case. 

   [26] [1989] VR 239.

10. In his Honour’s judgment, Vincent J discussed the rationale underpinning the preference for a test of “reasonable evidence” over “prima facie” evidence.  His Honour explained that the concept of “reasonable evidence” refers to evidence, independent of the acts and declarations of alleged co-conspirators,[27] which at a minimum is capable of supporting a finding that the accused was a participant in the unlawful enterprise, that is, it is required that a prima facie case be made out independently of those acts and declarations.   Vincent J discussed why the test was something other than that the evidence established a prima facie case.  His Honour said:[28]

    … the term prima facie case was not employed as the court was concerned with the possibility that a strict (or mechanical) application of a test of this type might, in some circumstances, result in unfairness being suffered by an accused. Accordingly it was considered desirable to use language which incorporated the notion of judicial discretion. The trial judge would be able in appropriate circumstances to exclude such a use of the evidence although all of the prerequisites were otherwise satisfied. I consider that this discretion might be called into play for example where the evidence to which the trial judge has had regard in deciding whether a prima facie case of participation has been made out is itself the subject of dispute.

    [27] Ibid at 270.

    [28] Ibid at 270.

11. It is clear that in Pektas, the Victorian Full Court understood that in Ahern the High Court was not referring to some form of residual discretion but that there remains an element of discretion that was inherent in the test of “reasonable evidence”. 

12. In R v Masters,[29] the Court discussed the test set out in Ahern, and what was necessary before a trial judge could be satisfied of the existence of “reasonable evidence” of participation, in determining whether to admit the evidence pursuant to the co-conspirators rule.  Whilst it was accepted that the first step was for there to be a finding of a “prima facie case”, the Court went on to say that such a determination was not a direct or inevitable route to admissibility, as there remained a discretion to decline to admit the evidence on the basis that it was unfair to the accused.  The Court explained the process of reasoning in the following terms:[30]

    When it is necessary for the trial judge to give a formal ruling upon the existence of “reasonable evidence”, he or she will have to be satisfied first that there is a prima facie case against the particular accused that he participated in the conspiracy, based upon evidence which is independent of the acts or statements of co-conspirators.  That decision should be reached in the same way as is the decision that an accused has a case to answer.  If there is such a prima facie case, the trial judge should nevertheless then exercise a discretion as to whether the application of the “co-conspirator” rule should be rejected because, by making the evidence of those acts or statements admissible against that accused, its application will operate unfairly against him.

    That discretion should be exercised in the same way as the usual discretion to exclude confessional and other evidence where its use against the accused would result in an unfair trial for the accused: Cleland v The Queen (1982) 151 CLR 1 at 5-6, 18, 33; that is – unfair because its reliability has been affected: McDermott v The King (1948) 76 CLR 501 at 513; R v Lee (1950) 82 CLR 133 at 150-151; Cleland v The Queen (at 9, 19, 33); or unfair because the evidence otherwise has little weight but is gravely prejudicial to the accused, as is excluded in identification cases: Alexander v The Queen (1981) 145 CLR 395 at 402-403, 411, 417-418, 433. There are obviously other categories of evidence which, if admitted against an accused, will result in an unfair trial for him.

    [29] (1992) 26 NSWLR 450.

    [30] Ibid at 466.

13. The majority did, however, issue a word of caution about the exercise of an “unfairness discretion” in the context of a consideration of whether there is “reasonable evidence of preconcert”.  It said:[31]

    The discretion should not ordinarily be exercised to reject the application of the “co-conspirator” rule simply because there may be some shortcomings in the evidence of the acts or statements of the co-conspirators, or because the accused against whom the rule is to be applied has not had the opportunity to cross-examine them or because the evidence of those acts and statements is uncorroborated.  Those are all matters which would usually be made the subject of appropriate directions to the jury: Ahern v The Queen (at 104-105). In accordance with authority, the onus in relation to the exercise of that discretion lies upon the accused, not upon the Crown: R v Lee (at 152-153); Wendo v The Queen (1963) 109 CLR 559 at 565; MacPherson v The Queen (1981) 147 CLR 512 at 518-520; Cleland v The Queen (at 19).

    [31] Ibid.

14. There are a number of issues that arise from this discussion of an unfairness discretion in the context of the test of reasonable evidence of participation.  The test is one of admissibility.  It is for the prosecution to satisfy the Court that the test has been satisfied.  Ordinarily, any question of a discretion to exclude requires the defence to satisfy the Court that such a discretion should be exercised.  Although not entirely clear, in Masters, the Court appears to suggest that the unfairness discretion sits within the test for admissibility, however then immediately goes on to discuss the application of the usual discretions to exclude evidence on the basis of unfairness. 

15. In support of this approach, reliance is placed on Ahern.  However, in Ahern, there is no discussion of a discretion to exclude, but rather, that the consideration of fairness forms part of the assessment of whether the evidence amounts to “reasonable evidence” of participation.  This involves an evaluation exercise in order to determine what is “reasonable” on the facts of a particular case. 

16. It was also submitted by the prosecution that any consideration of an unfairness discretion as discussed in Masters, must occur in the context of the High Court decision in Police v Dunstall,[32] which was handed down 27 years after Masters.

    [32] (2015) 256 CLR 403.

17. In Dunstall, special leave was granted because the appeal was said to raise a question of general importance, namely, whether there is a general discretion to exclude evidence on the ground that its reception would be unfair.  There was however, no dispute that such a discretion existed, the real issue that arose on the appeal was as to the nature and extent of such a discretion.

18. In considering the issue, the majority observed that the exclusion of evidence in the exercise of a “fairness discretion” is generally understood to refer to the principles explained in R v Lee.[33]  The Lee discretion however, forms part of the special body of rules that apply to the admission of confessional statements.  The Court identified that there are two settled bases for the discretionary exclusion of non-confessional evidence.  They explained what those bases were:[34]

    … The first is where the probative value of the evidence is outweighed by the risk of prejudice to the defendant (the Christie discretion). The second is where the evidence has been tainted by illegality or impropriety on the part of the law enforcement authority (the Bunning v Cross discretion). The rationale for the latter discretion is not so much a concern with fairness to the defendant as with the public policy of not giving the appearance of curial approval to wrongdoing on the part of those whose duty is to enforce the law.

    (Footnotes omitted)

    [33] (1950) 82 CLR 133.

    [34] Police v Dunstall (2015) 256 CLR 403 at [26].

19. The Court was asked to consider whether, in addition to these grounds for the discretionary exclusion of evidence in criminal proceedings, there is a residual common law discretion to exclude admissible evidence on the ground of unfairness.  The Court ultimately determined that given the issues on appeal, and the fact that neither party contested the existence of the “general unfairness discretion”, it was inappropriate to determine the scope of a residual discretion to exclude lawfully obtained, probative, non-confessional evidence that is unaffected by impropriety or risk of prejudice, on the ground that the admission of the evidence would render the trial of an accused an unfair trial.[35] 

    [35] Police v Dunstall (2015) 256 CLR 403 at [47].

20. Having said that, the majority did however make some observations that would suggest that if such a residual discretion does exist, it arises in only very limited circumstances.  The majority observed:[36]

    … putting confessions to one side, it is not easy to think of circumstances in which the grounds for the exercise of the residual discretion would not fall within the more specific principle that evidence will not be admitted where its prejudicial effect exceeds its probative value. …

    [36] Ibid at [31].

21. Two examples were considered.  The first was where the weight and credibility of the evidence cannot be effectively tested.  The second example was where the evidence was excessively inflammatory, such as in the case of gruesome photographs.  It was determined that the latter example would however, fall within the Christie discretion. 

22. Mr Dunstall relied upon the first example and called in aid Gaudron J’s discussion of fairness and its application to the rules of evidence in Dietrich v The Queen:[37]

    Speaking generally, the notion of “fairness” is one that accepts that, sometimes, the rules governing practice, procedure and evidence must be tempered by reason and commonsense to accommodate the special case that has arisen because, otherwise, prejudice or unfairness might result. Thus, in some cases, the requirement results in the exclusion of admissible evidence because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted, either because its weight and credibility cannot be effectively tested or because it has more prejudicial than probative value.

    (Footnotes omitted)

    [37] (1992) 177 CLR 292 at 363.

23. Dietrich, and Gaudron J’s analysis were concerned with the power of the Court to stay proceedings to prevent an unfair trial.

24. As I have said, given the concession made by the parties in Dunstall, the Court did not need to conclusively determine the breadth of the scope of a residual unfairness discretion.  The majority did however make the following observation:[38]

    It remains to observe that the power of the court to prevent unfairness arising from the continuation of criminal proceedings that are oppressive or unjust involves a test of fairness that requires the court to balance the interests of the defendant and those of the community. Where the evidence that is sought to be excluded is critical to the prosecution case and the basis of exclusion is said to be that admission of the evidence would render the trial unfair, the remedy lies in determining whether the circumstances justify a permanent stay and not in circumventing that inquiry by the exclusion of the evidence in the exercise of a “general unfairness discretion”.

