The Queen v Bradbury and Marshall - [2022] NTSC 35

CITATION:The Queen v Bradbury & Marshall [2022] NTSC 35
PARTIES:THE QUEEN

v
BRADBURY, Kurt
AND
MARSHALL, Benjamin

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NOs:22021867 & 22101591
DELIVERED:  29 April 2022
HEARING DATES:  10 March 2022 & 29 March 2022
JUDGMENT OF:  Burns J
REPRESENTATION:
Counsel:
Crown:D Castor
First co-accused:  S McMaster
Second co-accused:                   M Hubber
Solicitors:
Crown:Office of the Director of Public Prosecutions
First co-accused:  Maleys Barristers & Solicitors
Second co-accused:                   Hubber Legal

Judgment category classification:    C
Judgment ID Number:  Bur2206
Number of pages:  20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Bradbury & Marshall [2022] NTSC 35

No. 22021867 & 22101591
BETWEEN:

THE QUEEN

AND:

KURT BRADBURY
First co-accused

AND:
BENJAMIN MARSHALL
Second co-accused

CORAM: BURNS J
REASONS FOR JUDGMENT
(Delivered on 29 April 2022)
Introduction

By an indictment dated 3 November 2021, the accused Benjamin Marshall and Kurt Bradbury were jointly charged with one count of intentionally supplying a commercial quantity of a dangerous drug, being methamphetamine, on 8 July 2020. On 10 March 2022 the Crown applied to lead coincidence evidence against the accused at their trial. On the same date the accused Kurt Bradbury applied to have his trial heard separately to that of Benjamin Marshall. At that time, the joint trial of the two accused was due to commence on 4 April 2022. On 1 April 2022 I informed the parties that the Crown’s applications to lead coincidence evidence were allowed and that the application for separate trials was refused. I told the parties that I would publish my reasons at a later time. These are those reasons.
The Crown case against the accused
The Crown alleges that on a date prior to 29 June 2020 the accused Benjamin Marshall removed internal door panelling from a black Hyundai Tucson motor vehicle bearing New South Wales numberplates BM73MZ (the Tucson). He then deposited two bags into the door cavity in preparation for delivery to Darwin. One of the bags contained 989.2 g of methamphetamine and the other bag contained 998 g of an inert substance.
On 29 June 2020, an unidentified associate attended Shaw’s Transport Depot in Sydney, New South Wales where he requested the Tucson be transported to Darwin in the Northern Territory. The unidentified associate paid $6,000 for the transport to occur.
At approximately 7:30 AM on 8 July 2020, members from the Northern Territory Police and Organised Crimes Squad and the Dog Operations Unit attended Shaw’s Transport Darwin Depot where a drug screening of the Tucson was undertaken and a Drug Detection dog provided a conditioned response to the vehicle. Police subsequently made an application for and were granted a search warrant authorising them to search the Tucson. During the execution of the search warrant the two packages were located within the internal door cavity of the rear passenger side of the Tucson. The bag containing the inert substance was located within a Woolworths shopping bag. The bag containing the methamphetamine was found within a Berkelouw Books shopping bag.
Subsequent forensic examination revealed the accused Benjamin Marshall’s fingerprints on both the Woolworths shopping bag and the Berkelouw Books shopping bag.
After the packages were seized by police they were substituted with similar packages each containing an inert substance and returned to the inside of the rear passenger door cavity. Police applied for and were granted a s 19 warrant under the Surveillance Devices Act 2007 (NT) and a listening and tracking device was concealed within the Tucson.
On the morning of 9 July 2020, a tow truck driver, BB, received a text message from number 0482 570 784 asking him to pick up the Tucson from Shaw’s Transport and providing details of its colour and registration plates. This was the second towing job that BB had received from this number, with the previous towing job a number of months earlier requiring him to transport a different vehicle from Stuart Park to Kurt Bradbury’s residence at 13 Cocos Grove, Durack.
At approximately 2 PM that afternoon BB drove his tow truck to Shaw’s Transport Depot in Darwin and collected the Tucson. He had been directed to deliver the vehicle to 16 Royal Circuit, Durack. That location is within walking distance from Kurt Bradbury’s residential address on Cocos Grove. The surveillance device placed inside the Tucson recorded that the vehicle was loaded onto the tow truck at about 2:10 PM before being driven towards Durack.
