R v Stocks, Michael Keith and Thorley, Geoffrey Ian
[1999] TASSC 44
•20 April 1999
[1999] TASSC 44
PARTIES: R
v
STOCKS, Michael Keith
and
THORLEY, Geoffrey Ian
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: CRIMINAL
FILE NO/S: 120/1997
DELIVERED: 22 April 1999
HEARING DATE/S: 20 April 1999
RULING OF: Slicer J
Edited edition of reasons for ruling delivered orally.
REPRESENTATION:
Counsel:
Prosecution: J N Perks and M P Shirley
First Accused: W M Hodgman QC and W E Hodgman
Second Accused: G L Sealy and P A Warmbrunn
Solicitors:
Prosecution: Director of Public Prosecutions
First Accused: Wallace Wilkinson and Webster
Second Accused: Piggott Wood and Baker
Judgment category classification:
Judgment ID Number: [1999] TASSC 44
Number of pages: 6
Serial No 44/1999
File No 120/1997
THE QUEEN v MICHAEL KEITH STOCKS and
GEOFFREY IAN THORLEY
REASONS FOR RULING SLICER J
DELIVERED ORALLY 22 April 1999
Applications are made by both accused for their trials to be held separately. They are jointly charged with the crime of trafficking in a prohibited substance contrary to the Poisons Act 1971. On its face, the terms of the indictment would require there to be a joint trial. However, particulars provided by the Crown in accordance with the Criminal Code, s314, show the question to be more complex. The particulars, as originally provided, define the case against each accused in different terms. In essence, both accused are said to have profited from enterprises conducted either by themselves or others. However, profit was derived from enterprises, some of which were separately conducted and did not involve the accused.
Thorley
The particulars provided in relation to the case brought against each accused can be compared in the following manner:
STOCKS THORLEY (1) Between 20 January 1995 and 17 February 1997, he trafficked in Indian hemp which he, in company with Thorley and Ewings, had grown and cultivated at 55 Wellington Street, Hobart.
(1) Between 22 January 1995 and 17 February 1997, he trafficked in Indian hemp which he, in company with Stocks and Ewings, had grown and cultivated at 55 Wellington Street, Hobart. (2) Between 20 January 1995 and 17 February 1997, he trafficked in Indian hemp which he, Thorley, Ewings and Smith had grown and cultivated at 97 Charles Street, Moonah.
(2) Between 22 January 1995 and 17 February 1997, he trafficked in Indian hemp which he, Stocks, Ewings and Smith had grown and cultivated at 97 Charles Street, Moonah. (3) Between 20 January 1995 and 17 February 1997, he trafficked in Indian hemp which Ewings had grown at Charlotte Street, New Norfolk.
(3) No particulars were provided and no allegation made. (4) Between 20 January 1995 and 17 February 1997, he trafficked in Indian hemp which he and Stocks had grown and cultivated at Argyle Street, Hobart. (4) No particulars were provided and no allegation made.
At the conclusion of submissions made by the respective parties, the Crown amended the particulars so as to remove from its case any allegation and evidence concerning conduct involving the premises at Charlotte and Argyle Streets. The withdrawal of those particulars removes some of the difficulties associated with the use of evidence admissible against each accused and leaves the prejudice of a possible risk of verdict by association and use of tainted evidence.
