The State of Western Australia v Sinclair
[2019] WADC 109
•2 AUGUST 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SINCLAIR [2019] WADC 109
CORAM: TROY DCJ
HEARD: 25 & 28 JUNE 2019
DELIVERED : Ex tempore
PUBLISHED : 2 AUGUST 2019
FILE NO/S: IND 150 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JOHN FRANCIS SINCLAIR
JASON WICKHAM
Catchwords:
Admissibility of intercepted telephone calls involving third party - Hearsay - Course of conduct - Res gestae
Legislation:
Nil
Result:
Defence are not permitted to adduce any evidence of the intercepted calls
Representation:
Counsel:
| The State of Western Australia | : | Mr J G Nicholls |
| First Named Accused | : | Mr J J Scudds |
| Second Named Accused | : | No appearance |
Solicitors:
| The State of Western Australia | : | Director of Public Prosecutions |
| First Named Accused | : | Porter Scudds Barristers & Solicitors |
| Second Named Accused | : | Not applicable |
Case(s) referred to in decision(s):
Armstrong v the State of Western Australia [2012] WASCA 42
Baker v The Queen (2012) 245 CLR 632
Bannon v The Queen (1995) 185 CLR 1
Brown v The State of Western Australia (2011) 207 A Crim R 533
East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic [2019] WASCA 18
Kelly v the State of Western Australia [2013] WASCA 114
Pollitt v The Queen (1992) 174 CLR 558
R v Lovett [2012] WASC 511
Ritz Hotel v Charles of the Ritz Limited (1988) 15 NSWLR 158
Shrivastava v The State of Western Australia [No 2] [2011] WASCA 8
Subramaniam v Public Prosecutor [1956] 1 WLR 965
TROY DCJ:
[This decision was delivered extemporaneously on 28 June 2019 and edited from the transcript.]
Statement of issue
Are intercepted conversations between two third parties, neither of whom will give evidence at trial, admissible in the trial of an accused person? Do they tend to reveal a course of conduct which tends to make it more likely that one of the third parties was the offender, as opposed to the accused? Or are they inadmissible hearsay?
Background
At 11.20 am on 12 February 2017, police officers executed a Misuse of Drugs Act 1981 (WA) search warrant at an address associated with a Mr Jason Wickham, at 176A Lower King Road, Bayonet Head in Albany. During a search of Mr Wickham's vehicle they discovered a package in the air conditioning filter tray near the glove compartment. The package comprised two clip seal bags containing 53.53 grams of methylamphetamine. The package was wrapped in duct tape and photographs of it are in the brief at page 3.52 and then from 3.79 to 3.85.
A common quantity of methylamphetamine, if supplied in higher quantities, is two ounces, which equates to 56 grams. This consignment would be 2.47 grams less than that. Mr Wickham was arrested, and in due course pleaded guilty to possession of that drug with intent to sell or supply.
By indictment dated 7 January 2019, the present accused, Mr John Sinclair, is charged that he sold or supplied that quantity of drug to Mr Wickham on 11 February 2017. Whilst accepting, by way of a proposed formal admission, that he was at the relevant time a drug dealer, Mr Sinclair denies that allegation and his trial is set down for 26 August 2019.
On 4 November 2016, police had obtained lawful telephone intercept warrants for two phone numbers associated with Mr Sinclair. Police also obtained a lawful telephone intercept warrant in respect of Mr Wickham on 31 January 2017.
On 11 February 2017, the date of the alleged offence committed by Mr Sinclair, Mr Wickham was under surveillance. He was observed to arrive at Terminal 2 at the Perth Airport at 7.48 am on that date, having arrived by plane from Albany. Mr Wickham took a taxi to the premises of Auto Masters in High Wycombe, arriving at 8.46 am. He was carrying a duffle bag, photographed at various points in the brief, for example, page 2.43. A vehicle, a silver Ford Falcon 1ERM 860, was parked inside the workshop. This is the same vehicle in which the drugs were found the following day in Albany.
At 10.04 am a male identified as a Michael Herbert, reversed that vehicle out of the workshop and drove it away from the workshop, with Mr Wickham as a front passenger. The vehicle was driven around, before it returned at 10.10 am.
