The State of Western Australia v Pelle [No 2] - [2021] WADC 131

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PELLE [No 2] [2021] WADC 131
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:

Evidence - Criminal Law - Objections to admissibility of evidence in State case - Whether a police officer has expertise to give evidence of use of Blackberry devices for encrypted emails - Relevance - Other issues

Legislation:

Nil

Result:

Rulings made

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):

Anderson v The Queen (1992) 60 SASR 70
Marinovich v The Queen (1990) 46 A Crim R 282
Myers v the Queen [2015] UKPC 40

STAUDE DCJ:

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

The second‑named accused, Mr Larussa has applied for rulings on objections to evidence proposed to be led by the State at the trial of this matter. The evidence objected to relates to the first count on the indictment.

Evidence of Coen

The State proposes to lead evidence from a police officer, Sergeant Andrew Coen, in terms of his statement dated 16 August 2017. His evidence relates to the use of BlackBerry devices as a means of sending and receiving encrypted emails.
The police seized at places associated with Mr Larussa:
(a)two BlackBerry devices located at his farm at Breera on 3 April 2017, one located in the car driven by Pelle and one on the person of Mr Larussa;
(b)three BlackBerry devices located at the accused's residence in Ethel Street, North Perth the same day;
(c)a BlackBerry device located at 4 Gough Place, Noranda the same day;
(d)three BlackBerry devices located at North Perth on 12 May 2017; and
(e)one BlackBerry device located at North Perth on 13 May 2017.
The State intends to adduce evidence of the six devices found on the day of the alleged offending only. It is not going to adduce evidence of the BlackBerry devices subsequently located at the North Perth residence on 12 and 13 May 2017.
It is anticipated that Sergeant Coen will say that he has been employed by the WA Police for 21 years. From 2014 to 2017 he was seconded to the Australian Crime Commission. He has particular experience of the use of encrypted communication methods, including the use of BlackBerry devices. He deposes to having a number of sources of knowledge of BlackBerry devices as follows:
1.Within WA Police he is a member of an encrypted communications working party where members regularly discuss the use of BlackBerry devices using encrypted and other forms of encrypted communications. In this working party he is exposed to discussion about BlackBerry devices involving members of the WA Police, Computer Crime Squad, the Australian Criminal Investigation Commission and the Australian Federal Police.
2.He has personally been involved in the seizure of about 50 BlackBerry devices from persons suspected of using them to encrypt emails or being suspects in relation to various types of unlawful activity. With these persons he has engaged in conversation about the use of BlackBerrys.
3.On rare occasions he has been provided with access codes from people who have had their BlackBerry devices seized. This has enabled him to access content, to browse features and to operate the device. He has examined some of these devices.
4.He has previously regularly accessed and monitored a BlackBerry mobile service used for encrypted emails over a period of three weeks in the course of a WA Police operation.
5.In that operation WA Police purchased two BlackBerry devices from an organised crime suspect that he and another officer were able to use in order to learn how encrypted messages were composed, sent and received on the devices. At the conclusion of the operation he examined three BlackBerry devices seized from suspects.
6.He has read emails from a supplier of encrypted BlackBerry devices known as Phantom Secure. The emails explained the benefits and security features of the BlackBerry devices.
7.The websites of suppliers such as Phantom Secure provide information on encrypted BlackBerry devices.
8.In multiple investigations he had been able to listen to intercepted phone conversations and conversations recorded using listening devices and had heard suspects discussing encrypted BlackBerry devices, their benefits and how to operate them.
Sergeant Coen stated that encrypted BlackBerry devices are commonly used by people engaged in unlawful activity. Such devices were used to send emails only. They could be purchased for between $2,000 and $3,000 in a clandestine manner. The only operable feature of the device was email. Emails could be encrypted. The devices could be remotely wiped by a person sending an email to the device.
BlackBerry devices he had examined, purchased or worked with live had a number of common characteristics. In many cases, the BlackBerry devices had T‑Mobile SIMs (subscriber identity modules) or other overseas telecommunication service provider SIMs such as Bell and Jersey Telecomm. The devices had emails on them from Phantom Secure.
He was able to access two devices and to confirm that they were designed to send and receive encrypted emails only. The BlackBerry device models commonly encountered were called Bold and Curve. The devices had a generic home screen image that resembled a factory type setting as opposed to a personal screensaver. They had a message icon which showed how many unread messages were on the device. The devices all required a passphrase to access the device and a password to decrypt messages.
Sergeant Coen was regularly given BlackBerry devices to examine to determine if they were devices for sending and receiving encrypted emails. He would, on examination, look for such known characteristics of devices that were used to encrypt emails. In his statement he said how he would go about examining such a device to determine whether it was used for encryption.