The problems of and principles governing the holding of joint trials have often been discussed by the courts (Leaman v R A9/1987; R v Courtney, Lomas and Duggan [1998] TASSC 127, R v Piller and Others (1985) 86 A Crim R 249) and it is not necessary to restate them in detail. However, the fact that some evidence is admissible against one accused and not the other is not, of itself, a sufficient reason for the holding of separate trials (Smith v R [1979] Tas R 311) and in some circumstances the remedy is the exclusion of otherwise admissible evidence (R v Darington and McGauley [1980] VR 353; R v Gibb and McKenzie [1983] 2 VR 155; R v Haywood and Roughley B22/1995). Likewise, the role of particulars and the manner in which they can limit or prescribe the parameters of a case have been a matter for consideration (James v R 19/1987; Riseley v R 21/1970). In the former case, one involving joint trials, the jury had been directed that, despite the evidence of the victim that a co-accused, Devine, had fired the wounding shot, they could not convict Devine of attempted murder, because of the role of particulars, but could only consider the case against James. The particulars governed the verdicts which were available to the jury. The reason for the provision of particulars in a case such as this (where the crime is said to have been committed during the course of some two years) is to identify the respective acts or course of conduct of each accused in the commission of the crime. In this respect, the provision of the particulars govern the verdict and permits the parties to have their guilt or otherwise determined by reference to the primary evidence adduced in accordance with those particulars. As Crisp J observed in Riseley v R (supra) at 17:
" … in a case … where there is a great possibility of confusion between acts charged and other acts not charged of a similar nature but which are relied on as evidentiary material rebutting possible defences, there is an elementary need if justice is to be done for the factual issues to be identified and separated."
The case against each accused is circumstantial in nature. It would appear that the other two implicated persons, Ewings and Smith, have pleaded guilty to their involvement in the enterprise and that one or both might give evidence on the trial. Depending on the evidence given by either or both, the trial might become one less dependent on circumstantial evidence.
The particulars of the case alleged against each accused can be summarised in the following manner.
(1) Ownership and control
(a)Stocks and Thorley were involved in the lease and subsequent purchase of the premises at Wellington Street in January 1995; that ownership was transferred to Thorley in August 1996 and that certain accounts associated with the premises were initially in the name of Stocks, but as of March 1996 were rendered in the name of Ewings.
(b)That the premises at Charles Street, initially leased in the name of Smith, involved both accused who were present at the time of the negotiations and agreement.
(c)That Stocks was the lessee of and sole key holder of premises at Bathurst Street, a place at which it is claimed the hemp was processed and packaged. Some 800 plants of Indian hemp were recovered from those premises.
(2) Presence and control
(a)The Crown intends to lead evidence that the fingerprints of Stocks, Ewings and Thorley were identified as being present on certain hydroponic equipment at the Wellington Street premises. Further, that a fingerprint identified as that of Stocks was found on a light unit, and, in the opinion of a claimed expert, could only have been placed on that unit at a time after it had fused or failed, indicating contact after the use of such equipment.
(b)The Crown intends to lead evidence that a fingerprint identified as that of Stocks was located in the Bathurst Street premises.
(3) Similarity of plant and equipment
Thorley was involved in the sale of hydroponic equipment. Such equipment was located at Wellington Street, Bathurst Street and the home of Stocks. On the trial of Stocks, further evidence of the location of equipment at Charlotte Street would be relevant and admissible. If Smith gives evidence in accordance with his proof, he will claim that the hydroponic equipment located at Charles Street had been provided by Thorley. The presence of hydroponic equipment and a particular cylinder on a vehicle owned by Stocks and seen at the Argyle Street premises would be relevant in the trial of Stocks, since on those particulars the Argyle Street premises were used by him as part of the overall enterprise.
Code and pattern evidence
Items recovered from the Wellington and Bathurst Street premises contained coding identification which could be matched with codes recorded in log books which were located at Bathurst Street. Coded entries were located at the home of Ewings which were identical to those located at Bathurst Street. Similar entries, together with a sketch plan of a hydroponic plant, were located in a vehicle belonging to Stocks. Similar coded entries were located at Charlotte Street. The codes and entries are indicative of a course of commercial activity on the part of Stocks and Thorley. That evidence, with the possible exception of the Charlotte Street items is, as the Crown averts, relevant to and admissible on the trial of both accused.
There is further evidence of the similarity of the plant and equipment and set up of the group rooms at Charles and Wellington Streets.
Evidence of purpose of enterprise
A large number of receipts were seized from the Bathurst Street premises which indicated that Stocks had purchased a large amount of building equipment. There is greater significance in the location at Bathurst Street and the home of Stocks at Cullondon Street of a quantity of hemp seeds and the presence of some 800 Indian hemp plants at Bathurst Street, attached to which were pieces of cardboard on which were marked code references similar to those already described and which matched those located at the Wellington Street premises. It is the presence of a significant quantity of Indian hemp which gives colour or flavour to the nature of the enterprise conducted at Charles and Wellington Streets.