At 10.16 am Mr Wickham placed his duffle bag into the vehicle and was driven away again by Herbert at 10.18 am returning at 10.24 am. Mr Wickham then drove the vehicle away as the sole occupant at 10.28 am. Mr Wickham was then observed to arrive at Mr Sinclair's address at 11.04 am, leaving at 12.24 pm, returning again at 12.49 pm and then leaving again at 12.53 pm.
Mr Wickham was last observed in the vehicle near an address in Seville Grove at 1.40 pm. Inferentially, at some later time Mr Wickham drove that vehicle to Albany.
Mr Sinclair is forensically linked to two clip seal bags from the package found in Mr Wickham's car. The prosecution case against Mr Sinclair is an entirely circumstantial one.
The issue
On 1, 2, 5 and 9 February 2017, five particular calls between Mr Wickham and a Mr Blair Robinson, were intercepted and given the identifying numbers CCN 62, 123, 278, 556 and 856. The prosecution do not intend to call either Mr Wickham or Mr Robinson at the forthcoming trial. As I understand it, neither do the defence. The defence, of course, are not obliged to call any evidence.
The defence indicated an intention to cross-examine these calls into evidence. The prosecution objected to that proposed course, on the basis that the evidence that would be so elicited is inadmissible hearsay.
Potential relevance of the statements in the calls
It is common ground that a clear inference that reasonably arises from these calls, is that Mr Wickham had obtained drugs from Mr Robinson on at least two occasions prior to 11 February 2017. The importance of the intercepted calls, from the defence perspective, is that it opens up the possibility at least, that it was Mr Robinson who supplied Mr Wickham with this methylamphetamine. I understand it to be common ground that at the relevant time, Mr Wickham was a drug dealer. Whilst the material might suggest that one of his suppliers was Mr Robinson, it is of course the case that a person who deals in drugs and who receives drugs for that purpose, does not necessarily confine himself to one supplier. In terms, the fact that Mr Robinson has supplied drugs to Mr Wickham in the past does not mean, of itself, that Mr Sinclair did not supply these drugs to Mr Wickham on 11 February 2017.
Given that this is a circumstantial case, it is to be anticipated that the trial judge will direct the jury to the effect that they must consider all the evidence as a whole, in deciding whether there is a rational or reasonable inference, consistent with Mr Sinclair's innocence, open on the evidence. It would be open to a jury to assess whether Mr Sinclair has given an explanation that is reasonably open from a combination of answers given by witnesses in cross-examination, which would include these calls if permitted, any comments he made on a search DVD, and any evidence, if he chooses to give evidence.
If there is a rational, reasonable inference open on all the evidence consistent with Mr Sinclair's innocence, the jury must not draw the inference contended by the State, that is that Mr Sinclair supplied the drugs. In this case, the suggested alternative rational explanation is a simple one, namely someone else, probably Mr Robinson, supplied these drugs and not Mr Sinclair. The defence are not in a position to definitively say that Mr Robinson was the supplier, but say that he is the prime candidate.
Accordingly, as the prosecution properly acknowledged in its written submissions the evidence emerging from these intercepted conversations is prima facie relevant and therefore admissible, unless precluded by some other rule of evidence.
In addition to the cases helpfully cited by the parties in their respective written submissions, I have had regard to the comprehensive analysis of the law of hearsay conducted by the Court of Appeal in the relatively recent case of East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic[1] at [145] and onwards. I acknowledge, of course, that that was a civil case, but nonetheless the principles of the law of hearsay apply equally in civil and criminal cases. Mr Scudds, on behalf of Mr Sinclair, submits that the evidence is to be adduced not for the truth of its content, but in order to reveal a course of conduct so far as Mr Wickham is concerned. He submits that the evidence does not fall foul of the rule against hearsay. As I have noted, this consignment of 53.53 grams of methamphetamine said to be supplied by Mr Sinclair to Mr Wickham is 2.47 grams less than the more usual quantity of 56 grams.
[1] East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic [2019] WASCA 18.
The content of the calls
On 1 February 2017 there is an intercepted call, CSN 62, between Mr Robinson and Mr Wickham where Mr Robinson refers to:
Two bags together, should have been … 32 or something. And then one was 26.
