R v Wallis

[1998] QCA 229

IN THE COURT OF APPEAL	[1998] QCA 229
SUPREME COURT OF QUEENSLAND

C.A. No. 86 of 1998

Brisbane

[R. v. Wallis]

THE QUEEN

v.

STEPHEN JOHN WALLIS

Appellant

Pincus J.A.
Thomas J.A.

Lee J.

Judgment delivered 21 August 1998

Separate reasons for judgment of each member of the Court; each concurring as to the order made

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL - Parties - common purpose to supply drug - whether reasonable evidence of participation - acts and statements of persons in furtherance of common purpose - instructions, negotiations and transactions capable of showing furtherance of common criminal purpose admissible - Weissensteiner direction - evidence of undercover police - corrobation not required.
Tripodi v The Queen (1961) 104 CLR 1 Ahern v The Queen (1988) 165 CLR 87 R v Hasler ex parte Attorney-General [1987] 1 Qd R 239 Tangye (1997) 92 A Crim R 545
Counsel:	Mr A Kimmins for the appellant Mr D Meredith for the respondent
Solicitors:	Price Roobottom for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	2 June 1998
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 21 August 1998

I have read the reasons of Thomas J.A. The principal argument advanced in support of the appeal had to do with the principle in Tripodi (1961) 104 C.L.R. 1. In that case the High Court reaffirmed the rule that where there is reasonable evidence that the accused acted in preconcert "evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others" (7). It may be thought that the boundaries of this doctrine have been extended by what was said in Ahern (1988) 165 C.L.R. 87. There one finds reference to the possibility of admitting evidence of this kind, not explicitly limited to evidence of acts or words in furtherance of the common purpose. I refer in particular to the discussion of evidence taking the form "of separate acts or utterances from which the fact of combination might be inferred" (93) and to the possibility of reaching a conclusion that there was a common enterprise from acts and declarations being "facts from which the combination might be inferred" (94). But at pp. 94, 95 the rule is stated in the form -

". . . 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".

Although I do not use the earlier references to the discussion in Ahern to justify a departure from the rule as stated in Tripodi, which includes the requirement that the evidence admitted be of acts in carrying out the common purpose, it appears to me that one should avoid taking too narrow an approach to that concept. Some support for this idea is to be found in old authority recently approved in the Victorian Court of Appeal, that even a statement made after a conspiracy has come to an end may be admissible against conspirators not then present: Su [1997] 1 V.R. 1 at 43.

To come to the issue, raised in the present case, of the lunch conversation between McLanachan and Severs, the judge, in my opinion, was not obliged to attempt the task of excluding from the conversation any passage or sentence not shown to be intended to advance the common purpose; the occurrence of the conversation, considered as a whole, was reasonably attributable to the carrying out of that purpose and that justified its admission. The case is not one where the question of exclusion of parts of the conversation on the ground that its prejudicial effect outweighed its relevance arises.

Subject to these observations, I entirely agree with the reasons of Thomas J.A. and with the order his Honour proposes.

REASONS FOR JUDGMENT - THOMAS J.A.

Judgment delivered 21 August 1998

The appellant was convicted by a jury of supplying a dangerous drug (Lysergide) to one Severs who was an undercover police officer. He and Liza McLanachan were jointly indicted but she failed to appear on the day of trial and the matter proceeded against the appellant alone.

The Crown case was that an agreement was made between Severs and McLanachan for her to supply him with 10,000 LSD tablets at $4.25 per tablet, and that the appellant was involved in the supply which was effected on 15 February 1997. The case against him was established principally from the evidence of Severs and further evidence of surveillance and telephone calls. This included dealings between Severs and McLanachan, and various contacts between the appellant and McLanachan at critical times in the events leading to the supply from which it might be inferred that there was a common purpose between the appellant and McLanachan to supply Severs with the drug, and that the appellant participated in the supply by delivering the drug to McLanachan immediately before she supplied it to Severs.

It will be convenient to provide a short summary of the evidence and then deal with the grounds of appeal which challenge the reception of some of it and which criticise the directions of the learned trial judge concerning how such evidence might be used.