At approximately 2:26 PM, the surveillance device recorded that BB arrived at and parked outside of 16 Royal Circuit, Durack. BB was approached by Kurt Bradbury who had alighted from a Holden Commodore and was speaking on a mobile phone. BB spoke with Kurt Bradbury before unloading the Tucson from his tow truck onto the roadside. Kurt Bradbury took possession of the keys for the Tucson from BB and left the Commodore parked in the vicinity of Maximilla Court, Durack. Kurt Bradbury then drove the Tucson away from Royal Circuit at 2:32 PM and proceeded to drive around the surrounding streets.
While Bradbury was driving the vehicle, the listening device captured the following conversation:
BRADBURY: Hey, oi can I meet you just down the street from mine and you put it in my driveway.
(Nil response heard)
BRADBURY: Could you put it in, like I’ll meet you on Cocos down the end and you just put it in my driveway, I just don’t want Jessi knowing that I’ve gone and picked this up.
UNKNOWN MALE: I’m parking away from yours.
BRADBURY: Shit, hold on.
The Tucson was then observed to be parked in the vicinity of 12 Cocos Grove, Durack, adjacent to Bradbury’s residential address. The vehicle remained in this location until 2:56 PM. While the vehicle was parked at that location, the listening device captured the following conversation:
UNKNOWN MALE: Fuck man, I’m so keen to get this over with fucking dram. Thanks for helping out bro. Oi, when you come down to Sydney, I got you.
BRADBURY: What did you have Steve agree on anyway with the coin?
UNKNOWN MALE: For what coin?
BRADBURY: Like for doing this, do I get anything?
UNKNOWN MALE: Oh yeah, he wants to be a stingy bastard. I think I’m just going to have to give you extra out of my pocket for helping me out.
BRADBURY: Why’s he being stingy? I’ve helped him out with this twice now, likely surely you should have some sort of respect for that.
During this period, the listening device also captured sounds which the Crown alleges were consistent with Bradbury and the unknown male removing the rear passenger door trim from the Tucson and retrieving the substituted packages from within the door frame.
The unknown male then drove Bradbury in the Tucson to Maranthes Place, Durack, where the Tucson was left abandoned.
At approximately 3:08 PM, Bradbury drove the Holden Commodore through Durack and up into the Palmerston CBD area before a traffic apprehension was conducted by detectives from the Drug and Organised Crime Squad. Bradbury was observed to match the description of the person observed by surveillance taking possession of the Tucson from BB. At approximately 3:30 PM, Bradbury was arrested and conveyed to the Palmerston Watch House. Following Bradbury’s arrest, detectives located and seized the abandoned Tucson on Maranthes Place, Durack.
A mobile telephone was located on the dashboard of the Tucson. This phone had not been in the vehicle when police swapped the drugs for inert substances. The contents of the mobile phone were later analysed and material was found linking the phone to Bradbury. When police seized the vehicle on Maranthes Place, the rear passenger side door trim was in place. Police removed the door trim and observed that the bags of inert substances previously placed there by police were missing. A forensic examination of the vehicle revealed Bradbury’s fingerprints on two locations on the outside of the driver’s door and Marshall’s fingerprints on two locations on the inside surface of the inner panel on the rear passenger door.
On Wednesday 13 January 2021, the accused Marshall flew into Darwin from Sydney and was arrested by police at 1:20 PM at the Nightcliff Shopping Centre.
The application for separate trials
The application by Bradbury to be tried separately to Marshall was based upon the following submissions:
a)    the Crown case against Bradbury was weaker than that against Marshall. It was submitted that the fingerprint evidence implicated Marshall in the importation of the drug into the Northern Territory from Sydney, but it did not implicate Bradbury;
b)   there was no evidence of any communication or collusion between Bradbury and Marshall at any time during the course of the alleged offending;
c)    at the time of Bradbury’s alleged involvement, there were no drugs in the Tucson, the drugs having been removed by police and substituted with inert substances; and
d)   the Crown was proposing to lead coincidence evidence against Marshall which would not be admissible against Bradbury.