Mr Wickham said, 'there's two small bags and one big one' and said he was 'six short'. Robinson said he would 'sort it'. He also inquired as to whether the quality was up to Wickham's standards.
In a second call on the same day, CSN 123, Robinson asked Wickham if he was 'happy to get rid of it' and asked 'it will move?'. Mr Wickham said, 'yeah but, I just don't understand the six less'. He said that (the package discussed) was wrapped in black and then wrapped in clear packaged boxing tape.
Mr Robinson said he weighed up two:
And they weighed perfectly and came to 54 and minus the, so there should have been 56.
In a further conversation the following day, 2 February, CSN 278, Wickham asked Robinson:
When were you going to be able to sort?
Robinson:
Sorted … I was, like, 'Would you mind organising tomorrow afternoon?'
Wickham:
What? And done.
Robinson:
Done.
Wickham:
So it's been dropped?
Robinson:
Yeah.
Wickham:
So it's not going to be short this time, hey?
Robinson:
Oh, nuh.
The conversation continued with Robinson saying:
I just put it in a little brown bag and sticky taped it away somewhere. This one is cool.
Wickham asked about the 'paperwork side of things'. Wickham explained to Robinson that he is going to buy him a Cryovac machine. Robinson was very slow to understand the advantages of that but eventually, through coded language, Wickham explained to him that it is a useful protection against sniffer dogs.
In a further conversation on 5 February 2017, CSN556, Wickham asked Robinson if there is anything missing out of this last two. Robinson said, 'Yeah. I told ya the Q, seven' (a reference, it seems, to 7 grams).
Wickham asked:
Out of this one I got off ya the other night?
Robinson said:
Yeah.
Wickham said he thought that was for the other one that was missing but Robinson said:
No. The Q was outta that one. That's what I picked up yesterday.
Wickham said he was not going to pay for something he is not getting.
Finally on 9 February 207, CSN 853, Wickham explains that he needs a flywheel first thing in the morning. Robinson asked:
If I drop it there at, like, 10 o'clock in the morning?
Wickham advised Robinson that he is 'flying up tomorrow night', that is, the evening of 10 February. Wickham then said to Robinson:
If you can have it there before 10 o'clock that'd be fucking sick.
The parties' contentions as to the purpose of these statements
The issue at trial will be whether, as the prosecution contend, Mr Sinclair supplied Wickham with these drugs when they met on 11 February 2017. Alternatively, as the defence contend, Mr Sinclair was shown Mr Wickham's drugs which he decided not to purchase but, inconveniently for him, left biological material matching his DNA behind.
In oral submissions Mr Scudds contends that these calls, in the context of other evidence that will be led, permit the following conclusions:
•Robinson supplies Wickham, who is a known drug dealer, with drugs.
•They spoke with each other by telephone on 9 February 2017.
•Wickham spoke of an intention to fly to Perth on the evening of 10 February.
•Robinson and Wickham agreed to meet on the morning of 11 February, ostensibly for Wickham to obtain some mechanical parts for a car.
•Wickham was under surveillance on 11 February 2017 and attended at a mechanic's at 8.46 am prior to going to Mr Sinclair's home.
•Robinson and Wickham discussed packaging the drugs in such a way that they would not be detected by sniffer dogs.
•When the drugs were seized by the police they were packaged in a way that is said to be consistent with that discussion.
•Wickham and Robinson discussed concealing the drugs in a car and the drugs in question were in due course found concealed near the glovebox of Wickham's car.
Defence counsel submits that this all reveals a course of conduct by Wickham. The defence maintain that they are not strictly relying on the truth of the content and the jury would be told they could not rely on the evidence for its truth. It is simply a course of conduct in relation to what Wickham allegedly did with the drugs, prior to being found in possession of it. The defence submit that it is an exception to the hearsay rule, because it explains why Mr Wickham would do certain things. It also makes it more likely that the drugs were supplied by Robinson, given the 2.46 gram discrepancy, which is consistent with Robinson's track record of undersupply, as it were.
The State submit that the course of conduct relied on by the defence leads to an inference that Robinson supplied these drugs to Wickham and there is no other purpose other than to admit it for its truth. That echoes the State's written submissions at [37]:
The evidence of the challenged calls is hearsay because the purpose for which it is sought to be adduced is to prove the truth of the express and implied assertions of the two parties.
