Tasmania v AB and CD - [2020] TASSC 49

[2020] TASSC 49

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v AB and CD [2020] TASSC 49

PARTIES:  STATE OF TASMANIA
  v
  AB
  CD

DELIVERED ON:  19 December 2019
DELIVERED AT:  Hobart
JUDGMENT OF:  Brett J
CATCHWORDS:

Criminal Law – General matters – Ancillary liability – Conspiracy – Evidence – Co-conspirator's rule – Preconditions for admissibility of hearsay representations of a co-conspirator – Whether rule is applicable in a case where the evidence is admitted to prove the existence of a conspiracy.

Criminal Code (Tas), ss 158, 297, 326.
Evidence Act 2001 (Tas), ss 18, 66.
KRM v The Queen [2011] HCA 11, 206 CLR 221; Georgiadis v The Queen [2002] TASSC 58, 11 Tas R 137, considered.
Ahern v The Queen (1988) 165 CLR 86, followed.
Foneska v The Queen [2003] WASCA 111, 140 A Crim R 395; R v Hoar (1981) 148 CLR 32; R v Moore [1988] Qd R 252; R v Pollitt [1991] 1 VR 299; Tasmania v Green [2007] TASSC 54, 16 Tas R 318, referred to.
Aust Dig Criminal Law [2158]

REPRESENTATION:

Counsel:
             State:  L Mason S C
             Accused:  K Baumeler, E Hughes
Solicitors:
             State:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 49
Number of paragraphs: 27