    [38] Ibid at [48].

25. This would suggest that given the possible remedy of a stay of proceedings, the ambit of any remaining residual discretion remains very narrow indeed.

26. Counsel have been unable to identify any other authority in which there has been any meaningful discussion of the application of this discretion in the context of the admission of evidence pursuant to the co-conspirators rule. 

27. Ms Abbey KC identified three decisions in which reference has been made to in Masters. These were R v Dellapatrona,[39] R v Price (No 7),[40] and Director of Public Prosecutions (Cth) v Kola.[41] 

    [39] (1993) 31 NSWLR 123.

    [40] [2024] NSWSC 453.

    [41] (2024) 279 CLR 104.

28. In Dellapatrona, the New South Wales Court of Criminal Appeal relied on the discussion in Masters about what is meant by the phrase “reasonable evidence”.  The Court in Dellapatrona summarised the approach to be taken in making such an evaluation:[42]

    … that decision by the trial judge should be reached in the same way as in the decision that an accused has a case to answer. If there is a prima facie case of the participation of the particular accused based upon evidence which is independent of the acts or statements of co-conspirators not otherwise admissible against that accused, the judge must then exercise a discretion as to whether the application of the co-conspirator rule should nevertheless be rejected because, by making the evidence of those acts or statements admissible against that accused, its application will operate unfairly against him. The way in which that discretion should be exercised is discussed in R v Masters (at 466).

    [42] R v Dellapatrona (1993) 31 NSWLR 123 at 152.

1. Dellapatrona was not however, a case in which the exercise of the discretion was an issue for consideration or determination.

2. Similarly, in Price, although the New South Wales Supreme Court cited Masters in passing, there was no discussion of the unfairness discretion or its application.

3. The final decision raised by Ms Abbey KC as “discussing or referring” to Masters, was the High Court decision in Kola.  In that decision, Masters (along with other decisions) was footnoted as authority for the proposition that “[a]t common law, on a charge of conspiracy, evidence of the acts and declarations of each of the co-conspirators, even if engaged in each other's absence, is admissible to prove, by inference, the existence of the conspiratorial agreement, including its nature and scope”.[43]That much is not contentious.  Not only is that the only reference to Masters, but nowhere in the judgment is there any reference to, or consideration of, an unfairness discretion.

   [43] Director of Public Prosecutions (Cth) v Kola (2024) 279 CLR 104 at [44]. Footnotes omitted.

4. Although Ms Abbey KC cited these authorities referring to Masters, there was no suggestion that there has been any reported decision in which a Court has determined to exercise its discretion to decline to admit the evidence on the basis that to do so would be unfair on an accused.[44]

   [44] Although no authorities were identified in which the unfairness discretion has been exercised in the context of the application of the co-conspirators rule, Senior Counsel for SAW, Ms Abbey KC, brought to my attention three decision in which Masters was cited. R v Dellapatrona (1993) 31 NSWLR 123; R v Price (No 7) [2024] NSWSC 453; Director of Public Prosecutions (Cth) v Kola (2024) 279 CLR 104.

   Overview of the prosecution case

5. The prosecution allege that all eight accused were the members or participants in an organised criminal group, the Comancheros and the first to sixth accused conspired to cause serious harm to a debtor of that organisation. 

6. It is the prosecution case that RPHJ, GJS and GPT were members of the Comancheros.  RPHJ held the position of the Sergeant at Arms of the South Australian Chapter.  MJP was a former member who remained a close associate of the Comancheros.

7. PJM, Mr Hughes, Mr Harris and SAW were not members of the Comancheros, but the prosecution case is that they participated for the benefit of the organisation.  Each of them lent their assistance to the common enterprise.  They therefore took part in the affairs of the organisation.

8. In some respects, the prosecution case against the eight accused is relatively straight forward.  It commences with the main protagonist, RPHJ, holding some animus towards the target of the conspiracy, Mr Denton, on the basis that he owed a drug debt to the club of about $300,000 that had been outstanding for some time.

9. As time passed, and the debt remained unpaid, RPHJ formed the belief that his position as Sergeant at Arms was at risk as a consequence of his failure to enforce the repayment of the debt.  It is the prosecution case that RPHJ needed to make an example of Mr Denton in order to reinforce his authority as the Sergeant at Arms and to show that he, and the club, were not to be disrespected.

10. It is alleged that the conspiracy was formed by 10 January 2021 and continued until 6 June 2021.  The initial conspirators were RPHJ and PJM.  GPT, Mr Hughes, Mr Harris and SAW joined in on the conspiracy in May 2021.

11. In presenting its case, the prosecution have divided the relevant sequence of events into five chapters: Chapter 1 – Background and Motive; Chapter 2 – Preparations; Chapter 3 – The First Attempt; Chapter 4 – The Second Attempt; Chapter 5 – The Third Attempt.  It is convenient to adopt a similar approach.

12. “Chapter 1 – Background and Motive”, covers the period between 30 December 2019 to January 2021, during which time there are numerous AN0M communications between RPHJ, PJM and others.  These include discussions about locating Mr Denton, acquiring weapons and arranging to meet Mr Denton in order to inflict violence upon him.

13. Whilst this evidence is relevant to establishing the background and motive for the conspiracy, the events over this period do not form part of the conspiracy.

14. “Chapter 2 – Preparations”, marks the commencement of the conspiracy.  During the period between 10 January 2021 and 22 May 2021, RPHJ made it known to members and associates of the Comancheros that he was looking for Mr Denton.  On the prosecution case the following occurred over this period:

    ·There were discussions between RPHJ and PJM about acquiring vehicles and weapons for ‘jobs’.

    ·PJM confirmed that he was ‘in on’ shooting someone.

    ·PJM confirmed that he had a stolen Subaru Wagon that could be made available to RPHJ.

    ·MJP agreed that he would store the Subaru.

    ·RPHJ communicated with PJM, GPT and GJS about obtaining firearms.

    ·RPHJ arranged for GJS to collect a revolver.

    ·GJS subsequently sent RPHJ a photograph of the revolver.

    ·On the afternoon of 22 May 2021, RPHJ and PJM were seen by police to be conducting surveillance on the house that they believed was occupied by Mr Denton.[45]

    [45] The evidence will be that by this time Mr Denton no longer lived at this address.  However, it is the prosecution case that RPHJ believed he did.  For ease of reference, I will refer to the premises as Mr Denton’s house throughout the course of these reasons.

15. On the afternoon of 22 May 2021, RPHJ met with GPT and then later PJM.  At about 3.00pm, RPHJ was observed by police surveillance to get into PJM’s car.  The two men could be seen to look into a bag.  They then drove to the vicinity of Mr Denton’s house and deliberately drove past three times.

16. It is the prosecution case that by 22 May 2021, RPHJ, PJM and GPT had conspired to perform an unlawful act, namely, to cause serious harm to Mr Denton.  The agreement had been made.

17. Although on the prosecution case MJP had been involved in the arrangements, in particular by agreeing to store the Subaru, his knowledge and involvement did not go as far as amounting to joining in on the conspiracy.

18. “Chapter 3 – The First Attempt”, commenced on 23 May 2021 and continued until 25 May 2021.  It is the prosecution case that during this chapter, Mr Harris and Mr Hughes joined the conspiracy.  Neither Mr Harris or Mr Hughes possessed AN0M devices, and therefore, the prosecution relies on observations of their movements and conduct to establish their involvement in the conspiracy.

19. It is the prosecution case that over the morning and afternoon of 23 May 2021, RPHJ and GJS messaged each other to make arrangements for the delivery of a firearm.  That afternoon, RPHJ attempted to arrange the use of the Subaru through MJP.  However, he was told it was not available.  RPHJ communicated that information to GPT.

20. RPHJ subsequently arranged for PJM to provide a stolen Holden Rodeo for use in the “job tonight”.  RPHJ, PJM and GPT exchanged messages to arrange for the Rodeo to be dropped at the Seaton Ramblers Football Club for collection by associates of GPT.  To facilitate this, the keys to the Rodeo were left on top of one of the wheels, as GPT had made it plain that he did not want his associates to meet PJM.

21. The Rodeo was kept under police surveillance.  It was collected by a male at about 6.57pm and driven to an address at Ascot Park where a second male was picked up.  The car was driven to a house in St Peters, which was an Airbnb that was being rented by GPT.  The two men met with an occupant of the house on the driveway.  Although the inference is that the occupant may have been GPT, there is no direct evidence to establish who the person was. 

22. The two men then drove the Rodeo to a location only a short distance from Mr Denton’s house.  They got out of the vehicle and walked around the nearby streets.  At one point, they approached Mr Denton’s house.  They ultimately took up a position in a reserve across the street where they remained for a period of time.

23. At about 11.30pm, a marked police vehicle drove past the position where the two men were waiting.  A short time later, the two men got into a taxi and abandoned the Rodeo.

24. It is apparent from the CCTV footage from inside the taxi, that the two men were Mr Harris and Mr Hughes.  They can clearly be seen.  DNA evidence was also obtained from the steering wheel of the Rodeo that further suggest that they were the two men who laid in wait at Mr Denton’s house.