SUMMARY OF EVIDENCE

(a)	Following earlier contact between McLanachan and Severs, on 13 February 1997 there was a telephone conversation between them confirming a deal under which she would supply him with 10,000 tabs of Lysergide at $4.25 a tab. McLanachan told Severs that the person producing the tabs had suffered an accident and there would be a delay, but that the deal could still go ahead on 15 February. They arranged to meet for lunch on the following day, 14 February.
(b)	On 14 February Severs confirmed the luncheon meeting with McLanachan by telephone. Shortly afterwards McLanachan went to the appellant’s business premises and spoke to him. Their meeting was photographed.
(c)	Immediately after that meeting McLanachan went to the luncheon meeting with Severs. The meeting was taped and the tape was in due course received into evidence. Even with the aid of a transcript, the conversation is somewhat garbled but the trend of McLanachan’s statements are in relation to supply and the difficulty of dealing with other people. It is possible to infer that she is attempting to retain Severs’ confidence in her and to satisfy him that the delay has not been her fault. It includes some complaint on her part about “this guy I’ve been dealing with” and that “if it was someone that I didn’t know I’d be fine,” but that it “just happens to be my daughter’s father you know.” She also said

“It’s just like it’s not someone else being unreliable but him being unreliable

really affects me . . . He’s the father of my daughter and you can’t even get here at the right time”.
Severs asked “So you don’t actually know who he is dealing with right now?”. McLanachan replied “Not yet . . . I will in the next couple of days”.
(d)	McLanachan and the appellant had a daughter who was in McLanachan’s care.
(e)	On the following day, 15 February, McLanachan called Severs by telephone, stating that the reason for the delay was that Holly’s father had not told the person making the Lysergide tabs about the urgency, but that that person and his partner now understood the urgency and were “working on the order”.
(f)	At 10.44 a.m. the appellant arrived near McLanachan’s premises and was met by her. This meeting was also photographed.
(g)	At 11.30 a.m. McLanachan called Severs and told him that her man would pick up the tabs between 2 and 3 p.m. and would then drive to the Gold Coast to deliver the Lysergide.
(h)	At 12.56 p.m. there was a call from the appellant’s mobile phone to McLanachan’s mobile phone.

(i)         Three minutes later McLanachan called Severs telling him that everything was okay and that it might be fifteen minutes earlier than planned.

(j)	Four minutes later there was a call from McLanachan’s telephone to the appellant’s mobile phone.
(k)	At 2.47 p.m. McLanachan engaged a taxi outside her house which took her to the Mermaid Beach Cinema. Her instructions to the taxi driver were that he should wait for her while she met someone at that destination “to get some papers” and that she would then go on to Surfers Paradise.
(l)	McLanachan arrived in the taxi at Mermaid Beach Cinema. Ten minutes later she left the taxi and entered a vehicle driven by the appellant. She then returned to the taxi, took the items that she had with her, paid off the driver and returned to the vehicle driven by the appellant.
(m)	The appellant then drove McLanachan to the vicinity of the Park Royal Hotel. She left his vehicle carrying a plastic bag containing a box of All Bran.
(n)	She delivered the packet of All Bran to Severs. Inside it was a copy of that day’s Gold Coast Bulletin (minus loose advertising material) and a substantial number of tabs of Lysergide. At this point she was arrested.
(o)	The appellant was at this time parked a short distance away at a service station in a position consistent with waiting for McLanachan. He was detained and his vehicle searched. Particles of All Bran were found in the front seat of his vehicle as well as loose advertising material which had been inserted in that day’s Gold Coast Bulletin.

ACTS AND STATEMENTS IN FURTHERANCE OF A COMMON PURPOSE

The principles concerning reception of evidence of the acts and statements of persons in furtherance of a common criminal purpose are expressed in Tripodi v The Queen[1], and Ahern v The Queen.[2] If there is reasonable evidence that the accused was a participant in a common purpose, acts done and words uttered by a participant in furtherance of that common purpose may be received against the other participant whether or not that person was present when the acts were done or the words were uttered.[3]

[1] (1961) 104 CLR 1, 7-8.

[2] (1988) 165 CLR 87, 94, 99-100, 104-105.