Serial No 49/2020

STATE OF TASMANIA v AB and CD

REASONS FOR RULING BRETT J

19 December 2019

The indictment in this case charges the accused with murder and conspiracy contrary to ss 158 and 297 of the Criminal Code.
The charges have been joined in the same indictment pursuant to s 311(2) of the Criminal Code, on the basis that they arise substantially out of the same facts or closely related facts. As I understand it, there is no dispute to the legality of the joinder.
Each accused has pleaded not guilty to the count or counts relevant to him. A jury has not yet been empanelled. The accused have both joined in an application for the indictment to be severed, that is, for the trial in respect of count 1 to proceed separately to the trial in respect of count 2. In relation to count 2, there is no application seeking a separate trial for each accused.
The Court's jurisdiction to make the order sought by the application arises from s 326(3) of the Code. That section provides as follows:
"(3) Where, before trial or at any stage of the trial, it appears to a judge that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one crime in the same indictment, or that for any other reason it is desirable to direct that he should be tried separately for any one or more crimes charged in the indictment, the judge may order a separate trial of any count or counts in such indictment."
It is well established that prejudice or embarrassment for the purposes of this provision, may arise where the evidence in respect of one count is not admissible in respect of another count, and the nature of the evidence is likely to cause prejudice in respect of the latter count: KRM v The Queen [2001] HCA 11, 206 CLR 221. That proposition encapsulates the basis of the application relied upon by each accused. In essence, the argument from each is that evidence relevant to one count will not be admissible on the trial of the other count, and that this will then cause prejudice which cannot be appropriately obviated by direction. I do not understand the application to be argued on any other basis.
It will, therefore, be necessary for the purpose of this decision to consider issues relating to the admissibility of evidence against each accused, and the cross-admissibility of evidence relevant to each count. However, it is not intended nor necessary to finally determine these questions. Rulings on the admissibility will be more appropriately determined at the start of or during the trial and, in respect of cross-admissibility towards the end of the trial for the purposes of directions, assuming of course, that this application is unsuccessful. The purpose of consideration of issues of admissibility and cross-admissibility at this point is simply to determine whether embarrassment or prejudice is likely to arise, and if so, the extent thereof, if both counts are tried together.
The prosecution case can be briefly summarised as follows. The deceased died at home. The deceased's husband had died two days earlier. There is evidence to suggest that the deceased was distressed after his death. The prosecution case is that CD had been administering medication to the deceased in the period leading up to her death, ostensibly because of a deterioration in her health after the death of her husband. The accused and other people were present in the house in this period. The prosecution case is that both accused were present with the deceased in her bedroom at the time of her death.
The prosecution alleges that CD caused the death of the deceased by administering a lethal dose of drugs to her over a period of hours over the course of a day. This is the basis of the charge of murder. The mental element asserted is that defined in s 157(1)(a) or, in the alternative, s 157(1)(c) of the Criminal Code.
It is not alleged by the prosecution that AB was a party to the murder. However, the prosecution asserts that he knew that CD was administering drugs to the deceased and was present in the period before and at the time of her death. It is alleged that in the hours immediately after her death, the accused entered into an agreement with each other to provide misleading and false information to police and then took steps to deflect the attention of police away from the true circumstances of the cause of the deceased's death. The formation of the agreement and the actions taken by each accused pursuant to the agreement form the basis of the allegation of conspiracy.
Before I deal with the specific pieces of evidence which each counsel says are admissible on one count but not the other, and hence create prejudice for an accused in respect of the other count, I need to deal with a fundamental and common premise of the defence arguments concerning the admissibility of evidence on each count. These arguments largely rely upon the proposition that some of the evidence admissible to prove that CD murdered the deceased is not relevant and admissible in respect of the allegation that the accused entered into a conspiracy immediately after the alleged murder. It is also included in this proposition that some of the evidence relevant to prove the conspiracy is inadmissible in respect of the murder.
In general terms, this fundamental proposition is without substance. In the circumstances of this case, evidence relevant to one count almost certainly will be relevant with respect to the other. Evidence which is admissible to prove that CD committed murder by the administration of lethal doses of drugs to the deceased is relevant to prove the conspiracy and strongly probative of that crime. The prosecution case is that the administration of drugs to the deceased by CD, with AB's knowledge, on the day of the deceased's death, not only constituted the murder, but also was the catalyst and motive for the conspiracy. This is the prosecution case whether the administration of drugs amounted to murder or not. Accordingly, the evidence relating to the events preceding the death of the deceased is probative of the formation of the conspiracy. Of course, if the prosecution is able to prove that CD murdered the deceased, then the strength of the motive and, hence, the probative value of evidence establishing that fact will be significantly increased.
It follows that any evidence which is admissible to prove the murder will also be admissible to prove the existence of the conspiracy. For example, the prosecution intends to lead contextual evidence concerning the relationship between the deceased and her husband, and evidence surrounding the death of the deceased's husband. Neither counsel has argued that this evidence is not admissible with respect of proof of count 1, but Mr Hughes argues that it would not be admissible in respect of count 2. He submits further that the evidence is emotive and the risk of prejudice is significantly enhanced as a result. I reject the premise of this argument. If the evidence is relevant to prove the fact of murder, then for the reason given above, it is admissible to prove the formation and existence of the conspiracy. It will also be relevant to establish context, and to give the jury a complete understanding of the chronology of events which is relevant to the proof of both crimes.