In other words, as proof that Robinson supplied Wickham with drugs. That can be expanded by characterising the purpose as proof that Robinson supplied Wickham generally with drugs, and that he is the prime candidate for having supplied Wickham with the drugs found in Wickham's car on 12 February 2017.
The High Court's decision in Baker v The Queen
There is high authority for the proposition that the common law does not recognise an exception to the hearsay rule which renders admissible against or in favour of an accused an out of court statement made by a co-accused or a third party. This was most recently recognised in the High Court decision of Baker v The Queen.[2]
[2] Baker v The Queen (2012) 245 CLR 632.
The appellant, Mr Baker, failed in his endeavours to lead evidence of answers given by his co offender, 'LM', which were capable of being viewed as an admission of responsibility by LM for the fall from a window of the deceased. Mr Baker was convicted of murder whilst LM was acquitted.
French CJ and Gummow, Hayne, Crennan, Kieifel and Bell JJ noted at [6]:
At the date of the trial, the common law governed the admissibility of LM's statements in the appellant's case. Subject to recognised exceptions, the rule against hearsay precludes the admission of out of court statements as evidence of the fact asserted in the statement. In Bannon v The Queen, it was acknowledged that the common law of Australia has not to date recognised an exception for the out of court confessional statements of a co accused or a third party from the operation of the rule.
Their Honours then referred at [42] to the High Court decision in Bannon v The Queen:[3]
Bannon and his co-accused, Calder, were jointly charged with the stabbing murders of a man and his de facto wife. Shortly after the killing, Calder made statements to associates that were capable of being understood as admissions that she had stabbed the victims. Bannon sought to rely on those statements in support of his case that Calder had acted alone. He was granted special leave to appeal on the ground that the trial judge erred in refusing to allow the jury to take Calder's statements into account in exculpation of him. Bannon argued that the exception to the hearsay rule respecting statements against pecuniary or proprietary interest should be extended to include, at the instance of an accused, third party statements against penal interest made by a person who is unavailable to give evidence. Alternatively, he argued that the hearsay rule should be relaxed in the case of confessional statements adjudged as meeting a test of reliability. Calder's statements would not be admissible on either basis. The assertion on which Bannon sought to rely, that she acted alone, was not an asserted fact against Calder's penal interest. The admissions went no further than the implied assertion that she had wielded the knife, an assertion that was not inconsistent with the Crown's case that the two had acted in concert. The further implication, that she acted alone, was a 'dubious inference' lacking the degree of reliability on which Bannon's submission depended.
[3] Bannon v The Queen (1995) 185 CLR 1 [42].
Their Honours noted at [44] that Mr Baker's principal argument was constructed on a passage cited in Bakerv The Queen from Deane J's reasons in Bannonv The Queen, summarised at [43].
Ultimately their Honours stated at [53]:
The assertions in LM's interview did not provide unambiguous support for the appellant's case. There was no unfairness in the exclusion of those statements at Mr Baker's trial.
More generally, their Honours said at [56]:
The consequence of upholding the broad contention would be to effect a significant alteration to the common law of evidence in those states which to date have chosen not to adopt the uniform Evidence Act[4] or to modify the hearsay rule along the lines of the English legislation or otherwise. In circumstances in which the application of the hearsay rule in the appellant's trial did not occasion a miscarriage of justice, the invitation by the appellant to effect that change should be rejected.
[4] Which then, and now, includes Western Australia.
Heydon J gave separate reasons for dismissing the appeal, observing at [62]:
The appellant submitted that an out of court statement incriminating its declarant is admissible in an accused person's favour even when the declarant is alive, available and sitting in the courtroom in which the out of court statement is intended. But has simply chosen not to testify. Hitherto, Australian courts, apart from the Supreme Court of Queensland, have held that that submission is not the law. That position was challenged in Bannon v R, but the court did not overturn it. The appellant now challenges Bannon v R itself.
I remind myself that in the case of Baker, the appeal arose out of a joint trial involving Mr Baker and LM. That is not the case here. However, Mr Robinson and Mr Wickham are alive, theoretically at least available, but it seems will not be sitting in the courtroom during the course of the trial.