[3]            Ahern, p 100.

“ 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.”[4]

[4]            Tripodi p 7.

In a case like the present, that is to say in a case other than conspiracy, “once there is reasonable ground for inferring a combination . . ., acts and declarations of the participants in furtherance of the common purpose may be used to prove, not the fact of participation in the combination, but the offence charged”.[5]

[5]            Ahern p 99.

A problem may arise in relation to reception of “directions, instructions or arrangements or utterances accompanying acts”.[6] Of course utterances may sometimes be regarded as facts no less than acts, and are sometimes called verbal acts.[7]

[6]            Tripodi p 7.

[7]            Cf. Ahern p 94.

The evidence in Tripodi included instructions, acts and transactions concerning the stealing, disguising and reselling of motor-vehicles. At Tripodi’s trial, evidence of instructions and transactions of this kind had been admitted whether the prisoner was within hearing or not. The High Court considered that utterances accompanying acts may be “admissible when they are given by one of several acting in preconcert with the prisoner and are given in furtherance of the common design” and concluded that “the things said and done when the prisoner was not present or within earshot are for the most part of this character and are admissible as part of what was done in furtherance of the common criminal purpose”.[8]

[8]            Tripodi p 8.

There is sometimes a difficulty in identifying the cut-off point in this area. In my view, subject to there being reasonable evidence exposing the nature of the common purpose, instructions, negotiations and transactions capable of being regarded as assisting in the carrying out of that common purpose are generally admissible whether the accused is present or not. But evidence of matters extraneous to the common purpose are not so receivable. Practical difficulties may arise when a meeting has been tape-recorded, only part of which has a sufficiently direct relevance to the carrying out of the common purpose. It may sometimes be necessary to excise irrelevant conversation, while in others it may be impracticable to do so. Prima facie the whole of such an interview is admissible, but severance may sometimes need to be considered in order to exclude irrelevant material or to prevent undue prejudice, on the familiar principles conveniently stated in R v Hasler ex parte Attorney-General.[9]

[9] [1987] 1 Qd R 239.

The evidence contained in paragraphs (b), (f), (h), (i), (j), (l), (m) and (o) reveals direct contact between the appellant and McLanachan at critical times in the sequence that led to the supply of the drug. When viewed in relation to the circumstances proved to have occurred between Severs and McLanachan there was certainly a reasonable circumstantial case that amounted to independent evidence of common purpose between the appellant and McLanachan for the supply of the drug to Severs. Indeed it was conceded by counsel for the appellant during the appeal that there was reasonable evidence of preconcert between the appellant and McLanachan and that the learned trial judge was justified in so concluding.

With this and the above principles in mind I turn to the grounds upon which the

appeal is based.

EVIDENCE OF DIRECTIONS GIVEN BY MCLANACHAN TO THE TAXI DRIVER
(GROUND 1)

The evidence here objected to is that referred to in paragraph (k) above, namely the instructions McLanachan gave to the taxi driver on the day of the supply. These instructions were plainly evidence of the manner in which a prima facie co-offender was shown to be carrying out the common purpose. The evidence suggests that in order to carry out that purpose she had to collect something from someone else who turned out to be the appellant. It also suggests that the plan may have been varied when she made contact with the appellant while the taxi driver waited for her. Her statements to the taxi driver are simply part of her conduct and are plainly admissible as the acts of a co-offender. The objection that such conversation took place out of the hearing of the appellant and that such instructions could not be considered to be in furtherance of the common purpose cannot be sustained.

EVIDENCE OF THE LUNCHEON MEETING BETWEEN MCLANACHAN AND SEVERS
(GROUND 3)

This evidence is that referred to in paragraph (c) of the above summary. It was receivable as the acts of a co-offender in carrying out a common purpose, at least to the extent that it reveals a step in keeping the purchaser interested and in explaining a temporary hitch that had occurred. As such it was generally receivable as part of the negotiations by which the deal was effected. It is however arguable that some parts of this interview go beyond what might fairly be regarded as negotiation. In particular it was objected that her indirect identification of the appellant had nothing to do with the common purpose. On one view she was complaining about her personal life, but it is also open to think that she was using this as an excuse to keep the customer satisfied. The cut-off point in a situation such as this cannot be made with precision, and different minds will be prone to different conclusions. It is therefore necessary to allow trial judges a fairly wide discretion in determining where an act of negotiation ceases and where gratuitous comments begin. It is true that the identification of McLanachan’s supplier as the father of her daughter was in one sense a gratuitous additional comment, but it could also be regarded as being her way of ensuring that the common purpose would be effected.