25. After fleeing the scene, Mr Harris and Mr Hughes travelled in the taxi back to GPT’s St Peters address.  It is the evidence of the events of 23 May 2021, that the prosecution rely on, to link Mr Harris and Mr Hughes to the conspiracy.  There is no evidence of any further involvement of Mr Harris and Mr Hughes after that date.

26. Although MJP was involved in communications that took place on 23 May 2021, it is not alleged that his conduct was such that he joined the conspiracy.

27. “Chapter 4 – The Second Attempt”, is alleged to have taken place between 26 May and 28 May 2021.  On the morning of 27 May 2021, RPHJ arranged for MJP to deliver the Subaru to a pre-arranged location at Kilburn.  He also arranged for GJS to provide a .32 calibre firearm.  It was necessary to access the Subaru because the Rodeo had been seized by police the night before.

28. At about 12.20pm, RPHJ collected GJS and drove him to where the Subaru had been left at Kilburn.  GJS drove the Subaru to Lockleys with RPHJ following.  The Subaru was left at Lockleys and RPHJ drove GJS to his home address.  Shortly thereafter, the two men drove back to where the Subaru had been left at Lockleys.  When they got there, RPHJ was seen to place a bag inside of the Subaru.  On the prosecution case, this bag contained the firearm that RPHJ had collected earlier from GJS.  GJS and RPHJ departed together.

29. At about 9.53pm, the Subaru was collected by an unidentified male.  There was a period where police lost observations of the vehicle.  At 11.05pm, the Subaru was seen in the vicinity of Mr Denton’s address.  It made four slow passes by the front of the house before parking nearby.  SAW was seen to walk from the vehicle and place an item in the nearby bushes.  He moved back and forth in the immediate vicinity of Mr Denton’s house.

30. At about this time, a police STAR force vehicle drove by, which resulted in SAW attempting to hide in some bushes.  The Subaru took off at speed.  The police located SAW hiding in the bushes and arrested him.  A bag containing a black scarf, gardening gloves and a mask were located where SAW was hiding.

31. A loaded .32 calibre revolver was found in the area where SAW had been seen to hide the item.  It is alleged that this was the firearm that RPHJ had earlier sourced from GJS.

32. There is no evidence to suggest that SAW had any further involvement in the conspiracy after 27 May 2021.  He, in fact, remained in custody until after the conspiracy ended on 6 June 2021.  It should also be noted that SAW did not have access to an AN0M device, and therefore, the prosecution relies on observations of his conduct and movements to establish his involvement in the conspiracy.

33. “Chapter 5 – The Third Attempt”, is alleged to have taken place between 29 May and 6 June 2021.  The participants in this chapter were RPHJ, MJP and PJM.

34. On 3 June 2021, RPHJ met PJM and put him in touch with MJP.  PJM and MJP arranged to meet at King St, Pennington.  PJM arrived at 7.07pm, at which time the prosecution allege MJP handed over a firearm.  At 7.09pm, MJP sent a message to RPHJ saying, “All done bro”.  At 7.29pm, PJM sent MJP a message thanking him, and at 8.04pm MJP responded with “All good bro can u just make sure is all wiped down bro and even the bullets thanks bro”.  PJM responded, “Yeah bro 100%”.

35. On 5 June 2021, PJM sent messages to RPHJ telling him that he was “excited” and that he had finished setting up his “alibi” for that night “just in case”.  RPHJ asked PJM “Did you try that” to which he replied, “Yeah brother had to try so I know what feels like”, “It’s killer lol” and “Yeah brother it’s good”.  RPHJ replied with “Fuck brother this one means a lot to me” and PJM responded “Either tonight or tomorrow night 100% bro.  Every dog gets there day brother”.

36. Later that evening, RPHJ forwarded the chain of messages to fellow Comancheros member, Mr Dalwood who described this as “great news”.

37. On 6 June 2021, PJM told RPHJ that he had completed his mock run.  He confirmed that everything was ready and “now to get it done”.  There was then an exchange between the two men about whether a helicopter had been conducting surveillance on PJM.

38. At 9.37pm, police arrested PJM and RPHJ was arrested the following day.

39. It is the prosecution case that the actions of PJM and RPHJ in Chapter 5 were a continuation of the conspiracy that had been formed in January 2021 with them both remaining involved throughout.  Although MJP had provided a firearm, there is insufficient evidence of his knowledge of what the firearm was to be used for, to establish his involvement in the conspiracy.

    The laying of a new Information

40. At the commencement of the voir dire, the Information before the Court contained the charges of conspiracy to murder (Count 1) and participating in a criminal organisation (Count 2).  After the first day of submissions, Monday 4 November 2024, it became apparent that it was necessary to provide counsel with some further time to adequately prepare the matter.  I determined to adjourn the argument for one day to provide counsel for the accused with an opportunity to file any additional interlocutory applications and to enter into discussions with the prosecution, in an effort to obtain further clarity about certain aspects of the prosecution case. 

41. The following afternoon, the prosecution filed a new Information with an additional, alternative charge of conspiracy to cause serious harm.  Those particularised as involved in that conspiracy were RPHJ, GPT, Ethram Ronald Hughes, Paul Leonard Harris, SAW, PJM and others unknown. 

42. The particulars of the charge of conspiracy to murder were also amended to include the works “and others unknown”.  This amendment was no doubt due to, or at least influenced by, an issue that was identified during the submission by Ms Abbey KC about the consequences of the manner in which the prosecution had particularised its case.  I will deal with that issue when I come to discuss Ms Abbey KC’s submissions.

43. On the basis of the new Information, I determined to allow counsel for the accused additional time to consider the change in the prosecution case and to reformulate their arguments.

44. The voir dire recommenced on Monday 11 November 2024.  At the outset of proceedings, Ms Abbey KC, who acts for SAW, raised an issue about whether it was in fact open to the prosecution to lay an Information with alternative forms of conspiracy.  In that context, and somewhat unexpectedly, Mr Pearce KC, who appeared for the Director, advised the Court that the prosecution no longer proposed to allege a conspiracy to murder and requested that the accused only be arraigned on Count 2 (conspiracy to cause serious harm) and Count 3 (participate in a criminal organisation).

45. Subsequent to this, counsel for RPHJ, PJM and GJS advised the Court that they were abandoning their interlocutory applications for the evidence of the non-party communications to be excluded.  Mr Wilson, counsel for PJM, indicated that he, however, preserved his position to make submissions as to the use to which the various messages could be put at the conclusion of the trial.

46. It follows that the only interlocutory applications that is necessary for me to consider at this stage are those filed by GPT, Mr Hughes, Mr Harris, SAW and MJP.

47. Before I deal with the various submissions made on behalf of the accused for the exclusion of a number of the AN0M messages, it is important to make plain that there was no dispute by any counsel that, generally speaking, the entire body of messages is admissible for the purpose of establishing the nature of the conspiracy that the prosecution allege was formed.  The objections were aimed at the use of the messages to inculpate a particular accused in the conspiracy.

    GPT

48. It is the prosecution case that GPT was a Comanchero at the relevant time, and was one of the accused who was in possession of an AN0M device.  As a consequence, the evidence relied upon by the prosecution to implicate him in the conspiracy, are the observations of his movements, and messages sent and received by him using the AN0M device.

49. Although the conspiracy is alleged to have commenced by 10 January 2021, it is not suggested that GPT joined the conspiracy until 22 May 2021, when he was involved in arrangements for the Holden Rodeo to be left for Mr Hughes and Mr Harris to collect from the Seaton Ramblers Football Club.  It is the prosecution case that GPT was the “middle man”; he was the point of contact for Mr Hughes and Mr Harris to the other co-conspirators, both before and after their attendance at Mr Denton’s house.

50. There are no communications involving GPT in Chapter 1 – Background and Motive.  The first communication that he was directly involved in was on 18 March 2021, when GPT sent RPHJ a message which said “Nother one of your fans is it brother xxx”.  There were then 13 messages between GPT and RPHJ in which they appeared to be discussing, in a light‑hearted fashion, dramas that RPHJ was having with others.  Most relevantly, at 10.15 pm, RPHJ sent a message to GPT saying, “Yeah bro best is all these dramas are not even mine but I get put in it but fuck it I don’t care add it to the list hahahh” and “Hahahhahah xxxx just need shoot one and they all will fuck up”.  GPT replied, “Yea I bet xxx” and RPHJ said, “Me you olive need really work this out because can’t trust many”.

51. This is direct evidence demonstrating GPT’s knowledge about the conflict involving RPHJ and other Comancheros at that time.  It is also relevant to establish the nature of the relationship between RPHJ and GPT.  Neither of which use requires the prosecution to rely on the evidence for a hearsay purpose.

52. On 14 April 2021, there is a single message from RPHJ to GPT in which he said, “What we was talking about the other day keep dark for now”.  That evidence is direct evidence of a similar nature to the communications made on 18 March 2021.