He would examine the brand of the device and inspect the SIM. He would turn the device on to see if it required a passphrase. If he could access the device using a known passphrase he would go to the email application to see if there were any messages. If he hit on a message and was asked to enter another passphrase it was a sign that it was encrypted. He would then go to settings to look for an email address associated with the device.
He would then look for settings such as remote wipe, microphone disable and camera disable functions. He would then inspect the contents of the contacts area of the phone. He would then check the call register which he had always found to be blank as the devices were only used for email. He would then contact BlackBerry, the manufacturer, for information relating to the IMEI device number and the SIM.
His examination of the BlackBerry devices in this case was limited to ascertaining that the devices were BlackBerrys, that the SIM in each case was from an overseas service provider and that the device required a passphrase. He examined each of the devices and observed that each had characteristics of a BlackBerry device configured to be used for encrypted emails only.
Of the six that were seized on 3 April 2017, five had either a Jersey Telecom or Bell Mobile SIM. Each required a password. Three had an icon showing unread messages. In each case an inquiry of BlackBerry revealed that the device was associated with an email address that was configured such that it could not be attributed to any person.
The State has not accessed the devices so as to be able to download data, so what is contained in each device is unknown. The State's position is the possession of such devices is an indicium of drug dealing activity and is therefore relevant circumstantial evidence in the State's case with respect to count 1.
The evidence of Sergeant Coen sets out his experience as a detective, his sources of knowledge, his experience of using and examining BlackBerrys used for encryption, the characteristics of devices used for encryption and his observations of the characteristics of the devices seized in this case.
The State is not relying on the evidence to prove that the devices were in fact used to send and receive encrypted emails, but as a basis for a finding of fact on the part of the jury that the multiple BlackBerrys were capable of being used and were likely to have been used in that way in connection with the transportation of the methylamphetamine the subject of count 1, so it is part of the State's inferential case on possession.
Mr Larussa objects to the proposed evidence on the grounds of relevance and lack of expertise on the part of the witness. There is also a submission made to the effect that if the evidence is admissible, it should be excluded on discretionary grounds.
The defence submits that the witness, Sergeant Coen, purports to establish expertise by sources of knowledge that are not within his direct experience and are drawn from hearsay sources and that do not in fact qualify him to give the proposed evidence.
There is an objection to his assertion that BlackBerry devices are commonly used by persons engaged in unlawful activity because the emails are encrypted and therefore cannot be intercepted ensuring anonymity.
There is also an objection to his opinion that the BlackBerry devices in question had characteristics of a device configured to be used to send encrypted emails only.
The defence observes that the only evidence upon which Sergeant Coen's opinion is based is that each device was a BlackBerry, each had a SIM from a service provider such as had previously been seen in other encryption devices, and that the device was password protected.
The defence argues that in the absence of evidence of any of the contents of the devices, the proposed evidence that the devices found during the investigation shared characteristics with other devices used for encryption that Sergeant Coen has seen or dealt with was not logically probative of any issue in this matter.
The evidence is said to have little or no relevance or probative value and to be highly prejudicial because the evidence is to the effect that encrypted BlackBerry mobile devices are commonly used by persons engaged in unlawful activity, particularly organised crime, and that the devices located in the investigation had such characteristics. It is submitted accordingly that the probative value of the evidence, if any, is outweighed by its prejudicial effect.
The objection is answered in the main by a body of law that recognises that serving police officers can, by reason of their training and operational experience, give evidence of matters that are not matters of common knowledge and that their evidence can be informed by hearsay to some extent.
This is the kind of evidence that falls under the rubric of expert evidence, but is really what might be called esoteric evidence rather than evidence of expert opinion as such. It is essentially empirical, being evidence of the knowledge of the witness acquired through experience of criminal investigations.
It is a type of evidence that is frequently received in relation to drug cases to inform the jury of matters of which they are unlikely to have general knowledge. The facts sought to be proved by such evidence are generally facts that are relied upon to ground an inference of guilt in a circumstantial case.
The leading case in this jurisdiction is Marinovich v The Queen (1990) 46 A Crim R 282. Malcolm CJ and Kennedy J (301) held that the opinion of police officers based on their accumulated experience, combining personal observation with information received concerning the characteristics, availability, et cetera of heroin, by comparison with other illicit drugs, was relevant and admissible. Such evidence was held to be in the nature of expert evidence even though it may also involve factual evidence of personal experience and observation. Their Honours held that expert evidence about such matters necessarily involves some hearsay.