Bradbury submitted that it was likely that his defence would be very different to that advanced by Marshall, and that there was a risk that the jury would be confused. He further submitted that there was a risk that the jury could rely upon evidence admissible only against Marshall in order to convict Bradbury.
The Crown did not accept that the case against Bradbury was weaker than that against Marshall, as the case against both accused was circumstantial and required inferences to be drawn from the available evidence. The Crown also submitted that as Bradbury had not revealed the nature of his defence, there was no identifiable basis for concluding that a jury would be incapable of understanding and applying relevant directions given to them. Relevant directions to the jury could also identify the evidence which was admissible only against Marshall.
The principles to be applied to such an application are well settled. Persons accused of a joint criminal enterprise are usually tried together, although the court has a discretion to order separate trials in the interests of justice: Lobban v The Queen [1995] 1 WLR 877. In R v Webb & Hay (1992) 59 SASR 563, King CJ, with whom Cox and Matheson JJ agreed, stated (at 585) that there are “strong reasons of principle and policy” why persons charged with jointly committing an offence should be tried together, although this principle must give way if there are “sufficiently cogent reasons indicating the need for separate trials”. The prima facie rule that those jointly charged with a crime should be tried together is not easily displaced: The Queen v Casimiro & Pinto (No 2) [2020] NTSC 46 at [68] per Kelly J, citing Holden v R (1990) 52 A Crim R 32 at 44.
At the time the application for separate trials was framed, the Crown was proposing to lead coincidence evidence against Marshall but not against Bradbury. By the time the application for separate trials came to be heard, that position had changed and the Crown was also proposing to lead coincidence evidence against Bradbury. That, if anything, added weight to the application by Bradbury because the result of the Crown leading different coincidence evidence against each accused was that there was further evidence admissible only against one accused which would not be admissible against the other accused.
The factual issues in the trial of the accused were narrow. I formed the opinion that the jury, properly instructed, would have no difficulty in identifying those parts of the Crown case which applied only to the accused Bradbury and those parts which applied only to the accused Marshall. There was no reason demonstrated to depart from the ordinary assumption that the jury would follow the directions given by the trial judge: Gilbert v The Queen (2000) 201 CLR 414 at [13].
I did not accept the proposition that the Crown case against Bradbury was materially weaker than that against Marshall, to the extent that there was a risk of a miscarriage of justice if the two accused were tried together. The evidence linking the two accused to the alleged joint enterprise was different, but the Crown case against each accused was circumstantial and could not be described as inherently weak. Appropriate directions to the jury could ensure that the accused Bradbury was not convicted simply on the basis of association, or perceived association, with the accused Marshall.
The fact that the methamphetamine had been removed by police from the Tucson before the accused Bradbury took possession of the vehicle on 9 July 2020 may mean that the accused Bradbury may have legal arguments available to him which would not, on the face of it, be available to the accused Marshall. That did not appear to me to be a good reason for departing from the general rule that the alleged co-offenders should be tried together.
For these reasons, I refused the application for separate trials.
The application to lead coincidence evidence against the accused Marshall
The Crown served a notice under s 98(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (the notice) on the accused Marshall, advising him that the Crown intended to adduce coincidence evidence at his trial. The notice stated that the proposed coincidence evidence related to the following facts in issue at the accused’s trial:
Whether the accused caused methamphetamine within a bag to be inserted within the door of a Hyundai Tucson NT registration BM73MZ for the purpose of transporting the methamphetamine from an unknown origin in Sydney to Darwin.