Further, evidence which is relevant and admissible to the proof of the conspiracy is also likely to be cross-admissible in respect of the proof of the murder. The existence of the conspiracy, as an objective fact, establishes post-offence conduct on the part of CD which has significant probative value in respect of the proof of the alleged murder. The prosecution is entitled to argue that the formation of a conspiracy to cover up the cause of death and deflect the police investigation, entered into between the two men present at the time of the deceased's death, is evidence which establishes a consciousness of guilt on the part of CD, which is highly probative of the allegation that he committed the murder. In this regard, both counsel asserted that evidence of statements made by AB after the death of the deceased, which were not made in the presence of CD, would be admissible in respect of proof of the conspiracy against AB, but would not be admissible against CD in respect of the murder. It was submitted that such statements might be admissible against CD on count 2, but only pursuant to the special rule of admissibility in respect of conspiracy cases, known as the co-conspirator's rule. Mr Hughes made a further submission that the application of the co-conspirator's rule would increase the risk of prejudice to each accused, because the complexity of distinctions to be made by the jury between the use of various pieces of evidence in respect of each accused and each count would be overwhelming and not capable of being appropriately obviated by direction. He pointed to a number of cases in which the view had been expressed that, for this reason, counts alleging a substantive crime and a conspiracy relating to that crime should not be tried together.
I think that these submissions demonstrate a fundamental misunderstanding of the co-conspirator's rule and its application in this case. In my view, the rule is unlikely to have any significant role to play in respect of the proof of count 2.
The admissibility of evidence in a conspiracy case was the subject of the High Court decision of Ahern v The Queen (1988) 165 CLR 86. In a joint decision, the Court discussed the admissibility of acts and declarations of one conspirator, out of the presence of the other conspirator, in the case against the latter. It was held that the admissibility of such evidence depended on the purpose for which it is admitted. Hence, in accordance with fundamental principle, if evidence of a declaration or act is put forward for the purpose of proving the facts expressly or impliedly asserted by the person making the representation or performing the act, then the evidence will be caught by the hearsay rule and hence will be inadmissible against the other accused. However, the Court noted the importance, in conspiracy cases, of the distinction between proof of the existence of the conspiracy, that is the agreement, and of the participation of each of the alleged conspirators in that conspiracy. Where the fact in issue to which the evidence is said to be relevant is the existence of the conspiracy, acts and statements made by a co-conspirator, or indeed someone else, may be relevant as circumstantial evidence of the existence of the conspiracy, because the fact of the statements or acts supports an inference that the conspiracy exists. Such evidence is not caught by the hearsay rule and is therefore admissible against all alleged conspirators to prove the existence of the conspiracy. On the analysis described above, in this case, such evidence would also be directly relevant to and admissible in respect of the proof of the murder.
These comments were acknowledged and explained by the Court of Criminal Appeal in Georgiadis v The Queen [2002] TASSC 58, 11 Tas R 137. At [53], the Court, in a joint judgment, said:
"[53] The first direction of the learned trial judge that all the evidence written, or oral, that tended to prove the existence of one or more of the charged conspiracies was admissible against each of the accused, to prove the issue of whether there was such a conspiracy, was in accordance with Ahern v R at 93. It was explained in R v Masters (supra) at 461, that in order to establish the existence of a conspiracy, evidence is admissible of acts done or statements made by persons other than a particular accused even if he or she was not present. Evidence of such acts and statements may establish an inference that the agreement which constituted the conspiracy charge had been entered into. The evidence is direct evidence, not hearsay, and it is admissible for that purpose even if the acts were done or the statements were made before the particular accused joined or became a participant in that conspiracy, for it does not depend in any way upon the acknowledgement or acceptance of the truth by that accused of the statements so made."
In Ahern, the Court noted that in some cases, proof of the conspiracy will necessarily establish the participation of each of the alleged co-conspirators in that conspiracy. In such cases, the circumstantial evidence admissible to prove the existence of the conspiracy will also necessarily prove the participation of the accused. However, the Court also acknowledged that there are some cases in which proof of the existence of the conspiracy will not necessarily establish the participation of a particular alleged conspirator. In such cases, acts and declarations outside the presence of that defendant, although admissible to prove the existence of the conspiracy, will amount to hearsay in respect of the participation of that defendant.
It is in this situation that the application of the so-called "co-conspirator's rule" becomes relevant. The evidence which would otherwise be inadmissible hearsay may be admissible pursuant to that rule, if certain preconditions of admissibility are met. Those preconditions were stated by the court in Ahern at 100:
"In our view, the test adopted in Tripodi is the appropriate one. 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."
The rationale for the rule is the implied authority of each conspirator to speak on behalf of the others in furtherance of the conspiracy. Hence, the need for some evidence of the conspiracy and participation by the accused, as a precondition of admission of such representations.
The court then went on to discuss the determinative issue in that case, that is whether the determination of the existence of prima facie or reasonable evidence of the conspiracy and the participation of the accused, is a matter for the judge or the jury. The court settled on the former on the basis that it relates to a precondition for admissibility.
The important point for the purposes of this case, however, relates to the identification of the facts in issue to which the evidence is relevant. Resort to the co-conspirator's rule is only necessary where the evidence is adduced as a hearsay admission to prove the participation of the accused in a conspiracy which is established by other evidence. In this case, the fact in issue to which most, if not all, of the evidence referred to by counsel is relevant, is the existence of the alleged conspiracy. If this fact is established, then the participation of each accused will necessarily also be established. This is not a case such as that in Ahern where the question was whether the accused had participated in an established conspiracy between a number of other persons. This is the type of case referred to by the court in the following reference:
"Often the problem will not arise in any practical way because the acts and declarations of the conspirators considered separately will establish both the fact of the combination and the participation of each of them."