The case of Marinovich v The Queen was followed in Anderson v The Queen (1992) 60 SASR 70. Although Anderson v The Queen was a sentencing case, the Full Court of the Supreme Court of South Australia held that the evidence of a police officer of certain features of the cannabis market was admissible at common law as well as pursuant to the Criminal Law (Sentencing Act) 1988 (SA). Olsson J remarked that the reasoning in Marinovich was a counsel of plain common sense.
Marinovich has authorised the routine reception in this state of the evidence of experienced police officers as to the value of prohibited drugs, the weights in which prohibited drugs are sold, the terminology of the drug trade, and what are commonly called the indicia of drug dealing, that is, physical items in the vicinity of prohibited drugs such as tick lists, cash, clip seal bags, scales, multiple mobile phones and other items that may be seen to signal drug dealing activity.
More recently in Myers v The Queen [2015] UKPC 40, Lord Hughes, speaking for the Privy Council, observed that police officers have been accepted as expert witnesses in several different contexts and in many common law jurisdictions. In that case the disputed evidence was of gang behaviour that had been observed by an experienced police officer who qualified as an expert for that purpose. His Lordship went on, having observed that police officers had been permitted to give expert evidence about criminal behaviour including the customary practices of drug users, that:
Evidence of the practices, mores and associations of gangs, whether general or particular, is in a similar category. It has been received in several jurisdictions and there can, in principle, be no objection to it being given by a police officer providing that the ordinary threshold requirements of expertise are established and providing the ordinary rules as to the giving of expert evidence are observed.
In my view, the evidence of Sergeant Coen is relevant to inform the jury of the potential of BlackBerry devices, of which six were found, that can be associated with the accused, to be used to communicate encrypted emails, thus protecting the identities of the parties and the content of the messages themselves.
The evidence of Sergeant Coen does not purport to go further than to explain, by reference to his particular experience of BlackBerry devices, how they can be configured to be used solely for encrypted emails and how the BlackBerry devices in question possess the characteristics of devices used for encryption.
It may be that at trial there is a need for a voir dire as to Sergeant Coen's expertise that would involve him being examined and cross‑examined in that regard, but on the face of his witness statement I am satisfied that for present purposes he is qualified to give the proposed evidence and that a proper basis for his conclusion as to the characteristics of the devices is disclosed.
I do not consider that to the extent that his evidence is informed by hearsay it should be excluded. All expert evidence is so informed to some extent. That criticism on the part of the defence goes to weight only. Nor do I consider that the absence of evidence of the content of the BlackBerry devices precludes the expression of an opinion that they possess characteristics that are shared by other devices that have been shown to have been used for encryption.
The defence is sensitive to the sentence in Sergeant Coen's statement that reads 'Encrypted BlackBerry phones are commonly used by people engaged in unlawful activity' because of the generalisation that it asserts and the prejudice that could result from a jury concluding that because the accused has such a device, that he must be involved in criminal activity. That potential prejudice could be overcome by the witness giving evidence in a neutral manner, simply pointing out that encryption of emails affords anonymity and protects the communications from interception and retrieval. That said, it will, of course, be Sergeant Coen's evidence that his experience and knowledge has been acquired in the course of criminal investigations, including organised crime activity.
I consider he can properly give evidence that such devices are not normally purchased from retail outlets. He can give evidence that he has used devices that have been purchased by the police from clandestine sources in the course of a police operation. I see no reason why he cannot give evidence of the value of such devices provided that the source of his knowledge is disclosed.
Again, provided he gives the source of his knowledge, which may well be what he has observed in the settings of devices that he has examined, he ought to be able to give evidence that devices can be remotely wiped by the sending of an email. Ultimately, however, it will be a matter for the trial judge whether any particular aspect of Sergeant Coen's evidence should be excluded.
My decision, made without the benefit of a voir dire, is that in principle Sergeant Coen's evidence may be received as expert evidence of the matters to which he deposes in his witness statement having regard to the body of authority to which I have referred. I am satisfied that the evidence of the characteristics of the BlackBerry devices is relevant as circumstantial evidence in the State's case as to possession of the methylamphetamine and its probative value outweighs any prejudicial effect it may have. As I have remarked, the potential prejudicial effect is able to be mitigated.

