The State of Western Australia v Pelle - [2021] WADC 129

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PELLE [2021] WADC 129
CORAM:   STAUDE DCJ
HEARD:   15 DECEMBER 2021
DELIVERED          :   Ex tempore
PUBLISHED           :   22 DECEMBER 2021
FILE NO/S:   IND 2511 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
AND

ANTONIO PELLE

TONY LARUSSA

Catchwords:

Criminal law - Procedure - Severance of counts on indictment - Whether Firearms Act counts properly joined - Whether evidence of Firearms Act counts is cross-admissible on Misuse of Drugs Act count

Legislation:

Criminal Procedure Act 2004 (WA)
Firearms Act 1973 (WA)
Misuse of Drugs Act 1981 (WA)

Result:

Severance application refused

Representation:

Counsel:

The State of Western Australia	:	Ms K Robinson
First Accused	:	Mr K J Bonomelli
Second Accused	:	Mr J Condon QC and Mr A J C Mossop

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
First Accused	:	K J Bonomelli
Second Accused	:	Garde-Wilson Lawyers

Case(s) referred to in decision(s):

Mansell v The State of Western Australia [2009] WASCA 140
WRT v The State of Western Australia [2021] WASCA 161
Zammit v The State of Western Australia [2007] WASCA 66

STAUDE DCJ:

[This judgment was delivered extemporaneously on 17 December 2021 and edited from the transcript.]

