The State of Western Australia v Reid
[2020] WADC 148
•26 NOVEMBER 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- REID [2020] WADC 148
CORAM: GOETZE DCJ
HEARD: 9 NOVEMBER 2020
DELIVERED : 26 NOVEMBER 2020
FILE NO/S: IND KAR 65 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
BLAIR WILLIAM REID
Catchwords:
Application to exclude evidence of telephone intercepts not involving the accused - Turns on own facts
Legislation:
Evidence Act 1906 (WA)
Result:
Application succeeds
Representation:
Counsel:
| The State of Western Australia | : | Mr R P Arndt |
| Accused | : | Mr K G Robson |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | K G Robson |
Case(s) referred to in decision(s):
Ahern v The Queen (1988) 165 CLR 87
Tripodi v The Queen (1961) 104 CLR 1
Upton v The State of Western Australia [2008] WASCA 54
GOETZE DCJ:
The alleged offending
Mr Blair Reid stands charged on indictment KAR 65 of 2019 with one offence that, on 26 January 2019 at Karratha, he attempted to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. The offence is alleged to have been aggravated by involving a trafficable quantity of methylamphetamine.
Blair Reid has pleaded not guilty. His trial is listed as a priority two matter commencing on 7 December 2020 at Karratha.
The application
By application dated 2 October 2020, Blair Reid seeks the following directions:
…
2.a direction that only the evidence on the count on the indictment be admissible and a direction that the evidence on KAR 38 of 2019 not be admissible against him; and
3.a direction that only the mobile phone calls and SMSs where Blair William Reid is on the call or SMS be admissible against him.
…
Other directions sought have been resolved by agreement between the State and Blair Reid.
Indictment KAR 38 of 2019 involved 23 counts against Blair Reid, in respect of which he pleaded guilty to 21 counts. Two counts were discontinued.
The State case
The State alleges that Blair Reid engaged in street level dealing of prohibited drugs in Karratha, where he and his brother Bryan Reid lived. The State also alleges that they, together with Mitchell Henry and Katherine Lee Franklyn, who also both resided in Karratha, together with another man named Keane Lebrasse, who resided in Perth, agreed to have Mr Lebrasse deliver methylamphetamine into Karratha.
At trial, the State proposes to lead evidence of an agreement between each of the various persons referred to above to have methylamphetamine transported to Karratha. To prove the involvement of Blair Reid in that agreement, the State proposes to lead evidence of telephone conversations between those persons named above, other than Blair Reid. It is this which has given rise to the application. Mr K Robson, as counsel for Blair Reid, seeks to limit the State to only those telephone calls and attendances involving Blair Reid directly and to exclude all other calls.
The law
It is well settled that, as stated in Tripodi v The Queen (1961) 104 CLR 1, 7:
When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case. … 'It is an error to say that acts of one defendant, however numerous, and however pointedly in furtherance of the prohibited purpose, are necessarily admissible as overt acts of (an) offence against a co-defendant charged with conspiring with the first. They are not so admissible unless the two defendants are shown to be associated for that purpose, so as to make the purpose common to both.' It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others.
(citation and footnote omitted)
Tripodi has been followed in Ahern v The Queen (1988) 165 CLR 87, 92 - 93 and in cases in Western Australia, such as Upton v The State of Western Australia [2008] WASCA 54 [50].
The point to be made is that for evidence of telephone intercepts of persons other than Blair Reid to become admissible against him, there must be some agreement, combination or preconcert agreed between the various parties, including Blair Reid, to commit the alleged crime of attempted possession which enables one accused to act, or speak, for Blair Reid in furtherance of their common purpose.
So, the common purpose must be established by the State. Here, the purpose alleged in the indictment is that Blair Reid attempted, with others, to possess the four ounces of methylamphetamine transported by Mr Lebrasse to Karratha on 26 January 2019. In turn, this requires Blair Reid to have so intended to take possession of some or all of that methylamphetamine and to have done an act which is more than merely preparatory to the commission of the offence, alternatively that one or more of his co‑offenders engaged in such an act pursuant to the common purpose involving Blair Reid.