Evidence of Edmunds

I turn now to the evidence of Rohan Edmunds. The objection in relation to that has been resolved in part, it seems to me, by what has been submitted. The State proposes to lead evidence of two small quantities of methylamphetamine and heroin respectively that were found on Mr Larussa when he was searched on 3 April 2017. The methylamphetamine weighed 0.71 g and the heroin 0.19 g.
Mr Edmunds, a scientist from the ChemCentre, tested the methylamphetamine and compared it with the larger quantity the subject of count 1. His analysis and comparison was inconclusive in terms of matching the two quantities. Although he opined that they had likely been manufactured from the same precursor and under similar reaction conditions, he could not say that they came from the same batch. So his evidence is, as the State concedes, neutral. It is not relied upon by the State for any purpose. The State accepts that it cannot associate the methylamphetamine found on Mr Larussa with the methylamphetamine the subject of count 1.
It follows that as it is not probative of any issue, the objection should be allowed. If the evidence assumes any significance between now and the trial its admissibility can be a matter for review by the trial judge.

Evidence of drugs found on accused

There is also an objection to evidence being led of the drugs themselves that were found on Mr Larussa's person. The basis of that objection is that the possession of these quantities of drugs is not relevant to the issue of his knowledge of the methylamphetamine in question, alternatively, that its prejudicial effect outweighs its probative value.
The defence submits that the possession of a small quantity of methylamphetamine does not support an inference of guilt of count 1. The State's position is that it tends to rebut innocent association with the larger quantity of methylamphetamine. In my view, the location of a quantity of methylamphetamine on Mr Larussa's person at the time of his arrest is a small but relevant piece of evidence in the State's case. In itself it may only tend to show that he was a user of methylamphetamine but that evidence is capable of being used together with other evidence to assess the probability of the fact that he was associated with the larger quantity and in any event, I think would be admissible as part of the res gestae.

Flight

As to flight, the State will allege that when Mr Larussa arrived at the farm property he saw the police and then reversed his vehicle at speed before trying to turn it around on the track leading to the farm gate. His vehicle was intercepted by the police. The State intends to rely on his attempt to leave as evidence of flight from which an inference of guilt can be drawn. It has been agreed that the issue of the admissibility of this evidence can be determined by the trial judge.