Hayden J dispensed with the appeal at [69] by saying that:
The appellant submitted that LM's out of court statements exculpated him and that those statements were reliable. Neither submission was correct.
More broadly, and for my purposes of greater moment, his Honour at [86] said:
There is a further danger in the introduction of a relaxed or flexible rule based on 'reliability'. In Pollitt v the Queen, certain Justices in the High Court employed the kind of thinking that the appellant advocated in this appeal to create a limited exception permitting parties to telephone conversations to be identified. The differences of opinion that emerged between those Justices illustrate that danger.
Hayden J continued at [87]:
Whatever the merits of a flexible application of the hearsay rule based on reliability, it would not be correct to indulge in that process here.
His Honour also observed at [91]:
The third argument from Bannon v R that the appellant advocated was that there exists a hearsay exception for statement exculpatory of an accused, where those statements are both reliable and reasonably necessary to prove a fact in issue.
Essentially, that is the argument here. There is no dispute as to what Robinson and Wickham said. So to that extent, the observations are reliable and it is said that they are reasonably necessary to prove a fact in issue, which is the identity of the supplier of these drugs.
As Heydon J noted at [91], Brennan CJ rejected this submission in Bannon. His Honour did so on the ground that this third proposed exception is fundamentally inconsistent with Australian authority.
The High Court's decision in Pollitt v The Queen
In Pollitt v The Queen[5] the prosecution's case against Pollitt was that he had shot and killed Lindsay Simpson by mistake, in intended performance of a contract he had made with one Dennis Allen that he, Pollitt, would murder one Alan Williams. McHugh J determined that evidence which amounted to hearsay was wrongly introduced by the prosecution. Because its admission did not result in any miscarriage of justice, McHugh J joined with the majority of judges in dismissing Pollitt's appeal.
[5] Pollitt v The Queen (1992) 174 CLR 558.
McHugh J observed[6] that
the conduct consists of nothing more than out of court statements by a person called Allen, which collectively assert, expressly or impliedly, that Allen paid Pollitt money to kill a person, that the wrong person had been shot, and that Pollitt would get the rest of the money owing to him when the right person was killed.
[6] Pollitt (623).
McHugh J also noted[7] that
the distinction between self-serving statements and original evidence, and between hearsay statements and original evidence, would be all but obliterated if a series of such statements as those in question could be admitted by classifying them as evidence of admissible conduct and not inadmissible hearsay. Accordingly, the evidence of the Berrys (witnesses called by the prosecution) concerning Allen's statements was inadmissible.
The decision in Brown v The State of Western Australia
[7] Pollitt (623).
I note that in the year before Baker was decided, the Court of Appeal in this State considered this issue in Brown v The State of Western Australia,[8] where a ground of appeal advanced on behalf of the appellant was that the confessional statements were capable of being evidence of the truth of what was said, and that the trial judge erred in directing otherwise.
[8] Brown v The State of Western Australia (2011) 207 A Crim R 533.
Mazza J (McLure P and Pullin JA agreeing) noted at [50] that a generally accepted statement of the rule against hearsay is found in Subramaniam v the Public Prosecutor as follows[9]:
Evidence of a statement made to a witness by a person who is not himself called as a witness, may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible, when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The rule is subject to common law and statutory exceptions. The evidence sought to be admitted in this case, sometimes referred to as an out of court third party confession is, leaving aside any exception, hearsay.
[9] Subramaniam v Public Prosecutor [1956] 1 WLR 965, 970.
Mazza J noted at [58] that
in Walton v R, R v Benz and Pollitt v R, some members of the High Court in some judgments proposed a relaxation in the rule against hearsay. The proposed relaxation would allow hearsay evidence to be admitted, where the trial judge considers that it has a high degree of reliability (citations omitted). There is, their Honours observed, no High Court case which states that such an approach may be taken, nor has the High Court yet recognised out of court third party confessions as an exception to the rule against hearsay.
As can be seen from the case of Baker that remained the position the following year when the High Court returned to the topic, and it remains the position to date.
The decision in R v Lovett
The most analogous case that I have discerned is a decision of Heenan J in R v Lovett.[10] One of the two accused standing trial, a Mr Petter, applied for three orders. Firstly, that he be permitted to play portions of the 'OBH audio recording of 29 July 2012'. This is a reference to a recording in which a Mr Webster, an alleged co-offender who pleaded guilty prior to the trial, discussed his brother-in-law Mr Lovett, Mr Petter's co accused.