It is to be noted that no objection was taken to the receiving of a similar statement made by McLanachan to Severs on the following day, (i.e. the evidence mentioned in paragraph (e) of the summary). Counsel for the appellant, Mr A. Kimmins, expressly conceded that that evidence could properly be regarded as an act of a co- offender in furtherance of the common purpose. He sought to distinguish the earlier luncheon conversation as a “mere narrative” and a “statement of past facts”. However I have some difficulty in distinguishing between the evidence of these two incidents. McLanachan’s conduct seems to have been driven on both occasions by essentially the same purpose, and on each occasion she nominated the appellant as responsible for the delay, although those matters are more clearly expressed in the latter occasion than the earlier.

Notwithstanding the passage in Ahern cited at footnote 5 above, incidental identification of the accused as a person involved in the enterprise may be included in evidence of furtherance of the common purpose, provided of course that other evidence in the case surmounts the “reasonable evidence of participation” hurdle. Evidence of furtherance of a common purpose often tends to show what the purpose is and who is involved in it. Subject to the trial judge’s satisfaction that there is other reasonable evidence of participation, it is not generally feasible to segregate evidence of furtherance of a common purpose into evidence of purpose on the one hand and of parties on the other. The basic question is whether the alleged offenders carried out a joint criminal enterprise. If they did, the law says that they are each responsible for the acts of the other in carrying it out. The Crown simply has to establish the existence of the enterprise and participation in it by the accused.[10]

[10]           Tangye (1997) 92 A Crim R 545, 556.

In the vast majority of cases, analysis of the present kind is not necessary. The circumstances in which the relevant persons participate together in committing a particular crime will inter alia tend to establish an unspoken understanding or arrangement to commit that crime. The acts of participation of each, whether in the presence of the other or not, are simply parts of the overall circumstantial case. Dissection of the agreement into parties and other contractual components may sometimes be a necessary exercise for trial judges and appeal courts, but hardly ever for juries. The question here is whether the learned trial judge erred in allowing this particular conversation to be received as showing a relevant act between Severs and McLanachan.

It was submitted for the appellant both at trial and on appeal, that none of the lunchtime conversation should have been received, although it was conceded that the fact that Severs and McLanachan met for lunch on that occasion was admissible. Although my mind has fluctuated on the question whether the whole of the conversation should have been received, I have no doubt that at least part of it was admissible. In the end I have concluded that his Honour was not in error in receiving evidence of the whole of this somewhat garbled conversation.

In my view then no error has been shown in relation to reception of evidence of statements made at the lunch meeting.

It is in any event difficult to see how the appellant can have been harmed by the receipt of the same information during the luncheon meeting as that which was exchanged between the same persons on the following day. If it was wrongly received with respect to that occasion but correctly received in relation to the incident on the following day, this would seem to be a case for application of the proviso. When one looks at the evidence of the appellant’s apparent supply of this large quantity (10,000 tabs) of lysergide to McLanachan immediately before its delivery to Severs, his presence in the vicinity immediately thereafter, and the contents in his car which included items associated with the drug delivery, any harm in using the conversation at this lunch meeting to assist in identifying the appellant as a party to the transaction pales into insignificance. My primary conclusion is however that the evidence was properly received.

INADEQUATE DIRECTIONS TO JURY RE EVIDENCE OF ACTS OF CO-OFFENDER
(GROUNDS 4 AND 6)

It was submitted that his Honour’s directions in relation to McLanachan’s acts and statements did not sufficiently define the use that could be made of such evidence and did not sufficiently tell the jury its shortcomings.