The telephone calls
From the transcript, at page 131, the prosecutor Mr R Arndt, advised that the only telephone conversations the State seeks to rely upon at trial to establish the common purpose are those referred to in the amended statement of material facts dated 18 September 2020, together with Blair Reid's attendance in Perth, as follows:
On 27 December 2018 Henry phoned Bryan Reid. During that call they discussed sourcing a large quantity of drugs if they can get it at a good price.
On 9 January 2019 Henry called Bryan Reid. They discussed Lebrasse bringing drugs to Karratha. Henry says he has spoken to Lebrasse and says that Lebrasse is asking for too much money. Henry and Bryan Reid discuss how they could better price and distribute drugs. Bryan Reid says he will contact Lebrasse.
On 12 January 2019 Blair Reid called Henry. Blair Reid told Henry that he and his brother have something in the pipeline.
On 14 January 2019 Bryan Reid called Henry. Bryan Reid said he was trying to contact 'this wanker in Perth' (referring to Lebrasse). Bryan Reid asked Henry to message Lebrasse on Facebook and tell him to call him. Henry agreed to do so.
On 18 January 2019 Blair Reid was in Perth and met with Lebrasse.
On 19 January 2019 Blair Reid was still in Perth. Blair Reid called Lebrasse. He told Lebrasse to let him know when he was ready and good to go. Lebrasse said he would.
Later that day Blair Reid phoned Bryan Reid. Blair Reid told Bryan Reid that he had spoken to him (referring to Lebrasse) that morning. Bryan Reid asked if Lebrasse was going to go with him (Blair Reid). Blair Reid said he was but that he (Blair) was pretty much ready to go. He said 'If he hasn't rung before fuckin' too late, I'm just gonna fuck off'.
On 25 January 2019 Franklyn phoned Bryan Reid. They discussed that Lebrasse has no vehicle to drive to Karratha and no cash to pay for a flight. Franklyn says 'I have Frequent Flyer points, I can chuck him on a plane if you wanna get him up here this weekend'.
(original emphasis)
On 26 January 2019, Mr Lebrasse flew from Perth to Karratha where he was arrested with 111 g of methylamphetamine (70% purity) wrapped in chux cloth. Mr Bryan Reid was then also arrested. Following these arrests, Mr Henry sent Blair Reid a text message requesting that he call him. Blair Reid did so. The amended statement of material facts then recites the following telephone calls, also relied upon by the State:
Henry told Blair Reid that Franklyn just phoned him and said that Lebrasse and Bryan had been arrested at the airport. Henry says that Franklyn told him to clear out, that Police will probably be there next.
Blair Reid phoned Franklyn. Franklyn told Blair Reid to 'clean house'.
Blair Reid phoned Henry. They discuss Bryan Reid taking Franklyn to the airport and Henry says that if Bryan Reid had taken him, he would have told Bryan Reid to wait in the car. Henry expresses concern about the content of Bryan Reid's mobile phone.
(original emphasis)
Discussion
The State relies on the above telephone calls and attendance in Perth to identify the agreement between various parties, and by inferential reasoning, that Blair Reid was to drive from Perth to Karratha with Mr Lebrasse and a supply of prohibited drugs.
The inferential reasoning that prohibited drugs were to be so driven to Karratha is said to be drawn from:
(a)the telephone intercepts on 27 December 2018 and 9 January 2019 between Mitchell Henry and Bryan Reid to source 'a large quantity of prohibited drugs … at a good price', and as to which, Bryan Reid would contact Mr Lebrasse;
(b)Blair Reid's previous contact with Mr Lebrasse;
(c)Blair Reid's statement that he and his brother had 'something in the pipeline';
(d)the meeting on 18 or 19 January 2019 in Perth between Blair Reid and Mr Lebrasse, followed by Blair Reid's telephone call with his brother on the same day;
(e)the fact that subsequently, Mr Lebrasse did transport four ounces of methylamphetamine to Karratha by air on 26 January 2019; and
(f)the further discussions between Mr Henry, Ms Franklyn and Blair Reid following the arrests of Mr Bryan Reid and Mr Lebrasse.