Cash and paraphernalia

This objection is to evidence of various items that were seized by the police that in the State's case are consistent with drug dealing and that would tend to rebut innocent association. I have dealt with the quantities of heroin and methylamphetamine that were found on Mr Larussa when he was searched.
In the LandCruiser driven by Mr Larussa, the police found a Samsung mobile phone and an Apple mobile phone on the front seat and a smaller mobile phone in the glovebox, as well as a Samsung mini tablet. The police also found a firearm licence covering four long arms consistent with farming activity.
The police also found various quantities of cash in the amounts of $7,650, $350 and $850 (x 2). The evidence of the mobile devices and the cash is relevant circumstantial evidence of drug dealing as such items are capable of being seen as indicia of drug dealing and thus consistent with the accused being in possession of the methylamphetamine.
In the spare bedroom of the farmhouse, the police found a box of Cryovac bags, disposable overalls, disposable wipes and a set of large commercial electronic scales. If in the State's case these items are to be relied upon as indicia of drug dealing, evidence of them, I consider is admissible for that purpose. It will be a matter for the jury whether the items signify drug dealing. It will be a matter for the jury on the evidence as a whole to decide what is to be made of those items.
Similarly, evidence of Cryovac bags, a Cryovac sealing machine and a set of electronic scales in the kitchen of the house at the farming property is relevant to the extent that it proves the existence of other items consistent with drug dealing. That evidence, too, is relevant to the State's circumstantial case.
At the accused's residence in Ethel Street, North Perth, the police located in the main bedroom cash in the amount of $67,000. In another bedroom they found $1,300 in cash. On the office desk there was a Vacuum Pro bag sealer and a Safescan cash counter.
In the third bedroom the police located a box containing a quantity of Cryovac bags and an Orved Vacuum Pro box. In a safe in the laundry the police located $15,000 cash and other items that included a spare key to the Honda Jazz.
The connection between the farm at Breera and the residence at Ethel Street, North Perth is established by the accused's ownership of both, his presence at both places over the course of a few days prior to 3 April 2017, and the presence of the Honda Jazz motor vehicle at both places.
In my view, it is not a precondition to admissibility of evidence of the indicia of drug dealing that the items be co‑located with the accused, or with the drugs in question. Whether they be items found in the farmhouse or at the house in Ethel Street, they are capable of supporting the inference of possession on which count 1 rests by disproving innocent association.

CCTV footage

There is CCTV footage that was captured at the accused Mr Larussa's home at North Perth on 25 March 2017 which depicts the Honda Jazz vehicle in which the methylamphetamine the subject of count 1 was found on 3 April 2017, arriving at the address driven by Mr Strangio who was also present at the Breera property on 3 April 2017.
Mr Strangio is seen to go into the house and to emerge with Mr Larussa a short time later, an unknown item in his hand, and approach the vehicle. The video then shows Mr Larussa going back inside the house before emerging with an orange plastic bag labelled Betts Kids that he hands to Mr Strangio through the passenger side door window of the vehicle.
The defence concedes that the CCTV footage is relevant to show that the vehicle was at Mr Larussa's home address on 25 March 2017, but objects to that part of the footage which depicts the passing of the orange plastic bag, the contents of which are unknown, through the door window of the vehicle. The objection is on the grounds of relevance.
The State submits that it shows what it shows and is relevant to the use of the vehicle as a conveyance for the drugs in question. The State will not be suggesting that the bag handed over by Mr Larussa contained drugs. It goes without saying, of course, that the jury will be instructed not to speculate about matters that are not in evidence, including the contents of the bag that is seen to be handed by Mr Larussa through the vehicle door window. The jury can be expected to obey that direction.
In my view, in a circumstantial case such as this, the CCTV video evidence is relevant to show not only an association between the vehicle, which on other evidence on the brief was purchased by Mr Larussa, and Mr Larussa's residence in North Perth, also its manner of use which includes as a conveyance by others of an item at the behest of Mr Larussa. So that objection is overruled.

Other items

There was a final aspect, that is, items seized on 12 and 13 May 2017, other than the Honda Jazz key and associated books. The State does not propose to adduce evidence of items that were seized after the date of the alleged offending except for the key and the vehicle documents, so that objection falls away.
So, in relation to the application dated 15 November 2021, my rulings are:
1.The evidence of Sergeant Coen is, in principle, admissible, the witness being on the face of his statement, qualified as an expert by experience and his evidence being relevant, and not liable to be excluded as a matter of discretion.
2.The evidence of Rohan Edmunds is not admissible as it is not relevant to any fact in issue.
3.The evidence of the methylamphetamine and heroin found on Mr Larussa's person is relevant and admissible.
4.The issue of the admissibility of evidence of flight is held over to be dealt with by the trial judge, if necessary.
5.The evidence of the cash and paraphernalia referred to in these reasons is relevant and admissible.
6.The CCTV footage captured on 25 March 2017 at Ethel Street is relevant and admissible.

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