The notice stated that the proposed evidence would be adduced to prove that the accused Marshall:
a) had a particular state of mind, namely, knowingly possessing a large commercial quantity of methamphetamine for the purpose of supply; and
b) did a particular act, namely, supplying a large commercial quantity of methamphetamine.
The evidence which the Crown proposed adducing as coincidence evidence in Marshall’s trial was evidence of an incident that allegedly occurred on 13 January 2021. The Crown proposed leading evidence that at approximately 11 AM that day the accused arrived in Darwin on a flight from Sydney and was picked up by an associate, Renata Wegschaider. It was alleged that shortly thereafter, the accused Marshall, Wegschaider and another associate, Anthony Woodman, attended Brandt Road, Micket Creek and dug up 500 g of methamphetamine that was buried at that location. They then returned to room 543 of the Coconut Grove Holiday Apartments at 146 Dick Ward Drive, Coconut Grove. A search warrant was obtained by police to search that room, and 500 g of methamphetamine, $4700 in cash and a number of mobile phones were located.
The application to lead coincidence evidence is governed by the provisions of Part 3.6 of Chapter 3 of the Evidence (National Uniform Legislation) Act 2011 (NT). In particular, the following provisions are significant:
98The coincidence rule
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Note for subsection (1)
One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.
(1A)To avoid doubt, subsection (1) includes the use of evidence from 2 or more witnesses claiming they are victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue in the proceeding.
(2) Subsection (1)(a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100; or
(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
The Crown submitted that the proposed coincidence evidence was relevant to rebutting any innocent explanation that might be offered or suggested for the accused Marshall’s fingerprints being found on the bags secreted inside the Tucson. The Crown referred me to the decision of Mildren AJ in R v Dickens [2016] NTSC 7, where His Honour stated, at [65]-[66]:
Evidence sought to be admitted under the coincidence rule is a kind of circumstantial evidence where, although each piece of the evidence when considered individually could not lead to any conclusion, the evidence considered as a whole when considered in the light of all of the evidence to be relied upon, enables the trier of fact to conclude that a fact in issue has been proven.
The contended similarities do not have to be “strikingly similar”, although the more similar they are, the more likely it is that the similarities will have probative weight. In CV v The DPP [2014] VSCA 58, the Court said at [10]:
There may be such a relationship between the offence in purpose, circumstances and mode of conduct that coincidence reasoning will be open. The necessary relationship is not confined to events, each of which possesses our usual characteristics in its execution. The evidence of each may provide strong support for the others, making it just to admit them all notwithstanding the prejudicial effect of admitting the evidence.
(Footnotes omitted)
The accused Marshall had not, as at 1 April 2022, admitted any wrongdoing with regard to the events of 13 January 2021. He had been charged with an offence or offences arising out of those events, but he was awaiting trial on those charges. It appeared almost inevitable that an application to lead evidence of the events surrounding the present charges would have also been made at the accused Marshall’s trial on the charges relating to the events of 13 January 2021 as coincidence evidence. The order in which the accused Marshall’s trials took place did not create any relevant prejudice.
The relevant similarities which could be identified between the events the subject of the present charges and the events of 13 January 2021 were:
a)    that on each occasion there was evidence that the accused Marshall was involved in the transportation of a commercial quantity of methamphetamine;
b)   each involved the Northern Territory; and
c)    each involved a connection with Sydney. The events of 8 July 2020 allegedly involved a consignment of methamphetamine from Sydney to the Northern Territory, and the events of 13 January 2021 involved the accused Marshall flying from Sydney to the Northern Territory and proceeding to assist in digging up and transporting a commercial quantity of methamphetamine.