Applications by the second named accused, Mr Larussa were heard on 15 December. The first, dated 1 November 2021, sought severance of the indictment, specifically a separate trial on counts 3, and 5 - 11, and an order for production of documents pursuant to a summons to produce served on the Commissioner of Police. The latter aspect has been resolved so I am only concerned with the severance issue.
The State has joined 11 counts on the indictment relying on cl 7(3)(b) of sch 1 div 2 of the Criminal Procedure Act 2004 (WA), which provides that a prosecution notice or indictment may charge one or more persons with two or more offences if the offences:
(a)form or are part of a series of offences of the same or a similar character, or
(b)are alleged to arise substantially out of the same or closely related acts or omissions, or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose and may do so without alleging a connection between the offences.
The defence application is made pursuant to s 133(3)(a) of the Criminal Procedure Act which provides that if a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains two or more charges, the court may order that the charges be tried separately on one or more of the charges.
Section 133(3)(a) is subject to s 133(5) which provides relevantly that in deciding whether to make an order under s 133(3) in respect of an indictment to be tried by a jury, it is open to a superior court to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury, and to so decide irrespective of the nature of the offence or offences charged, and to so decide even if the evidence on one of the charges is inadmissible on another.
If, however, evidence on the charges on an indictment is cross‑admissible, there can be no doubt that the charges are properly joined: Zammit v The State of Western Australia [2007] WASCA 66 [24] (Steytler P), nor can there be any relevant prejudice from the joinder of those charges: Mansell v The State of Western Australia [2009] WASCA 140 [36] (Miller JA).
Any prejudice that may be occasioned by different charges being tried together would result from the jury hearing evidence of other conduct that they would not hear if the charges were dealt with in separate trials. If the evidence is cross‑admissible then ordering separate trials would achieve nothing and could not be justified under s 133(3).
Senior counsel for Mr Larussa has conceded that all of the counts would be properly joined if the evidence in respect of them were cross‑admissible. The defence contention is that the Firearms Act 1973 (WA) offences charged in counts 3 and 5 - 11 are not properly joined because they do not arise out of the same or closely related acts or omissions as the other counts, and that the evidence of those counts is not cross‑admissible on count 1 as it has no relevance to the issue of whether Mr Larussa possessed the methylamphetamine the subject of that count.
Before going to the basis of the application, I will briefly outline the factual context by reference to the indictment and the amended statement of material facts dated 25 February 2020.
The accused, Mr Larussa, is charged with Mr Pelle, with possession of methylamphetamine with intent to sell or supply it to another, and is further charged with 10 Firearms Act offences relating to handguns and ammunition found in the course of the execution of two Misuse of Drugs Act 1981 (WA) search warrants, one at his farm on the Brand Highway at Breera and the other at his home in Ethel Street, North Perth, both on 3 April 2017.
On that day, while the police were at the Breera property executing the warrant, Mr Pelle arrived in a Honda Jazz motor vehicle. The accused, Mr Larussa turned up in a LandCruiser motor vehicle within a few minutes of Mr Pelle's arrival. The drugs the subject of count 1 were located by police in a secret compartment under the rear seat of the Honda Jazz vehicle. There were 10 packets of high purity methylamphetamine found in the compartment each weighing almost 1 kg.
In the LandCruiser, the police found the handgun the subject of count 2, a SIG Sauer P320 and some of the ammunition the subject of count 4, being eight rounds of 9‑millimetre ammunition. In the shed at the property, the police found another handgun, a Glock, which is the subject of count 3, and other ammunition that is encompassed in count 4.
It is apparent that count 4 encompasses two discrete quantities of ammunition found in different places. The State accepts that count 4 should be confined to the eight rounds found in the LandCruiser. The ammunition found in the shed in the Glock magazine and in a drum in which the Glock was found should be the subject of a separate count. For present purposes, I will great count 4 as relating to the eight rounds of ammunition found in the LandCruiser.
In an office on the property the police found another handgun the subject of count 5, a Bruni .22, and various rounds of ammunition the subject of counts 6, 7, 8 and 9. Other rounds of ammunition also encompassed by count 6 were found in the master bedroom of the house at the farming property. Count 6 can also be seen to be problematic as it involves two discrete quantities of ammunition located in different places.
Later the same day, the police executed a search warrant at Mr Larussa's home in North Perth where they found another handgun, a Taurus pistol, the subject of count 10 and a number of rounds of ammunition the subject of count 11. Each of the firearms and the associated quantities of ammunition was unlicensed. The handgun found in the LandCruiser had had its serial number erased, as had the handgun found in the shed.
The State's case is that Mr Larussa drove his vehicle in convoy with the Honda Jazz vehicle driven by Mr Pelle. Mr Larussa had acquired the Honda and had had it modified by the creation of the concealed compartment. The State says that Mr Larussa was armed with a handgun in order to ensure the security of the drugs in the Honda Jazz and in order to maintain control over those drugs and that the handguns and ammunition found at the farm to which the drugs were taken by Mr Pelle were also to protect the drugs as a valuable asset.
The connection to the Ethel Street property in North Perth is that it was Mr Larussa's residence. A spare key to the Honda Jazz was found there. As Mr Larussa does not admit that he was in possession of the drugs or the firearms subject of the 11 counts on the indictment, in each case the element of possession has to be proved inferentially.
The State will argue that the existence of firearms and ammunition at the farm and at his home in North Perth tends to disprove an innocent association with the handgun and ammunition found in Mr Larussa's vehicle. The State also relies on the evidence of the possession of handguns and ammunition as one of a number of indicia of illicit drug dealing and contends that it is therefore relevant to the issue of Mr Larussa's possession of the methylamphetamine.
Although the State did not argue that the evidence of the Firearms Act charges themselves is cross‑admissible as evidence of a propensity to possess unlicensed handguns and ammunition, that much I think, goes without saying.
This is the second application to sever the indictment. The first was dismissed by Lonsdale DCJ on 30 June 2020. The defence did not appeal timeously. The legislation does not permit any extension of time for an appeal from a decision in relation to a severance application.
In the earlier decision, her Honour found that the presence of unlicensed handguns and ammunition at the farm and at the North Perth house was inconsistent with an innocent explanation for the presence in the accused's vehicle of the handgun and ammunition the subject of counts 2 and 4, and also that the evidence of handguns and ammunition found on those properties owned by the accused was relevant circumstantial evidence of the drug possession offence charged in count 1.
Her Honour was satisfied that the possession of handguns and ammunition could be seen as an indicium of drug dealing. Although her Honour did not find expressly that the counts in question arose substantially out of the same or closely related acts or omissions, her Honour did so implicitly on the basis that, as Mr Larussa was connected with the two properties where the handguns and ammunition were found, the requisite nexus existed.