Evidence of conduct and conversations
There is evidence of the identification of Ewings and Stocks at various premises, although none of Stocks at Wellington Street after March 1996, a time which pre-dates the location of Indian hemp at Bathurst Street. There is evidence of the presence of Ewings and Thorley at Charles Street. There exist telephone records which show extensive contact between Stocks, Ewings and a third person, and further evidence of conversations between Smith and Thorley. Further, there is evidence that during the relevant period Stocks spent in excess of $300,000 and the business receipts of Thorley increased significantly.
Evidence of admission
When questioned by police, Thorley declined to make answer. The Crown contends that responses given by Stocks could be used by the jury to find that he admitted involvement in the sale of the Indian hemp found at Bathurst Street.
Miscellaneous evidence
There is other evidence of movements, items seen drying on racks, the presence of strange odours and the like, which would be admissible on the trial of both accused. Evidence of the presence of cannabis leaf at Charlotte and Argyle Streets would not be led on a joint trial.
The problem associated with a joint trial is not that of the admissibility of evidence. Much of the evidence described could be led on either a joint or separate trial. In many cases involving multiple offenders, where only one person is standing trial, evidence of the existence of physical items, joint conduct, presence and the like, can be led as evidence of a state of factual circumstances. In such cases, the task of the jury is to determine whether, on the evidence admissible against the accused, there is sufficient nexus between that account and the event described. Thus in a case such as a robbery, the presence of a get away vehicle and driver is relevant to the question of the involvement of a principal not present at the actual robbery. A nexus between the provider of a firearm and its use at a scene permits the leading of evidence of the use to which that firearm was put.
The problem in this case is the process by which a jury could make inferences and reach conclusions. In the case of Stocks, those problems could be minimised by the isolation of certain evidence, such as conversations between Thorley and Smith. Thorley says nothing of significance to the interviewing police and there would be little prejudice to Stocks in a recounting of that interview. If the application was made by Stocks alone it would be refused.
Different considerations arise in relation to the trial of Thorley. The particulars of his involvement in the crime of trafficking are:
(1)That he provided finance and equipment for the premises at Wellington Street and assisted in the construction of the growing area and cultivation of Indian hemp plants at such premises.
(2)That he provided finance and equipment for the premises at Charles Street and assisted in the construction of the growing area and cultivation of Indian hemp at such premises.
(3)The sharing of the proceeds of the sale of Indian hemp grown by Stocks at Wellington Street with Stocks and Ewings.
(4)The sharing of the proceeds of the sale of Indian hemp grown by Stocks at Charles Street with Stocks, Ewings and Smith.
The case against him is not strictly that of a joint enterprise. The particulars alleged against Stocks differ in both time and conduct. He is said to have been personally involved in the Wellington Street premises until March 1996. It is claimed that he was involved in the drying, packaging and selling of Indian hemp grown at Wellington and Charles Streets. Those different particulars would not necessarily involve prejudice to Thorley. However, a further particular claims involvement by reason of the payment of rent for the Bathurst Street premises and the drying, packaging and resale of Indian hemp at and from those premises. It is not claimed that Thorley had any involvement in that part of the enterprise.