Mr Robson referred to the meeting on 18 or 19 January 2019 between Blair Reid and Mr Lebrasse as a failed attempt on that date for Blair Reid to transport Mr Lebrasse to Karratha. The State however, argues that this was not a failed attempt at all, but rather, when viewed in combination with the delivery into Karratha on 26 January 2019, was part of the alleged attempt.
From the telephone intercepts, it can be seen that Blair Reid spoke with Mr Henry on 12 January 2019 referring to 'something going' and 'something in the pipeline' with his brother Bryan. However, it is not the only inference available to say that this 'something' relates either to the sourcing of 'large quantities of drugs … at a good price', referred to on 27 December 2018, or to the four ounces transported on 26 January 2019 to Karratha by Mr Lebrasse. It is equally open to say that the 'something in the pipeline' referred to something else, including only small amounts of methylamphetamine to be obtained from his brother Bryan.
Further, the telephone call on 12 January 2019 between Blair Reid and Mr Henry is, at best, equivocal for the reason that, if following the calls on 28 December 2018 and 9 January 2019, Blair Reid was then a party to any agreement including himself and Mr Henry, he would not have needed to say to Mr Henry that he and his brother had 'something in the pipeline.'
From the transcript of this telephone conversation, it seems that, Blair Reid owed money to Keane Lebrasse and was to go and see him in Perth. Then, on 18 or 19 January 2019, when Blair Reid was in Perth, he met Mr Lebrasse. This is not disputed.
On 19 January 2019, Blair Reid spoke by telephone to Mr Lebrasse. Blair Reid asked Mr Lebrasse to let him know when he was 'ready or sorted whatever, you good.' Mr Lebrasse said that he would. Following this call some 4 ½ hours later, Blair Reid spoke to his brother Bryan Reid and advised that he was waiting to hear back from Mr Lebrasse, to whom he had spoken to that morning. Blair Reid informed Bryan Reid that he was waiting for Mr Lebrasse who was going to travel with him to Karratha. These matters then invite the question of what was it that was requested to be made 'ready or sorted whatever, you good'. As already noted, the State argues, inferentially, it was the drugs.
This inference cannot be drawn.
The evidence is that there was discussion between Bryan Reid and Mr Henry to source 'a large quantity of drugs … at a good price', with Bryan Reid indicating that he would contact Mr Lebrasse. However, this is the first time any agreement can be identified. Blair Reid cannot be shown to have been a party to that agreement as at the date of this discussion.
It must be accepted that Blair Reid acknowledged he met Mr Lebrasse in Perth and was waiting to transport him from Perth to Karratha. However, the calls between Blair Reid and Mr Lebrasse and Blair Reid's visit to Mr Lebrasse, together with his calls to his brother Bryan Reid on 19 January 2019, indicate only the involvement of Blair Reid with Mr Lebrasse to take him from Perth to Karratha and if there was any purpose for this travel, that purpose was not identified. There is nothing which indicates that this travel has any relevance to the 'large quantities of drugs … at a good price' or to the four ounces transported by Mr Lebrasse on 26 January 2019 to Karratha. Even if it does, this plan failed and Blair Reid returned to Karratha, without either Mr Lebrasse or any drugs. Blair Reid had no known further involvement with other parties to the agreement until after the arrests at the airport and then, that involvement was consistent with his street level dealing and the need for him to then remove any drugs or drug related paraphernalia from his residence.
It cannot be inferred that the only purpose of Blair Reid transporting Mr Lebrasse to Karratha was for the transport of a 'large quantity of drugs'. It is equally open to infer either that:
(a)Blair Reid was simply transporting Mr Lebrasse to Karratha, without any drugs, and possibly in payment or part payment of his own debt, without expectation of anything further; or
(b)Blair Reid seeking only a small amount of illicit drugs from Mr Lebrasse in order to meet his needs for street level dealing and that he did so as an interim measure until such time as the shortage of such drugs in Karratha and surrounding areas had passed.