In the course of the summing up his Honour made the following statements–

“ Well, for the accused it was said, ‘Well, it was there. There are all sorts of

reasons you might think that was unreliable.’ It was chit chat. She was not cross-examined. She did not even give that evidence. This is just something that she is recorded as having said to the purchaser so he would not say, ‘Well, if you cannot make the supply, as you said you would, I will go off and buy it in Sydney.’ That is what he was saying. . . .”

“ In case I did not mention it to you, when I was telling you about the

assertions that were made by Mr Severs - as to the assertions made by Liza, I should say, whether on the telephone or in the lunch-time discussion that is recorded on video, one of the things you have got to keep in mind, of course, is the extent that what she says might - the truth of what she said is relevant. You have got to keep in mind that, as counsel for the accused pointed out to you, and very forcibly in his address, he had no ability to cross-examine her, no ability to pursue with her reasons she may have had for making false statements and statements which might tend to inculpate Mr Wallis. One only has the evidence of what she said and it cannot be tested.”

Mr Kimmins submitted that this does not go as far as is required by the following passage in R v Ahern.

“ . . .It will be proper for him to tell the jury of any shortcomings in the

evidence of the acts and declarations of the others including, if it is the fact, the absence of any opportunity to cross-examine the actor or maker of the statement in question and the absence of corroborative evidence. Where it is appropriate, it will not be difficult to instruct a jury that they should not conclude that an accused is guilty merely upon the say so of another nor will that be an instruction which it is difficult to follow.”[11]

[11]           Ahern (above) at p 104.

Reference was also made to a statement of Badgery-Parker J (with whose judgment

Hunt CJ at CL and Allen J agreed) in Chai (1992) 60 A Crim R 305 at 341-342.

“ . . . It would, however, in my view have been preferable had he at some

stage in the summing up isolated those portions of the evidence of the acts and declarations of the co-conspirators which could be seen to involve an implied assertion of the applicant’s participation in the conspiracy, to point out to the jury that these stood as evidence not only of a circumstantial sort but as direct evidence of the applicant’s participation, and to draw their attention to the fact that the appellant had no opportunity of testing the evidence by any cross-examination of the persons alleged to have made these statements to Choy, for even if the jury accepted, after consideration of all the attacks upon his credibility, the evidence of Choy that these things were said, it still does not necessarily follow that those who said them to Choy were speaking truth. In my view it is always desirable to draw a jury’s attention to the hearsay nature of the evidence, indicating that although the law permits them to take it into account, they ought scrutinise it with care and ought too readily to not conclude that the accused is guilty merely upon the say so of another. In the present case, of course, once Choy’s evidence was accepted, there was ample evidence of the accused’s participation, quite apart from the statements about him made in Hong Kong, so that the failure to give an express direction of the kind that I have in mind cannot be seen to have prejudiced the accused. . .”

“ Where, as here, evidence of the acts and statements of co- conspirators is admissible, but the basis upon which one part of the evidence is admitted and the purpose for which it may be used differs from the basis on which the other evidence is admissible and the purpose for which the other evidence may be used, the trial judge should take care to explain to the jury the limited purpose for which certain parts of the evidence were admitted: see Ahern at 104; 185.”

In the first place the above passages do not express rigid requirements. In Chai (which was a case of conspiracy) the court recognised that the general advice proffered by Badgery-Parker J did not even need to be followed in that particular case. In the second place the statements of the learned trial judge in substance satisfied the substance of the suggestions made by the High Court in Ahern, although it is true, as Mr Kimmins submitted, that his Honour did not expressly state that the jury should not conclude that an accused is guilty merely upon the say-so of another. Such a statement was no more than a suggestion in Ahern that it be used “where it is appropriate”.

It would be unfortunate if trial judges were to be saddled with the requirement that they give to the jury all the numerous overlays and glosses that can readily be found in decided cases irrespective of the nuances of the case, and that if they do not give such statements they commit an error upon which a verdict may be set aside. In my view the main feature of evidence of acts and statements of co-offenders is that it is merely evidence of what the co-offender said and did, rather than evidence of the truth of what the co-offender says. Here the trial judge adequately drew attention to the proper context of McLanachan’s statements and their potential unreliability.