The case against Thorley is circumstantial in nature. There is no direct evidence that the premises at Wellington and Charlotte Streets were used for the trafficking in Indian hemp, although the totality of the evidence comprised in the Crown papers permits a ready inference that such was the case. But the jury will need a commencing point on which to base subsequent inferences and conclusions. A convenient commencing point might be to decide whether Stocks is guilty of trafficking, and then by evidence of association, joint conduct, the location of similar items and the like, to ascertain whether, on evidence admissible against Thorley, there is sufficient nexus to infer criminal conduct on the part of Thorley. That commencing point could be the presence of Indian hemp seeds at the home of Stocks, and, more significantly, the finding of some 800 plants at Bathurst Street. The presence of a commercial quantity of Indian hemp at Bathurst Street, its dried condition and packaging, together with the admissions made by Stocks and his financial involvement, could be used by the jury in its reasoning process to conclude involvement in a commercial operation involving Indian hemp. That conclusion alone could ground a verdict of trafficking. That conclusion could be further used by the jury in its consideration of the operations conducted at Wellington and Charles Streets and ground a verdict in accordance with the particulars. But the same jury would be required to take into account different considerations if they undertook a similar reasoning process in the case against Thorley. They could not use the statements made by Stocks in relation to Bathurst Street as a fact which could ground a reasoning process that, in the case of Thorley, Stocks was involved in the act of trafficking. They could not use the presence of Indian hemp at Bathurst Street in their consideration of the case against Thorley in relation to Wellington and Charles Streets, unless there was an evidentiary nexus between the presence of the plants and Thorley. The only apparent nexus is the involvement of the co-accused Stocks. But the conclusion, sought by the Crown from the jury, is that Thorley shared in the proceeds of commercial activity conducted by Stocks. The reasoning process is circular and, if not impossible, difficult. Directions as to the use which might be made of the evidence, including the pattern or coding evidence and the telephone communications, will be complex. An example will suffice. The jury might have regard to the similarity of coding located at premises in which Thorley had involvement. They might then have regard to the evidence of coding found at Bathurst Street. That coding was attached to some 800 plants of Indian hemp. But the significance of the coding lies in its use with that Indian hemp which, but for the involvement of Stocks, is not linked to Thorley. But the evidence of involvement by Stocks is, in part, the admissions made by him. Should the jury choose as a commencing point the coding and plants at Bathurst Street and compare the similarity of coding in relation to the Wellington and Charles Street operations? Should the jury ignore such evidence until it has reached a conclusion on similarity of coding in relation to the other premises and only then give consideration to the Bathurst Street premises on the basis that they have already concluded a commercial nexus between Thorley and Stocks?
The jury might well consider that the finding of some $34,500 in cash at Bathurst Street is a significant matter in any consideration of commercial gain by Stocks. But there is no nexus between the money and Thorley's involvement in the Wellington and Charles Street operations, other than the involvement of Stocks. There is only indirect or circumstantial evidence that the Indian hemp located at Bathurst Street was derived from growing operations with which Thorley is said to be involved. The money might well be associated with the Indian hemp there located, but to require a jury to make only proper inferences in a case such as this would prove difficult. That nexus must establish an act or conduct which formed part of a claim of distribution between original production and consumption (Burton v R A52/1979). In the circumstances of this case, a finding by the jury that Indian hemp was cultivated at Wellington and Charles Streets does not necessarily permit a conclusion that Thorley is guilty of trafficking. A jury might conclude that he was involved in a commercial joint operation but that his involvement ceased at that point. Evidence of further processing and distribution is thus a significant issue for the jury.
In submissions made in support of a separate trial for Thorley, it was claimed that the evidence of some thirty-eight witnesses would be inadmissible on the trial of Thorley. The ruling made in this case is not dependent on that assertion, and the parties ought not assume that the ruling determines the admissibility of such evidence. Some of the evidence identified by counsel might well be relevant to and admissible on the trial of Thorley alone. However, it is clear that some of the evidence admissible against Stocks would not be admissible on the trial of Thorley.
The Court is conscious of the advantage to the Crown in having the one jury consider the respective cases against each accused at the same time. The Court is conscious that the putting together of the respective cases against each makes a compelling case that there was mutual commercial conduct in the distribution of a prohibited substance. But the putting together of three respective cases involves the use of evidence not admissible against the other. That might not prove to be a difficult task in circumstances of direct evidence. But separate conclusions based on circumstantial evidence renders the task more complex. The conduct of joint trials is itself difficult and the intellectual processes required before a finding of guilt may be safely made on the basis of circumstantial evidence have long been recognised to be complex and fraught with difficulty. The two matters are here combined and the conduct of a joint trial will prejudice the opportunity for Thorley to have his case properly considered. For that reason he ought be afforded a separate trial.
The application by the accused Stocks to have a separate trial is refused. The application by the accused Thorley to have a separate trial is granted.