53. There is an important exchange that occurred between RPHJ and GPT commencing at 1.48pm on 4 May 2021.  Prior to this, earlier that morning, RPHJ had been discussing obtaining firearms with MJP.  MJP sent RPHJ an image of four firearms.  The following series of communications took place between 1.48pm and 3.44pm:

RPHJ	I’m just trying to grab this tool
RPHJ	So you don’t have to cut fown
RPHJ	Down
GPT	Yea all good we can cut 1 got 2 others that are killer and long
RPHJ	Just want to get this job done asap
GPT	K I’ll cut for ya
RPHJ	Hey have you got any that the shells will stay in it
GPT	Yeah but they only 2 shots
RPHJ	Yeah that’s all I need

1. At this point in the exchange, RPHJ forwarded the photograph that MJP had sent to him, and the conversation continued:

RPHJ	That one in pic should do
GPT	Yea that one down bottom as long as it fires both barrels they can be dogs them under & overs
GPT	Doesn’t matter if spits shells out bro u load with gloves on & I can get new pin put in it then it a new gun
GPT	Done bro I’ll cut barrel tonight for ya cum as early as u can then xxxx
GPT	So did shit get broken?
RPHJ	There doing it tomorrow
GPT	Oh yea I just bout go out grab this thing to cut u want me put it back or u want take tomorrow
RPHJ	Put is away I’m just working out plane
GPT	OK bro ill modify test & have it at the ready when its needed see ya in morning

1. This is direct evidence capable of establishing GPT’s involvement in assisting RPHJ in obtaining or modifying firearms.

1. About two weeks later, on 17 May 2021, there was a further series of communications between RPHJ and GPT that appear to relate to firearms.  During the course of that exchange, RPHJ said, “I’m trying come up tonight I want get this done this week” to which GPT replied, “OK brother let me know if u guna come I’ll get some extra rounds today if u are”.  The inference to be drawn is that this is a reference to obtaining firearms and ammunition, which is again direct evidence linking GPT to RPHJ’s plans.

2. Two days later on 19 May 2021, there was a further series of communications between RPHJ and GPT.  The first was at 10.55 am when GPT enquired, “U still cumn today cuz xxxx”.  The messages immediately following involved making arrangements to meet up.  There is also reference to GPT having been raided by police and staying in Adelaide for a couple of days until he found out what was going on.  RPHJ warned GPT to check his car for trackers.

3. On 22 May 2021, there was a further exchange between RPHJ and GPT.  Interspersed between these messages, RPHJ was also in communication with PJM.  During that exchange, GPT advised RPHJ that he was at St Peters, and they made arrangements to meet up at a café.  At 1.36pm, GPT advised RPHJ that he was six minutes away.  There is surveillance evidence that establishes that GPT and RPHJ met at approximately 1.40pm.  To put that in context, RPHJ then met up with PJM at about 3.00pm.  At that time, RPHJ got into PJM’s car and they were observed by police surveillance officers to look into a bag.  They then drove together in PJM’s vehicle to The Parade, where they were seen to do three drive‑bys of Mr Denton’s house.

4. At 3.52pm, RPHJ sent a message to GPT saying, “You haven’t been raped have you lol”.  Although it is not entirely clear what this means, it can be inferred that RPHJ was querying why he had not heard from GPT.  At 3.53pm, GPT responded, “Raped by who?”.  At 3.55pm, GPT sent a further message, “My little nigger is keen he just getting his mate round to tell him then they getting back to me”.

5. On the prosecution case, that is a significant communication.  It was contended that:[46]

   … the inference arises, from the combined force of all the evidence, including events at 572 The Parade the following night, that the reference to “my little nigger” and “his mate” is a reference to Hughes and Harris; who [GPT] recruited to carry out the murder of Denton.  In particular, [GPT’s] use of the word “nigger” is a reference to Harris who is a person of colour and Hughes (his mate). By the time this message was sent, [RPHJ] and [PJM] had made three passes of Denton’s house, and had secured the use of the revolver through [GJS] earlier that day.

   [46] FDN 382, Summary of Argument of the Prosecution at [59].

6. The following exchange then took place, commencing at 3.57pm:

RPHJ	By the blacks hahaha
RPHJ	Killa
GPT	I’ll bash there little monkey skulls in then rape them haha xxxx
RPHJ	I was just there then I left and my mate went back and he was getting out his car
RPHJ	Hahaha
GPT	Yea right sounds easy then I told him he would $ there to so they knock on door if they have to
RPHJ	Kills bro it’s most easy one
RPHJ	I’ll see you tonight when they going let you know
GPT	He let me soon see u after xxxxx
RPHJ	Ok x

1. It is the prosecution case that this series of communications relates to GPT enlisting the services of Hughes and Harris, and is a direct link between GPT and the conspiracy.  It is RPHJ seeking confirmation from GPT that his men had agreed to join in on the conspiracy.  Whilst Mr Harris and Mr Hughes were not mentioned by name, given what subsequently transpired, it gives rise to the inference that GPT had recruited them to be involved the shooting of Mr Denton. 

2. At 6.40pm, GPT received a message from a person by the name of Stavreas asking him what he was doing.  GPT replied, “Hey bro fuck all just at that place I got for weekend going see mini at 8 oclock”.  Mini is said to be a name used for RPHJ.  This message is further evidence of RPHJ and GPT planning to meet up that evening.

3. The first communication between GPT and RPHJ to take place on 23 May 2021 was at 2.16pm.  Prior to that, RPHJ had been in contact with MJP, attempting to arrange for access to the Subaru that MJP was storing for him.  He made it plain that he needed the car that night.  MJP told RPHJ that he was not going to be able to get the car for him to use that night.  In that context, at 2.16 pm, RPHJ sent GPT a message saying, “Can’t get that one till tomorrow the guys away but just waiting for this other one”.  GPT responded, “The wheels ya mean or other thing” and RPHJ clarified “Wheels”.

4. It is the prosecution case that this exchange demonstrates that GPT was now well and truly a party to the conspiracy.  His knowledge was demonstrated by his own words.

5. The next communication to take place between GPT and RPHJ was at 4.09 pm.  In between, RPHJ had been in contact with PJM to arrange for an alternative vehicle, the Holden Rodeo.

6. At 4.09pm, RPHJ sent a message to GPT, “Hey bro will be down my way by 6”.  GPT replied, “Ok bro I was just bout text u sayin it gettn late do u have some where u guns put wheels or just on side ov road”.  RPHJ sent a further two messages, “Be in a side street I’ll msg you soon” and “What area are they now bro they mite be closer to this guy”.

7. Following this, there were a series of messages between RPHJ, PJM, and a person by the name of Bubner, making arrangements to collect the car.

8. At 4.27pm, GPT sent RPHJ a message saying, “They in Seaton” and RPHJ responded, “That right were it is bro” and provided PJM’s contact details with a message, “That my mate who has it”.

9. After this, there were a number of messages between RPHJ, GPT, and PJM over the course of which there were discussions about the condition of the vehicle and where it was to be left.  PJM told GPT that it was in the car park of a football oval at Seaton with the keys on the back wheel.  At 5.37 pm, PJM sent GPT a message saying, “Make sure you burn the fuck out of it too bro.  Like really burn it good.  Also window needs a clean so might wanna take a rag and some Windex”.  The discussion surrounding the need to burn the vehicle would suggest that those who were involved in the conversation knew that it was to be used for a nefarious purpose.

10. The next relevant exchange between RPHJ and GPT commenced at 9.12pm.  To put it in context, on the prosecution case, Mr Harris and Mr Hughes had met up with GPT at the St Peters address at about 8.22pm to collect the weapon to be used to shoot Mr Denton.  By this time, they were waiting in the vicinity of Mr Denton’s house.  At 9.15pm, GPT sent a message to RPHJ which said, “Yea bro I all good my mate stopped by for bit but he cruised bout 45 min ago so yea I just laying back watching TV bro u?”.  GPT sent two further messages in which he made reference to his mate.  At 9.48pm, he sent, “Yea bro my mate just.  Called before said his mate just went out so he just waiting for him to get back”, and at 9.50pm “Yea bro for sure I might even pop up after if my mate needs a lift”.  That is the last message relied on by the prosecution for 23 May 2021.

11. The following morning, on 24 May 2021, there were a series of messages between GPT and Stavreas arranging to meet up, during the course of which GPT said “I just stopped to drop one off was just guna wait till traffic slowed up then was guna head back to my rental …”.

12. It can be inferred from that statement that GPT was referring to either Mr Harris or Mr Hughes.

13. As previously mentioned, there is evidence that a taxi dropped Mr Hughes and Mr Harris back to GPT’s rental property sometime after about 11.30pm.   On the prosecution case, after their involvement in the conspiracy was completed, Mr Harris and Mr Hughes left the firearm with GPT at his rental property.  At 5.02pm on 25 May 2024, GJS sent GPT a message which said “Hey bro mini [RPHJ] text me ask me to pick up that tool off u I’ll be free just after 6:30 that cool bro”.  GPT responded by providing his address.  At 6.06pm, GJS sent GPT a message saying that he would be there in 15 to 20 minutes.  At 6.24pm, GJS sent GPT a message saying that he had arrived and GPT responded with “Come in bro”.

