R v RPHJ

Case [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

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AGLC
R v RPHJ [2025] SASC 107
Case
[2025] SASC 107
Decision Date

CaseChat Overview and Summary

The case of R v RPHJ involved multiple defendants who were charged with various offences related to criminal activities. The prosecution alleged that the defendants were part of a conspiracy to commit serious crimes, including causing serious harm and participating in a criminal organisation. The defendants challenged the admissibility of certain communications and sought to exclude or limit the use of these materials against them. The court had to determine the admissibility of the evidence, particularly in relation to the co-conspirators rule and hearsay exceptions.

The central legal issue in this case was whether the communications between the defendants and other individuals (referred to as AN0M messages) could be admitted as evidence against the defendants. The defendants argued that these messages were inadmissible hearsay and should not be used to prove their involvement in the conspiracy. The court had to assess whether the prosecution could rely on the co-conspirators rule, which allows for the admission of statements made by one conspirator in furtherance of the common purpose, against another conspirator. Additionally, the court considered whether the prosecution's limited use of the messages against the defendants warranted any restrictions on their admissibility.

The court found that the AN0M messages could be admitted against the defendants for several reasons. Firstly, the prosecution intended to rely on the messages to prove the nature and extent of the conspiracy and the existence of a criminal organisation, which fell within the scope of the co-conspirators rule. Secondly, the court held that the limited way in which the prosecution proposed to use the messages meant there was no basis to exclude them. The court also noted that the potential for misuse of the evidence could be controlled through careful reasoning and instructions to the jury. Therefore, the court denied the defendants' applications to exclude or limit the use of the AN0M messages against them.

The court's decision allowed the prosecution to use the AN0M messages as evidence against the defendants in relation to the charges of conspiracy to cause serious harm and participating in a criminal organisation. The court's reasoning was based on the limited use of the messages and the applicability of the co-conspirators rule. The court emphasised that the potential for misuse of the evidence could be managed through appropriate instructions to the jury. The decision ensures that the prosecution can present a robust case against the defendants while maintaining the integrity of the trial process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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? 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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