Even accepting that the inference is open as required by the State that Blair Reid was to transport Mr Lebrasse from Perth to Karratha together with an unknown quantity of his prohibited drugs, the State then requires the drawing of a further inference that Blair Reid was thereafter to share in either all or some of those prohibited drugs. Apart from some propensity reasoning of Blair Reid's association with street level dealing, there is no evidence that Blair Reid was to share in all or some of the drugs. The State has not made any application pursuant to s 31A of the Evidence Act 1906 (WA).
There is nothing to link Blair Reid to the discussion on 25 January 2019 to fund Mr Lebrasse's flight to Karratha. There is nothing to link him to the four ounces Mr Lebrasse possessed on the following day. It cannot be said that it is the same delivery, if any, proposed on 19 January 2019 when Blair Reid planned to drive him to Karratha.
The telephone calls after the arrests may well go to show an association for the purpose of illicit drug dealing in general, however they do not show some preconcert involving Blair Reid in an attempt to take possession of some or all of the four ounces transported by Mr Lebrasse.
Exculpatory matters
It must be noted that there are a number of telephone calls involving Mr Bryan Reid indicating that he did not want Blair Reid involved in any agreement, including:
(a)on 8 January 2019, when speaking to Rebecca Knaggs (not charged) who, knowing Blair Reid was travelling to Perth, suggested that Blair Reid 'bring back some' prohibited drugs. Bryan Reid was not agreeable to this; and
(b)on 9 January 2019, when Mr Bryan Reid spoke to Mr Henry and Mr Lebrasse, Mr Bryan Reid did not want Blair Reid involved.
Further, between 17 and 20 January 2019, when Mr Bryan Reid sought to have Blair Reid provide transport for Mr Lebrasse to Karratha, Blair Reid at first refused to even visit Mr Lebrasse. On 22 January 2019, Mr Lebrasse did not want to drive with Blair Reid and began making other plans with Mr Bryan Reid for him to fly to Karratha.
Other telephone calls, not detailed above involving Blair Reid and others, show Blair Reid's dealings with methylamphetamine to be street level dealings.
However, it is necessary to put aside the matters referred to in [28], [29] and [30] above for the reason that the State case must be viewed at its highest.
Result
Telephone calls on 27 December 2018, 9 January 2019 and 14 January 2019, not including Blair Reid, should be excluded. There is no evidence of any agreement involving Blair Reid as at the time of these calls.
The evidence of Blair Reid's telephone calls on 12 and 19 January 2019 and his visit on 18 or 19 January 2019 to Mr Lebrasse can be admitted under normal principles. The meaning of the calls and Blair Reid's visit to Mr Lebrasse are matters for the jury to determine once all the relevant evidence is to hand.
The call on 25 January 2019 between Ms Franklyn and Mr Bryan Reid as to the funding of Mr Lebrasse's airfare by the use of Frequent Flyer points should not be admitted because there is no evidence of an underlying agreement, including that Blair Reid was party to the attempt on 26 January 2019.
The call on 25 January 2019 demonstrates that Ms Franklyn and Mr Bryan Reid had an interest in Mr Lebrasse arriving in Karratha with the drugs. It can be linked to Bryan Reid's calls from Mr Henry on 28 December 2018 and 9 January 2019 seeking to source 'a large quantity of drugs'. As such, the call on 25 January 2019 is relevant to the charged attempt but, only by those party to the agreement to possess prohibited drugs. It involves consideration of the intent that day of Bryan Reid and Ms Franklyn and their doing of an act in preparation of securing Mr Lebrasse's presence in Karratha on the following day with the prohibited drugs. In this way, Mr Bryan Reid and Ms Franklyn could act or speak for others in furtherance of the agreement. Then, on that following day, the attempt was made to take possession of those drugs.
The telephone calls on 26 January 2019 involving Blair Reid after the arrests are also admissible on basic principles.
Any evidence of matters from KAR 38 of 2019 should also be excluded from the trial of the present indictment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JB
Associate to Judge Goetze24 NOVEMBER 2020
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