14. The final messages relied upon by the prosecution as implicating GPT took place on the morning and early afternoon of 26 May 2021, over the course of which the two men appeared to have been making arrangements to meet up.

15. It would seem that after this point there is no evidence that suggests that GPT played any further role in the conspiracy. That would appear to be, at least in part, on the basis that sometime between 26 May 2021 and 29 May 2021, GPT was arrested and remained in custody until after the conspiracy came to an end.

    Submissions made by Counsel for GPT

16. Mr Armstrong, who appeared for GPT, had the unenviable task of being the first counsel called upon to make submissions, in circumstances in which a new Information was laid mid legal argument, and, as became apparent, defence counsel were acting under a misapprehension about the basis upon which the prosecution sought to lead the AN0M messages.  For that reason, Mr Armstrong’s submissions evolved over time to reflect his understanding of the manner in which the prosecution pitched its case.

17. Although, as will become apparent, many of the arguments made by Mr Armstrong and other counsel for the accused evolved over time, or fell by the wayside, it is necessary to traverse the development of the submissions to understand and put into context the arguments ultimately relied upon by counsel.

18. At the time that Mr Armstrong commenced his submissions, the new Information had not yet been laid, and GPT remained charged with conspiracy to murder.

19. In his first round of submissions, Mr Armstrong proceeded on the basis of a misunderstanding of the prosecution case, that is, that the prosecution was relying on evidence of communications to which GPT was not a party, to establish his involvement in the conspiracy pursuant to the co-conspirators rule.  On that basis, Mr Armstrong relied on three arguments.  These were:

    1.That there was insufficient evidence of preconcert or reasonable evidence of participation for non-party communications to be admissible against GPT;

    2.That in the event there was reasonable evidence of participation, only communications that took place after GPT entered into the conspiracy and whilst he remained in the conspiracy, could be admissible against him under the co-conspirators rule; and

    3.Again, assuming that there was reasonable evidence of participation, it could not be established that the communications relied upon related to a conspiracy to commit murder, as opposed to some other common purpose.

20. Once it became clear that the prosecution disavowed any reliance on the co-conspirators rule and did not propose to implicate GPT, or any of the accused, by communications that they were not party to, arguments 1 and 2 became redundant.  Submission 3, about the need to establish the precise nature of the conspiracy, namely a conspiracy to murder, still remained a live issue.  In due course, this argument likely impacted on the charges that the prosecution determined to proceed with and it is therefore necessary that I say something more about it.

21. It was Mr Armstrong’s submission (that was to be joined by a number of other counsel for the accused), that it was critical to the success of the prosecution case, for the prosecution to prove that the purpose of the conspiracy was to murder Mr Denton, and not some alternative or lesser purpose.  Mr Armstrong submitted that for there to be a conspiracy to murder, a murderous intent must be proved and that nowhere in the AN0M communications does such an intent appear to manifest itself.  Whilst, taking the prosecution case at its highest, it could be established that some form of criminal conduct was being planned, involving a firearm being used against Mr Denton, that fell short of a conspiracy that involved taking the life of another.

22. Amongst the authorities replied upon by Mr Armstrong, was a decision of the Court of Appeal in Catanzariti v The Queen.[47]In that matter the accused had been convicted of four counts of trafficking in a large commercial quantity of cannabis and one count of trafficking in a large commercial quantity of 3,4 methylenedioxymethamphetamine (MDMA).  It was the prosecution case that the appellant had been involved in large scale drug trafficking with family members and associates.  Although the appellant was not charged with a conspiracy offence, the prosecution led a body of evidence pursuant to the co-conspirators rule, that took place in the absence of the appellant.  In that case, reasonable evidence was adduced by the prosecution of a foundational agreement by the appellant and his associates to package illicit substances sourced in South Australia and to supply them to others in Western Australia.   

    [47] [2021] SASCA 110.

23. On appeal, it was argued that it was not sufficient that the evidence established an agreement or joint enterprise to commit offences like the offences charged.  It was contended that “there must be reasonable evidence of an agreement to commit the very offences charged and, in particular, that the agreement included supplying large commercial quantities of cannabis and MDMA to Western Australia”.[48]  Kourakis CJ rejected that submission.  Whilst acknowledging that the prosecution were required to adduce reasonable evidence of preconcert to commit an offence, His Honour found that it does not follow that the evidence must relate to the particular offences charged.  Kourakis CJ explained that there were several reasons for so finding.  The first was that such an approach is inconsistent with the rationale of the rule permitting the communication to be led for the truth, which is founded in agency.  His Honour explained:[49]

    … Agency may be conferred broadly or narrowly but the rationale must logically apply to all offences which fall within its scope.  Participants in a joint enterprise authorise and rely on the statements and conduct of the other participants in order to achieve their common objective and purpose.  That authorisation and reliance gives the evidence of the conduct and statements of each of them the probative value and reliability which warrants an exception to the hearsay rule.  The only question therefore is whether the conduct and statements were made in the course of that common enterprise and whether the offence charged was committed for the purposes, or to further the objects, of the joint enterprise. …

    [48] Ibid at [170].

    [49] Ibid at [171].

24. The second reason identified by Kourakis CJ focussed on the outcome of the application of such a narrow approach to the test, in that it had the potential to lead to “absurd results”.  His Honour provided a practical example:[50]

    … If conspirators A and B agree to steal a getaway vehicle but only B makes arrangements with C to steal the particular car ultimately stolen, the conversations of B and C and their conduct linking the theft of that car to B’s arrangement made with A would not be admissible against A on a charge of stealing that particular car.  Moreover, many discrete offences are defined by reference to an aggravating circumstance like the value of the goods stolen or destroyed, or the degree of knowledge or advertence to the consequences of the conduct.  If the scope of the joint enterprise is wide enough to render an accused culpable for the aggravated offence committed by an accomplice, there is no rational reason to exclude evidence of the conduct and statements of the accomplice which show that the aggravated offence was committed.  That conduct and those statements would be admissible to prove the commission of the basal, or non-aggravated, offence but would, paradoxically, on the appellant’s contention, not be admissible to prove the attendant aggravating circumstance thereby disclosed.

    [50] Ibid at [172].

25. Finally, Kourakis CJ observed that not only was there no authority in support of the appellant’s contention, but that it was also arguably inconsistent with the following passage from Ahern:[51]

    … the rule … states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others.  The combination implies an authority in each to act or speak on behalf of the others.  Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator.  That being so once participation in the conspiracy is established such evidence may prove the nature and extent of the participation. … The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business.  Indeed, conspirators have been described as partners in crime. …

    (Emphasis in original)

    [51] Ibid at [167], citing Ahern v The Queen (1988) 165 CLR 87 at 94-95.

26. Kourakis CJ went on to note that in R v Corack and Palmer,[52] King CJ spoke, not of the particular joint enterprise charged in that case, but more generally of a ‘joint venture’ and ‘scheme’.  Further in R v Jackson and Hakim,[53] the rule was stated in terms of the ‘same illegal purpose’ and not the same offence.

    [52] (1982) 30 SASR 404 at 406.

    [53] (1987) 30 A Crim R 230.

27. Importantly however, for the purposes of Mr Armstrong’s argument, in Catanzariti, Kourakis CJ went on to observe that on the facts of that case:[54]

    … there was ample evidence which showed that Condo, Antonio, Carolyn, Caterina and Anna were involved at all relevant times in a joint enterprise with the appellant to traffic cannabis, or MDMA, as the case may be and in whatever quantities were sought and could be procured.  Their statements were therefore admissible as evidence of both the appellant’s participation in the particular trafficking offences charged and the weight of the substance. 

    [54] Catanzariti v The Queen [2021] SASCA 110 at [174].

28. It was Mr Armstrong’s submission, that whilst it is not necessary to identify a particular offence, specific and careful attention should be directed to the precise nature of the conspiracy that is being alleged.  In Catanzariti, whilst it was not necessary to prove knowledge of the precise offence, in order to prove the charges, the prosecution were required to establish that they were conspiring to traffic cannabis and MDMA. 

29. It was submitted, that on the facts of this case, if the statements could establish no more than that Mr Denton was to get a “working over”, then that would be insufficient to establish that the statements were in furtherance of the particular conspiracy relied upon by the prosecution.

30. As I have said, on 5 November 2024, the prosecution filed a fresh Information with an additional count of conspiracy to cause serious harm and, on 11 November 2024, elected to not proceed with the conspiracy to murder charge. 

31. On 6 November 2024, when the matter first came back before the Court after the new Information had been filed, Mr Pearce KC apologised to the Court for the timing of the laying of the new Information and indicated that while “the wheels had been put in motion prior to commencing the argument”,[55] it had become clear during the course of submissions that the determination of the appropriate charge was a matter that needed “to be brought to a head”.[56] 

    [55] T92.

    [56] T92.