In my view, this is such a case. If there was a conspiracy as alleged, it could only have been between the two persons present at the time of the deceased's death, CD and AB. The separate utterances of each accused, outside the presence of the other, will, in large part, be admissible as circumstantial evidence to prove the existence of that conspiracy, and will thereby also be relevant to prove the participation of each accused in that conspiracy. Further, the evidence will be relevant to the murder charge because the proof of the conspiracy will establish post-offence conduct on the part of CD, which is admissible in the manner already described. Of course, the admissibility of each piece of evidence will require discrete consideration as the trial progresses, but these general observations remove a substantial part of the argument of each party in favour of severance.
I will now consider some of the specific aspects of the evidence referred to by counsel for each accused.
· The listening device evidence concerning conversations between AB and his wife. In general terms, this evidence falls into the category of circumstantial evidence directly relevant to establish the existence of an agreement and, hence, relevant against both accused on count 2 and against CD on count 1. The conversations are not admitted in order to prove the truth of the implied assertions made in them. The relevance of the conversations, or at least most of them, is the fact that they had taken place at all supports the proof of the existence of the agreement. The evidence is not being admitted to prove the truth of assertions made in the representations. Of course, it is possible, that in respect of particular pieces of evidence, the purpose of admission will be a hearsay purpose. I have not analysed every word of evidence to determine this question. However, I am satisfied that, in large part, the evidence will be admissible on both counts and against each accused, and this substantially disposes of the argument that either accused will suffer prejudice or embarrassment as a result of a joint trial. To the extent that any specific piece of evidence can be identified as inadmissible against either accused on either count, I am satisfied that this question can be appropriately dealt with by directions. Such directions are not unusual in joint trials. Juries are presumed to understand and follow judges' directions. In my view, embarrassment or prejudice sufficient to justify a severance of the counts in the indictment is not demonstrated by such evidence.
· A particular issue has been identified, however, in respect of recorded conversations between CD and his wife, in which she makes assertions of fact which are not effectively adopted, in whole or in part, by AB. Such evidence may only be admissible for a hearsay purpose, and may be inadmissible unless CD's wife is called as a witness. Even if she gives evidence, the admissibility of such representations will depend on compliance with the requirements of s 66 of the Evidence Act 2001. In particular, the representation must amount to first-hand hearsay, that is CD's wife must have personal knowledge of the asserted facts, and, further, the representation must have been made when the occurrence of the asserted fact was fresh in her memory. Given the timeframes involved, there is not likely to be a significant difficulty with respect to the second requirement. I do not currently have sufficient information to determine whether the first requirement is likely to be met. A further complexity upon which Mr Hughes relies is that CD's wife may not be compellable to give evidence against AB by virtue of the provisions of s 18 of the Evidence Act.
While these arguments raise valid considerations, they do not seem to me to have any significant impact on the severance issue. If CD's wife's out of court representations are admissible in respect of the conspiracy charge, they are, for the reasons given above, also admissible against CD in respect of the murder charge. If inadmissible, they will be inadmissible on both counts. In respect of her testimony in court, if she is not compellable against AB, she will remain compellable against CD in respect of the conspiracy charge and the murder charge. There is no application for separate trials in respect of count 2. Accordingly, there will be a need for a direction to the jury about the use of such evidence, and the jury will be required to engage in the same intellectual exercise in respect of the case against CD across both counts. Accordingly, in my view, these arguments do not affect the question of severance.
· Ms Baumeler relies heavily on the submission that an interview conducted between police and AB will be admissible against AB on the conspiracy charge, but inadmissible against CD, at least on the murder charge. She asserts that there will be significant prejudice to CD in respect of the murder charge, not able to be appropriately obviated by direction.
I will accordingly consider Ms Baumeler's submissions on the assumption, without determining the question, that representations made by AB during the course of the police interview are admissible only for a hearsay purpose and, accordingly, will not be admissible against CD in respect of either count. This is a likely outcome, even in respect of count 2 alone. Admissions to police are not usually regarded as representations made in the furtherance of the conspiracy, and therefore will not normally attract the benefit of the co-conspirator's rule: Foneska v The Queen [2003] WASCA 111, 140 A Crim R 395. If this is so, there will be a need for the jury to be directed accordingly. This is, of course, not an unusual situation in joint trials, and in my experience, juries have little difficulty understanding and applying such directions. In my view, there is little, if any, risk of significant prejudice or embarrassment arising as a result of this question alone.
The concern identified by Ms Baumeler, however, relates to assertions made in questions by the police during the course of the interview, concerning their suspicions and beliefs in respect of the conduct of CD. The relevant assertions are invariably rejected or at least not adopted and on occasions, not responded to at all, by AB. To the extent that he has not accepted the proposition in the question, it will not constitute a representation of fact by him. The jury will be directed, of course, to ignore factual assertions in questions which are not accepted or adopted by the person being interviewed, but Ms Baumeler submits that it will create unfair prejudice to CD for the jury to hear this interview in his murder trial. I think there is some substance in this submission in respect of this interview, but I also think that the problem can be dealt with adequately without severance of the counts. Again, it is extremely common for interviews to be admitted, which contain questions of this nature. Juries are routinely directed to ignore assertions in questions which are not accepted, in whole or in part, by the interviewee. In this case, it seems to me the jury will have little difficulty identifying police questions as simply part of the overall case theory of the prosecution which will, in any event, be a dominant feature of the trial of count 1. Finally, it is highly probable that parts of the interview which are not accepted and hence constitute evidence of little or no probative value, but which create unfair prejudice towards either accused, will be struck from the interview. In short, my view is that any prejudice arising from the use of this evidence against CD, or against AB for that matter, can be obviated by appropriate direction and careful application of the rules of evidence.