Having found that the counts in question were properly joined, her Honour went on to consider whether the counts should be severed on the basis of prejudice. Her Honour was satisfied that as the evidence of the counts in question was cross‑admissible with the evidence of count 1, the issue of prejudice did not arise.
Her Honour was also satisfied that the jury would understand directions as to the appropriate use of evidence of one count when considering another, and as to inferential reasoning as a means of fact finding.
The defence has brought the second application arguing that it has a different basis. The State has conceded that the court can entertain a second application, but submits that the grounds advanced are no different from those previously argued and that there is no reason to disturb Lonsdale DCJ's ruling.
While I have serious misgivings about whether it is appropriate to entertain the renewed application where no change of circumstances has been shown and where essentially the same arguments have been run, having heard the submissions I will, in the interests of fairness and finality, deal with the matter on its merits.
The threshold question is whether the offences the subject of counts 3 and 5 - 11 are alleged to arise substantially out of the same or closely related acts or omissions as the other counts. The defence concedes that there is a nexus between counts 1, 2 and 4, but submits that the remaining Firearms Act offences have been wrongly joined.
Counts 2 and 4 can be seen to have arisen substantially out of the same or closely related acts as count 1, being the accused's alleged involvement in the transportation of a large quantity of methylamphetamine to his farm. The defence argues that there is no nexus between those counts and those sought to be severed.
On the authority of Zammit v The State of Western Australia, the wording of cl 7(3)(b) should be given a liberal construction. I have been referred also to the dicta of Buss P in WRT v The State of Western Australia [2021] WASCA 161 [90] - [91]. In my respectful view, his Honour's observations, which were made in relation to a multiple count sexual abuse case, merely point out that the acts or omissions out of which an alleged offence arises are not confined to the acts or omissions that the State has to prove in order to secure a conviction for the offence, and that those acts or omissions do not necessarily include all of the acts or omissions in respect of which evidence is admissible.
The State's position is that all the counts relate to Mr Larussa's involvement in a large‑scale methylamphetamine supply. The defence argues that the allegation that the accused is involved in the drug trade is a conclusion, not an act or omission for the purposes of cl 7(3)(b). I do not accept this contention.
The alleged act of possession of methylamphetamine on its facts is a drug dealing offence. If, as the defence concedes, the offences charged in counts 2 and 4 arise substantially from the same acts as count 1 so as to allow those counts to be joined, then the other alleged handgun and ammunition offences can also be said to be so connected.
The possession of methylamphetamine is connected with the Firearms Act offences in time and place. Counts 1 - 9 are all alleged to have been committed by the accused on 3 April 2017 at his farm at Breera, and counts 10 and 11, being similar to counts 2 - 9, on the same day at his residence in North Perth.
It makes no sense for the defence to maintain that the offences charged in counts 3 and 5 - 11 bear no connection to counts 2 and 4. If it is accepted that counts 2 and 4 have the requisite nexus with count 1, then all counts can be seen to have arisen substantially out of the same or closely related acts.
It is not disputed that the evidence of the handgun and ammunition in the LandCruiser is relevant circumstantial evidence with respect to count 1. The association between unlicensed firearms and illicit drugs is notorious. Section 19(1ab) of the Firearms Act makes possession of both at the same time a specific offence.
Whether the presence of the handgun and ammunition in the LandCruiser has an innocent explanation, that is, an explanation consistent with something other than the drug possession alleged in count 1, is a question for the jury. In my view, the presence of the handguns and ammunition found elsewhere at the farm and at the accused's home in North Perth is relevant to counts 2 and 4. It is cross‑admissible evidence. Furthermore, as the evidence of counts 2 and 4 is relevant to count 1, the evidence of the other firearms and ammunition is also relevant to that count. The evidence of those counts supports the State's case with respect to counts 2 and 4 and is also circumstantial evidence relevant to count 1.
I conclude that all counts have been properly joined pursuant to cl 7(3)(b), and further that the evidence of each count is cross‑admissible on each other. It follows that the accused Mr Larussa cannot be prejudiced in his trial by the joinder.
Of course, it goes without saying that at the trial the jury would be given appropriate directions on the use to be made of the evidence in this way, as well as how they would not be permitted to rely on the evidence.
The jury would be told that even if they were to find that the accused was guilty of one of the counts on the indictment, they could not move automatically to a finding that he was guilty of any of the other counts that they were considering; also, that by itself a finding of guilt on one count is incapable of proving guilt on another; and, further, that they could not find the accused guilty of an offence of which Mr Larussa had been charged unless they were satisfied beyond reasonable doubt by the evidence that the offence of which he was charged was committed by him.
In my view, the fact that the acts of possessing the handguns and ammunition the subjects of counts 3 and 5 - 11 have been charged as offences does not affect the use to which the evidence can be put as circumstantial evidence of count 1, except that the jury would be directed that they should not use the evidence of any of those counts in that way unless they were satisfied beyond reasonable doubt of the accused's guilt of that count.
The defence does not dispute the proposition that the evidence of one or more of the Firearms Act counts is capable of supporting the State's case in relation to another, if it establishes that the accused had a propensity to possess unlicensed handguns and ammunition.
The defence submission, however, is that in relation to count 1 only the evidence of counts 2 and 4 is cross‑admissible, and that the evidence of counts 3 and 5 - 11 is irrelevant and merely evidence of bad character.
That submission could only be sustained if the evidence of the counts sought to be severed were not cross admissible on counts 2 and 4 or counts 1, 2 and 4. It is conceded that the evidence of counts 2 and 4 is relevant to count 1.
In my view, the evidence of the other Firearms Act counts is evidence of a propensity to possess unlicensed handguns and ammunition that has significant probative value with respect to whether the accused possessed the unlicensed handgun and ammunition found in his LandCruiser. It is evidence that is likely to affect to a substantial degree the assessment by the jury of the probability of that fact. It is admissible as circumstantial evidence at common law and pursuant to s 31A of the Evidence Act 1906 (WA).
In my view, a jury would be capable of understanding and applying a direction to the effect that they cannot reason that just because the accused was in possession of unlicensed firearms and ammunition, that he must necessarily be a drug dealer or that he must have known of the drugs the subject of count 1. Juries are routinely given directions of this kind, as well as directions on inferential fact finding. So, for these reasons the application for severance is denied.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DM
Associate to Judge Staude
21 DECEMBER 2021