32. Plainly, the change of charge cut across Mr Armstrong’s earlier submission, that in order for the AN0M communications to be in furtherance of the conspiracy, it was necessary for the prosecution to prove a murderous intent.

33. When Mr Armstrong resumed his submissions on 6 November 2024, he acknowledged from the outset that the argument made on behalf of GPT was not as strong, as a consequence of the prosecution reducing the charge.

1. As in relation to Mr Hughes and Mr Harris, it is the prosecution case that SAW was introduced into the conspiracy and remained involved for a single chapter, that being Chapter 4 – The Second Attempt.  SAW did not have an AN0M device and therefore was not a participant in any of the communications.  The prosecution do not suggest that SAW has any current or past affiliation with the Comancheros. 

2. SAW’s direct involvement commenced with his participation on 27 May 2021 and ended on that same day with his arrest.  Having said that, there are communications that would suggest that the plan for the second attempt had commenced by the afternoon of 26 May 2021.  Commencing at 4.00pm, there were a series of communications between RPHJ and a person by the name of [B], and RPHJ and MJP, during which RPHJ appeared to be arranging to obtain a firearm.  The inference can be drawn, that by this stage, the plan was on foot for the second attempt. 

3. By this time, the conspiracy encompassed an agreement that there would be a second attempt to shoot Mr Denton.  In order to facilitate that attempt, arrangements were made to utilise the Subaru. 

4. The case implicating GPT in the conspiracy commences with police surveillance on the Subaru on the morning of 27 May 2021.

5. At about 10.18am, the Subaru was observed at Hopetoun Avenue, Kilburn.  GJS was later observed to drive the Subaru to Lockleys, travelling in convoy with RPHJ.  The Subaru was left in Hawthorne Street, Lockleys.  GJS got into RPHJ’s car and the two men drove to GJS’ house at Ridleyton.  There, they changed cars.  Both men got back into GJS’ white Hyundai van, which GJS drove back to Hawthorne Street, Lockleys.  RPHJ got out of GJS’ van.  He was seen to place a black bag in the passenger’s seat of the Subaru.  The two men drove back to GJS’ house and went their separate ways. 

6. Ground surveillance of the Subaru continued.  At 9.53pm, a vehicle pulled up next to the Subaru.  A male got out and entered the Subaru.  The two vehicles then drove away and were followed to Walkerville, where observations were broken at 10.21pm.  The Subaru was next seen at 11.05pm in the vicinity of Mr Denton’s house.  It made four slow passes of Mr Denton’s house, which involved driving past, doing a U-turn, driving past, doing another U-turn and then driving past again. 

7. The Subaru was observed to park in a nearby side street and SAW got out of the front passenger seat.  SAW made his way a short distance down the street and was observed to leave something in bushes near a footpath adjacent to Mr Denton’s house.  SAW then walked to Mr Denton’s house and took up a position in a hedge near to the house.

8. At about that time, police STAR group officers intervened, driving their vehicle into a position directly behind the Subaru, which drove off at speed, leaving SAW hiding in the hedge.  SAW was arrested and a scarf, a face mask and gloves were located in the near vicinity.

9. After SAW’s arrest, the Subaru was followed a short distance by the police.  Under surveillance, the driver was observed to deposit some accelerants. 

10. The following day, police located a loaded revolver from where SAW had been seen to be placing the item in the bushes.  The weapon was identical to one depicted in photographs GJS had previously sent to RPHJ.

11. On arrest, SAW gave a false account to police, suggesting that he had been dropped off at that location by friends.

    Submissions made by counsel for SAW

12. In her initial submission, Ms Abbey KC made a similar submission to those made on behalf of Mr Hughes and Mr Harris.  She contended that the AN0M messages were not amissible to establish SAW’s involvement in the conspiracy as there was no reasonable evidence of his participation in the conspiracy independent of the messages.  Whilst Ms Abbey KC accepted that the prosecution could link SAW with the Subaru, and could establish that he left a loaded firearm at the scene, she submitted that did not prove that he had joined an agreement to commit the offence of murder.  There is no evidence that SAW was aware of any drug debt or motive in relation to Mr Denton.  Ms Abbey KC made the point that there is no mention of SAW in the communications about the Subaru or in advance of the second attempt.  The only potential references to SAW occurred after his arrest, and the manner in which he was referred to would suggest that he was someone who was not well known, to at least RPHJ.  It was Ms Abbey KC’s submission that the evidence that establishes that SAW was prepared to do something illegal is not sufficient to establish that he had joined this particular conspiracy. 

13. It was contended that there was an additional difficulty for the prosecution in establishing reasonable evidence of preconcert on the part of SAW as a consequence of the fact that the driver of the Subaru remains unknown.  Given the absence of references to SAW in the AN0M communications, it was submitted that it cannot be discounted that even if SAW conspired with someone to be involved in the shooting of Mr Denton, that person may have been the unknown driver.  At the time of making these submissions, the Information particularised the six co-conspirators by name and did not yet include the words “and others unknown”.   

14. On that scenario, it would not have been established that SAW had joined in on the agreement with the other co-conspirators (as named on the Information).  That would also mean that there was no reasonable evidence of preconcert.  Ms Abbey KC summarised her submission by asking rhetorically: “if [SAW] did agree with someone, who was it, about this gun and what to do with it, and what information did he have?”[62]

    [62] T74.

15. Ms Abbey KC made an alternative submission that if I did find reasonable evidence of preconcert,[63] I should exercise the discretion to exclude the evidence on the basis that it would be unfair to admit the evidence against SAW.  The basis of this submission was the “public policy reasons”,[64] that sit behind the rationale against the admissibility of hearsay evidence, and the need to maintain the limited exceptions to the rule.  It was Ms Abbey KC’s submission that, taking the prosecution case at its highest, there was only very limited evidence against SAW capable of demonstrating reasonable evidence of participation on his part.  Ms Abbey KC went on to explain how that should factor into a discretion to exclude the evidence.  She said:[65]

    … If your Honour finds that, by the skin of their teeth, the prosecution does have enough, I say the unfairness is that there is a risk that it lets in evidence which the law sets its face against generally because of the unfairness in admitting, for the truth of their contents, statements made by others where there is no evidence that this man is a party, is even referred to in or knows of them, and so the fairness really is that simple, I say, they don’t get there but if they do it is so by the skin of their teeth that the rational is not invoked for the co-conspirator’s rule.

    [63] In her submissions, Ms Abbey KC appeared to use the terms “prima facie case” for participation, and “reasonable evidence” of participation interchangeably. 

    [64] T69.

    [65] T83.

16. Ms Abbey KC went on to accept that the onus was on SAW to convince the Court to exercise the discretion to not apply the co-conspirators rule, in the event that the prosecution had established that the communications are admissible. 

17. This submission highlights the issues arising from the application of Masters, in that it was not clear from Ms Abbey KC’s submissions, whether she was suggesting that the question of fairness was to be factored in at the point of determining whether there was reasonable evidence of preconcert or whether it was a residual discretion to be considered separately.  It would appear by her acceptance that SAW carried the onus of satisfying the Court, she was suggesting the latter, although it would appear at times during the submission she was suggesting the former.

18. Ms Abbey KC also made a second alternative argument which was that in the event that I found that there was reasonable evidence of preconcert, the co-conspirators rule only made admissible those communications that took place after SAW joined in the conspiracy and whilst the conspiracy remained on foot. 

19. For the reasons that I have set out, this is a correct statement of law. 

20. On the next occasion on which Ms Abbey KC came to make submissions, after the new Information had been laid, she maintained the same arguments on the basis that the position had not changed for SAW.  This was said to be because, regardless of the purpose of the conspiracy, whether for murder or serious harm, the evidence was insufficient to establish the necessary connection to SAW.  

21. Ms Abbey KC acknowledged that whilst amending the Information to include “others unknown” as participating in the conspiracy had cured the legal problem that she had identified in her previous submissions, that arose as a consequence of the identity of the driver being unknown, it did not remedy the evidentiary problem.  It was submitted that, despite amending the Information, there remained no evidence from which it may be inferred what the driver of the Subaru or SAW knew about their purpose in attending at the Parade that night.  Ms Abbey KC maintained that as a matter of fact, the prosecution remained unable to prove reasonable evidence of participation. 

22. Ms Abbey KC also continued to rely on the alternative submission, that I should exercise my discretion to exclude the evidence, even if there was found to be reasonable evidence of participation.  She submitted that even if there is a prima facie case of participation, it is so slight that it would cause unfairness to SAW to permit highly prejudicial, and ordinarily inadmissible evidence, to be led for the truth of its contents.  It would appear that, on this occasion, Ms Abbey KC was suggesting that discretion to decline to admit the evidence formed part of the test of whether “prima facie” evidence should be admitted as “reasonable evidence” of participation.  However, consistent with Masters, Ms Abbey KC submitted that the discretion “should be exercised in the same way as the usual discretion to exclude confessional and other evidence where its use against the accused would result in an unfair trial for the accused, and the onus is on [SAW] in relation to the exercise of that discretion in his favour”.[66]

    [66] Written Submissions of Fifth Defendant, [SAW], dated 11 November 2024.