[10] R v Lovett [2012] WASC 511.
Secondly, Mr Petter sought an order that he be permitted to play the portion of the above recording in which Webster stated:
I'll have a driver with me to take the stuff away, mate.
Thirdly, as an alternative, counsel sought an order that he be permitted to cross-examine police confirming that Webster had indicated the above. So what was sought to be done on behalf of Mr Petter in that case is very closely analogous, if not identical, to what is proposed in relation to Mr Sinclair.
Heenan J referred to Baker at [24] and said:
This concerned a question of the admissibility of out of court confessional statements made by one accused, which could be regarded as capable to some degree, of tending to exonerate another co-accused. It was held that those statements were not admissible. The court decided that assertions which directly or indirectly conveyed that the appellant was not involved in any assault on the deceased before his fall, were not against the co-accused penal interests and there was no reason to suppose that the co-accused apprehended that it was to his prejudice to have made admissions implicating himself alone, meaning that those parts of the statement were not admissible, even against him. Further, their Honours decided that third party confessions did not constitute an exception to the hearsay rule so as to allow evidence in those confessions to be admissible to exonerate a co-accused. The case contained some detailed discussion of what that is so.
His Honour continued at [25]:
Bakerfollowed and applied the earlier decision of the High Court in Bannon where it was held that similar statements were inadmissible in exculpation of a co-accused, because they're insufficiently reliable and probative of his innocence to satisfy any exception to the hearsay rule, even if, which was not decided, such an exception were to be recognised.
His Honour observed at [26]:
The case of Baker takes the matter one step further in declining to recognise any such exception. The same principle was referred to by the Court of Appeal in Victoria in the case of Tsang v the DPP (Cth) [2011] 255 FLR 41. The particular passages are found well into the judgment at paragraph 74 and 75…. their Honours said,
However, the statements by Ho, (one accused), that Charlie, (another accused) would make arrangements and that Charlie would tell Chan how to spend (or launder) the money, were not simply circumstantial evidence from which it could be inferred that Tsang was aware of the contents of the consignment. Rather they were hearsay assertions, from which the Crown sought to have the jury infer that the application was knowingly involved in arranging the trafficking of the imported drug. It follows that the evidence could only be admitted under the co-conspirators rule.
Heenan J agreed with that conclusion at [27] and concluded at [29] that the evidence proposed was not admissible in the proceedings either by the prosecution or by either of the two accused. To permit Petter to play portions of the audio could not be permitted because to do so would introduce impermissible hearsay evidence.
Heenan J noted at [30] that counsel for Mr Petter sought to distinguish the authorities on the basis that the evidence tended to identify the nature and scope of the alleged conspiracy or unlawful enterprise, and so by implication, to identify who were intended to be participants in it. His Honour considered:
But the problem with that submission is the same as with the issues which I have already been discussing. It would, if accepted, allow the evidence of a witness who has not given evidence in court, to be brought in by hearsay, to implicate or exonerate others at a time when the others are not shown to be members of the alleged conspiracy and therefore not within the co-conspirators rule.
Heenan J observed at [31]:
It would be, as was the evidence in Baker, to allow an unjustified exception to the hearsay rule, and for that reason, the submission must be rejected.
Conclusion on purpose of the statements
For my part, I am not satisfied that the speaking of the words in these conversations is a relevant fact per se, nor is the state of mind of Robinson and/or Wickham on various occasions between 1 and 9 February 2017 relevant. There is, it seems to me, an area of artificiality in the distinction that is sought to be drawn on behalf of Mr Sinclair.
If the sole purpose of the intercepted calls is to prove the truth of the implied assertion contained in the conduct, in this case, Robinson has been a supplier and did supply the 12 February 2017 drugs, it is inadmissible by reason of the hearsay rule. On the other hand, if evidence of the conduct is led as a relevant fact or as a fact relevant to a fact in issue, it is admissible to prove that fact, notwithstanding that it may also contain an implied assertion: East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic at [180].
The relevant fact here is who supplied Wickham with the 53 grams of methylamphetamine. The fact, relevant to that fact in issue, can only be that what was said by both parties in these calls makes it at least possible that Robinson and not Sinclair was the supplier.