In addition to these issues I have given consideration to other matters. For example, is there an inherent prejudice which may arise against AB from the joinder of the conspiracy charge with the murder charge? If the jury is satisfied that CD has committed the murder, could the mere significance of that finding overwhelm and improperly influence its approach to the question of whether AB entered into a conspiracy with him to cover up the murder? There is potential for this, but again I am satisfied that this can be adequately dealt with by directions. I do not believe that a jury will be unable to distinguish between the respective culpability of each accused. The issues will be clearly defined, notwithstanding that the events are closely related to each other.
Finally, I make a brief comment on the reference by Mr Hughes to cases which disapprove of the practice of joining a conspiracy charge with a substantive charge, in the same indictment. For example, R v Hoar (1981) 148 CLR 32; R v Moore [1988] Qd R 252 and R v Pollitt [1991] 1 VR 299. In Tasmania v Green [2007] TASSC 54, 16 Tas R 318, Underwood CJ reviewed these and other authorities and concluded that:
"There is no rule of law that requires a conspiracy count to be severed from a count that charges commission of the crime in respect of which it is alleged there was the conspiracy."
I respectfully agree. In any event, the cases in question deprecate the practice in respect of a conspiracy charge that relates to an agreement to commit the substantive crime, which is also charged and joined in the same indictment. The concern expressed in those authorities is that the same piece of evidence can, in those circumstances, have a different purpose and basis of admissibility in respect of each charge, and the complexity that can arise may create unfairness which cannot be adequately dealt with by jury direction. This is not such a case. The conspiracy alleged is not to commit the substantive crime, but rather constitutes post-offence conduct which is separate and discrete from the commission of the substantive crime. For the reasons already given, the majority, if not all, of the evidence is likely to be admissible on both counts. Accordingly, the difficulties identified in the said cases, upon which the relevant comments were based, will not arise in this case.
I am not satisfied that either accused has established that it is desirable that the indictment be severed and the counts tried separately. In particular, it has not been demonstrated to me that either accused will be prejudiced or embarrassed by a joint trial. The application is refused.