23. There was, however, a further development or permutation to Ms Abbey KC’s submissions on this occasion, in that she contended that not only were the communications that took place in the absence of SAW inadmissible to prove his participation, but further that they should not be admitted against him to prove the existence and the scope of the conspiracy. 

24. It was Ms Abbey KC’s submission that putting to one side the co-conspirators rule, if the prosecution cannot prove that SAW was participating in the conspiracy, the existence of the conspiracy is not relevant and admissible against him. 

25. In one sense, Ms Abbey KC is correct.  As I have said previously, if, at the conclusion of the prosecution case, it cannot be established that SAW participated in the conspiracy, then it does not matter whether the conspiracy was to assault, murder or sell drugs, SAW will be not guilty.  That much is obvious. 

26. Ms Abbey KC’s submission, however, fails to recognise the exercise that the Court is currently embarking upon, and that is to determine the admissibility of the evidence of the AN0M communications against each of the accused, which has, over its journey, involved a consideration of the application of the co-conspirators rule and the threshold test of reasonable evidence of preconcert. 

27. Consideration of whether that test is met does not require an assessment and weighing of the evidence to determine whether the prosecution case of participation will be found proved.  To invite the Court to embark on that exercise, at this stage, is effectively making a pre-emptive no case submission at a point at which no evidence has been heard.  If there is a genuine concern about the ability of the prosecution to prove its case, there is an appropriate remedy available and that is for a stay of proceedings on the basis that the prosecution is foredoomed to fail.  No such application has been made by SAW.

28. There is an additional problem with the approach advocated for by Ms Abbey KC and that is, on the facts of this case, it “puts the cart before the horse”.  The conspiracy alleged by the prosecution is nuanced, multifaceted and continued over a period of time.  In order to assess the evidence of SAW’s participation, it is therefore necessary to determine what can be proved about the nature and scope of the conspiracy, before assessing the evidence of SAW’s participation.  That is an exercise that cannot be meaningfully embarked upon until all of the evidence is heard.

29. For these reasons, I do not accept the submission made by Ms Abbey KC that evidence of the AN0M communications is not admissible against SAW to prove the existence and nature of the conspiracy. 

30. On the third occasion that Ms Abbey KC came to make submissions, she commenced with her first alternative argument based on the “unfairness discretion”.  Ms Abbey KC, however, further developed that argument to meet a case in which she now understood did not involve the prosecution relying on the co-conspirators rule. 

31. Central to this submission was the purported difficulty, based on the facts of this case, to discern between using the messages for hearsay and a non-hearsay purpose.  It was Ms Abbey KC’s submission that whilst it is open for the prosecution to rely on communications made in SAW’s absence to prove the conspiracy, there is a real risk of evidence being misused.  She said “it is a very real risk in this case that by considering the evidence as a whole and as a narrative, one slips into use of evidence for the truth of it”.[67]

    [67] T267.

32. Ms Abbey KC submitted that the risk was compounded by the absence of evidence about who was driving the Subaru and the nature of the relationship between that person, SAW and the other conspirators.  It was suggested that, in those circumstances, there is a risk that the messages may inadvertently cross the line into being used for their truthfulness, particularly when, as she submitted, there is no reasonable evidence of preconcert in relation to SAW.  Ms Abbey KC described SAW as “an island. He’s in an island in the evidence, basically without any bridge to anyone”.[68]

    [68] T271.

33. Ms Abbey KC returned to the submissions that she had made previously about what she contended were deficiencies in the prosecution case against SAW.  These included an absence of evidence linking SAW to the depositing of the firearm in the Subaru, how he came to be in the Subaru, or of knowledge that the firearm was loaded.  It was Ms Abbey KC’s submission that the evidence in fact pointed against SAW being the intended shooter and having knowledge that the firearm was loaded.  Ms Abbey KC relied on SAW’s observed conduct in the vicinity of The Parade.

34. Without entering into the debate about whether the evidence is capable of establishing that SAW was to be the shooter, I pause here to make the observation that it is not necessary for the prosecution to prove that SAW was to be the shooter.  In order to prove this offence, it is necessary to establish that SAW joined in on the agreement to cause serious harm to Mr Denton.  Any steps that he took in carrying out the plan that was the subject of the agreement, is evidence relevant to the proof of his participation in the conspiracy.  It would not matter whether he was the intended shooter, or was leaving the gun in a location for another to access in order to shoot Mr Denton. 

35. It would seem that Ms Abbey KC’s purpose in demonstrating, what she would describe as the paucity of the evidence against SAW, was to highlight the risk that hearsay communications may inadvertently be used as an evidential makeweight in proving the case against him. 

36. I come back to the point that I made previously and that is, that it is uncontroversial that the evidence of the communications can be used for the purpose of proving the conspiracy.  Whether or not the evidence is sufficient to establish SAW’s participation is not a matter for determination at this point in time.

37. Whilst I accept that the assessment of the particular use to be made of aspects of the evidence will have its complexities, it is a task that is not beyond the ability of the Court, no doubt with the assistance of counsel.  Practically speaking, the risk of the inadvertent misuse of the evidence is further reduced in a trial by judge alone, rather than a trial by jury.

38. I dismiss the application for the exclusion of the AN0M messages against SAW.  They are relevant and admissible to establish the fact and the nature of the conspiracy.

    MJP

39. MJP has not been charged with conspiracy to cause serious harm, he has only been charged with Count 3, participating in a criminal organisation.

40. In order to make out this offence the prosecution must prove:[69]

    1.The accused participated in a criminal organisation;

    2.The accused knew or was reckless to whether, it was a criminal organisation; and

    3.The accused knew, or was reckless as to whether, his participation in that organisation contributed to the occurrence of any criminal activity. 

    [69] Criminal Law Consolidation Act 1935 (SA) s 83E.

41. A criminal organisation includes a criminal group. Section 83D(1) of the Criminal Law Consolidation Act1935 (SA) provides the definition of a criminal group:

    criminal group—a group consisting of 2 or more persons is a criminal group if—

    (a)an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence of violence (or conduct that would, if engaged in within this State, constitute such an offence); or

    (b)an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence (or conduct that would, if engaged in within this State, constitute such an offence) that is intended to benefit the group, persons who participate in the group or their associates;

42. It is therefore necessary for the prosecution to prove the existence of a criminal group at the relevant time.  The group must consist of two or more people with a shared aim or activity, constituting engagement in, or facilitation of, conduct constituting an indictable offence punishable by imprisonment for 5 years or more or life.  It is then for the prosecution to prove that the individual accused participated in that criminal group with the requisite state of mind.

43. In this case, the criminal organisation was the Comancheros.

44. It is the prosecution case that over the period during which the conspiracy was in operation, MJP was a close associate of the Comancheros, having been a former member.  He was in possession of an AN0M device and sent and received messages over the relevant period.  Whilst he was involved in assisting members of the conspiracy, the evidence is such, that it cannot be established that MJP went so far as to join in on the conspiracy.  It is alleged however, that it can be proved that MJP knowingly participated in Comancheros’ business and that he either knew or was reckless as to whether his involvement contributed to the occurrence of criminal activity.

45. MJP first appears in the AN0M communications at 1.30pm on 29 November 2020.  At that time, RPHJ sent MJP a message “Bro can you msg this guy he has key for van and guns its left in north”.  There is evidence that by that time RPHJ had an interest in acquiring a firearm.

46. Immediately following, were a series of messages between MJP and RPHJ which tend to suggest that RPHJ was seeking the assistance of MJP in relation to a van and guns.  At 5.58pm, MJP sent RPHJ an image of five firearms, which RPHJ forwarded onto others.  Whilst the recipients of this message are not the subject of any charges in this trial, there will be evidence that they were involved in the Comancheros.

1. It is of note however, that there is no evidence establishing that MJP was aware that this image had been forwarded on.

2. Between 6.09pm and 6.50pm there were further communications between MJP and RPHJ, during which MJP asked RPHJ when he wanted to pick up the van.  In that exchange, RPHJ also said to MJP “Wonder if one of the clips will fit in it”, the inference being that ‘clips’ refers to firearm parts.

3. The next involvement of MJP related to the storage of the Subaru.  The prosecution described this aspect of the case as:[70]

   An agreement between [PJM], [RPHJ] and [MJP] to acquire, prepare, store and make available upon request a stolen Subaru Liberty station wagon and accelerant for later use in criminal activity consisting of at least the arson of the vehicle …

   [70] FDN 382, Summary of Argument of the Prosecution at [103].

4. The sequence commenced on 22 February 2021, with an exchange between PJM and RPHJ, which began with RPHJ asking PJM “Hey you still have that hot car”.  That was followed by a discussion about the car in which it is referred to as a “subaru Liberty wagon turbo”, there was talk about getting new plates for it and PJM told RPHJ “And there’s fuel in bottles if need to torch it later and a smoke flare if [cops] chase”.

5. The conversation continued over 23 and 24 February 2021, during which time PJM told RPHJ that he was going to collect the car from a mate’s house, at Seaton.