It was also objected that reference to counsel’s arguments was insufficient and that the authority of the judge’s office needed to be given to such directions. A close reading of his Honour’s direction however shows that this requirement was amply satisfied.

Finally (under Ground 6) it was submitted that an additional warning should have been given in relation to statements made by McLanachan similar to the warning that would have been given if she (an accomplice) had been called in court as a witness. This distorts the purpose of the rule relating to warnings when evidence is given in court by an accomplice.[12] There is a considerable difference between evidence of what an accomplice is seen to be doing and saying, and evidence that an accomplices chooses to give in court. There is no good reason, by analogy or otherwise, that would require a trial judge to sum up along such lines.

[12]           Notwithstanding the amendments to s.632 of the Code, such warnings are still desirable.

In my view the above criticisms of the summing up are mere pinpricks. Sufficient warnings about the nature of such evidence were given.

I accordingly conclude that there is no merit in grounds 4 and 6.

THE WEISSENSTEINER DIRECTION (GROUND 2)

A direction was given in terms now commonly referred to as the Weissensteiner[13] direction. A strong circumstantial case had been presented and the accused chose not to give evidence that might place some different interpretation upon the evidence from that which it might naturally bear. It was not submitted that such a direction, including an observation that in the absence of explanation the jury could feel safer in drawing an adverse inference from the evidence, was inappropriate. The objection is that there was insufficient warning that there might be other reasons why he had decided not to give evidence, which would dispel the adverse inference.

[13] (1993) 178 CLR 217.

However his Honour did give a direction along these lines.

“ Now, you might say: well, we are not satisfied anyway, there are all sorts

of other explanations, and I must tell you that there may be other reasons altogether quite apart from his ability to say something that would exculpate himself, there might be other reasons altogether you would infer why he decided not to give evidence. There might be all sorts of reasons. Lots of people do not give evidence in cases because - for reasons that they have a bad demeanour or they have problems in communicating, they are not persuasive. Sometimes people are advised not to give evidence, it could have a worse effect on the jury if they did give evidence than if they do not. They just keep out and keep quiet, so there are all sorts of reasons. . .”

Mr Kimmins was unable to suggest any particular examples that the learned trial judge should have given to illustrate the “other reasons”, although members of this court are aware that counsel sometimes suggest preservation of the right of final address as such a reason. That however is not a reason which a trial judge is bound to put to the jury in the context of a Weissensteiner direction. The objection maintained on appeal is that the hypothetical examples given by his Honour (bad demeanour, problems in communicating, inability to be persuasive, person advised not to give evidence, all sorts of reasons) were damaging, and that the judge should have given no examples at all. In the context of such a direction, these are merely possible examples of why a person may, even though innocent, decide not to give evidence.

No error is demonstrated in this respect.

EVIDENCE OF SEVERS WHEN UNCORROBORATED (GROUND 5)

This relates to the evidence in paragraph (e) of the summary. In most other instances, the evidence of Severs (an undercover policeman) was corroborated by actual tapes of conversations. In this instance however he did not have a device attached to his telephone, and in the result the only available recording was of his own statements during that call, but not of McLanachan’s responses. Accordingly the evidence to that extent was uncorroborated. Mr Kimmins submitted that a warning should have been given of the dangers of convicting the accused on that evidence alone. An attempt was made to rely upon McKinney v The Queen[14] for that proposition. In my view that case has no application and the present circumstances are a far cry from those in which McKinney requires a warning to be given. The present evidence relates to a fact in issue and it raises no considerations of vulnerability of an accused in police detention. Neither is the evidence in the nature of a confessional statement. No warning of the kind suggested was called for in the present circumstances.

[14] (1991) 171 CLR 468.

An adequate circumstantial case was presented, and the summing up was such as to permit proper consideration by the jury. The appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	C.A. No.86 of 1998
Before Pincus	J.A.

Thomas J.A.

Lee J.

[R. v. Wallis]

T H E Q U E E N

v.

STEPHEN JOHN WALLIS

Appellant

REASONS FOR JUDGMENT - LEE J.

Judgment delivered 21 August 1998

I have read the reasons of Pincus J.A. and Thomas J.A. I agree with the reasons of Thomas J.A. and the order proposed.