In Popovic, at [182] the court said:
The identification of the purpose for which evidence is tendered is critical to the evaluation of whether the evidence infringes the hearsay rule (or an extension of it).
Their Honours continued at [188]:
… where conduct involves, or may involve, an implied assertion, the hearsay rule is not automatically rendered inapplicable simply because the proposed use of the evidence of the conduct is to support the drawing of an inference. Rather, in order to evaluate whether the evidence is sought to be used for a hearsay purpose, it is necessary to examine the reasoning by which the inference is invited.
Here, the inference is that Mr Robinson is a possible supplier.
Their Honours then observed at [189]:
… the fact sought to be inferred, being the fact of the advice Mr Panagoulias had been given, or not given, by Mr Popovic, was, by definition, a matter within Mr Panagoulias' knowledge.
The facts to be inferred here, namely that Robinson was a regular supplier of drugs to Wickham, and that he supplied these drugs found in Wickham's car on 12 February 2017 are also, by definition, matters within the knowledge of both Robinson and Wickham.
In considering and applying McLelland J's analysis in Ritz Hotel v Charles of the Ritz Limited (1988) 15 NSWLR 158[11] the court in Popovic concluded at [189]:
… the conduct or utterance in question - what Mr Panagoulias did and did not say to his wife - is more appropriately characterised as a subjective assertion involving his knowledge than as an objective event.
[11] Cited at [174] - [176] in Popovic.
In my view the statements exchanged between Robinson and Wickham are also more appropriately characterised as subjective assertions involving their respective knowledge rather than an objective event.
The impugned evidence is not irrelevant, but the observations of Pullin JA in Shrivastava v The State of Western Australia[No 2][12] at [42] are apt. In that case his Honour stated:
… but there is no unfairness. The appellant has merely encountered a rule of evidence. In many circumstances, a party to litigation may have evidence of a fact in an inadmissible form and which remains unproved because of an inability to obtain the evidence in admissible form. This happens every time that hearsay evidence of a fact is excluded during a trial. Hearsay evidence may be relevant but it is not admissible. Parties face this type of problem in the courts on a daily basis. The evidence the appellant seeks to give about what was said by Juror X may be relevant but it is not admissible.
[12] Shrivastava v The State of Western Australia[No 2] [2011] WASCA 8.
Similarly, as noted in the current edition of Cross on Evidence at [31155], sometimes the rule operates to the prejudice of an accused in a criminal case.
I conclude that whilst claiming that the purpose is simply to show the fact that the statements were made, to do so is pointless, per se. In fact, the purpose is to implicitly establish that Mr Robinson was holding himself out as a supplier of drugs to Mr Wickham. Put another way, establishing some fact narrated by the words.
In the way in which these statements would be used, they would amount, as was the case in R vLovett, to confessional statements by Robinson and, to an extent, Wickham.
The starting point remains the decision in Bannon, which has not been overruled, remains good law, and was probably taken a step further in Baker. Out of court confessional statements are inadmissible in exculpation of the accused. The High Court has concluded that there is no exception to the hearsay rule which would render admissible, either against or in favour of an accused, hearsay evidence of a confession made by a co-accused or a third party.
Res gestae
There was an attempt, in written submissions at least, to bring these conversations in as an exception to the hearsay rule because of the res gestae principle. Applying the well-known principles conveniently gathered in Armstrong v The State of Western Australia,[13] as vividly illustrated in Kelly v the State of Western Australia,[14] I am quite satisfied that in no sense could these conversations, which ended on 9 February 2017, be regarded as part of the res gestae of the events of 11 February 2017.
[13] Armstrong v the State of Western Australia [2012] WASCA 42.
[14] Kelly v the State of Western Australia [2013] WASCA 114.
As Toohey J noted in Pollitt:[15]
These deficiencies cannot be cured by simply calling in aid the concept of res gestae. The apparently simple Latin expression ('things done') cloaks considerable looseness of thought.
[15] Pollitt (611).
Conclusion
Accordingly, these conversations are inadmissible, and the defence are precluded from adducing them by cross-examination at the forthcoming trial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
Associate to Judge Troy2 AUGUST 2019
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