6. At 12.00pm on 26 February 2021, RPHJ made contact with MJP.  He asked, “You got somewhere I can put hot car down your way”.  RPHJ also asked MJP “And what happened to there guns”.  In response, MJP said that he was going to see someone after work and that he could “put it at two wells”, presumably referring to the car.

7. The next communication involving MJP took place at 7.46pm on 8 March 2021, about two weeks later.  On this occasion, RPHJ asked “Bro where can I drop a car tomorrow” and MJP responded “And yes drop car off tomorrow bro” and “After I finish work”.

8. There were then some further communications between RPHJ and PJM and then on the following day at 3.14pm RPHJ asked MJP “Were can I put this car”.  This is followed by a series of messages in which it appears that RPHJ and PJM were arranging to meet up at Two Wells later that evening.  At 7.31pm, MJP checked in with RPHJ to see where he was and stated that he was at the Red Dragon.  There were then a series of messages that took place at about 7.35pm involving RPHJ, PJM and MJP from which the inference can be drawn that RPHJ put MJP and PJM in contact with each other, allowing them to communicate directly.

9. Between that time, about 1.42pm, there were messages between RPHJ and MJP, and PJM and MJP.

10. At 7.50pm on 9 March, MJP sent a message to PJM “Hey man can u drop it to me tomorrow”.  They made arrangements to meet the following day.  There were also discussions about how long it would take to get to Two Wells.  At 12.41pm on 11 March 2021, PJM sent a message to MJP saying “Hey bro, going to get car now and bring it to two Wells. Is there any particular spot to put it? Should be there by 1:45 - 2pm”.  MJP responded by providing an address of 10 Gawler Road, Two Wells.  The series of communications ends with MJP and PJM appearing to message each other enroute to their meeting point.

11. On the prosecution case, MJP’s next involvement took place about two months later and involved making the Subaru available.  At 4.08pm on 26 May 2021, RPHJ contacted MJP and told him he needed the car the following morning.  Later that evening at 10.51pm, RPHJ sent MJP a message saying “Hey bro need that thing early as you can thanks bro”.  At 6.07am the following morning MJP responded “Yeah bro its getting drop back to two wells let me know cos I’ll drive the work truck out there to meet them bro”.

12. It is the prosecution case that RPHJ and MJP began making arrangements for the Subaru to be in Adelaide.  During the course of the arrangements, MJP queried whether RPHJ needed “the bag what was in it”.  At about 10.18am, MJP messaged RPHJ to tell him that the vehicle has been left at the front of a power-station on Hopetoun Avenue.  Police surveillance confirmed that the Subaru was at that location.

13. MJP’s final involvement commenced on 3 June 2021, with RPHJ forwarding MJP contact details for PJM.  A few hours after this MJP sent RPHJ a message “who Inferno”, “Cos they message me asking what I’m doing I said I’m at work and they never message back haha”, “Is that who I’m ament to be seeing”.  On the prosecution case, ‘Inferno’ is a nickname associated with PJM.  This would suggest that despite their previous contact some months earlier, MJP had forgotten who PJM was.

14. This was followed by a series of exchanges between PJM and MJP as they attempted to arrange to meet.  At 6.35pm, PJM sent a message to MJP saying “Not sure if remember me I dropped that car off to you a couple months ago”, suggesting that the two men were not well acquainted with each other.

15. At 6.40pm, MJP sent PJM a message saying “OK bro I’m 30 away”.  26 minutes later, at 7.06pm MJP sent PJM a message “Where u bro”, and PJM responded “Just turned on street”.  At 7.09pm MJP sent a message to RPHJ saying “All done bro”.  The inference arising is that whatever needed to be done, had been done by this stage.  That inference is further supported by a message from PJM to MJP 30 minutes later at 7.29pm of “Thanks bro”.  At 8.04pm MJP responded “All good bro can u just make sure is all wiped down bro and even the bullets thanks bro”.  A reasonable inference to be drawn from that communication is that MJP was involved in providing PJM with a firearm, with RPHJ in some way orchestrating it. 

16. That concludes the evidence implicating MJP. 

17. It is the prosecution case that MJP was called upon at different times during the plan to shoot Mr Denton, and provide assistance that was required, generally at the behest of RPHJ. 

    Submissions made by counsel for MJP

18. Mr Culshaw appeared for MJP.  At the time that he made his initial submission, Mr Culshaw was of the understanding that the prosecution proposed to rely on the co-conspirators rule to implicate MJP.

19. At the outset of his submissions, Mr Culshaw candidly made it plain that in the event the AN0M messages are admissible and they are accurately reproduced, there could not realistically be any serious dispute that MJP was assisting RPHJ in criminal conduct.  A central issue at trial will be whether it is proved that MJP’s conduct amounted to participating in a criminal organisation, as opposed to assisting a person who happens to be a member of a criminal organisation.

20. It was Mr Culshaw’s submission that whilst MJP’s messages back and forth are admissible against him, none of the AN0M messages to which MJP was not a party should be admitted.  Mr Culshaw also accepted that there may be a further select number of messages between others that may be admissible against MJP because they provide necessary context.

21. It is unnecessary to descend into the detail of Mr Culshaw’s submissions about why the co-conspirators rule did not apply to MJP, given that the prosecution does not propose to rely on any AN0M communications beyond those which are conceded by Mr Culshaw are admissible.  I note however, that central to these submissions was MJP’s role in the events, which was described as “limited”, not only in respect to the number of co-accused he had contact with, but also the conduct that he engaged in.

22. Mr Culshaw also raised a concern about the messages being used to establish the scope of the activities of the Comancheros.  It was his submission that although the prosecution purports to rely on this evidence for a non-hearsay purpose, namely to establish the nature of the organisation, there remains an underlying hearsay use if the evidence is relied on in this way. 

    The prosecution response

23. Although not yet referred to, a number of the counsel for other accused also made submissions about use of the AN0M messages in relation to Count 3.

24. It is therefore convenient at this point to set out how the prosecution proposes to rely on this evidence.

25. In order to prove that the Comancheros (or those individuals charged with Count 3) are a criminal organisation as defined in the Criminal Law Consolidation Act 1935 (SA), requires the prosecution to prove that 2 or more people has as its aim, or it is an activity of that group to engage (or facilitate the engagement) in conduct that amounts to a serious offence of violence, or conduct that amounts to a serious offence, that is intended to benefit the group or their associates. The prosecution proposes to rely on the AN0M messages as direct evidence that RPHJ, GJS, GPT and others were engaged in the commission of either serious offences or serious offences of violence. It is the prosecution case that the AN0M messages show various of the accused, either amongst themselves or with others, engaged in violent offences, drug dealing, unlawful possession of firearms and the like.

26. The AN0M messages are also relevant to prove that the Comancheros are a criminal organisation.

27. It is the prosecution case that Count 2, the conspiracy, has the potential to be relevant to Count 3 if that charge is proved. The offence of conspiracy to cause serious harm is of itself a serious offence of violence giving rise to direct proof of the fact that this group engaged in conduct of the sort necessary to satisfy s 83D(1) of the Criminal Law Consolidation Act 1935 (SA).

28. In relation to MJP, the prosecution case is more straight forward.  The prosecution relies on MJP’s own messages to establish his participation in the criminal organisation.  Whilst the prosecution relies upon other messages to establish that this was a criminal organisation, it is said to only be messages sent and received by MJP that implicate him in this offence.

29. In reply, whilst Mr Culshaw accepted that messages sent or received by MJP were admissible against him, he maintained that the dichotomy between the two uses described by Mr Pearce KC was not as straightforward as it appeared.  Mr Culshaw submitted:[71]

    … that really, when one pulls the curtain back on the use that is sought to be made by the director of the non-party messages on this count, properly understood, it actually is a hearsay use.

    [71] T276.

30. I do not accept that submission.  In my view, properly contained and controlled, the evidence can be relied upon by the prosecution to establish the existence of a criminal organisation without relying on impermissible hearsay. 

31. Given the limited way in which the prosecution proposes to rely on the AN0M messages on Count 3, there is no basis upon which to find them to be inadmissible against any of the accused.

    Conclusion

32. The prosecution intend to proceed to trial on only Count 2 and Count 3 on the current Information; those being charges of conspiracy to cause serious harm with intent to cause serious harm and participating in a criminal organisation.  This is a significant shift from the position at the outset of the voir dire, at which time, the prosecution alleged a conspiracy to murder.

33. The prosecution have also now indicated an intention to present the case against the accused without any reliance on the co-conspirators rule.

34. On that basis, the AN0M communications will be admissible against each of the relevant accused to prove the nature and the extent of the conspiracy (Count 2) and the existence of a criminal organisation (Count 3).  The messages will also be admissible against the accused who were involved in a particular communication as part of the body of direct evidence relied upon by the prosecution to implicate them in one or both of the offences. 

35. Given the limited use to which the prosecution puts the messages, and the ability to control the potential misuse through careful reasoning, there is no basis upon which to grant any of the extant applications by the accused, to exclude or further limit the use of the messages against them.