I was satisfied that the proposed coincidence evidence in relation to the accused Marshall had significant probative value. The jury could reason that, having regard to the proposed coincidence evidence and the other evidence against the accused Marshall, it was improbable that the events of 8 July 2020 and 13 January 2021 occurred coincidentally, with the accused Marshall being uninvolved in the transportation of the methamphetamine in the Tucson on 8 July 2020 or otherwise being unwittingly involved. I was satisfied that the danger of unfair prejudice arising from the evidence of the events of 13 January 2021 could be mitigated by appropriate directions to the jury, such that the probative value of the evidence outweighed any potential prejudice.
For this reason, I allowed the Crown application to lead the proposed coincidence evidence.
The application to lead proposed coincidence evidence against the accused Bradbury
The Crown served a notice under s 98 (1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (the notice) on the accused Bradbury, advising him that the Crown intended to adduce coincidence evidence at his trial. The notice stated that the proposed coincidence evidence related to the following facts in issue at the accused’s trial:
Whether the accused took possession of a Hyundai Tucson NT registration BM73MZ for the purpose of facilitating the supply of a large commercial quantity of methamphetamine.
The notice stated that the proposed evidence would be adduced to prove that the accused Bradbury:
a) had a particular state of mind, namely, knowingly possessing a large commercial quantity of methamphetamine for the purpose of supply; and
b) did a particular act, namely, supplying a large commercial quantity of methamphetamine.
The coincidence evidence which the Crown proposed leading at the trial of the accused Bradbury related to a conviction recorded by Barr J on 20 October 2017 upon a plea of guilty by the accused to a charge that on 21 April 2017 he possessed a commercial quantity of methamphetamine. The quantity of methamphetamine possessed by the accused Bradbury at that time carried with it a legislative presumption that the accused intended to supply the methamphetamine for commercial gain. The accused did not contest that presumption in the proceedings before Barr J.
The facts relating to the proceedings before Barr J were that on 20 April 2017 a police officer was conducting mail screening at Winnellie Post Office using a drug detector dog. The dog gave a tell-tale response to a parcel addressed to the accused Bradbury. Police subsequently obtained warrants and seized the parcel. Inside was a tin with a cryovac bag containing a crystalline substance, which was later examined and found to be 111.70 g of methamphetamine. Police repackaged the parcel, substituting an inert substance, and then waited for the accused to come and collect it from the Winnellie Post Office.
On Friday, 21 April 2017, the accused Bradbury went by taxi to the Winnellie Post Office, signed for the parcel, and then returned to the taxi with the parcel. The taxi was later stopped by police and the accused Bradbury was arrested. In his possession at that time was the parcel, two mobile phones, a laptop computer and $6,335 in cash.
The same provisions of the Evidence (National Uniform Legislation) Act 2011 (NT) referred to above in the context of the application to lead coincidence evidence against the accused Marshall are also relevant to the application to lead coincidence evidence against the accused Bradbury.
The relevant similarities that could be identified between the events that are the subject of the present charge and the events of 21 April 2017 are:
a)    each case involves an importation of a dangerous drug into the Northern Territory;
b)   in each case the dangerous drug was methamphetamine;
c)    the quantity of the dangerous drug in each case was a commercial quantity;
d)   each case involved the drug being imported by an innocent intermediary (in 2017 it was Australia Post and in 2021 it was Shaw’s Transport); and
e)    in each case the accused Bradbury collected the drug from an innocent intermediary.
I was satisfied that the proposed coincidence evidence in relation to the accused Bradbury had significant probative value. The jury could reason that, having regard to the proposed coincidence evidence and the other evidence against the accused Bradbury, it was improbable that the events of 8 July 2020 and 21 April 2017 occurred coincidentally, with the accused Bradbury being uninvolved in the transportation of the methamphetamine in the Tucson on 8 July 2020 or otherwise being unwittingly involved. I was satisfied that the danger of unfair prejudice arising from the evidence of the events of 21 April 2017 could be mitigated by appropriate directions to the jury, such that the probative value of the evidence outweighed any potential prejudice.
For these reasons, I allowed the Crown application to lead the coincidence evidence.

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